People v. Johnson ( 2023 )

2023 IL App (4th) 220201 FILED
February 21, 2023
NO. 4-22-0201 Carla Bender
4th District Appellate
IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Lee County
RICHARD L. JOHNSON, ) No. 21CF36
Defendant-Appellant. )
) Honorable
) Jacquelyn Dawn Ackert,
) Judge Presiding.
JUSTICE ZENOFF delivered the judgment of the court, with opinion.
Justices Cavanagh and Steigmann concurred in the judgment and opinion.
OPINION
¶1 Following a bench trial in the circuit court of Lee County, the trial court found
defendant, Richard L. Johnson, guilty of three counts of predatory criminal sexual assault of a
child (720 ILCS 5/11-1.40(a)(1) (West 2020)). The court sentenced defendant to 10 years in
prison on each count, with the sentences to be served consecutively. Defendant appeals. We
reverse defendant’s conviction on count II. Pursuant to Illinois Supreme Court Rule 615(b)(3)
(eff. Jan. 1, 1967), we reduce the conviction on count II to aggravated criminal sexual abuse (720
ILCS 5/11-1.60(b) (West 2020)), and we remand the matter to the trial court for sentencing on
that offense. We affirm the judgment in all other respects.
¶2 I. BACKGROUND
¶3 In February 2021, the State charged defendant with three counts of predatory
criminal sexual assault of a child, with the conduct occurring “[o]n or about March 23, 2020 and
March 27, 2020.” The State alleged defendant assaulted his eight-year-old granddaughter, J.O.,
by inserting his finger into her vagina (count I), touching her vagina with his hand (count II), and
putting her hand on his penis (count III).
¶4 Melissa Folkers interviewed J.O. at Shining Star Children’s Advocacy Center
(Shining Star) on August 14, 2020, and again on February 10, 2021. Both interviews were video-
recorded. In the first interview, J.O. did not divulge any sexual assault, and she told Folkers that
nothing happened with defendant that she did not like. However, in the second interview, J.O.
described defendant sexually assaulting her multiple times in bathrooms and on a couch. J.O.
seemed to say that the assaults all happened during one stay at defendant’s home when she was
about eight years old. J.O. mentioned defendant (1) showing her his “private part,” (2) making
her touch his “private part,” (3) touching her “private part” (both over her clothes and “all the
way into” her private part, and (4) kissing her like “grown up” or “married” people do. J.O. said
that defendant told her to keep his conduct a secret.
¶5 Prior to trial, pursuant to section 115-10 of the Code of Criminal Procedure of
1963 (Code) (725 ILCS 5/115-10 (West 2020)), the State filed a notice of intent to introduce
J.O.’s February 10, 2021, interview. Section 115-10 provides a hearsay exception for
out-of-court statements made by young victims of sexual assault. Relevant conditions include
that (1) “[t]he court finds in a hearing conducted outside the presence of the jury that the time,
content, and circumstances of the statement provide sufficient safeguards of reliability” (725
ILCS 5/115-10(b)(1) (West 2020)) and (2) the child testifies at trial (725 ILCS 5/115-
10(b)(2)(A) (West 2020)). When the State’s motion came up for hearing, the parties stipulated
that both of J.O.’s recorded interviews could be admitted at trial, “pursuant to the child being
available to testify.” The trial court accepted that stipulation.
-2-
¶6 The matter proceeded to a bench trial in November 2021. J.O. was the first
witness for the State. She testified on direct examination as follows. She was born in January
2012. She currently lived in Kentucky, but she did not know how long she had lived there. She
was testifying in the presence of her dog to calm her. She was “[a] little bit” anxious about
testifying. She remembered speaking to somebody named “Missy” at Shining Star twice. The
first time J.O. spoke with Missy, J.O. talked about her family and “[t]heir names.” Asked by the
prosecutor what else she spoke about during that first interview, J.O. responded: “Nothing else. I
don’t know.” J.O. testified that she then spoke with a counselor in Kentucky about what
happened to her. After speaking with that counselor, J.O. spoke with Missy a second time.
During that second conversation, J.O. told Missy that her “Papa” had done something to her. J.O.
identified defendant in court as her Papa. J.O. testified that, in her second conversation with
Missy, she told Missy that defendant did “a couple different things” to her on “[d]ifferent days.”
Asked by the prosecutor whether there was a reason she was “keeping it a secret,” J.O.
responded “[y]es,” though she forgot the reason. J.O. testified that she told the truth when she
spoke with Missy the second time.
¶7 On cross-examination, J.O. testified that she did not remember Missy asking her
during the first interview whether anybody had ever touched her in a way she did not like.
Questioned whether she remembered being asked during the first interview if anything she did
not like ever happened with her “Grandma Rose,” J.O. testified: “Yes. I just don’t know.” J.O.
testified she remembered Missy asking her whether anything she did not like ever happened with
defendant. However, J.O. did not remember what answer she provided when Missy asked that
question.
-3-
¶8 After J.O. testified, the prosecutor asked to play the “videos,” noting that the
parties agreed that “they” should be presented pursuant to section 115-10 of the Code. Defense
counsel told the trial court: “Yes, that is correct.” The court watched J.O.’s August 14, 2020,
interview and then took a lunch recess. After the recess, the State requested to play the recording
of the February 10, 2021, interview. At that point, defense counsel asked the court to “reconsider
its ruling pursuant to [section] 115-10.” Defense counsel argued that defendant did not have a
meaningful opportunity to cross-examine J.O., given that she did not testify to the details of the
alleged sexual assaults. The court took a recess to review case law. Relying on People v. Garcia-
Cordova, 2011 IL App (2d) 070550-B, the court denied defendant’s “motion for
reconsideration.” The State then played the recording of the February 10, 2021, interview for the
court.
¶9 Jessica Cash, who was the executive director of Shining Star, testified for the
State. Without objection from the defense, the trial court accepted Cash as an expert in children’s
advocacy. Cash testified that it was not common for children to be interviewed twice, though she
said it “does happen.” Cash did not interview J.O. However, from reviewing the videos, Cash
believed that J.O.’s disclosure in the second interview was age-appropriate and not coached.
Cash attributed to anxiety J.O.’s failure to disclose the assaults during the first interview. On
cross-examination, defense counsel questioned Cash about J.O.’s demeanor and speech patterns
in the first interview versus the second. Cash acknowledged on cross-examination that she did
not know anything about the counseling J.O. attended between her first and second interviews.
¶ 10 Rosemarie Hersey, J.O.’s great-grandmother, also testified for the State.
According to Hersey, in August 2020, J.O. made certain statements to her. The trial court
allowed evidence of those statements to prove the effect on the listener, not for the truth of the
-4-
matters asserted. Hersey testified that J.O. did not want to bathe alone. J.O. told Hersey that
(1) J.O. and defendant had a secret, (2) defendant would show her his private parts, (3) defendant
would put his tongue in her mouth, and (4) J.O. wanted defendant to stop. Hersey relayed this
information to J.O.’s mother later that evening.
¶ 11 The State’s last witness was Shane Miller, a detective sergeant for the Lee County
Sheriff’s Office. Miller testified that J.O.’s mother informed him that J.O. made certain
accusations. During the course of the investigation, Miller learned defendant’s address.
¶ 12 Defendant’s wife, Deborah Johnson, testified for the defense. She testified that
J.O. and J.O.’s brother stayed overnight at Johnson’s and defendant’s home from March 23 to
March 27, 2020. Johnson testified that J.O. had one bath during that visit, on March 23.
According to Johnson, while she bathed the children, defendant was in the living room watching
television. Johnson testified that she did not leave the children in defendant’s supervision during
the March 2020 visit. On cross-examination, Johnson denied telling her son, Nicholas O., that
she wished she had checked on J.O. herself rather than having defendant do so.
¶ 13 Defendant testified on his own behalf. His testimony was similar to Johnson’s.
Defendant remembered watching television while Johnson bathed the children. He denied
sexually assaulting J.O.
¶ 14 Nicholas O. testified for the State in rebuttal. According to Nicholas, on August 9
or 10, 2020, he had a phone conversation with his mother, Johnson, about the events of March
2020. According to Nicholas, Johnson told him she was in the kitchen making dinner and she
asked defendant to check on the kids in the bathtub. In surrebuttal, Johnson denied making that
statement to Nicholas.
-5-
¶ 15 The trial court found defendant guilty of all three charges. In addressing J.O.’s
failure to disclose defendant’s conduct during her initial interview at Shining Star, the court
made the following comments that defendant argues on appeal were improper:
“Having raised five children myself, I understand how children talk; how
they tell stories and at what different ages their communication skills develop.
The mere fact that [J.O.] didn’t make a disclosure in the first video does not mean
that something didn’t happen. It means that [J.O.] herself was not comfortable
telling the story at that time.”
The court determined that defendant and Johnson had reasons to lie about the assaults, whereas
J.O. did not.
¶ 16 In his posttrial motion, one of the issues defendant raised was that the trial court
erroneously admitted the recording of J.O.’s second interview, because J.O. “gave only very
limited in-court testimony.” Defendant raised no challenge to the above-mentioned remarks the
court made when finding defendant guilty. The court denied defendant’s posttrial motion.
¶ 17 The trial court sentenced defendant to 10 years in prison on each of the three
counts, with the sentences to be served consecutively. After the court denied his motion to
reconsider the sentence, defendant filed a timely notice of appeal.
¶ 18 II. ANALYSIS
¶ 19 On appeal, defendant challenges the sufficiency of the evidence as to count II. He
also argues that J.O.’s February 10, 2021, interview should not have been admitted into evidence
pursuant to section 115-10 of the Code. Finally, defendant argues that the trial court improperly
relied on its personal knowledge and evidence outside the record when finding him guilty.
¶ 20 A. Sufficiency of the Evidence
-6-
¶ 21 Defendant challenges the sufficiency of the evidence as to count II. That count
alleged defendant committed predatory criminal sexual assault of a child by committing an act of
sexual contact: specifically, touching J.O.’s vagina with his hand. According to defendant, J.O.’s
statement in the February 10, 2021, interview that defendant touched her over her clothes did not
constitute “contact” for purposes of the offense of predatory criminal sexual assault of a child.
¶ 22 The State concedes error on this point but asks us to exercise our authority under
Illinois Supreme Court Rule 615(b)(3) (eff. Jan. 1, 1967) to reduce defendant’s conviction to the
lesser-included offense of aggravated criminal sexual abuse (720 ILCS 5/11-1.60 (West 2020)).
In his reply brief, defendant acknowledges we have discretion under the circumstances to reduce
the conviction as requested by the State. However, defendant asks us not to do so, because
(1) the State’s evidence was “extremely weak” and (2) his age and poor health make it unlikely
he will survive the existing sentences on the other two counts.
¶ 23 “When considering a challenge to the sufficiency of the evidence, a reviewing
court must determine whether, viewing the evidence in the light most favorable to the
prosecution, a rational trier of fact could have found the required elements of the crime beyond a
reasonable doubt.” People v. Sauls, 2022 IL 127732, ¶ 52. We will not reverse a conviction
“unless the evidence is so unreasonable, improbable, or unsatisfactory that it justifies a
reasonable doubt of the defendant’s guilt.” Sauls, 2022 IL 127732, ¶ 52.
¶ 24 Section 11-1.40(a)(1) of the Criminal Code of 2012 provides:
“(a) A person commits predatory criminal sexual assault of a child if that
person is 17 years of age or older, and commits an act of contact, however slight,
between the sex organ or anus of one person and the part of the body of another
-7-
for the purpose of sexual gratification or arousal of the victim or the accused, or
an act of sexual penetration, and:
(1) the victim is under 13 years of age[.]” 720 ILCS 5/11-
1.40(a)(1) (West 2020).
Although “contact” is not defined in the statute, courts have construed that word to mean “any
touching.” People v. Kitch, 2019 IL App (3d) 170522, ¶ 51. Given the State’s concession that the
evidence pertaining to count II was insufficient to sustain a conviction for predatory criminal
sexual assault of a child, we reverse defendant’s conviction.
¶ 25 The appellate court has the authority to reduce a conviction to an uncharged
lesser-included offense. People v. Kennebrew, 2013 IL 113998, ¶ 25. Here, the parties agree that
aggravated criminal sexual abuse is a lesser-included offense of what the State alleged in count
II. See Kennebrew, 2013 IL 113998, ¶ 41 (noting that courts apply the charging instrument
approach to determine “whether an uncharged offense is a lesser-included offense of a charged
offense”). The parties also agree that the evidence was sufficient to sustain a conviction for
aggravated criminal sexual abuse. The only dispute is whether the circumstances warrant
exercising our discretion to impose a conviction for that offense.
¶ 26 We determine that reducing the degree of defendant’s conviction is appropriate. A
defendant “has no right to an acquittal when the evidence, while insufficient to establish the
greater offense, is sufficient to establish the lesser offense.” Kennebrew, 2013 IL 113998, ¶ 43.
Contrary to what defendant argues, the evidence at trial was not extremely weak. The trial court
credited J.O.’s allegations, and the record contains no hint of a motive for J.O. to accuse
defendant falsely. Emphasizing his age, health, and existing sentences on counts I and III,
defendant also argues it would be a “waste of judicial resources” to resentence him on an
-8-
additional count. We cannot agree. We have no way of knowing how long defendant will live.
Even if it is unlikely defendant will survive his sentences on counts I and III, that would not
necessarily make it a waste of judicial resources to sentence him on count II. “Criminal
punishment serves four key purposes: (1) retribution, (2) deterrence, (3) incapacitation, and
(4) rehabilitation.” People v. Wheeler, 2019 IL App (4th) 160937, ¶ 37. Although the purpose of
rehabilitation might not be served by imposing an additional sentence, the purposes of
retribution, deterrence, and incapacitation could be served.
¶ 27 Pursuant to Illinois Supreme Court Rule 615(b)(3) (eff. Jan. 1, 1967), we reduce
the conviction on count II to aggravated criminal sexual abuse (720 ILCS 5/11-1.60(b) (West
2020)), and we remand the matter to the trial court for sentencing on that offense.
¶ 28 B. Admission of the February 10, 2021, Interview
¶ 29 Defendant next challenges the admission of the February 10, 2021, interview on
three separate grounds. He argues that the trial court committed plain error by accepting his
stipulation to the admissibility and reliability of the interview. He also contends that his counsel
was ineffective for stipulating to the admissibility and reliability of the interview. Finally,
defendant argues that the court violated his confrontation rights.
¶ 30 1. Whether the Court Erroneously Accepted the Stipulation
¶ 31 Defendant maintains that the trial court erred by accepting his stipulation to the
admissibility and reliability of the February 10, 2021, interview. Defendant argues that the court
instead should have independently determined the reliability of J.O.’s statement before allowing
the State to introduce that statement. In presenting this argument, defendant invokes the
reasoning of cases involving determinations of whether a person is fit to stand trial. Defendant
asks us to review this claim pursuant to both prongs of the plain-error doctrine.
-9-
¶ 32 The State responds that the trial court did not err by accepting the stipulation.
According to the State, defendant waived his right to a hearing by making the stipulation. The
State also asserts that “any constitutional due process concerns are already contained in the
statute,” as the statute’s requirements satisfy the sixth amendment. See U.S. Const., amend. VI.
If we find persuasive defendant’s argument that the court erroneously accepted the stipulation,
the State asks us to “remand the matter to the trial court to determine whether it would have
admitted the hearsay statements into evidence.”
¶ 33 We hold that the invited-error doctrine precludes defendant from arguing that the
trial court improperly accepted his stipulation. See People v. Moore, 2021 IL App (2d) 200407,
¶ 37 (sua sponte raising the issue of invited error). Pursuant to the invited-error doctrine, “ ‘an
accused may not request to proceed in one manner and then later contend on appeal that the
course of action was in error.’ ” People v. Harvey, 211 Ill. 2d 368, 385 (2004) (quoting People v.
Carter, 208 Ill. 2d 309, 319 (2003)). To that end, “when a defendant procures, invites, or
acquiesces in the admission of evidence, even though the evidence is improper, she cannot
contest the admission on appeal.” People v. Bush, 214 Ill. 2d 318, 332 (2005). The invited-error
doctrine may apply even where the defendant alleges that the subject evidence violated his or her
constitutional rights. See People v. Palomera, 2022 IL App (2d) 200631, ¶¶ 52-53 (holding that
the invited-error doctrine barred the defendant from arguing that certain evidence violated his
confrontation rights).
¶ 34 Here, the trial court set the matter for a hearing on the State’s request to admit
J.O.’s out-of-court statement pursuant to section 115-10 of the Code. Instead of proceeding with
that hearing, defendant stipulated that J.O.’s statement met the statutory requirements. Having
requested the court to accept this stipulation, defendant may not challenge the court’s action as
- 10 -
plain error. See People v. Rottau, 2017 IL App (5th) 150046, ¶¶ 64-65 (determining that, because
the defendant acquiesced to the procedure, he could not argue on appeal that the trial court
committed plain error by failing to hold a section 115-10 hearing).
¶ 35 The cases defendant cites involving fitness to stand trial do not change our
analysis. “The due process clause of the fourteenth amendment bars prosecuting a defendant who
is unfit to stand trial.” People v. Cook, 2014 IL App (2d) 130545, ¶ 12. If there is a bona fide
doubt as to fitness, case law requires courts to be “active” rather than “passive” participants
when determining fitness. Cook, 2014 IL App (2d) 130545, ¶ 14. By contrast, a decision to admit
out-of-court statements pursuant to the hearsay exception in section 115-10 of the Code has no
constitutional implications, so long as the declarant testifies at trial. See People v. Kitch, 239 Ill.
2d 452, 467 (2011) (explaining that “the confrontation clause poses no restrictions on the
admission of hearsay testimony if the declarant testifies at trial and is present to defend or
explain that testimony” (internal quotation marks omitted)); People v. Sharp, 391 Ill. App. 3d
947, 953 (2009) (explaining that, because the declarant appeared for cross-examination, the
introduction of her hearsay statements “did not implicate the confrontation clause”). Here,
defendant stipulated to the reliability of J.O.’s out-of-court statement when the parties expected
that J.O. would be subject to cross-examination at trial. Thus, when the trial court accepted
defendant’s stipulation, there was no issue of constitutional magnitude for the court to address.
Accordingly, defendant’s reliance on reasoning unique to fitness cases is misplaced, and the
invited-error doctrine precludes him from challenging a ruling that he procured.
¶ 36 2. Whether Counsel Was Ineffective
¶ 37 Defendant next argues that his counsel was ineffective for stipulating to the
admissibility and reliability of the February 10, 2021, interview, because the State could not have
- 11 -
met its burden had the trial court held a section 115-10 hearing. The State preliminarily questions
whether this matter is ripe for adjudication and/or better left for postconviction proceedings. The
State also argues that defendant cannot show prejudice from his counsel’s actions. On that point,
the State maintains that, had the matter proceeded to a section 115-10 hearing, the court would
have deemed J.O.’s out-of-court statement reliable.
¶ 38 We first determine that defendant’s claim is ripe for review. The State questions
ripeness only in the event that we accept defendant’s preceding plain-error argument and remand
the matter to the trial court for a section 115-10 hearing. Having held that defendant may not
argue plain error because he invited any error, there is no ripeness problem. Although inviting a
ruling precludes a plain-error challenge to that ruling, a defendant may still argue that his counsel
was ineffective for inviting the ruling. See People v. Page, 2022 IL App (4th) 210374, ¶ 27.
¶ 39 With respect to the State’s other preliminary argument, our supreme court has
cautioned that a reviewing court should refrain from addressing an ineffective-assistance claim
on direct review “only when the record is incomplete or inadequate for resolving the claim.”
People v. Veach, 2017 IL 120649, ¶ 46. Here, the State proposes that “it is unknown why trial
counsel stipulated” to the reliability of J.O.’s out-of-court statement. We discern no impediment
to addressing defendant’s claim on direct appeal. See People v. Myles, 2020 IL App (4th)
180652, ¶¶ 43-54 (addressing a similar claim on direct appeal). The obvious reason for defense
counsel stipulating to the reliability of J.O.’s statement rather than proceeding with the scheduled
section 115-10 hearing was that counsel determined the trial court would likely admit that
statement. Accordingly, we turn to the merits of defendant’s argument that his counsel’s
stipulation constituted ineffective assistance.
- 12 -
¶ 40 Claims of ineffective assistance of counsel are governed by the standard set forth
in Strickland v. Washington, 466 U.S. 668 (1984). Generally, to sustain a claim of ineffective
assistance, a defendant must show that his counsel’s performance was deficient and that such
deficiency prejudiced the defense. Strickland, 466 U.S. at 687. An attorney’s performance is
deficient where he or she made errors that were so serious that he or she “was not functioning as
the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. A
defendant establishes prejudice where “counsel’s errors were so serious as to deprive the defendant
of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687. In that respect, a
defendant “must show that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. “A
reasonable probability is a probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694. Where a defendant argues ineffective assistance for the first time on
appeal, our review is de novo. People v. Merriweather, 2022 IL App (4th) 210498, ¶ 40.
¶ 41 One of the requirements for admitting a child’s out-of-court accusation of sexual
assault is that “the time, content, and circumstances of the statement provide sufficient
safeguards of reliability.” 725 ILCS 5/115-10(b)(1) (West 2020). In evaluating the reliability of a
statement, a court should consider the totality of the circumstances. People v. Lara, 2011 IL App
(4th) 080983-B, ¶ 38. Relevant factors include “ ‘(1) the child’s spontaneity and consistent
repetition of the incident, (2) the child’s mental state, (3) use of terminology unexpected of a
child of similar age, and (4) the lack of motive to fabricate.’ ” Lara, 2011 IL App (4th) 080983-
B, ¶ 38 (quoting Sharp, 391 Ill. App. 3d at 955). Typically, the trial court evaluates before trial
the reliability of the child’s statement. If the defendant later challenges that ruling on appeal, the
- 13 -
reviewing court will not reverse unless the ruling was an abuse of discretion. Lara, 2011 IL App
(4th) 080983-B, ¶ 37.
¶ 42 In challenging the reliability of J.O.’s statement in the February 10, 2021,
interview, defendant raises many of the points his counsel highlighted in closing argument. For
example, defendant mentions that J.O. denied in the August 14, 2020, interview that defendant
did anything she did not like. Defendant also notes that between the first interview and February
10, 2021, J.O. received counseling from an unknown individual with unknown qualifications.
Defendant further identifies perceived differences in J.O.’s speech and demeanor in the two
interviews that he insists cast doubt on the veracity of her accusations in the second interview.
¶ 43 The trial court found these arguments unavailing after a bench trial, so it seems
certain defendant would have had no more success had his counsel raised them at a section
115-10 hearing before trial. We hold that defendant cannot satisfy either prong of Strickland,
because J.O.’s statements were sufficiently reliable to justify their admission into evidence.
¶ 44 J.O. was eight years old in August 2020 when she spontaneously told her
great-grandmother that defendant showed her his private parts and put his tongue in her mouth.
During the initial interview at Shining Star on August 14, 2020, J.O. denied being assaulted by
anybody. However, that does not necessarily make her detailed allegations in the February 10,
2021, interview unreliable. See Rottau, 2017 IL App (5th) 150046, ¶¶ 57-59 (upholding a finding
that accusations made in a second interview were reliable even though the accuser denied in her
first interview being abused). In the February 10, 2021, interview, J.O. explained that defendant
told her to keep his conduct a secret. J.O. also explained that she was initially mad at her
great-grandmother for telling her parents when she first disclosed defendant’s conduct. Those
- 14 -
circumstances reasonably explain why J.O. did not discuss the assaults when she was
interviewed at Shining Star the first time.
¶ 45 We reject defendant’s suggestion that any differences in J.O.’s speech and
demeanor between the two interviews rendered J.O.’s accusations against defendant unreliable.
In her second interview, J.O. described things a child her age would be unlikely to think of
unless they were true, such as feeling pain upon being penetrated. The record also contains no
hint of a possible motive for J.O. to accuse defendant falsely. For example, there was no
indication of hostility within J.O.’s family that could have motivated an adult to encourage J.O.
to implicate defendant falsely. The fact that J.O. attended counseling between her two interviews
likewise does not render J.O.’s accusations unreliable. J.O.’s parents did what any reasonable
parents would do by enrolling her in counseling after she disclosed her grandfather’s conduct.
The trial court was aware that J.O. attended counseling between her interviews yet still found her
accusations credible.
¶ 46 We determine that, under the totality of the circumstances, J.O.’s out-of-court
statement in the February 10, 2021, interview was sufficiently reliable to justify its admission
pursuant to section 115-10 of the Code. Had defense counsel not stipulated to the admission of
this evidence, it is virtually certain the trial court would have allowed the evidence anyway.
Thus, defense counsel pursued a reasonable trial strategy by stipulating to the admission of the
evidence and then attempting to discredit it at a bench trial. Defendant has not met either prong
of Strickland.
¶ 47 3. Whether the Court Violated Defendant’s Confrontation Rights
¶ 48 Defendant further argues that the trial court violated his confrontation rights by
admitting the February 10, 2021, interview into evidence. In defendant’s view, before J.O.’s
- 15 -
out-of-court statement could be admitted, J.O. was required to detail the assaults on direct
examination. The State responds that defendant’s argument is against the great weight of Illinois
authority.
¶ 49 Pursuant to the confrontation clause of the sixth amendment to the United States
Constitution (U.S. Const., amend. VI), testimonial statements of a witness who does not appear
at trial are inadmissible unless (1) the witness was unavailable to testify and (2) the defendant
had a prior opportunity to cross-examine the declarant. Crawford v. Washington, 541 U.S. 36,
53-54 (2004). Here, the parties do not dispute that J.O.’s statement in her February 10, 2021,
interview was testimonial. Defendant also had no opportunity to cross-examine J.O. before trial.
Thus, the question is whether J.O.’s testimony was so bereft of content that she failed to
“appear” at trial and was an “unavailable” witness. We review for an abuse of discretion the trial
court’s decision as to whether a witness was available. In re Brandon P., 2014 IL 116653, ¶ 45.
¶ 50 In People v. Bryant, 391 Ill. App. 3d 1072, 1083 (2009), we said that the key
inquiry is whether the declarant was “present for cross-examination and answered questions
asked of her by defense counsel.” See also Lara, 2011 IL App (4th) 080983-B, ¶ 48 (determining
that the complaining witness appeared for cross-examination where she answered all questions
asked of her at trial). Where an accuser answers all questions at trial and the defense declines the
opportunity to question the accuser about her out-of-court accusations, the defendant cannot
complain that the accuser was unavailable for cross-examination. See People v. Graves, 2021 IL
App (5th) 200104, ¶ 43 (explaining that the confrontation clause is satisfied if the declarant
appears for cross-examination, even if the declarant does not testify to the conduct giving rise to
the defendant’s charges). But see Brandon P., 2014 IL 116653, ¶ 47 (affirming a trial court’s
finding that a witness was unavailable where she “could barely answer the trial court’s
- 16 -
preliminary questions, and then completely froze when the State attempted to begin its direct
examination of her”). Here, J.O. answered all questions posed to her at trial. Neither “youth” nor
“fear” prevented her from answering questions. Brandon P., 2014 IL 116653, ¶ 47. Thus,
defendant’s failure to question J.O. about her out-of-court allegations when he had the
opportunity to do so does not mean that J.O. did not “appear” at trial, nor does it make her an
“unavailable” witness. Although defendant argues that Graves was “wrongly decided,” we
determine that Graves is consistent with other case law, including Bryant, Lara, and Brandon P.
¶ 51 Defendant relies heavily on the Second District’s decision in People v. Learn, 396
Ill. App. 3d 891 (2009). In Learn, a divided court opined that a witness did not testify for
purposes of section 115-10 of the Code where she did not provide accusatory testimony; in the
court’s view, “[i]mmaterial or general background ‘testimony’ is not sufficient.” Learn, 396 Ill.
App. 3d at 900. Notably, however, the court in Learn did not purport to ground its decision in
constitutional law. See Learn, 396 Ill. App. 3d at 899 (stating that its “analysis is not a
confrontation clause analysis”). Furthermore, some courts have disagreed with Learn. See
Graves, 2021 IL App (5th) 200104, ¶ 39 (stating that Learn has received “extensive negative
treatment” by Illinois courts and has never been cited approvingly). Even the Second District has
distanced itself from Learn’s analysis. See People v. Riggs, 2019 IL App (2d) 160991, ¶ 38
(explaining that “a defendant’s right to confront witnesses cannot be recast as the State’s burden
to confront witnesses”); Garcia-Cordova, 2011 IL App (2d) 070550-B, ¶ 63 (“Where a
defendant does not attempt to cross-examine a witness on her out-of-court statements, he cannot
complain that the witness was unavailable for cross-examination.”).
¶ 52 Besides being an outlier opinion, Learn is factually distinguishable. In Learn, the
prosecutor cut short the victim’s direct examination without introducing accusatory testimony
- 17 -
because the victim cried when the prosecutor asked her questions. Learn, 396 Ill. App. 3d at 896-
97. Here, by contrast, J.O. answered all questions posed of her by both the State and the defense,
and her testimony on direct examination was accusatory. Specifically, J.O. testified that she
disclosed in her second interview at Shining Star that her “Papa” had done “a couple different
things” to her on “[d]ifferent days.” J.O. identified defendant in court as her Papa, and she
testified that she told the truth in her second interview. See Graves, 2021 IL App (5th) 200104,
¶ 40 (among the reasons for deeming Learn distinguishable was that the accuser testified she was
truthful in her out-of-court accusatory statement).
¶ 53 In presenting his argument, defendant distinguishes memory-loss cases from cases
where the prosecutor does not attempt to elicit incriminating testimony from the complaining
witness. Defendant’s argument is unconvincing. See Riggs, 2019 IL App (2d) 160991, ¶ 35
(rejecting the defendant’s argument that “a special set of rules applies” in memory-loss cases).
As mentioned above, the prosecutor indeed elicited incriminating testimony from J.O. that she
had accused her grandfather of different things and that such accusations were true.
¶ 54 For these reasons, we hold that the trial court did not abuse its discretion or
violate defendant’s confrontation rights by admitting into evidence J.O.’s February 10, 2021,
interview.
¶ 55 C. The Trial Court’s Personal Knowledge
¶ 56 Finally, defendant argues that the trial court denied him an impartial trial by
relying on personal knowledge and evidence outside the record. Defendant focuses on the
following comments the court made when finding him guilty:
“Having raised five children myself, I understand how children talk; how
they tell stories and at what different ages their communication skills develop.
- 18 -
The mere fact that [J.O.] didn’t make a disclosure in the first video does not mean
that something didn’t happen. It means that [J.O.] herself was not comfortable
telling the story at that time.”
Defendant requests that we reverse his convictions and remand for a new trial before a different
judge. The State responds that defendant forfeited this argument by failing to object
contemporaneously and then reraise the issue in a posttrial motion. Forfeiture aside, the State
argues that the court’s comments were proper. In his reply brief, defendant asks us not to deem
his claim forfeited, as he challenges the court’s conduct. Alternatively, defendant asks us to
review the claim pursuant to both prongs of the plain-error doctrine.
¶ 57 We deem defendant’s claim forfeited. We recognize that we may apply principles
of forfeiture less rigidly where a defendant challenges a trial court’s conduct. People v.
Dameron, 196 Ill. 2d 156, 171 (2001). However, by failing to challenge the isolated comments in
his posttrial motion, defendant deprived the trial court of the opportunity to clarify its remarks.
Accordingly, defendant must seek recourse through the plain-error doctrine. See People v.
Jackson, 409 Ill. App. 3d 631, 645-46 (2011) (reviewing for plain error a forfeited argument that
the trial court improperly relied on matters outside the record).
¶ 58 The plain-error doctrine applies in two situations. The first is “when ‘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.’ ” People
v. Sebby, 2017 IL 119445, ¶ 48 (quoting People v. Piatkowski, 225 Ill. 2d 551, 565 (2007)). The
other is “when ‘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.’ ” Sebby, 2017 IL 119445, ¶ 48 (quoting Piatkowski, 225 Ill. 2d at
- 19 -
565). Typically, the first step in the analysis is to determine whether a clear or obvious error
occurred. Sebby, 2017 IL 119445, ¶ 49.
¶ 59 In a bench trial, the trial court is permitted to consider its “own life and experience
in ruling on the evidence.” People v. Thomas, 377 Ill. App. 3d 950, 963 (2007). This is no different
from what jurors are instructed to do. See Illinois Pattern Jury Instructions, Criminal, No. 1.01
(approved April 30, 2021) (directing jurors to “consider all the evidence in the light of your own
observations and experience in life”). At the same time, the court is limited to the record before it
when ruling after a bench trial. People v. Harris, 57 Ill. 2d 228, 231 (1974). Thus, “ ‘[a]
determination made by the trial judge based upon a private investigation by the court or based
upon private knowledge of the court, untested by cross-examination, or any of the rules of evidence
constitutes a denial of due process of law.’ ” Dameron, 196 Ill. 2d at 171-72 (quoting People v.
Wallenberg, 24 Ill. 2d 350, 354 (1962)). We assume that the trial court considered only competent
evidence, and that assumption is overcome only where “the record affirmatively demonstrates the
contrary.” People v. Tye, 141 Ill. 2d 1, 26 (1990).
¶ 60 The line between permissibly relying on one’s own life experience versus
improperly relying on private knowledge may not always be clearly defined. Here, however, the
trial court’s comments fell on the right side of the line. One of the issues in this case was that
J.O. did not disclose defendant’s conduct when she was first interviewed at Shining Star.
Addressing that issue, the judge briefly mentioned her own experience as a mother. This was not
improper, and it was consistent with the expert opinions that Cash offered. See People v.
Hamilton, 361 Ill. App. 3d 836, 841, 849 (2005) (in a case where the parties disputed how the
defendant’s young daughter ended up in scalding bathwater, the appellate court determined that
the defendant was not prejudiced by the trial judge recalling how his own children entered tubs).
- 20 -
¶ 61 Defendant cites language from cases where courts remanded for new trials based
on trial judges relying on facts outside the record. Notably, defendant does not assert that the
circumstances here are factually analogous to any of those cases. It will suffice to say that
defendant identifies no case where a reviewing court remanded for a new trial based on
comments that were remotely similar to what the trial court said here. The court did not commit a
clear or obvious error, so defendant is not entitled to relief pursuant to the plain-error doctrine.
¶ 62 III. CONCLUSION
¶ 63 For the reasons stated, we reverse defendant’s conviction on count II. Pursuant to
Illinois Supreme Court Rule 615(b)(3) (eff. Jan. 1, 1967), we reduce the conviction on count II to
aggravated criminal sexual abuse (720 ILCS 5/11-1.60(b) (West 2020)), and we remand the
matter to the trial court for sentencing on that offense. We affirm the judgment in all other
respects.
¶ 64 Affirmed in part and reversed in part; cause remanded with directions.
- 21 -
People v. Johnson, 2023 IL App (4th) 220201Decision Under Review: Appeal from the Circuit Court of Lee County, No. 21-CF-36; the
Hon. Jacquelyn Dawn Ackert, Judge, presiding.
Attorneys James E. Chadd, Catherine K. Hart, and Roxanna A. Mason, of
for State Appellate Defender’s Office (Tamara Gilbert, law
Appellant: student), of Springfield, for appellant.
Attorneys Charles A. Boonstra, State’s Attorney, of Dixon (Patrick
for Delfino, David J. Robinson, and Rosario David Escalera Jr., of
Appellee: State’s Attorneys Appellate Prosecutor’s Office, of counsel), for
the People.
- 22 -