from the Circuit Court of Saline County. No. 11-CF-176
Honorable Todd D. Lambert, Judge, presiding.
Attorneys Michael J. Pelletier, State Appellate Defender,
Thomas A. Lilien, Deputy for Defender, Kim M. DeWitt,
Assistant Appellate Defender, Josette Skelnik, Appellant
Supervisor, Office of the State Appellate Defender, Second
Judicial District, One Douglas Avenue, Second Floor, Elgin,
Attorneys for Appellee Michael Henshaw, Saline County
State's Attorney, Saline County for Courthouse,
Harrisburg, IL 62946; Patrick Delfino, Director, David J.
Appellee Robinson, Deputy Director, Luke McNeill, Staff
Attorney, State's Attorneys Appellate Prosecutor, 725
South Second Street, Springfield, IL 62704
JUSTICE CATES delivered the judgment of the court, with
opinion. Justices Goldenhersh and Overstreet [*] concurred in the
judgment and opinion.
1 Defendant, James R. Branch, was convicted after a jury
trial of three counts of predatory criminal sexual assault of
a child and was sentenced by the circuit court of Saline
County to 15 years' imprisonment on each count, to be
served consecutively. Defendant argues on appeal that the
State failed to prove him guilty of one count of predatory
criminal sexual assault in that there was no evidence of
digital penetration. He also asserts he was denied a fair
trial because of prosecutorial misconduct and ineffective
assistance of counsel. He further contends he is entitled to
a Krankel hearing because he alleged in his prepared
statement in allocution that he was denied effective
assistance of trial counsel, but the court made no inquiry
into the allegations. See People v. Krankel, 102
Ill.2d 181, 464 N.E.2d 1045 (1984). As a supplemental
argument, defendant argues the court erred in failing to
suppress a statement he allegedly made to a detective upon
being advised he was under arrest. We affirm in part and
remand in part.
2 Between the dates of May 1, 2010, and May 4, 2011, L.M.D.,
the victim, was allegedly subjected to various sexual acts in
a trailer, where defendant resided. At the time of the
alleged incidents, L.M.D. was seven or eight years old.
Defendant was ultimately charged with one count of performing
an act of cunnilingus upon the victim, one count of placing
his finger in her vagina, and one count of having the victim
perform an act of fellatio on him.
3 On May 4, 2011, L.M.D. was removed from her parents'
home because of the parents' drug usage and because they
were allowing a family member who was a registered sex
offender to live in their home. DCFS placed L.M.D. in the
home of a woman named Cheryl, who had previously lived with
L.M.D.'s father for 18 years but had never married him.
Cheryl and L.M.D.'s father had a son, the victim's
stepbrother, who was then 27 years old. Because of
Cheryl's long-term relationship with the family, she had
known L.M.D. since she was a baby. At the time L.M.D. was
placed with Cheryl, she was married to another individual and
had two daughters close in age to L.M.D.
4 A couple of weeks after L.M.D. was placed with Cheryl,
L.M.D. was taking a bath with one of Cheryl's daughters.
L.M.D. told Cheryl's daughter that defendant made L.M.D.
play with him and had rubbed his thing against her. Cheryl
overheard the conversation and stopped it. She then called
L.M.D.'s caseworker. Cheryl reported that subsequent to
Cheryl reporting the statements made by L.M.D., Cheryl also
noticed that L.M.D. started acting out sexually with pillows
and blankets. Prior to L.M.D. being placed in Cheryl's
home, she also testified that she had seen L.M.D. and
defendant around town together. Cheryl further related that
defendant, on several occasions, had previously brought
L.M.D. to Cheryl's house to play with her daughters. At
no time did L.M.D. ever mention any abuse, and she always
seemed fine around defendant. Cheryl stated that defendant
did for L.M.D. what her parents would not, and she agreed
that the living conditions in L.M.D.'s home were
5 After conducting several interviews with L.M.D., Department
of Children and Family Services (DCFS) investigators believed
L.M.D.'s statements were credible and consistent with the
information obtained from Cheryl. L.M.D. testified that
defendant often bought her toys, clothes, shoes, and food. He
would come to her house, and they would ride bicycles to the
park, the pool, fast food restaurants, and Walmart. L.M.D.
further testified that defendant also took her to his
trailer, where they would watch "dirty stuff" on
television. She also related various sex acts he performed on
her, or had her do to him, while they were at his trailer.
She claimed that she told him to stop, but he would not do
so, and that no one else touched her this way. There was no
physical evidence corroborating L.M.D.'s allegations of
6 Defendant denied the allegations against him but admitted
he had taken L.M.D. to various places around town. He
confirmed that he bought things for her because he felt sorry
for her and because he was trying to take care of her. He
related that he had known L.M.D. since she was two years old
and felt somewhat responsible for her. According to
defendant, L.M.D.'s parents did not spend any money on
her and often came to him for food or money. The parents
lived in a trailer near him, and they were the only people he
socialized with other than his own family. He also admitted
to having had a sexual relationship with both parents.
7 The detective and investigator who interviewed defendant
claimed he admitted to having L.M.D. alone at his trailer.
Defendant countered he never made such a statement to them or
to anyone and testified he never took L.M.D. alone to his
trailer, in spite of what others said. Defendant further
claimed L.M.D. could not have watched pornographic movies at
his trailer because he had not had any electricity there
since 2007. He did see L.M.D. watching pornographic movies at
her own home, however, while her parents were present. He had
also seen the sex offender who was living with them go into
L.M.D.'s bedroom and close the door when she was inside
the room. L.M.D., however, told investigators that when the
offender moved in, she had to give up her bedroom to him and
his girlfriend. L.M.D. was then forced to stay in the living
room. Defendant also claimed that he had called DCFS about
the condition in L.M.D.'s home sometime in 2009, but
nothing came of it. The investigator for DCFS had no record
of any such contact from defendant. Defendant continued to
assert he had never sexually assaulted L.M.D., nor had he
done anything inappropriate with any child.
8 The jury chose to believe L.M.D. and returned guilty
verdicts on all three counts. Defendant subsequently was
sentenced to consecutive 15-year terms of imprisonment.
Defendant appeals his conviction claiming several instances
of prosecutorial misconduct and ineffective assistance of
counsel, which denied him a fair trial. He also contends one
count of predatory criminal sexual assault should be reduced
to aggravated criminal sexual abuse because the evidence
failed to prove he digitally penetrated the victim's