People v. Morrison

2020 IL App (1st) 172626-U

• Court: Appellate Court of Illinois
• Decided: November 25, 2020
• Docket: 1-17-2626
• Status: Unpublished

Opinion

2020 IL App (1st) 172626-U Nos. 1-17-2626, 1-18-0612 (cons.) Fourth Division November 25, 2020 ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________

) THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) of Cook County. Plaintiff-Appellee, ) ) Nos. 12 CR 17053 v. ) 12 CR 17054 ) WILLIE MORRISON, ) The Honorable ) Alfredo Maldonado, Defendant-Appellant. ) Judge Presiding. ) ______________________________________________________________________________

PRESIDING JUSTICE GORDON delivered the judgment of the court. Justices Hall and Lampkin concurred in the judgment.

ORDER

¶1 Held: The trial court’s judgment in each of defendant’s convictions is affirmed, where: (1) the indictments in both cases were not unreasonably broad, (2) any error in cross-examining defendant did not rise to the level of plain error, (3) the victims’ aunt’s reference to defendant as a “predator” in minor T.W.’s case did not constitute reversible error, and (4) the prosecutor’s comments during opening and closing in minor D.W.’s case were not improper.

¶2 After a jury trial, defendant Willie Morrison was convicted of predatory criminal sexual

assault of a child and aggravated criminal sexual abuse of minor T.W., for which he was

sentenced to a total of 67 years with the Illinois Department of Corrections (IDOC). Following

that conviction, and after another jury trial, defendant was convicted of predatory criminal

sexual assault of minor D.W., T.W.’s sister, for which he was sentenced to three concurrent Nos. 1-17-2626, 1-18-0612 (cons.)

terms of natural life, consecutive to the 67-year sentence he received in T.W.’s case. Defendant

appeals his convictions in both cases, and we consolidated defendant’s appeals of the two

cases, as they involve similar facts and raise similar issues. In both cases, defendant contends

that reversal is warranted (1) because the indictment alleged an unreasonably broad time period

and (2) because, in each case, the prosecutor improperly asked defendant to comment on the

veracity of the State’s witnesses. In T.W.’s case, defendant also claims that the trial court erred

in permitting a State’s witness to refer to defendant as a “predator.” Finally, in D.W.’s case,

defendant claims that the State’s comments in opening and closing were improper and required

reversal. For the reasons set forth below, we affirm the trial court’s judgment in both cases.

¶3 BACKGROUND

¶4 I. Pretrial Proceedings

¶5 Defendant was originally charged with six counts of predatory criminal sexual assault of a

child and three counts of aggravated criminal sexual abuse in case No. 12 CR 17053, for his

alleged conduct with respect to three victims: sisters T.W., D.W., and A.W., all of whom were

under 13 at the time that the alleged conduct occurred. The cases were later separated, and the

ultimate charges defendant faced in each case were as follows. In case No. 12 CR 17053,

defendant was charged with three counts of predatory criminal sexual assault of a child based

on contact between defendant’s penis and D.W.’s vagina and anus, and between defendant’s

mouth and D.W.’s vagina, all occurring when D.W. was under 13 years old. The contact was

alleged to have occurred “on or about December 19, 2006 and continuing on through December

18, 2011.” In case No. 12 CR 17054, defendant was charged with two counts of predatory

criminal sexual assault of a child based on contact between defendant’s penis and T.W.’s

vagina and anus, and two counts of aggravated criminal sexual abuse based on defendant’s

2 Nos. 1-17-2626, 1-18-0612 (cons.)

touching T.W.’s buttocks and breasts for the purpose of sexual gratification, all occurring when

T.W. was under 13 years old. All of the contact was alleged to have occurred “on or about

March 22, 2005 and continuing on through July 02, 2011.” Finally, in case No. 12 CR 17055,

defendant was charged with one count of predatory criminal sexual assault of a child based on

contact between defendant’s penis and A.W.’s anus, and one count of aggravated criminal

sexual abuse based on defendant’s touching A.W.’s buttocks for the purpose of sexual

gratification, all occurring when A.W. was under 13 years old. Case no. 12 CR 17055 was later

dismissed and is not at issue on appeal.

¶6 The State elected to proceed first on T.W.’s case, No. 12 CR 17054, and, on February 10,

2014, the State filed a motion in limine seeking to introduce certain statements made by T.W.

under section 115-10 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-10

(West 2012)). The State’s motion in limine was granted after a hearing, and defendant does not

challenge the admission of this evidence on appeal.

¶7 On October 8, 2014, the State filed a motion in limine seeking to introduce evidence of

other crimes in T.W.’s case under section 115-7.3 of the Code (725 ILCS 5/115-7.3 (West

2012)). Specifically, the State sought to introduce evidence of (1) acts allegedly committed by

defendant against T.W.’s sisters, D.W. and A.W.; (2) a proposition defendant allegedly made

to one of T.W.’s relatives; and (3) a prior sexual assault defendant allegedly committed against

his biological daughter in 2001, for which he was acquitted after a jury trial. The State also

filed a similar motion in D.W.’s case on the same day. After a hearing, the trial court denied

the State’s motion in limine with respect to using the evidence to show defendant’s propensity

to commit such acts, but permitted the evidence of defendant propositioning the relative to the

extent that it explained the timing of T.W.’s outcry. The State filed a motion to reconsider and,

3 Nos. 1-17-2626, 1-18-0612 (cons.)

on February 27, 2017, the court granted the State’s motion to reconsider in part, permitting the

State to introduce evidence of defendant’s alleged conduct toward T.W.’s sisters. Defendant

does not challenge the court’s order or the use of other-crimes evidence on appeal.

¶8 II. Trial

¶9 While defendant was separately tried and convicted for his conduct with respect to each

victim, most of the same witnesses testified at each trial, 1 and defendant does not raise any

issues with the sufficiency of the evidence at either trial, so we discuss the evidence presented

at both trials together.

¶ 10 To the extent that specific portions of testimony or argument are required in order to

consider defendant’s arguments on appeal, we will quote such testimony or argument when we

discuss that issue in our analysis below.

¶ 11 As noted, the State elected to proceed to trial first in T.W.’s case (case No. 12 CR 17054);

the first trial ended in a mistrial due to a hung jury, but the State immediately retried defendant,

with the second trial beginning on July 21, 2017. The jury in the second trial returned a guilty

verdict on all four counts on July 25, 2017, and the trial court entered judgment on the verdict.

Defendant filed a motion for a new trial, which was denied, and defendant was sentenced to

30 years for each of the predatory criminal sexual assault of a child charges, and 7 years for

each of the aggravated criminal sexual abuse charges. The sentences for aggravated criminal

sexual abuse were to be served concurrently, and the sentences for predatory criminal sexual

assault of a child were to be served consecutively, for a total sentence of 67 years in the IDOC.

1 The sole exception is an assistant State’s Attorney (ASA) who testified at T.W.’s trial that he observed a forensic interview of T.W. and identified a video of the interview, which was then played for the jury. 4 Nos. 1-17-2626, 1-18-0612 (cons.)

¶ 12 In D.W.’s case (case No. 12 CR 17053), trial began on January 26, 2018. The jury returned

a guilty verdict on all three counts of predatory criminal sexual assault of a child on January

30, 2018, and the trial court entered judgment on the verdict. Defendant filed a motion for a

new trial, which was denied, and defendant was sentenced to natural life for each of the

charges, to be served concurrently, but which were to be served consecutively to the sentence

in T.W.’s case.

¶ 13 A. T.W.

¶ 14 T.W., who was 17 at the time of the trial in her case, testified that she had two sisters, D.W.

and A.W., and a brother, K.M., who was defendant’s son. T.W. testified that she was currently

living with her grandmother, but that she previously lived with her mother and defendant, who

she referred to as her stepfather. T.W. testified that the first time defendant engaged in

inappropriate conduct, she was five years old. She was in her grandmother’s bedroom,

watching cartoons on television and eating a grilled cheese sandwich while her mother slept in

another room, when defendant entered the bedroom, removed her clothing, applied Vaseline

to her vagina, and placed his penis inside her vagina. After he was finished, he wiped her off,

put her clothes back on, and left the room. T.W. did not tell anyone what had occurred because

she did not understand what had happened.

¶ 15 T.W. testified that another time, she was excited about taking photos for her kindergarten

graduation, and was upset when she discovered that her mother could not afford to purchase

the photos. Defendant told her that he would pay for the photos if she would “do something,”

which T.W. did not understand. Defendant again removed her clothing, applied Vaseline to

her vagina, and placed his penis inside her vagina. Defendant also gave her the money to

purchase the photos.

5 Nos. 1-17-2626, 1-18-0612 (cons.)

¶ 16 T.W. testified that defendant continued with his conduct from the time she was 5 until she

was 11 or 12 and that he typically touched her at night. T.W. testified that she shared a room

with her sisters and sometimes a cousin, and would be asleep on the bed or on the floor.

Defendant would enter the room quietly and wake her with a whisper or a tap, then remove her

clothing. T.W. testified that, during these times, defendant’s penis would touch her vagina and

sometimes his hands would touch her breasts or buttocks.

¶ 17 T.W. testified that she lived in five or six different residences with her mother and

defendant, and that defendant engaged in the same conduct in all of them. The frequency of

defendant’s conduct decreased at the last residence, which was where they were living when

she was 11 or 12. T.W. testified that, in all of the residences she lived in, she shared a room

with her sisters and sometimes a cousin. She never observed defendant engaging in any

conduct with her sisters.

¶ 18 T.W. testified that defendant’s conduct also occurred outside the home, such as in the van

that he drove. T.W. testified that defendant’s van had three rows, with blinds and tinted

windows that made it difficult to see inside, and that he touched her 5 to 10 times inside the

van. T.W. recalled one instance, when she was eight or nine, when she entered the van because

defendant told her that they were going to the store to buy chips. After they were finished at

the store, they returned to the van, which was parked on a side street, and defendant instructed

her to go to the last row of the van, where he removed her clothing, applied Vaseline to her

vagina, and placed his penis inside her vagina. A police vehicle drove by, so defendant became

scared and moved to the driver’s seat, but returned to the back when the police were gone.

T.W. recalled this instance because she “would have thought the police would have caught on

and would have been [suspicious] about the van,” but they did not stop.

6 Nos. 1-17-2626, 1-18-0612 (cons.)

¶ 19 T.W. testified that, on approximately five occasions, defendant took her to his workplace

at H&R Block. Once, when she was 9 or 10, he took her to his workplace and, after he was

finished with his work, T.W., defendant, and defendant’s friend left to obtain food, then

returned to the office. T.W. sat in the back room eating and, when she went into the bathroom,

defendant followed her; T.W. could not recall if the friend was still at the office. Defendant

grabbed her from behind by the waist, pushed her towards the sink, removed her clothing, and

inserted his penis into her vagina.

¶ 20 T.W. testified that, when she was 10 or 11, her grandfather died. She was at home with her

sister, her cousin, and defendant when defendant asked for her phone. T.W. went to retrieve it,

and defendant pulled her into his bedroom, where he pushed her onto the bed, removed her

clothing, and placed his penis into her vagina. T.W. testified that she was able to remember

this day specifically “[b]ecause it was the day I lost my grandfather.”

¶ 21 T.W. testified that defendant’s penis also touched her buttocks when she was 10 or 11. She

was at the park with her siblings, and had returned to the van for something. Defendant

followed her to the van, and instructed her to move to the backseat, against a window ledge.

Defendant then told T.W. that she was “a big girl now” and inserted his penis into her anus.

T.W. testified that he repeated this conduct on other occasions, but “not that many.”

¶ 22 T.W. testified that, when she was 10, she was on a chair in her bedroom while her sister

and cousin were sleeping in the bed. Defendant entered the room, pulled her to the floor,

removed her clothing, and placed his penis into her vagina. T.W.’s sister began to move as

though she was waking up, and defendant placed his hands around T.W.’s neck and said “if

you say anything I will choke you to death.” T.W. testified that this was the only time he

threatened her.

7 Nos. 1-17-2626, 1-18-0612 (cons.)

¶ 23 T.W. testified that, during the years when defendant was touching her, she did not tell

anyone because she was scared. However, in June 2012, she and her sisters took a summer trip

to Iowa to visit her aunt and her cousins. One day, someone called her aunt, which led to her

questioning T.W. and her sisters about defendant. T.W. did not say anything because she was

still scared. Later, T.W. was sleeping, and her aunt woke her and again questioned her, “so it

just burst out.” T.W. was crying and felt a sense of relief “because it was like something that I

was holding in for a long time.” A few days later, her aunt took them back to Chicago, where

she called the police. After she called the police, she took them to the Children’s Advocacy

Center, where T.W. spoke to a woman; T.W. testified that she was truthful with the woman

“[b]ecause I wanted her to know the truth and to do something about it.” After T.W. returned

to Chicago, she and her siblings never lived with defendant or her mother again, and her

grandmother became their legal guardian.

¶ 24 B. D.W.

¶ 25 D.W., who was 18 years old at the time of the trial in T.W.’s case and 19 at the time of her

own, testified that she was the oldest of her siblings. D.W. testified that she was eight years

old the first time that defendant touched her inappropriately. She was sleeping in her bedroom,

when defendant came into the room, pulled her pants down, and inserted his penis into her

vagina. D.W. was “shocked.” On another occasion, defendant entered her room one night while

she and a sibling were sleeping, and inserted his penis into her buttocks and into her vagina.

Once, he tried to choke her to keep her quiet. D.W. testified that defendant once also touched

his lips to her vagina when she was 10.

¶ 26 D.W. testified that they lived in a number of residences with her mother and defendant,

and that defendant touched her inappropriately at each address, except for the last address.

8 Nos. 1-17-2626, 1-18-0612 (cons.)

D.W. testified that she shared a room with her siblings at each address. She never observed

defendant abusing or threatening any of her sisters.

¶ 27 D.W. testified that in June 2012, she and her sisters traveled to Iowa to spend the summer

with their aunt. While she was in Iowa, she told her aunt what defendant had done to her.

¶ 28 C. A. W.

¶ 29 A.W., who was 15 years old at the time of the trial in T.W.’s case and 16 at the time of

D.W.’s, testified that she lived with her grandmother and her siblings; A.W. was the youngest

of the sisters. A.W. testified that defendant first touched her “in a bad way” when she was five

years old, when he inserted his penis into her buttocks while she was in her bedroom sleeping.

A.W. testified that defendant touched her inappropriately “more than ten times.”

¶ 30 D. Victims’ Aunt

¶ 31 The victims’ aunt testified that she lived in Des Moines, Iowa, and previously lived in

Chicago with her mother and her sister. Her sister had four children: A.W., T.W., D.W., and

K.M.; K.M. was defendant’s son. When the victims’ aunt lived in Chicago, defendant was also

living at the same residence, and she thought of him as “a big brother that you never had.”

¶ 32 In the summer of 2012, she traveled to Chicago to pick up A.W., T.W., and D.W., who

were planning on spending the summer in Iowa with her daughter, who was similar to them in

age. On July 7, 2012, she received a text message from one of her sisters, which led her to

speak to the girls. She first spoke to D.W., then spoke to T.W. and A.W. at the same time.

When she first spoke to T.W., T.W. denied that defendant had ever touched her inappropriately,

but her aunt “[could] tell that she wasn’t telling the truth” because of her demeanor. On July

10, her daughter approached her and told her that T.W. wanted to speak with her. The aunt

found T.W. and A.W. in her daughter’s room, crying. She asked what was wrong, and T.W.

9 Nos. 1-17-2626, 1-18-0612 (cons.)

told her that defendant had been touching T.W. on her “private parts,” gesturing to her buttocks

and her vagina. She asked T.W. where this would happen, and T.W. told her that defendant

would take her to secluded areas, such as a Pizza Hut or a closed car wash. T.W. told her that

defendant would trick her by telling her that they were going to her grandmother’s house or to

the store, and then pull over where he felt safe. T.W. informed her that she had not said

anything earlier because she was scared and that defendant had threatened her.

¶ 33 After the conversation, the aunt began gathering money to pay for a trip back to Chicago;

she had contacted the Des Moines police department but was told that they could not do

anything. They returned to Chicago on July 23, 2012, and she took the girls straight to the

police department; she was told to wait until the next day, so they stayed overnight at the home

of her godsister. The next day, they contacted the police from the home of a relative and she

took the girls to Comer Children’s Hospital; a few days later, she brought them to the

Children’s Advocacy Center to be interviewed. The aunt eventually returned to Iowa and the

girls stayed with their grandmother.

¶ 34 E. Sergeant Timothy Fenton

¶ 35 Sergeant Timothy Fenton testified that he was a patrol office on July 23, 2012, and received

an assignment concerning a criminal sexual assault. He and his partner traveled to an address,

where they met two of the victims’ aunts; due to the victims’ ages, they did not interview them

directly. After speaking with the two adults, Fenton completed a police report and called the

Department of Children and Family Services (DCFS), as it was a crime involving children, as

well as a special investigations unit that specifically handled child sex crimes. The special

investigations unit was located at the Children’s Advocacy Center, which also contained

offices for DCFS workers, health care professionals, and forensic interviewers; Fenton testified

10 Nos. 1-17-2626, 1-18-0612 (cons.)

that the Children’s Advocacy Center was “just basically a setting where everybody is there to

take care of the kids.” DCFS advised Fenton to take the girls to the emergency room of a

hospital, and Fenton brought them to Comer Children’s Hospital.

¶ 36 F. Dr. Norell Rosado

¶ 37 Dr. Norell Rosado testified that he is a child abuse pediatrician who was working at the

Children’s Advocacy Center when the girls were brought in; Rosado testified as an expert in

both pediatrics and in child abuse pediatrics with no objection. Rosado testified that, during

his career, he had assessed “probably over 2,000 cases” for possible sexual abuse, and had

given opinions of sexual abuse in approximately 10% of the cases.

¶ 38 Rosado testified that he was working at the Children’s Advocacy Center on August 7, 2012,

and examined T.W., D.W., and A.W. T.W. was 12 years old at the time, D.W. was 13, and

A.W. was 10. The three children had been examined at the emergency room of a hospital, and

had completed forensic interviews, so Rosado reviewed that information prior to his

examination. Rosado did not feel the need to interview the girls further, but did perform another

exam on each of them because he felt that the original exams had not been sufficient.

¶ 39 With respect to T.W., Rosado testified that T.W. had a very thin hymen, which became

thinner “between the 6:00 and the 8:00 *** position.” Rosado explained that this finding “is

concerning for vaginal penetrating trauma.” Rosado further explained that the area between

“3:00” and “9:00” was the area that became most traumatized during sexual intercourse, which

would cause thinning of the hymen in that area. Rosado also performed an exam of her anal

cavity, which was normal. Rosado testified that this was not surprising, because while it was

rare to observe vaginal findings of abuse, it was even more rare to observe anal findings, given

the function of the organ and its ability to permit the passage of stool. Rosado opined that, to

11 Nos. 1-17-2626, 1-18-0612 (cons.)

a reasonable degree of medical certainty, T.W. was sexually abused, given the medical findings

and her disclosure of vaginal and anal penetration. Rosado further testified that T.W.’s forensic

interview was consistent with his findings and that he found it significant that she was able to

recall details of what happened to her, such as locations and times, and the fact that the

incidents were sometimes correlated with significant events, such as her grandfather dying.

Rosado also found it significant that T.W. mentioned the use of lubrication, which was

inappropriate knowledge for a child her age.

¶ 40 With respect to D.W., Rosado testified that she also had findings that were concerning for

vaginal penetrating trauma. Rosado testified that there were certain positions in the hymen in

which some women naturally have “notches” or anatomical variances, but there were other

positions in which it would not be normal to observe such notches. D.W. had two deep notches

in the latter positions. As with T.W., D.W.’s anal exam was normal. Rosado opined that, to a

reasonable degree of medical certainty, D.W. was sexually abused, given the medical findings

and her disclosure of vaginal and anal penetration.

¶ 41 Finally, with respect to A.W., Rosado noted that she had not provided any history of penis-

to-vagina penetration but only penis-to-anus penetration. Her genital exam was normal, which

Rosado found unsurprising.

¶ 42 G. Defendant

¶ 43 Defendant took the stand on his own behalf, and testified that he met the victims’ mother

in 2004 and they moved in together in 2005. Defendant testified that he loved T.W., D.W., and

A.W., and referred to them as his children; he further testified that they considered him to be

a father figure to them. Defendant denied ever sexually assaulting any of them. Defendant

recalled T.W.’s kindergarten photos, and that she wanted to purchase them, but testified that

12 Nos. 1-17-2626, 1-18-0612 (cons.)

he thought that T.W.’s grandparents purchased the photos. Defendant testified that he worked

at H&R Block and that his workplace had a desk and a bathroom, but denied that he was ever

alone there. Defendant testified that there were occasions when he took one of the girls on

errands alone, including to work. Defendant also testified that he owned a van that had a third-

row seat.

¶ 44 ANALYSIS

¶ 45 As noted, defendant filed separate appeals from each conviction, and we consolidated

defendant’s appeals, as the two cases involve similar facts and raise similar issues. In both

cases, defendant contends that reversal is warranted (1) because the indictment alleged an

unreasonably broad time period and (2) because, in each case, the prosecutor improperly asked

defendant to comment on the veracity of the State’s witnesses. In T.W.’s case, defendant also

claims that the trial court erred in permitting the victims’ aunt to refer to defendant as a

“predator.” Finally, in D.W.’s case, defendant claims that the State’s comments in opening and

closing were improper and required reversal. We consider each of defendant’s arguments in

turn.

¶ 46 I. Indictment

¶ 47 Defendant first claims that reversal is warranted because the State prosecuted defendant in

each case under an indictment that alleged an unreasonably broad time period. A defendant

has the fundamental right to be informed of the nature and cause of the criminal accusations

made against him. U.S. Const., amend. VI; Ill. Const. 1970, art. I, § 8; People v. Meyers, 158

Ill. 2d 46, 51 (1994). This right is codified in section 111-3 of the Code of Criminal Procedure

of 1963 (725 ILCS 5/111-3 (West 2012)), which is “ ‘designed to inform the accused of the

nature of the offense with which he is charged so that he may prepare a defense and to assure

13 Nos. 1-17-2626, 1-18-0612 (cons.)

that the charged offense may serve as a bar to subsequent prosecution arising out of the same

conduct.’ ” Meyers, 158 Ill. 2d at 51 (quoting People v. Simmons, 93 Ill. 2d 94, 99-100 (1982)).

¶ 48 When the sufficiency of the charging instrument is challenged in a pretrial motion, the

standard of review is to determine whether the instrument strictly complies with the

requirements of section 111-3. People v. DiLorenzo, 169 Ill. 2d 318, 321-22 (1996); People v.

Carey, 2018 IL 121371, ¶ 21. However, where the sufficiency of the charging instrument is

challenged for the first time on appeal, “the standard of review is more liberal.” DiLorenzo,

169 Ill. 2d at 322. “In such a case, it is sufficient that the indictment apprised the accused of

the precise offense charged with enough specificity to (1) allow the preparation of his defense

and (2) allow pleading a resulting conviction as a bar to future prosecution arising out of the

same conduct.” DiLorenzo, 169 Ill. 2d at 322; Carey, 2018 IL 121371, ¶ 22. The sufficiency

of a charging instrument is a question of law subject to de novo review. Carey, 2018 IL 121371,

¶ 19. De novo consideration means that a reviewing court preforms the same analysis that a

trial judge would perform. People v. Begay, 2018 IL App (1st) 150446, ¶ 34.

¶ 49 In making this determination, the reviewing court may look to the record on appeal. Carey,

2018 IL 121371, ¶ 22. “ ‘Thus, the question is whether, in light of the facts of record, the

indictment was so imprecise as to prejudice defendant’s ability to prepare a defense.’ ” Carey,

2018 IL 121371, ¶ 22 (quoting People v. Phillips, 215 Ill. 2d 554, 562 (2005)). “If the

reviewing court cannot say that the charging instrument error inhibited the defendant in the

preparation of his or her defense, then the court cannot conclude that the defendant suffered

any prejudice.” Carey, 2018 IL 121371, ¶ 22.

¶ 50 In the case at bar, the indictments for T.W.’s and D.W.’s cases were similar. In case No.

12 CR 17053, defendant was charged with three counts of predatory criminal sexual assault of

14 Nos. 1-17-2626, 1-18-0612 (cons.)

a child based on contact between defendant’s penis and D.W.’s vagina and anus, and between

defendant’s mouth and D.W.’s vagina, all occurring when D.W. was under 13 years old. The

contact was alleged to have occurred “on or about December 19, 2006 and continuing on

through December 18, 2011.” In case No. 12 CR 17054, defendant was charged with two

counts of predatory criminal sexual assault of a child based on contact between defendant’s

penis and T.W.’s vagina and anus, and two counts of aggravated criminal sexual abuse based

on defendant’s touching T.W.’s buttocks and breasts for the purpose of sexual gratification, all

occurring when T.W. was under 13 years old. All of the contact was alleged to have occurred

“on or about March 22, 2005 and continuing on through July 02, 2011.” On appeal, defendant

claims that these indictments failed to sufficiently set forth the specific time periods in which

the alleged conduct occurred, thereby making it impossible for him to prepare a defense.

¶ 51 “The date of the offense is not an essential factor in child sex offense cases.” People v.

Guerrero, 356 Ill. App. 3d 22, 27 (2005). In cases involving the sexual abuse of a child,

“flexibility is permitted” regarding the date requirement of section 111-3. Guerrero, 356 Ill.

App. 3d at 27. “As long as the crime occurred within the statute of limitations and prior to the

return of the charging instrument, the State need only provide the defendant with the best

information it has as to when the offenses occurred.” Guerrero, 356 Ill. App. 3d at 27.

¶ 52 In the case at bar, we cannot find that the time periods alleged in the indictments inhibited

defendant in the preparation of his defense. We first note that defendant never sought to quash

or dismiss the indictment, and never argued below that the indictment was insufficient.

Additionally, each indictment provided defendant with notice of the charges against him,

including the time period encompassed by the charges. Moreover, despite defendant’s

contention to the contrary, the State filed a bill of particulars in each case. While the bill of

15 Nos. 1-17-2626, 1-18-0612 (cons.)

particulars did not narrow the time frame for the charges, each did provide the locations of the

alleged conduct, thereby providing additional detail. Defendant also does not contest that he

was provided with copies of any police reports, forensic interviews, and medical examinations

conducted in either case, all of which would have further provided information about specific

incidents, especially where T.W. was able to connect incidents with events such as her

kindergarten picture day and her grandfather’s death. Given this information, and in light of

the girls’ young ages at the time the abuse began, we cannot find that the indictments inhibited

defendant in his ability to prepare an adequate defense.

¶ 53 In reaching this conclusion, we find instructive the analysis set forth in People v. Albarran,

2018 IL App (1st) 151508. In that case, the defendant was indicted for multiple counts of

criminal sexual assault, predatory criminal sexual assault of a child, aggravated criminal sexual

abuse, and sexual relations within families, and the indictment alleged that the defendant

committed the offenses between November 24, 2003, and November 24, 2008. Albarran, 2018

IL App (1st) 151508, ¶ 3. The defendant requested a bill of particulars, and the State responded

that the incidents occurred “ ‘approximately six times’ ” within the five-year timespan.

Albarran, 2018 IL App (1st) 151508, ¶ 5. The State also informed the trial court that it had

provided the defendant with all of the discovery it had, including interviews with the victim

and police reports, which listed dates and times of the alleged incidents. Albarran, 2018 IL

App (1st) 151508, ¶ 5. On appeal, we found that “the indictment apprised defendant of the

precise offenses charged with enough specificity to allow preparation of his defense,” rejecting

his arguments that the five-year timespan was overbroad. Albarran, 2018 IL App (1st) 151508,

¶ 23. We found:

16 Nos. 1-17-2626, 1-18-0612 (cons.)

“[W]e do not believe that under the circumstances of this case that the five-year time

period alleged in each count of the indictment was so excessive as to be facially

unreasonable. Here, the alleged abuse occurred while [the victim] was between the ages

of 6 and 11 years old, and her age undoubtedly diminished her ability to recall the dates

or times of the alleged abuse. She was, however, able to provide some general

information regarding her age and the time of year when the abuse occurred. The State

provided this evidence to defendant, and it constituted the most particularized evidence

available. We agree with the circuit court’s assessment that the State could not provide

any more particularized information as to the dates of the abuse, and we conclude that

the indictment was not so broad or vague as to impair defendant’s constitutional right

to prepare a defense, particularly where defendant identifies no prejudice to his ability

to prepare a defense.” Albarran, 2018 IL App (1st) 151508, ¶ 31.

¶ 54 Similarly, in the case at bar, both T.W. and D.W. were young when the alleged abuse

occurred, with T.W.’s abuse beginning at age five and D.W.’s beginning at eight. Both were

able to provide general information about their ages and the locations of the alleged abuse,

with T.W. able to tie certain instances of abuse to specific events. The State provided this

information to defendant, and there is no indication that any more particularized evidence was

available. Consequently, we cannot find that the indictments impaired defendant’s ability to

prepare a defense. See also Guerrero, 356 Ill. App. 3d at 28-29 (finding dates in indictment

sufficient where the victims were first abused when they were about six years old and the

indictments and bill of particulars indicated that they were abused over a three-year time

period).

17 Nos. 1-17-2626, 1-18-0612 (cons.)

¶ 55 We find unpersuasive defendant’s reliance on the out-of-state case of People v. Keindl, 68

N.Y.2d 410 (N.Y. Ct. App. 1986), superseded by statute. The applicability of this case was

considered and rejected by the Albarran court, and we reach the same conclusion here. First,

as the Albarran court noted, both Keindl and State v. Baker, 411 S.C. 583 (2015), another case

cited by defendant, are cases from foreign jurisdictions, and “we are not bound to follow the

decisions of courts of last resort in our sister states, particularly where those decisions involve

interpretation of those states’ own constitutions and statutes.” Albarran, 2018 IL App (1st)

151509, ¶ 24. Additionally, both cases involved pretrial motions to quash indictments, unlike

the case at bar, and were decided based on the specific facts of those cases. Albarran, 2018 IL

App (1st) 151509, ¶ 24. As noted, the procedural posture of the challenge determines the

standard of review, so this difference alone renders defendant’s cases inapplicable.

Accordingly, we decline to apply defendant’s out-of-state cases to invalidate the indictments

at issue in the case at bar.

¶ 56 Defendant also argues that, in the alternative, trial counsel was ineffective in failing to

challenge the indictment. Every defendant has a constitutional right to the effective assistance

of counsel. U.S. Const. amend. VI; Ill. Const. 1970, art. I, § 8; People v. Domagala, 2013 IL

113688, ¶ 36. In order to determine whether a defendant was denied his or her right to effective

assistance of counsel, a reviewing court must apply the two-prong test set forth in Strickland

v. Washington, 466 U.S. 668, 687 (1984). People v. Colon, 225 Ill. 2d 125, 135 (2007) (citing

People v. Albanese, 104 Ill. 2d 504, 526 (1984) (adopting Strickland)). To prevail on a claim

of ineffective assistance of counsel under Strickland, a defendant must prove both (1) that his

or her attorney’s actions constituted a deficiency so serious as to fall below an objective

18 Nos. 1-17-2626, 1-18-0612 (cons.)

standard of reasonableness and (2) that this deficient performance prejudiced defendant.

Domagala, 2013 IL 113688, ¶ 36 (citing Strickland, 466 U.S. at 687).

¶ 57 To establish the first prong of the Strickland test, the defendant must show “that counsel’s

performance was objectively unreasonable under prevailing professional norms.” Domagala,

2013 IL 113688, ¶ 36. To establish the second prong, that this deficient performance prejudiced

the defendant, 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.

Domagala, 2013 IL 113688, ¶ 36 (citing Strickland, 466 U.S. at 694). “[A] reasonable

probability that the result would have been different is a probability sufficient to undermine

confidence in the outcome—or put another way, that counsel’s deficient performance rendered

the result of the trial unreliable or fundamentally unfair.” People v. Evans, 209 Ill. 2d 194, 220

(2004); Colon, 225 Ill. 2d at 135. A mistake in trial strategy or tactics, without more, does not

amount to ineffective assistance of counsel. People v. McGee, 373 Ill. App. 3d 824, 835 (2007)

(citing People v. Ward, 371 Ill. App. 3d 382, 434 (2007)). Counsel’s trial strategy is “ ‘virtually

unchallengeable.’ ” McGee, 373 Ill. App. 3d at 835 (quoting People v. Palmer, 162 Ill. 2d 465,

476 (1994)).

¶ 58 Since a defendant must satisfy both prongs of the Strickland test in order to prevail, a court

may dispose of the claim if either prong is missing. People v. Flores, 153 Ill. 2d 264, 283

(1992). Thus, if a court finds that defendant was not prejudiced by the alleged error, it may

dispose of the claim on that basis alone without further analysis. People v. Graham, 206 Ill. 2d

465, 476 (2003); People v. Albanese, 104 Ill. 2d 504, 527 (1984). The court does not need to

consider the first prong of the Strickland test when the second prong cannot be satisfied. People

v. Lacy, 407 Ill. App. 3d 442, 457 (2011) (citing Graham, 206 Ill. 2d at 476).

19 Nos. 1-17-2626, 1-18-0612 (cons.)

¶ 59 In the case at bar, we cannot find that trial counsel was ineffective for failing to challenge

the indictments. First, we note that defendant claims that had counsel done so, the State could

have been required to provide a bill of particulars. However, as noted, the State did provide a

bill of particulars in each case. Additionally, we cannot find that defendant was prejudiced by

the failure to challenge the indictments. While a challenge to the indictment would have

required the State to narrow the indictment to the extent possible, there is no indication that it

was even possible for the State to further refine the time period and, to the extent that the State

could do so, defendant was already provided that information through the police reports,

forensic interviews, and medical reports. Defendant was also able to provide a defense, which

was based on his claims that there were so many people around at all times that it would have

been impossible for him to have committed the conduct of which he was accused. While

defendant claims that he could have offered other defenses had there been more specificity as

to the dates, we cannot find that a challenge to the indictment would have altered his ability to

present those defenses. Accordingly, we cannot find that defendant’s trial counsel was

ineffective in failing to challenge the indictments.

¶ 60 II. Cross-Examination of Defendant

¶ 61 Next, defendant claims that, in each case, the prosecutor repeatedly asked defendant his

opinion as to the veracity of the State’s witnesses, warranting reversal. Defendant concedes

that he did not properly preserve this issue for review in either case. To preserve a purported

error for consideration by a reviewing court, a defendant must both (1) object to the error at

trial and (2) raise the error in a posttrial motion. People v. Sebby, 2017 IL 119445, ¶ 48.

“Failure to do either results in forfeiture.” Sebby, 2017 IL 119445, ¶ 48.

20 Nos. 1-17-2626, 1-18-0612 (cons.)

¶ 62 However, the plain-error doctrine permits a reviewing court to consider an unpreserved

claim (1) if a clear or obvious error occurred and the evidence is so closely balanced that this

error alone threatened to tip the scales of justice against the defendant, regardless of the

seriousness of the error, or (2) if a clear or obvious error occurred and 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 at defendant’s trial. Sebby, 2017 IL 119445,

¶ 48; People v. Piatkowski, 225 Ill. 2d 551, 565 (2007). Defendant asks us to consider his claim

under both prongs.

¶ 63 In a plain-error analysis, it is the defendant who bears the burden of persuasion. Sebby,

2017 IL 119445, ¶ 51. The first step under either prong of the plain-error doctrine is to

determine whether there was an error at trial and whether this error was clear or obvious. Sebby,

2017 IL 119445, ¶ 49; Piatkowski, 225 Ill. 2d at 565.

¶ 64 The proper scope of cross-examination is generally within the sound discretion of the trial

court and is reviewed only for an abuse of discretion. People v. Reese, 2017 IL 120011, ¶ 75

(“A trial court’s decisions on the admissibility of evidence and the scope of cross-examination

*** are reviewed for abuse of discretion.”); People v. Collins, 106 Ill. 2d 237, 269 (1985)

(“[t]he latitude to be allowed on cross-examination and rebuttal” is “within the sound discretion

of the trial court” and reviewed only for an “abuse of discretion”). However, it is improper to

ask a criminal defendant to opine regarding the truthfulness of other witnesses, because such

questions invade the jury’s function of determining for itself the credibility of the witnesses.

People v. Tolbert, 323 Ill. App. 3d 793, 807 (2001). While such questioning is improper, the

prejudice resulting therefrom must be “substantial” to warrant reversal. Tolbert, 323 Ill. App.

3d at 807; People v. Evans, 373 Ill. App. 3d 948, 961 (2007).

21 Nos. 1-17-2626, 1-18-0612 (cons.)

¶ 65 In the case at bar, defendant claims that he was asked at both trials to opine as to the veracity

of the witnesses. First, during cross-examination of defendant in T.W.’s case, the State

questioned defendant about T.W.’s testimony:

“Q. Now, when you heard [T.W.] tell the ladies and gentlemen of the jury that she

was alone in a van with you when you came in and raped her in that third row seat,

you’re telling the ladies and gentlemen of the jury here she lied?

A. Yes.

Q. And when [T.W.] took the stand and she told the ladies and gentlemen of the

jury that when you took her into the bathroom and you raped her in the bathroom of

the H&R Block, you’re telling us that she lied?

A. Yeah.

Q. And when [T.W.] came on the stand and she said when you guys were in the

van and you said you’re a big girl now, she lied to these ladies and gentlemen of the

jury; is that what you’re telling us?

Q. And you’re telling us that when she came in and she told the ladies and

gentlemen of the jury that you raped her over 20 times in all the different addresses,

she was lying to these people?

A. Yep.

Q. And on this forensic interview five years ago when she told the forensic

interviewer on tape five years ago that you would come into her room at night while

she was sleeping, she lied, correct?

A. Correct.

22 Nos. 1-17-2626, 1-18-0612 (cons.)

Q. She lied again about the same incident, about the grandfather on the tape, you’re

telling the ladies and gentlemen of the jury that she lied, correct?

Q. She lied five years ago and she lied today, correct?

***

Q. When he died that day, everyone in the house was sad, you remember that day,

correct?

Q. And so out of all the days that were the saddest days as a family, when [T.W.]

said that you raped her, that was a lie?

A. Correct.”

¶ 66 Similarly, during cross-examination of defendant in D.W.’s case, the State questioned

defendant about D.W.’s testimony:

“Q. Now, [defendant], you were in court here yesterday when [D.W.] got on the

stand and said that she was 8 years old when you came into her bedroom. Do you

remember that?

A. Yes, I was.

Q. And are you telling the ladies and gentlemen of the jury that when she told them

that you choked her at 8 years old while she was sleeping, are you telling them she was

lying?

23 Nos. 1-17-2626, 1-18-0612 (cons.)

Q. And are you telling the ladies and gentlemen of the jury that when you whispered

in her ear that, I will kill you if you tell anyone, are you telling these ladies and

gentlemen of the jury that she was lying?

A. She was lying.

Q. Are you telling the ladies and gentlemen of the jury that when she said you raped

her as a child when she was 8 years old, she was lying?

Q. Was she also lying when she said that you raped her when she was 9?

Q. Was she also lying when she said you raped her when she was 10, 11, and 12?

Q. When she told the ladies and gentlemen of the jury that you put your lips to her

vagina, was that another lie?

A. Yes, it was.

Q. When she told the ladies and gentlemen of the jury that you put your penis in

her anus and it hurt, are you telling them she was lying?

Q. Are you telling me that [T.W.] lied as well?

A. She did.

Q. Are you telling me that [A.W.] lied as well?

THE COURT: Counsel, move on.

24 Nos. 1-17-2626, 1-18-0612 (cons.)

Q. Everybody is a liar in this case; is that correct?

THE COURT: Counsel. Ask another question.”

¶ 67 Based on the questioning of defendant, we agree that he was improperly asked to opine as

to the veracity of the witnesses. See, e.g., People v. Riley, 63 Ill. App. 3d 176, 185 (1978)

(asking whether the defendant was asserting that the witnesses had told “ ‘a bunch of lies’ ”

was improper); People v. Graves, 61 Ill. App. 3d 732, 747 (1978) (asking whether witnesses

were “ ‘lying’ ” was improper); People v. Hicks, 133 Ill. App. 3d 424, 434 (1971) (asking

whether witnesses had “ ‘lied’ ” was improper). However, we cannot find that this error rises

to the level of plain error, under either prong.

¶ 68 Under the first prong, we cannot find that the evidence was closely balanced. Defendant

contends that the verdict depended on the jury’s determination of the believability of “two

equally plausible versions of events.” However, this understates the evidence presented in each

trial. In each trial, all three sisters—T.W., D.W., and A.W.—testified that defendant had

abused them on multiple occasions spanning several years. Their aunt also testified that the

sisters reported this conduct to her during their visit to her home in Iowa. Additionally, Rosado

performed medical examinations of all three girls and found that two of them had findings that

were concerning for vaginal penetrating trauma. In each case, he also specifically opined, to a

reasonable degree of medical certainty, that the victim in that case had been sexually abused.

Defendant’s testimony also corroborated certain aspects of the sisters’ testimony, such as their

descriptions of their living quarters, his ownership of a van with a third-row seat, and even that

T.W. was excited about her kindergarten photos. Thus, we cannot find that the evidence in

either case was closely balanced and cannot find plain error under the first prong of the plain-

error analysis.

25 Nos. 1-17-2626, 1-18-0612 (cons.)

¶ 69 We also cannot find that the error rises to the level of plain error under the second prong.

“Where the defendant claims second-prong plain error, a reviewing court must decide whether

the defendant has shown that the error was so serious that it affected the fairness of the trial

and challenged the integrity of the judicial process.” Sebby, 2017 IL 119445, ¶ 87. Defendant

claims that, in the case at bar, the State’s questioning eroded the integrity of the proceedings

by usurping the province of the jury. However, defendant cites no support for the proposition

that the type of questioning that occurred here rises to the level of plain error under the second

prong. In the sole case involving plain-error review he cites, the court reviewed the defendant’s

claims under the first, not second, prong. See People v. Munoz, 398 Ill. App. 3d 455, 487

(2010) (noting that “we have already found that the evidence in this case was closely balanced”

and proceeding to review the defendant’s claims for error). Moreover, in the case at bar, we

cannot find that any error would be serious enough to fall under the second prong. Defendant’s

defense relied on the assumption that the girls were not telling the truth—the jury either needed

to believe him or needed to believe them. Thus, while the State’s questions may have been

improper, they merely made explicit what was already the basis of his defense and did not

affect the fairness of his trial. Accordingly, we cannot find that any error made by the State in

its questioning of defendant rises to the level of plain error.

¶ 70 Alternatively, defendant also claims that trial counsel’s failure to properly preserve the

issue for review constituted ineffective assistance of counsel. As we have already set forth the

two-prong test for such a claim, we need not repeat it here. However, we cannot find that

counsel was ineffective in failing to preserve the issue because defendant was not prejudiced

by any such failure. As noted, even if the State’s questioning is improper, the prejudice

resulting therefrom must be “substantial” to warrant reversal. Tolbert, 323 Ill. App. 3d at 807;

26 Nos. 1-17-2626, 1-18-0612 (cons.)

Evans, 373 Ill. App. 3d at 961. Here, we would not find substantial prejudice, for the same

reasons as set forth in our plain-error analysis. Consequently, even if the issue had been

properly preserved, it would have made no difference and, therefore, defendant’s claim of

ineffective assistance of counsel must fail. See Graham, 206 Ill. 2d at 476.

¶ 71 III. Aunt’s Testimony

¶ 72 Next, defendant claims that reversal is warranted where the trial court declined to strike the

aunt’s testimony in T.W.’s case that defendant was a “predator.” On cross-examination in

T.W.’s case, her aunt was asked about whether she observed defendant sexually assault

anyone:

“Q. When you were living with [defendant] and the whole family at those two

addresses at anytime did you see [defendant] sexually assault anyone?

A. No, I didn’t. He is a predator. Did you hear her say he took her to secluded

areas.”

Defense counsel “ask[ed] all that be stricken from the record,” and the court overruled the

objection, stating that the “[a]nswer may stand.”

¶ 73 The parties dispute whether defendant’s claim concerning this comment was properly

preserved. While defense counsel objected to the testimony at trial, defense counsel did not

provide a basis for the objection. In his motion for a new trial, defendant raised as error that

“[t]he court did not grant defendants [sic] request to strike a prejudicial and non-responsive

answer to a question. [The aunt] testified that [defendant] was a ‘predator,’ and took [T.W.] to

secluded areas. [Citation.] This testimony was both prejudicial and non-responsive and should

have been stricken from the record.”

27 Nos. 1-17-2626, 1-18-0612 (cons.)

¶ 74 Later, in the hearing on defendant’s motion for a new trial, defense counsel again addressed

the comment:

“She was nonresponsive—well, she—she had information that was nonresponsive

to the question, including stating that [defendant] was a predator; and, Judge, and took

[T.W.] to secluded areas. *** [W]e believe that, also, was extremely prejudicial and

denied the Defendant a right to a fair trial.

In response, the court found:

“The third point regarding the objection that the defense made when they were cross

examining [the aunt]. This was during cross examination. There was an objection. The

question was non-responsive.

To my recollection, that question—the answer that came from it *** that [she]

offered, wasn’t entirely nonresponsive; and it was within the question and answer,

which is why I did not sustain the defense’s objection to non-responsive.

Moreover, even if that were the case, I don’t believe that what [she] testified to in

that instance, in any way was prejudicial and denied [defendant] a fair trial.”

¶ 75 As noted, to preserve a purported error for consideration by a reviewing court, a defendant

must both (1) object to the error at trial and (2) raise the error in a posttrial motion. Sebby, 2017

IL 119445, ¶ 48. A general objection raises only the question of relevance and results in the

forfeiture of other issues. People v. Villanueva, 382 Ill. App. 3d 301, 304-05 (2008). In the

case at bar, we cannot find that defense counsel’s general objection to the aunt’s testimony

preserved a claim that her testimony was improper lay opinion testimony, as defendant

contends on appeal. Indeed, the record shows that in the case at bar, the trial court was unaware

28 Nos. 1-17-2626, 1-18-0612 (cons.)

that defense counsel was raising any sort of issue about the prejudicial effect of her comment

until the motion for new trial. Accordingly, we review defendant’s claim only for plain error.

¶ 76 In the case at bar, we have no need to consider whether the aunt’s comment was

appropriate, because even if there was error, it would not rise to the level of plain error.

Defendant’s arguments about the first prong are the same arguments that he raised above about

the closeness of the evidence. We have already explained that the evidence was not closely

balanced, and we reach that same result here. As for the second prong, defendant contends that

the comment usurped the province of the jury and undermined the reliability of the jury’s

credibility determination. We do not find this argument persuasive. The victims’ aunt made a

single allegedly improper comment throughout the entirety of her testimony, and this comment

was brief and unrepeated. The jury heard the testimony of eight separate witnesses and viewed

the video of T.W.’s forensic interview. There is no indication that this single comment had any

effect whatsoever on the jury’s ability to consider the evidence fairly. Consequently, even if

there is any error, we cannot find that it rises to the level of plain error under either prong.

¶ 77 Defendant again makes the argument, in the alternative, that trial counsel was ineffective

for failing to properly preserve the issue. However, we cannot find that there was any prejudice

to defendant due to the brief and unrepeated nature of the comment and, therefore, we cannot

find that trial counsel was ineffective in failing to preserve the issue. See Graham, 206 Ill. 2d

at 476.

¶ 78 IV. Improper Comments by State

¶ 79 Finally, defendant claims that, in D.W.’s case, the State made improper comments in its

opening and in its rebuttal in closing, which he contends warrant reversal. Defendant concedes

29 Nos. 1-17-2626, 1-18-0612 (cons.)

that he did not preserve these issues for review, and asks us to review them under both prongs

of the plain-error doctrine.

¶ 80 While the State has wide latitude in both its opening statements and closing arguments and

may comment on the evidence, it is still improper for the State to make comments that have

no other purpose than to arouse the prejudices and passions of the jury. People v. Jones, 2016

IL App (1st) 141008, ¶ 21; People v. Herndon, 2015 IL App (1st) 123375, ¶ 36 (“[i]t is

improper for a prosecutor to make comments irrelevant to the question of guilt or innocence

and that only serve to inflame the jury’s passions”); People v. Schneider, 375 Ill. App. 3d 734,

755 (2007) (“the prosecutor’s exhortations” to the jury to “have some compassion for the

victim” were improper). However, even if the remarks were inappropriate, reversal is required

only if they engendered such substantial prejudice against the defendant that it is impossible

to tell whether the verdict of guilt resulted from them. People v. Wheeler, 226 Ill. 2d 92, 123;

People v. Johnson, 119 Ill. 2d 119, 139-40; Jones, 2016 IL App (1st) 141008, ¶ 23. If the

reviewing court cannot say whether the prosecutor’s improper remarks contributed to the

defendant’s conviction, then it must grant a new trial. Wheeler, 226 Ill. 2d at 123; Jones, 2016

IL App (1st) 141008, ¶ 23.

¶ 81 This court has applied, in different cases, both a de novo standard and an abuse of discretion

standard when reviewing a prosecutor’s closing arguments. People v. McNeal, 2019 IL App

(1st) 180015, ¶ 44; People v. Johnson, 2015 IL App (1st) 123249, ¶ 39 (“[t]his court has noted

confusion regarding the appropriate standard of review regarding alleged errors occurring

during closing arguments”); see also People v. Boston, 2018 IL App (1st) 140369, ¶ 82; People

v. Johnson, 385 Ill. App. 3d 585, 603 (2008) (“Since Wheeler, appellate courts have been

divided regarding the appropriate standard of review.”). An abuse of discretion occurs when

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the trial court’s decision is arbitrary, fanciful, or unreasonable, or where no reasonable person

would take the position adopted by the trial court. See McNeal, 2019 IL App (1st) 180015, ¶

28. As noted, de novo consideration means that the reviewing court performs the same analysis

that a trial judge would perform. See McNeal, 2019 IL App (1st) 180015, ¶ 29. In the case at

bar, we need not resolve this dispute, because the outcome would be the same under either

standard of review.

¶ 82 During its opening, the State referred to defendant as a “child sexual predator” three times.

Specifically, at the beginning of its opening, the prosecutor stated:

“Ladies and gentlemen, meet the child sexual predator in this case, the person who

violated [D.W.] when she was eight years old. The person who raped [D.W.] when she

was nine years old. The person who raped [D.W.] when she was ten years old. The

person who raped [D.W.] when she was 11 years old and 12 years old. A child sexual

predator.

And in just a [few] minutes, ladies and gentlemen of the Jury, you’re going to meet

[D.W.] She’s going to take several steps, brave steps to get up here and testify before

you ladies and gentlemen and tell you about the worst thing that can happen to a little

girl in her childhood, when her innocence is stripped by a child sexual predator.

Someone she knew, someone she trusted, perhaps even loved, it was the father of her

new baby brother. Her mother’s new boyfriend.”

¶ 83 Defendant contends that calling him a “child sexual predator” improperly implied that he

was a convicted sex offender and “stacked the deck” against him. The purpose of an opening

statement is to apprise the jury of what each party expects the evidence to prove. People v.

Kliner, 185 Ill. 2d 81, 127 (1998). An opening statement may include a discussion of the

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expected evidence and reasonable inferences from the evidence, and no statement may be made

in opening that counsel does not intend to prove or cannot prove. Kliner, 185 Ill. 2d at 127.

Reversible error occurs only where the prosecutor’s opening comments are attributable to

deliberate misconduct of the prosecutor and result in substantial prejudice to the defendant.

Kliner, 185 Ill. 2d at 127.

¶ 84 In the case at bar, from the context of the comments, the prosecutor was making a reference

to what the State intended to prove—that defendant was guilty of predatory criminal sexual

assault of a child. This is apparent from the fact that the prosecutor specifically used the

references when discussing what had happened to D.W. and not as a way to describe defendant

generally. While defendant claims that the comment suggested that he had already been

convicted, we see nothing in the prosecutor’s comment that would lead to such an inference.

¶ 85 Moreover, even if the State’s comments during opening were improper, such error would

not have resulted in substantial prejudice to defendant. There were a total of three references,

all located closely together at the beginning of the State’s opening, after which the prosecutor

did not make any problematic comments. The trial court also instructed the jury that opening

statements were not evidence, directly before the State began its opening. See People v.

Peeples, 155 Ill. 2d 422, 482 (1993) (finding that, while it disapproved of the prosecutor’s

reference to the defendant as a “ ‘human predator’ ” during opening, the jury was at least twice

instructed that opening statements were not evidence, curing any error resulting from the

remark). We thus cannot find that this handful of references substantially prejudiced defendant.

¶ 86 Next, defendant challenges two sets of comments contained in the State’s rebuttal at the

end of trial. In its closing argument, the defense had focused on the unlikelihood that defendant

would be able to engage in inappropriate conduct, given the large number of people living in

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the same apartment, and given that the girls shared a bedroom. The defense argued that, “the

fact that there were so many people living in those houses is circumstantial evidence that this

did not happen.”

¶ 87 In its rebuttal, the State addressed the defense’s argument:

“These are secretive crimes. He wouldn’t really be a good rapist. He wouldn’t be

able to get away with raping [D.W.] for as many years as he did if he wasn’t good at it.

And that’s what he did.

And so for the Defense to get up here and say that *** even if it were true, that at

times there were so many people sleeping in the house. And that’s reasonable to think.

The girls said yeah, people came over. We had visitors. Sometimes they stay for weeks

at a time. Sure, it was reasonable to think, but does that mean that people don’t get

raped and crimes don’t happen in places such as dorm rooms, fraternity homes.

What about Hurricane Katrina when all those people were in the Super Dome? The

number of sexual predators walking around there and people reported it. They were on

cots in the Super Dome. What about the USA gymnastics doctor where there is girls

lined up ready to get their exam and there is a girl in there? These crimes happen all

the time. They are secretive crimes. They happen in rooms where there are no

witnesses. He controls the crime. He is the criminal.”

¶ 88 Defendant claims that the State’s references to Hurricane Katrina and the gymnastics team

were intended to inflame the passions and sympathies of the jurors. However, examining the

entirety of the closing arguments, it is apparent that the State was responding to the defense’s

argument that there were too many people around for defendant to be able to engage in the

conduct of which he was accused. “A reference to a well-known case in closing argument is

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not improper if the comments do not suggest a personal similarity between the defendant and

another criminal or inflame the jury.” People v. Weatherspoon, 265 Ill. App. 3d 386, 395

(1994). In the case at bar, the State’s examples did not suggest a personal similarity between

the defendant and another criminal. Instead, they were only an attempt to persuade the jury not

to discredit D.W.’s testimony merely because there were other people around. See

Weatherspoon, 265 Ill. App. 3d at 395 (finding no error where “the prosecutor’s statements

focused on the victim rather than defendant in attempting to persuade the jury not to discredit

her testimony merely because no person responded to her screams”). Moreover, even if they

were improper, they were brief and the State did not dwell on them, so we cannot find that

defendant was prejudiced by them.

¶ 89 Finally, the State argued that “in this case there could only be one truth. This isn’t like a

car accident and was the light yellow or red and were they halfway through. This is did it

happen or didn’t it happen. There is only one person telling the truth here.” The State argued

that the girls had no reason to lie about what happened to them, and noted that the standard

was “beyond a reasonable doubt”:

“And is it reasonable to believe that [D.W.] when she was 8 years old made up this

lie when she went to Iowa? Is it reasonable to believe that she persisted with this lie

months later when she came back and there was an investigation into her allegations?

Is it reasonable to believe that almost 11 years later, now that she is 19 years old,

that she came into court because she has some axe to grind, that there is no evidence

of, and told you ladies and gentlemen of the jury I was raped repeatedly as a child? Is

it reasonable to believe that? Because if it is, she is an evil, sinister monster to be

persistent to say these things, these terrible, horrible crimes against humanity. Is that

34 Nos. 1-17-2626, 1-18-0612 (cons.)

really who she is? *** Ladies and gentlemen, can you take your life experiences and

think that she is some evil, sinister, horrible, despicable person? That’s just not the

evidence in this case, ladies and gentlemen.”

¶ 90 Defendant claims that these comments were an attempt to “shame” the jurors into returning

a guilty verdict by framing the case as a referendum on D.W.’s character. We do not find this

argument persuasive. A prosecutor’s closing argument may reflect upon witness credibility if

it is based on facts in the record or inferences fairly drawn from those facts. People v. Shum,

117 Ill. 2d 317, 348 (1987). This includes comments about a witness’ lack of motive to lie.

Shum, 117 Ill. 2d at 349; see also People v. Jennings, 142 Ill. App. 3d 1014, 1024 (1986)

(finding no error when “it is clear that the prosecutor was merely commenting on the credibility

of the victim when noting that she had no motive to lie or fabricate her testimony”). The

prosecutor’s remarks here were merely commenting on D.W.’s lack of motive to lie, and we

cannot find that they were improper.

¶ 91 As noted, the first step in a plain-error analysis is determining whether there was an error

at trial and whether this error was clear or obvious. Sebby, 2017 IL 119445, ¶ 49. In the case

at bar, we can find no error and, therefore, cannot find that defendant is entitled to reversal

under the plain-error doctrine; even if we found error, it would not rise to the level of plain

error because the evidence was overwhelming that defendant committed the act complained

of.

¶ 92 CONCLUSION

¶ 93 For the reasons set forth above, the trial court’s judgment is affirmed in both cases. First,

the indictments in both cases were not unreasonably broad. Second, any error in cross-

examining defendant did not rise to the level of plain error. Third, the aunt’s reference to

35 Nos. 1-17-2626, 1-18-0612 (cons.)

defendant as a “predator” in T.W.’s case did not constitute reversible error. Fourth, the

prosecutor’s comments during D.W.’s case were not improper.

¶ 94 Affirmed.