People v. Sutherland , 2023 IL App (3d) 200286-U ( 2023 )

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).
2023 IL App (3d) 200286-UOrder filed January 20, 2023
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2023
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 21st Judicial Circuit,
) Iroquois County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-20-0286
v. ) Circuit No. 19-CF-44
)
JARED P. SUTHERLAND, ) Honorable
) James B. Kinzer,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
PRESIDING JUSTICE HOLDRIDGE delivered the judgment of the court.
Justices Hettel and Peterson concurred in the judgment.
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ORDER
¶1 Held: Evidence at trial was sufficient to prove the defendant’s guilt of criminal sexual
assault and aggravated criminal sexual abuse beyond a reasonable doubt; the
mittimus correctly reflects the court’s findings.
¶2 The defendant, Jared P. Sutherland, appeals his convictions for criminal sexual assault
and aggravated criminal sexual abuse, arguing the State failed to prove the age element of the
charged offenses beyond a reasonable doubt. The defendant also argues that the court mistakenly
entered an order finding him guilty of the incorrect count and requests, in the alternative, that the
mittimus be amended to show the correct count.
¶3 I. BACKGROUND
¶4 The State charged the defendant by 10-count indictment with predatory criminal sexual
assault of a child (720 ILCS 5/11-1.40(a)(1) (West 2018)), criminal sexual assault (id. § 11-
1.20(a)(3)), and eight counts of aggravated criminal sexual abuse (id. § 11-1.60(b), (c)(1), (d)).
The charges were all related to the sexual abuse of four of the defendant’s family members.
¶1 At issue in this appeal are counts II, III, and IV. Count II of the indictment charged the
defendant with criminal sexual assault in that, between 2002 and 2008, the defendant
“committed an act of sexual penetration with K.T., who was a family member under 18 years of
age, in that the defendant placed his penis in the anus of K.T.” Count III charged the defendant
with aggravated criminal sexual abuse in that, between 2002 and 2008, the defendant
“committed an act of sexual conduct with K.T., who was a family member under 18 years of age,
in that the defendant placed his hands and mouth on the penis of K.T.” Count IV charged the
defendant with aggravated criminal sexual abuse in that, between 2002 and 2005, the defendant,
“who was 17 years of age or older, knowingly committed the act of sexual conduct with K.T.,
who was under 13 years of age, in that said defendant placed his hands and mouth on the penis of
K.T. for the purpose of sexual arousal of the defendant.”
¶2 The defendant waived a jury and proceeded to a bench trial. At trial, K.T. testified that
the defendant was his maternal uncle and served as a caretaker for K.T. and his younger brother
when they were children. K.T. was born in August 1992. K.T. described sexual encounters with
the defendant at five different residences while the defendant cared for him. K.T. testified that
the incidents began when he was 7 or 8 years old and continued until he was 15 or 16.
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¶3 K.T. testified that the defendant lived in a trailer in Donovan (Donovan house) between
2007 and 2009, when K.T. would have been 15 or 16 years old. The defendant’s three children
would have been under five years old. K.T. testified regarding incidents at the Donovan house
where the defendant would stroke K.T.’s penis and force K.T. to stroke the defendant’s penis.
There were also incidents where the defendant forced K.T. to perform oral sex. K.T. also
described occasions where the defendant would place his penis in K.T.’s anus and K.T. placed
his penis in the defendant’s anus.
¶4 At the close of the State’s case, it dismissed counts VI and VII.
¶5 During the defendant’s case-in-chief, the court took judicial notice of petitions to
establish custody from a family law case involving the defendant’s children. These documents
showed that the defendant’s children were born in March 2006, July 2008, and September 2009.
¶6 The defendant denied abusing K.T. and stated that K.T. made up the accusations because
K.T. blamed the defendant for his younger brother becoming a ward of the State. The defendant
also testified that he moved into the Donovan house in late 2010. K.T. lived with the defendant
there for a brief period in 2011, after he turned 18 years old. The defendant supported his
testimony by producing the property deed, showing the purchase date in September 2010.
¶7 The court found
“[T]he State proved by a beyond a reasonable doubt burden of proof the rectal
intercourse allegation in Count 2 with respect to [K.T.], the digital fondling in
Count 3 and the digital fondling in Count 5. And I find that the ages there were
consistent with [K.T.]’s testimony. I know [the defendant] was careful to make
sure that his allegation with respect to the Donovan house was that [K.T.] would
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have been over 18 at that point, but [K.T.] testified that he was under I think he
said 15 or 16 when this rectal intercourse event occurred.
*** I find [the defendant] guilty of Count 2, guilty of Count 4, guilty of
Count 5 and guilty of Count 9 and not guilty of Count 8 and not guilty of Count
3.”
The parties asked for confirmation that the court found the defendant guilty on count IV and not
count III, which the court confirmed.
¶8 At sentencing, the court stated that the defendant had been found guilty of counts II, III,
V, and IX. The court sentenced the defendant to seven years’ imprisonment for count II, to be
served consecutively with three concurrent terms of three years’ imprisonment for counts III, V,
and IX. The written order lists the sentencing decisions for counts II, III, V, and IX. The
defendant appeals.
¶9 II. ANALYSIS
¶ 10 A. Sufficiency of the Evidence
¶ 11 The defendant raises two sufficiency of the evidence issues. In a challenge to the
sufficiency of the evidence, we determine whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. People v. Baskerville, 2012 IL
111056, ¶ 31; People v. Collins, 106 Ill. 2d 237, 261 (1985). In making this determination, we
review the evidence in the light most favorable to the prosecution. Baskerville, 2012 IL 111056,
¶ 31.
¶ 12 It is not the purpose of a reviewing court to retry a defendant. People v. Milka, 211 Ill. 2d
150, 178 (2004). Instead, great deference is given to the trier of fact. See, e.g., People v. Saxon,
374 Ill. App. 3d 409, 416-17 (2007). All reasonable inferences from the record in favor of the
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prosecution will be allowed. People v. Bush, 214 Ill. 2d 318, 326 (2005). “ ‘Where evidence is
presented and such evidence is capable of producing conflicting inferences, it is best left to the
trier of fact for proper resolution.’ ” Saxon, 374 Ill. App. 3d at 416 (quoting People v. McDonald,
168 Ill. 2d 420, 447 (1995)). The trier of fact is not required to accept or otherwise seek out any
explanations of the evidence that are consistent with a defendant’s innocence; nor is the trier of
fact required to disregard any inferences that flow from the evidence. People v. Sutherland, 223
Ill. 2d 187, 233 (2006); see also Saxon, 374 Ill. App. 3d at 416-17. “[T]he testimony of a single
witness, if positive and credible, is sufficient to convict, even though it is contradicted by the
defendant.” People v. Siguenza-Brito, 235 Ill. 2d 213, 228 (2009). “A conviction will be reversed
only where the evidence is so unreasonable, improbable, or unsatisfactory that it justifies a
reasonable doubt of the defendant’s guilt.” People v. Belknap, 2014 IL 117094, ¶ 67.
¶ 13 1. Count II
¶ 14 The defendant contends that the State failed to prove him guilty beyond a reasonable
doubt of criminal sexual assault because the evidence was insufficient to prove that K.T. was
under 18 years old at the time of the incident.
¶ 15 As charged in count II, “[a] person commits criminal sexual assault if that person
commits an act of sexual penetration and: *** is a family member of the victim, and the victim is
under 18 years of age.” 720 ILCS 5/11-1.20(a)(3) (West 2018).
¶ 16 Here, K.T.’s testimony established that the defendant committed criminal sexual assault
when, according to K.T., he was under 18 years old. Although the defendant’s testimony
indicated that K.T. was over 18 years old when they lived together, this presented a credibility
determination for the fact finder. From our review, the court reasonably resolved this factual
question by finding that K.T.’s allegations and testimony were credible. Accordingly, we defer to
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this credibility finding and conclude the evidence was sufficient to prove the defendant’s guilt of
criminal sexual assault beyond a reasonable doubt.
¶ 17 2. Count III
¶ 18 The defendant argues the evidence was insufficient to support his conviction for count
III, aggravated criminal sexual abuse because, like his argument on the first issue, the State failed
to prove K.T. was under the age of 18 at the time of the offense. Count III requires a showing
that the defendant “commit[ed] an act of sexual conduct with a victim who is under 18 years of
age and the person is a family member.” 720 ILCS 5/11-1.60(b) (West 2018). As found above,
K.T.’s testimony sufficiently established that he was under 18 years old at the time of the
charged offenses. Supra ¶ 16. In doing so, we reaffirm that questions of witness credibility are
best left to the trier of fact who determined that these witnesses were credible. See Siguenza-
Brito, 235 Ill. 2d at 228. Consistent with our holding for count II, we find the evidence proved
beyond a reasonable doubt the allegations in count III.
¶ 19 B. Mittimus
¶ 20 The defendant asks this court to correct the mittimus to show a conviction for count IV
instead of count III because the court erroneously entered a conviction on count IV after finding
the defendant guilty of count III.
¶ 21 It is well-settled that “[i]t is the oral pronouncement of the judge which is the judgment of
the court. The written order of commitment is merely evidence of the judgment of the court.
[Citation.] When the oral pronouncement of the court and the written order are in conflict, the
oral pronouncement of the court controls.” People v. Smith, 242 Ill. App. 3d 399, 402 (1993).
¶ 22 While the record shows there was confusion regarding which count the court intended to
enter conviction on, it is clear that the court intended to enter judgment on count III. While the
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court stated once that it found the defendant guilty of count IV, it subsequently stated, while
explaining its verdict and at several court hearings afterwards, that the defendant was guilty of
count III and not count IV. Thus, the court’s oral pronouncement ultimately established that it
intended to find the defendant guilty of count III. Further, the court’s written sentencing order
and the docket entry confirm that the court found the defendant guilty of count III.
¶ 23 III. CONCLUSION
¶ 24 The judgment of the circuit court of Iroquois County is affirmed.
¶ 25 Affirmed.
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