People v. Rosales

2023 IL App (2d) 220201-U

• Court: Appellate Court of Illinois
• Decided: June 27, 2023
• Docket: 2-22-0201
• Status: Unpublished

Opinion

2023 IL App (2d) 22-0201-U No. 2-22-0201 Order filed June 27, 2023

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Lake County. ) Plaintiff-Appellee, ) ) v. ) No. 19-CF-2803 ) LUIS F. ROSALES, ) Honorable ) Daniel B. Shanes, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE SCHOSTOK delivered the judgment of the court. Presiding Justice McLaren and Justice Jorgensen concurred in the judgment.

ORDER

¶1 Held: The evidence was sufficient to convict the defendant of criminal sexual assault. The trial court’s evidentiary determinations were not improper and the defendant was not denied the effective assistance of counsel.

¶2 Following a jury trial, the defendant was found guilty of two counts of criminal sexual

assault (720 ILCS 5/11-1.20(a)(1), 1.20(a)(2) (West 2016)). On appeal, the defendant challenges

the sufficiency of the evidence, argues that the admission and exclusion of certain evidence denied

him a fair trial, and alleges that he was denied the effective assistance of counsel. We affirm.

¶3 I. BACKGROUND 2023 IL App (2d) 22-0201-U

¶4 On December 17, 2019, the defendant was charged by information with two counts of

criminal sexual assault. Id. Count one alleged that the defendant committed an act of sexual

penetration against the victim, I.M., by the use of force, in that the defendant knowingly placed

his penis in I.M.’s sex organ. Count two alleged that the defendant committed an act of sexual

penetration against I.M. with knowledge that she could not give knowing consent. The charges

stemmed from actions that occurred at a Halloween party at the defendant’s house on October 28,

2018. Following a jury trial, the defendant was found guilty on both counts. The trial court merged

the conviction on count one into count two and sentenced the defendant to 12 years’ imprisonment

on the latter count.

¶5 Prior to trial, the State filed a motion seeking to admit other-crimes evidence. Specifically,

the State sought to admit testimony from another woman, L.M., that, while intoxicated and unable

to give consent, the defendant had sex with her. The defendant objected, arguing that the State

could not prove that the other offense actually occurred. The trial court ruled that it would allow

the other-crimes evidence only if the defense made consent an issue at trial. The defendant’s

ultimate theory at trial was that the sex with I.M. was consensual, and L.M.’s testimony was

admitted.

¶6 The State also filed a motion in limine seeking to exclude evidence that a vaginal swab

taken from I.M. the morning after the alleged incident indicated a third profile in addition to the

profiles of I.M. and the defendant. The State argued that admission of this evidence would violate

the rape shield statute (725 ILCS 5/115-7(a) (West 2018)). The defendant argued that the evidence

was exculpatory. The trial court granted the State’s motion, finding that, because the defendant’s

theory was that the sex was consensual, the existence of the third profile was irrelevant.

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¶7 At trial, I.M.’s mother testified that on October 28, 2018, she received a phone call in the

middle of the night from I.M., who was crying and said she was raped. I.M.’s mother was at I.M.’s

grandmother’s house. When I.M. arrived at her grandmother’s home, her mother took her to the

hospital, arriving around 5 a.m.

¶8 I.M. testified that, on the evening of October 28, 2018, she went to a party at the defendant’s

home with her friend, Stephane Sarmiento. I.M. did not talk to the defendant for more than 10

minutes. After having several drinks, I.M. felt like her head was spinning so she found a bed, laid

down, and fell asleep. She woke up to the defendant having vaginal sex with her. The defendant

was standing and I.M.’s legs were hanging off the bed. She began screaming and pushed the

defendant away. The defendant buckled his pants and left the room. I.M. then put her clothes

back on. I.M. testified that she was not drinking before she arrived at the party, but she had about

five drinks while at the party. She did not remember consuming anything other than alcohol. After

she got dressed, she went to find Sarmiento, but instead found Giovanni Ochoa. Ochoa and his

brother gave I.M. a ride to her grandmother’s house. She did not tell Ochoa what happened to her.

¶9 Ochoa testified for the State that he arrived at the party at about 2 a.m. and there were only

about 5 to 10 people there. He ended up falling asleep on a couch. He woke up when he heard

I.M. screaming on the phone, telling her friend she was a “B” for leaving her behind. Because she

was so upset, Ochoa asked I.M. if she needed a ride. He had been drinking so he called his brother

and asked him to pick them up. He and his brother drove I.M. to her grandmother’s house. They

left the defendant’s house at about 3:30 a.m. During the car ride, he did not think I.M. was talking

to her mother because she was cursing. Ochoa did not hear I.M. say anything about being raped

during the car ride.

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¶ 10 Sarmiento testified that she and I.M. were driven to the party by Ochoa’s brother.

Sarmiento had met the defendant before. She testified that while she, I.M., and others were

drinking in the bar area of the home, the defendant was sitting in the corner. When Sarmiento left

the party, the only people that remained were Ochoa and his brother, the defendant, I.M., and an

older man whose name she did not know. Sarmiento received a text message from Ochoa saying

that I.M. had been acting weird, and that she had run away from his car and consumed cocaine.

Sarmiento stated that she did not hear from I.M. again until about 8 a.m. the next day when I.M.

was in the hospital.

¶ 11 Jacqueline Bingen testified that she was a sexual assault nurse examiner and was called to

the hospital to examine I.M. She was not able to examine I.M. until 7:30 a.m. because I.M. was

intoxicated. She had to wait until I.M. was sober to give consent to the exam. After 5 a.m., the

emergency room at the hospital did a blood draw which showed that I.M. had a blood alcohol

content of 0.11. A urine drug screen was also conducted and I.M. tested positive for cannabis and

cocaine. Bingen began examining I.M. at about 7:30 a.m. She examined I.M.’s body and clothes

and conducted a medical forensic kit, collecting vaginal swabs, blood, and urine samples. I.M.

told Bingen that she woke up at the party with someone’s penis inside her and she felt pain and

throbbing in her vaginal area. I.M. also told her that the person had ejaculated. Bingen did not

detect any bruising, bleeding, tearing, trauma, or redness on I.M.’s vaginal area. Bingen also

testified that I.M. told her she had no loss of memory or consciousness that night.

¶ 12 Crime laboratory results showed that sperm cells were found in I.M.’s vaginal swab.

Forensic testing showed that the sperm cells matched the defendant’s DNA. On December 12,

2018, I.M. identified the defendant in a photo array as the person who sexually assaulted her.

Detective Matt Thornton of the Zion police department testified that the photo of the defendant

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that was used in the array was from a previous arrest in another jurisdiction. After some further

questions, a sidebar was held, wherein defense counsel objected to the photo array for multiple

reasons, including arguing that it was improper for the officer to indicate that the photo was from

a prior arrest. The trial court overruled the objection, finding that the issue was subject to cross-

examination. On cross-examination, defense counsel attempted to clarify that the photo was the

result of police involvement in domestic issues between the defendant and his ex-wife.

¶ 13 L.M. testified that, in May 2018, when she was about 23 years old, she lived with her father

in the basement of the defendant’s home. At that time, L.M. had been dating the defendant’s son,

Carlos, for about two years. At the beginning of that month, she had an argument with Carlos

because she caught him cheating on her. Either later that day, or the next day, she was at home

alone with the defendant. They started drinking beer together at about noon and talking about

L.M.’s relationship with Carlos. At some point Carlos came home and the three drank together.

At about 9 p.m., Carlos went to bed and the defendant went to the liquor store to buy more alcohol.

When the defendant returned, L.M. began feeling dizzy and threw up. The defendant helped L.M.

to her room in the basement. L.M. remembered laying down and passing out. When she went to

bed she was wearing a t-shirt, bra, sweater, jeans, socks, and shoes.

¶ 14 The next morning, L.M. woke up when the defendant knocked on her door. She was not

wearing her jeans or underwear when she woke up and her vagina felt “weird.” The defendant

came into her room and asked if she remembered last night. She said she did not know what he

was talking about. The defendant then told L.M. that she asked him to make love to her last night.

She told him she never said that, and he asked if she was going to tell anyone about it. L.M. told

the defendant to leave. L.M. did not report the incident until June 2019. She did not remember if

the defendant placed his penis in her vagina.

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¶ 15 The defendant moved for a directed finding, arguing that the State had not proved that the

event between I.M. and the defendant was not consensual. The State indicated that, after reviewing

the testimony and some case law, it would concede and dismiss count one. The trial court noted

that the State could certainly bring a motion if it wanted, but the issue was the defendant’s motion

for a directed finding. The State then argued that a reasonable fact finder could conclude that there

was sufficient evidence to prove both counts. The trial court denied the defendant’s motion.

¶ 16 Thereafter, Vanessa Blanco and Victor Jasso testified for the defense. They both testified

that they were at the Halloween party in question. There were about 20 to 30 people present and

there were no arguments or other disturbances at the party.

¶ 17 Following deliberations, the jury found the defendant guilty of both counts. The trial court

ordered a presentence investigation report (PSI). The PSI included a statement that the defendant

complained that he was upset with his attorneys because they “steer[ed] him toward a jury trial

when he specifically wanted a bench trial.” The defendant filed a posttrial motion for judgment

notwithstanding the verdict and a motion for a new trial challenging the sufficiency of the evidence

and raising other alleged trial errors.

¶ 18 At a hearing on posttrial motions and sentencing, the trial court first conducted a

preliminary inquiry, pursuant to People v. Krankel, 102 Ill. 2d 181 (1984), into the defendant’s

claim about wanting a bench trial and questioned the defendant and his attorneys about the

statement. The defendant stated that he told his attorneys all along that he wanted a bench trial.

Defense counsel stated that he never talked to the defendant about a bench or a jury trial. He just

told the defendant he would defend him in the best possible way. After filing numerous motions,

and taking the court’s temperature, defense counsel determined it would be best to have a jury

trial. Defense counsel also stated that, after reading the PSI, he “was somewhat taken aback, ***

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somewhat upset, somewhat questionable that [the defendant] said that he wanted a bench trial.”

Co-counsel stated that shortly before trial he had discussions with the defendant that it would be a

jury trial, and that if the defendant had indicated that he wanted a bench trial, co-counsel would

have submitted a waiver of jury trial and allowed a bench trial.

¶ 19 The trial court found that the defendant did not receive ineffective assistance of counsel.

The trial court stated that during many pretrial hearings when the defendant was present there were

discussions about whether it would be a bench or jury trial. The trial court concluded that there

was nothing to suggest that the defendant was confused about whether he was having a bench or

jury trial, or his rights in that regard. The trial court made statements questioning whether Krankel

was even applicable since the defendant did not allege that defense counsel forced him to waive a

certain right. Finally, the trial court found that the evidence was overwhelming and, even if trial

counsel was ineffective, the defendant suffered no prejudice by having a jury trial rather than a

bench trial. The trial court denied the defendant’s posttrial motion. Following a sentencing

hearing, the trial court merged count one into count two, and sentenced the defendant to 12 years’

imprisonment on count two. The trial court denied the defendant’s subsequent motion to

reconsider sentence and the defendant then filed a timely notice of appeal.

¶ 20 II. ANALYSIS

¶ 21 A. Failure to Prove Force

¶ 22 The defendant’s first contention on appeal is that the trial court erred in denying his motion

for a directed verdict and motion for judgment notwithstanding the verdict on count one because

the State failed to prove the element of force. The State argues that we cannot review this

contention because the trial court did not enter a sentence on count one. We agree with the State.

We cannot review a conviction on which no sentence was imposed, as there is no final judgment.

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People v. Caballero, 102 Ill. 2d 23, 51 (1984) (“The final judgment in a criminal case is the

sentence, and, in the absence of a sentence, an appeal cannot be entertained.”). In this case, count

one was merged into count two and the defendant was only sentenced on count two. Accordingly,

we decline to address the defendant’s contention that the State failed to prove the elements of count

one.

¶ 23 B. Sufficiency of the Evidence

¶ 24 The defendant’s second contention on appeal is that he was not proved guilty beyond a

reasonable doubt. As explained above, we do not consider whether the evidence was sufficient to

prove count one, and we address only whether the evidence was sufficient to convict the defendant

on count two. Count two charged the defendant with criminal sexual assault, alleging that he

committed an act of sexual penetration against I.M. with knowledge that she could not give

knowing consent.

¶ 25 In evaluating the sufficiency of the evidence, it is not the province of this court to retry the

defendant. People v. Collins, 106 Ill. 2d 237, 261 (1985). The relevant 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 v. Virginia, 443 U.S. 307, 319 (1979)). The weight to be given to

the witnesses’ testimony, the determination of their credibility, and the reasonable inferences to be

drawn from the evidence are all matters within the jurisdiction of the trier of fact. People v. Smith,

185 Ill. 2d 532, 542 (1999); Collins, 106 Ill. 2d at 261-62. Likewise, the resolution of any conflicts

or inconsistencies in the evidence is also within the province of the fact finder. Collins, 106 Ill.

2d at 261-62. We will set aside a criminal conviction only “where the evidence is so unreasonable,

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improbable, or unsatisfactory as to justify a reasonable doubt of defendant’s guilt.” Smith, 185 Ill.

2d at 542.

¶ 26 To prove defendant guilty of criminal sexual assault, the State was required to prove

beyond a reasonable doubt that defendant (1) committed an act of sexual penetration and (2) knew

that I.M. was unable to give knowing consent to an act of sexual penetration. See 720 ILCS 5/11-

1.20(a)(2) (West 2016). In this case, the defendant conceded that he committed an act of sexual

penetration and asserted an affirmative defense of consent at trial. Accordingly, the only issue is

whether the evidence was sufficient to prove that the defendant knew that I.M. was unable to give

¶ 27 Viewing the evidence in the light most favorable to the prosecution, we conclude that there

was sufficient evidence for the jury to conclude that the defendant knew that I.M. was unable to

give knowing consent. I.M. testified that she went to a party at the defendant’s house, had too

much to drink, and passed out on a bed in the defendant’s home. I.M. testified that the next thing

she remembered was waking up to the defendant having vaginal sex with her. She screamed and

pushed him away. I.M. had a BAC of 0.11 at the hospital the next morning and tested positive for

cannabis and cocaine, supporting a reasonable inference that her faculties were impaired. There

was also other-crimes evidence showing that the episode with I.M. was not the first time the

defendant had sex with someone who was too intoxicated to give knowing consent. Based on the

evidence presented, we conclude that a rational trier of fact could have determined beyond a

reasonable doubt that the defendant knew I.M. was unable to give knowing consent to an act of

sexual penetration.

¶ 28 The defendant attempts to cast doubt on the sufficiency of the evidence by pointing to

several alleged deficiencies in I.M.’s testimony. The defendant argues that I.M. was too

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intoxicated to have a reliable memory of what occurred at the party. The defendant also argues

that, if I.M. pushed him away after waking up, there was no explanation for why there was no

semen found on I.M. or on her clothes. The defendant further argues that, although I.M. testified

that she was screaming and upset after the encounter, Ochoa testified that he only heard I.M.

screaming at a friend for leaving her at the party and that I.M. never said anything to him about

being assaulted. Finally, the defendant notes that I.M. told Bingen that she had no loss of memory

or consciousness, calling into question whether I.M. was really unable to give knowing consent.

¶ 29 These alleged deficiencies do not make the evidence so unsatisfactory as to raise a

reasonable doubt of the defendant’s guilt. The jury was fully aware of all the testimony presented

and determined that the defendant knew I.M. was unable to give knowing consent. The jury heard

evidence that I.M. drank to the point of passing out, that her BAC at 5 a.m. the next day was 0.11,

and that she tested positive for cannabis and cocaine. It was within the province of the jury to

conclude that her testimony was credible. Collins, 106 Ill. 2d at 262. As to the remaining

contentions, the jury could have concluded that there was no semen on I.M. or her clothing because

she pushed the defendant away after he ejaculated, that I.M. was more credible than Ochoa, and

that I.M.’s statement to Bingen about having no loss of memory or consciousness referred to the

time after she woke up being penetrated by the defendant.

¶ 30 The defendant also notes that Ochoa and two other people were at the party and the only

one who observed I.M. screaming or upset was Ochoa. However, the other two people could have

been gone before the offense against I.M. took place. The defendant also argues that I.M.’s

testimony was inconsistent with her mother’s testimony because, while I.M. testified that she told

her mom immediately that she was raped, I.M.’s mother testified that I.M. only cried out after she

chastised I.M. for being out past curfew. This is an inaccurate representation of I.M.’s mother’s

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testimony. I.M.’s mother testified that, when I.M. called her, the only question she actually asked

I.M. was “what’s going on” and “where are you ***?.” The defendant also notes that Ochoa

testified that I.M. did not say anything about being raped while he and his brother were driving her

home. This was not inconsistent, as I.M. testified that she did not tell Ochoa what happened.

¶ 31 The defendant cites three cases in arguing that there was a reasonable doubt of his guilt:

People v. Herman, 407 Ill. App. 3d 688 (2011), People v. Yeargen, 229 Ill. App. 3d 219 (1992),

and People v. Schott, 145 Ill. 2d 188 (1991). In those cases, convictions were reversed because

the victim’s testimony was so improbable or fraught with inconsistencies that it left a reasonable

doubt of the defendant’s guilt. See Herman, 407 Ill. App. 3d at 705 (victim testimony fraught with

inconsistencies and contradictions, especially with respect to the timeline of events related to the

offense); Yeargen, 229 Ill. App. 3d at 233 (victim testimony had so many contradictions and was

“contrary to the laws of human nature and experience”); and Schott, 145 Ill. 2d at 206-07 (victim

testimony was so fraught with inconsistencies and contradictions that it raised a reasonable doubt

of the defendant’s guilt). These cases are clearly distinguishable from the present case as the

credibility problems in those cases are not present here. We simply cannot say that I.M.’s

testimony was clearly implausible or so fraught with inconsistencies and contradictions that no

reasonable jury would find her credible.

¶ 32 C. Prior Bad Acts

¶ 33 The defendant’s third contention on appeal is that the trial court erred in admitting evidence

of the defendant’s prior bad acts. The defendant takes issue with the admission of evidence related

to the alleged sexual assault of L.M. and the admission that the defendant had a prior arrest. The

defendant argues that the first issue should be reviewed for an abuse of discretion but concedes

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that the second issue should be reviewed under the plain error doctrine because the issue was not

preserved for review in a posttrial motion.

¶ 34 1. Other-crimes evidence

¶ 35 As to the first issue, the defendant argues that the alleged sexual assault of L.M. should

have been excluded because there was insufficient proof that it actually happened, it was dissimilar

to the charged conduct, and it was overly prejudicial.

¶ 36 The term “other-crimes evidence” refers to misconduct or criminal acts that occurred

before or after the alleged charged conduct, including acts of misconduct for which the defendant

was not charged or convicted. People v. Sims, 2019 IL App (3d) 170417, ¶ 28. Evidence of other

crimes may be admissible to show a defendant’s intent, modus operandi, identity, motive, or

absence of mistake, but it is generally inadmissible to show a defendant’s criminal propensity.

People v. Donoho, 204 Ill. 2d 159, 170 (2003); see also Ill. R. Evid. 404(b) (eff. Jan. 1, 2011). A

“[d]efendant is entitled to have his guilt or innocence evaluated solely on the basis of the charged

crime” and evidence of propensity to commit the charged offense raises the risk that a jury will

convict a defendant because he is a “bad person deserving punishment.” Id.

¶ 37 However, section 115-7.3 of the Code, which applies to certain enumerated sex offenses

(725 ILCS 5/115-7.3(a)(1) (West 2018)), including criminal sexual assault, allows evidence of the

defendant’s commission of another of the listed offenses to be admissible for “any matter to which

it is relevant” (id. § 115-7.3(b)). “Any matter” specifically includes a defendant’s propensity to

commit the sex offenses enumerated by the statute. Donoho, 204 Ill. 2d at 176. In enacting

section 115-7.3, the legislature “intended to single out sex offenders *** in recognition of the

propensity of sex offenders to repeat their crimes.” People v. Childress, 338 Ill. App. 3d 540, 549

(2003).

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¶ 38 Even if other-crimes evidence is offered for a permissible purpose, it may nevertheless be

precluded if its prejudicial effect substantially outweighs its probative value. People v. Pikes, 2013

IL 115171, ¶ 11; see also 725 ILCS 5/115-7.3(c) (West 2018). In weighing the probative value

against undue prejudice, the statute provides that a court may consider the proximity in time to the

charged offense, the degree of factual similarity to the predicate offense, or other relevant facts or

circumstances. 725 ILCS 5/115-7.3(c) (West 2018). Other-crimes evidence must bear at least

some threshold similarity to the charged offense, and as the factual similarities to the charged

conduct increase, so too does the evidence’s probative value. Donoho, 204 Ill. 2d at 184. “Where

such evidence is not being offered under the modus operandi exception, ‘mere general areas of

similarity will suffice’ to support admissibility.” Id. at 184 (quoting People v. Illgen, 145 Ill. 2d

353, 372-73 (1991)). Whether to admit other-crimes evidence is a decision that rests in the sound

discretion of the trial court. People v. Bochenek, 2020 IL App (2d) 170545, ¶ 56. An abuse of

discretion occurs where the trial court’s determination is arbitrary, fanciful, or unreasonable.

Donoho, 204 Ill. 2d at 182.

¶ 39 We hold that the trial court did not abuse its discretion in admitting L.M.’s testimony. The

statutory requirements of section 115-7.3 were satisfied. The defendant committed the act against

L.M. about five months prior to the charged offense, thus the two offenses were relatively close in

time. The two offenses were also similar. Both victims were young, became intoxicated at the

defendant’s house after drinking too much alcohol, and fell asleep in the defendant’s residence

with their clothes on. When both of the victims awoke, their clothes were partially or fully

removed. The uncharged conduct against L.M. was relevant to show the defendant’s intent and

propensity to take advantage of young and intoxicated women. The trial court noted that the

defendant was raising the defense of consent and found the evidence of the uncharged conduct

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against L.M. to be relevant to the defendant’s intent and propensity to commit sexual assault. The

record shows that the trial court weighed the probative value against the prejudicial effect.

¶ 40 The defendant argues that the testimony against L.M. should have been excluded because

there was insufficient evidence to prove that the incident with L.M. actually occurred. The

defendant points out that L.M. did not wake up with the defendant in her bed or his clothes in her

room and she did not remember having sex with the defendant. Nonetheless, there was sufficient

evidence for a jury to conclude that the sexual assault occurred. L.M. testified that she drank to

the point of passing out, that the defendant helped her to her room, and when she woke up the next

morning her pants and underwear were off and her vagina felt “weird.” The defendant knocked

on her door and informed her that they had “made love.” L.M. denied that she had ever asked the

defendant to have sex with her.

¶ 41 In arguing that the other-crimes evidence was not sufficiently similar to the charged offense

for its probative value to outweigh the prejudice caused by its admission, the defendant relies on

People v. LaMonica, 2021 IL App (2d) 200136. In that case, the defendant was charged with

aggravated criminal sexual assault by committing an act of sexual penetration on the victim by use

of force. Id. ¶ 4. Following a jury trial, the defendant was found guilty. Id. ¶ 1. On appeal, the

defendant argued that the evidence was insufficient to prove force or lack of consent (id. ¶ 34) and

that the trial court erred in admitting the other-crimes evidence (Id. ¶ 48). This court agreed.

¶ 42 This court first found that the evidence was not sufficient to establish that the defendant

used or threatened force or to disprove the defense of consent. Id. ¶ 46. This court noted that the

victim testified that the defendant had not threatened her, held her down, or grabbed her so hard

she could not release his grip. Id. We thus held that her perception of a threat was not reasonable.

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Id. Further, we noted that the “[the victim’s] testimony was inconsistent about whether she viewed

defendant as a physical threat; thus, it confused the jury.” Id. ¶ 52.

¶ 43 This court also concluded that the trial court had erred in admitting other-crimes evidence.

We explained that, because three witnesses were called to establish the alleged other-crimes

evidence, the allegations of the other crime were unproven, and the similarities between the

charged offense and other-crimes evidence were low, “the risk of undue prejudice to defendant

clearly outweighed the probative value, particularly in light of the extensiveness of the evidence

presented on the incident with [the other alleged victim].” Id. ¶ 54. We commented that the other-

crimes evidence took up most of the trial. Id. In discussing the lack of similarity, this court noted

the victim’s testimony that the defendant penetrated her in the evening, after their date, while she

was drunk and that the defendant quickly left her apartment. Id. ¶ 53. The other-crimes evidence

included testimony from another woman that, after a date with the defendant, they went back to

her apartment. She went into her bedroom, got undressed, and went to sleep. The next morning,

while she was sober, the defendant forcefully penetrated her while on top of her and stayed for

about an hour after the alleged assault and wanted to talk to her. Id. This court concluded that the

two incidents bore little resemblance in any significant way. Id. ¶ 54.

¶ 44 The defendant’s reliance on LaMonica is unpersuasive. Unlike LaMonica, the victim’s

testimony was not inconsistent or confusing and the other-crimes evidence did not take up most of

the trial. Further, as explained above, the two incidents at issue in this trial bore a striking

resemblance. Both involved the defendant forcing himself on young, intoxicated women in his

home while they were essentially passed out. The defendant argues that the facts were dissimilar

because L.M. was five years older than I.M., L.M. knew the defendant and had been drinking with

him all day, and L.M. did not have any memory of sexual intercourse with the defendant.

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However, if the State is not offering other-crimes evidence to show modus operandi, general areas

of similarity are sufficient to support admissibility. Donoho, 204 Ill. 2d at 184. In reviewing the

trial court’s decision for an abuse of discretion, we hold that the similarities are sufficient to

support admissibility of the other crimes evidence.

¶ 45 2. Prior Arrest

¶ 46 The defendant’s next contention is that the trial court erred in admitting Officer Thornton’s

testimony that the defendant’s photo used in the photo array was from a previous arrest in a

different jurisdiction. The defendant acknowledges that this issue was not raised in his posttrial

motion and requests that we review it for plain error. The plain error doctrine allows “a reviewing

court to reach a forfeited error affecting substantial rights” in certain circumstances. People v.

Herron, 215 Ill. 2d 167, 178 (2005). In order to successfully qualify for application of the plain

error doctrine, a defendant must first show that the trial court committed a clear or obvious error.

People v. Hillier, 237 Ill. 2d 539, 545 (2010); People v. Piatkowski, 225 Ill. 2d 551, 565 (2007).

After meeting this threshold, the defendant must then show either that the evidence was closely

balanced, or that the error was so egregious as to deny the defendant a fair trial. Hillier, 237 Ill.

2d at 545. If the defendant cannot meet this burden, then the argument remains forfeited. Id.

¶ 47 In this case, it was error to admit testimony of the defendant’s previous arrest. See People

v. Warmack, 83 Ill. 2d 112, 128 (1980) (holding that the error in revealing a prior arrest is obvious).

However, the defendant can still not establish plain error as the evidence was not closely balanced.

The defendant conceded that he had intercourse with I.M. but argued that it was consensual. I.M.

testified that she passed out at a party and was fully clothed. When she woke up some point later,

her pants were pulled down and the defendant was penetrating her vagina. She testified that it was

not consensual and as soon as she became conscious and realized what was happening, she pushed

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the defendant away. As explained above, I.M.’s testimony was not so fraught with inconsistencies

or contradictions that it raised a reasonable doubt of the defendant’s guilt.

¶ 48 Further, the admission of a prior arrest was not so prejudicial as to deny the defendant a

fair trial. Defense counsel had the opportunity to cross-examine Thornton about the alleged prior

arrest. Specifically, on cross-examination, Thornton testified that he received the photo for the

array from the Waukegan police department. The following colloquy ensued:

“Q. [Defense attorney]: You received a photograph from Waukegan?

A. Correct.

Q. And when you received it from Waukegan, you determined that there was a

complaint from [the defendant’s] ex-wife concerning arresting [the defendant] when they

made that phone call; would that be correct?

A. I remember a complaint, possibly back and forth complaints. I don’t remember

that he was arrested.

****

Q. Well, when you first talked to him and sat down with him, you asked him do

you know what this is about; correct?

Q. And he said to you it must come from his ex-wife; would that be correct?

A. Yes, he said that.”

The cross-examination thus indicated that the prior arrest was in some way related to the

defendant’s ex-wife. Further, the reference to the prior arrest did not indicate to the jury that the

defendant had a conviction for a prior crime. There is no reasonable probability that the outcome

of the trial would have been different absent the testimony about the prior arrest. Accordingly, we

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decline to find plain error under the circumstances in this case and the defendant’s argument thus

remains forfeited.

¶ 49 D. Right to Present a Defense

¶ 50 The defendant’s fourth contention on appeal is that the trial court abused its discretion

when it refused to allow evidence that there was a third DNA profile found on I.M.’s vaginal swab

and testimony that I.M. had a sexual encounter with a person other than the defendant on the night

in question. The defendant notes that I.M.’s vaginal swabs revealed the DNA profile of I.M., the

DNA profile of the defendant, and a possible third DNA profile of an unknown person. The

defendant argues that the DNA evidence was relevant to the issue of whether the encounter

between the defendant and I.M. was consensual because it could have raised the very real

possibility that a person other than the defendant could have been the perpetrator of the rape. The

trial court found that the evidence was not relevant under the rape shield statute.

¶ 51 The rape shield statute provides:

“In prosecutions for *** criminal sexual assault *** the prior sexual activity or the

reputation of the alleged victim *** is inadmissible except (1) as evidence concerning the

past sexual conduct of the alleged victim *** with the accused when this evidence is

offered by the accused upon the issue of whether the alleged victim *** consented to the

sexual conduct with respect to which the offense is alleged; or (2) when constitutionally

required to be admitted.” 725 ILCS 5/115-7 (West 2014).

The defendant did not seek to admit evidence that he had a prior sexual relationship with I.M., so

the question is whether the admission of evidence that I.M. engaged in sexual activity with

someone other than the defendant on the night of the sexual assault was constitutionally required.

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¶ 52 “The ‘constitutionally required’ exception to the rape-shield statute ‘should be construed

narrowly, but also fairly.’ ” People v. Summers, 353 Ill. App. 3d 367, 374 (2004) (quoting People

v. Santos, 211 Ill. 395, 416-17 (2004) (McMorrow, C.J., dissenting)). In order to avoid harassing

or humiliating the complaining witness, “[m]inimally relevant evidence of prior sexual activity

should not be admitted.” Id. Indeed, evidence of the alleged victim’s history “is not

‘constitutionally required to be admitted’ unless it would make a meaningful contribution to the

fact-finding enterprise.” People v. Maxwell, 2011 IL App (4th) 100434, ¶ 76 (quoting 725 ILCS

5/115–7(a) (West 2010)). The rape shield statute must not be applied to obscure relevant evidence

that bears directly on guilt or innocence. People v. Johnson, 2014 IL App (2d) 121004, ¶ 42. We

will not disturb the trial court’s ruling to bar evidence under the rape-shield statute unless the ruling

was an abuse of discretion. Id. A trial court abuses its discretion when it acts arbitrarily or when

no reasonable person would take the view adopted by the trial court. Id.

¶ 53 The trial court did not abuse its discretion here because the defendant failed to establish

that the existence of a third DNA profile was constitutionally required. When arguing the motion

in limine, defense counsel stated that he believed the third DNA profile belonged to Ochoa and

that, while he had not received a formal statement from Ochoa, he believed Ochoa would testify

that he (Ochoa) had a sexual relationship with I.M. at the same time as the defendant. When the

trial court questioned what that meant, defense counsel stated that he was not sure of the

chronological order of when I.M. had sex with Ochoa, whether the defendant and Ochoa took

turns, or if Ochoa was in the room at the same time as when the defendant was penetrating I.M.

The trial court concluded that whether I.M. had consensual sex with someone else was not relevant

to the defendant’s case. Further, the trial court stated that it would need a more definitive proffer

of what Ochoa’s testimony would be and what the defense theory of the case would be before it

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could find the complained of evidence constitutionally required. The trial court stated that defense

counsel could “further investigate that by talking to Ochoa, by talking to his client, by doing all

sorts of different things to find out exactly what the defense theory of what the facts of this are.”

The trial court thus impliedly agreed to revisit the issue had the defendant presented more evidence,

but the defendant never did so. We cannot say that no reasonable person would agree with the

position adopted by the trial court. As the defendant had not procured a formal statement from

Ochoa, the argument that I.M. had consensual sex with a third person and thus with the defendant

was pure speculation and not a meaningful contribution to the factfinding enterprise.

¶ 54 On appeal, the defendant argues that the evidence of the third DNA profile was meaningful

because it could have established that I.M.’s sexual encounter with the defendant was consensual

and that I.M. misidentified the actual perpetrator that was penetrating her when she woke up. The

defendant never made this argument below and it is therefore forfeited. People v. Enoch, 122 Ill.

2d 176, 186 (1988). The theory argued below was only that the third DNA profile would have

been relevant to showing that I.M. was having consensual sex with multiple partners. The

defendant never advanced the argument that it wanted to use the evidence to establish a

misidentification of the rapist.

¶ 55 E. Ineffective Assistance of Counsel

¶ 56 The defendant’s final contention on appeal is that he received ineffective assistance of

counsel. The defendant argues that trial counsel was ineffective in proceeding to a jury trial despite

the defendant’s express desire for a bench trial. The defendant also argues that counsel was

ineffective for failing to preserve, in a posttrial motion, the trial court’s error in allowing evidence

of an unrelated previous arrest to explain how a photo was acquired for the photo array used in

this case.

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¶ 57 Under Strickland v. Washington, 466 U.S. 669 (1984), a defendant arguing ineffective

assistance of counsel must show not only that his or her counsel’s performance was deficient but

also that the defendant suffered prejudice as a result. People v. Houston, 226 Ill. 2d 135, 143

(2007). Specifically, under the two-prong Strickland test, “a defendant must show that (1) his

counsel’s performance *** fell below an objective standard of reasonableness, and (2) *** but for

counsel’s deficient performance, there is a reasonable probability that the result of the proceeding

would have been different.” Id. at 144. Because a defendant must satisfy both prongs of the

Strickland test, the failure to establish either is fatal to the claim. Strickland, 466 U.S. at 687.

¶ 58 1. Bench Trial

¶ 59 The defendant first argues that trial counsel was ineffective in proceeding to a jury trial

despite his express desire for a bench trial. The trial court addressed this argument in response to

a statement in the defendant’s presentence investigation report, where the author of the report

stated that the defendant “complained about his attorney steering him toward a jury trial when he

specifically wanted a bench trial.” The trial court interpreted this as a posttrial pro se claim of

ineffective assistance of counsel and appropriately conducted a preliminary Krankel inquiry.

¶ 60 Pro se posttrial claims alleging ineffective assistance of counsel are governed by the

common-law procedure that has developed from our supreme court’s decision in Krankel. People

v. Jackson, 2020 IL 124112, ¶ 95. Krankel is triggered whenever a defendant raises a pro se

posttrial claim of ineffective assistance of counsel. People v. Jolly, 2014 IL 117142, ¶ 29. After

a defendant raises such a claim, the trial court must employ a two-step procedure. Jackson, 2020

IL 124112, ¶ 97. First, the trial court conducts a preliminary Krankel inquiry, which is an

examination of the factual basis underlying the defendant’s claim. Id. During this preliminary

evaluation, the trial court is permitted to question defense counsel about the facts and

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circumstances surrounding the defendant’s allegations, engage in a discussion with the defendant,

or rely on its own knowledge of counsel’s performance at trial and the insufficiency of the

defendant’s allegations. People v. Ayres, 2017 IL 120071, ¶ 12. If, during this preliminary inquiry,

the trial court determines that the defendant’s claim lacks merit or pertains only to matters of trial

strategy, the trial court may deny the pro se motion. Id. ¶ 11. A claim lacks merit if it is conclusory,

misleading, or legally immaterial, or does not bring to the trial court’s attention a colorable claim

of ineffective assistance of counsel. People v. Robinson, 2015 IL App (1st) 130837, ¶ 71.

¶ 61 If, however, the trial court finds that the allegations demonstrate “possible neglect of the

case,” new counsel (i.e., Krankel counsel) must be appointed to represent the defendant at an

adversarial and evidentiary hearing on the defendant’s claims. Ayres, 2017 IL 120071, ¶ 11. The

appointment of new counsel avoids any conflict of interest that might arise if trial counsel was

forced to justify his or her actions contrary to the defendant’s position. Jackson, 2020 IL 124112,

¶ 97.

¶ 62 The applicable standard of review depends on whether the trial court addressed the merits

of the defendant’s pro se posttrial claim of ineffective assistance of counsel. Id. ¶ 98. The

operative concern for the reviewing court is whether the trial court conducted an adequate inquiry

into the defendant’s pro se allegations of ineffective assistance. Id. Accordingly, if the reviewing

court is asked to determine whether the trial court properly conducted a Krankel inquiry, the

standard of review is de novo. Id. If, on the other hand, after performing the Krankel inquiry the

trial court reaches a determination as to the merits of the defendant’s pro se ineffective assistance

of counsel claim, the reviewing court may reverse only if the trial court’s decision was manifestly

erroneous, i.e., the error was clearly evident, plain, and indisputable. Id. In the present case, the

trial court conducted a preliminary Krankel hearing and denied the defendant’s pro se claim of

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ineffective assistance of counsel. Accordingly, we review the trial court’s determination for

manifest error. Id.

¶ 63 Under the United States Constitution (U.S. Const., amends. VI, XIV) and the Illinois

Constitution (Ill. Const. 1970, art. I, §§ 8, 13) a defendant is guaranteed the right to a jury trial.

Under the Illinois Constitution, that right includes the right of a defendant to waive a jury trial.

People v. Barkes, 399 Ill. App. 3d 980, 988 (2010); see also People v. Brown, 2013 IL App (2d)

110327, ¶ 18 (a criminal defendant has a state constitutional right to a bench trial). The right to

waive a jury trial and choose a bench trial is within the sole prerogative of the defendant and not

his counsel. Id. The failure to accept a defendant’s waiver of a trial by jury is generally considered

reversible error. Id. If a defendant raises a claim of ineffective assistance of counsel on the basis

that trial counsel impeded his right to waive a jury trial, prejudice under Strickland “ ‘is presumed

if there is a reasonable probability that the defendant would have waived a jury trial in the absence

of the alleged error.’ ” Id. (quoting People v. McCarter, 385 Ill. App. 3d 919, 943 (2008)).

Whether or not the outcome of a bench trial would have been the same as the jury trial has no

relevance to the issue of prejudice under Strickland. Id.

¶ 64 In the present case, the trial court’s determination was not manifestly erroneous. Although

defense counsel did not remember talking about a bench or jury trial with the defendant, the record

indicates there were multiple court appearances with the defendant present where the trial court

asked whether it would be a bench or jury trial and instructed defense counsel to discuss the issue

with the defendant. At the preliminary Krankel inquiry, both defense counsel and co-counsel

indicated that the defendant never told them prior to trial that he wanted a bench trial. Defense

counsel stated that he was taken aback and thought it was questionable when he saw the

defendant’s statement that he wanted a bench trial in the PSI. Co-counsel stated that he discussed

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with the defendant that it would be a jury trial and if the defendant had indicated that he wanted a

bench trial co-counsel would have submitted a jury waiver. The statements of defense counsel

and co-counsel do not establish that they overrode the defendant’s desire for a bench trial. In

finding the defendant’s claim to be without merit, the trial court essentially found defense counsel

and co-counsel more credible than the defendant.

¶ 65 The defendant argues that the trial court’s ruling was erroneous because there was no

evidence that he was informed that it was his choice whether to proceed with a jury trial or a bench

trial or that he knew the difference between the two options. This argument is forfeited. See

Enoch, 122 Ill. 2d at 186 (arguments not raised in the trial court are generally forfeited on appeal).

As set forth above, the defendant did not make any such argument in his presentence investigation

or during the preliminary Krankel hearing. The defendant stated only that he was “steered” toward

a jury trial and that he had told defense counsel all along that he wanted a bench trial.

¶ 66 Finally, the defendant argues that the trial court’s statements, that (1) the defendant’s

desire for a bench trial may not fall within the purview of Krankel and (2) the claim failed because

a bench trial would not have changed the outcome, exhibited a misunderstanding of the law. We

agree that some of the trial court’s statements were improper. A trial counsel’s refusal to allow a

defendant to exercise his choice to a bench trial can be ineffective assistance of counsel. See

Barkes, 399 Ill. App. 3d at 988. Further, the issue is not subject to a harmless-error analysis

because “the denial of one’s right to a bench trial is a ‘structural defect affecting the framework

within which the trial proceeds, rather than simply an error in the trial process itself.’ ” McCarter,

385 Ill. App. 3d at 943 (quoting Arizona v. Fulminante, 499 U.S. 279, 310 (1991)). “Thus, the

fact that the outcome of the case might have been the same if defendant had received a bench trial

is not relevant to the question of prejudice under Strickland.” Id. at 944. Accordingly, the trial

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court’s statements questioning whether Krankel applied and noting that the defendant did not

suffer prejudice, because a bench trial would have had the same outcome, were misplaced.

Nonetheless, as explained above, the preliminary inquiry revealed that defense counsel and co-

counsel did not impede the defendant’s right to a bench trial.

¶ 67 Moreover, People v. Powell, 281 Ill. App. 3d 68 (1996), cited by the State, supports our

determination. In Powell, the defendant filed a pro se posttrial claim alleging that trial counsel

was incompetent because he told trial counsel that he wanted to have a bench trial but trial counsel

ignored his repeated requests. Id. at 70-71. The trial court held a hearing where both the defendant

and trial counsel testified that the defendant said he wanted a bench trial but counsel advised

against it. Id. at 71. The trial court denied the motion, finding that advising the defendant to take

a jury trial was within the realm of reasonable trial strategy and noting that the defendant never

advised the trial court that he wanted a bench trial. Id. at 72. On appeal, the reviewing court

affirmed the trial court’s determination, emphasizing that “a defendant who wishes a bench trial

instead of a jury trial must make his position known to the trial court if his trial attorney fails to do

so.” Id. at 73.

¶ 68 The present case presents facts similar to those in Powell. As in Powell, the present

defendant alleged that he told trial counsel that he wanted a bench trial but was steered toward a

jury trial. Also as in Powell, the defendant stood silent when defense counsel informed the trial

court that it would be a jury trial and during the entire jury selection process. When defense

counsel refuses or fails to inform the trial court that the defendant wishes to proceed by bench trial,

“the defendant is obliged to make his wish to waive the jury known to the trial court.” People v.

Downs, 2017 IL App (2d) 121156-C, ¶ 58 (citing Powell, 281 Ill. App. 3d at 73); see also People

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v. Brown, 2013 IL App (2d) 110327, ¶ 21 (the onus to assert the right to a bench trial is on a

criminal defendant). Accordingly, as in Powell, the defendant’s claim has no merit.

¶ 69 Cases cited by the defendant are unpersuasive. In People v. Townsend, 2020 IL App (1st)

171024, the defendant, in a pro se postconviction petition, raised a claim of ineffective assistance

of counsel alleging that he told trial counsel that he wanted a bench trial but she told him that “she

was running the show and that [the defendant] was getting a jury trial.” Id. ¶ 14. The trial court

summarily dismissed the petition, finding that, even if it had been a bench trial, the result of the

trial would have been the same. Id. ¶ 15. On appeal, the reviewing court reversed and remanded

for second stage proceedings, holding that the petition set forth an arguable claim that defense

counsel told the defendant that he did not have the choice to waive a jury trial. Id. ¶ 43. In Barkes,

399 Ill. App. 3d at 988, this court reversed the second-stage dismissal of the defendant’s

postconviction petition, holding that allegations that the defendant told trial counsel that he wanted

a bench trial but that trial counsel refused and told the defendant she was “running the show”

entitled the defendant to an evidentiary hearing on the claim. Id.

¶ 70 In McCarter, 385 Ill. App. 3d at 926, in a posttrial motion, the defendant alleged that trial

counsel failed to heed his wish for a bench trial. The trial court made limited inquiry and denied

the motion, finding that a bench trial would have had the same result. Id. at 927. On direct appeal,

the reviewing court noted that, with regard to being denied the right to a bench trial, whether a

bench trial would have had the same result as the jury trial was not relevant to the question of

prejudice under Strickland. Id. at 943-44. The reviewing court held that the trial court’s “cursory”

examination of the defendant’s allegation was insufficient, and remanded the case for the trial

court to either clarify why it may have implicitly found the claim “spurious on its face” or make

further preliminary inquiry under Krankel. Id. at 944.

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¶ 71 Townsend and Barkes are distinguishable because they involved first and second stage

dismissals of postconviction petitions and thus, unlike the present case that included a preliminary

Krankel inquiry, there had yet to be any input from trial counsel. Further, the allegations in those

cases are not similar to this case. In both of those cases, the defendants alleged that they requested

a bench trial but were told that trial counsel was “running the show.” Thus, the allegations in those

cases were that the defendants did not know they had the choice to waive a jury trial. In this case,

the defendant alleged only that he was “steered” toward a jury trial and that he told defense counsel

that he wanted a bench trial. The defendant did not allege that he did not know he had the choice

to waive a jury trial and the trial court found that, based on pretrial hearings, the defendant was

well aware of his rights with regard to a bench trial. McCarter is distinguishable because in that

case, the trial court failed to conduct a preliminary Krankel inquiry. In the present case, the trial

court conducted a preliminary Krankel inquiry and concluded that the defendant’s claim was

without merit.

¶ 72 2. Prior Arrest

¶ 73 Finally, the defendant argues that defense counsel was ineffective in failing to raise, in a

posttrial motion, the claim that the trial court erred in admitting evidence of a prior arrest. The

defendant argues that he was prejudiced because that failure resulted in this court reviewing the

error only for plain error. The defendant argues that if the issue was raised in a posttrial motion,

the trial court likely would have granted a new trial and, if not, this court would have reviewed the

issue on appeal under an abuse of discretion standard and ordered a new trial.

¶ 74 This argument is without merit. As stated by our supreme court:

“Plain-error review under the closely-balanced-evidence prong of plain error is

similar to an analysis for ineffective assistance of counsel based on evidentiary error insofar

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as a defendant in either case must show he was prejudiced: that the evidence is so closely

balanced that the alleged error alone would tip the scales of justice against him, i.e., that

the verdict “may have resulted from the error and not the evidence” properly adduced at

trial (see People v. Herron, 215 Ill.2d 167, 178 *** (2005) (plain error)); or that there was

a “reasonable probability” of a different result had the evidence in question been excluded

(see Strickland, 466 U.S. at 694 ***).” People v. White, 2011 IL 109689, ¶ 133.

As explained above, the defendant failed to establish that the admission of the prior arrest resulted

in plain error. The evidence was not so closely balanced that it tipped the scales of justice against

him and the error did not deprive him of a fair trial. The defendant’s claim of ineffective assistance

is similarly without merit because, even if defense counsel had raised the subject issue in a posttrial

motion, there is no reasonable probability that the outcome of the proceeding would have been

different. The failure to raise the argument thus did not prejudice the defendant. Strickland, 466

U.S. at 694.

¶ 75 III. CONCLUSION

¶ 76 For the reasons stated, we affirm the judgment of the circuit court of Lake County.

¶ 77 Affirmed.

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