People v. Mack ( 2021 )

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except
in the limited circumstances allowed under Rule 23(e)(1).
2021 IL App (3d) 170755-UOrder filed February 25, 2021
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2021
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 12th Judicial Circuit,
) Will County, Illinois.
Plaintiff-Appellee, )
) Appeal No. 3-17-0755
v. ) Circuit No. 16-CF-1544
)
FRED MACK JR., ) Honorable
) Carla Alessio-Policandriotes,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
JUSTICE SCHMIDT delivered the judgment of the court.
Justice Holdridge concurred in the judgment.
Presiding Justice McDade, dissented.
ORDER
¶1 Held: The circuit court did not abuse its discretion in stopping jury deliberations
to reinstruct the jury with the correct definition of sexual penetration. The
record does not support defendant’s contention that the State argued that
defendant was guilty based on an uncharged act.
¶2 Defendant, Fred Mack Jr., appeals his conviction for predatory criminal sexual assault of
a child. Defendant argues that the Will County circuit court erred when it stopped jury deliberations
to reinstruct the jury with a different definition of sexual penetration. Defendant also argues that
plain error occurred when the State argued during its closing argument that defendant was guilty
based on an uncharged act that was only admissible as propensity evidence. We affirm.
¶3 I. BACKGROUND
¶4 A grand jury charged defendant with predatory criminal sexual assault of a child (720 ILCS
5/12-14.1(a)(1) (West 2004)). The indictment alleged that on or between September 11, 2002, and
July 28, 2004, defendant knowingly committed an act of sexual penetration with B.H. by placing
his finger in B.H.’s vagina. The indictment alleged that, at the time of the incident, defendant was
17 years old or older and B.H. was under 13 years old.
¶5 The State filed a motion in limine to present other-crimes evidence, namely, a recording of
defendant’s interview with the police and B.H.’s testimony about other incidents involving
defendant. The court granted the motion, ruling that the State would be permitted to introduce
propensity evidence at the trial. The court further ordered that the jury would be given limiting
instructions concerning this evidence several times throughout the trial.
¶6 The matter proceeded to a jury trial. B.H. testified that she was 26 years old at the time of
the trial. Defendant previously lived with B.H.’s aunt, Renee Lockhart. When B.H. was a child,
defendant sometimes picked her up from school, babysat her, and bought her gifts. On some
occasions, B.H. and defendant were alone at Lockhart’s house. During those times, defendant
sexually abused B.H. The abuse started when B.H. was four years old. In the beginning, it would
happen two to three times per week. Defendant would kiss her vagina, insert his finger into her
vagina, and simulate sexual intercourse with clothes on. When B.H. got older, defendant would
kiss her, put his mouth on her breasts, and place his penis in her mouth. When B.H. was
approximately 10 years old, defendant attempted to insert his penis into her vagina on one
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occasion. Initially, B.H. said that defendant’s penis was “kind of in [her] vagina,” and she later
said that it was in her vagina.
¶7 When B.H. was 11 to 12 years old, defendant inserted his finger into her vagina at least 10
times. Defendant would initiate these encounters while he and B.H. were watching television in
the living room at Lockhart’s house. Sometimes the encounters occurred in defendant’s bedroom.
B.H. never initiated the encounters. After the abuse, defendant sometimes told B.H. that they had
to wait until they were married. He often referred to her as his wife. When B.H. was approximately
12 years old, defendant told her she should start thinking of him as her uncle. He did not sexually
abuse her after that. B.H. did not tell anyone about the abuse until she was 19 years old. She came
forward to the police when she was 24 years old.
¶8 Kenneth Simpson, a retired detective, testified that he interviewed defendant in connection
with the instant case. The interview was recorded. During the interview, defendant stated that he
had approximately 25 sexual encounters with B.H. when she was seven to nine years old. Between
September 11, 2002, through July 28, 2004, when B.H. was 11 to 12 years old, defendant would
have been 50 to 52 years old.
¶9 The court admitted a video recording of Simpson’s interview with defendant into evidence
and allowed the State to play it for the jury. On the recording, defendant admitted to engaging in
sexual contact with B.H. at Lockhart’s house. Defendant said that on several occasions, he touched
B.H.’s vaginal area over her underwear, and she touched his penis. On one occasion, defendant’s
penis touched B.H.’s tongue. One time, defendant placed his mouth on B.H.’s vagina. Defendant
said he may have touched B.H.’s vaginal area under her underwear once. On one occasion,
defendant’s penis touched B.H.’s vagina, but it did not enter her vagina. Defendant stated that B.H.
initiated these encounters, and he allowed it to happen because he was sexually lonely. This
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occurred when B.H. was between seven and nine years old. Defendant estimated he had a
maximum of 25 sexual encounters with B.H. Defendant eventually told B.H. that it was wrong and
they could not have sexual contact anymore. He told her they would be together when she was
older if it was God’s will.
¶ 10 Defendant testified that he did not digitally penetrate B.H. between September 11, 2002,
and July 28, 2004. Defendant’s mother died in 2000, and he had no sexual contact with B.H. after
that. All the sexual contact that defendant had with B.H. occurred when B.H. was seven to nine
years old. Defendant said the statements he made on the recording of his interview with Simpson
were accurate. Defendant maintained that he had never inserted his finger into B.H.’s vagina.
Defendant admitted that he called B.H. his wife.
¶ 11 During the jury instruction conference, the parties agreed to give the jury the following
version of Illinois Pattern Jury Instructions, Criminal, No. 11.65E (4th ed. 2000): “The term
‘sexual penetration’ means any contact, however slight, between the sex organ or anus of one
person and the sex organ of another person.”
¶ 12 During the State’s closing argument, the prosecutor stated:
“And I know that you’ve heard throughout the course of this case
the kind of abuse incurred upon [B.H.] The defendant’s mouth on her
vagina, her mouth on his penis. The defendant’s hand on her vagina, her
hand on his penis. Most importantly, she told you that the defendant put his
finger on her vagina when she was between 11 and 12 years old
approximately ten times. And that’s what he’s charged with today is that he
digitally penetrated her when she was in junior high between the ages of 11
and 12.”
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¶ 13 The State noted that to prove defendant guilty of predatory criminal sexual assault of a
child, it had to prove that defendant knowingly committed an act of sexual penetration with B.H.
The State argued: “Ladies and gentlemen, this was not done by mistake. This defendant didn’t
accidentally put his finger inside of her. He knowingly committed the act of sexual penetration.
He digitally penetrated her vagina.”
¶ 14 The State discussed how the age requirements for the offense had been met. The State then
argued:
“The other instruction that I wish to talk about is one which is one
sentence. It says, the term sexual penetration means any act, however slight,
between the sex organ or anus of one person and the sex organ of another
person. Yes, there’s a definition for sexual penetration, and it is however
slight. Doesn’t matter. I don’t know if she was even asked how far did it go
in. It doesn’t matter. However slight.”
¶ 15 The State then discussed the fact that other-crimes evidence had been introduced in the
case. The State argued: “The charge is the digital penetration by the defendant upon [B.H.] The
other sex acts that you heard can be used for propensity. The defendant committed those other sex
acts, so he has the propensity, he has the intent, the motive to commit the one charge.”
¶ 16 During defendant’s closing argument, defense counsel stated: “[W]e are here because
[defendant] did not do the crime that’s charged that stands before you. [Defendant] did not commit
the offense of predatory criminal sexual assault of a child in that he placed his finger in the vagina
of [B.H.], a minor.” Defense counsel noted that defendant had admitted that he engaged in various
sexual acts with B.H. until 2000. Defense counsel stated that the trial only concerned one offense
that happened between September 11, 2002, and July 28, 2004. Defense counsel noted that the
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evidence of other offenses could only be used by the jury to determine propensity, intent, motive,
and design. Defense counsel argued: “You are surely tempted to convict him based on these bad
acts that he did. I understand that. But those are in the past and we’re here on this. We’re here on
one count only. September 11th, 2002 to July the 28th in the year 2004.” Defense counsel then
argued:
“[The State] read a jury instruction to you a little bit ago, a couple actually,
and the term sexual penetration was read to you. Nowhere that I heard in
this testimony was there anything about or anything in the—strike that.
There’s nothing in the Bill of Indictment as charged alleging anything about
an anus. Read that closely, ladies and gentlemen.”
¶ 17 After closing arguments, the court read the jury the instructions that the parties had
previously discussed.
¶ 18 During deliberations, the jury requested to see a copy of the indictment, which had been
admitted into evidence. The parties agreed to this request. The prosecutor then stated that he had
noticed that the instruction on sexual penetration that the court gave the jury was not applicable to
the case. The court agreed that the instruction given to the jury did not correctly state the law.
Defense counsel objected to the jury being given a new instruction. The court said that it would
not give the jury a new instruction unless they requested clarification. The court sent a copy of the
bill of indictment to the jury.
¶ 19 Later, the court called the attorneys back into the courtroom. The court said that it had
ordered the jury to stop deliberating. The court stated that it was the court’s burden to make sure
the jury was properly advised of the law they were required to follow. Over defense counsel’s
objection, the court called the jurors in and reinstructed them on the definition of sexual
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penetration. The court told the jury that it had given the jury a definition “in error.” The court
stated that it was going to read the correct definition to the jury and requested that they disregard
the previous instruction. The court then gave the jury the following instruction: “The term sexual
penetration means any intrusion, however slight, of any part of the body of one person into the sex
organ of another person; including, but not limited to, cunnilingus, fellatio and penetration.” A
short time later, the jury rendered a verdict of guilty.
¶ 20 Defense counsel moved for a mistrial based on the court’s reinstruction of the jury, and the
court denied the motion.
¶ 21 The court sentenced defendant to 10 years’ imprisonment.
¶ 22 II. ANALYSIS
¶ 23 A. Reinstruction of the Jury
¶ 24 Defendant argues that the court erred in interrupting jury deliberations and reinstructing
the jury with a new definition of sexual penetration. Defendant contends that the new instruction
presented a new theory of criminal liability to the jury and completely changed the type of sexual
contact the State was required to prove. Defendant also argues that the new instruction prevented
him from presenting a proper closing argument. Defendant asserts that defense counsel tailored
his closing argument to the definition of sexual penetration initially submitted to the jury. The
parties agree that the standard of review is abuse of discretion. See People v. Laabs, 2011 IL App
(3d) 090913, ¶ 18.
¶ 25 “It is well established that it is the duty of the trial court to accurately instruct the jury as
to the law to be applied in a given case.” People v. Watson, 26 Ill. App. 3d 1081, 1085 (1975).
Jury instructions are required to be settled before closing arguments. People v. Millsap, 189 Ill. 2d
155, 163 (2000). The purpose of this requirement is to “allow[ ] the attorneys to know the law on
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which the jury will be instructed so that the attorneys can tailor their arguments accordingly.” Id.“[T]he court should not submit new charges or new theories to the jury after the jury commences
its deliberations.” Id. at 161.
¶ 26 We find the decision in People v. Johnson, 285 Ill. App. 3d 307 (1996) to be instructive.
In Johnson, the defendant was charged with knowingly resisting a peace officer during a Terry
stop. Id. at 308. The State tendered a jury instruction that stated: “ ‘A person is not authorized to
use force to resist an arrest which he knows is being made by a peace officer, even if he believes
that the arrest is unlawful and the arrest in fact is unlawful.’ ” Id. at 308-09. The defendant did not
object, and the instruction was given to the jury. Id. at 309. During deliberations, the jury sent a
note asking if they could substitute the phrase “authorized act” for the word “arrest” in the
instruction. Id. Over the defendant’s objection, the court amended the jury instruction to state
“ ‘authorized act or arrest.’ ” Id. On appeal, the Johnson court held that the circuit court properly
amended the instruction because the pattern instruction that it had initially given did not adequately
state the law as it applied to the case. Id. at 310.
¶ 27 Here, like in Johnson, the instruction submitted to the jury did not adequately state the law
as applied to the case. Section 12-12(f) of the Criminal Code of 1961 (720 ILCS 5/12-12(f) (West
2004)) provided:
“ ‘Sexual penetration’ means any contact, however slight, between the sex
organ or anus of one person by an object, the sex organ, mouth, or anus of
another person, or any intrusion, however slight, of any part of the body of
one person or of any animal or object into the sex organ or anus of another
person ***.”
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The portion of the above definition that applied to the conduct charged in the instant case was “any
intrusion, however slight, of any part of the body of one person *** into the sex organ *** of
another person.” Id. The original jury instruction described another part of the definition of sexual
penetration—contact between sex organs—which did not apply to the conduct charged in the
instant case. It was the court’s duty to accurately instruct the jury as to the law, and the court acted
within its discretion in amending the instruction to accurately state the definition of sexual
penetration that applied to this case.
¶ 28 Even if we were to find that the new instruction was improper because it was given after
jury deliberations commenced (see Millsap, 189 Ill. 2d at 163), any error would be harmless. The
new instruction did not cause unfair surprise or prejudice to defendant. The State’s theory of
liability throughout the case was that defendant committed an act of sexual penetration with B.H.
in that he digitally penetrated her vagina. Defendant responded to this theory of liability during his
closing argument. Specifically, defendant argued that, although he had engaged in sexual contact
with B.H. when she was younger, he did not digitally penetrate her when she was 11 to 12 years
old as charged in the indictment.
¶ 29 We reject defendant’s reliance on Millsap, 189 Ill. 2d 155. In Millsap, the defendant was
convicted of home invasion and robbery. Id. at 159-60. Although there was evidence that two
individuals participated in the offenses, the State never pursued an accountability theory, did not
request that the jury be instructed on accountability, and did not argue to the jury that the defendant
was guilty based on an accountability theory. Id. at 159. During jury deliberations, the jury sent a
question to the court asking whether an accomplice was just as guilty as the offender who causes
injury in a home invasion. Id. In response to this question, the court instructed the jury on
accountability. Id. at 159-60. On appeal, the court held that the defendant was deprived of his due
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process right to a fair trial because he was denied his right to address in closing arguments the
theory of guilt upon which he may have been convicted. Id. at 165-66.
¶ 30 Here, unlike in Millsap, the new instruction on the definition of sexual penetration did not
introduce a new theory of liability that defendant was unable to address during closing argument.
The State’s theory of liability throughout the case was that defendant committed an act of sexual
penetration by digitally penetrating B.H.’s vagina. The indictment charged defendant with this
conduct, and the State asserted repeatedly during its closing argument that this was the only charge
before the jury. The defense was clearly aware that this was the State’s theory of liability, and
defendant’s theory of defense was directly responsive to it. Defense counsel explicitly stated
during closing argument that defendant did not commit the charged offense because he did not
digitally penetrate B.H.’s vagina.
¶ 31 We acknowledge that defense counsel argued during closing argument that the State’s
definition of sexual penetration did not apply because the indictment did not allege “anything about
an anus.” However, even under the incorrect definition of sexual penetration initially given to the
jury, the State was not required to prove anal penetration. Rather, the incorrect definition initially
required a showing of contact between the sex organ of one person and the sex organ or anus of
another person. Moreover, defense counsel’s comments about the definition of sexual penetration
were only a small part of his closing argument. As discussed previously, the crux of defense
counsel’s closing argument was that, while defendant engaged in sexual contact with B.H. when
she was younger, defendant did not digitally penetrate B.H. when she was 11 to 12 years old.
¶ 32 B. Closing Argument
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¶ 33 Defendant argues that plain error occurred when the State argued during its closing
argument that defendant was guilty of an act of sexual penetration that was not charged in the
indictment. Specifically, defendant contends that the following statement was improper:
“The other instruction that I wish to talk about is one which is one
sentence. It says, the term sexual penetration means any act, however slight,
between the sex organ or anus of one person and the sex organ of another
person. Yes, there’s a definition for sexual penetration, and it is however
slight. Doesn’t matter. I don’t know if she was even asked how far did it go
in. It doesn’t matter. However slight.”
Defendant argues that, in making this statement, the State must have been referring to the incident
where defendant penetrated B.H.’s vagina with his penis when she was 10 years old because this
was the only conduct that fit the definition of sexual penetration given by the State.
Defendant contends that this was improper because this conduct was not charged and was only
admitted to show propensity.
¶ 34 Defendant admits that this issue was not preserved for appeal but requests that we review
the issue for plain error. Under the plain error doctrine, a reviewing court may consider an
unpreserved claim of error when a clear and obvious error occurred and (1) “the evidence is so
closely balanced that the error alone threatened to tip the scales of justice against the defendant,
regardless of the seriousness of the error” or (2) “that error is so serious that it affected the fairness
of the defendant’s trial and challenged the integrity of the judicial process, regardless of the
closeness of the evidence.” People v. Thompson, 238 Ill. 2d 598, 613 (2010). “The first
step of plain-error review is determining whether any error occurred.” Id.- 11 -
¶ 35 In the instant case, no error occurred. The record does not support defendant’s
interpretation of the challenged portion of the State’s closing argument. The prosecutor stated
repeatedly throughout his closing argument that defendant had been charged with digital
penetration. The prosecutor also expressly stated that the evidence of offenses other than digital
penetration could be used by the jury only to determine defendant’s propensity to commit the
charged offense. While it is true that the incident in which defendant penetrated B.H.’s vagina with
his penis is the only one that meets the definition of sexual penetration given by the State, the
prosecutor did not specifically refer to this incident when discussing the definition of sexual
penetration. Given the prosecutor’s repeated assertions throughout closing argument that
defendant was charged with digital penetration, we believe that it is clear that the prosecutor was
referring to digital penetration when making the comments challenged by defendant. Accordingly,
defendant’s contention that the State argued during closing argument that defendant was guilty of
the charged offense based on uncharged conduct is not supported by the record.
¶ 36 III. CONCLUSION
¶ 37 For the foregoing reasons, we affirm the judgment of the circuit court of Will County.
¶ 38 Affirmed.
¶ 39 JUSTICE McDADE, dissenting:
¶ 40 I believe that reversible error occurred when the court reinstructed the jury concerning the
definition of sexual penetration during jury deliberations rather than granting defendant’s motion
for a mistrial. Accordingly, I respectfully dissent.
¶ 41 Jury instructions should be settled before closing arguments so that the attorneys may tailor
their arguments to the law on which the jury may be instructed. Millsap, 189 Ill. 2d at 163. “[T]he
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court should not submit new charges or new theories to the jury after the jury commences its
deliberations.” Id. at 161.
¶ 42 Here, the parties centered their closing arguments around an incorrect definition of sexual
penetration. While the prosecutor stated during closing arguments that defendant was charged with
digitally penetrating B.H., the prosecutor stated that the definition of “sexual penetration” was
“any act, however slight, between the sex organ or anus of one person and the sex organ of another
person.” Supra ¶ 14. This error was exacerbated by the fact that the court then instructed the jury
with the same incorrect definition of sexual penetration before deliberations commenced. This
incorrect definition posed a high risk of confusing the jury. It was especially prejudicial to
defendant because the State had presented propensity evidence that defendant committed the
uncharged act of placing his penis inside B.H.’s vagina. As the majority recognizes, this uncharged
conduct was the only act that met the incorrect definition of sexual penetration given to the jury
during closing arguments and the court’s initial jury instructions. Accordingly, the jury may have
determined that the State established the element of sexual penetration based on this uncharged
conduct.
¶ 43 Under the circumstances presented in this case, it was not enough for the circuit court to
reinstruct the jury with the correct definition of sexual penetration after it learned that it had given
the jury a definition that did not apply to the charged offense. Because of the high risk of confusion
to the jury and the risk that the jury would convict defendant based on an uncharged offense,
defendant should have been granted a new trial.
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