People v. Hemphill , 2024 IL App (2d) 230050-U ( 2024 )

2024 IL App (2d) 230050-UNo. 2-23-0050
Order filed May 10, 2024
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kendall County.
)
Plaintiff-Appellee, )
)
v. ) No. 12-CF-299
)
SEAN HEMPHILL, ) Honorable
) John F. McAdams,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE KENNEDY delivered the judgment of the court.
Presiding Justice McLaren and Justice Jorgensen concurred in the judgment.
ORDER
¶1 Held: The trial court did not err in summarily dismissing defendant’s postconviction
petition seeking relief from his convictions of sex offenses against his daughter.
First, the actual innocence claim was frivolous because it was based on evidence
that was (a) not newly discovered, (b) cumulative of evidence on the issue of the
victim’s credibility, and (c) not likely to change the result on retrial. Second, the
claim that the State withheld exculpatory evidence failed to show that the evidence
in question—relating to the victim’s credibility—was suppressed by the State or
would likely change the result on retrial. Finally, defendant’s claim that trial
counsel was ineffective for failing to present certain evidence at trial was frivolous
because the evidence was either inadmissible (e.g., defendant’s prior consistent
statements) or would not likely change the result on retrial (e.g., evidence relating
to the victim’s credibility).
2024 IL App (2d) 230050-U¶2 On October 10, 2012, defendant, Sean Hemphill, was indicted on four counts of aggravated
criminal sexual abuse (720 ILCS 5/11-1.60(b), (c)(1)(i) (West 2012)). The indictment alleged that,
on or about January 1, 2012, defendant committed an act of sexual conduct with his daughter,
A.P.H., who was under 18 years of age, in that he had A.P.H. touch his penis for the purpose of
his sexual gratification.
¶3 On March 19, 2014, following a jury trial, defendant was found guilty of all counts.
Defendant filed a motion for a judgment notwithstanding the verdict or a new trial. The trial court
granted defendant’s motion and ordered a new trial. Defendant then filed a motion to dismiss the
indictment based on double jeopardy, which the court denied. Defendant appealed, and we
affirmed. See People v. Hemphill, 2016 IL App (2d) 151196-U, ¶ 2 (Hemphill I).
¶4 On July 31, 2017, before the second trial began, the State charged defendant with an
additional four counts of aggravated criminal sexual abuse (for a total of eight counts) and six
counts of predatory criminal sexual assault of a child (720 ILCS 5/11-1.40(a)(1) (West 2012)).
¶5 On November 7, 2018, following a bench trial, the trial court found defendant guilty of all
charges. The trial court sentenced defendant to an aggregate term of 45 years in prison. Defendant
appealed, and we affirmed. See People v. Hemphill, 2021 IL (App) 2d 190473-U, ¶ 2 (Hemphill
II).
¶6 On October 24, 2022, defendant filed a petition under the Post-Conviction Hearing Act
(Act) (725 ILCS 5/122-1 et seq. (West 2020)), seeking relief from those convictions. The trial
court summarily dismissed the petition, and defendant now appeals. We affirm.
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2024 IL App (2d) 230050-U¶7 I. BACKGROUND 1
¶8 A. First Trial and Appeal
¶9 On March 6, 2013, before defendant’s first trial, the State gave notice under section 115-
10 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-10 (West 2012)) of its
intent to introduce out-of-court statements made by A.P.H. The trial court ruled that the State could
introduce certain statements that A.P.H. made to (1) her mother, Ryan Hemphill (Ryan), (2) an
interviewer during A.P.H.’s Victim Sensitive Interview (VSI) at the Children’s Advocacy Center,
and (3) personnel at Long Beach Elementary School.
¶ 10 Defendant’s first jury trial began on March 17, 2014. A.P.H. testified that she was born on
January 4, 2004, and was currently 10 years old. In 2012, she lived with both parents in a three-
bedroom house. She was afraid to sleep in her own bed because she once saw an ant crawling on
it. She slept instead with one of her parents, who slept in separate bedrooms. One day, she heard
from some other children that if a boy kissed a girl, the girl would get pregnant. That did not make
sense to A.P.H. because her parents frequently kissed, yet her mother did not become pregnant.
On January 5, 2012, she was going to sleep in defendant’s bed and asked him about what she had
heard. Defendant told her what it meant to be pregnant, and he talked about girls’ and boys’ “body
parts.”
¶ 11 The assistant state’s attorney asked A.P.H., “Did you ask him to do something?” A.P.H.
replied, “No.” She stated that defendant told her not to tell anyone, but she told Ryan and “Mr.
1
As noted, this is defendant’s third appeal related to this case. The facts as stated are derived
in relevant part primarily from Hemphill I and Hemphill II with additional facts added as needed
to address the issues presented in this case.
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2024 IL App (2d) 230050-ULipke.” When asked, “The thing that you told your mom and the other people, did that really
happen?”, A.P.H. replied in the affirmative. A.P.H. was asked if she wanted “to tell these people
what happened to you in bed with” defendant, and she stated, “He just told me what it meant.” The
assistant state’s attorney again asked, “Now, when he told you what it meant, did you ask him to
do anything else?” A.P.H. replied, “No.”
¶ 12 On cross-examination, defense counsel asked if there were times when A.P.H. heard her
parents argue or yell. A.P.H. replied, “Not yell, but they argued about a few things.” Counsel asked
A.P.H. what she did when her parents argued, and she replied, “I don’t really know. Probably
ignore it or go down there and like try to get them into a conversation.” A.P.H. was not worried
about her parents divorcing. She stated, “My mom always thought that she would never get a
divorce because she was happy with what she had.”
¶ 13 Next, three officers collectively testified that they were dispatched to A.P.H.’s home on the
evening of January 5, 2012. They observed A.P.H. alternating between excitement because she
had just had a birthday and being upset and crying. Ryan provided a written statement, and
defendant left the house voluntarily.
¶ 14 When the trial resumed the next day, defendant orally objected to A.P.H.’s out-of-court
statements being admitted into evidence. Defendant argued that A.P.H. did not testify as to any
criminal conduct by him, so the hearsay statements were inadmissible. The trial court denied the
motion.
¶ 15 Erin Buddy testified that, on January 30, 2012, she was substitute teaching at Long Beach
Elementary School, as she had been doing every Wednesday. On that day, she worked with three
second-grade students, including A.P.H., on literacy skills. A.P.H. looked unusually tired, and
Buddy asked if she was all right. A.P.H. said that she did not sleep well the previous night, and
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2024 IL App (2d) 230050-UBuddy asked if she was out doing something fun. A.P.H. replied that she was not sleeping well
because—as Buddy understood it—A.P.H.’s father was either asking her to come into his bed or
asking if he could join her in her bed. Buddy reported the conversation to the school social worker
and Assistant Principal Dawn Marmo. For the rest of the academic year, whenever Buddy asked
A.P.H. how she was doing, A.P.H. would say that she was fine.
¶ 16 Marmo testified as follows. On January 30, 2012, A.P.H. visited Marmo’s office and told
her that she was upset and sad because her parents were divorcing and she really wanted a brother
or sister. A.P.H. said that when she and Ryan were bathing together, she talked to Ryan about her
father. A.P.H. told Marmo that the divorce was her fault because she had asked defendant about
sex and about boys’ and girls’ “parts,” and that he had shown her “his parts.” Marmo asked the
principal, Mr. Lipke, to come into the room, and A.P.H. repeated the statement. Marmo contacted
the Department of Children and Family Services. Later that day, A.P.H. approached Marmo on
the playground during recess. A.P.H. asked if Marmo was married, had children, and knew what
it meant to be “hard.” Marmo responded in the affirmative, and A.P.H. said that defendant had
shown her what being “hard” meant. A.P.H. then said that there was “a lot more” but that she did
not want to talk about anything else. A.P.H. said Marmo could tell Mr. Lipke about their
conversation but not her mother.
¶ 17 Ryan testified that she married defendant in 2003 and that A.P.H. was their daughter. In
January 2012, she worked from home. The household’s atmosphere was “mostly pretty good,”
though “[f]rom time to time” she and defendant did not get along. Ryan loved defendant and
believed that he loved her.
¶ 18 A.P.H.’s room had a twin-size bed, and the master bedroom and guest room each had
queen-size beds. Ryan would get up around 4:30 or 5 a.m. to start work so that she could spend
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2024 IL App (2d) 230050-Umore time with her family later in the day. Ryan would sleep in the guest room three or four nights
per week because defendant was a light sleeper and Ryan’s alarm would wake him up. Ryan
snored, which also interfered with defendant’s sleep. A.P.H. did not like to sleep in her bed because
one night she saw an ant in her bed, and she was convinced that an ant would be in her bed every
time she slept there. A.P.H. began sleeping in whatever room Ryan was in. However, a few months
before January 2012, defendant said that A.P.H. should be able to choose wherever she slept, with
the thought that, eventually, she would choose her own bed.
¶ 19 On January 4, 2012, Ryan and A.P.H. planned to meet defendant for A.P.H.’s birthday
dinner. Ryan was helping A.P.H. wash her hair, and A.P.H. said she knew the difference between
girls’ and boys’ parts. Ryan replied that she knew that A.P.H. had seen her male baby cousin’s
diaper changes. A.P.H. then said that she had seen and touched defendant’s private parts. Ryan
asked if she had seen him after a shower or as he dressed. A.P.H. said no and that she had asked
defendant if she could see his private parts. He let her see them. A.P.H. said there was a part with
soft skin and hair on it, with two “balls” inside. A.P.H. asked what the balls were called, and Ryan
said, “[T]esticles.” A.P.H. replied, “[Y]eah.” During this time, A.P.H. seemed normal and happy.
A.P.H. said that there was another part that stuck out in the front, with a hole in it where the pee
came out. She asked if that was called the “penis,” and Ryan responded affirmatively. Ryan had
used those words with A.P.H. once or twice when talking about A.P.H.’s baby cousin. At this
point, Ryan was “alarmed because what [A.P.H.] had described to [her] was obviously an adult[’s]
genitals, not a child[’s].”
¶ 20 Ryan asked A.P.H. what defendant had shown her, and A.P.H. said that she and defendant
had played a game where they took the testicles’ skin and stretched it over the penis to cover it up.
A.P.H. would then “take it off and it would be a present or surprise.” Sometimes, they pretended
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2024 IL App (2d) 230050-U“it” was a piece of candy. A.P.H. described another game where they would “pretend that the penis
was a marker and that if you squeezed one of the balls, blue ink would come out. If you squeeze[d]
the other [ball], green ink would come out.”
¶ 21 A.P.H. noticed that Ryan had gone quiet, and A.P.H.’s face “dropped.” A.P.H. said that
Ryan must not tell defendant or anyone else what A.P.H. had said because, otherwise, defendant
could go to jail. Ryan said she would not make such a promise because “we don’t keep secrets in
our family.” Ryan asked where and when this had happened. A.P.H. said that she and defendant
played the game in the master bedroom before bed. A.P.H. could not provide a date, and when
Ryan asked if it happened before or after Christmas, A.P.H. said it occurred after Christmas. Ryan
said that she was glad A.P.H. had told her. They went out to dinner, but Ryan did not confront
defendant at that time because she did not want to ruin A.P.H.’s birthday and did not want to talk
to him in front of her. Ryan insisted that A.P.H. sleep with her that night.
¶ 22 The next evening, January 5, 2012, Ryan talked to defendant while A.P.H. was at her tae
kwon do class. Ryan repeated what A.P.H. had said, and defendant was very quiet. He asked what
she was talking about and why A.P.H. would say those types of things. They picked up A.P.H.,
and when they were pulling out of the parking lot, A.P.H. must have seen that defendant was upset.
She blurted out, “[S]ee, I told you if I told everything that dad could get in trouble.” Ryan asked
A.P.H. to repeat what A.P.H. had told her, and A.P.H. did so. Defendant asked why she was saying
this and who had done this. A.P.H. leaned forward and said, “[Y]ou and me.” They went to eat at
Wendy’s. A.P.H. said that she should not have told Ryan, because defendant was upset and he
could go to jail. She asked why Ryan could not keep a secret.
¶ 23 They returned home, and Ryan told defendant they should talk to A.P.H. one more time.
A.P.H. began to repeat the same things, and defendant told her to tell the truth. Defendant asked
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2024 IL App (2d) 230050-Uwhy she was saying such things, and she replied, “[B]ecause you did.” When defendant again
asked why she was saying such things, A.P.H. got a “crushed” look on her face. After these
disclosures, Ryan filed for divorce, and the divorce was now final.
¶ 24 Michelle Hawley testified that she was the mental health assistant director of the Kendall
County Health Department. As part of her job, she worked at the Children’s Advocacy Center,
interviewing children who were possible victims of physical or sexual abuse. She would meet with
the parent before the interview to obtain the parent’s consent and learn about the situation, and she
would also review police reports. On January 11, 2012, she conducted the VSI with A.P.H.; the
interview was video recorded. During the interview, Hawley had A.P.H. identify male and female
anatomy on charts; the charts were admitted into evidence.
¶ 25 The interview recording was played for the jury, which was also given transcripts. We
summarize the interview. A.P.H. reported that she told Ryan that she asked defendant what sex
was and if she could see what his private parts looked like. A.P.H. had thought sex was when a
couple kissed and laid in bed together. Defendant told her the “right thing”—that sex was when a
boy puts his penis in “her” private parts and then “yucky stuff comes out.” This conversation
occurred three days before A.P.H.’s birthday, when they were in his bed. Defendant let A.P.H. see
his private parts; defendant had his sleep shorts on and took his penis out through the hole in the
shorts. A.P.H. asked if she could touch it, and he said, “Yes.” This happened only once.
¶ 26 Hawley asked A.P.H. about the “game” that she told Ryan she had played with defendant.
At this point in the interview, A.P.H. said that she wished that she had never told her mother
“[b]ecause none of this would have ever happened. It could keep it the same.” She explained
further, “It would be the same. Nothing would have happened. My dad wouldn’t leave and my
mom wouldn’t call the cops.”
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2024 IL App (2d) 230050-U¶ 27 A.P.H. then explained the “game.” She said that, on the same night he showed her his penis,
she and defendant played a game twice about changing the color of “pencils.” A.P.H. thought up
the game because the penis was shaped like a “marker.” A.P.H. touched the side of the penis and
held it with her hand for one second each time. Defendant then said what “it [was],” which was “a
marker.” Then A.P.H. let it go, and they went to bed. The penis was soft, and nothing came out of
it. Defendant told A.P.H. not to tell Ryan because he could go to jail for it.
¶ 28 Previously, A.P.H. had not seen defendant’s penis. She often felt it on her leg while
sleeping with him; it would come out when defendant moved around. At these times, Ryan was
working or sleeping in the guest room. A.P.H. never saw defendant’s penis during those times
because the room was dark, and she would just move away. A.P.H. told defendant once about his
penis touching her leg, and he said that he was sorry. At times, A.P.H. wore only underwear to
bed. Sometimes, defendant accidentally touched her thighs or the top of her underwear, and then
he would move over. Defendant’s hand never went inside her underwear.
¶ 29 A.P.H. told Ryan about the game and told her not to tell defendant, but Ryan did anyway.
A.P.H. did not think that it was good that she told Ryan, because “[n]one of this would have
happened” otherwise; defendant “would still be here,” and “[n]o one would be mad.”
¶ 30 The State rested, and defendant moved for a directed verdict, primarily because A.P.H. did
not testify in court as to any wrongful or unlawful conduct by defendant. The trial court denied the
motion. On March 19, 2014, the jury found defendant guilty of all four counts of aggravated
criminal sexual abuse.
¶ 31 On April 17, 2014, defendant filed a motion for a judgment notwithstanding the verdict or
a new trial. Defendant argued, among other things, that the trial court erred in allowing into
evidence A.P.H.’s hearsay statements to Marmo, Ryan, and Hawley, because A.P.H. failed to
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2024 IL App (2d) 230050-Utestify at trial as to any wrongful or unlawful conduct by defendant. Defendant argued that the
court similarly erred in allowing into evidence the recording and transcript of A.P.H.’s interview
with Hawley.
¶ 32 On June 18, 2014, the trial court granted defendant’s request for a new trial. It stated that,
because A.P.H. did not testify that defendant engaged in any of the actions forming a basis for the
charges against him, the admission of hearsay evidence under section 115-10 of the Code was
error.
¶ 33 Defendant then filed a motion arguing that a second trial would violate his constitutional
right against double jeopardy. The court denied the motion on September 4, 2014. The case was
called for a retrial over one year later, on December 2, 2015. The same day, defendant filed a
motion to dismiss based on double jeopardy, reasserting his prior arguments. The trial court denied
the motion, and defendant appealed. We affirmed, holding that double jeopardy did not prohibit a
retrial here even if the evidence at the first trial was insufficient. See Hemphill, 2016 IL App (2d)
151196-U, ¶¶ 36-37.
¶ 34 B. Second Trial and Appeal
¶ 35 1. The January 5, 2012, Recording
¶ 36 In March 2016, the State tendered to defendant a recording that Ryan had secretly made on
January 5, 2012. The police obtained the recording from Ryan on December 2, 2015. The recording
was many hours long and covered her discussion with defendant during A.P.H.’s tae kwon do
class, their conversation with A.P.H. and her accusations against defendant, and the interaction
with the police officers who arrived at the home.
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2024 IL App (2d) 230050-U¶ 37 On February 24, 2017, defendant filed a (1) “Motion to Suppress [the January 5, 2012,]
Recording” (motion to suppress) and (2) “Motion to Dismiss—Motion for Sanctions—
Withholding of Material Evidence” (motion to dismiss).
¶ 38 The motion to suppress argued that the January 5, 2012, recording was inadmissible. The
motion also included the following allegations concerning other recordings:
“7. On January 13, 2012, a Court Order was entered authorizing the use of an
eavesdropping device for a period between January 13, 2012 at [sic] February 12, 2012.
8. That the State did not tender any discovery from any evidence elicited as it
related to the eavesdropping device and overhear during the period of January 13, 2012
through February 12, 2012.”
¶ 39 The motion to dismiss argued that, due to the failure to disclose the January 5, 2012,
recording, the charges against defendant should be dismissed or Ryan should be barred from
testifying in the second trial. That motion also included the above allegations concerning other
recordings.
¶ 40 The State’s combined response to the motions did not address the allegations concerning
any recordings made between January 13, 2012, and February 12, 2012.
¶ 41 At a May 5, 2017 hearing, the State asserted that it did not learn of the January 5, 2012,
recording until one of its meetings with Ryan after the trial court had granted a continuance of the
second trial. The State then immediately obtained a copy and thereafter provided it to defendant.
The State represented that it did not anticipate using the recording at the second trial. Defense
counsel stated that he would have proceeded differently in the first trial, including in his cross-
examination of Ryan, had he known of the recording. Defendant did not make any argument as to
the eavesdropping order or recordings made pursuant to that order.
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2024 IL App (2d) 230050-U¶ 42 On May 10, 2017, the trial court denied defendant’s motions. It found no evidence that the
State knew of the January 5, 2012, recording before the first trial, even though the State used due
diligence to ensure that it would be aware of such evidence. It also found that the State promptly
notified defendant after learning of the recording. The court further stated that even if the State
had violated discovery rules, the proper remedy would not be dismissal of the charges but, rather,
to provide defendant with more time to prepare for trial. The court noted that, because defendant
had the recording in his possession since March 20, 2016, he had ample time to prepare for trial.
¶ 43 2. Section 115-10 Motion
¶ 44 Also on February 24, 2017, defendant filed a motion seeking to bar readmission of the
section 115-10 statements introduced at the first trial. Defendant noted that he was receiving a new
trial because the trial court ruled that these statements should not have been admitted in the first
trial as A.P.H.’s testimony failed to accuse him of wrongdoing. The trial court denied the motion
on May 10, 2017. It stated that a court may make a reliability determination under section 115-10
without the child’s testimony and that A.P.H.’s failure to testify as to any specific acts was based
on the State’s line of questioning, as opposed to her testifying that nothing happened with her and
defendant in bed.
¶ 45 3. Additional Charges
¶ 46 On July 31, 2017, the State charged defendant with four additional counts of aggravated
criminal sexual abuse (720 ILCS 5/11-1.60(b), (c)(1)(i) (West 2012)) and six counts of predatory
criminal sexual assault of a child (720 ILCS 5/11-1.40(a)(1) (West 2012)). In the amended
indictment, counts I through IV were the original charges of aggravated criminal sexual abuse.
Counts V through X charged defendant with predatory criminal sexual assault of a child. Counts
V, VI, and VII alleged that defendant, who was over 17, committed an act of sexual penetration in
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2024 IL App (2d) 230050-Uthat he put his penis in the mouth of A.P.H., who was under 13. Counts VIII through X alleged
that defendant put his penis on A.P.H.’s vagina. 2 Counts XI through XIV were the four new
charges of aggravated criminal sexual abuse and alleged that defendant, for his sexual gratification,
put his penis on A.P.H.’s arm (counts XI and XIII) and on her face (counts XII and XIV).
¶ 47 4. Word Cards
¶ 48 On November 2, 2018, before defendant’s second trial (a bench trial), the State filed a
motion asking that A.P.H. be allowed to testify with “visual aids,” specifically to use cards with
the words “penis,” “testicles,” and “vagina” instead of saying these words. The trial court
addressed the motion on November 5, 2018, before the parties’ opening statements. The State
stated that during A.P.H.’s 2017 interview at the Children’s Advocacy Center (CAC interview),
as well as in interviews with the prosecutor, A.P.H. did not speak the aforementioned words
because she associated them with “terrible things.” The State asserted that it had 11 clips of the
2017 CAC interview where A.P.H. refused to use the words and resorted to using hand signals.
The State argued that the words were important to the case and that using the cards would facilitate
A.P.H.’s testimony and actually enhance defendant’s ability to cross-examine her because, without
the cards, A.P.H. might remain mute when asked questions about sexual activity. Defense counsel
objected, stating that A.P.H. was 14 years old and had no disability. He argued that A.P.H. could
instead use slang terms or her own words and that using the word cards would undermine the
ability to assess A.P.H.’s demeanor and credibility.
¶ 49 The trial court ruled that the word cards were demonstrative evidence that would assist the
court, as the trier of fact, in understanding A.P.H.’s testimony. The court found that the dangers of
confusion or any other negative effects would be mitigated because defendant was having a bench
2
The State dismissed counts IX and X before trial.
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2024 IL App (2d) 230050-Utrial and the court would be paying attention to A.P.H.’s demeanor and the manner in which she
testified.
¶ 50 5. Testimony
¶ 51 A.P.H. testified that she was 14 years old and a freshman in high school. She lived with
Ryan and her stepfather in Plainfield. In the days leading up to her eighth birthday, she lived in
Montgomery with Ryan and defendant. A.P.H. had seen an ant on the top of her bottom bunk bed,
so she did not want to sleep in her bed anymore. A.P.H., therefore, began sleeping alternately with
Ryan, who slept in the spare room, and defendant, who slept in the master bedroom. Around that
time, A.P.H. had heard from other kids at school that kissing caused pregnancy. That did not seem
right to her because her parents kissed, yet she did not have a sibling.
¶ 52 The assistant state’s attorney asked if A.P.H. knew the difference between a man’s and a
woman’s private parts. She answered in the affirmative. He asked if she was comfortable “saying
[those words] out loud,” and she replied no. He asked if she would be more comfortable using the
word cards, and she said yes. The assistant state’s attorney showed her drawings of a man and a
woman with different parts highlighted, and A.P.H. identified the highlighted parts with the word
cards.
¶ 53 A.P.H. then continued with her testimony. Shortly before her eighth birthday, she was with
defendant in his home office. On the monitor, she saw a woman’s mouth on a man’s “penis.” 3 She
3
A.P.H. used the word cards with “penis,” “testicles,” and “vagina” throughout her
testimony instead of saying the words. We use quotation marks to indicate when she used a word
card. Where these words do not have quotation marks, A.P.H. was responding to the assistant
state’s attorney’s questions that used those words.
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2024 IL App (2d) 230050-Umight have seen something like that previously in a movie. Defendant turned off the monitor. The
image confused A.P.H. and made her curious.
¶ 54 One night shortly thereafter, while getting in bed with defendant, she asked him if kissing
made a woman pregnant. He said no, and she asked how babies were created. Defendant explained
the process to her, “[l]ike in health class.” Defendant was wearing boxers, and he showed her his
“penis” through the opening in the boxers. It was the first time A.P.H. had seen an adult male
penis. He then played a game where he put his “testicles” around his “penis,” and the penis was
supposed to be a “present.” When defendant did that, his penis was soft. At some point in the
nights leading up to A.P.H.’s eighth birthday, A.P.H. put her hand on defendant’s penis, which
was hard. She did not keep her hand still but, rather, “[m]oved it” at defendant’s request. She put
her hand on defendant’s penis on more than two other nights.
¶ 55 Also, on a night leading up to her eighth birthday, defendant put his pinky finger in her
mouth before putting his “penis” in her mouth. His penis was hard. The first time, A.P.H. told
defendant that “[i]t tastes bad.” Defendant said that “[t]here was something that could help,” but
they could not use it because Ryan “would smell it.” Defendant put his penis in her mouth on more
than two different nights leading up to her eighth birthday.
¶ 56 On another night around the same time, defendant put his penis in her “vagina.” A.P.H.
was awake and sitting on the bed when this happened. Defendant’s penis was hard, and he asked
her if it felt good. She said no. This occurred one time.
¶ 57 There were also times when A.P.H. was sleeping with defendant and she woke up in the
middle of the night while defendant was touching her with his “penis.” He did this on the side of
her body and face, each more than once.
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2024 IL App (2d) 230050-U¶ 58 The last time defendant put his penis in A.P.H.’s mouth, he was standing at the end of the
bed, and he asked her to get a towel so the sheet would not get dirty. He put the towel on the end
of the bed and touched his “penis.” A.P.H. saw something come out and go on the towel. Defendant
told her not to tell Ryan, but A.P.H. did not remember if he said why. A.P.H. did not sleep with
defendant that night but, rather, went into the bathroom, where Ryan was, and talked to her.
¶ 59 On cross-examination, A.P.H. did not remember where the family went for her birthday or
what she did after school that day. Around that time, she and Ryan would bathe together on
occasion, with Ryan facing her in the tub. Ryan did not talk to A.P.H. about body parts at these
times. However, A.P.H. watched many scary movies, and Ryan would explain what was happening
if there was a “make-out scene.” A.P.H. remembered testifying at a prior trial, and she agreed that
she did not previously testify that she touched defendant’s penis with her hand or that he touched
her vagina. Aside from the trial, A.P.H. had talked to other people about defendant’s conduct, and
she did not tell them these things, either.
¶ 60 A.P.H. testified that she met with “Mu” 4 in July 2017, before the current trial, and they
recapped her previous testimony. Mu said that A.P.H. “need[ed] to talk more, like not freeze up,”
which was what had happened in the first trial. A.P.H. made additional allegations against
defendant after meeting with Mu, but those came from “information [A.P.H. was] holding in for
several years.” Before 2017, she had not thought about the other incidents. Defense counsel asked
A.P.H. if, before she made her additional allegations, “there [was] an occasion” when she visited
porn sites. She said yes. Counsel asked what kind of porn sites A.P.H. had been visited, and the
State objected. The trial court overruled the objection but stated that counsel was “not going to
4
The parties stipulated that “Mu” was Assistant State’s Attorney Nemura Pencyla.
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2024 IL App (2d) 230050-Uhave a long leash on this.” A.P.H. answered, “I don’t know,” when asked what kind of porn sites
she had visited and whether the sites had men and women. A.P.H. also did not know if Ryan had
said that adult male testicles were like two balls with hair around them.
¶ 61 Ryan provided testimony consistent with her testimony in the first trial regarding the
family’s sleeping arrangements and A.P.H.’s statements to her while taking a bath. She again
testified that, before January 4, 2012, she and defendant got along “pretty well.” She stated, “I
think like most marriages, we had little fights here and there, but in general, pretty well.” When
asked if they ever had “any fights,” she responded, “Of course.” When asked what the fights were
about, she stated: “I mean, most were smaller things like about, you know, him not helping with
housework or playing video games a lot was a sticky point.”
¶ 62 Ryan also testified as follows. She was familiar with A.P.H.’s description of defendant’s
pulling his testicle skin over his penis, because defendant had done that in front of Ryan numerous
times after having sex. A.P.H. told Ryan that she and defendant had played that “game,” as well
as the “game” where they pretended that defendant’s penis was a marker, many times.
¶ 63 Ryan planned to confront defendant the next day—January 5, 2012—during A.P.H.’s tae
kwon do class. In preparation, she cued up an e-mail that would automatically be sent to her mother
the next morning saying that if she received the e-mail, Ryan had confronted defendant and
something bad had happened. Ryan also hid a small voice recorder in her bra. It recorded
everything that was said that evening until Ryan went to bed. The State played excerpts in which
Ryan, defendant, and A.P.H. conversed. In the first excerpt, Ryan described to defendant the
“game” with his testicle skin and said that he had also done that with Ryan. Defendant began
breathing hard and crying. In the other excerpt, Ryan had A.P.H. explain to defendant what she
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2024 IL App (2d) 230050-Utold Ryan in the bathtub about the “games.” Defendant asked A.P.H. who she did this with, and
she said, “[Y]ou and me.” Defendant then began to cry.
¶ 64 When Ryan mentioned calling the police, defendant said that the police “[would not] even
look at anyone else” and would “crucify” him. Ryan contacted the police later that night, and they
just took some information and said that someone would contact her to set up an interview for
A.P.H. Defendant was not taken into police custody, but “the decision was that he would leave the
house for the night.” He came back to the house only once after that, to get his things. Ryan filed
for divorce in February 2012.
¶ 65 When Ryan and defendant were married, they used two sexual aids that had aromas. One
was a minty menthol gel for oral sex, and the other was a fruity one that would get hot when blown
on. They were kept in a box on a deep shelf in their closet, and to the best of Ryan’s knowledge,
A.P.H. had never seen them.
¶ 66 A.P.H. currently had a cell phone, and Ryan made it clear to her that Ryan would have
access to the phone’s search history. Before July 22, 2017, Ryan and A.P.H. had discussed the
upcoming trial with the State’s Attorney’s office. Sometime earlier in the week of July 22, 2017,
Ryan noticed from the Google search history on A.P.H.’s phone that “there were some
pornography sites.” When asked if she remembered the names of the websites, she replied, “I think
it was just one. I think it was [Pornhub].” She testified: “I mean, there were several different videos
it looked like. I mean, I don’t know the exact videos. I didn’t look at them.” A.P.H. was not home
at the time. Ryan later addressed the situation with A.P.H., which resolved it “[f]or the most part.”
A.P.H. told Ryan that she would not look at porn sites again. On July 22, 2017, Ryan learned new
information from A.P.H. about her contact with defendant. Ryan shared this information with the
State’s Attorney’s office.
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2024 IL App (2d) 230050-U¶ 67 At the first trial, Ryan did not mention the January 5, 2012, audio recording because no
one asked her about it. She believed she told a detective about the recording when she gave her
original statement. She recalled being told that the recording was “not something [they] could use
anyway.” Ryan did not think that the subject came up in the draft e-mail to her mother, which she
never sent.
¶ 68 Buddy, Marmo, and Hawley testified consistently with their testimony at the first trial.
Buddy additionally testified that A.P.H. was identified as needing educational support. Hawley
testified that during her 2012 interview with A.P.H., A.P.H. used the word “penis” several times.
¶ 69 Defendant moved for a directed finding, and the trial court denied the motion. Defendant
then testified as follows. Between December 1, 2011, and January 4, 2012, A.P.H. never asked
how a pregnancy occurred, nor did defendant have any sexual contact with A.P.H. or show her his
penis. Defendant denied that he and Ryan used sexual aids together; rather, she had aids for herself.
He had never pulled the skin surrounding his testicles over his penis. On January 4 or 5, 2012,
there was no divorce pending between him and Ryan, but they talked about it frequently.
Defendant wanted to divorce Ryan because, in the summer of 2011, he caught her showing her
breasts online to a man, and she would not discuss it. Afterward, they were like roommates, except
when dealing with A.P.H. They argued “constantly” and in A.P.H.’s presence.
¶ 70 Defendant left the house on January 5, 2012, because one of the officers said it would be
best if defendant did. Defendant also believed that he needed to let law enforcement do their job,
and he did not want them to say that he had tainted the investigation in any way. Defendant
admitted that (1) he did not say anything on the January 5, 2012, recording after Ryan asked if he
was going to tell her that A.P.H. was lying; (2) he did not say, “I didn’t do that,” when A.P.H.
mentioned balls or defendant’s pulling his skin over his penis; and (3) he did not say anything
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2024 IL App (2d) 230050-Uwhen A.P.H. said, “[M]e and you.” Defendant explained that he was silent when the allegations
were made because he was terrified that people would believe the allegations and that he would
end up dead or killed in prison.
¶ 71 Defendant’s sister testified that she stayed with the family for three days in October 2011.
She testified, “[Defendant and Ryan] were separated the time I was there. I would just spend time
with [A.P.H.] and [defendant] together, and then with Ryan and [A.P.H.] together. I didn’t really
spend time together with them all. It was kind of tense there.” She did not know if the failure to
interact “was some sort of long-term problem or just some short spat.” She has “observed
[defendant and Ryan] fight on multiple occasions.”
¶ 72 6. Trial Court’s Ruling
¶ 73 The trial court issued its ruling on November 7, 2018, stating as follows. It considered
several factors in weighing A.P.H.’s and defendant’s credibility. It considered their demeanor,
physical appearance, the manner in which they testified, and the substance of their testimony. It
recognized that A.P.H. did not make any additional allegations until July 2017, five years after her
initial allegations and three years after the first trial. The court considered A.P.H.’s demeanor
during the VSI and her statements that she regretted telling Ryan because of how it affected the
family. The court noted that, although A.P.H. used word cards instead of saying the words, it
observed her physical movements and mannerisms while using the cards. It considered Ryan’s
recording for the sole purpose of its effect on defendant. The court gave no weight to the excerpts
of the recording where defendant did not respond when A.P.H. was in the car, because the court
was unwilling to label his silence as consciousness of guilt in that circumstance. It did give some
weight to defendant’s silence when Ryan and defendant were alone. The court specifically
mentioned defendant’s silence after Ryan said that A.P.H. had described defendant’s pulling his
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2024 IL App (2d) 230050-Utesticles over his penis and that Ryan knew what A.P.H. was talking about because defendant had
jokingly done the same with his penis when he and Ryan were in bed together after having sex.
The court found that defendant’s silence was contrary to his testimony that he had never
manipulated his genitals in that manner.
¶ 74 The trial court concluded, from the totality of the circumstances, that A.P.H.’s claims were
credible. The court found defendant guilty of all 12 charges.
¶ 75 On March 18, 2019, the trial court denied defendant’s amended posttrial motion. On May
1, 2019, the court sentenced defendant to an aggregate term of 45 years in prison. The court merged
the eight aggravated-criminal-sexual-abuse counts (I through IV and XI through XIV) into three
counts (IV, XI, and XII) and imposed concurrent five-year terms on those counts. It sentenced
defendant to 10 years’ imprisonment on each of the four predatory-criminal-sexual-assault-of-a-
child counts (counts V through VIII) running consecutively to each other and the 5-year terms on
counts IV, XI, and XII. On June 3, 2019, the court denied defendant’s motion to reconsider his
sentence. Defendant timely appealed.
¶ 76 On appeal, defendant argued that (1) the State violated Brady v. Maryland, 373 U.S. 83(1963), by failing to timely disclose Ryan’s January 5, 2012, recording; (2) the trial court erred in
admitting hearsay statements under section 115-10 of the Code; (3) the evidence was insufficient
to prove defendant guilty beyond a reasonable doubt; (4) the trial court erred in limiting cross-
examination regarding A.P.H.’s viewing of pornography; (5) the trial court erred in allowing
A.P.H. to testify using word cards; (6) the trial court erred in failing to consider the entire recording
made by Ryan; and (7) trial counsel was ineffective for, among other things, failing to use
numerous portions of the record that “destroyed the State’s case and demonstrated his innocence.”
Hemphill, 2021 IL App (2d) 190473-U, ¶ 129. We affirmed. Id. ¶ 138.
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2024 IL App (2d) 230050-U¶ 77 On October 24, 2022, defendant petitioned for postconviction relief. The trial court
summarily dismissed the petition as frivolous and patently without merit. This timely appeal
followed.
¶ 78 II. ANALYSIS
¶ 79 Defendant contends that the trial court erred in summarily dismissing his postconviction
petition because he presented colorable claims of (1) actual innocence, (2) a violation of his rights
under Brady, and (3) ineffective assistance of trial counsel. In support of his actual innocence
claim, defendant contends that “[n]ew evidence was presented that demonstrated among other
things: APH had a motive to lie, [defendant’s] and Ryan’s marriage had fallen apart[,] and there
was no justification for APH’s use of the [word] cards.” In support of his Brady claim, defendant
contends that “the pornography APH admitted to watching before she made her new allegations
in 2017 was not produced to the defense.” In support of his ineffectiveness claim, defendant
contends that trial counsel was ineffective in that he “did not confront APH with readily available
evidence, such as the fact that she regularly used sexual terms and was not offended by them,” and
“failed to use readily available evidence to show that Ryan’s and [defendant’s] marriage was
irreversibly destroyed.”
¶ 80 The Act creates a statutory remedy for criminal defendants who claim that substantial
violations of their constitutional rights occurred at trial. People v. Edwards, 2012 IL 111711, ¶ 21.
Under the Act, the trial court independently reviews the postconviction petition within 90 days of
its filing to determine if it “is frivolous or is patently without merit” (725 ILCS 5/122-2.1(a)(2)
(West 2020)), in which case the petition shall be summarily dismissed. People v. Edwards, 197
Ill. 2d 239, 244 (2001). “A petition may be summarily dismissed as frivolous or patently without
merit only if the petition has no arguable basis either in law or in fact.” People v. Tate, 2012 IL
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2024 IL App (2d) 230050-U112214, ¶ 9; People v. Hodges, 234 Ill. 2d 1, 16 (2009). “A petition which lacks an arguable basis
either in law or in fact is one which is based on an indisputably meritless legal theory or a fanciful
factual allegation.” Hodges, 234 Ill. 2d at 16. An example of an indisputably meritless legal theory
is one that is “completely contradicted by the record,” while fanciful factual allegations include
those that are “fantastic or delusional.” Id. at 16-17.
¶ 81 It is well established that “ ‘frivolous or patently without merit’ encompasses the common-
law doctrines of res judicata and forfeiture.” (Internal quotation marks omitted.) People v. Munz,
2021 IL App (2d) 180873, ¶ 28. “Res judicata bars the consideration of issues that were previously
raised and decided on direct appeal, whereas forfeiture bars any claims that could have been raised
on direct appeal but were not.” Id.¶ 82 The summary dismissal of a postconviction petition is subject to de novo review. People v.
Hatter, 2021 IL 125981, ¶ 24.
¶ 83 A. Actual Innocence Claim
¶ 84 We first consider whether defendant’s petition presents an arguable claim of actual
innocence.
¶ 85 A claim of actual innocence requires evidence that is “(1) newly discovered, (2) material
and not cumulative, and (3) of such conclusive character that it would probably change the result
on retrial.” People v. Robinson, 2020 IL 123849, ¶ 47. “Newly discovered evidence is evidence
that was discovered after trial and that the [defendant] could not have discovered earlier through
the exercise of due diligence.” Id. “Material” means that the evidence is “relevant and probative
of the [defendant’s] innocence.” Id. “Noncumulative” means that the evidence “adds to the
information that the fact finder heard at trial.” Id. The “conclusive character” requirement is “the
most important element of an actual innocence claim”; it means that the new evidence, “when
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2024 IL App (2d) 230050-Uconsidered along with the trial evidence, would probably lead to a different result.” Id. In other
words, “[t]he new evidence need not be entirely dispositive,” but it must “place[ ] the trial evidence
in a different light and undermine[ ] the court’s confidence in the judgment of guilt.” Id. ¶ 48.
¶ 86 Defendant relies on the following “new evidence” in support of his actual innocence claim:
(1) an affidavit by Kyler Hosanna, which according to defendant, impeaches Ryan’s testimony
concerning the discovery of pornography on A.P.H.’s cell phone and provides evidence that A.P.H.
fabricated the allegations in counts V through XIV, which were added on July 31, 2017, before
the second trial began, and (2) evidence found on A.P.H.’s phone that, according to defendant,
shows that (a) Ryan lied about the status of her and defendant’s marriage and (b) A.P.H. was not
uncomfortable using sexual language. Defendant contends that “[w]hen one considers the totality
of the evidence now known, one must conclude that there is a reasonable likelihood that if that
evidence is submitted to a new trier of fact, the outcome of the trial will be different.” We address
each piece of “new evidence” in turn.
¶ 87 1. Hosanna’s Affidavit
¶ 88 In the affidavit, Hosanna averred that he was married to Ryan before defendant’s second
trial and lived with Ryan and A.P.H. Hosanna was present when Ryan saw A.P.H.’s cell phone
and discovered that A.P.H. was viewing videos on “Pornhub,” a pornography website. Hosanna
averred: “When Ryan discovered that, Ryan was very angry. She confronted [A.P.H.] [A.P.H.] ran
to the bathroom and shut the door.” According to Hosanna: “There was a lot of yelling. Ryan told
[A.P.H.] she was in big trouble.” Hosanna further averred: “Only then did [A.P.H.] make the
allegations against [defendant] after Ryan made it clear that [A.P.H.] was in trouble and subject to
discipline for reviewing the pornographic videos.”
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2024 IL App (2d) 230050-U¶ 89 Defendant claims that Hosanna’s affidavit provides “new evidence” that A.P.H. fabricated
the allegations in counts V through XIV. According to defendant, the affidavit impeaches Ryan’s
testimony that she “calmly address[ed] the situation” with A.P.H. and shows, instead, that Ryan
“became enraged.” Defendant argues that this evidence thus establishes a motive for A.P.H. to
fabricate the new allegations, i.e., to “garnish[ ] [sic] sympathy” and “deflect blame for her actions
[of viewing pornography].” Defendant also argues that the affidavit “provide[s] new evidence of
the source of A.P.H.’s sexual knowledge”—the pornography. We disagree.
¶ 90 First, even if the affidavit can be deemed newly discovered evidence, it is cumulative to
evidence presented at trial. Both A.P.H. and Ryan testified that A.P.H. had visited several
pornographic websites on her cell phone before she made the additional allegations against
defendant. Thus, the affidavit cannot be deemed noncumulative evidence of where A.P.H. obtained
her sexual knowledge. We also disagree with defendant that Hosanna’s affidavit impeaches Ryan’s
testimony concerning how she reacted when she learned that A.P.H. had visited pornographic
websites. Ryan testified that she addressed the situation with A.P.H., which resolved it “[f]or the
most part.” She never testified that she addressed the situation “calmly” or denied that A.P.H. was
somehow punished. Also, contrary to defendant’s assertion, Hosanna never stated in the affidavit
that Ryan became “enraged”; he stated only that there was “a lot of yelling.” Again, Ryan did not
testify otherwise.
¶ 91 In any event, even if the evidence presented in the affidavit were noncumulative—in that
it established additional facts concerning the nature of Ryan’s response to the discovery of
pornography on A.P.H’s cell phone—it is not arguable that the new evidence was “material” or
“of such conclusive character that it would probably change the result on retrial.” Id. ¶ 47.
Defendant’s claim that the affidavit established a motive for A.P.H. to fabricate the additional
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2024 IL App (2d) 230050-Ucharges is nothing more than speculation. In finding defendant guilty, the trial court specifically
noted that its duty was to weigh the credibility of A.P.H. and defendant. The court stated:
“And it is the demeanor. It is [the] manner while testifying. It is looking at the specifics of
what was said, and some of the additional information that was provided by [A.P.H.] when
she was at the [VSI], and some of the details, and some of the statements that she made,
and the manner in which she testified here that is significant to me.”
The court expressly considered “the fact that there was no mention of [the new] allegations ***
until July of 2017, five years after the initial allegations were made, and three years after the first
trial in this matter.” The court stated: “So having considered all of this evidence which was
presented, and having heard and considered the arguments of counsel, I find that [A.P.H.] is
credible in her claims.”
¶ 92 Given that the trial court was aware that pornography was found on A.P.H.’s cell phone
before she made the new allegations, it is not arguable that if the court heard additional evidence
that, when Ryan found the pornography, “[t]here was a lot of yelling” and “Ryan told [A.P.H.] she
was in big trouble,” the court’s credibility determinations would have been affected such that it
would have reached a different result.
¶ 93 2. Evidence on A.P.H.’s Cell Phone
¶ 94 Defendant contends that his petition presents “new evidence” consisting of “written
documentation” “obtained after an analysis of APH’s cell phone.” According to defendant, this
evidence establishes that (a) Ryan lied about the status of her marriage to defendant and (b) A.P.H.
was not uncomfortable using sexual language. According to the petition, the State conducted a
forensic analysis on A.P.H.’s phone in July 2017, before the second trial, and a disk containing the
results of that analysis was in trial counsel’s file.
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2024 IL App (2d) 230050-U¶ 95 First, defendant points to the following text messages obtained from A.P.H.’s cell phone,
which she sent to a friend on July 3, 2017:
“When my mom and my real dad were together, they fought everyday [sic], until they
ended up sleeping in seprat [sic] rooms[.] *** I would spend hours outside by myself, so I
would have [sic] to listen to them yelling[.] *** And my dad was out of the house at work
all day, and when he came home, we would just play video games[.]”
According to defendant, this evidence shows that Ryan’s testimony that she and defendant “had
little fights here and there, but in general, [got along] pretty well,” was not true. He argues that the
evidence also establishes a motive for Ryan to fabricate the allegations against defendant.
¶ 96 Second, defendant points to other information obtained from A.P.H.’s cell phone, namely
that one of A.P.H.’s contacts was labeled “Penis” and that she had done a “Google” search for
“penis meme,” resulting in several images that included the word “penis.” According to defendant,
this evidence establishes that A.P.H. was comfortable using sexual language and that, thus, the use
of word cards was not necessary.
¶ 97 Defendant cannot state an arguable actual innocence claim based on the information
obtained from A.P.H.’s cell phone. In his brief, defendant claims that the evidence was “unknown
to the trial court.” That may be. However, for a claim of actual innocence, a defendant must present
evidence that is both “newly discovered” and that defendant “could not have discovered earlier
through the exercise of due diligence.” Id. Here, the information on A.P.H.’s phone was
discoverable through the exercise of due diligence before defendant’s second trial.
¶ 98 In any event, even if the evidence on A.P.H.’s cell phone could be considered “newly
discovered” and established that Ryan had minimized the degree of marital discord, it is not
arguable that this evidence was “material” and “of such conclusive character that it would probably
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2024 IL App (2d) 230050-Uchange the result on retrial.” Id. According to defendant, the evidence “shows Ryan’s motive to
fabricate the allegations.” However, A.P.H.’s statements to Hawley during the VSI interview
clearly rebut any theory that Ryan assisted in fabricating the allegations. A.P.H. told the
interviewer that she regretted telling Ryan about the game she played with defendant. When the
interviewer asked why, A.P.H. stated: “Because none of this would have ever happened. It could
keep the same.” When the interviewer asked, “what would be the same,” A.P.H. stated, “It would
be the same. Nothing would have happened. My dad wouldn’t leave and my mom wouldn’t call
the cops.” Later in the interview, she reiterated that she regretted telling Ryan. She stated:
“[Defendant] would still be here. No one would be mad. I wouldn’t have to go here or anything.”
It is not arguable that, had trial counsel presented the evidence on A.P.H.’s phone indicating that
Ryan and defendant “fought everyday [sic],” it “would probably lead to a different result.” Id.Indeed, in Hemphill II, defendant asserted an ineffectiveness claim based in part on counsel’s
failure to use portions of the January 5, 2012, recording to rebut the State’s assertion that Ryan’s
and defendant’s marriage was harmonious. Hemphill, 2021 IL App (2d) 190473-U ¶ 130. In
rejecting that claim, we specifically noted that “whether Ryan and defendant were satisfied with
their marriage [was] [a] minor or tangential issue[ ] that would not have affected the trial’s
outcome.” Id. ¶ 136.
¶ 99 It is also not arguable that admission of the evidence on the cell phone, which defendant
claims showed that A.P.H. was not uncomfortable using sexual terms, would “probably change
the result on retrial.” Robinson, 2020 IL 123849, ¶ 47. First, we disagree with defendant’s claim
that the evidence would have precluded using word cards. In Hemphill II, defendant argued that
the trial court abused its discretion in allowing the use of word cards. In rejecting that argument,
we noted: “The assistant state’s attorney stated that during A.P.H.’s 2017 CAC interview and
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2024 IL App (2d) 230050-Uduring interviews with the prosecutor, A.P.H. would not speak the words because she associated
them with terrible things and would instead use hand signals.” Hemphill, 2021 IL App (2d)
190473-U, ¶ 122. Given the State’s reasoning for the necessity of using word cards, any evidence
that A.P.H. had used the words in writing to a friend on her phone, or had sexual memes on her
phone, would not change the fact that A.P.H. did not want to speak the words. Moreover, in
denying defendant’s posttrial motion—where he argued it was error to allow using word cards—
the trial court specifically found that using word cards did not prejudice defendant. The court
stated: “It [the use of the word cards] didn’t have an effect on [the court] as a trier of fact in terms
of any unfair prejudice to the defendant. That was just her manner in which she expressed those
terms. I didn’t find it a major factor in my rulings.”
¶ 100 3. Ryan’s Additional Recordings
¶ 101 Before turning to the next postconviction claim, we note that, within his actual innocence
argument, defendant also claims: “Additionally, the evidence of [defendant’s] denials on the
overhears conducted in January and February 2017 [sic] helped establish his innocence.”
¶ 102 In his petition, defendant stated that, on January 13, 2012, a court order was entered
authorizing the use of an eavesdropping device between January 13, 2012, and February 12, 2012.
In support, he did not attach a copy of the court order; instead, he attached a copy of his February
24, 2017, motion, which sought to suppress the January 5, 2012, recording secretly made by Ryan.
In the motion to suppress, defendant referred to the court’s order authorizing the overhears and
stated that “the State did not tender any discovery from any evidence elicited as it related to the
eavesdropping device and overhear during the period of January 13, 2012[,] through February 12,
2012.” Apparently, the matter was not addressed in the trial court. Defendant further asserted in
his petition that “[postconviction] counsel obtained the recordings upon receipt of the trial
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2024 IL App (2d) 230050-Ucounsel’s file.” Defendant attached to his petition disks containing Ryan’s recordings from January
18, 2012, and January 24, 2012.
¶ 103 On appeal, however, defendant claims only that this evidence “help[s] establish his
innocence.” He makes no argument that the evidence is “new” for purposes of his actual innocence
claim. Indeed, he does not even specify or cite the portions of the recordings he relies on. Illinois
Supreme Court Rule 341(h)(7) (eff. Oct. 1, 2020) requires that the appellant include an
“[a]rgument, which shall contain the contentions of the appellant and the reasons therefor, with
citation of the authorities and the pages of the record relied on.” The failure to develop an
argument, cite persuasive authority, or present a well-reasoned argument violates Rule 341(h)(7).
Velocity Investments, LLC v. Alston, 397 Ill. App. 3d 296, 297 (2010). In such a case, we have the
authority to hold that an argument has been forfeited. Id. Accordingly, defendant has forfeited any
actual innocence claim based on these recordings. Even if we were to consider defendant’s
arguments, they are without merit because, the evidence that defendant denied the allegations is
not of such a conclusive character that it would have probably changed the result on retrial.
¶ 104 B. The State’s Alleged Withholding of Evidence
¶ 105 We next consider defendant’s contention that the trial court erred in summarily dismissing
his postconviction petition, because he stated an arguable claim that the State improperly withheld
evidence.
¶ 106 In his postconviction petition, defendant claimed that the State violated Brady, 373 U.S.
83 (1963), when it withheld the following evidence from defendant: (1) evidence of A.P.H.’s visits
to Pornhub and (2) evidence of recordings made by Ryan on January 18, 2012, and January 24,
2012. He also claimed, with respect to the January 18, 2012, and January 24, 2012, recordings,
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2024 IL App (2d) 230050-Uthat the State violated the notice requirement of section 108A-8(a) of the Code (725 ILCS 5/108A-
8(a) (West 2016)).
¶ 107 In Brady, the United States Supreme Court held that “the prosecution must disclose
evidence that is favorable to the accused and ‘material either to guilt or to punishment.’ ” People
v. Harris, 206 Ill. 2d 293, 311 (2002) (quoting Brady, 373 U.S. at 87). To succeed on a Brady
claim, a defendant must establish “(1) the undisclosed evidence is favorable to the accused because
it is either exculpatory or impeaching; (2) the evidence was suppressed by the State either wilfully
or inadvertently; and (3) the accused was prejudiced because the evidence is material to guilt or
punishment.” People v. Beaman, 229 Ill. 2d 56, 73-74 (2008). “Evidence is material if there is a
reasonable probability that the result of the proceeding would have been different had the evidence
been disclosed.” Id. at 74. To establish materiality, a defendant must show that “the favorable
evidence could reasonably be taken to put the whole case in such a different light as to undermine
confidence in the verdict.” Kyles v. Whitley, 514 U.S. 419, 435 (1995).
¶ 108 1. Evidence of A.P.H.’s Visits to Pornhub
¶ 109 Defendant contends that the State violated Brady by withholding evidence of A.P.H.’s
visits to Pornhub. Defendant asserted in his petition that the State conducted a forensic analysis on
A.P.H.’s cell phone in July 2017, before the second trial. A disk containing the results of that
analysis was contained in trial counsel’s file. After the second trial, postconviction counsel
provided the disk to Brian Karel. According to Karel’s affidavit attached to the petition, he was a
“computer consultant with specialized knowledge related to computers and cell phones” and
owned a business named “BrainSearch.” Karel averred that he “access[ed] and review[ed] the data
on the phone” and found “no evidence on this phone that the website ‘Pornhub’ was visited.” Karel
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2024 IL App (2d) 230050-Uconcluded that “before the cell phone extraction was performed, all evidence of visits to Pornhub
was deleted.”
¶ 110 Defendant has not presented an arguable Brady claim. First, it is important to note that, in
his opening brief, defendant asserts that Karel stated that “evidence of APH’s visits to Pornhub
and all of the pornographic videos had been deleted.” (Emphasis added.) He asserts in his reply
brief that Karel “concluded that any and all visits related to the viewing of pornographic videos
were deleted prior to the State’s analysis.” (Emphasis added.) That is not what Karel stated or
concluded. Karel stated only that he found “no evidence on this phone that the website ‘Pornhub’
was visited.” This is significant because Ryan did not unequivocally testify that A.P.H. viewed the
pornography on “Pornhub.” She stated, “I think it was [Pornhub].” (Emphasis added.) In addition,
although A.P.H. acknowledged that she viewed pornography on her cell phone, she did not name
the website that she visited. Thus, she might not have been looking at Pornhub specifically.
Moreover, even if there was conclusive evidence that A.P.H. viewed pornography on Pornhub
specifically, it is nothing more than speculation to claim that the State (as opposed to A.P.H. or
Ryan) deleted evidence of these visits before the phone was turned over for analysis. Thus, it is
not arguable that the State either willfully or inadvertently suppressed evidence. (Curiously, in
making his Brady argument on appeal, defendant does not expressly claim that the State
suppressed the evidence; he states only that “evidence was deleted from the phone.”).
¶ 111 2. Recordings Made by Ryan on January 18, 2012, and January 24, 2012
¶ 112 We next consider defendant’s argument concerning evidence of recordings made by Ryan
on January 18, 2012, and January 24, 2012. In his petition, defendant stated that “it is unknown if
or when the January 2012 recordings wherein Ryan sought admissions from [defendant] were
provided to the defense.” (Emphasis added.) However, he also stated that “[postconviction]
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2024 IL App (2d) 230050-Ucounsel obtained the recordings upon receipt of the trial counsel’s file,” which indicates that the
recordings were received by trial counsel. He then claimed that “[i]f the overhears were not turned
over until after trial or at a time defense counsel could make use of them, another Brady violation
occurred.”
¶ 113 On appeal, defendant has abandoned any Brady claim with respect to these recordings.
Instead, he focuses on his claim that the State violated section 108A-8 of the Code (725 ILCS
5/108A-8 (West 2016)) by failing to comply with its notice requirements. Section 108A-8
provides:
“Notice to Parties Overheard.
(a) Within a reasonable time, but not later than 90 days after either the filing of an
application for an order of authorization or approval which is denied or not later than 90
days after the termination of the period of an order or extension thereof, the issuing or
denying judge shall cause to be served on the persons named in the order or application
and such other persons in the recorded conversation as the judge may determine that justice
requires be notified, a notice of the transaction involving any requested or completed use
of an eavesdropping device which shall include:
(1) notice of the entry of an order, of subsequent approval in an emergency
situation, or the denial of an application;
(2) the date of the entry, approval, or denial;
(3) the period of the authorized use of any eavesdropping device; and
(4) notice of whether during the period of eavesdropping devices were or
were not used to overhear and record various conversations and whether or not such
conversations are recorded.
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2024 IL App (2d) 230050-UOn an ex parte showing of good cause, the notice required by this subsection may be
postponed.
(b) Upon the filing of a motion, the judge may in his discretion make available to
such person or his attorney for inspection such portions of the recorded conversations or
the applications and orders as the judge determines it would be in the interest of justice to
make available.
(c) The contents of any recorded conversation or evidence derived therefrom shall
not be received in evidence or otherwise disclosed in any trial, hearing, or other judicial or
administrative proceeding unless each party not less than 10 days before such a proceeding
has been furnished with a copy of the court order and accompanying application under
which the recording was authorized or approved and has had an opportunity to examine
the portion of the tapes to be introduced or relied upon. Such 10 day period may be waived
by the judge if he finds that it was not possible to furnish the party with such information
within the stated period and that the party will not be materially prejudiced by the delay in
receiving such information.” Id. § 108A-8.
According to defendant, “[a]t best, the State gave notice sometime after February 24, 2017. That
was the date of the pleading wherein the defense complained that it had not received any discovery
of the overhear.”
¶ 114 Any argument based on the State’s failure to provide proper notice under this section is
forfeited because it could have been raised in defendant’s direct appeal. See Munz, 2021 IL App
(2d) 180873, ¶ 29 (arguments based on the record and not raised on direct appeal are forfeited).
The record contains the February 24, 2017, motions in which defendant asserted that, on January
13, 2012, the trial court entered an order authorizing overhears between January 13, 2012, and
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2024 IL App (2d) 230050-UFebruary 12, 2012. According to defendant, the record contains no evidence that defendant
received the requisite notice related to this order. Defendant could have made the same claim on
direct appeal. See id. He makes no argument that the issue could not have been raised in his direct
appeal or that appellate counsel was ineffective for failing to raise the issue. See id.¶ 115 C. Ineffective-Assistance-of-Counsel Claims
¶ 116 Finally, we consider defendant’s claim that his petition stated an arguable claim of
“[i]neffective [a]ssistance of [c]ounsel for fail[ing] to present exonerating evidence.” More
specifically, defendant argues that counsel was ineffective for failing to present (1) the evidence
on A.P.H.’s cell phone showing that (a) the marriage was “in turmoil” and (b) A.P.H. was not
“sexually naïve” and (2) the evidence of defendant’s denials on the January 18, 2012, and January
24, 2012, recordings.
¶ 117 To state a claim of ineffective assistance of counsel in first-stage postconviction
proceedings, a defendant must show that it is arguable that (1) counsel’s performance fell below
an objective standard of reasonableness and (2) counsel’s deficient performance prejudiced
defendant. Hodges, 234 Ill. 2d at 17 (citing Strickland v. Washington, 466 U.S. 668, 687-88
(1984)). More precisely, a defendant must show it is arguable that “counsel’s performance was
objectively unreasonable under prevailing professional norms and that there is a ‘reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.’ ” People v. Cathey, 2012 IL 111746, ¶ 23 (quoting Strickland, 466 U.S. at 694).
A “reasonable probability” is “defined as a showing sufficient to undermine confidence in the
outcome, rendering the result unreliable or fundamentally unfair.” People v. Patterson, 2014 IL
115102, ¶ 81 (citing People v. Evans, 209 Ill. 2d 194, 220 (2004)). When “it is possible to resolve
an ineffective-assistance claim on the basis that the defendant suffered no prejudice as a result of
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2024 IL App (2d) 230050-Ucounsel’s allegedly defective performance, the claim may be decided against the defendant without
consideration of whether counsel’s performance was actually deficient.” People v. Coleman, 168
Ill. 2d 509, 528 (1995).
¶ 118 1. Failure to Present Evidence on A.P.H.’s Cell Phone
¶ 119 We first consider defendant’s claim that trial counsel was ineffective for failing to present
the evidence on A.P.H.’s cell phone showing that the marriage was “in turmoil.” According to
defendant, his “theory of defense was that Ryan assisted in fabricating the evidence because the
marriage was in turmoil.” He argues that, because Ryan testified that the marriage was “fine,” this
evidence would show that “Ryan lied about [a] key fact.” According to defendant, the evidence
would support his claim that Ryan assisted in fabricating evidence against defendant.
¶ 120 This claim fails for lack of arguable prejudice. As already discussed in the context of
defendant’s actual innocence claim (supra ¶ 98), even if the cell phone evidence established that
Ryan had minimized the degree to which the parties argued, A.P.H.’s statements during the VSI
interview clearly rebut any theory that Ryan played a role in fabricating the allegations. In his reply
brief, defendant additionally argues that the evidence would establish a motive for A.P.H. to
fabricate. However, we fail to see how a child would be motivated to fabricate such claims against
a parent if they believed the home life was already in turmoil. A.P.H.’s statements to the
interviewer made clear that she regretted telling Ryan what had happened and that she did not want
defendant to leave. Again, as we noted in Hemphill II, “whether Ryan and defendant were satisfied
with their marriage [was] [a] minor or tangential issue[ ] that would not have affected the trial’s
outcome.” Hemphill, 2021 IL App (2d) 190473-U, ¶ 136. Accordingly, it is not arguable that, had
trial counsel presented the evidence on A.P.H.’s phone regarding the state of defendant’s and
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2024 IL App (2d) 230050-URyan’s marriage, there is a reasonable probability that the result of the trial would have been
different.
¶ 121 We next consider defendant’s claim that counsel was ineffective in failing to present the
evidence on A.P.H.’s cell phone showing that A.P.H. was not “sexually naïve.” Defendant argues
that, had counsel presented this evidence, it would have precluded the State from using word cards,
which—according to defendant—gave the State “an overwhelming advantage.”
¶ 122 This claim, too, fails for lack of arguable prejudice. As already discussed in the context of
defendant’s actual innocence claim (supra ¶ 99), given the State’s reasoning for why the word
cards were necessary, any evidence that A.P.H. had used the words in writing to a friend on her
cell phone, or had sexual memes on her phone, would not change the fact that A.P.H. did not want
to speak the words. Thus, it is not arguable that, had the evidence been presented, the State would
have been precluded from using word cards. Moreover, it is not arguable that defendant was
prejudiced by APH’s use of word cards, given the trial court’s express statement to the contrary
when denying defendant’s posttrial motion.
¶ 123 2. Failure to Present Evidence of Ryan’s January 18, 2012,
and January 24, 2012, Recordings
¶ 124 Finally, we consider defendant’s argument that trial counsel was ineffective in failing to
present evidence showing that defendant denied accusations in “the early 2012 overhears.” To
support this claim below, defendant attached to his petition Ryan’s recordings from January 18,
2012, and January 24, 2012. According to defendant, the State was allowed to present evidence
(from the January 5, 2012, recording) that suggested that defendant did not deny Ryan’s
accusations. He argues, without citing any specific portion of the January 18 and January 24
recordings, that he “was entitled to present, and the court was entitled to hear, that just days later,
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2024 IL App (2d) 230050-URyan continued her attempts to obtain a confession and failed.” He further argues, again without
citing any specific portion of the recordings, that “the recordings demonstrate Ryan’s bias and
motive to convict [defendant].”
¶ 125 First, it is not arguable that counsel was objectively unreasonable in failing to seek
admission of the recordings to rebut the State’s claim that defendant failed to deny the accusations.
First, defendant admitted at trial that he did not deny the allegations when Ryan first confronted
him. He explained: “I was terrified that the allegations would be believed, and then I’d end up dead
or killed in prison or whatever. I mean, I was terrified.” He expressly denied any sexual contact
with A.P.H.
¶ 126 Given defendant’s testimony, any denials on January 18, 2012, and January 24, 2012,
would be inadmissible as prior consistent statements. Prior consistent statements are inadmissible
on direct examination, because they unfairly bolster a witness’s credibility. People v. Terry, 312
Ill. App. 3d 984, 995 (2000). However, a prior consistent statement is admissible to rebut the
inference that the witness was motivated to testify falsely, so long as the motive did not exist at
the time of the prior consistent statement. People v. Lambert, 288 Ill. App. 3d 450, 453 (1997).
Here the State did not accuse defendant of a recent fabrication, further, the motive to testify falsely
would have existed when defendant made the subsequent denial. Defendant cites no authority to
establish that the evidence is otherwise admissible. Thus, it is not arguable that counsel was
objectively unreasonable in failing to seek admission of the evidence.
¶ 127 As for defendant’s claim that counsel was objectively unreasonable in failing to seek
admission of the recordings to show Ryan’s motive to falsely accuse defendant, it is not arguable
that his failure to do so resulted in prejudice. As already noted (supra ¶ 98), A.P.H.’s comments
to Hawley make clear that Ryan played no role in the accusations.
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2024 IL App (2d) 230050-U¶ 128 III. CONCLUSION
¶ 129 For the reasons stated, we affirm the judgment of the circuit court of Kendall County.
¶ 130 Affirmed.
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