The People Of The State Of Ill. v. Roberson
| Decision Date | 13 May 2010 |
| Docket Number | No. 4-07-0864.,4-07-0864. |
| Citation | 401 Ill.App.3d 758,340 Ill.Dec. 266,927 N.E.2d 1277 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee,v.Ned L. ROBERSON, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
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Michael J. Pelletier, Gary R. Peterson, and Janieen R. Tarrance, all of State Appellate Defender's Office, of Springfield, for appellant.
John P. Schmidt, State's Attorney, of Springfield (Patrick Delfino, Robert J. Biderman, and Linda Susan McClain, all of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
In June 2007, a jury convicted defendant, Ned L. Roberson, of aggravated criminal sexual abuse (720 ILCS 5/12-16(d) (West 2004)) and indecent solicitation of a child (720 ILCS 5/11-6(a) (West 2004)). In August 2007, the trial court sentenced him to concurrent terms of 2 years' probation with 180 days in jail on each conviction.
Defendant appealed, arguing (1) the trial court erred in failing to question the jurors during voir dire about their understanding of defendant's right to not testify; (2) the court erred in granting the State's motion in limine barring evidence the victim had made prior false accusations; (3) the court erred in allowing the State to present propensity evidence of an alleged prior sexual assault; (4) the State failed to prove beyond a reasonable doubt defendant was five years older than the victim; (5) the written judgment order should be corrected to reflect the sentence pronounced by the court; and (6) defendant should not be required to pay the State's Attorney fee as costs of appeal. In February 2009, this court affirmed as modified and remanded with directions. People v. Roberson, No. 4-07-0864 (February 18, 2009) (unpublished order under Supreme Court Rule 23).
The Supreme Court of Illinois denied defendant's petition for leave to appeal but issued a supervisory order ( People v. Roberson, 233 Ill.2d 588, 333 Ill.Dec. 69, 914 N.E.2d 488 (2009) () (No. 108125)) directing this court to vacate our order and to reconsider in light of People v. Glasper, 234 Ill.2d 173, 334 Ill.Dec. 575, 917 N.E.2d 401 (2009). In accordance with the supreme court's directions, we vacated our prior judgment and reconsider in light of Glasper to determine whether a different result is warranted. We again affirm as modified and remand with directions.
According to H.G.'s testimony, on October 4, 2005, defendant asked her to help him “move a chest from his house.” H.G. said she would check with her mother. H.G. was 16 years of age and had known defendant since she was in the fifth grade. Defendant had worked as a teacher's aide at her schools. H.G.'s mother said she wanted to speak with defendant first. H.G. called her mother from defendant's cell phone. H.G. heard defendant say he knew her grandma, cousins, and sister. H.G.'s mother gave her permission, provided H.G. came home in half an hour.
As H.G. walked up the stairs to defendant's apartment, defendant slapped her “butt.” Once in defendant's apartment, he began asking H.G. to have sex. Although she said no, defendant continued to ask. When H.G. walked to the door, defendant asked for a hug. H.G. hugged defendant because she was attempting to leave. H.G. testified, “I was trying to get out of there, and he pulled me in closer and grabbed my butt again and asked me again to have sex with him.” When H.G. told defendant she wanted to leave, defendant said he knew she had time and did not have to be home yet.
H.G. started down the stairs, but defendant got in front of her and told her to hug him like she meant it. Again, H.G. hugged defendant because she was attempting to leave. H.G. testified, “I hugged him, but I tried to keep my body away from him, and he pulled me closer again.” H.G. again told defendant she wanted to leave.
Defendant followed H.G. to her car. H.G. started her vehicle, but defendant reached inside. Defendant asked H.G. to have sex with him several more times, saying his “dick was bigger than her boyfriend's.” She testified defendant told her if she would not have sex with him she should at least “let him see.” When H.G. refused, defendant reached in the car and grabbed H.G.'s crotch outside her pants.
According to H.G., defendant told her this was going to be their “secret.” H.G. testified defendant “made me promise that I wouldn't tell anybody.” H.G. promised defendant she would not say anything because she wanted to leave. H.G. drove away and went straight home.
H.G.'s mother testified to her phone conversation with defendant regarding defendant's request that H.G. help him move. H.G.'s mother also testified defendant assured her he knew her family members and that H.G. would be home shortly.
H.G.'s testimony was also corroborated by her ability to provide an accurate description of defendant's apartment, which defendant testified H.G. had never been inside.
Defendant testified he had known H.G. for six to eight years and that they got “along okay.” On October 4, 2005, defendant was sitting in his vehicle at Shop N Save grocery store when H.G. approached him. She asked defendant if he would ask her mother if she could help him move. Defendant replied “I've done moved it.” H.G. called her mother and asked defendant to speak with her. Defendant testified he spoke with H.G.'s mother and told her “he was pretty much done with moving.” Defendant told H.G.'s mother H.G was too small and he did not need her help.
According to defendant's testimony, H.G. then asked defendant if he could “get [her] some weed.” When defendant told her no, she “looked at [him] real funny and got in the car and drove off.” Defendant testified, “I guess she could have been angry.”
In June 2007, a jury convicted defendant of aggravated criminal sexual abuse and indecent solicitation of a child. The trial court sentenced defendant as stated. Defendant filed motions to reconsider sentence, reconsider the denial of defendant's posttrial motions, and a motion in arrest of judgment, all of which the court denied.
We affirmed as modified and remanded with directions ( People v. Roberson, No. 4-07-0864 (February 18, 2009) (unpublished order under Supreme Court Rule 23)), and the supreme court denied defendant's petition for leave to appeal but directed this court to vacate our judgment and to reconsider in light of Glasper.
As a threshold matter, we note our prior order in this case relied on this court's reasoning in People v. Stump, 385 Ill.App.3d 515, 324 Ill.Dec. 828, 896 N.E.2d 904 (2008). However, following its decision in Glasper, the supreme court issued a supervisory order therein ( People v. Stump, 233 Ill.2d 592, 333 Ill.Dec. 71, 914 N.E.2d 490 (2009) () (No. 107508)) directing this court to vacate its opinion and reconsider its decision in light of Glasper-despite Glasper's application of prior Rule 431 and Stump's application of the amended rule.
On appeal in the instant case, defendant initially argues he is entitled to a new trial because the trial court failed to comply with Rule 431(b). Specifically, defendant contends the court erred by failing to allow the venire members an opportunity to respond to or be questioned about their understanding of defendant's right to not testify as required by Rule 431(b). See People v. Zehr, 103 Ill.2d 472, 477-78, 83 Ill.Dec. 128, 469 N.E.2d 1062, 1064 (1984).
In this case, defendant's trial counsel did not object at the time of the trial court's error. In addition, defendant's posttrial motion did not allege the court failed to comply with Rule 431(b). As a result, the issue has been forfeited. See People v. Hestand, 362 Ill.App.3d 272, 279, 297 Ill.Dec. 831, 838 N.E.2d 318, 324 (2005). Defendant, however, argues the court's failure to comply with Rule 431(b) constitutes plain error affecting his substantial right to a fair trial by an impartial jury.
A plain-error analysis applies where the defendant fails to make a timely objection in the trial court, while a harmless-error analysis applies where the defendant timely objects to the error. People v. Johnson, 388 Ill.App.3d 199, 203, 327 Ill.Dec. 879, 902 N.E.2d 1265, 1268 (2009). Because defendant failed to preserve the trial court's error, we analyze the error under the plain-error doctrine.
A reviewing court may disregard a defendant's forfeiture and review the issue under the plain-error doctrine to determine whether reversal is required. People v. Lewis, 234 Ill.2d 32, 42, 332 Ill.Dec. 334, 912 N.E.2d 1220, 1226 (2009). The plain-error doctrine allows a reviewing court to consider forfeited error when (1) the evidence is closely balanced or (2) the error is so serious that it affected the fairness of the defendant's trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence. People v. Walker, 232 Ill.2d 113, 124, 327 Ill.Dec. 570, 902 N.E.2d 691, 697 (2009). Under either prong of the plain-error analysis, however, the defendant has the burden of persuasion. Lewis, 234 Ill.2d at 43, 332 Ill.Dec. 334, 912 N.E.2d at 1227.
We note that defendant does not argue that the evidence was closely balanced. Instead, defendant contends that the error was so serious that it deprived him of a fair trial. As a result, we confine our review to the second prong of the plain-error analysis. See People v. Alexander, 396 Ill.App.3d 563, 574, 336 Ill.Dec. 91, 919 N.E.2d 1016, 1026 (2009). However, before we can determine whether defendant was deprived of a fair trial, we must first determine whether any error occurred. People v. Piatkowski, 225 Ill.2d 551, 565, 312 Ill.Dec. 338, 870 N.E.2d 403, 411 (2007).
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