People v. Pelo

Filed 10/6/10 NO. 4-08-0758

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
JEFFREY PELO, ) Nos. 06CF581
Defendant-Appellant. ) 06CF679
)
) Honorable
) Robert L. Freitag,
) Judge Presiding.
_________________________________________________________________

JUSTICE STEIGMANN delivered the opinion of the court:

In June 2006, the State charged defendant, Jeffrey

Pelo, a Bloomington police sergeant, with 37 counts of criminal

conduct originating from two separate cases (McLean County case

Nos. 06-CF-581 and 06-CF-679). Specifically, the State alleged

that between December 2002 and June 2006, defendant committed a

series of crimes involving the stalking, intimidation, home

invasion, residential burglary, unlawful restraint, and aggra-

vated criminal sexual assault of five women from the Bloomington-

Normal community.

In June 2008, a jury convicted defendant of all 37

counts. Following an August 2008 sentencing hearing at which the

trial court (1) merged several of defendant's convictions pursu-

ant to the one-act, one-crime rule and (2) imposed several

statutorily mandated sentencing enhancements, the court sentenced
defendant to a series of consecutive terms of imprisonment,

totaling 440 years.

Defendant appeals, arguing that (1) the trial court

erred by (a) allowing the State to introduce into evidence dozens

of exhibits involving, among other things, graphic pornographic

images and text, including depictions of rape, found in defen-

dant's home computer, (b) denying his motion for change of venue,

(c) excluding the testimony of his expert witness, and (d)

failing to question jurors regarding the presumption that he was

innocent until proven guilty; (2) the State failed to prove

beyond a reasonable doubt that he sexually assaulted one of the

victims, A.M.; and (3) his sentencing enhancements for the

aggravated criminal sexual assaults against victims K.H., A.L.,

and S.K. violate the proportionate-penalties clause of the

Illinois Constitution (Ill. Const. 1970, art. I, §11). Because

we agree only that defendant's last argument requires remand, we

affirm in part, vacate in part, and remand with directions.

I. BACKGROUND

A. The Charges in This Case

1. Case No. 06-CF-581

In June 2006, the State charged defendant with (1)

attempt (residential burglary) (720 ILCS 5/8-4, 19-3(a) (West

2006)), alleging that defendant attempted to gain entry into

J.P.'s residence with the intent to commit a felony or theft and

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(2) stalking (720 ILCS 5/12-7.3(a)(2) (West 2006)), alleging that

defendant "followed and/or surveilled" J.P. on at least two

separate occasions, placing her in reasonable apprehension of

immediate or future bodily harm, sexual assault, confinement, or

restraint. These offenses allegedly occurred in 2005 and 2006.

2. Case No. 06-CF-679

In August 2006, the State charged defendant with 35

counts involving crimes it alleged that he committed against

S.K., A.L., K.H., and A.M., which took place between December

2002 and June 2006.

a. The Counts Involving S.K.

The State charged defendant with home invasion (720

ILCS 5/12-11(a)(1), (a)(3) (West 2006)), in that he entered

S.K.'s home with a firearm and knife, threatening S.K. with the

imminent use of those weapons (counts I and II); aggravated

criminal sexual assault (720 ILCS 5/12-14(a)(1), (a)(8) (West

2006)), in that he sexually penetrated S.K.'s vagina and anus by

the use of force, while armed with a firearm and knife (counts

III through XX); (3) residential burglary (720 ILCS 5/19-3(a)

(West 2006)), in that he entered S.K.'s home with the intent to

commit a felony (count XXI); (4) aggravated unlawful restraint

(720 ILCS 5/10-3.1(a) (West 2006)), in that he unlawfully de-

tained S.K. with a firearm or knife (count XXII); and (5) intimi-

dation (720 ILCS 5/12-6(a)(1) (West 2006)), in that he threatened

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to harm S.K.'s family if she reported the sexual assault (count

XXIII).

b. The Counts Involving A.L.

The State charged defendant with (1) home invasion (720

ILCS 5/12-11(a)(1) (West 2006)), in that he entered A.L.'s home

and threatened her with a knife (counts XXIV); (2) aggravated

criminal sexual assault (720 ILCS 5/12-14(a)(1) (West 2006)), in

that he penetrated A.L.'s vagina, while threatening her with a

knife (count XXV); (3) residential burglary (720 ILCS 5/19-3(a)

(West 2006)), in that he entered A.L.'s home with the intent to

commit a felony (count XXVI); and (4) aggravated unlawful re-

straint (720 ILCS 5/10-3.1(a) (West 2006)), in that he detained

A.L. at knifepoint (count XXVII).

c. The Counts Involving K.H.

The State charged defendant with (1) aggravated crimi-

nal sexual assault (720 ILCS 5/12-14(a)(1), (a)(8) (West 2006)),

in that he sexually penetrated K.H.'s vagina by the use of force,

while armed with a firearm and an object that he led K.H. to

believe was a dangerous weapon (counts XXVIII through XXXI).

d. The Counts Involving A.M.

The State charged defendant with (1) aggravated crimi-

nal sexual assault (720 ILCS 5/12-14(a)(1) (West 2006)), in that

he sexually penetrated A.M.'s vagina by the use of force, while

armed with a knife and an object he led A.M. to believe was a

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dangerous weapon (counts XXXII through XXXV).

In October 2006, the State filed an amended motion for

joinder and consolidation in both cases (case Nos. 06-CF-581 and

06-CF-679), which the trial court later granted.

B. Pretrial Issues in This Case

Prior to defendant's jury trial, which began in May

2008, the trial court addressed, in pertinent part, (1) defen-

dant's request (a) for a change of venue and (b) to limit the

State's evidence and (2) the State's request to bar defendant's

eyewitness-identification expert.

1. Defendant's Request for a Change of Venue

In February 2008, defendant filed a motion for change

of venue, asserting that the "substantial publicity *** in the

local print and electronic media, circulated [and] broadcast [in

the] county, *** aro[used] and incite[d] the passions of the

community to [his] prejudice." Following a March 2008 hearing,

the trial court denied defendant's motion without prejudice,

explaining its ruling as follows:

"[T]he [c]ourt has a duty to *** ensure

that *** defendant receives a fair trial.

That *** includes a trial in front of a fair

and impartial jury. ***

[However], the mere fact that there has

been potentially harmful publicity in the

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community in and of itself *** does not es-

tablish that there is community prejudice

sufficient to warrant a change of [venue].

*** [The court] think[s] it is *** clear ***

that jurors are not required to be completely

ignorant of the case; but rather, *** it must

be shown that the jurors may set aside any

impressions or opinions that they may have

*** and render a verdict based only on the

evidence presented at trial.

***

The other principle *** [that] the

[c]ourt is required to be guided by *** is

that *** examination of the prospective ju-

rors is the best way, the most valuable [way

to] determin[e] whether *** pretrial public-

ity has rendered a fair trial in a certain

location to be impossible.

*** [T]he [c]ourt's belief [is] that

voir dire is intended to do just that, [whic-

h] is to ensure that those jurors who are

selected and sworn to hear the evidence are

not going to be influenced by any pretrial

publicity. ***

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 ***

The [c]ourt does not believe that the

subject matter of publicity [that] has been

presented in this case *** indicates that it

would be impossible to find 12 jurors and

several alternatives *** from this county,

but of course[,] the [c]ourt can't hold that

because we haven't begun the selection of the

jurors yet. ***

For all those reasons, the [c]ourt does

not believe that the granting of a motion for

a change of [venue] is appropriate at this

time. The motion for change of [venue] is

denied. With regard to that motion, of

course, *** defendant has the right to renew

that motion ***."

2. Defendant's Request To Limit the State's Evidence

In November 2007, the State filed a motion in limine,

seeking to use evidence of defendant's "other misconduct," which

included pornography recovered from defendant's home computer, to

show defendant's identity; motive; intent; modus operandi; the

existence of a common scheme, plan, or design; or continuing

narrative. Specifically, the State sought permission to intro-

duce evidence related to case Nos. 06-CF-581 and 06-CF-679--that

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is, evidence of all the charges against defendant and other

related misconduct--interchangeably because all of the incidents

(1) involved (a) similar victims; (b) restraint of the victim;

(c) prior surveillance; (d) the use of similar equipment, tools,

and habiliments; (e) a linear progression of time spent at the

crime scene; and (f) a suspect who was wearing similar clothing,

and (2) occurred at approximately the same time of day.

Defendant broached the other-bad-acts evidence issue at

a hearing on several pending motions, as follows:

"[The State] *** filed a motion to let

it in. [T]he first thing I was going to

address here was that [the State] need[s] to

identify what information they are going to

try to bring in to show identity, motive,

intent, modus operandi, [and] common scheme,

plan[, or] design. ***

I don't know how looking [at] pornogra-

phy is going to tend to identify [defendant]

as the attacker of these women, how it shows

motive, intent, modus operandi, or any other

existence of a common scheme, plan, or de-

sign. I think this motion needs to be ad-

dressed before we go to trial ***."

At a May 2008 hearing, the prosecutor responded as

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follows:

"[I]t is the State's intention to show[-

,] *** through *** images on *** defendant's

computer[,] *** motive, *** intent, *** a

design or resolve ***, [and] modus operandi

***.

* * *

[A]s I have presented to the [c]ourt,

the bullet points from the four sexual as-

saults in this case [(case No. 06-CF-679)],

*** from the way those assaults occurred

[and] the items that we have found and lo-

cated on *** defendant's computer, he was

acting in a very [specific] capacity. ***

[T]he ones that stands out the most [is

K.H.'s]. She was assaulted back on April

4[,] 2003. During that time, *** defendant

had her remove the duct tape that he had

placed on her and instructed her to put her

finger in her vagina, [and] told her to put

in the vibrator ***[.] [H]e also made the

statement [that he wanted] her to do those

acts because it gets him off. When you look

at the images that were located on *** defen-

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dant's computer, the endless streams of indi-

viduals *** having items inserted into them,

*** female masturbation, it was certainly

something that he was interested in [and]

enjoyed watching, not only on the computer,

but also during the acts when these sexual

assaults were committed. Numerous images on

the computer *** are images of foreign ob-

jects being placed inside of the women. And

in *** [S.K.'s] assault[], *** [a] vibrator

was used. He forced her to use her hand.

And, [in the case of A.L.], asked her for sex

toys[,] said he enjoyed penetrating masturba-

tion by women, [and] mentioned a beer bottle

to be used on her. And [the court] can see

images on these exhibits *** where *** beer

bottles *** were being used. In each of the

four assaults [in case No. 06-CF-679] ***

weapons were being displayed ***. ***

[S]pecific graphic images of forced fellatio

[show] *** a knife [being] held to the vic-

tim's head and [in] another a gun is held to

the victim's head. And that[] specifically

happened in these cases. *** I submit to

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the [c]ourt that *** what the images show on

the computer is just as he directed the vic-

tim. This is what he enjoyed. This is what

gets him off, and what he was [looking at] on

the computer [was] the same [thing] he was

doing with these victims.

Again, every one of the victims were

bound, attempted to be bound, ropes around

their necks. *** And when [the court]

look[s] at the images on the computer, just

about every one of the forced sex categories

has the women, not only bound, but [also]

ropes and bindings around their neck. In ***

one video, it showed two women being bound.

[During A.M.'s attack], he was asking con-

stantly about her roommate and asking where

she was at[,] *** comment[ing] *** that if

the roommate was home, he would do the same

thing to her. ***

As for the videos that showed the forced

witness, the State believes that those videos

are important [because] *** each time ***

defendant raped these four victims, he con-

stantly was asking them about boyfriends and

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asking them specifically about others that

they were involved with. And when [S.K.] was

trying to speak with him, trying to show that

she was a human being and not just an object,

she was referring to her upcoming wedding.

And when *** defendant heard this ***, *** he

seemed to get very happy that a third party

was going to be devastated by his actions.

And I think that *** the videos that he was

watching [show that] he did enjoy devastat-

ing, not only his victims, but also the

victim[s'] families and those around [them].

*** And again, *** covers were put over [the

victims'] heads, pillowcases, pillows to

blind them. [There were] numerous images ***

showing the same type of activity. [A]gain,

weapons were used in each [assault], knives

or pistols or, on more than one occasion,

both of those were used. These images[] ***

show a common design, a common scheme in ***

defendant's activities. And we do feel that

they are relevant and more probative than

prejudicial on these select images as to the

conduct of *** defendant engaged in [the]

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aggravated criminal sexual assaults against

these victims."

The defense responded as follows:

"The State referred to several reasons

for bringing [in] this type of evidence.

First of all, [the State] mentioned motive.

Motive is a reason why some[one] does some-

thing. *** These images do not relate to

motive in any way. Intent is used to show

lack of mistake or accident. Some[one] obvi-

ously contemplates something. *** Again,

watching a video does not go to intent.

[There] is not anything really unique

about the videos or the assault[s] which is

going to be showing modus operandi.

And for identity, *** nothing in these

videos helps the State identify [defendant]

as being the attacker of any one of these

women.

* * *

Not only does the State have a problem

[with] not being able to show the images were

viewed *** by *** defendant ***, all they can

[prove] is that the images were found on a

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 computer located in his home and that he

wasn't at work [at that time]. *** [L]ooki-

ng at the *** computer images, [even] if [the

State] can *** prove [defendant looked at

these images], [l]ooking at those images does

not tend to prove or disprove or make more

likely or less likely that he sexually as-

saulted any of the complaining witnesses and

should be excluded."

After a short recess to consider counsel's arguments,

accompanying motions, and pertinent case law, the trial court

made the following ruling:

"With regard to the [State's] motion

regarding computer evidence, the [c]ourt has

carefully considered all of the evidence

presented today ***.

The issue is similar [to each] of the

issue[s from] the [series of] earlier

motion[s] and that is whether *** evidence of

other bad acts is admissible in this case.

*** [T]his is obviously not a situation where

the State is seeking admission of this evi-

dence under the propensity statute[.] ***

[H]ere[,] we're talking about what can be

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termed *** bad acts or other conduct[, which

is] the alleged viewing of various types of

pornography on a home computer.

* * *

*** [T]here are certainly similarities

in each of the charged offenses. There are

factors that are common to all of them and

primarily those involving the victims being

bound in some way. Obviously, force being

used, objects being used, and weapons being

used, either knives or firearms. Those com-

mon elements are present in all four [as-

saults].

*** The evidence itself, the pornography

***, much of what was presented today has

elements that are common with those elements

found in the offenses here, specifically[,]

*** bondage, use of weapons, use of objects,

and *** use of force. In very carefully

considering all of those factors, the first

question the [c]ourt has to decide is whether

the evidence offered is relevant ***. The

[c]ourt believes that the evidence presented

by the State here today, the pornography

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evidence, is relevant to those aspects that

are shared by some of the items presented in

the offense[s] here; that being, specifi-

cally, the forced sex or rape websites and

photographs, the bondage, the use of foreign

objects, and *** the viewing of female mas-

turbation. Those are all common elements

between the *** tendered or proffered evi-

dence and the evidence of the offenses. ***

There are some items that are being

offered, however, that [the court does not]

think are relevant. [Specifically,] those

websites and the videos that had to do with

*** forced witness ***. Those videos called

[']forced witness['] as well as the video

that ended with a shower scene ***, the

[c]ourt just doesn't see that as relevant.

***

So the bottom[-]line ruling is that [the

court] *** find[s] that those sites and pho-

tographs and images that have to do with

forced sex, rape, bondage, the use of foreign

objects, and observations of female masturba-

tion are relevant. The others regarding

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forced witnesses and the shower video are not

relevant to the charges.

[T]hat leaves us with the question [of

whether] *** the probative value of those

items [is] outweighed by its prejudicial

[e]ffect[.] Obviously, the introduction of

these items would have some prejudicial

[e]ffect. *** Otherwise, the State wouldn't

be seeking to introduce it. *** The [c]ourt

believe[s] that the probative value is high.

The prejudicial [e]ffect is also high. And

so the balancing has to be done very care-

fully.

* * *

[Having] go[ne] through all of the case

law *** and [having] weighed the prejudicial

effect of the photographs against their pro-

bative value. *** After carefully consider-

ing it, the [c]ourt believes that the proba-

tive value of these websites and photographs

does, in fact, outweigh the prejudicial

[e]ffect of their admission in this case.

With the exception of those that [that court]

ha[s] indicated are not relevant, the [c]ourt

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 will allow the [State's] motion in limine

***. The [c]ourt will deny the motion as it

pertains to those items from the forced wit-

ness websites and the video involving the

shower."

3. The State's Request To Bar Defendant's Expert

In March 2008, the State filed a motion in limine,

seeking to bar defendant's eyewitness identification expert, Dr.

Solomon Fulero. Specifically, the State requested, in pertinent

part, that the trial court bar Fulero from testifying because

Fulero's testimony would not aid the trier of fact in rendering

its verdict. In April 2008, defendant responded, arguing that

Fulero would aid the jury because issues with mistaken identifi-

cation were a general problem in criminal trials, particularly in

cases involving sexual assault.

Following an April 7, 2008, hearing on the State's

motion to exclude Fulero, the trial court found as follows:

"With regard to the other argument the

State has presented that expert testimony is

generally not admissible in the area of eye-

witness identification[,] *** the Illinois

Supreme Court and the reviewing courts have

cautioned trial courts in allowing expert

testimony in this area. *** I am not certain

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 that it should be characterized as the State

has in that the rule is that it is not gener-

ally admissible. [R]ather[,] the recent

cases indicate that trial courts need to be

very cautious about allowing such evidence

because *** it tends to invade the province

of the jury in determining credibility of

witnesses. *** There has been some evidence

presented about certain identification. [The

court does not] know if there is other iden-

tification that [it] hasn't heard about.

[F]rankly[, the court is] very frus-

trated at that. [The court is] at a loss in

how to *** rule on this motion without [know-

ing what] the evidence *** is going to be.

So[, the court's] ruling on the State's

[m]otion *** i[s] this; the motion is allowed

unless and until the court is presented with

certain evidence that this eyewitness expert

has real probative evidence that does not

invade the province of the jury in determin-

ing credibility of witnesses."

On April 21, 2008, defendant filed a motion to recon-

sider the trial court's order, barring Fulero's testimony. At a

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hearing on that motion held three days later, the court denied

defendant's motion for failure to make a specific offer of proof.

C. Jury Selection in This Case

1. The Trial Court's Admonishments and Questions
Related to the Presumption of Innocence

In May 2008, the trial court addressed the parties as

follows:

"We will begin the jury[-]selection process

in this case shortly. But before we do that,

*** we need to make a bit of a record ***.

We had a discussion regarding the jury selec-

tion process and to briefly summarize, the

[c]ourt is summoning [40] potential jurors to

the courtroom here in a few minutes. Upon

their arrival, the [c]ourt will be engaging

in some opening remarks to the potential

jurors regarding the nature of the case,

discussing the charges that are pending,

indicating the names of potential witnesses,

and introducing the parties and the attorneys

to the jurors. *** [W]hen the opening re-

marks are completed, the clerk will call the

names of the first four jurors on the list

that have been provided to counsel. Those

four potential jurors will remain in the

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 courtroom for individual questioning by the

[c]ourt and attorneys. The remaining [36]

jurors will be excused back to the jury as-

sembly room after the [c]ourt has admonished

them ***. Those [36] jurors will remain in

the jury assembly room in a separate area

from the other potential jurors who are here

for trial in the building today until they

are needed again in the courtroom."

Shortly thereafter, the trial court explained to the

40-person pool of potential jurors, among other things, (1) what

the court expected of them generally and (2) how the jury-selec-

tion process would work. Specifically, the court explained its

expectations as follows:

"Ladies and gentlemen, in this case,

[defendant], as with any other person who is

charged with a crime, is presumed innocent of

the charges that bring him before you. This

presumption is with him now at the onset of

this trial, and it will remain with him

throughout the course of the proceedings ***.

[This] is not overcome unless and until each

of you individually and collectively are

convinced beyond a reasonable doubt that ***

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 [d]efendant is guilty. It is absolutely

essential as we select this jury that each of

you understands and employs these certain

fundamental principles; that is, that all

persons charged with a crime are presumed to

be innocent. And it is the burden of the

State *** to prove *** [d]efendant guilty

beyond a reasonable doubt. What this means

is that *** [d]efendant has no obligation to

testify in his own behalf or to call any

witnesses in his defense. ***

The fact that *** [d]efendant chooses

not to testify must not be considered by you

in any way in arriving at your verdict. ***

The bottom line, however, is that there

is no burden upon *** [d]efendant to prove

his innocence. It is the State's burden to

prove him guilty beyond a reasonable doubt.

* * *

The [c]ourt and counsel are going to

begin questioning you in panels of four ***."

The court then seated the first four potential jurors. As part

of its questioning, the court asked the group of four, in perti-

nent part, the following questions, to which the jurors responded

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as a unit:

"[THE COURT: W]hen [the court] was ad-

dressing the entire group, [it] touched on

some general principles of the law that apply

to all criminal cases. Now, one of those was

the presumption of innocence. Do each of you

understand and accept that this means that

*** [d]efendant does not need to prove his

innocence?

Seeing all positive responses.

***

[THE COURT:] Do each of you understand

that he does not need to testify, and that if

he chooses not to testify, that you must not

consider that in any way in arriving at a

verdict? Each of you understand that?

Seeing all positive responses."

The court asked the same questions to each successive group of

similarly situated potential jurors.

2. Defendant's Renewal of His Motion for Change of Venue

On the third day of jury selection, defendant exhausted

his peremptory challenges and shortly thereafter renewed his

motion for change of venue, arguing that the venire had "formed

opinions in this case." The trial court denied defendant's

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motion, finding as follows:

"Thus far in the jury[-]selection pro-

cess, [the court and the parties] have inter-

viewed thirty-eight individuals. Defendant

has made a challenge for cause on several of

those individuals based on what they said

about opinions that they held [in light of

local] media coverage. The [c]ourt has

granted several of those motions. The [c]ou-

rt has denied several motions for cause on

the grounds that the [c]ourt found that the

responses of those jurors, while they indi-

cated they had perhaps read or heard things

and formed some sort of opinion, they were

either not familiar with any facts in the

case, and they also indicated that they could

set aside their opinions and what they may

have read and still judge the case only on

the law and the evidence. The [c]ourt be-

lieves that the rulings in regard to all of

those challenges for cause that were denied

[were] appropriate. And, obviously, ***

defendant has used some peremptory challenges

for a couple of those jurors ***. *** [A]t

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 this point, [the court] think[s] the record

is pretty clear that [this case] has not ***

even come close to reaching the point of

impossibility of selecting a fair and impar-

tial jury in this county."

D. Defendant's Trial

1. The State's Evidence

At defendant's trial--which began in May 2008--the

State called more than 60 witnesses to testify that between

December 2002 and June 2006, defendant--a Bloomington, Illinois,

police sergeant--committed a series of signature crimes against

women in the Bloomington-Normal community. The State presented

evidence that defendant (1) used his resources as a police

officer to discover the personal information of a number of

individuals, including some of the victims; (2) ran his own

license plate number following one of the sexual assaults to

determine whether his vehicle had been reported; (3) viewed

graphic pornography on his home computer that depicted women (a)

being raped, abused, and assaulted with, among other things, beer

bottles and (b) pleasuring themselves with their fingers and

various sex toys; (4) had access to a hooded sweatshirt labeled

"England," which he may have purchased on a family vacation to

London, England, several years before the sexual assaults; (5)

owned (a) black gloves with velcro wristbands, (b) rope, (c)

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black ski masks, (d) a black coat, (e) folding knives, and (f)

multiple guns; and (6) had (a) been seen peering into residential

windows, (b) been seen driving his personal vehicle early in the

morning by fellow Bloomington police officers, who described him

as having acted suspiciously, and (c) followed and investigated

J.K., as well as removed the screens from her apartment window.

a. Evidence Related to A.M.

A.M. testified that in December 2002, she awoke at 4:30

a.m. to discover an intruder standing in the doorway to the

bedroom of her Bloomington apartment. He was shining a flash-

light at her. She "freaked out[.]" He ran over to her and

covered her mouth with his hands. He put "twine" around her

neck, which she convinced him to remove by promising not to

scream. He then put a knife against her head and ordered her to

take off her shorts and underwear. She resisted. He told her

that if she did not comply, he would cut her throat. She com-

plied, and he inserted his finger into her vagina and then

performed oral sex on her. He then ordered her to roll over onto

her stomach. He put his fingers into her vagina again. He said,

"Tell me why I shouldn't rape you." She responded that she did

not know. He abruptly stopped, told her to put her face in her

pillow, said he would be "right back," and walked out of her

bedroom. When she heard the apartment door shut, she locked the

bedroom door and called the police. She added that at some point

- 26 -
during the assault, he told her that he had been (1) watching her

from across the street and (2) planning to do the same thing to

her roommate.

A.M. described the intruder as a white male who was

wearing a black ski mask, black "Carhartt" coat, and jeans. She

also told the jury that her (1) license plate at the time of the

assault read "AMOJO 58" and (2) roommate's license at the time of

the assault read "LACYJO 5." Those two license plates, "AMOJO

58" and "LACYJO 5," were run--for no apparent legitimate law

enforcement reason--the month before A.M.'s assault by "JPELO,"

using the Bloomington police department's Law Enforcement Agency

Data System (LEADS). That same month, someone logged in as "J.

Pelo" at the Bloomington police department accessed A.M.'s

parents' personal information through the National Crime Informa-

tion Center (NCIC) database.

b. Evidence Related to K.H.

K.H. testified that in April 2003 she went to sleep in

her Bloomington apartment around 12:30 a.m. Sometime after she

went to sleep, she awoke to find an intruder standing in her

doorway, shining "a small round light" on her. The next thing

she knew, the man was on top of her. He put his gloved hand over

her mouth and told her not to scream. He said that he did not

want to hurt her, but that if she screamed, he would shoot her.

The intruder ripped the sheets from K.H.'s bed. He

- 27 -
then tied her hands behind her back with "zip ties" and rolled

her over to duct-tape her mouth. She complained that the zip

ties were too tight. He cut the zip ties off and bound her

wrists with duct tape. He also placed duct tape across her

mouth, eyes, and head. He then placed one of her pillowcases

over her head. He proceeded to suck on her right nipple. He

then licked her vagina and clitoris, placing a gun on her chest

and threatening to kill her when she appeared to object. He got

off the bed, removed some of his clothes, and ripped open a

package. He got back on top of her and rubbed his un-erect penis

between her legs and along her vagina. He asked her, "Do you

have a boyfriend?" "Do you shave yourself or is that for your

boyfriend?" "Do you live here with anybody?" "Where does your

boyfriend live?" And, "How old are you?" She could not answer

because of the duct tape on her mouth. He stopped and stepped

away. When he came back, he was "more erect." He then pene-

trated her vagina for "a few thrust[s]."

The intruder got off the bed, told K.H. to stand up,

and rubbed his hands over her breasts and between her legs. He

then left the room. He came back a short time later, took her

cellular telephone off the charger, and ordered her into the

bathroom. He told her to get into the bathtub. She complied and

he cut the duct tape off of her wrists. He turned on the water

and told her to put four fingers into her vagina "as far as [she]

- 28 -
could put them and then to move them in and out." He told her

that he liked that and then asked her if she had any dildos or

vibrators. She indicated that she did. He left the bathroom and

returned with a vibrator.

The intruder then inserted the vibrator into K.H.'s

vagina. After some time, he took the vibrator out and placed it

against her anus, asking her whether she "had ever done it

there." She indicated that she had not and did not want to. He

placed the vibrator back into her vagina. He then ordered her to

do it to herself, instructing her to "do it hard like you like

it." He added (1) that was the way he liked it and (2) she was

"getting [him] off." After a while, she realized that he had

left. She got out of the bathtub, cut the duct tape off of her

head, and called the police from her home telephone.

K.H. further testified that the intruder was a white

male who was wearing a black ski mask, a black jacket, jeans, and

black gloves "like [the] kind *** football players [wear.]" When

shown a photographic lineup, K.H. indicated that defendant's eyes

were familiar. In response to voice exemplars, she eliminated

five of the eight samples. (Defendant's voice was not one of the

five exemplars she eliminated.)

The State also presented evidence to show that (1) in

October 2002--six months prior to K.H.'s assault--someone logged

in as "J. Pelo" at the Bloomington police department accessed

- 29 -
K.H.'s and K.H.'s father's personal information through the NCIC

database and (2) in February 2003--two months before K.H.'s

assault--someone logged in as "JPELO" accessed K.H.'s information

using the Bloomington police department's LEADS system.

c. Evidence Related to A.L.

A.L. testified that in July 2004 she was arrested for

driving under the influence (DUI). Shortly after her DUI arrest,

a "tall man in black" walked into her apartment between 11 p.m.

and 2 a.m. She yelled, "Help!" and the man ran out the door. In

the early winter of that same year, she "woke up to [find]

someone on the steps *** to her apartment, which [were] right in

front of the window where [she] sle[pt]." She looked out the

door and yelled at the person, but she was only able to see the

person's feet.

In January 2005, A.L. went to bed between 11 p.m. and

midnight. She awoke to find an intruder in a ski mask standing

at the end of her bed. The intruder, who had a flashlight, said

he did not want to hurt her. He forced her to roll onto her

stomach. She resisted, and he put a "rope cord" with a "slip

knot or a double loop" around her neck. After putting the rope

around her neck, he turned her onto her back, showed her a knife,

and told her that he had a gun. He then bound her wrists to-

gether with a zip tie. He ordered her to take off her shorts.

She replied that she could not take her shorts off because her

- 30 -
hands were tied. He responded, "Yes, you can. I have done this

before." He then assisted her in taking her shorts off and

closely "examined" her pelvic area and chest. He threw her

blankets and clothes off the bed and continued examining her

body. He commented that she was "beautiful" and that he liked

female masturbation where "the female would insert something into

her vagina to manipulate herself." He also told her that (1) he

had been watching her and (2) she had almost caught him trying to

enter her apartment a couple of times.

The intruder asked A.L. whether she had any "sex toys,

dildos, [or] vibrators." She responded that she did not. He

then asked her whether she had any beer bottles. She said that

she did not. He forced her to manipulate her "pelvic, clitoral

area" for two or three minutes, while he watched. He next told

her that it was time for "the whole thing," and she pleaded with

him to use a condom. She retrieved a condom from the bathroom.

He pulled his pants down and attempted to put the condom on.

However, he was unable to do so because he did not have a full

erection. Eventually, he was able to get the condom on his

penis. He then attempted to penetrate her vagina but was having

difficulty because his penis was never fully erect.

The intruder then told A.L. that she had "managed to

talk [him] out of the mood." He told her to get up and "run a

bath." She did, and he told her to get in and wash herself. He

- 31 -
then left the bathroom. After a short time, she got out of the

bathtub to try to cut the zip ties off of her hands. While she

was doing that, the intruder opened the bathroom door, holding a

towel and her cellular telephone. He left the bathroom again.

He eventually came back and cut the zip ties off her wrists. He

told her not to call the police and said that he would be watch-

ing her. When she heard him leave, she called the police from

her cellular phone. (He had apparently left the cellular tele-

phone in her apartment despite having carried it into the bath-

room.)

A.L. testified that the intruder was a white male who

was wearing dark clothing, a ski mask, gloves with velcro wrists,

and a sweatshirt with (1) a hood and (2) the word "England" on

the front of it. She added that the hood of the sweatshirt was

pulled over the ski mask. (To show that defendant owned such a

sweatshirt, the State introduced photographs of his family

wearing similar sweatshirts while on an earlier trip to England.)

A.L. identified defendant as the intruder at trial.

She also identified him from both a photographic lineup and voice

exemplar. Additionally, she indicated that "the walk and the

gait" of the intruder were the same as defendant's based upon her

observations of defendant at his arraignment in this case. The

State also presented evidence that A.L.'s personal information

had been accessed several times from different central Illinois

- 32 -
police agency terminals prior to her assault.

d. Evidence Related to S.K.

S.K. testified that in October 2004, she arrived at her

Bloomington apartment from work around 2 a.m. As she parked her

car, she noticed a man walking "very slowly" away from her

apartment building with his hands in his pockets. The man passed

within three feet of her car and had a distinctive walk. She

added that "it seemed very out of the ordinary." The next day,

her roommate noticed that her bedroom window screens were miss-

ing.

On January 25, 2005, S.K. took the day off work to

prepare for her wedding. She returned to her apartment from her

parents' home around midnight. She went to bed at approximately

2 a.m. Around 2:45 a.m., she awoke to see someone coming into

her room. The intruder told her to "shut the fuck up" and

brandished a gun. He then asked her whether her roommate would

be coming home. She said that she would not. Following a short

struggle, the intruder put the gun to her head and ordered her to

remove her clothes.

S.K. explained that the intruder was a white male who

was wearing a light-colored University of North Carolina hooded

sweatshirt, dark blue jeans, a black "neoprene" coat, black

gloves similar to the type that "wide-receivers wear," and a

black belt, adding that he appeared to be using the belt as a

- 33 -
utility belt for his weapons. The intruder had the hood of the

sweatshirt pulled tight around his face with a black scarf

covering half of his nose and all of his mouth. She recalled

that the gun was silver and was not a revolver.

S.K. further testified that once the intruder removed

her clothing, he began to rub her inner thighs and "look over

[her] vaginal area." He bound her hands with plastic zip ties.

He then put a folding knife to her throat and asked her (1) for

her name and (2) who lived at 110 Doud Drive. She told him her

name and said that her parents lived at that address. He re-

sponded as follows: "I know that, you didn't think I knew that.

You make one more noise, you scream, I will put a bullet in your

fucking head and go to your parents and finish off every single

last one of them."

Shortly thereafter, the intruder pulled out a vibrator

and asked S.K. if she knew where he had gotten it. She responded

that she did not, and he told her that it was her roommate's. At

that point, he attempted to place one of her pillowcases over her

head. She "lost it," and he agreed to simply lay the pillowcase

over her eyes so that she could not see him. He violently

penetrated her vagina with the vibrator for several minutes. He

then left the room for a short period of time. When he came

back, he attempted to (1) penetrate her anally with the vibrator

and (2) put a "black cord" around her neck and "use it as a

- 34 -
noose."

Because the intruder was having difficulty anally

penetrating S.K. with the vibrator, he asked her whether she had

any lubricant. She said she did not. He persisted. She indi-

cated that she had some lotion in the bathroom. He then made her

get off the bed and accompany him to the bathroom. She tried to

stop him by telling him that she was pregnant. He did not

respond. However, once they were in the bathroom, he asked her

how long she had been pregnant. She said, "four days." He

demanded to see the pregnancy test. She retrieved the pregnancy

test from the bathroom trash can. After noticing her engagement

ring, he asked whether her fiancé was "the person with the red

car that visits [her] on the weekend." She said that he was. He

claimed that he knew everything about her, telling her that he

knew she worked at "The Loft," worked out at "Gold's Gym," and

that her little sister looked very similar to her. He also told

her that he (1) knew her schedule and (2) had been watching her

come and go from her apartment. He then asked her (1) if her

fiancé knew she was pregnant, (2) whether they were excited, (3)

how he would feel if he knew that she was pregnant when he raped

her, (4) if she would keep the baby in light of the attack, and

(5) if her parents would be upset. S.K. testified that he

appeared to be "elated like a little kid at Christmas, ***

overjoyed that all of these other people [would] be violated."

- 35 -
He then took the lotion and S.K. back to the bedroom.

Once they were back in the bedroom, the intruder put

the lotion on S.K.'s fingers and, at gunpoint and knifepoint,

forced her to place her fingers in her vagina; two fingers, then

three and four, and then her thumb. However, she was having

trouble inserting her thumb. The intruder became angry and undid

the velcro on his gloves in an effort to remove them. At that

moment, she could see his face because the pillowcase had "shift-

ed up." He began to insert his fingers into her vagina; first

one, then two, three and four, and then his thumb. After doing

so, he asked her (1) whether this was the bed she had gotten

pregnant in and (2) what was the craziest thing she had ever

done. She did not respond to either question.

The intruder then asked S.K. where she wanted to have

sex, pointing first to her mouth, then to her vagina. He un-

zipped his pants and pulled them down around his knees. He began

to rub his penis against her vagina, telling her that if she did

not respond, he was going to do both. He then attempted to

insert his penis into her vagina. She told him that she "would

rather do it the other way." He grabbed his gun, held it to her

head, cocked it by pulling back the slide, and told her that if

she bit him, he would "blow her brains out." He then put his

penis in her mouth, but could not become fully erect. (S.K. also

noted that his penis did not seem fully erect when he was earlier

- 36 -
making contact with her vagina.) He next asked whether she had

any condoms. She responded that she did not.

After removing his penis from her mouth, the intruder

"got the vibrator out again" and asked S.K. whether she had any

sex toys. She responded that she did not. He said, "Well, what

about beer bottles?" She said that she did not. He then forced

her on to her hands and knees and again violently penetrated her

vaginally from behind with the vibrator. After a while, he

stopped and began anally penetrating her with the vibrator. All

the while, he was repeating the phrases, "You have a pretty

pussy," and "I want to shave it."

The intruder then ordered S.K. back to the bathroom

where he put her right leg up on the counter, directly in front

of the mirror. He began rubbing the outside of her vagina,

attempting to insert his fingers into her vagina. Simulta-

neously, he was rubbing her abdomen with his other hand, (1)

asking her what her plans were for the pregnancy and (2) talking

about killing her family. After several minutes, he forced her

to switch legs and then repeated the process.

After assaulting her, the intruder forced S.K. to sit

in the bathtub with her feet toward the drain. He turned the

water on, spread her legs apart, put soap on her hand, and told

her to insert four of her fingers in and out of her vagina

rapidly until he told her she could stop. After a while, he

- 37 -
knelt down next to the bathtub and told her to hold out her

wrists. She complied and he cut the zip ties off with his knife.

He then shut the lights off, walked out of the bathroom, and

closed the door behind him. After what she thought was a couple

of hours, she got out of the bathtub and met a neighbor that she

had heard preparing for work in the apartment above hers. When

she got out, she noticed that her clothes, her telephones, and

the fitted sheet from her bed appeared to be missing. (She later

discovered that her cellular telephone was not missing, but had

been hidden in her apartment.)

S.K. later identified defendant in court as the in-

truder, and she also identified him from a photographic lineup

and voice exemplar. She also told the jury that the intruder had

the same distinctive walk as the man she saw walking away from

her apartment in October 2005.

e. Evidence Related to J.P.

J.P. testified that on April 8, 2005, she received a

number of "hang-up" calls at work, which gave her a "really bad

feeling." Because of that feeling, she asked a male coworker to

walk her to her car. Shortly after driving out of the parking

lot, she noticed a man who had pulled his vehicle behind hers

acting suspiciously. She described the man as a white male with

a straight nose, "rounder" face, a "buzz cut flattop," and "big

sunglasses." She identified defendant from the witness stand as

- 38 -
the person who appeared to be following her that day.

J.P. further testified that on April 10, 2005, she and

her then-boyfriend, Scott Galuska, returned to her Bloomington

home around 10 p.m. Sometime after J.P. fell asleep, Galuska

woke her up and told her to call the police because he saw

someone wearing black gloves standing in her yard. As J.P.

called the police, Galuska ran outside with a baseball bat.

Shortly thereafter, she heard Galuska and the man in the yard

yelling at each other. The man eventually ran away.

Galuska testified, reinforcing J.P.'s testimony regard-

ing the events of the night of April 10, 2005. Galuska identi-

fied defendant from a photographic lineup as the man he con-

fronted in J.P.'s yard.

J.P. also testified about a third incident. On June

10, 2006, J.P. arrived home around midnight. Shortly after

arriving home, she noticed that her dog was unusually upset,

barking and growling. She then heard what she described as an

"urgent" knock at the door. She responded, but no one was at the

door. Shortly thereafter, her doorbell rang, and again, no one

was there. She then heard a noise by the side of the house,

prompting her to call the police. Officer David Ziemer responded

to the call.

Ziemer testified that as he approached J.P.'s house he

saw someone standing with his back against an adjacent house.

- 39 -
Ziemer ordered the person to walk toward him but, instead, the

person turned to walk away with his hands "in his waist-band

area." Ziemer pulled his service firearm and ordered the man to

stop, but the person continued to walk away. However, once the

man got to the back of the house, he turned and walked directly

toward Ziemer. As the man approached, Ziemer recognized the man

as defendant, his former supervisor and member of his softball

team. Before he released defendant, Ziemer noticed that defen-

dant had "an item of clothing or something" under his shirt.

2. Defendant's Evidence

Defendant did not testify in his own defense. However,

defendant called several witnesses to show that (1) his brother-

in-law and other family members had access to the family computer

containing the pornography, (2) the victims had misidentified him

as their attacker because they had been tainted in one way or

another by the media coverage, (3) he was in bed with his wife or

working at the time of the assaults, and (4) other individuals

could have committed these crimes.

E. The Jury's Verdict

In June 2008, the jury convicted defendant of the

crimes against J.P., S.K., K.H., A.L., and A.M. as alleged by the

State. Specifically, the jury convicted defendant of (1) stalk-

ing (720 ILCS 5/12-7.3(a)(2) (West 2006)) and attempt (residen-

tial burglary) (720 ILCS 5/8-4, 19-3(a) (West 2006)), in case No.

- 40 -
06-CF-581 as to J.P.; and (2) (a) 1 count of intimidation (720

ILCS 5/12-6(a)(1) (West 2006)), (b) 2 counts of residential

burglary (720 ILCS 5/19-3(a) (West 2006)), (c) 2 counts of

aggravated unlawful restraint (720 ILCS 5/10-3.1(a) (West 2006)),

(d) 3 counts of home invasion (720 ILCS 5/12-11(a)(1), (a)(3)

(West 2006)), and (e) 25 counts of aggravated criminal sexual

assault (720 ILCS 5/12-14(a)(1), (a)(8) (West 2006)) in case No.

06-CF-679 as to S.K., K.H., A.L., and A.M.

F. Defendant's Sentence

Following defendant's August 2008 sentencing hearing,

the trial court merged several of defendant's convictions in case

No. 06-CF-679 pursuant to the one-act, one-crime rule. After

doing so, the court entered judgment against defendant on (1) 1

count of (a) stalking (720 ILCS 5/12-7.3(a)(2) (West 2006)) and

(b) attempt (residential burglary) (720 ILCS 5/8-4, 19-3(a) (West

2006)) in case No. 06-CF-581; and (2) (a) 1 count of intimidation

(720 ILCS 5/12-6(a)(1) (West 2006)), (b) 2 counts of home inva-

sion (720 ILCS 5/12-11(a)(1), (a)(3) (West 2006)), and (c) 13

counts of aggravated criminal sexual assault (720 ILCS 5/12-

14(a)(1), (a)(8) (West 2006)) in case No. 06-CF-679.

The trial court then imposed a series of consecutive

terms of imprisonment, which incorporated a number of enhance-

ments based on defendant's use of a (1) firearm and (2) dangerous

weapon other than a firearm. The court explained its incorpora-

- 41 -
tion of those enhancements as follows:

"[T]he aggravated[-]criminal[-]sexual[-]

assault charges in [case No.] 06[-]CF[-]679

contain certain sentence enhancements[,]

which mandate the imposition of additional

penalties if a weapon is involved in the

commission of the offense. The statute de-

fining aggravated criminal sexual assault

directs that a violation of [section 12-

14](a)(8) [(720 ILCS 5/12-14(a)(8) (West

2006)),] where the accused was armed with a

firearm, is a Class X felony for which fif-

teen years shall be added to the term of

imprisonment imposed by the [c]ourt; and a

violation of [section 12-14](a)(1) [(720 ILCS

5/12-14(a)(1) (West 2006))], where the ac-

cused was armed with a dangerous weapon other

than a firearm, *** is a Class X felony for

which ten years shall be added to the term of

imprisonment imposed by the [c]ourt. Like-

wise, home invasion, as charged in [c]ount 1

in this case, pursuant to *** [section] 5/12-

11(a)(3) [(720 ILCS 5/12-11(a)(3) (West

2006))], indicates that where the accused was

- 42 -
armed with a firearm during the commission of

the offense, the offense shall be a Class X

felony for which fifteen years shall be added

to the term of imprisonment imposed by the

[c]ourt.

The jury in this case found beyond a

reasonable doubt that *** defendant committed

the offense of aggravated criminal sexual

assault while armed with a firearm in [c]oun-

ts 3 and 4, 6 through 11, and 28 through 29.

The jury also found beyond a reasonable doubt

that *** defendant committed the offense of

aggravated criminal sexual assault while

armed with a dangerous weapon other than a

firearm, specifically, a knife in [c]ounts 32

and 33. And, finally, the jury found beyond

a reasonable doubt that *** defendant commit-

ted the offense of home invasion while armed

with a firearm on [c]ount 1 ***. The [c]ourt

finds that the sentencing enhancements for

the use of a firearm and a dangerous weapon,

therefore, apply to this case and *** defen-

dant's sentence on [c]ounts 1, 3 and 4, 6

through 11, and 28 through 29 will be in-

- 43 -
 creased by a term of fifteen years on each

count. And *** defendant's sentence on

[c]ounts 25, 32, and 33 shall be increased by

a term of ten years on each count."

The court thereafter sentenced defendant to a series of consecu-

tive prison terms, totaling 440 years.

This appeal followed.

II. ANALYSIS

Defendant argues that (1) the trial court erred by (a)

allowing the State to introduce dozens of exhibits involving,

among other things, graphic pornographic images and text, includ-

ing depictions of rape, (b) denying his motion for change of

venue, (c) excluding the testimony of his expert witness, and (d)

failing to question jurors regarding the presumption that he was

innocent until proven guilty; (2) the State failed to prove him

guilty beyond a reasonable doubt that he sexually assaulted A.M.;

and (3) his sentencing enhancements for the aggravated criminal

sexual assaults against K.H., A.L., and S.K. violate the

proportionate-penalties clause of the Illinois Constitution (Ill.

Const. 1970, art. I, §11). We address defendant's contentions in

turn.

A. Defendant's Claim That the Trial Court Erred by
Allowing the State To Introduce Irrelevant
and Prejudicial Pornographic Material

Defendant argues that the trial court erred by allowing

- 44 -
the State to introduce dozens of exhibits involving, among other

things, graphic pornographic images and text, including depic-

tions of rape (hereinafter the pornography) because this evidence

was irrelevant. Defendant further contends that if this court

were to conclude that this evidence was relevant, the trial court

still erred by admitting it because it was "more prejudicial than

probative and admitted without limitation."

1. The Pornography Presented in This Case

At trial, the State presented the following exhibits

recovered from defendant's home computers: (1) 23 poster boards,

containing images, Internet search results, and gallery names;

(2) a slide show depicting Internet searches; and (3) two 30-

second movie trailers. We discuss each group of exhibits indi-

vidually to place them in context.

Initially, we note that the State's computer forensic

experts recovered the pornography at issue in this case from

defendant's home computers. Those experts recovered, in relevant

part, (1) approximately 175 pornographic images, (2) numerous

Internet search terms and the results of those searches, and (3)

2 short movie trailers. The content of the images and movie

trailers are self-evident. However, the description of the

Internet searches and other written content is more nuanced.

That is, a number of the State's exhibits showed Internet search-

es that were guided by search terms entered by the computer's

- 45 -
user into what is known as a "search engine," such as those run

by "Google" and "Yahoo!" The result of those searches revealed a

list, or menu, of corresponding Web sites containing those terms

from which the user could select. Some of the exhibits shown to

the jury in this case depicted search terms as well as the

results of those searches. The State also presented a number of

exhibits depicting the content of Web sites that it claimed

defendant had viewed. Those Web sites included what the parties

refer to as "gallery names"--that is, they included links to

other Web sites with short descriptions of those sites. As we

will explain, a few of those images, search results, and gallery

names were not relevant to the State's case and should not have

been admitted.

a. The Poster Boards

The State showed the jury 23 separate poster boards,

which depicted images, gallery names, and search results that it

claimed defendant had viewed. Those poster boards included the

following material: (1) 23 images depicting rape, penetration of

women with foreign objects, bondage, and forced fellatio (exhibit

C1); (2) 22 images depicting rape, penetration of women with

foreign objects, domination, bondage, fellatio, incest, and a

gynecological exam (exhibit C2); (3) 22 images depicting rape,

bondage, fellatio, caning, and penetration of women with foreign

objects, including vaginal and anal shock (exhibit C3); (4) 5

- 46 -
images depicting rape and women penetrating themselves (exhibit

C4); (5) 9 images depicting rape, bondage, fellatio, and a woman

having her throat slashed with a knife (exhibit C5); (6) 10

written Internet search term results for the search term "bdsm

rape," which included a result for mother-daughter incest and gay

rape (exhibit C6); (7) 10 written Internet search results for the

search term "real rape," which included results for father-son-

teen incest and gay rape (exhibit C7); (8) a written short story

describing a rape, with links at the bottom of that Web site,

which described incest (exhibit C8); (9) a Web site that included

rape video links and images depicting rape and bondage, including

3 images and stories describing incest (exhibit C11); (10)

approximately 40 images depicting rape, bondage, women penetrat-

ing themselves, and penetration of women with foreign objects,

including vaginal shock from the Web site www.damseldiary.com

(exhibit C12); (11) 11 blacked-out images from the Web site

www.maxirape.com (exhibit C13); (12) several images depicting

forced fellatio and rape at gunpoint from the Web site

www.maxirape.com (exhibit C14); (13) several images depicting

rape at knifepoint and gunpoint from the Web site www.maxirape.c-

om (exhibit C15); (14) images depicting rape at gunpoint from the

Web site www.maxirape.com (exhibit C16); (15) several images

depicting rape at knifepoint and gunpoint from the Web site

www.maxirape.com (exhibit C17); (16) a written list of 118

- 47 -
gallery names, such as "Girl tied up at the wall," "Lesbian slave

in bondage," and "Brutal electric pussy treatment," from the Web

site www.Bdsmsexaffraid.com (exhibit C18); (17) 26 images and 120

gallery names, such as "Girl fucked by brutal device" and "Les-

bian torture," from the Web site www.Bdsmsexaffraid.com (exhibit

C19); (18) 6 images depicting rape at gunpoint from the Web site

www.forcedfuckers.com (exhibit C20); (19) 28 images depicting

domination and forced fellatio, as well as Internet links to 4

videos with short stories describing (a) brides being raped on

their wedding night, (b) men overpowering women, (c) men in

uniform raping women, and (d) lesbian rape, from the Web site

www.forcedfuckers.com (exhibit C21); (20) numerous written

gallery names (in very small font) from the Web site

www.sodomcity.com, describing links to fetishes such as "Secre-

taries Drinking Cum and Piss" (exhibit C22); (21) written gallery

names (in very small font), such as "High Powered Machines Taking

Pussy A Part," and images, including a woman being caned, from

the Web site www.sodomcity.com (exhibit C23); (22) numerous

blacked-out images from a "Free Rape Page" taken from the Web

site www.screamncream.com (exhibit C24); and (23) 51 images

depicting rape, bondage, and forced fellatio from the Web site

www.screamncream.com (exhibit C25).

b. The Slide Show

The State also presented to the jury a slide show,

- 48 -
which included the following data recovered from defendant's home

computers: (1) an Internet search termed "Real Rape" with results

linking to 5 different Web sites, including a father-son incest

site (exhibit 9a); (2) an "adults only" warning page (exhibit

9b); (3) a "Rape Gallery" result page (exhibit 9c); (4) results

for sex machine and brutal rape videos (exhibit 9d); (5) results

and links for father-son incest, straight and homosexual rape,

and men with animals (exhibit 9e); (6) results and links to rape

and sexual violence Web sites (exhibit 9f); (7) an Internet

search termed "bondage" with results linking to bondage and

various fetish Web sites (exhibit 9g); (8) a credit-card-decline

page (exhibit 9h); (9) an Internet search based on the search

term "BONDAGE" with four results linking to bondage Web sites

(exhibit 9i); (10) a page showing only a search termed "porn

illegal" (exhibit 9j); (11) text describing fantasy rape, bond-

age, sexual slavery, and forced submission (exhibit 9k); and (12)

a three-line story about the rape and bondage of fitness trainers

(exhibit 9l).

c. The Movie Trailers

The State also showed the jury two short Internet video

trailers, which were approximately 30 seconds long. The first

depicted a woman strapped to a board, who was wearing a leather

mask, being penetrated by another person's fist. (That person

was otherwise out of view.) The second depicted two women in

- 49 -
their underwear who were bound at their hands and feet being

thrown onto a bed.

2. The Relevancy of the Pornography

Evidence is relevant when it (1) renders a matter of

consequence more or less probable or (2) tends to prove a fact in

controversy. People v. Lynn, 388 Ill. App. 3d 272, 280, 904

N.E.2d 987, 994 (2009). The issue of whether evidence is rele-

vant and admissible is reserved to the sound discretion of the

trial court. Lynn, 388 Ill. App. 3d at 280, 904 N.E.2d at 994.

The exercise of the trial court's discretion in that regard will

not be reversed absent an abuse of that discretion. Lynn, 388

Ill. App. 3d at 280, 904 N.E.2d at 994. A trial court abuses its

discretion only when its decision is arbitrary, unreasonable, or

fanciful or where no reasonable person would take the trial

court's view. People v. Bean, 389 Ill. App. 3d 579, 590, 906

N.E.2d 738, 747 (2009) (adding that "[a]side from no review at

all, the abuse-of-discretion standard is the most deferential

standard of review").

As previously explained, the pornography at issue

depicted primarily violence against women, bondage, sadism, and

rape. We earlier described this material at length, and we will

not repeat that description now. Instead, it suffices to note

that, as the court observed, a significant portion of this

material involved the use (or forced use) of fingers or foreign

- 50 -
objects to penetrate women both vaginally and anally, as well as

many instances of female masturbation and other fetish-based

dramatizations. The court explained that after carefully consid-

ering all of the material the State offered, as well as the

arguments of counsel, it found that the evidence was relevant

because of the particular circumstances of the crimes involving

the victims in this case. In particular, the court ruled that

the pornographic "sites and photographs and images that have to

do with forced sex, rape, bondage, the use of foreign objects,

and observations of female masturbation are relevant." We also

note that the court ruled that some of the pornography would not

be admitted--namely, that which dealt with the "forced witness"

concept, as well as videos that ended with a shower scene. The

court found that it did not see those matters as relevant to the

State's charges.

We conclude that the trial court correctly determined

that the vast majority of the pornography was relevant in this

case, given that it (1) involved forced sex, rape, bondage, the

use of foreign objects on women, and female masturbation and (2)

was recovered from defendant's home computer. In other words,

the court found that most of the pornography tended to prove a

fact in controversy--namely, who committed the crimes charged--

because the pornography, which was found in defendant's computer,

involved acts and scenarios that were emulated by the perpetrator

- 51 -
in these cases.

In concluding that the trial court correctly determined

that most of the pornography was relevant, we note that the

perpetrator of these sexual assaults not only emulated behavior

shown in this pornography, but in fact told some of the victims

that he liked it when they penetrated themselves digitally or

with foreign objects, like dildos or vibrators, and that their

doing so "got him off." He also told another victim that he

liked female masturbation where "the female would insert some-

thing into her vagina to manipulate herself." The seemingly

peculiar emphasis on this form of sexual activity in the porno-

graphic materials at issue--that is, vaginal and anal penetration

of women digitally or by foreign objects, as well as their

masturbation--suggests a link to the perpetrator of these of-

fenses, who also seemed to have a peculiar interest in this

sexual activity. Such a link could properly be considered by the

court in its evaluation that the evidence was relevant.

Notwithstanding our conclusion that the vast majority

of the pornographic evidence was relevant, our review of the

exhibits in this case reveals that some of it, such as some of

the gallery names and search results described above (see, for

example, "Secretaries Drinking Cum and Piss" (exhibit C22)--which

we reiterate were written in exceptionally small font) and the

images depicting incest, caning, and a gynecological exam were

- 52 -
irrelevant to the State's theory of the case and should not have

been admitted. Thus, we conclude that the trial court erred by

admitting these irrelevant portions of the State's exhibits.

However, given the overwhelming proof of defendant's guilt in

this case, we view the court's error in this regard to be harm-

less.

Although the erroneous admission of other-crimes

evidence carries a high risk of prejudice, the evidence must be

so prejudicial that the defendant is denied a fair trial. People

v. Lopez, 371 Ill. App. 3d 920, 937, 864 N.E.2d 726, 741 (2007);

see People v. Cortes, 181 Ill. 2d 249, 285, 692 N.E.2d 1129, 1145

(1998) (noting that such an error "must have been a material

factor in [the defendant's] conviction such that without the

evidence the verdict likely would have been different"). In

short, "[i]f the error is unlikely to have influenced the jury,

admission will not warrant reversal." Cortes, 181 Ill. 2d at

285, 692 N.E.2d at 1145. An evidentiary issue is harmless when

no reasonable probability exists that the jury would have acquit-

ted the defendant absent the error. See In re E.H., 224 Ill. 2d

172, 180, 863 N.E.2d 231, 235 (2006) (explaining that the

harmless-error-review standard for evidentiary issues is the

"reasonable probability" standard, whereas the harmless-error-

review standard for constitutional issues is the "beyond a

reasonable doubt" standard).

- 53 -
 Having carefully scrutinized the exhibits in this case,

we conclude that the irrelevant pornographic evidence admitted

was not a material factor in defendant's conviction and that no

reasonable probability exists that the jury would have acquitted

defendant absent the error. Indeed, we conclude that the court's

evidentiary error would have been harmless even under the more

restrictive "beyond a reasonable doubt" standard. Here, (1) the

number of images presented depicting, among other things, incest,

vaginal shock, and caning were not extensive when compared to the

much larger number of relevant images presented; (2) the prejudi-

cial impact of the irrelevant gallery names was greatly dimin-

ished, given that (a) the font on the vast majority of those

names was very small--indeed, some were barely legible--and (b)

the great majority of those gallery names were listed as part of

the full Web site presented to show that defendant was viewing

material related to rape; and (3) the prejudicial impact of the

irrelevant search results was substantially diminished by the

fact that (a) the primary purpose of showing those exhibits was

to prove that defendant was using certain search terms--which we

note were relevant--such as "bondage" and "bdsm rape" and (b) the

exhibits did not indicate that defendant selected from the "menu"

of search results any of those results that we have concluded

were irrelevant. Given the lack of prejudice in the context of

this case--that is, the number of other relevant pornographic

- 54 -
images, gallery names, and search results--and the overwhelming

evidence linking defendant to the crimes for which he was con-

victed, we conclude that the trial court's admission of certain

irrelevant pornographic evidence, while erroneous, was harmless.

In addition to defendant's challenge to the admission

of the pornographic material on general relevancy grounds, he

further asserts that the State's theory that this evidence was

relevant is flawed because the State failed to present any

evidence showing that the pornography was being viewed contempo-

raneously with the time the sexual assaults were committed. For

instance, defendant asserts that the record shows that the

pornographic Web sites were visited on or after August 16, 2005,

over six months after the last rape. However, as did the trial

court, we reject the idea that the State was somehow required to

demonstrate that the pornography was viewed contemporaneously

with the sexual assaults in this case. Instead, such claimed

discrepancies in the dates of the viewing of the pornographic

material on defendant's home computer and the dates of the

offenses in this case constitute merely one of many factors for

the trial court to consider in the totality of the circumstances

as it determined whether the pornography was relevant.

3. Defendant's Claim That the Pornographic Evidence,
Even if Relevant, Was More Prejudicial Than Probative

Defendant next contends that because the pornography at

issue, even if relevant, was more prejudicial than probative, the

- 55 -
trial court erred by permitting the State to introduce it into

evidence. We disagree.

We first note that defendant misstates the applicable

rule of law. The question is not whether relevant evidence is

more prejudicial than probative; instead, relevant evidence is

inadmissible only if the prejudicial effect of admitting that

evidence substantially outweighs any probative value. People v.

Hanson, No. 106566, slip op. at 20 (June 24, 2010), ___ Ill. 2d

___, ___, ___ N.E.2d ___, ___ ("A court may exercise its discre-

tion and exclude evidence, even if it is relevant, if the danger

of unfair prejudice substantially outweighs any probative value"-

); People v. Walker, 211 Ill. 2d 317, 337, 812 N.E.2d 339, 350

(2004); People v. Bryant, 391 Ill. App. 3d 228, 244, 907 N.E.2d

862, 876 (2009). "Prejudicial effect" in this context of admit-

ting that evidence means that the evidence in question will

somehow cast a negative light upon a defendant for reasons that

have nothing to do with the case on trial. Lynn, 388 Ill. App.

3d at 278, 904 N.E.2d at 992. In other words, the jury would be

deciding the case on an improper basis, such as sympathy, hatred,

contempt, or horror. People v. Lewis, 165 Ill. 2d 305, 329, 651

N.E.2d 72, 83 (1995),

Here, the State presented a significant number of

pornographic images, sexually explicit Web sites, and gallery

names. Those images, Web site, and gallery names depicted or

- 56 -
described (1) sexual brutality; (2) rape, including the rape of

women on their wedding night; (3) bondage; (4) forced fellatio at

gunpoint and knifepoint; (5) the use of vibrators and dildos; (6)

oral sex; (7) anal sex; and (8) various other sexually explicit

fetishes. The victims in this case testified that they were

subjected to one or more of the following similar acts: (1)

having (a) a rope or cord tied around their neck and (b) dildos

and vibrators used on them and (2) being (a) bound with zip ties,

(b) forced to perform oral sex at gunpoint and knifepoint, (c)

raped a short time before marriage, (d) subjected to oral sex by

their attacker, (e) ordered to "pleasure" themselves with as many

fingers as they could fit into their vaginas, and (f) forced to

choose between being violated anally or vaginally.

In Hanson, slip op. at 20, ___ Ill. 2d at ___, ___

N.E.2d at ___, the supreme court explained that the question of

whether the danger of unfair prejudice substantially outweighed

the probative value of the evidence in question was a matter

within the trial court's discretion, and unless that court's

decision was arbitrary, fanciful, or unreasonable, the court

would not abuse its discretion if it deemed the evidence admissi-

ble. Having reviewed the record in this case, we conclude, as

did the trial court, that the probative value of the pornographic

images and sexually explicit Web sites and gallery names was very

high. The State was entitled to use that evidence to show that

- 57 -
defendant was the intruder described in the victims' testimony.

The pornographic material presented established a backdrop of

peculiar sexual interests by defendant. That is, the material

painted a picture for the jury of defendant as a person who "got

off on" the peculiar sexual activity emphasized in the pornogra-

phy, just as the perpetrator of these crimes told some victims

that he similarly "got off on" those same activities in which he

forced the victims to engage. Consistent with the supreme

court's statement of the standard of review in Hanson, we con-

clude that the trial court's decision was far from being arbi-

trary, fanciful, or unreasonable and did not constitute an abuse

of its discretion.

B. Defendant's Claim That The Trial Court Erred by Not
Giving the Jury a Limiting Instruction Regarding Its
Consideration of the Pornography

Defendant next argues that even if this court were to

conclude that the pornographic material was properly admitted,

the trial court committed reversible error by not giving the jury

a limiting instruction regarding that evidence. Defendant

concedes that he did not request such an instruction at trial,

but he asserts alternatively that the trial court's failure to

give a limiting instruction either (1) constituted plain error or

(2) resulted from the ineffective assistance of his trial coun-

sel. We reject defendant's first contention and decline to

address his second.

- 58 -
 In addressing defendant's contentions, we first note

that the possession or viewing of the pornography at issue in

this case does not technically constitute criminal conduct. That

is, assuming defendant was the person who possessed the pornogra-

phy on his home computer and viewed it, his doing so did not

constitute a criminal act. Nonetheless, as this court explained

in People v. Spyres, 359 Ill. App. 3d 1108, 1112, 835 N.E.2d 974,

977 (2005), "[t]he term 'other-crimes evidence' encompasses

misconduct or criminal acts that occurred either before or after

the allegedly criminal conduct for which the defendant is stand-

ing trial." (Emphasis added.) On this same point, see the

supreme court's analysis in People v. Illgen, 145 Ill. 2d 353,

365, 583 N.E.2d 515, 519-20 (1991); see also People v. Johnson,

368 Ill. App. 3d 1146, 1154, 859 N.E.2d 290, 298 (2006). Persons

serving as jurors in defendant's case might view his possession

and viewing of the pornography in this case as "misconduct."

Accordingly, we will address defendant's contention regarding the

need for a limiting instruction in this context.

1. Defendant's Plain-Error Contention

A trial court's failure sua sponte to give an instruc-

tion that is normally required triggers a plain-error analysis to

bypass normal forfeiture principles only "when either (1) the

evidence is close, regardless of the seriousness of the error, or

(2) the error is serious, regardless of the closeness of the

- 59 -
evidence." People v. Herron, 215 Ill. 2d 167, 186-87, 830 N.E.2d

467, 479 (2005). The record in this case reveals that neither of

these circumstances is present here.

First, we reiterate that when the totality of the

evidence against defendant is considered, the State's evidence of

his guilt to be overwhelming. Because the evidence is not close,

defendant has failed to meet the first prong of the plain-error

test.

Second, the alleged error is not as serious as defen-

dant contends. That is, although we earlier noted that the

pornography evidence at issue in this case does technically

constitute "other-crimes evidence," as this court has earlier

broadly described that term, it is nonetheless a form of that

evidence which is both less often seen and less prejudicial

generally than the other form of "other-crimes evidence," which

is in fact evidence of other crimes. The reason for this dis-

tinction is simple: the primary danger associated with the

admission of other-crimes evidence is that the jury will view it

as establishing a defendant's propensity to commit crime. See

People v. Heard, 187 Ill. 2d 36, 58, 718 N.E.2d 58, 71 (1999).

The form of other-crimes evidence at issue in this case, which

may cast the defendant in a bad light, will almost never be as

potentially damaging to a defendant on trial as would be his

actual criminal conduct because the primary fear associated with

- 60 -
"other-crimes evidence"--namely, that it will be viewed as

propensity evidence--is not present.

We agree with defendant that on this record, the trial

court should at least have raised sua sponte the question of

whether the jury should be given a limiting instruction regarding

its consideration of the pornography evidence. For instance, the

court could have informed defendant that if he wished such an

instruction be given, the court was prepared to give one.

Nonetheless, because the evidence at issue did not constitute

evidence of actual criminal conduct by defendant, which would

raise the concerns about propensity evidence we earlier dis-

cussed, we reject defendant's contention that the absence of an

instruction here constituted plain error.

In so concluding, we also note that the supreme court

has described this second prong of plain-error analysis as

involving a clear and obvious error so serious that it affected

the fairness of a defendant's trial and challenged the integrity

of the judicial process, regardless of the closeness of the

evidence. People v. Piatkowski, 225 Ill. 2d 551, 565, 870 N.E.2d

403, 410-11 (2007). Further, "[t]he burden of persuasion remains

with the defendant under both prongs of the plain-error test."

People v. Lewis, 234 Ill. 2d 32, 43, 912 N.E.2d 1220, 1227

(2009). Judged in accordance with these standards, defendant's

plain-error argument falls far short.

- 61 -
 2. Defendant's Ineffective-Assistance-of-Counsel Claim

Defendant alternatively asserts that his trial coun-

sel's failure to request a limiting instruction constitutes

ineffective assistance of counsel. Although we are skeptical of

this claim, we nonetheless decline to reach the merits of defen-

dant's assertion because this claim is better pursued under the

Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 through 122-8

(West 2008)).

Claims of ineffective assistance of counsel are judged

pursuant to the standards established by the United States

Supreme Court in Strickland v. Washington, 466 U.S. 668, 80 L.

Ed. 2d 674, 104 S. Ct. 2052 (1984). The Strickland standard

requires a defendant to demonstrate that (1) defense counsel's

performance was so deficient such that "counsel was not function-

ing as the 'counsel' guaranteed the defendant by the [s]ixth

[a]mendment" and (2) but for defense counsel's deficient perfor-

mance, the result of the proceeding would have been different.

Strickland, 466 U.S. at 687, 694, 80 L. Ed. 2d at 693, 698, 104

S. Ct. at 2064, 2068. "Both prongs of the Strickland test must

be satisfied before a defendant can prevail on a claim of inef-

fective assistance of counsel." People v. Calvert, 326 Ill. App.

3d 414, 421, 760 N.E.2d 1024, 1030 (2001). To prove that coun-

sel's performance was deficient, a defendant must overcome the

strong presumption that the challenged action or inaction was the

- 62 -
product of sound trial strategy. Strickland, 466 U.S. at 689, 80

L. Ed. 2d at 694-95, 104 S. Ct. at 2065.

In People v. Kunze, 193 Ill. App. 3d 708, 726, 550

N.E.2d 284, 296 (1990), this court held that claims of ineffec-

tive assistance of counsel are often better made in proceedings

on a petition for postconviction relief, where a complete record

can be made. In Kunze, the defendant's claims of ineffective

assistance turned on whether defendant would have testified in

his own defense had he known that the State could use his prior

convictions to impeach him. Kunze, 193 Ill. App. 3d at 725, 550

N.E.2d at 296. This court declined to reach the merits of the

defendant's claims of ineffectiveness because nothing in the

record permitted such a determination to be made. Kunze, 193

Ill. App. 3d at 725-26, 550 N.E.2d at 296.

Here, as in Kunze, the record before us contains

nothing to review regarding defendant's counsel's trial strategy

related to an instruction limiting the other-crimes evidence.

Without a record, we are unwilling to deem counsel's failure to

submit a limiting instruction ineffective for purposes of Strick-

land, given that it appears that an argument can be made that

defense counsel's inaction fell within the bounds of reasonable

trial strategy--namely, that counsel did not want to further

"dirty up" his client in the eyes of the jury by drawing addi-

tional attention to such evidence. This is especially true

- 63 -
considering that in most other respects, counsel acted diligently

and professionally in this case. Because the answer to whether

counsel's decision was one of trial strategy is currently de hors

the record, we decline to consider it and instead will await

defendant's pursuit of such a claim under the Act (725 ILCS

5/122-1 through 122-8 (West 2008)).

C. Defendant's Claim That the Trial Court Erred by Not
Giving a Limiting Instruction to Evidence That He Was a
Peeping Tom and a Stalker

Defendant further contends that the trial court erred

by failing to give a limiting instruction to the jury regarding

the evidence the State presented that (as defendant describes it)

he was "a pervert who spent his nights roaming the streets of

Bloomington peering in windows and stalking women." We first

note that, as we discussed earlier, defendant failed to ask for

such a limiting instruction at trial. Thus, defendant is again

asking us to view this contention as either (1) plain error or

(2) ineffective assistance of counsel. For the same reasons

discussed in the previous section of this opinion, we reject

defendant's plain-error contention and decline to address his

ineffective-assistance-of-counsel claim.

Nonetheless, we note that defendant's characterization

of the State's evidence is hyperbole. The testimony in question

demonstrated instead that defendant engaged in odd or suspicious

behavior, but it was not criminal conduct and was not even

- 64 -
behavior that would necessarily cast defendant in a bad light.

For these reasons, defendant's argument here is not even as

strong as the one we previously rejected.

D. Defendant's Claim That the Trial Court Erred
by Denying His Motion for Change of Venue

Defendant next contends that the trial court erred by

denying his motion for change of venue. Specifically, defendant

asserts that because a number of the potential jurors--including

two jurors who were eventually empaneled--had formed opinions

about the case due to the extensive media coverage concerning

this case, he did not receive a fair trial. We disagree.

In People v. Little, 335 Ill. App. 3d 1046, 1052, 782

N.E.2d 957, 963 (2003), this court discussed when a defendant is

entitled to a change of venue, as follows:

"A defendant is entitled to a change of venue

as a result of pretrial publicity if a rea-

sonable apprehension exists that [he] cannot

receive a fair and impartial trial. People

v. Fort, 248 Ill. App. 3d 301, 309, 618 N.E.-

2d 445, 452 (1993). 'Exposure to publicity

about a case is not enough to demonstrate

prejudice because jurors need not be totally

ignorant of the facts and issues involved in

a case.' People v. Kirchner, 194 Ill. 2d

502, 529, 743 N.E.2d 94, 108 (2000). In-

- 65 -
 stead, what is essential is that the jurors

ultimately chosen must be able to lay aside

impressions or opinions and render a verdict

based upon the evidence at trial. People v.

Sutherland, 155 Ill. 2d 1, 16, 610 N.E.2d 1,

7 (1992). Thus, the relevant inquiry on

appeal is not how much pretrial publicity

occurred, but whether the defendant received

a fair and impartial trial. People v. Lucas,

132 Ill. 2d 399, 422, 548 N.E.2d 1003, 1011

(1989)."

"In evaluating a defendant's claim that his jury was prejudiced

due to pretrial publicity, a reviewing court must review the

entire record, including voir dire testimony, to determine

independently whether the defendant was denied a fair trial."

Kirchner, 194 Ill. 2d at 529, 743 N.E.2d at 108. Thus, the

court's focus is not on the mood of the general public but,

instead, it must be on the mood of the actual jury empaneled.

In this case, although a number of the jurors eventu-

ally empaneled had heard about the case, only two jurors, Larson

and Willenborg, claimed to have formed an opinion about the case.

During voir dire, the trial court inquired about these jurors'

ability to set aside their respective opinions and render a

verdict based upon the evidence at trial. The court first

- 66 -
addressed Larson, as follows:

"THE COURT: Okay, [a]ll right. Based on

the information that you have heard in the

past through the news media and so forth,

have you formed any opinions about this case

or about *** [d]efendant's guilt as you sit

here today?

MR. LARSON: Well, it's, the way they

gloss up a case, it's hard to say that he's

innocent.

THE COURT: Okay. So you have heard

things and *** you may have formed some opin-

ions based upon what you have previously

heard?

MR. LARSON: Correct.

THE COURT: Okay. All right. If you

were to be selected as a juror in this case,

the [c]ourt would instruct you that you are

to decide the case only on the basis of the

evidence that you hear in the courtroom and

the instructions of law that are presented to

the jury at the end of the case; that is, you

are to disregard anything that you may have

heard or read about the case outside of the

- 67 -
 evidence presented here in the courtroom. If

you were selected as a juror in this case, do

you believe that you could disregard what you

may have heard or read about the case and

decide the case only on the evidence pre-

sented in court and the law that you will be

given by the [c]ourt? Do you believe that

you could do that?

MR. LARSON: It would be difficult but I

think I can.

THE COURT: All right. Now, when you say

it would be difficult but you think you can

do that, [is the court] to understand that

what you are saying is you have some opin-

ions, but you believe you could set those

aside, listen to *** all the evidence, and

then decide the case based on the evidence

that you hear? You believe you could do

that?

MR. LARSON: That's correct."

The court then turned its attention to Willenborg, as follows:

"THE COURT: Okay. As you sit hear to-

day, do you have an opinion as to whether ***

[d]efendant is guilty in this case?

- 68 -
 MS. WILLENBORG: Yes.

THE COURT: If you were selected to serve

as a juror in this case, do you believe that

you could disregard what you may have heard

or read or talked about with others and set

aside that opinion and decide this case only

on the evidence which will be presented in

open court and the law that the [c]ourt will

give you? Do you think you could do that?

MS. WILLENBORG: Yes.

THE COURT: In other words, do you think

you could be fair and impartial to both sides

without regard to the opinion you may have

formed:

MS. WILLENBORG: Yes."

As this exchange demonstrates, each of the panelists in

this case convinced the trial court that he or she could be fair

and impartial--that is, each agreed that he or she could deter-

mine whether defendant was guilty based only upon the evidence

presented at trial. Accordingly, we conclude that the court did

not err by denying defendant's motion for a change of venue. In

so concluding, we note that the court's analysis of this issue

was entirely correct, particularly its observation that the

actual voir dire examination of potential jurors is the best

- 69 -
method for determining whether pretrial publicity has resulted in

prejudice against a defendant so as to warrant granting his

motion for a change of venue.

In support of our conclusion, we find support in the

recent decision of the United States Supreme Court in Skilling v.

United States, 561 U.S. ___, 177 L. Ed. 2d 619, 130 S. Ct. 2896

(2010), wherein the Court rejected the defendant's argument that

he was deprived of his constitutional right to a fair trial when

the trial court denied his motion to move his trial (which

involved charges of fraud arising from the Enron collapse) to a

different venue. In rejecting the defendant's claim, the Court

wrote that "our decisions *** 'cannot be made to stand for the

proposition that juror exposure to ... news accounts of the crime

... alone presumptively deprives the defendant of due process.'"

Skilling, 561 U.S. at ___, 177 L. Ed. 2d at 643, 130 S. Ct. at

2914, quoting Murphy v. Florida, 421 U.S. 794, 799, 44 L. Ed. 2d

589, 594, 95 S. Ct. 2031, 2036 (1975). The Court further reiter-

ated that "[j]urors are not required to be 'totally ignorant of

the facts and issues involved'; 'scarcely any of those best

qualified to serve as jurors will not have formed some impression

or opinion as to the merits of the case.'" Skilling, 561 U.S. at

___, 177 L. Ed. 2d at 643, 130 S. Ct. at 2915, quoting Irwin v.

Dowd, 366 U.S. 717, 722, 6 L. Ed. 2d 751, 756, 81 S. Ct. 1639,

1642 (1961). The Court also explained the preeminent role of the

- 70 -
trial court regarding this question, writing as follows:

"Jury selection, we have repeatedly empha-

sized, is 'particularly within the province

of the trial judge.' [Citations.]

When pretrial publicity is at issue,

'primary reliance on the judgment of the

trial court makes [especially] good sense'

because the judge 'sits in the locale where

the publicity is said to have had its effect'

and may base her evaluation on her 'own per-

ception of the depth and extent of news sto-

ries that might influence a juror.' [Cita-

tion.] Appellate courts making after-the-

fact assessments of the media's impact on

jurors should be mindful that their judgments

lack the on-the-spot comprehension of the

situation possessed by trial judges.

Reviewing courts are properly resistant

to second-guessing the trial judge's estima-

tion of a juror's impartiality, for that

judge's appraisal is ordinarily influenced by

a host of factors impossible to capture fully

in the record--among them, the prospective

juror's inflection, sincerity, demeanor,

- 71 -
 candor, body language, and apprehension of

duty. [Citation.] In contrast to the cold

transcript received by the appellate court,

the in-the-moment voir dire affords the trial

court a more intimate and immediate basis for

assessing a venire member's fitness for jury

service." Skilling, 561 U.S. at ___, 177 L.

Ed. 2d at 646, 130 S. Ct. at 2917-18.

E. Defendant's Claim That the Trial Court Erred
by Excluding Fulero's Expert Testimony

Defendant next contends that the trial court erred by

granting the State's motion in limine to exclude Fulero's expert

testimony. Specifically, defendant asserts that the court

improperly reasoned that defendant had not provided sufficient

proof (1) of what Fulero's testimony would be and (2) that

Fulero's testimony would not invade the province of the jury. We

disagree.

"'A trial judge has discretion in granting a motion in

limine and a reviewing court will not reverse a trial court's

order allowing or excluding evidence unless that discretion was

clearly abused.'" Gallina v. Watson, 354 Ill. App. 3d 515, 518,

821 N.E.2d 326, 329 (2004), quoting Swick v. Liautaud, 169 Ill.

2d 504, 521, 662 N.E.2d 1238, 1246 (1996). Failure on the part

of a defendant to make a proper offer of proof forfeits review of

his challenge to the trial court's granting of a motion in

- 72 -
limine. People v. Roberson, 401 Ill. App. 3d 758, 768, 927

N.E.2d 1277, 1287 (2010).

When a defendant claims that he has not been given the

opportunity to prove his case because the trial court improperly

barred evidence, he "must provide [the] reviewing court with an

adequate offer of proof as to what the excluded evidence would

have been." In re Estate of Romanowski, 329 Ill. App. 3d 769,

773, 771 N.E.2d 966, 970 (2002). Such an offer of proof serves

dual purposes: (1) it discloses to the court and opposing counsel

the nature of the offered evidence, thus enabling the court to

take appropriate action, and (2) it provides the reviewing court

with an adequate record to determine whether the trial court's

action was erroneous. People v. Thompkins, 181 Ill. 2d 1, 10,

690 N.E.2d 984, 989 (1998).

The traditional way of making an offer of proof is the

"formal" offer, wherein counsel offers the proposed evidence or

testimony by placing a witness on the stand, outside the jury's

presence, and asking him questions to elicit with particularity

what the witness would testify to if permitted to do so. People

v. Wallace, 331 Ill. App. 3d 822, 831, 772 N.E.2d 785, 794

(2002).

In lieu of a formal offer of proof, counsel may request

permission from the trial court to make representations regarding

the proffered testimony. As a matter of the court's discretion,

- 73 -
the court may allow such an "informal" offer of proof.

A trial court may deem an informal offer of proof

sufficient if counsel informs the court, with particularity, (1)

what the expert testimony will be, (2) by whom it will be pre-

sented, and (3) its purpose. Kim v. Mercedes-Benz, U.S.A., Inc.,

353 Ill. App. 3d 444, 451, 818 N.E.2d 713, 719 (2004). However,

an informal offer of proof is inadequate if counsel (1) "merely

summarizes the witness' testimony in a conclusory manner" (Snels-

on v. Kamm, 204 Ill. 2d 1, 23, 787 N.E.2d 796, 808 (2003)) or (2)

offers unsupported speculation as to what the witness would say

(People v. Andrews, 146 Ill. 2d 413, 421, 588 N.E.2d 1126, 1132

(1992)).

In any event, it remains entirely within the trial

court's discretion whether to accept an informal offer of proof

in lieu of the formal offer consisting of testimony from the

witness stand. Although it would be helpful for the court to

address this issue explicitly--that is, to inform counsel on the

record whether the court is satisfied with counsel's informal

offer of proof--if the court fails to do so sua sponte, the

obligation to obtain such a ruling remains with counsel. Espe-

cially given how easy it is for counsel to obtain such a ruling

from the court, we are disinclined to engage in speculation about

whether the court was willing to accept an informal offer of

proof if the record is not explicit on that point. Thus, absent

- 74 -
such an explicit record, it was incumbent upon defendant's

counsel to make a formal offer of proof to the court to preserve

for appeal the court's ruling that the testimony in question was

not admissible.

Here, the record is clear that the trial court explic-

itly rejected any informal offer of proof. The court made clear

its position regarding the offer of proof as to Fulero's testi-

mony, as follows:

"[F]rankly[, the court is] very frus-

trated at that. [The court is] at a loss in

how to *** rule on this motion without [know-

ing what] the evidence *** is going to be.

So[, the court's] ruling on the State's

[m]otion *** [is] this; the motion is allowed

unless and until the court is presented with

certain evidence that this eyewitness expert

has real probative evidence that does not

invade the province of the jury in determin-

ing credibility of witnesses."

A few days later, defendant filed a motion to recon-

sider, in which counsel again attempted to make an informal offer

of proof. In response, the trial court entered its findings as

follows:

"Today in [defendant's] motion to recon-

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sider, *** defendant has filed and attached

to the motion to reconsider exhibit A[,]

which is *** titled ['A] brief outline of

testimony['] and is purported to be an out-

line of the testimony to be presented by ***

Ful[e]ro. The court certainly understands

the concern raised by [defense counsel] here

and [the court is] not *** suggesting any

kind of fraud here[, b]ut this is simply a

document, a typed page that is not attribut-

able in terms of authorship to anyone[.] It

is not an official report of *** Fulero, and

it is simply an outline of those subjects ***

that he would apparently testify about in

terms of the general theory of memory and

what affects memory and various stages of the

memory process in human beings, specifi-

cally[,] eyewitnesses.

It does not indicate that the *** pro-

posed witness has reviewed any evidence in

this case. It does not purport to provide

any opinions of *** Fulero regarding his

opinions regarding the eyewitness identifica-

tions in this case such that they are and it

- 76 -
 certainly does not in any way provide the

court with any additional information as to

how his testimony relates to the facts of

this case.

* * *

[W]e are not any further today [(April

the 21st)] then we were on April the 7th.

[The court has] some understanding of what

the eyewitness would testify to in general

***. [However], none of that has been re-

lated to any of the specific facts in this

case. The witness has not tendered any ex-

pert opinion as to the facts in this case

***[. At] this point[, the court has] no

idea what this expert witness would testify

to that would be relevant to the facts in

this particular case.

[F]or that reason[,] the motion to re-

consider is denied."

Because defendant failed to make an adequate offer of

proof--that is, a formal offer of proof (as required by the trial

court) of Fulero's testimony from the witness stand--we have no

way of knowing whether the excluded testimony would have (1) been

admissible or (2) assisted the jury in its determination of

- 77 -
guilt. Thus, defendant's failure to make an adequate offer of

proof deprives this court of the record required to determine

whether the court abused its discretion by granting the State's

motion in limine to exclude Fulero's expert testimony.

F. Defendant's Claim That the Trial Court Erred by Failing To
Question the Jurors Regarding the Presumption of Innocence

Defendant next contends that the trial court erred by

failing to sua sponte question the jurors regarding the presump-

tion of innocence. In particular, defendant asserts that the

court failed to comply with Supreme Court Rule 431(b) (Official

Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May

1, 2007), which requires, in pertinent part, that "[t]he court

shall ask each potential juror, individually or in a group,

whether that juror understands and accepts *** that the defendant

is presumed innocent of the charge(s) against him." Defendant

posits that the court's failure to specifically ask each juror

whether he or she understood that he was presumed innocent

warrants a new trial. We disagree.

1. Forfeiture and Plain Error

As a preliminary matter, we note that defendant con-

cedes that he has forfeited review of this issue. Nonetheless,

defendant maintains the issue may be addressed by this court

because it constitutes plain error.

Under the plain-error doctrine, a reviewing court may

consider an otherwise forfeited error when (1) the evidence is so

- 78 -
closely balanced that the jury's guilty verdict may have resulted

from the error or (2) the error is so serious that the defendant

was denied a fair trial. People v. McLaurin, 235 Ill. 2d 478,

489, 922 N.E.2d 344, 351 (2009). However, before we decide in

this instance whether plain-error review is appropriate, we will

first determine whether the trial court erred at all.

2. Zehr and Rule 431(b)

In People v. Zehr, 103 Ill. 2d 472, 477-78, 469 N.E.2d

1062, 1064 (1984), the supreme court held that a trial court errs

when, during voir dire, it fails to ensure that jurors understand

that (1) the defendant is presumed innocent, (2) the State must

prove defendant guilty beyond a reasonable doubt, (3) the defen-

dant need not present any evidence on his own behalf, and (4) the

defendant's decision not to testify cannot be held against him.

In 2007, the supreme court amended Rule 431(b) to

require trial courts to sua sponte ask each potential juror

whether they understand and accept the Zehr principles. People

v. Graham, 393 Ill. App. 3d 268, 273, 913 N.E.2d 99, 103 (2009).

Specifically, Rule 431(b) states, in pertinent part, as follows:

"The court shall ask each potential

juror, individually or in a group, whether

that juror understands and accepts the [Zehr]

principles ***.

The court's method of inquiry shall

- 79 -
 provide each juror an opportunity to respond

to specific questions concerning the princi-

ples set out in this section." Official

Reports Advance Sheet No. 8 (April 11, 2007),

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

3. This Court's Rule 431(b) Precedent

In People v. Owens, 394 Ill. App. 3d 147, 914 N.E.2d

1280 (2009), and People v. Yusef, 399 Ill. App. 3d 817, 822, 928

N.E.2d 143, 148 (2010), this court concluded that despite recit-

ing the Zehr principles to the venire en masse, the trial court

erred because it failed to directly ask the jurors--pursuant to

the second paragraph of Rule 431(b)--whether they understood

those principles. Similarly, in Roberson, 401 Ill. App. 3d at

766, 927 N.E.2d at 1285, this court held that the trial court

erred by failing to ask the jurors--pursuant to the first para-

graph of Rule 431(b)--all the Zehr questions. Having reviewed

the record in this case, we conclude that Owens, Yusef, and

Roberson are distinguishable and that our holding in People v.

Willhite, 399 Ill. App. 3d 1191, 1197, 927 N.E.2d 1265, 1270

(2010), guides our analysis in this case.

In Willhite, the trial court recited the Zehr princi-

ples to the jurors at the start of voir dire but also questioned

the jurors regarding their understanding and acceptance of the

Zehr principles after dividing them into smaller panels. Willhi-

- 80 -
te, 399 Ill. App. 3d at 1195-96, 927 N.E.2d at 1269. From those

smaller panels, the jurors collectively acknowledged that they

understood and accepted the Zehr principles. Willhite, 399 Ill.

App. 3d at 1196, 927 N.E.2d at 1269. This court held that in

doing so, "the trial court committed no error." Willhite, 399

Ill. App. 3d at 1197, 927 N.E.2d at 1270.

4. The Trial Court's Zehr Questioning in This Case

Prior to trial, the trial court explained the Zehr

principles to the 40-person pool of potential jurors, as follows:

"Ladies and gentlemen, in this case,

[defendant], as with any other person who is

charged with a crime, is presumed innocent of

the charges that bring him before you. This

presumption is with him now at the onset of

this trial, and it will remain with him

throughout the course of the proceedings ***.

[This] is not overcome unless and until each

of you individually and collectively are

convinced beyond a reasonable doubt that ***

[d]efendant is guilty. It is absolutely

essential as we select this jury that each of

you understands and employs these certain

fundamental principles; that is, that all

persons charged with a crime are presumed to

- 81 -
 be innocent. And it is the burden of the

State *** to prove *** [d]efendant guilty

beyond a reasonable doubt. What this means

is that *** [d]efendant has no obligation to

testify in his own behalf or to call any

witnesses in his defense. ***

The fact that *** [d]efendant chooses

not to testify must not be considered by you

in any way in arriving at your verdict. ***

The bottom line, however, is that there

is no burden upon *** [d]efendant to prove

his innocence. It is the State's burden to

prove him guilty beyond a reasonable doubt."

The court then divided the potential jurors into smaller panels--

mostly of four--for questioning. As part of its questioning, the

court asked each group, in pertinent part, the following ques-

tions, to which the jurors collectively responded:

"[THE COURT: W]hen [the court] was ad-

dressing the entire group, [it] touched on

some general principles of the law that apply

to all criminal cases. Now, one of those was

the presumption of innocence. Do each of you

understand and accept that this means that

*** [d]efendant does not need to prove his

- 82 -
 innocence?

Seeing all positive responses.

* * *

[THE COURT:] Do each of you understand

that he does not need to testify, and that if

he chooses not to testify, that you must not

consider that in any way in arriving at a

verdict? Each of you understand that?

Seeing all positive responses."

Here, as in Willhite, the trial court recited the Zehr

principles to the jurors at the start of voir dire but also

questioned the jurors regarding their understanding and accep-

tance of the Zehr principles after dividing them into smaller

panels. From the smaller panels, the jurors collectively ac-

knowledged that they understood and accepted those Zehr princi-

ples, and in particular, that defendant was presumed innocent of

the charges against him. Therefore, we conclude, as we did in

Willhite, that the trial court complied with Rule 431(b).

Accordingly, we need not decide whether the court committed plain

error in this case.

G. Defendant's Claim That the State's Evidence Was Insufficient
To Prove Him Guilty of Sexually Assaulting A.M.

Defendant next contends that the State failed to prove

him guilty beyond a reasonable doubt of sexually assaulting A.M.

Specifically, defendant contends that because (1) A.M. could not

- 83 -
identify her attacker, (2) the State failed to produce deoxyribo-

nucleic acid (DNA) linking him to the attack, (3) he was working

during the time of her attack, (4) "material differences" existed

between her attack and those committed against the other victims,

and (5) other potential perpetrators were not sufficiently

pursued, the State failed to prove beyond a reasonable doubt that

he committed the aggravated criminal sexual assault of A.M.

Defendant misconstrues the focus of our sufficiency-of-the-

evidence review. The question is not, "What did the State fail

to show?" but, instead, "Was the evidence the State presented

sufficient to prove that defendant perpetrated the crimes

charged?" We answer this latter question in the affirmative.

"We review a defendant's challenge to the sufficiency

of the evidence to determine whether, after viewing the evidence

in the light most favorable to the State, any rational trier of

fact could have found the essential elements of the offense

beyond a reasonable doubt." People v. Grimes, 386 Ill. App. 3d

448, 455, 898 N.E.2d 768, 774-75 (2008). "This same standard of

review applies regardless of whether the evidence is direct or

circumstantial." People v. Cooper, 194 Ill. 2d 419, 431, 743

N.E.2d 32, 40 (2000). The jury's findings are entitled to great

weight, given that it is in the best position to judge the

credibility and demeanor of the witnesses. People v. Wheeler,

226 Ill. 2d 92, 114-15, 871 N.E.2d 728, 740 (2007). Moreover,

- 84 -
the jury need not conclude beyond a reasonable doubt as to each

link in the chain of circumstances. People v. Slater, 393 Ill.

App. 3d 977, 982, 924 N.E.2d 1039, 1044 (2009). Instead, the

jury need only be satisfied that all the evidence, taken to-

gether, shows that the defendant committed the crime charged

beyond a reasonable doubt. Slater, 393 Ill. App. 3d at 982, 924

N.E.2d at 1044. In reaching its verdict, the jury is not re-

quired to (1) disregard inferences that flow normally from the

evidence presented or (2) search out all possible explanations

consistent with innocence and raise them to the level of reason-

able doubt. Slater, 393 Ill. App. 3d at 982, 924 N.E.2d at 1044.

An accused commits aggravated criminal sexual assault,

in pertinent part, when he commits an act of sexual penetration

by the use of force or threat of force, while displaying, threat-

ening to use, or using a dangerous weapon other than a firearm.

720 ILCS 5/12-14(a)(1) (West 2006).

Here, the State presented the following evidence that

defendant committed aggravated criminal sexual assault against

A.M.: (1) defendant logged off duty at 3:44 a.m.; (2) the sexual

assault took place at approximately 4:30 a.m.; (3) A.M.'s at-

tacker wore a black ski mask, jeans, and a black coat, which were

similar to the items worn by the perpetrator of the other sexual

assaults charged in this case and linked to defendant; (4) A.M.'s

attacker (a) shined a flashlight on her, (b) put twine around her

- 85 -
neck, (c) threatened her at knifepoint, (d) ordered her to take

off all her clothes, (e) told her that he had been watching her,

(f) inquired about her roommate, (g) performed oral sex on her,

and (h) put his fingers in her vagina, as in the other sexual

assaults charged in this case and linked to defendant; and (5)

defendant accessed--for no apparent legitimate law enforcement

reason--(a) A.M.'s and her roommate's personal information

through LEADS by running their license plate numbers and (b)

A.M.'s parent's personal information through the NCIC database

the month before the sexual assault on A.M.

This evidence, and our reading of the record as a

whole, compels the conclusion that the same perpetrator committed

all the crimes in this case--that is, as we used the term ear-

lier, they were signature crimes, committed by the same assail-

ant. The jury could consider--as do we--the strength of the

State's case linking defendant to each of those signature crimes

individually. Accordingly, we conclude that the State presented

far more than merely sufficient evidence to prove defendant

guilty beyond a reasonable doubt in connection with the aggra-

vated criminal sexual assault of A.M.

H. Defendant's Claim That His Sentence Enhancements for Using a
Weapon Against K.H., A.L., and S.K. Violate the Proportionate-
Penalties Clause of the Illinois Constitution

Defendant next contends that his sentencing enhance-

ments for aggravated criminal sexual assault while armed with a

- 86 -
knife or firearm (counts related to K.H., A.L., and S.K.) (720

ILCS 5/12-14(a)(1), (a)(8) (West 2006)) violate the

proportionate-penalties clause of the Illinois Constitution (Ill.

Const. 1970, art. I, §11) when compared to the offense of armed

violence with a category I or category II weapon predicated upon

criminal sexual assault (720 ILCS 5/33A-2(a) (West 2006)).

Specifically, defendant asserts that the two offenses are "com-

prised of substantially identical elements" but have different

sentences. We agree with defendant insofar as a firearm is

concerned.

The supreme court has established two alternative ways

in which a defendant may challenge a statute based on

proportionate-penalties grounds. See People v. Sharpe, 216 Ill.

2d 481, 517-18, 839 N.E.2d 492, 514-15 (2005). A defendant may

argue that a penalty (1) violates the "cruel or degrading"

standard or (2) is harsher than the penalty for an offense with

identical elements. People v. McCarty, 223 Ill. 2d 109, 137, 858

N.E.2d 15, 33 (2006).

"Courts have a duty to construe a statute in a manner

that upholds its validity and constitutionality if it reasonably

can be done." People v. Baker, 341 Ill. App. 3d 1083, 1087, 794

N.E.2d 353, 357 (2003). Because such challenges attack the

constitutionality of statutes--which is an issue of law--our

review is de novo. People v. Klepper, 234 Ill. 2d 337, 348, 917

- 87 -
N.E.2d 381, 386 (2009).

This court recently rejected the argument defendant

posits related to enhancements based upon the use of a knife, as

follows:

"The elements of aggravated criminal

sexual assault are achieved when an accused

(1) commits a criminal sexual assault (2)

while displaying, threatening to use, or

using (3) a dangerous weapon other than a

firearm--such as, a knife. 720 ILCS 5/12-

14(a)(1) (West 2006). The elements of armed

violence with a category II weapon predicated

upon criminal sexual assault are achieved

when an accused (1) commits criminal sexual

assault (2) while armed with (3) a category

II weapon--such as a knife. 720 ILCS 5/33A-

1(c)(2), 33A-2(a) (West 2006).

The plain language of these statutes

reveals that their elements are not identi-

cal. That is, an accused could commit aggra-

vated criminal sexual assault by committing

sexual assault, while threatening to use--

although not actually armed with--a knife.

Such an act would not substantiate a charge

- 88 -
 of armed violence with a category II weapon

predicated upon criminal sexual assault be-

cause the accused would not have been armed."

(Emphasis in original.) People v. Henderson,

394 Ill. App. 3d 747, 754-55, 915 N.E.2d 473,

479 (2009).

We continue to adhere to our holding in Henderson as to

the sentencing enhancements related to the knife (the category II

weapon). However, after reviewing the statutory provisions, we

conclude that the aggravated criminal sexual assault predicated

upon the accused having been armed with a firearm--that is, when

an accused (1) commits a criminal sexual assault (2) while armed

with a firearm (720 ILCS 5/12-14(a)(8) (West 2006))--when com-

pared to armed violence with a category I weapon predicated upon

criminal sexual assault--that is, when an accused (1) commits

criminal sexual assault (2) while armed with (3) a category I

weapon--such as firearm (720 ILCS 5/33A-1(c)(2), 33A-2(a) (West

2006))--violates the proportionate-penalties clause. In other

words, aggravated criminal sexual assault predicated upon the

accused having been armed with a firearm (720 ILCS 5/12-14(a)(8)

(West 2006)) and armed violence with a category I weapon predi-

cated upon criminal sexual assault (720 ILCS 5/33A-1(c)(2), 33A-

2(a) (West 2006)) have identical elements.

Accordingly, we vacate the 15-year enhancements--that

- 89 -
is, those enhancements based on the use of a firearm--for defen-

dant's aggravated-criminal-sexual-assault conviction and remand

with directions that the trial court issue an amended written

judgment to so reflect. See Baker, 341 Ill. App. 3d at 1090, 794

N.E.2d at 359 (vacating the defendant's 15-year enhancement for

aggravated-kidnaping conviction and remanding with directions

that the trial court amend its written judgment).

In closing, we note that some of the crimes that were

enhanced based upon the use of a firearm appear to have been

eligible for enhancement based upon defendant's use of a knife as

well. For the reasons we have explained, enhancements in this

context based upon the use of a knife do not run afoul of the

proportionate-penalties clause and, if appropriate, may be used

by the trial court on remand to enhance defendant's sentence.

III. CONCLUSION

For the reasons stated, we affirm in part, vacate in

part, and remand with directions. As part of our judgment, we

award the State it $75 statutory fee against defendant as costs

of this appeal.

Affirmed in part and vacated in part; cause remanded

with directions.

TURNER and APPLETON, JJ., concur.

- 90 -