No. 3--03--0468

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2005

BACKGROUND

The victim, A.P. (born on September 23, 1991), is the adopted child of the defendant andhis wife. Prior to being adopted by the P.'s in April of 1999, A.P. resided with the F.'s forapproximately one year. William F. is Mrs. P.'s brother. On March 11, 2002, A.P. reported toher special education teacher, Ms. May, that she had been touched inappropriately by thedefendant. On March 12, 2002, she was interviewed by sheriff's deputy John Ellena andDepartment of Children and Family Services (DCFS) investigator Judy O'Brien. During theinterview, A.P. described a long-standing course and pattern of abuse beginning shortly after shewas adopted by defendant. O'Brien filed a report with the State indicating that there was credibleevidence to support A.P.'s allegations of sexual abuse.

On March 18, 2002, A.P. was interviewed by Kari Koster, the director of Henry CountyChildren's Advocacy Center. In the videotaped interview, Koster posed open-ended questions toA.P. about the abuse. In response, A.P. gave detailed answers describing the abuse to which shehad been subjected, including times, dates and details concerning specific incidents of abuse. A.P.also exhibited sexual knowledge that Koster considered advanced for a 10-year old child. Thisvideotaped interview was played to the jury during Koster's trial testimony despite defendant'sobjection.

O'Brien and Koster were witnesses at trial and questioned regarding their qualifications. Koster testified that she worked as a "forensic interviewer" who interviewed children to discoverthe existence of sexual abuse. She stated she had attended several conferences and trainingclasses related to interviewing abused children and that she had interviewed over 300 abusedchildren as a forensic interviewer. O'Brien testified that she had worked for DCFS for 10 yearsand had interviewed over 1,000 children.

Koster was asked to describe her interviewing technique. She responded that sheattempted to elicit from the child a stream-of-consciousness narrative describing the abusewithout the use of specific cues or questions. Koster was allowed to comment on whether, in heropinion, A.P.'s accusations were credible. Koster believed they were. O'Brien was also allowedto testify whether she believed A.P. to be credible. She did.

On March 13, March 26, and April 30 of 2002, A.P. was examined by Nancy Auer. Ms.Auer is a nurse at the Pediatric Resource Center. During the initial examination, the nurse notedan abrasion on A.P.'s hymen. Ms. Auer testified this was consistent with sexual abuse. In thesecond examination, Ms. Auer noted that the abrasion appeared to be healing. In the thirdexamination, Ms. Auer observed continued healing of the abrasion and also observed severalblisters that had erupted in A.P.'s clitoral area and on her labia majora. A culture from the blistersindicated the presence of the herpes II virus, commonly referred to as genital herpes.

A.P.'s medical history indicated that in July of 2000, she was examined by physicianassistant Robert Girard, who diagnosed her with herpes and noted that she was suffering from her"primary outbreak." Girard testified that his examination of A.P. revealed that she exhibitedsymptoms of genital herpes, and therefore, he referred her to Dr. Sean Bailey to perform a bloodtest. The blood test confirmed the existence of the herpes virus.

Physician assistant Girard further testified that approximately one year prior to diagnosingA.P. with genital herpes, he diagnosed the defendant with genital herpes. Girard ordered no viraltest on the defendant but prescribed an antiviral medication. The defendant's herpes infection wasconfirmed on April 17, 2000, when he was examined by Dr. Constantino Perales. Blood testsperformed by Perales confirmed the presence of both the herpes I and herpes II viruses.

Dr. Sean Bailey testified on behalf of defendant. Dr. Bailey testified that he saw A.P. as apatient on August 2, 2000. The purpose of her visit revolved around some lesions in her genitalarea. Cultures taken from the lesions came back positive for herpes. Dr. Bailey noted that he"talked with [A.P.] in the presence of her mother, defendant's wife, and asked her if she'd everbeen touched or had anybody done anything with her in her genital area," and "she said no."

Defense counsel then asked Dr. Bailey if herpes can be transmitted nonsexually. Dr.Bailey stated, "There's some speculation that it can. You can get it through kissing of course, andyou can - there's some speculation that you can get it through autoinoculation." He continued ondirect examination to note that he had "never seen a case" of autoinoculation but, in his opinion, ittheoretically could happen. On cross-examination, Dr. Bailey stated that he had never seen anyproven case studies noting herpes could be transmitted by autoinoculation. When discussing hisfailure to report the fact that an eight-year-old patient of his had genital herpes, a sexuallytransmitted disease, to DCFS, Dr. Bailey stated that in hindsight, "Yeah, I would have reported toDCFS."

A.P. testified that she lived with the P.'s for three to four years. She used to go shoppingwith her mother and, at times, watch television with the defendant. She stated that the defendanttouched parts of her body that he "wasn't supposed to." After claiming that these parts includedher "front private," she identified her genital area on a chart as the area which defendantinappropriately touched.

She testified that he touched this area both with his hand and his penis. He would startwith his hand while she was either sitting or lying down. The touching took place inside herclothes. The first time the touching took place was within a few weeks after she moved in withthe P.'s.

She stated that the defendant told her not to tell anyone about these encounters. Whenthey were over, defendant would go into the bathroom, get cleaned up and tell A.P. to do thesame. At times, A.P. would have to wash off a "clear liquid." The defendant would, at times, useVaseline on himself and A.P.

On cross-examination, A.P. stated that these encounters happened "almost" every day. A.P. stated that on March 11, 2002, she told her special education teacher about the touching. On that day, she mentioned that the last encounter took place on March 10, 2002.

A.P. admitted during her testimony that she lied to her special education teacher on March11, 2002, when she told the teacher that the defendant inappropriately touched her on March 10,2002. A.P. also admitted to telling therapist Diane Funk, in 1999, that no one hadinappropriately touched her. At trial, A.P. stated that the last time the defendant inappropriatelytouched her was August of 2001.

The defendant presented several witnesses in an attempt to impeach A.P.'s credibility andbolster his own. Therapist Diane Funk had seen A.P. on two occasions in 1999. Funk testifiedthat A.P.'s mother (defendant's wife) took A.P. to Funk for issues related to lying andmasturbating. At the initial appointment, Funk asked A.P. whether she had been touchedinappropriately and A.P. responded that she had not.

The defendant also called Gene Randolph as a witness. Randolph was the Putnam Countyschool psychologist. He testified that A.P. had a reputation for lying and that he would notbelieve her, even if she testified under oath. The defendant's brother-in-law, William F., alsotestified. He stated that he had been A.P.'s adoptive father prior to the defendant and stated thatA.P. had a reputation for lying. Furthermore, Patrick Lewis, a friend of the defendant's, alsotestified that A.P. had a reputation for lying.

The defendant testified on his own behalf. He stated that on March 11, 2002, A.P. wasupset with him and his wife because they would not allow her to see J.I., a 15-year-old boy. Hetestified that he and his wife had previously disciplined A.P. for seeing this boy. He deniedsexually abusing A.P., but admitted that he had herpes. He stated that he had noticed A.P. hadcold sores, which are a form of herpes.

The defendant's wife testified that A.P. had never told her that the defendant was abusive. Furthermore, she had never seen the defendant act inappropriately. The defendant's wifeconfirmed that on March 11, 2002, she had an argument with A.P. regarding a 15-year-old boy. A.P. was upset about not being able to see J.I., and the defendant's wife was upset about A.P.stealing and lying. A.P. allegedly told the wife during this argument that the wife "would pay" fornot allowing A.P. to see J.I.

Prior to trial, the court ruled on a number of motions in limine. One of these included theState's motion to bar the defendant from presenting testimony from his wife and varioushouseguests suggesting that the defendant did not have the opportunity to commit the crimes forwhich he was accused. The purpose of this testimony was to show that there were houseguests inthe defendant's small house on nights when the abuse allegedly occurred and the defendant wouldnot have had the opportunity to commit the abuse in such a small, full house. The court grantedthe State's motion, finding that the evidence regarding the houseguests was of "extremely limited"probative value.

The State filed a motion to bar testimony that A.P. had previously alleged that J.I. kissedher and asked her for oral sex. The court granted this motion and barred the evidence pursuant tothe Illinois rape shield statute (725 ILCS 5/115--7 (West 2002)).

The State also filed a motion to bar evidence related to A.P.'s mental health treatment. Specifically, the State sought to bar evidence that A.P. told Girard that she had sought treatmentfor a lying problem in the past and that she often lied without knowing why. This motion alsosought to prohibit the defendant's wife from testifying that she took A.P. for mental healthtreatment because of A.P.'s lying and masturbation. The court granted the State's motion andbarred the evidence pursuant to a provision of the Mental Health and Developmental DisabilitiesConfidentiality Act (740 ILCS 110/10(a) (West 2002)).

Finally, the State filed a motion to bar evidence that A.P. falsely accused the defendant ofbiting her. The court found such evidence not probative and granted the State's motion.

In his appeal, the defendant argues that the evidentiary rulings made below denied him afair trial by preventing him from fully testing the State's case and presenting his defense. Hefurther alleges that it was error for the court to allow the opinion testimony of Koster and O'Brienand to allow the entry of prior consistent statements of A.P.

ANALYSIS

The gravamen of defendant's appeal is that the trial court's rulings, when taken as a whole,deprived him of the opportunity to put on a viable defense. Specifically, defendant makes thefollowing claims:

1. The trial court erred when it prohibited defendant's wife from testifying as to thenumber of people who lived or stayed at defendant's residence;

2. The trial court erred when it precluded evidence that A.P. made accusations of sexualmisconduct by J.I.;

3. The trial court erred when it precluded evidence regarding A.P.'s psychologicaltreatment;

4. The trial court erred when it precluded evidence that A.P. had made prior falseallegations against defendant claiming that he bit her;

5. The trial court erred by allowing lay witnesses Kari Koster and Judy O'Brien to presentexpert testimony and comment on A.P.'s credibility;

6. The trial court erred by admitting A.P.'s prior consistent statements;

7. The trial court erred in admitting a videotaped interview of A.P.;

8. Defendant was denied effective assistance of counsel;

9. The evidence admitted at trial failed to prove defendant guilty beyond a reasonabledoubt;

10. The trial court abused its discretion in sentencing defendant; and

11. The consecutive sentences imposed by the trial court violated the holding of Apprendiv. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).

We address defendant's claims of error in the order presented.
 

Persons Living With or Staying
Overnight at Defendant's Residence

Defendant claims that the trial court committed error when it granted the State's motion inlimine, which sought to bar the defendant's wife from testifying as to who lived or stayed at thedefendant's residence. Defendant attempted to introduce this testimony to show that he lackedthe opportunity to commit the offenses as accused by A.P. Defendant also attempted to call, aswitnesses, these houseguests. The State, while arguing its motion in limine, brought to thecourt's attention that none of these witnesses had been disclosed in pretrial discovery. The courtthen stated, "If you haven't disclosed those people, obviously they will be barred from testimony. It's not a trial by surprise, but that issue aside, [the State's] motion is granted. It's a red herring asfar as the Court is concerned. It has extremely limited and probative value to this case."

The admissibility of evidence is within the sound discretion of the trial court and its rulingwill not be reversed unless there was an abuse of that discretion. People v. Williams, 181 Ill. 2d297, 692 N.E.2d 1109 (1998). Evidence is relevant when it tends to make the existence of anyfact that is of consequence to the determination of the action more or less probable than it wouldbe without that evidence. People v. Gonzalez, 142 Ill. 2d 481, 568 N.E.2d 864 (1991).

Defendant seems to suggest that the mere presence of these other individuals made itfactually impossible for him to molest his adolescent daughter. Obviously, the acts of which hewas accused could have occurred whether he and his daughter were the only people in the houseor whether 30 additional people were in the house. Given our standard of review and the fact thatreasonable people can differ as to the probative nature of this evidence, we do not believe it wasreversible error to exclude this evidence.
 

Accusations of Sexual Misconduct by J.I.

Defendant claims that the trial court committed reversible error when it precludedevidence that A.P. made accusations of sexual misconduct by J.I.

Specifically, defendant attempted to introduce evidence that J.I. had kissed A.P. and askedher for oral sex in an attempt to show an alternative source of A.P.'s sexual knowledge and togive A.P. a motive to fabricate her story of abuse.

We hold that the trial court did not err in excluding this evidence. The abuse in this caseinvolves sexual penetration. It was well within the trial court's discretion to determine that theproffered evidence would not give A.P. the type of advanced sexual knowledge elicited inreporting the abuse in this case. Whether J.I. had previously kissed A.P. and asked her for oralsex is entirely unrelated to the question of whether the defendant sexually assaulted A.P. None ofA.P.'s allegations against the defendant involve kissing or oral sex. Furthermore, there is noevidence that A.P. and J.I. ever engaged in oral sex.

The defendant's theory that this evidence was necessary to show A.P.'s motive for lyingalso fails. The defendant presented testimony that he and his wife forbade A.P. from seeing J.I.,that this made her very angry and she threatened to get back at them for preventing her fromseeing this boy. Therefore, the motive evidence was before the jury.
 

A.P.'s Psychological Treatment

Defendant claims it was error not to allow his wife to testify that she sought mental healthtreatment for A.P. from Diane Funk due to A.P.'s "lying and her behavior of masturbating." Thetrial court found that the evidence was not relevant or probative and it was barred by section 10of Illinois's Mental Health and Developmental Disability Confidentiality Act (the Act) (740 ILCS110/10 (West 2002)). Again, we review evidentiary matters such as this under an abuse ofdiscretion standard. While reasonable people could find that the statement from defendant's wiferegarding her purpose for taking A.P. to psychological counseling is a statement of fact, it isundoubtedly pregnant with improper lay opinion testimony. Had the defendant's wife beenallowed to testify that she sought psychological counseling for A.P.'s lying, she would beimplicitly telling the jury that it was her opinion A.P. had a psychological problem. The trial courtclearly had the discretion to bar this evidence. Moreover, since the trial court allowed Diane Funk(the therapist to whom defendant's wife took A.P. for treatment) to testify, any error created bykeeping out the wife's testimony was harmless. We need not reach the issue of whether thetestimony was properly excluded under the Act.

Defendant also attempted to put forth testimony from physician's assistant Robert Girardthat A.P. told him she had sought treatment for a lying problem. Defendant claims thiscommunication was not made in the context of mental health treatment and therefore was notcovered under the Act. Defendant claims that excluding this evidence improperly infringed uponhis right to attack A.P.'s credibility. We disagree.

Physicians (and those therefore employed by physicians) are included in the definition oftherapist under section 2 of the Act. 740 ILCS 110/2 (West 2002). Clearly, statements to aphysician or physician's employee are suppressible under the Act, even though such a person isnot a psychiatrist or psychologist. However, even if we were to find it was error to suppress thisstatement under the Act, we would find that it was harmless error, as the defendant put onmultiple witnesses to testify that A.P. had a reputation for being untruthful. The defense put ontherapist Diane Funk and Dr. Sean Bailey, who both testified that A.P. denied on severaloccasions ever having been touched in her genital area. Also, the defendant, his wife, his brotherand A.P.'s school psychologist testified regarding A.P.'s credibility. Contrary to his assertion,defendant was not denied the right to attack A.P.'s credibility. Girard's testimony was cumulative.
 

Prior False Allegations Against Defendant Regarding Bite

Defendant attempted to introduce evidence that A.P. had previously falsely accused him ofbiting her. Defendant's purpose is obvious: A.P. lied then and she is lying now. There is nothingin the record to suggest the false biting accusation was sexual in nature. This attempt atimpeachment was based on a specific bad act: a previous specific lie that is not closely related tothe crime with which defendant is charged. Our supreme court recently affirmed that specific-actimpeachment is prohibited in Illinois. People v. Santos, 211 Ill. 2d 395, 813 N.E.2d 159 (2004).

While the Santos decision dealt with the admissibility of evidence under the rape shieldstatute, which is not at issue on this point of law in this case, the court's comments are stillrelevant here.

"What defendant wished to do by introducing this evidence was to impeach the victim's credibility with a specific act of untruthfulness. He wished to show the jury that T.K. had lied on one occasion-when she told medical personnel she had not had sexual intercourse with anyone else in the previous 72 hours-in order to support his argument that when she testified in court she was lying  about what had occurred between her and the defendant. Far from being constitutionally required, specific-act impeachment is prohibited in Illinois." (Emphasis in original.) Santos, 211 Ill. 2d at 403-04.

We hold it was not error to exclude evidence of defendant's false accusation regarding thebiting incident.
 

Kari Koster and Judy O'Brien Testimony

Defendant contends that it was error to allow Kari Koster and Judy O'Brien to testifyregarding whether they found A.P.'s statements to be credible. We agree. However, we do notbelieve that this error warrants reversal of defendant's conviction. There was no objection to thistestimony at trial and it was not plain error.

Objections not raised in the trial court and in posttrial motions are waived on review. People v. Enoch, 122 Ill. 2d 176, 522 N.E.2d 1124 (1988); People v. Herrett, 137 Ill. 2d 195,561 N.E.2d 1 (1990). Our supreme court, in Enoch, stated the main purpose for the plain errorexception to the waiver doctrine is to correct any serious injustices that have been done to thedefendant. Thus, where evidence is closely balanced, a reviewing court may consider errors thathave not properly been preserved for review. Enoch, 122 Ill. 2d at 199. We do not believe thatthe admission of the opinion testimony constituted a serious injustice to the defendant nor do webelieve that the evidence is closely balanced.

Illinois adheres to the rule that credibility may only be established through reputationevidence. Again, we agree that the admission of the opinion testimony was error. However, thiserror was technical and insignificant and did not change the outcome of the trial. Illinois remainsone of the very few jurisdictions that prohibits opinion testimony on the issue of credibility. TheIllinois viewpoint has been harshly criticized by commentators, and it is suggested that opinionevidence of character based on personal knowledge and belief is superior to reputation evidence,which is the "gathering of others' opinions, rumors and gossip introduced as hearsay in disguise." M. Kadish & J. Elmore, Illinois' "Grotesquely Outdated" Ban of Opinion Character Evidence inCriminal Cases, 86 Ill. B.J. 268, 271 (1998). Most jurisdictions follow Rule 405 of the FederalRules of Evidence, which allows opinion testimony on the issue of character. M. Kadish & J.Elmore, Illinois' "Grotesquely Outdated" Ban of Opinion Character Evidence in Criminal Cases,86 Ill. B.J. 268 (1998). Clearly, any error was nothing more than a technical violation of theIllinois Rules of Evidence and did not affect any fundamental right of the defendant. As thisevidence can be properly admitted down the street at the federal courthouse or across the borderin a neighboring state, the defendant's argument, claiming it was a "serious injustice" to admit it inthis case, fails.

It is also worth mentioning that defendant, himself, elicited improper opinion testimonyregarding A.P.'s truthfulness. Defendant called Gene Randolph, the Putnam County schoolpsychologist. Randolph testified that A.P. had a reputation for lying. He then went on to testifythat he "would not believe her even if she testifie[d] under oath." Patrick Lewis also testified thathe was familiar with A.P.'s reputation for being untruthful. He, too, testified that he would notbelieve A.P. if she testified under oath. Lewis's testimony that he would not believe A.P. if shetestified under oath was not based on her reputation. During closing argument, defense counselpointed out to the jury that several witnesses said they would not believe A.P. if she testifiedunder oath and that one of these witnesses was her school psychologist.

Just like most of the other issues with which we deal in this appeal, no objections weremade to this testimony or argument. However, this was improper opinion testimony. We areaware that there are cases which hold that once a witness testifies to someone's reputation fortruthfulness, that witness can then be asked whether, based on that reputation, he or she wouldbelieve the person in question if that person testified under oath. People v. Lehner, 326 Ill. 216,157 N.E.2d 211 (1927); Laclede Bank v. Keeler, 109 Ill. 385 (1884); People v. Bramlett, 131 Ill.App. 3d 616, 476 N.E.2d 44 (1985). While these cases stand for the aforementioned proposition,they do not discuss the logical inconsistency between the ban on opinion character evidence inIllinois on the one hand and allowing someone who says he is familiar with someone's reputationto testify whether he would believe that person, if the person testified under oath, on the other. Itmakes absolutely no sense to allow a witness to form an opinion of credibility based uponreputation and to testify to that opinion, while chanting the mantra that Illinois does not permitopinion testimony on credibility. This is absolutely no different from asking a witness whether heor she thinks a person is credible. There is no difference between saying, "I would not believe thisperson if she testified under oath," and "In my opinion, this person is a liar."

Moreover, we reject the notion that this error affected the outcome of the trial. Thetestimony was that Kari Koster and Judy O'Brien found A.P.'s complaints of abuse to be credible. Both of those witnesses were testifying on behalf of the State. Their appearance at trial as Statewitnesses likely already led the jury to conclude that they found A.P.'s complaints to be credible.

Furthermore, the evidence in this case was not closely balanced. There was more thanenough evidence to convict the defendant. The medical testimony at trial stated that A.P.'sprimary outbreak of genital herpes occurred in July of 2000, which was after the abuse began andafter the defendant was confirmed to be infected by the same virus. At age 10, she described howdefendant molested her, ejaculated on her, how he would go to the bathroom to clean himself upand how he would give her a damp cloth and tell her to clean herself up after each such event. She was able to describe the ejaculate. Defendant's argument that this type of sexual knowledgecould have been obtained from kissing a 15-year-old boy and his request for oral sex isunconvincing.

As evidence of the defendant's guilt was overwhelming and, having found that nofundamental error occurred, we need not consider alleged trial errors that were waived by failureof the defendant to properly raise the issues below via objection and posttrial motion. It was notplain error for the trial court to allow Koster's and O'Brien's opinion testimony.
 

A.P.'s Prior Consistent Statements

The defendant claims that the trial court abused its discretion in admitting prior consistentstatements made by A.P. which served only to bolster her as a witness before the jury. Thesestatements include the following: Koster's testimony and the videotaped interview of A.P. byKoster; O'Brien's testimony; Nurse Auer's testimony regarding A.P.'s description of the vaginalpenetration; and Deputy Ellena's testimony regarding his interview with A.P. Given that A.P.testified regarding the defendant's sexual abuse, defendant claims the additional statementsmentioned above were improper consistent statements. Defendant acknowledges that his counseldid not object to the admission of these statements and, as such, he failed to preserve the issue forreview. However, defendant asks this court to review this issue under the plain error doctrine.

We have already stated that the admission of Koster's and O'Brien's testimony was notplain error.

While Deputy Ellena testified as to what A.P. told him, the purpose of this testimony wasclearly to explain the steps in his investigation and why he procured a search warrant to thedefendant's residence and confiscated such items as Vaseline. Nurse Auer's statements were madeduring her testimony regarding A.P.'s physical examination in order to explain Nurse Auer'sexamination findings. We hold neither Deputy Ellena's nor Nurse Auer's statements wereimproper "consistent statement" testimony. Again, even if the testimony was improperlyadmitted, it was not plain error.
 

Videotaped Interview of A.P.

Defendant contends that the trial court abused it discretion in finding that the videotapedinterview of A.P. was sufficiently reliable to allow its admittance under section 115--10 of theCode of Criminal Procedure of 1963 (the Code) (725 ILCS 5/115--10 (West 2002)). Wedisagree. Section 115--10 of the Code creates an exception to the hearsay rule that allowstestimony such as the videotape of A.P.'s statement to be admitted if the court conducts a hearingoutside the presence of the jury and finds the statement provided sufficient safeguards of reliabilityand if A.P. then testifies at the proceeding. The record overwhelmingly indicates that thetestimony of Koster, the interviewer on the tape given immediately prior to the section 115--10hearing, contained enough specific information regarding the time, content and circumstance ofthe videotaped statement to support the trial court's finding of reliability. Koster gave detailedtestimony regarding the content of the interview, interviewing techniques, timing of the interviewand interview process. The trial court properly conducted a section 115--10 hearing outside thepresence of the jury. Accordingly, we do not believe it was an abuse of discretion to admit thevideotaped interview.
 

Ineffective Assistance of Counsel

Defendant maintains that he was denied effective assistance of counsel during theproceedings below and therefore should be awarded a new trial. Defendant claims trial counselrepeatedly failed to object to improper evidence elicited by the prosecution. Furthermore,defendant claims that counsel failed to disclose witnesses who were living in the same house asthe defendant and victim which resulted in the court refusing to consider those witnesses'testimony. Finally, defendant claims that trial counsel failed to adequately preserve the recorddenying him the opportunity of meaningful appellate review.

To succeed on such a claim, the defendant must show that counsel's performance wasdeficient and that the deficient performance prejudiced the defendant. Strickland v. Washington,466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). Our supreme court adopted theStrickland standard in People v. Albanese, 104 Ill. 2d 504, 473 N.E.2d 1246 (1984). InAlbanese, our supreme court noted that there is "no need to review the individual claims ofinadequate representation to determine whether counsel acted within the range of reasonableprofessional assistance" when a "review of the record demonstrates that even assuming,arguendo, that all of the alleged errors constitute substandard representation," the result in thecase would not have been altered. Albanese, 104 Ill. 2d at 527.

We hold the defendant cannot meet his burden under the second prong of the Stricklandtest. Even assuming, arguendo, that all of the alleged errors complained of by the defendantconstituted substandard representation, the result of this matter would not have been altered asthe evidence contained within the record is so overwhelmingly against the defendant.
 

Reasonable Doubt

Defendant claims that the evidence failed to establish his guilt of the offense beyond areasonable doubt. We review such a claim by determining whether any rational trier of fact couldhave found the essential elements of the crime beyond a reasonable doubt while considering theevidence in a light most favorable to the prosecution. People v. Ward, 154 Ill. 2d 272, 609N.E.2d 252 (1992).

In light of our finding above that the evidence was overwhelming, we need not go furtherhere.
 

Sentencing

Defendant contends the trial court abused its discretion in sentencing him by failing toadequately consider his complete lack of criminal history and ignoring the sentencing objective ofrestoring an offender to useful citizen. When reviewing such a claim, we must decide whether infact the trial court exercised its discretion and if discretion was exercised, whether the discretionwas abused. People v. Cox, 82 Ill. 2d 268, 412 N.E.2d 541 (1980). A sentence that is within thestatutory limits will not be disturbed unless it represents an abuse of discretion. People v.Coleman, 166 Ill. 2d 247, 652 N.E.2d 322 (1995). It is presumed the judge considered anymitigating evidence while fashioning a sentence. People v. Anderson, 225 Ill. App. 3d 636, 587N.E.2d 1050 (1992). The two felony charges of which the defendant was convicted, predatorycriminal sexual assault of a child and aggravated criminal sexual assault, are both Class X felonies,each of which carries a mandatory minimum sentence of 6 years' imprisonment and a maximumnonextended sentence of up to 30 years' imprisonment. 720 ILCS 5/12--14.1(b); 12--14(d) (West2000); 730 ILCS 5/5--8--1(a)(3) (West 2000). Defendant was also convicted of aggravatedcriminal sexual abuse, the sentence for which ranges from three to seven years imprisonment. 720ILCS 5/12--16(g) (West 2000); 730 ILCS 5/5--8--1(a)(5) (West 2000).

During sentencing, the trial court specifically found in mitigation "that the defendant hasno history of prior delinquency or criminal activity and has led a law abiding life for a substantialperiod of time before the commission of the present crime," and that the defendant's medicalcondition will be aggravated by imprisonment. Moreover, the trial court noted during sentencingthat it had considered the presentence report, the testimony in evidence introduced at trial,evidence both in aggravation and mitigation that had been presented to the court, the impact onthe State of Illinois from a financial point of view by the defendant's commitment and A.P.'sstatement in the case. A review of the presentence report indicates that it discusses bothrehabilitative resources and available resources regarding rehabilitation.

The trial court sentenced the defendant to consecutive 15-year sentences for the chargesof predatory criminal sexual assault of a child and aggravated criminal sexual assault. The trialcourt then sentenced the defendant to a six-year concurrent sentence for the charge of aggravatedcriminal sexual abuse. These sentences are well within the statutorily prescribed rangesmentioned above. We hold the trial court did not abuse its discretion in sentencing the defendant.
 

Consecutive Sentences and Apprendi

Finally, the defendant contends that the imposition of consecutive sentences in this matterviolates the United States Supreme Court's holding in Apprendi v. New Jersey, 530 U.S. 466, 147L. Ed 2d 435, 120 S. Ct. 2348 (2000). Our supreme court held in People v. Wagener, 196 Ill. 2d269, 286, 752 N.E.2d 430, 441 (2001), "Apprendi concerns are not implicated by consecutivesentencing." Accordingly, we hold the imposition of consecutive sentences on defendant does notviolate Apprendi.
 

CONCLUSION

For the foregoing reasons, the circuit court of Putnam County is affirmed.

Affirmed.

O'Brien, J., concurs.

McDade, J., dissents.

JUSTICE McDADE, dissenting:

Although the majority finds that a number of evidentiary rulings at the defendant's trialwere not sufficient error to warrant a reversal or were not error at all, I find it impossible to reachthe same conclusion. Therefore, I must respectfully dissent.

The majority argues that a number of the evidentiary issues are waived because they werenot brought in post-trial motion. In general, arguments not raised in a post-trial motion arewaived on appellate review. People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130(1988). Nevertheless, the defendant urges the court to review the issues for plain error. Toassert plain error, the defendant must show that the evidence was closely balanced or that theerror was so fundamental that the accused was denied a fair trial. People v. Herrett, 137 Ill. 2d195, 210, 561 N.E.2d 1, 8 (1990).

With respect to each of the evidentiary issues, plain error review is appropriate. Each ofthe alleged evidentiary errors relates to the defendant's ability to impeach A.P.'s credibility, or tothe State's attempts to boost her credibility. The State's entire case hinged on the jury believingA.P.'s testimony. Any evidentiary ruling which may have threatened the defendant's right to testA.P.'s credibility could have been seriously prejudicial to the defendant. There was no physicalevidence to link the defendant to any crime. The evidence was closely balanced and impeachmenttestimony could have changed the outcome of the trial. Therefore, I believe the rulings should bereviewed despite the fact that they were not raised in the post-trial motion.

The first error complained of relates to testimony from individuals staying at thedefendant's house at the time of the alleged abuse. The defendant sought to have theseindividuals testify that they did not notice any signs of abuse and that it would have been difficultfor the abuse to occur while they were at the house. It is clear that the evidence proposed by thedefendant was relevant to the case. Since the State's case was based entirely on the accusationsof the victim, testimony which would show that the defendant did not have a ready or easyopportunity to commit specific alleged acts of abuse would possibly impeach A.P.'s credibilityand lead to an acquittal. The defendant at least should have been allowed to present the evidenceto the jury, so that it could have assessed it for probative value, assigned it an appropriate weight,and evaluated A.P.'s testimony in light of the information.

The defendant also argues it was error for the trial court to prohibit the introduction ofevidence that A.P. had made a prior allegation of sexual misconduct against another minor, J.I.The trial court found that the evidence was inadmissible under the rape shield statute. Thestatute states that "the prior sexual activity or reputation of the alleged victim . . . is inadmissibleexcept . . . when constitutionally required to be admitted." Code of Criminal Procedure of 1963(725 ILCS 5/115--7(a) (West 2003)). It does not appear to me that the evidence sought bydefendant even implicates that statute since what is at issue is J.I.'s alleged sexual advances andnot any claimed sexual activity or prior promiscuity on the part of A.P.

Assuming, however, that the statute does apply, the bar is not absolute, as the text of thestatute indicates, and a defendant should be allowed to present evidence generally barred underthe statute if it is necessary to give effect to the defendant's sixth amendment right to confront hisaccuser. People v. Sandoval, 135 Ill. 2d 159, 191, 552 N.E.2d 726, 740 (1990). However, thisright to confront is limited in scope. The Sandoval court identified three circumstances where anaccused may use evidence otherwise barred by statute: 1) when the evidence will show bias,prejudice or motive, 2) when evidence is of other crimes that can be used to impeach a defendantshould he choose to testify, and 3) when prior inconsistent statements are used to impeach. Sandoval, 135 Ill. 2d at 191, 552 N.E.2d at 740. The court found that the sixth amendment doesnot require evidence to be used solely to attack the credibility of a witness. Sandoval, 135 Ill. 2dat 191, 552 N.E.2d at 740.

The defendant's sixth amendment right is clearly implicated. He sought to show that A.P.had a source -- not himself -- for her advanced knowledge of sexual terminology, and that she hada motive to lie about the defendant. The defendant attempted to present testimony that J.I., a 15-year old, had kissed A.P., and asked her to perform oral sex on him. He also tried to admitevidence that she wanted to punish defendant for preventing her from seeing the boy. Thetestimony is relevant to show an alternative source for the victim's knowledge and to showmotive to accuse him falsely. Despite the majority's assertion that they do not find the evidence particularly convincing, it should have been admitted so that the jury could have made thedetermination whether to give credence to the evidence and to the defendant's theory.

Next, the defendant argues that the trial court erred in preventing him from presentingevidence that A.P. was in therapy for a lying problem. The court found the testimony was barredunder the Mental Health and Disabilities Confidentiality Act. The Act provides that " in any . . .criminal . . . proceeding . . ., a recipient, and a therapist on behalf and in the interest of a recipient,has the privilege to refuse to disclose and to prevent the disclosure of the recipient's record orcommunications. (740 ILCS 110/10(a)).

The defendant must be provided the opportunity to confront a witness with mental healthrecords if the evidence would be useful in helping the jury to evaluate the truthfulness of thewitness's testimony. People v. Bean, 137 Ill. 2d 65, 102, 560 N.E.2d 258, 275 (1990). InBean, the court found that generally barred medical records would be admissible if they indicateda bias against the defendant or revealed the witness to be lacking in her ability to perceive, relate,or remember the occurrences about which she testified. Bean, 137 Ill. 2d at 102, 560 N.E.2d at275. Arguably, whether A.P. sought treatment for a lying problem does not implicate thesereasons for admitting such records.

However, the information defendant sought to have admitted is not covered by the statute. The statute prevents the disclosure of records or communications, but there is no indication thatthe defendant sought to admit any medical records. Rather, the evidence was to be testimonyfrom the defendant's wife that she had sought the treatment for A.P.'s lying problem, andtestimony from Girard stating that A.P. had told him that she had sought treatment for lying. Themother's testimony does not concern either a "record" or "communication" but relates only to thefact that the therapy was sought. It also does not, as the majority asserts, amount to a laydiagnosis of a mental problem. It is nothing more than the statement of the fact that the victim, atthe invitation of her frustrated mother, underwent treatment. Girard's testimony, whileconcerning a communication by A.P., does not concern a communication made in the context ofmental health treatment. The court improperly denied the defendant the opportunity to presentthe evidence.

The evidentiary rulings made by the trial court and complained of by the defendantprevented the defendant from meaningfully confronting the primary witness against him and fromadequately presenting a defense. The case hung on the credibility of the alleged victim, and thedefendant was unable, due to adverse evidentiary rulings, to contest that credibility. The rulingsirreparably prejudiced the defendant and entitle him to a remand for a new trial. For thesereasons, I respectfully dissent from the majority's opinion.