People v. Woldenkidan , 2021 IL App (2d) 190683-U ( 2021 )

2021 IL App (2d) 190683-UNo. 2-19-0683
Order filed December 2, 2021
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(l).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kendall County.
)
Plaintiff-Appellee, )
)
v. ) No. 17-CF-283
)
GEBREMEDHIN WOLDENKIDAN, ) Honorable
) Robert P. Pilmer,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
PRESIDING JUSTICE BRIDGES delivered the judgment of the court.
Justices McLaren and Hutchinson concurred in the judgment.
ORDER
¶1 Held: There was sufficient evidence to prove defendant guilty of criminal sexual assault
beyond a reasonable doubt. Also, the prosecutor’s remarks during rebuttal closing
argument were not improper. Therefore, we affirm.
¶2 Following a jury trial, defendant, Gebremedhin Woldenkidan, was convicted of criminal
sexual assault (720 ILCS 5/11-1.20(a)(1) (West 2016)) and criminal sexual abuse (720 ILCS 5/11-
1.50(a)(1) (West 2016)). On appeal, he argues that he was not proven guilty beyond a reasonable
doubt of criminal sexual assault and that the prosecutor made improper remarks during rebuttal
closing argument. We affirm.
2021 IL App (2d) 190683-U¶3 I. BACKGROUND
¶4 On October 23, 2017, defendant was charged by indictment with two counts of criminal
sexual assault (counts I and II) and two counts of criminal sexual abuse (counts III and IV) for
events that occurred on July 15, 2016, with T.G. Count I alleged that defendant committed an act
of sexual penetration by the use of force, in that defendant knowingly placed his penis inside T.G.’s
sex organ by the use of force. Count II was identical except that it alleged the threat of force rather
than the use of force. Count III alleged that defendant committed an act of sexual conduct with
T.G. by knowingly touching T.G.’s breast by the use of force for the purposes of defendant’s
sexual arousal or gratification. Count IV alleged the same facts as count III but alleged the threat
of force instead of the use of force.
¶5 Defendant filed a motion to suppress statements on August 29, 2018, which the trial court
denied on November 16, 2018.
¶6 Defendant’s jury trial began on May 20, 2019. According to evidence presented by the
State, T.G. underwent a hospital forensic examination on the night of July 15, 2016, and vaginal
swabs were taken as part of a rape kit. The external examination did not reveal any marks on T.G.’s
body or trauma to her vaginal area, and the internal exam revealed no cervical tenderness, meaning
that there was no indication of whether any sexual activity was consensual or not. Testing of the
vaginal swabs at the Illinois State Police Forensic Lab indicated the presence of semen. A DNA
analysis on the swabs was compared to a buccal swab collected from defendant, and the DNA was
determined to have come from him, as the chance of the DNA profile was one in 25 decillion
people.
¶7 Bella Lucas, T.G.’s mother, testified as follows. She was from Mongolia, and in July 2016,
she was living in Oswego with her then husband and her two children, T.G. and D.G., who went
-2-
2021 IL App (2d) 190683-Uby the nicknames “S.” and “D.” T.G. had seizures her whole life and also suffered from anxiety,
which caused her to freeze in stressful situations. T.G. had been seeing doctors for her condition.
¶8 Lucas met defendant through her former mother-in-law, who lived in the same retirement
housing as defendant in Wheaton. Lucas was looking for someone to help pull weeds from her
yard, and her former mother-in-law said that Lucas could hire defendant. When defendant worked
for her, Lucas would pick him up in front of his building and drive him to her house. They
communicated through body language, and she paid him $10 an hour. The first time he came over,
he worked in the yard and then slept over on the couch downstairs. Defendant did more work the
next day before Lucas drove him back. At one point, she used T.G.’s phone to call defendant’s
daughter so that they could discuss what day and time defendant would work next.
¶9 On July 15, 2016, Lucas again brought defendant to work in her yard. T.G. came to the
kitchen at about 11 a.m. and started cooking. Lucas’s husband and D.G. were not at home, and
defendant was outside. Lucas left to do some cleaning work and came back about an hour later.
She helped defendant in the yard for a while and drove him back to his apartment at 3 or 4 p.m.
When Lucas returned home, T.G. said that she wanted to talk to her. Lucas or another family
member then contacted the police.
¶ 10 T.G. provided the following testimony. She was 24 years old and in 2016 lived with Lucas,
her stepfather, and her younger sister. They also had two dogs. T.G. had epilepsy and anxiety
related to her epilepsy. If there was a stressful event, she panicked and froze up.
¶ 11 In the summer of 2016, Lucas hired defendant to do yard work. The first day, he spent the
night at their house. T.G. heard him speak in his native language, and he would say some English
words like “yes” and “no.” When T.G. woke up on July 15, 2016, her family members were in the
house, and defendant was doing yard work. Sometime during the morning, T.G.’s stepfather and
-3-
2021 IL App (2d) 190683-Usister left the house. T.G. cooked breakfast, and Lucas left shortly before T.G. finished her meal.
Defendant was also eating at the kitchen table. T.G. took her plate to the sink to wash it, and
defendant followed her with his dishes. T.G. moved out of the way towards the stove. Defendant
put his dishes down and walked towards her. She felt scared and picked up her Chihuahua.
Defendant pushed her towards the stove with his body, with the dog between them. T.G. noticed
that the dog was getting uncomfortable and was scared for it, so she put it down. Defendant then
kissed her on the lips and said, “I love you” in English. She tried to move away, but he started
grabbing her breast.
¶ 12 T.G. kept saying no and tried walking towards the door to the garage. When she passed by
the couch, defendant pushed her onto the couch with his body. T.G. felt scared and confused. T.G.
was wearing a skirt, and defendant opened her legs and started grabbing her underwear. He also
touched her breast outside her shirt. Defendant then started taking off her underwear. T.G. did not
scream or physically resist defendant because she was frightened and froze in the stressful
situation. Defendant was standing up, and he took off his pants and underwear and started having
intercourse with her by inserting his penis into her vagina. T.G. kept saying no.
¶ 13 The intercourse lasted a couple of minutes, and defendant then put his clothing back on
and went outside to resume working. T.G. sat on the couch for five minutes, frozen and trying to
understand what happened. She put her underwear back on and went upstairs. She owned a cell
phone but did not call Lucas because she did not know where her cell phone was at the time and
did not know where Lucas was. She did not run to a neighbor’s house, because she wanted her
mother. T.G. took a shower and later that evening told Lucas what had transpired. She then spoke
to the police and went to the hospital for a medical examination. T.G. denied having ever
previously kissed defendant, telling him that she loved him, kissing him, or having consensual sex
-4-
2021 IL App (2d) 190683-Uwith him. On the day in question, she did not tell the detective or the hospital nurse that she suffered
from epilepsy and anxiety or that she froze in stressful situations, even though these were an
important part of why she did not fight back against defendant. T.G. agreed that defendant was a
short, skinny old man. She was 5’3” and 165 pounds.
¶ 14 At the end of July, T.G. went to Mongolia with Lucas for 42 days. When she came back,
she saw missed calls and seven voicemails on her phone. She recognized defendant’s voice on the
messages, and she identified one that was played in open court. The other voicemails were
basically the same and said hello, good morning, and how are you, and they referred to her as S.
¶ 15 Officer Anthony Snow of the Oswego Police Department testified as follows. In 2016, he
was a general case detective and interviewed T.G. on the night of the incident. On November 1,
2016, Snow went to defendant’s apartment to interview him. Defendant was about five feet tall
and weighed about 140 pounds. Snow called “Language Line” to be able to use an interpreter to
speak to defendant. There were times that Snow asked his question in English and defendant
answered without the interpreter’s assistance. Snow video recorded the conversation. Snow played
a voicemail message from T.G.’s phone for defendant and asked if he had called her, but defendant
replied no. Defendant also answered no to the questions of whether he had a job or had been to
Oswego. Defendant further denied being a landscaper and knowing someone named T.G. Snow
admitted that he had no way of knowing if the interpreter was translating correctly and that he did
not use T.G.’s nickname of S. when speaking to defendant that day.
¶ 16 At the close of the State’s case, defendant moved for a directed verdict, arguing that the
State had failed to prove the element of use of force or threat of force. The trial court denied the
motion, stating that reasonable minds could fairly conclude that defendant was guilty.
-5-
2021 IL App (2d) 190683-U¶ 17 Defendant then testified as follows. He was 97 years old. 1 He was born in Eritrea and spoke
only Tigrinya. Defendant never attended school and could not write; he had farmed for a living.
He went to a refugee camp in Ethiopia in 2004 due to war in Eritrea. He had been in the United
States for seven years and knew some English words, including “I love you.”
¶ 18 In 2016, defendant lived in a senior home in Wheaton. He went to a house to do yardwork
and received a total of $190. The lady of the house usually picked him up and took him home, but
her husband also took him home once. The second time he went to the house, he met a girl there
named S. 2 He spent the night at the house and continued the yard work the next day. That day,
T.G. helped him carry the weeds to the garbage. T.G. then kissed him and said “I love you.”
Defendant was very shocked because this was unexpected, and in Eritrea people kissed each other
on the cheeks. Also, defendant was much older than T.G. She then kissed defendant again when
he took the cart back to the garage.
¶ 19 The next time defendant came to the house to do yard work, he worked outside and then
had lunch with Lucas and T.G. Lucas suddenly left, and defendant and T.G. were alone in the
house. T.G. finished eating and took her plate to the kitchen, and defendant took his plate to the
kitchen as well. Defendant was drinking water by the sink, and T.G. was by the stove. T.G. then
1
Defendant later testified that he was born on January 1 but did not know what year and
therefore did not know his actual age because they did not track age in his native country. At a
prior hearing, the trial court stated that defendant’s identification stated that he was born in 1941,
which would have made him 78 years old at the time of trial.
2
In his testimony, defendant continued to refer to T.G. as S., but we use the name T.G. for
consistency.
-6-
2021 IL App (2d) 190683-Uhugged and kissed him and said, “I love you.” Defendant was separated from his wife and in all
of those years he had never had anyone closely touch him or kiss him like that, so he became
aroused. Defendant and T.G. walked to the sofa together, holding hands, and sat down. They each
took off their underwear and had consensual sex together, with defendant on top. They did not talk
to each other while they were having sex. Before T.G. put her underwear back on, defendant went
back to the yard, and he did three more hours of work. Defendant never saw a dog in the house.
Defendant never pushed T.G., touched her breast, or forced her to have sex with him. She never
said no or to stop, and if she had, defendant would not have even gotten close to her. Defendant
called T.G. on the phone one time, after about one month, and he left the message that was played
in court. He waited that long because she had left the country. Defendant identified his voice in
many messages played in court but said that he left only one message. He testified that Lucas may
have “multiplied” the message to create many messages.
¶ 20 The jury found defendant guilty of criminal sexual assault and criminal sexual abuse. 3 On
June 14, 2019, defendant filed a motion for a new trial in which he included the argument that he
was not proven guilty beyond a reasonable doubt. On August 1, 2019, the trial court denied
defendant’s motion. It then sentenced him to four years’ imprisonment on count I and one year
imprisonment for count III, to be served consecutively. It found that counts II and IV merged into
counts I and III respectively.
¶ 21 This timely appeal followed.
¶ 22 II. ANALYSIS
3
The jury instructions included the proposition that the acts were committed by force or
threat of force, without separating them as the charges had.
-7-
2021 IL App (2d) 190683-U¶ 23 A. Sufficiency of the Evidence
¶ 24 Defendant first challenges the sufficiency of the evidence regarding his convictions of
counts I and II for criminal sexual assault. Count I alleged that defendant committed an act of
sexual penetration by the use of force, in that defendant knowingly placed his penis inside the sex
organ of T.G. by the use of force. Count II alleged that defendant did so by the threat of force.
Defendant argues that the State failed to prove the requisite force or threat of force, and thus failed
to prove him guilty of criminal sexual assault. Defendant argues that this issue should be reviewed
de novo because it involves the purely legal question of whether the State’s evidence was sufficient
to establish the element of force or threat of force. See People v. Smith, 191 Ill. 2d 408, 411 (2000)
(applying de novo review in construing the meaning of the phrase “otherwise armed” to determine
whether the defendant had committed the offense of armed violence).
¶ 25 Defendant points out that “force or threat of force” is defined as:
“the use of force or violence or the threat of force or violence, including, but not limited
to, the following situations:
(1) when the accused threatens to use force or violence on the victim or on any
other person, and the victim under the circumstances reasonably believes that the accused
has the ability to execute that threat; or
(2) when the accused overcomes the victim by use of superior strength or size,
physical restraint, or physical confinement.” 720 ILCS 5/11-0.1 (West 2016).
Defendant cites People v. Denbo, 372 Ill. App. 3d 994, 1005 (2007), where the court stated that
“force” does not mean the force inherent to all sexual penetration, but rather physical compulsion
or a threat of physical compulsion that causes the victim to submit to the sexual penetration against
his or her will. Defendant also notes that a conviction requiring use of force “cannot be sustained
-8-
2021 IL App (2d) 190683-Uby establishing merely that the victim did not consent.” People v. Mpulamasaka, 2016 IL App (2d)
130703, ¶ 74.
¶ 26 Defendant argues as follows. For count I, the State relied heavily on T.G.’s statement that
defendant pushed her onto the couch to show the use of force element. However, defendant was
elderly, five feet tall, and weighed 140 pounds. In contrast, T.G. was 25 pounds heavier and three
inches taller. T.G. testified that she remained sitting on the couch while defendant was standing
and using his hands to undo his pants and take off his underwear. She was in her own house, knew
where the doors were, and had a cell phone, but she never attempted to leave the couch or resist
defendant. T.G. stayed in the house after the intercourse, even though defendant remained and
worked for another several hours. Further, her physical exams did not show any signs of external
or internal harm.
¶ 27 Defendant analogizes this case to People v. Vasquez, 233 Ill. App. 3d 517 (1992). There,
the 13-year-old complainant, P.L., testified that the defendant forced him to engage in two oral sex
acts on different dates by placing his hand on the back of P.L.’s head and forcing it down onto the
defendant’s penis. Id. at 520-1. The first incident happened after P.L. got into the defendant’s
vehicle, but the defendant then exited the car to urinate, and P.L. did not try to leave and later
allowed the defendant to drive him home. P.L. did not tell anyone what happened. Id. at 520. P.L.
saw the defendant about two months later while P.L. was on his way to McDonald’s. The defendant
tried to engage P.L. in conversation, and P.L. decided to walk towards the lake instead of
McDonald’s. Id. at 520-21. P.L. then went with the defendant into a viaduct under a bridge, where
the second act took place. The defendant again left to urinate, but P.L. did not try to leave at that
time, and he did not say anything to people passing by or report the incident later. Id. at 521. P.L.
testified that he was scared of the defendant, but he admitted that the defendant did not threaten
-9-
2021 IL App (2d) 190683-Uhim and that he also believed that the defendant did not intend to harm him. Id. at 528. The
incidents apparently came to light after the defendant mentioned them in letters to his probation
officer. Id. at 519-520, 523. This court found that there was insufficient evidence that the defendant
forced P.L. to engage in oral sex, and we reversed his two convictions of criminal sexual assault.
Id. at 529.
¶ 28 Defendant contrasts Vasquez to People v. Satterfield, 195 Ill. App. 3d 1087, 1091-92
(1990), where the defendant was convicted of criminal sexual abuse after the complainant testified
that, while she was sitting in a car, the defendant opened the car door, grabbed the skin of her neck
and shook it, and poked her in the breast. We concluded that there was sufficient evidence of use
of force, as the complainant was virtually pinned in the car and was therefore physically confined
within the statute’s meaning. Id. at 1097.
¶ 29 Defendant argues that the instant case is even more compelling than Vasquez because T.G.
alleged only a push onto the couch. Defendant maintains that although T.G. testified that she was
scared, as in Vasquez, she did not say that defendant had threatened her, hit her, or confined her.
Defendant argues that similar to P.L., T.G. did not physically resist, and she also did not get up
from the couch or attempt to leave. Defendant highlights her testimony that even after the
intercourse, T.G. stayed home without calling anyone on her phone or seeking assistance.
Defendant argues that this case is distinguishable from Satterfield because there was no allegation
that he confined or pinned her within a confined space, or physically prevented her from leaving.
Defendant asserts that although the State used T.G.’s testimony that she had anxiety to explain her
failure to resist or leave, this anxiety was personal to T.G. and was not the result of defendant
confining her or using force. Defendant argues that force cannot be invented simply due to T.G.’s
failure to get up and leave.
- 10 -
2021 IL App (2d) 190683-U¶ 30 Defendant additionally argues that the State failed to prove count II beyond a reasonable
doubt because no threats were alleged to have been communicated to T.G. Defendant cites People
v. Giraud, 2012 IL 113116, ¶¶ 14-15, where the court stated that a threat, “by its very nature,”
must be communicated to the victim “by word or deed.”
¶ 31 In response, the State argues that defendant has not challenged the evidence that T.G. did
not consent, but rather relies solely on the element of force. The State asserts that defendant’s
argument ignores that T.G. had just been sexually abused in the kitchen and demonstrated physical
resistance by trying to flee the situation when defendant again assaulted her. The State maintains
that defendant prevented her escape and used actual force by pushing her onto the couch. The State
asserts that T.G. would not have been sexually assaulted but for defendant pushing her onto the
couch, such that the element of force was satisfied. The State maintains that Vasquez is
distinguishable because there the court found that no rational trier of fact could have found that
the element of force was proven beyond a reasonable doubt because the case’s facts contradicted
P.L.’s testimony that he was forced to engage in the oral sex act. The State argues that unlike in
Vasquez, T.G.’s behavior does not cast doubt on her testimony, as she explained that her anxiety
caused her to freeze in stressful situations. The State contends that it is also reasonable to infer that
after just having been sexually assaulted by defendant, T.G. was in fear of being harmed by
defendant and submitted to the assault after being pushed onto the couch, such that the purported
force in this case was not rendered improbable by the facts.
¶ 32 The State additionally argues that we lack jurisdiction to consider defendants argument that
the evidence did not support a conviction on count II for the offense of criminal sexual assault by
the threat of force, where count II merged with count I, and no sentence was imposed on count II.
The State cites People v. Betance-Lopez, 2015 IL App (2d) 130521, ¶ 61, where the court stated
- 11 -
2021 IL App (2d) 190683-Uthat the “effect of a trial court merging one conviction into another conviction is vacatur of the
merged conviction.”
¶ 33 We disagree with defendant that de novo review is appropriate here, as unlike Smith, we
are not construing the meaning of a statute as it applies to undisputed facts. Resolution of
defendant’s argument does not rely on statutory interpretation, and defendant further contests facts
in challenging T.G.’s credibility by questioning her version of events. We therefore use the typical
standard of review for this issue. When examining the sufficiency of the evidence, we must
determine whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); People v. Collins, 106 Ill. 2d 237, 261
(1985). The trier of fact has the responsibility to assess witnesses’ credibility, weigh their
testimony, resolve inconsistencies and conflicts in the evidence, and draw reasonable inferences
from the evidence. People v. Sutherland, 223 Ill. 2d 187, 242 (2006). We will not reverse a criminal
conviction based on insufficient evidence unless the evidence is so unreasonable, improbable, or
unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. People v. Murray, 2019
IL 123289, ¶ 19.
¶ 34 As charged in count I, a person commits criminal sexual assault if he commits an act of
sexual penetration and uses force. (720 ILCS 5/11-1.20(a)(1) (West 2016)). We agree with the
State that the element of force was satisfied here by T.G.’s testimony that defendant pushed her
onto the couch. Notably, T.G. had just been sexually abused by defendant in the kitchen and was
trying to get away from him by walking towards the door to the garage. Defendant prevented T.G.
from leaving by pushing her onto the couch, and he then removed her underwear, took off his pants
and underwear, and had intercourse with her. But for defendant’s push, T.G. would have left the
- 12 -
2021 IL App (2d) 190683-Uhouse. It is true that T.G. was younger, taller, and heavier than defendant, but his act of pushing
her onto the couch was still a use of force against her. T.G.’s testimony was not incredible, unlike
in Vasquez, because she explained her failure to physically resist or fight back by testifying that
she had anxiety issues and would freeze in stressful situations. Also in contrast to Vasquez, where
the complainant did not come forward on his own, T.G. told her mother about defendant’s conduct
the same day. Accordingly, there was sufficient evidence to prove defendant guilty beyond a
reasonable doubt of criminal sexual assault.
¶ 35 We further agree with the State that because the trial court merged defendant’s conviction
of count II into his conviction of count I, count II was vacated. Betance-Lopez, 2015 IL App (2d)
130521, ¶ 61. We therefore lack jurisdiction over count II and do not address the sufficiency of
the evidence on that count. See People v. Olaska, 2017 IL App (2d) 150567, ¶ 113.
¶ 36 B. Rebuttal Closing Argument
¶ 37 Defendant next argues that the individual and cumulative effects of improper comments
made by the State in rebuttal closing argument constitute plain error and require reversal.
Defendant first cites the following portion of the State’s rebuttal closing argument:
[State:] “So when counsel says this case comes down to consent, it shouldn’t be a
mystery why it comes down to consent.
What are the potential defenses to these charges. I wasn’t there. Well, we know that
one’s not gonna fly. [T.G.] said she was there, he was there, [Lucas] said he was there.
There is [sic] other people in the house. He can’t say I wasn’t there. That’s not going to
work. Okay. Let’s try this one—
[Defense Counsel]: I would object to the characterization of my closing argument.
THE COURT: Well, your objection is noted but you can continue ***.
- 13 -
2021 IL App (2d) 190683-U[State]: Thank you. Let’s try, okay, I was there but I didn’t have sex with her. We’ll
try that one.
Now, we know that one’s not gonna fly. One in 25 decillion people have the genetic
profile that was contained on the male portion of the vaginal swab from [T.G.’s] body. Not
gonna work.
Of course, the defense is now going to be consent. What’s left?”
Defense counsel then objected again, and the trial court overruled the objection.
¶ 38 Defendant also contests the following subsequent remarks by the State:
“Now, today by your verdict, you can give her the respect that she deserves. You
can let this defendant know I don’t care how much you loved this girl you just met, I don’t
care how much you can’t control yourself because you’ve been away from your wife for
so many years, you can’t take advantage of [T.G.]. It’s not your right, it’s not correct. Until
you see that green light, yes means yes. There was no consent. You can honor that word
no, show [T.G.] the respect she deserves, find this defendant guilty of criminal sexual abuse
and criminal sexual assault.” (Emphases added.)
¶ 39 Defendant did not object to the second paragraph of remarks, nor did he include the
broader issue of improper closing argument in his motion for a new trial, thus forfeiting this
argument for review. See People v. Enoch, 122 Ill. 2d 176, 186 (1988). However, defendant asks
that we review the remarks for plain error. The plain error doctrine allows a reviewing court to
consider an unpreserved error where either (1) a clear error occurs and the evidence is so closely
balanced that the error alone threatened to tip the scales of justice against the defendant, or (2) a
clear error occurs that is so serious that it affected the trial’s fairness and challenged the integrity
of the judicial process. People v. Sebby, 2017 IL 119445, ¶ 48. Defendant argues that this case is
- 14 -
2021 IL App (2d) 190683-Ureviewable under the first prong, as the entire case turned on witness credibility and the evidence
was closely balanced, such that the improper and prejudicial remarks require reversal. The first
step in a plain error analysis is to determine whether a clear or obvious error occurred. People v.
Jackson, 2021 IL App (1st) 180672, ¶ 21.
¶ 40 For the first group of remarks, defendant argues that the State was disparaging him and his
counsel and suggesting that they came up with a defense through the process of elimination, which
was tantamount to suggesting that the defense fabricated its theory of the case in a calculated and
disingenuous way. Defendant cites People v. Aguirre, 291 Ill. App. 3d 1028, 1035 (1997), where
this court stated, “It is blatantly improper to suggest that the defense is fabricated, as such
accusations serve no purpose other than to prejudice the jury.” See also People v. Johnson, 208 Ill.
2d 53, 82 (2003) (“Unless predicated on evidence that defense counsel behaved unethically, it is
improper for a prosecutor to accuse defense counsel of attempting to create reasonable doubt by
confusion, misrepresentation, or deception.”). Defendant analogizes this case to several others that
were reversed for a new trial: People v. Kidd, 147 Ill. 2d 510, 541 (1992) (prosecutor stated that
the defense strategy was to create as many side issues and confusion as possible to divert the jury
from the real facts and the real issues); People v. Polenik, 407 Ill. 337, 348-49 (1950) (prosecutor
made repeated references to criminal lawyers in a manner calculated to arouse general prejudices,
such as saying that defense lawyers “concoct these defenses”); People v. Monroe, 66 Ill. 2d 317,
324 (1997) (prosecutor’s accusation of fraud by defense counsel could serve only to arouse the
antagonism of the jury); People v. Lee, 128 Ill. App. 3d 774, 782-83 (1984) (the prosecution called
the defendant a con man for not requesting psychiatric help until after his arrest when he had
counsel, and repeatedly labeled him as a liar). Defendant argues that there was no indication that
- 15 -
2021 IL App (2d) 190683-Uhis attorney did anything other than present his defense to the jury, such that the State’s comments
were an unwarranted, prejudicial attack on the defense.
¶ 41 The State argues that the focus of the parties’ closing argument was on the issue of consent,
and in its rebuttal closing argument, the State emphasized this issue by pointing out that defendant
was at the residence with T.G. at the time of the offense and that the DNA evidence conclusively
established that defendant had sexual intercourse with T.G. The State maintains that the remarks
can also be seen as commenting on the credibility of defendant’s version of evidence. See People
v. Rebecca, 2012 IL App (2d) 091259, ¶ 82 (the State may comment on the evidence and all
reasonable inferences from the evidence).
¶ 42 The State contends that even if the remarks could be considered improper, they are not
reversible error because they comprised only a small part of the rebuttal, wherein the State
repeatedly emphasized that the real issue in the case was consent. See id. (improper remarks
warrant reversal only where they result in substantial prejudice to the defendant); People v.
Nicholas, 218 Ill. 2d 104, 122 (2005) (improper remarks would not constitute plain error because
they were brief, made at the beginning of argument, and not repeated). The State argues that they
did not impact defendant’s right to a fair and impartial trial, because they merely reinforced that
consent was the ultimate issue of the case. The State also points out that the trial court admonished
the jury that closing arguments were not evidence and that the jury should not consider any
argument not based on the evidence. See id. (citing such admonishments in its analysis that
improper remarks did not rise to the level of plain error).
¶ 43 Prosecutors generally have wide latitude in the content of their closing arguments and may
comment on the evidence and any fair and reasonable inference from the evidence, even if the
inference reflects negatively on the defendant. People v. Jackson, 2020 IL 124112, ¶ 82. A
- 16 -
2021 IL App (2d) 190683-Uprosecutor may also respond to statements by defense counsel that invite a response but must
refrain from making improper, prejudicial comments and arguments. People v. James, 2021 IL
App (1st) 180509, ¶ 39. We view the challenged remarks in the context of the closing argument as
a whole. Jackson, 2020 IL 124112, ¶ 82. Improper remarks constitute reversible error only if they
result in substantial prejudice to the defendant, such that absent the remarks, the verdict would
have been different. People v. Branch, 2018 IL App (1st) 150026, ¶ 32. Our supreme court has
applied both the de novo (People v. Wheeler, 226 Ill. 2d 92, 121 (2007)) and abuse of discretion
standard of review (People v. Blue, 189 Ill. 2d 99, 128 (2000)) for the trial court’s rulings on
closing argument. We need not attempt to select one standard because we are ultimately reviewing
this issue for plain error. See also Jackson, 2020 IL 124112, ¶ 82 (“The standard of review applied
to a prosecutor’s closing argument is similar to the standard used in deciding whether a prosecutor
committed plain error,” in that we “will find reversible error only if the defendant demonstrates
that the remarks were improper and that they were so prejudicial that real justice was denied or the
verdict resulted from the error.”).
¶ 44 We conclude that although the prosecutor’s remarks could have been stated more artfully,
they were a proper comment on the evidence. Notably, Snow testified that when he interviewed
defendant, defendant denied even being in Oswego, being a landscaper, knowing T.G., or leaving
the voicemail message played from T.G.’s phone. However, based on the scientific evidence that
his semen was found inside T.G., at trial he could no longer deny knowing her, having been to her
house, or having intercourse with her, which left the defense of consent. Both parties highlighted
that consent was the central issue, so the prosecutor’s remarks did not cause any confusion and,
unlike the cases that defendant cites, did not directly or personally attack defense counsel.
- 17 -
2021 IL App (2d) 190683-U¶ 45 Regarding the second group of remarks, defendant argues that it was error for the
prosecutor to appeal to the jurors’ sympathies by asking them to send a message to the defendant
and “honor” the complainant by showing her “the respect that she deserves” through their verdict.
Defendant cites People v. Hayes, 353 Ill. App. 3d 578, 586 (2004), where the court stated that
“sending messages, whether to the defendant, to the police or to society, is not the jury’s job” and
that it “is wrong to imply that the guilty verdict form may be used for any purpose other than a
finding that all elements of the offense were proved beyond a reasonable doubt.” Id. at 586.
Defendant also cites People v. Wheeler, 226 Ill. 2d 92, 129 (2007), where the court stated that it is
improper for a prosecutor to use closing argument to forge an us-versus-them mentality that is
inconsistent with the jury’s nonpartisan role. Defendant argues that the prosecutor’s statement that
the jury should give T.G. the respect that she deserved and “let this defendant know” that his
actions were wrong, were likewise improper and designed to inflame the jury’s passions and create
an “us against them” atmosphere. Defendant argues that the jury’s sole role was to determine
whether all of the charges’ elements were proven beyond a reasonable doubt, and its job was not
to send a message, to “let the defendant know,” or to use its verdict to show the victim respect.
¶ 46 The State argues that the comments were properly based on the evidence and were not
meant to inflame the jury’s passions. The State highlights T.G.’s testimony that she told defendant
“no” when he grabbed her breast and sexually assaulted her, but defendant ignored her words. The
State also argues that the prosecutor did not say to send defendant a message or send him back to
jail, and it notes that under People v. Harris, 129 Ill. 2d 123,159 (1989), it is permissible for a
prosecutor to dwell upon the evil results of crime and to urge the fearless administration of the
law. The State maintains that even if we find that error exists, defendant cannot establish
substantial prejudice.
- 18 -
2021 IL App (2d) 190683-U¶ 47 We conclude that the prosecutor’s statement to “let the defendant know” was not in error
because the State did not improperly exhort the jury to “send a message” against criminal behavior
to the larger community by convicting defendant. Instead, the prosecutor tied the phrase to
convicting defendant based on the evidence presented against him. Cf. People v. Desantiago, 365
Ill. App. 3d 855, 865 (2006) (the State’s remarks encouraged the jury to send a message to the
defendant rather than the community at large). Similarly, the prosecutor’s statements to show T.G.
the respect that she deserved by convicting defendant was directly linked to T.G.’s saying no and
her lack of consent to defendant’s actions. For these reasons, this is distinguishable from Wheeler,
where the prosecutor sought to “inflame the passions and prejudices of the jury, uniting the
interests of the jurors in their own safety with that of the interests of the State in convicting [the]
defendant.” Wheeler, 226 Ill. 2d at 130-31.
¶ 48 To the extent that the remarks can be considered prosecutorial exhortations, “limited
prosecutorial exhortations are proper where it is made clear to the jury that its ability to effect
general and specific deterrence is dependent solely upon its careful considerations of the specific
facts and issues before it.” People v. Johnson, 208 Ill. 2d 53, 79 (2003). Here, the disputed
statements were limited in scope and directed the jury to the specific facts and issues in this case,
including the primary issue of whether T.G. consented to the intercourse.
¶ 49 As we have found no error in the prosecutor’s remarks, there can be no plain error. We also
need not address defendant’s argument that the cumulative effect of the prosecutor’s improper
remarks prejudiced him.
¶ 50 III. CONCLUSION
¶ 51 For the reasons stated, we affirm the judgment of the circuit court of Kendall County.
¶ 52 Affirmed.
- 19 -