The opinion
2026 IL App (4th) 250717
FILED
August 4, 2026
NO. 4-25-0717 Carla Bender
4th District Appellate
IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Adams County
DEVIAK ROBERT DAILING, ) No. 24CF771
Defendant-Appellant. )
) Honorable
) Charles H.W. Burch,
) Judge Presiding.
JUSTICE DeARMOND delivered the judgment of the court, with opinion.
Presiding Justice Steigmann and Justice Zenoff concurred in the judgment and
opinion.
OPINION
¶1 In a May 2025 trial, a jury found defendant, Deviak Robert Dailing, guilty of
criminal sexual assault (720 ILCS 5/11-1.20(a)(1) (West 2024)), a Class 1 felony. Defendant
afterwards moved for either judgment notwithstanding the verdict or a new trial, arguing the
guilty verdict stood against the manifest weight of the evidence because the State did not
establish his guilt beyond a reasonable doubt and the trial court erred in admitting improper
opinion testimony from a police detective. The court denied the motion and sentenced defendant
to 15 years’ incarceration in the Illinois Department of Correction (DOC), followed by 3 years to
natural life of mandatory supervised release (MSR).
¶2 On appeal, defendant challenges his conviction and sentence on three grounds:
(1) the State failed to prove him guilty beyond a reasonable doubt, (2) the trial court erred when
it allowed the State to elicit “expert-style” testimony from Detective Erik Cowick when he was
not and could not have been qualified as an expert, and (3) the maximum sentence imposed by
the court proved excessive. We disagree and affirm the conviction and sentence.
¶3 I. BACKGROUND
¶4 In November 2024, the State charged defendant by indictment with two counts of
criminal sexual assault, Class 1 felonies (720 ILCS 5/11-1.20(a)(1), (b)(1) (West 2024)),
alleging, on June 6, 2024, “he knowingly committed an act of sexual penetration with B.L.B., in
that by the threat of or use of force [he] made contact with the sex organ of B.L.B with his penis”
(count I), and he “made contact with the mouth of B.L.B. with his penis” (count II). The matter
proceeded to a jury trial in May 2025.
¶5 A. B.L.B.’s Account
¶6 The State first called B.L.B., who testified she met defendant for the first time late
in the evening on June 5, 2024, when he and two friends picked her up at her grandparents’
house in Payson, Illinois. She left the house with several bags of food and clothes because she
planned to stay with her friend, Shelby, for a few days. They drove to defendant’s apartment in
Quincy, Illinois. When they arrived, B.L.B., and the other passengers, Jaclyn Hardy and Carter
Kramer, entered the apartment but defendant left to retrieve his bike. During the 20-to-30
minutes defendant was away, the three sat in the living room. When defendant returned, he
grabbed a beer and sat by B.L.B. on the couch. She testified that all four sat there talking until
she and defendant began kissing. At some point, defendant asked Carter and Jaclyn to leave the
room, and they did. B.L.B. testified defendant then “pulled [her] over towards him and tried to
put his dick in [her] mouth multiple times.” She demonstrated how defendant used one hand to
grab her neck and pull her to his side of the couch. His thumb was on one side of her neck, his
-2-
fingers on the other side, and his palm on her throat. B.L.B. testified she “tried to push him away
and then he wouldn’t stop, so [she] just let it happen.” She explained, and demonstrated with
gestures, how she tried to push him away by holding her hands up and pushing out. B.L.B.
reiterated that she told defendant to stop, but he would not listen. She testified, “He kept putting
[his penis] like up against my lips three times and I told him to stop and the fourth time I finally
let it happen because he wouldn’t stop.” B.L.B. estimated defendant’s penis was in her mouth for
“[l]ess than two seconds.”
¶7 B.L.B. testified defendant next “tried to stick his dick in [her] vagina.” He took
off her shorts and underwear and “pulled [her] on top of him” and put his penis inside her vagina
for “[o]ne or two minutes.” She recalled feeling uncomfortable and scared during the act. B.L.B.
testified the assault ended when “he pulled out and went off,” after which he left. B.L.B.
subsequently “packed [her] stuff up and left.”
¶8 She walked to a nearby gas station and called her grandmother to tell her what
happened and ask for a ride. She then walked to Blessing Hospital. She arrived carrying her bags
and wearing one shoe. She explained she did not go back to defendant’s apartment to retrieve her
shoe because she “didn’t feel comfortable.”
¶9 At the hospital, B.L.B. talked with a police officer and eventually agreed to
undergo a sexual assault examination. At trial, B.L.B. identified defendant as the man who
pushed his penis in her mouth and vagina.
¶ 10 During cross-examination, defense counsel highlighted inconsistencies between
B.L.B.’s prior statements and her trial testimony by playing video clips from her police
interviews. Some of those inconsistencies pertained to how long she kissed defendant, whether
B.L.B. told anyone else she planned to stay at Shelby’s house, whether she spoke with Jaclyn
-3-
after defendant put his penis her mouth but before the vaginal penetration, and whether
defendant left the room between the oral and vaginal sex. Defense counsel also elicited
testimony from B.L.B. that during the assault, she did not scream, kick, bite, fight, or call the
police.
¶ 11 On redirect examination, B.L.B. affirmed, “I kept telling [defendant] to stop and I
put my hands up to try to stop him.” She also confirmed defendant put his penis in her mouth and
vagina after he put his hands on her neck.
¶ 12 B. The Friends and Grandmother
¶ 13 As part of its case-in-chief, the State called Jaclyn and Carter. Their testimony
shared many similarities. Both testified that they, along with defendant, picked up B.L.B. in
Payson, and all four went to defendant’s apartment in Quincy late in the evening of June 5, 2024.
Both testified that all four sat in the living room for a while, with Jaclyn and Carter sharing a
recliner and defendant and B.L.B. sitting on the couch. Both testified they eventually left the
living room, going first to the kitchen to cook hamburgers and then outside. Both testified that
after they left defendant’s living room, they did not see B.L.B. again that night. Both testified
that, 10 or 15 minutes after they left the living room, defendant came outside and told them he
was leaving. Finally, both testified they did not witness any sexual activity or choking between
defendant and B.L.B.
¶ 14 Their testimony differed slightly on few points. Jaclyn did not recall seeing
defendant and B.L.B. kissing on the couch, whereas Carter remembered seeing them kissing.
Carter also recalled all four playing a game in the living room before he and Jaclyn left. Carter’s
testimony also addressed his interactions with defendant months later. He testified that on
October 31, 2024, “[defendant] told [him] to tell the truth.” Specifically, defendant told Carter to
-4-
testify to being with him “the whole time” and that he saw what happened. Carter confirmed that
was not the truth. Carter testified defendant described what happened between him and B.L.B.
and, when asked if it sounded consensual, Carter answered, “Not really.”
¶ 15 The State also called Martha B., B.L.B.’s grandmother. She testified B.L.B. left
her house on June 5, 2024, at approximately 11:45 p.m. Martha recognized Jaclyn in the car but
did not know the two men with her. She testified that at approximately 2:15 a.m. on June 6,
2024, she received a phone call from B.L.B., who “sounded upset” because of her “kind of
quivery, kind of whimpery” voice. Martha testified B.L.B. told her what happened at defendant’s
apartment and asked her to come get her. She agreed to meet B.L.B. at Blessing Hospital.
¶ 16 C. The Medical and DNA Evidence
¶ 17 While at the hospital, B.L.B. agreed to be examined. The State called the doctor
and nurse who treated her. Dr. David Eckersley testified he worked as an emergency room
physician at Blessing Hospital and affirmed he was on duty in the early morning hours of June 6,
2024. He examined B.L.B., who “reported that she had been assaulted by a male who had forced
her to perform oral sex and vaginal sex and that she had been choked during the incident.”
B.L.B. denied having any neck pain. Dr. Eckersley testified he saw no evidence of physical
injuries to B.L.B.’s neck. He confirmed that, based on his experience as an emergency room
physician, injuries may not appear within one to two hours of a sexual assault. He testified,
“Evidence of the injuries may occur later.”
¶ 18 Amber Hoener testified she was employed as a registered nurse at Blessing
Hospital and had completed specialized training as a sexual assault nurse. Hoener testified
B.L.B. told her she had been raped by a man she did not know. She said the man repeatedly
asked her for sex, and she said no. Hoener’s report noted B.L.B. said, “He forced me to anyway
-5-
and he tried to get me to suck his dick and then he fucked me.” B.L.B. also said, “He choked me,
but I didn’t pass out.” Hoener testified she conducted a sexual assault examination on B.L.B. and
observed no visible injuries. She opined, however, that injures could appear later, noting, “The
human body is completely different for everybody, so there can be bruising that comes hours
later, days later. It just varies for every single person.” Hoener confirmed that, as part of the
examination, she collected swabs from B.L.B.’s genitalia and body for testing. Hoener testified
she completed the examination and sexual assault kit and provided the latter to law enforcement.
¶ 19 The State then called the two forensic scientists from the Illinois State Police who
tested the swabs from the sexual assault kit. They testified the swabs from B.L.B.’s external
genitalia contained male DNA, and testing revealed the “profile is approximately 19 septillion
times more likely if it originated from [defendant] than if it originated from an unknown,
unrelated individual.” In simpler, nonstatistical terms, the DNA evidence provided “very strong
support” for the conclusion the male DNA came from defendant. On cross-examination,
defendant’s counsel confirmed this.
¶ 20 D. Law Enforcement Evidence
¶ 21 B.L.B. talked with two law enforcement officers on June 6 and 7, 2024. The State
called both as witnesses. Katie Hatch, a 10-year veteran police officer with the City of Quincy
testified she responded to a call and encountered B.L.B. in Blessing Hospital’s parking lot at
approximately 2:30 a.m. on June 6. Hatch observed B.L.B. holding a few bags and wearing one
shoe. Hatch testified she interviewed B.L.B. and, based on their conversation, she went to
defendant’s apartment to investigate.
¶ 22 The State’s final witness was Cowick, who testified he was employed by the City
of Quincy and the United States Army. He stated he had been a Quincy police officer for 10
-6-
years, serving as a patrol officer, a juvenile detective, and then a criminal detective. Cowick
confirmed he was assigned B.L.B.’s case when he went on duty at 7:30 a.m. on June 6, 2024. He
stated he interviewed B.L.B. at 1 p.m. and, based on her account, he looked at her neck. Cowick
testified he took pictures of B.L.B.’s neck at 2 p.m. on June 6, and he identified those pictures as
exhibit No. 8. He explained that he took the pictures because B.L.B. told him defendant choked
her, and he observed injuries to her neck. This colloquy followed:
“Q. Detective Cowick, as part of your training, are you—both at the
military and with the Quincy Police Department, do you receive training about
injuries on victims.
A. Yes, ma’am.
Q. Tell us about that training.
A. Throughout my years of investigation as well as, you know, the
medical training I’ve had here as well as being a combat lifesaver on the military
side of things, I know that injuries such as bruising doesn’t [sic] always appear
right away. Sometimes it takes some time for it to show itself.
Q. And have you personally experienced that on cases that you’ve
worked?
A. Yes, ma’am.
Q. In fact, as part of your training as a—I know more about the Quincy
Police than the military, but with the Quincy Police Department, do you take
follow-ups of injuries over multiple days of victims?
A. Yes.
Q. And is that because the injuries may not show up until later and may
-7-
become more pronounced as time goes on?
A. Exactly.
Q. Tell us what injuries you observed on [B.L.B.]”
At this point, defense counsel objected on foundation grounds.
¶ 23 During a sidebar in chambers, defense counsel argued, “[T]he foundation that was
just laid does not show that [Cowick] has any experience with strangulation.” Counsel further
argued:
“[Cowick] just says I’m a cop for ten years and I have experience and that there’s
a theory. That doesn’t live up to the Frye test that somehow injuries appear later.
He said based on his experience injuries appear later, but there’s no medical
foundation for that that there’s no experience. He didn’t give any examples. He
didn’t say a lot of times I see people beforehand and then two days later they have
marks on their neck. Foundation is just not there. There’s really no basis.”
The State countered that it laid a “more than adequate foundation” because Cowick’s training
and experience led him to take multiple photographs of injuries on multiple days. The trial court
overruled the defense’s objection, finding, based on the questions and responses regarding
Cowick’s training and experience as a police officer, there was an “adequate foundation to have
the testimony and questions asked of him based on his observations or if this was consistent with
either strangulation or finger marks, he can testify to that.”
¶ 24 Back in open court, the State again asked Cowick what injuries he observed on
B.L.B. He testified, “I noticed that on the left side of her neck there appeared to be some
bruising.” Cowick confirmed the bruising was consistent with how and where B.L.B. said she
had been choked. The State next showed Cowick exhibit No. 9, which he identified as the photos
-8-
he took of B.L.B.’s neck at 2 p.m. on June 7, 2024. He testified that on June 7, he observed “the
same marks that [he] had seen the day prior, but they were a little bit more defined and the
bruising was a little bit more darker than they were the day before.” He explained “more
defined” meant “on her left side of her neck, there were three indications that [he] could see on
the left side and they were consistent with what *** appeared to be what [he] believed to be
fingerprints or fingers, the tips of fingers.” He again confirmed those marks were consistent with
where B.L.B. said defendant put his fingers on her neck. Cowick testified it was “fair to say” the
pictures in exhibit Nos. 8 and 9 did not “completely depict[ ]” B.L.B.’s injuries because the
bruises were harder to see in the pictures. He affirmed the bruising “was actually more
pronounced” when he saw it in person, as compared to seeing it in pictures.
¶ 25 Cowick also testified he interviewed defendant on June 6, 2024, while wearing a
body camera. With Cowick on the witness stand, the State introduced the video of that interview
as exhibit No. 10 and played it for the jury. Defendant told Cowick he had never met B.L.B.
before that night and he still did not know her name. He admitted to having oral sex with B.L.B.
but denied having vaginal sex, saying, “She gave me some head and I told her to leave. I was
shitfaced fucking drunk. That’s not rape. I didn’t rape nobody.” He denied arguing or fighting
with B.L.B. He repeated, “She gave me some head and I kicked her out.”
¶ 26 On cross-examination, Cowick testified he observed bug bites on B.L.B.’s legs,
neck, and face during their interview. He confirmed that when he and B.L.B. discussed the
injuries to her neck, she referenced the bug bites. Cowick testified he went back to see B.L.B. on
June 7 to see if her injuries “were more prominent the next day.” He said, in his opinion, the
injuries appeared worse on June 7. As for the pictures, Cowick opined, “I just think that you are
able to see the bruising better in person. The pictures still showed the injuries of what I was
-9-
seeing. In person, I just could see them better.” He testified he believed the pictures showed
bruising consistent with fingerprints. He could not determine if the bruising proved B.L.B. had
been choked and for how long. On redirect examination, Cowick pointed out for the jury the
bruising he observed in the pictures from exhibit Nos. 8 and 9. With that, the State rested its
case. The defense presented no evidence.
¶ 27 The jury returned a split verdict. It found defendant not guilty of count I (vaginal
penetration by force) and guilty on count II (oral penetration by force). The trial court ordered a
presentence investigation report and set the matter for sentencing.
¶ 28 Defendant filed a posttrial motion for either judgment notwithstanding the verdict
or a new trial, arguing the State did not prove him guilty beyond a reasonable doubt because
B.L.B. consented to oral sex, noting B.L.B. testified she “ ‘finally let it happen because he
wouldn’t stop.’ ” Defendant also argued Cowick’s testimony about the bruising on B.L.B.’s neck
was inadmissible. The trial court heard arguments on June 26, 2025, and denied the motion.
¶ 29 At the sentencing hearing on July 10, 2025, the parties confirmed they received
the presentence reports and supplements. Neither party presented evidence in aggravation or
mitigation. The State argued for the maximum 15-year sentence, followed by a term of MSR
spanning 3 years to natural life. The defense argued for the minimum four-year sentence, noting
defendant’s history of mental illness, his and his family’s history of substance abuse, his troubled
and violent childhood, and the cost of incarcerating him.
¶ 30 Before pronouncing the sentence, the trial court asserted it considered the
presentence investigation report, the addendum and attachments, counsels’ arguments,
defendant’s statement, the relevant factors in aggravation and mitigation, and the trial evidence.
Specifically, the court considered defendant’s age, mental and physical health, “fairly significant
- 10 -
history of drug and substance abuse,” and background and “fairly difficult upbringing.” The
court identified the “most significant aggravating factor” as “the significant criminal history on
the part of the defendant.” The court opined, “[T]he more criminal history you’ve accumulated in
your life *** should lead to a result where there should be more severe consequences.” It then
listed defendant’s prior convictions, recognizing that “most of the defendant’s criminal history
is—would best be characterized as violent crime.” The court opined defendant’s various crimes
led him “to be merely doing a life sentence on an installment plan, and that is regrettable.” It
finally considered the nature and circumstances of this crime, deeming it a serious offense. The
court explained it found a significant prison sentence was necessary to deter others and redress
the serious offense. It sentenced defendant to 15 years in DOC, followed by 3 years to natural
life of MSR.
¶ 31 Defendant opted against filing a motion to reconsider the sentence, and this
appeal followed.
¶ 32 II. ANALYSIS
¶ 33 Defendant raises three arguments on appeal: (1) the State failed to prove him
guilty beyond a reasonable doubt because it did not prove force or lack of consent, (2) the trial
court erroneously admitted “expert-style” testimony from Cowick, and (3) the 15-year sentence
is excessive and does not account for mitigating factors. We address each argument in turn.
¶ 34 A. Sufficiency of the Evidence
¶ 35 “The due process clause of the fourteenth amendment to the United States
Constitution [(U.S. Const., amend. XIV)] requires that a person may not be convicted in state
court ‘except upon proof beyond a reasonable doubt of every fact necessary to constitute the
crime with which he is charged.’ ” People v. Cunningham, 212 Ill. 2d 274, 278 (2004) (quoting
- 11 -
In re Winship, 397 U.S. 358, 364 (1970)). When a defendant appeals his conviction by arguing
the State produced insufficient evidence to satisfy this burden of proof, we do not retry the
defendant. Rather, viewing the evidence in the light most favorable to the State, we consider
whether any rational fact finder could have found the essential elements of the crime proved
beyond a reasonable doubt. People v. Dye, 2026 IL App (4th) 241001, ¶ 53. “All reasonable
inferences from the evidence must be drawn in favor of the State.” People v. Jones, 2023 IL
127810, ¶ 28.
¶ 36 We likewise defer to the fact finder on “questions involving the weight of the
evidence or the credibility of witnesses.” Jones, 2023 IL 127810, ¶ 28. It is well-established law
“that the testimony of a single witness, if positive and credible, is sufficient to convict, even
though it is contradicted by the defendant.” People v. Siguenza-Brito, 235 Ill. 2d 213, 228
(2009). And so, we “will not reverse a conviction simply because the evidence is contradictory
[citation] or because the defendant claims that a witness was not credible.” Siguenza-Brito, 235
Ill. 2d at 228. We will reverse a conviction “only where the evidence is so unsatisfactory,
unreasonable, or improbable that it raises a reasonable doubt as to the defendant’s guilt.” Dye,
2026 IL App (4th) 241001, ¶ 53.
¶ 37 To prove a defendant guilty beyond a reasonable doubt of criminal sexual assault,
the State must establish two elements: (1) the defendant committed an act of sexual penetration
(2) by force or threat of force. 720 ILCS 5/11-1.20(a)(1) (West 2024). If a defendant claims the
victim consented to sexual penetration, then the State must also prove nonconsent beyond a
reasonable doubt. People v. Denbo, 372 Ill. App. 3d 994, 1005 (2007). Here, considering the
charges and defendant’s affirmative defense, the State had to prove defendant penetrated
B.L.B.’s mouth with his penis by use of force or threat of force, and B.L.B. did not consent to
- 12 -
oral sex. Defendant does not dispute the sexual penetration element, but he contests the force and
consent elements.
¶ 38 1. Force and Consent
¶ 39 “Force is the essence of the crime of rape.” People v. Mpulamasaka, 2016 IL App
(2d) 130703, ¶ 74. Section 11-0.1 of the Criminal Code of 2012 (720 ILCS 5/11-0.1 (West
2024)) defines it accordingly:
“ ‘Force or threat of force’ means the use of force or violence or the threat
of force or violence, including, but not limited to, the following situations:
(1) when the accused threatens to use force or violence on the
victim or on any other person, and the victim under the circumstances
reasonably believes that the accused has the ability to execute that threat;
or
(2) when the accused overcomes the victim by use of superior
strength or size, physical restraint, or physical confinement.”
Here, the State alleged defendant used actual force, not the threat of force, to assault B.L.B. The
force element “refers to actions of the defendant that physically compel the victim to submit to
the act of sexual penetration.” Mpulamasaka, 2016 IL App (2d) 130703, ¶ 74. It requires
something more than the force inherent in the physical penetration of the sex act. People v.
Lamonica, 2021 IL App (2d) 200136, ¶ 42. Instead, force involves “some kind of physical
compulsion *** that causes the victim to submit to the penetration against their will.” Lamonica,
2021 IL App (2d) 200136, ¶ 42. Force, therefore, “precede[s] the act of sexual penetration by at
least some amount of time—seconds, minutes, whatever amount of time it takes to ‘overcome’
the victim.” (Emphasis omitted.) People v. Smith, 2019 IL App (1st) 161246, ¶ 30. “There is no
- 13 -
definite standard setting forth the amount of force necessary to establish criminal sexual assault
by the ‘use of force,’ and each case must be considered on its own facts.” Mpulamasaka, 2016 IL
App (2d) 130703, ¶ 74.
¶ 40 Consent from the victim acts as an affirmative defense to criminal sexual assault
because it effectively rebuts the State’s evidence of force. Denbo, 372 Ill. App. 3d at 1005. The
Criminal Code of 2012 defines “consent” as “a freely given agreement to the act of sexual
penetration or sexual conduct in question. Lack of verbal or physical resistance or submission by
the victim resulting from the use of force or threat of force by the accused shall not constitute
consent.” 720 ILCS 5/11-0.1 (West 2024). Therefore, if one freely agrees and allows oneself to
be sexually penetrated, one has not been forced. Denbo, 372 Ill. App. 3d at 1005.
¶ 41 Consent and force are two sides of the same coin. Proving one disproves the
other. Nevertheless, to secure a conviction of criminal sexual assault when the defendant raises
consent as an affirmative defense, the State must prove beyond a reasonable doubt both force and
nonconsent.
¶ 42 2. This Case
¶ 43 Defendant contends “the State sought to establish force through the testimony of
[B.L.B.] but [her] testimony was not enough to prove that [defendant] penetrated [B.L.B.’s]
mouth by force.” He also argues “the State presented insufficient evidence to disprove beyond a
reasonable doubt that [B.L.B.] consented to have sex with [defendant].” Defendant concludes
“there [was] no physical evidence or testimony indicating that [defendant] used force to compel
[B.L.B.] to engage in oral sex, [so] his conviction should be reversed for lack of force.” We
disagree on all points, and we hold the State sufficiently proved with both testimony and physical
evidence that defendant used force to sexually penetrate B.L.B.’s mouth without her consent.
- 14 -
¶ 44 The State presented evidence defendant grabbed B.L.B.’s neck before he inserted
his penis in her mouth. Force naturally precedes sexual penetration. Smith, 2019 IL App (1st)
161246, ¶ 30. B.L.B. testified defendant pulled her towards him by grabbing her neck with one
hand, and he “tried to put his dick in [her] mouth multiple times.” She told him to stop, refused
oral sex, and tried to push him away by putting her hands up and pushing out. She testified she
eventually “just let it happen” because defendant would not stop. B.L.B. said defendant’s penis
was in her mouth for one or two seconds.
¶ 45 B.L.B. gave similar accounts to the medical professionals who treated her at
Blessing Hospital. She told Dr. Eckersley and Hoener that defendant choked her before raping
her. She gave similar statements to Hatch and Cowick.
¶ 46 At trial and on appeal, defendant has sought to undermine B.L.B.’s testimony and
credibility. The defense impeached B.L.B. with her prior inconsistent statements, particularly her
interview with Detective Cowick on June 7, 2024. In that recorded statement, B.L.B. said
defendant grabbed her neck, then she talked with Jaclyn, and after that defendant asked her for
oral sex, which she refused. But on cross-examination, B.L.B. did not recall Jaclyn being in the
room when defendant grabbed her neck, and she did not recall talking to Jaclyn. Jaclyn’s trial
testimony aligned with B.L.B.’s testimony and not the June 7 statement. Jaclyn testified she did
not see defendant touch B.L.B., nor did she testify that she talked with B.L.B. after she left the
room. In urging the jury to believe B.L.B.’s June 7 statement, defendant argues the break in time
negated the force defendant used by grabbing her neck. The jury saw and heard B.L.B.’s June 7
interview. It heard B.L.B.’s and Jaclyn’s respective testimony. The guilty verdict indicated the
jury believed the trial testimony over the June 7 statement. It was the jury’s province to judge
witness credibility and weigh evidence. See Dye, 2026 IL App (4th) 241001, ¶ 53. A guilty
- 15 -
verdict will not be reversed simply because the defense contradicted some of the State’s evidence
or undermined a witness’s credibility. See Siguenza-Brito, 235 Ill. 2d at 228.
¶ 47 As for physical evidence, the photographs the State presented through exhibit
Nos. 8 and 9 showed marks on B.L.B.’s neck. Cowick testified he took the photographs because
he saw marks on her neck that appeared to be consistent with fingermarks from grabbing the
neck. The defense cross-examined B.L.B. and Cowick about the pictures. It elicited testimony
from Cowick that B.L.B. also had bug bites on her neck and body. Dr. Eckersley and Hoener
testified they did not see marks on B.L.B.’s neck, but both acknowledged marks or bruising
could appear later. On redirect examination, Detective Cowick pointed out to the jury what he
believed were bruises from defendant’s fingers on B.L.B.’s neck.
¶ 48 This evidence—despite the defense’s attempts to refute or discredit it—allowed
the jury to reasonably conclude defendant overcame B.L.B.’s will and resistance by grabbing her
by the neck, pulling her to him, and repeatedly trying to put his penis in her mouth. The evidence
further allowed the jury to find B.L.B. said no and tried to push him away, but she eventually
surrendered to defendant’s force. The jury, therefore, could find the State proved the force
element beyond a reasonable doubt as it is defined by statute and case law. By his superior
strength, defendant overcame B.L.B. See 720 ILCS 5/11-0.1 (West 2024) (defining “force” as
overcoming the victim by using superior strength, size, physical restraint, or physical
confinement). Put differently, by grabbing B.L.B.’s neck and pulling her to him, defendant used
physical compulsion that caused B.L.B. to submit to sexual penetration. Cf. Lamonica, 2021 IL
App (2d) 200136, ¶ 42. These actions amounted to more than the force inherent in penetrating
B.L.B.’s mouth with his penis.
¶ 49 This same evidence also proved beyond a reasonable doubt that B.L.B. did not
- 16 -
consent to oral sex with defendant. The defense has emphasized the fact that B.L.B. did not fight
back when defendant grabbed her and pulled her to him, and she did not scream for help from
Jaclyn and Carter, who were nearby. She was not obligated to do so. “Lack of verbal or physical
resistance or submission by the victim resulting from the use of force or threat of force by the
accused shall not constitute consent.” 720 ILCS 5/11-0.1 (West 2024). B.L.B. verbally rejected
defendant’s demands for oral sex, and she tried to push him away. This is not consent.
¶ 50 The defense argues B.L.B. was not credible and so her testimony was insufficient
to satisfy the State’s burden of proof for either force or consent. However, other witnesses
corroborated B.L.B.’s testimony. Jaclyn and Carter confirmed much of what B.L.B. said
occurred between the four of them that evening. Carter testified that, based on defendant’s
version of events and his request for Carter to lie for him, he did not think what happened
between defendant and B.L.B. was consensual. B.L.B.’s grandmother confirmed some of
B.L.B.’s testimony and described B.L.B. as upset during their phone call. Ultimately, credibility
determinations are not our purview. “It is the province of the jury as the finder of fact to
determine the witnesses’ credibility, and its finding is entitled to great weight.” Dye, 2026 IL
App (4th) 241001, ¶ 53. The jury obviously found B.L.B. and the other witnesses credible. “It is
well settled that a criminal sexual assault conviction may be sustained on the victim’s testimony
alone.” People v. Carlson, 278 Ill. App. 3d 515, 521 (1996). We will not disturb the jury’s
credibility determination.
¶ 51 Viewing the evidence in the light most favorable to the State, we cannot conclude
the State’s evidence was “so unsatisfactory, unreasonable, or improbable that it raises a
reasonable doubt as to the defendant’s guilt.” Dye, 2026 IL App (4th) 241001, ¶ 53. Based on the
State’s evidence, a rational jury could find the State proved beyond a reasonable doubt all the
- 17 -
elements of criminal sexual assault and disproved beyond a reasonable doubt defendant’s
affirmative defense of consent.
¶ 52 B. Opinion Testimony
¶ 53 Defendant next argues the trial court erred by allowing Cowick to give “expert-
style” opinion testimony about the bruising on B.L.B.’s neck. Defendant maintains “the State
presented Cowick to the jury as an expert when he was not and allowed him to give medical-
style explanations without foundation.” We disagree.
¶ 54 Illinois laws permits opinion testimony from lay or expert witnesses. Ill. Rs. Evid.
701, 702 (eff. Jan. 1, 2011). “Rule 701 of the Illinois Rules of Evidence sets forth the
foundational requirements for an ‘opinion’ or ‘inference’ offered by a witness who is not
testifying as an expert.” People v. Loggins, 2019 IL App (1st) 160482, ¶ 79. Lay witness opinion
testimony “must be confined to statements of fact of which the witness has personal knowledge.”
(Internal quotation marks omitted.) People v. Risper, 2020 IL App (1st) 160707, ¶ 35. The lay
witness’s “opinion must be based on his or her personal observations and recollections of
concrete facts, not on specialized knowledge.” Risper, 2020 IL App (1st) 160707, ¶ 35. Expert
opinion testimony, by contrast, must be based on “scientific, technical, or other specialized
knowledge [that] will assist the trier of fact,” and it must come from a qualified witness. Ill. R.
Evid. 702 (eff. Jan. 1, 2011).
¶ 55 The trial court enjoys broad discretion in admitting or excluding evidence,
including opinion testimony, and its decision will not be disturbed unless it abuses that
discretion. People v. Walker, 2021 IL App (4th) 190073, ¶ 19. A trial court abuses its discretion
when its decision “is arbitrary, fanciful, or unreasonable to the degree that no reasonable person
would agree with it.” People v. McDonald, 2016 IL 118882, ¶ 32.
- 18 -
¶ 56 1. The Motion in Limine and Trial Objection
¶ 57 Defense counsel sought to exclude or limit Cowick’s testimony through a motion
in limine filed on the third day of trial. Counsel also objected during trial. However, a careful
review of the motion and trial objection reveal neither addressed the testimony about which
defendant now complains. The motion in limine referenced “a false accusation of strangulation”
by the victim, and “[b]ased on prior experience with Officer Cowick,” it sought to prohibit
Cowick from giving “improper expert medical testimony.” Such testimony included, but was not
limited to, “the timing, causes, or interpretation of bruising.” The motion hearing focused on
Cowick’s anticipated “strangulation testimony.” The trial court limited Cowick’s testimony to
the photographs he took and his observations of “what he believed to be bruising and that based
on his training and experience appeared to be evidence of strangulation *** that it is and may be
consistent with choking.” Cowick was neither questioned about nor testified to any of the above.
On appeal, defendant raises no claim of error regarding the court’s decision on the motion
in limine. Instead, defendant confines his argument to the court’s decision to overrule counsel’s
objection. We find the timing and substance of the defense’s objection curious, to say the least.
¶ 58 At trial, Cowick had already testified to his training and experience. During direct
examination, Cowick testified without objection that B.L.B. “indicated during that morning
incident that she had been choked by defendant,” and he observed injuries on her neck. He
testified he took pictures of B.L.B.’s neck based on what she said and what he observed. He had
already testified to his practice of taking follow-up pictures because injuries can worsen over
time and bruising may not appear until later. Defense counsel did not object to any of these
questions. Counsel did not object until the State asked, “Tell us what injuries you observed on
[B.L.B.]” When counsel finally did object, he merely challenged the anticipated testimony’s
- 19 -
foundation. During the in-chambers sidebar, counsel argued the State had laid an inadequate
foundation to establish Cowick had experience with strangulation or injuries appearing in a
delayed manner. As to the former, no questions had been asked of Cowick about strangulation,
and the question to which the objection was made would not have elicited a response relevant to
the objection. To the latter, Cowick had already testified, without objection, that in his
experience, “injuries such as bruising doesn’t always appear right away. Sometimes it takes
some time for it to show itself.” The jury had already heard the same thing from Dr. Eckersley
and Hoener. The trial court overruled the objection, finding there was “adequate foundation to
have the testimony and questions asked of him based on his observations or if this was consistent
with either strangulation or finger marks, he can testify to that.” With no other objection, Cowick
testified he observed what appeared to be bruising on B.L.B.’s neck, consistent with where she
said she was choked, and the bruises “appeared to be what [he] believed to be fingerprints or
fingers, the tips of fingers.” Cowick testified the location of the marks was consistent with where
B.L.B. indicated defendant “had put his fingers on her neck,” again without objection.
¶ 59 At oral argument, appellate counsel was questioned regarding whether the prior
objection preserved the issue defendant now raises on appeal, specifically, that Cowick bolstered
his testimony by referring to his military experience or opining that it provided him expertise
regarding bruising. Defense counsel filed and argued defendant’s motion in limine on the same
day Cowick testified, so defendant cannot claim he was surprised by Cowick’s testimony and
failed to object quickly enough. In the motion and during the sidebar, counsel objected to any
reference to strangulation, but Cowick made none. Counsel objected to Cowick relying on his
training or experience to render or bolster an opinion as to how bruises were caused, but Cowick
did not. Counsel objected to testimony from Cowick that bruising might change over time—
- 20 -
besides being an untimely objection, we will explain below that the testimony in question did not
require expertise and was cumulative of medical testimony already before the jury. Counsel
objected to any testimony from Cowick that the bruising on B.B.’s neck was caused by being
choked, but he gave no such testimony. Cowick’s testimony was limited to describing what he
observed on B.L.B.’s neck.
¶ 60 Defendant’s lone, broad foundational objection to an expansive question
obfuscates what issue was actually preserved for appellate review. However, we need not
determine whether defendant forfeited the precise argument he raises on appeal. Forfeiture binds
the parties, not the courts. See People v. Melvin, 2023 IL App (4th) 220405, ¶ 11. This is an
important issue, and we elect to address it. However, we take this opportunity to repeat the old
maxim, “We will not reverse the trial court’s decision based on an argument the trial court never
heard.” (Internal quotation marks omitted.) People v. Kuehner, 2022 IL App (4th) 200325, ¶ 132.
We now turn to defendant’s argument.
¶ 61 2. Cowick’s Testimony
¶ 62 Defendant, relying on a concept unknown to Illinois jurisprudence, insists Cowick
provided “expert-style” and “medical-like” testimony. We disagree. Cowick testified regarding
his observations of B.L.B.’s neck and his interpretation of those observations based on his past
experience. Cowick testified he observed “injuries on [B.L.B.’s] neck” while interviewing her on
June 6 and June 7. Based on B.L.B.’s allegations that defendant choked her, Cowick looked at
her neck and saw marks he believed looked like bruises. He took pictures of B.L.B.’s neck at
approximately 2 p.m. on June 6. The State admitted those pictures as exhibit No. 8. Cowick then
testified he interviewed B.L.B. again on June 7 at approximately 2 p.m., and he observed “the
same marks that [he] had seen the day prior but they were a little bit more defined and the
- 21 -
bruising was a little bit more darker than they were the day before.” He thought the marks
“appeared to be what [he] believed to be fingerprints or fingers, the tips of fingers.” He followed
up by acknowledging the marks he observed “were consistent with where she told [him] the
person who had sexually assaulted her had put his fingers on her neck.” He identified those
follow-up pictures as exhibit No. 9.
¶ 63 Notably, Cowick did not testify the marks he observed were consistent with
choking or strangulation, and he did not speculate how much pressure for how much time would
produce such marks. He simply testified to what he saw and the context in which he saw it,
coupled with what B.L.B. told him had happened. Cowick’s testimony fits squarely within Rule
701’s parameters. He testified to his opinion or inference based upon his rational perception or
personal observation of B.L.B.’s neck. See Ill. R. Evid. 701 (eff. Jan. 1, 2011); Risper, 2020 IL
App (1st) 160707, ¶ 35. He did not base his testimony on specialized, technical, or scientific
knowledge. See Ill. R. Evid. 702 (eff. Jan. 1, 2011).
¶ 64 Defendant highlights Cowick’s testimony that he knew “that injuries such as
bruising doesn’t always appear right away,” and “[s]ometimes it takes some time for it to show
itself,” based on his “years of investigation as well as *** the medical training [he] had here as
well as being a combat lifesaver on the military side of things.” He argues this statement laid an
inadequate foundation for expert testimony and qualified Cowick’s opinions as “expert-style”
testimony. Defendant’s brief isolates the term “combat lifesaver” five times to insinuate Cowick
and the State repeatedly reminded the jury of his past training and experience to mislead them
about his expertise. At oral argument, counsel went further, arguing Cowick told the jury they
should rely on his prior experience. However, Cowick mentioned his experience as a “combat
lifesaver” once, in the context of presenting his lay opinion on bruising. He did not invoke
- 22 -
scientific, medical, or specialized knowledge when describing what he observed when
interviewing B.L.B. Recognizing a bruise is something an ordinary person does routinely.
Understanding that a bruise may appear sometime after the initial injury is information firmly
within the ordinary layperson’s capacity. Regardless, the jury heard the same information from
Dr. Eckersley and Hoener.
¶ 65 We find this case akin to People v. Terrell, 185 Ill. 2d 467 (1998). There, a police
detective testified to his five-year experience in violent crimes involving sexual assault of
children. Terrell, 185 Ill. 2d at 497. He testified he personally observed the victim’s injuries and,
in response to the State’s question, said “he had never before seen injuries like those suffered by
[the victim].” Terrell, 185 Ill. 2d at 497. The Illinois Supreme Court found “it [was] unnecessary
to determine whether [the detective] was properly qualified as an expert witness because [his]
testimony was an appropriate lay opinion.” Terrell, 185 Ill. 2d at 497. The court explained the
“testimony was based on [the detective’s] personal observations and was helpful to the jury to
clearly understand the extent of [the victim’s] injuries and the amount of force required to inflict
them.” Terrell, 185 Ill. 2d at 497. The court held the trial court did not err in admitting the
detective’s testimony. Terrell, 185 Ill. 2d at 497. Likewise, we find Cowick’s testimony
constituted appropriate lay witness opinion testimony, as he testified to what he personally
observed and aided the jury in evaluating the marks on B.L.B.’s neck. Consequently, we do not
find the trial court’s decision to admit Cowick’s testimony to be unreasonable, arbitrary, or
fanciful. See McDonald, 2016 IL 118882, ¶ 32. Therefore, it did not abuse its discretion. See
Walker, 2021 IL App (4th) 190073, ¶ 19.
¶ 66 C. Excessive Sentence
¶ 67 Finally, defendant argues “[t]he maximum sentence imposed by the trial court
- 23 -
was excessive where it failed to take into account the statutory mitigating factors relevant to
[him].” We disagree.
¶ 68 “The trial court has broad discretionary powers in imposing a sentence, and its
sentencing decisions are entitled to great deference.” People v. Alexander, 239 Ill. 2d 205, 212
(2010). Accordingly, we “may not alter a defendant’s sentence absent an abuse of discretion by
the trial court.” People v. Lawson, 2018 IL App (4th) 170105, ¶ 26. The court abuses its
discretion when the “sentencing decision is fanciful, arbitrary, or unreasonable to the degree that
no reasonable person would agree with it.” (Internal quotation marks omitted.) Lawson, 2018 IL
App (4th) 170105, ¶ 28. For example, a sentence “will be deemed excessive and the result of an
abuse of discretion by the trial court where the sentence is greatly at variance with the spirit and
purpose of the law, or manifestly disproportionate to the nature of the offense.” People v. Stacey,
193 Ill. 2d 203, 210 (2000). We defer to the trial court in sentencing matters because it “is
generally in a better position than the reviewing court to determine the appropriate sentence.”
Stacey, 193 Ill. 2d at 209. The court, for instance, can “observe[ ] the defendant and the
proceedings” and consider factors like “the defendant’s credibility, demeanor, moral character,
mentality, environment, habits, and age.” (Internal quotation marks omitted.) Lawson, 2018 IL
App (4th) 170105, ¶ 33.
¶ 69 “The Illinois Constitution mandates ‘[a]ll penalties shall be determined both
according to the seriousness of the offense and with the objective of restoring the offender to
useful citizenship.’ ” Lawson, 2018 IL App (4th) 170105, ¶ 33 (quoting Ill. Const. 1970, art. I,
§ 11). The trial court must balance the retributive and rehabilitative purposes of punishment by
carefully considering all the statutory factors in aggravation and mitigation. People v. Quintana,
332 Ill. App. 3d 96, 109 (2002); see 730 ILCS 5/5-5-3.1, 5-5-3.2 (West 2024). The court,
- 24 -
however, is not required to explain in detail the exact process by which it determined the
sentence. Quintana, 332 Ill. App. 3d at 109.
¶ 70 Defendant failed to challenge his sentence in a postsentencing motion, which
means he forfeited this argument. See People v. Galarza, 2023 IL 127678, ¶ 45 (“To preserve an
error for consideration on appeal, a defendant must object to the error at trial and raise the error
in a posttrial motion.”). Defendant can bypass forfeiture by establishing a plain error occurred.
Galarza, 2023 IL 127678, ¶ 45. Under the plain error doctrine, “the defendant must first
demonstrate a clear and obvious error occurred.” Galarza, 2023 IL 127678, ¶ 45. Only if a
defendant meets that burden will we then consider whether (1) “the evidence is so closely
balanced that the error alone threatened to tip the scales of justice against the defendant,
regardless of the seriousness of the error” or (2) whether “that error is so serious that it affected
the fairness of the defendant’s trial and challenged the integrity of the judicial process, regardless
of the closeness of the evidence.” (Internal quotation marks omitted.) People v. Sebby, 2017 IL
119445, ¶ 48. We find no plain error.
¶ 71 Defendant contends the 15-year sentence the trial court imposed was excessive
because the court did not adequately consider his mental illness, the effect incarceration would
have on his mental health, and his “difficult past and history.” See 730 ILCS 5/5-5-3.1(a)(12),
(16) (West 2024). The record refutes this claim. The court considered defendant’s “health and
condition, both physical and mental,” and “the background of the defendant, and *** a fairly
difficult upbringing, such that him being here today is really not that surprising.” Likewise, the
court considered the presentence investigation report and its supplements, which detailed
defendant’s mental health diagnoses and abusive childhood.
¶ 72 Although it was not required to do so, the trial court explained why it imposed the
- 25 -
maximum 15-year sentence. The court deemed the weightiest sentencing factor to be defendant’s
significant criminal history. The court found it “appropriate to follow the reasoning and logic
that the more criminal history you’ve accumulated in your life and that [defendant] has
accumulated in his life should lead to a result where there should be more severe consequences,
having accumulated this criminal history.” The court recounted the escalating seriousness of
defendant’s past crimes, culminating in sexual assault. The court also observed defendant was on
probation when he committed this offense, which indicated he could not “stay out of trouble.”
Finally, the court noted it considered the nature and circumstances of this offense and the
seriousness of criminal sexual assault. It explained the 15-year sentence was necessary to punish
defendant and protect the public, and a lesser sentence would deprecate the seriousness of this
crime. The record, therefore, confirms the trial court carefully considered factors in aggravation
and mitigation, as well as its observations of defendant throughout the proceedings. See
Quintana, 332 Ill. App. 3d at 109. We cannot say defendant’s sentence greatly varies from “the
spirit and purpose of the law” or deem it “manifestly disproportionate to the nature of the
offense,” nor is it arbitrary, fanciful, or unreasonable. Stacey, 193 Ill. 2d at 210; Lawson, 2018 IL
App (4th) 170105, ¶ 28. The court did not abuse its discretion in imposing the maximum
sentence. Because there is no clear and obvious error, we will not consider whether plain error
occurred.
¶ 73 Lastly, defendant suggests trial counsel’s failure to file a postsentencing motion
constituted ineffective assistance. He contends, “Counsel should have filed a motion to
reconsider sentence arguing that [defendant’s] troubled past and mental health issues, along with
his rehabilitative potential indicate that his 15-year sentence of imprisonment was excessive.”
We can easily dispense with this argument.
- 26 -
¶ 74 The Illinois and United States Constitutions guarantee criminal defendants the
right to counsel, and the latter mandates “the right to counsel is the right to the effective
assistance of counsel.” (Internal quotation marks omitted.) Strickland v. Washington, 466 U.S.
668, 686 (1984); U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. When presented with
a defendant’s ineffective assistance of counsel claim, we apply the well-established, two-part
Strickland test. People v. Cherry, 2016 IL 118728, ¶ 24. The defendant must prove (1) counsel
rendered deficient performance, meaning counsel’s representation fell below an objective
standard of reasonableness as gauged by prevailing professional norms and (2) counsel’s
deficient performance prejudiced the defendant, i.e., but for counsel’s errors, the result of the
proceeding would have been different. See People v. Young, 341 Ill. App. 3d 379, 383 (2003);
People v. Peck, 2017 IL App (4th) 160410, ¶ 26. If a defendant fails to prove deficient
performance, the court need not consider the prejudice prong, and vice versa. People v. Torres,
228 Ill. 2d 382, 395 (2008); People v. Graham, 206 Ill. 2d 465, 476 (2003).
¶ 75 The record shows that once the trial court finished admonishing defendant on his
appellate rights, counsel asked the court to direct the clerk to file a notice of appeal. The court
asked counsel if he “want[ed] the opportunity to confer with your client” about filing a
postsentencing motion. Counsel replied, “We’ve discussed it,” and defendant wanted “to go
straight to appeal.” Defendant argues “counsel’s decision to forgo a motion to reconsider
sentence was prejudicial in light of the sentence imposed and the mitigating factors that were not
adequately considered in this case.” But counsel’s decision did not prejudice defendant. In fact, it
came after counsel conferred with his client and represented a conscious, tactical decision freely
made by attorney and client. Ignoring the facts to assert a baseless claim of ineffectiveness is as
much a disservice to the attorney as it is to defendant.
- 27 -
¶ 76 For the same reasons outlined above, because the trial court adequately
considered the mitigating factors, we determine that even if counsel had filed a postsentencing
motion, the result would not have been different. See Peck, 2017 IL App (4th) 160410, ¶ 26.
There was no reasonable probability the court would have altered the sentence based on a
supposed failure to consider mitigating factors because it already had considered defendant’s
mental health and difficult childhood. Because we find no prejudice, we need not address the
deficient-performance prong. See Torres, 228 Ill. 2d at 395. Defendant did not receive
ineffective assistance of counsel.
¶ 77 III. CONCLUSION
¶ 78 For the reasons stated, we affirm the trial court’s judgment.
¶ 79 Affirmed.
- 28 -
People v. Dailing, 2026 IL App (4th) 250717
Decision Under Review: Appeal from the Circuit Court of Adams County, No. 24-CF-
771; the Hon. Charles H.W. Burch, Judge, presiding.
Attorneys James E. Chadd, Douglas R. Hoff, and Adrienne E. Sloan, of
for State Appellate Defender’s Office, of Chicago, for appellant.
Appellant:
Attorneys Todd Eyler, State’s Attorney, of Quincy (Patrick Delfino,
for Edward R. Psenicka, and Jenna Seaver, of State’s Attorneys
Appellee: Appellate Prosecutor’s Office, of counsel), for the People.
- 29 -