Appeal from Circuit Court of Ford County No. 11CF62 Honorable Stephen R. Pacey, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Steigmann
4th District Appellate Court, IL
PRESIDING JUSTICE STEIGMANN delivered the judgment of the court, with opinion.
Justices Appleton and Pope concurred in the judgment and opinion.
¶ 1 In October 2011, a jury convicted defendant, Edgar D. Hubner, Sr., of criminal sexual assault (720 ILCS 5/11-1.20(a)(1) (West 2010)), and the trial court later sentenced him to four years in prison. Defendant appeals, arguing that the State's emphasis in closing argument on defendant's "alleged apologies" as demonstrating "evidence of a guilty man" deprived him of a fair trial and (2) the court erred by not conducting a hearing before ordering defendant to pay $250 in reimbursement for his court-appointed counsel. We reject defendant's first argument and affirm his conviction and sentence; however, because we agree with his second argument, we vacate the reimbursement order, and remand to the court with directions that it conduct a proper hearing.
¶ 3 In July 2011, the State charged defendant with criminal sexual assault, alleging that he committed an act of sexual penetration with T.B. in that by the use of force he placed his finger in her vagina. 720 ILCS 5/11-1.20(a)(1) (West 2010). At defendant's October 2011 jury trial, T.B. testified that she was 15 years old and an acquaintance of defendant's son, Eddy. On July 12, 2011, at about 9 p.m., T.B. and Eddy arrived at his father's apartment to watch movies. T.B. knew defendant very well from being friends with his sons, Nate and Eddy. T.B. later decided that she did not want to walk home because it was late, so she contacted her family for permission to stay the night, which she received. Around midnight, she fell asleep on an air mattress.
¶ 4 Around 3 a.m., T.B. awakened and saw defendant sitting in the same room, eating and drinking. She went back to sleep and woke up around 5 a.m. when Eddy's mother (who lived apart from defendant) called Eddy to go to her residence to baby-sit. T.B. heard the call and then went back to sleep. After Eddy left, only defendant and she remained in defendant's apartment.
¶ 5 T.B. next awakened to discover defendant grabbing her shorts. She was scared and rolled away from him, but he pulled her back. Defendant then went under her blanket, grabbed her shorts, and started pulling them down. She tried to pull her shorts up and told defendant to stop. After telling him to stop three or four times, he said, "Fine, I hear ya," and stopped. Then, within seconds, defendant stuck his hand inside T.B.'s shorts and underwear and placed his finger in her vagina. At that moment, Eddy walked in the apartment, and the defendant jumped up and away from T.B.
¶ 6 T.B. retrieved her belongings and left the apartment. When T.B. returned home, she told her older sister what had happened and told her mother, Tawny Britz, after Britz returned home from work. Britz told T.B. that calling the police was the right thing to do, but T.B. was scared to do so because "something like this had never happened to her before."
¶ 7 T.B. and Britz went to defendant's apartment that same afternoon, and Britz asked defendant about what had happened with T.B. that morning. According to T.B., defendant responded that "he doesn't remember, that he was drunk, and that he was sorry. And I remember him looking at me and telling me that he is sorry and deserves worse, and he [']deserves to go to jail,['] exact words."
¶ 8 Later that day, T.B. and Britz spoke to Officer Chad Johnson of the Paxton police department about defendant's behavior with T.B.
¶ 9 On cross-examination, T.B. first stated that she could not really remember whether Britz had made a specific allegation about what defendant had done to T.B., but then she was asked the following: "So you don't remember if your mother ever said anything to him about digitally penetrating you or anything like that?" T.B. responded, "She did, but he said [']I don't remember.['] "
¶ 10 Tawny Britz testified that T.B. told her what had happened with defendant after Britz got home from work. Britz went with T.B. to defendant's house to confront him. Britz was very angry with defendant and was screaming at him. Britz testified that defendant apologized numerous times, saying, " [']I am sorry. I was drunk. I didn't know what I was doing, and I don't remember anything.['] "
¶ 11 Britz testified that she got tired of listening to defendant and then slapped him as hard as she could across the face. T.B. then jumped up and started screaming at her, "Mom, don't do this. You are going to go to jail." Defendant then said to T.B., " [']No, don't ...