NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
2021 IL App (3d) 190630-U
Order filed December 8, 2021 ____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 12th Judicial Circuit, ) Will County, Illinois. Plaintiff-Appellee, ) ) Appeal No. 3-19-0630 v. ) Circuit No. 17-CF-613 ) ANTHONY S. CREASY, ) ) Honorable Daniel L. Kennedy, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________
JUSTICE SCHMIDT delivered the judgment of the court. Presiding Justice McDade and Justice Daugherity concurred in the judgment.
ORDER
¶1 Held: (1) The State proved defendant’s guilt beyond a reasonable doubt; (2) the court properly allowed evidence of defendant’s prior bad acts and the jury instruction on this issue did not constitute reversible error; (3) the State did not make improper comments during closing and rebuttal arguments; (4) the victim’s mother’s testimony did not amount to perjury; (5) defense counsel did not provide ineffective assistance; (6) there is no cumulative error; and (7) the court did not abuse its discretion at sentencing.
¶2 Defendant, Anthony S. Creasy, appeals his convictions and sentences for predatory
criminal sexual assault of a child. He raises the following issues: (1) the sufficiency of the evidence; (2) the admissibility and the jury instructions related to prior bad acts evidence; (3) the
propriety of the State’s comments during closing and rebuttal arguments; (4) the victim’s mother’s
alleged perjured testimony; (5) defense counsel’s effectiveness; (6) cumulative error; and (7) the
propriety of his sentences. We affirm.
¶3 I. BACKGROUND
¶4 The State charged defendant with four counts of predatory criminal sexual assault of a child
(720 ILCS 5/12-14.1(a)(1) (West 2016)). Each count alleged defendant committed the offense by
placing his penis in the victim V.M.’s mouth. Each count corresponded to a different time period.
Count I alleged the act occurred between January 1, 2009, and June 1, 2011. Count II alleged the
act occurred between June 2, 2011, and June 1, 2012. Count III alleged the act occurred between
June 2, 2012, and June 1, 2013. Count IV alleged the act occurred between June 2, 2013, and
December 31, 2014.
¶5 The State filed a pretrial motion in limine, which sought to admit evidence of other
allegations made against defendant. The State sought to introduce evidence that defendant had
committed similar bad acts to a different victim, C.P., in Wisconsin. The State sought the
admission of those acts to show defendant’s propensity as a sex offender pursuant to section 115-
7.3 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-7.3 (West 2016)). In the
alternative, the State sought to have the other bad acts evidence admitted under Illinois Rule of
Evidence 404(b) (eff. Jan. 1, 2011) to show defendant’s “motive, intent, absence of mistake, a
continuing narrative of events, rebut a defense, and establish defendant’s modus operandi.”
¶6 The court held a hearing on the State’s motion in limine. After hearing the arguments of
the parties, and over defendant’s objection, the trial court stated, “I will grant the State’s motion
in limine based on the case law that has been provided to me.” Defense counsel asked the court if
-2- it considered whether the prejudicial value of the evidence outweighed its probative value. The
court responded, “Yes. I didn’t find that final prong of the test.”
¶7 The cause proceeded to a jury trial. The victim, V.M., testified. She provided her date of
birth as April 1, 2002. She identified defendant in open court. She met defendant for the first time
when she was six years old. Her mother Ashley P. dated defendant on-and-off over the next six
years. V.M., her mother, and defendant lived in the same home at times during that period.
Defendant would babysit her even at times when her mother and defendant were not dating and
living separately. V.M. viewed defendant as a father figure.
¶8 When V.M. was about seven or eight years old (around 2009 and 2010), she, her mother,
and defendant lived in a home together in Joliet. V.M. and defendant were using two different
computers in the same room. V.M. noticed defendant playing with something. She thought it was
a “toy mushroom.”
¶9 About two weeks later, she did her homework in the kitchen. When she finished, she went
to the computer room to have defendant check her homework. She walked in the room and
observed defendant masturbating to pornography. Defendant acted surprised when she walked in,
but he eventually explained what was happening in the videos. He told V.M. that he wanted her to
do the things in the videos. He explained how to give “blow jobs.” He asked her to do it, which
she eventually did.
¶ 10 According to V.M., defendant would ask her to give him a “hand job” or “blow job”
frequently. She would perform the acts almost “[e]very day, every other day.” She described the
acts and stated that they either occurred in the computer room or bedroom of the home. The events
occurred during the day when her mother was not home. It also happened at night when defendant
-3- would put her to bed. V.M. did not tell her mother what happened between her and defendant until
after the incidents stopped.
¶ 11 In fourth grade (2011 to 2012), V.M. and her mother moved into her mother’s friend’s
home. V.M. was about 8 to 10 years old at the time. Defendant did not live with them, but V.M.
and defendant stayed in contact. Defendant would visit the home and would ask V.M. for “hand
jobs” and “blow jobs,” which she performed. V.M. also stated that defendant touched her vagina
and breasts during this period.
¶ 12 Sometime between fourth and fifth grade, V.M. and her mother moved back in with
defendant. She was about 10 to 11 years old at the time. Defendant continued to have V.M. perform
sexual acts with him. He also placed his penis in her vagina for the first time during this period.
The sexual incidents occurred “[e]very day, every other day” while they lived together.
¶ 13 In sixth grade, when V.M. was approximately 11 to 13 years old, she and her mother moved
back in with her mother’s friend. V.M. continued seeing defendant about once a week during this
period. Defendant continued to engage in sexual acts when he saw V.M.
¶ 14 The same year V.M. and her mother moved back in with defendant. The sexual encounters
continued to occur with defendant. She began getting her menstrual cycle at this time, so defendant
started using condoms when they had sexual intercourse. She continued to perform oral sex on
defendant. She performed oral sex on defendant in his car multiple times. During these incidents,
defendant told V.M. he wanted to be a “better dad” and would stop the sexual contact. She said
the acts of oral sex and intercourse occurred more times than she could count.
¶ 15 At trial, V.M. described defendant’s penis. She indicated that his penis had a silver ring
piercing. V.M. was shown a picture of a penis with a piercing and said that it was defendant’s
penis.
-4- ¶ 16 Ashley and defendant broke up when V.M. was in sixth grade. V.M. was on good terms
with defendant after he ended the relationship with her mom. Although V.M. never told her mom
about the incidents before, she eventually told her mom when she learned that defendant was living
with young girls that were around her age when defendant began engaging in sexual activities with
her. V.M. was worried that defendant would do the same things to those girls.
¶ 17 On cross-examination, V.M. testified that she did not know that what defendant made her
do was inappropriate. She added that there were occasions when defendant would join her in the
shower. She told her grandmother about defendant helping her wash in the shower. Her
grandmother told her that it was not okay for him to do that, and to tell her if he did it again. V.M.
never told her grandmother about her other sexual encounters with defendant.
¶ 18 According to V.M., defendant used his cell phone to record and take pictures of some of
their sexual encounters. She did not know what happened to his cell phone, but she thought it had
been stolen. When defendant used a condom during intercourse, she would throw it away after.
She did not think to show the condom to anyone because she did not know that what she and
defendant did was inappropriate.
¶ 19 In seventh grade, V.M. told her friend about her encounters with defendant. Her friend told
her that what defendant was doing was wrong. Her friend did not tell anyone else what V.M. told
her. After that conversation, V.M. still did not tell her mother. A few years later, V.M. told her
cousin. Her cousin told her to tell her mother. About a month after her conversation with her
cousin, V.M. told her mother.
¶ 20 V.M.’s mother Ashley testified that she dated defendant on-and-off from around 2008 to
2014. She described the relationship between defendant and V.M. as “pretty good.” She left V.M.
alone with defendant numerous times and did not have any reason to believe that defendant was
-5- untrustworthy. Ashley identified the same picture shown to V.M. as a picture of defendant’s penis
with a piercing.
¶ 21 Ashley did have access to defendant’s cell phone. She did not find any inappropriate
pictures or videos of V.M. on the phone.
¶ 22 In 2017, V.M. came to her with the allegations against defendant. Defendant lived in
Wisconsin at the time. She called defendant the same day to confront him with V.M.’s allegations.
The following colloquy occurred:
“Q: And at what point—did you reach out to [defendant] at
all?
A: I did, the day that [V.M.] told me I called him.
***
Q: Okay. And isn’t it true that when you spoke to
[defendant], he completely denied these allegations?
A: No, that’s not true.”
¶ 23 Ashley also called defendant’s mother and sister regarding the allegations. She spoke with
them because defendant did not deny the allegations when she confronted him.
¶ 24 On redirect examination, the State asked Ashley, “When you called defendant, you said he
did not deny this, right?” Ashley answered, “No, he didn’t.” On recross examination, the defense
asked Ashley if defendant ever admitted to the allegations, and she answered, “No, he didn’t.”
¶ 25 The parties stipulated to C.P.’s testimony. The stipulation provided:
“[I]f [C.P.] were to testify in person, her testimony would be as
follows: That [C.P.] is the stepdaughter of the defendant through his
marriage to [her] mother, N.P., and she refers to [defendant] as dad.
-6- And that [C.P.]’s date of birth is August 2, 2007; and that in
December of 2015 when [C.P.] was eight years old, she was living with her
mother and the defendant in DePue, Illinois; and that at the beginning of
that month, the defendant pulled down [C.P.]’s pants and touched her
private with his bare hands while in their living room, and the month was
also the start of the defendant giving [C.P.] candy, such as gummy bears,
gummy worms, Hershey’s chocolate and Reese’s for sucking his [penis];
and that there were numerous other occasions when they lived in [DePue],
Illinois and when they moved to Coon Valley, Wisconsin that the defendant
had [C.P.] suck his [penis] and move her hand up and down on his penis
until cum would come out of his little hole and go into his hand. Then he
would go flush it in the bathroom, and that defendant would urge her to
swallow his cum.
And that the defendant taught her the word cum and [penis], and that
he was the only one she ever discussed sexual things with. And that he told
her not to tell anyone about her sucking his [penis] because they wouldn’t
have a house to live in, he wouldn’t be her dad anymore, and that he would
be arrested and put in an orange jump suit.
And the defendant showed her pornographic videos on his cell
phone, which showed teenagers in the videos depicting the children perform
oral sex, two of which [C.P.] recalls being titled teenager’s first time
sucking cock and four-year-old first time sucking cock.
-7- And that while living with him in Coon Valley, Wisconsin, the
sexual acts would take place throughout the house, in the living room,
bathroom, her old bedroom and his office.
And the last time he made her suck his [penis] was in December of
2016 between Christmas and New Year’s when [C.P.] was nine years old,
and the defendant had brownish/blackish hair and a small gray ring on his
And that when [C.P.] said she wanted to stop, the defendant told her
he’d just move on and start doing with her younger sister *** to which she
responded, fine, I’ll do it, but I won’t swallow the cum. And the defendant
told [C.P.] that her mom did it but not enough.”
¶ 26 After reading the stipulation, the State rested. Defendant chose not to testify.
¶ 27 During the State’s closing argument, it noted that defendant did not deny the accusations
when Ashley confronted him. The State noted the reason why V.M. finally came forward with her
allegations because “that stipulation between the People of the State of Illinois and that defendant,
that when his stepdaughter was eight years old, he began to sexually abuse her.” As to the
stipulation, the State added, “he is not on trial for that. And you are not to consider that for any
other purpose other than those which were instructed or will be instructed to you by this judge,
which is intent, motive, design, propensity, and a continuing narrative of events.”
¶ 28 In response, the defense highlighted the lack of physical evidence in the case. The defense
acknowledged that Ashley testified that defendant did not deny the accusation. However, the
defense argued that defendant never admitted the allegations.
-8- ¶ 29 In rebuttal, the State reiterated the elements of the offenses and the evidence at trial. The
State also argued:
“[V.M.] came forward because she knew [defendant] had two
stepdaughters that she did not want to approach the age where it started
happening to her. And guess what? That girl that was on the stand, that girl
told you everything, pretty smart girl. Because guess what? It already had.
That’s what the stipulation was. The stipulation between the parties that this
girl would testify to this, we both agreed.”
¶ 30 After arguments, the trial court provided the jury with its instructions. In relevant part, the
court instructed the jury:
“Evidence has been received that the defendant has been involved
in offenses other than those charged in the indictment. This evidence has
been received on the issues of the defendant’s intent, motive, design,
continuing narrative of events and propensity, and may be considered by
you only for that limited purpose.”
¶ 31 Ultimately, the jury found defendant guilty of all four counts of predatory criminal sexual
assault of a child.
¶ 32 Defendant filed a posttrial motion. The motion argued the following errors occurred at trial:
(1) the trial court erred in allowing C.P.’s stipulated testimony to establish defendant’s propensity,
motive, and intent; (2) the trial court erred in instructing the jury on how it should consider C.P.’s
stipulated testimony; (3) the State made improper closing and rebuttal arguments; and (4) the State
failed to prove defendant’s guilt beyond a reasonable doubt.
-9- ¶ 33 In addition, defendant’s motion argued that his trial counsel provided ineffective assistance
for failing to “insert exculpatory evidence in” C.P.’s stipulated testimony. Specifically, defendant
contended that counsel should have also included several facts surrounding C.P.’s allegation in her
stipulation. Those facts include: (1) defendant denied the allegation when confronted; (2) C.P.’s
mother Natasha reported being skeptical of C.P.’s allegations but knew she had to report it to
protect her children; (3) C.P. thought the allegations were funny and made a comment about her
mother “getting rid of one dad so what was one more”; (4) a roommate lived with Natasha and
defendant that was always home and never reported anything; (5) after making her allegation, C.P.
made comments that defendant did not do it and it was “the other guy”; (6) Natasha confirmed
C.P. likely would have overheard her and defendant fighting about the allegations in Illinois; (7)
Natasha confirmed C.P. had access to defendant’s cell phone and knew how to use it; (8) Natasha
confirmed pornography and nude pictures of defendant may have been on her phone; (9) Natasha
was skeptical of the allegations because she was unable to think about a time when she left her
daughters alone with defendant; and (10) C.P. once walked in on her uncle and another woman
watching pornography. Defendant supported these allegations with various written police reports
and his Wisconsin attorney’s investigative reports.
¶ 34 Defendant’s motion also claimed that Ashley made a false statement at trial when she
testified that defendant did not deny V.M.’s allegations when she initially confronted him.
Defendant argued that the State failed to exercise due diligence in obtaining text messages between
he and Ashley in which he denied V.M.’s allegations. According to defendant, the State received
discovery from the case in Wisconsin. Although the specific text message exchange between
defendant and Ashley was not part of the discovery, the documents in the discovery referenced
how police obtained defendant’s phone and text message history. Defendant claimed that if the
- 10 - State exercised due diligence in obtaining those text messages, it could have corrected Ashley’s
testimony at trial that defendant never denied V.M.’s allegations. Attached to the motion are screen
captured images of text messages defendant claimed he and Ashley exchanged when she
confronted him about V.M.’s allegations:
“[Ashley]: Answer your phone. It’s an emergency [ Feb. 19, 2017,
10:19 PM].
[Ashley]: Make sure you tell your wife you’re a fucking CHILD
MOLESTER I would hate to see you fuck up her girls the way you fucked
up [V.M.]. You are so lucky you are out of state. Be sure I will be talking
to the police to see if I can press charges against you. I also already talked
to your mother and told her what [V.M.] said. [Feb. 19, 2017, 10:40 PM].
[Defendant]: I’m not sure if you hung up or if we simply got
disconnected. [Feb. 20, 2017, 12:38 AM].1
[Ashley]: I hung up. She said you took a picture and a video of it
[defendant]. I absolutely believe her and I think you are a fucking liar. [Feb.
20, 2017, 12:47 AM]
[Defendant]: I understand. She is your daughter. I would believe my
child too. Any parent should. I don’t know what to say. I don’t know why
she would say something like that now. But, no. [Feb. 20, 2017, 12:55 AM]”
¶ 35 Ultimately, the trial court denied defendant’s posttrial motion.
1 The screen capture of the messages shows that Ashley sent defendant a message prior to this response. However, that message is cut off in the image, and it is not known what Ashley said in that message. - 11 - ¶ 36 The presentencing investigation report (PSI) showed that defendant was 36 years old. His
only prior criminal record included a driving under the influence arrest for which he received court
supervision. He had a stable residence and employment prior to his arrest. He had an associate
degree in computer aided drafting and design. Defendant submitted character letters from his
family and friends.
¶ 37 At the sentencing hearing, Ashley read her victim impact statement. She described
defendant’s acts as “devastating” to her family. V.M. had since become depressed and began “self-
harming.” V.M. now struggles in school and has difficulty creating normal friendships.
¶ 38 V.M. read her victim impact statement as well. Defendant’s acts caused her depression and
she struggled to pursue her passions. She struggled with anxiety and depression and had days
where she “cannot function.” She also had difficulty in school and had difficulty being around
adult males. She believed she would start to heal after defendant was found guilty.
¶ 39 After hearing the parties’ arguments at sentencing, the court found the “aggravating factors
outweigh any mitigating factors.” The court sentenced defendant to four consecutive terms of 21
years’ imprisonment (84 years in total).
¶ 40 II. ANALYSIS
¶ 41 A. Sufficiency of the Evidence
¶ 42 First, we consider whether the evidence at trial proved beyond a reasonable doubt that
defendant committed the four counts of predatory criminal sexual assault of a child. In reviewing
a challenge to the sufficiency of the evidence, the question is 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 charged beyond a reasonable doubt. People v. Collins, 106 Ill. 2d
237, 261 (1985). In doing so, we are mindful that “it is for the jury to weigh the credibility of the
- 12 - witnesses and to resolve conflicts or inconsistencies in their testimony” (People v. Frieberg, 147
Ill. 2d 326, 360 (1992)), and it is not the function of this court to retry the defendant (People v.
Givens, 237 Ill. 2d 311, 334 (2010)). When a challenge to the sufficiency of the evidence is
presented, all reasonable inferences from the record are drawn in favor of the prosecution. Id. We
find the evidence viewed in the light most favorable to the prosecution supports the jury’s verdict.
¶ 43 Here, defendant’s challenge to the sufficiency of the evidence is limited to the credibility
of V.M. At trial, V.M. provided consistent testimony as to countless acts of sexual assault
defendant committed against her between 2009 and 2014. She testified that the abuse continued
even while defendant lived in a separate location. She testified to her ages, years in school, and the
locations of the abuses. This testimony alone, if credible, was sufficient to find defendant guilty
of predatory criminal sexual assault of a child. Significantly, the jury found V.M. to be a credible
witness.
¶ 44 While V.M.’s testimony alone, when viewed in the light most favorable to the State, is
sufficient to affirm defendant’s conviction, the record also contains evidence corroborating her
testimony. She was also able to testify to the fact that defendant had a piercing and a silver ring on
his penis. This is consistent with Ashley and C.P.’s testimony that defendant had a piercing on his
penis. It is unlikely V.M. would have known this if defendant had not forced her to repeatedly
perform sexual acts. Additionally, V.M.’s and C.P.’s descriptions of how defendant repeatedly
abused them is nearly identical.
¶ 45 Defendant challenges V.M.’s credibility by calling our attention to the following facts: (1)
V.M. reported showering with defendant to her grandmother, who told her it was wrong, yet V.M.
made no mention of the sexual abuse; (2) defendant told her he wanted to stop the sexual
encounters and be a better dad, but she still did not tell anyone; (3) V.M. told one of her friends
- 13 - two years before she told her mother even though her friend told her the behavior was wrong; and
(4) Ashley contradicted V.M.’s description of defendant having an indentation on his penis.
¶ 46 V.M. failing to immediately come forward with her allegations against defendant does not
make her a less credible witness. Exposing a deeply personal traumatic experience is no easy task.
In addition, while she and Ashley did not agree that defendant’s penis had an indentation, they
both identified the same photograph of defendant’s penis at trial. The trier of fact had the
opportunity to observe V.M. and hear her testimony. It was the trier of fact’s role to resolve any
inconsistencies in her testimony and determine the weight to be given. People v. Tomei, 2013 IL
App (1st) 112632, ¶ 59. Based on its verdict, the trier of fact found V.M. credible regardless of her
delay in coming forward. We will not substitute our judgment on questions involving the
credibility of a witness. People v. Downin, 357 Ill. App. 3d 193, 202 (2005).
¶ 47 Defendant also argues that V.M.’s testimony is not credible because the State failed to
present any physical evidence to corroborate her testimony. Defendant surmises that there would
be physical evidence if defendant engaged in countless sex acts with V.M. However, the lack of
physical evidence of a sexual assault is not fatal to the State’s case and is not required to prove the
commission of a sex crime. See People v. DuPree, 161 Ill. App. 3d 951, 962 (1987).
¶ 48 B. Prior Bad Acts Evidence
¶ 49 Next, defendant contends that the trial court erred when it allowed the State to introduce
evidence of defendant’s prior bad acts with C.P. This court will not overturn a decision to admit
other-crimes evidence absent an abuse of discretion. People v. Donoho, 204 Ill. 2d 159, 182 (2003).
An abuse of discretion has occurred when the trial court’s decision is arbitrary, fanciful, or
unreasonable or when no reasonable person would take the position adopted by the trial court. Id.
- 14 - ¶ 50 For clarity, we note that the trial court granted the State’s motion in limine on this issue
under two grounds. First, to establish defendant’s propensity under section 115-7.3. Second, the
court allowed the evidence under Illinois Rule of Evidence 404(b) to show defendant’s motive,
intent, design, and a continuing narrative of events.
¶ 51 In general, evidence of other crimes is inadmissible to show propensity. See generally
People v. Smith, 2015 IL App (4th) 130205, ¶ 21. Section 115-7.3 of the Code, however, provides
an exception, permitting other-crimes evidence when the defendant is accused of predatory
criminal sexual assault of a child. 725 ILCS 5/115-7.3(a)(1), (b) (West 2016). Such evidence is
admissible and “may be considered for its bearing on any matter to which it is relevant.” Id. § 115-
7.3(b). The section further states, “[i]n 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.” Id. §115-7.3(c). Other-crimes evidence, upon meeting the
initial statutory requirements, “ ‘is admissible if it is relevant and its probative value is not
substantially outweighed by its prejudicial effect.’ ” Smith, 2015 IL App (4th) 130205, ¶ 21
(quoting People v. Vannote, 2012 IL App (4th) 100798, ¶ 38).
¶ 52 Defendant contends that C.P.’s stipulated testimony should not have been admitted because
those acts occurred after the incidents with V.M. There is no requirement that the other incident
being offered in the other-crimes evidence occur prior to the charged offense. See People v. Wilson,
2015 IL App (4th) 130512, ¶ 79; People v. Johnson, 2020 IL App (1st) 162332, ¶ 48. “ ‘The term
“other-crimes evidence” encompasses misconduct or criminal acts that occurred either before or
after the allegedly criminal conduct for which the defendant is standing trial.’ ” Johnson, 2020 IL
- 15 - App (1st) 162332, ¶ 48 (quoting People v. Spyres, 359 Ill. App. 3d 1108, 1112 (2005)). As such,
C.P.’s testimony was admissible even though it occurred after the incidents involving V.M.
¶ 53 Defendant does not otherwise challenge the admissibility of C.P.’s stipulated testimony as
propensity evidence under section 115-7.3. Such an argument would be futile, given that the
section 115-7.3 factors overwhelming favor admitting C.P.’s testimony as propensity evidence.
There exists a close proximity in time between the two alleged assaults. Defendant stopped
assaulting V.M. in the summer of 2014 when he and her mother ended their relationship. He then
began a relationship with C.P.’s mother in 2015 and began abusing C.P. in December of 2015
through the end of 2016. The degree of factual similarity of the charged offense is almost identical
to C.P.’s allegations. In both instances, defendant abused his position of trust as a father figure by
showing the children pornography and forcing them to perform repeated acts of oral sex. As to
other factors for consideration, it is also highly relevant that both girls were able to describe
defendant’s piercing on his penis.
¶ 54 Rather than challenging the admissibility of C.P.’s stipulated testimony as propensity
evidence, defendant contends the court should not have allowed the evidence for other purposes
under Rule 404, specifically, to show intent, motive, design, and continuing narrative of events.
Evidence that is admissible under section 115-7.3 “may be considered for its bearing on any matter
to which it is relevant.” 725 ILCS 5/115-7.3(b) (West 2016). C.P.’s stipulated testimony was
relevant to establish design and continuing narrative of events under Rule 404. As discussed above,
C.P.’s testimony supports V.M.’s testimony in that it showed defendant engaged in a similar
pattern of misconduct.
¶ 55 As to using C.P.’s stipulated evidence to establish motive and intent, the State concedes
C.P.’s testimony should not have been admitted for this purpose. We agree. Evidence of other acts
- 16 - of sexual misconduct with other children should not be admitted to show intent or motive when
intent or motive are not contested. For example, in People v. Bobo, 278 Ill. App. 3d 130 (1996),
the defendant took a female student into his office, moved his hand to her breast, attempted to kiss
her against her violent protests, and then informed her that if she changed her mind, she knew
where to find him. Bobo held that evidence of other sexual misconduct with students was
unnecessary to show intent, guilty knowledge, accident, or absence of mistake because these
factors were clearly shown by the testimony concerning the act itself. Id. at 133. Here, there was
no question as to whether the acts happened accidentally or with the requisite intent if they
happened at all. Thus, C.P.’s stipulated testimony should not have been admitted to establish
defendant’s motive or intent.
¶ 56 However, we find no error. Again, the evidence was already admissible for propensity,
design, and continuing narrative of events purposes. Whether the evidence should have been
inadmissible for intent and motive purposes would not change that result. The trial court also did
not provide the jury with an admonishment prior to reading C.P.’s stipulated testimony. As such,
the jury was not immediately informed how it should consider this evidence. Defendant never
sought such an admonishment, nor does he argue that an admonishment was required. Therefore,
we find no error in admitting C.P.’s stipulated testimony.
¶ 57 Defendant’s claim is better reviewed under his challenge to the court’s instruction to the
jury on how to consider C.P.’s stipulated testimony. In particular, the court instructed the jury:
“Evidence has been received that the defendant has been involved
in offenses other than those charged in the indictment. This evidence has
been received on the issues of the defendant’s intent, motive, design,
- 17 - continuing narrative of events and propensity, and may be considered by
¶ 58 Defendant concedes that he failed to preserve his challenge to the jury instruction by failing
to object at trial. To preserve an error for review, a party must object at trial and raise the error in
a posttrial motion. People v. Sebby, 2017 IL 119445, ¶ 48. If both actions do not occur, the
defendant has forfeited the issue. Id. However, the plain-error doctrine allows review of
unpreserved errors in two instances: whether the evidence is closely balanced, and the error
threatens to tip the scales of justice against the defendant or the error was so serious that it
threatened the fairness of the trial and the integrity of the judicial process. People v. Piatkowski,
225 Ill. 2d 551, 565 (2007). Defendant contends that this error satisfies the first prong of the plain-
error doctrine because the evidence is closely balanced. Before this court may employ plain-error
review, there must first be a clear and obvious error. Id.
¶ 59 As we have already found, C.P.’s stipulated testimony was admissible to establish
defendant’s propensity, design, and a continuing narrative of events. As such, the court did not err
in including these in the jury instruction. But C.P.’s stipulated testimony should not have been
admissible to establish defendant’s motive and intent. Consequently, the court made a clear and
obvious error by providing the jury with an overbroad instruction. Nevertheless, we find the
evidence is not closely balanced. Therefore, the error is not reversible under the plain-error
doctrine. That is, omitting “motive and intent” from the instruction would not have changed the
result in this trial.
¶ 60 As discussed above, the evidence of defendant’s guilt is overwhelming. V.M. provided
detailed and credible testimony as to defendant’s constant abuse. Defendant claims that the
evidence is closely balanced because the State’s case was based on the credibility of one witness.
- 18 - However, Ashley and C.P. both corroborated V.M.’s testimony that defendant had a silver piercing
on his penis. This fact would likely not be known by either C.P. or V.M. under normal
circumstances. In addition, C.P.’s stipulated testimony provided an almost identical account of
defendant’s abuse. These strikingly similar accusations support V.M.’s testimony. Moreover, the
overbreadth of the instruction could not possibly have prejudiced defendant. As intent and motive
were never contested at trial, including these issues in the instruction was redundant. See People
v. Leaks, 179 Ill. App. 3d 231, 241-42 (1989).
¶ 61 C. Closing Arguments
¶ 62 Defendant next contends the prosecutor made improper arguments at closing argument and
went outside the scope during rebuttal argument. Defendant concedes that he failed to preserve
this issue below but urges this court to consider the issue under the plain-error doctrine. To
preserve errors made in closing arguments, the defendant must raise an objection both at trial and
in his posttrial motion. People v. Enoch, 122 Ill. 2d 176 (1988). Where he fails to do so, the error
is forfeited and will not be considered on review unless it rises to plain error. Ill. S. Ct. R. 615(a).
Plain error may be found where the evidence of guilt is closely balanced or where the alleged error
was seriously prejudicial and prevented the defendant from receiving a fair trial. People v. Hudson,
157 Ill. 2d 401 (1993).
¶ 63 Prosecutors are afforded wide latitude in closing arguments. People v. Wheeler, 226 Ill. 2d
92, 123 (2007). In closing, the prosecutor may comment on the evidence and any fair, reasonable
inferences it yields. People v. Pasch, 152 Ill. 2d 133, 184 (1992). A reviewing court must ask
whether the complained-of comments “engender substantial prejudice against a defendant such
that it is impossible to say whether or not a verdict of guilt resulted from them.” Wheeler, 226 Ill.
2d at 123.
- 19 - ¶ 64 Defendant first takes issue with the following prosecutor’s remark at closing:
“Remember why [V.M.] told you, and I told you she would, she
would tell you why she finally came forward. And now you know, because
you were just read that stipulation between the People of the State of Illinois
and that defendant, when his stepdaughter was eight years old, he began to
sexually abuse her.”
In defendant’s view, the prosecutor’s statement, “explicitly argued that [defendant] admitted to the
allegations in” C.P.’s stipulated testimony. Nowhere in this statement does the prosecutor claim
that defendant admitted to C.P.’s allegations. The above statement needs to be reviewed in the
context of the entire closing statement. The stipulation itself made clear, “if [C.P.] were called to
testify in person her testimony would be as follows.” The jury knew that the parties only stipulated
to C.P.’s testimony. Her testimony did not include a statement that defendant admitted the
allegations. The State emphasized this point in rebuttal when it argued that the stipulation related
to what C.P. would testify to if she testified at trial. Nowhere in any of these statements is a claim
that defendant admitted to the allegations. As such, the State did not commit any error in its closing
arguments on this point.
¶ 65 Defendant next takes issue with the prosecutor’s rebuttal argument. According to
defendant, the prosecutor went outside the scope of the rebuttal argument by reiterating the
arguments made in closing arguments and also reviewed the elements of the offenses. During the
defense’s closing argument, counsel emphasized the lack of physical evidence in the State’s case.
Counsel stated, “[t]he State knows that they don’t have any evidence in this case.” Counsel
described V.M.’s testimony as “incredible” and that the State offered no evidence to “corroborate”
V.M.’s testimony. Defendant’s closing argument invited the State to reiterate the evidence present
- 20 - at trial to establish that it proved each element of the offense beyond a reasonable doubt. See
People v. Vriner, 74 Ill. 2d 329, 344 (1978) (defendant’s counsel invited the complained-of
statement by the prosecutor and cannot, therefore, rely on such statement as error). The State was
free to restate the evidence, explain V.M.’s credibility, and note the corroborating evidence in
response to the defense’s closing argument. Consequently, we find no error in the State’s rebuttal
argument.
¶ 66 D. Evidence of Defendant’s Text Messages
¶ 67 Defendant contends that the screenshots of the text message exchange between he and
Ashley proved that Ashley committed perjury at trial. Specifically, defendant claims the text
messages show that defendant denied V.M.’s allegations when Ashley confronted him. Therefore,
defendant argues Ashley perjured herself when she testified that defendant neither admitted nor
denied V.M.’s accusations after she first confronted him over the phone.
¶ 68 The use of perjured testimony to obtain a criminal conviction violates due process of law.
People v. Olinger, 176 Ill. 2d 326, 345 (1997). Even where the prosecution did not solicit false
testimony, but allows it to go uncorrected when it appears, due process is violated. Napue v.
Illinois, 360 U.S. 264, 269 (1959). A conviction obtained by the knowing use of perjured
testimony, which reasonably could have affected the jury’s verdict, will be set aside. Olinger, 176
Ill. 2d at 345.
¶ 69 As a threshold matter, defendant must demonstrate the text messages he attached to his
posttrial motion establish Ashley made false statements during her trial testimony. The messages
show the following exchange:
“[Ashley]: Answer your phone. It’s an emergency.
- 21 - [Ashley]: Make sure you tell your wife you’re a fucking CHILD
MOLESTER I would hate to see you fuck up her girls the way you fucked
up [V.M.]. You are so lucky you are out of state. Be sure I will be talking
to the police to see if I can press charges against you. I also already talked
to your mother and told her what [V.M.] said.
disconnected.
[Ashley]: I hung up. She said you took a picture and a video of it
Tony. I absolutely believe her and I think you are a fucking liar.
[Defendant]: I understand. She is your daughter. I would believe my
child too. Any parent should. I don’t know what to say. I don’t know why
she would say something like that now. But, no.”
¶ 70 Here, we find the messages do not show that Ashley made false statements in her trial
testimony. None of the messages contain an explicit denial of V.M.’s allegations. The messages
lack any context. Defendant’s claim is completely speculative. There is no indication as to what
Ashley thought defendant was lying about. Defendant’s comment, “But, no” also does not
constitute an explicit denial. At best, it constitutes him denying taking photographs and videos of
V.M., but it does not constitute a denial of the allegations of acts of oral sex (the charged acts).
Consequently, these messages do not affirmatively establish that Ashley made a false statement at
trial.
¶ 71 E. Ineffective Assistance of Counsel
¶ 72 Defendant contends defense counsel provided ineffective assistance for failing to include
exculpatory evidence in C.P.’s stipulated testimony. Defendant claims that counsel should have
- 22 - included the following evidence in the stipulation: (1) defendant denied the allegation when
confronted; (2) C.P.’s mother Natasha reported being skeptical of C.P.’s allegations but knew she
had to report it to protect her children; (3) C.P. thought the allegations were funny and made a
comment about her mother “getting rid of one dad so what was one more”; (4) a roommate lived
with Natasha and defendant that was always home and never reported anything; (5) after making
her allegation, C.P. made comments that defendant did not do it and it was “the other guy”; (6)
Natasha confirmed C.P. likely would have overheard her and defendant fighting about the
allegations in Illinois; (7) Natasha confirmed C.P. had access to defendant’s cell phone and knew
how to use it; (8) Natasha confirmed pornography and nude pictures of defendant may have been
on her phone; (9) Natasha was skeptical about the allegations because she was unable to think
about a time when she left her daughters alone with defendant; and (10) C.P. once walked in on
her uncle and another woman watching pornography.
¶ 73 Upon review, we find the record is insufficient to reach the merits of this claim. Instead,
we hold that the issue is better suited for collateral review in a postconviction petition. The record
before us includes no statements or explanations from trial counsel regarding this evidence.
Consequently, we cannot ascertain counsel’s opinion regarding this evidence or what efforts
counsel made to have this evidence included in the stipulation. Given the incomplete record, we
decline to reach the merits of this argument and instead leave the issue to be developed in a
postconviction proceeding. See People v. Veech, 2017 IL 120649, ¶ 46.
¶ 74 Defendant also reframes three other claims of error as claims of ineffective assistance of
counsel. Those three claims are that counsel provided ineffective assistance: (1) for failing to
obtain and present the text messages between defendant and Ashley regarding his alleged denial
of V.M.’s allegations (supra ¶¶ 67-70); (2) for failing to object to the State’s statements during
- 23 - closing arguments (supra ¶¶ 62-65); and (3) for failing to object to the jury instruction that
informed the jury that it could consider the Wisconsin allegations to show defendant’s motive and
intent (supra ¶¶ 57-60). We have already found that the first two claims do not constitute error.
The only error that we have found is the jury instruction. However, we find that counsel is not
ineffective for failing to object to the jury instruction because defendant was not prejudiced by the
instruction. As discussed above, the stipulation was properly admitted at trial to show defendant’s
propensity to commit sex crimes. The inclusion of motive and intent in the jury instruction was
insignificant. In light of this and the overwhelming evidence, defendant was not prejudiced by
counsel’s failure to object to the jury instruction. People v. Graham, 206 Ill. 2d 465, 476 (2003)
(if an ineffective-assistance claim can be disposed of because the defendant suffered no prejudice,
we need not determine whether counsel’s performance was deficient).
¶ 75 F. Cumulative Error
¶ 76 Defendant contends that cumulative errors deprived him of a fair trial. He references all
the errors which he raised above to contend that those errors amount to cumulative error. “[W]here
errors are not individually considered sufficiently egregious for an appellate court to grant the
defendant a new trial, but the errors, nevertheless, create a pervasive pattern of unfair prejudice to
the defendant’s case, a new trial may be granted on the ground of cumulative error.” People v.
Howell, 358 Ill. App. 3d 512, 526 (2005). “However, the cumulative errors that warrant such an
extreme result must themselves be extreme.” People v. Desantiago, 365 Ill. App. 3d 855, 871
(2006). “There generally is no cumulative error where the alleged errors do not amount to
reversible error on any individual issue.” People v. Green, 2017 IL App (1st) 152513, ¶ 118.
¶ 77 Of all the issues raised by defendant, we have only found one to amount to error. That error
is in the jury instruction regarding the use of C.P.’s stipulated testimony to establish defendant’s
- 24 - motive and intent. We have already found the error does not warrant reversal. Consequently, this
individual error cannot constitute cumulative error.
¶ 78 G. Sentencing
¶ 79 Defendant argues his sentences are excessive because the court failed to adequately
consider his lack of criminal history, educational history, family support, and potential for
rehabilitation in mitigation. Given that defendant failed to present any evidence refuting the court’s
consideration of these factors and the sentences are within the statutory ranges, we find the court
did not abuse its discretion in sentencing defendant.
¶ 80 The court’s sentencing determination is entitled to great deference and will not be altered
absent an abuse of discretion. People v. Alexander, 239 Ill. 2d 205, 212 (2010). “A sentence will
be deemed an abuse of discretion where the sentence is ‘greatly at variance with the spirit and
purpose of the law, or manifestly disproportionate to the nature of the offense.’ ” Id. (quoting
People v. Stacey, 193 Ill. 2d 203, 210 (2000)). Generally, we will not substitute our judgment for
that of the circuit court as the circuit court had the opportunity to consider defendant’s credibility,
demeanor, general moral character, mentality, social environment, habits, and age. Id. at 212-13.
We presume that a sentence that falls within the statutory range is not excessive. People v. Busse,
2016 IL App (1st) 142941, ¶ 27.
¶ 81 Here, the trial court imposed a sentence within the statutory range. Defendant was
convicted of four counts of predatory criminal sexual assault of a child. Each offense is a Class X
felony carrying a sentencing range of 6 to 60 years’ imprisonment. See 725 ILCS 5/11-1.40(a)(1),
(b) (West 2016). Those sentences were required to be served consecutively to one another. 730
ILCS 5/5-8-4(d)(2) (West 2016). Accordingly, we presume the sentence is proper and not an abuse
- 25 - of discretion. Busse, 2016 IL App (1st) 142941, ¶ 27. This presumption is only overcome by
affirmative evidence showing the court failed to consider the mitigating factors. Id.
¶ 82 Defendant does not cite any affirmative evidence to show the court did not sufficiently
consider the mitigating factors of his lack of criminal history, educational history, family support,
and potential for rehabilitation. To the contrary, the court stated that it considered the factors in
mitigation. The court explained that it considered the PSI, which contained the relevant
information about defendant’s educational and criminal history. The court also considered the
character letters submitted on behalf of defendant. However, the court concluded that the factors
in aggravation outweighed the factors in mitigation. Therefore, the record establishes that the court
adequately considered the relevant factors in mitigation, and it did not abuse its discretion in
imposing defendant’s sentences.
¶ 83 III. CONCLUSION
¶ 84 For the foregoing reasons, we affirm the judgment of the circuit court of Will County.
¶ 85 Affirmed.
- 26 -