People v. Borrego

2025 IL App (4th) 240649-U

• Court: Appellate Court of Illinois
• Decided: February 21, 2025
• Docket: 4-24-0649
• Status: Unpublished

Opinion

NOTICE 2025 IL App (4th) 240649-U This Order was filed under FILED Supreme Court Rule 23 and is NO. 4-24-0649 February 21, 2025 not precedent except in the Carla Bender th limited circumstances allowed 4 District Appellate IN THE APPELLATE COURT under Rule 23(e)(1). Court, IL OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) McLean County GENO A. BORREGO, ) No. 22CF225 Defendant-Appellant. ) ) Honorable ) J. Jason Chambers, ) Judge Presiding.

JUSTICE VANCIL delivered the judgment of the court. Justices Knecht and Cavanagh concurred in the judgment.

ORDER

¶1 Held: The appellate court affirmed defendant’s convictions for two counts of criminal sexual assault (720 ILCS 5/11-1.20(a)(2) (West 2020)), finding the evidence was sufficient to convict, the trial court did not abuse its discretion in admitting evidence of defendant’s propensity to commit sexual assault, and the prosecutor did not engage in a pattern of intentional misconduct that required reversal.

¶2 A McLean County jury found defendant, Geno Borrego, guilty of two counts of

criminal sexual assault (720 ILCS 5/11-1.20(a)(2) (West 2020)). Defendant appeals his

convictions, arguing (1) the evidence was insufficient to convict, (2) the trial court erroneously

allowed a witness to testify to a prior, uncharged sexual assault, and (3) the State committed

various acts of prosecutorial misconduct.

¶3 We affirm.

¶4 I. BACKGROUND

¶5 In March 2022, the State charged defendant with two counts of the criminal sexual assault of S.A. Count I alleged that defendant, “knowing that S.A. was unable to give consent,

knowingly committed an act of sexual penetration with S.A. in that the defendant placed his penis

in the vagina of S.A.” Count II alleged that defendant, “knowing that S.A. was unable to give

consent, knowingly committed an act of sexual penetration with S.A. in that the defendant placed

his finger in the vagina of S.A.” Defendant hired private counsel and pleaded not guilty.

¶6 Defendant’s first jury trial began in August 2023. A.K. testified she and defendant

dated for three years, but their relationship ended before December 2021. A.K. was not asked if

defendant ever sexually assaulted her, and she did not testify that he did. The jury was unable to

reach a unanimous verdict, and the trial court declared a mistrial.

¶7 Defendant’s private attorney withdrew, and defendant represented himself for the

remainder of the proceedings before the trial court. Before defendant’s second trial, the State filed

a notice of its intent to introduce testimony from A.K. that defendant sexually assaulted her in

March 2019. The State provided a police report describing A.K.’s interview with police after the

first trial. A.K. told police that in March 2019, defendant penetrated her with his penis, despite her

repeatedly telling him to stop. She said that, when she talked to defendant about the rape, he told

her that if she “really felt that way,” she should break up with him. The State sought to introduce

evidence of defendant’s prior sexual assault at trial, arguing his assault of A.K. was similar to his

assault of S.A. because both women were close to defendant’s age, he had known them “for a

lengthy period of time before the assault,” the assaults occurred in a bedroom on a bed, and after

each assault, defendant tried to prevent each woman from accusing him. Defendant moved to

suppress the evidence, arguing that the two allegations were dissimilar. He also argued that in

2022, A.K. told police, “I never saw [defendant] do anything like force himself on anyone,”

contradicting her assault allegation.

-2- ¶8 On the first day of the second trial, the trial court ruled that A.K.’s testimony about

the previous sexual assault was admissible. Comparing the assaults of A.K. and S.A, the court

found “that there are similarities that weigh in favor of the State.” It also found that less than three

years passed between the assaults, so “there’s not a huge amount of time between them.” Finally,

the court acknowledged A.K. possibly made inconsistent statements, but this did not render the

testimony inadmissible, and defendant could impeach A.K.

¶9 During opening arguments, defendant told the jury, “I’m not going to deny the

DNA found on [S.A.’s] vagina was mine, because it was.” But, he argued, the State would not be

able to prove beyond a reasonable doubt that his interaction with S.A. was nonconsensual.

¶ 10 S.A. testified that on December 9, 2021, she and some other students went out to

celebrate the end of the semester. At the first bar, she had a couple of vodka lemonades and a

couple of shots over the course of an hour or two. They went to another bar, where she met some

former friends from high school, including defendant. She drank a vodka lemonade, more shots,

and a “Vegas bomb.” They left the bar sometime between 12:30 a.m. and 1 a.m. Someone

suggested that they should go to her apartment, and she was drunk, so she agreed.

¶ 11 S.A. explained that, after they reached her apartment, “At that point, it’s all really

kind of flashes of memory for me.” She drank hard seltzer and smoked some marijuana. She

testified that she ran to the bathroom to throw up. Defendant came to the bathroom, rubbed her

back, held her hair, and brought her some water. She testified that defendant carried her out of the

bathroom over his shoulder and put her in bed. In her room, she felt sick, and she thought

“[e]verything was spinning.” Then, her roommate, Muriel Bean, helped her put on pajamas and

told everyone to leave.

¶ 12 S.A. testified that her next memory was of defendant coming into her room and

-3- pushing against her, telling her to move over. She told him to go to sleep on the couch. She testified,

“After that, I remember being touched. And I’m not sure if it was like shock or all the substances,

but I feel like this isn’t real. Like I kind of thought I was dreaming. And I remember just kind of

being rubbed and then something entering my vagina.” She felt she was in a “daze,” it was “like

dreaming,” and she felt like she “couldn’t move.” She explained, “I believe he was fingering my

vagina, and then, after that point, he put his penis inside my vagina, and that is when I kind of

came out of that shock state and turned around and realized what was really happening.”

¶ 13 S.A. testified that defendant jumped up, and she said, “What were you doing?”

repeatedly. She told defendant, “[Y]ou were just raping me.” According to S.A., defendant

answered with a lot of short sentences, like “no” or “I wasn’t,” trying to prevent her from

screaming. S.A.’s roommate came and told defendant to leave. Eventually, Bean made defendant

leave the apartment and called S.A.’s parents, who came to get her. They went to the hospital to

get a rape kit. S.A. was offered a toxicology test, but she refused because she did not believe she

was given any “date rape drugs.”

¶ 14 Defendant cross-examined S.A. She testified that she started drinking around 6 p.m.

Defendant asked, “Just for clarification, you drank two vodka lemonades, one green tea shot at

Pub, one vodka lemonade, two green tea shots and one Vegas bomb at Killarney’s and half a can

of Truly seltzer at your apartment, correct?” She answered, “Something around that, yes.” She also

testified she took a couple of hits of marijuana.

¶ 15 Muriel Bean, S.A.’s roommate, testified next. She stayed in on December 9, 2021,

and she did not drink any alcohol. She explained that S.A. came home around 2 a.m. with about

10 to 15 men, and she was very drunk. Later, Bean saw S.A. in her room throwing up into a trash

can, with defendant there. She went in, kicked defendant out, and dressed S.A. for bed. S.A. then

-4- “passed out” on the bed. Bean testified she made everyone leave the apartment. At first, Wyatt

Steidinger and defendant stayed, but Bean drove Steidinger home. Defendant rode with them but

returned to the apartment with Bean, saying he would sleep on the couch.

¶ 16 After they returned to the apartment, Bean tried to sleep. Later, she heard “footsteps

and a door open in the hallway.” About 10 minutes later, she heard murmuring, then she heard

S.A. say, “[D]o you realize you just raped me?” Bean immediately got up, went to S.A.’s room,

and made defendant leave. At first, defendant would not leave, but she yelled and pushed him. As

Bean was trying to get defendant out of the apartment, S.A.’s ex-boyfriend called her to ask what

had happened.

¶ 17 On cross-examination, Bean agreed that she heard a door open and footsteps, and

this could only have been S.A. coming out of her room. She estimated she got to S.A.’s room

within 30 seconds or a minute of hearing S.A. say defendant raped her. On redirect, Bean

confirmed that she could not tell whose footsteps were in the hall, and they might not have been

S.A.’s. She assumed someone was going to the bathroom, and she did not know if S.A. came out

of her room or not. On re-cross-examination, she admitted that she had told a detective she heard

S.A.’s door open, then footsteps, and she thought S.A. was walking to the bathroom. Defendant

asked if it could only have been S.A. leaving her room, and she answered, “Unless someone opened

it from the outside.” Defendant pointed out that she heard footsteps first, then the door open, and

he asked if it could only have been S.A. coming out of her room, and Bean agreed. On redirect,

the prosecutor asked, “Could someone have gotten to the door and opened it without you hearing

them?” Bean answered, “Um, it’s a possibility.”

¶ 18 Joel Whittle testified he had known defendant for 14 to 15 years, and he dated S.A.

in high school. The morning of December 10, 2021, defendant called, but he was not speaking,

-5- just breathing. Eventually, defendant told him that S.A. “made the accusations.” Whittle called

Bean, and he heard S.A. crying in the background. Whittle called defendant back, and defendant

told him nothing happened. Later, Whittle talked to defendant a third time. According to Whittle,

this time defendant told him, “We did stuff. It was mutual.” Whittle claimed defendant told him

that he carried S.A. from the bathroom to the bedroom because she could not walk, and “he waited

for her to sober up.” He denied penetrating her with his penis, and he claimed he only “fingered

her.”

¶ 19 Whittle also provided police with his messages with defendant. Defendant had

messaged him the following:

“I understand but Muriel wasn’t even there and apparently [S.A.] was on

too many drugs and alcohol to remember what clearly happened. She kissed me

back. If she would have told me to leave then I would have. She seemed for it at

first till I fingered her, then she kinda looked like she was going to sleep so I stopped

and shook her and said [S.A.] do you still want to do this, and she said get out and

if my goal was to rape her I would have covered her mouth or something and kept

going, but instead I apologized put my pants on, and was trying to understand why

she was yelling at me to get out, then Muriel came in and told me to leave so I did.

Idk what a rape kit will have on it, but my penis never entered that womans body.”

Whittle responded, “Bro your story changed again Lol Just stop talking.” Whittle then deleted the

account used for this exchange. On cross-examination, defendant asked, “Did you ever think that

the reason I was withholding information from you is because you were my best friend and

[S.A.] was your ex-girlfriend?” Whittle responded, “That didn’t cross my mind.”

-6- ¶ 20 A.K. testified she and defendant dated from October 2018 to September 2021. On

December 9, 2021, she received a message from defendant with a picture of S.A. and him at a bar.

Later, she received a video from defendant of him holding S.A.’s hair while she gagged over a

toilet. A.K. testified that the next day, defendant messaged her that he did something he regretted.

Screenshots of those messages were admitted into evidence. She asked if he “hook[ed] up” with

S.A., and he replied:

“No. I didn’t even get that drunk, but she did and I brought her water and

was helping her and she came on to me and we kissed and stuff, then she randomly

yelled at me to get out and I did and then she told Muriel I raped her. I have no clue

what to think. I would never do something like that, and I shouldn’t have put myself

in that position. Me and you have had our differences, but I would never force

myself on anyone. I was supposed to go home with Cam, but he was fucked up on

cocaine and booze and just left me there.”

Defendant also texted, “Everything was mutual at first and as soon as she said get out I left. I’m

not a raper. I did nothing she didn’t want to do.”

¶ 21 A.K. testified that in February 2022, she talked to a detective. The detective asked

if defendant ever forced himself on her sexually. She testified that she did not answer truthfully

because she had no proof, and she thought no one would take her seriously because she and

defendant were in a relationship. The prosecutor and A.K. had the following exchange:

“Q. In early 2019 when you were still in a relationship with the defendant,

did he climb on top of you while you were telling him to stop and not to touch you?

A. Yes.

Q. Did he pull your pants down and penetrate your vagina with his penis?

-7- A. Yes.

Q. Were you telling him to stop and not touch you?

Q. Did that stop the defendant?

A. No.

Q. Did this all happen in your bedroom and on your bed?

Q. What was his reaction when he brought the incident up with you?

A. He told me if I really believed that he did that, then I would just break

up with him.”

¶ 22 On cross-examination, A.K. acknowledged that she first alleged defendant

assaulted her on August 11, 2023. Defendant asked why she changed her story, and she answered,

“Because I said could this actually be used in court,” and because she did not think anyone would

believe her. Defendant asked, “What caused you to come forward with the accusation?” She

answered, “My mom knew because she confided to the lawyer the last time we were here.”

Defendant asked if she remembered telling police, “I never saw [defendant] do anything like force

himself on anyone,” and she answered, “Yes.” She also admitted that she previously testified under

oath but had said nothing about defendant sexually assaulting her. On redirect, she confirmed that

the situation with defendant was “difficult” to talk about, and she was not asked about it the last

time she testified.

¶ 23 Cameron Dawson testified he had been friends with S.A. and defendant since high

school. He went out with defendant on December 9, 2021, but he was the designated driver, so he

was not drinking at the bars. He went to S.A.’s apartment, and about 10 other people were there.

-8- He explained, “As [S.A.] continued drinking, she continued to get more intoxicated, continued to

be social and stuff until she got to the point where she was black out drunk.” He was asked, “How

could you tell she was black out drunk?” and he answered, “She was throwing up a lot and

eventually passed out on her bed sleeping or unconscious.” Dawson heard S.A. throwing up in the

bathroom, and he saw defendant carry her from the bathroom to the bedroom. Eventually, Bean

told everyone to leave. Everyone left except defendant, even after Dawson tried to get him to leave,

because he was defendant’s ride. Defendant told Dawson that he wanted to stay to take care of

S.A., and Dawson told him that was not necessary.

¶ 24 On cross-examination, defendant asked if Dawson remembered defendant saying

he would not leave with Dawson because Dawson was drunk and high on cocaine. Dawson denied

that happened and denied ever taking cocaine. He also denied sending defendant any message that

night. Defendant showed a document to Dawson and asked if it was his “Snapchat.” Dawson

acknowledged his name was on the page and the page was dated December 10, 2021. He also

acknowledged it had a message saying that he was going to get some “Coke.” But, Dawson

explained, “I don’t recall saying that. This looks fake to me.” He added, “It looks very

photoshopped, edited and fake.” Dawson denied ever telling defendant he was going to get

cocaine, and he denied ever using cocaine. He testified that if he ever sent a message about “Coke,”

it was probably “a Coke from McDonald’s.” He added that the document he was shown did not

provide any time the message would have been sent.

¶ 25 Wyatt Steidinger testified that, at S.A.’s apartment, she was “very drunk,” and he

could not understand her when he talked to her. He heard her throwing up, and he saw defendant

in her room, holding her hair. At some point, Bean told everyone to leave. Steidinger stayed

because he did not have a ride home. Eventually, Bean and defendant drove him home.

-9- ¶ 26 Sergeant Jason Hollenkamp, with the Normal Police Department, testified he

collected a buccal swab from defendant. He also listened to defendant’s phone calls from the

McLean County Detention Center. Recordings of some of the calls were played for the jury. In

one recording, defendant said, “I’ll probably lose if I fight it in here,” and “I can make my own

evidence as to why if I’m out there, but in here I can’t do nothing.”

¶ 27 Randi Morris, an emergency room nurse, was qualified as an expert nurse and

sexual assault nurse examiner, without objection. She testified she examined S.A. on December

10, 2021. She collected DNA evidence from S.A. This included both an internal vaginal swab and

an external vulval swab. The sexual assault evidence collection kit was admitted into evidence.

¶ 28 Jennifer Aper, a forensic scientist for the Illinois State Police, was qualified as an

expert in forensic examination of bodily fluids staining and DNA analysis, without objection. She

explained “Y-STR” DNA testing to the jury. When asked what conclusions can be drawn from

such testing, she testified:

“I compare DNA from evidence to DNA from known standards from the

individuals involved in the case. If the DNA is consistent between the known

standard from the individual and the evidence, I can say that the person is included

as a possible contributor. If the DNA is not consistent, then I can say that the person

is excluded as a possible contributor.”

When asked to explain the significance of an “association” between evidence and the DNA from

a known standard, she testified:

“When somebody is included as a possible contributor, we need to figure

out a way to give what kind of weight to that. To do this, we search the profile and

data base and that will tell us how many people in the population could have

- 10 - contributed that profile. That will let you know how common in the population that

profile is or how rare in the population that profile is.”

¶ 29 Aper then detailed the results of her analysis of the DNA recovered during S.A.’s

examination. She compared the DNA from the vaginal and vulval swabs to the sample collected

from defendant. For the DNA on the vulval swab, she explained, “[Defendant] was included as a

possible contributor of that partial haplotype,” and, “that haplotype is expected to occur in

approximately 1 in 1,300 White, unrelated males, 1 in 2,300 Black, unrelated males, or 1 in 1,200

Hispanic, unrelated males.” For the DNA on the vaginal swab, she concluded defendant was a

“possible contributor.” She further explained, “This haplotype would be expected to occur in

approximately 1 in 1,200 unrelated, White individuals, 1 in 1,000 Black, unrelated individuals, or

1 in 660 Hispanic, unrelated individuals.” She confirmed these tests were consistent with vaginal

penetration, explaining that with an “internally collected vaginal swab [she] wouldn’t expect DNA

to be present just from casual contact with people. So, [she] believe[d] it’s most likely from some

type of vaginal penetration, something that contained DNA, either a finger or penis or maybe with

a sex toy that could contain male DNA.” The report was admitted without objection. After her

testimony, the State rested.

¶ 30 Defendant testified in the narrative. He explained that he went out that night and

encountered some people from high school, including S.A. They went to her apartment, and

Dawson drove. There, they played drinking games, and someone brought out marijuana, but he

did not smoke anything. He testified he saw Dawson leave, and he was supposed to be defendant’s

ride. Defendant testified that he messaged Dawson, asking where he was, and Dawson responded

that he was going to get cocaine. S.A. went to the bathroom and kneeled like she might throw up,

but she never did. Defendant held her hair and brought her water. He testified Dawson came back

- 11 - at some point and asked defendant if he was ready to go, but Dawson did not look like he could

drive, so defendant rejected his offer for a ride.

¶ 31 Defendant further testified that S.A. got up, brushed her teeth, then exited the

bathroom and went to her room. Defendant went back to the kitchen and played cards. At some

point, Bean came out and told people to leave. Bean drove Steidinger home, and defendant rode

with them. When they got back, he sat on the couch, and he heard a door open. He saw S.A. going

from the bathroom to the bedroom. He decided to ask her for a blanket, but when he got to her

room, she had left the door open. He testified that he asked for a blanket, and she said, “Come grab

it.” He testified that they started talking, he moved in to try to kiss her, and she kissed him back.

He thought they might have sex, so he got up and shut the door. He took his shirt and pants off,

and he took her pants off. Defendant testified that he rubbed her clitoris, but he denied any

“penetration” with his finger. After a minute or two, she put her arm over her face, and he stopped.

He asked if she wanted to continue, and she said he could just go. He got out of bed and put on his

pants and shirt. S.A. was crying, defendant asked what was wrong, and she yelled at him to get

out. Bean entered the room, and S.A. said defendant raped her. Defendant said that was not true,

but Bean pushed him out, and he left.

¶ 32 On cross-examination, defendant denied telling Whittle that he carried S.A. to her

room. The prosecutor then asked defendant about the testimony from other witnesses that

contradicted his account. The following exchange took place:

“Q. Why are you the only person saying that [S.A.] didn’t get sick?

A. Because I was the only one who was actually right there.

Q. [S.A.] was there, and she remembers throwing up a lot.

A. I don’t know.

- 12 - Q. Why are you the only person saying that [S.A.] didn’t accuse you of

raping her until after [Bean] came into the room?

A. I don’t know.”

¶ 33 During closing argument, the prosecutor discussed the DNA swabs. She reminded

the jury that Aper, the DNA expert, testified she analyzed the swabs, and that

“DNA profile consistent with the defendant’s DNA was found on both of

those DNA swabs. And the lab result from that, it’s People’s Exhibit No. 11, it was

the last of several lab reports done in this case where Jennifer Aper did the Y-STR

analysis and that was submitted into evidence. You can take that back with you to

the jury room. But here’s a cutout of that where she had typed out basically her

findings. 1B3, the internal vaginal canal swab, number of contributors, one.

Because of the Y-STR you are able to exclude the female DNA from that and

[defendant] is included. 1B4, the labia minora, number of contributors, one.

[Defendant] included as a contributor.

Furthermore, with the DNA expert’s testimony on whether or not this is

consistent with penetration, remember what she said about the fact that DNA was

found inside the vaginal canal. That, to her, that meant this was more than just

casual contact if DNA is in the vaginal canal. And that it was consistent with a

penis, a finger. She also gave the example of a sex toy that had DNA on it as well,

but more than just casual contact.”

The jury found defendant guilty on both counts.

¶ 34 Defendant filed a motion for a new trial, arguing that the State failed to prove him

guilty beyond a reasonable doubt and the prosecutor engaged in misconduct by introducing

- 13 - evidence of his assault of A.K. He also filed a motion for judgment of acquittal notwithstanding

the verdict, raising similar arguments. The trial court denied defendant’s motions.

¶ 35 At the sentencing hearing on March 25, 2024, S.A. read a victim impact statement.

Afterwards, defendant claimed that certain information in her statement was not disclosed before

trial and the State committed a Brady violation. See Brady v. Maryland, 373 U.S. 83 (1963). He

once again asked the trial court to vacate the judgment or for a new trial. The prosecutor

represented to the court that the State did not have this information before trial, and it provided

defendant everything in the State’s control. The court declined defendant’s request for a new trial,

reasoning the State did not commit a Brady violation if the information was not in its control. The

court then sentenced defendant to seven and a half years’ imprisonment on count I and seven years’

imprisonment on count II.

¶ 36 On April 2, 2024, defendant filed a motion for a new trial, repeating his Brady claim

from the sentencing hearing. That same day, he also filed a notice of appeal. The circuit clerk filed

a notice of appeal on April 12, 2024, and defendant filed another notice of appeal on April 16,

2024.

¶ 37 II. ANALYSIS

¶ 38 Defendant appeals his convictions. First, he argues the evidence was insufficient to

sustain either conviction. Second, he argues the trial court erred by allowing A.K. to testify that he

sexually assaulted her. Finally, he argues the State committed prosecutorial misconduct by

(1) asking defendant to comment on the credibility of other witnesses, (2) misrepresenting the

DNA evidence during closing argument, (3) vouching for the credibility of witnesses, and

(4) asking A.K. leading questions.

¶ 39 A. Jurisdiction

- 14 - ¶ 40 Before we reach defendant’s arguments, we must first address the State’s claim that

we lack jurisdiction. Whether the appellate court has jurisdiction is a question of law, which we

review de novo. People v. Salem, 2016 IL 118693, ¶ 11. Illinois Supreme Court Rule 606(a) (eff.

Dec. 7, 2023) states, “Appeals shall be perfected by filing a notice of appeal with the clerk of the

trial court.” However, Illinois Supreme Court Rule 606(b) (eff. Dec. 7, 2023) states:

“When a timely posttrial or postsentencing motion directed against the

judgment has been filed by counsel or by defendant, if not represented by counsel,

any notice of appeal filed before the entry of the order disposing of all pending

postjudgment motions shall have no effect and shall be stricken by the trial court.

*** This rule applies whether the timely postjudgment motion was filed

before or after the date on which the notice of appeal was filed.”

¶ 41 The State argues that defendant’s notices of appeal were ineffective. On April 2,

2024, defendant filed both a notice of appeal and a written motion for a new trial. Defendant also

filed notices of appeal on April 12, 2024, and April 16, 2024. Citing People v. Willoughby, 362

Ill. App. 3d 480 (2005), the State contends that the trial court never ruled on defendant’s written

motion for a new trial and that, under Rule 606(b), defendant’s notices of appeal were ineffective.

See id. at 482 (“[W]hen there has been no disposition of a timely posttrial motion directed against

the judgment, a notice of appeal does not vest the appellate court with jurisdiction.”).

¶ 42 The State is mistaken. Rule 606(b) requires the trial court to strike a defendant’s

notice of appeal only when the defendant files a “a timely posttrial or postsentencing motion

directed against the judgment.” (Emphasis added) Ill. S. Ct. R. 606(b) (eff. Dec. 7, 2023). Here,

defendant’s convictions were entered on November 15, 2023. Under section 116.1 of the Code of

Criminal Procedure of 1963 (Code) (725 ILCS 5/116-1(b) (West 2022)), a defendant must file a

- 15 - motion for a new trial within 30 days of the verdict. See Salem, 2016 IL 118693, ¶ 14 (“[A] motion

for new trial is timely for purposes of Rule 606 if it is filed in compliance with the deadline set

forth in the Code.”). Defendant filed his motion for a new trial on April 2, 2024, over 30 days after

the verdict. Therefore, his motion for a new trial was not timely, and Rule 606(b) did not require

striking the notice of appeal. By properly filing his timely notice of appeal, defendant perfected

his appeal, and this court acquired jurisdiction. See Ill. S. Ct. Rule 606(a) (eff. Dec. 7, 2023).

¶ 43 B. Sufficiency of the Evidence

¶ 44 Defendant first claims that the State failed to prove him guilty beyond a reasonable

doubt. “The due process clause of the fourteenth amendment to the United States Constitution

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 In re Winship, 397 U.S. 358, 364 (1970)). On

review, we ask “whether, after viewing the evidence in the light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” (Emphasis in original.) Jackson v. Virginia, 443 U.S. 307, 319 (1979); see People v.

Collins, 106 Ill. 2d 237, 261 (1985).

¶ 45 The jury found defendant guilty of two counts of criminal sexual assault. The

Criminal Code of 2012 provides, “A person commits criminal sexual assault if that person commits

an act of sexual penetration and *** knows that the victim is unable to understand the nature of

the act or is unable to give knowing consent.” 720 ILCS 5/11-1.20(a)(2) (West 2020). The Criminal

Code of 2012 defines “sexual penetration” as:

“any contact, however slight, between the sex organ or anus of one person and an

object or the sex organ, mouth, or anus of another person, or any intrusion, however

- 16 - slight, of any part of the body of one person or of any animal or object into the sex

organ or anus of another person, including, but not limited to, cunnilingus, fellatio,

or anal penetration. Evidence of emission of semen is not required to prove sexual

penetration.” Id. § 11-0.1.

Finally, “consent” is

“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.

The manner of dress of the victim at the time of the offense shall not constitute

consent.” Id.

¶ 46 In count I, the State alleged that defendant, knowing S.A. was unable to consent,

knowingly placed his penis in her vagina. In count II, the State alleged defendant, knowing S.A.

was unable to consent, knowingly placed his finger in her vagina.

¶ 47 First, defendant argues the State failed to prove he penetrated S.A. with his finger

and his penis. According to defendant, the State relied on only S.A.’s testimony and the DNA

evidence to establish penetration, and defendant claims neither S.A. nor the DNA evidence carried

the State’s burden. S.A. admitted her recollection of the night was limited to “really kind of flashes

of memory.” Regarding the DNA, defendant cites People v. Stoecker, 2014 IL 115756, and People

v. Pike, 2016 IL App (1st) 122626, and he claims that Y-STR testing cannot conclusively establish

a suspect’s DNA was present. Instead, he contends that the DNA evidence proved only that a male

in defendant’s paternal lineage could have contributed to the recovered DNA. Therefore, defendant

argues, the evidence did not prove penetration.

- 17 - ¶ 48 Defendant is clearly wrong. The credible testimony of one witness is sufficient for

a conviction. People v. Swenson, 2020 IL 124688, ¶ 36. “The weight to be given witnesses’

testimony, the witnesses’ credibility, and the reasonable inferences to be drawn from the evidence,

are all the responsibility of the fact finder.” People v. Milka, 211 Ill. 2d 150, 178 (2004). The jury’s

credibility determinations are entitled to great weight, and we will reverse a jury’s verdict only

“where the evidence is so unreasonable, improbable, or unsatisfactory as to justify a reasonable

doubt of defendant’s guilt.” People v. Smith, 185 Ill. 2d 532, 542 (1999). Here, although S.A.

admitted her memory of the night had gaps, she testified she remembered the penetration. Indeed,

defendant’s penetrating her with his penis shocked her into a greater state of awareness. Her

testimony was clear and consistent, and the jury was entitled to believe her.

¶ 49 Moreover, the jury did not consider S.A.’s testimony in a vacuum. Instead, the jury

evaluated her claim in the context of the other witnesses’ testimony and defendant’s alternative

account of the night of the assault. The State’s witnesses presented a coherent and largely

consistent narrative, refuting defendant’s testimony. Defendant appeared particularly attentive to

S.A. throughout the night and rejected the opportunity to leave the party. Dawson testified that

S.A. was so intoxicated she needed to be carried to her bed and that defendant carried her there,

refuting defendant’s claim that she walked to her room. Both Bean and S.A. testified that S.A.

shouted defendant raped her and then Bean ran to S.A.’s room, disagreeing with defendant’s claim

that S.A. accused him only after Bean arrived. The State also introduced defendant’s text

messages, in which he stated that S.A. looked like she “was going to sleep” while he touched her

and he “stopped and shook her,” further supporting the State’s narrative. While none of this

evidence proves any penetration itself, when considering whether to believe S.A. or defendant, the

- 18 - jury could properly consider the abundant evidence supporting S.A.’s account of the night over

defendant’s.

¶ 50 Indeed, in contrast to S.A., defendant was utterly unbelievable. Defendant claimed

Dawson sent him a message stating he was using cocaine, and he asked Dawson to confirm he sent

the message on cross-examination. Dawson adamantly denied this and testified he believed the

proposed message was fabricated. The State later introduced defendant’s recorded message

suggesting he intended to fabricate evidence. The State also introduced defendant’s conversations

with other witnesses immediately after the assault, in which he had inconsistent accounts of what

happened. The jury was entirely reasonable in crediting S.A.’s testimony instead of defendant’s.

¶ 51 Furthermore, the State’s DNA evidence added yet more confirmation to S.A.’s

allegations. Aper testified that DNA was found in S.A.’s vaginal canal and that “[defendant] was

included as a possible contributor of that partial haplotype.” She explained “that haplotype is

expected to occur in approximately 1 in 1,300 White, unrelated males, 1 in 2,300 Black, unrelated

males, or 1 in 1,200 Hispanic, unrelated males.” Even if Y-STR evidence cannot conclusively

establish that this defendant is the only possible individual who could have contributed the

recovered DNA, these occurrence rates prove it was highly unlikely that anyone else contributed

the DNA. Moreover, because of the DNA’s location, Aper explained, “I believe it’s most likely

from some type of vaginal penetration.” The jury could consider this in determining whether

defendant committed an act of penetration and in considering whose account was more credible.

¶ 52 Finally, the jury heard A.K. testify to defendant’s propensity for criminal sexual

assault. A.K. testified that in early 2019, defendant penetrated her vagina with his penis without

her consent, despite her telling him to stop. As explained below, this evidence was properly

admitted, and the jury could consider this evidence for “its bearing on any matter to which it is

- 19 - relevant,” including defendant’s propensity to commit criminal sexual assault. 725 ILCS 5/115-

7.3(b) (West 2022).

¶ 53 In summary, considering S.A.’s clear and consistent testimony of the penetration,

the DNA evidence indicating vaginal penetration by a male, the DNA expert’s testimony

concerning the prevalence of similar DNA profiles in the general population, the support other

witnesses provided to S.A.’s account over defendant’s, defendant’s general lack of credibility, and

the evidence of defendant’s propensity for criminal sexual assault, viewed in the light most

favorable to the State, the evidence was more than sufficient for a conviction.

¶ 54 Moving to defendant’s knowledge of S.A.’s inability to consent, defendant claims

the State failed to prove S.A. was so intoxicated she was unable to consent. S.A. admitted she

refused a toxicology test at the hospital after the assault, and the State introduced no scientific or

medical evidence to prove the amount of alcohol and marijuana she consumed rendered her unable

to consent. Defendant relies on People v. Roldan, 2015 IL App (1st) 131962, where the appellate

court reversed the defendant’s conviction for criminal sexual assault because the State failed to

prove the victim was so drunk she was unable to consent. The court explained that the State failed

to introduce “any medical evidence that [the victim] was in a blackout state as a result of her

consumption of alcohol. Similarly, there was no medical evidence presented by the State regarding

the physiology of alcohol consumption and how it may have been a factor in this case.” Id. ¶ 26.

Based on these two sentences, defendant equates this case with Roldan and urges us to reverse.

¶ 55 Roldan is easily distinguishable. There, the alleged victim testified she, the

defendant, the codefendant, and some other people were playing a drinking game. Id. ¶ 5. They

walked to a store for supplies. Id. ¶ 6. The alleged victim testified that she had trouble walking to

the store, and she and the defendant kissed at the store. She remembered arguing with the

- 20 - codefendant but nothing else from that night. She did not remember having sex with the defendant.

Id. ¶ 7. When witnesses found her wearing boy’s pants that she had not been wearing before, they

called the police. Id. ¶ 9. Police arrived and initially were unable to wake her. Id. ¶ 10. An assistant

state’s attorney interviewed the defendant, who told him that while they walked back from the

store, the alleged victim repeatedly told him she wanted to have sex with him. Defendant reported

that he refused and told her “ ‘she would regret it in the morning because she was drunk.’ ” He

said she kept asking, so he agreed, and they had sex in his car. Id. ¶ 11. Another assistant state’s

attorney interviewed the codefendant, who reported that, after the group returned from the store,

the alleged victim wanted to have sex with the codefendant. At first, he said no, because she had

had too much to drink, but she tried to kiss him, so they had sex. Id. ¶ 12. Other witnesses testified

the alleged victim did not appear drunk and she was responsive throughout the night. Id. ¶¶ 14-15.

¶ 56 The trial court found the defendant guilty of criminal sexual assault. Id. ¶ 16. The

court stated that people can get so drunk they enter a “ ‘blackout state’ ” and they cannot remember

anything. The court found that the alleged victim, who was 16 years old and “small in frame,” had

consumed so much alcohol that police were unable to wake her. Based on this evidence, the court

found she was unable to consent, regardless of how she acted toward the defendant and

codefendant, both of whom admitted knowing she was drunk before having sex with her. Id.

¶ 57 The appellate court reversed the defendant’s conviction because the evidence was

insufficient to show the defendant knew the alleged victim was unable to consent. Id. ¶ 20. Instead,

the evidence showed that she kissed the defendant and repeatedly insisted she wanted to have sex

with him. The court reasoned, even if the evidence showed she was “blacked out” later in the

evening, “[t]he record contains no evidence of a ‘blackout’ or other behavior by [the alleged

victim] at the time of her sexual encounter with defendant, which suggests that defendant should

- 21 - have known that [the alleged victim] lacked the ability to give knowing consent.” Id. ¶ 21. Without

such evidence, the appellate court explained, the State failed to satisfy its burden of proof.

¶ 58 Roldan does not support defendant’s argument. Medical evidence of the effects of

alcohol can indeed be useful in proving inability to consent, and such evidence was lacking in

Roldan. But the Roldan court did not rule that medical evidence is necessary in every case in which

the State alleges a victim lacked the ability to consent. Instead, it considered medical evidence as

one possible form of evidence relevant to the alleged victim’s capacity to consent, along with, for

example, her other capacities around the time of the sexual encounter or other witnesses’

observations of her level of intoxication. Id. ¶¶ 22-23. The court concluded that the entire record

was insufficient to prove the defendant knew the alleged victim was unable to consent. Id. ¶ 28.

¶ 59 Unlike in Roldan, the evidence here overwhelmingly showed not only that S.A. was

too intoxicated to consent, but also that her level of intoxication was abundantly clear to the other

party guests, including defendant. First, S.A. herself testified that she drank throughout the night

and smoked marijuana. At some point, she felt ill, and she ran to the bathroom to throw up. She

testified defendant sat with her in the bathroom, and she remembered being carried to her room.

She felt dizzy, and she needed Bean’s help to put on pajamas. After Bean told people to leave,

S.A. remembered nothing else until defendant pushed himself on her. She testified that as he was

assaulting her with his finger, she was in a “daze” and “couldn’t move.” She was shocked out of

her daze when he penetrated her with his penis.

¶ 60 The State’s other witnesses confirmed S.A.’s level of intoxication. Bean testified

S.A. was “very drunk” and threw up, and she helped S.A. put on pajamas before S.A. fell asleep.

Dawson described S.A. as “black out drunk.” He heard her throwing up, and he saw defendant

- 22 - carry her to her bedroom. Both Bean and Dawson testified that S.A. “passed out” in bed. Steidinger

testified she was “very drunk,” she was incomprehensible, and he heard her throwing up.

¶ 61 There was also clear evidence that defendant recognized S.A.’s level of

intoxication. Whittle testified defendant told him that he carried S.A. to her room because she

could not walk. Both Dawson and S.A. testified defendant carried her to her room from the

bathroom. In his text messages to Whittle, defendant said that S.A. “was on too many drugs and

alcohol to remember what clearly happened” and, “She seemed for it at first till I fingered her, then

she kinda looked like she was going to sleep so I stopped and shook her and said [S.A.] do you

still want to do this.”

¶ 62 Defendant raises various arguments to contest this evidence, but none are

persuasive. On cross-examination, S.A. testified that she consumed around six and half to a seven

and a half drinks over the course of the night and that she smoked “one or two hits” of marijuana.

Defendant insists S.A. obviously could not have been as intoxicated as she claimed after

consuming “only” this amount of alcohol and marijuana. Defendant never explains how he could

know this, and we are not convinced. Defendant further argues that the testimonies of S.A. and the

other witnesses regarding how much S.A. drank were inconsistent. We do not find this compelling.

If the State’s witnesses did not all agree on precisely how much S.A. consumed, they were

remarkably consistent in describing S.A.’s degree of intoxication. Finally, defendant claims S.A.’s

ability to tell him to leave when he first entered her room shows she was capable of giving and

refusing consent. We disagree. S.A. telling defendant to leave her room hardly supports the

inference that she consented to sexual activity, nor does it refute her claim to being in a “daze.”

Finally, as explained above, defendant’s own account of the evening lacked any credibility.

- 23 - Defendant’s attempts to pick apart the evidence are unpersuasive, and we find the evidence was

more than sufficient for the jury to reach a guilty verdict.

¶ 63 C. Propensity Evidence

¶ 64 Next, defendant argues the trial court erred by allowing A.K. to testify to

defendant’s prior sexual assault. Before moving to the substance of defendant’s argument, we first

consider whether defendant properly preserved this claim. The State contends that defendant

forfeited this claim by failing to object at trial and raise the specific arguments he now asserts on

appeal in his posttrial motion. Defendant responds that an objection during the trial is not necessary

when he filed both pretrial and posttrial motions and that his posttrial motion argued the matter

with sufficient specificity to preserve his claim.

¶ 65 Defendant is correct. “Generally, ‘[t]o preserve an issue for appeal, the defendant

must have raised the issue in a motion in limine or an objection at trial and also in a posttrial

motion.’ ” People v. Korzenewski, 2012 IL App (4th) 101026, ¶ 7 (quoting People v. Brown, 319

Ill. App. 3d 89, 96 (2001)); see People v. Hudson, 157 Ill. 2d 401, 434 (1993) (“Although the State

claims waiver, we find that defendant preserved this issue for review by raising it in a motion

in limine and in his post-trial motions.”). The State has cited no cases requiring objections both in

a motion in limine and at trial. Either, along with an adequate posttrial motion, is sufficient.

¶ 66 We also find defendant’s posttrial motion was specific enough to preserve his

claim. Certainly, “[e]rrors which are not raised with sufficient specificity in the post-trial motion

are not preserved for appellate review.” People v. Leggans, 253 Ill. App. 3d 724, 732 (1993). But

in defendant’s motion for a new trial, he argued that the trial court erred by allowing A.K.’s

propensity testimony. He quoted cases generally disapproving of propensity evidence, challenged

the reliability of A.K.’s allegations, and specifically asserted that the court misevaluated the

- 24 - probative value and prejudicial effect of the evidence. The State cites no authority to support its

claim that defendant’s posttrial motion was insufficiently specific. Therefore, we find defendant

properly preserved this issue for appeal.

¶ 67 Generally, evidence of a defendant’s past crimes is not admissible to show his

propensity to commit the charged offense. People v. Donoho, 204 Ill. 2d 159, 170 (2003).

However, section 115-7.3 of the Code provides an exception, allowing evidence of other crimes

to prove a defendant’s propensity to commit certain sex offenses. 725 ILCS 5/115-7.3 (West

2022); Donoho, 204 Ill. 2d at 176. This section provides that if a defendant is accused of criminal

sexual assault,

“evidence of the defendant’s commission of another [sex offense] ***, or evidence

to rebut that proof or an inference from that proof, may be admissible (if that

evidence is otherwise admissible under the rules of evidence) and may be

considered for its bearing on any matter to which it is relevant.

(c) In weighing the probative value of the evidence against undue prejudice

to the defendant, the court may consider:

(1) the proximity in time to the charged or predicate offense;

(2) the degree of factual similarity to the charged or predicate

offense; or

(3) other relevant facts and circumstances.” 725 ILCS 5/115-7.3

(West 2022).

To be admissible under section 115-7.3, “[o]ther-crimes evidence must bear at least some threshold

similarity to the charged offense, and as the factual similarities to the charged conduct increase, so

too does the evidence’s probative value.” People v. Adams, 2023 IL App (2d) 220061, ¶ 70.

- 25 - ¶ 68 The decision to admit other-crimes evidence rests in the sound discretion of the trial

court, and we review it for an abuse of discretion. Id. ¶ 62. The trial court abuses its discretion

when its decision is arbitrary, fanciful, or unreasonable, or where no reasonable person would take

the view adopted by the trial court. Donoho, 204 Ill. 2d at 182. Our supreme court has cautioned

trial judges “to be cautious in considering the admissibility of other-crimes evidence to show

propensity by engaging in a meaningful assessment of the probative value versus the prejudicial

impact of the evidence.” Id. at 186. However, a trial court’s “failure to conduct a meaningful

assessment on the record before admitting propensity evidence” is not necessarily reversible error.

Adams, 2023 IL App (2d) 220061, ¶ 73. Instead, when determining whether to reverse a conviction

based on other-crimes evidence,

“we must first examine whether the trial court reasonably could have found that the

probative value of the *** evidence to show defendant’s criminal propensity was

not substantially outweighed by its prejudicial effect. If we answer in the

affirmative, then the trial court’s failure to conduct a meaningful assessment would

not render the ultimate admission of the *** evidence an abuse of discretion, i.e.,

the failure to do an explicit balancing test would be harmless.” Id. ¶ 77.

See People v. Groel, 2012 IL App (3d) 090595, ¶¶ 42-44; see also People v. Boyd, 366 Ill. App.

3d 84, 94-95 (2006).

¶ 69 Here, the trial court found A.K.’s testimony admissible. It agreed with the State’s

argument that the assaults of A.K. and S.A. had sufficient similarities, but it did not specify what

similarities it relied upon. Less than three years passed between the assaults, which the court

determined was not a “lengthy period of time.” The court acknowledged A.K. possibly made

inconsistent statements, which could affect her testimony’s probative value. Nevertheless, after

- 26 - weighing the factors, the court found the propensity evidence admissible, although it added that it

would not stop defendant from impeaching A.K.

¶ 70 Defendant argues the trial court committed reversible error. First, he contends the

court failed to make a “ ‘meaningful assessment of the evidence, on the record’ ” because it failed

to specify which factual similarities between defendant’s assault of S.A. and his assault of A.K.

affected its decision (quoting Adams, 2023 IL App (2d) 220061, ¶ 72). Defendant further argues

there were substantial factual dissimilarities between the two incidents. Specifically, S.A. was

unconscious when defendant assaulted her, but A.K. was conscious, and A.K. and defendant were

in a romantic relationship, but defendant and S.A. were not. Finally, defendant claims “ ‘other

relevant facts and circumstances’ ” required excluding the evidence (quoting 725 ILCS 5/115-

7.3(c)(3) (West 2022)). A.K. alleged defendant assaulted her only after his first jury trial ended in

a hung jury. She also acknowledged that she told a detective she had never seen defendant “force

himself on anyone.” For these reasons, defendant contends the court abused its discretion in

admitting the other-crimes evidence. Furthermore, he observes the evidence of the assault of A.K.

was not admitted at the first trial, which resulted in a hung jury, and he argues this demonstrates

the error was not harmless.

¶ 71 We find, even if the trial court did not conduct a “meaningful analysis” on the

record, it did not abuse its discretion in admitting the other-crimes evidence, so there was no

reversible error. See Adams, 2023 IL App (2d) 220061, ¶¶ 73, 77. Although defendant has

identified differences between his assault of A.K. and his assault of S.A., the similarities were

more important. Both incidents were criminal sexual assaults involving nonconsensual vaginal

penetration with defendant’s penis. Both women were close to defendant in age, and he knew them

both. He assaulted each victim when he was alone with her in her bedroom, and, afterwards, he

- 27 - discouraged each victim from viewing the interaction as an assault. Where the “evidence is not

being offered under the modus operandi exception, ‘mere general areas of similarity will suffice’

to support admissibility.” Donoho, 204 Ill. 2d at 184 (quoting People v. Illgen, 145 Ill. 2d 353, 373

(1991)). Such “general areas of similarity” are present here. Id.

¶ 72 Moreover, the circumstances of A.K.’s disclosure were not so discrediting that the

trial court’s decision admitting her testimony was arbitrary, fanciful, or unreasonable. See id. at

182. A.K. could reasonably have been reluctant to disclose the assault. She testified that she did

not want to pursue prosecution and thought people would not believe her. Although she told the

detective that she had not seen defendant “force himself on anyone,” she did not say so under oath.

Instead, when asked under oath, she testified defendant assaulted her. Furthermore, defendant had

the opportunity to cross-examine A.K. and impeach her with her statement to the detective. We

also observe that defendant never denied A.K.’s allegation during his own testimony.

¶ 73 Finally, we note another factor for the court to consider under section 115-7.3(c)(1)

is “the proximity in time to the charged or predicate offense.” 725 ILCS 5/115-7.3(c)(1) (West

2022). Defendant assaulted A.K. in early 2019, and he assaulted S.A. in December 2021. We agree

with the trial court that these assaults were not separated by a “lengthy period of time.” See

Donoho, 204 Ill. 2d at 184 (finding other-crimes evidence admissible despite a 12- to 15-year gap

between offenses).

¶ 74 We conclude the trial court did not abuse its discretion by admitting A.K.’s

testimony, so we find no reversible error.

¶ 75 D. Prosecutorial Misconduct

¶ 76 Finally, defendant accuses the prosecutor of various misconduct. Specifically,

defendant claims the prosecutor improperly (1) cross-examined him about the credibility of other

- 28 - witnesses, (2) misrepresented the strength of the DNA evidence to the jury during closing

arguments, (3) personally vouched for the credibility of witnesses, and (4) asked A.K. leading

questions. We review whether a prosecutor’s misconduct was so egregious as to warrant a new

trial de novo. People v. Cook, 2018 IL App (1st) 142134, ¶ 62. Defendant acknowledges he

forfeited these arguments, so he asks us to review them for plain error. Under the plain error rule,

a reviewing court can consider an unpreserved error when

“(1) a clear or obvious error occurred and 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) a clear or obvious error occurred

and 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.” People v. Piatkowski, 225 Ill. 2d 551, 565 (2007).

See Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967).

Defendant contends that “ ‘a pattern of intentional prosecutorial misconduct may so seriously

undermine the integrity of judicial proceedings as to support reversal under the plain-error

doctrine.’ ” (quoting People v. Johnson, 208 Ill. 2d 53, 64 (2003), citing United States v. Young,

470 U.S. 1, 33 n.16 (1985) (Brennan, J., concurring in part and dissenting in part, joined by

Marshall and Blackmun, JJ.)). He claims that such intentional misconduct occurred here and that

we should reverse under the second prong of plain error. He also refers to his arguments regarding

the sufficiency of the evidence to support reversal under the first prong of plain error.

¶ 77 1. Commenting on Credibility

¶ 78 Defendant argues the prosecutor improperly asked defendant about the credibility

of the State’s witnesses. “Under Illinois law, it is generally improper to ask one witness to comment

- 29 - directly on the credibility of another witness.” People v. Becker, 239 Ill. 2d 215, 236 (2010). When

cross-examining defendant, the prosecutor asked him, “Why are you the only person saying that

[S.A.] didn’t get sick?” Defendant replied that he “was the only one who was actually right there.”

The prosecutor then said, “[S.A.] was there, and she remembers throwing up a lot.” Defendant

replied, “I don’t know.” The prosecutor also asked, “Why are you the only person saying that

[S.A.] didn’t accuse you of raping her until after [Bean] came into the room?” Defendant answered,

“I don’t know.” Defendant contends the prosecutor improperly asked defendant to comment

directly on the credibility of the other witnesses.

¶ 79 We find that the prosecutor’s questions were appropriate. She did not ask defendant

if the witnesses were lying or if they were honest. See People v. Stevens, 2018 IL App (4th)

160138, ¶¶ 45-47. She did not ask defendant if the other witnesses gave a credible or trustworthy

account. See People v. Boling, 2014 IL App (4th) 120634, ¶¶ 120-22. Instead, she simply asked

defendant if he could explain why his account of the night differed so drastically from the other

witnesses. This is not the same as directly asking whether another witness was trustworthy, so we

find no error.

¶ 80 2. DNA Evidence

¶ 81 Next, defendant claims the prosecutor misrepresented the DNA evidence during

closing argument. A prosecutor may not argue facts not based on evidence in the record. People

v. Jackson, 2012 IL App (1st) 102035, ¶ 18; see Johnson, 208 Ill. 2d at 115. On review, we “will

reverse a jury’s verdict based upon improper comments during closing arguments only if such

remarks ‘resulted in substantial prejudice to the defendant and constituted a material factor in his

conviction.’ ” Jackson, 2012 IL App (1st) 102035, ¶ 18 (quoting People v. Brooks, 345 Ill. App.

3d 945, 951 (2004)).

- 30 - ¶ 82 Defendant argues the prosecutor’s statements during closing argument

misrepresented what Y-STR testing can prove. The State’s DNA expert, Aper, testified defendant

was a “possible contributor” to the DNA recovered from S.A.’s body. But during closing

argument, the prosecutor told the jury that a “DNA profile consistent with the defendant’s DNA

was found on both of those DNA swabs.” She also told them, “[Defendant is] included as a

contributor.” Defendant claims that the prosecutor engaged in misconduct by overstating the

strength of the DNA evidence.

¶ 83 We find that the prosecutor fairly conveyed the witness’s testimony to the jury.

When the State’s expert witness, Aper, testified, she explained, “If the DNA is consistent between

the known standard from the individual and the evidence, I can say that the person is included as

a possible contributor. If the DNA is not consistent, then I can say that the person is excluded as a

possible contributor.” Given this statement, the prosecutor description of the DNA recovered from

S.A. as “consistent” with defendant’s was perfectly appropriate.

¶ 84 The prosecutor’s statement that defendant was “included as a contributor” also

fairly reflected the evidence in the record. When this phrase is viewed in its context, included in

the Background section above (supra ¶ 33), rather than in isolation, it is clear that the prosecutor

was reading off Aper’s lab report, which was properly admitted into evidence. The prosecutor had

a section of the lab report page on her PowerPoint presentation, and she was reading off the page

to the jury. The report states, “Number of contributors¹⁶: 1,” and “Cannot be excluded (is included):

[Defendant].” The report also has a footnote that says, “The number of contributors to a DNA

profile/Y-STR haplotype is an assessment of the data based on interpretation guidelines.” The

prosecutor did not misrepresent this report by saying that the one “contributor[ ]” who was

“included” was defendant.

- 31 - ¶ 85 Relying on Stoecker, 2014 IL 115756, ¶ 29, and Pike, 2016 IL App (1st) 122626,

¶ 40, defendant insists that Y-STR testing can prove only that a suspect “could have contributed”

(emphasis omitted) to the DNA in the tested sample, but it cannot “conclusively determine” that a

suspect’s DNA was present. Of course, the prosecutor did not use the phrase “conclusively

determine.” Instead, she used precisely the same words that Aper used in her testimony and report.

Moreover, the section of the report that the prosecutor showed the jury as she used the word

“contributor” indicated that the relevant haplotype is expected to occur in approximately 1 in 1,300

unrelated White men, 1 in 2,300 unrelated Black men, or 1 in 1,200 unrelated Hispanic men, just

as Aper testified. Where the prosecutor never said the evidence “conclusively determine[d]” the

DNA was defendant’s, where she used the same language to describe the evidence that the expert

witness used in her testimony and her report, and where the prosecutor showed the jury the

statistical probabilities of a match, we do not find the prosecutor misrepresented the evidence.

¶ 86 Finally, we note that defendant himself told the jury the DNA was his. In his

opening argument, defendant told the jury, “I’m not going to deny the DNA found on her vagina

was mine, because it was.” Given defendant’s acknowledgment that the DNA was his in his

opening argument, we are entirely unconvinced that the prosecutor overstated the strength of the

DNA evidence in her closing argument.

¶ 87 3. Vouching for Witnesses

¶ 88 Defendant also claims that the State improperly vouched for witnesses. Although

prosecutors have “wide latitude” to make closing arguments, they “are not permitted to vouch for

the credibility of a government witness nor are they permitted to use the credibility of the state’s

attorney’s office to bolster a witness’s testimony.” People v. Williams, 2015 IL App (1st) 122745,

¶ 12. Here, the prosecutor told the jury, “We’ve presented you with witnesses who have no reason

- 32 - to lie about their testimony. No reason to make something up to try to get someone who used to

be a dear friend of theirs in trouble.” Defendant argues these comments constituted improper

vouching for the witnesses’ credibility.

¶ 89 We disagree. Prosecutors “are allowed to comment on the evidence and reasonable

inferences from the evidence.” Id. The prosecutor here simply commented on the witnesses’

motivation for testifying. In Williams, the prosecutor told the jury, “ ‘When a gang member comes

before us and is charged with an offense, we don’t just take everything he says for truth

immediately, we check it out.’ ” Id. ¶ 10 The prosecutor added, “ ‘We go over it and we get

records,’ ” and “ ‘We corroborate. We don’t just put—and take the word of anyone.’ ” Id. The

appellate court found this was misconduct because the prosecutor injected his own opinion into

the matter, “suggested that the State’s Attorney would not put an untruthful witness on the stand,”

indicated the government had verified the witness’s testimony, and referred to information outside

the record. Id. ¶¶ 17-19. The prosecutor here made no such personal assurances or guarantees of

the witnesses’ testimony, so we find no misconduct.

¶ 90 4. Leading Questions

¶ 91 Finally, defendant claims the prosecutor improperly led A.K. when asking about

the prior sexual assault. The prosecutor asked A.K. the following:

“Q. In early 2019 when you were still in a relationship with the defendant,

did he climb on top of you while you were telling him to stop and not to touch you?

Q. Did he pull your pants down and penetrate your vagina with his penis?

- 33 - A. Yes.

Q. What was his reaction when he brought the incident up with you?

A. He told me if I really believed that he did that, then I would just break

¶ 92 Generally, it is improper for an attorney to ask a leading question of her own

witness. People v. Culbreath, 343 Ill. App. 3d 998, 1004 (2003) (citing M. Graham, Cleary &

Graham’s Handbook of Illinois Evidence § 611.9, at 505 (7th ed. 1999)). “Leading questions, to

be incompetent, must refer to material matters, and occur where no necessity for them appears.”

People v. Schladweiler, 315 Ill. 553, 556 (1925). “Questions that may be answered ‘yes’ or ‘no’

are generally considered leading.” People v. Bunning, 298 Ill. App. 3d 725, 732 (1998) (citing M.

Graham, Cleary & Graham’s Handbook of Illinois Evidence § 611.9, at 451 (6th ed. 1994)). “A

reviewing court will not reverse a conviction because the trial court permitted the use of leading

questions unless it appears both that the trial court abused its discretion and that such abuse resulted

in substantial injury to the defendant.” People v. Taylor, 132 Ill. App. 2d 473, 484 (1971).

Defendant contends the prosecutor improperly led A.K. when asking about the sexual assault.

¶ 93 The State responds that the questions were appropriate. It contends that a prosecutor

may direct a witness’s attention to the subject matter of inquiry (see Schladweiler, 315 Ill. at 556)

and that a question is not leading unless it suggests an answer (see Betts v. Manville Personal

Injury Settlement Trust, 225 Ill. App. 3d 882, 905 (1992)), so the prosecutor’s questions were not

- 34 - leading. Alternatively, citing a case from Rhode Island, the State argues that leading questions may

be permissible when eliciting necessary facts from an emotionally distraught witness. See State v.

Boillard, 789 A.2d 881, 887 (R.I. 2002). The State suggests that A.K. might have been emotionally

distressed when discussing the sexual assault and that leading questions were allowed.

¶ 94 Even if the prosecutor asked a few leading questions, those questions, on their own,

would not amount to plain error. Indeed, defendant does not argue that these leading questions,

alone, constituted an error “so serious that it affected the fairness of the defendant’s trial and

challenged the integrity of the judicial process.” (Internal quotation marks omitted.) People v.

Sebby, 2017 IL 119445, ¶ 48. Instead, defendant argues only that a “ ‘pattern of intentional

prosecutorial misconduct’ ” constituted second prong plain error (quoting Johnson, 208 Ill. 2d at

64 (citing United States v. Young, 470 U.S. at 33 n.16 (Brennan, J., concurring in part and

dissenting in part, joined by Marshall and Blackmun, JJ.)). We find at most one error, and certainly

no “pattern of intentional prosecutorial misconduct” (id.), so we reject this argument.

¶ 95 Defendant also asserts that the evidence was closely balanced, and he asks us to

reverse under the first prong of the plain error doctrine. See Sebby, 2017 IL 119445, ¶ 48. He does

not argue this point, except by referring to his argument regarding the sufficiency of the evidence.

We likewise refer to our section above rejecting that argument (supra ¶¶ 44-62). The evidence was

not remotely closely balanced. Every witness besides defendant supported the State’s account and

contradicted defendant’s, and defendant was thoroughly discredited. We find no plain error.

¶ 96 III. CONCLUSION

¶ 97 For the reasons stated, we affirm the trial court’s judgment.

¶ 98 Affirmed.

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