People v. Roberson

Opinion

NO. 4-07-0864 Filed 5/13/10

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) Sangamon County NED L. ROBERSON, ) No. 05CF1388 Defendant-Appellant. ) ) Honorable ) Leo J. Zappa, Jr., ) Judge Presiding. _________________________________________________________________

JUSTICE APPLETON delivered the opinion of the court:

In June 2007, a jury convicted defendant, Ned L.

Roberson, of aggravated criminal sexual abuse (720 ILCS 5/12-

16(d) (West 2004)) and indecent solicitation of a child (720 ILCS

5/11-6(a) (West 2004)). In August 2007, the trial court sen-

tenced him to concurrent terms of 2 years’ probation with 180

days in jail on each conviction.

Defendant appealed, arguing (1) the trial court erred

in failing to question the jurors during voir dire about their

understanding of defendant’s right to not testify; (2) the court

erred in granting the State’s motion in limine barring evidence

the victim had made prior false accusations; (3) the court erred

in allowing the State to present propensity evidence of an

alleged prior sexual assault; (4) the State failed to prove

beyond a reasonable doubt defendant was five years older than the

victim; (5) the written judgment order should be corrected to reflect the sentence pronounced by the court; and (6) defendant

should not be required to pay the State’s Attorney fee as costs

of appeal. In February 2009, this court affirmed as modified and

remanded with directions. People v. Roberson, No. 4-07-0864

(February 18, 2009) (unpublished order under Supreme Court Rule

23).

The Supreme Court of Illinois denied defendant’s

petition for leave to appeal but issued a supervisory order

(People v. Roberson, 233 Ill. 2d 588, 914 N.E.2d 488 (2009)

(nonprecedential supervisory order on denial of petition for

leave to appeal) (No. 108125)) directing this court to vacate our

order and to reconsider in light of People v. Glasper, 234 Ill.

2d 173, 917 N.E.2d 401 (2009). In accordance with the supreme

court’s directions, we vacated our prior judgment and reconsider

in light of Glasper to determine whether a different result is

warranted. We again affirm as modified and remand with direc-

tions.

I. BACKGROUND

According to H.G.’s testimony, on October 4, 2005,

defendant asked her to help him "move a chest from his house."

H.G. said she would check with her mother. H.G. was 16 years of

age and had known defendant since she was in the fifth grade.

Defendant had worked as a teacher’s aide at her schools. H.G.’s

mother said she wanted to speak with defendant first. H.G.

- 2 - called her mother from defendant’s cell phone. H.G. heard

defendant say he knew her grandma, cousins, and sister. H.G.’s

mother gave her permission, provided H.G. came home in half an

hour.

As H.G. walked up the stairs to defendant’s apartment,

defendant slapped her "butt." Once in defendant’s apartment, he

began asking H.G. to have sex. Although she said no, defendant

continued to ask. When H.G. walked to the door, defendant asked

for a hug. H.G. hugged defendant because she was attempting to

leave. H.G. testified, "I was trying to get out of there, and he

pulled me in closer and grabbed my butt again and asked me again

to have sex with him." When H.G. told defendant she wanted to

leave, defendant said he knew she had time and did not have to be

home yet.

H.G. started down the stairs, but defendant got in

front of her and told her to hug him like she meant it. Again,

H.G. hugged defendant because she was attempting to leave. H.G.

testified, "I hugged him, but I tried to keep my body away from

him, and he pulled me closer again." H.G. again told defendant

she wanted to leave.

Defendant followed H.G. to her car. H.G. started her

vehicle, but defendant reached inside. Defendant asked H.G. to

have sex with him several more times, saying his "dick was bigger

than her boyfriend’s." She testified defendant told her if she

- 3 - would not have sex with him she should at least "let him see."

When H.G. refused, defendant reached in the car and grabbed

H.G.’s crotch outside her pants.

According to H.G., defendant told her this was going to

be their "secret." H.G. testified defendant "made me promise

that I wouldn’t tell anybody." H.G. promised defendant she would

not say anything because she wanted to leave. H.G. drove away

and went straight home.

H.G.’s mother testified to her phone conversation with

defendant regarding defendant’s request that H.G. help him move.

H.G.’s mother also testified defendant assured her he knew her

family members and that H.G. would be home shortly.

H.G.’s testimony was also corroborated by her ability

to provide an accurate description of defendant’s apartment,

which defendant testified H.G. had never been inside.

Defendant testified he had known H.G. for six to eight

years and that they got "along okay." On October 4, 2005,

defendant was sitting in his vehicle at Shop N Save grocery store

when H.G. approached him. She asked defendant if he would ask

her mother if she could help him move. Defendant replied "I’ve

done moved it." H.G. called her mother and asked defendant to

speak with her. Defendant testified he spoke with H.G.’s mother

and told her "he was pretty much done with moving." Defendant

told H.G.’s mother H.G. was too small and he did not need her

- 4 - help.

According to defendant’s testimony, H.G. then asked

defendant if he could "get [her] some weed." When defendant told

her no, she "looked at [him] real funny and got in the car and

drove off." Defendant testified, "I guess she could have been

angry."

In June 2007, a jury convicted defendant of aggravated

criminal sexual abuse and indecent solicitation of a child. The

trial court sentenced defendant as stated. Defendant filed

motions to reconsider sentence, reconsider the denial of defen-

dant’s posttrial motions, and a motion in arrest of judgment, all

of which the court denied.

We affirmed as modified and remanded with directions

(People v. Roberson, No. 4-07-0864 (February 18, 2009) (unpub-

lished order under Supreme Court Rule 23)), and the supreme court

denied defendant’s petition for leave to appeal but directed this

court to vacate our judgment and to reconsider in light of

Glasper.

II. ANALYSIS

A. Rule 431(b)

As a threshold matter, we note our prior order in this

case relied on this court’s reasoning in People v. Stump, 385

Ill. App. 3d 515, 896 N.E.2d 904 (2008). However, following its

decision in Glasper, the supreme court issued a supervisory order

- 5 - therein (People v. Stump, 233 Ill. 2d 592, 914 N.E.2d 490 (2009)

leave to appeal) (No. 107508)) directing this court to vacate its

opinion and reconsider its decision in light of Glasper--despite

Glasper's application of prior Rule 431 and Stump's application

of the amended rule.

On appeal in the instant case, defendant initially

argues he is entitled to a new trial because the trial court

failed to comply with Rule 431(b). Specifically, defendant

contends the court erred by failing to allow the venire members

an opportunity to respond to or be questioned about their under-

standing of defendant’s right to not testify as required by Rule

431(b). See People v. Zehr, 103 Ill. 2d 472, 477-78, 469 N.E.2d

1062, 1064 (1984).

1. Forfeiture

In this case, defendant’s trial counsel did not object

at the time of the trial court’s error. In addition, defendant’s

posttrial motion did not allege the court failed to comply with

Rule 431(b). As a result, the issue has been forfeited. See

People v. Hestand, 362 Ill. App. 3d 272, 279, 838 N.E.2d 318, 324

(2005). Defendant, however, argues the court's failure to comply

with Rule 431(b) constitutes plain error affecting his substan-

tial right to a fair trial by an impartial jury.

2. Plain-Error or Harmless-Error Analysis

- 6 - A plain-error analysis applies where the defendant

fails to make a timely objection in the trial court, while a

harmless-error analysis applies where the defendant timely

objects to the error. People v. Johnson, 388 Ill. App. 3d 199,

203, 902 N.E.2d 1265, 1268 (2009). Because defendant failed to

preserve the trial court’s error, we analyze the error under the

plain-error doctrine.

3. Plain-Error Analysis

A reviewing court may disregard a defendant's forfei-

ture and review the issue under the plain-error doctrine to

determine whether reversal is required. People v. Lewis, 234

Ill. 2d 32, 42, 912 N.E.2d 1220, 1226 (2009). The plain-error

doctrine allows a reviewing court to consider forfeited error

when (1) the evidence is closely balanced or (2) the error is so

serious that it affected the fairness of the defendant's trial

and challenged the integrity of the judicial process, regardless

of the closeness of the evidence. People v. Walker, 232 Ill. 2d

113, 124, 902 N.E.2d 691, 697 (2009). Under either prong of the

plain-error analysis, however, the defendant has the burden of

persuasion. Lewis, 234 Ill. 2d at 43, 912 N.E.2d at 1227.

We note that defendant does not argue that the evidence

was closely balanced. Instead, defendant contends that the error

was so serious that it deprived him of a fair trial. As a

result, we confine our review to the second prong of the plain-

- 7 - error analysis. See People v. Alexander, 396 Ill. App. 3d 563,

574, 919 N.E.2d 1016, 1026 (2009). However, before we can

determine whether defendant was deprived of a fair trial, we must

first determine whether any error occurred. People v.

Piatkowski, 225 Ill. 2d 551, 565, 870 N.E.2d 403, 411 (2007).

4. Standard of Review

"The supreme court's rules are not aspirational;

rather, they have the force of law." People v. Young, 387 Ill.

App. 3d 1126, 1127, 903 N.E.2d 434, 435 (2009), citing Bright v.

Dicke, 166 Ill. 2d 204, 210, 652 N.E.2d 275, 277-78 (1995). This

court reviews de novo a trial court’s compliance, or lack

thereof, with a supreme court rule. Young, 387 Ill. App. 3d at

1127, 903 N.E.2d at 435.

5. Rule 431(b)

In Zehr, the Supreme Court of Illinois held a trial

court erred during voir dire by refusing defense counsel's

request to ask questions about (1) the State's burden of proof,

(2) defendant's right to not testify, and (3) the presumption of

innocence. Zehr, 103 Ill. 2d at 477-78, 469 N.E.2d at 1064.

The supreme court amended Rule 431(b) to assure compli-

ance with its decision in Zehr. Adopted March 21, 2007, and

effective May 1, 2007, the rule now reads as follows:

"(b) The court shall ask each potential

- 8 - juror, individually or in a group, whether

that juror understands and accepts the fol-

lowing principles: (1) that the defendant is

presumed innocent of the charge(s) against

him or her; (2) that before a defendant can

be convicted the State must prove the defen-

dant guilty beyond a reasonable doubt; (3)

that the defendant is not required to offer

any evidence on his or her own behalf; and

(4) that the defendant's failure to testify

cannot be held against him or her; however,

no inquiry of a prospective juror shall be

made into the defendant's failure to testify

when the defendant objects.

The court's method of inquiry shall

provide each juror an opportunity to respond

to specific questions concerning the princi-

ples set out in this section." (Emphases

added.) Official Reports Advance Sheet No. 8

(April 11, 2007), R. 431(b), eff. May 1,

2007.

The committee comments provide as follows:

"The new language is intended to ensure

compliance with the requirements of People v.

- 9 - Zehr, 103 Ill. 2d 472[, 469 N.E.2d 1062]

(1984). It seeks to end the practice where

the judge makes a broad statement of the

applicable law followed by a general question

concerning the juror’s willingness to follow

the law." 177 Ill. 2d R. 431(b), Committee

Comments, at lxxix.

As of May 1, 2007, the plain language of Rule 431(b)

requires a trial court to sua sponte question each potential

juror as to whether he understands and accepts the Zehr princi-

ples in a manner that allows each juror an opportunity to re-

spond. Compliance with Rule 431(b) is mandatory. People v.

Owens, 394 Ill. App. 3d 147, 152, 914 N.E.2d 1280, 1284 (2009).

As the voir dire in this case occurred in June 2007, after the

amendment became effective, the court was required to comply with

the rule as amended May 1, 2007.

6. Admonitions and Instructions

In this case, the trial court instructed prospective

jurors on three of the four Zehr principles before selecting

panelists for questioning. At the beginning of voir dire, prior

to the jurors being sworn in, the court addressed the pool as

follows:

"Under the law, the [d]efendant is pre-

sumed to be innocent of the charges against

- 10 - him, and this presumption remains with him

throughout every stage of the trial and dur-

ing your deliberations on the verdict. This

presumption of innocence is not overcome

unless from all evidence in the case you are

convinced beyond a reasonable doubt that the

[d]efendant is guilty.

The State has the burden of proving the

guilt of the [d]efendant beyond a reasonable

doubt, and this burden remains on the State

throughout the trial. The [d]efendant is not

required to prove his innocence, nor is [de-

fendant] required to present any evidence on

his behalf. He may rely on the presumption

of innocence." (Emphases added.)

During voir dire, the trial court asked the first panel

of prospective jurors the following:

"[D]o all of you understand that a per-

son accused of a crime is presumed to be in-

nocent of the charges against him, and this

presumption of innocence stays with the

[d]efendant throughout the trial and is not

overcome unless from all the evidence you

believe the State has proved his guilt beyond

- 11 - a reasonable doubt? That means the State has

the burden of proving the [d]efendant’s guilt

beyond a reasonable doubt, the [d]efendant

does not have to prove his innocence, the

[d]efendant does not have to present any evi-

dence on his own behalf.

Does anyone *** have any disagreements

with those principles of law? If you do,

raise your hand." (Emphasis added.)

Four jurors were selected from the first panel. The second panel

of prospective jurors were questioned as follows:

"A person accused of a crime is presumed

to be innocent of the charges against him,

and that presumption of innocence stays with

him throughout the trial and is not overcome

unless from all the evidence you believe the

State proved his guilt beyond a reasonable

doubt, and that means that the State has the

burden of proving the [d]efendant’s guilt

beyond a reasonable doubt. The [d]efendant

does not have to prove his innocence. The

Does anyone *** have a disagreement with

- 12 - these principles of law? If you do, raise

your hand." (Emphasis added.)

Seven jurors were selected from the second panel. The court

addressed the next panel of prospective jurors as follows:

sumed innocent of the charges against him,

and that presumption remains with him

throughout every stage of this trial and dur-

ing your deliberations. This presumption of

innocence is not overcome unless from all the

evidence in the case[,] you are convinced

beyond a reasonable doubt that the

required to prove his innocence, nor is he

required to present any evidence on his own

behalf. He may rely on his presumption of

innocence." (Emphasis added.)

The court then addressed the final panel as follows:

to be innocent of the charge against him, and

- 13 - this presumption of innocence stays with him

throughout the trial and is not overcome un-

less from all the evidence you believe the

doubt, and that means that the State in this

case has the burden of proving the

[d]efendant’s guilt beyond a reasonable

doubt.

The [d]efendant does not have to prove

his innocence. He does not have to present

any evidence on his own behalf.

Anyone *** have any disagreement with

these principles of law; if so, raise your

hands." (Emphasis added.)

One juror and two alternates were selected from the final panel.

Prior to deliberations, the jury also received Illinois

Pattern Jury Instructions, Criminal, No. 2.03 (4th ed. 2000)

(hereinafter IPI Criminal 4th), regarding the presumption of

innocence, the State’s burden of proof, and that defendant was

not required to prove his innocence. However, the jury was not

given IPI Criminal 4th No. 2.04 regarding defendant’s decision

not to testify.

Thus, the record shows the trial court did not fully

comply with Rule 431(b) because it only questioned prospective

- 14 - jurors about three of the four Zehr principles. Specifically,

the court did not ask prospective jurors whether they understood

and accepted that defendant's decision not to testify cannot be

held against him. We hold that the court's failure to strictly

comply with the rule was error.

7. Does the Error Require Automatic Reversal

Having found error, we must now determine whether the

error was so serious that it affected the fairness of defendant's

trial.

In this case, none of the jurors selected were specifi-

cally asked about their understanding of defendant’s right not to

testify. However, defendant testified at trial. Because defen-

dant testified, the question of whether the jury was properly

admonished concerning his right not to testify is a nonissue.

See People v. Brooks, 175 Ill. App. 3d 136, 143 n.1, 529 N.E.2d

732, 737 n.1 (1988) (First District, "Defendant testified at

trial, so the question of his right not to testify is not an

issue in this case"). We note that even if a juror was inclined

to hold defendant's decision not to testify against him, any

potential bias in that regard was alleviated when defendant took

the stand and testified.

In applying Glasper to the facts of this case, we find

the trial court's error was not of such magnitude to warrant a

new trial. In Glasper, the supreme court addressed whether a

- 15 - trial court's failure to comply with prior Rule 431(b) requires a

reviewing court to presume prejudice and automatically reverse a

defendant's conviction. Glasper, 234 Ill. 2d at 189, 917 N.E.2d

at 411-12. While the court held the trial court erred by not

fully complying with Rule 431(b), it declined to find that a

violation of Rule 431(b) is per se reversible error. Glasper,

234 Ill. 2d at 194, 917 N.E.2d at 414. Instead, the court found

that automatic reversal was only required when an error was found

to be "'structural,' i.e., a systemic error [that] serves to

'erode the integrity of the judicial process and undermine the

fairness of the defendant's trial.'" Glasper, 234 Ill. 2d at

197-98, 917 N.E.2d at 416, quoting People v. Herron, 215 Ill. 2d

167, 186, 830 N.E.2d 467, 479 (2005).

The supreme court found that a trial court’s failure to

question a venire regarding a defendant’s failure to testify does

not involve a fundamental right or a constitutional protection.

Glasper, 234 Ill. 2d at 193, 917 N.E.2d at 413. Rather, the

court found the error in Glasper "involves a right made available

only by rule of [the Illinois Supreme Court]." Glasper, 234 Ill.

2d at 193, 917 N.E.2d at 413-14. The court also stated that

"[t]he violation of a [s]upreme [c]ourt [r]ule does not mandate

reversal in every case." Glasper, 234 Ill. 2d at 193, 917 N.E.2d

at 414. As a result, the error was not "structural" but instead

(given defense counsel’s request for admonition and apparent

- 16 - objection) subject to a harmless-error analysis. Glasper, 234

Ill. 2d at 200, 917 N.E.2d at 418.

We recognize the supreme court did not consider whether

amended Rule 431 would have affected the outcome of Glasper. See

Glasper, 234 Ill. 2d at 200, 917 N.E.2d at 418 (emphasizing "that

this holding is limited to the version of Rule 431(b)(4) that was

in effect at the time of the instant trial, and would not neces-

sarily apply to subsequent versions of the rule"). However, we

find the distinction between the two versions of the rule is

without a difference as applied here and does not preclude appli-

cation of the Glasper analysis to this case. See People v.

Magallanes, 397 Ill. App. 3d 72, 92, 921 N.E.2d 388, 405 (2009)

(First District, finding no "quantitative or qualitative differ-

ence between the trial court failing to admonish jurors when

requested to do so, as in Glasper, and when the trial court fails

to admonish jurors under the amended rule"); see also People v.

Amerman, 396 Ill. App. 3d 586, 594-95, 919 N.E.2d 1068, 1075

(2009) (Third District, finding the Glasper analysis applied to a

plain-error analysis involving the amended version of the rule);

Alexander, 396 Ill. App. 3d at 575, 919 N.E.2d at 1026 (Third

District, finding Glasper’s rationale applicable to the second

prong of the plain-error analysis).

After considering the issue in light of Glasper, we

find the trial court did not fully comply with Rule 431(b) and

- 17 - that failure to comply constituted error. However, because

defendant testified, we cannot say the court’s failure to ques-

tion jurors about defendant’s right not to testify was so serious

that it affected the fairness of his trial. See Magallanes, 397

Ill. App. 3d at 99, 921 N.E.2d at 412. As a result, we conclude

the court’s error did not amount to plain error, i.e., the

court's error was harmless beyond a reasonable doubt.

B. State’s Motion In Limine

Defendant next argues the trial court erred in granting

the State’s motion in limine barring evidence the victim had made

prior false accusations of sexual assault against other teachers.

Specifically, defendant contends the evidence showed the victim

had a motive to lie and possessed an improper interest in or bias

against defendant because he was a teacher’s assistant. Defen-

dant maintains the evidence sought to be introduced would show

the victim’s bias against those in authority, like defendant.

1. Motion In Limine

During defense counsel’s opening statement, counsel

told the jury "you may hear evidence *** of accusations against

other teachers, persons, about this troubled youth." The State

then filed a motion in limine requesting defendant be barred from

presenting any evidence or cross-examining any witness concerning

alleged prior false allegations of sexual abuse made by the

- 18 - victim.

Defendant argued the evidence showed motive and bias to

testify falsely against defendant and also to show the victim was

a troubled youth. The State argued that even if the victim

previously made false allegations of sexual abuse against another

person, such evidence is not admissible for impeachment of the

victim unless defendant can show the allegations demonstrate

bias, interest, or prejudice concerning defendant.

The trial court ruled that unless defendant could

connect such evidence to a bias or interest against defendant,

the evidence would not be permitted.

2. Standard of Review

A trial court's evidentiary determinations regarding a

motion in limine will not be disturbed absent an abuse of discre-

tion. In re Leona W., 228 Ill. 2d 439, 460, 888 N.E.2d 72, 83

(2008). A party forfeits review of his challenge to the trial

court's granting of a motion in limine when he fails to make an

offer of proof. People v. Evans, 373 Ill. App. 3d 948, 966, 869

N.E.2d 920, 937 (2007) ("[f]ailing to make an adequate offer of

proof results in a [forfeiture] of the issue on appeal").

While a formal offer of proof is generally required, an

informal offer of proof consisting of counsel’s summary of what

the proposed evidence might prove may be sufficient if specific

and not based on speculation or conjecture. People v. Tabb, 374

- 19 - Ill. App. 3d 680, 689, 870 N.E.2d 914, 923-24 (2007) (First

District).

3. Defendant’s Offer of Proof

Following the presentation of the State’s witnesses,

defense counsel represented that he had subpoenaed witnesses who

would have testified H.G.

"made false accusations to other teachers,

that she in fact caused, at least that’s what

it appears to me, one teacher to quit after a

false allegation, that she has e-mailed, did

e-mail another teacher a request for sex on

an e-mail, that she has been disruptive in

school, that she is not permitted to be in

the hallway[.] *** That would be the

witnesses I would present."

Defendant’s counsel then informed the trial court that

he called off those witnesses because he did not want to "waste

judicial time" bringing them in to testify and making an offer of

proof. Instead, he asked the court to accept his representation

of their testimony as to the offer of proof. The court responded

by stating the following: "Sure, to preserve your record. I’ve

already made my ruling, and I appreciate you putting that on the

record." However, the court did not reverse its previous ruling

that the evidence would not be permitted unless defense counsel

- 20 - could connect the evidence to a bias against this defendant.

Defendant preserved the issue by including it in his posttrial

motion.

4. No Error in Excluding Evidence

Here, the State argues defense counsel’s offer of proof

was not sufficiently specific. We agree. Cross-examination to

show bias, interest, or motive to testify falsely is a matter of

right. People v. Triplett, 108 Ill. 2d 463, 475, 485 N.E.2d 9,

15 (1985). However, to be admissible, "'the evidence used must

not be remote or uncertain.’" People v. Cookson, 215 Ill. 2d

194, 215, 830 N.E.2d 484, 496 (2005), quoting People v. Bull, 185

Ill. 2d 179, 206, 705 N.E.2d 824, 838 (1998).

Here, defense counsel’s offer of proof neither provided

the names of the potential witnesses nor explicitly stated what

their testimony would reveal. In addition, the offer of proof

did not indicate when or to whom the alleged prior false allega-

tions were made. Further, defense counsel’s offer of proof did

not demonstrate H.G. possessed any potential bias against or

motive to lie about abuse by this defendant. See Cookson, 215

Ill. 2d at 218, 830 N.E.2d at 498 (supreme court finding sexual-

abuse accusations were properly excluded absent a demonstration

of improper interest, bias, or motive to lie about the defen-

dant). Accordingly, defendant failed to properly connect the

allegations to a bias or interest against him.

- 21 - We find the trial court correctly concluded the evi-

dence does not establish H.G.’s bias against this defendant.

Further, the speculative nature of the evidence made it inadmis-

sible to show H.G.’s bias against defendant. See Bull, 185 Ill.

2d at 206-07, 705 N.E.2d at 838. Given the State’s argument at

the hearing on the motion in limine and the court’s ruling at

that time, the informal offer of proof summarizing the proposed

evidence was inadequate to demonstrate the error of which he now

complains on appeal. As a result, we find no abuse of the

court’s discretion in excluding evidence relating to H.G.’s

accusations against other teachers.

C. Propensity Evidence

Defendant next contends the trial court erred when it

allowed the State to present evidence of an alleged prior sexual

assault. Specifically, defendant argues the propensity evidence

was prejudicial as the incident was factually dissimilar and took

place almost 10 years earlier.

According to Springfield police officer Dan Szabados’

testimony, on November 18, 1997, he approached an improperly

parked car. Szabados saw defendant and C.M. in the "backseat of

the car putting their pants back on." Defendant stated he and

C.M. were just kissing. Szabados testified defendant believed

C.M. was 17 years of age. Szabados also testified he believed

defendant was 31 years of age. Defendant was taken to the police

- 22 - station and interviewed. Defendant’s written and signed state-

ment was read to the jury and admitted into evidence over defen-

dant’s objection. The statement provided as follows:

"I met [C.M.] sometime over the summer

at Family Dollar on North Grand. I was driv-

ing by, and she flagged my down. She was

with a tall black kid that was her next-door

neighbor. I was with my friend, Anthony

Grant. We talked a little bit at Family Dol-

lar and then walked to the park. Nothing

happened that night.

I saw [C.M.] again about a week later.

We talked for about 15 minutes. We were by

the Family Dollar. [C.M.] had told me she

was 18 years old.

I met [C.M.] sometime before the fair.

I met her at Family Dollar. She got in my

car and [we] drove around a little bit. I

drove out by the airport. We ended up at the

Brown Bomber. We had talked about sex. I

put a condom on, and she said she didn’t like

having sex with a condom. I kept it on, and

when I started to penetrate, she said ’ouch’

a couple of times. The act took a couple of

- 23 - minutes, and then we stopped. *** I then

drove her home and dropped her off at Family

Dollar.

On two other occasions I drove [C.M.] to

an area north of Browning Road. We kissed

and hugged but didn’t do anything else. I

have only touched [C.M.’s] breasts twice,

once at the Brown Bomber and tonight. Both

times I was touching her outside her clothes.

During our friendship[,] I began to wonder if

she had told me the truth about her age.

While we were at the park tonight, I knew she

was probably not 18."

According to C.M.’s testimony, she was 14 years of age

when defendant had sexual intercourse with her. C.M. testified

defendant had sex with her at least three or four times in his

apartment. C.M. also testified defendant had sex with her after

the police caught them.

At common law, evidence of a defendant's other crimes

or bad acts is inadmissible to prove the defendant's propensity

to commit crime. People v. Reed, 361 Ill. App. 3d 995, 999, 838

N.E.2d 328, 331 (2005). However, under section 115-7.3(b) of the

Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-7.3(b)

(West 2004)), uncharged sex offenses are admissible to prove the

- 24 - defendant's propensity to commit the charged sex offense if three

conditions are met. Reed, 361 Ill. App. 3d at 999, 838 N.E.2d at

331-32, citing People v. Donoho, 204 Ill. 2d 159, 176, 788 N.E.2d

707, 718 (2003).

"First, the uncharged sex offense must be

'otherwise admissible under the rules of evi-

dence' [citation]--'otherwise' meaning but

for the common-law prohibition of propensity

evidence [citation]. 'Thus, evidence that is

normally inadmissible, such as hearsay evi-

dence, remains inadmissible.' [Citation.]

Second, the 'probative value of the evidence'

must outweigh its 'undue prejudice,' consid-

ering such factors as 'proximity in time' and

'the degree of factual similarity.' [Cita-

tion.] Third, the State must 'disclose the

evidence *** at a reasonable time in advance

of trial, or during trial if the court ex-

cuses pretrial notice on good cause shown.'

[Citation.]" Reed, 361 Ill. App. 3d at 999,

838 N.E.2d at 332.

Here, defendant was accused of aggravated criminal

sexual abuse and indecent solicitation of a child. Defendant's

prior actions constitute an uncharged sex offense to which sec-

- 25 - tion 115-7.3 pertains. See 725 ILCS 5/115-7.3(a)(1) (West 2004)

("[Section 115-7.3] applies to criminal cases in which *** defen-

dant is accused of *** aggravated criminal sexual abuse").

Therefore, evidence defendant previously committed aggravated

criminal sexual abuse may be admissible for its bearing on any

matter to which it is relevant. See 725 ILCS 5/115-7.3(b) (West

2004). Evidence is "relevant" if it has any tendency to make the

existence of a fact that is of consequence to the determination

of the action more or less probable than it would be without the

evidence. People v. Alsup, 373 Ill. App. 3d 745, 759, 869 N.E.2d

157, 170 (2007).

Despite defendant’s claim to the contrary, the previous

offense in this case had a threshold factual similarity to the

charged offense in that both incidents involved (1) girls between

14 and 16 years of age, (2) defendant wanting to have sexual

intercourse with the minor girls, (3) defendant fondling outside

the minors’ clothing, and (4) defendant assaulting the minors in

his apartment.

Defendant also contends the previous incident is too

remote as it took place almost 10 years before the charged inci-

dent. However, the supreme court has found no abuse of discre-

tion in admitting evidence of a sex offense that preceded the

charged offense by 12 to 15 years. Donoho, 204 Ill. 2d at 184,

788 N.E.2d at 722.

- 26 - In addition, on January 5, 2007, the State filed a

notice of intent to use evidence of other sex offenses pursuant

to section 115-7.3. The jury trial began on June 12, 2007.

Moreover, defendant does not claim to have received untimely

notice of the intent to introduce evidence concerning the alleged

previous offense.

Because the conditions set forth in section 115-7.3

have been met, evidence of defendant's uncharged act was admissi-

ble. As a result, we find no abuse of discretion in the trial

court’s decision to admit evidence of the prior, uncharged inci-

dent of aggravated criminal sexual abuse.

D. Sufficiency of the Evidence

Defendant next argues the State's evidence was insuffi-

cient to prove beyond a reasonable doubt he was five years older

than H.G. We disagree.

When considering a challenge to the sufficiency of the

evidence, the relevant question is "whether, after viewing the

evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt." People v. Carpenter, 228

Ill. 2d 250, 265, 888 N.E.2d 105, 114 (2008). The appellate

court's function is not to retry the defendant. People v.

Slinkard, 362 Ill. App. 3d 855, 857, 841 N.E.2d 1, 3 (2005). A

conviction will stand unless "the evidence is so unreasonable,

- 27 - improbable, or unsatisfactory that it justifies a reasonable

doubt of defendant's guilt." People v. Wheeler, 226 Ill. 2d 92,

115, 871 N.E.2d 728, 740 (2007).

Due process requires that to sustain a conviction of a

criminal offense, the State must prove defendant guilty of every

element of an offense beyond a reasonable doubt. People v.

Cunningham, 212 Ill. 2d 274, 278, 818 N.E.2d 304, 307 (2004).

However, the State may properly rely on inferences in proving

those elements. People v. Woodrum, 223 Ill. 2d 286, 308, 860

N.E.2d 259, 274 (2006). Under section 12-16(d) of the Criminal

Code of 1961, a person "commits aggravated criminal sexual abuse

if [(1)] he or she commits an act of sexual penetration or sexual

conduct with [(2)] a victim who was at least 13 years of age but

under 17 years of age and [(3)] the accused was at least 5 years

older than the victim." 720 ILCS 5/12-16(d) (West 2004). In

this case, the victim was 16 years old. Thus, the State had to

prove beyond a reasonable doubt defendant was at least 21 years

old.

The State's evidence of defendant's age consisted of

defendant’s signed written statement from 1997 stating he was 31

years of age at the time the previous alleged abuse took place.

Moreover, defendant’s statement lists his date of birth as April

11, 1966, which would make defendant 39 years old as of the date

of the current offense. In addition, the State offered into

- 28 - evidence a transcript of defendant’s October 2005 interview with

police. According to that transcript, defendant’s birth date was

April 11, 1966. In addition, H.G. testified she had known defen-

dant since she was in the fifth grade when defendant was a

teacher at her school. Testimony also showed defendant had

worked at various schools in Springfield for 12 years. Defendant

admitted knowing H.G. since she was in the fifth grade. Accord-

ing to defendant’s testimony, he drove a car and went to a bar in

1997. Moreover, Szabados testified he determined defendant to be

31 years old in 1997.

In support of its argument, the State cites People v.

Dalton, 91 Ill. 2d 22, 434 N.E.2d 1127 (1982). There, the su-

preme court addressed the rule established by the cases of

Wistrand v. People, 213 Ill. 72, 79, 72 N.E. 748, 750 (1904), and

People v. Rogers, 415 Ill. 343, 348, 114 N.E.2d 398, 401 (1953),

that the State had to produce corroborating evidence of a defen-

dant's admission of age when age is a necessary element of the

corpus delicti of the offense. Dalton, 91 Ill. 2d at 27-30, 434

N.E.2d at 1130-31. The Dalton court held the defendant's state-

ment of his date of birth was admissible without corroboration

and overruled Wistrand and Rogers. Dalton, 91 Ill. 2d at 30, 434

N.E.2d at 1131. In its analysis, the supreme court noted that,

in the cases of Wistrand and Rogers, it would have been inclined

to hold the jury's observation of the defendants, who were con-

- 29 - siderably over the statutory age, was sufficient corroboration.

Dalton, 91 Ill. 2d at 29, 434 N.E.2d at 1130.

Here, the jury was also able to observe defendant as he

testified. As a result, we find the jury’s observation of defen-

dant would allow it to determine whether the aforementioned

information was sufficient to prove beyond a reasonable doubt

defendant was five years older than H.G.

Accordingly, we find the State's evidence was suffi-

cient to prove beyond a reasonable doubt the five-year-age-dif-

ference element.

E. Correction of Written Sentencing Order To Conform to Pronounced Sentence

Defendant argues and the State concedes the trial

court’s written judgment order should be corrected to reflect

the court sentenced defendant to concurrent terms of two years’

probation. We agree.

When the oral pronouncement of the court and the writ-

ten order conflict, the oral pronouncement of the court controls.

People v. Smith, 242 Ill. App. 3d 399, 402, 609 N.E.2d 1004, 1006

(1993) (the oral pronouncement of the court is the judgment of

the court while the written order merely serves as evidence of

the court’s judgment).

Here, the trial court’s written order of the conditions

of probation states defendant’s sentence term is "4 years," from

August 17, 2007, to August 17, 2011. The docket entry also

- 30 - states defendant was sentenced to "4 years[’] probation." How-

ever, at sentencing, the court stated, "I’m going to sentence you

to two years[’] probation, six months in the Sangamon County

[j]ail." On the record before us, the written order is inconsis-

tent with the court’s oral pronouncement. As a result, the

court’s oral pronouncement is controlling. Accordingly, we find

the written judgment order must be corrected to reflect that the

court sentenced defendant to concurrent terms of two years’

probation.

F. State’s Attorney Fee for Appeal Costs

Defendant argues we should reject the State’s request

to assess costs to defendant for pursuing this appeal because the

statute does not allow recovery from a defendant who has pre-

vailed on appeal. We disagree.

It is well settled that "[t]he successful defense of

any part of a criminal judgment challenged on appeal entitles the

State to a per diem fee and costs for its efforts." People v.

Smith, 133 Ill. App. 3d 613, 620, 479 N.E.2d 328, 333 (1985); see

also People v. Nicholls, 71 Ill. 2d 166, 178-79, 374 N.E.2d 194,

199 (1978). Accordingly, because the State successfully defended

a portion of the criminal judgment, including the day of oral

argument, we find the State is entitled to its $75 statutory

assessment. See People v. Williams, 235 Ill. 2d 286, 297, 920

N.E.2d 1060, 1066 (2009) ("because [the] defendant remained a

- 31 - convicted defendant following the appellate court’s resolution of

his appeal, the court properly allowed the State’s fee request").

III. CONCLUSION

For the reasons stated, we affirm the trial court's

judgment as modified. We remand with directions for issuance of

a modified written judgment order reflecting defendant’s concur-

rent sentences of two years’ probation. As part of our judgment,

we grant the State its $75 statutory assessment against defendant

as costs of this appeal.

Affirmed as modified and remanded with directions.

MYERSCOUGH, P.J., and POPE, J., concur.

- 32 -