## 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 . Marcos , 2013 IL App (1st) 111040

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. J AIME MARCOS, Defenda nt-Appellant.

District & N o. First District, Six th Division Docke t No. 1-11-1040

Filed Rehea ringdenied August 16, 2013

August 28, 2013

Held (Note : This syl lab us

con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by 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

. ) On appea l from defe ndant’s conviction for the predatory criminal sexual assault of his then live-in g irlfriend’ s eight-year -old daughter, the trial court’s erro r i n fa i ling to g ive t he pattern instruction require d when the child’s sexual-assault outcry statements are admitted under section 115- 10 of the Code of Criminal P ro ce du re was not plain err or, since the evidenc e aga inst defe ndant was n o t cl osely balanc ed, and his counsel’s failure to reque st the instruction did not amount to ineffe ctive
repr esentation in the absenc e of any rea sonable probability that the result would have be en diffe rent if the r equest ha d been ma de.

Dec ision Under
Review Appea l from the Circuit Court of Cook County
, No. 08-CR-811; the Hon. Nore en Va leria- L ove, Judge, pr esiding

.

J udg ment Affir med; mitti mus corre cted.Counsel on

Appea l Michae l J

. Pelletier, Alan D. Goldberg
, and J ennife r L

. Bontra g er, all of State Appellate D efe nder’ s Offic e, of Chica g o, for a ppellant.

Anita M. Alvare z, State’s Attorney
, of Chicag o (Alan J

. Spellberg and Mary L

. Bola

nd, Assistant State’s Attorney s, of counsel), for the People.

Panel J USTI CE GORDON delivere d the judgme nt of the cour t, with opinion. Presiding J ustice L ampkin and J ustice Reyes concur red in the judgme nt and opinion.

OP INION

¶ 1 Def

endant J aime Marc os was convicted afte r a j u ry t ri al of three counts of pre datory criminal sexual assault ag ainst eight-year -old G.M., who was the daughter of his then live-in
g irlfriend. Specifica lly
, he was charg ed with one count of contac t betwee n his penis and her
anus, and two co u n t s of contac t betwee n his tongue and her anus. After hearing fac tors in mitigation and ag g ravation, the trial court s en t en ce d defe ndant to 3 consec utive 6-year sentenc es for

a total of 18 year s in the I llinois Depa rtment of Corre ctions (I DOC). ¶ 2 On this direc t appea l, defe ndant raises two claims

. Fi rs t , h e argues that the trial court

err ed by failing to instruct the jury with I llinois Pattern J ury Instructions, Criminal, No. 11.66 (4 t h ed

. 2000) (herinafte r, I PI Criminal 4th No. 11.66), which is require d whene ver a tr i al
court admits into evidenc e a child’s sexual-assault outcry statements pursuant to section 115- 10 of the Code of Criminal Procedur e of 1963 as an exception to the hear say rule. 725 I L CS 5/115-10(c) (West 2006). The issue befor e us is limit ed to whether this err or rises to the level of plain err or or whether it would support the conclusion that defe ndant’s trial counsel was constitutionally ineffe ctive for failing to r aise it. There is no dispute that the trial court was require d by statute to g ive the instruction, and def endant c oncede s in his brie f to us that he waive d t h i s i s s u e for consideration on appea l by failing to ask the trial court to g ive the instruction. With respe ct to plai n erro r, defe ndant argues that the evidenc e was closely balanc ed only with respe ct to the two m outh-to-anus counts. Thus, the one penis-to-a nus count is not at issue on this appeal. ¶ 3 This issue require s us to interpre t and apply the I llinois S up re m e C o urt ’s h o lding in People v. Sargent
, 239 I ll. 2d 166, 190 (2010), that a trial court’s failure to g ive I PI Criminal 4th No. 11.66 did not rise to the level of plain erro r, b eca use the evidenc e of predatory criminal sex ual assault in t hat par ticular c ase w as overwhelming

. Our opini on today is the first published appellate court opinion to interpre t and apply this hold i n g i n Sargent

. Although many other case s have cited Sargent
, they cite it for other propositions, such as a g ener al statement of the plain err or rule or a statement of the corpus delicti rule. None of the published case s interpre t or apply this particular holding

.

-2-¶ 4 Secondly
, defe ndant claims, and the State agree s, that he is entitled to an additional day

of cr ed i t for time serve d. For the following rea sons, we aff irm defe ndant’s conviction but order the mittim us corr ecte d to refle ct an a dditional day of cr edit for time ser

ved.

¶ 5 BA CKGROUND ¶ 6 Prior to trial, the State moved to admit into ev i d en ce t h e v i ct i m’s hear say outcry

s t atements both to her mother and to Thomas Plach, a licensed clinical social wo rk er , pursuant to section 115-10 of the Code of Criminal Procedur e of 1963. After a hearing, the trial court g rante d the motion and found that both statements wer e admissible. This order of the trial court is not at issu e, since defe ndant argues on appea l only that the require d jury instruction should have bee n g iven once the statements we re a dmitted. ¶ 7 At trial, the State called four witnesses: (1) G.M., the victim, who was then 11 year s old; (2) A.M., the victim’s mother, who heard G.M.’s initial outcry ; (3) Maria Saly nas, who acte d
as t he S panish translator for G.M.’s subseque nt statement t o social worker Thomas Plach; and (4) Detec tive Carlos Palon er , wh o speaks both Eng lish and Spanish and who memorialized defe ndant’s statements in Spanish in a ty ped document. As we explain below in the analy sis section, we are called upon in this appea l to deter mine whether the evidenc e

was closely balanc ed. Since there is no phy sical evidenc e and the State’s evidenc e consisted primarily of statements made, we describe these statements in detail below, to show the simil arity in th e accounts provided by the victim at trial; the victim’s hear say outcry statements to her mother

and to a soc ial worke r; and de fenda nt’s statements to the police. ¶ 8 The State’s first witness, G.M., chose to testify in Eng lish. Al t houg h she first lear ned S p an i s h, she now also speaks Eng lish. G.M. identified defe ndant in court as her moth er ’s boy friend and explained that he “did something bad” to her in the autumn of 2 0 0 7 in her home in Cicero, when she was eight year s old. It was at night, and her mother was not home. G.M. was lying on a bed in the middle of t h e l i ving room with defe ndant and her baby brother, and she was in betwee n them. She was prete nding to be asleep, when defe ndant pulled off her pants and underw ear and “he put his tongue on my –on my vag ina” and “licked the front.” G.M. did not move because she was scare d. Then he “put hi s penis in my butt” and moved “[b] ack and forth” until she felt “[s] omething slippery .” G.M. explained that the word for penis in Spanish is “pollo.” T hen he pulled he r pants and unde rwe ar up a nd went to the bathroom. ¶ 9 G.M. testified that it happene d ag ain but she did not reme mber how many day s later. The second time, shewas at home with he r young er sister, her baby brother and defe ndant, and her mother

was out buying milk. It was at night, and she wa s lying on the bed in the living

room with defe ndant, her baby brother an d h er young er sister, and she was lying next to defe ndant as she prete nded to be aslee p. Def endant pulled off her pants and underw ear , “and he put his lips on my vag ina” and “licked it.” Then “he put his penis on my butt” and “moved back and forth,” and “it hurt.” She did not say any thing becau s e she was scar ed. Then he stopped and pull ed her pants and underwea r up, and her mother came hom e. G.M. did not tell her mother be cause she wa s scar ed of de fenda nt. ¶ 10 G.M. testified that sometime later–she does not reme mber exactly when–she did tell he r

-3-mother. Her m o t her had g one int o the ki tchen to heat some milk for her baby brother, and

ever yone else was aslee p in the living room. G.M. told her mother that defe ndant was a pig and that he had pulled off her pants and underw ear and done “something bad.” Her mother told her not to cry and hug g ed her. G.M. admitted that she was cry ing “a littl e.” Then G.M. drew a picture of what had happened, a nd her mother ripped up the pi cture and threw it in the g arba g e. L ater that day
, her mother called the police, and G.M. spoke t o a m an an d a

woman. G.M. could not reme mber whether she spoke to the man and woman in Spanish, but she testified that the Spanish wor d for vag ina is “ cosita,” that a “cola ” is “a man,” a nd that she ca lled her butt “na lga s.” ¶ 11 At the end of her direc t examination, G.M. testified that, afte r defe ndant place d his pe nis into her butt, she felt “something hot” and sticky
, and she felt pain. She felt his penis g oing into her buttocks. When he licked her private parts, she could fee l his tongue g oing into her. ¶ 12 During cross-e x amination, G.M. testified that she d i d n o t re m ember when de fenda nt

came to live with them and she called him “Jaime” not “dad.” There wer e two rooms in their home: a kitchen and a l i v i n g room. When she went to sleep, she wore her clothes, not pajamas. She did not observe her mother and defe ndant fighting, and defe ndant never hit her. Although d ef

en d ant hurt her during these incidents, she did not yell or cry

. She did not

reme mber when police officer s came to speak with her, but she di d reme mber speaking to prosec utors this morning. ¶ 13 A.M., the victim’s mother, testified t h at s h e wa s 3 2 y ea rs old, that she was born in Mexi co and that she speaks Spanish. A.M. testified through a Spanish interpret er

. In Dec ember 2007, she had been dating defe ndant for almos t fi ve year s, and they lived in a house in Cicero with her four children. Def endant was the fath er o f h er two young est children, but he was not the fathe r of G.M. or G.M.’s older brother. Def endant worke d, and A.M. stayed at home to car e for the children. As a result, i t wa s ra re for her to leave defe ndant alone w ith the children. ¶ 14 A.M. testified that their house in Cicero had two bedrooms, a living room and a kitchen. On S u n d ay , Dec ember 2, 2007, except for G.M.’s oldest brother, the entire family was sleeping on a mattress on the floor of the living room beca use the heate rs in the other rooms

wer e not working

. On that Sunday morning
, A.M. woke up beca use G.M.’s baby brother was cry ing, and A.M. went to the kitchen to fix him a bottle. G.M. followed her into the kitchen, and A.M. observe d that G.M. was “ner vous, worrie d, afr aid, and she had tear s in her eyes.” A.M. asked what was wrong , and G.M. said that she wanted to tell A.M. something but she did not want A.M. to be angry with he r. They started to ta lk, and G.M. said “ ‘ Mama, your boy friend Jaime is dirty . He’ s a pig .’ ” ¶ 15 A.M. testified that defe ndant acte d like a stepfathe r to G .M. since she had littl e conta ct with her biologica l fathe r. A.M. was thi nking about marry ing defe n d an t , an d she believed that their relationship was fine. After G.M. called defe ndant a pig, A.M. asked her what she meant and G.M. replied that he had done “dirty things” to her. This conver sation occur red while A.M. was walking back and forth betwee n the water heating in the kitchen and the baby
, who was still in the living room. A.M. was very tired beca use the baby was not letting her sleep much. When G.M. told her that, A.M. felt like “the world was falling on top of me.

-4-Icouldn’t bre athe, a nd Istarted se eingfuzz y ,” but she ke pt talking with G.M. ¶ 16 A.M. testified that she was speaking with G .M. in Spanish and she asked G.M. to dr aw her a picture. G.M. drew a picture with two stick figures, one standing and one lying down. “The one that was standing up had this big tongue over the private parts of the one that was lying down.” G.M. said that the figure with a larg e tongue was defe ndant, and that she was the other figure. G.M. stated that he had place d his tongue in her private parts and licked her, and that he had pulled her pants down when she was sleeping

. G.M. also stated that he hurt her when h e put his penis “in the back” and moved. G.M. stated that she prete nded to be aslee p beca

use she was scar ed. G.M. used the words “cola ” and “nalg as” to describe her rea r. ¶ 17 A.M. testified that she was shaking and felt desper ate, and she did not know what to do. She told G.M. not to cry , hug g ed her, and told her it was not her fault. A.M. was cry ing, and she felt like it was her own fault beca use she had g one to thera

py for her depre ssion, and she had never left G.M. alone with defe ndant befor e. A.M. asked G.M. to forg ive her, and G.M. said no mom, it was not your fault, it was d ef endant’ s fault. During this conver sation, defe ndant was still fast asleep on the m attress. G.M. h ad n ot told A.M. about these events for two months. G.M. said that they had happene d when A.M. h ad l eft the house to g o to thera py , to pick up money

from G.M.’s f

ather and to buy

milk for the baby

. ¶ 18 A.M. testified that she did not have a telephone in the house or a vehicle and her c ellular phone wa s out of service . At some point during the day , A.M. woke up defe ndant and told him that G.M. had said “something very serious.” At first, he denied it. Howeve r, eventua lly he admitted that he licked G.M.’s “nalg as” or rea r, but he denied having place d his penis in her anus. Def

endant stated that, if they stayed toge th er “who knows if this will happen
ag ain,” a nd he ac ted “like it was no bigdeal.” A.M. had a small tape recor der in the house and she tried to rec ord the conver sation. L ater she g ave the tape casse tte to the police and she

never had an oppor

tunity to determine if she was succ essful. ¶ 19 A.M. wanted to hit him but she thought if she did that, he would run and the police would
not be able to nab him

. So, instead, she told him that she was g oing to buy m i l k

. She took G.M. and her other daughter with her, and she called 911 on her cellular telephone afte r she left t he ho u se. Alt houg h the cellular telephone had no service
, it could s till call 911. After the 911 call, sever al police vehicles arrived and the office rs asked her to enter a police van, since it was cold outside. After A.M. told them what had happene d, th e p o lice arr ested defe ndant and tra

nsported A.M. a

nd all four of

her c hildren to a police station. ¶ 20 A.M. testified that the next day she took G.M. to meet with a social worke r named “ Mr. Bla ck” and a woman named Maria. Whil e they wer e speaking
, A.M. waited in another room

1 with her other

children. At some point, A.M. rece ived some letters f rom defe ndant, whose handwr iting she rec og nized. Although she rea d and tore up the first ones, she did gi v e t h e last one to the State’s Attorney ’s office and it was admitted into evidence at trial. In the middle of the letter is a draw ing of a hand, and it asks G.M. to forg ive him. It states in part: “F org ive me a thousa

nd pardons.” ¶ 21 On cross-examination, A.M. testified t hat defendant worked but he did not want A.M.

T he s oci al worker’s la stname was act ual ly “Pl ach ” no t “ Bla ck.” 1

-5-t o wo rk o utside the home. Sometimes there was not enough money , so G.M.’s biological

fathe r would occa sionally provide money

. In October 2007, G.M. had a party for her eighth b irthday
, but G.M.’s bi ologic al father did not attend. Ex cept for her oldest son, t h e fa m i l y had been sleeping toge ther in the living room for almost five months beca use the furna ce was not working

. They had moved to this house in August 2007 befor e the children started school, and the f

urnac e had stoppe d workingright after they moved in. ¶ 22 A.M. testified that her mother lived with them befor e they moved and, thus, when A.M. attended h er prior thera

py sessions for depre ssion, A.M.’s mother watche d the children. Howeve r, her mother did not move with t h em t o t h e n ew place

. As a result, A.M. left the children with d ef

en dant, but this happene d only twice: once when she went to a thera py session; and once when she went to buy milk. She did not rec all the exact date of this thera py session, but the therapy

lasted only three months a nd the last session was in O ctober 2007. Then two months went by
, and G.M. told her what happene d in Dec ember 2007. When A.M.

wen t t o h er l as t thera

py session, defe ndant insisted that she take her oldest son with her beca use “he has a rea l short fuse.” Her oldest son wa s t h en n i n e y ear s old. She did not

reme mber exactly when that last session started, but usually her sessions started betwee n 5 and 7 p.m. The second time she left d ef en d an t wi t h the children, her oldest son also went with her. It was at night, and they walked thr ee bloc ks to purchasemilk. ¶ 23 A.M. testified that, when it is cold, G.M. wea rs a pajama top and her pants to bed. On the morning of Decembe r 2, 2007, she woke up early
, when it was still dark outside and went
to the kitchen. When G.M. drew a picture, it made A.M. so angry that she ripped the picture into littl e piece s. After G.M. spoke to her, A.M. went to her bedroom to retrie ve a tape

rec order out o f a dra we r b eca use she wanted to secr etly rec ord defe ndant. She observe d a

casse tte in the rec order with a littl e space left on the tape. When the kids we re l i t t l e, she tap ed them “cr

ying or laughing or saying a funny word.” About a day or two befor e G.M. told her what happe ned, she w anted to be hug g ed, kissed and c lose to her mother ; she was actinglike a much young er c hild. ¶ 24 The parties then stipulated that the microca s s et t e re co rd er contained no discerna ble voices a nd had just the sound of a ba by cry ing. ¶ 25 The State’s next witnes s , M ar i a S al y n as , testified that she worke d for Resur rec tion Be haviora l Hea lthcare
, in both the fi n an cial depar tment and as a Spanish interpre ter for Thomas P l ac h

. P l ach is a licensed clinical social worke r and the direc tor of the Proviso 2 Child Advoca cy Center, which is also part of Re surre ction Be haviora l Hea lthcare

. Marina Ace vedo is a case manag er at Resurre ction. Resurre ction had provided Saly nas with formal training to act as an interpre t er and, prior to Dec ember 2007, she had translated over 100 interviews. Ty

pically
, she meets the pare nts and the child in a play room, and then Plach would introduce her. S h e wo u ld then play with the child for a few minutes and ask basic questions, such as the child’s ag e and school, to make sure that the child is not afr aid to talk
to her. At so me point, Plach asks the child to acc ompany him and Saly nas into a separ ate
room, which has a two-wa y mirror, allowing others to obse rve the interview without being

I n the r eco rd, Mr . Pl ach ’s name is m is spe ll ed a s “ Mr . Bla ck.” 2

-6-observe d.

¶ 26 Saly

nas testified that, on Dec ember 3, 2007, she translated an interview betwee n Plach and G.M. in the interview room, which was observe d by police office rs on the other side of the two-wa

y mirror. The three of them sat down at the child-size table in the room, and Plach asked the questions while she translated his que stions exactly

. At first, Plach asked neutra l questions to start the child talking, such as when was the child’s birthday and was there cake

. He also asked her wher e she lived and how she trave led to the interview. G.M. stated that she lived with her mother, her brothers and her sister, and that the police had transporte d her to the interview

. ¶ 27 S al y

n as testified that Plach then asked the eight-year -old G.M. a series of questi o n s designed to de termine whether G.M. understood the differ ence betwee n the truth and a lie. For example, he showed he r a picture of two children sitti ngin a room with a c at, and told her that one child say s i t i s a ca t an d one say s it is a fire eng ine. Then Plach asked which child was telling the truth. G.M. was able to understand the differ ence betwee n the truth and a lie. ¶ 28 Saly

nas testified that, at some point, Plach asked G.M. if someone has done something bad to her, and she said yes. G.M.’s initial re sponse was silence, and she looked around, as though she was afra id of t alking

. Plach asked her if police had c ome to her house
, and she said yes and that her mom had called them. When the police arrived, she had to g o outside. Plach asked her a second time if so m eo ne had hurt her, and this time she said yes. Plach asked her if she would like to draw some pictures, and she said yes. G.M. drew a box
, which she identified as a be d, and dre w her self lying on the bed and also standing beside it. Af ter G.M. drew the picture, Plach asked her ag ain if she was hurt, and G.M. said yes and pointed betwee n the leg s of the figure lying on the bed. She said i t h appene d at her home, and the
person who had hurt her was a big boy

. She finally stated that it was an adult named “Jaime.” ¶ 29 Saly

nas testified that G.M. was then asked to r etrieve two anatomica lly corr ect g irl and boy cloth dolls from a cabine t. G.M. place d the g irl on the cente r of the table and the boy doll

on the side. When asked, G.M. was able to corr ectly identify body parts on the dresse d dolls, such as eyes and ear s, and t o i d en tify their function. She corr ectly answe red that the pants

wer e “up.” Then she was able to remove the clothes and to identify corr ectly when the pants

wer e “down.” G.M. stated that, when she was hurt, her pants wer e down. When Saly nas was asked a bout G.M.’s use of the word “ cola” at trial, she testified a s follows:
“ASSI STANT STATE’S ATTORNEY [ AS A] : Did you conver se with her and communicate w ith her in Spanish?
SALYNAS: Yes. ASA: Did she have a spec ific word that she ref err ed to as ‘c ola’?
SALYNAS: Yes. ASA: What did s he point out when she sa id that?
SALYNAS: In the bac k of the doll.” Saly nas was also asked about G.M.’s use of the Spanish word “nalg as,” and she testified as follows:

-7-“ASA: Did eve r [ sic ] she ever use nalg as?
SALYNAS: Yes. ASA: What did s he use that word to describe?
SALYNAS: The ba ck.
ASA: The bac k or the butt?
SALYNAS: The ba ck or the butt.”
G.M. stated that she was hurt in both the front and the back. When asked what J aime did, G.M. thrust her own hips ba ck and f orth, and she sa id it hurt. ¶ 30 S al y

n as t es t i fi ed that G.M. said that she was hurt by the “poya” or penis, and s h e

corr ectly identified the penis on the male doll. G.M. also stated that J aime licked her on the front. At some point, when J aime was thrusting, she felt something “y ucky” come out. G.M. said that J aime asked her to use her mouth but she did not. These acts occur red in the living
room, and her mom had left the house to buy milk. J aime hurt her twice, and no one else had hurt her. There was no arguing in the house and no one was hit. The entire interview lasted approximately

an hour. ¶ 31 On cross-e x amination, Saly nas testified that G.M. said that her fathe r was at her birthda y party

. Also, the first time G.M. was a sked if she f elt any thing c ome out of the boy ’s penis, she said no; then she w as aske d ag ain, and she chang ed her answe r. ¶ 32 The State’s final witness, Carlos Palomar, testified that he had been a police office r with the Cicero police depar

tment since 1999 and that he was now assig ned to the patrol division, but back in 2007 he had been assig ned to the detec tive burea u. Palomar speaks both Eng lish and Spanish, and he testified at trial primarily about sever al statements that he obtained from defe ndant, both orally and later ty ped out by Palomar and signe d by defe ndant. We describe the statements in detail below to show the ir consistency over time. ¶ 33 Palomar testified that, on Dec ember 2, 2007, he was assig ned to investigate G.M.’s ca se with his partne r, Detec tive Matthew Ramirez, who did not speak Spanish. When they arrived at G.M.’s home, the responding office r, Offic er Calderon, briefe d them about the incident. C al deron took defe ndant into custody and transporte d him to the police station, wher e Palomar questioned him in Spanish in an interview room. Def endant did not speak Eng lish. Palomar first spoke to defe ndant at 1:09 a.m. on December 3, while defe ndant was handcuf fed a nd Palomar’s pa

rtner w as also pre sent. ¶ 34 Palomar testified that he ex p l ai n ed t h e n at u re of the investigation to defe ndant and
prese nted him with a p reprinted Miranda -rights waiver form in Spanish which defe ndant signe d. Def

endant stated orally that he lived with A. M

. and her four children. Two of the children wer e also his. On “the night in question,” two of the children, G.M. and Y.M., wer e left in his car e, when his g irlfriend left to coll ec t s o m e money that was owed to her. Def endant a nd the two childre n wer e on a mattress in the living room watching Rambo on television. The children started dozing off, so he switched off the set and tried to g o to sleep, but he could not fa ll asleep. G.M. wa s in the middle, with Y.M. on one side and def endant

on the other. Def

endant turned toward G.M., remove d her underpa nts and started to lick her

anus. He then bec ame e rec t and inserted his pe nis into her anus. Once he felt he was g oing

-8-to climax , he deposited his sper m on her buttocks and on the mattress. ¶ 35 Palomar testified that defen d an t s t at ed that, the next night, A.M. went to a counse ling session and he was ag ain left with the car e of th o s e two children and “the same thing”

occur red. Ag ain t hey fell asleep at ab o u t 8 p.m. and he did not. Ag ain he remove d G.M.’s underpa nts and licked he r anus. ¶ 36 Palomar explained that he did not interview G.M. beca use the interview of a child, which is called a “VSI ” or “Victim S ensitive Interview ,” had to be handled by a li cense d clinical social worke r. Palmomar schedule d a VSI for G.M., and ty ped out defe ndant’s oral statement in Spanish. After ty

ping out the statement, he prese nted the ty ped statement to defe ndant who

rea d it o u t l o u d i n front of Palomar. Although Palomar informed defe ndant that he could make corr ections, he did not do so. Def endant’ s ty

pewr itten statement was introduced as an exhibi t and Palomar tra

nslated it for the jury

. ¶ 37 The ty

ped statement was sub s t an t i al l y t h e s am e as the oral statement about which Palomar had alre ady testified, except that it related the following additional information. In the ty ped statement, which was dated Dec ember 3, 2007, defe ndant stated that the first i n ci d en t occur

red “thre e wee ks prior on a Wednesday .” A.M. left at 5 p.m. and was go n e until 11 p.m. He inserted his penis in G.M. for two minutes and, a fter he ejac ulated on her buttocks, he retri ev ed a ro s e-colored robe from the bathroom and used it to wipe up the

semen from G.M. and the mattress. G.M. never woke up, moved or made a noise during this whole time. Wit h respe ct to the second i n ci d en t , A.M. left for her counseling session at 7
p.m. During this second incident, he put his tongue in G.M.’s anus, licking it twice, and then he fell aslee p. He stated that he believed t hat “his actions were caused by the devil g etting inside” him and that he neede d psycholog ical help. These two i n ci d en t s wer e the only incidents of inappropriate behavior toward G.M. and he did not sexu al l y ab u s e any of the other c hildren in the household. ¶ 38 Palomar testified that, late r on De cembe r 3, 2007, he tra nsported G.M. and her mother
to the victim sensitive interview beca us e they lacke d transportation, and he observe d the interview in an adjac ent room through a two-wa y mirror. On Dec ember 4, 2007, Palomar spoke ag ain with defe ndant for about an hour at the Cicero police station, in the prese nce of Detec tive Ramirez, Assistant State’s Attorney Geor g e Samuel, and Detec tive Corina Flore s. Detec tive Flore s, who is bilingual, p re s en t ed defe ndant with a preprinted Miranda -rights waiver form in Spanish, which he signe d. Palomar ag ain ty ped up defe ndant’s statement in Spanish and prese nted it to defe ndant so that he could revie w it and mak e an y n ec es sary

corr ections. Def

endant did not make any corr ections and signe d this second ty ped statement. ¶ 39 Palomar then translated defe ndant’s second ty ped statement into Eng lish for the jury
, as follows in releva

nt part: “[Defe ndant] was prese nted a Polaroid photo of victim [G.M.] And that he identified that as the da

ug hter of his g irlfriend [A.M.], and ag ain, indicated by putting his initials

on the phot o. [Defen d an t ] then related t hat he lives with his g irlfriend [ A.M.] and two children from a prior relationship named [G.M.] and [M.M .] He also related that he has
two children with her named [J .M.] and [Y.M.]
, an d ev ery body lives toge ther on the second f loor of [address].

-9-[Defenda nt] then related, [a] bout three wee ks ag o on a Wednesday
, he was left in the

car e of the victim [G.M.] and his six -month-old son [Y.M.] while his g irlfriend went to

run an e rra

nd over some mone y

that was owe d. [Defenda nt] t h en re l at ed that [A.M.] left about 5:00 p.m. in the afternoon, and she

was g one until about 11:00 p.m. Def endant then rela

ted that around 8:00 p.m. in th e afte rnoon, he say s that [Y.M.] and [G.M.]
, they wer e on a mattress in the living room and they wer e watching TV. He rec alls it being the movie Rambo

. [Defenda nt] then related th at h e was closer to the door. [G.M.] was in the middle, and [Y.M.] was near the window. [Defenda

nt] then turned off the television and then beg an to fall aslee p with the kids. Then [defendant] [ sic ] then said, I couldn’t fall aslee p at this moment. [Defenda nt] related that he g ot closer to [G.M.] and pulled down her p ants and her underpa nts and beg an to lick the anus of

[G.M.] [Defenda nt] then related that he beg an to become ere ct and inserted his pe nis in the

anus of [G. M

. ] [ Def

endant] then related that this lasted about 2 minutes. [Defenda nt]
t h en related that as he felt the sensation of climaxi ng , he remove d his penis from [G.M.’s] anus and the n deposited his sperm on his [ sic ] buttocks and then ag ain on the
mattress. [Defenda

nt] then related that [G.M.] never woke up, and she never moved and she neve r made a noise. [Defenda nt] then related that later he grabbed a robe of his g irlfriend’ s [ sic ] rose colore d
, an d t hen beg an to wipe the sperm from her buttocks, from the buttocks of [G.M.]

. [Defenda nt] was then questioned about the second incident. [Defenda nt] related that it was the following ni ght. He related that his g irlfriend [A.M.] had *** left him in the

car e of [G.M.] and his son [Y.M.] [Defenda nt] also rela

ted that his g irlfriend ha d g one to a thera py session, somewher e in the are a of Cermac k and 54th Avenue
, and he rec alls the time being around 7:00 p.m. [Defenda nt] then related that he along with [G.M.] and [ Y.M .] went to sleep around 8:00 p.m. on the same couch on the floor o f t h at ro o m

. [Defenda nt] then related he lowere d the pants and the underpa nts of [G.M.] and place d his tongue in the anus of [G.M.]
, licking her twice. [Defenda nt] then related that he lifted up the pants and he r under pants and fe ll asleep.” ¶ 40 On cross-e x amination, Palomar testified that, afte r he arrived at the house on Dec ember 2, 2007, the victim’s mother was instructed to take the victim to the hospital but he does not know whether she did. Palomar di d n o t call the para medics or take any piece s of clothing from the house, si nce the victim’s mother had told them the i n ci d en t had occurre d a week

earlier and she informed them that she had done the laundry since then. After defe ndant told him that he had clea

ned up his sperm with his g irlfriend’ s bathrobe
, he asked about the robe and A.M. told him that she had alre ady washe d it. Howeve r, he did not look at the mattress, he d i d n o t asce rtain whether the mattress was cover ed by a sheet, and no evidenc e technicia ns came to look at the mattress. ¶ 41 Palomar further testified on cross that he ty ped out A.M.’s statement but he did not show it to her beca

use he had ty

ped it out in Eng lish. His repor t indicated that A.M. told him that she woke up at 5 a.m. on De cembe r 2, 2007, and she woke de fenda nt at 5:30 a.m.

-10-¶ 42 After hearing closing arguments and jury instructions, the jury found defe ndant guilty on

all three counts of preda

tory criminal sexual assault ag ainst G.M. At the sentenc ing hearing

on April 11, 2011, afte r hearing fac tors in mitigation and ag gravation, the trial court sentenc ed defe n dant to 3 consec utive 6-year sentenc es for a total of 18 year s with I DOC. Def endant f iled a timely

notice of a

ppeal on April 11, 2011, and this appeal followe d.

¶ 43 ANALYSI S ¶ 44 On this direc t appea l, defe ndant claims: (1) that the trial court err ed by failing to instruct the jury with IPI Criminal 4th No. 11.66, which is require d whene ver a trial court admits into evidenc e a c hild’s se x ual-a ssault outc ry statements pursuant to se ction 115-10 of the Code of Criminal Procedur e of 1963 as an exception to the hear say ru l e (725 I L CS 5/115-10(c) (West 2006)); and (2) that he is entitled to an additional day of cre dit for time serve d, which the State conce des. For the following rea sons, we aff irm defe ndant’s conviction but order the mitti mus corre cted to re flec t an additional day of cr edit for time ser

ved.

¶ 45 I . The He arsa y Ex ception ¶ 46 Section 115-10 of the Code of Criminal Procedur e of 1963 permits the State to introduce “[i] n a prosec ution for a phy sical act or sexual act perpe tuated upon or ag ainst a child under the ag e of 13” the followingtestimony : “testimony of an out of court statement made by the victim describing any complaint of such act or matter or detail perta ining to any act which is an element of an offe nse which is the subject of a prosec ution for a sexual or phy sical act ag ainst that victim.” 725 I L CS 5/115-10(a) (2) ( West 2006). ¶ 47 This testimony may be admitted into evidenc e only if (1) “[t] he court finds in a hearing conducte d outside the pres en ce of the jury that the time, content and circ umstances of the
statement provide sufficie nt safe gu ar d s o f reliabili ty”; (2) the child testifies at the
proce eding
, or the child is unavailable and there is other corroborating evidenc e; and (3) the
statement wa s made e ither befor e the victim turned 13 year s of ag e or w ithin three months of the offe nse. 725 I L CS 5/115-10(b) (West 2006). In the case at bar, (1) the trial court held

a hearing; (2) the child testified at the proce eding ; and (3) the statement was made befor e the victim turned 13 year s of ag e.

¶ 48 I I . The Require d Jury Instruction ¶ 49 Section 115-10 further provides that, if the trial c o u r t a dmits a hear say statement pursua nt to this ex ception, the tria l court must specifica lly instruct the jury

that:
“i t i s for the jury to deter

mine the weight and cre dibilit y to be given the statement and that, in making the deter

mination, it shall consider the ag e and maturity of the child, *** the nature of the statement, the circ umstances under which the statement was made, and
any other re levant fa ctor.” 725 I L CS 5/ 115-10(c ) (West 2006). ¶ 50 I PI Criminal 4th No. 11.66 was designed to implement the above statutory require ment, and it states:

-11-“ Y o u h a v e befor e you evidenc e that

______ made statements conce rning the offe nse s charg ed in this case

. It is for y ou to deter mine whether

the statements we re ma de, and, if so, what weight should be g iven to the statements. In making that deter mination, you should consider the ag e and maturity of ______, the nature o f the statements, and the circ umstances unde r which the statements wer e made .”
As stated above, there is no dispute that this instruction was require d in this case , that it was

n o t gi v en , an d t hat the defe nse counsel failed to ask for it. See Sargent
, 239 I ll. 2d at 190 (“the re is no d i s p u t e that the jury should have been instructed in acc ordanc e with section 115-10(c )”)

.

¶ 51 I I I . Rules GoverningReview of I nstructions ¶ 52 Supreme Court Rules 366(b)( 2)(i) and 451(c) g o v ern t h e ap p el l at e re v i ew of jury instructions in I llinois

. I ll. S. Ct. R. 366(b)( 2)(i) (ef f. Fe b. 1, 1994), R. 451(c) (ef f. J uly 1, 2006 ). S up re m e Court Rule 366(b)( 2) provides: “No party may raise on appea l the failure
to g ive an instruction unless the party shall have tender ed it.” I ll. S. Ct. R. 366(b)( 2)(i) (ef f. Fe b. 1, 1994). In addition, the I llinois Supreme Court has he ld, specifica lly with respec t to jury instructions, that “a de fenda nt forfe its review of

any supposed jury

instruction error

if he [(1)] does not object to the instruction or offe r an alterna tive at trial and [(2)] does not raise the issue in a posttrial motion.” People v. Piatkowski
, 225 I ll. 2d 551, 564 (2007) (citing People v . Herron , 215 I ll. 2d 167, 175 (2005)); see also Sargent , 239 I ll. 2d at 188-89. ¶ 53 Howeve r, Supreme Court Rule 451(c) softens the otherwise harsh forf eiture ef fe ct o f Supreme Court Rule 366(b)( 2)(i) by permitting some limit ed revie w, even when a defe ndant has failed to raise the instruction err or at trial or in a posttrial motion. Piatkowski
, 225 I ll. 2d
at 564 (Rule 451(c) permits some “limited” revie w, despite a party ’s forf eiture)

. Specifica lly
, Rule 451(c) states that “substantial defe cts” in criminal jury instructions “ar e not waived by [a party ’s] failure to make timely objections *** if the interests of justice require .” I ll. S. Ct. R. 451(c) ( eff

. J uly 1, 2006). ¶ 54 The I llinois Supreme Court has explained that the purpose b eh i n d Ru l e 4 5 1 (c ) is to permit a revie wing court to corr ect (1) “grave err ors” and (2) “er rors i n case s so fac tually close that fundame ntal fairne ss require s that the jury be prope rly instructed.” Sargent
, 239 I ll. 2d at 189. See also Piatkowski
, 225 I ll. 2d at 564; Herron
, 215 I ll. 2d at 175. The supreme court has also held that Rule 451(c) is “coe x tensive” with the plain err or rule, and that “the
two rules are construed identically .” Piatkowski
, 225 I ll. 2d at 564. See also Sargent
, 239 I ll. 2d at 189, Herron , 215 I ll. 2d at 175.

¶ 55 IV. Plain Error Rule ¶ 56 Def

endant ar gu es t h at t h e t ri al court committed plain err or when it failed to g ive the require d instruction or, in the alternative, that his trial counsel was ineffe ctive for failing to tender it. W e will discuss plain err or first. ¶ 57 The plain err or rule permi t s a revie wing court to consider an unprese rved error whe n: “(1) a clea

r or obvious er

ror occur red and the evidenc e is so closely balanc ed that the err or

-12-alone threatened to tip the scale s of justice against the defe ndant, reg ardle ss of the

seriousness of the e rror , or (2) a cle ar or obvious error

occur red a nd that err or is so serious that it aff ecte d the fairne ss of the defe ndant’s trial and challeng ed the integ rity of the judicial
proce ss, reg ardle ss of the closene ss of the evidenc e.” Piatkowski
, 225 I ll. 2d at 565. See also Sargent , 239 I ll. 2d at 189; Herron , 215 I ll. 2d at 186-87. ¶ 58 The first step in applying the plain err or rule is to deter mine whether “a clea

r and obvious

err or” occurre d

. Sargent
, 239 I ll. 2d at 189-90. See also Piatkowski
, 225 I ll. 2d at 565; Herron
, 215 I ll. 2d at 191. I f there was no clea r and obvious err or, then neither prong of the
test can be satisfied. Sargent
, 239 I ll. 2d at 189-90. Def endant bear s the burden of persua sion in showing both that a clea r and obvious e rror exis ts a nd that one of the prong s is satisfied. S a r g en t , 239 I ll. 2d at 190; Piatkowski
, 225 I ll. 2d at 566 (“de fenda nt must m ee t h i s burden” ); Herron , 215 I ll. 2d at 186-87 (“de fenda nt must show both”). ¶ 59 Our task in deter mining “cle ar and obvious err or” has been simpli fied by the fac t that the
supreme court has alre ady held that the failure to g ive the instruction as require d by section 115-10(c ) of the Code of Criminal Procedur e of 1963 is “a clea r and obvious err or.” Sargent
, 239 I ll. 2d at 190. There is no dispute on appea l that the instruction was require d and that it was not g iven, so we pr ocee d to analy ze the individual prong s of the plain er ror r ule. ¶ 60 Def

endant states in his reply brief to t h i s co u rt t h at h e does “not argue that this error qualified for revie w as second- prong plain err or.” Thus, per his reque st, we will revie w the

err or only under the first, or “c losely balanc ed,” pr ong , of the plain e rror rule.

¶ 61 V. The Me aningof “Closely Ba lance d” ¶ 62 Be fore we can deter mine whether the evidenc e at trial was closely balanc ed, we must fir st deter mine what evidenc e we may place on the scale s to deter mine whether they wer e closely balanc ed. The question is whether we may place on the s cale s the very hear say st atements that wer e at issue in the jury instruction. ¶ 63 Def

endant argues that we may not. In h i s b ri ef to this court, defe ndant arg ues that the evidenc e on the mouth-to-anus counts was closely balanc ed beca use on the prosec ution side of the scale is the fac t that defe ndant co n fe s s ed in a statement to police that he licked the victim’s a nus, but on the other side of the scale are the fac ts that the victim testified at trial that defe ndant licked only her vag ina, not her anus, and that there was no phy sical evidenc e. Def endant thus argues that it was the hear say outcry statement that tipped the scale s ag ainst him, and cause d the jury

to convict him on the two mouth-to-anus counts. ¶ 64 In contra st to defe ndant, t he S tate asks us to consider the hear say outcry statements on the prosecu t i o n s i d e of the scale
, arguing that this outcry corr oboration was part of the evidenc e that made the State’s case ag ainst defe ndant overwhelming. People v. Lara
, 2012 I L 112370, ¶¶ 17-18, 32, 36, 39 (cor roboration of a defe ndant’s confe ssion does not require direc t corr oboration, such as a victim’s testimony or phy sical evide nce, but may be shown by circ umstances tending to establish the cr i m e an d the defe ndant’s identity as the
perpe trator)

. ¶ 65 I n S

a r g en t , t h e supreme court did consider the hear say outcry sta t em en t s o n t h e prosec ution side of the scale

. We know that the court place d them there beca use the court

-13-stated: “[d] efe ndant’s confe ssion and the statem ents made by J .W. and M.G., when taken

toge ther, overwhelming ly established defe ndant’s guilt.” Sargent
, 239 I ll. 2d at 190. Although J .W. testified at trial about the abuse , M.G. testified that he did not re member it. Sargent
, 239 I ll. 2d at 171, 174. Thus the only statements by M.G. that the supre m e court could have been ref

erring to wer e his hear say outcry statements. Although the Sargent court considere d the hear say outcry statements when weighing the prosec ution’s case , whether or not they should have been so weighed was appar ently not an issue bef o re t h e co u rt. The court’s opinion contains no analy sis of the issue and no holding conce rning it. The only way we know that the statements wer e eve n included on the pr osecution si de of the scale is the

s i mple place ment of the initials “M.G.” befor e the word “stateme nts” in the court’s conclusion. ¶ 66 Although the Sargent court considere d the hear say outcry statements when weighing the
prosec ution’s case , whether or not they should have been so weighed was appar ently not an issue befor e the court. The court’s opinion contains no analy sis of the issue and no holding

conce rning it. The only way we know that the statements wer e even included on the
prosec ution side of the scale is the simple place ment of the initials “M.G.” befor e the word “stateme nts” in the court’ s conclusion. ¶ 67 This issue was appar ently not be fore the Sargent court and, as we previously observe d, there is no published opinion discussing this holding in Sargent

. Thus, this is an issue of first impression. We consider below the eff ect of the jury instruction error and how it aff ecte d the scale s of justice in this case. ¶ 68 When we evaluate the eff ect of a jury instruction err or, we consider the jury instructions “as a whole,” rather than considering the err or “in isolation.” People v. Parke r , 223 I ll. 2d 494, 501 (2006). The question for us is “whe ther the instructions, taken as a whole, fairly
, fully
, and comprehensively apprised th e jury of t he relevant lega l principles.” Parker
, 223 I ll. 2d at 501. We will find the instructions sufficie nt, if as a whole, the series of instructions fully and fairly provided the appli cab l e l aw

. Parker
, 223 I ll. 2d at 501. The err oneous omission of any one jury instruction “rises to the level of plain err or only when the omission

cre ates a serious risk that the jurors incorre ctly convi cted defe ndant beca use they did not understand the applicable law.” Sargent , 239 I ll. 2d at 191. ¶ 69 In Sargent
, when the supreme court reje cted the defe ndant’s second- prong argument, the
court observe d that “the jury in this case was not left without direc tion reg arding how it was to approa ch the victim’s statements,” beca use the jury had rec eived an instruction based on I PI Criminal 4th No. 1.02. Sargent
, 239 I ll. 2d at 192. In the ca se at ba r, the trial court also provided an instruction based on I llinois Pattern Jury Instructions, Criminal, No. 1.02 (4th ed. 2000) ( here inafter , I PICriminal 4th No. 1.02), which stated: “Only you are the judge s of the believability of t h e wi t n es s es and of the weight to be
g iven to the testimony of eac h of them. In considering the testimony of any witness, you may take into acc ount his ability and opportunity to observe
, his age, h i s m em o ry , his

manner while testifying, any interest, bias, or prejudice he may have
, and the

rea sonablene ss of his te stimony considere d in the light of a ll the evidence in the case .” The above i nstruction does di ffe r from the m i s s i n g i n struction. For example, althoug h the

-14-above instruction allows the jury to consider a witness’s “ag e,” it does not direc t the jury to

also consider

the witness’s “maturity ,” like the missing instruc tion does. ¶ 70 The Sargent court found that, althoug h “the languag e in [I PI Criminal 4th No. 1.02 and I PI Criminal 4th No. 11.66] differ s, they convey simil ar principles reg arding the jury ’s role in assessing witness cre dibility and the various criteria jurors may consider when making that assessment.” Sargent
, 239 I ll. 2d at 192. The Sargent court appea red to hold, in e ffe ct, that when deciding whether the evidenc e was closely balanc ed for purposes of plain err or revie w,

a re viewingcourt may

place the hea

rsay outcry statements on the prose cution’s side of the scale
, if the trial court had cautioned the jury about a witness’s “ag e” in an instruction based

on I PI Crimina l 4th No. 1.02, althoug h it had err oneously omitted I PI Criminal 4th No. 11.66. ¶ 71 As our supreme court also stated, “we do not mean to sug g est that [t rial] courts have the discretion” to exchang e one inst ru ct i o n fo r another ; rathe r, we conclude only that we may consider the hear say outcry statements on the prosec ution’s side of the scale as we deter mine whether the evidenc e wa s closely balanc ed for purposes of plain err or re view and whether the omitted instruction was the err or that tipped the scale s of justice ag ainst defe ndant, in light of the fac t that a simil ar, though not ide ntical, instruction w as g iven. Sargent
, 239 I ll. 2d at 194.

¶ 72 VI . Not Closely Ba lance d ¶ 73 For the reasons discussed below
, we d o n o t find persua sive defe ndant’s argument that the evidenc e was closely balanc ed on the two mouth- to

- a n u s c o u nts

. First, defe ndant’s sexual assaults on G.M., in g ener al, wer e proven by : ( 1) G.M.’s testimony at trial; (2) he r hea

rsay outcry statements to both her mother and a social worke r, as translated by a Spanish interpre ter; (3) defe ndant’s admission to A.M.; and (4) defe ndant’s subsequent statement to the police. Specifica lly
, with respe ct to mouth-to-anus contac t, although the victim testified
at trial t h at d ef

en d ant licked her vag ina but not her anus, defe ndant admitted both to the police and to A.M. that he licked G.M.’s anus. Our conclusion is simil ar to that of the
supreme court in Sargent
, wher e the court found that the defe ndant’s confe ssion conce rning M.G., plus M.G.’s hear say outcry s tatement, cre ated “over whelming [ ]” evidenc e of the defe ndant’s guilt with respe ct to M.G., even though M.G. at trial testified that he could not

reme mber. Sargent
, 239 I ll. 2d at 171, 190. As the supreme court did in Sargent
, we conclude that the evidenc e was not c losely balanc ed, and thus the err or, althoug h clea r and obvious, did not rise to the level of plain er ror.

¶ 74 VI I . Not Ineff ective A ssistance ¶ 75 Def

endant argues, i n the alternative, t hat hi s trial counsel was ineffe ctive for failing to tender the require d jury

instruction. For the rea sons expl ained be low, we c onclude that the

err or did not cre ate the substantial prejudice require d for an ineffe ctiveness claim to succe ed. It will be the rar e case indeed wher e a court finds that the evidenc e was not closely balanc ed in a plain err or analy sis, but then proce eds to find that the same err or cre ated the substantial prejudice require d for a

n ineffe ctiveness c laim.

-15-¶ 76 I llinois courts evaluate a claim of ineffe ctive assistance of counsel under the two-prong

test set forth by the United States Supreme Court in Strickland v. W ashington
, 466 U.S. 668 (1984). People v. Hende rson , 2013 I L 114040, ¶ 11 (citing People v. Ramsey
, 239 I ll. 2d 342, 433 (2010), and People v. Albanese
, 104 I ll. 2d 504, 526 (1984))

. Under this test, a defe ndant
must show both: (1) that hi s o r h er co u nsel’s perf ormanc e was defic ient; and (2) that defe ndant suffe red substantial prejudice as a result of this de ficient perf ormanc e. People v. Sutherland
, 2013 I L App (1st) 113072, ¶ 20; People v. Denson
, 2013 I L App (2d) 110652, ¶ 31. To establish a defic ient perf ormanc e, defe ndant mu s t s how that “counse l’s perf ormanc e fell below a

n objective standa

rd of r easona

bleness”; a

nd to establish substantial prejudice
, defe ndant must dem o nstrate that “a rea sonable probability exis ts that, but for counsel’s unprofe ssional e rror s, the result of the proce eding would have been differ ent.” Hende rson , 2013 I L114040, ¶ 11. ¶ 77 Sin ce a fa i l u re t o es t ab l i s h ei t h er p ro n g o f th e Strickland test will doom an ineffe ctiveness claim, we may evaluate the second prong first. Hende rson , 2013 I L 114040, ¶ 11; Sutherland
, 2013 I L App (1st) 113072, ¶ 20 (a defe ndant must “satisfy both prong s of the Strickland test”). “A lack of substantial prejudice is fa t al to a claim of ineffe ctive assistance .” Denson , 2013 I LApp (2d) 110652, ¶ 31. ¶ 78 In the case at bar, defe ndant did not suffe r substantial prejudice from his trial counsel’s failure to reque st the required jur y instruction wher e, as we ex plained above, t he evidence
ag ainst him wa s overwhe lming. In addition, the evidenc e of mouth-to-a nus contac t, which consisted of defe ndant’s own admissions to A.M. and to the police, was not aff ecte d by the trial court’s failure to prov i d e t h e required inst ruction. Lara
, 2012 I L 112370, ¶ 33 (direc t

corr oboration of a defe ndant’s confe ssion on the element o f p en et ration or contac t is not

nece ssary under the corpus delec ti rule). A.M. testified that defe ndant admitted to her, befor e she called the police, t h at h e h ad licked G.M.’s “nalg as,” or rea r; and defe ndant, in his
statement to the police, later confirme d that he licked G.M.’s anus. In his r eply brief to this court, defe ndant claims that both A.M. and “Saly nas repor ted that G.M. had told them that [defendant] licked her anus,” and cites portions of the rec ord in support. Howeve r, the cited portions of the re cord do not indicate that def endant licke d G.M.’s anus. ¶ 79 As a result, the specific evidenc e of mouth-to-anus contac t was not aff ecte d by the failure
to provide the require d instruction. As a result, defe ndant did not satisfy his burden to show that “a rea sonable probability exis ts that, but for counsel’s unprofe ssional e rror s, the result of the proce eding would have been differ ent.” Hende rson , 2013 I L 114040, ¶ 11. Thus, we conclude that the ineffe ctiveness claim was no more persua sive than the claim of plain err or.

¶ 80 CONCLUSI ON ¶ 81 For the fore g oing rea sons, we aff irm def en d an t ’s co n v i ction but order the mittim us

corr ecte d to refle ct an a dditional day of cr edit for time ser

ved.

¶ 82 Affir

med; mitti mus corre cted.

-16-