NOTICE 2024 IL App (4th) 230625-U This Order was filed under FILED Supreme Court Rule 23 and is NO. 4-23-0625 August 5, 2024 not precedent except in the Carla Bender limited circumstances allowed 4th District Appellate under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Winnebago County HAROLD T. MABRY, ) No. 22CF974 Defendant-Appellant. ) ) Honorable ) Randy Wilt, ) Judge Presiding.
JUSTICE KNECHT delivered the judgment of the court. Justices Lannerd and DeArmond concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed, concluding (1) the evidence was sufficient to show defendant was at least 17 years old when he engaged in the conduct charged as predatory criminal sexual assault of a child and (2) defense counsel was not ineffective for asking a question which elicited testimony tending to establish the age-of-the-offender element of the offense of predatory criminal sexual assault of a child.
¶2 Defendant, Harold T. Mabry, appeals from his conviction of one count of predatory
criminal sexual assault of a child (720 ILCS 5/11-1.40(a)(1) (West 2018)). He argues the evidence
was insufficient to prove beyond a reasonable doubt he was 17 years old or older when he
committed the act charged, an element of the offense of which he was convicted. Alternatively, he
contends defense counsel was ineffective for eliciting evidence critical to supporting the finding
he was 17 years old or older when he committed the act charged. We affirm.
¶3 I. BACKGROUND ¶4 A grand jury indicted defendant on two counts of predatory sexual assault against
L.M. (id.). The first count charged, sometime between April 24, 2017, and April 24, 2019,
defendant touched the sex organ of L.M. with his hand. L.M. was then under the age of 13. The
second count charged, during the same time period, defendant placed his sex organ in L.M.’s sex
organ.
¶5 Defendant had a bench trial in March and April 2023. The trial court found
defendant guilty of the second count based on evidence tending to show the charged act occurred
in 2018.
¶6 A. Testimony of Kim Larson and the Recording of Her Interview of L.M.
¶7 Kim Larson of the Carrie Lynn Children’s Center (Carrie Lynn) testified she was
trained to conduct forensic interviews of children; she learned to conduct “structured
conversation[s] *** in a non-suggestive, non-leading manner in order to obtain detailed
information regarding allegations.” She conducted a forensic interview of L.M., who was then 12
years old, on March 1, 2023. The trial court admitted the video recording of the interview.
¶8 In the recording, L.M. stated she was seven or eight when the assaults took place
and defendant was a “teenager.” She said they ended when she was nine years old and defendant
went back to live in his mother’s home, which she said, with a degree of hesitation, was in
“Arkansas.” She said defendant had done something inappropriate to her four or five times. She
further said he had “raped” her. When Larson asked her what specifically she meant when she
talked about rape, L.M. described an instance during which defendant placed his penis in her
vagina. (She referred to both organs as “private parts,” but Larson elicited statements from L.M.
clarifying the body parts to which she was referring.) After L.M. described the assault she
-2- described as rape, Larson asked L.M. to describe the other assault. L.M. then stated defendant had
put his hand in her private part.
¶9 Larson did not ask questions to establish when defendant was present in the same
household as L.M. L.M. was notably quiet or reticent during the interview. There were often long
delays between Larson asking a question and L.M. answering. Indeed, L.M. did not answer some
questions at all. Consequently, L.M. answered few questions given the time the interview took.
¶ 10 B. Testimony of A.M.
¶ 11 A.M., L.M.’s mother, testified L.M was born on April 24, 2009. L.M. lived with
her and other family members in Rockford, Illinois. A.M. testified, in 2022, she received a call
from L.M.’s teacher, who said A.M. needed to talk to L.M. When A.M. initially asked L.M.
whether she had anything she needed to tell her about, L.M. said she did not. However, when A.M.
said L.M.’s teacher had contacted her, L.M. agreed she had something she needed to disclose.
L.M. told her mother, when she was seven or eight years old, defendant—A.M.’s stepson and
L.M.’s stepbrother—had touched her. There had been two incidents, one involving touching her
“private area” and one involving penetration. A.M. did not ask L.M. any questions but instead let
L.M. describe the assaults “in her own words.”
¶ 12 A.M. testified defendant had lived with her and her family “off and on” when he
was not living with his mother in Arkansas. His last stay occurred when defendant was 18 to 19
years old and had just graduated from high school in Arkansas. A.M. thought it lasted about a year.
She and her family, including L.M., had been to Arkansas to go to defendant’s graduation, and
defendant came back with them. He had previously lived with A.M. and her family for a period
that ended before he started his junior year in high school. She could not remember the specific
years in which either of these stays occurred.
-3- ¶ 13 C. Testimony of L.M.
¶ 14 L.M. testified after her mother. She said she was 13 years old. On direct
examination, she agreed she remembered talking to someone at Carrie Lynn (i.e., Larson) about
defendant. She agreed she had described two incidents, one involving defendant placing his penis
in her vagina and one involving him placing his hand in her vaginal area. She testified she told the
truth to Larson. She further agreed she had told Larson the abuse stopped when she was nine years
old, which was when defendant moved out of the house. She did not know the year either incident
occurred.
¶ 15 On cross-examination, L.M. agreed she told Larson the abuse happened when she
was seven or eight years old, but it stopped when she was “around 9.” She agreed she had said the
abuse stopped when defendant “moved to Arkansas to live with his mom.”
¶ 16 L.M. agreed she knew she had gone to defendant’s high school graduation in
Arkansas. After this agreement, the following exchange ensued:
“Q. After [defendant] graduated high school in Arkansas, do you know—
did he ever move back up to Rockford?
A. Yeah.
Q. Did anything ever happen with [defendant] after he moved back to
Rockford—between you and [defendant]?
***
Q. What happened?
A. He raped me.
Q. After he moved back from Arkansas?
-4- A. Yep.
Q. Did you tell that to the people at the Carrie Lynn Center?
A. No.
Q. Did you tell that to your mom?
A. Told what to my mom?
THE COURT: I think the question was—
[defense counsel] asked whether or not she told her mother that this
gentleman raped her after he came back from Arkansas after high school.
Is that what you’re asking?
[DEFENSE COUNSEL]: That’s correct.
THE COURT: So I think what he’s saying is—maybe we misunderstood
you.
Are you saying that, when [defendant] moved back to Rockford, after he
graduated high school, he raped you again?Is that what you’re saying?
[L.M.]: No. I don’t understand the question.
THE COURT: Okay. [Defense counsel,] back up and go over it again, if
you need to; but let’s break it down a little bit more for us, please. All right?
[DEFENSE COUNSEL]: Sure. I sure will.
BY [DEFENSE COUNSEL]:
Q. I’ll ask this a different way.
You told your mom that these things happened when you were 7 or 8; is
that right?
-5- A. When I was 7 or 8?
Q. Yeah. Is that what you told your mom?
A. I told—I didn’t tell my mom. I told the Carrie Lynn people, and they told
my mom.
Q. You told the people at Carrie Lynn that this happened when you were 7
or 8?
A. Yes.”
¶ 17 On redirect examination, the State elicited L.M.’s testimony that she was
uncertain how many times defendant had moved to and from Arkansas. She agreed she did not
remember because she was young when some of the events occurred. She was uncertain of the
dates but was sure the abuse had happened.
¶ 18 After redirect examination, the trial court questioned L.M.:
“Q. You told the people at Carrie Lynn that [the abuse] stopped when you
were about 9 because [defendant] moved to Arkansas; is that right?
Q. Now, I think you testified that you went to his high school graduation
down in Arkansas; is that right?
Q. And then he came back to Rockford after his high school graduation?
A. Yes.
Q. Did it happen again after he came back to Rockford? After he
graduated high school, did it happen again?
-6- A. It happened, but...
Q. ***
Did you tell the lady at the Carrie Lynn Center that, after [defendant] came
back from Arkansas, which means after he graduated high school, that something
happened again?
A. I didn’t say ‘again’, but I told her it happened.
I think there was a question about whether or not you told your mother
that, after [defendant] came to Rockford, after high school—did you tell her it
happened again, your mom? Did you tell her that?
A. I didn’t say ‘again’. I told her it happened.”
¶ 19 On redirect examination, L.M. agreed she might have been a little older or younger
than seven or eight when the abuse occurred.
¶ 20 D. Testimony of Rebecca Anderson
¶ 21 Detective Rebecca Anderson of the Rockford Police Department, the State’s final
witness, testified she observed a March 24, 2022, interview of defendant conducted by “Detective
Martin.” During the interview, defendant stated he was born on June 19, 1999, and graduated from
high school in 2018. He had lived in the same household as L.M. twice. First, he lived there when
he was 13 to 16 years old, before he returned to live with his mother in Arkansas. Second, he lived
there for five to six months after he graduated from high school, before he joined his mother “near
Machesney,” that is, in Illinois.
¶ 22 E. Defendant’s Evidence: Testimony of Teresa Leak
-7- ¶ 23 Defendant called his mother, Teresa Leak, as his sole witness. Leak testified, in
June 2016 and before his seventeenth birthday, defendant came to live with her in Arkansas. He
started his junior year of high school in Arkansas and graduated from high school in Arkansas in
May 2018. Before he moved to Arkansas, he had been living in Rockford with his father, in other
words, in L.M.’s household. At the end of May 2018, he moved back to the Rockford household.
In November 2018, he started living with Leak again, this time in Rockford. She was confident
defendant had not returned to Rockford while he was going to high school in Arkansas.
¶ 24 F. The Trial Court’s Posttrial Rulings
¶ 25 The trial court denied defendant’s motion for a directed finding at the close of
evidence. Defendant argued, because L.M. testified the abuse stopped when defendant moved to
Arkansas, something that occurred before he was 17, the State could not prove he was 17 or older
at the times L.M. testified he assaulted her.
¶ 26 The trial court found the State had failed to prove defendant was 17 or older when
he touched L.M.’s vagina with his hand (the count I assault). It deemed the State had failed to
prove L.M. was not 7 years old or younger when this assault occurred; it thus could not exclude
the possibility defendant was no older than 16 years old at the time. The court noted the “evidence
[was] unrebutted that [defendant] moved to Arkansas before his 17th birthday and did not come
back until after his high school graduation in May of 2018.”
¶ 27 The trial court found defendant guilty of the second count predatory criminal sexual
assault of a child, which alleged defendant penetrated L.M.’s vagina with his penis (the count II
assault). The court deemed L.M.’s testimony “to have been very credible.” It said this conclusion
was influenced by L.M.’s willingness to admit uncertainty. It believed L.M.’s testimony of both
assaults, but it said her testimony failed to establish the count I assault did not occur during
-8- defendant’s first stay in the household, i.e., when the evidence suggested defendant was 16 years
old or younger. It noted L.M. had testified the pattern of assaults ended when L.M. was nine years
old, which was when defendant moved back in with his mother, albeit not in Arkansas as L.M.
thought.
¶ 28 The trial court concluded L.M. was right about everything except the state to which
defendant moved the second time he left L.M.’s household to live with his mother. It believed
L.M. when she testified the count II assault occurred when defendant returned from Arkansas. It
said L.M.’s statement defendant had moved to Arkansas at the end of this time had little
significance, as L.M. was not someone who needed to keep track of defendant’s address.
¶ 29 Defendant moved for reconsideration of the finding of guilt or, alternatively, for a
new trial. He argued L.M.’s testimony was often unclear, but it was clear both assaults occurred
before defendant moved to Arkansas. He contended the trial court could not find he was guilty
beyond a reasonable doubt in the face of that testimony.
¶ 30 The trial court denied the motion, again stating L.M.’s testimony was clear and
consistent but mistaken only on the matter of where defendant had moved when he left L.M.’s
home in 2018.
¶ 31 The trial court sentenced defendant to six years’ imprisonment.
¶ 32 This appeal followed.
¶ 33 II. ANALYSIS
¶ 34 On appeal, defendant raises two claims. First, he argues the evidence was
insufficient for the trial court to find he was 17 years old or older when the assault of which the
court found him guilty occurred. Second, he argues, in the alternative, counsel was ineffective for
-9- asking the question that caused L.M. to state defendant “raped” her “[a]fter he moved back from
Arkansas.”
¶ 35 A. Sufficiency of the Evidence
¶ 36 Defendant argues the evidence here was insufficient because the State failed to
offer adequate proof of one element of predatory criminal sexual assault of a child: the offender
was “17 years of age or older” (720 ILCS 5/11-1.40(a)(1) (West 2018)) when the charged act of
sexual contact occurred. We disagree.
¶ 37 We address a question of the sufficiency of the evidence under the familiar standard
of Jackson v. Virginia, 443 U.S. 307 (1979). People v. McLaurin, 2020 IL 124563, ¶ 22, 162
N.E.3d 252 (noting Illinois’s adoption of the Jackson standard). Under that standard, “When a
court reviews a challenge to the sufficiency of the evidence, the question 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.’ ” (Emphasis in original.) Id.
(quoting Jackson, 443 U.S. at 319). “The testimony of a single witness is sufficient to convict if
the testimony is positive and credible.” People v. Gray, 2017 IL 120958, ¶ 36, 91 N.E.3d 876.
“Minor discrepancies in testimony affect only its weight and will not render it unworthy of belief.
[Citation.] In addition, where inconsistencies in testimony relate to collateral matters, they need
not render the testimony of the witness as to material questions incredible or improbable.” Id. ¶ 47.
“It is the responsibility of the trier of fact to resolve conflicts in the testimony, weigh the evidence,
and draw reasonable inferences from the facts.” People v. Bradford, 2016 IL 118674, ¶ 12, 50
N.E.3d 1112. When it addresses the sufficiency of the evidence, a reviewing court must not “retry
the defendant, nor *** substitute [its] judgment for that of the trier of fact.” McLaurin, 2020 IL
- 10 - 124563, ¶ 22. “A conviction will not be reversed simply because the evidence is contradictory or
because the defendant claims that a witness was not credible.” Gray, 2017 IL 120958, ¶ 36.
¶ 38 Defendant here contends, although L.M. initially testified during cross-examination
the assault occurred after he returned from Arkansas, “later in her testimony” she “equivocated”
on the point. The “equivocation” was L.M. said both the assault occurred when defendant returned
from Arkansas and before he went to live with his mother in Arkansas. He further notes, in her
disclosure to A.M., L.M. described the assaults as occurring when she was seven or eight years
old, whereas she was nine when he lived in her household after returning from Arkansas. He
contends, because of his and her relative ages, and because it was uncontested he was in Arkansas
before his seventeenth birthday, a rational trier of fact could not have rejected the possibility L.M.’s
testimony referred to an assault occurring when he was under the age of 17 or, alternatively,
occurring when he was in Arkansas.
¶ 39 We conclude the evidence was sufficient. To be sure, L.M.’s description of the
count II assault as occurring both during the period he lived in her household after he graduated
from high school and before he returned to his mother in Arkansas conflicted with the evidence he
returned to his mother in Illinois after that stay. Further, L.M.’s statements suggesting the assaults
occurred when she was seven or eight contained a trace of ambiguity when taken with her
statements the assaults stopped when she was nine. However, her testimony the count II assault
occurred after defendant returned from Arkansas (i.e., after he was 17) was clear and concerned
her direct experience. Moreover, L.M.’s seemingly incorrect testimony concerning defendant’s
address after he left her home for the second time did not detract from her credibility. After all,
L.M. was only 13 years old at the time of the trial and was testifying regarding events that occurred,
- 11 - at the most recent, not quite five years earlier. Further, as the trial court noted, she had no specific
reason to remember defendant’s new address.
¶ 40 Defendant argues L.M.’s statements the assaults ended when he returned to
Arkansas point to the stay in L.M.’s household ending when he was 16 as the stay during which
the assaults occurred. Certainly, these statements favored defendant. However, the trial court did
not act irrationally in giving more weight to L.M.’s firsthand identification of the period in which
the count II assault took place than to her apparently secondhand statement about where defendant
went after he committed the count II assault. L.M., who testified she had been to defendant’s high
school graduation, also testified the count II assault occurred after that graduation. Her
identification of that period as when the assault occurred was based on her own knowledge.
However, nothing in the evidence suggests L.M. had personal knowledge of where defendant
moved after his post-high-school stay in L.M.’s household. As the court noted, she had no reason
to keep track of his forwarding address. A mistake about defendant’s new address would be a
different and lesser class of mistake than one concerning the events within L.M.’s personal
knowledge. The court’s role as the trier of fact was to determine the credibility of the witnesses.
A key determination it made was L.M. was a credible witness—one who remembered her own life
history—but nevertheless had imperfect recollections of less central points. Such a determination
was one a rational trier of fact could make.
¶ 41 B. Ineffective Assistance of Counsel
¶ 42 Defendant next contends his counsel was ineffective for asking the question which
caused L.M. to respond defendant “raped” her “[a]fter he moved back from Arkansas.” The State
argues the information at issue would have been revealed regardless, and therefore defendant
suffered no prejudice from counsel’s question. We disagree with defendant.
- 12 - ¶ 43 “Both the United States and Illinois constitutions guarantee criminal defendants the
right to the effective assistance of counsel.” People v. Hale, 2013 IL 113140, ¶ 15, 996 N.E.2d
607. To establish ineffective assistance of counsel, a defendant must show both (1) his counsel’s
representation fell below an objective standard of reasonableness and (2) the deficient performance
of counsel prejudiced defendant. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); see
People v. Albanese, 104 Ill. 2d 504, 526-27 (1984) (adopting the Strickland standard). When an
ineffective-assistance claim is raised for the first time on appeal, “our consideration of the issue is
equivalent to a de novo review.” People v. Jefferson, 2021 IL App (2d) 190179, ¶ 26, 190 N.E.3d
323.
¶ 44 The Strickland standard for deficient performance requires “[j]udicial scrutiny of
counsel’s performance [to] be highly deferential.” Strickland, 466 U.S. at 689.
“A fair assessment of attorney performance requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time.” Id.
Therefore, to show defense counsel acted unreasonably, a defendant must overcome the
presumption counsel’s choice was an appropriate strategic choice:
“Because of the difficulties inherent in making the evaluation, a court must indulge
a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action ‘might be
considered sound trial strategy.’ ” Id.
- 13 - ¶ 45 Under the second prong of Strickland, an “error by counsel, even if professionally
unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had
no effect on the judgment.” Id. at 691. Strickland therefore requires a defendant to show a
reasonable probability counsel’s errors affected the outcome of the proceeding. See id. at 694
(“The defendant must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.”).
¶ 46 We find no rule in Illinois law under which a question eliciting prejudicial evidence
is per se unreasonable. If the circumstances of the case are consistent with a high-risk question
being a strategic choice, and an answer to the question is prejudicial to the defendant, the defendant
still bears the burden of showing that asking the question was not a sound strategic choice.
Defendant has not overcome this burden.
¶ 47 In this case, we hold defendant has failed to satisfy Strickland’s first prong. Given
the trial court’s reliance on the time periods established by L.M.’s testimony under
cross-examination and the court’s clarifying questions, we have difficulty saying the initial
questions did not prejudice defendant. However, this is a matter of hindsight.
¶ 48 At the close of the State’s questioning of L.M., defense counsel faced a dilemma.
He must have known Leak’s testimony would tend to establish defendant had returned to Arkansas
only once—just before his seventeenth birthday, which, given his June 19, 1999, birthdate, was on
June 19, 2016. L.M. was born on April 24, 2009, so she turned seven on April 14, 2016. L.M.
stated the abuse occurred when she was seven or eight. Thus, if one took all the testimony at face
value except L.M.’s statement the abuse stopped when she was nine, one would conclude the abuse
occurred after L.M.’s seventh birthday on April 24, 2016, and before defendant’s seventeenth
- 14 - birthday on June 19, 2016. But defense counsel also knew Leak’s testimony would establish
defendant returned to L.M.’s household after he graduated from high school—not long after L.M.’s
April 24, 2018, ninth birthday—and went back to join Leak in November 2018, when L.M. was
still nine. Given the delay in reporting and L.M.’s ages at the relevant times, a trier of fact might
be inclined to conclude L.M.’s testimony the abuse stopped when she was nine was most likely
accurate and thus reason the abuse occurred during defendant’s second stay in L.M.’s household.
¶ 49 Defense counsel would thus have three possibilities to consider when weighing
whether to ask L.M. if “anything ever happen[ed] with [defendant] after he moved back to
Rockford.” First, he would have to decide how likely it would be for the trial court to decide L.M.’s
statement the abuse stopped when she was nine was the dispositive evidence as to defendant’s age.
Second, he would have to consider whether, under the deferential standard of Jackson, this court
would sustain a conviction based on L.M.’s testimony regarding when the abuse stopped. Finally,
he would have to decide whether L.M.’s sense of the timeline was based on her knowledge of
when defendant returned to Arkansas or her certainty about her age when the abuse stopped.
¶ 50 The critical matter here is recognizing L.M.’s statement the abuse stopped when
she was 9 gave the trial court some basis to conclude defendant was at least 17 when the charged
actions occurred. In other words, when defense counsel began his cross-examination of L.M., the
State had offered some evidence in support of the age-of-the-offender element of predatory sexual
assault of a child. Counsel thus had to decide what the trial court would make of this evidence,
what this court might potentially make of this evidence, and how those considerations weighed
against the risks of questioning L.M. about what happened after defendant came back from
Arkansas. This was not a simple choice. Further, where the sufficiency of the evidence is
debatable, a reasonable defense attorney might consider information derived from privileged
- 15 - communications with the defendant when deciding whether high-risk cross-examination is
appropriate. Thus, any conclusion defense counsel’s choice was unreasonable must rely on
hindsight. Defendant has therefore not overcome the presumption counsel’s conduct was the
product of sound trial strategy.
¶ 51 Defendant argues, under cases such as the First District’s People v. Bailey, 374 Ill.
App. 3d 608, 872 N.E.2d 420 (2007), defense attorneys are “ineffective when they elicit testimony
on cross[-]examination which proves a critical element of the State’s case.” However, we find
Bailey and such related cases to be distinguishable. The Bailey court stated: “This court has held a
defense attorney who elicits damaging testimony that proves an element of the State’s case may
be found to have provided ineffective assistance.” (Emphases added.) Id. at 614. It concluded
counsel was ineffective because it could not “find a valid trial strategy in defense counsel’s pursuit
of [the] line of questioning [at issue.]” Id.
¶ 52 A defense attorney is not ineffective merely because he or she elicits prejudicial
evidence. The reasonableness prong of Strickland cannot vanish in such instances. To be sure, if
at the time a defense attorney elicits the damaging testimony, the State has failed to offer any
evidence to prove an element of an offense, it will generally be difficult to defend the
reasonableness of asking a question creating a risk of changing the situation in the State’s favor.
Further, it is equally hard to defend the reasonableness of a question which clearly cannot benefit
the defendant. Neither of these considerations apply here.
¶ 53 III. CONCLUSION
¶ 54 For the reasons stated, we affirm the trial court’s judgment.
¶ 55 Affirmed.
- 16 -