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CHESTER NOVAK, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE DiVITO\ndelivered the opinion of the court:\nA jury convicted defendant Chester Novak of aggravated criminal sexual assault. In this appeal, he raises a number of challenges to the propriety of his conviction: (1) whether section 115 \u2014 10(c) of the Code of Criminal Procedure of 1963 (111. Rev. Stat. 1989, ch. 38, par. 115 \u2014 10(c)) violates the separation of powers provision in the Illinois Constitution; (2) whether the circuit court coerced the jury into its verdict by remarking \u201cit\u2019s still early\u201d to two jury notes indicating deadlock and by delaying in its response to a third note; (3) whether the circuit court abused its discretion in denying defendant\u2019s challenge to two members of the Venire for cause; (4) whether the circuit court abused its discretion in denying defendant\u2019s motion in limine to bar the State from introducing evidence of alleged acts of sexual misconduct with other children; (5) whether the circuit court abused its discretion in refusing defendant\u2019s tendered instructions on the charge of aggravated criminal sexual abuse and on the definition of sexual conduct; (6) whether the circuit court abused its discretion in permitting lay witnesses to give opinion testimony in rebuttal; and (7) whether the circuit court erred in giving certain jury instructions. For the reasons that follow, we affirm defendant\u2019s conviction.\nIn November 1989, Illinois State Police Officer Kevin Shaughnessy interviewed J.R.H., then 10 years old, who described defendant\u2019s conduct with him from July 1988 through July 1989. Following this interview, defendant was arrested and charged by indictment with one count of aggravated criminal sexual assault, in violation of section 12 \u2014 14(bXl) of the Criminal Code of 1961 (El. Rev. Stat. 1989, ch. 38, par. 12 \u2014 14(bXl)).\nPrior to trial, defendant filed a motion to exclude testimony of incidents with four other boys on the grounds that (1) the evidence was not relevant, serving only to establish a propensity to commit similar acts; (2) defendant had not been convicted of anything, so this was not \u201cother crimes\u201d evidence, nor did it fall within the exceptions to the general bar against such evidence; and (3) any probative value from the testimony was outweighed by the potential prejudice. He also asked that the statute mandating a particular jury instruction* 2(El. Rev. Stat. 1989, ch. 38, par. 115 \u2014 10(c)) be declared unconstitutional because the circuit court, not the legislature, should decide how to instruct a jury. The court replied:\n\u201cThe Court sees no problem with 115 \u2014 10(c). I think any time we look at a section you have to look at the entire section. In this case, the entire section of C where it says that the Jury is instructed that in making a determination it should consider the age, maturity of the child, nature of the statement, circumstances under which the statement was made and any other relevant factors, in the Court\u2019s opinion I don\u2019t see any problems with it.\u201d\nAlternatively, defendant requested a hearing on the admissibility of J.R.H.\u2019s out-of-court statements, pursuant to section 115 \u2014 10(b). The court denied all his motions other than the one for the hearing. After that hearing, the court held that the evidence could be admitted because it found sufficient safeguards of reliability.\nDuring voir dire, which the court conducted, one of the venire members was Raymond Maid. After the usual questions, the following colloquy occurred:\n\u201cTHE COURT: And can you promise and pledge to all parties to follow the instructions that I would give in this case concerning the law of Illinois as it would apply to the case even if you were to disagree with me as to what the law should be?\nA. I have moral problems with some of that.\nTHE COURT: To what extent, sir?\nA. Well, I don\u2019t know what the instructions would be, and I know what the case is, and I have moral feelings about the case, itself.\nTHE COURT: Let me ask you this: Do you feel in any way once the charge was read that you had prejudged the case in any way?\nA. Well, I wouldn\u2019t say that, but I just don\u2019t \u2014 the whole concept is anger to my thinking.\nTHE COURT: Let me ask something, I had asked you previously, is there any thing about the nature of the charge before the court that in any way preliminarily disturbs you to the extent you feel you couldn\u2019t give both sides a fair and impartial trial?\nA. Yes.\nTHE COURT: And my recall is that your response to that is no?\nA. I\u2019m afraid I didn\u2019t understand the question.\nTHE COURT: Well, let me take this \u2014 First of all, do you\nfeel in any way you\u2019ve prejudged the case?\n* * *\nA. I wouldn\u2019t say I prejudged it, but as I mentioned, the\nconcept, I\u2019m not too pleased about that.\n* * *\nTHE COURT: And based on any question that I\u2019ve asked you or something that perhaps I haven\u2019t even brought up, do you know of any reason you can\u2019t give both sides a fair and impartial trial by jury, sir?\nA. Well, no, other than I have strong feelings of [sic] the matter. Outside of that, no.\nTHE COURT: Let me ask you, your moral feelings reference wrongdoing or whatever it might be, has it in your opinion at this point brought you to a situation where you feel in any way you can\u2019t give both sides a fair and impartial trial or you have in any way prejudged the defendant?\nA. I don\u2019t believe I prejudged him, no, but the whole concept is very unsavory to me.\u201d\nAnother venire member, Richard Barich, also was subject to the court\u2019s voir dire, at which the following questions were asked and answered:\n\u201cTHE COURT: And, sir, is there anything about the nature of the charge before the Court that in any way preliminarily disturbs you to the extent you feel you couldn\u2019t be fair and impartial to both sides?\nA. Yes.\nTHE COURT: Nature of that if you would expand on it?\nA. I guess I just have a dislike for homosexuality, things of that nature.\nTHE COURT: Let me ask you this: When I read the charges [sic] yesterday, did you in any way at that time feel that you had prejudged the case?\nA. No.\nTHE COURT: When I read the charge and you had that reaction, would it be fair to say that you[r] reaction was [\u2018]if I were to sit as a juror, I would prefer to sit on a different type of case than one of this type,[\u2019] would that be a fair statement?\nA. Yes.\n* * *\nTHE COURT: And as I defined patience, and I took it step by step, almost as an outline of how a juror would or is expected to listen before making any final decision, do you have any problems seeing yourself in that role as a juror and exercising such patience before reaching a final decision in this case?\nA. Maybe my discontent for the situation would sway my opinion of the charges.\nTHE COURT: You feel your opinions, whatever they are, have caused you to in any [way to] prejudged [sic] this case?\nA. Possibly.\n* * *\nTHE COURT: Based on anything that\u2019s been discussed, questions that have been asked, do you know of any reason you can\u2019t give both sides a fair and impartial trial by jury as you sit here right now, sir?\nA. I may not be able to\u2014\nTHE COURT: Other than the expressed reservations that you had about the nature of the charge?\nA. Yes.\nTHE COURT: Any other reason?\nA. No.\u201d\nDefendant asked that each of these two jurors be excused for cause. The court refused. It stated that \u201cin the Court\u2019s opinion, based on the questioning, I don\u2019t see any situation that Mr. Maid, based on the questions that ha[ve] developed in response, the Court\u2019s observations, that he should be excused for cause.\u201d As for defendant\u2019s challenge to Mr. Barich, the court commented, \u201cCourt notes that Mr. Barich\u2019s a relatively young man, 25, as I see it, note some nervousness, which is not an unusual situation in jury selection. It is somewhat obvious to the Court that Mr. Barich wishes he was someplace else ***. But Court feels that in the questioning as they were developed, the honest responses of Mr. Barich, one\u2019s set out are such that the standards at this point have, in fact, been met ***.\u201d The court later granted defendant\u2019s request that the two be excused, apparently as an exercise of his peremptory challenges.\nAt trial, J.R.H. testified first. Defendant coached J.R.H.\u2019s brother\u2019s baseball team, and the boy first met defendant in July 1988 when his brother was at a practice. He next saw defendant at a celebration for his brother\u2019s team in September 1988. A few days later, defendant called J.R.H. and asked if he wanted to improve his baseball skills. He agreed, and his mother gave her permission. Defendant then picked up J.R.H. and took him to his \u201cclubhouse,\u201d a separate building at his parents\u2019 home that contained a bathroom, kitchen, and at least one other room. After watching television for a while, defendant asked J.R.H. if he wanted to \u201cget better at baseball\u201d and \u201cstrengthen [his] neck.\u201d When J.R.H. shrugged his shoulders in reply, defendant \u201cchoked\u201d him for a few minutes, that is, defendant \u201cput his hand around [J.R.H.\u2019s] neck and pushed up.\u201d The two then played on defendant\u2019s computer for approximately 30 minutes, after which defendant took the boy home.\nShortly thereafter, defendant called again, and the events were substantially similar. While defendant had his hands around J.R.H.\u2019s neck, the latter said \u201cStop, stop, please\u201d; defendant replied \u201cjust a couple more seconds.\u201d Another time, J.R.H. went to a baseball diamond and played with defendant and another child. On yet another occasion, defendant took J.R.H. to the \u201cclubhouse,\u201d but all they did was watch television. Later, defendant coached J.R.H.\u2019s brother\u2019s basketball team, and J.R.H. often attended as well.\nIn the spring of 1989, defendant again called and picked up J.R.H. to go to the \u201cclubhouse.\u201d After the boy watched television for a while, defendant asked again if he would like to improve his baseball skills. Receiving no reply, defendant blindfolded J.R.H. and tied his hands behind his back. Defendant put a bicycle grip into the boy\u2019s mouth, asking him to bite on it \u201cto see how far [his] mouth could go.\u201d After taking the bike handle out of the boy\u2019s mouth, defendant put in \u201csomething softer,\u201d by itself at first and then with chocolate on it. Defendant removed the object from the boy\u2019s mouth and a few minutes later took off the blindfold; J.R.H. played with the computer and watched television. He tried to find the soft object, but defendant said it had broken so he threw it away.\nA short time later, defendant contacted the boy to again \u201ctest him for baseball.\u201d The events were similar to those described above. This occurred twice more. The second time, defendant again tied the boy\u2019s hands behind his back and blindfolded him. Defendant positioned the boy on his side on a platform three feet high, untied his hands, and then lay down next to him. Defendant asked the boy to hug him, which he did, and then defendant began \u201cchoking\u201d him while rubbing against him, sweating and breathing heavy, for a couple of minutes. Defendant stopped shortly after J.R.H. asked him to; he removed the blindfold and took the boy off the platform. The boy then watched television and went home. He did not tell his mother \u201cbecause [he] didn\u2019t think it was wrong what [defendant] did.\u201d On the next occasion at the \u201cclubhouse,\u201d in July 1989, the boy was watching television with defendant when the latter began \u201cchoking\u201d him while rubbing his body against the boy and breathing heavily.\nThen, on a Friday in mid- or late July, defendant called to ask J.R.H. to sleep overnight. Defendant picked him up and when they arrived at the \u201cclubhouse,\u201d they went into the main house for something to eat, and J.R.H. met defendant\u2019s parents. After watching television, the two went to bed on \u201csort of like a couch, a fold-up couch\u201d about a foot off the floor. In the morning, defendant again asked J.R.H. if he wanted to strengthen his neck and began \u201cchoking\u201d him even though the boy said no. At the same time defendant rubbed his body against the boy\u2019s from the waist down, sweating and breathing heavily, but he stopped when the boy asked him to.\nDefendant also asked J.R.H. to stay over the next Friday night. The events that night were similar, but in the morning, when J.R.H. returned from the bathroom, he noticed that defendant had moved toward where the boy had been sleeping. The boy slept a while longer, and when he awoke, defendant asked \u201cwould you like a dollar thing or a five dollar thing.\u201d Although not knowing what defendant meant, the boy replied \u201cthe five dollar thing.\u201d When defendant asked the boy if he was sure, he replied he was. Defendant then tied J.R.H.\u2019s hands behind his back, blindfolded him, laid him on the bed on the floor, lay down next to him, and instructed the boy to move down while he moved up, so that the boy\u2019s head was at defendant\u2019s waist. Defendant \u201cstarted rubbing something rough on [J.R.H.\u2019s] cheeks,\u201d and then defendant pulled down his pants and put his penis in the boy\u2019s mouth. After a minute, the boy began crying and told defendant to remove his penis. Defendant said \u201cwait a minute,\u201d pulled up his pants, and then removed the blindfold and rope. When defendant asked J.R.H. if he was going to tell anyone, the boy replied \u201cmaybe.\u201d Defendant also asked if J.R.H. was mad at him, to which he replied \u201cyes.\u201d Defendant then told him he too had been molested. Defendant and J.R.H. went to the baseball field to prepare for a game; when J.R.H. saw his mother shortly thereafter, he did not tell her what had happened because he \u201cwas embarrassed and afraid.\u201d Defendant never called him again.\nJ.R.H.\u2019s mother testified next. She met defendant in July 1988 when her other son was asked to play on defendant\u2019s baseball team. At the end of the summer, defendant asked her if he could interview J.R.H. for \u201ca master\u2019s paper he was writing on baseball and young people.\u201d Defendant called four or five times to ask if one of the boys was available to come over \u201cto do a little bit more research\u201d; he would then pick the boy up and return him four or five hours later. Ms. H. described J.R.H.\u2019s relationship with defendant as \u201cbeautiful, I mean, it was just the greatest, I couldn\u2019t believe it, he told me once he loved him\u201d and \u201cjust like a father and a son, they were close friends.\u201d The boy always hugged him, and they even had a special handshake. J.R.H.\u2019s brother also played basketball on a team for defendant, but after the season ended, Ms. H. did not see defendant until the spring of 1989, when he called to ask if the older boy could join a baseball team. J.R.H. then went to defendant\u2019s house \u201cabout nine or ten times\u201d for about four hours each time, to practice baseball and \u201chang around.\u201d Toward the end of July 1989, defendant asked if J.R.H. could stay overnight one Friday night; Ms. H. agreed, and she picked him up at a game the next morning. The next Friday, defendant again asked if the boy could stay over that night; Ms. H. again agreed and again picked him up at a game the next morning at about 9 a.m. She never heard from defendant again.\nA few days later, Ms. H. learned of defendant\u2019s arrest and asked her children if he had ever touched them; they said no. In October, after a call from the Illinois State Police, she again asked J.R.H. if defendant had touched him, but she did not believe his denial. When she pressed him, he admitted it and began to cry.\nJ.M., a 14-year-old, testified next. In June 1989, he was playing on a baseball team coached by defendant, who offered to help him work on his throwing ability. After a noon game, defendant took him to the \u201cclubhouse\u201d and took measurements. After looking at baseball items, defendant told him to lie down on the floor on his side. Defendant then blindfolded J.M., saying that it was to prevent distraction by the light, and began pulling on his throwing arm. He then told the boy to lie on his stomach and \u201cconnected\u201d and \u201cunconnected\u201d the boy\u2019s hands (not tying them), apparently behind him, and lay on top of the boy. For about five minutes, defendant was breathing heavily and moving up and down; J.M. could feel something hard hitting him, which he later said was defendant\u2019s penis. Defendant then put one hand under J.M.\u2019s stomach and touched the boy\u2019s penis while moving up and down. When J.M. asked defendant to stop, defendant replied \u201cbe quiet,\u201d ceasing only when the phone rang. Afterward, J.M.\u2019s father called and wanted the boy home. En route, defendant told J.M., \u201cyou can\u2019t tell nobody what happened or else.\u201d Defendant called J.M. at least three times daily thereafter, but J.M. refused to go to defendant\u2019s house again. J.M. did not tell anyone about the incident because. he was \u201cscared and embarrassed and [he] thought [his] dad would go over there and try to kill [defendant].\u201d\nR.N., a 15-year-old, also testified. He too played on defendant\u2019s baseball team in 1989, and he too was asked if he wanted to undertake a program to strengthen his throwing arm. His parents would not allow him to participate, however, until the school year ended. When R.N. went to defendant\u2019s \u201coffice,\u201d defendant took his measurements and had him lie on the floor. At first, he put pressure on R.N.\u2019s neck for only a few minutes. On the way home, defendant told him not to tell his parents what had happened because they would try to interfere with the training. At a later visit, defendant told him not to tell the other team members about the program because they might be jealous. Defendant also said R.N. needed to strengthen his neck and would have to wear a blindfold to allow him to relax and not see lights. The blindfold was covered with a sock and held in place with a rubber band, as was the sock used to tie R.N.\u2019s hands; defendant said that this was done so as not to leave marks. Defendant had R.N. lie on the floor, but then leaned him against a high table and put pressure around the boy\u2019s neck, pushing down with his hands and some sort of cord, while defendant leaned against him with his lower body. While this occurred, defendant was breathing heavily and when finished, he was sweating. Afterward, R.N. and defendant talked about the training and the other team members. This occurred three or four times a week, from the beginning of June until mid-August. R.N. never saw a bed, couch or mattress, nor did defendant ever touch R.N.\u2019s genitals or buttocks. R.N. did not speak with his parents about what happened until mid-August, when he read about defendant in the newspaper.\nD.R, a 14-year-old, was the last child to testify. He joined defendant\u2019s team in May 1989. Defendant told him about a program to strengthen his arm and told him to ask his parents if he could participate. Twice a week during the season, defendant took D.P. to his \u201coffice.\u201d Defendant showed him pictures of men lying on benches, blindfolded, with other men with hands around their necks, telling D.P. that he would perform this type of exercise. Nothing unusual occurred during the first visit, other than measuring D.P. and putting the data into the computer. On the second visit, however, defendant told D.P. to lie back against the table and he put his hands around D.P.\u2019s neck, pressing hard. Each visit lasted approximately an hour, 30 minutes of which was spent on the training program. On later occasions, defendant blindfolded D.P. (with a headband and a sock) and tied his hands behind his back (with a sock and a rope); occasionally, defendant had him sit in a chair. Defendant\u2019s \u201cprivate parts\u201d were touching him, and his leg was rubbing against the boy during this time. D.P. did not tell his parents because defendant told D.P. not to tell anyone, for the program was an adult one and if he revealed it, defendant would not be able to coach and D.P. would not be able to play baseball. Defendant did not touch D.P. except for the exercises, nor did defendant ask him to lie on the floor.\nAfter his motion for a directed verdict was denied, defendant opened his case with testimony by Michele Smith. She and her family were on vacation at a campground in Michigan during the week before Friday, July 28, 1989, and she remembered that defendant\u2019s mother was vacationing there that same week.\nDefendant\u2019s father testified next, saying that on the morning of July 22, 1989, he and his wife had bought some items in a general store near the Michigan campground, and had a time- and date-stamped receipt showing his purchases. He left the next day, but his wife stayed on. His wife called twice from Michigan on the evening of July 28, at 7 and 9 p.m., as indicated by the phone bill. The only noise he heard that evening was sometime after 10 p.m., when he saw his son and a friend, Mark, and their cars. Mostly, his son slept in his parents\u2019 house, staying overnight in the \u201coffice\u201d only once or twice a week since he had become active in baseball five years earlier. Mr. Novak never saw any young boys there.\nMark Wojciechowski also testified; he had known defendant for 14 years and in 1989, helped him coach baseball. Occasionally he and defendant slept in the office, either on the floor, the desk, or a chair; there was no bed, mattress or couch. In June and July 1989, they slept there approximately 10 times on Friday or Saturday nights, including the nights of Friday, July 21, and Friday, July 28. Although he never saw defendant put blindfolds on his players, tie their hands, or choke them in the course of exercising them, he recalled that defendant talked about using blindfolds on them in connection with batting.\nDefendant also testified. He had a variety of jobs prior to 1989, when he was writing for his own mail order business about coaching baseball. In 1989, he also coached four regular and four tournament teams, spending about 80 hours a week. He also admitted that he was not working on a master\u2019s thesis in the fall of 1988.\nOn July 29, 1989, defendant had a game in Downers Grove; J.R.H. was not at defendant\u2019s home the evening before the game, nor was he there the weekend before that. In fact, J.R.H. never had been there overnight. D.P. and R.N. came to his home for a strengthening program that utilized neck exercises from a publication called the Young Athletes Manual, which he told the boys would benefit their throwing; the exercises would also improve their hitting and reduce injuries. He denied instructing the boys not to tell their parents, stating that he told them not to perform the exercises with anyone else because someone niight be injured and he would be held responsible. He used blindfolds in the program to direct the athletes toward movements and internal feelings to improve their skills, as an article by another coach suggested. The first step in the program was to measure a boy\u2019s muscles and get other basic information, after which defendant would compare the information with that of other boys. Defendant then would work on flexibility of the boy\u2019s neck and shoulders, with the boy\u2019s hands behind his back, which he did with R.N., D.P., and J.R.H., but not J.M. In certain exercises, with the neck extended backwards, a boy might arch his back, bringing his waist forward and causing contact between the boy and defendant; this might also cause difficulty breathing or swallowing. The purpose of the neck exercises was \u201cto create a leverage for the shoulder which is the power base of throwing or both shoulders for the power base of hitting.\u201d He denied tying the boys up, saying that he restricted their movements with the sock in order to prevent them from using their hands to push off an object.\nDefendant had used the building as his office since 1984 or 1985. J.R.H. was there with him alone only once, in the spring of 1989. J.R.H. was at the main house with him alone in the winter of 1989, but he also had been to defendant\u2019s office with other boys. D.P. was there between 6 and 10 times in the summer of 1989; R.N. was there about the same number of times, and J.M. was never there.\nMaster Sergeant Kevin Shaughnessy of the Illinois State Police testified next. He interviewed J.R.H. on November 6, 1989, at which time the boy said that he had stayed overnight at defendant\u2019s \u201cclubhouse\u201d and slept in a bed with him in July 1989; J.R.H. had told him nothing about the bicycle grip, but Shaughnessy said that it was not unusual for young victims of sexual abuse to omit something when he first interviews them.\nIn rebuttal, the State called Tom Milanovich and Mike Lenti, not as experts in strength training and exercising but as lay people familiar with the field. Defendant objected, but the court allowed them to testify. Milanovich had played professional football in the late \u201970\u2019s and early \u201980\u2019s. He also had played baseball, but only in high school; he never had coached baseball. In 1979, he opened a gym for \u201cserious training clientele\u201d rather than health club habitues, and had been a personal trainer for a few professional baseball players. In his experience, training 10- to 13-year-olds would not include blindfolds, tying their hands behind their backs, or putting pressure on their necks. Furthermore, neck resistance exercises were used for contact sports, not for arm strengthening because the strength of the neck muscles is unrelated to throwing a baseball. Blindfolding too had nothing to do with arm strengthening. He preferred to include parents in training youngsters, not to exclude them.\nLenti played professional baseball for 21/z years and semi-pro baseball for nine years, continuing to play at the time of the trial and coaching a women\u2019s softball team as well as serving as assistant athletic director at DePaul University. The muscles used in throwing are those in the arm, back, shoulders, chest, and legs, he observed, stating that \u201cthere is no benefit to having an absolute strong neck in baseball\u201d and that too strong or overdeveloped a neck would be \u201ca hinderance more than a help.\u201d He never saw anyone train people by using blindfolds or tying their arms behind them. Although not a trainer, in his job at DePaul, he, like Milanovich, trains children occasionally, but he never worked on their necks or advised parents not to attend. He disagreed with the article by the Iowa baseball coach about the advantages of blindfolding. He also described the neck exercises at issue as isometric ones for strength, which is not needed for baseball, rather than for flexibility, which is needed. He conceded that although he did not tell his young trainees not to talk to their parents about the training, he would not tell the youngsters to instruct their parents on the exercises if the parents were not in attendance.\nAt the jury instruction conference, defendant objected to a number of the State\u2019s proffered instructions, including Illinois Pattern Jury Instructions, Criminal, Nos. 3.14 and 11.67 (2d ed. 1981) (hereinafter, IPI Criminal 2d), both of which he had addressed in his pretrial motions. His objections were overruled without comment, other than that the objections were preserved. Defendant tendered only two jury instructions: aggravated criminal sexual abuse and the definition of sexual conduct, on the ground that the evidence supported an instruction on a lesser included offense. The State argued that there was no evidence to support a verdict on the other offense, so that if the jury did not believe J.R.H., the only possible verdict was not guilty. Defendant replied that the jury could believe some but not all of J.R.H.\u2019s testimony. If, for example, it believed that no penetration had occurred, it could find him guilty of sexual abuse rather than sexual assault. The court refused the instructions.\nThe jury retired around 2:30 p.m. Just after 5 p.m., the jury sent out a note. It is not in the common law record, but the court described it as follows: \u201cFirst line with a dot says \u2018Testimony of J.R.[H.]\u2019 Second dot says, \u2018What was Novak arrested for?\u2019 Third dot, \u2018Testimony of Novak.\u2019 \u201d After a brief discussion, the court sent its own note: \u201cPlease continue to use your collective memory. The entire trial transcript of these individuals is not immediately available. Number two, there is no evidence concerning what Mr. Novak was arrested for that you should consider. *** Please continue to deliberate.\u201d\nAn hour later, the jury sent another note. Signed by all the jurors, it stated: \u201cWe, the jury, are hung. (Eight jurors vote guilty, two vote not guilty, two are undecided.).\u201d Defense counsel, observing that the jury had been deliberating for four hours, stated: \u201cI ask that their judgment be upheld[.] They are hung.\u201d The State replied that \u201cthis is nothing more than the natural progression of the jury deliberations. They have been out a long time. I think that they should be required to deliberate a lot longer.\u201d The court commented, \u201cIn the Court\u2019s opinion, it is quite early. We haven\u2019t even come anywhere close to where the Court would be receiving any Prim instructions, not having received any other notes or efforts of direction to the jury.\u201d The court then sent the jury its reply: \u201cIt is still quite early. [Pjlease continue in your deliberations, signed Judge Foxgrover.\u201d Defense counsel commented: \u201cI simply want to say, for the record, I ask that they be Primmed. I ask they simply be told, if there is no other note, for them to continue to deliberate. There is no need to tell them it\u2019s early, and it\u2019s too early in the process.\u201d The court noted the objection.\nTwo hours later, at 8:15 p.m., the jury sent out yet another note, which read: \u201cJudge Foxgrover, the jurors will not change their mind[s]. The jury is still hung. It doesn\u2019t matter how much time is given, for our own personal differences and beliefs and stubbornness we cannot come to a unanimous decision.\u201d The State asked for the Prim instruction; defense counsel requested again that the jury be given the instructions on the lesser included offense and the definition of sexual conduct. The court again refused defense counsel\u2019s suggestion but agreed to read without comment the Prim instruction. The court also remarked that \u201c[n]o specific questions have been sent out by the jury for reference on any particular points, requests for transcripts, other than they-send-us-the-whole-transcript type of situation, which I thought was relatively premature, as we discussed earlier.\u201d Defense counsel repeated his suggestion that the jury\u2019s deadlock be honored.\nCommenting \u201cIt\u2019s still quite early, folks,\u201d the court read the instruction twice. After the jury retired once again at 8:32 p.m., defense counsel again objected to the court\u2019s remark that it was still early, which in his opinion implied that the jury was obliged to reach a verdict. At 10:45 p.m., the court read another note sent out by the jury: \u201cJudge Fox-grover, the jury still cannot reach a unanimous decision. The temperament of the jurors are [sic] violent to individual judgment. The opinions of our jurors will not be changed. 11 vote guilty, 1 vote not guilty. *** The testimony of J.R.[H.] might be beneficial if we can hear it over.\u201d The court decided to sequester the jury for the night and arrange for the court reporter to provide the requested testimony the next morning.\nNine minutes later, while the court and the attorneys were discussing the matter, the jury indicated it had reached a verdict. Defense counsel stated his objection that \u201cthe note should have been honored instantaneously,\u201d but the court demurred, stating that it had to call counsel and arrange sequestration, talk with them, and then make arrangements with the court reporter. The jury found defendant guilty of the single charged crime.\nIn his motion for a new trial, defendant raised the same challenges he brings here, among others. The court denied the motion.\nI\nDefendant\u2019s first issue on appeal is a challenge to the constitutionality of section 115 \u2014 10(c) of the Code of Criminal Procedure of 1963 (HI. Rev. Stat. 1989, eh. 38, par. 115 \u2014 10(c)). Defendant claims that with this statute, the legislature usurps the authority of the judiciary by mandating that the circuit court instruct the jury a certain way. He insists that the Hlinois Constitution provides that only the judiciary can exercise judicial power (HI. Const. 1970, arts. VI, II (judicial power is vested in the courts, and \u201c[n]o branch shall exercise powers properly belonging to another\u201d)), and under Supreme Court Rule 451 (134 111. 2d R. 451), only the circuit court has the power to decide how a jury should be instructed. Therefore, he reasons, to enact a statute mandating use of a particular jury instruction is an improper exercise of judicial power by the legislature.\nOur analysis begins with the presumption of the statute\u2019s constitutionality and defendant\u2019s burden of overcoming that presumption. (DeLuna v. St. Elizabeth\u2019s Hospital (1992), 147 Ill. 2d 57, 67, 588 N.E.2d 1139, 1143 (rejecting separation of powers challenge to statute requiring medical malpractice plaintiffs to submit a report from a health professional giving grounds for belief that the claim is meritorious).) With regard to the particular constitutional issue here,\n\u201cthe separation of powers provision does not create rigid boundaries prohibiting every exercise of functions by one branch of government which ordinarily are exercised by another [citations]. Thus, [the court] ha[s] consistently recognized that the legislature, which is vested with the power to enact laws, may also enact legislation which governs judicial practices, as long as it does not unduly infringe upon the powers of the court.\u201d (Emphasis in original.) (People v. P.H. (1991), 145 Ill. 2d 209, 222-23, 582 N.E.2d 700, 706.)\nIn this way, courts have found that the legislature may enact statutes governing judicial procedure, such as pleading requirements, so long as the legislature does not pass legislation that conflicts with supreme court rules or that encroaches unduly on the courts\u2019 judicial powers under the State constitution. DeLuna, 147 Ill. 2d at 69, 588 N.E.2d at 1144, citing People v. Walker (1988), 119 Ill. 2d 465, 475, 519 N.E.2d 890.\nIn P.H., for example, our supreme court was asked to determine whether the \u201cgang-transfer\u201d provision in the Juvenile Court Act of 1987 (HI. Rev. Stat. 1989, ch. 37, par. 805 \u2014 4(3.1)), which requires a juvenile court to order prosecution of a minor as an adult if it makes certain findings, constituted an infringement upon the inherent power of the judiciary \u201cto adjudge, determine and render a judgment.\u201d The court held that it did not, reasoning that juveniles had no common law or constitutional right to juvenile court adjudication under the Juvenile Court Act, which it defined as \u201ca purely statutory creature whose parameters and application are defined solely by the legislature,\u201d just as the bifurcated hearing procedure under the Illinois Marriage and Dissolution of Marriage Act (111. Rev. Stat. 1977, ch. 40, par. 403(e)) was designed to define and implement a statutorily created remedy. P.H., 145 111. 2d at 223-24, 582 N.E.2d at 706-07, citing Strufcoff v. Strukoffi1979), 76 Ill. 2d 53, 389 N.E.2d 1170.\nHere, by analogy, the statute at issue created an exception to the hearsay rule for a class of out-of-court statements by children in prosecutions for sexual acts committed upon them, provided that certain conditions are met for reliability. Like the legislative enactments in P.H. and Strukoff, the statute at issue is in derogation of the common law, albeit evidentiary not procedural, which the legislature could define and then implement, in this case by creating a mandatory limiting instruction. Therefore, we hold that section 115 \u2014 10(c) does not represent an infringement, much less one that is undue, of the courts\u2019 judicial power.\nMoreover, although it is true, as defendant suggests, that when a conflict occurs between a statute and a rule, the rule prevails (O\u2019Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, 282-83, 492 N.E.2d 1322, 1326 (conflict between voluntary dismissal statute and Rule 103(b) resolved in favor of the rule); People v. Bainter (1989), 126 Ill. 2d 292, 303, 533 N.E.2d 1066, 1070), we find no lack of harmony between Supreme Court Rule 451 and section 115 \u2014 10. Rule 451 instructs courts that if an IPI instruction exists and is applicable, it must be used so long as it does not misstate the law; if there is no applicable IPI instruction, the court is to give an instruction that is \u201csimple, brief, impartial, and free from argument.\u201d (134 Ill. 2d R. 451.) Here, an instruction exists (IPI Criminal 2d No. 11.67 (Supp. 1989) (now IPI Criminal 3d No. 11.66)); it is applicable because J.R.H.\u2019s out-of-court statements had been admitted; and it tracks the language of the statute, so it does not misstate the law. Indeed, the circuit court would have been remiss under Supreme Court Rule 451 had it not given the instruction.\nII\nDefendant next characterizes the verdict as \u201ccoerced\u201d because (1) the circuit court told the jury \u201cit\u2019s still quite early\u201d and did not give the Prim, instruction at the first indication that the jury was deadlocked; (2) when it finally did give the instruction, the court prefaced it with another \u201cit\u2019s quite early\u201d remark; and (3) the court delayed its response to the last note. He asserts that the court\u2019s comments that it was early and its lack of immediate response to the last note \u201ccould have impelled the jury to believe that it was required to reach a verdict.\u201d\nThe cases defendant cites in support are no help to him. In People v. Ferro (1990), 195 Ill. App. 3d 282, 291-92, 551 N.E.2d 1378, appeal denied (1990), 133 Ill. 2d 563, 561 N.E.2d 698, for example, the jury foreman told the court at 1:30 a.m. that he did not believe that the jury could reach a verdict after approximately six hours of deliberation. The court replied, \u201c[i]f you are not going to be able to reach a verdict, I am going to house you in a local motel somewhere until this jury does reach a verdict. *** Do you think you will be able to reach a verdict in the next few minutes, please.\u201d The jury then asked for another hour, after which it asked for 10 minutes and then rendered a guilty verdict on one of the two counts. Noting that an instruction to continue deliberating should be \u201csimple, neutral, and not coercive,\u201d the appellate court reversed the conviction because the court had not informed the jury of its option to deadlock, stating that \u201cthe test effectively turns on a consideration of whether the trial court\u2019s instruction imposed such confusion and pressure on the jury to reach a verdict that the accuracy and integrity of the verdict returned becomes uncertain.\u201d (195 Ill. App. 3d at 293, 551 N.E.2d at 1385.) The opinion does not mention the Prim instruction.\nThe \u201cit\u2019s still early\u201d comment here was simple, neutral, and not coercive. It contained nothing to the effect that a verdict was required, implied no pressure, and created no confusion. Instead, it conveyed only reassurance to the jury that it should not expect to reach unanimity in just a few hours and encouragement to continue its deliberations. Such comments are not the stuff of coercion, unlike the court\u2019s not-so-subtle threat in Ferro, from which a jury likely would infer that it was obliged to reach unanimity, and quickly. In addition, the jury\u2019s decision to continue to deliberate for some time after hearing each remark here belies the interpretation defendant urges.\nIn another case cited by defendant, People v. Branch (1984), 123 Ill. App. 3d 245, 462 N.E.2d 868, 11 jurors voted guilty. The one who did not explained that he did not want anyone to go to jail. When apprised of the juror\u2019s feelings in a note, the judge told the jury that that juror should not have served and that they would be sequestered in an hour. Ten minutes later, the jury reached its verdict. The appellate court determined that the court\u2019s remark likely intimidated the juror by implying that his refusal to join the majority should have disqualified him rather than explaining that the juror was improperly focusing on punishment rather than guilt. The court also noted that the one-hour deadline for sequestration reinforced the pressure on the lone juror to end the inconvenience to his fellows. Here, there were no remarks singling out the unconforming jurors nor did the court give the jury a deadline of any sort. The remarks here are too innocuous to have pressured the jurors who were voting for acquittal, unlike Branch, and they did not interfere with the verdict, unlike Ferro. Therefore, the verdict was not coerced by the circuit court\u2019s remarks.\nAs for the court\u2019s initial refusals to read the Prim, instruction, in People v. Cowan (1985), 105 Ill. 2d 324, 473 N.E.2d 1307, another case cited by defendant, the court did not respond to a similar note sent after four hours of deliberation or to another sent three hours later. The jury was then sequestered and the next morning, after a third note following 45 minutes of deliberation, the court finally informed the attorneys of the notes and gave the Prim, instruction. Despite the delay, the supreme court held that the circuit court had not abused its discretion in waiting to read the instruction, given the five-day trial on nine \u201cserious\u201d charges, with testimony by 11 witnesses.\nAs Cowan observed:\n\u201cThe time when a supplemental instruction should be given is for the court to decide. This court said in People v. Preston (1979), 76 Ill. 2d 274, that \u2018it is primarily the function of the trial court to determine, on the basis of such factors as the length of time already spent in deliberation and the complexity of the issues before the jury, when the giving of the [Prim] instruction becomes appropriate.\u2019 [Citation.] The trial court has discretion to have the jury continue its deliberation even though the jury has reported that it is deadlocked and will be unable to reach a verdict.\u201d 105 Ill. 2d at 328, 473 N.E.2d at 1309.\nCourts also look to the time at which the instruction is given and the length of the jury\u2019s deliberations after receiving the Prim instruction to determine whether the instruction itself had a coercive effect. Peo pie v. Edwards (1991), 218 Ill. App. 3d 184, 201-02, 577 N.E.2d 1250, 1261, appeal denied (1991), 142 Ill. 2d 658, 584 N.E.2d 133; see also People v. Hugues (1991), 230 Ill. App. 3d 192, 201-02, 595 N.E.2d 1, 7, appeal denied (1992), 146 Ill. 2d 639, 602 N.E.2d 464.\nThe case before this jury was not complex: there was only one charge and few witnesses. The jury had deliberated fewer than four hours before the first note indicating impasse, which the court answered, and only another two hours before the second, after which the court read the Prim instruction. The jury then deliberated another two hours before sending a third note indicating that it was hung. Only nine minutes later, before the court had time to respond, it reached its verdict. Given the nature of the charge, the number of witnesses, and the two hours between the jury\u2019s first indication of deadlock and the reading of the instruction, we cannot say that the circuit court abused its discretion by not giving the jury the Prim instruction after the first note indicating deadlock. In light of the two hours of deliberation after the jury heard the Prim instruction, the instruction itself cannot be said to have had a coercive effect on the jury. Lastly, we see no basis, other than rank speculation, for holding that the circuit court\u2019s lack of immediate response to the third note, even when coupled with its earlier admonitions that it was early, compelled the jury to believe it was obliged to reach a verdict.\nIll\nDefendant contends that he has a constitutional right to a fair and impartial jury and that the circuit court abused its discretion in denying his challenges for cause to venire members Raymond Maid and Richard Barrich, both of whom expressed reservations about their ability to be fair and impartial. He adds that the charge concerned a homosexual act, a matter about which a jury\u2019s passions might be inflamed, and both men\u2019s comments concerned this very aspect of the case. The solution he urges is a remand for a new trial.\nWithout question, \u201c[t]he law provides that a venireman is incompetent to sit as a juror if he cannot be impartial, and a reviewing court may reverse a conviction where a juror expressed self-doubt concerning his ability to be impartial.\u201d (People v. Delgado (1992), 231 Ill. App. 3d 117, 120, 596 N.E.2d 149, 152.) Although one court concluded that \u201cthere can be no claim of prejudice\u201d if a challenged venire member is excluded by use of a peremptory challenge (People v. Johnson (1987), 162 Ill. App. 3d 952, 955, 516 N.E.2d 343, 345), we believe the better rule is that articulated in People v. Johnson (1991), 215 Ill. App. 3d 713, 725-26, 575 N.E.2d 1247, 1255, in which the court held that even if a challenged venire member does not sit as a juror, a defendant may claim prejudice if he was forced to accept another objectionable juror after he had exhausted his peremptory challenges because the court refused to excuse the venire member challenged earlier for cause.\nIn Delgado, for example, the circuit court denied a defendant\u2019s challenge of a venire member for cause after the person expressed doubt about his ability to be impartial. The defendant then used a peremptory challenge to exclude that venire member. The appellate court agreed that the circuit court should have permitted dismissal for cause, but it nevertheless affirmed, holding that \u201c[if a] defendant ] [does not] indicate to the trial court that he was being forced to accept an objectionable juror because of the court\u2019s refusal to excuse [the challenged venire member] for cause[, that defendant] denie[s] the court an opportunity to cure the error thereby failing to establish prejudice to defendant.\u201d Delgado, 231 Ill. App. 3d at 121, 596 N.E.2d at 153.\nHere, the doubt expressed by both Maid and Barich indicates the equivocation deplored in Johnson, People v. Harris (1990), 196 Ill. App. 3d 663, 554 N.E.2d 367, appeal denied (1990), 133 Ill. 2d 565, 561 N.E.2d 699, and People v. Washington (1982), 104 Ill. App. 3d 386, 432 N.E.2d 1020. Therefore, the circuit court should have permitted defendant to excuse them for cause. As in Delgado, however, it does not appear from the record here, nor does defendant argue, that the circuit court\u2019s ruling forced him to squander two peremptory challenges and therefore he had no peremptory challenges remaining when he desired later to excuse a venire member but had no ground for doing so for cause. Absent a demonstration of such prejudice, no reversal is warranted. See also People v. Martinez (1992), 242 Ill. App. 3d 915, 928.\nIV\nDefendant also contests the admission of testimony by the other three boys, J.M., R.N., and D.P. Although the State had convinced the circuit court that the evidence was admissible to prove modus oper-andi and intent, defendant claims that the testimony did not show a clear connection between the other incidents and the charged crime, nor did the other incidents share the requisite \u201cpeculiar and distinctive common features\u201d for use as proof of modus operandi. He argues that what the State considers \u201cdistinctive features that are not common to most offenses of that type\u201d are \u201cmerely irrelevant coincidences,\u201d including that all four victims were white, lived in the south suburbs, were slightly built, and were baseball players who wanted to improve their throwing. He instead emphasizes the differences: J.R.H. was much younger than the other boys, he was the only one to have slept over, and he was the only one to say that defendant had offered money and to allege penetration. Even if the evidence were of a distinctive pattern of criminal behavior, he continues, the State still did not demonstrate the relevance of the other testimony because identification was not at issue, so modus operandi evidence was unnecessary, nor was intent. Moreover, defendant argues, the State did not prove that the other acts were for the purpose of sexual gratification, so it did not prove the elements of sexual abuse, making evidence of these acts inadmissible. Lastly, he asserts that even if admissible, this testimony\u2019s prejudicial effect far outweighed any probative value given that allegations of child sexual abuse are highly inflammatory and that that evidence was the bulk of the State\u2019s case. He concludes that without this testimony, the State\u2019s case was not overwhelming because J.R.H.\u2019s credibility was questionable due to the lack of immediate outcry, the absence of an admission by defendant, the lack of corroborating medical evidence, and the inability of the boy and his mother to recall the date on which the events occurred.\nGenerally, in cases of sexual misconduct involving a child victim, the State may not present evidence of similar offenses with other children unless it is relevant for purposes other than propensity. (People v. Mason (1991), 219 Ill. App. 3d 76, 80, 578 N.E.2d 1351, 1354 (remand ordered due to inadvertent elicitation of evidence that defendant had molested others); People v. Daniels (1988), 172 Ill. App. 3d 616, 624, 527 N.E.2d 59, 64.) Although the abuse of discretion standard is typically invoked when reviewing admission of evidence of other offenses because \u201cit is within the sound discretion of the trial court to determine whether evidence of other [offenses] is relevant to a material issue and whether the probative value of such evidence outweighs its prejudicial impact\u201d (People v. Brown (1991), 214 Ill. App. 3d 836, 844-45, 574 N.E.2d 190, 195, appeal denied (1991), 141 Ill. 2d 547, 580 N.E.2d 121), the improper admission of evidence of sexual misconduct with other children in a case like this one ordinarily requires reversal. Mason, 219 Ill. App. 3d at 80, 578 N.E.2d at 1354.\nPreliminarily, we note that contrary to defendant\u2019s premises, \u201cother offenses\u201d evidence is not limited to conduct for which a defendant has been proven guilty beyond a reasonable doubt (People v. Partin (1987), 156 Ill. App. 3d 365, 370, 509 N.E.2d 662, 665, appeal denied (1987), 116 Ill. 2d 571, 515 N.E.2d 121), nor is modus operandi evidence admissible only if the identity of the perpetrator is in doubt (Brown, 214 Ill. App. 3d at 845, 574 N.E.2d at 195-96). To the extent that this view is at odds with the court\u2019s ruling on this point in People v. Barbour (1982), 106 Ill. App. 3d 993, 436 N.E.2d 667, we must disagree with Barbour.\nIn Barbour, the defendant objected to admission of evidence of two earlier alleged rapes on which no charges had been brought. The appellate court agreed. It first explained the difference between common design (\u201ca larger criminal scheme of which the crime charged is only a portion\u201d), which is generally relevant for motive, and modus operandi (\u201ca pattern of criminal behavior so distinctive that separate crimes are recognizable as the handiwork of the same wrongdoer\u201d), which is \u201cmost useful in showing that the accused is the perpetrator.\u201d (106 111. App. 3d at 999-1000.) After the appellate court summarily dismissed the use of the evidence to prove a common scheme, it held that the State had not made the \u201cstrong and persuasive showing of similarity\u201d that the modus operandi exception required because the \u201c[t]he State\u2019s lengthy list of purported similarities [did] not establish that the three alleged rapes were \u2018so nearly identical in method as to earmark them as the handiwork of the accused.\u2019 \u201d (106 HI. App. 3d at 1000.) Even if the State had done so, the court continued, the evidence was not relevant for establishing identity, about which there was no question, nor for consent. The court concluded that the only purpose for which the evidence had been offered was the inference that the defendant had a propensity for rape. As a result, the court held that admission of the evidence was reversible error.\nThe alternative view is represented by Brown, People v. Fuller (1983), 117 Ill. App. 3d 1026, 454 N.E.2d 334, and People v. Kimbrough (1985), 138 Ill. App. 3d 481, 485 N.E.2d 1292, appeal denied sub nom. People v. Green (1986), 111 Ill. 2d 573, 488 N.E.2d 272. In Brown, a rape case, two women other than the complainant were allowed to testify, over Barbour objections, about similar assaults by the defendant. The appellate court ruled that the similarities between the crime charged and the other alleged assaults were sufficient to \u201cestablish \u2018a substantial and meaningful link between the offenses being compared\u2019 and are \u2018not common to most offenses of that type.\u2019 [Citation.]\u201d (Broum, 214 Ill. App. 3d at 846.) The similarities included telling each victim about a job at Water Tower Place, luring each to an \u201coffice\u201d to prepare resumes, the victims\u2019 race, and a similar method of molestation. The court also held that the testimony was admissible as modus operandi evidence even though the identity of the perpetrator was not at issue.\nHere, the similarities in the events recounted in the testimony of the boys are striking in features both common in such offenses (e.g., the youth of the boys and isolating them during the incidents) and uncommon (e.g., the boys\u2019 build, the manner in which defendant lured them to the \u201cclubhouse\u201d with promises of increasing their athletic skills, the \u201cexercises\u201d he asked them to perform, and the method by which he assisted the boys in performing them). Although it is true that the challenged evidence described sexual conduct without either penetration, offer of money, or an overnight stay, these dissimilarities are not fatal. (People v. Williams (1989), 185 Ill. App. 3d 840, 853-54, 541 N.E.2d 1175, 1186 (there must be a strong and persuasive showing of similarity but the conduct need not be identical), appeal denied (1989), 127 Ill. 2d 639, 545 N.E.2d 129, citing People v. Phillips (1989), 127 Ill. 2d 499, 521, 538 N.E.2d 500, cert, denied (1990), 497 U.S. 1031, 111 L. Ed. 2d 798, 110 S. Ct. 3290.) As in Williams and the cases cited therein, here the differences between the events described by the other three boys are vastly outweighed by the similarities that made defendant\u2019s conduct unique. As a result, we find that the evidence was relevant and therefore admissible as probative of defendant\u2019s modus operandi.\nFurthermore, although this testimony certainly was damaging to defendant, any prejudice from it would not outweigh its probative value because the testimony was not in fact the bulk of the State\u2019s case (as shown in the number of witnesses and pages of testimony), and the jury was admonished to consider it only for limited purposes. Moreover, that the jury asked only for the testimony of J.R.H. and defendant during its deliberations indicates strongly that its focus was on the incident in question.\nAs for the introduction of the evidence to establish intent, we believe the error, if any, was harmless for reasons given below.\nV\nDefendant also claims that he was entitled to have the jury instructed on the offense of aggravated criminal sexual abuse and the definition of sexual conduct because a defendant is entitled to instructions for lesser included offenses even if the proof is very slight and even if it conflicts with the defendant\u2019s theory, citing among other cases, People v. Creamer (1986), 143 Ill. App. 3d 64, 492 N.E.2d 923. Here, he insists, the jury could have concluded that defendant committed only the abuse offense because J.R.H. was blindfolded during the alleged sexual penetration, and defendant admitted touching the boy, albeit innocently. The court\u2019s refusal to allow the jury to render a verdict of abuse, defendant reasons, warrants a new trial.\nAlthough a defendant is entitled to a jury instruction on a lesser included offense even if it conflicts with a defendant\u2019s theory so long as the instruction is justified by \u201cvery slight evidence upon a certain theory of the case,\u201d or even if it conflicts with a defendant\u2019s theory (Creamer, 143 Ill. App. 3d at 69, 492 N.E.2d at 927), aggravated criminal sexual abuse simply is not a lesser included offense of aggravated criminal sexual assault. A lesser included offense is one that \u201ccontains some but not all of the elements of the greater offense and contains no element not included in the greater.\u201d (People v. Maldonado (1992), 224 Ill. App. 3d 913, 917, 586 N.E.2d 788, 791; Ill. Rev. Stat. 1991, ch. 38, par. 2-9(a) (included offense is one established by proof of same or fewer facts, or less culpable mental state, or both, than charged crime).) The abuse offense includes an element not essential to the assault, that is, the purpose of sexual gratification or arousal of the accused or the victim (compare HI. Rev. Stat. 1991, ch. 38, pars. 12 \u2014 15, 12 \u2014 12(e)). Penetration, on the other hand, implies only knowledge, intent, or recklessness, not necessarily a purpose of sexual gratification. (People v. Terrell (1989), 132 Ill. 2d 178, 209-11, 547 N.E.2d 145, 158, cert, denied (1990), 495 U.S. 959, 109 L. Ed. 2d 749, 110 S. Ct. 2567.) Thus, because aggravated criminal sexual abuse includes a different, specific mental state and requires proof thereof, it cannot be a lesser included offense of aggravated criminal sexual assault. We therefore reject the statement in Creamer, adopted in People v. Finley (1988), 178 Ill. App. 3d 301, 306, 533 N.E.2d 94, and People v. Patel (1991), 213 Ill. App. 3d 688, 697, 572 N.E.2d 314, 320, that aggravated criminal sexual abuse is a lesser included offense of aggravated criminal sexual assault because the only difference between the two crimes is penetration.\nEven if those cases were correct, Creamer held that the abuse instruction should have been given because the victim\u2019s testimony that penetration had occurred was equivocal. No such equivocation, nor any other evidence that penetration might not have occurred, appears in this record. As a result, we hold that the circuit court\u2019s refusal to instruct the jury on the other offense was not an abuse of discretion.\nVI\nNext, defendant contends that Milanovich and Lenti were improperly allowed to give opinion testimony even though, as lay witnesses, they could render opinions only in limited circumstances not applicable here. These witnesses\u2019 testimony about defendant\u2019s training program and its effect on muscles was not about matters of which the average person has knowledge, he continues, so it was error to admit their opinions about it, just as it was error to allow them to give their opinions about the efficacy of the training techniques described in articles by others. Because this testimony could have led the jury to believe that defendant\u2019s training program was merely a ruse to lure J.R.H. to Ms office, he concludes, a new trial is warranted.\nIn its rebuttal case, the State may offer \u201c[e]vidence which would tend to \u2018explain, repel, contradict or disprove the evidence of the defendant.\u2019 \u201d (People v. Lucas (1989), 132 Ill. 2d 399, 434, 548 N.E.2d 1003, 1017, quoting People v. Daugherty (1969), 43 Ill. 2d 251, 255.) Whether offered in the case in chief or rebuttal, expert testimony is that which concerns \u201csubject matter *** sufficiently beyond the common experience of ordinary lay individuals such that only persons of a particular sMU or experience are capable of forming a judgment based on the facts presented.\u201d (People v. Masor (1991), 218 Ill. App. 3d 884, 887, 578 N.E.2d 1176, 1179 (explaimng when expert testimony is not required).) It is admitted when the witness\u2019 experience and qualifications afford such knowledge, if the testimony will aid the factfinder in reacMng a verdict. (People v. Enis (1990), 139 Ill. 2d 264, 288, 564 N.E.2d 1155, 1164.) A decision to admit evidence will be reversed only if the circuit court abused its discretion and the defendant suffered prejudice as a result. People v. Williams (1991), 209 Ill. App. 3d 709, 723, 568 N.E.2d 388, 396, appeal denied (1991), 139 Ill. 2d 604, 575 N.E.2d 922.\nEven if the testimony here were outside the realm of common knowledge and experience, so that only an expert could address it, defendant was not prejudiced by its admission. Unlike the testimony of the young victim in People v. Daniels (1987), 164 Ill. App. 3d 1055, 518 N.E.2d 669 (Daniels I), in wMch the court held that the victim\u2019s impeached testimony needed corroborating evidence to sustain the conviction because it was not sufficiently \u201cclear and convincing,\u201d J.R.H.\u2019s testimony was convincing, cogent, concise, and consistent. It alone, therefore, is sufficient to sustain defendant\u2019s conviction; corroboration in the form of eyewitnesses, medical evidence, prompt complaint, and the like is unnecessary. (People v. Daniels (1988), 172 Ill. App. 3d 616, 622-23, 527 N.E.2d 59, 63-64 (testimony of victim alone was sufficient to sustain conviction because it was clear and convincing despite conflicts with prior testimony and Mstory of lying) (Daniels II).) Any error, therefore, does not require reversal in tMs case.\nVII\nDefendant asserts that the circuit court should not have? given instructions about other crimes evidence (IPI Criminal 2d No. 3.14) because the State may not prove intent through such evidence, reiterating Ms argument from Part IV above. Giving IPI Criminal 2d No. 11.67 (Supp. 1989) was improper as well, he continues, not only because it is unconstitutional, as he argued in Part I, but also because it is \u201can erro-neons instruction which misstates the law\u201d in that it contains no language instructing the jury that the statements should be considered only as they demonstrate the reliability of a child\u2019s in-court testimony, and worse yet it tells the jury to determine the weight the statement should be given. Lack of a proper limiting instruction warrants reversal, he contends, and any mistake he made in not offering one was not waived because the instruction \u201cemanates from the General Assembly who used mandatory language with regard to the giving of the instruction.\u201d\nAs for the lack of language in IPI Criminal 2d No. 11.67 (Supp. 1989) limiting the use of J.RH.\u2019s out-of-court statements, we find no reason for requiring such language. If defendant\u2019s interpretation of the statute were correct, these statements could never be admitted unless a child testifies in court. Under the statute, however, the statements are admissible under certain conditions even if a child is unavailable to testify. (HI. Rev. Stat. 1989, ch. 38, par. 115 \u2014 10(bX2)(B).) As a result, we find no intent on the part of the legislature to limit use of the statements as defendant urges us to do. In addition, as we explained above, IPI Criminal 2d No. 11.67 (Supp. 1989) does not misstate the law, given that its language tracks the statute, which is the law. Thus, the circuit court\u2019s decision to give the instruction was correct.\nSimilarly, in light of the strength of the State\u2019s case, any error in instructing the jury that the evidence could be considered to prove intent was not reversible. People v. Leger (1992), 149 Ill. 2d 355, 404, 597 N.E.2d 586, 608 (even though attempted murder instruction misstated the law, error was not reversible because the State presented substantial evidence of defendant\u2019s guilt), petition for cert, filed October 28, 1992.\nFor the reasons given above, we affirm the judgment of the circuit court.\nAffirmed.\nMcCORMICK, P.J., and SCARIANO, J., concur.\nThe statute reads as follows:\n\u201c(a) In a prosecution for [certain] sexual act[s] perpetrated upon a child under the age of 13, *** the following evidence shall be admitted as an exception to the hearsay rule:\n(1) testimony by such child of an out of court statement made by such child that he or she complained of such act to another; and\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 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(B) Is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement.\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 111. Rev. Stat. 1989, ch. 38, par. 115 \u2014 10.\nIPI Criminal 2d No. 3.14, as modified in this case, states as follows:\n\u201cEvidence has been received that the defendant has been involved in offenses other than that charged in the indictment. This evidence has been received solely on the issue of defendant\u2019s modus operandi or method of acting and his intent. This evidence may be considered by you only for the limited purpose for which it was received.\u201d\nIPI Criminal 2d No. 11.67 (Supp. 1989), as modified in this case, states as follows:\n\u201cYou have before you evidence that [J.R.H.] made statements to his mother concerning the offense 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 [J.R.H.], the nature of the statements, and the circumstances under which the statements were made.\u201d\nNeither instruction appears in the common law record, but from the rest of the record it appears that they were IPI Criminal 2d Nos. 11.64 and 11.39 (Supp. 1989).\nThe Prim instruction is as follows:\n\u201cThe verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree thereto. Your verdict must be unanimous.\nIt is your duty, as jurors, to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict.\nYou are not partisans. You are judges \u2014 judges of the facts. Your sole interest is to ascertain the truth from the evidence in the case.\u201d People v. Prim (1972), 53 111. 2d 62, 75-76, 289 N.E.2d 601, 609, cert, denied (1973), 412 U.S. 918, 37 L. Ed. 2d 144, 93 S. Ct. 2731.\nWe observe in passing that there is no dearth of like statutes. See, e.g., 111. Rev. Stat. 1991, ch. 110, par. 8 \u2014 2601 (same as statute at issue, for civil cases); 111. Rev. Stat. 1991, ch. 38, par. 9 \u2014 1(c) (court shall instruct jury to consider any aggravating and mitigating factors relevant to imposition of death penalty); 111. Rev. Stat. 1991, ch. 38, par. 115 \u2014 4\u00a9 (court shall separately instruct jury that a special verdict of riot guilty by reason of insanity may be returned under certain conditions); 111. Rev. Stat. 1991, ch. 110, par. 2 \u2014 1107.1 (in certain negligence or strict liability actions, the court shall instruct the jury that a defendant shall be found not liable if the jury finds that the plaintiff\u2019s contributory fault is more than 50% of the proximate cause of the injury or damage).", "type": "majority", "author": "JUSTICE DiVITO" } ], "attorneys": [ "Eugene O\u2019Malley, of Chicago, for appellant.", "Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Donald T. Lyman, and Joelle Marasco, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHESTER NOVAK, Defendant-Appellant.\nFirst District (2nd Division)\nNo. 1 \u2014 91\u20140539\nOpinion filed February 23, 1993.\nEugene O\u2019Malley, of Chicago, for appellant.\nJack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Donald T. Lyman, and Joelle Marasco, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0836-01", "first_page_order": 854, "last_page_order": 881 }