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No. 2--02--0620

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

Following a jury trial, defendant, Robbie L. Bishop, was convicted of four counts of criminalsexual assault (720 ILCS 5/12--13(a)(1), (a)(3) (West 2002)) and four counts of aggravated criminalsexual assault (720 ILCS 5/12--14(a)(2) (West 2002)). Defendant was sentenced to 30-yearconcurrent terms for the counts of aggravated criminal sexual assault and 15-year concurrent termsfor the counts of criminal sexual assault. On appeal, defendant contends that (1) the trial court erredby denying his motion to suppress evidence obtained from his bedroom; (2) he was denied a fair trialdue to various prosecutorial comments and improper testimony; (3) counts II and VI omitted anessential element of the offense; (4) the indictment did not apprise him that the State intended to treathis conduct as multiple acts; (5) four of his convictions of criminal sexual assault should be vacatedas lesser included offenses of aggravated criminal sexual assault; (6) six of his convictions violate theone-act, one-crime rule because they were based on the same physical act; and (7) he must have anew sentencing hearing because the trial court erroneously imposed concurrent rather thanconsecutive sentences. We affirm in part, vacate in part, and remand with directions.

BACKGROUND

In an eight-count indictment, defendant was charged with four counts of aggravated criminalsexual assault and four counts of criminal sexual assault, all against his daughter, Q.B. Four countsalleged penile penetrations to Q.B.'s vagina between September 5, 1998, and December 5, 2000. Three counts alleged penile penetrations to Q.B.'s anus between September 1, 2000, and December5, 2000, and one count alleged penile penetration to Q.B.'s anus between September 5, 1998, andDecember 5, 2000. Count I alleged that defendant caused bodily harm to Q.B. by placing his penisin her vagina by the threat of force and causing her to become pregnant (aggravated criminal sexualassault). Count II alleged that defendant, a family member of Q.B., caused her bodily harm by placinghis penis in her vagina and causing her to become pregnant (aggravated criminal sexual assault). Count III alleged that defendant placed his penis in the vagina of Q.B. by the threat of force (criminalsexual assault). Count IV alleged that defendant, a family member of Q.B., placed his penis in hervagina when she was under the age of 18 (criminal sexual assault). Count V alleged that defendantcaused bodily harm to Q.B.'s anus by placing his penis in her anus by the threat of force (aggravatedcriminal sexual assault). Count VI alleged that defendant, a family member of Q.B., caused bodilyharm to her anus by placing his penis in her anus (aggravated criminal sexual assault). Count VIIalleged that defendant placed his penis in the anus of Q.B. by the threat of force (criminal sexualassault). Count VIII alleged that defendant, a family member of Q.B., placed his penis in her anuswhen she was under the age of 18 (criminal sexual assault).

On August 21, 2001, defendant filed a motion to suppress evidence obtained from hisbedroom. At an evidentiary hearing, Waukegan police detectives Anthony Joseph, FernandoVillafuerte, and Brian Mullen offered consistent testimony regarding events on December 5, 2000. On that day, Q.B., age 15, told the detectives that defendant was sexually abusing her. She informedthem that she lived with her sister and defendant and that defendant had gained custody of her whenshe was nine. Q.B. further informed the detectives that she had been assaulted by defendant in hisbedroom the night before. According to Q.B., defendant had used a condom. She told the detectivesthat they would find the soiled condom in a trash can in his bedroom. She also indicated that theywould find on a safe next to the bed a jar of Vaseline that defendant had used for lubrication. Inaddition, they would find in one of his dresser drawers birth control pills that he was making her take.

Q.B. accompanied the detectives to the residence that night and informed them that defendantwas at work. She opened the door with her keys and they followed her inside. After tending to herpuppy, Q.B. walked upstairs and pointed to a bedroom with an open door, indicating that it wasdefendant's bedroom. Q.B. did not indicate that the bedroom door was ever locked or that she wasnot allowed to go into the room. The detectives did not ask Q.B. if she had permission to go into thebedroom and did not seek defendant's consent to search the room. The trash can was visible fromthe hall. The detectives followed Q.B. into the bedroom and observed a soiled condom and a condomwrapper in the trash can. In addition, a jar of Vaseline was on top of a safe directly next todefendant's bed. The officers also recovered birth control pills in an opaque bag from a dresserdrawer that Q.B. instructed them to open. No other part of the bedroom or residence was searched. An evidence technician arrived 20 to 30 minutes later to photograph and collect the evidence.

Q.B. testified that she shared one bedroom with her sister and that the other bedroom wasdefendant's. Q.B. had keys to the residence because defendant was usually at work when shereturned from school. Q.B. was responsible for looking after her sister when defendant was at work. Defendant never kept his bedroom door locked or closed, and it was open when Q.B. was alone inthe house after school. Defendant never told Q.B. that she could not go into his bedroom or that noone else was allowed in the room. The only time defendant's door was closed was when he was inthe bedroom with one of his "friends." Defendant possessed a "Do not enter" sign and Q.B. knewthat he did not want "strangers" in the room. Q.B. was allowed to go in and out of his bedroom whenthe door was open.

Defendant testified that he was renting the house and had lived there with his two daughtersfor about a year and a half. Defendant generally worked from 3 a.m. to 2:30 p.m. According todefendant, he kept the door closed the majority of the time when he was not at home. He had a signthat said "Do not enter without knocking," but there was no key to lock the door from the outside. Q.B. was often in his room watching videos or sleeping. In early December 2000, defendant broughta woman home and found Q.B. in his bed. He told her to leave his room.

The trial court denied defendant's motion to suppress, concluding that Q.B. had commonauthority of the house and of the rooms in the house. In the court's view, Q.B. had authority to walkinto the bedroom "for whatever purpose," although defendant did not want her "hanging out in hisroom watching TV" because he may bring home "company." The court also found that Q.B. hadapparent authority to consent to the search of defendant's bedroom. According to the court, it wasreasonable for the detectives to believe that she had authority to be in the bedroom since the door wasopen and there was no sign indicating "Do not enter."

The case proceeded to trial on February 19, 2002. Prior to jury selection, defendant filed amotion to reconsider the denial of the motion to suppress. The trial court denied the motion,concluding that Q.B. possessed common authority over the bedroom and that defendant's testimonythat she lacked permission was not credible.

Terri DeWees, an emergency room nurse with training in sexual assault examinations, testifiedon behalf of the State. DeWees worked at St. Therese Hospital in December 2000. On the eveningof December 5, 2000, DeWees examined Q.B. Q.B. informed DeWees that defendant had put his"thing" in her "bottom." Q.B. further stated that these incidents had been occurring "most everynight" and had started when she was nine years old. When DeWees touched Q.B., she observed somepain or tenderness of the upper buttocks near the tailbone that could be consistent with paddling orsome type of penetration. There were no signs of vaginal injury. Upon examining Q.B.'s anus orrectal area, however, DeWees discovered two injuries. At the bottom of her anus, in the six o'clockposition, there was a two-millimeter abrasion. In addition, there was some apparent scar tissue at thethree o'clock position. DeWees explained that when a body suffers injury, scars or thickening of thetissue will form as a part of the healing process.

Q.B., age 16 at the time of trial, testified that she was either 10 or 12 when she and her sisterbegan living with defendant. Although some touching had occurred before she moved in with him,she had denied any sexual abuse to a worker at the Department of Children and Family Services(DCFS) on several occasions. Q.B. did not report any abuse because she wanted defendant back inher life. Although defendant was strict with Q.B. and her sister, she felt safe and loved, and hemaintained a nice home for them.

When Q.B. was 12, defendant started having her lie down in his bed with him. Sometimesshe would have her clothes on, other times she would not. With his hand, defendant would touch herbreasts, buttocks, and private area, but never inside her private part. He would also put his penisbetween her legs and rub it against her vagina. Sometimes she would face him and other times shewould face away. These incidents always occurred in defendant's bedroom. Defendant would callher into his room and say "I want to do something" or tell her to remove her clothes. If Q.B. refused,defendant would threaten to hurt her. Defendant would sometimes use a condom. In addition, hewould put Vaseline on her vagina and on his penis. When Q.B. was between the ages of 12 and 14,defendant called her into his bedroom two or three times a week.

When Q.B. was 14, during the month of July, defendant told Q.B. that she looked pregnant. On a subsequent night, Q.B. doubled over in pain. A pregnancy test that defendant purchased waspositive. The next day, Q.B. went to the Lake County Health Department. Q.B. signed in under thename of "Jasmine Smith" because defendant told her not to use her real name. The HealthDepartment confirmed that Q.B. was pregnant. Less than a week later, Q.B. made an appointmentto get an abortion. Until the pregnancy, defendant was having sexual contact with Q.B. about threetimes a week. After learning of the pregnancy, defendant did not have sexual contact with her untila couple of weeks after the abortion.

Following the abortion, defendant put his "private part" in her "behind" instead of betweenher legs. This caused Q.B. to cry. In addition, defendant would rub her breasts and vagina and thenhave her put Vaseline on his "private part." Defendant would lie on his back, tell Q.B. to "sit on it,"and move her waist up and down. Defendant would ejaculate during the encounters, sometimes intoa condom. Afterwards, Q.B. would shower and defendant would sit with her on a couch and tell herthat he was sorry and that he would never do it again. At times, he would cry and say he needed help. Q.B. did not tell anyone about these incidents until December 2000, despite being questionedby her paternal grandmother and aunt. On December 4, 2000, Q.B. got in trouble for not tellingdefendant that her girlfriend was walking her to school. Her girlfriend waited outside the door andnever came inside the house. Defendant "whooped" Q.B. on the buttocks with a thick woodenpaddle more than 20 times. The paddling made her cry. After defendant had sexual contact with herthe night of the paddling, Q.B. decided that she was tired of his conduct and of his promises. As aresult, she wrote a letter to her gym teacher.

Kelly Gannon, a forensic biologist at the Northern Illinois Police Crime Laboratory, testifiedthat she received a condom and other items for analysis. She identified sperm cells in and on thecondom.

Detective Mullen testified regarding the search of the residence on December 5, 2000. According to Detective Mullen, Q.B. was sent to the hospital and then interviewed at the policedepartment. During the interview, Q.B. informed the detectives that the most recent assault hadoccurred in defendant's bedroom the night before. According to Q.B., the detectives would find acondom, a jar of Vaseline, and some birth control pills in defendant's bedroom. All of the items wererecovered. Q.B. indicated to Detective Mullen that defendant had sexual contact with herapproximately 20 times.

The State's final witness was Peter Yallaly, a forensic scientist for the Northern Illinois PoliceCrime Laboratory. Yallaly compared samples of the condom itself and samples of the substance inthe condom to a blood sample from Q.B. and a saliva sample from defendant. Of the four samples,one of the two from the condom surface contained DNA from two different people. Yallaly opinedthat the profile from the condom matched the profile from defendant's saliva. Yallaly further opinedthat the "minor contributor" to the DNA on the condom was consistent with the blood standardreceived from Q.B. and that she could not be excluded as the source. However, due to the limitedamount of DNA on the sample tested, he was unable to say whether the minor contributor was maleor female.

The sole witness for the defense was defendant. He denied ever placing his penis in Q.B.'svagina or anus or touching her breasts or vagina. Defendant stated that, on December 4, 2000, hemasturbated to the point of ejaculation while watching an adult video. He wore a condom and placedit in the trash can in his bedroom afterward. Defendant kept a jar of Vaseline in his room to providea shine after he shaved his head and also for sexual intercourse with female visitors. Birth controlpills that Q.B. had been given at the abortion clinic were kept in his dresser.

On the morning of December 4, one of Q.B.'s friends came to the house and was introducedto defendant. Q.B. denied that her friend had been in the house before, although Q.B.'s sisterinformed defendant that this was not true. Q.B. then admitted that the girl had previously been in thehouse and defendant struck her on the buttocks with the paddle more than 20 times. Defendant toldQ.B. that he was going to "whoop" her all week because she treated his rules as though they did notmatter. The next day, defendant's mother called him on his way home from work because the policewere looking for him. After driving to the house and finding no one there, he drove to the policestation, where he was arrested.

The jury found defendant guilty on all counts. Defense counsel filed a motion for a new trial,which was subsequently denied. The trial court imposed concurrent sentences of 30 years for the fourcounts of aggravated criminal sexual assault and 15 years for the four counts of criminal sexualassault. Defendant's motion to reconsider the sentences was denied. Defendant's timely notice ofappeal followed.

ANALYSIS

I. Motion to Suppress

Defendant's first argument on appeal is that the trial court erred by denying defendant's motionto suppress. Essentially, defendant challenges the scope of Q.B.'s authority. Defendant does notcontend that Q.B. lacked authority to consent to a search of the common areas of the residence;rather, he contends that Q.B.'s authority did not extend to his bedroom. Because defendant did notwant Q.B. "hanging out" in his room, he asserts that Q.B.'s access to the room was inferior to his. Additionally, Q.B. was aware that defendant did not want "strangers" in the room. As a result, heargues that she lacked common authority to allow the detectives to enter or search his bedroom. TheState counters that the family relationship between defendant and Q.B. created a presumption ofcommon authority to consent to a search of his bedroom and that defendant failed to establish hisexclusive possession of the room. We agree with the State.

The trial court did not find defendant's testimony at the suppression hearing to be credible,and defendant accepts the version of events conveyed by the State's witnesses. With respect to ourstandard of review, we uphold the factual findings and witness credibility determinations of the trialcourt unless they are against the manifest weight of the evidence, but review de novo the ultimateruling on a motion to suppress. People v. Sorenson, 196 Ill. 2d 425, 430-31 (2001). In general, the fourth amendment prohibits the warrantless search of a home. People v. Huffar,313 Ill. App. 3d 593, 596 (2000). However, a warrantless search conducted with the consent of athird party possessing common authority over the premises is not prohibited by the fourth amendment. People v. Brooks, 277 Ill. App. 3d 392, 399 (1996). The authority that justifies third-party consentis not based on the law of property but is based on mutual use of the property by persons generallyhaving joint access or control for most purposes. People v. Bull, 185 Ill. 2d 179, 197 (1998). Theburden of establishing common authority rests on the State. Bull, 185 Ill. 2d at 197.

Common authority is recognized in situations involving family, marital, or cohabitantrelationships. People v. Pickens, 275 Ill. App. 3d 108, 112 (1995). Where the defendant lives withhis parents or a close relative, and the relative consents to a search of the defendant's bedroom, courtswill presume that the relative has sufficient common authority over the bedroom to authorize thesearch. People v. Bliey, 232 Ill. App. 3d 606, 615 (1992). Cases involving a relative's third-partyconsent to search have focused on whether the defendant has established his exclusive possession ofthe searched premises. People v. Brown, 162 Ill. App. 3d 528, 539 (1987). Specifically, two factorsindicative of exclusive possession are whether the room was locked in the defendant's absence andwhether the defendant gave explicit instructions not to allow anyone into the room. Brown, 162 Ill.App. 3d at 539-40. Where the evidence fails to establish both of these factors, the attack on the third-party consent to search has failed. Brown, 162 Ill. App. 3d at 540.

In this case, we conclude that Q.B. possessed common authority to consent to the search ofdefendant's bedroom. At the hearing, Q.B. testified that she was allowed to go in and out of hisbedroom when the door was open, and that the door was open when she was alone in the house afterschool. According to Q.B., defendant never kept his door locked or closed when he was gone. Infact, the only time the bedroom door was shut was when he brought one of his "friends" home. Inaddition, defendant never told Q.B. that she could not go into his bedroom or that no one else wasallowed in the room. Finally, none of the detectives saw a sign on the door indicating "Do not enter"when they searched his room. Thus, defendant has failed to rebut the presumption of commonauthority that exists when family members live together.

Defendant's argument that Q.B. did not possess the requisite authority because she knew thathe did not want "strangers" in his bedroom is unpersuasive. Defendant failed to establish exclusivepossession of his room. First, there is no evidence that defendant explicitly instructed Q.B. not toallow "strangers" into his room. See Brown, 162 Ill. App. 3d at 540 (defendant's lack of permissioncannot be equated with explicit instruction not to enter and not to let anyone else enter). Second,defendant admitted that he could not keep the door locked in his absence, since the door wasimpossible to lock from the outside. Absent proof that the door was locked and that Q.B. had explicitinstructions not to allow anyone into the bedroom, defendant's attack on Q.B.'s consent to searchnecessarily fails.

Likewise, we reject defendant's argument that Q.B.'s degree of authority was substantiallyinferior to his. Defendant argues that the privacy rights of a parent are inherently superior to the rightsof a minor child. However, a minor child living at home is competent to give lawful consent to search,and age alone is never an automatic barrier to capacity to consent. See People v. Holmes, 180 Ill.App. 3d 870, 873 (1989) (defendant's 11-year-old daughter who was often left home alone to babysither younger brother validly consented to search of backyard). Moreover, Q.B.'s testimony clearlydemonstrated that she had unlimited access to defendant's bedroom in his absence, and defendant hasagreed not to challenge the evidence presented by the State at the suppression hearing. Accordingly,we hold that Q.B. possessed the requisite authority to consent to a search of defendant's bedroom.

II. Sufficiency of Indictment

Defendant next contends that two counts of the indictment omitted an essential element of theoffense charged. Specifically, defendant contends that counts II and VI, charging aggravated criminalsexual assault, failed to allege that Q.B. was under 18 years of age. The State argues that both countsreference the statute and that the missing element was supplied by counts IV and VIII. We agree withthe State.

Counts II and VI both alleged aggravated criminal sexual assault based on the commission ofa criminal sexual assault and the aggravating circumstance of bodily harm. The form of criminal sexualassault underlying each count is defined as "an act of sexual penetration with a victim who was under18 years of age when the act was committed and the accused was a family member." 720 ILCS 5/12--13(a)(3) (West 2002). Count II alleged aggravated criminal sexual assault in that defendant"committed a criminal sexual assault, in violation of 720 ILCS 5/12--13(a)(3), against [Q.B.] in that,while being a family member of [Q.B.], the defendant placed his penis in the vagina of [Q.B.] and inso doing caused bodily harm to [Q.B.] by causing her to become pregnant in violation of 720 ILCS5/12--14(a)(2)." Count VI alleged aggravated criminal sexual assault in that defendant "committeda criminal sexual assault, in violation of 720 ILCS 5/12--13(a)(3), against [Q.B.] in that, while beinga family member of [Q.B.], the defendant placed his penis in the anus of [Q.B.] and in so doing causedbodily harm to [Q.B.] by causing injury to her anus, in violation of 720 ILCS 5/12--14(a)(2)." CountsIV and VIII of the indictment alleged criminal sexual assault based on defendant, a family member ofQ.B., placing his penis in her vagina and anus when she was under the age of 18. 720 ILCS 5/12--13(a)(3) (West 2002). Specifically, count IV alleged that defendant, "a family member of [Q.B.],committed an act of sexual penetration with [Q.B.], who was under 18 years of age when the act wascommitted, in that the said defendant placed his penis in the vagina of [Q.B.], in violation of 720 ILCS5/12--13(a)(3)." Count VIII alleged that defendant, "a family member of [Q.B.], committed an actof sexual penetration with [Q.B.], who was under 18 years of age when the act was committed, in thatthe said defendant placed his penis in the anus of [Q.B.], in violation of 720 ILCS 5/12--13(a)(3)." At the close of the State's evidence, defense counsel moved to dismiss counts II and VIbecause they failed to allege that Q.B. was under the age of 18. The trial court denied the motionbecause both counts cited section 12--13(a)(3), which defines criminal sexual assault, and the ageelement is included in the statute. Defense counsel renewed this argument in a motion for a directedverdict after all the evidence had been presented. Again, the trial court denied the motion, noting thatdefendant was on notice of the charges against him and that the testimony supported the fact that Q.B.had not attained the age of 18.

Where, as here, the charging instrument is attacked during trial, the court determines whetherthe instrument strictly complies with the pleading requirements set out in section 111--3(a) of the Codeof Criminal Procedure of 1963. 725 ILCS 5/111--3(a) (West 2002); People v. Swanson, 308 Ill. App.3d 708, 711 (1999). Section 111--3 is designed to inform the defendant of the nature of the chargesagainst him so as to allow him to prepare a defense and to assure that the charged offense serves asa bar to subsequent prosecutions for the same conduct. People v. Selby, 298 Ill. App. 3d 605, 615(1998). Section 111--3(a)(3) requires that the charging instrument set forth the elements of theoffense charged. People v. Johnson, 69 Ill. App. 3d 248, 250 (1979). It is well established that, intesting the sufficiency of a multicount indictment, elements missing from one count may be suppliedby another. People v. Johnson, 231 Ill. App. 3d 412, 423 (1992). In other words, various counts ofa charging instrument may be read together, so that elements contained in one count are transferrableto complete and make valid a charge contained in another. People v. Martin, 266 Ill. App. 3d 369,374 (1994).

In this case, the trial court properly denied defendant's motion to dismiss counts II and VI. While both counts failed to allege the element of Q.B. being under the age of 18, counts IV and VIIIspecifically apprised defendant that he was being charged with criminal sexual assault based on Q.B.being under the age of 18. Reading the multicount indictment as a whole, the under-18 elementmissing in counts II and VI was supplied by counts IV and VIII. Further, both counts II and VIreferenced section 12--13(a)(3), which specifies an act of sexual penetration by a family member witha victim under 18 years of age. Consequently, the indictment was a valid charging instrument that metthe standards of section 111--3 of the Code of Criminal Procedure.

III. Denial of a Fair Trial

A. Prosecutorial Misconduct

Defendant next argues that he was denied a fair trial due to several errors that occurred duringthe course of the trial. Specifically, defendant points to three instances of prosecutorial misconductduring closing argument as well as to testimony from Q.B. that he had been in jail previously. According to defendant, this was a very close case and these errors, both individually andcumulatively, denied him a fair trial.

We begin by considering the alleged improper comments made by the prosecutor duringclosing argument. First, defendant argues that the prosecutor overstated the testimony by remarkingthat Q.B. had "abrasions," when nurse DeWees had testified to only one abrasion. Second, defendantcontends that the prosecutor went beyond the testimony when discussing defendant's threats to harmQ.B. Last, defendant argues that, during rebuttal argument, the prosecutor interjected what amountedto her own testimony when she commented on forensic scientist Yallaly's inability to say whether thelesser profile of DNA came from a male or a female.

Courts allow prosecutors great latitude during closing argument, and the State may commenton the evidence and all inferences reasonably drawn from the evidence. People v. Blue, 189 Ill. 2d 99,127 (2000). Reviewing a challenge to comments made by the State during closing argument, thecomments must be considered in the context of the entire closing arguments of the parties. People v.Soto, 342 Ill. App. 3d 1005, 1016 (2003). We will not disturb the verdict even if prosecutorialcomment exceeds the bounds of proper argument unless the remark caused substantial prejudice tothe defendant. Soto, 342 Ill. App. 3d at 1016-17. In determining whether substantial prejudiceoccurred, the court must consider the content and context of the language, its relationship to theevidence, and its effect on the defendant's right to a fair and impartial trial. People v. Williams, 333Ill. App. 3d 204, 214 (2002). In order to constitute reversible error, an error in closing argument mustresult in substantial prejudice such that the result would have been different absent the complained-ofremark. Soto, 342 Ill. App. 3d at 1017. In other words, the comments must have constituted amaterial factor in the conviction. People v. Robinson, 157 Ill. 2d 68, 84 (1993). Finally, the regulationof the substance and style of the closing argument is within the trial court's discretion, and we will notdisturb the trial court's determination concerning the propriety of the remarks absent a clear abuse ofdiscretion. Blue, 189 Ill. 2d at 128.

With respect to the prosecutor's statement of "abrasions" rather than "abrasion," we find noerror. When referring to the testimony of nurse DeWees, the prosecutor stated, "There is bodily harmalso in her anus. She has rectal scarring. She has abrasions." Defense counsel's objection wasoverruled. According to defendant, the prosecutor overstated the testimony, since nurse DeWees hadtestified to only one abrasion. While defendant is correct that nurse DeWees described only twoinjuries, one small abrasion at the bottom of the anus and scar tissue at the three o'clock position, weagree with the State that the prosecutor's use of the word "abrasions" referred to the recent abrasionas well as the rectal scarring. Viewing the State's argument in its entirety, we note that this was anisolated remark. On all other occasions, the prosecutor stated that nurse DeWees had found "a rectalabrasion." Further, even if the State was guilty of overstating the evidence, such a slightoverstatement did not amount to reversible error. See People v. Enoch, 189 Ill. App. 3d 535, 551(1989) (it is not reversible error when a prosecutor overstates evidence that is partially corroborated). Defendant's second contention is more meritorious. In discussing defendant's threats to harmQ.B. if she told anyone about what was happening, the prosecutor stated:

"[Q.B.] told you that at one point [defendant] had threatened to kill her, threatened todo harm to her if she would say anything. Why wouldn't she believe that? In the past, she hadbeen beaten with him by a paddle over 20 times." (Emphasis added.)

As defendant rightly notes, Q.B. testified that it was only on December 4, 2000, that defendant beather with the paddle over 20 times; i.e., she did not testify that such an incident occurred beforedefendant threatened her. Thus, the prosecutor misstated the evidence on this point. Clearly,however, the comment caused no substantial prejudice. Whether defendant's threat was credible was,at most, purely collateral to whether defendant sexually abused Q.B. As a result, this error is notreversible. See People v. King, 135 Ill. App. 3d 152, 156 (1985) (tangential argument does notrequire reversal).

Defendant's third alleged instance of prosecutorial misconduct concerns the prosecutor'sexplanation regarding why forensic scientist Yallaly was unable to identify the gender of the lesserDNA profile found on the condom sample. Defendant points to the following remarks made by theprosecutor:

"MS. HORNER [Prosecutor]: Using your common sense, and your knowledge thatyou have outside in the world, why would that be? Well, males have an X and Y.

MR. SCHELLER [Defense counsel]: Objection, Judge, that's not been testified to.

MS. HORNER: Females have X. X is there no matter what.

MR. SCHELLER: Judge, I'm going to object. It's not been testified to.

THE COURT: Overruled. The jury has heard the testimony."

According to defendant, the prosecutor's argument went beyond the evidence since Yallaly had nottestified about X and Y chromosomes or given an explanation for why he had been unable todetermine the gender of the source of the lesser DNA profile.

At trial, Yallaly testified that the condom surface contained DNA from two different people. He explained that, when analyzing DNA, there are 13 different points or locations throughout thechromosomes, and the sex chromosome is XX for females and XY for males. Yallaly determined thatthe profile from the condom matched the profile from defendant's saliva because all 13 points wereconsistent. However, Yallaly was unable to determine the gender of the second source of DNAbecause the sample tested did not contain a complete DNA profile of that person. As a result, he wasable to identify only five locations from the sample that were consistent with Q.B. Although Q.B.could not be excluded as the source, the sample did not possess enough DNA for Yallaly to opinewhether the second person was female or male.

During closing argument, defense counsel argued that Yallaly never gave an opinion that theDNA on the condom matched Q.B. Defense counsel further argued that the only two DNAs that wereon the condom were both male and that no physical evidence corroborated Q.B.'s story. On rebuttal,the prosecutor explained why Yallaly was unable to determine whether the second source of DNA wasmale or female. She stated that males have "an X and Y" while "[f]emales have X. X is there nomatter what."

We agree with the State that the prosecutor's comments during rebuttal were invited by defensecounsel's argument. See People v. Williams, 313 Ill. App. 3d 849, 863 (2000) (where the complained-of remarks are within a prosecutor's rebuttal argument, they will not be held improper if they appearto have been provoked or invited by defense counsel's argument); People v. Thomas, 172 Ill. App. 3d172, 179 (1988) (remarks generally considered improper are acceptable if invited by argument ofdefense counsel). While the sample did not have enough DNA for Yallaly to declare a match withQ.B., he could not exclude her as the possible source, and 5 out of 13 locations in the sample wereconsistent with Q.B.'s DNA. The prosecutor's statements regarding the sex chromosomes were invitedby defense counsel's argument that both sources of DNA were male. In addition, we note that theprosecutor asked the jurors to use their common sense and knowledge "outside in the world" whendrawing this inference from Yallaly's testimony. As such, the prosecutor did not misstate or overstateYallaly's testimony, but argued a reasonable inference therefrom. Further, the jury was instructed todisregard statements made in closing argument not based on the evidence. Finally, even if we wereto find the comments improper, they did not result in substantial prejudice such that the result wouldhave been different had the comments not been made.

B. Improper Testimony

Defendant also argues that he was deprived of a fair trial due to Q.B.'s response to a questionposed by the prosecutor on direct examination. Q.B. testified that she had not reported the sexualabuse to anyone, despite questioning by her grandmother and aunt. The prosecutor asked her why shedid not tell anyone. Q.B. replied that "[she] didn't want [defendant] to go back to jail." Defensecounsel objected to the testimony and, outside the presence of the jury, moved for a mistrial. Theprosecutor responded that the matter had not been dwelled upon and that an instruction from the courtwould cure any error. The trial court determined that the prosecutor had not purposely elicited thetestimony and denied the motion for a mistrial. The court then instructed the jury to disregard theanswer.

Relying on People v. Goodwin, 69 Ill. App. 3d 347 (1979), defendant argues that the improperreference to defendant having been in jail denied him a fair trial. According to defendant, thedisclosure of the fact that he had previously been in jail was extremely prejudicial. Although his priorconvictions did not involve any sex offenses, Q.B.'s statement allowed the jury to speculate that he hadcommitted a similar offense in the past. In addition, evidence of his prior convictions was prohibitedfrom being disclosed since the trial court had previously granted a motion in limine to that effect. TheState counters that only a single question was involved, that it was not intended to elicit other-crimesevidence, that the jury was instructed to disregard the testimony, and that, during cross-examination, defendant referred to being "locked up."

In order to determine whether defendant's right to a fair trial has been compromised, we askwhether a substantial right has been affected to such a degree that we cannot confidently state that histrial was fundamentally fair. Blue, 189 Ill. 2d at 138. Not every improper reference entitles adefendant to a new trial since such evidence can be harmless. People v. Wilson, 32 Ill. App. 3d 842,847 (1975). Where it appears impossible to reasonably anticipate any different result on retrial, suchimproper testimony is harmless. Wilson, 32 Ill. App. 3d at 847.

We are not persuaded that Q.B.'s response regarding defendant's previous jail time deprived him of a fair trial. As defendant concedes, Goodwin is distinguishable from the case at bar in severalrespects. In Goodwin, a police officer testified that, at the moment of arrest, the defendant had askedto be let go because " 'he did not want to go back to prison again.' " Goodwin, 69 Ill. App. 3d at 349. Despite this comment, the trial court refused to strike the police officer's testimony or instruct the juryto disregard it. Further, the officer's response was "volunteered and not responsive to the question"and possibly intended to bring out the fact that the defendant had been incarcerated. Goodwin, 69 Ill.App. 3d at 349.

Unlike in Goodwin, the trial court in this case sustained defense counsel's objection andinstructed the jury to disregard the testimony. Moreover, the trial court noted that the prosecutor didnot intend to elicit such testimony and that Q.B.'s answer was responsive to the question. The matterwas not dwelled upon or further mentioned during closing argument. Finally, we fail to see howQ.B.'s reference to jail was reversible error when, during cross-examination, defendant testified thatthe "paddle came into effect a year before I was locked up." Thus, defendant was not denied a fairtrial due to Q.B.'s reference to his previous jail time.

Next, defendant argues that the number of convictions should be reduced from eight to two(one for each type of penetration). Multiple convictions cannot be carved from the same physical act. People v. King, 66 Ill. 2d 551, 566 (1977). Thus, defendant argues that he cannot be convicted offour counts of aggravated criminal sexual assault and four counts of criminal sexual assault whereonly two types of sexual penetration were contained in the indictment. Defendant maintains that sixof his convictions should be vacated because the eight counts contained in the indictment did notdistinguish the acts in a way that notified him that the State was seeking separate convictions ratherthan merely relating alternative theories of liability for each type of penetration. We agree withdefendant. Like in People v. Crespo, 203 Ill. 2d 335 (2003), defendant was not apprised, prior totrial, that the State intended to prosecute him for separate acts.

In all, defendant was charged with two counts each of criminal sexual assault and aggravatedcriminal sexual assault based on separate instances of vaginal penetrations from September 5, 1998,to December 5, 2000, and two counts each of criminal sexual assault and aggravated criminal sexualassault based on anal penetrations either from September 5, 2000, to December 1, 2000, or fromSeptember 5, 1998, to December 5, 2000.

The United States and Illinois Constitutions both require that a defendant in a criminalprosecution be informed of the nature and cause of the accusations. U.S. Const., amend. VI; Ill. Const. 1970, art. I,