People v. Hemphill

2021 IL App (2d) 190473-UNo. 2-19-0473
Order filed October 25, 2021
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(l).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kendall County.
)
Plaintiff-Appellee, )
)
v. ) No. 12-CF-299
)
SEAN HEMPHILL, ) Honorable
) John F. McAdams,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
PRESIDING JUSTICE BRIDGES delivered the judgment of the court.
Justices Zenoff and Birkett concurred in the judgment.
ORDER
¶1 Held: The trial court did not err in its ruling on defendant’s Brady claim or in allowing
evidence under section 115-10. There was sufficient evidence to prove defendant
guilty beyond a reasonable doubt. The trial court also did not err in its evidentiary
rulings, and defendant did not receive ineffective assistance of counsel. Therefore,
we affirm.
¶2 Following a second trial, defendant, Sean Hemphill, was found guilty of eight counts of
aggravated criminal sexual abuse (720 ILCS 5/11-1.6(b), 11-1.6(c)(1) (West 2012)) and four
counts of predatory criminal sexual assault of a child (720 ILCS 5/11-1.40(a)(1) (West 2012)). He
was sentenced to 45 years’ imprisonment. On appeal, he argues that (1) the State violated Brady
2021 IL App (2d) 190473-Uv. Maryland, 373 U.S. 83 (1963), by wrongfully withholding evidence which would have led to
an acquittal after the first trial; (2) the trial court erred in admitting hearsay statements under
section 115-10 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-10 (West 2012)); (3)
there was insufficient evidence to prove him guilty beyond a reasonable doubt; (4) the trial court
erred regarding various evidentiary issues; and (5) his trial counsel provided ineffective assistance.
We affirm.
¶3 I. BACKGROUND
¶4 A. First Trial
¶5 On October 10, 2012, defendant was charged by indictment with four counts of aggravated
criminal sexual abuse. The charges alleged that on or about January 1, 2012, defendant committed
an act of sexual conduct with his daughter A.P.H., who was under 18 years of age, in that he had
A.P.H. touch his penis for the purpose of his sexual gratification.
¶6 Prior to trial, on March 6, 2013, the State gave notice pursuant to section 115-10 of its
intent to introduce out-of-court statements that A.P.H. made to: her mother, Ryan Hemphill
(Ryan); Child Advocacy Center personnel on January 11, 2012; and school personnel. A hearing
on the motion took place on August 8, 2013, and August 12, 2013. On August 16, 2013, the trial
court ruled that the following statements were admissible: statements that A.P.H. made to her
mother during A.P.H.’s bath on January 4, 2012; statements made before, during, and after the
family visited a Wendy’s restaurant on January 5, 2012; statements made during A.P.H.’s Victim
Sensitive Interview (VSI) at the Child Advocacy Center; and statements that A.P.H. made to
assistant principal Dawn Marmo at Long Beach Elementary School.1
1
Though the trial court specified Marmo, the State had sought to introduce statements that
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2021 IL App (2d) 190473-U¶7 Defendant’s jury trial began on March 17, 2014. We restate the facts from this trial as set
forth in defendant’s prior appeal. See People v. Hemphill, 2016 IL App (2d) 151196-U.
¶8 A.P.H. was the first witness and testified as follows. She was born on January 4, 2004, and
was currently ten years old. In 2012, she lived with both of her parents in a three-bedroom house.
She was afraid to sleep in her own bed because she once saw an ant crawling on it. Her parents
slept in different bedrooms, so at night A.P.H. would sleep with one of them. One day, she heard
from some other children that if a boy kissed a girl, the girl would get pregnant. That did not make
sense to A.P.H. because her parents kissed all the time, and her mother would not become pregnant.
On January 5, 2012, she was going to sleep in defendant’s bed and asked him about what she had
heard. Defendant told her what it meant to be pregnant, and he talked about girls’ and boys’ “body
parts.”
¶9 The assistant state’s attorney asked A.P.H. at trial, “Did you ask him to do something?,”
and she replied, “No.” He told her not to tell anyone, but she told her mom and “Mr. Lipke.” When
asked, “The thing that you told your mom and the other people, did that really happen?”, A.P.H.
replied in the affirmative. A.P.H. was asked if she wanted “to tell these people what happened to
you in bed with” defendant, and she stated, “He just told me what it meant.” The assistant state’s
attorney again asked “Now, when he told you what it meant, did you ask him to do anything else?”,
and A.P.H. replied, “No.”
¶ 10 Next, three officers collectively testified that they were dispatched to A.P.H.’s home on
the evening of January 5, 2012. A.P.H. alternated between being excited because she had just had
A.P.H. had made to school personnel, not just Marmo, and the trial court granted the State’s
motion.
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2021 IL App (2d) 190473-Ua birthday, to being upset and crying. Ryan provided a written statement, and defendant ended up
leaving the house voluntarily.
¶ 11 When the trial resumed the next day, defendant orally objected to any of A.P.H.’s out-of-
court statements being admitted into evidence; the trial court had previously deemed them
admissible after the section 115-10 hearing. Defendant argued that A.P.H. did not testify as to any
criminal conduct by him, so the hearsay statements were not admissible under People v. Learn,
396 Ill. App. 3d 891 (2009). The trial court denied the motion, stating that it believed that the
testimony was sufficient to meet the minimum threshold for the admission of evidence under
section 115-10.
¶ 12 Erin Buddy then provided the following testimony. On January 30, 2012, she was substitute
teaching at Long Beach Elementary School, as she had been doing every Wednesday. On that
particular day, she was working with three second-grade students, including A.P.H., on literacy
skills. A.P.H. looked unusually tired, and Buddy asked if she was all right. A.P.H. said that she
did not sleep well the previous night, and Buddy asked if she was out doing something fun. A.P.H.
replied that she was not sleeping well because her daddy asked her to either come into his bed or
asked if he could join her in her bed. Buddy reported the conversation to the school social worker
and Assistant Principal Marmo. The rest of the academic year, whenever Buddy asked A.P.H. how
she was doing, A.P.H. would say that she was fine.
¶ 13 Marmo testified as follows. On January 30, 2012, A.P.H. came into her office and told her
that she was upset and sad because her parents were divorcing and because she really wanted a
brother or sister. A.P.H. said that when she and her mother were taking a bath together, she talked
to her mom about her father. A.P.H. told Marmo that the divorce was her fault because she had
asked her dad about sex and about boys’ and girls’ “parts,” and that he had shown her “his parts.”
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2021 IL App (2d) 190473-UMarmo asked the principal, Mr. Lipke, to come into the room, and A.P.H. repeated the statement.
Marmo contacted the Department of Children and Family Services. Later that day, A.P.H. came
up to Marmo on the playground at recess. A.P.H. asked if Marmo was married, had children, and
knew what it meant to be “hard.” Marmo responded in the affirmative, and A.P.H. said that her
daddy had showed her what being hard meant. A.P.H. then said that there was “a lot more” but
that she did not want to talk about anything else. A.P.H. said that Marmo could tell Mr. Lipke
about their conversation, but not her mother.
¶ 14 Ryan provided the following testimony. She and defendant married in 2003, and A.P.H.
was their daughter. In January 2012, she worked from home. The household’s atmosphere was
“pretty good,” though she and defendant would have small arguments every week. Ryan loved
defendant and believed that he loved her.
¶ 15 A.P.H.’s room had a twin-size bed, and the master bedroom and guest room each had
queen-size beds. Ryan would get up around 4:30 or 5 a.m. to start work so that she could spend
more time with her family later in the day. Ryan would sleep in the guest room three or four nights
per week because defendant was a light sleeper, and Ryan’s alarm would wake him up. Ryan
snored, which also interfered with defendant’s sleep. A.P.H. did not like to sleep in her bed because
one night she saw an ant in her bed, and she was convinced that every time she slept in her bed, an
ant would be there. A.P.H. began sleeping in whatever room Ryan was in. However, a few months
before January 2012, defendant said that A.P.H. should be able to choose wherever she slept, with
the thought that eventually she would choose her own bed.
¶ 16 On January 4, 2012, Ryan and A.P.H. planned to meet defendant for A.P.H.’s birthday
dinner. Ryan was helping A.P.H. wash her hair, and A.P.H. said that she knew the difference
between girls’ and boys’ parts. Ryan replied that she knew A.P.H. had seen her baby cousin
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2021 IL App (2d) 190473-UCaleb’s diaper changes. A.P.H. said that she had seen and touched defendant’s private parts. Ryan
asked if she had seen him after a shower or getting dressed. A.P.H. said no, that she had asked if
she could see them, and he let her. A.P.H. said that there was a part with soft skin and hair on it,
with two balls inside. A.P.H. asked what the balls were called, and Ryan said testicles. A.P.H.
replied, “[Y]eah.” During this time, A.P.H. seemed normal and happy. A.P.H. said that there was
another part that stuck out in the front, with a hole in it where the pee came out. She asked if that
was called the penis, and Ryan responded affirmatively. Ryan had used those words with A.P.H.
once or twice when talking about Caleb. At this point, Ryan was “alarmed because what [A.P.H.]
had described to [her] was obviously an adult[’s] genitals, not a child[’s].” Ryan asked what
defendant had showed her, and A.P.H. said that they played a game where they took the testicles’
skin and stretched it over the penis to cover it up, A.P.H. would take it off, and “it” would be a
present or surprise. Sometimes they pretended “it” was a piece of candy. A.P.H. described another
game where they would pretend that the penis was a marker, and if you squeezed one ball, blue
ink would come out, and if you squeezed the other ball, green ink would come out. A.P.H. noticed
that Ryan had gone quiet, and A.P.H.’s face “dropped.” A.P.H. said that Ryan could not tell
defendant or anyone else what A.P.H. had said because otherwise, defendant could go to jail. Ryan
said that she would not make such a promise because in their family, they did not keep secrets.
Ryan asked where and when this had happened. A.P.H. said that they played the game in the master
bedroom, before bed. A.P.H. could not provide a date, and when Ryan asked if it happened before
or after Christmas, A.P.H. said that it occurred after Christmas. Ryan said that she was glad A.P.H.
had told her. They went out to dinner, but Ryan did not confront defendant at that time because
she did not want to ruin A.P.H.’s birthday and did not want to talk to him in front of her.
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2021 IL App (2d) 190473-U¶ 17 Ryan insisted that A.P.H. sleep with her that night. The next evening, Ryan talked to
defendant while A.P.H. was at her tae kwon do class. Ryan repeated what A.P.H. had said, and
defendant was very quiet. He asked what she was talking about and why A.P.H. would say those
types of things. They picked up A.P.H., and when they were pulling out of the parking lot, A.P.H.
must have seen that defendant was upset. She blurted out, “[S]ee, I told you if I told everything
that dad could get in trouble.” Ryan asked A.P.H. to repeat what A.P.H. had told her, and A.P.H
did so. Defendant asked why she was saying this and who had done this. A.P.H. leaned forward
and said, “[Y]ou and me.” They went to eat at Wendy’s. A.P.H. said that she should not have told
Ryan, that defendant was upset, and that he could go to jail. She asked why Ryan could not keep
a secret.
¶ 18 They returned to the house, and Ryan told defendant that they should talk to A.P.H. one
more time. A.P.H. started to say the same things again, and defendant told her to tell the truth.
Defendant asked why she was saying such things, and she replied, “[B]ecause you did.” When
defendant again asked why she was saying such things, A.P.H. got a “crushed” look on her face.
Subsequent to these disclosures, Ryan filed for divorce, and the divorce was now final.
¶ 19 Michelle Hawley testified that she was the mental health assistant director of the Kendall
County Health Department. As part of her job, she worked at the Children’s Advocacy Center
interviewing children who may be victims of physical or sexual abuse. She would meet with the
parent before the interview to obtain the parent’s consent and learn about the situation, and she
would review police reports. On January 11, 2012, she interviewed A.P.H., and the interview was
recorded. During the course of the interview, Hawley had A.P.H. identify male and female
anatomy on charts; the charts were admitted into evidence.
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2021 IL App (2d) 190473-U¶ 20 A video recording of the interview was played for the jury, which was also given
transcripts. We summarize the interview’s contents. A.P.H. told Hawley that she told her mom
that she asked defendant what sex was and if she could see what his private parts looked like.
A.P.H. thought sex was when a couple kissed and laid in bed together. Defendant told her the
“right thing,” that sex was when a boy puts his penis in “her” private parts and then “yucky stuff
comes out.” This conversation occurred three days before A.P.H.’s birthday, when they were in
his bed. Defendant let A.P.H. see his private parts; defendant had his sleep shorts on and took his
penis out through the hole in the shorts. A.P.H. asked if she could touch it, and he said, “Yes.”
This happened only one time.
¶ 21 At this point in the interview, A.P.H. said that she wished that she had never told her mother
because then her mom would not have called the police, and defendant would not have left. A.P.H.
then said that on the same night, she and defendant played a game two times about changing the
color of “pencils.” A.P.H. thought up the game because the penis was shaped like a “marker.”
A.P.H. touched the side of the penis and held it with her hand for one second each time. Defendant
then said what “it [was],” which was “a marker.” Then A.P.H. dropped it, and they went to bed.
The penis was soft, and nothing came out of it. Defendant told A.P.H. not to tell her mom because
he could go to jail for it.
¶ 22 Previously, A.P.H. had not seen defendant’s penis. She had often felt it on her leg when
she was sleeping with him; it would come out when defendant was moving around. At these times,
A.P.H.’s mom was working or sleeping in the guest room. A.P.H. never saw defendant’s penis
during those times because the room was dark, and she would just move away. A.P.H. told
defendant once about his penis touching her leg, and he said that he was sorry about that. At times,
A.P.H. wore just underwear to bed. Sometimes defendant accidentally touched her on her thighs
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2021 IL App (2d) 190473-Uor on top of her underwear, and then he would move over. Defendant’s hand never went inside her
underwear.
¶ 23 A.P.H. told her mom about the game and told her not to tell defendant, but her mom did
anyway. A.P.H. did not think that it was good that she told her mother, because, otherwise, “[n]one
of this would have happened,” her dad would still be there, and “[n]o one would be mad.”
¶ 24 The State rested, and defendant moved for a directed verdict, primarily on the basis that
A.P.H. did not testify in court as to any unlawful conduct by defendant. The trial court denied the
motion. On March 19, 2014, the jury found defendant guilty of all four counts of aggravated
criminal sexual abuse.
¶ 25 B. Defendant Granted a New Trial
¶ 26 On April 17, 2014, defendant filed a motion for judgment notwithstanding the verdict, or
for a new trial. Defendant argued, among other things, that the trial court erred in allowing into
evidence A.P.H.’s hearsay statements to Marmo, Ryan, and Hawley under section 115-10 because
A.P.H. failed to testify at trial as to any wrongful or unlawful conduct by him. Defendant argued
that the trial court similarly erred in allowing into evidence the recording and transcript of A.P.H.’s
interview with Hawley.
¶ 27 On June 18, 2014, the trial court granted defendant’s request for a new trial. It stated that
because A.P.H. did not testify that defendant engaged in any of the actions forming a basis for the
charges against him, she did not testify for the purpose of admission of evidence pursuant to section
115-10, making the admission of evidence under that section erroneous. It therefore granted
defendant a new trial.
¶ 28 Defendant then filed a motion arguing that a second trial would violate his constitutional
right against double jeopardy, which the trial court denied on September 4, 2014. The case was
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2021 IL App (2d) 190473-Ucalled for a re-trial over one year later, on December 2, 2015. The same day, defendant filed a
motion to dismiss based on double jeopardy, reasserting his prior arguments. The trial court denied
the motion, and defendant appealed. We affirmed, holding that double jeopardy did not prohibit a
retrial, even if the evidence at the first trial was insufficient. Hemphill, 2016 IL App (2d) 151196-
U, ¶¶ 36-37.
¶ 29 C. Second Trial
¶ 30 1. Recording
¶ 31 In March 2016, the State tendered to defendant a recording that Ryan had secretly made on
January 5, 2012. The police obtained the recording from Ryan on December 2, 2015. The recording
was many hours long and covered her discussion with defendant during A.P.H.’s tae kwan do
class, A.P.H.’s subsequent statements, and police officers’ statements when they came to the
house. On February 24, 2017, defendant sought to suppress the recording. He filed a separate
motion arguing that due to the failure to disclose the recording, the charges against him should be
dismissed, or Ryan should be barred from testifying in the second trial.
¶ 32 At a hearing on May 5, 2017, the State asserted that it did not learn of the recording until
one of its meetings with Ryan, after a continuance for the second trial had been granted. The State
then immediately obtained a copy and thereafter provided it to defendant. The State represented
that it did not anticipate using the recording at the second trial. Defense counsel stated that he
would have proceeded differently in the first trial, including in his cross-examination of Ryan, had
he known of the recording. On May 10, 2017, the trial court denied defendant’s motion to suppress.
It stated that there was no evidence that the State knew of the recording prior to the first trial, even
though the State used due diligence to ensure that it would be aware of such evidence, and that the
State promptly notified defendant after learning of the tape’s existence. The trial court stated that
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2021 IL App (2d) 190473-Ueven if the State had violated discovery rules, the proper remedy would not be dismissal of the
charges but rather to provide defendant with more time to prepare for trial. The trial court stated
that because defendant had the recording in his possession since March 20, 2016, he had ample
time to get ready for trial.
¶ 33 2. Section 115-10 Motion
¶ 34 Also on February 24, 2017, defendant filed a motion seeking to bar the admission of the
section 115-10 statements. He argued that he was receiving a new trial because the trial court ruled
that these statements should not have been admitted in the first trial as A.P.H.’s testimony failed
to accuse him of wrongdoing. Defendant argued that “[s]ince there was no direct evidence to
support the allegations set forth in the Indictment, the State has failed and cannot present sufficient
evidence to support the admission of the l15-10 testimony at a second trial.” He argued that “[b]y
reason of the fact that the 115-10 testimony fail[ed] to corroborate any allegations of wrongdoing,
it [was] neither reliable nor admissible.”
¶ 35 The trial court denied the motion on May 10, 2017. It stated that a court may make a
reliability determination under section 115-10 without the child’s testimony and that A.P.H.’s
failure to testify as to any specific acts was based on the State’s line of questioning, as opposed to
her testifying that nothing happened with her and defendant in bed. The trial court stated that
A.P.H.’s testimony therefore did not affect the determination that the time, content, and
circumstances of the prior statements provided sufficient safeguards of reliability.
¶ 36 3. Additional Charges
¶ 37 On July 31, 2017, the State charged defendant with an additional four counts of aggravated
criminal sexual abuse (eight counts total) and four counts of predatory criminal sexual assault of a
child (720 ILCS 5/11-1.40(a)(1) (West 2012)). Counts 1 through 4 were the original charges, and
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2021 IL App (2d) 190473-Ucounts 5 through 10 charged defendant with predatory criminal sexual assault of a child. Counts
5, 6, and 7 alleged that defendant, who was over 17, committed an act of sexual penetration in that
he put his penis in the mouth of A.P.H., who was under 13. Counts 8 through 10 alleged that he
put his penis on her vagina. Counts 11 through 14 alleged aggravated criminal sexual abuse in that
defendant put his penis on A.P.H.’s arm for sexual gratification (counts 11 and 13) and on her face
(counts 12 and 14).
¶ 38 4. Word Cards
¶ 39 Prior to defendant’s second trial, the State filed a motion asking that A.P.H. be allowed to
testify with visual aids, specifically to be allowed to use cards with the words “penis,” “testicle,”
and “vagina” instead of saying these words out loud. The trial court addressed the motion on
November 5, 2018, before beginning defendant’s bench trial. The State stated that during A.P.H.’s
2017 interview at the Children’s Advocacy Center (CAC interview) as well as in interviews with
the prosecutor, A.P.H. did not speak the aforementioned words because she associated them with
terrible things. The State asserted that it had 11 clips of the 2017 CAC interview where A.P.H.
refused to use the words and resorted to using hand signals. The State argued that the words were
important to the case and that using the cards would aid in A.P.H.’s testimony and enhance
defendant’s ability to cross-examine her. Defense counsel objected, stating that A.P.H. was 14
years old and did not suffer from a disability. He argued that A.P.H. could instead use slang terms
or her own words and that using the word cards would affect the ability to assess A.P.H.’s
demeanor and credibility. The trial court ruled that the cards were demonstrative evidence that
would assist the trier of fact in understanding A.P.H.’s testimony. It stated that the dangers of
confusion or any other negative effects would be mitigated because defendant was having a bench
trial, and it would be paying attention to A.P.H.’s demeanor and the manner in which she testified.
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2021 IL App (2d) 190473-U¶ 40 5. Testimony
¶ 41 The State informed the court that it would not be prosecuting two of the counts of predatory
criminal sexual assault of a child, specifically counts 9 and 10. A.P.H. then provided the following
testimony. She was 14 years old and a freshman in high school. She lived with her mother and
stepfather in Plainfield. In the days leading up to her eighth birthday, she lived in Montgomery
with her mother and defendant. She saw an ant on the top of her bottom bunk bed, so she did not
want to sleep in her bed anymore. A.P.H. therefore began alternatively sleeping with Ryan, who
slept in the extra room, and defendant, who slept in the master bedroom. At school around that
time, A.P.H. had heard from other kids that kissing caused pregnancy. That did not seem right to
her because her parents kissed, but she did not have a sibling.
¶ 42 The assistant state’s attorney asked if A.P.H. knew the difference between a man’s and a
woman’s private parts. She answered in the affirmative. He asked if she was comfortable saying
those words out loud, and she replied no. In response to questioning, she testified that she would
be more comfortable using the word cards. The assistant state’s attorney showed her drawings of
a man and woman with different parts highlighted, and A.P.H. identified the highlighted parts with
the word cards.
¶ 43 A.P.H. then continued with her testimony. Shortly before her eighth birthday, she was in
defendant’s home office while he was there. On the monitor, she saw a woman’s mouth on a man’s
“penis.” 2 She may have seen something like that previously in a movie. Defendant turned off the
monitor. The image confused A.P.H. and made her curious.
2
A.P.H. used the word cards with “penis,” “testicles,” and “vagina” throughout her
testimony, rather than saying these words out loud. We use quotations to indicate when she used
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2021 IL App (2d) 190473-U¶ 44 One night shortly thereafter, while getting in bed with defendant, she asked him if kissing
made a woman pregnant. He said no, and she asked how babies were created. Defendant explained
the process to her, “[l]ike in health class.” Defendant was wearing boxers, and he showed her his
penis through the opening in the boxers. It was the first time A.P.H. had seen an adult male penis.
He then played a game where he put his “testicles” around his “penis,” and the penis was supposed
to be a present. The same night, A.P.H. put her hand on defendant’s “penis,” which was hard. She
did not keep her hand still but rather “[m]oved it” at defendant’s request. She put her hand on
defendant’s penis on more than two other nights.
¶ 45 Also, on a night leading up to her eighth birthday, defendant put his pinky finger in her
mouth before putting his “penis” in her mouth. His penis was hard. The first time, A.P.H. said that
it tasted bad. Defendant said that there was something that could help, but they could not use it
because Ryan would smell it. Defendant put his penis in her mouth on more than two different
nights.
¶ 46 On another night around the same time, defendant put his penis in her “vagina.” A.P.H.
was awake and sitting on the bed when this happened. Defendant’s penis was hard, and he asked
her if it felt good. She said no. This occurred one time.
¶ 47 There were also times when A.P.H. was sleeping with defendant when she woke up in the
middle of the night and noticed that defendant was touching her with his “penis.” He did this on
the side of her body and on her face, each more than once.
a word card. Where these words do not have quotations marks, A.P.H. was responding to the
assistant state’s attorney’s questions that used those words.
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2021 IL App (2d) 190473-U¶ 48 The last time defendant put his penis in A.P.H.’s mouth, he was standing at the end of the
bed, and he asked her to get a towel so the sheet would not get dirty. He put the towel on the end
of the bed and touched his “penis.” A.P.H. saw something come out and go on the towel. Defendant
told her not to tell Ryan, but A.P.H. did not remember if he said why. A.P.H. did not sleep with
defendant that night but rather went into the bathroom, where Ryan was, and talked to her.
¶ 49 A.P.H. did not remember where the family went for her birthday, or what she did after
school that day. Around that time, she and Ryan would bathe together on occasion, with Ryan
facing her in the tub. Ryan did not talk to A.P.H. about body parts at these times. However, A.P.H.
was watching a lot of scary movies, and Ryan would explain what was happening if there was a
“make-out scene.” A.P.H. remembered testifying at a prior trial, and she agreed that she did not
previously testify that she touched defendant’s penis with her hand or that he touched her vagina.
Aside from the trial, A.P.H. had talked to other people about defendant’s conduct, and she did not
tell them these things, either.
¶ 50 A.P.H. met with “Mu” 3 in July 2017, before the current trial, and they recapped her
previous testimony. Mu said that A.P.H. “need[ed] to talk more, like not freeze up,” which was
what had happened in the first trial. A.P.H. made additional allegations against defendant after
meeting with Mu, but it came from information that A.P.H. had been holding for several years.
She had not previously thought about the other incidents before 2017. Prior to making the new
allegations, A.P.H. had looked at porn sites. Defense counsel asked what kind of porn sites A.P.H.
had been looking at, and the State objected. The trial court overruled the objection but stated that
counsel was “not going to have a long leash on this.” A.P.H. answered “I don’t know” to the
3
The parties stipulated that “Mu” was Assistant State’s Attorney Nemura Pencyla.
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2021 IL App (2d) 190473-Uquestions of what kind of porn sites she was looking at and whether the sites had men and women.
A.P.H. also did not know if Ryan had said that adult male testicles were like two balls with hair
around them.
¶ 51 Ryan provided testimony consistent with her testimony in the first trial regarding the
family’s sleeping arrangements and A.P.H.’s statements to her while taking a bath. Ryan
additionally provided the following testimony. She was familiar with A.P.H.’s description of
defendant pulling his testicle skin over his penis because defendant had done that in front of Ryan
numerous times after having sex. A.P.H. said that she had played that game and also the game
where they pretended that defendant’s penis was a marker many times.
¶ 52 Ryan planned to confront defendant the next day during A.P.H.’s tae kwon do class. In
preparation, she cued up an e-mail that would automatically be sent to her mother the next morning
saying that if she received the e-mail, Ryan had confronted defendant, and something bad had
happened. Ryan also hid a small voice recorder in her bra. It recorded everything that was said that
evening, up until Ryan went to bed. The State played two excerpts from the recording. In the first
one, Ryan described the game with the testicle skin to defendant and said that he had also done
that with Ryan, and defendant began breathing hard and crying. In the other excerpt, Ryan had
A.P.H. explain what she told her in the bathtub about the games. Defendant asked A.P.H. who she
did this with, and she said “you and me.” Defendant then began to cry.
¶ 53 Ryan had talked with defendant about calling the police, and he said that the police would
not even look at anyone else and would “crucify” him. Ryan contacted the police later that night,
and they just took some information and said that someone would contact her to set up an interview
for A.P.H. Defendant was not taken into police custody, but “the decision was that he would leave
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2021 IL App (2d) 190473-Uthe house for the night.” He came back to the house only once after that, to get his things. The
following month, Ryan filed for divorce.
¶ 54 When Ryan and defendant were married, they used two sexual aids that had aromas. One
was a minty menthol gel for oral sex, and the other was a fruity one that would get hot when you
blew on it. They were kept in a box on a deep shelf in their closet, and to the best of Ryan’s
knowledge, A.P.H. had never seen them.
¶ 55 A.P.H. currently had a phone, and Ryan made it clear to her that Ryan would have access
to the phone’s search history. Before July 22, 2017, Ryan and A.P.H. had discussed the upcoming
trial with the State’s Attorney’s Office. Sometime during the week of July 22, 2017, Ryan noticed
from the search history that A.P.H. had looked at several videos on Pornhub on her phone. Ryan
discussed the situation with A.P.H., who said that she would not look at porn sites again. On July
22, 2017, Ryan learned new information from A.P.H. about her contact with defendant. Ryan
shared this information with the State’s Attorney’s Office.
¶ 56 At the first trial, Ryan did not mention the audio recording because no one asked her about
it. She believed she told a detective about the recording when she gave her original statement. Her
recollection was that she was told that it was not something they could use. Ryan did not think that
the subject came up in the draft e-mail to her mother, which she never sent.
¶ 57 Buddy, Marmo, and Hawley provided testimony consistent with their testimony at the first
trial. Buddy additionally testified that A.P.H. was identified as needing educational support.
Hawley testified that during the course of her 2012 interview with A.P.H., A.P.H. used the word
penis several times.
¶ 58 Defendant moved for a directed finding, and the trial court denied the motion. Defendant
then testified; we summarize his testimony. During the time frame of December 1, 2011, to January
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2021 IL App (2d) 190473-U4, 2012, A.P.H. never asked about how pregnancy occurred, and he never had any sexual contact
with her or showed her his penis. Defendant denied that he and Ryan used sexual aids together,
but rather she had aids for herself. He had never pulled the skin surrounding his testicles over his
penis. On January 4 or 5, 2012, there was no divorce pending between him and Ryan, but they
talked about it frequently. Defendant wanted to divorce Ryan because he caught her showing her
breasts to a man online in the summer of 2011, and she would not discuss it. After that they were
like roommates, except when dealing with A.P.H.
¶ 59 Defendant left the house on January 5, 2012, because one of the officers said that it would
be best if defendant left. Defendant also believed that he needed to let law enforcement do their
job, and he did not want them to say that he had tainted the investigation in any way. Defendant
admitted that he did not say anything on the recording after Ryan asked if he was going to tell her
that A.P.H. was lying, that he did not say, “I didn’t do that” when A.P.H. was talking about balls
or mentioned pulling skin over the penis, and that he did not say anything when A.P.H. said “me
and you.” Defendant was silent on the recording when the allegations were made because he was
terrified that people would believe the allegations and that he would end up dead or killed in prison.
¶ 60 Defendant’s sister testified that she stayed with the family beginning on October 7, 2011,
for three days. She spent time with defendant and A.P.H. together and Ryan and A.P.H. together,
but not with all three of them at once. The atmosphere was “kind of tense.” She did not know if
the failure to interact was a long-term issue or a short-term fight.
¶ 61 6. Trial Court’s Ruling
¶ 62 The trial court issued its ruling on November 7, 2018, stating as follows. It considered
several factors in weighing A.P.H.’s and defendant’s credibility. It considered their demeanor,
physical appearance, manner in which they testified, and the substance of their testimony. It also
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2021 IL App (2d) 190473-Uconsidered that there was no mention of additional allegations until July 2017, which was five
years after the initial allegations and three years after the first trial. It considered A.P.H.’s
demeanor during the VSI and her statements about regretting telling Ryan because of how it
affected the family. The trial court considered that A.P.H. used word cards instead of verbally
saying the words, and her physical movements and mannerism while using the cards. It had
considered Ryan’s recording for the sole purpose of the effect on defendant. It gave zero weight
to the excerpts of the audio tape where defendant did not respond when A.P.H. was in the car
because it was unwilling to label his silence as consciousness of guilt. It did give some weight to
defendant’s silence during the recording when Ryan and defendant were alone. Ryan said that
A.P.H. had described pulling his testicles over his penis, and that Ryan knew what A.P.H. was
talking about because defendant had jokingly done that when he and Ryan were in bed together
after having sex. Defendant remained silent, which was contrary to his testimony that he had never
done that before.
¶ 63 The trial court found that A.P.H. was credible in her claims considering the totality of the
circumstances, and it found defendant guilty of all 12 charges.
¶ 64 Defendant filed a motion for judgment n.o.v. or for a new trial on December 5, 2018, and
an amended motion on February 18, 2019. The trial court denied the motion on March 18, 2019.
On May 1, 2019, it sentenced him to five years’ imprisonment for each of the eight aggravated
criminal sexual abuse charges, to run concurrently, and 10 years’ imprisonment for each of the
predatory criminal sexual assault of a child charges, to run consecutively, for a total of 45 years’
imprisonment. On June 3, 2019, the trial court denied defendant’s motion to reconsider his
sentence.
¶ 65 Defendant timely appealed.
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2021 IL App (2d) 190473-U¶ 66 II. ANALYSIS
¶ 67 A. Motion Taken with Case
¶ 68 We begin by addressing the State’s motion to strike portions of defendant’s brief; we
ordered the motion to be taken with the case. The State argues that defendant’s brief contains 45
footnotes, many of which are lengthy and contain substantive material, in violation of Illinois
Supreme Court Rule 341 (eff. Oct. 1, 2020). The State maintains that some footnotes additionally
contain material that is outside of the record, and other footnotes contain improper argument or
comment. The State asks that we strike or disregard the footnotes, particularly certain footnotes
that it specifies in its motion.
¶ 69 Defendant argues that motions to strike are disfavored, that his footnotes are not in
violation of any Illinois Supreme Court Rules, and that “the footnotes are the only way to get
Defendant’s point across and give context” for the issues on appeal, given the complexity of the
case with two trials spanning six years.
¶ 70 We note that defendant’s brief contains 42 rather than 45 footnotes, but we agree with the
State that such a volume of footnotes runs contrary to the rule that “[f]ootnotes are discouraged”
(Ill. S. Ct. R. 341(a) (eff. Oct. 1, 2020)). We also agree with the State that some of the footnotes
improperly contain material outside the record, and that other footnotes contain improper argument
or comment. We will disregard the offending footnotes and caution defendant that future use of
footnotes in this manner may result in the court striking them.
¶ 71 B. Brady Violation
¶ 72 Turning to the merits, defendant first argues that the State violated Brady by failing to
timely disclose Ryan’s recording. Defendant argues that that the tape contained favorable evidence
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2021 IL App (2d) 190473-Udemonstrating his innocence, and that had the State disclosed the tape before the first trial,
defendant would have been acquitted, thus precluding the second trial.
¶ 73 The United States Supreme Court established in Brady that the State has a duty to disclose
favorable evidence to a defendant where the evidence is material to either guilt or punishment,
regardless of the good or bad faith of the prosecution. Brady, 373 U.S. at 87; see also Ill. S. Ct. R.
412(c) (eff. Mar.1, 2001) (“[T]he State shall disclose to defense counsel any material or
information within its possession or control which tends to negate the guilt of the accused as to the
offense charged or which would tend to reduce his punishment therefor.”). Our supreme court has
held that to establish a Brady violation, a defendant must show that: “(1) the undisclosed evidence
is favorable to the accused because it is either exculpatory or impeaching; (2) the evidence was
suppressed by the State either wilfully [sic] or inadvertently; and (3) the accused was prejudiced
because the evidence is material to guilt or punishment.” People v. Beaman, 229 Ill. 2d 56, 73-74
(2008). We review a trial court’s ruling on a Brady claim for manifest error because it requires
applying established law to facts. Id. at 73. Manifest error is error that is clearly evident, plain, and
indisputable. Id.¶ 74 The trial court ruled that the State had not violated discovery rules, as the State promptly
informed defendant about the recording after learning of its existence. The trial court further stated
that even if there was a discovery violation, the appropriate remedy would be to give the defense
enough time to prepare for trial after learning of the recording, and that defendant had ample time
to prepare for trial.
¶ 75 The State argues that the trial court’s ruling was correct, especially considering that even
assuming a Brady violation occurred, defendant had already received the appropriate remedy, a
new trial, via other means. It argues that defendant cites no authority for the proposition that a
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2021 IL App (2d) 190473-UBrady violation could lead to a second trial being barred by double jeopardy, but rather federal
courts have rejected such an argument. See United States v. Lewis, 368 F.3d 1102, 1107 (9th Cir.
2004) (“Barring a retrial for the prosecution’s alleged intentional Brady violations would be an
unnecessary expansion of the Double Jeopardy Clause.”). The State additionally argues that
defendant’s attempt to relitigate the sufficiency of the evidence at the first trial is prohibited by our
2016 decision under the law-of-the-case doctrine, as we already held that because defendant’s
convictions were reversed due to trial errors, “there was no event terminating the original jeopardy,
and a retrial is not prohibited, regardless of the sufficiency of the evidence at the first trial.”
Hemphill, 2016 IL App (2d) 151196-U, ¶ 34.
¶ 76 Defendant responds, among other things, that he is not improperly linking a Brady
violation to a double jeopardy claim. Rather, he is arguing that had the Brady evidence been timely
disclosed, any reasonable fact finder would have found him not guilty at the first trial, such that a
second trial would not have taken place. Defendant asserts that adding the tape to the already weak
evidence at the first trial, which included A.P.H.’s testimony that he did not do anything wrong,
would clearly have resulted in an acquittal. He argues that “portions of the recording establish
beyond a shadow of a doubt that [he] is innocent.”
¶ 77 Defendant’s argument is without merit. Assuming, arguendo, that a Brady violation
occurred, “[t]he remedy for a Brady violation is a new trial” (People v. Maiden, 318 Ill. App. 3d
545, 547 (2001)), which is what defendant had already received due to other circumstances.
Defendant does not claim that he did not have enough time to prepare for the second trial after
receiving the recording, which is understandable considering that he obtained the recording on
March 20, 2016, and his bench trial began over two years later on November 5, 2018. Defendant
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2021 IL App (2d) 190473-Ucites no authority for the proposition that a Brady violation allows the court to reassess the evidence
at the first trial and determine whether the withheld evidence would likely have led to an acquittal.
¶ 78 We also disagree with his characterization of the recording as clearly demonstrating
defendant’s innocence. Indeed, defendant sought to suppress the recording at the second trial, and
even with the recording in evidence, he was still found guilty of all charges. The recording
contained evidence supporting A.P.H.’s testimony, in that she described the game of putting the
testicle skin around the penis, and the penis was supposed to be a present inside. Defendant asked
who she did this with, and A.P.H. replied, “You and me.” A.P.H. then mentioned the marker game.
The trial court also specifically cited defendant’s silence to some of Ryan’s statements when they
were alone in the car. The outcome in this case largely rested on a credibility determination
between A.P.H. and defendant, and the recording could not have resolved this issue, even if
defendant had adamantly denied the allegations the whole time.4
¶ 79 Accordingly, we find no manifest error in the trial court’s ruling on defendant’s Brady
claim.
¶ 80 C. Section 115-10
¶ 81 Defendant next argues that the trial court erred in allowing the section 115-10 statements
at the second trial. He argues that section 115-10 allows only hearsay statements as to charged
acts, but the “2017 charges about oral sex, vaginal penetration and ejaculation bore no relation to
the 2012 statements the adult witnesses attributed to [A.P.H.]” Defendant additionally asserts that
the timing, content, and circumstances of the statements bar admission. He maintains that A.P.H.
allegedly had a discussion with Ryan shortly after the alleged abuse, but then days and weeks
4
We address the recording in more detail in other parts of the disposition.
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2021 IL App (2d) 190473-Upassed before she allegedly made statements to Hawley and school personnel. Defendant compares
this case to People v. Zwart, 151 Ill. 2d 37, 46 (1992) (three-year-old victim was interviewed by
at least three people before she admitted that she was abused or implicated the defendant, which
showed substantial adult intervention). He argues that the circumstances failed to provide required
safeguards of reliability because Ryan forbade him from contradicting A.P.H.’s allegations in front
of her; she asked leading questions of A.P.H. in the car; the responding officer assured A.P.H. that
she had done nothing wrong and that defendant would not go to jail; and Hawley directed A.P.H.
during the VSI and said that she could leave after they finished talking about the incident.
Defendant contends that the record makes clear that A.P.H. was prompted and manipulated by
several outsiders.
¶ 82 Regarding the content of A.P.H.’s statements, defendant argues that there was little
consistency between what A.P.H. allegedly told Ryan, the school personnel, and Hawley. He
argues that Ryan said that she talked about a penis game whereas school personnel did not mention
such a game, but rather A.P.H.’s statements at school involved wanting a sibling and her parents
divorcing. Defendant maintains that at school, A.P.H. said that she knew what being “hard” meant,
but she did not say something similar to Ryan. Defendant also argues that at school A.P.H. said
that defendant tried to get in bed with her, which was untrue and inconsistent with anything she
said to anyone else.
¶ 83 Defendant argues that A.P.H.’s mental state further weighed against her reliability, in that
she needed extra help at school, she told school personnel about “how her head talked to her in
relation to her stories,” 5 she was obsessed about where babies came from, she repeatedly asked to
5
At the section 10-115 hearing, Lipke, the school principal, testified that when he entered
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2021 IL App (2d) 190473-Usee defendant’s penis, she frequently brought up the topic of sex, she may have watched
pornography before her eighth birthday, she downloaded pornography at the age of 13, she had
been estranged from defendant for almost six years before testifying that he did anything wrong,
she took baths with her mother at “an advanced age,” and she slept with her parents because she
once saw an ant. Defendant additionally argues that A.P.H. had a strong motive to fabricate
because defendant had to leave as a result of the bathtub conversation, with only Ryan remaining,
and it was too late for A.P.H. to admit that she had told a fabricated tale or that Ryan had
misinterpreted what she was saying.
¶ 84 The State maintains that defendant’s initial argument that the section 115-10 testimony
related to uncharged conduct is wholly unsupported by the record, as the four counts at issue in
the first trial were also at issue in the second trial. The State further argues that the trial court’s
allowance of the section 115-10 statements was not an abuse of discretion.
¶ 85 Section 115-10 provides a hearsay exception for certain out of court statements made by a
victim in child sexual offense cases. 725 ILCS 5/115-10(a) (West 2012). Admissible testimony
includes “testimony of an out of court statement made by the victim describing any complaint of
such act or matter or detail pertaining to any act which is an element of an offense which is the
subject of a prosecution for a sexual or physical act against that victim.” Id. 115-10(a)(2) (West
Marmo’s office, A.P.H. said that “she was upset about her parents being divorced and sometimes
she hears things and hears what her head is saying. And one day her head wasn’t really saying
anything. From what I can recall, it was one day her head wasn’t talking to her, and then all of a
sudden her parents were getting divorced.”
- 25 -
2021 IL App (2d) 190473-U2012). The testimony may be admitted only if (1) the trial court finds at a hearing conducted
outside the jury’s presence that the time, content, and circumstances of the statement provide
sufficient safeguards of reliability, and, as relevant here, (2) the child testifies at the proceeding.
Id. 115-10(b) (West 2012). “Among the factors to be considered in making a reliability
determination are (1) the child’s spontaneity and consistent repetition of the incident, (2) the
child’s mental state, (3) use of terminology unexpected of a child of a similar age, and (4) the lack
of motive to fabricate.” People v. Cookson, 335 Ill. App. 3d 786, 791 (2005). A trial court’s
decision to admit evidence under section 115-10 will not be reversed absent an abuse of discretion.
People v. Applewhite, 2016 IL App (4th) 140558, ¶ 57. An abuse of discretion occurs where the
trial court’s determination is arbitrary, fanciful, or unreasonable, or where no reasonable person
would take the trial court’s view. Id. ¶ 57.
¶ 86 The trial court made many findings regarding the section 115-10 statements. Regarding
the statements in the bathtub, the trial court stated that A.P.H. initiated the conversation, Ryan’s
questioning was not inappropriate or leading, A.P.H. used terminology appropriate for her age,
and the statements appeared to be completely voluntary and not the product of adult manipulation.
The trial court made a similar finding about A.P.H.’s statements when she was in the car with her
parents, additionally finding that A.P.H. and Ryan had no reason to fabricate the statements. For
the VSI with Hawley, the trial court stated that Hawley generally asked appropriate open-ended
questions of A.P.H. during the interview, but occasionally was required to redirect A.P.H. to get
her to respond. The trial court stated that at one point, Hawley did say that after they finished
talking about it, A.P.H. could go back to her mother. A.P.H. used consistent terminology. The trial
court again stated that A.P.H had no reason to fabricate the statements, but in fact had reason to
recant, as her statements caused defendant to move out of the family home. The trial court stated
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2021 IL App (2d) 190473-Uthat it would have been understandable if A.P.H. had recanted her statements in an attempt to
reunify her family, but she did not. As for A.P.H.’s statements to Marmo, the trial court found that
A.P.H. initiated the conversation and there was no evidence that Marmo asked her any leading
questions, or that either of them had reason to fabricate.
¶ 87 We conclude that the trial court did not abuse its discretion in allowing A.P.H.’s prior
statements into evidence under section 115-10. As the trial court pointed out, A.P.H.’s statements
in the bathtub and to school personnel were spontaneous, and she did not have a motive to fabricate
any of the statements. To the contrary, she expressed in her VSI that she wished she had not told
Ryan anything because then “[n]one of this would have happened,” her dad would still be there,
and “[n]o one would be mad.” We recognize that Hawley told A.P.H. at one point in the interview
that after they finished talking, A.P.H. could go back to Ryan, but Hawley did so in an attempt to
get A.P.H. to focus, and she asked A.P.H. open-ended questions. Further, Hawley made this
statement more than halfway through the interview, after A.P.H. had already told Hawley most of
what she had told Ryan. These considerations undermine defendant’s argument that A.P.H.’s
statements were prompted and manipulated by outsiders, and distinguish this case from Zwart.
That A.P.H. needed extra help at school, was very scared of ants, or was curious about babies and
body parts does not equate to a mental state that made her statements inherently unreliable.
¶ 88 The statements did not directly describe the elements of the predatory criminal sexual
assault of a child charges, but defendant still faced the original aggravated criminal sexual abuse
charges, in addition to others. Moreover, Buddy testified that A.P.H. reported sleeping with
defendant, and Marmo testified that A.P.H. told her that she asked defendant about sex, that he
had shown her “his parts,” and showed her what being “hard” meant. These statements relate to
all of the charges. Though defendant argues there was no evidence that he tried to get into A.P.H.’s
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2021 IL App (2d) 190473-Ubed with her, Buddy testified that A.P.H. said that defendant asked her to sleep in his bed or asked
her to sleep with him. We note that defendant never contradicted Ryan’s and A.P.H.’s testimony
that in the days leading up to her eighth birthday, A.P.H. was sleeping at times with Ryan and at
other times with defendant. As for the timing of the statements, the bathtub conversation took place
on January 4, 2012. A.P.H. spoke to Hawley less than one week later, on January 22, 2012, and
told her substantially similar things, such as that defendant showed her his penis, that he let her
touch it, that that they played the marker game, and that defendant told A.P.H. not to tell Ryan or
he could go to jail. A.P.H.’s conversations with school personnel occurred less than one week of
her interview with Hawley. It is logical that A.P.H. mentioned her parents divorcing to Marmo but
not during the bathtub incident, as Ryan testified that her relationship with defendant had been
good, and that she filed for divorce after A.P.H.’s outcry. In sum, we cannot say that the trial
court’s allowance of the section 115-10 was arbitrary, fanciful, or unreasonable, or that no
reasonable person would take the trial court’s view.
¶ 89 D. Sufficiency of the Evidence
¶ 90 Defendant’s third argument on appeal is that the State presented insufficient evidence on
which to base any of the convictions. Defendant argues that the trial court failed to consider various
issues, namely A.P.H.’s prior testimony that nothing happened; his refusal of Ryan’s invitation to
“let it go”; Ryan’s direction to defendant that he must not suggest to A.P.H. that she was lying; his
refusal to confront A.P.H. without Ryan’s presence for fear that he would make her feel bad or
appear to coerce her; the multiple inconsistencies between Ryan’s and A.P.H.’s version of what
happened in the bath; the complete unbelievability that anyone would sexually assault a child
vaginally and orally, then masturbate to a climax while engaging in a discussion about how to
enhance the ejaculate’s flavor, while in an unlocked bedroom with the child’s mother just across
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2021 IL App (2d) 190473-Uthe hall; his character and history suggesting that he was incapable of such conduct; Ryan’s
flashing of her breasts online, immediate divorce, remarriage, and full custody of A.P.H. “after
successfully driving [defendant] from the home”; the responding officer’s immediate belief that
defendant was guilty; the police officer’s assurances to A.P.H. that she had done nothing wrong
and was not in trouble; Ryan’s “reward” to A.P.H. of a day off of school; and that Ryan told A.P.H.
that defendant believed A.P.H. and agreed that what she said happened actually occurred.
¶ 91 Defendant argues that the trial court found defendant guilty because he allegedly did not
respond when Ryan said that she and defendant had played the penis game. Defendant argues that
in the recording, he either says “Yea” or “Nope” when Ryan says that defendant had previously,
as a joke, taken his testicle skin and stretched it over his penis to hide his penis. Defendant argues
that when Ryan said that it was like covering up his penis with a blanket, he replied, “That’s
disgusting.” 6 Defendant argues that the recording shows that he did not know what Ryan was
talking about, and when she explained further, he was not silent, but rather said that it was
disgusting. According to defendant, later in the recording, Ryan mentioned the same game, and
defendant replied, “That doesn’t make sense.” Shortly thereafter, defendant said, “We have never
played that kind of game so she couldn’t have overheard,” and Ryan replied, “Nope.” Defendant
argues that the conversation makes clear that he and Ryan had never played the game.
¶ 92 Defendant further points to A.P.H.’s testimony that the prosecutor reviewed her prior
testimony before defendant’s second trial and told her that she needed to say more. Defendant
argues that, for this reason, A.P.H. watched several pornographic movies and only then came up
6
Defendant’s comment of “That’s disgusting” actually occurs elsewhere in the recording,
which we subsequently discuss.
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2021 IL App (2d) 190473-Uwith allegations that completely contradicted her prior testimony and section 115-10 statements,
and involved vaginal penetration and oral sex. Defendant argues that he was offered a deal on the
eve of the second trial where he would avoid jail and prison, but he refused to plead guilty because
he was innocent. Defendant argues that the State needed to use word cards at the trial to carry its
burden, demonstrating the weakness of its evidence. Defendant asserts that the prosecutor led
A.P.H. through the entirety of her testimony with questions that required only using the word cards
or responding in the affirmative. Defendant argues that A.P.H. also provided inconsistent
testimony, such as testifying that his penis was the first adult male penis she had seen, even though
she had testified that she had previously seen one on his computer monitor and “probably” in a
movie. Defendant argues that the video could have been the basis for A.P.H.’s statements during
the bathtub conversation. Defendant also highlights her testimony that after he ejaculated onto a
towel, she went into the bathroom and told Ryan, which contradicts Ryan’s testimony about the
bathtub conversation. Defendant further points out that A.P.H. testified that she and Ryan never
talked about male body parts yet also testified that Ryan had explained movie “make-out” scenes.
Defendant asserts that it is clear from the recording that A.P.H. frequently talked about sexual
organs with both parents. He argues that the recording further reveals that he never tried to stop
Ryan from calling the police, but rather, when A.P.H. asked if they could just let everything go,
he responded, “No. It’s pretty serious [A.P.H.]. We can’t just forget it.”
¶ 93 Defendant additionally argues that A.P.H. exhibited severe memory problems such as not
remembering going out to dinner or taking a bath with Ryan on A.P.H.’s birthday, or even whether
the pornography videos she viewed involved men and women. Defendant reasserts his argument
about A.P.H.’s mental state, and he points out that Ryan did not disagree on the recording when
he stated that A.P.H. insisted that something was true if she was confronted about it. Defendant
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2021 IL App (2d) 190473-Uargues that one can reasonably infer that because A.P.H. thought that both of her parents believed
whatever the bath story had morphed into, she stuck to it. He also asserts that the record reveals
that A.P.H. never looked at the judge while testifying, and that she spoke so softly that the
prosecutor had to repeatedly tell her to speak up, both of which decrease her credibility. Defendant
contends that contrary to the State’s theory, his and Ryan’s marriage was all but finished, including
that defendant initially thought that Ryan wanted to have a private conversation with him because
she did not love him anymore and was leaving him.
¶ 94 The State argues that defendant improperly references numerous parts of the record that do
not fall within the realm of evidence adduced at trial, including testimony from the section 115-10
hearing, testimony from the first trial, argument at different hearings, and evidence from
sentencing. The State asserts that defendant also refers to plea negotiations, which is not only
irrelevant but is also unsupported by citations to the record. The State further argues that defendant
cites numerous portions of the recording that were not presented by either party at trial or
admissible as substantive evidence. That State argues that the trier of fact had all of the relevant
information before it and opted to believe A.P.H., and that we have no basis to disturb that finding.
¶ 95 When examining 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. Jackson v. Virginia,
443 U.S. 307, 319 (1979); People v. Collins, 106 Ill. 2d 237, 261 (1985). The trier of fact has the
responsibility to assess witnesses’ credibility, weigh their testimony, resolve inconsistencies and
conflicts in the evidence, and draw reasonable inferences from the evidence. People v. Sutherland,
223 Ill. 2d 187, 242 (2006). We will not reverse a criminal conviction based on insufficient
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2021 IL App (2d) 190473-Uevidence unless the evidence is so unreasonable, improbable, or unsatisfactory that it creates a
reasonable doubt of the defendant’s guilt. People v. Gray, 2017 IL 120958, ¶ 35.
¶ 96 We agree with the State that we are limited to looking at the evidence from defendant’s
second trial in assessing whether there was sufficient evidence. However, we disagree that we may
consider only the portions of the recording that the State played for the trial court, as the entire
recording was admitted into evidence without limitation. Indeed, in closing argument, the State
argued that defense counsel was wrong to suggest that the recording contained parts that would
help defendant, as “the whole recording was admitted into evidence. The entire thing.” We also
note that although defendant argues that A.P.H.’s direct examination was overly leading, he does
not cite objections to the questions in the record.
¶ 97 We conclude that, viewing the evidence in the light most favorable to the State, there was
sufficient evidence to prove defendant guilty of all charges beyond a reasonable doubt. According
to Ryan, prior to A.P.H.’s birthday, A.P.H. began sleeping with Ryan and defendant on different
days because she was scared to sleep in her own bed. Ryan testified that when she was giving
A.P.H. a bath on her birthday, A.P.H. said that she knew the difference between girls’ and boys’
parts and that she had seen and touched defendant’s private parts at her request. A.P.H. said that
there was a part with soft skin and hair on it, with two balls inside, and another part that stuck out
in the front, with a hole in it where the pee came out. A.P.H. then described a game where
defendant stretched the skin of the testicles over the penis, and the penis was a present or a piece
of candy inside.
¶ 98 Defendant argues that on the recording he denied playing such a game, but after Ryan said
that defendant had stretched his testicle skin over his penis in front of her, she asked, “You know
what I am talking about, right?”, and defendant simply made a monosyllabic response that sounded
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2021 IL App (2d) 190473-Ulike “Yeah.” He did not say anything else showing that he did not know what Ryan was talking
about. Further, defendant did not say that this game was disgusting, but rather made this comment
previously in the recording, after Ryan said that A.P.H. described a penis very graphically. Later
in the recording, Ryan talked about putting the testicle skin over the penis and opening it like it
was a present, and sometimes it was a piece of candy for A.P.H. At that point defendant said, “That
doesn’t make sense.” He then said that he and Ryan had never played that kind of game, so A.P.H.
could not have overheard, and Ryan agreed, saying, “Nope.” This exchange can be interpreted as
defendant and Ryan agreeing that they had not played the type of game where they pretended that
releasing the testicle skin was like opening a present, with the penis being like a piece of candy
inside.
¶ 99 In any event, regardless of whether defendant acknowledged on the recording having
previously engaged in such actions, Ryan testified that defendant had pulled his testicle skin over
his penis numerous times in front of Ryan after having sex. Ryan testified that A.P.H. described
another game where the penis was a marker. She also said that if Ryan told anyone what she said,
defendant could go to jail.
¶ 100 Ryan’s recording of defendant and A.P.H. in the car includes A.P.H.’s description of the
game with the testicle skin over the penis, and when defendant asked who she did this with, A.P.H.
replied, “You and me.” A.P.H. also briefly talked about the marker game and defendant saying he
could go to jail. In A.P.H.’s VSI with Hawley, she described asking defendant about how
pregnancy occurs, his explanation, her asking to see his penis, defendant showing her his penis by
pulling it out through the hole in his pajama shorts, A.P.H. asking to touch it, and defendant letting
her. A.P.H. also described the marker game to Hawley and defendant saying that if A.P.H. told
Ryan, he could go to jail. Marmo testified that A.P.H. told her that she had asked defendant about
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2021 IL App (2d) 190473-Uboy and girl parts, and that he had shown her his parts. She also told Marmo that defendant showed
her what it meant to be “hard” and that there was a lot more she could not tell her. All of this
evidence supported A.P.H.’s testimony at trial that in the days leading up to her eighth birthday,
she asked defendant while getting in bed with him how babies were created. A.P.H. testified that
he explained the process and showed her his penis through the opening in his boxers. A.P.H.
testified that they played a game where defendant put his testicle around his penis, and the penis
was supposed to be a present. She testified that she touched defendant’s penis, and it was hard.
¶ 101 A.P.H. additionally testified that defendant told her to move her hand on defendant’s penis
on more than two nights. She further testified that defendant put his pinky in her mouth one night
before putting his penis in her mouth. When A.P.H. told him that it tasted bad, he said that there
was something that could help, but they could not use it because Ryan would smell it. Ryan
correspondingly testified that she used two sexual aids with defendant that had aromas, one of
which was a minty menthol gel for oral sex. A.P.H. testified that defendant put his penis in her
mouth on more than two different nights. She also testified that he put his penis in her vagina one
time and asked if it felt good, and she said no. A.P.H. testified that she more than once woke up to
defendant touching her with his penis on the side of her body and on her face. A.P.H. further
described defendant ejaculating onto a towel on the bed. A.P.H. acknowledged that she had not
told anyone of these actions before 2017 but testified that it was information that she had been
holding for several years.
¶ 102 The “testimony of a single witness is sufficient to sustain a conviction if the testimony is
positive and credible, even if it is contradicted by the defendant.” People v. Harris, 2018 IL
121932, ¶ 27. Defendant highlights various inconsistencies and conflicts in the evidence and
challenges A.P.H.’s credibility, but it was up to the trier of fact to resolve these issues. Sutherland,
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2021 IL App (2d) 190473-U223 Ill. 2d at 242. Viewing all of the evidence in the light most favorable to the State, a rational
trier of fact could have found defendant guilty beyond a reasonable doubt of all charges.
¶ 103 E. Evidentiary Issues
¶ 104 Defendant next argues that the trial court erred in limiting cross-examination regarding
A.P.H.’s viewing of pornography, allowing her to testify with suggestive cue cards, and in failing
to review or ignoring the secret recording. We examine each issue in turn.
¶ 105 1. Cross-Examination on Pornography
¶ 106 Defendant argues that A.P.H. added graphic accusations of sexual assault only after
watching pornography, such that his counsel should have been permitted to explore her
pornography viewing without limitation. Defendant notes that when defense counsel asked A.P.H.
if she had searched porn sites, she responded, “That’s my business. But yeah.” When defense
counsel asked what kind of site she had been looking at, the State objected based on relevance.
The trial court overruled the objection but said that defense counsel was “not going to have a long
leash on this.”
¶ 107 Defendant cites People v. Phillips, 186 Ill. App. 3d 668, 678 (1989), where the court stated
that “[d]efense counsel is generally allowed wide latitude in cross-examining State witnesses for
the purpose of showing their bias or motive to testify falsely, but the evidence upon which such
inquiry by defense counsel is based cannot be remote or uncertain.” Defendant contends that the
State’s position was that A.P.H. was telling the truth because she otherwise could not have
described his penis and the sexual acts he perpetrated upon her. Defendant argues that his theory
was that A.P.H.’s pornography “habit” was the basis of her new testimony, rather than anything
that had transpired between them years earlier, and that this theory was not remote or speculative.
Defendant argues that A.P.H. was the only witness to the source of the new allegations, and the
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2021 IL App (2d) 190473-Ucase hinged on her credibility, so there should not have been any leash at all, much less a short
leash. He cites People v. Mason, 219 Ill. App. 3d 76 (1991), 7 where the court held that the trial
court erred in refusing evidence that the child victim had watched sexually explicit videotapes, as
it was evidence relevant to the source of the child’s knowledge of sexual conduct. Defendant
asserts that exploration of the topic was also necessary to show A.P.H.’s motivation to lie, as after
A.P.H. was caught watching pornography, she decided to transform herself from a child deserving
punishment into a victim deserving sympathy by creating new allegations against defendant.
¶ 108 The State argues that defendant had forfeited this issue because he failed to object at trial
and also did not raise the issue in his posttrial motion. See People v. Denson, 2014 IL 116231, ¶
11. The State also argues that defendant has not raised the issue of plain error, thereby forfeiting
plain error review on this claim. See People v. Hillier, 237 Ill. 2d 539, 545-46 (2010). On the
merits, the State argues that the trial court did not limit defense counsel’s ability to question A.P.H.
about any pornography she viewed.
¶ 109 In his reply brief, defendant argues that if he failed to preserve his argument, we should
review it for plain error. He cites People v. Williams, 193 Ill. 2d 306, 347-48 (2000), where our
supreme court stated that a defendant may raise the issue of plain error for the first time in a reply
brief.
¶ 110 The sixth amendment gives a criminal defendant the right “to be confronted with the
witnesses against him.” U.S. Const., Amend. VI. The Illinois Constitution contains the same
7
Defendant additionally cites a 2018 unpublished case, but only nonprecedential orders
entered on or after January 1, 2021, may be cited for persuasive purposes. Ill. S. Ct. R. 23(e)(1)
(eff. Jan. 1, 2021).
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2021 IL App (2d) 190473-Ulanguage. Ill. Const. 1970, Art. I, § 8 (amended Nov. 8, 1994). “The central concern of the
Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by
subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.”
Maryland v. Craig, 497 U.S. 836, 845 (1990). However, the “Confrontation Clause guarantees an
opportunity for effective cross-examination, not cross-examination that is effective in whatever
way, and to whatever extent, the defense might wish.” (Emphasis in original.) Delaware v.
Fensterer, 474 U.S. 15, 20 (1985). A trial court may impose reasonable limits on cross-
examination to assuage concerns about harassment, prejudice, jury confusion, witness safety, or
irrelevant questioning, though it must exercise its discretion to allow a defendant wide latitude to
establish witness bias, motive, or interest. People v. Pacheco, 2021 IL App 3d 150880-B, ¶ 66.
We review a limitation by the trial court of cross-examination for an abuse of discretion. People
v. Johnson, 2020 IL App (1st) 162332, ¶ 82.
¶ 111 We agree with the State that defendant failed to preserve this issue for review because he
did not object at trial and raise the issue in his posttrial motion. People v. Enoch, 122 Ill. 2d 176,
186 (1988). However, we also agree with defendant that he may assert plain error for the first time
in his reply brief. See Williams, 193 Ill. 2d at 347-48. The plain error doctrine allows a reviewing
court to consider an unpreserved error where either (1) a clear error occurs and the evidence is so
closely balanced that the error alone threatened to tip the scales of justice against the defendant, or
(2) a clear error occurs that is so serious that it affected the trial’s fairness and challenged the
integrity of the judicial process. People v. Sebby, 2017 IL 119445, ¶ 48. The first step in a plain
error analysis is to determine whether a clear or obvious error occurred. People v. Jackson, 2021
IL App (1st) 180672, ¶ 21.
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2021 IL App (2d) 190473-U¶ 112 We conclude that the trial court did not abuse its discretion, as its ruling that defense
counsel would have not have a “long leash” on the issue did not impede defense counsel’s cross-
examination of A.P.H. Counsel asked what kind of pornography sites A.P.H. looked at, and she
answered that she did not know. He asked if there were sites with men and women, and she gave
the same answer. He asked if she did not remember or did not want to remember, and she replied
that she did not remember. Defense counsel then moved on to another topic, showing that he was
not hampered in any way in his cross-examination by the trial court’s ruling, but rather by A.P.H.’s
responses. Moreover, A.P.H.’s statement that she did not even know whether the sites had men
and women could arguably impact her credibility, making it preferable to cease questioning her
on the issue. Defense counsel was also able to argue in closing that A.P.H.’s additional allegations
were consistent with what she viewed on pornographic websites.
¶ 113 Defendant alternatively argues that if the trial court did not abuse its discretion in applying
a “short leash,” then defense counsel was ineffective for not pressing the matter. He argues that
counsel failed to determine what A.P.H. watched and show that it was the basis for her revised
accusations against him.
¶ 114 For a claim of ineffective assistance of counsel, a defendant must satisfy the two-
pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984). People v. Hodges,
234 Ill. 2d 1, 17 (2009). The defendant must first establish that, despite the strong
presumption that trial counsel acted competently and that the challenged action was the
product of sound trial strategy, counsel’s representation fell below an objective standard of
reasonableness under prevailing professional norms such that he or she was not functioning
as the counsel guaranteed by the sixth amendment. People v. Manning, 227 Ill. 2d 403, 416
(2008). Second, the defendant must establish prejudice. People v. Valdez, 2016 IL 119860,
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2021 IL App (2d) 190473-U¶ 14. In most situations this is done by showing a reasonable probability that the outcome
of the proceeding would have been different absent counsel’s errors. Id. A failure to
establish either prong of the Strickland test precludes a finding of ineffectiveness. People
v. Peterson, 2017 IL 120331, ¶ 79.
¶ 115 We conclude that defendant cannot establish either prong of the Strickland test. He cannot
show that defense counsel’s representation was unreasonable because, as stated, A.P.H.’s
statement that she did not know whether the porn sites even contained men and women arguably
decreased her credibility on the issue, and given the lack of detail, counsel was able to argue in
closing that A.P.H.’s new allegations were based on the pornography that she viewed. Defendant
also cannot show prejudice because A.P.H. already stated that she did not remember what she saw,
such that additional questioning on this issue was unlikely to elicit more detail.
¶ 116 2. Word Cards
¶ 117 Defendant argues that in allowing the State to use word cards with A.P.H., the trial court
improperly permitted the State to obtain another advantage at the expense of his rights and the
pursuit of justice. Defendant asserts that this ruling amounted to the State improperly leading the
key witness in the case. Defendant argues that even assuming that such assistance would be
appropriate for a young child, it was not appropriate for A.P.H. because she knew the actual terms
from a young age, was educated about sex, and had viewed pornography. Defendant points out
that the trial court stated that the way to minimize any suggestive nature of the cards was to have
non-suggestive questioning by the State, but defendant argues that in addition to the cards, the
State led A.P.H. through all of her accusations, repeatedly obtaining one-word answers of “Yeah”
from her. Defendant asserts that it is also notable that A.P.H. was not presented with any cards to
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2021 IL App (2d) 190473-Ustate that he had not touched her improperly anywhere. According to defendant, the cards created
A.P.H.’s testimony rather than serving as demonstrative evidence to explain her testimony.
¶ 118 The State argues that defendant has forfeited his claim that the use of the cards resulted in
improper leading questions, as defendant objected to only a limited number of questions on the
basis that the questions were leading, and he did not include this claim in his motion for a new
trial. The State further notes that during argument, defense counsel stated that he was not accusing
the State of leading A.P.H. with the word cards. The State argues that the trial court did not abuse
its discretion in allowing A.P.H. to use the cards as demonstrative evidence, and even if error
existed, it would be harmless because the trial court concluded that the cards had very little impact
on its decision and resulted in no unfair prejudice to defendant.
¶ 119 We disagree with the State that defendant forfeited any portion of his argument, as he
strongly objected to the use of the word cards and included the issue in his posttrial motion. In
ruling on the issue of the word cards in defendant’s posttrial motion, the trial court stated that the
word cards served to allow A.P.H. to express herself “in a more succinct manner,” that the use of
the cards had very little effect on the trial, that the cards enhanced defense counsel’s ability to
confront and cross-examine her, and that there was no unfair prejudice to defendant.
¶ 120 We agree with the State that the use of the word cards was akin to allowing demonstrative
evidence. Demonstrative evidence has no inherent probative value but rather serves as a visual aid
to the trier of fact in comprehending a witness’s testimony. People v. Middleton, 2018 IL App (1st)
152040, ¶ 32. “The overriding considerations in admitting demonstrative evidence are relevancy
and fairness.” Id. Whether to allow demonstrative evidence is within the trial court’s discretion,
and we review the trial court’s ruling for an abuse of discretion. People v. Holman, 402 Ill. App.
3d 645, 650 (2010).
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2021 IL App (2d) 190473-U¶ 121 The Supreme Court has recognized that the State has a compelling interest in protecting
child victims of sex from additional trauma and embarrassment (Maryland v. Craig, 497 U.S. 836,
852 (1990)), which permits special accommodations for them, such as allowing a child to testify
via closed circuit television (id. at 855-56). In People v. Roman, 260 Ill. App. 3d 436, 445-46
(1992), the appellate court held that it is permissible for child sexual abuse victims to use
anatomically correct dolls as testimonial aids. The use of comfort dogs in the courtroom for child
sexual abuse victims has also been upheld in some jurisdictions. See People v. Tapley, 2020 IL
App (2d) 190137, ¶ 80 (citing People v. Tohom, 109 A.D.3d 253, 268 (N.Y. App. Div. 2013) (a
comfort dog’s accompaniment of the 15-year-old alleged victim “did not adversely affect the
defendant’s due process right to a fair trial or compromise his constitutional right of
confrontation)). In People v. Spencer, 119 Ill. App. 3d 971, 979 (1983), the court stated that “a
witness’s inability to speak does not render her incompetent to testify or violate the defendant’s
right to cross-examine witnesses so long as she is able to communicate the facts by other methods
and otherwise meets the tests of legal competency.” Finally, in Harrison v. Thackaberry, 248 Ill.
512, 517 (1911), our supreme court held that the trial court did not err in allowing the plaintiff’s
attorney to examine him as a witness by writing down questions and handing them to the plaintiff,
who was very hard of hearing. The court stated that the “testimony of such a witness may be given
by whatever means are necessary and best adapted to obtain accurate information,” and that
“[s]uch matter must rest largely in the sound discretion of the trial court.” Id. We recognize that
not all of these cases involve demonstrative evidence, but they illustrate the accommodations a
trial court may make for witnesses, and the special measures that may be employed for child
witnesses who are alleged victims of sexual assault.
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2021 IL App (2d) 190473-U¶ 122 With this backdrop, we conclude that the trial court did not abuse its discretion in allowing
A.P.H. to use the word cards. The assistant state’s attorney stated that during A.P.H.’s 2017 CAC
interview and during interviews with the prosecutor, A.P.H. would not speak the words because
she associated them with terrible things and would instead use hand signals. Accordingly, there
were concrete examples of A.P.H.’s refusal to use the words. The State argued that using the cards
would assist A.P.H. in her testimony and assist in defendant’s cross-examination. At the beginning
of her testimony, the assistant state’s attorney showed A.P.H. drawings of a man and woman with
different parts highlighted, and A.P.H. identified the highlighted parts with the word cards. In this
manner, A.P.H. showed that the cards corresponded to the correct anatomical parts of the body.
Her testimony did not consist of solely using the word cards, but rather she used them only when
her testimony required her to use one of the three words. A.P.H. referred to other parts of the body
out loud during her testimony, such as mouth, hand, pinky finger, face, and side, showing that she
was not limiting her testimony about body parts to just the words on the cards. The trial court
stated that the dangers of confusion or any other effects would be mitigated because it was a bench
trial, and that the trial court would be paying attention to A.P.H.’s demeanor and manner of
testifying. Given these considerations, we conclude that the trial court did not abuse its discretion
in allowing A.P.H. to use the word cards.
¶ 123 3. Recording
¶ 124 Defendant next argues that the trial court failed to properly consider the entire recording.
He maintains that the trial court listened to only the portions of the tape played by the prosecutor
during Ryan’s testimony and during closing argument. Defendant argues that in doing so, the trial
court missed the vast majority of information on the recording that not only helped demonstrate
defendant’s innocence, but unequivocally showed that the trial court was wrong in stating that
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2021 IL App (2d) 190473-Udefendant lied when he testified that he never played the penis game with Ryan. Defendant
maintains that the trial court referred only to hearing “snippets,” and that even if it did listen to the
tape, it ignored the contents or misinterpreted them, as no reasonable finder of fact could listen to
the hours of secret surveillance and infer anything but defendant’s complete innocence.
¶ 125 The State argues that we should reject defendant’s argument because the trial court was
required to consider only properly admitted evidence as marshaled forward by the parties, and
defendant did not play any part of the recording in court. The State maintains that because the tape
contained only hearsay statements, it was the parties’ obligation to establish a relevant hearsay
exception. It points out that it offered the two portions of the recording for their effect on defendant
rather than for the truth of the matter asserted. The State argues that the trial court was not required
to, and was in fact prohibited from, considering portions of the recording not presented by the
parties.
¶ 126 In a bench trial, the trial court is the trier of fact and is required to consider all of the
evidence before arriving at its decision. People v. Joiner, 2018 IL App (1st) 150343, ¶ 69. In
reviewing a conviction after a bench trial, we must presume that the trial court considered only
competent evidence in reaching its verdict unless shown by affirmative evidence in the record.
People v. Moon, 2019 IL App (1st) 161573, ¶ 36. A defendant is deprived of his right to a fair trial
“where there is affirmative evidence in the record that the circuit court failed to correctly recall
and consider evidence critical to fully understand and evaluate a criminal defendant’s defense
strategy at trial.” Joiner, 2018 IL App (1st) 150343, ¶ 69. Whether a defendant’s due process rights
have been violated in this manner is a question of law that we review de novo. Id.¶ 127 As previously mentioned, the State offered the recording into evidence without all of the
limitations it now argues were present, a fact which is clearly shown by the prosecutor’s statements
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2021 IL App (2d) 190473-Uin closing argument. Accordingly, the trial court could consider the recording beyond the short
segments played in court by the State. However, defendant has failed to cite anything in the record
showing that the trial court failed to consider evidence that was critical to defendant’s defense
strategy at trial. See Joiner, 2018 IL App (1st) 150343, ¶ 69. Again, defendant sought to suppress
the recording prior to trial and then did not play or cite any other portions of the recording at trial.
We additionally disagree that the recording leads to the inference that defendant was innocent
because, as discussed, it contains evidence that supports the charges, including defendant not
unequivocally denying pulling his testicle skin over his penis when he was with Ryan, A.P.H.
saying that she played the penis game with defendant, A.P.H. mentioning the marker game, and
A.P.H. saying that defendant said that he could go to jail. We therefore find no error on this issue.
¶ 128 F. Ineffective Assistance of Counsel
¶ 129 Last, defendant argues that he received ineffective assistance of counsel, separate from
counsel’s alleged failure to sufficiently cross-examine A.P.H., in violation of his right to due
process. He argues that defense counsel failed to use numerous portions of the recording that
destroyed the State’s case and demonstrated his innocence. According to defendant, the tape could
also have been used to impeach Ryan and highlight the inconsistencies between A.P.H., Ryan, and
“reality.” Defendant maintains that although counsel elicited that A.P.H. had not accused
defendant of anything at the first trial, counsel breezed over A.P.H.’s prior testimony rather than
emphasizing her complete turnaround for the new judge. Defendant asserts that counsel also failed
to object to a greater extent to the prosecution’s leading questions to A.P.H.
¶ 130 Regarding the recording, defendant argues that since the complete recording was admitted,
defense counsel was free to play any portions that he chose. See also Ill. R. Evid. 106 (eff. Jan. 1,
2011) (“When a writing or recorded statement or part thereof is introduced by a party, an adverse
- 44 -
2021 IL App (2d) 190473-Uparty may require the introduction at that time of any other part or any other writing or recorded
statement which ought in fairness to be considered contemporaneously with it.”). Defendant
maintains that the State emphasized moments of silence on the recording as indicative of his guilt,
but numerous portions of the recording show that he was in complete shock and denied any
wrongdoing, specifically suggesting alternative reasons for why A.P.H. may have said what she
allegedly told Ryan. Defendant asserts that the recording also shows that he did not want to dismiss
the matter but rather wanted to get to the bottom of it. Defendant argues that Ryan made statements
on the tape that defense counsel could have used to cross-examine her but failed to, such as Ryan
saying that A.P.H. did not say anything about anyone touching her; Ryan saying that one of the
games involved the penis being a marker or a pen, whereas Ryan never mentions a pen at trial; and
Ryan saying that she was in the bath with A.P.H., whereas Ryan testified to being outside the
bathtub before testifying that she could not remember if she was in the tub. Defendant argues that
defense counsel could have also rebutted the State’s assertion that Ryan’s and defendant’s
marriage was harmonious.
¶ 131 Defendant argues that perhaps because defense counsel failed to highlight the exculpatory
evidence, the trial court did not consider it but instead concluded that defendant was silent at the
wrong time. Defendant argues that counsel could have played the portion of the recording where
defendant says that he and Ryan had never played the penis game, which would have led the trial
court to realize that the evidence established defendant’s innocence. Defendant further argues that
counsel should have also prepared him for cross-examination by reviewing the recording with him,
as defendant incorrectly admitted to being silent in response to certain statements in the car, which
the State used as evidence of guilt. Defendant argues that the individual errors made by counsel
require reversal, as do the cumulative effect of the errors.
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2021 IL App (2d) 190473-U¶ 132 The State argues that defendant’s argument of ineffective assistance of counsel is without
merit. The State maintains that the counsel confronted A.P.H. with her testimony from the first
trial, and she admitted that she did not accuse defendant of having A.P.H. grab his penis with her
hand or him touching her vagina, nor had she told other people this at that time. Regarding the
recording, the State argues that there was a key difference in the two types of games discussed, as
the second game involved the penis being a present or a piece of candy. The State asserts that the
other parts of the recording that defendant argues trial counsel should have introduced contain
irrelevant or trivial matters. On the subject of leading questions, the State argues that defendant
has forfeited this argument by failing to cite any portion of the recording, authority, or articulating
how this alleged error satisfies the Strickland test. The State argues that as for defendant’s
argument that defense counsel failed to prepare defendant for his testimony, there is nothing in the
record showing that defendant did not get access to the audio recording prior to trial.
¶ 133 We conclude that defendant has failed to show that his trial counsel provided ineffective
assistance. As for impeaching A.P.H. with her testimony from the first trial, defendant has failed
to show deficient performance, as defense counsel elicited testimony from A.P.H. that in the first
trial she did not say that she grabbed defendant’s penis or he touched her vagina, and that she did
not mention such incidents to others. Defendant also cannot show prejudice because the trial court
was well-aware of the reasons for the second trial, and it also explicitly recognized that A.P.H.
made additional allegations five years after the first allegations and three years after the first trial.
¶ 134 We agree with the State that defendant forfeited his argument that his trial counsel was
ineffective for failing to object to leading questions, as defendant does not develop this argument
or cite pertinent authority. See Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020) (argument shall contain
citation to authority); People v. Olsson, 2014 IL App (2d) 131217, ¶ 16 (the failure to clearly define
- 46 -
2021 IL App (2d) 190473-Uissues and support them with authority results in forfeiture of the argument). Further, defendant
cannot show prejudice, as the assistant state’s attorney would have presumably rephrased his
questions and elicited the same testimony had defense counsel objected.
¶ 135 Regarding the portions of the recording when A.P.H. was in the car and defendant now
claims that he was wrongly described as remaining silent, in part because counsel allegedly did
not adequately prepare him for cross-examination, defendant cannot show prejudice, for the trial
court stated that it would not consider such silence as showing consciousness of guilt when A.P.H.
was present. We further agree with the State’s description of the recording on the subject of the
game. As discussed, when Ryan says, “You know what I am talking about, right?”, defendant
responds with a monosyllabic word that sounds like “yeah,” but regardless of the actual word, he
does not go on to dispute what she is saying, thereby appearing to agree with her. It is only later
when Ryan talks about the added element of the penis inside being like a present or a piece of
candy that defendant said that they had not played “that kind of game,” with Ryan agreeing. This
section of the recording therefore does not satisfy either prong of the Strickland test.
¶ 136 That defendant was in shock during portions of the recording and that he was suggesting
reasons for why A.P.H. may have said what she did would also not demonstrate deficient
performance or prejudice because defendant’s reaction could be interpreted as being shocked that
A.P.H. had revealed what had happened, not knowing how to deal with the situation, and trying to
come up with alternative explanations. Defendant did say that the issue was serious and that they
could not just dismiss it, but defendant cannot show ineffective assistance as to these portions of
the recording because if defense counsel emphasized these portions of the recording, the State
would likely have played excerpts where defendant expressed fear that the police would not look
at anyone else and would “crucify” him. The details of whether A.P.H. described the penis as a
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2021 IL App (2d) 190473-Upen or a marker, whether Ryan was inside or outside of the tub when A.P.H. was in the bath, and
whether Ryan and defendant were satisfied with their marriage were minor or tangential issues
that would not have affected the trial’s outcome. Defendant’s claim of ineffective assistance of
counsel therefore fails.
¶ 137 III. CONCLUSION
¶ 138 For the reasons stated, we affirm the judgment of the Kendall County circuit court.
¶ 139 Affirmed.
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