Court of Appeals of Illinois, First District, Fourth Division
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
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.
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.
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
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
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
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. 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
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,
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,  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
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. 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
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
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
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.
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, ¶
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
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
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
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."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, ¶ 48. Since defendant
did not object during the State's opening ...