author: JUSTICE McLAREN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD BERQUIST et al., Defendants-Appellants.
    Second District
    Nos. 2—91—0970 through 2—91—0989 cons.
    Opinion filed January 28, 1993.
    Carl F. Schroeder, Ltd., of Wheaton (Carl F. Schroeder, of counsel), Darrell Dunham, of Murphysboro, and Duane D. Young, of Heckenkamp, Simhauser & LaBarre, P.C., of Springfield, for appellants.

      James E. Ryan, State’s Attorney, of Wheaton (William L. Browers, John X. Breslin, and Jay Paul Hoffmann, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

Richard Berquist, defendant, and 19 other individuals were arrested for criminal trespass to real property at the Concord West Medical Center (Concord West) in Westmont, Illinois. (Ill. Rev. Stat. 1991, ch. 38, par. 21—3(a).) The arrested persons were divided into two groups for trial, and in both instances the jury found defendants guilty of criminal trespass to real property. Defendants appeal from the juries’ verdicts and the court’s judgments thereon. Berquist’s case was consolidated with the 19 other similar cases for appeal. The sole issue concerns the defense of necessity. For the following reasons, we affirm.

Concord West Medical Center is a privately run health-care fácil-' ity which performs reproductive-related services and surgeries, including abortion up to 12 weeks gestation. In the morning hours of January 18, 1991, defendants arrived at Concord West carrying picket signs. Approximately 10 people entered the facility, went past the reception desk, and sat on the floor of a hallway leading to the operating rooms while reading Bibles and reciting prayers. Those that remained outside the building sat on the front steps and blocked the entrance.

Officer Larry Harrison, a police officer for the Village of Westmont and security guard for Concord West, advised the 10 persons sitting inside the clinic that they were trespassing and would be placed under arrest if they did not vacate the premises. Since the protesters refused to leave the facility, Officer Harrison and Sergeant Randall Sticha, also of the Westmont police, placed each of the 10 persons under arrest and carried them to a squad car to be transported to the police station.

During this time, Sergeant Robert B. Smith, also of the Westmont police, was patrolling the area and observed several persons blocking the entrance to Concord West. Sergeant Smith advised these persons to leave the premises because they were trespassing on private property. Since they refused to leave the premises, Smith placed them under arrest and assisted in physically placing them into the squad cars.

On January 23, 1991, defendants were charged with the offense of criminal trespass to real property for protesting at Concord West. Prior to trial, defendants notified the State of their intent to plead necessity as an affirmative defense. The State responded by filing a motion in limine to preclude defendants from presenting any evidence offered in support of their affirmative defense. The motion was granted. On appeal, defendants contend that the court erred in granting the State’s motion in limine which barred them from presenting any evidence in support of the defense of necessity.

Motions in limine are encouraged in criminal cases to exclude collateral or extraneous matters. (People v. Watkins (1991), 220 Ill. App. 3d 201, 211.) However, this type of motion should be used with caution so that it does not unduly restrict the opposing party’s case or deprive a defendant of a legally viable defense. (People v. Henderson (1991), 223 Ill. App. 3d 131, 135.) When an affirmative defense is raised, which is unavailable as a matter of law, the trial court may properly grant a motion in limine prohibiting the defendant from introducing evidence in support of that defense. (People v. Downey (1987), 162 Ill. App. 3d 322, 334.) A reviewing court will not reverse the trial court’s decision to grant a motion in limine absent an abuse of discretion. People v. Salazar (1991), 211 Ill. App. 3d 899, 910; Downey, 162 Ill. App. 3d at 334.

The defense of necessity is valid, as a matter of law, if the defendant is without blame in occasioning or developing the situation. Additionally, the defendant must reasonably believe that his conduct, which would otherwise be an offense, was necessary to avoid a public or private injury greater than the injury which might have reasonably resulted from his own conduct. (Ill. Rev. Stat. 1991, ch. 38, par. 7—13; People v. Janik (1989), 127 Ill. 2d 390, 399.) Necessity involves a “choice between two admitted evils where other optional courses of action are unavailable [citations], and the conduct chosen *** promote[s] some higher value than the value of literal compliance with the law.” Janik, 127 Ill. 2d at 399.

In this case, defendants contend that they were entitled to raise the defense of necessity by presenting evidence that their conduct was necessary to prevent a greater injury, that being the termination of fetuses via abortion. As an offer of proof in support of their assertion that life begins at conception and that their trespass was necessary to prevent the “murder of unborn children,” defendants refer to the following language of section 1 of the Illinois Abortion Law of 1975:

“Without in any way restricting the right of privacy of a woman or the right of a woman to an abortion under those decisions [of the United States Supreme Court of January 22, 1973], the General Assembly of the State of Illinois do [sic] solemnly declare and find in reaffirmation of the longstanding policy of this State, that the unborn child is a human being from the time of conception and is, therefore, a legal person for purposes of the unborn child’s right to life and is entitled to the right to life from conception under the laws and Constitution of this State. Further, the General Assembly finds and declares that longstanding policy of this State to protect the right to life of the unborn child from conception by prohibiting abortion unless necessary to preserve the life of the mother is impermissible only because of the decisions of the United States Supreme Court and that, therefore, if those decisions of the United States Supreme Court are ever reversed or modified or the United States Constitution is amended to allow protection of the unborn then the former policy of this State to prohibit abortions unless necessary for the preservation of the mother’s life shall be reinstated.” (Ill. Rev. Stat. 1991, ch. 38, par. 81—21.)

The primary witness for defendants at the hearing on the State’s motion in limine was Dr. Eugene Diamond. Dr. Diamond’s testimony concerned the development of the fetus at various gestational periods and the impact of different methods of abortion on the fetus.

In granting the State’s motion in limine, the trial court relied on People v. Krizka (1980), 92 Ill. App. 3d 288, People v. Stiso (1981), 93 Ill. App. 3d 101, and People v. Smith (1987), 161 Ill. App. 3d 213, in finding, as a matter of law, that necessity is not a valid defense to the criminal trespass of a facility which performs abortions. Defendants agree that the above-cited cases indicate that the State of Illinois did not recognize the defense of necessity as a valid defense to the criminal trespass of an abortion clinic after Roe v. Wade (1973), 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705. The thrust of defendants’ contention on appeal is that the decisions of the United States Supreme Court in Webster v. Reproductive Health Services (1989), 492 U.S. 490, 106 L. Ed. 2d 410, 109 S. Ct. 3040, and Planned Parenthood v. Casey (1992), 505 U.S. _, 120 L. Ed. 2d 674, 112 S. Ct. 2791, eroded the holding of Roe v. Wade, which did not reach the question of when life begins. Defendants contend that the holdings of Webster and Casey, coupled with the legislature’s declaration that the State of Illinois recognizes the unborn fetus as a human being from the time of conception and pronouncement that abortion will be illegal in Illinois if Roe v. Wade is ever reversed or modified, illustrate that their trespass was necessary to prevent the greater evil of “child killing.”

In Roe v. Wade, the United States Supreme Court held that the due process clause of the fourteenth amendment (U.S. Const., amend. XIV) protects the right to privacy against State action and encompasses a woman’s qualified right to terminate her pregnancy via abortion. (Roe, 410 U.S. at 154, 35 L. Ed. 2d at 177, 93 S. Ct. at 727.) This decision struck down as unconstitutional a Texas statute which criminalized abortion unless the procedure was necessary to save the life of the mother. (Roe, 410 U.S. at 164, 35 L. Ed. 2d at 183, 93 S. Ct. at 732.) Although Roe determined that a State cannot override the woman’s right to privacy concerning her pregnancy, it did not give a woman the right to an abortion on demand. Instead, the Supreme Court determined that the State has a legitimate interest in protecting both the pregnant woman’s health and the potentiality of human life. Each interest grows and reaches a compelling point after the first trimester of pregnancy. (Roe, 410 U.S. at 162-63, 35 L. Ed. 2d at 182, 93 S. Ct. at 731.) The Court further determined that the State has a compelling interest in the mother’s health after the first trimester of pregnancy, and a compelling interest in the life of the fetus at the point of viability, or the point at which the fetus is able to live outside the mother’s womb. Thus, under Roe, a State may regulate the abortion procedure to the extent the regulation is reasonably necessary to protect maternal health after the first trimester. During the first trimester, the decision to abort must be left to the physician in consultation with his patient, without regulation by the State. After the point of viability, or the third trimester, a State may prohibit abortion except when necessary to preserve the health of the mother. Roe, 410 U.S. at 163-64, 35 L. Ed. 2d at 183, 93 S. Ct. at 731-32.

After Webster, the preamble of a Missouri abortion statute, similar to the preamble of the Illinois Abortion Law (Ill. Rev. Stat. 1991, ch. 38, par. 81—21), remained valid as a majority of the Court declined to address its constitutionality. (Webster, 492 U.S. at 507, 106 L. Ed. 2d at 428, 109 S. Ct. at 3050 (Rehnquist, C.J., joined by White, O’Con-nor, Scalia, and Kennedy, JJ.).) A majority of the Court emphasized that Roe v. Wade “ ‘implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion.’ ” (Webster, 492 U.S. at 506, 106 L. Ed. 2d at 427-28, 109 S. Ct. at 3050, quoting Maher v. Roe (1977), 432 U.S. 464, 474, 53 L. Ed. 2d 484, 494, 97 S. Ct. 2376, 2382-83.) The Court further stated in dictum that the language of Missouri’s preamble, declaring that “[t]he life of each human being begins at conception” and that “[ujnborn children have protectable interests in life, health, and well-being” (Mo. Rev. Stat. §§1.205.1(1), (2) (1986)) could be interpreted as offering protections to unborn children in tort and probate law, and nothing more. Webster, 492 U.S. at 506, 106 L. Ed. 2d at 428, 109 S. Ct. at 3050.

In upholding the portion of the Missouri statute which restricted public employees from using public facilities to perform nontherapeutic abortions, a majority of the Webster Court reiterated its position that a State may favor childbirth over abortion. Utilizing the analysis of Harris v. McRae (1980), 448 U.S. 297, 65 L. Ed. 2d 784, 100 S. Ct. 2671, Maher v. Roe (1977), 432 U.S. 464, 53 L. Ed. 2d 484, 97 S. Ct. 2376, and Poelker v. Doe (1977), 432 U.S. 519, 53 L. Ed. 2d 528, 97 S. Ct. 2391, a majority of the Webster Court found that “[n]othing in the Constitution requires States to enter or remain in the business of performing abortions.” (Webster, 492 U.S. at 510-11, 106 L. Ed. 2d at 430-31, 109 S. Ct. at 3052-53 (Rehnquist, C.J., joined by White, O’Connor, Scalia, and Kennedy, JJ.).) According to the Webster Court, “Missouri’s refusal to allow public employees to perform abortions in public hospitals leaves a pregnant woman with the same choices as if the State had chosen not to operate any public hospitals at all.” Webster, 492 U.S. at 510, 106 L. Ed. 2d at 430, 109 S. Ct. at 3052.

The greatest controversy in Webster concerned a portion of the Missouri statute which requires a physician to perform tests to determine viability prior to performing abortions on women 20 weeks or more gestational age. Although a majority of the justices voted to uphold this provision as constitutional, they disagree on the proper rationale. The plurality voted to uphold this provision on the basis that it permissibly farthers the State’s interest in protecting potential human life. (Webster, 492 U.S. at 519, 106 L. Ed. 2d at 436, 109 S. Ct. at 3057 (Rehnquist, C.J., joined by White and Kennedy, JJ.).) In dictum, the plurality inferred that the rigid trimester framework of Roe v. Wade should be abandoned by labeling the analysis “ ‘unsound in principle and unworkable in practice,’ ” making constitutional law in the area of abortion regulation a “virtual Procrustean bed.” (Webster, 492 U.S. at 519, 106 L. Ed. 2d at 435-36, 109 S. Ct. at 3056, quoting Garcia v. San Antonio Metropolitan Transit Authority (1985), 469 U.S. 528, 546, 83 L. Ed. 2d 1016, 1031, 105 S. Ct. 1005, 1015.) However, the three-member plurality emphasized that it was not necessary to revisit the holding of Roe, which involved a criminal abortion statute. (Webster, 492 U.S. at 521, 106 L. Ed. 2d at 438, 109 S. Ct. at 3058.) Thus, after Webster, the holding of Roe was left intact, as a majority of the Court decided to reaffirm or declined to address the constitutional validity of the central holding of Roe. See Webster, 492 U.S. at 521, 106 L. Ed. 2d at 438, 109 S. Ct. at 3058 (Rehnquist, C.J., joined by White and Kennedy, JJ.); 492 U.S. at 525, 106 L. Ed. 2d at 440-41, 109 S. Ct. at 3060-61 (O’Connor, J., concurring in part and concurring in judgment); 492 U.S. at 539-52, 560-63, 106 L. Ed. 2d at 449-58, 463-65, 109 S. Ct. at 3067-75, 3079-81 (Blackmun, J., joined by Brennan and Marshall, JJ., concurring in part and dissenting in part); and 492 U.S. at 561-63, 106 L. Ed. 2d at 464-65, 109 S. Ct. at 3079-81 (Stevens, J., concurring in part and dissenting in part).

In Casey (505 U.S. at _, 120 L. Ed. 2d at 693, 112 S. Ct. at 2803), the Supreme Court stated that “[liberty finds no refuge in a jurisprudence of doubt” and ventured to delineate the boundaries of liberty set forth by Roe and Webster. A three-member plurality abandoned Roe’s trimester framework as an unnecessary and “rigid prohibition on all previability regulation aimed at the protection of fetal life.” (Casey, 505 U.S. at _, 120 L. Ed. 2d at 712, 112 S. Ct. at 2818.) Because of the substantial State interest in potential life throughout pregnancy and a woman’s constitutionally protected liberty as recognized by Roe, the plurality determined that State regulation of abortion would be invalidated if it imposes an undue burden on the essential right guaranteed by Roe. According to the plurality, an undue burden exists if the State regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus. (Casey, 505 U.S. at _, 120 L. Ed. 2d at 714-15, 112 S. Ct. at 2820.) Nevertheless, the three-member plurality, joined by Justices Stevens and Blackmun to form the majority, reaffirmed the essential holding of Roe, recognizing (1) the woman’s right to choose to have an abortion before the point of viability without undue interference from the State; (2) the State’s power to restrict abortion after fetal viability if the law contains exceptions for pregnancies which endanger a woman’s life or health; and (3) the State’s legitimate interest from the time of conception to protect the health of the woman and the life of the unborn fetus. Casey, 505 U.S. at _, 120 L. Ed. 2d at 694, 112 S. Ct. at 2804.

Although the justices disagree on the appropriate standard to be employed in assessing the constitutionality of State abortion statutes, after both Webster and Casey, a majority of the Supreme Court agrees that the central holding of Roe, which allows a woman to make the ultimate decision to terminate her pregnancy before viability, has not been altered. (Casey, 505 U.S. at _, 120 L. Ed. 2d at 694, 112 S. Ct. at 2804.) A majority of the Supreme Court agrees that “[w]henever it may occur, the attainment of viability may continue to serve as the critical fact, just as it has done since Roe was decided; which is to say that no change in Roe’s factual underpinning has left its central holding obsolete, and none supports an argument for overruling it.” Casey, 505 U.S. at _, 120 L. Ed. 2d at 703-04, 112 S. Ct. at 2811-12.

The precise point of viability has not been determined as a matter of law. The Supreme Court has stated that “[t]he time when viability is achieved may vary with each pregnancy, and the determination of whether a particular fetus is viable is, and must be, a matter for the judgment of the responsible attending physician.” (Planned Parenthood v. Danforth (1976), 428 U.S. 52, 64, 49 L. Ed. 2d 788, 802, 96 S. Ct. 2831, 2839; see also Colautti v. Franklin (1979), 439 U.S. 379, 388-89, 58 L. Ed. 2d 596, 605, 99 S. Ct. 675, 681-82.) In Webster, however, the plurality and Justice O’Connor interpreted a statute requiring physicians to perform tests to determine the point of viability prior to performing an abortion on a woman with an estimated gestational age of greater than 20 weeks as creating a presumption of viability at 20 weeks. (Webster, 492 U.S. at 515, 106 L. Ed. 2d at 434, 109 S. Ct. at 3055; 492 U.S. at 526, 106 L. Ed. 2d at 441, 109 S. Ct. at 3061 (O’Connor, J., concurring in part and concurring in the judgment).) In support of preserving the viability standard of Roe, Justice Blackmun, joined by Justices Brennan and Marshall, states in his partial concurrence and partial dissent from Webster that viability occurs no earlier than 23 weeks. (Webster, 492 U.S. at 553-54, 106 L. Ed. 2d. at 459, 109 S. Ct. at 3075.) Blackmun opined that prior to that time the crucial organs are not sufficiently mature to provide the mutually sustaining functions that are prerequisite to extrauterine survival. There is no existing technology, nor does the medical community foresee future technological advancements, which bridge the developmental gap between the three-day embryo culture and the 24th week of gestation. Webster, 492 U.S. at 553-54 n.9, 106 L. Ed. 2d at 459 n.9, 109 S. Ct. at 3075-76 n.9.

Defendants in this case do not contend that Concord West performs abortions after the point of viability. They agree that abortions at Concord West are confined to the period up to 12 weeks gestation. There is neither evidence nor argument that abortions are being performed at Concord West after the point of viability. Therefore, we determine that the activities performed at Concord West are constitutionally protected legal abortions, as announced in Roe, and reaffirmed in Webster and Casey.

The Illinois Appellate Court previously held that the defense of necessity is not applicable to the criminal trespass of an abortion clinic under Roe v. Wade. (See Krizka, 92 Ill. App. 3d at 290-91; Stiso, 93 Ill. App. 3d at 103-04; Smith, 161 Ill. App. 3d at 215-17.) More recently, the Appellate Court, Third District, held that the defense remains unavailable after both Webster and Casey. (People v. Smith (1992), 237 Ill. App. 3d 901, 910.) Because the present law allows abortion prior to the point of viability, subject to State regulation, we find that the rationale of the courts in Krizka, Stiso, and Smith remains applicable concerning the availability of the defense of necessity to the criminal trespass of an abortion clinic. As stated in Smith (161 Ill. App. 3d at 215), the defense of necessity is not available to trespasses that interfere with constitutional rights. The abortions performed at Concord West were confined to the period up to 12 weeks gestation. No evidence was presented that the fetus is viable at this point. Thus, the abortions performed at Concord West were constitutionally protected. Consequently, the defense of necessity is unavailable to defendants as a matter of law. Accordingly, we find the trial court’s decision to grant the State’s motion in limine, which barred defendants from introducing evidence in support of the necessity defense, was not an abuse of discretion.

Defendants also contend that the trial court violated their sixth amendment right to a trial by jury (U.S. Const., amend. VI) and due process clause of the fourteenth amendment (U.S. Const., amend. XIV). By granting the State’s motion in limine and precluding the defense from submitting the defense of necessity to the jury, defendants contend that the State unconstitutionally avoided the burden to prove its case beyond a reasonable doubt.

In their brief, defendants rely heavily on Cheek v. United States (1991), 498 U.S. 197, 112 L. Ed. 2d 617, 111 S. Ct. 604, where the Supreme Court held that a good-faith misunderstanding of the law or a good-faith belief that one is not violating the law negates the mental state of willfulness whether the claimed belief or misunderstanding is objectively reasonable. Cheek mandated that the jury be permitted to hear evidence of the defendant’s subjective understanding of the Federal tax statute for the violation of which he was prosecuted because “forbidding the jury to consider evidence that might negate willfulness would raise a serious question under the Sixth Amendment’s jury trial provision.” (Cheek, 498 U.S. at 203, 112 L. Ed. 2d at 630-31, 111 S. Ct. at 611.) On this basis, defendants contend that trespass is a specific intent crime and their subjective belief that trespass was necessary to prevent human life from destruction via abortion is germane to the question of whether they intentionally trespassed.

Defendants were convicted of violating the following criminal trespass statute:

“Whoever enters upon the land or a building, other than a residence, or any part thereof of another, after receiving, prior to such entry, notice from the owner or occupant that such entry is forbidden, or remains upon the land or in a building, other than a residence, of another after receiving notice from the owner or occupant to depart, commits a Class C misdemeanor.” (Ill. Rev. Stat. 1991, ch. 38, par. 21—3(a).)

Unlike the statute which the defendant in Cheek was prosecuted for violating, the criminal trespass statute which defendants were convicted of violating does not require the mental state of wilfulness. Rather, it requires knowledge that one has illegally entered or remained on private property. In the present case, defendants illegally entered and remained on Concord West property after receiving notification that they were trespassing. Moreover, defendants admitted that they were trespassing, but asserted that a trespass was necessary to prevent the termination of fetuses via abortion. Cheek is not applicable to the facts of this case as defendants did not have a good-faith misunderstanding of the law of trespass. Any misunderstanding related to the applicability of the affirmative defense of necessity based upon the Supreme Court cases of Webster and Casey.

A defendant is entitled to an instruction “as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor.” (Mathews v. United States (1988), 485 U.S. 58, 63, 99 L. Ed. 2d 54, 61, 108 S. Ct. 883, 887.) The defendant is entitled to the benefit of any defense shown by the entire evidence (Janik, 127 Ill. 2d at 398), and even the slightest evidence introduced in support of the defendant’s affirmative defense warrants an instruction. (People v. Everette (1990), 141 Ill. 2d 147, 156; see also Ill. Rev. Stat. 1991, ch. 38, par. 3—2(a) (the defense must present “some evidence” in support of its affirmative defense).) However, an instruction is not warranted if the evidence before the trial court is so clear and convincing that the court finds the affirmative defense is unavailable as a matter of law. People v. Larry (1986), 144 Ill. App. 3d 669, 676.

We previously determined that the defense of necessity was not available to defendants as a matter of law. Therefore, no denial of due process occurred when the trial court granted the State’s motion in limine and excluded all evidence in support of the defense of necessity. See Krizka, 92 Ill. App. 3d at 291 (no denial of due process by the exclusion of evidence that life begins at conception).

Subsequent to oral argument in this case, the United States Supreme Court filed an opinion in Bray v. Alexandria Women’s Health Clinic (1993), 506 U.S _, 122 L. Ed. 2d 34, 113 S. Ct. 753, addressing the issue of whether the Civil Rights Act of 1871 (42 U.S.C. §1985(3) (1988)) provides a Federal cause of action against persons obstructing access to abortion clinics. We have reviewed this decision, and it does not alter our opinion in this case.

For the foregoing reasons, we affirm the judgments of the circuit court of Du Page County.

Affirmed.

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


source: Caselaw Access Project

author: JUSTICE COOK

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES PAUL GLASS, Defendant-Appellant.
    Fourth District
    No. 4—91—0908
    Opinion filed December 28, 1992.

      Daniel D. Yuhas and Jeffrey D. Foust, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Norbert J. Goetten, Robert J. Biderman, and James Majors, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE COOK

delivered the opinion of the court:

After a jury trial, defendant James Glass was convicted of three counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12—14(b)(1)) and one count of aggravated criminal sexual abuse (Ill. Rev. Stat. 1989, ch. 38, par. 12—16(c)(1)). Defendant was sentenced to three consecutive terms of 25 years of imprisonment for the aggravated criminal sexual assault charges and a concurrent term of seven years of imprisonment for aggravated criminal sexual abuse. Defendant appeals his convictions and sentences. We affirm.

On January 30, 1991, defendant was charged with three counts of aggravated criminal sexual assault and two counts of aggravated criminal sexual abuse of his 10-year-old next-door neighbor, E.C. On August 13, 1991, the court held a hearing pursuant to section 115 — 10 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1991, ch. 38, par. 115—10) to determine the reliability of statements made by the victim, E.C., to Bloomington police officer Mike Jordan. Jordan testified that on January 24, 1991, he met with E.C. at the Bloomington police department along with Lisa Piper from the Department of Children and Family Services (DCFS). Jordan said E.C., who was 10 years old at that time, told him that defendant had performed sexual acts with her. E.C. described in detail a few of the incidents and said they mostly occurred in defendant’s car or van out in the country except for one occasion which took place in defendant’s bedroom in Bloomington. Jordan compiled a typed statement of E.C.’s remarks and had E.C. read the statement over for clarity and to make corrections. The court admitted the statement into evidence as People’s exhibit No. 1.

At trial, Jordan testified to his conversations with E.C. on January 24 and January 31 during which he compiled the typed statements of her comments. E.C. told Jordan the first incident happened during the summer of 1990 when she accompanied defendant to the Furrows store. After defendant finished purchasing hardware at Furrows, he drove out into the country and put his hand down E.C.’s shirt and felt her breasts. He then put his hand down her pants and felt her vagina. The second incident E.C. described to Jordan was when she and her best friend, M.C., went into the country with defendant in his van. Defendant gave each of them money for hugs and kisses. The third incident E.C. described to Jordan occurred the day before Christmas eve in 1990 when defendant asked E.C. to come over to his house next door and see his waterbed. When E.C. complied and sat on his bed, defendant removed her pants, pulled up her shirt and began licking her breasts and vagina. E.C. stated that defendant then had her stimulate his penis and testicles. E.C. described to Jordan in detail how defendant had her perform oral sex on him to the point of ejaculation.

Jordan attested to the fact that E.C.’s signature was on the statement and that she had read it over and circled the misspelled words. Jordan said he proceeded to defendant’s residence on January 30, 1991, and arrested him shortly thereafter. Jordan could not swear all of the alleged incidents of sexual abuse happened within the borders of McLean County since E.C. could not pinpoint the locations except for the incident in defendant’s bedroom. Jordan stated he believed the incident after the trip to Furrows occurred in McLean County because E.C. stated that when they got back close to town and traffic started to get heavy, defendant would stop fondling her.

E.C. testified she was bom March 26, 1980, and moved next door to defendant in Bloomington on March 11, 1990. Defendant began spending a lot of time with E.C.’s family soon after they moved in. E.C. would often go places with defendant by herself and he would buy her toys and clothes. E.C. said that defendant touched her “in the wrong places,” including her “potty,” which she indicated was the area between her legs. E.C. said she did not remember where it happened. She then said she did not remember anything about the first time it happened and did not recall telling Jordan about these incidents in the typed statement. After E.C. was allowed to read her statement to refresh her memory, she said she still did not remember it. E.C. admitted she was scared to tell what happened and did not want to talk about it. She then recalled one time when defendant took her to the State fair. She said defendant had a smile on his face and she “knew he wanted to do sex with me” because he smiled and winked. She said defendant kissed her, did things to her “potty” and her “boobs.” She said this occurred in defendant’s van during the summer of 1990 in a parking lot across from the State fair.

E.C. also described the incident where defendant asked her to see his waterbed. She said when she went inside his bedroom, defendant shut the door and pulled down her pants and underwear. Defendant took his pants off and proceeded to touch, kiss, and lick E.C.’s vagina and breasts. E.C. described how defendant rubbed his penis on her vagina but said defendant did not put his fingers into her vagina on this occasion. E.C. said she did not remember if she touched him and does not thini she had anything in her mouth. She did not remember him doing anything else with his penis. She has tried to forget these things and does not like thinking about it. E.C. said she signed the statement given to Jordan and that it was the truth. She understood what it meant to tell the truth. E.C. said after the incident on the waterbed she went to Havana, Illinois, with defendant to look at houses but defendant did not fondle her on that trip. E.C. also testified defendant drove her and her friend M.C. out in the country and offered them money for hugs and kisses. Defendant gave them both “French and regular kisses” and told them not to tell anyone.

M.C. testified she is 12 years old. She and E.C. would often go places with defendant and he would take them out to eat or buy them clothes. On one occasion he took them to a lake outside of town. Defendant told them he would give each of them $5 for five hugs and kisses. M.C. said while defendant was kissing her he put his hand inside her shirt, rubbed her back, and raised her shirt. Over defense objection, M.C. stated that E.C. told her that on one occasion that defendant “took her (E.C-) into his house and actually did sex to her.”

A.C. and R.C., E.C.’s parents, testified that defendant saw E.C. at least once a week and would often take her places alone. R.C. recalled E.C. acting upset on one or two occasions after going someplace with defendant.

Defendant testified he is 46 years old and works as a general contractor. He lived in Bloomington next door to E.C. and would often go places with various members of her family. Defendant took E.C. to fairs or events around central Illinois but denied ever doing “anything of a sexual nature” with her. Defendant said that on one occasion he took M.C. and E.C. to Clinton Lake in De Witt County. While he was driving, the girls started talking about training bras. Then he said M.C. exposed her breasts which he could not see from the driver’s seat. Defendant became upset when the girls began talking about condoms and masturbation and told them to “shut up.” When they got to the lake, defendant said E.C. was upset because she had never heard defendant yell. Defendant said he put his arms around them and said he was sorry and kissed them both on the cheek. Defendant did not offer them money but the girls took some change off the dashboard after defendant bought gas. On other occasions defendant took E.C. camping, shopping, or to a movie but he denied ever touching her sexually. Defendant stated that on Saturday, December 22, 1990, he took E.C. with him to Havana, Illinois, to submit a job estimate on a house. Defendant said he frequently goes to Furrows in Bloomington and may have taken E.C. with him but he does not specifically remember taking her there. Defendant stated he considers himself a homosexual and admitted he pleaded guilty in November 1990 to sexual abuse of a young boy.

Pursuant to the prosecution’s motion, the court nol-prossed count III. The jury found defendant guilty on all remaining counts. Defendant filed a post-trial motion which the trial court denied. At the sentencing hearing, the State presented L.M., who testified that she had known defendant since 1967 when he was her next-door neighbor. In 1969 when L.M. was nine, defendant fondled her vagina with his finger. He also attempted to perform oral sex on her but she was able to get free and run home. Defendant attempted to molest her on another occasion but stopped when L.M. screamed. Defendant testified he did not remember ever meeting L.M. much less fondling her.

Defendant alleges the trial court committed reversible error by failing to conduct a hearing pursuant to section 115 — 10 of the Code in regard to M.C.’s statement that E.C. said defendant “took her into his house and actually did sex to her.” Section 115 — 10 of the Code provides:

“(a) In a prosecution for a sexual act perpetrated upon a child under the age of 13, *** the following evidence shall be admitted as an exception to the hearsay rule:
(2) testimony of an out of court statement made by such child describing any complaint of such act or matter or detail pertaining to any act which is an element of an offense which is the subject of a prosecution for a sexual act perpetrated upon a child.
(b) Such testimony shall only be admitted if:
(1) The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and
(2) The child either:
(A) Testifies at the proceeding; or
(B) Is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement.” (Ill. Rev. Stat. 1989, ch. 38, pars. 115—10(a)(2), (a)(b).)

The legislature enacted section 115 — 10 to expand the previous hearsay exception, to allow into evidence out-of-court statements of children who are victims of sexual abuse. (85th Ill. Gen. Assem., Senate Proceedings, June 26, 1987, at 227; People v. Rushing (1989), 192 Ill. App. 3d 444, 451, 548 N.E.2d 788, 792.) A statement admitted pursuant to section 115—10 must show a “ ‘particularized guarantee[ ] of trustworthiness.’ ” People v. Coleman (1990), 205 Ill. App. 3d 567, 581, 563 N.E.2d 1010, 1019, quoting Idaho v. Wright (1990), 497 U.S. 805, 816, 111 L. Ed. 2d 638, 653, 110 S. Ct. 3139, 3147.

We find defendant has waived the issue of the trial court’s failure to conduct a section 115—10 hearing before M.C. testified. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130; People v. Booker (1992), 224 Ill. App. 3d 542, 552, 585 N.E.2d 1274, 1281.) In order to preserve an argument for appeal, both an objection at trial and a written post-trial motion raising the issue are required. (Enoch, 122 Ill. 2d at 186, 522 N.E.2d at 1130; Booker, 224 Ill. App. 3d at 552, 585 N.E.2d at 1281.) Although defendant objected to M.C.’s testimony at trial, he did not raise the issue in his post-trial motion. When a defendant has not properly preserved his claim of error, appellate review is limited to the determination of whether the statement was so prejudicial as to amount to plain error under Illinois Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)). Since we do not consider M.C.’s statement to have affected substantial rights of defendant or to have denied him a fair trial, we find defendant has waived this issue on appeal.

On the merits we find the trial court erred in failing to conduct a section 115 — 10 hearing before M.C. testified, but that such error was harmless. When error is shown to exist, a reviewing court must reverse unless it is clearly shown that the error was not prejudicial to defendant. (People v. Lawler (1991), 142 Ill. 2d 548, 562, 568 N.E.2d 895, 901.) Although the presence of the declarant in court, or even the fact that the declarant testifies, does not prevent hearsay from being hearsay (Lawler, 142 Ill. 2d at 557, 568 N.E.2d at 899; cf. 2 J. Strong, McCormick on Evidence §326 (4th ed. 1992)), the admission of hearsay is harmless if such statement is fully corroborated by the declarant’s testimony at trial and the defense has the opportunity to cross-examine the declarant. (People v. Morton (1989), 188 Ill. App. 3d 95, 102, 543 N.E.2d 1366, 1370-71.) E.C.’s statement to M.C. that defendant “actually did sex to her” was admitted after E.C. had testified that defendant digitally and orally penetrated her vagina. M.C.’s testimony was only cumulative of testimony already given. Considering E.C.’s direct testimony, we conclude the error was harmless.

Defendant’s next contention is that the State failed to prove beyond a reasonable doubt that the criminal activity alleged in counts IV and V occurred within McLean County. The State argues defendant waived this issue under section 1 — 6(a) of the Criminal Code of 1961 (Criminal Code), which states that “[a]ll objections of improper place of trial are waived by a defendant unless made before trial.” (Ill. Rev. Stat. 1989, ch. 38, par. 1—6(a).) Defendant would have waived this issue if he were alleging a defective indictment rather than a failure of proof. It is true that an objection to improper place of trial is waived unless defendant objects before trial. However, the fact that the State has failed to prove the location of the offense need not and cannot be objected to before trial. (People v. McClain (1978), 60 Ill. App. 3d 320, 322-23, 376 N.E.2d 774, 776.) In his appellate brief, defendant appears to allege, not a defect in the indictment, but rather a failure of proof as to venue and thus has not waived this issue.

Nonetheless, we find the evidence in the record is sufficient to prove counts IV and V occurred within McLean County. Venue is proper in any county where any element of the offense was committed. (People v. Lambert (1990), 195 Ill. App. 3d 314, 318, 552 N.E.2d 300, 303.) Venue is a material allegation which must be proved beyond a reasonable doubt along with the other elements of an offense. (People v. Hagan (1991), 145 Ill. 2d 287, 300, 583 N.E.2d 494, 500.) Venue may be established by direct or circumstantial evidence. (People v. Ramsey (1986), 147 Ill. App. 3d 1084, 1088, 496 N.E.2d 1054, 1057; Hagan, 145 Ill. 2d at 300, 583 N.E.2d at 500.) “The location of the offense is proved by circumstantial evidence where the only rational conclusion to be drawn from the evidence as a whole is that the offense took place in the county alleged.” (Ramsey, 147 Ill. App. 3d at 1089, 496 N.E.2d at 1057-58; see also People v. Toellen (1978), 66 Ill. App. 3d 967, 971, 384 N.E.2d 480, 483.) A jury’s determination as to circumstantial evidence should not be disturbed unless there are circumstances contradicting the reasonable inferences and conclusions drawn by the jury from such evidence. People v. Stone (1977), 46 Ill. App. 3d 729, 731, 361 N.E.2d 330, 332.

Count IV states that defendant committed an act of aggravated criminal sexual abuse involving the hands of defendant and the vagina of E.C.; count V states that defendant committed an act of aggravated criminal sexual assault involving the vagina of E.C. and the finger of defendant. These incidents were alleged to have occurred during the summer of 1990 when E.C. accompanied defendant on a trip to Furrows and a country drive afterward. E.C. testified at trial that defendant touched her “[rjight between my legs” in the summer of 1990 but she could not remember any other details. Jordan testified at trial that the country area surrounding Furrows is in McLean County but he could not swear the incidents E.C. testified to happened within the borders of McLean County. However, in People’s exhibit No. 1, E.C. stated the following about the Furrows incident:

“He put his finger inside and made it go up and down or from side to side. He did that until we got to town and started seeing traffic. He made me straighten out my clothes so they wouldn’t be crooked. *** When we got home he gave me two or three dollars and I went inside my house.”

Defendant argues that E.C.’s comment about “coming into town” does not necessarily mean Bloomington. However, given the fact that Bloomington is E.C.’s hometown, this is the only logical conclusion to be drawn in the context of her statement. E.C. did not mention driving to any other cities that day with defendant and the jury could logically conclude her statement about “coming into town” meant Bloomington.

Apart from this evidence, we find section 1 — 6(f) of the Criminal Code is applicable to the instant case:

“If an offense is committed upon any railroad car, vehicle, watercraft or aircraft passing within this State, and it cannot readily be determined in which county the offense was committed, the offender may be tried in any county through which such railroad car, vehicle, watercraft or aircraft has passed.” (Ill. Rev. Stat. 1991, ch. 38, par. 1—6(f).)

The offenses charged in counts IY and V of this case took place in defendant’s van while the van was traveling within the State. Applying section 1 — 6(f) of the Criminal Code, venue would still be proper in McLean County even if defendant drove out of McLean County temporarily since defendant’s vehicle had to have passed through McLean County to return E.C. to her home in Bloomington. See also Ramsey, 147 Ill. App. 3d at 1089, 496 N.E.2d at 1058; People v. Frank (1981), 98 Ill. App. 3d 388, 395, 424 N.E.2d 799, 804; People v. Barksdale (1974), 24 Ill. App. 3d 489, 497, 321 N.E.2d 489, 495.

Defendant next contends he was denied a fair trial where the trial court failed by its own motion to instruct the jury that venue must be proved beyond a reasonable doubt. (See Illinois Pattern Jury Instructions, Criminal, No. 2.07 (3d ed. 1992).) The burden of preparing criminal jury instructions is primarily on the parties, not the trial court. The trial court has no obligation to give instructions not requested by counsel and no party may raise on appeal the failure to give any instruction unless he tendered it to the court. (People v. Fetter (1992), 227 Ill. App. 3d 1003, 1007, 591 N.E.2d 474, 476.) Failure to object at trial to an error in jury instructions generally waives the issue for appeal (People v. Carney (1992), 229 Ill. App. 3d 690, 696, 593 N.E.2d 1035, 1039; People v. Waisvisz (1991), 221 Ill. App. 3d 667, 676, 582 N.E.2d 1383, 1389-90) as does the failure to raise the issue in a written post-trial motion. (Enoch, 122 Ill. 2d at 186, 522 N.E.2d at 1130.) However, under a limited exception for plain error in Supreme Court Rule 451(c), substantial defects in instructions are not waived by failure to make a timely objection thereto if the interests of justice require. (134 Ill. 2d R. 451(c).) This plain error exception applies only to correct serious or grave errors, cases that are factually close, or cases in which the error threatens the fundamental fairness of the defendant’s trial. (People v. Hood (1991), 210 Ill. App. 3d 743, 749, 569 N.E.2d 228, 232; see also People v. Shields (1991), 143 Ill. 2d 435, 446, 575 N.E.2d 538, 543.) Here, we determined that section 1— 6(f) of the Criminal Code established venue in McLean County. In addition, defendant did not offer any venue instructions or object to a lack of venue instruction at the trial. Because defendant failed to tender an instruction on venue at trial and failed to raise the issue in his post-trial motion, and since the plain error exception does not apply, we find defendant has waived the issue.

On the merits we find the trial court’s failure to sua sponte give the venue instruction was not reversible error. The jury must be instructed that the State is required to prove beyond a reasonable doubt that each element of the charged offense occurred in the county in which the crime was alleged to have been committed if the evidence raises a question of the propriety of venue. (People v. Chaney (1987), 157 Ill. App. 3d 552, 563, 510 N.E.2d 997, 1004.) Such an instruction must be given only if the evidence raises a factual question as to whether venue had been proved beyond a reasonable doubt. (McClain, 60 Ill. App. 3d at 323, 376 N.E.2d at 777.) In McClain, the court refused to tender defendant’s instruction on venue. The reviewing court concluded that such instruction should have been given but that the error was harmless because the evidence at trial established venue beyond a reasonable doubt. (McClain, 60 Ill. App. 3d at 323, 376 N.E.2d at 777.) Here section 1—6(f) removed the issue of venue from the case. Even if venue were an issue, the jury was informed of the issue during defense counsel’s closing argument, which included the following:

'“But even if it did happen, ladies and gentlemen, you still can’t find him guilty of these particular counts, these last two counts, because the incident didn’t happen in McLean County. *** It’s a matter of venue. *** So even if you think something happened between James Glass and [E.C.], unless you are convinced beyond a reasonable doubt that it happened in McLean County, and certainly none of the evidence that I heard substantiates that, you cannot and should not find James Glass guilty of these offenses on these two counts.”

Generally, in determining the effect of faulty jury instructions on the validity of a defendant’s conviction, the instructions should not be judged by themselves but must be considered in light of the record as a whole, including the evidence and arguments presented to the jury. (Shields, 143 Ill. 2d at 445-46, 575 N.E.2d at 543.) Given the application of section 1 — 6(f) of the Criminal Code and the information stated to the jury by defense counsel in his closing argument, we find the court’s failure to sua sponte instruct on this issue was harmless error.

Defendant’s next contention is that he was not proved guilty beyond a reasonable doubt because E.C.’s testimony was inconsistent, improbable, and contrary to the testimony of other defense witnesses. The reasonable doubt test articulated in People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267, governs an appellant’s claim of evidentiary insufficiency in sex offense cases. 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. (Collins, 106 Ill. 2d at 261, 478 N.E.2d at 276.) 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, 478 N.E.2d at 277, quoting Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.

Defendant argues that E.C.’s testimony at trial about the incident in his bedroom directly contradicts the allegations in count I and her statement in People’s exhibit No. 1 that defendant had her perform fellatio on him to the point of ejaculation. At trial, E.C. said she could not remember defendant doing anything with his penis besides rubbing her vagina and she did not think she had anything in her mouth. As in many sex offense cases, the outcome of this case rested upon the credibility of the victim and the defendant. The jury had the opportunity to view the proceedings and was charged with the responsibility of weighing the credibility of witnesses and resolving any conflicts and inconsistencies in their testimonies. (Carney, 229 Ill. App. 3d at 694-95, 593 N.E.2d at 1038; People v. McCarthy (1991), 213 Ill. App. 3d 873, 880, 572 N.E.2d 1219, 1224; People v. Lemons (1991), 210 Ill. App. 3d 33, 41, 568 N.E.2d 1380, 1385.) A fact finder’s determinations on witness credibility and its resolution of disputed questions of fact are entitled to deference on review. (People v. Jones (1988), 174 Ill. App. 3d 737, 745, 528 N.E.2d 1363, 1369.) Any shortcomings in a victim’s testimony do not destroy credibility but merely affect the weight given to the testimony by the trier of fact. (Booker, 224 Ill. App. 3d at 550, 585 N.E.2d at 1280.) At trial, E.C. admitted she was scared and had tried to forget the incidents. E.C. also indicated she understood she had to tell the truth and that the statement she gave to Jordan was true. The jury was fully aware of the deficiencies in E.C.’s testimony, but it chose to believe her version over the story given by defendant and we do not find that choice to be improbable or unsatisfactory.

In addition, the evidence as a whole sufficiently described defendant’s conduct during the commission of the offenses. The failure of a victim to testify at trial to specific details regarding a defendant’s sexual acts upon her is not conclusive since section 115 — 10 of the Code does not require every detail recited in a previous statement be corroborated by the child’s testimony at trial. (Ill. Rev. Stat. 1989, ch. 38, par. 115—10; Rushing, 192 Ill. App. 3d at 451, 548 N.E.2d at 792; Morton, 188 Ill. App. 3d at 102, 543 N.E.2d at 1371.) We find E.C.’s statement and testimony at trial to be sufficiently reliable and any discrepancies in her statements did not detract from the reasonableness of her story as a whole.

Defendant argues that E.C.’s testimony as to his “touching” did not meet the statutory definition of “penetration.” Section 12— 12(f) of the Criminal Code defines penetration in pertinent part as follows:

“(f) ‘Sexual penetration’ means 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.” (Ill. Rev. Stat. 1991, ch. 38, par. 12—12(f).)

In People’s exhibit No. 1, E.C. described the incident which occurred after she and defendant had gone to Furrows and were driving in the country: “He [defendant] got his hand inside my underwear and started rubbing my private parts. Some people call it [a] potty. He put his finger inside and made it go up and down or from side to side.” (Emphasis added.) E.C. also described in detail how defendant had her perform fellatio on him and how he performed cunnilingus on her. The issue whether sexual penetration occurred is a question of fact for the jury (People v. Harris (1989), 187 Ill. App. 3d 832, 838, 543 N.E.2d 859, 862), and it was appropriate for the jury to conclude that penetration did occur in this case.

We also reject defendant’s contention that the absence of medical testimony or evidence to corroborate the victim’s claim of sexual assault raises a reasonable doubt as to his guilt. A sex offense victim’s testimony, as with any other crime victim, need not be substantially corroborated for a defendant to be found guilty beyond a reasonable doubt. People v. Schott (1991), 145 Ill. 2d 188, 206, 582 N.E.2d 690, 698.

Defendant next alleges that the court should overrule its holding in People v. Ewald (1991), 210 Ill. App. 3d 7, 568 N.E.2d 451, in light of People v. Bole (1991), 223 Ill. App. 3d 247, 585 N.E.2d 135, and modify defendant’s sentence so two of his three terms run concurrently. Defendant alleges the court below imposed three consecutive 25-year terms on three counts because it mistakenly believed that consecutive terms were mandatory. The applicable statutory provision, section 5 — 8—4(a) of the Unified Code of Corrections (Unified Code), provides in pertinent part:

“(a) *** 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— H 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).)

Count I and count II were alleged to have occurred on December 23, 1990, and count V was alleged to have occurred between May and September of 1990. Defendant contends the December 23 actions are not within the scope of section 5 — 8—4(a) of the Unified Code since that section only authorizes mandatory consecutive sentences where the sexual assaults were part of a single course of conduct.

Ewald, a fourth district case, held that section 5 — 8—4(a) of the' Unified Code mandates consecutive sentences where multiple offenses include violations of sections 12 — 13 or 12 — 14 of the Criminal Code (Ill. Rev. Stat. 1989, ch. 38, pars. 12—13, 12—14), even if the offenses arose from distinctly separate courses of conduct. (Ewald, 210 Ill. App. 3d at 9, 568 N.E.2d at 452.) Ewald was followed by the fifth district in People v. Hough (1991), 221 Ill. App. 3d 447, 453-55, 582 N.E.2d 259, 263-64, and People v. Haun (1991), 221 Ill. App. 3d 164, 176-77, 581 N.E.2d 864, 873, as well as in other fourth district cases (People v. Lipscomb (1991), 215 Ill. App. 3d 413, 574 N.E.2d 1345; People v. McDade (1991), 219 Ill. App. 3d 317, 579 N.E.2d 1173). In Ewald, we acknowledged that the language in section 5—8—4(a) is unclear, but stated that “[A]ny other interpretation would be difficult to reconcile since it is unlikely the legislature intended to authorize a mandatory consecutive sentence in cases where a section 12 — 13 or section 12 — 14 violation stems from a single course of conduct, and not, as in the instant case, when a defendant sexually assaults two young girls on separate occasions.” Ewald, 210 Ill. App. 3d at 10, 568 N.E.2d at 453.

Bole, a second district case, held that, by its plain meaning, the mandatory consecutive sentencing provision in section 5 — 8—4(a) of the Unified Code was intended to apply only to situations where the relevant offenses occurred during a single course of conduct. (Bole, 223 Ill. App. 3d at 254, 585 N.E.2d at 141.) Bole was followed by one second district and one third district case, Fetter (227 Ill. App. 3d at 1008, 591 N.E.2d at 477), and People v. Dooley (1992), 227 Ill. App. 3d 1063, 1066, 592 N.E.2d 1112, 1114. The court in Bole found it significant that the legislature placed the provision regarding section 12 — 13 or 12 — 14 offenses with the already existing exception to the single course of conduct ban against consecutive sentences. The court reasoned that if the legislature intended consecutive sentences to apply to sections 12 — 13 and 12 — 14 offenses irrespective of a single course of conduct, the legislature could have set the provision out separately. Bole, 223 Ill. App. 3d at 258, 585 N.E.2d at 144.

Where the language of a statute is ambiguous and admits of alternate constructions, a reviewing court should select the construction which leads to a logical result and reject those which would lead to an absurdity, inconvenience, or injustice. (Hough, 221 Ill. App. 3d at 454-55, 582 N.E.2d at 264; People v. Jones (1985), 134 Ill. App. 3d 1048, 1051, 481 N.E.2d 726, 728.) Under the Bole interpretation, a serial sex abuser convicted of molesting the same child on different days or many children on different occasions would not be exposed to mandatory consecutive terms whereas an offender who violated a child more than once on the same day would be exposed to consecutive terms. This interpretation is illogical and would lead to absurdity and injustice in sentencing decisions. A serial sex abuser who commits several offenses on the same occasion is no more culpable than one who commits several offenses on different occasions. We elect to follow Ewald and its progeny and conclude defendant was properly sentenced to three consecutive sentences in conformity with section 5— 8 — 4(a) of the Unified Code. We further note the supreme court recently rejected an attempt to narrow the scope of section 5 — 8— 4(a). People v. Wittenmyer (1992), 151 Ill. 2d 175, 601 N.E.2d 735.

We further reject defendant’s contention that his sentences were an abuse of discretion. A trial court’s sentencing decision is entitled to great deference. (People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882, 884.) It is not our function to serve as a sentencing court and we will not disturb a sentence on review absent an abuse of discretion by the trial court. (People v. Cox (1980), 82 Ill. 2d 268, 280, 412 N.E.2d 541, 547.) Defendant contends the trial court did not properly consider all the mitigating factors in evidence or give adequate consideration to his rehabilitative potential. Defendant correctly states that the Illinois Constitution demands “[a]ll penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.” (Ill. Const. 1970, art. I, §11.) However, the trial court is not required to give greater weight to the possibility of rehabilitation than to the seriousness of the offense. (People v. Partin (1987), 156 Ill. App. 3d 365, 373, 509 N.E.2d 662, 666-67.) In imposing the sentence, a court has no obligation to recite and give value to each fact presented at the sentencing hearing. (Partin, 156 Ill. App. 3d at 373, 509 N.E.2d at 667.) There is a strong presumption that the court’s sentencing decision is based upon proper legal reasoning and that the court has considered any evidence in mitigation before it. Partin, 156 Ill. App. 3d at 373, 509 N.E.2d at 667.

The trial court carefully considered the defendant’s presentence report in its sentencing decision, particularly noting defendant’s prior criminal record, which included convictions for auto theft, contributing to the delinquency of a child, thefts, motor vehicle offenses, and a 1989 aggravated criminal sexual assault. The record indicates that defendant’s aggravated criminal sexual assault of E.C. in December 1990 occurred while defendant was out on bond awaiting sentencing in the 1989 aggravated criminal sexual assault case. In addition, the testimony of L.M. presented at the sentencing hearing indicates defendant had sexually molested young victims approximately 20 years ago. The presentence report also contained statements from E.C.’s parents regarding the psychological damage inflicted on E.C. and her family. We find the trial court properly considered all the relevant factors necessary in sentencing defendant. In light of defendant’s prior offenses, the trial court could reasonably conclude consecutive 25-year sentences were necessary as a deterrent and as a protective measure for society.

For the foregoing reasons, we affirm defendant’s convictions and sentences for aggravated criminal sexual assault and aggravated criminal sexual abuse.

Affirmed.

STEIGMANN, P.J., and LUND, J., concur.


author: JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD HEFFRON, Defendant-Appellant.
    Fourth District
    No. 4—92—0571
    Opinion filed December 31, 1992.
    Alan J. Novick, of Jennings, Novick, Taseff, Smalley & Davis, of Bloomington, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Norbert J. Goetten, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

This case presents the question of whether the sufficiency of a traffic ticket can be successfully attacked for the first time by a motion in arrest of a judgment of conviction and sentence (Ill. Rev. Stat. 1989, ch. 38, par. 116 — 2) when the ticket states that the accused is charged with reckless driving and cites the statutory provision creating this offense (Ill. Rev. Stat. 1989, ch. 95½, par. 11—503(a)), but does not set forth any particulars of the conduct claimed to be reckless. We hold that the challenge comes too late and the ticket is sufficient to support the conviction.

On October 17, 1991, a uniform citation and complaint form, meeting the requirements of Supreme Court Rule 552 (134 Ill. 2d R. 552), was filed in the circuit court of McLean County charging defendant Richard Heffron with the State offense of reckless driving. The reference to the offense was as described in the previous paragraph. After a bench trial, the court entered an order on April 28, 1992, finding defendant guilty. On April 30, 1992, defendant filed a motion in arrest of judgment contending the proof was insufficient to support the verdict and that the charging instrument was defective because of its failure to describe how defendant had been negligent. On June 16, 1992, the court denied the motion in arrest of judgment and sentenced defendant to 18 months of court supervision, fined him $100 and ordered him to pay court costs. Defendant appeals. We affirm.

Defendant relies on People v. Griffin (1967), 36 Ill. 2d 430, 223 N.E.2d 158, and People v. Podhrasky (1990), 197 Ill. App. 3d 349, 554 N.E.2d 578. In both of those cases charges of reckless driving in much the same form as here were held to be insufficient to advise the accused of the nature of the conduct of which he was charged. However, the charge in those cases was an information and not a traffic ticket, as here. The State relies upon People v. Tammen (1968), 40 Ill. 2d 76, 237 N.E.2d 517, and a number of appellate decisions including that of People v. Sikes (1986), 141 Ill. App. 3d 773, 491 N.E.2d 168. Those cases involved traffic tickets, as here, but did not concern charges of reckless driving as did Griffin and Podhrasky.

In Griffin, as here, the sufficiency of the charging instrument was challenged, for the first time, by a motion in arrest of judgment. That defendant relied upon the decision in People v. Green (1938), 368 Ill. 242, 13 N.E.2d 278, where the supreme court had held that an information charging reckless driving was invalid when it failed to set forth the nature of. the alleged recklessness. The Green decision explained the accused could not tell from the information whether he (1) was alleged to have been intoxicated, (2) had been driving on the wrong side of the road or on the sidewalk, (3) driving without brakes, or (4) had run a red light. The Green court held that the charge also failed to set forth the time and place of the offense with enough clarity.

The Griffin court held that the failure to allege the time and place of the offense would no longer invalidate the charge after verdict because that information could have been obtained by a bill of particulars. However, the Griffin court noted the lack of description of the particular acts with which the defendant was charged and the nature and elements of the offense. That court concluded that those factors negated that defendant’s ability to exercise his right against double jeopardy by pleading a judgment in that case in a subsequent case, which might arise in the future concerning his driving at the time in question. The opinion also indicated that the charge needed to be sufficiently specific to permit the accused to prepare a defense.

The charging instrument in Podhrasky, as in Griffin, but unlike here, was an information. It charged reckless driving and, as in both of those cases, merely cited the statute but did not describe the manner in which the accused was reckless. The Podhrasky opinion does not reveal when the question of the specificity of the information was raised but held that there, as in Griffin, the vague nature of the information deprived that defendant of the ability to exercise his right against double jeopardy. As that defendant claimed an alibi defense, the appellate court concluded that his ability to make that defense was not impaired by the failings of the information.

In Tammen, the accused was charged in an “Illinois Uniform Traffic Ticket and Complaint,” as prescribed by Supreme Court Rule 552, with the offense of drag racing (iLL. Rev. Stat. 1967, ch. 95½, par. 145.1). Apparently, no question was raised as to the form of the ticket until appeal and, clearly, no challenge was made prior to conviction. There, as here, the ticket merely mentioned the offense of drag racing and set forth a statutory citation which was wrong. That court stated:

“The constitutional right of a defendant to know the nature and cause of the accusation means that the offense charged be set forth with all necessary certainty so that defendant will be able to intelligently prepare his defense and to prevent his being tried a second time for the same offense after being once put in jeopardy. (People v. Griffin, 36 Ill. 2d 430[, 223 N.E.2d 158]; People v. Peters, 10 Ill. 2d 577[, 141 N.E.2d 9].) The modern trend is to do away with technicalities of pleading and stress simplicity which does not detract from clarity in order that the accused will understand the charge against him.” Tammen, 40 Ill. 2d at 77-78, 237 N.E.2d at 518.

The Tammen court then explained that section 111—3 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1967, ch. 38, par. 111—3) had been designed to meet the foregoing constitutional rights of a defendant in regard to charging, while at the same time reducing technicality and promoting simplicity. The supreme court noted that the traffic ticket provided for by Supreme Court Rule 552 contained all the requirements of section 111 — 3 of the Code except for the requirement of section 111 — 3(a)(3) to set forth the nature and elements of the charged offense. The court then stated:

“Inasmuch as the Uniform Traffic Ticket is only used for misdemeanors, is written by an arresting officer rather than a State’s Attorney and is generally written at the time the offense is committed, we believe that naming the offense and citing it is sufficient and will generally be understood by the person charged. Under section 111 — 6 [of the Code] (Ill. Rev. Stat. 1967, chap. 38, par. 111—6) the accused may request a bill of particulars which will enable him ‘to prepare his defense.’ We hold that a conviction based on a Uniform Traffic Ticket naming an offense and citing the statutory provision, where there is no objection to the sufficiency of the ticket or request for a bill of particulars, will not be set aside for failure to comply with section [111—3(a)(3)].” Tammen, 40 Ill. 2d at 78-79, 237 N.E.2d at 518-19.

In Sikes, we followed Tammen in holding that a traffic ticket in the form provided by Supreme Court Rule 552, which merely described the offense as making an improper right turn (Ill. Rev. Stat. 1983, ch. 95½, par. 11—801) and gave the statutory citation, could not be attacked successfully after judgment. We followed People v. Domovich (1980), 91 Ill. App. 3d 870, 414 N.E.2d 290, in interpreting Tammen to speak to the sufficiency of traffic tickets to meet attack after trial has started. In Domovich, the offense involved was leaving the scene of an accident.

All of the cases to which we have referred were decided prior to a fairly recent amendment to section 116 — 2 of the Code (Ill. Rev. Stat. 1991, ch. 38, par. 116—2) which provides for motions in arrest of judgment. (See Pub. Act 86—391, eff. August 30, 1989 (1989 Ill. Laws 2495).) That amendment added subsection (c) to section 116 — 2 so that section 116 — 2 now states in its entirety as follows:

“Motion in arrest of judgment, (a) A written motion in arrest of judgment shall be filed by the defendant within 30 days following the entry of a verdict or finding of guilty. Reasonable notice of the motion shall be served upon the State.
(b) The court shall grant the motion when:
(1) The indictment, information or complaint does not charge an offense, or
(2) The court is without jurisdiction of the cause.
(c) A motion in arrest of judgment attacking the indictment, information, or complaint on the ground that it does not charge an offense shall be denied if the indictment, information or complaint 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 out of the same conduct.” Ill. Rev. Stat. 1991, ch. 38, par. 116-2.

The effect of the addition of section 116 — 2(c) was to place the sufficiency of the indictment, information or complaint in the same posture, when first raised in a motion in arrest of judgment, as would be the case if the issue was raised first on appeal. As explained by this court in People v. Hughes (1992), 229 Ill. App. 3d 469, 471-72, 592 N.E.2d 668, 669, the decisions in People v. Pujoue (1975), 61 Ill. 2d 335, 339, 335 N.E.2d 437, 440, and People v. Gilmore (1976), 63 Ill. 2d 23, 29, 344 N.E.2d 456, 460, had held that the sufficiency of those charges, when raised first on appeal need only be sufficient to enable a defendant to prepare a defense and to plead a conviction in bar to a subsequent prosecution for the same conduct. In People v. Lutz (1978), 73 Ill. 2d 204, 210, 383 N.E.2d 171, 173, and People v. Smith (1984), 99 Ill. 2d 467, 470, 459 N.E.2d 1357, 1359, the supreme court had held that under the wording of section 116 — 2 of the Code, when a motion in arrest of judgment was made, the charge was not to be tested by the more lenient standard applicable when the issue was not raised until appeal. The Smith court suggested legislation making the appellate standard applicable might be desirable and section 116 — 2(c) was enacted in apparent response to that suggestion. See also Hughes, 229 Ill. App. 3d at 472-73, 592 N.E.2d at 670.

We need not decide whether the traffic ticket upon which defendant was convicted meets the Pujoue or Gilmore test codified in section 116 — 2(c) of the Code because we deem the Tammen decision to still be the proper test to apply to a traffic ticket the sufficiency of which is tested by a motion in arrest of judgment.

Defendant properly emphasizes that the offense of reckless driving involved in Griffin, Podhrasky, and here can be committed in many more ways than the offenses involved in the cases cited by the State. We recognize that a logical argument can be made that the nature and elements of the offense should be required in traffic tickets when reckless driving is charged. However, Tammen was decided several terms after Griffin and the definite tenor of Tammen was that leeway should be given in the drafting of all traffic tickets because they were drafted on a form by nonlawyer police officers, and only misdemeanors were involved and the defense could request a bill of particulars. The drag racing offense in Tammen and the making of an improper right turn in Sikes could have been committed in more than one way. We conclude that the decisive factor in determining whether the nature and elements of an offense must be alleged to sustain a conviction is not the variety of ways an offense may be accomplished but whether the charge is that covered by Supreme Court Rule 552.

The parties dispute as to whether defendant could be recharged if we reversed and permitted the judgment of conviction and sentence to be arrested. Defendant maintains double jeopardy principles would prevent a new charge. As we are affirming, we need not address that issue.

For the reasons set forth, we affirm.

Affirmed.

COOK and LUND, JJ., concur.