People v. Kimbrough

2021 IL App (1st) 180065-UFIRST DISTRICT,
FIRST DIVISION
March 8, 2021
No. 1-18-0065
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).
_____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
_____________________________________________________________________________
PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Respondent-Appellee, ) Cook County, Illinois.
)
v. ) No. 14 CR 11557
)
DARIUS KIMBROUGH, ) Honorable
) Stanley J. Sacks,
Petitioner-Appellant. ) Judge Presiding.
_____________________________________________________________________________
JUSTICE COGHLAN delivered the judgment of the court.
Justices Hyman and Pierce concurred in the judgment.
ORDER
¶1 Held: (1) Evidence was sufficient to convict defendant of predatory criminal sexual
assault and grooming. (2) The trial court did not abuse its discretion in allowing
State to introduce evidence of pornography found on defendant’s phone. (3)
Prosecutor’s statement in closing argument that five-year-old victim was “quiet”
and “shy” was fair comment on the evidence. (4) Defendant’s 15-year sentence for
predatory criminal sexual assault was not excessive.
¶2 Defendant Darius Kimbrough was convicted of predatory criminal sexual assault and
grooming of five-year-old M.G. On appeal, he argues that (1) the evidence was insufficient to
convict him; (2) the trial court erred in allowing the jury to view screenshots of searches for
No. 1-18-0065
pornography and stills of pornographic videos recovered from his cell phone; (3) the State made
improper closing remarks; and (4) his 17-year sentence was excessive. For the reasons that
follow, we affirm.
¶3 BACKGROUND
¶4 Darius spent the night of June 6, 2014, at the apartment of his brother James. James
shared the apartment with his son (13-year-old J.K.), his girlfriend Gabriel, and Gabriel’s two
daughters, 11-year-old D.G. and 5-year-old M.G. On June 7, M.G. told first J.K. and then her
mother that Darius had shown her a video on his phone and then put his penis in her mouth.
Darius surrendered to police on June 8, and the State charged him with predatory criminal sexual
assault and grooming.
¶5 M.G., who was nine years old at the time of trial, was unable to identify Darius in court.
She testified that in the months leading up to the incident, Darius came to visit a few times a
week. He was sometimes mean to Gabriel, calling her names and making fun of her in front of
James and his other brothers, Roy and Larnell. Gabriel denied this, testifying that she got along
with Darius prior to the incident.
¶6 On the evening of June 6, 2014, Darius and Roy spent the night at James’ one-bedroom
apartment. James and Gabriel slept in the bedroom, while M.G., J.K., and Roy slept in the living
room. As for Darius, M.G. testified that he slept “by the dogs,” while J.K. recalled that he slept
in the living room with them. M.G.’s sister was away at a friend’s house.
¶7 M.G. testified that early in the morning on June 7, she woke up because Darius’ alarm
went off. Darius told M.G. to wake up, grabbed her wrist, and brought her to the kitchen. There,
he showed her a video on his cell phone of “a man putting his penis in a girl’s mouth.” Darius
told her “to do what the girl did in the video.” They went together to the bathroom, where Darius
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unzipped his pants and put his penis in M.G.’s mouth. M.G. bit down hard. Darius removed his
penis, told her not to bite, and put it back in her mouth.
¶8 The incident ended when J.K. entered the bathroom. Darius zipped up his pants, pulled
down his shirt, and ran out of the house. Outside on the porch, M.G. told J.K. “a little bit” of
what happened.
¶9 On cross-examination, M.G. testified that after she was woken up by Darius’ alarm, she
got up to use the bathroom, which was on the other side of the kitchen. Darius was sitting at the
kitchen table, watching something on his cell phone. M.G. walked up behind Darius, stood next
to him, and saw what was on his phone screen. When Darius noticed her, he put his phone down
on the table. “[J]ust five seconds or so” later, M.G. told J.K. that she saw a video of a woman
sucking “something.” She did not specify what the “something” was because she did not know.
¶ 10 On additional cross-examination, M.G. reiterated her testimony that she was in the
bathroom with Darius, “something” was in her mouth, and she bit down on it hard.
¶ 11 J.K. testified that he woke up in the middle of the night and saw Darius wake M.G. and
bring her to the kitchen. There, Darius held his cell phone horizontally in his hand while M.G.
stood next to him. After watching them for a few minutes, J.K. got up and walked through the
kitchen to the porch where the dogs were. As he walked by Darius, he noticed Darius quickly
pulling down his shirt.
¶ 12 J.K. stayed out on the porch for around six minutes, and then M.G. came out to talk to
him. J.K. asked her what happened. M.G. told him that Darius showed her a video of a woman
doing “something” to a man, though she did not specify what. M.G. also said that in the
bathroom, Darius made her suck “something long and big and fat.” Darius told her, “Don’t bite
it,” and he also said, “Don’t tell nobody; keep it a secret.” J.K. stated that M.G. never used the
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term “private parts,” explaining that her mother did not allow her to use those words. J.K. further
testified that, after the incident, Darius remained at the apartment until “around when Gabriel and
[M.G.] were *** coming back.”
¶ 13 On cross-examination, J.K. acknowledged that at a prior hearing on May 18, 2016, he
testified that during their meeting on the porch, M.G. told him nothing about any part of Darius
touching any part of her.
¶ 14 Gabriel testified that later in the morning of June 7, she took M.G. shopping. M.G. did
not say anything about Darius during their shopping trip. That afternoon, after the two of them
had returned home, J.K. relayed to Gabriel what M.G. said to him. Gabriel then spoke to M.G.
Initially, J.K. was present, but M.G. appeared nervous and was reluctant to speak, so Gabriel
asked J.K. to leave. Gabriel explained that M.G. “shuts down when she thinks she’s in trouble or
when she’s nervous and people [are] around.”
¶ 15 After J.K. left, Gabriel reassured M.G. that whatever she said, she was not in trouble.
M.G. then told Gabriel that Darius woke her up, brought her to the kitchen, and showed her a
video on his cell phone. After that, the two of them went to the bathroom. M.G. demonstrated to
Gabriel that they were standing a couple feet apart with the bathroom door open. M.G. then said
that Darius “put his private parts in her mouth.” Gabriel asked, “Did you scream or yell or bite it
or something like that? I would have bit it or screamed or something.” M.G. replied, “I did.”
Gabriel said, “You did what?” and M.G. said, “Bite it.” She told Gabriel that she bit it “three
times or something like that.” Darius told her not to bite it. Darius also told her, “You’re not
going to say anything, are you? I’mma give you some candy.”
¶ 16 That evening, there was a family meeting with James, Darius, Larnell, J.K., and Gabriel.
At the meeting, M.G. was asked “who had done what they shouldn’t have done.” M.G. testified
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that she initially answered “B.J.,” but pointed at Darius after Gabriel whispered in her ear. 1 After
the family meeting, Larnell and James “beat Darius up.”
¶ 17 The next day, June 8, Gabriel brought M.G. and J.K. to the Children’s Advocacy Center
to speak with Lauren Glazer, a forensic interviewer. 2 A video of M.G.’s interview was shown to
the jury. In the interview, M.G. acknowledged that “something” happened to her, but she did not
provide any details, and she said she did not remember what she told J.K. When asked about
Darius, she described him as “Dad’s brother” and a “nice guy.” Glazer asked if Darius did
something to her that he should not have done. After a long silence, M.G. made an ambiguous
head movement which Glazer interpreted as agreement, but M.G. would not speak further on the
subject. Detective Jose Castaneda, who watched the interview through a one-way window,
testified that M.G. “seemed reluctant *** to talk about the incident.”
¶ 18 After the interview ended, M.G. went to a CAC playroom where she colored a picture for
her sister. She then brought the picture to Gabriel. On the back of the picture, there was a note
which read: “a grl nam [M.G.] Dad had a bruthr he wus nostey too the grl He put hes privet en hr
moth” [sic]. At trial, M.G. initially testified that she did not recognize the picture, but she then
stated that she was the one who colored it.
¶ 19 Gabriel testified that she forwarded the picture to CAC staff. The next day, she brought
M.G. back to the CAC for a second interview with Glazer. In that interview, which was also
shown to the jury, Glazer showed M.G. the note written on the picture. M.G. said that she wrote
it and it was about what Darius did to her. The incident occurred when she went to use the
1
Gabriel testified that she never whispered in M.G.’s ear during the meeting.
2
Glazer no longer worked at the CAC at the time of trial and did not testify.
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No. 1-18-0065
bathroom. Darius entered the bathroom after her and put his “private” in her mouth. Then J.K.
also entered the bathroom, and Darius “got scared” and put his private back in his pants.
¶ 20 M.G. also told Glazer during the second interview that, prior to the bathroom incident,
Darius showed her a video on his phone in which a white woman was sucking the “private” of “a
boy.” J.K. was outside when this was happening.
¶ 21 Detective James Browne conducted a forensic analysis of Darius’ cell phone. As part of
Browne’s testimony, the State displayed several screenshots of Darius’ web history on XVideos,
a porn site. As shown in the screenshots, his history included a search for “deepthroating” and
visits to pages titled “blowjob videos of the day,” “After Work Head,” and “BBC Gag Training
Pt2 (College Ho),” with BBC standing for “big black cock.” The State also showed seven
screenshots from porn videos found on Darius’ phone, which Browne described to the jury. One
of the screenshots depicted a white woman performing oral sex on an adult male. The
timestamps on the porn site visits and videos were from the afternoon of June 7, 2014.
¶ 22 Darius was the sole witness in his own defense. He testified that on June 6, 2014, he
spent the night at James’ apartment. He typically went there two or three times a week. He
further testified that he was not on good terms with Gabriel because a few months earlier, he saw
her performing oral sex on another man at a party and tried to warn James about it.
¶ 23 That night, Darius slept in the living room with Roy, J.K., and M.G. At around 7 a.m.,
James came to tell Roy that it was time to get up and go to work. That woke everyone up.
Darius, who did not have work that day, went to the kitchen to play an Xbox game. After playing
for a while, he picked up his cell phone and started watching a porn video he had previously
downloaded. According to Darius, the video showed a black woman and a black man having
penis-in-vagina sex; oral sex was not depicted.
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¶ 24 Shortly after he started watching the video, Darius heard footsteps behind him. He turned
around and saw M.G. standing around four to five feet away. He immediately turned off the
video and placed his phone facedown on the table in front of him. He did not deny that M.G.
might have seen part of the video, but he stated that he did not invite her to watch it up close. He
further stated that he did not take M.G. to the bathroom, he did not tell her to do what she saw in
the video, he did not take his penis out, and he did not touch M.G., nor did she touch him.
Instead, he went back to playing on the Xbox. Around half an hour later, Gabriel and M.G. left
the house. Darius stayed until around 11 a.m., when he left to go to Larnall’s house.
¶ 25 At around 11:30 p.m. that night, Darius received a phone call from James, after which he
and Larnall went to James’ apartment. Also present were James, J.K., Gabriel, and M.G., who
was sleeping. Gabriel woke M.G. up and asked, “Who did it to you?” M.G. said, “B.J. did it.”
Gabriel whispered something in M.G.’s ear while pointing at Darius. M.G. then pointed at
Darius.
¶ 26 Larnall and James got in a fight with Darius, giving him a fractured ear and swollen eye.
Larnall then told Darius to get out of the house. Darius went to his girlfriend’s house, which is
where police found and arrested him the following day. Following his arrest, he was interviewed
by Detective Castaneda. Darius admitted saying that he watched a porn video about “getting
some head,” but he denied saying that he showed M.G. the video. In rebuttal, the State played a
clip of the interview in which Darius admitted showing M.G. the video. Detective Castaneda
confirmed that the clip was true and accurate.
¶ 27 During closing argument, the State argued that in the videotaped interviews with M.G.,
“[y]ou got to see her demeanor, her behavior. You saw that she was shy, a nervous five-year-old
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little girl. Those specific traits are exactly why this defendant targeted five-year-old [M.G.]. She
was shy. She was quiet and she was soft-spoken. He thought that she would keep his secret.”
¶ 28 The State later reiterated that Darius “targeted” M.G. because “[s]he was quiet, shy and
soft spoken and he thought that she would keep that secret that he asked her to, but she didn’t.”
Similarly, in rebuttal argument, the State argued: “He picked her for a reason. He picked her
because she’s shy and she’s quiet and she’s reluctant to tell secrets and she’s five.”
¶ 29 The jury found Darius guilty of one count of predatory criminal sexual assault 3 and one
count of grooming. Darius was sentenced to 15 years’ imprisonment for predatory criminal
sexual assault and 2 years’ imprisonment for grooming, to be served consecutively.
¶ 30 ANALYSIS
¶ 31 Darius argues that his conviction must be reversed because (1) the evidence was
insufficient to convict him; (2) the trial court erred in allowing the State to show irrelevant and
prejudicial screenshots of porn-related searches and pornographic material from his cell phone;
and (3) the State said during closing argument that Darius targeted M.G. because she was “quiet”
and “shy,” an assertion with no basis in the record. Darius further argues that his sentence of 15
years for predatory criminal sexual assault is excessive.
¶ 32 Sufficiency of the Evidence
¶ 33 Darius first argues that the evidence was insufficient to prove him guilty beyond a
reasonable doubt, since M.G.’s statements were inconsistent with each other and with J.K.’s
testimony, and no physical evidence corroborated her allegations.
3
The State charged Darius with two counts of predatory criminal sexual assault on the theory that
he committed two separate assaults when he put his penis in M.G.’s mouth, removed it, and then put it
back in. The jury found him not guilty on the second count.
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¶ 34 In reviewing the sufficiency of the evidence, we must determine “ ‘whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.’ “ (Emphasis in
original.) People v. Jackson, 232 Ill. 2d 246, 280 (2009) (quoting Jackson v. Virginia, 443 U.S.
307, 319 (1979)). The jury bears responsibility for resolving conflicts in testimony, weighing
evidence, and drawing reasonable inferences from the evidence, and we will not substitute our
judgment on these matters. People v. Siguenza-Brito, 235 Ill. 2d 213, 224-25 (2009).
“[C]ognizant that conflicting testimony is to be resolved by the trier of fact” (People v. Westfield,
207 Ill. App. 3d 772, 777 (1990)), we do not find that “the record evidence compels the
conclusion that no reasonable person could accept [M.G.’s testimony] beyond a reasonable
doubt.” (Emphasis added.) People v. Cunningham, 212 Ill. 2d 274, 280 (2004).
¶ 35 Darius argues that M.G.’s testimony on direct examination differed considerably from
her testimony on cross-examination, in which she said that she walked up behind Darius and saw
him watching a video on his cell phone, and when he noticed her, he put his cell phone down on
the table. Notably, this version of events is largely consistent with Darius’ own testimony.
¶ 36 Darius also points out that M.G.’s direct testimony is inconsistent with J.K.’s testimony.
According to M.G., J.K. entered the bathroom while Darius was making her suck his penis.
Upon being caught in the act, Darius immediately ran out of the house. By contrast, according to
J.K., he saw M.G. with Darius in the kitchen, apparently watching something on Darius’ phone.
J.K. then went out on the porch and stayed there until M.G. came out to talk to him. He did not
claim to have entered the bathroom or witnessed the assault. He further testified that Darius
remained at the house until later that day.
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¶ 37 Despite these inconsistencies, we do not find that they render the evidence insufficient for
“any rational trier of fact” to find Darius guilty beyond a reasonable doubt. (Emphasis in
original; internal quotation marks omitted.) Jackson, 232 Ill. 2d at 280. M.G.’s testimony on
direct examination was consistent with her written statement at the CAC, as well as her
description of events in her second interview with Glazer. Even in her cross-examination, she
maintained that Darius put “something” in her mouth which she bit. A jury could reasonably
conclude that M.G., a young child, might have been confused as to some collateral details of the
incident while still able to credibly testify that she was assaulted.
¶ 38 Darius also argues that M.G. is not credible because her mother had a grudge against him
and had the opportunity to influence M.G.’s statements. But Gabriel asserted in court that she
was on good terms with Darius before the incident, and the jury was entitled to believe that
testimony. Gabriel further claimed she did not whisper in M.G.’s ear during the family meeting
at which M.G. identified Darius. Moreover, it is well established that “[a] reviewing court will
not reverse a conviction simply because *** the defendant claims that a witness was not
credible.” Siguenza-Brito, 235 Ill. 2d at 228. The jury had an opportunity to observe M.G.’s
testimony and her videotaped interview with Glazer, at which her mother was not present. They
found her testimony credible, and it is not our role to disturb that determination on appeal. Id. at
224-25.
¶ 39 Darius next asserts that it is not plausible that he would sexually assault M.G. when so
many other people were in the apartment. He overstates the implausibility of this scenario.
According to Darius, when he started watching the porn video, Roy had already left to go to
work, and James and Gabriel were in their bedroom with the door shut. That left only M.G. and
J.K. J.K. testified that he got up and exited the apartment while Darius and M.G. were together in
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the kitchen. Thus, Darius and M.G. were alone in the main living area of the apartment. Viewing
this evidence in the light most favorable to the State, we do not find an assault so implausible as
to create a reasonable doubt as to Darius’ guilt.
¶ 40 People v. Judge, 221 Ill. App. 3d 753, 761 (1991), which Darius cites on this issue, is
distinguishable. In Judge, the seven-year-old complainant and her sister were watching cartoons
in the living room of their trailer home when defendant (who rented a room in their house)
allegedly grabbed her, dragged her across the floor, threw her onto his bed, and sexually
assaulted her, “even though her father was in the trailer home at this time.” Id. The court was
concerned that “this alleged activity did not appear to alarm or disturb her younger sister who
was awake and with complainant at the time” and that their father was apparently unaware of the
assault. Id. Additionally, no “noticeable marks or bruises” were found on the complainant’s body
despite the violent nature of the attack. Id. Finally, “the original mention of any abuse was made
in response to repeated questioning by [the complainant’s] mother,” who had made a prior
unfounded charge of sexual assault of another child. Id. Under these facts, the Judge court found
that the complainant’s testimony did not establish defendant’s guilt beyond a reasonable doubt.
Id.¶ 41 Here, in contrast to Judge, there were no witnesses to the actual assault, which was silent
in nature. Judge is therefore inapposite.
¶ 42 Darius also argues that M.G.’s testimony was uncorroborated by physical evidence. But
as the State points out, the grooming charge was corroborated by forensic examination of Darius’
phone, which revealed a video of a white woman performing oral sex on an adult male. As for
the alleged assault, because there was no violence or ejaculation involved, it is unsurprising that
there would be no physical evidence. More importantly, “it is well settled that a lack of physical
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evidence does not establish that a sexual assault did not occur.” People v. Delgado, 376 Ill. App.
3d 307, 311 (2007) (evidence was sufficient to convict defendant of sexual assault despite
inconsistencies in complainant’s testimony and lack of corroborating physical evidence); see also
People v. DuPree, 161 Ill. App. 3d 951, 961 (1987) (physical evidence is not required to prove
the commission of a sex crime).
¶ 43 In sum, “[d]efendant’s argument regarding the sufficiency of the evidence is ultimately
unpersuasive because *** the weaknesses in the evidence that defendant cites on appeal were all
presented to, and rejected by, the jury.” People v. Milka, 211 Ill. 2d 150, 178 (2004). Although
we acknowledge inconsistencies in the testimony of the witnesses, “[i]t is not the function of this
court to retry the defendant” (People v. McCarter, 2011 IL App (1st) 092864, ¶ 21). We find that
the evidence was sufficient to sustain Darius’ convictions for predatory criminal sexual assault
and grooming beyond a reasonable doubt.
¶ 44 Screenshots from Darius’ Phone
¶ 45 Darius next argues that the trial court erred in allowing the State to show screenshots of
porn-related searches and screenshots of porn videos from his cell phone, because they were both
irrelevant and highly prejudicial.
¶ 46 Evidence is relevant when it (1) renders a matter of consequence more or less probable or
(2) tends to prove a fact in controversy. People v. Lynn, 388 Ill. App. 3d 272, 280 (2009). When
evidence is relevant and otherwise admissible, it should not be excluded merely because it may
also tend to prejudice the accused. People v. Hale, 2012 IL App (1st) 103537, ¶ 35 (citing People
v. Patterson, 154 Ill. 2d 414, 458 (1992)). Rather, the trial court should only exclude such
evidence “if its prejudicial effect substantially outweighs its probative value.” Id. The question of
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whether evidence is relevant and admissible is reserved to the trial court’s sound discretion and
will not be reversed absent an abuse of that discretion. Lynn, 388 Ill. App. 3d at 280.
¶ 47 People v. Pelo, 404 Ill. App. 3d 839 (2010), is instructive here. In Pelo, the State charged
defendant with “a series of crimes involving the stalking, intimidation, home invasion,
residential burglary, unlawful restraint, and aggravated criminal sexual assault of five women.”
Id. at 841. At trial, the State introduced extensive exhibits of pornography recovered from
defendant’s home, including 23 separate poster boards of images, gallery names, and search
results, as well as two 30-second videos of various acts being performed on bound women. The
Pelo court held that the “vast majority” of this pornography was relevant and properly admitted,
since it “involved forced sex, rape, bondage, the use of foreign objects on women, and female
masturbation,” all of which were emulated by the perpetrator of the crimes charged. Id. at 864-
65. The probative value of these exhibits was “very high” because it established “a backdrop of
peculiar sexual interests by defendant” consistent with that of the perpetrator. Id. at 868.
However, “a few” of the images (e.g., those depicting incest, caning, and a gynecological exam)
were irrelevant to the State’s theory of the case and should not have been admitted. Id. at 862,
865.
¶ 48 In this case, the State’s screenshot evidence was directly relevant to the charge of
grooming, which occurs when a defendant knowingly uses any device capable of electronic data
storage or transmission to solicit a child to commit a sex offense. 720 ILCS 5/11-25 (West 2014).
M.G. alleged that Darius showed her a cell phone video of “a man putting his penis in a girl’s
mouth” before telling her “to do what the girl did in the video.” Thus, it was clearly relevant that
a video depicting oral sex was recovered from Darius’ cell phone.
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¶ 49 Additionally, as in Pelo, establishing a backdrop that Darius’ sexual interests included
oral sex was relevant because this assault involved oral sex. Darius points out that his porn
videos all involved consenting adults rather than children. Notwithstanding this fact, we find that
Darius’ interest in oral sex rendered it more probable that he would commit a sexual assault
involving oral sex than if he had no such demonstrated interest.
¶ 50 Darius additionally contends that the evidence introduced by the State on this point was
excessive. He argues that a single screenshot from the oral sex video would have sufficed to
make the State’s point. Instead, the State showed seven screenshots from various porn videos
found on his phone, as well as multiple screenshots of his search history on a porn website.
¶ 51 We do not find that the trial court abused its discretion in allowing the State to show
multiple screenshots of Darius’ search history and stills from pornographic videos. Initially, we
note that the State’s evidence in this regard was far less than the voluminous pornographic
exhibits introduced in Pelo, the “vast majority” of which were properly admitted. Id. at 864.
More importantly, the State’s evidence was properly tailored to the crimes charged. Instead of
playing the videos for the jury, the State merely showed a few relevant screenshots; additionally,
the evidence was limited to searches and videos with a timestamp of June 7, 2014, the date of the
assault. Accordingly, we find no abuse of discretion in the trial court’s admission of pornography
recovered from Darius’ phone.
¶ 52 Closing Argument
¶ 53 Darius next argues that he was deprived of a fair trial because the State said during
closing argument that he “targeted” M.G. because she was “quiet” and “shy,” an assertion which
he claims has no basis in the record.
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¶ 54 Darius acknowledges he has forfeited this issue by failing to object or raise the issue in a
posttrial motion. People v. Enoch, 122 Ill. 2d 176, 186 (1988). He nevertheless argues that we
may consider the issue under the plain error doctrine, which allows us to review “clear and
obvious” unpreserved errors when either (1) the evidence is so closely balanced that the error
threatened to tip the scales against the defendant, or (2) the error “is so serious that it affected the
fairness of the defendant’s trial and challenged the integrity of the judicial process.” People v.
Piatkowski, 225 Ill. 2d 551, 565 (2007).
¶ 55 We first consider whether any error occurred. People v. Johnson, 218 Ill. 2d 125, 139
(2005) (“Clearly, there can be no plain error if there is no error”). Darius first argues that there
was no basis for the prosecutor’s assertion that M.G. was “quiet” and “shy.” We disagree.
Gabriel testified that M.G. was reluctant to talk about the incident, explaining that she “shuts
down when she thinks she’s in trouble or when she’s nervous and people [are] around.”
Additionally, the jury was shown the videotapes of M.G.’s CAC interviews and was able to
observe her demeanor firsthand. Particularly in the first interview, M.G. was extremely
withdrawn, giving single-word answers to some questions and flat-out refusing to answer most
others. M.G. explicitly testified at trial that she was feeling “[s]hy” during that interview. In light
of these facts, the State’s characterization of M.G. as “quiet” and “shy” was a fair comment on
the evidence.
¶ 56 Darius next argues that it was error to state that he “targeted” M.G. because it implies a
level of premeditation and planning that is not supported by the record. We do not find any such
implication in the State’s argument. If the State’s evidence is believed, Darius did, in fact, target
M.G. by bringing her to the kitchen, showing her a porn video depicting oral sex, and then
bringing her to the bathroom and telling her to imitate the actions she saw in the video.
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Regardless of whether any preplanning was involved, Darius singled M.G. out as the victim of
his assault. Accordingly, we find no error in the State’s closing argument.
¶ 57 Excessive Sentence
¶ 58 Darius finally argues that his sentence of 15 years for predatory criminal sexual assault is
excessive. He further argues that the trial court erred in considering M.G.’s age as a factor in
aggravation, since it was a factor inherent in the offense.
¶ 59 It is well established that the trial court has broad discretionary powers in imposing a
sentence. People v. Alexander, 239 Ill. 2d 205, 212 (2010). Because the trial court has the
opportunity to observe the defendant and weigh such factors as his credibility, demeanor, and
mentality, we give great deference to the trial court’s judgment and will not reduce a defendant’s
sentence absent an abuse of discretion. Id. at 212-13. We may not substitute our own judgment
for that of the trial court simply because we would have weighed the sentencing factors
differently. Id. at 214-15. However, we consider de novo the issue of whether the trial court
considered an improper factor in sentencing. People v. Chaney, 379 Ill. App. 3d 524, 527 (2008).
¶ 60 Darius’ sentence of 15 years is on the lower end of the 6-to-60-year range authorized by
statute for predatory criminal sexual assault. 720 ILCS 5/11-1.40 (a)(1), (b)(1) (West 2016).
Darius nevertheless argues that the trial court failed to give adequate weight to the factors in
mitigation, namely, his lack of violent criminal history, his consistent employment, and the one-
time nature of the offense. But it is well established that “[t]he most important sentencing factor
is the seriousness of the offense, and the court need not give greater weight to rehabilitation or
mitigating factors than to the severity of the offense.” People v. Charles, 2018 IL App (1st)
153625, ¶ 45; see also Alexander, 239 Ill. 2d at 214-15 (appellate court acted improperly in
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reducing defendant’s sentence based on its finding that the trial court “gave undue weight to
factors in aggravation”).
¶ 61 Here, the trial court explicitly considered Darius’ prior criminal history, noting that he
had been sentenced to probation and then boot camp for a drug-related offense, but had no
convictions in the past 11 years. The court also considered the facts of the case, as well as victim
impact letters from M.G. and her mother. In balancing these factors, the court declined to impose
a “low sentence,” but it also declined to impose a “stiffer sentence” where Darius “would never
see the street again.” We find no abuse of discretion in the court’s judgment in this regard.
¶ 62 Finally, Darius argues that the trial court improperly considered M.G.’s age as a factor in
aggravation. A trial court may not consider a factor implicit in the underlying offense as an
aggravating factor in sentencing. People v. Abdelhadi, 2012 IL App (2d) 111053, ¶ 9. However,
the court may properly consider the nature and circumstances of the offense, including “the
nature and extent of each element of the offense as committed by the defendant.” People v.
Brewer, 2013 IL App (1st) 072821, ¶ 55. “The rule that a court may not consider a factor
inherent in the offense is not meant to be applied rigidly, because sound public policy dictates
that a sentence be varied in accordance with the circumstances of the offense.” (Internal
quotation marks omitted.) People v. Spicer, 379 Ill. App. 3d 441, 468 (2007).
¶ 63 Thus, a sentencing court may consider “whether the victim is particularly young” even
though the victim’s age is an element of the sexual assault count for which defendant was
convicted. (Emphasis omitted.) People v. Thurmond, 317 Ill. App. 3d 1133, 1144-45 (2000). For
instance, Thurmond held that in sentencing a defendant for criminal sexual assault, the trial court
did not err by recognizing that the 12-year-old victim was particularly young, since “there is a
difference between being under age 18 and being significantly under age 18.” Id.-17-
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¶ 64 Here, Darius was convicted of predatory criminal sexual assault because he was at least
17 years old and caused his sexual organ to touch a victim under 13 years old for purposes of
sexual gratification or arousal. 720 ILCS 5/11-1.40 (West 2016). At sentencing, the trial court
made multiple comments regarding M.G.’s age, stating: “I think to myself, what in the world can
a guy see in a girl five years old, performing sex on a little girl? What in the world can a guy see
in doing that?” The court further stated: “Having a young girl, age five. Every time I think about
that, it makes me shake my head in wonder. A little girl age 5 do[ing] oral sex on a 25-year-old
man. What in the world were you thinking about?”
¶ 65 As in Thurmond, we do not find the trial court’s comments to be improper. Although
predatory criminal sexual assault will, by definition, always involve a victim under 13, there is a
difference between being under 13 and being significantly under 13. The fact that M.G. was only
five years old was part of the nature and circumstances of Darius’ particular offense, and, as
such, the trial court was entitled to take it into account when fashioning sentence.
¶ 66 CONCLUSION
¶ 67 For the foregoing reasons, we affirm Darius’ convictions and sentences.
¶ 68 Affirmed.
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