Find Legal Information

THIRD DIVISION
May 28, 2003

Among the matters to be decided in this predatory criminalsexual assault case is the State's suggestion that we abandon therequirement that the occurrence of a crime cannot be establishedsolely by a defendant's uncorroborated confession -- the corpusdelicti rule.

The issue arises from a jury verdict finding Samuel Richmondguilty of two counts of predatory criminal sexual assault of asix-year-old female, R.J. It has impact on one of the counts,where Richmond received a sentence of 60 years. His sentence onthe other count, a consecutive term of 30 years, is not affectedby our view of the viability of the corpus delicti rule.

Richmond contends: (1) his conviction for one of the countsshould be reversed because it was based solely on his confession,contrary to the rule of corpus delicti; (2) he was denied his dueprocess right to a fair trial where the State gave the entireopening statement from the perspective of the victim; (3) hisrights to trial by jury and due process were violated by errorsin several jury instructions; (4) he was subjected to an improperdouble enhancement where the trial court sentenced him to anenhanced term of 60 years' imprisonment on one of the convictionsbased on a factor that was also an element of the crime charged;and (5) the trial court abused its discretion in imposing thesentences.

We reverse one of the convictions and the corresponding 60-year prison term and affirm the remaining conviction and its 30-year prison term. Based on the reversal of the conviction andsentence, we need not address Richmond's contention challengingthe 60-year sentence.

BACKGROUND

Richmond was indicted for, among other things, two counts ofpredatory criminal sexual assault under 720 ILCS 5/12-14.1(a)(1)(West 1998). The first count charged contact between R.J.'s anusand Richmond's penis. The second charged contact between R.J.'svagina and Richmond's penis.

At the trial, R.J. testified that on August 8, 1998, she wentto her friend Keyshaunda's apartment to see if she could play. Keyshaunda's uncle, Richmond, answered the door and told R.J.Keyshaunda was not home. R.J. then asked to see the baby,Richmond's nephew.

When R.J. went into the house to see the baby, Richmondpushed her onto the bed, pulled down her shorts, "pulled histhing out," and "freaked" her, which R.J. explained meant that heput his private part in her butt. Richmond then went to thebathroom, and R.J. tried to run away. But Richmond came out ofthe bathroom and did it again. When Richmond stopped, he toldher that if she told her parents, he would do it again. He alsogave her some money.

After the incident, R.J. ran home crying and told her mother,Felicia Fox, that Richmond "freaked" her. R.J. said repeatedly"it hurts" and pointed down toward her back. When Fox pulledR.J.'s shorts and pants down, Fox saw what she thought was bloodon R.J.'s panties, and she pulled R.J.'s shorts back up. Foxtook R.J. to Keyshaunda's house, where R.J. identified Richmond. Richmond denied doing anything and told Fox he did not touch R.J. Fox and R.J. left the apartment; Fox called 9-1-1. An ambulancearrived and took R.J. and Fox to South Shore Hospital.

At the hospital, Dr. Chandra Anand examined R.J. R.J.appeared distressed and told the doctor Richmond had put his"thing inside my butt." Dr. Anand found a half-moon shaped tearin R.J.'s anus, which was dilated and was consistent with anunlubricated adult male penis entering into the anus.

While at the hospital, Officer Patricia Watts spoke with R.J.and her mother. Officer Watts then located and arrestedRichmond.

After Richmond was taken to the police station, DetectiveBradley spoke with him. Bradley advised Richmond of his Mirandarights and asked him about the incident. Richmond deniedinvolvement in the incident. When Bradley explained theallegations against him, Richmond admitted involvement and madeinculpatory statements. Richmond repeated his statements toAssistant State's Attorney Steven Rosenblum, who reduced thestatements to writing. Rosenblum reviewed the statement withRichmond; Bradley, Rosenblum, and Richmond signed the statement.

Richmond's statement was read to the jury. It was consistentwith R.J.'s account in nearly all respects, except for onesignificant difference. In the statement, Richmond said thatbefore he penetrated R.J.'s anus, "he placed his penis on[R.J.]'s vagina and tried to put it in a couple of times," butcould not.

Richmond did not testify or present any witnesses on hisbehalf.

At the close of trial, the jury found Richmond guilty of bothcounts of predatory criminal sexual assault. After a sentencinghearing, the trial court sentenced Richmond to an extended termof 60 years' imprisonment on the penis-to-vagina count and to 30years' imprisonment on the penis-to-anus count.

DECISION

I. CORPUS DELICTI

Richmond contends the evidence was insufficient to supportthe conviction on the penis-to-vagina count because the onlyevidence of that crime came from his statement. This, he says,is insufficient because the corpus delicti cannot be proven bythe defendant's statement alone.

When reviewing the sufficiency of the evidence, we willreverse a defendant's conviction only if, viewing the evidence inthe light most favorable to the State, no rational finder of factcould have found the crime to have been proved beyond areasonable doubt. People v. Villarreal, 198 Ill. 2d 209, 231,761 N.E.2d 1175 (2001). To sustain a conviction, the State mustprove (1) the corpus delicti (that a crime occurred) and (2) thecrime was committed by the person charged. People v. Cloutier,156 Ill. 2d 483, 503, 622 N.E.2d 774 (1993).

The corpus delicti cannot be proven by a defendant'sconfession alone. Where the defendant's confession is part ofthe proof of the corpus delicti, the State must provideindependent corroborating evidence. Cloutier, 156 Ill. 2d at503. The corroborative evidence does not have to prove corpusdelicti beyond a reasonable doubt, but must tend to confirm thedefendant's confession. Cloutier, 156 Ill. 2d at 503.

The State urges us to abandon the long-standing corpusdelicti rule in Illinois because it is inconsistent with thestandard of review. We decline.

Our supreme court has repeatedly said independentcorroboration is required where the defendant's confession ispart of the proof. See, e.g., Cloutier, 156 Ill. 2d at 503;People v. Furby, 138 Ill. 2d 434, 563 N.E.2d 421 (1990). Thisrequirement arose from "historical mistrust of extrajudicialconfessions. Two reasons for this mistrust have commonly beencited: confessions are unreliable if coerced; and, for variouspsychological reasons, persons 'confess' to crimes that eitherhave never occurred or for which they are not legallyresponsible." People v. Dalton, 91 Ill. 2d 22, 29, 434 N.E.2d1127 (1982); see also Furby, 138 Ill. 2d at 447. Although urgedto reject the corpus delicti rule, the supreme court refused toabandon it. Dalton, 91 Ill. 2d at 29-30. We are bound by thisprecedent. See People v. Goebel, 284 Ill. App. 3d 618, 624, 672N.E.2d 837 (1996) ("We are obliged to follow the precedents ofour supreme court").

We now consider whether the evidence presented by the Statein this case was sufficient to sustain the penis-to-vaginaconviction. The charge at issue was brought under section 5/12-14.1(a)(1) of the Illinois Criminal Code of 1961:

"(a) The accused commits predatory criminal sexual assault ofa child if:

(1) the accused was 17 years of age or over and commits anact of sexual penetration with a victim who was under 13years of age when the act was committed." 720 ILCS 5/12-14.1(a)(1) (West 1998).

"Sexual penetration" is defined in relevant part as:

"any contact, however slight, between the sex organ or anusof one person by an object, the sex organ, mouth or anus ofanother person, or any intrusion, however slight, of any partof the body of one person or of any animal or object into thesex organ or anus of another person, including but notlimited to cunnilingus, fellatio or anal penetration." 720ILCS 5/12-12(f) (West 1998).

Under this statute, the State charged contact between Richmond'spenis and R.J.'s vagina.

Evidence of contact between Richmond's penis and R.J.'svagina came entirely from Richmond's statement. In fact, thestatement's reference to vaginal contact was brief and non-specific. All the other evidence provided by the State at trialproved only anal penetration. Nothing in the record corroboratedthe penis-to-vagina portion of Richmond's statement. We alsoreject the State's contention that mere proximity between R.J.'svagina and anus tended to prove his penis also came into contactwith her vagina. That is pure speculation.

Because the State offered no independent evidencecorroborating Richmond's statement about penis-to-vagina contact,the evidence was insufficient to convict Richmond on this count.We reverse this conviction and the 60-year prison sentence. Weaddress Richmond's remaining contentions as they relate only tothe conviction based on anal penetration.

II. OPENING STATEMENT

The State delivered its entire opening statement in thefirst-person from R.J.'s perspective. The State began with, "Hi. My name is RJ, and I'm 8 years old *** I'm going to tell youabout something that happened a couple of years ago when I wasjust a little kid." Not long into the opening statement, theState also said, still in the first-person and from R.J.'sperspective, "Now, my State's Attorneys, Miss Roseanne McDonnelland Theo Jamison then, they're going to present this evidence toyou today."

Richmond contends the trial court erred in allowing the Stateto give its opening statement from the first-person perspectiveof R.J. This, Richmond says, allowed the State to improperlybolster the testimony of R.J., causing him substantial prejudice.

The State contends Richmond forfeited our review of thisissue by not properly preserving it. Although Richmond objectedduring the opening statement, he did not specifically raise theissue in his post-trial motion.

To preserve an issue for review, a defendant must make both atimely objection and "specifically include the objection in apost-trial motion." (Emphasis added.) People v. Nieves, 193Ill. 2d 513, 524, 739 N.E.2d 1277 (2000). Here, becauseRichmond did not specifically raise the issue in his post-trialmotion, he did not properly preserve the issue for review. Richmond contends we should review this issue under the doctrineof plain error.

We may review an error not properly preserved if we determinethat plain error occurred. People v. Chapman, 194 Ill. 2d 186,225, 743 N.E.2d 48 (2000). We must first consider whether anyerror was made. Chapman, 194 Ill. 2d at 226. If we find error,we then consider whether this error was plain error. Chapman,194 Ill. 2d at 226. Plain error may be invoked in twocircumstances: (1) where the evidence is closely balanced, and(2) where the error is of such magnitude that there is a"substantial risk that the accused was denied a fair andimpartial trial, and remedying the errors is necessary topreserve the integrity of the judicial process." People v.Vargas, 174 Ill. 2d 355, 363, 673 N.E.2d 1037 (1996).

We turn first to the question of whether any error occurred. The purpose of an opening statement is to advise the trier offact what the evidence will show. People v. Foss, 201 Ill. App.3d 91, 94, 559 N.E.2d 254 (1990). In a criminal case, theopening statement should describe the facts the State in goodfaith expects to prove. Foss, 201 Ill. App. 3d at 94. The Stateis allowed great latitude in making the opening statement. People v. Pasch, 152 Ill. 2d 133, 184, 604 N.E.2d 294 (1992). Weknow of no rule that requires it to be dull and passionless.

However, the State, by its remarks, may not improperlybolster a witness's credibility. See People v. Soto, 336 Ill.App. 3d 238, 252, 783 N.E.2d 82 (2002). The reason for such arule is that:

"[t]he State's Attorney represents the People of the State ofIllinois in the courtroom. The words he speaks carry theauthority of the People and of the State. Thus, the State'sAttorney must choose his words carefully so that he does notuse that authority to persuade a jury that there is greaterauthenticity in what he says than in what the defense says. It is the duty solely of the jury to determine thecredibility of the witnesses and guilt or innocence of theaccused; it is not the privilege of the prosecutor." Peoplev. Valdery, 65 Ill. App. 3d 375, 378, 381 N.E.2d 1217(1978).⁽¹⁾

Although the use of a first-person delivery may not be errorunder other circumstances, in this case it improperly bolsteredthe credibility of the State's star witness, an eight-year old. The State delivered R.J.'s version of the facts much moreeloquently than R.J. did from the witness stand. Moreover, theState continued to use R.J.'s perspective when discussingevidence that, according to the trial testimony, R.J. was neverexposed to. For example, "R.J." told the jury in openingstatement about Richmond's confession, even though she was notpresent when Richmond made the statement.

The State's use of "my State's Attorneys *** they're going topresent this evidence to you today" further placed the State inthe role of a witness. The State's method of delivery impliedthe State's Attorneys would personally vouch for the credibilityof R.J.'s testimony.

Even though the trial court erred in allowing the State todeliver this improper opening statement, it does not reach thelevel of plain error. First, the evidence was not closelybalanced. The State presented R.J.'s testimony that Richmondpenetrated her anus with his penis. Cox also testified R.J.immediately told her about the incident when R.J. got home. R.J.'s account remained constant. Moreover, Dr. Anand testifiedhe observed a tear in R.J.'s anus that was consistent withpenetration by a penis. Second, the error did not rise to amagnitude that would deprive Richmond of a fair trial. Becausethis was not plain error, Richmond forfeited our review byfailing to properly preserve the issue for review.

In any case, the verdict will not be disturbed unless theremarks resulted in substantial prejudice to the defendant; thatis, absent those remarks the verdict would have been different. Pasch, 152 Ill. 2d at 185. Richmond was not substantiallyprejudiced by the State's opening statement. Given the strengthof the State's case, we cannot say the verdict would have beendifferent without the improper comments.

We add, however, the State assumes a risk of reversal when itmakes a first-person opening statement like the one in this case.

III. JURY INSTRUCTIONS

A. IPI No. 11.66

Prior to trial, the State made a motion under 725 ILCS 5/115-10 (West 1998) to admit Cox's testimony about the statement R.J.made to her when R.J. returned home the day of the assault. Thetrial court held a hearing and concluded the statements wereadmissible under both section 115-10 and the spontaneousdeclaration exception to the hearsay rule. At trial, Coxtestified to R.J.'s statements. The trial court did not give aninstruction to the jury, as required under section 115-10,informing the jury that it should consider R.J.'s age andmaturity in assessing the weight and credibility to be assignedto the hearsay statements. Illinois Pattern Jury Instructions,Criminal (3d ed. 1992) (hereinafter IPI Criminal) No. 11.66 isthe pattern instruction that tracks the language of the statute.

Richmond contends he was denied his rights to due process andtrial by jury when the trial court failed to give IPI CriminalNo. 11.66. This error, Richmond says, was compounded by thetrial court's failure to include in IPI Criminal No. 1.02 age asa factor the jury could consider in evaluating the credibility ofR.J.'s testimony.

Richmond admits he failed to tender the appropriateinstruction to the trial court. He also acknowledges his failureto raise the issue in his post-trial motion. Richmond contendswe should nonetheless consider the issue under the doctrine ofplain error. Alternatively, Richmond contends he was deniedeffective assistance of counsel by his counsel's failure totender the appropriate instruction and preserve the issue in thepost-trial motion.

Section 115-10 allows for the admissibility in certaincircumstances of out-of-court statements by an alleged victim ofsexual acts who is under the age of 13. Section 115-10(c)provides in relevant part:

"(c) If a statement is admitted pursuant to this Section, thecourt shall instruct the jury that it is for the jury todetermine the weight and credibility to be given thestatement and that, in making the determination, it shallconsider the age and maturity of the child, *** the nature ofthe statement, the circumstances under which the statementwas made, and any other relevant factor." 725 ILCS 5/115-10(West 1998).

IPI Criminal No. 11.66 tracks the language of section 115-10(c). People v. Williams, 193 Ill. 2d 306, 356, 739 N.E.2d 455(2000).

People v. Williams is instructive here. In that case, thetrial court held statements of a child were admissible under bothsection 115-10 and the spontaneous declaration exception to thehearsay rule. However, at trial, the court did not give IPICriminal No. 11.66. On appeal, the defendant contended thefailure to give IPI Criminal No. 11.66 amounted to reversibleerror. The defendant admitted he failed to properly preserve theissue for review by not tendering the appropriate instruction orby objecting to the trial court's failure to give theinstruction. But the defendant contended the error was plainerror. The supreme court held there was no error: "IPI Criminal3d No. 11.66 is not required when statements are admitted underthe spontaneous declaration exception." Williams, 193 Ill. 2d at358.

Here, as in Williams, the trial court found the statementsalso were admissible under the spontaneous declaration exceptionto the hearsay rule. While it would have been better practiceto give the jury IPI Criminal 11.66, failure to do so does notrise to the level of error.

The jury was provided with the following instruction based onIPI Criminal No. 1.02, which stated:

"Only you are the judges of the believability of thewitnesses and of the weight to be given to the testimony ofeach of them. In considering the testimony of any witness,you may take into account his ability and opportunity toobserve, his memory, his manner while testifying, anyinterest, bias, or prejudice he may have, and thereasonableness of his testimony considered in the light ofall the evidence in the case."

Although the insertion of the words "his age" after"opportunity to observe" would have been appropriate given thefacts in this case, this omission did not deprive defendant of asubstantial right. See People v. Booker, 224 Ill. App. 3d 542,556, 585 N.E.2d 1274 (1992) (giving the "standard instruction[,which] advised the jurors to consider the witness' ability andopportunity to observe" implied that the jury should consider ageand rendered the failure to give IPI Criminal No. 11.67 (now IPICriminal No. 11.66) harmless).

Richmond's contention that he was denied ineffectiveassistance of counsel also fails. To succeed on a claim ofineffective assistance of counsel, a defendant must show that hiscounsel's performance was so seriously deficient as to fall belowan objective standard of reasonableness and that the deficientperformance so prejudiced him as to deny him a fair trial. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052,2064, 80 L. Ed. 2d 674, 693 (1984). To establish prejudice, thedefendant must show "that there is a reasonable probability that,but for counsel's unprofessional errors, the result of theproceeding would have been different." People v. Metcalfe, 202Ill. 2d 544, 562, 782 N.E.2d 263 (2002). The defendant'scontention may be disposed of on the ground that he suffered noprejudice from the alleged error without determining whether hiscounsel's performance was deficient. Metcalfe, 202 Ill. 2d at562.

Given the strength of the State's case, we cannot say theresult of the proceeding would have been any different absentdefense counsel's alleged mistakes. Richmond's contention ofineffective assistance of counsel fails. See Booker, 224 Ill.App. 3d at 556 (no ineffective assistance of counsel where thedefendant was not prejudiced by the use of an instruction basedon IPI Criminal No. 1.02 and the omission of IPI Criminal No.11.67).

B. IPI Criminal No. 3.06-3.07

At trial, the State admitted evidence of a statement allegedto have been made by Richmond. Defense counsel cross-examinedRosenblum about whether he had videotaped the confession or givenRichmond the option of writing out the statement himself orhaving the statement tape-recorded. Defense counsel cross-examined Bradley about whether Richmond's statement was tape-recorded, video-recorded, or recorded by a court reporter. Inclosing argument, defense counsel argued Richmond did not makethe statement attributed to him.

At the close of the evidence, the trial court gave thefollowing instruction to the jury, based on IPI Criminal No.3.06-07:

"You have before you evidence that the defendant madestatement [sic] relating to the offense charged in theindictment. It is for you to determine what weight should begiven to the statements. In determining the weight to begiven to a statement, you should consider all of thecircumstances under which it was made."

During deliberations, the jury submitted a note to the courtin which it asked whether Richmond was given an opportunity towrite out his own statement. The court instructed the jury toconsider the evidence it had received.

Richmond contends the trial court erred when it failed toinclude in the instruction that it was for the jury to determinewhether the defendant made the statement. Richmond says he wasprejudiced by this error as evidenced by the jury's question tothe court. The State contends Richmond forfeited review of thisissue by failing to properly raise it in his post-trial motion. We disagree with the State.

At the instruction conference, Richmond specifically objectedto this instruction on the basis that it improperly omitted theportion instructing the jury to determine whether the defendantmade the statement. In his post-trial motion, Richmond contendedthe court "erred when overruling defendant's objections to giving*** People's Instruction 10, I.P.I. 3.06-3.07." This wassufficient to preserve the issue for appellate review. SeeNieves, 193 Ill. 2d at 524.

A defendant is entitled to have the jury instructed on histheory of the case if there is some foundation for theinstruction in evidence. People v. Simms, 192 Ill. 2d 348, 412,736 N.E.2d 1092 (2000). If there is any such evidence supportingthe use of the instruction, the trial court abuses its discretionin refusing the instruction. People v. Crane, 145 Ill. 2d 520,526, 585 N.E.2d 99 (1991).

IPI Criminal No. 3.06-3.07 reads:

You have before you evidence that [(the)(a)] defendant made[a] statement[s] relating to the offense[s] charged in the[(indictment)(information)(complaint)]. It is for you todetermine [whether the defendant made the statement[s], and,if so,] what weight should be given to the statement[s]. Indetermining the weight to be given to a statement, you shouldconsider all of the circumstances under which it was made." (Emphasis added.) IPI Criminal No. 3.06-3.07.

The committee notes to the rule state that the underlinedmaterial should be omitted only where "the defendant admitsmaking all the material statements attributed to him." SeveralIllinois cases have held there is no error in omitting thisphrase when the defendant does not deny making the statement. See, e.g., People v. Ramos, 318 Ill. App. 3d 181, 188, 742 N.E.2d763 (2000); People v. Moore, 294 Ill. App. 3d 410, 417, 689N.E.2d 1181 (1998); People v. Garner, 248 Ill. App. 3d 985, 992,618 N.E.2d 753 (1993). We do not read those cases as holding thedefendant must take the stand to deny making the statement.

We believe defense counsel's cross-examinations of Rosenblumand Bradley could support the inference argued by defense counselbefore the jury -- all or part of Richmond's statement wasfabricated.

During the cross of Rosenblum:

"Q: You did not take a video statement of Mr. Richmond,correct?

A: That's correct.

Q: ***you didn't give Mr. Richmond the option of writing ithimself, did you?

A: No, sir.

Q: In his own words, right?

A: No, sir.

Q: And in his own handwriting, correct?

A: No, sir, I did not. I wrote out the statement.

***

Q: But it was not verbatim?

A: Correct."

During the cross-examination of Bradley defense counsel againestablished Richmond did not write the statement and thestatement was not tape-recorded or video-recorded. Bradley wasasked:

"Q: The only 2 persons to witness this supposed statementwere you, police officer, Mr. Rosenblum and [sic]Assistant State's Attorney, correct?

A: That's correct."

We conclude the trial court erred when it overruledRichmond's objection to the instruction. While the inferencedrawn by defense counsel rested on a thin foundation, itcontained enough vitality for presentation to the jury.

Any error in the instruction, however, was harmless. Evenwithout Richmond's confession, the State's penis-to-anus case wasextremely strong, consisting of R.J.'s unimpeached testimony,Cox's testimony about R.J.'s statement immediately after theincident, medical evidence showing a tear in R.J.'s anus, and Dr.Anand's opinion testimony that the tear was consistent withpenetration by a penis. Moreover, the jury's question, ifanything, revealed the jury was considering the circumstancesunder which the statement was made.⁽²⁾ Had the jury been given theproper instruction, the result of the trial would not have beendifferent. People v. Kirchner, 194 Ill. 2d 502, 557, 743 N.E.2d94 (2000) (an error in a jury instruction is harmless where theresult of the trial would not have been different had the jurybeen properly instructed).

IV. SENTENCING

Richmond next contends the trial court abused it discretionin sentencing him to 30 years' imprisonment. He asks us toreduce the sentence to 10 years' imprisonment, a sentence thatwould better reflect his age, personal history, andrehabilitative potential, but still sufficient to adequatelypunish him.

Sentencing decisions are entitled to great weight anddeference. People v. Latona, 184 Ill. 2d 260, 272, 703 N.E.2d901 (1998). It is a function of the trial court to balancerelevant factors and make a reasoned decision as to theappropriate sentence in each case. Latona, 184 Ill. 2d at 272-73. Absent an abuse of its discretion, we should not substituteour judgment for that of the trial court. People v. Jones, 323Ill. App. 3d 451, 460, 752 N.E.2d 511 (2001).

In mitigation, Richmond presented evidence of his age at thetime of the crime (17), his good character, and his ties to thecommunity. He also presented testimony that he was a volunteerat an organization dedicated to helping children and assistedelderly people in his neighborhood. His sister testified heregularly babysat her children and they missed him. Richmondalso expressed how sorry he was for what happened to R.J.

In aggravation, the State asked the court to consider thephysical injury suffered by R.J. and her young age. Evidencebefore the court also showed Richmond was found delinquent in1996 and again in 1997 for unlawful use of a weapon andpossession of a firearm. The State also noted that based on thepre-sentence investigation report, Richmond has a 20-month-oldchild with a 17-year-old girl. This, the State argued, showedRichmond had sex with an underaged girl. The State also pointedto evidence that Richmond consumed alcohol in jail. A victimimpact statement written by Fox also was introduced.

At the close of the hearing, the court said it considered allthe evidence presented in aggravation and mitigation andsentenced Richmond to 30 years' imprisonment on the penis-to-anusconviction. The sentence imposed fell within the statutoryrange. See 720 ILCS 5/12-14.1(b) (West 1998) (violation ofsubsection (a)(1) is a Class X felony); 730 ILCS 5/5-8-1(a)(3)(West 1998) (the standard range for a Class X felony is 6 to 30years' imprisonment).

We find the trial court did not abuse its discretion insentencing Richmond to 30 years' imprisonment.

CONCLUSION

For the foregoing reasons, we reverse Richmond's convictionbased on contact between his penis and R.J.'s vagina and theaccompanying 60-year prison sentence (Count 2). We affirmRichmond's conviction based on contact between R.J.'s anus andRichmond's penis and the accompanying 30-year prison sentence(Count 3).

Reversed in part; affirmed in part.

HALL, J., concurs.

JUSTICE HOFFMAN, specially concurring:

I concur with the result reached by the majority in this caseand also with its well-reasoned analysis of each of the relevantissues, save one. I write separately to register my disagreementwith the majority's conclusion that the trial court erred when itfailed to include within its instruction based upon IllinoisPattern Jury Instructions, Criminal, No. 3.06-3.07 (3d ed. 1996)(hereinafter IPI Criminal 3d No. 3.06-3.07) the phrase advising thejury that it was to determine whether the defendant had made thestatement attributed to him.

IPI Criminal 3d No. 3.06-3.07 reads as follows:

"You have before you evidence that [(the) (a)]defendant made [a] statement[s] relating to the offense[s]charged in the [(indictment) (information) (complaint)]. It is for you to determine [whether the defendant made thestatement[s], and, if so,] what weight should be given tothe statement[s]. In determining the weight to be given toa statement, you should consider all of the circumstancesunder which it was made." (Emphasis added.)

As noted by the majority, the instruction given in this caseomitted the underlined phrase. The committee note following theinstruction states that the phrase is to be "deleted only when thedefendant admits making all of the material statements attributedto him." IPI Criminal 3d No. 3.06-3.07, Committee Note. However,this court has consistently held that the instruction is sufficientwithout inclusion of the underlined phrase in circumstances wherethe defendant presents no evidence that he did not make thestatement. See People v. Ramos, 318 Ill. App. 3d 181, 188, 742N.E.2d 763 (2000); People v. Moore, 294 Ill. App. 3d 410, 417, 689N.E.2d 1181 (1998); People v. Garner, 248 Ill. App. 3d 985, 992-93,618 N.E.2d 753 (1993); People v. Lee, 151 Ill. App. 3d 510, 530,502 N.E.2d 399 (1986); People v. Fleming, 103 Ill. App. 3d 194,198, 431 N.E.2d 16 (1981).

Although the majority acknowledges this court's holdings inRamos, Moore and Garner and the fact that the defendant in thiscase did not deny making the statement attributed to him, itnevertheless finds that the trial court erred, albeit harmlessly,in failing to include the underlined phrase it its instruction tothe jury. In support of its finding in this regard, the majorityreferences certain questions asked by defense counsel during hiscross-examination of Rosenblum and Bradley and concludes that thejury might have inferred that all or part of the defendant'sstatement was fabricated. I disagree.

Defense counsel was able to get Rosenblum to acknowledge thatthe defendant's statement was not videotaped, that the defendantwas not offered the option of writing the statement himself, andthat the statement was not recorded verbatim. Bradley acknowledgedthat only he and Rosenblum witnessed the statement. I fail to see,however, how these answers could support an inference that thedefendant's statement was fabricated.

A jury is permitted to infer facts only if the inference is arational one. Probability is the test of rationality. A jury isnot permitted to engage in guess, speculation or conjecture. SeeConsolino v. Thompson, 127 Ill. App. 3d 31, 34, 468 N.E.2d 422(1984), citing James, Sufficiency of the Evidence and Jury-ControlDevices Available Before Verdict, 47 Va. L. Rev. 218, 221-22(1961). To conclude, based solely on the cross-examination ofRosenblum and Bradley, that the defendant's statement wasfabricated would be nothing more than speculation. Their testimonysimply could not, standing alone, support a conclusion that it isprobable that the statement was fabricated in whole or in part.

I agree with the majority when it states that Ramos, Moore, andGarner do not stand for the proposition that a defendant must takethe stand and deny making the statement attributed to him before heis entitled to have the underlined portion of the instructionincluded in the court's charge to the jury. I do not, however,subscribe to the proposition that innuendoes and insinuations,wholly unsupported by any evidence, are sufficient to entitle adefendant to an instruction containing the phrase at issue.

In this case, the State's evidence that the defendant made thestatement was uncontradicted. The fact that it was not videotaped,not recorded verbatim, and not in the defendant's own hand writingare certainly circumstances that the jury should consider indetermining the weight to be given to the statement, but thesefacts, either individually or collectively, hardly constituteevidence supporting a reasonable inference that the statement wasfabricated.

For these reasons, I find no error in the instruction given bythe trial court in this case.

1. Although the statements made in Valdery were made in thecontext of a prosecution closing argument, the court's reasoningis equally applicable, if not more so, to a prosecution openingstatement.

2. We note the jury's question about whether Richmond wasgiven the opportunity to write out his own statement was answeredduring the cross-examination of Rosenblum. The jury was providedwith the transcript of Rosenblum's testimony upon request.