from the Circuit Court of McLean County No. 17JD78 Honorable
J. Brian Goldrick, Judge Presiding.
Attorneys for Appellant: James E. Chadd, John M. McCarthy,
and Salome Kiwara-Wilson, of State Appellate Defender's
Office, of Springfield, for appellant.
Attorneys for Appellee: 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.
JUSTICE STEIGMANN delivered the judgment of the court, with
opinion. Presiding Justice Holder White and Justice Turner
concurred in the judgment and opinion.
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, 464 N.E.2d 1045 (1984). In
re T.R., 2019 IL App (4th) 190051, ¶ 48, 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 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
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
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 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
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
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 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
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
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 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 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
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 act of sexual penetration
occurred because (1) the DNA profile from the "male
component" of the "sperm fraction sample"
matched respondent and (2) that sample came from the vaginal
swab of I.P.-V.
44 Respondent highlighted the inconsistencies in the
testimony and pointed out that no one heard any yelling,
despite testimony that sound carries easily throughout the
apartment. Regarding the DNA evidence, respondent's
counsel argued as follows:
"I agreed to the stipulation basically for the language,
one reason only. The State has made mention of sperm
fractions. Sperm fractions that are mentioned on page 2 of 3
of the Bode Cellmark report. *** Now the only reason I agreed
to even enter that is in Note Number 3, also on page 2 of 3,
that note reads: Any reference to body fluids in evidence
descriptions are based on the written descriptions of the
samples by the submitting agency, which mean, basically, that
when they say its sperm fluid, that's because they are
being told by someone it's sperm. That isn't
necessarily the case. DNA test talks about DNA. What the
results the Court can conclude is, there was some of
[respondent's] DNA in the vaginal swab, but you can't
necessarily conclude it was sperm. It could come from saliva,
if there was oral sex, or from epithelial DNA, skin, if, as
there was what [respondent] indicated, fingering ...