                                                                         Digitally signed by
                                                                         Reporter of Decisions
                       Illinois Official Reports                         Reason: I attest to the
                                                                         accuracy and integrity
                                                                         of this document
                                                                         Date: 2019.01.02
                               Appellate Court                           14:30:05 -06'00'




                  People v. Albarran, 2018 IL App (1st) 151508



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           ULLYSSES ALBARRAN, Defendant-Appellant.



District & No.    First District, First Division
                  Docket No. 1-15-1508



Filed             September 24, 2018



Decision Under    Appeal from the Circuit Court of Cook County, No. 11-CR-20947; the
Review            Hon. Diane Cannon, Judge, presiding.



Judgment          Affirmed.


Counsel on        Michael J. Pelletier, Patricia Mysza, and David T. Harris, of State
Appeal            Appellate Defender’s Office, of Chicago, for appellant.

                  Kimberly M. Foxx, State’s Attorney, of Chicago (Christine Cook,
                  Assistant State’s Attorney, of counsel), for the People.



Panel             JUSTICE PIERCE delivered the judgment of the court, with opinion.
                  Presiding Justice Mikva and Justice Walker concurred in the judgment
                  and opinion.
                                               OPINION

¶1        Defendant Ullysses Albarran was charged with criminal sexual assault and predatory
     criminal sexual assault of a child for allegedly engaging in sexual conduct with his daughter
     while she was under the age of 13 years old. A jury found defendant guilty of one count of
     predatory criminal sexual assault and one count of aggravated criminal sexual abuse, and the
     circuit court of Cook County sentenced him to a total of 37 years’ imprisonment. Defendant
     appeals. On appeal, defendant challenges certain pretrial rulings, asserts that his trial counsel
     provided ineffective assistance, and argues that the circuit court’s noncompliance with
     Illinois Supreme Court Rule 431(b) (eff. May 1, 2007) warrants plain error relief. For the
     following reasons, we affirm.

¶2                                         BACKGROUND
¶3       In November 2011, a grand jury indicted defendant on seven counts of criminal sexual
     assault, two counts of predatory criminal sexual assault of a child, two counts of aggravated
     criminal sexual abuse, and one count of sexual relations within families. The indictment
     alleged that defendant committed the offenses in Cook County between November 24, 2003,
     and November 24, 2008, against his daughter, T.A., who at all relevant times was under the
     age of 13 years old.
¶4       Prior to trial, defendant made an oral request to subpoena T.A.’s mental health records.
     Defendant asserted a belief that T.A. suffered from emotional issues such as depression and
     antisocial behaviors and that she had exhibited making untrue and make-believe statements
     that would affect her credibility at trial. Additionally, defendant requested that the circuit
     court conduct an in camera inspection to determine whether any of T.A.’s mental health
     records contained relevant information. After the parties briefed the issue,1 the circuit court
     conducted a hearing, heard oral argument, and denied defendant’s request to subpoena T.A.’s
     mental health records.
¶5       Defendant also filed a motion requesting a bill of particulars. He requested the “exact
     date(s) or the date(s) within close proximity, that the predatory criminal sexual assault and
     criminal sexual assault charged are alleged to have occurred” and “the number of times the
     charged conduct is alleged to have occurred.” In a written response, the State asserted that
     the alleged incidents took place between November 24, 2003, and November 24, 2008,
     “approximately six times.” The circuit court held a hearing on defendant’s motion. The State
     argued that it provided defendant with all of the discovery it had, including interviews with
     the victim and police reports, which listed the dates and times of the alleged incidents, all of
     which allegedly occurred when T.A. was approximately between the ages of 6 and 11 years
     old. The circuit court stated, “I’m at a loss as to how [the State] could more particularize” the
     information sought by defendant. The circuit court did not order the State to provide any
     additional information in response to defendant’s request for a bill of particulars. At no time
     did defendant seek to dismiss or quash the indictment or otherwise assert that the indictment
     itself was insufficient.



        1
         The State’s written response is not included in the record on appeal.

                                                   -2-
¶6          During jury selection, the circuit court asked the first panel of potential jurors, “Does
       everyone accept the principle that the defendant is not required to offer evidence on his own
       behalf?” The record reflects that the potential jurors answered in the affirmative. The circuit
       court, however, did not ask the first panel of potential jurors whether they understood that
       principle. The circuit court asked the first panel of potential jurors whether they both
       understood and accepted the principles that the defendant is presumed innocent of the
       charges against him, that before a defendant can be convicted the State must prove the
       defendant guilty beyond a reasonable doubt, and that the defendant’s failure to testify cannot
       be held against him. All of the potential jurors responded in the affirmative. Eight jurors were
       selected from the first panel. The circuit court properly polled the remaining panels of
       prospective jurors on each of the four questions.
¶7          At trial, T.A. testified that she was born in November 1997, that defendant was her father,
       and that Jeanette S. was her mother. T.A. lived with both of her parents before they
       separated. She testified that during the summer when she was either six or seven years old,
       she and defendant were in her parents’ bed while her mother was at work. T.A. was in her
       nightgown and underwear, and defendant was just in his underwear. Defendant was on his
       back and pulled T.A. on top of him and began moving around and rubbing his erect penis
       against her vagina without removing his or her underwear. When T.A. tried to get away,
       defendant held her down. She did not scream while it occurred because she was scared. T.A.
       said that defendant smelled of alcohol that night. At some point, defendant stopped and went
       to the bathroom. T.A. did not tell anyone because defendant told her not to. T.A. further
       testified that before she turned nine years old, she was again in her parents’ bed with
       defendant while her mother was sleeping downstairs on the sofa. Defendant pulled down
       T.A.’s underwear and put his penis in her vagina. She did not scream because she was scared.
       She testified that defendant stopped abusing her before she turned nine years old.
¶8          T.A. described a time when she was in a vehicle with defendant and he told her that if a
       family member did anything illegal that she should not turn them in because she would be a
       traitor. She also testified that she made tally marks on the side of her bedroom dresser with a
       knife tallying the incidents of abuse by her father. The State introduced photographs of the
       dresser showing 19 tally marks. T.A. admitted that she did not tell the police or anyone else
       about the tally marks on the dresser until one week before trial. She further stated that the
       tally marks were just an “estimation,” that she made the tally marks “on separate occasions in
       groups,” and that she could not recall which tally marks were the most recent.
¶9          T.A. testified that she first disclosed the sexual abuse in September 2011 to her then
       boyfriend Jeffrey. Both T.A. and Jeffrey were 13 years old at the time. T.A. did not identify
       defendant as the person who sexually abused her. Jeffrey then told a teacher at their school
       about the abuse. On October 21, 2011, T.A. went to school and disclosed the abuse. She
       testified that the police arrived and took her to the police station where she told the police
       about the abuse.
¶ 10        Jeanette, T.A.’s mother, testified that she moved herself and her children out of
       defendant’s house in June 2010 due to marital issues and defendant’s alcohol use. In October
       2011, Jeanette received a phone call from T.A.’s school asking her to come to the school.
       While there, Jeanette learned for the first time of T.A.’s allegations of abuse against
       defendant. Jeanette testified that when defendant would visit their children after they moved
       out, T.A. would give her a hard time about having to spend weekends with him and would

                                                  -3-
       say that she did not want to go. Jeanette acknowledged that she had not told the police about
       T.A.’s feelings about having to spend weekends with her father. On October 25, 2011,
       Jeanette learned that defendant had attempted to commit suicide. Jeanette spoke with
       defendant while he was in the hospital and asked him about T.A.’s allegations, to which
       defendant responded, “I don’t know unless I was drunk.”
¶ 11       Danielle Komen, a social worker at Illinois Masonic Hospital, testified that she spoke
       with defendant on October 26, 2011, after he was admitted on October 25, 2011, due to
       multiple self-inflicted stab wounds. Komen stated that defendant had been given morphine
       that day. She asked defendant why he hurt himself and he responded that he was “feeling
       guilty about things in life” and that his daughter was in the hospital. During the course of
       their conversation, defendant stated that he touched T.A.’s butt and that he had touched her
       vagina underneath her clothes, but he denied having sexual intercourse with T.A. or ever
       exposing himself to her. When Komen told defendant that she was a mandatory reporter and
       that she would have to report his statements, defendant asked if he was going to jail and if
       Komen was going to tell his mom. Komen stated that defendant could not remember the time
       frame in which he touched his daughter, but he said that it happened “multiple times.”
       Komen testified that she clearly remembered defendant’s statements because it was the only
       time that someone had admitted to her that they had inappropriately touched their child.
¶ 12       Detective Adam Katz testified that on October 25, 2011, he was assigned to defendant’s
       attempted suicide case. On October 26, 2011, Katz went to the hospital to interview
       defendant but was unable to do so because defendant was in critical but stable condition. On
       October 27, 2011, Katz interviewed defendant who said he was overwhelmed. Defendant did
       not tell Katz that he abused his daughter or that he felt guilty about anything because Katz
       “didn’t ask him about that.”
¶ 13       Detective Jose Castaneda was assigned to investigate T.A.’s allegations. T.A. initially
       told Castaneda that she had been abused three times but then gave him a different number.
       She told Castaneda that defendant told her not to tell anyone. Castaneda testified that he had
       handled over 1000 child sex abuse cases and that in 85% of those cases the child did not
       report the abuse right away. On cross-examination, Castaneda stated that many of these cases
       went to court. The circuit court sustained the State’s objection to defendant’s question as to
       the number of those cases that resulted in a conviction.
¶ 14       After the State rested, defendant made an oral motion for a directed verdict, which the
       circuit court denied. Defendant then proceeded to call two witnesses. First, Detective
       Castaneda further testified that Jeanette did not tell him that T.A. gave Jeanette a hard time
       about T.A. having to spend time with defendant on the weekends. Second, Naahreet Romero
       testified that she was T.A.’s cousin and that they “grew up together.” They were close and
       confided in one another. Naahreet would sleep over at T.A.’s while they were growing up,
       and that if it was not every weekend, it was every other weekend. When both Naahreet and
       T.A. were 6 to 10 years old, they would play with dolls in T.A.’s bedroom. Naahreet testified
       that she did not recall ever seeing tally marks on T.A.’s dresser but also acknowledged that
       she did not ever inspect the dresser.
¶ 15       After hearing closing arguments, the jury found defendant guilty of predatory criminal
       sexual assault of a child and aggravated criminal sexual abuse. Defendant filed a posttrial
       motion for a new trial that asserted, in part, that the State failed to provide sufficiently
       specific information in the bill of particulars and that the circuit court erred by denying

                                                  -4-
       defendant’s request to subpoena T.A.’s mental health records and by failing to conduct an
       in camera review of those records. The circuit court denied defendant’s motion for a new
       trial and sentenced defendant to consecutive sentences of 30 years in prison for predatory
       criminal sexual assault and 7 years for aggravated criminal sexual abuse. Defendant filed a
       timely notice of appeal.

¶ 16                                           ANALYSIS
¶ 17        On appeal, defendant raises four arguments. First, he argues that the indictment was
       unreasonably broad because it spanned a five-year period, and that circuit court erred by not
       requiring the State to provide more specific information in a bill of particulars. Second, he
       argues that his trial counsel was ineffective by failing to object to T.A.’s testimony about the
       tally marks on her dresser, Castaneda’s testimony about the number of child victims who fail
       to report abuse right away, and improper arguments in the State’s closing argument. Third,
       defendant contends that the circuit court’s failure to properly admonish the jury during jury
       selection amounts to first-prong plain error and that the evidence was closely balanced,
       warranting a new trial. Finally, defendant argues that he was deprived of his right to a fair
       trial where the circuit court denied his request to subpoena T.A.’s mental health records and
       refused to conduct an in camera review of those records. We address these arguments in turn.

¶ 18                                       A. Bill of Particulars
¶ 19       Defendant first argues that the indictment was “unconstitutionally overbroad” because it
       spanned a five-year period. He relies primarily on out-of-state cases to argue that the time
       period in the indictment was so overbroad and vague as to be unconstitutional. He further
       argues that the circuit court erred by not requiring the State to provide more specific
       information in a bill of particulars. He contends that the indictment was insufficient under
       section 111-3(a) of Code of Criminal Procedure of 1963 (Criminal Code) (725 ILCS
       5/111-3(a) (West 2010)) because it failed to give any indication of when the alleged offenses
       occurred. Defendant argues that the lack of specificity in the indictment “virtually ensured
       that [defendant] would not be able to present a meaningful defense” and that the circuit court
       should have ordered the State to provide more specific information.
¶ 20       A defendant has a fundamental constitutional right to be informed of the nature and cause
       of the criminal accusations made against him. U.S. Const., amends. VI, XIV; Ill. Const.
       1970, art. I, § 8; People v. Meyers, 158 Ill. 2d 46, 51 (1994). In Illinois, section 111-3(a) of
       the Criminal Code is “designed to inform the accused of the nature of the offense with which
       he is charged so that he may prepare a defense and to assure that the charged offense may
       serve as a bar to subsequent prosecution arising out of the same conduct.” People v.
       Simmons, 93 Ill. 2d 94, 99-100 (1982). Where the sufficiency of the charge is challenged
       both before trial and in a posttrial motion, the charge must be found to strictly comply with
       section 111-3 of the Criminal Code. People v. DiLorenzo, 169 Ill. 2d 318, 321-22 (1996).
       Whether the charging instrument was sufficient is a question of law that we review de novo.
       People v. Espinoza, 2015 IL 118218, ¶ 15. However, where the defendant challenges the
       sufficiency of indictment for the first time on appeal, a more liberal standard applies, and “it
       is sufficient that the indictment apprised the accused of the precise offense charged with
       enough specificity to (1) allow preparation of his defense and (2) allow pleading a resulting


                                                  -5-
       conviction as a bar to future prosecution arising out of the same conduct.” DiLorenzo, 169 Ill.
       2d at 322.
¶ 21       Furthermore, the circuit court may order the State to provide a bill of particulars when an
       indictment fails to sufficiently specify the particulars of a charged offense to enable the
       defendant to prepare a defense. 725 ILCS 5/111-6 (West 2010); People v. Woodrum, 223 Ill.
       2d 286, 301 (2006). A bill of particulars is used “to provide more specificity of detail to
       supplement a sufficient indictment so as to enable an accused better to understand the nature
       of the charge against him or better to prepare his defense.” People v. Patrick, 38 Ill. 2d 255,
       260 (1967). “The purpose of a bill of particulars is to give the defendant notice of the charge
       and to inform the defendant of the particular transactions in question, thus enabling
       preparation of a defense.” Woodrum, 223 Ill. 2d at 301-02. A circuit court’s decision on a
       motion for a bill of particulars is reviewed for abuse of discretion. Id. at 302. An abuse of
       discretion will be found only when the circuit court’s decision is arbitrary and no reasonable
       person would adopt the view of the circuit court. Id.
¶ 22       Section 111-3(a) of the Criminal Code provides
                   “(a) A charge shall be in writing and allege the commission of an offense by:
                       (1) Stating the name of the offense;
                       (2) Citing the statutory provision alleged to have been violated;
                       (3) Setting forth the nature and elements of the offense charged;
                       (4) Stating the date and county of the offense as definitely as can be done; and
                       (5) Stating the name of the accused, if known, and if not known, designate the
                   accused by any name or description by which he can be identified with reasonable
                   certainty.” 725 ILCS 5/111-3(a) (West 2010).
       With respect to section 111-3(a)(4) of the Criminal Code, the State “is not required to prove
       the precise date on which the offenses occurred, but must at least give some indication in the
       indictment as to when the offenses occurred.” People v. Guerrero, 356 Ill. App. 3d 22, 27
       (2005). We observed in Guerrero that, “[t]he date of the offense is not an essential factor in
       child sex offense cases.” Id. (citing People v. Burton, 201 Ill. App. 3d 116, 123 (1990)). We
       further noted that in cases involving sexual abuse of children, “flexibility is permitted
       regarding the date requirement” in section 111-3(a)(4). Id. “As long as the crime occurred
       within the statute of limitations and prior to the return of the charging instrument, the State
       need only provide the defendant with the best information it has as to when the offenses
       occurred.” Id.
¶ 23       Here, we find that the indictment apprised defendant of the precise offenses charged with
       enough specificity to allow preparation of his defense. We first observe that, while defendant
       argues on appeal that the indictment was insufficient, at no point either prior to or after
       defendant filed a motion for a bill of particulars did he move to quash or dismiss the
       indictment. Defendant’s motion for a bill of particulars did not assert that the indictment was
       insufficient but instead requested more particularized information as to the dates of the
       alleged offenses and the number of times the charged conduct was alleged to have occurred.
       As our supreme court observed, a bill of particulars seeks to provide more specificity of
       detail to supplement a sufficient indictment. Patrick, 38 Ill. 2d at 260. It follows then that, in
       order to challenge the sufficiency of the indictment, a defendant must do more than simply
       request more particularized information. In other words, defendant here requested more

                                                   -6-
       specific details without attacking the sufficiency of the indictment itself. Nor did defendant’s
       posttrial motion for a new trial assert that the indictment was insufficient but instead
       reiterated that the State had failed to provide more particularized information in response to
       the motion for a bill of particulars. Here, the indictment included all of the essential elements
       required by section 111-3(a) of the Criminal Code and provided defendant with notice of the
       nature of charges against him. The indictment stated the name of the offenses, cited the
       statutory provisions alleged to have been violated, set forth the nature and elements of the
       offenses charged, stated the range of dates and the county of the offense, and stated the name
       of the accused. We also reiterate that the date of the offense is not an essential factor in child
       sex offense cases (see Guerrero, 356 Ill. App. 3d at 27), and therefore any failure to include
       the precise date of the offense does not render an indictment insufficient. We conclude that
       the indictment was sufficient and not so overly broad as to impair defendant’s ability to
       present a meaningful defense.
¶ 24        Furthermore, defendant’s reliance on the out-of-state decisions in State v. Baker, 769
       S.E.2d 860 (S.C. 2015), and People v. Keindl, 502 N.E.2d 577 (N.Y. 1986), is misplaced.
       First, we are not bound to follow the decisions of courts of last resort in our sister states,
       particularly where those decisions involve interpretation of those states’ own constitutions
       and statutes. Second, Baker and Keindl are distinguishable, as both of those cases involved
       pretrial motions to quash indictments and were resolved on the specific facts of those cases.
¶ 25        In Baker, the defendant was initially indicted in January 2005 on four counts of
       committing a lewd act upon a minor and one count of criminal sexual conduct with a minor
       stemming from allegations by the defendant’s niece for acts that occurred between May 2002
       and September 2002, May 2003 and September 2003, and in June 2004. Baker, 769 S.E.2d at
       862. In July 2006, the defendant was also indicted for committing a lewd act upon a minor in
       2002 against a second victim, who was also the defendant’s niece and the sister of the first
       victim. Id. After the initial indictments, the victims alleged that the abuse began in 1998, and
       prosecutors presented a second set of indictments to the grand jury. On October 26, 2006, the
       initial indictments were amended to reflect that the defendant committed lewd acts against
       the first victim between June 1998 and September 2004, while the criminal sexual conduct
       charges covered the same time period set forth in the initial indictment, and that the
       defendant committed lewd acts against the second victim between June 1998 and September
       1998. Id. Prior to the November 13, 2006, trial, the defendant moved to quash the amended
       indictments as unconstitutionally overbroad and vague, asserting that his ability to present a
       defense was hindered because the amended indictments alleged acts that occurred over a
       six-year period without any specificity. Id. at 862-63. The trial court denied the motion to
       quash, and the defendant was ultimately convicted of four counts of committing a lewd act
       upon a minor against the first victim. Id. at 863.
¶ 26        The Supreme Court of South Carolina, in a divided 3-2 opinion—with one of the justices
       in the majority concurring in the result only—reversed the defendant’s convictions. The court
       found that the defendant “was prejudiced as he was undoubtedly taken by surprise and
       significantly limited in his ability to combat the charges against him.” Id. at 864. The court
       focused on the fact that the amended indictments were returned two weeks prior to trial and
       set forth a continuous six-year period rather than the three summers identified in the initial
       indictments. Id. Furthermore, the defendant’s employment records prior to July 2000 had



                                                   -7-
       been destroyed, and therefore his counsel could not adequately establish the defendant’s
       whereabouts during the expanded time frame in the amended indictments. Id.
¶ 27       The dissent rejected any “[per se] rule of overbreadth for the mere fact that the time
       period covered in the indictment is lengthy.” Id. at 866 (Toal, C.J., dissenting) (citing State v.
       Wade, 409 S.E.2d 780, 783 (S.C. 1991)). The dissent examined the statutory language of the
       charged offenses and noted, “Because time is not an element of the offenses, and because the
       time period covered by the indictments occurred prior to the return of the indictments by the
       grand jury, we must look to the surrounding circumstances leading to the enlargement of
       time in the indictments.” Id. at 867. The dissent observed that after the initial indictments, the
       minor victims recalled that the abuse began earlier, which in the dissent’s view was sufficient
       to broaden the time of the alleged abused in the indictment. Id. As for the timing of the
       amended indictments being returned so close to trial, the dissent observed that the defendant
       had moved the trial court for a continuance, that the trial court denied that motion, and that
       the defendant did not raise the propriety of the trial court’s denial of his request for a
       continuance in the supreme court. Id.
¶ 28       First, Baker is distinguishable from the situation before us because, here, defendant did
       not move to quash the indictment. Second, the two-justice majority opinion in Baker was
       primarily concerned that the defendant could not present a meaningful defense when the time
       period in the indictments was enlarged two weeks before trial from three summers to an
       uninterrupted span of six years time, leaving defendant with little opportunity to develop an
       alibi defense. Here, the indictment was not amended on the eve of trial, and defendant does
       not identify how the time frame in the indictment precluded him from preparing his defense.
       The State provided defendant with all of the discovery it had, including interviews with the
       victim and police reports, which listed the dates and times of the alleged incidents, whereas
       the opinion in Baker is silent as to what information had been provided to the defendant by
       prosecutors prior to trial. For these reasons, we find that the holding in Baker is
       distinguishable from the facts before us.
¶ 29       In Keindl, the defendant was charged in a 32-count indictment of numerous sexual crimes
       against his stepchildren over a three-year period. Kiendl, 502 N.E.2d at 578. The defendant
       moved, in relevant part, to quash the indictment for failing to allege with sufficient
       specificity the time of the occurrence of certain charged offenses. Id. at 579. The trial court
       denied the motion but permitted defendant to request a bill of particulars. Id. Prosecutors
       provided specific dates for some of the counts and narrowed the time period for others, but
       left other counts unchanged. Id. The case proceeded to a jury trial and the defendant was
       convicted on 26 counts. Id. The judgment was affirmed by the New York Supreme Court,
       Appellate Division. Id.
¶ 30       The Court of Appeals of New York vacated the defendant’s conviction on 15 counts. The
       court observed
               “the interval of time set forth in each count must reasonably serve[ ] the function of
               protecting defendant’s constitutional right to be informed of the nature and cause of
               the accusation [citations] so as to enable him to prepare a defense and to plead the
               judgment in bar of any further prosecution for the same crime.” (Internal quotation
               marks omitted.) Id. at 579-80.
       Furthermore, “when time is not an essential element, the indictment is often permitted to
       state the time in approximate terms, but *** [t]he determination of whether sufficient

                                                   -8-
       specificity to adequately prepare a defense has been provided *** must be made on an ad hoc
       basis considering all relevant circumstances,” including the “span of time set forth and the
       knowledge the People have or should have of the exact date or dates of the crime.” (Internal
       quotation marks omitted.) Id. at 581. Many of the counts in the indictment alleged numerous
       acts in a single count occurring over periods of 10, 12, and 16 months, which the court
       concluded were “so excessive on their face that they are unreasonable.” Id. The court also
       considered that the victims were between the ages of 8 and 13 at the time of the alleged
       offenses and thus were more capable than younger victims of “discerning, if not exact dates,
       at least seasons, school holidays, birthdays, or other events which could establish a frame of
       reference to assist them in narrowing the time spans alleged.” Id.
¶ 31       Keindl is also different from this case. First, the indictment there lumped together several
       alleged acts into single counts under a “continuous crime” theory. Here, the State did no such
       thing. Each separate count of the indictment alleged a single act, and thus the indictment was
       proper in form. This ameliorates the Keindl court’s concern that “there is such a multiplicity
       of acts encompassed in single counts as to make it virtually impossible to determine the
       particular act of sodomy or sexual abuse as to which the jury reached a unanimous verdict.”
       Id. at 582. Second, while we agree with Keindl that each case should be evaluated under its
       unique circumstances, we do not believe that under the circumstances of this case that the
       five-year time period alleged in each count of the indictment was so excessive as to be
       facially unreasonable. Here, the alleged abuse occurred while T.A. was between the ages of 6
       and 11 years old, and her age undoubtedly diminished her ability to recall the dates or times
       of the alleged abuse. She was, however, able to provide some general information regarding
       her age and the time of year when the abuse occurred. The State provided this evidence to
       defendant, and it constituted the most particularized evidence available. We agree with the
       circuit court’s assessment that the State could not provide any more particularized
       information as to the dates of the abuse, and we conclude that the indictment was not so
       broad or vague as to impair defendant’s constitutional right to prepare a defense, particularly
       where defendant identifies no prejudice to his ability to prepare a defense.
¶ 32       The thrust of defendant’s argument is directed at the indictment being overly broad.
       Defendant does not specifically argue that the circuit court abused its discretion by refusing
       to order the State to provide more particularized information in response to defendant’s
       motion for a bill of particulars. Defendant has therefore forfeited any such argument. Ill. S.
       Ct. R. 341(h)(7) (eff. July 1, 2017). Having already concluded that the indictment itself was
       sufficient, there is no basis from which we might conclude that the circuit court abused its
       discretion by refusing to order the State to provide additional, particularized information
       about the dates of the offenses alleged.

¶ 33                               B. Ineffective Assistance of Counsel
¶ 34       Defendant argues that his trial counsel was ineffective by failing to object to T.A.’s
       testimony regarding the tally marks she made on her dresser, failing to object to Detective
       Castaneda’s testimony regarding the number of other child sex abuse cases he had worked
       on, and failing to object to statements made during the State’s closing argument.
       Alternatively, defendant argues that we should review the circuit court’s failure to exclude
       inadmissible or irrelevant evidence for plain error.


                                                  -9-
¶ 35       Criminal defendants have a constitutional right to effective assistance of counsel.
       Strickland v. Washington, 466 U.S. 668, 684-85 (1984); U.S. Const., amends. VI, XIV; Ill.
       Const. 1970, art. I, § 8. A defendant is denied effective assistance where his counsel’s
       performance fell below an objective standard of reasonableness, and absent counsel’s
       deficient performance, there is a reasonable probability that the outcome of the trial would
       have been different. Strickland, 466 U.S. at 684-85. When evaluating a claim of ineffective
       assistance of counsel, we may address the issue of whether defendant suffered any prejudice
       from his trial counsel’s allegedly deficient performance without first concluding that trial
       counsel’s counsel performance fell below an objectively reasonable standard. Id. at 697;
       People v. Albanese, 104 Ill. 2d 504, 527 (1984). To show prejudice, a defendant must
       establish a reasonable probability that, but for counsel’s deficient performance, the outcome
       of the proceeding would have been different. People v. Smith, 2012 IL App (1st) 102354,
       ¶ 168. A probability rises to the level of a “reasonable probability” when it is sufficient to
       undermine confidence in the outcome or the proceeding. Id.

¶ 36                     1. Trial Counsel’s Failure to Object to T.A.’s Testimony
¶ 37       Defendant first argues that his trial counsel provided ineffective assistance by failing to
       object at trial to T.A.’s testimony regarding the tally marks she purportedly made on her
       dresser. He contends that the tally marks were inadmissible hearsay because they were
       out-of-court, nonverbal statements offered to prove the fact that defendant committed the
       abuse and that the statements were unreliable. Defendant argues that he was prejudiced by
       his counsel’s failure to object because T.A.’s statements “were particularly damaging where
       the State’s evidence rested on T.A.’s veracity” in conjunction with the prosecutor’s closing
       argument that the tally marks were a “powerful piece of evidence.” Defendant further
       contends that the State was able to bolster T.A.’s credibility through the tally mark evidence.
¶ 38       We find that defendant was not prejudiced by his trial counsel’s failure to object to T.A.’s
       testimony about the tally marks on the dresser. Prior to trial, defendant’s counsel requested
       that the trial court exclude any evidence about the tally marks on the basis of timeliness, as it
       was disclosed for the first time one week prior to trial. The circuit court refused to exclude
       the evidence but told counsel “I will give you all the time you need to prepare.” Counsel
       informed the circuit court that she had met with defendant to discuss the evidence and to
       determine whether any further investigation could be made or whether there were any
       additional witnesses, but as a result of that conversation, she “[did not] have any additional
       investigation based on any new information given to me from my client.” At trial, T.A.
       testified that the tally marks were an “estimation” of the number of times that defendant
       touched her. On cross-examination, T.A. testified that first time she disclosed the tally marks
       was one week prior to trial and that she had not previously told the police about the tally
       marks. She explained that she made the tally marks “on separate occasions in groups,” and
       could not recall when she made the marks. We conclude that the tally mark evidence was
       diminished where T.A. acknowledged that the marks were not contemporaneous with any
       abuse and that she could not recall when she made them. Furthermore, defendant’s counsel
       elicited testimony from Naahreet that she recognized the dresser as the one from T.A.’s
       bedroom and did not recall seeing the marks on T.A.’s dresser during the time they spent
       together on weekends growing up. Finally, during closing arguments, defense counsel argued
       that “the reason why Naahreet didn’t notice [the tally marks] was because it’s a recent

                                                  - 10 -
       fabrication.” Testimony concerning the tally marks provided defendant with an avenue to
       attack T.A.’s credibility by questioning the validity of her accusations and arguing that T.A.
       might have fabricated this evidence to bolster her allegations against her father. Without this
       area of attack, the defense was left with essentially a defense of denying the charges,
       claiming that the charges were recent fabrications and asserting that T.A.’s accusations were
       too improbable to believe. Therefore, even if defense counsel should have objected to the
       introduction of evidence regarding the tally marks, defense counsel’s trial strategy was to use
       the facts surrounding that evidence to cast doubt on T.A.’s credibility. Defendant did not
       suffer any prejudice, and we conclude that defendant has not established a reasonable
       probability that, had his trial counsel objected to the evidence of the tally marks, the outcome
       of the trial might have been different.

¶ 39               2. Trial Counsel’s Failure to Object to Detective Castaneda’s Testimony
¶ 40        Next, defendant argues that his trial counsel was ineffective by failing to object to
       Detective Castaneda’s testimony that in roughly 85% of the other child sex abuse cases he
       had worked on, the child victim failed to come forward right away with their allegations of
       abuse. Defendant contends that Detective Castaneda was not qualified as an expert, that his
       testimony as to facts in other cases was irrelevant, and that the circuit court compounded the
       error by sustaining the State’s objection to defendant’s question as to how many of those
       other cases resulted in a conviction. Defendant argues that he was prejudiced where the State
       was allowed to argue during closing argument that T.A.’s delayed outcry was normal.
¶ 41        We again conclude that defendant was not prejudiced by his trial counsel’s failure to
       object to Detective Castaneda’s testimony regarding other child sex abuse victims’ delayed
       outcries. First, prior to trial, the circuit court denied the State’s motion to allow Castaneda to
       testify as an expert. The circuit court did, however, allow Castaneda to testify as to the
       number of child sex abuse cases he investigated that involved delayed outcry, and defendant
       would be allowed to inquire as to the number of those cases that went to court. As a result of
       this ruling, defendant’s only claim of prejudice is that the State was allowed to argue in
       closing that T.A.’s delayed outcry was normal. The circuit court, however, admonished the
       jury that closing arguments are not evidence, and we presume that the jury follows the law
       that it is given. People v. Taylor, 166 Ill. 2d 414, 438 (1995). Furthermore, during
       cross-examination, defense counsel elicited testimony from T.A. in which she acknowledged
       not telling police about the abuse until October 2011 and that she first disclosed the abuse to
       her then boyfriend in September 2011. T.A. had also testified that after the abuse, defendant
       told her not to tell anyone, that she felt fear after the abuse, and that defendant told her that if
       a family member did anything illegal that she should not turn them in because she would be a
       traitor. Defense counsel then argued in closing that T.A.’s allegations against defendant were
       “unfortunately what we call recent fabrication.” And although counsel’s closing arguments
       are not evidence, defendant’s counsel sought to sway the jury by arguing that T.A.’s delayed
       outcry was simply a lie. Even if Detective Castaneda’s testimony potentially normalized
       T.A.’s delayed outcry, the jury was still in a position to independently evaluate whether,
       under the circumstances of this case, T.A.’s delayed outcry, in light of her fear and
       defendant’s attempts to urge T.A. to remain quiet about the abuse, affected her credibility.
       We conclude that defendant has not established a reasonable probability that, had his trial
       counsel objected to Detective Castaneda’s testimony about other victims’ outcries, the

                                                    - 11 -
       outcome of the trial might have been different.

¶ 42           3. Trial Counsel’s Failure to Object to Statements Made During Closing Argument
¶ 43       As his final argument for ineffective assistance of his trial counsel, defendant argues that
       the State made unobjected-to statements in closing to the effect that defendant failed to make
       any exonerating statements at the time he learned about T.A.’s allegations of abuse. The
       prosecutor stated,
                   “The defendant himself also gives us a lot of evidence in this case. Let’s talk
               about his actions. Let’s talk about what happened after October 21, 2011, the day
               [T.A.] found her voice.
                                                   ***
                   Now, [defendant] gives us more evidence when he gets to Illinois Masonic,
               because he talks. And he talks to Danielle Komen and he talks to
               Jeanette. *** [Komen] goes in to talk about a discharge plan with this guy, and he
               uses the word, his words now, I’m feeling guilty about what’s going on with my
               daughter.
                   And [Komen] asks him, what’s going on with your daughter? What did you do to
               her? And he says that he touched her butt, and then he admits a little more. He
               touched her vagina under her clothes multiple times, but he doesn’t really know
               when. ***
                   Now what else did he say to Danielle Komen? Are you going to tell my mom?
               Am I going to go to jail? Really. It’s all about him. Not how is [T.A.] What’s going
               on. Why is she saying these things. Oh, no that wasn’t his response. ***
                   And then Jeanette confronts him at Illinois Masonic. And what does he say to
               Jeanette? He tells Jeanette, I don’t know unless I was drunk. Again, really. Use your
               common sense here. He didn’t start screaming to Jeanette, what is going on with our
               daughter? Nope. Why is she doing this? Nope. I don’t know unless I was drunk.”
¶ 44       Defendant contends that the State’s argument improperly shifted the burden to defendant
       to present reasonable doubt as to his guilt and that he was prejudiced as evidenced by a jury
       note asking how certain the jury needed to be in order to find a person guilty beyond a
       reasonable doubt.
¶ 45       The State’s closing argument, however, was based on the evidence presented during trial
       and emphasized defendant’s own admissions. Defendant cannot claim that he suffered any
       prejudice as a result of his trial counsel’s failure to object to the State’s references to trial
       evidence in closing argument.
¶ 46       Next, defendant argues that the State made an improper statement during rebuttal
       argument. Defense counsel stated in her closing, in reference to defendant’s statements to
       Jeanette, “What could he say. I don’t know anymore. I was drunk. He’s completely shut
       down and given up, because what does life mean if this is what he’s going to be accused of
       from his daughter.” In rebuttal, when discussing defendant’s statement to Jeanette, the
       prosecutor argued, “What’s his response? How dare you think I could this to my daughter? I
       would never do this my daughter. No. I don’t know. Unless I was drunk.” Defense counsel’s
       statements were not supported by any trial evidence, and the State’s rebuttal emphasized that


                                                  - 12 -
       defendant’s only response to being confronted by Jeanette was, “I don’t know. Unless I was
       drunk.”
¶ 47       In context, it is clear that none of the State’s statements attempted to shift the burden to
       defendant to present a reasonable doubt as to his guilt and did not suggest that defendant’s
       lack of exonerating statements was proof of his guilt. The State’s closing argument
       emphasized the only evidence presented at trial as to what defendant said when confronted
       with his daughter’s accusation, and the State’s rebuttal argument was fair comment in
       response to defendant’s argument. We conclude that defendant has not established a
       reasonable probability that, had his trial counsel objected to the State’s statements in closing,
       which were all based on the evidence at trial, the outcome of the trial might have been
       different.

¶ 48                                          4. Plain Error
¶ 49       Finally, defendant argues that we should review the circuit court’s admission of T.A.’s
       testimony as to the tally marks, Detective Castaneda’s testimony as to other sexual abuse
       victims’ delayed outcries, and the State’s statements during closing arguments for plain error.
       Defendant argues that both prongs of plain error are implicated because the evidence was
       closely balanced, that his counsel’s errors threatened to tip the scales of justice against
       defendant, and that the cumulative effect of his counsel’s alleged errors deprived defendant
       of his right to a fair trial. However, we have already determined that none of the alleged
       errors resulted in any prejudice to defendant, and we conclude that none of the errors were
       serious enough to warrant plain error review.

¶ 50                              C. Illinois Supreme Court Rule 431(b)
¶ 51       Defendant next argues that the circuit court failed to comply with Illinois Supreme Court
       Rule 431(b) because it failed to ask the first panel of potential jurors—from which eight
       jurors were selected—if they understood the principle that a defendant is not required to
       present any evidence. Although defendant forfeited this issue by failing to raise it at any time
       in the circuit court, he argues that the circuit court’s error amounts to first-prong plain error
       and that the evidence was closely balanced.
¶ 52       Rule 431(b) provides:
               “The court shall ask each potential juror, individually or in a group, whether that juror
               understands and accepts the following principles: (1) that the defendant is presumed
               innocent of the charge(s) against him or her; (2) that before a defendant can be
               convicted the State must prove the defendant guilty beyond a reasonable doubt;
               (3) that the defendant is not required to offer any evidence on his or her own behalf;
               and (4) that the defendant’s failure to testify cannot be held against him or her;
               however, no inquiry of a prospective juror shall be made into the defendant’s failure
               to testify when the defendant objects.” Ill. S. Ct. R. 431(b) (eff. May 1, 2007).
¶ 53       The State correctly asserts, and defendant concedes in his reply, that defendant has
       forfeited review of this error because he failed to object during voir dire and failed to include
       this issue in his posttrial motion. People v. Sebby, 2017 IL 119445, ¶ 48. Rule 615(a),
       however, permits an appellate court to excuse a defendant’s forfeiture and reach the merits of



                                                  - 13 -
       a claim that amounts to plain error. Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967); Sebby, 2017 IL
       119445, ¶ 48.
¶ 54        The plain error doctrine allows a court of review to consider a forfeited error when
       “(1) the evidence is close, regardless of the seriousness of the error, or (2) the error is serious,
       regardless of the closeness of the evidence.” People v. Herron, 215 Ill. 2d 167, 186-87
       (2005).
                “In the first instance, the defendant must prove ‘prejudicial error.’ That is, the
                defendant must show both that there was plain error and that the evidence was so
                closely balanced that the error alone severely threatened to tip the scales of justice
                against him. The State, of course, can respond by arguing that the evidence was not
                closely balanced, but rather strongly weighted against the defendant. In the second
                instance, the defendant must prove there was plain error and that the error was so
                serious that it affected the fairness of the defendant’s trial and challenged the integrity
                of the judicial process.” Id. at 187.
¶ 55        Defendant argues that the circuit court’s error constitutes first-prong plain error. His
       argument is consistent with our supreme court’s holding that a Rule 431(b) error is usually
       only subject to first-prong plain error analysis. Sebby, 2017 IL 119445, ¶ 52. We must
       therefore determine whether the evidence here was closely balanced such that the circuit
       court’s error threatened to tip the scales of justice against defendant. This requires us to
       “evaluate the totality of the evidence and conduct a qualitative, commonsense assessment of
       it within the context of the case.” Id. ¶ 53. We are required, however, to first determine
       whether error occurred. Id.
¶ 56        Rule 431(b) “mandates a specific question and response process.” People v. Thompson,
       238 Ill. 2d 598, 607 (2010). “The rule requires questioning on whether the potential jurors
       both understand and accept each of the enumerated principles.” Id. Accordingly, failure to
       ascertain whether the jurors both understand and accept the principles constitutes a violation
       of Rule 431(b) and is therefore error. Id.; see also People v. Wilmington, 2013 IL 112938,
       ¶ 32.
¶ 57        There is little doubt that error occurred here, and at oral argument, the State conceded
       that an instructional error occurred. Our review of the record shows that the third instruction
       given by the trial court did not fully comply with Rule 431(b) insofar as the circuit court
       failed to question the potential jurors as to whether they understood the defendant was not
       required to offer any evidence on his behalf.
¶ 58        The State argues, however, that defendant is not entitled to any plain error relief because
       he presented evidence on his own behalf. On this point, we agree. As our supreme court has
       explained, “a defendant must show prejudice to obtain relief under the first prong of the plain
       error doctrine.” Sebby, 2017 IL 119445, ¶ 68. “What makes an error prejudicial is the fact
       that it occurred in a close case where its impact on the result was potentially dispositive.” Id.;
       see also Herron, 215 Ill. 2d at 187 (“[T]he defendant must show both that there was plain
       error and that the evidence was so closely balanced that the error alone severely threatened to
       tip the scales of justice against him.”). Here, defendant simply cannot obtain plain error relief
       based on the circuit court’s failure to ask potential jurors whether they understood that a
       defendant is not required to offer any evidence on his behalf because defendant did offer
       evidence on his behalf at trial. Defendant called Detective Castaneda and Naahreet as


                                                    - 14 -
       witnesses in his case in chief. There was simply no possibility that the circuit court’s
       instructional error may have affected the result of the trial.
¶ 59        Furthermore, defendant is not entitled to relief under first-prong plain error because the
       evidence was not closely balanced. Defendant argues that the State’s case was premised on
       T.A.’s credibility. Defendant argues that T.A. originally told Jeffrey that she did not know
       who had abused her, that she gave Detective Castaneda inconsistent accounts of the number
       of times she was abused, and that she waited roughly four years to come forward with her
       allegations of abuse. At trial, defendant sought to attack T.A.’s credibility by highlighting
       these issues and by highlighting that T.A. failed to disclose the tally marks on her dresser
       until a week before trial. He further sought to show that T.A. had a bad relationship with
       defendant and resented him due to an incident where he cut off her hair when she had lice.
       He further attempted to minimize the importance of his own statements to Jeanette and
       Komen, arguing that he had been medicated with morphine at the time he made those
       statements.
¶ 60        When considering whether evidence is closely balanced, we must “evaluate the totality of
       the evidence and conduct a qualitative, commonsense assessment of it within the context of
       the case.” Sebby, 2017 IL 119445, ¶ 53. We must assess the evidence on the elements of the
       offense, as well as any evidence regarding the witnesses’ credibility. Id.
¶ 61        Section 12-16(b) of the Criminal Code of 1961 provided2 that “The accused commits
       aggravated criminal sexual abuse if he or she commits an act of sexual conduct with a victim
       who was under 18 years of age *** and the accused was a family member.” 720 ILCS
       5/12-16(b) (West 2010). Section 12-14.1(a)(1) of the Criminal Code of 1961 provided, in
       relevant part,3
                   “(a) The accused commits predatory criminal sexual assault of a child if:
                       (1) the accused was 17 years of age or over and commits an act of sexual
                   penetration with a victim who was under 13 years of age when the act was
                   committed[.]” 720 ILCS 5/12-14.1(a)(1) (West 2010).
¶ 62        Here, T.A. was 17 years old at the time of trial. She testified about two occasions on
       which defendant abused her. The first incident, which occurred when T.A. was either six or
       seven years old, involved defendant pulling T.A. on top of him rubbing his erect penis
       against T.A.’s vagina while they both were wearing underwear. The second incident, which
       occurred when T.A. was nine years old, involved defendant having sexual intercourse with
       her and ejaculating on the bed sheet. There was, therefore, evidence that defendant
       committed each element of both aggravated criminal sexual abuse and predatory criminal
       sexual assault of a child. T.A. also testified that after the abuse, defendant told her not to tell
       anyone, and that people who turned in family members for doing something illegal were
       traitors. Furthermore, Komen testified that defendant acknowledged that he touched T.A.’s
       butt and that he had touched her vagina underneath her clothes, and that he had touched her
       multiple times, although defendant did not recall any specific instances and did not admit to
       having sexual intercourse with T.A. And in response to Jeanette confronting defendant about

          2
             Section 12-16 of the Criminal Code of 1961 was subsequently renumbered as section 11-1.60 of
       the Criminal Code of 2012 (720 ILCS 5/11-1.60 (West 2012)), with no substantive changes.
           3
             Section 12-14.1 of the Criminal Code of 1961 was subsequently renumbered as section 11-1.40 of
       the Criminal Code of 2012 (720 ILCS 5/11-1.40 (West 2012)), with no substantive changes.

                                                    - 15 -
       the abuse, defendant said, “I don’t know unless I was drunk.” There was no testimony from
       any other witness that contradicted T.A.’s testimony as to defendant’s abuse, or Jeanette and
       Komen’s testimony as to defendant’s statements. Furthermore, although defendant
       cross-examined T.A. and elicited testimony that she had not previously disclosed the tally
       marks on her dresser and the circumstances of her delayed outcry about the alleged abuse,
       there is no evidence that contradicts T.A.’s testimony about the incidents of abuse. Therefore,
       this case does not involve a “contest of credibility.” See People v. Naylor, 229 Ill. 2d 584,
       606-07 (2008) (finding the evidence closely balanced where both the State’s and the
       defendant’s witnesses provided credible testimony as to the parties’ respective version of
       events); see also Sebby, 2017 IL 119445, ¶¶ 55-63 (same).
¶ 63        Having considered the evidence presented at trial, as well as defendant’s arguments as to
       T.A.’s credibility, we conclude that the evidence of defendant’s guilt was not closely
       balanced, and that the circuit court’s instructional error did not threaten to tip the scales of
       justice against defendant. We therefore conclude that defendant is not entitled to relief under
       first-prong plain error.
¶ 64        Finally, we reiterate that compliance with Rule 431(b) is mandatory and noncompliance
       calls into question the integrity of the jury’s verdict. We recognize that veteran, experienced,
       and highly-regarded circuit court judges are so well-versed in giving required instructions
       and admonishments that, on occasion, inadvertent mistakes occur and a required instruction
       is missed. The fact that the omission in this case was not objected to during voir dire or
       included in defendant’s posttrial motion likely indicates that veteran prosecutors and defense
       counsel also mistakenly believed that the required instruction had been given. Our circuit
       court judges are committed to ensuring that the rights of all defendants are preserved, yet
       everyone makes mistakes. Clearly, some mistakes can be avoided with the use of helpful
       reminders, such as checklists. We urge all circuit court judges to exercise the utmost care
       when asking potential jurors whether they both understand and accept each of the principles
       in Rule 431(b). Far from a rote procedure, asking potential jurors whether they understand
       and accept the bedrock principles embodied in Rule 431(b) contributes to affording criminal
       defendants the basic constitutional right to a fair and impartial jury to which they are entitled.

¶ 65                                 D. T.A.’s Mental Health Records
¶ 66       Finally, defendant argues that he was deprived of his right to a fair trial where the circuit
       court denied his request to subpoena T.A.’s mental health records and refused to conduct an
       in camera review of those records. At the hearing on defendant’s request to issue subpoenas,
       defense counsel stated that defendant was seeking psychiatric and mental health records
       because T.A. had “been in mental health treatment and therapy *** throughout the years
       about [sic] before she made allegations that she was being abused” by defendant. Defense
       counsel argued that T.A. “may have been questioned by a therapist about whether or not
       anybody was abusing her in any way,” and that if T.A. had denied being abused, “we would
       be entitled to have these records to determine, not only that, but whether or not [T.A.] has
       other personality disorders that affects [sic] her credibility, her moral turpitude for telling the
       truth.”
¶ 67       In response, the State argued that defendant was seeking records from five different
       treatment locations or providers that T.A. visited after she disclosed the allegations of abuse.
       The State asserted that the records sought by defendant were privileged under section 8-802.1

                                                   - 16 -
       of the Code of Civil Procedure (Code) (735 ILCS 5/8-802.1 (West 2010)), which governs the
       confidentiality of statements made to rape crisis personnel. The State further argued that
       defendant had not made “any showing *** that there is any impeachment they believe that is
       contained in those records that could not be obtained by any other source.”
¶ 68       In reply, defense counsel argued that section 8-802.1 of the Code did not apply because
       none of the providers met the definition of a “rape crisis counselor” as defined by the statute
       and that it would be incumbent on the provider to assert such a privilege.
¶ 69       The circuit court denied defendant’s request for T.A.’s records “that have arisen since the
       case was reported.” The circuit court stated, “If you have other records you’re seeking that
       come beforehand, I would be happy to entertain a motion for those.” Defense counsel then
       stated that she “was not privy to which counselors specifically were providing the treatment
       beforehand.” The circuit court responded, “Well, it’s a fishing expedition and it’s not allowed
       for medical records, psychiatric or otherwise.”
¶ 70       On appeal, defendant argues that T.A.’s mental health records, while potentially
       privileged, might contain relevant information. He contends that he is entitled to a remand to
       have the circuit court review those mental health records in camera to determine whether the
       records contain relevant information that could have been used to impeach T.A., and if so, he
       should receive a new trial. We disagree.
¶ 71       A criminal defendant has constitutional rights “to have compulsory process for obtaining
       witnesses in his favor” (U.S. Const., amend. VI) and a due process right to a fundamentally
       fair trial (People v. Wheeler, 151 Ill. 2d 298, 305 (1992)).
¶ 72       The parties disagree as to our standard of review. Defendant relies on People v. Newborn,
       379 Ill. App. 3d 240 (2008), to argue that the de novo standard of review applies because the
       circuit court failed to exercise any discretion in determining whether the requested mental
       health records might be relevant and impeaching. The State, however, frames the issue
       differently. The State begins with the circuit court’s denial of defendant’s request to issue
       subpoenas to T.A.’s mental health providers and asserts that the circuit court has “wide
       discretion in deciding whether a subpoena should issue.” People v. Jones, 295 Ill. App. 3d
       444, 450 (1998). Defendant’s reply brief to this court does not address the State’s argument.
       As discussed above, the record on appeal demonstrates that the State objected to the issuance
       of the subpoenas in part because defendant was seeking T.A.’s pre-accusation psychiatric and
       mental health records without having identified any materials therein that might be
       impeaching. We therefore must first consider whether the circuit court abused its discretion
       in denying defendant leave to subpoena those records. The circuit court “abuses its discretion
       when its decision is fanciful, arbitrary, or unreasonable to the degree that no reasonable
       person would agree with it.” People v. Ortega, 209 Ill. 2d 354, 359 (2004).
¶ 73       We find no abuse of discretion. At the hearing on whether the subpoenas should issue,
       defendant asserted that he was seeking records from five different providers but was unable
       to identify which of the providers T.A. had seen prior to coming forward with her allegations.
       Defendant’s theory was that, prior to coming forward, T.A. might have been asked whether
       she was being abused in any way and she might have denied being abused by her father.
       Defendant’s reply brief in the circuit court in support of his request contended that T.A.
       “suffered from emotional issues including depression and anti-social behaviors. According to
       family members, symptoms she exhibited included: making untrue and make believe
       statements. Any records of such conditions would be relevant to [T.A.’s] credibility as a

                                                 - 17 -
       witness.” Defendant did not, however, identify the “family members” who purportedly said
       that T.A. had a history of making untrue statements or identify what those allegedly untrue
       statements were. 4 The circuit court could therefore reasonably conclude that any
       impeachment material contained in T.A.’s pre-accusation treatment records was available
       from other sources.
¶ 74       Furthermore, in denying defendant’s request to issue the subpoenas, the circuit court
       delineated T.A.’s pre-outcry treatment records from her post-outcry treatment records and
       invited defendant to renew his request for pre-outcry treatment records. Defendant does not
       direct our attention to any portion of the record to suggest that he subsequently made a more
       particularized request for T.A.’s pre-outcry treatment records. Therefore, we cannot say that
       the circuit court abused its discretion in denying defendant leave to subpoena all of T.A.’s
       pre-outcry treatment records in the hopes of finding some pre-outcry impeachment material.
       The circuit court could reasonably conclude that the absence of any relevant specificity as to
       which providers T.A. had seen pre-outcry, coupled with defendant’s broad claim that T.A.
       might have discussed her abuse or been observed as having any tendency of “making untrue
       and make believe statements,” was tantamount to a “fishing expedition.” Since the circuit
       court did not abuse its discretion in denying defendant’s broad request to subpoena all of
       T.A.’s treatment records, the circuit court did not err by refusing to grant leave to subpoena
       pre-outcry medical and treatment records and to thereafter conduct an in camera review of
       those records.

¶ 75                                        CONCLUSION
¶ 76      For the foregoing reasons, the judgment of the circuit court is affirmed

¶ 77      Affirmed.




          4
           We also note that defendant did not proffer those family members during the hearing on the
       motion or call them as witnesses at trial.

                                                 - 18 -
