People v. Choate ( 2019 )

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Appellate Court Date: 2019.01.02
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People v. Choate, 2018 IL App (5th) 150087
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption JAMES E. CHOATE III, Defendant-Appellant.
District & No. Fifth District
Docket No. 5-15-0087
Rule 23 order filed September 19, 2018
Motion to publish
granted October 2, 2018
Opinion filed October 2, 2018
Decision Under Appeal from the Circuit Court of Lawrence County, No. 14-CF-20;
Review the Hon. Robert M. Hopkins, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier, Ellen J. Curry, and Eun Sun Nam, of State
Appeal Appellate Defender’s Office, of Mt. Vernon, for appellant.
Michael M. Strange, State’s Attorney, of Lawrenceville (Patrick
Delfino, David J. Robinson, and Sharon Shanahan, of State’s
Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE CHAPMAN delivered the judgment of the court, with
opinion.
Justices Cates and Moore concurred in the judgment and opinion.
OPINION
¶1 The defendant, James Choate III, appeals his conviction for predatory criminal sexual
assault of a child (720 ILCS 5/11-1.40(a)(1) (West 2012)). The charge stemmed from abuse
of the defendant’s stepdaughter, Stephanie S. The incident at issue took place shortly after
the family moved from Indiana to Illinois. Although the evidence at trial was focused on
events that took place in Illinois on a specific date, there was also evidence that the defendant
abused his stepdaughter in Indiana. The jury was instructed that the State did not have to
prove that the abuse occurred on a specific date. The jury was not instructed that the State
had to prove that the offense occurred in Illinois. The defendant contends that these
instructions allowed the jury to find him guilty based on conduct that occurred in Indiana,
contrary to the rule of criminal jurisdiction. See id. § 1-5(a)(1) (providing that a criminal
defendant is subject to prosecution in Illinois only for conduct that occurred at least partially
within the state). He argues that trial counsel was ineffective for failing to request an
instruction on jurisdiction or to object to the instruction telling jurors that the State did not
have to prove that the offense took place on the date specified in the charge. He also argues
that the court did not comply with the requirements of Illinois Supreme Court Rule 431(b)
(eff. July 1, 2012) and People v. Zehr, 103 Ill. 2d 472 (1984), during voir dire. We affirm.
¶2 The defendant began a relationship with Stephanie’s mother, Tonya, in 2012. At that
time, Stephanie was seven years old. The defendant and Tonya married in December 2013.
Throughout the relationship, the family moved numerous times, usually staying with
relatives. They lived at various places in Indiana. Early in January 2014, they moved to
Sumner, Illinois, where they shared a trailer with Tonya’s cousin, Joseph A., his wife,
Ashley, and their two children, one-year-old Joseph Jr. and three-month-old Jacob. In the
early morning hours of January 30, Jacob was rushed to the hospital with life-threatening
head injuries. The defendant stayed in the trailer with Stephanie while the other adults went
to the hospital with the baby. That is when the events at issue took place.
¶3 The Department of Children and Family Services (DCFS) became involved due to the
severity of Jacob’s injuries, which were determined to have been inflicted by Joseph. DCFS
investigator Jay Reeves took Joseph Jr. into protective custody. He learned from the adults in
the family that eight-year-old Stephanie also lived in the trailer. Reeves drove to Stephanie’s
elementary school to take her into protective custody as well. In the car, Stephanie told
Reeves that she had a secret. She told him that the defendant touched her “private part” and
made her touch his “private part.” She said that this happened more than once and that the
last time it happened was that morning. Reeves reported Stephanie’s allegations to the police
and scheduled a forensic interview for her the following day at the Healing Harbor Child
Advocacy Center.
¶4 This matter came for trial in November 2014. Jay Reeves testified that he received a call
at approximately 4 a.m. on January 30, 2014, to investigate a case involving a
three-month-old baby with life-threatening injuries. At the police station, he spoke with the
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adults who lived in the trailer with the baby. He learned from them that there were two other
children living in the trailer—the baby’s 15-month-old brother, Joseph Jr., and his 8-year-old
cousin, Stephanie. When Stephanie’s mother, Tonya, indicated that she intended to continue
living in the trailer, Reeves told her that he needed to take both Joseph Jr. and Stephanie into
protective custody. At this time, Joseph Jr. was at the police station with the adults, the baby
had been airlifted to a hospital in Indiana, and Stephanie was at school.
¶5 Reeves left the police station with Joseph Jr. and drove to Stephanie’s school. He testified
that after he explained to Stephanie why he was picking her up, he drove the two children to
a doctor’s office for an initial health screening. Reeves explained that this was standard
DCFS procedure. He testified that he then drove the two children to their foster home, a drive
of about 100 miles.
¶6 Reeves testified that during the drive, Stephanie asked if she could call him “Dad.” She
told him that this was what she called all of the men who took care of her. Stephanie referred
to three different men as her dads—her biological father, Levi, her previous stepfather, Doc,
and the defendant, whom she also called Jimmy. Reeves explained to Stephanie that although
it was his job to make sure that she and her little cousin were safe, he would not take care of
them the same way a dad would take care of them. He told her that she could call him either
Jay or Mr. Reeves. He then asked her which of her daddies she liked best. According to
Reeves, Stephanie told him that she did not like Doc, and she described instances of physical
abuse by him. She told Reeves that her favorite daddy was either Levi or Jimmy.
¶7 Reeves testified that after a pause in the conversation, Stephanie told him that she had a
secret, but she did not know if she should tell him her secret because her mother would be
angry. Reeves assured her that it was his job to listen to her and that she would not get into
trouble for telling him her secret. Reeves testified that Stephanie then told him that Jimmy
touched her “private part” and made her hand touch his “private part.” She told Reeves that
this happened more than once and that the last time was that morning. She explained that she
woke up that morning because she felt the defendant rubbing her “private part.” She told
Reeves that the defendant also held onto her hand and made her rub his “private part.”
Reeves testified that Stephanie asked him, “Why doesn’t he do that with his own hand?”
Reeves told her he did not know why. He testified that Stephanie then told him that she was
afraid she would get into trouble with her mother for telling him this. When he asked her
why, Stephanie explained that her mother grounded her for two weeks just for talking to
someone from DCFS in Indiana. She also told Reeves that she knew her mother loved
Jimmy. She told him that she, too, liked Jimmy except when he was touching her “private.”
¶8 Teresa Miller, the forensic interviewer who conducted an interview with Stephanie, also
testified for the State. During her testimony, a video recording of the interview was played
for the jury. As soon as Stephanie and Miller sat down at a table to begin the interview,
Stephanie noticed the video camera and asked Miller, “Is that a camera?” Miller explained
that the interview was being recorded so that Stephanie would not have to tell her story more
than once. She assured Stephanie that her mother and father would never see the recording.
She asked Stephanie, “Does that make you feel better?” Stephanie shook her head yes, but
Miller apparently thought she continued to look apprehensive. She asked Stephanie, “You
look a little worried. What are you thinking?” Stephanie replied, “I’m thinking that it’s just
that most people lie to me.” Miller reassured Stephanie and promised never to lie to her.
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¶9 Miller then began the interview by asking Stephanie to tell her about herself and her
family. Stephanie told Miller that she was born in Washington, Indiana, and that her family
moved around a lot. She told Miller that they recently moved into a trailer in Sumner,
Illinois. The other people who lived in the trailer were Colby, Ashley, Jacob, Joseph, and
Mom and Dad. Miller asked if any of the people she named were adults. Stephanie explained
that Jacob and Joseph were babies and the other individuals were adults. (We note that,
although Stephanie does not clarify this, we presume that she refers to 15-month-old Joseph
Jr. as “Joseph” and that “Colby” is a nickname for Joseph Sr.) When Miller asked if she
knew what names other people called her mom and dad, Stephanie was reluctant to answer.
She told Miller that her mom got angry at her if she used their first names. After Miller
assured her that her mother would not see the video recording, Stephanie told her that the
names of her parents were Tonya and Jimmy. She clarified that Jimmy was her stepfather;
her “real dad” was Levi.
¶ 10 Miller then turned Stephanie’s attention to her allegation of abuse. She began by asking
Stephanie what she told Reeves the previous day. Stephanie said that she told Reeves that she
woke up to Jimmy putting her hand on his “private” while her mom was at the hospital with
the baby. She told Miller that this happened in the trailer in Sumner. She told her that the
defendant was sitting on her bed when he did this. She said that he moved her hand to make
her rub his “private.”
¶ 11 Stephanie told Miller that the same thing happened when she lived in Vincennes and
Hammond, but she did not describe any specific incidents. She thought that it happened 10 to
20 times. First she said that it happened only once at the trailer in Sumner, but she then said
that she thought it happened one other time in Sumner.
¶ 12 Miller asked Stephanie if she ever told anyone about these incidents. Stephanie said that
the first person she told was Reeves, but she noted that she also told her new foster parents
later that evening. Miller asked if she ever told her mother, to which Stephanie replied, “No.”
When Miller asked why, Stephanie told her that she did not tell her mother because she was
afraid her mother would get angry at her. She added, “She usually gets mad.”
¶ 13 At first, Stephanie said that her stepfather did not touch any part of her body other than
her hand. She said this even when Miller asked her if he touched her anywhere else.
Approximately 20 minutes into the interview, Miller asked Stephanie about what, if
anything, the defendant said to her while making her rub his “private part.” At this point,
Stephanie told Miller, unprompted, that the defendant also put his hand inside her body. In
response to questioning, she told Miller that these incidents only occurred when no one else
was home.
¶ 14 At trial, Miller acknowledged that she asked Stephanie approximately seven times
whether the defendant ever touched any other part of her body before Stephanie told her that
he put his hand inside her vagina. Miller explained that it was common for children who have
been abused to feel comfortable enough to tell some parts of their stories earlier than others.
She testified that she believed that Stephanie had more to tell her based on her body language
and her facial expressions.
¶ 15 Stephanie also testified at trial. She was nine years old at that time. She was first asked
about the day she met Reeves. She stated that she remembered him picking her up at school.
Asked if she knew why Reeves picked her up, she replied, “Because the baby got hurt.”
Stephanie testified that at the time the baby was hurt, she lived in a trailer in Sumner with her
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mother, her stepfather, the baby who was hurt, and Ashley, Colby, and Jacob. She testified
that she could not remember the name of the baby. (We note that the baby was Jacob.)
¶ 16 Stephanie then testified in detail about the events of that morning. She testified that she
was woken up by Jimmy touching her when it was still dark out. Jimmy was holding her
hand on his penis and had his hand on her vagina, although she used the terms “private” or
“private part.” She testified that she asked Jimmy where the other adults were, and he told
her that they were at the hospital. When she asked why, he told her that the baby was hurt.
¶ 17 Stephanie testified that it felt like two or three of the defendant’s fingers were touching
her and it felt like “his hand went a little bit in [her] bad spot like that.” She explained that he
was rubbing inside “the hole where [her] pee comes out.” She testified that while this was
happening, the defendant placed her hand on his “private part” and told her to “wiggle” it.
She described the defendant’s penis as feeling “like bones” with a “heartbeat.” She also
stated that it “felt like it was dripping down water.” Stephanie testified that she asked the
defendant if she could get up, but he told her, “In just a little bit.” She testified, however, that
he later stopped when she told him she needed to get up to use the bathroom.
¶ 18 Stephanie testified that the same thing happened other times in other places the family
had lived, but she did not know how many times it had happened. She did not remember it
happening any other times when they lived in the trailer in Sumner. She testified that it only
happened when no one else was home. When asked if the abuse always followed the same
pattern, Stephanie said, “No.” She noted that it did not always happen when she was in bed.
She described an incident that occurred while the family was living in a different trailer in
Hammond, Indiana. On that occasion, she went into the bedroom shared by her mother and
the defendant when the defendant asked her if she wanted to feed the turtles. After feeding
the turtles, she sat on the bed with the defendant, and they watched the turtles. She testified
that the defendant then pulled her down on the bed and “started to do the private thing.”
Stephanie testified that they no longer had turtles when they lived in the trailer in Sumner;
their only pet in Sumner was a dog.
¶ 19 Stephanie testified that Reeves was the first person she told about the abuse. She
explained that she never told her mother because she was afraid that her mother would be
angry at her. She noted that her mother got angry at her often. Stephanie further testified that
most of the time she liked her stepfather because he played games with her and was nice to
her.
¶ 20 The State did not call the investigating officer to testify. The parties stipulated that Dr.
Rachel Winters performed a sexual abuse examination of Stephanie, and that if called to
testify, Dr. Winters would state that she found no physical evidence of abuse. The defendant
called three witnesses, all of whom were individuals the family had lived with at some point
during their many moves. All three witnesses testified that the defendant had a good
relationship with Stephanie and that they never witnessed any incidents of abuse. The
defendant testified on his own behalf. He, too, testified that he had a good relationship with
Stephanie. He denied that he ever sexually abused his stepdaughter. He testified that on the
morning in question, Joseph Sr. stayed home in the trailer while Tonya and Ashley took the
baby to the hospital. He further testified that he was rarely alone with Stephanie in any of the
places they lived, although he also testified that he was able to stay home and care for her
when he was laid off from a job. According to the defendant, the family did not live in a
trailer when they lived in Hammond. Instead, they lived in a house with his aunt and her
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fiancé. The defendant confirmed, however, that there were turtles in the bedroom he shared
with Tonya at the house in Hammond.
¶ 21 During deliberations, the jury asked to view the video recording of the forensic interview
again. The recording was sent to the jury with no objection. The jury returned a verdict of
guilty, and the court subsequently sentenced the defendant to 12 years in prison. The
defendant filed a motion to reconsider his sentence and a motion for a judgment
notwithstanding the verdict or a new trial. The court denied both motions. This appeal
followed.
¶ 22 The defendant’s first argument concerns jury instructions. In relevant part, the jury was
instructed that “The information states that the offense charged was committed on or about
January 30, 2014. If you find the offense charged was committed, the State is not required to
prove that it was committed on the particular date charged.” Defense counsel did not object
to this instruction. She also did not request that the jury be instructed that it must find that the
offense was committed within the State of Illinois. On appeal, the defendant argues that these
instructions allowed jurors to find the defendant guilty based on the evidence of conduct that
occurred in Indiana. He argues that, as such, the court erred in giving these instructions and
that counsel was ineffective for failing to either object to the instruction concerning the
timing of the offense or request an instruction on geographic jurisdiction. We disagree.
¶ 23 Jury instructions serve the important purpose of conveying to jurors “ ‘the legal rules
applicable to the evidence presented at trial.’ ” People v. Rogers, 2012 IL App (1st) 102031,
¶ 61 (quoting People v. Mohr, 228 Ill. 2d 53, 65 (2008)). We will not reverse a trial court’s
decision on which instructions to give absent an abuse of the court’s discretion. People v.
Gilliam, 2013 IL App (1st) 113104, ¶ 41. On appeal, we must consider all of the instructions
given and determine whether those instructions “ ‘fully and fairly announce the law
applicable to the theories of the State and the defense.’ ” Rogers, 2012 IL App (1st) 102031,
¶ 61 (quoting Mohr, 228 Ill. 2d at 65). A court abuses its discretion if it gives instructions
that do not accurately convey the applicable law or are not clear enough to avoid confusing
or misleading jurors. Id. Significantly for purposes of this appeal, a court abuses its discretion
if it gives instructions that, due to their lack of clarity, relieve the State of its burden of
proving any element of the charge beyond a reasonable doubt. Id. ¶ 63.
¶ 24 Criminal jurisdiction—i.e., the fact that the offense charged took place wholly or partly
within Illinois—is an essential element that must be proven beyond a reasonable doubt along
with all of the elements of the specific offense charged. Gilliam, 2013 IL App (1st) 113104,
¶ 34. Thus, if the location of the criminal conduct at issue is unclear, it is necessary for the
trial court to instruct jurors that they must find that the crime was committed at least partly
within the state. See People v. Ogunsola, 87 Ill. 2d 216, 222 (1981) (holding that
fundamental fairness requires that a jury be instructed on all of the elements it must find
beyond a reasonable doubt); People v. Sims, 244 Ill. App. 3d 966, 1006 (1993) (noting that
the jury was instructed that it must find that the offense took place in Madison County,
Illinois, in an appeal challenging the sufficiency of the evidence to support that finding).
However, where the location is not unclear, the trial court has no obligation “to sua sponte
issue an instruction on the issue of geographic jurisdiction.” Gilliam, 2013 IL App (1st)
113104, ¶ 39.
¶ 25 Here, as noted, counsel did not request an instruction on the question of geographic
jurisdiction. The defendant argues that her failure to do so constituted ineffective assistance
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of counsel. This is so, he contends, because the jury heard evidence that similar conduct
occurred in both states, thereby making it possible for jurors to find him guilty even if they
were only convinced beyond a reasonable doubt that the conduct in Indiana occurred. He
argues that the problem was magnified by counsel’s failure to object to an instruction telling
jurors that they could find the defendant guilty if they found that the charged conduct did not
occur on the date specified in the charge. He points out that there was no evidence of abuse
occurring in Illinois on any other date. We are not persuaded.
¶ 26 Claims of ineffective assistance of counsel are evaluated under the test established by the
United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). To prevail
on a claim of ineffective assistance of counsel, a defendant must demonstrate both that
counsel’s performance was deficient and that the defendant was prejudiced as a result.
People v. Makiel, 358 Ill. App. 3d 102, 105-06 (2005). To demonstrate deficient
performance, the defendant must show that counsel’s representation fell below an objective
standard of reasonableness. Id. at 105. To demonstrate prejudice, he must show there is
reasonable probability that he would have been acquitted if not for the deficiencies in
counsel’s performance. Id. at 105-06 (citing Strickland, 466 U.S. at 694). A “reasonable
probability” is a probability sufficient to undermine confidence in the outcome of the trial.
People v. Manning, 241 Ill. 2d 319, 327-28 (2011). For the reasons that follow, we do not
believe the defendant can make either of these showings in this case.
¶ 27 We find the First District’s decision in Gilliam instructive. There, the defendant was
convicted on four charges involving sexual abuse of his two stepdaughters. Gilliam, 2013 IL
App (1st) 113104, ¶ 1. As in this case, the defendant and his wife and stepdaughters lived in
multiple locations in Illinois and Indiana, and there was evidence that abuse occurred in both
states. Id. ¶¶ 5-26. The defendant appealed his convictions, arguing that the trial court’s
failure to instruct jurors that the State was required to prove that the alleged abuse took place
in Illinois constituted plain error. Id. ¶ 31.
¶ 28 On appeal, the First District first found that the State presented sufficient evidence to
prove beyond a reasonable doubt that the offenses charged took place in Illinois. Id.
¶¶ 35-37. The court then directly addressed the defendant’s contention that because the jury
was not instructed on the element of geographic jurisdiction, it could have found the
defendant guilty of some of the charges based solely on conduct that occurred in Indiana. Id.
¶ 38. In rejecting this claim, the court emphasized that the charges were based on two
specific incidents, one involving foot-to-vagina contact between the defendant and both of
his stepdaughters, the other involving penis-to-vagina contact between the defendant and
both girls. Id. ¶ 39. The court explained that because both girls testified that these two
specific incidents took place when they lived in apartments in Chicago, “[t]he location
element was not unclear.” Id. As such, the court concluded, “the trial court was not bound to
sua sponte issue an instruction on the issue of geographic jurisdiction.” Id. The appellate
court went on to hold that the trial court did not err in declining to instruct the jury on
geographic jurisdiction. It therefore found it unnecessary to consider whether the claimed
error rose to the level of plain error. Id. ¶ 44.
¶ 29 The defendant argues that Gilliam was wrongly decided because sufficiency of the
evidence is the wrong standard. He correctly notes that if the evidence is not sufficient to
prove Illinois jurisdiction beyond a reasonable doubt, the jury instruction issue becomes
irrelevant because the proper remedy is outright reversal. See People v. Moreland, 292 Ill.
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App. 3d 616, 619-20 (1997). He argues that even in cases where the evidence is sufficient to
prove jurisdiction beyond a reasonable doubt, the jury must be instructed on the issue if the
evidence raises a question about the location of the conduct at issue.
¶ 30 We note that although the Gilliam court did focus most of its discussion on the
sufficiency of the evidence, as the defendant points out (see Gilliam, 2013 IL App (1st)
113104, ¶¶ 35-37, 43), the court also found that the element of location was not in question
(see id. ¶ 39). In addition, as the defendant himself acknowledges, the Gilliam court
implicitly recognized that if the location of the conduct is in question, an instruction on
geographic jurisdiction is needed. See id. (holding that a court is not required to provide an
instruction on geographic jurisdiction if the location of the criminal conduct at issue is clear).
We therefore do not read Gilliam as holding that an instruction on geographic jurisdiction is
never required as long as there is sufficient evidence to prove beyond a reasonable doubt that
the offense was committed at least partly in Illinois. We agree with the defendant that the
question is whether, under the facts and circumstances of the case, an instruction on
geographic jurisdiction is necessary to avoid the possibility of a conviction based on conduct
that did not occur within the state. We turn now to that question.
¶ 31 Here, as in Gilliam, the charge was based on a specific incident. It specifically alleged
that the defendant digitally penetrated Stephanie’s vagina and forced her to touch his penis
on or about January 30, 2014. As discussed previously, the evidence of abuse at trial
consisted of Stephanie’s statement to Reeves, her video-recorded forensic interview with
Miller, and her testimony at trial. In both her statement to Reeves and her interview with
Miller, Stephanie gave detailed accounts of the specific incident described in the charge—an
incident that occurred in Illinois. She told Reeves about the incident the day it happened, and
she told Miller about the incident the following day. There was no reason for jurors to
believe that Stephanie was confused about where this incident took place when she described
it to Reeves and Miller.
¶ 32 At trial, Stephanie likewise described the incident that occurred in Illinois in detail.
Although the trial took place 10 months after the incident, the incident occurred on a day that
likely stood out in her memory because it was the day her baby cousin suffered
life-threatening injuries. In questioning Stephanie, both defense counsel and the state’s
attorney specifically called her attention to the day the baby was injured. In addition, as the
State points out, Stephanie knew the difference between the places she lived (even though
she described the Hammond residence as a trailer, rather than a house)—she testified that in
Hammond, the family had pet turtles, while in Sumner, their only pet was a dog. Thus, there
was no reason for jurors to find that the incident Stephanie described in her testimony took
place anywhere other than Sumner, Illinois.
¶ 33 Although there was some evidence of other conduct, under the circumstances of this case,
there was no reason for jurors to have believed that any other conduct was at issue. Stephanie
told both Reeves and Miller that similar incidents also took place in Indiana, but she did not
discuss any particular incident with either of them. At trial, however, Stephanie did describe
an additional incident that took place in Indiana. She gave specific details about the
circumstances leading up to the abuse that took place that day, but all she said about the
abuse itself was that the defendant “did the private thing.” Thus, the evidence at trial was
clearly focused on the Illinois incident. It is also worth noting that both attorneys told jurors
during their opening statements that the events of January 30, 2014, were the events at issue
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in the case. In light of this, we believe it was clear to jurors that the events at issue were the
events that took place that morning in Sumner, Illinois. An instruction telling them so was
not necessary.
¶ 34 We must also consider the potential impact of the instruction telling jurors that the
offense was committed “on or about January 30, 2014,” but that the State was not required to
prove that the offense took place on that date. As we have discussed, the defendant argues
that this instruction could have led jurors to believe that they could find the defendant guilty
if they believed Stephanie’s account of the incident that took place in Hammond, Indiana,
even if they did not believe her account of the incident in Sumner, Illinois.
¶ 35 The State, by contrast, argues that the instruction was proper and that the “on or about”
language actually helped clarify for jurors that the events at issue were those that took place
in the trailer in Sumner. As the State points out, the incident took place overnight. Stephanie
testified that she did not know what time it was when the defendant woke her up, and the
defendant testified that he did not know what time it was when Ashley and Tonya left to take
baby Jacob to the hospital. Thus, the State contends, the instruction was necessary and proper
because without it, jurors could have found that the State failed to prove beyond a reasonable
doubt that the offense occurred after midnight—on January 30—rather than before
midnight—on January 29. See People v. Whitaker, 263 Ill. App. 3d 92, 100 (1994). The State
further contends that reasonable jurors, applying common sense, could conclude that conduct
occurring before midnight on January 29 was included in a charge alleging that a crime was
committed “on or about January 30,” but that common sense would preclude them from
finding that conduct occurring at least several weeks earlier, when the family lived in
Indiana, was likewise included. As such, the State contends, the phrase “on or about”
provided additional clarity for jurors about which conduct was at issue.
¶ 36 We need not decide whether we would accept the State’s assertion about the benefit of
the “on or about” language if the location of the conduct at issue were not otherwise
sufficiently clear. For the reasons we have already discussed, we believe the location of the
conduct at issue in this case was not in doubt. Thus, we do not believe jurors were misled by
the instruction. Moreover, we find that the instructions as a whole did not allow the jury to
return a guilty verdict based on conduct that occurred in Indiana. We therefore conclude that
counsel provided effective assistance.
¶ 37 The defendant’s next argument concerns the court’s handling of the Zehr principles
during voir dire. Illinois Supreme Court Rule 431(b) (eff. July 1, 2012) requires courts to
question prospective jurors as to their understanding and acceptance of four principles of law
known as the Zehr principles. The four principles are as follows: (1) the defendant is
presumed to be innocent of the charge against him, (2) the defendant is not required to offer
any evidence on his behalf, (3) the State must prove the defendant guilty beyond a reasonable
doubt, and (4) jurors may not draw any negative inferences if the defendant chooses not to
testify. People v. Thompson, 238 Ill. 2d 598, 606 (2010) (citing Ill. S. Ct. R. 431(b) (eff. May
1, 2007)); see also Zehr, 103 Ill. 2d at 477. Prospective jurors may be questioned individually
or in a group. However, every juror must have the opportunity to respond to questions about
whether they both understand and accept each of these four principles. Thompson, 238 Ill. 2d
at 607.
¶ 38 The defendant contends that, in this case, the court ran afoul of these requirements in two
ways. First, he argues that the court erred by commingling the Zehr principles rather than
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clearly addressing each principle separately. Second, he contends that the court’s method of
questioning jurors did not allow all of the jurors to tell the court whether they understood and
accepted the principles. He points out that although some prospective jurors were specifically
asked whether they understood and accepted the principles, others were simply called on by
name.
¶ 39 The defendant acknowledges that he forfeited review of this issue by failing to object
during voir dire. See People v. Belknap, 2014 IL 117094, ¶ 47. He asks us to review his
claim under the plain error doctrine. Under that doctrine, we may consider arguments that
have been forfeited if (1) “the evidence [was] so closely balanced that the error alone
threatened to tip the scales of justice against the defendant” or (2) the error was serious
enough to affect the fairness of the defendant’s trial and undermine “the integrity of the
judicial process.” People v. Piatkowski, 225 Ill. 2d 551, 565 (2007). Our supreme court has
held that errors in questioning jurors about the Zehr principles are cognizable only under the
closely balanced prong of plain error analysis. People v. Sebby, 2017 IL 119445, ¶ 52;
Thompson, 238 Ill. 2d at 615. The court explained that although the questioning required by
Zehr and Rule 431(b) was designed “to help ensure a fair and impartial jury” (Thompson, 238
Ill. 2d at 609), a court’s failure to fully comply “does not automatically result in a biased
jury” (id. at 610). Thus, failure to comply with Rule 431(b) does not automatically “render a
trial fundamentally unfair.” Id. at 611.
¶ 40 The defendant contends that plain error review is appropriate in this case because the
evidence was closely balanced. Before considering this question, however, we must first
consider whether there was any error at all. People v. Ware, 407 Ill. App. 3d 315, 354 (2011).
The State concedes that the court erred in commingling some of the Zehr principles, but the
State argues that the evidence was not closely balanced. We agree that the court erred.
However, because we find that the evidence was not so closely balanced that the error
threatened to tip the scales against the defendant, we decline to excuse the defendant’s
forfeiture under the plain error doctrine.
¶ 41 Prospective jurors were questioned in three panels. The court began its discussion of the
Zehr principles with the first panel by telling them that the defendant was presumed to be
innocent of the charge against him. The court asked the first prospective juror if she
understood that principle and then asked if she could follow that rule. The court questioned
the second prospective juror in the same manner. The court called the next four jurors by
name, stating to each of them, “Same question.” The court then repeated the proposition that
the defendant is presumed to be innocent and asked the next juror if he understood that
principle and if he could follow it. The remaining jurors on the panel were simply called
upon by name.
¶ 42 The defendant acknowledges that the court correctly articulated the first Zehr principle to
this panel, but he argues that the court’s method of questioning did not give most of the
jurors an opportunity to tell the court whether they understood and accepted the principle.
We do not agree that the court was required to repeat the full question to each juror. There
are no particular words or phrases that must be used to comply with the requirements of Zehr
and Rule 431(b). Ware, 407 Ill. App. 3d at 356. What is important is that the court must give
all of the jurors the opportunity to tell the court whether they understand and accept each
principle. Thompson, 238 Ill. 2d at 607. The questioning we have just described gave jurors
on the first panel that opportunity because it was clear that the court was asking them to
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answer the same question it asked the first two jurors—that is, whether they both understood
and accepted the first principle. However, as we will explain, we find that not all of the jurors
were given an opportunity to tell the court whether they both understood and accepted all
four principles for different reasons.
¶ 43 After discussing the first Zehr principle with the first panel, the court turned its attention
to the remaining principles. The court asked the first juror on the panel, “Do you understand
and accept that the defendant is presumed innocent and does not have to offer any evidence
in his own behalf, but must be proven guilty beyond a reasonable doubt?” The court then
asked if she could follow that rule. The court questioned most of the remaining jurors on the
panel simply by calling on them by name.
¶ 44 As both parties point out, the court’s second question commingled the first, second, and
third Zehr principles. The court discussed these three principles with the second and third
panels in a similar manner. Although the State concedes this was error, we note that
commingling of the Zehr principles is not a per se violation of Rule 431. See, e.g., Ware, 407
Ill. App. 3d at 356; People v. Davis, 405 Ill. App. 3d 585, 590 (2010). However, the court
must give jurors an opportunity to state whether they understand and accept each principle;
the court may not merely make “ ‘a broad statement of the applicable law followed by a
general question concerning the juror’s willingness to follow the law.’ ” Thompson, 238 Ill.
2d at 607 (quoting Ill. S. Ct. R. 431, Committee Comments (rev. May 1, 2007)). The
appellate courts in both Ware and Davis found that trial courts complied with this
requirement even though they commingled some of the Zehr principles. Ware, 407 Ill. App.
3d at 355-56; Davis, 405 Ill. App. 3d at 590. In Ware, the trial court “paused every few
sentences” while explaining the principles and questioned jurors, thereby allowing jurors “to
focus on each principle explained” while responding to questioning. Ware, 407 Ill. App. 3d at
356. Similarly, the trial court in Davis combined its explanation of two of the Zehr principles,
telling jurors that a defendant is not required to testify and is not required to call witnesses or
present any evidence to prove his innocence. Davis, 405 Ill. App. 3d at 589. However, the
trial court asked jurors two distinct questions addressing each of the two principles
individually, which the appellate court found sufficient. Id. at 589-90.
¶ 45 In this case, by contrast, the court did not ask jurors questions that addressed all three
commingled principles individually. The court did, however, provide separate explanations
of two of those principles, followed by questioning. As we have discussed, the court
previously addressed the first Zehr principle—the presumption of innocence—on its own.
The court also went on to discuss the third Zehr principle alone. Addressing the entire panel,
the court asked as follows:
“If, at the close of all the evidence and after you have heard the arguments of
counsel, you believe that the State has failed to prove [the] defendant guilty beyond a
reasonable doubt, would you, under those circumstances, return a verdict of not
guilty?”
The court called on the first juror by name. After she replied, “Yes,” the court repeated the
question and called on the remaining jurors by name only. Although the court’s question
might be construed as asking whether jurors accepted the principle, the court did not ask if
jurors understood the principle. See People v. Mueller, 2015 IL App (5th) 130013, ¶ 23. In
addition, because the court never separately addressed the principle that a defendant need not
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present evidence in his own defense, none of the jurors were questioned as to their
understanding and acceptance of that principle.
¶ 46 The court then addressed the fourth Zehr principle, explaining to the panel that the
defendant was not required to testify and that the jury may not hold it against him if he chose
not to do so. The court asked the first juror if she understood that principle and whether she
could apply the principle if chosen to serve on the jury. The court called on the remaining
jurors by name only. One of the last jurors to be called indicated that he was not sure. The
court asked the next juror if he could “follow that” and then called on the final juror on the
panel by name only. Although most of the jurors on the first panel were given an opportunity
to tell the court whether they both understood and accepted this principle, the last two jurors
were only asked if they could “follow” the principle; they were not asked if they understood
it.
¶ 47 The court’s questioning of the second and third panels followed a similar pattern. There
were a few differences worth noting, however. For example, after explaining to the second
panel that a defendant is presumed innocent of the charges against him (the first Zehr
principle), the court asked the first juror whether he understood and accepted this principle
and whether he thought he could abide by it if chosen to serve on the jury. The court then
addressed the next several jurors, either by stating “Same question” or simply by calling their
names. The court asked one of the jurors, “Do you understand the question?” The court did
not ask the juror whether he accepted the principle, however. The court called on the
remaining jurors by name. Those jurors may reasonably have understood that they, too, were
being asked only whether they understood that the defendant was presumed innocent and not
whether they also accepted this principle.
¶ 48 In addressing the second panel, the court once again commingled the first, second, and
third principles. The court once again went on to ask the prospective jurors whether they
would return a verdict of not guilty if they did not believe the State had proven the defendant
guilty beyond a reasonable doubt (the third Zehr principle). This time, the court also asked
the first juror if he understood the question. However, the court repeated the original question
to the next two jurors without also asking if they understood the question. The court went on
to ask the remaining jurors to respond, either by saying “Same question” or by calling upon
them by name. Thus, only the first panel member was clearly asked whether he understood
that the defendant had to be proven guilty beyond a reasonable doubt.
¶ 49 In discussing the fourth Zehr principle with the second panel, the court asked the first
juror, “If the defendant, James Choate, does not testify in his own behalf, would you hold
that against him?” The court called on the remaining jurors by name. Thus, the court did not
ask any of the jurors whether they understood this principle.
¶ 50 The court’s first question to the third panel commingled the first and third Zehr
principles. The court asked the first juror if he understood and accepted that the defendant is
“presumed innocent unless the charge is proven against him beyond a reasonable doubt” and
then called on the remaining jurors by name. Jurors on this panel were never asked questions
focused solely on the understanding and acceptance of the presumption of innocence. The
court once again commingled the first, second, and third principles, explaining them to the
third panel much the way it explained them to the first two panels. As it did with the first two
panels, the court asked the third panel, as a group, if they would return a verdict of not guilty
if they found that the State had not proven the defendant’s guilt beyond a reasonable doubt.
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The court asked the first juror if he understood the question or had “any questions about that”
and then called on the remaining jurors by name. The court asked if jurors on the third panel
would hold it against the defendant if he did not testify (the fourth Zehr principle) but did not
ask jurors whether they understood the principle.
¶ 51 Because not all jurors were clearly asked whether they both understood and accepted
each of the Zehr principles, we agree that error occurred. The question, then, is whether we
may consider this error under the plain error doctrine. As we noted earlier, the defendant
contends that plain error review is appropriate because the evidence in this case is closely
balanced. We do not agree.
¶ 52 A defendant seeking plain error review on the basis of closely balanced evidence has the
burden of persuading this court that the evidence is closely balanced enough to warrant such
review. Thompson, 238 Ill. 2d at 613; Piatkowski, 225 Ill. 2d at 567. This is a different
question from whether the evidence is sufficient to support a conviction beyond a reasonable
doubt. Piatkowski, 225 Ill. 2d at 566. The question is whether the evidence is so closely
balanced that “the error alone severely threatened to tip the scales of justice.” Sebby, 2017 IL
119445, ¶ 51.
¶ 53 Answering that question requires us to engage in a commonsense evaluation of the
evidence. Id. ¶ 53; Belknap, 2014 IL 117094, ¶ 50. We must consider the totality of the
evidence in the case. Sebby, 2017 IL 119445, ¶ 53. In evaluating the strength of that
evidence, we must consider both “the quantum and quality” of the evidence. See Piatkowski,
225 Ill. 2d at 571. Applying these principles to the case at hand, we are not convinced that
the evidence in this case was so closely balanced that the court’s error threatened to tip the
balance against the defendant.
¶ 54 The defendant argues that the evidence was closely balanced because the case came
down to a contest of credibility between the defendant and Stephanie. He argues that
Stephanie’s account should not be given more weight than his simply because it was repeated
through the testimony of Reeves and the recording of the forensic interview with Miller. See
People v. Boling, 2014 IL App (4th) 120634, ¶ 131. We are not persuaded.
¶ 55 Certain types of out-of-court statements by child witnesses in sexual abuse cases, such as
the statements Stephanie made to Reeves and Miller in this case, are admissible at trial
precisely because they constitute “reliable, corroborating evidence.” See People v. Bowen,
183 Ill. 2d 103, 114 (1998) (citing 725 ILCS 5/115-10 (West 1994)). Stephanie’s statement
to Reeves was an unprompted spontaneous outcry. Courts have found such statements to be
particularly reliable, especially when they are consistent with other statements made by the
child. See People v. Garcia, 2012 IL App (1st) 103590, ¶¶ 97-98. Courts likewise have
recognized the reliability of recorded statements made shortly after the original outcry, such
as Stephanie’s interview with Miller. See Bowen, 183 Ill. 2d at 115-16.
¶ 56 Here, Stephanie’s statements to Reeves and Miller were consistent with each other and
with Stephanie’s later trial testimony. Stephanie used age-appropriate language in describing
the defendant’s behavior, which is another indicator of reliability. See Garcia, 2012 IL App
(1st) 103590, ¶¶ 97, 99. Stephanie’s statement to Reeves was completely unprompted; it was
Stephanie, not Reeves, who initiated the discussion. Contrary to the defendant’s contention,
Stephanie’s statement to Miller alleging that the defendant put his fingers inside her vagina
was also unprompted. Although Miller asked Stephanie earlier in the interview whether the
defendant had touched parts of her body other than her hand, Miller never asked about
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penetration. Moreover, when Stephanie volunteered that information, it was not in response
to a question about inappropriate touching; it was in response to a question about what the
defendant said to her while he was making her touch his penis. The spontaneity of these
statements is another indicator of reliability. See id. ¶ 99.
¶ 57 One further indication of the reliability of Stephanie’s statements is that she had no
motive to lie. See id. ¶ 97. The defendant argues that Stephanie had a motive to make up a
story about him so that she could be sent to live with her father instead of her mother. That
way, she would no longer have to move around so much, something she testified she did not
like doing. We do not find it plausible to believe that an eight-year-old child could think
through the multiple layers of cause and effect necessary to contrive such a plan, however.
Moreover, the evidence showed that Stephanie liked having the defendant in her life; she just
wanted the incidents of sexual abuse to stop.
¶ 58 It is also worth noting that both statements were admitted into evidence only after the
trial court held a hearing to determine whether they had sufficient indicia of reliability. See
725 ILCS 5/115-10(b)(1) (West 2012). We find that Stephanie’s statements constituted
strong corroborating evidence for her testimony.
¶ 59 In addition, when asked at trial to describe what the defendant’s penis felt like, Stephanie
used very childlike language to accurately describe an erection, masturbation, and
ejaculations, things she clearly would have had no understanding of. This lent additional
credence to her testimony.
¶ 60 This does not end our inquiry, and we emphasize that our holding should not be read to
suggest that the evidence may never be closely balanced in cases where a child’s allegations
of abuse are corroborated by out-of-court statements that have been found to be reliable. As
noted earlier, we must consider both the quantum and quality of the evidence as a whole in
making that determination. See Sebby, 2017 IL 119445, ¶ 53; Piatkowski, 225 Ill. 2d at 571.
Here, most of the defendant’s evidence did not contradict Stephanie’s statements. The
defendant and his witnesses confirmed that the family moved many times and that Stephanie
had a good relationship with the defendant. Although the defense witnesses all stated that
they never witnessed abuse, Stephanie stated that the abuse only occurred when no one else
was present, something that makes sense in light of the nature of her allegations. The only
evidence that directly contradicted Stephanie’s account was the defendant’s own assertion
that he did not molest her. While most of the defendant’s testimony was not inherently
implausible or internally inconsistent (see Boling, 2014 IL App (4th) 120634, ¶ 131), his
claim that he was rarely alone with his stepdaughter was not particularly credible in light of
his contrary testimony that he was able to be home to care for her when he was laid off from
work.
¶ 61 Finally, we reiterate that the question before us is not merely whether the evidence was
close, but whether it was so closely balanced that “the error alone severely threatened to tip
the scales of justice” against the defendant. Sebby, 2017 IL 119445, ¶ 51. Put another way,
the question is whether “ ‘the jury’s guilty verdict may have resulted from the error and not
the evidence.’ ” Boling, 2014 IL App (4th) 120634, ¶ 130 (quoting People v. Herron, 215 Ill.
2d 167, 178 (2005)). In light of the strength of the State’s evidence and the weakness in the
one piece of evidence that contradicts it, we cannot find that the evidence in this case is so
closely balanced that the court’s error during voir dire could have tipped the balance against
the defendant or led to the guilty verdict in this case. We also note that the potential impact
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of the court’s error was minimized by the fact that the defendant did present evidence and
testify on his own behalf. We therefore decline to consider his claim under the plain error
doctrine.
¶ 62 For the foregoing reasons, we affirm the defendant’s conviction.
¶ 63 Affirmed.
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