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People v. Guerrero

Court of Appeals of Illinois, Second District

June 26, 2018

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
MARCIAL GUERRERO, Defendant-Appellant.

          Appeal from the Circuit Court of Kendall County. No. 06-CF-146 Honorable Timothy J. McCann, Judge, Presiding.

          JUSTICE BIRKETT delivered the judgment of the court, with opinion. Justice Jorgensen specially concurred, with opinion. Justice Hutchinson concurred in part and dissented in part, with opinion.

          OPINION

          BIRKETT, JUSTICE

         ¶ 1 This is the third appeal brought by defendant, Marcial Guerrero. In 2006, he was charged by indictment with three counts of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2004)). All three counts alleged that he sexually penetrated the victim. The first count was based on contact between defendant's penis and the victim's mouth, the second count was based on defendant's placing his finger into the victim's vagina, and the third count was based on contact between defendant's penis and the victim's anus. Following a jury trial in 2007, defendant was convicted of all three counts and sentenced to three consecutive terms of 25 years' imprisonment. Defendant raised several issues on direct appeal, none of which involved the sufficiency of the evidence, and we affirmed his conviction and sentence. People v. Guerrero, No. 2-07-1183 (2010) (unpublished order under Illinois Supreme Court Rule 23) (Guerrero I).

         ¶ 2 Thereafter, defendant filed a petition for postconviction relief pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2010)). The trial court summarily dismissed the petition and defendant appealed, arguing that his appellate counsel was ineffective on direct appeal for failing to challenge the sufficiency of the evidence with respect to the second count in the indictment. Specifically, defendant argued that there was nothing at trial to indicate that his finger ever intruded into the victim's vagina. We held that defendant's petition stated the gist of a constitutional claim, and, accordingly, we reversed the trial court's summary dismissal and remanded the matter for further proceedings. People v. Guerrero, 2013 IL App (2d) 111161-U (Guerrero II).

         ¶ 3 On remand, defendant's appointed postconviction counsel filed an amended petition and a second amended petition. Among the numerous issues raised in the second amended petition was the claim at the center of our holding in Guerrero II. However, the trial court granted the State's motion to dismiss the second amended petition, and defendant now appeals. As was the case in Guerrero II, defendant's sole contention in this appeal is that his appellate counsel was ineffective on direct appeal for failing to argue that the evidence at trial was insufficient to sustain a conviction on the second count in the indictment.

         ¶ 4 As we will explain, defendant has made a substantial showing of a constitutional violation, and we therefore reverse the trial court's dismissal of his second amended postconviction petition. However, the parties also dispute the relief that should be granted under these circumstances. We will address that issue following our discussion on the merits.

         ¶ 5 I. BACKGROUND

         ¶ 6 Before discussing the evidence adduced during defendant's trial, we first provide a brief overview of the legal issue that forms the basis of this appeal. To sustain defendant's convictions of predatory criminal sexual assault of a child, the State was generally required to prove that defendant committed acts of "sexual penetration" with the victim. 720 ILCS 5/12-14.1(a)(1) (West 2004). At the time of the alleged acts, "sexual penetration" was defined as follows:

" 'Sexual penetration' means any contact, however slight, between the sex organ or anus of one person by an object, 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. Evidence of emission of semen is not required to prove sexual penetration." 720 ILCS 5/12-12(f) (West 2004).

         ¶ 7 In People v. Maggette, 195 Ill.2d 336, 346-47 (2001), our supreme court noted that this definition of "sexual penetration" defines "two broad categories of conduct." First, the "contact" clause describes any contact with the sex organ or anus of one person by an object, the sex organ, mouth, or anus of another person. Second, the "intrusion" clause describes any intrusion of any part of the body of one person or of any animal or object into the sex organ or anus of another person. Id. at 347. The court determined that, as used in the intrusion clause, the word "object" was limited to "inanimate objects." Id. Hence, under principles of statutory construction, the word "object" in the contact clause was not intended to include parts of the body. Id. at 349-50.

         ¶ 8 Applying Maggette to the second count in this case, the State could not sustain a conviction based on evidence that defendant's finger merely came in contact with the victim's vagina. Rather, the State was required to prove that there was an intrusion, however slight, of defendant's finger into the victim's vagina. See 720 ILCS 5/12-12(f) (West 2004). With this in mind, we now turn to the evidence at defendant's trial.

         ¶ 9 A. Trial

         ¶ 10 The victim, P.G., was 11 years old at the time of the alleged criminal acts. Because she did not make her initial outcry until she was 13 years old, the State was unable to introduce her out-of-court statements at trial. See 725 ILCS 5/115-10(b)(3) (West 2006). P.G. was 15 years old at the time of trial. She was the State's first witness. Her testimony was conducted via a closed-circuit television system.

         ¶ 11 On direct examination, P.G. testified that her mother began dating defendant in January 2003. Shortly thereafter, defendant moved into an apartment shared by P.G. and her mother, along with P.G.'s younger sister and infant brother. P.G. described a pattern of conduct by defendant that took place over the course of approximately one month. According to P.G., when her mother was at work during the night, defendant would bring her into her mother's bedroom, remove her clothes, and begin touching her. When P.G. was asked to describe the first time that this happened, the following exchange took place:

"A. He-he put his thing-he put his d***-no, he put his d*** like by my-I don't know how to say it, but like he put it towards like the butt hole and everything.
[MR. REIDY (PROSECUTOR)]: That was the first time you were with him?
A. Yeah.
Q. So we're clear what we're talking about, what body part are you referring to?
A. The boobs. He touched the boobs. And my vagina.
Q. Let's slow down 'cause I know it's taken-
A. Yeah.
Q. Let's take a deep breath. The first time your clothes were off, what, if anything, did he-did [defendant] do to you to start off with? You said he touched where?
A. My boobs. He started going down to the vagina.
Q. Where on your vagina did he touch you?
A. Like by the crack.
MR. REIDY: If the record could reflect she's indicated in between her fingers, it would be I guess the crevice or the crack of the fingers.
THE COURT: Yes, record may so reflect.
[MR. REIDY]: With what did he touch you there?
A. With his hands.
Q. How did that make you feel?
A. I thought he would do nothing like that, nothing like that."

         ¶ 12 The prosecutor asked P.G. how many times defendant's hand came "in contact" with her "vagina and crack," and she answered that this happened approximately 10 times. P.G. added that defendant placed his penis near her anus on at least three occasions, that he forced her to perform oral sex on him approximately five times, and that his penis came in contact with her vagina approximately two times. P.G. was also asked whether defendant did "anything else of a sexual nature with [her] other than sucking-having [her] suck his d***, penis against your butt hole." She answered, "I don't think so." When P.G. was asked whether defendant was able to "go inside" her vagina with his penis, she answered, "No. I screamed."

         ¶ 13 On cross-examination, when P.G. was asked whether defendant did anything other than use his hand to touch her breasts and vagina on the first night, she responded, "I think that's it. I don't remember." Defense counsel pressed the issue, referencing a statement that P.G. had purportedly made to investigators before the trial. The exchange went as follows:

"[MS. CHUFO (DEFENSE COUNSEL)]: That was it? When you were interviewed by those two men that came to your apartment, isn't it true that you told them that he also put his fingers in your vagina that first night?
A. They were closed, yeah. Yeah.
Q. When you say they were closed-
A. Like this, like by the crack.
Q. Isn't it true that you said that his fingers went in a little bit?
A. No. That was like another night, he put his d*** almost in my vagina-or he tried to, but I screamed."

         ¶ 14 On redirect examination, the prosecutor did not question P.G. as to any ...


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