People v. Rowlands

2022 IL App (5th) 200221, 213 N.E.3d 844, 464 Ill. Dec. 472

• Court: Appellate Court of Illinois
• Decided: November 14, 2022
• Docket: 5-20-0221
• Status: Published

Opinion

NOTICE 2022 IL App (5th) 200221 Decision filed 11/14/22. The text of this decision may be NO. 5-20-0221 changed or corrected prior to the filing of a Petition for Rehearing or the disposition of IN THE the same.

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Effingham County. ) v. ) No. 19-CF-137 ) JOSHUA D. ROWLANDS, ) Honorable ) Allan F. Lolie, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE MOORE delivered the judgment of the court, with opinion. Justices Welch and Cates concurred in the judgment and opinion.

OPINION

¶1 The defendant, Joshua D. Rowlands, was convicted, following a trial by jury in the circuit

court of Effingham County, of one count of aggravated criminal sexual abuse and one count of

predatory criminal sexual assault of a child. 720 ILCS 5/11-1.60(c)(1)(i), 11-1.40(a)(1) (West

2018). He was thereafter sentenced to a total of 13 years of imprisonment in the Illinois

Department of Corrections (IDOC), to be followed by a term of mandatory supervised release

(MSR). In this direct appeal, he contends the State did not prove him guilty beyond a reasonable

doubt and that the trial judge erred in his admonishments to the potential jurors. For the reasons

that follow, we affirm.

1 ¶2 I. BACKGROUND

¶3 On March 28, 2019, the defendant was charged, by information, with one count of

aggravated criminal sexual abuse. The information alleged that between March 8 and March 10,

2019, the defendant “knowingly committed an act of sexual conduct with B.H., who was under

13 years of age when the act was committed, in that the defendant knowingly touched the breast

of B.H. with his hand for the purpose of sexual arousal of the defendant.” On April 17, 2019, the

defendant was charged, by indictment, with the same offense. On January 24, 2020, the defendant

was charged, by information, with one count of predatory criminal sexual assault of a child. The

information alleged that between March 8 and March 10, 2019, the defendant “knowingly

committed an act of sexual contact with B.H., who was under 13 years of age when the act was

committed, in that the [d]efendant touched the vagina of B.H. with his finger for the purpose of

sexual arousal of the defendant.” On February 19, 2020, the defendant was charged, by

indictment, with the same offense.

¶4 The case proceeded to a trial by jury on both counts. Jury selection was conducted on

February 24, 2020, during which the trial judge read to the potential jurors the four principles of

law required by Illinois Supreme Court Rule 431(b) (eff. July 1, 2012), which are known

commonly as the Zehr principles.1 The trial judge asked each potential juror if that juror heard

the four principles, agreed with them, and accepted them to be true. Each potential juror answered

affirmatively. The trial judge did not ask any of the potential jurors if they understood the four

principles.

1 The four principles are that a defendant (1) is presumed innocent of the charge(s) against him or her, (2) is not required to offer any evidence on his or her own behalf, (3) must be proved guilty beyond a reasonable doubt, and (4) may not have his or her failure to testify held against him or her. See People v. Zehr, 103 Ill. 2d 472, 477 (1984). 2 ¶5 Testimony in the trial began on February 27, 2020. The first witness to testify for the State

was B.H. She testified that at the time of trial she was 12 years old and that she was born on

March 15, 2007. She testified that in March 2019, prior to her birthday, she went to a sleepover

at the home of her friend, Kyleigh. She testified that Kyleigh’s stepfather is the defendant. B.H.

testified that while she was sleeping at Kyleigh’s home, the defendant lay down beside her and

began to touch her. She testified that the defendant first rubbed her stomach, then moved his hand

to her chest, then down to “in [her] pants.” B.H. was asked where “in particular” the defendant

touched her under her pants. When B.H. did not respond, counsel for the State added, “Do you

know, [B.H.], or can you elaborate? [B.H.], could you answer the question? Besides your breast

and your stomach, where else did he touch you at? However—whatever you want to say, say it.”

When B.H. still did not respond, counsel asked to withdraw his question and continued with

other, more general, questions about the sleepover, which adduced testimony from B.H. that she

and Kyleigh were sleeping together on a hide-a-bed on the Saturday morning that the touching

occurred.

¶6 Thereafter, counsel for the State asked B.H., “after he touched your breasts, did he touch

any other parts of your body?” B.H. answered, “Yes.” When asked to elaborate, B.H. did not

respond, and counsel again asked to withdraw his question. The trial judge responded, “Give her

time. You can withdraw it if you like, but there’s no hurry here.” Counsel then stated, “[B.H.],

you can answer the question when you feel ready.” B.H. still did not respond. The trial judge

then stated, “State, maybe you can proceed to further questioning for a little bit if you have more.”

Counsel asked B.H. to identify the defendant in court, which she did. He thereafter stated, “And

I’ll ask one more time. [B.H.], anything else that you want to add where [the defendant] touched

you when he woke you up that morning?” B.H. did not respond verbally. Counsel then stated,

“She is nodding, Judge, for the record that she doesn’t wish to answer it. No more questions.” 3 ¶7 Defense counsel requested a short recess, after which he declined to cross-examine B.H.

The State then called Robyn Carr to testify. She testified that she was the senior forensic

investigator at the Children’s Advocacy Center of East Central Illinois (CAC). She testified with

regard to her qualifications, certifications, and the general procedures of the CAC, then testified

that on March 25, 2019, she conducted an approximately 45-minute forensic interview with B.H.

at the CAC. She authenticated People’s exhibit No. 1 as a copy of the audio and video recording

of that interview. The exhibit was admitted into evidence and immediately published to the jury.

¶8 Of significance to this appeal, in the interview that was viewed by the jury, the ceiling-

mounted camera showed that B.H. and Carr entered the interview room together, then sat on

chairs that were approximately three feet away from each other, with no table or other obstruction

between them. Carr gave B.H. some background information about the CAC interview room and

ensured that B.H. understood that, if she did not know the answer to a question or did not

remember, she should tell that to Carr and that B.H. should only talk about things that B.H. knew

“are true and really happened.” Carr also told B.H. that, if Carr got “something wrong,” B.H.

should correct her.

¶9 With regard to the alleged incident in this case, B.H. stated that she went to her friend

Kyleigh’s house “a little bit after school on Friday” and stayed until Sunday. She stated that

“Saturday morning is when everything happened.” B.H. stated that she and Kyleigh were

sleeping on the hide-a-bed in the living room and that “he came over and lay next to me.” She

stated that he put his arm around her “for a few minutes,” then began rubbing her stomach “up

and down,” then stopped “for a minute,” then began rubbing her stomach again and squeezing it.

She described the pajamas she was wearing as having an elastic band, and she stated that she felt

“his hands kind of going down a little bit.” She stated that this happened a few times and that,

because she was scared, she tried to move away but could not move and “just froze there.” 4 ¶ 10 She stated that “eventually” his fingers moved inside her pants and that he “tried to go into

[her] underwear,” at which point “he didn’t really touch [her] private that much, but he did a little

bit.” She stated that, when Kyleigh’s sister Reagan got on the bed, “he moved his hand away

really fast” and that he also stopped when the dog got on the bed. She stated that eventually “he

started rubbing [her] stomach again,” then started trying to “go up” the sports bra she was wearing

but “really didn’t,” and instead “stayed on the outside and was squeezing.” B.H. stated that he

had his hand on her back and was rubbing her back, and then started rubbing her “butt and was

squeezing it” over her pants “for a long time.”

¶ 11 B.H. then stated, “I’m going to show you,” and stood up. She pointed with her right hand

to an area between her legs, approximately midway between her knees and her hips, stating as

she did so (and as she quickly then sat back down), “in the middle, down here, he took his finger

and started rubbing,” which made her “really scared.” She stated that, although Kyleigh was in

the same bed, right next to her, “even if I did try to say something, I don’t know what I would

say.” She added that “he also smelled really bad,” which she described as a “weird body odor.”

¶ 12 B.H. stated that she “was kind of scared to go home” because she “didn’t really want to

talk about” what had happened, so she stayed another night at Kyleigh’s house, which she stated

she also did because she “really didn’t know what to do” and “was just scared.” She stated that,

for the rest of the weekend, he would stare at her and seem upset if she did not smile at him, so

she would smile at him to reassure him “it was okay.” She stated that on Sunday morning, he

again came into the room where she was sleeping and “held [her] hand.” She stated that, when

she got home, she did not want to tell her guardian, Betsy, so she called her grandmother in

Colorado and told her, then asked her grandmother to tell Betsy, which her grandmother did.

¶ 13 Carr then asked B.H. the name of the man she had been referring to. B.H. answered “Josh”

and added that he was “Kyleigh’s step-dad” and “the dad of the house.” After a discussion of 5 other matters, Carr eventually asked again about the alleged incident. B.H. stated that “one thing

I forgot was he kissed my neck a few times,” which she stated made her “really uncomfortable.”

Subsequently, Carr stated that she wanted to make certain she had all the details correct and so

wanted to ask B.H. some specific questions. She asked B.H. to tell her more about the defendant

touching B.H.’s “privates.” B.H., who was still seated across from Carr, moved her right hand

back and forth horizontally near the tops of her thighs, stating “he kind of just like went like

halfway, not all the way.” She stated that “he didn’t really like go fully in my underwear, but he

was, he kind of stopped halfway because I wouldn’t let him go farther.” She stated that she

“locked [her] legs shut” but “couldn’t move” away because she was frozen and scared. She stated

that the defendant tried to move her legs but that she did not let him. She stated that he tried to

move her underwear at one point as well.

¶ 14 After a general discussion of other details not relevant to the issues raised on appeal by the

defendant, and after Carr briefly left the interview room, Carr returned and thereafter asked B.H.

to tell her “where the touching was when you’re talking about your privates” and to describe

more about when the defendant’s hand was in her underwear and “was touching the skin of [her]

body.” Carr added, “Where did his hand go?” B.H. answered that she was beginning to get “a

little bit” of pubic hair and that “when he was kind of like going down a little bit right here”—at

which point she touched an area near her genitalia—the defendant “was kind of like *** playing

with” her pubic hair and “twisting it around on his finger,” which also made her “really

uncomfortable.” She then moved her right hand back and forth horizontally across her thighs at

the point where her legs separated from her midsection and stated, “he kind of got like right to

like right about here.” She thereafter added, “on my private, through my clothes,” he “played

around with” her “private.” She agreed with Carr’s statement that the defendant’s hand was

“further down” on her “privates” when it was over her clothes than when it was underneath. 6 During the interview, B.H. also explained that it made her uncomfortable to discuss changes in

her body, such as puberty, with Betsy.

¶ 15 We note that, although we have described the relevant parts of the entire interview

chronologically from start to finish, at trial a short recess was taken at approximately the 18-

minute mark of the interview, so that the video could be fast-forwarded past comments of a

potentially sexual nature made by B.H. about the defendant and his oldest stepdaughter, as well

as about the defendant and another young girl known to B.H., which the parties agreed prior to

trial the jury should not hear. During the recess, outside the presence of the jury, defense counsel

made the following statement on the record:

“For the benefit of the Appellate Court if, God forbid, this case makes it that far, I as a

matter of tactics, decided not to cross-examine the alleged victim, [B.H.]. I did that

realizing that it is a massive tactical risk. I did that after consulting with [the defendant],

and considering our goal in the litigation. Now, if this tactical decision that I made

backfires, that’s on me, I understand I can’t pass that off on my client. The goal in the

litigation for the defendant is not to just beat Count II. If we wanted to resolve this case

with a judgment against him on Count I, we had that opportunity. So [the defendant’s] goal

in this litigation is to win. We think, I think that this is an appropriate tactical decision in

light of that goal. We felt that *** cross-examining [B.H.] would have given the State

another opportunity to get her to say what they wanted her to say, and we didn’t want to

give her that chance. If we had cross-examined her, I suppose there could have been a

beyond the scope objection if they tried to get back into that, but there is no security in that

because that’s a matter for the [trial judge’s] discretion. Any cross-examination that I

would have made of her would have been, you know, specific to the allegations so it

probably would not have been beyond the scope for the State’s Attorney to redirect her in 7 that fashion. So we recognize that this was a massive tactical risk, but for the benefit of the

record, I thought it would be appropriate to explain what we are doing here.”

¶ 16 The trial judge then asked the defendant if he disagreed with anything his counsel had

stated. The defendant responded, “No.” The trial judge then stated the following:

“I would note just for the record, they were lengthy, these periods of silence, and sobbing

when the witness, [B.H.,] was on the stand and she was unable to respond to the main

question in the State’s direct. And I just think that’s important to mention that in light of

what you said as well.”

Following the recess, the remainder of the recorded interview, described in detail above, was

played for the jury.

¶ 17 The next witness to testify was Elizabeth “Betsy” Butler. She testified that she was B.H.’s

legal guardian and was a friend of B.H.’s mother, who was now deceased. She testified that she

had known B.H. since B.H. was two years old. Betsy testified that on Friday, March 8, 2019,

B.H. went to a sleepover at the home of her best friend, Kyleigh. She testified that, when she

spoke to B.H. on Saturday, B.H. wanted to stay an additional night, which Betsy let her do. Betsy

testified that she picked B.H. up on Sunday, March 10, 2019, and that “[w]hen [B.H.] got in the

car, I could tell she was a little off. Quiet. Not looking at me.” She testified that B.H. was usually

“[h]appy *** [c]arefree[, and] adventurous.” She testified that instead, B.H. was “really sullen

and quiet” on that Sunday. She testified that B.H. later called B.H.’s grandmother and that, when

Betsy walked into the room where the call was taking place, B.H. was crying. She testified that,

when she asked what was wrong, B.H. asked her to talk to B.H.’s grandmother. As a result of

what B.H.’s grandmother told Betsy and as a result of a subsequent conversation between Betsy

and B.H., Betsy called the police. Defense counsel declined to cross-examine Betsy.

8 ¶ 18 Jason McFarland testified that he was a police officer with the Effingham Police

Department and that on Sunday, March 10, 2019, he was a lieutenant assigned to investigations.

He identified the defendant in court, then testified that on March 10, 2019, he received a report

from Officer Jason Gouchenour, which led McFarland to speak to B.H. on March 11. He testified

that he did not discuss the substance of the allegations with B.H. in much detail at that time,

because he wanted her to participate in a forensic interview at the CAC first. McFarland testified

that the CAC could not conduct an interview until March 25, due to scheduling issues with CAC

staff. He testified that he interviewed the defendant for approximately one hour on March 13,

along with Detective Joshua Douthit, and that the interview was audio and video recorded. He

authenticated People’s exhibit No. 2 as a copy of the audio and video recording of that interview.

The exhibit was admitted into evidence and immediately published to the jury.

¶ 19 Of significance to this appeal, in the interview that was viewed by the jury, McFarland and

Douthit entered the interview room together, where the defendant was already seated on a chair.

After discussions not relevant to this appeal, McFarland began to question the defendant about

the incident. The defendant stated that B.H. had spent the entire previous weekend at his house,

and his statements about the details of the sleeping arrangements and events of the weekend—

other than the alleged improper touching—were for the most part consistent with the statements

of B.H. He denied that anything memorable happened over the weekend. He agreed that he got

into the hide-a-bed with B.H. and Kyleigh on Saturday morning but stated that it was not unusual

for his two youngest stepdaughters, Kyleigh and Reagan, to climb into his bed, with their mother

present as well, or to want to be hugged. The defendant denied that he touched B.H., even

inadvertently or in a way that could be misconstrued by her, while he was on the hide-a-bed with

B.H. and Kyleigh.

9 ¶ 20 Douthit then told the defendant that it was “very clear” from talking to B.H. and others that

touching occurred on the bed and that the officers needed to understand the specifics of it and

whether it was innocent or not. He stated that the defendant needed to be honest with them. The

defendant stated that he and B.H. “wrestled” on the bed a little on Friday night, as he often did

with his kids and their friends, but stated that there was nothing of a sexual nature about it.

Douthit then asked him to be “very specific” about any contact with B.H. on the hide-a-bed on

Saturday morning. The defendant stated that he did not remember any contact on Saturday

morning, although he remembered that B.H. asked him for a hug on Sunday morning and that he

gave her one then.

¶ 21 The defendant stated that, on Saturday night, Kyleigh fell asleep on the bed, with her head

on his chest, while the others watched a scary movie and that B.H., who was facing away from

him, held onto his hand at times during the movie because she was scared. He stated that, during

that time, B.H. sometimes moved or pulled on his hand and arm, including onto her “side,” which

he thereafter described as around her hip and leg area. He denied that his hand or arm were ever

on any part of her body that was “inappropriate.” He denied that any part of his body other than

perhaps his “upper” arm could have touched B.H.’s breasts when she was pulling on him.

¶ 22 McFarland then mentioned that “in this day and age *** kids get sexualized very early”

and that some girls become “hyper-sexualized at that age,” which he suggested could lead a child

to take the sexual initiative with an adult. He then stated that he had spoken with B.H. and

believed her when she said that touching had occurred but was not sure if she had told him the

entire truth about what happened. The defendant denied that B.H. had made sexual advances

toward him and continued to deny that any inappropriate touching occurred but reiterated that

the upper part of his arm could have “brushed across” B.H.’s chest when she was pulling on it

during the scary movie. McFarland then discussed DNA evidence and asked if there was any 10 reason the defendant’s DNA would be on B.H.’s underwear and bra. The defendant answered

“No” and thereafter stated, when asked, that he would give a DNA sample that day. He thereafter

reiterated that his DNA would not be on her bra and underwear and again offered to give a DNA

sample. He stated that possibly DNA could be on B.H.’s pajama pants because of the innocent

contact they had during the movie, but not in the area of her vagina or buttocks.

¶ 23 Subsequently, Douthit again emphasized that the defendant needed to be truthful with the

officers because they found B.H. to be “super believable” and needed to hear his side of what

happened. The defendant continued to deny that there was inappropriate contact and stated that

the only possible explanation for B.H.’s contention that she was touched inappropriately was

inadvertent or accidental touching near her vagina or buttocks when she pulled on his arm during

the movie. McFarland again brought up the DNA evidence, telling the defendant that it was

important for his statements to the officers to match up with any DNA evidence that was later

discovered. He again mentioned the possibility that B.H. initiated sexual contact with the

defendant, such as by sticking the defendant’s hand down her pants, and stated, as he had

previously, that he believed the defendant’s DNA would be found on B.H.’s underwear.

¶ 24 The defendant thereafter stated that he remembered feeling B.H.’s “stomach” when she

clinched the defendant’s hand and arm because B.H. was wearing a shirt that was short and would

“slide” but that B.H. did not put the defendant’s hand or arm down her pants. When again asked

when this touching occurred, he again stated that he was talking about Saturday night, when they

all watched the movie together. When asked if there was a possibility that his hand touched her

underwear or pajama pants, the defendant answered, “It may have, depending on *** where” her

clothing was exactly on her body. He stated that he was paying attention to the movie, not her.

He stated that at times he moved his arm back to its original position, because it was sometimes

uncomfortable when B.H. was pulling on it, and that he could have accidentally touched her at 11 those times too. He stated that, if B.H. thought he touched her inappropriately, it was “totally a

misunderstanding” on her part. When asked, he reiterated that, if B.H. “got touched,” it was not

intentional.

¶ 25 Douthit again emphasized that the officers believed B.H. and were trying to figure out what

happened. He stated that he believed there was definitely rubbing of the vagina area over the

clothing. The defendant stated that there may have been “inadvertent” or “accidental” touching

but thereafter stated that the only way that was possible was if it happened while B.H. had her

arms wrapped around his arms as they watched the scary movie. When asked about Saturday

morning, he again stated that nothing happened at that time, although he gave her a hug on

Sunday morning. He then stated, “come to think about it, it was Saturday morning too.” Douthit

then asked the defendant to “walk [Douthit] through Saturday.”

¶ 26 The defendant stated that “nothing” happened and that he got on the hide-a-bed, where the

girls were both “on their phones” and where he stayed and talked to them for “a while.” With

regard to the way he hugged B.H. on Saturday morning, the defendant stated that B.H. was lying

down and he was standing up, so he put his arms “lower” near her “lower back.” He denied that

he could have touched her buttocks. As far as touching B.H. while they were both lying in the

bed, he said it would have only occurred because she was lying “right next to” him. He stated

that it was “pretty much the exact same thing” on Saturday and Sunday.

¶ 27 Douthit thereafter asked if the defendant believed B.H. was trustworthy and then asked if

he thought she could be imagining being touched on the waist or buttocks or would “make this

up.” The defendant stated that he did not think so. Douthit then gave the defendant some of the

details about B.H.’s allegations of the defendant touching her, including that B.H. stated that she

felt the defendant touching her buttocks area and below her waist area where her vagina would

be. Douthit asked, “Can you explain that to us please?” The defendant answered, “No, I can’t 12 explain it to you.” He denied that he embraced or hugged B.H. while the two were together in

the bed, reiterating that he hugged her only when he was standing up and she was lying on the

bed.

¶ 28 McFarland then left the interview room, and Douthit mentioned to the defendant that the

defendant should think about B.H., and not putting her “through a long ordeal,” and should

explain any innocent touching that may have happened and been misunderstood by B.H. Douthit

stated that there had to be an explanation because B.H. “didn’t just make up that she was touched

in the buttocks and the vagina area.” The defendant stated that if he touched “her anywhere

around there” it was “certainly *** inadvertently.” Douthit asked him if he remembered doing

that. The defendant stated that he did not. He also stated that if he touched her while they were

all wrestling around, that was inadvertent as well and that, if that happened, he was “very, very

sorry, but it wasn’t intentional in any way.”

¶ 29 After more questioning, Douthit told the defendant, “I know you want to say what

happened.” The defendant continued to deny that he intentionally touched B.H. in a sexual way

and continued to state that he did not remember touching her, although he reiterated that when

he hugged her, it was on her lower back, which he noted was near the top of her butt. He stated,

“Maybe that’s what it was.” Douthit asked if that would explain the defendant’s DNA being in

that area, to which the defendant answered, “Yes, that would be the reason.” He reiterated that,

to the extent he hugged her in the bed, any inappropriate touching was inadvertent and involved,

at most, her buttocks. He again denied that he touched her in “the front.” He conceded that he

might have touched her “around the waistline” when removing his hand after the hug, but “no

lower.” Douthit asked him if he was “sure,” to which the defendant responded, “Yes.” The

officers then took a DNA sample from the defendant and concluded the interview, telling the

13 defendant that, if he thought of anything else they should know, he should ask to speak to them

again.

¶ 30 After the interview was played for the jury, McFarland testified that, although the DNA

sample was taken, it was not sent off for analysis, because officials at the crime lab indicated

that, based upon the allegations in this case, it was highly unlikely there would be any DNA

found. Following McFarland’s testimony, the State rested its case. Outside the presence of the

jury, defense counsel made a motion for a directed verdict with regard to both counts. Counsel

stated that he would focus his remarks on count II, predatory criminal sexual assault of a child.

He argued that “[t]here has been no testimony, either live testimony or in the statements [of the

defendant and B.H.] that there was any contact of any nature between [the defendant’s] finger

and the vagina of” B.H. He argued that, accordingly, there was simply no evidence to support

count II. Counsel for the State countered that B.H.’s CAC interview—which he reminded the

court could be considered as substantive evidence by the jury pursuant to Illinois statute—

included statements from her that the defendant touched her pubic hair and included her pointing

“to exactly the area where he stops underneath her underwear.” Counsel argued that “[i]t can be

inferred by a jury that he was at the beginning or start of her genitals which would be the vagina

in this case and a reasonable jury can make that inference.” The trial judge stated that he agreed,

and he denied the defendant’s motion for a directed verdict.

¶ 31 The first witness to testify on behalf of the defendant was Kyleigh O’Dell. She testified

that the defendant was her stepfather. When asked if she remembered the weekend that B.H. last

spent the night with her at her house, Kyleigh testified, “Not that much but I do some.” She

agreed that B.H. came over on Friday night. She testified that she and B.H. slept together on the

hide-a-bed in the living room and that two of her siblings slept in the living room with them as

well. She did not know why the four of them slept in that room instead of their bedrooms. When 14 asked if the defendant got in the hide-a-bed with Kyleigh and B.H., Kyleigh testified, “No. I

don’t think so.” She testified that she did not see the defendant touch B.H. She testified that on

Saturday night, they watched a movie together. She testified that she and B.H. were on the hide-

a-bed and that she could not remember where the defendant was sitting, although he was

watching the movie with them. Kyleigh testified that she did not recall anything happening during

the movie and that they slept in the living room again that night. She testified that on Sunday

morning, the defendant came into the living room to say hi to everyone. She did not see anything

happen between the defendant and B.H. She testified that, when it was time for B.H. to go home,

B.H. “basically, kind of started crying, being like she started whining because she said she didn’t

like Betsy.” At no point did Kyleigh testify to any physical contact, whether accidental,

incidental, or purposeful, between the defendant and B.H.

¶ 32 The next witness to testify on behalf of the defendant was Reagan O’Dell. She testified that

she was 14 years old and that she lived with, inter alia, the defendant (who is her stepfather) and

Kyleigh. She testified that among the furniture in her living room was a hide-a-bed. Reagan

testified that she remembered the last time B.H. slept over at her house. She testified that B.H.

came over on that Friday afternoon and that all she could remember about that night was them

watching a movie together. She testified that she saw B.H. and Kyleigh on the hide-a-bed on

Saturday morning but did not see the defendant there. She did not remember anything she did on

Saturday or Saturday night. She testified that B.H. and Kyleigh slept in Kyleigh’s room on

Saturday night. She testified that she remembered that on Sunday, when it was time for B.H. to

go home, B.H. “was crying because she didn’t want to leave.” Reagan testified that she never

saw the defendant touching B.H. at any time during the weekend. At no point did Reagan testify

to any physical contact, whether accidental, incidental, or purposeful, between the defendant and

B.H. The State declined to cross-examine Reagan, and thereafter, the defendant rested his case 15 and, outside the presence of the jury, again argued for a directed verdict on count II. The trial

judge again agreed with the State that there was sufficient evidence for the case to go to the jury,

stating that, in his “recollection of the video, she pointed specifically to the area immediately

between her legs, which obviously would be indicative of her genitalia.”

¶ 33 A jury instruction conference followed. Neither party objected to any of the proposed

instructions. The following morning, February 28, 2020, the trial resumed, with the parties

delivering their closing arguments. Counsel for the State acknowledged that at trial B.H. “kind

of got quiet and never fully answered the question” about being “touched below near her

genitalia” but reminded the jurors that they could consider her CAC interview, in which she

stated, inter alia, that the defendant “rubbed the outside of her genitals over the clothes.” Counsel

argued that B.H. was believable because she “didn’t equivocate[,] *** was not evasive[, and]

*** was not inconsistent.” Counsel also pointed out that, during her CAC interview, B.H. was

very descriptive, including facts such as that the defendant had a strong body odor and that B.H.

disclosed the abuse in a timely manner on the day she returned home from the defendant’s house.

He argued that the defendant’s statement corroborated B.H. because in his statement, the

defendant admitted that he was in the hide-a-bed with B.H., whereas the testimonies of both

Kyleigh and Reagan “were all over the place,” which made them “simply not believable” as

witnesses. Counsel for the State played part of People’s exhibit No. 2 for the jury, pointing out

that the defendant admitted to (1) lying on the hide-a-bed beside B.H., (2) touching B.H.’s

stomach, then her side, near her hip, and (3) possibly having his hand on her underwear.

¶ 34 With regard to the charges the State was required to prove, counsel thereafter argued to the

jury that “[y]ou can draw the inference that if you are playing with somebody’s pubic hair near

the region she was pointing, he was making contact with her vagina. It’s perfectly plausible that

happened.” Counsel for the defendant, on the other hand, argued that, in essence, the defendant 16 was coerced by the police into confessing to things he did not do because he was questioned over

and over again by the officers about the same things and because the officers would not accept

his innocent answers for what happened. He did not argue, at all, that, anatomically speaking, it

was not physically possible for the defendant to have touched B.H.’s vagina or that the evidence

showed, at most, that the defendant touched only B.H.’s pubic hair.

¶ 35 The trial judge thereafter instructed the jury, inter alia, that, to find the defendant guilty

beyond a reasonable doubt of the charge found in count II, the jury must conclude that, inter alia,

“the defendant knowingly committed an act of contact, however slight, between the sex organ of

one person and the body part of another for the purposes of arousal of the defendant.” The trial

judge also instructed the jury, inter alia, that (1) “[c]ircumstantial evidence is the proof of facts

or circumstances which give rise to a reasonable inference of other facts which tend to show the

guilt or innocence of the defendant” and (2) “[c]ircumstantial evidence should be considered by

you together with all the other evidence in the case in arriving at your verdict.” Outside the

presence of the jury, the trial judge noted that he was not sending the video exhibits back to the

jury unless they requested to watch them again, in which case he would inform the parties and

they would “decide how we wish to proceed.” The jury did not request to view the video exhibits

or send any other kind of note to the judge. The jury found the defendant guilty of both counts

against him.

¶ 36 On March 2, 2020, the defendant filed a motion for acquittal or, in the alternative, for a

new trial. Therein, he contended, inter alia, that he was not proven guilty beyond a reasonable

doubt of either count. He did not allege that the trial judge failed to properly admonish the jury

in any way. Subsequently, the defendant hired new counsel to assist him. New counsel did not

file a new posttrial motion, opting instead to stand on the motion filed by the defendant’s prior

counsel. On July 27, 2020, a hearing on the motion was held. Defense counsel renewed, 17 inter alia, the argument that there was not sufficient evidence presented at trial to support a

finding of guilt on count II. The trial judge denied the motion, noting, inter alia, his recollection

that B.H. “appeared quite believable” and that, even though she “froze up and started to cry”

during her testimony at trial, that testimony, coupled with her CAC interview, provided sufficient

evidence to support the jury’s finding of guilt.

¶ 37 Thereafter, the case proceeded to sentencing. Ultimately, the defendant was sentenced to

five years in IDOC on the count of aggravated criminal sexual abuse (count I) and eight years in

IDOC on the count of predatory criminal sexual assault of a child (count II), with the sentences

to be served consecutively and followed by a term of MSR. This timely appeal followed.

¶ 38 II. ANALYSIS

¶ 39 On appeal, the defendant contends that (1) the State failed to prove him guilty beyond a

reasonable doubt of count II, “because vague descriptions of alleged touching of the pubic hair

do not prove the specific touching necessary for predatory criminal sexual assault” of a child and

(2) the trial judge erred when he “failed to ask the potential jurors if they both understood and

accepted the Zehr principles.” With regard to his first contention, he posits that, “where the State

charged [the defendant] with touching B.H.’s vagina, it was required to present proof of an

intrusion into B.H.’s body to prove [the defendant] guilty beyond a reasonable doubt” and, in the

alternative, posits that, as used in the jury instructions, “the term ‘sex organ’ is too vague and

does not encompass nearly as much as the State argues,” which means that, “[u]nder the rule of

lenity, a bare allegation that a defendant touched a victim’s pubic hair should not be seen as proof

beyond a reasonable doubt that there was touching of the sex organ for purposes of the statute”

in question. He acknowledges the State’s argument that the jury could infer from B.H.’s

testimony and her CAC interview that the defendant touched her vagina but argues that “the

evidence does not present such an inference, and the State did not present any other evidence that 18 would prove the predatory charge beyond a reasonable doubt.” He further argues that “this Court

should hold the State to the manner in which it charged the crime, which required the State to

prove that [the defendant] touched B.H.’s ‘vagina’—and not just her ‘sex organ’—beyond a

reasonable doubt.” He posits that “[i]n order to do that, as shown by Illinois case law, the State

was required to prove that [the defendant’s] finger made an intrusion into B.H.’s body.”

¶ 40 With regard to his second contention, the defendant argues that the trial judge “asked if the

potential jurors accepted the [Zehr] principles without asking if they understood them.”

(Emphases in original.) He contends that the evidence in this case was closely balanced and that,

accordingly, reversal of the defendant’s convictions is required. He acknowledges that this

purported error was not preserved in the trial court but asks this court to consider it under the

first prong of the plain-error doctrine, described in more detail below.

¶ 41 The State responds to the defendant’s first contention of error by asserting, as it did in the

trial court, that there was in fact sufficient evidence to convict the defendant of both charges and

lays out some of that evidence in its brief on appeal. The State also notes that the defendant did

not raise his “vagina” versus “sex organ” argument in the trial court and contends that, in any

event, the State did not have to prove a “bodily intrusion” into B.H.’s vagina. The State argues

that the jury was properly instructed that what was required to be proven to sustain count II was

“an act of contact, however slight, between the sex organ of one person and the part of the body

of another.” The State notes that the defendant did not challenge the jury instructions at trial or

in his opening brief on appeal. The State further notes that, even if this court does not find the

defendant’s “vagina” versus “sex organ” argument to be forfeited, it is without merit, because

“the statutory term ‘sex organ’ is not ambiguous.” The State responds to the defendant’s second

contention of error by conceding that the trial judge erred by failing to ask the potential jurors if

they understood the Zehr principles but posits that the defendant is not entitled to invoke plain- 19 error review in this case because the defendant cannot meet his burden to “show that the evidence

was so closely balanced that the error alone severely threatened to tip the scales of justice.” The

State notes that, to determine this question, this court must conduct a qualitative, commonsense

assessment of the totality of the evidence presented at trial.

¶ 42 In his reply brief, the defendant, inter alia, reiterates his arguments with regard to the

sufficiency of the evidence, clarifies that he is not contesting the validity of the charging

instrument or the propriety of the jury instructions, and presents argument for why he believes

the evidence in this case was closely balanced and why, therefore, the trial judge’s Zehr principles

error requires reversal and remand for a new trial.

¶ 43 We first note that we agree with the State that de novo review is not appropriate with regard

to the first issue raised by the defendant in this case. As the State points out, in People v. Curry,

2018 IL App (1st) 152616, ¶ 16, our colleagues in the First District reiterated the well-established

principle of law that de novo review applies only when the facts are not in dispute and the

defendant’s guilt under the undisputed facts is a question of law. In this case, the fact of whether

the defendant touched B.H.’s vagina is very much in dispute and has been since trial. Therefore,

the defendant’s challenge on appeal is clearly a challenge to whether the evidence adduced at his

trial was sufficient to support his conviction for count II. When a defendant challenges the

sufficiency of the evidence used to convict that defendant, this court reviews the evidence

presented at trial in the light most favorable to the prosecution to determine whether any rational

trier of fact could have found beyond a reasonable doubt the essential elements of the crime or

crimes of which the defendant was convicted. See, e.g., People v. Saxon, 374 Ill. App. 3d 409,

416-17 (2007). We will not reverse a criminal conviction unless the evidence presented at trial is

so unreasonable, improbable, or unsatisfactory as to justify a reasonable doubt as to the guilt of

the defendant. Id. at 416. We allow all reasonable inferences from the record in favor of the 20 prosecution, whether the evidence in the case is direct or circumstantial. Id. There is no

requirement that this court disregard inferences that flow from the evidence or that this court

search out all possible explanations consistent with innocence and raise them to a level of

reasonable doubt. Id. We do not retry the defendant, instead leaving it to the trier of fact to judge

the credibility of witnesses, resolve conflicts in the evidence, and draw conclusions based on all

the evidence properly before the trier of fact. Id. As we undertake our review of the evidence

under the above standard, we are mindful of the fact that it is axiomatic in Illinois that the

testimony of a single witness, if positive and credible, is sufficient to sustain a criminal

conviction, even if the testimony is disputed by the defendant. See, e.g., People v. Loferski, 235

Ill. App. 3d 675, 682 (1992).

¶ 44 In this case, as described above, the defendant challenges the sufficiency of the evidence

used to convict him of count II. He does not challenge the sufficiency of the evidence used to

convict him of count I. As also described above, count II alleged the offense of predatory criminal

sexual assault of a child and specifically alleged that between March 8, 2019, and March 10,

2019, the defendant “knowingly committed an act of sexual contact with B.H., who was under

13 years of age when the act was committed, in that the [d]efendant touched the vagina of B.H.

with his finger for the purpose of sexual arousal of the defendant.” The jury was instructed that,

to find the defendant guilty of this count, the jury was required to conclude that the State had

proven beyond a reasonable doubt that, inter alia, “the defendant knowingly committed an act of

contact, however slight, between the sex organ of one person and the body part of another for the

purposes of arousal of the defendant.” In closing argument, the State specifically argued that the

jury should find that the defendant touched B.H.’s vagina, stating, “You can draw the inference

that if you are playing with somebody’s pubic hair near the region she was pointing, he was

making contact with her vagina. It’s perfectly plausible that happened.” 21 ¶ 45 On appeal, the defendant—while simultaneously claiming not to challenge the jury

instructions or the charging instrument—makes much of the distinction between “sex organ” and

“vagina” and claims that the State was required to prove some penetration, however slight, of

B.H.’s vagina by the defendant’s finger. For the following reasons, we conclude that, even if we

assume, arguendo, that the defendant is correct that the State was required to prove some

penetration, however slight, of B.H.’s vagina by the defendant’s finger, the evidence adduced at

trial was sufficient to sustain the defendant’s conviction for count II.

¶ 46 We begin our analysis of the defendant’s arguments on this issue by noting that they all are

built upon the premise, repeated multiple times throughout his briefs on appeal, that “the evidence

put forward by the State only suggests a touching of B.H.’s pubic hair.” We reject this premise,

as it is factually incorrect. It is certainly true that in the CAC interview that was presented to the

jury as substantive evidence, B.H. was asked to tell “where the touching was when you’re talking

about your privates,” to describe more about when the defendant’s hand was in her underwear

and “was touching the skin of [her] body,” and to answer Carr’s question, “Where did his hand

go?” It is equally true that B.H. answered that she was beginning to get “a little bit” of pubic hair

and that “when he was kind of like going down a little bit right here”—at which point she touched

an area near her genitalia—the defendant “was kind of like *** playing with” her pubic hair and

“twisting it around on his finger.”

¶ 47 However, at no point did B.H. state that the defendant touched only her pubic hair. To the

contrary, at the outset of the CAC interview, B.H. stated that the defendant climbed onto the

hide-a-bed with her, put his arm around her “for a few minutes,” then began rubbing her stomach

“up and down,” then stopped “for a minute,” then began rubbing her stomach again and

squeezing it. She described the pajamas she was wearing as having an elastic band, and she stated

that she felt “his hands kind of going down a little bit.” She stated that this happened a few times 22 and that, because she was scared, she tried to move away but could not move and “just froze

there.” B.H. stated that “eventually” the defendant’s fingers moved inside her pants and that he

“tried to go into [her] underwear,” at which point “he didn’t really touch [her] private that much,

but he did a little bit.”

¶ 48 A rational jury, having heard both that the defendant “played with” B.H.’s pubic hair and

that, when he “tried to go into [her] underwear,” he touched her “private *** a little bit,” could

have concluded beyond a reasonable doubt that both contacts occurred, perhaps within seconds

of each other, and could have concluded beyond a reasonable doubt that the defendant’s touching

of B.H.’s “private” constituted penetration, however slight, of her vagina. There is certainly

nothing unreasonable, improbable, or unsatisfactory about B.H.’s statements or about that

conclusion (see Saxon, 374 Ill. App. 3d at 416), as the conclusion is a reasonable inference from

her statements (see id.). This is particularly true in light of B.H.’s other CAC interview statements

and physical gesturing, described in detail above, in which she consistently used the word

“private” to describe the area he touched and during which she gestured, multiple times, to an

area of her body that a rational jury could have concluded was meant to encompass her vagina to

an extent that penetration, however slight, could have occurred when the defendant touched her

“private *** a little bit.”

¶ 49 Such a conclusion by a rational jury also would not be inconsistent with B.H.’s gesturing

and verbal statement later in the CAC interview when she was asked to tell Carr more about the

defendant touching B.H.’s “privates.” B.H., who was still seated across from Carr, moved her

right hand back and forth horizontally near the tops of her thighs, stating “he kind of just like

went like halfway, not all the way.” She stated that “he didn’t really like go fully in my

underwear, but he was, he kind of stopped halfway because I wouldn’t let him go farther.” She

stated that she “locked [her] legs shut” but “couldn’t move” because she was frozen and scared. 23 She stated that the defendant tried to move her legs but that she did not let him. Having heard

this and having heard B.H.’s clear and unequivocal statement that the defendant touched her

“private *** a little bit,” a rational jury could have concluded beyond a reasonable doubt—and

without venturing into the realm of impermissible speculation—that, even if the defendant’s

entire hand did not “go fully” into B.H.’s underwear, if it went, as B.H. stated, “halfway”—

because B.H.’s locking of her legs stopped it from going farther—one or more of the defendant’s

fingertips still could have penetrated B.H.’s vagina, depending upon the size, type, and position

of her underwear, the relative position of his hand and fingers to her vagina, and the angle at

which the defendant was attempting to enter her underwear. This is particularly true in light of

B.H.’s statement that the defendant tried to “move” her underwear at one point as well.

¶ 50 Likewise, although B.H. agreed with Carr’s statement that the defendant’s hand was

“further down” on her “privates” when it was over her clothes than when it was underneath, this

was in no way inconsistent with slight penetration of her vagina occurring when part of the

defendant’s hand was inside of B.H.’s underwear and touching her “private *** a little bit.” In

sum, there was nothing inconsistent between any of B.H.’s later statements and gestures and her

earlier statement—which we reiterate was clear and unequivocal—that the defendant touched

her “private *** a little bit.” Moreover, as explained above, when this court reviews a challenge

to the sufficiency of the evidence, we allow all reasonable inferences from the record in favor of

the prosecution, whether the evidence in the case is direct or circumstantial, and we remain

mindful of the fact that there is no requirement that we disregard inferences that flow from the

evidence, or that we search out all possible explanations consistent with innocence and raise them

to a level of reasonable doubt. See id.

¶ 51 In addition, we reject the defendant’s argument that B.H.’s statements should be viewed

with some skepticism because the CAC interview did not occur until approximately two weeks 24 after the incident in question. It is clear from viewing the CAC interview that B.H. had a detailed,

consistently described memory of the incident, and we do not believe that two weeks is such a

long period of time as to inherently distort B.H.’s memory and render her statements suspect or

unreliable. We note as well that, as described above, after Carr gave B.H. some background

information about the CAC interview room, she ensured that B.H. understood that, if she did not

know the answer to a question or did not remember, she should tell that to Carr and that B.H.

should only talk about things that B.H. knew “are true and really happened.” Carr also told B.H.

that, if Carr got “something wrong,” B.H. should correct her. For all of the foregoing reasons, we

conclude there was sufficient evidence for a rational jury to find the defendant guilty, beyond a

reasonable doubt, of count II.

¶ 52 Having concluded that the defendant’s first argument on appeal fails, we turn to his second

argument: whether the trial judge’s purported Zehr principles error requires reversal and remand

for a new trial. As noted above, the four Zehr principles are that a defendant (1) is presumed

innocent of the charge(s) against him or her, (2) is not required to offer any evidence on his or

her own behalf, (3) must be proved guilty beyond a reasonable doubt, and (4) may not have his

or her failure to testify held against him or her. See People v. Zehr, 103 Ill. 2d 472, 477 (1984).

A trial judge must ensure that each prospective juror both understands and accepts each of the

four principles. See, e.g., People v. Olla, 2018 IL App (2d) 160118, ¶ 29. It is error for a trial

judge “to ask the prospective *** jurors whether they agree with the principles but fail to also

ask whether they understand them.” Id. Thus, as the defendant alleges in this case and as the State

agrees, there was error because, as described above, the trial judge asked each potential juror if

that juror heard the four principles, agreed with them, and accepted them to be true, but he did

not ask any of the potential jurors if they understood the four principles.

25 ¶ 53 Because the defendant did not object at trial to this error, we must determine whether he is

entitled to relief under the plain-error doctrine. Id. ¶ 27. For purposes of a Zehr principles error,

plain-error review is available in two general circumstances: where the error produced a biased

jury or where the evidence of guilt was closely balanced. Id. ¶ 31. Here, the defendant argues for

the latter circumstance, contending that the evidence of guilt was closely balanced. He does not

argue that the error produced a biased jury. Accordingly, to be entitled to relief in this case, the

defendant bears the burden of persuasion to demonstrate that the evidence adduced at trial “was

so closely balanced [that] the error alone severely threatened to tip the scales of justice” against

the defendant. People v. Sebby, 2017 IL 119445, ¶ 51. To determine if the evidence meets the

standard of being this closely balanced, this court evaluates the totality of the evidence and

conducts a qualitative, commonsense assessment of it within the context of the case. Olla, 2018

IL App (2d) 160118, ¶ 32. This requires us to assess the evidence with regard to the elements of

the charged offense or offenses, along with any evidence regarding the credibility of the

witnesses. Id. If the outcome of a case depends on a choice between two versions of facts that

both are credible, the evidence may be deemed to be closely balanced. Id. ¶ 34. This also may be

true “when witnesses for the State and witnesses for the defense gave plausible opposing versions

of the events, neither of which was corroborated by extrinsic evidence.” Id. Courts must be

careful not to brand the testimony of the defendant’s witnesses as less plausible merely because

those witnesses were relatives or friends of the defendant and might be biased. Id.

¶ 54 On the other hand, evidence is not closely balanced, and there is no “ ‘credibility contest,’ ”

if one party’s version of the facts is implausible or if one party’s version of the facts is

corroborated by other evidence. Id. ¶ 35. In the context of cases, such as this one, that involve

charges and convictions for offenses such as predatory criminal sexual assault of a child and

aggravated criminal sexual abuse, a commonsense assessment of the evidence may include 26 examining whether (1) the victim had a motive to lie, (2) other evidence exists to explain the

victim’s knowledge of sexual acts, and (3) the defendant’s own statements or testimony

corroborate some or all of the allegations. Id. ¶¶ 36-37. There is no requirement that the evidence

must be overwhelming for it to be considered not closely balanced for purposes of plain-error

review. Id. ¶ 38.

¶ 55 Accordingly, we now evaluate the totality of the evidence presented at trial and conduct a

qualitative, commonsense assessment of it within the context of this case. See id. ¶ 32. As

described above, B.H.’s CAC interview statements and testimony at trial presented a clear and

consistent version of what happened on Saturday morning on the hide-a-bed, and also as

described in detail above, the CAC statements—which were both credible and plausible—were

sufficient to prove beyond a reasonable doubt the elements of the offenses with which the

defendant was charged. See id. There is nothing in the record on appeal—at all—that suggests

that B.H. had a motive to lie about what happened (see id. ¶¶ 36-37) or that suggests that at the

time of the incident she was anything other than a normal 11-year-old, sixth-grade girl. Indeed,

in his statement to McFarland and Douthit, even the defendant stated that he did not believe B.H.

would “make this up.” With regard to whether other evidence exists to explain the victim’s

knowledge of sexual acts (see id.), we do not believe this factor is relevant in this case, because

B.H.’s account of what happened did not involve recounting knowledge of explicit sexual acts

that a girl of her age would be unlikely to know and the words that she did use to describe the

touching that occurred—such as “privates” and “pubic hair”—were age-appropriate. With regard

to whether the defendant’s own statements or testimony corroborate some or all of the allegations

(see id.), we discuss this factor in detail below.

¶ 56 With regard to other aspects of the State’s evidence, we agree with the State that Betsy’s

testimony about B.H.’s withdrawn and sullen behavior after the sleepover, as well as Betsy’s 27 testimony about what she observed during B.H.’s phone call with B.H.’s grandmother in

Colorado, corroborates to some extent the State’s theory that B.H. was sexually assaulted by the

defendant at the sleepover. Although the defendant contends that B.H.’s request to spend an

additional night at the defendant’s house calls into question B.H.’s contention that an assault

occurred, B.H. explained this in her CAC interview, stating that she “was kind of scared to go

home” because she “didn’t really want to talk about” what had happened, so she stayed another

night at Kyleigh’s house, which she stated she also did because she “really didn’t know what to

do” and “was just scared.” This was completely consistent with B.H.’s many other assertions,

during the CAC interview, that she was very scared and uncomfortable during the assault and

was consistent with the testimony of Kyleigh and Reagan that on Sunday, B.H. was crying

because she did not want to go home. It was also completely consistent with B.H.’s explanation,

during the CAC interview, that she was uncomfortable discussing things like puberty with Betsy,

which is why she called her grandmother in Colorado and asked her to tell Betsy what happened,

rather than B.H. telling Betsy.

¶ 57 Having concluded that B.H.’s testimony and statements in this case were both credible and

plausible and were corroborated to some extent by Betsy’s testimony about B.H.’s post-sleepover

behavior, we must determine whether the defendant and his witnesses at trial also presented a

credible and plausible version of events, and whether, therefore, the evidence in this case was

closely balanced. See id. ¶ 34. As we consider the evidence put forward by the defendant at trial,

we are mindful of the fact, explained above, that courts must be careful not to brand the testimony

of the defendant’s witnesses as less plausible merely because those witnesses were relatives or

friends of the defendant and might be biased. See id. In this case, however, with regard to the

testimony of the defendant’s stepdaughters, Kyleigh and Reagan, there is no need for this court

to assess their credibility or the plausibility of their testimony, because both witnesses testified 28 that they did not remember much about the sleepover and both testified that they did not see the

defendant touch B.H. at all—in fact, as explained above, at no point did Kyleigh or Reagan testify

to any physical contact, whether accidental, incidental, or purposeful, between the defendant and

B.H.—whereas the defendant stated to the police that some innocent, inadvertent touching may

have occurred, either when (1) he “wrestled” playfully with B.H., (2) he “hugged” B.H., (3) he

lay in the hide-a-bed with her in the morning, or (4) the scary movie was on during the evening,

but that any touching that happened during these times was not of a sexual nature.

¶ 58 Thus, the testimony of the defendant’s two witnesses—which we reiterate was the only

evidence the defendant presented—does not corroborate the defendant’s version of the facts with

regard to the key issues that were determinative of whether the defendant was guilty of the

charged offenses, as stated in the indictment and as argued by the State at trial: whether, for

count I, he “knowingly touched the breast of B.H. with his hand for the purpose of sexual arousal

of the defendant” and whether, for count II, he “knowingly *** touched the vagina of B.H. with

his finger for the purpose of sexual arousal of the defendant.” Indeed, Kyleigh’s testimony and

Reagan’s testimony to some extent contradict the defendant’s version of the events in question,

because Kyleigh testified that she did not think the defendant ever got into the hide-a-bed with

her and B.H., whereas the defendant freely admitted that he did get into the hide-a-bed with the

girls, both on Saturday morning and on Sunday morning, and while watching the scary movie on

Saturday night. Reagan testified that she did not see the defendant on the hide-a-bed on Saturday

morning. We therefore conclude that the evidence put forward by the defendant at trial is of little

probative value when considering whether the evidence that the defendant committed the

offenses was closely balanced for purposes of plain-error review, because it certainly cannot be

said to corroborate the defendant’s version of the events, as ascertained by the jury when it

viewed the defendant’s statement to McFarland and Douthit. 29 ¶ 59 We return, therefore, to the question of whether the defendant’s own statements or

testimony corroborate some or all of the allegations against him. See id. ¶¶ 36-37. On appeal, the

defendant contends that, for purposes of plain-error review, “the evidence at trial simply came

down to B.H.’s accusations and [the defendant’s] recorded statements” and posits that his

recorded statement “presents a counter to B.H.’s testimony, and demonstrates that, at the very

least, this was a credibility contest, so the case is necessarily closely balanced.” The State,

however, is correct that the defendant’s recorded statement in fact corroborates the allegations

against him in multiple ways, such as the fact that B.H. slept over the entire weekend, the sleeping

arrangements, and the fact that the defendant was in the hide-a-bed with B.H. and Kyleigh on

Saturday morning.

¶ 60 The State is also correct that the defendant’s initial denial that he hugged B.H. on Saturday

morning—and his focus instead on the events he alleged occurred while they were watching a

scary movie on Saturday night—could be construed as an attempt to deflect the officers’ attention

away from Saturday morning, which the defendant knew was when the assault in question

actually occurred. This, in turn, could be construed as a further corroboration of B.H.’s statement

that the assault took place as she claimed on Saturday morning. Notably, no other witness

provided a statement or testimony that corroborated the defendant’s contention that B.H. held

onto the defendant’s hand and arm and pulled them onto parts of her body as the group watched

a scary movie together on Saturday night, which further calls into question the defendant’s

credibility and all of his statements about what happened on the weekend in question. Likewise,

although the defendant claimed that he “wrestled” around with B.H. on the bed in an innocent

manner on Friday night—a claim the defendant made after Douthit told the defendant that it was

“very clear” from talking to B.H. and others that touching occurred on the bed—no other witness

corroborated the defendant’s claim, and in fact the testimony of both Kyleigh and Reagan, 30 discussed in detail above, calls the defendant’s claim into question. This too diminishes the

credibility of the defendant and the plausibility of his explanations of innocent contact with B.H.,

which in turn leads to the reasonable inference that his uncorroborated assertions of playful,

innocent, or inadvertent contact with B.H. were nothing more than fabrications to attempt to

explain away the presence of any physical evidence, such as DNA, the police might uncover.

¶ 61 Indeed, we agree with the State that the defendant’s “evolving story about the physical

touching significantly diminished his credibility,” and we conclude that it ultimately rendered

his version of events to be not plausible. As McFarland and Douthit repeatedly stated that they

believed B.H. was credible and repeatedly stated that they believed the defendant’s DNA would

be found on B.H.’s underwear, the defendant adapted his story multiple times and in multiple

ways, including shifting his narrative so that he did hug B.H. on the hide-a-bed on both Saturday

and Sunday, rather than hugging her only on Sunday as he first claimed, all apparently in an

effort to provide a potentially innocent explanation for the presence of his DNA on B.H.’s

underwear, were it to be found there. Common sense dictates that there is no rational explanation

for why the defendant would believe his DNA might be found on B.H.’s underwear other than

that he knew more touching had occurred than he initially admitted had occurred. As the State

notes, the defendant went from denying any contact—even innocent or inadvertent contact—

occurred, to stating that touching might have occurred but that, if it did, it was innocent,

accidental contact of a nonsexual nature. By the end of his interview, the defendant was stating

that “accidental” touching of B.H.’s stomach, chest, buttocks, and/or the area near her vagina

could have occurred. These are, of course, the very areas that B.H. alleged the defendant

touched—intentionally and repeatedly—as he proceeded with his assault of her on that Saturday

morning.

31 ¶ 62 As explained above, evidence is not closely balanced, and there is no “ ‘credibility

contest’ ” if one party’s version of the facts is implausible or if one party’s version of the facts is

corroborated by other evidence. See id. ¶ 35. Our qualitative, commonsense assessment of the

evidence in this case demonstrates, for the reasons explained above, both that the defendant’s

changing explanations regarding his physical contact with B.H. were not credible, plausible, or

corroborated and that B.H.’s version of the facts was credible, plausible, and corroborated—at

least to some extent—by other evidence presented at trial. Accordingly, we conclude that the

defendant has not met his burden of persuasion to demonstrate that the evidence adduced at trial

“was so closely balanced [that] the [Zehr principles] error alone severely threatened to tip the

scales of justice” against the defendant. Sebby, 2017 IL 119445, ¶ 51. For that reason, he is not

entitled to reversal and remand for a new trial on the basis of the trial judge’s Zehr principles

error. See, e.g., Olla, 2018 IL App (2d) 160118, ¶ 27.

¶ 63 III. CONCLUSION

¶ 64 For the foregoing reasons, we affirm the defendant’s convictions, as well as his

unchallenged sentences.

¶ 65 Affirmed.

32 People v. Rowlands, 2022 IL App (5th) 200221

Decision Under Review: Appeal from the Circuit Court of Effingham County, No. 19- CF-137; the Hon. Allan F. Lolie, Judge, presiding.

Attorneys James E. Chadd, Ellen J. Curry, and Christopher Sielaff, of State for Appellate Defender’s Office, of Mt. Vernon, for appellant. Appellant:

Attorneys Bryan M. Kibler, State’s Attorney, of Effingham (Patrick for Delfino, Patrick D. Daly, and Timothy D. Berkley, of State’s Appellee: Attorneys Appellate Prosecutor’s Office, of counsel), for the People.