2023 IL App (4th) 220074-U NOTICE FILED This Order was filed under NO. 4-22-0074 March 8, 2023 Supreme Court Rule 23 and is not precedent except in the Carla Bender limited circumstances allowed 4th District Appellate IN THE APPELLATE COURT Court, IL under Rule 23(e)(1). OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) McLean County WILLIAM RAYMOND CARTER, ) No. 20CF1385 Defendant-Appellant. ) ) Honorable ) John Casey Costigan, ) Judge Presiding.
JUSTICE ZENOFF delivered the judgment of the court. Justices Steigmann and Doherty concurred in the judgment.
ORDER
¶1 Held: The appellate court held that the evidence was sufficient to convict defendant of criminal sexual assault. The appellate court further held that comments made during the State’s opening statement and closing argument, which defendant claimed improperly bolstered the victim’s credibility and diluted the reasonable doubt standard, did not amount to plain error.
¶2 Following a jury trial, defendant, William Raymond Carter, was found guilty of
criminal sexual assault (720 ILCS 5/11-1.20(a)(1) (West 2018)) (count I), attempted residential
arson (720 ILCS 5/20-1(b), 8-4 (West 2018)) (count III), unlawful restraint (720 ILCS 5/10-3
(West 2018)) (count IV), and two counts of domestic battery (720 ILCS 5/12-3.2(a)(1), (a)(2)
(West 2018)) (counts V and VI). Defendant was sentenced to 8 years’ imprisonment for criminal
sexual assault, a consecutive term of 3 years for attempted residential arson, and a concurrent
term of 1 year for unlawful restraint, for a total of 11 years’ imprisonment. Defendant also
received a fine for his domestic battery conviction. Defendant appeals, arguing that the State presented insufficient evidence of criminal sexual assault, improperly vouched for the credibility
of the victim, K.N., during its opening statement, and diluted the reasonable doubt standard
during closing argument. We affirm.
¶3 I. BACKGROUND
¶4 In December 2020, defendant was charged with one count of residential burglary
(720 ILCS 5/19-3(a) (West 2018) and one count of arson (720 ILCS 5/20-1(a)(1) (West 2018))
(the arson count was ultimately dismissed by the State) in addition to the aforementioned
offenses. The charges all stemmed from defendant’s alleged acts in September 2020 of beating
K.N., forcing K.N. to have sex with him, and setting fires inside her residence.
¶5 Defendant’s jury trial began in September 2021. The State’s theory was that, in
early September 2020, K.N. picked up defendant, with whom she was in an off-and-on
relationship, from Wisconsin and brought him to her home in Bloomington. According to the
State, defendant began to beat K.N. after she attempted to throw his PlayStation out of the front
door during an argument. Defendant then prohibited K.N. from leaving her bedroom for a day,
during which time defendant forced K.N. to have sex with him. The next day, while defendant
was showering, K.N. left the house with her children. While K.N. was gone, defendant set
several fires inside K.N.’s home, turned on the burners on the kitchen stove, and left to return to
Wisconsin.
¶6 Defendant’s theory at trial was that K.N. was lying and that he did not commit the
alleged acts. According to defendant, K.N. sustained injuries when she fell while trying to throw
defendant’s PlayStation out of the front door. K.N. then left the house with her children about an
hour and a half later. Defendant maintained that he did not force K.N. to have sex with him.
Defendant also maintained that a small fire started because his dog knocked over a gas can so
-2- that gasoline splashed onto the couch, which ignited after the smoldering end of a marijuana
cigarette fell onto the couch.
¶7 During the State’s opening statement, the prosecutor noted that K.N. “is standing
here in the back of the courtroom. She is the victim in this case, and she will probably be present
throughout most of the trial exercising her right to be here in a search for justice.” Defendant’s
counsel did not object. The prosecutor also explained that the evidence would show that K.N.
reported the injuries she sustained during the beating to a nurse. The prosecutor stated:
“[W]hen you listen to [K.N.] tell you what happened and you look at the diagrams
of the nurse and what injuries she documented on these diagrams, that’s how she
got those scratches. That’s how she got that bruise. [K.N.]’s version of events
here is the credible version of events. And I have a feeling that you may hear
some evidence otherwise, because she did lie to police officers initially. She was
not always forthcoming with police officers, because her children were home
when this happened, and she was scared out of her mind that if [the Department of
Children and Family Services (DCFS)] were called, they would take her children.
She knows now that that was a mistake, that she got herself in more trouble than
if she had just been honest the first time. And she will be honest with you when
she takes the stand and testifies in this case. She will tell you what happened. She
will admit her lies. She will admit her mistakes.”
Defendant’s counsel did not object.
¶8 During the State’s case in chief, K.N. testified that she and defendant had been in
a volatile, off-and-on relationship since they met in May 2017. They had two children together.
In February 2020, K.N. and defendant began renting a house in Bloomington, where they lived
-3- until August 2, 2020. On August 2, 2020, defendant choked her, and while K.N. was in the
hospital, defendant packed his belongings, took their dog and K.N.’s phone, and moved to
¶9 K.N. testified that she and defendant continued texting and video chatting over the
next month because they “wanted to work things out.” Because defendant had taken K.N.’s
phone, she used her grandmother’s cell phone. At the beginning of September 2020, defendant
expressed to K.N. that he wanted to move back to Bloomington. K.N. agreed to pick up
defendant and bring him back, but she did not allow defendant to move back in with her.
¶ 10 K.N. drove to Wisconsin and picked up defendant and his things, but she could
not recall on which date this occurred. K.N. initially thought she picked defendant up on
September 6, 2020; then she believed she did so on September 5, 2020. In any event, K.N. and
defendant returned to Bloomington at 5 or 6 p.m. K.N. allowed defendant to remain at the house
to see their children. Because defendant could not get ahold of his mother, with whom he was
planning on staying, K.N. allowed defendant to sleep on the couch that night while she slept in
the upstairs bedroom.
¶ 11 K.N. testified that she awoke at 4:30 a.m. on September 6 to find defendant on top
of her with his hands around her neck. Defendant had taken K.N.’s cell phone while she was
sleeping and found text messages between her and Mario Casas, a man K.N. had been “seeing.”
Defendant asked K.N. questions about her relationship with Casas, and K.N. answered truthfully
because defendant would strangle her if he suspected she was lying. Eventually, defendant went
back downstairs. After a few minutes, K.N. went downstairs to see what defendant was doing,
and she found defendant moving his belongings from K.N.’s car into the house. K.N. grabbed
defendant’s PlayStation to toss it out the door because she did not want defendant to move in, but
-4- defendant “body slammed” K.N. to the floor. Defendant then stomped on K.N.’s knee. K.N.
crawled between two couches to avoid defendant, but defendant punched her on the top of her
head several times. Defendant told K.N. to go to her bedroom upstairs, and K.N. crawled there
because she could not stand on her injured leg. Defendant told K.N. not to leave the room or he
would come back up, then defendant went back downstairs. K.N. testified that every time she
moved or stood up to reposition her leg, defendant ran up the stairs and yelled at her to stay put.
K.N. did not feel free to leave.
¶ 12 K.N. testified that eventually she had to urinate, so she got up and went to the
bathroom. Defendant came upstairs and watched K.N. urinate. K.N. explained that, afterwards,
defendant prevented K.N. from putting on her pants and directed her back into the bedroom.
K.N. testified that defendant made K.N. get on the bed on her knees. Defendant then pushed
K.N.’s head against the mattress with one hand and held her hands down with his other hand.
K.N. testified that she knew defendant “wanted to have sex,” and she “asked him not to do what
he was about to do.” K.N. explained that defendant placed his penis in her vagina. K.N. was
crying and asked defendant to stop, but defendant continued for 5 to 10 minutes. K.N. testified
that defendant ejaculated, then he went downstairs to play a video game.
¶ 13 According to K.N., the children woke up around 7:30 a.m., so K.N. brought them
into her bedroom to watch TV and keep them calm. K.N. testified, “This was September 6th. We
stayed in that room throughout that entire day, until the next day.” During that time, defendant
brought K.N. and the children food, ice cream, and juice, but he otherwise played a video game
downstairs. K.N. did not have a phone with her because defendant had taken her phone. When
counsel asked, “Did you have a computer or anything?” K.N. responded that she “had a
computer that he had broken in half, and then we had our children’s tablets.” K.N. testified that
-5- she was not able to contact anyone, because she did not have any electronics upstairs.
Eventually, K.N. and the children went to sleep.
¶ 14 K.N. explained that the next morning, September 7, she found her phone and car
keys above the kitchen cabinet while defendant showered. K.N. texted her grandmother for help,
then drove to her grandparents’ house with her children.
¶ 15 K.N. testified that, at about 5 p.m., defendant texted her that he left to go back to
Wisconsin. K.N. and her grandfather decided to go back to her house. Before they left, K.N.
noticed that she had a bloodstain on her jeans. K.N. testified that she was not experiencing her
menstrual period and had not had any vaginal bleeding prior to the assault. K.N. testified, “Since
I was 15 my period has come on the exact same date and time, the 14th through the 19th of every
month.”
¶ 16 K.N. called the police on the way to her house. When K.N. and her grandfather
arrived, the police were not there yet. K.N. went inside, noticed the smell of natural gas, and saw
that all four stove burners were on high, so she went back outside. Eventually, the police and fire
department arrived at K.N.’s home. Officer Benjamin Smith of the Bloomington Police
Department observed the home with K.N. K.N.’s television and the children’s tablets were
missing. K.N. also testified that her “brand new” laptop was broken in half and that defendant
had broken it “some point after I had left.” All the smoke detectors in the house were on the
floor, and their batteries had been removed. A lawnmower and gas cans were in the house even
though neither were usually kept inside.
¶ 17 Andrew Coe, a fire investigator who observed K.N.’s house on September 7,
2020, testified that he saw all the smoke detectors on the floor with their batteries removed. Coe
noticed a lawn mower and gas cans in the house with their caps removed. A gas detection device
-6- revealed that there was a “relatively high concentration” of natural gas in the air. Coe observed
several items in different parts of the house that had sustained fire damage, including a couch
with a burned armrest, melted blinds behind the couch, and burns on the floor. Coe testified that
the amount of damage he observed was inconsistent with someone dropping a cigarette onto a
couch cushion. In Coe’s opinion, the fire had several points of origin and was “incendiary in
nature,” as the only ignition source that could not be ruled out was exposure to open flame such
as by a match, candle, or lighter. There was an irregular burn pattern on the carpeting, which
indicated that a liquid accelerant was used. Coe clarified that the fire had been extinguished prior
to the arrival of the fire department. There was a garden hose in the kitchen, the floors were
damp, and the couch was wet to the touch.
¶ 18 Officer Smith testified that he spoke with K.N., during which time defendant
called K.N. Smith answered the phone and asked defendant if he started a fire or hurt K.N.
Defendant denied that he had done either. Smith also testified that he noticed blood around the
zipper on the front of K.N.’s pants and that she had a slight limp. Smith told K.N. that it was in
her best interest “to get a rape kit done,” so K.N. went to the hospital to undergo an examination.
¶ 19 Ethelinde Bausley, a registered nurse and sexual assault nurse examiner, testified
that she examined K.N. on September 7, 2020. Bausley prepared forensic documentation that
included K.N.’s statement of what happened. K.N. told Bausley that defendant penetrated her
vagina with his penis while holding her down. K.N. also told Bausley that, following the
incident, she had used the restroom, used wipes to wash, showered, changed her clothes, and
removed an already inserted tampon. K.N. reported that she was experiencing her menstrual
period “assuming probably now” and that she had had no sexual contact within three days other
than the assault. Bausley conducted a physical examination of K.N. Bausley observed that K.N.
-7- had a “red area” on the back of her neck, a red abrasion on her tongue, bruising on her right
shoulder, arm, and shin, and mild swelling on her left knee. K.N. also complained of pain on her
head where defendant punched her. Bausley noticed a “notch” or dip in K.N.’s hymen that could
have been an indicator of physical trauma. Bausley observed that K.N. had blood on her labia
and cervix. During cross-examination, Bausley acknowledged that “notches” in the hymen can
be caused by events like childbirth. Bausley also acknowledged that blood on K.N.’s labia and
cervix could be consistent with K.N. being on her menstrual cycle.
¶ 20 K.N. testified that, after the hospital visit, an officer took her to the police
department. K.N.’s injuries were photographed, then K.N. spoke with a detective about the
events. K.N. admitted that when she spoke with the detective, she lied “about [the] children
being at the house during some of it” and “about picking [defendant] up from Wisconsin.” K.N.
testified that she lied because a DCFS investigator had previously told her that “they would take
[her] kids” if the police became involved in any part of defendant and K.N.’s relationship again.
K.N. feared that if DCFS learned that she “was the one that went up and got [defendant]” from
Wisconsin with her children, DCFS “would for sure take [her] kids.”
¶ 21 In cross-examining K.N., defendant’s counsel challenged K.N.’s claim that she
picked up defendant from Wisconsin on September 5, 2020. Location data extracted from K.N.’s
phone purportedly showed the phone in Wisconsin on September 1, 2020. (Notably, the record
does not contain the location data portion of the data extraction report.) Counsel asked whether,
if the location data extracted from K.N.’s phone showed “you in Wisconsin on September 1,
2020, that means you would have picked up [defendant] on that day.” K.N. agreed, but she
nevertheless denied that defendant stayed at her house until September 5, as she did not
“remember there being a time frame between bringing him home and what happened.” K.N.
-8- reiterated that she remembered picking up defendant on September 5, not September 1. K.N.
noted that she obtained a new phone after defendant took her old phone on August 2, 2020. K.N.
suggested that, because both phones were iPhones, they “would have been all synced,” and it
could have been that the data extraction showed a phone in Wisconsin on September 1 because
defendant still possessed her old phone.
¶ 22 Defense counsel also sought clarification regarding K.N.’s testimony about the
condition of her laptop before and after the assault. During cross-examination, K.N. testified that
she did not know her laptop was broken until officers went through the house with her. Counsel
responded, “But you stated [on direct examination] that after the sexual assault, when you were
upstairs for over a day, you had no phone because he had taken it, and you testified that you
didn’t have a computer because he had broken it.” K.N. clarified: “He had taken my computer
and both of the girls[’] tablets from me. I had tried to use them and he took them from me.”
Therefore, according to K.N., she had no electronics to contact anyone with.
¶ 23 Counsel also questioned K.N. about the cause of her vaginal bleeding. K.N.
testified that she recalled telling Officer Smith that she had some vaginal bleeding and recalled
“thinking I possibly had started my period.” K.N. acknowledged that, though she was in her bed
throughout the day following the assault, there was no blood on the sheet. K.N. could not recall
whether she noticed blood throughout the day while using the restroom, but she noted that “it
doesn’t mean that there wasn’t blood.” K.N. explained that she first noticed that she had been
bleeding when it stained through her jeans.
¶ 24 Counsel then showed K.N. several text message exchanges between K.N.’s phone
and defendant’s phone that were extracted from K.N.’s phone. In one exchange, dated September
6, 2020, texts from defendant’s phone asked what drinks, ice cream, and other items he should
-9- purchase. Some messages included pictures of various flavors of ice cream at what appeared to
be a grocery store. Texts from K.N.’s phone were responsive to defendant’s questions. K.N.
testified that she did not send any of the text messages that were “alleged[ly] from me.” K.N.
noted that defendant had possession of her phone at the time the texts were sent and stated that,
to her knowledge, defendant never left the house while she was confined in her bedroom.
¶ 25 In another exchange of text messages, dated September 7, 2020, K.N. admittedly
sent a message accusing defendant of threatening her, choking her, hitting her, and locking her in
her room. K.N. acknowledged that she did not accuse defendant of sexually assaulting her at that
time but explained that she was not ready “to admit that that’s what happened.”
¶ 26 Another set of messages, sent later on September 7, 2020, showed several
unknown individuals texting K.N., informing her that defendant had posted K.N.’s phone
number and an intimate photo of her on Facebook. K.N. acknowledged that, after learning of
defendant’s Facebook post, she searched on her phone “if Wisconsin would extradite” defendant.
K.N. also acknowledged that she told Officer Smith that defendant had sexually assaulted her
after she learned of defendant’s Facebook post.
¶ 27 On redirect examination, K.N. agreed that it was difficult to discuss exact dates
from a year or more ago. K.N. testified that she “remember[ed] what happened to me and what
order that it happened to me. But the exact dates of that week are so fuzzy that I’m to the point
that I don’t remember” them.
¶ 28 The State introduced recordings of phone calls defendant made to his mother on
March 10 and March 11, 2021, while he was in jail. In the March 10 call, defendant’s mother
told defendant that she told someone that defendant “admitted to that fire, that it wasn’t
intentional, though.” Defendant responded, “No *** the fire was restarted after I left. The only
- 10 - thing I set on fire was a corner of the couch and the pillow. [K.N.] sent someone to restart that
fire. But I never admitted to it.” In the March 11 call, defendant stated, “Nah, I barely even did
the arson, I mean, I lit the li—I lit a little bit of [unintelligible] on the couch because [the dog]
f*** hit the blunt out my mouth.”
¶ 29 During defendant’s case in chief, defendant testified that K.N. picked him up
from Wisconsin on September 1, 2020, to see if they could reconcile their relationship. When
they arrived at her house in Bloomington, defendant brought his PlayStation and television into
the living room from the car. According to defendant, because K.N. and the children had been
exposed to COVID-19, everyone was quarantining “for the most part.” Defendant decided he
would go to the grocery store to cash a check and buy ice cream and “adult drinks.” Defendant
testified that he sent photos of different ice cream flavors to K.N. to determine what he should
get. Defendant then picked up a pizza, which everyone ate for dinner.
¶ 30 Defendant testified that he and K.N. got into an argument after K.N. found text
messages defendant sent to other women while he was in Wisconsin. However, after they
“smoked, she calmed down,” and they went to bed. According to defendant, he slept upstairs
with K.N., and when he woke up, he saw K.N. playing on her phone. Defendant checked on the
children, then K.N. told him that she wanted him to leave. Defendant texted someone for a ride,
and K.N. began yelling at defendant and telling him, “[Y]ou’re not even going to fight for us.”
K.N. then grabbed defendant’s PlayStation from under the television and attempted to throw it
outside. Defendant went to grab the PlayStation as K.N. was “bear hugging” it, and K.N. fell to
the ground, hitting her head on the front doorframe. Defendant grabbed the PlayStation, and
K.N. grabbed a tablet and went upstairs with the children. About an hour and a half later, K.N.
came back downstairs, told defendant she was leaving, and left in her vehicle with the children.
- 11 - ¶ 31 Defendant claimed that he then began smoking marijuana and went to the “back
room” to empty gasoline from a weed whacker into a container. As he did so, the dog knocked
over the gasoline container so that gasoline landed on the arm of the couch in the room. At the
same time, the smoldering end of the marijuana cigarette fell onto the couch, starting a
“baseball-sized” fire. Defendant patted the fire out with his hand. At about 1:30 or 2 p.m., an
acquaintance picked defendant up and drove him to Platteville, Wisconsin. Defendant agreed that
he texted K.N. during the ride to Wisconsin. Defendant explained that a friend called him to tell
him that an intimate photo of K.N. had been posted to Facebook. Defendant denied posting the
photo, explaining that he was in an area where it was “hard to contact or anything like that”
because there was little cell reception. Accordingly, defendant testified “trying to log on and log
off on everything would be hard.”
¶ 32 On cross-examination, defendant acknowledged that, after telling Officer Smith
over the phone that he did not start any fires or hurt K.N., defendant sent several text messages to
K.N. The messages stated, inter alia, “Show this to the pigs. I’ve been gone and have pics of the
house before I left. Whatever he says about gas lines broke. Better learn to lock s*** up,” and,
“Yall aint got s*** on me. S*** happens when doors are unlocked.”
¶ 33 Defendant also admitted that he sent several text messages to Casas, which were
admitted into evidence. Those messages stated that he “beat tf out of” K.N., that the house would
“be gone” soon, and that he had “people burning the b*** down.” Defendant also told Casas that
he “forced her to f*** me,” that the “crying was outrageous,” and that “screaming help [sic] me
last longer.” Defendant claimed that he sent the texts only to see if Casas existed and to start a
fight with him.
- 12 - ¶ 34 Defendant testified that, although he and K.N. had “makeup sex” after he returned
from Wisconsin, he did not force K.N. to have sex with him or punch her at any time. Defendant
denied breaking K.N.’s laptop, but he admitted that he sent K.N. a text that said “no more
laptop.”
¶ 35 During closing argument, the prosecutor stated:
“Our burden here is beyond a reasonable doubt. Hang on to that word
reasonable because [defendant’s counsel] has some versions that she wants you to
believe, we have the facts here today that I want you to take into consideration as
you come to your verdict.
And what’s reasonable? Is it reasonable that the guy who admits on the
phone to setting a little bit of fire and putting the fire out, the guy who sends a text
about gas lines being broken, the guy who sends a text about burning the place
down, the house will be gone here soon too? Is it reasonable to believe that he’s
the guy that tore the fire detectors down and left those burners on and poured
gasoline all over things?
That’s—that’s the reasonable version of events here, and that’s why you
should find the [d]efendant guilty of attempt residential arson. Because it’s not
reasonable at all to think that [K.N.] got home after hiding out at her dad’s and her
grandparents’ all day and set a bunch of fires and turned burners on and then
called the police. That’s not the reasonable inference from the facts for you to
draw today at all.
Is it reasonable to believe that the guy who sent text messages saying you
should have seen and how I forced her to have sex with me and how the crying
- 13 - made me last longer? Is it reasonable to believe that that guy committed criminal
sexual assault to a woman who had visible injuries that the nurse was able to
document?
Yes, that’s the reasonable version of events, that’s your reasonable
inference from the facts that have been given to you.”
¶ 36 The jury found defendant not guilty of residential burglary but guilty of criminal
sexual assault, attempted residential arson, unlawful restraint, and two counts of domestic
battery. The trial court sentenced defendant to an eight-year prison sentence for criminal sexual
assault, a consecutive three-year prison sentence for attempted residential arson, a concurrent
one-year prison sentence for unlawful restraint, and “court costs and conviction” for the domestic
battery counts.
¶ 37 This appeal follows.
¶ 38 II. ANALYSIS
¶ 39 A. Sufficiency of the Evidence
¶ 40 Defendant argues that the evidence was insufficient to support his conviction for
criminal sexual assault. The State responds that the evidence was sufficient to sustain
defendant’s conviction.
¶ 41 When we review a challenge to the sufficiency of the evidence, the relevant
inquiry is whether, when 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. People v. Sauls, 2022 IL 127732, ¶ 52. A reviewing court does not retry the defendant
when considering the sufficiency of the evidence. Sauls, 2022 IL 127732, ¶ 52. It is the
- 14 - responsibility of the trier of fact to determine the credibility of witnesses, resolve conflicts in the
testimony, weigh the evidence, and draw reasonable inferences from the facts. Sauls, 2022 IL
127732, ¶ 52. Thus, a reviewing court will not substitute its judgment for that of the trier of fact
on questions involving the weight of the evidence or the credibility of the witnesses. Sauls, 2022
IL 127732, ¶ 52. The positive, credible testimony of a single witness is sufficient to convict a
defendant, even if contradicted by the defendant. Sauls, 2022 IL 127732, ¶ 52. We will not
reverse the trial court’s judgment unless the evidence is so unreasonable, improbable, or
unsatisfactory that it justifies a reasonable doubt of the defendant’s guilt. Sauls, 2022 IL 127732,
¶ 52.
¶ 42 To prove defendant guilty of criminal sexual assault, the State had to show that
defendant (1) committed an act of sexual penetration and (2) used force or the threat of force.
720 ILCS 5/11-1.20(a)(1) (West 2018).
¶ 43 Highlighting several purported inconsistencies in K.N.’s testimony, defendant
contends that K.N.’s testimony was so inconsistent as to prevent any jury from reasonably
finding her to be credible. Defendant asserts that, absent any DNA or other forensic evidence to
corroborate K.N.’s allegation of sexual assault, the evidence could not sustain his conviction.
This argument is unavailing.
¶ 44 Inconsistencies in and contradictions of testimony do not destroy a witness’s
credibility as a matter of law; instead, the credibility of witnesses and the weight to be given their
testimony are for the jury to decide. People v. Lewis, 2019 IL App (4th) 150637-B, ¶ 73. With
this in mind, we consider defendant’s specific arguments for why the jury could not have found
K.N. credible.
- 15 - ¶ 45 Defendant argues that K.N.’s claim that the vaginal bleeding she experienced was
not the result of her menstrual period was contradicted by (1) K.N.’s testimony that she
remembered “thinking” that she “possibly had started [her] period,” (2) Bausley’s testimony that
K.N. told her on September 7, 2020, that she was experiencing her menstrual period “assuming
probably now,” and (3) Bausley’s acknowledgement that blood observed on K.N.’s labia and
cervix “[c]ould be” attributed to K.N. being on her menstrual cycle. However, K.N. testified that
she was not experiencing her menstrual period at the time of the sexual assault and that she did
not have any vaginal bleeding prior to the assault. Additionally, although Bausley agreed that
blood on K.N.’s vaginal area could be the result of K.N.’s menstrual cycle, Bausley also testified
that she observed a “notch” or dip in K.N.’s hymen that could have been an indicator of physical
trauma. Further, defendant admitted that he sent text messages to Casas in which he stated that
he “forced [K.N.] to f*** me,” that K.N.’s “crying was outrageous,” and K.N.’s “screaming help
[sic] me last longer.” It was the jury’s responsibility to resolve the apparent conflict in the
evidence regarding the source of K.N.’s vaginal bleeding and to determine whether defendant
committed an act of sexual penetration by force. The jury was free to accept K.N.’s explanation
that the bleeding was caused by the sexual assault committed by defendant. Moreover, even if
the jury found that K.N.’s bleeding was due to her menstrual cycle, physical injury is not
required to prove that a victim was forced to have sexual intercourse. People v. Bowen, 241 Ill.
App. 3d 608, 620 (1993); see also People v. Hardeman, 203 Ill. App. 3d 482, 488 (1990)
(rejecting defendant’s argument that lack of physical evidence of injury to victim’s vaginal area
contradicted victim’s claim that defendant put his penis inside her vagina).
¶ 46 Defendant also contends that K.N. could not be viewed as credible because her
testimony that she picked up defendant on September 5, 2020, and allowed him to stay at her
- 16 - home for only one night was contradicted by location data from K.N.’s phone showing that she
was in Wisconsin on September 1, 2020. However, K.N. testified several times that she had
difficulty remembering dates from a year or more before trial. K.N. noted that, while she
“remember[ed] what happened to me and what order that it happened to me,” the “exact dates of
that week are so fuzzy that I’m to the point that I don’t remember.” Notably, the location data
evidence defendant relies upon in making this argument was never introduced at trial.
Additionally, K.N. testified that the source of the location data could have been K.N.’s old
iPhone, which defendant had taken on August 2, 2020, and which “would have been all synced”
with her new phone. The jury was free to conclude that K.N. was simply unsure about the exact
date she picked up defendant, and it was free to believe K.N.’s testimony regarding the sexual
assault. See, e.g., People v. Byer, 75 Ill. App. 3d 658, 670 (1979) (noting that a witness’s mistake
as to when a conversation occurred did not compel the conclusion that the conversation never
occurred). This is especially so considering other evidence which tended to corroborate K.N.’s
version of events, including K.N.’s physical injuries, which she claimed were the result of
defendant’s beating her prior to the sexual assault, and defendant’s own admission that he texted
Casas, inter alia, that he “forced [K.N.] to f*** me.”
¶ 47 Defendant further argues that K.N. was not credible because text messages sent
on September 6, 2020, showed that defendant was at a grocery store and that K.N. was
responding to defendant’s questions about what to purchase when K.N. claimed to be confined in
her bedroom at home. However, K.N. testified that she did not have her phone on September 6,
2020. K.N. denied sending the messages attributed to her and noted that defendant possessed her
phone at that time. The jury could reasonably have inferred that defendant sent both sets of text
messages. K.N. further testified that defendant did not leave the house on September 6, 2020. It
- 17 - was the jury’s responsibility to assess this evidence, and the jury was free to believe K.N.’s
testimony and give these messages little weight.
¶ 48 Defendant also contends that K.N. presented contradictory testimony about
whether her laptop was still intact. Defendant claims that K.N. testified that she could not use her
laptop to contact anyone while she was confined in her bedroom because defendant had broken
it. However, K.N. also testified that it was in “brand new” condition when she left the home and
went to her grandparents’ residence. Defendant misinterprets K.N.’s testimony. K.N. never
explicitly testified that she could not contact anyone with her laptop while she was confined to
her bedroom because defendant broke her laptop. K.N. only stated, in response to the
prosecutor’s question about whether she had a computer, that she did have a computer that
defendant had broken. Indeed, K.N. explained that defendant had broken her computer at “some
point after I had left” the house following her confinement. K.N. clarified on cross-examination
that she did not use her computer to seek help while she was in her bedroom because defendant
had taken it from her, not because it was broken at that time.
¶ 49 Finally, defendant suggests that K.N. had a motive to falsely accuse defendant of
sexual assault because K.N. learned that her phone number and an intimate photo of her were
posted on defendant’s Facebook page. However, it was for the jury to assess the evidence and
determine K.N.’s credibility, and we will not substitute our judgment for that of the jury
regarding its credibility determination. Sauls, 2022 IL 127732, ¶ 52.
¶ 50 We hold that the evidence was sufficient to sustain defendant’s conviction for
criminal sexual assault. At trial, K.N. testified that, on September 6, 2020, defendant “body-
slammed” her, punched her, and stomped on her knee. K.N. testified that defendant then
confined her in her bedroom for a day. K.N. explained that, after going to the bathroom,
- 18 - defendant directed her back to the bedroom without her pants on, pushed her head onto the
mattress while holding her hands down, and placed his penis in her vagina despite K.N.’s crying
and asking him “not to do what he was about to do.” K.N. testified that defendant continued for 5
to 10 minutes before he ejaculated and went back downstairs to play a video game. K.N. noted
that, though she was not experiencing vaginal bleeding before the assault, she was bleeding
afterward. The evidence showed that K.N. told Bausley that defendant had held her down and
penetrated her vagina with his penis. Bausley observed bruising on K.N.’s body along with a
swollen knee, which corroborated K.N.’s version of events that defendant had beaten her before
sexually assaulting her. Bausley also noticed a “notch” or dip in K.N.’s hymen, which Bausley
testified could be an indicator of physical trauma, as well as blood on K.N.’s labia and cervix.
Moreover, defendant admitted to sending text messages to Casas indicating, inter alia, that he
“forced [K.N.] to f*** me.”
¶ 51 From this evidence, the jury could reasonably conclude that defendant penetrated
K.N.’s vagina with his penis through use of force. Accordingly, the evidence was sufficient to
sustain defendant’s conviction for criminal sexual assault.
¶ 52 B. Prosecutor’s Comments During Opening Statement and Closing Argument
¶ 53 Defendant argues that he was denied a fair trial because the State improperly
vouched for K.N.’s credibility during its opening statement and diluted the reasonable doubt
standard in its closing argument.
¶ 54 Defendant concedes that these issues were not preserved for review, but he asks
this court to review them for plain error. See People v. Richmond, 341 Ill. App. 3d 39, 46 (2003)
(stating to preserve an issue for review, defendant must both timely object at trial and include the
objection in a posttrial motion).
- 19 - ¶ 55 The plain-error doctrine allows a reviewing court to 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 the error is so serious that it affected the
fairness of the trial and challenged the integrity of the judicial process, regardless of the
closeness of the evidence. People v. Shaw, 2016 IL App (4th) 150444, ¶ 69. A defendant seeking
plain-error review bears the burden of showing that the underlying forfeiture should be excused.
Shaw, 2016 IL App (4th) 150444, ¶ 69. The first step of plain-error analysis is to determine
whether any error occurred. Shaw, 2016 IL App (4th) 150444, ¶ 69.
¶ 56 Initially, we note that defendant claims that the prosecutor’s comments
constituted “prosecutorial misconduct.” We reject that characterization. As we have previously
explained, Black’s Law Dictionary defines “misconduct” as “ ‘dereliction of duty; unlawful,
dishonest, or improper behavior, esp. by someone in a position of authority or trust,’ and ‘[a]n
attorney’s dishonesty or attempt to persuade a court or jury by using deceptive or reprehensible
methods.’ ” People v. Williams, 2020 IL App (4th) 180554, ¶ 74 (quoting Black’s Law
Dictionary (11th ed. 2019)). Brady violations or Batson violations have been described as
misconduct, as opposed to an allegation that the State made improper comments during opening
statement and closing argument. Williams, 2020 IL App (4th) 180554, ¶ 74. Accordingly, we
once again “encourage defendants to allege prosecutorial misconduct occurred only when the
circumstances justify that pejorative description.” Williams, 2020 IL App (4th) 180554, ¶ 75.
¶ 57 Defendant first contends that the State improperly vouched for K.N.’s credibility
during its opening statement. Specifically, defendant takes issue with the prosecutor’s statement
that when the jury listened to K.N., a “victim,” “tell you what happened and you look at the
- 20 - diagrams of the nurse and what injuries she documented,” her “version of events here is the
credible version of events.” Defendant also challenges the prosecutor’s comment that, although
K.N. initially lied to police officers and “was not always forthcoming” with them about what
happened to her, she would “admit her lies,” “admit her mistakes,” and “be honest with you
when she takes the stand and testifies.”
¶ 58 The purpose of an opening statement is to give the jury a brief introduction of the
disputed factual issues and what each party expects the evidence to prove. People v. James, 2017
IL App (1st) 143391, ¶ 67. “The parties do not enjoy the same ‘wide latitude’ in commenting on
the case as they do in closing arguments.” James, 2017 IL App (1st) 143391, ¶ 67 (quoting
People v. Jones, 2016 IL App (1st) 141008, ¶ 22). Comments that tend to bolster a witness’s
credibility are improper. James, 2017 IL App (1st) 143391, ¶ 67. For a prosecutor’s comments
regarding a witness’s credibility to be improper, the prosecutor must explicitly state that he or she
is asserting his or her personal views. People v. Deramus, 2014 IL App (1st) 130995, ¶ 51. If a
prosecutor’s remarks are such that the jury would have to infer that he was personally vouching
for a witness’s credibility, the remarks are not improper. People v. Pope, 284 Ill. App. 3d 695,
707 (1996). Additionally, improper comments require a new trial “only if the jury could have
reached a contrary verdict in their absence” or, in other words, if the comments contributed to the
defendant’s conviction. (Internal quotation marks omitted.) James, 2017 IL App (1st) 143391,
¶ 67 (quoting Jones, 2016 IL App (1st) 141008, ¶ 23); see also People v. Long, 2018 IL App
(4th) 150919, ¶ 62 (noting incidental and uncalculated remarks in an opening statement cannot
form the basis of reversal absent deliberate misconduct and “substantial prejudice” to the
defendant, such that the “result would have been different absent the complained-of remark”).
- 21 - ¶ 59 We conclude that the prosecutor’s comments during her opening statement did
not constitute clear or obvious error. Here, the prosecutor did not explicitly state that it was her
personal view that K.N. was credible. Thus, the jury would have had to infer that the prosecutor
was personally vouching for K.N.’s credibility. Additionally, the prosecutor’s comments could
be interpreted as conveying that the evidence would show that K.N. understood that she
committed a mistake in failing to be honest with officers, and thus was testifying honestly.
Moreover, given the strength of the State’s case—which included (1) Bausley’s observations
corroborating K.N.’s claims that defendant beat and sexually assaulted her, (2) defendant’s
admission that he sent text messages claiming to have sexually assaulted K.N., and (3) Coe’s
testimony that the cause of the fire in K.N.’s home was incendiary—we cannot say that
defendant suffered substantial prejudice or that the jury would have reached a different verdict
absent the State’s comments.
¶ 60 Further, even if the comments constituted clear or obvious error, defendant is not
entitled to relief pursuant to the plain-error doctrine. See Richmond, 341 Ill. App. 3d at 47-48
(stating although State’s delivery of opening statement from the first-person perspective of the
victim was improper, it did not constitute plain error).
¶ 61 Defendant cannot establish first-prong plain error because the evidence was not
closely balanced. As previously noted, K.N. testified that defendant “body-slammed” her,
punched her, and stomped on her knee before he confined her in her bedroom for a day. K.N.
explained that, later, after she went to the bathroom, defendant directed her back into the
bedroom, held her down, and placed his penis in her vagina despite K.N.’s crying and asking him
“not to do what he was about to do.” K.N. testified that she began to experience vaginal bleeding
after the assault. The evidence showed that K.N. informed Bausley that defendant held her down
- 22 - and penetrated her vagina with his penis. Bausley observed injuries that were consistent with
K.N.’s account, including a “notch” in K.N.’s hymen that was possibly an indicator of physical
trauma and blood on K.N.’s labia and cervix. Defendant admitted to sending text messages to
Casas indicating that he “forced [K.N.] to f*** me.” Coe testified that he observed fire damage
in the house, including a burned couch, melted blinds behind the couch, and burns on the floor
that were not consistent with someone having dropped a lit cigarette. Coe testified that, in his
opinion, the fire had several points of origin. Coe further explained that liquid accelerant was
used and that the fire was incendiary in nature, as the only ignition source that could not be ruled
out was exposure to open flame from, for example, a match, candle, or lighter. Additionally, in
text messages and jail phone calls admitted into evidence, defendant claimed to have had “people
burning the b*** down” and noted that he had set fires in K.N.’s home.
¶ 62 Similarly, defendant cannot establish that the prosecutor’s comments rose to such
a magnitude as to deprive him of a fair trial and constitute second-prong plain error. The record
shows that the jury was instructed that opening statements and closing arguments are not
evidence, and any statement or argument made by the attorneys that is not based on the evidence
should be disregarded. The jury was also instructed that “[o]nly you are the judges of the
believability of the witnesses and the weight to be given to the testimony of each of them.” The
jury is presumed to follow instructions. People v. Brandon, 283 Ill. App. 3d 358, 364 (1996).
Accordingly, we find no plain error.
¶ 63 Defendant also contends that the prosecutor diluted the reasonable-doubt standard
in its closing argument by implying that its burden of proof was met if the jury believed that its
version of events was more reasonable than defendant’s version. Specifically, defendant
complains of the prosecutor commenting that the State’s “burden here is beyond a reasonable
- 23 - doubt,” then asking whether defendant’s commission of residential arson and sexual assault was
the “reasonable version of events” in light of the evidence presented.
¶ 64 A prosecutor has wide latitude in making a closing argument and is permitted to
comment on the evidence and any fair, reasonable inferences the evidence yields. People v.
Burney, 2011 IL App (4th) 100343, ¶ 65. Reversible error is found only if the defendant shows
that the improper remarks were so prejudicial that real justice was denied or that the verdict
resulted from the error. Burney, 2011 IL App (4th) 100343, ¶ 65. Additionally, a “ ‘trial court
can cure erroneous statements made during arguments by giving proper jury instructions on the
law ***, telling the jury arguments are not evidence and should be disregarded if not supported
by the evidence, or by sustaining an objection and instructing the jury to disregard the improper
statement.’ ” People v. Price, 2021 IL App (4th) 190043, ¶ 154 (quoting People v. Kallal, 2019
IL App (4th) 180099, ¶ 35).
¶ 65 Courts disfavor attempts to explain the reasonable-doubt standard because the
attempt, even if well-intentioned, “may distort the standard to the prejudice of the defendant.”
Burney, 2011 IL App (4th) 100343, ¶ 67. Even so, counsel is entitled to discuss reasonable
doubt, to present his or her view of the evidence, and to suggest whether the evidence supports
reasonable doubt. Burney, 2011 IL App (4th) 100343, ¶ 67. Further, counsel may comment on
the weight of the evidence adduced at trial and compare the relative weight of the evidence
supporting each party’s theory of the case. People v. Zoph, 381 Ill. App. 3d 435, 454 (2008).
¶ 66 We conclude that the prosecutor’s statements during closing argument did not
constitute clear or obvious error. We find Price instructive. In Price, during the State’s closing
argument, the prosecutor argued, “There’s no way to remove all doubt. The only way to know
without any doubt is to be a witness.” Price, 2021 IL App (4th) 190043, ¶ 100. The trial court
- 24 - sustained an objection from the defendant and informed the jury, “[A]rguments of lawyers will
not to [sic] be taken as statements of law. Instructions on the law will come from me after final
arguments are completed.” Price, 2021 IL App (4th) 190043, ¶ 100. Thereafter, the prosecutor
argued:
“When you’re looking at all this, don’t just consider what’s possible. Consider
what’s probable. Look at it all together. What makes sense? Everyone in this
courtroom could have possibly been the person that murdered [the victim]. Who
in this courtroom does the evidence point to and show is probable? That’s what
you need to look at.” Price, 2021 IL App (4th) 190043, ¶ 100.
The trial court then sustained the defendant’s objection that the State was “lowering the burden.”
Price, 2021 IL App (4th) 190043, ¶ 100.
¶ 67 On appeal, this court rejected the defendant’s argument that he was denied a fair
trial because the prosecutor’s comments lowered the State’s burden of proof. Price, 2021 IL App
(4th) 190043, ¶ 151. We concluded that defendant failed to establish that the comments were so
prejudicial as to deny real justice or that the verdict resulted from the error. Price, 2021 IL App
(4th) 190043, ¶ 157. We explained that the trial court “cured any prejudicial effects” of the
comments by instructing the jury “that arguments of the parties are not evidence.” Price, 2021 IL
App (4th) 190043, ¶¶ 157-59. We further explained that although the State argued that the jury
should consider what was more “probable,” the prosecutor nevertheless correctly informed the
jury that the State had the burden of proving defendant’s guilt beyond a reasonable doubt. Price,
2021 IL App (4th) 190043, ¶ 159.
¶ 68 Like Price, defendant cannot show that he suffered such prejudice from the
State’s comments as would deny him real justice or that the verdict resulted from the comments.
- 25 - As previously noted, given the strength of the State’s case, we do not believe that the jury would
have reached a different verdict absent the comments. Additionally, the trial court cured any
prejudicial effects resulting from the comments by properly instructing the jury that the State had
the burden of proving defendant’s guilt beyond a reasonable doubt and that arguments of the
parties are not evidence. We also note that the prosecutor correctly addressed the State’s burden
of proof by informing the jury, “Our burden here is beyond a reasonable doubt.”
¶ 69 Moreover, even if we assume, arguendo, that the prosecutor’s comments
amounted to clear or obvious error, defendant is not entitled to relief pursuant to the plain-error
doctrine. As previously discussed, the evidence was not closely balanced, and therefore,
defendant cannot establish first-prong plain error. Defendant cannot show that the comments
amounted to second-prong plain error, as he cannot show that the error was of such a magnitude
as to deprive defendant of a fair trial. Any detrimental impact of the prosecutor’s comments was
minimized because the trial court properly instructed the jury that the State had the burden of
proving defendant’s guilt beyond a reasonable doubt and that closing arguments are not
evidence. See Shaw, 2016 IL App (4th) 150444, ¶ 72 (noting that even if State’s closing
argument was improper, the trial court properly instructing the jury minimized the impact of any
improper comments such that defendant could not show second-prong plain error). Accordingly,
we find no plain error.
¶ 70 III. CONCLUSION
¶ 71 For the reasons stated, we affirm defendant’s conviction and sentence.
¶ 72 Affirmed.
- 26 -