People v. Martin , 2024 IL App (4th) 231154-U ( 2024 )

NOTICE 2024 IL App (4th) 231154-U FILED
This Order was filed under November 4, 2024
Supreme Court Rule 23 and is NO. 4-23-1154 Carla Bender
not precedent except in the th
4 District Appellate
limited circumstances allowed IN THE APPELLATE COURT
under Rule 23(e)(1). Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Tazewell County
DONALD R. MARTIN, ) No. 22CF637
Defendant-Appellant. )
) Honorable
) Christopher R. Doscotch,
) Judge Presiding.
JUSTICE ZENOFF delivered the judgment of the court.
Justices Lannerd and Knecht concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed defendant’s convictions of predatory criminal sexual
assault of a child and aggravated criminal sexual abuse. The appellate court held:
(1) although the doctrine of curative admissibility did not justify admitting a video
recording of the victims disclosing to their babysitter that they were sexually abused
by defendant, that error was harmless; (2) defendant did not demonstrate either
plain error or ineffective assistance of counsel in connection with the admission of
(a) unredacted video recordings of the victims’ interviews at the Children’s
Advocacy Center or (b) seven clips taken from defendant’s police interview; and
(3) defense counsel did not provide ineffective assistance in connection with
cross-examination, presenting evidence, and closing arguments.
¶2 Following a trial, a jury found defendant guilty of predatory criminal sexual assault
of a child (720 ILCS 5/11-1.40(a)(1) (West 2020)) and two counts of aggravated criminal sexual
abuse (720 ILCS 5/11-1.60(c)(1)(i) (West 2020)) (miscited in the indictment as subsection 11-
1.60(c)(2)(i)). The trial court sentenced defendant to a cumulative total of 20 years in prison.
Defendant appeals, raising multiple purported evidentiary errors and arguing that he received
ineffective assistance of counsel. We affirm.
¶3 I. BACKGROUND
¶4 Count I of the indictment alleged that between January 1, 2020, and June 30, 2022,
defendant committed the offense of predatory criminal sexual assault of a child in that he was older
than 17 and placed his penis in the mouth of J.G., who was younger than 13. Count II alleged that
during the same time frame, defendant committed the offense of aggravated criminal sexual abuse
by fondling the penis of M.G., who was younger than 13. Count III alleged that during the same
time frame, defendant committed the offense of aggravated criminal sexual abuse by having M.G.
touch defendant’s penis.
¶5 A. Section 115-10 Hearing
¶6 Before trial, the State moved to introduce evidence pursuant to section 115-10 of
the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-10 (West 2022)), which provides
a hearsay exception under certain circumstances for out-of-court allegations of sexual assault or
abuse made by victims under 13. Specifically, the State sought to introduce evidence regarding
J.G.’s and M.G.’s disclosures to (1) their babysitter, Elanda Edwards, and (2) a child forensic
interviewer, Sarah Lavin.
¶7 The trial court held an evidentiary hearing on this motion. The evidence showed
that on June 30, 2022, Detective Allison Palmer of the Pekin Police Department received a report
from the Illinois Department of Children and Family Services (DCFS) regarding suspected sexual
abuse of three siblings: J.G., M.G., and I.G. (Ultimately, defendant was not charged with offenses
against I.G., as she did not disclose being sexually abused.) Palmer arranged for J.G. and M.G. to
be interviewed by Lavin at the Children’s Advocacy Center (CAC) on July 6, 2022. On August
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15, 2022, Palmer received from either Edwards or the children’s stepmother a copy of a video
recording in which the children were speaking with Edwards (Edwards recording). The Edwards
recording was made at some point before the CAC interviews, and that recording led to the DCFS
and police investigations in June 2022.
¶8 In connection with the section 115-10 hearing, the trial court reviewed three video
recordings: (1) the Edwards recording, (2) J.G.’s interview at the CAC, and (3) M.G.’s interview
at the CAC.
¶9 1. The Edwards Recording
¶ 10 The version of the Edwards recording in the record on appeal is shorter than the
one the trial court reviewed in connection with the section 115-10 hearing. The version in the
record contains only the portion of the recording that was ultimately introduced at trial, which runs
3 minutes and 56 seconds. (At trial, the jury did not see the other portions of the Edwards recording,
in which Edwards had a discussion with I.G.)
¶ 11 The recording began with J.G. and M.G. sitting on a couch. Half of J.G.’s body was
out of the video frame. M.G. remained sitting throughout the video, but J.G. was sometimes out
of view of the camera. I.G. also appeared on camera at various points but did not say anything.
¶ 12 Edwards began by mentioning “what we talked about” and told the children there
were good secrets and bad secrets. Edwards asked the name of the man they had been talking
about. M.G. responded, “You can just call him Don.” J.G. said, “Donnie.” (At trial, the children
identified defendant as Donnie.) Edwards told the children to be honest. She added that she did
not really get a good understanding when they were talking earlier, as her “heart was hurting so
bad.”
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¶ 13 Edwards asked J.G. to show her on a teddy bear what defendant did to him. Edwards
added that J.G. did not have to be scared and would not get his “head punched in.” J.G. walked
out of view of the camera and said something indiscernible. Edwards asked J.G. what else
defendant did to him that he did not like. Still out of view of the camera, J.G. said something else
that was indiscernible. Edwards asked J.G. whether “all you guys” used to be there when defendant
did that. J.G. responded, “Nope, just me.” M.G. interjected, “Just one time, I think. No, one other
time, yeah.” Edwards asked, “So he never did all y’all together?” M.G. shook his head. Still out
of view of the camera, J.G. then said, “He put his private in my mouth.” Edwards asked what J.G.
told her defendant would do to his head. J.G. responded, “He’ll smash it into a door.” Edwards
asked, “If you tell somebody?” J.G. responded by saying something indiscernible.
¶ 14 Edwards then asked M.G. what happened. Evidently referencing “Donnie,” M.G.
said, “he would spit spitwads at us.” Edwards asked M.G. to demonstrate on a teddy bear the things
he did not like. M.G. explained that I.G. was in her room and J.G. and M.G. were in their room,
and then “he” called one of them. M.G. added, “and then he,” before trailing off. Edwards told
M.G. it was okay and that he did not have to cry and was not in trouble. J.G. interjected that “he”
put them in the corner for no reason. Edwards told M.G. he did not have to cry and that nobody
was going to do anything to him. Pointing to the crotch of the teddy bear and then pushing on the
back of his own head, M.G. said, “he used to do our heads and then went here to our mouth.”
¶ 15 2. J.G.’s CAC Interview
¶ 16 The following is a summary of the salient portions of J.G.’s interview with Lavin
at the CAC on July 6, 2022.
¶ 17 J.G. said he was five years old and was entering first grade. Lavin asked J.G. what
brought everybody here today. J.G. responded that there was “this guy” who beat them, kicked
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their legs, and threatened to slam their father’s head into a door if they told somebody. J.G. added
that this person was mean to them and their father. J.G. said this person would “whoop” them if
they told. Asked who he was talking about, J.G. responded that “Donnie” would do everything bad
to them.
¶ 18 Lavin questioned J.G. using an anatomical diagram of a male body. J.G. circled the
entire back side and said that defendant “whoops” them on the “butt.” Asked whether anything
else ever happened to any other part of his body, J.G. responded in the negative. However, when
asked whether anybody ever made him do anything to any part of their body, J.G. nodded his head
in the affirmative. Referring to a “private” and a “popsicle” while making a gesture indicative of
oral sex on a male, J.G. added, “He makes us do that.” Asked to circle the area of the diagram he
was referencing, J.G. circled the genital area. J.G. nodded his head in the affirmative when Lavin
asked whether defendant made him “do like you do with a popsicle.” Asked what defendant was
doing when this happened, J.G. responded that defendant said he would ground them their whole
lives until they were 100. J.G. said his mother was at work when this happened and that it occurred
in defendant’s room. This happened more than one time, and it was always in defendant’s room.
J.G. said he had seen M.G. have to do “the same thing” to defendant.
¶ 19 Lavin attempted to elicit information as to whether defendant sexually abused other
children. J.G.’s responses were unclear. He seemed to suggest that he had peeked out of a closet
and seen defendant abusing unnamed friends, neighbors, or classmates of J.G. However, asked
how he knew those people, he said he “made them in my mind.”
¶ 20 3. M.G.’s CAC Interview
¶ 21 The following is a summary of the salient portions of M.G.’s interview with Lavin
at the CAC on July 6, 2022.
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¶ 22 M.G. said he was seven years old and entering second grade. His brother, J.G., was
five years old, and his sister, I.G., was three or four. M.G. did not like his mother because she was
mean to them and “whooped” them on the butt with a pan or a belt. M.G. no longer stayed at his
mother’s house.
¶ 23 Pointing to his crotch, M.G. told Lavin that defendant had touched him, his sister,
and his brother in the “privates.” However, M.G. clarified he did not personally see defendant
sexually abuse either J.G. or I.G. M.G. circled the genitals on a diagram of a male body. M.G. said
this touching occurred with Donnie’s hand and felt uncomfortable. The touching was over M.G.’s
clothes, never under. M.G. said that he also had to touch defendant in the same spot with his hand—
under defendant’s clothes but over the underwear. Defendant threatened to smash M.G.’s brain if
he told anybody. M.G. said this happened one time “a long time ago” at a house in Pekin, where
he used to live. He thought he was either in preschool or kindergarten when it happened. M.G. did
not remember in which room of the house the touching occurred. M.G. said he thought his mother
was at work when it happened.
¶ 24 4. Arguments and Rulings Regarding Section 115-10 Statements
¶ 25 Defense counsel initially indicated he “really [didn’t] have any objection” to the
State introducing the recordings of J.G.’s and M.G.’s interviews at the CAC. Counsel conceded
that those interviews where “done in a proper manner” and there was “no bias” on the part of
Lavin. However, defense counsel subsequently noted that I.G. was mentioned during those
interviews, whom defendant had not been charged with abusing. The prosecutor responded that
defense counsel had previously told her he wanted the CAC videos played in their entirety, with
no edits. The trial court recalled that there was no reference in the CAC interviews to I.G. being
molested. The prosecutor responded that there were “questions about it” during the CAC
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interviews but that I.G. did not disclose being sexually abused. The court ruled that it would allow
the CAC interviews to be played, as there was nothing “overly prejudicial” in them. After the court
ruled, defense counsel reiterated he would like to have any mention of I.G. removed from the two
CAC interviews. The court responded that the State was “free to do that if they want to,” but that
based on the court’s memory of the videos, there was nothing prejudicial.
¶ 26 Defense counsel objected to the State introducing the Edwards recording,
essentially arguing this evidence lacked sufficient safeguards of reliability. See 725 ILCS
5/115-10(b)(1) (West 2022) (providing that to admit a child’s hearsay statement, the trial court
must find, inter alia, that “the time, content, and circumstances of the statement provide sufficient
safeguards of reliability”). The trial court denied the State’s motion to introduce evidence
regarding the Edwards recording. Among the court’s concerns were that Edwards asked leading
questions of J.G. and M.G. and the sound quality was poor at times.
¶ 27 B. Juvenile Court Records
¶ 28 Defense counsel indicated he wanted to introduce at trial an August 28, 2020, order
entered in a juvenile court proceeding that prohibited defendant from contacting either J.G. or
M.G. Counsel’s proffered reason for admitting this evidence was that because defendant did not
have any contact with J.G. or M.G. after this order was entered, defendant could not have
committed the charged acts during the majority of the time frame alleged in the indictment
(January 1, 2020, through June 30, 2022). Over the State’s objection that it was improper to
introduce juvenile court records, the trial court allowed defendant to introduce evidence regarding
the August 28, 2020, order.
¶ 29 C. Trial
¶ 30 1. The State’s Case-In-Chief
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¶ 31 a. M.G.
¶ 32 At the time of trial, M.G. was eight years old and in third grade. He lived with his
father, his “mom” (his stepmother), J.G., and I.G. M.G. testified that he previously felt unsafe
when he lived with his “mommy” (his biological mother) in Pekin because of her boyfriend,
Donnie. M.G. identified defendant in court as Donnie. According to M.G., defendant “made me
suck his pee pee,” which is “[a] private.” Defendant’s hand also touched M.G.’s “pee pee” or
“private” under his clothes. However, M.G.’s hand never had to touch any part of defendant’s
body. M.G. testified that defendant touched his “pee pee” when they were alone in his “[m]ommy
and daddy’s room” (presumably, the room M.G.’s mother shared with defendant). Defendant
asked him not to say anything. However, at some point after he lived with defendant, M.G. told
his father and “Aunt Sara.” M.G.’s father and babysitter told M.G. to tell the truth.
¶ 33 On cross-examination, M.G. testified he did not know how many times defendant
touched him. M.G. did not know the time of day, the month, or the year when the abuse occurred.
He recalled that he attended school in Pekin at the time, but he did not know which school. M.G.
did not remember what his house in Pekin looked like, other than that he thought it was blue. He
did not know how long he had lived at the Pekin house. He did not know how many bedrooms that
house had, but he remembered sharing a bedroom with J.G. and I.G. M.G. believed, but did not
know, that his mother was at work when defendant touched him. M.G. did not know where J.G.
and I.G. were when this happened, but he believed they were at home. M.G. believed the abuse
lasted until he was five years old, “[u]ntil my daddy got me, I think” (i.e., until he went to live with
his father). M.G. believed that he was five years old when he told his father and babysitter about
what happened.
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¶ 34 On redirect examination, M.G. testified he believed defendant touched his “pee
pee” one time. M.G. believed that defendant had asked him to go to the bedroom.
¶ 35 b. J.G.
¶ 36 At the time of trial, J.G. was six years old and in first grade. He now lived in
El Paso, Illinois with his “dad and [his] mom” (his stepmother). Donnie, whom he identified in
court as defendant, made him feel unsafe when they lived in Pekin with his mother and siblings.
Specifically, in J.G.’s mother’s bedroom, defendant made J.G. “suck his pee pee,” which is the
“front part” used for going to the bathroom. J.G. was three years old when he lived in a house with
his mother and defendant. According to J.G., he would watch television in his mother’s bedroom
and defendant would lock the door. Defendant told him he was not allowed to tell anyone.
However, J.G. told his father, who told him to tell the truth.
¶ 37 On cross-examination, J.G. testified that he had spoken to the assistant state’s
attorney multiple times before trial. According to J.G., M.G. and I.G. were waiting outside the
door to their mother’s bedroom when the events with defendant occurred. J.G. then testified that
M.G. and I.G. were in the bedroom with him and that they tried to run away but the door was
already locked. J.G. testified that his mother was at work and M.G. and I.G. were standing by the
door, afraid to watch or get near defendant. J.G. recalled that he was three years old and not
attending school when this happened. M.G., however, was attending school. Specifically, on the
day this happened, M.G. came home from school and defendant brought M.G. “into the room.”
This occurred during the daytime.
¶ 38 J.G. further testified on cross-examination that the house in Pekin where this
occurred was blue. He did not know how many bedrooms it had. However, he remembered he
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shared a room with M.G. and I.G. He also remembered there was a closet in that room that could
not be locked.
¶ 39 Also on cross-examination, J.G. testified he did not remember saying during an
interview on July 6, 2022, that defendant did bad things to his classmates. J.G. added, “He didn’t
do anything to our classmates.” Asked “who have you seen that Donnie has touched improperly,”
J.G. responded, “My brother and my sister.” J.G. said he had not seen defendant touch anyone else
inappropriately. J.G. testified that he told his father what had happened “[t]he day after that
happened.” However, through subsequent questioning, it became clear J.G. did not know when he
told his father about the abuse, other than that it was in August of a year he did not recall.
¶ 40 c. Jeremy G.
¶ 41 Jeremy G.—the father of M.G., J.G., and I.G.—testified as follows. Makenna C. is
the mother of the children. Prior to some date in August 2020 that Jeremy did not remember, the
children lived in a couple different places with Makenna and defendant. In August 2020, the three
children came to live with him and his girlfriend full-time. They now lived in El Paso, Illinois.
Since August 2020, the children never lived with defendant.
¶ 42 On cross-examination, in a portion of an answer that was not directly responsive to
the question that was asked, Jeremy mentioned an “abuse case” in August 2020. After a sidebar
conference, and outside the presence of the jury, the trial court instructed Jeremy not to mention
“any physical abuse allegations or why the kids would have been taken into shelter care in August.”
When Jeremy continued his cross-examination, he testified that he obtained custody and
guardianship of his children in August 2020. Since August 2020, Makenna had seen the children,
but Jeremy had not allowed M.G. or J.G. to have physical contact with defendant. Jeremy took
M.G. and J.G. to be interviewed at the CAC and to speak with the assistant state’s attorney.
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¶ 43 d. Lavin
¶ 44 Lavin, a certified forensic interviewer and the executive director of the CAC,
testified about interviewing J.G. and M.G. on July 6, 2022. When the State moved to admit the
recordings of these interviews into evidence, defense counsel said: “I agree to not object, but I
made a earlier [sic] objection. I still hold that one which I told to the Court.” The trial court allowed
the State to play the two CAC interviews in their entirety for the jury.
¶ 45 e. Kevin Pfeifer
¶ 46 Kevin Pfeifer, an employee of DCFS, testified that he was involved with a case
pertaining to J.G. and M.G. in August 2020. Prior to August 2020, and during the beginning of
that month, J.G. and M.G. lived with Makenna and defendant. On August 26, 2020, Pfeifer took
custody of J.G. and M.G., and they went to live with Jeremy. Pfeifer had no information as to
whether defendant had contact with J.G. or M.G. after August 26, 2020.
¶ 47 f. Mark Smith
¶ 48 Officer Mark Smith of the Pekin Police Department testified that on either August
23 or 26, 2020, he assisted DCFS with taking custody of the children at an address on 11th Street.
¶ 49 g. Palmer
¶ 50 Palmer, a detective with the Pekin Police Department, testified she primarily
handled investigations involving child victims and sex crimes. On June 30, 2022, DCFS and the
El Paso Police Department referred to her a case involving J.G. and M.G. disclosing sexual abuse
to their babysitter, including “molestation” and “oral penetration.” Palmer contacted the DCFS
worker and Jeremy to arrange for J.G. and M.G. to be interviewed at the CAC. Palmer observed
the children’s interviews at the CAC on July 6, 2022. She noticed that M.G. was nervous during
his interview, that it was difficult for him to talk about sexual abuse, and that it “affected” him
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when Lavin began to discuss the abuse. Over defense counsel’s objection, Palmer testified that as
a trained child forensic interviewer herself, this was significant to her because the demeanor of a
victim “can show credibility of a statement.” Palmer likewise noted that J.G. seemed nervous and
a little fidgety during his interview, was “very graphic,” and “answer[ed] questions appropriately
when asked about sexual abuse.” After the interviews at the CAC, Palmer canvased J.G.’s and
M.G.’s former neighborhood to follow up on J.G.’s comment that “Donnie” had abused other
children. Palmer was unable to identify any other child who had been abused.
¶ 51 Palmer ascertained that defendant was “Donnie” and was dating the children’s
mother. Defendant agreed to be interviewed at the Pekin police station on September 9, 2022.
Detective Andrew Thompson assisted Palmer with this interview. Palmer testified that defendant
never directly admitted to committing sexual acts against J.G. and M.G.
¶ 52 The full recording of defendant’s police interview was 1 hour and 41 minutes long.
The prosecutor did not attempt to play the entire recording for the jury. During a sidebar, the
prosecutor acknowledged that large portions of this interview were irrelevant and inadmissible,
including discussions about (1) defendant physically abusing J.G., M.G., and I.G., (2) past
molestation in defendant’s home, and (3) defendant’s juvenile adjudication for a child
pornography offense. Thus, the prosecutor sought to play only seven clips from defendant’s
interview. Defense counsel objected to these clips on bases that defendant does not reiterate on
appeal. During the discussions regarding defense counsel’s objections, the prosecutor and the trial
court offered defense counsel the opportunity to admit any additional portions of defendant’s
interview that counsel thought provided context to defendant’s answers in these clips. Defense
counsel requested only that the State lengthen the seventh clip. The court ultimately overruled that
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request because the additional discussion referenced inadmissible evidence and did not provide
context.
¶ 53 When Palmer resumed her testimony, the State played for the jury the seven clips
from defendant’s interview. The first clip was two minutes long. In this clip, Palmer mentioned
that the children were not “making up stuff” and that their allegations were “coming from
memory.” Thompson added: “And I think that they have named you because something happened,
and just to be totally honest with you, okay.” Thompson encouraged defendant to be honest.
Thompson said he thought defendant was a guy who “maybe made a mistake” “expressing love,”
and that “we just need to get past that mistake.” Thompson asked if that was what was going on,
and defendant responded, “Yeah, pretty much.” Thompson then asked defendant to tell him and
Palmer what happened. Defendant then said the only time he was ever around “the kids naked”
was when they showered. He said he stayed fully clothed while washing them.
¶ 54 The second clip was 39 seconds long. In this clip, defendant said that children
sometimes lie. Thompson responded that children do not lie about things like putting penises in
mouths or inappropriate touching, because they do not understand it. Defendant said, “Right.”
Palmer then brought up that defendant’s sister and mother had “experienced this kind of stuff” and
did not lie about it. Defendant responded, “Right.”
¶ 55 The third clip was 4 minutes and 50 seconds long. Palmer began by saying she felt
J.G. and M.G. were being honest because they were consistent in their allegations. Palmer said she
was trying to figure out whether defendant “showed love a little too much and it went too—you
know, one direction.” Defendant responded, “I mean, it probably could have, to be honest with
you.” Thompson asked defendant to tell them exactly what happened with the kids. Before
defendant answered that question, Thompson said, “We know it happened. The kids aren’t lying.”
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Thompson then asked defendant to tell him about the time he touched one of the kids
inappropriately. Defendant said, “I mean, the only time I ever touched them was in the shower.”
Defendant denied touching them outside of the shower. Palmer asked defendant what he meant by
agreeing that he showed love a little too far. Rather than allowing defendant to answer that
question, Thompson and Palmer talked about how children do not lie, while defendant periodically
said, “Right.” Defendant then said he used to roughhouse with the children and take them
everywhere. He said he never touched them inappropriately, “besides from giving them a bath.”
When Thompson asked defendant what he meant by this, defendant said he helped the children
wash. Thompson asked defendant whether he was talking about pulling the children’s foreskin
back to wash it. Defendant responded, “Right.” Thomspon asked defendant whether he would
consider that appropriate or inappropriate. Defendant responded: “I mean to most people,
probably. But to me, I’m just, you know—.” Defendant then said he “pulled it back, and cleaned
it, and then let it go.” Palmer noted that the children were “super duper consistent” that the behavior
happened in a bedroom, not a bathroom. Defendant said he had been told it had “happened in the
living room.” Palmer told defendant that he had received inaccurate information about the
children’s accusations. Defendant questioned whether I.G. was making allegations against him,
too. Palmer explained that I.G. just talked about “getting spanked on the butt.” Defendant admitted
to spanking I.G. Defendant said the only time he was in the children’s bedroom was to get them
dressed and to bed. Defendant said he always stayed in his room, playing video games and
watching television. He said he barely ever left Makenna’s side. He said the only time he was
home alone with the children was when Makenna was at work. Asked what he did when he was
alone with the children, he said he would lie on the couch, smoke cigarettes, and drink soda while
the children watched television, wrestled, or played.
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¶ 56 The fourth clip was 56 seconds. In this clip, Palmer explained that the children “said
the same kind of things over and over again,” but they loved defendant and were not trying to take
him down. Defendant responded that he believed something like this happened, but he did not
“think it came from” him. Thomspon asked, “You don’t think?” Defendant clarified he knew it
did not come from him. Defendant said he was confused why these things were coming up when
he had not seen the children in two years. Thomspon then talked about delayed disclosure among
abuse victims.
¶ 57 The fifth clip was 1 minute and 25 seconds. In this clip, Palmer explained that
defendant had gotten “fifth party information” about the children’s accusations, whereas she knew
the children’s accusations and believed what they said. Defendant said he was “staying with my
story because I’m telling the truth.” He said he was rarely home unless he had to be there to watch
the children while Makenna was at work.
¶ 58 The sixth clip was 36 seconds. In this clip, defendant said he had witnesses who
would attest that he was barely ever home. However, defendant then acknowledged that he had
been home alone with the children when Makenna worked. Palmer told defendant that it was
during those times that the children were saying this happened. Defendant said he did not
“remember this ever happening” and that “if it happened, then I don’t remember it.” Palmer asked
defendant whether he thought he “could have, like, blocked it out.” The clip ended without
defendant answering that question.
¶ 59 The seventh clip was 1 minute and 43 seconds long. In this clip, Palmer talked about
how the children still cared about defendant. As the interview concluded, Thompson thanked
defendant for talking to him and Palmer. Defendant apologized in case he had been stubborn.
Thompson said defendant had not been stubborn. Thompson asked whether defendant had any
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questions before they got him out of there. Defendant asked: “The one—like, okay, say you know.
Say I did do it. Okay. Let’s just say I did it. What happens?” The clip then ended.
¶ 60 Continuing her direct examination, Palmer testified that she reviewed DCFS reports
to determine the location and timeline relating to this case. Palmer testified that J.G. and M.G. had
lived at an address on 11th Street in Pekin with Makenna and defendant. Palmer learned that the
children were removed from that home on August 26, 2020. Palmer had no information that the
children ever had contact with defendant after that date.
¶ 61 On cross-examination, defense counsel questioned Palmer about how she became
involved in the investigation. Palmer explained that J.G. and M.G. made disclosures to Edwards,
who informed Jeremy. That information was then reported to the El Paso Police Department on
June 18, 2022, before ultimately being referred to the Pekin Police Department by DCFS based on
the belief that the events had occurred in Pekin. Presumably referencing the date when J.G. and
M.G. made their disclosures to Edwards, Palmer testified that she believed this all “came to light”
on June 18, 2022. Asked whether she knew what that incident was about, Palmer responded that
the children made an outcry of abuse to Edwards. Counsel followed up, “Well it was something
with a teddy bear; is that correct?” Palmer responded that “[t]he babysitter had used a teddy bear
during her questioning of the children.” Counsel asked, “And that was what her complaint was
about, wasn’t it?” Palmer responded in the affirmative.
¶ 62 On cross-examination, Palmer further testified that after the CAC interviews on
July 6, 2022, she reviewed medical and DCFS records and spoke with Edwards, defendant, and a
DCFS worker. Makenna was unwilling to submit to an interview with Palmer. Palmer
acknowledged that she never identified a specific date or time when the charged conduct occurred.
According to Palmer, in his interview, defendant initially said he had moved in with Makenna and
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the children in June 2020, but he later said that occurred in February 2020. Defendant also told
Palmer that his last contact with the children was on August 26, 2020. Defense counsel questioned
Palmer about why she did not investigate people who were involved in the children’s lives after
August 26, 2020. Palmer explained that she focused her investigation based on the children
accusing defendant and the information that defendant did not see the children after August 26,
2020.
¶ 63 Palmer further testified on cross-examination that she investigated J.G.’s comments
during his interview at the CAC about defendant sexually abusing other friends or classmates.
Palmer canvassed the children’s old neighborhood by going door-to-door to speak with residents
about that. She never identified other children who might have been sexually abused. Palmer
concluded that either families had moved out of the area or J.G. had merely been referencing
imaginary friends in his CAC interview. Palmer acknowledged she did not attempt to question J.G.
about the names of other children defendant supposedly abused, as she was “not trained to bring
back a child’s memory.”
¶ 64 Defense counsel also asked Palmer whether, during the CAC interview, Lavin used
the phrase “ ‘lick it like a ice cream cone’ ” before J.G. used that phrase. Palmer responded that
J.G. “said those words first.” Defense counsel asked, “You certain of that?” Palmer said she was
certain. Counsel asked, “So you’re saying he came up with the words totally himself, the boy did?”
Palmer responded, “He used the word ‘popsicle.’ ”
¶ 65 On redirect examination, the prosecutor questioned Palmer briefly about Edwards:
“Q. [Defense counsel] asked you specifically about disclosures that were
made to Elanda Edwards. Do you recall that?
A. Yes.
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Q. Were you able to speak with Elanda Edwards about the disclosures that
were made to her?
A. Yes.
Q. And any actions [defense counsel] asked you about?
A. Yes.
Q. Were those consistent with your investigation?
A. They were consistent.”
¶ 66 On further cross-examination, defense counsel questioned Palmer as follows:
“Q. Okay. You just said that in talking with the babysitter, her—what she—
information she gave you was consistent; is that correct?
A. That is correct.
Q. What was consistent?
A. The boys disclosed to the babysitter that [defendant] had touched their
penis.
Q. That [defendant] had touched their penis?
A. Yes, had made contact with their penis.
Q. Okay. And did they say how?
A. They—they used a teddy bear and said that he would touch—they used
the teddy bear as, like, a demonstrating model and she asked where on their body
[defendant] would touch and they touched the groin area of the teddy bear.
Q. So that made it consistent, correct?
A. They were consistent—
Q. Is that what you’re referring to?
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A. They were consistent saying who touched where on their bodies.”
¶ 67 At the conclusion of defense counsel’s additional cross-examination of Palmer, the
prosecutor requested permission to publish the Edwards recording to the jury as substantive
evidence because defense counsel had opened the door through his questioning of Palmer. As part
of her argument, the prosecutor recalled (incorrectly) that defense counsel had “mentioned that
there was in fact a video recording of this conversation.” From this incorrect belief, the prosecutor
reasoned that it would be prejudicial to the State not to play the portion of the Edwards recording
where J.G. and M.G. made their disclosures. As her secondary request, the prosecutor asked for
the defense to be barred from arguing “anything about any missing evidence about this
conversation or the video not being presented to the jury.”
¶ 68 In response to the prosecution’s requests, defense counsel maintained that he had
merely followed up with Palmer after the State questioned her about the children’s disclosures to
Edwards being “consistent.” Defense counsel further challenged the State’s ability to lay the
foundation for admitting the Edwards recording into evidence. Defense counsel represented that
he would not argue to the jury that the State failed to present evidence.
¶ 69 The trial court mentioned multiple times that defense counsel had used the word
“video” when questioning Edwards. The court ruled that, subject to the State laying a foundation,
the defense had opened the door to the State playing for the jury 3 minutes and 56 seconds of the
Edwards video. (The prosecutor agreed not to play the remaining approximately six minutes of the
video, which apparently included Edwards questioning I.G. about abuse.) However, the court ruled
this evidence would be admitted “for the limited purpose of explaining the officer’s course of
conduct in [the] investigation.”
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¶ 70 On further redirect examination, Palmer testified as follows to lay the foundation
for admitting the Edwards recording. Palmer was aware of a “video recording related to this outcry
incident.” (This was the first time the jury heard that the children’s disclosures to Edwards had
been recorded.) Palmer became aware of the Edwards recording because the initial police report
she received “noted that the outcry witness was the babysitter who relayed that information to the
parents.” As part of her investigation, Palmer then spoke with Edwards. Edwards told Palmer that,
while speaking with the children, she “realized she should probably record this and had set up her
cellphone to record the kids.” Edwards told Palmer that she “sent that recording to the children’s
stepmother” the same day it was recorded, on June 17, 2020. Palmer added, “It’s noted in the
El Paso Police Department [report] that according to Janene, the stepmother, that the video was
taken when she went to go pick up the kids on the 17th.” Palmer received this video through a
secured link using the “Axon evidence system.” Palmer identified People’s exhibit No. 8 (later
corrected to People’s exhibit No. 7) as “a disc containing the video from the babysitter.” Palmer
testified that the contents of this exhibit “fairly and accurately depict the video recording that [she]
received pursuant to this investigation.” She added that it was the “same video content” she had
relied on during her investigation.
¶ 71 The trial court allowed the State to admit this exhibit into evidence and gave the
jury the following limiting instruction:
“This video is being admitted for the limited purpose of explaining the officer’s
course of conducts [sic] in the steps that she has taken in—in relying on this video
in her investigation and it’s not to be considered by you for any other purpose in
this case, okay? So just to consider it for the limited purpose of the officer’s course
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of conduct, the steps she’s taken in her investigation in relying upon this video, all
right?”
The State then played the 3 minute and 56 version of the Edwards recording for the jury. Palmer
identified J.G. and M.G. on this video. Palmer testified that this accurately reflected the recording
she received.
¶ 72 On further cross-examination, Palmer testified that she did not know the specific
date when she received the Edwards recording.
¶ 73 h. Thompson
¶ 74 Thompson testified that he is a detective with the Pekin Police Department. When
interviewing a suspect, he typically tries to build rapport and determine which tactics to use. Some
tactics he uses when interviewing suspects in child sexual abuse cases include blaming or shaming
the victim, minimizing the allegations, and asking narrative questions to elicit more detailed
responses. Thompson testified that he and Palmer interviewed defendant using such techniques.
¶ 75 On cross-examination, Thompson testified that he did not interview anyone other
than defendant in connection with this case. Palmer was the lead detective who asked defendant
most of the questions, so Thompson did not believe it was important to question defendant about
the dates and times when the allegations occurred.
¶ 76 2. Defendant’s Case-In-Chief
¶ 77 Defendant presented five witnesses on his own behalf.
¶ 78 a. Christy Harris
¶ 79 Defendant’s first witness was his mother, Christy Harris. She testified that she met
Makenna, M.G., J.G., and I.G. in June 2019. Makenna and the children lived in an apartment across
the hall from where Harris lived with her husband. On December 17, 2019, defendant moved into
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Harris’s apartment and met Makenna. Defendant started dating Makenna on March 4, 2020, and
he met Makenna’s children for the first time on March 8, 2020. Shortly thereafter, defendant stayed
at Makenna’s apartment until they had a falling out later that month. Defendant and Makenna got
back together on April 1, 2020, and defendant stayed at Makenna’s apartment almost that whole
month. Harris saw Makenna’s children almost every day and would babysit them if they were sick
and Makenna was working. Harris recalled that after April 1, 2020, she babysat the children only
“four times when they were sick.” This was from 8 a.m. until 4:30 or 5 p.m., when “[m]om was at
work.” Other than day care, Harris was the only babysitter for the children. However, Harris later
said that her husband was the children’s backup babysitter.
¶ 80 Harris testified that during May 2020, defendant alternated time between
Makenna’s apartment and Harris’s apartment. Without further explanation, Harris then testified
that defendant was “no longer there” (at this apartment complex) for “the remainder of May.”
¶ 81 On June 15, 2020, defendant and Makenna moved to a blue house on 11th Street.
Harris went to that house four or five times each week to spend time with defendant and the
children. Harris would sometimes spend nights there. In July 2020, Harris had a lot of contact with
defendant, but not with Makenna’s children.
¶ 82 In August 2020, Harris babysat Makenna’s children once when they were sick, and
Harris saw the children three times each week. Harris was aware that defendant babysat Makenna’s
children on August 24, 25, and 26, 2020, while Makenna was at work. Those were the only times
Harris was ever aware that defendant was alone with Makenna’s children. According to Harris,
defendant did not feel very comfortable watching the children alone, so he Facetimed Harris for
three hours on August 24, two and a half hours on August 25, and five hours on August 26. Harris
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testified that there were no times on those three dates that defendant was with the children and was
not Facetiming her.
¶ 83 On cross-examination, Harris testified she was not aware that defendant (1) told the
police he moved in with Makenna in February 2020, (2) told the police he had been alone with
Makenna’s children while babysitting them when Makenna worked, and (3) neglected to tell the
police that he communicated with Harris while babysitting the children. Harris acknowledged that
the house in Pekin on 11th Street was not close to her apartment and that she was not always
present at the 11th Street residence.
¶ 84 b. Makenna
¶ 85 Makenna testified that she previously lived with her children in an apartment across
the hall from Harris. Makenna met defendant on December 17, 2019. In the second week of
February 2020, she exchanged phone numbers with defendant and started to see him more
frequently. At that time, M.G. was five, J.G. was almost three, and I.G. was almost two. Makenna
introduced her children to defendant in February 2020. Makenna and defendant started dating on
March 4, 2020. Defendant was not alone with the children in either February or March 2020.
Defendant continued to live at Harris’s apartment, and Makenna and defendant did not move in
together until June.
¶ 86 On June 15, 2020, Makenna, her children, and defendant moved into a
two-bedroom, blue house on 11th Street in Pekin. Makenna and defendant shared one bedroom,
which had a closet door that was broken and off its hinges. The other bedroom was too small and
hot for the children, so they slept in a living room, which had no closets. There were no locks in
this house, except for on the front and back door. Makenna was off work between June 15 and
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June 29, 2020, because her car was broken. Makenna denied leaving her children with defendant
in June 2020.
¶ 87 Makenna testified that the children started day care on June 29, 2020. Makenna and
defendant would take the children to day care, and she would pick them up when she got off work.
Between June 30 and August 24, 2020, the only time defendant was alone with her children was
if they needed to be picked up from day care because they were sick; defendant would then pick
up the children and drop them off at Harris’s house. On Friday, August 21, 2020, M.G. started
kindergarten. The next week, M.G. was at school on August 24 and 26 but had at-home learning
on August 25. Makenna worked the week of August 24, so defendant took care of the children. On
August 26, DCFS removed the children from Makenna’s home, and the children went to live with
Jeremy. Makenna identified defense exhibit No.1 as a copy of a court order entered on August 28,
2020, directing defendant not to have contact with her children. According to Makenna, defendant
had no contact with her children since August 26, 2020.
¶ 88 On cross-examination, asked whether she was still dating defendant, Makenna
responded that it was “a little hard to do while he’s in jail.” She acknowledged that she loved
defendant and had two children with him. Makenna testified she was not aware that defendant told
the police he moved in with her in February 2020. She said that if defendant had told the police he
bathed the children without her being present, that would be untrue. Makenna testified that she
started a job in March 2019 and she worked there continuously through “the time period we’re
talking about.” Her children were enrolled in day care from May 2019 until COVID-19 started.
The day care temporarily shut down, and the children returned on June 29, 2020. Makenna further
testified that defendant moved out of the residence on 11th Street for “[p]retty well all” of July
2020, as she and defendant took some time to work on themselves.
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¶ 89 c. Alice C.
¶ 90 Alice C., who is Makenna’s mother, testified that she and her husband sometimes
babysat Makenna’s children. Alice was not aware of “the family” having any babysitters during
July and August 2020. In July 2020, Alice would “pop in” at the residence on 11th Street during
her lunch or afternoon breaks, and she would see Makenna, the children, and defendant. Makenna
was always home when Alice stopped by. According to Alice, on August 24, 2020, Makenna,
Makenna’s children, and defendant went over to Alice’s house on the lake and were there almost
all day. According to Alice, DCFS took custody of the children on August 26, 2020.
¶ 91 On cross-examination, Alice testified that Makenna had been in a relationship with
defendant since March 2020. Alice never stayed overnight at the house on 11th Street, and she was
not there every day.
¶ 92 d. David C.
¶ 93 David C., who is Makenna’s father, testified that Makenna and defendant started
dating in March 2020. After defendant and Makenna moved to the residence on 11th Street on
June 15, 2020, David had weekly contact with them. David never saw the children alone with
defendant. David testified that defendant, Makenna, and Makenna’s children were at David’s
house on the lake on August 26, 2020.
¶ 94 On cross-examination, David testified he was not aware that defendant told the
police he moved in with Makenna in February 2020 and that he would be left alone with
Makenna’s children. David never lived at the 11th Street residence or spent a night there.
¶ 95 e. Defendant
¶ 96 Defendant testified that he met Makenna on December 17, 2019. In January 2020,
he lived with his grandmother. On February 20, 2020, he moved into an apartment with his mother
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and stepfather. He started dating Makenna on March 4, 2020, and he met her children sometime
that month. Around March 8, 2020, defendant started staying with Makenna and her children. In
April 2020, he continued to reside with Makenna, and she became pregnant with his child.
Makenna was working at the time, and Harris would take care of Makenna’s children if they were
not in day care. Defendant denied being alone with Makenna’s children in March, April, or May
2020.
¶ 97 Defendant testified that on June 4, 2020, he got “kicked off the property” where
Harris and Makenna had apartments. Nevertheless, defendant took Makenna to work and
accompanied her when taking the children to day care. On June 15, 2020, defendant, Makenna,
and Makenna’s children moved into a blue, two-bedroom house on 11th Street in Pekin. Defendant
and Makenna shared the larger bedroom. Makenna’s children originally stayed in the smaller
bedroom but then moved to an enclosed porch. Neither of the bedrooms in the house had locks.
His room had a closet door that was off its hinges.
¶ 98 Defendant testified that in July 2020, he never babysat J.G. and M.G. alone.
Defendant did not think that Makenna worked that month, as they were without a functioning car
for two weeks. Makenna returned to work once they got the car fixed. J.G. and M.G. continued
day care up until August 21, 2020, when M.G. started kindergarten. During that time, defendant
was present “on and off” at the 11th Street residence and did not stay there every night.
¶ 99 Defendant claimed that the only times he was ever alone with J.G. and M.G. were
when he babysat them on August 24, 25, and 26, 2020. Specifically, on August 24, 2020, he was
alone with the children “[f]rom 8:00 until 5:00” while Makenna worked. Defendant claimed he
was Facetiming his mother and father while babysitting. Asked how long he Facetimed, he
responded, “Normally almost the whole time I’m babysitting because I don’t feel comfortable
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watching kids alone.” Defendant was never alone with the children during bathtime, though he
assisted Makenna with bathing them. On August 25, 2020, Makenna worked half a day, and
defendant again babysat the children while Facetiming his mother and father. Asked how often he
called or Facetimed his mother, he responded: “Almost every time that I am babysitting or
through—you know, almost every single day to be more specific.” On August 26, 2020, defendant
was alone with J.G. and M.G. during the morning. He was Facetiming with his mother and father
when DCFS arrived. That was the last day he saw the children.
¶ 100 Defendant testified that M.G. was attending school in late August 2020.
Specifically, M.G. was “at school on the 24th, at home on the 25th, and at school the 26th.”
Defendant denied committing the charged offenses.
¶ 101 On cross-examination, defendant testified he was born in December 1999. He
denied telling the police that he moved in with Makenna in February 2020. He acknowledged that
he told the police he would babysit Makenna’s children alone when she was at work. He also
acknowledged failing to tell the police that he only watched the children on three occasions and
that he Facetimed Harris during those times. Defendant acknowledged that Makenna’s children
missed 11 days of day care between early July and mid-August 2020. Defendant testified that the
children stayed with Harris on those days.
¶ 102 3. Rebuttal
¶ 103 The State called Palmer as a rebuttal witness. She testified that during his police
interview, defendant said he moved into the 11th Street residence with Makenna in February 2020.
The State played the portion of the interview where defendant made that claim.
¶ 104 D. Verdict, Posttrial Motion, Sentencing, and Appeal
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¶ 105 The jury found defendant guilty on all three counts. The trial court denied
defendant’s posttrial motion and sentenced him to a cumulative total of 20 years in prison.
Defendant timely appealed.
¶ 106 II. ANALYSIS
¶ 107 On appeal, defendant argues the trial court erroneously admitted into evidence
(1) the Edwards recording, (2) unredacted versions of J.G.’s and M.G.’s CAC interviews, and
(3) seven clips from defendant’s police interview. Defendant also argues that his counsel rendered
ineffective assistance by employing an unsound trial strategy throughout the proceedings.
¶ 108 A. The Edwards Recording
¶ 109 Defendant first argues the trial court improperly admitted the Edwards recording to
show the course of the police investigation. As part of this argument, defendant maintains the State
failed to lay a proper foundation to admit the recording. Moreover, defendant contends the
Edwards recording was “not at all necessary to explain the course of Palmer’s investigation,” as
Palmer obtained that recording more than a month after she observed J.G.’s and M.G.’s interviews
at the CAC. Finally, defendant asserts that “the manner in which the [Edwards recording] was
created rendered the statements therein unreliable.” Defendant emphasizes that Edwards was not
trained to interview children, she used suggestive language while interviewing the children, and
J.G.’s disclosure was “impossible to see and hard to hear.”
¶ 110 The State responds that the trial court properly determined the Edwards recording
was admissible under the doctrine of curative admissibility because defense counsel opened the
door during his questioning of Palmer. The State further argues that Palmer laid a proper
foundation for admitting the Edwards recording. According to the State, any prejudice in admitting
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this recording was cured by the court giving the jury a limiting instruction. The State also submits
that any error was harmless.
¶ 111 In his reply brief, defendant argues that the Edwards recording was not admissible
under the doctrine of curative admissibility, as his counsel’s questioning of Palmer “did not create
any unfavorable inferences for the State.”
¶ 112 Pursuant to the doctrine of curative admissibility, if defense counsel’s
cross-examination of a witness opens the door with respect to a particular subject, “ ‘the State on
redirect examination may question the witness to clarify or explain the subject brought out during,
or remove or correct any unfavorable inferences left by, the defendant’s cross-examination, even
if this elicits evidence that would not be proper or admissible.’ ” People v. Hinthorn, 2019 IL App
(4th) 160818, ¶ 71 (quoting People v. Mandarino, 2013 IL App (1st) 111772, ¶ 29). “ ‘The
doctrine is protective, and only shields a party from unduly prejudicial inferences raised by the
other side.’ ” Hinthorn, 2019 IL App (4th) 160818, ¶ 71 (quoting Mandarino, 2013 IL App (1st)
111772, ¶ 29). Ruling on a request to admit evidence pursuant to the doctrine of curative
admissibility requires the trial court to balance “ ‘the need to rebut the inference raised against the
risk of unfair prejudice that would be posed by the introduction of the rebutting evidence.’ ”
Hinthorn, 2019 IL App (4th) 160818, ¶ 74 (quoting Michael H. Graham, Graham’s Handbook of
Illinois Evidence § 103.4, at 16 (10th ed. 2010)). We review the trial court’s decision to allow
curative evidence for an abuse of discretion. Hinthorn, 2019 IL App (4th) 160818, ¶ 74.
¶ 113 We hold that the trial court abused its discretion by allowing the State to play the
previously barred Edwards recording pursuant to the doctrine of curative admissibility. The court
mentioned multiple times that defense counsel used the word “video” when cross-examining
Palmer. However, as defendant correctly notes in his reply brief, “[a]t no point did defense counsel
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use the word ‘video’ or suggest that there was a recording of the outcry that the prosecution was
hiding from the jury.” Thus, the court’s ruling appears to be premised in part on a mistaken
recollection of the evidence.
¶ 114 Moreover, it was the State that elicited testimony from Palmer on redirect
examination insinuating that J.G.’s and M.G.’s disclosures to Edwards were “consistent” with their
subsequent disclosures. Defense counsel merely followed up on that point. In response to defense
counsel’s questions, Palmer testified that J.G. and M.G. were consistent as to who touched them
and where. Thus, before the State requested to play the Edwards recording, the jury did not know
there was a video recording of the disclosures made to Edwards but knew that those disclosures
were consistent with later ones. Defense counsel raised no unfair inference that the State needed
to rebut by introducing the previously barred Edwards video. Importantly, “the doctrine of curative
admissibility is not a panacea; it does not permit a party to introduce inadmissible evidence merely
because the opponent brought out some evidence on the same subject.” People v. Manning, 182
Ill. 2d 193, 216 (1998). Rather, the rule “goes only as far as is necessary to shield a party from
adverse inferences.” Manning, 182 Ill. 2d at 216-17.
¶ 115 Moreover, there was no need to admit the Edwards recording into evidence to
explain the course of the police investigation. Apparently, the trial court wanted to avoid admitting
hearsay evidence for substantive purposes. However, the hearsay exception the court invoked
requires a police officer to testify based on personal knowledge that he or she took some action
after receiving information from a third party. People v. Peoples, 377 Ill. App. 3d 978, 984 (2007).
Palmer had no personal knowledge of the statements made on the Edwards recording and identified
no course of action she took that was specifically based on the information in this recording. Under
these circumstances, it is not clear why the court believed this hearsay exception applied or why it
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had any connection to the doctrine of curative admissibility. The jury did not need to view the
Edwards recording to understand the course of the police investigation.
¶ 116 The State also failed to lay a proper foundation to admit the Edwards recording into
evidence. At the section 115-10 hearing, the prosecutor conceded that Edwards and the children’s
stepmother would be “necessary” foundational witnesses for the Edwards recording. At trial, the
State attempted to lay the foundation for this recording through Palmer, who merely testified that
she received this recording during her investigation and that she recognized J.G. and M.G. Palmer
did not personally witness the events depicted on the Edwards recording, so she could not testify
that the recording truly and accurately depicted events that occurred. Thus, Palmer did not lay the
foundation under the traditional method for authenticating a video recording. See People v. Smith,
321 Ill. App. 3d 669, 675 (2001) (explaining that a party who has personal knowledge of a video
recording that has accompanying audio may authenticate this evidence by verifying its accuracy).
The State also did not lay a foundation to admit the Edwards recording under the “silent witness”
theory, which provides a mechanism for a party to authenticate video evidence where no witness
personally observed the events depicted on the recording. See People v. Taylor, 2011 IL 110067,
¶ 35 (identifying factors to consider when determining whether to allow a party to authenticate a
recording by demonstrating the accuracy and reliability of the process that produced it). Notably,
Palmer had no personal knowledge of when or where this recording was made, and she had no
way of knowing whether the recording had been edited or manipulated before she received it from
a third party.
¶ 117 The next question is whether the error in admitting the Edwards recording was
harmless. In their briefs, the parties cite some cases addressing harmless error in the context of
constitutional violations. However, this was a mere evidentiary error, and a different standard
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applies where an error is not of constitutional magnitude. “A nonconstitutional evidentiary error
is harmless if there is no reasonable probability that the jury would have acquitted the defendant
absent the error.” People v. Forrest, 2015 IL App (4th) 130621, ¶ 57. For the following reasons,
we hold that the error was harmless.
¶ 118 The evidence against defendant was strong. J.G. and M.G. described defendant
committing sexual acts against them that children their ages would be unlikely to understand, let
alone fabricate. There was no indication that they were prompted by an adult to accuse defendant
falsely.
¶ 119 By contrast, there were multiple inconsistencies in the defense. For example, the
defense attempted to establish that defendant was only alone with the children on three occasions
when Makenna was working and that defendant was Facetiming his mother the whole time.
However, defendant testified he was alone with the children “[f]rom 8:00 until 5:00” on August
24, 2020, whereas his mother testified that they Facetimed for only three hours that day. There was
a similar discrepancy with respect to August 25, 2020, as defendant testified that Makenna worked
“half a day,” whereas defendant’s mother said they Facetimed for two and a half hours. Defendant
also neglected to mention during his police interview that he was only ever alone with the children
on three dates or that he Facetimed his mother the entire time. The testimony of Makenna’s parents
further undermined the defense, as they claimed that Makenna, defendant, and the children were
at a lake house on either August 24 or 26, 2020. We also note that the defense witnesses were not
entirely consistent with respect to the dates and months that defendant and Makenna lived together.
¶ 120 There was another major weakness in the defense. Defendant acknowledged that
J.G. and M.G. missed day care 11 times in July and August 2020—a period when Makenna
testified she was working. Although defendant claimed his mother babysat the children on those
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days, defendant’s mother testified that she (1) babysat the children only four times after April 1,
2020, (2) did not have very much contact with the children in July 2020, and (3) babysat the
children only once in August 2020.
¶ 121 Moreover, although defendant never expressly confessed to the charges, he made
numerous questionable comments during his police interview. Defendant answered, “Yeah, pretty
much,” when Thompson asked him whether he “maybe made a mistake” “expressing love.” When
Palmer said she was trying to figure out whether defendant “showed love a little too much and it
went too—you know, one direction,” defendant responded, “I mean, it probably could have, to be
honest with you.” When Thompson asked defendant to tell him about the time he touched one of
the kids inappropriately, defendant responded, “I mean, the only time I ever touched them was in
the shower.” Defendant also said he never touched the children inappropriately, “besides from
giving them a bath.” Defendant said he did not “think” he was the person who sexually abused
J.G. and M.G., but he later changed his answer to state he knew he did not abuse them. At the end
of the interview, defendant asked the police: “Say I did do it. Okay. Let’s just say I did it. What
happens?”
¶ 122 Aside from the strength of the evidence against defendant, the inconsistencies in
the defense, and defendant’s suspicious statements during his police interview, we also consider
that J.G.’s disclosure of sexual abuse on the Edwards recording occurred out of view of the camera
and was difficult to hear. The fact that the jury was unable to hear and see the entirety of the
children’s disclosures reduced the prejudicial effect of the Edwards recording. Moreover, Palmer
had already testified that the disclosures to Edwards were consistent with the children’s subsequent
disclosures. See People v. Stull, 2014 IL App (4th) 120704, ¶ 105 (explaining that the erroneous
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admission of prior consistent statements “should rarely result in any meaningful prejudice to a
defendant”).
¶ 123 Finally, any prejudicial impact of the Edwards recording was also diminished
because the trial court instructed the jury to consider this evidence only for the limited purpose of
explaining the course of the police investigation. See Hinthorn, 2019 IL App (4th) 160818, ¶ 86
(“By limiting the questions asked and by instructing the jury on the limited purpose of the
testimony, [the trial judge] limited any prejudice the testimony could have had.”). We presume
that the jury followed the court’s instruction and did not consider the statements on the Edwards
recording as substantive evidence. See People v. Sangster, 2014 IL App (1st) 113457, ¶ 78
(presuming that the jury followed a limiting instruction).
¶ 124 Accordingly, although the doctrine of curative admissibility did not justify
admitting the Edwards recording into evidence, the error was harmless.
¶ 125 B. Challenges to the CAC Interviews
¶ 126 Defendant next contends the trial court erred in allowing the jury to view the CAC
interviews in their entirety, “where the interviews contained several statements alleging highly
prejudicial, uncharged other bad acts.” Defendant focuses on (1) J.G.’s comments about seeing
defendant sexually abuse other neighborhood children or classmates and (2) M.G.’s comments
about defendant sexually abusing I.G. Defendant argues that these portions of the CAC interviews
were inadmissible and unreliable. Defendant asks us to review this issue either pursuant to the first
prong of the plain-error doctrine or for ineffective assistance of counsel.
¶ 127 The State responds that the trial court properly admitted the entirety of the CAC
interviews pursuant to section 115-10 of the Code (725 ILCS 5/115-10 (West 2022)). Without any
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elaboration, the State also references section 115-7.3 of the Code (725 ILCS 5/115-7.3 (West
2022)), which authorizes other-crimes evidence for propensity purposes in certain circumstances.
¶ 128 To preserve an issue for appeal, a defendant must object during trial and raise the
issue again in a posttrial motion. People v. Jackson, 2022 IL 127256, ¶ 15. Failure to do so results
in forfeiture of the issue. Jackson, 2022 IL 127256, ¶ 15. The plain-error doctrine is “a narrow
exception to forfeiture principles.” Jackson, 2022 IL 127256, ¶ 18. To obtain relief pursuant to this
doctrine, a defendant must demonstrate 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.” People v. Moon, 2022 IL 125959, ¶ 20.
¶ 129 Typically, the first step in a plain-error analysis is to determine whether a clear or
obvious error occurred. Moon, 2022 IL 125959, ¶ 22. It is not sufficient that a defendant identifies
an arguable error; rather, “the error has to just about leap off the pages of the record.” People v.
Manskey, 2016 IL App (4th) 140440, ¶ 82. Here, defendant challenges portions of J.G.’s and
M.G.’s CAC interviews on two bases: (1) certain statements fell outside the scope of section
115-10 because they alleged defendant committed unrelated and uncharged crimes and (2) these
statements were unreliable. For the following reasons, we hold that the trial court did not commit
a clear or obvious error in allowing the jury to view the entirety of J.G.’s and M.G.’s CAC
interviews.
¶ 130 We begin with defendant’s arguments about the scope of section 115-10 of the
Code. “[W]hether a child declarant’s statements about the defendant’s acts upon another child are
admissible under section 115-10 of the Code depends upon the particular circumstances of a given
case.” People v. Boling, 2014 IL App (4th) 120634, ¶ 93. The statute allows the State to introduce
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out-of-court statements by a young victim “describing any complaint of such act or matter or detail
pertaining to any act which is an element of an offense which is the subject of a prosecution for a
sexual or physical act against that victim.” (Emphasis added.) 725 ILCS 5/115-10(a)(2) (West
2022). Thus, to come within the scope of section 115-10, a victim’s allegations about uncharged
conduct or acts committed against a different child must describe a detail pertaining to a charged
offense involving the victim.
¶ 131 Cases have “broadly construed” what it means for uncharged criminal conduct to
pertain to a charged offense. Michael H. Graham, Graham’s Handbook of Illinois Evidence
§ 803.25, at 1074 (2024 ed.). Factors a court considers include
“ ‘(1) the relationship of the declarant to the child upon whom the witnessed sexual
act is perpetrated; (2) the proximity of such act—in time and place—to the act
allegedly performed upon the declarant; (3) the similarity of the two acts; and
(4) the existence of a common perpetrator.’ ” Boling, 2014 IL App (4th) 120634,
¶ 93 (quoting People v. Peck, 285 Ill. App 3d 14, 17 (1996)).
¶ 132 In Boling, this court held that the victim’s statement implying that the defendant
sexually abused her cousin was admissible pursuant to section 115-10 of the Code, where the
incident purportedly occurred in the same location and during the same time period as the victim’s
abuse. Boling, 2014 IL App (4th) 120634, ¶¶ 94-95. Likewise, in People v. Embry, 249 Ill. App.
3d 750, 763 (1993), this court held that one victim’s hearsay statement about seeing the other
victim being abused was admissible because it was a detail pertaining to the offense perpetrated
against the declarant.
¶ 133 Defendant does not mention the factors identified in Boling, let alone present an
argument with respect to how those factors apply here. Rather, defendant cites two cases where
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reviewing courts held that allegations regarding uncharged criminal conduct fell outside the scope
of section 115-10. See People v. Kinnett, 287 Ill. App. 3d 709, 716-17 (1997) (holding that where
the charging instrument alleged the defendant committed acts of sexual conduct at a trailer while
camping on July 4, 1995, the trial court acted within its discretion by excluding the victim’s
hearsay statements accusing the defendant of committing other sexual acts against him on other
dates and at different locations); People v. Anderson, 225 Ill. App. 3d 636, 650-51 (1992) (holding
that where the charging instrument alleged a single instance of sexual assault occurring in April
1990, section 115-10 did not authorize the State to introduce the victim’s hearsay statements
accusing the defendant of other criminal conduct spanning a two-year period). However, Kinnett
and Anderson are factually distinguishable because the indictment here alleged a 30-month time
frame in which the charged abused occurred. We note that the reviewing court in Kinnett
distinguished its facts from other cases where “the State did not specify the date or location of the
alleged incidents.” Kinnett, 287 Ill. App. 3d at 716.
¶ 134 Under the plain-error doctrine, “[t]he defendant has the burden of persuading the
court to excuse his forfeiture.” Jackson, 2022 IL 127256, ¶ 19. We hold that defendant has not
demonstrated that a clear or obvious error occurred with respect to J.G.’s and M.G.’s statements
exceeding the scope of section 115-10. Again, plain error must “just about leap off the pages of
the record,” and a defendant must do more than identify an arguable error. Manskey, 2016 IL App
(4th) 140440, ¶ 82.
¶ 135 Defendant also challenges the reliability of J.G.’s and M.G.’s allegations in the
CAC interviews regarding defendant abusing other victims. In assessing reliability, a trial court
considers “the totality of the circumstances surrounding the making of the statements at issue.”
Stull, 2014 IL App (4th) 120704, ¶ 85. Notably, defendant’s trial counsel conceded the overall
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reliability of the CAC interviews, as the interviewer was a trained professional. On appeal,
defendant likewise does not challenge the overall reliability of the CAC interviews.
¶ 136 Nevertheless, defendant notes that Palmer testified at trial that J.G. might have been
referencing imaginary friends rather than actual people when he mentioned in his CAC interview
that defendant abused other children from the neighborhood or classmates. However, in reviewing
a decision to admit evidence pursuant to section 115-10 of the Code, “we do not focus on the
evidence presented at trial, but instead, only on the evidence presented at the pretrial hearing
concerning the reliability of the victim’s hearsay statements.” Stull, 2014 IL App (4th) 120704,
¶ 85. Thus, Palmer’s testimony at trial is not a basis for challenging the trial court’s reliability
determination made at the pretrial hearing.
¶ 137 Defendant also notes that the trial court knew at the pretrial section 115-10 hearing
that I.G. did not disclose being sexually abused. Thus, defendant reasons, M.G.’s references to I.G.
being sexually abused were unreliable. However, we note that M.G. said during his interview at
the CAC on July 6, 2022, that I.G. was three or four years old, which means I.G. would have been
one or two years old when she last saw defendant in August 2020. Given I.G.’s extremely young
age, her failure to disclose being sexually abused does not inherently undermine the reliability of
M.G.’s statement that defendant sexually abused her. Defendant has not demonstrated that the trial
court committed a clear or obvious error in determining that the entirety of J.G.’s and M.G.’s CAC
interviews were reliable for purposes of section 115-10 of the Code. Accordingly, defendant is not
entitled to relief pursuant to the plain-error doctrine.
¶ 138 Defendant alternatively argues that his counsel was ineffective for failing to
“challenge and preserve the issue of the prejudicial other crimes evidence.” To obtain relief based
on ineffective assistance of counsel, a defendant must show both that trial counsel performed
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deficiently and that such deficiency prejudiced the defense. Strickland v. Washington, 466 U.S.
668, 687 (1984).
¶ 139 As defendant has not shown that a clear or obvious error occurred, his
ineffective-assistance claim fails. See People v. Gilker, 2023 IL App (4th) 220914, ¶ 78 (noting
that unless a clear or obvious error occurred, a defendant may not obtain relief pursuant to the
plain-error doctrine or under an alternative claim of ineffective assistance of counsel). We further
emphasize that defendant has not demonstrated that he was prejudiced by the jury viewing J.G.’s
and M.G.’s full CAC interviews. Prejudice means “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S.
at 694. “A reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694. Defendant proposes that “[t]he possibility that this hearsay
other crimes evidence ultimately convinced the jury to find [him] guilty because they thought he
was a bad person deserving of punishment cannot be discounted.” The record does not support that
conclusion. The jury learned that (1) I.G. never disclosed being sexually abused by defendant,
(2) M.G. never claimed to have personally seen defendant sexually abuse I.G., (3) the police were
unable to corroborate J.G.’s claim in his CAC interview that defendant sexually abused other
neighborhood children or classmates, (4) Palmer believed J.G. might have been referencing
imaginary friends when he mentioned neighborhood children, and (5) J.G. denied during his
testimony that defendant sexually abused his classmates. In his closing argument, defense counsel
argued that J.G.’s false accusations about defendant abusing other individuals meant he was lying
or mistaken about his own abuse. Under these circumstances, we discern no reasonable probability
that the jury convicted defendant based on a belief that he committed uncharged crimes and
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deserved to be punished. In other words, the result of trial would not have been different had the
trial court redacted small portions of J.G.’s and M.G.’s CAC interviews.
¶ 140 We note that the State mentions in its brief section 115-7.3 of the Code (725 ILCS
5/115-7.3 (West 2022)), which allows prior bad acts to be used as propensity evidence in sexual
abuse cases under certain circumstances. The prosecutor acknowledged before trial that she was
not requesting to present evidence of I.G.’s sexual abuse pursuant to section 115-7.3. In her closing
argument, the prosecutor did not argue that defendant’s uncharged acts of abuse showed a
propensity to commit similar acts. Thus, there is no issue for us to review with respect to section
115-7.3.
¶ 141 C. Challenges to the Clips of Defendant’s Police Interview
¶ 142 Defendant further challenges the admissibility of some portions of his police
interview, which he contends were irrelevant and highly prejudicial. Defendant first proposes that
“a large portion of many of the clips” the jury saw included statements that police officers believed
the accusations made by J.G. and M.G. According to defendant, such commentary was “improper
because a witness is not permitted to comment on the veracity of another witness’s credibility.”
Defendant next submits that the third clip was improper because it contained discussions about
(1) defendant bathing J.G. and M.G. and (2) uncharged abuse against I.G. Defendant finally
contends that the sixth clip “was edited in such a way that it misrepresented” his actual statement.
Although defendant acknowledges he forfeited these issues by not raising them below, he asks us
to review the matters for plain error or ineffective assistance of counsel. Defendant then references
the arguments he made elsewhere in his brief with respect to the CAC interviews.
¶ 143 The State responds that the police officers’ comments about the credibility of J.G.’s
and M.G.’s accusations were “relevant and admissible to demonstrate the statements’ effects on
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defendant[ ] and to explain the course of the detectives’ investigation.” According to the State,
Palmer and Thompson used a “standard interrogation tactic,” and this evidence was not used by
the prosecution as “present opinion testimony” regarding the credibility of J.G. and M.G.
Furthermore, the State argues that the third clip, which included discussions about defendant
bathing J.G. and M.G. and spanking I.G., was likewise admissible both “to demonstrate the
statements’ effects on defendant” and to “explain the course of the detectives’ investigation.” The
State also argues that the sixth clip properly terminated where it did to avoid prejudicial discussions
regarding polygraph examinations. The State maintains that any error with respect to the admission
of these clips was harmless.
¶ 144 We hold that defendant has failed to establish either plain error or ineffective
assistance of counsel in connection with the police officers’ statements on the clips regarding the
credibility of the accusations made by J.G. and M.G.
“Statements made by police officers when questioning a defendant,
including opinions and observations regarding the defendant’s guilt or credibility,
are generally relevant and admissible to demonstrate the statements’ effects on the
defendant, to provide context to the defendant’s responses, or to explain the logic
and course of the officers’ interview or investigation.” People v. McCallum, 2019
IL App (5th) 160279, ¶ 56.
Moreover, although it is improper for a witness to testify that another witness is credible,
statements made during police interviews about credibility generally do not run afoul of that rule.
See People v. Whitfield, 2018 IL App (4th) 150948, ¶ 58 (“[S]tatements of past opinions, rather
than present ones, do not constitute improper lay opinion testimony.”). Here, the references to the
credibility of J.G.’s and M.G.’s statements were relevant and probative to illustrate defendant’s
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reactions. Defendant’s reliance on People v. Davila, 2022 IL App (1st) 190882, does not change
our analysis. In Davila, the prosecution played for the jury a “nearly three-hour long videotape”
of a confrontational police interview where the defendant never made inculpatory statements.
Davila, 2022 IL App (1st) 190882, ¶ 14. Thus, the appellate court reasoned that a police officer’s
statements during that interview regarding credibility “did not serve to show any transformation
in defendant’s story or provide helpful context.” Davila, 2022 IL App (1st) 190882, ¶ 64. Here, by
contrast, the jury saw only short clips of defendant’s interview, which was nonconfrontational.
Although defendant never confessed to committing the charged offenses, he made numerous
statements that a reasonable jury could find noteworthy or unusual. We also note that the court in
Davila reversed the defendant’s conviction based on a preserved error, not based on the plain-error
doctrine or ineffective assistance of counsel. Davila, 2022 IL App (1st) 190882, ¶ 74. Here, the
references to credibility in defendant’s police interview do not entitle defendant to a new trial.
¶ 145 We likewise hold that defendant has failed to demonstrate plain error or ineffective
assistance of counsel with respect to the admission of the third clip. Bathing the children was not
in itself a prior bad act. Rather, the discussion about bathtime was notable because it included
defendant making the unusual remark that he never touched the children inappropriately, “besides
from giving them a bath.” Defendant’s statements showed that he may have harbored distorted
views about what constitutes appropriate versus inappropriate touching. Defendant’s discussion
about bathing the children arguably took on additional significance in light of defendant’s trial
testimony that he felt uncomfortable babysitting the children and thus rarely did it. If defendant
felt comfortable enough to bathe Makenna’s children, one might doubt his testimony that he felt
uncomfortable babysitting them and thus needed to Facetime his mother the entire time.
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¶ 146 Defendant’s contention that the third clip included an irrelevant and highly
prejudicial discussion of abuse against I.G. is hyperbole. In the third clip, in response to
defendant’s question, Palmer clarified that I.G. said she got “spanked on the butt.” Spanking does
not necessarily equate to abuse.
¶ 147 Defendant next contends that the jury should have heard additional portions of the
sixth clip to put his statements in context. However, the trial court expressly offered defense
counsel the opportunity to play additional portions of defendant’s interview that were necessary to
provide context, and defense counsel did not take the court up on its offer with respect to the sixth
clip. The invited-error doctrine applies where a defendant acquiesces to the admission of evidence.
People v. Johnson, 2023 IL App (4th) 220201, ¶ 33. Here, by focusing his objections on other
clips, defense counsel led the court to believe there were no additional portions of defendant’s
interview that were necessary to contextualize the sixth clip, thus acquiescing to playing the sixth
clip as tendered by the State. Although inviting or acquiescing to an error forecloses a plain-error
challenge, a defendant may still argue that defense counsel “was ineffective for inviting the ruling.”
Johnson, 2023 IL App (4th) 220201, ¶ 38.
¶ 148 Defendant does not articulate a cogent argument that he suffered prejudice from his
counsel’s failure to ensure that the jury heard additional portions of the interview to contextualize
the sixth clip. Defendant merely references the ineffective-assistance analysis from an earlier
section of his brief that addressed a completely different issue. Forfeiture aside, defendant suffered
no prejudice for purposes of Strickland, as we discern no reasonable probability that the result of
the trial would have been different had the clip been edited differently. In the sixth clip, defendant
said he did not “remember this ever happening” and that “if it happened, then I don’t remember
it.” Palmer asked defendant whether he thought he “could have, like, blocked it out.” The clip
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ended without defendant answering that question. However, in the full version of the interview,
which is also in the record, defendant answered Palmer’s question, “No.” He added: “I have a good
memory, and I’m a hundred percent sure that this never happened.” Contrary to what the State
argues on appeal, this context would have been admissible, as defendant did not mention a
polygraph examination until more than a minute and a half later in the interview. Nevertheless,
even if defendant’s answer had been included in the clip shown to the jury, it would not change
the fact that the State’s evidence against defendant was strong and there were multiple
inconsistencies in the defense’s evidence. Defendant made a noteworthy remark about not
remembering sexually abusing J.G. and M.G. before backtracking when questioned about that
remark. The fact that defendant backtracked hardly makes the remark less unusual. Defendant has
failed to demonstrate prejudice, so his ineffective-assistance claim with respect to the sixth clip
fails.
¶ 149 D. Claims That Defense Counsel Employed an Ineffective Trial Strategy
¶ 150 As his final claim, defendant argues his counsel “rendered ineffective assistance by
employing unsound trial strategy throughout the proceedings.” Specifically, defendant criticizes
his counsel for (1) introducing evidence about the order entered in the juvenile court case directing
defendant not to have contact with J.G. and M.G., (2) introducing testimony that defendant was
uncomfortable being alone with J.G. and M.G., (3) questioning Palmer about whether J.G. had
used particular words during his CAC interview, (4) mentioning in closing argument I.G.’s
involvement with the abuse, and (5) encouraging the jury to rewatch the CAC interviews during
their deliberations.
¶ 151 The State responds that defense counsel pursued a reasonable trial strategy and that
defendant has failed to demonstrate he was prejudiced by his counsel’s performance.
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¶ 152 As noted previously, to obtain relief based on ineffective assistance of counsel, a
defendant must show both that trial counsel performed deficiently and that such deficiency
prejudiced the defense. Strickland, 466 U.S. at 687. With respect to the deficiency requirement,
the United States Supreme Court has cautioned 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.” Strickland, 466 U.S. at 689. A reviewing court “must indulge a
strong presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance” and that the challenged action was sound trial strategy. Strickland, 466 U.S. at 689.
Given Strickland’s mandate to accord deference to attorneys’ decisions, “[s]trategic choices are
virtually unchallengeable.” People v. Westfall, 2018 IL App (4th) 150997, ¶ 62.
¶ 153 Defendant argues that evidence of the juvenile court order had “no probative value
to add to the defense” because (1) the mere entry of the order did not prove the parties followed it
and (2) the abuse allegedly occurred before the order was entered. Defendant maintains that such
evidence was “very prejudicial” to the defense, as it was effectively other-crimes evidence
suggesting defendant “had done something so harmful to the kids that a court prohibited contact.”
(Emphasis in original.)
¶ 154 Defendant’s argument fails to acknowledge that the broad temporal range of the
indictment posed an obvious challenge to the defense. The indictment alleged defendant
committed three offenses against J.G. and M.G. sometime between January 1, 2020, and June 30,
2022. Defense counsel reasonably pursued a trial strategy that involved attempting to narrow
defendant’s window of opportunity to commit the offenses. Part of that strategy was to show that
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defendant had no contact with the children after August 26, 2020—which was nearly two years
before the sexual abuse allegations surfaced. But there was no risk-free way to introduce this fact
into evidence, as the reason defendant never saw the children again was that DCFS removed them
from the home due to physical abuse at the hands of either defendant, Makenna, or both.
¶ 155 Moreover, the cat was let out of the bag when Jeremy volunteered information
during the State’s case-in-chief about the children’s abuse case in August 2020. Defense counsel
later introduced evidence that (1) an order entered in a juvenile court case on August 28, 2020,
prohibited defendant from contacting the minors and (2) defendant followed that order. Counsel
likely weighed the helpful-versus-harmful value of introducing evidence of the order. Viewing the
case with the deferential eye that Strickland demands, we cannot say that defense counsel’s
strategy with respect to the order was so unreasonable as to constitute deficient performance.
¶ 156 Defendant also argues that his counsel was ineffective for introducing testimony
that he was uncomfortable being alone with J.G. and M.G. Again, we cannot conclude that
counsel’s performance was deficient. Defense counsel’s obvious reason for introducing evidence
that defendant Facetimed his mother was to show that he lacked an opportunity to commit the
charged offenses on the three days he was admittedly alone with the children. Defense counsel
likely recognized the need to offer the jury a plausible explanation for why an adult man would
Facetime his mother for hours at a time on three straight days when he was supposed to be taking
care of children. Introducing testimony that defendant felt uncomfortable watching the children
alone was arguably a plausible reason and was not necessarily harmful to the defense.
¶ 157 Defendant next argues that defense counsel had no reason to question Palmer about
whether J.G. used certain words during his CAC interview to describe oral sex. We see no
indication that counsel performed deficiently. Although J.G. first used the word “popsicle” while
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making a gesture indicative of oral sex, Lavin subsequently asked J.G. whether Donnie made him
“do like you do with a popsicle.” Defense counsel may have been attempting to get the jury to
consider whether Lavin asked leading questions during the CAC interview. Alternatively, counsel
may have been attempting to plant the seed that an adult coached J.G. with respect to the language
he used in his disclosure. We note that defense counsel touched on that point in closing argument
by emphasizing that the sexual abuse allegations surfaced after the children had spent two years
with their father and that the children had talked to multiple people about their allegations.
¶ 158 Finally, defendant argues his counsel was ineffective for mentioning I.G.’s
involvement in the abuse in closing argument and urging the jury to rewatch the CAC interviews
during their deliberations. Counsel did not perform deficiently by making these arguments to the
jury. In the context of arguing that the children’s accusations were unworthy of being credited,
counsel noted that M.G. “implied the sister was somehow involved.” Considering that the jury
knew I.G. did not disclose being sexually abused, it seems likely that defense counsel was using
that fact to undercut the allegations made by M.G. We also see nothing deficient about defense
counsel informing the jury that it could review the CAC interviews and “hear it for yourself exactly
what the boys said.” Defense counsel was attempting to demonstrate confidence and that he had
nothing to hide. This strategy was not outside of “the wide range of reasonable professional
assistance” and did not constitute deficient performance. Strickland, 466 U.S. at 689.
¶ 159 III. CONCLUSION
¶ 160 For the reasons stated, we affirm the trial court’s judgment.
¶ 161 Affirmed.
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