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    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL JOHNSON, Defendant-Appellant.
    Fourth District
    No. 4 — 92—0526
    Opinion filed September 9, 1993.

      Daniel D. Yuhas and Lawrence J. Essig, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Brown, State’s Attorney, of Pontiac (Norbert J. Goetten, Robert J. Biderman, and Denise M. Ambrose, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

Defendant Michael Johnson appeals from his conviction of solicitation to commit first degree murder (Ill. Rev. Stat. 1987, ch. 38, pars. 8 — 1(a), 9 — 1), conspiracy to commit first degree murder (Ill. Rev. Stat. 1987, ch. 38, pars. 8 — 2(a), 9 — 1), and first degree murder (Ill. Rev. Stat. 1987, ch. 38, pars. 9 — l(a)(l), (a)(2)). Defendant alleges the trial court erred in (1) denying his motion to suppress a statement made to an undercover informant; (2) improperly admitting evidence of defendant’s gang membership and the circumstances surrounding the death of a fellow gang member; (3) improperly admitting evidence defendant was a chief of security for the Black Gangster Disciples (BGD) and was of a violent character; (4) improperly admitting testimony regarding threats made by gang members to prison guards; (5) improperly providing the jury with five sets of instructions regarding first degree murder; and (6) improperly convicting him of conspiracy to commit first degree murder and solicitation to commit first degree murder in addition to first degree murder. We affirm defendant’s conviction of first degree murder, and vacate the convictions of conspiracy to commit first degree murder and solicitation to commit first degree murder.

I. Facts

The situation which culminated in the murder of Superintendent Taylor began on July 20, 1987. On this date two inmates, Billy “Zodiac” Jones and Kirk Williams, both BGD members, were being transferred from their cell at Pontiac Correctional facility (Pontiac) to segregation. In response to statements made by Williams, gang members yelled threats and BGD slogans. While being transferred from his cell, Jones died as the result of ingesting a bag of cocaine. In the following weeks, some BGD members were removed to segregation. The BGD became upset with the treatment they perceived they were receiving from the administration, and also blamed the administration for Jones’ death.

Harry Martin, a BGD member working with the police, testified the BGD gang is organized like a corporation. A chairman of the board, co-chairman of the board, and board of directors are responsible for setting policy for the organization. Below the board of directors, there is an institutional coordinator and assistant institutional coordinator in each correctional institution. Below them are institutional coordinators of education, treasury, exercise and the United Front Organization (UFO). The UFO is the security arm of the BGD and the institutional coordinator of the UFO is commonly referred to as the chief of security. The chief of security in each institution is responsible for the operations of security in the institution. The function of the chief of security is to provide bodyguards for the board members, make sure certain gang members have weapons, and plan and direct the attacks on staff, other inmates, and individuals within the gang. Subordinate to the chief of security are unit coordinators of chiefs of security for each cellblock or division of the institution.

Larry Hoover was the chairman of the board of directors. Mike Akins was the institutional coordinator, and Corwyn “Ketchup” Brown was the assistant institutional coordinator at Pontiac. Defendant was the chief of security at the Pontiac facility. David “Cap” Carter, a subordinate of defendant, was the chief of security for the south cellblock. Anthony Williams, Ike “J.R” Easley, and Roosevelt “Rodog” Lucas were BCD security officers.

After Jones’ death, defendant and Carter instructed gang members regarding attacks or murders which were to be carried out against members of the prison administration. Specifically, defendant instructed Carter regarding an attack on Taylor. Carter instructed Easley and Lucas to murder Taylor. Easley and Lucas attacked Taylor with a shank and pipe; Taylor died from wounds suffered in the attack.

During the investigation of Taylor’s death, Martin visited defendant in prison. Martin had a tape-recording device concealed on his person. Defendant was unaware Martin was working with the police. Rather, defendant believed Martin was an emissary from Hoover, leader of the BCD. During his conversation with Martin, defendant acknowledged he was the chief of security, and he was responsible for the attack on Taylor. Defendant stated the attack on Taylor was motivated mainly by a desire to retaliate against the administration for its treatment of BCD, and to demonstrate the strength of the BCD. Defendant acknowledged instructing Carter to coordinate the attack, but stated he (defendant) did not intend for Taylor to be murdered. Defendant intended for Taylor to be beaten on the head with a pipe until unconscious.

Defendant was charged with one count of conspiracy to commit first degree murder, three counts of solicitation to commit first degree murder, and five counts of first degree murder. Defendant filed a motion to suppress the statements he made to Martin, which was granted on fifth amendment grounds. The State appealed the trial court’s ruling on the motion to suppress, and we reversed. (People v. Johnson (1990), 197 Ill. App. 3d 762, 766, 555 N.E.2d 412, 414.) On remand, defendant made an oral motion to suppress the statements on sixth amendment grounds. The motion was denied.

After a jury trial, defendant was convicted of three counts of solicitation to commit first degree murder, one count of conspiracy to commit first degree murder, and three counts of first degree murder. The trial court vacated the convictions of two of the counts of first degree murder and two of the counts of solicitation to commit first degree murder. Defendant, who has a previous conviction for first degree murder, was sentenced to natural life in prison on the first degree murder conviction. Defendant was also sentenced to 30 years’ imprisonment for solicitation to commit first degree murder, and 14 years’ imprisonment for conspiracy to commit first degree murder. All three sentences were to be served concurrently with each other, and consecutive to the sentences defendant is currently serving. Defendant appeals.

II. Statement Made To Undercover Informant

Defendant alleges the trial court erred in admitting a taped recording of a conversation between defendant and Martin, during which defendant made inculpatory statements regarding his involvement in the death of Taylor. Defendant alleges his statements were involuntary under the fourteenth amendment and obtained in violation of the sixth amendment.

Defendant has waived consideration of whether his statement was involuntary under the fourteenth amendment due to his failure to raise this contention in his motion to suppress. In People v. Travis (1988), 170 Ill. App. 3d 873, 879, 525 N.E.2d 1137, 1140, defendant filed a motion to suppress statements he made to police officers because he was not taken without unnecessary delay before a judicial officer, and because the statements stemmed from an unknowing and involuntary waiver of his rights due to his subnormal intelligence and the fact he was intoxicated, deprived of sleep, and threatened by the police. The trial court denied defendant’s motion. (Travis, 170 Ill. App. 3d at 882, 525 N.E.2d at 1141.) On appeal, the defendant did not allege the motion to suppress should have been granted for the reasons specified in the motion to suppress, but for reasons which had not been raised in the motion to suppress. Specifically, defendant alleged by throwing a written interview form to the floor and stating he would not sign anything he indicated he wished to remain silent, and the police officer involved did not scrupulously honor this request. We noted defendant had waived this contention as it was not one of the grounds for suppression raised in his motion to suppress. Travis, 170 Ill. App. 3d at 883, 525 N.E.2d at 1142-43.

Similarly, in this case, defendant filed a motion to suppress based upon failure to comply with an overhear order. Defendant amended this motion to allege his statements were obtained in violation of the fifth amendment. On remand, defendant made an oral motion to suppress, adopting the argument of Carter, that the statements were obtained in violation of the sixth amendment. However, defendant never alleged the statements should be suppressed because they were involuntary under the fourteenth amendment. Since this was not one of the grounds for suppression raised in defendant’s motion to suppress, it has been waived.

Defendant has additionally waived consideration of whether the statements to Martin should have been suppressed on both fourteenth and sixth amendment grounds, due to his failure to bring these allegations to the court with sufficient specificity in his post-trial motion. In order to preserve an argument, for the purpose of appeal, from a jury trial, the challenge must be presented to the trial court not only at the motion to suppress stage, but it must also be included in the defendant’s post-trial motion. (See People v. Cleesen (1988), 177 Ill. App. 3d 103, 114, 531 N.E.2d 1113, 1120, citing People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1129-30.) A central purpose of this requirement is to give the reviewing court the benefit of the trial court’s judgment on the specific allegation. (People v. Irwin (1965), 32 Ill. 2d 441, 443-44, 207 N.E.2d 76, 78.) Broad and general allegations in a post-trial motion are inadequate to advise the court of the challenge being raised, and are inadequate to preserve an issue for appellate review. People v. Bailey (1979), 77 Ill. App. 3d 953, 956, 404 N.E.2d 258, 260.

In People v. Buckner (1991), 219 Ill. App. 3d 307, 309-10, 579 N.E.2d 1166, 1168, the State argued in this court a defendant failed to preserve his contention the court erred in granting the State’s motion in limine, barring defendant from introducing evidence of the victim’s infection with the HIV virus. The defendant filed a post-trial motion alleging the trial court erred in preventing him from introducing this evidence, which he alleged to be relevant to the issue of self-defense. We determined these allegations were sufficiently specific, and the defendant had preserved his allegations of error for review. (Buckner, 219 Ill. App. 3d at 310, 579 N.E.2d at 1169.) In the present case, the only allegation in the post-trial motion related to the motion to suppress stated: “the court erred in admitting the tape recording of defendant’s conversations even in the conspiracy counts.” This allegation of error does not inform the court that defendant alleges the tape should not have been admitted because it was obtained in violation of his sixth amendment rights and under circumstances not comporting with the due process guarantees of the fourteenth amendment. In ruling on the post-trial motion, the trial court seemed to be under the impression the defendant alleged the tape was improperly admitted because it was obtained in a manner not comporting with the overhear order, or because it was not relevant. Specifically, the court stated:

“I authorized the overhear. When I did so, I believed that Mr. Martin would simply be a listener and would only be listening to information volunteered by whoever he was talking to. Instead, he did what amounted to a very accomplished acting job, proceeded to pump, pry and pull all kinds of information out of various defendants, including Michael Johnson.
Based upon the case of People vs. Perkins in the Fifth District which had just been decided at the same time I was addressing this issue, I was compelled to hold that the statements by Mr. Johnson to Harry Martin acting undercover must be suppressed for failure to give Miranda warnings, that an inmate working for law enforcement acting undercover was acting as a police agent and was obligated under a 1960 U.S. Supreme Court ruling to give the same admonishments a police officer would give even though it would be ridiculous and no one would say anything as soon as they were told their Miranda right by somebody they thought was a friend or fellow gang member.
That decision was reversed by the Fourth District who chose to disregard Perkins, in a very unusual move, and at the same time the U.S. Supreme Court took Perkins out of the Fifth District and reversed Perkins and changed the law, so that made, in my opinion, the key element in this case available to the prosecution for the purposes of trial and that key element was the tape recording of the conversation between Michael Johnson and Harry Martin and that for whatever additional information Anthony Williams added or anyone else, this is a case which hinged almost entirely on that tape and what was said on that tape by Michael Johnson and how much knowledge he indicated on that tape he had in the murder of Superintendent Taylor and what role he took in that.
* * *
*** I recognize that the tape is critical and it took a change in the law by the U.S. Supreme Court during the course of the trial to make that tape admissible.
That’s what occurred. The tape is admissible. The jury listened to it and the jury heard Mr. Johnson’s explanation of what that meant on the tape ***.”

From the trial court’s discussion of (1) Martin’s behavior, which exceeded that expected by the judge when granting the overhear order, (2) the People v. Perkins (1988), 176 Ill. App. 3d 443, 537 N.E.2d 141, rev’d (1990), 496 U.S. 292, 110 L. Ed. 2d 243, 110 S. Ct. 2394, discussion which involves fifth amendment rights, and (3) the trial court’s assessment of the tape, the trial court may have believed defendant was alleging in his post-trial motion that the tape was obtained in a manner violating the overhear order, the tape was obtained in a manner violating his fifth amendment rights, or perhaps the tape was not relevant. However, there is no indication in the trial court’s discussion of the tape that the trial court understood the defendant to be alleging the tape was obtained in violation of defendant’s sixth amendment rights, or in a manner not comporting with the due process requirements of the fourteenth amendment.

Thus, defendant’s fourteenth amendment argument had been waived due to his failure to ever raise that issue in the trial court, and his failure to specifically raise it in a post-trial motion. Defendant’s sixth amendment argument is waived due to defendant’s failure to specifically raise it in his post-trial motion. However, we additionally note both arguments would fail if considered on their merits.

Defendant’s fourteenth amendment argument would fail if considered on its merits. By virtue of the due process clause, “ ‘certain interrogation techniques, either in isolation or as applied to the unique characteristics of a particular suspect, are so offensive to a civilized system of justice that they must be condemned.’ ” (People v. Easley (1992), 148 Ill. 2d 281, 314, 592 N.E.2d 1036, 1050, quoting Miller v. Fenton (1985), 474 U.S. 104, 109, 88 L. Ed. 2d 405, 410, 106 S. Ct. 445, 449.) The voluntariness of a statement under the fourteenth amendment depends on the absence of police overreaching. The inquiry is confined to the agent’s conduct and whether that conduct was causally related to the defendant’s confession. (Easley, 148 Ill. 2d at 312, 592 N.E.2d at 1049.) In Easley, the supreme court determined the ruse devised by the police to elicit Easley’s statement was so incompatible with the guarantees of the due process clause and to a civilized system of justice as to justify the conclusion that its further use must not be permitted. Easley, 148 Ill. 2d at 318, 592 N.E.2d at 1052.

In his conversation with Easley, Martin represented himself as an emissary from an attorney allegedly retained to represent Easley. Martin obtained Easley’s confession by assuring him it was being obtained for the attorney’s information. (Easley, 148 Ill. 2d at 318, 592 N.E.2d at 1052.) The supreme court reasoned that other than the relationship between a doctor and his patient, a clergy and a layman, or that between spouses, no relationship is accorded more privilege in the eyes of the law than the relationship between an attorney and a client. (Easley, 148 Ill. 2d at 315, 592 N.E.2d at 1051.) The present case is distinguishable from Easley. Unlike the representations made by Martin in Easley, in his conversation with defendant here Martin did not represent himself as an emissary from an attorney. Martin’s passing references to an attorney in his conversation with defendant were insufficient to cause defendant to reasonably believe Martin was speaking to defendant in order to obtain information for an attorney. Moreover, defendant made several inculpatory statements to Martin before Martin made any reference to an attorney. Under the circumstances of this case, we do not find defendant’s statement to Martin was involuntary under the due process clause of the fourteenth amendment.

We also reject defendant’s contention that his statements to Martin were obtained in violation of his sixth amendment rights. The trial court’s determination on a motion to suppress evidence will not be overturned unless it is manifestly erroneous. (People v. Hoskins (1984), 101 Ill. 2d 209, 212, 461 N.E.2d 941, 942; Cleesen, 177 Ill. App. 3d at 115, 531 N.E.2d at 1120.) In Easley, the Illinois Supreme Court ruled on the issue of suppression of similar evidence on sixth amendment grounds. (Easley, 148 Ill. 2d at 319, 592 N.E.2d at 1052-53.) In Easley, the supreme court determined statements made by Easley to Martin prior to being indicted for Taylor’s murder were not obtained in violation of the sixth amendment right to counsel, because the right to counsel had not attached. Defendant’s statements to Martin were also made prior to his indictment for the murder of Taylor. Accordingly, under the supreme court’s ruling in Easley, we must conclude the statements were not obtained in violation of the sixth amendment.

III. Defendant’s Gang Membership; Death Of Fellow Gang Member

Defendant alleges evidence of his membership in the BGD and evidence that Taylor was killed by the BGD to avenge the death of Billy “Zodiac” Jones, a BGD, as well as in retaliation for other actions by the administration was improperly admitted. Defendant alleges the connection between Jones’ death and Taylor’s murder was tenuous and the evidence complained of was more prejudicial than probative.

Defendant has waived consideration of these issues due to his failure to raise them in his post-trial motion. Defendant’s arguments would also fail if considered on the merits.

There may be a prejudice against street gangs; however, evidence regarding gang affiliation need not be excluded if it is otherwise relevant and admissible. Evidence indicating defendant was a member of a gang or was involved in gang-related activity is admissible to show common purpose or design, or to prove motive for an otherwise inexplicable act. Such evidence, however, is only admissible where there is sufficient proof such membership or activity is related to the crime charged. (People v. Smith (1990), 141 Ill. 2d 40, 58, 565 N.E.2d 900, 907. ) In Smith, defendant was charged with the killing of a Pontiac correctional officer outside of a Chicago bar. Shortly before the killing, a companion of defendant’s was seen talking to Treadis Murray, outside the bar while defendant was in the bar, as was the victim. (Smith, 141 Ill. 2d at 48, 565 N.E.2d at 902.) Defendant was talking to Murray at the time of his arrest, several days later. (Smith, 141 Ill. 2d at 51, 565 N.E.2d at 904.) One witness testified Murray was the leader of the King Cobra Street gang. (Smith, 141 Ill. 2d at 48, 565 N.E.2d at 902.) Defendant had once been seen at Murray’s apartment. (Smith, 141 Ill. 2d at 59, 565 N.E.2d at 907.) The State theorized defendant was a member of the King Cobra Street gang and the killing of the correctional officer was an assassination carried out on behalf of Murray and the King Cobras in retaliation for the correctional officer’s intolerance of gang activity in prison. (Smith, 141 Ill. 2d at 58, 565 N.E.2d at 907.) Other than evidence that the defendant had been seen talking to Murray, the State presented no evidence that defendant was a member of the King Cobras Street gang. The State additionally presented no evidence that defendant knew his victim was a correctional officer, the correctional officer was intolerant of gang activity in prison, or the correctional officer had intervened in a fight between Murray and another inmate several years earlier when Murray had been incarcerated in Pontiac. Accordingly, the court found there was insufficient evidence to tie the alleged motive to the defendant and the evidence of gang membership was, therefore, more prejudicial than probative. Smith, 141 Ill. 2d at 59, 565 N.E.2d at 908.

Similarly, in Easley, the supreme court ruled evidence of Easley’s membership in the BCD and of the BCD plot to kill Taylor was improperly admitted, although the admission of such evidence was harmless error. (Easley, 148 Ill. 2d at 330, 592 N.E.2d at 1058.) In Easley, no evidence was presented indicating any meetings had taken place, during which the BGD members had discussed murdering a member of the Pontiac staff in retaliation for Jones’ death. Nor did the State introduce evidence that Easley had been present at these meetings, if they had in fact occurred. Although a witness testified inmates said they were going to retaliate for Jones’ death, these statements were not linked in any way to the BGD or to defendant. The court noted when the State undertakes to prove facts which it asserts constitute a motive for the crime charged, it must be shown the accused knew of those facts. The court found the evidence introduced was woefully insufficient to allow introduction of the gang evidence. Easley, 148 Ill. 2d at 329, 592 N.E.2d at 1057-58.

Conversely, in People v. Lucas (1992), 151 Ill. 2d 461, 480, 603 N.E.2d 460, 468-69, the supreme court, under a set of facts similar to those in the present case, distinguished Easley, and found evidence of Lucas’ gang membership and evidence in support of the State’s theory to have been properly admitted. Lucas did not deny his membership in the BGD, and evidence was presented that Lucas was present at a BGD meeting where plans to retaliate against the administration were discussed. Accordingly, the supreme court concluded it was unreasonable to argue Lucas’ membership in the BGD was of no probative value. The court additionally found evidence of the BGD activities was also probative and relevant. Lucas, 151 Ill. 2d at 480, 603 N.E.2d at 468-69.

In the present case, both correctional officers and inmates testified defendant was a member of the BGD. This testimony was confirmed by the tape of defendant’s conversation with Martin. In his conversation with Martin, defendant acknowledged “Mike,” who had been previously identified as Mike Akins, was the institutional coordinator, “Ketchup” was the assistant institutional coordinator, and he was the chief of security. Although the organization in which the named individuals held these positions was not specified in the conversation, at trial defendant testified he believed Mike Akins to be the leader of the BGD, and also believed Ketchup was affiliated with the BGD.

There was also sufficient evidence that defendant’s membership in the BGD gang was related to the crime charged, and linking him with the motive theory advanced by the State. Anthony Williams, a BGD security officer, testified he attended a meeting of 30 BGD security members, which was held several weeks before Taylor’s murder. At this meeting, Johnson told the security members he was tired of the way correctional officers had been treating BGD gang members, and it was time for BGD gang members to start killing members of the administration. After the meeting of 30 security members, Johnson held a meeting attended by David “Cap” Carter, Ike “J.R.” Easley, Roosevelt “Rodog” Lucas, Kevin “K-dog” Clark, and Anthony Williams. At this meeting, defendant stated he wanted gang members to kill Captain Whitaker, Sergeant Stram, Lieutenant McBumey, and several other correctional officers. Carter wanted Taylor to be killed. However, defendant stated Taylor had been warned and would be given a chance to respond to the warning before a decision would be made regarding whether to kill him. Carter stated Anthony Williams, Lucas, and Clark were to kill Whitaker. Defendant instructed these three to use a knife and a pipe, and after Whitaker was killed, to leave the weapons in the office and close the door. Defendant also stated someone in the administration had to die in order for Jones’ death to be avenged.

Anthony Williams testified that, a couple of weeks later, on the morning of Taylor’s death, he was with Carter. Carter told Anthony Williams to look out the window. Anthony Williams looked, and saw “Mr. G.,” another BGD, being handcuffed and taken into segregation. Carter stated he was “tired of this shit, these officers constantly fucking over the brothers. We’re going to start hitting some of them. They getting hit today.” Carter then instructed Anthony Williams to remain on the gallery, and that he (Carter) would go outside to talk to defendant. Anthony Williams saw Carter, defendant, Mike Akins, and several other individuals talking in the yard. Anthony Williams was later called to Carter’s cell to stand guard. Anthony Williams heard Carter instructing Lucas and Easley to kill Taylor. Lucas and Easley put on stocking hats. Lucas had a pipe and Easley had a knife. Anthony Williams saw Lucas and Easley enter and then run away from Taylor’s office. After Lucas and Easley left Taylor’s office, Anthony Williams saw Taylor walk out of his office and collapse.

Anthony Williams’ testimony that defendant instructed gang members to kill Taylor was corroborated by defendant’s statements to Martin. In his conversation with Martin, defendant stated:

“Johnson: I know everybody they mad about Zodiac.
Martin: Little Z, huh.
Johnson: Okay, but, you know, right after that we got the word to leave that there shit alone, leave that alone. Okay, right after that they whooped one of the folks in the dining room. They just gorillad [sic] him. And one of the committee members stopped a UFO from getting out of hand because, you know, we can’t win in those dining halls, no how, so they stacked the deck. Then two days after that they whooped two more folks right out here on the crosswalk. They just getting carried away, right?
Martin: Uh huh.
Johnson: So, enough is enough. And now, see the thing is, they wasn’t supposed to kill that man. They was just gonna use some pipes. The Unit Coordinator of the UFO. You know, I ain’t had any chance to talk with him since we been locked up. ***
* * *
Martin: I’m trying to figure out cause he gonna ask me all this shit cause he was fucked up when I left there last trip. Now he’s saying to find out who called it. He said it ain’t no major. He just wanted to know so I can get on top of them and make sure they straight. Obviously, they had a good reason, but he wanted to get a grip on this kind of shit.
Johnson: This is what I would say — I guess that’s my responsibility, but like that’s why I’m saying, you know, that they wasn’t supposed to kill the man. Okay, but by me knowing how it goes, I mean, you know, I know exactly how that goes. I’ve had it coordinated for the UFO in the South House uppers and downers and east and west. Them there on the upper deck, their UFO coordinator is responsible for it. I instruct and make it clear, you know. But then, you know, like just use pipes, like make sure you all get a clean getaway. Well, this is on the table for two weeks. They had two weeks trying to coordinate just how they was gonna do it — timing and all of that. And, uh, maybe they didn’t intend for him to die, but he did. You know, that wasn’t on the agenda.
* * *
Johnson: I told him to just use the pipes. I gave him the whole week. I said now tell me exactly how you gonna do this. You know, he was gonna have a man on 8 gallery to distract the officers in the back. You know they got us barricaded in. You got to go through thirty gates to get off the gallery. They was going to distract the police on 8 gallery and turn the radio up loud ... turn that up loud and kill noise. And they gonna ... ski masks on ... Now what I was mainly concerned about was everybody getting away. We didn’t want no casualty cause I explained that I know we can’t win if every time we do something we get caught up. We want to get away. Don’t worry about it, it will happen the way they intended. They had clothes they was gonna change into and everything. Cap showed me the spot on my neck where he said they was gonna hit him and make sure he was unconscious, you know, cause they don’t want to leave him in there moving so they can get away. So this is all they probably had to do is try to keep him from moving on them. Hit him on the head.
Martin: Yeah, trying to knock him out?
Johnson: So the plan sounds good. I was concerned about the knock out part but, you know, it might not work. You got to keep on keeping on, but, you know, still that’s how he explained it to me.
Martin: So it was okay with you?
Johnson: Yeah.
Martin: Okay, what was, uh ...?
Johnson: They was singling us out. See the administration is singling us out because we was just so many of us, you know, we so organized and they was trying our hand. See after Zodiac, right away they took away all the brothers that they, all the aggressive brothers, that they thought was gonna just as soon as they let us off lockup. Straight off, all them. Put them on seg, right? Then they took Tony and them out of the cell cause they was throwing cans and hot water and shit at these motherfuckers that was being held. That’s just shit. All them, okay. Then they had another sweep that come back and got a few more. They come and take out J.R. cause he’s the brother on the security. He’s a good brother. Does strictly security. They get them cause they dirty. All the time they be shaking down everyday five cells in the morning and five at night. Sporadic at random. And they hit just us. Everytime they hit they find shanks. Okay, so they eliminating security knocking us all down so when they start whooping, the whoop on ‘Black’ in the dining room, the administration felt that we was at our weakest. They was trying our hand. We was trying to be cool, but they stacked the deck against themselves. Guess they fell. They was forcing us to do something cause they think we just got weak. They just singling us out, and they’re whooping us. They ain’t whooping nobody. But they’re whooping us to see how we gonna react. Then when they whooped them two brothers on the crosswalk, that was the ultimate. Brothers was saying we let things go too far, and when I explained to Cap that them brothers that they took to seg those were some of our best good brothers. They think now that we at our weakest. And I said you gotta take care of business before one of them brothers come out of seg *** they gonna feel that they influenced it. And while we at our weakest, we gonna show him we’re not weak. And this is the best time to get him while all them brothers is in seg already, out of the way, get him now.”

According to defendant’s statements to Martin, he (defendant) was responsible for “calling” the attack on Taylor. Defendant called the attack in retaliation for Jones’ death, but also in response to the actions of the administration in the weeks following Jones’ death. Defendant believed the administration “stacked the deck” against itself and forced the gang’s hand. Defendant instructed “Cap” to plan an attack. According to Johnson’s statement, he only intended for Taylor to be beaten with pipe and left unconscious, but did not intend for him to be killed. In light of this evidence, we believe the evidence of defendant’s gang membership and the motive evidence was properly admitted.

IV. Defendant’s Gang Position

Defendant alleges the trial court erred in admitting evidence defendant was chief of security of the BGD “and had a violent character.” Defendant has waived consideration of this issue due to his failure to raise it in his post-trial motion. However, any error in the admission of such evidence was harmless beyond a reasonable doubt.

Martin testified the chief of security is responsible for providing bodyguards to the board members, ensuring certain gang members have weapons, and ensuring attacks on other individuals are carried out. The chief of security is chosen based on loyalty to the organization and the sort of cases they have. Specifically, Martin testified:

“If you have got somebody with 35, 40, 50 years incarcerated and they have been a member of the organization for a very long time, they have murder cases or assault cases or weapons cases of some kind, then they would be prime candidates for this staff.”

In Lucas, the supreme court found Martin’s testimony describing the qualifications and responsibilities of the UFO was nothing more than an attempt by the State to portray Lucas as a person capable of murdering Taylor and thereby persuade the jury his propensity for violence made it likely he was guilty as charged. (Lucas, 151 Ill. 2d at 484, 603 N.E.2d at 470.) The State admitted it sought admission of evidence the role of the UFO was to carry out violence on behalf of the BGD on the grounds it was probative of whether Lucas was the type of gang member that would be involved, from his gang standpoint, in an attack on the administration.

We believe, in this case, the evidence that defendant was the chief of security of the BGD, and the ability of the chief of security to order other gang members to commit attacks, is distinguishable from the evidence introduced in Lucas. In the present case, the evidence was not admitted to demonstrate defendant was the type of individual likely to commit violence. Rather, the evidence was admitted to explain the authority defendant had over Carter, and ultimately, Lucas and Easley. Defendant acknowledged to Martin he was the BGD chief of security at Pontiac. Defendant’s position as chief of security and the evidence a chief of security was able to order or “call” an attack on a correctional officer or other individual was properly admitted.

The evidence of the qualifications of a chief of security was improperly admitted. This testimony, like the testimony of the qualifications of a security member introduced in Lucas, had no purpose other than to persuade the jury defendant was a violent criminal, and was therefore likely to have ordered the attack on Taylor in the present case. However, in light of the other evidence in the trial, the admission of this evidence did not deny defendant a fair trial. Lucas, 151 Ill. 2d at 484, 603 N.E.2d at 471.

V. Gang Threats To Guards

Defendant argues the trial court erred in admitting correctional officer Danny Jarrett’s testimony regarding statements made by gang member Kirk Williams when he and Jones were being removed from their cell, statements made by other inmates at this time, and testimony threats were made by BGD to Jarrett and other members of the administration. The State’s theory was the attack on Taylor was in retaliation for the death of Jones, and the treatment generally of the BGD by the administration. The supreme court decided a similar issue in Lucas, and determined evidence regarding the threats Jarrett received or heard was improperly admitted, but there admission was harmless error. (Lucas, 151 Ill. 2d at 478, 603 N.E.2d at 467-68.) As the court noted in Lucas, the threats did not go to the heart of the case. Whether the jury believed Williams made a speech against the administration and Jarrett was threatened by a BGD member, it still had to decide whether defendant was involved in the planning and ordering of Taylor’s death. (See Lucas, 151 Ill. 2d at 478, 603 N.E.2d at 468.) There was overwhelming evidence connecting defendant with the BGD and evidencing defendant’s role in ordering the murder of Superintendent Taylor. Thus, even without Jarrett’s testimony, defendant would have been proved guilty beyond a reasonable doubt.

VI. Jury Instructions

Defendant argues the trial court erred in giving the jury five instructions on the issue of first degree murder, one for each count of murder. We agree with defendant’s contention that only one issues instruction should have been provided to the jury. However, we find defendant failed to preserve this issue for review, and the error does not rise to the level of plain error.

The Illinois Supreme Court rules provide the Illinois Pattern Jury Instructions, Criminal (2d ed. 1981) (IPI Criminal 2d) shall be used in a criminal case unless the court determines it does not accurately state the law. (134 Ill. 2d R. 451(a).) IPI Criminal 2d Nos. 7.01A and 7.02A (Supp. 1989) make clear the jury should be instructed with only one definitional instruction and one issues instruction regarding the offense of first degree murder, no matter how many counts of first degree murder might be charged against the defendant. (People v. Presley (1992), 230 Ill. App. 3d 77, 95, 595 N.E.2d 606, 618 (Steigmann, J., specially concurring).) Moreover, the Illinois Supreme Court has approved the use of a general issues instruction for first degree murder although there are multiple counts of murder charged. This is because, under Illinois law, there is only one offense of first degree murder, no matter how many alternative ways the State may choose to charge a defendant with the offense of first degree murder. People v. Johnson (1992), 149 Ill. 2d 118, 156-57, 594 N.E.2d 253, 272; see People v. Scott (1992), 148 Ill. 2d 479, 554-55, 594 N.E.2d 217, 249.

In the present case, the trial court did not make a determination that the IPI instructions did not accurately state that law. By deviating from the language of the IPI instructions, the trial court violated the mandate of Rule 451(a).

It is well settled that failure to object to a jury instruction waives the issue. (People v. Booker (1992), 224 Ill. App. 3d 542, 555, 585 N.E.2d 1274, 1284.) Defendant argues failure to properly instruct the jury constitutes plain error because the issues instructions presented to the jury were erroneous and confusing. The plain error exception to the waiver rule permits a reviewing court to consider issues waived for the purposes of review when the evidence in a criminal case is closely balanced, or the error is so fundamental and of such magnitude that the accused was denied a fair trial. (Lucas, 151 Ill. 2d at 482, 603 N.E.2d at 469; 134 Ill. 2d R. 615(a).) Although defendant has alleged the instructions were erroneous and confusing, he has provided no argument in support of this contention, which itself results in waiver (134 Ill. 2d R. 341(c)(7)). Our review of the instructions given by the trial court indicates the instructions were not erroneous and confusing. On the contrary, they accurately state the law, and, although differing in format from IPI Criminal Nos. 7.01A and 7.02A (Supp. 1989), contained the same language employed in IPI Criminal Nos. 7.01A and 7.02A (Supp. 1989). Moreover, the evidence in the present case was not factually close. Rather, the evidence overwhelmingly indicated defendant, as the chief of security for the BGD, orchestrated and ordered the attack which resulted in the death of Superintendent Taylor. An error is harmless and not subject to plain error if the defendant has not been denied any substantial right. See Enoch, 122 Ill. 2d at 185-90, 522 N.E.2d 1129-31; People v. Pickett (1973), 54 Ill. 2d 280, 283, 296 N.E.2d 856, 858.

Although we agree the trial court erred in giving multiple instructions of the issue of first degree murder, we find defendant waived this issue by his failure to object at the time the instructions were given and in a post-trial motion. The instructions accurately advised the jury of the law and were not confusing, and the evidence of defendant’s guilt was overwhelming. There was no plain error.

VII. Multiple Convictions

Defendant alleges, and the State concedes, he was improperly convicted of conspiracy to commit first degree murder and solicitation to commit first degree murder in addition to first degree murder.

Under Illinois law, a defendant cannot be convicted of both the inchoate and principal offense. Conspiracy to commit murder and solicitation to commit murder are inchoate offenses. Where a defendant has been convicted of both the principal and inchoate offenses, the proper procedure is to vacate the conviction and sentences with respect to the inchoate offenses. See People v. Hill (1980), 78 Ill. 2d 465, 476, 401 N.E.2d 517, 523; People v. Crews (1989), 191 Ill. App. 3d 228, 234-35, 547 N.E.2d 580, 584-85; People v. Davidson (1987), 160 Ill. App. 3d 99,117, 514 N.E.2d 17, 29-30.

This issue should have properly been disposed of in the trial court. The obligation to vigorously represent a defendant does not wane after the defendant has been convicted by the jury. In the present case, the trial court stated it was uncomfortable sentencing defendant with respect to the inchoate convictions as well as the conviction for first degree murder. Although the trial court requested counsel to provide citation to authority, no authority was provided by either defense counsel or the State’s Attorney. Rather, defense counsel merely stated sentences for both the convictions for the inchoate offenses and the first degree murder were impermissible, while the State’s Attorney stated such sentences were permissible. Had either party provided the requested authority to the trial court, this matter would have been properly addressed.

We vacate defendant’s convictions and sentences with respect to the conspiracy to commit first degree murder and solicitation of first degree murder offenses.

VIII. Conclusion

For the foregoing reasons, defendant’s conviction of first degree murder is affirmed. Defendant’s convictions of conspiracy to commit first degree murder and solicitation of first degree murder are vacated.

Affirmed in part; vacated in part.

STEIGMANN, P.J., and McCULLOUGH, J., concur.


source: Caselaw Access Project

author: JUSTICE LUND

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEFAN A. MOORE, Defendant-Appellant.
    Fourth District
    No. 4 — 92—1005
    Opinion filed September 16, 1993.

      Daniel D. Yuhas and Arden J. Lang, 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 Beth McGann, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

Defendant Stefan Moore was charged in the circuit court of Champaign County with one count of aggravated criminal sexual abuse (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 16(c)(1)(i)) and three counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 14(b)(1)). The charges stemmed from acts allegedly committed by defendant upon his niece, L.M., with whose family he was living when the alleged incidents occurred.

Defendant was accused of placing his penis in L.M.’s vagina during the summer of 1990 or 1991 and placing it on her vagina during that same time period. He was also accused of placing his finger in L.M.’s vagina on January 30, 1992, and of intentionally fondling her vagina for his own sexual arousal on that date.

On September 15, 1992, the case proceeded to a jury trial in absentia. Prior to the trial, the court held a hearing under section 115— 10 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1991, ch. 38, par. 115 — 10) to determine whether certain statements by L.M. would be admissible at trial as an exception to the hearsay riile. At that hearing, the following testimony was given.

Tracy Jobe, a police officer and investigator for the City of Champaign, testified that she interviewed seven-year-old L.M. on February 1, 1992, at her home. Jobe has approximately six years’ experience interviewing children. She was accompanied by William Gordon, an investigator with the Illinois Department of Children and Family Services (DCFS). When asked what had happened with defendant, L.M. said that he had put his finger in her private part. She had been asleep in her bedroom and defendant came into her room. When asked to show where her private part was, L.M. pointed to her vaginal area. When she told defendant to stop, he did and left the room. When asked whether this had happened before, L.M. said it happened one to two years ago. In trying to establish a time frame, Jobe asked if it was during school or when school was out. L.M. remembered it happened during the time her brother was in summer school. In talking to L.M.’s parents, Jobe was able to establish when the incident happened. Jobe then asked what happened, and L.M. said they were in the living room watching television when defendant grabbed her hand and took her into her brother J.M.’s room, put her on the mattress, took her clothes off, took his pants and underpants off, and put his private part on her private part. L.M. said defendant stopped when he felt white goo coming out of him. Defendant then wiped L.M. and himself with a washcloth and left the room. L.M. told her brother about this and he was supposed to tell their stepmother, but he forgot.

Jobe testified L.M.’s demeanor during the interview was very-calm. Toward the middle of the interview she became restless, toying with her clothing, and appeared to be anxious to end the interview. Jobe further testified L.M. answered her questions in a direct manner and that she did not suggest any answers to L.M. The only time L.M. was inconsistent was when Jobe asked her how long the incident in 1990 or 1991 lasted. L.M. said one hour and then changed it to a minute.

William Gordon, a child welfare specialist for DCFS, testified he accompanied Jobe to the interview with L.M. At that time he was a child protective investigator for DCFS. He and Jobe used open-ended questions, and no answers were suggested to L.M. The only inconsistency was in estimating the length of time of the 1990 incident. When L.M. said the earlier incident lasted one hour, he pointed out that two comedy shows last one hour. She then realized how long one hour was and stated it lasted a minute.

Debbie Moore, stepmother of L.M. and J.M., testified that defendant lived with the family from February through August 1990, and from December 1991 to late January 1992. During the 1990 visit, defendant shared a bedroom with J.M. She and her husband both worked. One condition of defendant’s continued residence with them was that he would baby-sit for the children while the parents were at work. The morning of January 31, 1992, they were busy with breakfast and getting ready for school and day care, and she did not have an opportunity to talk to L.M. or J.M. Defendant was sleeping on the couch, where he usually slept. When she arrived home from work that evening, J.M. and L.M. were waiting for her. L.M. was sitting on the floor, looking downcast. J.M. told her that defendant had been in L.M.’s room and touched her, and that it had happened the night before. She did not ask L.M. any other questions, but told her she would talk to her father about it. It was apparent to her that L.M. was looking to J.M. to tell her what happened. When her husband and defendant arrived home at 3:30 a.m., she told him about it. He and defendant had been drinking, and he confronted defendant and a fight ensued. Police were called by neighbors because of the noise, and a female officer talked with L.M. The officers suggested that L.M. be examined by a doctor, which was done later that day. She told L.M. to simply tell Jobe and Gordon the truth; she never asked L.M. for details.

Moore testified that in 1990 her husband and defendant had a disagreement over rules for the children while defendant was staying with them. Defendant left something on the stove and it burned, engulfing the house in smoke. After that, they told defendant to leave.

Nine-year-old J.M. testified that the first incident L.M. relayed to him was when defendant took their clothes off and she was trying to get him off her but could not. (His testimony was confusing on this incident. The first time he was asked about it, it appeared he was describing the incident as related to him by L.M. However, when he again described the incident in his later testimony, he appeared to describe what he himself had seen.) He stated the next day L.M. told him what had happened and J.M. told her he had seen it happen. She begged him not to tell and he said he would let it pass, but, if it ever happened again and she did not tell their parents, he would. They both thought if they told the first time they would be in trouble. He testified he was in a hallway when he saw defendant and L.M. on the couch. They were facing away from him and could not see him. L.M. had her eyes closed and was trying to get defendant off her. L.M. told him defendant was on top of her and had his hands between her legs. She did not tell him that defendant had touched her with any other part of his body. The second time, L.M. told him that defendant had come into her room and was feeling her private parts. He told their stepmother when she was tucking them into bed.

With respect to the first incident occurring in 1990, the trial court ruled there was no statement by L.M. to J.M. The only testimony before the court was that L.M. had discussed the incident with J.M. and she begged him not to tell. The court ruled the State could elicit from J.M. the fact that L.M. begged him not to tell, as that would be proper to explain why J.M. did not report this incident earlier. However, the State was not allowed to elicit details of anything L.M. told J.M. the day following the incident.

As to the statement made to Moore on January 31, 1992, the court found there was no basis under section 115 — 10 of the Code to admit J.M.’s statement to Moore about what L.M. had told him. However, the court ruled the State could elicit testimony that J.M. had told Moore something about what he claimed L.M. had told him, in order to explain to the jury why Moore took the steps she did.

The court found L.M.’s statement to J.M. on January 31, 1992, about what had happened the day before to be admissible, based upon the following factors: (1) the statement was made less than 24 hours after the incident; (2) it was made to a confidant; (3) it contained a description of sexual conduct not normally familiar to a child unless exposed to it; (4) L.M. used terminology a child would be expected to use; (5) there was no apparent motive to accuse defendant falsely, and he was a family member which would have made it more difficult to report; and (6) L.M. expected to get into trouble but, despite this, made the statement.

The court ruled the statement made by L.M. to Officer Jobe concerning the events of January 30, 1992, was admissible, based upon the facts that (1) the time lapse was less than 48 hours, (2) no leading questions were asked, (3) L.M. used terminology consistent with her age, (4) she was discussing sexual conduct that a child her age would not be familiar with unless exposed to it, and (5) there was no apparent motive to lie.

The court found the statement made by L.M. to Officer Jobe concerning the alleged events of August 1990 admissible. The court found that although there was a much more significant time lapse than with the other statements, this was partially explained by J.M.’s testimony that L.M. begged him not to tell anyone what had happened because she thought she would get in trouble. The court did not consider the fact that J.M. said he saw the incident L.M. told him about. The court found reliability in the terminology used by L.M., the fact that she was reluctant to discuss it, and that she made an attempt to be accurate in terms of changing her mind about the length of time the incident lasted.

At the jury trial, L.M. testified that defendant baby-sat for her when she was five and six years of age. The first incident occurred when she was five. She and defendant were watching television, he took her into J.M.’s room, and he put his private into her private. “Green gooey stuff” came out of his private before he stopped, and he washed it off with a towel. The only person she told was J.M. Defendant put his finger in her private last year while she was sleeping, and he touched her inside her T-shirt. She told him to stop, but he kept doing it for a little while and then left. The next night she told J.M. about it, and they told their stepmother the next day. L.M. used anatomically correct dolls to show the jury what she meant by “private” part.

On cross-examination, L.M. testified that during the first incident her parents were gone and she did not know where J.M. was. She told J.M. what had happened when he was home later that evening. She does not remember whether she told J.M. not to tell their parents. She then admitted she told Jobe she had asked J.M. to tell her parents. On redirect, L.M. testified she and her brother decided to keep it a secret for awhile because she was scared. On re-cross-examination, she testified she did not know whether she had told J.M. to tell her stepmother about the incident with defendant in the bedroom.

Moore testified that defendant had stayed with her family from February to August 1990 and from late December 1991 to the end of January 1992. He took care of the children during the first visit while she and her husband worked, and he slept in the back bedroom. J.M. came to live with them in June 1990 and, from that time on, defendant shared a room with J.M. There may have been times when defendant would baby-sit overnight.

The second time defendant stayed with them, he slept on the couch in the living room. She began to notice that L.M. avoided being around defendant. Defendant stayed overnight with them on January 30, 1992, and slept on the living room couch. The next morning was very hectic with getting the children ready for school, the baby ready for day care, and getting breakfast for them. She did not speak to J.M. or L.M. alone that morning. At that time defendant was asleep on the couch, which was about eight feet from where they ate breakfast. She arrived home from work about 6:30 p.m. J.M. told her something L.M. had told him; she told her husband about it, and he confronted defendant. Police officers arrived and, at their suggestion, she took L.M. to a hospital. Prior to Jobe arriving at the house, she stressed to L.M. to simply tell the truth.

J.M. testified the reason he waited to tell his stepmother about what had happened to L.M. was that he thought they might get in trouble if they told right away.

Jobe testified that L.M. told her defendant had come into her room, woke her up, and put his finger in her private part. After she asked him to stop, he did and left. L.M. also told her that one to two years previously defendant had taken her clothes off, his clothes off, and put his private part on her private part. Jobe then testified to her conversation with L.M. as she had done at the section 115 — 10 hearing, including her description of L.M.’s demeanor during the interview.

Dr. Ricky Pionkowski testified that he is a medical doctor and works in the emergency room at Covenant Medical Center in Urbana. He has had experience with victims of sexual assault, including child victims. He examined L.M. on February 1, 1992, for signs of molestation. She told him that defendant had touched her in her private parts on two occasions, once with his finger and the other time with his private part. Upon examination, he noticed a green discharge coming from L.M.’s vagina, which is not normal in a child her age. There was a little redness around the opening to the vagina. He concluded she had an infection, which could have come from an adult finger being inserted in her vagina. His findings were consistent with what L.M. had told him, and he found nothing to lead him to disbelieve what she had told him.

On cross-examination, Pionkowski testified it is impossible to determine time of onset of an infection just by looking. Most infections take from 12 to 48 hours to develop a discharge. If it had been less than 12 hours, he would tend to disbelieve the infection could have been caused by a finger. It is possible that she had the infection for three days prior to his examining her. He also observed a small amount of feces which might have caused the infection. That would also be consistent with his findings.

On redirect examination, the doctor testified that L.M. told him her vaginal area was sore and that it is also possible she was not wiping herself thoroughly because of the soreness.

Dr. Ronald Deering, a pediatrician, testified he has had experience in examining child sex-abuse victims. He examined L.M. on February 6, 1992, and saw evidence of an old tear at the bottom of the hymenal ring. That would be consistent with trauma to that area occurring one to two years earlier, such as an adult penis partially penetrating that area.

On cross-examination, Deering stated the tear could also have been caused by other things and that it is possible it was not such a tear at all.

At the close of the State’s evidence, defendant moved for a directed verdict on all counts. The State moved to withdraw count I (aggravated criminal sexual abuse) and count IV (aggravated criminal sexual assault in that defendant placed his penis on L.M.’s vagina). The court allowed the State’s motion, finding the only evidence was of a finger and a penis penetrating L.M.’s vagina. The court denied the motion for a directed verdict as to counts II and III (both aggravated criminal sexual assault).

Over defendant’s objection, the court instructed the jury only on the offense of aggravated criminal sexual assault and refused to instruct on aggravated criminal sexual abuse, which defense counsel claimed was an included offense. Defendant was convicted on both counts, and the court entered judgment on the verdicts.

At the sentencing hearing, Bruce Freeman testified for the State in aggravation, over defense counsel’s objection. He was a licensed clinical social worker with the Department of Psychiatry at Christie Clinic. He had seen L.M. for some behavioral problems, possibly stemming from the sexual abuse. He had also been seeing J.M. for some behavior problems. His first formal session with J.M. was November 6, 1992. On that date, J.M. told him he had, before he moved to Champaign to live with his father and stepmother, witnessed physical abuse by his natural mother’s boyfriends toward her and that he had been the subject of that abuse several times. When Freeman asked J.M. whether he had been touched in a way that made him feel uncomfortable, J.M. hesitated and then said that he had been abused by defendant. This happened when he was six or seven years old at his paternal grandmother’s house. He was to sleep with defendant and, as he was falling asleep, defendant began to fondle him. Defendant asked him to roll over on his stomach and he then pulled J.M.’s nightshirt up over his head. Defendant put his penis in J.M.’s butt and began moving around. Defendant continued until J.M. felt something like water coming out of his butt and then defendant stopped. J.M. got up to go to the bathroom and while cleaning his butt, there was “gooky goo” coming out of it. It was whitish yellow, as when eggs and water are mixed together. J.M. reported that on two earlier occasions defendant had fondled J.M.’s penis. J.M. stated he did not tell anyone about these incidents. J.M. reported a great sense of shame for not telling about what had happened to him when his father and court personnel asked if he had ever been sexually abused. He seemed to worry that he would not be believed. He also was concerned that people would think he was competing with L.M. for attention. He was also fearful of changing his prior answer, and Freeman said J.M. wept while relating these incidents. He became even more upset when wondering whether his father would believe him.

In admitting the evidence, the court found it was sufficiently reliable for purposes of the sentencing hearing. Even though there was a considerable time lapse between the alleged incident and reporting it to Freeman, the court found this understandable, given the difficult nature of the topic and J.M.’s background of violence and powerlessness. The court also noted J.M. had described the incident in terms one would expect to hear from a child. It also noted the shame with which J.M. made the disclosure to Freeman, noting it was unlikely the child would cause himself such pain by telling a merely fanciful story.

The court found no factors in mitigation and, as aggravating factors, found the following: (1) defendant was on probation at the time of the offenses and had prior criminal convictions, one of which was for criminal sexual abuse; (2) the incidents occurred over a period of time and involved a calculated, premeditated single course of conduct over a substantial period of time; (3) defendant betrayed a defenseless and trusting child and other family members after they took him into their home; (4) defendant showed no remorse; (5) there appears to be little, if any, hope for defendant’s rehabilitation, based upon his prior probation sentences; and (6) the report by J.M. of sexual abuse perpetrated upon him by defendant, which the court indicated it believed. Defendant was sentenced to 12 years’ imprisonment for the charge stemming from the summer of 1990, and 18 years’ imprisonment for the charge based upon the incident on January 30, 1992. The court found this was a single course of conduct for purposes of section 5— 8 — 4(a) of the Unified Code of Corrections (Corrections Code) (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 8—4(a)) and ordered the sentences served consecutively.

Defendant first argues on appeal that the trial court erred in refusing to instruct the jury on the offense of aggravated criminal sexual abuse and in allowing the State to withdraw count I charging that offense. He maintains there was some evidence from which the jury could have concluded he was guilty of aggravated criminal sexual abuse in both incidents.

An included offense is one which is (1) established by proof of the same, or less than all the facts, or a less culpable mental state, or both, than that required to establish commission of the offense charged; or (2) consists of an attempt to commit the offense charged or an offense included therein. (Ill. Rev. Stat. 1991, ch. 38, par. 2 — 9.) A defendant may be entitled to have the jury instructed on a less serious offense that is included in the one with which he is charged. However, because a defendant’s instruction is appropriate only if evidence would enable the jury to convict him of the lesser offense and acquit him of the greater one, the evidence presented in a particular case might preclude the use of an instruction on a lesser offense. (People v. Bryant (1986), 113 Ill. 2d 497, 507, 499 N.E.2d 413, 417.) For an offense to be an included offense, it must not have any element not included in the greater offense, so that it is impossible to commit the greater offense without also committing the lesser offense. (People v. Gulley (1987), 162 Ill. App. 3d 545, 547, 515 N.E.2d 1309, 1310.) Very slight evidence upon a certain theory of the case justifies giving an instruction. People v. Creamer (1986), 143 Ill. App. 3d 64, 69, 492 N.E.2d 923, 927.

The difference between the offenses of aggravated criminal sexual assault and aggravated criminal sexual abuse lies in the defendant’s conduct. In the former offense, there must be 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 into the sex organ or anus of another person. (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 12(f).) In aggravated criminal sexual abuse, sexual conduct is the key element, which is defined as touching or fondling by an accused of the victim’s sexual organ, breast, or anus, or any part of the body of a child under 13 years of age, for purposes of sexual gratification of the accused or victim. (Ill. Rev. Stat. 1991, ch. 38, par. 12 — 12(e).) Defendant points out that although L.M. testified at trial that in 1990 defendant put his penis in her vagina, Jobe testified L.M. told her that defendant had put his penis on her vagina. He also believes there was evidence there may not have been penetration by defendant’s finger in the 1992 incident. However, the nature of this evidence is unclear.

At the jury instruction conference, defense counsel objected to the State’s tendered instructions Nos. 4 and 13. Instruction No. 4 stated defendant is charged with aggravated criminal sexual assault in the summer of 1990 and on January 30, 1992. Instruction No. 13 reiterated this information and instructed the jury concerning the verdict forms it would be receiving. In making his objection, defense counsel argued the jury should be instructed on aggravated criminal sexual abuse or criminal sexual abuse as included offenses. The court stated there was no evidence of other sexual conduct, so it was a situation in which defendant was either guilty of aggravated criminal sexual assault or nothing.

We note defense counsel did not tender instructions to the court on the offenses of aggravated criminal sexual abuse or criminal sexual abuse. At the hearing on defendant’s motion for a new trial, defense counsel stated his reason was that the court had already ruled there was no included offense under the facts of the case. It is well settled that a party cannot complain of a failure to give an instruction unless he or she tendered the instruction at trial. (See People v. Huckstead (1982), 91 Ill. 2d 536, 543, 440 N.E.2d 1248, 1251; People v. Berry (1984), 99 Ill. 2d 499, 503, 460 N.E.2d 742, 743.) We thus find that defendant has waived any error in the trial court’s failure to instruct on alleged included offenses.

Defendant next contends the trial court erred in allowing hearsay testimony about circumstances surrounding L.M.’s statements regarding elements of the offenses. He argues the court should not have allowed Moore to testify how J.M. told her about L.M.’s complaint or why he did not tell his parents what L.M. had told him, and it should not have permitted Jobe to testify about L.M.’s demeanor during her interview. In defendant’s view, this evidence merely served to buttress L.M.’s credibility, given her “late” reports of abuse, and went beyond limits established by section 115 — 10 of the Code.

We need not consider the merits of defendant’s arguments on this point, as we must find defendant has waived any error in the admission of the complained-of statements. Although he did raise this issue in a vague manner in his post-trial motion, in which he referred only to “the hearsay statements,” he failed to object to any of the testimony at trial. Both a trial objection and a written post-trial motion raising the issue are required to preserve error for appeal purposes. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130.) Nor are we willing to consider defendant’s arguments under the plain-error doctrine. That doctrine gives relief from the waiver rule only where the evidence is closely balanced or where the error affects the substantial rights of the defendant. (People v. Griffiths (1983), 112 Ill. App. 3d 322, 326, 445 N.E.2d 521, 526; People v. Pickett (1973), 54 Ill. 2d 280, 283, 296 N.E.2d 856, 858.) Here, the evidence was not closely balanced, nor has defendant pointed to any specific rights which were abridged by the admission of the statements.

Defendant next argues the trial court erred in imposing consecutive sentences. He contends that under the supreme court’s recent decision in People v. Bole (1993), 155 Ill. 2d 188, 613 N.E.2d 740, the two criminal acts of which he stands convicted did not constitute a single course of criminal conduct and consecutive sentences were not mandated by section 5 — 8—4(a) of the Corrections Code. We agree. That section provides 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 — 14 of the Criminal Code of 1961, in which event the court shall enter sentences to run consecutively.” (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 8—4(a).)

The trial court specifically found defendant’s criminal acts constituted a single course of conduct under this section and ordered the sentences to run consecutively. In Bole, defendant pleaded guilty to three counts of criminal sexual assault. (People v. Bole (1991), 223 Ill. App. 3d 247, 249, 585 N.E.2d 135, 137.) The offenses were committed against his 14-year-old stepdaughter on three separate days from February 22, 1989, to March 1, 1989. Finding that defendant’s actions constituted a single course of conduct for purposes of section 5 — 8— 4(a) of the Corrections Code, the trial court sentenced him to three consecutive terms of imprisonment. The appellate court vacated the sentences and remanded for resentencing, holding there was no single course of conduct. (Bole, 223 Ill. App. 3d at 260, 585 N.E.2d at 145.) The supreme court, in affirming the appellate court, acknowledged the offenses were part of a long-standing pattern of sexual abuse of defendant’s stepdaughter. (As noted by the dissenting opinion, the stepdaughter testified defendant had sexual relations with her over 100 times and that the abuse occurred several times a week when her mother was out of the house. (Bole, 155 Ill. 2d at 199-200, 613 N.E.2d at 746 (Heiple, J., dissenting).) However, the court held the offenses were not part of a single course of conduct and that consecutive sentences were not mandated. The court noted the offenses occurred on three separate days, with substantial interruptions of time between them. Bole, 155 Ill. 2d at 193-94, 613 N.E.2d at 743.

In contrast to Bole, approximately 1% years separated defendant’s two offenses in the present case. It is therefore readily apparent that applying the rationale of Bole to this case requires we vacate defendant’s sentences and remand to the trial court for re-sentencing. The State argues that regardless of whether consecutive sentences were mandated under the theory of a single course of conduct, the trial court had the discretion to impose consecutive sentences under section 5 — 8—4(a) of the Corrections Code. While this is true, it is clear from a review of the record that the trial judge believed consecutive sentences were indeed mandated under that section and he expressly ordered the sentences to run consecutively based upon this interpretation.

Defendant’s final argument on appeal is that the trial court erred in considering in aggravation testimony of the social worker as to statements made by J.M. regarding sexual abuse of him by defendant. Because of the likelihood that the State will again present this evidence at defendant’s sentencing hearing on remand, we will address this argument.

Defendant argues this evidence was unreliable because a significant gap existed between the occurrence of the alleged abuse and J.M.’s report of it, and because J.M. had many opportunities to report the abuse to his parents, court personnel, DCFS, and police investigators and did not do so. The State finds the evidence reliable and urges the trial court did not err in its consideration.

It is well settled that in determining an appropriate sentence the trial court is not required to consider only information admissible at trial. The rules of evidence to be applied at trial regarding defendant’s guilt or innocence do not apply in a sentencing hearing. The court may search anywhere within reasonable bounds for other facts which may serve to aggravate or mitigate the offense. It may inquire into a defendant’s general moral character, habits, social environment, abnormal tendencies, age, natural inclination or aversion to commit crime, and stimuli motivating his conduct, in addition to his family life, occupation, and criminal record. (People v. Adkins (1968), 41 Ill. 2d 297, 301, 242 N.E.2d 258, 260-61.) Thus, criminal conduct not resulting in conviction may be considered. See People v. Kelley (1970), 44 Ill. 2d 315, 255 N.E.2d 390; People v. Poll (1980), 81 Ill. 2d 286, 408 N.E.2d 212; People v. LaPointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344.

In ruling evidence of defendant’s alleged abuse of J.M. admissible, the trial court made the following observations:

“I believe that the evidence offered is sufficiently reliable to admit it for purposes of this hearing and the limited purposes of aggravation. I note that while there has been a substantial delay between the time of the alleged occurrence and his reporting it to Mr. Freeman, that delay is understandable!,] given the very difficult topic that the young man was discussing with Mr. Freeman, given his own background of having observed so much violence in his home and feeling powerless. I also find it significant that the young man described this occurrence in terms that one would expect to hear a child describing such conduct as opposed to terms that one would expect to hear from a more sophisticated or mature individual. I also note the apparently marked shame and regret with which the child did make this disclosure to Mr. Freeman, and it would seem to suggest that his motivation was not to disclose as opposed to [to] disclose and difficult to imagine he would impose this kind of pain on himself for purposes of pursuing some fanciful story. So I believe that given the standard that applies at a sentencing hearing, that evidence is sufficiently reliable. The defense’s objection is overruled.”

Defendant bases his argument in part on his belief that J.M.’s testimony at the section 115 — 10 hearing was not believable. At that hearing, with regard to the 1990 incident, J.M. testified he witnessed the occurrence, while L.M. testified at trial that she was alone with defendant at the time of the incident. We note there was some confusion created by J.M.’s testimony, and the trial court acknowledged it was unsure whether J.M. was describing what L.M. had told him or what he himself had witnessed. For that reason, the court ruled there was no statement by L.M. to J.M., and the State was prohibited from eliciting details of any such statement. It was merely allowed to elicit from J.M. that L.M. had begged him not to tell their parents about the incident. Defendant also points out that J.M. had lived in an abusive situation prior to living with his father and stepmother. Defendant also suggests that (1) it is possible J.M. had either been victimized or witnessed abuse in his first home, (2) he could have been “extrapolating” from stories he had heard in the past about defendant’s abuse of L.M., (3) the trial court had no way to judge J.M.’s level of sexual sophistication because he did not personally testify at the sentencing hearing, and (4) J.M.’s telling his story just prior to defendant’s sentencing could be considered a play for attention. Defendant also complains about the hearsay nature of the evidence presented. He argues he should have had the opportunity to cross-examine J.M.

The most important factors in determining whether evidence may be considered at a sentencing hearing is that it be both relevant and reliable. (People v. Jackson (1992), 149 Ill. 2d 540, 549, 599 N.E.2d 926, 930, cert. denied (1993),_U.S._, 122 L. Ed. 2d 786, 113 S. Ct. 1416; see also People v. Meeks (1980), 81 Ill. 2d 524, 535, 411 N.E.2d 9, 15.) Admissibility of such evidence lies within the sound discretion of the trial court. (People v. Lyles (1985), 106 Ill. 2d 373, 414, 478 N.E.2d 291, 309.) Thus, hearsay evidence, while not generally admissible at trial, may be considered by the trial court at a sentencing hearing. (See People v. Monk (1988), 174 Ill. App. 3d 528, 539, 528 N.E.2d 1063, 1070; People v. Ramsey (1975), 24 Ill. App. 3d 1038, 1041, 322 N.E.2d 547, 549; People v. Schleyhahn (1972), 4 Ill. App. 3d 591, 597, 281 N.E.2d 409, 414; People v. Perez (1985), 108 Ill. 2d 70, 86, 483 N.E.2d 250, 258.) A hearsay objection goes to the weight, not the admissibility, of the evidence. People v. Tigner (1990), 194 Ill. App. 3d 600, 607, 551 N.E.2d 304, 308, cert. denied (1990), 498 U.S. 901, 112 L. Ed. 2d 218, 111 S. Ct. 261.

Defendant objects to the hearsay evidence on the ground that J.M.’s testimony at the section 115 — 10 hearing was not reliable. However, that conclusion does not necessarily follow from the fact that the trial court refused to allow testimony at trial concerning L.M.’s statement to J.M. about the 1990 incident. The court’s rationale for this ruling was not that J.M.’s testimony was not reliable, but rather that it was unsure just what L.M. had said to J.M. about the incident. It is clear that J.M. witnessed a sexual assault on L.M. by defendant. It is simply not certain whether that incident is the same one relayed to J.M. by his sister. We also find no significance (except that recognized by the trial judge) in the fact that J.M. had previously lived in an abusive situation with his natural mother. In addition, there is no evidence that J.M. may have been “extrapolating” from stories he heard in the past about defendant’s abuse of L.M.

There is no question that the hearsay testimony to which defendant objects was relevant. The only question is its reliability. The social worker testified as to the circumstances in which J.M. told of defendant’s alleged sexually abusive conduct. We note the child did not volunteer this information, but only responded to a specific question from the social worker as to whether he had ever been touched in a way that made him feel uncomfortable. It is also significant that J.M. had a difficult time revealing what had happened to him, and that he cried and felt ashamed and guilty he had not told his father and court personnel about the incident when he had the opportunity. J.M.’s reasons for not telling were reasonable — he feared he would not be believed, and he was concerned people would think he was competing with L.M. for attention. He also feared people would be angry with him if he changed his answer. He became more upset when wondering whether his father would believe him. In addition, as the trial court noted, J.M. described the incident in terms one would expect to be used by a child his age. Given these factors, we do not find the trial court’s conclusion this evidence was reliable to be clearly erroneous.

For the reasons stated, defendant’s convictions are affirmed. The sentences are vacated and the cause remanded to the trial court for resentencing.

Affirmed in part; vacated in part and remanded.

KNECHT and GREEN, JJ., concur.