Opinion
4-23-0004
11-07-2023
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. AARON LAMBERT, 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 Winnebago County No. 20CF2442 Honorable Joseph G. McGraw, Judge Presiding.
JUSTICE LANNERD delivered the judgment of the court. Justices Cavanagh and Steigmann concurred in the judgment.
ORDER
LANNERD JUSTICE
¶ 1 Held: The appellate court affirmed, concluding (1) the trial court's ruling text messages were inadmissible hearsay was harmless error, (2) the State proved defendant's guilt beyond a reasonable doubt, and (3) defense counsel did not provide ineffective assistance of counsel.
¶ 2 In August 2022, defendant, Aaron Lambert, was convicted of two counts of aggravated criminal sexual assault with a firearm (720 ILCS 5/11-1.30(a)(8) (West 2020)). The trial court sentenced defendant to an aggregate 60 years in prison. Defendant timely filed a notice of appeal, arguing (1) the court reversibly erred when it ruled text messages between defendant and the victim were inadmissible hearsay, (2) the State failed to prove the element of force or threat of force beyond a reasonable doubt, and (3) defense counsel provided ineffective assistance by failing to utilize the data extraction report at trial. We affirm.
¶ 3 I. BACKGROUND
¶ 4 Defendant was charged in Winnebago County with two counts of aggravated criminal sexual assault with a firearm (id.) (counts I and II) and two counts of criminal sexual assault (id. § 5/11-1.20(a)(1)) (counts III and IV). Following a jury trial, defendant was convicted on all counts. However, pursuant to the one-act, one-crime doctrine, counts III and IV merged into counts I and II at sentencing. See People v. Bridgewater, 388 Ill.App.3d 787, 800 (2009).
¶ 5 We include only those facts necessary to address the issues raised on appeal.
¶ 6 A. Jury Trial
¶ 7 1. M.A.B. S Testimony
¶ 8 a. Direct Examination
¶ 9 On May 10, 2020, M.A.B. went to her mother's house with her children. After a while, M.A.B. wanted to leave to get McDonald's and marijuana. She began trying to find a ride and eventually got ahold of "A1", who she identified in court as defendant. Defendant agreed to give M.A.B. a ride to McDonald's and picked her up from her mother's house. M.A.B. sat in the front passenger's seat of defendant's vehicle. Defendant drove M.A.B. to McDonald's and bought her food. Thereafter, defendant drove around while he and M.A.B. drank and smoked marijuana together in the vehicle. During the ride, defendant began touching M.A.B.'s thigh and she moved his hand away. M.A.B. then asked defendant to take her home and "his demeanor changed." Defendant became angry and began driving in a different direction, away from her mother's house. When they arrived at an apartment building, M.A.B. could not exit the vehicle because she could not unlock her door. M.A.B. testified defendant's vehicle had lights to designate whether the doors were locked or unlocked, and defendant controlled the locks.
¶ 10 Because she was uncomfortable, M.A.B. sent her location to her sister, M.S.B., via Facebook Messenger. The Facebook Messenger conversation between herself and M.S.B. was admitted without objection as People's exhibit No. 3 and published to the jury. Defendant exited the vehicle and grabbed pills, marijuana, heroin, and a firearm from the vehicle, which he placed in a backpack. He then walked around the vehicle and opened M.A.B.'s door. M.A.B. followed defendant inside the building because she "felt like [she] didn't have a choice" because defendant "had a gun." She identified People's exhibit No. 22 as a photograph of defendant's vehicle, parked in front of the apartment building on 7th Street, which was admitted without objection.
¶ 11 Once inside the building, M.A.B. followed defendant into an apartment upstairs. Defendant took M.A.B.'s phone, which was dead, and went into the bedroom. M.A.B. stood at the window in the living room and tried to "see if there was anybody that was going to walk past" in the hopes of "get[ting] their attention" so she could get help because she "didn't feel safe." However, due to the late hour, M.A.B. did not see anyone walk past. At some point, defendant exited the bedroom and M.A.B. began feeling sick, so she went into the bathroom and stayed there for "a long time."
¶ 12 When M.A.B. exited the bathroom, defendant was standing completely naked in the living room. Defendant "came towards [her]" and began touching her thighs and vagina through her clothing. M.A.B. began crying but defendant did not stop. Defendant removed "[her] bottoms," told her to lie down, and then penetrated her vagina with a banana. He then had unprotected vaginal sex with her. M.A.B. believed he ejaculated "a couple of times" but did not remember how long the sex lasted. She testified she was "really messed up" from the pills defendant put in the alcohol they were drinking. Defendant did not tell her there were pills in the alcohol until after she ingested them. After ingesting these pills, she "got really messed up really fast." After defendant assaulted her, M.A.B. fell asleep on the living room floor.
¶ 13 The next day, defendant and M.A.B exited the apartment and got into defendant's vehicle. At this point, defendant still had M.A.B.'s phone. Defendant drove to Blackhawk Park. After they arrived at the park, M.A.B.'s mother, Chrissy P., arrived as well. When M.A.B. saw her mother, she immediately exited defendant's vehicle and ran to her mother's vehicle. As she exited defendant's vehicle, defendant threw her phone at her. Once inside her mother's vehicle, M.A.B. began throwing up. M.A.B. then went to the hospital to have a sexual assault examination.
¶ 14 During her testimony, M.A.B. identified People's exhibit Nos. 4, 5, and 6 as screenshots of text messages between her phone and her mother. However, M.A.B. insisted she did not send the messages depicted in the screenshots.
¶ 15 b. Cross-Examination
¶ 16 M.A.B. acknowledged she already had defendant's phone number on May 10, 2020, because she "met him one time before." While she and defendant rode around, they were drinking in his vehicle. After she drank the alcohol, defendant told her he put pills in the bottle. She maintained the pills did not affect defendant because he "does pills already." Before she got in his vehicle, M.A.B. knew defendant had a firearm because defendant previously told her he had a firearm, which he keeps under his driver's seat. Once at the apartment building, defendant removed the firearm from under his seat and placed it in a backpack. Defendant never pointed the firearm at M.A.B. When asked about her phone, M.A.B. indicated she had her phone when she entered the apartment, but it was dead. She acknowledged defendant did not take her phone until after the phone had died. M.A.B. conceded she did not attempt to leave the apartment while defendant was in the bedroom or after defendant finished having sex with her. Furthermore, M.A.B. never told defendant to stop while he was assaulting her.
¶ 17 On the morning of May 11, 2020, defendant drove M.A.B. to Blackhawk Park, and they sat in defendant's vehicle before her mother arrived. Officer Matthew Williams met with M.A.B. at the hospital later that day. M.A.B. admitted she did not tell Williams she had been in defendant's vehicle prior to May 10, but she stated he never asked. She denied telling Williams she got defendant's phone number through Facebook and insisted she told Williams she "was looking for a ride through Facebook." She also denied telling Williams defendant left her at Blackhawk Park before her mother arrived. M.A.B. agreed she never gave Williams defendant's contact information but insisted he did not request it. She denied providing incorrect contact information to Williams.
¶ 18 On May 15, 2020, Detective Courtney Tillmon-Listhrop came to M.A.B.'s house unannounced, which upset M.A.B., and she refused to speak with her. Tillmon-Listhrop later interviewed defendant on May 27, 2020. M.A.B. denied making the following statements to Tillmon-Listhrop: there was no condom on the banana defendant assaulted her with; she got defendant's number through a friend on Facebook; she put the pills in her own mouth; and defendant left her at the park before her mother arrived. She also denied telling Tillmon-Listhrop she "began walking near the 15th Avenue bridge[ ] [and] that's when [her] mom pulled up[.]"
¶ 19 Defense counsel confronted M.A.B. with her pending charge of deceptive practice and a petition to vacate court supervision on a domestic battery charge.
¶ 20 2. Chrissy P. 's Testimony
¶ 21 Chrissy P. is the mother of M.A.B. and M.S.B. On May 10, 2020, M.A.B. came over to Chrissy's house, dropped her children off, and told Chrissy "she was going to McDonald's with a friend." Chrissy attempted to stay awake until M.A.B. returned; however, she fell asleep around 2 a.m. At approximately 3 a.m., M.S.B. woke Chrissy because M.A.B. had not returned to pick up her children. Chrissy sent M.A.B. a text message and received a response, but the response was "not something [M.A.B.] would say." Chrissy continued messaging M.A.B.'s phone, asking about M.A.B.'s whereabouts, and received the following responses, among others: "If you come to my home you will be sorry;" "She alive and trust me I got what I wanted that b*** ain't wanna f*** I took it from her;" "I'm not gonna let her go if you called the police I will keep and you will never see her again;" and "I'm 34 and I get what I want dont [ sic ] no b*** say no to me I'll come take it from you and your fat a*** child that keep texting and calling." Chrissy identified People's exhibit Nos. 4, 5, and 6 as screenshots of the text messages between herself and M.A.B.'s phone during the early morning of May 11.
¶ 22 Eventually, defendant contacted M.S.B. and told her to go to Blackhawk Park. Chrissy drove to the park with M.S.B. When they arrived, Chrissy saw defendant's vehicle in a parking spot. She recognized the vehicle as the same vehicle parked in the alley by the apartment on 7th Street. Chrissy identified People's exhibit No. 22 as a photograph of defendant's vehicle. After Chrissy pulled behind the vehicle, M.A.B. exited defendant's vehicle and began running toward Chrissy's vehicle. M.A.B. was crying and started throwing up when she got in Chrissy's vehicle. Chrissy went home to watch the children and M.S.B. and M.A.B. went to the hospital.
¶ 23 On cross-examination, Chrissy admitted she was mad M.A.B. did not return "when she was supposed to" for her kids. Despite her statements in the text messages, Chrissy did not call the police after receiving the messages from M.A.B.' s phone but stated she was looking for officers on 7th Street.
¶ 24 3. Michelle Bootz 's Testimony
¶ 25 Michelle Bootz is a detective with the City of Rockford Police Department. On May 27, 2020, Bootz received M.A.B.'s cell phone and was instructed to perform a data extraction on the device. To perform a data extraction, Bootz "hook[s] up the phone to the [Universal Forensic Extraction Device (UFED)]," which extracts all data from the phone. The UFED allows officers to extract data from devices without altering the data. Once the data is extracted, "it gets put into a program that generates [a] readable report." Bootz performed a data extraction on M.A.B.'s phone, put the data into a report, and placed the report on a disk. She identified People's exhibit No. 24 as the disk containing the extraction report from M.A.B.'s phone, which was admitted without objection.
¶ 26 On cross-examination, Bootz acknowledged an extraction report cannot tell who inputted the data onto the device. Bootz noted extraction reports can sometimes show deleted data; however, the report does not indicate when the data was deleted from the device.
¶ 27 4. Rebecca Anderson 's Testimony
¶ 28 Rebecca Anderson is a detective with the City of Rockford Police Department. On May 27, 2020, Anderson was asked to show M.A.B. a photo lineup. Before administering the lineup, Anderson had not been involved in this case. Anderson identified People's exhibit No. 17 as the lineup advisement form she reviewed with M.A.B. prior to showing M.A.B. the photo lineup. She then identified People's exhibit No. 18 as the photo lineup she showed M.A.B. People's exhibit Nos. 17 and 18 were admitted and published to the jury without objection. After Anderson showed M.A.B. the photo lineup, M.A.B. identified defendant as the individual who assaulted her. This identification was memorialized by M.A.B. through her initials, as well as the time and date, next to defendant's photograph.
¶ 29 5. M.S.B. s Testimony
¶ 30 M.S.B. is the younger sister of M.A.B. In May 2020, M.S.B. lived with her mother, Chrissy P. On May 10, M.S.B. received a message from M.A.B. with a pinned location. She received this message "real late [at] night," around either 11 p.m. or 12 a.m. M.S.B. identified People's exhibit No. 3 as a screenshot of the messages between herself and M.A.B. that night. The pinned location, according to M.S.B., was defendant's address on 7th Street.
¶ 31 The next day, M.S.B. received messages purported to be from M.A.B. on Facebook Messenger. When M.S.B. inquired about M.A.B.'s whereabouts, she received the following messages, among others: "She where I want her to be and now I'm not letting the b*** go since your mom called the police" and "Something bad already happen to your sister and if you shut your f*** mouth I will do it to her again." M.S.B. identified People's exhibit Nos. 8, 9, and 10 as screenshots of the Facebook Messenger conversation between herself and M.A.B.'s account on May 11. These exhibits were admitted and published to the jury, over defense counsel's objection.
¶ 32 Later that day, M.S.B. rode with her mother to Blackhawk Park to pick up M.A.B. When they arrived at the park, M.S.B. saw M.A.B. exit defendant's vehicle and run to her mother's vehicle. M.A.B. was "frantic" and crying. Afterwards, M.S.B. took M.A.B. to the hospital.
¶ 33 On cross-examination, M.S.B. admitted she did not call the police after receiving the messages in People's exhibit Nos. 8, 9, and 10. She also conceded she did not want to speak to the police at the hospital and insisted "[her] sister did all the talking for herself."
¶ 34 6. Sarah Baillargeon's Testimony
¶ 35 Sarah Baillargeon is a registered nurse, employed by Swedish American Hospital. While working in the emergency room on May 11, 2020, Baillargeon spoke with M.A.B. about the sexual assault and conducted a sexual assault examination. As part of the examination, Baillargeon utilized a sexual assault collection kit to collect internal and external swabs from M.A.B.'s vagina. Baillargeon placed these swabs into sealed packages and gave them to the Rockford Police Department. She identified People's exhibit Nos. 21, 21A, and 21B as the sexual assault kit, which included the internal and external swabs she collected from M.A.B. People's exhibit Nos. 21, 21A, and 21B were admitted without objection.
¶ 36 On cross-examination, Baillargeon confirmed she had exclusive possession of the swabs until she placed them into the sealed packages and personally handed them to Officer Williams. Baillargeon agreed there was nothing unusual about M.A.B.'s behavior during the examination and she did not see any sign of injury. A toxicology screening was completed as part of the examination, but Baillargeon did not believe she received the results. As part of her assessment, she is required to ask patients whether they used any drugs or alcohol. When asked whether M.A.B. told her about "ingest[ing] any pills," Baillargeon testified she could not remember. After her recollection was refreshed by her report, she stated she wrote "in quotations from [M.A.B.] stating, take the pill or get shot." Baillargeon acknowledged M.A.B. did not tell her "there were pills in a drink." Additionally, Baillargeon explained she only listed marijuana and alcohol on the assessment sheet in response to the question about drugs or alcohol but contended this was because she did not know what type of pill M.A.B. ingested.
¶ 37 7. Illinois State Police Crime Lab Employees' Testimony
¶ 38 Caroline Summers and Leslie Frake from the Illinois State Police Rockford Forensic Science Laboratory testified to the chain of custody for People's exhibit No. 21 after it was received at the laboratory.
¶ 39 Heather May, an employee of the Illinois State Police Rockford Forensic Science Laboratory, conducted a DNA analysis on the buccal swab collected from defendant. May identified People's exhibit No. 1 as the buccal swab she received and examined. After her analysis, May was able to "develop a DNA profile for [defendant]."
¶ 40 Laurie Lee is a DNA analyst at the Illinois State Police Rockford Forensic Science Laboratory. During her testimony, Lee was qualified as an expert in the fields of forensic science and DNA analysis. As part of her work as a DNA analyst, she analyzed People's exhibit No. 21. Lee was able to determine there was both "female DNA consistent with the victim and a male DNA profile" on both swabs. She then compared the male DNA profile to the profile for defendant. After this comparison, she opined defendant "cannot be excluded from having contributed to those profiles." With respect to the internal vaginal swab, Lee testified the "profile would be expected to occur in approximately 1 in 97,000 unrelated individuals." The statistical frequency for the profile identified in the external vaginal swab would occur in "[approximately 1 in 5.5 quadrillion unrelated individuals."
¶ 41 On cross-examination, Lee agreed "DNA that is deposited consensually looks exactly like DNA that was deposited not by consent."
¶ 42 8. Courtney Tillmon-Listhrop's Testimony
¶ 43 a. Direct Examination
¶ 44 Courtney Tillmon-Listhrop is a detective with the City of Rockford Police Department. Tillmon-Listhrop met with M.A.B. on May 27, 2020, and following the meeting, she created a photo lineup for M.A.B. to view. Although Tillmon-Listhrop created the photo lineup, Detective Anderson showed the lineup to M.A.B.
¶ 45 On December 18, 2020, Tillmon-Listhrop and Detective Rob Washo interviewed defendant at the police station. This interview was audio- and video-recorded. Tillmon-Listhrop identified People's exhibit No. 19 as a copy of defendant's recorded interview, which was admitted without objection. During defendant's interview, defendant identified a photograph of M.A.B. as a woman he knew. Defendant stated multiple times he did not remember having sex with M.A.B., but if he did have sex with her, it was consensual.
¶ 46 Tillmon-Listhrop then identified People's exhibit No. 22 as a photograph she took of the vehicle she observed parked outside of the apartment on 7th Street on May 28, 2020. This vehicle matched the description M.A.B. provided of defendant's vehicle. Tillmon-Listhrop admitted she never exited her vehicle to approach defendant's vehicle.
¶ 47 b. Cross-Examination
¶ 48 Tillmon-Listhrop testified M.A.B. made the following statements during the interview on May 27, 2020: a Facebook friend put M.A.B. in contact with defendant on May 10; M.A.B. sent her location to M.S.B. before going into defendant's apartment because once inside the apartment, M.A.B. was unable to use her phone due to low battery; M.A.B. put the pills in her mouth; there was no condom on the banana defendant used to penetrate M.A.B.; and once at Blackhawk Park, M.A.B. exited defendant's vehicle and began walking, and at that point, her mother and sister arrived to pick her up.
¶ 49 On May 13, 2020, and for several days thereafter, Tillmon-Listhrop attempted multiple calls to M.A.B., but the number was incorrect and the calls did not go through. Because she was unable to reach M.A.B. by phone, Tillmon-Listhrop went to M.A.B.'s house on May 15. M.A.B. was upset by Tillmon-Listhrop's presence at her house and refused to speak with her that day. Tillmon-Listhrop and M.A.B. set up a time to meet the next day, but M.A.B. did not show up.
¶ 50 9. Directed Verdict and Defendant S Proffer on Text Messages
¶ 51 Following the conclusion of the State's evidence, defendant moved for a directed verdict, which was denied by the trial court.
¶ 52 While outside the presence of the jury, defense counsel also asked the trial court to allow her to make an offer of proof regarding one of defendant's potential witnesses. Defense counsel explained she planned to recall Bootz to inquire about text messages between defendant and M.A.B. The State objected to the contents of the messages coming in based on hearsay. Defense counsel noted the messages were part of "[the] log that was taken from the victim's phone that Detective Bootz extracted, that's been admitted into evidence by the State." One message, sent from defendant to M.A.B. on May 11, said, "Gm beautiful thinkin bout u u ok." Defense counsel argued this message was relevant for multiple reasons. First, this message, and all other messages between defendant and M.A.B., were deleted from M.A.B.'s phone. Second, the writing style of this message is different than those purported to be sent by defendant using M.A.B.'s phone on May 11. In support of the second argument, defense counsel pointed out that in the "gm beautiful" message, "u" is not spelled out, while in the messages between Chrissy and M.A.B.'s phone on May 11, "you" is always spelled out. In response, the State argued the contents of the messages should not be admitted because they were statements by defendant, and thus, hearsay because he is not a party opponent for the defense. The court agreed with the State and held:
"I think it's appropriate for you to call Detective Bootz to talk about the extraction, and that as part of the extraction, there were other communications from the defendant's number to the victim's number. Whether they precede the assault or are subsequent to the assault alleged, that can come in, but the content of the text would be hearsay. If your client wants to testify about that, that's one thing. But to have the jury be told that after the fact from your client's phone number come these messages, with the inference being that this is your client who sent these messages, but not the other messages, I think that would be hearsay. Because the content of the message then is benign or friendly in contradiction to the other text, I think that would be hearsay. So the fact of the communications is admissible. I don't think the content of the communications is admissible."
Based on the court's ruling, defense counsel declined to recall Bootz as a witness.
¶ 53 10. Matthew Williams
¶ 54 Matthew Williams, a patrol officer for the City of Rockford Police Department, met with M.A.B. at Swedish American Hospital on May 11, 2020. During his interview with M.A.B., she told him her Facebook friends gave her defendant's contact information on May 10. M.A.B. also told him that on May 11, defendant drove her to Blackhawk Park, where she exited the vehicle, and a short time later, her mother arrived to pick her up. Williams testified M.A.B. never provided him with contact information for defendant. Moreover, Williams did not recall whether he got M.A.B.'s contact information on May 11 or "pull[ed it] forward from a previous record."
¶ 55 On cross-examination, Williams agreed M.A.B. was cooperative and willing to speak with him while at the hospital and allowed Williams to look through her phone and take screenshots of messages that day.
¶ 56 11. Verdict
¶ 57 Following deliberations, the jury found defendant guilty on all charges.
¶ 58 B. Sentencing
¶ 59 At sentencing, the State informed the trial court counts III and IV would merge into counts I and II, so defendant would only be sentenced as to counts I and II. The State requested the court sentence defendant to 15 years in prison for each count, plus the 15-year firearm enhancement on each count, to run consecutively, for an aggregate 60 years in prison. Defense counsel requested the minimum sentence. Defendant made a statement in allocution, professing his innocence and asking for mercy. The court sentenced defendant to 15 years on each count, plus the 15-year firearm enhancement on each count, to run consecutively, for an aggregate 60 years in prison.
¶ 60 This appeal follows.
¶ 61 II. ANALYSIS
¶ 62 Defendant presents three arguments on appeal. First, defendant contends the trial court reversibly erred when it barred defense counsel from questioning Bootz about messages contained in the data extraction report from M.A.B.'s phone, which was already admitted as evidence. Second, defendant alleges the State failed to present sufficient evidence to prove his guilt beyond a reasonable doubt. Lastly, defendant argues defense counsel provided ineffective assistance by failing to utilize the data extraction report at trial. We address each argument in turn.
¶ 63 A. Exclusion of Text Messages in the Data Extraction
¶ 64 Our supreme court has long held rulings on evidentiary issues "are within the sound discretion of the trial court and will not be reversed unless the trial court has abused that discretion." People v. Caffey, 205 Ill.2d 52, 89 (2001). "An abuse of discretion occurs only when (1) the trial court's ruling is arbitrary, fanciful, or unreasonable; (2) no reasonable person would take the view adopted by the trial court; or (3) the ruling rests on an error of law." (Emphasis added.) People v. Brown, 2023 IL App (4th) 220476, ¶ 25.
¶ 65 In this case, the trial court barred defense counsel from introducing text messages between defendant and M.A.B. The messages were located on the data extraction report from M.A.B.'s phone, People's exhibit No. 24. The State objected based on hearsay. In response, defense counsel correctly noted the State had already admitted People's exhibit No. 24 but focused her argument instead on why the messages were not hearsay. However, defense counsel was not attempting to admit the messages; she was going to call a witness to testify about the messages included in the data extraction report. Because the data extraction report had already been admitted into evidence by the State, the court's ruling barring defense counsel from introducing the messages already contained therein was an error of law.
¶ 66 Having concluded the trial court abused its discretion in barring defense counsel from introducing the text messages received by M.A.B.'s phone after the assault and the deletion thereof, the next inquiry is whether the erroneous exclusion of the messages was harmless. See People v. Forrest, 2015 IL App (4th) 130621, ¶ 57 (applying a harmless error analysis to the trial court's evidentiary error). We note, although the State fails to set forth any harmless error analysis in its brief, as it does not concede any error occurred, this court may affirm on any basis supported by the record, even if not argued by the State. People v. Lee, 2023 IL App (4th) 220779, ¶ 64.
¶ 67 When considering whether an error was harmless, this court "may (1) focus on the error to determine whether it might have contributed to the conviction; (2) examine the other properly admitted evidence to determine whether it overwhelmingly supports the conviction; or (3) determine whether the improperly admitted evidence is merely cumulative or duplicates properly admitted evidence." In re Rolandis G., 232 Ill.2d 13, 43 (2008).
¶ 68 Based on our review of the record, the other properly admitted evidence overwhelmingly supports defendant's conviction. M.A.B. testified that after rejecting defendant's sexual advances and asking him to take her home, defendant became angry and drove her to an apartment building instead. When the pair arrived at the apartment building, M.A.B. was unable to unlock the doors to exit the vehicle. Defendant exited the vehicle first, and M.A.B. watched him remove a firearm from under his seat and place it in a backpack. He then walked around the vehicle and opened M.A.B.'s door for her. The entrance to the apartment building was only two steps from where defendant parked his vehicle. Although no witness recalled the exact time, the timestamp noted on the pinned location message sent to M.S.B. read "3:46 AM." Once inside the apartment, defendant took M.A.B.'s phone away from her and went to the bedroom. M.A.B. then went to the window to look for someone to help her, to no avail. She began to feel ill and went into the bathroom, and after she emerged, defendant was standing completely naked in the living room. Defendant then sexually assaulted M.A.B. with a banana and his penis. DNA from the sexual assault kit performed on M.A.B. matched defendant. M.A.B. identified defendant in a lineup. Furthermore, she identified his vehicle and the apartment building. Based on this testimony, even without discussion of any of the messages purportedly sent by defendant utilizing M.A.B.'s phone, we find there was sufficient evidence to overwhelmingly support defendant's conviction.
¶ 69 With respect to the excluded messages, none of the messages were exculpatory. While arguably defense counsel could have utilized the text messages to infer the interaction between M.A.B. and defendant was consensual, this was not the argument made by defense counsel. The introduction of the messages, according to defense counsel, was solely an attempt to discredit defendant's purported authorship of the messages sent from M.A.B.'s phone on May 11, 2020. However, defense counsel made this argument, even with the messages being excluded. Defense counsel established M.A.B.'s phone was password protected and dead when it was provided to defendant and confirmed that the data extraction report is unable to determine who input the data onto the phone. These points were highlighted in her closing argument, and it was up to the jury to determine what weight to give to the messages.
¶ 70 Consequently, although the trial court abused its discretion in barring defense counsel from inquiring about the messages contained on the data extraction report, we conclude the resulting error was harmless beyond a reasonable doubt.
¶ 71 B. Sufficiency of the Evidence
¶ 72 The State must "prov[e] each element of a charged offense beyond a reasonable doubt." (Emphasis added.) People v. Murray, 2019 IL 123289, ¶ 28. When a defendant raises a challenge as to whether the State failed to prove his guilt beyond a reasonable doubt, this court must determine" '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 in original.) People v. Cunningham, 212 Ill.2d 274, 278 (2004) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). "[I]n applying this standard, we will neither reweigh evidence nor judge witness credibility; rather, we defer to the fact finder's credibility determinations." People v. Acklin, 2020 IL App (4th) 180588, ¶ 15. Furthermore, we will not reverse a defendant's conviction for insufficient evidence" 'unless the evidence is so improbable or unsatisfactory that a reasonable doubt remains as to the defendant's guilt.'" People v. McKown, 2021 IL App (4th) 190660, ¶ 49 (quoting People v. Harris, 2018 IL 121932, ¶ 26).
¶ 73 Here, defendant was convicted of two counts of aggravated criminal sexual assault with a weapon (720 ILCS 5/11-1.30(a)(8) (West 2020)). To sustain a conviction for this offense, the State must prove defendant "committed] criminal sexual assault and *** [was] armed with a firearm." Id. "A person commits criminal sexual assault if that person commits an act of sexual penetration and *** uses force or threat of force." Id. § 11-1.20(a). Under the statute, " 'Force or threat of force' means the use of force or violence or the threat of force or violence, including, but not limited to, the following situations:
(1) when the accused threatens to use force or violence on the victim or on any other person, and the victim under the circumstances reasonably believes that the accused has the ability to execute that threat; or
(2) when the accused overcomes the victim by use of superior strength or size, physical restraint, or physical confinement." Id. § 5/11-0.1.
Additionally, to establish threat of force, there must be "some conduct on the part of the accused from which a reasonable person would have felt threatened." People v. Kinney, 294 Ill.App.3d 903, 908 (1998). However, there does not need to be any type of verbal threat; a threat can be communicated "by word or deed." People v. Giraud, 2012 IL 113116, ¶¶ 14-15.
¶ 74 In this case, defendant contends the State failed to prove force or threat of force beyond a reasonable doubt. Therefore, we limit our analysis accordingly.
¶ 75 Defendant alleges the State failed to prove he utilized any force or threat of force against M.A.B. In support of his argument, defendant asserts M.A.B. never attempted to exit his vehicle or the apartment, defendant never pointed the firearm at M.A.B. or spoke threateningly toward her, and defendant placed the firearm into a backpack immediately after removing it from under the driver's seat. Although defendant's recitation of these facts is accurate, there was sufficient other evidence presented to prove force or threat of force based on the totality of the evidence. See People v. Morger, 2016 IL App (4th) 140321, ¶ 47 ("Viewing the totality of the evidence ***, we conclude that any rational trier of fact could have found that the State had proved the essential elements *** beyond a reasonable doubt.").
¶ 76 At the outset, we note although there are two situations specifically outlined in the statutory definition of "force or threat of force," the statute specifically states" 'Force or threat of force' means the use of force or violence or the threat of force or violence, including, but not limited to, the following situations:" (Emphasis added.) 720 ILCS 5/11-0.1 (West 2020). Based on the statutory language, the legislature envisioned other possible scenarios in which force or threat of force can be proven, even though not specifically defined by the statute.
¶ 77 In this case, M.A.B.'s testimony alone was sufficient to establish force or threat of force. Her uncontradicted testimony demonstrated: (1) she rejected defendant's sexual advances and he became angry, (2) defendant drove her to an apartment building after she asked him to be taken home, (3) the doors in defendant's vehicle were locked and she could not unlock them, (4) it was past 3 a.m. when defendant and M.A.B. arrived at the apartment building, (5) after parking the vehicle, defendant removed a firearm from under his seat and placed it into a backpack, which he took with him into the apartment, the entrance to which was steps away, (6) M.A.B. was frightened by defendant's firearm, (7) defendant walked around the vehicle and opened M.A.B.'s door for her, (8) once inside the apartment, defendant took M.A.B.'s phone, (9) M.A.B. looked for help but could not see anyone outside to help her, and (10) after M.A.B. exited the restroom, defendant was completely naked in the living room of the apartment. These facts independently may not prove force or threat of force; however, collectively, these facts, considered in the light most favorable to the prosecution, were sufficient for the jury to determine defendant's actions placed M.A.B. in a threatening situation, which constituted a threat of force. Accordingly, we conclude the State proved defendant's guilt beyond a reasonable doubt.
¶ 78 C. Ineffective Assistance of Counsel
¶ 79 "Every defendant has a constitutional right to the effective assistance of counsel under the sixth amendment to the United States Constitution and the Constitution of Illinois." People v. Domagala, 2013 IL 113688, ¶ 36, 987 N.E.2d 767. A defendant's claim of ineffective assistance of counsel is analyzed under the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984). People v. Veach, 2017 IL 120649, ¶ 29. To prevail on an ineffective assistance claim, "a defendant must show both that counsel's performance was deficient and that the deficient performance prejudiced the defendant." People v. Petrenko, 237 Ill.2d 490, 496 (2010). A defendant must satisfy both prongs of the Strickland standard, and the failure to satisfy either prong precludes a finding of ineffective assistance of counsel. People v. Clendenin, 238 Ill.2d 302, 317-18 (2010).
¶ 80 Defendant contends defense counsel provided ineffective assistance of counsel by failing to utilize the data extraction report from M.A.B.'s phone. Specifically, defendant argues defense counsel failed to (1) make meritorious arguments as to why she was legally entitled to inquire about the messages contained in the data extraction report and (2) utilize other information contained in the data extraction report to impeach M.A.B., M.S.B., and Chrissy P. According to defendant, if "not for [defense counsel's] deficient handling of the report, it is reasonably likely that [defendant] would have been acquitted."
¶ 81 At the outset, we disagree with defendant's assertion that defense counsel failed to make any meritorious arguments as to why she was legally entitled to inquire about the messages contained in the data extraction report. Defendant states: "[Defense counsel] made no record attempt to explain either (1) why the hearsay rule was no barrier to admission of the Gm-beautiful message, or (2) that the Gm-beautiful message was, in fact, already admitted state's evidence at the time she sought to use it." A review of the record establishes defense counsel put forth a legally cognizable basis as to why the messages were not hearsay and specifically stated the messages had already been admitted by the State. For this reason, defendant's first contention of ineffective assistance of counsel is without merit.
¶ 82 We now turn to whether defense counsel's failure to utilize information contained in the data extraction report constituted deficient performance. "[I]n order to establish deficient performance, the defendant must overcome the strong presumption that the challenged action or inaction may have been the product of sound trial strategy." (Internal quotation marks omitted.) People v. Manning, 241 Ill.2d 319, 327 (2011). Our supreme court has held "the decision whether or not to cross-examine or impeach a witness is a matter of trial strategy which will not support a claim of ineffective assistance of counsel." People v. Pecoraro, 175 Ill.2d 294, 326 (1997). "The only exception to this rule is when counsel's chosen trial strategy is so unsound that counsel entirely fails to conduct any meaningful adversarial testing." (Internal quotation marks omitted.) People v. Phillips, 2017 IL App (4th) 160557, ¶ 58.
¶ 83 It is undisputed defense counsel did not utilize any information contained in the data extraction report to impeach the State's witnesses. However, even so, defendant cannot establish this constituted deficient performance. Throughout the trial, defense counsel successfully impeached M.A.B. multiple times with prior inconsistent statements made to the investigating officers, pointed out multiple inconsistencies between the witnesses' versions of events, and established M.A.B.'s phone was password protected and dead when it was provided to defendant. Defense counsel also confirmed that the data extraction report does not establish who input the data. Not only did defense counsel elicit this information during trial, but all these points were also highlighted in closing for the jury. Defense counsel specifically stated, "Consider [M.A.B.]'s credibility. Consider her lack of credibility. There's no way [defendant] would have been able to get on that phone to send any of these messages." Based on our review of the record, we cannot find defense counsel's performance was deficient in that "counsel fail[ed] to conduct any meaningful adversarial testing." (Internal quotation marks omitted.) Id. Consequently, defense counsel did not provide ineffective assistance by failing to utilize the data extraction report from M.A.B.'s phone.
¶ 84 III. CONCLUSION
¶ 85 For the reasons stated, we affirm the judgment of the trial court.
¶ 86 Affirmed.