text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES A. WHITAMORE, Defendant-Appellant.
    Fourth District
    No. 4—92—0387
    Opinion filed February 25,1993.

      Michael W. Atkins, of Springfield, for appellant.
    Brett Irving, State’s Attorney, of Pittsfield (Norbert J. Goetten, Robert J. Biderman, and Elliott Turpin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE STEIGMANN

delivered the opinion of the court:

In June 1991, the State charged defendant, James Whitamore, with one count of keeping a place of gambling and 14 counts of gambling, in violation of sections 28 — 3 and 28 — 1(a)(3) of the Criminal Code of 1961 (Criminal Code) (Ill. Rev. Stat. 1991, ch. 38, pars. 28 — 3, 28 — 1(a)(3)). At defendant’s jury trial in February 1992, the trial court directed a verdict of acquittal on six of the gambling counts, and the jury found defendant guilty of all remaining counts. In April 1992, the trial court (1) sentenced defendant to pay a total fine of $900 (a $100 fine on each count), and (2) ordered certain property seized from Whitamore’s Supper Club (hereafter Whitamore’s) subject to forfeiture. Defendant appeals his convictions and the forfeiture order, arguing that (1) the charging instrument insufficiently set forth the nature or elements of the offenses charged, (2) he was denied effective assistanee of counsel, and (3) the trial court improperly ordered forfeiture of defendant’s property.

We affirm.

I. Background

On April 19, 1991, around noon, the Pike County sheriff’s department executed a search warrant on Whitamore’s, which is owned and operated by defendant. During the search, the officers seized the following:

(1) eight coin-operated, electronic video casino-type machines (blackjack, poker, and keno) located in an area of Whitamore’s accessible to the public;

(2) six similar casino machines located in a storage room not accessible to the public; a coin-counting machine located in the storage room;

(3) several boxes of unused, empty quarter (roll) wrappers located nearby the coin-counting machine;

(4) several garbage cans containing many empty, used quarter wrappers located in a public area; and

(5) over $2,500 in United States currency and quarters ($1,258 in quarters), including $306.50 in quarters found in the eight casino machines located in a public area, a bucket of quarters found near the coin-counting machine, rolls of quarters found near the coin-counting machine, rolls of quarters found by a cash register in the public area, rolls of quarters found in a filing cabinet in the office, and quarters found in two cash registers in a public area.

Thereafter, the State charged defendant with one count of keeping a place of gambling and 14 counts of gambling — one count for each casino machine seized from Whitamore’s.

At defendant’s trial in February 1992, two undercover officers testified that in April 1991, they entered Whitamore’s and obtained $60 worth of quarters from a barmaid, in addition to $20 in quarters they brought in themselves. They observed that at least 12 electronic casino machines were in the bar area of Whitamore’s. They both played the casino machines by inserting quarters. For each quarter entered into a machine, they would receive one credit. When they “won” a game on the machine, they would earn credits, with the number of credits won based upon the number of credits they entered (“bet”) before playing that game. One credit was the minimum amount that could be entered before playing a game; no maximum amount was determined. The officers played approximately five of the machines. Eventually, they each picked a particular machine to play and played their machines until each showed 80 credits. Separately, they each then went to the barmaid, told her that they had 80 credits left on their individual machines, and each received a $20 bill from her. They then left Whitamore’s.

An officer involved in the execution of the search warrant on Whitamore’s testified regarding the property seized from Whitamore’s and the location of these items, as described above. The State then called two employees of Whitamore’s, Barbara Treaster and Patricia Hamm, who were working there when the search warrant was executed. They both refused to answer questions and pleaded the protections of the fifth amendment. (U.S. Const., amend. V.) Subsequently, after the State granted them immunity, they answered questions, but they both were hostile witnesses. Treaster testified that she had emptied quarters from the machines on a daily basis. She stated that she would “refund” 80 credits when a player requested a refund so the player could move to another machine. However, she would not give a refund for less than 80 credits, and she could not remember if she ever refunded more than 80 credits. She would usually give rolls of quarters to the player asking for a refund, but sometimes refunds would be paid with currency. Hamm’s testimony essentially corroborated Treaster’s testimony.

Pike County Sheriff Michael Lord testified that he interviewed Treaster and Hamm during the execution of the search warrant at Whitamore’s. Treaster told him that during her three to four years of employment, she had made payoffs on the casino machines. She told him that defendant had set the policy of requiring at least 80 credits before making a payoff. Hamm told Lord that she had made a $200 payoff. She also said that defendant had recently directed her to remove several casino machines to the storage room because he had received a tip that the police might raid Whitamore’s.

Lord also testified that he spoke with defendant a few days after seizing the property from Whitamore’s when defendant came to Lord’s office to talk with him. Defendant admitted that he and his staff made payoffs to customers, but he explained that after a customer obtained a minimum number of credits, a customer could receive a payoff in order to play a different machine. Defendant told him that the minimum payoff levels were 40 credits on the poker machines and 80 credits on the other machines. Defendant also told Lord that he had made a payoff of $80 to $100.

Defendant’s trial counsel offered no evidence in defense, but instead presented a motion for a directed verdict in defendant’s favor on all charges. The trial court found sufficient evidence to support the count alleging that defendant kept a place of gambling and the eight gambling counts based upon the eight casino machines seized in the public area of Whitamore’s. However, the court did grant defendant’s motion regarding the six gambling counts based upon the six casino machines found in the areas of Whitamore’s not accessible to the public. As stated earlier, the jury found defendant guilty on the remaining nine counts.

At the sentencing hearing, the court sentenced defendant to pay a $100 fine for each of his nine convictions. At the forfeiture hearing that immediately followed, the court found that the 14 casino machines and all the quarters ($1,258) seized from Whitamore’s subject to forfeiture because they were all integrally related to gambling.

II. Analysis

A. Sufficiency of the Charges

On appeal, the defendant argues for the first time that counts II through IX of the information charging him with gambling were insufficient because they did not describe the nature or the elements of the offense charged. He contends that because the casino machines were not inherently illegal, the State needed to plead additional facts regarding their alleged illegal use as gambling devices. We disagree.

Section 28 — 1(a) of the Criminal Code describes the offense of gambling, in pertinent part, as follows:

“A person commits gambling when he:
* * *
(3) Operates, keeps, owns, uses, purchases, exhibits *** any gambling device.” (Ill. Rev. Stat. 1991, ch. 38, par. 28 — 1(a)(3).)

A gambling device is described in section 28 — 2(a) of the Criminal Code as follows:

“A ‘gambling device’ is any *** slot machine or other machines or device for the reception of money or other thing of value on chance or skill or upon the action of which money or other thing of value is staked, hazarded, bet, won or lost ***. A ‘gambling device’ does not include:
(1) A coin-in-the-slot operated mechanical device played for amusement which rewards the player with the right to replay such mechanical device ***.” Ill. Rev. Stat. 1991, ch. 38, par. 28 — 2(a)(1).

The information filed in June 1991, charged defendant as follows:

“That on or about the 19th day of April 1991, in Pike County, Illinois, [defendant] committed the offense of Gambling
COUNT 2
In that the said defendant knowingly kept a gambling device, a ‘Super Black Jack machine’ bearing serial #11176.
* * *
[This] count in violation of Illinois Revised Statutes Chapter 38, Section 28-l(aX3), CLASS A MISDEMEANOR^]”

The remaining counts III through XV read exactly the same except each listed a different, specific casino machine.

When a defendant does not challenge the sufficiency of a charge until appeal, the standard of review is whether the information “ ‘apprised the accused of the precise offense charged with sufficient specificity to prepare his defense and allow pleading a resulting conviction as a bar to future prosecution arising out of the same conduct.’ ” (People v. Hughes (1992), 229 Ill. App. 3d 469, 472, 592 N.E.2d 668, 669, quoting People v. Pujoue (1975), 61 Ill. 2d 335, 339, 335 N.E.2d 437, 440; see also People v. Heffron (1992), 239 Ill. App. 3d 932, 936.) Under this standard, the defendant must show that the defect in the charging instrument actually prejudiced him in preparing his defense. People v. Thingvold (1991), 145 Ill. 2d 441, 448, 584 N.E.2d 89, 91.

In the present case, the charging information set forth defendant’s name, the name of the offense, the approximate date of the offense, the county in which the offense occurred, that defendant “knowingly kept” gambling devices, and listed the names of the machines alleged to be gambling devices. Each casino machine was specifically listed in a separate count. Thus, defendant could — and did— present a defense regarding each count charging gambling by use of each separate machine. .In fact, in defendant’s motion for directed verdict, defendant’s counsel distinguished the six machines located in the storage room from the other eight machines, and the trial court as a result granted his motion for a directed verdict regarding the six counts related to those machines.

The casino machines were listed with enough specificity to bar future prosecutions of gambling based thereon. Thus, contrary to defendant’s argument that merely having an arcade game in the future could subject him to future prosecutions arising out of the same conduct, only other machines not listed in the information could be used for future prosecutions of gambling during the time period indicated in the information. Therefore, based upon our review of the information charging defendant with the eight counts of gambling, we conclude that defendant has not come close to demonstrating that any alleged defects in the charge prejudiced him in any way in preparing his defense.

B. Ineffective Assistance of Counsel

Defendant next argues that he was denied effective assistance of counsel because his attorney failed (1) to attack the information that charged him with gambling and keeping a place of gambling, (2) to present a meaningful theory of defense, including not presenting any evidence, and (3) to effectively cross-examine the State’s witnesses. Defendant argues that his trial counsel entirely failed to subject the State’s case to a “meaningful adversarial testing” and effectively deprived him of presenting a defense, denying him his sixth amendment right to assistance of counsel, as explained in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674,104 S. Ct. 2052.

To establish ineffective assistance of counsel under Strickland, defendant must prove that (1) his counsel’s performance was so seriously deficient that it fell below an objective standard of reasonableness, and (2) this deficient performance so prejudiced the defense that defendant was denied a fair trial with a reliable result. (See People v. Johnson (1993), 154 Ill. 2d 356, 369; People v. Odie (1992), 151 Ill. 2d 168, 172, 601 N.E.2d 732, 734.) We reject defendant’s claim and find that the conduct of defendant’s trial counsel comes nowhere near meeting either prong of the Strickland test.

A reviewing court will not review trial counsel’s conduct that involves an exercise of judgment, discretion, strategy, or trial tactics. (People v. Jones (1992), 234 Ill. App. 3d 1082, 1098, 601 N.E.2d 1080, 1090; People v. Williams (1992), 235 Ill. App. 3d 638, 651, 601 N.E.2d 1070, 1079.) Furthermore, a strong presumption exists that trial counsel’s performance falls within the wide range of reasonable professional assistance. Accordingly, a reviewing court must give substantial deference to counsel’s conduct. People v. Breton (1992), 237 Ill. App. 3d 355, 366, 603 N.E.2d 1290, 1298.

Defense counsel’s failure to attack the sufficiency of the charge against defendant could not possibly have affected the outcome of this case. We have already held that defendant suffered no prejudice as a result of the allegedly deficient charges. Furthermore, had defendant filed a successful pretrial motion challenging the charges, the trial court would merely have ordered the State to provide some additional information. However, the absence of that additional information did not affect defendant’s right to a fair trial.

Also, a trial counsel’s decision regarding the extent of cross-examination, whether to present witnesses, and what defense theory to assert all constitute matters of trial strategy. (People v. Ramey (1992), 152 Ill. 2d 41, 54, 604 N.E.2d 275, 281.) Here, defense counsel vigorously argued defendant’s case, provided a rational theory for his defense — that the use of the inherently legal casino machines was lawful and did not constitute gambling — and vigorously cross-examined the State’s witnesses. In addition, while a defendant ultimately decides himself whether to testify on his behalf (Ramey, 152 Ill. 2d at 54, 604 N.E.2d at 281), here defendant does not contend that his counsel refused to allow him to testify or even that he desired to do so; instead, he now argues that his testimony was critical to the presentation of his defense. Because defendant’s argument merely attacks his trial counsel’s strategy and theory of defense, it fails to demonstrate ineffective assistance of counsel.

Defendant deserves competent, not perfect, representation (Odle, 151 Ill. 2d at 173, 601 N.E.2d at 735), and counsel’s performance must be evaluated from counsel’s perspective at the time of counsel’s representation (People v. Blommaert (1992), 237 Ill. App. 3d 811, 814, 604 N.E.2d 1054, 1056). Defendant’s hindsighted review of his trial counsel’s performance and strategies merely speculates that some other trial counsel might have done things differently and better. Such speculation cannot support a finding of ineffective assistance of counsel under Strickland.

Furthermore, defendant has not demonstrated how his trial counsel’s performance denied him a fair trial with a reliable result. The evidence strongly supported the jury’s findings. Even if defendant had offered testimony from patrons who used the casino machines lawfully or had more extensively cross-examined the State’s witnesses, that action would not have detracted from the State’s evidence of the unlawful use of these machines at other times. Also, the possibility that his trial counsel could have argued another theory of his defense does not detract from the fairness or reliability of the trial he received. Therefore, we find that defendant’s argument also fails under the second prong of Strickland.

C. Forfeiture of the Seized Property

Defendant also argues that the trial court erred in ordering forfeiture. Section 28 — 5 of the Criminal Code, which governs seizure and forfeiture of gambling devices and gambling funds, states, in pertinent part, the following:

“(a) Every device *** used unlawfully for gambling shall be considered a ‘gambling device’, and shall be subject to seizure ***. As used in this Section, a ‘gambling device’ includes any slot machine, and includes any machine or device constructed for the reception of money or other thing of value and so constructed as to return, or to cause someone to return, on chance to the player thereof money, property or a right to receive money or property. ***
(b) Every gambling device shall be seized and forfeited to the county wherein such seizure occurs. Any money or other thing of value integrally related to acts of gambling shall be seized and forfeited ***.
(c) If, within 60 days after any seizure pursuant to subparagraph (b) of this [s]ection, a person having any property interest in the seized property is charged with an offense, the court which renders judgment upon such charge shall, within 30 days after such judgment, conduct a forfeiture hearing ***.” Ill. Rev. Stat. 1991, ch. 38, pars. 28 — 5(a), (b), (c).

Defendant first argues that his forfeiture hearing was not held within 30 days after judgment against him on the gambling charges, as required by section 28 — 5(c) of the Criminal Code. Defendant contends that as a result, the trial court could not order forfeiture. Defendant asserts that the forfeiture hearing, held immediately following his sentencing hearing on April 15, 1992, was held outside the 30-day period of section 28 — 5(c) of the Criminal Code because it was held over 30 days after the jury returned its guilty verdicts on February 19, 1992, and over 30 days after the trial court entered judgment on the jury’s findings on March 9,1992. We disagree.

After receiving the jury’s verdict on February 19, 1991, the trial court set April 3, 1992, for sentencing and hearing any post-trial motions, including forfeiture petitions the State might file regarding the property seized from Whitamore’s. On March 9, the court filed a purported order of judgment, finding defendant guilty on the nine counts and acquitting him on the other six counts. The State filed a forfeiture petition on March 20, but the hearing thereon, as well as the sentencing hearing, was continued at defendant’s request until April 15.

Section 102 — 14 of the Code of Criminal Procedure of 1963 (Procedural Code) defines “judgment” as follows:

“ ‘Judgment’ means an adjudication by the court that the defendant is guilty or not guilty and if the adjudication is that the defendant is guilty it includes the sentence pronounced by the court.” (Emphasis added.) (Ill. Rev. Stat. 1991, ch. 38, par. 102-14.)

Thus, a trial court does not enter a “judgment” until it has imposed a defendant’s sentence. (People v. Fitzgerald (1988), 171 Ill. App. 3d 218, 225, 524 N.E.2d 1190, 1194; People v. Lashmett (1984), 126 Ill. App. 3d 340, 345-46, 467 N.E.2d 356, 361.) The forfeiture hearing held immediately following the sentencing hearing thus met the 30-day requirement of section 28 — 5(c) of the Criminal Code. Whatever the trial court may have intended to accomplish by purporting on March 9, 1992, to enter a judgment against defendant on the jury’s guilty verdicts prior to the sentencing hearing does not matter here because the “judgment” of which section 28 — 5(c) of the Criminal Code speaks is the “judgment” that section 102 — 14 of the Procedural Code defines.

Defendant next argues that the six casino machines referred to in the six counts directed out by the trial court and the quarters not found in casino machines ($951.50) were not subject to forfeiture. Regarding the six casino machines, he contends that because the police found them in a storage room not accessible to the public, they cannot qualify as gambling devices under section 28 — 5(a) of the Criminal Code. Regarding the quarters, he contends that only the $306.50 in quarters found in the eight casino machines located in public areas was subject to forfeiture because the remainder of quarters was commingled with other proceeds. Defendant asserts that the commingled quarters cannot be declared as an integral part of gambling as required under section 28 — 5(b) of the Criminal Code. We disagree with both contentions.

Forfeiture proceedings are civil in nature, requiring the State to prove by only a preponderance of the evidence that the item in question should be forfeited. (People v. Ziomek (1989), 179 Ill. App. 3d 303, 306, 534 N.E.2d 538, 539; Ill. Rev. Stat. 1991, ch. 38, par. 28— 5(c).) Because a trial court, as trier of fact, determines whether the State has met its burden of proof based upon the court’s assessment of the believability of the evidence, a reviewing court will reverse the trial court’s determination only if it is against the manifest weight of the evidence. People v. LeShoure (1986), 143 Ill. App. 3d 839, 844, 493 N.E.2d 687, 690; People ex rel. Broch v. Hogg (1991), 213 Ill. App. 3d 188, 195-96, 571 N.E.2d 888, 893.

Defendant argues that none of the 14 machines seized, including the six machines in the storage room, were gambling devices. However, while the casino machines may have not been inherently illegal, the jury’s verdict finding defendant guilty on eight gambling charges required a specific finding that the eight machines in public areas were gambling devices. (See Ill. Rev. Stat. 1991, ch. 38, pars. 28 — 1(a)(3), 28 — 2(a); Illinois Pattern Jury Instructions, Criminal, Nos. 20.01, 20.02, 20.05 (2d ed. 1981) (given at defendant’s trial).) Furthermore, that the trial court directed verdicts on the six counts regarding the six machines found in the storage room means nothing more than the court concluded that the State had failed to prove beyond a reasonable doubt that these machines were used for gambling. However, a lower burden of proof applies to forfeiture hearings, and here the State presented sufficient evidence to meet that lower burden.

At the forfeiture hearing, the trial court ruled that the six casino machines found in the storage room also met the definition of a gambling device under section 28 — 5(a) of the Criminal Code and thus were subject to forfeiture. The State presented evidence at trial that, if believed by the court, supports this determination. An employee at Whitamore’s told Lord that defendant had ordered the machines removed from public areas because he had received a tip that the police might raid Whitamore’s. The undercover officers testified that at least 12 machines were in public areas. They also explained how the wagering and payoff process worked involving an unspecified number of machines. No evidence was presented that the six machines in question did not work or were used in a manner different from the other eight machines found in public areas. Thus, we conclude that the trial court’s determination that these six machines also constituted gambling devices under section 28 — 5(a) of the Criminal Code was not against the manifest weight of the evidence.

The trial court also stated at the forfeiture hearing that “any items of money that would have a rational relation to [any of the casino] machines would be subject to forfeiture as being an integral part of a gambling transaction.” The court then found that all of the seized quarters, but no other monies, were also subject to forfeiture. We agree with the trial court’s use of the rational relationship standard when it reviewed whether the money seized at Whitamore’s was “integrally related to acts of gambling” under section 28 — 5(b) of the Criminal Code (Ill. Rev. Stat. 1991, ch. 38, par. 28 — 5(b)). (See People v. Massey (1991), 219 Ill. App. 3d 909, 916, 579 N.E.2d 1259, 1264 (trial court must find that an item which is not contraband per se — not inherently illegal — had a rational relationship to an unlawful purpose before that item is subject to forfeiture); Ziomek, 179 Ill. App. 3d at 307, 534 N.E.2d at 540.) The State presented evidence regarding the use of quarters in defendant’s gambling enterprise, including where defendant kept the quarters, how patrons used the quarters, and how employees gathered, counted, and rolled the quarters. We find the court’s determination that all of the quarters should be forfeited was not against the manifest weight of the evidence.

Defendant nonetheless argues that all the quarters, except for the $306.50 of quarters found in the eight casino machines in the public area, were commingled with Whitamore’s bar and Illinois State Lottery receipts, and thus cannot be forfeited because they are not separately identifiable as gambling proceeds. Although some money received for legitimate business purposes was intermingled with money, including quarters, used in the gambling business, we will not allow a defendant to shield himself from forfeiture by commingling his gambling proceeds with his legitimate business proceeds. The rational relationship standard still applies to the commingled funds. Based upon this record, the trial court’s determination that all the seized quarters were subject to forfeiture was not manifestly erroneous.

III. Conclusion

For the reasons stated, we affirm defendant’s convictions and the trial court’s forfeiture order.

Affirmed.

KNECHT and COOK, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McCULLOUGH

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KIM A. OVERLIN, Defendant-Appellant.
    Fourth District
    No. 4—92—0578
    Opinion filed February 11,1993.

      Geisler Law Offices, of Decatur (Gary F. Geisler, of counsel), for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Norbert J. Goetten, Robert J. Biderman, and Linda Susan McClain, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Following a jury trial conducted in the circuit court of Macon County, defendant Kim Overlin was found guilty of aggravated criminal sexual assault by placing his penis in the mouth of T.J.B., at a time when defendant was over 17 years of age and the victim was under 13 years of age. (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 14(b)(1).) Defendant was sentenced to a term of imprisonment of 12 years.

The issues raised in this appeal are (1) whether defendant was proved guilty beyond a reasonable doubt of aggravated criminal sexual assault, and (2) whether the trial court committed an abuse of discretion by allowing into evidence testimony relating to prior misconduct by defendant. We affirm.

Defendant, a person 17 years of age or older, was charged by information with the offense of aggravated criminal sexual assault by placing his penis in the mouth of T.J.B., aggravated criminal sexual assault by placing his mouth on the penis of T.J.B., and aggravated criminal sexual abuse by fondling the sex organ of J.C. for the purpose of defendant’s sexual arousal. (Ill. Rev. Stat. 1989, ch. 38, pars. 12 — 14(b)(1), 12 — 16(c)(l)(i).) The offenses were alleged to occur on or about June 1, 1990, through October 21, 1991. Defendant moved to sever the trial of the count involving J.C. from the counts involving T.J.B. For the date the motion was considered, the trial court’s docket entry stated in relevant part: “As to defendant’s motion to sever, People confess the same.”

In an answer to defendant’s motion for a bill of particulars, the State answered that the incident charged occurred at 1168 West King, Decatur, Illinois, in “late summer of 1990, a few weeks before school started.”

T.J.B. testified he was born October 22, 1978. He had known the defendant for about three years and on occasion spent the night with his son, Tony. T.J.B. remembered defendant living in a yellow house by the mall north of Decatur and then moving to a house on King Street. The first time defendant approached T.J.B. and made him feel uncomfortable was at the yellow house. When they went to bed, defendant put his hand on T.J.B.’s testicles. T.J.B. just moved away. Nothing else happened that night. The testimony was allowed over defendant’s objection that it was not relevant to show what happened at some other time and place. The next time defendant did something to make T.J.B. feel uncomfortable was at a campground near Lake Shelbyville. Defendant took a bunch of kids to go camping. After they went to sleep in the tent, defendant tried to rub his penis up to T.J.B.’s mouth. T.J.B. ran out of the tent. Defendant ran out after him saying, “It’s all right if nobody knows.” The final incident was at the King Street house, which is the basis for the present charges. This was about two years after the incident at Lake Shelbyville. T.J.B. had poison ivy and defendant came by T.J.B.’s house and told T.J.B. he bad something that would cure it, something better than Calamine lotion. So T.J.B. went to defendant’s house and took a bath. No one else was at the house. After he took a bath, T.J.B. lay down on a pallet defendant made for him on the floor. This was downstairs in a basement bedroom. After lying down with T.J.B., defendant then put TJ.B.’s penis into his mouth. Then he told T.J.B. to do it to him or he would tell everybody T.J.B. was gay. Defendant had his mouth on TJ.B.’s penis for about two minutes, and T.J.B. had his mouth on defendant’s penis for 10 to 15 minutes. Defendant’s penis was erect and he ejaculated. When T.J.B. ran into the bathroom and started gagging, defendant ran right in behind him saying “here is some toothpaste, and it will get the taste out of your mouth.” Defendant told T.J.B. it was urine. Defendant threatened T.J.B. that if he told anybody, defendant would tell them T.J.B. was a homosexual. T.J.B. did not tell anybody for about a year, because he was afraid defendant would tell people he was a homosexual and they would believe him. When he finally told his friends and his mother, T.J.B. was 12 years old.

On cross-examination, T.J.B. testified further that on the occasion defendant took T.J.B. to the King Street house, defendant drove them there in his blue Oldsmobile. When they arrived, they went straight to the bathroom and ran the water and put the lotion in. At first, defendant tried to come into the bathroom, telling T.J.B., “you go ahead and take off your clothes. I ain’t going to try anything.” T.J.B. refused to allow this and when defendant left, T.J.B. removed his clothes and took a bath. When he found out no one else was home, T.J.B. did not refuse to stay. After the bath, they went into a nearby bedroom where defendant placed a sheet and a cover down on the floor. There was a large bed in the room. T.J.B. thought he would be the only one sleeping on the floor, and he did not know what to think when defendant lay down beside him. Defendant had his underwear on. T.J.B. testified that, when defendant placed his mouth on T.J.B.’s penis, “I just laid there, freaked out, didn’t know what to think.” Defendant continued for a couple of minutes during which time T.J.B. did not say anything and did not ejaculate. Then defendant made T.J.B. do it to him. At first T.J.B. refused, but defendant threatened to tell everyone he was a homosexual. Afterward, T.J.B. spent the night there and went home the next day. He did not tell his mother, brother, friends or the police. At Halloween, T.J.B. went with defendant to the Jaycees’ haunted house, and in January 1991, T.J.B. went to Chicago with defendant for a Bulls game. T.J.B. testified he tried to hide his fear. T.J.B. denied that defendant told him that T.J.B. could not stay at his home because T.J.B. had touched Tony.

When J.C. testified, he was 12 years old. His birthday was October 6, 1979. He was also a friend of Tony Overlin and had known him for about two years. He knows defendant is Tony’s dad. J.C. spent the night with Tony Overlin about four times. The testimony of J.C. was admitted over defendant’s continuing objection based on the lack of similarity between the incidents and that the evidence was not demonstrative of modus operandi, but would create in the jurors’ minds an idea that defendant had a propensity to commit these kinds of crimes. The first time defendant did something to make J.C. feel uncomfortable was in the yellow house by the mall. Tony, his sister Tammi, and defendant were with J.C. J.C. had gone to spend the night. When they went to bed, J.C. went into Tony’s room to sleep on a blanket on the floor. At that time, defendant did not have a wife. When Tammi started crying, defendant took her into his room and then came and lay on the floor by J.C. When he lay down, defendant “pushed me closer to him; and scooted up, had his front against my backside.” (It is noted that on cross-examination, J.C. testified he slept through the incident.) J.C. then got up and went to the front room and stayed there for the night. There were about four other occasions when defendant made J.C. feel uncomfortable. He specifically remembered an incident at a white house near Decatur. Defendant was married then. That night everybody took a shower and J.C. was the last one. Defendant came in and told J.C. to wash his “private spot.” Defendant said he was going to give J.C. a bath. When defendant walked out, J.C. locked the door and got dressed. After he got dressed, they all went to bed. J.C. again slept on the floor in Tony’s room. There was a bunk bed in Tony’s room, but both beds were occupied by other children. This was a bedroom in the basement. Later, defendant returned to the room and slept next to J.C. Defendant kept getting closer and closer and put his hand around J.C.’s waist. Defendant put his hand on J.C.’s “private” and the front of defendant’s body touched the backside of J.C.’s body. J.C. did not remember what happened after that.

J.C. further testified that at the time of the incident at the white house, defendant’s wife was working. She was not there when they went to bed. J.C. did not go to the haunted house with defendant, but he did go to the Bulls game with defendant. The white house was the house on King Street.

Jeff Marlow, who was assigned to the Illinois State Police division of criminal investigation, testified concerning the reports by T.J.B. of sexual assault by defendant. At the time Marlow interviewed T.J.B., T.J.B. was 12 years old. T.J.B. reported incidents of fondling and receiving oral sex and being made to perform oral sex, all involving defendant. T.J.B. related an incident which occurred at Lake Shelby-ville and another occurring at the address on West King Street in Decatur involving a medicated bath for poison ivy. The testimony of Marlow about these reports was substantially the same as T.J.B.’s testimony. Marlow stated he initially understood the oral sex incident occurred at a location on Twenty-First Street in Decatur. At the time of the arrest, Marlow advised defendant of the nature of the offenses for which he was arrested, and without any further questioning from Marlow, defendant started crying and explained to Marlow that he was aware of his problem and was seeking help for it. At the time the officers went to make the arrest on December 20, 1991, the officers were aware defendant was present in his home, but defendant would not come out of his residence for two hours even though the officers were knocking on the front and back doors and yelling at him to come out. Finally, the officers pried the back door open to get into the house.

On cross-examination, Marlow again testified that T.J.B. indicated the residence at which the oral sex occurrence took place was located on Twenty-First Street in Decatur and it was Marlow’s impression that was where the incident occurred. No mention had been made of a residence on King Street. On redirect examination, Marlow was allowed to testify that through his investigation, he found out the incident occurred on West King Street. The Twenty-First Street address was where defendant lived with his wife, Sandra, and son and daughter and where she and the children still live.

Douglas Raver, a police officer for the City of Decatur, testified about J.C. identifying certain residences in which the incidents he related had occurred.

TJ.B.’s mother testified she first became aware of unwanted contact between defendant and T.J.B. in October 1991. She confirmed T.J.B. was a friend of defendant’s son. Defendant took the children to church, camping, to Six Flags, and to the Bulls game. Defendant also brought her food when she needed help. On cross-examination, she stated she thought defendant was safe for T.J.B. to be around. TJ.B.’s brother, J.B., testified about the places defendant took the children and who went along. J.B. did not go on the camping trip or sleep over at defendant’s house.

Darlene Thomas, a former wife of defendant, testified they were married on June 9, 1990. She lived at 1168 West King Street and defendant moved in there. She was not the mother of defendant’s children. They did come for visits. Thomas’ usual work hours were from 8 a.m. to 5 p.m. She could not recall any time during the summer of 1990 that she was not at home for the entire night. When Tony’s friends were there, as far as she knew, the defendant’s children were also there. She does work into the evening hours. She might have worked until 10 p.m. This only occurred if something unusual came up. She did not recall coming home one night and finding one of Tony’s friends had spent the night at the house, but she admitted she would probably not have remembered it if it had happened. On cross-examination, Thomas admitted there were times defendant was there when she was not. When Tony’s friends were over, she usually went to sleep before the boys went to bed. Defendant would be up with the boys. It is possible there were times she was gone all night.

Defendant’s 12-year-old son testified that when they went camping near Lake Shelbyville, he and his sister slept next to his father. T.J.B. was punching and grabbing Tony in the private area. Tony did not see defendant touch T.J.B. or see defendant take out his “privates” in the tent. According to Tony, T.J.B. never spent the night at the King Street residence. On cross-examination, Tony stated he was living with his mother, and he would visit his dad every other weekend. At Lake Shelbyville, when they went camping, his sister slept next to defendant because she was scared. The first time Tony told his dad about T.J.B. punching him was about a month ago, and he did not know if T.J.B. was doing it accidentally or meant to do it. On redirect, Tony stated defendant never set up a bed on the floor in his bedroom and slept on it. On re-cross-examination, Tony admitted defendant did set up such beds on the floor in Tony’s room for Tony’s friends who spent the night.

Defendant’s daughter, Tammi, eight years old, testified that at Lake Shelbyville, she slept between her dad and her brother. T.J.B. slept on the other side of Tony. She remembered because they rolled a lot and she was scared. She never saw defendant touch T.J.B. She also did not remember a night when T.J.B. slept at the King Street residence. On cross-examination, she testified she would have been about six or seven at the time they went to Lake Shelbyville.

Defendant testified T.J.B. did not come and spend the night at the King Street house. Defendant did not want T.J.B. around his children. He denied T.J.B. came to the house when the children were not there. Defendant said he did not know about T.J.B. having poison ivy, nor did he know anything about a medicated bath. He went to Lake Shelbyville to spend the night with the children and some of their friends before July 30, 1989. The floor of the tent was eight feet by eight feet. Defendant slept on the side with Tammi next to him because she was scared from the ghost stories. He did not sleep next to T.J.B. and tried to stay away from him because he was dirty and had scabies. Nothing happened between T.J.B. and defendant that night. T.J.B. never spent the night at the house on King Street because on the camping trip defendant saw T.J.B. do something he was not supposed to do. T.J.B. was lying next to a child named Joey and had fondled him and had done something with his penis on Joey’s front. Defendant confronted T.J.B. about this in the morning. T.J.B never spent the night with defendant or his children again, although defendant still helped TJ.B.’s family and took him on other excursions. During the summer of 1990, there was no time when his wife, Darlene, was gone the entire evening. She might have been gone for some of the evening hours to go to church or something like that.

On cross-examination, defendant stated he told TJ.B.’s mother about T.J.B. doing something to Joey over two years ago. She said she would take care of it. He denied telling Marlow, “I know what my problem is, and I’m getting help.” Instead, defendant testified Marlow asked him “you got a big problem, don’t you?” and defendant responded, “You referring to this arrest?” and “Yeah, I’ve got a problem.” He denied saying anything about getting help. On redirect examination, defendant testified nothing happened between himself and T.J.B. or himself and J.C.

TJ.B.’s mother was called by the State to testify in rebuttal. She denied defendant ever told her anything about seeing her son touch anyone in an inappropriate manner.

The first issue to be considered is whether the trial court committed an abuse of discretion by allowing into evidence testimony relating to prior misconduct by defendant. Defendant complains that the trial court should not have allowed T.J.B. to testify about prior incidents and particularly the one at Lake Shelbyville. Defendant also argues it was reversible error for the trial court to allow J.C. to testify about incidents with defendant.

The question of T.J.B. testifying can be disposed of easily. In People v. Cregar (1988), 172 Ill. App. 3d 807, 821-22, 526 N.E.2d 1376, 1386, this court stated:

“[EJvidence of other sexual acts with a complainant in an indecent liberties case is admissible to show the relationship and familiarity of the parties and to corroborate the complaining witness’ testimony concerning the offense charged. (Esterline, 159 Ill. App. 3d 164, 512 N.E.2d 358; Bradley, 128 Ill. App. 3d 372, 470 N.E.2d 1121.) The evidence is admissible even though the fact that the parties had a continuing relationship or knew each other is not at issue. The evidence shows the intimacy of the relationship. (People v. Arbuckle (1979), 75 Ill. App. 3d 826, 393 N.E.2d 1296.) Evidence of the relationship between complainant and defendant was admissible.”

Therefore, T.J.B.’s testimony is admissible.

The questions surrounding J.C.’s testimony are a little more difficult. The theory under which the evidence was offered at trial was to show a -modus operandi.

“The admissibility of evidence at trial is a matter within the sound discretion of the trial court, and that court’s decision may not be overturned on appeal absent a clear abuse of discretion. (People v. Franklin (1990), 135 Ill. 2d 78, 96; People v. Brown (1990), 199 Ill. App. 3d 860; People v. Kimbrough (1985), 138 Ill. App. 3d 481.) Such an abuse of discretion will be found only where the trial court’s decision is “arbitrary, fanciful or unreasonable” ’ or ‘ “where no reasonable man would take the view adopted by the trial court.” ’ (People v. M.D. (1984), 101 Ill. 2d 73, 90, quoting Peek v. United States (9th Cir. 1963), 321 E2d 934, 942.)” (People v. Illgen (1991), 145 Ill. 2d 353, 364, 583 N.E.2d 515, 519.)

As the briefs of the parties demonstrate, the principle relating to the admissibility of evidence of other crimes has been discussed in a number of cases.

“The law distrusts the inference that because a man has committed other crimes he is more likely to have committed the current crime. And so, as a matter of policy, where the testimony has no value beyond that inference, it is excluded. But where the evidence is independently relevant it is admissible as, for example, where it shows motive or intent, identity, absence of mistake or accident, or the existence of a common scheme or design.” (People v. Lehman (1955), 5 Ill. 2d 337, 342-43, 125 N.E.2d 506, 509.)

Evidence of other crimes may be admitted to show modus operandi. People v. McKibbins (1983), 96 Ill. 2d 176, 182, 449 N.E.2d 821, 824.

In arguing whether the applicable degree of similarity between the charged offense and the other crimes which must be present in order for the evidence of the other crimes to be admissible, the State notes that the similarity to establish modus operandi is not as high in degree as in cases where the theory supporting admissibility is to show a common scheme. In People v. Kimbrough (1985), 138 Ill. App. 3d 481, 486-87, 485 N.E.2d 1292, 1297, cited by both parties, the relationship was discussed as follows:

“Modus operandi and common design, scheme or plan are distinct concepts, and therefore they are not interchangeable bases for the admissibility of evidence of other crimes. Different principles are applicable to each. People v. Barbour (1982), 106 Ill. App. 3d 993, 999, 436 N.E.2d 667, 672.
A common design, scheme or plan refers to a criminal scheme of which the crime charged is only a part. (People v. Barbour (1982), 106 Ill. App. 3d 993, 999-1000, 436 N.E.2d 667, 672.) If evidence of other crimes is offered to establish that the crime charged was part of a common design, scheme or plan of defendant, there must be a high degree of identity between the facts of the crime charged and those of the other crime. The two crimes must be so similar that evidence of the other crime tends to prove defendant guilty of the crime charged. The reason this similarity is required is that defendant’s participation in the crime charged may be inferred from his involvement in the other crime. People v. McKibbins (1983), 96 Ill. 2d 176, 185-86, 449 N.E.2d 821, 825.
Modus operandi means, literally, ‘method of working.’ It refers to a pattern of criminal behavior so distinct that separate crimes, or wrongful conduct are recognized as the work of the same person. (People v. Barbour (1982), 106 Ill. App. 3d 993, 1000, 436 N.E.2d 667, 672.) If evidence of other crimes is offered to prove modus operandi, there must be some clear connection between the other crime and the crime charged which creates a logical inference that if defendant committed one of the acts, he may have committed the other act. This inference of identity does not arise from the mere fact that the crime charged and the other crime share certain common features or marks of similarity, for it may be that these similarities are shared not only by the crime charged and defendant’s other crime, but also by numerous distinct crimes committed by persons other than the defendant. Rather, the inference is created when both crimes share peculiar and distinctive common features so as to earmark both crimes as the handiwork of the defendant. (People v. Matthews (1985), 137 Ill. App. 3d 870, 875-76.) There must be some distinctive features that are not common to most offenses of that type. (People v. Dickerson (1983), 119 Ill. App. 3d 568, 574, 456 N.E.2d 920, 925.) While there must be a strong and persuasive showing of similarity between the other crime and the crime charged to satisfactorily demonstrate modus operandi (People v. Barbour (1982), 106 Ill. App. 3d 993, 1000, 436 N.E.2d 667, 672), it is not necessary that the crimes be identical for the other crime to be admitted in evidence to prove modus operandi. People v. Anderson (1982), 108 Ill. App. 3d 563, 570-71, 439 N.E.2d 65, 70; People v. Lewis (1983), 115 Ill. App. 3d 389, 394, 450 N.E.2d 886, 894, rev’d on other grounds (1984), 103 Ill. 2d 111, 468 N.E.2d 1222.”

Generally, proof of modus operandi is used to establish the identity of the perpetrator. In the case at bar, the question of the identity of the perpetrator was not really an issue.

It has also been said that evidence of modus operandi may be used, not only to show who committed the crime, but whether a crime was committed at all (People v. Brown (1991), 214 Ill. App. 3d 836, 845, 574 N.E.2d 190, 195-96; People v. Middleton (1976), 38 Ill. App. 3d 984, 990, 350 N.E.2d 223, 228), although Middleton appears to have considered modus operandi and common scheme to be interchangeable concepts. Evidence of other crimes may not be introduced for the sole purpose of bolstering the credibility of a prosecution witness. (People v. Romero (1977), 66 Ill. 2d 325, 329-32, 362 N.E.2d 288, 289-91.) One commentator has suggested that the Middleton decision stands for the proposition that evidence of other crimes is admissible “to show plausibility of complainant’s allegations.” (M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §404.5, at 192 (5th ed. 1990).) However, if the evidence was admitted in Middleton simply to support complainant’s “plausibility,” in order to apply Middleton to this case, while still following the proscription of Romero, would require this court to walk such a fine line as to be tantamount to performing a high-wire act. The court in Middleton pointed out that the evidence tended to refute a correctly anticipated defense. Middleton, 38 Ill. App. 3d at 990, 350 N.E.2d at 228.

Middleton does make a valid point that where the defendant denies committing the crime charged or denies that it could have occurred in the particular manner alleged, evidence of modus operandi may be admitted to establish that a crime occurred. In the case at bar, the evidence is relevant to establish the methodology of how defendant operated in attempting to seduce victims. This evidence tends to establish that the crime charged did occur. The evidence is admissible even though it also incidentally bolsters the victim’s testimony, and the probative value of this evidence outweighs the prejudice to defendant.

The parties cite a number of cases in which the similarities between the crimes charged and the evidence of other crimes either was or was not sufficient for admissibility in those cases. However, the Illinois Supreme Court has recognized that there will always be some dissimilarity between independent crimes. (People v. Phillips (1989), 127 Ill. 2d 499, 521, 538 N.E.2d 500, 508.) The defendant’s contention here is that there is insufficient similarity between the crime charged and the evidence of the other crimes to warrant admission of the evidence.

In comparing the incidents testified to by J.C. and the crime charged, each involved defendant making a pallet for the child to lie on and lying down on the floor with the child. Both children were males, similar in age and friends of defendant’s son. Defendant befriended the children in the same ways, taking them to basketball games, camping trips, and having them spend the night with his children. Although only the crime charged involved oral sex, this is not a sufficient dissimilarity to render the evidence inadmissible. (See People v. Williams (1989), 185 Ill. App. 3d 840, 853-57, 541 N.E.2d 1175, 1184-87 (and the cases cited therein).) J.C. did testify to a touching of his “privates.” The instant crime involved T.J.B. taking a bath, and J.C. testified to an incident where defendant threatened to wash the child after defendant told him to make sure to clean his “private.” There are sufficient similarities to warrant the admission of J.C.’s testimony into evidence, and no abuse of discretion occurred.

The remaining issue to consider is whether defendant was proved guilty beyond a reasonable doubt of aggravated criminal sexual assault. In People v. Schott (1991), 145 Ill. 2d 188, 203, 582 N.E.2d 690, 697, the Illinois Supreme Court ruled that the standard of review for determining the sufficiency of the evidence in sex offense cases was the same as in other types of criminal cases and was articulated in People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 276-77. In Schott, the court stated as follows:

“We find that where the evidence is claimed to be insufficient on review, regardless of the nature of the evidence, the reasonable doubt test set forth in Collins should be applied. According to Collins, 106 Ill. 2d at 261, criminal convictions are not to be overturned on review unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. The test to be employed on review ‘ “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.” ’ (Emphasis in original.) Collins, 106 Ill. 2d at 261, quoting Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.” Schott, 145 Ill. 2d at 203, 582 N.E.2d at 697.

As charged in this case, the offense of aggravated criminal sexual assault occurs when a person 17 years of age or older commits an act of sexual penetration on a person who was under the age of 13 at the time the act was committed. (Ill. Rev. Stat. 1989, ch. 38, par. 12— 14(b)(1).) Sexual penetration is defined as follows:

“any contact, however slight, between the sex organ of one person and the sex organ, mouth or anus of another person, or any intrusion, however slight, of any part of the body of one person or of any animal or object into the sex organ or anus of another person, including but not limited to cunnilingus, fellatio or anal penetration. Evidence of emission of semen is not required to prove sexual penetration.” Ill. Rev. Stat. 1987, ch. 38, par. 12-12(f).

Defendant points to the contradictory evidence and minor inconsistencies in an attempt to convince this court to overturn the defendant’s conviction. However, TJ.B.’s testimony was solid, and he was not shaken on cross-examination at all. Defendant’s ex-wife testified she might have been out of the house. Defendant’s children were not always there. Defendant denied it ever occurred and that T.J.B. was ever at the house on King Street. Therefore, it comes down to a matter of credibility. The jurors believed T.J.B., and there is nothing inherently incredible about T.J.B.’s version. Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

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

Affirmed.

KNECHT and LUND, JJ., concur.


author: PRESIDING JUSTICE STEIGMANN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RONNIE L. TODD, Defendant-Appellant.
    Fourth District
    No. 4—91—0608
    Opinion filed February 11,1993.

      Daniel D. Yuhas and Gloria Ann Morris, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Norbert J. Goetten, Robert J. Biderman, and Leslie Hairston, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE STEIGMANN

delivered the opinion of the court:

In March 1991, a jury found defendant, Ronnie Todd, guilty of three counts of criminal sexual assault in violation of section 12— 13(a)(3) of the Criminal Code of 1961 (Criminal Code) (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 13(a)(3)). In May 1991, trial court sentenced defendant to three consecutive four-year prison terms. Defendant appeals, arguing that (1) the trial court improperly precluded him from presenting evidence regarding the victim’s alleged fear of pregnancy; (2) the trial court erred in instructing the jury; (3) the prosecutor’s improper closing argument denied him a fair trial; (4) the trial court erred by sentencing him to prison instead of probation; and (5) the trial court erred in sentencing him to consecutive prison terms.

We affirm.

I. Background

On September 27, 1990, B.T., a 16-year-old girl and the victim in this case, told her aunt that defendant, B.T.’s adoptive father and (previously) stepfather, was having sex with her. At her aunt’s request, B.T. also told her mother. B.T.’s mother then called the police, relaying B.T.’s allegations to them. In October 1990, the State charged defendant with three counts of criminal sexual assault of B.T., alleging that defendant committed acts of sexual penetration with B.T. — a “family member” under 18 years of age — by placing his penis in her vagina, by placing his penis in her mouth, and by placing his mouth on her vagina. Ill. Rev. Stat. 1989, ch. 38, par. 12 — 13(a)(3).

At defendant’s March 1991 trial, B.T. testified that during the late summer or early fall of 1989, defendant began touching her clothing on her breasts, bottom, and vaginal area. I. " >uld touch her while they were alone in their home or garage. He also would have her touch his clothing on the outside of his bottom and penis. She testified that this touching eventually led to touching underneath each other’s clothing in the same areas.

B.T. testified that later in this same time period, defendant began taking her out alone for driving lessons about two or three times a week. Defendant would drive their family Buick out of Champaign onto some nearby country roads at about dusk. He would then stop near or between cornfields as nightfall came. Initially on these trips, he would touch her on top of her clothes and then under her clothes. Defendant later started performing oral sex upon her and having her perform oral sex upon him. She stated that he also attempted to penetrate her vagina with his penis. However, defendant could not completely penetrate her until about one month after the first attempt. Upon the first complete penetration, she testified that she bled.

In December 1989, B.T. had surgery to remove a cyst from an ovary. She testified that this surgery interrupted the sexual activity, including sexual intercourse, for only about two weeks after the surgery even though she had been advised not to engage in sexual intercourse until six weeks after the operation. Otherwise, the pattern of the driving lessons and the concurrent sexual activity in the car continued until she obtained her driver’s license in January 1990. After receiving her license, the driving lessons stopped, but defendant then began having sex with her at their home.

B.T. testified that defendant would arrange these sexual encounters while her mother was at work, in the shower, or asleep, even though her younger brother would also be in the house. The family members residing at their home in Champaign at the time were defendant, B.T.’s mother, B.T., and B.T.’s younger brother. K.T., defendant’s son and B.T.’s stepbrother, resided with the family from May 1989 through February 1990, when he moved out because of friction in the family’s relationships. Defendant and B.T.’s mother shared a bedroom, and B.T.’s bedroom adjoined their bedroom through a common bathroom between the bedrooms. Defendant installed locks on these bedroom doors, and the sexual encounters typically occurred in defendant’s bedroom after defendant had locked both defendant’s and B.T.’s bedroom doors. Because defendant had a flexible work schedule, he could have sex with B.T. when she came home from school before B.T.’s mother returned from work and before defendant left for work around 4 p.m. B.T. added that defendant used a vibrator on her a few times during these sexual encounters. She further testified that defendant would sometimes also shave his pubic area because he said that it would be “smoother,” and that defendant’s goal was for her to climax.

In March 1990, defendant and B.T.’s mother bought a 1990 Ford Probe. B.T. testified that at first defendant told her that the car was a birthday present for her. However, when they were alone together, he told her, in reference to the car and their sexual activity, that his motto was “if you give a little, you get a little.” He later told her that it was for family use, but she still primarily used it.

In April 1990, defendant had a heart attack and was hospitalized, at which time he received an angiogram. The angiogram required the insertion of a tube into an artery in defendant’s leg in the groin area and then injecting a dye into his artery. B.T. testified that soon after defendant came home from the hospital and while they were alone together, defendant pulled down his pants and showed her the bruise in his leg that resulted from the angiogram. He then had sexual intercourse with her. She testified that while his ejaculate normally appeared white, it had an orange or yellow tint for a brief time after he returned home from the hospital. Defendant told her that the dye which was injected into his body during the angiogram caused this coloration. She also testified that the bruise on his leg got much bigger and darker before it eventually faded away.

Regarding the events of September 27, 1990, B.T. testified that she had to stay after school to make up a math test. She was later informed that she had to take two make-up tests. After taking both tests, she drove a friend home and then went home herself, arriving at about 4:30 p.m. Upon arriving home, defendant became very upset and angry with her because he thought she was lying. Defendant then took the keys to the Ford Probe away from B.T. Additionally, B.T. had asked the previous night if she could go to an upcoming homecoming dance. Defendant initially refused to let her go, but later declined to give a firm answer. B.T. testified that after these events she was “sick of taking it, so *** something inside me told me that I needed to tell [about the sexual activity with defendant].”

B.T. testified on cross-examination that defendant was the only person with whom she had had sexual intercourse. When asked how many times defendant had had sex with her, she responded that it was “too many times to count.” She also noted that defendant would always ask her when her menstrual cycle occurred, when it ended, and how long it lasted. When she would not have it for a while, defendant would ask her if she was pregnant, despite his having told her that he had a vasectomy and could not impregnate her. On cross-examination, she denied that she had told defendant or K.T. that she feared being pregnant because somebody had raped her. However, the trial court sustained the State’s objections to further defense counsel cross-examination of B.T. concerning (1) whether she had had any sexual encounters with K.T.; (2) whether she had told K.T. that her cousin had raped her; and (3) whether she told K.T. that she feared being pregnant after this alleged activity with her cousin.

Defendant denied any sexual activities with B.T. Defendant testified that he bought the Ford Probe for his wife (B.T.’s mother), intending that B.T. would then use the old Buick. However, because B.T.’s mother was afraid to drive the new Probe, only defendant and B.T. drove it, although B.T. primarily drove it. Defendant denied that he bought the car as a reward to B.T. for sexual favors.

Defendant also testified that B.T. had approached him and expressed fear that she might be pregnant. However, the trial court refused to allow defense counsel to further pursue this line of questioning. Defendant then sought to have his stepson K.T. testify in his defense, but the trial court refused his proffered testimony. The court ruled K.T.’s testimony collateral and violative of the rape shield statute (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 7).

The State also presented evidence that after the events on September 27, B.T.’s mother and her two children immediately moved out of the house they had shared with defendant and had no further contact with defendant. At the end of October 1990, defendant sent some photographs to B.T.’s mother which included several pictures of B.T. with an “X” written across her face. As stated above, the jury subsequently found defendant guilty on all three counts of criminal sexual assault.

II. Analysis

A. Preclusion of Defendant’s Evidence Regarding the Victim’s Alleged Fear of Pregnancy

Defendant first argues that he was denied his right of confrontation under the sixth amendment of the United States Constitution and article I, section 8, of the Illinois Constitution because the trial court precluded him from presenting all of the evidence he "wished regarding his fear that B.T. might have been pregnant. (U.S. Const., amend. VI; Ill. Const. 1970, art. I, §8.) Defendant claims that this denial turned his statement to B.T. that he was concerned that she might be pregnant into an implicit admission of guilt. According to defendant, the implicit admission was created when B.T. testified on cross-examination that she had sex only with defendant. We discern from defendant’s argument that, essentially, he contends that because he was prevented from eliciting or presenting evidence on whether B.T. had sex with persons other than him, the jury likely concluded that he was the only person to have sexual contact with B.T. Thus, it also likely concluded that because B.T. had no other sexual partners, defendant could have made the statements to B.T. of his concern of B.T.’s possible pregnancy only if he was having sex with B.T. — the “implicit admission.”

During trial, defendant attempted three times to explain that his concern over B.T.’s pregnancy arose out of her sexual activity with others: first, during cross-examination of B.T.; second, during his own testimony; and third, by offering K.T. as a witness who would testify that B.T. told him that she feared that her cousin had impregnated her when he raped her. Although the trial court allowed defense counsel to briefly cross-examine B.T. about these matters, it did not allow defendant to testify on this subject and did not allow K.T. to testify at all, holding such testimony would violate the rape shield statute (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 7).

Defendant’s claims arise in the following context. On direct examination, B.T. mentioned nothing about any fear of pregnancy. However, on cross-examination, defense counsel asked her, “Isn’t it correct that you told [K.T.] today that you feared you were pregnant as a result of [being raped by your cousin]?” The trial court sustained the State’s objection to this question. Defense counsel then asked, “Isn’t it correct that prior to that time you had told your father that you feared you were pregnant?” The trial court again sustained the State’s objection to this question.

On redirect examination, the prosecutor responded to defense counsel’s questioning by asking the following questions:

“Q. [B.T.], why were you discussing with your father whether or not you were pregnant?
A. Because he always asked when my period was[,] when it ended and the time span and everything. He had to know all the time. And then when he kept askin’ me and I hadn’t had it for awhile, then he brought up that I might be pregnant.
Q. That’s when the suggestion came that you explained the pregnancy if you were pregnant?
A. Yes.”

The prosecutor asked her nothing more about this matter. A few minutes later, defense counsel began his re-cross-examination as follows:

“Q. [B.T.], isn’t it correct that the conversation you had with [defendant] about pregnancy was when you reported to him that some individual *** had raped you and perhaps made you pregnant?
[State’s Attorney:] Objection.
THE COURT: Well, you may answer.
A. No.
Q. Didn’t you tell [K.T.] the same thing about your cousin today?
A. No.
[State’s Attorney:] Objection.
THE COURT: The answer may stand.”

Defense counsel then ended this inquiry and moved on to other matters. However, when defense counsel later attempted to follow up on this inquiry by presenting more evidence concerning B.T.’s alleged fear that someone other than defendant might have impregnated her, the trial court sustained the State’s objection.

Defendant argues that the court erred when it ruled that the rape shield statute barred evidence regarding B.T.’s prior sexual contact with others. He asserts that he should have been allowed a limited rebuttal to B.T.’s testimony that she feared her possible pregnancy. This limited rebuttal would consist of the following evidence: (1) cross-examination of B.T. on her assertion that she never had sex with anyone other than defendant and on defendant’s concern the B.T. might be pregnant; (2) defendant’s testimony about how B.T. had approached him with concerns that she feared pregnancy because she had been raped by a boy and thereafter her menstrual cycle was late; and (3) K.T.’s testimony about how B.T. had told him that she had sex with his cousin, subsequently her menstrual cycle was late, and she feared pregnancy. Defendant concedes that his counsel made a broad offer of proof concerning B.T.’s sexual history to the trial court and argued the admissibility of that evidence because of its claimed effect on B.T.’s credibility. However, on appeal he now wants us to consider the issue of this evidence as necessary to rebut an “implicit admission.”

Initially, we note that a defendant can preserve an issue for review only by both raising the issue at trial and in a written post-trial motion. (People v. Pecoraro (1991), 144 Ill. 2d 1, 17, 578 N.E.2d 942, 949; People v. Jackson (1992), 235 Ill. App. 3d 732, 741, 601 N.E.2d 1317, 1323.) Accordingly, the specific basis for admissibility of the proffered evidence that defendant seeks to raise on appeal must first be raised in the trial court. Defendant’s failure to do so waives the issue on appeal. People v. Grant (1992), 232 Ill. App. 3d 93, 105, 596 N.E.2d 813, 822.

Defendant here did not raise this “implicit admission” argument at trial, arguing instead that the evidence was admissible to impeach B.T.’s credibility. However, defendant claims that this court should review his “implicit admission” claim as plain error because the waiver rule is relaxed when a fundamental constitutional right is at stake, such as his right to confront witnesses. (See People v. Simms (1991), 143 Ill. 2d 154, 170, 572 N.E.2d 947, 953; People v. Loferski (1992), 235 Ill. App. 3d. 675, 684, 601 N.E.2d 1135, 1141.) Defendant asserts that because the jury could, have construed his statements as an implicit admission, the trial court’s error in limiting rebuttal evidence constituted plain error that requires reversal.

We disagree with defendant’s contention that he was denied his constitutional right to confront witnesses. We also disagree with defendant’s claim that the trial court’s preclusion of his proffered evidence left the jury with his “implicit admission” (whatever that is). Instead, we view defendant’s proffered evidence as nothing more than a poorly veiled attempt to avoid the prohibitions of the rape shield statute and “dirty up” B.T.

The rape shield statute provides, in pertinent part, as follows:

“In prosecutions for *** criminal sexual assault, *** the prior sexual activity or the reputation of the alleged victim is inadmissible except as evidence concerning the past sexual conduct of the alleged victim with the accused.” (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 7(a).)

In People v. Sandoval (1990), 135 Ill. 2d 159, 170-71, 552 N.E.2d 726, 730-31, the Illinois Supreme Court stated the following regarding the rape shield statute:

“The language of the statute *** is concise and precise. *** The rape shield statute is neither vague nor ambiguous. We note that the statute does not limit its proscription to a defendant’s attempts to introduce evidence of the victim’s prior sexual encounters; the statute says quite simply that ‘the prior sexual activity *** is inadmissible.’ (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 7(a).) *** [T]he exception addresses only the ‘past sexual conduct of the alleged victim with the accused.’ Ill. Rev. Stat. 1987, ch. 38, par. 115-7(a).
* * *
*** The language of the statute *** leaves no room for introduction of reputation or specific-act evidence from any party in the action.” (Emphasis in original.)

Thus, as construed by the Illinois Supreme Court, the rape shield statute unequivocally proscribes the admission of the proffered evidence here of B.T.’s prior sexual conduct. (See People v. Bell (1991), 217 Ill. App. 3d 985, 1004, 577 N.E.2d 1228, 1242.) The proffered evidence — B.T.’s alleged comments about her fear of pregnancy by someone other than defendant — directly relates to her prior sexual activity with someone other than defendant and is therefore inadmissible under the rape shield statute.

Nevertheless, defendant argues that applying the rape shield statute here denied him his right to confront witnesses because the result was to leave the jury with his “implicit admission.” Citing Davis v. Alaska (1974), 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105, defendant asserts that the rape shield statute cannot bar his sixth amendment right to impeach B.T. by attacking her credibility concerning the crime charged. In so arguing, defendant entirely ignores the discussion and analysis of Davis by the Illinois Supreme Court in Sandoval, when that court wrote the following:

“With the Davis decision, the Court does not present the defense with a blanket invitation to attack a witness. Rather, Davis limits such an attack to situations where the confrontation is both relevant and based on a showing of bias, prejudice or motive. Thus, Davis stands for the proposition that not even a statute can be used to shelter a witness whose motive, prejudice or bias may affect testimony before the court. [(Emphasis added.)] The emphasis of Davis was not to create an exception to the statutory protection, but to prevent the statute from creating an exception to the well-settled and accepted admissibility of the motive, bias or prejudice of a particular witness.” (Emphasis in original unless otherwise specified.) Sandoval, 135 Ill. 2d at 174-75, 552 N.E.2d at 733.

Defendant claimed that he did not commit the alleged sexual conduct with B.T. that she testified about. When testimony conflicts, the jury must determine whom to believe. To assist the jury in that determination, the court instructs the jury on factors it might consider. (See Illinois Pattern Jury Instructions, Criminal, No. 1.02 (3d ed. 1992) (hereinafter IPI Criminal 3d).) However, for the reasons discussed in Sandoval, B.T.’s credibility cannot be attacked by evidence of her alleged sexual history with someone other than defendant. Sandoval, 135 Ill. 2d at 171, 552 N.E.2d at 731; Ill. Rev. Stat. 1989, ch. 38, par. 115-7(a).

As the supreme court noted in Sandoval, defendant here appears to be “attempting to do precisely what the rape shield statute was enacted to prevent: to divert the jury’s attention from the accusation against him.” Sandoval, 135 Ill. 2d at 176, 552 N.E.2d at 733; see also Bell, 217 Ill. App. 3d at 1006, 577 N.E.2d at 1244 (evidence of other possible assaults is too remote and diversionary to warrant a breach of protection afforded by the rape shield statute).

Even if the rape shield statute did not prohibit defendant’s proffered evidence about B.T.’s alleged sexual history, we would nonetheless hold that the trial court properly excluded that evidence because it related only to a collateral matter and therefore could not have impinged upon defendant’s right to confrontation. A witness cannot be impeached on collateral evidence (see Sandoval, 135 Ill. 2d at 181, 552 N.E.2d at 736; People v. Fonza (1991), 217 Ill. App. 3d 883, 887, 578 N.E.2d 8, 12); because a complainant’s prior sexual history is collateral evidence, it is irrelevant in a sexual assault trial. Sandoval, 135 Ill. 2d at 181, 552 N.E.2d at 736.

Defendant’s attempt to present evidence concerning B.T.’s expressed fear of pregnancy was nothing more than an attempt to “dirty up” B.T. by bringing out her sexual history. However, her alleged sexual history had nothing to do with defendant’s defense — his denial that he committed these acts with B.T. No issue existed at trial regarding whether B.T. was ever pregnant — or if she was, who the father was — until defendant brought the matter up in cross-examination and then further explored it in re-cross-examination. In short, B.T.’s feared pregnancy was a collateral matter that did not address the question of whether defendant had sex with B.T.

The answer a witness gives on cross-examination to a collateral matter — here, B.T.’s statement that she had sex only with defendant-must be accepted by the questioner without further elaboration. (Sandoval, 135 Ill. 2d at 194, 552 N.E.2d at 742.) Accordingly, defendant must accept B.T.’s negative responses and the possible consequences flowing therefrom, including that the jury might find an “implicit admission” from this testimony.

The reception of collateral evidence intended to affect a witness’ credibility rests within the trial court’s discretion, and a reviewing court will not disturb its decision absent an abuse of that discretion. (People v. Printy (1992), 232 Ill. App. 3d 735, 745, 598 N.E.2d 346, 354.) Under the confrontation clause, the court’s focus should be on whether adequate facts have been presented to the jury so that it can determine a witness’ credibility, not on the specific limitation placed on the cross-examination. (People v. Collette (1991), 217 Ill. App. 3d 465, 468, 577 N.E.2d 550, 553 (scope of cross-examination is not unlimited; when evidence is only marginally relevant, a court may impose restrictions).) Based on our review of the overall evidence presented at trial, especially B.T.’s testimony and defense counsel’s ability to cross-examine B.T. on relevant matters, we find that the trial court neither abused its discretion nor denied defendant his constitutional right of confrontation.

B. Jury Instructions Omitted on Mental State Element

Defendant next argues that his conviction must be reversed because the jury instructions for criminal sexual assault did not include a mental state, namely, the definitional instructions for criminal sexual assault and sexual penetration as well as the issues instruction for criminal sexual assault (see IPI Criminal 3d Nos. 11.55, 11.65E, 11.56). However, defendant waived this issue for review because he failed to object at trial or in his post-trial motion. We also find that the instructions given do not constitute plain error. (See People v. Smith (1991), 209 Ill. App. 3d 1043, 1061, 568 N.E.2d 482, 493.) We have previously ruled that a mental state need not be specified when instructing the jury on the elements of aggravated criminal sexual assault. (Smith, 209 Ill. App. 3d at 1061, 568 N.E.2d at 493; People v. Burton (1990), 201 Ill. App. 3d 116, 122, 558 N.E.2d 1369, 1373-74.) We now extend this ruling to hold that a mental state need not be specified when instructing the jury on the elements of criminal sexual assault. See People v. Mason (1991), 219 Ill. App. 3d 76, 82, 578 N.E.2d 1351, 1356.

C. Prosecutor’s Closing Argument

Defendant also contends that the prosecutor committed reversible error during closing argument. He claims that during the State’s closing argument, the State attempted to bolster its case with medical evidence that was never presented at trial. The State’s argument at issue is the following:

“[Defense counsel] has talked about corroboration. One of the things he mentioned is we had no medical testimony that showed that [B.T.], in a physical examination, had a vaginal canal that was wide open and a cervix that was easily examined. Do you really think that if [a doctor] made a determination that [B.T.] had a hymen still intact and apparently — .”

At this point, defense counsel objected and the trial court sustained the objection. The prosecutor made no further comments along that line of argument.

At the hearing on defendant’s post-trial motion, the trial court addressed the prosecutor’s allegedly improper argument and stated the following:

“[The prosecutor], in his closing argument *** was getting into an area which was objectionable. And I think that before he even got very much past the threshold, there was an objection, and I sustained it, and the jury, at the very least in their written instructions, were instructed to disregard any such remarks or questions or responses to which objections were sustained. And I believe that was adequate protection, and that the problem was cured.”

We agree with the trial court. The prosecutor never even completed the allegedly improper statement, further reducing any effect it could have had upon the jury. We also note that defendant never asked the court to specifically admonish the jury to disregard the prosecutor’s statement. Therefore, without reviewing the propriety of the prosecutor’s argument, we deem that argument of no moment in the context of the entire trial. See People v. Smith (1990), 199 Ill. App. 3d 839, 854, 557 N.E.2d 596, 607-08 (prosecutor’s closing argument must be considered in the context of closing arguments from both parties).

D. Defendant’s Sentence

Defendant next argues that the trial court abused its discretion when it sentenced him to three consecutive four-year terms of imprisonment instead of probation. Defendant contends that because he was a hard-working man, had no prior criminal record, and had a history of health problems, the court should have sentenced him to probation.

Section 5 — 5—3(e) of the Unified Code of Corrections (Unified Code) (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3(e)), permits a court under certain circumstances to sentence a defendant convicted of criminal sexual assault of a family member to probation. Defendant contends that the trial court erred in not giving full consideration to whether probation was appropriate for defendant under the factors outlined in section 5 — 5—3(e) of the Unified Code. However, section 5 — 5—3(e) of the Unified Code does not require the court to sentence a defendant to probation, and the court’s determination of this matter lies within its discretion. People v. Houck (1989), 185 Ill. App. 3d 585, 589, 541 N.E.2d 813, 815.

At the sentencing hearing, the trial court explained the sentences it imposed as follows:

“[TJhere are certainly a number of things that *** would call for a sentence here to be mitigated. The fact, of course, first of all, that [defendant has] no prior criminal record; [and] that defendant has, apparently, always had an excellent record of employment. Those things, of course, do and should count heavily in the court’s thinking in any type of sentencing hearing. * * *
***
[However,] I view the consistency of the conduct over time, its calculated nature, *** the impact that it’s had upon the victim, and I have to find that there is more here to aggravate a sentence *** than there is truly to mitigate [it].
I do believe under all of the circumstances, considering the nature and the circumstances of the offense, that a sentence to probation would deprecate the seriousness of the offense and the defendant’s conduct. And I do believe under all the circumstances that a sentence to probation would be inconsistent with the ends of justice.”

The sentencing judge is in the best position to make a firsthand, reasoned judgment on the appropriate sentence based on the particular circumstances and factors of each case. (People v. Costello (1992), 224 Ill. App. 3d 500, 510, 586 N.E.2d 742, 749; People v. Black (1992), 223 Ill. App. 3d 630, 633, 585 N.E.2d 1228, 1231.) The trial court has wide latitude in determining and weighing factors in mitigation or aggravation when exercising its discretion and imposing a sentence. (People v. McCarthy (1991), 213 Ill. App. 3d 873, 887-88, 572 N.E.2d 1219, 1228-29; see also Costello, 224 Ill. App. 3d at 510, 586 N.E.2d at 749 (fact that defendant is first-time offender is merely another mitigating factor).) The trial court’s ruling is given great deference and weight on appeal (People v. Taggart (1992), 233 Ill. App. 3d 530, 560, 599 N.E.2d 501, 522), and a sentence which falls within the statutory guidelines will not be disturbed on review unless it is manifestly disproportionate to the nature of the offense (Costello, 224 Ill. App. 3d at 510, 586 N.E.2d at 749). The record here reveals that the trial court properly considered all relevant mitigating and aggravating factors when it determined defendant’s sentence, and we find no abuse of discretion in its sentencing defendant to three consecutive four-year prison terms instead of probation.

E. Mandatory Consecutive Sentences

Last, defendant argues that the trial court incorrectly thought itself required under section 5 — 8—i(a) of the Unified Code (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—4(a)) to impose consecutive prison sentences on each of defendant’s convictions. The second to last sentence of section 5 — 8—4(a) of the Unified Code reads as follows:

“The court shall not impose consecutive sentences for offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective, unless, one of the offenses for which defendant was convicted was a Class X or Class 1 felony and the defendant inflicted severe bodily injury, or where the defendant was convicted of a violation of Section 12 — 13 or 12— lk of the Criminal Code of 1961, in which event the court shall enter sentences to run consecutively.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—4(a).

In People v. Ewald (1991), 210 Ill. App. 3d 7, 568 N.E.2d 451, this court held that section 5 — 8—4(a) of the Unified Code requires trial courts to impose consecutive prison sentences for multiple convictions under section 12 — 13 of the Criminal Code. Defendant argues that we should overrule Ewald because the Second District Appellate Court came to an opposite conclusion in People v. Bole (1991), 223 Ill. App. 3d 247, 585 N.E.2d 135, appeal allowed (1992), 144 Ill. 2d 636, 591 N.E.2d 24. The Fifth District Appellate Court agreed with our conclusion in Ewald (see People v. Hough (1991), 221 Ill. App. 3d 447, 582 N.E.2d 259), while the Third District Appellate Court agreed with Bole (see People v. Dooley (1992), 227 Ill. App. 3d 1063, 592 N.E.2d 1112).

In our judgment, however, the Illinois Supreme Court has resolved the differences between Ewald and Bole. In People v. Wittenmyer (1992), 151 Ill. 2d 175, 195-96, 601 N.E.2d 735, 744-45, the supreme court held the following:

“After carefully reviewing the plain language of [section 5— 8 — 4(a) of the Unified Code], we believe that the legislature has provided for two exceptions to the general rule that a trial court shall not impose consecutive sentences for offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective. First, if one of the offenses for which defendant was convicted was a Class X or Class 1 felony and the defendant inflicted severe bodily injury, the legislature has mandated that the trial court impose consecutive sentences. Second, if the defendant was convicted of a violation of section 12 — 13 or 12 — 14 of the Criminal Code, the legislature had mandated that the trial court must [also] impose consecutive sentences.” (Emphasis in original.)

This interpretation upholds Ewald and tacitly rejects Bole. (See also People v. Glass (1992), 239 Ill. App. 3d 916, 930 (reaffirming this court’s position in Ewald).) Accordingly, we hold that section 5 — 8— 4(a) of the Unified Code requires a sentencing court to impose consecutive sentences for multiple convictions under section 12 — 13 of the Criminal Code. Because the jury convicted defendant of multiple violations of section 12 — 13 of the Criminal Code, consecutive sentences were required in this case. Therefore, we affirm the trial court’s imposition of three consecutive four-year sentences upon defendant.

III. Conclusion

For the reasons stated, we affirm defendant’s convictions on all three counts and the trial court’s imposition of three consecutive four-year sentences upon defendant.

Affirmed.

KNECHT and LUND, JJ., concur.


author: JUSTICE BARRY

text:
      In re APPLICATION OF JOHN J. (JACK) WEBER, County Treasurer and ex officio County Collector of Will County for Order of Correct Tax on Property Paid Under Protest for 1990 (John J. (Jack) Weber, County Treasurer and ex officio County Collector, Applicant-Appellee, v. White Eagle Golf Club, Objector-Appellant).
    Third District
    No. 3—92—0420
    Opinion filed February 3, 1993.
    Modified on denial of rehearing March 11,1993.

      Henry B. Vess III and Richard W. Goeken, both of Dommermuth, Brestal, Cobine & West, Ltd., of Naperville (Kevin Gensler, of counsel), for appellant.
    Edward Burmila, Jr., State’s Attorney, of Joliet (Richard B. Taylor, Assistant State’s Attorney, of counsel), for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

White Eagle Golf Club appeals from the dismissal of its tax objection to the 1990 real property taxes levied on the 85 acres of land comprising its golf course. The land in question had been taxed on an assessed valuation of $5,000 per acre.

Prior to 1990 the golf course land had been identified for tax purposes by the permanent real estate index number (PIN) 01 — 04— 100 — 004 (hereafter, 004) and had been approved for open space valuation of $500 per acre under section 20g— 1 of the Revenue Act of 1939 (35 ILCS 205/20g — 1 (West 1992)), which provides:

“[L]and which is used for open space purposes and has been so used for the 3 years immediately preceding the year in which the assessment is made shall be valued on the basis of its fair cash value, estimated at the price it would bring at a fair, voluntary sale for use by the buyer for open space purposes.
Land is used for open space purposes within the meaning of this Section if it is more than 10 acres in area and *** conserves landscaped areas, such as public or private golf courses ***.”

Section 20g — 2 sets forth the procedure for applying for open spaces valuation as follows:

“The person liable for taxes on land used for open space purposés must file a verified application *** with the county assessor of the county where the land is located by January 1 of each year for which that valuation is desired. If the application required by this Section is not filed by January 31 *** the failure to make that timely filing constitutes a waiver of the right to claim that additional valuation for that year. ***
If the application shows the applicant is entitled to the valuation under Section 20g — 1, the county assessor shall approve it; otherwise, he shall reject the application.” 35 ILCS 205/ 20g — 2 (West 1992).

The White Eagle Golf Club (Golf Club) filed its application for open space valuation for PIN 004 for tax year 1990 on January 5, 1990, and the county supervisor of assessments approved the open spaces valuation of $500 per acre. However, when the Golf Club bill for 1990 taxes arrived in the late spring of 1991, the assessed valuation of the land was shown to be $5,000 per acre. The Golf Club had no prior notice that the open space valuation previously granted would not be used for the computation of 1990 taxes on the golf course land.

The increase was the result of an administrative error. In December of 1989 White Eagle Golf Club subdivided the land which included the golf course. Although the subdivision plat was filed in December 1989, new PINs were not immediately assigned to the various parcels. At the time the open space valuation application for 1990 was filed and granted, the Golf Club land was still identified on county records as PIN 004. According to county records, by the time 1990 taxes were extended, a new PIN had been assigned to the 85 acres in question here, and they were now designated as 010. Since no open space application had been granted for PIN 010, the valuation was increased to $5,000 per acre.

Section 20g — 4 of the Revenue Act of 1939 expressly provides that the platting and subdivision of land shall not alone increase the assessed valuation. To the contrary, the assessed valuation of subdivided land must be determined on the basis of its fair market value “for the same purposes for which such land was used when last assessed prior to its platting.” (35 ILCS 205/20g — 4(b) (West 1992).) Therefore, clearly the tenfold increase in assessed valuation was contrary to the provisions of the Revenue Act of 1939.

The Golf Club paid its 1990 tax in two installments, one in June of 1991 and one in August of 1991, both under protest, and in due course, filed an objection in the proceedings before us here. After a hearing, the trial court dismissed the objection and subsequently denied a motion for reconsideration. The trial court ruled that the objector failed to pursue its administrative remedies by filing a complaint with the Will County board of review and that the objector failed to plead that an open space valuation for the parcel in question was granted for the tax year 1990.

The objector contends, first, that in its response to the county-collector’s motion to dismiss the objector pleaded that open space valuation had been granted for the golf course land for the year 1990, and subsequently for the tax year 1991 as well, and that the application forms reflecting the supervisor of assessments’ action were attached to its response. Therefore, the court erred in ruling that those necessary facts were not pleaded. The county collector responds that the 1990 application designated PIN 004 as the parcel for which open space valuation was sought and that no application was filed for PIN 010. The county collector concludes that the failure to file a timely application for PIN 010 was a waiver of the right to claim open space valuation for that parcel.

There is no dispute that the land used for a golf course is still so used and that the only thing that has changed is its PIN. The assignment of a new PIN after the Golf Club land was subdivided was a ministerial duty performed by the county assessment map department. The documents in the record from the map department disclose that the number of parcel 004 was changed to 010 and other numbers not here involved. Thus, it appears that the objector complied with the law to the greatest extent possible to obtain its open space valuation for 1990.

The trial court’s conclusion that the objector is barred for failure to pursue its administrative remedies was also erroneous. It is undisputed that the first notice the objector had of the increase in the assessed valuation of the golf course acreage was when the tax bill was received in 1991. The books of the board of review for the assessment year 1990 would have been closed by that time and a complaint for an error in an assessment could no longer be filed. See 35 ILCS 205/107 (West 1992).

The trial court relied upon those cases holding that a taxpayer must pursue administrative remedies to correct errors in tax assessments before judicial relief will be available. For example, in People ex rel. Nordlund v. Lans (1964), 31 Ill. 2d 477, 202 N.E.2d 450, the supreme court ruled that filing a complaint with the board of review is a condition precedent to filing objections to the collector’s application for judgment. Accord People ex rel. County Collector v. Bostwick (1965), 33 Ill. 2d 74, 210 N.E.2d 189.

However, Illinois courts have not been inflexible in applying the exhaustion of remedies rule. In Hoyne Savings & Loan Association v. Hare (1974), 60 Ill. 2d 84, 322 N.E.2d 833, a new township assessor increased the value of certain residential land from $9,510 to $246,810 for the year 1971 based upon land uses not permitted under the applicable zoning ordinance. Taxpayer had no actual notice until the tax bill was received, a date after the board of review had closed its books for the year. The taxpayer did not file with the board of review in 1972 either, but in 1973 the board acted on the taxpayer’s complaint and reduced the valuation to $55,000. The supreme court observed that by the board’s 1973 action, assessing officials had acknowledged that the 1971 assessment was grossly excessive, and so the court concluded that it was unfair and unjust to deny the taxpayer a remedy for 1971. An injunction granted by the trial court for a reduction in 1971 taxes was affirmed. However, no relief was granted for 1972 taxes because the taxpayer had an opportunity to file a complaint with board of review for that assessment year and failed to do so.

Similarly, in People ex rel. Korzen v. Fulton Market Cold Storage Co. (1976), 62 Ill. 2d 443, 343 N.E.2d 450, the court acknowledged that the filing of a complaint with the board of review would not be required if there were no means by which the reduction in the assessed valuation of the taxpayer’s property could be effected under the statutory administrative procedure, even though such was not the case there.

In the cause before us, the record contains no evidence that the objector’s increase in valuation was published prior to the extension of taxes. Thus, here, as in Hoyne Savings & Loan Association v. Hare, the taxpayer had no opportunity to pursue an administrative remedy for the year in question. In both cases, the assessing authorities admit the the taxpayer’s assessment was grossly excessive, here by virtue of the reduced assessment granted subsequently. In fact, when the supervisor of assessments here approved the open space valuation for 1991, he established that PIN 010 had been used for open space purposes for the three years immediately preceding 1991.

Unlike the taxpayer in the Hoyne Savings & Loan case, the Golf Club did not seek injunctive relief against the county collector, but instead paid its taxes under protest and filed an objection based on the administrative errors which had resulted in an assessed valuation 10 times the proper amount. After the supervisor of assessments granted the Golf Club’s application for open space valuation for 1990, that valuation was ignored simply because of a change in PIN for the parcel in question after the application was granted.

We hold that the circuit court of Will County erred in refusing to grant a reduction in the Golf Club’s valuation as justice requires. Accordingly, we remand to the circuit court of Will County for further proceedings to determine the correct amount of refund to which the Golf Club is entitled and to order same.

Reversed and remanded.

McCUSKEY, P.J., and STOUDER, J., concur.