People v. Thurman , 2024 IL App (4th) 230391-U ( 2024 )

NOTICE 2024 IL App (4th) 230391-UThis Order was filed under FILED
Supreme Court Rule 23 and is NO. 4-23-0391 March 13, 2024
not precedent except in the Carla Bender
limited circumstances allowed 4th District Appellate
under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Ford County
NICHOLAS L. THURMAN, ) No. 22CF112
Defendant-Appellant. )
) Honorable
) Matthew J. Fitton,
) Judge Presiding.
JUSTICE ZENOFF delivered the judgment of the court.
Justices Harris and Steigmann concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed, concluding (1) defendant was not entitled to a new
trial based on prosecutorial misconduct, (2) defense counsel was not ineffective for
failing to file a motion in limine to exclude certain evidence, and (3) the trial court
did not abuse its discretion by imposing a 35-year sentence on defendant.
¶2 Defendant, Nicholas L. Thurman, appeals from his conviction of one count of
predatory criminal sexual assault of a child (720 ILCS 5/11-1.40(a)(1) (West 2022)) and his
consequent sentence of 35 years’ imprisonment. He contends first that defense counsel was
ineffective for failing to object to certain language in the State’s closing argument or that the
State’s use of that language was plain error. He further contends that counsel was ineffective for
failing to move to exclude a written statement from the victim. Finally, he argues his 35-year
sentence was excessive. We affirm defendant’s conviction and sentence.
¶3 I. BACKGROUND
¶4 The State charged defendant in a single-count information. As amended, it alleged
that, on June 15, 2022, defendant placed his penis in the mouth of Z.C., who was under the age of
13.
¶5 A. The Section 115-10 Motion
¶6 Prior to defendant’s jury trial, the State filed a motion under section 115-10 of the
Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-10 (West 2022)) seeking leave to
present (1) testimony by Donna B. that, in September 2022, Z.C. told her that defendant “forced
her to remove her clothes, threw her on a couch and forced himself on her” and (2) a recording of
a forensic interview conducted by Mary Tewell of the Champaign County Child Advocacy Center
(CAC), as well as Tewell’s testimony relating to that interview.
¶7 During the evidentiary hearing on the State’s motion, Donna B. testified that she
was Z.C.’s great aunt, foster parent, and prospective adoptive parent; Z.C. had been living with
her for three to four years. On September 17, 2022, Z.C. came to Donna in their home when no
one else was present. She said that she needed to talk with her about something. Initially, her
demeanor was ordinary, but, as she started speaking, she became “distraught.” She told Donna
that, during the past summer, defendant made her take off her clothes, then pushed her onto a
couch and “laid on top of her.” Z.C. did not make any further disclosure to Donna. Donna contacted
law enforcement.
¶8 Mary Tewell testified that she had been a forensic interviewer at the CAC for more
than five years. She interviewed Z.C. on September 23, 2022; the interview was recorded. The
DVD of the recording was complete and accurate. The recording showed Z.C. handing Tewell
something that looked like a letter. Tewell identified a State exhibit as a “note,” which Z.C. said
she had written and had given to Tewell at the interview.
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¶9 Defense counsel argued that Z.C.’s statement to Donna B. and the interview with
Tewell were insufficiently reliable to be admitted under section 115-10. Counsel did not address
the admission of the letter. The trial court ruled that the testimony of Donna and Tewell and the
recording of the interview were admissible.
¶ 10 B. The Evidence at Trial
¶ 11 Z.C. testified she was 11 years old and in sixth grade in the Fisher (Illinois) School
District. She lived with Cheri G. (her grandmother), Debbie R. (her aunt), her four siblings, and
Donna B. Her only older sibling was her sister, who was 13 years old.
¶ 12 Defendant was a friend of Cheri G.’s. One day during the previous summer, Cheri
told Z.C. that defendant was going to take her out to eat. Cheri had called Donna B. at home, but
Z.C. answered the phone. Z.C. went to the house of Cheri’s friend Anna in Fisher, taking nothing
with her except her phone. Defendant was at Anna’s house when Z.C. arrived. Z.C. got in
defendant’s car. He asked her where she wanted to eat, and she said, “McDonald’s.” They were
near the Rantoul, Illinois, McDonald’s, but defendant drove them to the McDonald’s in Gibson
City, Illinois. Z.C. asked for her usual meal, and defendant ordered it, but no food for himself, at
the drive-through. They drove to where defendant lived, which was a two-car garage next to a
trailer. They entered the garage through a regular door. The garage was set up with a kitchen area,
a living area, and an area with boxes. The living area had a television and a couch that Z.C. thought
would seat four, a nightstand next to the couch, and a chair.
¶ 13 Defendant watched television while Z.C. ate her meal on the chair. By this time, it
was dark outside; lights were on inside the garage. Z.C. expected defendant to take her home. She
went to the couch to watch television, seating herself on the side of the couch opposite defendant.
She remained there, playing with her phone and watching television, for an interval she could not
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estimate. Defendant moved closer to her so that his leg was touching hers. She said nothing to him
and continued to watch television.
¶ 14 After a while, defendant told Z.C. to lie down on the couch. She said, “No.” He
pushed her down and told her to take off her clothing. She refused but was “[s]cared.” He
undressed her; she tried to resist by sitting. Defendant took his clothing off. He took away her cell
phone when she threatened to call “the cops” if he did not “get off” her. He put the phone on the
nightstand. Z.C. always wore glasses, but defendant took them from her when he took her phone.
¶ 15 Defendant lay on Z.C. face-to-face with his legs over her arms, immobilizing her.
His hands were behind her head. She was thinking, “I want to go home,” and she was feeling
“[s]cared.” He “scooted up” so he was squatting over her, and he put his penis in her mouth. Asked
what she was thinking then, Z.C. said, “I was scared and I wanted to go home.” Something came
out of defendant’s penis; Z.C. did not know what it was. Defendant took his penis out of her mouth,
and she spat to clear her mouth.
¶ 16 Defendant told Z.C. she could get dressed, which she did. He did not return her
phone and did not take her home. Asked how that made her feel, Z.C. said, “Scared.” Z.C. spent
the night on the chair while defendant slept on the couch. She got her phone but, “[b]ecause [she]
was scared,” did not call anyone. Eventually, defendant drove her home. During the drive, he told
her not to tell anyone what had happened. At first, she did not tell anyone what had happened, but,
after a while, she spoke to Donna B. Asked why she did not say anything earlier, she responded,
“I was scared,” but she also said that she did not know why she had delayed her disclosure.
¶ 17 Z.C. recalled that Donna B. and Cheri G. were present when she wrote the note she
took with her to the interview. However, she never showed it to anyone but the interviewer. Z.C.
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identified one of the State’s exhibits as her note. Asked how she could recognize it, she responded,
“I have terrible handwriting and I can’t spell.”
¶ 18 On cross-examination, Z.C. testified that she was unsure of how long she had
known defendant and could not give an estimate. She knew she had met him through Cheri G. at
someone else’s home. He had never taken her out to eat before.
¶ 19 Z.C. said that, although the lights were on when defendant was undressed, she did
not notice “any unusual markings or scars on his body.” Asked to estimate how long the “sexual
part” or “physical contact” lasted, she stated it lasted until morning.
¶ 20 Z.C. spoke to Donna B. about the incident because she could not “keep secrets and
*** couldn’t handle it.” On the same day she told Donna about defendant’s actions, she also told
Cheri G. and “[h]er friends” about it. She was adamant that, although she wrote the note when she
learned that she was going to the CAC to be interviewed about her disclosure, she had written the
note on her own initiative and had not shown it to anyone but the interviewer.
¶ 21 On redirect examination, Z.C. said that defendant had not remained lying on top of
her all night, but she had no estimate of how long the contact lasted. When defendant was on top
of her, she agreed she was not looking at him. Asked what she was thinking then, Z.C. said, “I
want to go home.” Despite her fear, she did think about trying to find identifying marks on
defendant’s body. She believed that, even without her glasses, she could have seen details on
defendant’s body.
¶ 22 Officer Austin Rosenbaum, a patrolman and investigator with the Gibson City
Police Department, testified that he had received a report relating to Z.C.’s disclosure. He
determined that defendant was 47 years old and lived in Gibson City. He went to defendant’s
address to investigate. Two structures were present on the lot: a garage and a “modular home.”
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The garage had two overhead doors and one walk-in door. The windows in the garage doors were
covered with “various items like flags.” Although Rosenbaum had viewed the garage interior only
from the doorway, his description of the interior was essentially consistent with Z.C.’s. The
“modular home” was “jacked up on blocks and other things.” Rosenbaum said that this structure,
unlike the garage, did not have an electrical connection.
¶ 23 Cheri G. testified that she could pinpoint the date Z.C. went to defendant’s home
because she remembered it coincided with the June 18, 2022, birthday of Mia, her oldest
granddaughter. She was certain about the tie to Mia’s birthday because defendant had called her
on June 18 to ask if he “could take Mia out to eat and get her something for her birthday.” After
Mia decided she did not want to go, defendant asked Cheri if he could take Z.C. instead “because
he missed her birthday” on May 28. Cheri was at Anna’s house when defendant left with Z.C. and
was again at Anna’s house when he returned the next day. When defendant left with Z.C., a “bunch
of kids” were present at Anna’s home, but Donna B. was not there.
¶ 24 Donna B. testified after Cheri G. Her testimony was consistent with her testimony
at the hearing on the State’s section 115-10 motion.
¶ 25 On cross-examination, Donna B. stated that Z.C. had seemed angrier than usual
after the incident and before the disclosure. Her anger manifested itself as unusual quick-
temperedness. Donna asked Z.C. what was going on, but Z.C. said she did not know. Z.C. seemed
calmer after the disclosure.
¶ 26 Tewell testified to introduce and authenticate the recording of her interview of Z.C.
at the CAC. The trial court admitted the recording over defense counsel’s continuing objection,
and the State played the recording for the jury. By agreement of the parties, an identifiable portion
of the recording was muted for the jury.
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¶ 27 In the recording, Z.C. entered the interview room and, as she sat, took a folded piece
of paper from a pocket and held it between her hands. Tewell and Z.C. had an introductory
conversation. Tewell then asked Z.C. if she knew why she was at the interview. Z.C. said she did
not. Tewell then questioned her about whether she had recently spoken to anyone about something
that had happened. Z.C. said, “Yes,” and immediately produced the folded piece of paper (which
was now pressed between her legs) and handed it to Tewell. Tewell asked whether it would be
“okay” if she read the note out loud; Z.C. said, “No.” Z.C. then very softly commented that she
had to write the note more than once. Tewell, who was off camera, evidently read the note. She
then told Z.C. that she wanted to ask questions about the note’s contents. Z.C.’s answers were
consistent with her testimony but included less detail.
¶ 28 When the recording finished playing, the State asked Tewell whether its exhibit B
was the paper Z.C. handed to her during the interview. Tewell recognized it. The State moved for
the note’s admission, defense counsel “not[ed] the same objection,” and the trial court admitted
the note. The record does not indicate that the State published the note to the jury.
¶ 29 After the State told the trial court it had no further evidence at that time, defense
counsel moved for a directed verdict. The court denied that motion.
¶ 30 Defendant testified. He was 48 years old and had been convicted of two felonies:
manufacturing methamphetamine and armed robbery. He had known Cheri G. for 20 years and
had known Z.C. since 2020, which was when he was released from prison. The last time he had
seen Z.C. before June 18, 2022, was April 18, 2022. In June 2022, he was living in Gibson City.
His home was a garage on Bell Street in Gibson City, in which he was living while working on a
mobile home he had moved to the site. The garage was “livable,” but the running water was in the
mobile home.
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¶ 31 Defendant said he had occasionally paid Z.C.’s older sister to help him with cleanup
in the mobile home. On the day of the older sister’s birthday, he was at Anna’s house with her and
Cheri G. He told the older sister that he would take her to McDonald’s and pay her to do painting
in the mobile home. She declined. Cheri told him that Z.C. would like to come clean and paint and
then called Z.C. Z.C. walked to Anna’s house and got in defendant’s vehicle. He commented: “I
can’t recall if Anna was outside or not, but [Cheri] looked at us. I always thought this was odd and
said, ‘You two go have fun,’ and chuckled.” He said it was Cheri’s idea “for [Z.C.] to come.”
¶ 32 Defendant took Z.C. to the drive-through at the Gibson City McDonald’s, and they
went back to the garage. It was dusk when they left Anna’s, and it was almost dark when they got
to McDonald’s. Defendant pulled his car into the garage. He and Z.C. talked for a while—she was
also using her phone. He suggested that she should eat her food, and then he went to watch
television. Z.C. wanted to start painting in the mobile home, which, according to defendant “most
definitely had electricity ran [sic] to it.” However, after she finished eating, she sat in the chair
near the television and started watching. He told her she could start working whenever she was
ready, but she fell asleep in her chair. She spent the rest of the night there. Defendant said that he
had talked with Z.C. about the possibility she could stay the night “if it got late.” He said Cheri G.
and Donna B. were “fine with” this plan. He called Cheri to tell her that Z.C. would be spending
the night.
¶ 33 According to defendant, Z.C. remained sleeping until the next morning. He took
her home when she was ready. Z.C. commented about falling asleep. Defendant said her falling
asleep “was okay” and that he “could *** still take her to Dollar General and she could have a few
things.” He was planning to give her money because he “thought it was a good gesture with her
wanting to make some money.”
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¶ 34 Defense counsel asked defendant whether anyone had ever made an accusation
against him similar to Z.C.’s. Defendant responded: “No, sir. Kids love me. Call me Uncle Nick.”
¶ 35 Defendant denied engaging in any sexual activity with Z.C., taking her clothing off,
or taking his clothing off.
¶ 36 After an extended sidebar, the State told defendant and the trial court that it had
determined defendant’s assertion that he had not been the object of accusations similar to Z.C.’s
had opened the door to its impeaching defendant with evidence of a charge of attempted predatory
criminal sexual assault against him, which was at the preliminary hearing stage. However, the
State had made the “strategic decision” to “forego [sic] pursuing that line of questioning.” The
State limited its cross-examination of defendant to a few questions.
¶ 37 C. The Closing Arguments
¶ 38 The State’s argument began with a largely straightforward summary of the
evidence. When it mentioned Z.C.’s note or letter, it stated: “That letter is People’s Exhibit B. You
guys will have an opportunity to read that letter. [Z.C.’s] letter, her words, her writing about that
terrible event.”
¶ 39 The argument began to focus on Z.C.’s initial fear, contrasted with her fearlessness
in the courtroom:
“Yesterday ***, [Z.C.] in this room in front of you; in front of me; and most
importantly, in front of the defendant, Mr. Thurman, told him she was no longer
scared of him. He would no longer have power over her. [Z.C.] looked right at
[defendant], pointed at him, and said that is the man that took away my innocence,
my childhood.”
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¶ 40 The State, using variations on the phrase, “ ‘I am scared. I just want to go home,’ ”
as a refrain, further elaborated on the theme of Z.C.’s initial fear and subsequent bravery before
suggesting that the jury should emulate Z.C.’s courage:
“She was pinned down. She is unable to move under his body weight. In her mind,
she is scared. She said, ‘I just want to go home.’
After laying on top of her for a while, he shifted his body. He was more
sitting on her, squatting on her. ‘I am scared. I just want to go home.’ Her arms are
still pinned at her sides. She can’t fight him. She can’t overcome him. She is
thinking, ‘I am scared. I just want to go home.’ How he reached around the back of
her head with his hands and pulled her to him. And she is thinking, ‘I am scared, I
just want to go home.’
And then how he put his penis in her mouth. ‘I am scared. I just want to go
home.’ It didn’t end until [defendant] finished. [Z.C.] sat up here, Ladies and
Gentlemen. And she didn’t have the word, but she described to you that [defendant]
ejaculated in her mouth. ‘I am scared, I just want to go home.’ It didn’t end until
something came out of his penis. She didn’t have the word for it. Didn’t know what
was going on. But she knows finally he got off of her and told her to get dressed.
[Z.C.] is not scared at all anymore, Ladies and Gentlemen. [Z.C.] showed
us all how brave an 11-year-old can be when having to face a terrible situation
which no child should ever have to face.
And now it is up to you, Ladies and Gentlemen. It is up to you to be brave.
It is up to you to do the right thing.”
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The State then reviewed the elements of the offense. It closed by returning to the theme of Z.C.’s
courage and the need for the jury to emulate that courage: “Ladies and Gentlemen, [Z.C.] was
brave yesterday, braver than any child should ever need to be. And, again, it is your turn to show
bravery and return a guilty verdict in this matter.” Defense counsel did not object to any portion
of the State’s argument.
¶ 41 Defense counsel commented on the note, implying that its existence cast doubt on
Z.C.’s testimony:
“But *** ask yourself, you know, what transpired to make the need for the written
statement that, again, has not been prepared in June like a diary entry, so to speak,
shortly after this happens and apparently was not in existence when [Z.C.] spoke to
her aunt. But then when she appeared approximately a week later at CAC, then she
has this written statement. And, again, I question again the timing of all of that and
how that fits into this case from an incident, as I said, allegedly occurs in June until
the interview takes place in September.”
¶ 42 In its rebuttal, the State compared Z.C.’s credibility with defendant’s, pointing out,
for instance, that defendant’s claim that he was planning to have Z.C. clean or paint for him after
dark was implausible, especially given that it was summer and that Rosenbaum testified the trailer
did not have electricity.
¶ 43 Approximately 10 minutes into its deliberations, the jury requested to see the note
Z.C. gave to Tewell. Defense counsel stated he had no objection, and the trial court sent the exhibit
to the jury. In his appeal, defendant argues that the note emphasizes Z.C.’s childish qualities, and
we transcribe it as closely as possible:
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“Nick said we wear going out to Eat. But he liad to me and starsted to take.
My clothes off then. He took his clothes off to and then He. Put his Dick in [illegible
due to a strikethrough] mouth and i Said if You Don’t get off I was calling
[strikethrough] 911 But he took my Phone and [strikethrough] said Good Luck and
It was over the Summer. When we where camping in are Back Yeard. That is Whir
he trick. My grandmama She DiD know lather tell i told her.”
¶ 44 The jury found defendant guilty of the sole count charged.
¶ 45 D. The Posttrial Motion, Sentencing, and the Postsentencing Motion
¶ 46 Defense counsel moved for a new trial alleging, inter alia, that the trial court “erred
in granting the State’s [section] 115-10 motion over Defendant’s objection” and “erred when it
allowed the testimony of Donna B[.] and Mary Tewell over objection of the Defendant.” The
motion did not address the admission of Z.C.’s note or any aspect of the State’s closing argument.
The court denied the motion.
¶ 47 At sentencing, the trial court noted that predatory criminal sexual assault of a child
is a Class X felony with a sentencing range of 6 to 60 years’ imprisonment, to be served at 85%.
Neither party had any correction to the presentencing investigation report.
¶ 48 Donna B. was sworn in as a witness and read a victim impact statement. She stated:
“Normal smells and places now unnerve [Z.C.] The smell of gasoline takes her back to the garage.
McDonald’s is no longer one of her favorite places. She’s been called a liar. She’s been threatened
because she told the truth about what [defendant] did to her.”
¶ 49 Defense counsel did not cross-examine Donna B. He presented no evidence in
mitigation. Defendant declined to make a statement in allocution.
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¶ 50 The State asked for a sentence of 48 years’ imprisonment and 3 years’ mandatory
supervised release (MSR).
¶ 51 The trial court noted that it was considering all statutory factors in aggravation and
mitigation. It agreed with the State that it could not consider factors inherent in the offense. It noted
that it considered deterrence of others to be a factor it took “seriously,” and it discussed at some
length the psychological harms of child sexual abuse.
¶ 52 The trial court found it “extremely troubling” that defendant was a family friend
but conceded it would not necessarily have been “particularly more comforting” had he not known
Z.C. It deemed that defendant had played on Z.C.’s innocence by offering her a chance to make
money. It also considered defendant’s criminal record, of which it said it had “seen worse,” and
that he was on MSR when he committed the offense. Thus, it “believe[d] that” a sentence in the
range of “6 to 12 years would be inappropriate.”
¶ 53 The trial court sentenced defendant to 35 years’ imprisonment. It did not specify
the term of MSR. The sentencing order, in an apparent error, states that defendant’s term of
imprisonment is 35 years and 3 months and does not state a term of MSR.
¶ 54 Defense counsel filed a motion for reconsideration of the sentence, asserting that it
was excessive in light of the evidence and failed to comply with article I, section 11 of the Illinois
Constitution, which provides, “All penalties shall be determined both according to the seriousness
of the offense and with the objective of restoring the offender to useful citizenship.” (Ill. Const.
1970, art. I, § 11). The trial court denied the motion, stating that the sentence was “appropriate.”
¶ 55 This appeal followed.
¶ 56 II. ANALYSIS
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¶ 57 On appeal, defendant raises three claims. First, the State committed prosecutorial
misconduct when it urged the jury to be brave like Z.C. and used variations of “ ‘I am scared. I
just want to go home,’ ” as a refrain in closing argument. Second, defense counsel was ineffective
for failing to file a motion in limine to bar the admission of Z.C.’s note. Third, the trial court abused
its discretion when it sentenced defendant to 35 years’ imprisonment because (1) it did not
adequately address the seriousness of the offense and (2) defendant’s sentence amounted to a life
sentence and therefore failed to comply with the Illinois Constitution’s requirement that sentences
be determined with the objective of rehabilitating the offender.
¶ 58 A. Prosecutorial Misconduct
¶ 59 Defendant acknowledges he forfeited his arguments about prosecutorial
misconduct by failing to raise the issue below. See People v. Sebby, 2017 IL 119445, ¶ 48 (“To
preserve a purported error for consideration by a reviewing court, a defendant must object to the
error at trial and raise the error in a posttrial motion.”). Nevertheless, defendant maintains he is
entitled to a new trial pursuant to both prongs of the plain error doctrine and because his counsel
was ineffective for failing to object to the prosecutor’s closing argument. Our review of the record
reveals that although the State’s closing argument contained some emotional rhetoric, it did not
constitute prosecutorial misconduct. Consequently, defendant has not shown a “clear or obvious
error” necessary to support a plain error claim (People v. Moon, 2022 IL 125959, ¶ 20), and
defendant’s ineffective assistance claim fails.
¶ 60 “Prosecutors are afforded wide latitude in closing argument.” People v. Wheeler,
226 Ill. 2d 92, 123 (2007). Nevertheless, there are limits to proper prosecutorial argument:
“Closing argument must serve a purpose beyond inflaming the emotions of
the jury. [Citations.] A prosecutor cannot use closing argument simply to ‘inflame
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the passions or develop the prejudices of the jury without throwing any light upon
the issues.’ [Citation.] Moreover, it is improper for a prosecutor to utilize closing
argument to forge an ‘us-versus-them’ mentality that is inconsistent with the
criminal trial principle that a jury fulfills a nonpartisan role, under the presumption
that a defendant is innocent until proven guilty. [Citation.]” Id. at 128-29.
“Whether the remarks *** constitute error depends, in each case, on the nature and extent of the
statements and whether they are probative of [the] defendant’s guilt.” People v. Blue, 189 Ill. 2d
99, 132 (2000). “[C]losing arguments must be viewed in their entirety, and the challenged remarks
must be viewed in context.” Wheeler, 226 Ill. 2d at 122.
¶ 61 Under these principles, “arguments urging a fearless administration of justice or
commenting unfavorably on the evils of crime do not constitute error.” Blue, 189 Ill. 2d at 128-29.
On the other hand, arguments suggesting that juries should render their verdicts on behalf of
victims are improper. See id. at 132 (holding it was improper to argue a “verdict should be a vehicle
to vindicate the [victim’s] family”).
¶ 62 If a defendant preserves the issue for review, a trial court’s determination of the
propriety of the prosecution’s statements in closing argument should not “be disturbed absent a
clear abuse of discretion.” Id. at 128. Here, however, defendant failed to object to the prosecutor’s
remarks, so he invokes the plain error doctrine. To obtain relief pursuant to the plain error doctrine,
a defendant must show that “a clear or obvious error occurred” and that either (1) “the evidence is
so closely balanced that the error alone threatened to tip the scales of justice against the defendant”
or (2) “the error is so serious that it affected the fairness of the defendant’s trial and challenged the
integrity of the judicial process.” Moon, 2022 IL 125959, ¶ 20. “The first analytical step under the
plain error rule is to determine whether there was a clear or obvious error.” Id. ¶ 22. An error in
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closing argument is clear or obvious where the comment is both “improper and substantially
prejudicial.” People v. Williams, 2022 IL 126918, ¶ 49.
¶ 63 Defendant first focuses on the prosecutor’s repeated references to Z.C. being scared
and wanting to go home when defendant sexually assaulted her. Case law does not require the
State to avoid arguments that evoke emotion or tend to elicit sympathy for the victim. Rather, it
requires that arguments “serve a purpose beyond inflaming the emotions of the jury.” (Emphasis
added.) Wheeler, 226 Ill. 2d at 129. Further, “colorful” arguments are not inherently objectionable.
People v. Jackson, 2018 IL App (1st) 150487, ¶ 42. Here, the prosecutor accurately recited Z.C.’s
testimony about being scared and wanting to go home. Thus, the prosecutor’s remarks were
directly tied to the evidence presented at trial. Moreover, the remarks were relevant to a disputed
issue, as Z.C.’s fear might help explain why she delayed disclosing the sexual assault. See
Williams, 2022 IL 126918, ¶ 62 (noting that fear may lead a young victim of sexual assault to delay
disclosure). Indeed, during closing arguments, defense counsel cited Z.C.’s delayed disclosure as
a reason not to believe her allegations.
¶ 64 Defendant, quoting People v. Wood, 341 Ill. App. 3d 599, 615 (2003), accuses the
State of “ ‘filching trial oratory techniques from television melodramas.’ ” But trial lawyers may
borrow their rhetorical techniques from whatever source seems suitable to them, be it Cicero or
Perry Mason. What they clearly may not do is make appeals to emotion divorced from any
connection to the evidence in the case. Here, the prosecutor’s refrain-like repetition of variants on
the phrase, “ ‘I am scared. I just want to go home,’ ” was likely designed for emotional effect.
Nevertheless, as mentioned above, these words were borrowed directly from the evidence and
were relevant to a disputed issue. This distinguishes the matter from People v. Starks, 116 Ill. App.
3d 384, 389 (1983), a case defendant cites in which the prosecution crossed the line of permissible
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advocacy in multiple ways, including by eliciting and later emphasizing testimony that “cast no
light upon the guilt or innocence of the accused.”
¶ 65 Defendant also relies on People v. Littlejohn, 144 Ill. App. 3d 813, 828 (1986), a
case where the appellate court determined the prosecution committed misconduct that “tainted the
entire proceeding from beginning to end.” One example of misconduct was mentioning in closing
argument that the infant murder victim would never get to see her first Christmas or experience
other memorable life events. Id. at 827. The court explained that such comments were “designed
solely to arouse the sympathy and passions of the jurors,” as the only disputed issue at trial was
whether the defendant was legally insane when he admittedly killed his daughter. Id. Here, the
prosecutor’s remarks about Z.C. being scared and wanting to go home were nothing like the
gratuitous and blatantly prejudicial remarks in Littlejohn.
¶ 66 Defendant further argues it was misconduct for “the prosecutor [to] implicitly ask[ ]
the jury to put itself in Z.C.’s shoes [by] twice [telling] the jury that Z.C. had been ‘brave’ and it
was now ‘up to you to be brave.’ ” Quoting People v. Spreitzer, 123 Ill. 2d 1, 38 (1988), a case in
which the State asked the jury to imagine the dying moments of the defendant’s victims, defendant
argues that, because “the State is not free to ‘invite the jurors to enter into some sort of empathetic
identification with’ the victim,” the State’s encouragement to the jury to emulate Z.C.’s bravery
was misconduct. The State, citing People v. Terrell, 185 Ill. 2d 467, 512-13 (1998), in which the
State talked about the feelings of a 15-month-old girl in her last moments alive, suggests that
argument is improper only if it “explicitly ask[s] the jury to place itself in the shoes of the victim.”
¶ 67 We conclude that the prosecutor’s comments about Z.C.’s bravery were based on
the evidence presented and did not exceed the boundaries of permissible argument. The prosecutor
was not asking the jurors to put themselves in Z.C.’s shoes. Instead, the prosecutor suggested the
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jury should emulate Z.C. or should be as brave as Z.C. This argument, at its core, was one “urging
a fearless administration of justice,” which is proper. Blue, 189 Ill. 2d at 128-29.
¶ 68 Defendant has not demonstrated that a clear or obvious error occurred based on
prosecutorial misconduct. Accordingly, he is not entitled to a new trial pursuant to the plain error
doctrine. For the same reasons, we must reject defendant’s related claim of ineffective assistance
of counsel. See People v. Jackson, 2020 IL 124112, ¶ 91 (explaining that a defendant could not
show “prejudice” for purposes of an ineffective assistance claim where the court had already
determined the subject comments did not constitute prosecutorial misconduct under a plain error
analysis).
¶ 69 B. Z.C.’s Note
¶ 70 Defendant next contends his counsel was ineffective for failing to file a motion
in limine to exclude the note Z.C. gave Tewell at the CAC interview. Defendant emphasizes that
Illinois Rule of Evidence 403 (eff. Jan. 1, 2011) authorizes a court to exclude relevant evidence
“if its probative value is substantially outweighed by the danger of unfair prejudice ***, or by
considerations of *** needless presentation of cumulative evidence.” Defendant proposes that his
counsel should have moved to exclude the note pursuant to Rule 403 because (1) the contents of
the note were cumulative of both Z.C.’s testimony and her recorded interview and (2) the note was
“written in a child’s handwriting, rife with a typical child’s spelling mistakes.”
¶ 71 “Both the United States and Illinois constitutions guarantee criminal defendants the
right to the effective assistance of counsel.” People v. Hale, 2013 IL 113140, ¶ 15. To establish
ineffective assistance of counsel, a defendant must show both (1) his counsel’s representation fell
below an objective standard of reasonableness and (2) the deficient performance of counsel
prejudiced defendant. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); see People v.
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Albanese, 104 Ill. 2d 504, 526-27 (1984) (adopting the Strickland standard). When an ineffective-
assistance claim is raised for the first time on appeal, “our consideration of the issue is equivalent
to a de novo review.” People v. Jefferson, 2021 IL App (2d) 190179, ¶ 26.
¶ 72 The Strickland standard for deficient performance requires that “[j]udicial scrutiny
of counsel’s performance must be highly deferential.” Strickland, 466 U.S. at 689.
“A fair assessment of attorney performance requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time. Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the circumstances, the challenged
action ‘might be considered sound trial strategy.’ ” Id.¶ 73 Under the second prong of Strickland, an “error by counsel, even if professionally
unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had
no effect on the judgment.” Id. at 691. This is because the “purpose of the Sixth Amendment [(U.S.
Const., amend. VI)] guarantee of counsel is to ensure that a defendant has the assistance necessary
to justify reliance on the outcome of the proceeding.” Id. at 691-92. Strickland therefore requires
a defendant to show a reasonable probability that counsel’s errors affected the outcome of the
proceeding. See id. at 694 (“The 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. A
reasonable probability is a probability sufficient to undermine confidence in the outcome.”).
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¶ 74 We hold that defendant has failed to meet either of Strickland’s requirements.
Defense counsel did not perform deficiently by failing to file a motion in limine to exclude Z.C.’s
note. This court has explained that section 115-10 of the Code is an exception to the general rule
prohibiting the use of prior consistent statements as substantive evidence. People v. Applewhite,
2016 IL App (4th) 140558, ¶ 63. Nevertheless, defendant proposes there is a difference between
multiple witnesses testifying to the same victim’s statements (something that case law interpreting
section 115-10 allows) and using “a third form of the same testimony from the same witness” (i.e.,
the victim’s testimony, her statements in a recorded interview, and her statements in a written
note). Defendant seems to be drawing a distinction without a difference. At any rate, we cannot
say that defense counsel acted “outside the wide range of professionally competent assistance”
(Strickland, 466 U.S. at 690) by failing to raise this argument to the trial court.
¶ 75 Defendant also has not satisfied the “prejudice” prong of Strickland. Even if
defense counsel had raised this argument below and the trial court had accepted it, we discern no
reasonable probability that the exclusion of the note could have changed the outcome of the
proceeding. The jury was already able to infer the content of the note from the video of the
interview; Tewell’s questions directly implied its content. Thus, admitting the note itself did not
result in new information being submitted to the jury. Defendant argues that the note was unduly
prejudicial because the childish handwriting and spelling emphasized Z.C.’s childishness. But the
jury was aware of Z.C.’s age and observed her demeanor both on the witness stand and at the CAC
interview. The impressions the jury formed of her maturity and the truth of her accusations against
defendant would have been unlikely to change simply because the note showed that she struggled
with spelling and handwriting. This is especially so given that Z.C. matter-of-factly testified, “I
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have terrible handwriting and I can’t spell.” Defendant’s ineffective assistance claim therefore
fails.
¶ 76 C. Excessive Sentence Claim
¶ 77 Defendant finally asserts his sentence was excessive and inconsistent with the
constitutional objective of rehabilitating offenders. He argues his 35-year sentence was a “de facto
life sentence” imposed “without any finding that [he] was beyond rehabilitation” and without
regard for his rehabilitative potential. According to defendant, this violated Illinois’s constitutional
directive that “[a]ll penalties shall be determined both according to the seriousness of the offense
and with the objective of restoring the offender to useful citizenship” (Ill. Const. 1970, art. I, § 11).
¶ 78 As a rule, “absent an abuse of discretion by the trial court, the sentence may not be
altered on review.” People v. Stacey, 193 Ill. 2d 203, 209-10 (2000). A “sentence within statutory
limits will be deemed excessive and the result of an abuse of discretion by the trial court where the
sentence is greatly at variance with the spirit and purpose of the law, or manifestly disproportionate
to the nature of the offense.” Id. at 210. “[T]he trial court’s sentencing decision is entitled to great
deference” because that court, unlike a reviewing court, has “the opportunity to weigh such factors
as the defendant’s credibility, demeanor, general moral character, mentality, social environment,
habits, and age.” Id. at 209. “Consequently, the reviewing court must not substitute its judgment
for that of the trial court merely because it would have weighed these factors differently.” Id.¶ 79 The Unified Code of Corrections (730 ILCS 5/5-5-3.1, 5-5-3.2 (West 2022)) sets
forth mitigating and aggravating factors that the trial court must consider when determining an
appropriate sentence. People v. Brunner, 2012 IL App (4th) 100708, ¶¶ 43-45. A reviewing court
will presume that the trial court considered all relevant factors and any mitigating evidence
presented. People v. Jackson, 2014 IL App (1st) 123258, ¶ 48.
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¶ 80 Defendant contends that the trial court failed to give reasonable weight to his
relatively advanced age and thus failed to consider Illinois’s constitutional objective of “restoring
the offender to useful citizenship.” Ill. Const. 1970, art. I, § 11. Based on the Illinois Department
of Corrections’ projected release date for him, he calculates he will be 77 years old when he is
released. He states that this is older than a general-population prisoner’s life expectancy of 64, as
discussed in People v. Sanders, 2016 IL App (1st) 121732-B, ¶ 26. He therefore argues that his
sentence amounts to a “de facto life sentence” and that a life sentence is disproportionate to the
seriousness of the offense. He suggests “it was possible for the trial court to fashion a sentence for
[him] that was neither a de facto life sentence, nor the 6- or 12-year sentences that the court
characterized as ‘inappropriate.’ ” He suggests an 18-year sentence is appropriate because it falls
into that range.
¶ 81 Defendant’s argument in support of his excessive sentencing claim is flawed. A
trial court has discretion to determine which of the four purposes of sentencing—retribution,
deterrence, incapacitation, and rehabilitation—predominate in a given case. People v. Page, 2022
IL App (4th) 210374, ¶ 52. Thus, there is no requirement for a court to elevate the goal of
rehabilitation over other sentencing goals. Additionally, “de facto life sentence” is a term of art
relevant to eighth amendment (U.S. Const., amend. VIII) jurisprudence relating to juvenile
offenders. See People v. Wilson, 2023 IL 127666, ¶ 31 (noting that a de facto life sentence is 40
years or more in prison). Where the circumstances of a case justify a lengthy prison sentence, there
is no requirement for a court to sentence an older offender to a lesser term in prison than a younger
offender would deserve. Defendant seems to be arguing that unless an offense merits a life
sentence, a court must fashion a prison sentence that is within the defendant’s life expectancy.
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Defendant fails to cite any cases supporting this proposition. A person’s advanced age at the time
of committing a criminal offense is not inherently a mitigating sentencing factor.
¶ 82 Defendant cites federal authority suggesting that trial courts may consider that
public policy concerns weigh against sentences that will add to the population of elderly prisoners.
See United States v. Craig, 703 F.3d 1001, 1002-04 (7th Cir. 2012) (Posner, J., concurring). We
do not doubt that the cost of incarcerating prisoners increases rapidly as they enter their last years.
However, no authority exists holding that a court must weigh this effect, let alone prioritize this
effect over other relevant sentencing factors, when imposing a sentence.
¶ 83 Defendant faced a sentence of between 6 and 60 years in prison. Given his
background and the circumstances of the offense, we cannot conclude that a 35-year sentence was
either “greatly at variance with the spirit and purpose of the law” or “manifestly disproportionate
to the nature of the offense.” Stacey, 193 Ill. 2d at 210. Accordingly, we hold that the sentence
does not constitute an abuse of discretion.
¶ 84 III. CONCLUSION
¶ 85 For the reasons stated, we affirm defendant’s conviction and sentence.
¶ 86 Affirmed.
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