People v. Foster

• Citation: 2022 IL App (2d) 210556 U
• Decision Date: 27 September 2022
• Docket Number: 2-21-0556
• Parties: THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ORANE R. FOSTER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2022 IL App (2d) 210556-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
ORANE R. FOSTER, Defendant-Appellant.

No. 2-21-0556

Court of Appeals of Illinois, Second District

September 27, 2022

This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Kane County. No. 15-CF-1333 Honorable David Paul Kliment, Judge, Presiding.

JUSTICE JORGENSEN delivered the judgment of the court. Presiding Justice Brennan and Justice Schostok concurred in the judgment.

ORDER

JORGENSEN JUSTICE.

¶ 1 Held: The evidence was sufficient to sustain both of defendant's convictions for aggravated criminal sexual abuse, and the convictions did not violate one-act, one-crime principles. Affirmed.

¶ 2 After a jury trial, defendant, Orane R. Foster, was convicted of two counts of aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(1)(i) (West 2014)) and sentenced to two concurrent three-year terms of imprisonment. Defendant appeals, arguing that (1) the evidence was insufficient to sustain his convictions, and (2) alternatively, one of his convictions should be vacated under the one-act, one-crime doctrine. We affirm.

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¶ 3 I. BACKGROUND

¶ 4 A. First Trial and Direct Appeal

¶ 5 In 2015, defendant was charged with five counts of predatory criminal sexual assault and two counts of aggravated criminal sexual abuse of victim, S.L., in that he touched her sex organ. After a jury trial, defendant was found guilty of four counts of predatory criminal sexual assault of a child under 13 years of age (720 ILCS 5/11-1.40(a)(1) (West 2014)) and two counts of aggravated criminal sexual abuse of a victim under 13 years of age (720 ILCS 5/11-1.60(c)(1)(i) (West 2014)). The trial court sentenced defendant to six years' imprisonment on each of the four counts of predatory criminal sexual assault, to run consecutively, and three years' imprisonment on both counts of aggravated criminal sexual abuse, to run concurrently with each other but consecutively to the sentences imposed for predatory criminal sexual assault, for a total of 27 years' imprisonment.

¶ 6 On direct appeal, defendant: (1) challenged the sufficiency of the evidence on three of the four counts of predatory criminal sexual assault; (2) alleged, in the alternative, one-act, one-crime violations; and (3) alleged certain voir dire violations. This court determined that the evidence was sufficient to sustain defendant's convictions for two counts of sexual penetration with a finger and two counts of sexual penetration with an object. People v. Foster, 2020 IL App (2d) 170683, ¶¶ 36-44. Turning to the third issue, which we reviewed for prong-one plain error, we concluded that there was a Zehr violation (People v. Zehr, 103 Ill.2d 472, 477-78 (1984)) and, because the evidence, though sufficient, was closely balanced, there was plain error. Id. ¶¶ 60-63 (as S.L. did not "tell the same story that she earlier told the section 115-10 [(725 ILCS 5/115-10 (West 2016)] witnesses," whose testimony, along with defendant's, was consistent, the case was "a contest of credibility between the accounts of the section 115-10 witnesses and that of the defendant, and

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credibility was the only basis on which this case could be decided."). Accordingly, we reversed and remanded for a new trial and did not reach the one-act, one-crime issue. Id. ¶¶ 63-65.

¶ 7 B. Second Trial

¶ 8 1. Pretrial Rulings

¶ 9 Certain pretrial rulings issued prior to the first trial remained in effect for the second trial. Specifically, the trial court had allowed the State to introduce, as substantive evidence under section 115-10 of the Code of Criminal Procedure of 1963 (Code) and provided S.L. testified at trial, S.L.'s prior statements made to Jazmin Lopez, Patricia (Patty) Sanchez, Celia Sanchez, and Pam Ely. The court also granted the State's motion to admit medical hearsay, and Dr. Raymond Davis was also permitted to testify, pursuant to section 115-13 of the Code (725 ILCS 5/115-13 (West 2020)) about S.L.'s hearsay statements.

¶ 10 2. State's Case-in-Chief

¶ 11 The second trial commenced on July 19, 2021. The State's theory of the case was that, in August 2015, S.L., age six and while on a trip to Disney World with her father, Sergio L., and his girlfriend, Jazmin, disclosed that defendant had been touching her private parts. Defendant, age 22, had moved into her mother's home in Aurora that summer. When S.L. returned to Aurora with her father and Jazmin, they went to her grandmother, Celia's, home and S.L. told Celia and her aunt, Patty, that defendant had been touching her private parts. Afterwards, family members contacted the police. S.L. was subsequently interviewed by Ely at the Kane County Child Advocacy Center and told Ely that defendant came to her room at night and hurt her and she wanted him out of her home. Dr. Davis examined S.L., and the exam was normal.

¶ 12 a. Sashonie (Sasha) M.

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¶ 13 Sashonie (Sasha) M., S.L.'s mother, works as a customer-care specialist and had one child, S.L., who was born on February 3, 2009. She has lived in a two-bedroom apartment in Aurora for about seven years. Starting in June 2015, defendant temporarily moved into Sasha's apartment. He was to live in the apartment for about 60 days before returning to college. Sasha knew defendant because he was her then-best friend, Ashley Washington's, cousin. Defendant's father had "kicked" defendant out of his home.

¶ 14 Defendant lived in Sasha's apartment for 63 days, sleeping on a couch in the living room. S.L. slept in her own room at the time. Defendant worked in a factory during the day, and Sasha worked from 8 a.m. to 4:30 p.m. She had a babysitter for S.L.

¶ 15 While defendant lived with Sasha, Sasha would go to the Dollar Store across the street and leave S.L. with defendant. Sasha would be gone for no longer than 10 minutes. The Dollar Store shares a parking lot with Sasha's apartment. When Sasha went to the store, S.L. was in bed. During the summer, her bedtime was 8 or 9 p.m. The first time that Sasha went to the store that summer, S.L. was asleep but, when Sasha returned, S.L. was awake. She was not upset or crying when Sasha arrived home.

¶ 16 One day, when defendant first moved in in June, Sasha was in the kitchen, while defendant and S.L. were in the living room. S.L. was on a pillow close to defendant's lap. S.L. looked uncomfortable and scared. Sasha called S.L. to the kitchen because she had previously told S.L. not to sit on anybody's lap. In July 2015, Sasha was vacuuming her bedroom late one afternoon and S.L. ran inside the bedroom with a weird look that Sasha had never seen. She questioned S.L. about the look, but S.L. appeared to be in shock, did not say anything, and kept nodding her head. Defendant was inside the apartment at the time.

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¶ 17 In the summer of 2015, S.L. went to Disney World with Sergio and Jazmin. Sergio did not live with Sasha but would visit with S.L.

¶ 18 On cross-examination, Sasha testified that, before the summer of 2015, she discussed many times with S.L. about good touches and bad touches. Defendant never volunteered to babysit S.L.

¶ 19 During the summer of 2015, Sasha dated Trinell. Trinell did not live with Sasha but sometimes spent the night in her bedroom.

¶ 20 Sasha never noticed scratches on S.L.'s legs or marks on her neck. S.L. did not complain about scratches or bruises. That summer, S.L. "possibly" had problems with urination, and Sasha took her to the doctor. However, S.L. had prior problems with urination.

¶ 21 On August 19, 2015, Sasha spoke with investigator Ely at the police department and told Ely that she believed Sergio and Jazmin fabricated the allegations against defendant and stated that there was no way that defendant could have touched S.L. because Sasha never left him alone with S.L. Sasha testified that she meant that she never left defendant alone with S.L. for extended periods.

¶ 22 DCFS placed S.L. with Patty. About one year later, S.L. was returned to Sasha. Prior to the Disney trip, Sasha had cut off Sergio and Jazmin from physically contacting S.L. but they were permitted to call S.L.

¶ 23 In 2015, S.L. never told Sasha that defendant hit her, choked her, touched her vagina with a pen, or touched her vagina with his fingers. Nor did S.L. tell Sasha that defendant tried to put his private part in her "booty" or threaten her.

¶ 24 Currently, DCFS is involved in a case with Sasha, specifically a domestic battery case where S.L. is the alleged victim.

¶ 25 b. S.L.

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¶ 26 S.L., age 12 at the time of the second trial, testified that she was six years old in the summer of 2015. That summer, defendant lived in her apartment and slept on the living room couch. He worked and drove a red car. Sasha worked during the day, and she went outside, such as to the store, three times. S.L. was in the house with defendant. S.L. viewed defendant as an uncle.

¶ 27 When defendant lived with Sasha and S.L., S.L. had "touching problems" with him. He touched S.L.'s vagina with his pen or his fingers. The pen was S.L.'s bubble pen, with a pen at the bottom and bubbles on top. Defendant touched S.L.'s vagina with the pen more than two times during the night, in her bedroom. She felt scared and did not know what to do. After a while, it started to burn. Defendant also touched S.L.'s vagina with his fingers, "on the top" of her underwear or whatever else she was wearing. This occurred during the evening while she was in bed. S.L. wore a gown, pajamas, or shorts and a t-shirt. Defendant's fingers moved up and down. This occurred more than one time. S.L. was scared. Defendant threatened to kill her if she told Sasha. S.L. did not tell her mom. S.L. liked defendant but did not like what he was doing.

¶ 28 In 2017, S.L. saw defendant in court. She could not recall if she...