PEOPLE v. FALCON (1997)

Defendant, Juan Falcon, was charged by indictment with three counts of aggravated criminal sexual assault and three counts of aggravated criminal sexual abuse.   Following a jury trial he was found guilty of all counts and the abuse convictions were merged by the trial court with the assault convictions.   Subsequently, defendant was sentenced to three terms of 25 years imprisonment in the Illinois Department of Corrections.   The 25-year terms were ordered to run consecutively pursuant to the mandatory sentencing provisions of section 5-8-4(a) of the Unified Code of Corrections.  730 ILCS 5/5-8-4(a)(West 1996) (hereinafter, we refer to the Unified Code of Corrections as “the Code”).   Defendant now appeals both his conviction and sentence.

On appeal, defendant raises 5 issues for our review:  (1) whether the trial court improperly allowed the admission of so-called “other crimes” evidence;  (2) whether the evidence produced at trial was sufficient to support his convictions;  (3) whether his trial counsel was so ineffective as to deprive him of his fundamental right to due process;  (4) whether mandatory consecutive sentences pursuant to the provisions of section 5-8-4(a) of the Code were improper;  and (5) whether his combined sentence of 75 years imprisonment is excessive.   For the following reasons, we affirm defendant's convictions, but remand the case for resentencing.   Consistent with Illinois Supreme Court Rule 23, we publish our judgment in the form of an opinion only with regard to defendant's sentencing issues.

[Editor's Note:  Text Omitted pursuant to Supreme Court Rule 23.]

Viewing the evidence in the light most favorable to the State, the record establishes that defendant was a social studies teacher of 7th and 8th graders at the Brian Piccolo School in Chicago.   In the fall of 1993 and spring of 1994, the State's complaining witness, J.M., was 13 years old and was a sixth grader at the Piccolo School.   Defendant was J.M.'s homeroom teacher.

Defendant took an active interest in the students at the Piccolo School and had taken J.M. and other students to the Lake Shore Athletic Club, as well as to his home on several occasions.   In September of 1993, defendant gave J.M. a ride when coming from the Popular Bank of Puerto Rico, where defendant worked on the weekends.   During this time, defendant told J.M. that J.M. had balls inside him and that, to remove the balls, sperm would have to go through J.M.'s body to disintegrate them.   Defendant also told J.M. that he was given the power by God to tell when a person was lying and that he would have to place his penis on J.M.'s anus and stroke back and forth for the sperm to go through.   Both defendant and J.M. went back to defendant's house where defendant placed his finger inside J.M.'s anus to check and see if the balls were there.   Defendant then told J.M. that if he did not get the balls out, J.M. would turn gay at the age of 15.   Defendant then drew a picture explaining where the balls were located and describing how the sperm would go through and disintegrate them.   Defendant then had anal intercourse with J.M., after which defendant told J.M. not to tell anyone because it was a secret.

Defendant told J.M. that he had to keep performing these sexual acts during the next few weeks in order to complete the treatment.   After the third act of anal intercourse, J.M. asked defendant if the balls had gone away, but defendant said they had not.   Defendant told J.M. that in order to get rid of the balls, it was now necessary for the sperm to go through the top.   Defendant told him that it was necessary for J.M. to put his mouth on defendant's penis and to swallow the sperm.   J.M. did as defendant requested.

Within the next month, defendant twice checked J.M. for the balls and again made J.M. have anal intercourse.   J.M. stated that in 1994, defendant took him to his weekend job at the bank because there were too many people at his own house and this way no one would know what they were doing.   Defendant then performed anal intercourse with J.M. while at the bank.   J.M. stated that he never told anyone about this because defendant told him that he would “put him down” if J.M. ever said anything.

On cross-examination, J.M. stated that there were four acts of anal intercourse which occurred once per week for four weeks.   J.M. also stated that the first time he told the police about defendant's conduct was in August of 1994.

Although defendant had not been charged with crimes against other children, several of J.M.'s schoolmates testified that they too had been sexually molested by the defendant.   O.D. testified that in the school year 1992-93, he was in 7th grade at the Piccolo School.   Defendant was his homeroom teacher and defendant would often take O.D. and other boys to the Lake Shore Athletic Club. O.D. also stated that he had been taken to the bank, but never when it was open for business.   The other boys that went to the bank were J.M. and W.R.

While at the bank, O.D. stated that he and defendant went into a room and defendant told him that he needed to check O.D. by putting his finger in his anus, and then defendant pulled down his own pants and put his penis in O.D.'s mouth.   Defendant told O.D. to do this to prevent O.D. from catching the disease of feeling like a woman.   Afterwards, defendant made O.D. eat candy from the candy machine so that he would not smell like sperm.   O.D. stated that he did not tell anyone about this because defendant told him to keep it a secret.

One week later, O.D. was at defendant's house and defendant called O.D. to his room to “check” him by putting his finger in O.D.'s anus.   Defendant once again put his penis in O.D.'s mouth.   The next week, defendant called O.D. to his room and they undressed.   Defendant then put baby oil on his own penis, and had anal intercourse with O.D.

W.R. testified that, in the spring of 1993, he attended the Piccolo School and defendant was both his homeroom and social studies teacher.   He stated that he would go to defendant's house a lot on the weekends and also went to the Lake Shore Athletic Club with the defendant.

During the Thanksgiving holiday in 1993, W.R. stayed with defendant because his mother was out of town.   At this time, defendant told W.R. that they would sleep together in the same room even though W.R. did not want to.   On the second night, defendant sexually abused him by having anal intercourse with him.   Defendant told W.R. that he needed to commit these acts because W.R. had something in his stomach which would cause him to be a homosexual.   The only way to get rid of it was for defendant to put his penis in W.R.'s anus.

Dr. Michelle Lorand testified that she was a pediatrician at Cook County Hospital and was also the Director of the Division of the Child Protective Services.   On September 1, 1994, Dr. Lorand gave J.M. a rectal examination.   Dr. Lorand found scarring in J.M.'s rectal area which she characterized as evidence of anal penetration.   She said that this type of scaring was not consistent with that of penetration by a finger, but an object much larger, such as an adult penis.   Additionally, she stated that, based upon her examination of J.M., she was able to determine to a reasonable degree of medical certainty that the trauma caused to J.M.'s rectum was done by sexual abuse or assault.

Ramoita Soto, a Spanish teacher, testified for the defense.   Soto testified generally about knowing both defendant and J.M., whose siblings were in Soto's classes.   When asked if J.M. had ever told her that he knew the other boys who were accusing the defendant, she said J.M. denied knowing them.   J.M. also told her that his new teacher was not as good a teacher as defendant.

Defendant testified that since 1992, J.M. was his student in his social studies class and J.M. also visited his home very often because he was a friend of defendant's son.   He also stated that other students would come by and visit at the same time as J.M.   Defendant denied ever sexually abusing or assaulting J.M., O.D. or W.R.   Defendant admitted that he took the boys to the Lake Shore Athletic Club, the bank and that they had visited his home to play video games with his children.   He also admitted that J.M. and W.R. would often stay over night at his house.

Defendant denied ever talking with J.M. about sex, but admitted he had taken the boys to the Popular Bank of Puerto Rico on Saturdays.   He denied ever asking W.R. to sleep in his bedroom with him, and also denied ever speaking with W.R. about sex.

Following their deliberations, the jury rendered its verdict of guilty.   In his post-trial motion challenging the verdict, defendant argued that the trial court committed error by allowing the introduction of other crimes evidence.   He also challenged the trial court's in limine ruling which prohibited another student from the Piccolo School, J.R., from testifying that he was not molested by the defendant so as to establish defendant's good character.   Finally, defendant argued that the three charges of aggravated criminal sexual abuse should be merged with the three charges of aggravated criminal sexual assault.   The court denied the motion with the exception of granting the motion to merge the charges.

We first address defendant's claim that the trial court committed reversible error by allowing the State to introduce evidence that defendant committed uncharged criminal acts, specifically, that defendant had sexually assaulted O.D. and W.R.   Generally, evidence of other crimes is inadmissible where that evidence is relevant solely to establish a defendant's propensity to commit crime.  People v. Robinson, 167 Ill.2d 53, 62, 212 Ill.Dec. 256, 656 N.E.2d 1090 (1995).   However, as the State suggests, evidence of other crimes is admissible where relevant for any other purpose.  Robinson, 167 Ill.2d at 62, 212 Ill.Dec. 256, 656 N.E.2d 1090.   For instance, evidence of other crimes may be relevant to prove intent, identity, motive, absence of mistake, the existence of a common plan or design, or modus operandi.  Robinson, 167 Ill.2d at 62-63, 212 Ill.Dec. 256, 656 N.E.2d 1090;  People v. Banks, 161 Ill.2d 119, 137, 204 Ill.Dec. 107, 641 N.E.2d 331 (1994).

In this case it was appropriate for the trial court to have allowed the testimony of O.D. and W.R. into evidence, although we disagree with the State that the evidence established a common plan.

The terms “modus operandi ” and “common plan,” while often used interchangeably, actually have two distinct meanings.   Common plan refers to a larger criminal scheme of which the crime charged is only a portion, while modus operandi literally means the “method of working,” and refers to a pattern of criminal behavior so distinctive that separate crimes are recognizable as the handiwork of the same wrongdoer.   See McCormick, Evidence, section 190 at 448-49 (2d Ed.1972).

In this case, testimony from J.M., O.D. and W.R. established that defendant had a distinctive modus operandi.   Defendant would approach young boys who were students at the Piccolo School and befriend them, allowing them to come during non-school hours to his home, the Lake Shore Athletic Club and the Popular Bank of Puerto Rico. When he was alone with each of them, he would discuss sex and convince them that they were afflicted with a serious disease which would ultimately affect their adult sexuality, a disease requiring treatment by him.   This treatment involved secretly engaging in repeated sexual activity with the defendant over a period of time.

Although we agree with the State that defendant's conduct constitutes modus operandi, we disagree with the State's contention that defendant's conduct manifests a common plan.   This is because the crimes allegedly committed by the defendant were not shown by the evidence to have been part of a larger criminal scheme.   Rather, the evidence establishes that defendant's crimes against J.M. represented separate criminal incidents which were independently motivated.   Cf. People v. Bole, 155 Ill.2d 188, 184 Ill.Dec. 423, 613 N.E.2d 740 (1993)(multiple acts of sexual assault against same victim in same manner over period of days were separate offenses and not committed as part of “single course of conduct”).   In any event, we find the testimony of O.D. and W.R. was properly admitted to show modus operandi.

Defendant next asserts that he was not proven guilty beyond a reasonable doubt.   Specifically, he claims that the testimony of the State's complaining witness, J.M., was inconsistent as to the specific number of sexual acts committed by the defendant and the timing of those acts.   He argues that these inconsistencies fatally discredit the State's case.

It is well-settled that a criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant's guilt.  People v. Campbell, 146 Ill.2d 363, 374, 166 Ill.Dec. 932, 586 N.E.2d 1261 (1992);  People v. Collins, 106 Ill.2d 237, 261, 87 Ill.Dec. 910, 478 N.E.2d 267 (1985).   The relevant inquiry for the reviewing court when faced with a challenge to the sufficiency of the evidence is whether, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”  People v. Young, 128 Ill.2d 1, 11, 131 Ill.Dec. 86, 538 N.E.2d 461 (1989).

We have considered the evidence carefully under the proper standard of review and find the evidence sufficient to establish that the defendant committed the acts alleged in the State's indictment.   We note that the testimony of J.M. was corroborated by the physical examination of Dr. Lorand.   In addition, the testimony presented by O.D. and W.R. established that defendant exhibited a distinctive pattern of molesting young boys, thus further corroborating J.M.'s testimony.   Despite inconsistencies in J.M.'s testimony relating to the specific details of when and how often he and defendant had engaged in sexual relations, we find the evidence neither improbable nor unsatisfactory.   As such, we find defendant's claims regarding the sufficiency of the evidence to be meritless.

We also reject defendant's ineffective assistance of counsel arguments.   Defendant specifically argues that his trial counsel:  (1) failed to call J.R., another student at the Piccolo School who recounted his initial statements that he had been molested by defendant, for the limited purpose of showing that J.M., O.D. and W.R. were influenced by “coercion or collusion”;  (2) ineffectively impeached the State's witnesses;  (3) failed to properly question defendant;  and (4) failed to make timely objections to questions posed by the prosecution.   Defendant's claim of ineffective assistance is not supported by the record.

A claim of ineffective assistance of counsel is generally measured against the two-part standard announced by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984).   To succeed on a claim of ineffective assistance under Strickland, a defendant must establish both that counsel's performance was deficient and that the deficiency proved to be prejudicial.  Strickland, 466 U.S. at 687.   Judicial scrutiny of counsel's performance is highly deferential under Strickland, and a court considering an ineffectiveness claim “must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.”  Strickland, 466 U.S. at 689.   To establish prejudice resulting from an asserted deficiency in counsel's performance, “[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.   A reasonable probability is a probability sufficient to undermine confidence in the outcome.”  Strickland, 466 U.S. at 694.

In a few exceptional instances it has been held proper to eliminate the requirement that defendant establish prejudice by his counsel's ineffective assistance.   See United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).   In Cronic the Supreme Court noted that when “counsel entirely fails to subject the prosecution's case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable.”  Cronic, 466 U.S. at 659, 104 S.Ct. at 2047.   See also Strickland, 466 U.S. at 692, 104 S.Ct. at 2067;  People v. Foster, 168 Ill.2d 465, 214 Ill.Dec. 244, 660 N.E.2d 951 (1995), citing People v. Hattery, 109 Ill.2d 449, 94 Ill.Dec. 514, 488 N.E.2d 513 (1985).

Here, defendant has not attempted to make a showing of prejudice with regard to the alleged ineffective assistance.   Instead, defendant insists that the record demonstrates a “complete denial of counsel” pursuant to which no showing of prejudice is necessary.   We simply disagree with this assessment of counsels' conduct at trial.

Although it is clear on review, as it is in almost all trials in which the defendant is convicted, that defense counsel could have been more effective, our view of the trial is that defense counsel provided adequate representation, particularly in light of the strong evidence presented by the State.   The decisions of counsel during trial are not judged in hind-sight, but rather, by whether counsel at the time of the trial acted reasonably.   See People v. McPhee, 256 Ill.App.3d 102, 106, 195 Ill.Dec. 59, 628 N.E.2d 523 (1993).   We find counsel generally did so, despite the fact that several of those decisions, such as calling Ms. Soto as a defense witness, ultimately failed to advance defendant's case.

Because defendant has failed to demonstrate how he suffered prejudice from counsels' specific acts of alleged ineffective assistance at trial, we decline to address defendant's individual claims under the Strickland standard.

We turn to defendant's claim that he was improperly sentenced to consecutive sentences.

[The preceding material is nonpublishable under Supreme Court Rule 23 and M.R. No. 10343.]

Although we agree with the State that defendant's conduct constitutes modus operandi, we disagree with the State's contention that defendant's conduct manifests a common plan.   This is because the crimes allegedly committed by the defendant were not shown by the evidence to have been part of a larger criminal scheme.   Rather, the evidence establishes that defendant's crimes against J.M. represented separate criminal incidents which were independently motivated.   Cf. People v. Bole, 155 Ill.2d 188, 184 Ill.Dec. 423, 613 N.E.2d 740 (1993)(multiple acts of sexual assault against same victim in same manner over period of days were separate offenses and not committed as part of “single course of conduct”).   In any event, we find the testimony of O.D. and W.R. was properly admitted to show modus operandi.

 Although defendant has raised the issue of sentencing on appeal, we note that defendant has failed to file a post-trial motion challenging his sentence in the trial court.   The State argues that this omission constitutes a waiver of any challenge defendant may now wish to bring concerning his sentencing.   For support, the State relies upon the amended terms of section 5-8-1(c) of the Unified Code of Corrections (730 ILCS 5/5-8-1(c)(West 1996)) which provides that a defendant “shall” file a post-sentencing motion if he wishes to preserve sentencing issues for further appeal.   According to the State, our supreme court's decision in People v. Lewis, 158 Ill.2d 386, 199 Ill.Dec. 664, 634 N.E.2d 717 (1994), which held that the failure to file a post-sentencing motion does not result in waiver, is no longer controlling following the General Assembly's amendment to section 5-8-1(c).

We reject the State's waiver argument, as have the better-reasoned appellate decisions to consider the issue.   See e.g., People v. Williams, 285 Ill.App.3d 394, 220 Ill.Dec. 748, 673 N.E.2d 1169 (1996);  People v. Porter, 285 Ill.App.3d 50, 52, 221 Ill.Dec. 661, 676 N.E.2d 1 (1996);  People v. Cook, 279 Ill.App.3d 718, 726, 216 Ill.Dec. 239, 665 N.E.2d 299 (1995).   But see People v. Rogers, 286 Ill.App.3d 825, 222 Ill.Dec. 200, 677 N.E.2d 13 (1997);  People v. Reed, 282 Ill.App.3d 278, 280, 217 Ill.Dec. 866, 668 N.E.2d 51 (1996);  People v. McCleary, 278 Ill.App.3d 498, 501, 215 Ill.Dec. 272, 663 N.E.2d 22 (1996);  People v. Moncrief, 276 Ill.App.3d 533, 535, 213 Ill.Dec. 476, 659 N.E.2d 106 (1995).   Even were we to accept the State's waiver argument, however, we note that even those cases relied upon by the State have acknowledged that whether a defendant's sentence is properly imposed is generally a question which concerns the defendant's fundamental constitutional right to liberty.   As such, even if waiver were to apply, we would address defendant's sentencing arguments under our plain error doctrine.   See People v. Ritchey, 286 Ill.App.3d 848, 222 Ill.Dec. 439, 677 N.E.2d 973 (1997);  Reed, 282 Ill.App.3d at 281, 217 Ill.Dec. 866, 668 N.E.2d 51;   McCleary, 278 Ill.App.3d at 501-02, 215 Ill.Dec. 272, 663 N.E.2d 22;   Moncrief, 276 Ill.App.3d at 535, 213 Ill.Dec. 476, 659 N.E.2d 106.

 Defendant first argues that his consecutive sentences, which the trial court indicated were mandatory under the terms of section 5-8-4(a) of the Code, were not proper under that section.   This section provides for mandatory consecutive sentencing for each offense of aggravated criminal sexual assault when a defendant:  (1) commits the assault in connection with other criminal acts, (2) those other acts also resulted in convictions for which defendant is being sentenced, and (3) when all the acts are together part of a “single course of conduct during which there was no substantial change in the nature of the criminal objective.”   Consecutive sentences are not appropriate under the terms of the statute unless the defendant's convictions meet these requirements.   See generally People v. Williams, 263 Ill.App.3d 1098, 202 Ill.Dec. 561, 638 N.E.2d 207 (1994).

Defendant notes that the indictments under which he was charged did not indicate, either expressly or impliedly, that his criminal acts were committed as part of a “single course of conduct.”   Indeed, our examination of the indictments shows the State failed to allege defendant's crimes occurred at any specific point in time whatsoever.   Rather, the indictments merely state that defendant molested J.M. in three different ways over a period of several months.

J.M. testified that defendant sometimes inserted his finger into J.M.'s anus before engaging him in either oral or anal sex, but J.M.'s testimony did not indicate this was always the case.   J.M.'s testimony appears to indicate that, sometimes, defendant simply had oral sex with J.M.;   othertimes, defendant simply had anal sex.   During closing argument the prosecutor stated that the evidence established each of the allegations in the indictments by proving defendant molested J.M. in the following ways:  (1) penetration by defendant's finger into J.M.'s anus, (2) penetration by defendant's penis into J.M.'s mouth, and (3) penetration by defendant's penis into J.M.'s anus.

At oral argument before this court, the State recognized the lack of evidence indicating precisely when and how often defendant molested J.M. Moreover, although the evidence established that defendant committed more than eight acts of criminal sexual assault against J.M., the evidence was clear that no more than two of these acts occurred during any “single course of conduct.”   See People v. Bole, 155 Ill.2d 188, 194, 184 Ill.Dec. 423, 613 N.E.2d 740 (1993) (sexual assault offenses were not committed as part of single course of conduct when committed on different days with substantial interruptions of time between them).   The trial court's decision to sentence defendant to three consecutive terms was therefore conceded by the State to be error.   The State agreed with defendant's counsel that, if we reject the State's waiver argument, the case must be remanded for resentencing.

The question remains, however, as to whether, on remand, the trial court may find that two of the defendant's criminal acts were committed as part of a single course of conduct, so as to require two of defendant's sentences to be served consecutively pursuant to the mandatory consecutive sentencing provisions of section 5-8-4(a).

Defendant points out that it is impossible to tell from the record which of the eight or more assaults J.M. testified occurred constituted the basis for the jury's three convictions.   Although he concedes it is possible the jury convicted him for committing two acts of aggravated criminal sexual assault during one course of conduct and a third act during another, it is also equally possible that the jury convicted him for committing three separate and distinct offenses on different days, each of which constituted its own “single course of conduct.”   If defendant's convictions were for crimes that were independent acts, mandatory consecutive sentences are improper.

The State's position at oral argument before this court was unclear with regard to the possibility of mandatory sentencing on remand.   There was a suggestion that the State may argue on remand that mandatory consecutive sentences for two of defendant's three convictions is required under section 5-8-4(a) in light of the testimony that defendant committed two acts of penetration against J.M. during several of the occurrences.   Because the issue must be resolved for defendant to be properly sentenced on remand, we elect to address the question now rather than risk the prospect that defendant might receive a second improper sentence.

 Since our supreme court first addressed the issue of the meaning of “single course of conduct” in Bole, appellate courts have not developed a consistent or even coherent analysis of when courses of conduct are “related,” as opposed to “separate.”  People v. Strickland, 283 Ill.App.3d 319, 324-25, 218 Ill.Dec. 369, 668 N.E.2d 1201 (1996).   It is clear, however, that when a defendant commits multiple acts of sexual assault separated by a substantial passage of time between the assaults, the assaults are treated as being “separate,” and not part of a “single course of conduct” for purposes of section 5-8-4.  Bole, 155 Ill.2d at 194, 184 Ill.Dec. 423, 613 N.E.2d 740.

Thus, in People v. Pence, 267 Ill.App.3d 461, 204 Ill.Dec. 503, 641 N.E.2d 933 (1994), defendant was convicted of two counts of aggravated criminal sexual assault for which he was sentenced to two mandatory consecutive terms pursuant to the provisions of section 5-8-4(a).   The appellate court noted in reviewing defendant's sentencing that the jury had been presented with evidence that the defendant assaulted the victim on more than five occasions, but the indictments stated only that multiple assaults had occurred over a six month period of time.   The court vacated the defendant's sentences and remanded the case for resentencing, stating:  “although there was evidence from which the jury could have concluded that two of the offenses were part of a single course of conduct, the language of the charging document, the evidence at trial, and the general verdict of the jury do not permit the ‘single course of conduct’ conclusion required by Bole for mandatory consecutive sentencing.”   Pence, 267 Ill.App.3d at 467, 204 Ill.Dec. 503, 641 N.E.2d 933.

Here, as in Pence, the State never established how defendant's three convictions related to any given “single course of conduct.”   Thus, as defendant argues, it is impossible to determine whether the defendant was convicted by the jury of committing two acts of aggravated criminal sexual assault during a “single course of conduct,” or whether the jury's three convictions related to entirely separate occurrences.   Although it is possible that the jury convicted defendant of committing two offenses during a single course of conduct, the record is simply insufficient to establish that the jury did so.   In such a situation, consistent with Pence, we find defendant may not be sentenced to mandatory consecutive sentences under the terms of section 5-8-4(a).

 In addition to being consistent with this court's prior holding in Pence and the supreme court's decision in Bole, we note that our analysis comports with the general principal that any ambiguity in a criminal statute must be strictly construed in favor of the defendant.  People v. Chandler, 129 Ill.2d 233, 253-54, 135 Ill.Dec. 543, 543 N.E.2d 1290 (1989).  “ ‘If a statute creating or increasing a penalty or punishment be capable of two constructions, undoubtedly that which operates in favor of the accused is to be adopted.’ ”  People ex rel. Gibson v. Cannon, 65 Ill.2d 366, 371, 2 Ill.Dec. 737, 357 N.E.2d 1180 (1976), quoting People v. Lund, 382 Ill. 213, 215-16, 46 N.E.2d 929 (1943).   Interpreting section 5-8-4(a) in any other way on remand would have the effect of violating this hallmark of statutory construction.

Because the case must be remanded for resentencing, the question of whether defendant's sentence is excessive is premature and we decline to address it.

For the forgoing reasons, the judgment of the circuit court of Cook County is affirmed but defendant's sentences are vacated.   The case is remanded to the circuit court for resentencing.

Affirmed in part;  vacated in part and remanded.

J.M. testified he was born June 6, 1981.   In July 1996, he testified to events occurring in the fall of 1993 and spring of 1994.   Not surprisingly, he was unable to identify the specific dates on which those events took place, 34 months earlier when he was 12 years old.

My reading of the record is that J.M. testified defendant penetrated him on at least six days.   Although the assistant State's Attorney at oral argument stated that multiple sex acts occurred on no more than two occasions, J.M.'s testimony was that there were three of these events.   On the first date, defendant penetrated him both digitally and with his penis.   On another occasion, when J.M. performed oral sex on defendant for the first time, he again digitally penetrated the boy.   During a still later event, defendant placed his finger in J.M.'s anus and then penetrated the boy's anus with his penis.

Despite that testimony, my colleagues find the consecutive sentences imposed on defendant must be vacated because they believe it is impossible to determine whether the jury's convictions relate to the occasions when multiple acts occurred in a single course of conduct.   In support of their position, they rely on People v. Pence, 267 Ill.App.3d 461, 204 Ill.Dec. 503, 641 N.E.2d 933 (1994).   I disagree and join Justice Hartman in his dissent in Pence.   See Pence, 267 Ill.App.3d at 468, 204 Ill.Dec. at 508, 641 N.E.2d at 938 (Hartman, J., concurring in part and dissenting in part).

The jury was presented with three sets of verdict forms, describing different types of sexual acts.   If the jury had returned both guilty and not guilty verdicts, their meaning would have been unclear.   However, the jury's return of three guilty verdicts was not unclear, and can only be interpreted to mean the jury accepted the testimony of J.M. and rejected the theory of defense-an attack on J.M.'s credibility.

The majority here and in Pence apparently create two new requirements before mandatory consecutive sentences can be imposed for assaults committed over a period of time.   Must the State charge in the indictment the specific dates on which criminal acts were committed in a single course of conduct?   Must the trial court give special verdict forms requiring the jury to determine which acts occurred on which dates?   These requirements have no statutory basis, nor support in case law other than the majority's reading of Pence.

It is well recognized that the date of an offense is not an essential ingredient in child sex cases.  People v. Barlow, 188 Ill.App.3d 393, 402, 136 Ill.Dec. 172, 178, 544 N.E.2d 947, 953 (1989).   This court has long held that, in sex offense cases, flexibility must be given to the requirement that a certain date be specified in the charging document.  People v. Long, 55 Ill.App.3d 764, 772, 13 Ill.Dec. 288, 294, 370 N.E.2d 1315, 1321 (1977).   Furthermore, proof of the precise date alleged in an indictment is unnecessary unless the allegation of a particular time is an essential ingredient of the offense or a statute of limitations question is involved.  People v. Wheeler, 216 Ill.App.3d 609, 619-20, 159 Ill.Dec. 266, 275-76, 575 N.E.2d 1326, 1335-36 (1991).   Additionally, Illinois Pattern Jury Instruction No. 3.01 states:

“The [ (indictment) (information) (complaint) ] states that the offense charged was committed [(on)(on or about) ] _. If you find the offense charged was committed, the State is not required to prove that it was committed on the particular date charged.”   Illinois Pattern Jury Instructions, Criminal, No. 3.01 (3d ed.1992).

Also significant is that the statute does not impose the pleading and proof requirements created by the majority.   The plain language is that “[t]he court shall not impose consecutive sentences for offenses which were committed as part of a single course of conduct * * * unless * * * the defendant was convicted of a violation of Section 12-13 or 12-14 of the Criminal Code * * * in which event the court shall enter sentences to run consecutively.”  730 ILCS 5/5-8-4(a) (West 1992).   While the majority is concerned with the rule of statutory construction that an ambiguous statute must be interpreted in the defendant's favor, our supreme court in People v. Bole has held the mandatory consecutive sentencing statute is “clear and unambiguous.”   People v. Bole, 155 Ill.2d 188, 197, 184 Ill.Dec. 423, 427-28, 613 N.E.2d 740, 744-45 (1993).

The result of the majority's opinion here and in Pence is that a defendant who repeatedly assaults his victim in a single course of conduct and does so several times is punished less severely than one who commits a series of acts once.   This is an absurd result.

The jury's unmistakable verdict was that defendant committed multiple acts of assault on at least three occasions.   His convictions and consecutive sentences should be affirmed.

Justice ZWICK delivered the opinion of the court: