People v. Burgess , 40 N.E.3d 284 ( 2015 )

2015 IL App (1st) 130657
No. 1-13-0657
Fifth Division
August 14, 2015
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
)
PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court
) of Cook County.
Plaintiff-Appellee, )
) No. 11 CR 14714
v. )
) The Honorable
HERBERT BURGESS, ) Ellen B. Mandeltort,
) Judge Presiding.
Defendant-Appellant. )
)
______________________________________________________________________________
JUSTICE GORDON delivered the judgment of the court, with opinion.
Presiding Justice Palmer and Justice Reyes concurred in the judgment and opinion.
OPINION
¶1 After a jury trial, defendant Herbert Burgess was found guilty of aggravated criminal
sexual assault, criminal sexual assault, and unlawful restraint. 720 ILCS 5/11-1.30(a)(4), 11-
1.20(a)(4), 10-3 (West 2010). After hearing arguments in mitigation and aggravation,
defendant was sentenced to 24 years with the Illinois Department of Corrections (IDOC) for
aggravated criminal sexual assault, 15 years for criminal sexual assault, and 3 years for
unlawful restraint. All sentences were to run concurrently.
No. 1-13-0657
¶2 On this direct appeal, defendant claims that: (1) he was denied the ability to present a
complete defense; (2) the trial court's prejudice denied him a fair trial; (3) prosecutorial
misconduct denied him a fair trial; (4) the trial court erred in allowing the State to rehabilitate
witnesses with prior consistent statements; (5) the trial court considered improper
aggravating factors during sentencing; (6) defendant's aggravated criminal sexual assault
conviction was the result of a double enhancement; and (7) the trial court erred in not
vacating the conviction for criminal sexual assault, as it resulted from the same act as the
conviction for aggravated criminal sexual assault.
¶3 For the following reasons, we find convincing only defendant's seventh claim, that
the aggravated criminal sexual assault and criminal sexual assault resulted from the same act,
and therefore vacate the conviction for criminal sexual assault. We affirm, and correct the
mittimus to reflect only convictions for aggravated criminal sexual assault and unlawful
restraint.
¶4 BACKGROUND
¶5 We provide a detailed version of the testimony in full below, but in sum, the State's
evidence established that on August 8, 2011, the victim, age 15, hereinafter referred to as
"the minor," was a male summer employee working for defendant's employer. Defendant
worked for this company as a human resources director. Defendant was driving the minor
home when they stopped at defendant's apartment. The minor tried to leave the apartment
and defendant slammed the door and locked it, preventing him from leaving. Defendant then
sexually assaulted the minor and ejaculated onto the minor's shirt. A few days later,
defendant allegedly sexually assaulted the minor again, this time at defendant's workplace,
which is located in Lake County. This alleged assault is the subject of a separate criminal
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No. 1-13-0657
case in Lake County. The minor told his parents about the sexual assaults and defendant was
ultimately arrested and charged. During trial, defendant maintained that the minor's father
had stolen a T-shirt, which defendant had previously masturbated into, and then coerced the
minor into bringing false claims in order to extort defendant and defendant's employer. The
minor's family had made a monetary demand to the company that defendant worked for in
response to the alleged assault that took place at the company, which was settled out of court.
¶6 Defendant cites over 100 interactions that he claims show prosecutorial misconduct,
comments from the trial court showing bias, and other judicial errors. It would be overly
burdensome to list all of these in full, but we provide examples of the general type of
interactions to which defendant objects in our analysis. 1 To preserve anonymity, we refer to
the individual, whom defendant allegedly sexually assaulted in this case, only as "the minor."
The minor's relatives are referred to by their familial connection to the minor, such as "the
father" or "the uncle." This is done because the initials of the family members could be used
to identify the victim, if viewed by someone familiar with the family.
¶7 I. Pretrial Motions
¶8 A. State's Motion to Use Proof of Other Crimes
¶9 On September 4, 2012, the State filed a motion to use proof of other crimes as
evidence pursuant to section 115-7.3 of the Code of Criminal Procedure of 1963 (725 ILCS
5/115-7.3 (West 2010)). At the hearing on September 20, 2012, the court heard the State's
motion. Through the motion, the State sought to introduce evidence that defendant had
previously inappropriately touched the minor, made sexually suggestive remarks to the
minor, sexually assaulted the minor (for which a Lake County criminal case was ongoing,)
1
We note that in our analysis, we have considered all the comments cited by defendant in
support of his claims on appeal, even if not expressly set forth here.
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No. 1-13-0657
and sexually assaulted another underaged individual, M.M. Defense counsel objected,
arguing that the incident alleged by M.M. was factually different from the case at bar.
Defense counsel also argued that the minor's father had conspired against defendant to frame
him for sexual assault, and, therefore, the previous alleged inappropriate remarks and touches
were inadmissible. Finally, defense counsel argued that introduction of this evidence would
be prejudicial against defendant.
¶ 10 The trial court granted the State's motion in part and denied it in part. The trial court
found that, for the evidence involving incidents involving the minor, the proximity in time
and degree of factual similarity satisfied section 115-7.3 of the Code of Criminal Procedure
(725 ILCS 5/115-7.3 (West 2010)). For this same evidence, the trial court also stated that it
had weighed the probative value of the evidence against any undue prejudice it may cause
defendant. Therefore, the trial court found that the State could introduce evidence from the
sexual assault that defendant was charged with committing against the same minor in Lake
County. However, using the same analysis, the trial court barred the State from introducing
evidence involving the alleged sexual assault by defendant against M.M.
¶ 11 B. State's Motion In Limine
¶ 12 On December 10, 2012, the State filed a motion in limine, seeking to bar defense
counsel from introducing during voir dire, trial, and in opening and closing statements, any
hearsay evidence that defense counsel might try to elicit through the testimony of the minor's
uncle. In the motion, the State claimed that the uncle would allegedly present testimony that:
(1) the minor received a T-shirt stained with defendant's ejaculate from his father's
girlfriend's brother; (2) the minor's father had told the minor to "act gay" around defendant;
(3) the minor's father had told the minor, while driving him to the hospital, to place the
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No. 1-13-0657
minor's finger in the minor's own anus; (4) the minor's father had blackmailed defendant at a
previous time by coaxing defendant into inebriation and taking nude photographs of
defendant with an unnamed individual; (5) the minor's father had blackmailed defendant at
some other unidentified time for an unidentified reason; (6) the minor's father had threatened
the minor's uncle's life; and (7) the minor's father had a past history of fraud and possession
of firearms. In the motion, the State claimed these allegations from the minor's uncle were
uncorroborated hearsay.
¶ 13 On the same day, the trial court held a hearing on this motion. In regards to the T-
shirt, the trial court asked defense counsel, "you are maintaining that [the uncle] had a
conversation with [the father] in which [the father] said that [the T-shirt] came from an
encounter with an unidentified brother of the father's girlfriend?" Defense counsel replied
affirmatively, and the trial court stated that this testimony sounded like "double, triple
hearsay." However, the trial court held that it would allow defense counsel to submit an offer
of proof. In regards to the uncle testifying that the father had a history of fraudulent behavior,
the trial court held that it would allow the reputation testimony, assuming a proper
foundation was laid at trial. Defense counsel was unable to recall the specific details of how
the uncle learned the information included in the other allegations, and the trial court gave
defense counsel leave to "get some more specifics" regarding the allegations.
¶ 14 On December 11, 2012, the trial court reconvened to hear arguments on the State's
motion in limine. Defense counsel made an offer of proof regarding the testimony that the
uncle was prepared to give. The offer of proof listed a number of allegations that the uncle
had heard the father discussing the case as a means to frame defendant. The offer of proof
never stated that the uncle heard the father pressuring the minor to continue with his
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No. 1-13-0657
allegations, but it does state that "[t]hroughout his stay with his family, [the uncle] observed
[the father] berate and yell at [the minor] repeatedly and that in [the uncle's] lay opinion, [the
father] plays 'mind games' with [the minor]." The court stated "[p]resumably the statements
of the uncle are being offered by you to impeach the [minor's] father." However, because no
offer of proof was made as to what the father would testify to, the court held that it could not
yet rule on whether the uncle would be allowed to rebut it. The court did find that if the
father denied having these specific conversations with the uncle, then the uncle's testimony
could be allowed to impeach the father as to what the father said, but that this would not be
considered substantive evidence.
¶ 15 Defendant also made an offer of proof that the uncle overheard the minor telling the
father that the minor did not want to lie anymore. Defense counsel stated that he did want to
be able to ask the minor if he had told his father that he did not want to lie anymore. The trial
court responded, "*** if [the minor] is on the stand *** ask him whether he told his uncle he
didn't want to lie anymore, and if he denies it, then the uncle can certainly say that's what [the
minor] told me." The State responded that the offer of proof did not contain a time or date
when the conversation occurred. The court reminded defense counsel that a proper
foundation for introducing the uncle's testimony would need to be laid.
¶ 16 Defense counsel then stated that he wanted to introduce during opening statements,
and at trial, that a monetary demand was made by the minor's parents to defendant's
employer, who had also been employing the minor for the summer, that was based on
defendant allegedly sexually assaulting the minor in the workplace. The State responded by
arguing that the demand was in regards to a separate sexual assault that had taken place at the
Lake County workplace, and did not involve any facts from the case at bar. Defense counsel
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No. 1-13-0657
argued that the case was already being allowed in through the State. The trial court noted that
it was being let in, but only as proof of other crimes. The trial court then stated:
"THE COURT: What I suggest, counsel, we're going to get to opening statements.
Be careful what you argue in terms of that lawsuit. I will certainly allow you to brief
this for this court and I will reconsider but at this time you may not reference that
settlement between the company and the victim's family for an offense that did not
occur [in this case] and that's not the subject of this case.
***
THE COURT: Counsel, until you cite me some cases that you give me or
something to show why it's coming in, you may not reference a settlement in an
unrelated case."
¶ 17 The trial court held that it would reconsider the introduction of the civil case related
to the Lake County criminal case once defense counsel briefed the court with relevant legal
precedent.
¶ 18 II. Jury Selection
¶ 19 During voir dire, two potential jurors stated that they were uncomfortable with the
charges against defendant. One in particular noted that the charges "made the hairs" stand up
on his neck. The trial court rehabilitated both potential jurors, who stated that they could
follow the law as given to them by the trial court. After rehabilitating one of the jurors, the
following exchange occurred:
"DEFENSE COUNSEL: Well, [juror], you still seem a little unsure about that.
THE STATE: Objection, Judge.
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No. 1-13-0657
THE COURT: Sustained, counsel. He's answered the question. He said he could
be a fair juror. It is not for you to comment, sir."
¶ 20 III. Opening Statements
¶ 21 During opening statements, defense counsel stated that over the course of the trial, he
would show that the father had fabricated the evidence against defendant. Defense counsel
stated that defendant and the father had been friends for 10 years and were going into
business together. Defendant gave the father $20,000 to start that business, at which point the
father pressured the minor to bring sexual assault allegations against defendant in order to
keep the money. The father also found the semen-stained T-shirt, while at defendant's house,
and planted it as evidence. Defense counsel then stated that, by the end of the trial, the jury
would ask themselves, "Do I have a single piece of evidence in this case that did not go
through [the father]? No."
¶ 22 IV. Rehearing on Defense's Motion to Introduce the Civil Case
¶ 23 Later on the same day, after opening statements, defense counsel presented the court
with several cases regarding the introduction of the monetary demand of defendant's
employer, as well as a letter showing that a demand had been made. The letter was from a
law firm, directed to defendant's employer, stating that the minor's parents had retained the
firm for an impending lawsuit against the employer. Defense counsel also produced a letter
from the same law firm stating that it had been retained to represent the minor. This letter
made no mention of what individual(s) had retained the law firm to represent the minor. The
trial court made the following findings:
"THE COURT: In your opening statement to the jury, all the evidence went
through [the father], the T-shirt went through [the father], the T-shirt came from [the
8
No. 1-13-0657
father], every allegation will come from [the father]. That dad controlled [the minor],
put him up to this.
That is what you have stood in front of this jury and said and that is what you
have said to this court on more than one occasion. You will not be allowed to cross
examine [the minor], the complainant in this case about this civil action. If and when
the father testifies, we will again address that issue, and if it becomes ripened at a
later date as to [the minor], I will allow him to be recalled as a witness.
But I don't believe based on the records you have made, based on the documents
I've been tendered, based on what I have been told, that it is a proper area of cross
examination of a 15 year old victim of a sexual assault that his family on his behalf
filed some sort of action against the company for a sexual assault that is pending in
Lake County."
¶ 24 V. Evidence at Trial
¶ 25 A. The State's Case
¶ 26 The State's case consisted of 11 witnesses: (1) the minor; (2) Heather Evanoka,
defendant's next-door neighbor; (3) detective Lee Schaps, who investigated the case; (4)
Officer Michael Wood, a patrol officer and evidence technician; (5) Officer David Okon, an
evidence technician; (6) detective Johnathan Juhl, who collected DNA samples from the
minor and his father; (7) Ronald Tomek, a forensic scientist; (8) Andrew Garinger, a forensic
scientist; (9) William Abruscato, defendant's former cell mate; (10) Douglas Zeit,
Abruscato's attorney; and (11) a Lake County assistant State's Attorney (ASA), who
prosecuted Abruscato, and also prosecuted the defendant in the case at bar in the Lake
County criminal case.
9
No. 1-13-0657
¶ 27 1. The Minor
¶ 28 The minor testified that he was currently living with his father, and that starting in
early July 2011, at the age of 15, he began working for defendant at defendant's workplace,
where his mother was also employed. Defendant was also the boss of the minor's mother.
The minor had known defendant for many years. There was another employee who was the
same age as the minor, M.M., who was also working at the workplace for the summer. The
minor and M.M. worked in the back of the workplace, and defendant would come to the back
to check up on them six to seven times a day. During these "check-ups," defendant would
buy the minor Gatorades, put his arms around the minor's shoulders, and slap the minor's
behind. Defendant would refer to the minor and M.M. as "his boys." Defendant would also
purchase lunch for the minor and M.M. and have them eat the lunch in his office. Defendant
would ask the minor to accompany him on smoke breaks, during which defendant would
stare at the minor's crotch.
¶ 29 The minor testified that, on July 26, 2011, defendant drove the minor and M.M. to a
gym after work. On the way to the gym, defendant stopped at a retail store, where he bought
a bathing suit for M.M. and some tank tops and socks for the minor. At the gym, defendant
asked the minor and M.M. to come to the pool with him. The minor and M.M. wanted to lift
weights first, at which point defendant became angry; his face turned red and he stuck out his
tongue and bit it. After the minor and M.M. lifted weights and went swimming, they returned
to the locker room to shower and change. While the minor and M.M. were showering,
defendant peered over the curtain and stared at M.M. He then pulled the curtain of the
shower aside to ask the minor if he needed soap, to which the minor replied that the gym
provided soap. When the minor was changing after showering, defendant asked him how his
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No. 1-13-0657
"python" was doing. Defendant told the minor that he had seen the minor's "python," because
he looked at it while the minor was in the shower. Defendant bought the minor and M.M.
dinner and drove M.M. home. While driving the minor home, defendant stopped at another
retail store and picked out some shirts, deodorant, and body spray to purchase for the minor.
Defendant then asked the minor if he needed any condoms. The minor told defendant that he
did not want any condoms, but defendant put a large box of condoms in the cart and told the
minor that he was buying them for the minor. While purchasing the items, defendant asked
the minor if the minor was going to use the condoms with him. Defendant then drove the
minor home.
¶ 30 The minor testified that, after this incident, defendant began "checking-up" on the
minor 10 to 12 times a day. Defendant would ask the minor how his "six-pack" was doing,
and on one occasion asked the minor to show him his "six-pack." When the minor refused,
defendant grabbed the minor's shirt and pulled it up to show the minor's stomach. Defendant
also told the minor's father that he would begin driving the minor to work, and subsequently
began driving the minor to and from their workplace. During these trips, defendant would
touch the minor's thigh and on one trip touched the tip of the minor's penis. On one occasion,
when defendant was driving the minor home from work, defendant stopped and bought the
minor a Playstation 3 with six video games.
¶ 31 The minor testified that, on August 8, 2011, defendant, the minor, and his father 2
planned to have a barbecue after defendant and the minor finished their work day. After
work, defendant drove the minor to defendant's apartment in Cook County, where defendant
said he had some groceries to pick up for the barbecue. Defendant told the minor that he had
2
The minor's parents were separated, and the minor would live with each of them for
varying periods of time, at the minor's discretion.
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No. 1-13-0657
to come into the apartment, otherwise defendant would be in trouble. Inside the apartment,
defendant told the minor that he had purchased the minor a black jockstrap and a white
jockstrap so that the minor did not hurt himself while lifting weights. Defendant asked the
minor to try them on, and the minor refused. Defendant then turned red in the face, stuck his
tongue out, and bit it. The minor opened the door to the apartment and asked to leave.
Defendant pushed the minor onto the couch and slammed the door, at which point the minor
heard something breaking. Defendant then locked the door. Defendant grabbed the minor,
forced him into the bathroom, and told the minor that he had to try the jockstrap on in front
of defendant. The minor took off his pants and underwear and put on the jockstrap. He was
also wearing a white T-shirt. Defendant then pushed the minor into the bedroom, where
defendant fondled the minor's buttocks. Defendant pushed the minor facedown onto the bed,
opened the drawer of the desk that was next to the bed, and the minor then felt a cold liquid
on his buttocks. Defendant then used his penis to anally penetrate the minor while holding
the minor facedown on the bed. The minor felt pain and after about five minutes "felt
something wet" on the back of his shirt. The minor ran to the bathroom, closed the door, and
dressed, leaving the jockstrap on the bathroom floor. The minor was crying when he left the
bathroom, and defendant told the minor that if he ever said anything, the minor's mother
would lose her job and the minor would be living on the street. Defendant also told the minor
that no one would believe him because "[defendant was] a man who wears a shirt and tie."
After defendant brought the minor home, the minor ran upstairs and would not talk to his
father. The minor testified that he did not tell his father about the incident because the minor
was afraid no one would believe him and that the minor knew his father had a "rough past"
and "didn't want [his father] to go to jail for killing somebody." The minor took an hour-long
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No. 1-13-0657
shower and, upon leaving the shower, noticed that his T-shirt had a yellow stain on it. He
placed the T-shirt in a plastic bag and hid the bag in his closet. The minor testified that he did
this because he had learned about DNA evidence in school, he knew defendant's semen was
on the shirt, and he was scared by defendant's claim that no one would believe the minor
about what happened. The minor continued to receive rides from defendant to and from work
for the next several days, because he was scared that if he refused the rides his father would
become suspicious.
¶ 32 The minor testified that, on August 12, 2011, at their workplace, defendant asked the
minor to accompany him while he locked up the workplace for the night. When they had
reached the back of the work area, defendant held the minor's hands behind his back with one
hand, and with the other hand pulled the minor's pants down and began pulling on the minor's
penis and pubic hair. Defendant also inserted his fingers into the minor's anus. Defendant
again told the minor that if he told anyone his mother would lose her job.
¶ 33 The minor testified that, on August 15, 2011, he told M.M. that defendant had
sexually assaulted him. On that day, the minor also received a text message from defendant
at 6:12 p.m. The text message read: "If I find out you said something, you'll be living on the
street." The minor knew the text message was from defendant because defendant had given
the minor his number so that defendant could coordinate picking up the minor for work. The
minor was let go from employment on August 16, 2011.
¶ 34 The minor testified that, on August 19, 2011, his father drove him to a police station,
where the minor told detectives of the sexual assault. Detectives at that time took a picture of
the minor's cellphone showing the text message from defendant. The minor's mother and a
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No. 1-13-0657
police officer 3 drove him to a hospital to be examined. After the hospital, a police officer met
the minor at his father's house, and the minor pointed the officer to the plastic bag containing
the T-shirt that the minor was wearing when he was sexually assaulted by defendant. The
minor then identified at the trial the T-shirt he wore during the incident, the jockstrap he was
forced to wear, a photograph of the cracked door at defendant's apartment, and a picture of
the text message sent from defendant to the minor. These were later admitted into evidence
without objection.
¶ 35 During cross-examination, the minor testified that he had not made any phone calls to
defendant after August 8, 2011. The minor testified that, on August 8, 2011, he worked nine
hours. The minor testified that he never told Detective Michelle Kondrat about the incident
where defendant pulled the minor's shirt up while in defendant's office. He also testified that
he did not ask defendant to purchase him a Playstation 3. The minor testified that he and his
father had been to defendant's house three to four times for dinner.
¶ 36 Later, the following exchange occurred:
"DEFENSE COUNSEL: Where were you staying in the spring of 2012?
THE STATE: Objection. Asked and answered.
DEFENSE COUNSEL: The spring the [sic] 2012, [the State]?
MINOR: What months are you talking about?
THE COURT: Hang on one second, counsel.
State, what's your objections?
THE STATE: Judge, I'm sorry that's 2012. Relevance.
THE COURT: Okay. Counsel?
3
The minor did not testify as to the names of the police officers involved.
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No. 1-13-0657
DEFENSE COUNSEL: I think I'm headed towards some of the prior issues we
talked about, Judge.
***
(Heard outside the presence of the jury)
***
THE COURT: You want to ask the victim if his father made him bring these
allegations?
DEFENSE COUNSEL: I want to ask an alleged witness whether anyone's
influencing him. I want to ask—that's what I want to ask. I want to ask a witness
whether or not anybody's encouraging him in any way. It is the wheelhouse of cross
examination.
THE STATE: Well, there's also the wheelhouse of rules of law and relevancy,
Judge, and good faith basis to ask questions and that has not been shown.
THE COURT: Counsel, you still have not made an offer of proof to this Court as
to what the father is going to say, so if you say to [the minor] you're testifying to what
happened because your father made you and he says no, are you then calling the
father to say I made you say those? How are you going to prove it up if he denies it?
DEFENSE COUNSEL: I'm going to call the father.
THE COURT: Then make your offer of proof. You told me this morning you
haven't talked to him, so make your offer of proof of what the dad's going to say
without having talked to him.
***
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No. 1-13-0657
THE COURT: Well, then, counsel, you cannot ask a question of one witness
premised on the fact that you are going to prove it up with someone you haven't
spoken to that may or may not testify. That is not a good faith basis for asking a
question.
***
THE COURT: When did the conversation take place?
DEFENSE COUNSEL: I've been pushing [the uncle] on that. He believes—he
says-
THE COURT: Because there has to be foundation. I mean, the first level is
foundation is if you can't give the who, what, where, when, then you don't have the
foundation to ask the question.
DEFENSE COUNSEL: *** [The uncle] does not recall the specific date of the
incident and I think that is grounds for cross examination.
THE COURT: Was it before or after charges were filed?
DEFENSE COUNSEL: After.
THE COURT: So he'd already spoken to the police and he'd already been
charged? Then how is he being pressured to make false allegations? The claim had
already been made. You're talking about making pressures for the civil matter?
DEFENSE COUNSEL: No, I’m talking about—
THE COURT: Well, counsel, if he's already spoken to the police, the charges
have already been filed. How is he being pressured to file charges that have already
been filed?
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No. 1-13-0657
DEFENSE COUNSEL: He's been being pressured to continue with the charges,
Judge, and I hope—
THE COURT: That's not what you told me when we started [the] debate, counsel.
You started this by saying he was pressured to make these claims. Now you're telling
me these conversations were after the charges were already filed? The objection is
sustained."
¶ 37 The minor testified that after February 2011, his uncle moved into his grandmother's
house. The minor testified that he did not have any conversations with his uncle about the
case against defendant, and that he did not have a conversation about the case with his father,
either in front of his uncle or within hearing distance of his uncle. The minor testified that he
did talk to a Detective Lee Schaps about his case and told Schaps about defendant pushing
him onto the couch in defendant's apartment. The minor testified that it was M.M. who told
him that he had been laid off. The minor testified that he never had any conversation with
Deane Fraser 4 about the end of his employment. The following exchange then occurred:
"DEFENSE COUNSEL: Where do you live now?
THE STATE: Objection.
THE COURT: Sustained.
DEFENSE COUNSEL: Who do you live with now?
THE STATE: Objection.
THE COURT: Counsel, how is that relevant?
DEFENSE COUNSEL: Judge, I don't—
THE COURT: Sustained.
4
Deane Fraser was the vice president of operations at defendant's workplace.
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No. 1-13-0657
DEFENSE COUNSEL: I think it's relevant.
THE COURT: And I respectfully disagree. Sustained. He's not to disclose where
he lives now or—
DEFENSE COUNSEL: Not location.
THE COURT: Who he lives with. No. No. Sustained.
DEFENSE COUNSEL: I don't have any questions right now, Judge."
¶ 38 2. Heather Evanoka
¶ 39 Heather Evanoka testified that on August 8, 2011, she lived next door to defendant.
On this date she heard an altercation come from defendant's apartment, a door slam, and
defendant yelling "I'm taking you home." On cross-examination, Evanoka testified that she
heard two voices yelling back and forth. Defendant and Evanoka were living in an apartment
complex, and their doors were 8 to 10 feet apart. She did not observe the two individuals
involved in the altercation.
¶ 40 3. Motion for Mistrial
¶ 41 Defense counsel then moved for a mistrial. Defense counsel argued that the trial court
had limited his opening statement and cross-examination of the minor, and as a result, the
defense's case was irrefutably damaged. Specifically, defense counsel argued that he was
barred from effectively introducing the minor's financial motive regarding the demand letter
sent to the workplace as a result of the Lake County case. The following exchange occurred:
"DEFENSE COUNSEL: Defendant's Exhibit A says that the law firm represents
[the minor]. The record must be clear on that.
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No. 1-13-0657
THE COURT: Well, Counsel, the letter you showed the Court yesterday was that
they were retained to represent the family of [the minor]. This is not the letter you
showed the Court yesterday, Counsel.
DEFENSE COUNSEL: I switched it out. Judge, I said my apologies–
THE COURT: Yeah, you switched it out, Counsel. Exactly.
DEFENS COUNSEL: I handed you the second one yesterday, Judge. The record
will show that. The—
THE COURT: The record will show that the letter you tendered to this Court
yesterday in support of your argument said that that law firm had been hired to
represent the family, I repeat, the family, of [the minor], Counsel. This is not the letter
I was shown yesterday.
DEFENSE COUNSEL: Okay, Judge. Then I said—then I said, Judge, I handed
you the wrong one. I said I handed you the wrong one. This is the one that shows that
it's [the minor].
THE COURT: Anything else, Counsel?"
¶ 42 Defense counsel then stated that, even though the civil lawsuit had led to a completed
settlement between the minor and the company, there was an ongoing financial motive to
continue the allegations, because testifying on the stand that the allegations were false might
lead to the company demanding a return of the settlement.
¶ 43 The trial court proceeded to respond to the claims made in the motion. The first claim
stated that the trial court had ordered defense counsel to make no references to any civil
actions or demands for money. The trial court responded that "this court's recollection is this
court admonished counsel to be careful because there was pretrial debate as to whether that
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No. 1-13-0657
evidence would be presented." The trial court also stated that defense counsel had yet to
complete his legal research so the court was incapable of ruling on the matter before trial.
¶ 44 The motion's second claim was that the trial court had barred defense counsel from
making reference to the civil action in the Lake County case during cross-examination of the
minor. The court then reiterated that there were two sexual assaults that defendant was
accused of committing against the minor: one in Lake County and one in Cook County. The
civil litigation was related to Lake County, and any civil litigation related to the Lake County
case was not properly before the court. The trial court noted:
"THE COURT: Counsel, as I indicated to you yesterday, if you were to go before
this jury and put forth the fact that there was some sort of settlement that the State
would then have the opportunity through the door that you opened to indicate, why
was that case settled? Because he did it.
You indicated yesterday, Counsel, that you did not have a problem with evidence
coming in from either a lawyer of [the company] that they determined that your client
sexually assaulted this child at the company.
Well, this Court has an obligation to make sure your client receives a fair trial,
and this court cannot perceive that if this jury were to hear from a civil lawyer who
said he reviewed the facts, someone from [the company] that they reviewed the facts,
and the reason they paid out the money is because they think he did it, I think that
might prejudice your client, and that is why the Court ruled as it did."
¶ 45 The motion for a mistrial was then denied. Defense counsel then made a separate
motion for substitution of judge based on section 114-5(d) of the Code of Criminal
Procedure. 725 ILCS 5/114-5(d) (West 2010). The trial court gave a recess so defense
20
No. 1-13-0657
counsel could write his affidavit, and then transferred the motion to a different judge for a
hearing. The motion was denied and the trial resumed.
¶ 46 4. Detective Lee Schaps
¶ 47 Detective Lee Schaps, a detective with the Mount Prospect police department,
testified that, on August 20, 2011, he interviewed the minor and his father as part of his
investigation into defendant's alleged sexual assault. On August 23, 2011, Schaps procured a
search warrant and searched defendant's apartment. Schaps observed a crack in defendant's
door. Inside the apartment, Schaps found a gym bag with a white and a black jockstrap in it.
In defendant's bedroom there was a desk with computer cords, but no computer or laptop.
Schaps found, inside of a drawer in defendant's nightstand, a tube of personal lubricant.
Schaps also testified that he was present when Officer David Okon, pursuant to a court order,
procured a sample of defendant's DNA.
¶ 48 During cross-examination, Detective Schaps testified that the minor told him that
defendant pushed him over the couch. Schaps testified that he did not direct anyone to do any
forensic testing of the black jockstrap that defendant allegedly forced the minor to wear. He
further testified that he did collect a comforter from defendant's bed, however, no forensic
testing was completed on the comforter.
¶ 49 On redirect, Schaps testified that he did not observe any hair or stains on either the
jockstrap or the comforter, and that if he had he would have had these items tested for DNA.
¶ 50 5. Officer Michael Wood
¶ 51 Officer Michael Wood, a patrol officer and evidence technician for the Mount
Prospect police department, testified that, on August 19, 2011, he was assigned to visit the
hospital where the minor was examined. Wood drove the minor to his father's apartment. In
21
No. 1-13-0657
the apartment, the minor directed Wood to the closet, where Wood recovered a grocery bag
containing a white T-shirt. Wood then entered the T-shirt into the department's property
evidence system. On cross-examination, Wood testified that neither he, nor Officer Ollech, 5
who was present at the time, took photos of the closet or any items located in the closet.
¶ 52 6. Officer David Okon
¶ 53 Officer David Okon, a Mount Prospect police technician, testified that, on August 24,
2011, he received an assignment to process the T-shirt recovered by Officer Wood. He dried
the shirt, packaged it, and sent it to the Illinois State Police Crime Lab. Okon further testified
that, on September 28, 2011, he accompanied Detective Schaps to the Third District
courthouse, where he obtained a buccal swab sample from defendant. This sample was then
sent to the Illinois State Police Crime Lab.
¶ 54 During cross-examination, Officer Okon testified that his lab received a comforter,
but that they did not analyze it.
¶ 55 7. Detective Jonathan Juhl
¶ 56 Detective Johnathan Juhl, a detective with the Mount Prospect police department,
testified that, on November 1, 2011, in the presence of Detective Schap, he collected DNA
samples via oral swabs from the minor and his father. These samples were sent to the Illinois
State Police Crime Lab. There were no questions on cross-examination.
¶ 57 8. Ronald Tomek
¶ 58 Ronald Tomek, a forensic scientist with the Illinois state police, testified that he had
received specialized training in DNA analysis and forensic biology. Tomek was found
qualified in the area of forensic biology without objection, and he testified that he tested the
5
The record does not reflect Officer Ollech's first name.
22
No. 1-13-0657
T-shirt sent by the Mount Prospect police department. Using an alternate light source (ALS),
Tomek identified that there was a semen stain on the middle of the back of the T-shirt.
Tomek removed a section of the stain for DNA testing, although he did not perform the
testing himself. Tomek testified that the stain "seemed to soak through" to a portion of the
front of the shirt and that this would not be uncommon for a shirt kept in a plastic bag if it
had a "heavy stain."
¶ 59 On cross-examination, Tomek testified that he used an ALS on the stain located on
the front of the shirt, but it did not identify the stain as semen. Tomek did not conduct any
further testing on the stain located on the front of the shirt, and he did not put into his notes if
there were sweat stains on the shirt. If there were, they would not have appeared using an
ALS. Tomek testified that he did a "taping" of the shirt, where he placed tape over the shirt to
remove hair and skin follicles. However, Tomek did not analyze or test these samples, as this
was typically performed by a different lab.
¶ 60 9. Andrew Garinger
¶ 61 Andrew Garinger, a forensic scientist with the Illinois State Police, testified that he
had received specialized training in DNA analysis. He was found qualified in the area of
forensic DNA analysis without objection. Garinger testified that he analyzed the sample
taken from the T-shirt with standards obtained from both the minor and defendant. The
sample obtained from the T-shirt matched the DNA obtained from defendant's standard.
There was no DNA match between the sample obtained from the T-shirt and the DNA
sample obtained from the minor. On cross-examination, Garinger testified that he did not
perform any testing on the sample from the T-shirt besides the DNA testing. On redirect
examination, Garinger testified that it was possible for a person to wear a T-shirt without
23
No. 1-13-0657
leaving their DNA on the T-shirt. On recross-examination, Garinger testified that he could
not be sure that semen was the only bodily fluid contained on the sample of the T-shirt, and
that a different lab would have been responsible for identifying if there were other fluids
besides semen on the sample.
¶ 62 10. William Abruscato
¶ 63 William Abruscato testified that, from the end of August to the middle of November,
2011, he shared a cell in county jail with defendant. Abruscato testified he was in jail at this
time for aggravated domestic battery against his wife, and for violating an order of
protection. He pled guilty to this offense on December 8, 2011, and received 2 years
intensive probation, 75 hours of alcohol treatment, 100 hours community service, and 90
hours of anger management classes. Abruscato testified that, before appearing in court to
testify, he had served one year of probation, and that no one made a deal with him in return
for his testimony against defendant. During his and defendant's mutual incarceration,
defendant began to tell Abruscato about the minor. Defendant claimed that the minor told
defendant that he found defendant attractive and that he liked older men. Defendant told
Abruscato that he would take the minor to the gym and that one time defendant had observed
the minor's penis at the gym and referred to it as an "anaconda." Defendant told Abruscato
about driving the minor to work and detailed the relationship of the minor's parents.
Defendant told Abruscato about the gifts he gave to the minor, such as games and clothes.
Abruscato testified that defendant told him about only one incident where he brought the
minor to his apartment. The first time defendant recounted the story he stated that he and the
minor argued about the expiration date on an item of food. The second time that defendant
told Abruscato about the incident, defendant related that he had purchased a gym item for the
24
No. 1-13-0657
minor and that the minor had modeled it for him. The minor then asked to leave and
defendant slammed the apartment door to prevent him from leaving. Defendant then engaged
in anal sex with the minor. After the sexual encounter, the minor was crying and Abruscato
testified that "[defendant's] words exactly were to tell the kid to grow up and be a man."
¶ 64 Abruscato further testified that defendant told him that that he was concerned about
his cell phone in police property. Defendant also told Abruscato that he had asked a John
Velez, who was staying at defendant's apartment, to dispose of defendant's gym bag,
computer, and cell phone, and to fix defendant's door. Defendant was angry with Velez
because he had failed to dispose of the cell phone and gym bag, and because he had not fixed
the door. Abruscato knew defendant was angry with Velez because defendant would clench
his fist, stick his tongue out of his mouth, and bite his tongue. Defendant also told Abruscato
that he was glad the police had not taken the comforter from his bed, because defendant had
engaged in sex with the minor on top of the comforter.
¶ 65 Abruscato then testified that the reason he came forward with his testimony was
because defendant had told him several times that "[h]e was going to have the boy beat up
and killed with a baseball bat and make it look gang related, if there was no victim, no case,
quote." After hearing these allegations, Abruscato met with a priest and then with his
attorney, Douglas Zeit, and informed him of the conversations Abruscato had with defendant.
Abruscato and Zeit met with a Lake County ASA and Detective Michelle Kondrat, and
informed them of the conversations between Abruscato and defendant. The ASA who
Abruscato spoke to was in charge of prosecuting both his case and defendant's Lake County
criminal case. Abruscato testified that, before coming forward, he had been free to leave
prison. However, because as a condition of his release he was required to register an address
25
No. 1-13-0657
where he would be staying, and because Abruscato did not have such a place to live, he
remained in jail for several months.
¶ 66 Abruscato also testified that defendant told him about another incident that took place
at defendant's workplace. Defendant "put his hands down [the minor's] pants and was kind of
rough with him." Defendant was concerned about pubic hairs being left on the ground of the
workplace after this incident. Defendant told Abruscato that he had made a threat to the
minor that the minor's mother would lose her job if the minor told anyone about the sexual
assault.
¶ 67 On cross-examination, Abruscato testified that defendant did not have any
"documents" in his cell, and even if there had been documents, Abruscato was without his
glasses and would have been unable to read them. Abruscato testified that he began taking
notes of the conversations after talking to the priest. While he did not want to be incarcerated
with the IDOC, he was confident that this would not happen, because his wife had failed to
appear in court seven times and refused to press charges.
¶ 68 Abruscato further testified that before his incarceration in 2011, he had been
incarcerated with IDOC for a driving-under-the-influence charge (DUI). On redirect
examination, Abruscato testified that he had never been given any paperwork regarding
defendant's case from either the Lake County ASA or Douglas Zeit, his attorney. He also
testified that the previous DUI charge had been reduced before he was taken into custody on
his domestic-battery charge.
¶ 69 11. Douglas Zeit
¶ 70 Douglas Zeit, Abruscato's attorney, testified that Abruscato was not given
consideration for the information he provided to the Lake County ASA and Detective
26
No. 1-13-0657
Kondrat. Abruscatto had contacted Zeit after twice meeting with a priest. On cross-
examination, Zeit testified that Abruscato's DUI had been reduced to a reckless driving
charge on December 8, 2011.
¶ 71 12. The Lake County ASA
¶ 72 The ASA who prosecuted both Abruscato and defendant for his Lake County criminal
case testified that in November of 2011, he met with Detective Kondrat, Abruscato, and Zeit.
During this meeting, Abruscato informed the ASA that defendant planned to have the minor
murdered. The ASA never gave Abruscato any consideration for his testimony. He testified
that he had previously made deals with convicted defendants to testify in court, however, he
always made sure that the judge was informed of the deal because that was the only way he
could enforce the deal if the defendant later refused to testify. He testified that Abruscato was
already on periodic imprisonment before coming forward with the conversations with
defendant. One of the reasons he allowed Abruscato to plead to lesser charges was because
Abruscato's wife had lung cancer and had contacted the ASA a number of times.
¶ 73 On cross-examination, the ASA testified that he was still in the process of prosecuting
defendant for his Lake County criminal case. Another reason he was willing to reduce
Abruscato's DUI charge was that it had been 15 years since Abruscato had received his last
DUI. He further testified that he was not in charge of Abruscato's case until after the meeting
with Kondrat, Abruscato, and Zeit. He further testified that his meeting with Abruscato was
not designed to make a deal, but rather to make sure that the minor was safe. The ASA also
testified that Abruscato's wife refused to press charges against him. The State rested its case
and defense counsel then moved for a directed verdict, which was denied.
27
No. 1-13-0657
¶ 74 B. Defense's Case
¶ 75 The defense's case consisted of 11 witnesses; (1) Dr. Lina Abujamra, an emergency
room doctor; (2) the minor's father; (3) Kirk Cole, an employee of a sewage equipment
company; 6 (4) the minor's mother; (5) Deane Fraser, vice president of operations at
defendant's workplace; (6) the minor's uncle; (7) Detective Michelle Kondrat; (8) Detectve
Lee Schaps; (9) Dan Markus, a customer service analyst and legal liaison for Verizon
Wireless; (10) defendant; and (11) John Mariane, a record keeper for the City of Chicago,
Business Affairs and Consumer Protection Department.
¶ 76 1. Dr. Lina Abujamra
¶ 77 Dr. Lina Abujamra, an emergency room physician, testified that, on August 20, 2011,
she was working in the emergency room (ER) of a community hospital when she performed
a medical exam on the minor. Dr. Abujamra had no independent recollection of the
examination of the minor. According to Abjuamra's notes of the exam, the minor told the
doctor that he had been anally penetrated by a penis on August 8 and August 12. Abujamra
did not observe any abrasions or bruising on the minor, other than a single red spot on his
neck that was unconnected to the sexual assault.
¶ 78 On cross-examination, Abujamra testified that it would not be unusual that a victim of
sexual assault did not show rectal trauma two weeks after the assault took place. On redirect
examination, Abujamra testified that most sexual assault victims do not display any physical
abnormalities, even the day after an assault.
6
The record does not reflect what Cole's actual position was in the sewage equipment
company.
28
No. 1-13-0657
¶ 79 2. The Minor's Father
¶ 80 The minor's father testified that he had owned a sewer and plumbing company for 15
years and had never worked with defendant. The father gave defendant answers to a test to
obtain a drain layer license.
¶ 81 The father testified that he had first met defendant 15 years ago, but had not really
spent time with him until about five months before the incident with the minor. Defendant
and the father had discussed opening a sewage business together and defendant applied for a
business license for this company. The father testified that he had been to defendant's
apartment "a few times" to discuss the business, but that their plans to start a business fell
through because defendant was too busy to put in the effort to start the business. The father
testified that defendant did not give him money to start the business. The father did not
consider defendant an investor because defendant was bankrupt, and this was why defendant
had approached the father with the idea of starting a business.
¶ 82 The father testified that he, defendant, and the minor had planned to have a barbecue
on August 8, 2011. However, the barbecue was canceled when defendant dropped the minor
off. The minor came "barging in the door. He ran in the bathroom. He stayed in there for, I
think, approximately like two hours ***." The father testified that he did send text messages
and make phone calls to defendant about starting a business together, but could not recall
how many. The father testified that minor currently lives with him. The father further
testified that he did hire a law firm to make a monetary demand from defendant's employer.
The father denied ever having a conversation with the uncle regarding the sexual assault of
the minor. Defense counsel then asked the father if he told the uncle that he had planted the
shirt. The following exchange occurred during sidebar:
29
No. 1-13-0657
"DEFENSE COUNSEL: A few things. Certainly, the forensic analysis, I think,
does change some of our earlier conversations. The Court was right. The forensic
evidence is very interesting. At this point that's a brand new T-shirt.
THE COURT: Counsel, you could argue that but that's not what the evidence is.
***
DEFENSE COUNSEL: *** I am saying a separate set of the hearsay rule. I think
his statement to [the uncle] that I planted the shirt is a statement against his interest.
THE COURT: Counsel, I will allow you to ask the question, although, I believe it
is on very gray grounds as to whether it is a proper question. If you want to ask him
that direct question, did you tell your brother that you planted a T-shirt, I will let you
ask that question."
¶ 83 The father denied telling the uncle that he had planted the T-shirt in the minor's
closet. The father testified that he had been previously convicted of impersonating a police
officer and that he had a current case pending on a drug charge.
¶ 84 On cross-examination, the father testified that he was not aware of the T-shirt in the
minor's closet until the police recovered it. The father also testified that neither he nor his son
had received any financial compensation for the assault that took place in defendant's
apartment.
¶ 85 3. Kirk Cole
¶ 86 Before Kirk Cole was called to testify, the court and counsel engaged in a discussion
relating to certain documents defense counsel planned to introduce through witnesses. In
particular there was a business license obtained by defendant in defendant's name for a
sewage business with the same business name as the father's sewage business. The State
30
No. 1-13-0657
argued that this document was irrelevant, because it did not list the father as a partner, and
that the fact that defendant applied for a business license with the same name as the father's
business was irrelevant. The trial court made the following ruling:
"THE COURT: He can ask the question. He can put in that his client submitted
a—what appears to be, what the jury may find to be, a fraudulent license because he
used someone else's company's name that they've been in business for 15 years. So
you can certainly put that before the jury. We're done arguing this issue."
¶ 87 Kirk Cole testified that he was an employee for a company that acted as a distributor
and supplier of drain cleaning equipment. Cole testified that the father was a regular
customer of the company. Defense counsel asked Cole if he recognized defendant, and Cole
responded that he did recognize defendant, but only from the photo defense counsel had
shown him the previous day. Cole testified that, at a date he did not recall, an individual
wearing a shirt and tie came in with the father to purchase equipment. Cole could not be sure
that the man with the father was defendant. The father and the other individual tried to
purchase $20,000 of equipment, but their credit card was declined. They then left the store.
¶ 88 4. The Minor's Mother
¶ 89 The minor's mother testified that defendant had approached her and offered, on behalf
of their company, to hire the minor to do part-time work during the summer. The mother had
previously been involved in the father's sewage company, and had filed the paperwork to
form that business. The following exchange then occurred:
"DEFENSE COUNSEL: Okay. As a matter of fact, did you ever talk to
[defendant] about filling out applications in 2011?
MOTHER: Yes.
31
No. 1-13-0657
THE STATE: Objection; foundation.
THE COURT: Sustained.
***
(The following proceedings were had in open court out of the hearing of the jury.)
***
THE COURT: And what is she going to say? That she talked to [defendant] about
the sewer business?
DEFENSE COUNSEL: About the license.
THE COURT: You can tell—you can put in—although I continue to question its
relevance in the instant case—that she had discussions with him about the sewer
license. But how much more are you going to ask her about it? That's my question.
DEFENSE COUNSEL: We'd be done with it by now. I was just trying to ask
about the—about the connection that she knows that he filled out the applications.
She assisted in it.
THE COURT: Well, Counsel, I don't think—I don't think it's relevant. I don't
think the jury is going to think it's relevant, but ask the question."
¶ 90 The following exchange then occurred:
"DEFENSE COUNSEL: *** did you have conversations with [defendant] about
this company, [the sewer company]?
MOTHER: Yes.
***
DEFENSE COUNSEL: Did you and [defendant] discuss the company?
32
No. 1-13-0657
MOTHER: Yes.
DEFENSE COUNSEL: Did you discuss the applications for the permits—for the
licenses? Pardon me, for the licenses.
THE STATE: Objection, Judge. What does he mean by discussions, and is this
hearsay?
THE COURT: Counsel, your response to the hearsay objection?
DEFENSE COUNSEL: It's statements that she—it's statements—it's information
that she is giving to [defendant]. She is not an out-of-court declarant. It's not being
offered for the truth of the matter asserted. It is being offered for the effect on
[defendant] and for the information—
THE COURT: Based on that, Counsel, the objection is sustained.
***
(The following proceedings were had in open court out of the hearing of the jury)
THE COURT: First of all, Counsel, in terms of your representation that it's not
being offered for the truth of the matter asserted, you've told me repeatedly this
morning that the fact that they were in business together was something you were
trying to prove to the jury, so it is being offered for the truth of the matter asserted.
Second of all, I'm not going to allow you to bring self-serving statements of your
client through this witness. It's hearsay.
DEFENSE COUNSEL: How is it self-serving, Judge?
THE COURT: Because you're trying to prove what was in this client's mind
through this woman.
***
33
No. 1-13-0657
(The following proceedings were had in open court in the presence and the
hearing of the jury.)
***
DEFENSE COUNSEL: Did you help [defendant] with any documents?
THE STATE: Objection.
THE COURT: Overruled. Did you help him with any documents, ma'am?
MOTHER: I helped [defendant] with some of the questions that might be on the
test.
DEFENSE COUNSEL: What kind of test?
MOTHER: A drain layer test."
¶ 91 The mother testified that the father hired a law firm to bring a claim against
defendant's company. On cross-examination, the mother testified that defendant was in
charge of paying the minor for the work he did during the summer.
¶ 92 5. Deane Fraser
¶ 93 Deane Fraser testified that he was the vice president of operations at defendant's
employer. Fraser testified that the decision to hire minor and M.M. for the summer was made
by defendant, Fraser, and the owner of the business. Fraser testified that defendant did not
have the power to fire people.
¶ 94 6. The Minor's Uncle
¶ 95 The minor's uncle testified that from February to June of 2012 he was living with the
minor's grandmother in Chicago. The following exchange then occurred:
34
No. 1-13-0657
"DEFENSE COUNSEL: Okay. Now, [uncle], did you ever—did you ever hear a
conversation between—did you ever hear a conversation between [the minor] and
[the father] regarding this criminal case?
THE STATE: Objection.
***
(Heard in sidebar.)
***
DEFENSE COUNSEL: I believe that [the minor] said to his father that he didn't
want to lie anymore.
THE COURT: He was—counsel, he never asked [the minor] that question.
***
THE COURT: But you need to lay the foundation of the specific [conversation].
DEFENSE COUNSEL: Judge, under People versus Bell, if they deny having the
conversation at all, you do not need to confront with a specific statement. It is right
here in this case. It is. 27 Illinois—
***
THE COURT: So you are asking him if he—what was it now? In my ruling
before the witnesses took the stand, I told you you can specifically ask [the minor]
whether he ever told his uncle that he was tired of lying. You never asked that
question. I am not going to allow you to perfect impeachment that was not laid,
especially in the area—"
¶ 96 The uncle testified that he had heard the father say several times to both the minor
and the grandmother that he had planted the T-shirt used as evidence against defendant. On
35
No. 1-13-0657
cross-examination, the uncle testified that he had spent time in prison for distribution of
drugs and for possession of a firearm by a convict. The uncle testified that he was not close
to the father, who is his brother.
¶ 97 7. Detective Michelle Kondrat
¶ 98 Detective Michelle Kondrat testified that she was an investigator for the Village of
Buffalo Grove assigned to investigate the sexual assault involving the minor. As part of her
investigation she interviewed the minor. During this interview, the minor did not mention
defendant lifting up the minor's shirt in defendant's cubicle. The minor did not tell Kondrat
about defendant touching the minor's penis while driving to work. Kondrat also interviewed
Abrsucato, along with Zeit and the Lake County ASA. During this interview, Abruscato did
not mention defendant saying that he told the minor to grow up and be a man. However,
Abruscato did mention before the interview that he did not have his notes with him, and that
he would be unable to remember everything that was said between him and defendant while
they were cellmates.
¶ 99 On cross-examination, Kondrat testified that the minor did mention being
uncomfortable around defendant. The minor did tell Kondrat that defendant touched him
numerous times on his buttocks. The minor also told Kondrat about defendant inserting his
fingers into the minor's anus at their workplace. Kondrat further testified that Abruscato told
Kondrat about defendant slamming the door of his apartment, forcing the minor to wear a
jockstrap, and that defendant raped the minor.
¶ 100 8. Detective Lee Schaps
¶ 101 Schaps testified that he did not instruct the crime lab to perform testing on the
comforter recovered from defendant's apartment. He also testified that when interviewing the
36
No. 1-13-0657
father, the father had mentioned that he and defendant were friendly and had been working
on opening a business together. On cross-examination, Scaps testified that he did not think
there would have been evidence on the comforter pertaining to the case at bar. On redirect
examination, Schaps testified that the father had told him that defendant was an "anticipated
investor" in his business.
¶ 102 9. Dan Markus
¶ 103 Dan Markus testified that he is a customer service analyst and legal liaison for
Verizon Wireless. Markus verified the authenticity of the telephone records he was presented
by defense counsel. These records were in relation to defendant's incoming and outgoing
messages, and were later admitted into evidence without objection. The records detailed a
number of phone calls and text messages between defendant and two individuals. 7 Some of
these calls occurred after the alleged sexual assault on August 8, 2011.
¶ 104 10. Defendant
¶ 105 Defendant testified that he did not have the power to fire people. Defendant testified
that he only checked in on the minor and M.M. to make sure they were working safely, and
he would do this only between two to four times a day. Defendant testified that he purchased
the boys drinks only because it was hot inside the workplace, and he had the boys eat lunch
in his cubicle only to make sure they "didn't take forever." Defendant denied ever touching
the minor or lifting his shirt up while in defendant's cubicle. Defendant denied ever staring at
the minor's genital area while taking a break to smoke cigarettes. Defendant testified that he
and the minor's father planned to go into business together, and that, per their agreement,
7
The State stipulated to the phone number of defendant, the other two numbers were not
directly linked to specific individuals during Markus' testimony. However, based on the father's
testimony and the picture of the text message sent to the minor, these phone numbers belonged to
the father and the minor.
37
No. 1-13-0657
defendant was supposed to obtain the needed licenses. Defendant did apply for these
licenses. Defendant at one point went to a sewage equipment store with the father, where his
credit card was declined.
¶ 106 Defendant testified that when he was arrested he had his cell phone on him. He
further testified that the father and the minor had been to his apartment on numerous
occasions. Defendant testified that he brought the minor and M.M. to the gym only because
they asked to go, and that he did not make any mention of their body parts while at the gym.
Defendant testified that he purchased the minor a Play Station 3 only at the request of the
minor's father. Defendant testified that, on August 8, 2011, the day of the alleged sexual
assault, defendant brought the minor to his apartment after work to retrieve his credit card
and some items for the barbecue. The minor became upset when defendant suggested
cooking potatoes that were past their expiration date. At this point, the minor began yelling at
defendant, who did not yell in return. After this, the minor and defendant left to purchase
groceries. Defendant testified that he never raped the minor or asked him to try on a
jockstrap. Defendant denied ever slamming his door, and was unsure of why there was a
crack in his door. When defendant and the minor reached the father's house, the father
canceled the barbecue for unspecified reasons. Defendant also denied ever touching the
minor at their workplace. Defendant denied ever sending a threatening text to the minor.
¶ 107 Defendant testified that he knew Abruscato as his former cellmate, but denied that he
ever told Abruscato that he attacked the minor or that he planned on having the minor killed.
Defendant testified that he had in his cell the police reports made available to the defense,
and that he left them in his cell on occasions while he was not in the cell. Defendant testified
38
No. 1-13-0657
that the minor and his father were left alone in his apartment on a number of occasions. He
had, on occasion, masturbated into white T-shirts in his apartment.
¶ 108 On cross-examination, defendant testified that he received the police reports from his
counsel. Defendant testified that he did not realize that this violated the law. The exchange
then occurred during a sidebar:
"DEFENSE COUNSEL: Regarding the statement to [defendant] implies
[defendant] has done something improper. *** But [defendant] has not done anything
improper, so I'm asking for a mistrial. It implies [defendant] did something wrong,
and he did not.
THE COURT: He answered the question. He didn't know he wasn't supposed to
have them.
DEFENSE COUNSEL: Would you instruct the jury [defendant] did not do
anything wrong?
THE COURT: No. In doing so, I’m going to be hiding the fact that you did.
***
THE COURT: If you want to show that [defendant] didn't do anything wrong, I
would maybe ask one question, 'You did not ask for the reports. You did not know
you were [not] supposed to have them,' and leave it at that.
DEFENSE COUNSEL: Right."
¶ 109 Defendant testified that he did not ask for the police reports. When he applied for the
business license for the business he was going to start with the father, defendant applied for
the license in his name as a sole proprietor. The following exchange then occurred:
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No. 1-13-0657
"THE STATE: And you heard the testimony of [the minor, who] testif[ied] about
how from that phone number with [defendant's name,] and the number showing, 'If I
found out you said something, you'll be living on the street.' You heard him testify to
that, right?
DEFENDANT: Yes.
DEFENSE COUNSEL: Objection. I don't think that's a proper question to ask
about prior testimony in that way.
THE COURT: Overruled."
¶ 110 Defendant testified that he did hire the minor and M.M., but only with the consent of
the company's owner and Fraser. He also paid both boys out of the company's "petty cash,"
of which defendant was in charge. The following exchange then occurred:
"THE STATE: You're telling us by the way that [the minor] got on the witness
stand here that day and told all of these people about how he was anally raped by you
and digitally penetrated by you and he made the whole thing up, right?
DEFENDANT: Yes sir.
***
THE STATE: You heard Evanoka testify, from Pittsburgh, did you?
DEFENDANT: Yes, sir
***
THE STATE: And you heard her tell from that witness stand about how she heard
the door slam and you yell out, 'I'm taking you home'?
DEFENSE COUNSEL: Objection.
THE COURT: Overruled.
40
No. 1-13-0657
DEFENDANT: I never said that."
¶ 111 Defendant testified that, while he had given the father $19,000, he did not have any
documentation of this transaction, or any documents detailing their arranged business
partnership. The State then asked defendant if he was planning on perpetrating a fraud by
applying for a business license in only his name, while running the business with the minor's
father as a partner. Defendant denied planning to commit fraud, or that he had acted
fraudulently. Defendant testified that he did buy the minor condoms, but only because the
minor asked him to do so.
¶ 112 On redirect examination, defendant again denied having intentionally perpetrated a
fraud.
¶ 113 On recross-examination, defendant testified that, while he had lived in his apartment
for over 20 years, he had never noticed a crack in his door.
¶ 114 11. John Mariane
¶ 115 John Mariane testified that he is a records keeper who is also in charge of licenses for
the City of Chicago's Business Affairs and Consumer Protection Department. Mariane
testified that defendant applied online for two licenses for his sewage business. Both of these
licenses were issued. On cross-examination, Mariane testified that if defendant filed the
license as a sole proprietor, but was actually a partner of a business, he could have his license
revoked and face jail time. On redirect examination, Mariane testified that, if someone
applied as a sole proprietor, and their business model changed, they could file paperwork and
pay a fee to amend their license application.
¶ 116 Defense counsel then rested.
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No. 1-13-0657
¶ 117 C. The State's Rebuttal
¶ 118 In rebuttal, the State called the minor's grandmother, who testified that at no time
between February 2012 and June 2012 was there an occasion where the minor, the father,
and the uncle were in her house together or that they engaged in any conversations in her
house. She testified that defendant's case was never mentioned in her house, and that the
father and the uncle did not "get along." The State then rested its case, and defense counsel
moved for a directed verdict, which was denied.
¶ 119 IV. Closing Arguments
¶ 120 The trial court discussed the following outside of the presence of the jury:
"DEFENSE COUNSEL: Judge, I would note that the courtroom does have a dry
erase board over in the corner. I would ask to use that in my closing.
***
THE COURT: Counsel, my only issue with the dry erase board is you cannot
testify before the jury.
DEFENSE COUNSEL: Well, no, Judge. It would be a list of the points, for
example. I'm not going to put the word 'not guilty' or 'argument.' I'm not going to put
'injustice.' I'm going to put a list of points, for example—
***
THE COURT: Okay. Let's bring the jury in."
¶ 121 During the defense's closing, defense counsel began to use the whiteboard, the State
objected, stating: "Your Honor, I'm going to object to this. First of all, I can't see what he's
doing; and, second of all, he's putting demonstrative evidence on the board." The following
exchange then occurred during a sidebar:
42
No. 1-13-0657
"THE COURT: Okay. Counsel, maybe I misunderstood what you said you were
going to use the board for. But what exactly—as I indicated to you, I will not allow
you to recreate the evidence for the jury.
¶ 122 The trial court then allowed defense counsel to continue with closing, and allowed
defense counsel to continue to use the whiteboard. During defense's closing, the following
exchange occurred:
"DEFENSE COUNSEL: Am I allowed to ask rhetorical questions?
THE COURT: You may ask that one, counsel, and then you have two minutes.
DEFENSE COUNSEL: I would ask for more time.
THE COURT: Counsel, you're ten minutes over the time that the Court allowed
you in the first place."
¶ 123 During his closing, defense counsel stated that the minor, his father, his grandmother,
and Abruscato lied, and that when there were "this many lies" in trial, the jury must vote not
guilty. During the State's rebuttal, the following exchange occurred:
THE STATE: *** You know, folks, there's an old saying, country saying. It says
when you get kicked by the horse the first time, it's the horse's fault. When you get
kicked the second time, it's your own fault. Don't let anybody kick you into finding
this guy not guilty.
DEFENSE COUNSEL: Objection.
THE COURT: Overruled.
THE STATE: Because for that to happen, you've got to believe that the evidence
that was presented here was fabricated, incompetently handled, that there was perjury,
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No. 1-13-0657
and the unluckiest man in the world sat over here and had a T-shirt found in his
laundry."
¶ 124 VI. Conviction and Sentencing
¶ 125 After 3½ hours of deliberations, the jury sent out a note reading: "We are now
deadlocked 6-6. What is the next step?" The trial court sent the jury a note reading, "continue
your deliberations." On the second day of deliberations, the jury found defendant guilty of
unlawful restraint, criminal sexual assault, and aggravated criminal sexual assault.
¶ 126 On February 6, 2013, the trial court heard defense's motion for a new trial and
judgment notwithstanding the verdict, which was denied, and then the court proceeded to
sentencing. In mitigation, the trial court received letters attesting to defendant's good
character and his work with the Salvation Army. In aggravation, the minor stated that, as a
result of the sexual assault, he suffered from depression, had trouble concentrating in school,
had difficulty eating, and had difficulty engaging in healthy relationships with his peers. The
trial court also considered: defendant's prior criminal history, which was from a 1978
conviction for indecent liberties with a child; that defendant's action caused or threatened
serious harm; that defendant utilized his professional position in furtherance of the crime;
that the sentence was necessary to deter others from committing the same crime; and that
defendant held a position of trust or supervision over a person who was under 18. Defendant
was sentenced to 24 years with IDOC for aggravated criminal sexual assault, to be followed
by a period of mandatory supervised release to be determined by the Prisoner Review Board
to be anywhere from three years to life. Defendant was sentenced to 15 years with IDOC for
criminal sexual assault, followed by two years of mandatory supervised release. Defendant
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No. 1-13-0657
was sentenced to three years with IDOC for unlawful restraint, followed by one year of
mandatory supervised release. All sentences were to run concurrently.
¶ 127 On February 21, 2013, defense filed and the trial court heard a motion to reconsider
sentence, which was denied. This timely appeal followed.
¶ 128 ANALYSIS
¶ 129 On appeal, defendant claims that: (1) he was denied the ability to present a complete
defense; (2) the trial court's prejudice denied him a fair trial; (3) prosecutorial misconduct
denied him a fair trial; (4) the trial court erred in allowing the State to rehabilitate witnesses
with prior consistent statements; (5) the trial court considered improper aggravating factors
during sentencing; (6) defendant's aggravated criminal sexual assault conviction is the result
of a double enhancement; and (7) the trial court erred in not vacating the conviction for
criminal sexual assault, as it resulted from the same act as the conviction for aggravated
criminal sexual assault.
¶ 130 For the following reasons, we find convincing only defendant's seventh claim, that
the aggravated criminal sexual assault and criminal sexual assault resulted from the same act,
and therefore vacate the conviction for criminal sexual assault. We affirm, and correct the
mittimus to reflect only convictions for aggravated criminal sexual assault and unlawful
restraint.
¶ 131 I. Presenting a Complete Defense
¶ 132 Defendant's first claim is that he was denied his constitutional right to present a
complete defense when the trial court: (1) prevented the uncle from presenting certain
impeachment testimony; (2) prohibited defense counsel from introducing the civil claim
during opening statement and prohibited defense counsel from cross-examining the minor
45
No. 1-13-0657
regarding the civil claim; (3) and "made interruptions" during defense's closing argument.
Defendant claims these rulings created cumulative prejudice.
¶ 133 "A criminal defendant is constitutionally guaranteed a meaningful opportunity to
present a complete defense." People v. Ramirez, 2012 IL App (1st) 093504, ¶ 43 (citing
Holmes v. South Carolina, 547 U.S. 319, 324 (2006)); U.S. Const., amends. VI, XIV; AND
Ill. Const. 1970, art. I, § 8). Defendant argues that, because a right to a complete defense is a
constitutional issue, his claim should be reviewed de novo. People v. Burns, 209 Ill. 2d 551,
560 (2004) ("The standard of review for determining whether an individual's constitutional
rights have been violated is de novo."). De novo consideration means we perform the same
analysis that a trial judge would perform. People v. Tolefree, 2011 IL App (1st) 100689, ¶ 25
(citing Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011)). However, when a
party claims he was denied his constitutional right to present a complete defense due to
improper evidentiary rulings, the standard of review is abuse of discretion. See People v.
McCullough, 2015 IL App (2d) 121364, ¶ 104.
¶ 134 "The admission of evidence is within the sound discretion of a trial court, and a
reviewing court will not reverse the trial court absent a showing of an abuse of that
discretion." People v. Becker, 239 Ill. 2d 215, 234 (2010). This standard applies to motions in
limine (People v. Harvey, 211 Ill. 2d 368, 392 (2004)) and the scope of cross-examination.
People v. Leak, 398 Ill. App. 3d 798, 822 (2010). "An abuse of discretion occurs when no
reasonable person would take the view adopted by the court." Trettenero v. Police Pension
Fund, 333 Ill. App. 3d 792, 801 (2002) (citing In re Marriage of Blunda, 299 Ill. App. 3d
855, 865 (1998)). Moreover, the trial court's ruling will not be overturned unless the abuse of
46
No. 1-13-0657
that discretion led to manifest prejudice against defendant. People v. Hudson, 157 Ill. 2d 401,
435 (1993).
¶ 135 A. Uncle's Impeachment Testimony
¶ 136 Defendant's first claim is that the court improperly barred the uncle's testimony that
he heard the minor tell his father that he did not want to lie anymore. Prior to the minor
taking the stand, the trial court instructed defense counsel that "if [the minor] is on the stand
*** ask him whether he told his uncle he didn't want to lie anymore, and if he denies it, then
the uncle can certainly say that's what [the minor] told me."Defense counsel never asked the
minor this question. Instead, defense counsel only asked the minor if he had engaged in any
conversations with his father in front of his uncle, which the minor denied. Later, when
defense counsel attempted to ask the uncle if he had heard the minor tell his father that he did
not want to lie anymore, the court sustained an objection that defense counsel failed to lay a
proper foundation for impeachment.
¶ 137 Before a witness can be impeached with a prior inconsistent statement, a proper
foundation must be laid. People v. Moore, 301 Ill. App. 3d 728, 732 (1998). "The foundation
is satisfied by presenting the place, circumstances and substance of the earlier statement to
the witness and giving her an opportunity to explain the inconsistency." Moore, 301 Ill. App.
3d at 732 (citing People v. Smith, 78 Ill. 2d 298, 304-05 (1980)). In the case at bar, the trial
court specifically told defense counsel that he could attempt to impeach the minor with the
uncle's testimony, if he first asked the minor whether he told his uncle he did not want to lie
anymore. If defense counsel had done so, he would have established a proper foundation by
presenting the substance of the earlier statement. Moore, 301 Ill. App. 3d at 732. The reason
47
No. 1-13-0657
for presenting the substance of the earlier statement to the witness is to "avoid unfair surprise
and to give the witness an opportunity to explain." Smith, 78 Ill. 2d at 304-05.
¶ 138 Defendant cites People v. Henry, 47 Ill. 2d 312 (1970), to support his position that,
because the minor denied ever having a conversation with his father in front of his uncle, his
denial was sufficient to lay the foundation for defense counsel's later introduction of the
uncle's impeaching testimony. In Henry, a witness was asked if she had given her testimony
against the defendant after receiving promises by the police. Henry, 47 Ill. 2d at 319. She was
then asked if she had engaged in any conversations with her aunt or the defendant's sister,
which she denied. Henry, 47 Ill. 2d at 319. When defense counsel later tried to introduce
statements from the witness' aunt and the defendant's sister, stating that the witness had told
them that police had told her she would be held in prison unless she gave a statement, the
trial court ruled that the witness had not been questioned about her prior statement and a
foundation had not been laid. Henry, 47 Ill. 2d at 320. Our supreme court reversed, holding
that, under the circumstances of the case, a proper foundation had been laid, because there
would not be unfair surprise and it would have been natural for the witness to have explained
the police coercion in her testimony. Henry, 47 Ill. 2d at 321-22.
¶ 139 Importantly, however, our supreme court later distinguished the Henry decision in
People v. Smith, 78 Ill. 2d 298 (1980). In Smith, a State's witness, Dickerson, was asked if he
ever had a conversation with an inmate, Wicks, about the defendant's case, to which
Dickerson replied in the negative. Smith, 78 Ill. 2d at 304. Defense counsel then tried to
impeach Dickerson by having Wicks testify that Dickerson had a conversation with him in
which Dickerson referred to receiving a deal for his testimony. Smith, 78 Ill. 2d at 304. The
trial court did not allow Wicks to testify about the conversation. Smith, 78 Ill. 2d at 304. Our
48
No. 1-13-0657
supreme court upheld the trial court's decision, noting that the case was different than Henry
because:
"Henry, however, is distinguishable in that, there, the foundation requirements were
substantially satisfied. The witness was asked whether she had had a prior
conversation with the impeacher specifically regarding the statement she had given to
the police during their investigation of the subject crime. The purposes of the
foundation requirement were satisfied, for the witness was alerted to the substance of
the remark and to the identity of the person to whom it was allegedly made. The
element of unfair surprise was eliminated. Since, in this case, defense counsel only
asked Dickerson generally if, while at the county jail, he had spoken to Wicks about
the defendant's case, the foundation requirement was not met." Smith, 78 Ill. 2d at
305.
¶ 140 The case at bar is indistinguishable from Smith. Whereas in Henry, the witness was
specifically asked if she had been given any sort of consideration by the police before being
asked if she had a conversation with her aunt or the defendant's sister, in the case at bar, there
were no questions that would have given the minor any notice that his uncle would later
testify that the minor told his father he did not want to lie anymore. Rather, defense counsel
asked the minor only if he had any conversations with his father in front of his uncle. As
such, we cannot find that the trial court abused its discretion when it did not allow the uncle's
impeachment testimony that he had heard the minor tell his father that he no longer wanted to
lie. Becker, 239 Ill. 2d at 234. In addition, in defendant's previous offer of proof, the uncle
was unable to recall when the alleged conversation occurred.
49
No. 1-13-0657
¶ 141 Defendant next claims that the trial court erred by excluding the uncle's testimony
that he heard the father pressure the minor to "continue in his allegations against defendant."
¶ 142 We begin by noting that, contrary to defendant's claims in his brief, when defense
counsel filed his written offer of proof regarding defendant's testimony and presented his
argument to the trial court that the uncle's testimony was not hearsay, the court did not
simply respond "No." Actually, the conversation progressed:
"DEFENSE COUNSEL: If it was [the minor] and somebody else, if the uncle
hears—if the uncle hears people giving directions to [the minor] or influencing [the
minor's] testimony or influences [the minor's] story then that would be admissible for
the effect on [the minor]. In other words, if—
THE COURT: No. Go ahead.
DEFENSE COUNSEL: If his father is telling him, [minor], I need you to lie, then
I can ask [the minor] about it."
¶ 143 It is clear from this conversation that the trial court actually said "No. Go ahead." and
then allowed defense counsel to continue his argument.
¶ 144 It is also not clear that the trial court completely excluded uncle's testimony that he
heard the father pressure the minor to continue his allegations against defendant. Defendant
points to the following sidebar:
"THE COURT: You want to ask the victim if his father made him bring these
allegations?
DEFENSE COUNSEL: I want to ask an alleged witness whether anyone's
influencing him. I want to ask—that's what I want to ask. I want to ask a witness
50
No. 1-13-0657
whether or not anybody's encouraging him in any way. It is the wheelhouse of cross
examination.
THE STATE: Well, there's also the wheelhouse of rules of law and relevancy,
Judge, and good faith basis to ask questions and that has not been shown.
THE COURT: Counsel, you still have not made an offer of proof to this Court as
to what the father is going to say, so if you say to [the minor] you're testifying to what
happened because your father made you and he says no, are you then calling the
father to say I made you say those? How are you going to prove it up if he denies it?
DEFENSE COUNSEL: I'm going to call the father.
THE COURT: Then make your offer of proof. You told me this morning you
haven't talked to him, so make your offer of proof of what the dad's going to say
without having talked to him.
***
THE COURT: Well, then, counsel, you cannot ask a question of one witness
premised on the fact that you are going to prove it up with someone you haven't
spoken to that may or may not testify. That is not a good faith basis for asking a
question.
***
THE COURT: When did the conversation take place?
DEFENSE COUNSEL: I've been pushing [the uncle] on that. He believes—he
says-
51
No. 1-13-0657
THE COURT: Because there has to be foundation. I mean, the first level is
foundation is if you can't give the who, what, where, when, then you don't have the
foundation to ask the question.
DEFENSE COUNSEL: *** [The uncle] does not recall the specific date of the
incident and I think that is grounds for cross examination.
THE COURT: Was it before or after charges were filed?
DEFENSE COUNSEL: After.
THE COURT: So he'd already spoken to the police and he'd already been
charged? Then how is he being pressured to make false allegations? The claim had
already been made. You're talking about making pressures for the civil matter?
DEFENSE COUNSEL: No, I’m talking about—
THE COURT: Well, counsel, if he's already spoken to the police, the charges
have already been filed. How is he being pressured to file charges that have already
been filed?
DEFENSE COUNSEL: He's been being pressured to continue with the charges,
Judge, and I hope—
THE COURT: That's not what you told me when we started at debate, counsel.
You started this by saying he was pressured to make these claims. Now you're telling
me these conversations were after the charges were already filed? The objection is
sustained."
¶ 145 During the sidebar, three possible reasons for sustaining the State's objection were
discussed: (1) defense counsel had not offered proof that the father would acknowledge this
conversation; (2) defense counsel could not lay a foundation for this conversation; and (3)
52
No. 1-13-0657
because the conversation occurred after the claims were made, it was not relevant. It is not
clear from the record which of these reasons were relied on by the trial court to sustain the
objection. However, the trial court merely prevented defense counsel from questioning the
minor about this conversation, and had not made a clear ruling that would have prevented
defense counsel from introducing the testimony through the father, if defense counsel had
laid a proper foundation.
¶ 146 Regardless of what reason the trial court used to sustain the objection, this issue is
forfeited for review. Defense counsel did not provide an offer of proof to the trial court of
what the father would testify, never laid a foundation of when this conversation occurred, and
defense counsel's offer of proof regarding the uncle's testimony did not state that the uncle
heard the father pressure the minor to "continue with the charges," either before or after the
charges were brought. At most, on this issue, the offer of proof regarding the uncle stated:
"Throughout his stay with his family, [the uncle] observed [the father] berate and yell at [the
minor] repeatedly and that in [the uncle's] lay opinion, [the father] plays 'mind games' with
[the minor]."
¶ 147 "It is well recognized that the key to saving for review an error in the exclusion of
evidence is an adequate offer of proof in the trial court." People v. Andrews, 146 Ill. 2d 413,
420-21 (1992). "The purpose of an offer of proof is to disclose to the trial judge and opposing
counsel the nature of the offered evidence and to enable a reviewing court to determine
whether exclusion of the evidence was proper." Andrews, 146 Ill. 2d at 421. The failure to
make an adequate offer of proof results in a waiver of the issue on appeal. Andrews, 146 Ill.
2d at 421. "[I]n making the offer of proof, counsel must explicitly state what the excluded
53
No. 1-13-0657
testimony would reveal and may not merely allude to what might be divulged by the
testimony." Andrews, 146 Ill. 2d at 421.
¶ 148 Because defense counsel did not make an offer of proof stating that the uncle would
testify that he heard the father pressure the minor to continue with his claims, either before or
after the charges were made, we cannot determine whether exclusion of the evidence was
proper. Andrews, 146 Ill. 2d at 421. Thus, defendant has waived the issue on appeal.
Andrews, 146 Ill. 2d at 421.
¶ 149 B. Opening Statement and Cross-Examination of the Civil Claim
¶ 150 Defendant next claims that the trial court erred by restricting his presentation of
evidence regarding the civil claim to the jury. Specifically, defendant claims that the court
barred defense counsel from mentioning it during opening statements and then by preventing
defense counsel from cross-examining the minor regarding the civil claim. We review the
trial court's decision regarding the admission of this evidence for abuse of discretion. Becker,
239 Ill. 2d at 234.
¶ 151 First, defendant claims that the trial court erred by barring defense counsel from
referring to the civil case arising from the Lake County assault in his opening statements.
Specifically, in responding to the State's motion in limine, the trial court stated:
"THE COURT: What I suggest, counsel, we're going to get to opening statements.
Be careful what you argue in terms of that lawsuit. I will certainly allow you to brief
this for this court and I will reconsider but at this time you may not reference that
settlement between the company and the victim's family for an offense that did not
occur [in this case] and that's not the subject of this case.
***
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No. 1-13-0657
THE COURT: Counsel, until you cite me some cases that you give me or
something to show why it's coming in, you may not reference a settlement in an
unrelated case."
¶ 152 At this point in the trial, the court had not been presented any evidence regarding who
had brought the civil case, or even that there was a civil case. On appeal, defendant has cited
no case law showing that a trial court abuses its discretion when it bars reference in opening
statements to a civil case stemming from a separate criminal case when, at that time, no
evidence had been provided that a civil case had occurred, that the civil case was brought by
the minor or his family, or that it was legally permissible to reference a civil case that was the
result of a separate and distinct criminal case.
¶ 153 "The scope and latitude of the opening statement are within the trial court's
discretion." People v. Rader, 178 Ill. App. 3d 453, 462 (1988). The trial court is tasked with
determining if evidence is relevant and admissible. See People v. Lynn, 388 Ill. App. 3d 272,
280 (2009). In the case at bar, the trial court did not exclude all evidence of the civil case.
Rather, it prevented discussion of the civil case during opening statements, until evidence of
it could be presented to the trial court and the trial court could make a determination as to the
evidence's relevance and admissibility. We cannot find that the trial court abused its
discretion by requiring defendant to present the trial court with evidence before determining
if the evidence was relevant and admissible. Becker, 239 Ill. 2d at 234.
¶ 154 Defendant next claims that the trial court erred by not allowing defense counsel to
cross-examine the minor about the civil claim. However, the evidence presented regarding
the civil claim stated only that the minor's parents had hired a law firm to represent the
minor. Supra ¶ 23. Further, the record reflects that a monetary demand was made by the law
55
No. 1-13-0657
firm and then the claim was settled with defendant's employer. There is no evidence that
minor was involved in this settlement, or that he was aware of it. Our supreme court has
found it improper for counsel to ask witnesses questions for the purpose of impeachment
unless counsel is prepared to offer proof of the impeaching information. See Hudson, 157 Ill.
2d at 435; see also People v. Olinger, 112 Ill. 2d 324, 341 (1986). Moreover, the evidence
used to impeach a witness must not be " 'remote or uncertain.' " People v. Sims, 192 Ill. 2d
592, 625 (2000) (quoting People v. Triplett, 108 Ill. 2d 463, 476 (1985)). In the case at bar,
there was no evidence that the minor was a party to a lawsuit, or that he was aware of the
settlement. Therefore, the trial court did not abuse its discretion by preventing defense
counsel from cross-examining the minor in regard to the civil case. Becker, 239 Ill. 2d at 234.
¶ 155 Even if the trial court had abused its discretion, which we are not prepared to say,
defense counsel was allowed to question both the father and mother extensively regarding the
civil case. "As a reviewing court, we are not required to isolate the particular limitation on
cross-examination to determine whether reversible error has occurred." People v. Harris, 123
Ill. 2d 113, 145 (1988). "[I]f a review of the entire record reveals that the jury has been made
aware of adequate factors concerning relevant areas of impeachment of a witness, no
constitutional question arises merely because the defendant has been prohibited on cross-
examination from pursuing other areas of inquiry." Harris, 123 Ill. 2d at 145. Through cross-
examination of both the father and the mother, the jury was made aware of the defense's
theory that defendant was framed for a monetary settlement; thus, the exclusion of the civil
case during opening arguments and cross-examination of the minor were not manifestly
prejudicial. Hudson, 157 Ill. 2d at 435; Harris, 123 Ill. 2d at 145. In addition, we cannot say
56
No. 1-13-0657
that the trial court abused its discretion in ultimately determining that a civil settlement in the
Lake County case was not relevant to the case in Cook County. Becker, 239 Ill. 2d at 234.
¶ 156 C. Defendant's Closing Arguments
¶ 157 Defendant next claims that the court "made repeated interruptions, improper rulings
and comments" during defendant's closing argument. Defendant acknowledges that he did
not object at trial and did not include this issue in his posttrial motion for a new trial.
However, "the application of the waiver rule is relaxed when the trial judge's conduct would
have been the basis of the objection." People v. Crawford, 343 Ill. App. 3d 1050, 1055
(2003). This is "[b]ecause of the fundamental importance of a fair trial and the practical
difficulties in objecting to the conduct of the trial court." People v. Westfield, 207 Ill. App. 3d
772, 778 (1990). "In order for the comments by a judge to constitute reversible error, the
defendant must show that the remarks were prejudicial and that he was harmed by them."
Westfield, 207 Ill. App. 3d at 778.
¶ 158 "In general, wide latitude is afforded counsel in closing argument." Crawford, 343 Ill.
App. 3d at 1058 (citing People v. Carter, 177 Ill. App. 3d 593, 601 (1988)). "Argument and
statements that are based upon the facts in evidence, or upon reasonable inferences drawn
therefrom, are within the scope of proper closing argument." Crawford, 343 Ill. App. 3d at
1058-59 (citing People v. Brown, 275 Ill. App. 3d 1105, 1114 (1995), and People v.
Simmons, 331 Ill. App. 3d 416, 421 (2002)).
¶ 159 Contrary to defendant's claim, the trial court never once interrupted defendant's
closing arguments. Rather, the comments made by the court were directly in response to
objections from the State.
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No. 1-13-0657
¶ 160 Also, contrary to defendant's claims, the trial court did not cut off defendant's closing
statements early. Instead, the record reflects that, when the trial court gave defense counsel a
warning that he was almost out of time, he was already 10 minutes over his allotted time.
Supra ¶ 122. It is within the trial court's discretion to set and enforce reasonable time limits
for closing arguments. People v. Trolia, 107 Ill. App. 3d 487, 502 (1982).
¶ 161 The record also reveals that the court did not improperly address defense counsel or
the jury during closing arguments. A number of times, the State objected when defense
counsel attempted to argue facts that were outside either the evidence or a reasonable
inference from it. Crawford, 343 Ill. App. 3d at 1058-59. The following is an example of the
exchanges that occurred during defense's closing argument:
"DEFENSE COUNSEL: Common sense says that the time frame doesn’t work.
*** [T]ake a look at the shirt. This shirt was absolutely positively not worn by [the
minor]—
THE STATE: Objection. That's not the evidence.
DEFENSE COUNSEL: Judge—
THE COURT: Counsel, I will once again advise you to argue the evidence before
the jury and reasonable inferences from the evidence.
***
DEFENSE COUNSEL: *** You'll get to feel this T-shirt. It's not stretched at all.
It's right out of the bag.
THE STATE: Objection, Judge. That's not the evidence, that it came out of the
bag.
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THE COURT: Once again, ladies and gentlemen, if a lawyer makes a statement
that is not based on the evidence or reasonable inferences to be drawn from the
evidence, you should disregard that statement.
Counsel, you may continue.
***
DEFENSE COUNSEL: *** [Defendant] masturbated into a fresh shirt that's his,
and then he threw it in his laundry or threw it on the ground. *** But if somebody
sees—if people like [the father], see a wadded up shirt, kind of sticking together, it's
clear what it is. That's how this happened.
THE STATE: Objection, Judge.
THE COURT: One [sic] again, ladies and gentlemen, if a lawyer makes a
statement that is not based on the evidence or reasonable inferences to be drawn from
the evidence you should disregard that statement."
¶ 162 There was no evidence presented at trial that showed, or could lead to a reasonable
inference, that the shirt was never worn before ejaculate was stained on to it. It was thus not
an abuse of discretion for the judge to sustain an objection and then inform the jury that "if a
lawyer makes a statement that is not based on the evidence that you have heard or reasonable
inferences from the evidence, you should disregard that statement." See Crawford, 343 Ill.
App. 3d at 1058-59.
¶ 163 Defendant also objects to the trial court's sustaining the State's objection to defense
counsel's comment that "if people like [the father], see a wadded up shirt, kind of sticking
together, it's clear what it is." Defendant argues that, because defendant testified that he
masturbated into a shirt, and because the uncle testified that he overheard the father state that
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No. 1-13-0657
he planted the shirt, there was adequate evidence to support counsel's statement. However,
the fact that defendant testified that he once masturbated into a shirt does not allow a
reasonable inference as to the father's knowledge of what semen-stained clothes look like.
The uncle did testify that he overheard the father state that he planted the T-shirt, but the
uncle did not testify that he overheard the father state that he procured the T-shirt, nor did the
uncle testify as to the accuracy of the father's sight. Thus, there was no evidence to show or
to make a reasonable inference that the father was the sort of person who would easily
identify a stained shirt as having been stained with semen. Crawford, 343 Ill. App. 3d at
1058-59.
¶ 164 D. Cumulative-Error Prejudice
¶ 165 Defendant further claims that when all of these claims are examined together, they
constitute cumulative error resulting in prejudice that denied defendant his constitutionally
protected right to present a complete defense. Ramirez, 2012 IL App (1st) 093504, ¶ 43.
However, because we were not persuaded by any of defendant's claims, we need not consider
if they cumulatively led to prejudice. See, e.g., People v. Perry, 224 Ill. 2d 312, 356 (2007)
(in rejecting each of defendant's claims, cumulative error analysis was not necessary).
¶ 166 II. Right to a Fair Trial
¶ 167 Defendant's next claim is that the trial court showed hostility towards the defense
throughout the trial and, in doing so, denied defendant his right to a fair trial. Defendant
claims that this hostility was apparent because the trial court made inappropriate comments
in front of the jury, and made inconsistent rulings that restricted the defense.
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No. 1-13-0657
¶ 168 A. Judge's Comments
¶ 169 Defendant claims that the trial court's comments to the jury created prejudice and
deprived him of a fair trial.
¶ 170 "A trial judge has a duty to see that all persons are provided a fair trial." Sims, 192
Ill. 2d at 636 (citing People v. Burrows, 148 Ill. 2d 196, 250 (1992)). "Accordingly, a trial
judge must refrain from interjecting opinions, comments or insinuations reflecting bias
toward or against any party." Sims, 192 Ill. 2d at 636 (citing People v. Garrett, 276 Ill. App.
3d 702, 712 (1995)). "Judicial comments can amount to reversible error if the defendant can
establish that such comments were " ' "a material factor in the conviction or were such that an
effect on the jury's verdict was the probable result." ' " Sims, 192 Ill. 2d at 636 (quoting
Burrows, 148 Ill. 2d at 250, quoting Harris, 123 Ill. 2d at 137).
¶ 171 Defendant claims the trial court objected to defense counsel's statements sua sponte.
It does not appear from the record that this occurred. Each "sua sponte" objection defendant
identifies in his brief was edited to remove both the "sustained" before the comment and the
response from the State. For example, defendant's brief claimed the judge sua sponte
objected to one of defense counsel's questions by stating, "that's not what his testimony was
counsel." Actually, the complete exchange was:
"DEFENSE COUNSEL: Did you tell Detective Kondrat that he pulled up your
shirt and touched your stomach in his office?
MINOR: No.
THE COURT: Sustained. That's not what his testimony was, counsel.
THE STATE: Thank you, Judge."
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¶ 172 When the full exchange is quoted, the judge appears to be responding to the State
which was in the process of making an objection. The trial court's "sustained" appears to be a
reaction to an action by the prosecutor, who then stated "Thank you." The trial court should
not have "jumped the gun" and should have waited for the state's objection, and thus the trial
court's comment and ruling was improper. However, this was an isolated instance and
certainly not a material factor in defendant's conviction where the evidence was
overwhelming. Sims, 192 Ill. 2d at 636.
¶ 173 Defendant does not cite case law in which a trial judge made comments similar to the
judge in the case at bar and was found to be hostile. Instead, defendant exhaustively lists
comments by the trial judge, often selectively edited. Defendant points to comments from the
court such as: (1) "He answered it on cross already. This is beyond the scope of redirect. I did
allow you some leeway. Ask your next question."; (2) "Counsel, he just testified he's never
spent the night at [defendant's] house. You can go through any date you want, if he's never
spent the night there, he's never spent the night there. Sustained."; (3) "Sustained as to the
form of the question. That's improper. Ask a proper question"; and (4) "Sustained; not the
testimony." When these comments are placed in context, they do not appear hostile. Nor
were the judge's comments during voir dire of such caliber that they would prejudice the jury
against defendant before trial began. For instance, "it is not for you to comment, sir" is not
overtly hostile.
¶ 174 This is not a case such as People v. Crawford, 343 Ill. App. 3d 1050 (2003), where
the trial court accused defense counsel of lying. Crawford, 343 Ill. App. 3d at 1058. Nor is
this a case such as People v. Eckert, 194 Ill. App. 3d 667 (1990), where the trial court
coupled its comments with a refusal to allow defense counsel to tender an offer of proof.
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Eckert, 194 Ill. App. 3d at 670. Rather, this case is far closer to People v. Garrett, 276 Ill.
App. 3d 702 (1995), where the court made the comments " '[i]f you're going to prove it, fine.
I will let you ask that question. If you aren't, you're not going to infer it' " and " '[h]e didn't
say he was a gang leader, you said he said was (sic) a gang leader.' " Garrett, 276 Ill. App. 3d
at 712. Just as in Garrett, the trial judge in this case "was attempting to control the trial rather
than disparage defense counsel. Each of the comments had a valid basis and did not display a
specific bias or prejudice against defense counsel." Garrett, 276 Ill. App. 3d at 713. Even if
some of the trial judge's comments, particularly during sidebars, demonstrated frustration
with defense counsel, that does not inherently mean that the judge was displaying bias. See,
e.g., People v. Nevitt, 135 Ill. 2d 423, 457 (1990). The trial court's comments in front of the
jury do not here rise to the level of bias or prejudice. Sims, 192 Ill. 2d at 636.
¶ 175 Defendant also claims that the trial court's hostile comments prevented the jury from
learning defendant's cellmate Abruscato's motive for testifying, as well as where the minor
was currently living, which defendant claims would have helped prove the father's influence
over the minor. In regard to the minor testifying about where he currently lived, the cross-
examination would have been repetitive because one of the first questions the State asked the
minor was who he currently lived with, and the minor testified that he was living with his
father. When the father took the stand, he also testified that the minor was currently living
with him. Therefore, evidence of the minor's current residence was fully before the jury. The
same is true in regard to cellmate Abruscato's testimony. Defense counsel questioned
Abruscato, Abruscato's lawyer, and the Lake County ASA extensively regarding: (1)
Abruscato's previous charges, (2) the timeline regarding when those charges were brought
and when they were reduced, and (3) whether Abruscato received consideration for
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No. 1-13-0657
testifying. None of the trial court's comments during this testimony were overtly hostile.
Moreover, because the jury heard this evidence multiple times, the judge's comments could
not have been a material factor in the jury's verdict. Sims, 192 Ill. 2d at 636.
¶ 176 B. Judge's Rulings
¶ 177 Defendant did not include any of the rulings discussed below in his posttrial motion
for a new trial and judgment notwithstanding the verdict. However, defendant urges us to
review the allegedly inconsistent rulings under the plain-error doctrine.
¶ 178 If a defendant fails to object in a timely manner at trial or fails to object in a posttrial
motion, a reviewing court will generally review the defendant's claim only for plain error.
People v. Piatkowski, 225 Ill. 2d 551, 564 (2007). The plain-error doctrine "allows a
reviewing court to consider unpreserved error when (1) a clear or obvious error occurred and
the evidence is so closely balanced that the error alone threatened to tip the scales of justice
against the defendant, regardless of the seriousness of the error, or (2) a clear or obvious error
occurred and that error is so serious that it affected the fairness of the defendant's trial and
challenged the integrity of the judicial process, regardless of the closeness of the
evidence." Piatkowski, 225 Ill. 2d at 565 (citing People v. Herron, 215 Ill. 2d 167, 186-87
(2005)).
¶ 179 Under the first prong, the defendant must show that the evidence at trial was so
closely balanced that the error alone "threatened to tip the scales of justice against
him." Herron, 215 Ill. 2d at 187. Under the second prong, the defendant must prove that the
error was so serious that it affected the fairness of the trial and questions the integrity of the
judicial process. Herron, 215 Ill. 2d at 187. " 'In both instances, the burden of persuasion
remains with the defendant.' " Piatkowski, 225 Ill. 2d at 565 (quoting Herron, 215 Ill. 2d at
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 No. 1-13-0657
187). However, before considering plain error, we must first determine whether any error
occurred at all. Piatkowski, 225 Ill. 2d at 565 (in order to claim plain error, defendant must
show "first" that an error occurred).
¶ 180 "Illinois courts have long upheld the right of an accused to a fair and impartial trial by
jury, 'free from influence or intimation by the trial court.' " People v. Mitchell, 228 Ill. App.
3d 167, 169 (1992) (quoting People v. Sprinkle, 27 Ill. 2d 398, 402 (1963)); see also People
v. Santucci, 24 Ill. 2d 93, 98 (1962). "Our supreme court has cautioned that jurors are 'ever
watchful of the attitude of the trial judge' and noted that the judge's lightest word 'may prove
controlling.' " Mitchell, 228 Ill. App. 3d at 169 (quoting People v. Marino, 414 Ill. 445, 450-
51 (1953)). "Moreover, the appellate court has held that a conviction tainted with such
judicial error must be reversed 'to protect and preserve the integrity and reputation of the
judicial process.' " Mitchell, 228 Ill. App. 3d at 169 (quoting People v. Kelley, 113 Ill. App.
3d 761, 767 (1983)).
¶ 181 Defendant first claims that the trial court erred when, before opening statements, it
held that defense counsel could not refer to the civil claim, and when, later in discussion of
defense's motion for mistrial, stated that it only "advised" against mentioning the claim.
Supra ¶¶ 16, 43. Defendant also claims that, during this same discussion, the trial court
claimed that defense counsel was showing it a different demand letter from the law firm
regarding the monetary demand on defendant's workplace, although it was the same letter
that defense counsel had submitted previously. Supra ¶ 41. We already ruled that the trial
court did not abuse its discretion when it barred defense counsel from referring to the civil
claim in opening statements and when it barred defense counsel from cross-examining the
minor in regards to the civil claim. Supra ¶¶ 152-53.
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No. 1-13-0657
¶ 182 Moreover, defendant is not claiming that the trial court denied the defense's motion
for a mistrial based on its imperfect recollection of previous conversations. Indeed, the trial
court denied the motion for mistrial for a number of reasons completely separate from the
two comments mentioned by defendant, including defense counsel not yet presenting the
court with case law that the civil case should be admitted and the need to prevent defendant
from being prejudiced by someone at defendant's workplace testifying that they settled the
civil claim because they believed the evidence against defendant. Rather, defendant is
claiming that the very fact that the trial court did not recall previous conversations entirely
accurately amounts to an inconsistent ruling. However, defendant does not cite any case law
that finds that a judge making a statement reflecting a less-than-perfect memory amounts to
reversible error. We also note that this conversation took place outside the hearing of the
jury, so there was no chance that jurors might be swayed by the judge's inconsistent
recollection. Mitchell, 228 Ill. App. 3d at 169.
¶ 183 Defendant next claims that the judge made an inconsistent ruling by telling defense
counsel during a sidebar that he could ask the mother if she had conversations with defendant
regarding the " 'sewer license,' " although the judge did warn defense counsel that the
question seemed to be veering towards the edge of irrelevancy. Supra ¶ 89. When defense
counsel attempted to ask the mother about the sewer license, the State objected, claiming that
the answer would be hearsay. Supra ¶ 90. The judge asked defense counsel what his response
was to the hearsay objection, and defense counsel responded "It's statements that she—it's
statements—it's information that she is giving [defendant.] She is not an out-of-court
declarant. It's not being offered for the truth of the matter asserted. It's being offered for the
effect on [defendant] and for the information—" The judge then sustained the objections.
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No. 1-13-0657
Defendant claims that this is an inconsistent ruling, as the judge had given defense counsel
permission to ask the question, and was therefore "sandbagging" defense counsel with the
intent of making him look foolish. Notably, defendant does not claim on appeal that the trial
court erred in finding the testimony hearsay, simply that the court erred in allowing defense
counsel to ask the question and then sustaining the State's objection.
¶ 184 The judge told defense counsel that he could ask the question outside the hearing of
the jury, so the only thing the jury heard was defense counsel ask a question and the court
sustain an objection. The judge sustained numerous objections for both sides during the trial,
so it is unreasonable to think that the judge sustaining this particular objection would have
swayed the jury. Mitchell, 228 Ill. App. 3d at 169. As defendant was not prejudiced because
the jury did not hear the judge's previous comment, this is essentially an evidentiary question
that will not be overturned unless the judge abused her discretion and it results in manifest
prejudice. Hudson, 157 Ill. 2d at 435. Defense counsel was allowed to ask the mother
numerous questions relating to conversations with defendant about the business as well as
whether she helped defendant prepare for or obtain the needed licenses. If the jury heard that
the mother helped defendant prepare to obtain the licenses, the fact that the mother was not
allowed to testify that she also had conversations with defendant regarding the licenses
would not rise to the level of manifest prejudice. Hudson, 157 Ill. 2d at 435.
¶ 185 Defendant next claims that the court made an inconsistent ruling regarding defense
counsel's use of a whiteboard during closing arguments. The judge told defense counsel he
could use a whiteboard during closing arguments, but would not be allowed to use it to
present evidence. Supra ¶ 120. The State objected during defense counsel's closing
arguments because he appeared to be using the board to present evidence. Supra ¶ 120. The
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No. 1-13-0657
court held a sidebar to ensure that defense counsel was using the board in keeping with the
court's previous ruling. Once defense counsel explained how he was using the board, the
judge allowed him to continue to use the board. Supra ¶ 120. Defense counsel was given over
10 minutes of extra time during his closing arguments, so he was not negatively impeded by
the time it took to have a sidebar. We do not find that the judge acted inconsistently in any
manner through this exchange.
¶ 186 Defendant next claims that the court made inconsistent rulings regarding the T-shirt.
During one sidebar, defense counsel said " 'At this point, that's a brand new T-shirt.' " The
judge responded " 'you could argue that but that's not what the evidence is.' " Supra ¶ 82.
During closing arguments, defense counsel attempted to tell the jury that the shirt was "right
out of the bag." The State objected, and the court sustained the objection, finding that it was
not in keeping with the evidence. This comment was in the middle of trial, indicating that
defense counsel could still attempt to introduce evidence regarding the T-shirt, and the judge
also told defense counsel that, as of that moment, "that's not what the evidence is." Defense
counsel could not have been surprised when he was reminded during closing arguments that
he could only argue the evidence presented and reasonable inferences from that evidence.
Crawford, 343 Ill. App. 3d at 1058-59.
¶ 187 Defendant's next claim is that the trial court sustained objections by the State and
then, once defense counsel asked for a sidebar, asked the State "[y]our objection, State?" and
"[w]hat's your objection?" These comments were part of the following exchanges:
"DEFENSE COUNSEL: Okay. And did [the father] ever come back in the next
few days to make any purchases?
THE STATE: Objection.
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No. 1-13-0657
THE COURT: Sustained.
DEFENSE COUNSEL: Judge, I think that's relevant.
THE COURT: Sustained.
DEFENSE COUNSEL: Okay. When was the next time you saw [the father]?
THE STATE: Objection.
THE COURT: Sustained.
DEFENSE: Judge, I don't—I didn't—Judge, may I have a sidebar?
THE COURT: Sure. ***
(The following proceedings were had in open court out of the hearing of the jury.)
THE COURT: Your objection, State?
THE STATE: What is the relevance of [the father], who he says he has somewhat
of an ongoing business relation, coming in afterwards and not with the strange
fellow?
THE COURT: Counsel, all that is before this jury is that [the father] came in with
a male with a suit and tie. He was only able to identify this man sitting in court as the
man you showed him a picture of. You indicated you were calling him for the
purpose of establishing that they purchased equipment on that date—
DEFENSE COUNSEL: They tried to.
THE COURT:—and that's not what he said.
***
[The following proceedings were had in open court in the presence of the jury]
DEFENSE COUNSEL: Why did you put just your name on the application?
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No. 1-13-0657
THE STATE: Objection.
THE COURT: Sustained.
DEFENSE COUNSEL: Judge, he was asked that.
THE STATE: I never asked him that question, Judge.
THE COURT: Brief Sidebar. Excuse us, ladies and gentlemen.
(Proceedings held at sidebar, outside the presence of the jury.)
THE COURT: What's your objection?
THE STATE: Objection is why he did so. He was asked isn't it true yours was the
only name on there. Now all of a sudden why.
THE COURT: Counsel, are you seeking to elicit?
DEFENSE COUNSEL: I think I can clear that up. [The State] went through why
[the father's] name isn't on anything, why was this a sole proprietorship."
¶ 188 We need not address this as an inconsistent ruling, because defendant has selectively
edited the record. When taken in context, it does not appear from the record that the judge is
asking these questions because the judge is unsure of what the objection was, but rather to
give the State a chance to fully explain its objection. It is notable that the judge then allowed
defense counsel to respond. There is nothing inconsistent with allowing both sides to explain
their positions when defense counsel asks for a sidebar.
¶ 189 Defendant's next claim is that the court was inconsistent because it required defense
counsel to make offers of proof, but did not require the State to do the same. "A detailed and
specific offer of proof is necessary when it is not clear what the witness' testimony will be or
his basis for so testifying." People v. Cobb, 186 Ill. App. 3d 898, 905 (1989) (citing People v.
Robinson, 56 Ill. App. 3d 832, 837 (1977)). In the case at bar, it was very clear why the
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No. 1-13-0657
State's witnesses were being called: they were all either a victim of the crime, investigators of
the crime, or had direct conversations with defendant regarding the crime. In comparison,
defense counsel wanted to call the uncle, who at the outset appeared to have only heard a
conversation between two people from a different room, and a number of people such as
bankers or employees of sewage equipment stores. It appeared that much of this testimony
would either be hearsay or irrelevant, so it was not error for the trial court to ask for more
information or offers of proof because it was "not clear what the witness' testimony [would]
be or his basis for so testifying." Cobb, 186 Ill. App. 3d at 905.
¶ 190 Lastly, defendant claims that the trial court erred by not instructing the jury that
defendant did nothing wrong by having the police reports in his cell, and the court responded
" 'No. In doing so, I'm going to be hiding the fact that you did.' " Supra ¶ 108. The court did
not err because it then walked defense counsel through several questions to ask defendant to
make sure the jury was allowed to hear that defendant was unaware that his possession of the
reports violated a rule and that defendant had not elicited defense counsel to giving him the
reports. Defense counsel's objective in asking the court to instruct the jury was satisfied with
this line of questioning.
¶ 191 For the reasons stated above, we do not find that the trial court made errors in its
rulings. As such, we do not find that a plain-error analysis is warranted. Piatkowski, 225 Ill.
2d at 565.
¶ 192 III. Prosecutorial Misconduct
¶ 193 Defendant next claims that he was denied a fair trial due to a pervasive pattern of
prosecutorial misconduct. Specifically, he claims that the prosecutor denied defendant a fair
trial by: (1) accusing defendant of committing other crimes; (2) asking defendant to comment
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No. 1-13-0657
on the credibility and testimony of other witnesses; (3) making improper testifying objections
during trial; (4) distorting the burden of proof during rebuttal closing argument; and (5)
cumulative error. Defendant agrees that these issues were not preserved by being included in
the posttrial motion for a new trial, but urges us to review them for plain error. Piatkowski,
225 Ill. 2d at 564. Again, before we can perform plain-error analysis, we must first determine
whether any error occurred at all. Piatkowski, 225 Ill. 2d at 565.
¶ 194 Prosecutorial misconduct can deprive a defendant of his right to a fair, orderly, and
impartial trial. People v. Johnson, 208 Ill. 2d 53, 60 (2003). "[A] pattern of intentional
prosecutorial misconduct may so seriously undermine the integrity of judicial proceedings as
to support reversal under the plain-error doctrine." Johnson, 208 Ill. 2d at 64.
¶ 195 A. Accusing Defendant of Other Crimes
¶ 196 Defendant first claims that the prosecutor erred by accusing defendant of breaking the
law by possessing police reports in his cell and by committing fraud by applying for a
business license as a sole proprietor with the intent to run the business as a partnership. These
claims are considered in regard to the proper scope of cross-examination. As a result, we will
only reverse if the trial court abused its discretion by allowing the prosecutor to ask these
questions. Becker, 239 Ill. 2d at 234.
¶ 197 It is not erroneous to ask a witness about a crime that is supported by the record and
relevant to the case. See, e.g., People v. Howell, 358 Ill. App. 3d 512, 523 (2005) (prosecutor
commenting about a battery committed by defendant, that was not the crime being tried,
during closing arguments, was not error when relevant to the case and supported by the
record); see also People v. Hobbs, 232 Ill. App. 3d 63, 71 (1992) ("While it is improper for a
prosecutor to proffer evidence of other crimes than the one for which defendant is charged, a
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No. 1-13-0657
prosecutor can argue any logical inferences that can be drawn from the evidence."). Notably
in this case, the prosecutor did not introduce the evidence of defendant committing other
crimes, defense counsel did. Defense counsel attempted to support his theory that Abruscato
was conspiring with Abruscato's attorney and the Lake County ASA to frame defendant by
having defendant testify that Abruscato learned about defendant's case because defendant had
police reports in his jail cell. It was error for the State to ask questions inquiring if defendant
knew he was breaking the law by possessing the police reports. The defense objected and the
objection was overruled, and the trial court was in error in doing so and abused its discretion.
However, this was harmless error because the evidence against defendant was overwhelming.
Piatkowski, 225 Ill. 2d at 565.
¶ 198 However, the State's question in regard to the business license was proper. The
defense's case rested on the notion that defendant was framed by the minor's father. To
support that case, defense counsel introduced a great deal of evidence regarding the business
license, which defendant created as a sole proprietor. Defendant claimed that even though the
license was only in his name, it actually was for a business that he and the minor's father
were starting together. It was perfectly reasonable that the State would try to refute this claim
by asking defendant if he was claiming that he had committed fraud to create this business.
If defendant had not committed fraud in obtaining the license, then the evidence introduced
by defense counsel was irrelevant.
¶ 199 Defendant cites People v. Thomas, 22 Ill. App. 3d 854 (1974), in which the court
found reversible error when the prosecutor accused the defendant, who had no prior criminal
record and had yet to present his defense, of being a "criminal." Thomas, 22 Ill. App. 3d at
857. In stark contrast, in the case at bar, not only was defendant in the process of presenting
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No. 1-13-0657
his defense, he had introduced the other crimes evidence the State was questioning him
about. Moreover, the State never went so far as to call defendant a "criminal." Rather, the
State was questioning the veracity of defendant's claims by inquiring if he understood that he
was introducing evidence of other crimes in order to refute the crime he was on trial for.
¶ 200 B. Asking Defendant to Comment on Credibility of Witnesses
¶ 201 Defendant next claims that the State engaged in prosecutorial misconduct when it
asked defendant to comment on the testimony of the minor, Evanoka, and Abruscato. Since
this claim concerns the proper scope of cross-examination, we will only reverse if the trial
court abused its discretion by allowing the prosecutor to ask these questions. Becker, 239 Ill.
2d at 234.
¶ 202 It is generally improper for a prosecutor to ask a defendant to comment on the
veracity of other witnesses. People v. Turner, 128 Ill. 2d 540, 558 (1989). However, it can be
acceptable if the questions are intended to have defendant explain his story in the light of
overwhelmingly conflicting evidence. Turner, 128 Ill. 2d at 558.
¶ 203 In the case at bar, there was overwhelming conflicting evidence. There was DNA on
the minor's T-shirt, and the police found the lubricant and jockstraps exactly where the minor
testified they were located. Defendant sent the minor a text message that said "If I find out
you told anyone, you'll be living on the streets." Defendant's response to this was that the
minor was being coerced by his father to frame defendant. Abruscato testified that defendant
described the sexual assault in detail and on a number of occasions. The defense's theory that
Abruscato only testified to obtain an undisclosed deal was refuted by Abruscato, his defense
attorney, and the Lake County ASA. The uncle's testimony that he had overhead the father
comment that he had framed defendant was contradicted by the minor, his father, and his
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No. 1-13-0657
grandmother, who all testified that the uncle and the father were never in the same house
together. Defendant testified that he never raised his voice to the minor when they were both
in defendant's apartment, yet Evanoka, a neighbor who had nothing to gain from her
testimony, testified that she heard defendant yelling with another person.
¶ 204 In light of this evidence, the State did not commit error when it asked defendant if he
had heard the testimony of these witnesses and then questioned defendant on how his version
of events differed so crucially from the other witnesses. As such, we cannot find that the trial
court abused its discretion by allowing the State to question defendant about the testimony of
the other witnesses. Becker, 239 Ill. 2d at 234.
¶ 205 Defendant also claims that the State engaged in misconduct for the following
exchange between the State and the Lake County ASA:
"THE STATE: [ASA], as an attorney, as a State's Attorney and as a Commander
in the United States Navy—
DEFENSE COUNSEL: I will object.
THE STATE: —is it your job to judge the credibility of people when you have
conversations with them as to their integrity and honestly [sic]?
DEFENSE COUNSEL: Objection.
THE COURT: Sustained as to the form of the question.
THE STATE: Do you make decisions in your job as to witness credibility of
people that you're going to put on the witness stand?
DEFENSE COUNSEL: Objection.
THE COURT: Sustained."
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No. 1-13-0657
¶ 206 Defendant claims that even though the court sustained the objection, the fact that the
State asked the question twice was prejudicial. Defendant does not state, however, how this
line of questioning was prejudicial. Notably, the court sustained his objection. We note that
"a ruling sustaining a defense objection generally is sufficient to cure any prejudice that may
have occurred." People v. Desantiago, 365 Ill. App. 3d 855, 866 (2006) (citing People
v. Edwards, 195 Ill. 2d 142, 168 (2001)). In this case, the State was attempting to ask a
witness if he generally engaged in judging witnesses credibility. When the court sustained the
first objection as to the form of the question, the State attempted to ask the question in a
different form. This was also objected to, and the State then ended this line of questioning. At
this point, the State had not received a response from the ASA, nor did the State ever ask the
ASA if he found any particular witness credible. Thus, given the relatively short exploration
if the ASA, as part of his job, had to assess witness credibility, with no response ever being
given, we find that the court sustaining defense's objection was enough to cure any prejudice.
Desantiago, 365 Ill. App. 3d at 866.
¶ 207 Accordingly, we do not find that the trial court abused its discretion by allowing the
State to ask these questions during cross-examination. Becker, 239 Ill. 2d at 234.
¶ 208 C. The State's Testifying Objections
¶ 209 Defendant next claims that the prosecutor made inappropriate "testifying" objections.
Defendant points to a large number of objections, and two exchanges in particular:
"DEFENSE COUNSEL: At your father's house?
MINOR: I wasn't present when—
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THE STATE: Objection as to the father's house. Judge. This was the issue of a
sidebar, Judge, that we just had. This was not at the grandmother's house. This is at
the father's house now.
DEFENSE COUNSEL: The [address].
THE COURT: Overruled.
***
DEFENSE COUNSEL: [The State] asked you about whether or not—if there
were any specific documents regarding the $19,500 check, do you recall that?
DEFENDANT: Yes, I do.
THE STATE: Your Honor, that was not my question.
THE COURT: Counsel, I think you misstated the evidence. Objection sustained.
DEFENSE COUNSEL: [The State] asked you about the withdrawal of funds on
August 16th.
THE STATE: Your Honor, Objection. I asked if there was anything with the
name [the father] on any of those checks.
THE COURT: Sustained."
¶ 210 "An objection is intended only to state the fact of the objection and the evidentiary
basis therefor." People v. Blue, 189 Ill. 2d 99, 136 (2000) (citing Eizerman v. Behn, 9 Ill.
App. 2d 263, 287 (1956)). It is improper for prosecutors to attempt to introduce contrary
evidence through their objections. See Blue, 189 Ill. 2d at 136. In making inappropriate
"testifying" objections, "the State gain[s] an unfair advantage: it is probable that the jury
endow[s] the remarks made by government representatives with greater credibility than is
normally accredited to witnesses." Blue, 189 Ill. 2d at 137. "A prosecutor's remarks will be
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grounds for reversal only when they result in substantial prejudice to the defendant." People
v. Desantiago, 365 Ill. App. 3d 855, 866 (2006) (citing People v. Sutton, 353 Ill. App. 3d
487, 498 (2004)). Substantial prejudice occurs " 'if the improper remarks constituted a
material factor in a defendant's conviction.' " People v. Maldonado, 402 Ill. App. 3d 411, 422
(2010) (quoting People v. Wheeler, 226 Ill. 2d 92, 123 (2007)).
¶ 211 Defendant has not shown how the prosecutor's objections were anything other than
providing an evidentiary basis for the objection. Blue, 189 Ill. 2d at 136. The State was not
introducing new evidence or contrary evidence, rather, it was explaining the objection by
stating that defense counsel was incorrectly referencing past questions or sidebar
conversations. Defendant relies primarily on Blue, 189 Ill. 2d 99; however, in that case the
prosecutor, through his objections, accused witnesses of lying, introduced evidence that a
warrant was out for a witness, and accused defense counsel of continually misstating the
record. Blue, 189 Ill. 2d at 135-36. In the case at bar, nothing in the record rises to this level
of misconduct. Unlike in Blue, we do not find that the prosecutor's conduct "exceeded the
accepted evidentiary bases for entering objections." Blue, 189 Ill. 2d at 137. Thus, we cannot
find that the prosecutor's remarks substantially prejudiced defendant. Desantiago, 365 Ill.
App. 3d at 866.
¶ 212 D. The State's Rebuttal Closing Argument
¶ 213 Defendant next claims that the State distorted the burden of proof during its rebuttal
closing argument when it stated:
"THE STATE: You know, folks, there's an old saying, country saying. It says
when you get kicked by the horse the first time, it's the horses fault. When you get
kicked the second time, it's your fault. Don't let anybody kick you into finding this
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guy not guilty. *** Because for that to happen, you've got to believe that the evidence
that was presented here was fabricated, incompetently handled, that there was perjury,
and that the unluckiest man in the world sat over here and had a T-shirt found in his
laundry."
¶ 214 We start by noting that it is not clear if a prosecutor's comments during closing
arguments are reviewed de novo or for an abuse of discretion. See People v. Raymond, 404
Ill. App. 3d 1028, 1059 (2010) (citing People v. Phillips, 392 Ill. App. 3d 243, 274-75
(2009), and People v. Johnson, 385 Ill. App. 3d 585, 603 (2008)). We do not need to spend
time here discussing this distinction, which has been discussed many times before. Nor do we
need to resolve the issue of the appropriate standard of review at this time, because our
holding in this case would be the same under either standard.
¶ 215 When reviewing claims of prosecutorial misconduct in closing argument, a reviewing
court will consider the entire closing arguments of both the prosecutor and the defense
attorney, in order to place the remarks in context. People v. Wheeler, 226 Ill. 2d 92, 122
(2007); People v. Johnson, 208 Ill. 2d 53, 113 (2003); People v. Tolliver, 347 Ill. App. 3d
203, 224 (2004). A prosecutor has wide latitude during closing argument. Wheeler, 226 Ill.
2d at 123; Blue, 189 Ill. 2d at 127. "In closing, the prosecutor may comment on the evidence
and any fair, reasonable inferences it yields ***." People v. Nicholas, 218 Ill. 2d 104, 121
(2005). Reversal is warranted only if the prosecutor's remarks created "substantial
prejudice." Wheeler, 226 Ill. 2d at 123; Johnson, 208 Ill. 2d at 64; People v. Easley, 148 Ill.
2d 281, 332 (1992) ("The remarks by the prosecutor, while improper, do not amount to
substantial prejudice.").
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¶ 216 Defendant relies on People v. Miller, 302 Ill. App. 3d 487 (1998), in which the court
held that "[f]or the prosecution to argue that in order to acquit the defendant the jury must
believe that the State's witnesses are lying is a misstatement of law and a serious error which
shifts the burden of proof." Miller, 302 Ill. App. 3d at 497 (citing People v. Wilson, 199 Ill.
App. 3d 792, 797 (1990)). However, the Miller court noted:
"For the prosecution to argue that, ' "in order to believe the defendant's version of
the incident" ' [citation], the jury must believe that the State's witnesses are lying is
usually a misstatement of the evidence and a less serious error. This is especially true
if the testimony of the defense and prosecution witnesses is directly contradictory on
matters concerning which they are not likely to be mistaken--that is, if under the
circumstances of the case the statement is not substantially misleading. [Citation.]"
Miller, 302 Ill. App. 3d at 497.
¶ 217 In People v. Coleman, 158 Ill. 2d 319 (1994), our supreme court found that the
prosecutor stating " '[l]adies and gentlemen, in order to believe the Defendant you must
believe that all the civilian witnesses, all the police, all the experts, lied' " during closing
arguments did not lead to substantial prejudice against the defendant. Coleman, 158 Ill. 2d at
345, 347-48. Similarly, in the case at bar, when the State's comments are placed in context, it
is clear that the State is referring to what the jury would have to find in order to believe
defendant, not in order to find him not guilty. While the Prosecutor's "country saying" may
not have made this as clear as desired, it was a version of "fool me once, shame on you, fool
me twice, shame on me" which inherently refers to whether or not someone is believable.
The fact that the State was referring to whether to believe defendant is made more evident
because defense counsel explicitly stated in his closing that nearly every witness who told a
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different version of events than told by defendant was lying. In doing so, he invited the
comparison that to believe defendant the jury would have to believe that the minor, his
grandmother, his father, Abruscato, Abruscato's lawyer, and the Lake County ASA were
lying, and the prosecutor in his rebuttal was essentially reiterating the very same comments
made by defense counsel. However, it is true that it was incorrect to say that to believe the
defendant the jury would have to find that "every witness" was lying, as not every witness
rebutted defendant's version of events. As such, while this did constitute a misstatement of
the evidence, it was not such a serious error that it inherently denied defendant a fair trial.
Miller, 302 Ill. App. 3d at 496-97.
¶ 218 We do not find in this instance, where both sides presented testimony that the
witnesses for the other side were lying, and both sides argued during closing that their
witnesses were more believable and the other side's were untruthful, that the comment made
by the State created substantial prejudice against defendant. Wheeler, 226 Ill. 2d at 123.
¶ 219 E. Cumulative Error
¶ 220 Defendant's final claim is that when all of these claims are looked at together, they
constitute cumulative error resulting in prejudice that denied defendant his constitutionally
protected right to present a complete defense and a fair trial. Ramirez, 2012 IL App (1st)
093504, ¶ 43. However, because we have not found any substantial merit in defendant's
claims, we need not find if they cumulatively led to prejudice. See, e.g., People v. Perry, 224
Ill. 2d 312, 356 (2007) (in rejecting each of defendant's claims, cumulative error analysis was
not necessary).
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¶ 221 IV. Prior Consistent Statements
¶ 222 Defendant next claims that the trial court erred when it allowed the State to question
Kondrat during cross-examination in order to elicit prior consistent statements to rehabilitate
the credibility of the minor and Abruscato. Defense counsel did object to some of these
questions, but only stated that he was objecting because the questions were "beyond the
scope." Regardless, this issue was not included in the posttrial motion for a new trial. In order
to preserve an error, there must be an objection at trial and a posttrial motion raising the
issue. People v. Enoch, 122 Ill. 2d 176, 186 (1988). Defendant does not argue in his appellate
brief, or in his reply brief, that this issue is subject to plain-error review. "Our supreme court
has recently made [it] clear that a defendant who fails to argue for plain error review
'obviously cannot meet his burden of persuasion.' " People v. McCoy, 405 Ill. App. 3d 269,
273-74 (2010) (quoting People v. Hillier, 237 Ill. 2d 539, 545 (2010)). Specifically, " 'when a
defendant fails to present an argument on how either of the two prongs of the plain-error
doctrine is satisfied, he forfeits plain-error review.' "McCoy, 405 Ill. App. 3d at 274 (quoting
Hillier, 237 Ill. 2d at 545-46). Accordingly, we find that this issue was not properly
preserved for review by this court, and that defendant has forfeited plain-error review. Enoch,
122 Ill. 2d at 186; McCoy, 405 Ill. App. 3d at 274.
¶ 223 V. Factors in Sentencing
¶ 224 Defendant next claims that the judge improperly considered that defendant caused or
threatened serious physical harm as a factor in sentencing defendant. Defendant agrees that
this issue was not included in his motion to reconsider sentence, but urges us to consider the
issue under plain-error review. Piatkowski, 225 Ill. 2d at 564. Again, before we can perform
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plain-error analysis, we must first determine that any error occurred at all. Piatkowski, 225
Ill. 2d at 565.
¶ 225 A trial court's sentencing decisions are entitled to great deference and will not be
disturbed on appeal absent an abuse of discretion. People v. Spicer, 379 Ill. App. 3d 441, 465
(2007) (quoting People v. Jackson, 375 Ill. App. 3d 796, 800 (2007)). " 'A sentence which
falls within the statutory range is not an abuse of discretion unless it is manifestly
disproportionate to the nature of the offense.' " Spicer, 379 Ill. App. 3d at 465
(quoting Jackson, 375 Ill. App. 3d at 800).
¶ 226 In the case at bar, defendant was sentenced for 24 years for aggravated criminal
sexual assault, a Class X felony with a sentencing maximum of 30 years. 720 ILCS 5/11-
1.30(a)(4) (West 2010); 730 ILCS 5/5-4.5-25(a) (West 2010). The judge considered five
factors in sentencing defendant, one of which was that defendant caused or threatened serious
physical harm. From the record, we cannot conclude that considering this factor was an abuse
of discretion. The record reveals that minor felt "pain" when defendant assaulted him. While
the minor did not show physical symptoms when examined by Dr. Abujarma, she testified
that given the time between the assault and the examination, this was not unexpected.
¶ 227 Even if this was an improper factor, we would not feel compelled to reverse the
sentencing. A reviewing court need not reverse where a single improper consideration during
sentencing was not the dominant factor considered. People v. Steppan, 105 Ill. 2d 310, 322-
23 (1985); Sims, 403 Ill. App. 3d at 24. When the appellate court reviews a sentence, it
"should not focus on a few words or statements made by the trial court, but must consider the
record as a whole." Sims, 403 Ill. App. 3d at 24 (citing People v. Reed, 376 Ill. App. 3d 121,
128 (2007)). In the case at bar, there were four other factors that were considered, and the
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No. 1-13-0657
trial court did not state which were weighed more heavily in consideration of the sentencing.
We note that "[t]he trial judge is not required to set forth each and every reason or specify the
weight given each factor considered in the sentencing decision." People v. Williams, 223 Ill.
App. 3d 692, 701 (1992) (citing People v. Brajcki, 150 Ill. App. 3d 506 (1986)). Unstated by
the trial court, but plainly clear in the record, was also the psychological harm that the minor
testified that he suffered, when minor testified during the sentencing hearing. The minor
testified that he suffered depression, had trouble eating, concentrating in school, and
maintaining healthy relationships with his peers. "[T]he trial court may consider the
psychological impact of a sexual assault on the victim in determining an appropriate
sentence." Williams, 223 Ill. App. 3d at 701.
¶ 228 As a result of the multiple factors considered by the trial court, and the psychological
harm that the record reveals the minor suffered, we cannot find that the trial court abused its
discretion when it sentenced defendant to a sentence that was well within the statutory range.
Spicer, 379 Ill. App. 3d at 465.
¶ 229 VI. Double Enhancement
¶ 230 Defendant next claims that his aggravated criminal sexual assault conviction must be
vacated because the aggravated criminal sexual assault charges were based on the
commission of criminal sexual assault during the felony of unlawful restraint. 720 ILCS
5/11-1.30(a)(4) (West 2010). Specifically, he argues that unlawful restraint is a lesser
included offense of criminal sexual assault and using it to enhance criminal sexual assault to
aggravated criminal sexual assault is a double enhancement. A double enhancement occurs
when either: "(1) a single factor is used both as an element of an offense and as a basis for
imposing a harsher sentence than might otherwise have been imposed, or (2) the same factor
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No. 1-13-0657
is used twice to elevate the severity of the offense itself." People v. Guevara, 216 Ill. 2d 533,
545 (2005) (citing People v. Phelps, 211 Ill. 2d 1, 11-13 (2004)). As this is a sentencing
issue, we review it for abuse of discretion. Spicer, 379 Ill. App. 3d at 465.
¶ 231 A person commits unlawful restraint when he "knowingly without legal authority
detains another." 720 ILCS 5/10-3 (West 2010). While defendant maintains that unlawful
restraint is a lesser included offense of criminal sexual assault, Illinois courts have held
"[u]nlawful restraint is not necessarily a lesser included offense of criminal sexual assault."
People v. Alvarado, 235 Ill. App. 3d 116, 117 (1992). "In determining whether a defendant
committed a separate physical act of unlawful restraint, Illinois courts have looked at whether
the restraint was 'independent' of the physical act underlying the other offense [citations]."
People v. Daniel, 2014 IL App (1st) 121171, ¶ 51. "The evidence must, however, show that
the restraint was independent of the other offense and punishable as such." People v. Sperow,
170 Ill. App. 3d 800, 814 (1988) (citing People v. Kuykendall, 108 Ill. App. 3d 708, 711
(1982)).
¶ 232 Defendant relies primarily on People v. Brials, 315 Ill. App. 3d 162 (2000). In Brials,
the unlawful restraint that was used to enhance criminal sexual assault to aggravated criminal
sexual assault was the actual restraint used to prevent the victim from moving during the
sexual assault. Brials, 315 Ill. App. 3d at 175. In the case at bar, the unlawful restraint that
was used as an enhancing factor was not the restraint used by defendant to perpetrate the
sexual assault. Instead, the unlawful restraint occurred when the minor had previously
attempted to leave the apartment and defendant slammed the door shut and locked it. The
sexual assault did not even occur immediately following the unlawful restraint, as the time
between the restraint and the assault were separated by the time defendant spent in the
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bathroom with the minor. This was not a case in which the unlawful restraint being charged
was inherent to the crime itself, as defendant could have held the minor down and sexually
assaulted him without first locking him in the apartment and then forcing the minor to
"model" a jockstrap. In this sequence of events, the unlawful restraint by confining the minor
in the apartment was independent from the sexual assault and punishable as such. Sperow,
170 Ill. App. 3d at 814. We cannot find that the trial court abused its discretion when it used
the unlawful restraint to enhance criminal sexual assault to aggravated sexual assault.
¶ 233 VII. One-Act, One-Crime
¶ 234 Defendant finally claims that under the one-act, one-crime rule articulated in People
v. King, 66 Ill. 2d 551, 566 (1977), his convictions for criminal sexual assault and unlawful
restraint should be vacated, as they all resulted from the same act of sexual penetration with
the minor. We have just found that the unlawful restraint was a separate and independent act
from the sexual assault, so we cannot find that this resulted from the same act and therefore
do not vacate that conviction. However, the conviction for criminal sexual assault requires
further discussion.
¶ 235 Whether defendant was incorrectly sentenced for multiple offenses based upon the
same act is a question of law that this court reviews de novo. People v. Nunez, 236 Ill. 2d
488, 493 (2010); People v. Artis, 232 Ill. 2d 156, 161 (2009); People v. Kolton, 219 Ill. 2d
353, 361 (2006). De novo consideration means we perform the same analysis that a trial
judge would perform. People v. Tolefree, 2011 IL App (1st) 100689, ¶ 25 (citing Khan v.
BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011)). While defendant did not raise this
issue in the trial court or his posttrial motions, our supreme court has held that any forfeited
one-act, one-crime arguments may be evaluated by a reviewing court under the second prong
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of the plain-error rule because they implicate the integrity of the judicial process. Nunez, 236
Ill. 2d at 493 (citing Artis, 232 Ill. 2d at 167-68).
¶ 236 The one-act, one-crime rule holds that multiple convictions are improper if they result
from the same act. People v. Miller, 238 Ill. 2d 161, 165 (2010). "If an offense is a lesser-
included offense, multiple convictions are improper." Miller, 238 Ill. 2d at 165 (citing People
v. Rodriguez, 169 Ill. 2d 183, 186 (1996)). Criminal sexual assault requires sexual
penetration, and aggravated criminal sexual assault requires criminal sexual assault. 720
ILCS 5/11-1.20(a), 11-1.30(a) (West 2010). Defendant only sexually penetrated minor one
time at his apartment, so it is clear that the criminal sexual assault defendant was convicted
of was a lesser-included offense of the aggravated criminal sexual assault, both resulting
from the same act of penetration. As such, it was improper to convict defendant for criminal
sexual assault. Miller, 238 Ill. 2d at 165. We thereby vacate the conviction for criminal
sexual assault and correct the mittimus to reflect only the convictions of aggravated criminal
sexual assault and unlawful restraint. People v. Mitchell, 234 Ill. App. 3d 912, 921 (1992)
("[T]his court may court may correct the mittimus without remanding to the trial court.").
¶ 237 CONCLUSION
¶ 238 For the foregoing reasons, we do not find convincing defendant's claims that: (1) he was
denied the ability to present a complete defense; (2) the trial court's prejudice denied him a
fair trial; (3) prosecutorial misconduct denied him a fair trial; (4) the trial court erred in
allowing the State to rehabilitate witnesses with prior consistent statements; (5) the trial court
considered improper aggravating factors during sentencing; and (6) defendant's aggravated
criminal sexual assault is the result of a double enhancement.
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¶ 239 However, we do find convincing defendant's claim that the trial court erred in not
vacating the conviction for criminal sexual assault. We affirm, and correct the mittimus to
reflect only convictions for aggravated criminal sexual assault and unlawful restraint
¶ 240 Affirmed; mittimus corrected.
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