People v. Stevens

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Appellate Court Date: 2019.02.06

11:34:24 -06'00'

People v. Stevens, 2018 IL App (4th) 160138

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

Caption BILLY J. STEVENS, Defendant-Appellant.

District & No. Fourth District

Docket No. 4-16-0138

Filed November 20, 2018

Decision Under Appeal from the Circuit Court of Ford County, No. 15-CF-22; the

Review Hon. Matthew J. Fitton, Judge, presiding.

Judgment Reversed and remanded.

Counsel on James E. Chadd, Patricia Mysza, and Gavin J. Dow, of State Appellate

Appeal Defender’s Office, of Chicago, for appellant.

Andrew L. Killian, State’s Attorney, of Paxton (Patrick Delfino,

David J. Robinson, and Erin Wilson Laegeler, of State’s Attorneys

Appellate Prosecutor’s Office, of counsel), for the People.

Panel JUSTICE DeARMOND delivered the judgment of the court, with

opinion.

Justices Steigmann and Knecht concurred in the judgment and

opinion.

OPINION

¶1 In February 2015, the State charged defendant, Billy J. Stevens, with two counts of

predatory criminal sexual assault of a child. In July 2015, the trial court conducted the first jury

trial, which resulted in a deadlocked jury and a new trial. The second jury trial took place in

October 2015. The jury found defendant guilty, and he was sentenced to 25 years’

imprisonment.

¶2 On appeal, defendant argues the trial court erred in (1) admonishing the prospective jurors

pursuant to Illinois Supreme Court Rule 431(b) (eff. July 1, 2012); (2) giving Illinois Pattern

Jury Instructions, Criminal, No. 3.01 (4th ed. 2000) (hereinafter IPI Criminal 4th); and (3) not

giving IPI Criminal 4th No. 11.66. Additionally, defendant argues the State committed error by

(1) improperly bolstering the credibility of the victim, M.S., through the testimony of a

witness; (2) questioning defendant about M.S.’s motivation to lie; (3) asking the jury about the

message its verdict would send; and (4) bringing up details not in evidence at trial during

closing arguments. We reverse and remand for a new trial.

¶3 I. BACKGROUND

¶4 Around November or December 2014, defendant was separated from his wife and was

living in his mother’s home. During that time, his daughter, M.S., born in 2003, went to visit

him at this residence. One night, while M.S. was watching a movie in her cousin’s room, she

said defendant came in and hugged her. After hugging her, defendant put his hand in her

vagina and then did the same with his penis. M.S. testified defendant had done this repeatedly

throughout M.S.’s life since she was three or four. After the most recent occurrence in

November or December 2014, M.S. told her school’s social worker, who notified the guidance

counselor and the police.

¶5 As a result, in February 2015, the State charged defendant by information with two counts

of predatory criminal sexual assault of a child, alleging defendant, who was 17 years of age or

older, committed an act of sexual penetration with M.S., who was under 13 years of age, in that

defendant placed his penis (count I) and his finger (count II) in the vagina of M.S on or about

November 2014 through December 2014 (720 ILCS 5/11-1.40(a)(1) (West 2014)).

¶6 The first trial was conducted in July 2015 and resulted in a hung jury. Defendant was

retried on the same charges in October 2015. At the second jury trial, the State called four

witnesses, M.S., Kristina Schuler, Mary Bunyard, and Sergeant Chad Johnson. Defendant was

the sole witness in his case-in-chief.

¶7 A. M.S.

¶8 M.S. testified in detail about the night she was at her grandmother’s house and what her

father did to her, stating she was 11 years old at the time. She described the house she lived in

with her mother and brother as a two-story home, with her room being upstairs. She stated, on

some occasions when she would fight with her mother, defendant would come to her room to

calm her down and then molest her, which began around the age of three or four. After the most

recent occurrence at her grandmother’s house, M.S. told her school’s social worker, Schuler.

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¶9 B. Kristina Schuler

¶ 10 Schuler is the social worker at M.S.’s school and has served in that capacity for the past

nine years. Schuler knew M.S. from working with her on an individualized education plan,

beginning in August 2014. They would meet weekly for about 20 minutes each session. She

described M.S. as “very quiet, very shy” when she first met her, but as the year progressed,

M.S. became more comfortable. She also testified that as time went on she had to do less

prodding to get information from M.S. and never had a problem with M.S. lying. On February

5, 2015, M.S. came to her regular session with Schuler and said she wanted to tell her and the

school guidance counselor, “Mrs. Johnson,” something. The guidance counselor was

unavailable, so Schuler asked if M.S. wanted to just speak to her. M.S. said her father “sexually

abused” her and touched her, pointing to her private area. Schuler did not ask any follow-up

questions in order to avoid interfering with any criminal investigation and contacted “the

authorities.” She told M.S. she was sorry to hear about these allegations and she would contact

people to make sure M.S. was safe.

¶ 11 C. Mary Bunyard

¶ 12 Bunyard is a forensic interviewer with the Children’s Advocacy Center, where she has

worked for two years. Prior to that, she was in law enforcement for 20 years, 10 years as a

patrol officer and 10 years as a detective. She interviewed M.S. while representatives from the

Department of Children and Family Services and law enforcement watched from another

room. She testified that she asked mostly open-ended questions in the interview. The interview

with M.S. was audio recorded and played to the jury as an exhibit during Bunyard’s testimony.

After playing the audio recording, the State asked where M.S. said she was touched, and

Bunyard said M.S. indicated she was touched in her “private area.”

¶ 13 D. Sergeant Chad Johnson

¶ 14 Sergeant Johnson is a sergeant with the Paxton Police Department and was the lead

investigator in this case. He interviewed defendant and stated defendant would have been 34

years old at the time of the alleged conduct. In the interview, defendant denied the allegations

but never said M.S. was lying. When asked if defendant had an explanation for the allegations,

defendant referenced a conversation with his daughter about whether the new bras she bought

with her mother fit, but he claimed he did not touch her. Sergeant Johnson also observed the

interview with M.S. The details of her timeline and defendant’s timeline were “right on track,”

meaning the timelines “were exactly the same.”

¶ 15 E. Defendant

¶ 16 Defendant testified on his own behalf and stated he had been living with his mother for the

past three months or so since he was separated from his wife. He testified about his convictions

for theft and driving with a revoked license. He described his relationship with his daughter as

good and said M.S. would come to him if she had problems. He described the family home

before the separation as a two-story home where he and his wife shared a bedroom on the first

floor and the two children each had their own bedroom on the second floor. He denied each of

the specific allegations in his testimony. He also admitted, when M.S. came over to visit while

defendant was living in his mother’s home, they would sleep in the same room, with M.S. on

one bed and defendant on another. He also admitted on cross-examination that he would go to

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M.S.’s room at times to calm her down. On cross-examination, he was unable to give any

reason why his daughter was making up these “horrible accusations.”

¶ 17 The jury found defendant guilty on both counts, and the trial court sentenced defendant to

25 years’ imprisonment in the Illinois Department of Corrections.

¶ 18 This appeal followed.

¶ 19 II. ANALYSIS

¶ 20 A. Voir Dire Admonishments

¶ 21 Defendant argues the trial court erred by failing to properly inquire of the jury pursuant to

Illinois Supreme Court Rule 431(b) (eff. July 1, 2012), commonly referred to as the four Zehr

principles (see People v. Zehr, 103 Ill. 2d 472, 469 N.E.2d 1062 (1984)). Specifically,

defendant contends the court failed to ask prospective jurors whether they understood the

State’s burden of proof or that defendant was not required to present evidence. The State

concedes error on this contention, and we accept the State’s concession.

¶ 22 Rule 431(b) requires the trial court to ask each potential juror

“whether that juror understands and accepts the following principles: (1) that the

defendant is presumed innocent of the charge(s) against him or her; (2) that before a

defendant can be convicted the State must prove the defendant guilty beyond a

reasonable doubt; (3) that the defendant is not required to offer any evidence on his or

her own behalf; and (4) that if a defendant does not testify it cannot be held against him

or her; however, no inquiry of a prospective juror shall be made into the defendant’s

decision not to testify when the defendant objects.” Ill. S. Ct. R. 431(b) (eff. July 1,

2012).

“The language of Rule 431(b) is clear and unambiguous,” mandating “a specific question and

response process.” People v. Thompson, 238 Ill. 2d 598, 607, 939 N.E.2d 403, 409-10 (2010).

A trial court “must ask each potential juror whether he or she understands and accepts each of

the principles in the rule,” and “the rule requires an opportunity for a response from each

prospective juror on their understanding and acceptance of those principles.” Thompson, 238

Ill. 2d at 607. We review de novo whether the trial court followed Rule 431(b). People v.

Wrencher, 2011 IL App (4th) 080619, ¶ 37, 959 N.E.2d 693.

¶ 23 Here, the trial court asked the prospective jurors whether they were “unable and unwilling

to accept and embrace” that “all persons charged with a crime are presumed to be innocent.”

Second, it asked the jurors whether they were “unable or unwilling to accept or embrace and

apply the principle” that “it is the burden of the State who has brought the charge to prove the

Defendant guilty beyond a reasonable doubt.” Regarding the third principle that “defendant

has no obligation to testify on his own behalf,” the court asked if anyone had “a problem with

that principle.” The court inquired whether any jurors had “a problem or cannot accept” the

fourth principle concerning defendant having no obligation to call any witnesses or present any

evidence in his defense. Later in voir dire, the court asked the jurors as a group, “[d]o you

understand this is a criminal case and the Defendant is presumed innocent as he is charged?”

The court followed up by asking, “You understand the Defendant in this case has a

constitutional right to not testify? If in fact he does not testify that in anyway [sic] cannot make

any difference in you arriving at any decision you might make.” The court failed to ask

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whether the jurors understood the State’s burden of proving defendant guilty beyond a

reasonable doubt and that defendant was not required to offer any evidence on his behalf.

¶ 24 In People v. Wilmington, 2013 IL 112938, 983 N.E.2d 1015, our supreme court determined

whether a trial court erred in following Rule 431(b) by asking the prospective jurors if they

disagreed with three of the principles enumerated in Rule 431(b). Our supreme court stated it

was arguable whether the trial court’s inquiry, asking for disagreement and getting none, was

equivalent to asking for acceptance. Wilmington, 2013 IL 112938, ¶ 32. However, the court

held “the trial court’s failure to ask jurors if they understood the four Rule 431(b) principles is

error in and of itself.” (Emphasis in original.) Wilmington, 2013 IL 112938, ¶ 32.

¶ 25 In this case, it is arguable the trial court asked the prospective jurors whether they could

accept the Rule 431(b) principles by asking if they had a problem with them. As we stated in

People v. McGuire, 2017 IL App (4th) 150695, ¶ 35, 92 N.E.3d 494, “trial judges must strictly

comply with Rule 431(b).” The rule ensures jurors understand and accept the bedrock

principles of our criminal law, and failing to comply “could threaten the integrity of the jury’s

verdict” or “cast doubt on any guilty verdict a jury might return.” McGuire, 2017 IL App (4th)

150695, ¶ 35. “Trial courts must exercise diligence when instructing the jury of the Zehr

principles as codified in Rule 431(b) and must not deviate in any way from the precise

language chosen by the Illinois Supreme Court to be in that rule.” McGuire, 2017 IL App (4th)

150695, ¶ 35. In order to protect the record, prosecutors must also be aware of the strict

requirement of Rule 431(b) so “they can alert the trial court to any improper deviation from

that rule.” McGuire, 2017 IL App (4th) 150695, ¶ 35.

¶ 26 In this case, it is clear the court never asked whether the jurors understood the State’s

burden to prove defendant guilty beyond a reasonable doubt or the fact that defendant was not

required to present evidence on his own behalf, and thus the court committed error. The

language of Rule 431(b) is clear; the four principles are set forth succinctly, and the two

questions to be asked, in whatever manner the court chooses, are simple: “do you understand”

and “do you accept.”

¶ 27 Defendant did not object to the admonishments during the voir dire. Ordinarily, “[t]o

preserve a purported error for consideration by a reviewing court, a defendant must object to

the error at trial and raise the error in a posttrial motion.” People v. Sebby, 2017 IL 119445,

¶ 48, 89 N.E.3d 675. If not, the error results in forfeiture. Sebby, 2017 IL 119445, ¶ 48.

However, there is a well-established exception to that principle. Sebby, 2017 IL 119445, ¶ 48.

Illinois Supreme Court Rule 615(a) (eff. Jan. 1, 1967) provides “substantial or what have

become known as plain errors may be noticed although they were not brought to the attention

of the trial court.” (Internal quotation marks omitted.) Sebby, 2017 IL 119445, ¶ 48. This

voir dire error is subject to a plain-error analysis. Wilmington, 2013 IL 112938, ¶ 31. For the

sake of convenience and to avoid repetition, we will address each of defendant’s claimed

unpreserved errors in one plain-error analysis later.

¶ 28 B. IPI Criminal 4th No. 3.01

¶ 29 Defendant argues the trial court erred in giving IPI Criminal 4th No. 3.01, which states the

prosecution is not required to prove that the offense was committed on the particular date

charged, to the jury. We disagree.

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¶ 30 “Generally, the decision to give certain jury instructions rests with the trial court, and that

decision will not be reversed on appeal absent an abuse of that discretion.” People v. Hale,

2012 IL App (4th) 100949, ¶ 19, 967 N.E.2d 476.

“Giving IPI Criminal 3d No. 3.01 [(Illinois Pattern Jury Instructions, Criminal, No.

3.01 (3d ed. 1992))] may result in reversible error, (1) where inconsistencies between

the date charged in the indictment and the evidence presented at trial are so great that

the defendant is misled in presenting his defense or (2) when he presents an alibi for the

time alleged in the indictment and is thereby prejudiced because he failed to gather

evidence and witnesses for the time actually proved by the State.” People v. Suter, 292

Ill. App. 3d 358, 364, 685 N.E.2d 1023, 1028 (1997).

¶ 31 Here, defendant asserts no alibi to the allegations and in fact acknowledged he was present

on the night in question; thus, the second prong is not invoked here. Instead, the question

becomes whether there is any variance in the dates alleged and whether the evidence misled

defendant in the preparation of his defense.

¶ 32 Defendant’s argument is analogous to that of the defendant in People v. Cregar, 172 Ill.

App. 3d 807, 822-23, 526 N.E.2d 1376, 1386-87 (1988). In Cregar, 172 Ill. App. 3d at 823, the

defendant contended the lack of an instruction on other crimes was exacerbated by an Illinois

Pattern Jury Instructions, Criminal, No. 3.01 (2d ed. 1981) instruction stating the State need

not prove the offense occurred on the exact date charged. This court stated, in Cregar, it was

not error because the date alleged in the indictment was immaterial as long as the State proved

the offense occurred at any time within the statute of limitations. Cregar, 172 Ill. App. 3d at

823.

¶ 33 In this case, as in Cregar, defendant argued the error of submitting the instruction as to

variance of dates was exacerbated by not instructing the jury about other-crimes evidence

brought out by the testimony regarding molestation of M.S. from the age of three or four. We

find that argument unconvincing, as we did in Cregar. See People v. Barlow, 188 Ill. App. 3d

393, 402-03, 544 N.E.2d 947, 953 (1989) (“[B]ecause the date of the offense is not an essential

element in child sex offenses [citation], any change in the dates does not alter the nature of the

crime charged.”). The testimony clearly centered around the incident during November or

December 2014. Both defendant and M.S. spoke about that particular time period. The

other-crimes evidence was more vague, not specific, and clearly admissible. Even defendant

acknowledged the admissibility of propensity evidence pursuant to section 11-7.3(a)(1), (b) of

the Code of Criminal Procedure of 1963 (725 ILCS 5/115-7.3(a)(1), (b) (West 2014)).

Moreover, defendant’s defense was also not time-specific and was a complete denial.

Defendant was then directed to the specific time frame of November 2014 and again

unequivocally denied “anything of a sexual nature.” For good measure, his attention was then

directed to M.S.’s testimony the day before, and he again denied “the things she said took place

between the two of [them].”

¶ 34 Exactly when in November through December 2014 was not clear. M.S. said the last

occurrence was at her grandmother’s house “close to the end of winter,” between

Thanksgiving and Christmas. Otherwise the testimony about other incidents of sexual abuse

was very general in nature. Defendant said he moved out of the home with M.S. and her mother

in November 2014 and moved in with his mother, M.S.’s grandmother. He said she came to

visit on only two occasions where she stayed overnight, again without being specific.

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¶ 35 According to defendant, regardless of the date, he did not do it. Under the circumstances, in

light of the broad range of dates charged between November 2014 and December 2014, the

court giving IPI Criminal 4th No. 3.01 was appropriate and caused no prejudice to defendant.

¶ 36 C. IPI Criminal 4th No. 11.66

¶ 37 Defendant argues the trial court erred by failing to give IPI Criminal 4th No. 11.66 to the

jury. The State concedes error, and we accept its concession.

¶ 38 IPI Criminal 4th No. 11.66 instructs a jury to determine the weight to be given to hearsay

statements at trial, considering the “age and maturity” of the victim, “the nature of the

statement[s], [and] the circumstances under which *** statement[s]” were made.

“In a prosecution for a physical or sexual act perpetrated upon or against a child under

the age of 13 ***, the following evidence shall be admitted as an exception to the

hearsay rule:

***

(2) 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.

(b) Such testimony shall only be admitted if:

(1) The court finds in a hearing conducted outside the presence of the jury that

the time, content, and circumstances of the statement provide sufficient safeguards

of reliability; and

(2) The child or moderately, severely, or profoundly intellectually disabled

person either:

(A) testifies at the proceeding; ***

***

(c) If a statement is admitted pursuant to this Section, the court shall instruct the

jury that it is for the jury to determine the weight and credibility to be given the

statement and that, in making the determination, it shall consider the age and maturity

of the child, or the intellectual capabilities of the moderately, severely, or profoundly

intellectually disabled person, the nature of the statement, the circumstances under

which the statement was made, and any other relevant factor.” 725 ILCS

5/115-10(a)(2), (b)(1), (b)(2)(A), (c) (West 2014).

¶ 39 Here, the statements by Bunyard and Schuler were hearsay statements made by M.S., who

was 11 years old at the time of the statements, and M.S. testified at trial. Under a clear reading

of section 115-10 of the Code of Criminal Procedure of 1963, trial court was required to give

IPI Criminal 4th No. 11.66. 725 ILCS 5/115-10(c) (West 2014). Since the court did not, we

find it committed error. See People v. Mitchell, 155 Ill. 2d 344, 354, 614 N.E.2d 1213, 1217

(1993). This error was also not preserved by defendant through objection or posttrial motion

and is subject to plain-error review.

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¶ 40 D. Bolstering Credibility

¶ 41 Defendant argues the State repeatedly engaged in conduct that improperly bolstered M.S.’s

credibility. We agree.

¶ 42 “Because questions of credibility are to be resolved by the trier of fact [citation] ‘it is

generally improper to ask one witness to comment directly on the credibility of another

witness.’ ” People v. Boling, 2014 IL App (4th) 120634, ¶ 121, 8 N.E.3d 65 (quoting People v.

Becker, 239 Ill. 2d 215, 236, 940 N.E.2d 1131, 1143 (2010)). “[O]ne witness should not be

allowed to express his [or her] opinion as to another witness’s credibility.” People v.

Henderson, 394 Ill. App. 3d 747, 754, 915 N.E.2d 473, 478 (2009).

¶ 43 1. Schuler’s Testimony

¶ 44 Defendant argues the State improperly bolstered M.S.’s credibility by eliciting statements

from Schuler about M.S.’s veracity. We agree.

¶ 45 During the State’s direct examination of Schuler, the following exchange occurred:

“Q. Now, as far as—I am asking veracity, telling the truth, did you ever have a

problem with [M.S.] lying to you about things?

A. No, no, I did not.”

The State argues the aforementioned exchange was not a way to bolster credibility but instead

laid the foundation for M.S.’s character for truthfulness; both are impermissible.

¶ 46 In People v. Brothers, 2015 IL App (4th) 130644, 39 N.E.3d 1101, this court analyzed

whether the State committed error when the officer stated the victim was very credible in a

sexual assault case. When the State asked about the demeanor of the victim, the officer stated,

“She was still in shock” “but very believable, very credible.” (Internal quotation marks

omitted.) Brothers, 2015 IL App (4th) 130644, ¶ 18. This court said that was improper even

though the officer volunteered the information without prompting. Brothers, 2015 IL App

(4th) 130644, ¶ 126.

¶ 47 A witness is only permitted to express an opinion about another witness’s character for

truthfulness after their character for truthfulness has been attacked by reputation or opinion

evidence. See Ill. R. Evid. 608 (eff. Jan. 6, 2015). Such was not the case here. The State elicited

the aforementioned testimony in its direct examination of its second witness, Schuler. Before

that, the only inquiry by defendant’s attorney centered on a specific incident, not reputation or

character. In response to a question about whether she told her mother about the ongoing

abuse, the victim said, “[My mom] won’t listen to me.” Defense counsel merely entered the

door the prosecutor opened by asking one question about whether her mother believed her.

There was no reason for the testimony to come in other than to bolster M.S.’s credibility in an

improper way. See Brothers, 2015 IL App (4th) 130644, ¶ 126. As such, we find this was in

error and subject to plain-error review.

¶ 48 2. Questioning of Defendant and Defendant’s Statements

¶ 49 Defendant argues the State improperly elicited testimony from him and Sergeant Johnson

about why M.S. would lie. The State concedes error on this issue, and we accept the State’s

concession.

¶ 50 “It is well established that it is improper for a prosecutor to ask a defendant his opinion on

the veracity of other witnesses, as such questions intrude on the jury’s function to determine

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witness credibility and also demean and ridicule the defendant.” People v. Schaffer, 2014 IL

App (1st) 113493, ¶ 49, 4 N.E.3d 176.

¶ 51 In Schaffer, 2014 IL App (1st) 113493, the appellate court analyzed the State’s questions to

the defendant on cross-examination in an aggravated criminal sexual assault and home

invasion case. The defendant was asked by the prosecutor multiple times if the victim made up

certain details, such as the defendant charging into her bedroom, threatening to kill her, and

taking her wedding band. Schaffer, 2014 IL App (1st) 113493, ¶ 50. The court deemed this was

improper, as the questions were “designed to demean and ridicule [the] defendant.” Schaffer,

2014 IL App (1st) 113493, ¶ 51. The court in that case found plain error where the evidence

was closely balanced and hinged on a credibility determination, stating “the prosecution’s

improper cross-examination denied [the] defendant a fair trial.” Schaffer, 2014 IL App (1st)

113493, ¶ 58.

¶ 52 Here, the prosecutor cross-examined defendant about the credibility of M.S. as follows:

“Q. And you have no idea why she would make something like this up?

A. No, I do not.

Q. Did you have a good relationship with her?

A. Yes, I did.

Q. So out of the blue your 11[-], now 12-year-old daughter shows up and is making

these horrible accusations about you and you have no idea why?

A. Yes.”

¶ 53 The State clearly asked defendant to comment on the veracity of another witness, M.S.,

which is improper. See Schaffer, 2014 IL App (1st) 113493, ¶ 49. This error was exacerbated

in closing arguments, when the prosecutor said, “But he can’t come up with any particular

reason why she would lie.” While at times this error could be harmless, “reversal is warranted

when the evidence is closely balanced and the credibility of the witnesses is a crucial factor

underlying the jury’s determination of guilt or innocence.” Schaffer, 2014 IL App (1st)

113493, ¶ 49. As this error is unpreserved, we will review under a plain-error analysis to

evaluate if the evidence is closely balanced.

¶ 54 E. Closing Argument

¶ 55 Defendant argues the State committed reversible error with certain comments made during

closing argument. We agree.

¶ 56 Prosecutors have “wide latitude in making a closing argument and [are] permitted to

comment on the evidence and any fair, reasonable inferences it yields.” People v. Glasper, 234

Ill. 2d 173, 204, 917 N.E.2d 401, 419 (2009). “It is, however, improper for the prosecutor to

argue assumptions or facts not based upon the evidence in the record.” People v. Kliner, 185

Ill. 2d 81, 151, 705 N.E.2d 850, 885 (1998). “A closing argument must be viewed in its

entirety, and the challenged remarks must be viewed in their context. [Citation.] Statements

will not be held improper if they were provoked or invited by the defense counsel’s argument.”

Glasper, 234 Ill. 2d at 204. However, “[i]mproper remarks warrant reversal only where they

result in substantial prejudice to the defendant, considering the content and context of the

language, its relationship to the evidence, and its effect on the defendant’s right to a fair and

impartial trial.” Kliner, 185 Ill. 2d at 151-52.

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¶ 57 1. Comment on Facts Outside of the Evidence

¶ 58 Defendant argues the State committed error when it said the cunning nature of sexual

predators is something “we” see on a daily basis. We agree.

¶ 59 In this case, the State on rebuttal stated as follows:

“[Defense counsel] argues that [defendant] must have been so cunning and so slick, he

can do it over and over again and no one has a clue. Absolutely. We see that everyday

in the news. We see that everyday, predators who pick out the perfect victim, the victim

they know who is not going to tell on them, the victim they can do these things over and

over again and no one is going to believe them or they are not going to tell anybody.

That’s not unheard of, ladies and gentlemen. We see it on a daily basis.”

¶ 60 In People v. Lowry, 354 Ill. App. 3d 760, 771, 821 N.E.2d 649, 661 (2004), the appellate

court stated it was improper in closing arguments to refer to “studies” to explain the

discrepancies in witnesses’ testimonies where there was no evidence of the “studies”

referenced. In People v. Adams, 2012 IL 111168, ¶ 16, 962 N.E.2d 410, the State argued in

closing that the officer who testified had to be believed because if the officer lied, he would be

risking his job and his freedom. Our supreme court said this statement was “impermissible

speculation, as no evidence was introduced at trial” to back those claims by the State. Adams,

2012 IL 111168, ¶ 20.

¶ 61 Here, the statement about how cunning or calculating sexual offenders that the State sees

on a daily basis are was not presented as evidence in the trial. The State argues the statement is

a permissible comment based on the jury’s common knowledge. However, these comments

went beyond talking about daily experiences of jurors and their knowledge of sexual abuse but

went to matters outside of the trial. Had the State presented expert testimony to assist in

exploring M.S.’s behavior under section 115-7.2 of the Code of Criminal Procedure of 1963,

the comments might have been admissible. See 725 ILCS 5/115-7.2 (West 2014). Here,

however, the State was inferring knowledge of the habits of sexual predators as a matter of

common knowledge. Therefore, the State injected error with its comments and, as there was no

objection at trial or in a posttrial motion, we review this error under a plain-error analysis.

¶ 62 2. Comment About Message to Victims

¶ 63 Defendant argues the State committed error by asking the jury what kind of message it

would send to victims if defendant was acquitted. We agree.

¶ 64 “[A] defendant’s guilt may be proved only by ‘legal and competent’ facts, ‘uninfluenced

by bias or prejudice raised by irrelevant evidence.’ ” People v. Blue, 189 Ill. 2d 99, 129, 724

N.E.2d 920, 936 (2000) (quoting People v. Bernette, 30 Ill. 2d 359, 371, 197 N.E.2d 436, 443

(1964)). “It is a basic principle of our criminal justice system that the prosecutor owes the

defendant a duty of fairness.” People v. Dunsworth, 233 Ill. App. 3d 258, 269, 599 N.E.2d 29,

36 (1992). “Because this duty extends throughout the trial and includes closing arguments, the

prosecutor has an ethical obligation to refrain from presenting improper and prejudicial

argument.” People v. Liner, 356 Ill. App. 3d 284, 292, 826 N.E.2d 1274, 1282 (2005). “The

broader problems of crime in society should not be the focus of a jury considering the guilt or

innocence of an individual defendant, lest the remediation of society’s problems distract jurors

from the awesome responsibility with which they are charged.” People v. Johnson, 208 Ill. 2d

53, 77-78, 803 N.E.2d 405, 419 (2003).

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¶ 65 Here, the prosecutor in closing arguments stated as follows:

“All we have are [M.S.’s] words. That has to be enough, ladies and gentlemen. Think

of the message that you send to victims. Think of the message that we would be

sending to victims by our Criminal Justice System, “Hey, don’t you come forward.

Don’t say anything, don’t even complain about these unless you got some

corroborating evidence, unless you got DNA [(deoxyribonucleic acid)] or confession

from the person, don’t even come forward because you will not get over that burden.

That’s not true, ladies and gentlemen. Her words are absolutely and can be

absolutely enough.”

¶ 66 In Liner, 356 Ill. App. 3d at 291, the appellate court reviewed whether the prosecutor’s

closing statement was improper. In closing arguments, the prosecutor said, “[Y]ou’re not just

protecting [the victim]. You’re protecting every child and every citizen in every home in this

county.” (Internal quotation marks omitted.) Liner, 356 Ill. App. 3d at 291. The court held the

comments were improper since they were made to inflame the passions of the jury about a

member of a class of “which we, as a society, are sympathetic.” Liner, 356 Ill. App. 3d at 297.

¶ 67 In People v. Fletcher, 156 Ill. App. 3d 405, 410, 509 N.E.2d 625, 629-30 (1987), the

appellate court looked at the propriety of the State’s closing argument. There, the State said, “If

you want to find him not guilty because that was a, just a seven year old testifying, you can do

so. But in doing so, you are saying that a seven year old’s testimony can never convict a

defendant.” (Internal quotation marks omitted.) Fletcher, 156 Ill. App. 3d at 410. The First

District said the aforementioned comment was erroneous and “went to matters not in

evidence.” Fletcher, 156 Ill. App. 3d at 411.

¶ 68 In this case, the statements about the message it would send to child victims of sexual

abuse was intended to inflame the emotions of the jury for a sympathetic class—children. As in

Fletcher, the statement was not about the testimony at trial but instead went to a broader issue

not in evidence. As such, it was improper for the State to ask the jurors to send a communal

message by their verdict. This error was not preserved, and we will review this as a matter of

plain error as well.

¶ 69 F. Plain Error

¶ 70 Defendant argues the aforementioned unpreserved errors should be reviewed under a

plain-error analysis and this court should vacate the verdict and remand for a new trial. We

agree.

¶ 71 “Plain errors or defects affecting substantial rights may be noticed although they were not

brought to the attention of the trial court.” Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967).

“[T]he plain-error doctrine bypasses normal forfeiture principles and allows a

reviewing court to consider unpreserved error when either (1) the evidence is close,

regardless of the seriousness of the error, or (2) the error is serious, regardless of the

closeness of the evidence. In the first instance, the defendant must prove ‘prejudicial

error.’ That is, the defendant must show both that there was plain error and that the

evidence was so closely balanced that the error alone severely threatened to tip the

scales of justice against him. The State, of course, can respond by arguing that the

evidence was not closely balanced, but rather strongly weighted against the defendant.

In the second instance, the defendant must prove there was plain error and that the error

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was so serious that it affected the fairness of the defendant’s trial and challenged the

integrity of the judicial process.” People v. Herron, 215 Ill. 2d 167, 186-87, 830 N.E.2d

467, 479-80 (2005).

In the second instance, “[p]rejudice to the defendant is presumed because of the importance of

the right involved, ‘regardless of the strength of the evidence.’ ” (Emphasis in original.)

Herron, 215 Ill. 2d at 187 (quoting Blue, 189 Ill. 2d at 138). Under the first prong of plain-error

analysis, “[w]hat makes an error prejudicial is the fact that it occurred in a close case where its

impact on the result was potentially dispositive.” Sebby, 2017 IL 119445, ¶ 68. Thus, whether

the error is “trivial or de minimis” is “simply the wrong inquiry. Sebby, 2017 IL 119445, ¶ 69.

“The only question in a first-prong case, once clear error has been established, is whether the

evidence is closely balanced.” Sebby, 2017 IL 119445, ¶ 69. “In both instances, the burden of

persuasion remains with the defendant.” Herron, 215 Ill. 2d at 187. “In determining whether

the evidence adduced at trial was close, a reviewing court must evaluate the totality of the

evidence and conduct a qualitative, commonsense assessment of it within the context of the

case.” Sebby, 2017 IL 119445, ¶ 53. “A reviewing court’s inquiry involves an assessment of

the evidence on the elements of the charged offense or offenses, along with any evidence

regarding the witnesses’ credibility.” Sebby, 2017 IL 119445, ¶ 53. “The issue before us,

however, does not involve the sufficiency of close evidence but rather the closeness of

sufficient evidence.” Sebby, 2017 IL 119445, ¶ 60.

¶ 72 Here, defendant argues plain error under the closely balanced prong. In Sebby, our supreme

court determined whether the evidence was closely balanced due to conflicting credible

accounts of the alleged crime of resisting a peace officer. Sebby, 2017 IL 119445, ¶ 60. There

the court mentioned the two different accounts were plausible, “and neither version [was]

supported by corroborating evidence.” Sebby, 2017 IL 119445, ¶ 62. As such, the court

believed the evidence was closely balanced as in People v. Naylor, 229 Ill. 2d 584, 606-607,

893 N.E.2d 653, 667-68 (2008).

¶ 73 In Naylor, 229 Ill. 2d at 606-07, our supreme court analyzed whether the case was closely

balanced because of a “contest of credibility.” In that case, the court stated the defendant’s

testimony was “credible in that it [was] consistent with much of the officers’ testimony and the

circumstances of his arrest.” Naylor, 229 Ill. 2d at 607. Given the opposing versions of the

same event and no extrinsic evidence to corroborate either version, the case “necessarily

involved the court’s assessment of the credibility of the two officers against that of [the]

defendant.” Naylor, 229 Ill. 2d at 607.

¶ 74 Here, this case boiled down to a clear question of credibility between M.S. and defendant.

Although other witnesses testified, three of them restated what they were told by M.S or

defendant. Sergeant Johnson mentioned the similarities in the description of events, which

makes defendant’s account more plausible as was argued in Naylor, 229 Ill. 2d at 607. The

State argues defendant made an inculpatory statement to police, referring to one exchange

during the direct examination of Sergeant Johnson:

“Q: And as far as [M.S.’s] room, in particular, did he ever say he went into her

room? Was there ever anything in the conversation with the Defendant about that?

A: Yes, she had talked about an incident once where she was jumping on the bed,

and he had come up there and yelled at her, and had done somethings [sic], and he

claimed that he never would ever go into her room, wouldn’t come up to her bedroom.”

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At best, this qualifies as a potentially inconsistent statement by defendant since he testified at

trial that he had, on occasion, gone upstairs to her bedroom when they lived together to calm

her down. If the State had presented evidence of a medical examination of M.S. revealing

evidence of sexual activity, regardless of how recent, or expert testimony regarding the

frequently observed effects on child sexual abuse victims in school or around other people, this

may not have been solely a question of credibility. In cases where the evidence is a contest of

credibility and there is no extrinsic evidence, the evidence is closely balanced. See Sebby, 2017

IL 119445, ¶ 63; see also Naylor, 229 Ill. 2d at 607. It is the jury’s job to make credibility

determinations, and the various errors here interfered with its ability to do that.

¶ 75 The failure to properly admonish the jury as to the four basic Zehr principles in criminal

prosecutions is plain error. Our supreme court has been clear that especially in close cases, a

failure to follow Rule 431(b) can create reversible error by itself. The improper bolstering of

M.S.’s testimony tipped the scale, especially in light of the failure to provide a complete

instruction on how to even evaluate a child victim’s testimony. Demeaning or ridiculing

defendant also undermined his credibility, which was very important as the jury was asked to

determine which witness it found more credible. The closing argument statements threatened

the fairness of the trial and allowed a jury to convict not on the evidence but instead based on

emotion or information not properly presented. The cumulative effect of these errors in

conjunction with the closely balanced nature of the case requires a new trial. See Sebby, 2017

IL 119445, ¶¶ 68-69 (finding a defendant must only show error and a closely balanced case to

be entitled to a new trial).

¶ 76 While we must reverse defendant’s conviction, we find the evidence was sufficient to

prove defendant guilty beyond a reasonable doubt. The jury was perfectly justified in believing

the testimony of M.S., and the credible testimony of a victim without more can be sufficient to

justify a conviction. See People v. Summers, 353 Ill. App. 3d 367, 372, 818 N.E.2d 907, 977

(2004); see also People v. Johnson, 2016 IL App (4th) 150004, ¶ 32, 55 N.E.3d 32 (finding the

jury could give more weight to the victim’s testimony over the defendant’s and find the

defendant guilty off the victim’s testimony alone). Thus, we find there is no double jeopardy

impediment to a new trial. See Hale, 2012 IL App (4th) 100949, ¶ 26. However, we reach no

conclusion regarding defendant’s guilt that would be binding on retrial. See Naylor, 229 Ill. 2d

at 611.

¶ 77 G. Ineffective Assistance of Counsel

¶ 78 Defendant argues, alternatively, the unpreserved errors should be reviewed for ineffective

assistance of counsel if we found there was not plain error. Based upon our finding of plain

error, analysis of this issue is unnecessary.

¶ 79 III. CONCLUSION

¶ 80 For the reasons stated, we reverse the trial court’s judgment and remand for a new trial.

¶ 81 Reversed and remanded.

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