NO. 4-01-0765

	IN THE APPELLATE COURT

	OF ILLINOIS

	FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,

	Plaintiff-Appellee,

	v.

DONALD COOKSON,

	Defendant-Appellant.

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)	Appeal from

Circuit Court of

Sangamon County

No. 00CF1073

Honorable

Patrick W. Kelley,

Judge Presiding.

_________________________________________________________________

	PRESIDING JUSTICE McCULLOUGH delivered the opinion of the court:

	A Sangamon County jury found defendant, Donald Cookson,

guilty of predatory criminal sexual assault of a child and

aggravated criminal sexual abuse.  720 ILCS 5/12-14.1(a)(1), 12-

16(c)(1)(i) (West 1998).  The trial court sentenced defendant to 25

years’ imprisonment for predatory criminal sexual assault and

imposed no sentence for aggravated criminal sexual abuse.  The

issues on appeal are whether (1) the trial court properly excluded

evidence that the child victim had made allegations of sexual abuse

against another person that the Department of Children and Family

Services (DCFS) determined to be unfounded, (2) the trial court

committed an abuse of discretion in admitting evidence of the

complainant’s out-of-court statements pursuant to section 115-10 of

the Code of Criminal Procedure of 1963 (Code of Criminal Procedure)

(725 ILCS 5/115-10 (West 2000)), (3) the trial court erred in

finding the child complainant competent to testify, and (4) the

jury’s finding of guilty of aggravated criminal sexual abuse must be vacated because it is a lesser included offense of predatory

criminal sexual assault.  We affirm.

	Although defendant challenges the admissibility of some

evidence, he does not contest that, if the trial court properly

admitted the evidence, the jury could reasonably find him guilty of

predatory criminal sexual assault beyond a reasonable doubt.  If

admissible, the evidence would establish that defendant, who was 17

years of age or older, had anal sex with his 7-year-old stepdaugh

ter A.C. (born October 6, 1992) on two occasions between March 1

and August 31, 1999.  

	We initially consider whether the trial court erred in

finding A.C. competent to testify.  Irrespective of age, every

person is qualified to be a witness (725 ILCS 5/115-14(a) (West

2000)) unless she is incapable of (1) expressing herself concerning

the matter so as to be understood, either directly or through

interpretation, or (2) understanding the duty of a witness to tell

the truth (725 ILCS 5/115-14(b) (West 2000)).  The party requesting

a determination of the competency of a witness to testify has the

burden of proof.  725 ILCS 5/115-14(c) (West 2000).  The

determination of witness competency rests in the discretion of the

trial court and will not be disturbed on appeal absent an abuse of

discretion.  People v. Sutherland, 317 Ill. App. 3d 1117, 1125, 743 N.E.2d 1007, 1013 (2000).  This deference is given because the

trial court, unlike the reviewing court, has the opportunity to

observe the demeanor, appearance, and conduct of the witness. 

People v. Dempsey, 242 Ill. App. 3d 568, 584, 610 N.E.2d 208, 218 (1993).  

	In this case, the trial court conducted a hearing with

regard to A.C.’s competency to testify on May 21, 2001.  At that

time, A.C. was eight years old.  After listening to and observing

A.C. testify, the trial court concluded that she had the ability to

express herself so as to be understood and that she understood the

duty to tell the truth.  She testified that she did not know the

rules about being in court but stated that she would tell the truth

when she testified at trial.  She related that she had gotten in

trouble for lying in the past.  As examples of lying, she stated

that she had gotten in trouble for lying when she had, in fact, hit

her brother, and that her brother had once lied about not having a

cookie.  

	In Sutherland, the court found no basis for disturbing the finding that a six-year-old child was competent to testify when

she knew the difference between lying and telling the truth and

said she would tell the truth.  Sutherland, 317 Ill. App. 3d at 1125, 743 N.E.2d at 1013; see Dempsey, 242 Ill. App. 3d at 583-84, 610 N.E.2d at 217-18 (a nine-year-old sexual abuse victim was

competent to testify); People v. Hoke, 213 Ill. App. 3d 263, 271- 72, 571 N.E.2d 1143, 1148 (1991) (two six-year-old children were

found competent to testify).

	Defendant’s argument relies on the rules regarding

competency of a child witness put forth in People v. Epps, 143 Ill. App. 3d 636, 639, 493 N.E.2d 378, 380 (1986) (“[a] child may

testify if he is sufficiently mature to receive correct impressions

by means of his senses, to recollect and narrate intelligently, and

to appreciate the moral duty to articulate the truth”).  The Epps decision, however, predates Public Act 85-1190, which added section

115-14 to the Code of Criminal Procedure effective January 1, 1989. 

725 ILCS 5/115-14 (West 2000).  In People v. Trail, 197 Ill. App. 3d 742, 748, 555 N.E.2d 68, 72 (1990), this court interpreted the

new section as expressing a legislative intent to discard the prior

body of law dealing with witness competency, particularly the more

rigid of the former rules.  In Hoke, we reaffirmed that interpreta tion of section 115-14.  Hoke, 213 Ill. App. 3d at 272, 571 N.E.2d at 1148.  Defendant presents no valid argument for reconsidering

our prior interpretation.  We have reviewed the testimony of A.C.

at the competency hearing and conclude that the trial court did not

commit an abuse of discretion in finding her competent to testify.

	Through several witnesses, the State was allowed to

introduce out-of-court statements made by A.C. to those witnesses

concerning defendant’s anal sexual assaults on her.  These

statements were made to DCFS caseworker Dorothy Rice on January 29,

2000; A.C.’s foster parent Laverne Landers on January 30, 2000; and

DCFS investigator Timothy Gonzalez and City of Springfield

Detective Richard Wiese on January 31, 2000.  Defendant challenges

the admissibility of this testimony introduced pursuant to section

115-10 of the Code of Criminal Procedure.  The standard of review

is whether the trial court committed an abuse of discretion. 

People v. Williams, 193 Ill. 2d 306, 344, 739 N.E.2d 455, 475 (2000).

	Section 115-10(a) authorizes the trial court to admit

hearsay testimony of out-of-court statements made by children under

the age of 13 who are victims of offenses defined in sections 12-13 through 12-16 of the Criminal Code of 1961 (Criminal Code) (720

ILCS 5/12-13 through 12-16 (West 2000)).  725 ILCS 5/115-10(a)

(West 2000).  As previously noted, defendant was charged with

violating sections 12-14.1(a)(1) and 12-16(c)(1)(i) of the Criminal

Code, and he does not challenge the application of section 115-10

to this case.  Section 115-10(b) provides that testimony about such

an out-of-court statement is admissible only if (1) the court

finds, after conducting a hearing outside the presence of the jury,

that the time, context, and circumstances of the statement provide

sufficient safeguards of reliability, and (2) the child either (a)

testifies at the proceeding or (b) is unavailable to testify as a

witness and there is corroborative evidence of the act that is the

subject of the statement.  725 ILCS 5/115-10(b) (West 2000).  In

this case, A.C. testified, and defendant’s challenge to the

admissibility of the evidence focuses on the trial court’s findings

concerning the sufficiency of the safeguards of reliability.

	At the section 115-10 hearing conducted May 21, 2001, the

trial court heard the testimony of Landers, Wiese, and Gonzalez. 

Rice testified at a May 25, 2001, hearing.

	Rice testified that, on January 29, 2000, after she took

A.C. into protective custody, she took the child for a required

health screening.  The screening did not involve a gynecological

examination.  After the examination, Rice drove A.C. to the

emergency foster home.  Rice had a conversation with the child

about marijuana because there had been references to marijuana and

cocaine when she picked up A.C. at the police station.  A.C. said

defendant gave her marijuana, ran bath water, put her in the tub, and "humped on her."  She said he put his “thingy” in her butt. 

Rice had not asked A.C. any questions about sexual abuse.  A.C.

just blurted it out.  Rice never met or talked to Landers. 

	Landers, a registered nurse, testified that in response

to a general question inquiring whether everything was going okay,

A.C. said, “I am never going home.  I am never going home.  I’m not

going back to Don and Judy.  Don fucked me in the ass, and Judy ate

my pussy.”  At the time of this statement, A.C. had been sitting

and coloring at the kitchen table.  A.C. was then seven years old.

Landers did not make further inquiry of A.C. on this subject.  On

cross-examination, Landers testified that A.C. had, on other

occasions, indicated a preference to remain in the foster home.

	Wiese testified that the interview of A.C. he and

Gonzalez conducted took place in a child-friendly room at the Child

Advocacy Center.  A.C. used slang terms such as "boobs," "dick,"

and "butt" to express what occurred and stated that defendant put

his penis into her anus, pointing to the crack in the buttocks of

an anatomically correct drawing.  A.C. described two incidents, one

occurring in the bathroom and one in the bedroom. 

	When the interview began, Wiese asked A.C. if she knew

why she was there, and she stated because of something that Don and

Judy had done to her.  A.C. said that one of these incidents

occurred in a gray house and the other in a pink house.  Wiese was

not sure in which house the bathroom incident occurred.  At one

point, A.C. said that these kinds of things happened all the time,

and then later she said these were the only two times.  She did not

indicate whether defendant had ejaculated.

	Gonzalez testified that A.C. indicated she did not want

to reside with Don and Judy for what they did to her.  At that

point, A.C. was asked what they did to her.  Gonzalez's testimony

followed the same tenor as the testimony given by Wiese.  According

to Gonzalez, the incidents occurred when A.C. was six, and her

description of the instances of sexual abuse he deemed "remarkable"

for a child of that age.

	The State bears the burden of proving that the statements

were reliable and not the result of adult prompting or manipula

tion.  People v. Zwart, 151 Ill. 2d 37, 45, 600 N.E.2d 1169, 1172 (1992).  Among the factors to be considered in making a reliability

determination are (1) the child’s spontaneity and consistent

repetition of the incident, (2) the child’s mental state, (3) use

of terminology unexpected of a child of a similar age, and (4) the

lack of motive to fabricate.  People v. West, 158 Ill. 2d 155, 164, 632 N.E.2d 1004, 1009 (1994); People v. Simpkins, 297 Ill. App. 3d 668, 676, 697 N.E.2d 302, 307 (1998).  In Simpkins, this court also indicated that the court should examine whether the statement was

the product of suggestive interview techniques when there had been

successive interviews.  Simpkins, 297 Ill. App. 3d at 677-78, 697 N.E.2d at 308.                             

	Defendant raises six points of contention with the

admission of A.C.’s out-of-court statements.  We initially address

the fact that, although a video recording system was available in

the room used to interview A.C., Wiese and Gonzalez did not record

the interview.  Taping an interview provides a better means for

assuring that there was no adult prompting or manipulation involved, and the failure to do so may be considered a negative

factor when considering reliability.  Simpkins, 297 Ill. App. 3d at 677-78, 697 N.E.2d at 308.  However, in light of the other factors,

we decline to overturn the trial court’s reliability ruling on this

basis alone.

	A.C.’s statements to Landers and Rice were spontaneous

and her descriptions of the incidents consistent in each of these

statements.  She also employed descriptive terminology unexpected

from a seven year old.  Defendant argues that the reliability is

diminished because five months passed between the statements and

the occurrences.  Delays in reporting sexual acts do not automati

cally render a child victim’s statements inadmissible.  Zwart, 151 Ill. 2d at 46, 600 N.E.2d at 1173.     

	Defendant also argues that (1) the results of A.C.’s

examination by Dr. Victoria Nichols-Johnson on February 3, 2000,

provided no support for the statements about frequent anal

intercourse, (2) during the medical examination A.C. denied

defendant had anal intercourse with her but claimed he subjected

her to vaginal intercourse, (3) her statement to Wiese and Gonzalez

that this type of behavior occurred all the time was contradicted

by her statement that it happened only twice, and (4) A.C. had a

motive to lie because she did not wish to return to the care of

defendant and her mother.

	The argument that the medical examination did not provide

support for A.C.'s assertions does not determine the admissibility

of her statements in light of the fact that A.C. testified.  The

remaining points of contention raised by defendant are matters that go to the weight to be accorded the statements rather than to a

determination of the admissibility of the statements.  Nichols-

Johnson testified for the State at trial, and defendant had the

opportunity to cross-examine her on the statements made by A.C. to

her and the results of the examination.  We find no abuse of

discretion in admitting testimony of A.C.’s out-of-court state

ments.

	We next consider whether the trial court committed an

abuse of discretion by refusing to admit evidence that A.C. made an

allegation of sexual abuse against Richard Aston that DCFS had

determined to be unfounded.  A.C. and her mother had lived with

Aston for a time.  Defendant argues that a false allegation is

admissible to prove that it is more likely than not that the

accusation against defendant is false.  

	The admissibility of evidence rests in the sound

discretion of the trial court, and this court will not substitute

its judgment on admissibility absent a clear abuse of discretion. 

People v. Gorney, 107 Ill. 2d 53, 59, 481 N.E.2d 673, 675 (1985).  In Gorney, the failure to allow a defendant to present evidence of a prior false allegation was deemed harmless error under the facts

of that case.  Gorney, 107 Ill. 2d at 61, 481 N.E.2d at 676.  The Gorney decision did say that evidence of a prior false accusation of rape by the victim may be admitted if the trial judge deems the

evidence relevant and probative.  Gorney, 107 Ill. 2d at 61, 481 N.E.2d at 676. 

	In People v. Nicholl, 210 Ill. App. 3d 1001, 1010-11, 569 N.E.2d 604, 610-11 (1991), the court found reversible error where a DCFS determination of unfounded, concerning an allegation of

abuse of a minor, was not admitted into evidence.  The court in

Nicholl said the evidence was admissible to attack the victim’s credibility even though it would not absolutely prove that the

allegation deemed unfounded was false.

	In People v. Mason, 219 Ill. App. 3d 76, 81, 578 N.E.2d 1351, 1355 (1991), this court rejected a similar argument,

requiring a showing that the proferred testimony would prove more

likely than not that the accusation made on the other occasion was

false, to establish its probative value to the case at bar.  This

court specifically observed that a DCFS determination is a

recommendation not to prosecute or continue proceedings and is not

a judicial determination or a final determination of the falsity of

the accusation.  Mason, 219 Ill. App. 3d at 82, 578 N.E.2d at 1356.

	We distinguish Gorney because, in that case, the evidence  sought to be admitted indicated that on another occasion the victim

had indicated a willingness to intentionally lie about being raped

(Gorney, 107 Ill. 2d at 58, 481 N.E.2d at 675), and we decline to follow Nicholl.  Following the reasoning in Mason, we find no abuse of discretion.  DCFS determining an accusation unfounded does not

definitely establish that the accusation determined to be unfounded

was false and is not probative of whether the accusation against

defendant is false.

	Defendant’s last issue is whether the finding of guilty

of aggravated criminal sexual abuse should be vacated.  In this

case, the judgment and sentence referred only to predatory criminal

sexual assault and made no reference to aggravated criminal sexual abuse.  At the sentencing hearing, the trial court found, and the

State conceded, that the abuse charge merged into the predatory

assault charge.

	“When multiple convictions of greater and lesser offenses

are obtained for offenses arising from a single act, a sentence

should be imposed on the most serious offense and the convictions

on the less serious offense should be vacated.”  People v. Garcia, 179 Ill. 2d 55, 71, 688 N.E.2d 57, 64 (1997).  However, in the

absence of a judgment formally entered or sentence imposed, there

is no “conviction.”  720 ILCS 5/2-5 (West 2000).  A jury verdict is

not the equivalent of a conviction.  People v. Cruz, 196 Ill. App. 3d 1047, 1052, 554 N.E.2d 598, 601 (1990).  When there has been

findings of guilty of multiple offenses arising out of the same

physical act, it is proper for the trial judge to enter judgment

and sentence on only the most serious of the offenses.  People v. Donaldson, 91 Ill. 2d 164, 170, 435 N.E.2d 477, 479-80 (1982); Cruz, 196 Ill. App. 3d at 1052, 554 N.E.2d at 601.  In this case, the trial court entered judgment on the jury’s verdict for

predatory criminal sexual assault and expressly declined to enter

judgment on the jury verdict for aggravated criminal sexual abuse. 

This issue is without merit.

	The judgment of the circuit court of Sangamon County is

affirmed.

	Affirmed.

	MYERSCOUGH, P.J., concurs.

	COOK, J., dissents.

	JUSTICE COOK, dissenting:

	I respectfully dissent.  The trial court erred in

admitting the hearsay statements of A.C., as related by Detective

Wiese and DCFS investigator Gonzalez.  The trial court also erred

in preventing the jury from knowing that A.C. had falsely accused

Richard Aston of the same conduct.  I would reverse and remand for

a new trial. 

	A.C. lived with her apparent parents, defendant and his

wife Judith Cookson, until August 1999, when Judith and her

boyfriend, Richard Aston, took A.C. with them to Hammond, Indiana. 

In Hammond, Richard, Judith, and A.C. lived on the streets, with

Judith engaging in prostitution and Richard acting as her pimp. 

Richard then took A.C. and disappeared, and Judith contacted

defendant, who came to Indiana and, along with Judith, filed a

report of child abduction against Richard.  Several days later, on

January 29, 2000, Richard returned to Illinois and turned A.C. over

to authorities.  At that time DCFS caseworker Rice spoke to A.C.,

who told Rice that she had not been to school in a while, that she

understood she was going to be placed in a foster home, that she

wanted to live in a clean place, and that she did not want to stay

with Don (defendant?) and Judith because they fed her nasty food

"like dogs or cats would eat."  In response to Rice's questioning

about marijuana, A.C. told Rice that "daddy" Don had given her

marijuana, put her in the bathtub, took out his "thingy" and

proceeded to "hump" on her.  

	The next day, in response to the question whether she was

doing okay, A.C. told her foster mother, Landers, that "I am never

going home.  I'm not going back to Don and Judy.  Don fucked me in the ass."  Of course, A.C. had not lived with defendant during the

prior six months.  In a later conversation with Dr. Nichols-

Johnson, A.C. made it clear that she had not been subjected to anal

penetration although she then claimed she had been subjected to

vaginal penetration.  Dr. Nichols-Johnson found no sign of rectal

injury and determined that A.C.'s hymen was intact with no

indication of sexual abuse.  A.C. also stated that "Judy ate my

pussy," and "they are going to jail," while she would stay with the

foster mother forever.  At trial, A.C. acknowledged that she

sometimes got Richard and defendant mixed up.  She considered both

Richard and defendant to be her dad.  In mid-2000, after deoxyribo

nucleic acid (DNA) testing was done, it was established that

Richard was A.C.'s biological father.

	A.C.'s testimony at trial consisted primarily of one- or

two-word answers in response to leading questions.  Often A.C.

changed her answers in response to follow-up questions.     

	It is exceptional for hearsay evidence that is taken

without the opportunity to cross-examine to be admitted under

statutes such as section 115-10.  Hearsay should be admitted, under

the confrontation clause, only where "truthfulness is so clear from

the surrounding circumstances that the test of cross-examination

would be of marginal utility," and only where the evidence is "so

trustworthy that adversarial testing would add little to [its]

reliability."  Idaho v. Wright, 497 U.S. 805, 820-21, 111 L. Ed. 2d 638, 655-56, 110 S. Ct. 3139, 3149 (1990).  Absent "particularized

guarantees of trustworthiness" the evidence must be excluded. 

Evidence possessing "particularized guarantees of trustworthiness"

must be at least as reliable as evidence admitted under a firmly rooted hearsay exception.  Idaho, 497 U.S. at 821, 111 L. Ed. 2d at 656, 110 S. Ct. at 3149.  Because of the importance of the right of

cross-examination, section 115-10, which places limits on that

right, should be strictly construed.  People v. Bridgewater, 259 Ill. App. 3d 344, 349, 631 N.E.2d 779, 782 (1994); People v. Bowen, 183 Ill. 2d 103, 126-28, 699 N.E.2d 577, 589-90 (1998) (McMorrow,

J., dissenting).

	What was there about the child's hearsay statements here

that made them "particularly worthy of belief"?  People v. Coleman, 205 Ill. App. 3d 567, 583-84, 563 N.E.2d 1010, 1020-21 (1990); 725

ILCS 5/115-10(b)(1) (West 2000) ("sufficient safeguards of

reliability").  The statements to Detective Wiese and DCFS

investigator Gonzalez were clearly not spontaneous.  Simpkins, 297 Ill. App. 3d at 678, 697 N.E.2d at 308 (statements during question

ing by DCFS investigator); Lilly v. Virginia, 527 U.S. 116, 124, 144 L. Ed. 2d 117, 126, 119 S. Ct. 1887, 1894 (1999) (specific

intent of confrontation clause was to prevent trial on ex parte affidavits prepared by the prosecution).  They were made in

preparation for trial, and the conscious decision not to videotape

the statements raises the inference that the prosecution saw an

advantage in the jury hearing an interpretation of the child's

statements, rather than the statements themselves.  

	The fact that A.C. used terminology unexpected of a child

of similar age does not support admission of the hearsay, but in

fact weighs against it.  A.C. was clearly a streetwise child, but

there is no suggestion that knowledge was acquired from activities

with defendant.  The mistaken reference to anal penetration

suggests that A.C. was familiar with the words, but not with what they meant.  The logical inference is that A.C.'s  knowledge was

acquired during the six months prior to the statements being made,

the six months whichthat A.C. spent with Richard and Judith in Indiana. 

The most troublesome aspect of this case is the possibility that

A.C.'s references to her "daddy" Don are in fact references to her

"daddy" Richard.  A.C. testified at trial that she had previously

been living in Indiana with her mother and a man named Donald.  Supp. Vol. VI, R. 108, 119-21.  The fact that dDetective Wiese, at the time he interviewed A.C., was not

aware that she had spent the last six months in the custody of

Richard is troublesome.  Wiese's narration of A.C.'s statements,

given his misunderstanding of the situation, is likely to be

misleading.  The other witnesses relating A.C.'s statements may

have suffered from the same misunderstanding.  

	There was clearly a motive to fabricate.  A.C.'s

statements were prefaced with her remarks that she wanted to stay

in a clean place and she did not want to stay with Don and Judith

because they fed her nasty food.  Of course A.C. was not "staying"

with Don and Judith at the time her statements were made.  It is

also troublesome that Richard had just returned the child to

Illinois after a report of child abduction had been filed against

him by defendant and Judith.  A.C. testified at trial that Richard

had told her to say bad things about Don.  Richard, who most

recently had control over A.C., clearly had a motive to fabricate

testimony against defendant.  		

	A.C.'s testimony at trial was halting and inconsistent. 

Were her statements to the four witnesses who repeated her hearsay

any better?  The hearsay testimony related by Detective Wiese and

DCFS investigator Gonzalez was not merely cumulative.  It rein forced the testimony of the other witnesses and "lent considerable

credence to [the child's] testimony at trial, noteworthy for its

contradictions."  People v. Mitchell, 155 Ill. 2d 344, 355, 614 N.E.2d 1213, 1218 (1993).  Inadmissible hearsay gives the State the

advantage of having the victim testify twice and serves to unfairly

add heft to the State's case.  Bowen, 183 Ill. 2d at 126-30, 699 N.E.2d at 589-91 (McMorrow, J., dissenting).  A new trial is

warranted "if it appears that the delicate scales of justice have

been unfairly tilted by the sheer weight of repetition."  People v. Anderson, 225 Ill. App. 3d 636, 648, 587 N.E.2d 1050, 1059 (1992); People v. Moss, 275 Ill. App. 3d 748, 756, 656 N.E.2d 193, 199 (1995).  

	The majority asserts that the contradictions in A.C.'s

statements and testimony "go to the weight to be accorded the

statements rather than to a determination of the admissibility of

the statements."  Slip op. at 8.  That contradicts the majority's

listing of the factors to be considered in making a reliability

determination under section 115-10(b).  The first factor listed is

"the child's spontaneity and consistent repetition of the inci dent."  (Empahhasesis added.)  Slip op. at 8.  mThe child's repetition

of the incident here was not consistent.

	The burden of proof is on the State, not just to show

that the statements were made, but that they were "particularly

worthy of belief."  What was there about these statements that made

them "particularly worthy of belief"?  The mere fact that defendant

has not proved the statements to be inaccurate does not make them

"particularly worthy of belief."  Section 115-10 is a new and

controversial statute.  It is not sufficient for us to recite that we cannot say that the trial court abused its discretion.  The

appellate court should maintain some consistency of result at least

for certain situations that are common and for which a clear result

follows from the spirit as well as the letter of the applicable

rules or statutes.  In re Estate of Smith, 201 Ill. App. 3d 1005, 1010, 559 N.E.2d 571, 574 (1990).  Independent review is necessary

to maintain control of, and to clarify, the legal principles

governing the factual circumstances necessary to satisfy the

protections of the Bill of Rights.  Lilly, 527 U.S. at 136, 144 L. Ed. 2d at 134, 119 S. Ct. at 1900.     		

	The trial court further erred by refusing to admit

evidence that A.C. made an allegation against Richard Aston that

DCFS had determined to be unfounded.  A complainant's prior or

subsequent unfounded allegations of sexual abuse against the

accused may be admissible, if they bear upon the complainant's

credibility.  Mason, 219 Ill. App. 3d at 81, 578 N.E.2d at 1355.  Defendant must demonstrate only that it is more likely than not

that the prior accusations were false.  Mason, 219 Ill. App. 3d at 82, 578 N.E.2d at 1356.  In Mason, we suggested that a DCFS finding that the accusation was unfounded was not sufficient proof of

falsity, where the DCFS file also indicated that defendant admitted

improper touching of the complainant.  There is no such impeachment

of the DCFS finding in the present case.  Similar considerations

apply to the admission of evidence of other crimes, wrongs, or acts

committed by the accused.  Proof of such acts need not be beyond a

reasonable doubt, but such proof must be more than a mere suspi

cion.  People v. Thingvold, 145 Ill. 2d 441, 456, 584 N.E.2d 89, 95 (1991).  It is not required that evidence "definitely establish that the accusation determined to be unfounded was false."  Slip

op. at 10.  There was evidence in this case from which a reasonable

jury could have concluded that A.C. made false accusations against

Richard.  

	Even beyond that, the fact that A.C. accused Richard of

abusing her was relevant to some very material elements of the

crime charged in this case and should have been admitted.  Evidence

of other acts can be admissible if it is intertwined with the

instant offense or where it relates to earlier events.  People v. Lewis, 243 Ill. App. 3d 618, 625-26, 611 N.E.2d 1334, 1339 (1993).  A.C. has stated that she has been sexually attacked by every adult

in her life, by her mother, Judith, by her father, Richard, and by

her stepfather, defendant.  The jury was entitled to know that A.C.

made these allegations against everyone, not just against defen

dant.  Preventing the jury from knowing this essential evidence

deprived defendant of a fair trial.