People v. Filipiak , 2023 IL App (3d) 220024 ( 2023 )


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    2023 IL App (3d) 220024
    Opinion filed October 27, 2023
    ____________________________________________________________________________
    IN THE
    APPELLATE COURT OF ILLINOIS
    THIRD DISTRICT
    2023
    THE PEOPLE OF THE STATE OF                         )       Appeal from the Circuit Court
    ILLINOIS,                                          )       of the 18th Judicial Circuit,
    )       Du Page County, Illinois,
    Plaintiff-Appellee,                        )
    )       Appeal No. 3-22-0024
    v.                                         )       Circuit No. 18-CF-2506
    )
    STEPHAN J. FILIPIAK,                               )       Honorable
    )       Michael W. Reidy,
    Defendant-Appellant.                       )       Judge, Presiding.
    __________________________________________________________________________
    JUSTICE BRENNAN delivered the judgment of the court, with opinion.
    Justices McDade and Albrecht concurred in the judgment and opinion.
    __________________________________________________________________________
    OPINION
    ¶1          Defendant, Stephan J. Filipiak, appeals from his convictions for predatory criminal sexual
    assault of a child against two child victims. Defendant argues initially that his conviction as to one
    of the victims must be reversed because he was denied his right to a unanimous verdict where the
    indictments, jury instructions, and verdict forms failed to differentiate between the two counts that
    related to that same victim, rendering it impossible to ascertain on which of the two offenses the
    jury acquitted defendant. Arguing that double jeopardy then precludes retrial as to these unanimity
    of verdict counts, defendant asks that we vacate the unauthorized sentence of mandatory natural
    life as to the unrelated victim’s count and remand for resentencing. We reverse in part, vacate in
    part, and remand for resentencing.
    ¶2                                           I. BACKGROUND
    ¶3          Defendant was charged with three counts of predatory criminal sexual assault of a child
    (720 ILCS 5/11-1.40(a)(1) (West 2018)) for acts alleged to have been committed on October 6,
    2018, during a sleepover at defendant’s house. Counts I and III were alleged to have been
    committed against Br.G., and count II was alleged to have been committed against Br.G.’s sister,
    Be.G. Counts I and III were charged identically, except count III stated it was “a different act than
    alleged in Count [I].”
    ¶4          The case proceeded to a jury trial on October 5, 2021. Br.G.’s videotaped victim sensitive
    interview from October 17, 2018, was admitted at trial pursuant to section 115-10 of the Code of
    Criminal Procedure of 1963 (725 ILCS 5/115-10 (West 2020)). During the interview, Br.G. was
    asked if she knew why she was being interviewed. Br.G. pointed to her pelvis, indicating that
    defendant had touched her there. Br.G. explained how, on the night of the sleepover, she was
    sleeping on the couch when defendant woke her, placed his finger under her shirt, and touched
    inside her vagina. She was not wearing any underwear at the time. She also stated that, before the
    couch incident, she took a shower with defendant’s assistance and defendant also digitally
    penetrated her vagina.
    ¶5          The parties stipulated that during a subsequent recorded interview on August 5, 2021, Br.G.
    stated that defendant did not enter the shower and did not touch her on the couch.
    ¶6          At the time of her trial testimony, Br.G. was eight years old. She testified at trial that during
    a sleepover at defendant’s home, she was changing in the bedroom after showering when defendant
    entered the room and digitally penetrated her vagina. Later that night, Br.G. fell asleep on a couch
    2
    and was awakened by defendant and digitally penetrated again. Br.G. further testified she did not
    remember recanting her statements during the August 5, 2021, interview.
    ¶7             Be.G. was 10 years old at the time of trial and testified that defendant digitally penetrated
    her in the shower the night of the sleepover.
    ¶8             Defendant testified that he did wake Br.G. to take a shower but did not inappropriately
    touch her. Br.G. and Be.G. were showering together when defendant realized they did not have
    clean clothes or towels. Defendant entered the bathroom with permission from their father. When
    he entered, he noticed the children were not standing under the water spray, so he pointed the
    showerhead to spray them before leaving. After they finished their shower, they went to watch
    television in the bedroom. Eventually, Br.G. returned to the living room, and defendant went to
    his bedroom. Defendant testified that he did not touch either Br.G. or Be.G. inappropriately.
    ¶9             The jury was given forms for all three counts, indicating that it could find defendant guilty
    or not guilty of predatory criminal sexual assault of a child. The verdict form for count I stated,
    “finger in vagina-1-[Br.G.],” and the verdict form for count III stated, “finger in vagina-2-[Br.G.].”
    No jury instructions were given as to the difference between the two counts, and the jury was not
    instructed that they needed to be unanimous as to specific conduct for each count. The State
    referred to the alleged post-shower and couch conduct in its closing argument but did not clarify
    which count related to which conduct. The jury found defendant guilty as to counts I and II but not
    guilty as to count III.
    ¶ 10           Defendant filed several posttrial motions, including a motion to vacate the finding of guilt
    notwithstanding the verdict, but did not specifically raise an unanimity of verdict argument. The
    court denied the posttrial motions and sentenced defendant to natural life in prison, pursuant to
    section 11.1.40(b)(1.2) of the Criminal Code of 2012 (720 ILCS 5/11-1.40(b)(1.2) (West 2014)
    3
    (mandating natural life sentence where defendant convicted of predatory criminal sexual assault
    of two or more persons)). Defendant’s motion to reconsider the sentence was denied.
    ¶ 11                                            II. ANALYSIS
    ¶ 12           On appeal, defendant argues he was denied his right to a unanimous jury verdict.
    Specifically, defendant contends that, because the State failed to adequately distinguish between
    counts I and III, his acquittal on count III makes it impossible to tell if the jury unanimously
    convicted him of specific conduct. Defendant acknowledges that he did not preserve this issue for
    appeal and asks that we review the matter pursuant to the plain error doctrine. “[T]he plain-error
    doctrine bypasses normal forfeiture principles and allows a reviewing court to consider
    unpreserved error when either (1) the evidence is close, regardless of the seriousness of the error,
    or (2) the error is serious, regardless of the closeness of the evidence.” People v. Herron, 
    215 Ill. 2d 167
    , 186-87 (2005). It is necessary to determine first whether the verdict forms created a jury
    unanimity issue, as there can be no plain error if there is no error. See People v. Johnson, 
    218 Ill. 2d 125
    , 139, 141-42 (2005).
    ¶ 13           “The test of the sufficiency of a verdict is whether the jury’s intention can be ascertained
    with reasonable certainty from the language used.” People v. Mack, 
    167 Ill. 2d 525
    , 537 (1995).
    “In determining the meaning of a verdict, all parts of the record will be searched and interpreted
    together.” People v. Caffey, 
    205 Ill. 2d 52
    , 121 (2001). The parties have not provided us with, and
    we are not aware of, any controlling case law directly addressing this situation. However, we find
    People v. Smith, 
    233 Ill. 2d 1
     (2009), People v. Scott, 
    243 Ill. App. 3d 167
     (1993), and cases from
    other jurisdictions instructive.
    ¶ 14           In Scott, defendant was charged with three counts of delivering a controlled substance to
    three different undercover officers at separate times, but only a single verdict form was presented
    4
    to the jury. Scott, 243 Ill. App. 3d at 168-69. The court determined this was error because it was
    possible
    “that only four jurors believed that defendant was guilty of delivering a controlled
    substance to one of the officers, four other jurors believed that defendant was
    guilty of delivering a controlled substance to another officer and the remaining
    four jurors believed that defendant was guilty of delivering a controlled substance
    to the third officer.” Id. at 169.
    That possibility permitted “a unanimous guilty verdict to have been rendered without all 12 jurors
    agreeing that defendant delivered a controlled substance to a particular recipient as set forth in
    each count of the indictment.” Id.
    ¶ 15          In Smith, a general verdict form was provided to the jury, allowing them to find defendants
    guilty of murder if they found any one of the theories alleged in the indictment, which included
    intentional, knowing, and felony murder. Smith, 
    233 Ill. 2d at 26-27
    . The court concluded that
    “where *** it is impossible to tell from the general verdict whether defendant was
    actually convicted on each count in the indictment, it is error for the trial courts to
    make that presumption. Therefore, *** because defendants were sentenced based
    on the presumption that they were found guilty of intentional murder, defendants
    were prejudiced ***.” (Emphases in original.) 
    Id. at 27
    .
    ¶ 16          Here, we cannot reasonably ascertain the jury’s intention from the verdicts and record.
    Defendant was indicted for two counts of predatory criminal sexual assault of a child as to Br.G.
    The indictments alleged identical acts of sexual penetration, describing them as follows. Count I
    alleged that defendant “placed his finger in the vagina of [Br.G].” Count III alleged that defendant
    “placed his finger in the vagina of [Br.G], said act being a different act than alleged in Count [I].”
    5
    At trial, the State presented evidence that defendant digitally penetrated Br.G twice on the evening
    of October 6, 2018: once proximate to taking a shower, and once while on the couch. Two sets of
    identical verdicts forms were submitted to the jury pertaining to the predatory criminal sexual
    assault charges for Br.G., which were not differentiated, except with parentheticals indicating (“1”)
    and (“2”). Nor did the State in any way suggest to the jury at closing which of the verdict forms
    pertained to which of the alleged acts of penetration. We are therefore incapable of ascertaining
    with reasonable certainty whether the jury intended to convict defendant of the shower conduct
    while acquitting him of the couch conduct or vice versa. See Mack, 167 Ill. 2d at 537. Indeed, just
    as with the concern raised in Scott, the jury could have rendered a guilty verdict without actual
    unanimity.
    ¶ 17           The State does not argue on appeal that the record somehow informs which of the verdict
    forms apply to the specific acts testified to at trial. Instead, the State argues that the jury presumably
    understood that each verdict was for a specific offense and knew they needed to be unanimous in
    rendering a verdict as to a specific offense. We reject this argument for the reasons outlined above
    and, in addition, note that here the jury was not instructed that it needed to be unanimous as to
    specific conduct. See, e.g., Harp v. Commonwealth, 
    266 S.W.3d 813
    , 818 (Ky. 2008) (“ ‘[W]hen
    the evidence is sufficient to support multiple counts of the same offense, the jury instructions must
    be tailored to the testimony in order to differentiate each count from the others.’ ” (quoting Bell v.
    Commonwealth, 
    245 S.W.3d 738
    , 744 (Ky. 2008))). Moreover, while the State correctly observes
    that general verdict forms are permitted and do not require the jury to agree upon a specific incident
    to sustain a conviction, general verdict forms were not submitted to the jury here. The State cannot
    submit multiple nongeneral verdict forms, exposing defendant to increased criminal liability, and
    then claim the jury was not required to agree upon a specific act to sustain the conviction. See,
    6
    e.g., State v. Marcum, 
    480 N.W.2d 545
    , 552 (Wis. Ct. App. 1992) (“Having charged three separate
    acts, [the State] was bound to prove *** each charge. It could not use the volitional act of one
    charge as an alternative means for a guilty verdict on another charge.”).
    ¶ 18          To avoid the unanimity issue here, the State could have specified in the verdict forms which
    count related to which specific conduct, e.g., (“couch”) and (“shower”). The failure to somehow
    distinguish the two charges for the jury’s deliberation, however, makes it impossible to reasonably
    ascertain whether the jury unanimously decided whether either offense was committed by
    defendant.
    ¶ 19          As indicated previously, though the jury unanimity issue was not preserved, the plain-error
    doctrine bypasses normal forfeiture principles when either (1) the evidence is close, regardless of
    the seriousness of the error, or (2) the error is serious, regardless of the closeness of the evidence.
    Herron, 
    215 Ill. 2d at 186-87
    . An error under the second prong of the plain error doctrine has been
    equated with structural error or a “systemic error which serves to ‘erode the integrity of the judicial
    process and undermine the fairness of the defendant’s trial.’ ” People v. Glasper, 
    234 Ill. 2d 173
    ,
    197-98 (2009) (quoting Herron, 
    215 Ill. 2d at 186
    ). “[T]he right to a unanimous verdict is among
    the most fundamental of rights in Illinois.” People v. McGhee, 
    2012 IL App (1st) 093404
    , ¶ 24.
    “[A] verdict lacking juror unanimity is ‘structural error subject to automatic reversal.’ ” People v.
    Jackson, 
    2022 IL 127256
    , ¶ 47 (quoting People v. 
    Thompson, 238
     Ill. 2d 598, 610 (2010)).
    ¶ 20          The parties agree that our holding on the unanimity issue necessitates the reversal of
    defendant’s conviction on count I and remand of the cause for resentencing as to count II. Double
    jeopardy precludes the State from retrying either count I or III. The double jeopardy clause of the
    fifth amendment provides that no person shall “be subject for the same offence to be twice put in
    jeopardy of life or limb.” U.S. Const., amend. V; see also Ill. Const. 1970, art. I, § 10. “The
    7
    prohibition against double jeopardy ‘protects against three distinct abuses: (1) a second
    prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after
    conviction; and (3) multiple punishments for the same offense.’ ” People v. Henry, 
    204 Ill. 2d 267
    ,
    283 (2003) (quoting People v. Placek, 
    184 Ill. 2d 370
    , 376-77 (1998)). “[T]he law attaches
    particular significance to an acquittal.” United States v. Scott, 
    437 U.S. 82
    , 91 (1978). Because
    defendant was tried and acquitted on count III under circumstances where we cannot ascertain
    which offense the acquittal pertains to, retrying defendant for either offense would violate the
    double jeopardy clause.
    ¶ 21                                          III. CONCLUSION
    ¶ 22          The judgment of the circuit court of Du Page County as to count I is reversed; the sentence
    as to count II is vacated and remanded for resentencing.
    ¶ 23          Reversed in part, vacated in part, and remanded.
    8
    People v. Filipiak, 
    2023 IL App (3d) 220024
    Decision Under Review:        Appeal from the Circuit Court of Du Page County, No. 18-CF-
    2506; the Hon. Michael W. Reidy, Judge, presiding.
    Attorneys                     James E. Chadd, Santiago A. Durango, Thomas A. Karalis, and
    for                           Amber Hopkins, of State Appellate Defender’s Office, of Ottawa,
    Appellant:                    for appellant.
    Attorneys                     Robert B. Berlin, State’s Attorney, of Wheaton (Lisa Anne
    for                           Hoffman and Kristin M. Schwind, Assistant State’s Attorneys, of
    Appellee:                     counsel), for the People.
    9
    

Document Info

Docket Number: 3-22-0024

Citation Numbers: 2023 IL App (3d) 220024

Filed Date: 10/27/2023

Precedential Status: Precedential

Modified Date: 10/27/2023