People v. Runyon

2023 IL App (4th) 230058-U

• Court: Appellate Court of Illinois
• Decided: November 2, 2023
• Docket: 4-23-0058
• Status: Unpublished

Opinion

NOTICE 2023 IL App (4th) 230058-U This Order was filed under FILED Supreme Court Rule 23 and is November 2, 2023 not precedent except in the NO. 4-23-0058 Carla Bender limited circumstances allowed 4th District Appellate under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Peoria County MARK RUNYON, ) No. 18CF290 Defendant-Appellant. ) ) Honorable ) John P. Vespa, ) Judge Presiding.

JUSTICE DOHERTY delivered the judgment of the court. Justices Turner and Harris concurred in the judgment.

ORDER

¶1 Held: Defendant’s conviction and 60-year sentence for first degree murder were upheld where (1) the trial court properly exercised its discretion in finding defendant was restored to fitness before trial, (2) the circumstantial evidence of his identity was sufficient to support his conviction, (3) his trial counsel’s performance was not deficient and thus not constitutionally ineffective, and (4) his sentence was not manifestly disproportionate to the seriousness of his offense.

¶2 A jury convicted defendant Mark Runyon of first degree murder (720 ILCS

5/9-1(a)(2) (West 2018)) for killing his father, Frank Runyon. The trial court sentenced defendant

to 60 years in prison. On appeal, defendant argues that (1) the court erred by finding he was

restored to fitness before trial, (2) the State’s circumstantial evidence was insufficient to identify

him as the person who committed the murder, (3) his trial counsel was ineffective for allowing the

jury to hear two pieces of improper evidence and for purportedly conceding in her closing argument that defendant punched his father, and (4) his sentence is excessive. We disagree and

affirm.

¶3 I. BACKGROUND

¶4 On the morning of May 2, 2018, Frank Runyon, age 74, was found severely injured

on the floor of his bedroom. Frank was immediately taken to the hospital but died of his injuries

on May 7, 2018. The only other occupant of the house when Frank was discovered was his son,

defendant Mark Runyon, then age 38.

¶5 Defendant was charged with first degree murder for knowingly striking and causing

the death of Frank, a person over 60 years of age, knowing that his acts created a strong probability

of death or great bodily harm. Defendant was also charged with criminal neglect of an elderly

person (720 ILCS 5/12-4.4a(b)(1) (West 2018)), but this charge was later dropped.

¶6 A. Pretrial Proceedings

¶7 At defendant’s first appearance and arraignment in May 2018, he refused to say

anything except “I plead the fifth.” The trial court appointed the public defender’s office to

represent defendant, and he entered pleas of not guilty. At future proceedings, defendant was more

cooperative and communicated with his counsel and the court.

¶8 Assistant Public Defender Jennifer Patton first appeared on defendant’s behalf in

January 2019 and remained his counsel through the rest of proceedings below. In May 2019, she

informed the trial court that she had a bona fide doubt about defendant’s fitness, so the court

ordered a fitness examination and report. See 725 ILCS 5/104-10 et seq. (West 2018) (prescribing

procedures to determine fitness for trial). After a fitness hearing, the court found defendant unfit

and remanded him to the custody of the Department of Human Services (DHS) for inpatient

treatment to render him fit to stand trial. No appeal was taken from the order finding him unfit.

-2- ¶9 In January 2020, the trial court received a two-page progress report from DHS

pursuant to section 104-18 of the Code of Criminal Procedure of 1963 (725 ILCS 5/104-18 (West

2018)). The report was signed by psychiatrist Gabriel Valdes and social worker Jolene Carter, who

opined on behalf of defendant’s treatment team that he was fit to stand trial. The report described

their clinical findings and defendant’s response to treatment, noting that he was taking olanzapine,

sertraline, and lorazepam as prescribed. Based on this report, the court ordered defendant returned

to the custody of the Peoria County jail. After holding a fitness restoration hearing, the court found

defendant fit to stand trial. The court also ordered an examination into defendant’s sanity at the

time of the offense, but this examination was never completed.

¶ 10 After a number of continuances, defendant’s jury trial began in October 2022.

¶ 11 B. Trial

¶ 12 The following facts are summarized from the testimony and exhibits introduced at

trial.

¶ 13 1. Timeline of Events

¶ 14 On the evening of May 1, 2018, Frank’s neighbor and friend Arkeshia Williams

came to visit him at his house along with some members of Frank’s family, although she could not

remember who was there. Williams testified that Frank was probably drinking because he usually

had a beer or two at night. Williams could not remember when she left.

¶ 15 Frank’s granddaughter Sariah visited his house between 9 and 10 p.m. to take a

shower. Sariah spent approximately 30 minutes at the house and did not see defendant while she

was there. Before she left, she opened Frank’s bedroom door to check on him and saw him alive

and watching TV in his bed. Sariah testified that she was accompanied by either her sister or her

-3- brother on her visit, but she could not remember which. Sariah did not testify whether she locked

the house when she left.

¶ 16 At 8:21 a.m. the following day, a 46-second voicemail message was left on the

phone of the best friend of Frank’s daughter Stacey; the call originated from Frank’s cellphone. A

cybercrimes detective for the Peoria Police Department testified that he was unable to clarify what

was said on the message, which was not played for the jury.

¶ 17 Williams visited Frank’s house sometime between 8 and 9:45 a.m. because she had

lost her phone and wanted to call it from Frank’s phone to find it. She testified that although Frank

had a habit of sitting out on his porch in the morning, she did not see him that day. Williams

knocked on the front door for 5 to 10 minutes and thought she saw movement behind the curtain

in the window of Frank’s bedroom, which was just to the left of the front door. She sat and waited

for another two to three minutes and knocked twice more, but no one came to the door, so she left.

At no point did Williams try to open the door.

¶ 18 2. Stacey’s Testimony

¶ 19 Frank’s daughter Stacey worked as a home care aide for a company that provided

home care services. Stacey had worked for the company for about five years and took Frank on as

a client approximately six to eight months before his death. She worked for him for two hours per

morning, three days per week, cleaning, cooking, and driving him to doctors’ appointments and

the grocery store. Although she only did this work for Frank three days per week, she still saw him

every day.

¶ 20 Stacey testified that Frank had a stroke in 2006 and a heart attack in 2014, used a

cane and walker, and did not drive. He had high blood pressure but was not diabetic and had no

-4- history of seizures. Although Frank sometimes fell down after he had been drinking, it was not a

common occurrence, and she could not remember when it had last happened.

¶ 21 Stacey did not know what time she arrived at Frank’s house on the day he died, but

she was scheduled to work at 10:30 a.m. When she arrived at the house, she could not get in

because she had lost her key. She repeatedly knocked on the front door and Frank’s bedroom

window and shouted to be let in. Between 10:22 and 10:46 a.m., she made 10 phone calls to Frank’s

cell phone. Although she could hear Frank’s phone ringing through his bedroom window, no one

answered. She did not call defendant because she did not have his phone number.

¶ 22 Stacey called her job to ask what she should do since she could not enter the house.

They told her she was required to do a wellness check, meaning she had to call the police to see if

they could get in. After Stacey called 911, Todd Rusk of the Peoria Police Department arrived at

Frank’s house at approximately 11:30 a.m. For 10 minutes, Rusk knocked on all the doors and

windows of the house and yelled to be let inside. Finally, Stacey gave Rusk permission to kick

down the front door, but before he did, defendant opened the door, wearing a blanket around his

shoulders. Stacey and Rusk went inside and found Frank on the floor of his bedroom, unconscious

and barely breathing.

¶ 23 3. Frank’s Injuries

¶ 24 Frank’s face was swollen, and there was a pool of red liquid near his face, possibly

blood or vomit. He was rushed to the emergency room, where he was treated by emergency

physician Frank Dunaway. Dr. Dunaway testified that Frank was nonresponsive on arrival. Dr.

Dunaway put Frank on a ventilator and noted injuries to his left lower jaw, the right side of his

scalp, and one of his fingers. A computed tomography scan revealed that Frank had a subdural

hematoma, subarachnoid hemorrhage, and intraparenchymal hemorrhage in his brain. Dr.

-5- Dunaway testified that these injuries were consistent with a forceful, shearing-type injury, such as

a punch to the head, and they were not consistent with a simple ground-level fall, particularly in

light of Frank’s jaw fracture and loose teeth. Dr. Dunaway also testified that Frank’s injuries were

not consistent with a seizure, stroke, or heart attack. Frank was transferred to the intensive care

unit but died of his injuries on May 7, 2018.

¶ 25 Amanda Youmans, a forensic pathologist, conducted an autopsy the following day.

She confirmed the three levels of hemorrhaging in Frank’s brain and documented bruising on his

torso and swelling and scabbing on his head, as well as a fractured jaw and fractured ribs on the

front and back of his body. According to Dr. Youmans, because Frank had injuries on multiple

planes of his body, his injuries would have required multiple impacts. She opined that the cause

of death was blunt force trauma to the head, neck, and chest.

¶ 26 4. Defendant’s Involvement

¶ 27 Defendant gave conflicting stories to the police. Around 7 or 8 a.m., defendant

either saw or heard Frank walk past defendant’s bedroom. Around 9 or 9:30 a.m., he heard either

one or two thudding sounds from Frank’s bedroom. Around 10:15 a.m., he walked into Frank’s

bedroom and saw him on the floor with the pool of red liquid by his face. Defendant told Rusk that

Frank had seizures all the time and fell quite often. Defendant said he thought the situation was

normal, so he did nothing.

¶ 28 Defendant told the police numerous times that he did not hit his father. Defendant

had no injuries to his hands, no murder weapon was identified, and the DNA evidence was

inconclusive. Defendant also had no established motive.

¶ 29 5. Close of Trial

-6- ¶ 30 At the close of the State’s case, defendant declined to testify or introduce any

evidence. Defendant moved for a directed verdict of not guilty on the grounds that there was

insufficient evidence that he was the person who committed the murder. The trial court denied the

motion, saying, “The evidence is that the doors and windows were locked, and there were two

people in the house. One of them died, apparently from blunt force trauma. It could be inferred

that that means the defendant did it.”

¶ 31 In her closing argument, defense counsel argued to the jury that the State had not

met its burden of proof. Although she primarily emphasized the State’s circumstantial evidence

that defendant was the person who caused Frank’s injuries, she also pointed out that the State was

required to prove all the elements of the offense, as well as any separate factual findings, beyond

a reasonable doubt.

¶ 32 The jury found defendant guilty of first degree murder and made a separate finding

that Frank was 60 years or older at the time of the offense.

¶ 33 C. Posttrial Proceedings

¶ 34 Defendant moved for a new trial or discharge from custody on the basis that the

State failed to prove the elements of the offense beyond a reasonable doubt; the trial court denied

the motion. At sentencing, the court noted no mitigating factors and noted the aggravating factors

of a history of criminal activity and the need to deter others from committing the same crime. The

court noted that defendant’s prospects for rehabilitation were poor, particularly in light of his long

criminal track record at age 43. The court sentenced defendant to 60 years in the Department of

Corrections. Defendant declined to file a motion to reconsider his sentence.

¶ 35 This appeal followed.

¶ 36 II. ANALYSIS

-7- ¶ 37 Defendant argues that (1) the trial court erred by finding he was restored to fitness

before trial, (2) the State’s circumstantial evidence was insufficient to identify him as the person

who committed the murder, (3) his trial counsel was ineffective for allowing the jury to hear two

pieces of improper evidence and for purportedly conceding in her closing argument that defendant

punched his father, and (4) his sentence is excessive. We address each argument in turn.

¶ 38 A. Fitness for Trial

¶ 39 Defendant argues that the trial court erred in finding him restored to fitness before

trial. Because fundamental rights are involved, we may review this issue for plain error. See People

v. Shaw, 2015 IL App (4th) 140106, ¶ 23.

¶ 40 Due process forbids the prosecution of a defendant who is unfit to stand trial;

unfitness means a defendant is unable to understand the nature and purpose of the proceedings

against him or assist in his defense. See People v. Holt, 2014 IL 116989, ¶ 51 (citing Cooper v.

Oklahoma, 517 U.S. 348, 354 (1996)); 725 ILCS 5/104-10 (West 2018). A “trial court’s ruling on

the issue of fitness will be reversed only if it is against the manifest weight of the evidence.” People

v. Haynes, 174 Ill. 2d 204, 226 (1996). Decisions on how the fitness hearing is conducted, however,

can be subject to review under the abuse of discretion standard. People v. Finlaw, 2023 IL App

(4th) 220797, ¶¶ 57-58. For instance, a trial court abuses its discretion by merely “rubber

stamp[ing]” an expert’s conclusion on the issue of fitness rather than exercising its own discretion

and judgment. People v. Gillon, 2016 IL App (4th) 140801, ¶ 21; see People v. Lovelace, 2018 IL

App (4th) 170401, ¶ 33 (noting that a trial court abuses its discretion if it “wholly fails to exercise

its discretion”). Defendant’s argument falls into the latter category, so we review for an abuse of

discretion.

-8- ¶ 41 “[B]ecause the issue of fitness is constitutional in dimension, the record must

affirmatively show that the court’s fitness determination was the product of judicial discretion and

judgment.” Gillon, 2016 IL App (4th) 140801, ¶ 21. The trial court errs by passively accepting the

parties’ stipulation to the fact of fitness as reflected in an expert’s opinion rather than by actively

determining whether the defendant is fit. Id.; People v. Lewis, 103 Ill. 2d 111, 116 (1984). The

trial court may, however, accept the parties’ stipulation as to what the expert would testify. Shaw,

2015 IL App (4th) 140106, ¶ 26. But see id. ¶ 55 (Steigmann, J., specially concurring) (describing

this as a distinction without a difference). “Where the trial court’s determination is based on not

only stipulations, but on the court’s review of a psychological report and the court’s own

observations of the defendant, due process is generally satisfied.” People v. Gipson, 2015 IL App

(1st) 122451, ¶ 30.

¶ 42 Defendant asserts that our analysis differs when we review initial fitness

determinations, where fitness is presumed, and fitness restoration determinations, where unfitness

is presumed. However, this distinction has no bearing on the question of whether the trial court

affirmatively exercised its discretion, an obligation that applies to any fitness determination

irrespective of what presumptions apply. See Gillon, 2016 IL App (4th) 140801, ¶ 21. Moreover,

even if there were such a distinction, Lewis would still govern the outcome in this case because

the supreme court in Lewis was considering a fitness restoration determination. See Lewis, 103 Ill.

2d at 116.

¶ 43 In support of his argument that the trial court failed to affirmatively exercise its

discretion, defendant points to the court’s statement, “I’ll go along with the recommendation of

both lawyers and with the doctor’s finding, and I find [defendant] is fit to stand trial.” Defendant

places too much emphasis on the court’s use of the phrase “go along with,” which in context clearly

-9- does not mean “blindly accept.” At the beginning of the hearing, the State informed the court that

“both the People and the Defense, on behalf of her client, will stipulate to the admissibility of that

report finding that the Defendant is presently fit to stand trial.” (Emphasis added.) The State went

on to say that the parties were submitting the report “for the Court’s consideration on that issue”

and that the defense would be asking for a sanity evaluation “if the Court would find the defendant

fit at the present time.” Defense counsel confirmed that defendant was “stipulating to the January

2nd report” and that “[b]ased on [the court’s] finding, if [defendant] is found fit today,” she would

ask for a sanity examination. She also represented that she no longer had any doubt about

defendant’s fitness. Considering the transcript as a whole, it is clear that the parties were stipulating

to the admissibility of the report and not the ultimate issue of fitness, which they expected the court

to determine. This is exactly what the supreme court has found appropriate. Id. (finding no error

when “[t]he stipulations were not to the fact of fitness, but to the opinion testimony which would

have been given by the psychiatrists”). The trial court considered the parties’ stipulation along

with its review of the psychological report and its observations of defendant, which is sufficient to

satisfy due process. Gipson, 2015 IL App (1st) 122451, ¶ 30. Although defendant argues that the

trial court should have gone further and asked defendant if he had continued to take his medication

over the preceding two weeks, the court was under no obligation to do so. See People v. Goodman,

347 Ill. App. 3d 278, 287 (2004) (“[W]e are aware of no statute or supreme court rule that requires

trial courts to *** independently question a defendant ***.”).

¶ 44 Defendant claims that the record is silent as to whether the trial court actually read

the report, as required. See People v. Cook, 2014 IL App (2d) 130545, ¶ 20 (finding no affirmative

exercise of discretion when nothing in the record indicated that the trial court had ever reviewed

the expert’s report). We disagree. While the court did not explicitly state at the fitness restoration

- 10 - hearing that it had read the report, the two-page report was previously filed of record and

referenced in the court’s order setting the fitness hearing, as well as the subsequent order finding

defendant restored to fitness. This is a sufficient indication that the court read the report because

we presume that a trial court reads documents available to it to make informed decisions. See

Watson v. South Shore Nursing & Rehabilitation Center, LLC, 2012 IL App (1st) 103730, ¶ 54

(“It is generally presumed that a judge will read material in his possession that is cogent to his

decision.”). While it would be wise for trial judges to make clear what they have reviewed and

how it informed their decisions, we decline to impose a pro forma requirement for them to state in

open court that they have read what they were obligated to read. But see Cook, 2014 IL App (2d)

130545, ¶ 20 (noting that such a statement leaves “no ambiguity about the court’s exercise of

discretion”).

¶ 45 Nevertheless, our presumption can be rebutted with affirmative evidence.

Defendant directs our attention to the following exchange on the first day of his trial in October

2022:

“THE COURT: Okay. [Defendant], right now is there anything about your

condition physically that I should know about? ***

THE DEFENDANT: No, sir.

THE COURT: How about mentally?

THE COURT: Are you taking any prescription medications?

THE DEFENDANT: Yes, sir.

THE COURT: Are you taking them as prescribed?

- 11 - THE COURT: What are they?

THE DEFENDANT: Zoloft.”

¶ 46 According to defendant, the trial court must not have read the report in January

2020 because it failed to inquire further about his taking Zoloft instead of olanzapine, sertraline,

and lorazepam, the three drugs mentioned in the report. Initially, we take judicial notice that Zoloft

is the brand name for sertraline, so defendant was continuing to take one of the medications he had

been previously prescribed. Sertraline (Marketed as Zoloft) Information, U.S. Food & Drug

Administration, https://www.fda.gov/drugs/postmarket-drug-safety-information-patients-and-

providers/sertraline-marketed-zoloft-information (last visited Oct. 25, 2023). We may take judicial

notice on appeal of facts that are generally known or readily verifiable from sources of indisputable

accuracy, such as the Food and Drug Administration. See Kramer v. Ruiz, 2021 IL App (5th)

200026, ¶ 32 n.3; see also In re Harlin H., 2022 IL App (5th) 190108, ¶ 8 & nn.4-16 (listing

generic and brand names of various prescription drugs).

¶ 47 Furthermore, while we disagree that a failure to remember three generic drug names

from a report after nearly three years would be probative of a failure to read the report, the trial

court may well have remembered the names of these drugs but declined to mention them because

it could infer from defendant’s answers that (1) he was taking Zoloft/sertraline because it was

prescribed and (2) he was not taking olanzapine, lorazepam, or any other drugs because they were

no longer prescribed. The record simply does not inform us whether defendant was still prescribed

the same medications he was taking nearly three years before. As such, this exchange does not

rebut our presumption that the court read the report before concluding that defendant was restored

to fitness in January 2020.

- 12 - ¶ 48 Defendant points to no other facts that should have raised a bona fide doubt of his

fitness when the trial began in October 2022, other than the fact that he was no longer taking

olanzapine and lorazepam; as noted above, the record does not establish that he was still being

prescribed those medications in October 2022. The fact that defendant was taking one prescribed

medication was not a cause for concern and did not, by itself, necessitate a new fitness hearing.

See People v. Mitchell, 189 Ill. 2d 312, 329 (2000) (“Due process does not require that everyone

taking ‘psychotropic or other medication’ under medical direction should be granted a fitness

hearing.”); see also 725 ILCS 5/104-21(a) (West 2022) (“A defendant who is receiving

psychotropic drugs shall not be presumed to be unfit to stand trial solely by virtue of the receipt of

those drugs or medications.”).

¶ 49 In short, the trial court properly exercised its discretion in finding defendant fit to

stand trial in January 2020 and did not err in October 2022 by proceeding to try a defendant who

stated he was taking his medication as prescribed and showed no signs of unfitness.

¶ 50 B. Sufficiency of the Evidence

¶ 51 Defendant argues that we should reverse his conviction outright because there was

insufficient evidence showing that he was the person who committed the murder. “The due process

clause of the fourteenth amendment to the United States Constitution safeguards an accused from

conviction in state court except upon proof beyond a reasonable doubt of every fact necessary to

constitute the crime charged.” People v. Brown, 2013 IL 114196, ¶ 48 (citing Jackson v. Virginia,

443 U.S. 307, 314-15 (1979)). In particular, “[t]he State bears the burden of proving beyond a

reasonable doubt the identity of the person who committed the charged offense.” People v. Lewis,

165 Ill. 2d 305, 356 (1995). When considering a challenge to the sufficiency of the evidence, the

relevant question is whether, after viewing the evidence in the light most favorable to the State,

- 13 - any rational trier of fact could find the essential elements of the offense beyond a reasonable doubt.

Brown, 2013 IL 114196, ¶ 48 (citing Jackson, 443 U.S. at 314-15). We allow all reasonable

inferences in favor of the State and will not reverse unless the evidence is so unsatisfactory or

improbable that it creates a reasonable doubt as to the defendant’s guilt. People v. Givens, 237 Ill.

2d 311, 334 (2010). Although defendant argues that the State’s case was bolstered by improper

evidence, we consider all evidence introduced at trial, properly admitted or not, when deciding

whether to reverse outright. People v. Thompson, 2017 IL App (3d) 160503, ¶ 17.

¶ 52 Defendant concedes that Frank was murdered, but he argues that the State’s proof

of his responsibility was entirely circumstantial due to the lack of eyewitness testimony, a

confession, forensic evidence, or a theory of motive. “It is well settled, however, that the identity

of the accused may be established by circumstantial evidence.” People v. Darrah, 18 Ill. App. 3d

1018, 1022 (1974). Moreover, we apply the same test for sufficiency of the evidence whether the

evidence is direct or circumstantial; we no longer require that a conviction based on circumstantial

evidence be inconsistent with any reasonable hypothesis of innocence. People v. Walker, 2020 IL

App (4th) 180774, ¶ 79; see Jackson, 443 U.S. at 326 (holding that this is not the constitutional

standard). “The sole limitation on the use of circumstantial evidence is that the inferences drawn

therefrom must be reasonable.” People v. Grathler, 368 Ill. App. 3d 802, 808 (2006); see People

v. Davis, 278 Ill. App. 3d 532, 540 (1996) (contrasting reasonable inferences with “mere

speculation”).

¶ 53 Here, the heart of the State’s case was that defendant must have committed the

murder because he was alone with Frank in a locked house when the murder was committed.

Defendant is correct that “[o]pportunity alone *** is not sufficient to sustain a conviction unless

the State can prove beyond a reasonable doubt that no one else had the opportunity to commit the

- 14 - crime.” People v. Dowaliby, 221 Ill. App. 3d 788, 797 (1991). However, it is unclear whether this

principle retains its vitality in light of the supreme court’s abandonment of the reasonable

hypothesis of innocence standard. See People v. McCullough, 2015 IL App (2d) 121364, ¶ 98.

Assuming without deciding that this principle does apply, we find that a rational jury could

conclude beyond a reasonable doubt that defendant and no one else had the opportunity to commit

the crime. See id. ¶¶ 98-99 (considering Dowaliby despite noting the abandonment of the

reasonable hypothesis of innocence standard).

¶ 54 According to the testimony received, the house was locked when Stacey arrived at

10:22 a.m.; when Stacey and Rusk finally entered the house shortly before noon, there was no

apparent evidence of a break-in, and no one was found inside except defendant and Frank. Based

on Frank’s cell phone log, the jury could conclude that he was attacked between 8:22 a.m., when

he was able to make a call, and 10:22 a.m., when he was not able to answer Stacey’s first call. The

jury could reasonably infer from these facts that the house was locked during this two-hour time

frame and that defendant was the only person who could have attacked Frank. In contrast, an

alternative scenario where an unknown assailant entered the house, attacked Frank for no apparent

reason, and escaped without being noticed is not a reasonable inference, but rests on mere

speculation. Contra Davis, 278 Ill. App. 3d at 541 (finding circumstantial evidence of defendant’s

identity insufficient when the State “produced no evidence of any kind that placed [the defendant]

in, at or near the *** home when [the victim] was killed”). The jury “[wa]s not required to ***

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

reasonable doubt.” People v. Jackson, 232 Ill. 2d 246, 281 (2009). Instead, the question is if any

rational jury could conclude that there was no such unknown assailant, and the answer is yes.

- 15 - ¶ 55 Finally, while the State was not required to rule out every reasonable hypothesis of

innocence, we nevertheless find that the State did so here by showing that Frank’s injuries could

not have been accidental or self-inflicted. The evidence, examined in the light most favorable to

the State, showed that Frank’s injuries could not have been caused by a stroke, seizure, diabetic

shock, or simple fall. Moreover, Frank’s autopsy showed severe blunt force trauma all over his

body, including broken ribs in his back. A rational jury could certainly infer that these severe

injuries were not self-inflicted. Contra Mooney v. People, 111 Ill. 388, 395 (1884) (per curiam)

(finding circumstantial evidence unsatisfactory when medical testimony showed that all 33 of

victim’s knife wounds could have been self-inflicted).

¶ 56 Because a rational jury could conclude that Frank’s fatal injuries were not

accidental or self-inflicted and that defendant was the only person with the opportunity to inflict

them, the evidence introduced at trial was sufficient to sustain defendant’s conviction for first

degree murder.

¶ 57 C. Ineffective Assistance of Counsel

¶ 58 Defendant contends that his trial counsel was ineffective for allowing the jury to

hear two key pieces of improper evidence and for purportedly conceding in her closing argument

that defendant punched Frank. Although this claim was not raised in a posttrial motion, we may

consider it on direct appeal because defendant was represented by trial counsel during posttrial

proceedings and “trial counsel’s failure to assert [her] own ineffective representation in a posttrial

motion does not [forfeit] the issue on appeal.” People v. Lawton, 212 Ill. 2d 285, 296 (2004).

¶ 59 This court analyzes claims of ineffective assistance of counsel under the

two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984). See, e.g., People v.

- 16 - Merriweather, 2022 IL App (4th) 210498, ¶ 40. Under Strickland, the defendant has the burden of

showing both deficient performance and prejudice.

¶ 60 To satisfy the deficiency prong, “the defendant must prove that counsel made errors

so serious, and that counsel’s performance was so deficient, that counsel was not functioning as

the ‘counsel’ guaranteed by the sixth amendment.” People v. Evans, 186 Ill. 2d 83, 93 (1999).

Furthermore, “the defendant must overcome the strong presumption that counsel’s action or

inaction was the result of sound trial strategy.” People v. Ramsey, 239 Ill. 2d 342, 433 (2010). We

apply this deferential standard because “[t]here are countless ways to provide effective assistance

in any given case,” and “[e]ven the best criminal defense attorneys would not defend a particular

client in the same way.” Strickland, 466 U.S. at 689. “As a result, counsel’s strategic choices that

are made after investigation of the law and the facts are virtually unassailable.” Ramsey, 239 Ill.

2d at 433.

¶ 61 To satisfy the prejudice prong, “[t]he defendant must prove that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Evans, 186 Ill. 2d at 93. A “reasonable probability” is a probability

sufficient to undermine confidence in the outcome of the trial. People v. Houston, 229 Ill. 2d 1, 4

(2008).

¶ 62 When a defendant raises a claim of ineffective assistance of counsel for the first

time on appeal, our review is de novo. Merriweather, 2022 IL App (4th) 210498, ¶ 40. Because a

defendant must satisfy both prongs to prevail, we need not “address both [prongs] of the inquiry if

the defendant makes an insufficient showing on one.” Strickland, 466 U.S. at 697; Evans, 186 Ill.

2d at 94. With this in mind, we consider defendant’s contentions according to the analysis specified

by Strickland.

- 17 - ¶ 63 1. Evidence of Defendant’s Time in Prison

¶ 64 Ten months before Frank’s death, defendant was released on parole after spending

eight and a half years in the Department of Corrections for unlawful delivery of a controlled

substance. During cross-examination by defense counsel, Stacey interjected defendant’s past

incarceration as follows:

“[DEFENSE COUNSEL:] And you said that you thought you probably had

been working that job for [Frank] for maybe six to eight months prior to May,

correct?

[STACEY RUNYON:] Yeah, I’m not really sure. That was a long time ago.

Q. Okay.

A. I know I worked for them for, like, five years.

Q. In that time frame had your brother, [defendant], lived there that whole

time with your dad?

A. Not the whole time. [Defendant] was in jail.

Q. Okay. But he had lived there in the months preceding your dad—

A. Yes.

Q. —correct? Okay. And you said your dad had had a stroke in 2006. To

your recollection had he had any other strokes?”

Defense counsel asked several more questions, and the State asked one brief question on redirect

examination. After Stacey concluded her testimony, the trial court directed the jury to leave the

courtroom and held a sidebar with counsel about Stacey’s remark that defendant had been in jail.

¶ 65 We pause to point out a key problem with defendant’s assertion that counsel erred

by “allowing the jury to hear” this testimony, which was likely inadmissible. See People v.

- 18 - Thingvold, 145 Ill. 2d 441, 452 (1991) (noting that evidence of prior criminal activity is generally

inadmissible because it “overpersuades the jury, which might convict the defendant only because

it feels he is a bad person deserving punishment”). A defendant-appellant claiming that counsel’s

performance was deficient must identify some action or inaction by counsel; dissatisfaction with

events beyond counsel’s control is not a basis for finding counsel ineffective. See Ramsey, 239 Ill.

2d at 433 (stating the deficiency prong applies to “counsel’s action or inaction”). When

cross-examining a witness, counsel’s control over what testimony the jury hears is determined by

the questions she asks, and a nonresponsive answer, by definition, goes beyond those questions

and thus beyond counsel’s control. See People v. White, 2011 IL App (1st) 092852, ¶ 74

(explaining that defense counsel does not “elicit” nonresponsive testimony). Absent some showing

that counsel’s questioning of the witness reflected deficient performance, we cannot fault counsel

for “allowing” the jury to hear a nonresponsive answer. In the present case, counsel asked Stacey

a yes-or-no question, and Stacey volunteered information about defendant’s criminal past.

Defendant does not allege that counsel’s question was improper, so we adhere to the strong

presumption that it was “within the wide range of reasonable professional assistance.” Strickland,

466 U.S. at 689.

¶ 66 When counsel’s questioning is not deficient, we may still examine counsel’s

reaction to a nonresponsive answer. For instance, this court found an attorney’s performance

deficient when she failed to move to strike a nonresponsive answer and instead “continued

questioning the witness, digging the hole deeper, [and] eliciting damaging testimony not presented

as part of the State’s case.” People v. Bailey, 374 Ill. App. 3d 608, 614 (2007). In that case, “[w]e

[could not] find a valid trial strategy in [her] pursuit of this line of questioning.” Id.

- 19 - ¶ 67 Here, a motion to strike the nonresponsive answer and a curative instruction would

likely have been legally justified. See People v. Fritz, 84 Ill. 2d 72, 80 (1981) (“It is the duty of

the court to strike nonresponsive answers to questions, when a proper motion to do so is made.”);

Illinois Pattern Jury Instructions, Criminal, No. 1.01[8] (approved Apr. 30, 2021) (instructing jury

to “disregard testimony *** which the court has refused or stricken.”). However, it can also be a

valid trial strategy to forgo a motion to strike inadmissible testimony (People v. White, 2011 IL

App (1st) 092852, ¶ 75) or to decline to seek a curative instruction (see People v. Peel, 2018 IL

App (4th) 160100, ¶ 52) to avoid drawing attention to unfavorable information.

¶ 68 At the sidebar in this case, the trial court offered to admonish the jury to disregard

Stacey’s improper testimony. Defendant argues that counsel’s decision to decline this offer was

objectively unreasonable. We need not conjecture why counsel declined to seek such an

admonishment, because she explained her reasoning to the trial court:

“[DEFENSE COUNSEL]: I think it was nonresponse. I don’t think [Stacey]

was intending to do anything. And I did, I just moved on because I did not want to

draw attention to it. I think that now even if we were to make admonishments to

the jury, we would be drawing attention to it. I discussed it with my client. I told

him that I could ask for a mistrial. I don’t think that’s a good idea at this point, and

we don’t think that it’s that detrimental to cause an issue with his representation or

with the jury’s view of him. And I mean it was very fast and moved on. Here is the

deal. They don’t know if he was in prison, if he was in jail for the night. It’s just an

open-ended thing. And I don’t think that anywhere in my argument or [the State’s]

argument it would ever be argued that this was somebody that was in jail and he

- 20 - was a danger. So at this time, I don’t think—I’m not concerned with it. I think I

moved on with it and did not draw attention to it, and we are satisfied with that.”

¶ 69 The decision to avoid drawing attention to unfavorable information is well

established as reasonable trial strategy. People v. Evans, 209 Ill. 2d 194, 221 (2004) (finding no

deficient performance when “defense counsel allowed the statement [referencing other crimes] to

pass without objecting to diffuse its importance, rather than object and draw further attention to

the statement”); accord Milner v. State, 271 Ga. 578, 578 (1999) (“Trial counsel’s decision not to

object to a reference that [the defendant] had been in jail was a reasonable trial strategy since he

did not want to call the jury’s attention to that fact ***.”); see United States v. Myers, 917 F.2d

1008, 1010 (7th Cir. 1990) (noting that reasonable minds may differ about whether a cautionary

instruction would do more harm than good). Accordingly, defense counsel’s decision not to seek

an admonishment, made after reflection and discussion with her client, the trial court, and opposing

counsel, was a reasonable trial strategy and thus not deficient under Strickland.

¶ 70 2. Evidence of Defendant’s Mental Illness

¶ 71 During Rusk’s testimony, the State played a recording of Stacey’s 911 call, in

which she referred to defendant as “bipolar.” Defendant claims that counsel should have prevented

the jury from hearing this evidence, which he states was prejudicial. Here again, defendant is not

truly arguing deficiency because it is unclear what defendant believes counsel should have done

differently.

¶ 72 First, as the State points out, defendant does not cite any authority for the

proposition that evidence of a defendant’s bipolar disorder is prejudicial. Even then, “all evidence

is prejudicial in that it is intended to impact the fact finder’s decision.” People v. Gordon, 2017 IL

App (3d) 140770, ¶ 25. If counsel’s only objection to the admission of this evidence was that it

- 21 - was prejudicial, then the jury would have heard it over counsel’s objection. See People v. Bradford,

2019 IL App (4th) 170148, ¶ 14 (“It is axiomatic that a defense counsel will not be deemed

ineffective for failing to make a futile objection.”).

¶ 73 Even if we assume an objection would have been sustained, defendant still fails to

explain why forgoing an objection was a poor strategic decision. See People v. Pecoraro, 144 Ill.

2d 1, 13 (1991) (noting the general rule that a failure to object to testimony does not establish

incompetent representation). Given that the State relied on defendant’s unusual behavior as

evidence of a guilty conscience, counsel may well have decided that a fleeting reference to mental

illness could undermine the State’s case without requiring him to produce evidence. In any event,

defendant’s conclusory argument has not rebutted our “strong presumption that counsel’s conduct

falls within the wide range of reasonable professional assistance,” so we find that counsel was not

deficient for failing to object to the admission of this statement. Strickland, 466 U.S. at 689.

¶ 74 3. Closing Argument

¶ 75 During closing argument, defense counsel’s primary focus was that the State failed

to meet its burden of proof regarding defendant’s identity. When concluding her argument, she

also addressed the other elements of the offense, again emphasizing the State’s burden of proof:

“[DEFENSE COUNSEL]: Now I wouldn’t be doing my job if I didn’t take

it a step further with you. Let’s say you believe the State does pass scrutiny, that

[defendant] is the one that caused these injuries. The jury instruction that you are

going to get is that there is two propositions that they have to prove, the State has

to prove. That the defendant performed the acts which caused the death of Frank

Runyon. So say you believe that, yes, they did believe that. The second proposition

- 22 - is that when the defendant did so he knew those acts created a strong probability of

death or great bodily harm to Frank Runyon.

Again—and we have testimony that it took great force, although nobody

can put a number on that. Okay? Personally, I mean, does that mean that he

slammed his head into that dresser? Does he mean he slammed his head on the

floor? Does it mean that he punched him? What exactly are they alleging? I don’t

know. But then you have to go back. If it’s—if they are alleging that he hit him

somehow, and that’s what they want you to believe, then is it—did they prove

beyond a reasonable doubt that [defendant] would have known that punching

someone would cause that death? I don’t know that they would. I think if you shoot

someone, you can make a pretty good guess that you are going to cause great bodily

harm or possibly death. If you stab someone, could probably make those

assumptions as well. But punching someone, people fight all the time. I don’t know

that that puts you at the level of did that person know that they could cause death

or great bodily harm that would cause death.”

¶ 76 Defendant claims that this argument constitutes an improper concession that he

punched Frank. This claim constitutes an unfair mischaracterization of counsel’s closing argument,

which was clearly couched in hypothetical terms. Furthermore, counsel correctly informed the jury

that they were required to acquit defendant if they found that he had punched Frank but had a

reasonable doubt that defendant knew punching Frank “create[d] a strong probability of death or

great bodily harm,” a necessary element of the offense as charged. See 720 ILCS 5/9-1(a)(2) (West

2018). As noted in our discussion of the sufficiency of the evidence, the State was required to

prove each element of the offense beyond a reasonable doubt, and a key aspect of defense counsel’s

- 23 - role under the sixth amendment is to hold the State to that burden. See United States v. Cronic,

466 U.S. 648, 656 n.19 (1984) (“[W]hen no theory of defense is available, if the decision to stand

trial has been made, counsel must hold the prosecution to its heavy burden of proof beyond [a]

reasonable doubt.”). While this particular avenue for acquittal was not central to counsel’s closing

argument, her decision to emphasize the State’s burden of proof on every element of the offense

was not only not deficient under Strickland—it was strategically sound.

¶ 77 Because defendant has not satisfied his burden of showing that any of defense

counsel’s decisions were deficient under Strickland, we find that he was not denied the effective

assistance of counsel guaranteed by the sixth amendment (U.S. Const., amend. VI).

¶ 78 D. Excessive Sentence

¶ 79 Defendant argues that his 60-year sentence is excessive because it is more than

three times the mandatory minimum and constitutes a de facto life sentence, given that he is likely

to die before he is eligible for release at age 98. Defendant concedes that his excessive-sentence

claim was not raised in a postsentencing motion and thus can only be reviewed for plain error.

Before addressing plain error, we consider whether the trial court erred at all. See Merriweather,

2022 IL App (4th) 210498, ¶ 37 (“Since we have found no error, we need not address plain error.”).

¶ 80 First, “de facto life sentence” is a term of art that refers to a sentence of 40 years or

more imposed on a defendant who was a juvenile at the time of the offense. People v. Buffer, 2019

IL 122327, ¶ 41. In certain circumstances, a de facto life sentence is unconstitutional because it

denies the juvenile offender “ ‘some meaningful opportunity to obtain release based on

demonstrated maturity and rehabilitation.’ ” Id. (quoting Miller v. Alabama, 567 U.S. 460, 479

(2012)). In the present case, defendant is likely to spend the rest of his life in prison, but he was

not a juvenile at the time of the offense, so neither Miller’s holding nor its rationale apply here.

- 24 - See People v. Harris, 2018 IL 121932, ¶ 61 (declining to extend Miller to offenders 18 or older);

People v. Kruger, 2021 IL App (4th) 190687, ¶ 32 (noting the possibility of Miller-based claims

by offenders between 18 and 20). Instead, we analyze defendant’s excessive-sentence claim under

the usual framework for nonjuvenile offenders. See, e.g., People v. Green, 2020 IL App (5th)

170462, ¶¶ 37-43 (finding that a 60-year sentence was not excessive for a 22-year-old offender).

¶ 81 A sentence within the statutory limits prescribed by the legislature carries with it a

presumption of validity and will only be reversed when the trial court abused its discretion. People

v. Musgrave, 2019 IL App (4th) 170106, ¶ 56. A trial court abuses its discretion when its sentence

is manifestly disproportionate to the seriousness of the offense or greatly at variance with the spirit

and purpose of the law. People v. Fern, 189 Ill. 2d 48, 54 (1999). When reviewing a sentence for

excessiveness, we do not substitute our judgment for the trial court’s merely because we might

have weighed the sentencing factors differently. People v. Klein, 2022 IL App (4th) 200599, ¶ 37.

¶ 82 Defendant argues that the trial court abused its discretion in sentencing him to what

is effectively a life sentence because he has a mental disability, no prior violent felony convictions,

and no history of violence. It is clear from the record that the court was aware of these factors

because it heard defense counsel’s arguments at the sentencing hearing regarding defendant’s

mental illness, lack of violent criminal history, and the fact that he was likely to die in prison. See

730 ILCS 5/5-4-1(a)(5), (b) (West 2022) (stating a trial court must consider parties’ arguments

when imposing sentence). Defendant invites us to reweigh these factors, which is beyond our role

on appeal. Klein, 2022 IL App (4th) 200599, ¶ 37. Even then, the seriousness of the offense is the

most important factor; the trial court does not abuse its discretion by assigning greater weight to

the severity of the offense than to mitigating factors. People v. Aquisto, 2022 IL App (4th) 200081,

¶ 112. There is perhaps no offense more serious under Illinois law than first degree murder (see

- 25 - 730 ILCS 5/5-4.5-20 (West 2022)), and the facts of this case are especially serious. Aquisto, 2022

IL App (4th) 200081, ¶ 112 (considering “the particular facts and circumstances of the defendant’s

offense”).

¶ 83 Frank was 74 years old and walked with a cane. He had multiple, serious medical

problems and required home health care services to meet his basic needs. He was attacked by his

own son in his own home, either unable or unwilling to defend himself. Frank was beaten multiple

times across his chest, neck, and head, and his injuries included a broken jaw, broken ribs, and

severe bleeding in three layers of his brain. He suffered from these injuries for days before he died.

A mid-range, 60-year sentence was not manifestly disproportionate to the seriousness of this

offense.

¶ 84 III. CONCLUSION

¶ 85 For the reasons stated, we affirm the trial court’s judgment.

¶ 86 Affirmed.

- 26 -