Opinion
4-19-0345
10-20-2021
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTONIO D. KIDD, Defendant-Appellant.
This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Sangamon County No. 17CF556 Honorable John M. Madonia, Judge Presiding.
PRESIDING JUSTICE KNECHT delivered the judgment of the court. Justices DeArmond and Turner concurred in the judgment.
ORDER
KNECHT PRESIDING JUSTICE
¶ 1 Held: The appellate court affirmed, concluding (1) counts I and II of the indictment sufficiently set forth the elements of the offenses charged therein, (2) count II of the indictment sufficiently set forth a date range upon which the charged offense allegedly occurred, (3) the denial of defendant's second pretrial motion for independent deoxyribonucleic acid testing was a reasonable and appropriate exercise of the trial court's authority to manage its docket while ensuring the purposes of the discovery rules were met, and (4) the State presented sufficient evidence to sustain defendant's conviction on count II of the indictment.
¶ 2 Following a jury trial, defendant, Antonio D. Kidd, was found guilty of two counts of predatory criminal sexual assault of a child and then sentenced to two consecutively imposed terms of 25 years' imprisonment. Defendant appeals, arguing (1) the trial court erroneously denied his pretrial motions to dismiss the indictment, (2) the trial court erroneously denied his second pretrial motion for independent deoxyribonucleic acid (DNA) testing, and (3) the State failed to prove him guilty beyond a reasonable doubt of one of the charges. We affirm.
¶ 3 I. BACKGROUND
¶ 4 A. Indictment
¶ 5 In June 2017, a grand jury returned a true bill of indictment charging defendant with two counts of predatory criminal sexual assault of a child. Both counts of the indictment alleged defendant, a person over the age of 17, "committed an act of sexual contact, however slight, with T.F.," a person under the age of 13, "in that said defendant placed his penis in contact with the mouth of T.F." Count I alleged the contact occurred "between" August 28, 2016, and August 29, 2016, and count II alleged the contact occurred "between" July 1, 2011, and August 29, 2016.
¶ 6 B. Pretrial Motions to Dismiss the Indictment
¶ 7 Prior to trial, defendant filed various pro se motions seeking the dismissal of the indictment, either in total or in part. In support, defendant alleged, amongst others claims, (1) counts I and II of the indictment failed to set forth the elements of the offenses charged therein and (2) count II of the indictment failed to "adequately narrow down the time and date" of the offense. The trial court, the Honorable Brian T. Otwell presiding, conducted multiple hearings on defendant's pro se motions, where defendant had the opportunity to argue his motions pro se, and the State had the opportunity to respond.
¶ 8 With respect to his request for dismissal of the indictment based upon his claim that counts I and II failed to set forth the elements of the offenses charged therein, defendant argued counts I and II improperly alleged sexual contact instead of sexual penetration, an element of the offense of predatory criminal sexual assault of a child. The State, in response, contended counts I and II properly charged defendant with sexual contact, as the offense of predatory criminal sexual of a child could be proven by showing either sexual contact or sexual penetration. When responding to the State's contention, defendant asserted, if the State desired to charge him based upon an alleged contact, it had to allege the contact occurred for the purpose of sexual gratification or arousal of the victim or the accused. After considering the arguments, the trial court denied defendant's request to dismiss the indictment, finding counts I and II "sufficiently set forth the offense of predatory criminal sexual assault [of a child]."
¶ 9 With respect to his request for dismissal of the indictment based upon his claim that count II failed to "adequately narrow down the time and date" of the offense, defendant did not provide any supporting argument. The State, on inquiry by the trial court, stated count II was based upon statements made by T.F. in a recorded interview. The court, after noting it had previously reviewed T.F.'s recorded interview, denied defendant's request to dismiss count II of the indictment.
¶ 10 Immediately before trial, the State made an oral motion to amend counts I and II of the indictment to include language indicating the "sexual contact" occurred "for the purpose of the sexual gratification of the Defendant or victim." Defendant, through recently appointed counsel, objected to the State's motion and made an oral motion to dismiss the indictment on the grounds it was so defective it denied him an opportunity to prepare a defense. The trial court, honorable John M. Madonia presiding, denied the motions from both the State and defendant. In denying defendant's motion, the court found dismissal was not warranted as the allegation that the contact was sexual sufficiently apprised defendant and indicated the contact occurred for the purpose of sexual gratification or arousal. In denying the State's motion, the court indicated it would nevertheless ensure the jury was instructed with the statutory language.
¶ 11 C. Pretrial Motions for Independent DNA Testing
¶ 12 Prior to trial, defendant made two pro se oral motions for independent DNA testing. The trial court, Judge Otwell presiding, denied defendant's motions. The following is gleaned from the record as it relates to defendant's motions.
¶ 13 On May 31, 2018, defendant expressed a desire for "someone to go over and redo the lab report." The State, in response, indicated it believed defendant was referring to a laboratory report which indicated "a sperm fraction" having a DNA profile consistent with defendant's DNA profile discovered on a "cheek swab" taken from T.F. Defendant, on inquiry by the trial court, confirmed he desired "that swab to be retested by another lab." The court inquired as to whether the cheek swab was consumed during testing, to which the State indicated it would have to follow up with the laboratory which conducted the testing. The court directed the State to do so and reserved ruling until it had that information.
¶ 14 On June 18, 2018, the State averred it had contacted the laboratory which conducted the testing in this case and a forensic scientist indicated one-half of the cheek swab taken from T.F. was not consumed during testing. The State also averred the forensic scientist noted the existence of a swab taken from T.F.'s right shoulder. The swab was found to have semen, but no DNA testing was done on that sample following the result from the DNA testing on the cheek swab. In response, defendant averred he gave a sample for a DNA profile to be included in a state database prior to being released from prison on a prior offense. The DNA testing in this case did not match his profile in the state database but rather a profile obtained from a recent buccal swab he voluntarily gave to law enforcement as part of their investigation. Defendant, believing the profile obtained from his buccal swab may have been "messed up" because it was not transferred to the laboratory for several months, requested independent DNA testing on any items which implicated him but did not match his DNA profile in the state database. The State, in responding to defendant's averment, indicated it was unsure if defendant's profile was in the state database or whether the laboratory ran any DNA profiles found in this case against the state database. The court took the matter under advisement.
¶ 15 On June 26, 2018, the trial court directed defendant to file a written motion "specifying exactly what it is that you want with respect to DNA analysis." Specifically, the court instructed defendant to include in his motion "what comparisons you want to be made with what items of evidence in this case, where you propose that those analyses be conducted, [and] whether you want analysis done with regard to the state DNA Index." The court, recognizing the difficulty in preparing such a motion, indicated it would reconsider a request previously made by defendant for the appointment of standby counsel should defendant still desire that counsel. The following exchange then occurred:
"THE DEFENDANT: Just strike that. You ain't have to go through all of that. I'm not even going to worry about it.
THE COURT: You're not going to worry about it?
THE DEFENDANT: No.
THE COURT: You don't want any additional DNA testing done?
THE DEFENDANT: No.
THE COURT: You don't want an appointment of-or authorization of fees for that?
THE DEFENDANT: No. You ain't got to-
THE COURT: All right.
THE DEFENDANT: -take it up.
THE COURT: All right, so show the Defendant's oral
Motion for Independent DNA Analysis withdrawn at this time."
¶ 16 On September 4, 2018, defendant filed, amongst other pro se motions, (1) a motion to suppress the results from the DNA testing in this case, arguing its prejudicial effect substantially outweighed its probative value, (2) a motion requesting a copy of the DNA procedure manual and DNA testing protocols used by the laboratory which conducted the DNA testing in this case, and (3) a motion for chain of custody documents related to a sexual assault kit administered to T.F. and defendant's buccal swabs.
¶ 17 On September 10, 2018, the State expressed to the trial court its concern with the delays in bringing the matter to trial, suggesting the delays were caused by defendant as a stall tactic.
¶ 18 On September 14, 2018, the trial court, after hearing arguments, denied defendant's motion to suppress the results from the DNA testing. With respect to defendant's request for a copy of the DNA procedure manual and the DNA testing protocols, the court directed the State, to the extent it had not already done so, to provide defendant with the requested items. As to defendant's request for chain of custody documents, defendant expressed concern with information he had indicating his buccal swabs were not taken to the laboratory for several months. The State asserted it had previously tendered the chain of custody documents but, in an abundance of caution, it had requested any and all evidence receipts and indicated it would tender them to defendant once available, and it would set up a time to meet with defendant to review any physical evidence which had attached chain of custody documents. The court reserved ruling pending receipt by the State of further chain of custody documents and set up a hearing for defendant to review any physical evidence which had attached chain of custody documents.
¶ 19 On September 18, 2018, defendant reviewed physical evidence which had attached chain of custody documents.
¶ 20 On September 21, 2018, the State filed an additional answer to discovery, which indicated it had submitted, "Chain of Evidence Possession and Property Detail Report pgs. 374-394."
¶ 21 On September 26, 2018, the trial court conducted a final pretrial hearing. At the time, a jury trial was set to commence on October 1, 2018. Defendant made another pro se oral motion for independent DNA testing. Defendant asserted he was requesting the testing because of issues he noticed with the chain of custody documentation as well as his belief the physical evidence which he reviewed had insufficient "tape to satisfy the handling." The State objected to defendant's motion, arguing any issue with the sufficiency of the tape was a matter for cross-examination. The court ruled:
"All right. Well, I've ruled upon a request for independent examination in the past and denied that request. I don't see that whatever problems you perceive with respect to the packaging of those two exhibits has called into question the lab analysis to add any merit to your prior motion, which again, I've already ruled on a prior request and so that request will be denied at this time.
This case has been pending for quite some time now and I suspect that there may be a hidden agenda to your request at this point on the eve of trial. That request will be denied."
¶ 22 On September 28, 2018, defendant requested the reappointment of counsel. The trial court, over the State's objection, granted defendant's request. The scheduled jury trial was then continued several times to allow defendant's counsel to become familiar with the case.
¶ 23 D. Jury Trial
¶ 24 In March 2019, the trial court, Judge Madonia presiding, conducted a jury trial. The State moved to admit into evidence documents indicating defendant's birthdate was June 6, 1977, which the court granted over no objection.
¶ 25 Gaila C. testified she was the grandmother to T.F. and mother to Megan J. In 2016, Gaila C. would care for some of Megan J.'s children, including T.F., during the week. On the weekends, T.F. and her siblings would return to the care of Megan J. Megan J. lived with her boyfriend, defendant, at a residence on Keys Avenue in Springfield, Illinois. Megan J. and defendant had three children together, the three youngest of Megan J.'s nine children. Around 6 a.m. on Monday, August 29, 2016, Gaila C. picked up T.F., who was nine years old at the time, and some of her siblings from the Keys Avenue residence. When doing so, T.F. asked Gaila C. what was on T.F.'s arm and said she needed to speak with her mother. Gaila C. observed a light white streak on T.F.'s upper arm. T.F. told Gaila C. that defendant had put his penis in her mouth and it tasted terrible. Gaila C. took T.F. to the hospital. Gaila testified T.F. did not eat or drink anything before they went to the hospital. Gaila C. described T.F. that morning as being quiet, unlike her normal, very talkative self. Gaila C. testified Megan J., defendant, and the children had lived with her for about a year before they moved to the Keys Avenue residence. She did not, however, recall what year they lived with her.
¶ 26 Dr. Janda Stevens, an emergency room doctor, testified she treated T.F. when T.F. arrived at the hospital around 8 a.m. on August 29, 2016. When asked what T.F. reported, Dr. Stevens testified: "She told me-she indicated that in the middle of the night her mother's boyfriend came into the room and placed his penis in her mouth. She also said he put semen into her mouth. Uhm, she stated this was not the first time that this had happened." Dr. Stevens documented that T.F. specifically reported her mother's boyfriend" 'put sperm in my mouth.' Dr. Stevens observed a dried white substance on T.F.'s shoulder and face. Dr. Stevens testified T.F. told her that she had something to drink and eat that morning.
¶ 27 Kayla Teich, an emergency room nurse, testified she assisted in providing treatment to T.F. at the hospital on the morning of August 29, 2016. She met T.F. around 7:30 a.m. Teich documented T.F. reported her mother's boyfriend came into her room in the middle of the night, took out his penis, and put it in her mouth. Teich also documented T.F. reported defendant" 'put semen'" in her mouth. T.F. said this was not the first time this had occurred. Teich observed a white stain on T.F.'s right shoulder and a white stain on her right cheek area. Teich obtained and administered a sexual assault kit. In doing so, she collected an oral sample by swabbing inside T.F.'s mouth, under her tongue. Teich also collected samples by swabbing the white substances on both T.F.'s cheek and right shoulder. Teich collected a blood sample from T.F. Teich testified T.F. told her that she had something to drink and eat.
¶ 28 Detective Andrew Brashear testified he collected the sexual assault kit from the hospital after it was administered to T.F. The sexual assault kit was then logged and placed in an evidence locker at the Sangamon County Sheriff's Office.
¶ 29 Sergeant Nancy Finley testified she was the "primary" detective investigating the allegations in this case. On September 8, 2016, T.F. was interviewed at the Child Advocacy Center. On September 22, 2016, defendant was interviewed. Defendant denied having any contact with T.F. and asserted his DNA would not be found on the samples collected from T.F. Defendant agreed to samples being collected from his mouth with buccal swabs for the purpose of obtaining his DNA profile. Sergeant Finley packaged and sealed the buccal swabs and then placed them in a temporary evidence locker at the Sangamon County Sheriff's Office. She observed at trial the tape she used to seal the package had not been altered and the package was in the same or substantially the same condition. Sergeant Finley eventually asked for the package to be sent to a laboratory for testing. In May 2017, Sergeant Finley received laboratory results and arrested defendant. On cross-examination, Sergeant Finley acknowledged she was aware "that this was not the first time that [T.F.] had made such a complaint about [defendant]" and that T.F. had told her mother "at some point in the past" that this had happened before. Sergeant Finely did not find any police reports about the prior accusation.
¶ 30 Jennifer Davis, a former evidence custodian with Sangamon County Sheriff's Office, testified she obtained the sexual assault kit from the evidence locker and took it to the evidence vault on August 29, 2016. She then obtained it from the vault and took it to a laboratory on September 20, 2016. Davis testified she obtained the package containing the buccal swabs from the evidence locker on September 26, 2016. Davis testified she "retrieved it from the locker, put the tags on it, signed it in and out and took it to the Crime Lab." Davis testified she took it to the laboratory on January 5, 2017. The sexual assault kit and package containing the buccal swabs appeared in the same or substantially the same condition as when she had possession of them.
¶ 31 T.F., who at the time of trial was 11 years old, testified about an incident occurring in August 2016 which resulted in her going to the hospital. T.F. testified the incident occurred when she was at the Keys Avenue residence sleeping on the couch in the living room with her baby brother, who was asleep on her shoulder. She woke up to defendant's private part on her mouth, not in it. Defendant then ran back to his room. T.F. testified this happened that night more than once. At some point during one of the encounters something came out of defendant's penis. T.F. was then asked when that happened, to which T.F. testified, "Like all nights that happened." T.F. testified it went outside her mouth when it happened on the specific night discussed. She testified that whatever came out of defendant's penis tasted "[d]isgusting." T.F. told her grandmother what defendant did to her after she picked her up and then they went to the hospital. T.F. testified she told her grandmother" [t]hat he put his private part on my mouth and sperm came out." When asked how long between the last time defendant did that and her grandmother showing up, T.F. testified, "Many, probably about a year."
¶ 32 The following inquiry occurred by the State:
"Q. Okay. So, we talked about the time that this happened on Keys. Were there any other times that this happened where Antonio placed his mouth or his, sorry, his private parts either on or in your mouth?
A. Other times?
Q. Yes.
A. Yeah.
Q. Where were you living when that happened?
A. My grandma.
Q. And when that happened, can you tell us whether he placed his private parts in your mouth or on your mouth?
A. On.
Q. And did stuff come out?
A. Yes."
¶ 33 On cross-examination, T.F. testified she and her baby brother were asleep on the couch, covered up with blankets, and some of her other siblings were also sleeping in the living room. T.F. acknowledged previously seeing her mother take naps on the couch. T.F. testified she woke up when "it all happened" and she could not fall back to sleep "because he kept coming." T.F. later testified defendant did not bother her more than once that night "but just like more than once in all." She then stated she could not fall back asleep because defendant kept coming into the living room. After expressing difficulty with the defense's questions, T.F. testified she did not count how many times it happened the night before she went to the hospital but that it happened more than once. T.F. testified she told her grandmother she was woken up by liquid stuff on her face and she did not have anything to eat or drink prior to going to the hospital "because my grandma didn't want me to *** mess up the DNA." T.F. agreed she reported at the hospital that defendant had put "semen" in her mouth. She testified she reported at the hospital that she was asleep in the living room. T.F. acknowledged previously telling her mother about a similar act committed by defendant but did not recall when that occurred. When asked if she changed her story shortly after telling her mother and reported her brother, as opposed to defendant, had committed the act, T.F. testified, "No, I never told her that."
¶ 34 Megan J. testified, on August 28, 2016, she and defendant had an argument about him wanting to take their vehicle while he was "drunk and high." That evening, defendant was not at home when she went to bed but was then in her bed when she woke up the next morning. Megan J. testified defendant was a great father but had memory issues while under the influence of alcohol and drugs. She acknowledged she usually slept on the couch in the family room. Megan J. testified T.F. reported defendant doing something inappropriate to her in 2015 but, within a matter of 10 minutes, said it was in fact her brother. At the time of that report, they were living with Gaila C.
¶ 35 Denise Johnson, a forensic interviewer with the Child Advocacy Center, interviewed T.F. on September 8, 2016. At that time, T.F. was nine years old. Johnson explained a typical nine-year-old is able to remember an event and some episodic detail but may have a hard time remembering exact times or even exact places. Johnson testified T.F. reported her mother's boyfriend had put his "part in her mouth and liquidy stuff came out" when she was sleeping on a couch in her front room with some of her other siblings. When asked about the "liquidy stuff," T.F. said it was "nasty." When asked if she felt the liquid stuff go anywhere on her, T.F. said it went "in her mouth." T.F. said she was asleep prior to feeling the "liquidy stuff" in her mouth. Upon waking, she saw defendant running away. T.F. told Johnson that it had happened more than once. She stated similar instances involving defendant had occurred 15 times. When asked if T.F. was able to provide any specificity about the other 15 times, Johnson testified T.F. stated it occurred at her grandmother's home and at the home where they were then living. A recording of part of the interview was admitted into evidence and published to the jury.
¶ 36 The parties stipulated to the following, which was read to the jury. Kelly Biggs is a forensic scientist qualified to testify as an expert in the field of "Forensic Science-Biology analysis." On September 20, 2016, the sexual assault kit was submitted for testing. On February 14, 2017, Biggs obtained the sexual assault kit and prepared samples from the items therein for testing. Biggs "identified semen in the swabs from the cheek and shoulder" and "indicated semen in the oral swab." Biggs preserved and submitted the samples for further testing. It was stipulated the sexual assault kit "was kept properly, and there was a true and complete chain of custody."
¶ 37 Dr. Sangeetha Srinivasan, a forensic scientist, was qualified to testify as an expert in DNA forensic analysis. Dr. Srinivasan received the package containing the buccal swabs, which she used to determine defendant's DNA profile. Dr. Srinivasan observed at trial the package containing the buccal swabs was in the same or substantially the same condition as when it was in her possession. She noted the package had an extra seal which indicated it was chosen by a quality review coordinator for a quality assurance check, which she explained was a randomized analysis to assure quality guidelines are followed. Dr. Srinivasan also received the samples from the sexual assault kit prepared by Biggs as well as T.F.'s blood sample, which she used to determine T.F.'s DNA profile.
¶ 38 Dr. Srinivasan was examined about Biggs's apparent differentiation between semen identified and semen indicated. She explained Biggs would have made the differentiation based upon two tests, a preliminary test and confirmatory test. The preliminary test looks for the presence of semen and the results indicate the presence of semen but does not identify the presence of semen. The confirmatory test identifies the presence of semen based upon the identification of sperm cells. Dr. Srinivasan explained if no sperm cell was identified, it would be a semen indicator, but if a sperm cell was identified, it would be a semen identified.
¶ 39 Dr. Srinivasan testified about performing DNA extraction and analysis on the sample from the oral swab, where semen was indicated, and the cheek swab, where semen was identified. She extracted DNA from two fractions, the sperm fraction, which contained "mostly parts or cells that are coming from semen," and the non-sperm fraction, which contained "epithelial cells." She then analyzed the DNA from those fractions with defendant's and T.F.'s DNA profiles.
¶ 40 With respect to her analysis on the sperm fraction of the sample from the oral swab, Dr. Srinivasan testified defendant was included as a contributor. Dr. Srinivasan explained, "[a]nd with relation to the statistics, it is estimated that *** around 1 in 44 billion African-Americans, 1 in 200 trillion Caucasian[s] [, ] and 1 in 30 trillion Hispanics *** selected at random would be included as contributor." As to her analysis on the non-sperm fraction of the sample from the cheek swab, defendant was also included as a contributor. Dr. Srinivasan explained "this profile would be expected to occur in 1 in 7.6 octillion African[-] American[s], 1 in 680 nonillion Caucasian[s] [, ] and 1 in 67 nonillion Hispanic[s]."
¶ 41 Following closing arguments, the jury was instructed a person commits the offense of predatory criminal sexual assault of a child when "he is 17 years of age or older and intentionally commits an act of contact, however slight, between the sex organ or anus of one person and the part of the body of another for the purposes of sexual gratification of the Defendant and the victim is under 13 years of age." The jury was also instructed, to sustain the charge of predatory criminal sexual assault of a child, the State must prove, inter alia, "the Defendant intentionally committed an act of contact, however slight, between the sex organ of one person and *** the part of the body of another for the purposes of sexual gratification of the Defendant."
¶ 42 With respect to the dates upon which the charged offenses were alleged to have occurred, the jury, based upon a ruling by the trial court, was instructed: "The indictment states that the offenses charged were committed between August 28th, 2016[, ] through August 29th, 2016[, ] and July 1st, 2011 [, ] through August 27th, 2016. If you find the offenses charged were committed, the State is not required to prove that they were committed on the particular dates charged." The jury was given, again based upon a ruling by the court, verdict forms finding defendant guilty or not guilty for his conduct occurring on "August 28, 2016[, ], through August 29, 2016" and "July 1, 2011[, ] through August 27, 2016."
¶ 43 During its deliberations, the jury asked, "What is the significance of July 1, 2011 as starting the timeline?" The trial court informed the jury, "You have received all of the evidence you will receive. Please continue with your deliberations."
¶ 44 The jury returned two guilty verdicts.
¶ 45 E. Posttrial Proceedings
¶ 46 In April 2019, defendant, through counsel, filed a motion for acquittal or, in the alternative, a new trial, arguing, in part, (1) the trial court erroneously denied his pro se motions seeking the dismissal of the indictment, (2) the court erred when it denied his pro se request for independent DNA testing, and (3) he was not proven guilty beyond a reasonable doubt. Following a hearing, the court denied defendant's motion.
¶ 47 In May 2019, the trial court held a sentencing hearing. Based on the evidence and recommendations presented, the court sentenced defendant to two, consecutively-imposed terms of 25 years' imprisonment. Defendant later filed a motion to reconsider the sentences imposed, which the court denied after a hearing.
¶ 48 This appeal followed.
¶ 49 II. ANALYSIS
¶ 50 On appeal, defendant argues (1) the trial court erroneously denied his pretrial motions to dismiss the indictment, (2) the trial court erroneously denied his second pretrial motion for independent DNA testing, and (3) the State failed to prove him guilty beyond a reasonable doubt of the offense charged in count II of the indictment.
¶ 51 A. Pretrial Motions to Dismiss the Indictment
¶ 52 Defendant argues the trial court erroneously denied his pretrial motions to dismiss the indictment where (1) counts I and II of the indictment did not set forth every element of the offenses charged therein and (2) count II of the indictment did not state the date of the offense as definitely as could be done. The State disagrees, contending the court properly denied defendant's motions.
¶ 53 "A criminal defendant has a fundamental right to be informed of the nature and cause of criminal accusations made against him." People v. Carey, 2018 IL 121371, ¶ 20, 104 N.E.3d 1150; see U.S. Const., amend. VI; Ill. Const. 1970, art. I, § 8. In Illinois, this right is implemented by section 111-3 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/111-3 (West 2016)), which sets forth specific pleading requirements for a criminal charge. Carey, 2018 IL 121371, ¶ 20. Where, as here, a charging instrument is challenged in a pretrial motion, "the charging instrument must strictly comply with the requirements in section 111-3(a)." Carey, 2018 IL 121371, ¶ 21. The issue of whether a charging instrument strictly complied with section 111-3 (a) is a question of law, subject to de novo review. People v. Espinoza, 2015 IL 118218, ¶ 15, 43 N.E.3d 993.
¶ 54 First, defendant argues, contrary to the finding of the trial court, counts I and II of the indictment failed to strictly comply with section 111-3 (a) (3) of the Code in that they did not set forth the element of the offense of predatory criminal sexual assault of a child that the alleged contact was for the purpose of sexual gratification or arousal of him or T.F. The State disagrees, contending counts I and II of the indictment did not have to allege the contact was for purpose of sexual gratification or arousal of defendant or T.F. because the factual allegations in the indictment constitute an act of "sexual penetration" as defined by section 11-0.1 of the Code (720 ILCS 5/11-0.1 (West 2016)) or, alternatively, the allegation of "sexual" contact in both counts sufficiently described the contact as being for the purpose of sexual gratification or arousal.
¶ 55 Section 111-3(a) (3) of the Code (725 ILCS 5/111-3(a)(3) (West 2016)) states any criminal charge must set "forth the *** elements of the offense charged." A criminal charge fails to allege every element of the offense charged where it meaningfully departs from the language of the statute defining the criminal offense. See People v. Cuadrado, 214 Ill.2d 79, 88, 824 N.E.2d 214, 219 (2005) (disagreeing with the State that the term "solicited" in the indictment was interchangeable with the term "procured" in the statute setting forth the offense of solicitation of murder for hire).
¶ 56 In this case, the indictment alleged, in relevant part, defendant committed the offense of predatory criminal sexual assault of a child in that he "committed an act of sexual contact, however slight, with T.F." The statute defining the criminal offense, in turn, states, in relevant part, a person commits predatory criminal sexual assault of a child where that person "commits an act of contact, however slight, *** for the purpose of sexual gratification or arousal of the victim or the accused." 720 ILCS 5/11-1.40(a)(1) (West 2016).
¶ 57 Comparing the allegations in the indictment with the language of the statute defining the criminal offense, the indictment, rather than alleging an act of contact for the purpose of sexual gratification or arousal of the accused or the victim, alleged "an act of sexual contact." The Oxford English Dictionary Online defines "sexual" as "relating to the instincts, physiological processes, and activities connected with physical attraction or intimate physical contact between individuals." See Oxford English Dictionary Online, www.oed.com/view/Entry/177084 (last visited October 19, 2021) [https://perma.cc/35H3-UF7N]. Under this definition, sexual contact is, in effect, contact done for the purpose for the purpose of sexual gratification or arousal. Therefore, we find counts I and II of the indictment did not meaningfully depart from the language of the statute defining the criminal offense of predatory criminal sexual assault of a child. While the better practice would have been to describe the contact with the qualifying statutory language, we agree with the trial court both counts of the indictment sufficiently set forth the elements of the offenses charged therein and, thus, strictly complied with section 111-3 (a)(3) of the Code.
¶ 58 Second, defendant argues, contrary to the finding of the trial court, count II of the indictment failed to strictly comply with section 111 -3 (a) (5), in that it did not state the date of the offense as definitely as could be done. The State disagrees, highlighting the fact count II involved a sex offense committed against a young child.
¶ 59 Section 111-3(a)(4) of the Code (725 ILCS 5/111-3(a)(4) (West 2016)) states any criminal charge must state "the date *** of the offense as definitely as can be done." This requirement is accorded a degree of flexibility in cases involving a sex offense committed against a child. People v. Guerrero, 356 Ill.App.3d 22, 27, 826 N.E.2d 485, 489 (2005); see People v. Bishop, 218 Ill.2d 232, 247, 843 N.E.2d 365, 374 (2006) (recognizing "that it is often difficult in the prosecution of child sexual abuse cases to pin down the times, dates, and places of sexual assaults, particularly when the defendant has engaged in a number of acts over a prolonged period of time"). "As long as the crime occurred within the statute of limitations and prior to the return of the charging instrument, the State need only provide the defendant with the best information it has as to when the offenses occurred." Guerrero, 356 Ill.App.3d at 27.
¶ 60 In this case, defendant did not provide any supporting argument before the trial court concerning his claim that count II of the indictment failed to "adequately narrow down the time and date" of the offense. The State, on inquiry by the trial court, stated count II was based upon statements made by T.F. in her recorded interview. Defendant now, for the first time on appeal, contends the State could have alleged a much more precise offense date range of just over one year, late 2014 to early 2016, based upon T.F.'s recorded interview as well as a June 20, 2017, police report-a report which he first attached to his posttrial motion-detailing an interview of Gaila C.
¶ 61 In the recorded interview, nine-year-old T.F. described an incident of contact or contacts by defendant which resulted in her going to the hospital. T.F. then stated similar instances involving defendant had occurred 15 times. T.F. indicated those instances occurred at her grandmother's home and where she was currently living. In the police report, it was reported Gaila C. stated Megan J., defendant, and the children lived with her for about a year. The police report does not, however, mention Gaila C. reporting a specific year that occurred. Further, it was reported Gaila C. stated Megan J. "had been with [defendant] for approximately five years." Even considering the interview and police report in tandem, we are unconvinced the date range provided in count II of the indictment failed to state the date of the offense as definitely as could be done. We find count II sufficiently set forth a date range upon which the charged offense allegedly occurred and, thus, strictly complied with section 111-3 (a)(5).
¶ 62 B. Second Pretrial Motion for Independent DNA Testing
¶ 63 Defendant argues the trial court erroneously denied his second pretrial motion for independent DNA testing, where (1) the court's decision was based upon its mistaken belief that it denied his first pretrial motion for independent DNA testing and (2) the record shows discrepancies in the State's DNA evidence which were likely to be resolved by independent DNA testing. The State disagrees, contending the issue is forfeited, the trial court did not err when it denied defendant's motion, and any error was harmless.
¶ 64 At the outset, we must address the State's assertion that the issue is forfeited. The State argues "defendant has forfeited this issue where he withdrew his first motion for independent DNA examination and did not file a written second motion after the [trial] court requested he do so." Defendant disagrees.
¶ 65 A criminal defendant generally "preserves an issue for review by (1) raising it in either a motion in limine or a contemporaneous trial objection, and (2) including it in the posttrial motion." People v. Denson, 2014 IL 116231, ¶ 11, 21 N.E.3d 398. The "[f]ailure to do either results in forfeiture." People v. Sebby, 2017 IL 119445, ¶ 48, 89 N.E.3d 675. "The forfeiture rule protects (i) respect for the trial court as the tribunal with the primary responsibility to make findings of fact and render initial judgments, (ii) time and judicial resources by heading off appeals of nonmeritorious claims, and (iii) against unfair surprise to the State who may otherwise hear of an issue for the first time on appeal." People v. Clifton, 2019 IL App (1st) 151967, ¶ 53, 144 N.E.3d 508.
¶ 66 In this case, the record shows defendant made an oral pretrial motion for independent DNA testing. Defendant then, after the trial court directed him to place his motion in writing, withdrew his motion. Later, defendant made a second oral pretrial motion for independent DNA testing. The State, rather than objecting on grounds that the motion was not in writing, addressed the merits of the motion. The court, in turn, entertained and then denied defendant's motion. Following the trial, defendant included a claim in his posttrial motion that the court erroneously denied his motion for independent DNA testing.
¶ 67 Based upon this record, the issue concerning the independent DNA testing was raised by defendant both before and after trial, the State had the opportunity to respond to the issue, and the trial court had the opportunity to make both factual and legal rulings on the issue. We find defendant has sufficiently preserved for review the issue of whether the trial court erroneously denied his second pretrial motion for independent DNA testing.
¶ 68 Turning to the merits, "[t]here can be no question that [a] defendant has a constitutional right to conduct his own tests on physical evidence." (Internal quotations marks omitted.) People v. Peeples, 155 Ill.2d 422, 477, 616 N.E.2d 294, 319 (1993). That right is guarded by Illinois Supreme Court Rule 412(e) (eff. Mar. 1, 2001), a rule of discovery which requires the State to make physical evidence available for testing.
¶ 69 A defendant's right to conduct his own tests on physical evidence is not, however, "absolute." Peeples, 155 Ill.2d at 477. The committee comments to Rule 412(e) explain:
Access to material by a defense expert must be permitted, sufficient to allow him to reach conclusions regarding the State's examining or testing techniques and results. Where feasible, defense counsel should have the opportunity to have a test made by his chosen expert, either in the State's laboratory or in his own laboratory using a sufficient sample.” (Emphasis added.) Ill. S.Ct. R. 412, Committee Comments (rev. Mar. 1, 2001).
¶ 70 Defendant, citing People v. Gallano, 2019 IL App (1st) 160570, ¶ 26, 147 N.E.3d 912, argues we should review the trial court's denial of his second pretrial motion for independent DNA testing de novo, asserting it concerns the court's compliance with a supreme court rule. Conversely, the State, citing People v. Sutton, 349 Ill.App.3d 608, 619, 812 N.E.2d 543, 551 (2004), argues we should review the court's denial for an abuse of discretion, asserting it concerns a discovery ruling reserved to its sound discretion.
¶ 71 Regardless of how the issue is framed, we find the trial court did not erroneously deny defendant's second pretrial motion for independent DNA testing. Shortly before the start of the scheduled jury trial, defendant made his second oral motion for independent DNA testing. Defendant made his motion shortly after the State had suggested to the court that defendant's recent motions were a stall tactic. In denying defendant's motion, the court indicated its decision was based, at least in part, on its suspicion "that there may be a hidden agenda to your request at this point on the eve of trial." Based upon this record, we cannot say the trial court's ruling constituted a complete failure to comply with Rule 412 or an abuse of discretion. To the contrary, the trial court's ruling was a reasonable and appropriate exercise of its authority to manage its docket while ensuring the purposes of the discovery rules were met.
¶ 72 Moreover, we are unconvinced defendant was prejudiced by the denial of his second pretrial motion for independent DNA testing. No evidence was presented indicating the DNA test results contained possible discrepancies which additional independent testing could likely resolve. Defendant highlights the possibility the DNA found on the samples from the sexual assault kit may not have matched his DNA profile which was allegedly contained within a state database. However, it is unclear an independent laboratory would have access to the State database to resolve this issue, and even if the independent laboratory did determine the profile in the state database did not match the profiles obtained from samples in the sexual assault kit, that does not call into question the DNA analysis based upon the sample from defendant's recent buccal swabs. Defendant also highlights the possibility the DNA on the buccal swabs was altered during the several-month period after the swabs were removed from the evidence locker and before they were transferred to the laboratory. However, Davis, the evidence technician who handled the package containing the buccal swabs during that period, testified at trial the package appeared in the same or substantially the same condition as when she had possession of them. Ultimately, this was not a case which hinged on the DNA evidence. Rather, defendant's guilt was established by the testimony from the victim, herself, along with her prior statements to her grandmother, the emergency room doctor, the emergency room nurse, the forensic interviewer, and her mother.
¶ 73 C. Sufficiency of the Evidence
¶ 74 Last, defendant argues the State failed to prove him guilty beyond a reasonable doubt of the offense charged in count II of the indictment. Specifically, defendant contends the evidence presented at his trial was insufficient to show "he committed an act of contact between his penis and a part of T.F.'s body for the purpose of his sexual gratification on an unknown date between July 1, 2011, and August 27, 2016." The State disagrees.
¶ 75 When presented with a challenge to the sufficiency of the evidence, "the question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Emphasis and internal quotation marks omitted.) People v. McLaurin, 2020 IL 124563, ¶ 22, 162 N.E.3d 252. "The trier of fact remains responsible for resolving conflicts in the testimony, weighing the evidence, and drawing reasonable inferences from the facts." People v. Harris, 2018 IL 121932, ¶ 26, 120 N.E.3d 900. "A criminal conviction will not be reversed for insufficient evidence unless the evidence is so unreasonable, improbable, or unsatisfactory that it justifies a reasonable doubt of the defendant's guilt." People v. Gray, 2017 IL 120958, ¶ 35, 91 N.E.3d 876.
¶ 76 At trial, T.F., after describing an incident of contact or contacts by defendant occurring sometime between the night of August 28, 2016, and early morning hours of August 29, 2016, testified about similar acts of contact by defendant occurring while she and her family lived with her grandmother. T.F.'s testimony was consistent with the statements she made during her recorded interview. Gaila C. testified Megan J., defendant, and the children resided with her for a period of about a year. Megan J. testified T.F. had made an accusation against defendant in 2015, when they were living with Gaila C. T.F. confirmed on the stand that she made a prior accusation against defendant. While Megan J. testified T.F. recanted her prior accusation against defendant, T.F. flatly denied any recantment. While defendant attempts to discredit T.F.'s testimony and statements by highlighting inconsistencies, the jury was in the best position to make credibility determinations, and we find nothing to suggest T.F.'s testimony or statements were inherently unbelievable. From the testimony presented, we find a rational trier of fact could have found defendant committed an act of contact between his penis and a part of T.F. 's body for the purpose of his sexual gratification when T.F. and her family were living at T.F.'s grandmother's home in 2015.
¶ 77 III. CONCLUSION
¶ 78 We affirm the trial court's judgment.
¶ 79 Affirmed.