People v. Wilson , 2015 IL App (4th) 130512 ( 2016 )

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Appellate Court Date: 2016.01.21
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People v. Wilson, 2015 IL App (4th) 130512
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption BRETT M. WILSON, Defendant-Appellant.
District & No. Fourth District
Docket No. 4-13-0512
Filed December 3, 2015
Decision Under Appeal from the Circuit Court of McLean County, No. 12-CF-51; the
Review Hon. Scott D. Drazewski, Judge, presiding.
Judgment Affirmed in part and reversed in part; cause remanded.
Counsel on Michael J. Pelletier, Jacqueline L. Bullard, and Martin J. Ryan
Appeal (argued), all of State Appellate Defender’s Office, of Springfield, for
appellant.
Jason Chambers, State’s Attorney, of Bloomington (Patrick Delfino,
David J. Robinson, and Linda Susan McClain (argued), all of State’s
Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
Panel PRESIDING JUSTICE KNECHT delivered the judgment of the court,
with opinion.
Justices Pope and Holder White concurred in the judgment and
opinion.
OPINION
¶1 In January 2013, defendant, Brett M. Wilson (born April 14, 1993), was convicted of five
counts of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2010))
and five counts of aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(1)(i) (West 2010)).
He was sentenced to five terms of natural life. Defendant appeals his conviction and sentence.
On appeal, he argues (1) the prosecutor improperly acted as a “human lie detector” when he,
during closing argument, commented on the defendant’s and other witnesses’ mannerisms
during videorecorded interviews; (2) the trial court erred by allowing the State to elicit
testimony regarding other crimes allegedly committed by defendant when no foundation or
specificity was provided to show those crimes occurred before the charged offenses and to
permit defendant to mount an effective defense; (3) the trial court erred when it did not allow
defendant to play a videorecorded interview of a prior consistent statement to rebut the State’s
inference the witness had a motive to lie or made a recent fabrication; and (4) his natural life
sentences violate the eighth amendment’s prohibition against cruel and unusual punishment
(U.S. Const., amend. VIII), his right to due process (U.S. Const., amend. XIV), and the
proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11). We
affirm in part, reverse in part, and remand for resentencing.
¶2 I. BACKGROUND
¶3 Defendant is the son of Belinda and Bill Lovall. Belinda and Bill share two other children,
daughters Br. L. and Bi. L. Belinda and Bill divorced. Belinda later married Tom Hargis. Three
children were born during their marriage: A.H. (born June 16, 2004), T.H. (born October 12,
2005), and J.H. (born April 15, 2003). When Tom and Belinda separated, Belinda retained
custody of A.H., T.H., and J.H. Belinda and the children resided in Clinton. In March 2010,
Belinda and Bill renewed their relationship. Belinda and her five children moved to
Bloomington to reside with Bill.
¶4 In February 2012, defendant was indicted by a grand jury on five counts of predatory
criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2010)) and five counts of
aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(1)(i) (West 2010)) involving three
victims: A.H., T.H., and J.H. Counts I through III assert defendant committed mouth-to-penis
penetration with each child, each under the age of 13, on October 19, 2010. Count IV alleges
penis-to-mouth penetration with A.H. on June 16, 2011. Count V alleges penis-to-mouth
penetration with A.H. on some day between October 1, 2011, to November 30, 2011. Counts
VI through X allege aggravated criminal sexual abuse.
¶5 At trial, A.H., age 8, testified she and her siblings played together, including games like
hide-and-seek and tag. A.H. testified defendant made her put her mouth on his penis. Before
this, defendant unzipped his pants, but he did not pull them down. He did not otherwise touch
A.H. The first time this conduct occurred was at a time when Belinda and Bill were out. A.H.
was then seven years old. The family lived on McGregor Street. A.H. was playing in her room,
and defendant asked her to go into her closet with him. The doors were closed. A.H. testified
her mouth was on his penis a short time. Defendant told her if she told anyone she would go to
foster care. After the contact, A.H. exited the closet and went to the front room to watch
television. Defendant called J.H. into the closet. A.H. did not tell anyone right away due to
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defendant’s statement she would go into foster care if she told. A.H. did not tell her mother
immediately because she did not return home until later.
¶6 A.H. testified regarding another incident on her eighth birthday, June 16, 2012. A.H.’s
siblings, mother, stepfather, and grandparents were present. Everyone was outside. A.H.
opened her presents. Defendant told her he had a present for her. Defendant took A.H. into the
house. The two went into A.H.’s bedroom, and defendant had A.H. put her mouth on his penis.
A.H. kept her mouth on his penis until defendant told her to stop. They returned outside.
¶7 A.H. testified regarding a third incident. A.H. and her family moved to a new house. A
“couple days after” the move, defendant babysat A.H, J.H., T.H., Br. L., and Bi. L. During that
time, after they finished eating, A.H. went into her room to play. She closed her door.
Defendant followed her. Defendant unzipped his pants and told A.H. to put her mouth on his
penis. A.H. complied. When defendant left the room, A.H. stayed and played with her toys. No
adults were in the house. Her mother returned in the afternoon.
¶8 According to A.H., defendant forced her to do the same at her grandmother’s house. A.H.
could not say how old she was or whether the event occurred before or after she moved.
¶9 At this point in the testimony, the trial court addressed the jury. The court stated the
following:
“Folks, let me indicate that what counsel had asked to approach the bench about
was the necessity that being of me informing you about the anticipated next evidence or
testimony from this witness, which is the evidence that is going to be elicited or
attempted to be elicited is being received that the defendant may have been involved in
another offense other than that that has been charged within the indictments that I
previously read to you. This evidence, should it be received on the issue of the
defendant’s identification, his presence, his design, or his motive and may be
considered by you only for that limited purpose.
It is for you to determine whether or not the defendant was even involved in this
conduct, and if so what weight should be given to this evidence on the issues that I
indicated, which is identification, presence, intent, and design.”
¶ 10 A.H. continued by testifying regarding the incident in her grandmother’s shed. A.H. had
been playing inside a large shed. It contained lawn mowers, hammers, and other tools.
Defendant entered the shed and told A.H. to put her mouth on his penis. Bi. L. and Br. L. were
also in the shed. Br. L. was 10 to 12 feet behind A.H. There were a “couple toolboxes” between
Br. L. and A.H. Defendant had Br. L. do the same thing. A.H. saw Br. L. put her mouth on
defendant’s penis. Defendant then took his sisters to the park, where they “played for a couple
hours.”
¶ 11 A.H. lived with her mother and Bill when the incidents occurred. A.H. did not tell Belinda
and Bill until after she talked to “Mr. Mike,” Detective Michael Burns. A.H. first reported the
incident to her father, after J.H. did. After A.H. told her father about the events, A.H. also told
Detective Burns and “Miss Molly” at the Child Advocacy Center.
¶ 12 On cross-examination, A.H. testified she lived with her grandmother, Phyllis, and Tom.
A.H. talked about the incidents with “Adam,” Phyllis, and Rebecca, who lived with Tom and
Phyllis for a while. A.H. had seen Detective Burns before. She talked to him when Detective
Burns investigated Bill for spanking J.H. Detective Burns asked A.H. if there was anything
happening at her house she did not like or did not want to happen and if there was anything she
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needed to discuss. A.H. did not report the incidents with defendant. On redirect examination,
A.H. explained she did not tell Detective Burns about the sexual contact because Detective
Burns was at her house before those incidents occurred.
¶ 13 In January 2012, Detective Burns interviewed A.H. The video of A.H.’s interview was
played for the jury. During the interview, A.H. reported defendant “a lot of times he made us
put our mouth on his wee wee.” This conduct occurred at the house on McGregor Street and at
the Bloomington house “in our closet.” A.H. stated defendant “only let the boys do it once and
he said that I was the best at doing it and I had to keep on doing it but the boys didn’t.” A.H.
reported she would be watching television and defendant would call them into the closet “one
by one.” Once, while playing hide-and-seek, defendant made A.H. “do it while we were
waiting for everyone to hide.” He told A.H. if she “didn’t do it he would tell [Belinda] and Bill
that [she] was being bad and that [she] would have to stand in the corner.” A.H. reported
defendant would rub his penis with his hand while it was in her mouth. He threatened, if she
told anyone, A.H. would go into foster care and not see her father or her brothers.
¶ 14 T.H., age seven, testified, after the State asked if “anything ever happened with [defendant]
that you didn’t have fun doing,” defendant had “covered [his] mouth and nose,” but he forgot
“about the rest.” T.H. remembered talking to someone at the place where the prosecutor and
T.H. had met before. He remembered talking about “bad things” that happened with defendant.
T.H. said defendant made T.H. put his mouth on defendant’s penis. T.H. did not remember
where he lived at that time, but he lived with his mother.
¶ 15 The jury viewed T.H.’s interview by Detective Burns. T.H. stated, “I have been really bad
cause cause cause cause uh [defendant] uh said we have to put his mouth on his wiener.” T.H.
reported defendant told them “[A.H.] is the best one and she has to keep on doing it and doing
it all over again.” This happened more than once. T.H. said, “[l]ike 5 times.” Defendant told
the children not to tell or they would go to foster care. T.H. said Belinda and Bill once saw
defendant making T.H. put his mouth on his penis. They said defendant had to move out of the
house. T.H. also testified defendant had played with T.H.’s penis, pulling on it “like 5 or 3
times.”
¶ 16 J.H., age nine, testified there were “lots of times” when his mother and Bill were gone and
defendant babysat the younger siblings. There were other times in which a different sitter came
to their home. Defendant made J.H. put his mouth on defendant’s penis. J.H. was seven or
eight when this occurred. They lived on McGregor Street at the time. J.H. was in the living
room. Defendant called J.H. into the girls’ room. Defendant and J.H. went into the closet. No
one else was in there. The closet door was open, but the door to the room was closed.
Defendant told J.H. to put his mouth on defendant’s penis. Defendant unzipped his pants and
pulled them down. J.H. stopped when defendant told him to stop. Defendant told J.H. to go to
the living room and watch television. J.H. did this once.
¶ 17 J.H. testified he was scared to tell his mother. J.H. reported, “once [defendant] put his hand
over our mouth and nose and I told Bill that, and then he said he didn’t do that, so I was scared
that–I didn’t know if they were going to believe me.” Defendant also said if J.H. told, he would
never see his father again and would go into foster care.
¶ 18 On cross-examination, J.H. testified he remembered speaking with Detective Burns at the
Children’s Advocacy Center. J.H. told Detective Burns the contact occurred while Belinda and
Bill were out for Bill’s birthday. J.H. also spoke to Detective Burns about the spanking
incident. J.H. reported to Detective Burns he spoke to the Clinton police before speaking to
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him. After the visit to the police station, Tom took J.H. to buy a dart gun, soda, and candy bars.
J.H. testified the discussion with Detective Burns about spanking occurred before the incident
in the closet.
¶ 19 J.H. remembered talking to a judge in Clinton. He did not know if this was during his
parents’ divorce case. When asked if he remembered saying, “sorry, mommy, daddy makes me
say things,” J.H. said no. On redirect examination, J.H. denied making that statement.
¶ 20 Michael Burns, a detective with the Bloomington police department, testified he worked
with victims who were minors. He conducted interviews of A.H., T.H., and J.H. Those
interviews were videorecorded. There were no witnesses other than the children. Detective
Burns interviewed defendant at the police station on January 18, 2012. That interview was
played for the jury. In this interview, defendant stated his date of birth as April 14, 1993.
¶ 21 According to Detective Burns, the children reported to “Officer Hughart” at the
Bloomington police station defendant’s sexual misconduct toward them. A.H. stated defendant
made her “kiss his wee-wee.” J.H. and T.H. used the same language, stating defendant made
them “kiss his wee-wee.” During the interview, T.H. reported having to do it “much less than
her.” J.H., however, told Detective Burns he and T.H. had to do it four or five times. At this
point, Detective Burns did not determine a crime had been committed. Detective Burns spoke
to Tom after the interviews of the children. Tom denied having any knowledge of what the kids
were telling Detective Burns. At this point, Detective Burns had not interviewed Br. L. or Bi.
L.
¶ 22 After interviewing A.H., T.H., and J.H., Detective Burns contacted Belinda and had
Belinda bring Br. L. and Bi. L. for interviews. Br. L. corroborated some of the statements of
A.H., T.H., and J.H., but she did not provide a statement that coincided with the actual abuse.
Bi. L.’s interview also did not corroborate actual abuse.
¶ 23 Detective Burns testified to another occasion where Tom alleged abuse and Detective
Burns was brought in to investigate. One incident occurred on June 15, 2010. It was alleged
defendant was choking J.H. After interviewing the children, Detective Burns closed the
investigation. On May 23, 2011, Tom made the allegation Bill spanked J.H. Detective Burns
talked to J.H., A.H., and Belinda and concluded the allegations were unfounded. During his
discussions with A.H. and J.H., neither child raised the issue of sexual misconduct by
defendant.
¶ 24 Regarding the allegations of sexual abuse, Detective Burns made arrangements through
defendant’s grandmother for defendant to meet with him. Defendant met with Detective Burns
voluntarily. At this point in the testimony, defense counsel commented on Detective Burns’s
position in the video as indicative of an attempt to manipulate defendant. Defendant denied the
abuse.
¶ 25 Before rendering his opinion he believed the children, Detective Burns had no knowledge
of Tom’s petitions for orders of protection filed by Tom against Belinda. When asked if he had
“checked up on Tom’s litigation history,” Detective Burns replied he tried to “go into the
interviews with an open mind and unbiased about anybody involved in the case.” He did not
know about the order of protection Tom sought against defendant in Macon County in 2010.
¶ 26 On redirect examination, Detective Burns testified he knew of an order of protection in
place against defendant, but he did not recall the specifics of how he knew. Detective Burns
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also knew about an order of protection Belinda sought. At the time of the interviews, A.H.,
J.H., and T.H. resided with Belinda. Defendant resided with his grandmother.
¶ 27 On behalf of the defense, Br. L., age 11, testified she resided with Belinda, Bill, and Bi. L.
Br. L. testified Bill’s birthday is on October 19. She testified on his birthday in 2010, Belinda
and Bill went out and left the children with a sitter, Kaitlyn Kindig. Defendant had babysat Br.
L. “a couple of times,” but each time his girlfriend was with him. Br. L. testified, on A.H.’s
seventh birthday, the family opened presents at the house and the family then went to Grady’s,
a pizza place with rides. The family went inside and ate pizza. They stayed at Grady’s for two
hours, after which they returned home and ate cake. A.H. was never alone at her birthday party.
¶ 28 Br. L. testified defendant resided with his grandparents in Clinton. There was a shed at
their house. Br. L. had not been in the shed. She did not know what was inside the shed.
Defendant had not forced Br. L. to put her mouth on his penis. She had not seen defendant do
this to A.H. or Bi. L. in the shed. At no time during a visit to the grandparents’ house did
defendant take her, Bi. L., and A.H. to the playground. Br. L. recalled talking to Detective
Burns. Defendant had never done anything to make her feel uncomfortable.
¶ 29 On cross-examination, Br. L. acknowledged she had not seen defendant for a long time and
she wanted him home. Br. L. testified she was nine years old on her father’s birthday, and
nothing interesting happened that night. There were sitters often at the house. Kaitlyn and
defendant were the only ones who babysat for them. Br. L. did not remember anything about
her father’s last birthday, when she was 10. Br. L. did not remember if her parents went out or
whether defendant babysat that day.
¶ 30 Regarding A.H.’s birthday, Br. L. testified a lot of people were at the house. On that day,
the children were playing outside. Br. L. acknowledged there were times when she was not
with A.H. on that day. Br. L. testified they were at the house for a while before they went to
Grady’s.
¶ 31 Defendant sought admission of the videorecorded interview of Br. L., conducted on
January 1, 2012. Defendant argued the State implied recent fabrication and that Br. L. was
testifying differently today out of favoritism. The court questioned defendant, asking, “what
specific assertions with regard to her testimony and recollection of particular incidents do you
believe that the State made as it relates to recent fabrication as opposed to an inference of bias,
hostility, or motive to testify in a certain manner?” Defendant argued it was not hearsay as it
would be used to rebut the claim of recent fabrication. The State argued the video was being
offered to improperly bolster Br. L.’s testimony with a prior consistent statement. The State
maintained it simply cross-examined her to get into details that defense counsel did not seek
during direct examination. The State argued its questions did not open the door by challenging
Br. L. The State also argued the jury heard Detective Burns state Br. L. denied the incidents
occurred.
¶ 32 The trial court excluded the video, after concluding it would be improper to replay the
entire questioning for the jury. The court, however, allowed defense counsel to ask Br. L. if she
told Detective Burns during her interview what she testified to on that day.
¶ 33 On redirect examination, Br. L. testified when she spoke to Detective Burns on January 1,
she told him what she testified to in court.
¶ 34 Bi. L., age 16, testified regarding her father’s birthday in October 2010. Belinda and Bill
went out with a friend. That friend’s daughter, Kaitlyn, babysat the children. Defendant
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babysat the children on other occasions, sometimes by himself and other times with his
girlfriend.
¶ 35 According to Bi. L., on A.H.’s seventh birthday, the family went to Grady’s. The party
began at the house. They opened presents on the patio before they left. At Grady’s, they ate
supper and played on the rides. They returned to the house to eat cake and ice cream. It was
dark at this time. Defendant left with his grandmother before the family went to bed.
¶ 36 Bi. L. testified her grandmother in Clinton had a shed, but Bi. L. had not been in the shed.
She denied defendant took her there. Since the family moved to Bloomington, there was not a
time when defendant took them to the playground in Clinton. Defendant had never touched Bi.
L. inappropriately. Bi. L. stated her testimony was the same as her responses in the interview
with Detective Burns. She never saw defendant do anything bad to A.H.
¶ 37 On cross-examination, Bi. L. testified she missed defendant and would like him to return
home. Bi. L. testified, on Bill’s birthday in 2012, they “basically didn’t do anything.” They
stayed home. Regarding Bill’s birthday in 2011, Bi. L. did not remember what they did. When
asked if she remembered if defendant was there and babysat, Bi. L. recalled that he did. Bi. L.
acknowledged, at A.H.’s birthday party, everyone was not together the entire time. Bi. L.
denied being in a shed at her grandmother’s present or previous house.
¶ 38 Belinda testified Tom and A.H., T.H., and J.H. resided with Tom’s mother in Decatur.
When Belinda and Tom separated, the initial period was amicable. That changed when Belinda
reunited with her first husband, Bill, in March 2010. Tom became “very irate.” In May 2010,
Belinda secured an order of protection against Tom. This order gave Belinda physical custody
of A.H., T.H., and J.H. At this time, defendant lived in the same house. In June 2010, Belinda
and her children moved to Bloomington with Bill. Defendant returned to Clinton.
¶ 39 According to Belinda, in June or July 2010, Tom petitioned for an order of protection
against defendant. He also filed divorce papers, requesting custody of A.H., T.H., and J.H. The
divorce was granted, but custody and child-support issues remained.
¶ 40 Regarding Bill’s birthday in October 2010, Belinda testified she and Bill went to Shooter’s
Lounge with two friends. There, they met with several others. That day, Kaitlyn babysat the
children. Defendant was not at their house that day, as defendant and Bill were not speaking.
On A.H.’s seventh birthday, in June 2011, they had a party at their house. Defendant and
Belinda’s mother were there. They “were all hanging around outside playing, waiting for Bill
to get off work.” After Bill returned and showered, they “all opened presents outside on the
patio, piled into the car, and went off to Grady’s.” The group returned to the house for cake and
ice cream. Defendant stayed about 15 to 30 minutes. He returned to Clinton with his
grandmother. There was no opportunity for anyone to be alone with A.H. The house was small,
so she knew where A.H. was.
¶ 41 Belinda testified defendant babysat occasionally for the children, but he did not do so
alone. Defendant brought a friend or his girlfriend with him. Belinda testified regarding the
events of January 1, 2012. That day, Tom was to return the younger children from a visit.
Belinda received a phone call from Detective Burns, who asked her to bring Br. L. and Bi. L. to
the Children’s Advocacy Center. Belinda complied. Eleven days earlier, there was a custody
hearing in De Witt County. The court appointed a guardian ad litem for the children. After
defendant’s arrest, the court was advised and Tom was given custody in March 2012.
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¶ 42 On cross-examination, Belinda agreed Tom knew defendant did not reside and had not
resided with her for a long time. Belinda testified on Bill’s birthday in 2011, they went to Six
Strings. When asked if defendant babysat for that birthday, she said she did not think so. When
asked if it would surprise her to know defendant said he watched the children on Bill’s 2011
birthday, she said no and admitted it was possible.
¶ 43 Belinda testified she was watching A.H. during her seventh birthday party. When
questioned, “[y]ou were watching [A.H.] the entire time during this party?” Belinda
responded, “It was her birthday.” The children were playing outside in the yard she was facing
while sitting. Belinda acknowledged, if A.H. had to use the bathroom during her party, there
could have been “multiple” occasions in which A.H. may have been alone with someone else.
Belinda testified defendant had on occasion babysat the children alone, but not since the family
moved to Bloomington. Belinda explained as follows:
“When [Bill] and I go out, the children are in bed before we leave, and the
babysitter just sits and watches TV. [Defendant] would bring someone. He would bring
his X-box. He would play our Wii. He brought someone so he wouldn’t be bored just
sitting there by himself until we got home. So, yes, while we lived in Bloomington, he
absolutely had someone with him every time he watched the children.”
¶ 44 Christy Kindig testified she was out with Bill and Belinda for Bill’s birthday on October
19, 2010. Christy brought her daughter, Kaitlyn, to the Lovalls’ house so she could babysit the
younger kids. Christy picked up her daughter early the next morning. Christy did not see
defendant. On cross-examination, Christy testified she did not remember other specific dates
Kaitlyn babysat for the Lovalls. She testified she might remember that date because it was for a
birthday and it was a school night. Kaitlyn did not go to school the next day because she was
tired. Kaitlyn rarely babysat during the week.
¶ 45 Kaitlyn testified she babysat for the children during Bill’s birthday party in October 2011.
She spent the night and was too tired to go to school the next day. Defendant was not there.
Kaitlyn babysat for the five younger children.
¶ 46 Nancy Holt, defendant’s maternal grandmother, testified in March 2011, she attended a
court proceeding regarding the divorce. The children went in and spoke to the judge. When the
children exited that hearing, Holt heard J.H. say to Belinda, “Mommy, I’m sorry.” When
Belinda asked him why, J.H. said, “Daddy said if I didn’t say what he told me, I would never
see you or him again. They would put me in care.”
¶ 47 Holt testified regarding A.H.’s seventh birthday. She drove defendant from her home in
Clinton to Bill and Belinda’s house. She never saw defendant alone with A.H. When asked
about her shed, Holt testified it was full of things. It was approximately 8 feet by 10 feet. There
was no room to stand in the shed without removing some of the contents. The shed had a lock
on it.
¶ 48 On cross-examination, Holt testified her first address in Clinton had a playground not far
away. It also had a shed. She moved from that house on October 1, 2010.
¶ 49 Defendant testified on his own behalf. According to defendant, his relationship with Tom
was rocky. Defendant believed in June or July 2010, Tom filed an order of protection petition
against him. At that time, the three younger children resided with Belinda. After defendant
moved to his grandmother’s house in Clinton, he did not see his younger siblings very often.
Defendant stated he was not alone with A.H. on her seventh birthday. He denied taking his
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siblings into a shed at his grandmother’s house. Defendant did not tell the children to put their
mouths on his penis.
¶ 50 On cross-examination, defendant testified he took the five children to a playground in
Clinton. They played games there. When Detective Burns asked about the playground,
defendant denied going there. Defendant had been in his grandparents’ shed. There were tools
in the shed. The first shed was fairly big.
¶ 51 Defendant testified he attended A.H.’s birthday. He acknowledged telling Detective Burns
he had not been to her birthday for a while. Defendant denied knowing one of the allegations
involved A.H.’s birthday when he met with Detective Burns. Defendant testified he babysat
for the children on Bill’s birthday in 2011. There were other times he babysat the children.
¶ 52 Defendant testified he planned to enter the military after high school graduation and would
like to do so. Defendant knew he would not be allowed into the armed services with a felony.
He knew that when he spoke to Detective Burns and asked him about it. The following
questions and answers occurred:
“Q. When Detective Burns asked you a question, he asked you what should
happen?
A. Yes.
Q. And you told Detective Burns that it was just that, just putting your penis in a
child’s mouth, counseling so someone could get out of it, right?
A. Yes.”
¶ 53 On redirect examination, defendant testified he was truthful with Detective Burns. The
following discussion occurred:
“Q. You weren’t surprised at all when Detective Burns told you you were under
arrest, were you?
A. No, because I had already figured out they had his mind made up on taking me
into custody.
Q. You weren’t surprised at all when Detective Burns told you the types of things
that he had been told, were you?
A. I was.
Q. That interview, that was you surprised?
A. Yeah.
Q. And your reactions to him telling you what your little sister and little brother told
him happened, that was you not surprised?
A. I was not surprised, but I was in shock.”
¶ 54 The State began its closing argument by playing the following excerpt from defendant’s
videotaped statement, after directing the jury to “watch his hands”:
“DETECTIVE BURNS: Are you telling me they’re lying?
THE DEFENDANT: They may not be lying, but it’s not with me, what you’re
saying.
DETECTIVE BURNS: They have a lot of–and they didn’t talk about their dad.
They didn’t talk about your dad. They talked about you, specifically you.
THE DEFENDANT: But it wasn’t me.
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DETECTIVE BURNS: Who was it then?
THE DEFENDANT: I don’t know, but it wasn’t me.
DETECTIVE BURNS: You’re under arrest.”
¶ 55 The State continued with the following:
“Shocked. That’s him shocked that he was being arrested. Now, at the beginning of
this trial, I asked you to pay very close attention to the testimony of the people and their
mannerisms, and I think you just did. And if you did that, you paid attention during that
interview, and you watched over and over again during that interview as he wiped his
hands on his legs, as he wiped his hands on his legs, and then after he was shocked that
he was arrested, if you paid attention, you saw him after that straighten his legs and
uncross them and fold his hands.
This case has kind of unfolded before you, and what it has become and what I, you
realize now is this is a case that involves a stone-cold defendant and perfect victims.
***
[W]hen these kids got on the stand, you saw when they were uncomfortable. You
saw their mannerisms change. You saw when they had to unfold something in front of
you strangers, something that they didn’t want to unfold. You saw how that affected
them. You saw [T.H.] You saw that young child, when he was asked to describe what
his brother did to him. You saw the words get caught by his lips. He couldn’t even say
them. What did your brother do to you? He made me put my mouth on his–he couldn’t
get them out. That’s not just those kids. You saw that from [A.H.] You saw that from
[J.H.] Ladies and gentlemen, you saw that from Br. L., and you saw that from Bi. L.
You saw the manner of those girls change when I started asking them about things their
brother did that made them uncomfortable, and that’s why I presented that to you in
opening statements because that is this case. This case is kids. This case is a crap family
situation and the perfect victims right in the middle of it. And that stone cold, without
emotion defendant, not surprised by the allegations.”
¶ 56 In rebuttal, the State asked the jury again to focus on the mannerisms of the children,
“[y]ou remember how their mannerisms and posture changed here on the stand, and you think
about that because that’s what this case is about.”
¶ 57 Defendant was found guilty on all charges.
¶ 58 In March 2013, the trial court held defendant’s sentencing hearing. The presentence
investigation report indicated defendant was 19 years old at the time. He graduated from high
school, had been employed, had no other criminal record, and began the process of joining the
Army. The State, citing section 11-1.40(b)(1.2) of the Criminal Code of 1961 (Criminal Code)
(720 ILCS 5/11-1.40(b)(1.2) (West 2010)), argued the law required defendant be sentenced to
natural life, but indicated it had “no pleasure gained by a sentence that must be determined by
this court today.” The court agreed, noting it was sworn to follow the law and the law
mandated a term of natural life. On all five counts of predatory criminal sexual assault, the
court sentenced defendant to natural life.
¶ 59 This appeal followed.
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¶ 60 II. ANALYSIS
¶ 61 A. The Prosecutor’s Remarks During Closing Argument
¶ 62 Defendant first argues the State improperly alleged defendant’s body language, during his
interrogation and testimony, indicated deceit. Defendant points to the prosecutor’s comments
directing the jury to watch defendant’s hands during his interrogation and his manner in
moving his hands. Defendant further points to the prosecutor’s direction to watch the
children’s testimony and mannerisms. Defendant argues these comments, “human lie-detector
argument[s],” injected improper considerations into the jury’s prerogative to determine
witness credibility. In support, defendant relies on two cases: People v. Henderson, 394 Ill.
App. 3d 747, 749-50, 752, 915 N.E.2d 473, 475-77 (2009), and United States v. Williams, 133
F.3d 1048, 1052-53 (7th Cir. 1998).
¶ 63 The State begins by arguing defendant forfeited this argument by not objecting at trial,
meaning defendant has the additional burden of proving the plain error doctrine applies. The
State also argues the comments made by the prosecutor were based on reasonable inferences
from the evidence, stating the jury saw defendant’s conduct and demeanor and heard his
testimony he was shocked. The jury could see defendant as he wiped his hands on his legs. The
State further argues the prosecutor’s comments were invited by defense counsel, who stated
during opening statements the jury could see the children’s videotaped statements to “evaluate
whether they’re scripted like the kids pushing out lines at their school play.”
¶ 64 Regarding forfeiture, defendant asserts the State forfeited its forfeiture argument.
Defendant points to the record as showing, during the hearing on the posttrial motions in which
this issue was raised, the State did not assert defendant’s forfeiture. People v. Hancock, 2014
IL App (4th) 131069, ¶ 124, 18 N.E.3d 941.
¶ 65 We need not address forfeiture. The initial step in plain error analysis is to ascertain
whether an error was made. People v. Owens, 372 Ill. App. 3d 616, 620, 874 N.E.2d 116, 118
(2007). If there is no error, there cannot be plain error. We find defendant has not established
error.
¶ 66 During closing argument, prosecutors are granted wide latitude. People v. Wheeler, 226 Ill.
2d 92, 123, 871 N.E.2d 728, 745 (2007). Prosecutors breach that latitude when they express
personal beliefs or opinions or invoke the State’s Attorney’s office’s integrity, to vouch for a
witness’s credibility. People v. Boling, 2014 IL App (4th) 120634, ¶ 126, 8 N.E.3d 65. We
view closing arguments in their entirety and consider the challenged remarks in context. Id.
The question of whether a prosecutor’s statements in closing argument necessitate a new trial
is a legal question reviewed de novo. Wheeler, 226 Ill. 2d at 121, 871 N.E.2d at 744. Reversal
is not warranted unless the improper remarks result in substantial prejudice to the defendant.
People v. Thompkins, 121 Ill. 2d 401, 445, 521 N.E.2d 38, 57 (1988); see also People v.
Billups, 318 Ill. App. 3d 948, 958-59, 742 N.E.2d 1261, 1270 (2001).
¶ 67 Defendant’s argument is unconvincing. Defendant’s two key cases, Henderson and
Williams, involve situations where governmental law enforcement personnel at trial testified
regarding the mannerisms and behavior of the defendants. Neither case involves improper
prosecutor’s remarks. For example, in Henderson, a detective testified extensively on his
interrogation training and how behaviors indicate when an individual is being truthful.
Henderson, 394 Ill. App. 3d at 749-50, 915 N.E.2d at 475-76. The detective testified “ ‘vague
responses can be indicators of deception’ ” and then testified defendant gave vague responses.
Id. at 750, 915 N.E.2d at 476. The detective testified regarding defense mechanisms he looked
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for, including scratching the nose and sweating, and then stated defendant was sweating and
sat in a defensive posture during tougher questions. Id. at 750-52, 915 N.E.2d at 476-77. The
Henderson court found the admission of such testimony erroneous. Id. at 753, 915 N.E.2d at
478 (“We agree *** about the uselessness of this testimony, given that it amounts to nothing
more than inadmissible opinion testimony by the officer that defendant’s story was not true.”).
In Williams, a special agent testified the defendant, when informed he was under arrest,
avoided eye contact and lowered his head. Williams, 133 F.3d at 1052-53. The Seventh Circuit
observed the agent purported “to be a human lie detector” in observing the defendant’s
demeanor. Id. at 1053. The court found the agent’s observations to be “improper
characterizations of the defendant and useless in the determination of innocence or guilt, and in
fact, they tend to prejudice the jury.” Id.
¶ 68 Defendant cites one case in which prosecutorial remarks necessitated a new trial: Boling,
2014 IL App (4th) 120634, ¶ 125, 8 N.E.3d 65. Boling is, however, distinguishable. In Boling,
this court considered a defendant’s challenge to the following statements made during closing
argument and rebuttal:
“ ‘We can believe [K.A.] when she says that [defendant] put his privates on her
woo woo.
We can believe her when she says that [defendant] put his privates on her bottom,
as in Count II.
And we can believe her when she says that he put his mouth on her woo woo.’ ” Id.
“ ‘So, I do think [K.A.’s] statements are credible. They are believable. They are
honest.’ ” Id.
This court concluded the use of the term “we” did not express the prosecutor’s opinion, but
believed the term “ ‘I do think [K.A.’s] statements are credible’ ” improperly expressed the
prosecutor’s personal beliefs. Id. ¶¶ 126-27.
¶ 69 None of these cases establish the prosecutor here acted improperly. The prosecutor did not
express personal beliefs, but pointed to defendant’s own testimony of shock and asked the jury
to look at defendant’s actions, which it could see. The prosecutor did not tell the jury that a
person who wipes their hands on their pants is guilty. The prosecutor did not weigh the
credibility of the witnesses, which is in the jury’s exclusive province (id. ¶ 139), but asked the
jury to do so by what it observed.
¶ 70 This argument fails.
¶ 71 B. The Admissibility of Other-Crimes Evidence
¶ 72 Defendant argues the trial court abused its discretion by admitting other-crimes evidence
under section 115-7.3 of the Code of Criminal Procedure of 1963 (Procedure Code) (725 ILCS
5/115-7.3(a)(1) (West 2010)) due to an inadequate foundation for that evidence. Defendant
acknowledges other-crimes evidence in prosecutions for predatory criminal sexual assault of a
child may be admissible, but he contends in these circumstances the trial court erred. Citing
People v. Donoho, 204 Ill. 2d 159, 182, 788 N.E.2d 707, 721 (2003), defendant contends the
only other-crimes evidence that is admissible is evidence of crimes committed before those
charged. Defendant contends the State’s evidence was vague on the timing of the alleged other
crimes and may have included crimes occurring after the charged conduct, and the State
presented no actual testimony on proximity of time and degree of factual similarity. In
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addition, defendant contends the other-crimes evidence was so vague it placed him in the
impossible position of accounting for his whereabouts on unspecified dates and times and not
just the three dates charged. In support, defendant cites the Second District decision, People v.
Cardamone, 381 Ill. App. 3d 462, 489, 885 N.E.2d 1159, 1180 (2008).
¶ 73 Defendant points to the following uncharged offenses alleged by A.H.: incident where (1)
defendant accompanied her and her two sisters into a shed at their grandmother’s house in
Clinton and told the girls to put their mouths on his penis; (2) defendant took the three girls to
a playground in Clinton and forced them to put their mouths on his penis; and (3) A.H. was
playing a video game with defendant, where sex acts involving A.H.’s mouth and defendant’s
penis were triggered by events during the game. Defendant also emphasizes T.H.’s interview
in which he stated defendant played with T.H.’s penis “5 or 3 times.”
¶ 74 In general, evidence of other crimes is inadmissible to show propensity. See generally
People v. Smith, 2015 IL App (4th) 130205, ¶ 21, 29 N.E.3d 674. Section 115-7.3 of the
Procedure Code, however, provides an exception, permitting other-crimes evidence when the
defendant is accused of predatory criminal sexual assault of a child. 725 ILCS 5/115-7.3(a)(1),
(b) (West 2010). Such evidence is admissible and “may be considered for its bearing on any
matter to which it is relevant.” 725 ILCS 5/115-7.3(b) (West 2010). The section further states,
“[i]n weighing the probative value of the evidence against undue prejudice to the defendant,
the court may consider: (1) the proximity in time to the charged or predicate offense; (2) the
degree of factual similarity to the charged or predicate offense; or (3) other relevant facts and
circumstances.” (Emphasis added.) 725 ILCS 5/115-7.3(c) (West 2010). Other-crimes
evidence, upon meeting the initial statutory requirements, “ ‘is admissible if it is relevant and
its probative value is not substantially outweighed by its prejudicial effect.’ ” Smith, 2015 IL
App (4th) 130205, ¶ 21, 129 N.E.3d 674 (quoting People v. Vannote, 2012 IL App (4th)
100798, ¶ 38, 970 N.E.2d 72).
¶ 75 This court will not overturn a decision to admit other-crimes evidence absent an abuse of
discretion. Donoho, 204 Ill. 2d at 182, 788 N.E.2d at 721. An abuse of discretion has occurred
when the trial court’s decision is arbitrary, fanciful, or unreasonable or when no reasonable
person would take the position adopted by the trial court. Id.
¶ 76 Before addressing whether the trial court erred, it is necessary to address a number of
defendant’s suppositions. Defendant first alleges the trial court must make “specific findings
as to each of these criteria on the record” before ruling on the admissibility of other-crimes
evidence. There is no language in section 115-7.3(c) that requires specific findings. Section
115-7.3(c) specifies a trial court, in weighing the probative value of the evidence against undue
prejudice, may consider the factors. 725 ILCS 5/115-7.3(c) (West 2010). Such language falls
short of requiring specific findings.
¶ 77 In addition, defendant asserts Donoho stands for the conclusion only evidence of prior
offenses is admissible. We disagree. In Donoho, the court considered the propriety of a trial
court’s decision to allow the admission of evidence of another crime committed 12 to 15 years
before the charged offense. Donoho, 204 Ill. 2d at 184, 788 N.E.2d at 722. The court did not
decide to limit section 115-7.3’s application to “prior offenses.” The term “prior offense” was
in the discussion of the earlier conviction, not an express limitation of the rule’s application.
See, e.g., id. at 182, 788 N.E.2d at 721 (“In addition, defendant pled guilty in 1983 to indecent
liberties with a child, which is a prior offense about which evidence is potentially admissible
under this section.” (Emphasis added.)). Defendant cites the legislative history appearing in
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Donoho, in which Senator Radogno, the sponsor of the bill, stated the bill “ ‘would allow the
introduction of evidence of prior sex crimes into a trial of any of the sex offenses which are
enumerated in the bill.’ ” Id. at 173, 788 N.E.2d at 716 (quoting 90th Ill. Gen. Assem., Senate
Proceedings, Mar. 19, 1997, at 56-57 (statements of Senator Radogno)).
¶ 78 We need not consider Senator Radogno’s statements. In Donoho, the supreme court
considered conflicting statements in section 115-7.3 to ascertain whether other-crimes
evidence was admissible as to an accused’s propensity to commit the enumerated sex offenses.
Id. at 172, 788 N.E.2d at 716. The Donoho court found an ambiguity in this language and
turned to legislative history to aid its interpretation. Id. at 173, 788 N.E.2d at 716. The term
“prior” was not relevant to this determination.
¶ 79 Here, in contrast, the issue is the meaning of the term “proximity in time” in section
115-7.3(c). 725 ILCS 5/115-7.3(c) (West 2010). The primary principle of statutory
interpretation is to determine and give effect to the legislature’s intent. Paris v. Feder, 179 Ill.
2d 173, 177, 688 N.E.2d 137, 139 (1997). The best evidence of that intent is the language of the
statute itself. Id. We consider the statute as a whole, construing each provision in connection
with every other section. Id. If the plain language evinces legislative intent, that intent prevails
without resort to other interpretive aids. Id. Following these principles, there is no language
within section 115-7.3 or surrounding sections that indicate the term “proximity in time” is
intended to apply to only past offenses. The language is plain, indicating an intent that so long
as the other crime is “proxim[ate] in time,” it may be admissible to show propensity. We reject
the invitation to read “prior” into this language.
¶ 80 With these findings in mind, we turn to the record and find no abuse of discretion in the
decision to allow testimony on the other crimes. Before ruling, the trial court considered
lengthy arguments by the parties regarding the time frame and the specific content of the
allegations. The record supports a conclusion the other crimes were “proxim[ate] in time.” As
noted in Donoho, even a time span of 12 to 15 years does not render other crimes inadmissible
when other circumstances, such as factual similarities, justify admission. See Donoho, 204 Ill.
2d at 186, 788 N.E.2d at 723-24. Given the children’s ages and the testimony regarding the
locations of the offenses, the crimes could not have extended more than a couple of years. In
addition, the similarities between the offenses are striking. All of the victims are younger
siblings to whom defendant had access. The physical acts repeatedly performed were similar.
Defendant’s conduct in the other crimes was relevant to motive, knowledge, common design,
identity, and intent. The trial court decided the probative value of the other-crimes evidence
outweighed its prejudicial effect. That conclusion was not unreasonable. We note the court
also instructed the jury such evidence would be admitted and the jury should consider it only
for the limited purpose of identification, presence, design, or motive.
¶ 81 Cardamone is distinguishable. In Cardamone, the uncharged other-crimes evidence that
was admitted involved hundreds of sexual acts against 14 girls. See Cardamone, 381 Ill. App.
3d at 464, 885 N.E.2d at 1161. The trial lasted approximately two months and included more
than 100 witnesses. Id. The court concluded no reasonable person would find the probative
value of the other-crimes evidence was not outweighed by its prejudicial effect. Id. at 497, 885
N.E.2d at 1186. The court observed, however, some of the evidence was admissible, but noted
“it is difficult to determine precisely where to draw the line.” Id.
¶ 82 We disagree defendant was placed in the same situation as the Cardamone defendant, who
had to defend against “so many allegations of uncharged conduct” he would have to account
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“for his whereabouts and behavior almost all day, every day, over a three-year period.” Id. at
494, 885 N.E.2d at 1184. Defendant presented testimony by himself and others regarding the
uncharged offenses, denying he was present in the shed, establishing he did not go to the
playground, and contradicting the veracity of the children by the testimony of Br. L. and Bi. L.
¶ 83 C. The Trial Court’s Ruling on Br. L.’s Prior Consistent Statement
¶ 84 Defendant next argues the trial court erred by denying his request to admit the video
interview of Br. L. to rebut the State’s implication Br. L. was testifying falsely to protect her
brother. Defendant argues the record establishes when Detective Burns interviewed Br. L., she
was unaware of the reason for the interview and of the investigation into defendant’s actions as
defendant had not been questioned or arrested until after Br. L.’s interview. Defendant
maintains Br. L. thus had no reason to fabricate statements exonerating her brother when she
first spoke to Detective Burns. According to defendant, this failure deprived him of his right to
present a full defense.
¶ 85 In general, statements made before trial are inadmissible for the purpose of corroborating
trial testimony. People v. Cuadrado, 214 Ill. 2d 79, 90, 824 N.E.2d 214, 221 (2005). Prior
consistent statements are not admissible simply because a witness has been discredited or
impeached. People v. Mullen, 313 Ill. App. 3d 718, 730, 730 N.E.2d 545, 555 (2000). An
exception to the general rule, the exception invoked by defendant, allows admission of prior
consistent statements when it is suggested the witness “recently fabricated the testimony or had
a motive to testify falsely, and the prior statement was made before the motive to fabricate
arose.” Cuadrado, 214 Ill. 2d at 90, 824 N.E.2d at 221. The party seeking admission of the
prior consistent statement carries the burden of proving the prior statement predated the
alleged recent fabrication or the existence of the motive to testify falsely. People v.
Richardson, 348 Ill. App. 3d 796, 802, 809 N.E.2d 141, 146-47 (2004). The decision whether
to admit evidence is within the sound discretion of the trial court. People v. Becker, 239 Ill. 2d
215, 234, 940 N.E.2d 1131, 1142 (2010). We will not reverse a trial court’s decision whether to
admit or deny evidence absent an abuse of that discretion. See id.
¶ 86 This question is a close one. Defendant has established the prior consistent statement
predated Br. L.’s knowledge defendant was suspected of wrongdoing and in danger of
imprisonment for his actions. Thus, the State’s implication Br. L. was testifying in a manner to
help her brother return home was contradicted in some respect by her statement made before
defendant’s arrest and confinement. On the other hand, one could argue Br. L.’s motive to
protect her brother may have existed at the time of the interview, when she was asked if
anything happened in a shed with defendant or at a playground.
¶ 87 The trial court, in ruling on defendant’s request, recognized the closeness of this question.
In fact, the court ruled, in part, in defendant’s favor. While finding it improper to replay Br.
L.’s entire interview for the jury for the sole purpose of discrediting an implied motive to lie,
the court found it sufficient for Br. L. to testify what she told Detective Burns during her
interview was the same as what she told the jury:
“Evidence of a prior consistent statement is ordinarily not admissible to refute a
claim of bias either. However, a prior consistent statement can be admissible to rebut a
charge or inference that the witness’s motivated to testify falsely, so long as the witness
told the same story before the motive came into existence or the witness’s testimony is
of recent fabrication, so long as the witness told the same story before the time of the
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alleged fabrication. So, we don’t need to, nor is it appropriate from the Court’s
perspective, to go ahead and display a video or an interview that occurred a year ago to
go ahead and go through each and every statement that she’s already testified to.
However, since there could or might be an inference of fabrication, an inference based
upon, in essence, the bias that was established or attempted to be established relative to
brother, who she resides with, being aware that, that being of certain things, if the
Defendant wanted to go ahead and ask whether or not what she testified on the stand
today is consistent with that she told Detective Burns in the past. I think that’s
permissible without getting into specifics.”
¶ 88 Defendant has not established this ruling was an abuse of discretion. With Br. L.’s
testimony establishing her statements were the same and the evidence in the record showing
Br. L. was interviewed before the witness arguably knew her brother was in danger of
prosecution, the State’s inference of bias was undermined. Defendant was allowed to show
this, and the jury heard this. Defendant has not established error.
¶ 89 D. The Constitutionality of Defendant’s Natural Life Sentences
¶ 90 Defendant argues his mandatory natural life sentences on all five counts violate the eighth
amendment, the federal due process clause, and the proportionate penalties clause of the
Illinois Constitution. Regarding his eighth amendment challenge, defendant cites Graham v.
Florida, 560 U.S. 48, 82 (2010), as establishing a state may not impose a sentence of life
without parole on juvenile offenders who did not commit homicide.
¶ 91 In Graham, the defendant, 34 days before his eighteenth birthday, participated in an armed
robbery, for which the trial court imposed a sentence of life without parole. Id. at 55-57. The
First District Court of Appeal found the defendant’s sentence not grossly disproportionate to
his offenses and affirmed. Id. at 58. After the Florida Supreme Court denied review, the United
States Supreme Court granted certiorari to consider whether a sentence of life without parole
for juvenile offenders of nonhomicide crimes constitutes “cruel and unusual punishment.” Id.
¶ 92 The Graham Court called life without parole “ ‘the second most severe penalty permitted
by law.’ ” Id. at 69 (quoting Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J.,
concurring, joined by O’Connor and Souter, JJ.)). The sentence “alters the offender’s life by a
forfeiture that is irrevocable,” depriving the offender “of the most basic liberties without
giving hope of restoration.” Id. at 69-70. The Court concluded such a sentence is especially
harsh for a juvenile, serving more years and a larger percentage of his life in prison than an
adult offender. Id. at 70. The Court found the penological justifications for life without
parole–retribution, deterrence, incapacitation, and rehabilitation–did not support imposing
such a severe penalty for juveniles. Id. at 71-74. The Court expressly found juveniles, who lack
maturity and have an underdeveloped sense of responsibility that often leads to ill-considered
actions and decisions, are less likely to consider possible punishment before undertaking an
endeavor. Id. at 72. The Court further found incapacitation did not justify life without parole
for juveniles, as such a finding assumes the juvenile offender will always be a danger to society
and is incorrigible. Id. at 72-73 (“ ‘It is difficult even for expert psychologists to differentiate
between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and
the rare juvenile offender whose crime reflects irreparable corruption.’ ” (quoting Roper v.
Simmons, 543 U.S. 551, 573 (2005))). As to the goal of rehabilitation, the Court found the life
without parole penalty “forswears altogether the rehabilitative idea.” Id. at 74.
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¶ 93 The Graham Court acknowledged states are “not required to guarantee eventual freedom
to a juvenile offender convicted of a nonhomicide crime,” but found states must give such
defendants “some meaningful opportunity to obtain release based on demonstrated maturity
and rehabilitation.” Id. at 75. The Court determined the eighth amendment “prohibit[s] States
from making the judgment at the outset that [juvenile offenders of nonhomicide crimes] never
will be fit to reenter society.” Id.
¶ 94 In this case, defendant’s sentence of natural life was imposed according to section
12-14.1(b)(1.2) of the Criminal Code (720 ILCS 5/12-14.1(b)(1.2) (West 2010)). This section
leaves the trial court with no discretion and mandates sentences of life without parole for
individuals convicted of predatory criminal sexual assault of a child committed against two or
more persons: “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.” Id.
¶ 95 These sentences were imposed on all counts, even on those counts committed when
defendant was a juvenile. Counts I through III, involving A.H., T.H., and J.H, occurred on
October 19, 2010, approximately six months before defendant’s eighteenth birthday. While the
convictions of predatory criminal sexual assault involving two or more victims is satisfied (see
id.), Graham necessitates a reversal of those sentences and remand for resentencing.
¶ 96 Two natural life sentences, or life without parole sentences, were imposed on offenses
defendant committed after his eighteenth birthday. Counts IV and V allege offenses in June
2011 and October or November 2011. These offenses on their own do not trigger the natural
life sentence mandated by section 12-14.1(b)(1.2), as they both involve only one victim, A.H.
¶ 97 The State contends these sentences may stand on two grounds. First, the State cites Miller
v. Alabama, 567 U.S. ___, ___, 132 S. Ct. 2455, 2471 (2012), as establishing the eighth
amendment only bans mandatory life sentences for juveniles and permitting courts to impose
such a sentence if considerations merit it. Second, the State argues defendant’s juvenile
convictions for predatory criminal sexual assault must be counted for purposes of section
12-14.1(b)(1.2) (720 ILCS 5/12-14.1(b)(1.2) (West 2010)). Because those convictions
involved different victims, the threshold requirement of two or more victims is met and
defendant’s sentence on those counts is proper.
¶ 98 The State’s reliance on Miller is misplaced. Miller involved two 14-year-olds convicted of
murder. Miller, 567 U.S. at ___, 132 S. Ct. at 2460. This fact alone distinguishes Miller’s
application to this case. Graham’s holding applies to juveniles convicted of nonhomicide
offenses. Graham, 560 U.S. at 75. In addition, the Miller Court did not undermine the decision
in Graham, but relied on Graham’s analysis regarding a juvenile’s “ ‘lessened culpability’ ”
and increased “ ‘capacity for change,’ ” when it determined mandatory life without parole for
those under 18–all juvenile offenders regardless of the committed offense–violates the eighth
amendment. Miller, 567 U.S. at ___, 132 S. Ct. at 2460 (quoting Graham, 560 U.S. at 68, 74).
¶ 99 As to its second argument this court must consider defendant’s convictions for counts I and
III as triggering the mandatory life sentence for counts IV and V, the State relies on three cases
other than Miller: People v. Lawson, 2015 IL App (1st) 120751, 29 N.E.3d 464, People v.
Sims, 167 Ill. 2d 483, 658 N.E.2d 413 (1995), and People v. Huddleston, 212 Ill. 2d 107, 816
N.E.2d 322 (2004).
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¶ 100 The State’s cases are unconvincing. In Lawson, the defendant received a natural life
sentence based on his commission of his third Class X felony, pursuant to section 33B-1(a)(e)
of the Criminal Code (720 ILCS 5/33B-1(a)(e) (West 2006)). The defendant argued his
sentence was unconstitutional because one of the two prior Class X convictions (a 1998
conviction for armed robbery) occurred when he was 17 years old. Lawson, 2015 IL App (1st)
120751, ¶ 44, 29 N.E.3d 464. The defendant cited Graham and its language “ ‘criminal
procedure laws that fail to take defendants’ youthfulness into account at all would be
flawed.’ ” Id. ¶ 47 (quoting Graham, 560 U.S. at 76). The First District found defendant’s
argument unconvincing and found the sentence “in this case” not unconstitutional. Id. ¶ 53.
The court observed “[d]efendant’s adjudication as an armed habitual offender, of which he had
fair and ample warning, punished him for the new and separate crime he committed in 2006 as
an adult after having already been convicted of two prior Class X felonies.” Id.
¶ 101 While in Lawson, approximately eight years and two convictions separated the juvenile
offense from the last offense, two to seven months and no charges or convictions spanned the
time between the offenses triggering section 12-14.1(b)(1.2). Defendant, unlike the defendant
in Lawson, had no “fair and ample warning” (id.) or time to rehabilitate before the juvenile
offense triggered a natural life sentence.
¶ 102 The State’s other two cases predate Graham and are factually distinguishable. Huddleston
involves a 36-year-old defendant who committed two acts of predatory criminal sexual assault
of a child against two children. Huddleston, 212 Ill. 2d at 111, 127, 816 N.E.2d at 334, 325.
Both acts that triggered the application of section 12-14.1(b)(1.2) pertaining to mandatory life
sentences occurred well into the Huddleston defendant’s adulthood. In Sims, the defendant
argued his 1975 murder conviction for an offense he committed when he was 17 years old
could not constitutionally be used to render him eligible for the death penalty for an offense he
committed 13 years later. Sims, 167 Ill. 2d at 490, 521-22, 658 N.E.2d at 416-17, 431. Unlike
here, the Sims defendant had “fair and ample” Lawson, 2015 IL App (1st) 120751, ¶ 53, 29
N.E.3d 464) warning and time to rehabilitate.
¶ 103 Under the reasoning of Graham, we find the mandatory natural life sentences imposed on
counts IV and V violate the prohibition against cruel and unusual punishment. Graham
prohibits natural life sentences for juveniles who commit nonhomicide offenses. It is contrary
to the analysis in Graham to permit the conduct for which a defendant could not receive a life
sentence to trigger a life sentence for a second offense, committed after defendant’s eighteenth
birthday.
¶ 104 Having found defendant’s natural life sentences violate the eighth amendment, we need not
determine whether they are otherwise unconstitutional.
¶ 105 III. CONCLUSION
¶ 106 We affirm the trial court’s judgment as to defendant’s convictions, we reverse his natural
life sentences, and we remand for resentencing. As part of our judgment, we grant the State its
$75 statutory assessment against defendant as costs of this appeal. 55 ILCS 5/4-2002 (West
2014).
¶ 107 Affirmed in part and reversed in part; cause remanded.
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