People v. Foster

2022 IL App (2d) 210556-U

Opinion

2022 IL App (2d) 210556-U No. 2-21-0556 Order filed September 27, 2022

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)(l). ______________________________________________________________________________

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. 15-CF-1333 ) ORANE R. FOSTER, ) Honorable ) David Paul Kliment, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE JORGENSEN delivered the judgment of the court. Presiding Justice Brennan and Justice Schostok concurred in the judgment.

ORDER

¶1 Held: The evidence was sufficient to sustain both of defendant’s convictions for aggravated criminal sexual abuse, and the convictions did not violate one-act, one- crime principles. Affirmed.

¶2 After a jury trial, defendant, Orane R. Foster, was convicted of two counts of aggravated

criminal sexual abuse (720 ILCS 5/12-16(c)(1)(i) (West 2014)) and sentenced to two concurrent

three-year terms of imprisonment. Defendant appeals, arguing that (1) the evidence was

insufficient to sustain his convictions, and (2) alternatively, one of his convictions should be

vacated under the one-act, one-crime doctrine. We affirm. 2022 IL App (2d) 210556-U

¶3 I. BACKGROUND

¶4 A. First Trial and Direct Appeal

¶5 In 2015, defendant was charged with five counts of predatory criminal sexual assault and

two counts of aggravated criminal sexual abuse of victim, S.L., in that he touched her sex organ.

After a jury trial, defendant was found guilty of four counts of predatory criminal sexual assault

of a child under 13 years of age (720 ILCS 5/11-1.40(a)(1) (West 2014)) and two counts of

aggravated criminal sexual abuse of a victim under 13 years of age (720 ILCS 5/11-1.60(c)(1)(i)

(West 2014)). The trial court sentenced defendant to six years’ imprisonment on each of the four

counts of predatory criminal sexual assault, to run consecutively, and three years’ imprisonment

on both counts of aggravated criminal sexual abuse, to run concurrently with each other but

consecutively to the sentences imposed for predatory criminal sexual assault, for a total of 27

years’ imprisonment.

¶6 On direct appeal, defendant: (1) challenged the sufficiency of the evidence on three of the

four counts of predatory criminal sexual assault; (2) alleged, in the alternative, one-act, one-crime

violations; and (3) alleged certain voir dire violations. This court determined that the evidence

was sufficient to sustain defendant’s convictions for two counts of sexual penetration with a finger

and two counts of sexual penetration with an object. People v. Foster, 2020 IL App (2d) 170683,

¶¶ 36-44. Turning to the third issue, which we reviewed for prong-one plain error, we concluded

that there was a Zehr violation (People v. Zehr, 103 Ill. 2d 472, 477-78 (1984)) and, because the

evidence, though sufficient, was closely balanced, there was plain error. Id. ¶¶ 60-63 (as S.L. did

not “tell the same story that she earlier told the section 115-10 [(725 ILCS 5/115-10 (West 2016)]

witnesses,” whose testimony, along with defendant’s, was consistent, the case was “a contest of

credibility between the accounts of the section 115-10 witnesses and that of the defendant, and

-2- 2022 IL App (2d) 210556-U

credibility was the only basis on which this case could be decided.”). Accordingly, we reversed

and remanded for a new trial and did not reach the one-act, one-crime issue. Id. ¶¶ 63-65.

¶7 B. Second Trial

¶8 1. Pretrial Rulings

¶9 Certain pretrial rulings issued prior to the first trial remained in effect for the second trial.

Specifically, the trial court had allowed the State to introduce, as substantive evidence under

section 115-10 of the Code of Criminal Procedure of 1963 (Code) and provided S.L. testified at

trial, S.L.’s prior statements made to Jazmin Lopez, Patricia (Patty) Sanchez, Celia Sanchez, and

Pam Ely. The court also granted the State’s motion to admit medical hearsay, and Dr. Raymond

Davis was also permitted to testify, pursuant to section 115-13 of the Code (725 ILCS 5/115-13

(West 2020)) about S.L.’s hearsay statements.

¶ 10 2. State’s Case-in-Chief

¶ 11 The second trial commenced on July 19, 2021. The State’s theory of the case was that, in

August 2015, S.L., age six and while on a trip to Disney World with her father, Sergio L., and his

girlfriend, Jazmin, disclosed that defendant had been touching her private parts. Defendant, age

22, had moved into her mother’s home in Aurora that summer. When S.L. returned to Aurora with

her father and Jazmin, they went to her grandmother, Celia’s, home and S.L. told Celia and her

aunt, Patty, that defendant had been touching her private parts. Afterwards, family members

contacted the police. S.L. was subsequently interviewed by Ely at the Kane County Child

Advocacy Center and told Ely that defendant came to her room at night and hurt her and she

wanted him out of her home. Dr. Davis examined S.L., and the exam was normal.

¶ 12 a. Sashonie (Sasha) M.

-3- 2022 IL App (2d) 210556-U

¶ 13 Sashonie (Sasha) M., S.L.’s mother, works as a customer-care specialist and had one child,

S.L., who was born on February 3, 2009. She has lived in a two-bedroom apartment in Aurora for

about seven years. Starting in June 2015, defendant temporarily moved into Sasha’s apartment.

He was to live in the apartment for about 60 days before returning to college. Sasha knew

defendant because he was her then-best friend, Ashley Washington’s, cousin. Defendant’s father

had “kicked” defendant out of his home.

¶ 14 Defendant lived in Sasha’s apartment for 63 days, sleeping on a couch in the living room.

S.L. slept in her own room at the time. Defendant worked in a factory during the day, and Sasha

worked from 8 a.m. to 4:30 p.m. She had a babysitter for S.L.

¶ 15 While defendant lived with Sasha, Sasha would go to the Dollar Store across the street and

leave S.L. with defendant. Sasha would be gone for no longer than 10 minutes. The Dollar Store

shares a parking lot with Sasha’s apartment. When Sasha went to the store, S.L. was in bed.

During the summer, her bedtime was 8 or 9 p.m. The first time that Sasha went to the store that

summer, S.L. was asleep but, when Sasha returned, S.L. was awake. She was not upset or crying

when Sasha arrived home.

¶ 16 One day, when defendant first moved in in June, Sasha was in the kitchen, while defendant

and S.L. were in the living room. S.L. was on a pillow close to defendant’s lap. S.L. looked

uncomfortable and scared. Sasha called S.L. to the kitchen because she had previously told S.L.

not to sit on anybody’s lap. In July 2015, Sasha was vacuuming her bedroom late one afternoon

and S.L. ran inside the bedroom with a weird look that Sasha had never seen. She questioned S.L.

about the look, but S.L. appeared to be in shock, did not say anything, and kept nodding her head.

Defendant was inside the apartment at the time.

-4- 2022 IL App (2d) 210556-U

¶ 17 In the summer of 2015, S.L. went to Disney World with Sergio and Jazmin. Sergio did not

live with Sasha but would visit with S.L.

¶ 18 On cross-examination, Sasha testified that, before the summer of 2015, she discussed many

times with S.L. about good touches and bad touches. Defendant never volunteered to babysit S.L.

¶ 19 During the summer of 2015, Sasha dated Trinell. Trinell did not live with Sasha but

sometimes spent the night in her bedroom.

¶ 20 Sasha never noticed scratches on S.L.’s legs or marks on her neck. S.L. did not complain

about scratches or bruises. That summer, S.L. “possibly” had problems with urination, and Sasha

took her to the doctor. However, S.L. had prior problems with urination.

¶ 21 On August 19, 2015, Sasha spoke with investigator Ely at the police department and told

Ely that she believed Sergio and Jazmin fabricated the allegations against defendant and stated that

there was no way that defendant could have touched S.L. because Sasha never left him alone with

S.L. Sasha testified that she meant that she never left defendant alone with S.L. for extended

periods.

¶ 22 DCFS placed S.L. with Patty. About one year later, S.L. was returned to Sasha. Prior to

the Disney trip, Sasha had cut off Sergio and Jazmin from physically contacting S.L. but they were

permitted to call S.L.

¶ 23 In 2015, S.L. never told Sasha that defendant hit her, choked her, touched her vagina with

a pen, or touched her vagina with his fingers. Nor did S.L. tell Sasha that defendant tried to put

his private part in her “booty” or threaten her.

¶ 24 Currently, DCFS is involved in a case with Sasha, specifically a domestic battery case

where S.L. is the alleged victim.

¶ 25 b. S.L.

-5- 2022 IL App (2d) 210556-U

¶ 26 S.L., age 12 at the time of the second trial, testified that she was six years old in the summer

of 2015. That summer, defendant lived in her apartment and slept on the living room couch. He

worked and drove a red car. Sasha worked during the day, and she went outside, such as to the

store, three times. S.L. was in the house with defendant. S.L. viewed defendant as an uncle.

¶ 27 When defendant lived with Sasha and S.L., S.L. had “touching problems” with him. He

touched S.L.’s vagina with his pen or his fingers. The pen was S.L.’s bubble pen, with a pen at

the bottom and bubbles on top. Defendant touched S.L.’s vagina with the pen more than two times

during the night, in her bedroom. She felt scared and did not know what to do. After a while, it

started to burn. Defendant also touched S.L.’s vagina with his fingers, “on the top” of her

underwear or whatever else she was wearing. This occurred during the evening while she was in

bed. S.L. wore a gown, pajamas, or shorts and a t-shirt. Defendant’s fingers moved up and down.

This occurred more than one time. S.L. was scared. Defendant threatened to kill her if she told

Sasha. S.L. did not tell her mom. S.L. liked defendant but did not like what he was doing.

¶ 28 In 2017, S.L. saw defendant in court. She could not recall if she stated at that time that she

did not know if defendant had a job.

¶ 29 In the summer of 2015, S.L. went to Disney World with Sergio and Jazmin. She could not

recall if she showed Jazmin a scratch on her leg. S.L. could also not recall if she told Jazmin that

defendant hurt her. However, the next day, S.L. told Sergio. S.L. acknowledged that she stated in

a video that she first told Jazmin and that, in May 2017, she stated that she did not think she told

Jazmin. Also, prior to the second trial, she told prosecutors that she did not tell Jazmin in Florida.

She told her father first, and she told Jazmin later when they were in Illinois. She told other people

about the touching problems with defendant, including Celia, Jazmin, Sergio, and Patty. In May

2017, S.L. stated that she only told Sergio.

-6- 2022 IL App (2d) 210556-U

¶ 30 Jazmin scratched S.L. on the leg with a pen cap. She did so intentionally because she was

mad at S.L. S.L. could not recall telling Jazmin that defendant scratched her with his fingernail or

telling Patty that the dog scratched her leg. S.L. told Jazmin that she did not tell Sasha what

defendant had done because she did not want her mother to get in trouble.

¶ 31 S.L. had issues with defendant, including that he was messy, slept on the only good couch,

and prevented her from watching television because he was on the couch.

¶ 32 S.L. could not recall if, after returning from Florida and dropping off Sergio at his friend’s

house, she told Jazmin in the car that defendant tried to put his private part in her booty. She did

tell Jazmin that her pee burned but did not tell her that it hurt to pee because defendant put things

in her booty. She told Jazmin that Sasha took her to the doctor, who gave her cream.

¶ 33 In Illinois, S.L. told Jazmin that defendant had choked her in the daytime in the bathroom

while her mother was vacuuming. It hurt a little bit, and defendant told S.L. to have respect. S.L.

did not tell Sasha about the choking incident; rather, she just ran into her mother’s room and looked

at her. S.L. told Sergio about the choking incident while they were in Florida.

¶ 34 While in the car alone with Jazmin, S.L. told Jazmin that she was asleep in Sasha’s bed

when she heard loud voices and went into the living room. She did not tell Jazmin that she saw

defendant with two naked men. S.L. did not see two naked men but saw two girls who were

clothed. Defendant took S.L. with him to drop off the two women, and then he brought her home.

¶ 35 S.L. did not tell Jazmin that defendant tried to tie her up or that he hit her. The only hitting

incident with defendant was the choking incident during which he slapped her face. The slap hurt

a little, and defendant did not hit that hard. S.L. did not tell Jazmin that defendant put “it” in her

booty. She told prosecutors that defendant poked her in the “butt hole” and could not recall later

saying she was not sure that it ever happened.

-7- 2022 IL App (2d) 210556-U

¶ 36 Defendant poked S.L.’s vagina with a bubble pen, and she told Jazmin this when S.L. made

a group disclosure after returning to Illinois. In 2017, S.L. stated that the bubble pen was used

only for writing and blowing bubbles. She testified at the second trial that this is what she used it

for. She could not recall if she stated at the first trial that it was not used another way. Nor could

S.L. recall denying that defendant touched her with the bubble pen.

¶ 37 S.L. recalled telling investigator Ely that defendant told her not to tell anyone and that he

said it in a scary voice. S.L. could not recall going to a doctor to discuss the touching problems

with defendant, telling the doctor that defendant told her to not to tell anyone or else he would

choke her, or telling the doctor that defendant tried to tie her arms with a belt while she was on the

couch on her stomach.

¶ 38 c. Pamela Ely

¶ 39 On August 19, 2015, Ely, an investigator for the Kane County Child Advocacy Center, a

division of the Kane County State’s Attorney’s office assigned to investigate child abuse,

conducted a child forensic interview of S.L., which spanned about 30 minutes. The interview was

recorded and transcribed, and a video recording of the interview was played for the jury and

transcripts were provided to the jury. Ely also visited S.L.’s home and took photographs. One

photograph depicted a bubble pen in a drawer.

¶ 40 On cross-examination, Ely testified that S.L. never stated that defendant choked her with a

belt, and she never mentioned that her anus was touched. S.L. stated that she did not tell her

mother what had occurred because she did not want defendant to get into trouble. S.L. told Ely

that defendant was lazy, did not clean, ate Chinese food all the time, used the only couch that

worked, and watched television.

-8- 2022 IL App (2d) 210556-U

¶ 41 Ely spoke to Sasha, who told Ely that the alleged sexual abuse could not have occurred

because she never left S.L. alone with defendant. When S.L. referenced “bad spots” during the

interview, she was seated and pointed downwards.

¶ 42 During the recorded interview, S.L. stated that she was six years old and that she lived with

her mother and her uncle, Orane Foster. She wanted defendant out of her house because he does

“bad stuff” at night while S.L. is sleeping and when her mother is grocery shopping. It hurts S.L.

S.L. never told her mother because she does not want to get defendant in trouble. Defendant lived

with Sasha and S.L. because his parents kicked him out.

¶ 43 Defendant hurt S.L. in “bad spots,” meaning where she goes “potty.” S.L. called the part

where she goes potty her vagina. Defendant poked her with his finger outside her clothing.

However, sometimes defendant touched her on the skin where S.L. goes potty. Defendant touched

S.L. where she goes potty more than one time. He always did it at night while S.L. was in bed.

S.L. discussed that her pee burned and that defendant only did it at night and, when it “burns a lot

I wake up and he is just acting like [he] didn’t do it and then he comes back” and does it. Defendant

also “trie[d] to do it with a pen.” He poked it where S.L. goes potty. Defendant “poke[d]s it like

really hard.” Defendant poked her with a black bubble pen twice. Defendant would tell S.L. not

to tell anyone and not to tell her mother. He said it “really scary.”

¶ 44 S.L. further stated that defendant worked during the day and had a red car. He was mean

to her mother because he never cleaned, only ate Chinese food, and lay on the only couch that

worked. S.L. told Jazmin, Patty, and Celia about defendant.

¶ 45 d. Jazmin Porras

¶ 46 Jazmin Porras testified that she dated Sergio in 2015. During the Disney World trip that

summer, Jazmin spoke with S.L. while they waited for a ride at the EPCOT theme park. S.L. told

-9- 2022 IL App (2d) 210556-U

Jazmin that she hurt herself playing on the railings, but it did not hurt as much as this, at which

point S.L. pointed to a scratch on her inner thigh. Jazmin asked what happened, and S.L. replied

that defendant hurt her. She kept saying that she did not want to get her mother in trouble and that

defendant hurts her.

¶ 47 The next morning, S.L. had a conversation with Sergio and then the three spoke together.

S.L. told Sergio and Jazmin that defendant was mean to her and touched her in her vagina with his

fingers. She also stated that Sasha was at the grocery store at night when it occurred.

¶ 48 After they returned to Illinois, while Jazmin drove S.L. to Celia’s house, S.L. stated that it

burned when she urinated and that Sasha had taken her to the doctor. S.L. then related that

defendant put his private part in her booty and that it hurt. She appeared embarrassed. At Celia’s

house, Patty took S.L. inside and spoke to her. Afterwards, Patty came out crying and stated that

she was going to call the police and DCFS.

¶ 49 At the time, Jazmin did not know defendant. S.L. related that defendant touched her while

she slept and that, after she awoke, he would run to the kitchen. She also mentioned that defendant

was mean to her, ate all her food, and once choked her. S.L. further stated that defendant put his

fingers in her vagina.

¶ 50 On cross-examination, Jazmin testified that, prior to the Disney trip, S.L. was at her home

a lot and Jazmin discussed with her good and bad touches. Later, Jazmin and Sergio became less

friendly with Sasha, and they had not seen S.L. for about two months immediately prior to the trip

because Sasha would not allow it.

¶ 51 Jazmin denied cutting S.L. or using a pen cap to cut her thigh. Jazmin previously wrote in

a letter that S.L. stated that defendant hit her when she made loud noises and touched her when

she was asleep.

- 10 - 2022 IL App (2d) 210556-U

¶ 52 During the drive to Celia’s house, S.L. stated that she told Sasha that it hurt when she

urinated because defendant “put it in her booty” and that Sasha took S.L. to the doctor, who gave

her cream. S.L. told Jazmin that Sasha said it hurt because S.L. did not wipe properly, and S.L.

replied that it hurt because defendant “puts things in my booty.” Also on the drive to Celia’s

house, S.L. told Jazmin that she awoke one night and saw defendant and two men in the living

room. She could not recall if S.L. said that the men were naked or if she said that there were also

two naked women there. S.L. told Jazmin that she told the group that they were nasty.

¶ 53 S.L. never told Jazmin that defendant tried to tie her up and did not recall if S.L. told her

that defendant poked her with a pen or threatened her. Jazmin also could not recall if S.L. stated

that defendant poked her vagina with a pen. She also could not recall her testimony that S.L. never

said anything about a pen.

¶ 54 e. Patricia (Patty) Sanchez

¶ 55 Patty (S.L.’s paternal aunt) testified that, on August 18, 2015, she spoke to S.L. at Celia’s

house. She asked S.L. to tell her what she told Sergio and Jazmin, and S.L. replied that defendant

hurts her. She would be in bed and would feel defendant start to touch her. He used his fingers to

touch her private part and would try to put his private part inside her private part. S.L. pointed to

her vagina and said that defendant did not touch her anywhere else. She stated that this happened

at night when her mother went to buy groceries. Defendant covered her mouth so that she could

not scream when he tried to put his private in her.

¶ 56 Patty could not recall if S.L. stated that defendant tried to put anything else in her besides

his private and his fingers but did recall that S.L. told her that defendant tried to put his private

party in her booty and that it hurt a lot. S.L. told Patty that defendant tried to choke her. The

scratch on her leg was from defendant’s fingernail.

- 11 - 2022 IL App (2d) 210556-U

¶ 57 S.L. also said that she did not tell Sasha because defendant told her that he would keep

hurting her and that he would hurt her mother, too. Patty called DCFS.

¶ 58 On cross-examination, Patty conceded that, before she spoke to S.L., she was aware of

what S.L. told Sergio and Jazmin. S.L. never stated that defendant hit her. She could not recall if

S.L. said that defendant touched her with a pen, but she would have reported it had she been told

that. Patty loves S.L. like she is her daughter and took her to be interviewed by Ely.

¶ 59 f. Celia Sanchez

¶ 60 Celia (S.L.’s paternal grandmother) testified that she spoke with S.L. at her house after

Patricia spoke with her. S.L. asked Celia to go to her home and sit on her bed to find out what

defendant had done to her. S.L. did not describe what defendant did to her.

¶ 61 g. Dr. Raymond Davis

¶ 62 Dr. Raymond Davis, a pediatrician who is board certified in pediatrics and child abuse,

testified as an expert in the field of sexual assault examinations and sexual abuse diagnosis. On

August 19, 2015, he examined S.L. Dr. Davis was aware that it had been reported that S.L. was

sexually abused that summer by defendant.

¶ 63 S.L. told Dr. Davis that defendant does bad things to her “potty” and that he pokes it a lot

with his fingers or a pen or pencil. She described her potty as where she pees from. Defendant

did these things at night when her mother was not home. Sometimes, he did it while S.L. slept

and, when she awoke, he said that he was not doing anything. S.L. also told Dr. Davis that

defendant touched and poked her “butt hole” with his hand at night. She also said that defendant

went into the bathroom one day and choked her and said she needed to learn respect.

¶ 64 S.L. also told Dr. Davis that defendant told her that, if she told anyone about the bathroom

incident, he would choke and hurt her every day. S.L. stated that she told Jazmin. She reported

- 12 - 2022 IL App (2d) 210556-U

that defendant tried to tie her arms with a belt behind her back while she was on the couch on her

stomach, but she moved her arms out of the way.

¶ 65 Dr. Davis opined that S.L.’s examination was normal for her genital and anal areas.

However, a normal exam does not rule out the possibility of sexual abuse because injuries can heal

over time and certain touching may not cause injury. A sexual assault kit was not administered

because S.L. was last in defendant’s presence over 1½ weeks earlier, and samples for such kits

should be collected within 48 to 96 hours of the assault.

¶ 66 On cross-examination, Dr. Davis testified that S.L. had a history of painful urination but

had no such symptoms at the time of her examination. He did not observe any bruising, scars,

broken bones, cuts, or scabs. S.L. did not say anything about defendant touching her private part

with his penis. Nor did she say that defendant hit her.

¶ 67 3. Defendant’s Motion for a Directed Verdict

¶ 68 The trial court granted defendant’s motion for a directed verdict on two counts of predatory

criminal sexual assault (finger in S.L.’s sex organ). The court denied the motion on the counts

alleging predatory criminal sexual assault (object to S.L.’s sex organ) and aggravated criminal

sexual abuse (touching of S.L.’s sex organ).

¶ 69 4. Defendant’s Case-in-Chief

¶ 70 a. Shaunilia Foster, Eldon Foster, and Jason Gordon

¶ 71 Shaunilia Foster, a nurse, is defendant’s cousin and has known him since he was eight years

old. Defendant is from Jamaica. During the summer of 2015, Shaunilia was home from college

and stayed at her mother’s home in Aurora. Defendant’s father also lived in Aurora. Defendant

and his father did not have the best relationship, and defendant left and moved in with Sasha.

- 13 - 2022 IL App (2d) 210556-U

¶ 72 During that summer, Shaunilia’s cousin, Yasmine Gordon, who is half-Filipino, was

having a debutante ball, which is a Philippine cultural tradition. The family held practices all

summer.

¶ 73 Eldon Foster, Shaunilia’s father, testified that defendant is his brother’s son. Eldon was

aware that defendant had a full-time job. Defendant occasionally, i.e., about three times per week,

helped Eldon with his commercial plumbing business after defendant got off work.

¶ 74 Jason Gordon, defendant’s uncle and Yasmine’s father, testified that, during the summer

of 2015, defendant was part of Yasmine’s debutante council or her court. Participants needed to

practice for a celebration dance. The practices ran five days per week from 6 to 10 or 11 p.m.

Defendant was there every day. The ball was on July 17, 2015. Sometimes, defendant spent the

night at their house.

¶ 75 b. DCFS Investigator Melina Pantoja

¶ 76 DCFS investigator Melina Pantoja testified that she interviewed Jazmin on August 21,

2015. Jazmin stated that S.L. told her that, one night when her mother was out, she heard loud

noises. She saw two naked guys and two girls. The guys asked her to go out with them, and she

told them that they were nasty and went back to bed.

¶ 77 c. Defendant

¶ 78 Defendant was 22 years old in 2015. Prior to that summer, he attended Middle Georgia

State University and was studying to become a pilot. He took off a semester from school because

he did not have money and moved in with his father. After they had an altercation concerning

defendant paying rent, defendant moved into Sasha’s apartment. Defendant knew Sasha because

she was best friends with his cousin, Washington. Defendant met Sasha in 2007 when he was 14

years old, shortly after moving to the United States from Jamaica.

- 14 - 2022 IL App (2d) 210556-U

¶ 79 Sasha’s apartment had been converted from one bedroom to two bedrooms. Sasha, S.L.,

Trinell, and defendant lived at the apartment, and defendant slept on the one functional couch.

While living there, defendant worked at a Batavia factory five days per week, from 6 a.m. to 2:30

p.m., plus overtime. After work, he typically returned to the apartment to take a nap and then went

to the gym or helped his uncle Eldon. Defendant also practiced five days per week for the

debutante ball. On weekends, he spent time with Washington and Shaunilia, played soccer, or

partied in Chicago.

¶ 80 Defendant never had an issue with either Sasha or S.L. He was not around S.L. often.

Defendant did not do activities or watch television with S.L. He never screamed, hit, or threatened

S.L. He never tried to wrap a belt around her or touch her vagina with his finger or poke her with

a pen. Defendant testified that he never touched or attempted to touch any of S.L.’s body parts.

¶ 81 On cross-examination, defendant testified that he recalled being alone with S.L. one time.

He babysat S.L. for eight hours one day, during the day, while Sasha worked. He helped her with

math and reading the Bible, and he watched S.L. play outside with other kids.

¶ 82 On August 16, 2015, defendant moved out of the apartment and went back to school.

¶ 83 5. Stipulation and Exhibits

¶ 84 The parties stipulated that, on September 9, 2016, prosecutors spoke with S.L. Initially,

S.L. stated that defendant poked her butt hole, but, later, she said that she was not certain.

¶ 85 A partial transcript of S.L.’s trial testimony from May 9, 2017, was admitted into evidence.

In the transcript, S.L. testified that the bubble pen was never used for any purpose other than for

writing and blowing bubbles. When asked whether defendant ever touched her with the pen, S.L.

responded, “No, I don’t think so.”

¶ 86 6. Verdict and Subsequent Proceedings

- 15 - 2022 IL App (2d) 210556-U

¶ 87 On July 21, 2021, the jury found defendant guilty of two counts of aggravated criminal

sexual abuse (touching of S.L.’s sex organ) and not guilty of two counts of predatory criminal

sexual assault (object to S.L.’s sex organ).

¶ 88 On September 22, 2021, the trial court denied defendant’s motion for a new trial. During

the sentencing hearing, defendant stated in allocution that he was innocent of the charges. The

court sentenced defendant to two concurrent terms of three years’ imprisonment with each at 50%

with good behavior. On April 29, 2022, defendant was released from custody after having served

more than six years in prison. He appeals.

¶ 89 II. ANALYSIS

¶ 90 A. Sufficiency of the Evidence

¶ 91 Defendant argues first that the evidence was insufficient to sustain his convictions. He

contends that S.L.’s multiple contradictory versions of purported improper touching by him were

incredible, as was the “preposterous” theory that he committed the abuse in 10-minute timeframes

while Sasha went to a nearby store. For the following reasons, we reject defendant’s argument.

¶ 92 In reviewing the sufficiency of the evidence to sustain a conviction, the relevant inquiry 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 beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); People v. Thomas, 178 Ill. 2d 215, 231-32

(1997). The trier of fact must “resolve conflicts in the testimony, *** weigh the evidence, and ***

draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319. We will

not substitute our judgment for that of the trier of fact on the weight to be given the evidence or

the credibility of the witnesses. Thomas, 178 Ill. 2d at 232. The testimony of a single witness, if

- 16 - 2022 IL App (2d) 210556-U

positive and credible, is sufficient to convict, even if it is contradicted by the defendant. People v.

Siguenza-Brito, 235 Ill. 2d 213, 228 (2009).

¶ 93 “A person commits aggravated criminal sexual abuse if” he or she “is 17 years of age or

over” and “commits an act of sexual conduct with a victim who is under 13 years of age[.]” 720

ILCS 5/11-1.60(c)(1)(i) (West 2020). Sexual conduct is defined as “any knowing touching or

fondling by the victim or the accused, either directly or through clothing, of the sex organs, anus,

or breast of the victim or the accused, or any part of the body of a child under 13 years of age ***

for the purpose of sexual gratification or arousal of the victim or the accused.” 720 ILCS 5/11-0.1

(West 2020).

¶ 94 Defendant contends that the evidence against him was weak and contradictory and, thus,

insufficient to sustain his convictions. First, he argues that the limited timeframes during which

he was alone with S.L. did not provide him the opportunity to commit the accused acts. It is

unlikely, he argues, that he abused S.L. when, according to S.L., he was left alone with her about

three times while Sasha went to the store. Defendant maintains that molesting a child within 10

minutes under the circumstances in this case is improbable and contrary to human experience. A

child molester, he suggests, would have sought opportunities to groom and be alone with S.L. for

substantial periods. He did not babysit S.L., he notes, and, although he on one occasion watched

S.L. all day, there is no allegation that he molested her that day. He also notes that Sasha told Ely

that she believed Sergio and Jazmin made up the allegations against him and that Sasha reasoned

that there was no way that defendant could have touched S.L. because she never left him alone

with S.L. Defendant further argues that S.L.’s appearance and conduct were not consistent with

her allegations. Sasha testified that S.L. was not upset or crying when Sasha arrived home from

- 17 - 2022 IL App (2d) 210556-U

her grocery trips and S.L. was never scared when Sasha left for the store. Nor did S.L. tell Sasha

that defendant did anything inappropriate with her.

¶ 95 Defendant also argues that there was no evidence supporting S.L.’s allegations. The State,

he contends, presented no evidence to substantiate her claims, nobody heard screams or cries for

help, Dr. Davis’s examination was “normal,” no DNA evidence linked defendant to any sexual

assault of S.L., and the evidence showed that defendant spent a lot of time away from Sasha’s

apartment while working or spending time with family and friends.

¶ 96 Further, defendant contends that S.L. had the knowledge and reason to falsely implicate

defendant because she did not like him living in the apartment, she claimed he was messy, slept

on the good couch, and prevented her from watching television. S.L. also had knowledge about

bad touch, where Sasha had discussed it with her many times and where Jazmin had also discussed

it with her. Also, the allegations arose during a trip with Sergio and Jazmin, whom Sasha had cut

off from physical contact with S.L.

¶ 97 Next, defendant argues that S.L.’s testimony was contradictory. Specifically, she gave

differing versions of purported abuse with a bubble pen, including that defendant twice touched

her vagina with it in her bedroom at night, poked her vagina not with a bubble pen but with a

pencil, and testified at the first trial that the pen was never used for any purpose other than writing

and blowing bubbles. Defendant also notes that S.L. gave contradictory stories about what parts

of her body were touched and how they were touched, including testifying on direct examination

that defendant touched her vagina with his fingers and a bubble pen, telling Ely that defendant

never touched her with anything but his fingers and the pen, and only touched her vagina, stating

(per Jazmin) that defendant put his private part in her booty and that it hurt, and testifying on cross-

examination that she told prosecutors that defendant poked her in the butt hole. S.L., defendant

- 18 - 2022 IL App (2d) 210556-U

notes, also stated (per Patty) that defendant tried to put his private part in her booty and that it hurt

and told Dr. Davis that defendant touched and poked her butt hole with his hand at night.

Defendant also contends that S.L. made contradictory statements that defendant tried to put his

penis inside her vagina, specifically, she allegedly told Patricia that defendant tried to put his

private part inside her private part and that he covered her mouth so she could not scream when he

tried to put his private part in her. However, S.L. did not say anything to Dr. Davis about defendant

touching her private part with his penis.

¶ 98 Defendant also notes that S.L. gave conflicting statements about the scratch on her leg,

where she testified at trial that Jazmin intentionally scratched her with a pen cap because she was

mad at S.L. and where she could not recall telling Jazmin while waiting in line at Disney World

that defendant scratched her leg with his fingernail. Jazmin denied scratching S.L.’s leg and stated

that S.L. claimed that defendant scratched her. Patty also testified that S.L. stated that defendant’s

fingernail caused the scratch. Further, defendant points to S.L.’s statements that she did not tell

Sasha about the alleged abuse because defendant threatened to kill her if she told and that she did

not tell her because she did not want to get defendant into trouble. Finally, defendant points to

S.L.’s assertions concerning her hands being tied with a belt and about seeing two men in her

living room one night. Defendant contends that these stories are bizarre, contradictory, and

undermine S.L.’s credibility. The only consistency, he asserts, between S.L.’s testimony and her

prior statements is that the alleged improper touching occurred at night when Sasha was at the

store. This testimony, defendant urges, must be reviewed in light of all of the evidence. Given

the problems with S.L.’s credibility, he argues, this court should reverse the convictions.

¶ 99 We conclude that the evidence was sufficient to sustain defendant’s convictions. A

reasonable jury could have found that defendant had the opportunity to commit the crimes in the

- 19 - 2022 IL App (2d) 210556-U

timeframes during which he was alone with S.L. The 10-minute periods during which Sasha

testified she spent going to purchase groceries at the Dollar Store could have been found sufficient

for defendant to touch S.L.’s vagina, as charged. We reject defendant’s assertion that the 10-

minute periods allowed for no grooming, for example. Defendant lived with S.L. for an entire

summer, and, therefore, had the opportunity to establish a familiarity, rapport, and trust with the

child. We also reject defendant’s assertion that, because she was not upset or crying when Sasha

returned home from the Dollar Store, was not scared when Sasha left for the store, and did not

report any inappropriate actions by defendant, S.L.’s appearance and conduct were not consistent

with her allegations. Sasha related two incidents at the apartment, while defendant was present,

during which S.L. appeared scared. The first incident occurred while Sasha was in the kitchen

after defendant had first moved in that June. Defendant and S.L. were in the living room, and S.L.

was on a pillow close to defendant’s lap. Sasha testified that S.L. looked uncomfortable and

scared, and Sasha called her into the kitchen because she had previously told her not to sit on

anyone’s lap. The second incident occurred in July 2015, while Sasha vacuumed her bedroom late

one afternoon. S.L., according to Sasha, ran into the bedroom with a weird look on her face that

Sasha had not previously observed. When she questioned S.L., S.L. appeared to be in shock, did

not speak, and merely nodded her head. The second incident is consistent with S.L.’s testimony

that defendant choked her once in the bathroom while Sasha was vacuuming. He told her to have

respect. S.L. testified that she did not tell her mother about the incident but just ran into her

mother’s room and looked at her. Dr. Davis also testified that S.L. related to him the choking

incident.

¶ 100 S.L.’s testimony concerning the acts that formed the basis of the aggravated-criminal-

sexual-abuse convictions was consistent. She told investigator Ely during the 2015 interview that

- 20 - 2022 IL App (2d) 210556-U

defendant did “bad stuff” at night while S.L. was sleeping and while Sasha was grocery shopping.

She reported to Ely that defendant touched her vagina with his finger. She never told Sasha

because she did not want to get defendant in trouble. Jazmin testified that, while in Florida, S.L.

stated that, when Sasha was at the grocery store, defendant touched her vagina with his fingers

while S.L. slept. Patty testified that S.L. told her on August 18, 2015, that, while she was in bed,

defendant touched her vagina while her mother went to buy groceries. Dr. Davis similarly testified

that, during his August 19, 2015, examination, S.L. reported that defendant poked her potty, which

she explained was where her pee comes from, a lot with his fingers and that he did so when her

mother was not home and while S.L. slept.

¶ 101 The alleged inconsistencies in S.L.’s testimony are not like the evidentiary problems

identified in People v. Schott, 145 Ill. 2d 188 (1991), a case upon which defendant relies. In Schott,

the supreme court affirmed the appellate court’s reversal of the defendant’s conviction for indecent

liberties with a child. Id. at 206-09. The complainant had admitted to being a person who lied “a

lot,” she was impeached numerous times, and gave testimony “so fraught with inconsistencies and

contradictions that we find her testimony lacking in credibility that a reasonable doubt of [the]

defendant’s guilt remains.” Id. at 206-07. The complainant had claimed an incident had occurred

at two different times of the year; she had lied to a judge when she falsely accused her uncle of the

acts of which the defendant was accused and admitted she lied because she was angry with her

uncle and wanted him to leave her house; she admitted to a DCFS employee that she had made up

the story about the defendant because she was angry at him; she had recanted to three police

officers; and the complainant’s mother testified that the complainant had recanted her allegations

against the defendant. Id. at 207.

- 21 - 2022 IL App (2d) 210556-U

¶ 102 Here, in contrast, there were only a few minor discrepancies in S.L.’s testimony, which the

jury discounted. For example, S.L. testified at the second trial that, in addition to touching her

vagina with his fingers, defendant also touched her with a bubble pen. However, the partial

transcript of the first trial that was admitted into evidence during the second trial reflected that she

testified that defendant did not touch her with a pen. Ely testified that S.L. reported the touching

with the pen during her interview in 2015. S.L., during the second trial, could not recall denying

that defendant touched her with the pen. Jazmin could not recall if S.L. told her that defendant

poked her with a pen and could not recall her prior testimony that S.L. never said anything about

a pen. Critically, the jury found defendant not guilty of the counts relating to the pen.

¶ 103 S.L. also testified: (1) that Jazmin scratched her leg (Patty testified that S.L. told her that

defendant scratched her); (2) that she did not tell Jazmin that defendant tried to put his private part

in her booty (Ely testified that S.L. never mentioned that her anus was touched; however, Jazmin

and Patty testified that S.L. told them that defendant put his private part in her booty and that it

hurt; Dr. Davis testified that S.L. told him that defendant poked her butt hole with his hand at

night); (3) that she did not tell Jazmin that defendant tried to tie her up (though S.L. reported this

to Dr. Davis); and (4) inconsistently about a story concerning either two naked men or two girls in

the living room of the apartment one evening (Jazmin testified that S.L. told her that two men and

two naked women were in the apartment one night and she told the group that they were nasty;

DCFS investigator Pantoja testified that Jazmin related this story to her and it involved two naked

men and two girls). Admittedly, this testimony was not consistent or was perhaps improbable,

but, again, the jury discounted it and found that S.L.’s key testimony concerning the acts for which

defendant was convicted (i.e., that defendant touched her vagina with his fingers more than once)

was credible. As we noted above, the key testimony was consistent. The testimony about the

- 22 - 2022 IL App (2d) 210556-U

scratch, the anal touching, the tying up, and the nighttime visitors could reasonably reflect the

imagination of a six-year-old or the possible manipulation of the child by her estranged

parents/caregivers. Given that S.L.’s key testimony was consistent, we cannot find any basis to

disturb the jury’s credibility determination.

¶ 104 In summary, the evidence was sufficient to sustain defendant’s convictions for aggravated

criminal sexual abuse.

¶ 105 B. One-Act, One-Crime

¶ 106 Next, defendant argues alternatively that, if this court rejects his sufficiency argument, we

must vacate one of his aggravated-criminal-sexual-abuse convictions because the trial court’s

failure to merge his duplicative convictions violated one-act, one-crime principles. For the

following reasons, we reject defendant’s argument.

¶ 107 Preliminarily, defendant concedes that he did not raise this issue in the trial court and that,

thus, it is forfeited. See People v. Enoch, 122 Ill. 2d 176, 186 (1988). However, plain errors

affecting substantial rights may be reviewed on appeal. Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967). An

alleged one-act, one-crime violation is reviewable under the second prong of the plain-error

doctrine because it affects the integrity of the judicial process. People v. Coats, 2018 IL 121926,

¶ 10. Although the one-act, one-crime rule is not of constitutional dimension, its purpose is to

prevent the prejudicial effect that could result in those instances where more than one offense is

carved from the same physical act. See People v. Artis, 232 Ill. 2d 156, 164-68 (2009). Under

plain-error review, we first determine whether any error occurred. People v. Herron, 215 Ill. 2d

167, 187 (2005).

¶ 108 The one-act, one-crime rule doctrine bars convictions for multiple offenses that are based

on the same physical act. People v. Coats, 2018 IL 121926, ¶ 11. In this context, “act” means

- 23 - 2022 IL App (2d) 210556-U

“any overt or outward manifestation which will support a different offense.” People v. King, 66

Ill. 2d 551, 566 (1977). We first determine whether a defendant’s conduct consisted of a single

physical act or separate acts. Coats, 2018 IL 121926, ¶ 12. Multiple convictions are improper if

they are based on precisely the same physical act. If, however, the defendant’s conduct is based

on more than one physical act, we proceed to the second step, determining whether any of the

offenses are lesser-included offenses. Id. If not, then multiple convictions are proper. Id. Whether

a violation of the rule has occurred is a question of law we review de novo. Id.

¶ 109 Defendant argues that the State never indicated that it intended to prove separate acts to

support multiple convictions for aggravated criminal sexual abuse. He notes that counts VI and

VII of the indictment are identical.1 He also contends that the jury instructions and verdict forms

did not distinguish count VI from count VII. If the jury, defendant asserts, had found that the

evidence supported only one act of sexual conduct based on the jury instructions, it would still

have convicted him of both counts because it was never informed that the verdicts required

findings of more than one act. He relies on two cases.

¶ 110 First, defendant points to People v. Strawbridge, 404 Ill. App. 3d 460 (2010). In

Strawbridge, the defendant was charged with predatory criminal sexual assault for placing his

penis in the victim’s vagina. The victim had testified that the conduct occurred on March 17, 2000,

1 Both counts alleged that, on or about June 1, 2015, through August 18, 2015, defendant,

age 17 or over, committed aggravated criminal sexual abuse, in that he “knowingly committed an

act of sexual conduct with S.L. who was under 13 years of age when the act was committed, in

that the defendant touched the sex organ of S.L. for the purpose of sexual gratification or arousal

of the victim or the accused.”

- 24 - 2022 IL App (2d) 210556-U

which was within the period described in both counts. Count I of the indictment alleged that such

conduct occurred between June 24, 1999, and March 20, 2000, whereas count II alleged that the

conduct occurred on or about March 20, 2000. This court vacated one of the defendant’s

convictions, holding that the multiple convictions violated one-act, one-crime principles because

it was not possible to determine whether the jury found one instance of the charged conduct (and

yet found him guilty with regard to both counts because that instance of conduct took place

between the count I period but also happened to occur on or about the count II period), or multiple

instances. Id. at 463.

¶ 111 In People v. Crespo, 203 Ill. 2d 335 (2001), upon which defendant also relies, the defendant

had stabbed the victim three times “in rapid succession,” and argued on review that his aggravated-

battery conviction should be vacated because the charge stemmed from the same physical act that

formed the basis of an armed violence charge. The supreme court held that, although each of the

stab wounds could support a separate offense, the convictions for both aggravated battery and

armed violence violated the one-act, one-crime doctrine, because the State had failed to

apportion/differentiate the stab wounds among multiple charges in the indictment and, during

closing arguments, the prosecutor had portrayed the defendant’s conduct as a single attack. Id. at

342-44 (“the State specifically argued to the jury that the three stab wounds constituted great bodily

harm,” and it never argued that only one stab wound would be sufficient to sustain the charge).

The court clarified that, for example, “a separate blow of a mop handle could support a separate

conviction,” but, in cases such as the one before it, “the indictment must indicate that the State

intended to treat the conduct of [the] defendant as multiple acts in order for multiple convictions

to be sustained.” Id. at 345.

- 25 - 2022 IL App (2d) 210556-U

¶ 112 We find Strawbridge and Crespo distinguishable. Strawbridge involved separate

overlapping periods and, therefore, it was not possible to determine the jury’s precise findings. In

contrast, there are no separate overlapping periods in this case. Crespo is distinguishable because

the State presented the conduct as a single incident, whereas, here, the State noted during closing

argument S.L.’s testimony that defendant touched her vagina “more than one time.” The

prosecutor also noted S.L.’s testimony concerning how defendant’s hands moved, noting that she

explained that they moved up and down and that “it would be over her underwear, except for when

she was wearing a gown. Then it was under her underwear and on top.” Also, unlike Crespo, the

acts to which S.L. testified occurred over a period, not within moments of each other.

¶ 113 We find In re G.A.T., 2017 IL App (3d) 160702, which defendant does not address,

instructive. In G.A.T., the respondent forced the victim to place his mouth on the respondent’s

penis in a shed and twice in a bedroom. The respondent was charged with aggravated criminal

sexual abuse, sexual exploitation of a child, and battery. The reviewing court rejected the

respondent’s argument that the State had failed to apportion each singular occasion to a specific

count, concluding that there were “three separate crimes on three separate occasions” and that “it

was not necessary to commit one in order to commit another.” Id. ¶¶ 32-34. The court

distinguished Crespo, noting that the State in the case before it had charged the respondent with

three separate counts based on the incidents, argued during closing argument that they occurred

“on three separate occasions,” and, in contrast, the stabbings in Crespo had all occurred within a

matter of minutes, not over a period, “which more readily availed themselves of supporting

separate adjudications.” Id. ¶¶ 33-34.

¶ 114 Here, S.L. stated both during Ely’s interview and during her trial testimony that defendant

touched her more than one time. The State, as noted, reiterated during closing arguments that S.L.

- 26 - 2022 IL App (2d) 210556-U

testified as such. The jury, therefore, was informed that the State treated defendant’s conduct as

separate acts, S.L.’s testimony supported a finding of multiple acts, and defendant was on notice

that the State sought to have him twice convicted of aggravated criminal sexual abuse.

¶ 115 In summary, defendant’s conducts consisted of separate acts and none of the offenses are

lesser-included offenses (because they are identical offenses). Thus, there was no one-act, one-

crime violation, and we honor the procedural default.

¶ 116 III. CONCLUSION

¶ 117 For the reasons stated, we affirm the judgment of the circuit court of Kane County.

¶ 118 Affirmed.

- 27 -