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,
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(unpublished order under Illinois Supreme Court Rule 23)
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
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
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
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
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
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-
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
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
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 ...