NOTICE FILED This Order was filed under Supreme Court Rule 23 and is 2022 IL App (4th) 160882-UB May 2, 2022 not precedent except in the Carla Bender limited circumstances allowed NO. 4-16-0882 4th District Appellate under Rule 23(e)(1). Court, IL IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Champaign County HAYZE L. SCHOONOVER, ) No. 15CF1388 Defendant-Appellant. ) ) Honorable ) Thomas J. Difanis, ) Judge Presiding. ______________________________________________________________________________
JUSTICE HARRIS delivered the judgment of the court. Justices DeArmond and Turner concurred in the judgment.
ORDER
¶1 Held: (1) Defendant failed to establish that his defense counsel provided ineffective assistance.
(2) The trial court did not abuse its discretion at sentencing.
¶2 Following a jury trial, defendant, Hayze L. Schoonover, was found guilty of three
counts of predatory criminal sexual assault of a child (720 ILCS 5/11-1.40(a)(1) (West 2014)) and
sentenced to two 35-year terms and one 15-year term of imprisonment. Defendant appealed his
convictions and sentences, arguing (1) the trial court violated his right to a public trial by barring
members of his family from the courtroom during the minor victim’s trial testimony, (2) his
defense counsel provided ineffective assistance, and (3) the court abused its discretion during
sentencing.
¶3 In April 2019, a majority of a panel of this court found the trial court failed to comply with section 115-11 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS
5/115-11 (West 2014))—which permits limited courtroom closures during the testimony of minor
victims of certain sex crimes—and violated defendant’s right to a public trial. See People v.
Schoonover, 2019 IL App (4th) 160882, ¶ 45, 158 N.E.3d 253. We reversed and remanded for a
new trial on that basis without addressing the remaining issues raised by defendant on appeal. Id.
¶¶ 45, 56. The State petitioned for and was granted leave to appeal. In December 2021, the supreme
court reversed, finding no clear or obvious error under section 115-11 of the Code or of defendant’s
right to a public trial. People v. Schoonover, 2021 IL 124832, ¶ 54. It remanded the matter back to
this court to address defendant’s remaining claims of error. Id. ¶ 52. We now affirm the trial court’s
judgment.
¶4 I. BACKGROUND
¶5 In September 2015, the State charged defendant with four counts of predatory
criminal sexual assault of his niece, M.L. 720 ILCS 5/11-1.40(a)(1) (West 2014). Specifically, it
alleged that defendant, who was over the age of 17, committed “act[s] of contact” with M.L., who
was under the age of 13, for the purpose of defendant’s sexual gratification, in that defendant
touched M.L.’s vagina with his hand (count I), touched M.L.’s breasts with his hand (count II),
placed his penis in M.L.’s mouth (count III), and placed his penis in M.L.’s hand (count IV).
¶6 Prior to defendant’s trial, the State moved, pursuant to section 115-10 of the Code
(725 ILCS 5/115-10 (West 2014)), to admit statements M.L. made to family members and police
officers about the alleged sexual assaults, as well as a recording of an interview with M.L. at the
Child Advocacy Center (CAC). The trial court allowed the motion over defendant’s objection.
¶7 Defendant also filed various pretrial motions, including a motion in limine to bar
the State from presenting evidence of statements M.L. made to her minor cousin, A.G., about the
-2- alleged offenses. In response to the motion, the State asserted A.G. would not be called to testify
but she would “be mentioned because she was the trigger that brought [the alleged offenses] to the
family’s attention[.]” It represented, however, that it did not intend to talk about “specific
statements” M.L. made to A.G. The trial court ruled the State would be permitted to present
evidence that a conversation occurred between M.L. and A.G., but not its content.
¶8 In August 2016, defendant’s jury trial was conducted. Evidence showed M.L. was
born in October 2002, and 13 years old at the time of trial. She testified defendant was married to
her maternal aunt, Sarita Taylor, and the couple had two children. When M.L. was 10 or 11 years
old, she would spend the night at defendant and Sarita’s house. She would stay up late watching
movies with defendant after everyone else went to bed. When M.L. was 12 years old, defendant
began talking to her about “sex things.” He also showed M.L. videos on his computer of people
“doing sexual stuff.” M.L. recalled that defendant asked her to go into the bathroom, take her
clothes off, and take pictures of her “private areas” with his phone.
¶9 M.L. stated that on two or three occasions, defendant “did touch [her] down there.”
She recalled one instance when defendant put on a blue “doctor’s glove” and touched her vagina,
indicating that his intention “was to identify what everything was down there.” On another
occasion, defendant “made [M.L.] put his penis in [her] mouth.” M.L. asserted defendant called
her into his bedroom and, when she entered the room, defendant “was laying on the bed with his
penis out.” At defendant’s request, M.L. put his penis in her mouth. M.L. testified defendant “had
a tattoo down by his penis.” She provided a description of the tattoo, including its design, coloring,
and location. M.L. also identified photographs of the tattoo. The record shows defendant stipulated
that the photographs shown to M.L. were of his body. The photographs were admitted into
evidence and shown to the jury.
-3- ¶ 10 M.L. estimated that defendant asked her to put his penis in her mouth three or four
times during the span of a year. Further, she asserted that on more than three or four occasions,
defendant made her touch his penis with her hand. M.L. denied that defendant ever touched her
breasts.
¶ 11 M.L. maintained that when she was alone with defendant, there were times he
offered her “weed.” She stated, “a couple of times,” she “smoked weed” with defendant using a
“pipe” in the kitchen or the garage. Defendant also gave M.L. alcohol to drink. Specifically, she
stated she was given “something with whiskey” and a drink that she believed was called “Twisted
Apple Ale.”
¶ 12 M.L. further testified that defendant cautioned her not to tell anybody about what
happened between them. Defendant told her “he could get in very big trouble.” He also threatened
to kill M.L., stating that telling someone “would cause [sic] [M.L.] her life.” Eventually, M.L. told
her cousin, A.G., what had happened with defendant. Later, she also disclosed what happened with
defendant to other family members while at her grandfather’s house. M.L. stated her family
questioned her about what occurred with defendant but she did not recall the specific questions
she was asked. Approximately a week after she disclosed information to her family, M.L. spoke
with a woman at the CAC.
¶ 13 The State’s evidence showed M.L.’s disclosures at her grandfather’s residence
occurred in September 2015. Cashonna Berger testified that M.L. was her niece and A.G. was her
daughter. Around September 10, 2015, Cashonna had a conversation in her car with A.G., who
was then 13, about M.L. Following that conversation, Cashonna contacted William Taylor, her
father and M.L.’s grandfather, and told him “it would be a good idea to have a conversation with”
M.L. and M.L.’s mother, Caitlin Taylor. On September 13, 2015, the family members met at
-4- William’s residence. Initially present at the meeting were William, Caitlin, M.L., Cashonna, and
A.G. Later, Sarita also arrived at the residence.
¶ 14 Each adult present at the family meeting testified and described what occurred
during the meeting. Evidence showed William began the conversation with M.L. by stating there
were cameras in Sarita and defendant’s house. William testified he asked M.L. if there was
anything she needed to talk to him about and maintained that he asked M.L. open ended questions
in an effort to obtain information. He stated M.L. reported “that there had been some touching
going on.” She also admitted “that there was some oral sex involved.” William stated that during
their conversation, M.L. “broke into tears” and “got really upset.”
¶ 15 Cashonna recalled that during questioning by William, M.L. admitted that
defendant had touched her. She testified M.L. also described an instance when she performed oral
sex on defendant while she sat in a desk chair in front of a computer and defendant stood in front
of her. M.L. reported that during that incident, “something landed on her face.” Caitlin testified
M.L. “admitted that [defendant] touched her” and reported that defendant “put his private areas in
her mouth.”
¶ 16 After Sarita arrived at William’s residence, she spoke with M.L. and asked, “ ‘[i]s
there anything about [defendant] that is identifiable’ ” and “ ‘is there any marks.’ ” Sarita
maintained she did not say or volunteer the word “tattoo.” M.L. responded to her questions by
mentioning the tattoo on defendant’s pubic area, which she then described. Following that
conversation, Sarita recommended that her family call the police.
¶ 17 Around 6:45 p.m. on the day of the family meeting, police officers arrived at
William’s residence. Officer Michael Martinez testified he responded to the residence and spoke
with M.L., asking “if she could elaborate on some of the statements that she made to her
-5- grandfather.” According to Martinez, M.L. disclosed that defendant had touched her
approximately two times “underneath her garments” and “on her vagina.” M.L. further reported
that she had “been forced to perform oral sex on three occasions, and had been forced to touch
[defendant’s] penis once.” Martinez testified that when talking about the alleged sexual acts, M.L.
“was visibly shaken and trembling, [and] crying at times.”
¶ 18 Officer Ryan Umberger testified that on September 14, 2015, the day after the
family meeting, he returned to William’s residence. His purpose was to speak to M.L. about “any
identifying marks” on defendant. Umberger stated he specifically asked M.L. if defendant “had
any identifying marks that she could describe to [him].” M.L. responded that defendant “had a
tattoo on his penis area.” She also provided descriptions of what the tattoo looked like and its
specific location.
¶ 19 Mary Bunyard testified she was a child forensic interviewer for the CAC. On
September 25, 2015, she interviewed M.L. A recording of the interview was admitted into
evidence and played for the jury. During the interview, M.L. stated she was then 12 years old. She
and Bunyard initially discussed topics unrelated to the alleged offenses, including M.L.’s family
and her school-related activities. M.L. stated she was “not doing so well in school right now
because of the issues.” She stated she knew she could do better but “[i]t’s just really hard with all
the people that bully me and the issues I’m going through with old friends.” M.L. agreed with
Bunyard that there could be “girl drama” in middle school.
¶ 20 Regarding the alleged offenses, M.L. stated it was her understanding she was being
interviewed because defendant, who was her uncle, “was being very nasty to [her].” She described
events that occurred when she would spend the night at defendant’s house when she was 11 and
12 years old. She stated defendant began by talking to her about sexual things. M.L. reported
-6- instances when defendant showed her videos of people having sex on his computer. She also stated
that he had her take pictures of herself in the bathroom without clothing using his phone. M.L.
recalled one instance when defendant made her lay down on the kitchen floor without clothing,
stating he was “going to look at [M.L.] and tell [her] what everything is.” M.L. reported that
defendant touched her “private,” meaning her vagina. She stated he also touched her “boobs.” On
another occasion, defendant touched the outside of her “private part” while wearing gloves. M.L.
stated there were three occasions when defendant had her put her mouth on his penis. The incidents
occurred at night while other adults in the house were sleeping or at work.
¶ 21 M.L. also told Bunyard that there were times defendant gave her “apple ale” to
drink and a “pipe with weed in it” to smoke. She stated defendant talked with her about “sex toys”
that he used with M.L.’s aunt and that he showed a “sex toy” to her. M.L. further reported that
defendant threatened to kill her if she told anyone about what was happening. Nevertheless, M.L.
ultimately talked with her cousin about defendant. When Bunyard asked M.L. if there was anything
“descriptive” about defendant, M.L. responded “his penis.” She then described the tattoo he had
on his pubic area.
¶ 22 The record reflects that during defense counsel’s cross-examination of Cashonna,
she acknowledged that she was the one who started the conversation with A.G., which prompted
the family meeting with M.L. Defense counsel then asked Cashonna whether it was correct that
“nothing [A.G.] described involved [M.L.] or [defendant] having physical contact.” The State
objected to “anything [A.G.] said,” noting her statements had been the subject of one of
defendant’s pretrial motions in limine. The trial court overruled the objection, stating defense
counsel “may ask if he wants.” Counsel then elicited testimony from Cashonna that A.G. did not
report anything “specific about physical contact between [defendant] and [M.L.] that day[.]”
-7- ¶ 23 On redirect examination, Cashonna testified that her conversation in the car with
A.G. was prompted by her husband’s “concern” that “something seemed a little off” with
defendant’s relationship with M.L. Cashonna testified she then spoke with A.G., who reported an
occasion when defendant followed her into the bathroom and talked to her about sex and sex toys
and “he brought out sex toys” that he showed to A.G. Defense counsel objected on the basis of
“speculation,” and the State responded that defense counsel had opened the door with his
questioning of the witness. The trial court overruled the objection. The following colloquy then
occurred:
“Q. Based on that, why did you decide to have a meeting with [M.L.]?
A. Because then after [A.G.] had explained that to me, I had asked her if
[M.L.] had ever told her anything that we needed to be concerned about with her—
with her relationship between [M.L.] and [defendant].
MR. ALLEGRETTI [(DEFENSE ATTORNEY)]: Objection, Judge;
hearsay.
MR. LARSON [(ASSISTANT STATE’S ATTORNEY)]: He has once
again opened the door to this, Your Honor.
THE COURT: Mr. Allegretti, you asked a question about this conversation.
I will allow redirect on it.
MR. LARSON: Thank you, Your Honor.
Q. I’m sorry. If you—so after your daughter told you about the incident with
the sex toy, and then you asked her about [M.L.], what did she say to you?
A. She said that it would be a good idea to speak with [M.L.] because she
believed that much more had happened between [defendant] and [M.L.]”
-8- ¶ 24 At trial, Sarita further testified that she had been married to defendant for eight
years. In August or early September 2015, she filed for divorce. Sarita confirmed that in 2014 and
2015, M.L. would often spend the night at her and defendant’s home. Sarita estimated that M.L.
stayed at her home once or twice a month. On some of the nights M.L. was there, Sarita was at
work. Other times, Sarita and her children would go to bed while defendant and M.L. stayed up
watching television. At the time, defendant, who was born on December 14, 1986, would have
been about 28 years old.
¶ 25 Sarita acknowledged that she and defendant had cameras in their home. They also
kept alcohol, including “Canadian Superior whiskey” and “apple ale,” and defendant had
marijuana with multiple “pipes” that he used. Over defense counsel’s relevance objection, Sarita
was permitted to testify about, and describe, “sex toys” that defendant purchased and had in the
home. Further, she testified that while she was living with defendant, he got a tattoo on his “pubic
area.” Sarita also identified photographs depicting that tattoo.
¶ 26 Sarita testified there were times defendant showed her pornography, some of which
was from the internet and on his computer. The same day as the family meeting, she checked the
computer in her house because M.L. mentioned there was a file on the computer “that had a
password and pictures.” Sarita stated she found a file she could not open. Later, she showed the
police the file and gave them the computer. The State’s evidence showed the computer was
analyzed by the police and a file was found that could not be opened.
¶ 27 Finally, Sarita also testified that approximately a week after the family meeting in
September 2015, she discovered a black notebook in her house that had a handwritten conversation
inside with two different handwritings. The notebook had been located on her kitchen bar in a
stack of papers and bills. Over defendant’s objection, the black notebook was entered into
-9- evidence. The State further introduced copies of the handwritten conversation from the notebook,
which were also admitted into evidence over defendant’s objection. Sarita identified one of the
handwritings from the conversation as belonging to defendant, which she then highlighted on the
copied pages of the notebook. She acknowledged on cross-examination that defendant had not
been living in the home since August 2015, and that she had filed for a divorce from him that same
month.
¶ 28 Following Sarita’s testimony regarding the black notebook, the State recalled M.L.
as a witness. M.L. testified she recognized the black notebook, as well as the handwriting it
contained. She stated she wrote in the notebook while in Sarita and defendant’s kitchen. M.L.
asserted defendant gave her the notebook to write in and that he also wrote in the notebook.
¶ 29 The record reflects the handwriting from the black notebook that was attributed to
defendant included the following statements: (1) “you should take off your bra and underwere
[sic]?”; (2) “would you like another ciggy?”; (3) “what you have is very nice and I would love be
[sic] the first one to do that.”; (4) “I don’t think you will want to because you won’t take off your
underwere [sic]”; (5) “about licking it. Is there anything else you want to do?” (6) “If I clean it do
you want to do what we did last time again but soft not hard?”; (7) “will you go take some pics
while I clean it? You should let me show you what all the parts of your stuff is! I will were [sic] a
glove and not put anything in you?”; (8) “I want to see it and you should know what it is[.]”
¶ 30 The jury found defendant guilty of three counts of predatory criminal sexual assault
of a child—counts I, III, and IV. In September 2016, defendant filed a motion for a new trial.
¶ 31 In October 2016, the trial court denied defendant’s posttrial motion and conducted
his sentencing hearing. The record shows the trial court stated it received and considered
defendant’s presentence investigation report (PSI), “a mitigation packet” containing letters in
- 10 - support of defendant from his friends and family, as well as victim impact statements from M.L.
and her mother. The PSI showed defendant’s criminal history included several traffic-related
offenses and a 2007 conviction for driving under the influence. It further showed defendant was a
high school graduate and that he and Sarita had two children. From 2011 to 2015, defendant did
not work and stayed at home with his children. In June 2015, he began working at a Meijer store
in Champaign, Illinois, and continued working there until September 2015, when he lost his job
for having “excessive absences due to mandatory court appearances in his *** divorce case as well
as an Order of Protection matter.” The PSI identified defendant’s children as being six and four
years old and stated they currently resided with their mother.
¶ 32 In aggravation at sentencing, Sarita testified that her family had been greatly
affected by defendant’s actions. She asserted her family previously spent a lot of time together and
“used to get along.” Currently, however, everything was “strained” and “uncomfortable.”
¶ 33 Defendant’s father, Sam Schoonover, testified in mitigation. He noted that
defendant’s mother died when defendant was eight or nine years old. Sam stated defendant was a
talented welder and artist. He identified pictures of defendant’s artwork and explained how
defendant and his stepbrother had designed and helped build a park pavilion in the community
where he lived. Sam also testified that defendant had been a stay-at-home dad for his two children
and “only had a couple jobs out of the house.” He maintained that the last time he visited with
defendant’s children, they asked about defendant.
¶ 34 The State recommended the trial court sentence defendant to 40 years in prison for
each of the three counts of predatory criminal sexual assault, totaling 120 years in prison. It argued
such a sentence was necessary to send a message to others and to stop defendant from harming
someone again. Defendant’s counsel asked the court to sentence defendant to only 30 years in
- 11 - prison. He argued defendant did not have a serious criminal history and asserted that imprisonment
would “be an excessive hardship to [defendant’s] dependents.” Counsel asserted defendant’s
children “still ask about him today” and noted that he had been a stay-at-home father. Counsel also
emphasized the many letters submitted on defendant’s behalf, which spoke favorably of
defendant’s character.
¶ 35 As stated, the trial court sentenced defendant to two 35-year prison terms (counts I
and III) and one 15-year prison term (count IV). The court ordered the sentences to be served
consecutively for a total of 85 years in prison. In setting forth its ruling, the court stated it had
considered the evidence presented as well as the statutory factors in aggravation and mitigation.
The court found there was mitigation on the record, although “not necessarily statutory
mitigation.” However, it also noted that defendant had a minimal criminal history, which it found
to be a mitigating factor.
¶ 36 The trial court determined the only statutory factor in aggravation was “the
deterrent factor.” It further stated as follows:
“The [d]efendant’s family, his friends have submitted letters and indicated
what a good person he is, but that is the disguise of a sexual predator. They don’t
wear a sign around their neck. They don’t have some indication that I am a child
molester. They’re otherwise good people. They’re solid citizens. They have jobs,
they have an education. All of which is to cover what they do in private with a child
or with children. So the fact that family members think highly of the Defendant and
are having a hard time understanding either what he did or whether or not he did it,
that is the nature of child molesters. What they do, they do in private, It’s not done
in public. They’re not easily identifiable. As a matter of fact, they’re hardly ever
- 12 - identified until after the fact has been—after they’ve been arrested and/or charged.
So the sentence imposed today has to act as an appropriate deterrent factor for all
the other molesters who are out there.”
¶ 37 Defendant filed a motion to reconsider his sentence. In November 2016, the trial
court conducted a hearing and denied the motion.
¶ 38 This appeal followed.
¶ 39 II. ANALYSIS
¶ 40 A. Ineffective Assistance of Counsel
¶ 41 On appeal, defendant first argues his defense counsel provided ineffective
assistance. Specifically, he complains that his counsel (1) improperly opened the door to
prejudicial and inadmissible testimony from Cashonna regarding communications between M.L.
and A.G.; (2) failed to properly object to Cashonna’s testimony regarding A.G.’s hearsay
statements about the interaction A.G. reported with defendant in a bathroom; (3) failed to properly
object to portions of M.L.’s recorded CAC interview, during which she stated she was being
bullied at school; and (4) failed to object to the admission of M.L.’s written hearsay statements in
the black notebook.
¶ 42 To establish an ineffective-assistance-of-counsel claim, a defendant must show that
his or her attorney’s performance (1) fell below an objective standard of reasonableness and
(2) caused the defendant prejudice “in that, absent counsel’s deficient performance, there is a
reasonable probability that the result of the proceeding would have been different.” People v.
Jackson, 2020 IL 124112, ¶ 90, 162 N.E.3d 223 (citing Strickland v. Washington, 466 U.S. 668,
687 (1984)). “Because the defendant must satisfy both prongs of this test, the failure to establish
either [deficient performance or prejudice] is fatal to the claim.” Id.
- 13 - ¶ 43 As to prejudice, “[a] ‘reasonable probability’ is defined as ‘a probability sufficient
to undermine confidence in the outcome.’ ” People v. Simpson, 2015 IL 116512, ¶ 35, 25 N.E.3d
601 (quoting Strickland, 466 U.S. at 694). “Thus, the defendant must show that counsel’s deficient
performance rendered the result of the trial unreliable or the proceeding fundamentally unfair.”
People v. Smith, 195 Ill. 2d 179, 188, 745 N.E.2d 1194, 1200 (2000). “If a defendant cannot
establish that he suffered prejudice, a court need not determine whether counsel’s performance
was constitutionally deficient.” Id.
¶ 44 Here, we agree with the State that defendant’s ineffective-assistance claims may be
resolved based on a lack of prejudice. In arguing that he suffered prejudice, defendant asserts that
the State’s primary evidence against him was “the testimony of one child witness, M.L.” He
suggests M.L.’s testimony lacked credibility or was entitled to only limited weight because her
“statements were not spontaneous” and were “only provided after being questioned by adults.”
Defendant notes the testimony of other witnesses at trial essentially amounted to a “retelling” of
M.L.’s non-spontaneous allegations against him. He also argues that evidence that he and Sarita
were “recently divorced” established Sarita’s bias against him, reflecting negatively on her
credibility. Defendant asserts that if it were not for his defense counsel’s deficient performance,
which resulted in the admission of A.G.’s hearsay statements, “the State would have been barred
from admitting Sarita’s testimony regarding the sex toys.” Further, he contends that M.L.’s
statements during the CAC interview “about being bullied at school due to the alleged offense”
were prejudicial to him because they constituted “an improper appeal to the emotions of the
jurors.”
¶ 45 Here, M.L. testified clearly regarding the sexual acts perpetrated against her by
defendant. While defendant claims the allegations she raised against him were not spontaneously
- 14 - made, M.L.’s own testimony showed that she first disclosed defendant’s alleged assaults to A.G.,
her minor cousin. Significantly, the evidence showed that a conversation between A.G. and her
mother ultimately prompted the family meeting with M.L., during which M.L. then made
disclosures to her mother, grandfather, and aunts. Additionally, the record reflects M.L. provided
substantially similar accounts of the alleged assaults at trial, to her family members, to the police,
and during the CAC interview. She was able to accurately describe the tattoo located on
defendant’s pubic area. Also, she consistently reported that defendant started discussing sexual
matters with her before the alleged sexual assaults occurred and that he asked her to take naked
photos of herself. M.L.’s testimony regarding defendant’s opportunity to commit the crimes,
defendant offering her alcohol and marijuana, and the pornography on defendant’s computer were
all supported by Sarita.
¶ 46 We also find compelling circumstantial evidence of defendant’s guilt was presented
through his handwritten statements in the black notebook. The handwriting in the black notebook
attributed to M.L. consisted of few-word responses to the statements attributed to defendant. The
most significant and damaging portions of the handwritten conversation were the statements
purportedly written by defendant, the admission of which he does not challenge on appeal. M.L.
testified defendant wrote in the black notebook and Sarita identified the statements in defendant’s
handwriting. M.L.’s testimony further supports the inference that the handwritten statements
attributed to defendant were directed at her. Defendant’s statements strongly corroborated M.L.’s
descriptions of her interactions with him. Specifically, the statements suggest defendant
(1) requested oral sex from M.L., (2) asked M.L. to remove her clothing and take pictures of
herself, (3) expressed that he wanted to help M.L. by identifying parts of her anatomy, and (4) wore
a glove during their interactions.
- 15 - ¶ 47 Under these circumstances, defendant was not prejudiced by any of the alleged
improperly admitted evidence. A.G.’s hearsay statements were insignificant in light of the properly
admitted evidence of defendant’s guilt, and the admission of those statements do not undermine
confidence in the outcome of defendant’s trial. Additionally, we note the issue of “sex toys” in
defendant’s possession was not solely introduced through A.G.’s hearsay statements. Rather,
during her CAC interview, M.L. also reported that defendant discussed the subject of “sex toys”
with her and showed her a “sex toy” he had in his possession. Thus, Sarita’s testimony regarding
the “sex toys” in her and defendant’s home helped further corroborate M.L.’s statements.
¶ 48 Additionally, as indicated above, M.L.’s hearsay statements from the black
notebook were negligible, consisting of short responses to defendant’s far more incriminating
handwritten statements. The real evidentiary value from the black notebook came from the
statements attributed to defendant. Again, defendant does not challenge the admission of his
handwritten statements on appeal.
¶ 49 Further, as noted, defendant also raises complaints regarding M.L.’s statements
during the CAC interview about being bullied. He asserts her comments pertained to the
underlying offenses and were prejudicial to him because they appealed to jurors’ emotions.
However, the complained-of statements were brief and limited to only a small portion of the
recorded interview. Further, the record does not clearly support a finding that the bullying M.L.
reported was due to her involvement in the underlying case. Instead, before talking about alleged
offenses, Bunyard asked M.L. general questions about herself, including questions about M.L.’s
schooling. M.L. stated she was not doing well in school because of “the issues.” She further stated
that she knew she could do better but “[i]t’s just really hard with all the people that bully me and
the issues I’m going through with old friends.” Nothing in M.L.’s statements explicitly relate either
- 16 - her poor school performance or being bullied to the incidents involving defendant. Consequently,
we find no prejudicial appeal to the jurors’ emotions.
¶ 50 Here, even assuming defense counsel’s performance was deficient as defendant
alleges on appeal, the record does not support a finding of Strickland prejudice. The evidence
against defendant was strong, and the evidence he argues was improperly admitted was
inconsequential. We find a lack of prejudice both when defendant’s claimed errors are considered
individually or cumulatively. Accordingly, defendant’s ineffective-assistance claims lack merit.
¶ 51 We note defendant additionally argues his claims of error, although not properly
preserved for review, are reviewable under the plain-error doctrine.
“The plain error doctrine is applicable when a clear or obvious error
occurred and (1) the evidence is so closely balanced that the error alone threatened
to tip the scales of justice against the defendant (first-prong plain error) or (2) the
error is so serious that it affected the fairness of the defendant’s trial and challenged
the integrity of the judicial process (second-prong plain error).” Schoonover, 2021
IL 124832, ¶ 27.
¶ 52 First, we note “[p]lain-error review under the closely-balanced-evidence prong of
plain error is similar to an analysis for ineffective assistance of counsel based on evidentiary error
insofar as a defendant in either case must show he was prejudiced.” People v. White, 2011 IL
109689, ¶ 133, 956 N.E.2d 379. Further, “[w]hen it is clear that the alleged error would not have
affected the outcome of the case, a court of review need not engage in the meaningless endeavor
of determining whether error occurred.” Id. ¶ 148. For the reasons already stated, we find the
record contains strong and compelling evidence of defendant’s guilt and the evidence was not
closely balanced. Thus, even assuming error occurred as alleged by defendant, he cannot establish
- 17 - the occurrence of first-prong plain error.
¶ 53 Second, defendant’s arguments on appeal also fail to establish second-prong plain
error. “Under the second prong of plain-error review, [p]rejudice to the defendant is presumed
because of the importance of the right involved, regardless of the strength of the evidence.”
(Emphasis and internal quotation marks omitted.) People v. Thompson, 238 Ill. 2d 598, 613, 939
N.E.2d 403, 413 (2010). However, as noted by the State, the supreme court has “equated the second
prong of plain-error review with structural error[.]” Id. “An error is typically designated as
structural only if it necessarily renders a criminal trial fundamentally unfair or an unreliable means
of determining guilt or innocence.” Id. at 609. The supreme court has recognized errors as being
structural in only a limited class of cases, including those involving “a complete denial of counsel,
trial before a biased judge, racial discrimination in the selection of a grand jury, denial of self-
representation at trial, denial of a public trial, and a defective reasonable doubt instruction.” Id.
¶ 54 Here, the types of errors alleged by defendant concern the erroneous admission of
hearsay and irrelevant evidence at trial. We agree with the State that defendant’s claimed errors,
neither individually nor cumulatively, rise to the level of structural error. See People v. Temple,
2014 IL App (1st) 111653, ¶ 51, 14 N.E.3d 622 (finding the errors the defendant complained of—
“admission of prior consistent statements, hearsay testimony from police officers going beyond
the scope of explaining police procedure, and prosecutorial misconduct in closing and rebuttal
arguments”—did not “fall under the umbrella of structural error”).
¶ 55 B. Sentencing
¶ 56 On appeal, defendant next argues the trial court abused its discretion during his
sentencing. He contends the court improperly “applied a personal sentencing policy” and failed to
give proper weight to a statutory mitigating factor—the excessive hardship defendant’s
- 18 - imprisonment would have on his dependents.
¶ 57 “The Illinois Constitution provides penalties are to be determined both according
to the seriousness of the offense and with the objective of restoring the offender to useful
citizenship.” People v. Daly, 2014 IL App (4th) 140624, ¶ 26, 21 N.E.3d 810 (citing Ill. Const.
1970, art. I, § 11). “This constitutional mandate calls for balancing the retributive and rehabilitative
purposes of punishment, and the process requires careful consideration of all factors in aggravation
and mitigation.” Id.
¶ 58 Additionally, “[t]he trial court has broad discretionary powers in imposing a
sentence, and its sentencing decisions are entitled to great deference.” People v. Alexander, 239
Ill. 2d 205, 212, 940 N.E.2d 1062, 1066 (2010). “The trial court must base its sentencing
determination on the particular circumstances of each case, considering such factors as the
defendant’s credibility, demeanor, general moral character, mentality, social environment, habits,
and age.” People v. Fern, 189 Ill. 2d 48, 53, 723 N.E.2d 207, 209 (1999). On review, a defendant’s
sentence may not be altered absent an abuse of discretion by the trial court. People v. Snyder, 2011
IL 111382, ¶ 36, 959 N.E.2d 656. “A sentence will be deemed an abuse of discretion where the
sentence is greatly at variance with the spirit and purpose of the law, or manifestly disproportionate
to the nature of the offense.” (Internal quotation marks omitted.) Alexander, 239 Ill. 2d at 212.
¶ 59 As defendant points out, “[c]ourts of review have reversed and remanded for
resentencing where it has been shown trial judges have sentenced individuals based upon what is
referred to as a ‘personal sentencing policy.’ ” People v. Scott, 2015 IL App (4th) 130222, ¶ 46,
25 N.E.3d 1257; see also People v. Musgrave, 2019 IL App (4th) 170106, ¶ 55, 141 N.E.3d 320
(stating “the trial court may not have a personal sentencing policy that fails to conform to the
standards of the Unified Code”). Here, defendant contends the trial court was of the opinion “that
- 19 - ‘child molesters’ could not, apart from their offense, be good people or do good things,” resulting
in a personal sentencing policy that “disallow[ed]” the court “from considering mitigating
evidence for child sex offenders.”
¶ 60 Defendant maintains the present case is comparable to the supreme court’s decision
in People v. Bolyard, 61 Ill. 2d 583, 338 N.E.2d 168 (1975). There, the defendant was convicted
of indecent liberties with a child and, although probation was an available sentence, the trial judge
“expressed his opinion that perpetrators of such a crime should not receive probation.” Id. at
585-87. The supreme court determined the defendant was entitled to a new sentencing hearing
because the record affirmatively showed “the trial judge arbitrarily denied probation because [the]
defendant fell within the trial judge’s category of disfavored offenders.” Id. at 587.
¶ 61 We find Bolyard distinguishable from the case at bar. At sentencing, defendant
submitted several letters from family and friends that spoke positively about his character. Defense
counsel emphasized those letters when presenting argument to the trial court. In setting forth its
ruling, the court commented on the letters, stating that although they indicated defendant was a
good person, individuals who commit child sex offenses do so in private and are not easily
identifiable. Immediately following those comments, the court explained that its sentence had “to
act as an appropriate deterrent factor for all the other molesters who are out there.” When taken in
context, the court’s comments do not reflect a refusal to consider mitigating evidence. Rather, the
record shows the court was responding to defense counsel’s arguments and providing an
explanation of the weight it was attributing to the evidence before it.
¶ 62 The trial court’s comments show that it did consider the mitigating evidence
defendant presented, i.e., the letters written on his behalf. Ultimately, however, the court applied
little weight to that evidence when compared to other factors, including the seriousness of the
- 20 - offenses and the need for deterrence. Accordingly, we find no error as alleged by defendant.
¶ 63 As stated, defendant also argues the trial court abused its discretion by failing to
consider and give proper weight to a statutory factor in mitigation, i.e., that “the imprisonment of
the defendant would entail excessive hardship to his dependents.” 730 ILCS 5/5-5-3.1(a)(11)
(West 2016). Defendant argues on appeal that the evidence showed he was “the primary caretaker
of his children as a stay-at-home dad.” He contends that “[d]ue to the cost of daycare, a long
incarceration would have presented excessive hardship on [his] dependents.”
¶ 64 Although it is required that a sentencing court consider statutory factors in
mitigation and aggravation, “the court need not recite and assign a value to each factor it has
considered.” People v. McGuire, 2017 IL App (4th) 150695, ¶ 38, 92 N.E.3d 494. “[W]hen
mitigating factors are presented to the court, we presume that the trial court considered them,
absent some contrary evidence.” People v. Zarka-Nevling, 308 Ill. App. 3d 516, 526, 720 N.E.2d
334, 341 (1999).
¶ 65 Here, the trial court explicitly stated that it had considered statutory factors in
aggravation and mitigation. As stated above, the court was not required to recite and assign value
to each factor. Further, scant evidence was presented at sentencing regarding any “excessive”
hardship to defendant’s children. Defendant’s PSI showed that between 2011 and 2015, he did not
work and stayed home to provide care for his and Sarita’s children. However, in June 2015, prior
to the underlying charges in this case, defendant began working outside the home. At the time the
PSI was filed, the children were residing with Sarita. No other evidence was presented regarding
the children’s specific circumstances or “the cost of daycare.” Moreover, defendant fails to explain
how this factor would be relevant to a lesser sentence of 30 years, which his counsel recommended
at sentencing, when his children would have reached majority well before his release from prison.
- 21 - Under such circumstances, it was not an abuse of discretion for the trial court to find this factor
inapplicable.
¶ 66 III. CONCLUSION
¶ 67 For the reasons stated, we affirm the trial court’s judgment.
¶ 68 Affirmed.
- 22 -