No. 2--02--0128

	_________________________________________________________________

	IN THE

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT

______________________________________________________________________________

THE PEOPLE OF THE STATE	)	Appeal from the Circuit Court

OF ILLINOIS,                      )	of Lee County.

	                           ) 

	Plaintiff-Appellee,	)

    	)	 

v.	)	No. 01--CF--127

             				  )

CAMILO E. GONZALEZ,             	  )	Honorable

                                )  Tomas M. Magdich,  

	Defendant-Appellant.	  	  )	Judge, Presiding.

_________________________________________________________________

	JUSTICE O'MALLEY delivered the opinion of the court: 

	A jury convicted defendant, Camilo Gonzalez, of one count of predatory

criminal sexual assault of a child (720 ILCS 5/12--14.1(a)(1) (West 2000)), one

count of aggravated criminal sexual abuse (720 ILCS 5/12--16(d) (West 2000)), and

two counts of child pornography (720 ILCS 5/11--20.1(a)(1)(ii) (West 2000)).  He

appeals, and we affirm and remand with directions.

	In May 2001, the State filed a four-count information against defendant. 

Count I (predatory criminal sexual assault of a child) alleged that, in the

summer of 2000, defendant intentionally placed his penis in the mouth of Jenna

R., who was under 13 years of age at the time of the act.  Count II (aggravated

criminal sexual abuse) alleged that, in the spring or summer of 2000, defendant

intentionally placed his penis in the mouth of Charlene L., who at the time was

between 13 and 17 years of age and at least five years younger than defendant. 

Count III alleged that, in the spring or summer of 2000, defendant photographed

Charlene L. with her mouth around the sex organs of another person.  Count IV

alleged that, in the spring or summer of 2000, defendant photographed Travis W.

with his genitals lewdly exposed.  The State alleged that Charlene L. and Travis

W. were both under 18 years of age at the time the photographs were taken.

	At trial, Bambi Glover testified that she was defendant's neighbor in May

and June 2000.  She testified that, on June 20, 2000, Patricia Penner, defendant's then-girlfriend, showed Glover two photographs depicting oral sex.  Recognizing Charlene in both photographs, Glover took them to the police. 

Although the photographs are not in the appellate record, the testimony at the

trial revealed their content.  The first photograph (State's exhibit 1) shows

Charlene performing oral sex on a male who is lying on a bed.  The second

photograph (State's exhibit 3) is a close-up shot of Charlene performing oral sex

on a male.  In neither photograph is the male's face visible.   

	Glover acknowledged on cross-examination that she told the police that she

recognized the man in State's exhibit 1 as "Rico," defendant's uncle, because of

the scar on the man's right hand.  However, when shown State's exhibit 1 again

on redirect examination, Glover testified that the man in the photograph was in

fact scarred on his left hand.  Based on this, Glover admitted that she could not

discern who was in State's exhibit 1 with Charlene.  	Glover further testified on cross-examination that she told police that the man in State's exhibit 3 with

Charlene was defendant.  She admitted, however, that she could not discern who

was in State's exhibit 3 with Charlene.  Glover also admitted that she once had

a relationship with defendant and that they have not been on good terms since it

ended.  Glover also admitted that she had a felony conviction of delivery of

cannabis.  

	Patricia Penner testified that she rented defendant's trailer for 21⁄2 months

from April 2000 to late June 2000.  Penner testified that defendant came to the

trailer every day after Penner moved in.  Defendant invited "many, many young

people" to the trailer.  Charlene, Jenna, and Travis visited the trailer about

once a week.  Charlene was often accompanied by Rico.  Penner testified that

sometimes five to seven teenagers were in the trailer at once.  Penner testified

that she did not invite the teenagers to the trailer and that they came to see

defendant.  At one point Penner told defendant that she did not want any more

teenagers in the trailer.  Penner admitted on cross-examination, however, that

Charlene, Jenna, and others visited her apartment before she moved into the

trailer.  Penner also testified that she and Jenna were close friends and that

Jenna confided in her.    

	Penner testified that, on May 27, 2000, defendant showed Penner a pack of

photographs that included State's exhibits 1 and 3.  As he showed her the

photographs, defendant laughed and said, "I just got my pictures back."  After

he showed Penner the photographs, defendant placed them in his bedroom.  On June

10, 2000, Penner's 13-year-old daughter found the pictures and brought them to

Penner, who later showed them to Glover.  Penner denied that she was in a

relationship with defendant while she lived in the trailer.  Penner admitted that

in May 2000 she spent two weeks in custody for violating the terms of probation

imposed for her felony retail theft conviction. 

	Lee County sheriff's detective David Glessner testified that in June 2000

he began to investigate the photographs Glover gave police.  With Penner's

permission, Glessner searched defendant's trailer, where he found in a kitchen

cupboard above the refrigerator negatives of the photographs of Charlene engaging

in oral sex that Glover took from Penner.  Other than these photographs, Glessner

found no pornographic material in the trailer.

	Glessner testified that he interviewed defendant in the fall of 2000. 

Glessner showed defendant the photographs, and defendant identified Charlene and

Travis.  Defendant admitted that he took the photographs to show Charlene's

mother because he did not approve of what Charlene and Travis were doing.  

Glessner did not make a written record of defendant's statement because defendant

could neither read nor write. 

	Glessner testified that he interviewed Charlene in November 2000 and showed

her the two photographs.  Charlene stated that she was performing oral sex on

Travis in one of the photographs (State's exhibit 1) and on defendant in the

other (State's exhibit 3).  Charlene told Glessner that she gave defendant oral

sex because he threatened to tell her mother about her behavior with Travis. 

When Glessner interviewed Travis later in November 2000, Travis stated that he

was in one of the photographs.      

	Glessner testified that he interviewed Jenna in January 2001.  Initially,

while Jenna's mother and cousin were present, Jenna  denied that she performed

oral sex on defendant.  However, once Jenna's mother and cousin left the room at

Glessner's request, Jenna told Glessner that she indeed had performed oral sex on defendant.  Jenna explained that, around 9 p.m. one evening, defendant was

driving her and Travis home on a gravel road when he pulled alongside a corn crib

that was near what Jenna described as  a "pile of junk."  Defendant threatened

to leave Jenna at the corn crib if she did not give him oral sex.  Glessner

testified that, though he was unable to arrange for Jenna to show him the exact

location, he followed the route that Jenna described in the interview and came

across a silo standing near a dilapidated building located about a half-mile from

defendant's trailer.  Glessner photographed the silo and showed the photograph

to Jenna.  Jenna identified the photographed area as the location where she gave

defendant oral sex.  Glessner acknowledged on cross-examination that there are

probably a hundred silos in Lee County like the one he photographed.   	

	Glessner also admitted on cross-examination that he never located Rico or

even learned Rico's last name.  Glessner testified that, though Glover had

identified Rico as one of the individuals in the photographs, he did not attempt

to interview Rico because defendant told Glessner during their interview in the

fall of 2000 that Travis was the only male in the photographs.  Glessner

acknowledged that, during a second interview in July 2001, defendant "alerted"

Glessner to the "possible involvement" of Rico, but Glessner did not believe

defendant and therefore did not pursue Rico.

	Charlene testified that she was born on July 14, 1984.  Charlene testified

that State's exhibits 1 and 3 were taken on May 10, 2000.  That night, defendant,

Travis, Trina (Travis's sister), Jenna, and another girl picked up Charlene at

her house after her mother left for work.  Charlene admitted that she did not

want her mother to know she was leaving the house.  Charlene testified that the

six of them drove to a field near defendant's trailer.  After they remained there

for a time, defendant drove all of them home except for Travis and Charlene, who

both accompanied defendant to his trailer, arriving about 1 a.m.  There, they

watched a pornographic videotape on defendant's videocassette recorder (VCR) in

the living room of the trailer while Penner was asleep in the bedroom.  Charlene

and Travis became excited during the movie and went to Penner's son Kyle's

bedroom where Charlene performed oral sex on Travis.  As this was occurring,

Charlene saw flashes of light, which she initially regarded as lightning because it was storming outside.  Charlene then saw defendant standing in the doorway of

the bedroom with a disposable camera and concluded that defendant had taken

pictures of her and Travis.  Charlene testified that defendant took three or four

photographs of her and Travis but did not take a close-up photograph of them. 

Charlene identified State's exhibit 1 as a photograph of her performing oral sex

on Travis.      	

	Charlene testified that, after defendant took the photographs of her and

Travis, the three of them returned to the living room.  Soon after, defendant

demanded that Charlene give him oral sex or he would show her mother the

photographs he had taken of her and Travis.  Charlene initially refused, but she

relented when she saw that defendant was serious because she did not want her

mother to know she had been drinking alcohol at defendant's trailer.  She and

defendant then went to the bedroom.  She sat on the edge of the bed and began

performing oral sex on defendant as he stood in front of her.  She saw a flash

of light close to her face and observed that defendant had taken a photograph of

her.  Defendant said, "This is all I needed."  Charlene then stopped the oral sex

because she felt defendant was "trying to get [her] in more trouble."  Charlene

testified that State's exhibit 3 shows her performing oral sex on defendant. 

Charlene testified that the male in the photograph could not be Travis because

defendant never took a close-up photograph while she was performing oral sex on

Travis.  Charlene also denied that Rico was the male in State's exhibit 3. 

Charlene testified that she had babysat for Rico but denied she had had a

relationship with him.    

	Charlene testified that she had visited defendant's trailer over 50 times

and that she drank a glass of wine in defendant's trailer on the night she

performed oral sex on him. 

	Travis testified that he was born on February 1, 1986. He testified that

he became acquainted with defendant through a friend and thereafter visited

defendant's trailer about four times a week.  Travis testified that he,

defendant, and Charlene watched a pornographic movie in the living room of

defendant's trailer one night.  Charlene began fondling Travis during the movie. 

Travis asked her to go to the bedroom with him, and she agreed.  Inside the bedroom Charlene began performing oral sex on Travis with the lights off.  Travis

saw flashes of light and then observed defendant standing in front of the bedroom

window.  Because the night was stormy, Travis thought the flashes of light were

lightning until defendant announced that he had taken pictures of Travis and

Charlene.  Travis testified that defendant took no close-up pictures of them. 

Travis identified both himself and Charlene in State's exhibit 1.  Although the

man's face is not visible in State's exhibit 1, Travis identified himself because

of the boxer shorts worn by the male and by the scar on the male's left hand. 

Travis also identified himself and Charlene in State's exhibit 3, though he

admitted he could not discern any clothing in the photograph except Charlene's

shirt.  

	Travis testified that he, defendant, and Charlene returned to the living

room after defendant took the photographs.  Defendant then told Charlene that he

would show Charlene's boyfriend Rico the pictures of her and Travis if she did

not give defendant oral sex.  Although Charlene laughed at defendant's remark,

Travis believed that defendant was serious and that Charlene really did not want

Rico to see the pictures.  Travis then left the trailer.  He did not see whether

defendant and Charlene went back to the bedroom together.  Travis further

testified that, between 9 p.m. and 12 a.m. one night, defendant was driving

Travis and Jenna home when he offered Jenna money to perform oral sex.  Jenna

refused.  Defendant then drove Travis and Jenna to a location on a country road

between Dixon and Sterling.  Travis saw a corn bin and a ruined building at this

location.  Travis identified the location in the photograph of the silo that

Glessner had taken.  Travis testified that he and defendant had been to the

location several times before to drink.  	Travis testified that, when they arrived at the corn bin, defendant threatened to leave Jenna there if she did not

perform oral sex on him.  Jenna agreed to defendant's demand but appeared

"upset."  Jenna and defendant stepped out of the truck and walked to the rear of

the truck while Travis remained inside.  Travis did not see what transpired

between defendant and Jenna outside of the truck.  Defendant later drove Travis

and Jenna home. 

	Jenna testified that she was 11 years old in the summer of 2000.  She

testified that she became acquainted with defendant through Penner.  Jenna

visited Penner first at her apartment and later at defendant's trailer after

Penna moved in.  Jenna considered Penner a "second mother."  Jenna spent a

significant amount of time at defendant's trailer in the summer of 2000 and

sometimes spent the night.  During one of Jenna's visits to the trailer,

defendant asked her to give him oral sex.  When she refused, defendant became

upset, stormed into the bathroom, and slammed the door.  Penner woke up from the

noise, was told by Jenna what had happened, and then began arguing with

defendant.  Jenna estimated that this incident occurred in midsummer 2000.  Jenna

testified that defendant asked for oral sex on another occasion while he was

driving her home from his trailer, but she refused that request as well.

		Jenna testified that about two to three weeks after defendant

 asked her for

oral sex in the trailer, he drove her and Travis to a corn bin on a gravel road. 

Jenna identified the location in the photograph of the silo that Glessner had

taken.  Jenna testified that the three of them stepped out of the truck once they

arrived.  Defendant then asked Jenna to give him oral sex.  When she refused,

defendant threatened to abandon her at the corn crib if she did not comply.  When

Jenna continued to refuse, defendant and Travis drove off without her.  When they

returned five minutes later, defendant again asked Jenna for oral sex.  Jenna

refused, and defendant renewed his threat to abandon her at the corn crib. 

Frightened because she did not know how she would otherwise get home, she agreed

to defendant's demand and performed oral sex on him behind the truck until he

ejaculated.  Jenna noticed that defendant was not circumcised.  Afterwards, Jenna

remarked to Travis that defendant's crotch "stunk" and that she felt like

vomiting.    

	Although Jenna was unable to give precise dates for the incident at the

corn crib and the two previous times that defendant asked her for oral sex, she

testified that the incidents all occurred while Penner was living in defendant's

trailer.    

 	On cross-examination, Jenna acknowledged that she did not tell Detective Glessner about the incident at the corn crib during their interview until after her mother and cousin left the room.  Jenna testified that she did not reveal the

incident initially because she did not want her mother to find out.  Asked why

she did not simply get back into the truck at the corn crib when defendant

threatened to abandon her, Jenna testified that she did not know.  Asked why she

did not ask Travis for help, Jenna testified that she did not believe Travis

could have helped her.  Asked why she did not simply refuse defendant's request

for oral sex and then walk back to the trailer, Jenna testified that she did not

know how to get from the corn crib to the trailer.  Jenna admitted that she did

not ask Travis to remain with her at the corn crib if defendant decided to leave. 

 	Jenna also admitted on cross-examination that she visited defendant's trailer after the corn crib incident.  She also admitted that she and Penner

joked about defendant's circumcision.  The parties then stipulated that defendant

underwent circumcision on June 6, 2000. 

	The State rested.  Defendant was the only witness for the  defense. 

Defendant testified that he was born on May 26, 1968.  He testified that Penner

and her son Kyle lived with him in his trailer in the summer of 2000 and that he

had a sexual relationship with Penner during that time.  Defendant testified that

Travis, Charlene, Jenna, and the other "kids" did not start visiting the trailer

until Penner invited them after she moved in.  Defendant testified that Charlene

had a relationship with Rico, defendant's uncle, and would sometimes stay

overnight at the trailer.  Defendant testified that the "kids" were sometimes in

the trailer in the evening when alcohol was present.  Defendant testified that

he was "always careful" at these times.  Defendant admitted that he knew Travis

was 14 years old, Charlene was 16 years old, and Jenna was 11 years old during

the summer of 2000.  

	Defendant denied ever watching a pornographic movie with Charlene and

Travis or demanding oral sex from Charlene.  Defendant testified that State's

exhibits 1 and 3 depict Charlene performing oral sex on Travis.  Defendant

recognized Travis by his boxer shorts.  Defendant testified that he first saw the

photographs on May 26, 2000, when he took his disposable camera to the pharmacy

to have pictures developed.  When he saw the photographs of Charlene and Travis

having oral sex he told Penner to destroy them and said that he no longer wanted the "kids" coming to the house.  The "kids," however, continued visiting the

trailer.  Defendant denied that he took the photographs.  He testified that

everyone in the trailer had access to the disposable camera and that he did not

know who took the photographs.  

	Defendant acknowledged that he told Detective Glessner during their first

interview in the fall of 2000 that he had taken the photographs.  Defendant

testified that he told Glessner in their second interview that Rico had taken the

photographs.  On cross-examination, defendant testified that Rico had taken the

photographs and that defendant had initially lied to Glessner in order to protect

Rico, who was on parole.  When confronted with the fact that he had previously

testified that he did not know who took the photographs, defendant testified that

he was confused when he gave the prior testimony.       

  	Defendant testified that Penner first invited Jenna to the trailer.  Jenna would visit the trailer once a week and spend the night.  Defendant testified

that he drove Jenna home from the trailer on at least two occasions but denied

ever asking Jenna for oral sex.  Defendant further denied ever having been to the

silo depicted in Glessner's photograph.

	Defendant further testified that his circumcision in June 2000 entailed a

three-week recovery period.  Defendant admitted that he had been convicted of

"numerous crimes" including criminal damage to property in 1999 and obstruction

of justice in 1994.

	Defendant was convicted on all counts.  His first argument on appeal is

that his trial attorney provided ineffective assistance of counsel by failing to

move the trial court to sever count I of the information (charging sexual assault

of Jenna) from the remaining counts for trial.  

	Charges against a defendant may be joined if the offenses are based on two

or more acts that are part of the same comprehensive transaction unless it

appears that the defendant will be prejudiced by the joinder of separate charges. 

People v. Patterson, 245 Ill. App. 3d 586, 587 (1993).  A defendant is not prejudiced by the improper joinder of charges if, had separate trials been given,

defendant still would have been convicted.  Patterson, 245 Ill. App. 3d at 591; cf. People v. Peterson, 108 Ill. App. 3d 856, 860 (1982); People v. Sockwell, 55 Ill. App. 3d 174, 176-77 (1977). 

	Illinois courts address ineffective assistance of counsel claims under the

two-prong test established in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), and  People v. Albanese, 104 Ill. 2d 504, 526-27 (1984).  Under Strickland, a defendant must prove (1) that defense counsel's performance fell below an objective standard of reasonableness, and (2) that

there is a reasonable probability that, but for this substandard performance, the

result of the proceeding would have been different.  People v. Alvine, 173 Ill. 2d 273, 293 (1996).  "A reasonable probability is a probability sufficient to

undermine confidence in the outcome."  Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.  Mere conjecture and speculation are not sufficient

to establish this probability.  People v. Gosier, 165 Ill. 2d 16, 24 (1995).  Because a defendant's failure to establish either part of the Strickland test will defeat an ineffectiveness claim, a court need not address both components

of the inquiry if the defendant makes an insufficient showing on one. 

Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069.  Accordingly, a court considering a claim of ineffective assistance "need not

determine whether counsel's performance was deficient before examining the

prejudice suffered by the defendant as a result of the alleged deficiencies."  Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069.

	Defendant's argument is directed almost exclusively at the first prong of Strickland; his attention to the second prong is limited to the general statement that the "prejudice to the defendant in having all charges with separate victims,

separate acts and separate occurrences heard all at once by the same jury was

great."  Because defendant's attempt to satisfy the second prong of Strickland is limited to a single conclusory remark, we would be justified in finding the

point waived.  People v. Rockey, 322 Ill. App. 3d 832, 839 (2001) ("Arguing an issue in a conclusory fashion or failing to adequately brief or argue an issue

results in the waiver of the issue").  However, because our addressing the merits

of defendant's Strickland claim will serve to clarify Illinois law in an important respect, we will relax the waiver rule here.  See People v. Farmer, 165 Ill. 2d 194, 200 (1995) ("The waiver rule is one of administrative convenience

rather than jurisdiction, and the goals of obtaining a just result and

maintaining a sound body of precedent may sometimes override considerations of

waiver").   

	Defendant cites two fairly recent appellate court cases, People v. Karraker, 261 Ill. App. 3d 942 (1994) (3d Dist. 1994), and  People v. Lewis, 240 Ill. App. 3d 463 (1992) (1st Dist. 1992), both of which found a trial attorney

ineffective for not seeking severance of charges.  However, the analyses in these cases do not comport with Strickland because they suggest that a defendant meets his burden under Strickland simply by showing that joinder of the charges was improper and that no conceivable trial strategy justified trial counsel's failure

to seek severance.

	In Karraker, the defendant was convicted of unlawful possession of a weapon by a felon, unlawful use of a weapon (manufacture of a machine gun), and theft. 

He claimed that his trial counsel was ineffective for failing to sever the

charges for trial.  The appellate court agreed, analyzing the ineffectiveness

claim as follows:

	"Here, the alleged offenses were completely unrelated, they took place

days and months apart, and were beyond a doubt not part of the same

comprehensive transaction.  In addition, the defendant raised totally

different defenses to the three charges. *** Most strikingly, however, he

raised an entrapment defense to the charge in count II that he

manufactured a machine gun.  Raising this defense necessarily required

that he admit to having committed the alleged offense. [Citation.] Defense

counsel's failure to recognize the prejudicial impact such an admission

would have in the context of the other charges is incomprehensible.  

		In failing to request a severance of the unrelated charges, trial

counsel's representation fell far below any objective standard of

reasonableness.  Multiple unrelated charges, coupled with an admission of

having committed one of the offenses, may well have swayed the jury to

convict the defendant for being a bad person, rather than on the merits of

the State's proofs."  Karraker, 261 Ill. App. 3d at 953.

	In Lewis, the appellate court held that defense counsel was ineffective for failing to have two murder charges severed.  The court reasoned:

		"Our review of the record here leaves no doubt that defense counsel

should have filed a motion to sever the two murder charges.  According to

the evidence, there were different motives for the murders of Venus and

Nimrod, and the murders occurred at different locations and on different

days.  That the victims' bodies were discovered in the same location, and

there were common witnesses to the two murders, does not lead to the

conclusion that the murders were part of the same comprehensive

transaction. [Citations.]

		We can conceive of no legitimate trial strategy in defense of

counsel's failure to move for a severance.  Instead, we are struck by the

distinct disadvantage defendant suffered from the joint trial. 

Defendant's trial counsel raised markedly different defenses to the two

murder charges, denying defendant had any involvement in Venus' murder

while admitting that defendant stabbed Nimrod, but claiming that Lovie

struck the fatal blow, and that the murder was justified.  Certainly,

counsel's task of convincing the jury of each of these theories was made

more difficult by having to simultaneously argue that a completely

distinct theory applied to the other murder.  Also, we cannot

underestimate the impact the cumulative evidence regarding the two murders

must have had on the jury. [Citation.]  Accordingly, there is no doubt

that defendant was prejudiced by defense counsel's failure to move to

sever the charges."  Lewis, 240 Ill. App. 3d at 468-69. 

	Karraker and Lewis both find the Strickland test satisfied entirely with proof that the joinder of charges was manifestly improper and that trial

counsel's failure to seek severance fell below an objective standard of

reasonableness.  Although both cases cite "prejudice" in support of their

holdings, neither applies the second prong of Strickland, which requires that the defendant demonstrate a reasonable probability that, but for counsel's error, the

result of the proceeding would have been different.  In our view, the second

prong of Strickland requires the defendant to show that there is a reasonable probability that he would have been acquitted in separate trials had the counts

been severed.

	There are scant post-Strickland Illinois cases in the published reports addressing ineffectiveness claims relating to motions for severance of charges. 

 Aside from Karraker and Lewis, the only case we have come upon is People v. McLemore, 203 Ill. App. 3d 1052 (5th Dist. 1990), where the court rejected a claim of ineffectiveness based on trial counsel's failure to seek severance of

charges.  The court explained:

	"The joinder of the charges was reasonable since the testimony of the

arresting officers was applicable to both defenses and to require an

additional trial would have been judicially inefficient.  While it would

have been an easy matter for counsel to have filed a motion for severance,

the defendant has not established that there was any reasonable

probability that the result would have been different under the

circumstances of this case."  McLemore, 203 Ill. App. 3d  at 1057-58.

The first half of this analysis concerns factors that are irrelevant to both

prongs of the Strickland test, and the second half is merely conclusory.  Thus, McLemore offers no guidance on the issue at hand.  We agree with decisions in other jurisdictions holding that a defendant's claim that he was prejudiced by

his trial counsel's failure to seek severance of charges depends on how the

defendant would have fared in separate trials.  See, e.g., State v. Lucky, 45 Cal. 3d 259, 278, 753 P.2d 1052, 1063, 247 Cal. Rptr. 1, 11-12 (2001); Holloway v. State, 245 Ga. App. 510, 514, 537 S.E.2d 708, 712  (2001);  State v. Warren, 55 Wash. App. 645, 655, 779 P.2d 1159, 1165 (1989).  This approach is analogous

to the analysis employed in cases where the defendant claims his trial counsel

was ineffective for seeking to sever the defendant's case from a codefendant's. 

In that scenario, the defendant must show a reasonable probability that he would

have been acquitted in a separate trial.  See, e.g., People v. Carter, 168 Ill. App. 3d 237, 250 (1988).

	Here, defendant fails to establish a reasonable probability that he would

have been acquitted in separate trials had count I been severed from counts II, III, and IV.  We note, first, that defendant does not dispute the State's proof

on the age-related elements of the four charges.   

	As for the remaining proof, the State charged in count I that defendant

penetrated Jenna's mouth with his penis.  Jenna testified that defendant

threatened her into performing oral sex on him behind a truck at a rural

location.  Although Travis did not see what occurred between defendant and Jenna

behind the truck, he did hear defendant's threats and Jenna's eventual assent and

see them walk behind the truck where they remained for a time.  Against this

evidence, defendant denied that he ever had oral sex with Jenna or had ever been

to the rural location where the incident allegedly occurred.  There was no

reasonable probability that defendant would have been acquitted had he been tried

separately on count I.  

	Counts III and IV charged, respectively, that defendant knowingly

photographed Charlene performing oral sex on another person and that he knowingly

photographed Travis with his genitals exposed. Charlene and Travis both testified

that defendant photographed them engaged in oral sex.  Their accounts were

corroborated by two photographs introduced at trial, each of which shows Charlene

performing oral sex on a male whose genitals are visible.  Travis identified

himself as the male in both photographs.  While Charlene contradicted Travis on

this point, claiming that one of the photographs depicted defendant because he

had taken it while Charlene performed oral sex on him, Charlene and Travis agreed

that Travis was depicted in the other photograph with his genitals exposed. 

Defendant offered only general denials to dispute this evidence.  There was no

reasonable probability that he would have been acquitted on counts III and IV. 

    	The State charged in count II that defendant penetrated Charlene's mouth with his penis.  Charlene testified that, following his photographing of her and

Travis, defendant threatened Charlene into performing oral sex on him.  Although

Travis had left the trailer before the oral sex between defendant and Charlene

allegedly occurred, Travis testified that he heard defendant threatening Charlene

and believed that defendant was serious in making the threats.  Defendant merely

denied that the oral sex occurred.  There was no reasonable probability that

defendant would have been acquitted on count II.  

	Therefore, because defendant has not shown that his trial counsel's failure

to move for severance worked any prejudice, he has not carried his burden under

the second prong of Strickland.  

	[The following material is nNonpublishable material under Supreme Court Rule 23 removed here.] 	Defendant next argues that the trial court erred in admitting four

photographs of activities inside defendant's trailer.  Defendant testified on

direct examination that he was "careful" with alcohol when "kids" were in his

trailer.  On cross-examination, the State asked defendant about certain

photographs developed from the same roll of film that contained the photographs

in State's exhibits 1 and 3.  Defendant described the first photograph as showing

Travis apparently drinking from a bottle of "Mad Dog 20/20" wine while seated on

a couch.  Defendant identified the second photograph as showing him holding a

goat-leg cane and Travis standing beside him apparently drinking a bottle of "Mad

Dog 20/20."  Defendant insisted, however, that Travis was only pretending to

drink in these pictures and that only Charlene was drinking that night. 

Defendant then admitted that Charlene was below the legal age for drinking at the

time.  Defendant identified the third photograph as depicting him holding the

goat-leg cane while Travis holds a bottle of "Mad Dog 20/20," and the fourth

photograph as showing Travis holding the cane while defendant holds the bottle. 

	The State posited two independent grounds for admission of the photographs. 

First, the State argued that the photographs impeached defendant's testimony on

direct examination that he was careful with alcohol when "kids" were present. 

The State further reasoned that the photographs were admissible as substantive

evidence to rebut the defendant's claim when shown the photographs that Travis

was merely feigning to drink from the bottle.  Second, the State argued that

defendant "opened the door" to the  admission of the photographs as substantive

evidence by his insistence that he was careful with alcohol in the presence of

"kids."  The trial court admitted the photographs over defendant's objection.

	Defendant asserts that, because defendant was not charged with providing

alcohol to minors, the photographs impeached him on a collateral matter and were

therefore inadmissible.  Defendant further argues that the admission of the photographs as substantive evidence "enflame[d] the jury's passions against [him]

and *** served to undermine the presumption of innocence."  

	Whether evidence is admissible is a determination within discretion of the

trial court, and a reviewing court will not disturb that decision unless the

record fails to demonstrate a sufficient basis for it.  People v. Bridges, 273 Ill. App. 3d 773, 776 (1995).  Defendant claims his conduct with alcohol in the

presence of teenagers is irrelevant to the State's charges.  Defendant, however,

first raised the issue of his conduct when he claimed he was "careful" with

alcohol when "kids" were present.  Even otherwise inadmissible evidence may

become admissible if the defense opens the door to its admission.  People v. Jefferson, 184 Ill. 2d 486, 496-97 (1998).  That is, a party cannot complain of evidence which he himself has introduced or brought out.  Chubb/Home Insurance Cos. v. Outboard Marine Corp., 238 Ill. App. 3d 558, 568 (1992).  The reason for this rule is that the party who is now objecting to the testimony actually

invited the testimony and thus is not permitted to claim that the testimony

deprived him of a fair trial.  People v. Thomas, 199 Ill. App. 3d 79, 99 (1990). 

	Defendant claimed on direct examination that he was "careful" with alcohol

when "kids" were in his trailer.  The photographs proffered by the State show

otherwise.  One of the photographs shows Travis drinking from a bottle of wine

while seated on a couch.  The remaining three photographs show Travis posing

chummily with defendant as they alternately hold a bottle of wine and a goat-leg

cane.  In one of these pictures Travis holds the bottle while in another he

drinks from the bottle.  As defendant first raised the issue of his conduct with

alcohol when "kids" were in his trailer, he was precluded from later objecting

to the State's evidence on that same point.  Cf. Doria v. Costello, 22 Ill. App. 3d 505, 512 (1974) (evidence of plaintiff's intoxication at the time he was hit

by defendant's car was admissible because plaintiff earlier presented evidence

that he was not intoxicated at the time of the accident).  Therefore, the trial

court did not abuse its discretion in admitting the photographs as substantive

evidence.

	Defendant relies on People v. Kannapes, 208 Ill. App. 3d 400 (1990).  There, defendant was charged with delivery of a controlled substance (cocaine).  At trial, defendant denied that he ever used, sold, or facilitated the sale of

any illegal substance.  The trial court granted the State's motion to introduce

into evidence a photograph of the defendant wearing a shirt that bore the words

"Enjoy Cocaine."  In its closing argument, the State submitted that the shirt was

"circumstantial evidence that [defendant]'s a cocaine dealer, that he knows about

dealing drugs and that that's what he's involved in."  Kannapes, 208 Ill. App. 3d at 407.  The appellate court reversed, holding that the photograph was more

prejudicial than probative.  Kannapes, 208 Ill. App. 3d at 406-07.  

	Kannapes is inapposite.  The cocaine endorsement on the defendant's shirt supported only a tenuous inference that defendant actually used cocaine.  Here,

by contrast, the photographs of Travis and defendant directly contradicted

defendant's testimony that he was always careful with alcohol when "kids" visited

his trailer.

	Defendant next asserts that the State made improper remarks in its rebuttal

closing argument.  Three times during its argument the State characterized

certain aspects of defendant's closing argument as "smoking mirrors" or "smoke

in the mirrors."  At the outset of its argument the State said: 

	"Ladies and Gentlemen, let's keep this in mind, you all used smoking

mirrors.  You can always use you [sic] common sense going into this case.  Don't let the defendant confuse the issue with smoking mirrors [sic]."  

Later, the State said: 

	"Now, [Jenna R.], let's talk about time frame.  Defense counsel started

his argument by saying *** defendant poor him, he can't figure out what he

was doing on May 10 of 2000 and then say put yourself in that place, how

would you possibly know what you were doing May 10 of *** 2000, but yet by the time we get to the end of his argument with Jenna it's you know what,

you 13 year old girl, you should know exactly when this event happened to

you and she consistently said on the stand *** I don't know, I don't know,

it's the summer of 2000, I don't know.  She talked about Patty being

there.  She consistently says Patty's there but she doesn't know. ***  The

fact is she's narrowed it down as much as she could.  It's the summer of

2000, Ladies and Gentlemen, and that's as far as she can narrow it down.

		Now, through the rest of the witnesses we can narrow it

	down further because we know that Patty Penner was in that residence.  She

said she moved in April 22 of 2000 and she moved out around the first week

of July.  Now, the whole circumcision thing fits right in there.  The

defendant himself admitted between the time that Patty moved into that

residence and between the time he got circumcised there was a 42 day span. *** [Defendant] solicits [Jenna] at the house and two or three weeks later

is the incident by the corn crib and all those events occur while Patty is

in that trailer and that puts us right smack dab in the summer of 2000. 

And furthermore regarding the dates, Ladies and Gentlemen of the Jury,

defense counsel himself can't even keep the dates together in this story. 

He questioned the defendant on the stand yesterday and said to the

defendant when Detective Glessner first talked to you about these pictures

on June 22 of 2000, defendant proceeded to answer part of that question

and then he again stated during June 22 of 2000.  Based on that how in the

world can we expect this 13 year old child to keep dates like that

together?  When the defendant can't even do it or the defense attorney can't even do it and the defendant responded acknowledging that it was

June 22, 2000 and everybody in this case admits that Detective Glessner

didn't talk to [defendant] on June 22, 2000 about those pictures.  Go

smoke in the mirrors about the time frame."  

Lastly, the State said: 

		"Now there's going to be an alternative count of child pornography

[count III of the information] you will get *** separate instructions and

separate verdict forms on each of those counts.  The second child

pornography case [count III] is worded differently. *** The State must

prove the following propositions.  First proposition, that the defendant

photographed a child he knew or reasonably should have known to be under

the age of 18.  Second proposition, that such child actually or by

simulation engaged in the act of sexual contact involving the mouth of

that child and the sex organs of another person.  If you find from the

consideration of all the evidence that each one of the propositions has been proved beyond a reasonable doubt, you should not find --- or I am

sorry, you should find the defendant guilty. *** Ladies and Gentlemen of

the Jury, smoking mirrors.  I don't care who the person, the male person

in this picture [State's exhibit 3] is, it doesn't matter and I don't have

to prove it to you.  I don't care, I don't care if he was wearing purple

socks that night, what I have to prove to you is that *** there is a child

depicted in this picture engaged in an act of sexual conduct involving the

mouth of the child and the sex organs of another person.  So whether you

decide and after hearing the evidence you feel this is Travis or this is

[defendant], it doesn't matter. *** Clearly it's Charlene.  She says it's

her.  Travis believes this picture is him.  Charlene says it's

[defendant], doesn't matter, I don't care who it is.  The fact is that she

says [defendant] took the picture and even if Travis is wrong and this is

actually Travis, he says [defendant] took the picture."

	Defendant claims the State's remarks were "highly inappropriate and

extremely prejudicial because the remarks were not fleeting, but were numerous,

not simply passing references."  "Furthermore," defendant argues, "the evidence

in this case was closely balanced and this improper argument unduly prejudiced

the jury."  Although his trial attorney did not object to the remarks, defendant

claims they are reviewable because his attorney's failure to object to them

amounted to ineffective assistance of counsel or, alternatively, because the

remarks constituted "plain error." 

	Defendant's ineffectiveness argument consists of the following twelve

words: "[D]efense counsel was ineffective in failing to object to the improper

argument."  Defendant explains neither how his attorney's actions fell below an

objective standard of reasonableness nor how a reasonable probability exists

that, but for counsel's errors, the result of the proceeding would have been

different.  Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.  As this argument is undeveloped, the issue is waived.  See Rockey, 322 Ill. App. 3d at 839.  

	Defendant does not develop his plain error argument either.  Plain error

is a limited and narrow exception to the general waiver rule, to be invoked only where (1) the evidence is closely balanced; or (2) the errors are of such

magnitude that defendant was denied a fair and impartial trial and remedying the

error is necessary to preserve the integrity of the judicial process."  People v. Nieves, 192 Ill. 2d 487, 502-03 (2000).  Defendant neither explains how the evidence is closely balanced nor why the error is so severe that it must be

remedied to preserve the integrity of the judicial process.  While this would

justify our finding the argument waived (see Nieves, 192 Ill. 2d at 503), we will relax the waiver rule to explain why we find no error occurred here. 

	A defendant faces a substantial burden in attempting to achieve reversal

based upon improper remarks made during closing argument.  People v. Byron, 164 Ill. 2d 279, 295 (1995).  Prosecutors are afforded wide latitude in closing

argument and may argue facts and reasonable inferences drawn from the evidence. People v. Williams, 192 Ill. 2d 548, 573 (2000).  It is well settled that prosecutorial comments either disparaging the integrity of defense counsel or

accusing defense counsel of fabricating a defense are improper.  People v. Jenkins, 333 Ill. App. 3d 534, 540 (2002).  However, a prosecutor's description of the defense's closing argument as a "smoke screen" (or the like) employed to

divert attention from substantive issues is not improper if given in response to

the defense's attempts to focus the jury's attention on minor flaws in the

State's case.  See Jenkins, 333 Ill. App. 3d at 541; People v. Beler, 327 Ill. App. 3d 829, 836 (2002); People v. Smith, 154 Ill. App. 3d 837, 849 (1987).

	Here, the State's remarks were in response to defense counsel's comments

on inconsequential matters.  The State's comments were directed at defense

counsel's remarks (1) that Jenna's failure to assign a precise date for the corn

crib incident discredited her testimony about the sexual assault, and (2) that

the State's case was deficient because there was conflicting evidence as to

whether defendant or Travis is the male depicted in State's exhibit 3.  Both

points raised by the defense were minor.  Jenna sufficiently narrowed the time

frame for the corn crib incident by stating that it occurred in the summer of

2000 while Penner was renting defendant's trailer.  Her testimony that defendant

was uncircumcised at the time of the incident was consistent with the parties'

stipulation that defendant underwent circumcision on June 6, 2000.  Travis' corroborative testimony was further evidence that the sexual assault occurred. 

Thus, despite Jenna's failure to identify a precise date for the sexual assault,

the State presented abundant evidence that defendant sexually assaulted Jenna as

charged in count I of the information.  Therefore, defense counsel's attack on

Jenna's testimony concerned a minor point, and the State committed no error by

responding to it.  	

	As for the photographs, it is true that Travis and Charlene differed as to

whether defendant or Travis is the male depicted in State's exhibit 3.  However,

the State's proof relating to counts III and IV, charging child pornography, did

not in any way hinge on the identity of the male in State's exhibit 3.  Count IV

charges that defendant photographed Travis with his genitals exposed, and the

State provided ample evidence that Travis is the male in State's exhibit 1. 

Count III charges that defendant photographed Charlene with her mouth on the

genitals of another, and the State presented abundant evidence that Charlene is

depicted in State's exhibits 1 and 3.  Additionally, there was overwhelming

evidence that defendant took both photographs.  The State need not have shown the

identity of the male in exhibit 3 to prove the allegations in counts III and IV. 

Therefore, because the State rightly accused the defense of diverting attention

away from the substance of the case, we find no error. 

	[The preceding material is nonpublishable under Supreme Court Rule 23.]

 	Defendant also argues that the trial court failed to admonish him properly

per Supreme Court Rule 605(a) (188 Ill. 2d R. 605(a)) and that this failure led

him to forgo filing a motion to reconsider his sentence.  The State agrees that

the admonition was flawed, as do we.  For instance, the trial court told

defendant that the appellate court could increase his sentence if he appealed. 

As the trial court's admonishment was defective, we remand this cause so that

defendant may receive the proper admonition and file a motion to reconsider his

sentence. 

	For the foregoing reasons, we affirm the judgment of the circuit court of Lee County but remand this cause with directions.  	

	Affirmed and remanded with directions.  

	BOWMAN and CALLUM, JJ., concur.