## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Ruback , 2013 IL App (3d) 110256

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. CHRI STOPHER A. RUBACK, De fenda nt-Appellant.

District & N o. Third District Docke t No. 3-11-0256

Filed April 22, 2013

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Def endant’ s conviction and sentenc es for three counts of predatory crimi nal sexual assault of a child wer e upheld, but the fin e i mp o s ed pursuant to section 5-9-1.15 of the Unified Code of C o rr ec t i ons was

vacated on the g round that the charg ed offe nses occur red prior to the date the statute we nt into effec t.

Dec ision Under
Review Appea l from the Circuit Court of Kankakee County
, No. 08-CF- 591; the Hon. Kathy

Br adshaw -Elliott, J udg e, pre siding.

J udg ment Affir med in part a

nd vacated in part.Counsel on

Appea l J ay Wiegman, of State Appellate Def ender ’s Offic e, of Ot t aw a, for appellant.

J ohn J

. Boyd, State’s Attorney
, of Kankakee (T erry A. Mertel and Thomas D. Ara do, both of State’s Attorney s Appellate P rosecutor’s Offic e, of c ounsel), for

the People.

Panel J USTI CE CARTER delivered the judgment of the c ourt, with opinion.
J ustice Holdridg e spec ially concur red, w ith opinion.
J ustice Schmidt specially concur red, w ith opinion.

OP INION

¶ 1 After a jury trial, the defe ndant, Christopher A. Ruback, was found guilty of three counts of predatory criminal sexual assault of a child (720 I L CS 5/12-14.1(a) (1) (West 2008)). The defe ndant was sentenc ed to three consec utive terms of 12 yea rs’ imprisonment and was order ed to pay a $500 fine. On appea l, the defe ndant argues that the trial court err ed by : (1) barring admission of the first part of Amanda Ruback’s statement to th e p o l i ce; and (2) imposing a $500 fine wher e the statute authorizing the fine did not g o into eff ect until afte r he committed the offe nse. We vaca te the $500 fine and, while we disagree on the analy sis,

we a ffirm the r emainder

of the c ircuit court’ s judgme nt.

¶ 2 FACTS ¶ 3 On September 19, 2008, the defe ndant was c harg ed by indictment with three c ounts of predatory criminal sexual assault of a child. 720 I L CS 5/12-14.1(a) (1) (West 2008). The case proce eded to a jury trial. The State beg an by calling Mary H. to testify

. Mary H. testified that she was the victim’s older sister, and since J uly 2008, the victim had lived with her. Be fore the victim moved into her house, the victim lived with the defe ndant and his wife, Amanda. ¶ 4 Approxim ately two wee ks afte r the victim moved in, Mary H. was poking fu n at h er beca use she had to take a sex educ ation class. The victim responde d that the defe ndant and Amanda had alre ady taught her about sex. The defe ndant and Amanda purportedly used a g ame called “Stripopoly ,” to teac h the victim about sex. Whil e playing the g ame, the victim drew a car d that d i rected her to g ive a “blow job to the male on her right.” The victim indicated to Ma

ry H. that she perf

ormed the ac t. There afte r, the de fenda nt drew a car d that i n structed him to “ea

t out the woman to his right.” The victim watche d as the d ef en d an t perf ormed ora l sex on Amanda. ¶ 5 On another occa sion, the defe ndant had sexual intercour se with the victim while Amanda

-2-ru b b ed her shoulders, and encour ag ed her to relax

. The victim also repor ted that th e defe ndant kept her home from schoo l an d m ad e her watch adult movies and prac tice masturbation. At the end of the conve rsation, Mary

H. filed a police re port. ¶ 6 T h e victim testified that i n the fall of 2007, she l ived wit h the defendant and Amanda, and she was in the six th g rade

. During October or November 2007, the victim’s teac her sent

a notice home that she would be attending a sex education class. Amanda told the victim that she and the d ef

endant did not want “some quote cra ck teac her teac hing [t he victim] this.” Amanda asked the victim if it was all right if she and the defe ndant taught her about sex. The victim ag ree d. ¶ 7 One night, the defe ndant woke the victim and brought her downstairs wher e the game “Stripopoly” was set up. The defe n d an t an d Amanda explained that the g ame was like Monopoly
, but if you went to jail you had to remove an articl e o f cl o thing, and instead of community chest car ds, the player picked up a car d with an instruction to perf orm a sex act

on the person to their right or left. After sever al rounds, the victim was left wea ring only her t-shirt and bra, an d s h e picked up a card that instructed her to g ive the defe ndant a “blow job.” The victim was unfamiliar with the sex act, and Am anda demonstrated on the defe ndant. Amanda then direc ted the victim to perf orm oral sex on the defe ndant. The victim did as she wa s instructed. ¶ 8 On other occa sions, the defe ndant or Amanda wo k e t h e v i ct i m and took her to their bedroom to watch pornographic movies. Whil e one of the movies was playing, the defe ndant and Amanda asked the victim if she knew how to “eat out a g irl.” The defe ndant demonstrated by perf

orming oral sex on Amanda. After war ds, he instructed the victim to perf orm oral sex on Amanda. On a differ ent occa sion, the defe ndant and Amanda perf ormed oral sex on the victim. The defe ndant also made the victim perfor m oral sex on him. ¶ 9 During the fall of 2007, Amanda kept the victim home from school on sever al day s. After the victim’s brother and niece left for school, the defe ndant and Amanda called her into their bedroom. On three or four of these day s, the defe ndant attempted to have vag inal intercour se with the victim. The defe ndant beg an by perf orming oral sex on the victim, and then he tried
to insert his penis inside the victim’s vag ina. During sever al of the defe ndant’s attempted penetr at i o n s , the vi ctim complained of a sharp pain, and the defendant stopped. Howeve r, the defe ndant once place d the tip of his penis inside of the victim’s vag ina while the victim lay in Amanda’ s lap, and Ama nda rubbe d the victim’s shoulders to relax her. ¶ 10 The victim stated that she was afr aid to tell the defe ndant not to perf orm the sexual a cts beca use she did not want to g et yelled at. The incidents stopped in Dec ember 2007. ¶ 11 Next, the State called Amanda to testify

. Amanda testified that she was the def endant’ s wife and the victim was her half-sister

. Amanda acquir ed custody of the victim when she was four year s old. Howeve r, the victim left her home in Februar y 2008, afte r the defe ndant was

arr ested on an unrelated charg e. Additionally
, Amanda pled guilty to two counts of predatory criminal sexual assault of a child on Fe bruar y 1, 2010, and rec eived a sentenc e of 12 year s’ imprisonment. The cha

rg e involved sexual misconduct with the victim in thi s case

. ¶ 12 Amanda stated that the topic of sex was never discussed betwee n the defe ndant and the victim. Amanda denied observing the defe ndant have sex with the victim, and she stated that

-3-she did not perf orm sex acts on the victim. In response , the State introduced Amanda’ s prior inconsistent statement from her plea agree ment hearing. At the plea, Amanda admitted that she awoke the victim at night a nd kept her home from school so that she and the defe ndant could enga g e i n s exual acts with the vi ctim. Amanda demonstrated sex acts for the vi ctim and then instructed the victim to perf orm t h e ac t s o n the defendant. Amanda observed t he defe ndant attempt to have sexual intercour se with the victim while she rubbed the victim’s back a nd told her it was all right. ¶ 13 The State also introduced Amanda’ s prior in co nsistent statement from her August 28, 2008, police interview. Amanda testified that she did not reme mber the questions that the detec tives had asked her, but she reme mbere d that the interview was the first time she lear ned of the allegations ag ainst the d ef en d ant. Amanda eventually admitted that she had told the detec tives that she walked in on the defe ndant whil e h e an d t h e victim wer e perf orming oral sex on eac h other. Howeve r, she noted that this occur red “af ter a half an hour of them telling me what was g oing on and what [t he victim] was say ing.” She agree d that she told the detec tives the victim was forc ed to perf orm oral sex on her and the defe ndant. At the conclusion of the State’s examination, Amanda stated that s h e told the detec tives that she intended to leave the defe ndant, but she did not follow through with the divorce

. Amanda last communicated w ith the defe ndant, via letter , one month befor e trial. ¶ 14 During cross-e x amination, Amanda stated that during the police interview, the first time she was asked if she had eng ag ed in sexual misconduct with the victim, she denied doing so. T h e S t at e objected on g rounds that the testimony was inadmissible as a prior consistent
statement. Def

ense counsel arg

ued that Amanda’ s prior consistent statement was admissible
to rebut the State’s charg e that Amanda was motivated to lie. Def ense counsel noted that the State had impeache d its own witness, implying that Amanda was motivated to lie. The trial
court rea soned that Amanda’ s testimon y p erta ining to her rec ent corr espondenc e with the defe ndant implied that she had a motive to lie. The trial court initially allowed the testimony
to r ebut a charg e of rec ent fabrication and allowed the defe ndant some lee way on the issue beca use it was not “re al clea

r based on the two exceptions.” The trial court further require d that defe nse counsel ask specific questions about Amanda’s denials from the be g inning of the police interview. The court allowed defe nse counsel to revie w Amanda’ s video-re corde d interview be fore the trial re sumed the followingmorning

. ¶ 15 The next morning
, def en s e co u n s el continued cross-e x amination. As defe nse counse l inquired abou t t h e fi rs t part of Amanda’ s police interview, the State objected. The State
argued that Amanda’ s police interview constituted one statement and it had already been admitted as a prior inconsistent statement. As a result, Amanda’ s denials from the beg inning of t he int ervie w were inadmiss ible under the prior consistent stateme nt rule. Following an offe r of proof, the trial court agree d with the State that Amanda’ s police interview was one statement and it could not be split into two parts. The court conclude d that Amanda’ s denials

wer e inadmis sible prior consistent stateme nts. Howeve r, it allowed de fense counsel to ask Amanda if the detec tives had g iven her the information reg arding the specific sex acts. There afte r, Amanda testified that the detec tives told her during the interview that the victim had implicated he r and the defe ndant in sexual mi sconduct. ¶ 16 During cross-e x amination by defe nse counsel, Amanda testified that she enter ed into the

-4-plea agree ment beca use she was told that “it would be the best th i n g fo r [ her]” and if she
went to tr ial, she would “g et the maxi mum sentenc e.” Amanda maintained that she did not
eng ag e in se x ual misconduct with the victim and she did not observe the defe ndant having sexual relations with the victim. ¶ 17 Following Amanda’ s testimony
, the State called Detec tive Robert Gra y to testify

. Gra

y stated that he conducte d a video-re corde d interview with Amanda on August 28, 2008. During the interview, Amanda indicated that she saw the defe ndant perf orm oral sex on the victim, an d s h e al s o observe d the defe ndant perf orming oral sex on the victim while the victim perf

ormed oral sex on the defe ndant. At the end of Gra y ’s testimony
, the State played

a video rec o rd ing that contained sever al clips from Amanda’ s interview. In the rec ording
, Amanda a dmitted that she observe d the def endant pe rfor

m various sex acts on the victim. ¶ 18 The defe ndant testified that he trea t ed t h e v i ct im as his own child, but he was not involved in her school work and school activities beca use he worke d 60 hours a wee k. In the spring of 2007 he starte d using c ocaine and he w as ar rested for il leg al pos session of drugs

on Fe bruar

y 7, 2008. The defe ndant later pled guilty to the offe nse. The defe ndant testified that he suffe red from impotency as a result of his coca ine use. The defe ndant denied playing “Sexopoly ” with the victim or eng ag ing in acts of oral sex o r s ex u al i nterc ourse with the victim. ¶ 19 After closing arguments, the jury found the defe ndant guilty of three counts of predatory criminal sexual assault of a child. The trial court sentenc ed the defe ndant to three consec utive 12-year terms of imprisonment and imposed a $ 5 00 fine under section 5-9-1.15 of the Unified Code of Correc tions (Code) (730 I L CS 5/5-9-1.15 (West 2008)). The def endant
appea ls.

¶ 20 ANALYSI S ¶ 21 I . Prior Consist ent Statement ¶ 22 Th e d ef

en d an t argues that the trial court err ed in ref using to admit the first part of Amanda’ s police interview. The defe ndant contends that the statement was admissible as a prior consistent statement to rebut a charg e of rec ent fabrication. Alternatively
, the defe ndant
argues that the completene ss doctrine require d admission o f t he excluded portions of Amanda’ s police interview beca use it was nec essar

y to place her inconsistent statement in its proper c ontext

. ¶ 23 The parties spend some time in their briefs d i s cu s s i n g wh et h er Am anda’s police interview consisted of two statements or a single statement with contra dictory portions. I find that this discussion is irrelevant, a s the application of the prese nt rules wholly resolves the issue. ¶ 24 The admissi on of evidence lies within the s ound discretion of the trial court. People v. W ilson
, 2012 I L App (1st) 10103 8

. On appea l, the trial court’s decision t o admit evidenc e is revie wed for an abuse of discretion. People v. Bec ker
, 239 I ll. 2d 215 (2010). A trial court abuses its discretion wher e its d ec i sion to admit evidenc e is arbitra ry , fanc iful, or

unrea sonable, or where no rea sonable pe rson would agree with the position. Id.

-5-¶ 25 A. Admission of Prior Consist ent Statement Evidenc e

¶ 26 Gene rally
, a witness cannot be corr oborate d on direc t examination b y ad m i s s i o n of a prior statement that is consistent with her trial testimony

. People v. Heard
, 187 I ll. 2d 36 (1999). Such statements are inadmissible hear say and may not be used to bolster a witness’s testimony

. People v. Belknap
, 396 I ll. App. 3d 183 (2009). Howeve r, a prior consis t ent statement may be introduced to rebut an express or implied charg e on cross-e x amination that (1) the witness is motivated to testify falsely or (2) her testimony is a rec ent fabrication. Id. Given that “judicial diverg ence of views is most vigor ous and t h e o p p o s ing rea sons most plausible” when applying these exceptions (4 J ohn H. Wigmore, Evidence § 1 1 2 6
, at 258 (Chadbourn r ev. ed. 1972) ), I beg in my analy sis with som e bac kg round on the e x ceptions.

¶ 27 1. Common L aw F oundation ¶ 28 I n 1 853, our supreme court acknow ledg ed that there was some authority that fo rm er statements of a

witness “may in some instances be introduced for the purpose of sustaining his t es t i m o n y ; as wher e he is c harg ed with te stifying under the influence of some motive pr ompting him
to make a false statement, i t may be shown that he made simil ar statements at a time when the imputed motive did not exis t, or when motives of interest would have induced h i m to make a differ ent statement of fac ts. So in contra diction of evidenc e tending to show that the wit ness’s account of the t ransa ction was a fabrica t i on of a rec ent date, it
may be shown that he g ave a simil ar acc ount befor e its eff ect and operation could be fore seen.” Gates v. Pe ople , 14 I ll. 433, 438 (1853). ¶ 29 In 1972, our supreme court restate d the rule direc ting that a witness’s prior c o n s i stent statement may

be admitted, notingthat to
“re but a charg e or an infere nce that the witness is motivated to testify falsely or that his testimony is o f re cent fabrication, evidenc e is admissible that he told the same story befor e the motive ca m e i n t o ex istence or befor e the time of the alleg ed fabrication.” People v . Clark, 52 I ll. 2d 374, 389 (1972). ¶ 30 Our supreme court’s decisions since Clark have stated two differ ent versions of the prior consis t en t s t at em ent exceptions. In People v. W illiams
, 147 I ll. 2d 173 (1991), the court stated in congruenc e with Clark that: “[P] rior consistent statem en t s are admissible to rebut a charg e or an infere nce that the witness is motivated to testify falsely or that hi s testimony is of recent fabrication, and such evidenc e is admissible to show that he told the same story befor e the motive came into exis tence or before the time ofthe alleged fabrication. ” (Emphasis added.) W illiams
, 147 I ll. 2d at 227. The W illiams decision g ave rise to a line of a ppellate de cisions that determined the re w ere two distinct exceptions to the prior consistent statement rule. See People v. Antczak
, 251 I ll. App. 3d 709, 714 (1993) (re cognizi ng that charg es of rec ent fabrication and motive to falsify

are two separ ate ex ceptions); People v. Lambert
, 288 I ll. App. 3d 450 (1997) (r eaffirming

-6-that charg es of rec ent fabrication and motive to testify falsely ar e s ep ar ate exceptions);

People v. Mullen
, 313 I ll. App. 3d 718 (2000) (cha rg es of rec ent fabrication and charg es of

a motive to testify falsely are separ ate exceptions to the rule which prohibits prior consistent statements); People v. Richardson
, 348 I ll. App. 3d 796 (2004) (ac knowledg ing that the prior consistent statement rule pr ovides for two se parate exceptions). ¶ 31 More rec ently
, our supreme court stated that “[a]n exception to this rule applies when it is sug g ested that the witness had rec ently fabricated the testimony or had a motive to testify falsely
, and the prior statement was made before the motive to fabricate arose .” (Emphasis added.) People v. Cuadrado
, 214 I ll. 2d 79, 90 (2005). In support of this version of the rule,

our supreme court cited its decision in People v. Heard
, 187 I ll. 2d 36 (1999), which stated

a simil ar, truncated version of the exception. The court in Heard
, in turn, relied upon its rulingfrom People v . Harris , 123 I ll. 2d 113 (1988), which state d:
“A narr ow exception to this rule has been cre ated wher e it is charg ed that the testimony is rec ently fabricated or that the wit ness has some motive for testifying falsely

. Then a prior consistent statement may be admitted
, but only if made befor e the motive to fabricate a

rose.” Harris , 123 I ll. 2d at 139.
Howeve r, Harris further

stated:
“In such an instance, proof that the witn es s g ave a simil ar acc ount of the occur renc e, when the motive t o lie was nonexis tent, or befor e the eff ect of the acc ount could be fore seen, makes the prior consistent st atement admissible.” Harris
, 123 I ll. 2d at 140 (also quoting an illust ration of the rule from Michae l H. Gra ham, Cleary and Gra

ham’s Handbook of

I llinois Evidence § 611.14 (4th ed. 1984))

. ¶ 32 I note that some of the ca s es d ec i d ed s i nce Clark abbre viated the prior consistent
statement exception, but did not reve rse or overr ule the court’s holding. Ex amining the Clark rule, I find that it s disjunctive languag e cre ated two separ ate exceptions to the prior consistent statement rule. See Clark
, 52 I ll. 2d at 389; see al s o W i lliams
, 147 I ll. 2d 173; Antczak
, 251 I ll. App. 3d 709; Lambert
, 288 I ll. App. 3d 450; Mullen
, 313 I ll. App. 3d 718; Richardson
, 348 I ll. App. 3d 796. T hus, I will r eview the application of both e x ceptions to the pre sent ca se.

¶ 33 2. Application of the Clark Rule ¶ 34 I beg in my analy s i s n o t i n g t h at t h er e m u st be an express or implied attack that the witness’s testimony is the result of a motive to f alsify or a rec ent fabrication. Belknap
, 396 I ll. App. 3d 183. Prior consistent statements are admitted solely for reha bilitative purposes, not as substantive evidenc e. Id.

¶ 35 a. Motive to Fa lsify ¶ 36 The re cord in the pr esent c ase indicates that the S tate cha rg ed at tria l that Amanda ha d

m o t i v at i on to falsify her testimony

. Initially
, I note that Amanda’ s alleg edly falsified testimony was elicited while s he was testifying as the S tate’s witness, and she was t re at ed

as a hostile witness. I ll. S. Ct. R. 238(b) (ef f. Apr. 11, 2001 ); R

. 4 3 3 (e ff. Apr. 1, 1982).

-7-Amanda denied participating in sexual misconduct with the victim and stated that she did not

o b serve the defe ndant sexually assault the victim. The State introduced Amanda’s p ri o r statements to the police, in which she implicated the defe ndant in the sexual misconduct. See People v. Leonard
, 391 I ll. App. 3d 9 2 6 (2 0 09) (a party may attack a hostile witness by impeaching her with evidenc e of a prior inconsistent statement). T h e State also adduce d testimony that Amanda w as married to the def endant a nd that she had c ommunicated with him one month befor e trial, implying that she had a motive to testify falsely to protec t the defe ndant. There fore
, I find that the State charg ed that Amanda was motivated to falsify her testimony

. ¶ 37 Howeve r, the mer e cha rg e or implication that Amanda was motivated to testify falsely is insufficient to justify the admission of her prior consistent statem ent. In order for Amanda’ s prior consistent statement to be admi t t ed, the defe ndant had to show that Amanda’ s consistent statement was made befor e the motive to falsify arose

. S ee A n t czak
, 251 I ll. App. 3d 709. The defenda nt is unable to show that Amanda did not have a m otive
to testify falsely when she initially denied the alleg ations to the police. Amanda was implicated in the felonious conduct, and she wa s m arried to the defe ndant. See People v. Terry
, 312 I ll. App. 3d 984 (2000) (witness’s prior consistent statements wer e inadmissible beca use they wer e not made until afte r he had been questioned by the police; beca use witness
may have been a suspect at that point, he had motive to testify falsely ). Therefor e, she had
at least two separ ate motivations to deny the charg es at the outset of the investigation. As a result, her statements from the beg inning of the police interview wer e inadmissible to rebut a cha rg e that she w as motivated to testify falsely

.

¶ 38 b. Rece nt Fabrication ¶ 39 Although the defe ndant argues that Amanda’ s prior consistent statement was a dmissibl e to rebut a charg e of rec ent fabri ca t i o n , I fi n d t hat the State did not levy a charg e of rec ent fabrication ag ainst Amanda. Gene rally
, a witness’s pri or consistent statement may be admitted to rebut an express or implied charg e that the witness’s tes t i m o n y wa s of rec ent fabri cation, so long as the witness told the same story befor e the time of the alleg ed fabrication. Lambert
, 288 I ll. App. 3d 450; 4 J ohn H. Wigmore, Evidence § 1129, at 270-71 (Chadbourn rev. ed. 1972) (“[t] he eff ect of the evidenc e of consistent statements is that the supposed fa ct of not speaking f ormerly , from which we are to inf er a rec ent contrivanc e of the story , is disposed of by denying it to be a fac t, inasmuch as the witness did speak and tell the same story”); Michael H. Gra ham, Graham’s Handbook of I llinois Evidence§ 801.12,
at 799 (10th ed. 2010) (“Charg es of improper m o t i v e, improper influence
, or rec ent fabrication are to be treated separ ately

. Acc ording ly
, a p ri o r co nsistent statement is admissible to rebut a charg e of rec ent fabrication even if the prior consistent statement is inadmissible to rebut a separ ate charg e of improper m o t i v e b ec ause the prior consistent
statement was made during the time the improper motive is alleg ed to ha ve exis ted.”)

. The “re cent fabrication” is the witness’s trial testimony

. People v. Deav ers , 220 I ll. App. 3d 1057, 1072 (1991). Howeve r, the mere fac t that a witness’s testimony has been discredited is not sufficie nt rea son to allow t he use of her prior consistent statemen t , and such an ex pansion of the exception would “s wallow the rule.” People v. W etzel
, 308 I ll. App. 3d 886, 895

-8-(1999). “I f t he only require ment nece ssary to trig g er the exception was the e x istence of an

inconsistent statement made prior to trial, the exception to the rule relating to the use of prior consistent statements would neg ate the rule in toto .” People v. Bobiek
, 271 I ll. App. 3d 239, 244 (1995). T h er efore, the rec ord must contain an appar ent charg e or sug g estion that the witness’s testimony was a rec ent fabrication. See, e.g. , W aller v. People
, 209 I ll. 284, 286-87 (1904) ( the def

ense impea ched a

witness with cer

tain former

narr ations of the witness that omitted an essential fac t, an d t h e S tate was proper ly allowed to prese nt rebuttal testim ony that the witness at the time of the occur renc e made a statement including that essential fac t; there was no claim that the witness made differ ent or contra dictory statements but only that he had rec ently fabricated the story ); see also P eo

p l e v. Engle
, 351 I ll. App. 3d 284, 289 (2004) (“[g ]enerally
, an infere nce that a witness’s in-court testimony is of rec ent fabrication arises from neg ative evidenc e that the witness did not speak of the matter at a time when it would have been natura l for him to do so”). Such a charg e was not prese nt in the instant case

. People v. Goff

, 299 I ll. App. 3d 944, 950-51 (1998); People v. W est , 263 I ll. App. 3d 1041, 1048 (1994); People v . Davis , 130 I ll. App. 3d 41, 56-57 (1984). ¶ 40 Although
, ap p ro p ri ately
, there was no jury instruction on the use of prior inconsistent
statements for only the limit ed purpose of deciding the weight to b e g iven to Amanda’ s testimony (see I llinois Pattern J ury Instructions, Criminal, No. 3.11 & Commi ttee Note (4th ed. 2000); I ll. R. Evid. 801(d)( 1)(A) (ef f. J an. 1, 2011)), th e p ri o r inconsistent statement evidenc e substantively serve d, i n p art, to show the inconsistency in her testimony

. See W etzel
, 308 I ll. Ap p

. 3 d 886. Contradiction alone cannot g ive rise to a charg e of rec ent fabrication or, as sug g ested by the W etzel and B o b iek decisions, the exception would swallow the rule. See W

est , 263 I ll. App. 3d at 1 0 4 8 ; s ee als o Moore v. Anchor Organization for Health Maintenance
, 284 I ll. App. 3d 874, 885 (1996). Although the trial court and the parties r efe renc ed this exception, the record does not contain an e x press or implied cha rg e that Amanda’ s testimony was a rec ent fabrication. There fore
, I conclude that Amanda’ s prior consistent statement wa s inadmissibl e under this ex ception.

¶ 41 B. Completene ss Doctrine ¶ 42 Next, the defe ndant argues that Amanda’ s statements deny ing the sexual assault cha

rg es

wer e admissible under the completene s s d octrine. The State argues that the defe ndant has waived revie w of this issue beca use h e d i d n o t raise it at trial. Howeve r, defe nse counsel
argued for admission of Amanda’ s prior consistent statement on g rounds that admission was

neces sary to show that she was not motivated to lie while testifying. Thus I find that the defe ndant has not waived revie w of this arg ument. See People v. Heider
, 231 I ll. 2d 1 (2008) (there was no forf

eiture wher e the trial court had an opportunity to revie w the claim that was later r aised on a

ppeal)

. ¶ 43 The completene ss doctrine provides that “ ‘ “if one party introduces part of an utteranc e

or writing the opposing party may introduce the rema inder or so much there of as is require d
to place that part orig inally offe red in proper context so that a corr ect and true m eaning is
conveyed to the jury .” ’ ” People v. Moore
, 2012 I L App (1st) 100857, ¶ 48 (quoting People

v. W illiams
, 109 I ll. 2d 327, 334 (1985), quoting Lawson v. G.D. Searle & Co.
, 64 I ll. 2d 543,

-9-556 (1976)); I l l

. R. Evid. 106 (ef f. J an. 1, 2011); see also Michae l H. Gra ham, Gra ham’s Handbook of I llinois Evidence § 106.1 (10th ed. 2010). The doctrine allows a party to place

a statement in context to aff ord the jury the means t o m ak e an i nformed assessment of its import. People v. Pietryzk, 153 I ll. App. 3d 428 (1987). The rema ining pa rt of the missing

rec ording is admissible only when in fairne ss it is require d to preve nt the jury from rec eiving

a misleading impression as to the nature of the introduced statement. People v. W eave r , 92 I ll. 2d 545 (198 2). However, the rema inder of the conversation or statement must conce rn what was said on the same subject at the same t i m e. P eo p l e v. Patterson
, 154 I ll. 2d 414 (1992). ¶ 44 An al o go u s l y , wh en a witness’s prior inconsistent statement is introduced, the two exceptions discussed supra permit the introduction of the rema inder of a statement to prove, explain, or qualify the making of the inconsistent statement. People v. W illiams
, 147 I ll. 2d 173 (1991); Mi chae l H. Gra ham, Gra ham’s Ha ndbook of I llinois Evidence § 801.12 (10th ed. 2010). Admission of a prior statement under this rule is “ subject to the require ments of rele vance and materia lity .” People v. Harris
, 123 I ll. 2d 113, 142 (1988). Whil e an additional part of a written or rec orded admission of a criminal defe ndant that explain s , qu alifies, or otherwise sheds light upon that portion of the acc used’s statement offe red by the prosec ution would satisfy the completene ss doctrine, a separ ate statement, written or rec orded, made by
t h e cr iminal defe ndant denying the events acknow ledg ed in the statements offe red by the
prosec ution would be inadmissible. Michae l H. Gra ham, Gra ham’s Handbook of I llinois Evidence § 106.1 (10th ed. 2010). ¶ 45 In the instant case , Amanda’ s statements from the beg inning of the police interview w ere inadmissible under the completene ss doctrine. At the start of the interview, Amanda denied seeing the defe ndant eng ag e in se x ual misconduct with the victim. After a pproxi mately 33 minutes, Amanda stated that she saw the defe ndant sexually assault the victim and that she participated in some of t he ac ts. Amanda’s state ments from the be g inning of the interview do not explain why she later d en i ed the alleg ations, or qualify her later statements; they

mere ly contra dict the prior inconsistent statement admitted into evidenc e by the State. See W etzel
, 308 I ll. App. 3d 886; see also People v . Steffens , 131 I ll. App. 3d 141, 147 (1985). Consequently
, Amanda’ s initial statements wer e inadmissible under the completene ss doctrine.

¶ 46 I I . $500 Fine ¶ 47 The defe ndant arg ues that the trial court err ed when it imposed a $500 fine, pursuant to section 5-9-1.15 of the Code, beca use the statute did not g o into eff ect until afte r his arr est. 730 I L CS 5/ 5-9-1.15 ( West 2008). The State agree s. ¶ 48 The United States Constitution prohibits both Congr ess (U.S. Const., art. I
, § 9) and the
states (U.S. Const., art. I , § 10) fr om enac ting ex post facto laws. People v . Prince
, 371 I ll. App. 3d 878 (2007). Simi larly
, the I llinois Constitution forbids the enac tment of ex post facto laws. I ll. Const. 1970, art. I
, § 16. Th i s p rohibition applies only to laws that are punitive. People v . Dalton , 406 I ll. App. 3d 158 (2010). ¶ 49 We find that imposit ion of the section 5-9-1.15 fi n e violated ex post facto principles.

-10-Section 5-9-1.15 of the Code we n t i n to eff ect on J une 1, 2008, and the instant offe nses

occur red no l ater than Fe bruar y 2008, when the defe ndant was arr ested on an unrelated offe nse. Ther efor e, we vaca te the def endant’ s $500 fine.

¶ 50 CONCLUSI ON ¶ 51 For the fore g oing rea sons, the judgme nt of th e ci rc u i t co u rt o f Kankakee County is aff irmed with the sole exception of the de fenda nt’s $500 fine, whic h is vacated.

¶ 52 Affir

med in part a

nd vacated in part.

¶ 53 J USTI CE SC HMI DT, spec ially concur ring

. ¶ 54 I co n cur in the result. I do not concur with the author’s analy sis with respe ct t o ei t h er admission of prior consistent statements or the completene ss doctrine. Amanda clea rly had
a mot ive t o lie when she s p oke with police. The beg inning of the i nterview there fore does
not qualify as an admissible prior consist en t statement. The trial court did not err in excluding the e vidence

.

¶ 55 Prior Consist ent Statements ¶ 56 I part company with the author beg inning at para graph 32. J ustice Carter puts forwa rd the proposition that our supreme court has in case s such as Cuadrado
, 214 I ll. 2d 79, incorre ctly stated the law reg arding prior consistent statements. In Cuadrado
, ref erring to admissibili ty of prior consistent statements, the supreme court stated that they are admissible “whe n it is
sug g ested that the witness had rec ently fabricated the testimony or had a motive t o t es t i fy falsely , and the pr ior statement wa s made be fore the motive to fabric ate a rose.” Id. at 90. ¶ 57 The author picks Clark out of a lineup of supreme court case s on the issue and, through

a misreading of Clark and other supreme court case s, cre ates what he calls the “ Clark rule.” Supra ¶ 32. I respe ctfully submit that the author rea ds things into Clark that simply are not there

. The author, in his postmortem of the Clark decision, slices and dices the languag e and finds that the supreme court in Clark cre ated two separ ate exceptions to the prior consistent
statement rule. Id. Whil e examining Clark
, the author co ncludes that he has discovere d Clark ’s holding by virtue of the disjunctive languag e, presumably by the use of the word “or”
t wi ce. Supra ¶¶ 29, 32. The trouble with this detailed dissection of Clark is t h at i t i s compar able to an autopsy that identifies the cause of death as corona ry arte ry disease while ignoring the fac t that the dece dent had been deca pitated. Immediately afte r the languag e cited in para g raph 29, the Clark court said, “The statement that Cleo Wil liams made to the police office rs on J anuar

y 3, 1 9 6 8
, d o es not come within the last stated exc eption

. It was made several we ek s af

t er the killing and afte r the defe ndant had been identified in a lineup by witnesses t o the ki lling. Eve ry moti ve for fabricating a f a l s e statement existed on January 3, 1968
, that ex isted at the time of the trial.” (Emphase s added.) Clark
, 52 I ll. 2d at 389. There fore
, it seems cl ea r t h at even the supreme court was unawa re it was cre ating two separ ate exceptions as sug g ested by the author. After stating the rule, the court ref err ed to the

-11-last stated “exception,” not “exceptions.” Id. Then, it simply looked to whether the witness

had a motive to lie at t he ti me of the proffere d prior consistent statement. The court found motive. There fore , the cour t held that the trial cour

t did not err in excluding the statement. Clark
, 52 I ll. 2d at 389-90. I submit that there are not two distinct exceptions and never have been. T he supre me cour

t has neve r said ther e ar e two distinct exceptions. ¶ 58 First of a ll, the “ first” exception r elates to a charg e that not only is a witness motivated to testify falsely , but has testified fa lsely . That is, a prior c onsistent statement would never

come in unless there was a charg e that the witness’s trial testimony was intentionally false. What is intentionally false testimony ? It is a fabrication. I f no one sug g ests that a witness’s trial testimony is false, what possible differ ence could it make whethe r t h e wi t ness had a motive to lie? People often tell the truth, eve n when motivated to lie. For example, a confe ssion. We would, there fore
, never g et to the issue of motive to lie at the time of a prior consistent statement. Th e i s s u e o nly arises afte r a witness is impeache d with evidenc e sug g estingthat the witness lied on the stand. ¶ 59 In this case , Amanda tes t i fi ed th at s he neither participa ted in the sexual assault of the victim nor o b s er v ed defe ndant assault the victim. The State introduced a videotape of Amanda des cr i b ing incidents when she witnessed and participated i n the s exual assault of the child. Implicit in the impeachme nt t estimony is that Amanda was lying when she testified. Clearly
, as the author points out, Amanda had motive to lie. As someone not only marrie d to the defe ndant, but a lso as someone who participated in the crimes, Amanda had a motive to lie from the moment the c rimes occ urre d. ¶ 60 In my opinion, the author actua lly illust rate s why the two-exception theory fails when he tries t o addre ss the evidence under what he calls the “rece nt fabrication” exception. Supra ¶ 39. The “re cent fabrication” is the witness’s trial testimony

. Id. The author nece ssarily g oes

on to ma ke statements that defy rea lity in r efe renc e to the require ment that the rec ord must make it rea dily appar ent that the witness’s trial testimony was a rec ent fabr i ca tion. The author states, “[s] uch a charg e was not prese nt in the instant case .” Id. “[T] he rec ord does not contain an express or implied charg e that Amanda’ s testimony was a re cent fabrication.” Supra ¶ 40. Of course it does! Quer y : What other conclusion could any rea sonable juror draw from watching the videotape of Amanda’ s confe ssion other than, “the Stat e wa n t s me to believe that Amanda wa s l y i n g when she testified that it did not happen” ? Impeac hment evidenc e in this case pointed to the inesca pable charg e that Amanda’ s trial testimony was a

rec ent fabrication. I f the rule is a s the author describes, then the prior consistent statements

wer e admissi ble. To avoid t his result, whil e at the s ame tim e st anding bythe two-distinctexceptions analy sis, the author states that the rec ord does not support a charg e that Amanda’ s trial testimony was a rec ent fabrication. For rea sons I have set forth, I believe that this is not healthy

. When judge s are require d to say things that defy common understanding in order to achie ve a result, the sy stem suffe rs. The author cannot have it both way s. I f the law is what h e and Gra

ham (Michae l H. Gra

ham, Gra ham’s Handbook of I llinois Evidence (10th ed. 2010)) (her einaf

ter Gra ham) say it is, then the pri o r co n s i stent statements come in, notwithstanding the motive to lie. ¶ 61 An o t h er ex am p l e as to why the author’s attempt to fashion a “re cent f ab ri ca t i o n ” exception simply will not work is by yet another examination of paragraph 39. The author

-12-states that the “prior consistent statement may be admitted to rebut an express or implied

charg e that the witness’s testimony was of rec ent fabrication, so long as the witness told the

same story before the time of the alleged fabrication .” (Emphasis added.) Supra ¶ 39. In the
next sentenc e, t he author points out that the rec ent fabrication is the “ witness’s trial testimony .” (Emphasis added.) Id. I f the rec en t fabrication is the trial testimony
, which it clea rly is, and if this rec ent fabrication exception allows prior consistent statements so long

as they wer e made “bef

ore the time of the alleg ed fabrication,” then any consistent statement made by the witness befor e taking the stand would be admissible. Notwithstanding the appellate court cases and Gra ham s ug g esting o t h erw ise, we alway s look (and have alway s looked) to whether the witness had a motive to lie at the time of the proff ere d prior consistent
statement. What is a “fa

brica tion”? It is a lie. People lie for a rea son (motive). No one ever talks about what “re cent” means in “re cent fabrication.” I submit it does not matter whether it is rec ent or old. In this context, “rece n t ” ca n o n l y mean afte r the development of some motive to lie which might be at any time befor e the witness takes the s t and and, if one is involved in a cr ime, probably at the moment of the c rime. ¶ 62 The author cites Lambert
, 288 I ll. App. 3d 450, and section 801.12 of Gra ham in suppor

t of the dual-prong test. The author co rr ec t l y quotes Gra ham, which posits that, “ ‘a prior consistent statement is admissible t o rebut a charg e of rec ent fabrication even if the prior consistent statement is ina dmissibl e to r ebut a separ ate charg e of improper motive beca use the prior consistent statement wa s m ad e during the t ime the i mproper motive is alleg ed to have exis ted.’ ” Supra ¶ 39 (quoting Gra ham, supra , at 799). I rea liz e that many consider Gra ham the “bible” of I llinois evidenc e. Howeve r, as Ira Ger shwin observe d, “thing s you are liable t o rea d in the bible, it ain’t necessarily so.” Graham cites People v. Antczak
, 251 I ll. App. 3d 709 (1993), Lambert
, 288 I ll. App. 3d 450, and People v. Richardson
, 348 I ll. App. 3d 796 (2004), in support of this statement. Lambert and Richardson , in tur

n, cite Gra

ham for this proposition of law. It appea rs that Antczak was one of the first, if not the first, case s to come up with what the a uthor has labe led the “ Clark rule.” ¶ 63 The Antczak court and the author make the same mistake. Antczak cited the disjunctive languag e in W

illiams (identica l to that in Clark ) in support of the proposition that motive to testify falsely and rec en t fab ri ca tion are two distinct exceptions to the rule ag ainst the admission of prior co n s i stent statements. Antczak
, 251 I ll. App. 3d at 715-16. Howeve r, I believe that Antczak ignor ed what the supreme court did in W illiams
, 147 I ll. 2d 173. In W illiams
, the court dealt with the admissibili ty of a witness’s grand jury testimony as a prior consistent statement. The c ourt noted: “Clear ly
, the defense raised an infere nce that Gra y ’s t rial t estimony was mot ivated b y expectations of leniency and was of rec ent fabrication. Yet, defe ndant claims t h at Gra y ’s 1978 g rand jury testimony did not qualify as a prior consistent statement beca use Gra y had the same motive to fabricate at that time as she did at trial. (See P eo p l e v. Emerson [, 97 I ll. 2d 487, 501 (1983)].) Acc ording to defe nd an t , Gra y must have considere d, in 1978, that, give n the conduc t of police and prosec utors towards her, her best strategy was to cooper ate with the authorities by fabricating a version of events. We reje cted a simil ar argument upon a simil ar series of fac ts in [ People v. Titone
, 115 I ll. 2d 413, 423 (1986)], and held that the trial court’s appar ent conclusion was supported by the

-13-rec ord and was proper

. L ikewise, in the instant case , we cannot say that t h e trial court

err ed by admitting Gr ay ’s grand jury testimony .” W

illiams , 147 I ll. 2d at 227-28.
One cannot deciphe r the basis for the supreme court’s holding in W illiams on the issue without turning to Titone

. ¶ 64 In Titone
, un d er virtually identical facts as in W illiams
, the s upreme court cited Clark
, including the disjunctive languag e, then conclude d, “[t] he circ uit court, i n admi tting the statement, appar ently conclud ed that the motive for fabrication did not exis t when the
statement was made. On this rec ord we are unable to say that in admitting the statement the
court err ed. People v. Emerson [, 97 I ll. 2d 487, 501 (1983)]; Lyon v. Oliver [, 316 I ll. 2d 292, 303 (1925)].” People v. Titone
, 115 I ll. 2d at 423. That is, in W i l l i a ms an d T

itone
, the
supreme court aff

irmed the admission of prior consistent statements on the basis of what it
perc eived as finding s by the trial court that the prior consistent statements wer e made at a time when a motive for fabrication did not exis t

. W illiams simply does not support the analy sis in Antczak

. Nonethele s s , Gr ah am appar ently hitched its wag on to Antczak and, without any

supreme c ourt authority for the proposition, takes the view of the a uthor here

. Shortly afte r Lambert
, a panel of the First District appellate court in People v. Grisset
, 288 I ll. App. 3d 620 (1997), reje cted Antczak

. Grisset
, 288 I ll. App. 3d at 626-27. Gra ham is of the opinion that Grisset was “incor rec tly decide d.” Gra

ham, supra , at 799. I submit that until the supreme court say s otherwise, Gra ham is wrong and it is Antczak th at was incorre ctly decide d. The test applied by the supreme court, notwithstanding loose languag e describing the test, has alway s been: I s there a sug g estion that the witness lied and, if so, was the prior consistent statement made befor e a motive to lie arose ? This is a straightforwa rd rule that for

some rea son has g ener ated a diverg ence of opinions. In my opinion, this is not a g ood thing. L awyers, trial judge s and appellate judge s n ee d t o know what the rules are

. Whether I am right or wrong , I believe that it is time for the supreme court to put this issue to rest in plain Eng lish. Whether and how a witness can be reha bilitated afte r impeachme nt sug g esting the witness lied (fa

brica ted) is a rec urring and important issue in trials, espec ially criminal trials. The resolution of the issue should not depend upon theschool of thought of either the trial judge or the majority

of an a ppellate pa

nel.

¶ 65 Completeness Doctrine ¶ 66 The defe ndant did not arg ue b el o w th at t h e alleg ed prior consistent statements wer e admissible under the completene s s doctrine. Whil e I agree with the result rea ched by the author, I would not rea ch the merits of defe ndant’s argument. T h e issue was forf eited by defe ndant’s failure to make that argument below. People v. Macri
, 185 I ll. 2d 1 (1998); People v . Miller , 173 I ll. 2d 167 (1996); People v . Hillier , 237 I ll. 2d 539 (2010). ¶ 67 As an aside, afte r revie wing the entire videotape, I am left wonder ing why the State even objected to the admission of t h e en t ire videotape, or why the State did not offe r the entire videotape to beg in with. There is simply nothing in there of help to defe ndant. Any err or was harmless be yond a re asonable doubt.

-14-¶ 68 J USTI CE HOL DRI DGE, spec ially concur ring

. ¶ 69 I concur in the judgme nt aff irming the conviction and senten ce imposed by the circ uit
court of Kanka

kee County wit h t h e s o l e exception of vacating the $500 fine. I write
separ ately beca

use, unlike both my co l l eagues, I would find that the excluded statements

wer e admissible under the completene ss doctr i n e, an d the trial court err ed in denying the defe ndant’s attempt to enter the full videotape of the police interview of Amanda. I would find, howeve r, that the error in excluding those statements was harmless beyond a rea sonable doubt. ¶ 70 “The completene ss doctrine is an exception to the hear say rule and provides that a party may introduce the balanc e of an *** oral statement that has been introduced by an opponent for the purpose of explaining, qualifying, or otherwise shedding light on the statement.” People v. Brown
, 249 I ll. App. 3d 986, 990 (1993). The completene ss doctrine applies if the

conver sation admi tted into evidenc e was part of the same conver sation that the opposing party is attempting to int ro du ce u n d er the completeness doctrine. Id. Where a portion of a

conver sation is related by a witness, the opposingparty has the right to bring out all of t he

conver sation. People v. W eave r , 92 I ll. 2d 545, 556-57 (1982). This doctrine is g rounded in the g ener al evidentiar

y principle that “if one party introduces part of an utteranc e or writing
t he opposi ng party may introduce the rema inder or so much t here of as is require d to place that part orig inally offe red in proper context so that a corr ect and true meaning is conveyed
to the jury .” (Interna l quotation marks omitted.) People v. W illiams
, 109 I ll. 2d 327, 334 (1985). ¶ 71 Her e, the State was permitted to bri n g o u t Am an d a’ s s t at ements during the police interview in which she stated that she had witnessed the defen dant eng ag ed in sexual activities with the victim. This evidenc e was admitted in the form of videotape excerpts from

a police interview lasting approximately one hour. Howeve r, when defe nse counsel soug ht
to a dmit the videotape of the entire interview in order to place the statements in the State’s evidenc e into context, the State’s objection was sustained. I would find that the videotape of Amanda’ s statements to the police i n th e s ame interview should have been admitted into evidenc e. Those statements would have established t he contex t of the statements the State wanted the jury to hear an d would have qualified those statements in the context of Amanda’ s overa ll cre dibilit y

. The failure to admit the videotape of the entire interview was clea rly err or, and the defe nse should have been allowed to prese nt that evidenc e. Moreove r, beca use the evidenc e was ad m i ssible under the completene ss doctrine, it was admissible
reg ardle ss of the fac t that it was also a prior consistent statement. See id. at 335; W eave r , 92 I ll. 2d at 556. I there fore do not agree with the analy sis that the statements wer e inadmissible

as prior consistent statements. The intent of the completene ss d o ctrine is to make sure all materia l statements are place d befor e the jury so that it will have the complete context of the
statements enter ed into evidenc e. ¶ 72 Having found that the trial court err ed in not admitting a comp l et e co n t ex t o f h er statements contained in the single interview
, I would nonetheless aff irm the defe ndant’s conviction. It is well settled that wher e a t rial court’s err or is not structura l, i.e.
, a serious denial of a cons t i tu t ional right, such err ors do not require a reve rsal of a defe ndant’s conviction. People v. Ave rett , 237 I ll. 2d 1, 14 (2010). Moreove r, wher e a defe ndant’s guilt

-15-is overwhelming, a single erroneous evidentiar y ruling
, likewise, does not war rant reve rsal. See P eo p l e v. Rivera
, 227 I ll. 2d 1, 26-27 (2007). Her e, not only was the evidenc e aga inst the defendant overwhelming
, I agree with the observation that, had the entire videotape of Amanda’ s interview been admitted, there was nothing there that would have been of help to the defe ndant. Whil e Amanda’ s statements wou l d h ave been rele vant to her cre dibilit y , it
cannot be said that her entire statement to the police during the interview would have cause d the jury to assess her

cre dibilit y

differ ently

. ¶ 73 For the fore g oing rea sons only
, I would aff irm the trial court’s judgme nt of conviction.

-16-