{ "id": 2577729, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TIMOTHY SCHMITT, Defendant-Appellant", "name_abbreviation": "People v. Schmitt", "decision_date": "1990-10-25", "docket_number": "No. 4\u201489\u20140264", "first_page": "820", "last_page": "831", "citations": [ { "type": "official", "cite": "204 Ill. App. 3d 820" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "477 U.S. 168", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6205694 ], "weight": 3, "pin_cites": [ { "page": "181-82" }, { "page": "157-58" }, { "page": "2471-72" } ], "opinion_index": 0, "case_paths": [ "/us/477/0168-01" ] }, { "cite": "473 N.E.2d 1246", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "1251" }, { "page": "1251" }, { "page": "1252" } ], "opinion_index": 0 }, { "cite": "104 Ill. 2d 504", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3147214 ], "weight": 3, "pin_cites": [ { "page": "518" }, { "page": "518" }, { "page": "520" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/104/0504-01" ] }, { "cite": "528 N.E.2d 648", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "659" }, { "page": "659" } ], "opinion_index": 0 }, { "cite": "123 Ill. 2d 387", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550620 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "410" }, { "page": "410" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/123/0387-01" ] }, { "cite": "317 N.E.2d 35", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "39" } ], "opinion_index": 0 }, { "cite": "58 Ill. 2d 45", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2953346 ], "weight": 2, "pin_cites": [ { "page": "52" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/58/0045-01" ] }, { "cite": "540 N.E.2d 767", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "pin_cites": [ { "page": "769" } ], "opinion_index": 0 }, { "cite": "184 Ill. 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Ed. 2d", "opinion_index": 0 }, { "cite": "488 U.S. 917", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1493216, 1494881, 1494338, 1494992, 1495413, 1495158 ], "opinion_index": 0, "case_paths": [ "/us/488/0917-01", "/us/488/0917-03", "/us/488/0917-06", "/us/488/0917-05", "/us/488/0917-04", "/us/488/0917-02" ] }, { "cite": "522 N.E.2d 1124", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "pin_cites": [ { "page": "1130" } ], "opinion_index": 0 }, { "cite": "122 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550081 ], "year": 1988, "pin_cites": [ { "page": "186" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0176-01" ] }, { "cite": "253 N.E.2d 922", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "927" } ], "opinion_index": 0 }, { "cite": "116 Ill. App. 2d 471", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1587105 ], "pin_cites": [ { "page": "481" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/116/0471-01" ] }, { "cite": "376 N.E.2d 328", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1969, "pin_cites": [ { "page": "336" } ], "opinion_index": 0 }, { "cite": "60 Ill. App. 3d 236", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3352770 ], "year": 1969, "pin_cites": [ { "page": "247" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/60/0236-01" ] }, { "cite": "374 N.E.2d 229", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "pin_cites": [ { "page": "232" } ], "opinion_index": 0 }, { "cite": "58 Ill. App. 3d 294", "category": "reporters:state", "reporter": "Ill. 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TIMOTHY SCHMITT, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE McCULLOUGH\ndelivered the opinion of the court:\nAn Adams County jury convicted the defendant of aggravated criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12 \u2014 14) and criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12 \u2014 13). At trial, the victim, defendant\u2019s nine-year-old son, C.S., testified via closed circuit television, as permitted by section 106A \u2014 3 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 106A \u2014 3). On appeal, the defendant challenges the constitutionality of this procedure, raises a denial of due process claim, various evidentiary issues, and urges an amendment to the sentencing order to clarify discrepancies in the entries.\nC.S.\u2019s parents were divorced when he was five years old. His mother has legal custody but C.S. visited his father, the defendant, every weekend at the house where defendant and the defendant\u2019s mother lived. C.S. testified that, on occasion, the defendant asked him to lie down on a couch. The defendant would then remove C.S.\u2019s pants and underwear and lick his penis. C.S. told his grandmother, Dorothy Post, defendant also licked his rectum.\nC.S. stopped visiting the defendant in July 1988 after Post observed C.S. licking the buttocks of one of his cousins. When she confronted him with the behavior, C.S. denied licking his cousin. Post then asked, \u201cWho did that, [C.S.]? Did you get that from Mindy or Tim?\u201d C.S. testified he told her he got it from Tim, his father. Post testified C.S. told her he learned the behavior from his dad.\nThe defendant was charged by information with aggravated criminal sexual assault and criminal 'sexual assault. He subsequently filed several motions in limine, including a motion to prohibit the State from calling an expert witness to testify about rape-trauma syndrome. At the hearing on this motion, the prosecutor represented to the court, Judge Cashman, that C.S. had been traumatized by the abuse and had become hostile and angry, and suffered nightmares and bed-wetting.\nSubsequently, the State filed a motion to videotape C.S.\u2019s testimony pursuant to section 106A \u2014 2 of the Code. (Ill. Rev. Stat. 1987, ch. 38, par. 106A \u2014 2.) The State argued the procedure was necessary to protect C.S. from further trauma:\n\u201cI think at his age he doesn\u2019t have the ability to put in perspective the seriousness of the sexual acts or the fact that his first sexual experience may have well been a homosexual experience with his father. To ask this child to get in front of 12 people, 14 people with alternates, and describe this type of sexual relations with his father I think is going beyond what we could ever appropriately accomplish in a court of justice.\n* * *\nThe psychological reports that I have seen could show a rather fragile child that will suffer consequences and will suffer consequence no matter what we do. If we don\u2019t do anything, he suffers. If we do, he suffers. I hope we can just minimize it by videotaping.\u201d\nJudge Cashman denied the motion, after determining the statute was unconstitutional. (On June 19, 1989, the Illinois Supreme Court found the videotape statute unconstitutional. People v. Bastien (1989), 129 Ill. 2d 64, 541 N.E.2d 670.)\nThe State then filed a motion to allow C.S.\u2019s testimony via closed-circuit television. The State argued the procedure was in C.S.\u2019s best interest:\n\u201c[I]n this situation we are dealing with a nine-year-old child. He is the son of the Defendant, and to ask a child at that age to describe for a huge courtroom that is a gigantic courtroom to a youngster, in front of 14 strangers that his first sexual experience is a homosexual experience with his father is per se overwhelmingly psychologically damaging. You can\u2019t assume that any child would be able to comfortably and clearly describe his experiences.\u201d\nThe defendant objected to the motion, claiming the procedure would violate his rights under the confrontation clause. He also argued the State failed to show the procedure was necessary. Judge Welch presided at this motion hearing and overruled the defendant\u2019s objections. Judge Welch specifically found the closed-circuit television procedure was in C.S.\u2019s best interest.\nAt trial, C.S. was the first witness and testified by closed-circuit television. The prosecutor, defense counsel, defendant, Judge Welch, C.S., and C.S.\u2019s mother were in the judge\u2019s chambers during C.S.\u2019s testimony, which was broadcast into the courtroom for the jury. There were two television monitors in the courtroom. A clear, color picture and clear sound were transmitted instantaneously from the judge\u2019s chambers to the courtroom. The defendant was not screened from C.S.\u2019s sight. The camera focused on C.S.\u2019s upper body and face.\nBefore leaving the courtroom to go to chambers, Judge Welch explained to the jury that C.S. would testify by closed-circuit television from chambers. He told the jury who would be in the room with C.S. during his testimony and who would remain in the courtroom. He also explained how the equipment functioned and instructed the jury to adjust the television monitors in the courtroom if necessary. The bailiff remained in the courtroom and was to notify the court immediately if there were equipment problems in the courtroom.\nThe defendant also testified at trial and denied ever licking C.S.\u2019s penis. He hypothesized that C.S. made the statements to avoid punishment for licking his cousin. The jury convicted the defendant on both counts and the circuit court sentenced him to nine years\u2019 imprisonment.\nThe first issue is whether the circuit court violated the defendant\u2019s right of confrontation under the sixth amendment of the United States Constitution and under article I, section 8, of the Illinois Constitution when it permitted C.S. to testify via closed-circuit television. The defendant argues his constitutional right of confrontation was violated because the jury was not present in the room with C.S. while he testified and because the State failed to show the procedure was necessary.\nThe right of confrontation is unique to the defendant and functions to guarantee the defendant a face-to-face meeting with witnesses appearing before the trier of fact. (Coy v. Iowa (1988), 487 U.S. 1012, 1016, 101 L. Ed. 2d 857, 864, 108 S. Ct. 2798, 2800.) This right of confrontation:\n\u201c(1) insures that the witness will give his statements under oath \u2014 thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination ***; (3) permits the jury that is to decide the defendant\u2019s fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility.\u201d California v. Green (1970), 399 U.S. 149, 158, 26 L. Ed. 2d 489, 497, 90 S. Ct. 1930, 1935.\nThis case does not present a confrontation problem. The statute specifically includes the defendant and his attorney in the room where the child is testifying (Ill. Rev. Stat. 1987, ch. 38, par. 106A\u2014 3). The trial court here followed the provisions of the statute, and the defendant and his attorney were in the judge\u2019s chambers while C.S. testified. The defendant was thus afforded face-to-face confrontation with C.S. and an opportunity to cross-examine the child. The defendant\u2019s attorney cross-examined C.S., who testified under oath and indicated he understood the importance of telling the truth.\n\u201c[T]he Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose these infirmities [such as forgetfulness, confusion, or evasion] through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness\u2019 testimony.\u201d (Delaware v. Fensterer (1985), 474 U.S. 15, 22, 88 L. Ed. 2d 15, 22, 106 S. Ct. 292, 295.)\nThe defendant in this case was given full opportunity to probe and expose infirmities in C.S.\u2019s testimony. C.S. was not forgetful, confused, or evasive. Instead, his testimony was clear, convincing, unrehearsed, and reliable.\nThe final function of the confrontation right is allowing the jury to observe the witness\u2019 demeanor. The jury here had adequate opportunity to assess the child\u2019s demeanor while he testified, though the jury was not in the room with C.S. The television camera provided a clear view of C.S.\u2019s upper body, face, and facial expressions and the picture was transmitted in color. The camera angle may have afforded the jury a closer view of C.S. than would have been possible from the witness stand in the courtroom.\nWe reject the defendant\u2019s arguments that the jury could not sufficiently assess C.S.\u2019s demeanor because his entire body was not shown. Likewise, we reject the defendant\u2019s argument that there was error because the camera failed to show the entire room and those present. As stated heretofore, defendant was present during C.S.\u2019s testimony, to cross-examine, to expose infirmities, and to call to the attention of the jury, as fact finder, reasons to give \u201cscant weight\u201d to the same. We find no error or unfairness, particularly in view of Judge Welch\u2019s comments to the jury in which he listed those persons who would be in chambers during C.S.\u2019s testimony.\nThe defendant also contends the State failed to show the closed-circuit-television procedure was necessary in this case. The statutory standard is not necessity but \u201cthe best interest of the child.\u201d (Ill. Rev. Stat. 1987, ch. 38, par. 106A\u2014 3.) Judge Welch specifically found the closed-circuit television procedure was in C.S.\u2019s best interest. The record supports this finding and thus there was no abuse of discretion.\nFurther, the statute does not require a hearing to determine whether the best interest of the child would be served by allowing him to testify via closed-circuit television. The defendant would have this court require such a hearing. The legislature did not impose such a requirement and therefore we decline to do so. Had the legislature intended to require a hearing, it would have so provided. For exam-pie, the legislature provides a hearing when section 115 \u2014 10 of the Code is invoked (Ill. Rev. Stat. 1987, ch. 38, par. 115 \u2014 10). That statute provides a hearsay exception in prosecutions for sexual abuse of a child under age 13 if \u201c[t]he court finds in a hearing,\u201d while 106A \u2014 3 states the court may \u201cupon finding that it is in the best interest of the child.\u201d (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 38, pars. 115\u2014 10(b)(1), 106A \u2014 3.) In this case the representations of the prosecutor to the court, that closed-circuit television was in C.S.\u2019s best interest, provided a sufficient basis for the finding by the court.\nThe defendant urges application of the recent United States Supreme Court decision in Maryland v. Craig (1990), 497 U.S. _, 111 L. Ed. 2d 666, 110 S. Ct. 3157. The Craig decision is distinguishable on several grounds and thus inapplicable to this case.\nThe defendant in Craig owned and operated a prekindergarten and kindergarten center. She was accused, and convicted of sexually abusing six-year-old B.E. The State moved to allow B.E. to testify via closed-circuit television and introduced expert testimony that B.E. would suffer \u201c \u2018serious emotional distress such that [[she] could not] reasonably communicate,\u2019 [citation], if required to testify in the courtroom.\u201d Craig, 497 U.S. at _, 111 L. Ed. 2d at 676, 110 S. Ct. at 3161.\nThe defendant challenged the constitutionality of the statute, alleging it denied her the right of confrontation. Unlike the Illinois statute, the Maryland statute excluded the defendant from the room where the child testified and required the defendant to observe theproceedings by closed-circuit television. Thus the Craig case involved confrontation clause issues.\nThe Court concluded Maryland\u2019s closed-circuit television procedure preserved the requisites of the confrontation clause.\n\u201c[T]he child witness must be competent to testify and must testify under oath; the defendant retains full opportunity for contemporaneous cross-examination; and the judge, jury, and defendant are able to view (albeit by video monitor) the demeanor (and body) of the witness as he or she testifies.\u201d Craig, 497 U.S. at _, 111 L. Ed. 2d at 682, 110 S. Ct. at 3166.\nVarious decisions, including Craig, require a showing that the child needs special protection before the procedure may be employed. (Coy, 487 U.S. at 1020-21, 101 L. Ed. 2d at 866-67, 108 S. Ct. at 2802-03.) \u201cAfter Coy, it is clear that such a procedure, which shields the child witness from facing the defendant during the testimony, is constitutionally acceptable, if at all, only if there is an individualized finding that the -witness is in need of such protection.\u201d (Bastien, 129 Ill. 2d at 73, 541 N.E.2d at 674.) The Maryland statute required a determination by the judge \u201cthat testimony by the child victim in the courtroom will result in the child suffering serious emotional distress such that the child cannot reasonably communicate.\u201d Md. Cts. & Jud. Proc. Code Ann. \u00a79 \u2014 102(a)(l)(ii), at 412 (1989).\nAs discussed earlier, the Illinois statute requires only a finding that the closed-circuit television procedure would be in the child\u2019s \u201cbest interest.\u201d (Ill. Rev. Stat. 1987, ch. 38, par. 106A \u2014 3.) The trial court here made an individualized finding that C.S.\u2019s best interest would be served by allowing him to testify by closed-circuit television.\nThus, Craig is also distinguishable as to the statutory showing required to invoke the closed-circuit television procedure.\nThe circuit court in this case complied with the statutory requirements for using closed-circuit television. The court first determined such a procedure would be in C.S.\u2019s best interest. Only those persons enumerated in the statute were permitted in the judge\u2019s chambers while C.S. testified and his testimony was transmitted to the jury in the courtroom. C.S. testified under oath in the physical presence of the defendant and the defendant\u2019s attorney cross-examined the child. The defendant was not denied his rights under the confrontation clause when C.S. testified via closed-circuit television.\nThe defendant contends the closed-circuit television procedure denied him due process. We disagree. The statute which allowed C.S. to testify by closed-circuit television was constitutional and followed meticulously by Judge Welch. There was no denial of due process.\nThe defendant next objects to the admission of Post\u2019s testimony that C.S. told her the defendant licked C.S.\u2019s rectum, because he was charged only with having licked the child\u2019s penis. The defendant claims this testimony violated section 115 \u2014 10 of the Code.\nPrior to admitting corroborative-complaint testimony, the circuit court held a hearing pursuant to section 115 \u2014 10(b)(1). At this hearing, Post testified C.S. told her he was being touched by his dad in that he was licked on his penis and his butt. Defense counsel argued section 115 \u2014 10 only permits witnesses to corroborate that a complaint was made, but no details of the complaint. After hearing Post\u2019s testimony, the trial judge concluded identification of the perpetrator was unnecessary, and ruled Post could testify \u201cthat he [C.S.] told her [Post] he was licked on the penis and on the butt.\u201d The judge reiterated this latter aspect of the ruling before hearing the State\u2019s offer on the police officer\u2019s corroborative-complaint testimony. Defense counsel made no objection to Post testifying that C.S. complained of being licked on the butt.\nIn proceedings before the jury, the prosecutor asked Post whether C.S. identified where on his body he had been licked, and Post answered, \u201con his penis and on his rectum.\u201d Several questions later, defense counsel renewed an objection lodged earlier and moved for a mistrial because Post \u201cviolated the Court\u2019s previous order restraining the testimony that can be given,\u201d basically objecting because Post testified C.S. identified defendant as the person who committed the acts in question. The court overruled the objection, stating identification was not the issue.\nIn cross-examination, defense counsel questioned Post as follows on her report to the police:\n\u201cQ. [By defense counsel:] And in that report you never said anything about the licking of the rectum, did you?\nA. [By Post:] I don\u2019t recall.\nQ. If he had done that I am sure it would be in that report, would it not?\nA. I thought I did, but I may not have. I don\u2019t know.\u201d\nDefendant\u2019s motion for a new trial did not include this specific issue.\nRaising the issue for the first time on appeal, defendant argues Post\u2019s testimony that he licked C.S.\u2019s rectum was evidence of a crime with which he was not charged. He maintains the testimony should not have been admitted as it was highly prejudicial and biased the jury against him. Generally, evidence of collateral crimes is inadmissible if relevant only to show a defendant\u2019s propensity to commit a crime. People v. Lindgren (1980), 79 Ill. 2d 129, 137, 402 N.E.2d 238, 242.\nThe State argues defendant has waived this issue. We agree\u2014 first, by failure to raise this objection below and by specific objection on other grounds (People v. Killebrew (1973), 55 Ill. 2d 337, 341-42, 303 N.E.2d 377, 380); second, by cross-examining on this point (People v. Lewis (1979), 75 Ill. App. 3d 259, 287, 393 N.E.2d 1098, 1119 (and cases cited therein); People v. Bost (1980), 80 Ill. App. 3d 933, 951-52, 400 N.E.2d 734, 748; People v. Darby (1978), 58 Ill. App. 3d 294, 298, 374 N.E.2d 229, 232; People v. Haywood (1978), 60 Ill. App. 3d 236, 247, 376 N.E.2d 328, 336; People v. Calvin (1969), 116 Ill. App. 2d 471, 481, 253 N.E.2d 922, 927); and, third, by failure to include it in his motion for a new trial (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274). Defendant urges application of the plain error exception to the waiver rule. However, this exception \u201cwill be applied only when substantial rights of the defendant are affected or the evidence in the case is closely balanced.\u201d (People v. Bailey (1988), 177 Ill. App. 3d 679, 682, 532 N.E.2d 587, 590; 107 Ill. 2d R. 615(a).) This is not such a case.\nOn the merits, there was no error in admission of this testimony. Section 115 \u2014 10, as amended, permits admission of such details of the child\u2019s complaint, including identification, even if not on an element of the crime charged, and absent testimony by the child as to that particular detail. (People v. Rushing (1989), 192 Ill. App. 3d 444, 451, 548 N.E.2d 788, 792; People v. Morton (1989), 188 Ill. App. 3d 95, 102, 543 N.E.2d 1366, 1371.) Here, the court held a proper section 115 \u2014 10 hearing outside the presence of the jury in order to determine that the time, content, and circumstances of the statement provided sufficient safeguards of reliability to permit admission of the evidence as an exception to the hearsay rule; the court made the requisite statutory determination; and the court gave the cautionary instruction required by the statute (Ill. Rev. Stat. 1987, ch. 38, par. 115 \u2014 10(c)).\nThe defendant next argues the prosecutor repeatedly impeached him with unsupported allegations and insinuations and misstated a witness\u2019 testimony to provide a basis for disbelieving the defendant\u2019s denial of guilt.\nC.S.\u2019s mother testified at trial that several weeks after she received notice of the trial date she telephoned the defendant and told him she \u201cthought C.S. had been through enough.\u201d She testified the defendant responded, \u201cYeah, I know.\u201d\nOn cross-examination, the defendant, upon being asked whether he remembered C.S.\u2019s mother saying \u201cyou have put [C.S.] through enough\u201d answered \u201cI remember her saying that, yes\u201d but denied any further response to the mother\u2019s statement. Although no objection was made by defendant, the prosecutor repeated essentially the same question two additional times and defendant persisted in his denial of any response. The prosecutor also, on cross-examination, asked defendant three questions whether defendant told C.S.\u2019s mother he needed help. Defendant each time denied he made such a statement. Priscilla, in the State\u2019s case in chief, did not testify defendant told her he \u201cneeded help.\u201d There is little excuse for the prosecutor\u2019s failure to present the statement of defendant in its case in chief. Additionally, the prosecutor did not ask leave of court to call Priscilla in rebuttal concerning the statement.\nDuring closing argument, the prosecutor made the following comments:\n\u201cCan you reasonably believe what [the defendant] said? Can you reasonably believe his denials? He told \u2014 he testified that he didn\u2019t tell his ex-wife, Priscilla, anything. Priscilla asked the question, T think you have put [C.S.]-through enough,\u2019 and her response that she recalled was he said, \u2018Yes, I know.\u2019\nMr. Schmitt testified he was silent. Silent. A person says, T think you have put [C.S.] through enough.\u2019 Wouldn\u2019t it be reasonable to expect an innocent man to say, \u2018I have put him through enough? You have put him through all of this. You are the one who did this to him. You\u2019re the one who put it up to him.\u2019 No, if you accept Mr. Schmitt\u2019s version, he is silent, he doesn\u2019t make a reasonable denial. You accept his mother Priscilla\u2019s version, \u2018Yes, I know, I have put [C.S.] through enough. I abused him and that is enough.\u2019 That is the reasonable interpretation.\u201d\nThe defendant failed to object to both the cross-examination and the comments by the prosecutor during closing argument. Thus, the defendant has waived this issue.\nThe defendant is correct that when the prosecutor cross-examines a defense witness, she cannot presume facts not in evidence. \u201cThe danger inherent in such situations being that the jury will ignore any denial, presume the accuracy of the questions\u2019 insinuation or innuendo, and substitute that presumption for proof.\u201d (People v. Braggs (1988), 184 Ill. App. 3d 756, 760, 540 N.E.2d 767, 769.) In People v. Butler (1974), 58 Ill. 2d 45, 317 N.E.2d 35, the prosecutor deliberately engaged in improper questioning. He asked the defendant about his living arrangements with various women to whom he was not married. The purpose of the questioning was to establish the defendant\u2019s bad moral character. \u201cSuch tactics have no place in the search for truth which is the objective of cross-examination and of the trial itself.\u201d (Butler, 58 Ill. 2d at 52, 317 N.E.2d at 39.) The State\u2019s cross-examination of defendant concerning statements made to a witness previously called in the State\u2019s case in chief, which are not in evidence, is error and is not condoned.\nIn deciding whether to invoke the plain error exception, the inquiry is whether the prosecutor\u2019s remarks \u201c \u2018were so inflammatory that defendant could not have received a fair trial or so flagrant as to threaten deterioration of the judicial process. [Citation.]\u2019 \u201d (People v. Jones (1988), 123 Ill. 2d 387, 410, 528 N.E.2d 648, 659, quoting People v. Albanese (1984), 104 Ill. 2d 504, 518, 473 N.E.2d 1246, 1251.) The cross-examination of the defendant in this case was not so inflammatory as to \u201c \u2018threaten deterioration of the judicial process. [Citation.]\u2019 \u201d Jones, 123 Ill. 2d at 410, 528 N.E.2d at 659, quoting Al banese, 104 Ill. 2d at 518, 473 N.E.2d at 1251.\nAs to the closing argument comments, the United States Supreme Court has held that a prosecutor\u2019s comments during closing, though they may be \u201cundesirable,\u201d do not deprive a defendant of a fair trial if they do not \u201cmanipulate or misstate the evidence\u201d or implicate other specific rights such as the right to remain silent or the right to counsel. (Darden v. Wainwright (1986), 477 U.S. 168, 181-82, 91 L. Ed. 2d 144, 157-58, 106 S. Ct. 2464, 2471-72.) Additionally, the Illinois Supreme Court held that a prosecutor\u2019s statement, based on a legitimate inference from the proof, does not constitute improper argument. (Albanese, 104 Ill. 2d at 520, 473 N.E.2d at 1252.) Here, the prosecutor\u2019s closing argument was based upon the evidence and reasonable inferences to be drawn therefrom and was not improper.\nThe defendant also argues his conviction should be overturned because the cumulative effect of the errors alleged to have occurred during trial deprived him of a fair trial. We disagree. There were no errors depriving him of a fair trial, individually or cumulatively. Even if there were errors, they were harmless and do not warrant vacating the conviction.\nFinally, the defendant contends, and the State agrees, this case should be remanded for correction of the sentencing order. The defendant was charged with both aggravated criminal sexual assault and criminal sexual assault. Both charges involved a single act, the defendant placing his mouth on C.S.\u2019s penis. The jury returned guilty verdicts on both counts. The court sentenced the defendant to nine years\u2019 imprisonment for aggravated criminal sexual assault but did not impose a sentence for the criminal sexual assault conviction. One sentencing order and the notice of appeal state defendant was convicted of two counts of aggravated criminal sexual assault. A later sentencing order shows defendant was convicted of both aggravated criminal sexual assault and criminal sexual assault. We agree with the parties that the cause should be remanded to clarify the record to reflect a judgment entered on the verdict of guilty to one count of aggravated criminal sexual assault.\nAffirmed as modified, and cause remanded.\nSPITZ and STEIGMANN, JJ, concur.", "type": "majority", "author": "JUSTICE McCULLOUGH" } ], "attorneys": [ "Daniel D. Yuhas and David Bergschneider, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.", "Scott H. Walden, State\u2019s Attorney, of Quincy (Kenneth R. Boyle, Robert J. Biderman, and Denise M. Ambrose, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TIMOTHY SCHMITT, Defendant-Appellant.\nFourth District\nNo. 4 \u2014 89\u20140264\nOpinion filed October 25, 1990.\nRehearing denied November 27, 1990.\nDaniel D. Yuhas and David Bergschneider, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nScott H. Walden, State\u2019s Attorney, of Quincy (Kenneth R. Boyle, Robert J. Biderman, and Denise M. Ambrose, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0820-01", "first_page_order": 842, "last_page_order": 853 }