People v. Raymond

• Decision Date: 09 December 2010
• Docket Number: No. 1-08-2891.,1-08-2891.
• Citation: 938 N.E.2d 131,404 Ill.App.3d 1028,344 Ill.Dec. 862
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Antonio RAYMOND, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

938 N.E.2d 131

404 Ill.App.3d 1028

344 Ill.Dec. 862

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Antonio RAYMOND, Defendant-Appellant.

No. 1-08-2891.

Appellate Court of Illinois, First District, Sixth Division.

Aug. 13, 2010.

Rehearing Denied Dec. 9, 2010.

Office of the State Appellate Defender, Alan D. Goldberg, Chicago, IL (Sean Southern, Assistant Appellate Defender), for Appellant.

Anita M. Alvarez, State's Attorney, Chicago, IL (Alan J. Spellberg, Samuel Shim, of counsel), for Appellee.

Justice ROBERT E. GORDON delivered the opinion of the court:

[344 Ill.Dec. 867, 404 Ill.App.3d 1030]

Following a jury trial, defendant Antonio Raymond (defendant) was convicted of predatory criminal sexual assault of a child. After considering evidence in aggravation and mitigation, the trial court sentenced him to 20 years' imprisonment. Defendant's motion to reconsider the sentence was denied, and defendant filed this timely appeal. On appeal, defendant argues that his conviction should be reversed because the State failed to prove the element of penetration beyond a reasonable doubt. Defendant further raises several arguments for a new trial: (1) that the trial court denied defendant a fair trial by refusing to allow him to argue mistake of age as a defense; (2) that the trial court erred in allowing evidence concerning defendant'sprior conviction for aggravated criminal sexual abuse; (3) that the trial court violated Supreme Court Rule 431(b) (Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007) during jury selection by not inquiring into all of the Zehr factors ( People v. Zehr, 103 Ill.2d 472, 477, 83 Ill.Dec. 128, 469 N.E.2d 1062 (1984)); and (4) that the State inflamed jurors' passions through improper remarks during closing argument and rebuttal, thereby preventing defendant from receiving a fair trial. Finally, defendant asks for a reduced sentence because he claims that his sentence was excessive. We affirm.

BACKGROUND

On June 7, 2006, 23-year-old defendant Antonio Raymond was arrested when police officers entered a house in which they discovered defendant and 12-year-old KS (victim) on a bed, both naked from the waist down. Defendant was charged with predatory criminal sexual assault of a child. 720 ILCS 5/12-14.1(a)(1) (West 2008).

Prior to trial, the State moved in limine to bar defendant from referencing his belief that the victim was over the age of 17, arguing that mistake of age was not a valid defense to the charge of predatory criminal sexual assault of a child. Defendant responded that the victim told police that she was 19 and later changed her stated age to 15; one officer's arrest report stated that defendant told police that "[s]he told me she was nineteen years old." Defendant argued that the victim's statements as to her age were relevant to her credibility. The trial court granted the State's motion and denied defendant the use of a mistake of age defense.

Additionally, the State moved in limine for the trial court to allow other crimes evidence concerning defendant's prior conviction for aggravated criminal sexual abuse of a victim named JP, as well as evidence of an alleged sexual assault against a woman named SM. As part of its argument against the admission of the other crimes evidence, the defense stated that the victim in the case at bar had told defendant that the house in which they were discovered belonged to her cousin.¹ The trial court granted the State's motion regarding both JP and SM. In allowing the other crimes evidence, the court stated that "[t]he Court has reviewed the motion, considered the arguments, response to the motion, considered the case law, specifically Donahue, considered the federal rules of evidence, specifically 413, and United States versus Withorn, cited at 204 F.3d 790, Eighth Circuit Court case in 2000,

[344 Ill.Dec. 868, 938 N.E.2d 137]

allowing prior sexual assaults to prove a defendant'spropensity to rape teenage girls and then possibly claim that they have consented." The trial court then found that "the four years for three separate sexual assaults is, in fact, close in time. All of the incidents occurred in locations where, I guess, we could say normally consensual sex does not occur; a vehicle, a shed, and an abandoned home." The trial court ruled: "The Court has weighed the probative versus the prejudicial value and finds that the prior sexual assaults which occurred within four years are admissible." However, later the trial court granted defendant's motion to reconsider with regard to SM.

Jury selection for the trial began on September 9, 2008. The trial court read the charges to the entire venire and cautioned that the grand jury indictment was not evidence against defendant. The court then informed the jury that defendant was presumed innocent, that the State had the burden of proving defendant guilty beyond a reasonable doubt, and that defendant was not required to prove his innocence.

The trial court then called a group of 14 prospective jurors from the venire for further questioning. When the trial court addressed the group, the court stated: "The Defendant as I stated is not required to prove his innocence. He has a right to testify. He has a right to remain silent. Should he exercise this right to remain silent and not testify, is there anybody who would hold that against him? No response." The court continued: "The State has the burden of proving the Defendant guilty beyond a reasonable doubt. Should the State meet their burden of proof beyond a reasonable doubt, is there anybody seated in the jury box who could not or would not go into the jury room with your fellow jurors and the law that governs this case as I give it to you and sign a verdict form of guilty. Anybody who could not or would not do that for any reason? No response." The court concluded: "Should the state fail to meet their burden of proof beyond a reasonable doubt, is there anybody seated in the jury box who could not or would not go into the jury room with your fellow jurors and sign a verdict form of not guilty? No response."

The trial court then further questioned the prospective jurors individually, after which the parties excused seven jurors on peremptory challenges or for cause and retained the rest, placing them in the jury room. The trial court then called a second group of 14 prospective jurors from the venire. The trial judge gave similar instructions to the second group:

"The Defendant Mr. Raymond is presumed innocent of the charges against him. The State has the burden of proving him guilty beyond a reasonable doubt. He is not required to prove hisinnocence. He is not required to testify. He choose not to testify, is there anybody seated in the jury box who would hold that against him? No response.

If the State meets that burden of proof beyond a reasonable doubt, is there anybody seated in the jury box who could not or would not go into the jury room with your fellow jurors and the law that governs this case as I give it to you and sign a verdict form of guilty? Anybody who could not or would not do that for any reason? No response.

Should the State fail to meet their burden of proof beyond a reasonable doubt, is there anybody seated in the jury box who could not or would not go into the jury room with your fellow jurors and the law that governs this case as I give it to you and sign a verdict form of not guilty? No response."

[938 N.E.2d 138, 344 Ill.Dec. 869]

Again, the trial court then questioned the prospective jurors individually. The parties excused an additional 7 prospective jurors by peremptory challenges or for cause, leaving a total of 12 sworn jurors and 2 sworn alternates.

Defendant's trial began on September 9, 2008. During the State's case in chief, Chicago police department officers John Beluso and John Tait ² testified as to the events that occurred on June 7, 2006. Officer Beluso testified that he and his partner were called to a two-story house on South Ingleside Avenue concerning a reported criminal trespass in progress. They were met at the building by Officer Tait and two other officers. When the police officers arrived, the front door was partially open and the officers entered the building.

Officer Beluso described the house as "abandoned," testifying that "it was dirty. There was clothes everywhere. It's obviously that no one lived there"; Officer Tait also described the building as "an abandoned house." Officer Tait testified that when he entered the house, he saw litter throughout the house and that the house "[s]melled pretty bad."

Officer Tait then testified that, shortly after entering, he heard "movement" and "shuffling" coming from the second floor, which began to resemble squeaking sounds, and the officers went upstairs. Once at the top of the stairs, Officer Tait determined that the sounds were coming from a bedroom and the officers proceeded to the bedroom, which Officer Tait testified had no door. Once at the bedroom, Officer Tait stood in the doorway while Officer Beluso stood behind him. Officer Tait testified that he had an unobstructed view into the bedroom and saw two individuals, who he identified asdefendant and the victim, on a bed approximately five to seven feet away. Officer Tait testified that the victim looked "young, like [a] teenager."

Officer Tait then entered the bedroom, where he heard grunting noises coming from defendant and the victim, and noticed that both were naked from the waist down. The victim was lying on her back, with her arms around defendant's back and her legs "[s]pread wide open." Defendant was lying on top of the victim's pelvic area, their hips were touching, and his legs were between hers. Defendant's buttocks were "moving up and down" in what Officer Tait described as a "humping fashion." Officer Tait testified that he observed them for a second or two and his first impression was "[t]hat they were having intercourse." Officer Tait ordered defendant to...