## 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 . Perez , 2012 IL App (2d) 100865

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. J ESUS R. P EREZ , Def

endant- Appellant.

District & N o. Second District Docke t No. 2-10-0865

Filed May 8, 2012

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 convictions for ag g ravated cr i m i nal sexual abuse wer e aff irmed, wher e the issues wer e not complex and the other-c rimes evidenc e that was a d

mi tt e d w as more probative than prejudicia l, provided context for the charg es, was not unduly inflammatory or excessive, a

nd

was admissible under section 115-7.3 of the Code of Criminal Procedur e without limit ation, the trial court instructed the jury befor e deliberations that the other-c rimes evidenc e could be considere d only for limit ed
purposes, the jury wa s adequa tely apprised of the differ ence betwee n char g ed and unchar g ed conduct, and defe nse counsel’s conduct was not objectively

unrea sonable.

Dec ision Under Review Appea l from the Circuit Court of L ake County
, No. 08-CF- 630; the Hon. Theodore S. Pot konjak, J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l Thomas A. L ilien and Kathlee n J

. Hamill, both of State Appellate Def ender ’s Off

ice, of Elg in, for appe llant.

Michae l J . Waller, State’s Attorney , of W aukeg an (L awr ence M. Ba uer and Mary Be th Bur

ns, both of State’s Att orney s Appellate Prosecutor’s Offic e, of c ounsel), for

the People.

Panel PRES I DI NG J USTI C E J ORGENSEN delivere d the judgme nt of the court, with opinion.
J ustice Hudson conc urre d in the judgme nt and opinion.
J ustice McL are n specia lly concur red, w ith opinion.

OP INION

¶ 1 Def

endant, J esus R. Perez, appea ls his convictions of ag g ravated criminal sexual abuse (720 I L CS 5/12-16(c) (1)( i), (ii) (W est 2008)) r el at ed to victim S.C. Def endant argues t hat the trial cour

t permitted, under se ction 115-7.3 of the Code of Criminal Proc edure of 1963 (Code) (725 I L CS 5/115-7.3 (West 2008)), excessive other-c rimes evidenc e to be introduced
at trial. Fur

ther, defe ndant argues that inadequate limit ing instructions, jury instructions, and verdic t forms rende red the jury verdic t unreliable in that it was potentially based on evidenc e of unchar g ed conduct. Alternatively
, def en dant argues that his trial attorney provided ineffe ctive assistance wher e he failed to reque st limit ing instructions when the other-c rimes evidenc e was introduced at trial, and wher e he failed to reque st jury instructions and verdic t forms that distinguished betwee n char g ed and unchar g ed conduct. For the following rea sons,

we a ffirm.

¶ 2 I . BA CKGROUND ¶ 3 A. Pretrial Ruling s ¶ 4 On October 22, 2008, the State char g ed defe ndant with fo u r co u n t s o f aggra vated criminal sexual abuse; two char g es perta ined to alleg ed victim S.C., and two char g es perta ined to alleg ed victim D.W. As to S.C., the indictment char g ed that, on or befor e J une 1, 2006, and November 30, 2007, defe ndant, ag e 17 or older, committed ag g ravated criminal sexual abuse ag ainst S.C., who was under ag e 13, i n that he, for purposes of sexual
g ratification: (1) “fondle d the brea sts”; and (2) “pushed his penis ag ainst the buttocks” of S.C. On May 28, 2009, the court g rante d defe ndant’s motion to sever defe ndant’s trials, with one trial a s to eac h victim. ¶ 5 On September 9
, 2 0 0 9
, the trial court (Judge J ohn T. Phill ips) hear d argument on the

-2-State’s m otion in limine to introduce othe r-c rimes evidenc e pursua nt to section 115-7.3 of the C o d e. S p ec ifically
, in addition to the char g ed acts ag ainst S.C., the State wished to

1
prese nt e vidence of other acts that defe ndant alleg edly perpe trated ag ainst her. Fur ther, the State wished to introduce evidenc e reg arding the acts that defe ndant alleg edly perpe trated
ag ai n st D.W. Over defe ndant’s undue-pr ejudice objection, the court g rante d the State’s motion. Specifica lly
, the court, discussing rele vant case law ( People v. Donoho
, 204 I ll. 2d 159 (2003); People v. Cardamone
, 381 I ll. App. 3d 462 (2008))
, and s t at i n g t hat it had weighed the evidenc e’s probative value ag ainst its prejudicia l eff ect, deter mined t h at the
statute and case law permitted introduction of t h e evidenc e. The court ref used to place a “fa lse limit ation” on the ev i d en ce, but it instructed the State to “talk about your best three

or pick your best four, and I believe that the case law is such that surrounding circ umstances do in fac t become rele vant.” The court instructed the parties to prepa re arguments reg arding the necessity
, if any , of l imiti ng instructions; the court stated t h at i t wished t o be prepare d
to issue, if nece ssary , sua sponte limit ing instructions when the evidenc e was introduced at trial.

¶ 6 B. Tr ial ¶ 7 On M ay 24, 2010, trial commence d befor e a differ ent judge (J u d ge T h eo d o re S

. Potkonjak). During voir dire
, the court informed potential jurors that defe ndant was char g ed

2 with ag g rava

ted criminal sexual abuse that occur red on or befor e J une 1, 2006, and January 20, 2007 (a date differ ent from that listed in the indictment, but which ref lects the date that S.C. turned ag e 13). After the j ury was selected, t h e fo l l o wing colloquy occur red betwee n the cour t and def ense c ounsel:
“C OUNSEL : J udg e, prior to jury selec tion you didn’t rea d them the indictment. I
presume you are g oing to do that be fore you swea r them in.
THE COURT: Iam not g oing to r ead the m the indictment.
COUNSEL : J udg e, we are g oing to ask that the indictment be re ad to them befor e hear ing evidenc e. We are g oing to g ive ref ere nce to the charg es in our opening statement. I f they don’t have it–haven’t he ard what the ac tual char g es ar e– THE COURT: They are not g oing to be rea d the indictment. They will never be rea d the indictment.
C OUNSEL : J ust let the rec ord ref lect that we reque st that the jury be re ad t h e

Se c t i o n 1 1 5

- 7.3 of the Code pro vides tha t, when a def end ant is acc use d of agg ra vated 1

cr iminal se xua l abus e, evidenc e of the def end ant ’s comm is si on of anot her sex ual off ens e “m ay be admissi ble (i f tha t eviden ce is oth erwis e admissi ble unde r t h e rul es of eviden ce) and m ay be

con si der ed for it s bea ri ng on any matt er to whic h it is re le vant.” (Emphasi s add ed.) 725 I LCS 5/1 15- 7.3( a) (1) , (b ) ( We st200 6).

I t doe s not app ear fr om the re cor d tha t th e p a r ti es ever bri ef ed or ar gued, bef

ore ei the r 2 j udge, t he n ece ssi ty, if

any, of li m it ing in st ruc ti ons

.

-3-indictment.” 3

L ater , the court simil arly ruled that, beca use t he jury would be instructed on the l aw at the end of trial, defe nse counsel was not pe rmitted to r ead the indictment to the jury during his openingstatement. ¶ 8 In opening statements, the State discussed the evidenc e the jury would hear but did not distingui sh the acts that formed the basis of the char g es from the other-c rimes evidenc e. Simi larly
, defe nse counsel d i d not state what specific acts defe ndant was char g ed with committing; howeve r, he did inform t he j u ry that the t rial and the evidence pertained only to S.C ., not D.W. ¶ 9 S.C. (ag e 16 at trial) testified that she was born on J anuar y 20, 1994. She lives with he r pare nts and siblings, including her mother, Gra ce, and h er b rot her, Errol (who is one y ear older than S.C.). In addition, S.C. has an older si s ter, J osephine (ag e 33), who resides in another home. D.W

. is J osephine’s daug hter (in other wo rd s , S .C. is D.W.’s aunt). S .C. is three y ear s older than D.W., and the g irls are close friends. After a divorce
, J osephine and defe ndant enter ed into a relationship. S.C. believ ed t h at s he was eig ht y ear s old when J osephine and defe ndant beg an dating

. S.C. h ad co n tact with defe ndant at various family events, including barbe cues and family vacations. Def endant often purcha sed g ifts for S.C.

on vacations or at amusement pa rks; S.C. vi ewe d him like a brother. ¶ 10 In the summer of 2006, when S

. C

. wa s 1 2 y ear s old, her relationship with defe ndant chang ed. When on a trip to Silver L ake, Wis consin, defe ndant pulled S.C. into the water , to

a depth wher e she could not stand, put his arms around her chest from behind and rubbed her brea sts with his hands. This occur red more than five times. Errol was near by
, but the water

was murky and one could not see through it. S.C . swam aw ay and g ot out of the wate r. On their way home from the trip, when Errol was aslee p in the passeng er seat and D.W. was

as l eep on S.C.’s lap, defe ndant asked S.C. if the way he was touching her made her fe el uncomforta

ble. She told him that itdid. He told her that he would stop. ¶ 11 In the summer of 2006, S.C. often stay ed overnight at J osephine’s house; she would sleep in D.W.’s room, and she a nd D.W. shared D.W.’s bed. When Josephine was showering or sleeping
, defe ndant would enter D.W.’s room. On more than 10 occa sions, defe ndant g ot on the edg e of the bed behind S.C. and p ut his hands on her brea sts, sometimes under her pajama top and sometimes over it

. I n addition, eac h time he g ot into the bed, defe ndant would lie down behind S.C. and place his penis are a in contac t with her bottom. S.C. testified that she usually tried to prete nd that she was sleeping
, thinking that defe ndant would leave

. A couple of times, S.C. tried to pull her self aw ay or push def

endant awa

y

. S.C. did not sa

y any thing to defe ndant when he touched her. S.C. did not, when it happene d, tell an adult about defe ndant touching her, beca use she was scar ed that no one would believe her. She did discuss it with D.W. S

. C

. testified that she continued to g o to J osephine’s house, despite defe ndant’s behavior
, so that she could prot ect D.W. S.C. estimated that she slept at

T he re cor d re fl ect s tha t def ens e cou nse l want ed the ind ic tment re ad so as to inf orm the j ury 3 tha t, to con vict def

end ant , the eviden ce woul d have to sho w beyond a re as o n a b l e d o u b t tha t def end ant to uch ed S .C. f

or the purpos e of

se xua l gra ti fi cat ion

.
-4-J osephine’s “whene ver [ D.W.] was there” and t hat defendant would touch her brea sts and

put his penis near he r bottom “most every time.” ¶ 12 S.C. testified t hat there wer e also a “couple ” of tim es that s he came home from school and defe ndant was waiting in her drivewa y

. S.C. testified that she was still ag e 12 at the time, but, at other points in the rec ord, it appea rs that the afte r-sc hool incidents occur red in the fall of 2007, when S.C. was over ag e 13. S.C. testifi ed that she was the first person to return home at the end of a school day ; her pare nts wer e at work, and Errol either would be on the bus on his way home or still at s chool. S .C. testifi ed t h at s he would g o inside and int o her
room, and defe ndant would usually follow her. On one occa sion, S.C. returne d home and was alre ady inside the house when defe ndant arr ived and kept knocking on the door, calling her

name and her phone, saying “I know you’re in there ” and “open the door.” S.C. did not open the door, bu t s h e ra n fr o m her room into the bathroom and closed the door so that no one could see her. S.C. testified that defe ndant likely called J osephine, beca us e J o s ephine telephoned S.C.’s mother and her mother then telephoned to y ell at her, telling S.C. to open the door and to stop acting like a “brat.” When Errol arr ived home, he opened the door and defe ndant enter ed the house. Def endant came to S.C.’s room and sat next to her. When Errol passed by the room, defe ndant left and Errol made defe ndant a compa ct d i s c (C D). Def endant returne d to S.C.’s room. He sat next to her on the bed and tried hug g ing her and kissing her on the chee k. Errol was prese nt an d
, acc ording to S.C., Errol thought that defe ndant was just trying to wre stle “or something.” S.C

. pushed defendant a wa y , an d the CD cra cked. Def

endant “g ot mad and they took it as just me being a brat ag ain.” Def endant left. ¶ 13 In October 2007, as guests wer e beg inning to leave a family dinner at S.C.’s house, S.C.
went t o the baseme nt to iron clothes. Def endant went to the baseme nt to say g oodby e. He

came up behind S.C., pushed his penis ag ainst her bottom, and wra pped his arms around her stomach. Def

endant was in that position for approximately 10 seconds. She agree d that she orig inally told the police that this incident occur red on N ovember

15, 2007. ¶ 14 Gra ce saw something happen betwee n S.C. and defe ndant in the baseme nt, and she aske d S.C. about it. On cross-e x amination, S.C. testified that Gra ce did not like the way defe ndant was hug g ing S.C. and ha d asked whether defe ndant had done any thing other

than hugher; S.C. replied t hat the only thing that occur red was hug g ing. She did not immediately tell Gra ce what defe ndant had done, beca use she was scar ed that she would not be believed. On

more than one occa sion, Gra ce asked S.C. about defe ndant g oing to the baseme nt, but S.C. kept telling her that nothing happene d. Gr ac e stopped asking for awhile, but, on Thanksg iving Day in 2007, S.C. raised the subject with Gra ce and told her that defe ndant had
actua lly gra b bed her brea sts. She did not, howeve r, say any thing about defe ndant pressing his private parts ag ainst h er

. Gr ac e fell on her knees, was cry ing and trying to assure S.C. (who was also cry

ing) that ever

y thing would be all rig ht, and went to the bathroom to throw up. A fe w day s later, S.C., D.W., Grace , and Josephine discussed defe ndant’s conduc t. ¶ 15 On Dec ember 3, 2007, S.C. complained to the police. In a written statement, S.C. did not mention that, when she slept with D.W. at J osephine’s house, defe ndant g ot into the bed and
presse d his penis to her bottom

. Fur ther, she agree d that in her written and ora l statements
to police she re fer

red to defe ndant’s “cr otch are a” and her own “bac k,” as opposed to

-5-defe ndant’s “penis” and her “butt,” and, further, t h at she descr ibed defe ndant’s contac t as

“hug g ing.” S.C. t estified that, while s he tol d the t ruth in her written statement, she did not provi d e ever

y detail of ever

y touching

. S.C. agree d that she spoke with Detec tive Sabas Merc ado on Dec ember 13, 2007, and she told him that she had known de fenda nt for more than s ix y ear s, had a grea t relationship with him, and considered h i m t o b e a brother. S .C. told Merc ado that, on about 18 occas i o n s when defe ndant climbed into bed with her, his
crotc h reg ion made contac t with he r back and “butt” are a. She agree d that, when defe ndant thrust his front into her back, she never felt his penis, but she clarified that, in her mind, his “cr otch are a” is his “penis are a” and, by not fee ling his penis, she meant that the are a, when
presse d ag ainst her, f

elt soft, not hard. ¶ 16 Acc ording to S.C., no one told he r what to sa y or to make any

thing up to g et defe ndant in trouble, nor was her testimony the result of her being mad at defe ndant for any thing. She had bee n told only

to tell the truth. ¶ 17 Errol testified that, on one trip to Silver L ake (the specific date of which he could n o t

rec all), he, defe ndant, S.C., and D.W. we re swimming in the lake. He descr ibed the lake as having murky water and gra dually rea ching around 15 fee t in depth. Errol testified t h at he watche d defe ndant playing with S.C. in water that was approximately six or seven fee t deep (he estimated that S.C. was just over five fee t tall). I t looked like they wer e “horsing around,” i.e.
, playing and dunki ng , with defe ndant gra bbing S.C

. and throwing h er under water and S.C. coming back to the surfa ce. Errol could not see whether defe ndant’s hands made contac t with S.C.’s body

. Acc ording to Errol, after some time, S.C.’s fac ial expressions ref lected irritation, and she g ot out of the water and sat by herse lf on a picnic b en ch. Errol saw defe ndant and S.C. have a conver sation after

she left the w ater

. ¶ 18 Errol further rec alled one occa sion wher e he came home from school and defe ndant was prese nt. Def

endant asked Errol to burn him a CD. Whil e Errol burned the CD, d ef endant walked around the living ro o m, but Errol was focuse d on the C D and did not know where defe ndant was at all times. At some point, defe ndant went to talk to S.C. and they g ot into a “litt le altercation,” break i ng the C D. Defenda nt y elled at S.C., asking why she broke the CD. Errol was walking in the hall when he saw defe ndant and S.C. in her room and the CD on the floor in the ha llway

. ¶ 19 D.W., ag e 13, testified that she was born on April 30, 1997. She g ot along “pre tty well” with defe ndant while he dated J osephine. Sometimes they went on vacation toge ther, and he watche d her aft er s ch o ol while J osephine worke d. Def endant and D.W. would watch television toge ther, and he would help her with her homework. Def endant would sometimes buy D.W. food, clothes, and “stuff.” Def endant did not y ell at D.W. if she broke J osephine’s rules; at night, before bed, D.W

. would g ive def endant a hug
, fac e-to-f

ace

. At some point, those hug s chang ed, and defe ndant would come up from behind D.W., put his arms around her shoulders, and “g o down” to her stomach such that his arms and hands would touch her brea sts. This happene d “like 20” times. This occur red when J osephine was sleeping or in a differ ent room. D.W. was not comforta ble with the way defe ndant hug g ed her. Def endant told D.W., “this is our secr et,” a nd, when it started, she did not tell any one. ¶ 20 D.W. testified that she and S.C. wer e pretty close while g rowing up, and they would hang

-6-out and play

. D.W. r eca lled swimming with S.C., Errol, and defe ndant at Silver L ake. S.C.

was not in the water the entire time they wer e swimming; rathe r, she g ot out of the water and
sat d own. L ater , D.W. asked S.C. why she g ot out of the water , and S.C. was mad and

answe red only

“cuz.” ¶ 21 During most we ekends that D.W. spe nt w ith Josephine (as opposed to with her fathe r), S.C. spent the wee kend with D .W. and stay ed in her bed. De fenda

nt did not alway s stay in his room; on more than one occa sion, he came into D.W.’s room and climbed into the bed betwee n the g irls. D.W. could not see any thing in the r oom, beca

use it was dar

k. ¶ 22 D.W. agree d that she met with defe ndant’s attorney

. The assistant State’s Attorney asked whether she told defe nse counsel that “nothing ever happene d.” She stated, “no.” On crossexamination, D.W. agree d t h at s he met with defe nse counsel and he rec orded their

conver sation. Howeve r, she clarified that, while she told defe nse counsel that she did not tell police that defe ndant rubbed her b re as t s i n an upwar d motion, she did tell police and her mother that defe ndant ru b b ed h er brea sts in a downwar d motion. Ultimately
, the tape

rec ording was played to the jury

. After war d, the State asked D.W. if defe ndant touched her brea sts in a downwar d motion, and she replied in the aff irmative. D.W. rec alled meeting with Depa rtment of Children and Family Service s (DC FS) investiga tor Robert Schnabel at her school, but she did not rec all telling him that def endant did not touch her

in a bad wa

y

. ¶ 23 Gra ce testified that she is S.C.’s mother and D.W.’s grandmother

. When J osephine was dating defe ndant, he and Gra ce would interac t on family events and trips. Gra ce fe l t t h at defe ndant was a

nice pe rson, “he was like a son,” and she trusted him. Gr ace testified that,

on October 26, 2007, her son’s g irlfriend came to v i s i t fr om Arizona and the family had a dinner. After

war d, Gra ce beg an clea

ning the kitchen and S.C. went to the baseme nt to iron. There are approx imately 12 steps leading into the baseme nt. She hear d J osephine tell defe ndant that it was time to leave
, and defe ndant walked past Gra ce to g o to the baseme nt. Desc ribing herse lf as “a nosy mom,” Gra ce testified that she wonder ed why
, when S.C. was the only person in the baseme nt, defe ndant was g oing there

. Gra ce “pee ked” down the stairs and saw defe ndant “up in the back” of S.C., and he put his arms around her and presse d his private part, specific ally his penis, ag ainst her “tush.” Gra ce explained that she was stooping down at the top of the s tairs and that, when she stood up, J osephine saw the expression on her fac e and asked what was wrong

. Gra ce said nothing. A few day s later, Gra ce asked S.C. whether that was the way defe ndant hug s her; S.C. did not answe r, but he r fac e turned red. A few day s later, Gra ce ag ain told S.C. that she neede d to know if that wa s t h e wa y that defe ndant hug s her; S.C. replied, “yes, mommy , I keep on telling him,” and the conver sation ended. Gra ce estimated that she confr onted S.C. appr ox imately three times a bout what she had see n. ¶ 24 For

a fe w day s around Tha

nksg iving 2007, Gr ace went to stay at her employ ers’ home
to car e for their dog s while they wer e out of town; S.C. went with her. On the way there
, S.C. looked sad, and Gra ce said to her that she wished S.C. would tell her what was wrong ; S.C. replied “Momm y , you wouldn’t want to know,” and put on her headphone s. On Thanksg iving morning
, Gra ce found S.C. in bed cry ing and trembling

. She asked S.C. what

was wrong , and S.C. told her about how defe ndant had touched her. S.C. continued to shake and cr y , and Gr ace ran to the bathroom and vomited.

-7-¶ 25 Gra ce did not immed i at ely g o to the police, beca use she wanted to find out more. F or example, she took S.C. to the doctor to co n fi rm that no sexual intercour se was involved. Gra ce , S .C., and D.W

. then had a meeting with J osephine (who was, at the t ime, pregnant with defe ndant’s child) at Gra ce’ s house. Gra ce testified that she did not ever tell or sug g est to S.C. or D.W. what they should say about what happ en ed betwee n them and defe ndant. Whil e J osephine was at Gra ce’ s house, defe ndant called J osephine’s cell phone. Gra ce

answe red the call and r ecognized defenda nt’s voice. She r eca lled as follows:
“I said, you child molester. I said, you wer e touchin g these girls. *** He shout[ ed] back a nd he say , Gra ce, I

have to tell you something. The se g irls are playing w ith each other. And I

tell him, Isaid, you f***ingperve rt[.] *** Iwill call the police.”
Acc ordingto Grac e, Josephine has since stopped ta lking to her

. ¶ 26 On November 30, 2007, Gra ce went with he r husband to the police. She agree d that, in her handwr itten statement to the police, she char acte rized defe ndant’s arms around S.C. as an inappropriate “hug ,” and she di d not descr ibe t here in the thrusting of defe ndant’s penis against S.C.’s bottom. Gra ce later met with Merc ado alone and, on other occa sions, as reque sted, she brought S.C . to a children’ s advoca cy cente r to be interviewe d. She was not in the room while S.C. was questioned. Gra ce never told S.C. what to say

. Gra ce agree d that the imag e of the way

defe ndant had grabbe d S.C. continues to haunt her. ¶ 27 Merc ado testified that he met with Gra ce on Dec ember 3, 2007. On Dec ember 13, 2007, he met with S.C. at the children’ s advoca cy cente r. He and an o ther detec tive interviewe d S

. C

. fo r approximately 11⁄2 hours, and then t hey left her alone to put into writing what sh e told them. Simi larly
, they separ ately met with D.W. on Dec ember 13, 2007, but, beca use she

was only 10 year s old, they did not ask her to put her comments in writing at the end of the interview. A war

rant for defe ndant’s arr est issued on Fe b ru ar y 14, 2008. Merc ado agree d with de fense counsel that, on Dec ember 14, 2007, defe nse counsel contac ted Merc ado and Merc ado told him that he was revie wing the case , might seek a war rant, and would contac t counsel if a war

rant wer e obtained. Merc ado agree d that the war rant was not issued until two months later and that he did not contact counse l to tell himthat there was a war rant. ¶ 28 Over defe ndant’s objection, Offic er Timothy Fitch testified that he works in the war rants division of the L ake County sheriff ’s office

. He arr ests people who are wanted for failing to appea r on war rants. On September 25, 2008, Fitch and his partne r, Deputy Van Dien, drove in an unmarke d minivan to 1295 Kathleen C o u rt in Antioch. They had rec eived a tip that defe ndan t , who was wanted on a criminal sexual abuse war rant, would be arr iving at that locatio n in a g ray Gra

nd Am vehicle afte r 5 p.m. Fitch and Van Dien wer e wea ring bulletproof vests, with the word “Sheriff ” written on t h e fr o n t and back, and star badg es. They wer e equipped with their normal equipment
, in c lu d in g f la s h li ghts , p e p p e r spray , Taser s, guns, and ammunition. ¶ 29 Ultimately , a gray Gra nd Am pulled into the g ara g e at 1295 Kathleen Court. When the office rs drove by
, a woman was sitti ngon the front por ch holding an infant. Fitch and Van Dien, using binocul ars, subsequently looked in the backy ard and saw a man whose
appea ranc e matched the photogr aph they had of defe ndant. They pulled their vehicle around
to the front of t he house and saw defe ndant walking toward a lawn mower betwee n two

-8-homes. They approa ched; Fitch told defe ndant that they wer e with the sheriff ’s office and that they had a war

rant for defe ndant’s arr est. Fitch did not say to defe ndant what the war rant was for or what defenda

nt was cha

rg ed with. Def

endant state d that he wa s not J esus Pere z and that his name was J oe Rodrigue z. Fitch asked for identification, and defe ndant had none. De fe n d an t stated that he lived at the house he was in front of, which was not the house at 1295 Kathlee n Court. Fitch asked if they could g o inside the house to g et some identification, and defe ndant agree d; howeve r, as they walked up to the front door, defe ndant pushed Van Dien in the chest and ran. Fitch and Van Dien chase d defe ndant, yelling “stop” and “police.” After a chase
, Fitch y elled to defe ndant that, if he did not stop, he would be tased. Def endant did not stop, and Fitch fired the Taser

. Only one probe hit defe ndant and so, while defe ndant

was stunned, he did not stop running

. Def endan t t ri ed to hop over a fenc e and fell; at that point, Fitch caught up with defe ndant and sprayed him with pepper spray

. Fitch told defe ndant t o g et on the ground, but defe ndant di d not listen to verba l comm an d s and tried
to walk away

. Fitch sprayed defenda nt a second time. Fitch gr abbed defe ndant’s arms and place d him on the g round on his stomach. Def endant was then handcuf

fed and walked to the squad ca r. ¶ 30 After

defe ndant was in c ustody , Fitch r eturne d to 1295 Kathlee n Court and spoke with J osephine, who was there with Xavier
, her infant son with de fenda nt. Josephine confirme d defe ndant’s identity

and that he lived at that addre ss. The cour t de nied defe ndant’s motion for a mistrial due to the prejudicia l nature of Fitch’ s testimony

. The State rested. The court denied de fenda

nt’s motion for a dire cted ve rdict. ¶ 31 I n d ef

en d an t ’s ca s e, Robert Schnabel testified that he works for DCFS and that, on De ce m b er 6, 2007, he met with D.W. at her school and in the prese nce of a schoo l administrator. At that time, D.W. volunteere d to Schnabel that defe ndant was like her fathe r and that there had been some touching but she did not fee l that it was bad. D.W. did not state that defe ndant had touched her brea sts; Schnabel did not ask D.W

. whether defe ndant had touched he r bre asts. Schnabel c larified that he was not there to intervie w D.W.; rather, the
purpose of the visit was to meet with D.W., ensure that she knew the identity of the alleg ed
perpe trator, and ensure that there would be no contac t betwee n D.W. and th e p erp et ra tor during the course of the DCFS and police investigation. His vi s i t wi t h D.W. lasted approximately

three minutes. ¶ 32 Merc ado testified in defe ndant’s case that Gra ce told him she could not see de fenda nt’s hands when he was presse d up behind S.C. in the baseme nt and that she used the word “hug .” He agree d, howeve r, that Gra ce was very detailed in her description of d ef endant

wra pping his arms around S.C. and thrusting his crotc h into S.C.’s backside

. Merc ado agree d that neither S.C. nor D.W. ever used the word “penis” in their interviews. S.C. told Merc ado that, when defe ndant’s front was pressed ag ainst her back, she could fee l nothing unusual from the waist down. He clar ified that the question about fee ling any thing unusual from the waist down re lated to whethe r the g irls felt a ha rd penis; they

did not. ¶ 33 Def

endant’ s two cousins, J o Anne Perez and J oaquin Coronado, and defe ndant’s sister, Dalia Martinez, all testified that they had witnessed def endant’ s interac tions with S .C. and D.W. at various family outings. The children wer e play ful and aff ectionate with defe ndant, and ther e we re no signs of trouble or hostility

.

-9-¶ 34 J osephine testified in defe ndant’s case that she l ives in Gurne e with D.W. an d Xavier

.

On ab out 15 to 20 occa sions, J osephine discussed with D.W. the alleg ed contac t b et we en defe ndant and D.W. On all occa sions, J osephine told D.W. that she wanted only to deter mine the truth. Eac h time, D.W. denied t h at defe ndant touched her improperly and denied that there was any contac t with her brea sts. When J osephine asked D.W. why D.W. had told other people dif

fe re n tly
, D.W. said she did not know or would deny having said such things to others. Acc ording to J osephine, she and defe ndant resided toge ther with D.W. for nine y ear s prior to these alleg ed eve nts. D.W. and defenda nt had a g ood relationship, and they would show phy sical aff

ection, like kisses and hug s g ood night. D.W. would put he r arms around defe ndant and kiss him on the fore head. There was never an instance of controve rsy betwee n defe ndant and D.W., D.W. never complained about defe ndant’s conduct toward her, and D.W. never showed reluc tance to be in defe ndant’s prese nce o r t o show or exchang e aff ection with him. ¶ 35 Simi larly
, as S.C. and D.W. wer e raised close to eac h other, the rela tionship betwee n S.C. and defe ndant also went back nine y ea rs. J osephine saw S.C. exchang e aff ection with defe ndant; for example, they would exchang e platonic hug s and kisses. She never saw S.C. demonstrate any host ility toward or reluc tance to be near defe ndant, and S.C. never expressed any reluc tance to spend the night at J osephine’s house

. In J osephine’s house, to g et to D.W.’s bedroom from J osephine’s bedroom, one would have to walk throug h the living room, wher e Errol slept on the couch, then to the back of the house. J osephine agree d that it was her habit to shower in the evening befor e bed, but she estimated that her showers lasted only 10 minutes or less. J osephine testified that she would have noticed if defe ndant had left their bed for a substantial period only to return later and that this h ad not, to her knowledg e, ever occur

red. Be cause of this case , J osephine had not spoken to Gra ce in more than one year , and she doe s not see S.C. ¶ 36 In closing argument, the assistant State’s Attorney discussed all of the incidents testified to by S.C. (W isconsin, in bed, afte r school, by ironingboard) . Then, he stated:
“B efor e I move on to [D.W .’s] testimony
, I wa nt to be cry stal clea r as to what the defe ndant is standing tr ial for a nd what you all are g oing to have to deliber ate and find him guilty of. You’re not g oing to be asked to return a verdic t on what happene d at Silver L ake and what happene d afte r [S .C.] turned 13. So the ironing board incident and coming

over afte r school. In the bed when she was 12 and he was 29 at [J osephine’s] house and he was touching her breasts over and under the clothes and he was ru b b i n g his private parts on her butt. That’s what you’re go i n g to delibera te on. You’re not g oing to deliberate to a ver dict on the other stuff

. When I talk about [D.W .], y ou’re also not g oing to de liberate on a ver dict and find whether or not [D.W .] was touched about the brea sts. But it’s important. That’s why we p u t i t o n and you can consider that testimony
, but you don’t deliberate on a verdic t. You’re g o i n g t o b e g iven instructions as to what you can consider about that other conduct. But Iwant to be c lear , the ver dict you’re g oing to deliberate i s when she’s 12 in that bed, bre asts and rubbingof the pe nis on the butt.”
L ater in his argument, the assistant State’s Attorney reite ra t ed that, although S.C.’s

-10-Dec ember 2007 police statement encompa s s ed more, the jury was to deliberate on the

conduct that oc curr ed in the bed when she w as ag e 12. ¶ 37 In his closing argument, defe nse counsel informed the jury that it could not consider the baseme nt incident, which was outside the time frame of the acts charg ed, and the Silver L ake incident, which ha

ppened in Wisconsin, not I llinois

. ¶ 38 In rebuttal closing
, the State asked the jury to “g o back and deliberate on the 29 y ear old laying in bed with these girls and touching [S .C.’s] brea st and come back an d t el l him it’s not okay .” ¶ 39 At the ju

r y in s tr u c ti o n s confe renc e, the parties disag ree d about what instruction reg arding the oth er -c ri m es evidenc e should be offe red. Def endant argued that, beca use the State introduced e vidence of bad a cts other than s exual conduct (specific ally
, the circumstances surrounding his arr est and flight), the jury should rec eive an instruction that it could consider those acts only for limit ed purposes. The State argued that, beca use the jury could consider for any purpose the other-c rimes ev i d ence reg arding sexual conduct, a hy brid instruction would be proper

. Specifica lly , the State ar gued, a hy brid instruction would inform the jury that it could co n s i d er for any purpose the evidenc e reg arding other sexual acts, but could consider for only limit ed purposes the evidenc e reg arding defe ndant’s arres t

. T h e court reje cted the State’ s reque st for a hy brid instruction. Thus, the jury was instructe d:
“Evidenc e has been rec eived that the def endant ha s been involved in c onduct other than those char g ed in the indictment. The evidenc e has been rec eived on the issues of the defe ndant’s identification, prese nce, intent, motive, design and knowledg e, and may be considere d by you only for that limit ed purpose. I t is fo r y o u to deter mine whether the defe ndant was involved in that conduct and, if so , what weight should be given to this evidenc e on the issue of identification, prese nce, intent, motive, desig n and knowledg e.” ¶ 40 The jury was also instructed that the comments made by attorney s in c losing constitute
argument, not evidenc e. Finally
, the jury was g iven four verdic t forms. The first two related
to the jury finding defe ndant guilty or not guilty of “fondl[ing] the brea sts of [S .C.] ” The second two related to the jury finding defe ndant guilty or not guilty of “push[ing] his pe nis
ag ainst the but tocks of [ S.C.] ” The jury found defendant guilty of b o t h char g es. The court denied defe ndant’s posttrial motion and sentenc ed defe ndant to six y ear s’ imprisonment. Def endant a ppeals.

¶ 41 I I . ANALYSI S ¶ 42 A. Quantity of Other -Crimes Evidenc e ¶ 43 Def

endant arg

ues first that reve rsible err or occur red wher e t h e m aj o ri ty of the State’s

case was comprised of other-c rimes evidenc e. He notes that the issue at trial was whether he fondled S.C.’s bre asts and pushed his penis ag ainst her bottom during wee kend sleepove rs in the summer of 2006. De fe n d an t asser ts that the many weaknesses of S.C.’s claims
rega rding the two char g es wer e camouf lag ed by the extensive evidenc e of ot h er s ex u al

co n du ct ( i.e.
, committed ag ainst S.C. in Wis consin, afte r S.C. turned ag e 13, and ag ainst D. W

. ). De fenda

nt argues that the ag g reg ate prejudicia l eff ect outweig hed the evidenc e’s probative va lue, re nderingthe trial unfa ir.

-11-¶ 44 In h i s ap p ell ate briefs, defe ndant highlights many alleg ed weaknesses in the evidenc e

perta ining to b o t h the char g ed and unchar g ed conduct. Howeve r, defe ndant’s arguments 4
reg arding the cre dibilit y o f the evidenc e are somewhat misplaced here

. Whil e defe ndant

asser ts that the quality of the other -cr imes evidenc e excee ded that of the charg es, his main alleg ation is that t h e o t h er -crimes evidenc e unfairly prejudice d him beca use its strong er

cre dibilit y , coupled with its quantity , distracted the jury from the we ak evide nce r eg arding the charg es. Thus, defe ndant asserts, had it considere d in isolation t he evidence pertaining to the char g es, the jury

might have acquitted him of those c harg es. ¶ 45 Other- crimes e vidence is unque stionably prejudicia l to a defe ndant. Gene rally
, the risk associate d wi t h t h e admissi on of ot her- crimes evidence is that it might prove “too m uch,” rende ringa jury

inclined to convict the de fenda nt simply beca

use i t believes that he or she is a bad person deser

ving of punishment. Donoho
, 2 0 4 I l l

. 2d at 170. Under cer tain circ umstances, howeve r, the probative value of other-c rimes ev i d en ce is considere d to outweig h its prejudicia l eff ect, rende ring it admissible. For example, under the common law, other-c rimes evidenc e may be admissible for limit ed purposes, such as establishing motive, identity
, prese nce, modus operandi
, knowledg e, intent, common desig n , or absenc e of mistake. Id. Reg ardle ss of probative value, howeve r, under the common law the introduction of other-c rimes evidenc e is not permitted for the purpose of est ab l i s h i ng the defe ndant’s propensity

to commit crimes. Id. ¶ 46 In contra st, section 115-7.3 of the Code permits evidenc e of a defe ndant’s prior se x ual activity with a child complainant to be admitted for any purpose , including the defe ndant’s propensity to commit sex offe nses. See id. at 176; Cardamone
, 381 I ll. App. 3d at 491. L ike the common law, however, section 115-7.3 permits other-crimes evidence only if: (1) it is rele vant; and (2) its probative value is not outweig hed by its prejudicia l eff ect. Donoho
, 204 I ll. 2d at 177-78. Section 115-7.3 further provides that, in weighing probative value ag ainst prejudicia l eff

ect, a court may consider: “(1) the proxi mity in time to the charg ed or predic ate offe nse; (2) the degree of fac tual simil arity to the char g ed or predic ate offe nse; or (3) other rele vant fa cts and c ircumstance s.” 725 I L CS 5/ 115-7.3(c ) (West 2008). ¶ 47 Our supreme court has urg ed trial courts “to be cautious in considering the admissibilit y

For exa m ple
, as to the cha rges: (1) S.C.’ s fa il u r e t o me n t i o n in her Dece m ber 13, 2007
, 4 pol ic e re por t tha t def

end ant pre sse d his pen is agains t her bot tom; (2) tha t D.W. fa il ed to cor rob ora te S.C.’ s cl ai m

th at , when def

end ant was in bedwit h them, S.C. to ok act ion s t o pu sh h im away or t o pul l her sel f away fr om him; (3) tha t Err ol did not te st if y tha t he ever not ic ed def end ant ent er ing or le aving D.W.’ s roo m , even tho ugh h e s l e p t o n the cou ch in the li ving roo m and def end ant woul d have had to wal k pas t Err ol to get in or out of D.W.’ s roo m ; (4) tha t S.C. did not ini ti al ly re por t the abu se and con ti nue d to sl eep at J ose phi ne’ s wit h no exp re ssi on of re luc ta nce ; and (5) when S.C. did

re port the abu se, in Novem ber 2007 (a lt hough it hap pen ed in the summ er of 2006 ), it was onl y af te r

re pea te d que st ion in g by Gra ce. Def end ant not es m any al le ged weaknes ses in the oth er

- cr imes eviden ce, too , but not es tha t tho se inc ide nts , unl ike the cha rges, at le ast had s o me f o r m of

cor rob ora ti on ( e.g. , Err ol and D.W. saw S.C. get out of the wat er af te r pla ying wit h def

end ant in the
wat er , Err ol agree d tha t def end ant was at th ei r h om e af te r sch ool and tha t def

end ant and S.C. had a di sagre ement, a nd Gr ace sa w somethi ng occu r i n t he b ase m ent , by the ir oni ng boar d).

-12-of other-c rimes evidenc e to show propensity by eng ag ing in a meaning ful assessment of the

probative va lue ver sus the prejudicia l impac t of the evidenc e.” Donoho , 204 I ll. 2d at 186. When weighing the prejudic i al ef fect of admission, a court should consider whether the other-c rimes evidence will become the focus of t he trial, o r wh et h er it might otherwise be misleading or confusing to the jury

. See People v. Boyd
, 366 I ll. Ap p

. 3d 84, 94 (2006) (other- crimes evidenc e must not become a foca l point of the t rial, and the detail and
repe tition admitted must be narr ow so as to avoid the dang er of a trial within a trial). A trial court’s decision to admit other-c rimes evidenc e will not be reve rsed unless the court abused i t s d i s cr et i o n. Donoho
, 204 I ll. 2d at 182. A trial court abuses its discretion if the court’s deter mination is unrea sonable, arbitra ry , or fanc iful, or if no rea sonable person would adopt the cour t’s view. Id. ¶ 48 Def

endant conce des that the other-c rimes ev i d en ce h er e s at i s fi ed section 115-7.3’ s require ments reg arding rele vance and probative value ( i.e.
, he conce des temporal proxi mity and s i m ilarity to the char g ed offe nses), but he arg ues instead that the volume of evidenc e

cre ated substantial prejudice that outweig hed probat i ve value. In Cardamone
, this court

rec og nized that there mi ght b e times when the sheer volume of other-c rimes evidenc e rende rs it unduly prejudicia l. Cardamone
, 381 I ll. App. 3d at 496-97 (finding other-c rimes evidenc e unduly prejudicia l wher e the State, in its prosec ution of a g y mnastics coac h for sexual abuse, introduced as many as 257 incidents of uncharg ed conduct ag ainst 7 alleg ed victims). Def endant argues that the quantity of other-c rimes evidenc e admitted here prese n ts a “textbook ex ample of a

trial within a trial” a

nd constitutes reve rsible er ror. We disagree

. ¶ 49 We note first that Cardamone did not purport to hold that any time the evidenc e of other crimes o u t n u m b ers that of the char g ed incidents, the prejudicia l eff ect rende rs the othercrimes evidenc e inadmissible. Indeed, Cardamone rec og nized that section 115-7.3 permits other-c rimes evidenc e t o b e introduced for substantive purposes and that deter mining whether the nature and quantity of the evidenc e is ex ce s s i v e is left to the trial court’s discretion. Id. at 489, 497 (noting that “[c]learly
, some of the evidenc e was admissible and it is difficult to deter

mine prec isely wher e to draw the line” (empha sis added) ). Simpl y put, Cardamone was a

n extreme ca se. This court has rec og nized that Cardamone ’s application of section 115-7.3 to the circ umstances there in likely ref lects the “outer bounds” of the rule, leaving more “subtle inner striations” to deter mining when the volume of other-c rimes

e vidence admitted under section 115-7.3 become s unduly prejudicia l. People v. W a ls to n , 3 8 6 I ll. App. 3d 598, 619 (2008). Fur ther, W alston no t ed t hat, in g ener al, the dang er of unfair prejudice in the context of a section 115-7.3 case , as opposed to a common-law other-c rimes

case , is gr eatly

diminis hed by

the ver y fac t that section 115-7.3 upende d the l ong -standing rule that other-c rimes evidenc e to establish propensity is per se unfairly prejudicia l–instead, introduction for propensity is actua lly proper

. Id. at 619-20. Thus, while undue prejudice can arise in a section 115-7.3 case , “the actua l limit s on the trial court’s decisions on the quantity of propensity evidenc e to be admitted under section 115-7.3 are relatively modest, espec ially when combined with the highly defe rential abuse- of-discr etion standard that g overns revie w of such trial court decisions.” Id. at 621. Moreove r, while the court must car efully consider the quantity of other-c rimes evidenc e and be mindful of probative value and undue prejudice
, it may consider that any undue prejudice of “more thoroug h other-c rimes evidenc e” admitted

-13-under section 115-7.3 will be “less” unduly prejudicia l than in a common-law other-c rimes

case

. Id. at 622. ¶ 50 Given t h e fo re go i n g, we cannot say that, here
, the trial court abused its discretion. Def endant was char g ed with two incidents; the other-c rimes incidents may be g rouped into four cate g ories: (1) defe ndant touching S.C. at Si l v er L ake, Wis consin; (2) defe ndant touching S.C. at her house afte r school; (3) defe ndant touching S.C. by the ironing board, in the baseme nt ; and (4) the conduct testified to by D.W. Whil e the quantity of other-c rimes evidenc e did exceed that of the char g ed co n du ct , i t cer tainly did not rise to the extreme volume ref

lect e d in Ca r

d a m o n e a n d it o therwise ref

lected rele vant propensity evidenc e under section 115-7.3. Specifica lly
, and as the trial court noted, context is relevant and, without context, limit ing a complainant’s test im o ny mi ght ma k e th e c h a r g e d inc idents appea

r isolated and unfairly strain the cre dibility of the complainant’s testimony co n ce rn i n g the char g ed offe nses. S ee , e. g

. , People v. Tannahill
, 152 I ll. App. 3d 882, 887 (1987). Her e, without evidence re gar ding the Silver L ake touching
, the jury would have hear d that defe ndant

cra wled into bed with her, touched her brea sts, and pushed his penis ag ainst her without any context for how that behavior beg an, i.e.
, “horse play” in the water that esca lated to touching S.C.’s brea sts over her swimsuit. As such, and g iven the previously positive rela tionship betwee n S.C. and defe ndant, the bedroom events would have app ea red to come out of nowhe re , s t raining S.C.’s cre dibilit y

. Simi larly
, without evidenc e of the incident by the ironingboard, the jury

would have la cked inf

ormation reg ardinghow S.C. came to inform her mother about defe ndant’s conduct and how charg es came to be pursued. Wit hout evidenc e of defe ndant’s prese nce and touching at S.C.’s house afte r school in the fall of 2007, the jury would not have understood that defe ndant’s behavior was not isolate d to the
two fore g oing incidents, which wer e separ ated by m o re than one year (the Silver L ake touching in the s ummer of 2006 and, in October 2007, the t ouching by the i roning board)

. Rather, evidenc e reg arding defe ndant’s actions at S.C.’s house afte r school filled in that time
g ap to establish that the patter n of conduc t continued in the interim. ¶ 51 We note that the eviden ce p re s en t ed b y D.W. is slightly more complicated in that her testimony claimed 20 incidents of touching
, and, as defe ndant notes, his motion to sever the trials related to S.C. and D.W. was g rante d becaus e o f t he prejudicia l nature of such testimony

. The tension that section 115-7.3 has arguably place d on the joinder statute (725 I L CS 5/114-8(a) (Wes t 2008)) has been noted by this court. S ee W alston
, 386 I ll. App. 3d
at 622-23 (consider ing whether misjoi nder was harmless err or wher e, even if trials had been

sever ed, section 115-7.3 permits “expansive propensity evidenc e” to be introduced even wher e crimes cannot, under the I llinois joinder scheme
, be tried toge ther). Neve rtheless, this court in W

alston emphasized that the i ssue of joinder m ust be considered “sep ar at el y , and completely ,” reg ardle ss of the fac t that section 115-7.3 might, in eff ect, rende r a misjoi nder harmless. Id. at 623. Thus, the two re main separ ate inquiries and, even where, as here
, the trials on charg es related to sepa rate complainingwitnesses ar e seve red, one complainant’s testimony may , if it meets section 115-7

. 3 ’s re qu i reme nts and the court, in its broad discretion, finds the evidenc e more probative than prejudicia l, be introduced in the other trial via sec tion 115-7.3. ¶ 52 Turning to the substance of D.W.’s testimony
, we cannot find err or in th e trial court’ s

-14-decision. Ag ain, defe ndant does not d i spute that D.W.’s testimony was rele vant and

probative. We agree with the trial court that the prejudic i al eff ect of the evidenc e did not outweig h its probative value. D.W. did not testify (unl ike the witnesses in Cardamone ) at leng th about eac h alleg ed instance o f co ntact; rathe r, she summarily testified that, on approximately 20 occa sions, defe ndant wra pped his arms around her from behind and touched her brea sts. Specifica lly
, on direc t examination, throug h approxi m at ely 15 to 20 question s , t h e S t ate established with D.W. that: (1) defe ndant beg an hug g ing her from behind; (2) defe ndant put his arms around her shoulders and moved his ar m s an d h ands downwar d; ( 3) defe ndant’s arms and hands touched D.W.’s br easts; (4) defe ndant touched her in this manner approximately 20 times; (5) D.W. was not comforta ble with this touching ; and (6) defe ndant never touched any other private are a on D.W.’s body

. Thus, the testimony was not unduly

inflammatory

or excessive. ¶ 53 We also note that, while defe ndant sug g ests that the surrounding circ umstances of some of the other-c rimes conduct, such as defe ndant throwing S.C. into water wher e she could not stand, or trying to g et her to op en t he door when she was home alone, wer e far more egreg ious than t hose surrounding the c harg es, he doe s not, in fact, ar gue that the nature of this other-cr imes evidenc e (a s opposed to its quality or quantity

), re ndere d it inadmissi ble. See id. at 621 n.9 (re g ar d l es s o f q u anti ty , the nature of propensity evidenc e, such as its

sever ity
, closene ss in time, and whether it can be proved, rema ins rele vant to considering its admissibili ty under section 115-7.3). None of the other-c rimes evidenc e was p ar t i cu larly

more heinous than the char g ed conduct such that, reg ardle ss of quantity
, it might be unduly prejudicia l. For example, while defe ndant’s poun d in g o n the door to enter S.C.’s house might be viewed as terrif

ying to a child, the jury could also rea sonably find that defe ndant’s entry into a dark bedroom and into D.W.’s bed during S.C.’s vulnera ble state of sleep was equally
, if not more, ter

rifying. F urther, this is not a ca se wher e the alleg ed uncha rg ed conduc t was

more ex treme or heinous ( e.g. , vag inal penetr ation) t han the char g ed conduct (touching of brea sts, sometimes over clothes). Her e, while the locations and circ umstances of the alleg ed touches varie d, the other-c rimes evidenc e ref lected, consistent with the char g es, the touching of breasts over c lothing or the pressingof defendant’ s clothed pelvic reg ion ag ainst S.C.’s bottom. ¶ 54 In sum, we reje ct defe ndant’s argument that the trial court committed reve rsible err or by admitting under section 115-7.3 more evidenc e of unc harg ed cr imes than evidence related to the char g es. W e note that, in Cardamone , the risk of juror confusion wa s heig htened by fac t that the cas e wa s complex and involved over 100 witnesses. Her e, there wer e signific antly few er witnesses, the issues wer e not complex, and the volume of other-c rimes evidenc e, while g reater than that perta ining to the char g es, was not excessi v e. Gi v en the contextual rele vance of the other-c rimes evidenc e, as well as the fa ct that the trial court clea rly considere d the rele vant case law reg ar d i n g admission of section 115-7.3 evidenc e, conducte d a meaning ful assessment of the probative value versus prejudicial eff ect of the evidenc e, and narr owed the scope of the evidenc e to avoid mini-trials by direc ting the State
to selec t only three or four incidents to provide context for the char g es, we conclu d e t hat there was no a

buse of discr etion.

-15-¶ 55 B. L imiti ngInstructions

¶ 56 De fe n dant next argues that, cumulatively
, the trial court’s: (1) failure to g ive limi t i n g instructions when witnesses testified to uncharg ed conduct; and (2) use of jury instructions and verdic t forms that did not distinguish betwee n unchar g ed and char g ed conduct rende red the jury verdic t unreliable beca use the convictions might have been based on the unchar g ed conduct. Def

endant notes that at no time during the trial did the court distinguish for the jury evidence reg arding the char g ed conduct versus the unchar g ed conduct. Alternatively
, defe ndant argu es that his trial counsel rende red ineffe ctive assistance wher e he failed to reque st the fore g oing or

to otherwise br ing the err ors to the cour t’s attention. ¶ 57 Def

endant conce des that he d i d not object below to the trial court’s alleg ed err ors and that, there fore
, both issues a re f orfe ited. See People v . Herron , 215 I ll. 2d 167, 175 (2005) (both an objection at trial and raising the issue in a posttrial motion are nece ssary to prese rve the issue for appellate revie w). Def endant asks that we revie w the issues for plain err or under I llinois Supreme Court Rule 615(a) (ef f. J an. 1, 1967). Plain-err or analy sis perm i ts a revie wing court to consider and grant re lief on a forfe ited claim where: (1) the evidence is close, reg ardle ss of the seriousness of the err or; or (2) the err or is se rious, reg ardle ss of the closene ss of the evidenc e. Herron
, 215 I ll. 2d at 178. Howeve r, the analy sis first require s that there be an err or, that the err or be plain, and that the err or aff ect substantial rights. Id. at 184- 85; People v. Nicholas
, 218 I ll. 2d 104, 121 (2005). As there was no err or here
, defe ndant’s claims rema in forfe ited. ¶ 58 We consider first the lack of limit ing instructions during the course of trial. Our supre me court has held that, even when other-c rimes evidenc e is being introduced under the common law and only for limit ed purposes, a court’s failure to provide limit ing instructions when the evidenc e is prese nted “does not mandate reve rsal.” People v. Heard
, 187 I ll. 2d 36, 61 (1999) (finding that the defe ndant rec eived a fair tri al wh en p roper admonitions wer e g iven only afte r closing a

r g u me nt)

. Providing limit ing instructions contempora neous to the introduction of common-law other-c rimes evidence is th e “b et t er practice ,” but it is not require d. Id. at 60-61; see also People v. Butler , 377 I ll. App. 3d 1050, 1067 (2007) (limi ting inst ructions when the other-c rimes evidence is presented to jury mere ly “sug g ested” ). Thus, if limiting instructions are not required even wher e other-c rimes evidenc e is admissible only for limit ed
purposes, they are cer

tainly not require d wher e, as here
, the evidenc e is ad missibl e under section 115-7.3 f

or any purpose, i.e.
, without

limitati on

. ¶ 59 Intere stingly
, and despite the court’s initial ruling that the evidenc e was admissible under section 115-7.3 for any purpose, the court ultimately did instruct the jury
, befor e its deliberations, that all of the other-c rimes evidenc e (w ithout dis tinction between the sexual conduct and arre s t /flight evidenc e) could be considere d only for limit ed purposes. Thus, althoug h a limit ing instruction reg arding the section 115-7.3 evidenc e was not require d, defe ndant never

theless benef

itted from a limit ing instruction on that e v id e n c e

. T h u s , f o r three

rea sons, there was no err or in t h e court’s failure to provide limit ing instructions contempora

neous to the introduction of the evidenc e: first, beca use, under section 115-7.3, the evidenc e was admissible without limit ation; second, beca use, even if it wer e admissible for limit ed purposes, such admonitions are mere ly sug g ested, not require d; and
, t h i rd, beca use a limit ing instruction was ultimately p re s en ted, even wher e it was not require d.

-16-There fore
, there wa s no plain err or and defe ndant’s argument reg arding the limit ing

instructions remains for feited. ¶ 60 Next, defe ndant notes that the jury was not informed at any point during the trial which alleg ed acts comprised the char g es. He points out that the jury instructions and verdic t forms informed the jury on l y gen erally that it had to find that defe ndant touched S.C.’s brea sts and/or presse d his penis ag ainst h er b o t t o m , but not that it had to find that defe ndant committed those acts in bed with S.C. in the summer of 2006. Def endant argues that, without in s tr u c ti o n s o r v e r d ic t f

o rms that differ entiated betwee n the char g ed and unchar g ed incidents, there is a stronglikelihood that the jury convicted de fenda

nt based upon a

n unchar g ed act. Finally
, defe ndant arg

ues that the assistant State’s Attorney ’s distin cti on, in closing
argument, betwe en the char g ed and unchar g ed conduct did not cure the err or, beca use the jury was instructe d by

the cour t that closing a

rguments are not evidence . We disag ree

. ¶ 61 We conclude
, looking at the rec ord in its entirety
, that the jury was sufficie ntly apprised of the distinction betwe en the char g ed and the unchar g ed conduct and that, there fore
, there

was no plain err or. The following info rm ation was provided to the jury befor e and at the beg inning of trial: (1) in voir dire
, the pot en t i al jurors wer e informed that defe ndant was char g ed with ag g rava

ted criminal sexual abuse that occur red on or befor e J une 1, 2006, and J anuar y 20, 2007; (2) in opening statements, defe nse counsel informed the jury that this case involved only S.C. and not D.W.; and (3) the jury hear d evidenc e that S

. C

. wa s b orn on J anuar y 20, 19 9 4
, wh i ch made her 13 year s old on J anuar y 20, 2007. Thus, the jury knew befor e it hear d the other-c rimes evidenc e that any acts that occur red after J anuar

y 20, 2007 (such as the incidents in the baseme nt and at S.C.’s house afte r school ), d i d n ot form the basis of the c harg es. ¶ 62 The jury hear d the following information at the close of trial: (1) in closing argument, the assistant State’s Attorney expli citly informed the jury that the char g ed acts wer e only those relat ed t o t h e bedroom in the s ummer of 2006 and not any in Wis consin, in the basement, afte r school, or testified to by D.W.; (2) the defe nse attorney , in closing argument, repe ated that the jury was not to consider the baseme nt or Wis consin incidents as char g ed acts; (3) the jury was instructed that, to convict defenda nt of t he o ff

ense of aggravated criminal sexual abuse, S.C

. had to be under 13 years of age when the act was committed; an d (4 ) t h e j ury

was instructed that, althoug h it hear d evidenc e that defe ndant was involved in acts other than those char g ed in t he indictment, it should deter mine whether that conduct occurr ed and, if
so, the weight to g ive that evidenc e on the issues of identification, prese nce, intent, motive, desig n, and knowledg e. As such, afte r hear ing from the attorney s that the char g es involved only the t ouches in bed, the jury was ag ain i nformed that, as to any other c onduct, i t could be conside red only

for limited purposes. ¶ 63 Def

endant was entitled to a fair, but not a per fec t, trial. Herron
, 215 I ll. 2d at 177. We
agree that better prec ision in the instructions and verdic t forms would have been pref era ble. We further believe that it is incumbent on a trial court, when considering admission of othercrimes evidence under section 115-7.3 and as s essing whether prejudicia l eff ect outweighs probative value, to assess whether a failure to specific ally differ entiate betwee n char g ed and unchar g ed conduc t would, under the fac ts of the particula r case , rende r admission unduly prejudicia l. We suspect that, in most case s, the better prac tice will be to inform the jury of

-17-the char g ed versus unchar g ed conduct as that evidenc e is admitted. Neve rtheless, we do not

agree , g iven the fore g oing fac ts and circ umstances, that this verdic t was rende red unreliable

. We conclude that the jury was suff iciently apprised of

the distinction betwee n the charg ed and the unc harg ed conduc t and that, there fore , there was no plain e rror

. ¶ 64 Fu rt h er , we note that, although the jury was told that closing arg u m en t s ar e o n l y argument, not evidenc e, we do not agree with defe ndant’s sug g estion that the court’s admonition co m p l et ely evisce rate d any information that the attorney s provided to the j ury in closing

. Specifica lly
, nothing about the attorney s’ comments in clos ing reg arding the char g es ref

lected their “spin” on evidenc e; rathe r, the attorney s wer e in agreem ent and wer e consistent in informing the jury about which conduct formed the basis of the char g es. Finally
, to the ex t ent that defe ndant’s argument that the absenc e of prec ise forms and instructions prejudice d h i m raises a cumulative-e rror argument, that argument fails wher e none of the
separ ate c laims amounts to reversible e rror . See Cardamone , 381 I ll. App. 3d at 510. ¶ 65 Fi n al ly
, defe ndant’s alternative argument, that defe nse counsel rende re d i n ef fe ct i v e assistance wher e he failed to reque st l imiti ng instructions or specific jury instructions and verdic t for m s , also fails. When a defe ndant argues that counsel’s perf ormanc e was ineffe ctiv e, h e or she must show both that: (1) the attorney ’s perf ormanc e fell below an objective standard of rea sonablene ss (d efic ient-per formanc e prong ); and (2) there is a

rea sonable probability that, but for the attorney ’s defic ient perf ormanc e, the outcome of trial would have be en diffe rent (pr ejudice pr ong ). Strickland v. W ashington
, 466 U.S. 668, 687 (1984); People v. Villarreal
, 198 I ll. 2d 2 0 9
, 2 28 (2001). To succe ed on an ineffe ctiveassistance claim, both Strickland prong s must be satisfied. Strickland
, 466 U.S. at 687; People v. W

illiams
, 181 I l l

. 2d 297, 320 (1998). There is a strong presumption that an att orney ’s perf

ormanc e falls within the wide rang e of rea sonable profe ssional assist an ce

. Trial strategy cannot be a basis for finding counsel ineffe ctive. See People v. Smith
, 177 I ll. 2d 53, 92 (1997). ¶ 66 An attorney ’s decision to r equest a limit ing instruction c an be viewed as strateg ic. See,
e.g. , People v. Figueroa
, 341 I ll. App. 3d 665, 673 (2003). Def endant cannot establish that counsel perf

ormed defic iently at trial wher e: (1) g iven the motion in limine ruling
, defe ndant

was not entitled to any limit ing instructions during trial (see
, e.g. , People v. Phipps
, 238 I ll. 2d 54, 64-65 (2010) ( counsel is not require d to offer basele ss or losing a

rguments to a

void being found i neff

ective )) ; an d (2) counsel did reque st a li miting i nstruction at t he close of trial and was succe ssfu l i n that eff ort. There fore
, there was no defic ient perf ormanc e reg ardingthe limiti nginstructions. ¶ 67 As to t h e re m ai n i n g jury instructions and verdic t forms, which did not disti nguish betwee n the char g ed and u n ch arge d conduct, defe ndant cannot establish that counsel’s decisions wer e not strateg ic. Indeed, counsel might have deter mined that, wher e his pretria l attempts to have the actua l char g es specifie d to the jury wer e unsucce ssful, any further eff orts in that reg ard would be fruitless. See Phipps
, 238 I ll. 2d at 64-65. Moreove r, counsel might have deter

mined that defe ndant was sufficie ntly protec ted wher e counsel was able to obtain for defenda

nt an unex pecte d and favorable ruling in that he rece ived a limiting ins truction for evidenc e that was previously ruled admissible without limit ation. Finally
, counsel might have strateg ically deter

mined that additional eff orts to distinguish betwee n char g ed and

-18-unchar g ed incidents would have further highlighted the entirety of the evidenc e and would

not have se rved de fenda

nt’s interest. ¶ 68 E ff

ec t i v e as s i s t an ce re fe rs t o co m petent, not perf ect, repr esenta

tion, and “[ t ] h e

rea sonablene ss of counsel’s actions must be evaluated from counsel’s perspe ctive at the time of the alleg ed err or, and without hindsight, in light of the totality of circ umstances, and not just on the basis of isolated acts.” People v. Calhoun
, 404 I ll. App. 3d 362, 383 (2010). Her e, defe ndant’s ineffe ctive-a ssistance claim fails beca use he cannot es t ab l ish that defe nse counsel pe rfor

med in an objec tively

unrea sonable manne r.

¶ 69 I I I . CONCLUSI ON ¶ 70 For the fore g oing rea sons, the judgme nt of the circ uit court of L ake County is a ffirme d.

¶ 71 Affir

med.

¶ 72 J USTI CE McLAREN, spec ially concur ring : ¶ 73 I specia lly concur beca use I wish to addre ss a point that I consider to be err or. Def endant
reque sted that the indictment be rea d to the jury

. Alleg edly
, it was to emphasize the element of sexual gr atification that was require d for conviction. Def endant was not e ntitled to such

a rea ding; howeve r, I believe that, in the context of the pro ce dural aspec ts of this case , rea ding the indi ct m en t would have ameliorated the problem that I believe constituted
proce dural err or. The jury in this case was not told until closing argument what the char g es

wer e th at it was to adjudicate

. I f opening statements and the trial are supposed to achie ve any thing, it is to advise the jury of the char g es, prese nt the evidenc e rela tive to those char g es, and instruct or dire ct the jury , prior to closi ng arguments, on the i ssues and the proofs that

are prese nted re lative there to. The majority dispositi on relates: “In opening statements, the State discussed the evidenc e the jury would hear but did
not distinguish the acts that formed the basis of the char g es from t h e o t h er -c rimes evidenc e. Simi larly
, d efe nse counsel did not state what specific acts defe ndant was char g ed with committing; howeve r, he did inform the jury that the trial and the evidenc e perta ined only

to S.C ., not D.W.” (Emphasis added.) Supra ¶ 8.
I co nsider it err or to fail to apprise a jury of the char g es ag ainst a defe ndant when it i s anticipated that there will be prese nted, and ultimately is prese nted, other-c rimes evidenc e. The jury oug ht to know what it is to focus on, what it will be char g ed with adjudicating
, prior
to closing arguments. I f the cliché, “Tell ’e m what y ou’re g oing to tell ’em. Tell ’em. Tell ’em what you told ’em.” (attributed to Paul Welrose Whit e, J une 6, 1902-Jul y 9, 1955, CBS radio ne ws direc tor, beg inning in 1930) ha s application, it should be here

. ¶ 74 Ne v er t h el es s, I do not believe that prejudice arose

. I do not believe that the out co m e would have been differ ent. I do not believe that the jury was sufficie ntly confuse d, distracted, or misinformed so as to ca ll the verdicts into question.

-19-