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People v. Cross

Court of Appeals of Illinois, First District, Fourth Division

December 26, 2019

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
KERWINN CROSS, Defendant-Appellant.

          Appeal from the Circuit Court of Cook County. No. 13 CR 14110 The Honorable Kenneth J. Wadas Judge, presiding.

          Attorneys for Appellant: James E. Chadd, Patricia Mysza, and Michael H. Orenstein, of State Appellate Defender's Office, of Chicago, for appellant.

          Attorneys for Appellee: Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg and Tasha-Marie Kelly, Assistant State's Attorneys, of counsel), for the People.

          PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion. Justice Burke concurred in the judgment and opinion. Justice Lampkin specially concurred, with opinion.

          OPINION

          GORDON, PRESIDING JUSTICE

         ¶ 1 After a jury trial, defendant Kerwinn Cross was convicted of aggravated criminal sexual assault, aggravated kidnapping, attempted sexual assault, attempted and aggravated criminal sexual abuse and sentenced to a total of 70 years with the Illinois Department of Corrections (IDOC). All the charges concerned one victim, C.C., age 15, and occurred during one night in June 2013.

         ¶ 2 On appeal, defendant raises numerous claims, challenging the grand jury proceedings, the jury trial, and the sentencing. In the case at bar, defendant was allowed to file three opening briefs: one original brief, plus two supplemental briefs. In return, the State was permitted to file a response brief in excess of the normal page limits and a second, additional response brief. Thus, numerous issues were raised. Our opinion addresses each one, in turn.

         ¶ 3 For the following reasons, we vacate defendant's conviction for aggravated criminal sexual abuse because it violates the one act, one crime rule and order the mittimus corrected accordingly. We affirm all his other convictions in this case, but we remand for resentencing for reasons explained below. In addition, we vacate his prior aggravated unlawful use of a weapon (AUUW) conviction, as well as his prior unlawful use of a weapon by a felon (UUWF) conviction, as required by our supreme court's decision in In re N.G., 2018 IL 121939.

         ¶ 4 BACKGROUND

         ¶ 5 While the charges in the case at bar related solely to an assault of C.C. on June 25, 2013, the State also called two witnesses, N.L, age 16, and L.F., age 27, who testified at trial that defendant sexually assaulted them a few days earlier, on June 22, 2013, and June 20, 2013, respectively. None of the three women knew each other, and defendant did not claim that they did. Defendant took the stand in his own defense, admitting that he had sex with all three women but asserting that the sex in all three instances was consensual. Thus, the only issue here was consent.

         ¶ 6 Prior to trial, the State filed a motion to admit evidence of other crimes, namely, that between 2009 and 2013, 10 other women or girls, ranging in age from 13 to 25, had accused defendant of sexual assault or abuse. In seven of these instances, the offense was reported to the police but charges were not filed. The trial court found that the State could not use six of the uncharged offenses in its case-in-chief but that this ruling could change depending on whether defendant testified and what other evidence was presented. The trial court found that the State could use in its case-in-chief the three charged cases and one of the uncharged offenses. At trial, the State presented only two, and the trial court's ruling on this motion is not at issue on appeal.

         ¶ 7 Since the defense argued at trial about the inconsistencies between details of the women's trial testimony and details in their earlier statements, and the State argued about the similarities in the women's experiences, we provide the details of their narratives below.

         ¶ 8 At trial, C.C., the 15-year old victim in the case at bar, testified that, after spending the day at an amusement park in Waukegan with her best friend, her friend's father drove the girls back to Chicago, returning them to her friend's house at around 1 a.m. on June 25, 2013. The next day, June 26, was C.C.'s sixteenth birthday. C.C.'s friend went inside the home, but C.C. walked toward a gas station to purchase snacks, carrying a bag of clothes that she had had with her at the amusement park. C.C. testified that, while she was walking to the gas station, she "got stopped" by a vehicle. A passenger in the vehicle started talking to her, asking her name and introducing himself as "Cool." The passenger, whom C.C. identified as defendant, asked her if she wanted to smoke marijuana. After saying "yes, *** it's my birthday," she entered the back seat of the vehicle, and she and defendant smoked marijuana together and she told him she "was 15 going on 16." The driver, who C.C. described as a black man with a thick beard and a bald head, drove them to a house, where defendant exited the vehicle, returning 5 or 10 minutes later. They drove to a restaurant, and defendant asked her what she wanted to eat. The driver and defendant exited the vehicle, returning with three sandwiches. After eating, they drove to another location, where the driver exited the vehicle and C.C. moved to the front passenger seat and defendant moved to the driver's seat.

         ¶ 9 C.C. testified that defendant drove to his house and parked, inviting her to come inside his house because he was "going to be a minute." Leaving her bag of clothes in the vehicle, C.C. exited and walked toward the house with him. C.C. left her bag in the vehicle because "the whole plan with him" was "we smoke, and he drop me back off." However, "something just told" her to ascertain where she was, so she counted six houses from the corner and they entered the sixth house. As they entered the back door of his house, C.C. heard dogs in the house. After heading up the stairs, defendant told her to go to the room on the left, which was his bedroom. They sat on the bed, talking for a while, when defendant suddenly asked if she had "ever been f*** in the a***." She felt uncomfortable and did not "want to do anything with him [like] that," so she told him no and that she had her period. Then they talked some more, and when she was talking, he said "shut up, b***" and started choking her, with his hands around her neck, and she had trouble breathing. Then he started smacking her around and trying to flip her over, but she resisted that. Defendant ripped off her pants and underwear, while she screamed for help.

         ¶ 10 C.C. testified that he removed her tampon, placed it on a window ledge and forced his penis into her vagina, while placing his lips all over her face. Defendant then put "his finger on [her] bootie hole," and tried to put his penis in her anus but she fought that off. C.C. testified: "I just went crazy, and I was fighting back, flipped him over the bed, and I bit his fingers." While he was trying to anally rape her, defendant said "say yes to daddy." After she bit his fingers, he took out a knife that was 6 to 10 inches long and placed it against her back. When the knife was against her back, she vomited. C.C. was screaming, and he told her "shut up, the police [are] coming" and then "we fitting to go." On their way out of the house, C.C. grabbed a red jacket out of his room that was not hers because she was wearing only a shirt and was naked from the waist down. So she wrapped the jacket around her waist.

         ¶ 11 C.C. testified that defendant still had the knife out, and he took her and "put" her in his vehicle. After driving around a few blocks, defendant stopped his vehicle in front of a church and said "get out, b***," while pushing her out of the vehicle. C.C. fell out of the vehicle, landing on the ground and injuring her knee and her foot. Then she jumped back into the vehicle, hit defendant twice, grabbed her bag from the back seat and jumped back out. When asked why she went back into the vehicle for her bag, she explained: "I had only a shirt on. *** I knew I had my life back. *** I had clothes in the bag. So I grabbed my bag so I could put some clothes on." After defendant drove off, she retrieved pants from the bag and put them on.

         ¶ 12 C.C. testified that she observed a man on the street and asked to use his phone because she had just been raped. He called 911, and she spoke with the 911 dispatcher, and then she called her mother. Shortly thereafter, the police and her mother arrived. An ambulance transported her to the hospital, where she told them what happened and they utilized a rape kit, swabbing different parts of her body. After she was released from the hospital, she met Detective Watkins who drove her around to identify the places where she had been. After finding the red jacket in the middle of the street, they were able to backtrack from there and locate defendant's house. With the red jacket were also the clothes that defendant had "ripped off of [her]." Later, on July 3, 2013, she viewed a lineup at the police station and picked out defendant as the person who had raped her. Prior to testifying at trial, C.C. viewed a video surveillance tape that depicted her entering defendant's vehicle, and it was admitted into evidence without objection. C.C. also identified several photos, including photos of her showing "[t]he prints around [her] neck from when he choked" her and the scar on her foot from when he pushed her out of the vehicle, and a photo of defendant from the lineup with wrapping around his hand. Prior to her testimony, she listened to the tape of the 911 call, which was also admitted into evidence and published to the jury without objection. C.C. testified that she did not know N.L.

         ¶ 13 On cross-examination, C.C. explained that she had dropped only the red jacket at the spot where defendant had thrown her out of his vehicle. However, the following morning, found at the same location, were the clothes that he had ripped off of her prior to the rape. On cross, C.C. testified that she was not sure what she grabbed from her bag to put on. She just "threw something on at the time." She put on "bottoms," which could have been a skirt. At the hospital, she handed the clothing that she was wearing to the nurse who inventoried them and C.C. signed the inventory. The inventory listed a beige skirt, a bra, a shirt and a black Adidas jacket. C.C. denied telling the nurse and responding police officer Cassandra Hawthorne that, during the first stop, she and defendant exited the vehicle and entered a building to purchase more marijuana. C.C. testified that, after defendant raped C.C. and she bit his fingers, he exited the bed, but he did not leave the room, which was small. He had the knife when they left the house and entered the vehicle. C.C. denied telling the detective at the hospital that she had told defendant when she first met him that she was having her period.

         ¶ 14 On cross-examination, C.C. testified that, when defendant "was pushing [her] out of his house with the knife," she thought he was going to let her go. She begged him to let her go, and "[h]e said if I let you go, will you not trick on me." She agreed, but he still "put" her in his vehicle. C.C. denied telling the detective that defendant told her to wait by the side door to his house while he walked around to the front door and then opened the side door for her. C.C. thought she heard someone else in defendant's house, but she screamed and no one came.

         ¶ 15 Susan Kwiatkowski, an emergency room nurse with specialized training in treating sexual assault victims, testified that on June 25, 2013, when she arrived for work at 7 a.m., she learned that there was a sexual assault victim waiting to see her. The notes by the triage nurse indicated that C.C. had arrived at the hospital by ambulance at 4:30 a.m. When Kwiatkowski first met her, C.C. was curled up under blankets. C.C. told Kwiatkowski that C.C. met a man named Cool; that she told him it was her birthday; that she entered his vehicle; that they drove to a different location, entered a building there, and smoked marijuana together; that they went to a restaurant and then to his house; that at his house he choked and punched her and made her undress; that he removed her tampon; that she bit his thumb; that he entered her vagina without a condom; that he touched her anus; that she vomited at his house; that he drove her to a church and threw her out; and that she met another man who helped her.

         ¶ 16 Kwiatkowski testified that C.C. told her that the man who helped her also gave her a tissue so she could wipe herself. That action was significant to Kwiatkowski because the tissue could remove evidence. C.C. related that defendant's penis and finger touched her vagina, that his finger touched her anus, and that his lips touched her lips and her neck. C.C. was not sure if defendant ejaculated. Kwiatkowski performed the steps in the sexual assault kit, which included collecting the victim's clothing and swabbing areas that had been touched which included, in this case, C.C.'s neck. The physical exam revealed bleeding in C.C.'s vagina but C.C. indicated that she was on day two or three of her period. Kwiatkowski also observed a scratch on C.C.'s neck that was consistent with being strangled and abrasions on the inside of her foot and on her knee but did not observe any trauma to C.C.'s vagina. Kwiatkowski explained that a sexual assault victim may not experience trauma to the vagina "because mainly the vagina is made to accept a penis." Also, it would "depend on how much force was used."

         ¶ 17 On cross-examination, Kwiatkowski testified that there was no bruising or swelling on her face consistent with being smacked, and no tears in her vagina or anus. Kwiatkowski "assume[d]" that the blood in C.C.'s vagina was from her period.

         ¶ 18 Nathan Rhodes, a paramedic with the Chicago Fire Department, testified that, in response to a dispatch at 4 a.m. on June 25, 2013, he and his partner drove their ambulance to meet C.C. When they arrived, she was "[c]rying hysterically," and she told them she had been raped. When asked why he remembered this patient in particular, Rhodes explained "she was 15, on the corner by herself at 4:00 in the morning, and she was raped the day before her 16th birthday." They transported her to the closest hospital emergency room.

         ¶ 19 Cassandra Hawthorne testified that, on June 25, 2013, she was working as a police officer, in a police uniform, in a marked squad vehicle, without a partner.[1] At 4 a.m., she responded to a 911 call. When Hawthorne arrived, C.C. was already in the back of an ambulance. C.C. appeared "shaken and upset." While in the ambulance, Hawthorne had a brief conversation with C.C. in which C.C. stated that she had been sexually assaulted and identified the street block of the assault. At the hospital, Hawthorne had a longer conversation with C.C. in which C.C. stated that her assailant had a knife and that C.C. bit his finger.

         ¶ 20 On cross-examination, Hawthorne testified that C.C. told her that C.C. had been "put out" of defendant's vehicle, but C.C. did not tell Hawthorne that C.C. reentered the vehicle and hit her assailant. C.C. also related that they had stopped at a location to buy more marijuana. Hawthorne observed in her report that C.C. appeared intoxicated. On redirect, Hawthorne explained that, when she used the word "intoxicated," she was not referring to alcohol.

         ¶ 21 Andre Watkins testified that he was currently retired but that, on June 25, 2013, he was working as a Chicago police detective, when he met C.C. and her mother in the emergency room at 7 a.m. C.C. was "upset" and "crying." Watkins spoke to C.C. for 20 minutes in an examination room until the doctor entered. Then he conducted a second interview lasting an hour and a half. After C.C. was discharged, he drove her around the area, when they observed clothing lying in the street which C.C. identified as hers. From there, they were able to locate the house where she was raped. They also drove to the restaurant and a couple of other locations and took her home. Subsequently, he was able to retrieve video footage of C.C. entering defendant's vehicle. After returning to the police station and speaking with Detective Minter-Edwards, [2] Watkins had a possible suspect in mind and he created a photo array that included defendant. Later that same day, on June 25, 2013, Watkins showed C.C. the photo array, but she was not able to make an identification from it. After defendant was arrested, C.C. viewed a physical lineup on July 3, 2013, and identified defendant as her assailant.

         ¶ 22 On cross-examination, Watkins testified that C.C. told him that, when she first met defendant and the other man, she told them that she was "not on any of that stuff," that she had just met them, that it was her birthday week, that she just wanted to have fun, and that she was "on [her] period." While C.C. had told Watkins that she was thrown from the vehicle at the end of the evening, she did not tell Watkins that she reentered the vehicle and hit defendant twice. C.C. told Watkins that, when she and defendant arrived at his house, defendant told her to wait by the side door and defendant walked around to the front door and then opened the side door for her.

         ¶ 23 The parties stipulated, if called to testify, (1) that Officer Michael Emmett would testify that on June 25, 2013, that he took photographs of C.C. and of clothing located in the street, that he received a criminal sexual assault (CSA) kit from Kwiatkoski, which was sent to the Illinois State Police Crime Lab and that he also received from Kwiatkoski a bag of clothes; (2) that state's attorney investigator Mary Ember would testify that she obtained a buccal swab from defendant, which was then sent to the Illinois State Police for testing; and (3) that Ronald Tomek, a forensic scientist with the Illinois State Police, would testify that he found no semen on the samples in C.C.'s CSA kit but he found saliva on the swab collected from C.C.'s neck.

         ¶ 24 Ryan Paulsen, a forensic scientist with the Illinois State Police, testified that "[t]he human male DNA profile identified in the neck swab matches the DNA profile" of defendant. There was no cross of Paulsen.

         ¶ 25 The trial court then gave a limiting instruction stating, in relevant part, that the jurors were

"about to hear evidence that the defendant has been involved in an offense other than those charged in the indictment. This evidence will be received on the issue of the defendant's propensity, intent, motive, lack of consent, MO, and common scheme and design, and may be considered by you only for those limited purposes."

         ¶ 26 N.L. testified that she attended school until the tenth grade. On June 22, 2013, she was sixteen years old and in the ninth grade. On that day, N.L. attended her best friend's graduation party, leaving the party on foot at 8:30 p.m. She was walking to the bus stop to head home, when a vehicle made a U-turn. A woman approached and said that her brother wanted to talk to her. The brother exited the vehicle, introducing himself as Star, whom N.L. identified in court as defendant. N.L. asked him to take her home, and he said he would. Defendant sat in the driver's seat, N.L. sat in the front passenger seat, and the woman sat in the back. N.L. told defendant where she lived and how to drive there, but he did not follow her directions. Instead, they parked in front of a house, and the woman told N.L to go in. After the three of them went into the house, N.L sat down on a couch in the living room, and the woman locked the door from the inside with a key. At some point, N.L. learned that the woman, who defendant called Courtney, [3] was not defendant's sister. As far as N.L. knew, they were the only ones in the house. Courtney and defendant walked into a back room and stayed there for 30 or 40 minutes, while N.L. waited for someone to take her home.

         ¶ 27 N.L. testified that Courtney exited the back room wrapped in a white sheet, and N.L. asked if anyone was going to take her home. Courtney told N.L. to ask defendant, so N.L went into the back room and asked defendant to take her home. However, defendant said that she "wasn't going anywhere." N.L. repeated her request, saying "please." Defendant rose and choked her, placing both hands on her neck. She had trouble breathing. Defendant told her that she "was going to make money for them and that he was [her] daddy and [Courtney] was [her] mama." He told her to take her clothes off, and she did because he hit her on her face with his fist. N.L. tried to fight back but he raped her, with his penis entering her vagina. He did not wear a condom, and N.L. did not know if he ejaculated. He tried unsuccessfully to place his penis into her anus.

         ¶ 28 N.L. testified that she started screaming, and defendant called Courtney who entered the bedroom. Defendant told Courtney to slap N.L. to keep her quiet, which Courtney did, on N.L.'s face. Then defendant had anal sex with Courtney and also slapped Courtney on her face. While defendant and Courtney were having sex, N.L. grabbed a bottle from the dresser that defendant had been drinking from and hit defendant on the head. In response, defendant held N.L. down and told Courtney to start slapping N.L. again, which Courtney did, on N.L.'s face.

         ¶ 29 N.L. testified that, at some point toward morning, defendant fell asleep, and Courtney rose and went to the bathroom. N.L was trying to find a way to leave, but Courtney observed her and took N.L to "her kid's room." Courtney kissed N.L.'s breasts and vagina. Against N.L.'s will, Courtney performed oral sex on N.L. and forced N.L to do the same to Courtney. Afterwards, N.L. climbed down from the bunk bed, and Courtney said she was going to take N.L. home. When Courtney went into the back bedroom, N.L. observed the keys on the counter, opened the door and left. When N.L. exited the house, she was naked; so she put on a white dress that she had in her bag. After knocking on a neighbor's door and receiving no answer, N.L. ran to a nearby church, entered it, and started crying. A woman in the church asked what was wrong. After N.L. told her, the woman called 911, and N.L. spoke with the 911 operator. The 911 recording was admitted into evidence without objection and played for the jury. In response to the 911 call, the police and an ambulance arrived, and the ambulance transported N.L. to a hospital. After a rape kit was performed and N.L. was discharged from the hospital, Detective Minter-Edwards interviewed her. In court, N.L. identified a photograph of defendant's house. On July 3, 2013, she identified defendant as her assailant from a physical lineup. N.L. did not know C.C.

         ¶ 30 N.L. admitted that, when she met with Detective Edwards, she stated at first that, when defendant exited his vehicle, he struck her in the face and put her in his vehicle against her will, and that she woke up naked in his bed in an unfamiliar house with no idea of how she had arrived there. However, Detective Edwards confronted her about that part of her statement, and N.L. admitted that part was not true. N.L. stated next that she accepted the ride because she was drunk and she passed out in the vehicle, which was also not true. A few weeks prior to trial, N.L met with the assistant state's attorney (ASA) and provided an entry from N.L.'s journal which stated that N.L. was sober and entered the vehicle willingly. There was no cross-examination.

         ¶ 31 Detective Lorne Gushiniere, with the Chicago police, testified that on July 3, 2013, he arrested Courtney and defendant, who indicated he was then 28 years old.

         ¶ 32 After the trial court provided a limiting instruction, L.F., another other-crimes witness, testified regarding defendant's sexual assault of her on June 20, 2013, five days prior to the assault on C.C. At trial, which was in November 2015, L.F. was 29 years old. She had left school during her sophomore year of high school and was currently working in the "[f]ood industry" and was on probation for burglary. At 6 a.m. on June 20, 2013, L.F. was working as a kitchen manager at a college, and her shift began. At 8 a.m., she had a dispute with her employer and quit. L.F. began walking home, which was three miles away, because she did not have another option. L.F. testified: "I was angry. I didn't feel good at all. I had to walk home. I hadn't slept. I was crying. It was hot." On her way home, she entered a restaurant that was near a gas station, and defendant approached, introducing himself as Star. After she told him what had happened, he offered her a ride home. Defendant was with a woman named Courtney whom he introduced as his sister. L.F. explained that she accepted the ride because "[i]t made me feel like it was okay to be-to get in the car since-I mean there was another girl there."

         ¶ 33 L.F. testified that defendant drove, Courtney sat in the front passenger seat, and L.F. sat in the back seat behind the driver. Both defendant and Courtney were smoking marijuana and drinking alcohol, but L.F. did not. They drove to two small grocery stores and defendant's mother's house where Courtney exited the vehicle. L.F. then entered the front passenger seat, and defendant drove to his house and parked. When they parked, L.F. asked him to take her home, and he said he "needed to grab something" and then they would go. After they entered his house, defendant locked the door from the inside with a key. No one else was in the house. When L.F. asked him "to get what he was going to get so" they could "get going," defendant replied that she should come to his room because the air conditioning was there and they could "cool off for a bit" before heading out. After they entered the room, he turned on the television, she sat on the bed, and he told her to take her clothes off. She started "[p]anicking." When she did not take her clothes off, he raised his voice and "ripped" off her clothes. Then he took off his clothes and raped her, placing his penis inside her vagina without a condom three separate times. During the rape, he told her that he had "picked" her and to call him "Papi." L.F. speaks Spanish, and she testified that "Papi" means "daddy" in Spanish. While raping her, he "choked" her, "slapped" her face, and "spat" on her. She had trouble breathing. Defendant also tried to place his penis inside her anus, but he did not because she grabbed a liquor bottle off his dresser and attempted to hit him in the head with it. She did not succeed in hitting him on the head.

         ¶ 34 L.F. testified that, after she tried to hit him with the bottle, defendant rose and told her that she could go, that she did not have to do that, and that she could go whenever she wanted. In response, she gathered her things and started to leave, but he would not let her go. He kept bringing her back to the room. When she was able to reach the front door, she realized it was locked and she could not exit. As she was trying to exit the front door, defendant began to hit her with his fists on her head and back. As they were wrestling, he was able to move her toward his room at the back of the house, but they did not make it to his room; so he opened the basement door and pushed her down the stairs. L.F. fell down eight stairs. When he opened the basement door, some "really big dogs" came up the stairs, and defendant told the dogs "to get" her, but they did not. L.F. reached the landing of the stairs, opened the back door, and ran out, "stark naked," to a neighbor's house. After the neighbor called the police, L.F. sat in front of the neighbor's house, waiting for the police, and observed defendant run out of his house and drive away.

         ¶ 35 L.F. testified that the police offered to call an ambulance, but she did not agree to that because she just wanted to go home. A few days later, L.F. was interviewed by Detective Minter-Edwards and her partner Detective Ghoulston.[4] L.F. identified defendant as her assailant from a photo array and identified a photo of his house. On July 3, 2013, she identified defendant from a physical lineup. L.F. did not know either C.C. or N.L.

         ¶ 36 On cross-examination, L.F. denied that defendant fell asleep and woke to find L.F. going through his pants pockets and that is when she hit him with a liquor bottle. When L.F. was at the neighbor's house, L.F. asked for a shirt and the neighbor gave her one. L.F. testified that she told the police officers about the dogs, and she denied that a police officer transported her to a hospital before she refused to be examined. L.F. testified that she told the police that defendant spat on her and that, when defendant parked in front of his house, she asked him to take her home. The first officer who arrived at the neighbor's house went with L.F. back to defendant's house to retrieve her belongings. On redirect, L.F. explained that she wanted her belongings because there were bills and pay stubs, with her address and phone number, and she did not want defendant to be able to find her again.

         ¶ 37 After the State rested and the trial court denied defendant's motion for a directed verdict, the defense case proceeded first by stipulation. The parties stipulated that if Detective Minter-Edwards was called to testify, she would testify that she interviewed L.F. about the incident on June 20, 2013, and made a report about it and that her report did not state (1) that L.F. asked defendant to take her home when they were parked in front of his house, (2) that defendant spat on L.F., or (3) that defendant ordered his dogs to bite L.F.

         ¶ 38 Defendant took the stand in his own defense and testified that he had "a prior unlawful use of a weapon by felon conviction from 2006," which he had pled guilty to. Courtney was the mother of his child and lived with defendant. On June 20, 2013, between 8 a.m. and 9 a.m., defendant met L.F. at a restaurant, when he was ordering food and Courtney was at a gas station across the street. Defendant introduced himself to L.F. and asked how she was doing. L.F. replied that she had just been fired and was walking home. Defendant offered her a ride. In exchange for the ride, he "asked her if she would kick it with [him] for a while and when [they] were done, then [he] would drop her off at home." By "kick it," he meant smoking marijuana and consuming a few drinks. It did not concern him that Courtney was across the street because they had an open sexual relationship, which included three-way sex on occasion.

         ¶ 39 Defendant testified that he and L.F. crossed the street to his vehicle where he introduced Courtney as his sister because he did not want L.F. "to feel uncomfortable." Defendant sat in the driver's seat, Courtney sat in the front passenger seat, and L.F. sat in the back seat. They drove to a liquor store, which he and Courtney entered to buy a pint of tequila because that is what L.F. said she drank. L.F. waited for them in the vehicle. The three of them then drove around "aimlessly," listening to music, drinking tequila and smoking marijuana. Defendant then drove to his mother's house where he parked, and defendant and Courtney exited the vehicle. Defendant told Courtney that he was going to leave her at his mother's house and go home with L.F., who moved from the back seat to the front passenger seat. Defendant told L.F. that he intended to take her to his house and have sex with her, and she agreed. It was not in exchange for anything.

         ¶ 40 Defendant testified that, after he drove to his house, he and L.F. exited the vehicle and entered his house. He locked the door with a key, which he placed on the kitchen counter. Defendant testified that he did not threaten, choke, or hit her and did not spit on her. They went to his room, which is obviously a bedroom, because there is a large bed in it; and they made "small talk." L.F. did not say she wanted to leave. Initially, she did not want to remove her clothes because she said she was sweaty, so defendant offered her a towel to freshen up. Then she removed her clothes, and defendant removed his clothes, and they had both vaginal and oral sex. Each performed oral sex on the other. Defendant ejaculated into her vagina. Afterwards, they watched television and defendant smoked a cigarette. Then they had vaginal sex two more times. L.F. did not say no or struggle or say that she wanted defendant to stop. After the third time, defendant fell asleep and woke to find L.F. going through his pants' pockets. L.F. grabbed a tequila bottle and hit defendant in the head with it, so that he was bleeding. She swung the bottle a second time, hitting defendant in his hand which bled. When defendant rose from the bed, she ran toward the front door, while yelling "I'm sorry, I'm sorry," but the front door was locked. Defendant asked: "why the h*** did you just hit me with a bottle?" After putting on his pants, he retrieved her clothes, threw them toward her, and told her to leave his house. After defendant opened the front door, she took off running without even grabbing her clothes. After L.F. left, he drove to the police station to make a police report. When he returned home, L.F.'s clothes were gone, and he wondered where they went.

         ¶ 41 Defendant testified that he met N.L. on June 23, 2013, at 9 p.m. while he was out driving with Courtney. They observed N.L. walking back and forth, and they thought she was cute and decided to approach her to see if she would have a "three-some" with them. Courtney rolled down her window and said hi, and N.L. approached. Defendant asked how old she was, but an obj ection to N.L.' s answer was sustained. The three of them agreed that defendant would give N.L. $100 if N.L. came home with them and had a three-some with defendant and Courtney. In the vehicle, the three of them drank vodka and smoked marijuana. After driving to defendant's home, the three entered the house and Courtney locked the door and placed the key on the kitchen counter. They sat down in the front room, talking and smoking. Then defendant and N.L. went to his bedroom in the back of the house and had vaginal sex. Defendant did not hit or choke her, and she did not say no or struggle. After defendant and N.L. had been in his bedroom for 15 minutes, Courtney joined them and Courtney and N.L. had sex. Then defendant ejaculated in Courtney's vagina and fell asleep. When he woke up, N.L. was gone and he did not know where N.L. went.

         ¶ 42 Defendant testified that he was with his friend, Cody Freeman, when he met C.C. at 3 a.m. on June 25, 2013. Defendant and Freeman were driving, while C.C. was walking. They stopped their vehicle with the intent of approaching C.C. to offer her money for sex. Observing that both her arms were completely covered in tattoos, defendant assumed she was an adult. Defendant asked her age and learned it was her birthday. After Freeman, who was driving, stopped their vehicle, C.C. approached. Defendant offered her $50 for sex, and she agreed. After C.C. entered the back seat, the three of them drove around, drinking vodka and smoking marijuana, before heading to defendant's mother's house. When they reached his mother's house, all three of them exited the vehicle and entered the house, so that he and C.C. could have sex. But, as they entered, his mother woke up, and so they left, this time heading to a restaurant.

         ¶ 43 Defendant testified that C.C. waited in the vehicle while he and his friend entered the restaurant, and defendant purchased sandwiches for Freeman and C.C. After dropping Freeman off at Freeman's house, defendant drove to his own house, parking five or six houses away. Defendant parked there because there was no spot in front. After he and C.C. walked to his house, he told her to wait by the side door while he entered by the front door and then came around to open the side door for her. After she entered, they walked into his bedroom. C.C. went to the bathroom, and after she returned, they started kissing and having vaginal sex. Defendant did not hit or choke her, and she did not struggle. They both took off C.C.'s clothes, and defendant removed his own clothes. Defendant did not remove a tampon and place it on a windowsill. However, C.C. had told him when she first entered the vehicle that she had her period. Defendant did not ejaculate because she was bleeding heavily, so he asked for oral sex. C.C. agreed but told defendant he had to wash first, so he went to the bathroom and took a shower that lasted 15 minutes. When he reentered the bedroom, C.C. was fully dressed, in a skirt and a black jacket. At no time did he pull a knife. C.C. did not vomit and did not bite him. The two of them walked to his vehicle together so he could obtain change at a gas station in order to give her $50. During the ride, he told her he was going to leave her at the gas station and she could take the subway. When he pulled over, she hit him. He did not hit her back, but he did push her out of the vehicle. When she exited the vehicle, she was dressed in the same skirt and jacket as when she left his house and she was carrying her bag.

         ¶ 44 On cross-examination, defendant testified that he was 28 years old in 2013. He denied ever using the name Cool and denied telling Detective Minter-Edwards on July 3, 2013, that he used the nickname Cool. In 2013, he had two pit-bull mix dogs. When he was arrested on July 3, 2013, his hand was injured and wrapped in an Ace bandage. When defendant first observed C.C., she was on the other side of the street, and from there he did not observe her tattoos. Their conversation before she entered the vehicle was less than 10 seconds. In that brief conversation, he learned that it was her birthday and she wanted to party, and he offered her money. Defendant testified that the surveillance video that showed their initial encounter was not complete, in that it did not show him exiting the vehicle and talking to C.C. They agreed on $50 for a "nut," which is slang for an orgasm. Defendant testified that he had frequented prostitutes about 10 times and that one always agreed on the price first but not necessarily the specific act. As they were driving around, he gave her alcohol and marijuana for free. Then he brought C.C, a prostitute, to his mother's house at 3 a.m. However, when his mother woke up and asked "who was the girl in her house," he told his mother that C.C. was his "friend."

         ¶ 45 Defendant testified that he had been drinking and smoking marijuana so that, when he dropped Freeman off at Freeman's house and took the wheel, he was intoxicated. When he and C.C. arrived at his house, he parked five or six houses away, "[j]ust like [C.C] said." Defendant denied entering the side door, and testified that he did not recall why he asked her to wait by the side door while he went through the front door and let her in through the side door. The front door is locked with a key and a dead bolt. After entering the house by the front door, he locked the front door and removed the key, just as he had done with L.F. With N.L., defendant "assum[ed]" that Courtney had locked the door. After he and C.C. entered his house, they went to his bedroom and were talking. He did not ask her if she had ever been "f***" in the "a***," and they had no conversation about anal sex. C.C. had told him, when she first entered the vehicle, that she had her period, so they had agreed on oral sex for $50. However, after arriving at his house, she went into the bathroom and emerged, and they had vaginal sex because she said that she was "spot bleeding and almost off her period." During sex, she started to bleed heavily, and he was not wearing a condom. Defendant did not recall telling Detective Minter-Edwards that he did not like wearing condoms. When he realized that she was bleeding heavily, he could not ejaculate and asked her to finish with oral sex. She agreed, without asking for more money for two sex acts. Defendant never asked her to call him "daddy." After he took a shower, "she said she had been with me too long, and she was ready to leave" and she wanted her money. Defendant dressed so that he could drive her home. When they were in his vehicle, he drove a short distance to a church and put her out. She reached back in the vehicle, grabbed her bag of clothes, and punched defendant more than twice.

         ¶ 46 Defendant testified that while he told L.F. that Courtney was his sister, he did not say that to N.L. Defendant offered N.L. $100 for a threesome and denied telling Detective Minter-Edwards that he offered N.L. $50. Defendant denied telling N.L. that he was her daddy, denied slapping Courtney, and denied that N.L. hit him with a liquor bottle. It was his opinion with respect to N.L. that nothing bad or unusual happened and that everyone enjoyed themselves and had a good time.

         ¶ 47 Defendant testified that, when he offered L.F. a ride home, he expected something in exchange, which was to party with him. They drank, smoked, and drove around, as he did with C.C. and N.L. As he had with C.C., he stopped at his mother's house. With C.C., they had entered the house. With L.F., he dropped Courtney off. He dropped Courtney off because he had not approached her "with the three-some idea." His plan with L.F. was that "[s]he was going to spend time with [him], and [he] was going to drive her home after [they] kicked it." It was hot, and he asked L.F. back to his house, which has central air. After they entered, he locked the front-door dead bolt and placed the key on the kitchen counter as he "always" does. After L.F. hit him with a bottle, she ran toward the front door, but she could not exit because the door was locked. Defendant denied telling the detectives on July 3, 2013, when he was arrested that he liked to pick up unattractive women because they want attention.

         ¶ 48 On redirect, defendant testified that the injury that he had on his hand when he was arrested was from when L.F. hit him with a bottle.

         ¶ 49 The defense rested, and in rebuttal, the State called Detective Johnnie Minter-Edwards, who testified that she had been employed with the Chicago Police for 23 years, first as a patrol officer and then as a detective. In her work, she has encountered prostitutes both as victims and as offenders. Based on her experience, she had learned "the going rate" for different sex acts. The average price for oral sex was $10 to $20, while vaginal and anal sex cost more. On July 3, 2013, at 8 p.m., she and her partner, Detective Ghoulston, interviewed defendant, and he stated that he paid N.L. $50 to "kick it," and she asked why N.L. was stating that he raped her if he had not. Defendant replied that N.L. might be upset because he struck Courtney during sex. Defendant stated that he had anal sex with L.F., that he did not like to wear a condom, and that he picks up unattractive women because they want attention.

         ¶ 50 The State offered a certified copy of defendant's prior conviction, which was admitted without objection, and rested its rebuttal case. After oral arguments and jury instructions, the jury found defendant guilty on all counts and he was sentenced to a total of 70 years. We discuss his sentencing in more detail below when analyzing the claims that he raises with respect to it.

         ¶ 51 ANALYSIS

         ¶ 52 I. Grand Jury

         ¶ 53 Defendant's first claim is that his indictment for aggravated kidnapping is defective because Detective Watkins's grand jury testimony in support of that offense was false or misleading. Defendant argues that the trial court erred in denying his pretrial motion to vacate the aggravated kidnapping counts on this ground. Defendant's sole basis for claiming that Detective Watkins's grand jury testimony was false is that his testimony allegedly contradicted his subsequent police report.

         ¶ 54 Our supreme court has found that the permissible challenges to a grand jury proceeding are limited. People v. Wright, 2017 IL 119561, ¶ 61. Generally, if the grand jury was legally constituted, a criminal defendant may not challenge the validity of the indictment that it returned. Wright, 2017 IL 119561, ¶ 61. Even when the grand jury is legally constituted, a criminal defendant may still challenge an indictment obtained "through prosecutorial misconduct." Wright, 2017 IL 119561, ¶ 61. To successfully challenge an indictment on this ground, the defendant must show that the misconduct rose "to the level of a deprivation of due process or a miscarriage of justice." Wright, 2017 IL 119561, ¶ 61. A due process violation occurs when the State (1) "deliberately or intentionally misleads the grand jury," (2) "uses known perjured or false testimony," or (3) "presents other deceptive or inaccurate evidence." Wright, 2017 IL 119561, ¶ 62. In the case at bar, defendant claims that the State presented testimony that was (1) false or, at the least, (2) misleading.

         ¶ 55 "To warrant dismissal of the indictment, a defendant must show" that the State's misconduct "prevented the grand jury from returning a meaningful indictment." Wright, 2017 IL 119561, ¶ 62; People v. Oliver, 368 Ill.App.3d 690, 696-97 (2006) (to warrant dismissal, the prejudice must be actual and substantial). "[A] due process violation consisting of prosecutorial misconduct before a grand jury is actually and substantially prejudicial only if without it the grand jury would not have indicted the defendant." Oliver, 368 Ill.App.3d at 696-97.

         ¶ 56 To illustrate the type of misconduct that justifies a dismissal of an indictment, our supreme court discussed the appellate court case of Oliver, 368 Ill.App.3d 690. Wright, 2017 IL 119561, ¶ 63 (discussing the facts of Oliver). In Oliver, a police officer falsely testified before a grand jury that he had personally witnessed the defendant's hand-to-hand narcotics transactions when, in fact, he had not observed the transactions and was relying on another police officer's report. Wright, 2017 IL 119561, ¶ 63 (citing Oliver, 368 Ill.App.3d at 691, 694). The appellate court in Oliver found that that the grand jury would not have found probable cause to indict without the officer's misleading testimony. Oliver, 368 Ill.App.3d at 698-99. As a result, the appellate court's dismissal of the indictment was appropriate because the defendant had "shown that he suffered actual and substantial prejudice due to the officer's testimony." Wright, 2017 IL 119561, ¶ 63 (citing Oliver, 368 Ill.App.3d at 699).

         ¶ 57 To support his claim, defendant relies solely on the grand jury transcript and the officer's written report. When our review is limited to documentary materials, as it is here, then our review is generally de novo. People v. Morrow, 2019 IL App (1st) 161208, ¶ 60; see also People v. Legore, 2013 IL App (2d) 111038, ¶ 23 ("[w]here the facts about what occurred at a grand jury proceeding are undisputed, as in this case, we review de novo" the question of whether the defendant was denied due process). De novo consideration means that we perform the same analysis that a trial judge would perform. Morrow, 2019 IL App (1st) 161208, ¶ 61.

         ¶ 58 Before the grand jury on July 23, 2013, Detective Watkins testified "[y]es," when asked if his investigation revealed that defendant and C.C. went inside defendant's residence; that, while in a bedroom in the residence, defendant, by the use of force, committed acts of sexual penetration on C.C; that C.C. struggled to become free from defendant; that defendant placed a knife to her side; that defendant "then took [C.C] by knife point to a vehicle and [defendant] drove [C.C] away"; and that defendant eventually stopped the vehicle and "kicked [C.C] out of it" and drove away.

         ¶ 59 Three months later, on October 26, 2013, Detective Watkins submitted a nine-page report entitled "A Field Investigation Cleared Closed (Arrest and Prosecution) Report," in which he requested permission to classify the case "as Clear Closed Arrest and Prosecution." In the report, the detective observed that he had conducted an interview with the victim, "which revealed the following" and "was memorialized in essence but not verbatim." The report stated that, after describing the sexual assault, the victim related that she began screaming and throwing up and defendant pulled out a knife and told her," 'To shut up, the police are coming.'" C.C. related that defendant threatened her and forced her out of his house nude, but she was able to grab defendant's red hoodie and wrap it around her because she had nothing else on. C.C. related that she "got into [defendant's] vehicle hoping he would drop her off," and he drove for approximately 15 seconds before stopping the vehicle and telling her," 'B***, get the f*** out.'" C.C. attempted to grab a few of her things, before defendant shoved her out of his vehicle and onto the ground, where she sustained abrasions and cuts to her legs and arms.

         ¶ 60 On appeal, defendant argues that the report states that the victim entered defendant's vehicle because she was hoping that he would drop her off and that this sentence contradicts the detective's grand jury testimony that defendant "took [C.C.] by knife point to a vehicle." The trial court denied his motion calling it mere "semantics."

         ¶ 61 First, defendant is reading the word "because" into a sentence that does not contain this word. The fact that the victim was forced to a vehicle by knife point does not negate the possibility that she also entered the vehicle "hoping he would drop her off," as he did. Thus, from a bare comparison of the two sentences at issue, there is no contradiction.

         ¶ 62 Second, the police report states that it is a summary-that the detective's interview of the victim "was memorialized in essence but not verbatim." Both the grand jury testimony and the police report indicate that defendant threatened the victim with a knife and forced her out of his house and that they entered his vehicle. The fact that the report does not additionally state that defendant continued to threaten the victim with a knife as they entered the vehicle does not mean that the report contradicts the testimony.

         ¶ 63 Third, defendant argues in his brief to this court: "The prosecutor fed Watkins his testimony-all he ever said was 'yes'-and she had to have read his report." However, the report was submitted a full three months after the grand jury testimony occurred.

         ¶ 64 Fourth, the detective based his grand jury testimony upon his investigation, and that investigation included an interview with the victim in which she described the events. The accuracy of his grand jury testimony was later substantiated by the description that she provided at trial. At trial, the victim testified that, while defendant "still" had the knife "out," "[h]e take me [sic] and put me in his car." She testified that she did not "want to go in his car."[5]Similarly, before the grand jury, the detective testified that defendant "took [the victim] by knife point to a vehicle."

         ¶ 65 With respect to subsequent testimony, the facts here are almost the opposite of the factual situation in Oliver that required reversal. In Oliver, testimony at subsequent hearings revealed that the officer's prior grand jury testimony was false, leading the State to admit that the officer had not witnessed the transactions that he had claimed, before the grand jury, to have observed. Oliver, 368 Ill.App.3d at 694. In contrast to Oliver, in the case at bar, the victim's trial testimony substantiated the accuracy of the detective's grand jury testimony.

         ¶ 66 For the foregoing reasons, we can find neither a due process violation nor prejudice.

         ¶ 67 II. Opening Statement

         ¶ 68 Defendant claims that the State undermined the presumption of innocence in several ways, including by referring to him as a rapist in its opening statement.

         ¶ 69 In response, the State argues, first, that defendant forfeited for review the claimed errors in its opening statement by failing to object at trial.

         ¶ 70 To preserve a purported error for consideration by a reviewing court, a defendant must both (1) object to the error at trial and (2) raise the error in a posttrial motion. People v. Sebby, 2017 IL 119445, ¶ 48. "Failure to do either results in forfeiture." Sebby, 2017 IL 119445, ΒΆ 48. Since defendant did not object during the State's opening ...


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