People v. Yarber ( 2021 )

NOTICE
2021 IL App (5th) 170357-UNOTICE
Decision filed 08/02/21. The
This order was filed under
text of this decision may be NO. 5-17-0357 Supreme Court Rule 23 and is
changed or corrected prior to
not precedent except in the
the filing of a Petition for
Rehearing or the disposition of
IN THE limited circumstances allowed
under Rule 23(e)(1).
the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Saline County.
)
v. ) No. 15-CF-326
)
RONALD YARBER, ) Honorable
) Walden E. Morris,
Defendant-Appellant. ) Judge, presiding.
________________________________________________________________________
JUSTICE CATES delivered the judgment of the court.
Presiding Justice Boie and Justice Vaughan concurred in the judgment.
ORDER
¶1 Held: The defendant failed to establish (a) that the trial court committed plain
error in admonishing potential jurors about the Rule 431(b) principles; (b)
that his counsel’s failure to object to hearsay evidence constituted
ineffective assistance of counsel; and (c) that the prosecutor’s comments
during closing arguments were unfairly prejudicial. Defendant’s
convictions on 8 counts of predatory criminal sexual assault of a child and
61counts of criminal sexual assault are vacated where there was insufficient
evidence to support those convictions. Defendant’s convictions and
sentences as to all other counts of predatory criminal sexual assault of a
child and criminal sexual assault are affirmed as there was sufficient
evidence to establish defendant’s guilt beyond a reasonable doubt.
¶2 Following a jury trial, the defendant, Ronald Yarber, was convicted of 16 counts
of predatory criminal sexual assault of a child and 238 counts of criminal sexual assault.
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The defendant was sentenced to 14 years in prison on each count of predatory criminal
sexual assault of a child and 6 years in prison on each count of criminal sexual assault.
All sentences were to run consecutively. On appeal, the defendant contends that his
convictions should be reversed and the cause remanded for a new trial because (a) the
trial court failed to comply with Illinois Supreme Court Rule 431(b) (eff. July 1, 2012)
during voir dire; (b) the defendant’s trial counsel provided ineffective assistance in that
he failed to object to the admission into evidence of the victim’s notebook containing
inadmissible hearsay; (c) the prosecutor made improper and unfairly prejudicial
comments during closing argument, and (d) the State’s evidence was not sufficiently
specific to prove beyond a reasonable doubt that the defendant was guilty of 254 separate
offenses. For reasons that follow, we affirm in part and vacate in part.
¶3 I. BACKGROUND
¶4 A. The Information
¶5 On November 6, 2015, the defendant was charged by information with 256 counts
of criminal sexual assault for alleged abuses against a single victim over a span of 5½
years. In counts 1 through 16, the State charged the defendant with predatory criminal
sexual assault of a child in violation of section 12-14.1(a)(1) of the Criminal Code of
1961 (Code) (720 ILCS 5/12-14.1(a)(1) (West 2008)), a Class X felony. The State
alleged that during each month from June 2004 through September 2004, the defendant,
who was 17 years of age or older, knowingly committed four different acts of sexual
penetration upon A.E.A., who was under 13 years of age at the time of the offenses. The
acts alleged were penile penetration (counts 1, 5, 9, 13), digital penetration (counts 2, 6,
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10, 14), cunnilingus (counts 3, 7, 11, 15), and fellatio (counts 4, 8, 12, 16). In counts 17
through 256, the State charged the defendant with criminal sexual assault, alleging that
the defendant, a family member of A.E.A., committed acts of sexual penetration against
A.E.A., who was under 18 years of age, in violation of section 12-13(a)(3) of the Code
(720 ILCS 5/12-13(a)(3) (West 2010)), a Class 1 felony. The State asserted that the
defendant committed separate acts of penile penetration, digital penetration, cunnilingus,
and fellatio against A.E.A. during the month of October 2004, and in each month
thereafter, through and including September 2009.
¶6 On June 8, 2016, the State filed six additional counts of criminal sexual assault,
alleging the defendant, knowing that A.E.A. was unable to understand the nature of the
acts or was unable to consent, committed acts of sexual penetration in that he placed his
penis in her vagina in violation of section 12-13(a)(2) of the Code (720 ILCS 5/12-
13(a)(2) (West 2010)). The State alleged that these acts occurred during the years 2004
through 2009, and it filed a separate count for each year (counts 257-262).
¶7 B. The Trial
¶8 The defendant’s trial began on July 20, 2016. During the State’s case, the jury
learned that the victim, A.E.A., had been diagnosed with autism spectrum disorder
(formerly known as Asperger’s syndrome) and a learning disability. The State called Dr.
James Peterson, a licensed clinical psychologist, to explain the nature of A.E.A.’s autism.
Dr. Peterson evaluated A.E.A. in 2008, to determine her eligibility for social security
disability. He did not treat A.E.A. or provide any services to her. Dr. Peterson testified
that people with A.E.A.’s type of autism typically have difficulty engaging in social and
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emotional interaction, understanding non-verbal communication, and forming
friendships. During the evaluation, Dr. Peterson noted that A.E.A. had a “flat affect” and
was “rather unsophisticated for a 16-year-old” girl. School records indicated that A.E.A.
demonstrated poor adjustment in social situations. She had been bullied in school and she
exhibited symptoms of depression and isolation. Dr. Peterson testified that the
intelligence testing indicated that A.E.A. had good verbal skills, but her ability to
visualize, plan, and organize was poor. During cross-examination, Dr. Peterson stated
that he had no indication during the evaluation that A.E.A. was being abused at home. He
also stated that he did not ask her about any abuse.
¶9 A.E.A. was 24 years old at the time of trial. A.E.A. testified that she was born on
October 7, 1991, and she moved in with her aunt, Lesa Yarber, when she was seven years
old. A.E.A. lived with Lesa and the defendant at the defendant’s residence in Saline
County from the time she was 7 years old, until she was 17½ years old. The family then
moved to a residence in Gallatin County. A.E.A. recalled that she briefly stayed with her
father, Clay Alvey, and her stepmother, Cheryl Alvey, in August and September of 2007.
Except for that two-month period, A.E.A. lived with Lesa and the defendant until she was
21 years old. She then moved in with her grandparents, Harry and Carolyn Alvey. Her
grandmother had cancer and passed away in September 2015. A.E.A. continued to live
with Harry Alvey through the time of trial.
¶ 10 A.E.A. identified the defendant and stated that he had been sexually abusing her
since she was 12 years old. A.E.A. described the defendant as “very mentally controlling
and abusive.” She recalled that the defendant sometime smacked her leg so hard that it
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left red handprints. She also recalled that when she was 10 or 11, the defendant would
“hug her from behind,” putting his penis against her butt, and that when she attempted to
walk away, he would pull her back. A.E.A. indicated that this occurred every few
months.
¶ 11 A.E.A. testified that the defendant first engaged her in sexual contact when she
was 12½ years old, during the summer between sixth grade and seventh grade. A.E.A.
stated that the defendant barged into her room while she was masturbating. The defendant
offered to help her and said he would get a wet towel. A.E.A. protested because they
were related, but the defendant indicated it would be okay because they were not blood
relatives. The defendant placed a dry towel over A.E.A.’s eyes, but she “peeked” and saw
him “licking her down there.” She also recalled that when she was 12 years old, the
defendant penetrated her vagina with a giant ink pen that she had gotten from her aunt’s
workplace. A.E.A. testified that defendant forced her to suck his penis for the first time in
November 2004, after her thirteenth birthday. She had strep throat, and the defendant
stayed at home with her while Lesa went to work. A.E.A. was in the bathroom, kneeling
by the toilet, and the defendant walked in on her. He told A.E.A. that if she was going to
have crushes on black guys, she needed to learn “how to suck the penis and suck it right,”
and “you need to practice on me first.” The defendant tried to get her to “deep throat” his
penis. A.E.A. testified that the defendant did not wear a condom during that assault, but
he began wearing two condoms after that. A.E.A. testified that the defendant had been
penetrating her vaginally and anally since she was 14 years old, and he always wore two
condoms. A.E.A. stated that the defendant also penetrated her vagina with his finger.
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A.E.A. testified that “the ink pen, licking, and fingering” occurred before she was 13
years old.
¶ 12 A.E.A. stated that the sexual assaults happened frequently, and they varied.
“Sometimes it would happen every day and sometimes it would happen every few weeks
and sometimes anywhere in between.” She said that “it also depended on Lesa’s work
schedule because he did it while she was gone.” A.E.A. clarified that the acts of penile
penetration, fingering, fellatio, and cunniligus were “very continuous” and the anal
penetration occurred about once every year.
¶ 13 A.E.A. recalled that from the time she was 9 or 10 years old, until she was 15, she
was alone with the defendant during the afternoon because the defendant worked until
noon and Lesa worked until 5 p.m. A.E.A. began home-schooling at age 15, because of
bullying at school. At that time, Lesa was working different shifts at a hospital, and the
defendant became a “stay at home” dad, caring for two foster children, Haley and
Brianna. When Lesa worked the evening shift, the defendant would sexually assault
A.E.A. after he put the foster children down for a nap. A.E.A. testified that when she was
16 years old, the defendant fostered three young children, whom he and Lesa eventually
adopted. A.E.A. testified that the defendant would make sure that those children were
asleep or occupied before he entered her room. The defendant then removed his clothing
and whispered, let’s do “the Big-O thing,” before he penetrated her vagina with his penis.
She also testified that the defendant called her a “newbie.” He told A.E.A. that she
needed to practice with him, because if she had sex with a boy, and her hymen “popped,”
it would bleed and freak out the boy. A.E.A. testified that the defendant had her practice
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rubbing his penis with her hand. A.E.A. also described the defendant’s preferred
positions and methods of sexual penetration. A.E.A. stated that assaults most often took
place in her bedroom, but they sometimes happened in the defendant’s bedroom.
¶ 14 A.E.A. testified that after she moved in with her grandparents, the abuse stopped
for two years. Then, in April 2015, and again in June 2015, the defendant asked her to
come to his home and play with a new puppy. While she was playing with the puppy, the
defendant approached her and said, “let’s do the Big-O thing.” Each time, the defendant
took her into his bedroom and penetrated her vaginally. The defendant told A.E.A. to tell
her doctors that she masturbated with three fingers if they asked whether she was
sexually active.
¶ 15 In November 2015, A.E.A. reported the abuse to her preacher’s wife, and then she
told her grandfather and stepmother. A.E.A. explained that she decided to report the
abuse so that the defendant would stop and so she could move forward with her life. She
was also concerned because two girls, whom the defendant and Lesa adopted, were
approaching the age at which A.E.A. was first assaulted. A.E.A. testified that she did not
tell anyone about the abuse earlier because the defendant had “a temper,” and she was
afraid of him. She did not tell Lesa because the defendant said Lesa would not believe it
and would send A.E.A. to a mental institution. A.E.A. also stated that she had been in
denial about the abuse.
¶ 16 Shortly after A.E.A. reported the abuse, she got a notebook and began to write
about what she experienced when the defendant sexually assaulted her. A.E.A. identified
her notebook during trial. She testified that the first page contained a picture that she had
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drawn of the defendant’s penis and testicles, and the two condoms that he wore filled
with ejaculate. The remainder of the notebook contained A.E.A.’s recollections and
descriptions of the assaults that she endured. A.E.A. testified that the abuses she had
written about in the notebook were the same as those she had testified about, but her
notebook included more descriptions about things like the color of the defendant’s penis.
A.E.A.’s notebook was admitted into evidence, without objection, and her drawing was
shown to the jury.
¶ 17 A.E.A. recalled that after she came forward with allegations of the abuse, Lesa
was not supportive. When Lesa took A.E.A. for a medical examination, Lesa told A.E.A.
what to say. A.E.A. was instructed to say she had been sexually active within the past
year. A.E.A. did as she was told, but later reported that she had been sexually abused by
the defendant. A.E.A. testified that she reported the abuse to Sheryl Woodham, a
counselor at the Guardian Center, 1 a police officer, and the medical providers who
performed examinations and testing for sexually transmitted diseases. A.E.A. testified
that she suffered from a number of physical and emotional issues as a result of the abuse,
including urinary incontinence which started after she was penetrated with objects.
¶ 18 During cross-examination, A.E.A. stated that when the foster kids came into the
house, she felt “pushed aside, but probably more worried about them than anything else.”
A.E.A. acknowledged she had crushes on boys, but she never dated any of them. A.E.A.
reiterated that the first time the defendant forced her to have oral sex was in November
1
The Guardian Center is a not-for-profit child advocacy center that provides child sensitive
forensic interviews and confidential services to children and families affected by sexual and physical
abuse.
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2004, when she was 13 years old. Before that, the defendant penetrated her with a giant
ink pen, and he performed “the licking, the fingering, and the towel thing.” She said that
the defendant put on condoms in front of her and he used baby lotion as a lubricant.
A.E.A. testified that she began counseling in 2006. She did not reveal the abuse to her
counselors because she was dealing with other issues, including obsessive compulsive
disorder, depression, anxiety, and Asperger’s syndrome.
¶ 19 The State’s next witness, Brianna Newton Hutcherson, was six or seven years old,
when she and her two younger sisters were fostered by the defendant and his wife.
Brianna testified that A.E.A., who was then 13 or 14 years old, also lived in the home.
Brianna recalled that the defendant only interacted with A.E.A. He would lock Brianna
and her sisters in their room while he interacted with A.E.A. Brianna stated that the
defendant would go into A.E.A.’s room and would not come out for a long time. She said
this happened “a lot”—“multiple times during the day and night.”
¶ 20 Sheryl Woodham, the director of the Guardian Center, testified in the State’s case.
Woodham testified that she had special training in conducting forensic interviews of
children and adult sexual assault victims. On November 3, 2015, Woodham conducted a
recorded interview with A.E.A. During the interview, A.E.A. made disclosures about the
sexual abuse she endured. Woodham noted that A.E.A. displayed some of the common
characteristics of child sexual abuse accommodation syndrome. Woodham testified that
delayed disclosure, secrecy, fear, and recantation are common characteristics of the
syndrome. Woodham opined that A.E.A.’s delayed disclosure was not unusual, and that
children often realize that they can do nothing to stop the abuse, so they cope by
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acquiescing or submitting to the offender, particularly if they depend on the offender for
fulfillment of basic needs.
¶ 21 Casey Carlyle, A.E.A.’s primary care provider, testified in the State’s case.
Carlyle was a nurse practitioner, specially trained to perform medical examinations on
victims of sexual abuse and assault. On December 3, 2015, Carlyle performed a sexual
assault examination on A.E.A. During the evaluation, A.E.A. gave a history of having
been sexually assaulted on multiple occasions by the defendant while her aunt was at
work. A.E.A. reported that the sexual assaults began a few months before her thirteenth
birthday. She stated that the defendant forced her to provide him with oral sex, that he
penetrated her vagina with his fingers and his penis multiple times while wearing two
condoms, and that he penetrated her anus with his penis. She described the vaginal and
anal penetration as painful. A.E.A. stated that the last assault occurred four months prior
to the examination. She denied prior sexual activity with anyone other than the defendant.
She felt the defendant took advantage of her mental health issues. A.E.A. stated that she
decided to report the abuse because she feared that her adopted sisters might be subjected
to similar abuses.
¶ 22 During the physical examination, Carlyle noted that A.E.A. had a flat affect,
anxiety, and an elevated heart rate. The examination revealed four hymen defects. The
hymen defects were “non-specific,” meaning that there were no acute tears, but they were
consistent with A.E.A.’s history of sexual abuse. Carlyle made a finding of sexual abuse
based upon a clear and consistent history of sexual abuse with non-specific physical
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findings. Carlyle also found emotional abuse because A.E.A.’s aunt, Lesa Yarber, asked
A.E.A. not to identify the alleged perpetrator and to deny prior sexual activity.
¶ 23 During cross-examination, Carlyle testified that she provided psychiatric care to
A.E.A. prior to March 2015. Carlyle stated that she did not routinely ask A.E.A. about
sexual activity, and that A.E.A. denied being sexually active the few times she was asked.
Carlyle was asked, hypothetically, whether the hymen defects could have resulted from
masturbating with objects. Carlyle answered, hypothetically, that it would depend on the
size of the object. Carlyle noted that she did not have substantial evidence to support the
hypothetical posed. Carlyle testified that these types of defects typically result from
sexual intercourse, but they could result from blunt force trauma.
¶ 24 Dr. Kathy Swafford also testified in the State’s case. Dr. Swafford was a
physician, board certified in trauma and sexual abuse, and she had been previously
qualified as an expert in the circuit court. Dr. Swafford trained Casey Carlyle and
continued to oversee Carlyle’s sexual abuse examinations. Dr. Swafford reviewed
Carlyle’s report on A.E.A.’s examination and agreed that A.E.A. had a clear and
consistent history of child sexual abuse with non-specific physical findings. During cross-
examination, Dr. Swafford testified that A.E.A.’s hymen defects could have been caused
by a variety of things, including sexual penetration by an erect penis.
¶ 25 The State’s final witness was A.E.A.’s 75-year-old grandfather, Harry Alvey.
Alvey testified that he became A.E.A.’s guardian when A.E.A. turned 18 years old. In
2015, A.E.A. told Alvey that the defendant had sexual relations with her. Alvey then
summoned his daughter, Lesa Yarber, and his son, Clay Alvey, to his home and told them
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about A.E.A.’s disclosure. Alvey testified that he had not suspected that A.E.A. was
being physically abused, but thought she was, perhaps, being mentally abused because
she isolated herself and spent a lot of time in her room.
¶ 26 The State then rested, and the defendant called Lesa Yarber as his first witness.
Lesa testified that A.E.A. was seven years old when she came to live with Lesa and her
first husband. Shortly thereafter, Lesa separated from her husband. Lesa began dating the
defendant, and they eventually married. Lesa and A.E.A. moved into the defendant’s
trailer home in Saline County in 1998. From 2003-2008, Lesa worked at Turner Manor, a
residential facility for persons with developmental disabilities. The defendant also
worked at Turner Manor. Lesa worked from 8 a.m. to 4:30 p.m., and the defendant
ordinarily worked a split shift—from 5 a.m. to 9 a.m., and 2:30 p.m. to 8:30 p.m. Lesa
initially testified that A.E.A. was not home alone with the defendant during this time.
Lesa later acknowledged that while she was at work, she often left A.E.A. at home alone
with the defendant.
¶ 27 Lesa testified that she and the defendant decided to become foster parents in 2006.
They were licensed in June 2007, and the defendant became a full-time, stay-at-home
foster dad. Lesa recalled that when the foster children arrived, A.E.A. began spending
more time in her room. A.E.A. did not want to interact with them, and she eventually
asked to move. During August and September of 2007, A.E.A. lived with her biological
father and his wife. That situation proved difficult, so A.E.A. returned to the defendant’s
home in October 2007.
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¶ 28 Lesa testified that she handled any issues that related to the sexual development of
A.E.A. and the foster girls. She recalled that A.E.A. began to masturbate a lot with a wide
variety of objects, including “hairbrushes, barbie dolls, anything with handles on them.”
Lesa removed those objects from A.E.A.’s room so that A.E.A. did not get an infection or
injure herself. Lesa did not inform medical providers about A.E.A.’s masturbation
activities because they did not ask.
¶ 29 Lesa testified that A.E.A. first made allegations against the defendant a few weeks
after A.E.A.’s twenty-third birthday. Lesa did not plan a birthday party for A.E.A.
because it was too soon after the death of Lesa’s mother. A few weeks later, Lesa had a
birthday celebration for her father, Harry Alvey. During the party, A.E.A. and the
defendant got into an argument. A week later, A.E.A. told her stepmother that the
defendant was sexually abusing her. Lesa learned of the allegations the following day.
Lesa testified that she confronted A.E.A., asking why A.E.A. was just now reporting the
allegations. A.E.A. replied that if she was not going to get any more birthday presents,
she might as well tell. When informed of A.E.A.’s allegations, Lesa could not believe
they were true. Lesa did not believe the defendant would have an interest in a young
child, let alone someone with developmental disabilities. Lesa testified that A.E.A.
looked up to the defendant, like a father, and that the defendant looked out for her and
protected her.
¶ 30 Lesa testified that she called Melissa Gaither, a health care provider at the Ferrell
Hospital Family Practice, to schedule a medical evaluation for A.E.A. Lesa also phoned
Jeremy Jobst, one of A.E.A.’s former counselors, and informed him of the situation. Lesa
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testified that she wanted Jobst to talk with A.E.A. and determine what had occurred
before making a report, but Jobst indicated that he was required to make a hotline report
of suspected abuse. Lesa admitted that she told A.E.A. what to disclose to Melissa
Gaither. A.E.A. was told to say that she had been sexually active and needed to get
checked out. Lesa also informed Melissa Gaither that A.E.A. had been sexually active
and needed a pap smear, herpes testing, and all of the sexually transmitted disease (STD)
testing. After all of the testing was completed, Melissa asked A.E.A. some additional
questions, and A.E.A. “started in on her talk.” At that point, Lesa told Melissa that “we
know who it is,” and it has already been reported, and “there was no need to come in and
explain the whole story to you.” Lesa acknowledged that she wanted A.E.A. tested
because both she and the defendant had herpes. Lesa testified that she and the defendant
did not use condoms during sex relations because Lesa could not conceive, and she never
found condoms in the house.
¶ 31 Bonnie Mahan testified in the defendant’s case. Mahan was an administrator at
Turner Manor when Lesa Yarber worked there. Mahan testified that she had a daughter
who was autistic and that Mahan and Lesa often compared notes. Mahan recalled that
Lesa frequently brought A.E.A. to work. Mahan observed that A.E.A. said anything that
came to her mind, and that she and Lesa often “redirected” A.E.A., advising A.E.A. to
refrain from talking about private matters in public. Mahan testified that she was trained
and certified in crisis prevention and intervention with persons on the autism spectrum.
Based on those credentials, Mahan was allowed to offer an expert opinion that it was
unlikely that A.E.A. would ever withhold information based on fear. Mahan stated that
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A.E.A. could not keep a secret, and that if A.E.A. was involved in sexual activity with
anyone, she would have talked about it. During cross-examination, Mahan acknowledged
that she had no training or experience in dealing with victims of sexual abuse and assault.
¶ 32 Jeremy Jobst testified that he conducted a crisis screening on A.E.A. when she was
16 or 17 years old. During the screening, A.E.A. reported suicidal thoughts, but she did
not report that she was being abused at home. Jobst testified that while he was a youth
coordinator at the health department, A.E.A. participated in a youth group that advocated
for mental health awareness. During that time, A.E.A. spoke about her mental health
issues and some prior abusive behavior by her biological mother, but she did not mention
the defendant. During cross-examination, Jobst acknowledged that at the time A.E.A.
spoke about her mother’s abusive behavior, she had been away from her mother for
several years.
¶ 33 The defendant testified that he first met A.E.A. at Turner Manor, when she was six
or seven years old. A year later, he and Lesa got together. Lesa and A.E.A. moved into
the defendant’s home around 1998 or 2000. He described A.E.A. as “a handful.” She did
not sit still and said whatever came into her mind. The defendant testified that he only
corrected A.E.A. a few times. The defendant recalled that when A.E.A. was 13 or 14
years old, he hit her with an empty paper towel roll because she “tried to run her mom up
against the wall a couple of times.” The defendant testified that Lesa took care of matters
surrounding the sexual development of A.E.A., including her hygiene and masturbation
habits. Lesa also took care of the girls if they had “yeast infections or needed butt cream.”
He consciously stayed away from that because he was not comfortable with it. The
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defendant denied having any type of sexual relations with A.E.A. He stated that he liked
grown women, and that “all he had was grown women.” The defendant also denied using
condoms. He testified that he did not use condoms because he was married and Lesa was
not able to have children. The defendant also testified that he had visible bleeding blisters
on his penis as a result of herpes.
¶ 34 The defense rested, and the State offered no evidence in rebuttal. Following
closing arguments, the jury received its final instructions. The jury began its deliberations
at 12:05 p.m. At approximately 1:32 p.m., the jury sent a note asking for the dates that
A.E.A. was “living with Ron & Lesa Yarber” and “with Clay and Cheryl Alvey.” At 1:41
p.m., pursuant to an agreement between the defendant and the State, the court sent the
following response: “August and September 2007.” At 3:09 p.m., the jury sent a second
note, announcing “they were done.” The jury returned not guilty verdicts on counts 153
through 160 but found the defendant guilty on all other counts. When polled, each juror
indicated that these were his or her verdicts. The defendant’s posttrial motion was denied.
The defendant was sentenced to 14 years in prison on each count of predatory criminal
sexual assault and 6 years in prison on each count of criminal sexual assault. All
sentences were to be served consecutively. The defendant’s motion to reconsider his
sentences was denied and this appeal followed.
¶ 35 II. ANALYSIS
¶ 36 A. Rule 431(b) Admonishments
¶ 37 Initially, the defendant contends that the trial court failed to comply with Illinois
Supreme Court Rule 431(b) (eff. July 1, 2012) while questioning prospective jurors about
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the principles outlined in People v. Zehr, 103 Ill. 2d 472 (1984) (superseded by Ill. S. Ct.
R. 431(b) (eff. July 1 2012)). 2 The defendant claims that the trial court impermissibly
collapsed all four principles into one general proposition of law, and thereby failed to
provide each potential juror with the opportunity to respond to each distinct principle.
The defendant also claims that the length of time between the trial court’s recitation of
the Zehr principles and the questioning of prospective jurors about whether they
understood and accepted those principles was too long to satisfy Rule 431(b). The
defendant acknowledges that he forfeited this issue by failing to raise it in the trial court
and requests review under the plain-error doctrine. The defendant argues that the
evidence in the case was so closely balanced that the court’s clear and obvious error
alone threatened to tip the scales of justice against him.
¶ 38 The plain-error doctrine permits a reviewing court to consider an unpreserved
error when either (1) “a clear or obvious error occurred and 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) “a clear or obvious error occurred and
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. Piatkowski, 225 Ill. 2d 551, 565 (2007). In both instances, the burden of persuasion
remains with the defendant. People v. Herron, 215 Ill. 2d 167, 187 (2005). When
2
In People v. Zehr, 103 Ill. 2d 472, 477 (1984), the Illinois Supreme Court held that “essential to
the qualification of jurors in a criminal case is that they know that a defendant is presumed innocent, that
he is not required to offer any evidence in his own behalf, that he must be proved guilty beyond a
reasonable doubt, and that his failure to testify in his own behalf cannot be held against him.” The “Zehr
principles” were adopted in Illinois Supreme Court Rule 431(b) (eff. July 1, 2012).
17
conducting plain-error review, the first step is to determine whether there was a clear and
obvious error. Herron, 215 Ill. 2d at 187. Therefore, we must initially determine whether
the trial court complied with the requirements of Rule 431(b) when the court questioned
prospective jurors.
¶ 39 Supreme Court Rule 431 (eff. July 1, 2012) sets forth certain requirements for
voir dire examinations in criminal cases. Rule 431(b) provides as follows:
“(b) The court shall ask each potential juror, individually or in a group,
whether that juror understands and accepts the following principles: (1) that
the defendant is presumed innocent of the charge(s) against him or her;
(2) that before a defendant can be convicted the State must prove the
defendant guilty beyond a reasonable doubt; (3) that the defendant is not
required to offer any evidence on his or her own behalf; and (4) that if a
defendant does not testify it cannot be held against him or her; however, no
inquiry of a prospective juror shall be made into the defendant’s decision
not to testify when the defendant objects.
The court’s method of inquiry shall provide each juror an opportunity to
respond to specific questions concerning the principles set out in this section.” Ill.
S. Ct. R. 431(b) (eff. July 1, 2012).
¶ 40 Rule 431(b) mandates “a specific question and response process.” People v.
Thompson, 238 Ill. 2d 598, 607 (2010). The trial court is required to ask prospective
jurors whether they understand and accept the enumerated principles in Rule 431(b).
Thompson, 238 Ill. 2d at 607. While prospective jurors may be questioned “individually
18
or in a group,” the method of inquiry requires that each prospective juror have an
opportunity for a response regarding his or her understanding and acceptance of those
principles. Thompson, 238 Ill. 2d at 607. There is, however, no requirement that the trial
court recite a principle and then question each potential juror on that individual principle.
People v. Birge, 2021 IL 125644, ¶ 34. “Under the plain language, a court complies with
Rule 431(b) if it (1) instructs the prospective jurors on the four principles, (2) asks if the
prospective jurors understand those principles, and (3) asks if the prospective jurors
accept those principles. Birge, 2021 IL 125644, ¶ 34.
¶ 41 The record shows that the trial court addressed the entire group of prospective
jurors at 9:48 a.m. The court introduced the parties, read the statement of the case,
including a summary of the charges against the defendant, and identified the potential
witnesses. At 10:20 a.m., the court admonished the entire group of prospective jurors:
“Now, I’ve told you this is a criminal trial. And there are four cardinal or
primary principles that apply to all criminal trials in the State of Illinois.
And I’m going to tell you what those four cardinal principles are at this
time. And then when you are being questioned individually later, I will ask
you specifically whether your understand and accept those four principles.”
¶ 42 The court immediately related all of the Rule 431(b) principles to the entire group
of prospective jurors. After the court briefly commented on the importance of jury
service, the first 15 prospective jurors were seated in the jury box. The court addressed
the first prospective juror and asked whether she had any knowledge about the case, the
parties, and the witnesses; whether she had prior jury experience; and whether she or a
19
close friend or family member had been either accused of a crime or the victim of a
crime. In the final question in the series, the court asked: “I have told you that there are
four principles of law that apply to this case. Do you understand and accept those four
principles?” The first prospective juror immediately replied, “Yes.” The court proceeded
to ask each of the remaining 14 prospective jurors that same series of questions. When
each prospective juror was asked whether he or she understood and accepted the four
principles, each responded, “Yes.” The questioning of the first 15 prospective jurors
concluded at 11:02 a.m. During a 30-minute recess, eight jurors were selected from the
first panel. At 11:31 a.m., the next panel of 15 prospective jurors was seated in the jury
box. At that time, the trial court did not restate the four 431(b) principles. The court
proceeded to question each prospective juror in the same fashion and with same series of
questions. When each prospective juror was asked whether he or she understood and
accepted the four principles, each responded affirmatively. The questioning of the second
panel concluded at 12:07 p.m. Four jurors and two alternate jurors were selected from
that panel, and the jury selection concluded at 12:45 p.m.
¶ 43 In this case, the record shows that the trial court carefully admonished the entire
group of prospective jurors about each of the Rule 431(b) principles, and then questioned
each prospective juror individually about his or her understanding and acceptance of
those principles. The manner of questioning offered each prospective juror an opportunity
to reply, and each of the potential jurors gave a verbal response. Contrary to the
defendant’s contention, the trial court was not required to question the prospective jurors
about each principle separately. See Birge, 2021 IL 125644, ¶¶ 34, 41.
20
¶ 44 The defendant also argues that the time period between the trial court’s recitation
of the Rule 431(b) principles and its inquiry into whether prospective jurors understood
and accepted the principles was too long to satisfy the requirements of Rule 431(b). Rule
431(b) does not set forth any particular limit on the amount of time between the trial
court’s recitation of the four principles and the questioning of prospective jurors about
those principles. Nevertheless, our colleagues in the Fourth District have considered this
issue and determined that in keeping with the purpose of Rule 431(b), the questioning
ought to occur within a reasonable time after the court recites the principles. See People
v. Wrencher, 2011 IL App (4th) 080619, ¶ 44 (an hour’s delay, including 15-minute
recess, between the recitation of the 431(b) principles and asking prospective jurors
whether they understood and accepted those principles “tends to defeat the purpose of the
questioning and threatens to reduce it to a pro forma exercise”); see also People v.
Bowens, 407 Ill. App. 3d 1094, 1105 (2011) (although it would be a better practice for the
court to ask prospective jurors whether they understood and accepted the Rule 431(b)
principles immediately (or close thereto) after its explanation of those principles, the
short delay, without a recess, between the recitation of the 431(b) principles and
questioning of prospective jurors about them was not error under the facts of the case).
¶ 45 Here, immediately prior to reciting the Rule 431(b) principles, the trial court
warned the entire group of jurors that they would be asked whether they understood the
principles and accepted them. The record shows there was no more than a few minutes’
delay between the court’s recitation of the Rule 431(b) principles and the commencement
of questioning the first 15 prospective jurors. There was, however, more than a one-hour
21
gap, including a 30-minute recess, between the recitation of the Rule 431(b) principles
and the court’s questioning of the second group of 15 prospective jurors. Under the facts
presented here, we believe the gap was too long to satisfy the purpose underlying the
Rule 431(b) inquiry. Wrencher, 2011 IL App (4th) 080619, ¶ 44. In this regard, the trial
court’s method of inquiry was error.
¶ 46 Having concluded that there was a clear error, we must determine whether the
evidence was closely balanced. When determining whether the evidence was closely
balanced, a reviewing court must evaluate the totality of the evidence and conduct a
qualitative, commonsense assessment of that evidence within the context of the case.
People v. Sebby, 2017 IL 119445, ¶ 53.
¶ 47 The testimony in this case has been set forth in great detail in this disposition. That
testimony established that the defendant committed acts of predatory criminal sexual
abuse and criminal sexual assault against A.E.A. over a span of 5½ years. A.E.A. testified
that the defendant sexually assaulted her on a regular basis—sometimes every day,
sometimes every few weeks—from 2004 through 2009. A.E.A. described in great detail
four specific assaults that were seemingly seared into her memory. She also described the
defendant’s preferred positions and methods of sexual penetration. A.E.A. testified that
she did not report the abuse earlier because the defendant said that no one would believe
her, and she would be sent to a mental institution. A.E.A.’s testimony remained clear and
consistent throughout a lengthy cross-examination. A.E.A.’s testimony was partially
corroborated by Brianna Newton Hutcherson. During the months in which Brianna and
her sisters were fostered by the defendant, Brianna observed that the defendant only paid
22
attention to A.E.A. Brianna saw the defendant enter A.E.A.’s room and not come out for
a long time. Brianna stated that this happened “multiple times” during the day and night.
Nurse practitioner Casey Carlyle and Dr. Kathy Swafford testified the victim gave a clear
and consistent history of sexual abuse and that the hymen defects found during the sexual
abuse examination were consistent with vaginal penetration by an erect penis. Sheryl
Woodham, a licensed clinical social worker, testified that A.E.A.’s delayed reporting of
the sexual offenses was not unusual, and that sexually abused children often delay
disclosure.
¶ 48 In his defense, the defendant attempted to attack the credibility and reliability of
A.E.A.’s testimony through his own witnesses. The defendant’s wife, Lesa Yarber,
initially testified that the defendant was rarely home alone with A.E.A. Lesa later
conceded that while she was at work, she often left A.E.A. at home with the defendant.
Lesa Yarber admitted that she instructed A.E.A. about what to say and what to withhold
from physician’s assistant, Melissa Gaither, when A.E.A. was tested for sexually
transmitted diseases. The defendant offered Lesa Yarber’s testimony that A.E.A.
masturbated frequently, using objects with a handle, as a possible explanation for
A.E.A.’s hymen defects, but this explanation was unsupported by medical evidence. The
defendant’s other witness, Bonnie Mahan, was permitted to offer an expert opinion that
A.E.A. would not withhold disclosure out of fear. Mahan, however, acknowledged that
she had no experience or training in dealing with victims of sexual assault or sexual
trauma. The defendant testified, but he simply denied that he had sexual relations with
A.E.A.
23
¶ 49 In this case, the transcript of the trial proceedings reveals the nuances of motive,
bias, and interest in the witnesses’ testimony. Having evaluated the totality of the
evidence and having conducted a qualitative, commonsense assessment of that evidence
within the context of the case, we do not find that the evidence was closely balanced.
Rather, the evidence of defendant’s guilt was overwhelming. Therefore, the defendant
has failed to demonstrate that the trial court’s lack of compliance with Rule 431(b)
constituted plain error.
¶ 50 B. Ineffective Assistance of Trial Counsel
¶ 51 Next, the defendant contends that his trial counsel was ineffective in that he failed
to object to the admission of the victim’s notebook as substantive evidence. The
defendant claims that a drawing of the defendant’s penis and other writings made in the
notebook constituted inadmissible hearsay, that no recognized hearsay exception applied,
and that the evidence was unfairly prejudicial. The defendant also claims that his counsel
failed to ask for a limiting instruction on the use of this evidence, and as a result, the jury
was permitted to page through the notebook and read about details that were not part of
the victim’s in-court testimony.
¶ 52 To succeed on a claim of ineffective assistance of trial counsel, a defendant must
prove that defense counsel’s performance fell below an objective standard of
reasonableness, and that but for counsel’s unprofessional errors, there was a reasonable
probability that the outcome of the proceeding would have been different. Strickland v.
Washington, 466 U.S. 668, 687 (1984); People v. Johnson, 218 Ill. 2d 125, 143-44
(2005). A reasonable probability is a probability sufficient to undermine confidence in
24
the outcome. Strickland, 466 U.S. at 694. To establish deficient performance, the
defendant must overcome the strong presumption that the challenged action or inaction
was the result of sound trial strategy. People v. Perry, 224 Ill. 2d 312, 341-42 (2007).
Generally, decisions regarding what to object to and when to object are considered
matters of trial strategy. Perry, 224 Ill. 2d at 344. However, a court need not determine
whether counsel’s performance was deficient before examining the prejudice suffered by
the defendant. Strickland, 466 U.S. at 697; Perry, 224 Ill. 2d at 342. If it is easier to
dispose of an ineffective assistance claim on the ground of lack of sufficient prejudice,
that course should be followed. Strickland, 466 U.S. at 697; Perry, 224 Ill. 2d at 342.
¶ 53 During direct examination, A.E.A. testified that she wrote down her recollections
of some of the sexual assaults in a notebook. She authenticated the notebook, its drawing
and written content as her own. The notebook was marked as People’s Exhibit 1, and it
was later admitted into evidence without objection and without a limiting instruction on
its use. The content of the notebook is handwritten, and some of the writing is difficult to
decipher. With the exception of a little more commentary regarding the assaults about
which A.E.A. testified, the content of the notebook revealed nothing new and was
cumulative of A.E.A.’s in-court testimony. Thus, the notebook’s content was merely
duplicative of properly admitted evidence. In addition, defendant’s counsel had the
opportunity to test that evidence when he extensively cross-examined A.E.A. After
reviewing the record, we find that the defendant has not satisfied the prejudice prong of
Strickland and, therefore, cannot prevail on his ineffective assistance claim. As a result,
25
we need not determine whether the failure to object to the admissibility of the notebook
and to seek a limiting instruction constituted deficient representation.
¶ 54 C. Propriety of the State’s Closing Argument
¶ 55 Next, the defendant argues that the prosecutor committed reversible error during
closing arguments because she repeatedly vouched for the credibility of the victim,
describing her as “the most compelling and credible witness,” with a “phenomenal”
memory, while attacking the credibility of Lesa Yarber. Specifically, the defendant
contends that the prosecutor improperly argued that Lesa Yarber discounted the medical
evidence of sexual assault and “sabotaged the case at every opportunity.” The defendant
concedes that he did not object to these comments at the time they were made, and he did
not raise this issue in his posttrial motion. He claims that the improper conduct deprived
him of a fair trial, and he requests plain-error review under both prongs of the plain-error
doctrine. 3
¶ 56 Closing arguments must be reviewed in their entirety and the challenged remarks
must be viewed in context. People v. Macri, 185 Ill. 2d 1, 62 (1998). Generally,
prosecutors have wide latitude in making their closing arguments. People v. Glasper, 234
Ill. 2d 173, 204 (2009). Prosecutors are permitted to “comment on the evidence and any
fair, reasonable inferences it yields,” but they may not argue facts not contained in the
record. Glasper, 234 Ill. 2d at 204. Prosecutors are also permitted to denounce the
3
Earlier in this disposition, we determined that the evidence in this case was not closely balanced.
Therefore, the alleged error will be reviewed under the second prong of plain error. Under the second
prong, unpreserved error may be considered when “a clear or obvious error occurred and 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.” Piatkowski, 225 Ill. 2d at 565.
26
accused, reflect on the credibility of the witnesses, and urge the fearless administration of
the law, provided those arguments are based on facts in the record or inferences fairly
drawn from those facts. People v. Bryant, 94 Ill. 2d 514, 523-24 (1983). Prosecutors are
not to engage in inflammatory and unfounded closing arguments, and each case must be
decided on its own facts. Bryant, 94 Ill. 2d at 523. A prosecutor’s comments during
closing argument will result in reversible error only when they create substantial
prejudice against the defendant such that it is impossible to determine whether the jury’s
verdict resulted from the comments or the evidence. Macri, 185 Ill. 2d at 62. In
determining whether the prosecutor’s remarks are clearly prejudicial, courts will consider
the content of the language used, its relationship to the evidence, and its effect on the
defendant’s right to a fair and impartial trial. People v. Kliner, 185 Ill. 2d 81, 151-52
(1998).
¶ 57 In this case, the defendant questioned the credibility and reliability of A.E.A.’s
testimony throughout the trial. During closing argument, the prosecutor described
A.E.A.’s testimony as specific and very consistent, and her demeanor as open and
forthcoming. In contrast, the prosecutor argued that Lesa Yarber’s testimony was not
credible. The prosecutor asserted that Lesa Yarber had attempted to sabotage the case
throughout her testimony. The prosecutor pointed to Lesa Yarber’s admission that she
instructed A.E.A. to refrain from disclosing the sexual abuse and the identity of the
offender. The prosecutor also pointed to Lesa Yarber’s testimony regarding A.E.A.’s
masturbation habits and argued that Lesa Yarber attempted to discount the medical
evidence regarding the hymen defects. The record shows that the prosecutor’s comments
27
regarding Lesa Yarber’s credibility were based on Lesa Yarber’s own testimony and the
reasonable inferences drawn from it. The record also demonstrates that the trial court
properly instructed the jury that the attorney’s closing arguments were not evidence.
After reviewing the entirety of the prosecutor’s closing argument and the challenged
remarks in context, we find that the challenged remarks were reflections on the credibility
of the witnesses and the plausibility of the defendant’s theory of defense. Accordingly,
we find no error, and therefore no plain error.
¶ 58 D. Sufficiency of the Evidence
¶ 59 In his final two points, the defendant challenges the sufficiency of the evidence.
The defendant claims that A.E.A.’s testimony was too vague to prove beyond a
reasonable doubt that he committed 254 separate and distinct acts of sexual penetration.
He also claims that A.E.A.’s own testimony disproved some of the charges. He requests
that this court vacate those convictions for which there is insufficient proof.
¶ 60 When a defendant challenges the sufficiency of the evidence, the reviewing court
must determine whether, “after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” (Emphasis in original.) Jackson v. Virginia, 443 U.S. 307,
319 (1979); People v. Collins, 106 Ill. 2d 237, 261 (1985). It is the role of the trier of fact
to make determinations regarding the credibility of the witnesses, the weight to be
accorded their testimony, and the reasonable inferences to be drawn from the evidence,
and a reviewing court will not substitute its judgment for that of the trier of fact on those
matters. Collins, 106 Ill. 2d at 261-62. A reviewing court, however, is not absolutely
28
bound by the trier of fact’s verdict, as the court’s ultimate duty is to independently
evaluate the reasonableness of a guilty verdict. People v. Cunningham, 212 Ill. 2d 274,
280 (2004). A defendant’s conviction will be reversed only if the evidence is so
unreasonable, improbable, or unsatisfactory that no reasonable person could accept it
beyond a reasonable doubt. People v. Wright, 2017 IL 119561, ¶ 70; Cunningham, 212
Ill. 2d at 280.
¶ 61 Initially, the defendant argues that A.E.A.’s testimony was too vague to prove
beyond a reasonable doubt that he committed 254 separate and distinct acts of sexual
penetration. Citing People v. Letcher, 386 Ill. App. 3d 327, 333 (2008), the defendant
acknowledges that Illinois courts have accepted vague testimony where a “resident child
molester” has continuous access to his victim. In such cases, the victim typically testifies
to repeated acts of molestation occurring over a substantial time period, but lacking any
meaningful reference point, the victim is unable to offer many specific details, dates, or
distinguishing characteristics as to individual assaults. The defendant argues, however,
that even under this permissive standard, the large number of counts alleged herein does
not support 254 separate and distinct penetrations.
¶ 62 In Letcher, 386 Ill. App. 3d 327, the defendant was charged with 14 counts of
predatory criminal sexual assault of a child. During the trial, the victim testified that the
defendant began abusing her when she was six years old. The victim stated that, in her
old house, and again in her new house, the defendant used his penis on her bottom and
her vagina. The victim testified that the acts of sexual penetration occurred “too many
times to remember.” The victim described another occurrence where the defendant used
29
his penis on the victim’s bottom and vagina, stating that it happened in the new house,
two days before Christmas. Letcher, 386 Ill. App. 3d at 329-30. The trial court found
defendant guilty on eight counts of predatory criminal sexual assault of a child involving
penile penetration, and not guilty on six counts of predatory criminal sexual assault of a
child involving digital penetration. The court sentenced the defendant to 20 years on each
count, and the sentences were to run consecutively. Letcher, 386 Ill. App. 3d at 330. On
appeal, the Letcher court was asked to consider whether the victim’s testimony that the
various incidents happened “too many times to remember,” without pointing to a specific
number of incidents, was sufficient to support the convictions on eight counts of the
information. The court noted that there was little case law in Illinois addressing when
generic evidence about the number of sexual abuse offenses may be sufficient to prove
guilt beyond a reasonable doubt on all counts, and it considered cases from foreign
jurisdiction, including a commonly cited case, People v. Jones, 792 P.2d 643, 645 (Cal.
1990). Letcher, 386 Ill. App. 3d at 333-35.
¶ 63 In People v. Jones, the California Supreme Court was asked to consider whether a
victim’s generic testimony as to frequent molestations involving oral copulation by the
defendant at five separate locations was sufficient to support the defendant’s convictions
on four counts of lewd conduct on a child under the age of 14. Jones, 792 P.2d at 645. In
considering the sufficiency of generic testimony, the Jones court pointed out that “even
generic testimony (e.g., an act of intercourse ‘once a month for three years’) outlines a
series of specific, albeit undifferentiated, incidents each of which amounts to a separate
30
offense, and each of which could support a separate criminal sanction.” (Emphases in
original.) Jones, 792 P.2d at 654. The Jones court went on to state:
“The victim, of course, must describe the kind of act or acts committed with
sufficient specificity, both to assure that unlawful conduct indeed has occurred and
to differentiate between the various types of proscribed conduct (e.g., lewd
conduct, intercourse, oral copulation or sodomy). Moreover, the victim must
describe the number of acts committed with sufficient certainty to support each of
the counts alleged in the information or indictment (e.g., ‘twice a month’ or ‘every
time we went camping’). Finally, the victim must be able to describe the general
time period in which these acts occurred (e.g., ‘the summer before my fourth
grade,’ or ‘during each Sunday morning after he came to live with us’) to assure
the acts were committed within the applicable limitation period. Additional details
regarding the time, place or circumstance of the various assaults may assist in
assessing the credibility or substantiality of the victim’s testimony, but are not
essential to sustain a conviction.” (Emphases in original.) Jones, 792 P.2d at 655-
56.
¶ 64 The Letcher court noted that the Jones court and courts in other jurisdictions had
held that a child victim need not specify the exact number of times the sexual acts
occurred so long as there were some “reliable indicia” that the number of acts charged
actually occurred. See Letcher, 386 Ill. App. 3d at 334-35 (and cases cited therein).
Applying the considerations articulated in Jones, the Letcher court determined that there
was sufficient evidence to affirm six of the eight counts of penile penetration. The court
31
concluded, however, that the victim’s general testimony that the sexual abuse happened
“too many times to remember” was not sufficiently specific to support inferences of two
additional instances of penile penetration beyond a reasonable doubt. Letcher, 386 Ill.
App. 3d at 335-36.
¶ 65 Here, A.E.A. testified in great detail about specific acts committed by the
defendant beginning when she was 12½ years old. She testified specifically about the
first time each type of penetration occurred. A.E.A. stated that the defendant performed
cunnilingus on her for the first time when she was 12½ years old. She specifically
recalled that it was during the summer between sixth grade and seventh grade. A.E.A.
testified that when she was 12 years old, the defendant penetrated her with the giant ink
pen that she had gotten from her aunt’s workplace. She stated that “the ink pen, licking,
and fingering” all began before she was 13 years old. A.E.A. testified that she was 13
years old when the defendant placed his penis into her mouth and forced her to perform
fellatio on him for the first time. She recalled that this act occurred in November 2004,
when she stayed home from school because of strep throat. A.E.A. stated that the
defendant had been penetrating her vaginally and anally with his penis since she was 14
years old. A.E.A. also testified the sexual acts occurred most often in her bedroom and
sometimes in the defendant’s bedroom.
¶ 66 A.E.A. provided the time frame for the acts of sexual abuse and sexual assault.
She stated that the sexual acts began when she was 12½ years old, and that, with the
exception of a two-month period in August and September 2007, she was continuously
subjected to them until she moved into the home of her grandparents. When questioned
32
about the frequency of the sexual acts, A.E.A. distinguished between the anal penetration
and the other acts. She specifically stated that the anal penetration occurred infrequently,
about once a year, and that the acts of penile/vaginal penetration, fingering, fellatio, and
cunnilingus were “very continuous.” She stated that “sometimes it would happen every
day and sometimes it would happen every few weeks and sometimes anywhere in
between.” She noted that “it also depended on Lesa’s work schedule because he did it
while she was gone.” The time frames identified by A.E.A. align with the evidence
regarding the hours that the defendant worked while employed at Turner Manor, and the
time when he became a stay-at-home foster dad.
¶ 67 Any issues with regard to A.E.A.’s credibility as to when, where, and how often
these acts of sexual penetration occurred was for the jury to resolve. The fact that A.E.A.
did not furnish specific dates is not detrimental to the case as victims of repeated abuse
are typically unable to provide such details. See Letcher, 386 Ill. App. 3d at 333 (noting
that a victim of repeated abuse by an individual inside the home is typically “unable to
furnish many specific details, dates or distinguishing characteristics as to individual acts
or assault” (internal quotation marks omitted)). A.E.A.’s testimony outlined a series of
specific, albeit undifferentiated, incidents, over a span of more than five years, each of
which amounted to a separate offense and each of which could support a separate
criminal penalty.
¶ 68 Furthermore, we note that each verdict form was clearly limited to one type of
sexual penetration that allegedly occurred in a particular month and year, and those time
periods comported with A.E.A.’s testimony regarding the 5½-year time period during
33
which she was repeatedly sexually assaulted by the defendant. We presume the jury
understood the separate verdict forms and the relevant time periods because it found the
defendant not guilty of eight counts of criminal sexual assault allegedly committed in
August 2007 and September 2007. Therefore, with the exceptions noted below, we find
that the testimony of A.E.A. was sufficiently specific to sustain the jury’s findings of
guilt beyond a reasonable doubt on the charges of predatory criminal sexual assault of a
child and criminal sexual assault.
¶ 69 The defendant also argues that A.E.A.’s own testimony disproved some of the
charges. We agree.
¶ 70 In this case, the defendant was charged with 16 counts of predatory criminal
sexual assault based upon four separate types of penetration—penile, digital, cunnilingus,
and fellatio—occurring in the months of June 2004, July 2004, August 2004, and
September 2004. Because A.E.A. turned 13 years old on October 7, 2004, the defendant
was charged with individual counts of criminal sexual assault for committing those same
four types of penetration on a family member in October 2004, and in each month
thereafter, through and including September 2009. Thus, the State apportioned the four
types of sexual penetration allegedly committed each month into individual counts in the
information. The jury was given a separate set of verdict forms (guilty and not guilty)
conforming to each specific offense charged in the information.
¶ 71 A.E.A. specifically testified that the first time the defendant placed his penis into
her mouth and forced her to perform fellatio on him was when she was 13 years old. She
stated that it occurred in November 2004, when she stayed home from school because of
34
strep throat. Thus, the State failed to prove beyond a reasonable doubt that the defendant
forced A.E.A. to perform fellatio on him at any time before November 2004.
Accordingly, the convictions on counts 4, 8, 12, and 16, for predatory criminal sexual
assault of a child, based on specific acts of fellatio allegedly committed prior to
November 2004, must be vacated. Likewise, the conviction on count 20, for criminal
sexual assault, based on a specific act of fellatio allegedly committed prior to November
2004, must be vacated.
¶ 72 Additionally, A.E.A. specifically testified that the defendant had been penetrating
her vaginally with his penis since she was 14 years old. Thus, the State failed to prove
beyond a reasonable doubt that the defendant penetrated A.E.A.’s vagina with his penis at
any time before October 7, 2005, when A.E.A. turned 14 years old. Thus, the convictions
on counts 1, 5, 9, and 13 of the information, for predatory sexual assault of a child, based
on specific acts of penile-vaginal penetration allegedly committed prior to October 2005,
must be vacated. Likewise, the defendant’s convictions on counts 17, 21, 25, 29, 33, 37,
41, 45, 49, 53, 57, and 61, for criminal sexual assault, based on specific acts of penile-
vaginal penetration allegedly committed prior to October 2005, must also be vacated.
¶ 73 In counts 161 through 208 of the information, the defendant was charged with
criminal sexual assault under section 12-13(a)(3) of the Code (720 ILCS 5/12-13(a)(3)
(West 2010)). Under that section, the State was required to prove that the defendant
committed an act of sexual penetration when A.E.A. was under 18 years of age and that
the defendant was a “family member.” 720 ILCS 5/12-13(a)(3) (West 2010). At the time
of the charged conduct, “family member” was statutorily defined as “a parent,
35
grandparent, or child, whether by whole, half-blood or adoption and includes a step-
grandparent, step-parent or step-child.” 720 ILCS 5/12-12(c) (West 2008).4 “Family
member” was further defined as “where the victim is a child under 18 years of age, an
accused who has resided in the household with such child continuously for at least one
year.” 720 ILCS 5/12-12(c) (West 2008). In the aforementioned counts, the defendant
was charged under the second definition of “family member.” At trial, the State conceded
that A.E.A. did not live with the defendant during the months of August 2007 and
September 2007. When A.E.A. moved out of the defendant’s home in August 2007,
A.E.A. and the defendant ceased to be family members under the second definition of
“family member.” 720 ILCS 5/12-12(c) (West 2008). A.E.A. returned to the defendant’s
home in October 2007, and A.E.A. and the defendant once again became “family
members” in October 2008. 720 ILCS 5/12-12(c) (West 2008). The State has conceded
that because A.E.A. and the defendant did not meet the statutory definition of “family
members” during the period from October 2007 through September 2008, the convictions
on counts 161 through 208 (a total of 48 counts of criminal sexual assault) must be
vacated. While we question the wisdom of the prosecutor in charging hundreds of counts
in this case, we find that the victim’s testimony and other evidence was sufficient to
4
720 ILCS 5/12-12(c) was repealed and replaced by 720 ILCS 5/11-0.1 (eff. July 1, 2011). Under
section 11-0.1, the first definition of “family member” includes a parent, grandparent, child, aunt, uncle,
great-aunt, or great-uncle, whether by whole blood, half-blood, or adoption, and includes a step-
grandparent, step-parent, or step-child. “Family member” also means, if the victim is a child under 18
years of age, an accused who has resided in the household with the child continuously for at least six
months.
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support the jury’s verdicts of guilty on all counts other than those we have specifically
enumerated here.
¶ 74 III. CONCLUSION
¶ 75 In this case, the jury found that the defendant was not guilty of the charges alleged
in counts 153 through 160 of the information. After reviewing the record, we have
determined that defendant’s convictions on counts 1, 4, 5, 8, 9, 12, 13, and 16, involving
predatory sexual assault of a child, must be and are hereby vacated. Likewise, the
defendant’s convictions on counts 17, 20, 21, 25, 29, 33, 37, 41, 45, 49, 53, 57, and 61,
and counts 161 through 208 of the information, finding the defendant guilty of criminal
sexual assault, are hereby vacated. The judgment of the circuit court is affirmed as to all
other convictions and sentences. Given that a large number of convictions have been
vacated, we believe it prudent to remand this case to the trial court to enter an amended
sentencing order.
¶ 76 Affirmed in part and vacated in part; cause remanded.
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