{ "id": 2554381, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GERALD DALL, Defendant-Appellant", "name_abbreviation": "People v. Dall", "decision_date": "1991-01-17", "docket_number": "No. 4-90-0120", "first_page": "508", "last_page": "530", "citations": [ { "type": "official", "cite": "207 Ill. App. 3d 508" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "368 N.E.2d 882", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "68 Ill. 2d 149", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5809665 ], "opinion_index": 0, "case_paths": [ "/ill-2d/68/0149-01" ] }, { "cite": "483 N.E.2d 203", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "108 Ill. 2d 54", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3130811 ], "opinion_index": 0, "case_paths": [ "/ill-2d/108/0054-01" ] }, { "cite": "372 N.E.2d 50", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "69 Ill. 2d 394", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5456424 ], "opinion_index": 0, "case_paths": [ "/ill-2d/69/0394-01" ] }, { "cite": "509 N.E.2d 156", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "156 Ill. 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App. 3d", "case_ids": [ 5082488 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/ill-app-3d/172/0016-01" ] }, { "cite": "526 N.E.2d 335", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "348" }, { "page": "348" } ], "opinion_index": 0 }, { "cite": "123 Ill. 2d 113", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550782 ], "weight": 3, "pin_cites": [ { "page": "144" }, { "page": "145" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/123/0113-01" ] }, { "cite": "415 U.S. 308", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6174956 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/415/0308-01" ] }, { "cite": "461 N.E.2d 991", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "101 Ill. 2d 309", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3161103 ], "opinion_index": 0, "case_paths": [ "/ill-2d/101/0309-01" ] }, { "cite": "478 N.E.2d 267", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "106 Ill. 2d 237", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3138930 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-2d/106/0237-01" ] }, { "cite": "443 U.S. 307", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6182418 ], "weight": 3, "year": 1985, "pin_cites": [ { "page": "319" }, { "page": "573" }, { "page": "2789" } ], "opinion_index": 0, "case_paths": [ "/us/443/0307-01" ] }, { "cite": "550 N.E.2d 723", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "193 Ill. App. 3d 990", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2499197 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/193/0990-01" ] }, { "cite": "135 Ill. 2d 562", "category": "reporters:state", "reporter": "Ill. 2d", "year": 1990, "opinion_index": 0 }, { "cite": "558 N.E.2d 732", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "200 Ill. App. 3d 380", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2462527 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/ill-app-3d/200/0380-01" ] }, { "cite": "136 Ill. 2d 552", "category": "reporters:state", "reporter": "Ill. 2d", "year": 1990, "opinion_index": 0 }, { "cite": "558 N.E.2d 1208", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "201 Ill. App. 3d 166", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2594646 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/ill-app-3d/201/0166-01" ] }, { "cite": "545 N.E.2d 1332", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "190 Ill. App. 3d 416", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2517553 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/190/0416-01" ] }, { "cite": "424 N.E.2d 688", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "98 Ill. App. 3d 663", "category": "reporters:state", "reporter": "Ill. 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GERALD DALL, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE McCULLOUGH\ndelivered the opinion of the court:\nAfter a jury trial, defendant was convicted of aggravated criminal sexual assault and home invasion. (Ill. Rev. Stat. 1987, ch. 38, par. 12 \u2014 14(a)(2); Ill. Rev. Stat., 1988 Supp., ch. 38, par. 12 \u2014 11.) Subsequently, the trial court sentenced defendant to two, concurrent nine-year terms of imprisonment. Defendant appeals, arguing as follows: (1) the trial court erred in denying his motion to suppress physical evidence and statements; (2) he was not found guilty beyond a reasonable doubt; (3) the trial court abused its discretion in restricting cross-examination of the victim; (4) the admission of irrelevant evidence denied him a fair trial; (5) the prosecutor\u2019s closing argument was reversible error; (6) the trial court erred in instructing the jury; (7) the trial court erred in denying defendant\u2019s motion for a change of venue; (8) a conflict of interest by the State\u2019s Attorney\u2019s office caused reversible error; and (9) the trial court abused its discretion in sentencing.\nWe affirm.\nFACTUAL BACKGROUND\nL.D., the victim, lived in Springfield on September 18 and 19, 1988. She and defendant, who had been married for nine years, were divorced in August 1988. The court had awarded custody of the parties\u2019 only child, E.J., to L.D. However, defendant had filed a motion for reconsideration of that order. E.J. was staying with friends in Peoria during September. L.D. testified that she left the house at approximately 8:30 p.m. on September 18, 1988, and went to meet friends at a neighborhood bar. The light by the side door of the house was on when she left. She stayed at the tavern until 12:30 or 12:45 a.m. on September 19, 1988. While there, she consumed two beers, then switched to a soft drink.\nAfter L.D. drove home, she parked her car in the driveway about six to eight feet from the side door. The light was not working. As she unlocked the entrance and opened the door, someone wearing rubber gloves grabbed her from behind and forced her into the house. A struggle ensued on the landing, where her earrings fell out. Her assailant, whom she recognized as defendant, handcuffed and gagged her with a pair of nylons. Defendant then forced her into the kitchen. While in the kitchen, he talked about the breakup of their marriage and asked about any men she had been dating. After about 10 minutes, defendant put a knife to her throat and said he had come to kill her. Defendant asked whether L.D. would scream. After she shook her head no, he slid the knife under the gag and jerked the knife. The gag fell free. For the next two to three minutes, defendant asked questions about L.D.\u2019s boyfriends. He then hit her behind the ear, knocking her into a chair and onto the floor. The leg on the chair broke. As L.D. was lying on the floor, defendant played back the messages on her answering machine. She had messages on a tape before going out on September 18, 1988. The next day L.D. did not have any messages on the tape.\nAfter L.D. got up from the floor, defendant removed the handcuffs and forced her into the bedroom. When L.D. refused to remove her clothing, defendant started to undress her and broke her belt. Subsequently, L.D. agreed to undress. After she had undressed, defendant had sexual intercourse with her. Defendant told L.D. to clean up and followed her into the bathroom. She put a robe on, and she and defendant reentered the kitchen, where they smoked a cigarette. L.D. stated she ran toward the door, but defendant caught her. He again threatened to kill her.\nAfter a few minutes, defendant talked about rumors in Clinton that L.D. had left him for another man. He asked her to contact her attorney and have the divorce vacated. Defendant also told L.D. that Herb Pingsterhaus, the Clinton County Republican party chairman, would get her a job if she moved back to Clinton. L.D. stated that after defendant calmed down, she suggested they go out to a restaurant for coffee. Eventually, defendant agreed to go out and get coffee.\nDefendant then roamed around the house gathering items and placing them in a green bag. He picked up a police scanner, knife, handcuffs, and pantyhose. L.D. testified defendant became agitated because he could not locate the handcuff keys. Defendant said his car was parked several blocks away. L.D. volunteered to drive defendant to his car, since it was sprinkling. She entered the driver\u2019s side of her car and, as defendant was walking around the car, locked the doors. L.D. then drove to a nearby store where she telephoned the police.\nL.D. stated she had talked to defendant earlier on September 18, 1988. Defendant left the message on her answering machine at 10:45 a.m. He said it was an emergency concerning her son. She called back at 11 and learned no emergency existed. L.D. ended the conversation. Defendant called back twice, but L.D. did not return his calls. While the divorce was pending, defendant had called L.D. as many as 25 times a day. He sent numerous gifts and letters. L.D. did not ask defendant to come to Springfield on September 18, 1988. She did not consent to sexual intercourse on September 19, 1988, and had not given defendant authority to enter her house. During their nine-year marriage, she and defendant never engaged in bondage.\nL.D. stated she sustained several cuts and bruises, marks on her wrists, and a cut lip as a result of the incident.\nOn cross-examination, L.D. stated she and defendant had reconciled after separating in 1985. She had never seen defendant carry a bag while they were married. He often wore a police scanner clipped to his belt. L.D. stated defendant usually appeared nervous as his hands shook. L.D. admitted her ears and her genital area were not injured. In her written statement, she did not mention the gloves.\nSteven Lindsey, an employee of the White Hen Pantry, stated L.D. entered his store at approximately 2:15 a.m. on September 19, 1988. She asked to use the telephone. Her eyes were watering, she could barely talk, and she said she had been raped.\nKathy and Larry Whieties testified they met with L.D. at a tavern at 8:30 p.m. on September 18, 1988. She did not have any bruises at that time. They left at 12:30 a.m. on September 19, 1988. L.D. had consumed two or three beers.\nSpringfield police officer Bruce Alderson testified he met L.D. at the White Hen Pantry at 2:27 a.m. on September 19, 1988. Her clothes were neat, she had red watery eyes, she was very nervous, and she had a lump on her head. Alderson noted L.D.\u2019s wrists were red and sore. L.D. reported she had been raped. Alderson stated the marks on her wrists looked as if they were caused by someone struggling against handcuffs. L.D. did not tell Alderson defendant had a knife.\nSpringfield police officer Keith Ushman stated that at approximately 2:27 a.m. on September 19, 1988, he was investigating a possible burglary at Sixth and Black Streets in Springfield. He saw defendant, who was carrying a green bag, running south on Fifth Street. Ushman told defendant to stop and asked why he was running. Defendant stated he did not want to get wet. Ushman thought this was an unusual answer since he had been out in the mist for a long time and was not wet. Ushman stated defendant appeared quite nervous and was sweating profusely. Ushman asked defendant for some identification and defendant told him he did not have any. Ushman then asked why defendant was carrying the bag. Defendant told him he had valuable personal possessions in it which he did not want stolen from his vehicle.\nUshman stated defendant consented to a search of the bag. Defendant, in the hearing on his motion to suppress, stated that to the best of his knowledge, he did not consent to a search of the bag. At trial, defendant stated he consented to a search of the green bag. Ushman unzipped the bag and observed a police scanner tuned to the Springfield police department channel. It was common practice for burglars to carry police scanners. After observing the scanner, Ushman asked defendant where his identification was located and escorted defendant back to his vehicle. Defendant retrieved his license from the vehicle. While they were waiting for a license check, defendant stated he and his wife had had a fight. Ushman looked in the green bag again and saw a knife, rubber gloves, nylons, a note, handcuffs, and the scanner.\nSpringfield police officer Jeffrey Bivens assisted Ushman. Bivens told defendant the police would detain him until they could check on the welfare of L.D. Defendant said she would either be getting coffee or talking to the police. After the dispatcher stated L.D. was making a complaint, Bivens searched defendant and placed him in the squad car. Officer William Neale advised defendant of his Miranda rights.\nNeale stated defendant told him L.D. asked defendant to come to her house on September 18, 1988. They had consensual sexual intercourse. He accidentally picked up her nylons with the scanner. He brought the scanner because he would be able to hear if L.D. called the police and leave before they arrived. Subsequently, defendant talked to Neale and Detective Joe Goulet. He stated L.D. had called him and arranged to meet with him at the Springfield College parking lot on September 18, 1988. She did not appear at the lot so he drove to her house. Later, he drove back to the lot, parked, and walked to the house. L.D. arrived between 11:30 p.m. and 12:30 a.m. They engaged in consensual sexual intercourse and did not engage in any kind of bondage. Neale further testified L.D. told him that defendant had plastic gloves on when he entered the house.\nSpringfield police officer Tom Cocayne investigated L.D.\u2019s house. He found a pair of women\u2019s earrings on the landing adjacent to the side door. He observed a kitchen chair with a broken leg and noted that a portion of a broken belt was next to the chair. The rest of the belt was on the bedroom floor. The bed was made but messed up.\nSpringfield police officer John Adelman\u2019s testimony corroborated Cocayne\u2019s testimony. Adelman stated the kitchen telephone had been disconnected.\nWilliam Frank, a forensic serologist, testified seminal material found on L.D.\u2019s panties, a towel, and in the vaginal swab could be from defendant. Hairs found on the knot in the nylons had been forcibly removed and were consistent with L.D.\u2019s hair samples. The ends of the nylons had been cut. Stains from an enzyme predominantly found in saliva were on the pantyhose. The stains could have come from the victim.\nGoulet investigated the assault report. Defendant told Goulet L.D. had called him twice the previous weekend to set up a visit. Defendant set up a meeting for 10 p.m. at a parking lot. L.D. was not there so, after waiting 15 minutes, defendant drove to her home. She was not at home so defendant drove back to the lot, left his vehicle, and walked to L.D.\u2019s house. L.D. arrived between 11:30 p.m. and 12:30 a.m. She invited him inside, where they talked for about V-k hours. They then engaged in consensual intercourse. Defendant told Goulet no bondage occurred. L.D. had not asked to be gagged, and he had not gagged her. He did not handcuff her.\nGoulet also interviewed L.D. L.D. told him defendant had cut the nylons off with a knife. She did not say the knife was used to threaten her. She told Goulet that defendant had caught her as she ran toward the door and threatened to kill her again. In Goulet\u2019s opinion, the marks on L.D.\u2019s arms and wrists were consistent with those caused by a person struggling against handcuffs.\nOver defendant\u2019s objection, a note found in the green bag was admitted into evidence. The note said:\n\u201cEntrance\nTelephone\nQuestions\nBoyfriends\nLawyer\nRumor\nJob-summer-Herb\nLetters\nMom + me\nCleanup\nExit\nHerb\u201d\nThe green bag and its contents were also admitted.\nDefendant testified in his own behalf. He lived in Carlyle, Illinois, and was the sheriff of Clinton County. He had been elected to the sheriff\u2019s office for six terms. He started as a deputy sheriff in 1959. In his opinion, the handcuffs could not have caused the marks on L.D.\u2019s wrists and arms. Defendant stated he had a hereditary medical condition which caused his hands to shake and affected his close body control.\nHe and L.D. married in 1979. They had one child, E.J., who was eight at the time of the trial. In 1985, he and L.D. separated for IOV2 months before reconciling. L.D. filed a dissolution of marriage action in March 1987. She left the marital home in November 1987. Between March and November, he and L.D. continued to engage in sexual intercourse. L.D. left E.J. with defendant when she moved. In August 1988, the divorce became final. Defendant stated the divorce and custody battle were extremely bitter. Both parties wanted E.J. In August 1985, he filed a motion to reconsider the custody order. He called L.D. frequently because he loved her and wished to reconcile the marriage. He and L.D. engaged in sexual relations after November 1987.\nDefendant stated he called L.D. first on September 18, 1988; then, she returned his call. They agreed to meet in the Springfield College parking lot because L.D. did not want her family to know she was meeting defendant. Defendant did not want to leave his equipment in the car because it could be burglarized. L.D. did not meet defendant at the lot, so he drove by her house and her parents\u2019 house. He then drove back to L.D.\u2019s house and, subsequently, returned to the parking lot. At 11:15 to 11:20 p.m., he walked over to L.D.\u2019s house. It was drizzling rain at that time. L.D. arrived immediately after midnight. He told her she was late, and she responded that she had stopped for drinks with friends. Defendant further stated he held L.D.\u2019s purse while she unlocked the door. When she pushed open the door, she dropped items which she was holding in her hand. He helped her pick up the items off of the floor.\nDefendant admitted he was carrying a green duffle bag. He did not want the equipment, which he used in his position as sheriff, to litter his vehicle. Previously, he had kept the equipment in his patrol car, but when he got a new car, he needed to keep the items in the bag to keep them organized. The note had been in the bag since the spring of 1988. Defendant then provided an explanation of the words listed on the note. He stated that \u201centrance\u201d referred to a guardrail that he needed to place around a wheelchair lift so the county could qualify for self-insurance. \u201cTelephone\u201d referred to a new telephone system which had been installed in the courthouse. Defendant did not remember what \u201cquestions\u201d referred to. \u201cBoyfriends\u201d referred to his oldest daughter\u2019s boyfriends, of whom he did not approve. \u201cLawyer\u201d referred to his divorce lawyer. \u201cJobs-summer-Herb\u201d referred to jobs the Republican county chairman had procured for high school students. \u201cLetters \u2014 Mom + me\u201d refer to his one-third interest in real estate. \u201cClean up\u201d referred to prison inmates which he had used to clean areas in the county during the summer. It was to remind him to send a thank you note. \u201cExit\u201d referred to exit signs needed for the self-insurance program. \u201cRumors\u201d referred to rumors about a deputy who was cohabiting with someone in the county.\nDefendant denied wearing rubber gloves on September 18 or 19, 1988. He did not place a knife to L.D.\u2019s throat or cut a gag of pantyhose. Defendant carried a scanner with him to L.D.\u2019s house because she had called the police to report him being there a few weeks before. He took the bag to protect the scanner from the rain.\nAfter L.D. invited him into her house on September 19, 1988, they discussed reconciliation. They engaged in consensual intercourse. Defendant had been wearing the handcuffs clipped to his belt. When he undressed, he left the handcuffs on a chair. After he had dressed, defendant playfully cuffed L.D.\u2019s hands and said he would take her home now instead of waiting. The nylons were on the end table in the living room. He accidentally picked them up when he gathered his other items. Defendant denied gagging L.D., handcuffing her behind her back or hitting her. Defendant stated he and L.D. were in good spirits when they left the house.\nAfter L.D. locked him out of her vehicle, he started walking back to his car. He did not recall telling the police he was nervous because he had had a fight with his wife. Defendant did not believe he told police officers that he and L.D. were to meet at her house. He still loved L.D. and begged her to reconcile with him.\nOn cross-examination, defendant stated that at one time L.D. had sought an order of protection.\nIn rebuttal, Eric Rhein, L.D.\u2019s attorney in the custody action, stated the criminal matter concerning defendant and L.D. was not raised in the custody dispute.\nL.D. denied engaging in consensual sexual intercourse with defendant after she had left the marital home.\nANALYSIS\nSuppression Motion\nDefendant filed motions to suppress the items found in the green bag and statements made by him thereafter. He based his trial motions on fourth and fifth amendment grounds. (U.S. Const., amends. IV, V.) On appeal, defendant argues the court erred in denying his motions as Ushman did not have a reasonable suspicion that he was involved in criminal activity at the time Ushman initiated a Terry stop. Defendant argues his statements that he was nervous because he had fought with his wife and she was either getting coffee or calling the police were results of the illegal detention and should be suppressed. Finally, he contends he did not consent to a search of the green bag and, if he did consent, his consent was coerced.\nThe State responds that this was a chance encounter between Ushman and defendant, which did not implicate the fourth amendment. Alternatively, the State argues Ushman had a reasonable suspicion that defendant was engaged in criminal activity when he stopped him. The fourth amendment provides \u201c[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.\u201d (U.S. Const., amend. IV.) In Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, the Supreme Court noted the fourth amendment provides security from unreasonable searches and seizures. However, when a police officer has a reasonable suspicion, based on articulable facts, that a citizen is engaged, has engaged, or is about to engage in criminal activity, the officer may stop and question the person. If he reasonably fears for his own safety or the safety of another, he may conduct a limited search for weapons.\nHowever, not all encounters between citizens and law enforcement officers implicate the fourth amendment.(Florida v. Royer (1983), 460 U.S. 491, 75 L. Ed. 2d 229, 103 S. Ct. 1319; United States v. Mendenhall (1980), 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870.) Although consensual questioning does not implicate the fourth amendment (Royer, 460 U.S. at 497-98, 75 L. Ed. 2d at 236, 103 S. Ct. at 1324), a seizure of the person would implicate the fourth amendment. A seizure occurs when a law enforcement officer restrains the citizen\u2019s liberty by force or by a show of authority. Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d at 509,100 S. Ct. at 1877.\nSection 107 \u2014 14 of the Code of Criminal Procedure of 1963 also provides a police officer may stop a person in a public place when from the circumstances he reasonably infers that criminal activity is occurring. The officer may ask for the individual\u2019s name, address, and an explanation of his actions. (Ill. Rev. Stat. 1987, ch. 38, par. 107\u2014 14.) The statute codifies Terry. People v. Lee (1971), 48 Ill. 2d 272, 269 N.E.2d 488.\nAn objective standard is used in determining the reasonableness of the stop. {People v. Tribett (1981), 98 Ill. App. 3d 663, 424 N.E.2d 688.) A trial court\u2019s findings on a motion to suppress will not be reversed unless the findings are manifestly erroneous. People v. Jones (1989), 190 Ill. App. 3d 416, 545 N.E.2d 1332.\nHere, Ushman yelled at defendant and ordered him to stop. He then approached and asked defendant questions. In Mendenhall, the Supreme Court noted language or tone of voice indicating that compliance is required is a factor which indicates a seizure of the person has occurred. (Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d at 509, 100 S. Ct. at 1877.) A seizure of defendant occurred when Ushman ordered him to stop. However, the trial court\u2019s determination that the stop was justified under Terry and the Code of Criminal Procedure of 1963 is supported by the evidence. It was after 2 a.m. Defendant was running faster than a jog in an area where Ushman was investigating a burglary. He was carrying a duffle bag. These factors justify Ushman\u2019s initial questioning of defendant. Ill. Rev. Stat. 1987, ch. 38, par. 107 \u2014 14.\nAccording to Ushman, defendant did not have an identification, appeared very nervous, and was sweating profusely. Defendant provided an explanation for running which Ushman believed was suspicious. Finally, although defendant was ambivalent about whether he consented to a search of the bag during the hearing on his motion to suppress, at trial defendant stated he gave Ushman consent to look in the bag. Ushman\u2019s testimony was consistent with consent. After Ushman observed the police scanner, which he knew was commonly used by burglars in the Springfield area, he was justified in holding defendant to investigate further. The trial court correctly denied defendant\u2019s motion to suppress.\nReasonable Doubt\nDefendant next argues he was not proved guilty beyond a reasonable doubt of aggravated criminal sexual assault because L.D.\u2019s testimony was not clear and convincing or substantially corroborated. He contends the jury erred in finding L.D. more credible. This court has recently abandoned the \u201cclear and convincing or substantially corroborated\u201d standard in viewing the sufficiency of evidence in a sex offense case. (People v. Roy (1990), 201 Ill. App. 3d 166, 558 N.E.2d 1208, appeal denied (1991), 136 Ill. 2d 552; People v. James (1990), 200 Ill. App. 3d 380, 558 N.E.2d 732, appeal denied (1990), 135 Ill. 2d 562; People v. Cole (1990), 193 Ill. App. 3d 990, 550 N.E.2d 723 (Steigmann, J., specially concurring).) The appropriate standard of review is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt. (Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789; People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) A reviewing court will not overturn a jury\u2019s credibility determination. Collins, 106 Ill. 2d 237, 478 N.E.2d 267.\nHere, a credibility question was posed to the jury. Additionally, L.D.\u2019s testimony that she had not consented to sexual intercourse was supported by the evidence of her physical injuries, testimony that the handcuffs had injured her wrists, evidence that the pantyhose had been used as a gag and cut, and indications that a struggle had occurred at the residence. Items found on defendant\u2019s person also supported the inference that he had engaged in criminal activity. The evidence was sufficient to sustain the conviction.\nDefendant next argues he was not proved guilty beyond a reasonable doubt of home invasion. (Ill. Rev. Stat., 1988 Supp., ch. 38, par. 12 \u2014 11.) Defendant contends that since L.D. was entering an empty house at the time defendant attacked her and forced her into the house, no one was \u201cphysically present\u201d in the house at the time of the invasion. Section 12 \u2014 11 of the Criminal Code of 1961 provides:\n\u201c(a) A person who is not a peace officer acting in the line of duty commits home invasion when without authority he or she knowingly enters the dwelling place of another when he or she knows or has reason to know that one or more persons is present or he or she knowingly enters the. dwelling place of another and remains, in such dwelling place until he or she knows or has reason to know that one or more persons is present and\n(1) While armed with a dangerous weapon uses force or threatens the imminent use of force upon any person or persons within such dwelling place whether or not injury occurs, or\n(2) Intentionally causes any injury to any person or persons within such dwelling place.\u201d Ill. Rev. Stat., 1988 Supp., ch. 38, par. 12 \u2014 11(a).\nDefendant relies on People v. Pettit (1984), 101 Ill. 2d 309, 461 N.E.2d 991. However, Pettit is distinguishable. Pettit\u2019s conviction for home invasion was reversed on appeal. Pettit and two others had invaded the first floor of a house which had been divided into two apartments. The residents of the upstairs apartment were baby-sitting for the downstairs residents. All of the evidence indicated Pettit and the other defendants were unaware of the fact that the house had been divided into two apartments. After waiting for. the first-floor apartment dwellers to return, Pettit took his hostages upstairs. He was charged with home invasion of the second-floor apartment. The supreme court affirmed reversal of the convictions, noting that no evidence indicated Pettit knew he was entering the \u201cdwelling of another\u201d when he went upstairs.\nHere, L.D. had unlocked both the locks on her side door and started to open it when defendant accosted her. Forcing a person into her own home and following that person into the home without authority satisfies the portion of the home invasion statute, that defendant, without authority, enters the dwelling place of another knowing that one or more persons are present. The evidence, thus, supports a finding that defendant, who watched L.D. start to enter, knew she was home.\nCross-Examination\nDefendant next argues the trial court abused its discretion in restricting cross-examination of L.D. to show bias. Defendant wanted to introduce evidence that L.D. had been accused of sexually assaulting E.J. The trial court granted the State\u2019s motion in limine to preclude introduction of this evidence.\nThe confrontation clause of the sixth amendment (U.S. Const., amend. VI) guarantees a defendant the right to cross-examine a witness against him for the purpose of showing the witness\u2019 motive to testify falsely, bias, or interest. (Davis v. Alaska (1974), 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105.) However, the sixth amendment does not prevent the trial judge from imposing limits on defense counsel\u2019s inquiry. (People v. Harris (1988), 123 Ill. 2d 113, 526 N.E.2d 335.) A trial judge retains wide latitude in imposing reasonable limits on cross-examination based on concerns of harassment, prejudice, confusion of issues, witness safety, or repetitive interrogation. (Harris, 123 Ill. 2d at 144, 526 N.E.2d at 348.) The relevant inquiry on review is whether the limitation created a substantial danger of prejudice by depriving defendant of the ability to test the truth of the witness\u2019 direct testimony. (Harris, 123 Ill. 2d at 145, 526 N.E.2d at 348.) The trial court will only be overturned upon a showing of a clear abuse of discretion which prejudiced the defendant. People v. Roy (1988), 172 Ill. App. 3d 16, 526 N.E.2d 204, cert, denied (1989), 490 U.S. 1094 104 L. Ed. 2d 997, 109 S. Ct. 2441.\nExtensive evidence was introduced during pretrial motion hearings on the admissibility of the allegation of sex abuse.- That evidence indicates defendant had been found in contempt of court for making unfounded allegations that E.J. had been abused by L.D.\u2019s son by a prior marriage. His divorce attorney had been censured by the Clinton County court for lying in a pleading. Defendant then took E.J. to a psychologist. The psychologist in an affidavit and in deposition stated he believed defendant prompted E.J. to accuse his stepbrother of molestation. However, after several sessions, the psychologist believed E.J. had been abused by someone. The psychologist stated that either defendant or L.D. could have abused E.J. It was also possible that E.J. had learned how to create a believable allegation of sexual abuse. E.J. wanted to stay -with his father. Defendant filed a motion for reconsideration of custody, alleging L.D. had sexually abused E.J. We note that subsequently an investigation by the Department of Children and Family Services (DCFS) found this allegation was unfounded.\nThe trial judge stated in ruling on the motion in limine that defendant could bring out that a custody dispute was ongoing and bitter. Defendant could also establish that he had filed a motion for reconsideration of custody. However, a minicustody battle would not occur in the criminal trial.\nNo abuse of discretion occurred from this ruling. Had defendant been allowed to examine L.D. about the sexual abuse allegation, the State could have brought forth information concerning prior allegations and the entirety of the psychologist\u2019s opinion in an effort to rehabilitate L.D.\u2019s credibility. Generally, when cross-examination of a witness develops that the witness is biased, the offering party is entitled to rehabilitate the witness. (People v. Burke (1964), 52 Ill. App. 2d 159, 201 N.E.2d 636.) This testimony would have caused a confusion of the issues in the instant case. It also would have been unduly harassing since the allegation of sexual abuse in the instant case against L.D., due to the past circumstances, was not reliable.\nAdditionally, L.D.\u2019s divorce attorney testified the criminal matter was not used by L.D. in the custody proceedings. We note that had all of the information concerning the allegations of sexual abuse been brought forth, defendant could have been harmed rather than aided. He was allowed to develop his defense that L.D. was lying due to the fact that she wished to maintain custody of the child. The trial court properly exercised its discretion in limiting questioning concerning allegations of sexual abuse.\nEvidentiary Errors\nDefendant next argues the trial court erred in admitting evidence (1) that L.D. had sought an order of protection; (2) that he had threatened to kill L.D.; (3) that L.D. did not use the pending criminal matter during the hearings on defendant\u2019s motion for reconsideration of custody; and (4) of the note found in the duffle bag. Defendant contends the evidence was irrelevant. He also contends the order of protection and threat indicate he committed an uncharged offense. Evidence is relevant when it tends to make the existence or nonexistence of a fact of consequence more or less probable. (People v. Johnson (1986), 114 Ill. 2d 170, 499 N.E.2d 1355; People v. Free (1983), 94 Ill. 2d 378, 447 N.E.2d 218.) Physical evidence is generally admissible if it is tied to defendant and the crime. Free, 94 Ill. 2d 378, 447 N.E.2d 218.\nDefendant made a motion in limine seeking to -prohibit admission of evidence that he had violated an order of protection. The pretrial judge found the order of protection was invalid. She, therefore, allowed the motion. Prior to trial, the prosecution filed a motion seeking to use the fact that L.D. had sought an order of protection as relevant to defendant\u2019s authority to enter the home. Over defendant\u2019s objection, the court stated that it would allow only the question concerning whether L.D. had sought an order of protection.\nThe prosecution did not introduce evidence of the order of protection in its case in chief. Defendant, during his testimony, stressed that he was trying to reconcile with L.D. He noted that L.D. would often invite him and E.J. to go on outings; then, she would call the police when he arrived. This was the reason defendant gave for carrying the police scanner. Defendant also testified that September 18, 1988, L.D. had invited him to her home. On cross-examination, defendant admitted L.D. had sought an order of protection. The fact that L.D. had sought an order of protection was relevant as rebutting defendant\u2019s contention that she invited him to the house. It also served to discredit defendant\u2019s testimony. The order of protection was relevant.\nThe threats defendant made while in L.D.\u2019s house were also relevant. They made more probable L.D.\u2019s testimony that she did not consent to intercourse. Additionally, the fact that defendant threatened to kill L.D. was relevant to the use of force in the commission of the aggravated sexual assault and tended to establish that his entry into the home was not authorized.\nDefendant contends the order of protection and threat were evidence of uncharged offenses. Defendant argues this evidence was highly prejudicial.- Evidence of crimes for which the defendant is not on trial is not admissible if relevant merely to show defendant\u2019s propensity to commit crime. (People v. Lindgren (1980), 79 Ill. 2d 129, 402 N.E.2d 238.) However, evidence of other offenses is admissible if it is relevant for any purpose other than to show the propensity to commit crime. People v. Phillips (1989), 127 Ill. 2d 499, 538 N.E.2d 500.\nThe fact that L.D. sought an order of protection does not indicate defendant committed a crime. The statement did not indicate the court had issued the order nor did it indicate defendant had violated it. Defendant\u2019s threat to kill L.D. may indicate an uncharged offense. However, it is relevant to show the lack of consent to sexual intercourse and indicates defendant\u2019s intent was to harm his victim. Evidence tending to show intent or motive is admissible even though it implicates defendant in an uncharged offense. Phillips, 127 Ill. 2d 499, 538 N.E.2d 500.\nThe rebuttal testimony from Eric Rhein, L.D.\u2019s attorney in the custody case, was relevant. Defendant\u2019s defense was that the charge had been fabricated to gain an advantage in the custody action. Rhein\u2019s testimony that L.D. had not introduced the criminal charges in the custody proceedings tended to make the fabrication defense less credible. It was, therefore, relevant.\nFinally, defendant argues the note found in his green bag was irrelevant because it was written in the spring of 1988 and defendant had an innocent explanation for the references within it. The list corresponded exactly to the order of events which occurred at L.D.\u2019s home. Ushman found the note in the duffle bag which defendant was carrying the night he was arrested. Physical evidence is relevant if connected to the defendant and the offense. (Free, 94 Ill. 2d 378, 447 N.E.2d 218.) The relevancy of the note is not diminished by defendant\u2019s innocent explanation of its contents.\nClosing Argument\nDefendant argues the prosecutor\u2019s closing argument was prejudicial error because it diminished the presumption of innocence. Defendant did not raise this issue in his post-trial motion. He has, therefore, waived review of the question. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124, cert, denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.) On the merits, no error occurred. The prosecutor may state his conclusion that defendant or a defense witness is lying, if the statement is based upon the evidence or a reasonable inference from it. (People v. Tiller (1982), 94 Ill. 2d 303, 447 N.E.2d 174; People v. Jones (1987), 155 Ill. App. 3d 641, 508 N.E.2d 357.) Here, the prosecutor stated either defendant or L.D. was lying, the jury had to decide a credibility question and, in his opinion, defendant had the better motive to lie. The presumption of innocence was not diminished by this argument.\nInstructions\nDefendant next argues the trial court erred in denying his issues instruction on home invasion. Defendant\u2019s instruction is not a part of the record on appeal. Therefore, we cannot review the propriety of denying the instruction. Defendant has waived this issue. People v. Leonard (1988), 171 Ill. App. 3d 380, 526 N.E.2d 397.\nDefendant next argues giving the circumstantial evidence instruction constituted reversible error. Defendant contends all the evidence in the case was direct evidence. Therefore, the instruction allowed the jury to speculate on matters not in evidence. Circumstantial evidence is proof of certain facts from which the jury may infer other connected facts, which usually follow from the established fact. (People v. Rhodes (1981), 85 Ill. 2d 241, 422 N.E.2d 605.) Several items pf evidence in the instant case were circumstantial in nature. Therefore, giving the instruction was not error.\nDuring deliberations, the jurors sent a question to the court. They asked whether any police reports supported L.D.\u2019s testimony that her porch light was out and had been loosened in its socket. Defendant argues this indicates the jury was confused by the circumstantial evidence instruction. On the contrary, we find the question indicates the jury was considering an item of circumstantial evidence which could indicate an unauthorized entry into the home. No error occurred in instructing the jury.\nPlace Of Trial\nDefendant next argues the trial court erred in failing to change the place of trial. Defendant contends media coverage made it impossible to obtain an impartial jury. On April 18, 1989, defendant filed a motion to change the place of trial due to newspaper publicity. Attached to the motion was a copy of an April 13, 1989, newspaper article. The article noted defendant, who was awaiting trial for the instant offenses, had been arrested for harassing L.D. On August 3, 1989, defendant filed a second motion for a change of venue. This motion alleged extensive media coverage necessitated a change in the place of trial.\nDefendant attached computer-generated copies of 11 articles from the State-Journal Register to this motion. None of the articles had run on the front page. Generally, they reported the incident, defendant\u2019s subsequent arrest for violations of the order of protection, contempt findings in the dissolution matter, and the progress of the lawsuit. Two articles dealt with Clinton County officials\u2019 reactions to the case and defendant\u2019s resignation as sheriff. The trial court denied the motion but stated defendant could renew it if the jury selection process indicated an inability to obtain an untainted jury.\nJury selection occurred on November 27, 1989. Twenty-seven potential jurors were examined prior to selection of 12 panel members and 2 alternates. The alternates did not sit on the jury. Five of the twelve jurors had heard or read something about the case before trial. Juror Jack Bricker stated he vaguely remembered seeing something in the paper about the case. However, he could not recall any details, and the article would not influence him. Fannie Heninger stated she had read about the case in the paper. However, the articles would not influence her. Gretchen Leming stated she heard a little about the case on the news the night before jury selection. She had also heard a radio report on the case. However, nothing she had heard would influence her decision. Jurors Merwyn Nelson and Janice Rutledge stated they had read about the case in the paper. However, both jurors said the articles would not influence their decision. Defense counsel utilized 7 out of his 10 peremptory challenges. He did not renew his motion for a change of venue prior to trial or during the jury selection process.\nIn Irvin v. Dowd (1961), 366 U.S. 717, 722, 6 L. Ed. 2d 751, 755, 81 S. Ct. 1639, 1642, the Supreme Court, quoting In re Murchison (1955), 349 U.S. 133, 136, 99 L. Ed. 942, 946, 75 S. Ct. 623, 625, held that \u201c \u2018[a] fair trial in a fair tribunal is a basic requirement of due process.\u2019 \u201d However, the Irvin court also held that jurors need not be totally unaware of a case for a defendant to receive a fair trial. The Irvin court stated: \u201cIt is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.\u201d (Irvin, 366 U.S. at 723, 6 L. Ed. 2d at 756, 81 S. Ct. at 1643; see also People v. Britz (1988), 123 Ill. 2d 446, 528 N.E.2d 703.) Determining whether defendant received a fair trial by an impartial jury necessitates an independent examination of the record. (People v. Taylor (1984), 101 Ill. 2d 377, 391, 462 N.E.2d 478, 484.) The reviewing court must evaluate the voir dire of the jurors. (Britz, 123 Ill. 2d 446, 528 N.E.2d 703; People v. Sanchez (1986), 115 Ill. 2d 238, 503 N.E.2d 277.) The record as a whole must establish more than a potential for bias. (Taylor, 101 Ill. 2d 377, 462 N.E.2d 478.) The court may also consider that defendant did not exhaust his peremptory challenges. Although this factor is not conclusive, it rebuts an allegation of bias. Sanchez, 115 Ill. 2d 238, 503 N.E.2d 277.\nBased upon our review of the record, the jury voir dire, and the articles, we conclude the level of awareness of the case by the jurors did not deny defendant a fair trial. None of the jurors recalled specific details of the case. All said they could decide based upon the evidence at trial. Additionally, the articles were not as extensive or prejudicial as those appearing in other cases. See Taylor, 101 Ill. 2d 377, 462 N.E.2d 478.\nNo error occurred in denying the motion for a change in venue.\nConflict Of Interest\nDefendant next argues that a potential conflict of interest existed between L.D. and the State\u2019s Attorney\u2019s office which denied him a fair trial. Defendant contends that if the sexual abuse allegations against L.D. had been true, the State\u2019s Attorney would have had to prosecute its own witness. He maintains this conflict would have caused the State\u2019s Attorney to protect L.D.\u2019s reputation. A representative of DCFS testified during the hearing on defendant\u2019s post-trial motion. She and a Springfield police officer investigated the sexual abuse allegation against L.D. She and the officer concluded the allegation was unfounded and not credible. Section 6 of \u201cAn Act in regard to attorneys general\u201d provides when a State\u2019s Attorney is \u201cinterested\u201d in any cause or proceeding which he will prosecute, the court may appoint a special prosecutor. (Ill. Rev. Stat. 1989, ch. 14, par. 6.) A prosecutor is \u201cinterested\u201d for purposes of the statute if he is interested as a private individual or his office is a-party to the action. (Baxter v. Peterlin (1987), 156 Ill. App. 3d 564, 509 N.E.2d 156.) Performance of one\u2019s official functions will not create a conflict of interest. See generally Environmental Protection Agency v. Pollution Control Board (1977), 69 Ill. 2d 394, 372 N.E.2d 50.\nIn the instant case, the sexual abuse allegations had been determined to be unfounded. Even if the allegations were credible, the State\u2019s Attorney would not have been presented with a legal conflict of interest. He would not have been personally interested in the matter. The State's Attorney\u2019s office would be carrying out its official duties in pursuing any action against L.D. We note also that defendant did not file a motion for a special prosecutor based upon any conflict of interest. The issue, on appeal, has little merit.\nSentencing\nDefendant argues the trial court abused its discretion in sentencing him to two concurrent terms of nine years\u2019 imprisonment. Defendant contends the trial court failed to give adequate consideration to his lack of a prior criminal record and rehabilitative potential. A reviewing court will not overturn a trial court\u2019s sentencing determination unless there is an abuse of discretion. (People v. Almo (1985), 108 Ill. 2d 54, 483 N.E.2d 203.) The trial court is in the best position to assess the various matters which influence a sentencing determination. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) Contrary to defendant\u2019s assertions, the record shows the sentencing court carefully considered his past, his potential for rehabilitation, and the nature of the offenses. We cannot say the court abused its discretion in sentencing. Therefore, we affirm the trial court.\nAffirmed.\nLUND, P.J., and GREEN, J., concur.", "type": "majority", "author": "JUSTICE McCULLOUGH" } ], "attorneys": [ "Michael J. Costello, of Immel, Zelle, Ogren, McClain & Costello, of Springfield, and Arthur J. Inman, of Peoria, for appellant.", "Donald M. Cadagin, State\u2019s Attorney, of Springfield (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. GERALD DALL, Defendant-Appellant.\nFourth District\nNo. 4\u201490\u20140120\nOpinion filed January 17, 1991.\n\u2014 Rehearing denied February 25, 1991.\nMichael J. Costello, of Immel, Zelle, Ogren, McClain & Costello, of Springfield, and Arthur J. Inman, of Peoria, for appellant.\nDonald M. Cadagin, State\u2019s Attorney, of Springfield (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": "0508-01", "first_page_order": 530, "last_page_order": 552 }