                            NO. 4-05-0350        Filed: 3/16/06

                        IN THE APPELLATE COURT

                             OF ILLINOIS

                           FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,    ) Appeal from
          Plaintiff-Appellee,           ) Circuit Court of
          v.                            ) Adams County
ROBERT RANDALL,                         ) No. 04CF305
          Defendant-Appellant.          )
                                        ) Honorable
                                        ) Michael R. Roseberry
                                        ) Judge Presiding.
_________________________________________________________________

          JUSTICE McCULLOUGH delivered the opinion of the court:

          On October 15, 2004, a jury found defendant, Robert

Randall, guilty of attempt (aggravated criminal sexual abuse)

(720 ILCS 5/8-4, 12-16(d) (West 2002)).      On December 2, 2004, the

trial court sentenced him to five years in prison.     Defendant

appeals, arguing (1) the State engaged in gender discrimination

during jury selection, (2) he was denied a fair trial because the

jury heard the victim "wailing" outside of the courtroom follow-

ing her testimony, (3) the court erred by granting the State's

motion to exclude testimony that defendant did not exhibit

characteristics of a pedophile or that the victim's allegations

could have been the result of a vivid dream, and (4) he should

have been granted a new trial based on newly discovered evidence

that the victim lied.    We affirm.

          On June 24, 2004, the State charged defendant with

aggravated criminal sexual abuse (720 ILCS 5/12-16(d) (West

2002)).   Defendant pleaded not guilty and the matter was set for

jury trial.   On October 12, 2004, the State filed an amended
information, adding a charge of attempt (aggravated criminal

sexual abuse) (720 ILCS 5/8-4, 12-16(d) (West 2002)).   Later, the

original aggravated-criminal-sexual-abuse charge was dismissed on

the State's motion, and the matter proceeded on only the attempt

charge.   Regarding that charge, the State alleged defendant, who

was at least 5 years older than the alleged victim, K.S., per-

formed a substantial step toward the commission of aggravated

criminal sexual abuse when he committed an act of sexual conduct

with K.S., who was at least 13 years of age but under the age of
17.   Specifically, the State alleged defendant knowingly placed

his hand on K.S.'s upper thigh and moved it toward her vaginal

area.

           Prior to trial, the State filed a motion in limine to

exclude the testimony of defense witness Dr. Frank Froman,

alleging the matters to which he would testify were irrelevant,

highly speculative, and would invade the province of the jury.

On October 13, 2004, a hearing on the State's motion was held and

defendant presented the testimony of Dr. Froman, who testified

(1) he interviewed defendant and saw no indication of pedophilia

and (2) K.S.'s allegations could possibly have been the result of

a vivid dream.   After considering the evidence presented and the

parties' arguments, the trial court granted the State's motion to

exclude Dr. Froman's testimony.

          On October 14, 2004, defendant's jury trial began.

During jury selection, the State exercised four peremptory

challenges.   Defendant objected, arguing the State engaged in


                               - 2 -
purposeful discrimination because its peremptory challenges were

only directed at potential male jurors.    The trial court made a

preliminary finding of purposeful discrimination and the State

was given the opportunity to offer gender-neutral explanations

for each of its challenges.    The court accepted the State's

explanations and concluded it did not engage in purposeful gender

discrimination.

            During the course of trial, defendant moved for a

mistrial, alleging he was prejudiced because the jury heard K.S.
"wailing" outside of the courtroom after she finished testifying.

 The trial court noted K.S. started to cry as she left the court-

room and, although it was later reported that she collapsed, the

court did not believe the jurors saw that happen.    Instead, it

determined the occurrence was not disruptive and did not affect

the jury.   The court denied defendant's motion for a mistrial.

            On October 15, 2004, the jury returned a verdict of
guilty and the trial court set the matter for sentencing.    On

November 15, 2004, defendant filed a motion to set aside the jury

verdict and for new trial, alleging, in part, that the court

erred when it (1) granted the State's motion to exclude Dr.

Froman's testimony, (2) denied his motion for a mistrial based on

K.S.'s outburst, and (3) determined the State offered gender-

neutral explanations for its use of peremptory challenges against

only male members of the jury venire.    Later, on February 14,

2005, defendant filed an amended motion to set aside the verdict

and for a new trial.   The amended motion included all of his


                                - 3 -
previous arguments and added a request for a new trial based on

newly discovered evidence.    Specifically, defendant alleged he

located a witness who, after the trial, "discussed the allega-

tions of the case with [K.S.]" and K.S. admitted she "set up"

defendant and "he was in jail for something he did not do."

            On December 2, 2004, the trial court sentenced defen-

dant to five years in prison.    On December 24, 2004, defendant

filed a motion to reconsider his sentence.       On April 4, 2005, a

hearing was conducted on defendant's amended motion to set aside
the verdict and for new trial and his motion to reconsider.

During the hearing, defendant presented the testimony of C.P.,

who testified she attended the same school as K.S. and overheard

K.S. tell other students that she got defendant "put away" to get

revenge on his stepdaughter, A.J.       The court continued defen-

dant's motion to reconsider sentence and the newly discovered

evidence issue for further hearing but otherwise denied his
amended motion to set aside the verdict and for new trial.

            On April 21, 2005, the State presented the testimony of

K.S., who denied making the statements testified to by C.P.       The

trial court stated that, after careful consideration, it found

C.P. was not credible.   It then denied both the portion of

defendant's posttrial motion requesting a new trial based on

newly discovered evidence and his motion to reconsider his

sentence.

            This appeal followed.

            On appeal, defendant first contends the trial court


                                - 4 -
erred when it failed to find the State engaged in gender discrim-

ination during jury selection.     Specifically, defendant maintains

the State utilized its peremptory challenges to discriminate on

the basis of gender and exclude men from his jury.    He also

contends the court improperly offered a gender-neutral explana-

tion for the State.

             In Batson v. Kentucky, 476 U.S. 79, 89, 90 L. Ed. 2d

69, 82-83, 106 S. Ct. 1712, 1719 (1986), the United States

Supreme Court held that the equal-protection clause of the

fourteenth amendment prohibits racial discrimination during jury

selection.    In J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127,
130-31, 128 L. Ed. 2d 89, 98, 114 S. Ct. 1419, 1422 (1994), it

extended that holding to include intentional gender-based dis-

crimination.

             To prevail when alleging intentional gender discrimina-

tion, a defendant must make a prima facie showing that the State

exercised peremptory challenges on the basis of gender. People v.

Blackwell, 171 Ill. 2d 338, 348, 665 N.E.2d 782, 786 (1996).     If

the requisite showing is made, "the burden shifts to the State to

give gender-neutral explanations for dismissing the potential

jurors."     Blackwell, 171 Ill. 2d at 348, 665 N.E.2d at 786.   "The

State's explanation need not rise to the level justifying a

challenge for cause, but must be based on a juror characteristic

other than gender and cannot be pretextual."    People v. Hudson,

195 Ill. 2d 117, 127-28, 745 N.E.2d 1246, 1253 (2001).    The trial

court decides whether the defendant carried his burden and proved


                                 - 5 -
purposeful discrimination, and its findings of fact will not be

reversed unless clearly erroneous.      Blackwell, 171 Ill. 2d at

348-49, 665 N.E.2d at 786-87.

            Here, the trial court's decision is not clearly errone-

ous.    Defendant correctly points out that the State exercised

four peremptory challenges directed only at male members of the

jury venire; however, in response to defendant's allegations of

intentional gender discrimination, the State offered explanations

for each of its challenges that were based on juror characteris-

tics unrelated to gender.    Specifically, the State maintained it

challenged potential jurors Norman Thompson, Tony Wardlow, Robert

Rakers, and James Hays because (1) it had recently prosecuted

Thompson's nephew for murder and the nephew was convicted of

manslaughter, (2) Wardlow twice indicated that his understanding

of the State's burden of proof was proof of guilt "without any

doubt," (3) Rakers was the jury foreman on the previous day's

jury that had returned a not-guilty verdict, and (4) Hays was

also on the previous day's jury and was "good old buddies" with

another man who ended up on defendant's jury.

            Further, contrary to defendant's assertions, the

State's proffered explanations were not a pretext for discrimina-

tion.    Defendant argues the State's contention that it did not

want jurors from the previous day's jury was merely a pretext for

discrimination because it only challenged men for that reason and

not women.    First, defendant has misconstrued the State's argu-

ment.    The State never maintained that it did not want any jurors


                                - 6 -
who had served the previous day but that it did not want two

specific jurors who had served the previous day and who possessed

other gender-neutral characteristics the State found undesirable.

 Specifically, Rakers had been the jury foreman the previous day

and the State was concerned he could take a leadership role in

defendant's jury and Hays was good friends with another male

juror who was selected for defendant's jury.     The State was

concerned Hays and his friend would follow one another and

decided to challenge Hays because he was on the previous day's
jury and defendant's jury already contained jurors who had also

served the previous day.

             Defendant notes that the State did not challenge any

female members of the jury venire who had served on the previous

day's jury.    While this is true, there were also several male

members of the jury venire who had been on the previous day's

jury and who the State also did not challenge.     Defendant's jury,
including the two alternate jurors, was composed of eight men and

six women.    Of those selected jurors, four men and four women had

been on the previous day's jury.     The State did not challenge any

potential juror solely based on his jury service the previous

day.   Instead, as stated, the two jurors who were challenged for

that reason, Rakers and Hays, were also found undesirable by the

State for other gender-neutral reasons.     Thus, the State's

rationale for its challenges to Rakers and Hays was not a pretext

for discrimination.

             Finally, defendant contends the trial court erred


                                 - 7 -
because it offered gender-neutral explanations for the State.     To

support his assertion, defendant cited to the court's acknowledg-

ment of that error during a hearing on defendant's posttrial

motion.   The State maintains the court mistakenly acknowledged

the error because it never improperly supplied the State with any

gender-neutral explanation.   The portion of the record detailing

defendant's objection to the State's peremptory challenges, and

the proceedings that followed, supports the State's version of

events, i.e., that it supplied its own gender-neutral rationale

for each peremptory challenge.    The record does not indicate the

State was prompted by the court, and defendant failed to cite any

part of the record evidencing the court's alleged error.   Al-

though he did support his argument with the court's acknowledg-

ment of the error, that acknowledgment was made months after the

error allegedly occurred and is, itself, not supported by the

record.

          Here the State provided gender-neutral explanations for

each of its peremptory challenges and the record refutes defen-

dant's contention that the State's explanations were merely a

pretext for discrimination.   Additionally, the record also

refutes defendant's contention that the trial court improperly

supplied the State with gender-neutral explanations for its

peremptory challenges.   For those reasons, the court's determina-

tion that the State did not engage in gender discrimination

during jury selection was not clearly erroneous.

          Defendant next argues he was denied a fair trial


                                 - 8 -
because the jury heard K.S. "wailing" outside the courtroom

following her trial testimony.    He maintains he was prejudiced by

that event and a new trial is warranted.

           "A genuine emotional outburst by a witness giving vent

to natural feeling is not always grounds for granting a mis-

trial."   People v. Bradley, 43 Ill. App. 3d 463, 468, 357 N.E.2d

696, 700 (1976).   Whether to grant a mistrial is within the trial

court's discretion.   Bradley, 43 Ill. App. 3d at 468, 357 N.E.2d

at 700.

          In this case, on the second day of trial, defendant

requested the trial court make a record that, after testifying

the day before, K.S. left the courtroom and "started wailing ***

within earshot of the court, counsel[,] and all of the jurors."

He also moved for a mistrial.    After considering the parties'

arguments, the court stated as follows:

                "[K.S.] did walk out of the courtroom

          under her own power.    I heard her, as she

          left the courtroom, start to cry.     I did not

          see her go down, and I had a better view than

          anybody, so I am comfortable that no jurors

          actually saw her collapse.     In fact, I did

          [not] know she collapsed until this morning

          in talking to *** the bailiff in these pro-

          ceedings.   I did hear her crying, being emo-

          tionally upset outside of the courtroom, and

          I did ask [the bailiff] to go make sure that


                                 - 9 -
           she got away from the courtroom. ***

                I did not find it to be disruptive.     In

           fact, we would have proceeded and in fact did

           proceed with the proceedings while she was

           having her emotional situation.   I don't

           believe that it affected the jury at all, and

           I am denying the [motion for] mistrial."

           In this instance, the trial court did not err when it

denied defendant's request for a mistrial.    K.S. testified
without incident.   The court was in the best position to deter-

mine the effect of K.S.'s emotional outburst on the jury.      After

listening to K.S.'s cries and having the opportunity to observe

any reaction by the jury, the court concluded the event was not

disruptive and had no effect.    The record does not reflect that

the court abused its discretion in reaching these conclusions.

           Defendant further argues the trial court erred when it
granted the State's motion in limine to prevent Dr. Froman from

testifying that defendant was not a pedophile and there was a

significant probability that K.S.'s allegations were the result

of a vivid dream.   He contends Dr. Froman's testimony would have

negatively affected K.S.'s credibility and, by excluding Dr.

Froman's testimony, the court denied him the right to present a

defense.

           A trial court's decision to grant or deny a motion in

limine allowing or excluding certain evidence will not be over-
turned on review absent an abuse of discretion.    People v. Owen,


                                - 10 -
299 Ill. App. 3d 818, 823, 701 N.E.2d 1174, 1178 (1998).       Fur-

ther, expert testimony should be permitted only if:

             "(1) the proffered expert has knowledge and

             qualifications uncommon to laypersons that

             distinguish him as an expert; (2) the ex-

             pert's testimony would help the jury under-

             stand an aspect of the evidence that it oth-

             erwise might not understand, without invading

             the province of the jury to determine credi-
             bility and assess the facts of the case; and

             (3) the expert's testimony would reflect

             generally accepted scientific or technical

             principles."   People v. Simpkins, 297 Ill.

             App. 3d 668, 681, 697 N.E.2d 302, 310 (1998).

             Generally, a defendant may introduce evidence of his or

her good character or personality through "general reputation"

evidence but not expert personal opinion testimony.        In re B.J.,

316 Ill. App. 3d 193, 201, 735 N.E.2d 1058, 1065 (2000).       Addi-

tionally, attempts to use purported expert testimony to bolster

or attack the credibility of witnesses should be rejected.       B.J.,
316 Ill. App. 3d at 201, 735 N.E.2d at 1065.

           At a hearing on the State's motion, Dr. Froman testi-

fied and the parties stipulated that he was a clinical psychology

expert.   Dr. Froman stated he conducted a limited, one-hour

interview with defendant and took legal, personal, and social

histories.    He also took a sexual history that was not as inclu-


                                 - 11 -
sive as the complete sexual history usually taken during sexual-

offender evaluations.    During the interview, Dr. Froman saw

nothing to indicate defendant was a pedophile or had any deviance

that would lead him to molest a 14-year-old girl.    Dr. Froman

also testified that if defendant's accuser was asleep prior to

making the accusations and watched a sexually provocative movie

before going to bed, there was "some reasonable possibility" that

she dreamed the abuse.    Additionally, he testified that if the

accusations arose at four in the morning, it would suggest the
accuser was asleep.    Further, she could possibly have been in

rapid eye movement (REM) sleep, during which a vivid dream is

more likely to occur.

            On cross-examination, Dr. Froman acknowledged he did

not know whether defendant's accuser was asleep and it was only

his opinion that one explanation for the allegations against

defendant could be that the accuser experienced a vivid dream.
However, if he interviewed the accuser and she stated she never

went to sleep, it would not be his opinion that she dreamed the

event.   Additionally, Dr. Froman reiterated that he saw nothing

during the interview with defendant that would allow him to make

a diagnosis of pedophilia but acknowledged that not all individu-

als who commit a sex offense are pedophiles.    Finally, Dr. Froman

admitted the only information he possessed was what defendant had

provided.    On redirect examination, Dr. Froman testified that

people are generally asleep at four in the morning, the incident

in question allegedly occurred at that time, and a pedophile is


                               - 12 -
more likely to sexually molest a young child than someone who is

not a pedophile.

           The trial court concluded Dr. Froman's testimony would

be highly speculative and was not based on the facts of the case

regarding whether K.S. was asleep immediately prior to the

alleged incident.   It determined that Dr. Froman would, in

essence, be testifying as to whether defendant was being truth-

ful, which the court did not believe was appropriate.     Finally,

the court stated it did not believe Dr. Froman's testimony would
be of any value or benefit to the jury and granted the State's

motion in limine.

           The court's decision to exclude Dr. Froman's testimony

was not an abuse of its discretion.     First, as stated, opinion

testimony is not a proper way to admit evidence of a defendant's

good character.    B.J., 316 Ill. App. 3d at 201, 735 N.E.2d at

1065.   In B.J., 316 Ill. App. 3d at 200-01, 735 N.E.2d at 1065-

66, this court applied that rule to uphold the trial court's

exclusion of expert testimony that the defendant, who was accused

of inappropriately touching his young child, did not fit the

profile of a sex offender.   Similarly, in this case, defendant

sought to introduce evidence from Dr. Froman indicating defendant

was not a pedophile.   For the same reasons as expressed in B.J.,
the trial court did not abuse its discretion by excluding Dr.

Froman's testimony.

           Second, Dr. Froman's testimony that K.S.'s allegations

could have been the result of a vivid dream are not based on the


                               - 13 -
facts of this case.   Dr. Froman never interviewed K.S. and did

not know whether she had been asleep prior to making her allega-

tions.   Further, there was no evidence presented at defendant's

trial that K.S. was asleep at any point on the night in question.

 Thus, Dr. Froman's proffered testimony was highly speculative,

would not have provided the jury with any useful information, and

would have invaded the province of the jury to determine the

credibility of witnesses and assess the facts of the case.     For

those reasons, the trial court did not abuse its discretion in
excluding this testimony.

           Finally, defendant contends he should have been granted

a new trial based on the newly discovered evidence that K.S.

stated she set defendant up and "he was in jail for something he

did not do."   Specifically, he alleges the evidence meets all the

necessary requirements for the grant of a new trial and, because

the State's only evidence consisted of statements made by K.S.,
newly discovered evidence that her story changed "would conclu-

sively defeat the [S]tate's case."

           Newly discovered evidence warrants a new trial when it

is (1) of such conclusive character that it will probably change

the result on retrial, (2) material to the issue and not merely

cumulative, (3) discovered after trial, and (4) of such character

that the defendant in the exercise of due diligence could not

have discovered it earlier.   People v. Orange, 195 Ill. 2d 437,

450-51, 749 N.E.2d 932, 940 (2001).    "[T]he recantation of

testimony is regarded as inherently unreliable, and a court will


                              - 14 -
not grant a new trial on that basis except in extraordinary

circumstances."    People v. Steidl, 177 Ill. 2d 239, 260, 685

N.E.2d 1335, 1345 (1997).    A court's decision to grant or deny a

motion for a new trial based on newly discovered evidence will

not be overturned by a reviewing court absent an abuse of discre-

tion.   People v. Beard, 356 Ill. App. 3d 236, 242-43, 825 N.E.2d

353, 360 (2005).

          At defendant's trial, K.S. testified, on April 16,

2004, she intended to spend the night at her friend A.J.'s house.

 At that time, A.J.'s mother was defendant's girlfriend and

defendant also lived in the home.     After watching movies, K.S.

attempted to fall asleep on a futon bed next to A.J. but could

not sleep.   At some point, defendant entered the futon and laid

between K.S. and A.J., whom K.S. believed was asleep.    K.S.

testified defendant said, "I know what you and [A.J.] were doing

and if you want me to keep your secret, then you best let me have

a turn, too."     While defendant was speaking, he had his hand on

K.S.'s right thigh and was rubbing it back and forth.    K.S.

stated defendant also put his hand between her legs and moved it

up toward her vagina.

          After K.S. told defendant she did not know what he was

talking about, and twice scooted away from him, defendant left

the futon and sat in a nearby chair.     K.S. testified she got up,

sat on the edge of the futon, and felt like she was going to be

sick.   After a few minutes, she went to the bathroom and then to

A.J.'s room to collect her belongings.    A short time later, A.J.


                                - 15 -
came to her and asked what was wrong.   K.S. told A.J. she did not

want to stay and asked A.J. to help her leave.   K.S. testified

the front door to the house made too much noise when it was

opened and she did not want defendant to hear and prevent her

from leaving.   A.J. suggested K.S. climb out of a window on the

back porch.   After climbing out of the window, K.S. asked A.J. to

leave with her but A.J. refused.   K.S. then went to the home of a

friend who lived six or seven blocks away and reported the

incident to her friend's mother.
          At the hearing on defendant's motion for a new trial

based on newly discovered evidence, C.P. testified she attended

the same school as K.S.   In January 2005, C.P. was at her locker

and overheard K.S., who was standing around the corner from

C.P.'s locker, state that K.S. got defendant "put away" to get

revenge on A.J.   C.P. also heard K.S. say that defendant did not

"do any of it and that it was just all to get payback on [A.J.]."
 C.P. could not see K.S. when the statements were made but did

see her shortly thereafter.   C.P. did not know the people K.S.

was speaking to and could not describe them except to say they

were tall and there were two boys and two girls.   Additionally,

C.P. testified she was friends with A.J. but not K.S. because,

although C.P. wanted to be K.S.'s friend, K.S. did not give C.P.

a chance to become one.   At a second hearing on defendant's

motion, K.S. testified she never made the statements alleged by

C.P.

          The trial court stated it carefully considered the


                              - 16 -
matter and, initially, it noted defendant's motion stated he had

located a witness who spoke directly to K.S.; however, at a

hearing on the motion, C.P. testified she only overheard state-

ments K.S. made to others.    Further, C.P. could not identify who

K.S. was speaking to when the statements were made.   The court

also noted C.P. was friends with A.J. but not K.S.    Finally, it

pointed out that C.P. testified K.S. admitted lying about defen-

dant to get revenge on A.J.   The court found this testimony

remarkable because evidence at defendant's trial established that
K.S. and A.J. were friends at the time of the offense.   In fact,

on the night of the offense, K.S. was staying at A.J.'s house,

K.S. sought A.J.'s help in leaving the home after defendant's

advances, A.J. helped K.S. leave, and K.S. asked A.J. to leave

with her.   The court concluded K.S. had no reason to seek revenge

on A.J.   It then found C.P. was not credible and denied defen-

dant's request for a new trial.
            In this case, the trial court did not abuse its discre-

tion by denying defendant's motion for a new trial.   Specifi-

cally, the newly discovered evidence was not of such conclusive

character that it would have changed the result on retrial.

C.P.'s testimony concerned an alleged recantation by K.S., which

K.S. denied making.   After carefully considering the evidence,

including C.P.'s testimony, the court stated it did not believe

C.P. and determined that a jury could find her not credible.     As

detailed above, the record supports the court's findings.

            The trial court had the opportunity to observe C.P. and


                               - 17 -
hear her testimony.     It determined she was not credible and

stated it did not believe her.     The record supports the court's

findings and its denial of defendant's motion for a new trial was

not an abuse of its discretion.

            For the reasons stated, we affirm the trial court's

judgment.

            Affirmed.

            KNECHT, J., concurs.

            COOK, J., specially concurs.




                                - 18 -
           JUSTICE COOK, specially concurring:

           I dissented in Beard because the trial court refused to

consider evidence of the witness's recantation, on the basis that

it was hearsay, and the witness was not called at the posttrial

hearing.   Beard, 356 Ill. App. 3d at 246-47, 825 N.E.2d at 362-63

(Cook, P.J., dissenting).   In the present case, in contrast, the

trial court properly considered C.P.'s testimony of what she

supposedly heard K.S. say, and K.S. took the stand and denied

making the statements alleged by C.P.




                              - 19 -
