2025 IL App (2d) 230378-U No. 2-23-0378 Order filed September 29, 2025
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Kane County. ) Plaintiff-Appellee, ) ) v. ) No. 21-CF-1874 ) JESUS J. MACIEL FACIO, ) Honorable ) Alice C. Tracy, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE JORGENSEN delivered the judgment of the court. Presiding Justice Kennedy and Justice Mullen concurred in the judgment.
ORDER
¶1 Held: Trial court issued inconsistent verdicts on two counts of aggravated criminal sexual abuse and, thus, we vacate the conviction and sentence issued for one count. The evidence was otherwise sufficient to sustain defendant’s remaining convictions. Affirmed in part and vacated in part.
¶2 After a bench trial, defendant, Jesus J. Maciel Facio, was convicted of predatory criminal
sexual assault of a child (720 ILCS 5/11-1.40(a)(1) (West 2020)), aggravated criminal sexual abuse
(id.§11-1.60(b)), and indecent solicitation of a child (id. §11-6(a)). Defendant appeals, raising
claims concerning inconsistent verdicts/double jeopardy and the sufficiency of the evidence. For
the following reasons, we affirm in part and vacate in part. 2025 IL App (2d) 230378-U
¶3 I. BACKGROUND
¶4 On November 15, 2021, defendant was charged by indictment with predatory criminal
sexual assault of a child (count I), five counts of aggravated criminal sexual abuse (counts II
through VI), and one count of indecent solicitation of a child (count VII). The charges concerned
defendant and E.C., his stepdaughter, and his alleged touching with his hand of E.C.’s sex organ
(counts I, V, and VI), breast (counts II and III), and buttock (count IV), as well as his solicitation
of E.C. that she touch his sex organ (count VII). Count I alleged that E.C. was under age 13 at the
time of the offense, while counts II through VII alleged that E.C. was under age 18. As relevant
to this appeal, counts II and III were worded identically, except that count II charged that defendant
committed “an act” (i.e., that he touched E.C.’s breast with his hand) on or about “June 12, 2016[,]
through June 11, 2019,” whereas count III alleged that he committed the act on or about “June 12,
2016[,] through July 31, 2021.” The allegations that defendant touched E.C.’s breast were general
and did not reference specific incidents. Specifically, count II alleged, in relevant part, “on or
about June 12, 2016[,] through June 11, 2019, *** defendant, a family member of E.C., committed
an act of sexual conduct with E.C., a person under 18 years of age when the act was committed, in
that the defendant touched the breast of E.C. with his hand for the purpose of sexual arousal or
gratification of the defendant or the victim.” Count III, in turn, alleged, in relevant part, “on or
about June 12, 2016[,] through July 31, 2021, *** defendant, a family member of E.C., committed
an act of sexual conduct with E.C., a person under 18 years of age when the act was committed, in
that the defendant touched the breast of E.C. with his hand for the purpose of sexual arousal or
gratification of the defendant or the victim.”
¶5 Trial commenced on June 2, 2023. E.C. testified that her birthday is June 12, 2007, and
that she was almost 16 years old. She is the eldest child and has five younger siblings. She and
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one sibling have a different father, while defendant is the father of three of the remaining children.
Defendant lived with her mother and siblings at their home in St. Charles. When she was around
nine years old, defendant made her feel uncomfortable on multiple occasions. E.C. described a
time when she was in middle school (between 2016 and 2020), which she said was when she was
12 to 14 years old. She and defendant were alone in a car. E.C. testified that defendant was
driving, and she was in the passenger seat; they were going to pick up a seafood platter from a
restaurant. The restaurant was around 10 minutes from their home, and, while she had not been
inside the restaurant, they had eaten food from there before. She testified that defendant put his
hand down her shorts and started touching her “in and around” her vagina. E.C. was wearing
underwear, and defendant’s hand went underneath it, was feeling around, and went inside her
vagina. After they picked up the seafood tray, E.C. placed it on her lap so that defendant could
not touch her on the ride home.
¶6 At the house, defendant made E.C. uncomfortable in the living room and her bedroom. In
the living room, she, her mother, defendant, one of her brothers, and two of her sisters were
watching a movie on the “L-shaped” couch. In terms of dates, she believed it happened when she
was in middle school and recalled that one of her younger brothers, D.M., was not yet born. She
could not specifically recall her brother’s birthday, as there are “too many” to remember. E.C.
testified that defendant called her over to where he was sitting, put a blanket over both of them,
and put his hand down her pajama bottoms and underwear and felt around her vagina. Her family
was seated on the other side of the couch.
¶7 One day, in her bedroom, E.C. was sitting in a beanbag chair wearing “onesie” style
pajamas. Specifically, in middle school, she sometimes wore before and to bed a one-piece pajama
outfit that had a zipper and one button at the top. Defendant came into the room, unzipped the
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onesie, and touched her breasts. She did not remember how old she was, and her family members
were in other rooms of the house. When asked if there were other times that defendant touched
her breasts, E.C. said it happened multiple times, but could not recall specifically any other
memorable incidents. She testified that, on one occasion, she could not recall when, defendant
pulled her onto his lap and forced her to kiss him. On another occasion, after he had moved out
and he came to pick up his kids, he gave E.C. a hug and touched her buttocks.
¶8 E.C. testified that defendant tried to force her to touch him one night when he came home
late from work and was drunk. Her mother was at work. In the living room, defendant asked E.C.
to rub his stomach and then, while she was doing so, grabbed her hand and tried to force it down
his pants. She could not recall her age. Defendant wore Mickey Mouse sweatpants at the time.
The State asked E.C. whether, when defendant was trying to force her to touch him, his clothes
changed in any way or if anything happened to them, and E.C. responded, “Um, not that I
remember.” She testified that defendant did not successfully place her hand on his private part or
on any part of his body. Defendant pulled his pants down in front of her, and she pushed him off
of her, got up, and went to her room. E.C. testified that defendant followed her into her room and
tried to get her to go upstairs to sleep with him.
¶9 When defendant touched her, it made her “extremely uncomfortable.” He would tell her
not to tell anyone because her mother needed him, no one would believe her, and people would
think that she was a “slut.” She called or texted her mother once, when she was at work, to tell
her defendant made her uncomfortable. However, she did not tell her parents or another adult
about the incidents while they were happening because she did not want defendant taken away and
wanted her siblings to have a normal childhood with their father. Around October 2021, several
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months after defendant had moved out of the house, she told her mother what had happened, her
mother contacted the police, and E.C. was interviewed at the child advocacy center.
¶ 10 E.C. further testified that, when defendant lived in the house, he lied to her mother about
her behavior, it was an ongoing problem, and, when she “talked back” about how he was lying, it
would cause a lot of fights and the fighting did not stop until he moved out. More specifically,
according to E.C., defendant stated that she was irresponsible, failed to do chores, or had “talked
back;” sometimes it was true, but, “a lot of times,” it was not. She felt that defendant did not treat
her fairly, because “I was a young child and he expected me to help babysit and take care of his
kids and make meals and things like that and feed them even though I was, um, a little young for
that and he was the adult of the house.” E.C. agreed, however, that the children were her siblings
and that she was between ages 12 and 14 at the time.
¶ 11 Catherine Scott testified that she is E.C.’s mother. She married defendant in January 2015,
and, at the time of trial, they were getting divorced. Defendant is the biological father of three of
her children. She clarified their birthdates, specifying that D.M. (the brother whose birthday E.C.
could not recall) was born on October 31, 2018.
¶ 12 In August 2020, Scott and defendant separated, and defendant moved out of the home.
Despite the separation, defendant and Scott had an informal arrangement whereby defendant
would see his children and either pick them up from home in the afternoon or on Saturdays. On
October 8, 2021, after a conversation with E.C., Scott went to the Kane County Sheriff’s Office
and, then, on October 21, 2021, the child advocacy center. Scott agreed that October 2021 was
the first time E.C. told her about the incidents with defendant. However, E.C. texted her once,
when she was at work, saying that defendant made her feel uncomfortable and asked her to come
upstairs to his bedroom with him because he was lonely. Scott told E.C. not to do that, because
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that did not “sound right,” and Scott spoke to defendant about it. The only thing E.C. reported to
her was that she was uncomfortable, so Scott did not contact the police. She agreed that E.C. and
defendant did not “get along especially well.” Some of Scott’s fights with defendant, prior to their
separation, occurred because he treated E.C. unfairly and wanted Scott to issue harsh punishments
for minor infractions when E.C. was only eight or nine years old. She did not recall E.C.
complaining that defendant made her babysit the younger children.
¶ 13 Scott confirmed that they frequently ordered a seafood tray from Las Islas Marias, a
restaurant in Elgin, that was approximately 15 minutes away from their home in St. Charles. She
also testified to her work history and schedule, as well as childcare arrangements.
¶ 14 Deanna Velazquez testified that she is employed by the sheriff’s department and is a
detective assigned to the child advocacy center. Someone else conducted E.C.’s interview, but
Velazquez observed it. Near the end of the interview, in addition to defendant, E.C. mentioned
sexual contact with another male, but the video malfunctioned and cutoff at that point.
¶ 15 The State rested, and defendant moved for a directed finding on all counts. The court asked
the State to respond by specifying the evidence it had presented to satisfy its burden on each count.
With respect to count II, the State noted E.C.’s testimony that, when she was younger than in
middle school, although she could not recall her age, defendant came into her bedroom while she
was sitting on a beanbag chair and he unzipped the onesie that she was wearing and touched her
chest. Regarding count III, the State referenced E.C.’s testimony,
“[I]n general that the defendant touched her multiple times in the chest. But the
bedroom incident that I’ve described earlier was what she described as the big specific
incident that she could remember as to being touched on the chest by the defendant. And
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as to being touched on the chest, I believe, is when she testified that she was touched by
the defendant from when she was 12 to 14 years old.”
¶ 16 The court granted defendant’s motion as to counts III and IV (the State conceded that it
had not met its burden on count IV). With respect to count III, the court stated that it did “not find
that the victim stating she has been touched on the breast numerous times is specific enough
information to sustain a finding of guilt on that particular count.”
¶ 17 Defendant testified through a court-appointed Spanish interpreter. Since 2015, he has been
employed working 12-hour shifts with Welch Brothers, which provides concrete drainage tubes,
as well as (until 2020) working a part-time job with Greco & Sons. He considered himself the
primary breadwinner for the family. When working both jobs, he had very little time at home,
although he had off on Saturdays. Defendant testified that he has three children with Scott and,
while he had a good relationship with one of his stepdaughters, that was not the case with E.C., as
they “always fought.” Counsel asked defendant what they fought about or what caused stress on
their relationship, but the court sustained the State’s hearsay objections to those questions and
struck any answers that had been received. Defendant explained that Scott had another child after
their separation, but he is not the father.
¶ 18 Defendant married Scott in 2015, and he helped purchase the home in St. Charles, although
it is in Scott’s name, as well as pay for back taxes, remodeling, and repairs to a residence she
owned in Poplar Grove. Defendant agreed that he knew the Elgin restaurant Las Islas Marias and
testified that it was around 20 to 25 minutes from the St. Charles residence. He testified that they
ate there occasionally but, as it was a seafood restaurant and not much to the family’s liking, they
did not eat there frequently. Defendant testified that he never drove with E.C. to Las Islas Marias,
never touched her in a car, and never put his hand in or around her vagina in a vehicle.
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¶ 19 Defendant testified that the living room included a television in front of an “L-shaped”
couch. Between his two jobs, it was very rare for him to be in the living room while the rest of
the family was awake, but, on his evenings off of work, the family would all be there. It was the
busiest room in the house, with bouncy chairs and pack-and-play cribs for the younger children,
and there were almost always multiple people in the room. There were occasions during which
the entire family would watch movies or television in the living room. Defendant was asked if he
ever used a blanket on the couch, and he responded, “If I was cold, I would put the blanket on or
maybe one of the kids will use it.” Counsel asked, “So there was a blanket?” Defendant answered,
“No. There was not a blanket. It’s just that sometimes, the baby, they had a blanket that they liked,
so they would bring it with them.” Defendant testified that he never put a blanket over himself
and E.C. in the living room or touched her breasts or vagina on the L-shaped couch.
¶ 20 Defendant testified that E.C. had a lofted bed and beanbag chair in her room. He testified
that he never entered her room and touched her breasts. While the youngest children would wear
onesie-style pajamas with a full-length zipper, the older children would wear pants and a big shirt
as pajamas. He never saw his stepchildren wearing onesies, including when E.C. was age 9 or 10
or thereafter.
¶ 21 Defendant testified that he never tried to force E.C. to kiss him, never entered her bedroom
drunk, and he never tried to force her hand to touch his penis. He testified that he is 6 feet 4 inches
tall, and he stood up to demonstrate in court that the lofted bed in her room was, for him,
approximately neck height. Underneath the lofted bed, there was a desk, bookcase, and chair, and
while it was easy for a small child to go underneath and sit down, he would have to bend over to
access it.
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¶ 22 Since his separation from Scott in 2020, he saw only his biological children on Saturdays
or occasionally during the week in the afternoon.
¶ 23 The defense rested, and the court heard closing arguments. We note that, in part, defendant
asserted that E.C. had raised similar allegations against another man and her allegations here might
be confusing defendant with that man. The State, in turn, emphasized that E.C. had no motive to
fabricate her testimony, whereas defendant “definitely has a motive and bias to fabricate and make
things sound better for him, and it’s because he doesn’t want to be convicted of crimes.”
¶ 24 On June 28, 2023, the court found defendant guilty of all remaining charges. The court
summarized E.C.’s testimony and found:
“The Court finds the victim extremely credible. She recalls certain acts in very
much detail like going to get the seafood tray, what defendant was wearing, the one incident
that it happened on the couch. And when she gave the answer that she did not want to tell
because she wanted her siblings to have a normal childhood, I find that a very believable
answer from her. She didn’t tell—say she didn’t want to tell because of any other reason
the defendant had said to her. And I found that very credible. Again, on the incident on
the couch, she said that happened before [D.M.] was born. *** [E.C. was] 11 years of age
when he was born. So that happened before when she was [age] 11 or before”
¶ 25 The court noted that E.C.’s testimony was somewhat corroborated by Scott, such as with
respect to the seafood platter, and that defendant also acknowledged that, despite his busy work
schedule, there were times he was home with the family to watch movies and that he was familiar
with the seafood restaurant. As such, the court found that the case came down to credibility
determinations. It noted that E.C. was not impeached; rather, her credibility was questioned only
regarding the timing of her coming forward and her disagreements with defendant. But the court
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found she had a “very valid” reason for not speaking out when the events happened and had a
“very specific memory about very specific acts.” In contrast, the court found:
“As far as the defendant’s manner while testifying, he looked down a lot. I did not
find him to be very credible.
He certainly had a reason, a motive, to fabricate his testimony. He contradicted
himself, I believe, I don’t have the transcript of his testimony but on direct—or cross, I’m
not sure which one, he said, first he used a blanket on the couch when he was cold. And
then he said in the next sentence or answer, only the babies used the blankets. So to me he
was trying to lessen his involvement in this.”
¶ 26 In sum, the court found E.C.’s testimony positive and credible, even if contradicted by
defendant, and entered a judgment against him on counts I, II, V, VI, and VII.
¶ 27 The court denied defendant’s motion for a new trial and, on September 14, 2023, sentenced
him to seven years’ imprisonment on count I (count V merged with count I), consecutive to: (1)
concurrent four-year terms of imprisonment on counts II and VI, and (2) two years’ imprisonment
on count VII. Defendant appeals.
¶ 28 II. ANALYSIS
¶ 29 A. Impact of Directed Finding
¶ 30 Defendant argues first that the court’s directed finding on count III estopped a guilty
finding on the “exact same charge” in count II and that double jeopardy precluded him from being
convicted under count II. He asserts that the verdicts were inconsistent and that, although this
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issue was not raised in his posttrial motion, it should be reviewed for second-prong plain error.
For the following reasons, we agree. 1
¶ 31 A trial court should grant a motion for directed verdict only if all of the evidence, viewed
in the nonmovant’s favor, so overwhelmingly favors the movant that no contrary verdict could
possibly stand. People v. Hancock, 2014 IL App (4th) 131069, ¶ 24. We review de novo a court’s
ruling on a motion for directed verdict. Id. Similarly, whether verdicts are legally inconsistent is
a question of law, which we review de novo. People v. Price, 221 Ill. 2d 182, 189 (2006).
Moreover, the plain-error doctrine “bypasses normal forfeiture principles and allows a reviewing
court to consider unpreserved error when either (1) the evidence is close, regardless of the
seriousness of the error, or (2) the error is serious, regardless of the closeness of the evidence.”
People v. Herron, 215 Ill. 2d 167, 186-87 (2005). Even if forfeited, second-prong plain-error
review may be applied to a claim that verdicts are inconsistent. People v. Bush, 2022 IL App (3d)
190283, ¶ 102. However, we must first assess whether there is error, i.e., whether the verdicts for
counts II and III are inconsistent.
¶ 32 Here, both counts II and III alleged aggravated criminal sexual abuse based upon the same
conduct. Specifically, they alleged that defendant, E.C.’s family member, committed “an act” of
sexual conduct with E.C., who was under age 18 at the time, in that he touched her breast with his
hand for the purpose of sexual arousal or gratification. See 720 ILCS 5/11-1.60(b) (West 2020).
As previously noted, the indictment contained identical language for the charged conduct in both
counts, with the sole exception being the date range within which the conduct allegedly occurred.
1 We note that defendant’s assertion that the court’s verdicts on counts II and III were inconsistent,
suffices to frame the issue for our analysis, and we need not delve into the areas of collateral estoppel and
double jeopardy.
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Notably, count III had a broader range (on or about June 12, 2016, through July 31, 2021) than
count II (on or about June 12, 2016, through June 11, 2019). Defendant argues that, because the
alleged offenses were charged identically and the burdens of proof were the same, the court’s
finding that the State failed to sustain its burden on count III was completely at odds and
inconsistent with its decision to not also grant a directed finding on count II and, ultimately, to
allow continued prosecution and a conviction on that count.
¶ 33 The State contends that this issue is forfeited but, in any event, argues that the court’s
directed finding on count III was based on its determination that E.C.’s testimony that defendant
touched her breast multiple times was insufficient to support a verdict for a “second act” of
defendant touching E.C.’s breast. It notes that the court did not make a finding that any specified
element was absent in count III. The State further notes that, when asked by the court to explain
the evidence that supported each count, the State pointed to E.C.’s testimony about being touched
in her bedroom while wearing a onesie to support count II, while, for count III, it referenced her
testimony that defendant touched her breasts “multiple times,” even though she could provide
specific details about only the bedroom incident. According to the State, the court’s findings,
therefore, simply directed, based upon the way the evidence came out at trial, that only one count
could be sustained for defendant touching E.C.’s breast.
¶ 34 “Verdicts are legally inconsistent when an essential element of each crime must, by the
very nature of the verdicts, have been found to exist and to not exist, even though the offenses
arise out the same set of facts.” Bush, 2022 IL App (3d) 190283, ¶ 103. Although it concerned
unanimous verdicts and, thus, is not directly on point, we find some persuasive guidance in People
v. Filipiak, 2023 IL App (3d) 220024. There, an indictment identically charged two counts of
predatory criminal sexual assault of a child, except that one count specified only that it was for “a
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different act than alleged in” the other count. Although multiple acts were discussed at trial, the
jury convicted the defendant of only one count. On appeal, the court agreed with the defendant
that, because the State did not adequately distinguish between the two counts, his acquittal on one
count made it impossible to tell if the jury unanimously convicted him of the same specific conduct
for the second count. Id. ¶¶ 16-18.
¶ 35 Here, we likewise have both multiple charges and acts raised at trial, but the State did not
differentiate, in either the charges themselves or argument to the court, the counts as being based
on different acts. When ruling on count III, the court announced that it did “not find that the victim
stating she has been touched on the breast numerous times is specific enough information to sustain
a finding of guilt on that particular count.” Yet, when advocating that the evidence supported
count III, the State did not merely rely upon evidence that defendant touched E.C.’s breast
“multiple times.” Rather, it argued to the court that the evidence in support of count III was E.C.’s
testimony “in general that the defendant touched her multiple times in the chest. But the bedroom
incident that I’ve described earlier [i.e., when arguing regarding count II] was what she described
as the big specific incident that she could remember as to being touched on the chest by the
defendant. And as to being touched on the chest, I believe, is when she testified that she was
touched by the defendant from when she was 12 to 14 years old.” (Emphasis added.) In other
words, the State again urged the court to find it sustained its burden on count III by relying
primarily on the bedroom incident. Thus, although the court referenced insufficient evidence to
support being touched multiple times, the judgment itself encompassed the bedroom incident.
Indeed, again, the language in the indictment was identical for both counts except, notably, that
the date range for count III subsumed and/or included the date range for count II. As such, by
entering its judgment on count III, the court effectively determined that the State did not satisfy its
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burden of establishing that defendant committed “an act” of touching E.C.’s breast with his hand
for the purpose of arousal between June 12, 2016[,] and July 31, 2021, which is also when the
bedroom incident allegedly occurred. Accordingly, we agree that it was legally inconsistent to
find, with respect to count II, that the State did satisfy its burden of establishing that defendant
touched E.C.’s breast with his hand for the purpose of arousal within that period, i.e., between June
12, 2016, and June 11, 2019. As such, under second-prong plain error, defendant’s conviction and
four-year sentence for count II must be vacated.
¶ 36 B. Sufficiency of Evidence
¶ 37 Defendant next challenges the sufficiency of the evidence to sustain his convictions. We
review a challenge to the sufficiency of the evidence in the light most favorable to the State, asking
whether any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. People v. Collins, 106 Ill. 2d 237, 261 (1985). It is not our job to retry the
defendant on appeal, and we may not substitute our judgment for that of the trier of fact as to
witness credibility or the weight to give any testimony. See People v. Phelps, 211 Ill. 2d 1, 7
(2004); People v. Jenk, 2016 IL App (1st) 143177, ¶ 46. Rather, “in a bench trial, it is for the trial
judge, sitting as the trier of fact, to determine the credibility of witnesses, to weigh evidence and
draw reasonable inferences therefrom, and to resolve any conflicts in the evidence.” People v.
Siguenza-Brito, 235 Ill. 2d 213, 228 (2009). Moreover, it is well-established that “the testimony
of a single witness, if positive and credible, is sufficient to convict, even though it is contradicted
by the defendant.” Id.
¶ 38 First, defendant argues that the State failed to prove the elements of sexual arousal or
gratification required by counts II and VII. We have already vacated his conviction on count II,
and, thus, we consider here only count VII, the conviction for indecent solicitation of a child. With
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respect to that count, defendant notes that, to prove indecent solicitation of a child, the State needed
to establish that he solicited E.C. to touch his sex organ for the purpose of sexual arousal or
gratification. 720 ILCS 5/11-6(a), 11-1.60(b) (West 2020). Here, he argues, proof of this element
was entirely missing, because the State fail to establish that he even solicited her to touch his sex
organ, let alone for sexual arousal or gratification. He notes that E.C. testified only that defendant
came home from work drunk, asked her to rub his stomach, and then grabbed her hand and tried
to force it down his pants. Further, she did not see his clothes change in any way, and she
confirmed that he did not successfully place her hand on his private part. E.C. ultimately pushed
him off and left the room. Citing People v. Ostrowski, 394 Ill. App. 3d 82, 92 (2009), defendant
suggests that the inference of sexual arousal could be rebutted by his alleged intoxication, and, in
any event, that there was simply no testimony that he intended for E.C. to touch his sex organ, that
her hand was forced down the front of his pants, as opposed the side or the rear, or whether
defendant was wearing underpants under his sweatpants. Finally, the fact that E.C. did not
remember anything changing or happening to defendant’s clothing suggests that there was no
erection or other evidence of sexual arousal or gratification. Thus, defendant argues, while the
evidence viewed in the State’s favor might demonstrate inappropriate conduct, it failed to
demonstrate beyond reasonable doubt that his actions were for purposes of sexual gratification or
arousal. We disagree.
¶ 39 The evidence concerning this charge, viewed in the State’s favor, was sufficient to sustain
defendant’s conviction. E.C. testified that defendant came home from work drunk and that Scott
was at work. She and defendant were in the living room, he wore Mickey Mouse sweatpants, and
no one else was around. Defendant asked E.C. to rub his stomach and then he grabbed her hand
and tried to force it down his pants. Defendant pulled his pants down, and E.C. pushed him off
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and went to her room. Defendant followed E.C. and asked her to go to his bedroom to sleep with
him. E.C. texted Scott and told her defendant was making her uncomfortable, and Scott
corroborated that she once received a text from E.C. that defendant had been in her room and made
her uncomfortable because he asked her to go upstairs with her, as he felt lonely. At that time,
Scott told E.C. that the behavior did not “sound right.” We note that the element of sexual arousal
or gratification can be established by circumstantial evidence, and intent can be inferred from the
conduct. In re Matthew K., 355 Ill. App. 3d 652, 655 (2005) (“When the accused is an adult, a
factfinder can infer that an accused intended sexual gratification”). Moreover, the allegations in
this case are markedly different from those in Ostrowski, where we determined that, based on
numerous circumstances, no rational trier of fact could have found that kisses between a
grandfather and granddaughter at a public festival while playing on the ground were given for the
purpose of sexual gratification or sexual arousal, including because the conduct was performed in
a public place in close proximity to numerous witnesses and all witnesses testified that the
defendant was visibly intoxicated. Ostrowski, 394 Ill. App. 3d at 95. Here, the alleged conduct is
more serious than kissing, and the inference of sexual gratification is not rebutted by public
behavior, as defendant and E.C. were alone. The fact that E.C. did not witness a change to
defendant’s clothing could reflect only that his solicitation was ultimately unsuccessful and it does
not warrant a conclusion that his intent was not one of sexual gratification or arousal.
¶ 40 Defendant next argues that the evidence was unreasonable, improbable, and simply
insufficient to establish beyond a reasonable doubt that he was guilty of count I, predatory criminal
sexual assault. Specifically, where the charge required the State to prove that he touched E.C.’s
sex organ when she was under age 13 (720 ILCS 5/11-1.40(a)(1) (West 2020)) and where
defendant testified that he never touched her breasts or vagina on the L-shaped couch, he argues
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that the evidence was insufficient to sustain his conviction. Defendant notes that, according to
E.C., he touched her on the couch when she was in middle school (when she was between 12 to
14 years old), when her mother and siblings were also present, and when D.M. was not yet born.
She recalled that D.M. was born during the 2020 pandemic shutdown but was confused and could
not recall his actual birthdate. Thus, defendant contends, regardless of her confusion over D.M.’s
birthdate, E.C. was not confused that it allegedly happened in middle school, when she could have
been over age 13. Further, defendant argues, the conviction must be called into question because
of the “bizarre circumstances” E.C. described. He points out that E.C. and Scott agreed that E.C.
and defendant had many arguments but, notwithstanding that fact and that he allegedly touched
her on the couch with her mother and other family members seated on an adjacent portion of the
couch, E.C. never complained about defendant to Scott until October 2021, even though defendant
had moved out more than a year earlier (August 2020). Given the improbable evidence here, he
argues, we should reverse his conviction. For the following reasons, we disagree.
¶ 41 As the State notes, E.C. testified that she did not say anything to her mother because she
wanted her siblings to have a normal childhood with their father and because defendant told her
that her mother needed him, no one would believe her, and people would think she was a “slut.”
The court found E.C. “extremely credible,” her reasons for not speaking out “very valid,” and her
memory of the acts “very specific.” Indeed, the court could have reasonably found that E.C.’s
delay in reporting was attributable to “fear of the offender or to the shame, guilt and
embarrassment. *** In sexual assault cases involving family relationships, the victim’s credibility
is not lessened if there is no immediate outcry.” In re M.G., 2024 IL App (1st) 232106, ¶ 29.
Defendant makes much of the fact that, while these reasons might make sense while the alleged
events were happening, they simply do not credibly support E.C.’s delayed reporting for more than
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one year after defendant was out of the home, particularly given their known contentious
relationship. Simply put, the trial court rejected this argument, found E.C. credible, and did not
find the existence of reasonable doubt based upon the delayed reporting. It is not our function to
reweigh witness credibility or the evidence (Siguenza-Brito, 235 Ill. 2d at 228), and we do not
believe that E.C.’s testimony was inherently incredible. Finally, we note that, despite E.C.’s
testimony that the event occurred in middle school, the court believed her testimony that the event
happened before D.M. was born. The court then specifically found, on that basis, that E.C. was
under age 13 when the event happened, because the evidence established that D.M. was born on
October 31, 2018, making E.C. age 11 or younger at the time of the assault. We cannot attribute
different weight to the evidence or conclude that no rational finder of fact could have found
defendant guilty. Id.; Collins, 106 Ill. 2d at 261.
¶ 42 Finally, defendant challenges the sufficiency of the evidence for count VI, pertaining to his
alleged touching of E.C.’s sex organ in the car on the way to a restaurant. He again argues that
the evidence was so unreasonable and improbable as to create reasonable doubt as to his guilt.
Defendant notes that E.C.’s testimony was vague and that she testified only that, sometime when
she was in middle school and while driving to pick up a seafood tray, defendant reached over and
put his hands down her shorts. He notes there was no detail about the season, the clothing they
purportedly wore, the vehicle’s interior, whether anything was said, what time of day or evening
it occurred, etc. As such, given the dearth of detail, all defendant could do to defend himself was
take the stand and deny the act itself and that he ever drove E.C. in a vehicle to the restaurant.
Defendant again notes that the lack of surrounding facts, coupled with the fact that, despite a
running feud that was known within the household, E.C. registered no complaints about this to
Scott until October 2021, when defendant had been out of the home for more than one year.
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Defendant argues that, in total, this scenario was simply so improbable and contained such a
paucity of facts that we should reverse his conviction.
¶ 43 We agree with the State that the evidence regarding count VI was not as vague as defendant
portrays it. E.C. testified that she and defendant drove to a seafood restaurant that was near her
home in St. Charles to pick up a seafood tray. Although she could not recall the name, she and her
family had food from there before. She explained that she sat in the front passenger seat when
defendant reached over, put his hands down her pants and underwear, and touched her in and
around her vagina, felt around “down there,” and was “actually going inside.” After they picked
up the tray, E.C. put the tray on her lap so that defendant could not touch her again. Defendant
and Scott both testified that, indeed, the family had ordered food from a seafood restaurant in
Elgin, near their St. Charles home, and that it included seafood trays. Again, in sum, it was the
trial court’s function to weigh the credibility of the evidence and, viewing the evidence in the
State’s favor, we cannot conclude no rational trier of fact could have found defendant guilty.
¶ 44 We note that defendant takes issue with the fact that the trial court based its adverse
credibility assessment of him on the bases that he “looked down” and had a motive to fabricate
testimony to escape conviction. Indeed, he notes, he was in a linguistically and culturally
challenging position, had no criminal history whatsoever but was facing very serious charges, and
his only “linguistic lifeline” to the proceedings was a Spanish interpreter. Defendant contends that
he may have had many reasons to look down during his testimony other than a lack of credibility
and, further, that the presumption of innocence is “in serious trouble” if a trier of fact may draw a
negative credibility inference or motive to fabricate simply because a defendant charged with
serious offenses takes the stand to testify.
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¶ 45 Candidly, defendant raises interesting concerns. However, we presume that trial courts
know and follow the law (see, e.g., In re Alexander R., 377 Ill. App. 3d 553, 556-67 (2007)) and,
here, we presume that the court based its credibility assessment on appropriate factors and
accounted for the language barrier and any delays that the translation process might have on
defendant’s physical presentation while testifying. We read the court’s credibility comments here
as simply explaining why it found E.C. “extremely credible” and as somewhat echoing the State’s
closing argument about why E.C. lacked a motive to lie, whereas defendant had much to lose.
Again, the trial court was in a much better position than we are to determine witness credibility
overall, as well as the weight to afford the witnesses’ testimonies.
¶ 46 III. CONCLUSION
¶ 47 For the reasons stated, we vacate defendant’s conviction and sentence on count II but
otherwise affirm the judgment of the circuit court of Kane County.
¶ 48 Affirmed in part; vacated in part.
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