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April 27, 1995


Appeal from Circuit Court of Adams County. No. 93CF227. Honorable Mark A. Schuering, Judge Presiding.

Released for Publication June 6, 1995. As Corrected May 31, 1995.

Honorable Robert J. Steigmann, J., Honorable James A. Knecht, P.j., Honorable Frederick S. Green, J., Concurring

The opinion of the court was delivered by: Steigmann

JUSTICE STEIGMANN delivered the opinion of the court:

In November 1993, a jury convicted defendant, Marion J. Failor, of two counts of aggravated criminal sexual assault. (720 ILCS 5/12-14(b)(1) (West 1992).) The trial court later sentenced him to concurrent terms of imprisonment of 10 years on count I and 12 years on count II. On appeal, defendant argues that the trial court erred in (1) refusing to define "reasonable doubt" after a request to do so by a juror, and (2) admitting evidence of prior sexual acts between defendant and his daughter which took place outside the trial court's jurisdiction.

We disagree and affirm.


Defendant's daughter, D.F., was almost 15 years old at the time of trial and less than 13 years old when the charged conduct occurred. She testified at trial to the following events. Defendant had sexual contact with her since she was eight years old, beginning as touching and escalating to inter-course when she was 10 or 11 years old. The contact initially occurred in Missouri, where D.F. lived with her mother and defendant, and continued when they moved to Quincy and then to Lorraine, Illinois. Defendant and D.F.'s mother separated in April 1989, and defendant moved back to Quincy. D.F. visited defendant every other weekend, where the assaults continued until she stopped visiting him in 1991.

During jury deliberations, a juror sent out a note asking the trial court to define the term "beyond a reasonable doubt." The prosecutor asked the court to respond that the jury should decide for itself what reasonable doubt meant. Defendant's attorney did not object, but simply stated that he would "go with that and whatever the court decides to tell the jury." The court stated that it was inclined to refuse the juror's request and to instruct the jury to read the instructions of law previously given and continue its deliberations. The court then stated that it would be "more specific about the reasonable doubt issue, if both parties have some agreement." The prosecutor stated that merely instructing the jury to continue its deliberations might confuse the jurors. Instead, she asked the court to instruct the jurors that it was their job to determine what reasonable doubt meant. Defendant's attorney responded, "I completely agree with that, too. Whatever they decide reasonable doubt is, is what it is. I don't know if that's going to help them." The court told the parties that it would respond to the juror's request as follows: "the above matter is for the jury to determine. Please review all of your instructions as previously given and continue with your deliberations." Both attorneys approved the response.


A. Refusal To Define Reasonable Doubt

Defendant first argues that the trial court erred by refusing to instruct the jury on the definition of reasonable doubt. Defendant concedes that he failed to preserve this issue at trial but maintains that this court should nevertheless consider the issue under the plain error doctrine. However, application of the plain error doctrine presupposes an error, and we hold that no error occurred in this case.

The Supreme Court of Illinois has consistently held that neither the trial court nor counsel should define reasonable doubt for the jury. ( People v. Speight (1992), 153 Ill. 2d 365, 374, 606 N.E.2d 1174, 1177, 180 Ill. Dec. 97; People v. Cagle (1969), 41 Ill. 2d 528, 536, 244 N.E.2d 200, 204; People v. Malmenato (1958), 14 Ill. 2d 52, 61, 150 N.E.2d 806, 811; People v. Moses (1919), 288 Ill. 281, 285, 123 N.E. 634, 636.) Following the supreme court's clear mandate, the Illinois Pattern Jury Instructions, Criminal, provides no instruction defining reasonable doubt, indicating that none should be given. Illinois Pattern Jury Instructions, Criminal, No. 2.05 (3d ed. 1992).

Defendant argues that Illinois courts should reassess their position on defining reasonable doubt in light of the recent United States Supreme Court decisions in Sullivan v. Louisiana (1993), 508 U.S. , 124 L. Ed. 2d 182, 113 S. Ct. 2078, and Victor v. Nebraska (1994), 511 U.S. , 127 L. Ed. 2d 583, 114 S. Ct. 1239. However, neither of these cases holds that a trial court must define reasonable doubt upon request by the jury. They simply stand for the proposition that the Federal constitution ...

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