2021 IL App (4th) 190140-U NOTICE FILED This Order was filed under NO. 4-19-0140 May 28, 2021 Supreme Court Rule 23 and is Carla Bender not precedent except in the IN THE APPELLATE COURT 4th District Appellate limited circumstances allowed Court, IL under Rule 23(e)(1). OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) Adams County BOBBY A. HILL, ) No. 18CF790 Defendant-Appellant. ) ) Honorable ) Mark A. Drummond, ) Judge Presiding.
JUSTICE HOLDER WHITE delivered the judgment of the court. Justices Harris and Steigmann concurred in the judgment.
ORDER ¶1 Held: The appellate court affirmed, concluding (1) trial counsel was not ineffective for failing to object to the admission of photographs of the victim with captions and emojis where the State properly authenticated the photographs and (2) the trial court did not err in imposing an aggregate 38-year sentence.
¶2 Following a January 2019 trial, a jury found defendant, Bobby A. Hill, guilty of
two counts of criminal sexual assault (720 ILCS 5/11-1.20(a)(1) (West 2016)) and two counts of
child pornography (photographing) (720 ILCS 5/11-20.1(a)(1)(vii) (West 2016)). In February
2019, the trial court imposed 13-year sentences for each count of criminal sexual assault and
6-year sentences for each count of child pornography (photographing), all to run consecutively,
for an aggregate sentence of 38 years’ imprisonment.
¶3 Defendant appeals, arguing (1) he received ineffective assistance of trial counsel
for failing to object to the admission of photographs of the victim that contained captions and emoticons (emojis) where the State failed to lay an adequate foundation to establish defendant
created the photographs and (2) the trial court erred by imposing 13-year sentences for both
counts of criminal sexual assault where mitigation factors supported a lesser sentence, and his
aggregate sentence of 38 years’ imprisonment was excessive. We affirm.
¶4 I. BACKGROUND
¶5 On December 6, 2018, the State filed an amended bill of indictment, charging
defendant with (1) two counts of criminal sexual assault (720 ILCS 5/11-1.20(a)(1) (West
2016)), (2) two counts of aggravated criminal sexual abuse (720 ILCS 5/11-1.60(d) (West
2016)), (3) two counts of child pornography (photographing) (720 ILCS 5/11-20.1(a)(1)(vii)
(West 2016)), and (4) two counts of child pornography (possession) (720 ILCS 5/11-20.1(a)(6)
(West 2016)).
¶6 A. Pretrial Motion to Exclude
¶7 On December 7, 2018, defendant filed a motion to exclude, seeking to bar
“explicit photographs [that] cannot be positively identified as the alleged victim in this matter
and even if it could be, it does not prove directly or substantially the crimes as alleged and does
nothing more than prejudice the [d]efendant and inflame the passion of the jury.”
¶8 At a January 4, 2019, hearing on the motion to exclude, defense counsel informed
the trial court that she and the State reached an agreement with respect to the motion.
Specifically, defense counsel stated,
“Generally, the People would agree to not introduce any
photographs that have not been or cannot be positively identified
as that of the victim. [The assistant state’s attorney] was kind
enough to bring copies of the photographs that she intends to use at
-2- trial, I have reviewed those photo[graphs] and they do appear to be
photo[graphs] that, at one point in time, were identified by the
alleged victim in this matter. So, as far as the motion to exclude,
we have an agreement with respect to that and what will come in
and what will not come in.”
The trial court accepted the parties’ agreement and acknowledged defendant reserved the right to
object to the foundation for admission of those photographs.
¶9 B. Defendant’s Jury Trial
¶ 10 Below, we summarize the relevant testimony elicited during defendant’s January
2019 jury trial. Before the State called its first witness, it dismissed four counts in the amended
bill of indictment. The case proceeded to trial on two counts of criminal sexual assault (counts I
and II) and two counts of child pornography (photographing) (counts III and IV).
¶ 11 1. I.G.
¶ 12 I.G., the victim, testified that in June 2018 she was 15 years old and lived in
Quincy, Illinois, with her father, Ricky G., stepmother, Tiffany Douglas, biological siblings, and
stepsiblings. I.G. shared a bedroom with her stepsister, D.N. I.G. referred to Douglas as her
stepmother even though Ricky G. and Douglas were not married.
¶ 13 In the summer of 2018, defendant, a friend of I.G.’s father, regularly visited her
father at their house where her father and defendant would sit outside, socialize, and drink. I.G.
testified defendant came over to her house on Tuesdays and Thursdays because her stepmother
worked in the evening on those days. I.G. identified defendant in court.
¶ 14 On several occasions in June or July 2018, defendant and I.G. were alone in the
house, and defendant made comments to I.G. about her body. I.G. testified that in the middle of
-3- August 2018, she and defendant were alone in the kitchen and he asked her “to suck his dick.”
In response, I.G. walked away. Defendant told her to come back, so she did. I.G. testified
defendant then “pulled down his pants and asked me to suck his dick.” When defendant pulled
his pants down, he exposed his penis. I.G. testified she told him “no” but he put his hand on the
back of her head and pushed her head toward his penis. Defendant then placed his penis in I.G.’s
mouth. I.G. testified defendant made a noise “[k]ind of like a moan.” Defendant then ejaculated
into I.G.’s mouth. I.G. testified she “didn’t know where to spit so I kind of swallowed—yeah, I
swallowed it.” I.G. then went upstairs to her bedroom and did not come back downstairs for the
rest of the night. When the incident occurred, I.G. did not tell anyone about the incident.
¶ 15 A few weeks later, defendant and I.G. were alone in the house. I.G. began to
walk out of the bathroom, and defendant stood in the doorway of the bathroom. Defendant held
out his cellular telephone to I.G. and asked her to take photographs of her buttocks. I.G. testified
defendant took photographs of her buttocks while she was wearing gray, “boy short boxer-type
of underwear.” Then defendant asked I.G. to pull her pants down to take photographs of her
buttocks without underwear. I.G. stated, “I don’t know if, like, someone came in the house or
not, but he shut the door and he handed me the [tele]phone and he told me to take a photograph
of my butt[ocks].” I.G. testified “[h]e took [photographs] of my butt[ocks] with underwear, and
then there was [photographs] of my butt[ocks] without underwear.”
¶ 16 I.G. identified herself in People’s Exhibit Group 7, which consisted of several
photographs of I.G.’s buttocks with underwear and without underwear. I.G. identified People’s
Exhibits 7A and 7B as photographs of her buttocks without underwear. I.G. recognized the
photographs “[b]ecause it’s my bathroom, my shirt, and I have a scar on my hip.” I.G. identified
People’s Exhibits 7C, 7D, 7E, and 7F as photographs of her buttocks while she was wearing
-4- grey, boy short boxer-type underwear. I.G. testified that when defendant took the photographs of
her, he stood in the doorway of the bathroom. Defendant took a couple of the photographs, and
defendant directed I.G. to take some of the photographs.
¶ 17 I.G. identified People’s Exhibit 7G as a photograph of her buttocks while she was
wearing grey, boy short boxer-type underwear, and the photograph included the words, “[I.G.]
bubble booty.” I.G. testified she did not put the words on the photograph and noted her name
was spelled wrong. I.G. identified People’s Exhibit 7H as a photograph of her buttocks when
she was wearing grey, boy short boxer-type underwear. The photograph had “a couple of smiley
faces on it.” I.G. testified she did not put the smiley faces on the photograph. Specifically, I.G.
stated, “I’ve never seen those, no.” I.G. identified People’s Exhibit 7I as a photograph of her
buttocks while she was wearing grey, boy short boxer-type underwear, and the photograph
contained the words, “bubble booty [I.G.].” I.G. again testified she did not know the words had
been put on the photograph. Defense counsel did not object to the State’s use of People’s
Exhibit Group 7.
¶ 18 After the photograph-taking incident, defendant and I.G. were alone in the house
again. I.G. was getting ice for her father when defendant blocked the doorway and asked if she
wanted to “suck his dick again.” I.G. testified, “I said, no, and I went to walk away, and I told
him I needed to take the glass of ice outside, and I took it outside, and after I came back in, he
told me to come here and I would go walk up the stairs and he would tell me to come here
again.” I.G. went back to the kitchen where defendant pulled his pants down. Defendant put his
hands down the back of I.G.’s pants and rubbed her buttocks. Defendant then pushed I.G.’s head
toward his penis. I.G. testified she told defendant she did not want to do that and she went to
yank her head back but he pushed her head forward. Defendant then put his penis in I.G.’s
-5- mouth. I.G. testified the incident did not take as long as the first time. I.G. thought “he might
have heard someone come in or seen someone because he backed up and then he went back
outside and I just went to my room, and I waited for my sister, but they were outside, so.”
¶ 19 I.G. testified that, “a little bit after the [photographs] were taken, [defendant]
came over again and he asked me to babysit, and I didn’t want to babysit, because it made no
sense for me to come babysit if he was already going to be home, and after a little—like, he told
my dad I was supposed to come babysit, and I didn’t want to babysit over there, and a little bit
after that, I told my sister [D.N.].” Specifically, I.G. testified it was in September 2018 when she
told her sister “everything that had happened” with defendant.
¶ 20 I.G. testified that a few days later,
“[Her father] was outside in his car, and he told me to come
outside, and I asked him what he wanted and he said, [defendant]
said he gave you $20 to babysit and I understand you don’t want to
babysit, and I said, [defendant’s] never given me $20 to babysit,
and he was like, well, then why is he saying he did? And, he said,
I feel like there’s something going on with you guys. And, he
asked what’s going on, and I told him everything that happened,
and, like, a little bit after that, I went in the house and he called me
back outside and we drove over to [defendant’s] house.”
¶ 21 I.G.’s father demanded I.G. go with him over to defendant’s house to talk about
what was going on. I.G. testified she was crying and upset. I.G. did not want to go over to
defendant’s house, but her father told her to get in the car and they drove to defendant’s house.
-6- Once at defendant’s house, I.G. refused to get out of the car. I.G.’s father and defendant talked,
and then I.G.’s father got back in the car and they drove home.
¶ 22 The next day, I.G. and her stepmother were in the kitchen talking when defendant
walked into the house. Defendant asked I.G.’s father to come outside. I.G.’s stepmother and
father went outside to speak with defendant who was there with his girlfriend, Sadie Foust, and
their baby. Eventually, I.G.’s stepmother and father asked I.G. to come outside. I.G. testified
she went outside and “told them about what [defendant] made me do, about the [photographs],
and how he asked me to babysit and the reason why I didn’t want to babysit.” Subsequently,
I.G.’s stepmother took I.G. to the police station to file a police report.
¶ 23 On cross-examination, defense counsel questioned I.G. about the photographs in
People’s Exhibit Group 7. Specifically, defense counsel asked which photographs I.G took. I.G.
testified she did not take People’s Exhibit 7A but she took People’s Exhibits 7B through 7I.
However, when defense counsel reiterated I.G. took People’s Exhibits 7B and 7C, I.G. testified
she did not take People’s Exhibits 7A or 7B. Specially, I.G. did not take the two photographs
where she did not have on underwear.
¶ 24 On redirect examination, the State asked I.G. if she took the photographs in
People’s Exhibits 7A and 7B. I.G. testified she did not take the photographs in People’s Exhibits
7A and 7B.
¶ 25 2. Ricky G.
¶ 26 Ricky G., I.G.’s father, testified that in September 2018, I.G. told him about the
incidents with defendant and the photographs. Ricky G. explained he initially was “mad and
angry” she did not tell him about the incidents sooner but I.G. said she was afraid to tell him
because defendant was his best friend and she was afraid he would not believe her. After I.G.
-7- told him about the incidents with defendant, Ricky G. text messaged defendant and defendant
asked him to come over to his house to talk to him. Ricky G. acknowledged he should never
have taken I.G. over to defendant’s house to discuss what happened between the two of them.
Once at defendant’s house, I.G. never got out of the car. Defendant accused I.G. of lying, but
she insisted she was not lying.
¶ 27 The next day, defendant came over to Ricky G.’s house with Foust and their
newborn baby. Ricky G. and Douglas went outside to talk with defendant. Once outside, Ricky
G. reiterated what I.G. told him happened with defendant. Ricky G. stated I.G. described to him
what defendant’s penis looked like. Eventually, I.G. went outside and again described what
happened with defendant. I.G. said defendant would not let her out of the kitchen or bathroom
when the events happened. Defendant denied the allegations.
¶ 28 Ricky G. testified when he looked back on the summer of 2018, there were many
opportunities for defendant and I.G. to be alone in the house. A couple of weeks before I.G. told
him about the incidents with defendant, Ricky G. remembered he went into the house because
defendant had not come out of the house and he thought he saw a shadow of defendant making a
hand motion to someone asking for oral sex. Ricky G. observed I.G. sitting on the stairs and
defendant on his cellular telephone, so he did not think much of it. Ricky G. testified that in
July, August, and September 2018, I.G. was not her usual self and spent a lot of time in her
bedroom.
¶ 29 3. Tiffany Douglas
¶ 30 Tiffany Douglas, I.G.’s stepmother, testified that in June or July 2018, on more
than one occasion, she observed defendant and I.G. alone in the house. At the beginning of June
2018, Douglas walked out of the bathroom and observed defendant say something up the stairs to
-8- I.G. Douglas asked defendant what he said, but defendant told her he was just rapping and
singing.
¶ 31 Douglas testified that after the incident, defendant generally came over to the
house on Tuesdays and Thursdays while she was at work. Douglas testified that in the summer
of 2018, I.G.’s demeanor changed toward defendant. Douglas recalled I.G. being excited for a
family trip planned for June but when I.G. found out defendant was also going on the trip she did
not want to go anymore.
¶ 32 On the night of September 20, 2018, Ricky G. called Douglas at work and told her
what I.G. told him about the incidents with defendant. The next morning, defendant came over
to the house with Foust. Douglas and RickyG. went outside to speak with defendant. Ricky G.
told defendant what I.G. told him happened between her and defendant. Defendant denied the
allegations. Then, Ricky G. called I.G. outside and she reiterated the story and that she was not
lying. Douglas told I.G. to go back inside because she was mad that defendant was trying to
confront her. After I.G. went back in the house, Ricky G. told defendant that I.G. described his
penis. When Ricky G. reiterated the description of defendant’s penis to defendant and Foust,
Foust said to defendant, “[S]he just described your dick to a T.” Eventually, Douglas took I.G.
to make a police report about the incidents with defendant.
¶ 33 4. D.N.
¶ 34 D.N., I.G.’s stepsister, testified she and I.G. had lived together their whole life
and they shared a bedroom. In September 2018, D.N. discovered I.G. in their bedroom crying.
D.N. asked I.G. what was wrong, and I.G. told her what had happened with defendant. D.N. told
I.G. she needed to tell someone or she was going to. After I.G. disclosed to D.N. what happened
-9- with defendant, D.N. followed I.G. around and stayed by I.G.’s side when defendant came over
to the house.
¶ 35 5. Detective Kim Morrison
¶ 36 Kim Morrison, a juvenile investigator with the Quincy Police Department,
testified that on September 28, 2018, she observed an interview of I.G. at the Child Advocacy
Center in Quincy. In October 2018, after police arrested defendant, Detective Morrison met with
defendant and requested he turn over his cellular telephone. Defendant consented to police
examining his cellular telephone. Specifically, defendant signed a consent form for police to
search his “Samsung Galaxy Edge [cellular telephone] with a blue case.” Detective Morrison
sent a laboratory request to examine the cellular telephone for “[p]hoto[graphs] of [I.G.], a
15-year-old black female, on the [tele]phone specifically of her butt[ocks] with and without
clothes on and the photographs would probably be taken in a bathroom.” Detective Morrison
then turned the cellular telephone over to the examiner, Detective Nick Eddy.
¶ 37 In November 2018, Detective Eddy completed the extraction of the photographs
from the cellular telephone. Detective Eddy provided Detective Morrison with copies of the
photographs he extracted from the cellular telephone. Subsequently, Detective Morrison asked
I.G. to come to the police department to view the photographs. Before Detective Morrison
showed I.G. the photographs, Detective Morrison asked I.G. to describe what she believed the
photographs would show. Detective Morrison testified I.G. “said in some of the photo[graphs]
that she would be wearing underwear. I asked her to describe the underwear to me. She said
they were gray and that they were boy-short style underwear.” Detective Morrison showed I.G.
the photographs in People’s Exhibit Group 7, and she indicated the photographs depicted her
- 10 - buttocks with and without underwear on, and she stated the photographs showed the bathroom in
her house.
¶ 38 The State offered People’s Exhibit Group 7 into evidence. Defense counsel
objected and the trial court heard argument on the objection outside the presence of the jury.
Defense counsel argued People’s Exhibits 7C through 7I should not be admitted where the State
failed to lay a proper foundation to admit the photographs and those photographs were irrelevant
because I.G. testified she took the photographs. As to People’s Exhibits 7A and 7B, defense
counsel argued the State failed to lay a proper foundation. Defense counsel argued that while
I.G. testified defendant took those photographs of her, her testimony about the angle at which the
photographs were taken was inconsistent with where she said defendant stood.
¶ 39 The trial court found the State laid a proper foundation and admitted People’s
Exhibits 7A and 7B. The court stated, “I’m also inclined to admit [People’s Exhibits 7G, 7H,
and 7I] because of the additional information on [G], [H], and [I].” The court reserved ruling on
People’s Exhibits 7C, 7D, 7E, and 7F.
¶ 40 Before the State rested, outside the presence of the jury, the trial court again
reviewed People’s Exhibit Group 7. The court stated,
“My inclination is to let them all in because, one, they are
relevant. They tend to prove something that is in issue. Both
counsel have cross-examined the witness on them with regard to
each one of the photo[graphs] including who took and who didn’t
take the photo[graphs]. If I would exclude some of the
photo[graphs], my guess is we’re going to get a jury question
asking to see the photo[graphs] since both parties used the
- 11 - photo[graphs]. In addition, definitely [People’s Exhibits 7G, 7H,
and 7I] are coming in because there’s additions to the
photo[graphs] which were taken off the [tele]phone *** they
specifically have [I.G.’s] name, although misspelled.”
The court admitted People’s Exhibits 7G, 7H, and 7I into evidence.
¶ 41 6. Detective Nick Eddy
¶ 42 Nick Eddy, a detective with the Quincy Police Department, testified he performed
the extraction of photographs from defendant’s cellular telephone, and he described the process
for the jury. Detective Eddy described the cellular telephone he extracted images from as a
“Samsung Galaxy S7 Edge with a blue case.” During the extraction, Detective Eddy retrieved
all text messages, photographs, and browsing history from the telephone.
¶ 43 Detective Eddy gave Detective Morrison a copy of all the images he extracted
from the telephone. Detective Eddy also printed copies of the photographs that made up
People’s Exhibit Group 7. Detective Eddy testified the photographs that made up People’s
Exhibits 7G, 7H, and 7I had captions and emojis on them when he extracted the photographs
from the cellular telephone. Detective Eddy was unable to tell when the photographs he
extracted from the telephone were taken.
¶ 44 7. Closing Argument
¶ 45 During closing argument, the State argued, in relevant part,
“And we can’t ignore that—that two of the photo[graphs]
had a label on them that had been placed on them, one of them was
[I.G.’s] bubble booty and the other was bubble booty [I.G.] with
the name [I.G.] spelled wrong. *** [S]o certainly the defendant
- 12 - put his mark on those photographs. And there is a third
photo[graph] where he—there were two emojis like smiley faces
on those. The extra titles added to those photographs and certainly
the smiley faces add an extra insight, I guess you would say, into
the defendant’s thinking. It shows the sexual nature of his
thinking. Certainly, there’s no dispute that or there wouldn’t be
that if you take a photo[graph] of a bare butt[ocks] of a 15-year-old
female what your intent is. That she is in a position—there’s some
sexual intent there. But I think the labels that he puts on those
photo[graphs] is also some circumstantial evidence of what was
going on with the defendant and is some circumstantial evidence to
support that he not only photographed but he also sexually
assaulted this young lady.”
¶ 46 8. Jury Instructions
¶ 47 The trial court instructed the jury, in relevant part, “Neither opening statements
nor closing arguments are evidence, and any statement or argument made by the attorneys which
is not based on the evidence should be disregarded.”
¶ 48 9. Jury Verdict
¶ 49 The jury found defendant guilty of two counts of criminal sexual assault and two
counts of child pornography (photographing).
¶ 50 C. Defendant’s Posttrial Motion and Sentencing Hearing
¶ 51 On February 4, 2019, defendant filed an amended posttrial motion alleging in part
that (1) the trial court erred in allowing certain photographs to be admitted into evidence in
- 13 - which “the victim testified that all but two of the photo[graphs] were taken by her and she further
testified that she did not know when she took said [photographs] and could not remember when
these [photographs] were taken” and (2) “[t]hat the remaining two photographs, the victim
testified that the [d]efendant could not have taken them at the angle they were taken from where
she testified he was standing when he allegedly took the photo[graphs].” On February 27, 2019,
the trial court denied defendant’s amended posttrial motion and held a sentencing hearing.
¶ 52 The court in sentencing defendant took into consideration the parties’ arguments,
the presentence investigation report (PSI), the addendum to the PSI, and the factors in
aggravation and mitigation. The court stated,
“The [c]ourt believes that the State is correct in identifying
the applicable factors both in mitigation and aggravation. The
imprisonment would entail an excessive hardship to his
dependents. However, I believe, according to the Presentence
Investigation Report, there is only one group of dependents that he
is currently supporting. [Defendant] reports he has split custody of
two children, pays approximately $250 a month to support them.
*** [B]ut that is a—somewhat of a factor in mitigation.
With regard to factors in aggravation, the defendant’s
conduct certainly caused serious harm. Caused serious harm to the
victim. The [c]ourt also agrees with the reading of the State with
regard to the defendant held a position of trust or supervision such
as—and here are the keywords—but not limited to family member,
teacher, scout leader, babysitter, or daycare worker so it is not
- 14 - limited to those categories. [Defendant] spent a lot of time over at
the house and I believe the testimony was that he was over there
often and was a trusted family friend which allowed him access to
the victim.
To do the minimum sentence would be contrary to
deterring others from committing the same crime. He does have a
history of prior delinquency or criminal activity. I will give him
that he does not have a criminal conviction of this type. And the
[c]ourt can take into account the age of the victim as to [the two
counts of criminal sexual assault] because that is not an element of
the offense.”
Accordingly, the court imposed 13-year sentences for each count of criminal sexual assault and
6-year sentences for each count of child pornography (photographing), all to run consecutively,
¶ 53 This appeal followed.
¶ 54 II. ANALYSIS
¶ 55 On appeal, defendant argues (1) he received ineffective assistance of trial counsel
for failing to object to the admission of photographs of I.G. that contained captions and emojis
where the State failed to lay an adequate foundation to establish defendant created the
photographs and (2) the trial court erred by imposing 13-year sentences for both counts of
criminal sexual assault where mitigation factors supported a lesser sentence, and his aggregate
sentence of 38 years’ imprisonment was excessive. We review each issue in turn.
¶ 56 A. Ineffective Assistance of Counsel
- 15 - ¶ 57 Defendant argues he received ineffective assistance of trial counsel. Specifically,
he argues his trial counsel failed to object to the admission of photographs of I.G. that contained
captions and emojis on grounds the State failed to lay an adequate foundation to establish
defendant added the captions and emojis to the photographs. As a result, defendant asserts he
was prejudiced by the admission of the evidence. Specifically, he was prejudiced where the
State asserted in closing argument that the captions and emojis in the photographs demonstrated
defendant’s intent to commit both criminal sexual assault and child pornography. The State
argues it laid a proper foundation for the photographs at trial and thus counsel was not
ineffective. We agree with the State.
¶ 58 We review claims of ineffective assistance of counsel under the standard set forth
in Strickland v. Washington, 466 U.S. 668 (1984). To succeed on a claim of ineffective
assistance of counsel, defendant must show (1) the attorney’s performance fell below an
objective standard of reasonableness and (2) the deficient performance prejudiced the defendant.
Id. at 669. Both prongs of the Strickland test must be satisfied; therefore, a finding of ineffective
assistance of counsel is precluded if a defendant fails to satisfy one of the prongs. People v.
Simpson, 2015 IL 116512, ¶ 35, 25 N.E.3d 601.
¶ 59 Before we reach the question of ineffective assistance, we must determine
whether the State laid an adequate foundation to establish defendant added the captions and
emojis to the photographs in People’s Exhibits 7G, 7H, and 7I.
¶ 60 “An adequate foundation is laid when a document is identified and authenticated.”
People v. Chromik, 408 Ill. App. 3d 1028, 1046, 946 N.E.2d 1039, 1055 (2011). “To
‘authenticate a document, evidence must be presented to demonstrate that the document is what
its proponent claims.’ ” Id. (quoting Gardner v. Navistar International Transportation Corp.,
- 16 - 213 Ill. App. 3d 242, 247-48, 571 N.E.2d 1107, 1110 (1991). “A finding of authentication is
merely a finding that there is sufficient evidence to justify presentation of the offered evidence to
the trier of fact and does not preclude the opponent from contesting the genuineness of the
writing after the basic authentication requirements are satisfied.” People v. Downin, 357 Ill.
App. 3d 193, 202-03, 828 N.E.2d 341, 350 (2005). “The prosecution need only prove a rational
basis upon which the fact finder may conclude that the exhibit did in fact belong to the
defendant.” Id. at 203.
¶ 61 “A document may be authenticated by direct or circumstantial evidence.” Id.
“Circumstantial evidence of authenticity includes such factors as appearance, contents, and
substance.” Id. “Prima facie authorship of a document may include a showing that the writing
contains knowledge of a matter sufficiently obscure so as to be known to only a small group of
individuals.” Id. We review a trial court’s decision to admit a document under an abuse of
discretion standard. Id. at 202.
¶ 62 We find the State laid an adequate foundation to establish defendant added the
captions and emojis to the photographs in People’s Exhibits 7G, 7H, and 7I. Here, I.G. testified
defendant “took [photographs] of my butt[ocks] with underwear, and then there was
[photographs] of my butt[ocks] without underwear.” Specifically, I.G. stated defendant held out
his cellular telephone to her and asked her to take photographs of her buttocks. I.G. testified
defendant took photographs of her buttocks while she was wearing gray, “boy short boxer-type
of underwear.” Then defendant asked I.G. to pull her pants down to take photographs of her
buttocks without underwear.
¶ 63 I.G. identified herself in People’s Exhibit Group 7, which consisted of several
photographs of I.G.’s buttocks with underwear and without underwear. I.G. identified People’s
- 17 - Exhibit 7G as the photograph of her buttocks with grey, boy short boxer-type underwear, and the
photograph said, “[I.G.] bubble booty.” I.G. testified she did not put the words on the
photograph and that her name was spelled wrong. I.G. identified People’s Exhibit 7H as the
photograph of her buttocks with grey, boy short boxer-type underwear, and the photograph had
“a couple of smiley faces on it.” I.G. testified she did not put the smiley faces on the
photograph. Specifically, I.G. stated, “I’ve never seen those, no.” I.G. identified People’s
Exhibit 7I as the photograph of her buttocks with grey, boy short boxer-type underwear, and the
photograph said, “bubble booty [I.G.].” I.G. again testified she did not know the words had been
put on the photograph.
¶ 64 Detective Morrison testified when she arrested defendant, she obtained his
cellular telephone. Defendant consented to police examining his cellular telephone.
Specifically, defendant signed a consent form for police to search his “Samsung Galaxy Edge
[cellular telephone] with a blue case.” Detective Morrison then sent a laboratory request to
examine the cellular telephone for “[p]hoto[graphs] of [I.G.], a 15-year-old black female, on the
[tele]phone specifically of her butt[ocks] with and without clothes on and the [photographs]
would probably be taken in a bathroom.” Detective Morrison turned the cellular telephone over
to the examiner, Detective Eddy.
¶ 65 Detective Eddy testified he performed the extraction of photographs from the
cellular telephone, and he described the process for the jury. Detective Eddy described the
cellular telephone he extracted images from as a “Samsung Galaxy S7 Edge with a blue case.”
Detective Eddy gave Detective Morrison a copy of all the images he extracted from the
telephone. Detective Eddy testified the photographs that made up People’s Exhibits 7G, 7H, and
- 18 - 7I had captions and emojis on them when he extracted the photographs from the cellular
telephone.
¶ 66 After Detective Morrison received the extracted photographs from Detective
Eddy, she asked I.G. to come to the police department to view the photographs. Detective
Morrison showed I.G. the photographs in People’s Exhibit Group 7, and she indicated the
photographs depicted her buttocks with and without underwear on, and she stated the
photographs showed the bathroom in her house.
¶ 67 Based on the evidence, we find the State provided a “rational basis” for the fact
finder to conclude defendant added the captions and emojis to the photographs. Defendant
provided his cellular telephone to police and consented to police searching his cellular telephone.
The police then found photographs of I.G. with the captions and emojis on defendant’s cellular
telephone. Further, while I.G. testified defendant “took [photographs] of my butt[ocks] with
underwear, and then there was [photographs] of my butt[ocks] without underwear[,]” I.G. did not
recognize the captions or emojis on the photographs. Therefore, we find the circumstantial
evidence indicates defendant added the captions and emojis to the photographs of I.G. found on
his cellular telephone.
¶ 68 In support of his argument that the evidence failed to show the cellular telephone
belonged to him or that he added the captions or emojis, defendant cites People v. Watkins, 2015
IL App (3d) 120882, 25 N.E.3d 1189, and People v. Kent, 2017 IL App (2d) 140917, 81 N.E.3d
578. We find the cases distinguishable.
¶ 69 In Watkins, 2015 IL App (3d) 120882, ¶¶ 11-12, upon executing a search warrant
inside of a home where the defendant and five other people were present, police officers found
drugs and multiple cellular telephones in an open kitchen drawer. One of the cellular telephones
- 19 - contained drug-related text messages that were directed to someone named “Charles,” which
happened to be the defendant’s first name. Id. ¶¶ 16-17. However, there was no evidence from
the telephone itself that defendant was the owner. Id. ¶ 24. Under these circumstances, the
appellate court determined the evidence was insufficient to authenticate the text messages as
having been sent to the defendant. Id. ¶ 38.
¶ 70 In Kent, 2017 IL App (2d) 140917, ¶¶ 103, 119, the appellate court found the trial
court abused its discretion in admitting a Facebook post because “the State offered neither direct
nor circumstantial proof of authentication. [The] [d]efendant did not admit to creating a
Facebook profile or making the post, and he was not seen composing the communication.”
¶ 71 Here, circumstantial evidence showed the cellular telephone belonged to
defendant. Defendant gave the cellular telephone to Detective Morrison. Further, defendant
signed a form allowing police to search his cellular telephone, and he identified his cellular
telephone in the form. Defendant identified the same cellular telephone from which Detective
Eddy testified he extracted the photographs with the captions and emojis. Based on the
evidence, we find the State laid an adequate foundation to establish defendant added the captions
and emojis to the photographs.
¶ 72 Having determined the State presented sufficient evidence of authentication, we
conclude defense counsel did not provide ineffective assistance by failing to object to the
admission of the photographs with captions and emojis.
¶ 73 Even if the State failed to lay an adequate foundation to establish defendant added
the captions and emojis to the photographs, defendant was not prejudiced because the
photographs with the captions and emojis were not the only photographs to come in at trial.
Rather, they were duplicates of other photographs that did come in except the photographs that
- 20 - came in lacked the captions and emojis. The State properly admitted the other photographs of
I.G., which showed her with underwear on and without underwear on. While we cannot find
where in the record the trial court ever formally admitted People’s Exhibits 7C-7F, the
photographs of I.G. with underwear on, the State used the photographs during its case-in-chief,
and defendant cross-examined I.G. and the detectives using the photographs.
¶ 74 Further, to the extent defendant argues he was prejudiced when the State used the
captions and emojis in the photographs as evidence in closing argument to show defendant’s
intent to commit both criminal sexual assault and child pornography, we find the trial court
properly instructed the jury that closing arguments are not evidence and any statement or
argument made by an attorney which is not based on the evidence should be disregarded.
¶ 75 Moreover, even if the State had been prohibited from arguing the captions and
emojis showed defendant’s intent to commit both criminal sexual assault and child pornography,
there is no reasonable probability the outcome would have been different. Here, the evidence
was overwhelming. Most damning was the mere fact that defendant had inappropriate
photographs of I.G. in her bathroom on his phone, to say nothing of I.G.’s verified description of
defendant’s penis and the corroboration of I.G.’s testimony that she and defendant were
frequently alone in I.G.’s home. Accordingly, where defendant did not suffer any prejudice, his
ineffective assistance claim fails.
¶ 76 B. Excessive Sentence
¶ 77 Last, defendant argues the trial court erred by imposing 13-year sentences for
each count of criminal sexual assault where mitigating factors supported a lesser sentence and
his aggregate sentence of 38 years’ imprisonment was excessive where it did not comport with
the goal of restoring him to useful citizenship. In the alternative, defendant argues he received
- 21 - ineffective assistance of counsel for failure to file a motion to reconsider defendant’s sentence.
The State argues defendant’s sentence was not excessive where his sentence fell within the
statutory guidelines and the trial court considered multiple factors in mitigation. We agree with
the State.
¶ 78 The trial court has discretion in sentencing, and we will not reverse a sentence
absent an abuse of discretion. People v. Snyder, 2011 IL 111382, ¶ 36, 959 N.E.2d 656. Such
discretion in sentencing is necessary because “the trial court is in a better position to judge the
credibility of the witness and the weight of the evidence at the sentencing hearing.” People v.
Ramos, 353 Ill. App. 3d 133, 137, 817 N.E.2d 1110, 1115 (2004). “A sentence which falls
within the statutory range is not an abuse of discretion unless it is manifestly disproportionate to
the nature of the offense.” People v. Franks, 292 Ill. App. 3d 776, 779, 686 N.E.2d 361, 363
(1997).
¶ 79 “A sentence imposed by the trial court is presumed to be proper.” People v.
Butler, 2013 IL App (1st) 120923, ¶ 31, 994 N.E.2d 89. “There is a strong presumption that the
trial court considered any evidence of mitigation presented to it.” Id. “In order to rebut this
presumption, the defendant must present some indication, other than the sentence imposed, that
the trial court did not consider the mitigating evidence.” Id.
¶ 80 Defendant forfeited his claim that his sentence is excessive where he failed to file
a motion to reconsider the sentence. See 730 ILCS 5/5-4.5-50(d) (West 2016) (“A defendant’s
challenge to the correctness of a sentence or to any aspect of the sentencing hearing shall be
made by a written motion filed with the [trial court] clerk within 30 days following the
imposition of sentence.”). When a defendant fails to file a motion to reconsider his sentence to
preserve sentencing issues on appeal, the court’s sentencing decision will only be overturned if
- 22 - the defendant demonstrates plain error. People v. Moreira, 378 Ill. App. 3d 120, 131, 880
N.E.2d 263, 272 (2007).
¶ 81 Under the plain error doctrine, we first determine whether a clear or obvious error
occurred. People v. Piatkowski, 225 Ill. 2d 551, 565, 870 N.E.2d 403, 410-11 (2007). If the
reviewing court determines a clear or obvious error occurred, the second step is to determine
whether (1) “the evidence is so closely balanced that the error alone threatened to tip the scales
of justice against the defendant, regardless of the seriousness of the error” or (2) the “error is so
serious that it affected the fairness of the defendant’s trial and challenged the integrity of the
judicial process, regardless of the closeness of the evidence.” Id. Thus, we turn to whether the
court abused its discretion by committing a clear or obvious error in sentencing defendant to an
aggregate sentence of 38 years’ imprisonment.
¶ 82 The trial court errs when the sentence is “greatly at variance with the spirit and
purpose of the law, or manifestly disproportionate to the nature of the offense.” People v.
Stacey, 193 Ill. 2d 203, 210, 737 N.E.2d 626, 629 (2000). As the court determines an
appropriate sentence, “a defendant’s history, character, and rehabilitative potential, along with
the seriousness of the offense, the need to protect society, and the need for deterrence and
punishment, must be equally weighed.” People v. Hernandez, 319 Ill. App. 3d 520, 529, 745
N.E.2d 673, 681 (2001). “A defendant’s potential for rehabilitation is not given greater weight
than the seriousness of the crime.” People v. Haley, 2011 IL App (1st) 093585, ¶ 64, 960 N.E.2d
670.
¶ 83 In determining defendant’s sentence, the trial court considered the parties’
arguments at sentencing, the PSI, the addendum to the PSI, and the factors in aggravation and
mitigation. Defendant argued the factors in mitigation supported a minimum sentence where his
- 23 - imprisonment would impose an excessive hardship on his dependents. Further, defendant held a
steady job and only had one prior felony drug conviction. In sentencing defendant, the court
addressed the hardship defendant’s incarceration imposed on his dependents. However, the court
found the serious harm defendant caused to the victim greatly outweighed any mitigating factors.
The court also expressed a strong need for deterrence. Specifically, the court stated,
“The [c]ourt believes that the State is correct in identifying
the applicable factors both in mitigation and aggravation. The
Investigation Report, there is only one group of dependents that he
is currently supporting. [Defendant] reports he has split custody of
two children, pays approximately $250 a month to support them.
conduct certainly caused serious harm. Caused serious harm to the
victim. The [c]ourt also agrees with the reading of the State with
regard to the defendant held a position of trust or supervision such
as—and here are the keywords—but not limited to family member,
teacher, scout leader, babysitter, or daycare worker so it is not
limited to those categories. [Defendant] spent a lot of time over at
the house and I believe the testimony was that he was over there
often and was a trusted family friend which allowed him access to
- 24 - To do the minimum sentence would be contrary to
deterring other from committing the same crime. He does have a
history of prior delinquency or criminal activity. I will give him
that he does not have a criminal conviction of this type. And the
[c]ourt can take into account the age of the victim as to [the two
counts of criminal sexual assault] because that is not an element of
¶ 84 We find the trial court did not abuse its discretion when it imposed 13-year
sentences for each count of criminal sexual assault and 6-year sentences for each count of child
pornography (photographing), all to run consecutively, for an aggregate sentence of 38 years’
imprisonment. Defendant’s sentence fell within the statutory range and was not disproportionate
to the nature of the offense. The trial court at sentencing took into consideration the factors in
mitigation but found the factors in aggravation and the need for deterrence outweighed the
minimal factors in mitigation. Therefore, we cannot say the court abused its discretion by
sentencing defendant to an aggregate sentence of 38 years’ imprisonment in this case.
Accordingly, defendant fails to demonstrate a clear or obvious error to support his contention of
plain error.
¶ 85 Given our analysis regarding the propriety of the sentence imposed, we see no
basis to criticize counsel’s failure to file a motion to reconsider defendant’s sentence. Thus, we
conclude defendant’s ineffective assistance claim fails where he cannot demonstrate deficient
performance or prejudice under the Strickland analysis.
¶ 86 III. CONCLUSION
¶ 87 For the reasons stated, we affirm the trial court’s judgment.
- 25 - ¶ 88 Affirmed.
- 26 -