Opinion
5-18-0555
03-21-2022
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD KOMASINSKI, 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 Williamson County. No. 15-CF-392 Honorable Brian D. Lewis, Judge, presiding.
JUSTICE VAUGHAN delivered the judgment of the court. Justices Welch and Wharton concurred in the judgment.
ORDER
VAUGHAN JUSTICE
¶ 1 Held: Defendant's conviction and sentence are affirmed where the defendant's claims of error based on the trial court's admission of the victim's guardianship proceeding documents are precluded by the invited error doctrine, defendant's trial counsel was not ineffective, the State's amendment to count II was not substantive, and the one-act, one-crime principle is not applicable.
¶ 2 Following a jury trial, defendant, Richard Komasinski, was found guilty of criminal sexual assault (720 ILCS 5/11-1.20(a)(2) (West 2014)) and criminal sexual abuse (id. § 11-1.20(a)(2)). He was sentenced to 10 years' imprisonment for criminal sexual assault and 3 years' imprisonment for criminal sexual abuse, with the sentences to be served concurrently. He appeals, arguing that (1) the trial court's admission of State's Exhibit 1 violated his right to a fair trial because the exhibit contained the pleadings from the victim's guardianship proceeding which contained inadmissible hearsay, were confusing, irrelevant, prejudicial, and caused the State to make an improper statement at closing argument; in the alternative, defendant argues that his trial counsel was ineffective in failing to object to the exhibit and the prosecutor's closing statement; (2) the trial court erred by allowing the State to amend the charge in count II on the eve of trial and denying his trial counsel's motion for continuance due to the amendment; and (3) his conviction for criminal sexual abuse should have merged with his conviction for criminal sexual assault under the one-act, one-crime principle, because the State failed to specify what physical contact constituted the requisite sexual conduct in the jury instructions and verdict forms for the abuse charge. For the following reasons, we affirm.
¶ 3 I. BACKGROUND
¶ 4 The State charged defendant by information on August 31, 2015, and June 15, 2017, with two counts of criminal sexual assault (id. § 11-1.20(a) (2)) and one count of criminal sexual abuse (id. § 11-1.50(a)(2)). The charges were based on allegations that defendant engaged in sexual acts with S.N., a person who was unable to give knowing consent, on April 6, 2015. Specifically, the State alleged sexual penetration when defendant placed his tongue on S.N.'s sexual organ (count I), when defendant placed his fingers in S.N.'s anus (count II), and from contact between defendant's mouth and S.N.'s breast (count III).
¶ 5 On August 9, 2018, the State filed an amended information regarding count II, alleging defendant placed his fingers in S.N.'s vagina. Five days later, the case proceeded to a jury trial. Prior to voir dire, the trial court addressed the State's amendment to count II. Defense counsel requested a continuance to allow time to prepare for both voir dire and defense of the amended count as he had only received the amended count the day before. He argued that despite having the information for three years, the State decided to change the charge the day before trial. The State argued that they tried to serve defense counsel with the amendment on August 9, 2018, but they had no email address or facsimile number. The State further argued that it called defense counsel's office and counsel's staff stated they would pick up the pleading. When the document was not picked up, the State provided a copy of the amendment to defense counsel when they saw him at the courthouse on August 13.
¶ 6 The trial court asked if the amendment stemmed from newly discovered evidence or if the evidence had been disclosed to defendant prior to the amendment. The State replied that the evidence was the same from the very beginning and when it looked at count II it realized the word "anus" should have been "vagina." The court again asked for clarification that the amendment was not based on new evidence and was more of a typographical error. The State confirmed that it was a scrivener's error and stated the evidence disclosed by the State encompassed the behavior alleged in the amended information. Defense counsel again argued that the change required different trial preparation and different voir dire questioning, stating that it "boggles the imagination" that the State could slip a change in the felony information with completely different information about the crime, on the day before the trial. The trial court stated there was no newly developed evidence related to the amendment and denied the defense's requested continuance.
¶ 7 The trial court read amended count II to defendant along with the possible sentence, restrictions associated with a finding of guilt, and defendant's constitutional rights. Thereafter, witness lists were provided, and voir dire began. Following jury selection, the State advised the court and defense counsel that they planned to play a redacted version of the statement defendant provided to law enforcement at trial. Defense counsel stated he had no objection as long as the redacted version removed any discussion of any other crime. Defense counsel also renewed his motion for continuance and submitted a Rule 23 order from the Fifth District in support thereof. The court took the matter under advisement.
¶ 8 On August 15, 2018, the trial court found the Rule 23 case distinguishable and denied defense counsel's motion to continue. Thereafter, the State requested clarification as to whether defendant's defense included the affirmative defense of consent. The parties agreed that the victim was of legal age to consent, and the court stated the issue was whether "due to her mental functioning she was legally able to consent." After hearing arguments related to the issue of consent, the trial court stated the defense was not using consent as an affirmative defense stating, "I think that's just-that's a part of the evidence the State will have to put on, because that's- that's part of the allegation is that she was unable to give consent, correct?" The State confirmed by stating, "Correct."
¶ 9 Thereafter, the jury was brought in, both parties provided opening statements, and the State proceeded with its case. S.N.'s mother, Lisa, was the first witness and stated that S.N. was now 23 years old. She stated that 10 days after S.N. received her 15-month immunizations, she started having seizures. The eleventh time it happened, Lisa woke up and S.N. was blue. She was taken to the hospital, diagnosed with epilepsy, and put on medication. A month later, S.N. developed a virus, had a high temperature, and started having grand mal seizures. She was taken back to the hospital and had 27 seizures in three days. The hospital tried 14 different medications over the next 4½ years. S.N. had over 150 grand mal seizures during that time. Some would last half an hour, and they would have to go to the emergency room to get them stopped. Lisa stated that with small seizures the brain cells could reproduce the cells that were killed. However, if a seizure lasted over 20 minutes or if you had too many in a row, the brain cells could not reproduce fast enough to make up for the cells that died, resulting in brain damage.
¶ 10 Lisa confirmed that when S.N. was in school she was in special education classes. She stated that the seizures affected S.N.'s frontal lobe which controlled S.N.'s cognitive behaviors and acted as a "filter." She explained that S.N. would not process something before she said or did something. She did not have the ability to stop and think if it was appropriate or not, and it caused her problems in her social skills as well as in reading comprehension. Her sophomore year, S.N. transferred to Marion, Illinois, for school and participated in a living skills program. Around age 19, S.N. was pretty much done with school because she had done all she could really do. She tested at a fourth-grade level for her intellect. Her social skills and cognitive behavior brought her IQ down. Her social skills were 5 out of 100.
¶ 11 In 2013, Lisa went to court because S.N. needed guidance, was vulnerable, naïve, and could be taken advantage of easily. S.N. would crochet items, sell them in the community, and then give the money to people for whom she felt sorry. She did not understand that people could use her and believed people at their word. Lisa stated that she talked to S.N. about sexual activity in junior high and told her not to let people touch her under her clothing or in her private areas. Lisa testified that S.N. accepted that information but could not understand why somebody would want to do that. She stated that S.N. referred to her vagina as her "front butt."
¶ 12 Lisa stated that S.N.'s form of dating was having a good friend. She went to prom and left early because her date wanted to dance and kiss but S.N. did not like kissing. After she finished school, S.N. had another boyfriend named Brandon who had cerebral palsy. Lisa thought they complemented each other well. Lisa stated she did not allow S.N. to spend the night at Brandon's house. She also stated that S.N. liked to go to Brandon's house because he had a nine-year-old sister that was more at S.N.'s cognitive level.
¶ 13 On the night of the incident in question, Lisa stated that S.N. and Brandon's sister were going to spend the night at their Aunt Angie's house. S.N. was 19 at the time. The next day, the plan was for Lisa's husband to pick up S.N. at 3:30 p.m.; however, S.N. called Lisa that morning and asked to be picked up early. Lisa was working and said no. Lisa asked S.N. to hang out until 3:30 when her stepfather, Doug, could pick her up and S.N. agreed. Doug picked S.N. up at 3:30 and when she got home she whispered in Lisa's ear as Lisa was finishing her last customer. Lisa then went to talk to her husband who stated that S.N. had also talked to him on the way home. Then they went to the Marion police station, the hospital and eventually returned home.
¶ 14 Lisa stated that she did not personally know the defendant but stated he was Angie's husband or boyfriend at the time S.N. stayed at Angie's house. Lisa identified documents from the guardianship proceeding (Exhibit 1) and confirmed that S.N. was the party in the documents. The State moved to admit the exhibit as a self-authenticating document. The court asked if there was any objection and defense counsel stated, "None from the defense, Your Honor." Thereafter, the court admitted the document and noted for the record it was a certified copy of S.N.'s guardianship proceeding. The State moved to publish the documents to the jury. The court asked if there was any objection and defense counsel stated, "Yeah, actually, Judge, I do have an objection to it. Due to the size of it-and I'm not sure exactly what is going to be the benefit that can't be-that it can't be brought in front of testimony." The court agreed it would take "a considerable amount of time for each juror to review" the document. The State offered to wait, and the court reserved the issue stating, "if there are no other objections other than a time factor, I'll allow it to be published at an appropriate time." Defense counsel stated, "That's fine, Judge, because the content is, as you pointed out, a certified record."
¶ 15 On cross-examination, Lisa stated that S.N.'s seizures began when she was 15 months old and started as passing out or not breathing, built up to partial complex seizures and later built up further to grand mal seizures. Lisa stated that the seizures stopped when S.N. was about 14 years old, and she remained on medication. Lisa testified that when S.N. rode the bus there were events that would annoy her. Lisa stated that S.N. would vocalize her displeasure and say, "that person is bothering me." S.N. asked to be removed from that environment but that was not necessary because the bus personnel would work with the kids to ensure there was a seating arrangement that was best for them. S.N. would tell the bus monitor or Lisa if something was annoying her. Lisa stated that with S.N. it was a continual thing. Lisa stated that S.N. reacted the same way throughout high school and would often come home upset that something was on her nerves. Lisa agreed that S.N. could act out. Counsel asked, "When did [S.N.'s] ability to say no to an actor begin?" Lisa responded, "Well, like anybody, she's capable of saying no."
¶ 16 Lisa stated that S.N. was uncomfortable with anything sexual and did not even like the idea of a boy kissing her. Lisa agreed that S.N. went to prom and stated that she did not like prom and did not like the kiss from her prom date. Lisa stated that S.N. had received one kiss on the cheek from Brandon, which was totally different from the kiss at prom. Lisa stated she also saw a hug between S.N. and Brandon and said it was "sweet." It was not a "groping hug," it was a "friendly hug." Lisa agreed that S.N. was 19 at the time the incident occurred but stated that S.N. was operating on a fourth-grade level which was the equivalent of being nine years old. Lisa stated that most nine-year-old children knew how to say "no," but most nine-year-old children were not ready for someone to try something on them for which they were not prepared. Lisa confirmed that S.N. 's frontal lobe damage did not affect her speaking or affect her physically but stated that talking to S.N. was like talking to a fourth grader.
¶ 17 S.N. was called to the stand and stated that she was 23 years old. She stated that she was starting a job the next day being a cook at a nursing home. She hoped that when an opportunity opened she could do crafts with the ladies and serve them drinks. She stated she liked to crochet, was good at it, and made everything except shirts. She lived in Herrin, Illinois, with her mom and her stepdad. Her medications included Sertraline, Depakote, Clonazepam, Vega, and Melatonin. She had always lived with her mom and attended high school for one year in Herrin and three years in Marion. She stated she graduated and received her high school diploma.
¶ 18 S.N. stated that she had two or three boyfriends. When she was 19, her boyfriend was Brandon. They met in school and became friends. Later, he asked her to be his girlfriend and they would hang out. They went to Herrin Fest and a Miner's baseball game together. They wore matching tee shirts. S.N. stated that being boyfriend and girlfriend meant that you were starting out in a relationship, and you wanted somebody with whom you could spend time and have in your life. It was like a best friend almost, but something even better. She liked Brandon but liked his little sister who was nine years old better because she was more fun. Brandon's sister was allowed to spend the night, but Brandon was not. She would watch cartoons with Brandon's sister.
¶ 19 S.N. stated that Angie lived across the street from Brandon. S.N. and Brandon's little sister were going to spend the night at Angie's house, but the sister's parents would not let her stay because it was a school night. She said they were staying at Angie's house because S.N.'s mom did not want S.N. staying with her boyfriend because it was wrong. S.N. did not think it was wrong because she was going to sleep on the bottom bunk of the sister's bunk bed. She stated that Brandon had kissed her on the cheek but that was as far as it went. She stated she did not know that Angie would not get home until midnight.
¶ 20 S.N. stated that Angie's house was a trailer. Brandon's sister did stay for a while but went home when it was dark. After she left, Brandon came over for a little bit and left. At the end of the evening, it was just S.N. and defendant. It was not until later that she found out Angie would not be home until midnight. She stated that she wanted to go home but decided to stay because she thought it was going to be fine, but it did not turn out to be fine.
¶ 21 After Brandon's sister left, S.N. crocheted, sat in the kitchen, and changed her clothes in the guest bedroom, which was Angie's daughter's bedroom. S.N. stated that after she changed clothes, she was sitting at the table and defendant kept begging her to go into the bedroom with him and Bella, the dog. She said, "No, I'm good." He kept begging her to go back there with him, so she finally did. She said she went back to the bedroom because defendant would not shut up. He also had Full House on the television. She stated that defendant told her to come into the bedroom and watch TV and lie on the bed. Once she got in there, he started doing stuff to her. S.N. stated that defendant lifted her shirt, licked her boob, sucked on it, and then he pulled down her pants. She stated that she tried to cover herself down there, but he pushed her hands away and put his penis on her vagina. She stated that he put his fingers in her front butt and after she asked him whether he was trying to make a baby with her, defendant stopped. After he stopped, defendant told her to call Brandon. She called, but it was a short call because Brandon was sleeping. She then went to the other bedroom. S.N. stated that the next morning she saw Angie at the kitchen table. She told Angie what happened, and Angie called defendant at work. S.N. stated that Angie said, "If you tell anybody I won't be your friend, so don't tell your parents what happened." S.N. then called her mom and asked her to pick her up, but she could not because she was working. She did not tell her mom, at that time, what had happened. She then went to Brandon's house and told him what happened, but Brandon did not believe her. At 3:30 p.m., S.N.'s stepdad came to get her, and she told him what happened. When they got home, he told her to take a bath but then told her to get out because they were going to the police station. She also told her mom what happened. After the police station, they went to the hospital where a lady took swabs from her.
¶ 22 On cross-examination, S.N. confirmed that Brandon's sister was supposed to spend the night but then she did not. She stated that she did not call her mom when the plan fell through and ask her to come get her. She stated that the incident started with defendant asking for a kiss and she gave him a kiss on the cheek. Then he kissed her. She stated that she did not say no because she was scared. She stated that she finally told him to stop, and he did, but it was after he had already done everything. She could not remember if she had ever told defendant that she had a disability, but she thought she did. On redirect, S.N. stated that she did not think she told defendant of her disability.
¶ 23 Following S.N.'s testimony, the State's witnesses addressed the collecting, tagging, transportation, and return of the evidence. The State called Keia Tate who is a forensic scientist with the Illinois State Police. She stated that her job involved identifying body fluid stains and preserving biological skin cells for DNA testing. She stated that she examined the material in the sexual assault kit and the underwear and found no evidence of semen.
¶ 24 The State next called Maria Dwyer, the detective with the Marion Police Department who interviewed S.N. She had S.N. go to the hospital and collected S.N.'s clothes. She also went to defendant's residence with Detective Lannon and spoke with defendant about S.N.'s allegations. Defendant told detective Dwyer that he did not know what S.N. was talking about. Thereafter, she asked defendant if she could do a brief search of the residence and he consented. She noticed that several items inside the home were consistent with the description S.N. provided. She then asked defendant if he would be willing to come to the station to do a more thorough interview and he agreed to do so.
¶ 25 Detective Dwyer stated they got to the station around 12:45 a.m. and she read defendant his Miranda warnings. He acknowledged that he understood them, and she interviewed defendant for about 40 minutes. The initial portion of the interview was not recorded. Detective Dwyer stated that during the unrecorded interview, defendant stated that S.N. was the special needs girlfriend of his special needs nephew and denied that anything occurred. He stated that S.N. had spent the night two other times. He agreed that he had been drinking that evening. He stated that after S.N. put on her pajamas, she came back to the kitchen. They talked about her and Brandon getting married someday, them receiving disability benefits, and crocheting. After that, he went to bed with his dog and left S.N. in the kitchen. He stated that S.N. was making a lot of noise in the kitchen and he told her to be quiet. Later, she came to his bedroom and asked if she could hang out in his room. He allowed her to come in and stated that he either fell asleep or passed out after that. At this point, the officer began recording the interview. The redacted interview was then played for the jury.
¶ 26 The next day, the State called Jeanie Chamness, a physician assistant at Heartland Regional Medical Center, who examined S.N. She stated that she noted bruising to S.N.'s left nipple area. She did not know if the bruising could come from wrestling. She stated the injury was consistent with sucking or licking of the breast.
¶ 27 The State called Suzanne Kidd, a forensic scientist specializing in forensic biology DNA with the Illinois State Police Belleville Crime Lab. She tested the swabs in the sexual assault kit and the swabs from the left breast and abdomen. She testified that the left breast swab contained a large amount of DNA that was a mixture from two people and the predominant DNA profile matched defendant. The minor DNA profile was S.N.'s. The swab from S.N.'s abdomen also had a mixture of DNA with the majority being S.N.'s. Defendant could not be excluded as the source of the minor DNA profile. On cross-examination Ms. Kidd stated that she could not determine what type of cell was the source of the DNA, meaning she did not know if the DNA was from blood, saliva, semen, sweat, or skin contact.
¶ 28 Thereafter, the State moved to admit State Exhibits 2 through 9. When asked if the defense had any objection, counsel replied, "No, Your Honor, we want them admitted," and the evidence was admitted. The State also made multiple copies of Exhibit 1, containing the guardianship proceeding documents, so each juror had their own copy. The copies were then provided to the jury over defense counsel's "continuing objection" and the court recessed to allow the jury to review the documents. The State then rested.
¶ 29 The defense moved for a directed verdict on all three counts. The State conceded that count I was not proven. The trial court granted the directed verdict as to count I and denied the motion as to counts II and III.
¶ 30 Thereafter, the defense called S.N.'s boyfriend, Brandon, who stated he knew defendant. Brandon confirmed that he had cerebral palsy and Parkinson's disease. He was 22 years old. Defendant was his uncle. Brandon also confirmed that he dated S.N. for about eight months and attended high school with her. He stated that during that time they held hands, hugged, and kissed pretty much all the time. On the day in question, he was at defendant's house with his sister. S.N. was there and she stayed at defendant's house after he and his sister left. He stated that his Aunt Angie had already gone to work when they left. He was still dating S.N. at that time.
¶ 31 The defense next called defendant's wife, Angela Komasinski, who confirmed that at the time of the incident, she and defendant were living together, and she was at work. She stated that S.N. seemed to have a strong relationship with her and in the past had asked Angie to be her mom. She constantly asked to come over to Angie's house despite not knowing her very well. Angie stated that she knew Brandon's sister was not spending the night because of school the next day and stated that no one was supposed to spend the night on a work night. On the night in question, Angie stated that S.N. told her the next morning that defendant had touched her. Thereafter, she called defendant at work. Angie stated that Brandon then came over to the house and several hours later Brandon and S.N. left and went to Brandon's house.
¶ 32 Defendant took the stand and stated that he was now married to Angie and was working as a coal miner at the time of the incident. He stated that on the day of the alleged incident it was a normal day and he had worked from 7 a.m. to 3 p.m. The kids came over and watched TV, played around, and wrestled. Brandon and his sister went home for the night and S.N. remained at the house. He stated that they talked in the kitchen. Eventually he told S.N. that he was going to bed and S.N. went to change her clothes in his stepdaughter's bedroom. He went to bed and S.N. came to his bedroom door and asked if she could have ice cream which he said was fine. After that, S.N. asked if she could watch TV, and he said sure. He told her she could watch it in the living room or in his room with him and the dog. S.N. came in and laid on the bed. They played with the dog for a while and wrestled around with the dog. He confirmed that he touched her when they were wrestling, and she touched him while they were wrestling. He denied licking any part of S.N. or putting anything inside of her. He stated that she stayed in his room. Later, he got up and went to the kitchen for a soda and she got up and called Brandon. S.N. spent the night in defendant's stepdaughter's room. He did not have any more contact with S.N. that night. He stated he got up at 4 a.m. to get ready for work and left at 5:30 a.m. S.N. was still at the house when he left. He again affirmatively denied inappropriately touching S.N. that night. He further stated that S.N. did not have any trouble communicating with him. He denied all of S.N.'s claims.
¶ 33 On cross-examination, defendant could not recall if he told the officer that he had wrestled with S.N. that night and agreed that he did not mention it on the recorded tape. He could not tell the prosecutor how his DNA got on S.N.'s nipple. He agreed that he knew S.N. suffered from seizures and had brain trauma but did not know she was in school with his nephew, Brandon. Defendant admitted knowing that S.N. was on Social Security disability because she had told him. He recalled telling Officer Dwyer that they sat at the kitchen table talking about S.N. and Brandon potentially getting married and that she would support herself by crocheting. He agreed that he had been drinking that night. On redirect, defendant stated that he did not know that S.N. was found disabled by a court. He was not at that court hearing. He stated that S.N. presented as a normal kid. He stated that he never asked S.N. to come to his bedroom. He did not know she was mentally deficient, although she was a little slow. On recross, defendant denied admitting that he had sexual intercourse with S.N. Thereafter, the defense rested.
¶ 34 The State's jury instructions were presented to the trial court. After a few revisions, they were submitted without objection by the defense. The trial court advised the jury that the arguments made by the attorneys at closing were not evidence and should not be considered by the jury as evidence. The trial court further stated that if the lawyers made a statement that was not based on the evidence or was not a reasonable inference that could be drawn from the evidence, the jury was to disregard the statement. Thereafter, closing arguments were presented.
¶ 35 The State addressed the fact that the victim was 19 years old at the time of the incident but was in essence a fourth grader. The State addressed the testimony of S.N.'s mother and S.N.'s testimony that she was proud because she got the highest grade when she was the only student who knew her name, address, and Social Security number when she was a junior in high school. The prosecutor also talked about S.N.'s disconnect that caused her to react differently to things. The State addressed S.N.'s testimony about defendant pulling up her shirt and sucking on her left breast which was where they found defendant's DNA as well as the DNA on S.N.'s abdomen. The State addressed defendant's testimony and expressed disbelief that his DNA would get through two pieces of clothing if the event occurred the way defendant testified. The State also addressed the way S.N. just blurted out things, or, if she was scared, she would wait to tell someone she trusted.
¶ 36 The State addressed the guardianship exhibit stating the court found S.N. "to be incompetent, to not be able to take care of herself in her own matters of decision making as well as her financial matters *** not all disabled people have to have people that take care of their actual persons, but she does." The State continued, "And if you read the doctor's report in there, he said she did not have the cognitive ability to make decisions. Dr. Quereshi said she did not have those cognitive abilities, and the judge found her to have that disability and declared her mother to be her guardian." The State addressed how S.N. acted like a fourth-grade child, asking people if they would be their mommy or asking to spend the night at someone's house when she was 19 years old. The State also addressed the difference between defendant's statement to the officer that stated his DNA would not be on S.N. and his more recent testimony that they were playing together with the dog on the bed. The State concluded by stating:
"The only decision you can come back with is that this-these two sexual acts happened, that he stuck his finger in her vagina and that he sucked on her breast, and you can find him guilty of both of those counts and that he knew she was unable to consent. He knew because he *** had been around her enough to know she did not have an ability to consent to anything."
¶ 37 Defense counsel addressed S.N.'s inconsistent testimony about what happened that evening. He also addressed the conflicting testimony as to S.N.'s desire to hug and kiss all the time from her boyfriend Brandon. Later, during closing, defense counsel stated:
"Here's what this case turns on, and it's just that simple because she's 19-and-a-half years old [and] the law says she's an adult. The only thing that this case turns on-and you'll see it-is whether she was able or not to give consent; that's it. If *** you don't believe that she could give consent, then you move to the next part
of did these things actually happen? But, first, if she was able to give consent, if she did, indeed, give consent by being there, by going into the bedroom laying on the bed with this man, if she was able to give consent then you don't get to the rest of it, because at 19-and-a-half years old you're able to give consent [and] those charges are gone. So since in her testimony-I don't think it happened-but in her testimony she said that she told Richard to stop, and he did. That is all she said: 'Yes, he stopped.' Well, if she's able to talk to you about withdrawing consent, then why can't she give consent? Which, apparently, she did, because she entered the house, she headed to the bedroom, she played with him and the dog-"
¶ 38 The State objected stating, "He's *** making an argument against the statutory-." Defense counsel interrupted stating, "Judge, in the-in the instructions that you're going to give it says those are the two elements of the crime." The trial court stated, "I think one of the elements is whether or not she could *** legally give consent whether he knew that. Go ahead."
¶ 39 Defense counsel continued by stating:
"Now, the statute doesn't say anything about him having to know about it. But the interpretation of the statute is more along the lines of can you have sex with a-an unconscious person or a person who is unconscious on drugs, or a person who can't feed themselves? Now that portion of the statute has been stretched here, and Richard told you he hasn't been to the court hearing, and Richard told you that nobody told him that she was unable to give consent. And the probate order doesn't say anything about not being able to give consent. It doesn't say that. It said she needs a guardian. Well, okay. She needs a guardian and she got one. But the probate order that they are talking about doesn't say anything about her not being able to
give consent. And there are problems with state's attorney and police officers deciding that this person can't give consent, real problems. There was a law once that said that persons who a doctor considered to be-well they said, 'an idiot,' somebody who could not function with us should not be allowed to reproduce."
¶ 40 The State objected, although no basis for the objection was provided. In response, the trial court gave a curative instruction saying, "You should not-counsel-again, arguments of counsel are not taken as law. I will instruct you on the law when the case is concluded. Go ahead."
¶ 41 Defense counsel continued, "And people who were deemed to be inferior, not as good as the ruling class, not as good as the normal people, were put into camps and eventually exterminated." The State objected, but the trial court stated, "It's argument *** Again, arguments are to be reasonable inferences from the evidence. Go ahead."
¶ 42 Defense counsel continued:
"And we are now doing that, because with that inability to give consent, [S.N.] *** is being told she can't have sex, and anybody who does [have sex with S.N.] is in trouble. Well, it didn't work in 1936 in Austria, and it shouldn't work here. [S.N.] can consent. Nobody here has said that[, ] no doctor said she can't, she can *** until somebody proves it."
Defense counsel then addressed the testimony, claimed that someone was lying, and asked the court to find defendant not guilty.
¶ 43 On rebuttal, the State argued:
"Well, the one thing that [defense counsel] and I do agree on-which I believe was a Freudian slip that he made-is that you have to believe a lie that came from the witness stand in order to find the defendant not guilty. And that would be the lie
that the defendant made when he testified. And it's a good thing that [defense counsel] isn't made of the same things that Pinocchio was made out of. Now-."
¶ 44 Defense counsel interjected, "Was that evidence Judge? I didn't see that part about me-." The trial court stated, "Again, counsel shall refrain from personal attacks *** the jury shall not regard that." The State continued:
"I'll try. Let's see, you know, [defense counsel] would like you to think that [S.N.] is a normal 19-year-old girl, wouldn't he? That she's normal because he keeps saying, 'She's a normal 19-years-old girl,' but you know what? You have evidence to the contrary, don't you? First of all, you've heard from her mother. You've got the court ordered guardianship, a court decree that he can't nullify by saying that she can consent, that's against the law. He can't say that. He can't come in and tell you she can consent now. He can't argue with a court order that way. And when he says in this court order that it doesn't say that, if you read under 'Mental' it says, 'She is very level, impulsive, inattentive, forgetful paranoid with impaired reasoning and judgment, that she has frontal lobe syndrome, she has severe disorder, that she [has] cognitive impairment, [which] negatively affects her social skills and cannot function independently.' Now when I was in the fourth grade I knew the word 'comprehension.' How about you guys? *** but did I know enough to let someone have sex with me? No. The law has said that a fourth grader does not know enough to let a person have sex with them. In order to consent to have sex, you have to be 17 in the State of Illinois. A fourth grader is not that old. *** You know, I take real offense when I'm accused of taking away a person's rights, and when he compares me to a Nazi, which he did. I go out of my way to make sure
things are fair. [S.N.] made a complaint[.] I'm standing up for [S.N.] here today. I am not taking away her right[;] I am giving her. Because she has the mental disability, *** she may have the body of a 19-year-old [but] she does not have the mind of a 19-year-old. And she needs someone to be able to help her make those judgments, and that's what the court decided."
¶ 45 The State concluded by addressing the DNA evidence, S.N.'s failure to leave after the incident, and concluded by asking the jury to find defendant guilty. Thereafter, the trial court read the jury instructions which included the proposition "that the defendant knew that [S.N.] *** was unable to give knowing consent to the act" for both counts. Upon completion of the instructions, the jury retired for deliberation, returned 34 minutes later, and found defendant guilty of both counts.
¶ 46 Defendant filed a motion to vacate or, in the alternative, judgment notwithstanding the verdict. The motion was denied. Defendant then filed a motion for a new trial which was also denied. The sentencing hearing was held on October 26, 2018, and the trial court took the matter under advisement. The parties returned on October 30, 2018, and the trial court sentenced defendant to 10 years' incarceration for criminal sexual assault to be served at 85% and 3 years' incarceration for criminal sexual abuse to be served at 50%. The sentences were to be served consecutively. On November 20, 2018, defendant appealed.
¶ 47 II. ANALYSIS
¶ 48 On appeal, defendant contends that the trial court's admission of the guardianship proceeding documents violated his right to a fair trial because they contained inadmissible testimonial hearsay. He also contends the documents were confusing, irrelevant, prejudicial, and caused the State to make an improper statement at closing argument. In the alternative, defendant argues that his trial counsel was ineffective in failing to object to the exhibit and the prosecutor's statement at closing. Defendant also argues the trial court erred by allowing the State to amend the charge in count II on the eve of trial and denying his trial counsel's motion for continuance due to the amendment. Lastly, defendant asserts his conviction for criminal sexual abuse should have merged with his conviction for criminal sexual assault under the one-act, one-crime principle, because the State failed to specify what physical contact constituted the requisite sexual conduct in the jury instructions and verdict forms for the abuse charge.
¶ 49 Admission of the Guardianship Proceeding Documents
¶ 50 On review, defendant contends that the admission of the guardianship proceeding documents violated his right to a fair trial because the documents were out-of-court testimonial statements that violated the confrontation clause. Defendant concedes that his trial counsel did not object to the admission of the documents and requests review of this issue under both prongs of plain error. Alternatively, defendant requests review as ineffective assistance of counsel.
¶ 51 "The plain error doctrine is a narrow and limited exception." People v. Hillier, 237 Ill.2d 539, 545 (2010). The exception allows a reviewing court to consider an unpreserved error when "(1) a clear or obvious error occurred and the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error, or (2) a clear or obvious error occurred and that 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. Piatkowski, 225 Ill.2d 551, 565 (2007). Therefore, the first step of plain-error review is determining whether a clear or obvious error occurred. People v. Walker, 232 Ill.2d 113, 124 (2009). As such, we first consider whether any error occurred before analyzing the issue as either plain error or ineffective counsel.
¶ 52 We review whether defendant's constitutional right of confrontation was violated de novo. People v. Williams, 238 Ill.2d 125, 141 (2010). "The sixth amendment guarantees that '[i]n all criminal prosecutions, the accused shall enjoy the right *** to be confronted with the witnesses against him.'" Id. at 142 (quoting U.S. Const., amend. VI). "[T]he basic objective of the Confrontation Clause *** is to prevent the accused from being deprived of the opportunity to cross-examine the declarant about statements taken for use at trial." Michigan v. Bryant, 562 U.S. 344, 358 (2011). The "sixth amendment's 'primary object' is with 'testimonial hearsay.' Williams, 238 Ill.2d at 142 (quoting Crawford v. Washington, 541 U.S. 36, 53 (2004)). "[T]he confrontation clause does not bar the admission of testimonial statements that are admitted for purposes other than proving the truth of the matter asserted." Id. (citing Crawford, 541 U.S. at 59 n.9). "Stated another way, we need only consider whether a statement was testimonial if the statements at issue were, in fact, hearsay statements offered to prove the truth of the matter asserted." Id.
¶ 53 Here, while the State claims the guardianship documents were not submitted to prove the truth of the matter asserted because the issue was one of consent and not whether the victim was disabled, we cannot accept such a narrow interpretation. Even if the documents did not address the ultimate issue of consent, the documents contained statements regarding the victim's ability to make decisions and the necessity for a guardianship. As such, we find the documents within the exhibit contained testimonial hearsay that could not escape scrutiny under any of the hearsay exceptions because "satisfying a hearsay exception is no longer enough for admission." People v. Burnett, 2015 IL App (1st) 133610, ¶ 97 (citing Crawford, 541 U.S. at 60-62). For proper admission, "an out-of-court statement must satisfy both a hearsay exception and a defendant's rights under the sixth amendment." Id. (citing People v. Martin, 408 Ill.App.3d 891, 896 (2011)).
¶ 54 However, given the facts in this case, we are compelled to consider the doctrine of invited error. This doctrine prevents a party from "complain[ing] of error which that party induced the court to make or to which that party consented." In re Detention of Swope, 213 Ill.2d 210, 217 (2004). "[W]hen a defendant procures, invites, or acquiesces in the admission of evidence, even though the evidence is improper, [he] cannot contest the admission on appeal." People v. Bush, 214 Ill.2d 318, 332 (2005). "This is because, by acquiescing in rather than objecting to the admission of allegedly improper evidence, a defendant deprives the State of the opportunity to cure the alleged defect." Id. Therefore, we must determine whether defendant invited the alleged error before considering his arguments under the plain error doctrine.
¶ 55 Here, prior to the trial, the State requested clarification as to whether the defense was raising consent as an affirmative defense. In response to the trial court's inquiry as to the victim's mental capabilities, defense counsel admitted S.N. had a legal disability and stated it had to do with money and the disbursal of her Social Security funds. The State replied, "Actually, no, Judge. *** [W]e included in our discovery that we would be admitting a P case where [S.N.] has been declared legally incompetent." After hearing argument, the trial court found that the issue of consent was not being presented as an affirmative defense but was instead a legal argument. Defense counsel agreed.
¶ 56 At trial, following the procurement of Lisa's testimony related to the guardianship proceeding, the State presented Lisa with a copy of the guardianship proceeding documents. Lisa identified the documents and confirmed that S.N. was the person at issue in the guardianship proceedings. The State then moved to admit the exhibit as a self-authenticating document. The court asked if there was any objection and defense counsel stated, "None from the defense, Your Honor." Thereafter, the court admitted the document and noted for the record it was a certified copy of the proceedings. The State then moved to publish the documents to the jury. The court asked if there was any objection and defense counsel stated, "Yeah, actually, Judge, I do have an objection to it. Due to the size of it-and I'm not sure exactly what is going to be the benefit that can't be-that it can't be brought in front of testimony." The court agreed it would take "a considerable amount of time for each juror to review" the document. The State offered to wait, and the court reserved the issue stating, "if there are no other objections other than a time factor, I'll allow it to be published at an appropriate time." Defense counsel stated, "That's fine, Judge, because the content is, as you pointed out, a certified record."
¶ 57 At the close of the State's case, following its display of its exhibits, the State advised the court that it had copies of the probate case to display to the jury. The court stated, "All right. I think she was granted leave to publish the certified copy of the probate case to the jury at a later time when it was admitted." The court explained that the State made multiple copies, so each juror had their own copy, rather than passing around the original. Defense counsel then stated that he hoped "that's what she had done" and claimed that he "didn't know it was going to come to be in the proceedings." The court acknowledged the statement and asked if he had any objection to them. Defense counsel stated, "Yes, I have a continuing objection for the record." However, defense counsel's earlier objection to the document was related to the size and timing of the publication to the jury, not the admission of the evidence.
¶ 58 If the defense had objected to the admission of the evidence at any point during the trial, the State could have remedied the problem by calling the requisite witnesses to the stand. As such, we find that defense counsel's statements invited the trial court to admit the documents by affirmatively responding to the trial court's questions that it had no objection to the admission of the evidence. People v. Cox, 2017 IL App (1st) 151536, ¶ 76. "[A] party cannot complain of error which that party induced the court to make or to which that party consented." In re Detention of Swope, 213 Ill.2d at 217. Because the defense invited the trial court to admit the exhibit, we cannot find plain error (see People v. Patrick, 233 Ill.2d 62, 77 (2009)), or that the admission of the guardianship proceeding documents violated defendant's right to confront the authors of the documents contained within the exhibits.
¶ 59 The defendant also argues that the guardianship proceeding documents should not have been admitted because the documents contained irrelevant evidence, confused the jury, and the documents' prejudicial value outweighed the probative value of the contents. However, for the same reasons above, we find these arguments equally without merit due to the invited-error doctrine. Supra ¶¶ 54-58.
¶ 60 Defendant also argues that the harm created by the admission of the court order "was exacerbated by the State's improper [closing] argument that suggested it was not the jury's duty to decide whether [S.N.] was unable to consent." The "court order" addressed by defendant is the order from S.N.'s guardianship proceeding that granted the guardianship petition. As we previously found the admission of the guardianship proceeding documents was not erroneous, there is no harm to exacerbate.
¶ 61 We further note that defendant's argument related to the prosecutor's statement during closing was not presented as a separate issue on appeal. Defendant does not argue that the prosecutor's errant statement, in and of itself, was reversible error. Instead, defendant only argues that the "admission of the court's order, combined with the State's improper use of the order, created juror confusion that prejudiced Komasinski, denying him of his right to a fair trial." (Emphasis added.) Nothing in defendant's brief, or his reply, argued that the prosecutor's closing statement was so egregious that a new trial was warranted. Nor does defendant allege prosecutorial misconduct or claim that the jury would have reached a contrary verdict solely without the prosecutor's statement. People v. Linscott, 142 Ill.2d 22, 28 (1991). In fact, defendant fails to claim that the prosecutor's statement was a "material factor" in his conviction (id.) or even bother to claim either a clear, obvious, or serious error related to the closing argument. People v. Johnson, 218 Ill.2d 125, 143 (2005); People v. Jackson, 2020 IL 124112, ¶ 81. Instead, defendant merely bootstrapped this claim of error to bolster his primary argument related to the trial court order and the guardianship proceeding documents. Since no argument related to prosecutorial misconduct stemming from closing argument was claimed or argued, we find this issue was forfeited. Ill. S.Ct. R. 341(h)(7) (eff. May 25, 2018); Charter Bank v. Eckert, 223 Ill.App.3d 918, 929 (1992) ("Failure to cite relevant authority in support of a bare argument will not merit consideration of the issue on appeal.").
¶ 62 In the alternative, defendant argues that his trial counsel's failure to object to the admission of the guardianship proceeding documents, or to the prosecutor's statement regarding the trial court's order during the rebuttal closing argument, was evidence of ineffective assistance of counsel. "To establish ineffective assistance of counsel under Strickland, a defendant must demonstrate that (1) counsel's performance was objectively unreasonable compared to prevailing professional standards and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." People v. Cherry, 2016 IL 118728, ¶ 30 (citing Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)). To succeed on a claim of ineffective assistance of counsel, a defendant must overcome the strong presumption that counsel's challenged action or inaction was the product of sound trial strategy. People v. Manning, 241 Ill.2d 319, 327 (2011). "[D]ecisions regarding what matters to object to and when to object are matters of trial strategy" and "will typically not support a claim of ineffective representation." (Internal quotation marks omitted.) People v. Macias, 2015 IL App (1st) 132039, ¶ 82.
¶ 63 Here, we find defendant's claim regarding his trial counsel's failure to object to the admission of the guardianship documents of little merit when viewed in context with his counsel's closing argument which relied on the fact that nothing in the guardianship documents said anything about S.N. "not being able to give consent." Thereafter, defense counsel argued that there were problems with allowing state's attorneys and police officers to decide that a person could not consent and addressed the history of how mentally challenged persons were not allowed to reproduce and how governments that found people inferior placed these people in camps for extermination. Following objections, defense counsel continued by stating:
"And we are now doing that, because with that inability to give consent, [S.N.] *** is being told she can't have sex and anybody who does [have sex with her] is in trouble. Well, it didn't work in 1936 in Austria, and it shouldn't work here. [S.N.] can consent. Nobody here has that[, ] no doctor said she can't, she can *** until somebody proves it."
¶ 64 Here, there is nothing to suggest that defense counsel's failure to object to the admission of the guardianship document was not part of his trial strategy as counsel relied heavily, on what was not formally stated in the guardianship proceeding documents. Further, had defense counsel required the State to procure witnesses to admit the documents, the testimony from the witness may have undermined defense counsel's strategy. Based on this record, we cannot find that "counsel's performance was objectively unreasonable under prevailing professional norms." People v. Domagala, 2013 IL 113688, ¶ 36. "Because a defendant must satisfy both prongs of this [Strickland] test, the failure to establish either prong is fatal to the claim." People v. Clendenin, 238 Ill.2d 302, 317-18 (2010).
¶ 65 Defendant also claims that his trial counsel was ineffective because he failed to object to the State's closing argument addressing the guardianship order and consent because those comments misstated the law. "[A] misstatement of the law during closing argument does not normally constitute reversible error if the circuit court properly instructs the jury on the law, as counsel's arguments are construed to carry less weight with the jury than do instructions from the circuit court." (Internal quotation marks omitted.) People v. Jackson, 2012 IL App (1st) 092833, ¶ 36. "Improper remarks warrant reversal only where they result in substantial prejudice to the defendant, considering the content and context of the language, its relationship to the evidence, and its effect on the defendant's right to a fair and impartial trial." People v. Kliner, 185 Ill.2d 81, 151-52 (1998). Substantial prejudice occurs when the verdict would have been different absent the improper remark. People v. Quiroz, 257 Ill.App.3d 576, 585 (1993).
¶ 66 Here, assuming arguendo, that the state's attorney misstated the law, defendant suffered no prejudice. Here, the ultimate issue was whether defendant knew that S.N. did not have the mental capacity to consent. S.N.'s mother testified about S.N.'s mental capacity as well as her IQ and stated that S.N. functioned mentally as a fourth grader. S.N. also testified and the jury was able to reach their own conclusion as to her mental capacity based on her demeanor and testimony. Additionally, while the defendant testified that he did not know that S.N. had a guardianship or was in "any way mentally deficient," this testimony conflicted with his other testimony that revealed defendant knew S.N. was a "special needs person," that she suffered from seizures, had brain trauma, was receiving Social Security disability benefits, and might have been a little slow. Moreover, following the prosecutor's rebuttal argument, the trial court immediately advised the jury of the law including the instruction that closing arguments did not constitute evidence. As such, we cannot say that, but for defense counsel's failure to object to the State's alleged misstatement, the outcome of defendant's case would be different.
¶ 67 The Change in the Information
¶ 68 Defendant also contends that the trial court erred by allowing the State to change the language in the information immediately before jury selection and denying defense counsel's motion to continue. Defendant was initially charged with criminal sexual assault with the allegation that he placed his fingers in S.N.'s anus. Five days before the trial began, the State moved to amend the information to allege that defendant placed his finger in S.N.'s vagina. In support of the change, the State advised the court that the information was merely a scrivener's error. The trial court permitted the amendment and denied defendant's motion for a continuance after confirming three separate times that the amendment was not based on new evidence and was based on the same evidence previously disclosed to defendant's trial counsel.
¶ 69 We review the trial court's decision to allow an amendment to the information for an abuse of discretion. People v. McCoy, 295 Ill.App.3d 988, 993 (1998). An amendment to the charging instrument is permissible if the change is not material or does not alter the nature and elements of the offense charged. 725 ILCS 5/111-5 (West 2014). The issue becomes whether the change was substantive or formal. "A formal defect is one which does not alter the nature and elements of the offense charged." People v. Patterson, 267 Ill.App.3d 933, 938 (1994). Here, the elements of both offenses remained the same, except for the body part used; regardless of which body part was used, the sentence range remained the same. As such, we agree with the State and find the amendment was related to a scrivener's error.
¶ 70 The evidence, which was previously disclosed to defendant, related to the victim's vagina, not her anus, so there can be no hint of a surprise related to the change. To suggest that trial counsel was prejudiced by the change immediately prior to trial because he would have cross-examined the State's witnesses differently or that defendant's testimony could or would have changed to address a more palatable charge is neither persuasive nor compelling. Where neither surprise nor prejudice can be shown it is not an abuse of discretion for the trial court to amend the information. People v. Jones, 53 Ill.2d 460, 465 (1973). As such, we affirm the trial court's order granting the State's motion to amend the information.
¶ 71 Defendant also argues that the trial court erred by failing to grant defense counsel's motion to continue the hearing. "A conviction will not be reversed by a reviewing court because of the denial of a continuance, unless the denial resulted in prejudice to the defendant." People v. Johnson, 220 Ill.App.3d 550, 559 (1991). The burden to establish prejudice is on defendant. Id. "If the ground for the continuance was to enable counsel to prepare for trial, but the record shows that trial counsel nevertheless competently represented the defendant throughout trial, no abuse of discretion will be found." Id.
¶ 72 Here, defense counsel requested the continuance after the State was allowed to amend count II claiming he needed additional time to prepare for trial due to the amended charge. On appeal, defendant claims the amendment surprised his trial counsel and left "him to scramble to adjust his strategy extemporaneously." However, defense counsel competently represented defendant throughout the trial winning a directed verdict on one count and raising numerous, timely objections throughout the proceedings. As such, we find that the trial court did not abuse its discretion by denying the requested continuance.
¶ 73 One Act, One Crime
¶ 74 Finally, defendant contends that because the jury instructions for the criminal sexual abuse charge did not specify the nature of the sexual conduct for that charge, it should have merged with the sexual assault charge. This error was not preserved and therefore defendant requests plain-error review. We review a one-act, one-crime issue de novo. People v. Artis, 232 Ill.2d 156, 161 (2009). The basic principle behind "one act, one crime" is that a defendant may not be convicted for multiple offenses arising out of a single physical act. People v. King, 66 Ill.2d 551, 566 (1977).
¶ 75 Typically, our first step would be to determine whether the State introduced evidence from which it could be found that the defendant committed multiple acts (People v. Rodriguez, 169 Ill.2d 183, 186 (1996)); however, defendant concedes that the State distinguished the two separate acts for the two counts. Indeed, the victim testified that defendant "put his penis on [her] vagina," touched her in bad spots, and placed his fingers on her "front butt." The victim also testified that defendant "lifted up my shirt, licked my boob, [and] sucked on it."
¶ 76 Here, defendant contends that the jury instructions and the verdict forms did not make a distinction between the two charges and instead only specified the nature of the act for the assault charge. In support, defendant claims, "The jury was told that 'sexual conduct means any intentional or knowing touching of fondling by the accused, either directly or through the clothing of the sex organ or anus of the victim for the purpose of the sexual gratification or arousal of the victim or the accused.'" Based on this definition, defendant claims that "the conduct alleged in the assault charge also fell under the abuse charge" because contact between defendant's finger and S.N.'s vagina was sufficient to find defendant guilty of "both penetration and sexual conduct."
¶ 77 We find this argument has no merit because defendant ignores the trial court's recitation of the counts at the beginning of the trial and misquotes the trial court's instruction on "sexual conduct." At the beginning of the trial the court stated, regarding count II, that it was alleged that defendant "committed an act of sexual penetration with [S.N.], who was unable to give knowing consent, in that [defendant] placed his finger in the vagina of [S.N.]. The trial court also read count III stating that it was alleged that defendant "knowingly committed an act of sexual conduct with [S.N.], a person who was unable to give knowing consent, in that defendant kissed and sucked the breast of [S.N.] for the sexual gratification of the defendant or the victim."
¶ 78 Following the close of evidence, the trial court instructed the jury regarding count II stating that "sexual penetration" was:
"any contact, however slight, between the sex organ of one person and an object, a sex organ or mouth of another person, or intrusion, however slight, of any part of the body of one person into the sex organ of another person. Evidence of emission of semen is not required to prove sexual penetration. A finger can be an 'object' within the statutory definition of sexual penetration."
Regarding count III, the trial court informed the jury that "sexual conduct" was "any intentional or knowing touching or fondling by the accused, either directly or through the clothing, of the sex organ, anus, or breast of the victim, for the purpose of sexual gratification or arousal of the victim or the accused." (Emphasis added.) Defendant's omission of the words "or breast" from the trial court's instructions to make his argument and claim similarities to case law finding one act, one crime is not well taken.
¶ 79 The State indicated via both the charges and the jury instructions that it intended to prove separate acts to support multiple convictions. The offenses were based on separate acts specifically described in the charges, testified to by the victim, and explained in the jury instructions that differentiated between sexual penetration and sexual conduct. "The jury is presumed to follow instructions." People v. Phillips, 392 Ill.App.3d 243, 270 (2009). Defendant's convictions therefore did not violate the one-act one-crime doctrine.
¶ 80 III. CONCLUSION
¶ 81 For the foregoing reasons, we affirm the trial court's judgment and defendant's sentence.
¶ 82 Affirmed.