People v. Hare

2023 IL App (5th) 220078-U

• Court: Appellate Court of Illinois
• Decided: November 7, 2023
• Docket: 5-22-0078
• Status: Unpublished

Opinion

NOTICE 2023 IL App (5th) 220078-U NOTICE Decision filed 11/07/23. The This order was filed under text of this decision may be NO. 5-22-0078 Supreme Court Rule 23 and is changed or corrected prior to the filing of a Petition for not precedent except in the

Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1).

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Madison County. ) v. ) No. 19-CF-3823 ) KEITH HARE, ) Honorable ) Kyle A. Napp, Defendant-Appellant. ) Judge, presiding. ________________________________________________________________________

JUSTICE CATES delivered the judgment of the court. Presiding Justice Boie and Justice Barberis concurred in the judgment.

ORDER

¶1 Held: The circuit court did not err in considering the psychological harm to the victim as a factor in aggravation during the defendant’s sentencing because psychological harm is not inherent in the offense of predatory criminal sexual assault of a child.

¶2 Following a bench trial, the defendant, Keith Hare, was convicted of two counts of

predatory criminal sexual assault of a child (720 ILCS 5/11-1.40(a)(1) (West 2018)). He

was sentenced to two consecutive 30-year terms in the Illinois Department of Corrections,

followed by mandatory supervised release for a period of 3 years to life. The defendant

then filed this appeal. On appeal, the defendant contends that the circuit court improperly

considered that the defendant’s conduct caused or threatened serious harm to the victim 1 where the record does not support a showing of harm beyond what is inherent in the charge

of predatory criminal sexual assault.

¶3 I. BACKGROUND

¶4 On November 27, 2019, the defendant was charged by information with three counts

of predatory criminal sexual assault of a child (720 ILCS 5/11-1.40(a)(1) (West 2018)).

Subsequently, the State amended the information and charged the defendant with two

counts of predatory criminal sexual assault of a child (720 ILCS 5/11-1.40(a)(1) (West

2018)) and one count of attempt predatory criminal sexual assault of a child (720 ILCS

5/8-4(a) (West 2018)). Counts I and II of the amended information alleged that on

November 16, 2019, the defendant, who was 17 years of age or older, committed acts of

sexual penetration on K.S., a child under 13 years of age at the time of the offenses, the sex

acts allegedly involved the defendant’s penis and the victim’s sex organ. Count III alleged

that on November 16, 2019, the defendant, who was 17 years of age of older, took a

substantial step toward committing the offense of predatory criminal sexual assault of a

child in that the defendant attempted to put his penis into the victim’s mouth. The defendant

proceeded with a bench trial, where the following evidence was presented by the State.

¶5 On November 16, 2019, Michael Hosfelt dropped off his six-year-old daughter,

K.S., at the home of Bridget Teague. Bridget was a family friend, who sometimes watched

K.S. along with her own grandchildren. On this day, Bridget had to take one of her

daughters, Rachel Barnes, to work, so Bridget left K.S. at the house with some other family

members, including Rashonda Barnes (Bridget’s adult daughter), E.B. (Rashonda’s one-

year-old daughter), and O.T. (Rachel’s six-year-old daughter). 2 ¶6 While K.S. was at Bridget’s house, Rashonda was exchanging text messages with

the defendant. Rashonda testified that she and the defendant discussed having a

“threesome” with a young person and going to get pizza. Sometime after this conversation,

the defendant drove to Bridget’s house to pick up Rashonda. Rashonda came out to meet

the defendant, and she brought K.S., O.T., and E.B. with her. They all got into the

defendant’s car. The children sat in the back seat and Rashonda sat in the front seat.

Rashonda testified that she thought that they were going to get pizza. Instead, the defendant

drove to Rock Springs Park in Alton, Illinois. When they arrived at the park, O.T. and E.B.

went to the playground to play. K.S. was told to stay by the bench with the defendant and

Rashonda.

¶7 Rashonda initially testified 1 that while O.T. and E.B. were playing at the

playground, the defendant bent K.S. over the bench and assaulted her by rubbing her vagina

with his hand and penis. Upon further questioning by the prosecutor, Rashonda eventually

admitted that she also touched K.S.’s vagina. She stated that she did this because the

defendant grabbed her hand and put it there. After the initial assault, the defendant got into

his car with K.S., and Rashonda went to the playground to check on the other children.

After checking on the children, Rashonda walked back to the defendant’s car and looked

in the rear driver’s side window. She saw the defendant on top of K.S., assaulting her for a

second time.

1 Rashonda testified in this case as required by the plea agreement she entered for charges related to her actions on November 16, 2019. 3 ¶8 The State also called O.T., the daughter of Rachel Barnes, as a witness to the

occurrence in the park. O.T. recalled that she went to the park with the defendant,

Rashonda, K.S., and E.B., and that she and E.B. went to the playground when they arrived.

O.T. stated that she was scared of the woods near the playground, so she came back towards

the bench. As she approached the bench, O.T. saw the defendant behind K.S. Both the

defendant’s and K.S.’s pants and underwear were pulled down and the defendant was

moving back and forth. It looked like “[the defendant] was attached to her.” Rashonda

yelled at O.T. to go back to the playground. O.T. went back to the playground for a little

while. When O.T. returned to the benches she saw Rashonda “moving” on top of K.S.

Rashonda cursed at O.T. and told her to go back to the playground. Once at the playground,

O.T. saw the defendant, Rashonda, and K.S. get into the back of the defendant’s car. O.T.

could not see what happened in the car because the car windows were tinted. Eventually,

the defendant, Rashonda, and K.S. got out of the car. K.S. came to the playground to play

with O.T. O.T. noticed that K.S. seemed sad and would not talk to O.T.

¶9 Shortly after these events, everyone got back in the car and the defendant drove to

Taco Bell. Rashonda described K.S. as “acting kind of weird” and “just scared.” K.S. did

not speak to anyone at Taco Bell except when Rashonda picked K.S. up and told her not to

tell anyone about what happened. Once everyone finished eating, they all left and went

back to Bridget’s house.

¶ 10 When K.S. walked into the house, Bridget noticed that the child looked scared.

Bridget and her daughter, Rochella, talked to K.S. to try to figure out what was wrong. K.S.

4 eventually told them about what happened at the park. K.S. said that there was a man

touching her “private parts” and “trying to put his private part in.”

¶ 11 Rachel returned to Bridget’s house after work. Once Rachel arrived, her daughter,

O.T., told her what had happened to K.S. at the park. O.T. also mentioned that K.S. was

too afraid to say anything. Rachel went to the Alton Police Department that night to report

the assault. Rachel spoke with Detective Joseph Splittorff. O.T. also talked to the police

that night. Rachel took O.T. to the child advocacy center (CAC) the next day.

¶ 12 Detective Splittorff testified that he was assigned to the investigation. As part of the

investigation, Detective Splittorff obtained a copy of the surveillance video from the Taco

Bell where K.S. was taken after the assault. The surveillance video was admitted into

evidence. The State offered the video to depict the demeanor of K.S. shortly after the

assault. The State also presented the CAC interview with K.S. The recorded interview was

conducted by Krista Mansholt, a qualified forensic interviewer, on November 22, 2019.

During the interview K.S. disclosed that she was at the park with the defendant and

Roshanda on November 16, 2019, and that the defendant placed his sex organ on her sex

organ twice at the park.

¶ 13 At the close of the State’s case, the defendant moved for a directed verdict. The

motion was denied, and the defense rested. Following closing arguments, the circuit court

issued its ruling from the bench. The circuit court found the defendant not guilty of attempt

predatory sexual assault of a child and guilty of the two counts of predatory criminal sexual

assault of a child. The circuit court ordered a presentence investigation. The defendant

subsequently filed a combined posttrial motion and motion for a new trial. In the motion, 5 the defendant requested that the circuit court vacate the judgment and find the defendant

not guilty or alternatively grant the defendant a new trial. The circuit court denied the

defendant’s posttrial motion.

¶ 14 Before the sentencing hearing, the circuit court discussed the presentence

investigation and accepted corrections made by the defendant’s attorney. The circuit court

then proceeded with the sentencing hearing. The State sought a 30-year sentence on each

count, to run consecutively, and argued three factors in aggravation.

¶ 15 First, the State argued that “the defendant’s conduct caused or threatened serious

harm.” The State supported this argument by referencing the surveillance video from Taco

Bell that was played during the bench trial that demonstrated how K.S. behaved after the

assaults at the park. The State described K.S. as a “shell-shocked six-year-old girl.” The

State compared how K.S. appeared to be traumatized in the Taco Bell video, to the CAC

interview, and to her demeanor during her testimony. Second, the State argued that the

circuit court should consider the defendant’s prior delinquency and criminal activity. The

State commented on the defendant’s long history of sexually abusing children, noting that

he has become bolder and therefore more dangerous. Third, the State asked that the circuit

court consider a sentence that would serve to deter others from committing the same crime.

¶ 16 The defendant’s attorney then argued factors in mitigation. Counsel argued that the

defendant had medical issues that would be difficult to address while incarcerated. Counsel

also noted that the defendant would suffer a financial impact from his incarceration.

¶ 17 After considering the arguments of counsel, the circuit court found the three factors

in aggravation argued by the State applied in the defendant’s case, but none of the factors 6 in mitigation applied. The circuit court stated that the defendant was “a predator in every

sense of the word, and that [K.S.] will never be the same because of what [he] did to her.”

The circuit court found that the defendant had “taken advantage of children [his] whole

life.” The circuit court noted that although the State had presented two other witnesses who

testified they had been assaulted by the defendant, the court was imposing a sentence based

solely on what the defendant did to K.S. The circuit court sentenced the defendant to 30

years for both counts of predatory sexual assault of a child to run consecutively for a total

of 60 years. This appeal followed.

¶ 18 II. ANALYSIS

¶ 19 The defendant argues that the circuit court erred in improperly considering

psychological harm of the victim as a factor in aggravation when imposing his sentence.

The defendant claims that absent a showing that the defendant’s conduct caused more harm

to K.S. than the statute already contemplated, it was improper for the trial court to aggravate

the defendant’s sentence on the basis that his conduct caused or threatened serious harm.

The defendant acknowledges he did not raise this objection during sentencing or in a

postsentencing motion, and he requests that this court review his claim for plain error. The

defendant argues that his sentence should be vacated, and the case should be remanded for

a new sentencing hearing. In response, the State argues that the defendant forfeited the

claim, and that he has not established that he is entitled to plain error review.

¶ 20 “It is well settled that, to preserve a claim of sentencing error, both a

contemporaneous objection and written postsentencing motion raising the issue are

required.” People v. Hillier, 237 Ill. 2d 539, 544 (2010) (citing People v. Bannister, 232 7 Ill. 2d 52, 76 (2008)). As noted, the defendant did not raise this objection during sentencing

or in a postsentencing motion, and he has conceded the forfeiture. Nevertheless, the

defendant requested that we review this claim for plain error.

¶ 21 The plain error doctrine is a two-prong test, in which the defendant carries the

burden of persuasion for both prongs. Hillier, 237 Ill. 2d at 545. First, a defendant must

show that a clear and obvious error has occurred. Hillier, 237 Ill. 2d at 545. Second, if the

defendant is claiming that an error occurred during sentencing, the defendant must show

either that “(1) the evidence at the sentencing hearing was closely balanced, or (2) the error

was so egregious as to deny the defendant a fair sentencing hearing.” Hillier, 237 Ill. 2d at

545. If the defendant fails to satisfy either prong, the claim will fail. Hillier, 237 Ill. 2d at

545.

¶ 22 There is a “general rule that a factor inherent in the offense for which a defendant

has been convicted cannot also be used as an aggravating factor in determining his

sentence.” People v. Bunning, 2018 IL App (5th) 150114, ¶ 15 (citing People v. Phelps,

211 Ill. 2d 1, 11 (2004)). This general rule assumes that the General Assembly has already

considered the factors inherent in the offense when determining the sentencing range.

Bunning, 2018 IL App (5th) 150114, ¶ 15. When determining if a circuit court based the

defendant’s sentence on proper aggravating and mitigating factors, the reviewing court

“should consider the record as a whole, rather than focusing on a few words or statements

by the trial court.” People v. Dowding, 388 Ill. App. 3d 936, 943 (2009). There is a strong

presumption that the trial court used proper legal reasoning in its sentencing determination.

Dowding, 388 Ill. App. 3d at 942-43. 8 ¶ 23 “Harm is not inherent in the offense” of predatory criminal sexual assault of a child.

People v. Kerwin, 241 Ill. App. 3d 632, 636 (1993); 720 ILCS 5/11-1.40 (West 2018).

Also, the circuit court may consider psychological trauma as an aggravating factor without

direct evidence of trauma. People v. Reber, 2019 IL App (5th) 150439, ¶ 94 (citing People

v. Burton, 102 Ill. App. 3d 148 (1981)).

¶ 24 The defendant relies on People v. Calva for his argument that our courts have held

that “it can be inferred that a child who is the victim of sexual assault has sustained

psychological damage.” People v. Calva, 256 Ill. App. 3d 865, 875 (1st Dist. 1993). In

Calva, the defendant pled guilty to six counts of aggravated criminal sexual assault. Calva,

256 Ill. App. 3d at 867. During the sentencing hearing, evidence in aggravation and

mitigation was presented. As to the factors in aggravation, the State presented evidence

that a lengthy prison term was necessary to deter others from committing similar crimes

and the defendant was in a position of trust to the victim. Despite no evidence of

psychological harm caused to the victim being presented by the State, the circuit court

stated that the defendant “had physically and psychologically injured and scarred [the

victim] for life.” Calva, 256 Ill. App. 3d at 869. The circuit court then proceeded to

sentence the defendant to an extended sentence. Calva, 256 Ill. App. 3d at 869. On appeal,

the court found that since “no evidence was presented that [the victim] suffered any

psychological harm beyond the harm implicit in any sexual assault against a child,”

psychological harm could not be considered a factor in aggravation. Calva, 256 Ill. App.

3d at 877.

9 ¶ 25 The reasoning in Calva has been distinguished by this court in People v. Bunning,

2018 IL App (5th) 150114. The Calva decision has also been distinguished or questioned

in many other unreported cases. See People v. Muraida, 2021 IL App (4th) 180650-U,

¶¶ 58-59 (and cases cited therein). After reviewing the record, we find that Calva is

distinguishable from the case at bar. Unlike Calva, this case proceeded with a bench trial

where the circuit court was able to observe K.S. and assess her demeanor on three separate

occasions. The circuit court watched K.S. in a surveillance video from Taco Bell

immediately after the assaults occurred, in the CAC interview, and at trial when K.S.

testified. In addition, the circuit court was presented with testimony from K.S.’s father that

K.S. received counseling for six months following the assaults. Finally, the circuit court

heard from several witnesses who described K.S.’s demeanor after the assaults as either

sad, scared, confused, or “emotionally and traumatically upset.”

¶ 26 On this record, there is sufficient evidence from which to find or reasonably infer

that K.S. suffered psychological harm as a result of the sexual assault. Therefore, we find

that the circuit court’s consideration of psychological harm to the victim was not erroneous.

Without error, the defendant cannot establish plain error. Accordingly, the defendant’s

forfeiture must be honored.

¶ 27 III. CONCLUSION

¶ 28 For the foregoing reasons, we affirm the judgment of the circuit court of Madison

County.

¶ 29 Affirmed.