Opinion
4-23-0722
06-20-2024
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRIAN D. SAMPLE, 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 Boone County No. 22CF8 Honorable C. Robert Tobin III, Judge Presiding.
PRESIDING JUSTICE CAVANAGH delivered the judgment of the court. Justices Harris and Vancil concurred in the judgment.
ORDER
CAVANAGH PRESIDING JUSTICE
¶ 1 Held: (1) Defense counsel rendered constitutionally adequate assistance. (2) The sentences are not an abuse of discretion.
¶ 2 In the Boone County circuit court, a jury found defendant, Brian D. Sample, guilty of sexual offenses against his daughter. The court sentenced him to an aggregate prison term of 40 years (20 years for each of the two counts of the indictment). Defendant appeals, arguing that (1) defense counsel rendered ineffective assistance and (2) the sentences are too severe.
¶ 3 In evaluating the claim of ineffective assistance, we conclude that defendant failed to show deficient performance, resulting prejudice, or both. We further conclude that the sentences are not an abuse of discretion. Therefore, we affirm the circuit court's judgment.
¶ 4 I. BACKGROUND
¶ 5 A. The Indictment
¶ 6 A grand jury indicted defendant for two offenses of predatory criminal sexual assault of a child (720 ILCS 5/11-1.40(a)(1) (West 2020)). Count I of the indictment alleged he committed the first offense between December 30, 2020, and December 14, 2021. Count II alleged he committed the second offense between December 15 and 20, 2021. In both counts, the manner of offending was contact between his penis and "the sex organ of' N.S.
¶ 7 B. Competing Accounts
¶ 8 N.S., who was 13 years old at the time of the trial, is defendant's daughter. Erika S. is her stepmother. Evidence in the jury trial tended to show that on January 10, 2022, after a presentation on "Erin's Law" in health class (see 105 ILCS 5/10-23.13 (West 2020)), N.S. told her friend O.E. and, later that day, Erika that defendant had "sexually abused" her.
¶ 9 Erika testified that N.S. never specified to her the manner of the sexual abuse. When asked, "Do you remember [N.S.] telling you that [defendant] touched her and she saw his penis?" Erika answered, "No." However, a police officer, Daniel Reilley, testified (without objection by the defense) that on January 12, 2022, when he spoke with Erika on the phone, "she specifically told [him] that [N.S.] had told her that [defendant] touched her and she saw his penis."
¶ 10 A couple of days later, when Joanna Deuth interviewed her at the Children's Advocacy Center, N.S. alleged penetration. To quote defendant's brief:
"When asked what [defendant] would do to her, N.S. said she did not like talking about it very much. [Citation.] Later, N.S. said 'he was sticking it in me.' She clarified that 'it' meant 'his long thing' or 'his private,' which he used to go to the bathroom. He put it in N.S.'s 'private,' which she said was what she used to go to the bathroom. [Citation.]"
To further quote defendant's summary of the interview:
"N.S. would be lying on her bed watching TV. [Citation.] He would pull his pants off, and N.S. would tell him to put them back on. [Citation.] He would take N.S.'s clothes off, and she would try to pull them back on, but he was stronger. [Citation.] He did not move when he stuck it in her ***. *** The defendant told N.S. not to tell Erika or else she would leave them. [Citation.] Later, N.S. said that the abuse had happened five other times in the year before Erika was in the hospital. N.S. tried to forget about it, but worked up the courage to tell [Erika] after hearing about Erin's Law. [Citation.]"
¶ 11 At trial, however, N.S. testified that the statement she had made to Deuth was untrue and that the sexual abuse never happened. N.S. had falsely accused defendant, N.S. explained, because she had been angry with him for grounding her, taking away her phone, and forbidding her to attend cheerleading. She testified she had borrowed the sex-related details from a fifth-grade friend of hers, who "had told [her] a similar experience."
¶ 12 Defendant took the stand and denied sexually abusing N.S.
¶ 13 C. Statistics on Child Sexual Abuse
¶ 14 Ken Downey was a health teacher in the Belvidere School District in Belvidere, Illinois. He testified that, on January 10, 2022, he gave N.S.'s class a presentation pursuant to Erin's Law, an Illinois statute requiring that schoolchildren be taught about sexual abuse. One of the PowerPoint slides in his presentation was People's exhibit No. 2B, titled "Child Sexual Abuse Statistics." According to this slide, which was shown to the jury, "1 in 4 girls and 1 in 6 boys are sexually abused by the age of 18," so "[i]f you don't think you know someone that this has happened to, think again." The slide further noted that, "93% of the time, the child knows the abuser," and that "9 out of 10 victims never disclose."
¶ 15 At trial, when this slide was shown, defense counsel made an irrelevancy objection. In response, the prosecutor explained, "It goes to show the effect on the listener." After comparing the "probative value" of the exhibit to the "danger of unfair prejudice" (see Ill. R. Evid. 403 (eff. Jan. 1, 2011)), the circuit court overruled defense counsel's irrelevancy objection. The court, however, gave the jury the following limiting instruction:
"So this last slide, you can't consider it for like the truth of the matter; in other words, whether or not any of this is really accurate or whether or not this explains anything going on in this trial other than simply the effect it might have on a sixth grade child who is getting the presentation from him. So again, just on the effect it might have. Not on whether any of this explains anything that happens as far as the trial goes."
¶ 16 In his posttrial motion, defense counsel did not raise the slide on child sexual abuse statistics, People's exhibit No. 2B.
¶ 17 D. A Question During Deliberations
¶ 18 Defense counsel elicited from defendant that, on December 28, 2021, in Champaign County, defendant was convicted of a felony. (The circuit court ruled earlier that the conviction would be admissible for impeachment should defendant choose to testify.)
¶ 19 The circuit court instructed the jury, "Evidence of a defendant's previous conviction of an offense may be considered by you only as it may affect his believability as a witness and must not be considered by you as evidence of his guilt of the offense with which he is charged."
¶ 20 During its deliberations, the jury sent out some written questions. Question No. 2 read, "In regards of a past felony conviction in Champaign County[,] Did the Defendant plead guilty or not guilty?" At first, with the agreement of the parties, the circuit court sent back the written reply "It's not relevant." Soon afterward, the prosecutor had second thoughts about that reply: she was concerned it might lead the jury to think that "the whole issue is not relevant." Therefore, the court proposed a further reply:" 'As a follow up to Question No. 2 posed to the Court by the jury, it is not relevant whether [defendant] pled guilty or was found guilty after a trial. As for the proper use of the conviction itself, please refer to the jury instructions.'" Both parties consented to that response, which, accordingly, was sent into the deliberation room.
¶ 21 The jury found defendant guilty of both counts of the indictment.
¶ 22 E. The Sentencing Hearing
¶ 23 1. The Prior Conviction of Criminal Sexual Abuse
¶ 24 In Champaign County case No. 20-CF-822, defendant pleaded guilty to criminal sexual abuse (720 ILCS 5/11-1.50(a)(1) (West 2020)). On March 11, 2022, in that case, he was sentenced to 30 months' imprisonment. The period of mandatory supervised release was 12 months.
¶ 25 According to a police report by Sergeant Carter of the University of Illinois police department, defendant committed this prior offense during the evening of July 21, 2020. The victim, a 43-year-old woman named Tracy, gave Sergeant Carter the following account of what had happened.
¶ 26 During the evening of July 21, 2020, defendant texted her, inviting her to join him at a tavern in Urbana, Illinois. She drove to the tavern, where they talked for hours. Defendant mentioned he "was lucky to have a job because the [United States Department of Veterans Affairs] said he was deemed mentality [ sic ] unstable." Eventually, they left the tavern. During the car ride to Tracy's apartment building, defendant "reached his hand over and put his hands between Tracy's thighs[,] causing her to jump the curb onto the sidewalk." She told him "she was going to get pulled over and to get his hands off her." After she backed her truck into a parking spot at university housing, defendant "grabbed her head and started kissing [her] forcefully[,] causing her top lip to be sore." He "then put one hand between her legs, *** held the back of her head[,] and went down and bit her right nipple." When she looked over, she saw that his "penis was out," "circumcised and erected." He "grabbed [her] hand and tried to force her to touch his penis." With her elbow, she honked the horn of her truck. He then "sat up and moved away from [her]." She got out of the truck and told him to get out. He told her to get back into the truck. After she threatened to lock him in, he got out of the truck. As she was walking away, he "came up behind her, wrapped his arms around her, turned her around, picked her up, and pinned her back against her truck on the driver's side between the two doors while holding her arms down. While she was pinned, [defendant] began kissing her." As she "was trying to shove him away," "people were looking." She managed to extricate herself, and she went to her apartment.
¶ 27 Sergeant Carter noted:
"Periodically throughout the interview Tracy became emotional and began to cry when describing certain physical characteristics of [defendant]. While Tracy was discussing the first time [he] put his hands through her legs, she began to cry describing how massive they were and how strong he was. Tracy at no point [in] time during the[ir] altercation gave consent to be kissed or touch[ed]."
¶ 28 2. Mitigation
¶ 29 The defense presented letters from relatives and acquaintances of defendant. A couple of letters mentioned his service in Afghanistan as a soldier in the United States Army, from which he was honorably discharged. Someone who described himself as a retired high school teacher wrote that defendant had "a 13-year-old special needs child for whom he has always cared *** and provided." Defendant was characterized by his mother as "a wonderful Christian person" who was a "hard worker" and who "always provided for his family." Someone who described herself as a "homemaker" wrote that defendant was a "nice," "very loving and gentle person," who she believed was "not guilty of the charges against him." N.S. wrote that defendant was her "Hero" and that she did not want to lose him. She confessed, "I know I messed up [and] lied big time. My dad would never hurt anyone. I said that becaus[e] I was mad at him." She recounted how defendant had helped her with cheerleading and Girl Scouts and how he had taught her how to ride a bike, change a tire, and tie her shoes. To her, "[i]t is like he came down from heaven to be with me." She begged the judge, "[P]lease don't take him away from me because if he is gone then I don't know how I would live." She would have no one to walk her down the aisle when she got married someday.
¶ 30 In his statement in allocution, defendant insisted he was innocent. According to defendant, the prosecutor showed her knowledge that he was innocent by making a plea offer of probation and time served. He argued that his innocence was further proven by N.S.'s recantation. She had falsely accused him, he explained, because he had taken away her phone and grounded her and because, as an adolescent, she was going through changes. She recently expressed a willingness to falsely accuse her biological mother, who had been trying to gain custody of her. N.S. remarked that she could scuttle the custody action by claiming her biological mother had done something to her. Defendant insisted he would never hurt N.S. He recalled sitting with her for days in the hospital when she caught an E. coli infection and her kidneys shut down. He did not blame N.S. for her falsehood. He loved her unconditionally. His family meant everything to him, and without them, his life would lack purpose. He pleaded with the judge, "I am asking you from one husband and father to another, man to man, please see it in your heart and do not send this humble, innocent daddy and loving husband to prison for something everyone here knows he didn't do."
¶ 31 3. The Presentence Investigation Report
¶ 32 According to the presentence investigation report, defendant had two prior criminal convictions: the conviction of criminal sexual abuse and a 2008 conviction of driving while his driver's license was suspended. From 2008 to 2011, he served in the United States Army, attaining the rank of sergeant. Because of injuries he sustained while deployed in Afghanistan-namely, shrapnel to his right knee and bullet wounds to his right chest and left leg-he was honorably discharged. He has been diagnosed with post-traumatic stress disorder (PTSD), anxiety, bipolar disorder, and depression. After his discharge from the Army, he began abusing alcohol to cope with the PTSD.
¶ 33 4. The Attorneys' Arguments
¶ 34 The prosecutor argued there were four aggravating factors.
¶ 35 First, defendant inflicted "a significant amount of emotional harm."
¶ 36 Second, other potential offenders needed to be deterred.
¶ 37 Third, defendant committed the present felonies while on pretrial release for the prior felony of criminal sexual abuse. According to records from the Champaign County circuit court, People's exhibit Nos. 1 and 2,
"[Defendant] was arrested on July 21st of 2020 or the early morning of July 22nd. Charged with the offense of criminal sexual abuse, a Class 4 felony, and aggravated battery, a Class 3 felony, and subsequently released on bond. The offenses in this case occurred between December of 2020 and December of 2021 while on bond for that Champaign County case."
¶ 38 Fourth, "defendant held a position of trust or authority or supervision in relation to the victim."
¶ 39 As for statutory factors in mitigation, the prosecutor thought the circuit court "would be hard pressed to find that any of them appl[ied] in this particular case."
¶ 40 In the prosecutor's view, defendant deserved a sentence "significantly higher than the minimum," considering that (1) there would be a "long-term effect" on N.S. "no matter what side the defendant and his family and friends choose to believe," (2) "[t]here [was] the prior sex offense which was relatively close in time to these offenses," and (3) "the offense before this Court did not just occur one time with [N.S.;] they occurred multiple times."
¶ 41 Defense counsel then made his sentencing argument. He noted that defendant "honorably served our country for a significant period of time" and that, like many veterans who returned after "seeing acts of violence and death," defendant returned "with mental issues." These mental issues would not "justify" a sexual offense, defense counsel hastened to add-but it was defendant's position that he was innocent of these charges. While "saying the conduct did not happen," defense counsel argued that "the character and attitudes of the defendant indicate that he's unlikely to commit another crime." Imprisoning defendant would inflict great hardship on his dependents, defense counsel warned. That much was evident from N.S.'s victim impact statement. Also, N.S. had a sister, who was in the custody of their biological mother. While defendant was in prison, he would be unable to keep up his child support payments. Therefore, suggesting that the mandatory consecutiveness of the sentences would be harsh enough, defense counsel urged the circuit court to punish defendant as lightly as statutory law allowed.
¶ 42 The circuit court prefaced its remarks by making clear that it was "not considering the offer made by the State to the defense when faced with a recant of the victim." To the court, it seemed
"a reasonable and *** rational trial strategy by the State to try to get something rather than nothing and to avoid the victim having to take a stand and say something different than she might have had to say otherwise and potentially-you know, at least in the State's mind having her commit perjury right here in front of everybody. So the plea offer was made presumably for that purpose and I don't find that to be unreasonable."
¶ 43 At the same time, the circuit court expressly refrained from considering defendant's rejection of the plea offer. "He maintained his innocence both before trial and there's no trial tax. There's no extra penalty for going to a trial and requiring the State to prove beyond a reasonable doubt their case." Nor, as far as the court was concerned, should there be any penalty for defendant's maintaining his innocence in his statement in allocution.
¶ 44 But what the circuit court knew it had to do was "give full respect to the verdict returned by the jury who heard all the testimony and all the evidence." The verdict was that defendant "committed predatory criminal sexual assault of a child two times." There was no going home after that verdict. "The sentence for those is mandatory [imprisonment]" for "6 to 60 years," to be served at 85%-and by statutory law, the sentences for the two counts had to be consecutive.
¶ 45 Whether consecutiveness to the Champaign County sentence was mandatory or discretionary was a question the circuit court saw no need to address since, in any event, the court chose to make the sentences in this case consecutive to the sentence in the Champaign County case:
"I'm going to make it consecutive for the reason that there is a victim in Champaign County, and if I made that concurrent, it would get engulfed, eaten up, taken in, made null, and that victim down in Champaign County's sentence, her justice, would be obliterated by the sentence here. *** I think that would be just not the right thing to do to that lady from Champaign County. She deserves to have some justice."
¶ 46 The circuit court then began parsing the aggravating factors in section 5-5-3.2(a) of the Unified Code of Corrections (725 ILCS 5/5-5-3.2(a) (West 2020)) and the mitigating factors in section 5-5-3.1(a) (id. § 5-5-3.1(a)). Some factors seemed relevant, some factors seemed obviously irrelevant, and some factors seemed of uncertain relevance. The first potential aggravating factor was that the defendant's conduct had caused or threatened serious harm. See id. § 5-5-3.2(a)(1). The court gave little weight to that factor, having not heard "a whole lot of evidence as to any emotional effect it has on [N.S.]" It would be reasonable to assume emotional harm, the court granted, but "even if there was," the court was unsure "how much you give to that because [the court had] to assume that's sort of built in and anticipated by the General Assembly when they made this a pretty harsh sentence."
¶ 47 The circuit court thought that the third aggravating factor in the statute, "a history of prior criminal activity," "does matter." See id. § 5-5-3.2(a)(3). The court told defendant:
"In fact, you shortly before this committed another sex offense on another innocent person. You were out on bond on that and came home and committed two sex offenses on your daughter after that so I do give good weight to that."
¶ 48 Also, the circuit court gave "good weight" to the seventh aggravating factor: that "the sentence is necessary to deter others from committing the same crime." See id. § 5-5-3.2(a)(7).
¶ 49 The twelfth aggravating factor was relevant, as the circuit court already had noted. Defendant was "out on bail for a felony at a time that [he] committed] a new felony and [was] convicted of both." See id. § 5-5-3.2(a)(12).
¶ 50 The fourteenth aggravating factor likewise was applicable. The victim was a family member. See id. § 5-5-3.2(a)(14).
¶ 51 On the mitigating side of the ledger, the circuit court found that "defendant's criminal conduct neither caused nor threatened serious physical harm to another." See id. § 5-5-3.1(a)(1). The court saw no reason to believe that defendant anticipated a danger of serious physical harm to N.S.
¶ 52 The seventh mitigating factor in the statute was, in the circuit court's view, "a hard one." See id. § 5-5-3.1(a)(7). Defendant "had a law-abiding life for a good chunk of his life up until these last two situations." In fact, it looked as if he were going to pursue a career in law enforcement. He was attending the police academy with Tracy. Then something "snapped"-the court did not "know what did it."
¶ 53 The circuit court found the remaining statutory factors to be inapplicable or of ambiguous applicability. For example, the ninth mitigating factor (see id. § 5-5-3.1(a)(9)) was as follows:
"Character and attitude of the defendant indicates he's unlikely to commit another crime. It's hard to say. He's got every right in the world to maintain his innocence. On the other hand, it's hard to say how that plays into this. I just don't know."
It also was unclear to the court what to do with the sixteenth mitigating factor: "mental health issues." See id. § 5-5-3.1(a)(16). Defendant never suggested that psychological problems caused him to commit the offenses or weakened his ability to refrain from the offenses. Rather, he "maintained his innocence throughout that the act simply did not happen."
¶ 54 The eighteenth mitigating factor, the family's need for support (see id. § 5 3.1(a)(18)), was, in the circuit court's view, inapplicable because "ultimately he's got to go to prison, and by the time he gets out, he won't have any children." By the time of his release, his children would be adults.
¶ 55 The circuit court finished:
"And I'm thinking the cost of incarceration. I have to consider that. I have to consider the arguments of the attorneys, your allocution, the victim, the evidence I heard at sentencing, the evidence I heard at trial, the Presentence Investigation Report.
And all those things together I'm going to impose a sentence on each, Count 1 and Count 2, of 20 years in the Department of Corrections to be served at 50 percent *** consecutive to each other and consecutive to the case in Champaign County. That's to be followed by three years to natural life of mandatory supervised release."
¶ 56 Thereafter, defendant filed a motion to reduce the sentence, which the circuit court denied.
¶ 57 This appeal followed.
¶ 58 II. ANALYSIS
¶ 59 A. People's Exhibit No. 2B
¶ 60 Defendant argues that defense counsel rendered ineffective assistance by leaving out of the posttrial motion a claim of error. In defendant's view, the posttrial motion should have raised the overruling of the irrelevancy objection to People's exhibit No. 2B, the slide of statistics on child sexual abuse. Defendant acknowledges that the circuit court gave a limiting instruction on this exhibit. Even so, he contends that "a limiting instruction does not cure an error if there is no proper purpose for which to consider the evidence."
¶ 61 But the slide could be reasonably regarded as having a proper purpose: the purpose the circuit court identified in its limiting instruction to the jury. The arguable relevance of the slide was its effect on N.S. (if the jury chose to infer such an effect).
¶ 62 Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Ill. R. Evid. 401 (eff. Jan. 1, 2011). That defendant did what the indictment alleged he did was a fact of consequence to the determination of the action. Arguably, if N.S.'s delay in reporting his wrongdoing were unexplained, the wrongdoing would have been less probable, whereas if her delay were explained, the wrongdoing would have been more probable.
¶ 63 People's exhibit No. 2B might have supplied an answer to the question: Why now? Defendant committed the offenses between December 30, 2020, and December 14, 2021, and December 15, 2021, and December 20, 2021, but it was not until January 10, 2022, that N.S. reported him. It was not that N.S. was previously unaware of the wrongfulness of child sexual abuse. Evidently, she did not need an Erin's Law presentation to tell her that fathers should not have sex with their children. She told defendant to put his pants back on. And his resort to emotional blackmail clearly presupposed he had done something wrong. If, before the Erin's Law presentation, N.S. knew that defendant had committed a wrong, what else about that presentation might have induced her to break her silence?
¶ 64 Perhaps it was a newfound hope of being believed. Being sexually abused by her own father might seem so extraordinary to a 12-year-old that she might fear her account would be rejected out of hand. Upon seeing the publicly known statistics on the prevalence of sexual abuse inflicted on children by their acquaintances, N.S. could have gained enough confidence to come forward. Learning that her account would not be perceived as implausible on its face might have enabled her to overcome her earlier reluctance. After all, we can infer that one reason why the slide was included in the Erin's Law presentation was to reassure victims that their complaints would be taken seriously and would not be dismissed. The child sexual abuse statistics could have had that intended reassuring effect on N.S.-and for that very reason, the slide was relevant to the defense as well as to the prosecution. If N.S. accused defendant truthfully, there was a good chance she would be believed. By the same token, if she accused him falsely, there was a good chance she would be believed.
¶ 65 Because a reasonable defense counsel could perceive this legitimate purpose for admitting People's exhibit No. 2B, we are unconvinced that defense counsel rendered ineffective assistance by leaving this issue out of the posttrial motion. An attorney does not render ineffective assistance by abandoning a nonmeritorious objection. See People v. Nieves, 193 Ill.2d 513, 527 (2000); People v. Segoviano, 189 Ill.2d 228, 246 (2000) ("If the claims were without merit[, the] defendant could not show prejudice even if they were waived [(i.e., forfeited)], and he thus would be entitled to no relief on this claim of ineffective assistance.").
¶ 66 Defendant points out, though, that even if evidence is relevant, it nevertheless is inadmissible if "its probative value is substantially outweighed by the danger of unfair prejudice." Ill. R. Evid. 403 (eff. Jan. 1, 2011). He argues that "[e]ven if [the slide of statistics] had some limited relevance, that probative value was substantially outweighed by the undue prejudice that the jury would use these general statistics as evidence that the defendant committed the offense at issue here." By using the statistics for that purpose, however, the jury would have disobeyed the circuit court's limiting instruction. The court instructed the jury it was not to consider the slide for its truth or accuracy but, rather, the slide could be considered only for "the effect it might have on a sixth grade child who is getting the presentation." The supreme court has held, "The jury is presumed to have followed its instructions." People v. Davis, 185 Ill.2d 317, 342 (1998). We see nothing in the record that would rebut that presumption. To accept defendant's claim of unfair prejudice, we would have to presume that the jury did not follow the limiting instruction the court gave the jury. Such a presumption would be opposite to the presumption the supreme court prescribed in Davis.
¶ 67 B. Double Hearsay
¶ 68 According to defendant, "defense counsel performed deficiently in failing to object to Sergeant Daniel Reilley's double hearsay testimony regarding what Erika had told him that N.S. told her." Erika testified that N.S. told her that defendant had "sexually abused" N.S. but that N.S. never specified to her how he had done so. Erika did not recollect being told by N.S. that defendant had "touched [N.S.]" and that N.S. had "[seen] his penis." On the other hand, Reilley testified that when he spoke with Erika on the phone, Erika told him that N.S. "had told her that [defendant] touched her and she saw his penis." Defendant argues that although Erika's testimony regarding what N.S. had told her was admissible under section 115-10 (725 ILCS 5/115-10 (West 2022)), the double hearsay in Reilley's testimony was inadmissible. Defendant claims that defense counsel rendered ineffective assistance by failing to object to the double hearsay.
¶ 69 As defendant explains, a claim of ineffective assistance has two elements: deficient performance and resulting prejudice. See Stricklandv. Washington, 466 U.S. 668, 687 (1984). The appellate court has held, "A defendant claiming ineffective assistance of counsel based on his trial counsel's failure to object to hearsay testimony cannot establish the prejudice prong of the Strickland test if the admissible evidence against the defendant is overwhelming or the inadmissible hearsay evidence is cumulative of admissible evidence." (Emphasis added.) People v. Barrera, 2021 IL App (1st) 190242-U, ¶ 56. "Even if hearsay testimony is improperly admitted, reversal is not warranted where the same matter has been proved by properly admitted evidence." People v. Torres, 18 Ill.App.3d 921, 929 (1974).
¶ 70 In a video that was played for the jury, N.S. told Deuth that defendant had vaginally penetrated her with his penis. The admissibility of the video appears to be uncontested. Because the content of the double hearsay was "proved by properly admitted evidence" (id.)-namely, Deuth's interview of N.S.-defendant cannot establish prejudice from the double hearsay in Reilley's testimony (see Barrera, 2021 IL App (1st) 190242-U, ¶ 56).
¶ 71 C. The Circuit Court's Answer to the Jury's Question
¶ 72 During its deliberations, the jury sent out a note asking, "In regards of a past felony conviction in Champaign County Did the Defendant plead guilty or not guilty?" With the approval of both attorneys, the circuit court wrote back,"' [I]t is not relevant whether [defendant] pled guilty or was found guilty after a trial. As for proper use of the conviction itself, please refer to the jury instructions.' "
¶ 73 Defendant complains that defense counsel rendered ineffective assistance by agreeing to that reply. Defendant reasons, "Since the jurors were confused after having been given the original instructions[] referring to them again would not clear up their confusion." According to defendant, a better reply to the jury would have been:
" 'Whether the defendant pled guilty or not guilty to the Champaign County case does not matter because the fact of this prior conviction is not evidence that the defendant committed the instant offense. Instead, this evidence is admitted only for the limited purpose of determining his credibility, that is, to determine whether or not his testimony is believable.' "
¶ 74 But the circuit court had already instructed the jury, "Evidence of a defendant's previous conviction of an offense may be considered by you only as it may affect his believability as a witness and must not be considered by you as evidence of his guilt of the offense with which he is charged." Because the court instructed the jury to refer to the jury instructions-including that instruction-and because the court further instructed the jury on the irrelevance of whether defendant pleaded guilty or not guilty, the presumption of regularity was reestablished. See People v. Majer, 131 Ill.App.3d 80, 83 (1985) (holding that a "presumption of regularity attaches to all trial court proceedings" unless the record rebuts the presumption). We presume the jury followed the court's instruction to (1) refer to the original instructions and (2) disregard, as irrelevant, whether defendant pleaded guilty or not guilty in the previous felony case. See Davis, 185 Ill.2d at 342. The record does not rebut the presumption of compliance with that jury instruction. See Majer, 131 Ill.App.3d at 83. So, again, defendant fails to establish prejudice.
¶ 75 D. The Reasonableness of the Sentence
¶ 76 Counts I and II were Class X felonies, each carrying a prison sentence of "not less than 6 years and not more than 60 years." 720 ILCS 5/11-1.40(b)(1) (West 2020). Under statutory law, the prison terms for these counts had to run consecutively instead of concurrently. See 730 ILCS 5/5-8-4(d)(2) (West 2020). Thus, as defendant observes, he "faced an aggregate sentencing range of 12 to 120 years." By sentencing defendant to 20 years' imprisonment for count I and another 20 years' imprisonment for count II, the circuit court sentenced him to an aggregate term of 40 years' imprisonment.
¶ 77 For four reasons, defendant contends that an aggregate prison term that was 28 years above the minimum was an abuse of discretion. See People v. Snyder, 2011 IL 111382, ¶ 36 ("[A] reviewing court may not modify a defendant's sentence absent an abuse of discretion."). First, he had an "exemplary military service" record. Second, he struggled with "mental health issues." Third, he had a child, N.S., who was very supportive of him. Fourth, he had a "minimal criminal history."
¶ 78 A sentence is an abuse of discretion if "no reasonable person would agree with it." (Internal quotation marks omitted.) People v. Lawson, 2018 IL App (4th) 170105, ¶ 28. The question, therefore, is whether the facts in this case are egregious enough that, despite the four points that defendant makes in his favor, 28 years above the minimum is reasonably defensible. This case has some facts that, it seems to us, could strike a dispassionate, fair-minded person as egregious (over and above the inherent egregiousness of predatory criminal sexual assault of a child).
¶ 79 First, the victim was defendant's daughter, whom he had a duty to protect.
¶ 80 Second, according to the account that N.S. gave to Deuth, defendant sexually abused N.S. more than the two times alleged in the indictment. Thus, these wrongs cannot be plausibly characterized as momentary lapses. He was persistent in his wrongdoing. He was persistent with N.S., and he was persistent with Tracy.
¶ 81 Third, defendant used force with N.S. (according to her statement to Deuth), as he had used force with Tracy.
¶ 82 Fourth, as N.S. recounted to Deuth, defendant tried to psychologically manipulate N.S. to save his own skin. He warned N.S. that if she told on him, Erika would leave. Arguably, there is something especially unsavory about using a child's love of her stepmother as one's shield against criminal liability.
¶ 83 Fifth, defendant committed sexual misconduct against N.S. while he was on pretrial release on a charge of sexual misconduct against Tracy, a charge of which he ultimately was convicted.
¶ 84 Considering those additional facts, we are unconvinced that two prison terms of 20 years, one for each count, are so severe as to be outside the range of reasonableness. The mitigating factors are fairly reflected in the dialing down of the punishment to 80 years below the maximum. We find no abuse of discretion in the sentences.
¶ 85 III. CONCLUSION
¶ 86 For the foregoing reasons, we affirm the circuit court's judgment.
¶ 87 Affirmed.