People v. Shoemaker

2022 IL App (4th) 210482-U

• Court: Appellate Court of Illinois
• Decided: June 23, 2022
• Docket: 4-21-0482
• Status: Unpublished

Opinion

NOTICE 2022 IL App (4th) 210482-U FILED This Order was filed under June 23, 2022 Supreme Court Rule 23 and is Carla Bender NO. 4-21-0482 not precedent except in the th 4 District Appellate limited circumstances allowed IN THE APPELLATE COURT Court, IL under Rule 23(e)(1).

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Livingston County JASON SHOEMAKER, ) No. 20CF310 Defendant-Appellant. ) ) Honorable ) Jennifer H. Bauknecht, ) Judge Presiding.

JUSTICE DeARMOND delivered the judgment of the court. Justices Harris and Holder White concurred in the judgment.

ORDER ¶1 Held: The appellate court affirmed, concluding no plain error occurred because the trial court is presumed to have conducted the proper Montgomery balancing test regarding the admission of defendant’s prior conviction for impeachment, if it considered it at all, and because the evidence was not closely balanced.

¶2 Following a bench trial, defendant, Jason Shoemaker, was found guilty of three

counts of criminal sexual assault (720 ILCS 5/11-1.20(a)(1) (West 2020)), and sentenced to three

consecutive terms of 10 years in prison. Defendant appeals, arguing the trial court erroneously

allowed the admission of his prior criminal conviction when it failed to conduct a balancing

analysis pursuant to People v. Montgomery, 47 Ill. 2d 510 (1971). The State contends the trial

court did not abuse its discretion when it allowed the admission of his prior conviction. We

affirm the trial court’s judgment. ¶3 I. BACKGROUND

¶4 In November 2020, the State charged defendant by information with six counts of

criminal sexual assault, Class 1 felonies (720 ILCS 5/11-1.20(a)(1), (a)(4) (West 2020)). Counts

I, II, and III alleged defendant, who was 17 years of age or older and a household member of

E.R., who was over the age of 13 but under 18, committed acts of sexual penetration with E.R.

when he (1) placed his penis in the vagina of E.R. (count I), (2) placed his penis in the anus of

E.R. (count II), and (3) placed his penis in the mouth of E.R. See id. § 11-1.20(a)(4). Counts IV-

VI mirrored counts I-III but additionally alleged defendant committed the aforementioned

offenses by the use of force. See id. § 11-1.20(a)(4).

¶5 A. Bench Trial

¶6 Defendant’s case proceeded to a bench trial in March 2021. We summarize the

relevant evidence as follows.

¶7 1. E.R.

¶8 E.R. testified she lived with three cousins (Jack, Michele, and Quentin), her two

younger sisters (Em. R. and K.R.), her mother, and defendant. E.R. considered 43-year-old

defendant as a family friend and pseudo “uncle.”

¶9 When E.R. was 15, she lived in Streator, Illinois. Sometime in April 2020, she

was alone in her cousin Quentin’s room when defendant came in and locked the door. During

this incident, defendant pushed E.R. backwards as she sat on the bed, took off her clothing and

undergarments, and inserted his penis inside of her vagina.

¶ 10 Another incident, which was not part of the charged offenses in this case,

occurred in August 2020 during a family trip to Florida. E.R. and her other family members went

to defendant’s hotel room to have ice cream. When the others had left, E.R. realized she had

-2- dropped her phone and returned to the room to retrieve it. When she tried to walk out of

defendant’s hotel room, defendant grabbed her and pushed her onto the bed. While standing in

front of her, defendant proceeded to pull down his shorts and force his penis into E.R.’s mouth

by grabbing the back of her head. After defendant stopped but before he pulled up his shorts

completely, E.R.’s friend and sister came into the room. When they asked what happened, E.R.

stated she did not want to talk about it. E.R. testified defendant threatened to “beat” her if she

told anybody.

¶ 11 After they returned from Florida, E.R.’s family moved into a new home. In

September 2020, when E.R. was 16, E.R. was in her room watching television; everyone was

gone except defendant. Defendant entered E.R.’s room, and as she sat on the bed, defendant

pulled down her shorts and underwear, “threw [her] backwards, pinned [her] down to the bed,”

and forced his penis inside of her vagina and anus. Defendant also placed his mouth on E.R.’s

vagina. Defendant held E.R.’s arms down on the bed, and when E.R. asked him to stop, he

responded, “[J]ust let me do what I’ve got to do.” After he stopped, defendant told E.R. not to

tell anybody or he would beat her.

¶ 12 Following the incident in Florida, E.R. testified she was forced to perform oral

sex on defendant “twice.” Around October 2020, E.R.’s cousin, Jack, became aware of “what

was going on” and made defendant move out of the home.

¶ 13 On cross-examination, E.R. agreed that she did not call out for help during the

incident in Florida or during any of the other incidents at her home. She also agreed she had not

been examined by a doctor and did not have any fear about going to Florida with defendant. She

did not express to anyone that she did not want to go to Florida with defendant. E.R. did not

reach out to a teacher, school resource officer, nurse, or school counselor regarding defendant.

-3- ¶ 14 On redirect examination, E.R. testified she did not tell anyone about the incidents

with defendant because she was “very scared” of defendant, and she believed him when he

threated to “beat” her if she told anyone about it.

¶ 15 2. Em. R.

¶ 16 Em. R. testified she was 15 years old and E.R. was her older sister. Em. R.

testified defendant had lived with her family on and off since she was about five.

¶ 17 Em. R. recalled that during a family trip to Florida in August 2020, she and her

friend “walked in” on E.R. and defendant in defendant’s hotel room. When they walked in, E.R.

was lying on the bed facing towards the television, and defendant was standing against the bed

facing E.R. Defendant’s pants were partially pulled down around his legs. Defendant mentioned

his “pants were too big” and walked away. Afterwards, defendant would not make eye contact

with Em. R.

¶ 18 3. Defendant

¶ 19 After the State rested, defendant testified on his own behalf. Defendant testified

he had lived with E.R. and Em. R.’s cousins, Jack and Michele, on and off for about 14 years.

Defendant testified he was incarcerated in the La Salle County jail from December 2020 to

January 2021 on unrelated charges.

¶ 20 Defendant denied forcing E.R. to perform oral sex on him during the family trip

to Florida. Defendant explained there were many people coming and going from his hotel room

at any given time and described the layout of the hotel room.

¶ 21 During rebuttal, the State moved to admit People’s Exhibit 1, which was a

certified copy of defendant’s conviction for unlawful possession of cocaine, a Class 4 felony, in

La Salle County case No. 19-CF-33. The exhibit was admitted without objection.

-4- ¶ 22 4. Arguments & Conviction

¶ 23 The State argued E.R. provided clear testimony showing defendant used force as

alleged in counts IV, V, and VI, in that he grabbed E.R.’s head, threatened to “beat” E.R. if she

told anyone, and continued his sexual advances after being told by E.R. to stop. The State further

argued Em. R.’s testimony corroborated E.R.’s allegations.

¶ 24 Defendant argued E.R. was not credible due to inconsistencies in her testimony

regarding the dates the alleged offenses took place, noting defendant was incarcerated in La Salle

County during the time frame E.R. testified he committed some of the alleged acts. Defendant

further argued Em. R.’s testimony did not corroborate E.R.’s claims. Specifically, defendant

argued given the layout of the hotel room in Florida, Em. R. would not have been able to see

E.R. and defendant by the bed upon walking into the room. Finally, defendant argued the State

presented no physical evidence and E.R. had not had a medical examination.

¶ 25 Following arguments, the trial court found defendant guilty of counts IV, V, and

VI, which alleged defendant used force, but not guilty of counts I, II, and III. The court found

E.R. to be a very credible witness, noting the allegations were traumatic and the fact E.R. may

have “misstated” a date was “not significant enough to suggest that the allegations could not

have happened in Livingston County based upon one year that she gave wrong in the totality of

the evidence.” The court found no evidence of a motive for E.R. to lie given that she did not

come forward with the allegations, but rather “somebody found out somehow.” The court further

found defendant’s argument regarding the layout of the hotel room unpersuasive, stating, “I

don’t think the Defendant’s argument that because of the layout of the hotel room it was not

possible to be viewed by [Em. R].” The court found Em. R.’s testimony corroborated E.R.’s and

was also very credible. In contrast, the court found defendant’s testimony not to be credible,

-5- noting he avoided any mention of acts committed in Livingston County and only denied the

incident that happened in Florida, which was not charged in this case. The court concluded,

“[E]ven if the Defendant had not taken the stand in his own defense, I don’t think that would

change anything in regards to the testimony of [E.R.], which is very strong and compelling.”

¶ 26 B. Posttrial Proceedings

¶ 27 Following a sentencing hearing, the trial court sentenced defendant to consecutive

terms of 10 years in prison on counts IV, V, and VI, for an aggregate term of 30 years.

¶ 28 Defendant filed a motion to reconsider his sentence, arguing the court did not

afford sufficient weight to the applicable mitigating factors. Following a hearing, the trial court

denied the motion.

¶ 29 This appeal followed.

¶ 30 II. ANALYSIS

¶ 31 On appeal, defendant argues the trial court abused its discretion when it allowed

defendant to be impeached with his conviction for unlawful possession of cocaine in La Salle

County case No. 19-CF-33 without first determining its admissibility pursuant to Montgomery.

Defendant acknowledges he has forfeited any claim regarding the admission of his prior

conviction by failing to object at trial and raise the issue in a postsentencing motion. Defendant

nonetheless asks this court to review his claim under the plain error doctrine. See Ill. S. Ct. R.

615(a) (eff. Jan. 1, 1967). The State argues the admission of defendant’s prior conviction was

proper, or alternatively, the evidence was not closely balanced and therefore no plain error

occurred. We agree with the State the evidence was not closely balanced and no plain error

occurred.

¶ 32 A. Plain Error Review

-6- ¶ 33 Defendant argues the admission of his prior conviction constituted plain error.

“The plain-error rule bypasses normal forfeiture principles and allows a reviewing court to

consider unpreserved claims of error in specific circumstances.” People v. Thompson, 238 Ill. 2d

598, 613 (2010). This court will apply the plain error doctrine if a clear or obvious error occurred

and either (1) “the evidence is so closely balanced that the error alone threatened to tip the scales

of justice against the defendant, regardless of the seriousness of the 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, regardless of the closeness of the evidence.” People v. Piatkowski, 225 Ill. 2d

551, 565 (2007). However, “[t]he plain-error rule is not a general saving clause for all trial

errors. Rather, it is a limited and narrow exception ‘designed to redress serious injustices.’ ”

People v. Scott, 2015 IL App (4th) 130222, ¶ 41 (quoting People v. Baker, 341 Ill. App. 3d 1083,

1090 (2003)). Under plain error review, the burden of persuasion lies with defendant.

Thompson, 238 Ill. 2d at 613.

¶ 34 B. Admission of Defendant’s Prior Conviction

¶ 35 Defendant argues the alleged erroneous admission of his prior conviction is

reviewable as first-prong plain error. We disagree.

¶ 36 The trial court is required under Montgomery to evaluate the probative value of

the conviction to be used for impeachment and weigh it against its potential for prejudice. People

v. Mullins, 242 Ill. 2d 1, 14 (2011). There is nothing in Montgomery or its progeny, however,

requiring the trial court to specify and evaluate, on the record, the factors used if it actually

applies the test. People v. Melton, 2013 IL App (1st) 060039, ¶ 17 (citing People v. Washington,

55 Ill. 2d 521, 523-24 (1973)). In fact, a trial court is presumed to understand the law and

properly apply it. People v. Brown, 2013 IL App (3d) 110669, ¶ 50.

-7- ¶ 37 In this instance, the trial court made no mention of defendant’s prior conviction

introduced in rebuttal after defendant testified. We know from the record, however, the trial

court was familiar with the balancing of probative value versus prejudice. As a result of a

last-minute motion filed by the State pursuant to section 115-7.3 of the Code of Criminal

Procedure of 1963 (725 ILCS 5/115-7.3 (West 2018)), the trial court was asked to weigh the

admissibility of similar uncharged acts against the victim, which the State sought to use for

purposes of propensity evidence. While cautioning the State against filing such a motion within

hours of defendant’s bench trial, the court expressly weighed the statutory factors for the use of

propensity evidence under the statute and concluded “the probative value would outweigh any

prejudicial effect, especially since the Court is in a position to not be prejudiced in the, or in the

fact-finding mission.”

¶ 38 After admission of defendant’s prior drug conviction in rebuttal, neither side

mentioned it in argument, and the trial court likewise made no mention of it when rendering its

decision. As our supreme court noted in People v. Williams, 173 Ill. 2d 48, 83 (1996), “there is

no reason to suppose [the trial court] disregarded the familiar, well-established Montgomery

standard in determining that the impeachment was proper.” It is equally possible, from this

record, to conclude the trial court saw no need to conduct the Montgomery balancing test at all

since the court gave the prior conviction no consideration. Again, this was a bench trial and

defendant was being tried for six counts of Class 1 criminal sexual assault. The court provided a

detailed explanation of how it weighed the credibility of witnesses, including defendant, and

ultimately found him not guilty of the three counts alleging his “position of authority” over the

victim. Nowhere in the court’s explanation of its ruling did it comment on the prior conviction or

its effect on defendant’s credibility. Instead, the court’s assessment of defendant’s credibility

-8- appeared most affected by the fact that although defendant specifically denied the uncharged

incidents occurring elsewhere, “he avoided Livingston County or anything with Livingston

County.”

¶ 39 It would have been better practice to address the issue of defendant’s prior

conviction before trial, or at least before he testified. See People v. Patrick, 233 Ill. 2d 62, 73

(2009) (“We agree with the comments of our appellate court and the courts of our sister states

recognizing defendants’ need for an early ruling and acknowledging that, in most cases, the trial

judge will possess the information necessary to conduct a Montgomery hearing before trial.”);

People v. Averett, 237 Ill. 2d 1, 12 (2010) (stating the trial judges in the consolidated appeals

abused their discretion by using a blanket policy to defer rulings on the motions in limine). It is

equally true it would have been better practice to expressly mention the Montgomery balancing

test or note for the record the court was not even considering the prior conviction—but it isn’t

required. Melton, 2013 IL App (1st) 060039, ¶ 17.

¶ 40 C. Balance of the Evidence

¶ 41 Even if we assume for argument the trial court failed to conduct a balancing

inquiry as required by Montgomery when it allowed the admission of his conviction, the record

shows the evidence was not closely balanced. Here, the court found E.R.’s testimony was

“strong” and “compelling” and that she and Em. R. were both very credible. The court noted

E.R. had no discernible motive to lie, and Em. R.’s testimony corroborated E.R.’s version of

events. The court found defendant not to be credible—not because of any prior conviction—but

because he completely avoided any discussion of events occurring in Livingston County, where

the charged conduct in this case occurred. The court was further unpersuaded by defendant’s

argument the charged conduct could not have occurred on the date alleged by E.R. because he

-9- was incarcerated in La Salle County, attributing any inconsistency in E.R.’s testimony to a

simple misstatement by a traumatized young woman. The court was also unpersuaded by

defendant’s argument Em. R. could not have witnessed defendant standing in front of E.R. with

his pants partially pulled down in his Florida hotel room because of the “layout” of the room,

concluding nothing about the layout rendered either E.R.’s or Em. R.’s testimony unbelievable.

Finally, the court concluded, “[E]ven if [defendant] had not taken the stand in his own defense, I

don’t think that would change anything in regards to the testimony of [E.R.], which is very

strong and compelling.” Given this record, we cannot conclude the evidence in this case was

closely balanced.

¶ 42 Because the trial court is presumed to have properly applied the Montgomery

balancing test, if it considered defendant’s prior conviction at all, and because the evidence in

this case was not closely balanced, we reject defendant’s argument plain error occurred.

Accordingly, we affirm the trial court’s judgment.

¶ 43 III. CONCLUSION

¶ 44 For the reasons stated, consistent with Illinois Supreme Court Rule 23(b) (eff. Jan.

1, 2021), we affirm the trial court’s judgment.

¶ 45 Affirmed.

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