People v. Marcos, 995 N.E.2d 446

Defendant Jaime Marcos was convicted by a jury of three counts of predatory criminal sexual assault of an eight‑year‑old (one count penis-to-anus contact; two counts tongue-to-anus contact) and sentenced to three consecutive 6‑year terms (18 years).
The victim testified at trial; the prosecution also introduced the victim’s out‑of‑court outcry statements to her mother and to a social worker under the section 115‑10 hearsay exception. Defense counsel did not request the statutory jury instruction required when such outcry statements are admitted (IPI Crim. 4th No. 11.66).
Police obtained two signed Spanish statements from defendant in which he admitted licking the child’s anus and inserting his penis in the child’s anus; defendant also admitted licking the child to the mother.
There was no physical evidence admitted (no forensic testing of mattress or robe); the prosecution’s case relied on the victim’s testimony, the outcry statements, and defendant’s admissions.
Defendant appealed, contending (1) the trial court erred by not giving the mandatory 115‑10 jury instruction (forfeited at trial), and (2) alternatively, his counsel was ineffective for failing to request it; the State conceded one additional day of presentence custody credit.
The appellate court affirmed the conviction but ordered correction of the mittimus to add one day of credit for time served.

Issue	State's Argument	Marcos's Argument	Held
Failure to give IPI Crim. 4th No. 11.66 (statutory 115‑10 jury instruction) — plain error review	The outcry statements may be considered on the prosecution side along with other evidence; the evidence was not closely balanced.	Omission was plain error as the outcry statements materially aided the prosecution (especially on mouth‑to‑anus counts).	Omission was clear error but not plain error under the "closely balanced" prong because the evidence (victim testimony + outcries + defendant admissions) was not closely balanced; conviction affirmed.
Ineffective assistance for failing to request the 115‑10 instruction (Strickland prejudice)	No deficiency caused substantial prejudice because evidence (including defendant’s admissions) was overwhelming; no reasonable probability result would differ.	Counsel’s failure to request the instruction deprived Marcos of a meaningful safeguard and thus was constitutionally deficient and prejudicial.	Counsel’s omission did not produce Strickland prejudice; ineffective‑assistance claim rejected.
Presentence custody credit calculation	(State concurs) additional one day credit owed.	Marcos seeks additional day.	Mittimus corrected to reflect one additional day of presentence custody credit.

People v. Sargent, 239 Ill. 2d 166 (Ill. 2010) (failure to give the 115‑10 instruction is clear error; if evidence is overwhelming the omission does not constitute plain error)
People v. Piatkowski, 225 Ill. 2d 551 (Ill. 2007) (Sup. Ct. Rule 451(c) / plain‑error framework for unpreserved jury‑instruction claims)
People v. Herron, 215 Ill. 2d 167 (Ill. 2005) (forfeiture of unobjected instruction error unless Rule 451(c) plain error applies)
People v. Parker, 223 Ill. 2d 494 (Ill. 2006) (jury instructions must be considered as a whole to determine whether they fairly apprised the jury of applicable law)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two‑prong standard for ineffective assistance of counsel)