author: JUSTICE McNULTY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD CARTER, Defendant-Appellant.
    First District (5th Division)
    No. 1—89—3392
    Opinion filed April 16,1993.

      Rita A. Fry, Public Defender, of Chicago (Lynne Hubanks Miller, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Margaret M. Regan, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNULTY

delivered the opinion of the court:

Following a jury trial, defendant Richard Carter was found guilty of criminal sexual assault and aggravated criminal sexual assault and sentenced to an extended term of 46 years in the Illinois Department of Corrections. In appealing this conviction defendant alleges that the trial court erred in allowing the use of anatomical dolls; that imper-missive corroborative hearsay statements were admitted; that he was not proven guilty beyond a reasonable doubt; that the jury instructions did not enumerate the specific sexual acts; and that the trial judge erred in considering the victim’s age as a factor to enhance defendant’s sentences.

Defendant did not testify at trial, and the following testimony was adduced by the State.

1. TESTIMONY OF THE ALLEGED VICTIM, L.C.

On October 16, 1989, a competency hearing was held, in which the judge determined that based on the fact that L.C. had the ability to recollect events with detail, and understood the difference between telling a lie and telling the truth, she was competent within the law. At trial, five-year-old L.C. testified that on July 30, 1988, a man (whom she later identified at a police lineup as “Quiro” — the Spanish name for a white person with light hair) called her into the yard next door to her house, took her hand and pushed her into the basement of another neighbor’s house. While in the basement, the man allegedly pulled down L.C.’s pants, unzipped his own pants and inserted his finger into her vagina. She further testified that this person put his penis into her mouth after which she pulled up her pants. (Over defense objection, the State used an anatomical male doll to demonstrate that L.C. could correctly identify the body parts.) L.C. further testified that she had told her sister, Mayra C., and her mother, Magdalena E, what had happened to her. These witnesses testified at trial (over defense objections) to their conversations with the alleged victim.

2. TESTIMONY OF MAYRA C.

Following a competency hearing, Mayra C., L.C.’s seven-year-old sister, said that when she and L.C. were playing on July 31, 1988, the day after the alleged incident, L.C. told her that “he done something down here, some guy.” Mayra also testified that on August 1, 1988, on the way home from the park, L.C. again spoke about what had happened to her. At this time, L.C. allegedly said that “he said if she wanted gum and she took it and he pulled her hand to the next door from, not his house, to [s-ic] another house.” The State then asked Mayra whom L.C. had been talking about and, over a sustained objection, Mayra answered “Ricardo.” Additionally, Mayra testified that L.C. told her “that he pulled her shorts down *** took out his penis *** put his finger in her vagina *** and put his penis in her mouth.”

3. TESTIMONY OF MAGDALENA F.

Magdalena, the mother of L.C. and Mayra, testified that on July 30, 1988 (the day of the alleged incident), she saw L.C. on the back porch crying. L.C. made no statements to her at that time. Later, on August 1, 1988, when Magdalena took her daughters and her nieces to the park, she heard L.C. “telling my nieces that the Quiro had grabbed her, that he had given her gum. He asked her if she wanted a ride. He had pulled down her shorts, her underwear, and that he put his penis in her mouth and the finger, he put it in her vagina.”

4. TESTIMONY OF DR. GONZALEZ

Dr. Gonzalez, an-emergency room physician at St. Mary’s Hospital, testified that he examined L.C. in the early morning hours of August 2, 1988, and that L.C. had an “inflammation of the genital area.” The cause of the inflammation was unknown and the tests indicated no presence of semen. Dr. Gonzalez stated that L.C. said only “that a man put his finger on her genitals.”

5. TESTIMONY OF OFFICER CORONA

Officer Corona testified that he interviewed L.C. and her mother at the police station and that he took them to St. Mary’s Hospital. Cross-examination elicited the fact that while Officer Corona spoke directly to L.C., it was the mother who responded to him. The officer credited this to the fact that the child was very shy.

On appeal, defendant first argues that the court erred in denying his pretrial motion to exclude the use of anatomical dolls during trial. He contends that the use of these dolls was prejudicial and also unnecessary as L.C. was able to identify correctly the body parts without any such demonstrative aids. During the voir dire to determine L.C.’s competency to testify, the court also asked the State to show how it intended to use the dolls at trial. In response to the prosecutor’s questions, L.C. identified the body parts correctly with the exception of using the word “peanuts” for penis and referring to the posterior as “tail.” Based on this examination, the trial judge determined (over defense objection) that the limited use of the dolls was indicated. However, at trial, during direct examination, L.C. used correct terminology for the body parts at issue. When the State attempted to introduce the dolls, the defense renewed its objection based on the fact that the testimony of the witness was clear and unambiguous. The court, however, allowed the dolls to be introduced as an appropriate way of verifying L.C.’s testimony.

Case law supports the trial court’s decision allowing the use of anatomical dolls. The use of anatomically correct dolls as testimonial aids by young children who are alleged victims of sexual abuse has been permitted by courts in several States: Indiana (Newton v. State (Ind. 1983), 456 N.E.2d 736); Louisiana (State v. Watson (La. Ct. App. 1986), 484 So. 2d 870); Massachusetts (Commonwealth v. Trenholm (1982), 14 Mass. App. 1038, 442 N.E.2d 745); Michigan (In re Rinesmith (1985), 144 Mich. App. 475, 376 N.W. 2d 139); Minnesota (State v. Eggert (Minn. Ct. App. 1984), 358 N.W.2d 156); Mississippi (Murriel v. State (Miss. 1987), 515 So. 2d 952); and North Carolina (State v. Fletcher (1988), 322 N.C. 415, 368 S.E.2d 633). In a recent Illinois decision (People v. Roman (1992), 260 Ill. App. 3d 436), this court determined that the use of an anatomically correct doll by a seven-year-old sexual abuse claimant was appropriate. Even though none of the aforementioned authority involves exactly the same factual scenario as the case at bar — the incorrect and then correct identification of body parts by a child claimant — we nevertheless find it persuasive in determining that the use of an anatomical doll at trial was appropriate. In reaching our conclusion that the use of the doll was more probative than prejudicial, we considered (in addition to the cited case law) the limited use of the doll at trial (only one doll was used and it was employed simply to demonstrate that L.C. knew the names of the body parts), the age of the alleged victim, her soft voice (the judge kept asking her to speak up), and the fact that an interpreter was used because of the language problem.

Defendant next contends that the trial court erred in denying his motion in limine to exclude out-of-court statements of L.C. to Mayra and Magdalena. The statements at issue are the one made to Mayra on July 31, 1988, the day after the incident, and the one made to Mayra and her cousins and overheard by Magdalena on August 1, 1988, on the way home from the park. The trial court considered the testimony of Mayra regarding the July 31 statement admissible under the prompt outcry or spontaneous declaration theory. It is undisputed that there are three factors to be considered when determining the admissibility of a statement under this exception to the hearsay rule: (1) there must be an occurrence sufficiently startling to produce a spontaneous and unreflected statement, (2) absence of time to fabricate, and (3) the statement must relate to the circumstances of the occurrence. (People v. Hart (1991), 214 Ill. App. 3d 512, 573 N.E.2d 1288.) It is well settled that an incident of sexual conduct between an adult and a child of “tender years” is an occurrence sufficiently startling to produce a spontaneous statement (People v. Roy (1990), 201 Ill. App. 3d 166, 558 N.E.2d 1208) even though the child may not react in an “excited manner.” (Hart, 214 Ill. App. 3d at 522, 573 N.E.2d at 1295.) Thus, just because L.C. went straight home after the incident, looked very sad and was crying, did not speak to her mother and went right to sleep does not defeat the claim that she experienced a startling occurrence. In fact, because she made a spontaneous and uninvited statement to her sister the next morning (that “some guy did something down here”), it was sufficient to show that she was still stressed by this occurrence. With respect to absence of time to fabricate, it is not the absence of time alone that controls the admissibility of the statement (People v. Sanchez (1982), 105 Ill. App. 3d 488, 434 N.E.2d 395); rather, it is the motivation of the declarant that is important. (In re Marriage of Theis (1984), 121 Ill. App. 3d 1092, 460 N.E.2d 912.) The basic rationale for the admission of the statements of very young children is that it is unlikely that they will have any reason to fabricate. The third factor to consider in determining if the statement is admissible under the spontaneous declaration or prompt outcry exception is whether the statement relates to the circumstances of the occurrence. L.C.’s statement to her sister on the morning after the occurrence that “he done something down here, some guy,” clearly refers to the alleged sexual abuse. We conclude, as did the trial court, that the statement at issue was properly admitted under the relied-on exception to the hearsay rule.

The trial court considered the testimonies of Mayra and Magdalena as to L.C.’s statements made on August 1, 1988, on the way home from the park admissible pursuant to the standards set out in section 115 — 10(a)(2) of the Illinois Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10(a)(2)). This authority provides in relevant part:

“(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.
(c) If a statement is admitted pursuant to this Section, the court shall instruct the jury that it is for the jury to determine the weight and credibility to be given the statement and that, in making the determination, it shall consider the age and maturity of the child, the nature of the statement, the circumstances under which the statement was made, and any other relevant factor.
(d) The proponent of the statement shall give the adverse party reasonable notice of his intention to offer the statement and the particulars of the statement.” Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10.

Defendant alleges that the court erred in allowing the hearsay testimony offered by Mayra and Magdalena in that it did not comply with the statutory requirements of a reliability hearing held outside the presence of the jury. In response, the State maintains that the hearing, which was held pursuant to defendant’s motion in limine to preclude the use of any hearsay statements pursuant to section 115— 10, was sufficient to satisfy the statutory reliability requirements. In this regard, the State contends that at this hearing the trial court considered the time and circumstances under which the statements were made. The State further argues that the trial court had consid-

ered the contents of the statements at issue when it reviewed the police reports. In support of its contention that a separate reliability hearing is not required by statute, the State cites People v. Balle (1992), 234 Ill. App. 3d 804, 601 N.E.2d 788, People v. Hart (1991), 214 Ill. App. 3d 512, 573 N.E.2d 1288, and People v. Roy (1990), 201 Ill. App. 3d 166, 558 N.E.2d 1208. The State correctly notes that these authorities, which also considered the admissibility of testimony as to a minor’s out-of-court statements in a sexual abuse trial, did determine that a trial judge’s failure to conduct a separate reliability hearing was harmless error. However, these cases are distinguishable from the case at bar, as they all involved bench trials, while the instant action involved a trial before a jury. As the Baile court stated, “ ‘the requirement of a ‘hearing outside the presence of the jury’ is not wholly inapplicable to bench trials.’ ” (Balle, 234 Ill. App. 3d at 816, qúoting Hart, 214 Ill. App. 3d at 524.) However, since the trial judge is presumed to have considered only admissible evidence, he may be presumed to have considered only the time, content, and circumstances under which the statement was made in determining the reliability of the statement. Therefore, even though the aforementioned decisions never articulate their findings as to the reliability of the out-of-court statements, such omission may be considered harmless error. These decisions are not instructive as to what procedures must be followed in conducting a reliability hearing when the statements under consideration will be presented to a jury.

Initially, we note that the statute itself does not require that the trial court set forth any specific findings or determinations regarding its conclusions as to reliability. The appellate court has dealt with this issue in People v. Coleman (1990), 205 Ill. App. 3d 567, 563 N.E.2d 1010, People v. Rocha (1989), 191 Ill. App. 3d 529, 547 N.E.2d 1335, and most recently in People v. West (1992), 234 Ill. App. 3d 578, 598 N.E.2d 1356. The Rocha court, which relied on the United States Supreme Court’s decision in Ohio v. Roberts (1980), 448 U.S. 56, 65 L. Ed. 2d 597, 100 S. Ct. 2531, in analyzing the issue of unavailability (for purposes of determining the constitutionality of section 115 — 10), held that in conducting the hearing to determine the reliability of the victim’s out-of-court statement, the evidence must show a particularized guarantee of trustworthiness. Rocha, 191 Ill. App. 3d at 541, 547 N.E.2d at 1342.) More recently, in People v. Coleman (1990), 205 Ill. App. 3d 567, 563 N.E.2d 1010, the court set forth the factors for determining the particularized guarantee of trustworthiness as found in the Supreme Court decision of Idaho v. Wright (1990), 497 U.S. 805, Ill L. Ed. 2d 638, 110 S. Ct. 3139. These include spontaneity and consistent repetition, mental state of declarant, use of terminology unexpected of a child of similar age, and lack of motive to fabricate. (Coleman, 205 Ill. App. 3d at 581-82, 563 N.E.2d at 1019.) The Coleman court further noted that although the trial court in the case under its consideration had (after determining that the child witness was unavailable) held a reliability hearing outside the presence of the jury, it had found the statement admissible after merely reciting the statutory language. The Coleman court further stated that after Wright, greater definition had been given to the required hearing and the finding necessary to allow the admission of the evidence. Accordingly, it remanded the case before it to the trial court to make a determination in accordance "with Wright. (Coleman, 205 Ill. App. 3d at 584, 563 N.E.2d at 1022.) Similarly in People v. West (1992), 234 Ill. App. 3d 578, 598 N.E.2d 1356, the reviewing court remanded the case under consideration to the trial court, which had merely recited the statutory language, without indicating that it had followed the guidelines set out in Wright and without reflecting for the record that the safeguards of reliability had been met. (West, 234 Ill. App. 3d 578, 598 N.E.2d 1356.) Relying on the aforementioned United States and Illinois authorities, we find that the hearing in the case at bar did not provide adequate guarantees of trustworthiness as it did not reflect the reasoning of the trial judge as to the reliability of the corroborative testimony. We therefore remand on this basis to the trial court so that it may conduct a second reliability hearing and make a determination in accordance with Wright and its progeny.

We further conclude, as argued by defendant, that the State did not comply with the statutory requirements of notice as to the hearsay testimony it intended to use. Although the trial court found that the furnishing of police reports and lists of potential witnesses satisfied the demand for notice, we do not agree. If only police reports, summaries, and lists of witnesses were required, these would be covered by general discovery, and no particular statutory provisions would be necessary. We read the statute as requiring more specific notice to defendant than that which would be forthcoming in response to an ordinary demand for discovery. The statutory provisions under consideration require that defendant be provided with the specific hearsay testimony of the child victim which will be presented at trial in order to protect him against surprise, unfairness, and inadequate preparation.

Defendant also contends that he was not proven guilty beyond a reasonable doubt. Although admitting that the testimony of one credible witness may be sufficient to convict (People v. Novotny (1968), 41 Ill. 2d 401, 244 N.E.2d 182), defendant argues that the testimony of L.C. absent what he contends are the improperly admitted prior consistent hearsay statements testified to by her sister and her mother is insufficient to convict. We decline to address this issue, as we find that it will be best resolved by the trier of fact if upon remand the statements at issue are found to be unreliable.

Defendant additionally argues that even if the prior consistent hearsay testimony was properly admitted, it is not believable because too many details were the same in the testimony of several witnesses. Well-established case law holds that issues of credibility are to be determined by the trier of fact. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) Furthermore, the case on which defendant relies to support his argument of too much consistency is not persuasive as it involved (in addition to consistencies) a number of witnesses who significantly changed their trial testimonies from those given earlier, as well as a number of inconsistent details. (People v. McCarthy (1981), 102 Ill. App. 3d 519, 430 N.E.2d 135.) Defendant also maintains that the hearsay testimonies at issue improperly bolstered the testimony of L.C. This contention is in direct opposition to the statutory provision allowing testimony that a corroborative complaint was made by a child victim. Ill. Rev. Stat. 1987, ch. 38, par. 115 — 10(b)(2)(B).

Defendant finally argues that the record as a whole does not support the factual findings of guilt beyond a reasonable doubt of criminal sexual assault and aggravated criminal sexual assault. In support of this position, defendant raises the testimony of Dr. Gonzalez that L.C. told him a “man pulled her pants down and put his finger on her genitals” (emphasis added), yet she testified and told her sister and mother that the man had put his finger in her vagina. The State maintains, and we agree, that even if defendant’s finger was “on” the victim’s genitals, such contact would still be sufficient to come within the statutory definition of sexual penetration, which includes “any intrusion, however slight.” (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 12(f).) Additionally, defendant suggests that the redness to the victim’s vaginal area could have been caused by the victim “herself scratching, playing, and falling and hurting herself.” There is, however, no evidence in the record to support this theory. Defendant argues that there was no presence of semen. However, the presence of semen is not necessary to prove penetration. (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 12(f).) Defendant also contends that there was no evidence that anyone saw him in the yard and that no fibers or hair samples were found which would identify the defendant. Even though such evidence would have made for a stronger case against the defendant, we cannot say that the victim’s identification of him as “Quido,” “Quiro,” “Ricky,” or “Ricardo,” as well as the corroborative complaint testimony of Mrs. Flores (who testified that “Quiro” was an expression used to describe the defendant), was insufficient to convict. Defendant further asserts that all statements taken by the police came from Mrs. Flores. The fact that Mrs. Flores did act as an interpreter for L.C. during police interviews, and did furnish some of the requested information directly to the police, was fully developed at trial and goes to the weight and credibility of the testimonies admitted.

Accordingly, after viewing all of the evidence admitted in the light most favorable to the prosecution, we conclude that a rational trier of fact could have found the essential elements of the crime (that defendant was 17 years old or over and committed an act of sexual penetration with a five-year-old child) beyond a reasonable doubt. If, on remand, it is determined that the corroborative hearsay testimonies meet the requisite reliability demands, defendant’s conviction is affirmed. If, however, the corroborative hearsay statements are found to be inadmissible, then a new trial is required to reweigh the evidence against defendant.

Defendant also contends that error occurred because the jury instructions and verdict forms were generic and failed to specify the individual act or acts upon which the verdict was based. He argues that because the instructions and verdict forms did not specify the individual acts upon which they were based there was a possibility that the verdict was based on one of the alleged acts (penis-vagina contact) despite a prior directed finding of not guilty as to that act. In response, the State maintains that there was no error in jury instructions and, additionally, that any error would have been waived by defendant’s failure to object at trial and in a post-trial motion. While Supreme Court Rule 451 does provide that substantial defects in instructions are not waived, “if the interests of justice require,” this exception has been applied to correct grave error or when cases are so factually close that fundamental fairness requires proper instruction. (87 Ill. 2d R. 451(c).) Assuming, arguendo, that defendant’s objections have not been waived, we find that any error in instructions is harmless. In the case at bar, the court instructed the jury on the elements of each offense — aggravated criminal sexual assault and criminal sexual assault — as well as the definitional instruction for sexual penetration. Defendant contends that the specific conduct constituting penetration is also an element of the offense and as such should have been included in the jury instructions. Illinois case law provides that the type of sexual penetration is not an element of the offense, and its inclusion in the indictment is merely surplusage. (People v. Foley (1990), 206 Ill. App. 3d 709, 565 N.E.2d 39.) If the statutory language used describes specific conduct, it is unnecessary for the indictment to specify the exact means by which the conduct was carried out. The State need only prove that a type of sexual penetration occurred beyond a reasonable doubt. (Foley, 206 Ill. App. 3d at 718, 565 N.E.2d at 46.) Defendant, however, maintains that because three individual acts of sexual penetration were specified in the indictment, and that one of these was directed out without the knowledge of the jury (penis/vagina contact), the jury might have found him guilty of that act. Defendant also argues, though unpersuasively, that given the generic instructions, the jury may have found him guilty of two counts based on the same conduct. Since no testimony regarding penis/vagina contact was presented at trial, and closing arguments focused on the other two remaining sexual acts, we cannot see how the jury would have found defendant guilty on this charge. Furthermore, case law supports the fact that sexual acts themselves are not required to be detailed in the instructions. (Foley, 206 Ill. App. 3d 709, 565 N.E.2d 39.) Therefore, we cannot find that the surplusage in the indictment combined with the “generic” but appropriate jury instructions prejudiced defendant in any way.

Defendant finally argues that the trial court abused its discretion in sentencing him to 46 years in the Department of Corrections. He contends that the court erred in considering the young age of the victim as evidence in aggravation, as such factor is one of the elements of the offense of aggravated criminal sexual assault. However, the State maintains and Illinois case law interpreting the statutory extended sentencing provisions supports the consideration of the victim’s age in the case at bar. (People v. Ferguson (1989), 132 Ill. 2d 86, 547 N.E.2d 429; People v. Coleman (1990), 205 inn. App. 3d 567, 563 N.E.2d 1010.) In Ferguson, the Illinois Supreme Court stated, in referring to section 5 — 5—3.2(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005—5—3.2(c)), that it considered this section as an example of clear legislative intent to permit a double enhancement of the penalty. (Ferguson, 132 Ill. 2d 86, 547 N.E.2d 429.) Coleman followed the guidelines set out in Ferguson and found that if (following its remand for a new trial) defendant was again found guilty of aggravated criminal sexual assault, the consideration of the victim’s age as an aggravating factor in imposing an extended-term sentence would be appropriate even though the victim’s age was an element of the offense itself. (Coleman, 205 Ill. App. 3d 567, 563 N.E.2d 1010.) Additionally, the court considered other aggravating factors in imposing the extended sentence, one of which was defendant’s criminal record consisting of three major felony convictions within a 10-year period.

Defendant also contends that the trial judge erred in setting the extended term by considering that the jury found the defendant guilty of penis/mouth penetration, because from the generic jury instructions it is impossible to tell what acts the jury actually considered. In this regard we note that the objected-to comment of the trial judge — that there is “nothing more disgusting” — was based on the evidence presented at trial. (L.C. had testified that defendant put his penis in her mouth and told her that “milk would come out.”) Furthermore, the record as a whole, including the other aggravating factors, supports the judge’s determination and imposition of sentence. Defendant further maintains that the sentence of 46 years, which the trial judge fashioned so that he would stay in the penitentiary until he is too old to commit these types of crimes (defendant was 17 years old at the time of sentencing and presumably would be incarcerated under this sentence until he was 60), was not based on reliable, accurate information, as defendant had not been convicted of any other sex-related crimes. Again, our review of the sentencing hearing reveals that the trial judge considered the record as a whole, including defendant’s past felony convictions. We cannot say that because none of these involved similar sex offenses the sentence imposed was unwarranted. Neither can we find that the judge’s remarks exhibited such prejudice or disregard for the law so as to warrant reversal. See People v. Bolyard (1975), 61 111. 2d 583, 585, 338 N.E.2d 168 (which the Illinois Supreme Court reversed and remanded, because the remarks of the trial judge indicated that he had refused to consider probation (which was statutorily authorized as a sentencing alternative) because he felt that the offense charged (taking indecent liberties with a child) was the “most sinful, reprehensible act of all offenses”).

Accordingly, for the reasons expressed herein, we remand to the trial court for the purpose of holding a hearing to determine the reliability of the hearsay statements admitted pursuant to section 115— 10(aX2). (111. Rev. Stat. 1989, ch. 38, par. 115 — 10(a)(2).) If, the trial court determines that such statements meet the criteria for reliability as defined by Wright, then defendant’s conviction and sentence are affirmed. If, on the other hand, it is determined that the out-of-court statements are not reliable, then defendant’s conviction and sentence are reversed and the case remanded for a new trial.

Remanded with instructions.

MURRAY and COUSINS, JJ., concur.

      We note that when the trial judge granted defendant’s motion for a directed verdict on this count, the State made a motion in limine to preclude defense counsel from mentioning to the jury that some counts had been dismissed out. Not only did defense counsel not object at this point, but replied that he had no intention of “doing that” (alluding to the dismissed out counts) anyway.

       Justice Cousins has read the briefs and listened to the tape in this appeal in place of Justice Lorenz, who has retired.


source: Caselaw Access Project

author: JUSTICE KNECHT

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PRENTICE TAYLOR, Defendant-Appellant.
    Fourth District
    No. 4 — 92—0625
    Argued March 23,1993.
    Opinion filed April 22,1993.

      Daniel D. Yuhas and Jeffrey D. Foust (argued), 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 Denise M. Ambrose (argued), all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

After a jury trial in Champaign County circuit court, defendant, Prentice Taylor, was found guilty of public indecency. (Ill. Rev. Stat. 1991, ch. 38, par. 11— 9(aX2).) He appeals his conviction, arguing he was denied a fair trial because (1) the State’s opening statement referred to other crimes by him; (2) testimony indicated his photograph provided to, and identified by, the victim was a “booking photograph”; and (3) the State’s closing argument indicated the arresting officer immediately knew he committed the crime based on the victim’s description of it. According to defendant, evidence of other crimes was not admissible because the State did not proffer sufficient evidence to permit such evidence under the modus operandi exception. We reverse defendant’s conviction and remand for a new trial.

I. Facts

In January 1992, defendant was charged by information, alleging that on January 1, 1992, he stood in the doorway of the rest room of a Super Gas station located at 507 West University in Urbana, Illinois, and knowingly exposed his sex organ in a lewd manner with the intent to arouse his sexual desires.

In opening remarks, the prosecutor indicated the police officer who arrived at the scene had an idea about who the perpetrator was because of the victim’s description of him. The prosecutor stated:

“As soon as [Jameson] or — excuse me — as soon as the defendant leaves, [Jameson] ended the call with the other person that works for Super Gas and called the police right away. Within minutes, the Urbana police officer, Andrew Charles[,] came to the Super Gas Station and he tried to locate the defendant and he was unable to find defendant. While Officer Charles was at the gas station, the telephone rang again. [Jameson] picked it up. It was the defendant. He said something to the effect, and you will hear [Jameson’s] testimony here today, something to the effect that why did you call the police. She handed the phone immediately over to Officer Charles[,] who at that time had an idea as to who the defendant was, because of her description of the defendant to Officer Charles and then he hung up. [Jameson] at that time also told Officer Charles that she would have no problem identifying the defendant. So, that’s [Jameson]. You will hear from [Jameson] here today. You will also hear from Officer Charles. He will testify that he recognized [Jameson’s] description of the defendant right away. Also Officer Charles had knowledge of defendant.”

The trial judge sustained defense counsel’s objection to the preceding remarks; however, he overruled defense counsel’s objections to the following observations made next by the prosecutor:

“Also, as to [Jameson’s] description to Officer Charles of what happened that evening, he had a better idea as to who the defendant was. * * *
Who the defendant was and who specifically was standing at the bathroom on January 1st while [Jameson] was watching him stroke his penis.”

Kimberly Jameson testified she was a salesclerk for Super Gas located on University Avenue in Urbana. On January 1, 1992, at 7 p.m. she received a telephone call from a man who said his name was Andrew. He told Jameson he would arrive at the station in 15 minutes, go into the rest room, crack the door open, and “give [Jameson] a show.” The caller also told her he had been at the station earlier in the week and had tried to touch her stomach. Jameson was eight months pregnant at that time.

Fifteen minutes later, a man arrived at the station and entered the rest room, which was in a separate building approximately 15 feet away. The station was brightly lit. Jameson looked out the window of the building where she was stationed and saw the man open the door, pull his pants down and begin stroking his penis.

Jameson had telephoned the manager of the Super Gas station across town to apprise him of the phone call. She remained on the phone while the man was at the station so the manager could call the police if the perpetrator threatened her. Jameson observed the man for approximately five minutes. No customers entered the station during this time. When the man departed from the rest room, he motioned for Jameson to come to him. She hung up the phone and immediately called the Urbana police department.

Officer Charles arrived a few minutes later. He unsuccessfully searched the vicinity for the suspect. Jameson received a call from a man who asked her why she phoned the police. The caller stopped talking when Jameson handed the phone to Charles. Jameson informed Charles she could identify the man and she provided him a description.

The prosecutor asked Charles what he did after Jameson provided defendant’s description to him. Charles stated the following before defense counsel’s objection was sustained and an offer of proof outside the jury occurred: “Based upon her description of the suspect and the events that had occurred reminded me of several other — .”

On the offer of proof, Charles testified that based on Jameson’s description of the event and the suspect, he believed the perpetrator might be defendant. Charles testified he had been involved in three additional incidents involving similar conduct by defendant. These incidents occurred at American Nursing Home, Royal Fontana Nursing Home, and Carle Hospital. According to Charles, the circumstances of these incidents were the same, apparently, as the incident at issue:

“The suspect called the victim before they [sic] showed up. Showed up very promptly and the wording is similar, about I am going to put on a show or some sort of show being put on and *** they are all almost on a direct line from [defendant’s] house going across town.”

The prosecutor explained she intended to introduce copies of defendant’s convictions for public indecency and the officer’s testimony about the facts surrounding those convictions to prove circumstantial evidence of defendant’s identity under the modus operandi exception to the general rule excluding other crimes evidence. The prosecutor later indicated defendant had recently been convicted of only one public indecency charge for the incident which occurred at the Royal Fontana Nursing Home. The additional indecency charges had been dismissed in exchange for guilty pleas in other cases.

Defense counsel objected on the grounds of relevance and contended the danger of prejudice by such evidence outweighed any probative value. The trial judge concluded there were distinctive features in each case for the modus operandi exception to apply, but concluded the officer’s proposed testimony and evidence of defendant’s conviction was inadequate to establish the requisite details of the other incidents without testimony from the victims of the other cases.

When the jury was returned to the courtroom, the trial judge explained he was sustaining defense counsel’s objection to Charles’ testimony. Charles’ testimony continued. After Jameson described the perpetrator, Charles returned to the police station and retrieved photographs to show Jameson. Jameson had described the perpetrator as a black male in his thirties, of medium height and build. Charles returned to show Jameson the photo lineup. Over defense counsel’s objection, Charles testified he covered the bottom third of the photographs with paper because they were booking placards.

After he arranged the photo spread, he told Jameson she could look at the photographs as closely as she liked but that she could not pick them up from the counter. As Jameson approached the photo array, she identified defendant’s photograph as the perpetrator. Charles asked her to look again and tell him how certain she was of her identification. Over defense counsel’s objection, Jameson testified she was 100% certain defendant was the perpetrator.

On the second day of trial, the prosecutor indicated she had subpoenaed the complaining witness in one of defendant’s public indecency cases that was dismissed pursuant to plea negotiations. The alleged subpoena does not appear in the record on appeal. The prosecutor abandoned her attempt to offer other crimes evidence and rested. Defendant’s motion for a directed verdict was denied.

Defendant testified that on January 1, 1992, between 6 and 8 p.m„, he was at his mother’s home with Pamela Emery. They were watching television and eating. He never left the house on January 1. He denied he and Emery drank alcohol that night and explained his mother does not allow alcohol in her home. He conceded he was convicted of a felony offense in Champaign County in November 1987.

Emery testified she was in defendant’s company from December 29, 1991, to January 4 or 5, 1992. She knew defendant for three or four years and considered him to be a casual friend. They had sexual relations in the past. Emery testified she had been convicted of misdemeanor theft and a felony offense. Over objection, the prosecutor was allowed to elicit testimony indicating Emery was unemployed. Emery testified on January 1, she and defendant watched a football game and a few horror movies and then listened to music. Contrary to defendant’s testimony, Emery stated she and defendant consumed alcohol on January 1.

At the instructions conference, the prosecutor withdrew the limiting instruction regarding other crimes evidence because she had not introduced evidence of defendant’s modus operandi. During closing argument, defense counsel’s objection was overruled when the State argued: “[a]nd just by the description, the police officer knew who it was that called her and knew who it was that performed *** [w]ho was performing this lewd act in front of [Jameson].” At a later point, the following argument took place during closing:

“[Prosecutor]: *** Officer Charles also knew who the defendant was.
[Defense counsel]: Objection.
[THE COURT]: Objection will be sustained. That line of argument, the jury is to disregard it.
[Prosecutor]: Officer Charles was given more than just a description of the defendant that evening. He was also given a description of the entire incident. The phone call where the gentlemen on the phone or the male on the phone *** said I am going to come over and put on a show. It was from all of this.
[Defense counsel]: Objection.
[THE COURT]: Objection overruled.
[Prosecutor]: It was from all of this that Officer Charles had an idea.
[Defense counsel]: Objection.
[THE COURT]: Objection overruled.
[Prosecutor]: Who the person was that masturbated in front of [Jameson] that day. There is no question about it. It was defendant. Thank you.”

II. Analysis

Although the State does not argue this as a basis of waiver of each argument raised by defendant on appeal, we note all of defense counsel’s objections at the trial level were general. At trial, defense counsel merely stated “objection” to each alleged error and indicated no basis for each alleged error. At the hearing on defendant’s motion for a new trial, counsel was provided an opportunity to more fully discuss her alleged errors which were indicated in her motion, again, only as errors. No reasons were provided about why these rulings were wrong. The prosecutor even indicated she was uncertain what defense counsel’s objection was to Charles’ testimony related to the booking placards. Defense counsel made no attempt to clarify her objection. Defense counsel did indicate during this hearing that the objection to the prosecutor’s remarks in closing was because the remarks implied Charles knew about defendant’s prior convictions and this suggested defendant had a propensity to commit the alleged offense.

Failure to properly inform the trial judge of the specific basis for an objection may result in waiver of the issue on appeal. (People v. Garcia (1983), 97 Ill. 2d 58, 86, 454 N.E.2d 274, 285-86; People v. Pastorino (1982), 91 Ill. 2d 178, 192, 435 N.E.2d 1144, 1151.) However, we choose to address the alleged errors because the evidence is closely balanced and these errors may have resulted in denying defendant a fair trial. People v. Enoch (1988), 122 Ill. 2d 176, 199, 522 N.E.2d 1124, 1135-36.

The State argues even if the prosecutor’s remarks and Charles’ testimony caused the jury to infer defendant had been previously arrested, the prejudicial effect was minimized because defendant testified he had previously been convicted of a felony. It directs us to this court’s reasoning in People v. O’Toole (1992), 226 Ill. App. 3d 974, 991-92, 590 N.E.2d 950, 962. However, in O’Toole, defendant’s objection was sustained and the jury was instructed to disregard the improper reference to defendant’s criminal record. Another important factor in this case is that the testimony and remarks complained of did not merely intimate defendant had a criminal past. They suggested defendant’s criminal past involved conduct similar to that he was currently charged with.

The State also directs us to People v. Sayles (1985), 130 Ill. App. 3d 882, 889-90, 474 N.E.2d 870, 876-77, arguing any prejudicial effect is far outweighed by the overwhelming evidence in this case. However, in Sayles, this court approved the admission of other crimes evidence as relevant and only noted if this evidence were prejudicial, this concern was outweighed by the overwhelming evidence against defendant.

Contrary to the State’s contention, we do not view the evidence in this case as overwhelming. The State’s case consisted of testimony by the victim of the offense. The victim identified defendant in a photo lineup and in court the day of trial. However, the State provided no additional evidence linking defendant to the crime, such as that defendant owned similar clothing to that worn by the perpetrator on the night in question, or voice identification. Nor did the prosecutor properly present evidence of other crimes based on the modus operandi theory.

Defendant testified he was at his mother’s home the entire night the incident occurred. Defendant’s acquaintance, Emery, corroborated defendant’s testimony. Although Emery could not remember specifically what they viewed on television on January 1, neither this potential weakness in her testimony, nor the fact Emery was unemployed or previously had sexual relations with defendant, defeats defendant’s claim of innocence. The evidence was closely balanced.

A. Opening Remarks

Defendant initially contends it was error to allow the prosecutor to argue in her opening remarks that Charles “had an idea about the identity of the perpetrator because of Jameson’s description of the suspect.” According to defendant, the prosecutor was required to establish the other crimes evidence was admissible before she could comment on Charles’ recognition based on the victim’s description.

The State argues defendant has waived review of this alleged error because although defense counsel objected to the remarks, she did not raise this as error in defendant’s post-trial motion. Failure to do so can result in waiver of the issue on appeal. (Enoch, 122 Ill. 2d at 186, 522 N.E.2d at 1130; People v. Jones (1991), 222 Ill. App. 3d 206, 209-10, 583 N.E.2d 623, 626.) As previously discussed, we choose to evaluate whether the alleged errors amount to plain error and whether defendant was denied a fair trial because of these errors.

The State contends because the prosecutor’s remarks in opening argument were potentially admissible when they were made, defendant’s accusation of intentional prosecutorial misconduct fails. The purpose of the opening statement is to inform the jury of evidence each party expects to prove at trial. (People v. Eichelberger (1989), 189 Ill. App. 3d 1020, 1030, 546 N.E.2d 274, 280.) It can be prejudicial error for counsel to relate inadmissible evidence in opening remarks with apparent disregard for its subsequent inadmissibility. People v. Melock (1992), 149 Ill. 2d 423, 457, 599 N.E.2d 941, 956.

Evidence of other crimes or wrongful misconduct is inadmissible if it is only relevant to establish the defendant’s propensity to commit crimes. (People v. King (1986), 109 Ill. 2d 514, 530, 488 N.E.2d 949, 958; People v. Crayton (1988), 175 Ill. App. 3d 932, 945-46, 530 N.E.2d 651, 660.) Such evidence is admissible, however, to prove defendant’s modus operandi. (People v. Evans (1988), 125 Ill. 2d 50, 82, 530 N.E.2d 1360, 1374; O’Toole, 226 Ill. App. 3d at 991, 590 N.E.2d at 961.) The State concedes it did not proffer sufficient evidence to support Charles’ testimony under the modus operandi theory. The prosecutor conceded this during the instructions conference when she withdrew a related instruction because she had not provided a sufficient basis for this exception to the other crimes evidence rule.

During opening remarks, the prosecutor may have anticipated she had a sufficient basis to seek admission of other crimes evidence. She initially intended only to submit records of defendant’s convictions of similar crimes and have Charles testify about the additional incidents. However, when the trial judge informed her she would also have to provide testimony from past victims of these similar occurrences, the prosecutor allegedly subpoenaed a past victim who did not appear the second day of trial. Despite the State’s failure to document this subpoena, the record of the discussion between the prosecutor and the trial court during the offer of proof supports the view the prosecutor may reasonably have thought she would be permitted to submit such evidence.

Better practice in seeking to admit other crimes evidence would have been to seek authorization for its admission before trial or opening remarks. However, that she included the complained-of remark, which may have suggested defendant had committed previous crimes, without seeking a pretrial ruling does not automatically amount to denial of a fair trial for defendant.

The State alternatively contends these references in the prosecutor’s opening and closing arguments were meant merely to explain how Charles conducted his investigation and to describe the events leading to defendant’s identification and were unrelated to other crimes evidence against defendant. Despite the State’s characterization of the prosecutor’s intent in her opening remarks, the remarks suggested far more than the procedure Charles used in assisting the victim in identifying defendant.

The State’s brief nearly concedes Charles knew how to quickly apprehend defendant because of defendant’s previous police contacts for the same kind of activity when it states the victim could provide Charles only with a description which would fit many men. Nonetheless, “on the basis of the description of the event and the suspect, Officer Charles managed to compile a photographic array that included the perpetrator’s photograph within an hour and a half of the event.”

The prosecutor did not need to state that from Jameson’s description, Charles had a better idea as to “[w]ho the defendant was and who specifically was standing at the bathroom on January 1st while [Jameson] was watching him stroke his penis” (emphasis added) to communicate the speed with which Charles apprehended defendant. However, the statement does not necessarily amount to a declaration Charles knew the perpetrator was defendant because of his previous record. Rather, it suggests Charles knew defendant’s description and perhaps other characteristics. Charles may have known defendant from contacts other than from defendant being accused of crimes.

Standing alone, the complained-of remarks in the prosecutor’s opening arguments do not require reversal. However, we will consider them in conjunction with the additional alleged errors.

B. Defendant’s Identification

Defendant next argues it was error for the trial judge to permit testimony by Charles regarding how he covered the bottom third of the photographs he showed to Jameson because they were the booking placards. Defendant cites People v. Arman (1989), 131 Ill. 2d 115, 545 N.E.2d 658. The State contends no error occurred because testimony about the use of mug shots during an investigation may be introduced to show how a defendant was initially linked to the offense. The State also relies on Arman for its argument.

When identification is a material issue in a case, testimony related to the use of mug shots in the investigation may be introduced to show how a defendant was initially linked to the offense. However, such evidence is “not without limits,” and if it tends to inform the jury the defendant committed an unrelated, criminal act, it should not be permitted. Arman, 131 Ill. 2d at 123, 545 N.E.2d at 662.

In Arman, the court concluded the officer’s testimony, which indicated the photograph came from the Chicago police department’s identification files, informed the jury the person depicted had been previously arrested and, therefore, should not have been admitted. However, the court upheld the defendant’s conviction because it concluded the result would have been no different had the photograph not been admitted. Also of importance to the outcome in the present case is that in Arman, the trial judge had sustained defendant’s objection to this testimony and later admonished the jury to disregard questions to which objections had been sustained. Arman, 131 Ill. 2d at 184, 545 N.E.2d at 662-63.

Although in this case Charles could have testified he retrieved photographs from the police station for the victim to view, Charles’ indication he covered the booking placards at the bottom of the photographs was completely unnecessary to the issue of identification or the procedure Charles used in obtaining defendant’s identification from the victim.

The additional cases cited by the State are distinguishable. In several cases cited, the information provided to the jury about defendant’s identification could have indicated something other than that defendant had a prior record or had been arrested. People v. Gordon (1981), 94 Ill. App. 3d 764, 767, 419 N.E.2d 66, 69 (fingerprints may be on file with police for numerous reasons); People v. Prewitt (1987), 160 Ill. App. 3d 942, 949, 513 N.E.2d 977, 982 (fingerprints may be on file with police for numerous reasons and defendant did not object to testimony or seek to have jury instructed to disregard); People v. Foster (1980), 82 Ill. App. 3d 634, 638, 402 N.E.2d 943, 946 (police photograph does not imply defendant has a police record).

People v. Carr (1992), 225 Ill. App. 3d 170, 175-76, 587 N.E.2d 543, 548, is also distinct because the testimony at issue in this alleged forgery case was provided by a police officer and related to similar checks being cashed in the same manner in a different locality. The court reasoned this testimony did not intimate defendant was involved in the similar incidents. Unlike Carr, Charles’ testimony indicating defendant’s photograph from the police department had a booking placard clearly indicates defendant had been previously arrested.

This case is more akin to the second district ruling in People v. Moscatello (1969), 114 Ill. App. 2d 16, 30, 251 N.E.2d 532, 538, in

which the court concluded the prosecutor’s characterization of defendant’s photo as a “mug shot[ ]” was improper but not reversible error because the trial judge promptly sustained defense counsel’s objection, the photo was not admitted into evidence, and no additional reference was made to the defendant’s criminal record.

People v. Sledge (1989), 183 Ill. App. 3d 1035, 1047-48, 539 N.E.2d 1312, 1319-20, is also similar to this case. In Sledge a police detective characterized the defendant’s second photo lineup as “booking photographs.” Although improper, the court concluded this did not amount to reversible error because the trial judge held an extensive hearing outside the jury’s presence to determine the substantive damage caused by the remark. The trial judge admonished the jury to disregard the reference to the photo and no additional references were made to the type of photograph used or to imply defendant had a criminal record.

Similarly, in the first district case, People v. Pendleton (1982), 104 Ill. App. 3d 1104, 1108, 433 N.E.2d 1076, 1080, the trial judge admonished the prosecutor out of the jury’s presence that she should refrain from again using the term “mug shots” in referring to defendant’s photograph. When a police officer later mentioned “mug shots” from “mug books” in his testimony about photographs of defendant, the trial judge struck this terminology the third time it was used. The appellate court concluded this was not reversible error because in each instance the trial judge took precautionary measures to prevent further mention of these terms.

Although in the present case the photo was not admitted into evidence, the trial judge rejected defense counsel’s objection and the prosecutor’s comments in his opening and closing remarks suggested defendant had previously been arrested. The Illinois Supreme Court has indicated “[t]he error in revealing a prior arrest is obvious.” (People v. Warmack (1980), 83 Ill. 2d 112, 128, 413 N.E.2d 1254, 1262.) However, we must evaluate whether the outcome would have been different if this testimony were not admitted or defense counsel’s objection was sustained. (Arman, 131 Ill. 2d at 124, 545 N.E.2d at 662; Warmack, 83 Ill. 2d at 128-29, 314 N.E.2d at 1262.) Considering Charles’ testimony and the prosecutor’s opening and closing remarks, defendant was denied a fair trial.

This case presents different circumstances than People v. Eston (1977), 49 Ill. App. 3d 747, 751, 364 N.E.2d 609, 612, where this court concluded a police officer’s reference to “mug shots” of defendant during his testimony did not amount to plain error because the prosecutor did not elicit the remark, no mug shots were produced in court, and the prosecutor did not refer to mug shots. Charles’ reference to a booking placard on the photograph of defendant shown to the victim again interjected the “other crimes” theme and, while standing alone it would not amount to plain error, we will consider it in conjunction with defendant’s last contention of error.

C. Prosecutor’s Closing Remarks

Defendant finally argues the prosecutor committed error by commenting in closing argument on defendant’s prior crimes. A prosecutor has great latitude in closing argument. The trial judge’s determination about the propriety of remarks should be followed absent a clear abuse of discretion. A prosecutor may comment on the evidence and suggest inferences which are deducible from the evidence even if they are unfavorable to the defendant. (People v. Johnson (1992), 149 Ill. 2d 118, 145, 594 N.E.2d 253, 267; People v. Roe (1992), 228 Ill. App. 3d 628, 638, 592 N.E.2d 596, 603.) Although a remark may exceed the bounds of reason, the verdict should not be disturbed unless the remark caused the defendant substantial prejudice. Johnson, 149 Ill. 2d at 145, 594 N.E.2d at 267; People v. Baptist (1979), 76 Ill. 2d 19, 29, 389 N.E.2d 1200, 1205.

The trial judge properly sustained defendant’s objection when the prosecutor stated Charles knew who the defendant was. However, the judge overruled the objection after the prosecutor stated that from the description of the entire incident, Charles had an idea who the person was that committed the offense and that person was defendant. The language in the second exchange also suggested to the jury that Charles suspected defendant was the perpetrator because defendant had previously been involved in similar incidents. Also, the trial judge earlier permitted the prosecutor to state in her closing remarks that Charles knew who called the victim and performed the lewd act just by the victim’s description.

Moreover, although the jury was admonished to disregard after defense counsel’s objection, Charles had initially told the jury that when he received the victim’s description of the incident he was reminded of “several other ***.” The prosecutor’s closing remark intimated to the jury Charles identified defendant as the perpetrator because defendant had previously been involved in similar conduct. This suggestion impaired the integrity of the trial process.

This statement, combined with the opening remark, the booking placard remark, and the closing remarks, strongly suggested defendant had previously been arrested for similar conduct. Under the circumstances in this case, such evidence may have overpersuaded the jury to convict defendant merely because he was a bad person deserving of punishment rather than on the basis of the facts related to the offense for which he was on trial. People v. Lindgren (1980), 79 Ill. 2d 129, 137, 402 N.E.2d 238, 242.

D. Conclusion

The trial judge sustained several of defense counsel’s objections. He also instructed the jury that opening and closing statements were not evidence and the jury should disregard any remarks made by counsel which were not based on evidence. However, the proceedings were fatally flawed due to actions by the prosecutor. The jury may have reached a different result if it had not heard the prosecutor’s remarks on top of Charles’ testimony. People v. Mullen (1990), 141 Ill. 2d 394, 407, 566 N.E.2d 222, 228; Baptist, 76 Ill. 2d at 28-30, 389 N.E.2d at 1205.

The prosecutor has a duty to ensure defendant receives a fair trial. Defense counsel’s failure to properly object does not alleviate that duty. (People v. Oden (1960), 20 Ill. 2d 470, 483, 170 N.E.2d 582, 589; People v. Dunsworth (1992), 233 Ill. App. 3d 258, 269, 599 N.E.2d 29, 36; People v. Graham (1989), 179 Ill. App. 3d 496, 508, 534 N.E.2d 1382, 1390.) This duty was not upheld. If the prosecutor intended to produce other crimes evidence against defendant, she should have filed a motion in limine before trial seeking a ruling on such evidence. The prosecutor in this case made remarks which were prejudicial to the defendant’s trial. She also should have instructed Charles regarding proper testimony about defendant’s photograph identification by the victim. We do not suggest the prosecutor engaged in purposeful misconduct, but the prosecutor’s conduct compels this court to reverse defendant’s conviction.

Although each error standing alone would not require reversal, the impact of the error interjecting the other crimes theme three different ways, convinces this court defendant may have been denied a fair trial. See People v. Kidd (1992), 147 Ill. 2d 510, 544-45, 591 N.E.2d 431, 447; People v. Smith (1990), 141 Ill. 2d 40, 67, 565 N.E.2d 900, 911.

Reversed and remanded.

COOK and GREEN, JJ., concur.