2023 IL App (3d) 220024
Opinion filed October 27, 2023 ____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 18th Judicial Circuit, ) Du Page County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-22-0024 v. ) Circuit No. 18-CF-2506 ) STEPHAN J. FILIPIAK, ) Honorable ) Michael W. Reidy, Defendant-Appellant. ) Judge, Presiding. __________________________________________________________________________
JUSTICE BRENNAN delivered the judgment of the court, with opinion. Justices McDade and Albrecht concurred in the judgment and opinion. __________________________________________________________________________
OPINION
¶1 Defendant, Stephan J. Filipiak, appeals from his convictions for predatory criminal sexual
assault of a child against two child victims. Defendant argues initially that his conviction as to one
of the victims must be reversed because he was denied his right to a unanimous verdict where the
indictments, jury instructions, and verdict forms failed to differentiate between the two counts that
related to that same victim, rendering it impossible to ascertain on which of the two offenses the
jury acquitted defendant. Arguing that double jeopardy then precludes retrial as to these unanimity
of verdict counts, defendant asks that we vacate the unauthorized sentence of mandatory natural life as to the unrelated victim’s count and remand for resentencing. We reverse in part, vacate in
part, and remand for resentencing.
¶2 I. BACKGROUND
¶3 Defendant was charged with three counts of predatory criminal sexual assault of a child
(720 ILCS 5/11-1.40(a)(1) (West 2018)) for acts alleged to have been committed on October 6,
2018, during a sleepover at defendant’s house. Counts I and III were alleged to have been
committed against Br.G., and count II was alleged to have been committed against Br.G.’s sister,
Be.G. Counts I and III were charged identically, except count III stated it was “a different act than
alleged in Count [I].”
¶4 The case proceeded to a jury trial on October 5, 2021. Br.G.’s videotaped victim sensitive
interview from October 17, 2018, was admitted at trial pursuant to section 115-10 of the Code of
Criminal Procedure of 1963 (725 ILCS 5/115-10 (West 2020)). During the interview, Br.G. was
asked if she knew why she was being interviewed. Br.G. pointed to her pelvis, indicating that
defendant had touched her there. Br.G. explained how, on the night of the sleepover, she was
sleeping on the couch when defendant woke her, placed his finger under her shirt, and touched
inside her vagina. She was not wearing any underwear at the time. She also stated that, before the
couch incident, she took a shower with defendant’s assistance and defendant also digitally
penetrated her vagina.
¶5 The parties stipulated that during a subsequent recorded interview on August 5, 2021, Br.G.
stated that defendant did not enter the shower and did not touch her on the couch.
¶6 At the time of her trial testimony, Br.G. was eight years old. She testified at trial that during
a sleepover at defendant’s home, she was changing in the bedroom after showering when defendant
entered the room and digitally penetrated her vagina. Later that night, Br.G. fell asleep on a couch
2 and was awakened by defendant and digitally penetrated again. Br.G. further testified she did not
remember recanting her statements during the August 5, 2021, interview.
¶7 Be.G. was 10 years old at the time of trial and testified that defendant digitally penetrated
her in the shower the night of the sleepover.
¶8 Defendant testified that he did wake Br.G. to take a shower but did not inappropriately
touch her. Br.G. and Be.G. were showering together when defendant realized they did not have
clean clothes or towels. Defendant entered the bathroom with permission from their father. When
he entered, he noticed the children were not standing under the water spray, so he pointed the
showerhead to spray them before leaving. After they finished their shower, they went to watch
television in the bedroom. Eventually, Br.G. returned to the living room, and defendant went to
his bedroom. Defendant testified that he did not touch either Br.G. or Be.G. inappropriately.
¶9 The jury was given forms for all three counts, indicating that it could find defendant guilty
or not guilty of predatory criminal sexual assault of a child. The verdict form for count I stated,
“finger in vagina-1-[Br.G.],” and the verdict form for count III stated, “finger in vagina-2-[Br.G.].”
No jury instructions were given as to the difference between the two counts, and the jury was not
instructed that they needed to be unanimous as to specific conduct for each count. The State
referred to the alleged post-shower and couch conduct in its closing argument but did not clarify
which count related to which conduct. The jury found defendant guilty as to counts I and II but not
guilty as to count III.
¶ 10 Defendant filed several posttrial motions, including a motion to vacate the finding of guilt
notwithstanding the verdict, but did not specifically raise an unanimity of verdict argument. The
court denied the posttrial motions and sentenced defendant to natural life in prison, pursuant to
section 11.1.40(b)(1.2) of the Criminal Code of 2012 (720 ILCS 5/11-1.40(b)(1.2) (West 2014)
3 (mandating natural life sentence where defendant convicted of predatory criminal sexual assault
of two or more persons)). Defendant’s motion to reconsider the sentence was denied.
¶ 11 II. ANALYSIS
¶ 12 On appeal, defendant argues he was denied his right to a unanimous jury verdict.
Specifically, defendant contends that, because the State failed to adequately distinguish between
counts I and III, his acquittal on count III makes it impossible to tell if the jury unanimously
convicted him of specific conduct. Defendant acknowledges that he did not preserve this issue for
appeal and asks that we review the matter pursuant to the plain error doctrine. “[T]he 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). It is necessary to determine first whether the verdict forms created a jury
unanimity issue, as there can be no plain error if there is no error. See People v. Johnson, 218 Ill.
2d 125, 139, 141-42 (2005).
¶ 13 “The test of the sufficiency of a verdict is whether the jury’s intention can be ascertained
with reasonable certainty from the language used.” People v. Mack, 167 Ill. 2d 525, 537 (1995).
“In determining the meaning of a verdict, all parts of the record will be searched and interpreted
together.” People v. Caffey, 205 Ill. 2d 52, 121 (2001). The parties have not provided us with, and
we are not aware of, any controlling case law directly addressing this situation. However, we find
People v. Smith, 233 Ill. 2d 1 (2009), People v. Scott, 243 Ill. App. 3d 167 (1993), and cases from
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2023 IL App (3d) 220024
Opinion filed October 27, 2023 ____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 18th Judicial Circuit, ) Du Page County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-22-0024 v. ) Circuit No. 18-CF-2506 ) STEPHAN J. FILIPIAK, ) Honorable ) Michael W. Reidy, Defendant-Appellant. ) Judge, Presiding. __________________________________________________________________________
JUSTICE BRENNAN delivered the judgment of the court, with opinion. Justices McDade and Albrecht concurred in the judgment and opinion. __________________________________________________________________________
OPINION
¶1 Defendant, Stephan J. Filipiak, appeals from his convictions for predatory criminal sexual
assault of a child against two child victims. Defendant argues initially that his conviction as to one
of the victims must be reversed because he was denied his right to a unanimous verdict where the
indictments, jury instructions, and verdict forms failed to differentiate between the two counts that
related to that same victim, rendering it impossible to ascertain on which of the two offenses the
jury acquitted defendant. Arguing that double jeopardy then precludes retrial as to these unanimity
of verdict counts, defendant asks that we vacate the unauthorized sentence of mandatory natural life as to the unrelated victim’s count and remand for resentencing. We reverse in part, vacate in
part, and remand for resentencing.
¶2 I. BACKGROUND
¶3 Defendant was charged with three counts of predatory criminal sexual assault of a child
(720 ILCS 5/11-1.40(a)(1) (West 2018)) for acts alleged to have been committed on October 6,
2018, during a sleepover at defendant’s house. Counts I and III were alleged to have been
committed against Br.G., and count II was alleged to have been committed against Br.G.’s sister,
Be.G. Counts I and III were charged identically, except count III stated it was “a different act than
alleged in Count [I].”
¶4 The case proceeded to a jury trial on October 5, 2021. Br.G.’s videotaped victim sensitive
interview from October 17, 2018, was admitted at trial pursuant to section 115-10 of the Code of
Criminal Procedure of 1963 (725 ILCS 5/115-10 (West 2020)). During the interview, Br.G. was
asked if she knew why she was being interviewed. Br.G. pointed to her pelvis, indicating that
defendant had touched her there. Br.G. explained how, on the night of the sleepover, she was
sleeping on the couch when defendant woke her, placed his finger under her shirt, and touched
inside her vagina. She was not wearing any underwear at the time. She also stated that, before the
couch incident, she took a shower with defendant’s assistance and defendant also digitally
penetrated her vagina.
¶5 The parties stipulated that during a subsequent recorded interview on August 5, 2021, Br.G.
stated that defendant did not enter the shower and did not touch her on the couch.
¶6 At the time of her trial testimony, Br.G. was eight years old. She testified at trial that during
a sleepover at defendant’s home, she was changing in the bedroom after showering when defendant
entered the room and digitally penetrated her vagina. Later that night, Br.G. fell asleep on a couch
2 and was awakened by defendant and digitally penetrated again. Br.G. further testified she did not
remember recanting her statements during the August 5, 2021, interview.
¶7 Be.G. was 10 years old at the time of trial and testified that defendant digitally penetrated
her in the shower the night of the sleepover.
¶8 Defendant testified that he did wake Br.G. to take a shower but did not inappropriately
touch her. Br.G. and Be.G. were showering together when defendant realized they did not have
clean clothes or towels. Defendant entered the bathroom with permission from their father. When
he entered, he noticed the children were not standing under the water spray, so he pointed the
showerhead to spray them before leaving. After they finished their shower, they went to watch
television in the bedroom. Eventually, Br.G. returned to the living room, and defendant went to
his bedroom. Defendant testified that he did not touch either Br.G. or Be.G. inappropriately.
¶9 The jury was given forms for all three counts, indicating that it could find defendant guilty
or not guilty of predatory criminal sexual assault of a child. The verdict form for count I stated,
“finger in vagina-1-[Br.G.],” and the verdict form for count III stated, “finger in vagina-2-[Br.G.].”
No jury instructions were given as to the difference between the two counts, and the jury was not
instructed that they needed to be unanimous as to specific conduct for each count. The State
referred to the alleged post-shower and couch conduct in its closing argument but did not clarify
which count related to which conduct. The jury found defendant guilty as to counts I and II but not
guilty as to count III.
¶ 10 Defendant filed several posttrial motions, including a motion to vacate the finding of guilt
notwithstanding the verdict, but did not specifically raise an unanimity of verdict argument. The
court denied the posttrial motions and sentenced defendant to natural life in prison, pursuant to
section 11.1.40(b)(1.2) of the Criminal Code of 2012 (720 ILCS 5/11-1.40(b)(1.2) (West 2014)
3 (mandating natural life sentence where defendant convicted of predatory criminal sexual assault
of two or more persons)). Defendant’s motion to reconsider the sentence was denied.
¶ 11 II. ANALYSIS
¶ 12 On appeal, defendant argues he was denied his right to a unanimous jury verdict.
Specifically, defendant contends that, because the State failed to adequately distinguish between
counts I and III, his acquittal on count III makes it impossible to tell if the jury unanimously
convicted him of specific conduct. Defendant acknowledges that he did not preserve this issue for
appeal and asks that we review the matter pursuant to the plain error doctrine. “[T]he 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). It is necessary to determine first whether the verdict forms created a jury
unanimity issue, as there can be no plain error if there is no error. See People v. Johnson, 218 Ill.
2d 125, 139, 141-42 (2005).
¶ 13 “The test of the sufficiency of a verdict is whether the jury’s intention can be ascertained
with reasonable certainty from the language used.” People v. Mack, 167 Ill. 2d 525, 537 (1995).
“In determining the meaning of a verdict, all parts of the record will be searched and interpreted
together.” People v. Caffey, 205 Ill. 2d 52, 121 (2001). The parties have not provided us with, and
we are not aware of, any controlling case law directly addressing this situation. However, we find
People v. Smith, 233 Ill. 2d 1 (2009), People v. Scott, 243 Ill. App. 3d 167 (1993), and cases from
other jurisdictions instructive.
¶ 14 In Scott, defendant was charged with three counts of delivering a controlled substance to
three different undercover officers at separate times, but only a single verdict form was presented
4 to the jury. Scott, 243 Ill. App. 3d at 168-69. The court determined this was error because it was
possible
“that only four jurors believed that defendant was guilty of delivering a controlled
substance to one of the officers, four other jurors believed that defendant was
guilty of delivering a controlled substance to another officer and the remaining
four jurors believed that defendant was guilty of delivering a controlled substance
to the third officer.” Id. at 169.
That possibility permitted “a unanimous guilty verdict to have been rendered without all 12 jurors
agreeing that defendant delivered a controlled substance to a particular recipient as set forth in
each count of the indictment.” Id.
¶ 15 In Smith, a general verdict form was provided to the jury, allowing them to find defendants
guilty of murder if they found any one of the theories alleged in the indictment, which included
intentional, knowing, and felony murder. Smith, 233 Ill. 2d at 26-27. The court concluded that
“where *** it is impossible to tell from the general verdict whether defendant was
actually convicted on each count in the indictment, it is error for the trial courts to
make that presumption. Therefore, *** because defendants were sentenced based
on the presumption that they were found guilty of intentional murder, defendants
were prejudiced ***.” (Emphases in original.) Id. at 27.
¶ 16 Here, we cannot reasonably ascertain the jury’s intention from the verdicts and record.
Defendant was indicted for two counts of predatory criminal sexual assault of a child as to Br.G.
The indictments alleged identical acts of sexual penetration, describing them as follows. Count I
alleged that defendant “placed his finger in the vagina of [Br.G].” Count III alleged that defendant
“placed his finger in the vagina of [Br.G], said act being a different act than alleged in Count [I].”
5 At trial, the State presented evidence that defendant digitally penetrated Br.G twice on the evening
of October 6, 2018: once proximate to taking a shower, and once while on the couch. Two sets of
identical verdicts forms were submitted to the jury pertaining to the predatory criminal sexual
assault charges for Br.G., which were not differentiated, except with parentheticals indicating (“1”)
and (“2”). Nor did the State in any way suggest to the jury at closing which of the verdict forms
pertained to which of the alleged acts of penetration. We are therefore incapable of ascertaining
with reasonable certainty whether the jury intended to convict defendant of the shower conduct
while acquitting him of the couch conduct or vice versa. See Mack, 167 Ill. 2d at 537. Indeed, just
as with the concern raised in Scott, the jury could have rendered a guilty verdict without actual
unanimity.
¶ 17 The State does not argue on appeal that the record somehow informs which of the verdict
forms apply to the specific acts testified to at trial. Instead, the State argues that the jury presumably
understood that each verdict was for a specific offense and knew they needed to be unanimous in
rendering a verdict as to a specific offense. We reject this argument for the reasons outlined above
and, in addition, note that here the jury was not instructed that it needed to be unanimous as to
specific conduct. See, e.g., Harp v. Commonwealth, 266 S.W.3d 813, 818 (Ky. 2008) (“ ‘[W]hen
the evidence is sufficient to support multiple counts of the same offense, the jury instructions must
be tailored to the testimony in order to differentiate each count from the others.’ ” (quoting Bell v.
Commonwealth, 245 S.W.3d 738, 744 (Ky. 2008))). Moreover, while the State correctly observes
that general verdict forms are permitted and do not require the jury to agree upon a specific incident
to sustain a conviction, general verdict forms were not submitted to the jury here. The State cannot
submit multiple nongeneral verdict forms, exposing defendant to increased criminal liability, and
then claim the jury was not required to agree upon a specific act to sustain the conviction. See,
6 e.g., State v. Marcum, 480 N.W.2d 545, 552 (Wis. Ct. App. 1992) (“Having charged three separate
acts, [the State] was bound to prove *** each charge. It could not use the volitional act of one
charge as an alternative means for a guilty verdict on another charge.”).
¶ 18 To avoid the unanimity issue here, the State could have specified in the verdict forms which
count related to which specific conduct, e.g., (“couch”) and (“shower”). The failure to somehow
distinguish the two charges for the jury’s deliberation, however, makes it impossible to reasonably
ascertain whether the jury unanimously decided whether either offense was committed by
defendant.
¶ 19 As indicated previously, though the jury unanimity issue was not preserved, the plain-error
doctrine bypasses normal forfeiture principles 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.
Herron, 215 Ill. 2d at 186-87. An error under the second prong of the plain error doctrine has been
equated with structural error or a “systemic error which serves to ‘erode the integrity of the judicial
process and undermine the fairness of the defendant’s trial.’ ” People v. Glasper, 234 Ill. 2d 173,
197-98 (2009) (quoting Herron, 215 Ill. 2d at 186). “[T]he right to a unanimous verdict is among
the most fundamental of rights in Illinois.” People v. McGhee, 2012 IL App (1st) 093404, ¶ 24.
“[A] verdict lacking juror unanimity is ‘structural error subject to automatic reversal.’ ” People v.
Jackson, 2022 IL 127256, ¶ 47 (quoting People v. Thompson, 238 Ill. 2d 598, 610 (2010)).
¶ 20 The parties agree that our holding on the unanimity issue necessitates the reversal of
defendant’s conviction on count I and remand of the cause for resentencing as to count II. Double
jeopardy precludes the State from retrying either count I or III. The double jeopardy clause of the
fifth amendment provides that no person shall “be subject for the same offence to be twice put in
jeopardy of life or limb.” U.S. Const., amend. V; see also Ill. Const. 1970, art. I, § 10. “The
7 prohibition against double jeopardy ‘protects against three distinct abuses: (1) a second
prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after
conviction; and (3) multiple punishments for the same offense.’ ” People v. Henry, 204 Ill. 2d 267,
283 (2003) (quoting People v. Placek, 184 Ill. 2d 370, 376-77 (1998)). “[T]he law attaches
particular significance to an acquittal.” United States v. Scott, 437 U.S. 82, 91 (1978). Because
defendant was tried and acquitted on count III under circumstances where we cannot ascertain
which offense the acquittal pertains to, retrying defendant for either offense would violate the
double jeopardy clause.
¶ 21 III. CONCLUSION
¶ 22 The judgment of the circuit court of Du Page County as to count I is reversed; the sentence
as to count II is vacated and remanded for resentencing.
¶ 23 Reversed in part, vacated in part, and remanded.
8 People v. Filipiak, 2023 IL App (3d) 220024
Decision Under Review: Appeal from the Circuit Court of Du Page County, No. 18-CF- 2506; the Hon. Michael W. Reidy, Judge, presiding.
Attorneys James E. Chadd, Santiago A. Durango, Thomas A. Karalis, and for Amber Hopkins, of State Appellate Defender’s Office, of Ottawa, Appellant: for appellant.
Attorneys Robert B. Berlin, State’s Attorney, of Wheaton (Lisa Anne for Hoffman and Kristin M. Schwind, Assistant State’s Attorneys, of Appellee: counsel), for the People.