author: JUSTICE CAMPBELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY BARLOW, Defendant-Appellant.
    First District (1st Division)
    No. 1 — 86—3309
    Opinion filed June 26, 1989.
    Rehearing denied October 11, 1989.

      Randolph N. Stone, Public Defender, of Chicago (Mark H. Kusatzky and Aaron Meyers, Assistant Public Defenders, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, James E. Fitzgerald, and Lauren A. Freeman, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Following a jury trial, defendant, Larry Barlow, was convicted of aggravated criminal sexual assault on T.L., his 10-year-old stepdaughter, and sentenced to a prison term of 20 years. On appeal, defendant contends that: (1) the methods and procedures used to charge him violated his constitutional rights of due process by denying him notice of the crimes of which he was accused and by denying him the right to present a defense; (2) the trial court erred in granting Illinois Pattern Jury Instructions, Criminal, No. 3.01 (2d ed. 1981) (hereinafter IPI Criminal 2d) because it relieved the State of its burden of proving the date of the alleged incident, thereby denying defendant the opportunity to adequately prepare a defense; (3) the trial court erred in permitting the State to introduce other crimes evidence when there was no other crime; (4) the trial court’s erroneous evidentiary rulings deprived defendant of the opportunity to present a reasonable defense; and (5) the State failed to prove defendant guilty of aggravated criminal sexual assault beyond a reasonable doubt. For the following reasons, we affirm the judgment of the trial court.

The record sets forth the following facts. On March 25, 1986, defendant was charged under indictment No. 86 — 3586 with aggravated criminal sexual assault predicated on defendant’s alleged act of forcefully inserting his finger into T.L.’s vagina on or about March 1, 1986. At the same time, defendant was also charged under indictment No. 86 — 3587 with aggravated criminal sexual assault predicated on defendant’s alleged act of forcefully committing an act of sexual penetration between his penis and T.L.’s vagina on or about March 2, 1986, and continuing through March 3, 1986. Originally, the State had elected to proceed on indictment No. 86 — 3586. However, on October 10, 1986, the State changed its election to proceed on indictment No. 86 — 3587. Defense counsel objected on the grounds that the State’s bill of particulars stated that the events occurred about March 1, 1986, through March 3, 1986, which differed from the dates on indictment No. 86 — 3587. Because of this difference, defense counsel contended that she had insufficient information to proceed on the indictment. In response, the State requested leave to file an amended bill of particulars, stating that the incident had occurred between March 1 and March 5, 1986. The State explained that this “spread of the days” was the best it could do with the information it had. The State further explained that the facts regarding the offense would not change. Thus, the State argued that there would be no prejudice to the preparation of defendant’s defense. The court granted the State’s leave to amend and continued trial for two weeks to allow the defendant to prepare his defense regarding the extended time period.

On the day trial was to commence, prior to jury selection, the State amended its indictment with respect to the occurrence dates to conform with the previously amended bill of particulars. In addition, the State filed a notice of intent to use proof of other crimes. Specifically, the State intended to use proof of the finger penetration act which was the subject of indictment No. 86 — 3586. After verifying that the finger penetration act had involved the same parties at the same location as the crime charged, the trial court allowed introduction of the other crime.

At trial, Dr. Suresh Shah, emergency room physician at South Chicago Community Hospital, testified that on March 5, 1986, approximately 11 p.m., he examined T.L. He conducted a special examination to determine if there had been any sexual intercourse or trauma to T.L.’s genital area or internal organs. Dr. Shah had observed that T.L.’s hymen had been ruptured, that there was “much more white discharge coming out from the external vaginal orifice,” and that she was nervous and somewhat fearful. Dr. Shah stated that the ruptured hymen was consistent with penetration by a blunt object such as a finger or penis, or it may have been ruptured by riding a bicycle or falling.

On cross-examination, Dr. Shah testified that T.L. had told him that her stepfather, defendant, had put his penis inside of her on Sunday, Monday and Tuesday (March 2, 3 and 4). T.L. also told him that she did not remember any of the details.

Following voir dire of T.L., the trial court found her competent to testify and she took the stand. During direct examination, T.L. stated that in March 1986, she lived with her mother, stepfather, brother and sister in a one-bedroom apartment. T.L. slept with her younger sister on the bottom bunk of a bunk bed and her brother slept on the top bunk. There was also another full-size bed in the room. Her mother and stepfather slept in the living room. T.L. stated that on the afternoon of the first Saturday in March (March 1), while her mother was at the store, defendant asked her to come into the bedroom. He then pulled down her pants and stuck his finger into her vagina. When he finished, defendant told her not to tell anyone, and she went into the washroom and wiped her vagina with a towel.

T.L. further testified that on the night of March 4 into the morning, of March 5, defendant had come into her bedroom. Her brother was at her grandmother’s house that night. Defendant put a pillow over her face, took his clothes off and climbed onto the bed on top of her, and pulled her pants down. When asked if defendant had done anything with his penis, T.L. answered “yes,” but failed to respond to the question asking what he had done. After a few more questions, T.L. stated that defendant’s penis had touched her butt and nowhere else. T.L. then identified her “butt” as her “back.” T.L. also said that defendant had been moving while he was on top of her. The moving part touched her back and his penis went into her butt. When defendant had completed the act, he went to the bathroom. T.L. stated that she started to cry, then fell asleep. When she woke up a short time later, she washed her vagina with a towel. While washing, she noticed some “white stuff” on the back of her thigh.

Later that day, approximately 5:30 p.m., while T.L. was walking down the street with her mother, her mother noticed that something was bothering T.L and asked her about it. At first, T.L. said it was nothing because she was scared that she would be punished. When her mother reassured her that she would not be punished, she told her mother what defendant had done to her. Her mother then took T.L. to the doctor.

On cross-examination, T.L denied telling the nurse at the hospital that defendant “had put his thing inside of [her] on March 2, on March 3, and March 4, always at night”; denied telling the nurse that anal sex had not occurred; denied telling Dr. Shah that defendant “had put his thing inside of [her] on Sunday, Monday, and Tuesday”; and denied having told Dr. Shah that she could not remember any of the details. T.L. could not remember on what dates defendant had worked during the first week in March, but remembered that he had not worked on the first Saturday when the alleged finger penetration had occurred. When TJj.'s mother had asked her about the blood on the towel, she had told her mother that the blood was from her menstrual period.

When asked about the night that defendant had put the pillow over her face, T.L. stated that she could see a little bit around the edge of the pillow. At one point during cross-examination, T.L. stated that she had been lying on her back “at first.” Later, she denied ever turning over onto her stomach. When asked by defense counsel, “So, Larry [defendant] never put his penis in your rectum or in your butt, did he?” the following exchange occurred:

“A. That wasn’t then.

Q. What wasn’t then? He did not put his penis in your rectum during this period?

A. You are just trying to make me lie.

Q. I’m not trying to make you lie. I’m trying to make you tell the truth.

THE COURT: Don’t argue with the witness. [T.L.], answer the questions, just as best you can, but you have to answer the question.

Q. During this period of time that you are telling us today that you say that Larry was in your room, did he ever put his penis in your butt? Yes or no?

THE COURT: Get a tissue, please.

THE SHERIFF: Sure.

THE COURT: [T.L.], did he put his penis in your butt during the period of time that you already told us about? Would you answer the question, [T.L.]? Ask another question please.”

T.L. further testified that she had told the police officers at the hospital that defendant started having sex with her on Sunday (March 2). She denied having told the police that defendant had also had sex with her on Monday and Tuesday (March 3 and 4) nights. T.L. also denied having told the detectives at the hospital that an assault had occurred on March 2 about 2:30 a.m., but admitted telling them that an assault had occurred on March 3 at 5:30 a.m. On redirect, T.L. stated that on the same night defendant had put his penis in her vagina, he had put it in her butt.

Next, C.B., T.L.’s mother, testified that on the night of March 4, 1986, she and defendant had stayed up and talked until about 5 a.m. After going to sleep, she was awakened by a noise at approximately 5:30 a.m. She got up, turned the radio volume down and listened, but did not hear anything else, so she turned the radio volume back up. Defendant was not in the bed at the time. Approximately 6:45 a.m., T.L. came into C.B.’s room and told her that she was getting ready to go to school. This was unusually early for her.

C.B. next saw T.L. at her mother’s house at approximately 5:30 p.m. later that day. When C.B. told T.L. that they were going to go to defendant’s mother’s house, T.L. looked “real funny” and told her that she did not want to go. When C.B. asked T.L. what was wrong, T.L. would not tell her at first. However, when C.B. told her that she would not be punished, T.L. told her that defendant had been “fiddling on her” early that morning and he had pulled his pants down and had put his “thing” in her. She then pointed to her vagina. Later that evening, C.B. took T.L. to the hospital. At the time, T.L. was crying.

At the close of the State’s case in chief, the trial court denied defendant’s motion for a directed verdict. Defendant’s first witness, Chicago police detective Sammie Lacey, testified that on March 5, 1986, he spoke with T.L. at South Chicago Community Hospital. When asked if T.L. had told him that she had had sexual contact with her stepfather on March 1, Lacey replied that, “She didn’t give us the exact date. *** The time was kind of foggy.” Lacey further stated that T.L. “couldn’t distinguish from the dates,” and reiterated that T.L. had been confused about the dates several times. When asked about the dates in his police report, Lacey answered,

“Okay. On these dates she was giving, the little girl herself was not supplying the dates. I believe the mother gave us, you know, those dates that she surmised what dates they happened.”

Lacey further stated that T.L. had told him that there had been three incidents and, based on that information, he and the mother arrived at the dates. On cross-examination, Lacey stated that while he was asking T.L. questions at the hospital, T.L. appeared nervous, somewhat upset and a little afraid to speak to the detectives.

Next, Wilson Cooper, field supervisor for Burns Security, defendant’s employer, testified that pursuant to the company’s final time sheets, defendant had worked the 4 p.m. to midnight shift on March 2, 3 and 4. The records indicated that defendant had not worked on Saturday, March 1 or on Wednesday, March 5.

Chicago police officer Clifford Doyle then testified that he had spoken to T.L. at the hospital in the presence of her mother and a nurse. Doyle stated that T.L. had told him that defendant had started to touch and feel her on Sunday, March 2 and that different sexual things then happened on different nights. On cross-examination, Doyle testifled that T.L. had told him that defendant had had vaginal sex with her.

Next, Sylvia Lizcano, nurse at South Chicago Community Hospital, testified that she had interviewed T.L. at approximately 9 p.m. on March 5, 1986, at the hospital and had described what anal sex and oral sex were to her. T.L. had denied that either had occurred. When queried as to specific dates of the alleged sexual acts, Lizcano stated:

“She did state for three days in a row and at the time, I think— I don’t know if she said Monday, Tuesday, Wednesday, but I wrote it as the dates.
So, she wasn’t telling me, you know, on what specific dates. She just gave me — and it was — I don’t know what day — *** .”

On cross-examination, Lizcano stated that T.L. had been very upset and frightened when at the hospital. Her mother had also been very upset. Lizcano further stated that “it was hard for her to tell us what had happened, and we were in a private room, but she was still very upset and we had to try to get it out.” When T.L. finally began to talk, she told Lizcano that defendant had been coming into her bed for three nights in a row and had put his “thing” inside of her.

As a rebuttal witness, Chicago police officer James O’Rourke testified that on March 13, 1986, he had talked to defendant at police headquarters and had asked him where he had been the first week of March 1986. Defendant had responded that “at certain times of the day, he was home at night.” Thereafter, both sides rested.

Following closing arguments and deliberations, the jury found defendant guilty of the offense of aggravated criminal sexual assault on T.L. Judgment was entered on the verdict and the trial court sentenced defendant to a prison term of 20 years. Defendant’s timely appeal followed.

Defendant first contends that the methods and procedures used for charging him violated his constitutional rights of due process by failing to give him notice of the crimes of which he was accused and by denying him the right to present a defense. Specifically, defendant claims that his ability to prepare and present a defense was fatally impaired when, two weeks prior to trial, the trial court granted the State leave to file an amended bill of particulars, changing the dates of the alleged incident from March 2 and 3 to in the morning between March 1 and March 5. Defendant also claims that the trial court further erred when, on the day trial was to commence, it allowed the State to amend the indictment to conform to the amended bill of particulars. Defendant asserts that the State’s amendment to the indictment was improper because it did not merely cure a formal defect; it altered the charge in a substantial and prejudicial manner. In response, the State asserts that the amendment to the indictment merely cured a formal defect regarding dates of the offense so as to conform the indictment to the amended bill of particulars. The State further contends that the amendment to the bill of particulars did not affect the elements of the charge in any way and gave defendant sufficient notice to prepare his defense as to the new dates.

Section 111 — 5 of the Code of Criminal Procedure of 1963 (the Code) (Ill. Rev. Stat. 1987, ch. 38, par. 111 — 5) provides that an indictment “may be amended on motion by the State’s Attorney or defendant at any time because of formal defects.” It is well recognized that the date of the offense is not an essential ingredient in child sex offenses. (People v. Cregar (1988), 172 Ill. App. 3d 807, 526 N.E.2d 1376.) Thus, a change in dates would not alter the substantive nature of the offense. The State need only establish that the offense charged was committed within the statute of limitations period and prior to the return of the indictment. People v. Olroyd (1929), 335 Ill. 61, 166 N.E.2d 462; People v. Neumann (1979), 76 Ill. App. 3d 112, 394 N.E.2d 901.

In the present case, indictment No. 86 — 3587 initially alleged that the incident had occurred “on or about March 2, 1986, and continuing on through March 3rd, 1986.” The State’s bill of particulars, filed May 9, 1986, indicated that the incident had occurred during the nighttime on or about March 1 through 3, 1986. The amended bill of particulars, filed on October 14, 1986, indicated that the date of the alleged incident was “on or about March 1st through the 5th, 1986, in the morning.” This change was later reflected on the indictment by amendment. We note that there is no statute of limitations issue in the present case and the amended dates precede the return of the indictment. Therefore, we find that the incorrect dates on the original indictment constituted a formal defect which, pursuant to section 111 — 5 of the Code, could be cured by amendment.

Defendant further argues that the date change in the bill of particulars and the indictment deprived him of due process by keeping him “in the dark” as to the nature of the crimes with which he was charged. In response, the State contends that defendant was not denied due process where the charge stated the date as definitely as possible, the date alleged in the indictment was not a material element of the offense, the date was sufficient to show that the offense charged was committed within the statute of limitations period and the date preceded the return of the indictment.

As previously stated, because the date of the offense is not an essential element in child sex offenses (People v. Cregar (1988), 172 Ill. App. 3d 807, 526 N.E.2d 1376), any change in the dates does not alter the nature of the crime charged. Moreover, pursuant to section 111— 3(a)(4) of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 111 — 3(a)(4)), a charge is sufficient if it is in writing and states “the date and county of the offense as definitely as can be done.”

In the present case, the State indicated prior to trial that it had been as specific as to dates as it could be under the circumstances. The record supports this claim. Thus, we find that the amended time period satisfies the requirements of section 111 — 3(a)(4). In making this decision, we are cognizant that this court has recognized that in sex offense cases involving a parent and child, flexibility must be given to the requirement that a certain date be specified as to the occurrence. (People v. Long (1977), 55 Ill. App. 3d 764, 370 N.E.2d 1315.) Accordingly, because the amended dates did not alter the substance of the offense charged and the date complied with statutory requirements, we hold that the trial court properly allowed the State to amend the bill of particulars and the indictment.

Next, defendant contends that the trial court erred in granting IPI Criminal 2d No. 3.01, which relieved the State of the necessity to prove the date of the alleged incident. IPI Criminal 2d No. 3.01, as given by the trial court in the present case, stated:

“The indictment states that the offense charged was committed March 1st through the 5th, 1986. If you find that the offense charged was committed, the State is not required to prove that it was committed on that particular date.”

Defendant contends that IPI Criminal 2d No. 3.01 validates all of the improper denials of the charge previously argued in issue I and improperly “told the jury that the ‘time’ factor was not important.” In response, the State reasserts its position taken with respect to issue I, arguing that the trial court properly gave the instruction where the date alleged in the indictment is not material, and where the State proved that the offense charged was committed within the statute of limitations period and prior to the return of the indictment.

As previously discussed, well-established Illinois law supports the State’s position: People v. Olroyd (1929), 335 Ill. 61, 166 N.E.2d 462; People v. Vaughn (1945), 390 Ill. 360, 61 N.E.2d 546; People v. Neumann (1979), 76 Ill. App. 3d 112, 394 N.E.2d 901. In People v. Olroyd, the Illinois Supreme Court held that the date alleged in an indictment is not material and that the State need only establish that the offense was committed within the relevant statute of limitations period and prior to the date the indictment was returned (the Olroyd test). Subsequently, in People v. Vaughn, defendant, convicted of rape, argued on appeal, inter alia, that jury instruction No. 10 was unfounded . in reason, law and justice. Instruction No. 10 provided:

“10. the Court instructs you that the date of the commission of the offense as charged in the indictment is not one of the material allegations of the indictment and need not be proven as alleged. In this case it is sufficient if any date within three years of the returning of the indictment into Court has been proven.” Vaughn, 390 Ill. at 370.

The Vaughn court found that the Olroyd test had been met and, thus, held that instruction No. 10 had been properly given. The Vaughn court further reasoned that if defense counsel felt the date of the offense should have been more specific, he should have requested a more specific bill of particulars.

Similarly, in People v. Neumann (1979), 76 Ill. App. 3d 112, 394 N.E.2d 901, defendant had objected to the use of IPI Criminal 2d No. 3.01 on the ground that it relieved the State of its burden of proving beyond a reasonable doubt that defendant was in Illinois on the date the crime had been committed. In reliance on Olroyd, the Neumann court found that IPI Criminal 2d No. 3.01 had been properly given.

As previously discussed, in the present case, the State has also satisfied the Olroyd test. Further, on its own volition, two weeks prior to trial, the State provided a revised bill of particulars to defendant stating the specific time period of the offense. In our view, this two-week period was sufficient time for defendant to establish an alibi defense for the amended time period.

Accordingly, because the date of the offense is not an essential element of the offense itself and because the time period set forth in the State’s amended indictment satisfied the Olroyd test, we find that the trial court properly allowed IPI Criminal 2d No. 3.01 to be given to the jury.

Defendant next argues that the trial court deprived him of due process by permitting the State to introduce evidence of other crimes when: (1) the other crime was indistinguishable from the crime charged; (2) the alleged date of the other crime was uncertain; (3) jury instruction No. 3.14 inadequately distinguished between the other crime and the crime charged; and (4) the prejudicial effect of introducing evidence of the other crime outweighed any probative value.

Initially, the grand jury had returned two indictments against defendant. Indictment No. 86 — 3586 charged defendant with the offense of aggravated criminal sexual assault predicated on defendant’s alleged act of forcefully inserting his finger into T.L’s vagina on or about March 1, 1986. Indictment No. 86 — 3587 charged defendant with the offense of aggravated criminal sexual assault predicated on defendant’s alleged act of forcefully committing an act of sexual penetration between his penis and T.L.’s vagina on or about March 2, 1986, and continuing through March 3, 1986. The State elected to proceed on indictment No. 86 — 3587 and filed a notice of intent to use proof of the act alleged in indictment No. 86 — 3586. The trial court granted the State the right to use the finger penetration act as evidence of other crimes on the grounds that it had involved the same parties as the sexual penetration act and had occurred at the same location within a short period of time.

With respect to his contention that the other crime (finger penetration) is indistinguishable from the crime charged, defendant argues that by broadening the time period in indictment No. 86 — 3587, the State had “included” indictment No. 86 — 3586, resulting in “one time frame split into two separate offenses where only one crime was alleged.” Without any citation to legal authority or any evidence of prejudice, defendant claims that use of the other crime created confusion and emasculated his defense. Defendant’s failure to provide this court with any legal argument or citation to supporting authority waives this issue for review. See People v. Sassu (1986), 151 Ill. App. 3d 199.

Defendant also contends that the date on which the other crime was committed was as uncertain as the date for the crime charged and, thus, should not have been admitted into evidence. Specifically, defendant refers to the allegedly conflicting facts that: (1) indictment No. 86 — 3586 stated that the finger penetration had occurred “on or about March 1”; (2) the State’s opening statement and T.L’s testimony set the time of the finger penetration as the first week in March; and (3) the State indicated in closing argument that the finger penetration had occurred on Saturday, March 1. Apparently, defendant finds these references to the occurrence date contradictory because he claims that these statements as to the time period “do not meet even the lowest standards for proving the incident even took place” and that they prejudiced his defense. We find defendant’s attempt to establish uncertainty of the other crime because of the varying references to what is clearly the same time period to be without merit. This is particularly true in light of the fact that the date is not even an essential element of the offense. People v. Cregar (1988), 172 Ill. App. 3d 807, 526 N.E.2d 1376.

With respect to defendant’s contention that IPI Criminal 2d No. 3.14 inadequately distinguished between the other crime and the crime charged, defendant argues that because no other crime existed, the jury instruction misled and confused the jury. Although it is not very clear, defendant appears to be basing his argument on the fact that both the other crime and the crime charged are aggravated criminal sexual assault offenses. However, defendant overlooks the pivotal distinction, i.e,, each offense was predicated on distinctly different sexual acts. The other crime was predicated on finger penetration. The charged crime was predicated on defendant’s penis coming into contact with T.L.’s vagina. The distinction emphasized to the jury was between the underlying sexual acts.

In response to defendant’s argument, the State asserts that IPI Criminal 2d No. 3.14 was introduced to avoid prejudice to defendant and to limit the purpose of the evidence of the other crime to show defendant’s intent and design. IPI Criminal 2d No. 3.14 provides:

“Evidence has been received that the defendant has been involved in an offense other than that charged in the indictment. This evidence has been received solely on the issue of the defendant’s intent and design. This evidence may be considered by you only for the limited purpose for which it was received.”

In support of his position, defendant relies on People v. Foster (1974), 23 Ill. App. 3d 559, 319 N.E.2d 522, People v. Wilkerson (1981), 87 Ill. 2d 151, 429 N.E.2d 526, and People v. Richards (1978), 64 Ill. App. 3d 472, 381 N.E.2d 307. Both People v. Foster and People v. Wilkerson are readily distinguishable from the case at bar. In Foster, the trial court submitted jury instructions regarding intoxication which deviated from the Illinois Pattern Jury Instructions to the degree that they incorrectly stated the law. Accordingly, the judgment was reversed and the cause was remanded for a new trial. In Wilkerson, the trial court failed to give separate instructions for each codefendant and incorrectly stated the self-defense instruction. The supreme court held that both deviations occurring in one case resulted in a confusing set of jury instructions. Therefore, the supreme court affirmed the appellate court’s decision to reverse the convictions and to remand the cause for a new trial.

Although defendant’s reliance on People v. Richards (1978), 64 Ill. App. 3d 472, 381 N.E.2d 307, is far more supportive of his position than Foster or Wilkerson, it is distinguishable on two important points. In Richards, defendant was convicted of indecent liberties with a child. At trial, the complainant stated that other instances of indecent liberties had occurred prior to the one charged. Defense counsel’s objection was overruled. The trial court gave the following jury instruction:

“Evidence has been received that the defendant has been involved in crimes other than that charged in the information. This evidence has been received solely on the issue of the defendant’s design. This evidence is to be considered by you only for the limited purpose for which it was received.” 64 Ill. App. 3d at 474.

On appeal, the reviewing court found that the only purpose for introducing evidence of defendant’s prior conduct to the jury was to establish his relationship and familiarity with the complainant, not to show the defendant’s design. Thus, the reason for admitting evidence of prior conduct and the jury instruction were not in accord and the jury had been improperly instructed on a theory not supported by the evidence. Further, the reviewing court found that the evidence had not overwhelmingly established defendant’s guilt beyond a reasonable doubt. Accordingly, the court found that the error in the jury instruction was not harmless and reversed defendant’s conviction and remanded the cause for a new trial.

In the present case, IPI Criminal 2d No. 3.14 is very similar to the instruction given in Richards. The pivotal difference is that the Richards instruction stated that evidence was received solely to show “design,” rather than to establish relationship and familiarity, which was the actual purpose for introducing the evidence. By contrast, the instruction used in the present case states that the evidence was received to show “intent and design,” which was exactly the purpose for introducing the other crimes evidence at trial. A further point of distinction between Richards and the present case is that in Richards, the jury instruction error was found not to be harmless error because the evidence had not overwhelmingly established defendant’s guilt beyond a reasonable doubt. In the present case, the evidence of defendant’s guilt is overwhelming.

Accordingly, because IPI Criminal 2d No. 3.14 is in accord - with the State’s purpose for introducing evidence of the finger penetration act and defendant has failed to show how the instruction confused the jury or prejudiced him, we find that the trial court properly allowed IPI Criminal 2d No. 3.14 to be given.

With respect to defendant’s contention that the prejudicial effect of the introduction of the other crimes evidence outweighed any probative value, defendant argues that the jury could reasonably have decided that since there was a previous charge, defendant must be guilty of the crime charged and that the other crimes evidence was not relevant to the offense charged and should have been excluded. In response, the State reiterates its position that evidence of the other crime was properly admissible to show defendant’s intent and design and to corroborate T.L.’s testimony.

We find People v. Tannahill (1987), 152 Ill. App. 3d 882, 504 N.E.2d 1283, dispositive of this issue. In Tannahill, defendant was convicted on one count of aggravated criminal sexual abuse and two counts of indecent liberties against his 12-year-old daughter in connection with three separate incidents. At trial, complainant testified as to two other incidents which had been witnessed by her two brothers as well as continued incidents over a one-year period when her mother was not at home. On appeal, the reviewing court held that the trial court had properly admitted evidence of other sexual offenses between defendant and the complainant.

In reaching its decision, the Tannahill court stated that evidence of defendant’s prior sexual offenses with the same child is admissible to show the relationship and familiarity of the parties, the intent with which the act was done, defendant’s design or course of conduct, and to corroborate complainant’s testimony as to the particular acts relied upon for conviction. The Tannahill court further stated:

“A father’s sexual abuse of his daughter invariably involves more than one incident. Limiting complainant’s testimony to one incident would make the incident appear isolated. This limitation would place an unfair strain upon the credibility of complainant’s testimony concerning the charged offenses. Moreover, the probative value of such evidence far outweighs any prejudicial effect on defendant.” 152 Ill. App. 3d at 887.

Defendant’s reliance on People v. McDonald (1975), 62 Ill. 2d 448, 343 N.E. 2d 489 (burglary), People v. Copeland (1978), 66 Ill. App. 3d 556, 384 N.E.2d 391 (armed robbery), and People v. Siebert (1979), 72 Ill. App. 3d 895, 390 N.E.2d 1322 (attempted murder and delivery of a controlled substance), is misplaced for the singular reason that these cases do not address sexual offenses against children, which offenses courts have consistently recognized present unique considerations. See People v. Tannahill (1987), 152 Ill. App. 3d 882, 504 N.E.2d 1283.

For other reasons, defendant has also mistakenly relied on People v. Esterline (1987), 159 Ill. App. 3d 164, 512 N.E.2d 358. In Esterline, defendant was charged with the offense of indecent liberties with a child. Unlike our case, complainant was not related to defendant and the other crimes evidence sought to be admitted concerned alleged sexual acts defendant had had with children other than complainant. The Esterline court held that introduction of the other crimes showed only that defendant had a propensity for taking indecent liberties with children, which was not a valid ground for admissibility.

As stated, in the present case, the other crime sought to be introduced occurred between the same parties, in the same place, and within a few days of the crime charged. Further, the alleged incident occurred between a stepfather and his stepdaughter. Based on these facts, we find that the probative value of the other crimes evidence in the present case outweighs any prejudicial effect.

Next, defendant contends that the trial court erred when it: (1) allowed the State to query T.L.’s mother as to T.L.’s mental condition subsequent to the incidents; (2) did not allow defense counsel to cross-examine Officer O’Rourke as to the remainder of defendant’s prior statement; (3) allowed Officer O’Rourke’s testimony on rebuttal; and (4) failed to order T.L. to answer key questions on cross-examination. Defendant argues that these rulings were improper and confused the trier of fact and undermined any hope of a rational defense.

The first ruling concerns the following exchange which occurred during direct examination:

“[THE STATE]: And since this happened to her, has [T.L.] been different?

* * *

[MOTHER]: She [sic] still the same, but not like she used to be.

[THE STATE]: What’s different?

[MOTHER]: I can’t talk to her like I used to.

* * *

[THE STATE]: How is she emotionally?

[MOTHER]: She’s okay.

[THE STATE]: But you can’t talk to her, is that right?

[MOTHER]: Yes.”

Defendant argues that T.L.’s mother’s response to the State’s query as to whether T.L. has been different since the incidents was irrelevant and prejudiced defendant by causing the jury to feel biased against him. In response, the State contends that the testimony concerning T.L.’s condition was properly admitted to rebut testimony that T.L. had told no one at school about the incident and had “originally denied” the incident to her mother. In our view, the record does not support the State’s rationale. Prior to the testimony of T.L.’s mother, T.L. testified on cross-examination:

“Q. You never told anybody at school anything happened, is that correct?

A. No.”

Contrary to the State’s interpretation of the above exchange, the plain meaning of T.L.’s response to the query “Is that correct?” is that the defense was incorrect in its belief that T.L. had never told anyone at school. There is no follow-up questioning on this matter to alter the plain meaning that T.L. denied never having told anyone at school about what had happened. Further, the State’s contention that T.L. had “originally denied” the incident to her mother is more accurately described as T.L. “had hesitated” to tell her mother. During direct examination, T.L.’s mother described the initial conversation she had had with T.L. about what was bothering her. During that single conversation, T.L. hesitated at first, but when she was assured that she would not be punished, she told her mother about defendant’s acts. Under the circumstances, T.L.’s embarrassment is readily understandable and we find no evidence of a demonstrated need to have her credibility restored by testimony as to her subsequent mental state.

Moreover, we find the State’s reliance on People v. Brown (1982), 107 Ill. App. 3d 576, 437 N.E.2d 1240, misplaced. In Brown, the State elicited testimony from the victim of a sex offense that she had been receiving psychiatric treatment subsequent to the alleged incident. The reviewing court held that this testimony was properly elicited in light of defense counsel’s false statement that the victim had been receiving psychiatric treatment prior to the incident. As stated by the Brown court, “Since the defense theory of the case was to discredit complainant as a mixed-up, fantasizing child, defense counsel was willing to have her former history of psychiatric tréatment brought out.” (107 Ill. App. 3d at 584.) This necessity for clarification is not present in the case at bar.

Although we find no reason for the State to have elicited testimony as to T.L.’s mental state after the incident other than to seek the jury’s sympathy, we also find that any error was harmless in light of the content of T.L.’s mother’s response. Although T.L.’s mother stated that she could not talk to T.L. like she used to, she also stated that T.L. was “okay” emotionally. In our view, these comments do not appear to rise to the level of inflaming the passions of the jury so as to cause prejudice to defendant.

Next, defendant argues that he was prejudiced by the trial court’s refusal to allow defense counsel to elicit defendant’s full statement from Officer O’Rourke, the State’s rebuttal witness. During trial, Wilson Cooper, field supervisor for Burns Security, defendant’s employer, testified on defendant’s behalf that defendant had been working on Sunday, Monday and Tuesday (March 2, 3 and 4) from 4 p.m. until midnight. On rebuttal, Officer O’Rourke testified that on the day defendant had been arrested, he had told O’Rourke that during the first week of March 1986, he had been at home at night some of the time.

Prior to O’Rourke’s testimony, during a conference outside the presence of the jury, the State told the trial court that it was going to ask O’Rourke questions regarding defendant’s statement as to where he had been during the first week of March 1986 so as to rebut defendant’s alibi testimony. The trial court allowed the question and the State asked only questions related to that matter. However, on cross-examination, defense counsel attempted to expand the scope of questions by asking O’Rourke whether defendant had denied allegations. The State objected and the objection was sustained.

Although it is not clear from the briefs, defendant appears to be relying on the completeness doctrine in his attempt to claim reversible error for the trial court’s refusal to allow him to further question O’Rourke regarding defendant’s statement. The completeness doctrine permits a party to introduce the balance of an utterance or writing in order to explain, qualify or otherwise shed light on that portion of a statement introduced by an opponent. However, admission of evidence under this doctrine is limited to that which is relevant, material, and concerns the same subject at the same time. People v. Pietryzk (1987), 153 Ill. App. 3d 428, 505 N.E.2d 1228.

In the present case, the testimony attempted to be elicited from O’Rourke by defense counsel did not concern the alibi testimony. Rather, it concerned defendant’s denial of the allegations. Thus, it would not have been admissible under the completeness doctrine. Further, defendant’s reliance on People v. Hicks (1963), 28 Ill. 2d 457, 192 N.E.2d 891, is misplaced on the ground that Hicks concerned impeachment testimony and defendant did not testify in the present case. Next, defendant argues that due to the vagueness of the time frame questions, his alleged statement to O’Rourke was not sufficiently connected to the alibi defense to have been allowed as proper rebuttal testimony This argument has no basis in the facts. Specifically, defendant claims that his alibi witness’ reference to Sunday, March 2; Tuesday, March 3; and Wednesday, March 4 does not correlate to O’Rourke’s testimony during rebuttal as to the “first week of March, 1986.” Not only is this argument specious on its face even if supported by the facts, the record indicates that during direct, defense counsel specifically queried the alibi witness as to, “On the week of March — the first week of March of 1986, that week ending March 6, 1986, ***.” Thus, the correlation between the time frame testified to by the alibi witness and that testified to by O’Rourke was firmly established.

As his last contention regarding alleged erroneous evidentiary rulings, defendant claims that the trial court’s failure to order T.L. to answer key questions denied him his right to confront his accuser. In response, the State argues that defendant did not object to the trial court’s failure to force T.L. to answer questions at trial and, in the alternative, defendant has failed to show how T.L.’s failure to respond prejudiced him in any way.

Pivotal to resolution of this issue is the distinction between defendant’s contention that he was not given an “opportunity” to cross-examine T.L. and T.L.’s failure to respond to all of defense counsel’s questions. Defendant does not allege that the trial court precluded defense counsel from asking T.L. questions. Therefore, the opportunity was always there. The fact that defense counsel was unable to capitalize on that opportunity does not amount to an erroneous evidentiary ruling. In that regard, People v. Barr (1972), 51 Ill. 2d 50, 280 N.E.2d 708, and People v. Strother (1972), 53 Ill. 2d 95, 290 N.E.2d 201, relied upon by defendant, are distinguishable. In both Barr and Strother, defense counsel was denied the opportunity to ask specific questions.

Finally, defendant contends that the State failed to prove him guilty of aggravated criminal sexual assault beyond a reasonable doubt. Defendant argues that T.L.’s testimony was confusing, uncertain and improbable and, thus, did not satisfy the standard that when a sexual abuse conviction rests upon the complainant’s testimony, that testimony must be clear and convincing or substantially corroborated. (People v. Kolden (1962), 25 Ill. 2d 327, 185 N.E.2d 170.) In support of his position, defendant relies extensively on T.L’s inability to recall the exact dates of the occurrences, her failure to answer certain questions and the contradictions between T.L.’s testimony and the testimony of defense witnesses as to what T.L. had told them. In response, the State argues that T.L.’s testimony was clear and convincing and was substantially corroborated by other evidence.

A conviction for aggravated criminal sexual assault, where the defendant denies the charge, will be upheld when the complainant’s testimony is “clear and convincing” or it is corroborated by other evidence. Clear and convincing does not mean uncontradicted or unimpeached. (People v. Cregar (1988), 172 Ill. App. 3d 807, 526 N.E.2d 1376.) Rather, a complainant’s testimony is considered clear and convincing if the story is consistent and discrepancies do not detract from its reasonableness. (People v. Escobedo (1987), 151 Ill. App. 3d 69, 502 N.E.2d 1263.) Minor contradictions or inconsistencies that occur go to the weight of the testimony and, therefore, are to be evaluated by the trier of fact. (People v. Cregar (1988), 172 Ill. App. 3d 807, 526 N.E.2d 1376; People v. Escobedo (1987), 151 Ill. App. 3d 69, 502 N.E.2d 1263.) The trier of fact’s determination as to the credibility of the complainant is to be accorded great weight (People v. Cregar (1988), 172 Ill. App. 3d 807, 526 N.E.2d 1376), and its finding of guilt will not be disturbed absent a showing that the evidence is so unsatisfactory as to warrant a reasonable doubt of guilt. People v. Tannahill (1987), 152 Ill. App. 3d 882, 504 N.E.2d 1283.

In the present case, defendant claims that T.L. told a different version of the events to the police officers, the doctor, the nurse and the detectives. In addition, defendant claims that T.L. testified to one event at trial, yet detailed three separate incidents in other versions. Although there is no question that T.L. was confused about the dates on which the various incidents took place and was confused about what she had told other witnesses seven months earlier, the discrepancies go solely to the degree or type of sexual activity. T.L. never wavered in alleging that defendant had sexually molested her. Further, defendant’s own witnesses, Detective Sammie Lacey, Officer Clifford Doyle and Nurse Sylvia Lizcano, all testified that T.L had not given them any specific dates. Rather, any dates in their reports were surmised from the information given to them by T.L. and her mother. Thus, any discrepancy as to dates cannot be directly attributed to T.L. Moreover, the defense witnesses all testified that T.L. had been visibly upset and frightened when they had talked with her on March 5, 1986. Thus, her state of mind was clearly not at its most coherent. However, despite her frightened state, T.L. had always claimed that defendant had committed sexual acts on her. In view of the circumstances, we do not find that T.L.’s confusion on the witness stand renders her testimony so incredible as to require reversal of defendant’s conviction. As previously stated, any inconsistencies go to the weight of the testimony and are to be resolved by the trier of fact. People v. Tannahill (1987), 152 Ill. App. 3d 882, 504 N.E.2d 1283.

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

Affirmed.

BUCKLEY and O’CONNOR, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE MANNING

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DARRELL C. PALMER, Defendant-Appellant.
    First District (1st Division)
    No. 1 — 86—2091
    Opinion filed July 17, 1989.
    Modified on denial of rehearing October 10, 1989.

      Michael J. Pelletier and Jeffrey Walker, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Catharine M. Forest, and Pradeep Roy-Singh, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

Defendant, Darrell C. Palmer, appeals from convictions for aggravated criminal sexual assault and unlawful restraint and a sentence of 12 years’ imprisonment. He maintains that: (1) the State failed to impeach his alibi defense and rebut the evidence he presented that he did not fit the description of the offender; (2) the admission of certain hearsay statements violated his right to due process and right to confrontation; (3) he was denied due process when the jury was not instructed on the lesser-included offense of criminal sexual assault; (4) he was denied effective assistance of counsel; and (5) his sentence was improperly based on the judge’s predisposition to severely sentence sex offenders. For the reasons that follow, we affirm the decision of the trial court.

The complainant testified at trial to the events that occurred on September 25, 1984. She was 12 years old at the time, lived at 72nd and Halsted and attended Walter Reed Elementary School located at 64th and Stewart. On the morning of September 25, she overslept and missed her 8:30 a.m. bus. She got up at approximately 9 a.m., took 20 minutes to dress and left for school, carrying her math and spelling books. She walked down Halsted Street to 64th, turned east on 64th and went under a viaduct to the north side of the street, the side on which her school was located.

As she walked under the viaduct, a young man ran up behind her on the right side, pressed something against her side and told her that it was a gun. He told her not to move or he would kill her. The object in question was black and brown, and the brown portion appeared to be made of wood. The assailant took her across the street to some bushes by the railroad tracks. When they reached the bushes, he laid her down, pulled up her skirt and pulled down her underpants. He then unzipped his pants and pulled out his penis. She could see at this time that he was wearing maroon underwear.

During this time, the complainant was crying and yelling. The assailant told her to be quiet, and then he put his penis in her mouth while she was lying down. He then took his penis out of her mouth and lay on top of her. He tried to insert his penis in her vagina but was unable to do so because she was moving around too much. The complainant told him that the penis hurt her, but he told her to be still or he would kill her and placed his hand over her mouth. The assailant then got up, pulled up his pants and zipped them.

The complainant testified that he went to see if anyone was coming and then came back for her. He offered the complainant $10 not to tell anyone what had happened, but she turned down the money. They were walking toward the school when he told her that he knew where she lived and would kill her if she told her mother or the police about the incident. The assailant told her that he had raped her because his girlfriend had been raped. When they reached an alley, the defendant ran into the alley and the complainant ran to school.

Upon her arrival at school, the complainant met her teacher in the hallway and told her that she had been raped. The assistant principal and the police were notified, and the complainant was taken to St. Bernard Hospital for examination.

The complainant testified that she had an opportunity to see the assailant. She stated that he was wearing a maroon and gold CVS jacket, gray pants, a black and gray shirt and gray shoes. He had long curly hair with gold streaks in it, had eyes that were “scrunched together” and pierced ears. She described her assailant as being 5 feet 9 inches tall, weighing 130 or 180 pounds, and appearing to be 17 or 18 years old.

Detective John McCann testified that he interviewed the complainant at the hospital. The description she gave of the assailant was similar to the one she had given to the police at the school. After she was released from the hospital, Detective McCann took the complainant back to the scene of the incident. They then went to CVS High School on 87th Street and Jeffrey Boulevard because they thought the offender may have been a student there. They chose the school because of the letters on the jacket, but learned that maroon and gold were not the school colors. The complainant was shown yearbook pictures and police photographs but did not recognize any of them as her assailant.

Detective McCann then gave a description of the assailant to the school officer at Englewood High School, which is a block and a half from Reed Elementary School and is the school a person in the area would attend. He also went to the apartment building at 6425 South Lowe, since the complainant had told him that the assailant had fled west and then south behind Lowe. The apartment complex has about 160 units and is located approximately a block and a half from the scene of the incident. Detective McCann gave a description of the assailant to the security guard and was informed that a person fitting that description had been in the building.

The complainant’s mother testified that on November 22, 1984, the complainant and some of her cousins went to the Jewel food store at 62nd and Halsted. Upon returning home the complainant told her mother that she had seen the man who had attacked her at the store. The complainant’s mother grabbed a knife and went to Jewel. Upon arriving there, the complainant pointed out the defendant to her mother, and the complainant’s mother confronted him as he was leaving the store. The complainant’s mother testified that prior to being accused of anything or even asked a question the defendant denied that he had done anything, remarking, “[Y]ou got the wrong person, you got the wrong person,” and “[L]ady, she is mistaken [sic] identity.” However, the complainant insisted that he was the assailant. The complainant’s mother flagged down a patrol car, and the officers arrested the defendant.

Officer Bernard Scott testified that on November 22, 1984, he was assigned to work at the Englewood Shopping Concourse. At approximately 1:45 p.m. he was flagged down by a woman and a child in front of a Jewel food store. The woman informed him that her daughter had been the victim of a sexual attack and identified the defendant as the assailant. Officer Scott placed the defendant in a squad car and read the defendant his Miranda rights. The defendant indicated that he understood his rights.

The defendant was then transported to the 7th District, where he was taken to the tactical office. Officer Scott overheard Officer Woullard having a conversation with the defendant. Officer Woullard was explaining the facts of the case to the defendant, and Officer Scott observed the defendant showing Officer Woullard the purple underwear he was wearing.

Officer Scott testified that later that day he had a telephone conversation with Yolanda Evans, the defendant’s girlfriend, during which they discussed a maroon and gold jacket. Yolanda told him that the defendant had such a jacket, that she had seen it earlier that morning and indicated that the police could come over and get it. However, when Officers Scott and Woullard searched her apartment, they did not find the jacket.

Detective William Kelly testified that on November 22, 1984, he was assigned to follow-up investigation of an aggravated criminal sexual assault on the complainant. He and his partner, Detective Foley, spoke with the defendant in an interview room. Detective Kelly read the defendant his Miranda warnings and the defendant indicated that he was willing to answer their questions. The defendant told them that he did not own a maroon and gold CVS jacket. He stated that on the date of the incident he was working at the Holiday Inn and that Yolanda Evans could verify that fact. However, when Detective Kelly contacted Yolanda to verify the alibi, she informed him that the defendant was not working at the Holiday Inn on that day because he had been laid off. She further stated that she had seen the defendant wearing the jacket in question.

At about 3:30 p.m. Detective Kelly again spoke to the defendant in the presence of Assistant State’s Attorney Susan Fleming. They advised the defendant of his rights, and he indicated a willingness to speak to them. Detective Kelly informed him that his girlfriend did not verify that he was working at the Holiday Inn at the time of the incident, at which time the defendant admitted to grabbing a small girl. He stated that he had taken her in an area with bushes where he raised her dress and pulled down her panties. He took out his penis and attempted to have intercourse with her but did not complete the act. He then walked with the girl and told her not to tell anyone. The defendant said that the gold and maroon jacket he had been wearing belonged to a friend.

Yolanda Evans, the defendant’s girlfriend, testified that she had known the defendant for eight years and had lived with him for four years. She stated that she had discussed a maroon and gold CVS jacket with the police, and that two police officers had asked her permission to look for it but she did not testify to the substance of the conversation. She denied that the police had asked her if the defendant worked at the Holiday Inn on the date of the incident. Ms. Evans acknowledged that she had been sexually assaulted in May of 1983 and had discussed the incident with the defendant.

Assistant State’s Attorney Susan Fleming testified that at 3:30 p.m. she had spoken with the defendant in the interview room in the presence of Detective Kelly. She told the defendant that the complainant had identified him as the individual who had sexually assaulted her by some railroad tracks. The defendant said he did not know anything about the incident and that he had been with his girlfriend at the time. Fleming informed him that Yolanda had told Detective Kelly that the defendant was not with her, at which point he admitted that he had followed a little girl and had taken her to an area by some railroad tracks where he pulled down her clothes. The girl struggled and yelled for her mother and he took out his penis in an attempt to scare her, but did not rape her. The defendant’s statement was transcribed, but he refused to sign it.

Katrina Chambers testified on behalf of the defense. She stated that on September 25, 1984, she telephoned the defendant at 8:55 a.m. and spoke to him for approximately 25 minutes. She lived in the same apartment building as the defendant and on that date he had visited her apartment at about 9:30 or 9:45 a.m.

Jerome Roberson, a friend of the defendant’s, testified that he had known the defendant for four years and that he had seen the defendant on the morning of September 25, 1984, since he had spent the night at his house. He maintained that on that date the defendant did not have streaks in his hair and that the first time he noticed the streaks was the week before Halloween.

Yolanda Evans was also called on behalf of the defense and testified that the defendant did not have streaks in his hair on September 25,1984.

The defendant took the stand on his own behalf. He testified that he was 5 feet 8 or 9 inches tall, weighed 125 pounds and had had pierced ears approximately five years. On the morning of September 25, 1984, Katrina Chambers called him at approximately 9 a.m. After speaking with her, he washed up, dressed and went to her apartment, arriving between 9:30 and 9:45 a.m. He testified that he did not see the complainant on that day.

On this evidence, the defendant was found guilty of unlawful restraint and aggravated criminal sexual assault and sentenced to 12 years in the Illinois Department of Corrections.

On appeal, he contends that the State did not prove his guilt beyond a reasonable doubt since his alibi was unrebutted. He further contends that the State failed to establish that he matched the description of the attacker.

Where the identification of the accused is at issue, the trier of fact is not required to accept the defendant’s alibi testimony over the positive identification by the victim, and the testimony of a single witness, if positive and credible, is sufficient for a conviction even in the presence of contradictory alibi testimony. (People v. Thomas (1986), 145 Ill. App. 3d 1, 7-8, 495 N.E.2d 639.) The test of a positive identification is whether the witness had an opportunity to view the offender for a sufficient length of time under conditions adequate for observation. (People v. Gholston (1984), 124 Ill. App. 3d 873, 892, 464 N.E.2d 1179.) These conditions need not be perfect and the observation does not have to be prolonged. People v. Williams (1986), 143 Ill. App. 3d 658, 662, 493 N.E.2d 362.

In the present case, the 12-year-old victim had ample opportunity to view her assailant. The incident occurred during daylight hours when the victim walked to the elementary school she attended, which was located at 64th and Stewart. The defendant then accosted her from behind and pressed what the complainant described as a black and brown object to her side. He identified the object as a gun and then walked beside her and forced her into some bushes. There, he made her lie on the ground, raise her skirt and lower her underpants. He thereafter sexually assaulted her while she struggled against him.

When he finished, he offered her $10 which she refused. While they walked toward the school, he told her he knew where she lived and threatened to kill her if she reported him to the police or her mother. He claimed that he had raped her because his girlfriend had been raped. When they reached an alley, he fled and she ran to school.

The complainant was able to view defendant prior to, during, and after the incident. She described him as being 5 feet 9 inches tall and weighing 130 to 180 pounds. She further stated that he appeared to be 17 to 18 years old and that he wore a maroon and gold jacket, gray pants and shoes and a black and gray shirt. He had long, curly, gold-streaked hair. His eyes were “scrunched together” and he wore earrings in his pierced ears. Although the evidence presented by the State regarding defendant’s weight and when he had added the gold streaks to his hair conflicted with that of the defense, the conflict merely affected the weight of the evidence.

Further, it can reasonably be argued that the defendant’s unsolicited declaration of innocence to the complainant’s mother when initially approached by her showed an element of guilt. Additionally, he admitted that he had assaulted the complainant to law enforcement officials when they advised him that his girlfriend refused to provide him with an alibi. Although alibi witnesses testified in defendant’s behalf, the jury was not required to accept their testimony as true. The testimony of one of defendant’s alibi witnesses revealed that he was not with defendant at the time of the incident and thus could not provide an alibi. The account provided by the other witness was riddled with conflicts.

Defendant also asserts that the trial court admitted certain hearsay testimony which violated his rights to due process and confrontation. When a defendant fails to object to the admission of alleged hearsay testimony diming trial proceedings or raise it in a written post-trial motion, he waives it as an issue for purposes of review on appeal. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124.) An exception to this rule is the plain error doctrine, which may be applied if the evidence is so close that there is a possibility that an innocent man may have been convicted due to an error which is obvious from the record, or the alleged error deprived the accused of substantial means of enjoying a fair and impartial trial. The court considers such errors even though they have not been properly preserved. (People v. Carlson (1980), 79 Ill. 2d 564, 576, 404 N.E.2d 233.) The plain error doctrine is applicable only when the record clearly reflects that an error affecting substantive rights was committed. (People v. Coles (1979), 74 Ill. 2d 393, 397, 385 N.E.2d 694.) After our review of the facts herein, we cannot conclude that the evidence was so close that the plain error rule should be applied.

Nevertheless, we observe that hearsay evidence is testimony in court of a statement made out of court, such statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter. (People v. Lopez (1987), 152 Ill. App. 3d 667, 672, 504 N.E.2d 862.) Out-of-court statements used other than for purposes of establishing the truth of the matter asserted do not rest for their value on the credibility of the out-of-court declarant and are generally admissible. People v. Camp (1984), 128 Ill. App. 3d 223, 229, 470 N.E.2d 540.

In the instant matter, defendant argues that the following statements were inadmissible hearsay: (1) testimony by Detective McCann regarding the victim’s description of the offender and his conduct after and during the assault; (2) Detective McCann’s conversation with a security guard at 6425 South Lowe; (3) Officer Bernard Scott’s testimony regarding Yolanda Evans’ statement about defendant’s ownership of a jacket allegedly worn by the assailant; (4) Detective William Kelly’s testimony regarding Evans’ statement as to defendant’s place of employment; and (5) Assistant State’s Attorney Fleming’s testimony regarding Evans’ denial that she was with defendant at the time of the offense.

After reviewing each of the allegedly inadmissible statements, we find that defendant’s contentions are without merit.

The testimony of Detective McCann regarding the complainant’s description of her offender was, in effect, either a statement of identification, or a statement of present sense impression in which the complainant described the conditions immediately after the incident. Our supreme court in People v. Rogers (1980), 81 Ill. 2d 571, held that evidence of an out-of-court identification by a witness could be used in corroboration of an in-court identification. Accord People v. Shum (1987), 117 Ill. 2d 317, cert. denied (1988), 484 U.S. 1079, 98 L. Ed. 2d 1022, 108 S. Ct. 1060. See also Fed. R. Evid. 803(1).

In the instant case, both Detective McCann and the complainant testified at trial, and the complainant made an in-court identification of the defendant, in addition to her previous identification of him at the Jewel store. Therefore, we find that the testimony by Detective McCann regarding the complainant’s out-of-court description of her offender was properly admitted in corroboration of her in-court identification, where the complainant had made a positive out-of-court identification and where both the complainant and Detective McCann were subject to cross-examination.

Further, we conclude that Detective McCann’s testimony of his conversation with the complainant regarding the-conduct of the offender was admissible. Detective McCann testified that the complainant had related to him that the offender fled in the direction of a building at 6425 South Lowe. Based on this information, Detective McCann proceeded to that building and spoke with the security guards, giving them a description of the offender and inquiring if they had seen a person in the building fitting that description.

Under Illinois law, testimony of an out-of-court statement offered for the limited purpose of explaining the reason and manner in which the police conducted their investigation is not hearsay testimony. (People v. Stewart (1984), 105 Ill. 2d 22, cert. denied (1985), 471 U.S. 1131, 86 L. Ed. 2d 283, 105 S. Ct. 2666.) In the case at bar, Detective McCann testified that he was involved in the investigation from the start. He first interviewed the complainant at the hospital, and at that time, she related her offender fled on foot, away from a secluded area, in the direction of a particular building. Further, Detective Mc-Cann testified regarding the security guard’s statement that someone who matched the description of the offender entered the building pointed out by the complainant. Hence, we find that this testimony served the limited purpose of explaining the reason the police conducted their investigation as they did and was admissible as an exception to the hearsay prohibition. People v. Gully (1986), 151 Ill. App. 3d 795, 799, 502 N.E.2d 1091.

We have reviewed the complained-of testimony of Officer Scott and Detective Kelly. Each of the policemen testified to out-of-court statements allegedly made to them by Yolanda, the defendant’s girlfriend, regarding the defendant’s ownership of a jacket and place of employment, respectively. Yolanda was available as a witness, and in fact testified for both the State and the defense. In addition, the complainant and other witnesses testified to the same matters. Therefore, we believe that the testimony of the officers was merely cumulative of other evidence. We conclude that where persons, such as here, make out-of-court statements, which were offered in police testimony, also testify at trial, and with the exception of the complainant, are witnesses for the defendant, their statements are properly admitted, but even if improperly admitted, do not constitute reversible error. (See People v. Bonds (1980), 87 Ill. App. 3d 805, 410 N.E.2d 228.) We reach this decision in view of the entire record, the declarants’ presence at trial, their availability for examination, and the overwhelming evidence of defendant’s guilt in a prosecution for aggravated criminal • sexual assault upon a child.

The last instance which the defendant contends is inadmissible hearsay concerns the testimony of Assistant State’s Attorney Fleming relating an investigatory conversation she had with the defendant where she informed him that Yolanda had denied he was with her at the time of the offense.

In People v. Sexton (1987), 162 Ill. App. 3d 601, 51 N.E.2d 1359, this court found that the admission at trial of an out-of-court statement made by the assistant State’s Attorney during a preliminary interview did not constitute reversible error. In this case, after his arrest, the defendant was held in a room and interviewed by detectives from the police department and Ms. Fleming from the State’s Attorney’s office. Ms. Fleming testified that she informed the defendant of the nature of her duties, which included conducting an investigation to determine whether he should be charged with a crime. Once the defendant agreed to speak to her, Ms. Fleming questioned him about his involvement with the complainant. Ms. Fleming stated that the defendant denied any assault on the complainant and “mentioned an alibi with his girlfriend, Yolanda.” It was following these remarks that Ms. Fleming informed the defendant that the police had spoken with Yolanda, who denied that the defendant was with her.

We find that the testimony of the assistant State’s Attorney, under these circumstances, was no more than a recitation of the facts and occurrences surmised from her investigation of the assault. As such, admission into evidence of the assistant State’s Attorney’s out-of-court response to the defendant, questioning his alibi, after the claim of alibi was first put into issue by the defendant, was properly admitted at trial, where the out-of-court statement was made during the preliminary investigation of the offense and where the investigator was available as a witness at trial.

Thus, as we have indicated, there was no basis for excluding the aforementioned testimony where either the out-of-court declarants were available at trial and/or the out-of-court statements were offered for limited purposes, i.e., to explain, the conduct utilized by law enforcement officers during their investigatory procedure. Further, the admission of any other statements which could be considered hearsay was at most harmless error.

Defendant next contends his conviction should be reversed on the grounds that the trial court committed reversible error when it did not instruct the jury on the lesser-included offense of criminal sexual assault. The State once again contends that this court is precluded from addressing this issue on the basis that the defendant has waived his right for review by failing to raise the issue in the trial below.

A review of the record clearly shows that the defendant failed to proffer an instruction or make an objection when the jury instructions were tendered in the trial court. Our Illinois Supreme Court has stated that failure to make a timely objection at trial to jury instructions will constitute a waiver of the issue on appeal. (People v. Tannenbaum (1980), 82 Ill. 2d 177, 180.) The record also shows that defendant failed to raise this issue in a post-trial motion. We agree with the State that an objection must be made during the trial and raised in a post-trial motion to preserve an issue for appeal (People v. Enoch (1988), 122 Ill. 2d 176, 186), and that failure to do so waives the issue upon review. (People v. Enoch, 122 Ill. 2d at 198.) While we recognize that this court will address questions such as those raised by the defendant under the plain error exception, we do not believe the invocation of that doctrine to be appropriate under the facts of the case at bar. Ordinarily we would conclude our analysis here. However, we feel compelled to review the defendant’s assertion that another exception to the waiver rule,- the review of certain constitutional issues (Enoch, 122 Ill. 2d at 190), is applicable to the instant case.

The defendant raises a question of due process and postulates that his rights were violated by the trial judge’s failure to sua sponte instruct the jury on the lésser-included offense of criminal sexual assault. Thus, it is due to the gravity of the defendant’s assertions regarding a deprivation of his constitutional rights that we address the issue of jury instructions.

The defendant maintains he is entitled under due process to instructions for a lesser-included offense because there is evidence that would permit a jury to find him guilty of that offense. He contends that the facts in this case could have supported criminal sexual assault instructions as well as aggravated criminal sexual assault instructions (Keeble v. United States (1973), 412 U.S. 205, 36 L. Ed. 2d 844, 93 S. Ct. 1993; People v. Coleman (1987), 166 Ill. App. 3d 242, 520 N.E.2d 55); that based on the evidence presented, the jury could have convicted him of the lesser included offense (People v. Creamer (1986), 143 Ill. App. 3d 64, 492 N.E.2d 923), and that he was entitled to such instructions even if the evidence which supports the instructions was slight and even though the instructions may conflict with the theory of the case (People v. Dace (1984), 104 Ill. 2d 96, 470 N.E.2d 993).

We believe that the circumstances here involved are dissimilar to those cases cited by the defendant. The defendant cites to Keeble v. United States (1973), 412 U.S. 205, 213, 36 L. Ed. 2d 844, 850, 93 S. Ct. 1993, 1998, which reversed and remanded the defendant’s convictions, stating that “the jury could rationally have convicted him of simple assault if that opinion had been presented.” However, in the Keeble decision, the question of intent, an element of the offense charged, “was very much in dispute at trial” (Keeble, 412 U.S. at 213, 36 L. Ed. 2d at 850, 93 S. Ct. at 1998), and therefore mandated that the trial court offer an instruction on the elements of the offense. The defendant has misconstrued Keeble to stand for the proposition that a defendant is unequivocally entitled under due process to instructions for a lesser-included offense. In fact, the Supreme Court has explained Keeble and Beck v. Alabama (1980), 447 U.S. 625, 65 L. Ed. 2d 392, 100 S. Ct. 2382, in Hopper v. Evans (1982), 456 U.S. 605, 72 L. Ed. 2d 367, 102 S. Ct. 2049, and reaffirmed the principle that due process requires that an instruction on a lesser-included offense be given only when the evidence so warrants. Hopper, 456 U.S. at 611, 72 L. Ed. 2d at 373, 102 S. Ct. at 2053.

Similarly, in People v. Coleman (1987), 166 Ill. App. 3d 242, 520 N.E.2d 55, this court held that failure to instruct the jury on the State’s burden to prove lack of consent, once the question of consent is raised by an accused, is grave error necessitating a new trial. (Coleman, 166 Ill. App. 3d at 248.) However, contrary to defendant’s contention in his brief, the Coleman court found no error in the trial court’s refusal to instruct the jury on the lesser-included offense of criminal sexual assault and held it is error to instruct a jury where the evidence supports only the conclusion that the defendant, if guilty at all, is guilty of the crime charged. 166 Ill. App. 3d at 248. See also People v. Lockett (1980), 82 Ill. 2d 546, 551; People v. Preston (1930), 341 Ill. 407, 420, 173 N.E.2d 383.

First, we find that where no instruction on a lesser-included offense was offered by the defendant, the trial court did not have a duty to raise the issue sua sponte. Generally, it is the burden of the party who desires a specific instruction to present it to the court and request that it be given to the jury. (People v. Britz (1988), 123 Ill. 2d 446, 475.) The circumstances where the court may be required to sua sponte offer an instruction include “seeing that the jury is instructed on the elements of the crime charged, on the presumption of innocence and on the question of burden of proof.” (People v. Parks (1976), 65 Ill. 2d 132, 137.) This case involves none of these issues.

Moreover, in the instant case, the defense was alibi and mistaken identity. The record reveals that several witnesses testified on behalf of the defendant that he was with them at the time of the alleged occurrence and that the description of the assailant did not describe him. The evidence submitted at trial, by the defendant, implied but one conclusion — that he was not guilty and the wrong person had been charged. Therefore, it is reasonable to assume that defense counsel intended to present the jury with only two alternatives, namely guilty of aggravated criminal sexual assault and unlawful restraint or not guilty. If the court had given such an instruction, it would have been at risk of interfering with the defense strategy and committing reversible error. People v. Spataro (1978), 67 Ill. App. 3d 69, 384 N.E.2d 553.

The defendant asked the jury to believe his alibi and to believe that someone else attacked and assaulted the complainant. Consequently, we find that the defendant’s contention is meritless and he was not entitled under due process to an instruction on criminal sexual assault where his own evidence of alibi and mistaken identity negates the possibility that a lesser-included offense instruction might have been warranted. Hopper v. Evans, 456 U.S. at 612-13, 72 L. Ed. 2d at 373-74, 102 S. Ct. at 2053-54.

We now address defendant’s contention that he was inadequately represented by counsel. In order to prove this claim, defendant must prove that counsel’s representation fell below an objective standard of reasonableness and that there is a reasonable probability that, but for defense counsel’s alleged errors, the outcome of the proceeding would have been different. (People v. Albanese (1984), 104 Ill. 2d 504, 525, citing Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) There is a presumption that counsel’s conduct falls within the range of reasonable professional assistance. (People v. Jennings (1986), 142 Ill. App. 3d 1014, 1029, 492 N.E.2d 600.) Defendant maintains that he was inadequately represented by counsel because his attorney failed to object to the hearsay statements and did not request the jury instruction previously discussed.

In the case at bar, as noted earlier, the evidence of defendant’s guilt is overwhelming. In response to the defendant’s assertion that counsel allowed permissible hearsay into evidence, we conclude that an examination of the record, taken as a whole, establishes that defense counsel made timely objections throughout the trial to preclude inadmissible testimony. Additionally, as noted above, many of the isolated incidents defendant complains of were not hearsay. Furthermore, counsel is not required to make losing motions or objections in order to provide effective legal assistance (People v. Lewis (1981), 88 Ill. 2d 129); and counsel’s performance evaluated from the whole record establishes that defendant received competent representation throughout trial (People v. Glass (1984), 128 Ill. App. 3d 869, 471 N.E.2d 597).

The second instance of defendant’s complaint, i.e., that counsel failed to tender instructions on the lesser-included offense, is likewise meritless. The decision whether to offer an instruction on a lesser-included offense is one of strategy which has no bearing on the competency of counsel. Defense counsel may have determined the defense of alibi and mistaken identity would gain the defendant an acquittal. (See People v. Webster (1988), 175 Ill. App. 3d 119, 128, 529 N.E.2d 727.) We will not reverse the trial court by now second-guessing defense counsel’s tactics. See People v. Rangel (1987), 163 Ill. App. 3d 730, 516 N.E.2d 936.

We conclude that defendant has failed to overcome the presumption that counsel’s alleged errors were not trial strategy and has also failed to demonstrate that the result of his trial would have been different. Webster, 175 Ill. App. 3d at 128, citing People v. Albanese (1984), 104 Ill. 2d 504.

Defendant’s final contention is that his sentence was improperly based on the judge’s predisposition to severely sentence sex offenders.

To support his contention, defendant maintains that the trial court improperly: (1) considered the fact that he had been convicted of a sexual offense as an aggravating factor, and (2) refused to consider imposing the minimum sentence even though there are strong mitigating factors in his favor. The defendant cites to People v. Zemke (1987), 159 Ill. App. 3d 624, 512 N.E.2d 374, where the Second District of the Appellate Court remanded the case for resentencing after finding that the sentence imposed by the trial court resulted from the fact that the defendant was a sex offender, a member of a class of offenders disfavored by the trial judge.

The sentence imposed by the trial court will be upheld on review absent an abuse of discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 153-54, 368 N.E.2d 882.) It is well established that the trial court is afforded considerable discretion in its determination and imposition of a proper sentence. (People v. La Pointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344.) Similarly, it is established pursuant to the Illinois Constitution that “[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.

The proper sentence to be imposed should be based upon the particular circumstances of each individual case. (People v. Perruquet (1977), 68 Ill. 2d 149, 154, 368 N.E.2d 882; People v. Bolyard (1975), 61 Ill. 2d 583, 589, 338 N.E.2d 168.) The factors to be considered in imposing a sentence include the nature of the act constituting the crime, credibility, demeanor, general moral character, social environment, mentality, habits and age of the defendant, and the possibility of rehabilitation. People v. Saldivar (1986), 113 Ill. 2d 256, 268, 497 N.E.2d 1138; People v. Stewart (1984), 104 Ill. 2d 463, 492, 473 N.E.2d 1227; People v. Dukett (1974), 56 Ill. 2d 432, 452, 308 N.E.2d 432.

In the case at bar, the defendant was convicted of aggravated criminal sexual assault and unlawful restraint, crimes committed against a 12-year-old girl. A conviction for aggravated criminal sexual assault, a Class X felony, carries a sentence of from 6 to 30 years. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—1(a)(3).) The defendant was sentenced to 12 years’ imprisonment, a sentence well within the statutory range. However, as earlier noted, defendant argues that certain mitigating factors and the judge’s disfavor of sex offenders warrant a reduction in his sentence.

The record indicates the following at the time the defendant was arrested. He was 23 years old and unemployed. He dropped out of high school in his junior year, but enrolled in class to receive a high school equivalency certificate (GED) subsequent to his arrest. He was drug free but did smoke marijuana for a period of time when he was 21 years old. He was not married, but was residing with the mother of his two children. Although he suffered no physical or mental problems, defendant has been an alcohol abuser since the rape of his girlfriend and burglary of her apartment.

The record also discloses the defendant has a good family background, except for reoccurring problems with his step-father over the years. He has no prior criminal record and a fair employment record. During the sentencing hearing, the wife of a minister, a friend of the defendant’s mother for over 30 years, testified in his behalf. Additionally, the defendant’s mother testified in his behalf and he testified on his own behalf. The State argues that an aggravating factor is the defendant’s anger towards everyone and the fact that he attacked, assaulted and threatened harm to a minor, a 13-year-old girl. (The record is unclear whether the complainant was 12 or 13 years old at the time of the incident.)

The supreme court has set forth the standard for review of the propriety of a sentence. Citing La Pointe, the supreme court in People v. Younger (1986), 112 Ill. 2d 422, 494 N.E.2d 145, stated:

“ ‘The determination and imposition of a sentence is a matter involving considerable judicial discretion, and our recent cases have repeatedly emphasized that the standard of review to be applied in determining whether a sentence is excessive is: Did the trial judge abuse his discretion in imposing that sentence? [Citations.]
* * *
The Unified Code of Corrections vests a wide discretion in sentencing judges in order to permit reasoned judgments as to the penalty appropriate to the particular circumstances of each case. [Citation.] We held in Perruquet [68 Ill. 2d 149], and emphasize here that “the trial court is normally the proper forum in which a suitable sentence is to be determined and the trial judge’s decisions in regard to sentencing are entitled to great deference and weight.” 68 Ill. 2d 149, 154.’ ” 112 Ill. 2d at 427, quoting People v. La Pointe (1981), 88 Ill. 2d 482, 492-93.

Here, in sentencing the defendant, the trial judge took into consideration the effect the incident would have on the complainant. The court stated that while the defendant would do his time and come out, the complainant would have to live with the incident for the rest of her life. The judge added that the defendant committed what he considered one of the most despicable crimes that exist and that he was very severe in punishments in sexual cases, particularly in ones involving children; however, the record discloses that the judge considered other factors in aggravation. The court considered the factor of the threatened harm to the complainant, i.e., the defendant had threatened to kill her and the factor of the public’s safety, i.e., that the defendant was angry because someone had raped his girlfriend. We believe it was proper for the court to consider the public safety and the harm or threatened harm caused to the victim as factors in aggravation. See People v. Saldivar (1986), 113 Ill. 2d 256, 269, 497 N.E.2d 1138.

We further believe that the mitigating factors offered by the defendant, that he had no prior convictions, was regularly employed, and had a relatively stable family background, required a balance with the factors in aggravation. The record reveals that the trial judge weighed the mitigating factors presented to it before imposing the sentence of 12 years for aggravated criminal sexual assault; nevertheless, the complainant was a minor, who was threatened by the defendant at gunpoint while walking to her class at the neighborhood grammar school. The defendant was unemployed, angry at the world because of a rape committed against his girlfriend, and an alcohol abuser. In our opinion, the sentence imposed is not highly disproportionate to the offense and is not an abuse of discretion. Accord People v. Williams (1986), 146 Ill. App. 3d 638, 497 N.E.2d 192.

Defendant asserts that the trial judge was predisposed to severely punish sex offenders. (Zemke, 159 Ill. App. 3d at 629.) We have examined the record and conclude that the defendant has failed to demonstrate that judicial prejudice was the factor which resulted in his sentence or that the sentence imposed was excessive under the circumstances. Hence, we decline to follow the Zemke decision under the circumstances here. In Zemke, the court considered the trial judge’s refusal to consider probation and his imposition of the maximum sentence possible, primarily because defendant was a member of class of offenders disfavored by the judge, a result which may have been harsh and unnecessary under the facts there presented. This was not the situation in the present case.

Here, while the record does disclose that the trial judge held strong opinions about sex offenders, especially ones involving children, the record does not indicate that the trial judge automatically imposed the 12-year-sentence because of these views.

The trial judge noted:

. “When I step on this bench, I never know what I am going to sentence a young man until I hear everything. And as I sat here now, I didn’t know until I heard all the evidence.”

Although the judge’s comments may have been improper, he did properly consider the serious and perverse nature of the actions the defendant committed against a child. This action did warrant some admonishments from the trial court concerning punishment in sexual offense cases. We conclude that when reviewed as a whole, the record does not reflect that the trial judge imposed the sentence because of his personal views about sex offenders and further notice that the sentence was not excessive under the circumstances. See People v. Keyes (1988), 175 Ill. App. 3d 1013, 1018, 530 N.E.2d 708. See also People v. Spears (1988), 169 Ill. App. 3d 470, 525 N.E.2d 877, appeal denied (1988), 122 Ill. 2d 589, 530 N.E.2d 259; People v. Williams (1986), 146 Ill. App. 3d 767, 497 N.E.2d 377; People v. Glass (1986), 144 Ill. App. 3d 296, 494 N.E.2d 886. Accord People v. Van Ostran (1988), 168 Ill. App. 3d 517, 522 N.E.2d 851; People v. Bollman (1987), 163 Ill. App. 3d 621, 516 N.E.2d 870, appeal denied (1988), 119 Ill. 2d 561, 522 N.E.2d 1248. Compare People v. Zemke (1987), 159 Ill. App. 3d 629, 512 N.E.2d 374.

Therefore, since we find that the sentence falls within the permissive statutory limit, and the record does not reveal an abuse of discretion, the sentence will not be disturbed on review.

Accordingly, for all of the above reasons, the judgment of the circuit court is affirmed.

Judgment affirmed.

QUINLAN and O’CONNOR, JJ., concur.