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In re T.R.

Court of Appeals of Illinois, Fourth District

December 24, 2019

IN RE T.R., a Minor.
T.R., Respondent-Appellant). (The People of the State of Illinois, Petitioner-Appellee,

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          Appeal from the Circuit Court of McLean County No. 17JD78 Honorable J. Brian Goldrick, Judge Presiding.

          James E. Chadd, John M. McCarthy, and Salome Kiwara-Wilson, of State Appellate Defender's Office, of Springfield, for appellant.

          Don Knapp, State's Attorney, of Bloomington ( Patrick Delfino, David J. Robinson, and Thomas R. Dodegge, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.



         ¶ 1 In April 2017, the State filed a petition for adjudication of wardship, alleging respondent, T.R. (born April 3, 2001), committed criminal sexual assault (penis to vagina) (720 ILCS 5/11-1.20(a)(1) (West 2016)), criminal sexual abuse (in that he used force to touch the vagina of I.P.-V. (born March 31, 2002)) ( id. § 11-1.50(a)(1)), and criminal sexual abuse (in that he committed an act of sexual penetration with I.P.-V. when she was between the ages of 13 and 17 years old and respondent was less than 5 years older than I.P.-V.) ( id. § 11-1.50(b)). In July 2018, after a bench trial, the trial court adjudicated respondent to be a delinquent minor. In December 2018, the court made respondent a ward of the court, sentenced him to 36 months' probation, and imposed 30 days of detention to be stayed pending completion of probation.

         ¶ 2 On direct appeal, this court concluded that the trial court should have conducted a hearing pursuant to People v. Krankel, 102 Ill.2d 181, 80 Ill.Dec. 62, 464 N.E.2d 1045 (1984). In re T.R., 2019 IL App. (4th) 190051, ¶ 48, 431 Ill.Dec. 624, 127 N.E.3d 1157. We remanded for such a hearing and retained jurisdiction over respondent's remaining claims. Id. ¶ 51.

         ¶ 3 On remand, the trial court conducted a Krankel hearing, inquired into the allegations of ineffective assistance of counsel made by respondent's mother and respondent, and concluded those allegations did not warrant the appointment of new counsel to pursue them further.

         ¶ 4 Respondent appeals, arguing (1) the trial court conducted an inadequate Krankel hearing, (2) the trial court erred by considering evidence not presented at trial, (3) respondent's counsel provided ineffective assistance by stipulating to the introduction of DNA evidence that supported the State's case, (4) the trial court erred by admitting for impeachment purposes testimony regarding statements respondent made during a polygraph examination, and (5) respondent's convictions for criminal sexual abuse should merge with his criminal sexual assault conviction pursuant to the one-act, one-crime doctrine. We agree only with respondent's fifth argument. Accordingly, we vacate respondent's delinquency adjudication for criminal sexual abuse and affirm the trial court's judgment in all other respects.

         ¶ 5 I. BACKGROUND

         ¶ 6 A. The Delinquency Petition

         ¶ 7 In April 2017, the State filed a petition for adjudication of wardship, alleging

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respondent was a delinquent minor and should be made a ward of the court. The petition alleged that in March 2017, respondent committed three sex crimes against I.P.-V.: (1) criminal sexual assault by placing his penis in I.P.-V.'s vagina by the use of force, (2) criminal sexual abuse by knowingly touching I.P.-V.'s vagina for the purpose of sexual gratification through the use of force, and (3) criminal sexual abuse by placing his penis in I.P.-V.'s vagina when she was between the ages of 13 and 17 years old and he was less than five years older than her.

         ¶ 8 B. The Bench Trial

         ¶ 9 1. The State's Case-in-Chief

         ¶ 10 In June 2018, the trial court conducted a bench trial at which I.P.-V. testified that she was then a 16-year-old high school student. In March 2017, when she was 15 years old, I.P.-V. went with her cousin, X.P., to hang out with X.P.'s boyfriend, Devan M., at his house. It was divided into two apartments, one on the main level, and one on the second level. Devan lived on the first level while respondent lived upstairs. I.P.-V. had never been to Devan's house and did not know respondent, although she had seen him at school.

         ¶ 11 Upon arrival, Devan escorted the girls upstairs to respondent's apartment, where I.P.-V. met respondent. They then proceeded to the living room, where the four sat down to hang out and listen to music. I.P.-V. and respondent sat on one couch, and X.P. and Devan sat on another couch. After about 10 or 15 minutes, X.P. and Devan went to respondent's bedroom.

         ¶ 12 I.P.-V. testified that she and respondent continued to talk and respondent began "playing around" and "trying to pull his [penis] out." I.P.-V. told him to stop and moved to the other couch, but respondent followed her. I.P.-V. stated that she was wearing overalls with one strap undone, a sweater, and tights, with a belt over her clothes. I.P.-V. testified that respondent kept playing with her belt and, at some point, she took the belt off.

         ¶ 13 The two then began to fight over her overalls. She tried to keep them on, while he tried to take them off. I.P.-V. stated that at first she thought they were "play fighting," but then it started to get serious. They fell on the floor and continued to fight. I.P.-V. began hitting respondent and telling him to stop, but he picked her up and took her to what I.P.-V. called "[a] pink room." I.P.-V. identified a photograph introduced into evidence as the "pink room" and described it as such because it had pink walls and pink curtains.

         ¶ 14 Respondent dropped her on the bed in the pink room, and the two began fighting over her overalls and tights, with respondent pulling them down, and I.P.-V. pulling them up. I.P.-V. asked respondent if he was going to rape her. Respondent said, "No, but you going to take this dick." I.P.-V. stated that after hearing respondent's answer, she "lost hope" and "gave up." Respondent took off her overalls and tights, flipped her onto her stomach, held her hands down, and put his penis in her vagina.

         ¶ 15 I.P.-V. testified that this lasted about a minute, at which point respondent let her go. I.P.-V. pulled up her pants and went to the bathroom, passing X.P. and Devan on the way. They were still in respondent's bedroom. I.P.-V. stated she was crying in the bathroom, and when X.P. came in, I.P.-V. told X.P. what happened. They then decided to go to I.P.-V.'s godmother's house. Once there, they called the police, and I.P.-V. went to the hospital where staff administered a rape kit.

         ¶ 16 On cross-examination, I.P.-V. stated that X.P. and Devan closed the door to respondent's bedroom after them, but the door to the pink room stayed open. When

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she went to the bathroom, the door to respondent's room was open. I.P.-V. agreed that she and respondent were play fighting at first, "[l]aughing for a minute, but then it got serious." I.P.-V. stated that she was yelling "no" and "stop," but the music was loud. I.P.-V. acknowledged that she and X.P. went back to respondent's apartment shortly after leaving to try to get $10, which she had lost there, but I.P.-V. testified that only X.P. went back upstairs.

         ¶ 17 X.P. testified that in March 2017 she was talking to Devan and went with her cousin, I.P.-V., to hang out at his apartment. Upon arriving, they instead went upstairs to respondent's apartment. X.P. had never been there before and did not know respondent, but X.P. stated that I.P.-V. "seemed to be familiar with him, but not on a personal level." I.P.-V. mentioned she recognized him from school.

         ¶ 18 X.P. testified that the four of them went to the living room to listen to music and two of them sat on each couch. The music was loud, but X.P. stated they were able to have a conversation over the music using "regular voices." X.P. testified that everybody was getting along and "it was just all good vibes." I.P.-V. and respondent were being playful and pushing each other. Respondent would try to put his arm around I.P.-V., and she would push his arm away.

         ¶ 19 X.P. testified that after about 20 to 30 minutes, she and Devan went to a bedroom near the front door. Devan closed the door, and the two turned on the TV. X.P. could still hear music from the living room but not any conversation. After another 20 to 30 minutes, X.P. went to the living room to check on I.P.-V., but she did not see I.P.-V. or respondent. However, X.P. heard "the same kind of like yelling that [I.P.-V.] was doing when we were in the living room, like telling [respondent] to stop and stuff like that." X.P. assumed the yelling was coming from a bedroom off the living room. X.P. returned to Devan but left the door open.

         ¶ 20 About 10 minutes later, X.P. saw I.P.-V. walk by at a fast pace. I.P.-V. was crying, her hair was undone, and she was not wearing her overalls. X.P. went to the bathroom and found I.P.-V. crying and speaking at a fast pace, saying, "He wouldn't stop. He wouldn't stop." The two gathered I.P.-V.'s things and left. As soon as they got downstairs, I.P.-V. realized she was missing $10, so they both returned to respondent's apartment to look for it.

         ¶ 21 On cross-examination, X.P. further described the type of yelling she heard from the bedroom when she went to check on I.P.-V. as follows:

"Q. Okay. You heard some yelling, but you thought it was still playful; is that right?
A. Yes. Like, [I.P.-V.], my cousin, tends to be a loudmouth. So, when we were in the living room and she was talking about, Oh, stop, stop, she was doing it in, you know, like a high voice level. And so, when they went into the room, I was expecting that she was doing the same thing."

         ¶ 22 The State then offered a stipulation between the parties into evidence. The stipulation indicated that Dana Yenko, a DNA analyst with Bode Cellmark Forensics, conducted testing on a sexual assault kit. Yenko prepared a report containing her findings and conclusions, and a copy of that report was attached to and submitted as part of the stipulation. When asked if the stipulation was correct, respondent's counsel stated, "We certainly do have some argument eventually with regard eventually to the results and how those came about. But that— as far as the evidence

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portion, that is correct, the stipulation is there."

         ¶ 23 The report itself indicated that "[t]he DNA profile obtained from the sperm fraction (SF) of [the vaginal swab sample] is consistent with a mixture of two individuals including the victim and one male contributor." The report concluded that the "deduced male component DNA profile matches the DNA profile obtained from [respondent's] sample." Footnote three to the report indicated that "[a]ny reference to body fluids in evidence descriptions are based on the written descriptions of the samples by the submitting agency."

         ¶ 24 2. The Respondent's Case

         ¶ 25 Respondent's mother testified that she lived in the apartment with respondent and his younger sister. She described how sound travels in the apartment. She stated that even with all the TVs on in the house, she often yelled for her daughter from her bedroom in the back, and her daughter would hear and respond from the pink bedroom in the front of the house.

         ¶ 26 Devan testified that he was respondent's cousin and lived in the apartment below respondent. Devan stated he was friends with X.P. and had seen I.P.-V. around the neighborhood, but he was not friends with her. In March 2017, X.P. and I.P.-V. came to Devan's downstairs apartment, and the three of them went upstairs to respondent's apartment because it had more room. The four of them sat down in the living room, two on each couch, and listened to music. Devan testified that I.P.-V. and respondent were flirting, engaging in "friendly banter, like playing around." Devan described their physical interactions as "like, you know, how like kids wrestle[] and like play around."

         ¶ 27 Devan stated that he and X.P. went to respondent's bedroom to talk and watch TV. He stated the door remained open and they were in the bedroom together for about 15 minutes. Neither he nor X.P. left the room. Devan saw I.P.-V., fully clothed, walk past the bedroom door with her hands over her eyes. Devan left the room and asked respondent what happened, while X.P. went to the bathroom to talk to I.P.-V. The girls went downstairs to the front porch but came back upstairs to look for $10 before leaving for good.

         ¶ 28 On cross-examination, Devan conceded that he earlier gave a statement in which he said I.P.-V. was crying when she walked past the bedroom. Devan also recalled that respondent said, "He wasn't feeling [I.P.-V.]" when Devan asked what happened. Respondent indicated I.P.-V. got upset when respondent told her "he wasn't feeling it." On redirect, Devan stated he did not hear any yelling or anyone say "no" or "stop." Devan opined that, based on his familiarity with the apartment, he would have heard if anyone had yelled.

         ¶ 29 Respondent testified that he was alone when Devan, X.P., and I.P.-V. appeared at his door, asking to come in. Respondent recognized I.P.-V. from school but did not know her. He did not recognize X.P. Respondent let them in, and the four went to the living room where they sat as couples on the couches. After talking for a few minutes, someone connected a phone to a portable speaker and began playing music. The group continued to talk, and 10 to 15 minutes later, X.P. and Devan went to respondent's room. Respondent recalled that the door was left open.

         ¶ 30 Respondent testified that while the four of them were sitting in the living room, he and I.P.-V. "were roughhousing, like playing around, like flirting, like kidding each other, and stuff like that, but nothing major." Respondent described the behavior as "playful." After X.P. and Devan

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left, respondent and I.P.-V. continued to "play[] around" and eventually moved to the other couch. According to respondent, I.P.-V. was sitting next to him on his right. The two continued "fighting" and "hitting each other, stuff like that. But then eventually, like she placed her hand on my right thigh." Respondent testified there was no conversation, but I.P.-V. kept saying "I hope you know you are not getting nothing."

         ¶ 31 Respondent stated they continued to flirt and I.P.-V. placed her left hand on his inner right thigh. Respondent reciprocated, placing his right hand on her left thigh. Respondent explained that I.P.-V. kept moving her hand closer to his penis and he moved his hand closer to her vagina. Respondent thought to himself that she was sending "mixed signals." Eventually, I.P.-V. placed her hand down respondent's pants and rubbed his penis. Respondent put his hand down her pants and touched her vagina. Respondent denied placing his fingers inside her vagina. Respondent stated that they touched each other for about five minutes before she took her hand out of his pants, stood up, and went to the bathroom. Respondent denied (1) putting his penis in her vagina, (2) going to the pink room, and (3) having any type of struggle.

         ¶ 32 I.P.-V. came out of the bathroom, and as she passed respondent's room, X.P. and Devan came out of that room. X.P. asked I.P.-V. what was wrong, and Devan asked respondent what happened. Respondent said, "Nothing happened," and that he "really wasn't feeling like her." Respondent then indicated to everyone he was getting ready to leave, and I.P.-V. grabbed her phone, charger, and belt, and the girls left. They came back upstairs about two minutes later to briefly look for $10 that I.P.-V. said she lost.

         ¶ 33 On cross-examination, respondent agreed that the touching was sexual in nature, but he denied that he ever placed his finger inside I.P.-V.'s vagina. Respondent admitted that although he told Devan nothing happened, that statement was not true. Respondent explained that when he said he "wasn't feeling [I.P.-V.]," he meant that he never "felt something with her [emotionally]."

         ¶ 34 Respondent testified that I.P.-V. got up without saying anything and he did not cause her to leave the room. Respondent stated there was no reason for I.P.-V. to be crying or for X.P. or Devan to be concerned about her. Respondent also stated he did not know why X.P. and Devan asked what happened.

         ¶ 35 Respondent denied three times that he made any previous statements in this case. (Apparently, the State was attempting to ask respondent if he had made a prior inconsistent statement.) The State then asked if respondent knew "an individual named Steve Woody," and respondent answered "[t]he polgraphic [ sic ] guy." Respondent's counsel objected, arguing the State was trying to introduce inadmissible polygraph evidence. The State responded that it was simply trying to use statements made during a polygraph examination for purposes of impeachment, which would be admissible. Respondent's counsel then argued that the State's asking impeachment questions would open the door to the introduction of polygraph results. Counsel also claimed the State was not allowed to impeach respondent with polygraph statements. In response, the State maintained (1) it was not trying to offer the results of any polygraph test and (2) admitting the statements to impeach would not open to door to inadmissible polygraph evidence.

         ¶ 36 The trial court agreed that the results of a polygraph are not admissible in Illinois and stated it would not hear

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such testimony or consider such evidence. The court further agreed with the State that any prior inconsistent statements were admissible even if made to a polygraph examiner, and the court ruled that it would permit the State to inquire further. The court made clear it was "not considering any results of polygraph examination. I'm not considering anything with respect to any type of examination that was done or performed."

         ¶ 37 The trial court also stated it would not rule definitively on the issue at that time and would permit respondent to provide case law in support of his position. The court stated it would then strike the testimony if the court agreed with respondent.

         ¶ 38 After further questioning, respondent acknowledged making several statements to Woody, including that he told Woody (1) "nothing sexual happened" between himself and I.P.-V. and (2) he did not know why I.P.-V. was making these allegations. Respondent agreed he did, in fact, touch I.P.-V. sexually, but he denied that his testimony at trial describing what happened was contrary to the statements he made to Woody. Respondent also repeatedly denied touching I.P.-V. with his penis.

         ¶ 39 On redirect, respondent explained that when Woody had asked him "if anything sexually happened," respondent thought Woody was asking specifically about sexual intercourse. Respondent explained that the type of touching testified to at trial was not what he understood Woody to be asking about when they spoke. Finally, respondent described where X.P. and I.P.-V. looked for the missing $10 when they came back up to the apartment and noted that they did not look in the pink room.

         ¶ 40 3. The State's Rebuttal Evidence

         ¶ 41 The State indicated it believed there was one statement respondent denied making about which the State wished to perfect impeachment. The State called Woody and asked if he worked locally. Woody answered, "I do. I'm a polygraph examiner." Woody testified he had had contact with respondent and identified him in court. The State then asked if Woody recalled his contact with respondent, and Woody stated, "Yes, his attorney contacted me, and * * * we had arranged a polygraph exam for [respondent]." The State then asked if Woody wrote a report concerning that contact and if he reviewed the report prior to trial. Woody responded affirmatively to both questions. The State asked Woody if respondent told him that respondent "has no idea why [I.P.-V.] * * * is saying this happened when it didn't," and Woody responded, "That's correct." (We note that Woody's testimony on this point— namely, that respondent had no idea why I.P.-V. accused him of sexual assault— does not appear to be inconsistent with respondent's trial testimony, and therefore would not normally be appropriately elicited. However, neither party has raised this issue on appeal, and the trial court, in its thorough review of the evidence, did not mention the allegedly inconsistent statement at all.)

         ¶ 42 4. Closing Arguments

         ¶ 43 The State argued that I.P.-V.'s story was corroborated by X.P. and Devan because they all agreed that I.P.-V. was crying or upset shortly before leaving. Respondent, meanwhile, testified she was not crying and had no reason to be upset. The State asserted the events made no sense unless I.P.-V. had been assaulted. The State also believed the DNA evidence demonstrated that an ...

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