2021 IL App (2d) 190329-U Nos. 2-19-0329 & 2-19-0452 cons. Order filed September 9, 2021
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of McHenry County. ) Plaintiff-Appellee, ) ) v. ) No. 15-CF-467 ) ROBERT J. LIBRICZ, ) Honorable ) James S. Cowlin, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE BIRKETT delivered the judgment of the court. Justices Hudson and Brennan concurred in the judgment.
ORDER
¶1 Held: Though the indictment alleged a date range for sex offenses that included time before the effective date of the statute creating the offense, this defect was not fatal to the indictment. Defense counsel was aware that the law had changed during the specified time frames and could have prepared an appropriate defense. Also, the allegations were sufficient to allow defendant to assert a double jeopardy bar to subsequent charges based on the same conduct.
¶2 Following a bench trial, defendant, Robert J. Libricz, was convicted of, inter alia, two
counts of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 1996)). On
appeal, defendant argues that the indictment was fatally defective, and his convictions must be 2021 IL App (2d) 190329-U
reversed because the alleged period in which the acts took place included time before the effective
date of the statute creating the offense. We affirm.
¶3 I. BACKGROUND
¶4 On June 25, 2015, defendant was charged in an 11-count indictment with various sex
offenses against two of his daughters, D.H. and K.L., alleged to have been committed between
1987 and 2006, when the victims were minors. Counts I and II charged defendant with predatory
criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 1998)) and criminal sexual
assault (720 ILCS 5/12-13(a)(3) (West 2004)), respectively, against D.H., who was born on May
4, 1992.1 Counts III through XI charged defendant with various sex offenses against K.L., who
was born on March 27, 1984.
¶5 At issue here are counts VI and VIII, charging predatory criminal sexual assault of a child.
The offense of predatory criminal sexual assault of a child was created by Public Act 89-428, with
an effective date of December 13, 1995. Before then, the offense existed in section 12-14(b)(1) of
the Criminal Code of 1961 (720 ILCS 5/12-14(b)(1) (West 1994)) as one of the several different
ways in which a person could commit aggravated sexual assault. See People v. Tellez-Valencia,
188 Ill. 2d 523, 529 (1999) (Rathje, J., dissenting). “Public Act 89-428 moved the offense from
the aggravated criminal sexual assault statute and designated it the separate offense of predatory
criminal sexual assault of a child.” Id. Public Act 89-428 was later declared unconstitutional for
violating the single-subject clause of the United States Constitution. Johnson v. Edgar, 176 Ill. 2d
1 Defendant brought a motion to sever counts I and II, which the trial court granted. The
State first proceeded to a bench trial on the allegations involving K.L.
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499 (1997). This rendered the offense of predatory criminal sexual assault of a child “void
ab initio; that is, it was as if the law never existed.” Tellez-Valencia, 188 Ill. 2d at 526. The General
Assembly reenacted the offense in Public Act 89-462, with an effective date of May 29, 1996.
“[T]his reenactment had the effect of creating an entirely new criminal statute.” Tellez-Valencia,
188 Ill. 2d at 526.
¶6 Count VI charged that, “on or between March 27, 1995 and March 27, 1997, inclusive,”
defendant committed predatory criminal sexual assault of a child, “in violation of Chapter 720,
Section 5/12-14.1(a)(1) of the Illinois Compiled Statutes,” in that he “committed an act of sexual
penetration with K.L., who was under 13 years of age,” when he “caused his penis to make contact
with the vagina and/or anus of K.L.”
¶7 Count VIII charged that, “on or between March 27, 1995 and March 27, 1997, inclusive,”
defendant committed predatory criminal sexual assault of a child, “in violation of Chapter 720,
Section 5/12-14.1(a)(1) of the Illinois Compiled Statutes,” in that he “committed an act of sexual
penetration with K.L., who was under 13 years of age,” when he “inserted his penis inside the
vagina of K.L.”
¶8 Counts VII and IX charged defendant based on the same alleged acts and period in counts
VI and VIII, respectively. However, those counts alleged the offense of aggravated criminal sexual
assault “in violation of 720 ILCS 5/12-14(b)(1) of the Illinois Compiled Statutes.”
¶9 On April 26, 2017, defendant filed a motion for a bill of particulars, arguing that he was
unable to prepare his defense. Defendant argued, inter alia, that “[t]here have been substantive law
changes both within the date ranges as well as in the time period between the specified date ranges
and the charging date.”
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¶ 10 On May 4, 2017, defendant filed a motion to dismiss the indictment, arguing that counts I
and III-XI were barred by the statute of limitations. On June 22, 2017, defense counsel advised the
trial court that he had withdrawn the motion.
¶ 11 The hearing on the motion for a bill of particulars took place on August 3, 2017. Defense
counsel argued at the hearing that the State “pled a range” and that “the law changes over these
ranges.” Counsel argued that he could not prepare a defense, because he “[did not] know what law
we are talking about *** and this isn’t supposed to be a guessing game.” Further: “It seems there
is a due process violation to say I have to generally prepare for some unspecified law and we are
going to sort it out at trial. I don’t think that’s the way the system was set up, so it impacts our
defense and it impacts our ability to negotiate and it impacts everything.”
¶ 12 The trial court denied the motion, stating that it was permissible to allege a range of dates
in which the offenses allegedly occurred. The court stated: “As long as the crime occurred within
the statute of limitations and prior to the return of the charging instrument, the State need only
provide the Defendant with the best information it has as to when the offenses occurred.”
¶ 13 On November 1, 2018, the matter proceeded to a bench trial. The court granted the State’s
motion to dismiss counts VII and IX (each charging aggravated criminal sexual assault), and the
State proceeded on counts III, IV, V, VI, VIII, X, and XI. Four witnesses testified for the State,
including K.L. Four witnesses testified for the defense, including defendant. The State presented
three rebuttal witnesses.
¶ 14 K.L. testified that she had three sisters, D.H., J.L. (born 10/27/85), R.L. (born 6/27/94),
and one brother, R.J.L. (born 5/23/90). K.L. testified as follows about the allegations in count VI.
When she was “about 11,” she was sleeping on the couch in the living room of the family home
when she woke up with defendant on top of her. Defendant was attempting to penetrate her vagina
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with his penis. Defendant’s penis touched her vagina and her anus. On cross-examination, defense
counsel asked: “At that time, I believe you said it was somewhere between the ages of 11 and 13?”
K.L. responded: “In there.”
¶ 15 K.L. testified as follows about the allegations in count VIII. When K.L. was “in the sixth
grade,” she had asked defendant for permission to attend a sixth-grade dance. Defendant told her
that she could go but that she would have to first shower. K.L. went to the upstairs bathroom to
shower. While she was showering, defendant entered the bathroom, took off his clothes, and
entered the shower. Defendant bent K.L. over and penetrated her vagina with his penis from
behind. On cross-examination, K.L. testified that, in sixth grade, she would have been 11 when
the school year started and turned 12 during the school year.
¶ 16 K.L. testified that, in March 2015, she and D.H. went to the McHenry County Sheriff’s
Office to report allegations of abuse against defendant and met with McHenry County Sheriff’s
detective Michelle Asplund. On April 1, 2015, K.L. had a telephone conversation with defendant
in Asplund’s presence, which was recorded. On April 13, 2015, K.L. met with defendant in person,
while wearing a recording device provided to her by Asplund. The recordings were admitted into
evidence as People’s exhibit No. 1 and were played for the trial court.
¶ 17 During the April 1, 2015, telephone conversation, K.L. told defendant that she missed
spending time with the family. K.L. told defendant that she knew that they had sex and that she
wanted him to apologize for what he did. Defendant commented about D.H. and about things being
posted on the Internet to ruin their lives. Defendant denied that he had sex with K.L. and stated,
“You know, you guys didn’t have to go down this fucking route.” K.L. commented that she kept
having flashbacks about when they had sex and defendant said, “I don’t know what to say to you.”
Throughout the conversation, defendant denied K.L.’s allegations. Defendant told K.L. that if she
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wanted to talk to him, she needed to do so in person. When she asked defendant if he would
apologize, he told her that he was not going to apologize for anything. When K.L. stated that she
could not believe that defendant would not apologize to her, he said that he did not trust anyone
anymore and that everyone was trying to ruin their lives.
¶ 18 During the April 13, 2015, conversation, which took place at defendant’s place of
employment, K.L. told defendant that she wanted the apology that he told her he would give her
in person. She said that she wanted to come back to her family but that she was not going to unless
he apologized. Defendant asked K.L. what she needed an apology for. K.L. replied, “You know
for what dad. You know for what.” Defendant replied, “I know. What am I going to do about you
and the other fucking asshole sister of yours.” Defendant went on to talk about posts that D.H.
made on Facebook. K.L. again stated that she wanted her apology and that it was all that she
expected from him. Defendant commented that he thought that K.L. was in counseling. Defendant
then stated: “You know Ruby apologized to somebody he did something to and he’s going to jail.
I don’t want to go to fucking jail for anything.” Defendant asked K.L. if she was wearing a
recording device and she told him that she was not. Defendant asked K.L., “So what am I supposed
to tell your mother [unintelligible] all this? How do I explain that to her?” K.L. told defendant that
her mother was “fucking blind.” Defendant stated: “Well, it seems like all you guys want to do is
ruin our entire life, which you guys have halfway succeeded in doing.” He stated: I don’t know
why this has become such a fricking issue all of a sudden.” Defendant again commented on things
being posted on Facebook, stating that he did not know who started it or why. K.L. said: “Because
[D.H.] said you molested her when she was little.” K.L. stated: “And I know what you did to me,
dad.” K.L. then commented that she was not sure if “it ever happened to [R.L.]” but that J.L. said
that “it happened to her too” but “she recanted” because “she needed somewhere to live.”
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Defendant then stated that nothing ever happened with R.L., J.L., or D.H. Defendant stated: “I
don’t even know where to begin with this. I mean once you squirt the toothpaste out of the tube it,
you can’t put it back in so I don’t know what’s going to go on.” K.L. then asked defendant if he
was going to apologize to her on his death bed, and he responded: “I thought about that.” Defendant
later stated: “I guarantee we didn’t have a perfect normal family, but I don’t think anybody’s got
a perfect normal family. I never meant to hurt you or anybody, [K.L.]” Defendant told K.L. that
her mom did not want to have anything to do with D.H. Defendant then stated, “You on the other
hand, I don’t know, your mom told me she thinks something was going on, blah, blah, whatever.
You know, I gotta live with everything I’ve done, I—I’m not happy with a lot of things I did.
Would I do things different? Yeh.” At that point, someone entered the room. After the individual
left, as K.L. was saying goodbye to defendant, he stated: “Your mom thinks something went on. I
don’t know why it went on. I loved you the most out of all the kids [K.L.], you were my first born,
you were my pride and joy. I wasn’t drunk. I wasn’t high. Nothing like that. I loved you. I don’t
know.”
¶ 19 D.H. testified regarding other acts of sexual conduct committed by defendant. In 1999,
when DH was between five and seven years old, she attended a daddy-daughter dance with
defendant. After the dance, she was alone with defendant in his bedroom and he put his pinky
finger in her vagina. In approximately 2004 to 2006, when D.H. was about 13 years old, she fell
asleep with her parents in their bed. When she woke up, defendant had his hand in her underwear,
penetrating her vagina with his fingers.
¶ 20 Asplund testified that she met with K.L. and D.H. on March 11, 2015. She spoke with them
separately. She subsequently obtained an “overhear” order and, on April 1, 2015, recorded the
telephone conversation between K.L. and defendant. Asplund listened to the call while in progress.
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K.L. was “extremely emotional” and “upset” during the call. On April 13, 2015, she set up a
“person-to-person overhear” with K.L. She provided K.L. with a recording device to wear on her
person. K.L. then drove to defendant’s place of employment and had a conversation with him.
Afterward, K.L. returned the recording device to Asplund. On April 17, 2015, Asplund interviewed
defendant at his place of employment. When she told him that she was investigating an allegation
of sexual abuse, he responded that he knew what she was talking about. When she told him that
K.L. reached out to him for an apology and that he apologized to K.L, defendant told her that “he
did not apologize for any sexual abuse.” Rather, “[h]e apologized for how bad her life was.”
¶ 21 Beverly B. testified that, in the summer of 1989, her daughter, M.B., was friends with K.L.
and J.L., who was K.L.’s younger sister. Beverly was in her vehicle, with M.B., K.L., and J.L.,
when M.B., who was about five years old, stated that “boys have penises and girls have vaginas.”
According to Beverly, K.L. then stated, “[W]e take a shower with daddy, and he makes us touch
his penis.” J.L. “scoochied back in the seat,” and Beverly said, “I’ll take care of it.” Beverly made
an anonymous report to “DCFS.” K.L.’s mother confronted Beverly, and Beverly denied making
the report. Beverly had no further contact with the family until November 2015 when she had
contact with K.L. In January 2016, Beverly gave a statement to the police.
¶ 22 For the defense, J.L., testified that she was K.L.’s sister and was about 19 months younger
that K.L. She testified that, while growing up, she always shared a bedroom with K.L. and they
were very close. J.L. never saw defendant inappropriately touch K.L. Defendant never touched
J.L. inappropriately and never made her shower with him. J.L. had no recollection of being in a
car with K.L. when K.L. told an adult about touching defendant’s penis.
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¶ 23 R.L. testified that she was born in 1994 and was the youngest of defendant’s five children.
While growing up, she shared a bedroom with D.H., who was two years older than her. She never
saw defendant do anything inappropriate to K.L. or D.H.
¶ 24 Kimberlee Kelly Libricz, defendant’s wife, testified that she had been married to defendant
for 35 years and they had five children. Kimberlee was not “on speaking terms” with K.L. because
she did not agree with how K.L. was raising her children. Kimberlee never saw defendant abuse
K.L.
¶ 25 Defendant testified that the sexual acts testified to by D.H. and K.L. never happened and
that he never did anything sexually inappropriate with either of them.
¶ 26 In rebuttal, D.H. testified regarding a photograph taken during the daddy-daughter dance.
Beverly testified regarding three photographs taken of herself, her daughter, and K.L. in
defendant’s home over Thanksgiving in 1989. Shelly Pier, a licensed clinical social worker
specializing in sexual violence trauma, provided expert testimony on post-traumatic stress
disorder, rape trauma syndrome, and child abuse accommodation syndrome.
¶ 27 The trial court found defendant not guilty of count III but guilty of all remaining counts.
The court found that D.H. was a credible witness and that her testimony as to other-crimes evidence
corroborated the State’s case against defendant. The court also found that, although defendant
denied all allegations, “he made incriminating statements when confronted by [K.L.] on April 13,
2015.” The court stated:
“The Defendant stated to [K.L.] in response to her plea for an apology, quote, how do I
explain it to your mother; quote, I never meant to hurt you; quote, I have to live with
everything I have done, closed quote. Other incriminating statements are included in the
recording, admitted as State’s Exhibit Number 1.
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Defendant attempted to explain away the statements when testifying, but the Court
gives no weight to those explanations. The recorded statements made to [K.L.] are clear
and unequivocal.
It is not logical for the Defendant to address his daughter in the manner he did on
April 13, 2015, if he had not committed acts against her.”
¶ 28 The court specifically noted that “[e]ach offense is charged pursuant to the law in effect at
the time of the alleged offense.” Concerning count VI, the court cited the relevant statutory
provision and noted that the act was alleged to have occurred between March 27, 1995, and March
27, 1997. Pointing to K.L.’s testimony, D.H.’s testimony as to other crimes, and defendant’s
incriminating statements, the court found that “the State has met its burden of proof on all elements
of the charged offense.” The court also stated:
“Although the Court is convinced beyond a reasonable doubt the incident occurred when
[K.L.] was under age 13, the Court does not find [K.L.] was under age 12 when the act
occurred. Doubt exists as to the age of 11, as testified to by [K.L.], as [K.L.] could only
say she was around 11.”
Concerning count VIII, the court again cited the relevant statutory provision and noted that the act
was alleged to have occurred between March 27, 1995, and March 27, 1997. The court stated that
it found “[K.L.’s] testimony credible.” The court further stated that “[d]efendant’s recorded
statements made in person to [K.L.] on April 13, 2015, corroborate[d] [K.L.’s] testimony, as does
the testimony of [D.H.]” The court found that “the State has proved all elements of Count VIII
beyond a reasonable doubt.”
¶ 29 On December 19, 2018, defendant filed a motion for a new trial, which was denied.
Following a sentencing hearing, the trial court sentenced defendant on counts IV, V, VI, VIII, X,
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and XI, to concurrent prison sentences of 5, 12, 12, 18, 5, and 8 years, respectively. On March 25,
2019, defendant filed an amended motion for reconsideration of his sentences. The trial court
denied the motion on March 28, 2019.
¶ 30 On April 11, 2019, defendant pleaded guilty to count I and was sentenced to six years in
prison, to be served concurrently with the above sentences. Count II was dismissed per the plea.
¶ 31 On April 22, 2019, defendant filed both a motion to correct certain errors in sentencing and
a notice of appeal (appeal No. 2-19-0329). The motion was denied on May 13, 2019. On May 24,
2019, defendant filed a notice of appeal from the order entered on May 13, 2019 (appeal No. 2-
19-0452). On July 5, 2019, we consolidated defendant’s appeals.
¶ 32 II. ANALYSIS
¶ 33 Defendant contends, for the first time on appeal, that counts VI and VIII in the indictment,
alleging predatory criminal sexual assault of a child, were fatally defective, because the offense
did not exist before May 29, 1996, and each count alleged that the act occurred on or between
March 27, 1995, and March 27, 1997. Defendant argues that, because he was charged with offenses
that did not exist during portions of the alleged periods, he was prejudiced in the preparation of his
defense. Thus, according to defendant, his convictions for predatory criminal sexual assault of a
child as charged in counts VI and VIII of the indictment must be vacated.
¶ 34 The State responds that counts VI and VIII were not defective, because the State charged
defendant with a continuing course of conduct that straddled the effective date of the offense. In
addition, the State argues that defendant was not prejudiced by the alleged defect, because he
“possessed specific knowledge about the alleged time frames within the indictment, along with the
applicable predatory criminal sexual assault statute in effect” Alternatively, the State argues that,
if we find the convictions void, we should enter judgment on the lesser included offenses of
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aggravated criminal sexual abuse or hold that the State may charge defendant with any other
applicable offenses in effect on the dates of the alleged acts, such as aggravated criminal sexual
assault.
¶ 35 We first make clear our standard of review. “When the sufficiency of the charging
instrument is attacked in a pretrial motion, the standard of review is to determine whether the
instrument strictly complies with the requirements of section 111-3[(a)] of the Code of Criminal
Procedure of 1963 [725 ILCS 5/111-3(a) (West 2018)].” (Emphasis in original.) People v.
DiLorenzo, 169 Ill. 2d 318, 321-22 (1996). However, when an indictment is challenged for the
first time on appeal, as in the present case, “the standard of review is more liberal.” Id. at 322. “In
such a case, it is sufficient that the indictment apprised the accused of the precise offense charged
with enough specificity to (1) allow preparation of his defense and (2) allow pleading a resulting
conviction as a bar to future prosecutions arising out of the same conduct.” Id. (citing People v.
Thingvold, 145 Ill. 2d 441, 448 (1991)). In other words, this court should consider whether the
defect in the indictment prejudiced defendant in preparing his defense. Id.
¶ 36 Defendant relies on Tellez-Valencia, People v. Mescall, 379 Ill. App. 3d 670 (2008), and
People v. Wasson, 175 Ill. App. 3d 851 (1988), in support of his argument that his convictions on
count VI and VIII must be vacated.
¶ 37 In Wasson, the defendant was charged in a one-count information with aggravated criminal
sexual assault, based on acts that he committed between January 1, 1983, and April 24, 1985.
Wasson, 175 Ill. App. 3d at 853. The aggravated criminal sexual assault statute became effective
on July 1, 1984. Id. At trial, the jury heard evidence that the defendant sexually assaulted the victim
on numerous occasions during the period charged. Id.at 854. The trial court refused a jury
instruction that would have included as an essential element of the offense that the act occurred on
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or after the effective date of the statute. Id. at 859. The defendant was found guilty. The defendant
did not challenge the information in the trial court, but he argued for the first time on appeal that
it was defective. Id. at 854. The Fourth District agreed. The court held that the information “was
defective to the extent it charged [that] the act occurred prior to July 1, 1984.” Id. The court stated
that “the flaws in the charging instrument are fatal defects which invalidate the entire instrument
and warrant reversal of [the] defendant’s conviction.” Id. at 855. The court further stated:
“While the information adequately apprised defendant of the nature, cause, and
elements of the charge against him, it also charged him for conduct which occurred before
the statute came into effect. Defendant was hindered in the preparation of his defense
because he was forced to answer to crimes for which he could not have been lawfully
convicted.” Id. at 855.
The court found that the defective indictment was the source of any prejudice the defendant may
have suffered at trial. The court noted that other-crimes evidence is admissible if it is
“independently relevant to show motive, intent, identity, or some other issue connected with the
crime charged.” Id. In contrast, “the jury heard evidence of other crimes of defendant of which he
was improperly accused.” Id. Additionally, the court found that “in the limited circumstances of
this case the trial court erred in refusing to instruct the jury that defendant could not be convicted
as charged if the sexual misconduct occurred prior to July 1, 1984.” Id. at 859. Although the
reviewing court was “convinced” that the victim’s testimony established that an act occurred after
July 1, 1984, it held that, without a limiting instruction, it was impossible to know whether the
jury’s verdict was based on an act that predated the effective date of the charged offense. Id. The
court concluded:
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“For the reason the information charged defendant for an offense which could have
occurred before the corresponding statute was legally operative, we find it necessary to
invalidate the entire charging instrument and the resulting conviction. The defective nature
of the instrument, coupled with the conflicting testimony as to when the offense was
committed, and the trial court’s refusal to instruct on the effective date of the statute,
requires a reversal of the conviction and remand for a new trial.” Id. at 860.
The court noted that “it would have been better practice for the State to charge [the] defendant
under the old statute with one or more counts alleging the offense of aggravated indecent liberties
with a child between January 1, 1983, and June 30, 1984, [citation] and, under the current statute,
to enter additional counts for the act or acts committed between July 1, 1984, and April 24, 1985.”
Id. at 854-55. (On remand, the State filed an amended information charging the defendant with
aggravated indecent liberties with a child for the conduct before July 1, 1984, and aggravated
criminal sexual assault for the conduct thereafter. People v. Wasson, 211 Ill. App. 3d 264, 266
(1991).
¶ 38 In Tellez-Valencia, the indictments charged the offense of predatory criminal sexual assault
of a child, and the defendants were found guilty. Tellez-Valencia, 188 Ill. 2d at 525. While their
appeals were pending, the supreme court invalidated the law that created the offense. Id. This had
the effect of rendering the statute void ab initio. Id. at 526. The offense was reenacted but the
statute did not apply to offenses committed before its new effective date. Id. The supreme court
held that “[e]ach defendant’s charging instrument thus failed to state an offense because the statute
under which each was charged and prosecuted was not in effect when the alleged offenses
occurred.” Id. at 526. The court further held that the State could not amend the charging
instruments on appeal to allege aggravated criminal sexual assault. Id. at 527-28. Pointing to
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Wasson, the court stated: “[T]he defect caused by charging an offense based upon a statute not in
effect when the alleged offense occurred is fatal, rendering the entire instrument invalid, and
warranting reversal of defendants’ convictions.” Id. at 527.
¶ 39 In Mescall, this court considered both Tellez-Valencia and Wasson. At issue was whether
the defendant’s conviction, which the defendant alleged was based on a defective information, was
void, or merely voidable, for purposes of a postjudgment challenge in a petition under section 2-
1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2006)) filed beyond that section’s
two-year limitations period. Mescall, 379 Ill. App. 3d at 675-77. There, as in the present case, the
defendant was charged in an amended information with predatory criminal sexual assault of a child
based on conduct that was alleged to have occurred over a period that included time before the
effective date of the statute. Id. at 672. We held that the trial court properly dismissed the section
2-1401 petition as untimely, because “any problem with the amended information” did not deprive
the trial court of jurisdiction and, thus, the judgment was voidable, rather than void. Id. at 675. We
distinguished Tellez-Valencia based on the fact that, unlike in Tellez-Valencia, the offense existed
when the defendant committed at least some of the acts in the information. Id. 675-76. We noted,
moreover, that the holding in Tellez-Valencia was not based on the trial court’s lack of jurisdiction
and whether the judgments were void or voidable. Id. at 676. We also distinguished Wasson,
emphasizing that the trial court erred in that case by refusing to give the tendered jury instruction
and that the defendant raised the issue in a timely direct appeal rather than in an untimely section
2-1401 petition. Id. at 676-77. We agreed that “the information was defective because a portion of
the conduct complained of was alleged to have occurred before the effective date of the statute,”
but we held that the trial court nevertheless had jurisdiction to enter the judgment and thus the
defendant could not challenge it as void in an untimely section 2-1401 petition. Id. at 678.
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¶ 40 The above cases, particularly Wasson, lead us to conclude that counts VI and VIII of the
indictment were defective. As in Wasson, defendant was charged in counts VI and VIII with
offenses that did not exist during a significant portion of the alleged periods. Wasson makes clear
that those counts were defective to the extent they charged defendant for acts occurring prior May
27, 1996, the effective date of the offense. Although the present case is distinguishable from Tellez-
Valencia because the offense here did exist during a portion of the alleged periods, we nevertheless
note that Tellez-Valencia cited Wasson with approval. Further, in Mescall, the same kind of
charging irregularity as we have in this case was found to have rendered the charging instrument
in that case defective, albeit not void.
¶ 41 We reject the State’s argument that, because the dates alleged straddled the effective date
of the offense, counts VI and VIII were not defective. The State claims that it proceeded on a
theory that defendant engaged in a continuous course of predatory criminal sexual assault against
K.L. where the final act was not complete until March 1997, well after the effective date of the
offense. The State cites People v. McDade, 345 Ill. App. 3d 912, 915 (2004), for the proposition
that a continuous course of conduct is “not complete until the last act [is] accomplished.” McDade
does not apply here. In McDade, the defendant was convicted on one count of predatory criminal
sexual assault based on numerous assaults that occurred between December 1997 and June 1999.
Id. at 913. The issue on appeal was whether the defendant was eligible for the harsher restrictions
on sentencing credit that became effective in June 1998. Id. at 914. The First District found that
the defendant was eligible, reasoning that he was charged under a theory that he engaged in a
continuous course of conduct that did not end until 1999, after the effective date of the relevant
statute. Id. at 915-16. Unlike in McDade, counts VI and VIII here were not charged as continuous
courses of conduct, but rather as discrete instances of sexual misconduct.
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¶ 42 Our conclusion that counts VI and VIII were legally defective is not the end of our analysis.
As noted above, because defendant is challenging counts VI and VIII for the first time on appeal,
the question is whether “the indictment apprised the accused of the precise offense charged with
enough specificity to (1) allow preparation of his defense and (2) allow pleading a resulting
conviction as a bar to future prosecutions arising out of the same conduct.” DiLorenzo, 169 Ill. 2d
at 322.
¶ 43 Citing Wasson in support, defendant argues that he could not adequately prepare his
defense, “because the indictment charged him with offenses that did not exist during significant
portions of the alleged times when the offenses occurred.” The State argues that defendant was not
prejudiced in preparing his defense, because he (1) “possessed specific knowledge about the
alleged time frames within the indictment, along with the applicable predatory criminal sexual
assault statute in effect” and (2) his trial strategy was not complex, consisting of only attacking
K.L.’s testimony. We find that the indictment was sufficient to allow defendant to prepare a
defense.
¶ 44 Defendant’s argument that he could not adequately prepare his defense overlooks what
transpired during the hearing on defendant’s motion for a bill of particulars. During the hearing,
defense counsel stated:
“[B]efore I filed this, I went to the law library and started a spreadsheet and tried to chart
all this and I can tell you, it’s very complicated and it’s very problematic because some of
the law—some of these laws on some of these dates, there is not a book in the law library
that even has those laws and it’s not included in the subscription—it’s not archived on the
electronic research stuff. So we’re here in a situation where they’ve alleged such a wide
date range that you don’t know what the law is going to be, I don’t know what the law is
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going to be, the [S]tate hasn’t told us what law applies and we can’t look at a jury and tell
them what law applies.”
Later, the following colloquy took place:
“THE COURT: Let me ask you this: When you say no one knows what law we are
talking about, each particular count gives an on-or-between date. For example, Count 1 on
or between February 1, ‘99 and February 28, 1999. Why can’t you determine what the law
is in 1999 if that’s the problem?
[DEFENSE COUNSEL]: You can, Judge. You can, Judge.
THE COURT: All right.
[DEFENSE COUNSEL]: But let’s talk more about—let’s talk about the 1987
case—
THE COURT: Well, my point is, they set these kinds of dates out, it looks like, in
each and every count.
[DEFENSE COUNSEL]: And, Judge, my point is, over those ranges, some of those
ranges, the law changes.
THE COURT: Well, I understand that, that the law—the law may be different in
Count 3 between ‘87 and ‘89, December 1, ‘87 and December 1, ‘89, as to that particular
allegation. So you can look to see what law is going to apply to Count 3. There may be—
you may be right, if you’re going this way, that different laws, because they changed, apply
to different counts. You may be right about that.
[DEFENSE COUNSEL]: No, no, no. What I’m saying is from ‘87 to ‘89, the
statute, there were three different versions of the statute.
THE COURT: In that two-year time period.
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[DEFENSE COUNSEL]: Yes.
THE COURT: Okay.
[DEFENSE COUNSEL]: And if I recall—and, Judge, to be completely up front, I
tried to look at this for each count and I can’t because those books don’t even exist in the
law library and some of that stuff is not archived on Lexis.
THE COURT: Well, you’ll find it.”
¶ 45 In denying the motion, the trial court stated:
“I understand the difficulty that is before the defense when we were looking back
to the 1980s and the 1990s and trying to determine exactly which version of the statute was
in effect at that time. And if the defense were to go back and look and say, well, between
’87 and ‘89—this pertains to Count III—a particular statute was in effect and that statute
of limitations as pertains to that offense ran out in whatever year, you’re certainly free to
bring that motion, and the Court would rule on it.”
The court further commented, “[T]hat would be for the defense to examine.”
¶ 46 This colloquy establishes that defendant was well aware, before trial, that there had been
changes in the law during the periods alleged in the indictment. Defendant does not dispute that
counts VI and VIII alleged the proper elements of the offense of predatory criminal sexual assault
of a child, along with the proper statutory citation. His only argument concerns the effective date,
which he would have discovered had he researched the statute. Counsel argued that he could not
prepare a defense, because he “[did not] know what law we are talking about *** and this isn’t
supposed to be a guessing game.” However, counts VI and VIII of the indictment charged
defendant with a violation of “Chapter 720, Section 12-14.1(a)(1) of the Illinois Compiled
Statutes” and it provided him the alleged dates of the offense. We note, too, that when defendant
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filed his motion for a bill of particulars, counts VII and IX of the indictment charged defendant
with aggravated criminal sexual assault based on the same physical acts as counts VI and VIII. It
was not until the first day of trial that the State nol-prossed those counts. Thus, the record shows
that counsel had enough information to adequately prepare a defense. See People v. Cuadrado,
214 Ill. 2d 79 (2005) (where the record showed that the defendant was aware that the State needed
to prove procurement to prove her guilty of solicitation of murder for hire, the defendant was not
prejudiced by the State’s replacement of the word “procurement” with the word “solicited” in the
indictment, even though the terms were not interchangeable); People v. Rowell, 229 Ill. 2d 82
(2008) (distinguishing Cuadrado on the basis that the Cuadrado defendant “could simply look to
the statute to determine that the State needed to prove procurement”).
¶ 47 To be sure, in Wasson, the reviewing court stated that the “[d]efendant was hindered in the
preparation of his defense because he was forced to answer to crimes for which he could not have
been lawfully convicted.” 175 Ill. App. 3d at 855. Defendant claims that he was hindered in the
same way. However, Wasson, is distinguishable because, in that case, there was no indication that
counsel was aware, before trial, that the law had changed during the alleged periods. In addition,
counsel in Wasson proposed a jury instruction that would have informed the jury of the effective
date of the offense. Counsel thereby attempted to remedy the defect in the indictment. The present
case was a bench trial. “In a bench trial, *** a trial judge is presumed to know the law and to
follow it, and this presumption is rebutted only when the record affirmatively shows otherwise.”
People v. Ressa, 2019 IL App (2d) 170439, ¶ 31. Thus, we presume that the trial court, unlike the
jury in Wasson, was well aware of the effective date of the offense. Here, in issuing its ruling, the
court specifically noted that “[e]ach offense is charged pursuant to the law in effect at the time of
the alleged offense” and found that the State met its burden of proof as to all the elements of the
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offenses charged in counts VI and VIII. The court specifically cited the testimony from K.L. and
D.H. as well as defendant’s recorded statements. Although defendant asserts that, based on K.L.’s
testimony, it is “likely” that the acts occurred before the effective date of the offense, we presume
that the trial court found otherwise as it would not have convicted defendant based on acts that
occurred before the effective date of the statute. There is nothing in the record to affirmatively
indicate otherwise.
¶ 48 Tellez-Valencia is also readily distinguishable because, in that case, the offense of
predatory criminal sexual assault of a child was invalidated after the defendants had been convicted
and while their appeals were pending. The supreme court held that the defendants were prejudiced
because the offense was rendered nonexistent during the periods alleged in the indictments and,
thus, the defendants were charged and convicted of a nonexistent offense. Tellez-Valencia, 188 Ill.
2d at 526-28. Here, the offense existed as of May 29, 1996, within the period during which
defendant was alleged to have committed it. Given (1) the allegations in counts VI and VIII, which
included the date ranges within which the acts were alleged to have occurred and (2) defense
counsel’s knowledge that, “over those ranges, some of those ranges, the law changes,” we cannot
say that defendant was hindered in the preparation of his defense.
¶ 49 We also find that those allegations, along with the record of the proceedings, are sufficient
to allow defendant to plead the judgment to bar any subsequent prosecution for the same conduct.
See DiLorenzo, 169 Ill. 2d at 325.
¶ 50 III. CONCLUSION
¶ 51 For the reasons stated, we affirm the judgment of the circuit court of McHenry County.
¶ 52 Affirmed.
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