2025 IL App (1st) 231153-U
SECOND DIVISION August 26, 2025
No. 1-23-1153
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit ) Court of Cook County. Plaintiff-Appellee, ) ) v. ) No. 13 CR 0053901 ) SHAWN STUBBLEFIELD, ) ) Honorable Lawrence E. Flood, Defendant-Appellant. ) Judge Presiding. ______________________________________________________________________________
JUSTICE HOWSE delivered the judgment of the court. Justices McBride and Ellis concurred in the judgment.
ORDER
¶1 Held: We affirm in part, vacate in part, and remand the case for a new sentencing hearing. We affirm defendant’s conviction for aggravated criminal sexual assault with kidnapping as the predicate felony; we presume the trial court considered the other crimes evidence for its proper purpose; defendant’s claim of ineffective assistance of counsel on allegations of failing to impeach the victim’s testimony fails; we vacate defendant’s sentence and remand for resentencing because the trial court improperly applied a sentencing enhancement to defendant’s sentence that did not apply.
¶2 Following a bench trial, defendant Shawn Stubblefield was found guilty of aggravated
criminal sexual assault, kidnapping, robbery, and unlawful restraint. He was sentenced to 35
years in prison. Defendant now appeals his conviction and sentence. Defendant argues that the
trial court improperly allowed other crimes evidence to be used to show defendant’s propensity 1-23-1153
to commit sex offenses when the other crimes evidence did not meet the statutory requirements
to be used as propensity evidence. Defendant argues that his trial counsel was ineffective for
failing to complete the impeachment of the victim after the victim provided an inaccurate
description of defendant to the police when she reported the crime. Defendant argues that the
physical lineup in which he was identified was unduly suggestive because he was the tallest
participant in the lineup and no other participants had both dreadlocks and a dark-colored hoodie
as the offender was described to have had at the time of the crime. Defendant argues that the trial
court improperly applied a 15-year firearm enhancement to his sentence despite the fact that the
offense for which he was convicted includes no such enhancement. Finally, defendant argues
that his kidnapping conviction must be vacated under the one-act, one-crime doctrine because
kidnapping was also the predicate felony for his aggravated criminal sexual assault conviction.
¶3 For the following reasons, we affirm defendant’s conviction for aggravated criminal
sexual assault with kidnapping as the predicate felony. We vacate defendant’s sentence for that
aggravated criminal sexual assault conviction because the trial court improperly applied the
firearm sentencing enhancement to defendant’s sentence where the offense underlying the
conviction did not support the application of the sentencing enhancement. We also vacate
defendant’s kidnapping conviction because it cannot stand as it violates the one-act, one-crime
doctrine where kidnapping was the predicate felony for defendant’s other conviction. Having
vacated defendant’s sentence, we remand for a new sentencing hearing.
¶4 BACKGROUND
¶5 On December 3, 2012, C.H., a 13-year-old girl, was walking the two or three blocks from
her apartment to the bus stop to start her day of middle school. She noticed someone walking
behind her and she turned around and saw defendant. Defendant began to get closer, so C.H.
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crossed the street, but defendant followed her. C.H. tried to take out her cellphone, but defendant
caught up to her, told her he had a gun, and ordered her to come with him to his car. Defendant
then dragged C.H. to his vehicle. Defendant’s vehicle was a white, four-door, “older kind of car”
with a bench seat in the front. After C.H. was inside the car, defendant ordered her to pull down
her pants, and he pulled down his pants as well. Defendant then put his hand on the back of
C.H.’s head and forced her to perform oral sex on him. Defendant ejaculated into her mouth.
¶6 Defendant then drove C.H. to her house. C.H. testified that defendant drove to her house
without asking directions because he said he knew where she lived because he had been
watching her. He instructed her to go inside and get money for him and threatened to burn down
her apartment building if she failed to comply. When C.H. went into her apartment, her cousin
Tawana Cross was there. C.H. told Tawana what happened, and Tawana called the police. When
the police arrived, defendant was gone. C.H. went to the hospital where a sexual assault kit was
completed.
¶7 Another girl, 17-year-old M.N., was walking to the bus to go to school the same day,
December 3, 2012. She noticed a white “old school” four-door Cadillac with dark tinted
windows parked almost directly across the street from her house. The car was running and
someone was sitting inside. As M.N. continued towards the bus stop, defendant exited the
vehicle and began walking behind her. Defendant asked M.N. her name, but she did not respond
and continued walking. Defendant approached her, grabbed her, and pulled her into the doorway
of a building. M.N. started screaming, and defendant covered her mouth with his hand. She bit
his hand and began to pull at his dreadlocks. Defendant continued to hold onto M.N. and he
stuck his hand down her pants and inserted his finger into her vagina.
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¶8 M.N. was able to break free from defendant and she ran into the street. Defendant was
holding onto M.N.’s backpack and he tried to convince her to come back to him and retrieve it,
but she refused. Defendant hung the backpack on a gate and started to walk back to his vehicle.
M.N. was then able to go back and retrieve her backpack. Defendant then tried to approach M.N.
again and he said he was sorry, that he did not mean to do what he did, and that he was drunk.
M.N. went back home, called the police, and told them what happened. She then went to the
hospital, and a sexual assault kit was completed.
¶9 Two days later, on December 5, 2012, a young teenager, J.C. was walking to school
when she noticed defendant in front of her. J.C. decided to cross the street, but defendant
followed her. Defendant put his arm around J.C. and asked her for her name. She did not
respond. Defendant told J.C. that he had a gun and that she was coming with him. J.C. began to
scream, and defendant put his hand over her mouth. She bit him and was able to break free from
him. She ran into the street and flagged down a passing car. The woman driving the car stopped
and let J.C. into the vehicle. The woman then drove J.C. to the police station where she told the
police what happened. She told the police that defendant drove a white, older vehicle and had
dreadlocks.
¶ 10 Shortly after J.C. was approached, a 13-year-old girl, I.M. was walking to school. As she
was walking, defendant exited a white four-door sedan and approached her from behind.
Defendant put his hand over her mouth and told her he had a gun. Defendant started forcefully
pulling I.M. towards his vehicle. As I.M. began screaming and struggling with defendant, a
woman in a Honda minivan drove by and made direct eye contact with I.M. Defendant realized
the woman had seen what was occurring, so he released I.M. I.M. ran to the woman’s minivan
and got into the front passenger seat. At the same time, defendant returned to his vehicle and
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drove away. The woman who saved I.M. called the police and she began to follow defendant’s
vehicle as he fled. The woman gave the police the license plate number, and she then returned to
the scene of the assault so that I.M. could meet with the responding officers.
¶ 11 A River Forest Police Officer, Glen Czernick, was traveling in his squad car on the
morning of December 5, 2012 when he heard the radio dispatches about two attempted child
abductions that had occurred that morning. The dispatches stated that the offender was a black
male driving a white, older, boxy-style vehicle. Officer Czernick saw a vehicle matching that
description and curbed the vehicle. Officer Czernick announced on the radio that he had stopped
a vehicle matching the description of the one associated with the attempted child abductions. J.C.
was meeting with police officers at the station reporting what had happened to her. The officers
brought her to the scene where defendant was stopped, and she immediately pointed at defendant
and identified him and the vehicle without being prompted by the officers. I.M. was also brought
to the scene. I.M. stated that she did not get a good look at defendant’s face during the attack, but
the man the police had stopped had the same skin tone, hairstyle, stature, and type of clothes
worn by the man who attacked her.
¶ 12 Defendant was arrested and brought to the Oak Park police station. Oak Park Police
Department Commander Shatonya Johnson was aware that the Chicago Police Department was
looking for a suspect who matched defendant’s description, so she informed the police in
Chicago about the arrest.
¶ 13 Commander Johnson met with defendant, read him his Miranda rights, and questioned
him about the attacks against J.C. and I.M. Defendant initially denied any involvement in the
crimes, but later admitted that he approached the two girls and attempted to pull them into his
car. Defendant agreed to give a written statement to Assistant State’s Attorney Barry Quinn.
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ASA Quinn typed the statement as defendant recounted the events about the attacks. Defendant
then made a couple corrections and signed the statement. ASA Quinn and Commander Johnson
signed the statement as well.
¶ 14 In his written statement, defendant recounted that, on the morning of December 5, 2012,
he was driving a white Cadillac when he noticed J.C., who he described as an “attractive girl,”
walking past a McDonald’s restaurant. He stopped his car, approached J.C., and asked for her
name. Defendant pulled J.C. towards him and told her that he had a gun, but she twisted herself
away from him and flagged down a passing vehicle. Defendant returned to his vehicle and left
the area. Defendant acknowledged that he was “too aggressive” with J.C. and that it was wrong
for him to approach her and tell her that he had a gun.
¶ 15 Defendant continued his statement by stating that, approximately 15 minutes later, while
he was driving, he noticed I.M., another “attractive girl” who was his “type.” She looked young
and had “a nice, little body.” He stopped his vehicle, approached her from behind, grabbed her,
and pulled her towards him. I.M. began yelling and ran away from him. She flagged down a
passing car and defendant returned to his vehicle and fled. He was aware that the car that I.M.
flagged down started following him so he drove evasively. Shortly thereafter, a River Forest
Police officer pulled him over. Defendant admitted that his conduct towards J.C. and I.M. was
wrong and that he “fucked up” by mentioning that he had a gun.
¶ 16 Detective Jacqueline Mok from the Chicago Police Department was assigned to
investigate the attacks on C.H. and M.N. that happened on December 3, 2012. After interviewing
the girls, she determined that the cases were probably related because the physical description of
the offender was similar in both cases, as was the description of the vehicle and the modus
operandi. Detective Mok put out a community alert describing the offender, the vehicle, and the
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crimes. On December 5, 2012, Detective Mok received word that the Oak Park Police had
arrested a suspect who matched the description of M.N. and C.H.’s attacker. Detective Mok went
to the Oak Park police station to interview defendant. Defendant initially denied any involvement
in the attacks on M.N. and C.H. but later agreed to give another statement to ASA Quinn. ASA
Quinn typed the statement as defendant gave it and then defendant, ASA Quinn, and Detective
Mok all signed the statement.
¶ 17 According to his written statement, defendant was driving the white Cadillac when he
saw an attractive girl with a backpack. Defendant identified a photo of C.H. as the girl he saw.
He got out of his car, approached her, put his arm around her, and asked for her name. C.H.
asked who he was and if he was going to hurt her. Defendant told her he was not going to hurt
her, but when she asked if he had a gun, he replied that he did. Defendant told C.H. some things
that would scare her, such as that he had been watching her. C.H. performed oral sex on him and
he masturbated until he ejaculated. He then told her he would drive her home so she could get
money for him. He waited outside for her, but when she did not return he moved his car to a
nearby location. He then saw the police coming, so he struck up a conversation with a woman
who was outside so the police would not notice him. Defendant admitted that what he did to C.H.
was “wrong.”
¶ 18 C.H. and M.N. went to the police station in Oak Park and separately viewed physical
lineups. Both girls identified defendant as their attacker. The police also had them view
defendant’s vehicle and they identified the car with C.H. identifying it as the place where her
assault took place and M.N. identifying it as the car defendant was driving when he attacked her.
¶ 19 Defendant was charged for his attack on C.H. and the case was proceeding towards trial.
Prior to trial, the State filed a motion to admit other crimes evidence. The State sought to
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introduce evidence at trial that defendant attacked three other young girls, with M.N. being
attacked the same day as C.H., and J.C. and I.M. being attacked two days later. The State argued
in its motion that defendant’s attacks on M.N., J.C., and I.M. were admissible under section 115-
7.3 of the Code of Criminal Procedure (725 ILCS 5/115-7.3 (West 2022)) to show his propensity
to commit sexual assault. The State further argued that evidence of the other attacks was relevant
and admissible under Illinois Rule of Evidence 404 (West 2022) (eff. Jan. 1, 2011) to prove
defendant’s identity as the perpetrator as well as his intent, motive, modus operandi, and the
absence of an innocent frame of mind.
¶ 20 Defendant argued that the events identified by the State were not similar enough to the
charged offense to be admissible for propensity purposes. He also argued that he would suffer
substantial prejudice if the evidence of the other crimes was admitted and that the evidence was
substantially more prejudicial than probative. The trial court granted the State’s motion and
permitted the State to introduce the other crimes evidence at trial.
¶ 21 Thereafter, defendant filed a motion to suppress evidence of the lineup identifications
made by C.H. and M.N. on the basis that the lineup was unnecessarily suggestive. Defendant
argued in his motion that he was the tallest person in the lineup and only one of the other men in
the lineup had dreadlocks. The trial court denied the motion to suppress the lineup
identifications.
¶ 22 The case proceeded to a bench trial. The court heard evidence of the four assaults that
took place on December 3 and December 5, 2012. After the State introduced evidence consistent
with the above facts, defendant presented his defense. Defendant’s cousin, Christopher Hall,
testified in defendant’s defense. Hall testified that defendant lived with him at his apartment in
Chicago. Defendant had recently moved back to Chicago after living for a period in Milwaukee.
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Hall woke up at 6:45 a.m. on December 3rd to get ready for work. According to Hall, defendant
was planning to go look for a job that day with his friend Drayon. Drayon owned a white
Cadillac and physically resembled defendant, as they had similar builds and were the same
height.
¶ 23 Hall testified that he left the apartment between 7:45 a.m. and 8:00 a.m. on December 3,
2012 and defendant was still in the apartment at that time. M.N. had testified that she was
approached by defendant just after 6:15 a.m. and C.H. testified she was approached by defendant
just after 7 a.m. Hall could not recall defendant’s whereabouts on December 5, 2012 because it
was so long ago. Hall testified that he did not come forward sooner to present the alibi for
defendant because Hall had a warrant out for his own arrest and had other events going on in his
life such that he did not want to be apprehended by authorities.
¶ 24 Defendant testified in his own defense. Defendant testified that he never owned a white
Cadillac, but his friend Drayon did. According to defendant, Drayon was similar in size to him
and had shoulder-length dreadlocks. Defendant testified that he was pulled over while he was
driving Drayon’s car while he was out looking for a job and he had borrowed Drayon’s car
because his car was out of commission. Defendant denied that he had ever seen C.H., M.N., J.C.,
or I.M. at any time prior to trial.
¶ 25 Defendant admitted that he talked to police but denied making the majority of the
statements attributed to him in the written statement. He testified that he told ASA Quinn about
his family and his schooling but did not tell him the other things in the statement. Defendant
maintained that Quinn only went over the first page of the statement with him and he signed the
statement without reading it. He denied making corrections to the statement, and when he was
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shown photos of the accusers he told the ASA that he did not know them. Defendant stated that
ASA Quinn told him to sign the photos to signify that they had been shown to him.
¶ 26 There was no indication of semen on the oral swab C.H. gave as part of the sexual assault
kit. There was likewise no indication of semen on her clothing.
¶ 27 The trial court found defendant guilty on three separate types of aggravated criminal
sexual assault on C.H. based on the forced oral sex, kidnapping, robbery, and unlawful restraint.
The trial court sentenced defendant to 35 years in prison for aggravated criminal sexual assault
predicated on kidnapping and three years in prison for kidnapping. The trial court merged the
remaining convictions. Defendant now appeals his convictions and sentence.
¶ 28 ANALYSIS
¶ 29 As for his convictions, defendant argues that he is entitled to a new trial because the trial
court improperly allowed the other crimes evidence from I.M. and J.C. to be used as propensity
evidence. Defendant also argues that he is entitled to a new trial because his trial counsel was
ineffective for failing to perfect impeachment of C.H.’s testimony. Defendant argues that the trial
court erred when it denied his motion to suppress the lineup identifications because the lineup
was unduly suggestive. As for his sentence, defendant argues that the trial court improperly
applied a 15-year firearm enhancement to his aggravated criminal sexual assault conviction.
Finally, defendant argues that his kidnapping conviction must be vacated under the one-act, one-
crime doctrine since kidnapping is a lesser-included offense of criminal sexual assault predicated
on kidnapping.
¶ 30 Other Crimes Evidence
¶ 31 Defendant argues that the trial court improperly allowed the other crimes evidence from
I.M. and J.C. to be used as propensity evidence under section 115-7.3 of the Code of Criminal
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Procedure (725 ILCS 5/115-7.3 (West 2022)) where neither I.M. nor J.C. alleged that defendant
committed an offense for which that section applies. The State argues that defendant has
forfeited the argument that the evidence was inadmissible under section 115-7.3 of the Code of
Criminal Procedure because he never made that argument in the trial court.
¶ 32 Generally, the State may not introduce evidence that the defendant has committed other
crimes in order to show that he has the propensity to commit the charged offense. People v.
Donoho, 204 Ill. 2d 159, 172 (2003). Section 115-7.3 of the Code of Criminal Procedure,
however, includes a limited exception to the general prohibition on propensity evidence for
certain sex offenses. Id. To paraphrase for purposes of this case, the statute says if a defendant is
charged with aggravated criminal sexual assault, evidence of the defendant's commission of
another enumerated sex offense may be admissible and may be considered for its bearing on any
matter to which it is relevant, including the defendant’s propensity to commit sex offenses. See
725 ILCS 5/115-7.3 (West 2022); Donoho, 204 Ill. 2d at 176 (“the legislature enacted section
115–7.3 to enable courts to admit evidence of other crimes to show defendant's propensity to
commit sex offenses if the requirements of section 115–7.3 are met.”). Defendant, however,
argues that I.M. and J.C., at most, described attempted kidnappings, not criminal sexual assault,
which do not meet the requirement for admissibility as propensity evidence under the statute.
¶ 33 On appeal, the State points out that it argued in its pretrial motion that the evidence was
admissible to prove defendant’s identity as the perpetrator as well as his intent, motive, modus
operandi, and the absence of an innocent frame of mind under Illinois Rule of Evidence 404.
“(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is
not admissible to prove the character of a person in order to show action in
conformity therewith except as provided by sections 115-7.3, 115-7.4, and 115-20
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of the Code of Criminal Procedure (725 ILCS 5/115-7.3, 725 ILCS 5/115-7.4, and
725 ILCS 5/115-20). Such evidence may also be admissible for other purposes,
such as proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.” Ill. R. Evid. 404 (West 2022) (eff.
Jan. 1, 2011).
In granting the State’s motion to introduce the other crimes evidence, the trial court found the
evidence to be admissible under both section 115-7.3 and Illinois Rule of Evidence 404.
¶ 34 In response to the State’s pretrial motion to admit other crimes evidence, defendant
argued that the probative value of the other crimes evidence was outweighed by the prejudice.
He did not specifically argue, as he does here, that the other crimes evidence offered by I.M. and
J.C. did not meet the requirement for admissibility as propensity evidence under the statute.
Indeed, defendant principally argued that the evidence could not be properly admitted as
propensity evidence because the allegations made by the other girls were not substantially
similar to those made by C.H.
¶ 35 As defendant points out, however, while he did not raise the exact same argument in the
trial court that he raises here, he did argue in response to the State’s motion that the evidence
offered by I.M. and J.C. should not be admitted under section 115-7.3 as propensity evidence
because “evidence of an alleged kidnapping with very different facts and allegations” from the
aggravated criminal sexual assault at issue in this case would be unduly prejudicial. In his
posttrial motion, defendant also argued that the other crimes evidence concerning the attacks on
I.M. and J.C. should not have been permitted to be used in such a manner to show his propensity
to commit sex crimes. We find that defendant’s objections were sufficient to avoid forfeiting the
issue he now raises. See People v. Minter, 2015 IL App (1st) 120958, ¶ 43 (a defendant need not
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make an objection on identical grounds in the trial court in order to preserve the issue for
appeal); see also People v. Mohr, 228 Ill. 2d 53, 65 (2008); People v. Heider, 231 Ill. 2d 1, 18
(2008).
¶ 36 Even though we find it is proper to address defendant’s argument on the merits, we
disagree with his contention that he is entitled to a new trial based on the admission of the other
crimes evidence. As stated above, the trial court found the other crimes evidence offered by the
State to be admissible under both section 115-7.3 and Illinois Rule of Evidence 404. Evidence of
other crimes may not be introduced in an attempt to show a defendant's bad character. People v.
Walston, 386 Ill. App. 3d 598, 609-10 (2008); see also Ill. R. Evid. 404(a) (eff. Jan. 1, 2011).
Other crimes evidence is admissible, however, when it is relevant for any purpose other than to
show the defendant's propensity to commit a crime. People v. Heard, 187 Ill. 2d 36, 58
(1999); People v. Robinson, 391 Ill. App. 3d 822, 838 (2009). Other crimes evidence may be
introduced against a defendant, for example, for the purpose of showing “proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”
Ill. R. Evid. 404 (West 2022) (eff. Jan. 1, 2011).
¶ 37 Defendant does not dispute that the evidence was admissible under Illinois Rule of
Evidence 404. Instead, defendant contends that “it was error for the trial court to admit and
consider the allegations as propensity evidence even though they were admissible for other non-
propensity purposes under Rule 404.” Defendant further contends that the other crimes
evidence’s “admissibility under Rule 404 [did not] render the error of their admission as
propensity evidence necessarily harmless.”
¶ 38 When the trial court granted the State’s pretrial motion to admit other crimes evidence, it
stated that the evidence was admissible as propensity evidence. Defendant contends that the
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record does not establish that the trial court only considered the evidence for proper purposes and
not as propensity evidence.
¶ 39 Our supreme court explained many years ago that “[e]vidence admissible for one purpose
is not affected by inadmissibility for another.” People v. Carter, 38 Ill. 2d 496, 504 (1967). We
have recently applied this precept in several cases dealing with the admission of other crimes
evidence. See People v. Brown-Engel, 2018 IL App (3d) 160368, ¶ 20; People v. Johnson, 2014
IL App (2d) 121004, ¶ 51; People v. Boyd, 366 Ill. App. 3d 84, 91-95 (2006); People v. Arze,
2016 IL App (1st) 131959, ¶ 102. In Brown-Engel, we found the other crimes evidence admitted
at trial under section 115-7.3 was inadmissible to show defendant's propensity to commit sex
crimes because it was not evidence of an offense enumerated in the statute. Brown-Engel, 2018
IL App (3d) 160368, ¶ 19. However, even though we found the evidence should not have been
admitted as propensity evidence, the evidence was admissible to show the defendant’s intent and
absence of an innocent state of mind under Rule of Evidence 404. Id. at ¶ 20. The other crimes
evidence offered in Brown-Engel “fit[] squarely within the recognized exceptions [to the bar
against evidence of a defendant’s bad character], which allow such evidence to show defendant’s
intent or to show that the act in question was not performed inadvertently, accidently,
involuntarily, or without guilty knowledge.” Id. at ¶ 22.
¶ 40 In Brown- Engel, we explained that “[a]s a reviewing court, we can sustain the decision
of a lower court on any grounds which are called for by the record, regardless of whether the
lower court relied on those grounds and regardless of whether the lower court's reasoning was
correct.” Id. at ¶ 20 (quoting Leonardi v. Loyola University of Chicago, 168 Ill. 2d 83, 97
(1995)). Similarly, as is the case here, the defendant “suffered no prejudice because the
possibility of prejudice inherent in a jury trial does not exist in a bench trial because it is
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presumed that the circuit court considers only admissible evidence.” Id. at ¶ 25.
¶ 41 Defendant attempts to distinguish this case from Brown-Engel by pointing out that the
record in that case “demonstrate[d] that the prior bad acts evidence was only considered for the
proper purpose of determining defendant’s intent—not defendant’s propensity to commit
crimes.” Id. ¶¶ 25–26. Defendant explains that, in this case, the record does not establish that the
trial court only considered the evidence about the attacks on I.M. and J.C. only for proper
purposes. While defendant is correct that the record here does not establish that the trial court
considered the evidence only for its proper purposes under Rule of Evidence 404, the record
similarly does not establish that the trial court improperly considered the evidence as propensity
evidence. When a proper purpose for admitting evidence exists, in a bench trial, we presume that
the trial court considered the evidence for its proper purpose. See In re Commitment of
Montanez, 2020 IL App (1st) 182239, ¶ 98 (because the case was tried to the bench, we begin
with the presumption that the trial court considered the evidence only for its proper, limited
purpose and that presumption may be rebutted only by an affirmative showing to the contrary
from the record on appeal); see also People v. Smart, 2025 IL 130127, ¶¶ 93-94; People v. Avery,
227 Ill. App. 3d 382, 389 (1991). As the appellant, defendant has the burden of showing error,
People v. Jefferson, 2021 IL App (2d) 190179, ¶ 48, and he failed to do so here.
¶ 42 Even if defendant had established error, the evidentiary error would have been harmless.
If a trial court improperly admits other crimes evidence, we must determine whether a reasonable
probability exists that the trial court would have acquitted the defendant if the court had excluded
the evidence. Smart, 2025 IL 130127, ¶ 93. Even without any evidence about the attacks on I.M.
and J.C., the evidence that defendant assaulted C.H. was overwhelming. First we consider the
other crimes evidence from the attack on M.N, the admissibility of which was never challenged
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by defendant. C.H. and M.N. both consistently identified defendant as the person who sexually
assaulted them. They each separately identified defendant in a physical lineup and at trial as their
attacker. They were both attacked in the early morning on their way to school. They both
reported to the police in very similar terms the type of car defendant was driving, and they both
identified the car after defendant was arrested.
¶ 43 Defendant’s own statements would establish defendant’s identity as the perpetrator in the
attacks on C.H. and M.N. to any reasonable fact finder. Defendant gave a written statement to an
Assistant State’s Attorney in the presence of a detective and all three signed each page of
defendant’s statement. The details defendant gave in the statement aligned with what C.H. told
the police and her cousin directly after the sexual assault took place. The improper admission of
other crimes evidence warrants reversal only if the evidence was a material factor in the
defendant’s conviction such that without the evidence the verdict likely would have been
different. People v. Knight, 309 Ill. App. 3d 224, 229 (1999). In this case, there is no likelihood
that the outcome of the case would have been different, even if the evidence about the attacks on
I.M. and J.C. was excluded. Any error would have been harmless beyond a reasonable doubt.
¶ 44 Ineffective Assistance of Counsel
¶ 45 Defendant argues that his trial counsel was ineffective for failing to perfect the
impeachment of C.H. Both the United States and Illinois Constitutions guarantee a criminal
defendant the right to the effective assistance of counsel at trial. U.S. Const. amends. VI, XIV;
Ill. Const. 1970 art. I, § 8. To be entitled to relief on a claim of ineffective assistance of counsel,
a defendant must show that his counsel's representation fell below an objective standard of
reasonableness and that he suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668,
694 (1984); People v. Scott, 2015 IL App (1st) 131503, ¶ 27. The failure to satisfy both prongs
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of the Strickland test precludes a finding of ineffective assistance of counsel. People v.
Patterson, 192 Ill. 2d 93, 107 (2000). We analyze claims of ineffective assistance of counsel by
considering the entire record. People v. Hommerson, 399 Ill. App. 3d 405, 415 (2010).
¶ 46 Defendant contends that his counsel did not adequately use C.H.’s prior statements about
defendant’s appearance to undermine her identification. The failure to make use of obviously
useful impeachment against a key State witness can constitute a denial of effective assistance of
counsel. People v. Vera, 277 Ill. App. 3d 130, 140 (1995).
¶ 47 C.H. told police that her attacker was 5'9" or 5' 10" with a dark complexion. Defendant is
6' 4" and is not dark complected. On cross-examination, C.H. was questioned by defendant’s
counsel about the description she gave to the police. C.H. acknowledged she told police that
defendant had a dark complexion and admitted that defendant did not. C.H. asserted that she
could not remember what she told police about defendant’s height, and defendant’s counsel did
not bring up that C.H. had described her attacker to police as half-a-foot shorter than defendant.
C.H. also testified at trial that her attacker was wearing white pants while she had previously told
police that the person was wearing dark pants. C.H. testified that if the police’s report stated she
said defendant was wearing dark pants, it was incorrect because he was wearing white pants.
¶ 48 Defendant argues that his counsel’s theory of defense was that C.H.’s identification was
not credible, so the failure to use the available evidence to undermine her identification was
objectively unreasonable. He also argues that he was prejudiced by the error because the State’s
case against him had significant weaknesses and the evidence would have been even weaker if
C.H.’s identification was discredited.
¶ 49 Even though defense counsel did not introduce C.H.’s full prior description of defendant
at trial, counsel brought to light discrepancies from her prior identification. Counsel did not
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completely fail to impeach C.H. and indeed touched on each of the discrepancies he now raises.
C.H. did accurately describe some of defendant’s physical attributes to police such as his weight,
his eye color, and his hair style. She admitted to the flaws in her initial identification but still
testified confidently that defendant was the perpetrator. The trier of fact was made aware of the
differences in C.H.’s initial description and defendant’s physical attributes. “To satisfy the
deficient performance prong of Strickland, a defendant must show that counsel’s performance
was so inadequate ‘that counsel was not functioning as “counsel’ ” guaranteed by the sixth
amendment.’ ” People v. Dupree, 2018 IL 122307, ¶ 44. Defendant has failed to show that
counsel’s failure to fully impeach the victim constituted such unreasonable performance so as to
not be functioning as constitutionally adequate counsel.
¶ 50 Even if defense counsel’s cross-examination of C.H. could be considered to be
objectively unreasonable, he nevertheless cannot establish the prejudice necessary to prevail on
an ineffective assistance of counsel claim. As explained above, the evidence against defendant at
trial overwhelmingly established his guilt. There was compelling evidence in the form of C.H.
and M.N.’s identification testimony, defendant’s own statement in which he admitted assaulting
C.H., and other crimes evidence from three other girls defendant attacked in the same three-day
span as the attack on C.H. Defendant has not demonstrated that a more complete impeachment of
C.H.’s identification would probably have changed the outcome of his trial. Therefore, his claim
fails. People v. Layton, 2021 IL App (1st) 172418, ¶¶ 91-92.
¶ 51 Motion to Suppress Lineup Identifications
¶ 52 Defendant argues that the trial court erred when it denied his motion to suppress the
lineup identifications where the lineup procedures were unduly suggestive. In his pretrial motion,
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defendant asserted that he was the only individual in the lineup who matched the descriptions of
the offender given by C.H. and M.N.
¶ 53 A defendant has a due process right to fair identification procedures and is deprived of
that right if, under the totality of the circumstances, the pretrial identification procedure is
unnecessarily suggestive and conducive to mistaken identification. U.S. Const., amend. XIV;
Stovall v. Denno, 388 U.S. 293, 301-02 (1967). The threshold question in deciding whether a
witness’s identification was so tainted by suggestive identification procedures that its admission
at the defendant’s trial violated due process is whether the pretrial identification procedures were
indeed suggestive. People v. McTush, 81 Ill. 2d 513, 520 (1980). A reviewing court will only
disturb a trial court’s factual findings on a motion to suppress identification if they are against
the manifest weight of the evidence, but the ultimate legal conclusion regarding whether
suppression is warranted is a question we review de novo. People v. Clifton, 2019 IL App (1st)
151967, ¶ 61. Evidence presented during both the suppression hearing and at trial may be
considered in determining the propriety of the trial court’s ruling on the motion to suppress an
identification. People v. Horton, 2019 IL App (1st) 142019-B, ¶ 60.
¶ 54 Although all the individuals in a photo array or lineup need not be physically identical, a
lineup in which the fillers appear as grossly dissimilar to the suspect is impermissibly suggestive.
United States v. Wade, 388 U.S. 218, 233 (1967). The Code of Criminal Procedure provides that
a suspect in a lineup “shall not be substantially different in appearance from the fillers based on
the eyewitness’s previous description of the perpetrator or based on other factors that would
draw attention to the suspected perpetrator.” 725 ILCS 5/107A-2(f)(3)(B) (West 2022).
¶ 55 Defendant argues that the lineup in this case was unduly suggestive where he was the
only participant who matched the witnesses’ description of the offender, and he stuck out from
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the other participants. In particular, defendant notes that C.H. and M.N. described their attacker
as a black man with dreadlocks wearing a black jacket. According to defendant, defendant was
the only person in the lineup who had both dreadlocks and a black jacket. However, a review of a
photo of the actual lineup shows that there were not gross dissimilarities among the lineup
participants and other lineup participants could be considered to have met the witnesses’
previous descriptions of the offender. Two of the men in the lineup had dreadlocks and a third
had his hair in braids.
¶ 56 The fact that the offender was described as wearing a black jacket during the offense is
not particularly notable vis a vis the lineup. C.H. and M.N. were called to come view a physical
lineup two days after they were attacked, so they would have had no reason to suspect defendant
would be wearing the same clothing. Defendant points to the combination of the hairstyle and the
black jacket as being suggestive. In total, four of the five men in the lineup were wearing black
jackets. This fact makes the case relied upon by defendant, People v. Clifton, 2019 IL App (1st)
151967, ¶¶ 8–10, unpersuasive. In fact, the other man who had his hair in dreadlocks is also
wearing a black jacket.
¶ 57 In Clifton, a divided panel of this court found that the lineup employed in the case was
unduly suggestive. All three witnesses had described the offender as having dreadlocks, a blue or
black hoodie, and white shoes. One of the three witnesses also reported that the offender was
wearing jogging pants and had a facial scar or facial tattoo. In finding the lineup to be unduly
suggestive, the Clifton court noted that the defendant was the “only participant in the lineup with
three particular articles of clothing, a unique hairstyle, and a facial feature matching the
description of the offender.” Id. at ¶ 62. The dissenting justice made a compelling case that the
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defendant failed to meet his burden of showing that the lineup was unduly suggestive. See id. at
¶¶ 94-106 (Lavin, J., concurring in part and dissenting in part).
¶ 58 Here, defendant was not wearing three specific types of clothing identified by the
witnesses. Defendant was not the only one wearing the particular type of clothing he identifies as
problematic, four out of the five men in the lineup were wearing the type of clothing identified
by the witnesses and three had dreadlocks or braids hairstyles. If a person was given the
descriptions that the witnesses gave to police and then asked to view the lineup in this case, there
would be no reasonable basis to conclude which of the participants was defendant.
¶ 59 Defendant points out that he was the tallest individual in the lineup, causing him to stick
out. But defendant’s height was not a prominent part of any witness’s prior description of
defendant. Moreover, as defendant pointed out in his argument about the inaccuracies in the
description of him that C.H. originally gave to the police, she reported he was 5’9” or 5’10” so
she was not necessarily looking for a particularly tall person or the tallest person. See People v.
Harrison, 57 Ill. App. 3d 9, 13 (1978) (lineup was not overly suggestive when the witness
described the offender as tall and defendant was the tallest one in the lineup).
¶ 60 All of the lineup participants were black males around the same age. The men were
similar in size and wearing casual clothing. Nothing about defendant made him obviously stand
out for identification when compared to the other lineup participants. Illinois courts have
routinely rejected claims of undue suggestiveness based on height differences (id.), hairstyle
differences (People v. Richardson, 123 Ill. 2d 322, 350 (1988); People v. Hartzol, 222 Ill. App.
3d 631, 642-43 (1991)), or the type of clothing being worn (People v. Bragg, 277 Ill. App. 3d
468 (1995); People v. Lopez, 93 Ill. App. 3d 152, 160 (1981)). Even in combination, the
differences between defendant and the other lineup participants are not readily apparent. Nothing
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about defendant’s hairstyle, physical appearance, or clothing choices made him noticeably stand
out from the other lineup participants, and we find that he has failed to meet his burden of
showing that the trial court’s finding that there was no undue suggestiveness was against the
manifest weight of the evidence.
¶ 61 One-Act, One-Crime Doctrine
¶ 62 Defendant argues that his kidnapping conviction must be vacated under the one-act, one-
crime doctrine. It is well established that where, as here, a defendant is found guilty of multiple
offenses based on the same act, judgment and sentence may be entered only on the most serious
offense, and the lesser offense should be vacated. People v. Smith, 233 Ill. 2d 1, 20 (2009).
Defendant failed to preserve this issue for review, but the claim is reviewable under second-
prong plain error review. People v. Coats, 2018 IL 121926, ¶ 9 (“one-act, one-crime violations
fall within the second prong of the plain error doctrine as an obvious error so serious that it
challenges the integrity of the judicial process”).
¶ 63 The State concedes that kidnapping is a lesser-included offense of aggravated criminal
sexual assault predicated on kidnapping. Under the one-act, one-crime doctrine, defendant
cannot be convicted of both offenses because kidnapping is a lesser-included offense of
aggravated criminal sexual assault predicated on kidnapping. People v. Reveles-Cordova, 2020
IL 124797, ¶ 12 (criminal sexual assault is a lesser-included offense of home invasion predicated
on criminal sexual assault). Defendant was convicted of committing the offense described in
section (a)(4) of the criminal sexual assault statute. Section (a)(4) provides that “a person
commits aggravated criminal sexual assault if that person commits criminal sexual assault and
*** the person commits the criminal sexual assault during the course of committing or
attempting to commit any other felony.” 720 ILCS 5/11-1.30(a)(4) (West 2022).
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¶ 64 Here, defendant was convicted of committing the criminal sexual assault during the
course of the felony of kidnapping. In the charging document, the State expressly stated that the
criminal sexual assault at issue “was perpetrated during the course of the commission of any
other felony, to wit: kidnaping.” Proof of kidnapping was, therefore, a necessary element of
proof of the aggravated criminal sexual assault predicated on kidnapping. As defendant points
out, “[g] iven that all the elements of kidnapping are inherently elements of aggravated criminal
sexual assault predicated on kidnapping, the kidnapping conviction is a lesser-included offense
and must be vacated.”
¶ 65 The State acknowledges the error, but contends defendant is entitled to no relief because
the trial court merged defendant’s kidnapping conviction into his aggravated criminal sexual
assault conviction. However, the record shows that the trial court entered judgment on both
convictions and entered separate sentences on the two convictions. In the judgment order, there
was an error in referencing what charges against defendant were represented by which counts of
the charging instrument. The trial court perhaps attempted to merge the kidnapping conviction
into the aggravated criminal sexual assault conviction, but the merger did not occur, and
defendant was left with both convictions and both sentences on those convictions. The
kidnapping conviction cannot stand as it violates the one-act, one-crime doctrine. Accordingly,
we vacate defendant’s kidnapping conviction.
¶ 66 Sentencing Enhancement
¶ 67 Defendant argues that the trial court erred when it applied a 15-year firearm enhancement
to his sentence for aggravated criminal sexual assault predicated on kidnapping where no such
enhancement exists for the given offense. Additionally, defendant argues that the State failed to
prove beyond a reasonable doubt that he was armed with a firearm. The State concedes on appeal
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that the firearm enhancement was not applicable to defendant’s sentence. Here, Count 5 of the
criminal complaint was for aggravated criminal sexual assault predicated on the use of a firearm.
If defendant was sentenced on that count, he would have been subject to the firearm
enhancement. However, the trial court entered judgment against defendant on Count 1, which
was for aggravated criminal sexual assault predicated on kidnapping. The trial court then merged
the other aggravated criminal sexual assault counts into Count 1.
¶ 68 The firearm enhancement does not apply to Count 1, and it was improperly applied to
defendant’s sentence. The State concedes the firearm enhancement should not have been applied
to defendant’s sentence since Count 1 did not involve defendant’s possession of a firearm as an
aggravating factor. See 720 ILCS 5/11-1.30(d)(1) (West 2022) (a 15-year sentencing
enhancement applies where the aggravating factor is the defendant’s possession of a firearm
during a sexual assault). Count 1 was simply predicated on defendant’s commission of an act of
sexual penetration during the course of a kidnapping. See 720 ILCS 5/11-1.30(a)(4) (West 2022).
¶ 69 The State argues that, despite the trial court’s sentencing error, defendant is not entitled to
relief because defendant did not object to the error during sentencing and he has failed to show
that he would have received a lower sentence but for the trial court’s misunderstanding.
¶ 70 To preserve a sentencing issue for appeal, a defendant must raise the issue in the trial
court. People v. Woods, 2018 IL App (1st) 153323, ¶ 24. An unpreserved claim of a sentencing
error may be reviewed under plain error analysis. People v. Richards, 2021 IL App (1st) 192154,
¶ 11. The defendant must first show that a clear or obvious error occurred. Id. Then, the
defendant must show that either (1) the evidence at the sentencing hearing was closely balanced
or (2) the error was so serious that it denied the defendant a fair sentencing hearing. Id.
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¶ 71 Here, defendant has shown that a clear and obvious sentencing error occurred. The State
concedes the error. Under the second prong of the plain error doctrine, we have generally held
that “a trial court’s misapplication of law to determine the applicable sentencing range is plain
error because it affects the defendant's fundamental right to liberty.” Id. at ¶ 31. Such relief is
required even though defendant’s sentence falls within the correct range. See id. (quoting People
v. Hall, 2014 IL App (1st) 122868, ¶ 15) (“even when a sentence imposed under an incorrect
sentencing range fits within the correct range, the original sentence must be vacated because the
trial court relied on the wrong sentencing range when imposing sentence”).
¶ 72 The State relies on a very recent decision from our supreme court to argue that the trial
court’s misapprehension of the applicable sentencing range does not entitle a defendant to plain
error relief where the defendant fails to demonstrate that he would have received a lower
sentence but for the court’s misunderstanding. People v. Yankaway, 2025 IL 130207, ¶ 115. In
Yankaway, the circuit court sentenced the defendant to 44 years in prison for attempted murder
but misstated the sentencing range when it stated that the defendant was subject to a 20-year
enhancement rather than the 15-year enhancement that was actually applicable. Id. at ¶¶ 43, 113.
The supreme court explained that the defendant failed to show a clear and obvious error because
it was clear the sentence was based on the seriousness of the offense and the defendant’s
commitment to a life of crime.
“The [trial] court stated that Yankaway was ‘overwhelmingly guilty’ and that his
crimes were ‘stunning’ because he and [the victim] were cousins and friends.
And, after reviewing the aggravating factors and limited mitigation, the court
found that Yankaway is ‘the person that the community needed to be afraid of,
but, worse than that, [] your own family, and your own friend needed to be afraid
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of you’ and that, ‘as difficult as this is for me to say, you are the reason prisons
are built.’ ” Yankaway, 2025 IL 130207, ¶ 114.
¶ 73 Unlike the error in Yankaway, the error here was a clear and obvious sentencing error.
Here, defendant was subject to no firearm enhancement at all, and the trial court sentenced
defendant under the belief that a 15-year firearm enhancement was part of defendant’s sentence
which the court was required to enforce. In Yankaway, the sentencing court merely mistook the
sentencing enhancement of 15 years for a sentencing enhancement of 20 years. Id. at ¶ 113. In
this case, while defendant’s conduct was clearly appalling and horrendous, the evidence against
him and the factors in aggravation and mitigation at sentencing were not as strong as against the
defendant in Yankaway.
¶ 74 The trial court specifically noted during sentencing that defendant did not have a violent
background. The trial court stated that the conduct in this case seemed to be “out of character”
for defendant. Several individuals, three family members, wrote letters in mitigation on
defendant’s behalf. Even though defendant’s sentence fell within the permissible sentencing
range, it is impossible to conclude that the trial court’s mistaken belief about the applicable
sentencing range had no impact in defendant receiving the sentence he received. Accordingly,
defendant’s sentence must be vacated and the case remanded for a new sentencing hearing.
Richards, 2021 IL App (1st) 192154, ¶ 31; People v. Hall, 2014 IL App (1st) 122868, ¶ 15.
¶ 75 CONCLUSION
¶ 76 Accordingly, we affirm in part, vacate in part, and remand the case for a new sentencing
hearing. Defendant’s conviction on Count 1 for aggravated criminal sexual assault predicated on
kidnapping is affirmed. Defendant’s conviction on Count 7 for kidnapping is vacated.
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Defendant’s sentence for aggravated criminal sexual assault is vacated and the case is remanded
for a new sentencing hearing.
¶ 77 Affirmed in part, vacated in part, and remanded for a new sentencing hearing.
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