People v. Risper ( 2021 )

2020 IL App (1st) l60707
FOURTH DIVISION
Filing Date November 25, 2020
No. 1-16-0707
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, )
) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
) Cook County.
v. )
) No. 12 CR 209
BRODERICK RISPER, )
) The Honorable
Defendant-Appellant. ) Timothy Joseph Joyce,
) Judge, Presiding.
JUSTICE HALL delivered the judgment of the court, with opinion.
Justices Lampkin and Reyes concurred in the judgment and opinion.
OPINION
¶1 Following a bench trial, defendant Broderick Risper was convicted of predatory criminal
sexual assault of a child and sentenced to natural life imprisonment pursuant to section 11-
1.40(b)(2) of the Criminal Code of 2012 (Criminal Code) (720 ILCS 5/11-1.40(b)(2) (West
2016)) because this was his second conviction for predatory criminal sexual assault of a child.
On appeal, defendant contends that the trial court erred in barring the lay opinion testimony of
the victim’s mother that the victim was coached and further that, in light of the abolition of the
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death penalty in Illinois, section 11-1.40(b)(2) is facially unconstitutional because it mandates
the same sentence, life without parole, for a nonhomicide offense as the harshest sentence for
the most serious homicide offenses, thus violating the principle of proportionality of sentences
and the eighth amendment’s ban on cruel and unusual punishment (U.S. Const., amend. VIII).
For the reasons that follow, we affirm.
¶2 BACKGROUND
¶3 According to the evidence presented at trial, 47-year-old defendant sexually assaulted four-
year-old N.S.1 multiple times in 2011, until she reported the abuse to her mother, Jillian K., on
December 2, 2011. Defendant was arrested shortly thereafter and indicted for two counts of
predatory criminal sexual assault of a child. After a bench trial, defendant was convicted on
both counts and sentenced to mandatory natural life imprisonment. As defendant’s issues on
appeal are confined to the pretrial proceedings, we shall confine our recitation of the facts
primarily to those proceedings.
¶4 A. Pretrial Proceedings
¶5 Prior to trial, the State moved to admit other crimes evidence pursuant to section 115-7.3
of the Code of Criminal Procedure of 1963 (Procedure Code) (725 ILCS 5/115-7.3 (West
2012)). In its motion, the State argued that evidence of defendant’s sexual assault of five other
victims was admissible to prove that he had a propensity to commit sexual assaults. The State
also sought to admit evidence of outcry statements N.S. made to a social worker and an aunt.
1
The trial record contains a number of contradictory monikers and spellings; we will use the
following for consistency: N.S. (also identified as L.S.), H.F. (also identified as H.K.), Cherice (also
identified as Charice), and tutu (also identified as too-too).
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¶6 Specifically, with regard to the other crimes evidence, the State sought to introduce
evidence of the following: (1) defendant’s sexual assault of his ex-girlfriend’s daughter C.J.
from 1986 when she was 6 years old until she was 13; defendant threatened to kill or
impregnate C.J. if she reported the abuse; (2) defendant’s physical and sexual assault of K.P.,
the daughter of another ex-girlfriend, from 1994, when she was 8 years old, until the summer
of 1995; he was convicted of predatory criminal sexual assault of K.P. in 1998 and sentenced
to 25 years’ imprisonment; (3) defendant’s digital and oral molestation of 5-year-old H.F. in
2011 (H.F. is the niece of another of defendant’s ex-girlfriends and the cousin of the victim in
this case); (4) defendant’s sexual assault of his 9-year-old cousin T.W. while she was alone
with him in his car in 1989; and (5) defendant’s sexual assault of his 11-year-old niece J.R.
while she was alone with him in his car in 2009.
¶7 The trial court partially granted and partially denied the State’s motion regarding other
crimes evidence, finding that admission of the evidence of all five victim assaults would be
more prejudicial that probative. The court indicated that “[a]ny rational thinking individual
who heard five incidents would be convicting [defendant] based on the five incidents, and not
on the trial or the evidence presented.” The trial court granted the State’s motion to admit
evidence of the crimes involving K.P. and H.F., finding the evidence to be sufficiently reliable.
¶8 The trial court also partially granted and partially denied the State’s motion regarding prior
outcry statements of N.S. that were made to several witnesses in which she identified defendant
as the perpetrator of the sexual abuse under section 115-10(b)(1) of the Procedure Code (725
ILCS 5/115-10(b)(1) (West 2012)). Specifically, the State sought to admit two outcry
statements that N.S. made to her mother on December 2 and 3, 2011, regarding the abuse, a
statement to a social worker, and a statement to her aunt.
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¶9 Defendant raises an issue on appeal related to Jillian’s testimony during the hearing on the
motion. At the hearing, Jillian testified that N.S. approached her on December 2, 2011, and
said “My tutu hurts,” explaining that “tutu” was the word N.S. used to refer to her vagina.
When Jillian asked why her vagina hurt, N.S. stated that defendant “put his privacy in her
privacy.” N.S. repeated these statements to Jillian the following day.
¶ 10 On cross-examination, defense counsel asked Jillian if she believed that N.S. was coached
to accuse defendant of her sexual abuse:
“MS. KEENAN [(ASSISTANT PUBLIC DEFENDER)]: Ma’am, you had a
conversation with an investigator from the Public Defender’s Office on June 13, 2012, is
that correct?
JILLIAN K.: Correct.
MS. KEENAN: And during that conversation, isn’t it true that you told that investigator
*** that your daughter told you that your sister [Cherice] told her to say that [defendant]
licked her?
JILLIAN K.: No. ***
MS. KEENAN: What did you say?
JILLIAN K.: That [N.S.] told me that [Cherise] said to say that [defendant] licked
[H.F.]. He never licked [N.S.].
MS. KEENAN: When did [N.S.] tell you that?
JILLIAN K.: Maybe in February or March [of 2012].”
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¶ 11 On redirect, the State asked Jillian whether the statement N.S. made to her regarding licking
was about a separate victim, her cousin H.F., to which Jillian replied “Yes.” The State then
asked whether that had anything to do with N.S., and Jillian responded that it did not.
¶ 12 At the conclusion of the hearing, the trial court granted the State’s motion to admit the out-
of-court statements that N.S. made to her mother over defendant’s objections. The court also
allowed the State to introduce statements N.S. made to a social worker.
¶ 13 Defendant also moved for a competency hearing to determine whether N.S. was competent
to testify, asking the trial court to view N.S.’s video recorded victim sensitive interview to
determine her competency. The trial court granted defendant’s request and subsequently found
N.S. competent to testify at trial.
¶ 14 Just prior to trial, on November 11, 2015, the State moved to bar testimony related to the
statement that Jillian made to the investigator from the public defender’s office that she
believed her sister Cherice told N.S. to say that defendant also abused H.F. The State argued
that this statement was not only hearsay but was also irrelevant as it did not relate to
defendant’s abuse of N.S. Defendant argued for admission of the statement, contending that it
showed that N.S. was coached to accuse defendant of sexual abuse. The trial court noted that
there was no showing that N.S. was coached to accuse defendant of abusing her, only that some
other adult in the household tried to get N.S. to say something about defendant having molested
another child. The trial court found that there was no coaching going on with respect to the
abuse of N.S., and the evidence did not seek to establish that. The trial court then granted the
State’s motion to bar the statement.
¶ 15 Additionally, defendant made an oral motion to admit evidence at trial of Jillian’s opinion
that her sister put N.S. up to this because it shed light on N.S.’s credibility. Defendant argued
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that Jillian believed that her sister put her up to it because of the statement made regarding her
sister telling N.S. to say that defendant also abused H.F.
¶ 16 The trial court noted that beliefs were not admissible and further that even if the victim was
questioned as to whether someone put her up to it, the defense would be unable to prove it up;
however, it noted that defendant would be allowed to ask because it was a bench trial.
¶ 17 B. Trial Proceedings
¶ 18 Defendant’s bench trial proceeded, with the State presenting live testimony from N.S., who
testified that she was born on May 3, 2007, and was eight years old at the time of trial. Her
testimony was consistent with her prior outcry statements that defendant penetrated her
vaginally with his penis several times before she told her mother that her vagina hurt because
of it. The State also presented as a video-record victim sensitive interview (VSI) of N.S. that
took place at the Chicago Children’s Advocacy Center on December 6, 2011, and live
testimony from the victim’s brother Marshawn S., Jillian, emergency room physician Dr.
Alicia Sanders, and Dr. Marjorie Fujara. Dr. Sanders testified that her medical examination of
N.S. indicated multiple abrasions and lesions inside her vagina. The parties stipulated that
H.F.’s testimony would be consistent with her testimony from defendant’s July 9, 2015, trial
for his charges of predatory criminal sexual assault against H.F. The parties also stipulated that
K.P.’s testimony would be consistent with her testimony from defendant’s July 9, 2015, trial
for his charges of predatory criminal sexual assault against H.F. The State also presented a
certified copy of defendant’s birth certificate, showing his date of birth as April 14, 1964.
¶ 19 Defendant did not testify but entered a stipulation that Assistant State’s Attorney (ASA)
Tracy Senica would testify that on January 3, 2014, N.S. informed her that the abuse took place
in the bedroom and not the bathroom of defendant’s apartment.
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¶ 20 During closing arguments, defendant argued that because the other outcry victim and
Cherice were in the house when the initial outcry was made on December 2, 2011, the
circumstances made it unreliable. Defendant also argued that Jillian did not believe N.S.’s
outcry because she did not react when N.S. first told her about the abuse.
¶ 21 The trial court stated that it believed N.S. and found that both she and her brother testified
in a straightforward manner and they answered questions without thought or hesitation, which
indicated that they were telling the truth or endeavoring to tell the truth about an incident that
occurred when they were only four and five years old. The court also found that N.S.’s VSI
was credible and found it insignificant to her credibility that she testified as to different
locations where the abuse occurred. The court also found Jillian to be credible, noting that
when N.S. approached her to complain about her pain, Jillian’s open-ended question, why does
it hurt, elicited the outcry about the abuse. The court found it “challenging” to believe that a
four-year-old would make up abuse in response to such an open-ended question. The court also
noted the medical findings were consistent with sexual assault, although not conclusive proof
of the abuse. The court did not give much weight to H.F.’s testimony to show propensity
because of the lack of corroborating evidence but did give weight to K.P.’s testimony, finding
that she testified in an forthright manner as an adult about what happened to her as a child. The
court found that K.P.’s testimony showed defendant’s propensity to commit sexual offenses
against female children and be motivated to do so. Defendant was then convicted of both counts
of predatory criminal sexual assault of a child.
¶ 22 C. Posttrial Proceedings
¶ 23 Defendant’s motion for new trial was heard on February 2, 2016. In his motion, defendant
argued, among other things, that the trial court erred in granting the State’s motion to bar
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evidence that N.S. reported to her mother that an aunt (Cherice) told her to make allegations
against defendant concerning another child. He described this as evidence of possible coaching
of N.S. at the time of the “said outcry,” and the fact that any coaching of the alleged victim
had occurred was relevant regarding her credibility. Defendant also argued that the trial court
erred in barring him from eliciting testimony from Jillian about her belief that N.S. was being
coached because a child’s “sensibility, nature, and character are matters within a mother’s
personal knowledge and beliefs arrived at regarding the truthfulness of her child in this regard
should be relevant and admissible in this type of prosecution.”
¶ 24 In response, the State argued that questioning Jillian about her personal belief regarding
the truth and veracity of the victim invaded the court’s province as trier of fact, that it was up
to the trier of fact to determine witness credibility, and as such, Jillian’s opinions were
inadmissible.
¶ 25 The trial court questioned defendant whether his coaching argument concerned abuse of
another child or was it related to the allegations N.S. made regarding him that were the subject
of the trial. When defense counsel clarified that there were no allegations of coaching regarding
the allegations against defendant in this case, the trial court denied the motion.
¶ 26 On February 11, 2016, the State filed its notice of intent to seek a sentence of natural life
for defendant pursuant to section 11-1.40(b)(2) of the Criminal Code (720 ILCS 5/11-
1.40(b)(2) (West 2016)) based on his prior 1998 conviction for predatory criminal sexual
assault of a child.
¶ 27 During defendant’s sentencing hearing, he did not present any evidence in mitigation but
argued in allocution that he did not have a fair trial.
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¶ 28 The trial court subsequently sentenced defendant to a mandatory natural life sentence as
this was his second conviction for predatory criminal sexual assault of a child. This timely
appeal followed.
¶ 29 ANALYSIS
¶ 30 On appeal, defendant contends that the trial court erred in barring the lay opinion testimony
of the victim’s mother that the victim was coached and further that, in light of the abolition of
the death penalty in Illinois, section 11-1.40(b)(2) (id.) is facially unconstitutional because it
mandates the same sentence, life without parole, for a nonhomicide offense as the harshest
sentence for the most serious homicide offenses, thus violating the principle of proportionality
of sentences and the eighth amendment’s ban on cruel and unusual punishment (U.S. Const.,
amend. VIII).
¶ 31 A. Admissibility of Lay Witness Opinion Testimony
¶ 32 Defendant first contends that the trial court improperly barred admissible lay opinion
testimony and that he should receive a new trial. Specifically, defendant contends that he was
prevented from introducing Jillian’s opinion that the four-year-old victim was being coached.
He argues that such testimony would have rested on her perceptions of the witness, because it
would have helped the factfinder determine whether he committed the charged offense, and
did not involve technical knowledge, thus the trial court erred in excluding the evidence. He
also asserts that the testimony would have bolstered the already-existing evidence of coaching,
the witness had admitted lying shortly after her outcry, and the State could not prove the error
harmless.
¶ 33 In contrast, the State contends that the trial court properly barred Jillian’s opinion on the
credibility of the victim’s accusations against defendant as this was improper opinion evidence
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involving a determination that could only be made by the trier of fact. The State further asserts
that defendant did not have any relevant evidence to substantiate such “opinion testimony”
because there was no evidence that N.S. was coached to say that defendant sexually assaulted
her, and nothing in the record suggested that Jillian believed N.S. was coached to make those
claims. The State claims that defendant’s suggestion that Jillian was an “expert” on N.S. was
a thinly veiled attempt to attack N.S.’s credibility absent collateral evidence that Cherice
coached N.S. to fabricate allegations that defendant abused H.F. and the trial court’s decision
to exclude the evidence was proper.
¶ 34 Rule 701 of the Illinois Rules of Evidence sets forth the foundational requirements for an
“opinion[ ]” or “inference[ ]” offered by a witness who is not testifying as an expert. Ill. R.
Evid. 701 (eff. Jan. 1, 2011). First, it must be “rationally based on the perception of the
witness.” Id. This provision simply restates “the general requirement that a witness must have
personal knowledge of the matter to testify to it.” (Internal quotation marks omitted.) People
v. Loggins, 2019 IL App (1st) 160482, ¶ 79. The opinion or inference must also be “helpful to
a clear understanding of the witness’ testimony or the determination of a fact in issue” and “not
based on scientific, technical, or other specialized knowledge within the scope of Rule 702.”
Ill. R. Evid. 701 (eff. Jan. 1, 2011). Rule 702 sets forth the foundational requirements for expert
opinion testimony. See Ill. R. Evid. 702 (eff. Jan. 1, 2011). Neither rule distinguishes between
expert and lay witnesses, but rather between expert and lay testimony. Loggins, 2019 IL App
(1st) 160482, ¶ 82.
¶ 35 Under Illinois law, “the testimony of a lay witness must be confined to statements of fact
of which the witness has personal knowledge.” (Internal quotation marks omitted.) People v.
McCarter, 385 Ill. App. 3d 919, 934 (2008); Ill. R. Evid. 602 (eff. Jan. 1, 2011). Such opinion
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must be based on his or her personal observations and recollections of concrete facts, not on
specialized knowledge. People v. Jackson, 2017 IL App (1st) 142879, ¶ 49. The opinion
testimony is also improper and prejudicial when it goes to the ultimate question of fact to be
decided by the jury. Id. It is the factfinder’s job to draw inferences from the facts, not the
witnesses’ job to provide inferences for the jury. People v. Holveck, 141 Ill. 2d 84, 106 (1990).
Additionally, lay opinion testimony must be relevant to be admissible, like all other evidence.
People v. Owens, 372 Ill. App. 3d 616, 622 (2007).
¶ 36 The admission of evidence is reviewed under the abuse of discretion standard of review.
People v. Frazier, 2019 IL App (1st) 172250, ¶ 26. An abuse of discretion occurs where the
trial court’s decision is arbitrary, fanciful, or unreasonable or where no reasonable person
would agree with the position adopted by the trial court. Id.¶ 37 Here, defendant contends that the trial court improperly excluded opinion testimony from
Jillian that N.S. was coached that cast doubt on whether or not he committed the offense. We
disagree.
¶ 38 First, we note that during the pretrial proceedings on the State’s motion to admit N.S.’s
outcry statements, defendant elicited testimony from Jillian that she spoke to an investigator
from the public defender’s office and indicated that N.S. told her in February or March 2012
that Cherice told her to say that defendant licked H.F. Jillian clarified that N.S. never said that
defendant licked her but only that Cherice told her to implicate defendant in an offense about
a second victim. In a later motion, defendant sought to admit statements that Jillian made to an
investigator that she “believed” that Cherice put N.S. up to this because of the statement N.S.
made regarding the other victim. This would not have been proper lay opinion testimony, as it
would not have been based on personal knowledge or facts. Defendant attempts to argue that
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such testimony was admissible because Jillian had personal knowledge and observations of
N.S. because she was her mother. We agree with the State that such argument amounts to an
attempt to admit such evidence based on Jillian’s “expert” knowledge of N.S. because she is
her mother without having her qualified as an expert under Rule 702 and an attempt to attack
N.S.’s credibility. This would have been improper.
¶ 39 Moreover, contrary to defendant’s assertion, Jillian’s belief that her sister coached N.S. to
say that he also abused H.F. does not automatically establish that she fabricated her own abuse
by defendant. N.S. told her mother twice in December 2011 that defendant abused her, and she
repeated those statements to various healthcare workers and a social worker within a few days.
The statement regarding H.F. was made several months after N.S. made the initial outcries that
defendant abused her, and we fail to see how that would cast doubt on N.S.’s identification of
defendant in her own abuse. Nor does defendant’s focus on a statement that N.S. made to the
interviewer during the video that she previously lied, without more, cast doubt on her
identification of defendant. Additionally, such statement was irrelevant to the ultimate issue to
be decided in the trial, whether defendant abused N.S., as it concerned a separate victim.
¶ 40 We conclude that the trial court did not abuse its discretion in excluding the statement.
¶ 41 B. Constitutionality of Section 11-1.40(b)(2) of the Criminal Code
¶ 42 Defendant further contends that the mandatory sentencing provision of section 11-
1.40(b)(2) of the Criminal Code (720 ILCS 5/11-1.40(b)(2) (West 2016)) is facially
unconstitutional because natural life imprisonment is the harshest sentence available in Illinois
due to the abolition of the death penalty and violates the principle of proportionality of
sentences and the prohibition against cruel and unusual punishment of the eighth amendment
(U.S. Const., amend. VIII). He argues that the mandatory sentence, without the trial court being
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permitted to consider any of his personal characteristics violates the eighth amendment.
Defendant acknowledges that the United States Supreme Court precedent is contrary to his
position; however, he argues that the Court’s decisions regarding de facto life sentences for
minors suggests that the Court is turning away from that viewpoint.
¶ 43 We begin by noting that defendant’s challenge to section 11-1.40(b)(2) is framed solely as
a facial constitutional challenge and he does not challenge the validity of that section as it
applies to him, as he makes no arguments in support of an as-applied challenge. Additionally,
we note that it appears that defendant would concede that his mandatory life sentence would
not violate the eighth amendment if Illinois still had the death penalty.
¶ 44 The analysis is guided by familiar principles. All statutes carry a strong presumption of
constitutionality. People v. Hollins, 2012 IL 112754, ¶ 13. Accordingly, this court will uphold
statutes whenever reasonably possible, resolving all doubts in favor of their validity. People v.
Boeckmann, 238 Ill. 2d 1, 6-7 (2010). To rebut this presumption, a party challenging a statute
must establish clearly that it violates the constitution. People v. Mosley, 2015 IL 115872, ¶ 22.
On the constitutional issues before us, our review is de novo. Id.¶ 45 A facial challenge to the constitutionality of a legislative enactment is the most difficult
challenge to successfully raise because an enactment is facially invalid only if no set of
circumstances exist under which it would be valid. United States v. Salerno, 481 U.S. 739, 745
(1987); Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449
(2008); Napleton v. Village of Hinsdale, 229 Ill. 2d 296, 305-06 (2008). The fact that the
enactment could be found unconstitutional under some set of circumstances does not establish
its facial invalidity. Napleton, 229 Ill. 2d at 306; People v. Johnson, 2015 IL App (1st) 133663,
¶ 27.
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¶ 46 A statute that is unconstitutional on its face, meaning that no set of circumstances exist
under which it would be valid, is void ab initio. Mosley, 2015 IL 115872, ¶ 55.
¶ 47 The eighth amendment states: “Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.” U.S. Const., amend. VIII.
¶ 48 Section 11-1.40(b)(2) provides in pertinent part:
“A person who has attained the age of 18 years at the time of the commission of the offense
and who is convicted of a second or subsequent offense of predatory criminal sexual assault
of a child * * * shall be sentenced to a term of natural life imprisonment. The commission
of the second or subsequent offense is required to have been after the initial conviction for
this paragraph (2) to apply ***.” 720 ILCS 5/11-1.40(b)(2) (West 2016).
¶ 49 We find it relevant that there is no Illinois or United States Supreme Court case that stands
for the proposition that a sentencing statute mandating life imprisonment without the
possibility of parole for adult defendants without permitting the sentencing court to take into
account the defendant’s personal characteristics is facially unconstitutional. Nor does
defendant cite any. To the contrary, our research has yielded the opposition conclusion,
specifically in People v. Rhoades, 2018 IL App (4th) 160457, which defendant does not cite,
in which this court considered and rejected the exact argument as the one defendant raises in
this appeal.
¶ 50 In Rhoades, we considered the defendant’s facial unconstitutionality challenge to section
11-1.40(b)(2) because the abolition of the death penalty in Illinois made natural life without
parole the harshest sentence available for any offense in the state and violated the principles of
proportionality and the eighth amendment’s ban on cruel and unusual punishment. Id. ¶ 1. We
concluded that the fact that Illinois no longer imposes the death penalty, thus making a natural
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life sentence without the possibility of parole the most severe sentence allowed in Illinois for
the most severe and outrageous crime imaginable, does not mean a mandatory life sentence for
a less egregious offense than murder should automatically be deemed constitutionally
disproportionate. Id. ¶ 18. We further stated that the defendant’s sentence did not lead to an
inference of gross disproportionality based on the crime for which he was convicted, and we
did not compare the defendant’s sentence with the sentence a murder might receive. Id.
¶ 51 Additionally, we found that the defendant’s contention that his federal proportionality
arguments were supported by our supreme court’s decision in People v. Huddleston, 212 Ill.
2d 107 (2004), was meritless. Rhoades, 2018 IL App (4th) 160457, ¶ 19. We noted that in
Huddleston, the court held that a mandatory life sentence for a defendant convicted of
predatory criminal sexual assault against two or more children did not violate the proportionate
penalties clause of our state constitution and that our state constitution did not require
rehabilitative potential to be given greater weight than the seriousness of the offense in
determining a proper sentence. Id. (citing Huddleston, 212 Ill. 2d at 129). We found that our
supreme court stated that the legislature could clearly respond to the reasonable perception that
sex offenders have a substantial risk of committing additional sex offenses after being released
from prison, which is precisely what happened in Rhoades. Id. ¶ 20 (citing Huddleston, 212
Ill. 2d at 138). We also determined that statutes that provide for enhanced classification of sex
offenses and/or sentences for those offenses are a common method of protecting children; the
chance that an offender will commit a crime against a child while incarcerated is zero because
the offender will have no access to potential victims. Id. Additionally, the imposition of lengthy
prison sentences on individuals convicted of sex crimes against children might deter others
from committing similar acts. Id. (citing Huddleston, 212 Ill. 2d at 140). We concluded that
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the legislature’s decision to leave in place a mandatory life sentence for a sexual predator failed
to reflect or in some way offended the same societal standards as the death penalty and found
that section 11-1.40(b)(2) was not unconstitutional on its face. Id. ¶ 25.
¶ 52 We reach the same result here. As was the case in Rhoades, we find that there is nothing
in section 11-1.40(b)(2) which would lead us to conclude that it cannot or should not be validly
applied to adult defendants without consideration of their personal characteristics. The severity
of defendant’s crime brings the mandatory life sentence he received within established
constitutional boundaries. See Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (the eighth
amendment does not require strict proportionality between crime and sentence; rather it forbids
only extreme sentences that are grossly disproportionate to the crime). Defendant was
convicted of predatory criminal sexual assault of a 4-year-old minor occurring when he was
47 years old. In addition, defendant had a prior conviction in 1998 for predatory criminal sexual
assault on a different minor who was eight or nine years old at the time of the offense, and was
sentenced to a 25-year prison term. Moreover, the legislature has found fit to mandate a
sentence of natural life without the possibility of parole to defendants who have committed the
offense of predatory criminal sexual assault of a child after already having been previously
convicted of the same offense. 720 ILCS 5/11-1.40(b)(2) (West 2016). The purpose of the
statute is clear: to protect children, to prevent recidivism and to serve as a deterrent to similar
would-be offenders.
¶ 53 We also reject defendant’s argument that this court should review the sentencing schemes
of other jurisdictions. While it “may” be helpful, there is no mandate for such inquiry. See
Harmelin, 501 U.S. at 1004-05.
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¶ 54 We conclude, as this court did in 2018 in Rhoades, that section 11-1.40(b)(2) of the
Criminal Code is not facially unconstitutional.
¶ 55 CONCLUSION
¶ 56 For the foregoing reasons, defendant’s conviction and sentence are affirmed.
¶ 57 Affirmed.
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Cite as: People v. Risper, 2020 IL App (1st) 160707Decision Under Review: Appeal from the Circuit Court of Cook County, No. 12-CR-208;
the Hon. Timothy Joseph Joyce, Judge, presiding.
Attorneys James E. Chadd, Patricia Mysza, and , of State
for Appellate Defender’s Office, of Chicago, for appellant.
Appellant:
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Alan
for J. Spellberg and , Assistant State’s Attorneys,
Appellee: of counsel), for the People.
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