People v. Oats ( 2013 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Oats, 2013 IL App (5th) 110556
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption EDWARD OATS, SR., Defendant-Appellant.
District & No. Fifth District
Docket No. 5-11-0556
Filed August 6, 2013
Held Defendant’s life sentence for the predatory criminal sexual assault of his
(Note: This syllabus former girlfriend’s children was upheld, since the prerequisites of section
constitutes no part of 115-10 of the Code of Criminal Procedure for the admission of the
the opinion of the court hearsay statements of the children were satisfied, the representation
but has been prepared provided by defendant’s counsel was not deficient, his guilt was
by the Reporter of established beyond a reasonable doubt, and his sentence neither violated
Decisions for the the proportionality clause nor was cruel or unusual in view of the
convenience of the circumstances.
reader.)
Decision Under Appeal from the Circuit Court of Jefferson County, No. 03-CF-100; the
Review Hon. Terry H. Gamber, Judge, presiding.
Judgment Affirmed.
Counsel on Gilbert C. Sison, of Rosenblum, Schwartz, Rogers & Glass, P.C., of St.
Appeal Louis, Missouri, for appellant.
Douglas R. Hoffman, State’s Attorney, of Mt. Vernon (Patrick Delfino,
Stephen E. Norris, and Patrick D. Daly, all of State’s Attorneys Appellate
Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE GOLDENHERSH delivered the judgment of the court, with
opinion.
Presiding Justice Spomer and Justice Chapman concurred in the judgment
and opinion.
OPINION
¶1 Defendant, Edward Oats, Sr., was charged by information with six counts of predatory
criminal sexual assault of his ex-girlfriend’s three children. After a trial in the circuit court
of Jefferson County, the jury returned a verdict of guilty on three of the counts and acquittal
on the remaining three counts. Defendant was sentenced to a term of natural life
imprisonment. On appeal, defendant raises issues as to: (1) whether the circuit court properly
admitted hearsay statements with safeguards of reliability (725 ILCS 5/115-10 (West 2008)),
(2) whether he was proven guilty beyond a reasonable doubt, (3) whether he received
effective assistance of counsel, (4) whether his sentence violated the proportionality clause
of the Illinois Constitution, and (5) whether his sentence was cruel and unusual in violation
of the eighth amendment of the Constitution of the United States. We affirm.
¶2 FACTS
¶3 Sometime after the lunch period on March 7, 2003, Camille Jones, a substitute teacher,
was approached by a third-grade student, Tyeshia K. According to Jones, Tyeshia appeared
nervous and asked to speak privately out in the hallway. Tyeshia stated: “[M]y momma’s
boyfriend has been having sex with me, and he came last night. He’s coming back tonight,
and I’m sick of it.” Jones stated that she wanted to be “careful” in her response, so she
escorted Tyeshia into a room and gave her four sheets of paper with no other instruction than
to write down the date, address a letter to “Dear Miss Jones,” and “pour your heart out.”
¶4 After Tyeshia was finished writing, Jones escorted her to the administrative office and
gave the letter to assistant principal Ed Brashear and principal Linda Hanson, who then
notified the school social worker, Patricia Spicuzza. Spicuzza testified she stopped her
interview and called the Department of Children and Family Services (DCFS) hotline upon
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Tyeshia telling of being sexually touched by defendant. At the recommendation of the DCFS,
the police were notified. Tyeshia’s siblings, Tashirah D., in sixth grade, and Travis D., in
fifth grade, were held separately at school until police arrived and transported them
individually to the Amy Center, a child advocacy center.
¶5 At the Amy Center the minors were held in separate rooms where they could not
communicate with each other and interviewed individually. The interviews were conducted
by Detective McElroy with Vanessa Shaw of the DCFS present in the room. In an adjacent
room, Detective Gilbert observed the interviews through a closed-circuit television system
designed for such interviews. Detective Gilbert took notes to form police reports.
¶6 After the interviews, Detectives Gilbert and McElroy, with the permission of the mother,
searched the home. Gilbert testified that the bedroom where the offenses allegedly took place
was laid out as described by Tyeshia, including the location of a jar of Vaseline on a dresser.
¶7 Later the officers discovered that the recordings of the interviews did not have audio,
apparently due to failure to align the switches for the closed-circuit video. On March 11,
2003, four days after the initial interviews, a second set of interviews was conducted at the
Amy Center. The minors stayed in the custody of their mother in the interim.
¶8 On March 14, 2003, Deanna St. Germain, D.O., examined the minors at Union County
Hospital. Upon cross-examination, St. Germain admitted that there was no conclusive
physical evidence of abuse for any of the minors. St. Germain conceded that any of her
opinions that examination was consistent with abuse were based on the history given by each
minor.
¶9 The State filed notice that it intended to use hearsay statements pursuant to section 115-
10 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-10 (West 2008)). The court
held hearings over the course of several days, which included testimony from Ken McElroy,
Camille Jones, Vanessa Shaw, Patricia Spicuzza, and Linda Hanson. Shaw stated that the
only significant difference between the substance of the first and second interviews was that
Tyeshia described defendant as having blue boxer shorts in the first interview and red in the
second. Shaw believed that the minors were otherwise consistent in their statements and
demeanor. Shaw testified that besides the two interviews she did not speak with any of the
children regarding the incident at any other time.
¶ 10 Detective McElroy testified that his training for interviewing minors had instructed him
to ask open-ended questions and go where the child takes him. McElroy stated that he had
no discussions with the minors regarding the allegations between the interviews. He testified
that “pretty much everything was the same” for the first and second set of interviews and that
any differences were “very minute.”
¶ 11 At the conclusion of the hearing, the court found the hearsay statements of the minors
reliable. The court stated:
“The [c]ourt will grant the State’s request for notice pursuant to 725 ILCS 115-10 to
allow hearsay statements made by the three minors, T.K., T.D. and T.D., and the [c]ourt
finds the time, content and circumstances of those statements all provide sufficient
safeguards of reliability. The [c]ourt heard lengthy testimony. And this occurred at
school, and the substitute teacher, Ms. Jones, immediately took the children to the office.
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Ms. Hanson, Mr. Brashear were involved. Ms. Spicuzza was involved. The [c]ourt finds
certainly that sufficient safeguards of reliability were met. This occurred immediately
after Ms. Jones was made aware of the statements. So the [c]ourt will grant the State’s
request and will allow hearsay. Further, the State has stated that the children will be
available and will testify.”
¶ 12 At trial, each minor testified. Tyeshia testified defendant had made sexual contact with
her:
“Q. [Attorney for State:] *** Can you tell us the types of things that would happen
to you?
A. He would always rub his penis between my legs, and I would tell him that it
hurted, and then he would make me suck his penis. Then he would put Vaseline between
my legs and he would put Vaseline on his penis.
Q. Okay. And when you say he would rub his penis between your legs–
A. On my vagina.
Q. On your vagina. I don’t want to be too graphic, but was his penis–was it inside
your vagina?
A. No, but he would always try to put it in there, and I say, no, it hurt.
Q. So he would try to put it in–would put it in and it hurt, and would he stop?
A. Yes.
Q. Okay. And you said that he put his penis in your mouth?
A. Yes.”
In particular, Tyeshia recounted defendant having contact with her and Tashirah on some
bunk beds just after they were installed. Tyeshia described the defendant having “me suck
his penis” and that “he would rub my butt crack, but he would never put it in there.”
¶ 13 Tyeshia testified that defendant made sexual contact with her sister, Tashirah, but on
fewer occasions. Tyeshia related that through an open door into their mother’s bedroom, she
saw defendant play with Tashirah’s breasts, and she testified: “[Defendant] would always
like–they’d go in my mom’s room. [Defendant] would lay her on the bed, and he would
fondle with her, like put his penis between her legs and touch her.”
¶ 14 Tashirah D. testified that defendant had made sexual contact with her. Tashirah D. related
that it first started happening after the family moved into a house in Mt. Vernon:
“A. [Defendant] would bring us in there (the mother’s bedroom)–well, bring me in
there and, of course, had the door closed or whatever. He had his little Vaseline, and he
would take his penis, he would put it in my mouth.
Q. [Attorney for State:] It’s okay.
A. He would put it in our mouth, and then once he–he did–he tried to insert it in, but
it hurted so that didn’t happen.
Q. And I’m sorry. I’m going to kind of stop you here. You say put it–‘insert it in’?
A. Uh-huh.
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Q. Insert it in where?
A. Into my vagina.
Q. Okay. You said it hurt?
A. Uh-huh.
Q. Is that correct? So not to be too graphic, but his–his penis went inside–went in
your vagina?
A. Uh-huh.
Q. But it–it hurt?
A. Uh-huh.
Q. Did he–did he stop?
A. Yes.
Q. Did you tell him–how did this happen? How did he stop? At what point did he
stop? Do you know?
A. When I told him it hurt. I didn’t scream loud, but I kind of screamed a little bit.
Q. But it did go in your vagina at that time?
A. Yes.
Q. Okay. Did he place his penis anywhere else?
A. Not that I can remember.
Q. Okay. How often would this happen?
A. Like twice a week for me anyways.
Q. Okay. Did it happen more or less to Travis and Tyeshia?
A. It happened more to Tyeshia, less to me and my brother.”
¶ 15 Travis testified that defendant made him perform oral sex on him. Travis stated,
“[Defendant] tried to put it in my butt, but it wouldn’t fit.” Travis testified that he saw
defendant make Tyeshia have oral sex with defendant in their mother’s bedroom. Travis also
testified that defendant had made Tashirah perform oral sex and placed his penis in her
vagina while in their mother’s bedroom. Afterwards, defendant would take them to Walmart
or out for ice cream.
¶ 16 At trial, defendant testified in his own defense and denied any alleged sexual conduct.
Defendant testified that he never had a standing commitment to babysit the minors, though
he would watch them on occasion when no other option was available. Defendant testified
that he picked up the minors on only three occasions. Moreover, his relationship with the
minors’ mother ended in 2002, and the last time he was at the house was approximately two
to three weeks before the alleged abuse was reported. Defendant first found out about the
allegations when he was arrested. Defendant described and displayed birthmarks to the jury.
¶ 17 The jury returned a verdict finding defendant guilty of three of the six counts. Defendant
was found guilty of both counts of predatory criminal sexual assault of Tyeshia K. The jury
found defendant guilty of the charge based on vaginal penetration of Tashirah D., but
acquitted him on the charge based on anal penetration of Tashirah D. Defendant was
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acquitted on the counts based on oral and anal penetration of Travis D. The circuit court
entered judgment on the verdict and sentenced defendant to a term of natural life
imprisonment. Defendant appeals.
¶ 18 ANALYSIS
¶ 19 I.
¶ 20 SECTION 115-10
¶ 21 Defendant contends that the trial court erred by admitting hearsay of the minors’
statements. The Code of Criminal Procedure of 1963 allows for admission of hearsay
statements of sexual acts perpetrated on a minor under the age of 13 under certain
circumstances. 725 ILCS 5/115-10(a), (b)(3) (West 2008). In order to apply the exception,
the court must find 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 2008). The State has the burden of proving that the prerequisites
of section 115-10 are met and that the statements were not the result of prompting or
manipulation. People v. Garcia, 2012 IL App (1st) 103590, ¶ 96, 981 N.E.2d 1025.
¶ 22 Defendant contends that the statements were unreliable. Defendant points to statements
of several witnesses, including school personnel and responding law enforcement, Tyeshia’s
letter written at the instruction of Jones, and both the first and second interviews of each of
the minors at the Amy Center. Both of the interviews, the one with audio and the one
without, were played to the jury. At the heart of the concern is the lack of an audio recording
of the first interview.
¶ 23 Defendant argues that the failure to properly record the first interview resulted in a lack
of adequate safeguards. Defendant concedes that the omission of audio was inadvertent, but
argues that the lack of audio recording creates doubt as to whether the minors were
influenced by suggestion. Defendant points out that there is no record of the precise
questions and answers of the initial interview.
¶ 24 The lack of an audio recording of the initial interview leads this court to review with
great scrutiny the determination to admit the statements. As our Illinois Supreme Court has
recognized, the recording of interviews of minors claiming sexual abuse is “important
because children, especially younger children, are ‘particularly susceptible’ to suggestion by
adults.” People v. Miles, 351 Ill. App. 3d 857, 866, 815 N.E.2d 37, 45 (2004) (quoting
People v. Zwart, 151 Ill. 2d 37, 45, 600 N.E.2d 1169, 1172 (1992)). The State has the burden
of proving the reliability of the statements. Garcia, 2012 IL App (1st) 103590, ¶ 96, 981
N.E.2d 1025. Relying on this burden, defendant points to the Illinois Supreme Court’s decree
that a “trial court should not presume from a silent record that suggestive interview
techniques were not used.” Zwart, 151 Ill. 2d at 45, 600 N.E.2d at 1172. The record,
however, is far from silent.
¶ 25 The determination of reliability by a trial court at a section 115-10 hearing requires an
evaluation of the totality of the circumstances. Garcia, 2012 IL App (1st) 103590, ¶ 95, 981
N.E.2d 1025. In evaluating whether the time, content, and circumstances of a statement
provide sufficient safeguards of reliability, courts have looked to several factors, including
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“(1) the spontaneity and consistent repetition of the statement; (2) the mental state of the
child in giving the statement; (3) the use of terminology not expected in a child of
comparable age; and (4) the lack of a motive to fabricate.” People v. Bowen, 183 Ill. 2d 103,
120, 699 N.E.2d 577, 586 (1998).
¶ 26 Defendant points to People v. Miles, where the custodial interview of a minor was not
recorded. People v. Miles, 351 Ill. App. 3d 857, 866, 815 N.E.2d 37, 45 (2004). Miles began
by noting that when a minor’s account of abuse is not recorded verbatim, his statement will
be viewed with “skepticism” because of susceptibility to adult prompting or manipulation.
Miles, 351 Ill. App. 3d at 866, 815 N.E.2d at 45 (citing People v. Simpkins, 297 Ill. App. 3d
668, 677, 697 N.E.2d 302, 308 (1998)). As such, when the State fails to record such
interviews it runs the risk of having statements of the minor held inadmissible. In Miles, the
State “chose not to record” the minor’s interview. Miles, 351 Ill. App. 3d at 866, 815 N.E.2d
at 45.
¶ 27 In reversing the trial court’s finding of reliability, Miles looked to the totality of the
circumstances. Miles noted that at the section 115-10 hearing the minor’s mother testified
that the hospital’s social worker talked to the minor on the evening she reported the abuse,
but no statements made to the social worker were presented for admission at the section 115-
10 hearing. At trial, the hospital’s social worker could not even recall speaking with the
minor. As such, there was no record whatsoever of the questions or answers of that
interview. The Miles court commented that “[w]ithout any evidence of the substance of a
previous interview, courts normally consider the circumstances of the subsequent interview
to be unreliable.” Miles, 351 Ill. App. 3d at 866, 815 N.E.2d at 45; Zwart, 151 Ill. 2d at 44,
600 N.E.2d at 1172.
¶ 28 After conducting a section 115-10 hearing, the trial court in Miles had found statements
by the mother and an interviewing detective were reliable. Miles found that the time, content,
and circumstances of the hearsay relayed by the mother and the detective failed to display
safeguards of reliability. Pointing to the specifics of the mother’s testimony, Miles found
evidence of prompting. Miles, 351 Ill. App. 3d at 867, 815 N.E.2d at 45. In addition, the
mother was unable to consistently describe circumstances of the statements made by the
minor. Furthermore, the detective could not recall many of the questions that she had asked
the minor, and those questions that the detective had written down were troubling in their
leading nature and focus on the defendant.
¶ 29 In contrast to Miles, the time, content, and circumstances here display safeguards of
reliability. Unlike Miles, at the section 115-10 hearing the State presented a detailed
progression of how the minors were handled in a manner to protect against suggestion, from
Tyeshia’s contacting a teacher at school, to the school administrators overseeing the contact
of law enforcement, to the transport and interviews of each minor individually at the Amy
Center. In Miles, the testimony of the interviewing detective and the mother indicates that
both used prompting, leading questions. In contrast, defendant’s arguments do not derive
from any indication of prompting or suggestion in the second interviews at the Amy Center.
Instead, the concerns stem from the lack of an audio recording of the initial interview.
¶ 30 Unlike Miles, the interviewing detective and the DCFS worker both testified at the
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section 115-10 hearing that for each minor the second interview was substantially the same
as the first. Defendant’s claim that better evidence of the original interviews should have
been presented, along with more detailed inquiry into the questions asked at the first set of
interviews, does not undermine the safeguards. In contrast to the interviews by the social
worker and the detective in Miles, the court was presented with a record of the substance of
the original interviews that indicated that sufficient safeguards had been followed and that
the statements of the minors were not the product of suggestion. We stand by Miles’s prudent
recommendation to record interviews of minors. Whenever the State fails to follow this
recommendation, the burden it faces in proving the statements to be reliable is certainly made
more difficult, and such statements are bound to be met with, in the words of Miles, more
skepticism. In the end, the question presented by the lack of a proper recording of the first
interview is not a matter of intent of the State, but of the reliability of the statements of the
minors. The mere inadvertence to properly record the first interview does not excuse the
State from the burden of proving the statements to be reliable.
¶ 31 II.
¶ 32 EFFECTIVE ASSISTANCE OF COUNSEL
¶ 33 Paradoxically, in arguing that the statements of the minors should not have been admitted
under section 115-10, defendant claims that he was prejudiced because the admission of the
interviews of the minors resulted in an unnecessary repetition of the allegations against him.
See People v. Baggett, 185 Ill. App. 3d 1007, 1016, 541 N.E.2d 1266, 1272 (1989); People
v. Anderson, 225 Ill. App. 3d 636, 647, 587 N.E.2d 1050, 1059 (1992). Given defendant’s
assertion on appeal that the interviews were inconsistent with their trial testimony, the
strategy of trial counsel to let the two sets of interviews be compared by the jury seems not
only sound, but a most persuasive strategy to represent defendant.
¶ 34 Defendant contends that his trial counsel was ineffective, having committed several
errors. The focus of defendant’s contention is alleged failures in examination of the minors.
The first among these was not confronting the minors with evidence of defendant’s
birthmarks. Defendant relies on an ostensible admission by trial counsel that she could not
recall whether she asked the minors about the birthmarks during cross-examination and that
if she did not, she “probably should have asked.” Nonetheless, defendant’s reliance on this
ostensible admission fails to account for trial counsel’s explanation that, regardless of cross-
examination, she effectively utilized the failure of the minors to mention the birthmarks
during the police interviews. As a matter of persuasive representation, trial counsel attacked
the minors’ credibility for failure to identify the birthmarks in closing argument. Indeed, the
strategy of not asking the minors about whether defendant had birthmarks, or even the
appearance of defendant’s body, was sound. Among the potential drawbacks of the approach
advocated by defendant on appeal, cross-examining the minors on the matter would have run
the risk of undermining the argument by giving the minors an opportunity to explain away
their omission during the police interviews.
¶ 35 Similarly, defendant contends that trial counsel failed to use the prior videotaped
interviews for impeachment during cross-examination of the minors. On appeal, defendant
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contends that a simple comparison between trial testimony and the interviews reveals a
number of inconsistencies that were not explored. Although defendant does not list the
inconsistencies, his trial counsel argued that the courtroom testimony was inconsistent with
the videotaped interviews in closing argument. The merits of cross-examining the minors
regarding any discrepancy are, at best, questionable. Moreover, the approach defendant
advocates on appeal would have given the minors a chance to explain away the
inconsistencies. See, e.g., In re Commitment of Dodge, 2013 IL App (1st) 113603, ¶ 10, 989
N.E.2d 1159. Trial counsel’s handling of the cross-examinations was a matter of trial strategy
and well within the range of professional assistance. People v. Pecoraro, 175 Ill. 2d 294,
326, 677 N.E.2d 875, 891 (1997).
¶ 36 Defendant alleges several other errors by his trial counsel. For instance, defendant
contends that his trial counsel failed to examine Detective McElroy regarding statements the
detective allegedly made of a threatening nature to defendant’s girlfriend, but defendant fails
to show the relevance of the statements or how he was prejudiced by the lack of such an
inquiry. Defendant also contends that trial counsel was unprepared and failed to investigate
the case. Specifically, defendant contends that trial counsel failed to interview Mary and Paul
Bolling. Although defendant admits that the Bollings were apparently uncooperative, he
asserts that they “were present with the children around the time these allegations were
made.” Defendant’s allegations show neither a lack of diligence in investigation nor a failure
to present a possible alibi. See, e.g., People v. Guest, 166 Ill. 2d 381, 402, 655 N.E.2d 873,
883 (1995).
¶ 37 In order to support a claim for ineffective assistance of counsel, a defendant must show
that his counsel was ineffective and that the conduct of his counsel was deficient and that he
was prejudiced by this conduct. Strickland v. Washington, 466 U.S. 668, 686 (1984); People
v. Albanese, 104 Ill. 2d 504, 525, 473 N.E.2d 1246, 1255 (1984). Defendant fails to establish
that the representation by his trial counsel was in error or deficient. Indeed, the record reflects
defendant was afforded professional representation.
¶ 38 III.
¶ 39 SUFFICIENCY OF THE EVIDENCE
¶ 40 Defendant contends that the evidence was insufficient to prove his guilt beyond a
reasonable doubt. Defendant points out the lack of physical evidence of penetration, a point
well established by his trial counsel in cross-examining Dr. St. Germain. As Dr. St. Germain
testified, however, there was a delay of a few days between the alleged abuse and the
examinations. Defendant also points to the absence of forensic evidence, but, as the State
aptly asserts, this was not a case where forensic evidence was likely to be found. Instead, as
the State admits, this case rested upon the testimony of the minors.
¶ 41 Defendant raises contentions that go to the weight and credibility of the testimony of the
minors, but do not undermine the sufficiency of the evidence against him. He contends that
the testimony of the minors at trial differed from that of the original interviews, but this was
a matter of credibility. Defendant also contends that Tyeshia and Tashirah failed to establish
exactly when these acts took place. Tashirah testified, however, that the abuse began shortly
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after the family moved to Mt. Vernon, and Tyeshia described the abuse as taking place there.
Defendant was not misled in his defense, nor was his defense otherwise materially affected
by the timing described in the State’s case. See People v. Thrasher, 383 Ill. App. 3d 363,
368, 890 N.E.2d 715, 720 (2008).
¶ 42 Several of the arguments raised by defendant on appeal go to specific counts. For
instance, defendant asserts that Tyeshia herself unequivocally testified that there was no
vaginal penetration. The totality of Tyeshia’s testimony, however, supports a finding of
vaginal penetration. Tyeshia testified that defendant would put Vaseline between her legs and
“on” her vagina. Upon further questioning, Tyeshia stated that defendant would not rub his
penis “inside” her vagina. Nonetheless, Tyeshia testified that defendant “would always try
to put it in there.” Tyeshia’s description could readily be seen as an abatement or withdrawal
after her complaint that “it hurt” upon penetration.
¶ 43 Similarly, defendant asserts that Tashirah’s testimony regarding vaginal penetration was
equivocal. Like Tyeshia, Tashirah testified that defendant stopped further penetration when
she “told him it hurt.”
¶ 44 The testimony of both victims was sufficient to support a finding of vaginal penetration.
First, Illinois has long recognized that any intrusion, however slight, constitutes penetration.
People v. Franzen, 251 Ill. App. 3d 813, 823, 622 N.E.2d 877, 886 (1993). Thus, when the
victims testified that defendant rubbed his penis “on” their vaginal region for a prolonged
period of time, penetration occurred. See People v. W.T., 255 Ill. App. 3d 335, 347, 626
N.E.2d 747, 755 (1994) (head of penis on labia constituted penetration). Furthermore, both
Tyeshia and Tashirah testified that defendant had further penetrated into their vaginal organs,
but stopped when they told him the insertion hurt. Thus, if the testimony of Tyeshia and
Tashirah is not parsed as advocated by defendant, a deeper penetration occurred–albeit for
a shorter duration.
¶ 45 IV.
¶ 46 CONSTITUTIONAL ISSUES
¶ 47 Defendant was sentenced to a term of life imprisonment pursuant to the Criminal Code
of 1961 (Code) (720 ILCS 5/12-14.1(b)(1.2) (West 2008) (renumbered 720 ILCS 5/11-
1.40(b)(1.2) (eff. July 1, 2011))), which provides:
“A person convicted of predatory criminal sexual assault of a child committed against
2 or more persons regardless of whether the offenses occurred as the result of the same
act or of several related or unrelated acts shall be sentenced to a term of natural life
imprisonment.”
Defendant contends that his sentence of life imprisonment violates both the Constitution of
the United States and that of the State of Illinois.
¶ 48 The Illinois Constitution requires penalties to be proportionate to the crime. Article I of
the Illinois Constitution provides that “[a]ll penalties shall be determined both according to
the seriousness of the offense and with the objective of restoring the offender to useful
citizenship.” Ill. Const. 1970, art. I, § 11.
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¶ 49 The question of whether the Code comports with the proportionate penalties clause of
the Illinois Constitution has already been answered. People v. Huddleston, 212 Ill. 2d 107,
130, 816 N.E.2d 322, 335 (2004). In Huddleston, the defendant was convicted of three
counts of predatory criminal sexual assault, but the trial court found that the mandate of a life
sentence was unconstitutional as applied. In reversing the trial court, Huddleston found that
the legislature’s prescription of a mandatory life sentence for predatory criminal sexual
assault passed the tests for proportionality. Huddleston, 212 Ill. 2d at 130, 816 N.E.2d at 335.
In detail, Huddleston described how a mandatory life sentence for multiple criminal sexual
abuse of a child passed the first test of proportionality of not being cruel, degrading, or so
wholly disproportionate to the offense so as to shock the moral sense of the community. In
short, Huddleston concluded that a mandatory life sentence was in line with the moral sense
of the community and served the legitimate purposes of “ensuring that those who commit
sexual acts with multiple victims will not have the opportunity to reoffend.” Huddleston, 212
Ill. 2d at 134, 816 N.E.2d at 338.
¶ 50 Huddleston turned to the enactments of other legislatures as proof of the proportionality
of the response of Illinois. In particular, Huddleston noted that “[w]hile several state statutes
authorize a life sentence–with or without parole–for a perpetrator’s first sexual assault of a
child, at least five states, including Illinois, would require a sentence of mandatory life
imprisonment, under certain circumstances.” (Emphases in original.) Huddleston, 212 Ill. 2d
at 140, 816 N.E.2d at 341 (citing Ohio Rev. Code Ann. § 2907.02(B) (LexisNexis 2003); La.
Rev. Stat. Ann. § 14:42 (West Supp. 2004); Adaway v. State, 864 So. 2d 36, 37-38 (Fla. Dist.
Ct. App. 2003) (Fla. Stat. §§ 794.011(2), 775.082(1) (1999)); State v. Higginbottom, 324
S.E.2d 834, 837 (N.C. 1985)); see State v. Green, 502 S.E.2d 819, 828 (N.C. 1998) (noting
that statute in Higginbottom had been superceded but finding that mandatory life sentence
for 13-year-old for commission of first-degree sexual offense is not cruel or unusual).
¶ 51 Defendant attempts to distinguish Huddleston from the Code as applied to him.
Defendant’s arguments misconstrue Huddleston. The discussion of a prior sexual offense and
possession of pornographic materials in Huddleston was in the context of a broader
discussion of the propensity of sex offenders to repeat. Moreover, Huddleston pointed to this
activity to express incredulity regarding the defendant’s expert, whose recommendation it
found perverted the purpose of risk assessment. In the end, Huddleston found that the
mandatory life sentence was justified for the multiple sexual abuses of the “latter two
victims” for his current prosecution. Huddleston, 212 Ill. 2d at 142, 816 N.E.2d at 342.
Similarly, defendant in the case at hand was convicted of sexually abusing two children. See
People v. Hernandez, 382 Ill. App. 3d 726, 728, 888 N.E.2d 1200, 1203 (2008) (life sentence
for sex offender was proportionate when only two victims). Nothing in the case at hand
undermines the observation of Huddleston that mandating a life sentence for the crimes
committed by defendant was the legislature’s measured response to the “propensity of sex
offenders to repeat.” Huddleston, 212 Ill. 2d at 138, 816 N.E.2d at 340; see People v. Ross,
395 Ill. App. 3d 660, 683, 917 N.E.2d 1111, 1132 (2009).
¶ 52 Defendant also contends that, unlike Huddleston, there is scant evidence that the victims
suffered from injuries. Again, the critical facts of Huddleston are not distinct. As in
Huddleston, the testimony of the children displayed that they were well aware that they had
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been violated. Similarly, this court fails “to see how their prognosis is any better than other
sexual assault victims.” Huddleston, 212 Ill. 2d at 144, 816 N.E.2d at 343.
¶ 53 Defendant also contends that a mandatory life sentence does not comport with the
Constitution of the United States. The eighth amendment of the Constitution of the United
States provides that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted.” U.S. Const., amend. VIII; see Graham v. Florida,
560 U.S. 48, ___, 130 S. Ct. 2011, 2021 (2010).
¶ 54 Defendant points to the framework for categorical analysis of life sentences provided by
Graham. Graham, 560 U.S. at ___, 130 S. Ct. at 2021. In Graham, a mandatory life sentence
without parole imposed on a juvenile nonhomicide offender was invalidated as categorically
disproportionate. Graham set forth the following framework:
“The Court first considers ‘objective indicia of society’s standards, as expressed in
legislative enactments and state practice’ to determine whether there is a national
consensus against the sentencing practice at issue. [Citation.] Next, guided by ‘the
standards elaborated by controlling precedents and by the Court’s own understanding and
interpretation of the Eighth Amendment’s text, history, meaning, and purpose,’ [citation],
the Court must determine in the exercise of its own independent judgment whether the
punishment in question violates the Constitution. [Citation.]” Graham, 560 U.S. at ___,
130 S. Ct. at 2022.
¶ 55 The categorical analysis of the proportionality of a life sentence in Graham was centered
on the defendant’s status as a minor. Graham, 560 U.S. at ___, 130 S. Ct. at 2032. Although
Graham provides a framework for analyzing the proportionality of a sentence, its holding
does not extend to life sentences imposed on adults. The disproportionality of the life
sentence was focused on the defendant’s status as a juvenile. Graham found the sentence
would incarcerate a juvenile, with no hope for parole, before he had been given a chance to
mature. Graham, 560 U.S. at ___, 130 S. Ct. at 2032.
¶ 56 Even before Graham, Illinois recognized that mandatory life sentences for juveniles
could be disproportionate. People v. Miller, 202 Ill. 2d 328, 341, 781 N.E.2d 300, 308
(2002). After Graham, Illinois has found that mandatory life sentences for adults do not raise
the same concerns as such sentences for juveniles. See People v. Brown, 2012 IL App (1st)
091940, ¶ 71, 967 N.E.2d 1004 (finding imposition of mandatory life sentence on mentally
impaired adult was proportionate).
¶ 57 In addition to those jurisdictions referred to in Huddleston, the State points to multiple
states that permit life sentences for a first conviction of a sex offense. Ala. Code § 13A-6-61
(2012); Idaho Code Ann. § 18-1508 (West 2012); Md. Code Ann., Crim. Law § 3-303 (West
2012); Mo. Ann. Stat. § 566.030 (West 2012); Mont. Code Ann. § 45-5-502 (2012); Utah
Code Ann. § 76-5-404.1 (West 2012). Defendant points out that, compared to Illinois, these
jurisdictions leave the severity of the sentence to the discretion of the court. Nonetheless,
these statutory schemes cover an array of sex offenses and indicate that a life term is
appropriate in cases of sexual abuse of children. Furthermore, unlike defendant who was
convicted of sexual abuse of two victims, these statutes generally provide that a life sentence
is appropriate for a single offense. See Ala. Code § 13A-5-6(a)(4), (d) (2012) (Class A felony
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criminal sex offense involving a child is punishable by mandatory imprisonment for at least
20 years, and “when the defendant was 21 years of age or older and the victim was six years
of age or less at the time the offense was committed, the defendant shall be sentenced to life
imprisonment without the possibility of parole.” (Emphasis added.)); Idaho Code Ann. § 18-
1508 (West 2012) (for lewd conduct with minor under 16 “shall be guilty of a felony and
shall be imprisoned in the state prison for a term of not more than life”); Mo. Ann. Stat.
§ 566.030.2(2) (West 2012) (“Forcible rape or an attempt to commit forcible rape” is a
felony requiring a minimum sentence of five years’ imprisonment unless: “(2) The victim
is a child less than twelve years of age, in which case the required term of imprisonment is
life imprisonment without eligibility for probation or parole until the defendant has served
not less than thirty years of such sentence or unless the defendant has reached the age of
seventy-five years and has served at least fifteen years of such sentence, unless such forcible
rape is described under subdivision (3) of this subsection.”); Mont. Code Ann. § 45-5-502(3)
(2012) (for sexual assault, “(3) If the victim is less than 16 years old and the offender is 3 or
more years older than the victim or if the offender inflicts bodily injury upon anyone in the
course of committing sexual assault, the offender shall be punished by life imprisonment or
by imprisonment in the state prison for a term of not less than 4 years”); Utah Code Ann.
§ 76-5-404.1(5)(b), (5)(c) (West 2012) (“(5) Aggravated sexual abuse of a child is a first[-
]degree felony punishable by a term of imprisonment of *** (b) *** life without parole, if
the trier of fact finds that during the course of the commission of the aggravated sexual abuse
of a child the defendant caused serious bodily injury to another; or (c) life without parole, if
the trier of fact finds that at the time of the commission of the aggravated sexual abuse of a
child, the defendant was previously convicted of a grievous sexual offense.”); see State v.
Finchum, 2012 UT App 331, 290 P.3d 938 (per curiam) (sentence of 15 years to life for two
counts of aggravated sex abuse); Md. Code Ann., Crim. Law § 3-303(d)(4)(i) (West 2012)
(a person 18 years or older who sexually abuses someone under 13 years of age “is guilty of
the felony of rape in the first degree and on conviction is subject to imprisonment for not less
than 25 years and not exceeding life without the possibility of parole”).
¶ 58 Moreover, defendant’s arguments regarding national consensus largely rest on a
distinction between repeat offenders who have been previously convicted and those who
committed multiple offenses but had no prior convictions. Several states, and the federal
code, mandate life sentences for subsequent convictions. See, e.g., 18 U.S.C. § 2241(c)
(2012) (mandatory life for sex offender with previous conviction); Iowa Code Ann. §§ 902.1,
902.14(1) (West 2012) (mandatory life without parole as a Class A felony); Texas Penal
Code Ann. § 12.42(c)(2) (West 2012) (mandating life sentence for second conviction of
indecency with a child); Mich. Comp. Laws Ann. § 750.520b (West 2012) (life without
parole). Defendant contends that this reflecting distinction is necessary in order to recognize
the potential for rehabilitation. This, however, ignores the tendency of sex offenders to repeat
their offenses and the “frightening and high risk of recidivism.” McKune v. Lile, 536 U.S.
24, 34 (2002). Furthermore, the provision of the Code mandating a life sentence is not
triggered by a range of multiple sex offenses, such as child pornography or lewd conduct.
Instead, the applicable provision of the Code mandates a life sentence only if there is
predatory criminal sexual assault of two or more children. 720 ILCS 5/11-1.40(b)(1.2) (West
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2012).
¶ 59 Nonetheless, as Huddleston observed, Illinois is not alone in imposing a mandatory life
sentence for the first conviction. Huddleston, 212 Ill. 2d at 140, 816 N.E.2d at 341. In
particular, Huddleston pointed to the scheme of Louisiana. After Huddleston, the Supreme
Court reviewed the statutory scheme of Louisiana–leaving Louisiana’s mandatory life
sentence for sex offenders intact. Kennedy v. Louisiana, 554 U.S. 407 (2008).
¶ 60 In Kennedy, Louisiana imposed the death penalty on a defendant convicted of raping a
child. The Louisiana statute in question provided that a defendant convicted of raping a child
under the age of 12 years shall be punished either by death or by life imprisonment at hard
labor without benefit of parole. Kennedy, 554 U.S. at 416; La. Rev. Stat. Ann. § 14:42 (West
1997). Kennedy held that the death penalty was not a proportionate response and found that
“the death penalty should not be expanded to instances where the victim’s life was not
taken.” Kennedy, 554 U.S. at 437.
¶ 61 Kennedy resulted in the portion of the Louisiana statute providing for the imposition of
the death penalty being stricken, but the mandatory life sentence remained intact. Indeed, on
remand, Kennedy was resentenced to life imprisonment at hard labor without benefit of
parole. State v. Kennedy, 994 So. 2d 1287, 1288 (La. 2008) (per curiam). After Kennedy,
Louisiana has continued to impose mandatory life sentences when a child has been raped.
See State v. Davis, 995 So. 2d 1211, 1212 (La. 2008) (per curiam); State v. Hough, 103 So.
3d 477, 479 (La. Ct. App. 2012). At no point did Kennedy criticize the propriety of a
mandatory life sentence for a first-time sex offense. If not a tacit approval of mandatory life
sentences for a single sex offense, Kennedy is incongruous with defendant’s assertion that
such mandates are contrary to national consensus.
¶ 62 Similarly, an independent examination of the sentence reveals it to be neither cruel nor
unusual. Graham, 560 U.S. at ___, 130 S. Ct. at 2021. Defendant was convicted of sexual
abuse of two children. The penological goals more fully examined in Huddleston justify
defendant’s sentence.
¶ 63 Accordingly, the judgment of the circuit court is hereby affirmed.
¶ 64 Affirmed.
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