{ "id": 5187403, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS WEST, Defendant-Appellant", "name_abbreviation": "People v. West", "decision_date": "1992-08-19", "docket_number": "No. 2\u201490\u20140121", "first_page": "578", "last_page": "596", "citations": [ { "type": "official", "cite": "234 Ill. App. 3d 578" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "104 Ill. 2d 504", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3147214 ], "pin_cites": [ { "page": "525" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/104/0504-01" ] }, { "cite": "142 Ill. 2d 204", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3236877 ], "pin_cites": [ { "page": "241" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/142/0204-01" ] }, { "cite": "116 Ill. 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App. 3d", "case_ids": [ 3390908 ], "pin_cites": [ { "page": "281" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/52/0277-01" ] }, { "cite": "42 Ill. App. 3d 408", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2642267 ], "pin_cites": [ { "page": "415" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/42/0408-01" ] }, { "cite": "79 Ill. App. 3d 156", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5608950 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "165" }, { "page": "165-66" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/79/0156-01" ] }, { "cite": "82 Ill. App. 3d 192", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3225295 ], "weight": 2, "pin_cites": [ { "page": "196" }, { "page": "196-97" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/82/0192-01" ] }, { "cite": "104 Ill. 2d 375", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3146378 ], "opinion_index": 0, "case_paths": [ "/ill-2d/104/0375-01" ] }, { "cite": "69 Ill. 2d 200", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5455316 ], "opinion_index": 0, "case_paths": [ "/ill-2d/69/0200-01" ] }, { "cite": "122 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550081 ], "pin_cites": [ { "page": "186" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0176-01" ] }, { "cite": "54 Ill. App. 3d 830", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3403939 ], "weight": 2, "pin_cites": [ { "page": "833" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/54/0830-01" ] }, { "cite": "134 Ill. 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App. 3d", "case_ids": [ 5253623 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/224/1017-01" ] }, { "cite": "201 Ill. App. 3d 166", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2594646 ], "weight": 3, "pin_cites": [ { "page": "185" }, { "page": "185" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/201/0166-01" ] }, { "cite": "497 U.S. 805", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6219632 ], "weight": 5, "pin_cites": [ { "page": "822" }, { "page": "656" } ], "opinion_index": 0, "case_paths": [ "/us/497/0805-01" ] }, { "cite": "205 Ill. App. 3d 567", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2569177 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "581-82" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/205/0567-01" ] }, { "cite": "191 Ill. App. 3d 529", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 5253623 ], "pin_cites": [ { "page": "1029" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/224/1017-01" ] }, { "cite": "497 U.S. 805", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6219632 ], "weight": 9, "pin_cites": [ { "page": "822" }, { "page": "656" }, { "page": "3149" }, { "page": "821-22" }, { "page": "656" }, { "page": "3150" } ], "opinion_index": 1, "case_paths": [ "/us/497/0805-01" ] } ], "analysis": { "cardinality": 1211, "char_count": 41039, "ocr_confidence": 0.792, "pagerank": { "raw": 1.6509090163343098e-07, "percentile": 0.6927353679693294 }, "sha256": "ccc38352c984855fda610ee0b4a66d03cd0ced104c4c707a34f479fea168dfef", "simhash": "1:dba6f40f744cb548", "word_count": 6862 }, "last_updated": "2023-07-14T17:59:47.941433+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS WEST, Defendant-Appellant." ], "opinions": [ { "text": "JUDGE WOODWARD\ndelivered the opinion of the court:\nFollowing a jury trial, the defendant, Thomas West, was convicted of two counts of aggravated criminal sexual abuse (Ill. Rev. Stat. 1989, ch. 38, par. 12 \u2014 16(c)(l)(i)) and was sentenced to serve a term of three years\u2019 imprisonment in the Department of Corrections. Defendant appeals, raising the following issues: (1) whether the admission of the victim\u2019s out-of-court statement was reversible error; (2) whether the defendant was proved guilty beyond a reasonable doubt; (3) whether the defendant was denied a fair trial due to certain evidentiary rulings by the trial court; (4) whether defendant was denied a fair trial by the prosecutor\u2019s closing argument; and (5) whether defendant was denied the effective assistance of counsel.\nMOTION TO SUPPRESS\nPrior to trial, defendant filed a motion to suppress a written statement he gave to Officer Ralph Henriquez of the Waukegan police department. At the hearing held on the motion, Officer Henriquez testified that on August 30, 1989, at approximately 10:30 p.m., he interviewed the defendant at the Waukegan police department concerning allegations of certain actions between himself and his seven-year-old niece, S.W. After the defendant had been given Miranda warnings, he told Henriquez he would talk to him. Defendant then gave a statement, which Henriquez typed up and defendant signed. According to the statement, defendant admitted putting his arms around S.W. from behind and touching her private area; that he showed S.W. a poster with some women on it; and that he had pulled down his pants exposing himself to her and signaled to her to come over to him but that S.W. had then left the room. Henriquez denied ordering the defendant to sign the statement or promising him anything in return for his signature on the statement. Henriquez further testified that before signing the statement defendant told him that the statement was true and accurate.\nOn cross-examination, Henriquez testified that defendant was not in custody during the interview. He denied telling defendant that if he signed the statement Henriquez would help him get out of jail the next morning. Henriquez denied that defendant told him he had never touched S.W.\nDefendant testified that he was locked in a cell at the Waukegan police department for two to three hours prior to his interview with Officer Henriquez. After Henriquez advised him of his rights, defendant agreed to talk to him. In response to Henriquez\u2019 questions, defendant told him that he never touched S.W. According to defendant, Henriquez gave him a piece of paper to sign which defendant read. When he got to the part of the statement which said that he had touched S.W., defendant told Henriquez that the statement was not true. Henriquez then told him that if he signed the statement it would go easier on him in court and that he would probably be released the next morning. Defendant also testified that Henriquez told him that he had to sign the statement.\nOn cross-examination, defendant denied that Henriquez had threatened him but reiterated that Henriquez had told him that he had to sign the statement and that he would go easy on him in court.\nThe trial court found Officer Henriquez\u2019 testimony to be the more credible and denied the motion to suppress.\nTHE TRIAL\nOutside the presence of the jury, a hearing was held to establish the competency of seven-year-old S.W. Under questioning by the State, S.W. demonstrated that she could spell her name, knew where she attended school, what grade she was in, what her teacher\u2019s name was and what subjects she studied. She could also recall past events and knew the difference between the truth and a lie. The trial court found that she was competent to testify.\nFOR THE STATE\nDavid W., S.W.\u2019s father, testified that on the afternoon of August 30, 1989, he received a telephone call at work from his son, David, Jr. Over the objection of the defendant, but with a limiting instruction, David W. was permitted to testify that David, Jr., told him that defendant had \u201cmessed\u201d with S.W. and had tried to fondle her in some way. The witness told David, Jr., to go with S.W. to his fiancee\u2019s house, and he would meet them there. After talking to S.W., David W. returned to his house, obtained a knife and would have gone after defendant. However, he was stopped by his mother and sisters, and defendant ran out the back door. The police were called. S.W. identified a picture of a semi-nude woman that the police showed her.\nOn cross-examination, David W. testified that S.W. not only told him that defendant had exposed himself to her, but he had rubbed up against her behind. He further testified that he did not tell David Asma, the investigator from the public defender\u2019s office, that defendant had rubbed up against S.W.\nS.W. testified that she was in the basement of her home helping the defendant with his laundry. Defendant showed her a picture of a naked woman. Defendant then touched her behind. S.W. demonstrated this act by putting the pubic area of an adult male doll against the buttocks area of a small female doll. S.W. stated that defendant did not touch her anywhere else. According to S.W., defendant then went upstairs but returned to the basement and went inside a curtained area that he used as a bedroom. He called to S.W. to come into his bedroom, but she only went as far as the curtains. She saw defendant with his pants down exposing his \u201cprivates\u201d to her. Defendant signaled her with his finger to come to him, but S.W. ran upstairs.\nOn cross-examination, S.W. testified that the prosecutors had told her what places on the dolls defendant had touched her. She did not know exactly where defendant was when he was behind her. She did not remember telling her Aunt Pat that the defendant had not touched her. She did remember telling her Aunt Bianca that defendant had just bumped her. She did not remember talking to David Asma.\nOn redirect examination, S.W. testified that the prosecutors had not told her what happened but that she had told them what had happened.\nOut of the presence of the jury, a hearing was conducted to determine if S.W.\u2019s out-of-court statement to Officer Henriquez was admissible pursuant to section 115 \u2014 10 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 115 \u2014 10).\nHenriquez testified that on August 30, 1989, at approximately 10 p.m., he questioned S.W. in the advocacy room of the Waukegan police department. S.W.\u2019s father sat just outside of the room, and the door to the room was open. Henriquez asked S.W. to tell him what the defendant had done to her. She told him that defendant bumped his private part against her private part in back and demonstrated this with the use of male and female dolls. S.W. also told him that defendant put his hands around her placing his hands on her tummy. Defendant then lifted his hand and placed it on her private part. She identified her private part as the groin area on the female doll. S.W. then told Henriquez that defendant then gave her a book with naked ladies in it. She gave the book back to the defendant, who then went into his room. S.W. heard defendant call to her, at which time she saw defendant with his pants down and his private part out, motioning to her with his finger. S.W. stated that she walked to the curtain, and defendant motioned to her again with his finger. She told the defendant, \u201cNo way,\u201d and tried to run upstairs. According to S.W., although defendant tried to grab her by the pants leg and pull her pants down, he was not able to, and she ran upstairs. S.W. also told him that defendant had never done anything like this to her before.\nOn cross-examination, Officer Henriquez testified that he questioned S.W. almost immediately after she arrived at the police department. The interview took place at 8 p.m. Henriquez explained that, as he held the dolls, he asked S.W. to point out the areas that defendant had touched her.\nThe trial court concluded that S.W.\u2019s statement fulfilled the requirements of section 115 \u2014 10 as far as time, content and circumstances surrounding it and allowed it into evidence. Prior to Henriquez\u2019 testimony before the jury, the trial court instructed the jury as follows:\n\u201cYou have before you evidence that [S.W.] made statements concerning the offenses charged in this case. It is for you to determine whether the statements were made and if so, what weight should be given to the statements. In making that determination, you should consider the age and maturity of [S.W.], the nature of the statements, and the circumstances under which they were made.\u201d\nOfficer Henriquez then testified in accordance with his prior testimony given outside of the presence of the jury and with his testimony at the hearing on defendant\u2019s motion to suppress.\nOn cross-examination, Officer Henriquez testified that at least one other police officer had spoken with S.W. prior to his interview with her. At the time he interviewed him, the defendant did not have an attorney with him. Henriquez did not tape-record or videotape his interview with the defendant. Defendant did not write out the statement; Henriquez typed it himself. Henriquez agreed that obtaining an inculpatory statement from a suspect made for a better case.\nFOR THE DEFENSE\nPatricia Hagler, defendant\u2019s sister, testified that on August 30, 1989, she went to pick up S.W. at the home of Jasmine Wadsworth, her brother, David W.\u2019s, girlfriend. In the presence of Jasmine and S.W.\u2019s two brothers, Patricia asked S.W. if the defendant had touched her, and S.W. told her no. In a second conversation, S.W. denied that defendant had touched her. S.W. never told her that defendant had bumped her.\nOn cross-examination, Patricia testified that after she brought S.W. home, they did not have any further conversation. Patricia only asked S.W. if defendant had touched her, nothing more specific.\nBianca Jones, another of defendant\u2019s sisters, testified that on August 30, 1989, after Patricia had brought S.W. home, she took S.W. aside and asked her what happened. S.W. told her that, while she was helping the defendant do his laundry, he bumped up against her. S.W. denied that defendant had molested or touched her. She examined S.W. but found no physical indication that S.W. had been molested. S.W. also told her that defendant had his pants down \u201ca little bit.\u201d\nOn cross-examination, Bianca testified that S.W. told her that defendant had bumped up against her with his \u201cprivacy.\u201d According to Bianca, she knew that S.W. was referring to a man\u2019s penis when she used the term \u201cprivacy.\u201d\nPolly W, defendant\u2019s mother, testified that she was present when S.W. was questioned by David Asma, an investigator for the public defender\u2019s office. All she heard S.W. say was that the defendant bumped her. S.W. did not tell Asma that defendant rubbed his \u201cprivacy\u201d against her.\nOn cross-examination, Polly testified that S.W. told Asma that defendant bumped her behind while she was bending over at a dresser looking for some clothes.\nDavid Asma, an investigator with the Lake County public defender\u2019s office, testified that he spoke with S.W. in the presence of her father, David W. S.W. told him that while she was in the basement looking for clothes for school defendant came down and showed her a poster with three women on it. Defendant stood behind her. S.W. denied that defendant had touched her or that he had touched her private parts.\nAsma further testified that David W. told him that he had received a telephone call at work from his children who told him that defendant had tried to mess with S.W. According to David W, S.W. had told him in essence that defendant had exposed himself to her. S.W. never told him that defendant had touched her.\nFollowing closing arguments, the defendant was found guilty of two counts of aggravated criminal sexual abuse and sentenced as stated above. This appeal followed.\nDefendant contends, first, that the admission of S.W.\u2019s out-of-court statement to Officer Henriquez was reversible error. He maintains that the trial court\u2019s ruling that the statement fulfilled the requirements of section 115 \u2014 10 of the Code, without affirmative findings, was inadequate as a matter of law.\nSection 115 \u2014 10 provides in pertinent part as follows:\n\u201c(a) In a prosecution for a sexual act perpetrated upon a child under the age of 13, *** the following evidence shall be admitted as an exception to the hearsay rule:\n* **\n(2) testimony of an out of court statement made by such child describing any complaint of such act or matter or detail pertaining to any act which is an element of an offense which is the subject of a prosecution for a sexual act perpetrated upon a child.\n(b) Such testimony shall only be admitted if:\n(1) The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and\n(2) The child either:\n(A) Testifies at the proceeding; or\n* * *\n(c) If a statement is admitted pursuant to this Section, the court shall instruct the jury that it is for the jury to determine the weight and credibility to be given the statement and that, in making the determination, it shall consider the age and maturity of the child, the nature of the statement, the circumstances under which the statement was made, and any other relevant factor.\u201d (Ill. Rev. Stat. 1989, ch. 38, par. 115 \u2014 10.)\nWe note that the statute itself does not require that the trial court set forth any specific findings or determinations.\nRecently, in People v. Rocha (1989), 191 Ill. App. 3d 529, this court dealt with the issue of the unavailability for purposes of section 115 \u2014 10. In the course of that opinion, however, we also held that, in conducting the hearing to determine the reliability of the victim\u2019s out-of-court statement, the evidence must show a particularized guarantee of trustworthiness. Rocha, 191 Ill. App. 3d at 541.\nEven more recently, in People v. Coleman (1990), 205 Ill. App. 3d 567, the Appellate Court, Fourth District, set forth the test for determining the particularized guarantee of trustworthiness as found in Idaho v. Wright (1990), 497 U.S. 805, 111 L. Ed. 2d 638, 110 S. Ct. 3139. The court stated as follows:\n\u201cThe Court concluded that the \u2018 \u201cparticularized guarantees of trustworthiness\u201d must be shown from the totality of the circumstances, but we think the relevant circumstances include only those that surround the making of the statement and that render the declarant particularly worthy of belief.\u2019 [Citation.] This test is based on the belief that evidence admissible under this exception must be, just as it is for firmly rooted hearsay exceptions, \u2018so trustworthy that adversarial testing would add little to its reliability.\u2019 [Citation.] The Court specifically held that this determination is to be made without the use of other evidence which may corroborate the statement. [Citation.]\nThe Court identified a number of factors which relate to whether hearsay statements made by child witnesses in child sex-abuse cases are reliable. These include spontaneity and consistent repetition, mental state of declarant, use of terminology unexpected of a child of similar age, and lack of motive to fabricate. [Citation.] However, the Court further explained:\n\u2018These factors are, of course, not exclusive, and courts have considerable leeway in their consideration of appropriate factors. We therefore decline to endorse a mechanical test for determining \u201cparticularized guarantees of trustworthiness\u201d under the Clause. Rather, the unifying principle is that these factors relate to whether the child declarant was particularly likely to be telling the truth when the statement was made.\u2019 \u201d Coleman, 205 Ill. App. 3d at 581-82, quoting Wright, 497 U.S. at 822, 111 L. Ed. 2d at 656, 100 S. Ct. at 3150.\nAfter determining, in accordance with Rocha, that the child witness was unavailable, the Coleman court noted that while the trial court had conducted a hearing outside the presence of the jury pursuant to section 115\u201410(b)(l) and had found the statement admissible reciting the statutory language, Wright had now given greater definition to the required hearing and the finding necessary to allow admission of the evidence. The case was remanded, inter alia, for the trial court to conduct a second hearing and make a determination in accordance with Wright.\nWe have a similar situation in the case before us. The trial court conducted the requisite hearing outside the presence of the jury and, reciting the statutory language, determined that S.W.\u2019s statement to Officer Henriquez was admissible. Without more, it is impossible to determine what factors led the trial court to conclude that S.W. was more likely to be telling the truth when she made the statement to Officer Henriquez.\nThe fact S.W. did, in fact, testify in this case does not lessen the need to establish the reliability of her out-of-court statement. According to S.W.\u2019s out-of-court statement to Officer Henriquez, defendant rubbed S.W.\u2019s groin area with his hand. However, S.W. testified only to defendant\u2019s touching her behind. Further, the statute requires the hearing before the out-of-court statement can be introduced whether the victim testifies or is unavailable. (Ill. Rev. Stat. 1989, ch. 38, pars. 115 \u2014 10(b)(l), (2)(A), (2)(B).) We are aware that in People v. Roy (1990), 201 Ill. App. 3d 166, the court determined that the failure to hold the section 115 \u2014 10(b)(l) hearing was not plain error. However, in Roy, the defendant received a bench trial and failed to object to the fact that no such hearing was held.\nThe State cites this court\u2019s opinion in People v. Edwards (1992), 224 Ill. App. 3d 1017, as supportive of the trial court\u2019s determination in this case. In Edwards, the defendant objected to the admission of certain hearsay statements pursuant to section 115 \u2014 10. He argued that the circumstances surrounding the making of the statements failed to show sufficient safeguards of reliability. Unlike the case at bar, the trial court in Edwards gave its reasons for finding the statements reliable. This court reviewed the guidelines set forth in Wright for determining reliability and concluded that the statements met those guidelines. A review of the trial court\u2019s comments satisfied this court that the trial court had carefully considered the reliability issue.\nUnlike the trial court in Edwards, the trial court in the case at bar merely recited the language of the statute in admitting Officer Henriquez\u2019 testimony as to S.W.\u2019s statement to him. There is no indication that the trial court considered the guidelines set forth in Wright for determining the reliability of the hearsay statements in this case. Contrary to the State\u2019s argument, this court\u2019s opinion in Edwards makes it clear that the record must reflect that the safeguards of reliability have been met before such hearsay testimony may be admitted into evidence pursuant to section 115 \u2014 10.\nWe conclude therefore that this cause must be remanded for the purpose of having the trial court state on the record the specific factors which led to its determination that the safeguards of reliability of S.W.\u2019s hearsay statement have been met.\nNext, defendant contends that he was not found guilty beyond a reasonable doubt. Defendant was charged with two counts of aggravated sexual abuse. A person commits aggravated sexual abuse if he was 17 years of age or over and commits an act of sexual conduct with a victim who was under 13 years of age when the act was committed. (Ill. Rev. Stat. 1989, ch. 38, par. 12 \u2014 16(c)(l)(i)-) An act of sexual conduct is defined as any intentional touching or fondling by the victim or the accused, either directly or through clothing, of the sex organs, anus or breast of the victim or the accused or any part of the body of a child under 13 years of age, for the purpose of sexual gratification or arousal of the victim or the accused. (Ill. Rev. Stat. 1989, ch. 38, par. 12 \u2014 12(e).) Defendant here was charged in the indictment with rubbing S.W.\u2019s pubic area with his hand and knowingly rubbing S.W.\u2019s buttocks with his penis.\nDefendant contends that S.W.\u2019s testimony was ambiguous, unclear, required extensive leading questions by the prosecutor and was badly impeached by her prior statements. Defendant concludes that S.W.\u2019s testimony was insufficient as a matter of law to support his conviction.\nThe resolution of factual disputes and the assessment of the credibility of the witnesses are for the trier of fact. (Roy, 201 Ill. App. 3d at 185.) The reviewing court will not reverse a conviction unless the evidence is so unsatisfactory or improbable that a reasonable doubt of defendant\u2019s guilt remains. (201 Ill. App. 3d at 185.) However, in cases involving sex offenses the reviewing court has a special duty to scrutinize closely, the evidence. People v. Nicholl (1991), 210 Ill. App. 3d 1001, 1012.\nBefore the jury, S.W. testified that defendant showed her a \u201cnaked picture,\u201d that he touched her on her behind with his leg which she demonstrated using the dolls and having the pubic area of the male doll rub up against the buttocks area of the female doll. She also testified that defendant exposed \u201cthe area between his legs\u201d to her. On cross-examination, S.W. stated that the prosecutor told her where the places were on the doll that defendant had touched her. She did not remember telling her aunts that defendant had not touched her, but she did tell her Aunt Bianca that defendant had just bumped her. The evidence of defendant\u2019s rubbing S.W.\u2019s pubic area came from the testimony of Officer Henriquez\u2019 testimony as to S.W.\u2019s out-of-court statement to him. While defendant\u2019s sisters testified that S.W. told them that defendant did not touch her, his mother testified that S.W. told David Asma that defendant bumped her.\nThe resolution of this issue revolves around the credibility of the witnesses which is reserved to the trier of fact. (.Nicholl, 210 Ill. App. at 1013.) S.W\u2019s testimony as to being bumped by the defendant was consistent. It was for the jury in this case to determine if S.W.\u2019s out-of-court statement was sufficient to find the defendant guilty of rubbing her pubic area in light of her failure to testify to such incident and the testimony of the other witnesses who stated that S.W. denied that defendant touched her. We cannot say that, when reviewing the evidence in the light most favorable to the State, no rational trier of fact would have found the defendant guilty beyond a reasonable doubt.\nNext, defendant contends that the trial court committed evidentiary errors which require that the defendant receive a new trial. Specifically, defendant argues that the trial court erroneously allowed David W. to testify as to the contents of his son\u2019s conversation with S.W.; that the trial court erroneously permitted the prosecutor to cross-examine Bianca Jones as to what S.W. meant by the term \u201cprivacy\u201d; and that the trial court erred in limiting the defendant\u2019s questioning of Bianca as to S.W.\u2019s proclivity toward exaggeration.\nWe agree with the defendant that David W.\u2019s testimony concerning the content of his telephone conversation with his son was inadmissible hearsay. (See People v. Fuelner (1982), 104 Ill. App. 3d 340 (doctor\u2019s testimony that the victim\u2019s mother told him the victim had been raped held inadmissible hearsay).) In People v. Escobar (1979), 77 Ill. App. 3d 169, a witness testified that he gave a bullet shell to the police because he had been told shells had been found in the defendant\u2019s car. Although the State argued that the testimony was introduced not as hearsay but to explain why the witness brought the shell to the police, the reviewing court concluded that the danger that the jury would misuse the evidence was so much greater than the value of detailing why the witness thought the shells were important that the testimony should have been excluded. Escobar, 77 Ill. App. 3d at 177.\nThe admission of hearsay testimony does not automatically warrant reversal. (People v. White (1985), 134 Ill. App. 3d 262, 283.) The admission of hearsay evidence is harmless error where there is no reasonable probability that the jury would have acquitted the defendant if the hearsay evidence had been excluded. (White, 134 Ill App. 3d at 283.) Prior to the testimony, the jury was instructed that the testimony was not to be considered proof that S.W. had been molested but only as a motivation for David W.\u2019s conduct following the conversation. We are of the opinion that, given the evidence in this case together with the admonition to the jury, the defendant\u2019s conviction in this case was not due to the admission of this particular hearsay testimony.\nDefendant argues that the trial court erred in permitting Bianca Jones to testify as to what S.W. meant when she referred to a \u201cman\u2019s privacy.\u201d In People v. Linkogle (1977), 54 Ill. App. 3d 830, the victim\u2019s mother was permitted to testify that when the victim stated that the defendant had \u201cwiggled his thing,\u201d the victim meant an up and down motion on his penis. The reviewing court determined that the mother\u2019s testimony was reversible error stating as follows:\n\u201cAs a general rule, testimony as to the witness\u2019 opinion is not admissible into evidence. The testimony of the witness must be confined to statements of fact of which the witness has personal knowledge. [Citation.] In some instances, of course, nonexpert opinion evidence is allowed. Nevertheless, a witness may not state his opinion or conclusion concerning an out-of-court statement, but is required to recite the statement as nearly as possible. [Citations.] Even more importantly, where the statement has been made in the presence of the jury, a second witness who testifies to what was meant by the first witness is usurping the function of the jury. It is the province of the jury to make inferences from and interpret the statements of the witnesses, having had an opportunity to hear the testimony and observe the demeanor of each witness. As a result, we believe the trial court committed reversible error by allowing Mrs. Hurlay to testify as to what Beth meant when she testified.\u201d Linkogle, 54 Ill. App. 3d at 833.\nWhile we agree with the defendant that it was error to allow Bianca to testify as to what S.W. meant when she referred to \u201cprivacy,\u201d it is not reversible error under the facts of this case. Prior to Bianca\u2019s testimony, S.W. had already demonstrated using the dolls that defendant had bumped her buttocks with his pubic area. She also testified that defendant exposed his \u201cprivates\u201d to her by which she testified she meant the area between his legs. During the cross-examination of Bianca, the following colloquy took place:\n\u201cQ. And when [S.W.] talks about a man\u2019s privacy, she is referring to his penis; isn\u2019t she?\nA. Yes.\nMR. APPELBAUM (defense counsel): Objection.\nTHE COURT: Sustained.\nBY MR. CHANCEY (prosecutor):\nQ. Well, do you know what she means when she refers to a man\u2019s privacy?\nA. Yes, but I also asked her. Yes.\nQ. She told you that it was his privacy that bumped up?\nA. Yes.\nQ. It was against her backside?\nA. Yes.\nQ. Do you know when she talks about a man\u2019s privacy she is referring to his penis?\nA. Yes.\u201d\nThe record reveals that while the defendant\u2019s initial objection to what S.W. meant by \u201cprivacy\u201d was sustained, defendant failed to object when the question was asked a second time. The preservation of error requires that an objection be made to the complained-of testimony as well as preserving it in a post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 186.) Further, unlike the victim in Linkogle, S.W. had already identified what area of defendant\u2019s body she was referring to both in testimony and by way of demonstration with the dolls. Bianca Jones\u2019 testimony in that regard was mere surplusage.\nFinally, defendant argues that it was error for the trial court to limit his questioning of Bianca Jones as to S.W.\u2019s proclivity for exaggeration. After the trial court sustained the State\u2019s objection, defense counsel did not make an offer of proof and did not attempt to pursue that line of questioning.\nAs we have previously stated, credibility is a key issue in this case. Whether S.W. was prone to exaggerate things, possessed a vivid imagination or even on occasion told lies would be of vital importance to the jury whose duty it was in this case to sort out the truth. (See People v. Morgan (1977), 69 Ill. 2d 200 (defendant\u2019s conviction reversed where victim\u2019s credibility and veracity were seriously brought in question by her teacher\u2019s testimony that the victim had given her a different version of the incident and by indications that the victim had the propensity to fabricate stories).) There being no physical evidence to substantiate defendant\u2019s touching or bumping of S.W., her credibility becomes the main focus even in light of the defendant\u2019s confession. See People v. Lambert (1984), 104 Ill. 2d 375 (defendant\u2019s confession not sufficiently corroborated by independent evidence).\nThe failure of defense counsel to provide an offer of proof does not waive this issue as it would have been clear to the trial court that the testimony sought was to go to S.W.\u2019s credibility. (People v. Christen (1980), 82 Ill. App. 3d 192, 196.) The trial court may have expected defense counsel to rephrase his question, but instead defense counsel abandoned this line of questioning. (Christen, 82 Ill. App. 3d at 196-97.) Given the importance of S.W.\u2019s credibility to the resolution of defendant\u2019s guilt or innocence in this case, we conclude that defendant must receive a new trial.\nNext, defendant contends that he did not receive a fair trial due to certain statements made by the prosecutor during closing argument, specifically that to S.W. touching and bumping were not the same thing; that S.W.\u2019s statements to her aunts and grandmother may have been unconsciously influenced by their concern for the defendant; and the suggestion on rebuttal that David Asma\u2019s testimony concerning the statements of S.W. and Polly W. was influenced by the fact he worked for the public defender\u2019s office.\nA defendant is entitled to a trial free from improper prosecutorial argument, but a conviction will only be reversed if such remarks were material to the conviction and resulted in substantial prejudice (People v. Witted (1979), 79 Ill. App. 3d 156, 165; People v. Franklin (1976), 42 Ill. App. 3d 408, 415), and each case must be decided on its own facts. (People v. Bigsby (1977), 52 Ill. App. 3d 277, 281.) Generally, a prosecutor is allowed great latitude in making a closing argument. (People v. Jordan (1990), 205 Ill. App. 3d 116, 122.) However, a prosecutor may not, inter alia, make arguments not based upon the evidence. (Witted, 79 Ill. App. 3d at 165-66.) The entire context in which a prosecutor offers statements as well as defendant\u2019s closing argument must be considered. People v. Phillips (1989), 127 Ill. 2d 499, 524.\nDefendant failed to object to the portions of the State\u2019s arguments of which he now complains. Therefore, they are waived. (Phillips, 127 Ill. 2d at 526.) Moreover, the jury was instructed that the closing arguments were not evidence. Finally, we are satisfied that the complained-of remarks did not sink to the level of the remarks which caused reversal in the cases relied on by the defendant. People v. Emerson (1983), 97 Ill. 2d 487 (prosecutor\u2019s remarks suggested that defense counsel had created defenses and had suborned perjury); People v. Starks (1983), 116 Ill. App. 3d 384 (prosecutor asserted defense counsel engaged in trickery or misrepresentation to gain an acquittal); People v. Escobar (1979), 77 Ill. App. 3d 169 (prosecutor\u2019s introduction of \u201cnew evidence\u201d during rebuttal portion of closing arguments reversible error).\nWe conclude that the prosecutor\u2019s comments during closing argument did not deprive the defendant of a fair trial.\nFinally, defendant contends that he received ineffective assistance of counsel. Defendant argues that defense counsel did not offer evidence at trial of the circumstances of defendant\u2019s confession; that he failed to make an offer of proof during Bianca Jones\u2019 testimony; failed to object to the prosecutor\u2019s improper comments during closing arguments; and that his cross-examination of David W. led to the introduction of S.W.\u2019s hearsay statement that defendant had exposed himself and rubbed up against her behind.\nWe have previously determined that defense counsel\u2019s failure to make an offer of proof did not waive the issue as to Bianca Jones\u2019 testimony. Despite defense counsel\u2019s failure to object, we reviewed the complained-of statements made during closing argument and concluded that they did not deprive the defendant of a fair trial.\nDefendant did not testify at trial thus rendering impossible any effort to show the circumstances of his confession from his point of view. The trial court denied defendant\u2019s motion to suppress the confession because he found Officer Henriquez\u2019 testimony more credible than that of the defendant. Defense counsel did cross-examine Officer Henriquez at trial which revealed that Henriquez did not tape-record or videotape the confession; that he, not the defendant, wrote out the statement which defendant signed; and that his case against the defendant would be better if he had an inculpatory statement from the defendant. Moreover, there is a strong presumption that the challenged actions of trial counsel were the product of sound trial strategy and not incompetence. (People v. Steidl (1991), 142 Ill. 2d 204, 241.) The recounting of the circumstances of the defendant\u2019s confession would only serve to remind the jury that defendant had confessed, and defense counsel\u2019s choice not to bring up defendant\u2019s confession is certainly defensible as trial strategy. Finally, while defense counsel\u2019s cross-examination of David W. did elicit that S.W. told him that defendant bumped her, that evidence was testified to by defense witnesses, as well as by the State\u2019s witnesses. Therefore, we are of the opinion that none of these alleged instances of incompetency or their cumulative effect led to the defendant\u2019s conviction. People v. Albanese (1984), 104 Ill. 2d 504, 525.\nIn light of the conclusions we reach in this case, defendant\u2019s conviction is reversed, and this cause is remanded for a new trial. In the event the State wishes again to introduce S.W.\u2019s hearsay statement to Officer Henriquez, a new hearing under section 115 \u2014 10 need not be held. However, as we previously stated above, the trial court shall state on the record the specific factors which led to its determination that the safeguards of reliability of S.W.\u2019s hearsay statement have been met.\nThe judgment of the circuit court is reversed, and the cause is remanded with directions.\nReversed and remanded with directions.\nMcLAREN, J., concurs.", "type": "majority", "author": "JUDGE WOODWARD" }, { "text": "JUSTICE DUNN,\ndissenting:\nI respectfully dissent because I disagree with the majority\u2019s resolution of two issues. First of all, I believe that, by failing to make an offer of proof, defendant waived the issue of whether the trial court erred by sustaining the State\u2019s objection when defense counsel asked Bianca Jones if she had ever known S.W. to exaggerate the truth to her.\nIn general, an offer of proof must be made in order to preserve the issue of wrongful exclusion of evidence for review. (People v. Cobb (1989), 186 Ill. App. 3d 898, 905.) If the testimony to be elicited is obviously relevant and material, no offer of proof is required. (Cobb, 186 Ill. App. 3d at 905.) A detailed and specific offer of proof is required, however, if it is not clear what the testimony of the witness will be or what basis the witness will have for so testifying. 186 Ill. App. 3d at 905.\nIn Cobb, this court held that, because the defendant failed to make a specific, detailed offer of proof, he waived the issue of whether the trial court erred by excluding a police officer\u2019s testimony as to a certain matter. (186 Ill. App. 3d at 905-06.) In so holding, this court noted that it could not determine from the record exactly what the substance of the officer\u2019s testimony would have been or the basis of that testimony. (186 Ill. App. 3d at 905.) We further stated that it was conceivable that the officer\u2019s testimony could have been based on what others had told him and would have therefore been inadmissible hearsay. (186 Ill. App. 3d at 905-06.) It was thus impossible to determine from the record whether the exclusion of the testimony constituted reversible error. 186 Ill. App. 3d at 906.\nThe same is true in the case at bar. This court has no way of knowing how Bianca Jones would have responded to the question at issue here. Thus, it is impossible to determine whether defendant was prejudiced by the trial court\u2019s ruling. (See People v. Moreno (1983), 116 Ill. App. 3d 1, 6.) It is also possible, as it was in Cobb, that the basis for the testimony could have been a conversation with another person. Jones may have testified that S.W. told her something and she found out from someone else that it was not true. This would have constituted inadmissible hearsay. Because defendant\u2019s failure to make an offer of proof makes it impossible to determine whether reversible error occurred, I would hold that he has waived the issue of whether the trial court erred by sustaining the objection to the question his attorney asked Bianca Jones.\nI also disagree with the majority\u2019s conclusion that a remand is necessary for the purpose of having the trial court articulate specific factors which led to its conclusion that S.W.\u2019s hearsay statement to Officer Henriquez should be admitted into evidence under section 115 \u2014 10 of the Code (Ill. Rev. Stat. 1991, ch. 38, par. 115 \u2014 10). Under section 115 \u2014 10(b)(l), such a statement is admissible if the trial court \u201cfinds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability.\u201d (Ill. Rev. Stat. 1991, ch. 38, par. 115\u2014 10(b)(l).) The trial court did make such a finding in this case. The statute does not require trial judges to articulate specific reasons in support of such findings.\nThe majority concludes that a remand is necessary to ensure that the trial court\u2019s admission of S.W.\u2019s hearsay statement was consistent with the United States Supreme Court\u2019s opinion in Idaho v. Wright (1990), 497 U.S. 805, 111 L. Ed. 2d 638, 110 S. Ct. 3139, which was issued after the trial in this case. The standard in section 115 \u2014 10, which requires \u201csufficient safeguards of reliability\u201d based upon the \u201ctime, content, and circumstances of the statement,\u201d is in my view effectively the same as the Wright standard of \u201cparticularized guarantees of trustworthiness\u201d based solely upon the circumstances surrounding the statement (Wright, 497 U.S. at 822, 111 L. Ed. 2d at 656, 110 S. Ct. at 3149). Section 115 \u2014 10, like the court\u2019s opinion in Wright, requires trial courts to focus solely upon the circumstances surrounding the statement and to determine whether those circumstances make it particularly likely that the declarant was telling the truth when she made the statement. Because the Illinois standard applied here was essentially the same as the one set forth in Wright, I do not believe it is necessary to remand the case in order to ensure compliance with Wright.\nA trial court\u2019s finding after a section 115 \u2014 10(b)(l) hearing should only be overturned on appeal if it was contrary to the manifest weight of the evidence. (People v. Deavers (1991), 220 Ill. App. 3d 1057, 1068.) In the case at bar, S.W. had no motive to fabricate, and she did not use terminology that would be unexpected of a child her age. (See Wright, 497 U.S. at 821-22, 111 L. Ed. 2d at 656, 110 S. Ct. at 3150.) Furthermore, although Officer Henriquez did question S.W., he testified that the questions were open-ended rather than leading. (See People v. Edwards (1992), 224 Ill. App. 3d 1017, 1029.) Finally, the statement was made only a few hours after the alleged incident. In light of these factors, the trial court\u2019s decision to admit testimony about the statement was not against the manifest weight of the evidence and should have been affirmed.\nFor the above reasons, I would affirm defendant\u2019s conviction. I, therefore, respectfully dissent.", "type": "dissent", "author": "JUSTICE DUNN," } ], "attorneys": [ "G. Joseph Weller, of State Appellate Defender\u2019s Office, of Elgin, and Marilyn Martin, of Chicago, for appellant.", "Michael J. Waller, State\u2019s Attorney, of Waukegan, and Kevin B. McCarthy, of Springfield (William L. Browers and John X. Breslin, both 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. THOMAS WEST, Defendant-Appellant.\nSecond District\nNo. 2\u201490\u20140121\nOpinion filed August 19, 1992.\nRehearing denied October 22,1992.\nDUNN, J., dissenting.\nG. Joseph Weller, of State Appellate Defender\u2019s Office, of Elgin, and Marilyn Martin, of Chicago, for appellant.\nMichael J. Waller, State\u2019s Attorney, of Waukegan, and Kevin B. McCarthy, of Springfield (William L. Browers and John X. Breslin, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0578-01", "first_page_order": 598, "last_page_order": 616 }