{ "id": 1352914, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL DARBY, Defendant-Appellant", "name_abbreviation": "People v. Darby", "decision_date": "1999-01-28", "docket_number": "No. 1\u201497\u20143938", "first_page": "866", "last_page": "878", "citations": [ { "type": "official", "cite": "302 Ill. App. 3d 866" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "568 N.E.2d 857", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "142 Ill. 2d 204", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3236877 ], "year": 1991, "pin_cites": [ { "page": "226" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/142/0204-01" ] }, { "cite": "636 N.E.2d 604", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "264 Ill. App. 3d 556", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 680701 ], "year": 1993, "pin_cites": [ { "page": "566" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/264/0556-01" ] }, { "cite": "578 N.E.2d 942", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "144 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5592943 ], "year": 1991, "pin_cites": [ { "page": "13" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/144/0001-01" ] }, { "cite": "578 N.E.2d 1081", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "218 Ill. App. 3d 752", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499289 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/ill-app-3d/218/0752-01" ] }, { "cite": "683 N.E.2d 188", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "289 Ill. App. 3d 859", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 351116 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "861" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/289/0859-01" ] }, { "cite": "625 N.E.2d 1133", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "253 Ill. App. 3d 724", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5421467 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/ill-app-3d/253/0724-01" ] }, { "cite": "625 N.E.2d 1081", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1993, "opinion_index": 0 }, { "cite": "253 Ill. App. 3d 1075", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5423046 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "1091" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/253/1075-01" ] }, { "cite": "996 F.2d 145", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10509621 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/f2d/996/0145-01" ] }, { "cite": "415 U.S. 308", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6174956 ], "weight": 3, "year": 1974, "opinion_index": 0, "case_paths": [ "/us/415/0308-01" ] }, { "cite": "552 N.E.2d 726", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "135 Ill. 2d 159", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3256443 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "175" }, { "page": "176" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/135/0159-01" ] }, { "cite": "178 Ill. 2d 65", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 385528 ], "year": 1997, "pin_cites": [ { "page": "74" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/178/0065-01" ] }, { "cite": "473 N.E.2d 1246", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "104 Ill. 2d 504", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3147214 ], "year": 1984, "pin_cites": [ { "page": "525-26" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/104/0504-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 3, "year": 1984, "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "676 N.E.2d 248", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "286 Ill. App. 3d 278", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1544425 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/ill-app-3d/286/0278-01" ] } ], "analysis": { "cardinality": 1070, "char_count": 27351, "ocr_confidence": 0.773, "pagerank": { "raw": 6.075661451083098e-08, "percentile": 0.3752075893227752 }, "sha256": "af1427e5bb641315849061f6ba49dc9f3b4ee5d0d3c0a5fe76c094f7fe8e949b", "simhash": "1:a3ad77ccc3759e61", "word_count": 4503 }, "last_updated": "2023-07-14T17:49:29.885307+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. MICHAEL DARBY, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE WOLFSON\ndelivered the opinion of the court:\nIn a bench trial, Michael Darby (Darby) was found guilty of two counts of aggravated criminal sexual assault and one count of aggravated kidnapping. He was sentenced to consecutive terms of six years on the two counts of aggravated criminal sexual assault and one concurrent six-year term on the aggravated kidnapping conviction. He raises issues that require us to examine a legislative act commonly referred to as the rape shield statute (725 ILCS 5/115\u20147 (West 1996)). We affirm.\nFACTS\nThe charges arose out of an incident that occurred on October 12, 1995, between Darby and'a minor, A.B., in Darby\u2019s apartment at 1350 W Jarvis in Chicago.\nBefore Darby\u2019s trial, defense counsel was provided discovery, which included a file showing A.B.\u2019s involvement with the Department of Children and Family Services (DCFS). This file contained information regarding a child abuse report which alleged that A.B. and her half sister, E.B., had been sexually abused by E.B.\u2019s grandfather in December 1994 and January 1995.\nThe report alleged the grandfather had fondled the children over their clothing. In the course of the investigation of this report, both A.B. and E.B. were examined by Dr. Lorand at the Cook County Hospital on October 27, 1995. Based on this examination, it was Dr. Lorand\u2019s medical opinion that both E.B. and A.B. had been sexually abused. Dr. Lorand told a DCFS caseworker the medical evidence indicated sexual penetration, not consistent with digital penetration. Dr. Lorand\u2019s records simply say her findings are consistent with sexual abuse. Based on Dr. Lorand\u2019s findings, A.B., E.B., and their brother, C.B., were placed in protective custody with DCFS.\nThe file indicates that A.B., after this examination, told police no one other than E.B.\u2019s grandfather ever touched her vaginal area. She insisted E.B.\u2019s grandfather touched her only over her clothes.\nOn July 29, 1997, just before trial, the State brought a motion in limine to exclude any reference to the prior report of sexual abuse by E.B.\u2019s paternal grandfather. Defense counsel objected, arguing the information was admissible under People v. Grano, 286 Ill. App. 3d 278, 676 N.E.2d 248 (1996), because the prior accusation was false. The trial court said it would admit the evidence if defense counsel could show the prior complaint was false. Defense counsel said he would be unable to do this since the grandfather was too ill to come to court. The judge offered defense counsel a short continuance, but this offer was not accepted.\nNo one mentioned Dr. Lorand\u2019s October 27, 1995, finding that both E.B. and A.B. had been sexually, not digitally, abused by penetration. Admissibility of this information never was discussed.\nThe State moved to exclude any reference to \u201cfighting\u201d going on between DCFS and A.B.\u2019s mother with regard to her ability to care for her daughter. Though A.B. was still in foster care at the time of trial, the State said it did not believe the family situation was relevant to the issues in Darby\u2019s trial.\nAgain, defense counsel objected. He said the abuse of A.B. by her mother was an important aspect of the defense case. It was his intention, he said, to show A.B.\u2019s accusations against Darby were due to \u201ctransference,\u201d that is, A.B. blaming someone else for an abusive home situation.\nThe court agreed with the State that A.B.\u2019s family situation was not relevant. The court said defense counsel\u2019s claim of transference was too speculative. Still, because it was a bench trial, the court said it would allow some questions regarding abuse by the mother and determine at that time what, if any, relevance the evidence had.\nDarby\u2019s bench trial began. Nine-year-old A.B. was found competent to testify. She then testified that in October 1995, when she was eight years old, she lived with her mother, her grandmother, two siblings, and an elderly woman named Hilda. The apartment they lived in was across the hall from Darby\u2019s apartment.\nA.B. said at about 1:30 p.m. on October 12, 1995, she left her apartment with the intention of going to Georgie\u2019s, a local restaurant, to buy some lunch. No one in her family was at home except Hilda. A.B. met Darby in the hallway. He asked her where she was going and, when she told him, he decided to accompany her. After purchasing some food at Georgia's, A.B. and Darby returned to Darby\u2019s apartment, where they watched television and ate. A.B. said she asked Darby to keep the apartment door open so she would know when her grandmother got home, but Darby refused.\nWhen they were finished eating, A.B. said, Darby picked her up and took her to his bedroom. He placed her on the bed and, pinning her with his body, began kissing her \u00f3n her lips and neck. A.B. said she struggled to get away and asked Darby to stop, but he refused and kept her pinned on the bed. Darby then pulled down A.B.\u2019s pants and underwear. First he digitally penetrated her vagina, then he penetrated her with his tongue. After this happened, A.B. said, she was able to push Darby off her far enough to escape. She pulled up her pants and ran home.\nA.B. said she didn\u2019t immediately tell anyone what happened because Hilda was the only one at home at that time. The next day, however, A.B. told her mother. A.B. said her mother took her to a police station, where A.B. repeated her story to an officer. The police officer then took her to the hospital, where a doctor examined her.\nOn cross-examination, defense counsel asked A.B.: \u00a3<[W]hile you were living with your mother, did anyone besides [Darby] ever do that to you?\u201d The State objected. The court then allowed defense counsel to tailor the question.to: \u201cDid anyone besides [Darby] put their finger inside you?\u201d A.B. answered, \u201cNo.\u201d\nAJB.\u2019s mother, Carmen, also testified. She said A.B. told her on October 13, 1995, that Darby had sexually assaulted A.B. the previous day. Carmen said she took A.B. to the police station and the police took them to the hospital. At the hospital, Carmen said, she was pres-ent when the doctor examined A.B. and was able to observe that A.B.\u2019s vaginal area was swollen and irritated.\nIt was stipulated by the parties that Dr. Karen Sheehan, if called, would testify she examined A.B. on October 13, 1995, at Children\u2019s Hospital. She observed AJB.\u2019s vaginal area was red and irritated and A.B.\u2019s hymen was torn. Dr. Sheehan would further testify that it was her opinion the redness, irritation, and damage to A.B.\u2019s hymen were consistent with digital penetration of the vagina and that this would have occurred recently, i.e., within a day.\nDefendant testified in his own defense. He admitted he had gone to Georgie\u2019s with A.B. to get some food on October 12, 1995, but said this occurred around 2:30 p.m., after he took his girlfriend to work. After purchasing food, Darby said, they returned to his apartment and ate the food in the kitchen. When they were done eating A.B. returned home.\nLater, at about 3:30 in the afternoon, Darby said he received a call from his girlfriend, Jenny, to meet her at her job. A.B. saw Darby leaving and asked if she could go along. Darby said he got permission from A.B.\u2019s grandmother, Karen, before taking A.B. with him to the Star-buck\u2019s store where Jenny worked. Darby denied touching A.B. in a sexual manner or restraining her in any way. He said he asked A.B., during the car ride to Starbuck\u2019s, when A.B. was going to put a stop to the abuse- she was receiving at home.\nDarby\u2019s girlfriend, Jenny Williamson, also testified. She said she worked at Starbuck\u2019s and on October 12, 1995, began work at 2 p.m. She said she had been home until about 1:45, when Darby drove her to work. Later, at about 3:10 p.m., she called Darby to come back and take her out for an early lunch break. She said Darby returned to Starbuck\u2019s at about 3:30 p.m. and brought A.B. with him. Jenny said A.B. was wearing a one-piece outfit and was in high spirits. Jenny said Michael and A.B. waited for her for about an hour, while she met with her district manager. Then, when she realized she wasn\u2019t going to be able to get away, she told Darby and A.B. to go home. Jenny testified briefly to an incident she witnessed between A.B. and A.B.\u2019s mother. Jenny said Carmen yelled at A.B. because her pet had an accident on the floor.\nIn rebuttal, it was stipulated by the parties that Assistant State\u2019s Attorney Johnson and Detective Gavin, if called, would testify that on October 14, 1995, they questioned Darby after his arrest. At that time, Darby told them he watched television with A.B. on October 12, 1995, while she ate some french fries. Darby also told them that A.B. asked him to \u201cflip\u201d her after she finished eating. Darby said he tried to toss A.B. in the air, but she was too heavy. Darby suggested A.B.\u2019s accusations of sexual abuse stemmed from her misunderstanding of his intentions when he was holding her to \u201cflip\u201d her.\nAfter hearing all of the evidence, the trial judge found defendant guilty of two counts of aggravated criminal sexual assault and one count of aggravated kidnapping. Darby was sentenced to consecutive terms of six years on the two counts of aggravated criminal sexual assault and one concurrent term of six years on the aggravated kidnapping conviction.\nNow, on appeal, Darby raises four issues: (1) whether he received ineffective assistance of counsel; (2) whether the trial court erred when it excluded certain evidence; (3) whether remarks made by the prosecutor unfairly prejudiced him; and (4) whether he was proved guilty beyond a reasonable doubt.\nDECISION\n1. Ineffective Assistance of Counsel\nDarby contends his trial counsel was ineffective. He says his counsel\u2019s challenge to the State\u2019s motion in limine to exclude evidence of prior sexual abuse on the basis of People v. Grano (prior false complaint) was a serious error and demonstrates his counsel\u2019s general lack of knowledge of his case.\nDarby also contends his trial counsel failed to subject the State\u2019s case to meaningful adversarial testing. He says it was error for counsel to have stipulated to Dr. Sheehan\u2019s medical opinion that A.B.\u2019s injury was consistent with recent digital penetration. Darby now says counsel should have called Dr. Lorand as a witness to testify regarding her October 27, 1995, medical finding that both A.B. and E.B. had been sexually penetrated in a manner inconsistent with digital penetration.\nOther errors allegedly committed by trial counsel are: stipulating to the testimony of Detective Gavin and Assistant State\u2019s Attorney Johnson; failing to call Hilda or Carmen\u2019s mother, Karen, as a witness; and failing to present any evidence to explain why A.B. would falsely accuse him.\nNone of Darby\u2019s arguments is persuasive. To prove ineffective assistance of counsel, a defendant must show not only that his counsel made serious errors, but that he was prejudiced by the errors. Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984); People v. Albanese, 104 Ill. 2d 504, 525-26, 473 N.E.2d 1246 (1984). To have been prejudiced, the defendant must prove there is a reasonable probability that, but for counsel\u2019s errors, the result of the proceeding would have been different. People v. Griffin, 178 Ill. 2d 65, 74 (1997). Darby is unable to meet either prong of the Strickland standard.\nWe do not find defense counsel\u2019s People v. Grano response to the State\u2019s motion to exclude prior sexual abuse evidence an indication of counsel\u2019s lack of knowledge of defendant\u2019s case.\nPursuant to the statute commonly known as the rape shield statute (725 ILCS 5/115\u20147 (West 1996)), \u201c[i]n prosecutions for predatory criminal sexual assault of a child *** the prior sexual activity or the reputation of the alleged victim is inadmissible except (1) as evidence concerning the past sexual conduct of the alleged victim with the accused when this evidence is being offered by the accused upon the issue of whether the alleged victim consented to the sexual conduct with respect to *** the offense alleged; or (2) when constitutionally required to be admitted.\u201d\nIn People v. Grano, the court held the rape shield statute does not apply to evidence the complainant falsely accused others of improper sexual advances. The Grano court reversed the defendant\u2019s conviction, holding evidence of prior false accusations by the complainant was admissible to attack the witness\u2019s credibility.\nIn this case, defense counsel took the position at trial that A.B.\u2019s mother, when she came under scrutiny by DCFS, lodged a false report of sexual abuse (fondling) against E.B.\u2019s grandfather. This was not an unreasonable position to take. It fit the defense theory of the case. The report against the grandfather was not confirmed by extrinsic evidence and no legal action was taken against the grandfather. Defense counsel argued the inference to be drawn from these facts was that the accusation against the grandfather was false and that it showed a pattern \u2014 that Carmen would falsely accuse someone of wrongdoing to deflect the focus of a DCFS investigation from herself. The evidence did not support the claim.\nOn appeal, for the first time, Darby contends Dr. Lorand\u2019s examination of the girls on October 27, 1995, and her belief that both girls had been sexually penetrated were evidence the allegations against the grandfather were true.\nThe State does not dispute the assertion that defense counsel was aware of Dr. Lorand\u2019s examination. Trial counsel listed as a possible witness Gloria Lewis, the DCFS investigator who placed the children in protective custody after Dr. Lorand\u2019s medical findings.\nAssuming then, for the purposes of the ineffective assistance of counsel claim, counsel had this information, we find no error in counsel\u2019s failure to offer it at trial.\nOur review of the record, including the DCFS file, convinces us that Dr. Lorand\u2019s medical findings were correctly treated by everyone as an independent source of abuse, unrelated to the report against the grandfather. The grandfather was accused of fondling the girls over their clothing months earlier. No allegations of penetration were made against him. AJB.\u2019s mother, Carmen, said she discontinued visitation between the girls and the grandfather months prior to the medical examination. The record also suggests DCFS placed all of Carmen\u2019s children in protective custody immediately after Dr. Lorand\u2019s medical examination of the girls precisely because DCFS did not know the source of abuse revealed by the examination.\nDarby faults trial counsel for not calling Dr. Lorand to testify regarding her October 27, 1995, examination of A.B. He says Dr. Lo-rand\u2019s medical findings could have cast doubt on Dr. Sheehan\u2019s diagnosis or somehow demonstrate A.B.\u2019s motive to falsely accuse Darby. We disagree.\nBefore the failure to call a witness can be said to be ineffective assistance, it must be shown the witness\u2019s testimony would be relevant and admissible. We think Dr. Lorand\u2019s testimony was neither.\nDr. Lorand\u2019s examination of A.B. occurred about two weeks after the incident involving Darby. It was not temporally relevant and could not have contradicted Dr. Sheehan\u2019s observation of recent irritation consistent with digital penetration. Nor did Dr. Lorand\u2019s examination rebut A.B.\u2019s testimony against Darby or explain how A.B. came to have knowledge of digital penetration.\nDr. Lorand\u2019s examination of A.B. was evidence of other sexual abuse \u2014 whether related to the investigation of the grandfather or an independent source of abuse. Pursuant to the rape shield statute, then, it was admissible only if it was \u201cconstitutionally required to be admitted.\u201d\nTo determine when collateral evidence of sexual activity is \u201cconstitutionally required to be admitted,\u201d we look first to People v. Sandoval, 135 Ill. 2d 159, 552 N.E.2d 726 (1990).\nIn 1990, when Sandoval was decided, the rape shield statute did not contain the term \u201cconstitutionally required to be admitted.\u201d Yet our supreme court recognized the statute, to pass constitutional muster, could not be interpreted in a way that denied a defendant his right to confront witnesses against him or prevent the defendant from presenting his theory of the case. After quoting extensively from Davis v. Alaska, 415 U.S. 308, 39 L. Ed. 2d 347, 94 S. Ct. 1105 (1974), the Sandoval court said:\n\u201c[N]ot even a statute can be used to shelter a witness whose motive, prejudice or bias may affect testimony before the court. The emphasis of Davis was not to create an exception to the statutory protection, but to prevent the statute from creating an exception to the well-settled and accepted admissibility of the motive, bias or prejudice of a particular witness.\u201d (Emphasis in original.) People v. Sandoval, 135 Ill. 2d at 175.\nFollowing the decision in Sandoval, the legislature acted on the court\u2019s recognition that a defendant\u2019s constitutional right to confront witnesses must, in certain instances, supersede the statutory exclusion. The statute was amended to provide for admission of evidence of prior sexual activity or reputation \u201cwhen constitutionally required to be admitted.\u201d\nTo be \u201cconstitutionally required,\u201d evidence of other sexual activity has to be more than simply relevant, it must be germane to the accused\u2019s right to confront witnesses against him or to present his theory of the case. This is a decision best made on a case-by-case basis. See Sandoval v. Acevedo, 996 F.2d 145 (7th Cir. 1993).\nUnder the circumstances of this case, we see no reason to believe any evidence Dr. Lorand could have provided would have been \u201cconstitutionally required\u201d or necessary to Darby\u2019s defense. As the court held in People v. Hooker, 253 Ill. App. 3d 1075, 625 N.E.2d 1081 (1993), evidence that merely shows that children have been molested by others is not relevant because it does not rebut the complainants\u2019 testimony regarding abuse by the defendant.\nThe same conclusion was reached in People v. Leggans, 253 Ill. App. 3d 724, 625 N.E.2d 1133 (1993). In Leggans, the defendant was charged with sexually assaulting two children. He sought to introduce evidence the two children previously had been victims of sexual abuse. The court rejected the assertion that \u201cthis evidence would have permitted the jury to conclude that someone other than the defendant caused the harm to the girls and that the girls had sufficient knowledge of sexual activity to allow them to fabricate their allegations against the defendant.\u201d 253 Ill. App. 3d at 731. The court said this theory regarding the victims\u2019 motive to falsely accuse him was speculation, offered in an attempt to divert the focus of the jury from the accusations against the defendant.\nEvidence of other sexual activity can be admissible, but it must be relevant to an important issue in controversy. For example, in People v. Hill, 289 Ill. App. 3d 859, 683 N.E.2d 188 (1997), the defendant was charged with having a six-year-old perform acts of fellatio on him. At trial the young complainant demonstrated knowledge of the anatomy and functioning of a sexually mature male. The court observed \u201c[wjhen a child displays unique sexual knowledge and assigns it to experience with a defendant, the inference of guilt is overwhelming.\u201d 289 Ill. App. 3d at 861.\nHowever, in Hill, the court excluded evidence of prior sexual activity. The defense attempted to offer evidence of prior sexual activity between the child complainant and a young, prepubescent boy. The prior report, the court said, wasn\u2019t sufficiently probative under the specific facts of the case. It simply wasn\u2019t capable of rebutting the child\u2019s unique display of knowledge about the sexual functioning of an adult male.\nWe conclude evidence concerning Dr. Lorand\u2019s examination of A.B. was inadmissible. Having reached this conclusion, it follows that Darby\u2019s trial counsel was not ineffective for failing to call Dr. Lorand as a witness.\nDarby\u2019s remaining contentions concerning ineffectiveness do not persuade. Darby cites People v. Gunnart, 218 Ill. App. 3d 752, 578 N.E.2d 1081 (1991), for the proposition that trial counsel\u2019s failure to call witnesses or develop an available defense is reason to find ineffective assistance of counsel. However, in Gunnart, unlike this case, evidence that had been available but was not discovered due to counsel\u2019s failure to investigate provided concrete information that could have been used to corroborate defendant\u2019s trial testimony. In this case defendant cannot show how he was prejudiced by trial counsel\u2019s stipulation to the rebuttal testimony of Detective Gavin and Assistant State\u2019s Attorney Johnson. On the contrary, by stipulating to this evidence, trial counsel was able to avoid the risk of more damaging evidence being presented. It was a sensible trial strategy in the absence of evidence the testimony was vulnerable to cross-examination.\nSimilarly, we attach no error to trial counsel\u2019s stipulation to Dr. Sheehan\u2019s testimony. Dr. Sheehan examined A.B. on October 13, 1995, one day after the alleged sexual assault by Darby. Her examination corroborated A.B.\u2019s claim of recent digital penetration. Her testimony was relevant and admissible. It would have been presented whether or not trial counsel agreed to the stipulation. Darby does not say how he would have benefitted from requiring Dr. Sheehan\u2019s live testimony.\nDarby also makes no attempt to support his claims that Hilda or Carmen\u2019s mother, Karen, would have offered relevant testimony that would have helped his defense. Nor does he suggest what evidence might have been presented to explain why A.B. would have falsely accused him. Unsubstantiated claims of counsel error are insufficient to support a finding of ineffective assistance of counsel. Since Darby has not shown how he was prejudiced by the alleged errors, we need not determine whether counsel\u2019s performance fell below an objective standard of reasonableness. People v. Pecoraro, 144 Ill. 2d 1, 13, 578 N.E.2d 942 (1991).\n2. Court\u2019s Ruling on the Motion to Exclude\nDarby contends the trial court erred when it granted the State\u2019s motion in limine to exclude evidence of A.B.\u2019s past sexual activity and her family life. He says the report of prior sexual abuse and Dr. Lo-rand\u2019s medical examination should not have been excluded by the rape shield statute because this evidence was relevant to his defense theory \u2014 that A.B. had been sexually abused by someone else and her accusations against him were a product of \u201ctransference.\u201d\nWe have addressed this issue when deciding the ineffectiveness claim. We found all collateral evidence of sexual abuse of dubious relevance and, at any rate, inadmissible under the rape shield statute. The record simply does not support Darby\u2019s claim that the evidence of A.B.\u2019s sexual history was probative to any issue in controversy.\nWe agree with what was said in People v. Jones, 264 Ill. App. 3d 556, 566, 636 N.E.2d 604 (1993):\n\u201c[Njothing logically links the victim\u2019s prior instance of sexual conduct with the alleged motive to lie. Jones\u2019 argument, when stripped bare, advances the theory that a defendant may circumvent the rape shield statute and explore the victim\u2019s prior sexual history whenever he asserts that the victim has any motive to he, which is, of course, absurd.\u201d\nDarby now contends the prior abuse was admissible because A.B. made what appears to be an inconsistent statement to the police during the investigation of the prior report of abuse. After Dr. Lorand\u2019s examination (which took place after the incident with Darby), A.B. told police E.B.\u2019s grandfather had touched her \u201cscoony\u201d (vaginal area) over her clothes and he was the only person to \u201cdo anything like that\u201d to her.\nThe existence of this vaguely inconsistent statement does not justify the introduction of all sexual history evidence. See People v. Sandoval, 135 Ill. 2d at 176. This is especially true here, where any prejudice that might have stemmed from defendant\u2019s inability to explore the statement was cured by the latitude given to counsel in cross-examining A.B. In lieu of a more generalized question regarding sexual abuse by someone else, the trial court allowed defense counsel to ask A.B., \u201cDid anyone besides [Darby] put their finger inside you?\u201d By allowing this question, the relevancy of the prior statement was diminished, if not eliminated.\n3. Prosecutorial Misconduct\nDarby contends he was unfairly prejudiced because the State, when arguing in favor of exclusion of evidence in its motion in limine, misrepresented the facts to the court. The State told the court the alleged abuse by E.B.\u2019s grandfather occurred 10 months prior to the incident involving Darby and did not involve penetration. Darby says, based on Dr. Lorand\u2019s October 27, 1995, examination of A.B. and E.B., the State\u2019s comments were untrue and misleading. We note the trial court examined the DCFS file before trial and would have been aware of its contents.\nBecause the examination occurred on October 27, 1995; and the alleged fondling by the grandfather was said to have occurred in December 1994 and January 1995, it is doubtful the cause of medical evidence revealed by this examination could be attributed to the grandfather. We assign no error to the prosecutor\u2019s remarks. We find no intention to deceive or mislead the court, nor is there any indication the trial judge relied on anything but the DCFS file in his pretrial rulings.\nNor do we find, as Darby claims, the State took unfair advantage of the exclusion of other sexual abuse evidence. The State said in closing argument the acts A.B. testified Darby performed were so aberrant that an eight-year-old could not have described them unless she experienced them.\nThe prosecutor\u2019s statement was a legitimate inference drawn from the evidence, which the State was free to argue in its closing remarks in this bench trial. People v. Hooker, 253 Ill. App. 3d 1075, 1091, 625 N.E.2d 1081 (1993).\n4. Sufficiency of the Evidence\nDarby\u2019s final contention is that he was not proved guilty beyond a reasonable doubt. In making this argument, however, he relies on information contained in A.B.\u2019s DCFS file, including Dr. Lorand\u2019s medical evidence \u2014 information not admitted at trial and, as we have determined, not admissible. Defendant presents no good reason for us to hold the evidence against him was insufficient.\nThe trial testimony of A.B. and Darby amounted to a credibility contest. Determining the credibility of the witnesses, the weight to be given testimony, and the inferences to be drawn from it is the responsibility of the trier of fact. People v. Steidl, 142 Ill. 2d 204, 226, 568 N.E.2d 857 (1991). Our review of the trial record convinces us the evidence, viewed in a light most favorable to the State, was adequate to support conviction.\nCONCLUSION\nWe affirm defendant\u2019s convictions and sentences for aggravated criminal sexual assault and aggravated kidnapping.\nAffirmed.\nSOUTH, EJ., and HOFFMAN, J., concur.", "type": "majority", "author": "JUSTICE WOLFSON" } ], "attorneys": [ "Lora D. Kadlec, of Bolingbrook, for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, Janet Powers Doyle, and Lisa Preston, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL DARBY, Defendant-Appellant.\nFirst District (4th Division)\nNo. 1\u201497\u20143938\nOpinion filed January 28, 1999.\n\u2014 Rehearing denied February 25, 1999.\nLora D. Kadlec, of Bolingbrook, for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, Janet Powers Doyle, and Lisa Preston, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0866-01", "first_page_order": 884, "last_page_order": 896 }