text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TONY WILLIAMS, Defendant-Appellant.
    First District (5th Division)
    No. 1—88—0597
    Opinion filed November 8,1991.

      Randolph N. Stone, Public Defender, of Chicago (Edwin A. Burnette, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Christine Perille and Kathleen Hewlett, Special Assistant State’s Attorneys, and Renee Goldfarb, Assistant State’s Attorney, of counsel), for the People.
   JUSTICE MURRAY

delivered the opinion of the court:

Defendant, Tony Williams (Williams), was charged by indictment with the murder of Jennifer Higgenbottom. Following a jury trial, Williams was found guilty of murder. Subsequently, defendant was sentenced to 40 years in the Illinois Department of Corrections. This timely appeal followed.

On appeal Williams raises the following issues for review: (1) whether the trial court erred in admitting identification testimony when defendant did not have counsel at a preindictment lineup; (2) whether the trial court erred in allowing the State to question the jury pursuant to Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770; and (3) whether the jury was properly instructed on felony murder where defendant was not indicted for armed robbery.

The evidence presented at trial indicated that the following events took place.

On November 5, 1985, Jennifer Higgenbottom (Jennifer) lived with her mother, brothers and sisters at 11914 South Lafayette. She had been living with Derrick Smith up until two days earlier. At approximately 9 o’clock in the evening on November 5, Derrick Smith (Smith) arrived at the Higgenbottom residence and asked to speak with Jennifer. Jennifer’s brother, Derrick Higgenbottom, told Smith that she was not home since he knew she didn’t want to speak to him. Smith talked to Herman Higgenbottom about getting a television set that he, Smith, claimed belonged to him. Smith maintained the television set had been removed by Jennifer. Herman didn’t know anything about a television set. The two men argued, and Smith told Herman that he would return with “some guys” and take the television.

Smith left the Higgenbottom residence but returned about a half an hour later. He was accompanied by the defendant, who was carrying a sawed-off shotgun at his side. Both Herman and Derrick Higgenbottom saw defendant get out of Derrick Smith’s car and walk up to their porch. Smith told Herman that he wanted his television set. During the argument Jennifer came to the door. She told Smith to get off her mother’s porch. Jennifer left the door to call the police. Shortly she returned with Michelle Warren. Bonita and Darren Higgenbottom, another sister and brother of Jennifer’s, also saw defendant through the window. Darren also saw the gun in defendant’s hand. The witnesses were able to see defendant’s face since there were lights on inside the house and there was a streetlight on across the street.

The argument continued, and Derrick Smith and defendant said something to each other. Herman was unable to hear what was said since there was so much noise. Defendant then raised his gun and shot through the window of the storm door. Defendant’s bullet hit Jennifer in the face and she fell to the floor. Jennifer died as a result of the injuries sustained by the shot fired at her. Both Herman and Darren saw defendant and Smith run off the porch and get into Smith’s car.

Detective Maslanda arrived at the Higgenbottom home at approximately 10 p.m. to talk with the witnesses. He spoke with them and then began looking for Derrick Smith. The next day the detective went back to the Higgenbottom home and showed an array of pictures to the members of Jennifer’s family. Bonita, Derrick and Herman Higgenbottom viewed the photo array separately. Each person positively identified the defendant as the person he or she saw on the porch with the shotgun. On November 7, 1985, Smith was arrested and a warrant for defendant’s arrest was issued.

On December 13, 1986, defendant was arrested. Detective Pedersen conducted a lineup and had Jennifer’s brothers and sisters view it. The Higgenbottoms each viewed the lineup separately. The five members of Jennifer’s family identified defendant in the lineup. The lineup was conducted without benefit of counsel for Williams.

At trial the State elected to try this as a capital case. This election was premised upon the murder occurring during the commission of a forcible felony. After the jury returned a guilty verdict on the murder charge, the defendant elected to waive a jury for the death penalty proceedings. The State asserted that the murder was committed during the course of committing or attempting to commit an armed robbery. The State argued that defendant was armed and present with Smith when he demanded the television. Defendant also had stated that he wanted his brother’s property. The State’s position was that since defendant was demanding this property while armed with a shotgun, this murder occurred during an attempted armed robbery. Nevertheless, during the death penalty proceedings, the trial judge found that the crime of attempted armed robbery was not proven beyond a reasonable doubt so that the statutory factor did not exist. Defendant was sentenced to 40 years with the Illinois Department of Corrections.

We find no procedural and/or substantive errors in the case, and accordingly, we affirm the conviction and sentence imposed by the trial court.

I

First Williams argues that although he was advised of his fifth amendment rights there was never advice tendered as to his sixth amendment right to counsel. He maintains that the failure to tender these rights or warnings, and the concomitant failure to secure a waiver, violated Williams’ sixth amendment rights, where a lineup was conducted without benefit of counsel. Williams claims that his sixth amendment right to counsel was violated by not providing him with counsel at the time the lineup was conducted. This contention is totally without merit.

The lineup occurred after an arrest on an unrelated charge, 13 months after Jennifer’s murder. Detective Pedersen discovered the outstanding warrant for murder which had been obtained by the police more than one year earlier. Williams was advised of his Miranda rights. He was also informed of the outstanding warrant. Williams agreed to talk to the police officers and participate in a lineup. Williams testified that the police advised him that he had a right to an attorney during questioning but that he had never been informed that he had a right to an attorney during the lineup. Williams never asked for an attorney nor did he state that he did not want to participate in the lineup.

The constitutional right to counsel is guaranteed at the time adversary proceedings are initiated, not during the fact-finding process. The right to counsel attaches with the initiation of adversary proceedings against a defendant and that may occur by formal charge, preliminary hearing, indictment, information or arraignment. (People v. Hayes (1990), 139 Ill. 2d 89, 123, 564 N.E.2d 803; People v. Wilson (1987), 116 Ill. 2d 29, 50, 506 N.E.2d 571, 580.) The sixth amendment’s right to counsel guarantee assures that the accused receives the assistance of counsel when confronted with “the intricacies of the law and the advocacy of the public prosecutor” at trial. (United States v. Ash (1973), 413 U.S. 300, 309, 37 L. Ed. 2d 619, 626, 93 S. Ct. 2568, 2573.) It also insures that the defendant receives the assistance of counsel at certain “critical” preindictment proceedings, where the accused is confronted by the procedural system, an expert adversary or both, and where the results of the confrontation might determine the defendant’s fate and make the trial itself a mere formality. (United States v. Ash (1973), 413 U.S. 300, 309, 37 L. Ed. 2d 619, 626, 93 S. Ct. 2568, 2573; Kirby v. Illinois (1972), 406 U.S. 682, 689, 32 L. Ed. 2d 411, 418, 92 S. Ct. 1877, 1882; People v. Hayes (1990), 139 Ill. 2d 89, 123, 564 N.E.2d 803.) It has not been held that an arrest by itself triggers the right to counsel. (Wilson, 116 Ill. 2d at 50, 506 N.E.2d at 580, citing United States v. Gouveia (1984), 467 U.S. 180, 189-90, 81 L. Ed. 2d 146, 155-56, 104 S. Ct. 2292, 2298-99.) In People v. Wilson (1987), 116 Ill. 2d 29, 50-51, 506 N.E.2d 571, 580, the Illinois Supreme Court declined to find that adversary proceedings were initiated when a police officer presented a complaint to a judge and an arrest warrant was issued.

At the pretrial motion to suppress, Detective Edmund Leracz testified that the arrest warrant for Williams was issued by the police department and that it was not until after a lineup was conducted that the State’s Attorney’s office was contacted. In People v. Hayes, the Illinois Supreme Court stated that People v. Owens (1984), 102 Ill. 2d 88, 464 N.E.2d 261, People v. Thompkins (1988), 121 Ill. 2d 401, 521 N.E.2d 38, and People v. Wilson (1987), 116 Ill. 2d 29, 506 N.E.2d 571, demonstrate that in determining whether an accused’s sixth amendment right to counsel attaches upon the filing of a criminal complaint, the court must consider the degree to which the State’s prosecutorial forces have focused upon the accused. (Hayes, 139 Ill. 2d at 125.) In Hayes the prosecutor reviewed the criminal complaint against the defendant before it was filed in the circuit court. The court stated that “[t]he prosecutor’s involvement in the procurement of the warrant, however, was not significant and did not signal a commitment by the State to prosecute the defendant.” (139 Ill. 2d at 125-26.) The complaint for preliminary examination had been presented by a police officer, not an assistant State’s Attorney. The Hayes court went on to say “[t]he fact that a warrant was obtained prior to the defendant’s arrest was not sufficient to create trial-like confrontation contemplated by the sixth amendment.” Hayes, 139 Ill. 2d at 126.

The arrest warrant was obtained by police officers, and the State’s Attorney’s office was only contacted after the defendant’s lineup. Moreover, no formal charge, preliminary hearing, indictment, information or arraignment occurred until after defendant’s identification in the lineup. At the time of the lineup the prosecutorial involvement was minimal; thus, for the reasons set forth above, we find that there was no violation of defendant’s right to counsel.

Further, we note that Williams admits that “lineups conducted before indictment or some formal judiciary proceeding do not trigger the right to counsel,” but suggests an exception in this case because Williams “had, to all but the disengenuious [sic], become the accused.” We disagree with defendant’s argument, and in this era of senseless killings and rising crime rate, we find no reason to create an exception to the aforecited rule.

II

Twelve prospective jurors were excused for cause because they were not acceptable under the rule in Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770. “Wither-spoon” is a word that cannot as yet be found in Webster’s various dictionaries. It is also a word unknown to the common law. It found its origin in the case of Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770. To “Witherspoon” has become known as questioning a jury about its feelings regarding the death penalty.

Williams argues that the excusal of the jurors, which the defense found to be acceptable, deprived him of his right to a fair trial. He maintains that failure to grant a mistrial, as requested by the defense, further compounded the error. The defendant argues that Witherspoon-qualified juries are conviction prone and that the dismissal of satisfactory prospective jurors, but for their feelings toward the death penalty, was error. Defense counsel concludes argument on this issue by stating, “[e]ven if the normal qualifying of jurors in a death penalty case, pursuant to Witherspoon, is not violative of a fair trial, certainly the ruse of death eligibility, for the purpose of eliminating otherwise capable (not to mention favorable to the defense) prospective jurors deprived Mr. Williams of a fair trial.”

Both the United States Supreme Court and the Illinois Supreme Court have found that a jury questioned regarding the death penalty is presumed to be a fair jury on the question of guilt or innocence. (Lockhart v. McCree (1986), 476 U.S. 162, 90 L. Ed. 2d 137, 106 S. Ct. 1758; People v. Shum (1987), 117 Ill. 2d 317, 512 N.E.2d 1183.) Thus, we find that defendant’s argument that Witherspoon juries are conviction prone lacks merit. A trial court which is qualifying a jury pursuant to Witherspoon is in the best position to determine whether a prospective juror would be fair and, as such, deference must be paid to the trial judge who sees and hears the veniremen. (People v. Morgan (1991), 142 Ill. 2d 410, 437-38, 568 N.E.2d 755.) The defendant does not address this argument in terms of the dismissal of any particular juror. The defendant’s argument consisted only of general conclusory statements. After a careful review of the record, we find no evidence to support defendant’s argument that the jury was conviction prone.

Finally, the issue of the death penalty, contrary to the argument of the defendant, was properly pursued. The thrust of the State’s case was that Jennifer’s murder had been effected during an armed robbery. Defense counsel was aware prior to the voir dire process that the State was seeking the death penalty in this case. However, it was not until the second day of jury selection that defense counsel objected to the questions concerning the death penalty. Defense counsel requested a mistrial, or in the alternative, a dismissal of the jurors that had already been selected since the felony of armed robbery was not part of the indictment. The trial judge denied the motion for a mistrial and continued the voir dire questioning pursuant to Witherspoon.

“The erroneous exclusion of a prospective juror because of the person’s views regarding capital punishment, though it will not vitiate the jury’s determination of guilt, will necessitate a new sentencing hearing.” (People v. Seuffer (1991), 144 Ill. 2d 482, 508, citing Witherspoon v. Illinois (1968), 391 U.S. 510, 522, 20 L. Ed. 2d 776, 785, 88 S. Ct. 1770, 1777.) The Illinois Supreme Court in People v. Albanese (1984), 104 Ill. 2d 504, 524, 473 N.E.2d 1246, 1254, reaffirmed the Witherspoon questioning but found that the defendant’s argument concerning the jury’s impartiality to be irrelevant since the trial judge, rather than the jury, made the sentencing decision.

Since Williams waived a jury for the death penalty proceedings in this case, the jury was never asked to determine Williams’ sentence. We do not believe that the trial judge erred in disqualifying any jurors pursuant to Witherspoon questioning; however, even if any error existed, the argument is irrelevant due to the fact that the trial judge rather than the jury made the sentencing decision.

We find nothing in the record or the defendant’s argument to support his allegations that the jury was conviction prone nor do we find any support for the allegation that Williams was denied his right to a fair trial. Furthermore, we do not believe the trial judge erred in refusing to grant a mistrial.

Ill

Williams argues that instruction on attempted armed robbery, as the basis for felony-murder accountability in this case, was unwarranted, confusing and error, especially when considering the later finding of ineligibility.

The jury was given Illinois Pattern Jury Instructions, Criminal, No. 7.01 (2d ed. 1981), which states:

“A person commits *** murder when he kills an individual without lawful justification if, in performing the acts which cause death, he is attempting to commit the offense of armed robbery.”

Williams was not indicted for armed robbery nor was he convicted of the same. Defense counsel objected to the instruction on the basis that defendant was not charged with the offense of armed robbery. After arguments for the State, the trial judge ruled that the instruction would be given over defendant’s objection.

As a general proposition of law, both the State and the defendant are entitled to instructions which present their respective theories, even though they are supported by slight evidence. (People v. Williams (1983), 115 Ill. App. 3d 276, 450 N.E.2d 851.) The State’s theory of the case was based on its original contention that Williams killed Jennifer while attempting to commit the armed robbery of a television set.

Supporting the State’s theory were four witnesses who saw the defendant on the porch with a sawed-off shotgun. At the time, defendant was with Smith and Smith was demanding a television set. Williams told Herman Higgenbottom “he wanted his brother’s s — .” When the victim came back from calling the police, Williams shot her. This evidence justified the instruction, despite the fact that at the death penalty portion of the trial the trial judge determined that armed robbery was not proven beyond a reasonable doubt. Had the defendant been misled in his defense or exposed to double jeopardy, giving the instruction would have been error.

In People v. Allen (1974), 56 Ill. 2d 536, 543, 309 N.E.2d 544, the jury was given an instruction on felony murder even though the defendant was indicted for murder and not felony murder. The Allen court quoted the following from People v. Rosochacki (1969), 41 Ill. 2d 483, 492, 244 N.E.2d 136:

“We find that the defendant here was charged with murder and convicted of that crime, and even if a variance did exist between the type of murder charged in the indictment and the types described in the instructions, it would not vitiate the conviction unless it was of such a character as to mislead the defendant in his defense or expose him to double jeopardy. [Citations.] There is no evidence in this case whatsoever that the defendant was misled in his defense, nor did counsel at any time during the proceedings request additional time, allege surprise, or claim that it was impossible for him to prepare a defense to the proof being offered against him.”

Williams was notified prior to trial that the State would be proceeding under the felony-murder theory. Defense counsel did not allege surprise nor did he ask for a continuance for the purpose of preparing a defense to this charge. Nothing in the record indicates either that Williams was misled or that he was exposed to double jeopardy. Accordingly, we do not believe that the trial court erred in giving the instruction.

For all of the above reasons, we affirm the conviction and sentence imposed by the trial court.

Judgment affirmed.

LORENZ, P.J., and McNULTY, J., concur.


source: Caselaw Access Project

author: JUSTICE BUCKLEY

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRY BERRY, Defendant-Appellant.
    First District (1st Division)
    No. 1—89—0384
    Opinion filed November 4, 1991.

      Michael J. Pelletier and Anna Ahronheim, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Janet C. Mahoney, Special Assistant State’s Attorney, and Renee Goldfarb and Carol L. Gaines, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE BUCKLEY

delivered the opinion of the court:

After a jury trial, defendant Terry Berry was convicted of two counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 14(a)(2)) and one count of robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18 — 1(a)). The circuit court sentenced defendant to concurrent 60-year terms on the aggravated criminal sexual assault counts and a seven-year concurrent term on the robbery count.

Defendant contends on appeal that he is entitled to a new trial because: (1) the court erred in admitting “other crimes” evidence under the modus operandi exception where the other crime and the charged offense were not so similar as to earmark both as the “handiwork” of the same individual; (2) the court improperly told the jury during voir dire it would have no trouble concluding that the State had proven beyond a reasonable doubt that a crime had occurred as charged in the indictment; (3) the court, during voir dire and in instructing the jury, improperly referred to the complainant as a “victim” without simultaneously providing a neutral definition; (4) the robbery instruction misstated the State’s burden of proof; (5) the prosecutor argued facts during closing argument which were not in evidence; and (6) the cumulative effect of all errors operated to deny him a fair trial. We affirm.

The complainant, A.M., testified that, on the evening of July 24, 1986, she was working as a waitress at the “Mellow Yellow” restaurant in the Hyde Park neighborhood of Chicago. While walking home on the 5400 block of Blackstone Street in Hyde Park, complainant saw a man walking quickly towards her. The man, later identified in court as defendant, was well dressed, muscular and looked like someone who lived in Hyde Park and who it “would be safe to cross paths with.” As they passed, defendant held his head high and “murmured” something to A.M. Suddenly, defendant forcefully grabbed A.M. from behind. He pulled her head toward her right shoulder, covered her mouth with his hand and used his other hand to hold down her left arm. Defendant said “this is a stick-up,” and told her that if she screamed he would kill her.

Defendant pulled A.M. into a 10-foot-wide gangway between two houses. Defendant told A.M. to give him all her money and he would not hurt her. A.M. gave defendant $40, but defendant told her it was not enough and pushed her to the other side of the gangway. A.M. told defendant she had some change and handed defendant her apron, which contained the change. Defendant collected the change and, repeating he needed more money, pulled open A.M.’s shirt and looked in her bra for more money.

Defendant’s voice became more insistent. He told A.M. that if she would perform oral sex on him he would let her go. A.M. tried to run, but defendant grabbed her and threw her to the ground. Defendant got very angry, grabbed her around the neck and told her that she was a “stupid bitch” because he could break her neck. While choking her, he repeatedly asked if she understood. A.M. told defendant she did, and he stopped.

Defendant lifted A.M. to a sitting position and got up on his knees. Defendant unzipped his pants and put his penis in her mouth. A.M. testified that defendant began to “talk sexy,” saying things like, “I know you can make this feel really good.” When the situation did not progress, defendant told A.M. that she was going to give him “some sex.” Defendant momentarily released A.M., and she tried to run and yell for help. Defendant angrily responded by hitting A.M. in the head, causing her left temple to immediately swell. Defendant sat on A.M.’s hips and thighs and ripped her shirt apart. He then grabbed her pants and underwear and pulled them down and proceeded to force his penis into her vagina.

Defendant moved off complainant, and she sprang to her feet. While facing him from a three-foot distance, A.M. asked defendant how long he wanted her to wait while he got away. Defendant said nothing but wiped himself off with her apron. He looked around and walked to the opening of the gangway. He looked both ways, then walked quickly heading north.

After a few minutes, A.M. put on her pants and ran to a house where she banged on the door. Roxanne Friedman, who lived next door, came to A.M.’s assistance. A.M. told Friedman that she had been raped and asked her to call the police. Friedman took A.M. to her house and called the police.

Friedman later testified and corroborated A.M.’s testimony. Friedman added that A.M. appeared disheveled: her shirt was in shreds and covered with dirt; she had an egg-like bump on the left side of her head; and her right eye was beginning to blacken. Chicago police officer Lundin, who responded to Friedman’s call, testified to similar injuries, but also noticed bruises on A.M.’s arms. Lundin later took A.M. to the hospital where he turned her over to hospital personnel.

Following the incident, A.M. described her assailant as a muscular, black male having medium length, curly black hair. He used a hair preparation but not a lot of it. On July 25, 1986, A.M. viewed mug shots but could not identify anyone. A.M. also viewed a composite drawing. She told an officer that the sketch could possibly be of her assailant.

On December 18, 1986, A.M. viewed a lineup and started to shake when she observed defendant. A.M. identified defendant as her assailant. Detective Markham later testified and corroborated A.M.’s identification as well as adding the circumstances surrounding the lineup. In May 1987, A.M. was taken to the hospital where she gave blood and saliva samples.

Annette Kinsella testified that she was a nurse in the University of Chicago emergency room. Kinsella treated A.M. and was informed that A.M. had been vaginally and orally raped. Kinsella described A.M. as disheveled. Her blouse was torn and covered with dirt. A.M.’s injuries included an egg-like bump on the left side of her forehead, abrasions to her upper arm and swollen labia. An oral and vaginal swab and smear were taken. A.M.’s head and pubic regions were also combed for hairs.

Forensic serologist Christine Anderson testified that she analyzed evidence collected in connection with A.M.’s case. Anderson found the presence of spermatozoa on the vaginal slide but none on the oral swab or slide. Anderson also tested the vaginal swab to ascertain the blood and secretion type of both A.M. and defendant. Anderson found that defendant had type A blood and was a secretor and that A.M. had type 0 and was also a secretor. The swab demonstrated type A and H activity. Anderson stated that only 30% of the population had type A blood and was a secretor.

Forensic criminalist Maria Pulling testified regarding trace evidence. On September 10 and 11, 1987, she examined hair samples of A.M. and defendant. After explaining the procedure for identifying distinguishing characteristics of hair, Pulling testified that A.M.’s and defendant’s hair were not consistent with each other. Pulling further stated that she scraped A.M.’s blouse to collect all trace materials. She examined the trace materials under a stereomicroscope and observed several shafts and fragments of human hair. After comparing these shafts with her known samples from A.M. and defendant, Pulling found that several of the shafts were consistent with hairs from the complainant. Pulling also found one shaft which was consistent point for point with defendant’s pubic hair. She identified 29 characteristics of that hair which were consistent with defendant’s pubic hair, including one very rare characteristic. On cross-examination, Pulling admitted that the hairs found on the blouse could belong to someone else living in the Chicago area.

L.D. testified over defense objection about another sexual assault involving defendant. On August 11, 1986, she was living in Hyde Park and was 18 years old. Shortly after midnight, she was walking west down 55th Street to a friend’s house. On her way, she cut behind a bank’s parking lot located about two blocks from 5400 South Blackstone.

While behind the bank, L.D. was approached by a man whom she later identified as defendant. She did not suspect any danger. Defendant asked for directions to 55th and State Streets. She backed up because she thought a person living in Hyde Park should know how to get to that intersection. Defendant then grabbed her, putting one hand over her mouth and the other around her torso. She turned around, and while facing him, attempted to scratch his eyes. She testified that her fingers reached his face, but she was not sure whether she scratched him. L.D. also tried but failed to kick him. At some point, she felt that he was wearing a “pinky” ring and later told the police that he wore such a ring. Defendant pushed L.D. to the ground and said, “bitch, if you scream I’ll hurt you.” He said he did not want to hurt her and asked if she understood. He told her he had a gun, but she did not see one. He said, “bitch, I want your money,” and she told him she had none. She threw her purse away from him, and he grabbed it and told her to empty it. She did so, and he saw that she had no money.

Defendant then said to L.D., “bitch, I want some pussy.” She suggested they go to a nearby gangway because it was close to her friend’s house and her friend might hear her. Defendant pulled her off the ground and, while covering her mouth with his hand, forced her down the street in the direction of the gangway she had suggested. He stopped in a closer gangway around 54th Street.

In the gangway, he told her to take off her shirt. She told him that was not what he wanted, so he said, “bitch, take your pants off.” L.D. took off all her clothes from the waist down. Then he told her to sit on the ground and masturbate. She did as he ordered while he stood there staring.

Afterwards, he knelt on the ground and told her to come to him. He unzipped his pants and said, “bitch, suck my dick.” While kneeling on the ground, she did as he ordered. Then he told her to lie on the ground and asked her if she was “clean.” She said yes, and he asked her how old she was. She told him 18. Defendant then put his penis in L.D.’s vagina. When defendant was finished, L.D. dressed, and defendant told her to take off running. L.D. ran to her friend’s house.

L.D. testified that on August 11, 1986, she had a conversation with two police officers. She told them about the pinky ring and described her attacker as a muscular black male, 6 feet tall, 175 pounds, and having a dark complexion. He wore a “gheri-curl” hair style reaching a little below his ears and a thick mustache. On December 18, 1986, L.D. identified defendant in a lineup.

After the State rested, defendant called Cloteil Jackson. She testified that she and defendant dated and lived together from June to November 1986. In August 1986, Jackson did not see defendant with scratches on his face or rings on his finger. During the entire time they lived together, defendant wore a gheri-curl hair style which reached down to his neck, just short of his shoulders. A gheri-curl is a greasy-curled look. During the summer of 1986, he wore his hair much neater than the way it appears in the photograph of the lineup. He did not resemble the person depicted in the composite drawing shown to the complainant.

In July 1986, Jackson worked for Kelly Temporary Services during her summer break from school. She worked an average of three to four days a week during both the morning and afternoon shifts. She probably worked July 24. During the summer of 1986, she probably worked out of Kelly’s La Grange office. When she worked the day shift, she would return home at about 5 or 5:30 p.m. Defendant would return from work shortly after that time. If it was a week night, which July 24 was, Jackson and defendant would generally stay home.

Helen Berry testified that she was defendant’s sister. In May 1986, defendant had long, course, natural hair. Defendant changed his hair in May into a gheri-curl style. She explained that the gheri-curl processing is a permanent cold-wave chemical solution used to straighten hair. After it is straightened, tiny rods are put in the hair to give it tight curls. In August 1986, defendant had no scratches on his face and wore no pinky rings. He looked nothing like the composite drawing.

In rebuttal, Margo Wilke testified that she was the manager of the Palos Heights Kelly office in 1986 and 1987 and that she knew Cloteil Jackson. She stated that Jackson first interviewed with Kelly in October 1986 and, therefore, could not have received an assignment in July 1986. Jackson worked only 51 hours for Kelly in 1986, and those occurred in October, November and December. The State rested.

Cloteil Jackson testified in surrebuttal that she completed the application at the Palos Heights office in October 1986. She completed a different application to work at Kelly’s other offices. She transferred to the Palos Heights office in October 1986. Defendant rested.

Defendant’s first contention on appeal is that he was denied a fair trial by the improper admission of L.D.’s “other crimes” testimony. Generally, evidence of other crimes is inadmissible if relevant merely to establish a defendant’s propensity to commit crime. (People v. McKibbins (1983), 96 Ill. 2d 176, 182, 449 N.E.2d 821, 823, cert, denied (1983), 464 U.S. 844, 78 L. Ed. 2d 136, 104 S. Ct. 145.) Evidence of the commission of other crimes is admissible, however, when such evidence is relevant to prove any purpose other than propensity to commit crime, such as modus operandi, intent, motive, or absence of mistake. (McKibbins, 96 Ill. 2d at 182, 449 N.E.2d at 824; People v. Kimbrough (1985), 138 Ill. App. 3d 481, 484-85, 485 N.E.2d 1292, 1296.) It is within the sound discretion of the trial court to determine whether evidence of other crimes is relevant to a material issue and whether the probative value of such evidence outweighs its prejudicial impact; this determination will be overturned only if there exists a clear abuse of discretion. People v. Fuller (1983), 117 Ill. App. 3d 1026, 1036, 454 N.E.2d 334, 342-43.

The State proffered the other crimes evidence in this case pursuant to the modus operandi exception. The modus operandi or “method of working” exception refers to a pattern of criminal behavior so distinct that separate offenses are recognized as the work of the same person. (People v. Hall (1989), 186 Ill. App. 3d 123, 127, 541 N.E.2d 1369, 1371-72.) Between the offense offered to prove modus operandi and the offense charged, there must be a clear connection which creates a logical inference that, if defendant committed the former offense, he also committed the latter. (Hall, 186 Ill. App. 3d at 127, 541 N.E.2d at 1372.) This inference arises when both crimes share peculiar and distinctive features not shared by most offenses of the same type and which, therefore, earmark the offenses as one person’s handiwork. (Hall, 186 Ill. App. 3d at 127, 541 N.E.2d at 1372.) The offenses need not be identical but must share features which, although common to similar crimes in general, are distinctive when considered together. Hall, 186 Ill. App. 3d at 129, 541 N.E.2d at 1372.

In this case, to support its argument that the other crimes evidence was proper, the State directs this court to the following similarities: (1) each victim was a young, white female; (2) the attacks took place one block away and less than three weeks apart in a residential area within Hyde Park around midnight; (3) each victim was initially communicated to and then restrained in a similar manner; (4) each victim was threatened physically, called a “bitch,” asked if she understood, robbed, and then orally and vaginally raped in a gangway; and (5) each victim gave a similar description of her assailant and later identified him at a lineup and in court.

Defendant responds that many of the similarities listed above are common to crimes of this type. For example, defendant cites to the testimony that Hyde Park is a dangerous neighborhood and that robbery/rapes usually occur late at night upon young women walking alone who are usually threatened with physical abuse or physically abused and then removed to an isolated location where the assault occurs. Moreover, defendant notes that in crimes of this type, an assailant usually calls the victim names and asks if she understands that she will not get hurt if she complies with his demands.

Aside from his commonality response, defendant further responds that neither crime shares a single distinctive or signature trait. Rather, defendant notes that each crime is different in the following significant respects: (1) A.M.’s assailant “murmured” something and grabbed A.M. from behind while L.D.’s assailant asked her for directions face to face and then grabbed her; (2) L.D.’s assailant repeated the word “bitch” five times and used it prior to various commands while A.M.’s assailant used it only once while choking A.M.; (3) A.M.’s clothes were ripped off while L.D. removed her own clothes; (4) A.M.’s assailant ran away while L.D.’s assailant allowed L.D. to run away; and (5) L.D.’s assailant told her to masturbate and asked if she was “clean.” These dissimilarities, defendant asserts, preclude the two crimes from having the same author.

Despite defendant’s arguments, the circuit court did not clearly abuse its discretion in allowing L.D. to testify about her assault. Initially, we agree with defendant that the two assaults in this case do not share any one single feature which can be described as unique. (See People v. Tipton (1990), 207 Ill. App. 3d 688, 566 N.E.2d 352 (meat cleaver used in robbery); Hall, 186 Ill. App. 3d 123, 541 N.E.2d 1369 (victims marched along railroad tracks in broad daylight).) While the existence of such a feature makes for easier review, it is not a prerequisite to the application of the modus operandi exception. Compare Tipton, 207 Ill. App. 3d 688, 566 N.E.2d 352, and Hall, 186 Ill. App. 3d 123, 541 N.E.2d 1369, with People v. Johnson (1982), 107 Ill. App. 3d 156, 437 N.E.2d 436 (illustrating difficulty of determining whether crimes are sufficiently distinctive as to be like signature).

Here, both L.D. and A.M. identified defendant in court and during a pretrial lineup as their assailant. Their descriptions to the police after the incident, while different, nevertheless represent a reasonable description of defendant. The record additionally shows that both attacks occurred one block away from each other and less than three weeks apart. Both victims were confronted initially in a relatively open area and then suddenly and physically restrained. Both victims were informed that they were being robbed and, apparently due to their failure to carry sufficient funds, sexually assaulted, first orally and then vaginally. While differences in the two crimes exist and both share features common to crimes of this type, the similarities the crimes share are sufficiently distinctive when considered together to yield the inference that the same person authored both crimes. We reiterate that this court operates as a reviewing court in this matter and cannot merely substitute its judgment for that of the trial court. We only hold that under the clear abuse of discretion standard, the other crimes evidence was properly admitted. Defendant next contends that he was denied a fair trial when, during voir dire, the trial judge repeatedly made statements which “sent the unambiguous message that the State’s only burden was to prove that Mr. Berry committed a crime.” To support his contention, defendant directs this court to the following representative statements:

“THE COURT: I think everybody understands that if a crime has been committed, the State could very well prove that a crime has been committed beyond a reasonable doubt. The question would be whether or not this defendant committed that crime. And of course it serves no purpose to convict the wrong person. So what we’re concerned about is that each of you will be fair and impartial in arriving at that decision and could do so. * * *
There is no question about that. Now the issue is could you put aside — we all know what everybody thinks is criminal. That’s not the issue. The issue in this case is whether or not this defendant committed a crime as alleged by the State.”

The State responds that defendant has waived this issue on appeal by failing to object to the comments and by not including the error in his post-trial motion. Alternatively, the State responds that the comments were proper and otherwise did not rise to the level of prejudicial error.

Initially, we agree that defendant has failed to preserve this issue for review. Defendant failed to object to the comments when made and failed to voice an objection when the court specifically asked counsel whether they had any objections to the voir dire. Defendant also failed to raise this error in his post-trial motion. While defendant’s nonaction regarding this issue would generally result in waiver (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1131-32, cert denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274), we believe the plain error exception allows for review in this case.

Pursuant to this exception, “[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.” (107 Ill. 2d R. 615(a).) Judicial interpretation of this exception provides that review is permitted of a claimed error where the evidence is closely balanced or the error is so fundamental and of such magnitude that the accused was denied a fair trial. (People v. Herrett (1990), 137 Ill. 2d 195, 209-10, 561 N.E.2d 1, 7-8.) In the former situation, a reviewing court addresses the merits of the claimed error to preclude the possibility that an innocent man was wrongly convicted as a result of even a minor error. (People v. Carlson (1980), 79 Ill. 2d 564, 576-77, 404 N.E.2d 233, 238.) Where the evidence is not closely balanced, there is no need to consider the error. (Herrett, 137 Ill. 2d at 209, 215-16, 561 N.E.2d at 8, 10-11.) In the latter situation, the rule is invoked where it is necessary to preserve the integrity of the judicial process and provide a fair trial. Where the error does not rise to the level of plain error, the claimed error is waived. Herrett, 137 Ill. 2d at 210, 215-16, 561 N.E.2d at 8, 10-11.

In this case, applying the first part of the plain error exception, we do not believe the evidence is closely balanced to permit us to reach the merits of the claimed error. A.M. identified defendant in a police lineup and again in court. Christine Anderson testified that defendant was of the same blood and secretion type as the perpetrator. Marie Pulling analyzed hair fragments and concluded that a hair found on complainant’s blouse matched point for point with defendant’s hair. Finally, L.D. identified defendant as the perpetrator of a similar rape committed upon her. As for defendant’s evidence, we see defendant’s “alibi” as not necessarily placing defendant at home on the night of A.M.’s attack. In summary, our review of the evidence leads us to conclude that it is not closely balanced.

Turning to the second part of the plain error test, we recognize that a less rigid application of the waiver rule must prevail where misconduct of the trial judge is concerned. (People v. Sprinkle (1963), 27 Ill. 2d 398, 399-401, 189 N.E.2d 295, 297; People v. Kelley (1983), 113 Ill. App. 3d 761, 766, 447 N.E.2d 973, 977.) Because of this relaxed standard, and because the judge’s comments here deal with a most serious subject matter — the State’s burden of proof — we elect to resolve the plain error issue in defendant’s favor and address the merits of the issue. See People v. Mays (1989), 188 Ill. App. 3d 974, 544 N.E.2d 1264 (plain error exception applied to correct judicial misconduct); Kelley, 113 Ill. App. 3d 761, 447 N.E.2d 973 (same).

In this case, we conclude that reversal is not required. First, the comments here clearly do not rise to the same level of prejudice as did the comments made in Kelley, a case upon which defendant heavily relies. There, the judge gave to the jury, prior to voir dire, his personal opinion that defendant committed the acts charged in the indictment. Clearly, such an egregious comment did not occur here.

Second, the court’s remarks here are more innocuous than those made in People v. Freeman (1989), 182 Ill. App. 3d 731, 538 N.E.2d 681. In Freeman, the same trial judge involved in this case stated during voir dire: “We are not here to determine whether or not a crime has been committed, but whether or not the State can prove beyond a reasonable doubt that this defendant committed the crime.” In finding the comments did not deny defendant a fair trial, the court was influenced by the trial judge’s pre- and post-trial instructions that his comments were to be disregarded as well as by the overwhelming evidence of defendant’s guilt. The court also noted that the jury was properly instructed on the elements of each offense and on its duty to find each element of each offense proven beyond a reasonable doubt.

In this case, the court did not expressly indicate to the jury, as it did in Freeman, that the State did not have to prove the commission of a crime. Thus, the comments of the judge here are initially less prejudicial than the comments made in Freeman. Moreover, like Freeman, the court here instructed the jury that: “Neither by these instructions nor by any ruling or remark which I have made do I mean to indicate any opinion as to the facts or as to what your verdict should be.” (Illinois Pattern Jury Instructions, Criminal, No. 1.01 (2d ed. 1981) (hereinafter IPI Criminal 2d).) Additionally, like Freeman, there is strong evidence of defendant’s guilt. While defendant attempts to distinguish Freeman on the ground that the jury there was otherwise properly instructed whereas here, as we discuss later, the jury was not, we do not believe the erroneous instructions given in this case operate to distinguish Freeman.

Finally, the court’s motive in making the comments was to emphasize to the jury that, before it convicts “this defendant,” it must be convinced beyond a reasonable doubt that he committed the charged crimes. We do not believe that the jury could reasonably construe the judge’s remarks as a statement by the court that the State did not have to prove beyond a reasonable doubt that a crime was committed. For these reasons, we conclude that defendant has failed to show that he was harmed by the comments and, therefore, reversal is not required. See People v. Heidorn (1983), 114 Ill. App. 3d 933, 937, 449 N.E.2d 568, 573.

Defendant next contends that he was denied a fair trial when, (1) during voir dire, the trial judge referred to complainant as a “victim,” and (2) in instructing the jury, the trial judge used the term “victim” without simultaneously providing the neutral definition for that term provided in IPI Criminal 2d No. 11.66. (Supp. 1989).

The record shows that during voir dire, the court read the witness list to the jury. Prior to this reading, the court told the jury the purpose underlying this reading. During this explanation, the court told the jurors that they would not serve if they knew any of the witnesses on the list or if they knew the “victim.” It was in this context that the term “victim” was used.

We first note that defendant failed to object to the judge’s “victim” comment and did not include it within his motion for a new trial. The issue is, therefore, waived. As with defendant’s other voir dire allegation, however, we treat it under the plain error exception as it arguably pertains to the judge’s opinion that complainant was a victim.

As indicated, defendant must show the court’s “victim” remark was prejudicial. (Heidorn, 114 Ill. App. 3d at 937, 449 N.E.2d at 573.) Here, the evidence is overwhelming that complainant was victimized in this case. Moreover, this case does not involve the defense of consent. In such situation, the complainant’s status as a victim is a critical part of the State’s burden. Here, defendant’s defense involved mistaken identification and, therefore, the fact that complainant was indeed a victim was not readily disputed. Moreover, as previously indicated, the judge gave an instruction that his comments were to be disregarded and that defendant was presumed innocent until proven guilty by proof beyond a reasonable doubt. Finally, the use of the term “victim” served only to distinguish the complainant from the class of other potential witnesses who might testify at trial. For these reasons, we do not believe this isolated remark prejudiced defendant.

As for the jury instruction aspect of this contention, defendant notes that the term “victim” is used within the standard jury instruction definitions for “aggravated criminal sexual assault” and “force or threat of force.” (See IPI Criminal 2d Nos. 11.33, 11.63 (Supp. 1989).) Defendant claims the court’s failure to accompany the above instructions with the neutral IPI definition of “victim” impermissibly allowed the jury to assume a fact which the State had the burden of proving beyond a reasonable doubt.

We believe defendant has waived the right to assert this issue on appeal. As the State notes, defendant never objected to the instructions as given, proffered the suggested “victim” instruction, or raised any objection in his post-trial motion. While Supreme Court Rule 451(c) provides that “substantial defects [in jury instructions] are not waived by failure to make timely objections thereto if the interests of justice require” (134 Ill. 2d 451(c)), the interests of justice do not require that an exception be recognized in this case. Under this limited exception, an instructional error can be addressed on appeal where necessary to correct grave errors or when the case is close factually and fundamental fairness requires that the jury be properly instructed. (People v. Roberts (1979), 75 Ill. 2d 1, 14, 387 N.E.2d 331, 337.) We do not believe the omission of the definition of “victim” resulted in “grave” error to defendant and, as previously discussed, this is not a factually close case.

People v. Payne (1990), 194 Ill. App. 3d 238, 550 N.E.2d 1214, a case relied upon by defendant to avoid the waiver rule, is not factually analogous. There, the defendant was convicted for residential burglary with intent to commit a felony therein. In instructing the jury on this charge, the circuit court failed to provide a definition of the term “felony,” a term contained within the principal IPI instruction given in that case. The appellate court found the omission of this definition to be reversible error because defendant’s conduct, which the court labelled as “bizarre,” raised a serious question as to his intent as it existed upon entering the home. The court opined that without knowing what amounted to felonious behavior, the jury was precluded from determining whether defendant intended to commit a felony.

In this case, and unlike Payne, the term “victim” is not an essential element of the crimes charged against defendant. Moreover, as previously indicated, defendant never readily disputed that a sexual assault occurred, but rather contested his identification as the perpetrator.

A more factually analogous case is People v. Tannenbaum (1980), 82 Ill. 2d 177, 415 N.E.2d 1027. There, defendant was charged with felony theft. The jury was given all instructions necessary for its determination of defendant’s guilt or innocence except that no instruction was given on the element of the value of property stolen. The court held that the defendant was not denied a fair trial because of the overwhelming evidence that the stolen property exceeded the statutory amount. We believe Tannenbaum closely resembles this case. Therefore, we conclude that the absence of the victim instruction did not deny defendant a fair trial.

Defendant’s next contention concerns IPI Criminal 2d No. 14.04, the standard robbery instruction. The instruction given in this case, which was patterned after the above instruction, provided:

“To sustain the charge of robbery, the State must prove the following propositions:
First: That the defendant took United States Currency from the person or presence of A.M.; and
Second: That the defendant did so by the use of force or by threatening the imminent use of force.
If you find from your consideration of all the evidence that this proposition has been proved beyond a reasonable doubt, you should find the defendant guilty.
If you find from your consideration of all the evidence that this proposition has not been proved beyond a reasonable doubt, you should find the defendant not guilty.” (Emphasis added.)

Defendant contends that this instruction was erroneous because, under the standard jury instruction, the phrase “this proposition” in the third and fourth paragraphs above should be, respectively, “each one of these propositions” and “any one of these propositions.” Defendant contends he was denied a fair trial because the instruction, as given, did not require the State to prove each element of the robbery offense beyond a reasonable doubt.

As with defendant’s other allegations of instructional error, we are again faced with the issue of whether defendant waived the error concerning the robbery instruction. The record reflects that defendant failed to object to the instruction at trial, tender an alternative, or raise the error in his post-trial motion. While this state of the record frequently results in waiver, our supreme court has recognized that certain instructions, such as those pertaining to the burden of proof, the presumption of innocence and the elements of the crime charged, are so central to our constitutional guarantee of a fair trial that the failure to object to their omission does not result in a waiver. (See People v. Layhew (1990), 139 Ill. 2d 476, 564 N.E.2d 1232; People v. Ogunsola (1981), 87 Ill. 2d 216, 429 N.E.2d 861; People v. Fierer (1988), 124 Ill. 2d 176, 529 N.E.2d 972.) As the instructional error here deals with the State’s burden of proof as to the elements of robbery, we decline to treat the error as waived and “endeavor to determine whether it denied defendant a fair trial.” Layhew, 139 Ill. 2d at 486, 564 N.E.2d at 1236.

In People v. Harvey (1991), 209 Ill. App. 3d 733, 568 N.E.2d 381, this appellate court faced a factually similar instructional error. There, the jury was first instructed on the elements of murder, and then received the following instruction: “If you find from your consideration of all of the evidence that these propositions have not been proved beyond a reasonable doubt, you should find the defendant not guilty.” (Emphasis in original.) (Harvey, 209 Ill. App. 3d at 739, 568 N.E.2d at 385.) Defendant there contended that the failure to give the pattern jury instructions, which added the words “any one of” before the words “these propositions,” prevented the jury from acquitting defendant unless the jury had reasonable doubt as to all the murder elements, rather than just one. Harvey, 209 Ill. App. 3d at 739, 568 N.E.2d at 385.

On appeal, the court addressed whether the inaccurate instruction denied defendant a fair trial. In concluding it did not, the court placed principal reliance on People v. Layhew (1990), 139 Ill. 2d 476, 564 N.E.2d 861. In Layhew, the trial judge failed to provide the jury with a written instruction specifically informing it that defendant was presumed innocent until proven guilty beyond a reasonable doubt. (IPI Criminal 2d No. 2.03.) While recognizing the critical importance of this instruction, Layhew refused to adopt a per se rule which would mandate reversal where such instruction is not given. (Layhew, 139 Ill. 2d at 486, 564 N.E.2d at 1236-37.) Rather, in assessing whether a defendant was denied a fair trial in such a situation, Layhew adopted a totality of the circumstances approach, which required the court to assess the instructional error in light of “ ‘all the instructions to the jury, the arguments of counsel, whether the weight of the evidence was overwhelming, and other relevant factors.’ ” Layhew, 139 Ill. 2d at 486, 564 N.E.2d at 1237, quoting Kentucky v. Whorton (1979), 441 U.S. 786, 789, 60 L. Ed. 2d 640, 643, 99 S. Ct. 2088, 2090.

Applying the totality test to this case, we note that, prior to voir dire, the court imparted to prospective jurors on numerous occasions that defendant was presumed innocent of all charges and that this presumption remained throughout trial until the jury was convinced beyond a reasonable doubt from all the evidence that defendant was guilty. Again, during voir dire, the court repeatedly emphasized the State’s burden of proof requirement. Later, prior to opening statements, the court reminded the jury of its responsibility to sign a not-guilty verdict as to any and all charges if the State fails its burden of proof. Finally, prior to closing argument, the court reminded the jury that it was the sole arbiter of the facts and of determining whether the State had proven defendant guilty beyond a reasonable doubt.

Regarding jury instructions, several observations can be made. First, the charge pertaining to aggravated criminal sexual assault was given in accordance with IPI Criminal 2d No. 11.34 (Supp. 1989). This instruction informed the jury that all elements were to be proven beyond a reasonable doubt. The language used in this instruction to convey this message to the jury paralleled the language used in the robbery instruction except for the error of which defendant complains. Second, the robbery instruction at issue here began with the language: “To prove the charge of robbery, the State must prove the following propositions:” (Emphasis added.) The instruction then sets forth the two elements which must be proven. It is only in the closing aspect of the instruction that the error takes place. Third, the jury received IPI Criminal 2d No. 2.03, which informed the jury of defendant’s presumption of innocence and the State’s burden of overcoming this presumption by proof beyond a reasonable doubt.

As for the factor addressing counsel’s statements, our review of the record indicates that defense counsel in both opening and closing statements reminded the jury of the State’s burden of proving defendant guilty beyond a reasonable doubt.

Turning to the burden of proof factor, while we do not wish to undertake a debate as to whether the proof of defendant’s guilt was “overwhelming,” the evidence is not closely balanced and is clearly sufficient to sustain the robbery conviction. As Layhew indicates, overwhelming proof is not a prerequisite to affirmance of the verdict. Layhew, 139 Ill. 2d at 491, 564 N.E.2d at 1238-39.

After careful review of the totality of the circumstances, we are convinced that, had the jury been properly instructed, the results of the trial would not have been different. Accordingly, we believe the instructional error to be harmless error beyond a reasonable doubt. Layhew, 139 Ill. 2d at 492, 564 N.E.2d at 1239.

Defendant’s next contention relates to allegedly improper prosecutorial statements made during rebuttal argument. Defendant contends in particular that the prosecutor repeatedly made references to facts not in evidence.

We do not reach the merits of this issue as defendant has failed to preserve it for review. The record reflects that, while defendant objected to the comments when made, defendant failed to include any reference to the comments in his post-trial motion. Accordingly, defendant has waived this issue for review. People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1131-32, cert. denied (1988), 488 U.S. 917. 102 L. Ed. 2d 263. 109 S. Ct. 274.

We also do not believe the plain error doctrine saves this issue. The record reflects that after the alleged improper comments were made, the court sustained defense counsel’s statements and instructed the jury to disregard them. The court also reminded the jury to recall the facts. At the close of arguments, the court quickly reminded the jury that counsel’s arguments were not evidence but only their belief of what the evidence showed. Finally, the jury also received IPI Criminal 2d Nos. 1.02 and 1.03. These instructions reminded the jury that it was the sole judge of the witnesses’ testimony and that any comment by counsel not supported by the evidence was to be disregarded. For these reasons, we do not believe the prosecutor’s statements rose to the level of plain error.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed. In light of the dispositions reached on the preceding issues, we do not address defendant’s remaining issue that the cumulative effect of all the errors operated to deny him a fair trial.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

MANNING, P.J., and O’CONNOR, J., concur.


author: JUSTICE JOHNSON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY WATSON, Defendant-Appellant.
    First District (4th Division)
    No. 1—88—2007
    Opinion filed November 7, 1991.
    Rehearing denied February 10, 1993.

      Rita A. Fry, Public Defender, of Chicago (James S. Jacobs, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Joseph Brent, and David Stabrawa, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JOHNSON

delivered the opinion of the court:

After a jury trial in the circuit court of Cook County, defendant, Larry Watson, was found guilty of aggravated criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 14) and attempted aggravated criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 8 — 4). He was sentenced to 17 years in the Illinois Department of Corrections with three years’ mandatory supervised release for the criminal sexual assault charge. On the attempt charge, defendant was sentenced to serve a term of eight years to run concurrently to the 17-year term. On appeal, defendant contends that (1) the trial court erred in denying his motion to suppress statements, since they were the product of physical coercion; (2) the trial court erred in finding that his Miranda warnings before interrogation were proper; (3) the trial court erred in not supplying the jury with a guilty verdict form for each count charged; (4) there was insufficient evidence to prove him guilty beyond a reasonable doubt as to the charge of attempted aggravated criminal sexual assault; and (5) the trial court abused its discretion by not considering the mitigating circumstances and his potential for rehabilitation in sentencing.

We affirm.

Complainant, who was 16 years old at the time of the incident, testified that on December 20, 1986, at about midnight, she stopped to speak to a friend who was in the company of defendant on the corner of 103rd and La Salle Streets in Chicago. The witness stated that defendant was wearing a black jacket with a white fur collar and white pinstripe pants. Police later used this description to apprehend defendant. She further testified that after her friend left she and defendant continued their conversation as they walked down the street. Complainant stated that defendant asked for her telephone number and that she waited while he borrowed a pen from some passersby. The witness then testified that defendant told her to turn around so he could give her his telephone number. When she turned to face defendant, he was pointing a gun at her stomach. Complainant testified that she engaged in vaginal intercourse and oral copulation at gunpoint. When she appeared to be uncooperative, defendant would slap her in the face and tell her to “get right.” The initial reason complainant gave for being forced to pull her pants down was so that defendant could engage in anal intercourse.

Defendant testified that he considered his conversation with complainant to be “friendly.” He stated that it was complainant who suggested that they have sex and asked him if he had any money that he could give her. The witness stated that he did not harm complainant. He did testify that he gave her money but stated, contrary to complainant, that the money was not given in exchange for sexual intercourse. Thereafter, the two went their separate ways.

Complainant testified that she went home and told her mother what had happened, and that her mother called the police. The police transported her to a neighborhood hospital. She was treated by Nurse Linda Healy. Healv testified that upon arriving at the hospital the victim was not crying nor was she visibly upset. She further stated that the victim had no bruises, lacerations, internal or cervical bleeding. The parties stipulated that the victim’s vaginal smear was positive for spermatozoa while her oral smear was negative and that there was no finding of any vaginal bruises or lacerations. The officers then transported the victim to the police station where she viewed a lineup and identified defendant as the person who had raped her.

Defendant testified that he went to the basement apartment of a family friend, Leonard Leverette. He stated that before Leverette could open the door, the police, Officers Alexander Curd and Robert McKeever, came into the basement stairwell and arrested defendant. Officer Curd testified that the stairwell was dimly lit and that the defendant appeared to be hiding in a mound of garbage. Officer Mc-Keever testified that when defendant did not respond to Officer Curd’s order to come out with his hands up, he (McKeever) then kicked defendant in the head “pretty hard.” Officer McKeever then stated that he discovered the gun in some nearby bushes. Leverette testified, contrary to the arresting officers, that there was no trash in his basement stairwell. Leverette also stated that when defendant was arrested there were no marks or scars on defendant’s face when he left the scene in the squad car.

While in the police car, Officer Curd testified that defendant was given his Miranda rights and that defendant indicated he understood his rights but denied he had any involvement with the rape. Officer McKeever testified that defendant was handcuffed to the wall while in custody at the police station. Officer McKeever then began questioning him about the incident.

Defendant testified that he suffered physical abuse when his answers were not satisfactory. As a result, he sustained several injuries. The one he complained about was a deep cut over his right eye. Defendant testified that he told Officer McKeever he would sign a statement implicating himself in a sexual assault provided he was taken to the hospital for treatment. The witness stated that he signed this statement because he “was tired of being hit.” At the hospital, he was treated by Nurse Healy. He received four stitches above his right eye. Officer McKeever testified that while at the hospital he told defendant, “it really did not make sense for him to sit and [say] he did not know anything about this when the person that was involved gave such a vivid description and the description fit him.” Officer McKeever further stated that shortly thereafter defendant told him that he had committed the rape.

When defendant returned to the police station, he met with Detective Daniel McWeeny and Assistant State’s Attorney Bertucci. Defendant testified that he signed a written statement prepared by Assistant State’s Attorney Bertucci. He stated that he signed the statement because he was being threatened by Officer McKeever. Bertucci testified that he noticed defendant’s eye and was told by Detective McWeeny that the injury occurred during arrest. He also testified that defendant indicated that he agreed with this explanation. Further, Bertucci testified that defendant told him that he “had been treated okay” by the police.

On appeal, defendant first argues that his written and oral statements were the product of physical coercion. The State maintains that it met its burden of proving defendant’s confession was voluntary and that the allegations of physical abuse and coercion were unsubstantiated. The trial court agreed with the State’s finding.

The standard for determining the voluntariness of a statement is well established. In People v. Prim (1972), 53 Ill. 2d 62, 70, the court stated:

“Whether a statement is voluntarily given depends upon the totality of the circumstances. The test is whether it has been made freely, voluntarily and without compulsion or inducement of any sort or whether the defendant’s will was overcome at the time he confessed. [Citation.] In making its decision the trial court need not be convinced beyond a reasonable doubt, and the finding of the trial court that the statement was voluntary will not be disturbed unless it is contrary to the manifest weight of the evidence.”

The trial court’s finding that defendant’s statement was voluntary is not contrary to the manifest weight of the evidence. Defendant’s allegation that his statement was involuntary is supported only by his own testimony and the defense’s attempt to use the testimony of Healy and Leverette as corroborating testimony.

Defendant testified that the injury to his eye occurred at the police station while being struck about his right eye and face with Officer McKeever’s fists. This testimony is contrary to that of Officers McKeever and Curd. They testified that defendant’s eye injury occurred at the scene of the arrest. The testimony of Healy was used to show that defendant’s testimony was corroborated by the evidence. At trial, the following colloquy took place:

“Q. I will bring your attention to 4:43 in the morning, were you assigned to a patient, a Larry Watson?
A. Yes, I was.
Q. Do you recall what he was brought in for?
A. He got hit with a fist and he sustained a laceration above his eyebrow.
Q. And would that be a cut over his right eye?
A. A cut, right.”

However, on cross-examination Healy’s testimony was shown to be based solely on defendant’s version of the events as he explained them to her while being treated at the hospital. The cross-examination of Healy, in pertinent part, is as follows:

“Q. You look at where the accident happened don’t you?
A. Not usually, I just am concerned with what his complaint is.
Q. And that is what he is saying what happened, right?
A. Right.
Q. And you have nothing else to go on except from what he is saying, right?
A. Right.
Q. Did you talk to the police officers at all?
A. No I didn’t.”

The trial court found that the testimony of Leverette did not corroborate defendant’s testimony. Leverette only saw defendant briefly as defendant was being arrested and taken away in the squad car. We do not believe the trial court’s finding that defendant’s testimony was not corroborated was against the manifest weight of the evidence.

Further, Officers McKeever and Curd testified that defendant’s eye injury occurred at the time of his arrest. “[W]hen it is evident that a defendant has been injured while in police custody, the State must show, by clear and convincing evidence, that the injuries were not inflicted as a means of producing the confession. [Citations.] This requires more than the mere denial by the State’s witnesses ***.” People v. Wilson (1987), 116 Ill. 2d 29, 40.

Not only did the officers testify as to the circumstances of the injury, but Bertucci testified that the defendant, himself, told Bertucci that his eye injury occurred at the scene of the arrest. Thus, the only significant evidence of coercion was the subsequent statement by defendant. This circumstance was addressed in People v. La Frana (1954), 4 Ill. 2d 261, 267, where the court explained:

“Where the only evidence of coercion is the defendant’s testimony, and where this is contradicted by witnesses for the People, then of course the trial court may choose to believe the latter, and our recognition of the superior position of the trial court to evaluate the credibility of the witnesses before it makes us reluctant to reverse its determination.”

We find that the trial court acted within its discretion. We cannot overrule unless the finding was against the manifest weight of the evidence. We do not find that the trial court abused its discretion or that the finding was against the manifest weight of the evidence.

Even if we find that defendant’s statements were the product of physical coercion, the evidence proving defendant’s guilt remains overwhelming. Complainant testified that she had been raped. The witness stated that after the rape occurred, she went home and told her mother what had happened. Her mother called the police and did not allow complainant to bathe. The police took complainant to the scene of the rape and then to the hospital. Complainant’s vaginal smear v/as positive for spermatozoa. She testified that the sexual assault occurred at gunpoint. Police officers later found a gun in the bushes near the scene of the arrest. Defendant matched the specific description given by complainant to the police and she identified defendant in a lineup at the police station.

We therefore hold that the trial court properly weighed the totality of the circumstances and that its decision that defendant’s statement was voluntary is not contrary to the manifest weight of the evidence. Therefore, we will not disturb its decision on review.

Defendant also argues that his statements should be suppressed because he was not fully apprised of his Miranda warnings before interrogation. The purpose of the Miranda warnings is to insure that defendant is aware of his right to appointed counsel. (Groshart v. United States (9th Cir. 1968), 392 F.2d 172, 178.) If the defendant is not clear on the extent of his right to counsel, then the Miranda warnings given must be considered insufficient.

With respect to defendant’s right to counsel, Officer Mc-Keever’s testimony at the suppression hearing, as well as at trial, was as follows: “I told him [defendant] that he had a right to an Attorney and also told him if he could not afford an Attorney, one could be appointed for him free of charge ***.” The State argues that because this explanation was not time-specific, a “reasonable person” could have concluded that his right to counsel began immediately. We believe the State’s argument assumes too much knowledge on the part of defendant.

The United States Supreme Court in Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, stated:

“As with the warnings of the right to remain silent and that anything stated can be used in evidence against him, this warning [the right to consult with a lawyer and to have the lawyer with him during interrogation] is an absolute prerequisite to interrogation. No amount of circumstantial evidence that the person may have been aware of this right will suffice to stand in its stead. Only through such a warning is there ascertainable assurance that the accused was aware of this right.” (Miranda, 384 U.S. at 471-72,16 L. Ed. 2d at 722, 86 S. Ct. at 1626.)

Thus, with respect to defendant’s oral statement, it is not clear that he was aware of his right to have an attorney present during questioning. “[T]he Fifth Amendment privilege comprehends not merely a right to consult with counsel prior to questioning, but also to have counsel present during any questioning if the defendant so desires.” (Miranda v. Arizona (1966), 384 U.S. 436, 470, 16 L. Ed. 2d 694, 721, 86 S. Ct. 1602, 1626.) Therefore, Officer McKeever’s recitation of Miranda was insufficient.

However, we find that defendant was fully apprised of his Miranda rights by Detective McWeeny and again by Assistant State’s Attorney Bertucci prior to investigation. In determining whether a statement should be suppressed, the question is whether the statement was the result of intentional coercion. (Oregon v. Elstad (1985), 470 U.S. 298, 312, 84 L. Ed. 2d 222, 234, 105 S. Ct. 1285, 1295.) The second statement was given to Bertucci only after he had fully advised defendant of his Miranda rights and defendant had said that he understood them. Further, defendant was given the opportunity to read and make corrections regarding his statement. Bertucci testified that defendant’s only change was a correction of the name of a street. Bertucci stated that he then asked defendant how he had been treated by the police. Defendant responded that he had “been treated okay.” The trial court found that defendant’s statements were voluntary. The trial court’s finding was not contrary to the weight of the evidence, and it will not be disturbed on review.

Defendant correctly cites United States v. Bland (9th Cir. 1990), 908 F.2d 471, for the proposition that he is entitled to de novo review of a Miranda warning. However, that case did qualify the de novo standard of review. “The adequacy of a Miranda warning is a legal question reviewable de novo, [citation], although ‘the factual findings underlying the adequacy challenge, such as what a defendant was told, are subject to clearly erroneous review.’ [Citation.]” (Bland, 908 F.2d at 472.) The clearly erroneous standard allows a reviewing court to upset a finding of fact only if the fact finder’s determination is “(1) completely devoid of minimum evidentiary support displaying some hue of credibility, or (2) bears no rational relationship to the supportive evidentiary data.” Krasnov v. Dinan (3d Cir. 1972), 465 F.2d 1298,1302.

The witnesses appeared before the trial court and we believe the question of credibility is better left to its determination. Government v. Gereau (3d Cir. 1974), 502 F.2d 914, 921, cert. denied (1976), 424 U.S. 917, 47 L. Ed. 2d 323, 96 S. Ct. 1119.

Next, defendant contends the trial court erred in not supplying the jury with separate guilty verdict forms for each count charged. “Unless the affirmative defense of insanity has been presented during the trial, the jury shall return a general verdict as to each offense charged.” (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 40).) In this case, the evidence shows beyond a reasonable doubt that the victim was threatened with a gun and forced to engage in oral and vaginal copulation. The offense committed was an aggravated criminal sexual assault. This offense occurs when the accused displays, threatens to use, or uses a dangerous weapon or any object fashioned or utilized in such a manner as to lead the victim under the circumstances reasonably to believe it to be a dangerous weapon. Ill. Rev. Stat. 1987, ch. 38, par. 12 — 14(a)(1).

Defendant argues that the record is unclear as to which form of sexual penetration the jurors found to be true. This argument would merit more consideration but for complainant’s testimony corroborated by defendant’s subsequent signed confession. Complainant testified that defendant told her to get on her knees. When she did, defendant forced her to engage in oral copulation. He- then forced her to lie down, pulled down her pants, and forced her to have vaginal intercourse. Defendant’s written statement described the events as follows:

“[Defendant] then told [complainant] *** to give him a blow job. He told her to get on her knees and then he put his penis in her mouth for five or ten minutes ***.
*** He then told her to lay down on her back.
When she did as he said, he put his penis in her vagina. He then got up and let her up and walked back to the street.”

Both pieces of evidence prove that an aggravated criminal sexual assault took place which included both vaginal and oral copulation.

In People v. Jones (1975), 60 Ill. 2d 300, the court stated:

“ ‘[W]here an indictment contains several counts arising out of a single transaction, and a general verdict is returned, the effect is that the defendant is guilty as charged in each count, and if the punishment imposed is one which is authorized to be inflicted for the offense charged in any one or more of the counts, the verdict must be sustained.’ ” Jones, 60 Ill. 2d at 309, quoting People v. Lymore (1962), 25 Ill. 2d 305, 308.

We therefore contend that the trial court did not err in not supplying the jury with separate guilty verdict forms for each count charged. The defendant was properly found guilty beyond a reasonable doubt.

Defendant argues that there was insufficient evidence to prove him guilty beyond a reasonable doubt as to the charge of attempted aggravated criminal sexual assault. The current standard of review with regard to sex offense crimes is as follows: “ ‘[W]hether, 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.’ ” (Emphasis in original.) People v. Collins (1985), 106 Ill. 2d 237, 261, quoting Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.

Complainant gave a clear description of defendant as the person who raped her. She also told the police that defendant was armed. When he was apprehended later that morning, the gun was found in the bushes near the scene of the arrest. In her testimony, complainant says that defendant pointed a gun at her stomach and took her in back of a store. She then describes the attempt at anal intercourse. In the written statement, taken by Bertucci, defendant’s account also described the attempted anal intercourse. Further, we cannot ignore statutory law. A person commits an attempt when, with the intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense. Ill. Rev. Stat. 1987, ch. 38, par. 8 — 4(a).

Defendant contends that complainant’s testimony is inadequate with respect to his attempt at anal intercourse. This contention does not appreciate the current standard of review. In People v. James (1990) , 200 Ill. App. 3d 380, 394, the court specifically stated: “We will no longer require that in a case in which a sex offense is charged, the State must demonstrate either the victim’s testimony is clear and convincing or substantially corroborated to prove guilt beyond a reasonable doubt.” The defendant is correct in that in order to support a conviction, the State must establish proof of the corpus delicti outside of his confession. (People v. Lambert (1984), 104 Ill. 2d 375, 378.) However, under the current standard set forth in James, the State established proof of the corpus delicti from the testimony of the victim.

We therefore hold that the trial court did not err in finding defendant guilty beyond a reasonable doubt. This holding is based on defendant’s signed confession, which was corroborated by the testimony of the complainant.

Finally, defendant argues that his sentence was excessive in that the trial court abused its discretion by failing to consider mitigating circumstances and his potential for rehabilitation. Appellate court review of sentencing is deferential to the trial court. “The determination of the appropriate sentence to impose in a given case is a matter within the sound discretion of the trial judge and his decision will not be overturned absent an abuse of that discretion.” (People v. Wilson (1991), 143 Ill. 2d 236, 250.) According to the record, the trial court “considered the presentence investigation report, the history and character of the defendant, [and] the matters that have been presented in mitigation which [were] extensive.” Further, defendant’s 17-year sentence was within the statutory limitations. (Ill. Rev. Stat. 1987, ch. 38, pars. 12 — 14, 8 — 4, 1005 — 8—1(a)(3), (a)(4).) The concern with rehabilitation is valid but it is not the most significant factor in determining defendant’s sentence. “Although rehabilitation is a factor which must be considered, it is not the only factor and does not serve to outweigh other considerations which are persuasive of a severe sentence.” People v. Rogers (1986), 141 Ill. App. 3d 374, 382.

For the foregoing reasons, we affirm the ruling of the circuit court.

Affirmed.

JIGANTI, P.J., and McMORROW, J., concur.


author: JUSTICE RIZZI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. DALE ZAJAC, Defendant-Appellee.
    First District (3rd Division)
    No. 1—88—0886
    Opinion filed December 27, 1991.

      John M. O’Malley, State’s Attorney, of Chicago (Inge Fryklund, Carol L. Gaines, and Janet C. Mahoney, Assistant State’s Attorneys, of counsel), for the People.
    Craig F. Miller, of Oak Lawn, for appellee.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff, People of the State of Illinois, filed a misdemeanor complaint charging defendant Dale Zajac with driving or being in actual physical control of a vehicle while his blood or breath alcohol concentration was .10 or more in violation of section 11—501(a)(1) of the Vehicle Code (Ill. Rev. Stat. 1987, ch. 95½, par. 11—501(a)(1)). The complaint was stamped with the language “[Defendant] did drive a motor vehicle while under the influence of alcohol.” After the jury had been sworn but before any witnesses testified, over defendant’s objection, the trial court allowed the State’s motion to amend the section number under which defendant had been charged from section 11—501(a)(1) to section 11—501(a)(2) of the Vehicle Code. Section 11—501(a)(1) states that a person shall not drive or be in physical control of any vehicle while: “The alcohol concentration in such person’s blood or breath is 0.10 or more based on the definition of blood and breath units in Section 11—501.2.” (Ill. Rev. Stat. 1987, ch. 95½, par. 11—501(a)(1).) Section 11—501(a)(2) of the Vehicle Code states that a person shall not drive or be in physical control of any vehicle while: “Under the influence of alcohol.” Ill. Rev. Stat. 1987, ch. 95½, par. 11—501(a)(2).

Defendant was found guilty in a jury trial of driving a motor vehicle while under the influence of alcohol in violation of section 11—501(a)(2). Following the guilty verdict, defendant made a motion in arrest of judgment pursuant to section 116—2 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 116—2). The trial court granted defendant’s motion in arrest of judgment. The State appealed. We affirm.

On appeal, the State argues that the trial court erred when it granted defendant’s motion in arrest of judgment because the amended defect was a formal rather than a substantive defect that could be amended at anytime pursuant to section 111—5 of the Code of Criminal Procedure (Ill. Rev. Stat. 1987, ch. 38, par. 111—5). We disagree.

Section 111—5 of the Code of Criminal Procedure allows the State to amend a complaint at anytime to correct formal defects such as miswriting, misspelling or grammatical errors. (Ill. Rev. Stat. 1987, ch. 38, par. 111—5.) When the amendment, however, changes the nature of the offense with which the defendant is charged, the defect is substantive rather than formal and the 'court must grant a defendant’s motion in arrest of judgment. People v. Heard (1970), 47 Ill. 2d 501, 505, 266 N.E.2d 340, 343.

We conclude that the substitution of subsection (a)(2) in place of subsection (a)(1) in this case amounts to a substantive rather than technical amendment because the amendment changed the nature of the evidence necessary to obtain a conviction. Sections 11—501(a)(1) and 11—501(a)(2) are clearly distinct statutory offenses which require the State to prove different elements in order to obtain a conviction. (See People v. Ziltz (1983), 98 Ill. 2d 38, 43, 455 N.E.2d 70, 72.) In addition, the defendant may have different defenses for the distinct offenses. In the present case, after the complaint was amended and trial proceeded immediately thereafter, it appears that defendant was not prepared to address the testimony of witnesses presented by the State on issues raised by the amendment.

We therefore hold that defendant was clearly prejudiced by the amendment to the complaint, and that the trial court’s order granting defendant’s motion in arrest of judgment was proper. Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

CERDA, P.J., and GREIMAN, J., concur.