People v. Dixon

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except
in the limited circumstances allowed under Rule 23(e)(1).
2023 IL App (3d) 210060-UOrder filed August 11, 2023.
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2023
PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court
) of the 10th Judicial Circuit,
Plaintiff-Appellee, ) Peoria County, Illinois.
)
v. ) Appeal No. 3-21-0060
) Circuit No. 16-CF-143
VERONICA R. DIXON, )
) The Honorable Paul Gilfillan,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
JUSTICE McDADE delivered the judgment of the court.
Justices Davenport and Hettel concurred in the judgment.
____________________________________________________________________________
ORDER
¶1 Held: The trial court properly dismissed defendant’s pro se postconviction
petition at the first stage because she failed to establish any prejudice from
(1) appellate counsel’s failure on direct appeal to argue the insufficiency
of the State’s evidence; and (2) the absence of a Prim instruction in
response to a note from the jury suggesting that it was approaching an
impasse when the trial court did not abuse its discretion in deciding when
to issue that instruction.
¶2 Defendant, Veronica Dixon, was convicted of criminal sexual assault and aggravated
sexual abuse for having sex with a minor student, and her convictions were upheld on direct
appeal. In a pro se postconviction petition, she alleged that her appellate counsel provided
ineffective assistance by failing to argue on direct appeal that the State had not carried its burden
of proof because the evidence failed to establish her guilt beyond a reasonable doubt. She also
asserted that the trial court erroneously responded to a note from the jury that suggested a
deadlock and that defense counsel was ineffective for failing to object to that response or to offer
an alternative response. The trial court summarily dismissed her petition at the first stage of the
postconviction proceedings. We affirm.
¶3 I. BACKGROUND
¶4 Defendant was a 28-year-old schoolteacher when she was charged in 2016 with one
count of criminal sexual assault and one count of aggravated sexual abuse based on allegations
of sexual conduct with one of her students, D.D., who was then 14 or 15 years old. During
defendant’s February 2017 trial in Peoria County circuit court, the State presented testimony
from several witnesses, including D.D.’s mother. She testified that defendant was the homeroom
teacher for D.D. and two of her other children, daughters R.D. and T.D. D.D. also testified,
explaining that he knew defendant from speaking to her when picking up his sisters before he
transferred to her class in January 2016. He recounted how defendant asked him to go jogging
with her one day after school and stated that he also knew she dreaded hair and asked for her
phone number because he was interested in making an appointment. After defendant added the
Text Now application to her cellphone at D.D.’s suggestion, the two stayed in touch through text
messages and calls.
¶5 Shortly before his fifteenth birthday in January 2016, D.D. texted defendant suggesting
that she pick him up at his cousin’s house and take him to her home, although he was unable to
find that text among the State’s trial exhibits. He testified that the two met to have sex. When
they arrived at defendant’s home, they kissed in the kitchen while defendant’s children were in
2
her bedroom. D.D. and defendant then moved to her son’s bedroom, which she opened with a
screwdriver because the doorknob was missing. They engaged in oral and vaginal sex before
having dinner with defendant’s children. After that, defendant drove D.D. home. D.D. testified
that he was in love with defendant and referred to her as his girlfriend in text messages. In her
responses, defendant stated that she loved him, too.
¶6 In mid-January, D.D. revealed to his stepfather that he had had sex with defendant. At the
time, the stepfather believed that D.D. “was probably just, you know, a child playin’, want to
play Mr. Big Guy or something.” On January 25, however, the stepfather answered a cellphone
used by D.D. and recognized defendant’s voice. D.D.’s mother then examined the phone and
found several text messages between D.D. and defendant. Although she knew that defendant had
previously taken some of her other children roller skating and that they had helped her grade
papers, she did not know that her children had ever been to defendant’s house or that D.D. and
defendant had been communicating outside of school. The mother testified that the texts she
found included defendant’s name and talked about defendant “loving” D.D. “Him loving her.
Picking him up.” After finding those messages, the mother sent defendant a text from D.D.’s
phone. Defendant answered by asking why their phone call had been cut short. When the mother
stated that defendant was talking to D.D.’s mother, defendant stopped responding and instead
called D.D.’s 12-year-old sister, R.D., who put the call on speakerphone.
¶7 During that January 25 call, defendant said that D.D. was “tripping” and that he “knows
he cannot tell people what was going on.” She also sent texts to R.D. saying that she was
“scared” after the text exchange with his mother. R.D. testified to seeing other texts that referred
to D.D. and defendant having sex, but she believed that D.D. had deleted them “because he
3
didn’t want [defendant] to get in trouble.” The next day, mother took four of the cellphones used
by her children to the police, but D.D. refused to accompany her.
¶8 At the police station, the mother met with Detective Robert Vasquez, who copied the
texts on D.D.’s phone and took a screenshot of the following text exchange between R.D. and
defendant:
“Defendant: Yo [sic] mom just texted me
R.D.: What She Say ?
Defendant: Nothin [sic] just said this his mom thats [sic] all
R.D.: Awe [100 and OK sign]
Defendant: Lol aw
R.D.: Yeah Wyd? [What are you doing?]
Defendant: Idk [I don’t know] I’m scared now Homework with my
son.”
Detective Vasquez testified that he saw numerous text communications on the phone that
occurred over several days. Those messages included references to defendant as D.D.’s “bae,”
meaning his “girlfriend” or “before all else,” and stating how much they loved and missed each
other. One message from January 13, 2016, stated:
“Defendant: See u tmrw [tomorrow]
D.D.: Ight Bae [all right, girlfriend]
Defendant: LOL Dnt u got hmwk?
D.D.: Nope
Defendant: Yes u do!
4
D.D.: Nah I don’t”
The following night, D.D. sent defendant another message:
“D.D.: Bae
Defendant: Quit playin [sic] with me
D.D.: Wat [sic] u mean quit playing bae u know I wanna f***
again nd [sic] call me.”
Two hours later, defendant initiated another text exchange with D.D.:
“D.D.: Hi
Defendant: Wats [sic] up
D.D.: Nun [nothing] missing u hbu [how about you]
Defendant: Just tired missin [sic] the old u
D.D.: Aww well u will see him again tm [tomorrow]
Defendant: I sholl [sic] will b waitin [sic]
D.D.: Lol u so goffy [sic] veronica
Defendant: Wat [sic] an ugly name lol
D.D.: Nah its cute for u
Defendant: Nah im [sic] coo [sic]
D.D.: Lol
Defendant: I gotta go! [hand making a peace sign]
D.D.: Otay [sic] luv [sic] u
Defendant: Luv [sic] u 2
D.D.: Awww
5
Defendant: Gn [goodnight]
D.D.: Nah don’t go to sleep bae
Defendant: 2 tired hurt
D.D.: Bae nvm [never mind] gn luv u
Defendant: Luv u
D.D.: Ilym [I love you more]”
¶9 The text stream between defendant and D.D. continued for several more days, ending
after D.D’s mother took him to the police station on January 25. At that time, D.D. told police
about his sexual relationship with defendant and showed them where she lived.
¶ 10 After obtaining a search warrant, the police seized three cellphones and an Apple iPad
from defendant’s house. The police later copied the data from the equipment and generated some
reports. Their investigation revealed the Text Now application had been installed on defendant’s
phone on January 10, 2016, and deleted on January 25, 2016, and that all the Text Now messages
on her phone had also been deleted. The reports and transcripts of the text messages were
admitted into evidence by the State.
¶ 11 In her case, defendant introduced testimony from another student who was in her
homeroom at the time the texts with D.D. were sent. That student stated he installed an
application called Betternet on defendant’s tablet in mid-January after her phone broke. He
explained how she helped him with homework after school, sometimes at his home, when he was
struggling and gave him a ride home from school. When students in her class misbehaved, he
described how she would tell them that “she love us and we can do better and stop acting hard-
headed.” Defendant’s co-teacher testified that, when necessary, she permitted students to use her
cellphone.
6
¶ 12 Defendant also took the witness stand and denied any inappropriate conduct with D.D.
As part of her teaching model, she tried to work with students so they would remain in school
instead of sending them for disciplinary action. She also engaged with students after school,
playing basketball, jogging, and coaching basketball with students. Sometimes she took students
roller skating and to basketball games. At times, she also took them to her home for snacks; she
admitted that she did not obtain prior parental consent.
¶ 13 Defendant described how D.D. became one of her students in January 2016 after failing
to pass seventh grade. Before D.D. was her student, she already knew him from teaching his
sisters. On his first day in class with defendant, D.D. asked for her business card because he
wanted to get his hair done for his upcoming birthday. He subsequently began to flirt with her
and call her “bae,” which she said she told him was not appropriate. He also began to text her,
even though she knew it was contrary to school policy to have electronic communication with
students on school equipment. She testified that she had offered to go jogging with students in
her class after school, but D.D. was the only student who joined her. After her phone broke, she
had another student install a phone application on her tablet and later allowed D.D. to use her
new phone during class. D.D. and defendant also became Facebook friends.
¶ 14 In her testimony, defendant acknowledged that D.D. came to her house on January 14,
but she claimed that he was there to have his hair done. She described putting dinner in the oven
after arriving home and then tending to her young children. She recounted helping her daughter
get out of her son’s room, where she was trapped, by using a detached doorknob, not a
screwdriver as D.D. had testified. When defendant’s boyfriend texted her asking for a ride, she
left to pick him up. She explained that her boyfriend’s text message may not have been
recovered due to the type of phone plan he had. When D.D. texted her later that day suggesting
7
that they have sex again, defendant did not respond. She did not report the message to the school,
claiming at trial that she was afraid he would be expelled if she did.
¶ 15 Defendant also explained that she was attempting to reschedule D.D.’s hair appointment
when she reached his mother on his phone. She deleted the Text Now application from her phone
because she “panicked” and “knew what it looked like.” She admitted lying to police when she
said D.D. had never been to her house, suggesting that she lied because she “was scared. Like, I
had already been walked out of my job.”
¶ 16 In rebuttal, the State introduced additional testimony from Detective Vasquez about his
interview with defendant. The interview was videotaped; during it, defendant denied that D.D.
had ever come to her house or that she had sent him any text messages. The videotape also
included two references to a polygraph test. The jury saw six short video clips from the interview
that showed each of her denials, with the final clip showing defendant’s admission that D.D. had
indeed been to her home. The jury did not view the portions of the videotape that referred to a
polygraph test. The full three-hour video recording became State’s exhibit No. 10, but it was not
published to the jury.
¶ 17 Defendant was also interviewed by the Department of Children and Family Services
(DCFS). In that videotaped interview, she indicated that she had reported her boyfriend to police
for physical violence but he had not been arrested because the police did not believe her account.
¶ 18 During closing arguments, defendant’s counsel explained her conduct by claiming that
she was flirting with D.D. to keep him in school. On the third day of trial, the jury began to
deliberate around 1 p.m. and, within only a few minutes, sent a note requesting a transcript of
D.D.’s testimony, which was then provided. Around 3:30 p.m., the jury sent another note asking
to review the discs containing defendant’s phone data. After conferring with the parties, the trial
8
court responded that the relevant evidence on the discs, including the Text Now message logs,
had already been admitted through the trial testimony or had been given to the jury on paper. The
trial court encouraged the jurors to rely on their memories when considering the testimonial
evidence.
¶ 19 The jury later sent a third note indicating that it could be deliberating after 5 p.m. and
asking “[a]t what point do we decide to reconvene in the morning? We’ll continue to deliberate
in the meantime.” The court answered that “you may deliberate as late as you like. Let us know
when you reach a verdict.” Shortly before 6 p.m., the judge sent a note to the jury with three
options: (1) continue the deliberations and have dinner brought to them; (2) end the deliberations
for the night and return the next morning; or (3) continue the deliberations without stopping for
dinner. The jury chose the first option. Around 6:20 p.m., the jury sent a note requesting a
transcript of defendant’s testimony. The trial court responded that a transcript would take an hour
to prepare. The court told the parties that the jury would be retired for the night if it sent more
questions out after 7:30 p.m. and would reconvene the next morning to continue its deliberations.
¶ 20 Around 9:15 p.m., the judge told the parties the jury would be retired at 9:45 p.m. if it
had not yet concluded its deliberations. Defense counsel stated, ”Honestly, I wouldn’t have a
problem with just releasing them now. Just allow them to have a clean slate tomorrow morning
and get out of here.” When the jury was informed that it could deliberate until 9:45 p.m., it
returned a note stating, “[W]e believe we are at impasse where further deliberation will not lead
to a unanimous decision. The primary reason for this impasse is the point of reasonable doubt
and burden of proof by the State. Given this, we need direction on how to proceed or where
compromises are appropriate.” Recognizing the length of time that the jury had been
deliberating, the trial court remarked that a request for additional directions on how to
9
compromise “is not something the Court is going to address and not something that 12 tired
people should reasonably be expected to digest or add to their now nine and a half hours of
deliberation.” With the parties’ agreement, the trial court informed the jury that it would not be
given a definition of reasonable doubt and that the jury would be retired for the night. Jurors
were told to return to court by 10:15 a.m. to continue their deliberations and were instructed not
to discuss the case with anyone.
¶ 21 Shortly after the jury reconvened the next morning, it sent a note requesting records from
defendant’s phone that had been admitted as State’s exhibit No. 9. The court conferred with the
parties before responding that “the witness was questioned regarding Exhibit 9. However, as a
result of her responses to the questions, it was not necessary to admit Exhibit 9, although it could
be referred to.” At approximately 11:20 a.m., the jury reached a verdict, finding defendant guilty
of both criminal sexual assault and aggravated sexual abuse. At sentencing, the two counts were
merged; defendant was sentenced to four years in prison, with mandatory supervised release of
three years to life.
¶ 22 On direct appeal, defendant argued that she was denied a fair trial because the jury
received the full video of her DCFS and police interviews, which included references to a
polygraph test, a DCFS investigation, and her domestic abuse allegation. This court affirmed her
convictions. People v. Dixon, 2019 IL App (3d) 170245-U.
¶ 23 In October 2020, defendant filed a pro se postconviction petition alleging that the State
had not proven her guilty beyond a reasonable doubt and that her counsel on direct appeal was
ineffective for failing to raise that argument as well. She also asserted that the trial court’s
response to the jury’s note suggesting it was reaching an impasse was erroneous and that her trial
counsel was ineffective for failing to object to that response. The trial court summarily dismissed
10
her petition. Defendant filed a late pro se notice of appeal, which was allowed by this court.
While her appeal was before this court, defendant was represented by the office of the State
Appellate Defender.
¶ 24 II. ANALYSIS
¶ 25 In the instant appeal, we must consider whether the trial court erred in summarily
dismissing defendant’s pro se postconviction petition during first stage postconviction
proceedings. Defendant’s pro se petition alleged that her appellate counsel provided ineffective
assistance on direct appeal by failing to raise: (1) the sufficiency of the evidence and (2) the
flawed responses of both the trial court and defense counsel to the jurors’ note asserting their
possible deadlock.
¶ 26 At the initial stage of postconviction proceedings, the trial court must accept the truth of
the petition’s allegations and decide whether it “ ‘is frivolous or is patently without merit.’ ”
People v. Hodges, 234 Ill. 2d 1, 10 (2009) (quoting 725 ILCS 5/122-2.1(a)(2) (West 2006)). To
avoid summary dismissal, the petition “must set forth some facts which can be corroborated and
are objective in nature or contain some explanation as to why those facts are absent.” People v.
Delton, 227 Ill. 2d 247, 255 (2008). This court reviews the summary dismissal of a
postconviction petition de novo. People v. Knapp, 2020 IL 124992, ¶ 39.
¶ 27 Although any issue that could have been raised on direct appeal, but was not, is generally
forfeited, the forfeiture doctrine is relaxed if the postconviction petition asserts ineffective
assistance by both trial counsel and by appellate counsel for not raising the issue on direct
appeal. People v. English, 2013 IL 112890, ¶ 22. To establish ineffective assistance of counsel,
the defendant must make a two-part showing, demonstrating that (1) appellate counsel’s
performance was deficient and (2) but for counsel’s errors, a reasonable probability exists that
11
defendant would have prevailed on appeal. Strickland v. Washington, 466 U.S. 668, 694 (1984);
People v. Albanese, 104 Ill. 2d 504, 526 (1984). “The Strickland standard applies equally to
claims of ineffective appellate counsel, and a defendant raising such a claim must show both that
appellate counsel’s performance was deficient and that, but for counsel’s errors, there is a
reasonable probability that the appeal would have been successful.” People v. Petrenko, 237 Ill.
2d 490, 497 (2010) (citing People v. Golden, 229 Ill. 2d 277, 283 (2008)).
¶ 28 Appellate counsel’s performance will not be deemed deficient merely because counsel
failed to raise “every conceivable issue on appeal,” however, counsel is expected to “exercise
professional judgment to select from the many potential claims of error that might be asserted on
appeal.” People v. Williams, 209 Ill. 2d 227, 243 (2004). A defendant’s showing of a “reasonable
probability” that the outcome of the case would have been different but for counsel’s error is
insufficient to avoid first-stage dismissal if that showing is based on speculation. People v.
Viramontes, 2017 IL App (1st) 160984, ¶ 53. If a defendant fails to establish prejudice, the
reviewing court need not consider the reasonableness of counsel’s professional performance.
People v. Wilson, 2014 IL App (1st) 113570, ¶ 46.
¶ 29 A. The Sufficiency of the Evidence
¶ 30 Defendant argues that appellate counsel provided ineffective assistance on direct appeal
by failing to assert the insufficiency of the evidence to prove her guilty beyond a reasonable
doubt, as mandated by due process (U.S. Const., amend. V, XIV; Ill. Const. 1970, art. I, § 2).
When reviewing the merits of a defendant’s reasonable doubt argument, we consider whether
any rational factfinder could have found that the essential elements of the offense had been
established beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); People v.
Collins, 106 Ill. 2d 237, 261 (1985). We may reverse a conviction only if the evidence, when
12
viewed in the light most favorable to the State, is so unreasonable, improbable, or unsatisfactory
that it creates reasonable doubt about the defendant’s guilt. People v. Evans, 209 Ill. 2d 194, 209
(2004). Accordingly, the effectiveness of appellant’s counsel relies on the viability of
defendant’s claim that the State’s evidence was insufficient to support a constitutionally valid
conviction.
¶ 31 Defendant initially contends that the evidence against her “was far from overwhelming,”
asserting that D.D.’s testimony was “incredible” and that her text messages with him failed to
show any sexual conduct. She adds that D.D.’s family had a financial motive for asserting the
sexual assault because the family had filed a civil case against the school district on that basis.
¶ 32 In support of her claim that D.D.’s account was “incredible,” defendant cites his
testimony that the assault occurred while her children were in the house watching television. She
asserts that “it was contrary to human experience that [she] would bring D.D. to her home in
order to have sex with him when her son was in a nearby room and of an age to report to other
people, particularly to [defendant’s] boyfriend, who also lived in the home,” citing People v.
Shaw, 2015 IL App (1st) 123157, ¶ 29 (reversing a conviction supported by evidence deemed
“improbable, unconvincing, and contrary to human experience”). We find that the facts in Shaw
are distinguishable.
¶ 33 In Shaw, the State relied on the victim’s testimony and some surveillance video. The
victim insisted at trial that the defendant had a gun during the armed robbery, describing the
weapon in great detail, and reciting how the defendant pressed it into his side. When the
defendant was captured shortly after the alleged robbery, however, the police did not find a gun
or the money allegedly taken from the victim. Surveillance video that captured the majority of
the incident failed to show a gun, suggesting that if the defendant had a gun, he must have
13
disposed of it during one of three brief episodes during which the defendant was out of camera
range. With the exception of the final two minutes before his apprehension, the defendant was
either beside the victim or on camera. The victim, however, never saw the defendant dispose of
either the gun or the money.
¶ 34 After reviewing the evidence and the victim’s inconsistent statements, the appellate court
found that “[n]o reasonable person could conclude beyond a reasonable doubt that Shaw
discarded a gun during either of these periods when he had neither opportunity nor motivation to
do so.” Id. at ¶ 24. “Viewing the interactions captured by the surveillance video, [the victim’s]
various statements to the officers and his explanation of events at trial simply were too
improbable, unconvincing, and contrary to human experience to sustain the conviction.” Id. at ¶
29. Our review of the record in the instant case reveals that the State’s evidence against
defendant was far more persuasive.
¶ 35 Although defendant points to conflicting evidence about the events surrounding the
offense, which left some uncertainty about whether her children were in the car when she drove
D.D. to her house and how she opened the door to her son’s room, those minor points do not
undermine the substance of D.D.’s testimony. It is within the exclusive province of the jury to
assess the credibility of the witnesses, decide the weight due to each witness’s testimony, resolve
any evidentiary conflicts, and draw reasonable inferences based on the evidence. On review, the
jury’s credibility decisions are given great weight. “ ‘In cases where the evidence is close ***,
where findings of fact must be determined from the credibility of the witnesses, a court of review
will defer to the trial court’s factual findings unless they are against the manifest weight of the
evidence.’ Kalata v. Anheuser-Busch Cos., 144 Ill. 2d 425, 433 (1991); see also Hartrich, 2018
IL 121636, ¶ 13 (citing Kalata, 144 Ill. 2d at 433).” People v. Swenson, 2020 IL 124688, ¶ 36.
14
“[T]he testimony of just one credible witness is sufficient for conviction.” Id. (quoting City of
Chicago v. Morris, 47 Ill. 2d 226, 230 (1970)).
¶ 36 Defendant maintains that the sufficiency of the evidence should have been raised on
direct appeal because appellate counsel should have “realized it was contrary to human
experience” to bring D.D. to her house, which she shared with her boyfriend and children, to
have sex, particularly when her children were home and D.D. had been in her class for only two
weeks. She insists “it is incredible to believe she would so recklessly embark on a sexual
relationship with a student she hardly knew when the consequences of such a relationship [were]
so dire.”
¶ 37 Because the trier of fact is far better positioned than this court to determine the credibility
and weight to be accorded to the witnesses’ testimony (People v. Jackson, 2020 IL 124112, ¶
69), we decline defendant’s invitation to deem D.D.’s testimony “incredible” and “contrary to
human experience” when the jury appears to have reached the opposite conclusion. We note that
inferences that could have been derived from defendant’s own testimony might have also
affected the jury’s evaluation of the parties’ relative credibility. Defendant testified that she often
transported students to activities in her personal car, and even took them to her own home for
snacks without their parents’ consent, or even knowledge. She also admitted to giving defendant
and other students access to her personal cellphone and tablet; one of her former students
testified that she sometimes told students in class that she loved them.
¶ 38 Moreover, despite recognizing the deep feelings that underpinned D.D.’s flirtations with
her, defendant engaged in frequent, highly personal, text and phone communications with him,
and they became social media friends, communications that she knew were against school
policy. She continued those activities even after D.D. began to refer to her openly as his “Bae,”
15
defined at trial as “a girlfriend,” or, more precisely, “before all else.” Finally, when D.D. sent a
text message expressing his interest in having sex with her “again,” defendant did not correct
him or discontinue her clandestine communications.
¶ 39 The jury was also free to assess defendant’s response to her subsequent interactions with
D.D.’s parents when considering her credibility. At trial, she acknowledged that D.D.’s
stepfather answered the phone when she called D.D.’s phone number to reschedule a hair
appointment. Although the stepfather had initially discounted D.D.’s confession, made only days
earlier, that he and defendant had had sex as “probably just, you know, a child playin’, want to
play Mr. Big Guy or something,” the phone call from defendant raised his level of concern.
When D.D.’s mother learned that defendant was communicating with him outside of school, she
immediately inspected his phone and discovered texts using defendant’s name that referred to
defendant “loving” D.D. “Him loving her. Picking him up.” D.D.’s mother then texted defendant
from his phone, and defendant immediately expressed confusion about why their prior phone call
had ended. In response, D.D.’s mother identified herself, and rather than explain that she was
simply setting up a hair appointment, defendant immediately ceased to respond. In lieu of
speaking to D.D.’s mother, defendant called his 12-year-old sister, R.D.
¶ 40 With her call to R.D. on speakerphone, defendant claimed that D.D. was “tripping” and
“knows he cannot tell people what was going on.” She followed up the call with a text to R.D.,
stating that defendant’s text exchange with D.D.’s mother had “scared” defendant. At trial,
defendant explained her subsequent deletion of the Text Now application, including her texts
with D.D., from her phone by saying that she “panicked” and “knew what it looked like.”
Similarly, she testified that she lied during her police interview by denying that D.D. ever been
to her house because she “was scared. Like, I had already been walked out of my job.”
16
¶ 41 Although defendant testified that she tried to work with students to keep them in school
rather than subjecting them to disciplinary action, a theme repeated in defense counsel’s closing
argument to explain her flirtations with D.D., jurors were free to draw reasonable inferences
from the witnesses’ testimony in light of their own experience when making credibility
determinations. See People v. Hopp, 209 Ill. 2d 1, 17 (2004) (stating that “[j]urors are not
required to set aside the observations and inferences that they would ordinarily make”). We
conclude it was not unreasonable or against the manifest weight of the evidence for the jury to
credit D.D.’s consistent account over defendant’s testimony. See Swenson, 2020 IL 124688, ¶ 36
(stating the manifest weight of the evidence standard).
¶ 42 Moreover, we reject defendant’s contention that the jury erred by crediting D.D.’s
testimony because it was the result of “significant” “parental pressure” “to endorse the existence
of an improper relationship, even if one did not exist.” Defendant asserts that the pressure for
D.D. to accuse her grew after his family filed a civil suit against the school district based on the
sexual assault. The motives of D.D. and his family, however, were for the jury to consider in
light of the totality of the evidence before it since it was better able to observe the witnesses and
to assess the validity of their testimony. Jackson, 2020 IL 124112, ¶ 69 (leaving the assessment
of a witness’s motive to lie to the province of the jury).
¶ 43 Finally, defendant’s conviction did not hinge solely on the jury’s credibility findings. The
State also introduced transcripts of the text communications exchanged by defendant and D.D.
Detective Vasquez testified that he saw numerous text messages on D.D.’s phone between the
two, including one initiated by defendant on January 13 that referenced an upcoming meeting. It
read:
“Defendant: See u tmrw [tomorrow]
17
D.D.: Ight Bae [all right, girlfriend]
Defendant: Lol
D.D.: Wyd [what are you doing]
Defendant: Nothin [sic]
D.D.: Koo [sic] me too
Defendant: Dnt u got hmwk?
D.D.: Nope
Defendant: Yes u do!
D.D.: Nah I don’t”
¶ 44 On the evening of January 14, D.D. sent defendant a text message with some disturbing
content:
“D.D.: Bae
Defendant: Quit playin [sic] with me
D.D.: Wat [sic] u mean quit playing bae u know I wanna f***
again nd [sic] call me”
Two hours later, rather than correct the content of D.D.’s earlier message, defendant began the
following text exchange:
“Defendant: Wats [sic] up
D.D.: Nun [nothing] missing u hbu [how about you]
Defendant: Just tired missin [sic] the old u
D.D.: Aww well u will see him again tm [tomorrow]
Defendant: I sholl [sic] will b waitn [sic]
18
D.D.: LOL u so goffy [sic] veronica
Defendant: Wat [sic] an ugly name lol
D.D.: Nah its cute for u
Defendant: Nah im [sic] coo [sic]
D.D.: Lol
Defendant: I gotta go! [hand making a peace sign]
D.D.: Otay [sic] luv [sic] u
Defendant: Luv [sic] u 2
D.D.: Awww
Defendant: Gn [goodnight]
D.D.: Nah don’t go to sleep bae
Defendant: 2 tired hurt
D.D.: Bae nvm [never mind] gn luv u
Defendant: Luv u
D.D.: Ilym [I love you more]”
¶ 45 The next day, D.D. initiated yet another text stream with defendant:
“D.D.: Hey
Defendant: Wats [sic] up
D.D.: Wyd
Defendant: Chillin
D.D.: Wya [where are you]
Defendant: School Wya
19
D.D.: Home nd [sic] can u take me sumwhere [sic]
Defendant: Where
D.D.: On the hill U better not do nun [sic] wit [sic] him
Defendant: Lol I don’t mess with kids! Plus nobody crazy enough
to try me except u! I guess lol
D.D.: Yea Come get me bae”
¶ 46 Three days later, on January 18, defendant and D.D. started another text chat:
“Defendant: [missed call from Rinky Dink] [defendant’s Text Now
name]
Defendant: My bf [boyfriend] b [sic] around I cnt [sic] answer a lot
D.D.: Awe wya
Defendant: I jus [sic] got hme [sic]
D.D.: Koo [sic] bae wyd”
On January 23, D.D. began this exchange:
“D.D.: Gm [good morning] bae
Defendant: Gm wat [sic] u doin [sic]
D.D.: Missing u hbu [how about you]
Defendant: Jus [sic] layin here [sic] u aint [sic] missin [sic] me u
playin
D.D.: I’m dead ass bae Imu [I miss you] alot
Defendant: Imu 2 tho [sic] frfr [for real, for real]
D.D.: Aww but fr [for real] I wanna see u
20
Defendant: May b later 2day”
¶ 47 After reviewing the totality of the evidence in the light most favorable to the State as we
must (Evans, 209 Ill. 2d at 209), we conclude that it was not closely balanced as defendant
contends. Although credibility undoubtedly played an important role, the State’s case was not
simply a matter of “he said/she said.” The text exchanges between defendant and D.D. provided
critical documentary evidence to be considered by the jury, which was also free to draw
reasonable inferences from defendant’s conduct before and after being confronted by D.D.’s
parents and the police. We hold that the State’s evidence was not so unreasonable, improbable,
or unsatisfactory as to create a reasonable doubt about defendant’s guilt.
¶ 48 Because we reject defendant’s claim that the State’s evidence was insufficient to establish
her guilt beyond a reasonable doubt, she has failed to demonstrate that, but for appellate
counsel’s failure to raise that non-meritorious claim, a reasonable probability existed that she
would have won reversal of her convictions on appeal. See Strickland, 466 U.S. at 694 (stating
the relevant standard); Albanese, 104 Ill. 2d at 526 (adopting the Strickland standard in Illinois).
She has failed to establish any prejudice due to appellate counsel’s failure to raise that issue on
direct appeal. When defendant has not established prejudice, we need not examine her claim that
trial counsel’s professional performance was unreasonable. Wilson, 2014 IL App (1st) 113570, ¶
46.
¶ 49 B. Failure to Give a Prim Instruction
¶ 50 Next, we examine whether the trial court erred by summarily dismissing the portion of
defendant’s pro se postconviction petition asserting that appellate counsel provided ineffective
assistance on direct appeal by failing to raise the inadequate responses of the court and defense
counsel to a note sent by the jury during its deliberations. Defendant argues that the trial court
21
should have given the jury a Prim instruction after it submitted a note stating, “[W]e believe we
are at impasse where further deliberation will not lead to a unanimous decision. The primary
reason for this impasse is the point of reasonable doubt and burden of proof by the State. Given
this, we need direction on how to proceed or where compromises are appropriate.” She further
contends that defense counsel failed to provide effective assistance by neither objecting to the
trial court’s failure to give Prim instruction nor making a request for that instruction.
¶ 51 Since its adoption by our supreme court in People v. Prim, 53 Ill. 2d 62, 76-77 (1972),
the Prim instruction was enacted as Illinois Pattern Jury Instruction (IPI) 26.07. That instruction
states:
“26.07 Deadlocked Jury Supplemental Instruction
The verdict must represent the considered judgment of each juror.
In order to return a verdict, it is necessary that each juror agree thereto.
Your verdict must be unanimous.
It is your duty, as jurors, to consult with one another and to
deliberate with a view to reaching an agreement, if you can do so without
violence to individual judgment. Each of you must decide the case for
yourself, but do so only after an impartial consideration of the evidence
with your fellow jurors. In the course of your deliberations, do not hesitate
to reexamine your own views and change your opinion if convinced it is
erroneous. But do not surrender your honest conviction as to the weight or
effect of evidence solely because of the opinion of your fellow jurors, or
for the mere purpose of returning a verdict.
22
You are not partisans. You are judges–judges of the facts. Your
sole interest is to ascertain the truth from the evidence in the case.” Illinois
Pattern Jury Instructions, Criminal, No. 26.07 (approved July 16, 2014);
Prim, 53 Ill. 2d at 75-76.
¶ 52 After receiving the jury’s note, the fifth one sent that day, the trial court conferred with
the parties, who agreed that the jurors would not receive a definition of reasonable doubt and that
the court would retire them for the night, instructing them to return the next morning to continue
their deliberations. The trial court observed that it had previously instructed them that it would
not receive a definition of “reasonable doubt” because that was a question for them to resolve.
Referring back to the note, the court explained that “[t]o make inquiry along that line and seek
more directions or ask where compromises are appropriate [after 9:15 p.m.] is not something that
the Court is going to address and not something that 12 tired people should reasonably be
expected to digest or add to their now nine and a half hours of deliberation.”
¶ 53 Defendant asserts that the trial court’s response interfered with the jury’s deliberations
and may have resulted in juror coercion. People v. Ferro, 195 Ill. App. 3d 282, 292-93 (1990).
She maintains that the trial court arguably should have given the Prim instruction both that
evening before retiring the jury and the next morning before it resumed its deliberations “to
protect the jurors from undue coercion.” In her view, without a Prim instruction, any jurors who
did not agree with the majority “arguably never knew that they were not to ‘surrender your
honest conviction as to the weight or effect of evidence solely because of the opinion of your
fellow jurors, or for the mere purpose of returning a verdict” after deliberating for nine hours.
Hodges, 234 Ill. 2d at 17. If that instruction had been given, jurors who believed that the State
had not met its burden of proof “likely” would have continued in that belief because the evidence
23
was close. Accordingly, the trial court’s decision to adjourn the jury without giving the
instruction “arguably coerced the minority jurors to heed to the majority and reach a verdict”
when they continued their deliberations the next day, depriving defendant of a fair trial.
¶ 54 As defendant acknowledges, however, trial courts have discretion in determining how to
respond to jurors’ requests for clarification.
“[A] trial court may exercise its discretion and properly decline to answer
a jury’s inquiries where the instructions are readily understandable and
sufficiently explain the relevant law, where further instructions would
serve no useful purpose or would potentially mislead the jury, when the
jury’s inquiry involves a question of fact, or if the giving of an answer
would cause the court to express an opinion that would likely direct a
verdict one way or another.” People v. Tomes, 284 Ill. App. 3d 514, 518
(1996).
Conversely, judicial guidance that coerces a verdict “by prodding even a single juror into
surrendering views conscientiously held has been condemned as diluting the requirement of
unanimity.” People v. Anthony, 30 Ill. App. 3d 464, 467 (1975).
¶ 55 Defendant’s argument relies, in part, on the closeness of evidence, a claim that we have
already rejected. Supra ¶ 47. “[T]he mere failure to give the Prim instruction to a deadlocked
jury is not reversible error.” People v. Wolf, 178 Ill. App. 3d 1064, 1066 (1989). Moreover, our
supreme court declared in People v. Cowan that the trial court possesses the discretion to decide
when to give a Prim instruction, relying on People v. Preston, 76 Ill. 2d 274 (1979). People v.
Cowan, 105 Ill. 2d 324, 328 (1985) (stating that “[t]he time when a supplemental instruction
should be given is for the court to decide”). In announcing that rule, the Cowan court quoted
24
from Preston, which stated, “ ‘it is primarily the function of the trial court to determine, on the
basis of such factors as the length of time already spent in deliberation and the complexity of the
issues before the jury, when the giving of the supplemental instruction becomes appropriate.’ ”
Id. (quoting Preston, 76 Ill. 2d at 283-84).
¶ 56 Here, the jury was actively engaged in reviewing the evidence until it was retired, as
exemplified by its submission of five notes during that time. At no point prior to the jury’s fifth
note, submitted more than nine hours into its deliberations, did the jurors even hint at a possible
deadlock. The fifth note also did not unequivocally state that the jury had become impossibly
deadlocked. Rather, it stated, “[W]e believe we are at impasse where further deliberation will not
lead to a unanimous decision. The primary reason for this impasse is the point of reasonable
doubt and burden of proof by the State. Given this, we need direction on how to proceed or
where compromises are appropriate.” Giving the language used its plain and ordinary meaning,
the note strongly suggests that the jurors believed that additional guidance from the court on the
meaning of reasonable doubt and the State’s burden of proof would advance its deliberations.
¶ 57 After considering the late hour, the lengthy period of time that the jury had already been
deliberating, and the challenging and abstract topics presented in its note, the trial court
concluded that any additional efforts to evaluate the meaning and application of the concepts of
“reasonable doubt” and, relatedly, the burden of proof were better left for the next day, after the
jurors had received an opportunity to rest. We conclude that decision did not constitute an abuse
of the trial court’s discretion. See Preston, 76 Ill. 2d at 283-84 (stating that the trial court is
tasked with deciding when to give a supplemental instruction “on the basis of such factors as the
length of time already spent in deliberation and the complexity of the issues before the jury”).
25
¶ 58 Moreover, case law barred the court from further defining the meaning of “reasonable
doubt” and the related concept of the State’s burden of proof, the points of contention recited in
the jury’s fifth note. “Illinois law is clear that neither the court nor counsel should attempt to
define the reasonable doubt standard for the jury (People v. Speight, 153 Ill. 2d 365, 374 (1992);
People v. Malmenato, 14 Ill. 2d 52, 61 (1958)). The reasoning behind this rule is that ‘reasonable
doubt’ is self-defining and needs no elaboration. Malmenato, 14 Ill. 2d at 61.” People v.
Johnson, 2020 IL App (3d) 130543-B, ¶ 21. Thus, any attempt by the trial court to provide the
jury with additional instruction on those issues would have been improper, either serving “no
useful purpose or *** potentially mislead[ing] the jury.” See Tomes, 284 Ill. App. 3d at 518
(listing circumstances in which the decision not to answer a jury’s questions is a valid use of the
trial court’s discretion). Thus, the trial court properly exercised its discretion by declining to
address the jury’s questions at that late hour.
¶ 59 Similarly, the trial court was also entitled to exercise its discretion by delaying the giving
of a Prim instruction. Cowan, 105 Ill. 2d at 328; Preston, 76 Ill. 2d at 283-84. The first hint that
the jury could be approaching an impasse did not occur prior to the note it submitted after it had
been deliberating for more than nine hours. The late hour, combined with its inability to provide
jurors with any additional guidance on “reasonable doubt,” justified the trial court’s decision to
permit the jury to rest and return the next day to determine whether it was truly at an impasse.
Under those circumstances, it was not unreasonable for the trial court to delay giving a Prim
instruction. Notably, when the jury returned to its deliberations, it did not renew its prior request
for clarification. Instead, it requested defendant’s phone records, indicating that it was not at an
impasse and was still actively considering the ramifications of the text messages exchanged
between defendant and D.D. Defendant offers nothing in the record to suggest that jurors who
26
may have held minority views were being pressured or otherwise coerced to capitulate to the
purported majority view. Thus, her claim that the lack of a Prim instruction “arguably coerced
the minority jurors to heed to the majority and reach a verdict” is purely speculative. Indeed, the
jury’s extensive communication with the trial court during its deliberations supports the contrary
conclusion, suggesting that its members were actively engaged in carefully evaluating all the
evidence before reaching its verdict. After reviewing the totality of the circumstances, we hold
that the trial court did not abuse its discretion by not giving a Prim instruction at the first sign of
a potential jury impasse. See People v. Branch, 123 Ill. App. 3d 245, 250-51 (1984).
¶ 60 Because defendant failed to establish a reasonable probability that giving a Prim
instruction would have changed the outcome of her trial, she is also necessarily unable to
establish any prejudice from the alleged trial error. Accordingly, we also reject her claims that
trial counsel and appellate counsel were ineffective for failing to raise the issue of the Prim
instruction.
¶ 61 III. CONCLUSION
¶ 62 For the foregoing reasons, we affirm the judgment of the circuit court of Peoria County.
¶ 63 Affirmed.
27