NOTICE 2025 IL App (5th) 230402-U NOTICE Decision filed 07/21/25. The This order was filed under text of this decision may be NO. 5-23-0402 Supreme Court Rule 23 and is changed or corrected prior to the filing of a Petition for not precedent except in the
Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1). APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Champaign County. ) v. ) No. 20-CF-343 ) JOSH STOVER, ) Honorable ) Randall B. Rosenbaum, Defendant-Appellant. ) Judge, presiding. _____________________________________________________________________________
PRESIDING JUSTICE McHANEY delivered the judgment of the court. Justices Moore and Vaughan concurred in the judgment.
ORDER
¶1 Held: Plain error review of defendant’s forfeited claims was not warranted where the record demonstrated no error in prosecutor’s rebuttal closing argument.
¶2 Following a jury trial, the defendant, Josh A. Stover, was convicted of two counts of
aggravated criminal sexual abuse (720 ILCS 5/11-1.60(d) (West 2022)) and was sentenced to
seven years in the Illinois Department of Corrections followed by one year of mandatory
supervised release. The defendant appeals his conviction, arguing his case should be remanded for
a new trial where in rebuttal closing argument the prosecutor (1) vouched for the credibility of the
State’s witnesses, (2) shifted the burden of proof to the defense, (3) misstated the evidence, and
(4) asserted facts not in evidence. Alternatively, the defendant argues that trial counsel was
ineffective for failure to preserve the record. For the reasons that follow, we affirm.
1 ¶3 I. BACKGROUND
¶4 In March 2020, the defendant was charged with four counts of aggravated criminal sexual
abuse against his 13-year-old daughter, S.S-F. At trial, the State proceeded on counts III and IV,
and the jury found him guilty of those counts. Count III alleged the defendant touched S.S-F.’s
breasts and count IV alleged he touched her vagina with his hand. Both counts alleged that S.S-F.
was under 17 years old and that she was under the influence of alcohol at the time of the incident.
In May 2022, the State filed two additional charges for criminal sexual assault, alleging the
defendant placed his penis against S.S-F.’s lips. The State proceeded to trial on one of those counts,
and the jury found him not guilty of that count.
¶5 A. Jury Trial
¶6 The following evidence was adduced at trial. S.S-F. testified that in March of 2020, she
was 13 years old and lived with her father and his girlfriend, Julianna Burton. In early March, the
defendant and Burton broke up, but Burton was still allowed to stay at the house. On March 5,
2020, S.S-F. missed the school bus and stayed home with Burton. After the defendant and Burton
argued about the situation, she and Burton stayed elsewhere for the night and returned to their
home the next day.
¶7 When they returned to the house, the defendant was drinking alcohol, and he and Burton
fought about her continuing to live at the house. The defendant decided to go to a hotel for the
night and asked S.S-F. to come with him, telling her she could invite friends to join them. The
defendant’s friend, C.J., drove the defendant and S.S-F. to a hotel. The defendant brought Bud
Light and Twisted Tea alcohol to drink. After the defendant and S.S-F. checked into the hotel and
went to their room, C.J. joined them but left shortly thereafter. S.S-F.’s mother came to the hotel
and took S.S-F. to Walmart where she purchased a phone charger for the defendant, chips, and
2 underwear. S.S-F. then went back to the hotel, stayed in the common area for a while, and then
went back to her room.
¶8 When she arrived, the defendant was in the room drinking alcohol and gave S.S-F. a
Twisted Tea, but she did not like it so she did not drink much. Between 7:30 and 9 p.m., the
defendant drank more than one alcoholic beverage, but S.S-F. was not sure if he drank more than
five. S.S-F. invited friends to the hotel but only her friend H.L., who was 16 years old, agreed to
join her. H.L. was the brother of S.S-F.’s best friend, and S.S-F. wanted to date him. H.L. asked
the defendant if the two could date, but her father would not allow them to do so because H.L. was
too old for her. H.L. arrived around 9 p.m., and S.S-F. and H.L. went to the pool area of the hotel
and sat in the hot tub until approximately 10 p.m. when it closed. The defendant went to the pool
area around closing time, and the three went back to the hotel room.
¶9 At some point, H.L. drove the defendant and S.S-F. to Circle K where the defendant
purchased Fireball Whisky and Mike’s Harder Lemonade. When they got back to the hotel, the
defendant and S.S-F. continued to drink, but H.L. did not drink any alcohol. The defendant and
H.L. were wrestling around. At one point, the defendant picked up S.S-F. and threw her, causing
her to hit the air conditioner which made a loud noise.
¶ 10 The defendant and S.S-F. invited H.L. to spend the night in the room with them, but H.L.’s
father would not allow him to stay so he left the hotel around 11:30 p.m. S.S-F. walked him outside
to his car and then returned to the hotel room. Approximately 10 minutes later, the defendant left
the hotel room, but S.S-F. did not know where he went. S.S-F. then drank part of a can of Mike’s
Hard Lemonade and took one more shot of Fireball Whisky. She estimated that she drank two
shots of Fireball that night. Around 12:50 a.m., she was sitting on the floor between the two beds
in the hotel room when she posted a short video to her Snapchat account. In the video, which was
3 admitted into evidence and shown to the jury, S.S-F. said “drunk log one,” and she stated it was
12:50. The video then cut out. S.S-F. fell asleep on the floor, fully clothed.
¶ 11 The next thing S.S-F. remembered was waking up on and off to the defendant touching her
in his bed. S.S-F. was coming in and out of consciousness and was no longer dressed. S.S-F.
testified that the defendant tried to “finger me, eat me out, put his penis in my mouth and touch
my breasts.” At 4 a.m., S.S-F. fully awoke in her father’s bed with the defendant on top of her. She
ran to the bathroom, locked herself in, and yelled, “What the fuck are you doing? I’m your fucking
daughter.”
¶ 12 S.S-F. called H.L. and told him she had woken up naked in the defendant’s bed, and he
was trying to have sex with her. She and H.L. called each other and spoke several times, and she
asked H.L. to pick her up because she was uncomfortable. The defendant was outside the bathroom
door telling her he would give her money and that she was allowed to date H.L. if she did not tell
anyone what happened. The defendant also said the incident was S.S-F.’s fault and that the
defendant was going to live with his father who had already passed away. The defendant eventually
left.
¶ 13 On direct examination, S.S-F. was questioned about what happened after the defendant
left. The following colloquy occurred:
“Q. And, so you’re back in, in the bathroom. He’s left. You’re on and off the phone
with [H.L.]. Is there anything you did while you were in the bathroom?
A. I took a bath.
Q. And, just to be clear, shower or bath?
A. Bath.
Q. Okay. And, when you got in the bath, did you fill it with soap? Were you—or
what was going on? 4 A. No. I just sat in the water.
Q. Okay. Why did you take a bath?
A. ‘Cause I felt gross.
***
Q. Did you eventually—did you stay awake this whole time, or, or what happened
while you were in the tub?
A. I fell asleep in the bathtub.”
S.S-F. testified she woke up later and slept in a bed.
¶ 14 Eventually, H.L. arrived at the hotel with a friend and picked up S.S-F. After the defendant
left the hotel, he called S.S-F. to ask if she wanted him to leave her money at the front desk or
bring it to the room. S.S-F. responded that he should leave the money at the front desk. While
checking out of the hotel, a hotel employee gave H.L. an envelope containing $40, which he
handed to S.S-F. He then drove his friend home and took S.S-F. to her house and went inside with
her. Burton and one of S.S-F.’s friends were at the house when she arrived. At some point, the
defendant tried unsuccessfully to get into the house. He was able to throw his phone and wallet
inside an open window, and then he left.
¶ 15 Burton called the police. When the ambulance arrived, S.S-F. spoke with EMT Julieann
Marie Roark. Roark testified that S.S-F. was 13 years old. She first spoke with S.S-F. in the home
but then she decided to move to a private setting and took S.S-F. to the ambulance. Roark described
S.S-F.’s demeanor as very quiet. She was reserved and spoke in broken-up sentences. Roark
testified that S.S-F. “definitely appeared to be in a state of shock, emotional shock.” S.S-F. reported
to Roark that she had been digitally penetrated, that the defendant tried to “go down on her and
also tried to stick his penis in her mouth.” Roark took S.S-F. to Carle Foundation Hospital.
5 ¶ 16 At the hospital, S.S-F. was examined by a nurse. S.S-F. wrote down what the defendant
had done to her. The note she wrote stated, “fingering me and touching my boobs.” S.S-F. was
upset and felt terrified and gross at the hospital. A few days later, S.S-F. was interviewed at the
Children’s Advocacy Center (CAC). She did not remember what she told the interviewer.
¶ 17 In December 2022, S.S-F. spoke with Detective Matthew Bross and a prosecutor. She told
them “[t]hat he had tried to finger me, eat me out, put his penis in my mouth and touch my breasts.”
S.S-F. acknowledged that her statements differed. S.S-F. explained that she did not feel
comfortable telling certain people certain facts. She also testified that she did not call the police at
the hotel because she did not trust them. She asserted that her testimony was true, and she
remembered the defendant touching her breasts and vagina and pressing his penis against her lips.
S.S-F. did not remember that she told the hospital nurse and the interviewer at the CAC that the
defendant only touched the outside of her vagina. S.S-F. denied fabricating the accusations because
she was angry at the defendant for refusing to allow her to date H.L. After the incident, S.S-F. and
H.L. dated for three months, and the two were still friends at the time of trial.
¶ 18 H.L. testified similarly to S.S-F. about the incident and asserted that the State’s attorney
never told him what to say. He testified that he had asked the defendant several times if he could
date S.S-F., but the defendant refused. H.L. denied that his testimony was a result of the
defendant’s refusal to let him date S.S-F.
¶ 19 H.L. testified that on March 6, 2020, he arrived at the hotel around 9 p.m. to visit S.S-F.
and the defendant. To his knowledge, he did not believe S.S-F. had been drinking before he arrived.
He went to the pool area with S.S-F. and then drove all three of them to Circle K. He was not
flirting with or kissing or holding S.S-F.’s hands. Back in the hotel room, the defendant gave S.S-
F. alcohol, but H.L. did not drink because he had to drive. H.L. saw S.S-F. drink some Twisted
Tea, but he did not remember how much. He did not remember if he told the police that he thought 6 S.S-F. only drank a couple of sips because she did not like the drink. H.L. did not recall the
defendant giving S.S-F. the option to have one sip of alcohol.
¶ 20 H.L. and the defendant wrestled around, and at some point, the defendant threw S.S-F. into
the air conditioner, causing a noise. During this time, the defendant grabbed S.S-F.’s butt and
breasts two to three times each, saying “I made it, so I can touch it.” S.S-F. did not appear to be
comfortable when the defendant grabbed her.
¶ 21 H.L. left the hotel around 11:15 p.m. At 4:02 a.m., he was awakened by a phone call from
S.S-F. She told him that she was calling him from the hotel bathroom. She also told him that she
woke up naked with the defendant on top of her and that he had tried to rape her. S.S-F. asked H.L.
to pick her up but his father told him it was too early to leave. Following the first call, H.L. and
S.S-F. spoke on the phone multiple times. During one call, H.L. heard a male voice outside S.S-
F.’s bathroom.
¶ 22 H.L. went to the hotel at 11 a.m. with a friend to pick up S.S-F. After he drove his friend
home, he and S.S-F. went to her house. When the defendant arrived at the house, he could not get
inside, so he threw his phone and wallet into an open window. Burton then called the police and
an EMT arrived. H.L. spoke to the police and gave them a sheet of paper he had created that
contained a list of phone calls between him and S.S-F.
¶ 23 The parties stipulated that the defendant and S.S-F. stayed in room 322 at the hotel. Johana
Bruens and her mother, Regina Cambre, stayed in the room directly beneath the defendant’s hotel
room on the date in question. They would both testify that throughout the evening of March 6 and
early morning hours of March 7, they heard thuds, banging, and stomping from the defendant’s
room and filed complaints. Around 4 a.m., Bruens and Cambre heard a female say “stop it” and
then Bruens heard the shower start. The parties also stipulated that Wynona Johnson was a guest
in room 320 on the date in question, and she saw a female, approximately 13 years old, spending 7 time with a male, approximately 15 years old, at the hotel’s hot tub around 10 p.m. A male, who
Johnson believed was the female’s father, appeared upset about the teenagers spending time
together.
¶ 24 Frankie Moore testified that she was a sexual assault nurse examiner (SANE) for Carle
Hospital and that she conducted an examination on S.S-F. on March 7, 2020. During the
examination, S.S-F. wrote a note stating that she was digitally penetrated and that the person
touched her breasts. S.S-F. then said, “I don’t honestly remember that much.” S.S-F. told the nurse
that she had bathed after the incident. Moore observed a sign of physical trauma on S.S-F.’s
anatomy, redness on the posterior fourchette, which is a thin piece of skin connecting the labia
minora at the bottom of the vulva and is the area that would be penetrated by fingers, a tongue, or
a penis.
¶ 25 On cross-examination, Moore testified that while redness could occur from sitting in hot
water or a hot tub, she would have expected to see it elsewhere as well not just on the posterior
fourchette. The following colloquy occurred:
“DEFENSE COUNSEL: Okay. But it can come from like sitting down so that that
piece of your body is touching the bottom of a bathtub or a floor; correct?
MOORE: The posterior fourchette doesn’t typically touch where you’re sitting.
DEFENSE COUNSEL: Okay. So, if you, for example, were hunched forward in a
bathtub with your arms wrapped around your knees, certain parts of your vulva, labia, et
cetera, would be touching the floor of the bathtub; correct?
MOORE: It could be.”
¶ 26 On redirect examination, Moore testified that she would not have been able to see the
redness on the posterior fourchette without “traction,” opening up the vaginal area. She saw the
redness in the area that fingers, tongue, or a penis would touch if they penetrated the vagina. Moore 8 collected a vaginal swab where she swabbed the cervix, and a vulvar swab between the labia
minora and labia majora. The swab of the cervix would have taken her approximately four inches
inside the vagina. She testified that the vulvar and vaginal swabs were placed in the same box.
Moore also collected swabs of S.S-F.’s neck, breast, and umbilicus. Moore described S.S-F. as
tearful, withdrawn, and quiet during the exam.
¶ 27 The parties stipulated that the Illinois State Police Forensic Science Lab received a sexual
assault evidence collection kit from the police department along with the defendant’s known
standard and sent those items to Bode Technology in Virginia for analysis. The forensic biologist
analyst found no male DNA in the oral swab of S.S-F. Male DNA was indicated on the vaginal
swab, but due to the presence of high levels of total human DNA compared to the male DNA, the
sample was not processed for STR analysis. The DNA profile on the neck swab was consistent
with a mixture of three or more individuals, including S.S-F. and at least one male contributor.
The DNA profile from the breast swab was consistent with a mixture of two individuals, including
at least one male contributor. The DNA profile from the umbilicus swab was consistent with a
mixture of at least two individuals, S.S-F., who was the major component, and at least one male.
Due to the possibility of allelic dropout, no conclusions could be made on the minor alleles for any
of those swabs.
¶ 28 Forensic scientist Jennifer Aper, who worked at the Illinois State Police Forensic Science
Lab, testified that she received the sexual assault evidence collection kit taken from S.S-F. Aper
explained how DNA was extracted from the samples and described the tests that were conducted.
DNA was extracted from the samples, and Aper profiled the DNA with the YSTR amplification
system. The neck swab had a mixture of DNA from at least three contributors. The major DNA
profile was female and was consistent with S.S-F. Bode lab then determined that the minor DNA
profiles in the neck swab were inconclusive, meaning they could not be certain of the contributors. 9 The breast swab had a mix of two contributors. There was too much uncertainty in the data, so
Bode lab interpreted that mix as inconclusive. The umbilicus swab had a mix of three contributors,
a major female profile which matched S.S-F., and minor DNA profiles that were inconclusive.
¶ 29 Bode lab extracted a quarter of all the vaginal swabs and determined they contained a large
amount of female DNA and a small amount of male DNA. Aper performed YSTR testing on these
swabs, which allowed her to ignore female DNA and target the male component of the sample.
She analyzed the breast swab and detected no results. She profiled two of the vaginal swabs, and
they each contained a complete 23 locus YSTR haplotype that could be used for comparison. The
haplotypes from the two vaginal swabs had the same contributor and would be expected to occur
in one in 2,800 white, unrelated males, one in 2,300 black males, or one in 2,000 unrelated
Hispanic males. One in 2,800 is the highest haplotype frequence you can obtain from YSTR
testing.
¶ 30 On cross-examination, Aper testified that in their YSTR system, they target .3 nanograms
of DNA to obtain a match, but they can get haplotypes from even smaller samples. A nanogram is
one billionth of a gram. The results of the testing revealed that H.L. was excluded as a possible
contributor, but the defendant was not excluded as a possible contributor to the two vaginal swabs.
¶ 31 On cross-examination, Aper testified that “touch” DNA occurs when someone touches an
object, causing skin cells to shed, and leaving DNA on the object. “Transfer” DNA occurs when
DNA transfers from one person to another. And a secondary transfer takes place when someone
touches DNA on an object that another person left behind. “Tertiary” DNA occurs when a person
touches another person and then touches an object, leaving behind the other person’s DNA on the
object. She also testified that people who share the same bed or towel can both leave DNA behind.
On redirect examination, Aper testified that she might anticipate finding transfer DNA on external
surfaces of skin and clothing, but not on swabs collected internally. 10 ¶ 32 Detective Bross testified that he was assigned to investigate the case. During his testimony,
he identified photographs of the defendant’s hotel room, which showed bottles and cans of alcohol
left behind. Videos from the hotel were also played during Bross’s testimony, showing the
defendant and S.S-F. arriving at the hotel; the defendant leaving the hotel; and S.S-F. and H.L.
checking out of the hotel. Bross interviewed the defendant on March 18, 2020. The defendant told
him that on March 5, 2020, he and his ex-girlfriend, Burton, got into an argument and that Burton
then took S.S-F. for the night. On March 6, they argued again, but this time the defendant took
S.S-F. to a hotel and told her that if she came with him, she could invite friends. H.L. visited them
at the hotel. The three went to a gas station where the defendant bought alcohol, flavored vodka,
and then they returned to the hotel. The defendant allowed S.S-F. to drink some alcohol. After
H.L. left, the defendant stated he went to a couple of bars. When he returned to the hotel around
1:30 a.m, the defendant found S.S-F. clothed, asleep on the floor between the hotel beds. The
defendant went to sleep in his bed. At some point, S.S-F. got into bed with him and hugged his
arm, and he fell back to sleep. He was awakened by the slam of a door and S.S-F. yelling at him
through the door. When he tried to have a conversation with her, she told him she was going to
make allegations against him, and that is when he left the hotel. The defendant left $40 for her at
the front desk.
¶ 33 When the defendant returned home, he found himself locked out and was frustrated and
angry. He threw his wallet and phone into the house through an open window. He then drove his
truck to a train embankment to try to kill himself. The defendant told Bross he was tired of S.S-
F.’s and Burton’s behavior. He denied S.S-F.’s sexual assault allegations and said that Burton was
putting these ideas into her head. He also said his DNA would not be found in the sexual assault
kit or on S.S-F.’s clothes.
11 ¶ 34 On cross-examination, Bross testified that H.L. told him that S.S-F. had one sip of Twisted
Tea and stopped drinking it because she did not like it. H.L. also said she had one shot of Fireball
Whisky. S.S-F. told Bross she drank Twisted Tea and Mike’s Hard Lemonade, but she did not like
either so she stopped drinking them. S.S-F. said she consumed Twisted Tea prior to H.L.’s arrival,
a Mike’s Hard Lemonade, and two shots of Fireball Whisky. Bross also acknowledged there were
some inconsistencies in S.S-F.’s account given to the EMT, the SANE nurse, and the interviewer
at the CAC. Bross stated the defendant told him he was staying at the hospital because he tried to
commit suicide. On cross-examination, Bross acknowledged that the hotel sheets, towels, and
carpet were not processed for DNA evidence, nor were S.S-F.’s clothing or underwear. On redirect
examination, Bross testified that no further DNA testing was required because there was no
indication there had been ejaculation. Furthermore, when the officers arrived at the hotel, the staff
was actively cleaning the hotel room because they were unaware of the events that had transpired;
thus, it was possible that the sheets, towels, and other items in the room potentially could have
been touched by hotel staff before the officers arrived. Bross also testified that sexual assault
survivors “are always bringing up different details, so to have the exact statement from beginning
to end would be rare.”
¶ 35 Sheriff’s Deputy Douglas Bialschki testified that on March 7, 2020, he went to the
defendant’s house in response to the sexual assault complaint. When he arrived at the home, he
learned the defendant had left in a maroon Ford Explorer, which Bialschki located 150 yards west
of the nearest county road west of Dewey along a railroad right of way. The Ford was situated at
the base of a large pile of debris. When a second police unit arrived, the defendant exited the
vehicle and walked towards Bialschki. The defendant was bleeding heavily from his mouth and
nose and reported to Bialschki that he tried to kill himself by hitting the large pile of debris.
12 ¶ 36 The defendant’s case consisted of recalling Detective Bross and playing a video of S.S-F.
walking H.L. out of the hotel to his car and then reentering the hotel and waiting for the elevator.
The defendant did not testify.
¶ 37 B. Closing Arguments
¶ 38 Review of the record reveals there are approximately 60 pages of combined closing
arguments by the prosecution and defense counsel. In determining whether comments made during
closing argument were proper, a reviewing court must examine the closing argument in its entirety
and view the complained of remarks in context. People v. Burman, 2013 IL App (2d) 110807,
¶ 25. Thus, to provide the context for our review, we set out a significant portion of closing
arguments below.
¶ 39 During closing, defense counsel argued that S.S-F. provided inconsistent accounts of the
acts the defendant had committed, stating:
“The allegations of what the sexual misconduct they are horrible to listen
to. They’re disturbing to listen to, which is why, when we did our jury selection, I
asked each of you if you thought you could still be fair, even hearing these terrible
things, and I hope that you can be because the inconsistencies between the
statements, they’re not minor. It’s not something that you forget when this happens
to you. And, regardless of how old she was, and, regardless of how she said this
happened, the differences are significant, incredibly significant because they have
gone from the March 7th of 2020 statement where we have multiple forms of oral
sex, penetration, breasts, the whole nine yards, later that same day she tells the
SANE nurse those other things didn’t happen. It was just a touch, a touch, and I
don’t remember anything else. Then, at the CAC, she said the same thing, only
touched on the outside, no penetration.” 13 ¶ 40 Defense counsel then challenged why S.S-F. did not tell the worker at the CAC all the
things that defendant had done to her, arguing:
“And, in particular, I want you to remember that the people who work there,
the people who work at the Children’s Advocacy Center, they are trained
professionals. They know how to talk to kids. They know how to talk to teenagers.
They receive hours and hours and hours of training. They are specialized. She could
not get [S.S-F.] to say the other things that purportedly happened to her, even with
all of that training. *** The question is why could a trained professional whose sole
job is interviewing children to get the truth about what happens to them, why would
she not be able to talk to that person about what happened?”
¶ 41 Defense counsel further suggested that S.S-F. was lying, arguing:
“Again, there’s another statement only a few months ago which has the most
details in it of what we’ve heard, and those details are—they’re not minor. You
know, in, in order for somebody to say oral sex performed by a parent on them, oral
sex forced on you by a parent, digital penetration versus outside of the body,
breasts, neck, these are not minor details. It is not something that just pops up over
time. These are seared into your memory as trauma. And if all of those things did,
in fact, happen, then why are we changing our story so many times?”
¶ 42 In challenging the DNA tests, defense counsel argued:
“You know, there are no other tests done in this case. And I think you heard
Detective Bross say, well, we didn’t think there was any reason to do any other
tests. They didn’t test the sheets. They didn’t test the towels. They didn’t test
14 anything from the room. They didn’t test the alcohol cans. They didn’t test her
clothing. They didn’t test her underwear.”
¶ 43 Defense counsel also argued that the vaginal swabs were not kept separate from one another
in the sexual assault kit and, therefore, DNA from one swab could have been transferred to the
other, stating:
“So think of this—and there’s a million ways transfer can occur. Right now,
as I sit here, I’m touching this table. My DNA is on this table. DNA will survive
water. It will survive a washing machine. So, if you put DNA through a washing
machine, it’s still gonna pop up when that’s done.”
¶ 44 Defense counsel further argued that S.S-F. fabricated the allegations or perhaps she
believed them to be true because she was drunk and dreaming, arguing:
“So I think the last and probably most important question that you’re gonna
have to ask yourself, once you’ve taken a look at all of this evidence, why would
she ever say those things? Why would a, a 13 year old say this if it didn’t happen?
And, you know what, I, I’ll be honest, I don’t know why she would make that up.
I do know that her father has categorically denied all of that from the beginning and
has had to listen to himself be accused of these things and be traumatized by that to
the point where he felt suicidal after it happened.”
¶ 45 Defense counsel then suggested S.S-F. could have been fabricating the allegations because
the defendant would not allow her to date H.L. or because she was sick of her dad telling her what
to do. Finally, defense counsel argued that the redness observed by nurse Moore could have been
caused by something other than assault, including sitting in a bathtub. Tying up her closing
argument, defense counsel stated:
15 “So, when you go back into the jury room and you deliberate, these are all
factors that you must consider. What are the facts? What is proven? Not what is
assumed, not what is inferred, but what is proven to you beyond a reasonable doubt?
And the proof here really come down to what [S.S-F.] says happened and what [the
defendant] denies happened. And the evidence in support of that, in support of what
she says are her statements, which have changed pretty dramatically over time, a
DNA result that could have been based on a handful of skin cells and moved around
from him to her to the bed to the towel to whatever. There is—there is no way to
tell exactly how that got on there. Her a little bit of redness and statement to the
SANE nurse, which could also have been explained by her sitting in the bathtub for
a period of time. And that’s it. That’s the evidence.”
¶ 46 During rebuttal closing argument, the prosecutor argued:
“At no point—at no point—it was a complete mischaracterization of
testimony—did [S.S-F.] ever say she was sitting in a tub, so this whole thing about,
ladies, what happens when you sit for a prolonged period of time, never once in
testimony was that ever said that she was sitting anywhere for a prolonged period
of time. She said she laid down and took a bath. She never talked about hot water.”
¶ 47 The prosecutor further argued:
“Inferences from the evidence that could be drawn from it, that perhaps a
13 year old is scared because this happened. Perhaps because a 13 year old doesn’t
want to tell every single person she talks to every single thing and is beaten down
about the actual mental problems that that might cause telling every single person.
Think about the embarrassment that this had to be for that little girl in her own
16 family to have to come home, what happened, what did he do? She has sisters and
brothers. We got all these people asking you questions right away.”
The court overruled defense counsel’s objection to the prosecutor’s arguments.
¶ 48 In discussing that S.S-F. changed her account of the incident, the prosecutor stated:
“Because she remembered him touching her breasts to the latter two people
and remembered the oral sex part to the first person and then—later on, that’s fairly,
fairly common with people with trauma, especially this level of trauma.”
¶ 49 In explaining that attorneys are allowed to interview witnesses before trial, the prosecutor
stated:
“Yes, and one of the instructions are going to tell you, we do happen to meet
with our witnesses beforehand to go over trial testimony the same way defense
counsel meets with their clients. Do you actually think we walk in here without
having talked to them about their statements to see what they know, what they don’t
know? [S.S-F.] testified credibly across the board.”
¶ 50 The prosecutor also argued that the defendant should have called a witness, stating
“[defense counsel] wants to know why a trained CAC forensic interview couldn’t get somebody
to talk, then she should have subpoenaed her in her [sic] and asked her those questions because
she has subpoena power, too.”
¶ 51 C. Verdict and Posttrial Motions
¶ 52 The jury found the defendant guilty of aggravated criminal sexual abuse for touching S.S-
F.’s vagina and of aggravated criminal sexual abuse for touching S.S-F.’s breasts. They also found
the separate element that S.S-F. was under the influence of alcohol and that the defendant knew or
should have known that fact at the time of those offenses was proven. However, the jury found the
defendant not guilty of criminal sexual assault for placing his penis on S.S-F.’s lips. The trial court 17 denied the defendant’s motion for a new trial and sentenced him to concurrent sentences of seven
years’ imprisonment on each count. The defendant filed a timely appeal.
¶ 53 II. ANALYSIS
¶ 54 On appeal, the defendant contends that the prosecutor’s remarks during rebuttal closing
arguments were improper where the prosecutor vouched for the credibility of the State’s witnesses;
shifted the burden of proof to the defense; misstated the evidence; and asserted facts not in
evidence. The State responds that the prosecutor’s remarks were invited by trial counsel’s own
closing argument to the jury and that any error that might have resulted was harmless.
¶ 55 A. Standard of Review
¶ 56 The defendant argues that the standard of review when examining closing remarks is
de novo. As the State correctly notes, our appellate courts are divided over whether to apply an
abuse of discretion standard or a de novo standard to allegations of prosecutorial misconduct.
Burman, 2013 IL App (2d) 110807, ¶ 26. This is the result of two supreme court cases. In People
v. Wheeler, 226 Ill. 2d 92, 121 (2007), the de novo standard of review was applied to whether a
prosecutor’s remarks were so egregious as to require a new trial. However, in People v. Blue, 189
Ill. 2d 99, 128 (2000), the court applied the abuse of discretion standard when reviewing a
prosecutor’s remarks during closing argument. A trial court abuses its discretion when its ruling is
arbitrary, fanciful, or unreasonable, or where no reasonable person would take the view adopted
by the trial court. People v. Arze, 2016 IL App (1st) 131959, ¶ 86. Where the result would be the
same regardless of the standard of review applied, the courts have noted the conflict but have
declined to determine the appropriate standard. Burman, 2013 IL App (2d) 110807, ¶ 26. We need
not decide that question here as our conclusion would remain the same under either standard.
18 ¶ 57 B. Plain Error Review
¶ 58 The defendant concedes that he did not object to all of the State’s erroneous statements
made during rebuttal closing argument or raise the issues in a posttrial motion; nevertheless, he
argues that review and relief are warranted under either prong of the plain-error doctrine or,
alternatively, as a claim of ineffective assistance of trial counsel for failing to preserve the error.
¶ 59 “To preserve a purported error for consideration by a reviewing court, a defendant must
object to the error at trial and raise the error in a posttrial motion.” People v. Sebby, 2017 IL
119445, ¶ 48. “Failure to do either results in forfeiture.” Id. Plain errors or defects affecting
substantial rights may be noticed although they were not brought to the attention of the trial court.
Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967). The plain-error doctrine permits a reviewing court to
consider an unpreserved error if either (1) the evidence is so closely balanced that the error
threatened to tip the scales of justice against the defendant (i.e., the jury’s guilty verdict may have
resulted from the error and not the evidence), or (2) the error is so serious that it affected the
defendant’s substantial rights, and thus denied him a fair trial. Id.; People v. Jackson, 2022 IL
127256, ¶ 19. Under either prong, the burden of persuasion remains with the defendant. People v.
Rodriguez, 2014 IL App (2d) 130148, ¶ 73. “The first step in plain error review is to determine
whether a clear or obvious error occurred.” People v. Finlaw, 2023 IL App (4th) 220797, ¶ 47.
¶ 60 C. Improper Remarks During Closing
¶ 61 A defendant seeking reversal of his conviction based upon improper remarks made during
closing argument faces a difficult burden. People v. Holmon, 2019 IL App (5th) 160207, ¶ 48.
During closing argument, the prosecution may comment on the evidence presented, reasonable
inferences from that evidence, and the credibility of the witnesses. Burman, 2013 IL App (2d)
110807, ¶ 25. “It is well established that prosecutors are afforded wide latitude in closing
argument, and improper remarks will not merit reversal unless they result in substantial prejudice 19 to the defendant.” People v. Kitchen, 159 Ill. 2d 1, 38 (1994). “Substantial prejudice occurs if the
improper remarks constituted a material factor in the defendant’s conviction.” People v. Johnson,
2023 IL App (5th) 190426-B, ¶ 35. An improper remark constitutes a material factor where the
jury could have reached a contrary verdict had the improper remark not been made or where a
reviewing court cannot say that the prosecutor’s improper remark did not contribute to the
defendant’s conviction. Id. “This standard is similar to the standard applied in plain error analysis.”
Id. (citing People v. Jackson, 2020 IL 124112, ¶ 83). Closing arguments are viewed in their
entirety, and the challenged remarks must be considered in context “rather than focusing on
selected phrases or remarks.” People v. Runge, 234 Ill. 2d 68, 142 (2009); Holmon, 2019 IL App
(5th) 160207, ¶ 51.
¶ 62 1. Improper Vouching
¶ 63 The defendant contends the prosecutor improperly vouched for the credibility of the State’s
witnesses by asserting he had vetted the witnesses before they testified. He further contends that
the prosecutor improperly vouched for the credibility of S.S-F. During rebuttal arguments, the
prosecutor asked the jurors, “Do you actually think we walk in here without having talked to them
about their statements to see what they know, what they don’t know?” The prosecutor continued,
“[S.S-F.] testified credibly across the board.” The defendant argues these comments were improper
because they suggested that the prosecutor presented only witnesses whose stories he believed,
and he stated outright that S.S-F., who was the key witness against him, was credible. The State
counters that the prosecutor did not personally vouch for the witnesses and was merely responding
to defense counsel’s attack on S.S-F.’s credibility.
¶ 64 It is improper for a prosecutor to personally vouch for the credibility of a witness or to
bolster a witness’s testimony. Johnson, 2023 IL App (5th) 190426-B, ¶ 33. Improper bolstering
20 involves an expression of a prosecutor’s personal belief in the credibility of a witness. See People
v. Rogers, 172 Ill. App. 3d 471, 476 (1988).
¶ 65 In support of the defendant’s argument, he relies on People v. Boling, 2014 IL App (4th)
120634, ¶¶ 125-27, where the appellate court concluded the prosecutor improperly expressed his
own opinion about a witness’s credibility when he stated during closing argument that “ ‘We can
believe’ ” a witness and “ ‘I do think [the witness’s] statements are credible. They are believable.
They are honest.’ ” The defendant also relies on People v. Lee, 229 Ill. App. 3d 254, 259-60 (1992),
where the appellate court concluded that the prosecution improperly and prejudicially expressed
its personal belief regarding a witness’s credibility when it stated during rebuttal closing argument
that an officer “ ‘happened to be extremely honest in my humble opinion,’ ” and “ ‘He is telling
you the truth.’ ” The defendant posits that the prosecutor’s comments in the instant case were like
those in Boling and Lee.
¶ 66 By contrast, the State contends that the instant case is akin to People v. Olla, 2018 IL App
(2d) 160118, ¶ 42, where the appellate court, in finding no error had occurred in the prosecutor’s
closing rebuttal argument, stated, “Here, the defense placed A.F.’s credibility at issue. In opening
statements and on cross-examination, the defense focused on inconsistencies in her statements.”
Thus, the Olla court concluded that the prosecutor could fairly comment on A.F.’s credibility,
including the lack of a motive for her to lie. Id.
¶ 67 We find the State’s argument persuasive as a prosecutor may respond to comments made
by defense counsel that clearly invite a response. People v. French, 2017 IL App (1st) 141815,
¶ 48. Here, the record shows it was the defendant’s strategy to attack S.S-F.’s credibility by arguing
that she lied about the events that occurred in the hotel room, that she fabricated the allegations
against the defendant because she was angry with him, or that she believed the allegations to be
true because she was drunk and dreaming. Furthermore, during closing argument, defense counsel 21 argued that S.S-F. was inconsistent in relating to different people the specific acts that the
defendant committed. In light of these arguments, the prosecutor responded by arguing that S.S-
F.’s testimony was credible, that her prior statements were reasonably consistent, and that any
minor inconsistencies were explained by her testimony that she was young, upset, and not as
comfortable talking to some people as she was to others. Accordingly, we find no clear or obvious
error.
¶ 68 2. Burden Shifting
¶ 69 The defendant next argues that the prosecutor shifted the burden of proof to the defendant
by telling the jury that he could have subpoenaed a witness from CAC. The burden is on the
prosecution to prove beyond a reasonable doubt all the material and essential facts constituting a
crime committed by an accused. People v. Armstead, 322 Ill. App. 3d 1, 10 (2001). A defendant
has no duty to produce evidence at trial, and the prosecution may never shift its burden of proof to
a defendant. People v. Gavin, 2022 IL App (4th) 200314, ¶ 67 (quoting People v. Mudd, 2022 IL
126830, ¶ 34).
¶ 70 During closing arguments, defense counsel argued that the CAC interviewer, a person
trained to interview children, reported that S.S-F. stated that the defendant only touched the outside
of her vagina, whereas she told the EMT and SANE nurse that she was penetrated. In rebuttal, the
prosecutor stated, “[Defense counsel] wants to know why a trained CAC forensic interview
couldn’t get somebody to talk, then she should have subpoenaed her in her [sic] and asked her
those questions because she has subpoena power, too.” The defendant insists the prosecutor’s
remarks were improper because he suggested to the jury that the defendant could have provided
some sort of explanation but failed to do so. The State maintains that the prosecutor’s remarks
were a proper response to defense counsel’s claims that S.S-F. fabricated her allegations by
22 questioning why S.S-F. was unable to reveal all of the alleged abuse even to a trained CAC
professional.
¶ 71 Once again, we find the prosecutor’s remarks were a response to defense counsel’s
argument suggesting that S.S-F.’s testimony was fabricated, because she did not relate the same
facts in her interview at the CAC as she previously related. See French, 2017 IL App (1st) 141815,
¶ 48. The prosecutor’s remark did not suggest the defendant had any obligation to present the CAC
interviewer or indeed to present any evidence whatsoever. Because we find that the prosecutor did
not improperly shift the burden of proof to the defendant, we find no clear or obvious error; thus,
plain error is inapplicable.
¶ 72 3. Misstatements of Evidence
¶ 73 “It is improper for a prosecutor to misstate the evidence or argue facts not in evidence.”
Johnson, 2023 IL App (5th) 190426-B, ¶ 33. The defendant asserts that the prosecutor improperly
misstated the evidence during the rebuttal portion of his closing argument when he stated:
“At no point—at no point—it was a complete mischaracterization of
testimony—did [S.S-F.] ever say she was sitting in a tub, so this whole thing about,
ladies, what happens when you sit for a prolonged period of time, never once in
testimony was that ever said that she was sitting anywhere for a prolonged period
of time. She said she laid down and took a bath. She never talked about hot water.”
¶ 74 The defendant contends the remarks were a misstatement of the evidence where S.S-F.
plainly testified that she sat in the bathtub and even fell asleep there. He further contends these
remarks were prejudicial because a key part of his defense at trial was that the redness observed
by nurse Moore could have been caused by something other than assault, including sitting in a
bathtub.
23 ¶ 75 We find the defendant’s argument unavailing. The prosecutor’s remarks were not a
misstatement of fact where nurse Moore testified that while the redness she observed theoretically
could have occurred from sitting in hot water or a hot tub, she would have expected to see redness
elsewhere, not just on the posterior fourchette. Furthermore, on cross-examination, defense
counsel posed a hypothetical to nurse Moore, suggesting that if she were hunched forward in a
bathtub with her arms around her knees, certain parts of her vulva, labia, et cetera, would be
touching the floor of the bathtub, to which nurse Moore responded, “It could be.” However, there
had been no testimony that S.S-F. sat in a hunched position in a tub of hot water, but rather, she
testified that she fell asleep in the bath, presumably in a prone position. Accordingly, we do not
find the prosecutor’s remarks misstated the evidence.
¶ 76 4. Facts Not in Evidence
¶ 77 The defendant argues that the prosecutor improperly argued facts not in evidence by
suggesting that S.S-F.’s change in her details of the events was usual among trauma victims. The
defendant contends there was no evidence presented which established that S.S-F. would have
been emotionally traumatized by telling the EMT, the nurse, and the detectives the same account
about the alleged incident. Here, S.S-F.’s credibility was a key issue at trial, and thus, the defendant
insists the prosecutor’s comments were prejudicial as they provided an unsubstantiated reason why
S.S-F. told different versions of her account to different people.
¶ 78 While a prosecutor may argue facts and legitimate inferences drawn from the evidence
presented, it is improper for a prosecutor to argue assumptions or facts not based upon the evidence
in the record. People v. Williams, 2023 IL App (1st) 192463, ¶ 134. The defendant specifically
contends the following remarks were improper:
24 “Because [S.S-F.] remembered him touching her breasts to the latter two people
and remembered the oral sex part to the first person and then—later on, that’s fairly, fairly
common with people with trauma, especially this level of trauma.”
¶ 79 The defendant concedes that Detective Bross testified that sexual assault complainants
sometimes tell different people different versions of the alleged incident, but the defendant
maintains there was no testimony that a victim changing their story is “fairly common with people
with trauma, especially this level of trauma.” Furthermore, he maintains that because there was no
expert testimony as to what level of trauma S.S-F. experienced, the prosecutor asserted facts not
in evidence. He argues that the prosecutor’s improper statements served to draw the jury’s attention
toward S.S-F.’s alleged trauma which was an unsuitable tactic that served “only to divert the jury’s
attention from the more tangible issues to be considered.” People v. Johnson, 208 Ill. 2d 53, 80
(2003).
¶ 80 We find the defendant’s argument without merit where the prosecutor’s remarks in rebuttal
were invited by defense counsel’s argument. People v. Stevens, 2018 IL App (4th) 160138, ¶ 56.
(“Statements [made in closing argument] will not be held improper if they were provoked or
invited by the defense counsel’s argument.” (Internal quotation marks omitted.)). In closing
argument, defense counsel suggested that evidence that S.S-F. was lying was the fact that she
provided conflicting details to different individuals investigating her claims. Defense counsel in
closing arguments told the jury that these details would be “seared into your memory as trauma.”
¶ 81 Furthermore, a prosecutor is allowed to argue facts and legitimate inferences drawn from
the evidence. Williams, 2023 IL App (1st) 192463, ¶ 134. Here, a reasonable inference from the
evidence was that S.S-F. was traumatized. EMT Roark testified that S.S-F. was very quiet,
reserved, and speaking in broken-up sentences. Roark testified that S.S-F. appeared to be in a state
of emotional shock. Further, the SANE nurse testified that S.S-F. was very tearful, withdrawn, and 25 quiet. The evidence supported the prosecutor’s inference that S.S-F. was traumatized by the abuse,
especially as the perpetrator was her own father. Hence, we do not find this portion of the
prosecutor’s remarks constituted error.
¶ 82 The defendant argues that the prosecutor asserted facts not in evidence where he told the
jury that S.S-F.’s family was aggressively asking her questions about the incident immediately
after it took place although there was no evidence presented that her family questioned her.
Specifically, the prosecutor stated:
“Inferences from the evidence that could be drawn from it, that perhaps a
13 year old is scared because this happened. Perhaps because a 13 year old doesn’t
want to tell every single person she talks to every single thing and is beaten down
about the actual mental problems that that might cause telling every single person.
Think about the embarrassment that this had to be for that little girl in her own
family to have to come home, what happened, what did he do? She has sisters and
brothers. We got all these people asking you questions right away.”
¶ 83 The defendant claims the statements were improper because according to S.S-F.’s
testimony, her siblings were not at the house when she arrived home. The State counters that the
prosecutor’s remark was a reasonable inference that S.S-F. would be embarrassed by the inevitable
questions from her siblings about what sex acts her father had inflicted on her.
¶ 84 We find that the prosecutor’s remarks were not improper because they were reasonable
inferences from the evidence at trial. Thus, because we find no “clear or obvious error” occurred,
plain error review is inapplicable. Finlaw, 2023 IL App (4th) 220797, ¶ 47.
26 ¶ 85 D. Ineffective Assistance of Counsel Claim
¶ 86 Alternatively, the defendant argues that trial counsel was ineffective for failure to preserve
the record. Because we find no error, we decline to consider defendant’s claim of ineffective
assistance of counsel. People v. Moon, 2019 IL App (1st) 161573, ¶ 47.
¶ 87 III. CONCLUSION
¶ 88 For the foregoing reasons, we affirm the trial court’s judgment.
¶ 89 Affirmed.