Appeal from the Circuit Court of Cook County Honorable Mary Maxwell Thomas, Judge Presiding.
The opinion of the court was delivered by: Justice Gallagher
Following a jury trial, defendant Briscoe Watson was convicted of aggravated criminal sexual assault and aggravated kidnaping and was sentenced to 10 years in prison for each offense, with those terms to be served concurrently. On appeal, defendant contends that in closing argument, the prosecution made several prejudicial statements that denied him the right to a fair trial. Defendant also asserts that an omission in the jury instruction that listed the elements of aggravated criminal sexual assault constituted reversible error. For all of the reasons that follow, we affirm defendant's convictions. In addition, we vacate defendant's concurrent sentences and remand this case to the trial court for the imposition of consecutive sentences.
Defendant was convicted on an accountability theory of the aggravated criminal sexual assault of L.E. The State presented testimony that on December 2, 1998, defendant and Lawrence McIntosh threatened L.E. with a gun and forcibly took her to defendant's apartment. There, McIntosh sexually assaulted L.E. while defendant watched. *fn1
At trial, the jury heard the following relevant testimony. L.E. testified that on the date of the offense, she was 14 years old and had known defendant and McIntosh for a couple of months but was not dating either of them. Defendant called her and asked if she wanted to get something to eat. Defendant sent McIntosh to pick up L.E. at her mother's house.
McIntosh bought food for L.E. and took her to defendant's apartment building. L.E. said she then asked to be taken home, but McIntosh tried to pull her out of the car and "asked [her] to go upstairs." As McIntosh pulled L.E. out of the car, defendant arrived in his car. Defendant approached L.E. and McIntosh and was holding a gun. Defendant told L.E. that if she did not get out of the car, he would shoot her. McIntosh told L.E. to "get the f- out of the car" and pulled her up the stairs and into defendant's apartment. Defendant held the apartment door open as they entered and locked the door behind them.
McIntosh pulled L.E. into a bedroom, pushed her onto a bed, forced her to undress and raped her. During this time, L.E. heard defendant laughing. L.E. testified that defendant was standing near the bedroom door and that McIntosh had thrown her pants on the bedroom floor about two feet from the door. Forensic testimony established that a semen stain on L.E.'s pants matched defendant's DNA profile and that her underwear contained a semen stain that did not match defendant's or McIntosh's DNA profile.
On appeal, defendant first contends that the prosecution made several remarks in closing argument that prejudiced his right to a fair trial: (1) stating that defendant was "pleasuring himself" during the assault; (2) mentioning a third DNA profile as to the semen stains on L.E.'s underwear; and (3) suggesting that defendant tried to "camouflage" the proceedings.
Initially, we note that although defendant made contemporaneous objections to those comments, he failed to raise the issues in his posttrial motion, thus forfeiting the issues for purposes of our review. See People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130 (1988); People v. Williams, 313 Ill. App. 3d 849, 863, 730 N.E.2d 561, 573 (2000). This court can consider forfeited issues under the plain error doctrine when the evidence is closely balanced and the remarks are so prejudicial as to deny the defendant a fair trial. Williams, 313 Ill. App. 3d at 863, 730 N.E.2d at 573. However, we do not find either circumstance applies here. The comments in this case were not improper and do not constitute reversible error.
A prosecutor is allowed a great deal of latitude in closing argument, and he or she may speak unfavorably of the accused, comment on the evidence presented and make reasonable inferences arising therefrom, even if those inferences are unfavorable to the defendant. People v. Bennett, 304 Ill. App. 3d 69, 71-72, 710 N.E.2d 445, 447 (1999); People v. Rush, 294 Ill. App. 3d 334, 340-41, 689 N.E.2d 669, 674 (1998). Regarding the prosecutor's assertion that defendant was "pleasuring himself" during McIntosh's assault of L.E., that statement was supported by testimony that a semen stain matching defendant's DNA profile was found on L.E.'s pants. The prosecutor's remark is also consistent with L.E.'s testimony that defendant was standing near the bedroom door laughing during the assault and that her pants were about two feet from the doorway. Given that testimony, we find that the prosecutor's comment was supported by the evidence. Moreover, despite defendant's assertion that the prosecutor's remark was "material to his conviction," whether or not defendant engaged in such activity would not have been a decisive factor in his conviction because he was charged with L.E.'s sexual assault on an accountability theory based on the actions of McIntosh.
Turning to the two other statements of which defendant complains, each of those remarks was made in the State's rebuttal to defense counsel's closing argument. In reviewing allegations of prosecutorial misconduct, the closing arguments of both parties must be examined in their entirety and the remarks made must be placed in their proper context. Rush, 294 Ill. App. 3d at 340, 689 N.E.2d at 674. In closing argument, defendant's counsel referred to testimony that L.E.'s underwear contained a semen stain that did not match the DNA profile of defendant or McIntosh. Defendant's attorney called the jury's attention to the source of that semen, stating:
"Who put it there? How did it get there? Under what circumstances? Did it relate to this situation or event, which [L.E.] now complains of? Is there somebody whose identity she perhaps does not wish to disclose?"
In addition, defendant's attorney referred to those queries as "important, unanswered questions" that the jury should consider and answer.
Defendant now contends that the prosecutor misstated the evidence by remarking in rebuttal closing argument that the "third [DNA] profile, the semen in those panties, as the court instructed you, is not at issue." Where the complained-of comments are part of a prosecutor's rebuttal argument, the statements will not be deemed improper if they were invited by defense counsel's closing argument. Williams, 313 Ill. App. 3d at 863, 730 N.E.2d at 573. Considering the remarks in their entirety, we find ...