People v. Gonzalez , 2022 IL App (2d) 190831-U ( 2022 )

2022 IL App (2d) 190831-UNo. 2-19-0831
Order filed February 10, 2022
NOTICE: This order was filed under Supreme Court Rule 23(b) and is precedent except
in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of DeKalb County.
)
Plaintiff-Appellee, )
)
v. ) No. 15-CF-619
)
ALEJANDRO GONZALEZ, ) Honorable
) Robbin J. Stuckert,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE HUTCHINSON delivered the judgment of the court.
Presiding Justice Bridges and Justice Zenoff concurred in the judgment.
ORDER
¶1 Held: The trial court did not err in granting the State’s motion for discretionary transfer
from juvenile to criminal court, as its findings based on the statutory factors in the
Juvenile Court Act were an exercise of sound judicial discretion. Defendant’s trial
counsel was not ineffective for failing to present a motion to suppress defendant’s
statements to police because there exists no reasonable probability that the trial
court would have granted such a motion. The trial court did not err in denying
defendant’s post-trial motion in arrest of judgment. The evidence presented was
sufficient to support the trial court’s finding of defendant’s guilt beyond a
reasonable doubt.
¶2 Defendant, Alejandro Gonzalez, appeals his conviction of ten counts of aggravated
criminal sexual assault in violation of sections 11-1.30(b)(i) and (b)(ii) of the Criminal Code of
2022 IL App (2d) 190831-U2012 (Criminal Code). 720 ILCS 5/11-1.30(b)(i), (ii) (West 2018). He contends that the trial court
erred when it (1) granted the State’s motion for discretionary transfer from juvenile to criminal
court pursuant to section 5-805(3) of the Juvenile Court Act of 1987 (Juvenile Court Act). 705
ILCS 405/5-805(3) (West 2016); (2) found defendant had been proven guilty on all counts beyond
a reasonable doubt; and (3) denied his post-trial motion in arrest of judgment pursuant to section
116-2 of the Code of Criminal Procedure of 1963 (Code of Criminal Procedure). 725 ILCS 5/116-
2 (West 2018). Defendant additionally contends that he received ineffective assistance of trial
counsel.
¶3 I. BACKGROUND
¶4 Pretrial Proceedings
¶5 On August 31, 2015, then-17-year-old defendant 1 was arrested on ten counts of aggravated
criminal sexual assault. He was charged as an adult. On September 14, 2015, a DeKalb County
grand jury returned a true bill of indictment charging defendant with ten acts of aggravated
criminal sexual assault, alleged to have been committed between August 18, 2013, and June 9,
2015. Counts I-V alleged that defendant, who was under 17 years of age, committed an act of
sexual penetration with M.G., who was at least nine years of age but under 13 years of age, and
that by the use of force or threat of force, placed his penis in the anus of M.G. in violation of
section 11-1.30(b)(ii) of the Criminal Code. 720 ILCS 5/11-1.30(b)(ii) (West 2018). Counts VI-X
alleged that defendant committed the offense of aggravated criminal sexual assault in that
defendant was under 17 years of age and committed an act of sexual penetration with the minor
B.G., who was under nine years of age, and defendant placed his penis in the anus of B.G. in
1
Defendant’s DOB is May 10, 1998.
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2022 IL App (2d) 190831-Uviolation of section 11-1.30(b)(i) of the Criminal Code. 720 ILCS 5/11-1.30(b)(i) (West 2018).
Defendant’s age during the alleged date range placed him under the protection and provisions of
the Juvenile Court Act (705 ILCS 405/1 et seq).
¶6 On October 2, 2015, defendant’s counsel raised a bona fide doubt as to defendant’s fitness
to stand trial. An order was entered, and Dr. Jane Braden was appointed to perform an initial fitness
evaluation on defendant. Dr. Braden issued a November 9, 2015, report stating as her initial finding
that a bona fide doubt as to defendant’s fitness existed. Dr. Braden was then ordered to complete
a full fitness evaluation on defendant. Her full fitness report, dated January 16, 2016, consisted of
evaluations of defendant on November 25, 2015, and December 29, 2015. Dr. Braden’s summary
and opinions of those evaluations was that defendant was unfit for trial. Braden wrote in her report
that defendant has felt hopeless his entire life and told her that he wanted to die. She recounted
defendant having repeatedly attempted suicide.
¶7 A hearing on defendant’s fitness was held on February 22, 2016. In addition to her
submitted report, Dr. Braden testified at the hearing and offered her opinion that defendant’s best
interests would be served by allowing him to continue outpatient services while in the custody of
his father until a bed became available in an inpatient hospital setting. Dr. Braden believed that if
defendant were taken out of his familiar home environment, he may “decompensate” and take a
longer time to be restored to fitness. Following Dr. Braden’s testimony, the trial court found
defendant unfit for trial and ordered him to remain in the custody of his father until an inpatient
bed became available with the Department of Human Services.
¶8 On May 5, 2016, the trial court conducted another hearing on defendant’s fitness and was
presented with a report from Dr. Joseph McNally, a board-certified psychiatrist that had been
treating defendant at Streamwood Behavioral Health Care. Dr. McNally’s report opined that
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2022 IL App (2d) 190831-Udefendant was fit to stand trial. The trial court accepted the report’s findings and made its own
finding, stipulated to by the parties, that defendant had been restored to fitness. Defendant was
released to his father’s custody.
¶9 On February 7, 2017, the State filed a motion for discretionary transfer from juvenile court
to criminal court pursuant to section 5-805(3) of the Juvenile Court Act (705 ILCS 405/5-805(3)
(West 2016)), alleging that it was not in the best interests of the public to continue defendant’s
proceedings under the Juvenile Court Act. Hearings on the State’s motion were held on March 17
and May 3, 2017, before Judge Marcy Buick. Prior to witness testimony, the trial court admitted
police reports and interviews conducted with the minor victims.
¶ 10 Dr. Jane Braden, a clinical psychologist, declared an expert in her field by the trial court,
was called to testify by defendant. She recalled having seen documentation that defendant had
been diagnosed with bipolar disorder and depression. She recounted her evaluations of defendant
in which he told her that he heard voices and suffered from auditory and visual hallucinations. Dr.
Braden opined that defendant’s mental health was in a fragile state and was concerned that his
mental health may deteriorate if confined before trial. She recommended defendant be subject to
intensive outpatient treatment and partial hospitalization for mental health treatment. She testified
that defendant’s IQ put him in the low average range.
¶ 11 The State called Michael Venditti, the juvenile probation supervisor for DeKalb County
Court Services, to testify. Venditti testified that a juvenile charged with aggravated criminal sexual
assault would typically undergo a sex offender treatment evaluation completed by a certified
therapist. Venditti said that he was aware of two agencies in the area that provide sex offender
treatment for juveniles. It was possible, in Venditti’s experience, that a person of defendant’s age
(nearly 19 at the time of the hearing) to complete sex offender treatment while still under the
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2022 IL App (2d) 190831-Ujurisdiction of the juvenile court. When a sex offender is on probation following a juvenile court
disposition, Venditti said that community-based treatment is employed unless the sex offender
evaluation provides that such treatment poses too great a risk to community safety. He was not
aware of any inpatient sex offender treatment programs available to defendant in Illinois. Venditti
testified that while residential treatment facilities for juveniles do exist in the state, the individual
would have to be under the age of 18 prior to entering such a facility. He did not specify as to sex
offender specific treatment programs available within the Illinois Department of Juvenile Justice.
¶ 12 On May 12, 2017, the trial court judge granted the State’s motion for discretionary transfer
from juvenile court to criminal court. In granting the State’s motion, the trial court found that
“The statutory analysis in this case is found in 705 ILCS 405/5-905(3). Under that
analysis first the Court does find there is probable cause to believe that the allegations in
the State’s motion are true. Specifically there is probable cause to believe that the defendant
committed the offenses alleged by indictment in this case and that the defendant was 15
and 16 years old at the time the offenses were committed.
The second part of the analysis as to whether or not it is in the public’s best interest
to allow the defendant’s case to proceed under the Juvenile Court Act, the Court considered
the following relevant factors: This defendant is 18 years old. He will be 19 years old in
one month on June 10, 2017. If he were to plead guilty or be found guilty of these offenses,
the juvenile court would have jurisdiction over him only until June 10, 2019.
As to the history of the defendant, he alleges he was sexually abused as a child. He
has no prior delinquency history. He is reported to be of low average intelligence. He has
been diagnosed with depression and bipolar disorder. He has been prescribed medications
for these diagnoses. He has alleged that he experiences hallucinations. He has been
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2022 IL App (2d) 190831-Uemployed. He has received an education. He attended school and in spite of these mental
health issues, some of which may be caused by the fact that he’s been charged in this case,
he has been able to function in society.
As to the circumstances of the offenses alleged in this case, all of these offenses are
charged as Class X felonies. Aggravated criminal sexual assault, they are all very serious
charges. He is charged as the sole actor. This is not a case where it alleged he is accountable
for somebody else’s actions.
There is evidence the offenses were committed in an aggressive and premeditated
manner. There are allegations the defendant threatened harm to the victims if they told
anyone of these alleged acts. In addition, the offenses as alleged are by their very nature
aggressive acts.
As to treatment programs, there are treatment programs for individuals convicted
of these types of offenses in both the juvenile court system and the adult justice systems.
As to whether the security of the public requires sentencing under the Unified Code
of Corrections, this defendant has no history of court-ordered services and it is unknown
whether he would participate meaningfully in services if ordered.
Is there a reasonable likelihood he can be rehabilitated before the expiration of the
possible juvenile court jurisdiction? Again, there simply is no information to suggest that
he can be rehabilitated within two years’ time.
And as to the adequacy of punishment or services under the Juvenile Court Act, in
this case two years of the remaining juvenile court jurisdiction is not adequate for these
offenses. If he were to not cooperate with services or need additional time to be
rehabilitated, the Court would lose jurisdiction and cannot order the case to be continued
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2022 IL App (2d) 190831-Uor order that more services be put in place beyond his 21st birthday, and given the
seriousness of these charges and that time frame, the security of the public cannot be
assured and the Court must and does conclude that it is not in the best interests of the public
to proceed with this case under the Juvenile Court Act and so the State’s motion is granted.”
¶ 13 Trial
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¶ 14 The bench trial commenced on June 5, 2018. The State first called victim M.G. At the time
of his testimony, M.G. was 13 years old and going into eighth grade. His younger sister is victim,
B.G. Defendant is M.G. and B.G.’s cousin. M.G. testified that he had not seen or had contact with
defendant in nearly three years prior to his testimony but used to spend every weekend with him
for years prior to August 2015, beginning when M.G. was in preschool. M.G. recalled visiting
defendant at his house in what he believed was Sycamore. Defendant lived in the Sycamore house
with his parents.
¶ 15 M.G. testified that during visits to defendant’s house, defendant “would have touched my
anus” on “the inside” with “his penis.” M.G. said that this inappropriate touching lasted from when
he was in preschool until he was 10 years old. He could not recall how many times it had happened
except to say it “has been a lot.” He recounted that defendant would touch him in the described
manner “when we ever came over” to defendant’s house. The touching would occur in either
defendant’s or defendant’s mother’s bedroom. M.G. recalled that incidents occurring in
defendant’s bedroom involved defendant “either on the bed or standing,” putting his hands around
M.G.’s waist and “his penis would have been in my anus.” He stated that he couldn’t get away
because he “was very weak and he always held on very tight.” M.G. noticed blood when he went
to the bathroom following the contact with defendant.
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2022 IL App (2d) 190831-U¶ 16 The “few times” that defendant touched M.G. in defendant’s mother’s room, M.G. would
be on the bed or by a chair on his knees with his hands on the bed. He stated that this happened
“more than ten times” at the “new house.” When asked by the State if he knew if ten times was
“for sure *** the number of times,” M.G. responded “[f]or sure.” He was then asked if it “[c]ould
have happened more times than that even?” M.G. responded in the affirmative.
¶ 17 M.G. testified that defendant “said to me that if I ever told my mom or dad or anybody
else, that I would have gotten in trouble.” During the times that the alleged incidents occurred in
defendant’s house, M.G.’s parents and sister would be in the living room or kitchen.
¶ 18 M.G. recalled the evening of August 11, 2015, when his sister, B.G., told their parents what
had happened with defendant. M.G. was told to go into his parents’ room while they spoke with
B.G. When his mother asked him if what B.G. had told them was true, M.G. testified that he tried
to “keep it like nothing had happened but then [his] mom said [B.G.] had told and [he] broke.”
M.G.’s mother recorded the conversation with he and B.G. The family then left and went to
defendant’s house.
¶ 19 There, M.G.’s parents played the recording of the conversations with the M.G. and B.G.
Defendant arrived sometime later and denied the accusations when confronted by M.G.’s parents.
M.G. recalled one of his parents telling defendant “A kid doesn’t just say something like that
happening to him.” Defendant, according to M.G., responded “that he didn’t know it was wrong.”
Before M.G. and his family left defendant’s home, defendant said “that it had happened to him.”
After the family left, M.G.’s mother called the police, and they went to the police station. M.G.
recalled police questioning his mother that night but was not himself interviewed by an investigator
until several days later.
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2022 IL App (2d) 190831-U¶ 20 On cross-examination, M.G. testified that the home at which he would visit defendant was
“His first one, the blue green one with the backyard and the mobile one.” M.G. was shown
Defendant’s Exhibit A and identified the photograph therein as defendant’s “first house” and “the
blue house.” When asked if the house identified in the photograph was “the Sycamore home” that
M.G. had earlier spoke about, he stated that he could not remember, but reiterated that it was the
house where defendant began touching him inappropriately. He could not recall how many times
defendant touched him inappropriately in that house, except to say that it had been “more than
ten.”
¶ 21 M.G. testified that the inappropriate contact occurring in defendant’s mother’s room
happened in both “the old house and new house.” He was shown Defendant’s Exhibit B and
identified the photograph therein as defendant’s “new house” and “the yellow house.” The
incidents that occurred in defendant’s room happened exclusively in the “old house” or the “blue
house.” M.G. could not recall how many times defendant touched him inappropriately in the
“yellow house” except to say that it had been “more than ten.”
¶ 22 M.G. admitted that he told his parents that he could not remember how many times
defendant touched him, or in which house the incidents occurred. When asked to clarify how he
could be sure of how many times the incidents occurred at the time of his trial testimony, he stated
“because certain memories keep coming up.” M.G. testified that inappropriate touching from
defendant did not happen every time he visited the house, “it happened most of the time I went.”
¶ 23 Defense counsel asked M.G. if he had told his mother on September 18, 2015, in which
house the incidents had occurred. M.G. recalled that he “said it happened in the house that they
live in now.” Defense counsel then played Defendant’s Exhibit C; a recording made on September
18, 2015. The recording was of M.G.’s mother asking him about which house the incidents with
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2022 IL App (2d) 190831-Udefendant had occurred. He told his mother on September 18, 2015, that the incidents all happened
in the old house.
¶ 24 On redirect examination, M.G. stated that the incidents with defendant happened in both
defendant’s old house and new house. He further testified that incidents in the new house occurred
in defendant’s room and defendant’s mother’s room.
¶ 25 The State then called B.G. to testify. At the time of her testimony, B.G. was 11 years old
and entering the sixth grade. She had not seen defendant since 2015. Prior to that time, B.G.
testified that she and her family would go to defendant’s home every Sunday. She could only
remember having visited defendant’s new house depicted in Defendant’s Exhibit B. During a visit
to defendant’s home in “wintertime” when she was in “second grade,” B.G. said defendant had
her sit “on his lap” in “a lazy chair” in his room with both of their pants off. Defendant placed his
hands on her waist and put his penis inside “her butt.” This, according to B.G., happened in
defendant’s room “about five times.”
¶ 26 B.G. testified that this also occurred in defendant’s mother’s room “on the chair.” She
stated that defendant put his penis inside “her butt” in that room more than five times. Her parents
would be in the dining or living room with defendant’s parents when these incidents occurred. On
one occasion, while spying on her brother, M.G., and defendant in defendant’s room, she testified
that she “saw [defendant] putting his penis *** in my brother’s butt.”
¶ 27 She recalled the evening of August 11, 2015, when she and her family were watching a
movie at home. While watching the movie, B.G. saw “two horses fighting” and told her parents
that “it kind of looked like what happened to us.” She then told her parents about what had
happened with defendant and the family went to his home.
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2022 IL App (2d) 190831-U¶ 28 On cross-examination, B.G. admitted that she could not say how many times defendant
inappropriately touched her in defendant’s mother’s room. She was asked by defense counsel
about where she was when she observed defendant put his penis in M.G.’s butt, to which she stated
that she was “right at the door.” She could not recall telling Investigator Tunney that she was under
the bed and saw M.G.’s feet go up and down when witnessing the event.
¶ 29 On redirect examination, B.G. said that she could not remember exactly how many times
defendant touched her inappropriately because of “bad memory” and agreed that she was not
counting every time that it happened. On recross examination, B.G. testified that defendant never
told her not to tell her parents about any of the alleged incidents.
¶ 30 The State next called Sherry Krueger, nurse practitioner and medical provider with the
Medical Evaluation Response Initiative Team at the University of Illinois College of Medicine
Clinic. After being qualified by the trial court as an expert in the field of child sexual abuse,
Krueger testified that she met with M.G, B.G., and their mother on August 19, 2015. She learned
that B.G. had been treated and was currently taking medication for chronic constipation. Krueger
learned of B.G.’s history of urinary tract infections, encopresis, and behavioral concerns. She also
learned of M.G.’s history of constipation and signs of depression.
¶ 31 B.G. spoke with Krueger in private and told her that defendant had put his penis in her butt.
She also spoke privately with M.G. who said that defendant has put his penis into his rectum. She
conducted medical examinations of both children. Krueger’s examinations revealed nonspecific
findings of anal laxity, consistent with both sexually abused children and those with a history of
constipation.
¶ 32 The victims’ father, Marco G., was next called to testify. Defendant is Marco’s nephew,
the son of his sister, Martha. Marco recalled the events of August 11, 2015, and said B.G. made a
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2022 IL App (2d) 190831-Ucomment during the movie the family was watching. Her comment prompted Marco and his wife
to record the subsequent conversation. The recorded conversation, People’s Exhibit 1, was then
played in open court. Marco testified that the recording was accurate and confirmed that the
recording contained B.G. saying that the defendant had “touched her private” and “puts it in the
butt.” He also confirmed that the recording contained M.G. saying “I don’t remember” when asked
by Marco what had happened with defendant. M.G. responded “I don’t know” when asked by his
father “How many times he did it?” Marco and his family then went to defendant’s home.
¶ 33 When the family arrived at defendant’s home, only defendant’s parents, Martha and her
husband, Isidro, were there. He told them what he learned from B.G. and M.G. Shortly after,
defendant arrived at the house and Marco asked him “why he did that to my children.” Defendant
initially denied knowing to what Marco was referring, but eventually said “that he did it because
*** they did it to him, too, as well.” Marco testified that he became enraged and started yelling at
defendant. He then threw a chair away from the kitchen table at which he and defendant were
seated and pushed the table toward defendant.
¶ 34 The State called Officer Joseph Meeks to testify. Meeks was called to defendant’s home
on the evening of August 11, 2015. He met with defendant and his parents in the kitchen with
another officer present. Meeks asked defendant to explain what had happened that night.
Defendant responded that he had come home from work when confronted by his aunt and uncle
about assaulting B.G. and M.G. Meeks testified that defendant said that the accusations were true.
Meeks went on to testify that defendant told him “that it had begun when he himself was 12 years
old *** and that it initially began with just touching. He began with [M.G.], the young one.” Meeks
further stated that defendant told him “that he touched [M.G.’s] penis and then he had [M.G.] touch
his penis and then he stated that he wanted to experiment was his word, and that [defendant] placed
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2022 IL App (2d) 190831-Uhis *** penis between the butt cheeks of [M.G.]” Defendant told Meeks that he was not sure if had
penetrated M.G.
¶ 35 Regarding B.G., Meeks testified that defendant said, “he had committed similar acts with
[B.G.], inappropriate touching and had also placed his penis between her butt cheeks.” Meeks said
defendant told him that he’d stopped touching the children approximately a year prior to August
11, 2015. Defendant told Meeks that “being angry, confused” and “sexually abused when he was
younger” caused him to assault B.G. and M.G. Meeks advised defendant’s parents to watch over
defendant and told them that the case would be referred to the investigations division. Meeks then
left defendant’s home.
¶ 36 On cross-examination, Meeks admitted that his report of the interaction with defendant on
August 11, 2015, reflected that defendant said he “may” have penetrated M.G.’s butt cheeks. He
further admitted that defendant never gave explicit details regarding acts with B.G., only that he
had done “similar things” with her that he did with M.G.
¶ 37 The State next called Investigator Chris Tunney. Tunney interviewed the children at the
Kane County Child Advocacy Center on August 17, 2015. Video recordings of those interviews
were admitted by the trial court pursuant to section 115-10 of the Code of Criminal Procedure (725
ILCS 5/115-10 (West 2016)), over defendant’s standing objection to their reliability. Tunney
testified to the accuracy of the recordings, and they were played in open court.
¶ 38 In the recorded interview, M.G. said that he could not remember what grade he was in
when the sexual acts with defendant first occurred. He said that his family would go visit
defendant’s family about once a week or on the weekends, but defendant did not touch him on
every visit. He was not sure how many times it happened. He was not sure whether it happened
more than five times. He could only remember defendant touching him the first time, the last time,
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2022 IL App (2d) 190831-Uand one other time it happened. The first time was in defendant’s mother’s bedroom at the blue
house while M.G.’s and defendant’s parents were in the kitchen. The other two times M.G. could
remember what occurred with B.G. present while watching TV in defendant’s mother’s room, the
last time “in the house that [defendant] lives in now.” M.G. later stated that the one other time it
happened was in defendant’s room. M.G. told Tunney that the last time it happened was
approximately three weeks prior to the interview.
¶ 39 In the recorded interview with B.G., she said she could not remember the first time any
acts occurred with defendant. She told Tunney that her mom had told her, but she could not
remember. B.G. said that it happened every time her family went to defendant’s home, but
sometimes it didn’t. She said defendant would hurt her family if she ever told anyone about it.
¶ 40 B.G. recalled that sometimes the incidents would occur in defendant’s room, and other
times in his mother’s room. When describing a time it happened in defendant’s mother’s room,
B.G. told Tunney that defendant put his “pee pee” in her butt. B.G. said that when defendant did
that, it always happened in defendant’s mother’s room. She said defendant would do it to her
before M.G., but M.G. sometimes escaped and tricked her into staying in the room with defendant.
She recalled a time that, while hiding under the bed, she saw M.G.’s feet go up and down like he
was jumping while on the bed with defendant.
¶ 41 Following Tunney’s testimony, the State rested. The trial court denied defense counsel’s
motion for a directed finding. The matter was continued to July 27, 2018. At the commencement
of the July 27 trial date, the State requested leave to amend the indictment to reflect August 18,
2013, to May 9, 2015, as the date range of each of the ten charged counts of aggravated criminal
sexual assault. The State prosecutor told the trial court that defense counsel agreed to withdraw an
August 2016, motion to dismiss in exchange for the State’s agreement to amend the date in the
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2022 IL App (2d) 190831-Uindictment. The trial court granted the leave to the State to amend the indictment with no objection
from defense counsel.
¶ 42 Defendant first called Tammy Spooner, a medical records custodian for VNA Health Care
in Aurora. Spooner testified that a July 11, 2015, office visit report noted that B.G. denied “ever
being inappropriately touched or made to do something she did not want to do.” The report
indicated that her mother stated the B.G. denied any inappropriate contact as well.
¶ 43 Rhiannon G., M.G. and B.G.’s mother, was next called to testify. She recorded a
conversation she had with M.G. on September 18, 2015, in which he told her the incidents with
defendant occurred at “the other house, not the one that they live in now.” Rhiannon identified
Defendant’s Exhibit A as defendant’s “old house” and believed that was the house to which her
son was referring. She confirmed that her family would visit defendant’s family every weekend at
both the old and new house. Rhiannon never suspected defendant had done anything with the
children.
¶ 44 Defendant’s father, Isidro Gonzalez testified next for the defense. He identified
Defendant’s Exhibit A as a house he owned in De Kalb. He said that M.G. and B.G.’s family did
not visit that house frequently due to Marco G.’s then-work schedule. Defendant’s Exhibit E is a
warranty deed reflecting Isidro Gonzalez’s July 13, 2012, sale of the De Kalb house depicted in
Defendant’s Exhibit A. He identified Defendant’s Exhibit B as defendant’s current residence, a
yellow mobile home in Sycamore his family moved to after selling the De Kalb house. He testified
that M.G. and B.G. had only visited their current residence two or three times per year.
¶ 45 The trial court issued its findings and verdict on September 27, 2018. The trial court said
“The Court has taken into consideration all of the evidence *** heard. The Court
finds all the witnesses to be credible, the minors specifically. Although, as I indicated, there
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2022 IL App (2d) 190831-Umay have been some inconsistencies as to place and time, the Court is taking into
consideration the ages of the children and difficulty in testifying regarding these matters.
***.
The Court finds that the State has proven all elements of this offense beyond a
reasonable doubt and there will be verdicts of guilty as to each count.”
We will examine the trial court’s specific findings as to defendant’s guilt in greater detail in our
analysis below.
¶ 46 Post-Trial Proceedings
¶ 47 On January 4, 2019, defendant’s new counsel, Robert Nolan, filed a post-trial motion
containing sections titled “defendant’s motion in arrest of judgment” and “motion for a new trial.”
In his motion in arrest of judgment, defendant argued that “the State’s indictment in this case was
so lacking in specificity and detail, that it deprived the defendant of the ability to present his
defense, and thus violated his right to due process.” Relevant here, his motion for a new trial argued
that (1) he was not proven guilty beyond a reasonable doubt; and (2) his due process rights and
right to a fair trial were violated due to his trial counsel’s failure to file a motion to suppress
statements made to Officer Meeks.
¶ 48 On March 21, 2019, the trial court held an evidentiary hearing on defendant’s post-trial
motion. Defendant’s trial counsel, Marissa Hanson, testified that she did not file a motion to
suppress defendant’s confession. When asked why she failed to do so, she responded “Because of
the fact that we didn’t know if we were going to have a bench or jury trial, if this was, in fact,
going to be the judge hearing the case, we didn’t want her to hear that evidence.” She agreed when
Nolan suggested “Better [the judge] hears that evidence at trial; is that right?”
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2022 IL App (2d) 190831-U¶ 49 The trial court denied defendant’s motion in arrest of judgment and motion for a new trial.
On August 22, 2019, the trial court sentenced defendant to 35 years’ imprisonment on 10
consecutive three-and-a-half year sentences, and three years to life mandatory supervised release. 2
¶ 50 Defendant filed this timely appeal.
¶ 51 II. ANALYSIS
¶ 52 In this appeal, defendant raises four contentions. First, he contends that the trial court erred
when it granted the State’s motion for discretionary transfer from juvenile to criminal court
pursuant to section 5-805(3) of the Juvenile Court Act. 705 ILCS 405/5-805(3) (West 2016).
Second, he contends that he received ineffective assistance of trial counsel. Third, he contends that
the trial court erred when it found that he had been proven guilty on all counts beyond a reasonable
doubt. Fourth, he contends that the trial court erred in denying his post-trial motion in arrest of
judgment pursuant to section 116-2 of the Code of Criminal Procedure. 725 ILCS 5/116-2 (West
2018). We begin with defendant’s first contention.
¶ 53 Defendant raises several issues with the trial court’s reasoning in granting the State’s
motion to transfer from juvenile to criminal court. Defendant argues that the trial court (1) failed
2
Defendant’s convictions were for Class X felonies; six years representing the minimum
term allowed by statute. See 730 ILCS 5/5-4.5-25(a) (West 2018). We recognize that the sentence
imposed here is unique and inconsistent with the statute’s strictures. However, this matter is not
before this court and we need not address it. “[Courts] do not, or should not, sally forth each day
looking for wrongs to right. We wait for cases to come to us, and when they do we normally decide
only questions presented by the parties. Counsel almost always know a great deal more about their
cases than we do * * *. [Citation.]” Greenlaw v. United States, 554 U.S. 237, 244 (2008).
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2022 IL App (2d) 190831-Uto give weight to the holding in Miller v. Alabama, 567 U.S. 460 (2012); (2) was not presented
with adequate evidence to determine whether defendant could receive sex offender specific
treatment while still under juvenile court jurisdiction; and (3) noted that defendant’s alleged
offenses were committed in an aggressive manner when no such evidence was presented.
¶ 54 In Illinois, a minor over age 13 may be prosecuted as an adult under the criminal laws of
the State if a juvenile court determines, in its discretion, that there is probable cause to believe the
allegations in a transfer motion are true and it is not in the best interests of the public to proceed
under the Act. 705 ILCS 405/5–805(3)(a) (West 2016). In determining whether to transfer a
juvenile, the court must consider, among other things,
“(i) the age of the minor;
(ii) the history of the minor, including:
(A) any previous delinquent or criminal history of the minor,
(B) any previous abuse or neglect history of the minor, and
(C) any mental health, physical, or educational history of the minor or combination of
these factors;
(iii) the circumstances of the offense, including:
(A) the seriousness of the offense,
(B) whether the minor is charged through accountability,
(C) whether there is evidence the offense was committed in an aggressive and
premeditated manner,
(D) whether there is evidence the offense caused serious bodily harm,
(E) whether there is evidence the minor possessed a deadly weapon;
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2022 IL App (2d) 190831-U(iv) the advantages of treatment within the juvenile justice system including whether
there are facilities or programs, or both, particularly available in the juvenile system;
(v) whether the security of the public requires sentencing under Chapter V of the Unified
Code of Corrections:
(A) the minor's history of services, including the minor’s willingness to participate
meaningfully in available services;
(B) whether there is a reasonable likelihood that the minor can be rehabilitated before the
expiration of the juvenile court’s jurisdiction;
(C) the adequacy of the punishment or services.” 705 ILCS 405/5–805(3)(b) (West
2016).
¶ 55 The purpose of a transfer proceeding is to balance the best interests of the juvenile offender,
particularly as his interests relate to his potential for rehabilitation, against the public’s interest in
being protected from crime. People v. Morgan, 197 Ill. 2d 404 (2001). The history of the transfer
statute makes clear that a juvenile judge in a transfer proceeding must weigh relevant statutory and
nonstatutory factors in striking the balance for society by transferring the alleged juvenile offender
or in striking the balance for the minor by retaining jurisdiction. People v. Clark, 119 Ill. 2d 1, 12
(1987).
¶ 56 To that extent, a juvenile judge must receive and consider evidence as to each statutory
factor. Clark, 119 Ill. 2d at 18. A juvenile judge must evaluate (1) information concerning the type
of facilities available for the treatment or rehabilitation of the minor; and (2) must evaluate the
likely effectiveness of those facilities in light of the history and present circumstances of the minor.
Morgan, 197 Ill. 2d at 428–29. A juvenile judge should also consider critical nonstatutory elements
such as the resulting sentence if the minor is convicted under the Criminal Code. Clark, 119 Ill.
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2022 IL App (2d) 190831-U2d at 14. A harsh penalty that is mandated upon conviction is a factor to be weighed in determining
whether the best interest of the minor and the security of the public may require that the minor
continue in custody or under supervision for a period extending beyond his minority. Id. at 15.
Adequate balancing under the statute requires consideration of which penalty would best serve
both interests at stake. Id.¶ 57 The decision to permit prosecution of a juvenile under the criminal law is a matter of
judicial discretion, although that discretion is limited and controlled by the Juvenile Court Act.
See 705 ILCS 405/1–1 et seq. (West 2014). To affirm an order transferring a minor to criminal
court, this court must determine if there was sufficient evidence in the record as to each statutory
factor to support the transfer order. Morgan, 197 Ill. 2d at 428. The mere recitation in the record
that all statutory factors have been considered is not enough to affirm a discretionary transfer order.
Clark, 119 Ill. 2d at 18.
¶ 58 At the hearing on the State’s motion to transfer defendant from juvenile to criminal court,
the record indicates the State presented the trial court with police reports regarding defendant’s
offenses, as well as DVD recordings of the children’s interviews with Investigator Tunney.
Defendant provided the trial court with his school records, reports of his mental health treatment,
the legislative history of section 5-805 of the Juvenile Court Act, and relevant case law that
included Miller v. Alabama.
¶ 59 As defendant was facing the possible imposition of ten consecutive sentences, each with a
range of 6 to 30 years, the juvenile court should take into account the reasoning of Miller
concerning punishment of juveniles when ruling on a motion to transfer to the criminal court
pursuant to section 405/5-805 of the Juvenile Court Act. See People v. Patterson, 2016 IL App
(1st) 101573-B, ¶ 21. In Miller, the Supreme Court reasoned:
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2022 IL App (2d) 190831-U“[G]iven all we have said * * * about children's diminished culpability and
heightened capacity for change, we think appropriate occasions for sentencing juveniles to
the harshest possible penalty will be uncommon. That is especially so because of the great
difficulty *** of distinguishing at this early age between ‘the juvenile offender whose
crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose
crime reflects irreparable corruption.’ *** [W]e require [sentencing courts] to take into
account how children are different, and how those differences counsel against irrevocably
sentencing them to a lifetime in prison.” Miller, 567 U.S. at 479-80.
¶ 60 The hearing on the State’s motion to transfer defendant to criminal court was not a
sentencing court as contemplated in Miller. As articulated in Patterson, juvenile courts should take
the reasoning in Miller into account when ruling on such motions. Before making its ultimate
findings, the trial court stated that
“In ruling, the Court has considered the record by judicial notice, the testimony of
the witnesses, exhibits admitted into evidence, case law submitted to the Court by the
parties and statutory authority.”
Based on the trial court’s statement, we must assume it considered Miller as defendant submitted
that case law at the hearing. We cannot agree with defendant that the trial court failed to give
weight to the holding in Miller in making its ultimate determination on defendant’s transfer.
However, where, as here, a juvenile is facing two extremes, incarceration to age 21 under the
Juvenile Court Act, or 60 to 300 years’ imprisonment under the Criminal Code, adequate balancing
calls for consideration of which penalty would best serve both of the interests at stake. Clark, 119
Ill. 2d at 15.
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2022 IL App (2d) 190831-U¶ 61 In People v. Clark, the State alleged at defendant’s transfer hearing that he had murdered
two people and committed aggravated criminal sexual assault. Clark, 119 Ill. 2d at 15. The
defendant was 14 years old and facing either incarnation to age 21 under the Juvenile Court Act3,
or incarceration for life without possibility of parole under the Criminal Code. Id. at 15. The court
determined that neither of the two potential sentencing outcomes were considered by the juvenile
court, and the record was devoid of any indication that the attorneys or juvenile judge were aware
that the defendant would be imprisoned for his natural life if tried and convicted under the Criminal
Code. Id. As such, the juvenile judge was unable to consider whether or not lifetime imprisonment
of the defendant was in his best interests or was required for the security of society. Id. at 16. The
court held “that no informed judgment can be made about the disposition which will best serve the
alleged juvenile offender and society where, as here, there is not the slightest consideration of how
either society or the defendant would benefit by his incarceration until death.” Id.¶ 62 Here, defense counsel asked the trial court “to consider *** that while these circumstances
are extremely serious, if *** this is transferred to an adult court, he stands *** to be convicted and
to receive a sentence of between 60 and 300 years.” The trial court noted, in its ruling, that all of
defendant’s alleged offenses were “charged as Class X felonies.” The trial court went on to note
that “they are all very serious charges.” The trial court then considered the statutory factors under
sections 5-805(3)(b)(v)(A), (B), and (C) of the Juvenile Court Act, regarding whether the security
of the public requires sentencing under the Criminal Code. See supra ¶ 12. Therefore, even though
the trial court did not explicitly articulate its consideration of Miller, the record shows that the
3
The defendant’s transfer hearing was conducted under an earlier version of the Juvenile
Court Act (Ill.Rev.Stat.1983, ch. 37, par. 701–1 et seq).
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2022 IL App (2d) 190831-Ucourt was presented with the case law by defendant, acknowledged its consideration, and made
proper findings on the potential sentencing outcomes as required by our supreme court in Clark.
¶ 63 Defendant’s claim that the trial court noted defendant’s alleged offenses were committed
in an aggressive manner when no such evidence was presented is not supported by the record
before us. As stated above, the State presented the trial court with police reports related to the
offenses, and DVD recordings of M.G. and B.G.’s interviews. The evidence presented supported
the trial court’s finding that “defendant threatened harm to the victims if they told anyone of these
alleged acts.” Defendant cites to no authority for his position except to say that the court “had
before it no such evidence” of aggression. The record here shows that the trial court was presented
with adequate evidence to support its finding that “the offense was committed in an aggressive and
premeditated manner” as required by statute. 705 ILCS 405/5-805(3)(iii)(C) (West 2014).
¶ 64 Next, defendant argues that the trial court, in granting the State’s transfer motion, did not
consider the possibility that there existed a reasonable likelihood that he could be rehabilitated
while still under the jurisdiction of the juvenile court. Defendant avers that the trial court was not
presented with substantive evidence concerning his psychiatric care, individual counseling, or
level or risk following a sex offender evaluation to determine whether his presence in the
community posed a risk to the safety of the public.
¶ 65 Returning to Clark, “previous history of the minor” and “whether there are facilities
particularly available to the Juvenile Court for the treatment and rehabilitation of the minor” are
interrelated factors. Clark, 119 Ill. 2d at 16. Juvenile judges evaluate the likely effectiveness of
available facilities for treatment or rehabilitation based on the personal and social history of the
defendant. Id. at 17. A proper evaluation of defendant’s history includes
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2022 IL App (2d) 190831-U“[R]eceipt and review of information about such factors as social adjustment,
mental and physical health, school adjustment, adjustment in the family and familial
support for any possible treatment or rehabilitation in addition to any previous involvement
with the juvenile justice system.” Id.Our supreme court noted that the juvenile judge shall “receive and evaluate information about the
type of facilities available for the treatment or rehabilitation” of defendant. Id. If the juvenile judge
is not presented with information on these factors, the court is authorized “to cause an investigation
to be made into these factors.” Id.¶ 66 Here, defendant points to Michael Venditti’s testimony that part of the probation
department’s pre-adjudication practice in cases involving the aggravated criminal sexual abuse
would be to require a sex offender evaluation to be completed. The evaluation would indicate a
high or low risk. Venditti testified that if a person of defendant’s age received a low score on the
evaluation, the person could complete rehabilitation treatment “well in advance” of the juvenile
court’s loss of jurisdiction. Defendant never completed a sex offender evaluation. He was one
month shy of his 19th birthday at the time of the hearing.
¶ 67 In determining whether there was a reasonable likelihood defendant could be rehabilitated
before the expiration of juvenile court jurisdiction, the trial court found “there simply is no
information to suggest that he can be rehabilitated within two years’ time.” Although Venditti’s
testimony suggests a person with a low score on the evaluation could complete treatment in less
than 2 years, the trial court’s finding on this issue is supported by the other evidence presented.
¶ 68 The trial court was presented with Dr. Braden’s reports and testimony. Braden’s report is
detailed in full above (supra ¶ 6). It was Braden’s opinion that defendant’s mental health was in a
fragile state and she expressed concern that his mental health may deteriorate if confined before
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2022 IL App (2d) 190831-Utrial. She recommended defendant be subject to intensive outpatient treatment and partial
hospitalization for mental health treatment. She testified that defendant’s IQ put him in the low
average range. Indeed, the trial court considered this evidence in finding
“[D]efendant *** alleges he was sexually abused as a child. *** He is reported to
be of low average intelligence. He has been diagnosed with depression and bipolar
disorder. He has been prescribed medications for these diagnoses. He has alleged that he
experiences hallucinations.”
¶ 69 Based on Venditti’s testimony concerning the absence of defendant’s sex offender
evaluation, the trial court would have been authorized to cause an investigation to be made into
these factors. See Clark, 119 Ill. 2d at 17. However, the record shows evidence was considered by
the trial court supporting its finding that defendant could not be rehabilitated before the expiration
of the juvenile court’s jurisdiction, to ameliorate any risk to public security. Its finding on
defendant’s likelihood of rehabilitation was based on the evidence presented and not an abuse of
discretion.
¶ 70 We now move on to defendant’s contention that his trial counsel was ineffective for failing
to file and pursue a ruling on a motion to suppress confessional statements made to Officer Meeks
on August 11, 2015. He argues that, based on the totality of the circumstances, his statements to
Meeks were involuntary and, therefore, a motion for suppression of those statements had a
reasonable probability of success, affecting the outcome of the trial.
¶ 71 A successful claim of ineffective assistance of counsel requires a showing of both deficient
representation and prejudice. Strickland v. Washington, 466 U.S. 668, 690 (1984). In asserting a
claim of ineffectiveness, the defendant must overcome a strong presumption that his or her
counsel’s inaction resulted from sound trial strategy and not incompetence. People v. Wiley, 205
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2022 IL App (2d) 190831-UIll. 2d 212, 230 (2001). Generally, the decision of whether to file a motion to suppress is a matter
of trial strategy and “therefore one in which the court will not indulge a hindsight analysis to
determine whether the attorney's decision was reasonably adequate under the circumstances.”
People v. Bryant, 128 Ill. 2d 448, 458 (1989). Hence, to prevail a defendant must show that a
reasonable probability existed that the motion would have been granted and the outcome of the
trial would have been different had the evidence been suppressed. People v. Morris, 229 Ill. App.
144, 157 (1992). We decide this issue de novo. People v. Chapman, 194 Ill. 2d 186, 217 (2000).
¶ 72 In the present case, the record shows that trial counsel’s failure to file a motion to suppress
defendant’s confession to Meeks was not part of a sound trial strategy. Notwithstanding an analysis
of the totality of the circumstances regarding defendant’s confession, trial counsel’s own testimony
at the hearing on defendant’s post-trial motions belies any serious consideration that her omission
in filing a suppression motion was reasonably adequate. See supra ¶ 48; see also People v. Kerwin,
159 Ill. 2d 436 (1994) (an attorney rendering effective assistance to a client would know that a
judge is presumed to only consider admissible evidence in a trial). As such, we will analyze
whether defendant’s confessional statement to Officer Meeks was voluntary under the
circumstances and determine if a reasonable probability existed that the motion to suppress that
statement would have been granted.
¶ 73 Defendant’s argument on the voluntariness of the statement does not frame his interaction
with Officer Meeks as a custodial interrogation. His argument is based on the totality of the
circumstances surrounding his interaction with police. On August 11, 2015, defendant was 17
years old. He suffered auditory and visual hallucinations, felt hopeless and suicidal. He had been
prescribed medications to treat mental health afflictions earlier in his life. Shortly before Meeks
arrived at defendant’s home, he had been angrily confronted by his uncle, Marco G., who had
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2022 IL App (2d) 190831-Utossed a chair across the room and pushed a table toward him. Defendant argues that he “had been
traumatized by his uncle and was emotionally drained and mentally unstable at the time he was
being interrogated by law enforcement, raising the question of the voluntariness of the statement.”
¶ 74 To determine the voluntariness of a confession, including one from a juvenile, the court
looks to the totality of the circumstances. People v. Gilliam, 172 Ill. 2d 484, 500 (1996). Factors
to consider include individual aspects of the accused (age, intelligence, background, experience,
mental capacity, education, physical condition, and experience with the criminal justice system),
and the nature of the interrogation (the legality and duration of the detention, the duration of the
questioning, and any physical and mental abuse by police). Gilliam, 172 Ill. 2d at 500–01. No one
factor is dispositive. Gilliam, 172 Ill. 2d at 500. “The benchmark of voluntariness is not whether
the defendant would have confessed in the absence of interrogation but, rather, whether the
defendant’s will was overborne at the time of the confession.” People v. Brown, 169 Ill. 2d 132,
144 (1996).
¶ 75 The taking of a juvenile’s confession is a “sensitive concern.” In re G.O., 191 Ill. 2d 37,
54 (2000). The “greatest care” must be taken to assure that the confession was not coerced or
suggested and that “it was not the product of ignorance of rights or of adolescent fantasy, fright or
despair.” In re G.O., 191 Ill. 2d at 54. This court also recognizes a “concerned adult” factor in
considering whether the juvenile, either before or during interrogation, had an opportunity to
consult with an adult interested in his welfare. People v. Cunningham, 332 Ill. App. 3d 233, 243
(2002).
¶ 76 “Interrogation” refers to express questioning as well as “any words or actions on the part
of the police, other than those normally accompanying arrest and custody, that the police should
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2022 IL App (2d) 190831-Uknow are reasonably likely to elicit an incriminating response from a suspect.” People v. Jackson,
374 Ill. App. 3d 93, 106 (2007), quoting People v. Olivera, 164 Ill. 2d 382, 391-92 (1995).
¶ 77 As noted, defendant does not aver that his interaction with Meeks was conducted in a
custodial setting. Officer Meeks was investigating a report that defendant had sexually assaulted
M.G. and B.G. He met with defendant and his parents in the kitchen with another officer present.
Meeks asked defendant to explain what had happened that night. Defendant responded that he had
come home from work when confronted by his aunt and uncle about assaulting B.G. and M.G.
Meeks testified that defendant said the accusations were true before going in to some detail about
the details of touching his cousins. The evidence does support the notion that defendant may have
been intimidated by his uncle after having been confronted. However, Marco G. and his family
had since left defendant’s home and contacted police, leaving defendant with his parents. Officer
Meeks merely asked defendant to explain what had happened based on the received report of
sexual assault. Following defendant’s statements to Meeks, he was not arrested. Based on the
evidence presented, there is nothing to indicate defendant’s statements to have been coerced or the
product of his will overborne. The officer’s request that defendant explain what happened does not
evidence an action police knew would likely elicit an incriminating response. As defendant’s
statements to Meeks were the product of a non-custodial, non-interrogative interaction within the
confines of his own home with his parents present, the facts do not support the existence of a
reasonable probability that the trial court would have found defendant’s statement to be
involuntary. Although we acknowledge defendant’s trial counsel’s failure to file the motion to
suppress defendant’s statements was not a sound trial strategy, defendant has not demonstrated
that counsel’s assistance “fell below an objective standard of reasonableness and that, but for
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2022 IL App (2d) 190831-Ucounsel's unprofessional errors, there is a reasonable probability that the result of the proceeding
would have been different.” People v. Downs, 2017 IL App (2d) 121156-C, ¶ 39.
¶ 78 Defendant additionally contends his trial counsel was ineffective for failing to require the
State to demonstrate that the indictment set forth the dates of the alleged offenses as nearly as
could be done. In his opening brief presented to this court, defendant does not provide citation to
any authority to support this contention, except to point out the existence of section 111-3(a)(4) of
the Code of Criminal Procedure, and his trial counsel’s admission that the dates of the ten offenses
charged were “difficult to pinpoint when those *** offenses occurred.”
¶ 79 Defendant’s contention on this issue is insufficient per our supreme court rules. An
argument must “contain the contentions of the appellant and the reasons therefor, with citation of
the authorities and the pages of the record relied on.” Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020).
However, this forfeiture is not as punitive to defendant’s appeal as it may appear on its face because
the alleged vague nature of the indictment is argued properly in his next contention.
¶ 80 Defendant next contends that the trial court erred in denying his post-trial motion in arrest
of judgment pursuant to section 116-2 of the Code of Criminal Procedure. He argues that the time
span alleged in each offense of the indictment were not stated as definitely as possible and in
violation of the strictures of section 111-3(a)(4) of the Code of Criminal Procedure.
¶ 81 An indictment that has been challenged for the first time through a posttrial motion in arrest
of judgment is subject to the prejudice standard of review. People v. Benitez, 169 Ill. 2d 245, 256
(1996). The indictment must sufficiently inform the defendant of the charges against him and be
precise enough so that he may not be charged with the same crime again in the future. People v.
Herman, 347 Ill. App. 525, 532 (2004). If the charging instrument fails to set forth the elements
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2022 IL App (2d) 190831-Uof the offense, then a motion in arrest of judgment, once made, must be granted. Herman, 347 Ill.
App. 3d at 532.
¶ 82 “A charge shall be in writing and allege the commission of an offense by *** [s]tating the
date and county of the offense as definitely as can be done.” 725 ILCS 5/111-3(a)(2) (West 2018).
“A motion in arrest of judgment attacking the indictment, information, or complaint on the ground
that it does not charge an offense shall be denied if the indictment, information or complaint
apprised the accused of the precise offense charged with sufficient specificity to prepare his
defense and allow pleading a resulting conviction as a bar to future prosecution out of the same
conduct.” 725 ILCS 5/116-2(c) (West 2018).
¶ 83 All ten counts in the indictment allege the charged offenses occurred “between August 18,
2013, and June 9, 2015.” Counts I-V allege offenses committed against M.G., while counts VI-X
allege offenses committed against B.G. With respect to section 111-3(a)(4) of the Code of Criminal
Procedure, 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, 292 (2005). In Guerrero the court noted that, “[t]he date of the
offense is not an essential factor in child sex offense cases.” Id. The court 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.¶ 84 Here, we find that the indictment apprised defendant of the precise offenses charged with
enough specificity to allow preparation of his defense. The indictment included all the essential
elements required by section 111-3(a) of the Code of Criminal Procedure and provided defendant
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2022 IL App (2d) 190831-Uwith 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. To reiterate, 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. Therefore, we cannot find error with the
trial court’s denial of defendant’s post-trial motion in arrest of judgment.
¶ 85 Finally, defendant contends that the trial court erred in its judgment that the State proved
defendant guilty on all counts charged beyond a reasonable doubt.
¶ 86 The State has the burden of proving beyond a reasonable doubt each element of an offense.
Jackson v. Virginia, 443 U.S. 307, 315-16 (1979); People v. Gray, 2017 IL 120958, ¶ 35. When a
defendant challenges the sufficiency of the evidence, a court of review must determine “whether,
[after] viewing the evidence in the light most favorable to the State, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” (Internal quotation
marks omitted.) Gray, 2017 IL 120958, ¶ 35. It is not the role of the reviewing court to retry the
defendant. In re Q.P., 2015 IL 118569, ¶ 24. Rather, it is the responsibility of the trier of fact to
resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from the
facts. People v. Bradford, 2016 IL 118674, ¶ 12. Therefore, a court of review will not substitute
its judgment for that of the trier of fact on questions involving the weight of the evidence or the
credibility of the witnesses. Bradford, 2016 IL 118674, ¶ 12. A criminal conviction will not be
reversed for insufficient evidence unless the evidence is so unreasonable, improbable, or
unsatisfactory that it justifies a reasonable doubt of the defendant's guilt. Gray, 2017 IL 120958, ¶
35.
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2022 IL App (2d) 190831-U¶ 87 We begin our analysis of defendant’s final contention with his argument that the State
failed to provide sufficient evidence of the use or threat of the use of force by defendant as to
counts I-V regarding his actions with M.G. Section 11-1.30(b)(ii) of the Criminal Code provides
that “[a] person commits aggravated criminal sexual assault if that person is under 17 years of age
and *** commits an act of sexual penetration with a victim who is at least 9 years of age but under
13 years of age and the person uses force or threat of force to commit the act.” 720 ILCS 5/11-
1.30(b)(ii) (West 2018).
¶ 88 In Illinois, “force or threat of force” means “the use of force or violence, or the threat of
force or violence, including but not limited to the following situations: (1) when the accused
threatens to use force or violence on the victim or on any other person, and the victim under the
circumstances reasonably believed that the accused had the ability to execute that threat; or (2)
when the accused has overcome the victim by the use of superior strength or size, physical restraint
or physical confinement.” 720 ILCS 5/11-0.1 (West 2018). The use of force or the threatened use
of force is an essential element of aggravated criminal sexual assault. People v. Pearson, 252 Ill.
App. 3d 1, 12 (1993). The element of force refers to actions of the defendant that physically compel
the victim to submit to the act of sexual penetration. People v. Mpulamasaka, 2016 IL App (2d)
130703, ¶ 74. Force requires something more than the force inherent in the sexual penetration
itself. Id. Force can be established by evidence that the defendant used his bodily inertia to prevent
the victim from disengaging. Id.¶ 89 To prove defendant guilty of Counts I-V, the State was required to show that defendant
committed an act of sexual penetration by use of force or threat of force against M.G. five times
within the dates alleged in the amended indictment, or August 18, 2013, to May 9, 2015.
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2022 IL App (2d) 190831-U¶ 90 M.G. testified that on at least ten occasions in defendant’s “new house”, defendant “would
put his hand around [M.G.’s] waist and [defendant’s] penis would have been in [M.G.’s] anus.”
M.G. described the feeling of defendant’s hands on his waist “Like I wouldn’t be able to get out.”
He testified that he did try to get away from defendant but was unable to “Because I was very weak
and he always held on very tight.”
¶ 91 In its findings of defendant’s guilty, the trial court stated that M.G. credibly testified “that
the defendant would place his hands around [M.G.’s] waist and insert his penis into [M.G.’s] anus
and [M.G.] felt he was unable to get out of the defendant’s grasp because he was very weak and
the defendant was holding him very tight.”
¶ 92 Without making an ultimate finding as to the credibility of M.G.’s testimony regarding the
number of sexual acts with defendant in the “new house”, M.G.’s testimony was sufficient for a
finding that defendant used force in penetrating his anus. A rational trier of fact considering M.G.’s
trial testimony could have inferred that defendant used force to continue an act of sexual
penetration using his grip on M.G.’s waist, his superior size and strength, and his bodily inertia to
prevent M.G. from disengaging. See People v. Alexander, 2014 IL App (1st) 112207, ¶ 54 (a
complaining witness’s testimony that defendant used his body weight to continue an act of
penetration thereby preventing her escape was sufficient for a rational trier of fact to conclude that
force was used to complete the sexual assault). Thus, we cannot say that no rational trier of fact
could find that force was used to complete the sexual assault based on M.G.’s testimony.
¶ 93 We now move to defendant’s argument that after viewing the evidence in the light most
favorable to the State, the trial court could not have found defendant guilty beyond a reasonable
doubt. He argues that the testimony of M.G. and B.G. was vague, improbable, incomplete and
inconsistent, and insufficient to support of finding of guilt beyond a reasonable doubt. Further,
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2022 IL App (2d) 190831-Udefendant avers that the testimony of other trial witnesses raises a reasonable doubt of the veracity
of M.G. and B.G.’s testimony.
¶ 94 M.G. and B.G.’s statements to Officer Tunney on August 17, 2015, as well as those made
to Rhiannon G. in August 2015, were admitted into evidence pursuant to section 115-10(a)(2) of
the Code of Criminal Procedure. 725 ILCS 5/115-10(a)(2) (West 2016). Section 115-10 allows for
the admission of “testimony of an out of court statement made by a victim describing any
complaint of such act or matter or detail pertaining to any act which is an element of an offense
which is the subject of a prosecution for a sexual or physical act against that victim.” 725 ILCS
5/115-10(a)(2) (West 2016). “Section 115-10 was originally passed in response to the difficulty in
convicting persons accused of sexually assaulting young children.” People v. Holloway, 177 Ill.
2d 1, 9 (1997). “This difficulty occurs because children’s testimony in sexual assault cases is often
inadequate.” Holloway, 177 Ill. 2d at 9. Our supreme court has recognized the probative value of
section 115-10 statements because a videotaping a child victim’s account of abuse closer in time
to the abuse “preserves the account while it is still fresh in the child’s memory; in addition, it
allows for the examination of the conditions prevalent at the time of the child’s initial complaint.”
People v. Bowen, 183 Ill. 2d 103, 115-16 (1998).
¶ 95 The testimony given by the minors at trial was often inconsistent with their section 115-10
statements to Tunney and Rhiannon G. However, the trier of fact is free to accept or reject as much
or as little of a witness’s testimony as it pleases. People v. Corral, 2019 IL App (1st) 171501, ¶
85. “It is not the role of the reviewing court to substitute its judgment for that of the trier of fact
with respect to the weight of the evidence, conflict in the testimony or witness credibility.” Corral,
2019 IL App (1st) 171501, ¶ 71. If the trier of fact fails to adequately to resolve conflicts in the
testimony, a reasonable doubt of defendant’s guilt may exist.
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2022 IL App (2d) 190831-U¶ 96 Defendant’s Exhibit E, a warranty deed reflecting his father’s sale of the “old house” or
“blue house” on July 13, 2012, was properly admitted into evidence. Therefore, any misconduct
by defendant against the minors alleged to have occurred at that residence can not be used as the
basis for conviction as such acts would fall outside the dates alleged in the amended indictment
(August 18, 2013, to May 9, 2015). With the foregoing in mind, we will recount the trial court’s
specific findings as to each minor victim.
¶ 97 Regarding M.G., the trial court found as follows:
“[M.G.] credibly testified that the had a close relationship between the two families.
They saw each other often. Sometimes it would be weekly. He testified again that the
defendant was larger than him and that he participated in wrestling at school. He also
indicated through his testimony at trial that his penis would touch his anus, that he would
place it inside his anus, that it occurred more than ten times from preschool until the last
time when he was ten years old.
***
He further said that the defendant told him if he ever told his mother or father that
he would get in trouble and it meant his parents wouldn’t care for him anymore.
The sexual contact he testified occurred more than five times while he was in third
grade and most likely more than five times while he was in fourth grade when he was ten
years old. He indicated that the majority of the sexual assaults occurred in the second house
either in the defendant’s mom’s room *** and indicated on cross that it was more than ten
times. It also occurred in the defendant’s room as well.
***
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2022 IL App (2d) 190831-UIt is quite clear from the evidence that the Court watched that the father was very
upset, very angry. He banged the table at one point in time and asked [M.G] why did he let
the defendant do this to him. They recorded their statements and their statements, although
there may be some variances, were consistent with what was told to [Inspector Tunney] as
well as what they testified in court.
***
It is quite clear in the interview process that [M.G.] had such difficulty talking to
[Inspector Tunney] about what had occurred. He was nervous. He cried. He testified he
didn’t even want to go that day but the parents told him he had to be brave.”
Regarding B.G., the trial court found as follows:
“[B.G.] *** testified credibly that the defendant put his penis in her butt. She was
in second grade at the time, eight years old. She had indicated that it occurred most every
Sunday and again that they were close friends. It is noted for the record as well that the
minors’ father and the defendant’s mother are siblings.
She said it occurred in the mom’s room, that he held her waist and his penis was
inside her butt. It occurred about five times in his mom’s room. She also testified that she
saw the defendant place his penis in her brother’s butt. She also said it was an emotional
disclosure.
***
There was testimony as well that during this time of the alleged sexual assault that
[B.G.] had trouble and was soiling her pants and both minors suffered from constipation.
She also corroborated that it occurred both in the defendant’s room and his mother’s room
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2022 IL App (2d) 190831-Uat the houses. She also testified that her parents told her not what to say but to tell the truth
when she went to the [Inspector Tunney] interview.
She also testified [that] at one occasion when a nurse asked her back in July 2015
if anyone had ever touched her, she denied it. She said didn’t want to say anything at that
time. She also said she didn’t disclose to her parents earlier because her brother said if she
told, they would be the ones that would get in trouble and would go to jail.”
¶ 98 There certainly were inconsistencies between the minors’ section 115-10 statements to
Tunney and Rhiannon G., and trial testimony. M.G. made conflicting statements about where his
encounters with defendant took place. At trial, he testified that the incidents occurred in both
defendant’s “new house” and “old house.” The September 18, 2015, recording made between M.G.
and his mother was played in court and determined that he stated the incidents happened only in
the “old house” and he told Rhiannon G. that the encounters did not occur in the “new house.”
¶ 99 In his August 17, 2015, interview with Tunney, M.G. said that he only remembered
defendant touching him the first time, the last time, and one other time; the first time having
occurred at defendant’s “old house.” M.G. stated in the interview with Tunney that he and his
family would visit defendant’s family about one a week, but that the contact didn’t happen every
time they went there. He could not be sure whether the incidents happened more than five times
when questioned by Tunney. Additionally, he could not recall anything happening with defendant
or how many times when first questioned by his father, Marco G.
¶ 100 M.G.’s trial testimony was inconsistent as to how often the contact with defendant
occurred, ranging from approximately three times to “more than 20 times.” He stated that he knew
the incidents occurred many times because it usually happened every time, most of the time, or the
majority of the time his family visited defendant’s home. He testified that the last time defendant
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2022 IL App (2d) 190831-Utouched him he was ten years old and in fourth grade. During his fourth-grade year, M.G. said that
the contact occurred more than ten times, most frequently in defendant’s mom’s room in the new
house. He explained in his trial testimony that during his prior statements to his parents and Tunney
he had not remembered certain things and had not wanted to talk about the incidents because he
was scared that his parents “were just keeping quiet” and would be angry with him.
¶ 101 B.G.’s trial testimony also contained inconsistencies from her section 115-10 statements.
Her statements during the August 17, 2015, interview with Tunney is devoid of an actual number
of times the incidents with defendant occurred, except to say that it happened all the times she and
her family visited defendant’s house, “but sometimes not.” Sometimes, she stated in the interview,
the contact occurred in defendant’s mom’s room and sometimes in defendant’s room. She stated
to Tunney that it occurred when she was eight, sometimes seven, and six years old.
¶ 102 In her trial testimony, B.G. said that the contact occurred more than three times in
defendant’s mom’s room, or five times. She testified that it occurred in defendant’s room more
than three times, five times, or more than five times. The contact with defendant occurred while
she was in second grade when she was eight years old, almost every weekend when her family
visited defendant’s home. She could not remember it happening while she was in first grade.
¶ 103 “The mere existence of conflicting evidence at trial does not require a reviewing court to
reverse a conviction.” People v. Peoples, 2015 IL App (1st) 121717, ¶ 67, quoting People v.
Goodar, 243 Ill. App. 3d 353, 357 (1993). “It is sufficient if all of the evidence taken together
satisfies the trier of fact beyond a reasonable doubt of the defendant's guilt.” Peoples, 2015 IL App
(1st) at ¶ 67, quoting People v. McCarter, 2011 IL App (1st) 092864, ¶ 22. It is the responsibility
of the trial court as the trier of fact to determine each minor’s credibility, the weight to be given to
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2022 IL App (2d) 190831-Utheir testimony, and resolution of any inconsistencies and conflicts in the evidence. People v.
Starks, 2014 IL App (1st) 1221169, ¶ 51; People v. Sutherland, 223 Ill. 2d 187, 242 (2006).
¶ 104 The trial court found that M.G. and B.G. testified credibly. It recounted that M.G. testified
credibly that defendant’s penis had touched the inside of M.G.’s anus more than five times while
he was in third grade, and more than five times while he was 10 years old in fourth grade. Both
findings put the incidents within the time specified in the amended indictment. The trial court
acknowledged that M.G. had difficulty speaking with Tunney in the August 17, 2015, interview
about what had occurred with defendant due to being nervous. Both M.G.’s testimony regarding
his reluctance to speak for fear of his parents becoming upset, as well as his father’s anger upon
learning what defendant had done to the children support that finding.
¶ 105 The trial court also found that B.G. credibly testified that defendant put his penis in her
butt when she was eight years old, in second grade, most every Sunday that her family visited
defendant’s home. The trial court found her testimony that it occurred in five times in defendant’s
mom’s room credible.
¶ 106 Viewed in the light most favorable to the State, the trial court’s credibility determinations
were not unreasonable. The minors’ testimony coupled with testimony of Officer Meeks in which
he recalled defendant’s admission to the accusations of B.G. and M.G. on the evening of August
11, 2015. Defendant admitted to Meeks “that he touched [M.G.’s] penis and then he had [M.G.]
touch his penis and then he stated that he wanted to experiment was his word, and that [defendant]
placed his *** penis between the butt cheeks of [M.G.]” and said “he had committed similar acts
with [B.G.], inappropriate touching and had also placed his penis between her butt cheeks.” While
Meeks’s testimony was not wholly corroborative of the minors’ testimony as defendant told him
he “may” have penetrated M.G.’s butt cheeks and did “similar things” with B.G., it supports the
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2022 IL App (2d) 190831-Utrial court’s finding that defendant did commit acts of sexual penetration with both minors. The
testimony of a single witness, if deemed credible, is sufficient to support conviction. People v.
Vannote, 2012 IL App (4th) 100798, ¶ 48.
¶ 107 Based on the foregoing, the trial court’s finding that the evidence presented was sufficient
to find defendant guilty on counts I-V in violation of section 11-1.30(b)(ii) of the Criminal Code
and counts VI-X in violation of section 11-1.30(b)(i) of the Criminal Code were not so improbable
or unsatisfactory as to create a reasonable doubt of his guilt.
¶ 108 III. CONCLUSION
¶ 109 For the foregoing reasons, the judgment of the circuit court of DeKalb County is affirmed.
¶ 110 Affirmed.
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