People v. Mourning ( 2021 )

NOTICE
This Order was filed under 2021 IL App (4th) 190242-UFILED
February 25, 2021
Supreme Court Rule 23 and is
not precedent except in the Carla Bender
NO. 4-19-0242 4th District Appellate
limited circumstances allowed
under Rule 23(e)(1). Court, IL
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Macon County
MATTHEW L. MOURNING, ) No. 11CF166
Defendant-Appellant. )
) Honorable
) Jeffrey S. Geisler,
) Judge Presiding.
JUSTICE STEIGMANN delivered the judgment of the court.
Presiding Justice Knecht and Justice Turner concurred in the judgment.
ORDER
¶ 1 Held: The appellate court affirmed the trial court’s judgment because (1) the evidence at
trial was sufficient to sustain defendant’s convictions and (2) trial counsel
provided effective assistance.
¶2 Following a bench trial in January 2019, the trial court found defendant, Matthew
L. Mourning, guilty of two counts of predatory criminal sexual assault of a child (720 ILCS 5/12-
14.1 (West 2018)). In April 2019, the court sentenced him to seven years in prison on each count,
to be served consecutively.
¶3 Defendant appeals, arguing (1) the State failed to prove him guilty beyond a
reasonable doubt because “no evidence corroborated M.M.’s inconsistent and unlikely testimony”
and (2) he received ineffective assistance of counsel because counsel did not impeach M.M. with
her contradictory statements from prior trials. We disagree and affirm the trial court.
¶4 I. BACKGROUND
¶5 Because the parties are familiar with the extensive procedural history in this case,
we discuss it only as necessary to put defendant’s arguments in context.
¶6 A. Amended Information
¶7 In February 2011, the State charged defendant by information with two counts of
predatory criminal sexual assault of a child (720 ILCS 5/12-14.1 (West 2010)). Defendant’s first
trial ended in a mistrial. At the second trial, the jury found defendant guilty of both counts, but on
appeal, this court reversed defendant’s convictions and remanded for further proceedings. In
January 2019, the State filed a motion to amend the information, which the trial court granted. The
amended information alleged that in the summer of 2002, defendant, who was 17 years of age or
older, placed his finger in the vagina of M.M., his half-sister, who was less than 13 years of age at
the time of the offense. Defendant’s third trial resulted in the convictions at issue here.
¶8 B. August 2012 Mistrial
¶9 In August 2012, the trial court conducted defendant’s first jury trial. M.M. testified
that defendant was 15 years older than M.M. When M.M. was six years of age, defendant sexually
assaulted her in a bathroom in the family home and in her bedroom. M.M. testified defendant took
her into the bathroom after swimming in the family pool. Defendant closed the bathroom door and
placed his finger in her vagina. Defendant told M.M. it was not “something you talked about.” On
another occasion, M.M. was asleep when defendant entered her bedroom but awake when
defendant inserted his finger into her vagina. She did not remember what defendant was wearing.
M.M. testified that the sexual assaults made her feel dirty and afraid, but defendant told M.M. the
sexual assaults were “normal; it was something big brothers do; and you just don’t talk about it.”
When asked if it hurt when defendant placed his finger into M.M.’s vagina, M.M. testified it did
not. M.M. was the first witness to testify at the August 2012 trial. She testified briefly before
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defense counsel moved for a mistrial, and with no objection by the State, the trial court allowed
the motion.
¶ 10 C. December 2013 Jury Trial
¶ 11 At the December 2013 jury trial, M.M. testified again about defendant sexually
assaulting her in a bathroom in the family home and in her bedroom. M.M. testified that she was
lying in bed because it was bedtime. She recalled defendant coming into her room. Defendant
“used his fingers to penetrate [M.M.’s] vagina.” M.M. did not remember what clothes defendant
wore when he entered her bedroom. Although defendant told six-year-old M.M. that the sexual
assaults were “not something you talk about, but it’s normal,” M.M. felt scared and wrong; she
was afraid but not sure why. She testified she “just didn’t feel right.” M.M. did not tell anyone
because defendant told her “it wasn’t something we talked about.” M.M. believed defendant
“because he was my big brother.” M.M. testified that the sexual assaults happened multiple times
but she could not remember the details of each instance. The jury convicted defendant of both
counts, and the trial court later sentenced defendant to consecutive prison terms of eight and nine
years.
¶ 12 D. First Appeal
¶ 13 Defendant appealed, arguing that the trial court failed to conduct an adequate
inquiry into his posttrial claims of ineffective assistance of counsel pursuant to People v. Krankel,
102 Ill. 2d 181, 464 N.E.2d 1045 (1984). This court agreed and remanded defendant’s case for a
new hearing pursuant to Krankel. See People v. Mourning, 2016 IL App (4th) 140270, ¶ 25, 51
N.E.3d 1122.
¶ 14 In August 2016, the trial court conducted defendant’s Krankel hearing but found
no merit to defendant’s claims.
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¶ 15 E. Second Appeal
¶ 16 Defendant appealed again, arguing (1) the State’s questioning of defendant about
M.M.’s credibility was plain error, (2) M.M.’s mother improperly testified about M.M.’s reporting
of the alleged abuse, and (3) the circuit clerk improperly imposed several fines. This court affirmed
the trial court’s judgment in People v. Mourning, 2017 IL App (4th) 160592-U.
¶ 17 F. The Supreme Court’s Supervisory Order
¶ 18 Defendant appealed to the Illinois Supreme Court, and that court ultimately vacated
this court’s judgment and directed this court to consider the effect of People v. Sebby, 2017 IL
119445, 89 N.E.3d 675, regarding whether the evidence was closely balanced under the first prong
of the plain error doctrine and if a different result was therefore warranted. People v. Mourning,
No. 122306 (Ill. Sept. 27, 2017) (supervisory order).
¶ 19 G. Reversal in Light of Sebby
¶ 20 In December 2017, in People v. Mourning, 2017 IL App (4th) 160592-UB, this
court reversed defendant’s convictions and remanded for further proceedings because the State’s
questioning of defendant regarding M.M.’s credibility was plain error.
¶ 21 H. January 2019 Retrial
¶ 22 On remand, defense counsel requested the transcripts of the prior proceedings to
review in preparation for trial. In January 2019, the trial court conducted defendant’s bench trial.
Immediately before trial, the State made three amendments to the two counts as follows:
(1) changed the phrase “sex organ” to “vagina,” (2) established the sentencing range defendant
faced was 6 to 30 years, and (3) added language that the charges were brought within 10 years of
when M.M. turned 18 years old.
¶ 23 1. The State’s Evidence
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¶ 24 Lynn Cooper testified that during the winter of 2010-11, she worked as a children’s
pastor at Life Foursquare Church. M.M. was 15 years old at that time and participated in the
church’s programming. That December, they began a unit called “True Love Waits,” which
discussed relationships prior to marriage and maintaining what the church deemed sexual purity.
At the end of January 2011, M.M. spoke to Cooper and was crying and shaking. Cooper told M.M.
to speak to her mother and followed up with her parents to ensure that she had done so. Cooper
did not call the police at that time but spoke with police at the beginning of February 2011.
¶ 25 Marianne Mourning testified that she was M.M.’s mother and, with her husband,
Martin, had two sons who were two and four years older than M.M. Defendant was her son with
another man and was about 14 years older than M.M. In September 2001, the entire family and
Marianne’s mother moved into a two-story house in Decatur, Illinois. There were three bedrooms
upstairs; one occupied by the parents, one occupied by the two young boys, and the third occupied
by M.M. Meanwhile, Marianne’s mother and defendant each occupied separate bedrooms on the
first floor. The house had (1) a bathroom inside the parents’ bedroom, (2) one at the end of the hall
on the second floor, and (3) one on the first floor. The house had no pool when they moved in, but
they brought one from their old house and assembled it immediately.
¶ 26 Marianne further testified that defendant had jobs some of the time while he lived
at the house, including working at the Pla-Mor and Cicis Pizza. All but one of his jobs had him
working during the day. Defendant was responsible for watching the other children occasionally
because he was the oldest. Marianne said that during the evening of January 26, 2011, she was
home and M.M. spoke to her shortly after 9:30 p.m. M.M. was crying and upset. Marianne then
called Martin, who immediately came home, and they took M.M. to the police station the next day
to make a report.
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¶ 27 On direct examination, Marianne testified that defendant lived with them two and
a half to three years and moved out in 2004. On cross-examination, Marianne said she did not
remember telling the police that they removed the pool in 2005 and that defendant moved out in
2006. On redirect examination, Marianne explained that defendant moved out in 2004 but returned
home in 2006 for six to eight weeks.
¶ 28 M.M. testified she was about 15 or 16 years younger than defendant. She said they
were close when he lived with them because he babysat all three of the younger children. When
she was 15 years old, she went through the “True Love Waits” program at church, which caused
her to have “flashbacks” about defendant sexually assaulting her that made her feel as if she would
never be pure. She told a friend who urged her to tell the pastor, who then told her to tell her
mother.
¶ 29 M.M. testified that she never told anyone about the assaults before because for a
long time she did not know it was wrong. When she later learned it was wrong, she felt ashamed,
so she never spoke about it. She said that initially the events seemed normal because she did not
know anything different.
¶ 30 M.M. testified that defendant would come into her bedroom and put his hand down
her pants so his finger would go into her vagina. She stated she did not remember the first instance
but could remember two specific instances. One instance took place after she and defendant had
gone swimming in the pool. They were in their swimsuits, and defendant locked them in the
upstairs bathroom. M.M. then described defendant sexually assaulting her by inserting his fingers
into her vagina. M.M. recalled it hurt but she never said anything. M.M. could not recall what
exactly she thought when it occurred. She was uncomfortable but thought it was okay at the time.
She did not recall if defendant said anything to her while the assault took place, but she did
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remember defendant told her that it was something she should not talk about and that it was normal.
¶ 31 M.M. testified about a second instance when defendant came into her bedroom and
got into bed with her. M.M. said she did not have light in her room but slept with the door open so
the light from the hall would come into the room. She knew it was defendant because she saw his
face and his orange work shirt with jeans, which she associated with him working at the Pla-Mor.
Once defendant was in bed with her, he sexually assaulted her by inserting his fingers into her
vagina. M.M. testified she had some memories of ongoing instances of sexual assaults by
defendant but she could not recall specific details of any other instance.
¶ 32 On cross-examination, M.M. testified that she was sure the assaults took place
during the summer of 2003 when she was seven years old because they moved into their house in
the fall of 2002. She said that she had health classes in junior high and her shame came from some
of those classes, although her shame did not prompt her to tell anyone until the church program
when she was a freshman in high school. She could not say which assault took place first. On the
day of the bathroom incident, she said her younger brothers were in the house but she could not
recall if her parents were home. M.M. believed she told Detective Kristopher Thompson in January
2011 about defendant locking the door but then corrected herself to say that she told Thompson
about the incident in the bedroom. She then confirmed that she did not tell Thompson about the
bathroom incident and only came forward later about that incident. M.M. confirmed that she told
Thompson that defendant put her to bed two or three times and that she made no mention of
defendant putting her to bed earlier in her testimony. She also stated that although she could see
defendant’s face due to the light from the hall, she could not remember if he closed the door when
he entered her bedroom. She testified that her parents and brothers were home at the time and their
rooms were both across the hall from her. Neither her parents nor brothers slept with their doors
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open. M.M. could not recall if there were “conversations” with defendant during the sexual
assaults. She recalled only defendant’s repeated statements that “we don’t talk about this.” Defense
counsel did not ask M.M. about her testimony in the prior two trials.
¶ 33 2. Defendant’s Evidence
¶ 34 Kristopher Thompson testified that he was a detective with the Decatur Police
Department. In January 2011, Marianne told him the family moved into their home in August 2001
and defendant moved out of the house in 2006. Marianne did not tell Thompson that defendant left
in 2004 and returned in 2006. Thompson also confirmed that when he spoke with M.M. in January
2011, she told him something happened two or three times in the bedroom when defendant was
putting her to bed but she never said defendant was wearing an orange shirt or coming from work.
¶ 35 On cross-examination, Thompson testified his interview of M.M. was
approximately 11 minutes. M.M. was soft-spoken and emotional as she spoke with Thompson.
¶ 36 Mark Morstatter testified that he had known defendant since 2008 when they
became roommates. He knew of the allegations against defendant, and they remained roommates
when defendant was not in prison. Sometime in 2009, Morstatter went with defendant to the family
home. When they got to the house, M.M. opened the door and gave defendant a big hug. She then
showed defendant pictures from her Facebook of her friends at school and the two talked about
her school. Morstatter did not see M.M. show any hesitation, revulsion, anger, or fear towards
defendant.
¶ 37 Defendant testified that he lived at the family home in the summer of 2002 but then
lived at a variety of addresses over the next several years and only returned for a short time in
2003. He stated he never put his fingers inside M.M.’s vagina. He confirmed that he helped watch
his younger siblings as a babysitter, he went swimming in the pool he helped set up, he worked at
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the Pla-Mor at one point, and at times he was with one child while the others were in a different
part of the house.
¶ 38 After closing arguments, the trial court stated that it “looked at the witnesses who
have testified in this case” and found “it does come down to a credibility issue.” The court found
M.M. to be credible and found that the State had proven both charges of predatory criminal sexual
assault of a child beyond a reasonable doubt. In April 2019, the trial court sentenced defendant to
seven years in prison on each count to be served consecutively.
¶ 39 This appeal followed.
¶ 40 II. ANALYSIS
¶ 41 Defendant appeals, arguing that (1) the State failed to prove him guilty beyond a
reasonable doubt because “no evidence corroborated M.M.’s inconsistent and unlikely testimony”
and (2) he received ineffective assistance of counsel because counsel did not impeach M.M. with
her contradictory statements from the prior trials. We disagree and affirm the trial court.
¶ 42 A. The Evidence Was Sufficient to Support Defendant’s Convictions for
Predatory Criminal Sexual Assault of a Child
¶ 43 Defendant contends that the State failed to present sufficient evidence to prove
defendant guilty beyond a reasonable doubt because (1) no evidence corroborated M.M.’s
testimony and (2) M.M.’s testimony was “inconsistent and unlikely.” We disagree.
¶ 44 1. The Law
¶ 45 The State bears the burden of proving each element of an offense beyond a
reasonable doubt. People v. Gray, 2017 IL 120958, ¶ 35, 91 N.E.3d 876. When a defendant
challenges his convictions arguing that the evidence was not sufficient to prove him guilty, a
reviewing court must (1) consider the evidence in the light most favorable to the State and
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(2) determine whether any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. People v. Brown, 2013 IL 114196, ¶ 48, 1 N.E.3d 888.
¶ 46 “ ‘It remains the firm holding of this court that the testimony of a single witness, if
positive and credible, is sufficient to convict, even though it is contradicted by the
defendant.’ ” People v. Sturgeon, 2019 IL App (4th) 170035, ¶ 55, 126 N.E.3d 703 (quoting
People v. Siguenza-Brito, 235 Ill. 2d 213, 228, 920 N.E.2d 233, 242 (2009)). “It is the
responsibility of the trier of fact to resolve conflicts in the testimony, weigh the evidence, and draw
reasonable inferences from the facts.” People v. Bradford, 2016 IL 118674, ¶ 12, 50 N.E.3d 1112.
“Accordingly, a reviewing court will not substitute its judgment for that of the fact finder on
questions involving the weight of the evidence or the credibility of the witnesses.” People v.
McGath, 2017 IL App (4th) 150608, ¶ 26, 83 N.E.3d 671.
¶ 47 “A reviewing court will not reverse a defendant’s conviction simply because there
is contradictory evidence or because the defendant claims a witness was not credible.” (Internal
quotation marks omitted.) Sturgeon, 2019 IL App (4th) 170035, ¶ 56. “Instead, a reviewing court
will reverse a defendant’s conviction only when the evidence is so unreasonable, improbable, or
unsatisfactory that it justifies a reasonable doubt of the defendant’s guilt.” Id.¶ 48 2. This Case
¶ 49 Defendant argues M.M.’s inconsistent and unlikely claims, uncorroborated by any
physical evidence and denied by defendant, are not believable. Defendant characterizes as suspect
M.M.’s failure to mention during the 11-minute interview with Thompson that on one occasion
defendant wore an orange shirt when he sexually assaulted M.M. in her bedroom. Defendant also
finds incredible M.M.’s testimony that defendant sexually assaulted her when other family
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members were present in the home.
¶ 50 Judging the credibility of a witness, particularly a witness attempting to remember
incidents from her childhood, is no simple task. Although defendant argues that traumatic events
would be in the forefront of M.M.’s mind, this court recognizes that different people remember
events in different ways. One person may never forget a traumatic event and another may not recall
a traumatic event until a triggering event causes that memory to spring to mind years later. The
fact that M.M. recalled certain events or details later on that she did not recall earlier does not
render her testimony suspect.
¶ 51 Defendant also argues that M.M.’s testimony is incredible because it suggests that
defendant sexually assaulted M.M. while family members were present in the home, and therefore,
it is likely defendant would have been seen. This argument is particularly unconvincing. People
who commit egregious criminal acts often lack sound judgment. Defendant is correct that based
upon M.M.’s testimony, he defied the odds by not getting caught in the act, but his risky conduct
does not necessarily make M.M.’s account less credible.
¶ 52 Defendant’s arguments squarely fall within the normal range of credibility
determinations that lie within the fact finder’s judgment. Because there is nothing about M.M.’s
recollection of events that renders it inherently incredible, the evidence was sufficient to convict
defendant of both counts of predatory criminal sexual assault of a child. We will not reverse a trial
court’s credibility determinations unless no rational trier of fact would have come to the same
conclusion. That is not the case here.
¶ 53 B. Defendant Did Not Receive Ineffective Assistance of Counsel
¶ 54 Defendant contends that because counsel obtained the transcripts from the two prior
trials but did not use them to impeach M.M.’s testimony at the January 2019 retrial, counsel was
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ineffective. We disagree.
¶ 55 1. The Law
¶ 56 All defendants enjoy the constitutional right to effective assistance of counsel. U.S.
Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. “To prevail on a claim
of ineffective assistance of counsel, a defendant must demonstrate that counsel’s performance was
deficient and that the deficient performance prejudiced the defendant.” People v. Pope, 2020 IL
App (4th) 180773, ¶ 61, 157 N.E.3d 1055.
¶ 57 To demonstrate deficient performance, a defendant must show his counsel’s
performance fell below an objective standard of reasonableness. Id. ¶ 62. Because the constitution
guarantees only reasonably competent counsel, it is not sufficient for a defendant to show that
counsel’s representation was imperfect. Harrington v. Richter, 562 U.S. 86, 110 (2011)
(citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). Instead, a defendant must show his
counsel’s representation undermined the proper functioning of the adversarial process to such an
extent that the defendant was denied a fair trial. Id. (citing Strickland, 466 U.S. at 686).
¶ 58 To demonstrate prejudice, a defendant must show “that there is a ‘reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.’ ” People v. Moore, 2020 IL 124538, ¶ 29 (quoting People v. Domagala, 2013 IL
113688, ¶ 36, 987 N.E.2d 767). “ ‘The likelihood of a different result must be substantial, not just
conceivable.’ ” Pope, 2020 IL App (4th) 180773, ¶ 63 (quoting Harrington, 562 U.S. at 112). “ ‘A
defendant must satisfy both prongs of the Strickland test and a failure to satisfy any one of the
prongs precludes a finding of ineffectiveness.’ ” Id. (quoting People v. Simpson, 2015 IL 116512,
¶ 35, 25 N.E.3d 601).
¶ 59 A defendant must overcome the strong presumption that the challenged action or
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inaction may have been the product of sound trial strategy. People v. Manning, 241 Ill. 2d 319,
327, 948 N.E.2d 542, 547 (2011). The decision of whether and how to conduct a cross-examination
is generally a matter of trial strategy. People v. Jackson, 2018 IL App (1st) 150487, ¶ 26, 105
N.E.3d 996. Strategic choices are virtually unchallengeable. Manning, 241 Ill. 2d at 333.
“Defendant can only prevail on an ineffectiveness claim by showing that counsel’s approach to
cross-examination was objectively unreasonable.” People v. Pecoraro, 175 Ill. 2d 294, 327, 677
N.E.2d 875, 891 (1997).
¶ 60 2. This Case
¶ 61 In the present case, defense counsel vigorously cross-examined M.M. Defense
counsel questioned M.M. regarding what she learned in health classes concerning appropriate and
inappropriate touching and why nothing in those classes prompted her to report defendant’s sexual
assaults earlier. Defense counsel questioned M.M. about the bathroom incident and her failure to
tell Thompson in January 2011 about the incident. Defense counsel also questioned M.M. about
her interview with Thompson in which M.M. stated that two or three separate assaults took place
in her bedroom. Defense counsel cross-examined M.M. about details surrounding the bedroom
incident, confirming (1) the hallway light was on, (2) her parents’ room was right across the hall,
and (3) she did not recall whether defendant closed her bedroom door.
¶ 62 Defense counsel then called Thompson to testify that M.M. did not tell him that an
incident occurred in the bathroom; instead, M.M. reported to Thompson that the sexual assaults
occurred in M.M.’s bedroom at a time when defendant was putting M.M. to bed. Thompson also
testified that M.M. did not say defendant came home from work in an orange shirt or that the
hallway light illuminated him. When the trial court rendered its verdict, the court noted that defense
counsel revealed inconsistencies between when Thompson interviewed M.M. in January 2011 and
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M.M.’s testimony at trial.
¶ 63 Defense counsel clearly recognized that it was important to discredit M.M.’s
testimony and could have reasonably done so by (1) bringing out M.M.’s testimony at the prior
trials, (2) bringing out what M.M. told Thompson, or (3) both. Defense counsel could have
strategized that if he confronted M.M. with her inconsistent testimony from the prior trials, she
could have explained the inconsistencies away. Conversely, Thompson would not be able to offer
an explanation as to why M.M.’s memory changed. Defense counsel also may have been afraid of
appearing as though he was berating or attacking M.M. with harsh questioning and reasoned that
attacking her credibility by questioning Thompson, a police officer, would provide the same result
with a lower risk of provoking a negative response from the trial court.
¶ 64 Because there are clear reasons why defense counsel may have made the choice to
attack M.M.’s credibility in the manner counsel did, we conclude defense counsel’s choice was a
product of trial strategy. We will not reverse just because a different attorney may have employed
a different strategy. We conclude that defendant received effective assistance of counsel.
¶ 65 III. CONCLUSION
¶ 66 For the foregoing reasons, we affirm the trial court’s judgment.
¶ 67 Affirmed.
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