People v. Pelo ( 2010 )

Filed 10/6/10 NO. 4-08-0758
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
JEFFREY PELO, ) Nos. 06CF581
Defendant-Appellant. ) 06CF679
)
) Honorable
) Robert L. Freitag,
) Judge Presiding.
_________________________________________________________________
JUSTICE STEIGMANN delivered the opinion of the court:
In June 2006, the State charged defendant, Jeffrey
Pelo, a Bloomington police sergeant, with 37 counts of criminal
conduct originating from two separate cases (McLean County case
Nos. 06-CF-581 and 06-CF-679). Specifically, the State alleged
that between December 2002 and June 2006, defendant committed a
series of crimes involving the stalking, intimidation, home
invasion, residential burglary, unlawful restraint, and aggra-
vated criminal sexual assault of five women from the Bloomington-
Normal community.
In June 2008, a jury convicted defendant of all 37
counts. Following an August 2008 sentencing hearing at which the
trial court (1) merged several of defendant's convictions pursu-
ant to the one-act, one-crime rule and (2) imposed several
statutorily mandated sentencing enhancements, the court sentenced
defendant to a series of consecutive terms of imprisonment,
totaling 440 years.
Defendant appeals, arguing that (1) the trial court
erred by (a) allowing the State to introduce into evidence dozens
of exhibits involving, among other things, graphic pornographic
images and text, including depictions of rape, found in defen-
dant's home computer, (b) denying his motion for change of venue,
(c) excluding the testimony of his expert witness, and (d)
failing to question jurors regarding the presumption that he was
innocent until proven guilty; (2) the State failed to prove
beyond a reasonable doubt that he sexually assaulted one of the
victims, A.M.; and (3) his sentencing enhancements for the
aggravated criminal sexual assaults against victims K.H., A.L.,
and S.K. violate the proportionate-penalties clause of the
Illinois Constitution (Ill. Const. 1970, art. I, §11). Because
we agree only that defendant's last argument requires remand, we
affirm in part, vacate in part, and remand with directions.
I. BACKGROUND
A. The Charges in This Case
1. Case No. 06-CF-581
In June 2006, the State charged defendant with (1)
attempt (residential burglary) (720 ILCS 5/8-4, 19-3(a) (West
2006)), alleging that defendant attempted to gain entry into
J.P.'s residence with the intent to commit a felony or theft and
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(2) stalking (720 ILCS 5/12-7.3(a)(2) (West 2006)), alleging that
defendant "followed and/or surveilled" J.P. on at least two
separate occasions, placing her in reasonable apprehension of
immediate or future bodily harm, sexual assault, confinement, or
restraint. These offenses allegedly occurred in 2005 and 2006.
2. Case No. 06-CF-679
In August 2006, the State charged defendant with 35
counts involving crimes it alleged that he committed against
S.K., A.L., K.H., and A.M., which took place between December
2002 and June 2006.
a. The Counts Involving S.K.
The State charged defendant with home invasion (720
ILCS 5/12-11(a)(1), (a)(3) (West 2006)), in that he entered
S.K.'s home with a firearm and knife, threatening S.K. with the
imminent use of those weapons (counts I and II); aggravated
criminal sexual assault (720 ILCS 5/12-14(a)(1), (a)(8) (West
2006)), in that he sexually penetrated S.K.'s vagina and anus by
the use of force, while armed with a firearm and knife (counts
III through XX); (3) residential burglary (720 ILCS 5/19-3(a)
(West 2006)), in that he entered S.K.'s home with the intent to
commit a felony (count XXI); (4) aggravated unlawful restraint
(720 ILCS 5/10-3.1(a) (West 2006)), in that he unlawfully de-
tained S.K. with a firearm or knife (count XXII); and (5) intimi-
dation (720 ILCS 5/12-6(a)(1) (West 2006)), in that he threatened
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to harm S.K.'s family if she reported the sexual assault (count
XXIII).
b. The Counts Involving A.L.
The State charged defendant with (1) home invasion (720
ILCS 5/12-11(a)(1) (West 2006)), in that he entered A.L.'s home
and threatened her with a knife (counts XXIV); (2) aggravated
criminal sexual assault (720 ILCS 5/12-14(a)(1) (West 2006)), in
that he penetrated A.L.'s vagina, while threatening her with a
knife (count XXV); (3) residential burglary (720 ILCS 5/19-3(a)
(West 2006)), in that he entered A.L.'s home with the intent to
commit a felony (count XXVI); and (4) aggravated unlawful re-
straint (720 ILCS 5/10-3.1(a) (West 2006)), in that he detained
A.L. at knifepoint (count XXVII).
c. The Counts Involving K.H.
The State charged defendant with (1) aggravated crimi-
nal sexual assault (720 ILCS 5/12-14(a)(1), (a)(8) (West 2006)),
in that he sexually penetrated K.H.'s vagina by the use of force,
while armed with a firearm and an object that he led K.H. to
believe was a dangerous weapon (counts XXVIII through XXXI).
d. The Counts Involving A.M.
The State charged defendant with (1) aggravated crimi-
nal sexual assault (720 ILCS 5/12-14(a)(1) (West 2006)), in that
he sexually penetrated A.M.'s vagina by the use of force, while
armed with a knife and an object he led A.M. to believe was a
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dangerous weapon (counts XXXII through XXXV).
In October 2006, the State filed an amended motion for
joinder and consolidation in both cases (case Nos. 06-CF-581 and
06-CF-679), which the trial court later granted.
B. Pretrial Issues in This Case
Prior to defendant's jury trial, which began in May
2008, the trial court addressed, in pertinent part, (1) defen-
dant's request (a) for a change of venue and (b) to limit the
State's evidence and (2) the State's request to bar defendant's
eyewitness-identification expert.
1. Defendant's Request for a Change of Venue
In February 2008, defendant filed a motion for change
of venue, asserting that the "substantial publicity *** in the
local print and electronic media, circulated [and] broadcast [in
the] county, *** aro[used] and incite[d] the passions of the
community to [his] prejudice." Following a March 2008 hearing,
the trial court denied defendant's motion without prejudice,
explaining its ruling as follows:
"[T]he [c]ourt has a duty to *** ensure
that *** defendant receives a fair trial.
That *** includes a trial in front of a fair
and impartial jury. ***
[However], the mere fact that there has
been potentially harmful publicity in the
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community in and of itself *** does not es-
tablish that there is community prejudice
sufficient to warrant a change of [venue].
*** [The court] think[s] it is *** clear ***
that jurors are not required to be completely
ignorant of the case; but rather, *** it must
be shown that the jurors may set aside any
impressions or opinions that they may have
*** and render a verdict based only on the
evidence presented at trial.
***
The other principle *** [that] the
[c]ourt is required to be guided by *** is
that *** examination of the prospective ju-
rors is the best way, the most valuable [way
to] determin[e] whether *** pretrial public-
ity has rendered a fair trial in a certain
location to be impossible.
*** [T]he [c]ourt's belief [is] that
voir dire is intended to do just that, [whic-
h] is to ensure that those jurors who are
selected and sworn to hear the evidence are
not going to be influenced by any pretrial
publicity. ***
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***
The [c]ourt does not believe that the
subject matter of publicity [that] has been
presented in this case *** indicates that it
would be impossible to find 12 jurors and
several alternatives *** from this county,
but of course[,] the [c]ourt can't hold that
because we haven't begun the selection of the
jurors yet. ***
For all those reasons, the [c]ourt does
not believe that the granting of a motion for
a change of [venue] is appropriate at this
time. The motion for change of [venue] is
denied. With regard to that motion, of
course, *** defendant has the right to renew
that motion ***."
2. Defendant's Request To Limit the State's Evidence
In November 2007, the State filed a motion in limine,
seeking to use evidence of defendant's "other misconduct," which
included pornography recovered from defendant's home computer, to
show defendant's identity; motive; intent; modus operandi; the
existence of a common scheme, plan, or design; or continuing
narrative. Specifically, the State sought permission to intro-
duce evidence related to case Nos. 06-CF-581 and 06-CF-679--that
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is, evidence of all the charges against defendant and other
related misconduct--interchangeably because all of the incidents
(1) involved (a) similar victims; (b) restraint of the victim;
(c) prior surveillance; (d) the use of similar equipment, tools,
and habiliments; (e) a linear progression of time spent at the
crime scene; and (f) a suspect who was wearing similar clothing,
and (2) occurred at approximately the same time of day.
Defendant broached the other-bad-acts evidence issue at
a hearing on several pending motions, as follows:
"[The State] *** filed a motion to let
it in. [T]he first thing I was going to
address here was that [the State] need[s] to
identify what information they are going to
try to bring in to show identity, motive,
intent, modus operandi, [and] common scheme,
plan[, or] design. ***
I don't know how looking [at] pornogra-
phy is going to tend to identify [defendant]
as the attacker of these women, how it shows
motive, intent, modus operandi, or any other
existence of a common scheme, plan, or de-
sign. I think this motion needs to be ad-
dressed before we go to trial ***."
At a May 2008 hearing, the prosecutor responded as
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follows:
"[I]t is the State's intention to show[-
,] *** through *** images on *** defendant's
computer[,] *** motive, *** intent, *** a
design or resolve ***, [and] modus operandi
***.
* * *
[A]s I have presented to the [c]ourt,
the bullet points from the four sexual as-
saults in this case [(case No. 06-CF-679)],
*** from the way those assaults occurred
[and] the items that we have found and lo-
cated on *** defendant's computer, he was
acting in a very [specific] capacity. ***
[T]he ones that stands out the most [is
K.H.'s]. She was assaulted back on April
4[,] 2003. During that time, *** defendant
had her remove the duct tape that he had
placed on her and instructed her to put her
finger in her vagina, [and] told her to put
in the vibrator ***[.] [H]e also made the
statement [that he wanted] her to do those
acts because it gets him off. When you look
at the images that were located on *** defen-
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dant's computer, the endless streams of indi-
viduals *** having items inserted into them,
*** female masturbation, it was certainly
something that he was interested in [and]
enjoyed watching, not only on the computer,
but also during the acts when these sexual
assaults were committed. Numerous images on
the computer *** are images of foreign ob-
jects being placed inside of the women. And
in *** [S.K.'s] assault[], *** [a] vibrator
was used. He forced her to use her hand.
And, [in the case of A.L.], asked her for sex
toys[,] said he enjoyed penetrating masturba-
tion by women, [and] mentioned a beer bottle
to be used on her. And [the court] can see
images on these exhibits *** where *** beer
bottles *** were being used. In each of the
four assaults [in case No. 06-CF-679] ***
weapons were being displayed ***. ***
[S]pecific graphic images of forced fellatio
[show] *** a knife [being] held to the vic-
tim's head and [in] another a gun is held to
the victim's head. And that[] specifically
happened in these cases. *** I submit to
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the [c]ourt that *** what the images show on
the computer is just as he directed the vic-
tim. This is what he enjoyed. This is what
gets him off, and what he was [looking at] on
the computer [was] the same [thing] he was
doing with these victims.
Again, every one of the victims were
bound, attempted to be bound, ropes around
their necks. *** And when [the court]
look[s] at the images on the computer, just
about every one of the forced sex categories
has the women, not only bound, but [also]
ropes and bindings around their neck. In ***
one video, it showed two women being bound.
[During A.M.'s attack], he was asking con-
stantly about her roommate and asking where
she was at[,] *** comment[ing] *** that if
the roommate was home, he would do the same
thing to her. ***
As for the videos that showed the forced
witness, the State believes that those videos
are important [because] *** each time ***
defendant raped these four victims, he con-
stantly was asking them about boyfriends and
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asking them specifically about others that
they were involved with. And when [S.K.] was
trying to speak with him, trying to show that
she was a human being and not just an object,
she was referring to her upcoming wedding.
And when *** defendant heard this ***, *** he
seemed to get very happy that a third party
was going to be devastated by his actions.
And I think that *** the videos that he was
watching [show that] he did enjoy devastat-
ing, not only his victims, but also the
victim[s'] families and those around [them].
*** And again, *** covers were put over [the
victims'] heads, pillowcases, pillows to
blind them. [There were] numerous images ***
showing the same type of activity. [A]gain,
weapons were used in each [assault], knives
or pistols or, on more than one occasion,
both of those were used. These images[] ***
show a common design, a common scheme in ***
defendant's activities. And we do feel that
they are relevant and more probative than
prejudicial on these select images as to the
conduct of *** defendant engaged in [the]
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aggravated criminal sexual assaults against
these victims."
The defense responded as follows:
"The State referred to several reasons
for bringing [in] this type of evidence.
First of all, [the State] mentioned motive.
Motive is a reason why some[one] does some-
thing. *** These images do not relate to
motive in any way. Intent is used to show
lack of mistake or accident. Some[one] obvi-
ously contemplates something. *** Again,
watching a video does not go to intent.
[There] is not anything really unique
about the videos or the assault[s] which is
going to be showing modus operandi.
And for identity, *** nothing in these
videos helps the State identify [defendant]
as being the attacker of any one of these
women.
* * *
Not only does the State have a problem
[with] not being able to show the images were
viewed *** by *** defendant ***, all they can
[prove] is that the images were found on a
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computer located in his home and that he
wasn't at work [at that time]. *** [L]ooki-
ng at the *** computer images, [even] if [the
State] can *** prove [defendant looked at
these images], [l]ooking at those images does
not tend to prove or disprove or make more
likely or less likely that he sexually as-
saulted any of the complaining witnesses and
should be excluded."
After a short recess to consider counsel's arguments,
accompanying motions, and pertinent case law, the trial court
made the following ruling:
"With regard to the [State's] motion
regarding computer evidence, the [c]ourt has
carefully considered all of the evidence
presented today ***.
The issue is similar [to each] of the
issue[s from] the [series of] earlier
motion[s] and that is whether *** evidence of
other bad acts is admissible in this case.
*** [T]his is obviously not a situation where
the State is seeking admission of this evi-
dence under the propensity statute[.] ***
[H]ere[,] we're talking about what can be
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termed *** bad acts or other conduct[, which
is] the alleged viewing of various types of
pornography on a home computer.
* * *
*** [T]here are certainly similarities
in each of the charged offenses. There are
factors that are common to all of them and
primarily those involving the victims being
bound in some way. Obviously, force being
used, objects being used, and weapons being
used, either knives or firearms. Those com-
mon elements are present in all four [as-
saults].
*** The evidence itself, the pornography
***, much of what was presented today has
elements that are common with those elements
found in the offenses here, specifically[,]
*** bondage, use of weapons, use of objects,
and *** use of force. In very carefully
considering all of those factors, the first
question the [c]ourt has to decide is whether
the evidence offered is relevant ***. The
[c]ourt believes that the evidence presented
by the State here today, the pornography
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evidence, is relevant to those aspects that
are shared by some of the items presented in
the offense[s] here; that being, specifi-
cally, the forced sex or rape websites and
photographs, the bondage, the use of foreign
objects, and *** the viewing of female mas-
turbation. Those are all common elements
between the *** tendered or proffered evi-
dence and the evidence of the offenses. ***
There are some items that are being
offered, however, that [the court does not]
think are relevant. [Specifically,] those
websites and the videos that had to do with
*** forced witness ***. Those videos called
[']forced witness['] as well as the video
that ended with a shower scene ***, the
[c]ourt just doesn't see that as relevant.
***
So the bottom[-]line ruling is that [the
court] *** find[s] that those sites and pho-
tographs and images that have to do with
forced sex, rape, bondage, the use of foreign
objects, and observations of female masturba-
tion are relevant. The others regarding
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forced witnesses and the shower video are not
relevant to the charges.
[T]hat leaves us with the question [of
whether] *** the probative value of those
items [is] outweighed by its prejudicial
[e]ffect[.] Obviously, the introduction of
these items would have some prejudicial
[e]ffect. *** Otherwise, the State wouldn't
be seeking to introduce it. *** The [c]ourt
believe[s] that the probative value is high.
The prejudicial [e]ffect is also high. And
so the balancing has to be done very care-
fully.
* * *
[Having] go[ne] through all of the case
law *** and [having] weighed the prejudicial
effect of the photographs against their pro-
bative value. *** After carefully consider-
ing it, the [c]ourt believes that the proba-
tive value of these websites and photographs
does, in fact, outweigh the prejudicial
[e]ffect of their admission in this case.
With the exception of those that [that court]
ha[s] indicated are not relevant, the [c]ourt
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will allow the [State's] motion in limine
***. The [c]ourt will deny the motion as it
pertains to those items from the forced wit-
ness websites and the video involving the
shower."
3. The State's Request To Bar Defendant's Expert
In March 2008, the State filed a motion in limine,
seeking to bar defendant's eyewitness identification expert, Dr.
Solomon Fulero. Specifically, the State requested, in pertinent
part, that the trial court bar Fulero from testifying because
Fulero's testimony would not aid the trier of fact in rendering
its verdict. In April 2008, defendant responded, arguing that
Fulero would aid the jury because issues with mistaken identifi-
cation were a general problem in criminal trials, particularly in
cases involving sexual assault.
Following an April 7, 2008, hearing on the State's
motion to exclude Fulero, the trial court found as follows:
"With regard to the other argument the
State has presented that expert testimony is
generally not admissible in the area of eye-
witness identification[,] *** the Illinois
Supreme Court and the reviewing courts have
cautioned trial courts in allowing expert
testimony in this area. *** I am not certain
- 18 -
that it should be characterized as the State
has in that the rule is that it is not gener-
ally admissible. [R]ather[,] the recent
cases indicate that trial courts need to be
very cautious about allowing such evidence
because *** it tends to invade the province
of the jury in determining credibility of
witnesses. *** There has been some evidence
presented about certain identification. [The
court does not] know if there is other iden-
tification that [it] hasn't heard about.
[F]rankly[, the court is] very frus-
trated at that. [The court is] at a loss in
how to *** rule on this motion without [know-
ing what] the evidence *** is going to be.
So[, the court's] ruling on the State's
[m]otion *** i[s] this; the motion is allowed
unless and until the court is presented with
certain evidence that this eyewitness expert
has real probative evidence that does not
invade the province of the jury in determin-
ing credibility of witnesses."
On April 21, 2008, defendant filed a motion to recon-
sider the trial court's order, barring Fulero's testimony. At a
- 19 -
hearing on that motion held three days later, the court denied
defendant's motion for failure to make a specific offer of proof.
C. Jury Selection in This Case
1. The Trial Court's Admonishments and Questions
Related to the Presumption of Innocence
In May 2008, the trial court addressed the parties as
follows:
"We will begin the jury[-]selection process
in this case shortly. But before we do that,
*** we need to make a bit of a record ***.
We had a discussion regarding the jury selec-
tion process and to briefly summarize, the
[c]ourt is summoning [40] potential jurors to
the courtroom here in a few minutes. Upon
their arrival, the [c]ourt will be engaging
in some opening remarks to the potential
jurors regarding the nature of the case,
discussing the charges that are pending,
indicating the names of potential witnesses,
and introducing the parties and the attorneys
to the jurors. *** [W]hen the opening re-
marks are completed, the clerk will call the
names of the first four jurors on the list
that have been provided to counsel. Those
four potential jurors will remain in the
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courtroom for individual questioning by the
[c]ourt and attorneys. The remaining [36]
jurors will be excused back to the jury as-
sembly room after the [c]ourt has admonished
them ***. Those [36] jurors will remain in
the jury assembly room in a separate area
from the other potential jurors who are here
for trial in the building today until they
are needed again in the courtroom."
Shortly thereafter, the trial court explained to the
40-person pool of potential jurors, among other things, (1) what
the court expected of them generally and (2) how the jury-selec-
tion process would work. Specifically, the court explained its
expectations as follows:
"Ladies and gentlemen, in this case,
[defendant], as with any other person who is
charged with a crime, is presumed innocent of
the charges that bring him before you. This
presumption is with him now at the onset of
this trial, and it will remain with him
throughout the course of the proceedings ***.
[This] is not overcome unless and until each
of you individually and collectively are
convinced beyond a reasonable doubt that ***
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[d]efendant is guilty. It is absolutely
essential as we select this jury that each of
you understands and employs these certain
fundamental principles; that is, that all
persons charged with a crime are presumed to
be innocent. And it is the burden of the
State *** to prove *** [d]efendant guilty
beyond a reasonable doubt. What this means
is that *** [d]efendant has no obligation to
testify in his own behalf or to call any
witnesses in his defense. ***
The fact that *** [d]efendant chooses
not to testify must not be considered by you
in any way in arriving at your verdict. ***
The bottom line, however, is that there
is no burden upon *** [d]efendant to prove
his innocence. It is the State's burden to
prove him guilty beyond a reasonable doubt.
* * *
The [c]ourt and counsel are going to
begin questioning you in panels of four ***."
The court then seated the first four potential jurors. As part
of its questioning, the court asked the group of four, in perti-
nent part, the following questions, to which the jurors responded
- 22 -
as a unit:
"[THE COURT: W]hen [the court] was ad-
dressing the entire group, [it] touched on
some general principles of the law that apply
to all criminal cases. Now, one of those was
the presumption of innocence. Do each of you
understand and accept that this means that
*** [d]efendant does not need to prove his
innocence?
Seeing all positive responses.
***
[THE COURT:] Do each of you understand
that he does not need to testify, and that if
he chooses not to testify, that you must not
consider that in any way in arriving at a
verdict? Each of you understand that?
Seeing all positive responses."
The court asked the same questions to each successive group of
similarly situated potential jurors.
2. Defendant's Renewal of His Motion for Change of Venue
On the third day of jury selection, defendant exhausted
his peremptory challenges and shortly thereafter renewed his
motion for change of venue, arguing that the venire had "formed
opinions in this case." The trial court denied defendant's
- 23 -
motion, finding as follows:
"Thus far in the jury[-]selection pro-
cess, [the court and the parties] have inter-
viewed thirty-eight individuals. Defendant
has made a challenge for cause on several of
those individuals based on what they said
about opinions that they held [in light of
local] media coverage. The [c]ourt has
granted several of those motions. The [c]ou-
rt has denied several motions for cause on
the grounds that the [c]ourt found that the
responses of those jurors, while they indi-
cated they had perhaps read or heard things
and formed some sort of opinion, they were
either not familiar with any facts in the
case, and they also indicated that they could
set aside their opinions and what they may
have read and still judge the case only on
the law and the evidence. The [c]ourt be-
lieves that the rulings in regard to all of
those challenges for cause that were denied
[were] appropriate. And, obviously, ***
defendant has used some peremptory challenges
for a couple of those jurors ***. *** [A]t
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this point, [the court] think[s] the record
is pretty clear that [this case] has not ***
even come close to reaching the point of
impossibility of selecting a fair and impar-
tial jury in this county."
D. Defendant's Trial
1. The State's Evidence
At defendant's trial--which began in May 2008--the
State called more than 60 witnesses to testify that between
December 2002 and June 2006, defendant--a Bloomington, Illinois,
police sergeant--committed a series of signature crimes against
women in the Bloomington-Normal community. The State presented
evidence that defendant (1) used his resources as a police
officer to discover the personal information of a number of
individuals, including some of the victims; (2) ran his own
license plate number following one of the sexual assaults to
determine whether his vehicle had been reported; (3) viewed
graphic pornography on his home computer that depicted women (a)
being raped, abused, and assaulted with, among other things, beer
bottles and (b) pleasuring themselves with their fingers and
various sex toys; (4) had access to a hooded sweatshirt labeled
"England," which he may have purchased on a family vacation to
London, England, several years before the sexual assaults; (5)
owned (a) black gloves with velcro wristbands, (b) rope, (c)
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black ski masks, (d) a black coat, (e) folding knives, and (f)
multiple guns; and (6) had (a) been seen peering into residential
windows, (b) been seen driving his personal vehicle early in the
morning by fellow Bloomington police officers, who described him
as having acted suspiciously, and (c) followed and investigated
J.K., as well as removed the screens from her apartment window.
a. Evidence Related to A.M.
A.M. testified that in December 2002, she awoke at 4:30
a.m. to discover an intruder standing in the doorway to the
bedroom of her Bloomington apartment. He was shining a flash-
light at her. She "freaked out[.]" He ran over to her and
covered her mouth with his hands. He put "twine" around her
neck, which she convinced him to remove by promising not to
scream. He then put a knife against her head and ordered her to
take off her shorts and underwear. She resisted. He told her
that if she did not comply, he would cut her throat. She com-
plied, and he inserted his finger into her vagina and then
performed oral sex on her. He then ordered her to roll over onto
her stomach. He put his fingers into her vagina again. He said,
"Tell me why I shouldn't rape you." She responded that she did
not know. He abruptly stopped, told her to put her face in her
pillow, said he would be "right back," and walked out of her
bedroom. When she heard the apartment door shut, she locked the
bedroom door and called the police. She added that at some point
- 26 -
during the assault, he told her that he had been (1) watching her
from across the street and (2) planning to do the same thing to
her roommate.
A.M. described the intruder as a white male who was
wearing a black ski mask, black "Carhartt" coat, and jeans. She
also told the jury that her (1) license plate at the time of the
assault read "AMOJO 58" and (2) roommate's license at the time of
the assault read "LACYJO 5." Those two license plates, "AMOJO
58" and "LACYJO 5," were run--for no apparent legitimate law
enforcement reason--the month before A.M.'s assault by "JPELO,"
using the Bloomington police department's Law Enforcement Agency
Data System (LEADS). That same month, someone logged in as "J.
Pelo" at the Bloomington police department accessed A.M.'s
parents' personal information through the National Crime Informa-
tion Center (NCIC) database.
b. Evidence Related to K.H.
K.H. testified that in April 2003 she went to sleep in
her Bloomington apartment around 12:30 a.m. Sometime after she
went to sleep, she awoke to find an intruder standing in her
doorway, shining "a small round light" on her. The next thing
she knew, the man was on top of her. He put his gloved hand over
her mouth and told her not to scream. He said that he did not
want to hurt her, but that if she screamed, he would shoot her.
The intruder ripped the sheets from K.H.'s bed. He
- 27 -
then tied her hands behind her back with "zip ties" and rolled
her over to duct-tape her mouth. She complained that the zip
ties were too tight. He cut the zip ties off and bound her
wrists with duct tape. He also placed duct tape across her
mouth, eyes, and head. He then placed one of her pillowcases
over her head. He proceeded to suck on her right nipple. He
then licked her vagina and clitoris, placing a gun on her chest
and threatening to kill her when she appeared to object. He got
off the bed, removed some of his clothes, and ripped open a
package. He got back on top of her and rubbed his un-erect penis
between her legs and along her vagina. He asked her, "Do you
have a boyfriend?" "Do you shave yourself or is that for your
boyfriend?" "Do you live here with anybody?" "Where does your
boyfriend live?" And, "How old are you?" She could not answer
because of the duct tape on her mouth. He stopped and stepped
away. When he came back, he was "more erect." He then pene-
trated her vagina for "a few thrust[s]."
The intruder got off the bed, told K.H. to stand up,
and rubbed his hands over her breasts and between her legs. He
then left the room. He came back a short time later, took her
cellular telephone off the charger, and ordered her into the
bathroom. He told her to get into the bathtub. She complied and
he cut the duct tape off of her wrists. He turned on the water
and told her to put four fingers into her vagina "as far as [she]
- 28 -
could put them and then to move them in and out." He told her
that he liked that and then asked her if she had any dildos or
vibrators. She indicated that she did. He left the bathroom and
returned with a vibrator.
The intruder then inserted the vibrator into K.H.'s
vagina. After some time, he took the vibrator out and placed it
against her anus, asking her whether she "had ever done it
there." She indicated that she had not and did not want to. He
placed the vibrator back into her vagina. He then ordered her to
do it to herself, instructing her to "do it hard like you like
it." He added (1) that was the way he liked it and (2) she was
"getting [him] off." After a while, she realized that he had
left. She got out of the bathtub, cut the duct tape off of her
head, and called the police from her home telephone.
K.H. further testified that the intruder was a white
male who was wearing a black ski mask, a black jacket, jeans, and
black gloves "like [the] kind *** football players [wear.]" When
shown a photographic lineup, K.H. indicated that defendant's eyes
were familiar. In response to voice exemplars, she eliminated
five of the eight samples. (Defendant's voice was not one of the
five exemplars she eliminated.)
The State also presented evidence to show that (1) in
October 2002--six months prior to K.H.'s assault--someone logged
in as "J. Pelo" at the Bloomington police department accessed
- 29 -
K.H.'s and K.H.'s father's personal information through the NCIC
database and (2) in February 2003--two months before K.H.'s
assault--someone logged in as "JPELO" accessed K.H.'s information
using the Bloomington police department's LEADS system.
c. Evidence Related to A.L.
A.L. testified that in July 2004 she was arrested for
driving under the influence (DUI). Shortly after her DUI arrest,
a "tall man in black" walked into her apartment between 11 p.m.
and 2 a.m. She yelled, "Help!" and the man ran out the door. In
the early winter of that same year, she "woke up to [find]
someone on the steps *** to her apartment, which [were] right in
front of the window where [she] sle[pt]." She looked out the
door and yelled at the person, but she was only able to see the
person's feet.
In January 2005, A.L. went to bed between 11 p.m. and
midnight. She awoke to find an intruder in a ski mask standing
at the end of her bed. The intruder, who had a flashlight, said
he did not want to hurt her. He forced her to roll onto her
stomach. She resisted, and he put a "rope cord" with a "slip
knot or a double loop" around her neck. After putting the rope
around her neck, he turned her onto her back, showed her a knife,
and told her that he had a gun. He then bound her wrists to-
gether with a zip tie. He ordered her to take off her shorts.
She replied that she could not take her shorts off because her
- 30 -
hands were tied. He responded, "Yes, you can. I have done this
before." He then assisted her in taking her shorts off and
closely "examined" her pelvic area and chest. He threw her
blankets and clothes off the bed and continued examining her
body. He commented that she was "beautiful" and that he liked
female masturbation where "the female would insert something into
her vagina to manipulate herself." He also told her that (1) he
had been watching her and (2) she had almost caught him trying to
enter her apartment a couple of times.
The intruder asked A.L. whether she had any "sex toys,
dildos, [or] vibrators." She responded that she did not. He
then asked her whether she had any beer bottles. She said that
she did not. He forced her to manipulate her "pelvic, clitoral
area" for two or three minutes, while he watched. He next told
her that it was time for "the whole thing," and she pleaded with
him to use a condom. She retrieved a condom from the bathroom.
He pulled his pants down and attempted to put the condom on.
However, he was unable to do so because he did not have a full
erection. Eventually, he was able to get the condom on his
penis. He then attempted to penetrate her vagina but was having
difficulty because his penis was never fully erect.
The intruder then told A.L. that she had "managed to
talk [him] out of the mood." He told her to get up and "run a
bath." She did, and he told her to get in and wash herself. He
- 31 -
then left the bathroom. After a short time, she got out of the
bathtub to try to cut the zip ties off of her hands. While she
was doing that, the intruder opened the bathroom door, holding a
towel and her cellular telephone. He left the bathroom again.
He eventually came back and cut the zip ties off her wrists. He
told her not to call the police and said that he would be watch-
ing her. When she heard him leave, she called the police from
her cellular phone. (He had apparently left the cellular tele-
phone in her apartment despite having carried it into the bath-
room.)
A.L. testified that the intruder was a white male who
was wearing dark clothing, a ski mask, gloves with velcro wrists,
and a sweatshirt with (1) a hood and (2) the word "England" on
the front of it. She added that the hood of the sweatshirt was
pulled over the ski mask. (To show that defendant owned such a
sweatshirt, the State introduced photographs of his family
wearing similar sweatshirts while on an earlier trip to England.)
A.L. identified defendant as the intruder at trial.
She also identified him from both a photographic lineup and voice
exemplar. Additionally, she indicated that "the walk and the
gait" of the intruder were the same as defendant's based upon her
observations of defendant at his arraignment in this case. The
State also presented evidence that A.L.'s personal information
had been accessed several times from different central Illinois
- 32 -
police agency terminals prior to her assault.
d. Evidence Related to S.K.
S.K. testified that in October 2004, she arrived at her
Bloomington apartment from work around 2 a.m. As she parked her
car, she noticed a man walking "very slowly" away from her
apartment building with his hands in his pockets. The man passed
within three feet of her car and had a distinctive walk. She
added that "it seemed very out of the ordinary." The next day,
her roommate noticed that her bedroom window screens were miss-
ing.
On January 25, 2005, S.K. took the day off work to
prepare for her wedding. She returned to her apartment from her
parents' home around midnight. She went to bed at approximately
2 a.m. Around 2:45 a.m., she awoke to see someone coming into
her room. The intruder told her to "shut the fuck up" and
brandished a gun. He then asked her whether her roommate would
be coming home. She said that she would not. Following a short
struggle, the intruder put the gun to her head and ordered her to
remove her clothes.
S.K. explained that the intruder was a white male who
was wearing a light-colored University of North Carolina hooded
sweatshirt, dark blue jeans, a black "neoprene" coat, black
gloves similar to the type that "wide-receivers wear," and a
black belt, adding that he appeared to be using the belt as a
- 33 -
utility belt for his weapons. The intruder had the hood of the
sweatshirt pulled tight around his face with a black scarf
covering half of his nose and all of his mouth. She recalled
that the gun was silver and was not a revolver.
S.K. further testified that once the intruder removed
her clothing, he began to rub her inner thighs and "look over
[her] vaginal area." He bound her hands with plastic zip ties.
He then put a folding knife to her throat and asked her (1) for
her name and (2) who lived at 110 Doud Drive. She told him her
name and said that her parents lived at that address. He re-
sponded as follows: "I know that, you didn't think I knew that.
You make one more noise, you scream, I will put a bullet in your
fucking head and go to your parents and finish off every single
last one of them."
Shortly thereafter, the intruder pulled out a vibrator
and asked S.K. if she knew where he had gotten it. She responded
that she did not, and he told her that it was her roommate's. At
that point, he attempted to place one of her pillowcases over her
head. She "lost it," and he agreed to simply lay the pillowcase
over her eyes so that she could not see him. He violently
penetrated her vagina with the vibrator for several minutes. He
then left the room for a short period of time. When he came
back, he attempted to (1) penetrate her anally with the vibrator
and (2) put a "black cord" around her neck and "use it as a
- 34 -
noose."
Because the intruder was having difficulty anally
penetrating S.K. with the vibrator, he asked her whether she had
any lubricant. She said she did not. He persisted. She indi-
cated that she had some lotion in the bathroom. He then made her
get off the bed and accompany him to the bathroom. She tried to
stop him by telling him that she was pregnant. He did not
respond. However, once they were in the bathroom, he asked her
how long she had been pregnant. She said, "four days." He
demanded to see the pregnancy test. She retrieved the pregnancy
test from the bathroom trash can. After noticing her engagement
ring, he asked whether her fiancé was "the person with the red
car that visits [her] on the weekend." She said that he was. He
claimed that he knew everything about her, telling her that he
knew she worked at "The Loft," worked out at "Gold's Gym," and
that her little sister looked very similar to her. He also told
her that he (1) knew her schedule and (2) had been watching her
come and go from her apartment. He then asked her (1) if her
fiancé knew she was pregnant, (2) whether they were excited, (3)
how he would feel if he knew that she was pregnant when he raped
her, (4) if she would keep the baby in light of the attack, and
(5) if her parents would be upset. S.K. testified that he
appeared to be "elated like a little kid at Christmas, ***
overjoyed that all of these other people [would] be violated."
- 35 -
He then took the lotion and S.K. back to the bedroom.
Once they were back in the bedroom, the intruder put
the lotion on S.K.'s fingers and, at gunpoint and knifepoint,
forced her to place her fingers in her vagina; two fingers, then
three and four, and then her thumb. However, she was having
trouble inserting her thumb. The intruder became angry and undid
the velcro on his gloves in an effort to remove them. At that
moment, she could see his face because the pillowcase had "shift-
ed up." He began to insert his fingers into her vagina; first
one, then two, three and four, and then his thumb. After doing
so, he asked her (1) whether this was the bed she had gotten
pregnant in and (2) what was the craziest thing she had ever
done. She did not respond to either question.
The intruder then asked S.K. where she wanted to have
sex, pointing first to her mouth, then to her vagina. He un-
zipped his pants and pulled them down around his knees. He began
to rub his penis against her vagina, telling her that if she did
not respond, he was going to do both. He then attempted to
insert his penis into her vagina. She told him that she "would
rather do it the other way." He grabbed his gun, held it to her
head, cocked it by pulling back the slide, and told her that if
she bit him, he would "blow her brains out." He then put his
penis in her mouth, but could not become fully erect. (S.K. also
noted that his penis did not seem fully erect when he was earlier
- 36 -
making contact with her vagina.) He next asked whether she had
any condoms. She responded that she did not.
After removing his penis from her mouth, the intruder
"got the vibrator out again" and asked S.K. whether she had any
sex toys. She responded that she did not. He said, "Well, what
about beer bottles?" She said that she did not. He then forced
her on to her hands and knees and again violently penetrated her
vaginally from behind with the vibrator. After a while, he
stopped and began anally penetrating her with the vibrator. All
the while, he was repeating the phrases, "You have a pretty
pussy," and "I want to shave it."
The intruder then ordered S.K. back to the bathroom
where he put her right leg up on the counter, directly in front
of the mirror. He began rubbing the outside of her vagina,
attempting to insert his fingers into her vagina. Simulta-
neously, he was rubbing her abdomen with his other hand, (1)
asking her what her plans were for the pregnancy and (2) talking
about killing her family. After several minutes, he forced her
to switch legs and then repeated the process.
After assaulting her, the intruder forced S.K. to sit
in the bathtub with her feet toward the drain. He turned the
water on, spread her legs apart, put soap on her hand, and told
her to insert four of her fingers in and out of her vagina
rapidly until he told her she could stop. After a while, he
- 37 -
knelt down next to the bathtub and told her to hold out her
wrists. She complied and he cut the zip ties off with his knife.
He then shut the lights off, walked out of the bathroom, and
closed the door behind him. After what she thought was a couple
of hours, she got out of the bathtub and met a neighbor that she
had heard preparing for work in the apartment above hers. When
she got out, she noticed that her clothes, her telephones, and
the fitted sheet from her bed appeared to be missing. (She later
discovered that her cellular telephone was not missing, but had
been hidden in her apartment.)
S.K. later identified defendant in court as the in-
truder, and she also identified him from a photographic lineup
and voice exemplar. She also told the jury that the intruder had
the same distinctive walk as the man she saw walking away from
her apartment in October 2005.
e. Evidence Related to J.P.
J.P. testified that on April 8, 2005, she received a
number of "hang-up" calls at work, which gave her a "really bad
feeling." Because of that feeling, she asked a male coworker to
walk her to her car. Shortly after driving out of the parking
lot, she noticed a man who had pulled his vehicle behind hers
acting suspiciously. She described the man as a white male with
a straight nose, "rounder" face, a "buzz cut flattop," and "big
sunglasses." She identified defendant from the witness stand as
- 38 -
the person who appeared to be following her that day.
J.P. further testified that on April 10, 2005, she and
her then-boyfriend, Scott Galuska, returned to her Bloomington
home around 10 p.m. Sometime after J.P. fell asleep, Galuska
woke her up and told her to call the police because he saw
someone wearing black gloves standing in her yard. As J.P.
called the police, Galuska ran outside with a baseball bat.
Shortly thereafter, she heard Galuska and the man in the yard
yelling at each other. The man eventually ran away.
Galuska testified, reinforcing J.P.'s testimony regard-
ing the events of the night of April 10, 2005. Galuska identi-
fied defendant from a photographic lineup as the man he con-
fronted in J.P.'s yard.
J.P. also testified about a third incident. On June
10, 2006, J.P. arrived home around midnight. Shortly after
arriving home, she noticed that her dog was unusually upset,
barking and growling. She then heard what she described as an
"urgent" knock at the door. She responded, but no one was at the
door. Shortly thereafter, her doorbell rang, and again, no one
was there. She then heard a noise by the side of the house,
prompting her to call the police. Officer David Ziemer responded
to the call.
Ziemer testified that as he approached J.P.'s house he
saw someone standing with his back against an adjacent house.
- 39 -
Ziemer ordered the person to walk toward him but, instead, the
person turned to walk away with his hands "in his waist-band
area." Ziemer pulled his service firearm and ordered the man to
stop, but the person continued to walk away. However, once the
man got to the back of the house, he turned and walked directly
toward Ziemer. As the man approached, Ziemer recognized the man
as defendant, his former supervisor and member of his softball
team. Before he released defendant, Ziemer noticed that defen-
dant had "an item of clothing or something" under his shirt.
2. Defendant's Evidence
Defendant did not testify in his own defense. However,
defendant called several witnesses to show that (1) his brother-
in-law and other family members had access to the family computer
containing the pornography, (2) the victims had misidentified him
as their attacker because they had been tainted in one way or
another by the media coverage, (3) he was in bed with his wife or
working at the time of the assaults, and (4) other individuals
could have committed these crimes.
E. The Jury's Verdict
In June 2008, the jury convicted defendant of the
crimes against J.P., S.K., K.H., A.L., and A.M. as alleged by the
State. Specifically, the jury convicted defendant of (1) stalk-
ing (720 ILCS 5/12-7.3(a)(2) (West 2006)) and attempt (residen-
tial burglary) (720 ILCS 5/8-4, 19-3(a) (West 2006)), in case No.
- 40 -
06-CF-581 as to J.P.; and (2) (a) 1 count of intimidation (720
ILCS 5/12-6(a)(1) (West 2006)), (b) 2 counts of residential
burglary (720 ILCS 5/19-3(a) (West 2006)), (c) 2 counts of
aggravated unlawful restraint (720 ILCS 5/10-3.1(a) (West 2006)),
(d) 3 counts of home invasion (720 ILCS 5/12-11(a)(1), (a)(3)
(West 2006)), and (e) 25 counts of aggravated criminal sexual
assault (720 ILCS 5/12-14(a)(1), (a)(8) (West 2006)) in case No.
06-CF-679 as to S.K., K.H., A.L., and A.M.
F. Defendant's Sentence
Following defendant's August 2008 sentencing hearing,
the trial court merged several of defendant's convictions in case
No. 06-CF-679 pursuant to the one-act, one-crime rule. After
doing so, the court entered judgment against defendant on (1) 1
count of (a) stalking (720 ILCS 5/12-7.3(a)(2) (West 2006)) and
(b) attempt (residential burglary) (720 ILCS 5/8-4, 19-3(a) (West
2006)) in case No. 06-CF-581; and (2) (a) 1 count of intimidation
(720 ILCS 5/12-6(a)(1) (West 2006)), (b) 2 counts of home inva-
sion (720 ILCS 5/12-11(a)(1), (a)(3) (West 2006)), and (c) 13
counts of aggravated criminal sexual assault (720 ILCS 5/12-
14(a)(1), (a)(8) (West 2006)) in case No. 06-CF-679.
The trial court then imposed a series of consecutive
terms of imprisonment, which incorporated a number of enhance-
ments based on defendant's use of a (1) firearm and (2) dangerous
weapon other than a firearm. The court explained its incorpora-
- 41 -
tion of those enhancements as follows:
"[T]he aggravated[-]criminal[-]sexual[-]
assault charges in [case No.] 06[-]CF[-]679
contain certain sentence enhancements[,]
which mandate the imposition of additional
penalties if a weapon is involved in the
commission of the offense. The statute de-
fining aggravated criminal sexual assault
directs that a violation of [section 12-
14](a)(8) [(720 ILCS 5/12-14(a)(8) (West
2006)),] where the accused was armed with a
firearm, is a Class X felony for which fif-
teen years shall be added to the term of
imprisonment imposed by the [c]ourt; and a
violation of [section 12-14](a)(1) [(720 ILCS
5/12-14(a)(1) (West 2006))], where the ac-
cused was armed with a dangerous weapon other
than a firearm, *** is a Class X felony for
which ten years shall be added to the term of
imprisonment imposed by the [c]ourt. Like-
wise, home invasion, as charged in [c]ount 1
in this case, pursuant to *** [section] 5/12-
11(a)(3) [(720 ILCS 5/12-11(a)(3) (West
2006))], indicates that where the accused was
- 42 -
armed with a firearm during the commission of
the offense, the offense shall be a Class X
felony for which fifteen years shall be added
to the term of imprisonment imposed by the
[c]ourt.
The jury in this case found beyond a
reasonable doubt that *** defendant committed
the offense of aggravated criminal sexual
assault while armed with a firearm in [c]oun-
ts 3 and 4, 6 through 11, and 28 through 29.
The jury also found beyond a reasonable doubt
that *** defendant committed the offense of
aggravated criminal sexual assault while
armed with a dangerous weapon other than a
firearm, specifically, a knife in [c]ounts 32
and 33. And, finally, the jury found beyond
a reasonable doubt that *** defendant commit-
ted the offense of home invasion while armed
with a firearm on [c]ount 1 ***. The [c]ourt
finds that the sentencing enhancements for
the use of a firearm and a dangerous weapon,
therefore, apply to this case and *** defen-
dant's sentence on [c]ounts 1, 3 and 4, 6
through 11, and 28 through 29 will be in-
- 43 -
creased by a term of fifteen years on each
count. And *** defendant's sentence on
[c]ounts 25, 32, and 33 shall be increased by
a term of ten years on each count."
The court thereafter sentenced defendant to a series of consecu-
tive prison terms, totaling 440 years.
This appeal followed.
II. ANALYSIS
Defendant argues that (1) the trial court erred by (a)
allowing the State to introduce dozens of exhibits involving,
among other things, graphic pornographic images and text, includ-
ing depictions of rape, (b) denying his motion for change of
venue, (c) excluding the testimony of his expert witness, and (d)
failing to question jurors regarding the presumption that he was
innocent until proven guilty; (2) the State failed to prove him
guilty beyond a reasonable doubt that he sexually assaulted A.M.;
and (3) his sentencing enhancements for the aggravated criminal
sexual assaults against K.H., A.L., and S.K. violate the
proportionate-penalties clause of the Illinois Constitution (Ill.
Const. 1970, art. I, §11). We address defendant's contentions in
turn.
A. Defendant's Claim That the Trial Court Erred by
Allowing the State To Introduce Irrelevant
and Prejudicial Pornographic Material
Defendant argues that the trial court erred by allowing
- 44 -
the State to introduce dozens of exhibits involving, among other
things, graphic pornographic images and text, including depic-
tions of rape (hereinafter the pornography) because this evidence
was irrelevant. Defendant further contends that if this court
were to conclude that this evidence was relevant, the trial court
still erred by admitting it because it was "more prejudicial than
probative and admitted without limitation."
1. The Pornography Presented in This Case
At trial, the State presented the following exhibits
recovered from defendant's home computers: (1) 23 poster boards,
containing images, Internet search results, and gallery names;
(2) a slide show depicting Internet searches; and (3) two 30-
second movie trailers. We discuss each group of exhibits indi-
vidually to place them in context.
Initially, we note that the State's computer forensic
experts recovered the pornography at issue in this case from
defendant's home computers. Those experts recovered, in relevant
part, (1) approximately 175 pornographic images, (2) numerous
Internet search terms and the results of those searches, and (3)
2 short movie trailers. The content of the images and movie
trailers are self-evident. However, the description of the
Internet searches and other written content is more nuanced.
That is, a number of the State's exhibits showed Internet search-
es that were guided by search terms entered by the computer's
- 45 -
user into what is known as a "search engine," such as those run
by "Google" and "Yahoo!" The result of those searches revealed a
list, or menu, of corresponding Web sites containing those terms
from which the user could select. Some of the exhibits shown to
the jury in this case depicted search terms as well as the
results of those searches. The State also presented a number of
exhibits depicting the content of Web sites that it claimed
defendant had viewed. Those Web sites included what the parties
refer to as "gallery names"--that is, they included links to
other Web sites with short descriptions of those sites. As we
will explain, a few of those images, search results, and gallery
names were not relevant to the State's case and should not have
been admitted.
a. The Poster Boards
The State showed the jury 23 separate poster boards,
which depicted images, gallery names, and search results that it
claimed defendant had viewed. Those poster boards included the
following material: (1) 23 images depicting rape, penetration of
women with foreign objects, bondage, and forced fellatio (exhibit
C1); (2) 22 images depicting rape, penetration of women with
foreign objects, domination, bondage, fellatio, incest, and a
gynecological exam (exhibit C2); (3) 22 images depicting rape,
bondage, fellatio, caning, and penetration of women with foreign
objects, including vaginal and anal shock (exhibit C3); (4) 5
- 46 -
images depicting rape and women penetrating themselves (exhibit
C4); (5) 9 images depicting rape, bondage, fellatio, and a woman
having her throat slashed with a knife (exhibit C5); (6) 10
written Internet search term results for the search term "bdsm
rape," which included a result for mother-daughter incest and gay
rape (exhibit C6); (7) 10 written Internet search results for the
search term "real rape," which included results for father-son-
teen incest and gay rape (exhibit C7); (8) a written short story
describing a rape, with links at the bottom of that Web site,
which described incest (exhibit C8); (9) a Web site that included
rape video links and images depicting rape and bondage, including
3 images and stories describing incest (exhibit C11); (10)
approximately 40 images depicting rape, bondage, women penetrat-
ing themselves, and penetration of women with foreign objects,
including vaginal shock from the Web site www.damseldiary.com
(exhibit C12); (11) 11 blacked-out images from the Web site
www.maxirape.com (exhibit C13); (12) several images depicting
forced fellatio and rape at gunpoint from the Web site
www.maxirape.com (exhibit C14); (13) several images depicting
rape at knifepoint and gunpoint from the Web site www.maxirape.c-
om (exhibit C15); (14) images depicting rape at gunpoint from the
Web site www.maxirape.com (exhibit C16); (15) several images
depicting rape at knifepoint and gunpoint from the Web site
www.maxirape.com (exhibit C17); (16) a written list of 118
- 47 -
gallery names, such as "Girl tied up at the wall," "Lesbian slave
in bondage," and "Brutal electric pussy treatment," from the Web
site www.Bdsmsexaffraid.com (exhibit C18); (17) 26 images and 120
gallery names, such as "Girl fucked by brutal device" and "Les-
bian torture," from the Web site www.Bdsmsexaffraid.com (exhibit
C19); (18) 6 images depicting rape at gunpoint from the Web site
www.forcedfuckers.com (exhibit C20); (19) 28 images depicting
domination and forced fellatio, as well as Internet links to 4
videos with short stories describing (a) brides being raped on
their wedding night, (b) men overpowering women, (c) men in
uniform raping women, and (d) lesbian rape, from the Web site
www.forcedfuckers.com (exhibit C21); (20) numerous written
gallery names (in very small font) from the Web site
www.sodomcity.com, describing links to fetishes such as "Secre-
taries Drinking Cum and Piss" (exhibit C22); (21) written gallery
names (in very small font), such as "High Powered Machines Taking
Pussy A Part," and images, including a woman being caned, from
the Web site www.sodomcity.com (exhibit C23); (22) numerous
blacked-out images from a "Free Rape Page" taken from the Web
site www.screamncream.com (exhibit C24); and (23) 51 images
depicting rape, bondage, and forced fellatio from the Web site
www.screamncream.com (exhibit C25).
b. The Slide Show
The State also presented to the jury a slide show,
- 48 -
which included the following data recovered from defendant's home
computers: (1) an Internet search termed "Real Rape" with results
linking to 5 different Web sites, including a father-son incest
site (exhibit 9a); (2) an "adults only" warning page (exhibit
9b); (3) a "Rape Gallery" result page (exhibit 9c); (4) results
for sex machine and brutal rape videos (exhibit 9d); (5) results
and links for father-son incest, straight and homosexual rape,
and men with animals (exhibit 9e); (6) results and links to rape
and sexual violence Web sites (exhibit 9f); (7) an Internet
search termed "bondage" with results linking to bondage and
various fetish Web sites (exhibit 9g); (8) a credit-card-decline
page (exhibit 9h); (9) an Internet search based on the search
term "BONDAGE" with four results linking to bondage Web sites
(exhibit 9i); (10) a page showing only a search termed "porn
illegal" (exhibit 9j); (11) text describing fantasy rape, bond-
age, sexual slavery, and forced submission (exhibit 9k); and (12)
a three-line story about the rape and bondage of fitness trainers
(exhibit 9l).
c. The Movie Trailers
The State also showed the jury two short Internet video
trailers, which were approximately 30 seconds long. The first
depicted a woman strapped to a board, who was wearing a leather
mask, being penetrated by another person's fist. (That person
was otherwise out of view.) The second depicted two women in
- 49 -
their underwear who were bound at their hands and feet being
thrown onto a bed.
2. The Relevancy of the Pornography
Evidence is relevant when it (1) renders a matter of
consequence more or less probable or (2) tends to prove a fact in
controversy. People v. Lynn, 388 Ill. App. 3d 272, 280, 904
N.E.2d 987, 994 (2009). The issue of whether evidence is rele-
vant and admissible is reserved to the sound discretion of the
trial court. Lynn, 388 Ill. App. 3d at 280, 904 N.E.2d at 994.
The exercise of the trial court's discretion in that regard will
not be reversed absent an abuse of that discretion. Lynn, 388
Ill. App. 3d at 280, 904 N.E.2d at 994. A trial court abuses its
discretion only when its decision is arbitrary, unreasonable, or
fanciful or where no reasonable person would take the trial
court's view. People v. Bean, 389 Ill. App. 3d 579, 590, 906
N.E.2d 738, 747 (2009) (adding that "[a]side from no review at
all, the abuse-of-discretion standard is the most deferential
standard of review").
As previously explained, the pornography at issue
depicted primarily violence against women, bondage, sadism, and
rape. We earlier described this material at length, and we will
not repeat that description now. Instead, it suffices to note
that, as the court observed, a significant portion of this
material involved the use (or forced use) of fingers or foreign
- 50 -
objects to penetrate women both vaginally and anally, as well as
many instances of female masturbation and other fetish-based
dramatizations. The court explained that after carefully consid-
ering all of the material the State offered, as well as the
arguments of counsel, it found that the evidence was relevant
because of the particular circumstances of the crimes involving
the victims in this case. In particular, the court ruled that
the pornographic "sites and photographs and images that have to
do with forced sex, rape, bondage, the use of foreign objects,
and observations of female masturbation are relevant." We also
note that the court ruled that some of the pornography would not
be admitted--namely, that which dealt with the "forced witness"
concept, as well as videos that ended with a shower scene. The
court found that it did not see those matters as relevant to the
State's charges.
We conclude that the trial court correctly determined
that the vast majority of the pornography was relevant in this
case, given that it (1) involved forced sex, rape, bondage, the
use of foreign objects on women, and female masturbation and (2)
was recovered from defendant's home computer. In other words,
the court found that most of the pornography tended to prove a
fact in controversy--namely, who committed the crimes charged--
because the pornography, which was found in defendant's computer,
involved acts and scenarios that were emulated by the perpetrator
- 51 -
in these cases.
In concluding that the trial court correctly determined
that most of the pornography was relevant, we note that the
perpetrator of these sexual assaults not only emulated behavior
shown in this pornography, but in fact told some of the victims
that he liked it when they penetrated themselves digitally or
with foreign objects, like dildos or vibrators, and that their
doing so "got him off." He also told another victim that he
liked female masturbation where "the female would insert some-
thing into her vagina to manipulate herself." The seemingly
peculiar emphasis on this form of sexual activity in the porno-
graphic materials at issue--that is, vaginal and anal penetration
of women digitally or by foreign objects, as well as their
masturbation--suggests a link to the perpetrator of these of-
fenses, who also seemed to have a peculiar interest in this
sexual activity. Such a link could properly be considered by the
court in its evaluation that the evidence was relevant.
Notwithstanding our conclusion that the vast majority
of the pornographic evidence was relevant, our review of the
exhibits in this case reveals that some of it, such as some of
the gallery names and search results described above (see, for
example, "Secretaries Drinking Cum and Piss" (exhibit C22)--which
we reiterate were written in exceptionally small font) and the
images depicting incest, caning, and a gynecological exam were
- 52 -
irrelevant to the State's theory of the case and should not have
been admitted. Thus, we conclude that the trial court erred by
admitting these irrelevant portions of the State's exhibits.
However, given the overwhelming proof of defendant's guilt in
this case, we view the court's error in this regard to be harm-
less.
Although the erroneous admission of other-crimes
evidence carries a high risk of prejudice, the evidence must be
so prejudicial that the defendant is denied a fair trial. People
v. Lopez, 371 Ill. App. 3d 920, 937, 864 N.E.2d 726, 741 (2007);
see People v. Cortes, 181 Ill. 2d 249, 285, 692 N.E.2d 1129, 1145
(1998) (noting that such an error "must have been a material
factor in [the defendant's] conviction such that without the
evidence the verdict likely would have been different"). In
short, "[i]f the error is unlikely to have influenced the jury,
admission will not warrant reversal." Cortes, 181 Ill. 2d at
285, 692 N.E.2d at 1145. An evidentiary issue is harmless when
no reasonable probability exists that the jury would have acquit-
ted the defendant absent the error. See In re E.H., 224 Ill. 2d
172, 180, 863 N.E.2d 231, 235 (2006) (explaining that the
harmless-error-review standard for evidentiary issues is the
"reasonable probability" standard, whereas the harmless-error-
review standard for constitutional issues is the "beyond a
reasonable doubt" standard).
- 53 -
Having carefully scrutinized the exhibits in this case,
we conclude that the irrelevant pornographic evidence admitted
was not a material factor in defendant's conviction and that no
reasonable probability exists that the jury would have acquitted
defendant absent the error. Indeed, we conclude that the court's
evidentiary error would have been harmless even under the more
restrictive "beyond a reasonable doubt" standard. Here, (1) the
number of images presented depicting, among other things, incest,
vaginal shock, and caning were not extensive when compared to the
much larger number of relevant images presented; (2) the prejudi-
cial impact of the irrelevant gallery names was greatly dimin-
ished, given that (a) the font on the vast majority of those
names was very small--indeed, some were barely legible--and (b)
the great majority of those gallery names were listed as part of
the full Web site presented to show that defendant was viewing
material related to rape; and (3) the prejudicial impact of the
irrelevant search results was substantially diminished by the
fact that (a) the primary purpose of showing those exhibits was
to prove that defendant was using certain search terms--which we
note were relevant--such as "bondage" and "bdsm rape" and (b) the
exhibits did not indicate that defendant selected from the "menu"
of search results any of those results that we have concluded
were irrelevant. Given the lack of prejudice in the context of
this case--that is, the number of other relevant pornographic
- 54 -
images, gallery names, and search results--and the overwhelming
evidence linking defendant to the crimes for which he was con-
victed, we conclude that the trial court's admission of certain
irrelevant pornographic evidence, while erroneous, was harmless.
In addition to defendant's challenge to the admission
of the pornographic material on general relevancy grounds, he
further asserts that the State's theory that this evidence was
relevant is flawed because the State failed to present any
evidence showing that the pornography was being viewed contempo-
raneously with the time the sexual assaults were committed. For
instance, defendant asserts that the record shows that the
pornographic Web sites were visited on or after August 16, 2005,
over six months after the last rape. However, as did the trial
court, we reject the idea that the State was somehow required to
demonstrate that the pornography was viewed contemporaneously
with the sexual assaults in this case. Instead, such claimed
discrepancies in the dates of the viewing of the pornographic
material on defendant's home computer and the dates of the
offenses in this case constitute merely one of many factors for
the trial court to consider in the totality of the circumstances
as it determined whether the pornography was relevant.
3. Defendant's Claim That the Pornographic Evidence,
Even if Relevant, Was More Prejudicial Than Probative
Defendant next contends that because the pornography at
issue, even if relevant, was more prejudicial than probative, the
- 55 -
trial court erred by permitting the State to introduce it into
evidence. We disagree.
We first note that defendant misstates the applicable
rule of law. The question is not whether relevant evidence is
more prejudicial than probative; instead, relevant evidence is
inadmissible only if the prejudicial effect of admitting that
evidence substantially outweighs any probative value. People v.
Hanson, No. 106566, slip op. at 20 (June 24, 2010), ___ Ill. 2d
___, ___, ___ N.E.2d ___, ___ ("A court may exercise its discre-
tion and exclude evidence, even if it is relevant, if the danger
of unfair prejudice substantially outweighs any probative value"-
); People v. Walker, 211 Ill. 2d 317, 337, 812 N.E.2d 339, 350
(2004); People v. Bryant, 391 Ill. App. 3d 228, 244, 907 N.E.2d
862, 876 (2009). "Prejudicial effect" in this context of admit-
ting that evidence means that the evidence in question will
somehow cast a negative light upon a defendant for reasons that
have nothing to do with the case on trial. Lynn, 388 Ill. App.
3d at 278, 904 N.E.2d at 992. In other words, the jury would be
deciding the case on an improper basis, such as sympathy, hatred,
contempt, or horror. People v. Lewis, 165 Ill. 2d 305, 329, 651
N.E.2d 72, 83 (1995),
Here, the State presented a significant number of
pornographic images, sexually explicit Web sites, and gallery
names. Those images, Web site, and gallery names depicted or
- 56 -
described (1) sexual brutality; (2) rape, including the rape of
women on their wedding night; (3) bondage; (4) forced fellatio at
gunpoint and knifepoint; (5) the use of vibrators and dildos; (6)
oral sex; (7) anal sex; and (8) various other sexually explicit
fetishes. The victims in this case testified that they were
subjected to one or more of the following similar acts: (1)
having (a) a rope or cord tied around their neck and (b) dildos
and vibrators used on them and (2) being (a) bound with zip ties,
(b) forced to perform oral sex at gunpoint and knifepoint, (c)
raped a short time before marriage, (d) subjected to oral sex by
their attacker, (e) ordered to "pleasure" themselves with as many
fingers as they could fit into their vaginas, and (f) forced to
choose between being violated anally or vaginally.
In Hanson, slip op. at 20, ___ Ill. 2d at ___, ___
N.E.2d at ___, the supreme court explained that the question of
whether the danger of unfair prejudice substantially outweighed
the probative value of the evidence in question was a matter
within the trial court's discretion, and unless that court's
decision was arbitrary, fanciful, or unreasonable, the court
would not abuse its discretion if it deemed the evidence admissi-
ble. Having reviewed the record in this case, we conclude, as
did the trial court, that the probative value of the pornographic
images and sexually explicit Web sites and gallery names was very
high. The State was entitled to use that evidence to show that
- 57 -
defendant was the intruder described in the victims' testimony.
The pornographic material presented established a backdrop of
peculiar sexual interests by defendant. That is, the material
painted a picture for the jury of defendant as a person who "got
off on" the peculiar sexual activity emphasized in the pornogra-
phy, just as the perpetrator of these crimes told some victims
that he similarly "got off on" those same activities in which he
forced the victims to engage. Consistent with the supreme
court's statement of the standard of review in Hanson, we con-
clude that the trial court's decision was far from being arbi-
trary, fanciful, or unreasonable and did not constitute an abuse
of its discretion.
B. Defendant's Claim That The Trial Court Erred by Not
Giving the Jury a Limiting Instruction Regarding Its
Consideration of the Pornography
Defendant next argues that even if this court were to
conclude that the pornographic material was properly admitted,
the trial court committed reversible error by not giving the jury
a limiting instruction regarding that evidence. Defendant
concedes that he did not request such an instruction at trial,
but he asserts alternatively that the trial court's failure to
give a limiting instruction either (1) constituted plain error or
(2) resulted from the ineffective assistance of his trial coun-
sel. We reject defendant's first contention and decline to
address his second.
- 58 -
In addressing defendant's contentions, we first note
that the possession or viewing of the pornography at issue in
this case does not technically constitute criminal conduct. That
is, assuming defendant was the person who possessed the pornogra-
phy on his home computer and viewed it, his doing so did not
constitute a criminal act. Nonetheless, as this court explained
in People v. Spyres, 359 Ill. App. 3d 1108, 1112, 835 N.E.2d 974,
977 (2005), "[t]he term 'other-crimes evidence' encompasses
misconduct or criminal acts that occurred either before or after
the allegedly criminal conduct for which the defendant is stand-
ing trial." (Emphasis added.) On this same point, see the
supreme court's analysis in People v. Illgen, 145 Ill. 2d 353,
365, 583 N.E.2d 515, 519-20 (1991); see also People v. Johnson,
368 Ill. App. 3d 1146, 1154, 859 N.E.2d 290, 298 (2006). Persons
serving as jurors in defendant's case might view his possession
and viewing of the pornography in this case as "misconduct."
Accordingly, we will address defendant's contention regarding the
need for a limiting instruction in this context.
1. Defendant's Plain-Error Contention
A trial court's failure sua sponte to give an instruc-
tion that is normally required triggers a plain-error analysis to
bypass normal forfeiture principles only "when either (1) the
evidence is close, regardless of the seriousness of the error, or
(2) the error is serious, regardless of the closeness of the
- 59 -
evidence." People v. Herron, 215 Ill. 2d 167, 186-87, 830 N.E.2d
467, 479 (2005). The record in this case reveals that neither of
these circumstances is present here.
First, we reiterate that when the totality of the
evidence against defendant is considered, the State's evidence of
his guilt to be overwhelming. Because the evidence is not close,
defendant has failed to meet the first prong of the plain-error
test.
Second, the alleged error is not as serious as defen-
dant contends. That is, although we earlier noted that the
pornography evidence at issue in this case does technically
constitute "other-crimes evidence," as this court has earlier
broadly described that term, it is nonetheless a form of that
evidence which is both less often seen and less prejudicial
generally than the other form of "other-crimes evidence," which
is in fact evidence of other crimes. The reason for this dis-
tinction is simple: the primary danger associated with the
admission of other-crimes evidence is that the jury will view it
as establishing a defendant's propensity to commit crime. See
People v. Heard, 187 Ill. 2d 36, 58, 718 N.E.2d 58, 71 (1999).
The form of other-crimes evidence at issue in this case, which
may cast the defendant in a bad light, will almost never be as
potentially damaging to a defendant on trial as would be his
actual criminal conduct because the primary fear associated with
- 60 -
"other-crimes evidence"--namely, that it will be viewed as
propensity evidence--is not present.
We agree with defendant that on this record, the trial
court should at least have raised sua sponte the question of
whether the jury should be given a limiting instruction regarding
its consideration of the pornography evidence. For instance, the
court could have informed defendant that if he wished such an
instruction be given, the court was prepared to give one.
Nonetheless, because the evidence at issue did not constitute
evidence of actual criminal conduct by defendant, which would
raise the concerns about propensity evidence we earlier dis-
cussed, we reject defendant's contention that the absence of an
instruction here constituted plain error.
In so concluding, we also note that the supreme court
has described this second prong of plain-error analysis as
involving a clear and obvious error so serious that it affected
the fairness of a defendant's trial and challenged the integrity
of the judicial process, regardless of the closeness of the
evidence. People v. Piatkowski, 225 Ill. 2d 551, 565, 870 N.E.2d
403, 410-11 (2007). Further, "[t]he burden of persuasion remains
with the defendant under both prongs of the plain-error test."
People v. Lewis, 234 Ill. 2d 32, 43, 912 N.E.2d 1220, 1227
(2009). Judged in accordance with these standards, defendant's
plain-error argument falls far short.
- 61 -
2. Defendant's Ineffective-Assistance-of-Counsel Claim
Defendant alternatively asserts that his trial coun-
sel's failure to request a limiting instruction constitutes
ineffective assistance of counsel. Although we are skeptical of
this claim, we nonetheless decline to reach the merits of defen-
dant's assertion because this claim is better pursued under the
Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 through 122-8
(West 2008)).
Claims of ineffective assistance of counsel are judged
pursuant to the standards established by the United States
Supreme Court in Strickland v. Washington, 466 U.S. 668, 80 L.
Ed. 2d 674, 104 S. Ct. 2052 (1984). The Strickland standard
requires a defendant to demonstrate that (1) defense counsel's
performance was so deficient such that "counsel was not function-
ing as the 'counsel' guaranteed the defendant by the [s]ixth
[a]mendment" and (2) but for defense counsel's deficient perfor-
mance, the result of the proceeding would have been different.
Strickland, 466 U.S. at 687, 694, 80 L. Ed. 2d at 693, 698, 104
S. Ct. at 2064, 2068. "Both prongs of the Strickland test must
be satisfied before a defendant can prevail on a claim of inef-
fective assistance of counsel." People v. Calvert, 326 Ill. App.
3d 414, 421, 760 N.E.2d 1024, 1030 (2001). To prove that coun-
sel's performance was deficient, a defendant must overcome the
strong presumption that the challenged action or inaction was the
- 62 -
product of sound trial strategy. Strickland, 466 U.S. at 689, 80
L. Ed. 2d at 694-95, 104 S. Ct. at 2065.
In People v. Kunze, 193 Ill. App. 3d 708, 726, 550
N.E.2d 284, 296 (1990), this court held that claims of ineffec-
tive assistance of counsel are often better made in proceedings
on a petition for postconviction relief, where a complete record
can be made. In Kunze, the defendant's claims of ineffective
assistance turned on whether defendant would have testified in
his own defense had he known that the State could use his prior
convictions to impeach him. Kunze, 193 Ill. App. 3d at 725, 550
N.E.2d at 296. This court declined to reach the merits of the
defendant's claims of ineffectiveness because nothing in the
record permitted such a determination to be made. Kunze, 193
Ill. App. 3d at 725-26, 550 N.E.2d at 296.
Here, as in Kunze, the record before us contains
nothing to review regarding defendant's counsel's trial strategy
related to an instruction limiting the other-crimes evidence.
Without a record, we are unwilling to deem counsel's failure to
submit a limiting instruction ineffective for purposes of Strick-
land, given that it appears that an argument can be made that
defense counsel's inaction fell within the bounds of reasonable
trial strategy--namely, that counsel did not want to further
"dirty up" his client in the eyes of the jury by drawing addi-
tional attention to such evidence. This is especially true
- 63 -
considering that in most other respects, counsel acted diligently
and professionally in this case. Because the answer to whether
counsel's decision was one of trial strategy is currently de hors
the record, we decline to consider it and instead will await
defendant's pursuit of such a claim under the Act (725 ILCS
5/122-1 through 122-8 (West 2008)).
C. Defendant's Claim That the Trial Court Erred by Not
Giving a Limiting Instruction to Evidence That He Was a
Peeping Tom and a Stalker
Defendant further contends that the trial court erred
by failing to give a limiting instruction to the jury regarding
the evidence the State presented that (as defendant describes it)
he was "a pervert who spent his nights roaming the streets of
Bloomington peering in windows and stalking women." We first
note that, as we discussed earlier, defendant failed to ask for
such a limiting instruction at trial. Thus, defendant is again
asking us to view this contention as either (1) plain error or
(2) ineffective assistance of counsel. For the same reasons
discussed in the previous section of this opinion, we reject
defendant's plain-error contention and decline to address his
ineffective-assistance-of-counsel claim.
Nonetheless, we note that defendant's characterization
of the State's evidence is hyperbole. The testimony in question
demonstrated instead that defendant engaged in odd or suspicious
behavior, but it was not criminal conduct and was not even
- 64 -
behavior that would necessarily cast defendant in a bad light.
For these reasons, defendant's argument here is not even as
strong as the one we previously rejected.
D. Defendant's Claim That the Trial Court Erred
by Denying His Motion for Change of Venue
Defendant next contends that the trial court erred by
denying his motion for change of venue. Specifically, defendant
asserts that because a number of the potential jurors--including
two jurors who were eventually empaneled--had formed opinions
about the case due to the extensive media coverage concerning
this case, he did not receive a fair trial. We disagree.
In People v. Little, 335 Ill. App. 3d 1046, 1052, 782
N.E.2d 957, 963 (2003), this court discussed when a defendant is
entitled to a change of venue, as follows:
"A defendant is entitled to a change of venue
as a result of pretrial publicity if a rea-
sonable apprehension exists that [he] cannot
receive a fair and impartial trial. People
v. Fort, 248 Ill. App. 3d 301, 309, 618 N.E.-
2d 445, 452 (1993). 'Exposure to publicity
about a case is not enough to demonstrate
prejudice because jurors need not be totally
ignorant of the facts and issues involved in
a case.' People v. Kirchner, 194 Ill. 2d
502, 529, 743 N.E.2d 94, 108 (2000). In-
- 65 -
stead, what is essential is that the jurors
ultimately chosen must be able to lay aside
impressions or opinions and render a verdict
based upon the evidence at trial. People v.
Sutherland, 155 Ill. 2d 1, 16, 610 N.E.2d 1,
7 (1992). Thus, the relevant inquiry on
appeal is not how much pretrial publicity
occurred, but whether the defendant received
a fair and impartial trial. People v. Lucas,
132 Ill. 2d 399, 422, 548 N.E.2d 1003, 1011
(1989)."
"In evaluating a defendant's claim that his jury was prejudiced
due to pretrial publicity, a reviewing court must review the
entire record, including voir dire testimony, to determine
independently whether the defendant was denied a fair trial."
Kirchner, 194 Ill. 2d at 529, 743 N.E.2d at 108. Thus, the
court's focus is not on the mood of the general public but,
instead, it must be on the mood of the actual jury empaneled.
In this case, although a number of the jurors eventu-
ally empaneled had heard about the case, only two jurors, Larson
and Willenborg, claimed to have formed an opinion about the case.
During voir dire, the trial court inquired about these jurors'
ability to set aside their respective opinions and render a
verdict based upon the evidence at trial. The court first
- 66 -
addressed Larson, as follows:
"THE COURT: Okay, [a]ll right. Based on
the information that you have heard in the
past through the news media and so forth,
have you formed any opinions about this case
or about *** [d]efendant's guilt as you sit
here today?
MR. LARSON: Well, it's, the way they
gloss up a case, it's hard to say that he's
innocent.
THE COURT: Okay. So you have heard
things and *** you may have formed some opin-
ions based upon what you have previously
heard?
MR. LARSON: Correct.
THE COURT: Okay. All right. If you
were to be selected as a juror in this case,
the [c]ourt would instruct you that you are
to decide the case only on the basis of the
evidence that you hear in the courtroom and
the instructions of law that are presented to
the jury at the end of the case; that is, you
are to disregard anything that you may have
heard or read about the case outside of the
- 67 -
evidence presented here in the courtroom. If
you were selected as a juror in this case, do
you believe that you could disregard what you
may have heard or read about the case and
decide the case only on the evidence pre-
sented in court and the law that you will be
given by the [c]ourt? Do you believe that
you could do that?
MR. LARSON: It would be difficult but I
think I can.
THE COURT: All right. Now, when you say
it would be difficult but you think you can
do that, [is the court] to understand that
what you are saying is you have some opin-
ions, but you believe you could set those
aside, listen to *** all the evidence, and
then decide the case based on the evidence
that you hear? You believe you could do
that?
MR. LARSON: That's correct."
The court then turned its attention to Willenborg, as follows:
"THE COURT: Okay. As you sit hear to-
day, do you have an opinion as to whether ***
[d]efendant is guilty in this case?
- 68 -
MS. WILLENBORG: Yes.
THE COURT: If you were selected to serve
as a juror in this case, do you believe that
you could disregard what you may have heard
or read or talked about with others and set
aside that opinion and decide this case only
on the evidence which will be presented in
open court and the law that the [c]ourt will
give you? Do you think you could do that?
MS. WILLENBORG: Yes.
THE COURT: In other words, do you think
you could be fair and impartial to both sides
without regard to the opinion you may have
formed:
MS. WILLENBORG: Yes."
As this exchange demonstrates, each of the panelists in
this case convinced the trial court that he or she could be fair
and impartial--that is, each agreed that he or she could deter-
mine whether defendant was guilty based only upon the evidence
presented at trial. Accordingly, we conclude that the court did
not err by denying defendant's motion for a change of venue. In
so concluding, we note that the court's analysis of this issue
was entirely correct, particularly its observation that the
actual voir dire examination of potential jurors is the best
- 69 -
method for determining whether pretrial publicity has resulted in
prejudice against a defendant so as to warrant granting his
motion for a change of venue.
In support of our conclusion, we find support in the
recent decision of the United States Supreme Court in Skilling v.
United States, 561 U.S. ___, 177 L. Ed. 2d 619, 130 S. Ct. 2896(2010), wherein the Court rejected the defendant's argument that
he was deprived of his constitutional right to a fair trial when
the trial court denied his motion to move his trial (which
involved charges of fraud arising from the Enron collapse) to a
different venue. In rejecting the defendant's claim, the Court
wrote that "our decisions *** 'cannot be made to stand for the
proposition that juror exposure to ... news accounts of the crime
... alone presumptively deprives the defendant of due process.'"
Skilling, 561 U.S. at ___, 177 L. Ed. 2d at 643, 130 S. Ct. at
2914, quoting Murphy v. Florida, 421 U.S. 794, 799, 44 L. Ed. 2d
589, 594, 95 S. Ct. 2031, 2036 (1975). The Court further reiter-
ated that "[j]urors are not required to be 'totally ignorant of
the facts and issues involved'; 'scarcely any of those best
qualified to serve as jurors will not have formed some impression
or opinion as to the merits of the case.'" Skilling, 561 U.S. at
___, 177 L. Ed. 2d at 643, 130 S. Ct. at 2915, quoting Irwin v.
Dowd, 366 U.S. 717, 722, 6 L. Ed. 2d 751, 756, 81 S. Ct. 1639,
1642 (1961). The Court also explained the preeminent role of the
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trial court regarding this question, writing as follows:
"Jury selection, we have repeatedly empha-
sized, is 'particularly within the province
of the trial judge.' [Citations.]
When pretrial publicity is at issue,
'primary reliance on the judgment of the
trial court makes [especially] good sense'
because the judge 'sits in the locale where
the publicity is said to have had its effect'
and may base her evaluation on her 'own per-
ception of the depth and extent of news sto-
ries that might influence a juror.' [Cita-
tion.] Appellate courts making after-the-
fact assessments of the media's impact on
jurors should be mindful that their judgments
lack the on-the-spot comprehension of the
situation possessed by trial judges.
Reviewing courts are properly resistant
to second-guessing the trial judge's estima-
tion of a juror's impartiality, for that
judge's appraisal is ordinarily influenced by
a host of factors impossible to capture fully
in the record--among them, the prospective
juror's inflection, sincerity, demeanor,
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candor, body language, and apprehension of
duty. [Citation.] In contrast to the cold
transcript received by the appellate court,
the in-the-moment voir dire affords the trial
court a more intimate and immediate basis for
assessing a venire member's fitness for jury
service." Skilling, 561 U.S. at ___, 177 L.
Ed. 2d at 646, 130 S. Ct. at 2917-18.
E. Defendant's Claim That the Trial Court Erred
by Excluding Fulero's Expert Testimony
Defendant next contends that the trial court erred by
granting the State's motion in limine to exclude Fulero's expert
testimony. Specifically, defendant asserts that the court
improperly reasoned that defendant had not provided sufficient
proof (1) of what Fulero's testimony would be and (2) that
Fulero's testimony would not invade the province of the jury. We
disagree.
"'A trial judge has discretion in granting a motion in
limine and a reviewing court will not reverse a trial court's
order allowing or excluding evidence unless that discretion was
clearly abused.'" Gallina v. Watson, 354 Ill. App. 3d 515, 518,
821 N.E.2d 326, 329 (2004), quoting Swick v. Liautaud, 169 Ill.
2d 504, 521, 662 N.E.2d 1238, 1246 (1996). Failure on the part
of a defendant to make a proper offer of proof forfeits review of
his challenge to the trial court's granting of a motion in
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limine. People v. Roberson, 401 Ill. App. 3d 758, 768, 927
N.E.2d 1277, 1287 (2010).
When a defendant claims that he has not been given the
opportunity to prove his case because the trial court improperly
barred evidence, he "must provide [the] reviewing court with an
adequate offer of proof as to what the excluded evidence would
have been." In re Estate of Romanowski, 329 Ill. App. 3d 769,
773, 771 N.E.2d 966, 970 (2002). Such an offer of proof serves
dual purposes: (1) it discloses to the court and opposing counsel
the nature of the offered evidence, thus enabling the court to
take appropriate action, and (2) it provides the reviewing court
with an adequate record to determine whether the trial court's
action was erroneous. People v. Thompkins, 181 Ill. 2d 1, 10,
690 N.E.2d 984, 989 (1998).
The traditional way of making an offer of proof is the
"formal" offer, wherein counsel offers the proposed evidence or
testimony by placing a witness on the stand, outside the jury's
presence, and asking him questions to elicit with particularity
what the witness would testify to if permitted to do so. People
v. Wallace, 331 Ill. App. 3d 822, 831, 772 N.E.2d 785, 794
(2002).
In lieu of a formal offer of proof, counsel may request
permission from the trial court to make representations regarding
the proffered testimony. As a matter of the court's discretion,
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the court may allow such an "informal" offer of proof.
A trial court may deem an informal offer of proof
sufficient if counsel informs the court, with particularity, (1)
what the expert testimony will be, (2) by whom it will be pre-
sented, and (3) its purpose. Kim v. Mercedes-Benz, U.S.A., Inc.,
353 Ill. App. 3d 444, 451, 818 N.E.2d 713, 719 (2004). However,
an informal offer of proof is inadequate if counsel (1) "merely
summarizes the witness' testimony in a conclusory manner" (Snels-
on v. Kamm, 204 Ill. 2d 1, 23, 787 N.E.2d 796, 808 (2003)) or (2)
offers unsupported speculation as to what the witness would say
(People v. Andrews, 146 Ill. 2d 413, 421, 588 N.E.2d 1126, 1132
(1992)).
In any event, it remains entirely within the trial
court's discretion whether to accept an informal offer of proof
in lieu of the formal offer consisting of testimony from the
witness stand. Although it would be helpful for the court to
address this issue explicitly--that is, to inform counsel on the
record whether the court is satisfied with counsel's informal
offer of proof--if the court fails to do so sua sponte, the
obligation to obtain such a ruling remains with counsel. Espe-
cially given how easy it is for counsel to obtain such a ruling
from the court, we are disinclined to engage in speculation about
whether the court was willing to accept an informal offer of
proof if the record is not explicit on that point. Thus, absent
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such an explicit record, it was incumbent upon defendant's
counsel to make a formal offer of proof to the court to preserve
for appeal the court's ruling that the testimony in question was
not admissible.
Here, the record is clear that the trial court explic-
itly rejected any informal offer of proof. The court made clear
its position regarding the offer of proof as to Fulero's testi-
mony, as follows:
"[F]rankly[, the court is] very frus-
trated at that. [The court is] at a loss in
how to *** rule on this motion without [know-
ing what] the evidence *** is going to be.
So[, the court's] ruling on the State's
[m]otion *** [is] this; the motion is allowed
unless and until the court is presented with
certain evidence that this eyewitness expert
has real probative evidence that does not
invade the province of the jury in determin-
ing credibility of witnesses."
A few days later, defendant filed a motion to recon-
sider, in which counsel again attempted to make an informal offer
of proof. In response, the trial court entered its findings as
follows:
"Today in [defendant's] motion to recon-
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sider, *** defendant has filed and attached
to the motion to reconsider exhibit A[,]
which is *** titled ['A] brief outline of
testimony['] and is purported to be an out-
line of the testimony to be presented by ***
Ful[e]ro. The court certainly understands
the concern raised by [defense counsel] here
and [the court is] not *** suggesting any
kind of fraud here[, b]ut this is simply a
document, a typed page that is not attribut-
able in terms of authorship to anyone[.] It
is not an official report of *** Fulero, and
it is simply an outline of those subjects ***
that he would apparently testify about in
terms of the general theory of memory and
what affects memory and various stages of the
memory process in human beings, specifi-
cally[,] eyewitnesses.
It does not indicate that the *** pro-
posed witness has reviewed any evidence in
this case. It does not purport to provide
any opinions of *** Fulero regarding his
opinions regarding the eyewitness identifica-
tions in this case such that they are and it
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certainly does not in any way provide the
court with any additional information as to
how his testimony relates to the facts of
this case.
* * *
[W]e are not any further today [(April
the 21st)] then we were on April the 7th.
[The court has] some understanding of what
the eyewitness would testify to in general
***. [However], none of that has been re-
lated to any of the specific facts in this
case. The witness has not tendered any ex-
pert opinion as to the facts in this case
***[. At] this point[, the court has] no
idea what this expert witness would testify
to that would be relevant to the facts in
this particular case.
[F]or that reason[,] the motion to re-
consider is denied."
Because defendant failed to make an adequate offer of
proof--that is, a formal offer of proof (as required by the trial
court) of Fulero's testimony from the witness stand--we have no
way of knowing whether the excluded testimony would have (1) been
admissible or (2) assisted the jury in its determination of
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guilt. Thus, defendant's failure to make an adequate offer of
proof deprives this court of the record required to determine
whether the court abused its discretion by granting the State's
motion in limine to exclude Fulero's expert testimony.
F. Defendant's Claim That the Trial Court Erred by Failing To
Question the Jurors Regarding the Presumption of Innocence
Defendant next contends that the trial court erred by
failing to sua sponte question the jurors regarding the presump-
tion of innocence. In particular, defendant asserts that the
court failed to comply with Supreme Court Rule 431(b) (Official
Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May
1, 2007), which requires, in pertinent part, that "[t]he court
shall ask each potential juror, individually or in a group,
whether that juror understands and accepts *** that the defendant
is presumed innocent of the charge(s) against him." Defendant
posits that the court's failure to specifically ask each juror
whether he or she understood that he was presumed innocent
warrants a new trial. We disagree.
1. Forfeiture and Plain Error
As a preliminary matter, we note that defendant con-
cedes that he has forfeited review of this issue. Nonetheless,
defendant maintains the issue may be addressed by this court
because it constitutes plain error.
Under the plain-error doctrine, a reviewing court may
consider an otherwise forfeited error when (1) the evidence is so
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closely balanced that the jury's guilty verdict may have resulted
from the error or (2) the error is so serious that the defendant
was denied a fair trial. People v. McLaurin, 235 Ill. 2d 478,
489, 922 N.E.2d 344, 351 (2009). However, before we decide in
this instance whether plain-error review is appropriate, we will
first determine whether the trial court erred at all.
2. Zehr and Rule 431(b)
In People v. Zehr, 103 Ill. 2d 472, 477-78, 469 N.E.2d
1062, 1064 (1984), the supreme court held that a trial court errs
when, during voir dire, it fails to ensure that jurors understand
that (1) the defendant is presumed innocent, (2) the State must
prove defendant guilty beyond a reasonable doubt, (3) the defen-
dant need not present any evidence on his own behalf, and (4) the
defendant's decision not to testify cannot be held against him.
In 2007, the supreme court amended Rule 431(b) to
require trial courts to sua sponte ask each potential juror
whether they understand and accept the Zehr principles. People
v. Graham, 393 Ill. App. 3d 268, 273, 913 N.E.2d 99, 103 (2009).
Specifically, Rule 431(b) states, in pertinent part, as follows:
"The court shall ask each potential
juror, individually or in a group, whether
that juror understands and accepts the [Zehr]
principles ***.
The court's method of inquiry shall
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provide each juror an opportunity to respond
to specific questions concerning the princi-
ples set out in this section." Official
Reports Advance Sheet No. 8 (April 11, 2007),
R. 431(b), eff. May 1, 2007.
3. This Court's Rule 431(b) Precedent
In People v. Owens, 394 Ill. App. 3d 147, 914 N.E.2d
1280 (2009), and People v. Yusef, 399 Ill. App. 3d 817, 822, 928
N.E.2d 143, 148 (2010), this court concluded that despite recit-
ing the Zehr principles to the venire en masse, the trial court
erred because it failed to directly ask the jurors--pursuant to
the second paragraph of Rule 431(b)--whether they understood
those principles. Similarly, in Roberson, 401 Ill. App. 3d at
766, 927 N.E.2d at 1285, this court held that the trial court
erred by failing to ask the jurors--pursuant to the first para-
graph of Rule 431(b)--all the Zehr questions. Having reviewed
the record in this case, we conclude that Owens, Yusef, and
Roberson are distinguishable and that our holding in People v.
Willhite, 399 Ill. App. 3d 1191, 1197, 927 N.E.2d 1265, 1270
(2010), guides our analysis in this case.
In Willhite, the trial court recited the Zehr princi-
ples to the jurors at the start of voir dire but also questioned
the jurors regarding their understanding and acceptance of the
Zehr principles after dividing them into smaller panels. Willhi-
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te, 399 Ill. App. 3d at 1195-96, 927 N.E.2d at 1269. From those
smaller panels, the jurors collectively acknowledged that they
understood and accepted the Zehr principles. Willhite, 399 Ill.
App. 3d at 1196, 927 N.E.2d at 1269. This court held that in
doing so, "the trial court committed no error." Willhite, 399
Ill. App. 3d at 1197, 927 N.E.2d at 1270.
4. The Trial Court's Zehr Questioning in This Case
Prior to trial, the trial court explained the Zehr
principles to the 40-person pool of potential jurors, as follows:
"Ladies and gentlemen, in this case,
[defendant], as with any other person who is
charged with a crime, is presumed innocent of
the charges that bring him before you. This
presumption is with him now at the onset of
this trial, and it will remain with him
throughout the course of the proceedings ***.
[This] is not overcome unless and until each
of you individually and collectively are
convinced beyond a reasonable doubt that ***
[d]efendant is guilty. It is absolutely
essential as we select this jury that each of
you understands and employs these certain
fundamental principles; that is, that all
persons charged with a crime are presumed to
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be innocent. And it is the burden of the
State *** to prove *** [d]efendant guilty
beyond a reasonable doubt. What this means
is that *** [d]efendant has no obligation to
testify in his own behalf or to call any
witnesses in his defense. ***
The fact that *** [d]efendant chooses
not to testify must not be considered by you
in any way in arriving at your verdict. ***
The bottom line, however, is that there
is no burden upon *** [d]efendant to prove
his innocence. It is the State's burden to
prove him guilty beyond a reasonable doubt."
The court then divided the potential jurors into smaller panels--
mostly of four--for questioning. As part of its questioning, the
court asked each group, in pertinent part, the following ques-
tions, to which the jurors collectively responded:
"[THE COURT: W]hen [the court] was ad-
dressing the entire group, [it] touched on
some general principles of the law that apply
to all criminal cases. Now, one of those was
the presumption of innocence. Do each of you
understand and accept that this means that
*** [d]efendant does not need to prove his
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innocence?
Seeing all positive responses.
* * *
[THE COURT:] Do each of you understand
that he does not need to testify, and that if
he chooses not to testify, that you must not
consider that in any way in arriving at a
verdict? Each of you understand that?
Seeing all positive responses."
Here, as in Willhite, the trial court recited the Zehr
principles to the jurors at the start of voir dire but also
questioned the jurors regarding their understanding and accep-
tance of the Zehr principles after dividing them into smaller
panels. From the smaller panels, the jurors collectively ac-
knowledged that they understood and accepted those Zehr princi-
ples, and in particular, that defendant was presumed innocent of
the charges against him. Therefore, we conclude, as we did in
Willhite, that the trial court complied with Rule 431(b).
Accordingly, we need not decide whether the court committed plain
error in this case.
G. Defendant's Claim That the State's Evidence Was Insufficient
To Prove Him Guilty of Sexually Assaulting A.M.
Defendant next contends that the State failed to prove
him guilty beyond a reasonable doubt of sexually assaulting A.M.
Specifically, defendant contends that because (1) A.M. could not
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identify her attacker, (2) the State failed to produce deoxyribo-
nucleic acid (DNA) linking him to the attack, (3) he was working
during the time of her attack, (4) "material differences" existed
between her attack and those committed against the other victims,
and (5) other potential perpetrators were not sufficiently
pursued, the State failed to prove beyond a reasonable doubt that
he committed the aggravated criminal sexual assault of A.M.
Defendant misconstrues the focus of our sufficiency-of-the-
evidence review. The question is not, "What did the State fail
to show?" but, instead, "Was the evidence the State presented
sufficient to prove that defendant perpetrated the crimes
charged?" We answer this latter question in the affirmative.
"We review a defendant's challenge to the sufficiency
of the evidence to determine whether, after viewing the evidence
in the light most favorable to the State, any rational trier of
fact could have found the essential elements of the offense
beyond a reasonable doubt." People v. Grimes, 386 Ill. App. 3d
448, 455, 898 N.E.2d 768, 774-75 (2008). "This same standard of
review applies regardless of whether the evidence is direct or
circumstantial." People v. Cooper, 194 Ill. 2d 419, 431, 743
N.E.2d 32, 40 (2000). The jury's findings are entitled to great
weight, given that it is in the best position to judge the
credibility and demeanor of the witnesses. People v. Wheeler,
226 Ill. 2d 92, 114-15, 871 N.E.2d 728, 740 (2007). Moreover,
- 84 -
the jury need not conclude beyond a reasonable doubt as to each
link in the chain of circumstances. People v. Slater, 393 Ill.
App. 3d 977, 982, 924 N.E.2d 1039, 1044 (2009). Instead, the
jury need only be satisfied that all the evidence, taken to-
gether, shows that the defendant committed the crime charged
beyond a reasonable doubt. Slater, 393 Ill. App. 3d at 982, 924
N.E.2d at 1044. In reaching its verdict, the jury is not re-
quired to (1) disregard inferences that flow normally from the
evidence presented or (2) search out all possible explanations
consistent with innocence and raise them to the level of reason-
able doubt. Slater, 393 Ill. App. 3d at 982, 924 N.E.2d at 1044.
An accused commits aggravated criminal sexual assault,
in pertinent part, when he commits an act of sexual penetration
by the use of force or threat of force, while displaying, threat-
ening to use, or using a dangerous weapon other than a firearm.
720 ILCS 5/12-14(a)(1) (West 2006).
Here, the State presented the following evidence that
defendant committed aggravated criminal sexual assault against
A.M.: (1) defendant logged off duty at 3:44 a.m.; (2) the sexual
assault took place at approximately 4:30 a.m.; (3) A.M.'s at-
tacker wore a black ski mask, jeans, and a black coat, which were
similar to the items worn by the perpetrator of the other sexual
assaults charged in this case and linked to defendant; (4) A.M.'s
attacker (a) shined a flashlight on her, (b) put twine around her
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neck, (c) threatened her at knifepoint, (d) ordered her to take
off all her clothes, (e) told her that he had been watching her,
(f) inquired about her roommate, (g) performed oral sex on her,
and (h) put his fingers in her vagina, as in the other sexual
assaults charged in this case and linked to defendant; and (5)
defendant accessed--for no apparent legitimate law enforcement
reason--(a) A.M.'s and her roommate's personal information
through LEADS by running their license plate numbers and (b)
A.M.'s parent's personal information through the NCIC database
the month before the sexual assault on A.M.
This evidence, and our reading of the record as a
whole, compels the conclusion that the same perpetrator committed
all the crimes in this case--that is, as we used the term ear-
lier, they were signature crimes, committed by the same assail-
ant. The jury could consider--as do we--the strength of the
State's case linking defendant to each of those signature crimes
individually. Accordingly, we conclude that the State presented
far more than merely sufficient evidence to prove defendant
guilty beyond a reasonable doubt in connection with the aggra-
vated criminal sexual assault of A.M.
H. Defendant's Claim That His Sentence Enhancements for Using a
Weapon Against K.H., A.L., and S.K. Violate the Proportionate-
Penalties Clause of the Illinois Constitution
Defendant next contends that his sentencing enhance-
ments for aggravated criminal sexual assault while armed with a
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knife or firearm (counts related to K.H., A.L., and S.K.) (720
ILCS 5/12-14(a)(1), (a)(8) (West 2006)) violate the
proportionate-penalties clause of the Illinois Constitution (Ill.
Const. 1970, art. I, §11) when compared to the offense of armed
violence with a category I or category II weapon predicated upon
criminal sexual assault (720 ILCS 5/33A-2(a) (West 2006)).
Specifically, defendant asserts that the two offenses are "com-
prised of substantially identical elements" but have different
sentences. We agree with defendant insofar as a firearm is
concerned.
The supreme court has established two alternative ways
in which a defendant may challenge a statute based on
proportionate-penalties grounds. See People v. Sharpe, 216 Ill.
2d 481, 517-18, 839 N.E.2d 492, 514-15 (2005). A defendant may
argue that a penalty (1) violates the "cruel or degrading"
standard or (2) is harsher than the penalty for an offense with
identical elements. People v. McCarty, 223 Ill. 2d 109, 137, 858
N.E.2d 15, 33 (2006).
"Courts have a duty to construe a statute in a manner
that upholds its validity and constitutionality if it reasonably
can be done." People v. Baker, 341 Ill. App. 3d 1083, 1087, 794
N.E.2d 353, 357 (2003). Because such challenges attack the
constitutionality of statutes--which is an issue of law--our
review is de novo. People v. Klepper, 234 Ill. 2d 337, 348, 917
- 87 -
N.E.2d 381, 386 (2009).
This court recently rejected the argument defendant
posits related to enhancements based upon the use of a knife, as
follows:
"The elements of aggravated criminal
sexual assault are achieved when an accused
(1) commits a criminal sexual assault (2)
while displaying, threatening to use, or
using (3) a dangerous weapon other than a
firearm--such as, a knife. 720 ILCS 5/12-
14(a)(1) (West 2006). The elements of armed
violence with a category II weapon predicated
upon criminal sexual assault are achieved
when an accused (1) commits criminal sexual
assault (2) while armed with (3) a category
II weapon--such as a knife. 720 ILCS 5/33A-
1(c)(2), 33A-2(a) (West 2006).
The plain language of these statutes
reveals that their elements are not identi-
cal. That is, an accused could commit aggra-
vated criminal sexual assault by committing
sexual assault, while threatening to use--
although not actually armed with--a knife.
Such an act would not substantiate a charge
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of armed violence with a category II weapon
predicated upon criminal sexual assault be-
cause the accused would not have been armed."
(Emphasis in original.) People v. Henderson,
394 Ill. App. 3d 747, 754-55, 915 N.E.2d 473,
479 (2009).
We continue to adhere to our holding in Henderson as to
the sentencing enhancements related to the knife (the category II
weapon). However, after reviewing the statutory provisions, we
conclude that the aggravated criminal sexual assault predicated
upon the accused having been armed with a firearm--that is, when
an accused (1) commits a criminal sexual assault (2) while armed
with a firearm (720 ILCS 5/12-14(a)(8) (West 2006))--when com-
pared to armed violence with a category I weapon predicated upon
criminal sexual assault--that is, when an accused (1) commits
criminal sexual assault (2) while armed with (3) a category I
weapon--such as firearm (720 ILCS 5/33A-1(c)(2), 33A-2(a) (West
2006))--violates the proportionate-penalties clause. In other
words, aggravated criminal sexual assault predicated upon the
accused having been armed with a firearm (720 ILCS 5/12-14(a)(8)
(West 2006)) and armed violence with a category I weapon predi-
cated upon criminal sexual assault (720 ILCS 5/33A-1(c)(2), 33A-
2(a) (West 2006)) have identical elements.
Accordingly, we vacate the 15-year enhancements--that
- 89 -
is, those enhancements based on the use of a firearm--for defen-
dant's aggravated-criminal-sexual-assault conviction and remand
with directions that the trial court issue an amended written
judgment to so reflect. See Baker, 341 Ill. App. 3d at 1090, 794
N.E.2d at 359 (vacating the defendant's 15-year enhancement for
aggravated-kidnaping conviction and remanding with directions
that the trial court amend its written judgment).
In closing, we note that some of the crimes that were
enhanced based upon the use of a firearm appear to have been
eligible for enhancement based upon defendant's use of a knife as
well. For the reasons we have explained, enhancements in this
context based upon the use of a knife do not run afoul of the
proportionate-penalties clause and, if appropriate, may be used
by the trial court on remand to enhance defendant's sentence.
III. CONCLUSION
For the reasons stated, we affirm in part, vacate in
part, and remand with directions. As part of our judgment, we
award the State it $75 statutory fee against defendant as costs
of this appeal.
Affirmed in part and vacated in part; cause remanded
with directions.
TURNER and APPLETON, JJ., concur.
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