People v. T.R. (In re T.R.)

• Decision Date: 24 December 2019
• Docket Number: NO. 4-19-0529,4-19-0529
• Citation: 146 N.E.3d 692,2019 IL App (4th) 190529,438 Ill.Dec. 623
• Parties: IN RE T.R., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. T.R., Respondent-Appellant).
• Court: United States Appellate Court of Illinois

2019 IL App (4th) 190529

146 N.E.3d 692

438 Ill.Dec. 623

IN RE T.R., a Minor(The People of the State of Illinois, Petitioner-Appellee,

v.T.R., Respondent-Appellant).

NO. 4-19-0529

Appellate Court of Illinois, Fourth District.

FILED December 24, 2019

James E. Chadd, John M. McCarthy, and Salome Kiwara-Wilson, of State Appellate Defender's Office, of Springfield, for appellant.

Don Knapp, State's Attorney, of Bloomington (Patrick Delfino, David J. Robinson, and Thomas R. Dodegge, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

JUSTICE STEIGMANN delivered the judgment of the court, with opinion.

¶ 1 In April 2017, the State filed a petition for adjudication of wardship, alleging respondent, T.R. (born April 3, 2001), committed criminal sexual assault (penis to vagina) ( 720 ILCS 5/11-1.20(a)(1) (West 2016)), criminal sexual abuse (in that he used force to touch the vagina of I.P.-V. (born March 31, 2002)) (id. § 11-1.50(a)(1)), and criminal sexual abuse (in that he committed an act of sexual penetration with I.P.-V. when she was between the ages of 13 and 17 years old and respondent was less than 5 years older than I.P.-V.) (id. § 11-1.50(b)). In July 2018, after a bench trial, the trial court adjudicated respondent to be a delinquent minor. In December 2018, the court made respondent a ward of the court, sentenced him to 36 months' probation, and imposed 30 days of detention to be stayed pending completion of probation.

¶ 2 On direct appeal, this court concluded that the trial court should have conducted a hearing pursuant to People v. Krankel , 102 Ill. 2d 181, 80 Ill.Dec. 62, 464 N.E.2d 1045 (1984). In re T.R. , 2019 IL App (4th) 190051, ¶ 48, 431 Ill.Dec. 624, 127 N.E.3d 1157. We remanded for such a hearing and retained jurisdiction over respondent's remaining claims. Id. ¶ 51.

¶ 3 On remand, the trial court conducted a Krankel hearing, inquired into the allegations of ineffective assistance of counsel made by respondent's mother and respondent, and concluded those allegations did not warrant the appointment of new counsel to pursue them further.

¶ 4 Respondent appeals, arguing (1) the trial court conducted an inadequate Krankel hearing, (2) the trial court erred by considering evidence not presented at trial, (3) respondent's counsel provided ineffective assistance by stipulating to the introduction of DNA evidence that supported the State's case, (4) the trial court erred by admitting for impeachment purposes testimony regarding statements respondent made during a polygraph examination, and (5) respondent's convictions for criminal sexual abuse should merge with his criminal sexual assault conviction pursuant to the one-act, one-crime doctrine. We agree only with respondent's fifth argument. Accordingly, we vacate respondent's delinquency adjudication for criminal sexual abuse and affirm the trial court's judgment in all other respects.

¶ 5 I. BACKGROUND

¶ 6 A. The Delinquency Petition

¶ 7 In April 2017, the State filed a petition for adjudication of wardship, alleging respondent was a delinquent minor and should be made a ward of the court. The petition alleged that in March 2017, respondent committed three sex crimes against I.P.-V.: (1) criminal sexual assault by placing his penis in I.P.-V.'s vagina by the use of force, (2) criminal sexual abuse by knowingly touching I.P.-V.'s vagina for the purpose of sexual gratification through the use of force, and (3) criminal sexual abuse by placing his penis in I.P.-V.'s vagina when she was between the ages of 13 and 17 years old and he was less than five years older than her.

¶ 8 B. The Bench Trial

¶ 9 1. The State's Case-in-Chief

¶ 10 In June 2018, the trial court conducted a bench trial at which I.P.-V. testified that she was then a 16-year-old high school student. In March 2017, when she was 15 years old, I.P.-V. went with her cousin, X.P., to hang out with X.P.'s boyfriend, Devan M., at his house. It was divided into two apartments, one on the main level, and one on the second level. Devan lived on the first level while respondent lived upstairs. I.P.-V. had never been to Devan's house and did not know respondent, although she had seen him at school.

¶ 11 Upon arrival, Devan escorted the girls upstairs to respondent's apartment, where I.P.-V. met respondent. They then proceeded to the living room, where the four sat down to hang out and listen to music. I.P.-V. and respondent sat on one couch, and X.P. and Devan sat on another couch. After about 10 or 15 minutes, X.P. and Devan went to respondent's bedroom.

¶ 12 I.P.-V. testified that she and respondent continued to talk and respondent began "playing around" and "trying to pull his [penis] out." I.P.-V. told him to stop and moved to the other couch, but respondent followed her. I.P.-V. stated that she was wearing overalls with one strap undone, a sweater, and tights, with a belt over her clothes. I.P.-V. testified that respondent kept playing with her belt and, at some point, she took the belt off.

¶ 13 The two then began to fight over her overalls. She tried to keep them on, while he tried to take them off. I.P.-V. stated that at first she thought they were "play fighting," but then it started to get serious. They fell on the floor and continued to fight. I.P.-V. began hitting respondent and telling him to stop, but he picked her up and took her to what I.P.-V. called "[a] pink room." I.P.-V. identified a photograph introduced into evidence as the "pink room" and described it as such because it had pink walls and pink curtains.

¶ 14 Respondent dropped her on the bed in the pink room, and the two began fighting over her overalls and tights, with respondent pulling them down, and I.P.-V. pulling them up. I.P.-V. asked respondent if he was going to rape her. Respondent said, "No, but you going to take this dick." I.P.-V. stated that after hearing respondent's answer, she "lost hope" and "gave up." Respondent took off her overalls and tights, flipped her onto her stomach, held her hands down, and put his penis in her vagina.

¶ 15 I.P.-V. testified that this lasted about a minute, at which point respondent let her go. I.P.-V. pulled up her pants and went to the bathroom, passing X.P. and Devan on the way. They were still in respondent's bedroom. I.P.-V. stated she was crying in the bathroom, and when X.P. came in, I.P.-V. told X.P. what happened. They then decided to go to I.P.-V.'s godmother's house. Once there, they called the police, and I.P.-V. went to the hospital where staff administered a rape kit.

¶ 16 On cross-examination, I.P.-V. stated that X.P. and Devan closed the door to respondent's bedroom after them, but the door to the pink room stayed open. When she went to the bathroom, the door to respondent's room was open. I.P.-V. agreed that she and respondent were play fighting at first, "[l]aughing for a minute, but then it got serious." I.P.-V. stated that she was yelling "no" and "stop," but the music was loud. I.P.-V. acknowledged that she and X.P. went back to respondent's apartment shortly after leaving to try to get $10, which she had lost there, but I.P.-V. testified that only X.P. went back upstairs.

¶ 17 X.P. testified that in March 2017 she was talking to Devan and went with her cousin, I.P.-V., to hang out at his apartment. Upon arriving, they instead went upstairs to respondent's apartment. X.P. had never been there before and did not know respondent, but X.P. stated that I.P.-V. "seemed to be familiar with him, but not on a personal level." I.P.-V. mentioned she recognized him from school.

¶ 18 X.P. testified that the four of them went to the living room to listen to music and two of them sat on each couch. The music was loud, but X.P. stated they were able to have a conversation over the music using "regular voices." X.P. testified that everybody was getting along and "it was just all good vibes." I.P.-V. and respondent were being playful and pushing each other. Respondent would try to put his arm around I.P.-V., and she would push his arm away.

¶ 19 X.P. testified that after about 20 to 30 minutes, she and Devan went to a bedroom near the front door. Devan closed the door, and the two turned on the TV. X.P. could still hear music from the living room but not any conversation. After another 20 to 30 minutes, X.P. went to the living room to check on I.P.-V., but she did not see I.P.-V. or respondent. However, X.P. heard "the same kind of like yelling that [I.P.-V.] was doing when we were in the living room, like telling [respondent] to stop and stuff like that." X.P. assumed the yelling was coming from a bedroom off the living room. X.P. returned to Devan but left the door open.

¶ 20 About 10 minutes later, X.P. saw I.P.-V. walk by at a fast pace. I.P.-V. was crying, her hair was undone, and she was not wearing her overalls. X.P. went to the bathroom and found I.P.-V. crying and speaking at a fast pace, saying, "He wouldn't stop. He wouldn't stop." The two gathered I.P.-V.'s things and left. As soon as they got downstairs, I.P.-V. realized she was missing $10, so they both returned to respondent's apartment to look for it.

¶ 21 On cross-examination, X.P. further described the type of yelling she heard from the bedroom when she went to check on I.P.-V. as follows:

"Q. Okay. You heard some yelling, but you thought it was still playful; is that right?

A. Yes. Like, [I.P.-V.], my cousin, tends to be a loudmouth. So, when we were in the living room and she was talking about, Oh, stop, stop, she was doing it in, you know, like a high voice level. And so, when they went into the room, I was expecting that she was doing the same thing."

¶ 22 The State then offered a stipulation between the parties into evidence. The stipulation indicated that Dana Yenko, a DNA analyst with Bode Cellmark Forensics, conducted testing on a sexual assault kit. Yenko prepared a report containing her findings and conclusions, and a copy of that report was attached to and submitted as part of the stipulation....