People v. Alhmdan , 2021 IL App (2d) 200759-U ( 2021 )

2021 IL App (2d) 200759-UNo. 2-20-0759
Order filed December 20, 2021
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(l).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Winnebago County.
)
Plaintiff-Appellee, )
)
v. ) No. 19-CF-784
)
TAREQ AHMAD ALHMDAN, ) Honorable
) Brendan A. Maher,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE ZENOFF delivered the judgment of the court.
Presiding Justice Bridges and Justice Hutchinson concurred in the judgment.
ORDER
¶1 Held: There was no error where (1) defendant’s trial counsel did not perform a deficient
investigation, (2) the victim’s prior consistent statements were properly admitted
pursuant to a hearsay exception, (3) the State proved that defendant committed two
distinct acts of “sexual penetration,” and (4) there was no one act, one crime
violation. Therefore, we affirm.
¶2 Following a jury trial, defendant, Tareq Ahmad Alhmdan, was convicted of two counts of
criminal sexual assault (720 ILCS 5/11-1.20(a)(1) (West 2016)), one count of unlawful restraint
(720 ILCS 5/10-3(a) (West 2016)), and one count of battery (720 ILCS 5/12-3(a)(2) (West 2016)).
2021 IL App (2d) 200759-UThe court sentenced defendant to a total of nine years in prison. Defendant appeals. For the
following reasons, we affirm.
¶3 I. BACKGROUND
¶4 In the early morning hours of September 30, 2017, L.S. and her friend Melanie Nash-Jones 1
went to a bar in Rockford. They met some men there and decided to accompany them to
defendant’s residence. Neither L.S. nor Nash-Jones previously knew defendant or any of the other
individuals who were at the residence. L.S. and defendant had a sexual encounter. L.S. claimed
that she was raped, whereas defendant claimed that their activity was consensual. The State
charged defendant with three counts of criminal sexual assault, unlawful restraint, and battery. The
criminal sexual assault charges involved contact between defendant’s penis and L.S.’s mouth
(count I), contact between defendant’s penis and L.S.’s sex organ (count II), and defendant
inserting his penis into L.S.’s vagina (count III).
¶5 The matter proceeded to a jury trial. Defendant relied on the assistance of an Arabic
interpreter at trial.
¶6 A. The State’s Case
¶7 We begin by summarizing the testimony provided by L.S. and Nash-Jones. We will then
briefly mention the testimony of other State witnesses who were involved in the investigation and
L.S.’s medical treatment.
¶8 1. L.S.
1
Nash-Jones had a different last name at the time of trial than she did in September 2017,
given her intervening marriage. For purposes of this appeal, we will use the name that she provided
at trial.
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2021 IL App (2d) 200759-U¶9 L.S. testified, in relevant portion, as follows. Before going to defendant’s residence on
September 30, 2017, she and Nash-Jones agreed on a word that they would use to alert each other
of any trouble: “pineapples.” At the residence, L.S. spoke with defendant. Defendant led her by
the hand and showed her the upstairs of the residence, including a bedroom. Defendant tried to
grab her hand to stay in the bedroom, but she pulled away and went downstairs. While downstairs,
L.S. saw Nash-Jones and told her that it was time to go. Nash-Jones, however, was on her phone
and went into a bathroom and shut the door. Defendant then grabbed L.S.’s hand in a “leading
manner” and directed her back upstairs. L.S. pulled back, but other men in the apartment blocked
the stairs so that she could not go back downstairs.
¶ 10 L.S. testified that defendant led her into an upstairs bedroom and shut the door. He pushed
her onto a mattress that was on the floor. She grabbed her phone and sent messages to Nash-Jones
imploring “pineapples” and “please help me.” Nash-Jones did not respond. Defendant took L.S.’s
phone and keys away from her. L.S. had her legs crossed, and defendant pulled her leggings until
she heard a ripping sound. Her legs were on the floor and her upper body was on the mattress. This
position caused her severe pain in her back because she has scoliosis. Defendant removed her pants
and took off his own clothes.
¶ 11 According to L.S., defendant then tried to “shove” his penis into her vagina. He was
initially unsuccessful at penetrating her because she was not “wet.” This made defendant mad, so
he spit on L.S.’s “private parts” and “kept trying” to insert his penis. Defendant then tried to make
L.S. perform oral sex on him. He touched his penis to L.S.’s mouth, but she turned away so that
he could not insert it into her mouth. She told him “no” and “stop” and asked if she could go home.
Defendant responded: “this is your home now.” Defendant grabbed L.S.’s hair and shook her. He
asked her to kiss him, but she would not do so. This, along with L.S.’s refusal to say that she liked
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2021 IL App (2d) 200759-Usex, made defendant angry.
¶ 12 L.S. testified that defendant then penetrated her vagina with his penis for “[a]while.” He
kept asking her if she liked it. She stayed silent, wanting it to be over. Defendant asked L.S. if he
could ejaculate inside of her. She said no. He ejaculated on her stomach. He then left the bed to go
to the bathroom. L.S. grabbed her phone, keys, and an earring that had fallen off. She used the
earring to scrape some of the semen off her stomach. She put her clothes on and went downstairs
as quickly as she could.
¶ 13 According to L.S., once downstairs, she banged on the bathroom door and told Nash-Jones
“let’s go.” L.S. was crying and upset, but she could not immediately tell Nash-Jones why. When
L.S. and Nash-Jones got into their car to leave, defendant approached L.S.’s car and asked where
she was going. L.S. responded that she had to pick up her mother. Defendant offered to drive her,
saying something like “your mom is my mom now.” Defendant also tried to get L.S. to drink water,
telling her that she was “a little drunk.” L.S. and Nash-Jones ultimately left the residence.
¶ 14 Shortly thereafter, L.S. told Nash-Jones about the sexual assault. L.S. later told her mother.
L.S. then called the police around 9 a.m. that same morning to make a report. Police officers
collected L.S.’s clothing and advised her to go to the hospital, which she did. L.S. submitted to a
sexual assault kit. She then assisted police officers in their investigation, which ultimately led to
defendant’s arrest.
¶ 15 On cross-examination, L.S. explained that defendant did not grab her the first time that
they went upstairs, though he did the second time. As they went up the stairs the second time, L.S.
struggled against defendant so hard that she almost fell. She kept saying “no” as she was being
pulled upstairs, and there were people blocking the stairs.
¶ 16 As to the sexual activity, on cross-examination, L.S. testified that she heard a ripping sound
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2021 IL App (2d) 200759-Uas defendant pulled off her leggings. When she put her clothes back on, she noticed a few strings
“[a]round the band” of the leggings. L.S. testified that she yelled “no” during the sexual assault
and that defendant yelled back at her. As she was screaming, people downstairs turned up the
music until it was extremely loud. L.S. additionally described defendant pulling her hair, slapping
her face, and slapping her breast.
¶ 17 2. Nash-Jones
¶ 18 Although Nash-Jones did not witness the alleged sexual assault, she corroborated L.S.’s
testimony on many points regarding the events of September 30, 2017. However, Nash-Jones’s
testimony diverged from L.S.’s testimony as to whether defendant pulled or otherwise forced L.S.
up the stairs. Nash-Jones testified that she saw L.S. speak with both defendant and somebody
named “Obood” before the alleged sexual assault. Nash-Jones later saw L.S. “heading upstairs”
with defendant, and L.S. had “a little smirk” on her face.
¶ 19 On cross-examination, defense counsel inquired further as to whether L.S. voluntarily went
upstairs with defendant. Defense counsel asked Nash-Jones whether, before L.S. and defendant
went upstairs, L.S. whispered to Nash-Jones that defendant wanted to go upstairs. Nash-Jones
answered in the negative. Defense counsel then confronted Nash-Jones with her prior written
statement to a police officer. Nash-Jones acknowledged that, if her statement said the L.S. grabbed
on to Nash-Jones and whispered that defendant wanted L.S. to go upstairs with him, that would be
accurate. Nash-Jones then testified that she told L.S. that she “wouldn’t do it” if she were L.S.
Nash-Jones further testified that she mouthed “what are you doing?” to L.S. as L.S. went upstairs
with defendant. L.S. then looked at Nash-Jones and smirked.
¶ 20 3. The Investigation and Medical Treatment
¶ 21 Kyle Olsta of the Rockford Police Department took the initial report from L.S. on
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2021 IL App (2d) 200759-USeptember 30, 2017. He collected clothing from L.S. before advising her to go to the hospital.
Olsta did not recall seeing rips or tears in L.S.’s clothing.
¶ 22 Alyssa Hawkins, a nurse at OSF St. Anthony Medical Center, treated L.S. in the emergency
department on September 30, 2017. Hawkins testified, without objection from the defense, about
what L.S. related to her about some of the details of the sexual assault and the events leading up
to it. Although L.S. reported to Hawkins experiencing pain and tenderness, Hawkins examined
L.S.’s body and did not notice bruises.
¶ 23 Dr. Prakriti Shah, an emergency room physician, also treated L.S. on September 30, 2017.
Without objection from the defense, Dr. Shah briefly described what L.S. related to her about the
sexual assault and the events leading up to it. Dr. Shah testified that L.S. reported tenderness but
had no bruises, contusions, or scratches. Dr. Shah explained that L.S. had dark skin and that one’s
skin tone and body size could impact the visibility of marks and bruising.
¶ 24 Detective Allen Semenchuk of the Rockford Police Department conducted the follow-up
investigation of L.S.’s report of sexual assault. Semenchuk first met with defendant on April 30,
2018, at which time defendant requested an Arabic interpreter. The department’s Arabic interpreter
was unavailable, so Semenchuk told defendant in English what the investigation entailed.
Semenchuk told defendant that L.S. accused defendant of raping her. Defendant asked what that
meant. Semenchuk explained the concept of rape as that defendant “had sex with her when she
didn’t want him to.” Defendant responded: “[N]o, I didn’t. No sex.” Defendant then told
Semenchuk that he was engaged and showed Semenchuk a picture of his fiancé.
¶ 25 According to Semenchuk, he had another discussion with defendant on April 2, 2019, this
time with the assistance of an Arabic interpreter. Defendant said that he was “being accused of
sleeping her [sic] and didn’t.”
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2021 IL App (2d) 200759-U¶ 26 Dexter McElhiney, a forensic scientist, testified that sperm recovered from L.S.’s person
on September 30, 2017, matched defendant’s profile.
¶ 27 B. Defendant’s Testimony
¶ 28 Before defendant’s testimony, the court allowed defense counsel to question defendant
about the current whereabouts of his friends who were at the house party on September 30, 2017.
Defense counsel intended to show that these witnesses were unavailable to testify, as they were in
Saudi Arabia.
¶ 29 Defendant testified that, on the night of September 29-30, 2017, he went to a bar in
Rockford with Obood Badahman and Abdulla Alsharif. Defense counsel asked defendant where
Alsharif was today. Defendant responded: “In Saudi Arabia.” Counsel then questioned defendant
about Badahman’s whereabouts:
“Q. And who is your other friend?
A. Obood Badahman.
Q. And where is he today?
A. In Saudi Arabia.
Q. We’ve also heard the name Obood Badahman. Do you know Obood Badahman?
A. Yes.
Q. And where is he today?
A. He is in courtroom.”
The record does not reflect whether Badahman really was in the courtroom, and the attorneys did
not ask any follow-up questions on that point. The defense did not call Badahman as a witness.
¶ 30 Defendant testified that he had a consensual sexual encounter with L.S. He denied many
of L.S.’s allegations regarding their encounter. Defendant also denied telling Semenchuk that he
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2021 IL App (2d) 200759-Udid not have sex with L.S. Defendant claimed that he instead told Semenchuk that he did not rape
L.S.
¶ 31 On cross-examination, defendant testified that, from June 2016 until April 2019, he
attended Rockford University. He did not have an Arabic interpreter for his classes.
¶ 32 C. Verdict
¶ 33 The jury found defendant not guilty on count I of the indictment, which alleged criminal
sexual assault by penis-to-mouth contact. The jury found defendant guilty of the remaining
charges.
¶ 34 D. Posttrial Motion
¶ 35 Defendant procured new counsel, who filed an amended postjudgment motion alleging
ineffective assistance of trial counsel. Among defendant’s claims were that his trial counsel “did
so little investigation that he was apparently unaware that a potential witness, Obood Badahman,
was present in the courtroom gallery” during trial.
¶ 36 The court held an evidentiary hearing on defendant’s allegations of ineffective assistance
of counsel. Defendant’s trial attorney, Dennis Steeves, testified that he questioned defendant on
the stand about Badahman’s whereabouts to show the jury that Badahman was unavailable as a
witness. Steeves did not know that defendant was going to respond that Badahman was in the
courtroom. Steeves testified, however, that he “[a]bsolutely” asked defendant prior to defendant’s
testimony about the whereabouts of Badahman and the other people who were at the party. When
questioned as to whether he asked defendant on the day of trial where these people were, Steeves
explained that he and defendant discussed, through an interpreter, defendant’s testimony just
before he testified.
¶ 37 Defendant, on the other hand, testified that he and Steeves never discussed what questions
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2021 IL App (2d) 200759-Uwould be asked at trial. Defendant insisted that he did not know that Steeves was going to ask him
about Badahman’s whereabouts.
¶ 38 The court denied defendant’s amended postjudgment motion in a comprehensive written
order. As it is relevant to this appeal, the trial court found that, to the extent that Steeves’s
testimony conflicted with defendant’s, Steeves was more credible “with respect to the subjects on
which they each testified.” The court also noted that there was no indication as to what Badahman’s
testimony would have been had he been called as a witness.
¶ 39 E. Sentencing
¶ 40 The court sentenced defendant to a total of nine years’ imprisonment. This included four
years for one count of criminal sexual assault and five years for the other count. Those sentences
were to be served consecutively. Defendant also received a one-year prison sentence for unlawful
restraint, which was to be served concurrently with the sentences for criminal sexual assault. The
court fined defendant in connection with his battery conviction. Defendant timely appealed.
¶ 41 II. ANALYSIS
¶ 42 A. Ineffective Assistance of Counsel Regarding Obood Badahman
¶ 43 Defendant first argues that he received ineffective assistance of counsel because Steeves
elicited a “prejudicial revelation” from defendant that Badahman was in the courtroom. According
to defendant, Steeves “created an unreasonable and unacceptable risk that the jury believed that
the reason [Badahman] was not called to the stand was that he would have provided testimony
favorable to the State that would undermine [defendant].” The State responds that defendant failed
to show either that Steeves performed deficiently or that such deficiency prejudiced the defense.
¶ 44 The governing principles are outlined in Strickland v. Washington, 466 U.S. 668 (1984).
In reviewing a claim of ineffective assistance, we apply a “strong presumption that counsel’s
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2021 IL App (2d) 200759-Uconduct falls within the wide range of reasonable professional assistance,” and the defendant must
overcome the presumption that his counsel pursued a sound trial strategy. Strickland, 466 U.S. at
689. To sustain a claim of ineffective assistance, a defendant must show that his counsel’s
performance was deficient and that such deficiency prejudiced the defense. Strickland, 466 U.S.
at 687. An attorney’s performance is deficient where he or she made errors that were so serious
that he or she “was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Strickland, 466 U.S. at 687. A defendant establishes prejudice where “counsel’s
errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”
Strickland, 466 U.S. 687. In that respect, a defendant “must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.
¶ 45 The parties dispute the standard of review. Citing People v. Hale, 2013 IL 113140,
defendant proposes that we should review his claim de novo. The State responds that, because the
trial court rejected defendant’s ineffective-assistance claim on the merits, we may reverse only if
the court’s determination was manifestly erroneous. Contrary to what defendant asserts, Hale
supports applying the manifest-weight-of-the-evidence standard of review. In Hale, our supreme
court recognized that, “[i]n general, the standard of review for determining if an individual’s
constitutional rights have been violated is de novo.” Hale, 2013 IL 113140, ¶ 15. Nevertheless,
later in the opinion, the court determined that the trial court’s credibility determination was “not
against the manifest weight of the evidence.” Hale, 2013 IL 113140, ¶ 24. Steeves and defendant
offered conflicting testimony about their trial preparation, including the nature of their
conversations regarding Badahman’s whereabouts. The trial court denied defendant’s amended
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2021 IL App (2d) 200759-Upostjudgment motion, reasoning, in part, that Steeves was more credible than defendant. We could
not reverse the court’s decision without concluding that this credibility assessment was
erroneous—an argument that defendant does not make. Accordingly, in accordance with Hale, we
will apply the manifest-weight-of-the-evidence standard of review to the issue of whether
Steeves’s performance was deficient.
¶ 46 Defendant claims that Steeves performed an insufficient investigation. Specifically,
defendant asserts that Steeves failed to interview him “to find out the identity of his friends at the
party and their whereabouts at the time of trial,” which led to counsel being surprised when
defendant testified that Badahman was in the courtroom. We find it concerning that defendant’s
brief (1) fails to provide a full recitation of the relevant testimony that Steeves provided at the
postjudgment hearing and (2) neglects to mention that the trial court deemed Steeves more credible
than defendant.
¶ 47 Steeves testified that, prior to defendant’s testimony, he “[a]bsolutely” questioned
defendant about Badahman’s whereabouts. Steeves explained that he asked defendant “a couple
of times” whether there was anybody at the party who the defense needed to have testify, and
defendant provided contact information only for a person other than Badahman. When questioned
about whether he asked defendant on the day of trial “where these people were” (i.e., Badahman
and defendant’s other friends), Steeves responded that, just before defendant testified, he and
defendant discussed defendant’s forthcoming testimony. Thus, although Steeves was surprised
when defendant testified that Badahman was in the courtroom (after initially saying that Badahman
was in Saudi Arabia), Steeves’ testimony showed that the reason for the surprise was that defendant
said something on the stand that was different from what he had told Steeves previously. Steeves’s
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2021 IL App (2d) 200759-Utestimony defeats defendant’s claim of an insufficient investigation, and the trial court credited
Steeves’s testimony.
¶ 48 Moreover, as the State notes, immediately before defendant testified, the parties and the
court discussed whether Steeves could elicit testimony from defendant that his friends who were
with him on September 30, 2017, were unavailable to testify. During that discussion, Steeves told
the court that Badahman was in Saudi Arabia and could not come to the United States. Defendant
was present for this conversation and had the benefit of an interpreter. Nevertheless, defendant
evidently did not correct Steeves’s misconception. It is disingenuous for defendant to blame his
counsel for the confusion as to Badahman’s whereabouts when defendant failed to correct the
confusion.
¶ 49 Defendant’s failure to show that Steeves performed deficiently defeats the claim of
ineffective assistance, so we need not consider whether defendant demonstrated prejudice. See
Strickland, 466 U.S. at 697.
¶ 50 B. Prior Consistent Statements
¶ 51 Defendant next argues that the State improperly elicited hearsay testimony regarding prior
consistent statements that L.S. made to medical providers. Defendant adds that the State
improperly used such evidence during its opening statement and closing argument. Defendant
acknowledges that he forfeited this argument by failing to raise it below, but he seeks review of
the issue pursuant to the first prong of the plain-error doctrine. He also argues that his trial counsel
was ineffective for failing to object to the subject testimony and the prosecutor’s comments.
¶ 52 The State responds that the subject testimony was admissible. According to the State,
because the testimony was properly admitted as substantive evidence, the State was free to
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2021 IL App (2d) 200759-Ucomment on it, especially where identity was not a disputed issue at trial. The State further argues
that defendant forfeited his ineffective-assistance-of-counsel claim by failing to raise it below.
¶ 53 The plain-error doctrine allows a reviewing court to address a forfeited argument where
“(1) a clear or obvious error occurred and the evidence is so closely balanced that the error alone
threatened to tip the scales of justice against the defendant, regardless of the seriousness of the
error, or (2) a clear or obvious error occurred and that error is so serious that it affected the fairness
of the defendant’s trial and challenged the integrity of the judicial process, regardless of the
closeness of the evidence.” People v. Birge, 2021 IL 125644, ¶ 24. The defendant bears the burden
of persuasion under either prong. Birge, 2021 IL 125644, ¶ 24.
¶ 54 Generally, a witness’s prior consistent statements are inadmissible hearsay and cannot be
used to bolster the witness’s credibility. People v. Randolph, 2014 IL App (1st) 113624, ¶ 14. “The
basis for this rule is a concern that the trier of fact is likely to unfairly enhance the credibility of a
witness simply because his statement has been repeated.” Randolph, 2014 IL App (1st) 113624,
¶ 14. There is an exception to this rule in prosecutions for criminal sexual assault. In such cases,
the parties may offer “statements made by the victim to medical personnel for purposes of medical
diagnoses or treatment including descriptions of the cause of symptom, pain or sensations, or the
inception or general character of the cause or external source thereof insofar as reasonably
pertinent to diagnosis or treatment.” Ill. R. Evid. 803(4) (eff. Sept. 28, 2018); see also 725 ILCS
5/115-13 (West 2018).
¶ 55 Courts have “liberally construed” the hearsay evidence that is admissible pursuant to this
exception. People v. Stull, 2014 IL App (4th) 120704, ¶ 79. Medical personnel may relate what
the victim told them about the sexual assault, including “the background and cause” of the injuries
and “the particulars of her assailant’s conduct.” People v. Denny, 241 Ill. App. 3d 345, 361 (1993).
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2021 IL App (2d) 200759-UNevertheless, some courts have said that “statements describing an offender” are “beyond the
scope of the exception.” People v. Kinnerson, 2020 IL App (4th) 170650, ¶ 50; but see People v.
Falaster, 173 Ill. 2d 220, 230 (1996) (“We believe that, at least in the family setting, a victim’s
identification of a family member as the offender is closely related to the victim’s diagnosis and
treatment in cases involving allegations of sexual abuse, and thus we agree with those decisions
that have permitted the admission of such hearsay evidence.”).
¶ 56 Defendant acknowledges that “[s]ome of L.S.’s statements elicited through Nurse Hawkins
and Dr. Shah were used properly to show the course of L.S.’s diagnosis and treatment.” Defendant
also recognizes that neither Dr. Shah nor Hawkins testified that L.S. identified defendant as the
perpetrator of the sexual assault. Although defendant’s argument could have been clearer, he
appears to take the position that any descriptive information about the perpetrator—such as that
the perpetrator was a stranger whom the victim met at a bar—exceeds the scope of the hearsay
exception for medical treatment.
¶ 57 Dr. Shah testified that her conversation with L.S. dictated the course of L.S.’s physical
examination. Hawkins testified similarly that it was important to obtain information from L.S.
about the assault so that they could treat her. Dr. Shah and Hawkins briefly related what L.S. told
them about the general background leading up to the sexual assault and some details regarding the
assailant’s conduct. Neither Dr. Shah nor Hawkins testified that L.S. identified defendant as her
assailant. To the contrary, Hawkins testified that L.S. merely claimed that she did not know the
perpetrator before that night. L.S. believed that she knew the man’s name but not the spelling of
the name. Hawkins did not specify the name that L.S. mentioned.
¶ 58 We hold that the testimony provided by Dr. Shah and Hawkins came within the scope of
the hearsay exception for medical treatment. We note that, had defendant preserved his argument,
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2021 IL App (2d) 200759-Uwe would review the trial court’s admission of this testimony under the abuse-of-discretion
standard. See Stull, 2014 IL App (4th) 120704, ¶ 81. Had the trial court made a ruling on this issue,
we could reverse only if we concluded that no reasonable person would take the trial court’s
view. Stull, 2014 IL App (4th) 120704, ¶ 68. Defendant has not met this standard, let alone shown
that the subject testimony amounted to a clear or obvious error for purposes of plain-error review.
¶ 59 Defendant cites numerous cases decrying the use of prior consistent statements to bolster
a witness’s credibility. But most of defendant’s cases do not address the hearsay exception for
medical treatment, so they are irrelevant. The two cases that defendant cites where courts found
that testimony exceeded the scope of the hearsay exception for medical treatment are
distinguishable. In People v. Drake, 2017 IL App (1st) 142882, ¶ 25, affirmed in part and reversed
in part, 2019 IL 123734, the court held that the hearsay exception for medical treatment did not
apply where a nurse related a statement that the victim made more than a week after he was
admitted to the hospital, which obviously was after medical treatment had already commenced. In
People v. Oehrke, 369 Ill. App. 3d 63, 70 (2006), the court held that the common-law hearsay
exception for statements made for the purpose of medical treatment did not apply where the victim
made a statement, after her wound had been treated, identifying her son as her attacker. Here, by
contrast, L.S. made statements that dictated the course of her medical treatment, and the medical
personnel did not testify that L.S. identified defendant as the perpetrator.
¶ 60 Defendant also argues that the State committed error during its opening statement and
closing argument by using the testimony that Dr. Shah and Hawkins provided to emphasize that
L.S. was consistent in maintaining that she was sexually assaulted by defendant. But defendant
has not cited any case where a reviewing court held that the prosecution erred by commenting on
evidence that was properly admitted under the hearsay exception for medical treatment. Moreover,
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2021 IL App (2d) 200759-Uas the State correctly notes, where a prior statement is offered as substantive evidence pursuant to
a hearsay exception, “the mere fact that the statement is consistent with the declarant’s trial
testimony does not render that prior statement no longer admissible.” Stull, 2014 IL App (4th)
120704, ¶ 100. We are also cognizant that the trial court instructed the jury that opening statements
and closing arguments are not evidence and that the jury should disregard any arguments that were
not based on the evidence. Consequently, we hold that defendant has not met his burden to show
that the State’s opening statement or closing argument constituted a clear or obvious error.
¶ 61 We need not address the dispute between the parties as to whether defendant is
procedurally barred from arguing that his trial counsel was ineffective for failing to raise
objections. Even if defendant’s ineffective-assistance claim were preserved, it would fail. See
People v. Rogers, 2021 IL 126163, ¶ 32 (an attorney is not ineffective for failing to make a
meritless objection).
¶ 62 C. Cumulative Error
¶ 63 Defendant next argues that the cumulative impact of the errors relating to the two preceding
issues rendered the guilty verdicts unreliable and prejudiced him. This argument requires no
further consideration, as we have held that there was no error.
¶ 64 D. Sufficiency of the Evidence
¶ 65 Defendant further argues that one of his two convictions for criminal sexual assault should
be reversed based on the insufficiency of the evidence because L.S. denied penetration as to one
of the acts. The State responds that the evidence showed two distinct acts of “sexual penetration,”
as that term is defined by law.
¶ 66 When reviewing a challenge to the sufficiency of the evidence, the question is “whether,
after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact
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2021 IL App (2d) 200759-Ucould have found the essential elements of the crime beyond a reasonable doubt.” People v.
Herring, 324 Ill. App. 3d 458, 460 (2001). We may not reverse a conviction “unless the evidence
is so unreasonable, improbable, or unsatisfactory as to justify a reasonable doubt of the defendant’s
guilt.” Herring, 324 Ill. App. 3d at 460.
¶ 67 Defendant was charged with three counts of criminal sexual assault, which required the
State to prove that defendant committed an act of “sexual penetration” and used “force or threat of
force.” 720 ILCS 5/11-1.20(a) (West 2016). Defendant was convicted of two of those counts.
“ ‘Sexual penetration’ means any contact, however slight, between the sex organ or anus of one
person and an object or the sex organ, mouth, or anus of another person, or any intrusion, however
slight, of any part of the body of one person or of any animal or object into the sex organ or anus
of another person, including, but not limited to, cunnilingus, fellatio, or anal penetration. * * * ”
720 ILCS 5/11-0.1 (West 2016). “This definition reflects a broad concept of ‘sexual penetration,’ ”
encompassing both “contact” and “intrusion.” People v. Maggette, 195 Ill. 2d 336, 346-47 (2001).
Significantly, the “contact” clause does not require proof of physical penetration. Herring, 324 Ill.
App. 3d at 463. In this sense, the legal definition of “sexual penetration” is “contrary to the
commonly understood meaning” of that term. Herring, 323 Ill. App. 3d at 463.
¶ 68 In count II of the indictment, the State alleged that, on or about September 30, 2017,
defendant “committed an act of sexual penetration by the use of force or threat of force with [L.S.]
in that he made contact between his penis and the sex organ of [L.S.].” In her testimony, L.S.
described how defendant initially tried to “shove” his penis into her vagina. The prosecutor asked
L.S. whether defendant was “able to penetrate” her vagina. L.S. responded: “Not at first, no,”
because she “could not get wet for him.” According to L.S., defendant then got angry, spit on her
“private parts,” and “kept trying.”
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2021 IL App (2d) 200759-U¶ 69 We hold that a rational jury could have determined from L.S.’s testimony that defendant’s
conduct described above constituted the first act of “sexual penetration.” See Herring, 324 Ill.
App. 3d at 464 (the victim’s testimony that the defendant was “ ‘trying to stick his thing in’ ” was
sufficient to show “sexual penetration”). Although defendant emphasizes that L.S. denied
“penetration” up to this point in the encounter, a rational jury could have understood that comment
to mean only that defendant had not yet physically penetrated her vagina with his penis. Contrary
to what defendant agues, the jury could have reasonably concluded that defendant’s penis
contacted L.S.’s sex organ, not just that his penis “touched an area near” it.
¶ 70 Defendant cites cases involving contact between fingers and vaginas pursuant to the
“intrusion” clause of the definition of “sexual penetration.” See Maggette, 195 Ill. 2d 336; People
v. Guerrero, 2018 IL App (2d) 160920; People v. Bell, 234 Ill. App. 3d 631 (1992). Those cases
are distinguishable, as finger-to-vagina penetration pursuant to the “intrusion” clause requires
different proof than penis-to-vagina penetration pursuant to the “contact” clause.
¶ 71 The State also charged and proved a second incident of “sexual penetration.” Specifically,
in count III of the indictment, the State alleged that, on or about September 30, 2017, defendant
“committed an act of sexual penetration by the use of force or threat of force with [L.S.] in that he
made inserted [sic] his penis into the vagina of [L.S.].” In her testimony, L.S. described how
defendant—after unsuccessfully attempting to penetrate her vagina with his penis, and after she
resisted his attempts to insert his penis into her mouth—eventually inserted his penis into her
vagina. This plainly was an act of “sexual penetration,” and defendant does not argue otherwise.
¶ 72 Accordingly, we hold that a rational trier of fact could have found that the State proved
two distinct acts of “sexual penetration.” Defendant does not challenge the State’s proof that he
used or threatened force.
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2021 IL App (2d) 200759-U¶ 73 E. One Act, One Crime
¶ 74 Defendant’s final argument is closely related to his preceding one regarding the sufficiency
of the evidence. He asks us to vacate one of his convictions of criminal sexual assault pursuant to
the one act, one crime doctrine. Although defendant claims that he preserved this argument by
raising it below, he also frames the issue as second-prong plain error. The State denies that
defendant preserved his argument, but the State addresses the substance of the issue pursuant to
the plain-error doctrine. The State argues that there was no one act, one crime violation.
¶ 75 We need not decide whether defendant’s argument is preserved. Case law is clear that one
act, one crime issues are reviewable pursuant to the second prong of the plain-error doctrine, so
we must address the merits of defendant’s claim anyway. See People v. Coats, 2018 IL 121926,
¶ 10. Our review is de novo. Stull, 2014 IL App (4th) 120704, ¶ 43.
¶ 76 Traditionally, the one act, one crime analysis involves two steps. The first step is to
“determine whether the defendant’s conduct involved multiple acts or a single act.” People v.
Miller, 238 Ill. 2d 161, 165 (2010). An “act” for these purposes is “ ‘any overt or outward
manifestation which will support a different offense.’ ” Miller, 238 Ill. 2d at 165 (quoting People
v. King, 66 Ill. 2d 551, 566 (1977)). “Multiple convictions are improper if they are based on
precisely the same physical act.” Miller, 238 Ill. 2d at 165. For the second step of the analysis, if
the defendant’s conduct involved multiple acts, the court must consider whether the case involves
lesser-included offenses. Miller, 238 Ill. 2d at 165. If so, then it is improper for the defendant to
be convicted of multiple offenses. Miller, 238 Ill. 2d at 165.
¶ 77 We held above that the evidence showed two distinct acts of “sexual penetration”—one act
relating to the contact between defendant’s penis and L.S.’s sex organ, and a second act relating
to defendant inserting his penis into L.S.’s vagina. In situations involving multiple acts occurring
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2021 IL App (2d) 200759-Uin a short time span, defendants frequently argue that the State failed to differentiate between those
acts when prosecuting the case. See, e.g., Stull, 2014 IL App (4th) 120704, ¶ 45. Here, however,
defendant does not specifically raise that argument, and the State made it clear to the jury during
closing argument that it was alleging multiple distinct acts of “sexual penetration.” Additionally,
there is no issue of lesser-included offenses here, as counts II and III of the indictment both alleged
the offense of criminal sexual assault. Accordingly, defendant’s one act, one crime argument fails
under the traditional analysis.
¶ 78 Defendant relies on People v. Strawbridge, 404 Ill. App. 3d 460 (2010). In Strawbridge,
the defendant was convicted of multiple counts of predatory criminal sexual assault of a child.
Strawbridge, 404 Ill. App. 3d at 461. Counts I and II of the indictment both alleged that the
defendant placed his penis in the victim’s vagina. Strawbridge, 404 Ill. App. 3d at 462. Count I
alleged that such conduct occurred between June 24, 1999, and March 20, 2000, whereas count II
alleged that such conduct occurred on or about March 20, 2000. Strawbridge, 404 Ill. App. 3d at
462. We vacated one of the defendant’s convictions pursuant to the one act, one crime doctrine.
We reasoned that it was “impossible to determine whether the jury found that there was one
instance of penile to vaginal contact and yet found defendant guilty with regard to both counts
because that instance of conduct took place between June 24, 1999, and March 20, 2000, but also
happened to occur on or about March 20, 2000, or if it determined that there were multiple
instances of such conduct.” Strawbridge, 404 Ill. App. 3d at 463. In so holding, we noted that the
victim “testified to an act of intercourse occurring on March 17, 2000, which is within the time
periods described in both counts.” Strawbridge, 404 Ill. App. 3d at 463.
¶ 79 Strawbridge is distinguishable, as it involved an ambiguity caused by overlapping time
periods outlined in the charging instrument. There was no similar ambiguity here, given the State’s
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2021 IL App (2d) 200759-Uexplanation to the jury that the various counts related to distinct acts of “sexual penetration.”
Defendant speculates that the jury may have believed that he committed only one act of “sexual
penetration”—by inserting his penis into L.S.’s vagina as alleged in count III—yet also convicted
him on count II because such conduct inherently involved contact between defendant’s penis and
L.S.’s sex organ. We have no reason to believe that the jury ignored the State’s explanation that
different counts related to distinct acts. Accordingly, unlike in Strawbridge, it is not “impossible
to determine” whether the jury found two acts of “sexual penetration” instead of one.
¶ 80 III. CONCLUSION
¶ 81 For the reasons stated, we affirm the judgment of the circuit court of Winnebago County.
¶ 82 Affirmed.
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