2025 IL App (1st) 220427-B
FIFTH DIVISION October 17, 2025
No. 1-22-0427
IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County, ) Criminal Division v. ) ) No. 19 CR 14458 CECIL SMART, ) ) The Honorable Defendant-Appellant. ) Carol M. Howard ) Judge, presiding.
PRESIDING JUSTICE TAILOR delivered the judgment of the court, with opinion. Justice C.A. Walker concurred in the judgment and opinion. Justice Mikva dissented, with opinion.
OPINION
¶1 Cecil Smart was charged with three counts of aggravated criminal sexual abuse based on
allegations that he sexually abused a 16-year-old boy named J.P. Count I alleged that Smart
knowingly committed an act of sexual penetration upon J.P. by putting his mouth on J.P.’s penis,
count II alleged that Smart touched J.P.’s penis with his hand for the purpose of sexual
gratification, and count III alleged that Smart knowingly committed an act of sexual conduct
upon J.P. by causing J.P.’s hand to touch Smart’s penis. In a bench trial, the court convicted
Smart of the first two counts, but found him not guilty on the third count, and sentenced him to
30 months of probation. No. 1-22-0427
¶2 After the court denied Smart’s motion for a new trial, he appealed and argued that (1) the
trial court reversibly erred by admitting other acts evidence and (2) he received ineffective
assistance of counsel. On September 15, 2023, we reversed and remanded after finding that the
trial court reversibly erred when it admitted other acts evidence. People v. Smart, 2023 IL App
(1st) 220427. On June 5, 2025, our supreme court reversed. People v. Smart, 2025 IL 130127.
Although it agreed that the trial court’s decision to admit other acts evidence was improper, it
found the admission of this evidence was harmless. Id. ¶ 110. Therefore, it remanded for us to
consider the merits of Smart’s ineffective assistance claim. Id. ¶ 111. After considering his
ineffective assistance claim, we reverse and remand for a new trial.
¶3 I. BACKGROUND
¶4 In 2018, when J.P. was 16 years old, he spent the summer with his older sister, Ciera S.,
who lived in Chicago and worked for Breakthrough Urban Ministries (Breakthrough). While in
Chicago, J.P. volunteered at Breakthrough. Smart used to work at Breakthrough as well, and he
and Ciera became friends. By the time J.P. started at Breakthrough, Smart had already been
terminated by Breakthrough, but Ciera and Smart continued to socialize. Multiple witnesses
testified that Ciera was romantically interested in Smart, but Smart only wanted to be friends.
Smart lived with his brother, Frank; Frank’s partner, Amanda; and Frank and Amanda’s children.
¶5 When J.P. came to Chicago, Ciera introduced him to Smart, and afterwards, Smart
invited J.P. along when he took his nephews on various outings. First, Smart invited J.P. to go to
the zoo. The night before their trip, J.P. spent the night at Smart’s house because Ciera had to
work early the next morning and did not think she would have time to drop him off. Smart
directed J.P. to sleep next to him in his bed, and the two slept side by side without incident.
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¶6 Several weeks later, Smart invited J.P. to go with him and his nephews to see fireworks at
Navy Pier, and J.P. accepted. J.P. testified that in the car on the way to the fireworks show he
saw Smart drinking what he believed was alcohol. J.P. said that when Smart offered him the
alcohol, he drank some because he “kind of felt pressured” to do so. By the time Smart, J.P., and
Smart’s nephews arrived at Navy Pier, the fireworks were already over, so they looked at the city
skyline for a while. Then, they stopped at McDonald’s for food and returned to Smart’s house to
eat. J.P. testified that Smart offered him more alcohol at the house and that he drank about “two
shots worth,” which made him feel sick. J.P. then threw up in the kitchen, and Smart cleaned it
up.
¶7 Afterwards, J.P. took a shower and then went to bed. He testified that he slept in Smart’s
bed because that is where he slept the last time he stayed over. According to J.P., Smart got in
bed with him, and shortly thereafter, Smart “started touching [him].” J.P. said that he kept his
eyes closed and pretended to be asleep. Smart then pulled down J.P.’s shorts and underwear,
started stroking J.P.’s penis, and then put his mouth on J.P.’s penis. J.P. testified that even though
his eyes were closed, he could tell Smart’s mouth was on his penis because he heard Smart’s
breath and felt his beard. Smart rubbed his penis against J.P.’s closed fist as well. J.P. testified
that he did not cry out or fight back at any time because he was “scared” of what Smart might do
and because he believed “nobody would be able to help [him].” Testimony established that Frank
and Amanda were home that night, as well as Smart’s niece and nephews. Smart admitted that he
and J.P. slept in the same bed that night but denied J.P.’s allegations of sexual abuse.
¶8 J.P. testified that the morning after his encounter with Smart he texted his friend M.T.
and told her “everything that happened.” He explained that he did not tell his mom or sister what
Smart had done to him because he did not want them to worry. It was not until several months
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later, in October 2018, that J.P. finally told his mother and sister what had happened. He then
reported the incident to police.
¶9 II. ANALYSIS
¶ 10 Smart contends that defense counsel was ineffective because he (1) failed to object to
other-crimes evidence that the court had already deemed inadmissible, (2) stipulated to the
admission of some of the same inadmissible evidence, (3) failed to object to improper hearsay
evidence, and (4) repeatedly referenced the same inadmissible hearsay evidence at trial. The
State argues that defense counsel’s decisions were strategic ones and that Smart cannot
demonstrate the requisite prejudice.
¶ 11 We review ineffective assistance of counsel claims de novo (People v. Bates, 2018 IL
App (4th) 160255, ¶ 46), and analyze them under the two-part test announced by the United
States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), adopted by our supreme
court in People v. Albanese, 104 Ill. 2d 504 (1984). Under the first part of this test, a defendant
must show that counsel’s performance was so deficient that it “fell below an objective standard
of reasonableness.” Strickland, 466 U.S. at 687-88. Under the second part of the test, a defendant
must show that he was prejudiced by counsel’s mistakes. Id. at 687.
¶ 12 A. Counsel’s Performance Fell Below an Objective Standard of Reasonableness
¶ 13 To show counsel’s deficient performance, a defendant must overcome the “strong
presumption” that counsel’s decisions were the product of “sound trial strategy.” (Internal
quotation marks omitted.) People v. Manning, 241 Ill. 2d 319, 327 (2011). A defense attorney
performs unreasonably where he fails to use the rules of evidence to preclude improper or
harmful facts at trial. People v. Moore, 279 Ill. App. 3d 152, 159 (1996).
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¶ 14 1. Defense Counsel’s Stipulation and Failure to Object to Previously-Excluded
Prior Acts Evidence
¶ 15 Before trial, the State moved to admit the following other-crimes evidence: (1) a 2012
incident where Smart allegedly gave alcohol to an 18-year-old male student athlete when he was
coaching basketball at Sterling College in Kansas, (2) a March 2018 incident where Smart was
alone with a male teenage student in violation of Breakthrough’s policy, and (3) a June 2018
incident where Smart drove a male teenage Breakthrough student home and touched his
buttocks. The court admitted the June 2018 incident, but excluded the 2012 Sterling College
incident and the March 2018 Breakthrough incident because it found that any probative value of
this evidence was “far outweighed by its prejudicial effects.”
¶ 16 Yet, the State cross-examined defense witnesses about both of the excluded incidents.
First, the State asked Smart’s character witness, Robert Muzikowski, if he was “aware of the fact
that [Smart] was reprimanded for being alone with a student and drinking with a student when he
was an employee at Sterling College in Kansas?” Muzikowski responded that he was not. Then,
the State asked Frank if he knew Smart “was reprimanded at [Sterling College] for being alone
with a student and drinking alone with a student too?” Frank also said he was unaware of the
Sterling College incident. The State questioned Smart about the incident as well, asking, “you
were reprimanded when you were work[ing] at Sterling College, correct?” and “What happened
at Sterling College?” Despite the court’s in limine ruling, defense counsel failed to object to any
of the State’s questions.
¶ 17 The State also elicited testimony about the previously excluded March 2018 incident at
Breakthrough, asking Smart if it was true that he was “alone with a child against [Breakthrough]
policy.” Defense counsel did not object to the State’s question, and Smart initially denied the
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allegation. Afterwards, the State announced that it planned to call Breakthrough’s human
resources director, Marcie Curry, to “rebut some of the things [Smart] said about his ***
employment at Breakthrough Ministries.” After learning that Curry was unavailable to testify
that day, defense counsel objected to a continuance and instead agreed to stipulate that if called,
Curry would testify that
“on June 22nd, 2018, [Smart] was notified by mail that he was terminated from
employment at Breakthrough Ministries due to the fact that on June 12th, 2018, while
transporting a participant, [E.L.], home it was alleged that [Smart] touched [E.L.]
inappropriately. On March 29th, 2018, it was discovered that [Smart] was working with a
program participant alone in the family plex prayer room, and that because of these
policy violations of never working alone with students, Cecil Smart, this defendant,
received a verbal warning, and both of these established policies were reviewed during a
team meeting, which was held on February 19th, 2018, in which [Smart] acknowledged
attendance. She would further state that as a culmination of policy violations, [Smart’s]
employment at Breakthrough Urban Ministries was terminated effective June 21st,
2018.”
¶ 18 During closing arguments, the State relied upon this previously-excluded other acts
evidence to argue that Smart “engag[ed] in a pattern of abuse against boys.” The State argued
that “a few months before [Smart met J.P.] he is reprimanded for being alone with a student. A
child who is approximately the same age as [J.P.], a male child, a few months before. Despite
that reprimand, he then is in a car one month before this incident with [another teenage male
student] driving him home and slaps his butt.” The State relied upon this evidence to argue that
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this “pattern of abuse against boys *** culminated in him raping [J.P.].” Again, defense counsel
did not object.
¶ 19 Smart contends that defense counsel was ineffective for failing to object to and, even
worse, stipulating to other-crimes evidence after the court had already deemed this evidence
inadmissible because of its “prejudicial effects.”
¶ 20 While we must be “highly deferential” to counsel’s strategic choices at trial (People v.
Perry, 224 Ill. 2d 312, 344 (2007)), we will find counsel’s performance deficient where
counsel’s actions “appear[ ] so irrational and unreasonable that no reasonably effective defense
attorney, facing similar circumstances, would pursue such a strategy.” People v. King, 316 Ill.
App. 3d 901, 916 (2000). While generally, what to object to and when to object are matters of
trial strategy, an attorney is expected to use “established rules of evidence and procedure to
avoid, when possible, the admission of incriminating statements, harmful opinions, and
prejudicial facts.” Id. (quoting Moore, 279 Ill. App. 3d at 159).
¶ 21 The State argues that defense counsel’s failure to object to the State’s repeated references
to inadmissible other-crimes evidence here was a matter of sound trial strategy, but we cannot
conceive of a reason why defense counsel did not object and even stipulated to evidence that he
had already persuaded the court to exclude precisely because its probative value was “far
outweighed by its prejudicial effects.” The State asserts that defense counsel’s failure to object
was a “smart decision” because it “allowed the trial court to hear that [Smart] did not commit
these prior acts.” But neither Frank nor Muzikowski said that Smart did not commit these prior
acts; instead, they simply said they were “unaware” whether Smart had been reprimanded for
“being alone with a student and drinking with a student” at Sterling College. And although Smart
initially denied that he had been alone with a student at Breakthrough in March 2018, defense
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counsel’s stipulation to Curry’s testimony confirmed that Smart did in fact “work[ ] with a
program participant alone in the family plex prayer room” in violation of Breakthrough’s policy.
Smart similarly denied that he was “reprimanded” when he worked at Sterling College, but
ultimately acknowledged that “[his] name came up” after he “cut a kid [from the basketball
team] at the collegian level” and that the kid’s father then “tried to sue the school.”
¶ 22 We can discern no sound strategic reason for defense counsel’s failure to object at any
point, and stipulating to boot, to other acts evidence that he had convinced the trial court to
exclude prior to trial. See People v. Hampton, 2021 IL App (5th) 170341, ¶ 76 (finding defense
counsel’s decision to elicit testimony about defendant’s other charges “did not constitute sound
trial strategy” because under the court’s pretrial ruling, “such evidence was to be excluded”).
This other-crimes evidence was damaging because it depicted Smart as a man who routinely
isolated male teenagers and then engaged in inappropriate conduct with them, making it more
likely he was guilty of sexually abusing J.P. on the date in question. See People v. Foreman,
2019 IL App 3d 160334, ¶ 31 (“[t]he erroneous admission of other-crimes evidence carries a
high risk of prejudice and will ordinarily require a reversal”). Therefore, we find that defense
counsel’s failure to object and his agreement to stipulate to evidence that he had previously
convinced the trial court to exclude fell below an objective standard of reasonableness.
¶ 23 2. Defense Counsel’s Failure to Object to Evidence About J.P.’s Text Messages to M.T.
and His References to this Testimony
¶ 24 Smart also argues that defense counsel’s performance was deficient because he failed to
object to improper hearsay evidence and repeatedly referenced the same inadmissible hearsay
evidence at trial. The State again argues that defense counsel’s decisions were strategic.
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¶ 25 The State filed a motion in limine “regarding excited utterance” but withdrew it before
trial. Although defense counsel requested a hearing on the motion, the court determined one was
unnecessary because the State had already withdrawn its motion. In his opening argument,
defense counsel argued that the evidence would be insufficient to convict Smart because there
was “no prompt complaint” by J.P. He stated, “I’m assuming that by withdrawing [its motion,
the State is] saying that *** the complaint that [J.P.] made to [M.T.] was not a prompt
complaint.” He explained that J.P. had apparently sent a text message to his friend, M.T., the
morning after the alleged assault and told her that Smart had sexually assaulted him. Defense
counsel argued that because text messages are “the most egregious hearsay,” any alleged texts
J.P. sent were inadmissible. The court interrupted defense counsel and encouraged him to move
on, reminding him that opening arguments are “designed to present what you think the evidence
will show[,] not make closing argument.”
¶ 26 During direct examination, the State asked J.P. what he did the morning after the alleged
assault. J.P. said he texted his friend M.T. “everything that happened.” When the State asked J.P.
why he chose to text M.T. instead of call, he said that it was because Smart was still in the room
with him, and he did not want Smart to know that he knew “[w]hat happened the night before.”
The State then asked J.P. if he had a “personal plan” for the next day, because he was supposed
to spend the day at the museum with Smart and his nephews. J.P. testified that he and his friend
M.T. “came up with a safe word and if I texted her that that means that something progressed or
something didn’t progress *** we decided I had to hang with the kids so if the kids would go in
the ball pit I would go in the ball pit with them, anything to not leave me alone with [Smart].”
J.P. testified that on the way home from the museum, Smart’s car was breaking down, and he
9 No. 1-22-0427
continued to text M.T. “I hope the car breaks down so I don’t have to go back to [Smart’s]
house.” Defense counsel did not object to any of the State’s questions or to J.P.’s responses.
¶ 27 During cross-examination, defense counsel questioned J.P. about the texts he sent to M.T,
asking if he was “texting about [Smart] who was laying next to you?” J.P. confirmed that he was.
¶ 28 During closing arguments, the State said it was “significant” that J.P. testified that he
“sent a text message to [his] friend” M.T. the morning after the assault and “detailed what
happened *** the night before.”
¶ 29 Despite J.P.’s testimony about the text messages, the court found “there was no
immediate outcry” because J.P. did not report the alleged assault to his sister, mother, or the
police until several months later. The court said that “in terms of proof beyond a reasonable
doubt, [J.P.’s] failure to make an immediate outcry puts this case in a little different posture.”
The court noted that “we don’t have any physical evidence in this case,” and J.P.’s failure to
outcry “until months later, does raise questions.”
¶ 30 In response, the State argued that “we do have immediate outcry. I wasn’t allowed by law
because [J.P.] was over 13 to get into the contents of that outcry, but he tells [M.T.] from the bed
immediately [what Smart had done to him].” The State added that J.P. texted M.T “a couple of
hours after having been sexually assaulted *** over and over again during the night.”
¶ 31 Defense counsel argued in response that there was “no valid legal outcry or complaint in
this instance when there was ample opportunity to do so” and that when J.P. did “apparently
mention t[he] incident to anyone, it’s by way of a text, which is *** inherently objectionable
[hearsay] because it allows time for the declarant or the texter to reflect and to invent.”
¶ 32 “Hearsay evidence is testimony regarding an out-of-court statement offered to prove the
truth of the matters asserted.” People v. Cook, 2018 IL App (1st) 142134, ¶ 30. The term
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“ ‘matters asserted’ ” includes those directly expressed and those the declarant “ necessarily
implicitly intended to express.’ ” (Emphasis in original.) Id. (quoting Michael H. Graham, Cleary
and Graham’s Handbook of Illinois Evidence § 801.1, at 635-36 (6th ed. 1994)). “Unless hearsay
falls within an exception to the hearsay rule, it is generally inadmissible due to its lack of
reliability and the inability of the opposing party to confront the declarant.” Id. ¶ 31.
¶ 33 “It is the general rule that a witness may not testify as to statements she made out of court
for the purpose of corroborating her testimony given at trial.” People v. Davis, 130 Ill. App. 3d
41, 54 (1984) (finding it was reversible error to admit a victim’s prior consistent statements that
after the crime, she told a friend, her mother, and a police officer she had been robbed and
beaten); People v. Williams, 228 Ill. App. 3d 981, 1007-08 (1992) (finding it was error to admit a
witness’s prior consistent statement—that he “t[old] those police the same thing [he was] telling
this jury” (internal quotation marks omitted)—because it corroborated the witness’s testimony on
direct exam); People v. Henderson, 142 Ill. 2d 258, 310-11 (1990) (finding it was error to admit
a witness’s prior consistent statement because it was “possible” the jury saw the witness as
“more credible because he said he had given the police the same account four days after the
murder, and people are more apt to believe what is repeated”).
¶ 34 In this case, J.P.’s testimony—that he texted M.T. about “everything that happened” with
Smart the morning after the alleged assault and that he and M.T. came up with a “safe word” and
a “personal plan” so that he could avoid being alone with Smart the next day—was inadmissible
hearsay because it was offered by the State to establish that J.P. had “detailed” the sexual assault
to M.T. the morning after it occurred. The State argues that J.P.’s testimony about the text
messages was not hearsay at all, because there “was nothing about what was actually in those
texts” and “there was nothing elicited as to what ‘happened’ to J.P.” But this ignores the fact that
11 No. 1-22-0427
just prior to the State’s questions about the text messages, J.P. had described, in detail, the sexual
assault by Smart. Therefore, J.P.’s testimony about the text messages he sent to M.T., which
communicated to the court that he told M.T. “everything that happened” about the sexual assault
right after it occurred, was inadmissible hearsay. This testimony was elicited by the State on
direct examination and was offered for its truth, as evinced by the prosecutor’s closing argument,
where she argued it was “significant” that J.P. testified that he “sent a text message to [his]
friend” M.T. the morning after the assault and “detailed what happened *** the night before.”
¶ 35 Nor were J.P.’s statements admissible under the limited exception to the hearsay rule for
prior consistent statements. See People v. Donegan, 2012 IL App (1st) 102325, ¶ 52 (“[t]he
general rule is that prior consistent statements of a witness are inadmissible for the purpose of
corroborating the witness’s trial testimony, because they serve to unfairly enhance the credibility
of the witness”). J.P.’s testimony about the text messages was not offered by the State for
rehabilitative purposes and instead was used by the State during its direct examination of J.P. to
improperly bolster and lend credibility to his trial testimony. See People v. Denis, 2018 IL App
(1st) 151892, ¶ 80 (finding that a witness’s prior consistent statements should not have been
admitted into evidence because the testimony “was not elicited to rebut a charge of recent
fabrication or an inference that [the witness] was motivated to testify falsely” and instead was
elicited on direct examination to enhance the witness’s credibility (emphasis in original)).
¶ 36 The State argues that defense counsel’s failure to object to testimony about the text
messages and his decision to talk about the texts messages at trial was a “strategic move,”
because it “point[ed] out that J.P. did not text his sister, who lived in the same city,” someone
who could have “physically help[ed] him in that moment” but instead texted his friend M.T.,
who lived hundreds of miles away. But defense counsel could have made those very arguments
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without any reference to the damaging text messages. We can see no reason why defense counsel
did not object to—and even elicited—additional information about the contents of J.P.’s text
messages to M.T. when these messages bolstered J.P.’s credibility at trial by confirming that he
told M.T. about the sexual assault just hours after the attack and evinced his desperation to avoid
being alone with Smart again. For these reasons, we find defense counsel’s performance was
deficient. See People v. Levesque, 256 Ill. App. 3d 639, 644 (1993) (“not every decision of
counsel, no matter how misguided, may be swept under the boundless rug of ‘trial strategy’ ”).
¶ 37 B. Smart Was Prejudiced by Counsel’s Deficient Performance
¶ 38 We turn now to the question of prejudice. Under the second part of the Strickland test, a
defendant must show that he was prejudiced by defense counsel’s mistakes. Strickland, 466 U.S.
at 687. “Prejudice exists where there is a reasonable probability that but for counsel’s deficient
performance, the result of the proceeding would have been different.” People v. Moore, 356 Ill.
App. 3d 117, 121 (2005) (citing Strickland, 466 U.S. at 694). A “reasonable probability” is a
probability sufficient to undermine confidence in the outcome of the proceedings. Strickland,
466 U.S. at 694.
¶ 39 Smart argues that defense counsel’s deficient performance prejudiced him, requiring
reversal and remand for a new trial. The State counters that even if defense counsel’s
performance was deficient, any errors were harmless. The State relies heavily upon the
presumption that in a bench trial, the court “consider[s] only competent evidence in reaching its
finding” (People v. Naylor, 229 Ill. 2d 584, 603 (2008)) and contends that because the court
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made “zero mention” of other acts evidence, of a “pattern,” or of J.P.’s text messages to M.T. in
reaching its decision, there was no prejudice here.
¶ 40 In its review of our earlier decision, our supreme court found that the trial court’s
decision to admit evidence of the June 2018 incident where Smart touched the buttocks of a
Breakthrough student was improper but concluded that any error was harmless because the case
was a bench trial and the trial judge “did not refer to the evidence of other misconduct at all in
her summary of the evidence supporting the convictions.” Smart, 2025 IL 130127, ¶ 104. In
dissent, Justice O’Brien found there was “a reasonable probability [Smart] would have been
acquitted absent the admission of the prior misconduct evidence” (id. ¶ 125 (O’Brien, J.,
dissenting, joined by Cunningham, J.)), reasoning that because the trial court admitted the
improper other acts evidence over Smart’s objection and denied his motion for a new trial based
on the admission of the same evidence, this demonstrated the trial court’s belief that “the
inadmissible evidence could properly be considered when determining defendant’s guilt,” which
“rebut[ed] the general principle that the trial court in a bench trial is presumed to disregard
improperly admitted evidence.” Id. ¶¶ 119, 120.
¶ 41 Although the trial court did not expressly reference any of the improperly admitted other-
crimes evidence when announcing its decision, the 2012 Sterling College incident, the March
2018 Breakthrough incident, and the June 2018 butt-touching incident permeated Smart’s trial
and were highly prejudicial because they depicted Smart as a man who routinely used his
position of authority to isolate teenage young men. See People v. Donoho, 204 Ill. 2d 159, 170
(2003) (other-crimes evidence is highly prejudicial because it risks suggesting the disfavored
notion that, because a person has committed other similar crimes, he or she is more likely to have
committed the crime question); Foreman, 2019 IL App (3d) 160334, ¶ 31 (the improper
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admission of other-crimes evidence carries a high risk of prejudice and “will ordinarily require a
reversal” (citing People v. Cortes, 181 Ill. 2d 249, 285 (1998))). The State referenced this other
acts evidence when it cross-examined Frank and Muzikowski, asking if they were “aware of the
fact that [Smart] was reprimanded for being alone with a student and drinking with a student
when he was an employee at Sterling College in Kansas?” The State then questioned Smart
about the 2012 incident, asking, “What happened at Sterling College?” It also asked Smart about
the incidents that resulted in his termination from Breakthrough. Our supreme court did not
consider the effect of these improper cross-examination questions in its prejudice analysis
because it found that Smart forfeited the issue by failing to object to these questions at trial.
Smart, 2025 IL 130127, ¶ 77. However, it was defense counsel’s failure to object to this other
acts evidence, coupled with evidence of the June 2018 butt-touching incident, that allowed the
State to argue during closing argument that Smart had “a pattern of taking jobs that put him
around children in places where he can be alone with children and ingratiate himself to children
and their families so that he can be alone with them and then abuse them.” After the court voiced
its concerns about the strength of the State’s case, the State argued, “Judge, you have enough.
You have enough to find the defendant guilty. You should find the defendant guilty. The
defendant has engaged in a pattern of abuse against boys, it culminated in him raping [J.P.].”
¶ 42 In a case that turned solely on the credibility of Smart and J.P., where there was no
physical evidence and there were no other eyewitnesses, J.P.’s credibility was critically
important. The State’s repeated references to the other-acts evidence during trial and its reliance
upon Smart’s prior acts to argue there was a “pattern of abuse against boys” during closing
argument cast doubt on Smart’s testimony that he never touched J.P. and gave credence to J.P.’s
testimony. Cf. Hampton, 2021 IL App (5th) 170341, ¶ 77-78 (finding no prejudice where the
15 No. 1-22-0427
State’s failure to “cross-examine the defendant about his other charges or mention them during
closing argument” tended “to mitigate the prejudicial effects of other-crimes evidence,”
especially when the evidence of defendant’s guilt was overwhelming).
¶ 43 While the court did not reference J.P.’s text messages to M.T. when announcing its
decision either, these text messages also permeated Smart’s trial and improperly bolstered J.P.’s
in-court testimony. See, e.g., People v. Tidwell, 88 Ill. App. 3d 808, 810-11 (1980) (finding that
the admission of a witness’s out-of-court testimony, which “paralleled” his in-court testimony,
was not harmless, because it “impl[ied] that the witness’s court testimony [was] true because he
told the same story on a previous occasion”). After the trial court expressed its skepticism of the
State’s case because “no outcry was made [by J.P.] until months later” and indicated that this
“raise[d] questions,” the State argued that it was “significant” that J.P. texted M.T. just “a couple
of hours after having been sexually assaulted,” and relied upon the text messages to argue “we
do have immediate outcry” because J.P. “detailed what happened *** the night before” in these
messages to M.T. After the State made its closing argument, the court acknowledged that the
State’s case “rises and falls with the testimony of [J.P.].”
¶ 44 “Where guilt or innocence depends entirely on the credibility of an accuser and the
defendant, no error should be permitted to intervene.” People v. Emerson, 97 Ill. 2d 487, 502
(1983). The State’s repeated references to highly prejudicial other acts evidence undermined
Smart’s credibility, and its references to J.P.’s text messages to M.T. bolstered J.P.’s version of
events. Defense counsel failed to object to the State’s improper questions or the witnesses’
answers, stipulated to highly prejudicial prior acts evidence that he had previously fought to
exclude, and then elicited further testimony about these multiple lines of inadmissible evidence.
Although the court did not say it relied on this evidence when announcing its decision, it allowed
16 No. 1-22-0427
the evidence to be admitted at trial in contravention of its own prior rulings, denied Smart’s
motion for a new trial based in part on its erroneous admission of prior acts evidence, expressly
stating that the State’s motion to allow proof of other crimes was “properly granted and complied
with”, and did not say that the improper evidence did not factor into its decision. Cf. People v.
Oglesby, 2016 IL App (1st) 141477, ¶ 261 (finding that the defendant failed to rebut the
presumption that the trial judge considered only properly admitted evidence where the trial court
“expressly indicated” that it considered the inspector general’s testimony solely to explain the
steps of his investigation, and not for an impermissible purpose); People v. Brajcki, 150 Ill. App.
3d 506, 515 (1986) (the defendant failed to rebut the presumption that the trial court considered
only proper evidence, finding it “significant that the court specifically disclaimed reliance on any
evidence of alcoholic intoxication”); People v. Quintero, 2023 IL App (3d) 200302-U, ¶¶ 69, 71,
74 (holding that the erroneous admission of other-acts evidence was harmless in a bench trial
where the evidence was not a “focal point” of the trial, where the trial court never mentioned it,
and where the court “expressly stated that its guilty finding was based on [one witness’s]
credibility,” and that “[e]ven without [the other acts evidence], there is no reasonable likelihood
that defendant would have been acquitted”).
¶ 45 Although there is a presumption that the court in a bench trial disregards inadmissible
evidence, this presumption is a rebuttable one. Naylor, 229 Ill. 2d at 603-04. At a certain point,
the presumption can no longer be indulged. In the seminal case of People v. Nuccio, 43 Ill. 2d
375, 394 (1969), our supreme court grappled with the “vexing question” of whether a “pattern of
prejudicial and unsupported insinuations [by the State during cross examination of defense
witnesses] which would, without question, necessitate a new trial had this case been heard by a
jury, *** requires the same result in a bench trial.” After a bench trial, the defendant police
17 No. 1-22-0427
officer was convicted of murdering a young man and conflicting testimony had been presented as
to whether the young man had thrown a knife at the defendant before the shooting occurred. Id.
at 376, 379-80. At trial, the prosecutor made “unsupported insinuations of a general pattern of
misconduct on the part of the defendant and the two main defense witnesses” when cross-
examining them, leading to inferences that the defendant “often intimidated and chastised the
youths [including the victim] *** and that the defendant may therefore have been pursuing a
general pattern of indiscriminate abuse when he shot [the victim]” and that the defendant and his
witnesses had been guilty of perjury in a case involving another young man from the same area.
Id. at 383. On appeal, the defendant argued that the prosecutor’s improper questioning of him
and his witnesses deprived him of a fair trial. Id. at 376. After finding that the prosecutor’s
questions were improper, our supreme court turned to the question of prejudice. Id. at 383. It
stated:
“The rule [that judges are presumed to disregard inadmissible evidence] as generally
applied is a sound one. But there are, it seems to us, limits to the immunity to improper
and prejudicial insinuations which judges are presumed to possess. Stripped of the haze
created by the innuendoes, the shooting here was either done by an officer who was the
target of a knife being thrown at him *** as described by defendant and his witnesses, or
it was the wanton killing testified to by the State’s witnesses. Where, as here, the guilt of
the accused is not manifest, but is dependent upon the degree of credibility accorded by
the trier of fact to his testimony and that of the witnesses who testify on his behalf, and
there appear in the record substantial numbers of unsupported insinuations which, if
considered, could have seriously impeached the credibility of the defendant and his
witnesses, and there is no indication of the court’s awareness of this impropriety even
18 No. 1-22-0427
though it is brought to his attention, it is our opinion that justice and fundamental fairness
demand that the defendant be afforded a new trial free from such prejudicial
misconduct.” Id. at 396.
¶ 46 After considering the cumulative effect of the admission of the other acts evidence—
some of which was brought to the court’s attention—as well as the text messages here, we find
there is a “reasonable probability that, absent [defense counsel’s] errors, the factfinder would
have had a reasonable doubt respecting guilt.” Strickland, 466 U.S. at 695. See, e.g., Martin v.
Grosshans, 424 F.3d 588, 592 (7th Cir. 2005) (concluding that reversal was required based on
ineffective assistance of counsel when it was “a close case that turned almost exclusively on
whether the jury believed [the defendant] or [the victim],” the credibility of the two “would have
been of utmost importance to the jury,” and a witness’s “irrelevant and [highly] prejudicial
testimony undercut [the defendant’s] credibility”); People v. Lucious, 2016 IL App (1st) 141127,
¶ 45) (“prejudice may be found even when the chance that minimally competent counsel would
have won an acquittal is ‘significantly less than 50 percent’ ” (quoting People v. McCarter, 385
Ill. App. 3d 919, 935 (2008))). Because this evidence permeated Smart’s trial from start to finish,
we are not confident that it did not factor into the court’s determination of guilt, especially where
the court allowed evidence regarding the June 2018 incident, found that J.P.’s testimony was not
credible to sustain a conviction on one of the three counts, and then denied Smart’s posttrial
motion in which he argued that other acts evidence was improperly admitted. Nuccio, 43 Ill. 2d
at 396 (finding a new trial was warranted where there was “no indication of the court’s
awareness of [the State’s] impropriety even though it is brought to his attention”). Accordingly,
19 No. 1-22-0427
we find that defense counsel’s deficient performance prejudiced Smart and that reversal and
remand for a new trial is required.
¶ 47 III. CONCLUSION
¶ 48 For the foregoing reasons, the judgment of the trial court is reversed and remanded for a
new trial.
¶ 49 Reversed and remanded.
¶ 50 JUSTICE MIKVA, dissenting:
¶ 51 Prior to remand from our supreme court, I joined the majority in concluding that Mr.
Smart’s conviction should be reversed based on the trial judge’s erroneous admission of
evidence. That evidence was a stipulation regarding an incident on June 12, 2018, where Mr.
Smart had driven a male teenage student home alone, in violation of his then employer’s
company policy, grabbed the student’s buttocks, and was terminated shortly afterwards.
¶ 52 Our supreme court reversed our previous decision. While it agreed that the admission of
this evidence was an error, it found that error to be harmless, holding that “the State ha[d] met its
burden of showing there was no reasonable probability that [Mr.] Smart would have achieved a
better result without the error.” People v. Smart, 2025 IL 130127, ¶ 110.
¶ 53 Our supreme court’s harmless error analysis in this case rested on People v. Naylor, 229
Ill. 2d 584, 603 (2008), in which the court had previously held that, “when a trial court is the trier
of fact a reviewing court presumes that the trial court considered only admissible evidence and
disregarded inadmissible evidence in reaching its conclusion.” While the supreme court
acknowledged in this case that the presumption can be rebutted, it held that the presumption was
not rebutted by Mr. Smart here because Mr. Smart’s “inadmissible acts of misconduct were not a
material factor in the [trial] court’s decision.” Smart, 2025 IL 130127, ¶ 106.
20 No. 1-22-0427
¶ 54 We were well aware of Naylor when we issued our initial decision in this case. We
concluded that the presumption that the trial judge in this case did not consider this inadmissible
evidence was rebutted by the fact that the trial judge, after considering an objection to the evidence
and the argument of the parties, specifically found evidence of the June 12, 2018, incident to be
admissible. People v. Smart, 2023 IL App (1st) 220427, ¶ 37. This was precisely the situation in
Naylor, where the presumption that a judge in a bench trial considers only admissible evidence
was also found to be rebutted by the trial court’s ruling that improper evidence was admissible.
Naylor, 229 Ill. 2d at 605. The dissenting supreme court justices in this case agreed with us, noting
that:
“With the trial court having initially admitted the improper evidence over defendant’s
objection and then proceeding to erroneously deny defendant’s posttrial motion on the
matter, we can only conclude that the trial court believed the inadmissible evidence could
properly be considered when determining defendant’s guilt.” Smart, 2025 IL 130127, ¶ 120
(O’Brien, J., dissenting, joined by Cunningham, J.)).
¶ 55 Now, on remand, the majority again reverses, finding Mr. Smart’s trial counsel ineffective
for failing to object to evidence of other past acts that the trial court had already ruled inadmissible
and to text messages, which the majority concludes were inadmissible as consistent out-of-court
statements. As the majority recognizes, this failure by trial counsel to object—assuming it rises to
the level of unreasonable assistance—requires reversal only if Mr. Smart is able to show prejudice
or a “reasonable probability” that but for counsel’s deficient performance, the result would have
been different. Supra ¶ 36.
¶ 56 In our first decision, the burden was on the State to show harmless error, but now the burden
is on Mr. Smart to make a showing of prejudice. Our supreme court has already held that we must
21 No. 1-22-0427
presume the trial court did not consider the inadmissible evidence of the June 12, 2018, incident,
even though the trial court specifically ruled that that evidence was admissible. With all due respect
to the majority’s careful analysis, given our supreme court’s clarifications regarding the strength
of the presumption that we must make in this case, I simply do not agree that Mr. Smart has
overcome it.
¶ 57 As the majority acknowledges, the trial court never mentioned any of this evidence that the
majority finds trial counsel should have objected to. None of this evidence was cited by the trial
court or incorporated into its decision. More significantly, an objection by trial counsel to any of
this evidence was almost certain to have had no impact on the outcome of this case.
¶ 58 The first failure on the part of trial counsel that the majority points to was Mr. Smart’s
lawyer’s stipulation to and failure to object to questions or testimony referencing previously
excluded prior acts. Supra ¶¶ 14-21. However, the trial court had already ruled that evidence of
those prior acts was inadmissible. Certainly, given the strong presumption of Naylor, we are
entitled to assume that the trial court adhered to its own prior ruling and did not consider this
evidence. Trial counsel may well have concluded the same, choosing not to bring a matter to the
court’s attention that it had already decided.
¶ 59 The only other failure by trial counsel that the majority points to was counsel’s failure to
object to J.P. testifying about text messages he sent to his friend. Supra ¶¶ 22-34. J.P. testified that
he texted his friend “everything that happened.” The substance of the texts themselves was never
put into evidence, and the friend was not called as a witness. The majority views this reference to
the victim’s texts as the impermissible admission of a prior consistent statement. The State
contends that these are not out-of-court statements because nothing of the substance of what was
in the texts was admitted. I believe the State’s argument has merit, and an objection could have
22 No. 1-22-0427
been properly overruled. But even assuming that the testimony regarding the text messages was
improper, as our supreme court has recognized similar circumstances,
“the prejudicial effect of this testimony was minimized by the fact that, unlike some cases
relied upon by defendant where one witness corroborated another’s testimony by testifying
that the other made a prior consistent statement, here [the victim] himself provided the
evidence of his own prior consistent statement, and so his credibility was not truly
enhanced.” People v. Henderson, 142 Ill. 2d 258, 311 (1990).
Indeed, even in Henderson, which the majority relies on here, the supreme court refused to find
that a failure to object to the admission of a “prior consistent” statement would support a claim for
ineffective assistance of counsel in a jury trial. Id. at 311-12.
¶ 60 In asking us to reverse this conviction on the basis of ineffective assistance of counsel, Mr.
Smart has the burden of demonstrating that, had trial counsel objected to some or all of this
evidence, there is a reasonable probability that the trial judge, as the finder of fact, would have
acquitted him. To make this showing, Mr. Smart must overcome the strong presumption that, in a
bench trial, the court considers only admissible evidence. I simply do not agree that this showing
has been made or that the majority’s decision is in accordance with the mandate of our supreme
court.
23 No. 1-22-0427
People v. Smart, 2025 IL App (1st) 220427-B
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 19-CR- 14458; the Hon. Carol M. Howard, Judge, presiding.
Attorneys James E. Chadd, Douglas R. Hoff, Kathleen M. Flynn, and Kara for Kurland, of State Appellate Defender’s Office, of Chicago, for Appellant: appellant.
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique for Abraham, Mary L. Boland, and Whitney Bond, Assistant State’s Appellee: Attorneys, of counsel), for the People.