2022 IL App (2d) 210328-U No. 2-21-0328 Order filed November 10, 2022
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Kane County. ) Plaintiff-Appellee, ) ) v. ) No. 18-CF-1499 ) JOSE BARON, a/k/a Jose Barron, ) Honorable ) Alice C. Tracy, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________
PRESIDING JUSTICE BRENNAN delivered the judgment of the court. Justices McLaren and Jorgensen concurred in the judgment.
ORDER
¶1 Held: Sufficient evidence supported defendant’s convictions of various sex offenses against his niece. Although the victim described defendant abusing her in situations where there was a risk of discovery by third persons, we will not disturb the trial court’s findings that the victim’s accounts were credible and defendant’s denials were not credible.
¶2 After a bench trial, defendant, Jose Baron, a/k/a Jose Barron, was convicted of three counts
of criminal sexual assault (720 ILCS 5/11-1.20(a)(3) (West 2016)) and one count of aggravated
criminal sexual abuse (id. § 11-1.60(b)) and sentenced to a total of 15 years in prison. On appeal, 2022 IL App (2d) 210328-U
he contends that he was not proven guilty beyond a reasonable doubt of any of these offenses. We
affirm.
¶3 I. BACKGROUND
¶4 The State charged defendant with by indictment nine offenses, all allegedly committed
between October 12, 2015, and March 22, 2018, against his niece, Y.M., who was then under 18
years old. Specifically,
a) counts I and II alleged that defendant committed separate acts of criminal sexual assault by
placing his mouth on the sex organ of Y.M.
b) count III alleged that he committed criminal sexual assault by placing his fingers into the
sex organ of Y.M.
c) count IV alleged that he committed aggravated criminal sexual abuse by placing his fingers
on the sex organ of Y.M.
d) counts V and VI alleged that he committed separate acts of criminal sexual assault by
placing his sex organ into the mouth of Y.M.
e) counts VII, VII, and IX alleged that he committed separate acts of criminal sexual assault
by touching the breast of Y.M.
All counts alleged that defendant committed the acts for his sexual arousal or gratification.
¶5 Defendant’s trial began January 4, 2020. We recount the trial evidence. Y.M. testified on
direct examination as follows. She was 18 years old and had resided on Southfield Avenue in
Aurora for three years with her mother, Elia M., her stepfather, Gustavo Echeverria, and her sister,
Y.S. Previously, her family had resided on Winterfield Drive in Aurora.
¶6 In March 2018, Y.M. spoke with her mother and sister. They then went to the Aurora
police station and the Kane County Child Advocacy Center (Child Advocacy Center) in Geneva.
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At that time, defendant resided on Benton Street in Aurora with his wife, Maria, his stepdaughters,
Perla and Gabriella, and his son Jonathan. Maria was Elia’s sister.
¶7 Every weekend in 2015, Y.M. and Y.S. stayed over at defendant’s house on Second
Avenue in Aurora because Elia worked late. She also went there on weekdays to be with her
cousins and on other occasions. At times, Y.M. would get out of school and take a short walk to
defendant’s house, which was across from her house. Asked whether she was ever there when the
only other person present was defendant, Y.M. could not recall any such occasion. At times,
however, other people were in the house, but she and defendant were alone in a room.
¶8 Y.M. further testified that the police were contacted because defendant had been molesting
Y.M. since she was 12 years old. The first time was when she and Y.S. stayed overnight and slept
on a couch in defendant’s living room. At one point, Y.M. woke up and felt something on her
vagina. She looked and saw defendant’s mouth on the outside of her vagina. Y.S. was still asleep,
and no one else was around. Y.M. noticed that her jeans and underwear had been pulled down to
her ankles. Defendant told her to be quiet and go back to sleep, and he left.
¶9 The second incident occurred when Y.M. was 12 or 13 years old. She, family members,
and numerous relatives were attending a barbecue at her Uncle Luis’s house on Benton Street in
Aurora. Y.M. was on or near the front porch. Nobody else was on the front porch then. Defendant
came up to Y.M. and pulled her aside. He then led her to behind one of the vehicles parked in the
driveway to the right of the house. Though she knew there were people sitting at tables set up in
the backyard, she could not see anyone else from the area where he led her. Defendant told her to
be quiet and kissed her on the mouth. Next, he rubbed her pants over her vagina. After a few
minutes, Y.M. heard her sister calling, and she ran off. Defendant told her to go back and not tell
anyone.
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¶ 10 The third incident occurred shortly before Halloween, probably when Y.M. was 14. Her
family was living on Winterfield Drive. Y.M., Y.S., and their friend Anai were outside defendant’s
house. From inside the house, defendant called out to Y.M. to come inside. After she complied,
defendant pulled her into the bathroom and started kissing her. Next, he touched her jeans outside
her vagina and started to unbutton them. Y.S. started calling Y.M., so she removed defendant’s
hand and ran outside. Inside the house, she had seen only defendant.
¶ 11 The next incident occurred when Y.M. was 14. She and Y.S. were in defendant’s living
room, waiting for Elia to pick them up. From upstairs, defendant called for Y.M. to help him read
an English-language newspaper. Y.M. ran upstairs and entered defendant’s bedroom. When
defendant entered the bedroom, he walked past her and closed the door. He kissed her, removed
her jeans and underwear, rubbed the outside of her vagina, and started to unbuckle his jeans. Y.S.
called out to Y.M. that Elia was waiting for them. The girls left.
¶ 12 When Y.M. was 14, defendant drove to her home on Winterfield Drive to take her and Y.S.
to his home so they could play with their cousins. As Y.M. and Y.S. waited inside, defendant
entered and told Y.S. to sit in his truck. She left. Defendant closed the door and started kissing
Y.M., then put his hand under her underwear and rubbed her vagina on the outside. He said not to
tell anyone.
¶ 13 It was unusual for defendant to pick up Y.M. and Y.S. from Winterfield Drive. Once,
defendant repeatedly texted her that he was coming over if she was home alone. She was home
alone, but she texted back that she was not at home. He came over and repeatedly knocked on the
front door. She called Y.S. Maria and Y.S. arrived in about 10 minutes. Y.M. heard defendant
arguing with someone outside. Defendant never entered her house.
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¶ 14 Another incident happened when Y.M. was 13. She was in Perla’s bedroom in the
basement of defendant’s Second Avenue home. Feeling hungry, she left the room and saw
defendant doing laundry. She saw nobody else. Defendant motioned for her to approach him,
which she did. He started to kiss her and touch her clothing around her vagina. She moved away
from him and went upstairs.
¶ 15 Five times, defendant exposed parts of his body to Y.M. When she was 14, she was
downstairs at his house. He called for her to come upstairs to his bedroom. When she did, he
lowered his pants and underwear and told her to touch his exposed penis. He then pushed her
down onto her knees, put his penis into her mouth, and started thrusting. After about a minute, he
put her onto the bed face down. He lifted her shirt, and she felt something cold touch her back.
Defendant wiped off the cold substance and told her to leave the room. Asked whether anyone
else was in the house at the time, Y.M. testified, “I think they were all upstairs and I think [Y.S.]
was downstairs.”
¶ 16 When Y.M. was 14, she was home alone on Winterfield Drive. Defendant was scheduled
to pick her up and drop her off at his house, where Y.S. was. When he arrived, Y.M. opened the
door. Defendant entered and started to kiss her. She went to her room, but he followed her. Y.M.
got a Facetime call from Y.S., who wanted to know whether defendant had picked her up. Y.M.
responded that he was there already. While Y.M. spoke on the phone, defendant started to remove
her pants and underwear. He told her to turn off the phone and pushed her face down onto her
bed. Soon, the phone’s battery died, and the conversation ended. Y.M. heard defendant undo his
pants and felt something entering her “butt area.”
¶ 17 On a third occasion, when Y.M. was 14, she was in the first-floor bathroom of defendant’s
house. Y.S. was in the house with Jonathan. Gabriella was in her room upstairs. Maria was at
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work and Perla was not home. After Y.M. washed her hands and opened the door, defendant
entered. He closed the door, took off his pants, and gestured to her to suck his penis. She complied.
After a few seconds, there were sounds of people walking in the house. Defendant buckled his
pants, left the bathroom, and locked the door.
¶ 18 On a fourth occasion, when Y.M. was 14, she was in defendant’s living room with Perla,
Y.S., and defendant. Perla and Y.S. went out to walk the dog. Defendant started to touch Y.M.
on her clothing over her vagina. A few minutes later, the door opened, and defendant pushed her
back. Perla and Y.S. reentered through the front door.
¶ 19 On a fifth occasion, when Y.M. was 14, Maria told defendant to pick up Y.M. and drive
her to his house, where Y.S. was already. Defendant picked up Y.M. in his truck but then went in
the opposite direction of his house. He stopped the truck in an open space. He turned to Y.M.,
sitting in the front seat, and pulled down his pants and underwear. Y.M. saw his exposed penis.
He said nothing but gestured for her to make contact. She put his penis into her mouth for a few
minutes. Defendant started driving. Y.M. was about to pull away, but he told her to stay there.
Soon, she pulled away. Defendant drove a little farther, stopped the truck, and told Y.M. not to
¶ 20 The trial court admitted photographs of Luis’s house, the driveway, the garage and
backyard, and the driveway area where defendant had led her during Luis’s party. Y.M. marked
this spot. Also admitted were photos of several areas of defendant’s home on Second Avenue.
¶ 21 Y.M. testified on cross-examination that most of her cousins were at Luis’s party. Usually,
she and they were playing in the front yard. The front porch was next to the front yard. Most
people were in the backyard, where tables were set up behind the garage.
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¶ 22 The last incident of abuse by defendant occurred in the summer of 2017. Sometime after
Christmas 2017, Y.M.’s family and defendant’s family stopped seeing each other. The breakdown
was over money. One day shortly before Christmas, Y.S. called Y.M. and told her that someone
had stolen money from Elia’s home. In March 2018, Y.M. told Elia about the numerous incidents
of abuse by defendant. During the conversation, they also talked about the apparent theft and
whether defendant had been involved.
¶ 23 Y.M. felt very close to Maria, Gabriella, and Perla and somewhat less to Jonathan. She
considered Perla her unpaid babysitter when Elia was at work. Perla usually drove Y.M. around
when needed. When Y.M. lived on Second Avenue, Elia would pick her up from school and drive
her to defendant’s home. Defendant never picked her up from school, because he was always
working until either 4 p.m. or 6 p.m., usually the latter. When Y.M. arrived at defendant’s home,
her cousins would be there. Depending on business conditions, Elia got off work between 8 p.m.
and midnight, but she generally picked up her daughters afterward. Maria worked on weekday
evenings but not on weekends.
¶ 24 Shown the photographs of defendant’s house, Y.M. testified that the first floor had a
“shotgun layout,” or open floor plan, in which one could stand in one room and see most of the
other rooms. On the second floor were three bedrooms, one for defendant and Maria, one for
Gabriella, and the third for Jonathan. Perla’s bedroom was in the basement. The rest of the
basement was an open area.
¶ 25 At Luis’s house, the children played in the backyard and rarely played in the front.
Defendant’s house was two or three streets away. The incident that occurred when she was outside
with Y.S. and Anai and defendant called her inside was probably just before Halloween. As best
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she could recall, only defendant was at his house. If Jonathan was there, he was on the second
floor.
¶ 26 Y.M. told her sister about defendant’s abusive acts a few months to a year before she told
Elia.
¶ 27 When Y.M. talked with Elia about the money theft, Y.M. became upset because people
were blaming defendant. Elia blamed defendant but at one point had accused Y.M.
¶ 28 Y.M. was upset to have not seen members of defendant’s family since the breakup. She
missed defendant and Maria and had hoped that the matter would not get as far as a trial.
¶ 29 The State next called Y.S. She testified that, before moving to Southfield Drive in Aurora
with Elia, Echeveria, and Y.M., she lived on Winterfield Drive with them. In March 2018, she,
Elia, and Y.M. spoke to the police about defendant’s alleged offenses. Since then, she had not
seen defendant, Maria, or their children until coming to court. Before March 2018, she saw them
almost every weekend, usually at their house. Other than on holidays, Elia was not usually there.
Sometimes, Y.M. and Y.S. would be in different parts of the house and not see each other.
¶ 30 At one time, when Y.S. was at defendant’s house with Maria, Y.M. phoned her from
another location and complained about defendant. Maria drove Y.S. to her home on Winterfield
Drive. When they arrived, she saw that Y.M. and defendant were outside arguing. Maria asked
defendant why he was there and told him he had no business being there.
¶ 31 Defendant frequently drove to Winterfield Drive to pick up Y.S. and Y.M. Sometimes,
when defendant dropped them off at their home, he would tell Y.S. either to wait in the car while
he went inside to use the bathroom or to go inside first because he had to talk to Y.M.
¶ 32 At times, Y.S. would communicate through Facetime. Once, while defendant was driving
Y.M. somewhere. Y.M. made a Facetime call to Y.S., who was downstairs at defendant’s house.
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Y.M. said that defendant was making her uncomfortable. Gabriella called Y.S. from upstairs, and
Y.S. left the room without the phone. When she returned, the Facetime call had ended.
¶ 33 Shortly before Christmas 2017, while the girls were in defendant’s car, he told Y.M. to stay
in the front seat while Y.S. went inside. Later, Y.S. asked Y.M. about the incident. Y.M. initially
said that defendant had wanted to talk to her about a Christmas gift but then told her something
else (counsel interjected before Y.S. could specify).
¶ 34 When Y.S. went to the police station in March 2018, she spoke with Kristin Temple with
the Department of Children and Family Services (DCFS). They discussed a SnapChat exchange
about accusations of some sort. Someone had stolen something from Y.S.’s home. Although her
family was not sure who did it, they were accusing defendant because a neighbor’s camera had
shown that his car was parked in the lot of their apartment complex for two hours while they were
not home.
¶ 35 Gabriella and Perla alternated using the basement bedroom. The first-floor plan was
basically open. Y.S.’s cousins were there most, but not all, of the time that Y.M. and Y.S. were
there. Defendant would return from work late at night.
¶ 36 Elia testified that Y.M. was born October 12, 2002, and Y.S. was born May 18, 2005. In
March 2018, after talking with her daughters, she took them to the police station. Y.M. was
nervous, afraid, and crying. Next, they went to the Child Advocacy Center.
¶ 37 In March 2018, defendant lived on Second Avenue with Maria (Elia’s sister) and their three
children. Before then, Elia worked five days a week, including some weekends, and Maria took
care of Y.M. and Y.S. at those times. Under this arrangement, Elia understood that Maria, Perla,
and sometimes Jonathan would babysit her daughters. However, at times she would drop her
daughters off at defendant’s home when she knew that only defendant would be home. Also,
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defendant would have contact with her daughters when he went to her home when she was not
there. Elia did not always know in advance when defendant would go to her house while her
daughters were home alone.
¶ 38 Sometime in 2017, Elia and Maria got into a dispute about accusations relating to money
belonging to Echeveria that someone had stolen from Elia’s home in November or earlier that year.
Elia might have asked Y.M. about the money, but she never accused her of stealing it. She did not
know of Y.M. posting anything on social media about the matter. After Maria found out that Elia
had accused defendant of the theft, Maria and Y.M. were still close and talking to each other.
During a conversation about the money theft, Y.M. told Elia about defendant’s acts of abuse.
Later, Elia told police investigator Chris Tunney that she believed that defendant had stolen the
money.
¶ 39 Defendant and Maria resided near Luis’ house. During her fifth-grade year, Y.M. also
lived within a block of Luis. At that time, Elia dropped off her daughters at defendant’s home
from Monday through Friday before going to work. Most weekdays, defendant and Maria were
at work, but their three children were home, and Elia left Perla or Gabriella in charge of babysitting
for pay. Elia picked up the children whenever she finished working, generally at 9 or 10 p.m., but
sometimes on weekends, when she got off very late, she would let them stay overnight.
¶ 40 Luis hosted parties at his home. The men usually gathered on a cement area near the garage
or a grassy area behind it. The children did not play outside in front but instead in the garage or
on the grass nearby. The garage was attached to a driveway, which ran alongside the house and
was wide enough to fit one car. Behind the house, the driveway was wide enough to side-by-side
park two or three vehicles. Elia recalled Luis holding a cotillion for his daughter. Perhaps 40
people attended, most of them outside.
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¶ 41 Before the money incident, Elia’s relationship with Maria had been good. However, Elia
and her daughters suffered from losing touch with defendant’s family. After she told Maria about
Y.M.’s accusations about defendant, Maria stopped talking to her, not the other way around.
¶ 42 Perla testified that, before moving out a year before the trial, she resided with defendant
and his family for nine years. He was her stepfather, and she had known him since she was three.
In 2008, Elia and her daughters came to Aurora. In 2011, defendant’s family moved to Second
Avenue, and Elia’s family moved to an apartment complex on the west side. For three or four
years before March 2018, Perla was working, but she saw Y.M. and Y.S. every weekend while
Elia was at work, sometimes on weekday evenings, and during holidays or family events.
¶ 43 In March 2018, Perla spoke to Tunney outside defendant’s house. Tunney told her that he
was recording their conversation. Perla told Tunney that, when she and Y.S. returned to the house
after playing with the dogs, she saw defendant and Y.M. sitting on the living room couch, three or
four feet apart. Perla did not recall telling Tunney that she saw Y.M. lying down or that she saw
defendant move away from Y.M. Perla did not confront them there, because her brother and sister
were upstairs. Instead, she called Y.M. to her bedroom downstairs and asked her whether
defendant had ever disrespected her. Y.M. said no. Perla could not recall telling the investigator
that something about the situation did not seem right or normal. Perla did not believe that
defendant had abused Y.M., but she did not know whether she told the investigator that she was
unsure on this point. She told Tunney that she wondered whether Y.M. had instigated the sexual
conduct or provoked defendant into abusing her, but Perla admitted that she was guessing.
¶ 44 Perla testified that Elia’s daughters were at her home every weekend and that defendant
would see them then. Defendant drove the girls to and from their home on Winterfield and to
stores, but only on the rare occasions when Maria and Gabriella were unavailable. On some but
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not all of these occasions, defendant would be alone with the girls, but other times Jonathan was
also there. However, Perla admitted that she told Tunney that it was normal for defendant to be
alone with the girls.
¶ 45 Perla testified on cross-examination that her family lived at Luis’s house with Elia and her
daughters from 2008 to 2011. The backyard was behind the garage and not nearly big enough for
10 children to play there. The garage driveway was wide enough for one car. Perla went to Luis’s
house for the party in honor of his daughter. About 50 or more people were there, between 10 and
20 of whom were children. Gabriella supervised the youngsters, who were always playing together
in the backyard or on the front porch. Perla identified the admitted photographs showing the
property.
¶ 46 Perla testified that, at the house on Second Avenue, the front door opened into the living
room, from which one could see the kitchen. Since 2014, Perla had worked the same job from
7:30 a.m. to 4:30 p.m., getting home by 4:45 or 5 p.m. Defendant got home at 6:30 p.m. Jonathan
came home from school at about 3:30 p.m., and Gabriella would watch him until an adult came
home. Perla’s bedroom was in the basement, and she was usually either there or in the living
room.
¶ 47 Shannon Krueger testified as follows. She was a pediatric nurse practitioner whose duties
included conducting sexual-assault examinations. On April 12, 2018, she examined Y.M., who
told Krueger that her uncle had sexually abused her. A physical exam revealed nothing abnormal,
which neither confirmed nor negated possible sexual abuse. Lab test results were also negative.
¶ 48 Maria testified on direct examination as follows. Defendant was her husband and Elia was
her sister. In March 2018, Elia and the police told her of the allegations against defendant.
Defendant was in Mexico at the time. She sent him money so that he could return home early. In
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the three or four previous years, she had been in regular contact with Y.M., as she and Y.S. were
at her house every weekend. She also saw them at family gatherings but seldom on weekdays. On
some weekends, defendant and Y.M. were both at the house. Defendant picked up Y.M. and Y.S.
when Maria and Gabriella were unavailable. Between 2015 and 2108, when Y.M. and Y.S. came
to her house, they never slept over. Previously, they sometimes slept over in the living room.
¶ 49 Maria recalled that, in December 2017, Y.S. was at defendant’s house and asked Maria to
drive her home. Maria did so and, when she arrived, defendant was sitting in his truck in the
parking lot. Y.M. was not outside. Maria asked defendant why he was there. He told her that Y.M.
had called him and asked him to drive her to his house, where his sister was at the time. Maria
and defendant drove back home, but Y.M. and Y.S. stayed at their home. Arriving home, Maria
asked defendant why he had been at Y.M.’s home. She testified that they did not have an argument
and did not recall having told an investigator they had. Maria told defendant, “[D]on’t do good
things that look bad,” because he had not told her in advance that he was going to Y.M.’s home.
She was not concerned that defendant had done something inappropriate at Y.M.’s home.
¶ 50 Tunney testified that, in March 2018, she became the primary investigator into Y.M.’s
allegations. She contacted defendant and members of his family. On March 30, 2018, she spoke
with defendant and Jonathan after they left their home. Defendant told her that he would come in
for an interview that afternoon, but he did not appear, and she was unable to locate and contact
him. On April 5, 2018, Tunney spoke to Perla. Perla told her that she once returned from walking
the dog and saw defendant sitting next to Y.M., who was lying on the couch. Perla told Tunney
that it did not look right to her and that she asked Y.M. whether defendant had been touching her.
¶ 51 Flora Amezcua testified that she worked for DCFS and investigated reports of neglect and
abuse. In May 2018, she recorded an interview with Maria. Maria told her about her confrontation
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with defendant outside Y.M.’s home. She said that, after they got home, she told him that he had
“better not have been doing anything stupid” at Y.M.’s home. When Amezcua asked Maria why
she said that, she replied that she “didn’t trust anyone.”
¶ 52 The State rested. The trial court granted defendant directed findings on counts II, III, VII,
VIII, and IX. In denying directed findings on the remaining counts, the court explained that there
was sufficient evidence that (1) in his living room, defendant placed his mouth on Y.M.’s vagina
(count I); (2) defendant placed his hand over Y.M.’s clothing covering her vagina (count IV); (3)
in his bedroom, defendant placed his penis into Y.M.’s mouth (count V); and (4) in his bathroom,
defendant placed his penis into Y.M.’s mouth (count VI).
¶ 53 In defendant’s case, Luis testified that he was the brother of Elia and Maria. In May 2015,
Luis hosted a cotillion for his daughter at his home on Benton Street. He held the party between
4 and 11 p.m. in the garage and nearby patio. Including Maria and defendant, 40 to 50 people
attended. Luis’s nieces and nephews attended and played in front of the house, away from the
adults. The children could not play in the backyard, because there was a fence with a little path
There were perhaps three cars in the driveway, which was clearly visible from the attached patio
and garage. Luis was present most of the time, greeting guests. At no time did Luis see defendant
alone with any of his (Luis’s) nieces during the cotillion. Most of the time, Luis saw defendant
close to him.
¶ 54 Jonathan testified as follows. He was 19 years old. When in middle school and high
school, he usually came home at about 3:30 p.m. and would be alone for an hour or two until either
Gabriella or defendant came home. He and Y.M. attended the same middle school, and Y.S.
attended a school near his house. The three arrived at about the same time as he did. He spent
time with them in the living room or his bedroom, where he always kept the door open. Gabriella
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was usually home, but Maria generally came home much later, and Perla was living elsewhere at
the time. Jonathan often went to the park with Y.M. and Y.S. and sometimes Gabriella. He never
saw anything troubling from defendant. Defendant always came home tired and did not unduly
disturb Jonathan.
¶ 55 During winter vacation in 2017-2018, he helped defendant remove a carpet from his home
and install wood flooring. They threw away the carpet in a dumpster at Elia’s apartment complex.
¶ 56 Gabriella testified that defendant was her stepfather. Between 2013 and 2018, she resided
in his Second Avenue house. After graduating from high school in 2014, she did not work outside
the home except to babysit Y.M. and Y.S. Elia paid her about $120 a week to babysit. On
weekdays, she usually babysat between 4 p.m. and 9 or 10 p.m., when she would drive them home,
or Elia would pick them up. On weekends, it could be any time. Maria was not home on weekdays
when the girls were there, because she worked very late. Monday through Saturday, defendant
came home from work at 6 p.m. Perla sometimes came home by 5:30 p.m. and occasionally visited
her boyfriend in the evening.
¶ 57 Gabriella stopped caring for her cousins after moving to Winterfield Drive in 2016. Since
the accusations against defendant, she had not spoken to them. Her cousins never accused her of
wrongdoing, but they accused a family member of stealing money from Elia’s home. In response
to the allegation, Gabriella went on SnapChat in March 2018 and posted, “[Y.M] and [Y.S.], don’t
accuse my dad of stealing money when I have proof that he did not ***.”
¶ 58 Before Elia’s family moved to Winterfield Drive, there were times when Y.M. was over at
defendant’s house while he was there. After the move, Gabriella stopped babysitting them, but
they continued to come over. Sometimes, defendant was there too. However, Gabriella did not
believe that defendant picked the girls up from their home more than twice.
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¶ 59 Defendant testified on direct examination as follows. Between 2015 and 2018, he resided
on Second Avenue and worked six days a week, finishing at 6 p.m. In March 2018, when he was
in Mexico, Maria told him about Y.M.’s accusations, and he decided to cut his trip short and return
the next day. When he returned, he stayed at his house and went to work as usual. When he
encountered the detective in the parking lot, defendant told her that he could go to the police station
that afternoon but later decided not to, because it would be better to hire an attorney.
¶ 60 Defendant never touched Y.M. on her vagina, used his fingers on her vagina, or put his
penis into her mouth. Asked whether he ever exposed himself to her, he testified, “I have never
touched [Y.M.].” Asked, “Were there times [when he was] alone with [Y.M.],” he testified, “No.”
When he gave Y.M. a ride, it was because she had asked for a ride, and Y.S. went along also.
¶ 61 In December 2017, defendant drove to Y.M.’s house because she called; he asked her why
she did not get a ride with Maria or Gabriella, and she responded that nobody was answering her
calls. When defendant arrived at Y.M.’s home, he called to tell her he was outside. In a few
minutes, Maria showed up. She and defendant did not argue.
¶ 62 Shortly before Thanksgiving 2017, defendant heard through Maria’s mother that he had
been accused of stealing money from Elia’s home. Between Thanksgiving and March 2018, he
removed the carpeting from his house. At Elia’s invitation, he discarded the carpeting in dumpsters
outside her apartment complex.
¶ 63 Defendant never broke into Elia’s home, never tried to touch Y.M. in any sexual way in
Elia’s home, never invited Y.M. into his bedroom, and never took her to his basement.
¶ 64 Defendant never asked Y.M. for help reading English-language newspapers; if he needed
help, he would have asked Perla. Y.M never read any newspapers to him. He never asked her to
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come to his bedroom to help him with anything. When Perla saw him on the living room couch
with Y.M., he had not touched Y.M. At times in the past, he had hugged Y.M.
¶ 65 Defendant rested. The State put on no rebuttal.
¶ 66 The trial court found defendant guilty of the four remaining charges. The court explained
as follows.
a) Count I was supported by Y.M.’s testimony that, when she and Y.S. were staying overnight
at defendant’s house, she saw that her pants and underwear had been pulled down and that
defendant’s mouth was on her vagina.
b) Count IV, which alleged that defendant placed his finger on Y.M.’s sexual organ, was
supported by “evidence that this happened more than once.” However, the court
specifically referenced the incident at Luis’s outdoor party—Y.M. testified that defendant
rubbed her vagina over her clothes, albeit only for a few seconds until someone called for
Y.M., and she left. The court noted the evidence that numerous people were present in the
area, but it found that the incident happened as Y.M. described it.
c) Count V, which alleged that defendant placed his penis into Y.M.’s mouth, was supported
by Y.M.’s testimony that, when she was downstairs at defendant’s house, he called her up
to his bedroom, exposed himself, pushed her down, and placed his penis into her mouth.
In addition, the court noted that Y.M. testified explicitly about what happened before,
during, and immediately after the act of penetration.
d) Count VI, which alleged conduct similar to count V, was supported by the evidence that,
while Y.M. was in the first-floor bathroom of defendant’s house, he entered the room,
closed the door, and placed his penis into her mouth. He stopped after a few seconds and
left because he heard other people walking in the house.
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¶ 67 The court explained more generally that, having observed Y.M., defendant, and the other
witnesses testify, it found that “[Y.M.] was credible in her testimony.” Y.M. gave “very detailed
accounts” of the incidents, was “straightforward on the stand,” and “appeared in court to be sad to
be [there].” She was sad that defendant had been accused of stealing money, and she had not
thought that the matter would end up in court. She “had a very specific memory regarding what
happened at each incident she described.”
¶ 68 Further, there was corroboration for Y.M.’s testimony about the bedroom incident. Y.M.’s
testimony that she felt something cold on her back was evidence that defendant had ejaculated on
her after the act of penetration. The court continued, “And with a girl of that age, unless that had
actually happened to her, I don’t know why she would be able to talk about that.”
¶ 69 By contrast, “defendant’s testimony was not particularly credible.” Moreover, there were
ample opportunities for him to commit the charged acts, as Maria was not around on weekdays
until 10 p.m. and Y.M. and Y.S. were at his home on many weekends while Elia was working.
¶ 70 After a hearing, the trial court sentenced defendant to consecutive prison terms of four
years on each of counts I, V, and VI and three years on count IV, for an aggregate sentence of 15
years. He timely appealed.
¶ 71 II. ANALYSIS
¶ 72 On appeal, defendant contends that the evidence was insufficient to prove him guilty
beyond a reasonable doubt of any of the offenses of which he was convicted. Defendant contends
generally that Y.M.’s testimony was uncorroborated by other witnesses or any physical or medical
evidence. He contends more specifically that her account of each incident on which a conviction
was based was so inherently implausible that the trial court could not reasonably find him guilty.
The State responds that the trial court properly found Y.M. credible and defendant not credible
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and that, although corroborating evidence was not strictly needed, there was substantial evidence
that defendant had ample opportunity to commit each offense.
¶ 73 Initially, we set out the basic principles of our review. When faced with a challenge to the
sufficiency of the evidence, we ask only whether, after viewing all of the evidence in the light most
favorable to the prosecution, any rational fact finder could have found the elements of the offense
proved beyond a reasonable doubt. People v. Ward, 154 Ill. 2d 272, 326 (1992). The fact finder
is responsible for determining the witnesses’ credibility, weighing their testimony, and deciding
the reasonable inferences to be drawn from the evidence. People v. Hill, 272 Ill. App. 3d 597,
603-04 (1995). It is not our function to retry the defendant. People v. Lamon, 346 Ill. App. 3d
1082, 1089 (2004).
¶ 74 Here, the court convicted defendant of criminal sexual assault (720 ILCS 5/11-1.20(a)(3)
(West 2014)) (counts I, V, and VI) and aggravated criminal sexual abuse (id. § 11-1.60(b)) (count
IV). A person is guilty of the former as charged here if he commits an act of sexual penetration,
he is a member of the victim’s family, and the victim is under 18 years of age (id. § 11-1.20(a)(3)).
A person is guilty of the latter as charged here if he commits an act of sexual conduct (see id. § 11-
1.50) and the victim is under 18 years of age and a family member (id. § 11-1.60(b)).
¶ 75 Defendant does not dispute that the testimony of Y.M., if credible, proved all the elements
of his convictions. He argues, however, that her testimony was uncorroborated and so inherently
implausible that the trial court exceeded its prerogative in finding him guilty of any offenses.
Defendant makes both specific attacks on the evidence for each conviction and general attacks on
the evidence as a whole. We consider these arguments in turn.
¶ 76 On count I, defendant argues that Y.M.’s account of the incident was implausible. He
reasons that it was “extremely unlikely” that he would have attempted to remove Y.M.’s pants and
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underwear and touch her with another person nearby who could be roused from her sleep by his
actions. However, improbability does not create reasonable doubt if the testimony, viewed in the
light most favorable to the prosecution, is sufficient to establish the offense. Y.M.’s testimony on
count I was straightforward, clear, and consistent, and the trial court credited it. We note that
defendant acted at night—when other household members were asleep—in a room occupied by
two minors, both of whom, even if they awoke, could be intimidated or embarrassed into keeping
silent about the act. The evidence was sufficient on count I.
¶ 77 Regarding count IV, defendant contends that, given the setup and number of guests at the
cotillion Luis hosted, it was improbable that there would have been no witness to his alleged act
of rubbing Y.M.’s vagina over her clothes. However, Y.M. testified that the conduct occurred at
Luis’s house during a family barbecue, not a cotillion. In addition, the trial court noted the
evidence regarding the presence of numerous people but found that the incident happened as
described by Y.M. The trial court found Y.M. to be credible and defendant to be otherwise.
Accordingly, the evidence was sufficient on count IV.
¶ 78 On count V, defendant’s challenge appears to conflate (a) the bedroom incident on which
the trial court relied with (b) either of the incidents in the basement and (c) the Facetime incident,
the latter of which was not the basis of any conviction. In any event, the evidence was sufficient,
as the trial court noted that Y.M. not only testified clearly and consistently about the encounter but
did so in detail, including describing defendant’s ejaculation onto her back.
¶ 79 Finally, on count VI, defendant contends in a general way that the circumstances made
Y.M.’s testimony implausible. Still, the trial court could consider that (1) the criminal act occurred
inside a closed bathroom in the basement, away from where most of the family (if at home) would
be present, (2) defendant stopped after only a few seconds because he heard other people walking
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nearby, and (3) there was nothing so inherently implausible about this account that the trial court
could not find it proven beyond a reasonable doubt.
¶ 80 We turn to defendant’s more general attacks on the evidence. He contends that Y.M.’s
testimony was uncorroborated by other witnesses or by any physical or medical evidence.
However, as defendant concedes, the factfinder may find guilt beyond a reasonable doubt based
on the positive testimony of a single credible witness. People v. Smith, 185 Ill. 2d 532, 541 (1999).
Our supreme court has long dispensed with the special rule that, in a sexual-offense trial, the
victim’s testimony is insufficient unless it is “clear and convincing or substantially corroborated.”
People v. Schott, 145 Ill. 2d 188, 202 (1991). The trial court found Y.M. credible, and her
testimony was positive and consistent on the charges on which defendant’s convictions were
based.
¶ 81 Defendant contends second that Y.M.’s testimony was insufficient because she had a
motive to accuse defendant falsely, i.e., to get revenge against him for stealing the money from
Elia’s home. Defendant notes that Y.M. told Elia about defendant’s abusive actions during a
conversation that started on the subject of the alleged theft. Defendant’s argument did not sway
the trial court, and we may not substitute our view of the evidence (or defendant’s view of it) for
that which the trial court took. Moreover, there was evidence from both Y.M. and Y.S. that Y.M.
told her sister about the incidents months before the March 2018 conversation with Elia. Further,
Y.M. testified that she had been close to defendant and regretted being separated from him, and
Elia testified that, during the March 2018 conversation, Y.M was upset to the point of crying.
Defendant has not persuaded us to disturb the trial court’s exercise of its fact-finding prerogative.
¶ 82 III. CONCLUSION
¶ 83 For the foregoing reasons, we affirm the judgment of the circuit court of Kane County.
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¶ 84 Affirmed.
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