                                         2014 IL App (1st) 11-2207
                                              No. 1-11-2207
                                                                                       Fifth Division
                                                                                        June 27, 2014
     ______________________________________________________________________________

                                                 IN THE

                                  APPELLATE COURT OF ILLINOIS

                                            FIRST DISTRICT

     ______________________________________________________________________________

     THE PEOPLE OF THE STATE OF ILLINOIS,               )     Appeal from the Circuit Court
                                                        )     of Cook County.
                   Plaintiff-Appellee,                  )
                                                        )
           v.                                           )     No. 10 CR 11312
                                                        )
     ANTONIO ALEXANDER,                                 )     The Honorable
                                                        )     Vincent M. Gaughan,
                   Defendant-Appellant.                 )     Judge Presiding.




                PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion.
                Justices McBride and Taylor concurred in the judgment and opinion.

                                                  OPINION

¶1         Following a bench trial, defendant Antonio Alexander was convicted of criminal sexual

        assault for penetrating the vagina of his cousin G.R. with his penis by use or threat of force

        (720 ILCS 5/12-13(a)(1) (West 2010)), and after hearing factors in aggravation and

        mitigation, the trial court sentenced defendant to 14 years and 6 months in the Illinois

        Department of Corrections (IDOC). On appeal, defendant argues: (1) that his conviction

        should be reversed because the victim's testimony was insufficient to prove defendant guilty

        beyond a reasonable doubt; and (2) that the case should be remanded for resentencing
     No. 1-11-2207


        because the trial court denied both parties the opportunity to present argument at the

        sentencing hearing. For the following reasons, we affirm.

¶2                                          BACKGROUND

¶3                                        I. Pretrial Proceedings

¶4         Prior to trial, the State moved in limine to present other crimes evidence from another

        case, trial court number 10 CR 12701, pursuant to section 115-7.3 of the Code of Criminal

        Procedure of 1963 (725 ILCS 5/115-7.3 (West 2010)), which enables trial courts to allow the

        admission of evidence of other crimes to establish the propensity of defendant to commit the

        charged crime. People v. Donoho, 204 Ill. 2d 159, 175-76 (2003). Following a hearing, the

        trial court granted the State's motion because the other crimes evidence was proper to show

        propensity, the absence of mistake, motive, intent, and to rebut a consent defense.

¶5                                                II. Trial

¶6         At trial, the State presented four witnesses: (1) G.R., the victim; (2) Relunda Alexander,

        G.R.'s mother; (3) Iwona Wojas, a registered nurse who examined the victim; and (4) S.B.,

        defendant's cousin. Defendant exercised his constitutional right not to testify or to call any

        witnesses.

¶7                                         A. G.R.'s Testimony

¶8         G.R., the victim, testified that she was 24 years old at the time of the trial and that she

        lived with her three children, seven brothers, niece, and her mother. G.R. did not have her

        own bedroom in the home and usually slept on the couch in the front room. Defendant was

        G.R.'s first cousin and she identified him in court.

¶9         G.R. testified that, at 7 p.m. on May 14, 2010, she was with several friends and family

        members, including defendant, at her aunt's home near 71st Street and Marshfield Avenue in

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       No. 1-11-2207


          Chicago. G.R. periodically left the house that evening to drive round the neighborhood with

          defendant's sister. During the course of two or three hours in the home, and in defendant's

          presence, G.R. drank a six-inch-tall bottle of vodka and a three or four-inch-tall bottle of

          Long Island Iced Tea by herself, which resulted in G.R. feeling talkative, "a little drunk," and

          "a lot tipsy." G.R. stopped drinking at 10 p.m. and continued to travel in and out of her aunt's

          home for another five hours.

¶ 10         At 3 a.m., defendant's uncle "June"1 drove G.R. home. She still felt a little drunk when

          she arrived at home, so she drank a cup of water in the kitchen. G.R. checked on her children

          and niece, who were sleeping in the front room, and then went to go sleep in her brothers'

          empty bedroom. G.R. turned on the television in the bedroom and laid down on the bed. She

          then received a telephone call from her uncle, who was confused with directions to his own

          residence after he dropped G.R. off, and she provided him directions back to his home. After

          the call, G.R. fell asleep facedown on the bed over the sheets, still fully dressed in jeans and a

          shirt. G.R. left the bedroom door unlocked when she fell asleep.

¶ 11         G.R. testified that, when she awoke, the lights and television in the bedroom were turned

          off and a man was on top of her. G.R. testified, "I was *** trying to get up from the side of

          me and I couldn't get up." She could not observe who it was because she was still lying

          facedown and the room was dark. Although she was fully clothed when she went to sleep,

          her pants and underwear were down to her knees when she awoke. G.R. turned to the side

          and was finally able to push the man off her back. As she pushed the man away, she felt the

          man's penis slide out of her vagina. G.R. sat up and observed the man sitting on the side of




             1
                 "Uncle June's" full name does not appear in the appellate record.
                                                        3
       No. 1-11-2207


          the bed and leaning against the wall, and he covered his genitals with both of his hands.2

          G.R. could not identify the man until he spoke, "I'm sorry [G.R.], I'm sorry [G.R.]," and she

          immediately recognized the voice as that of defendant.

¶ 12          G.R. testified that she then stood up and tried to exit the bedroom, but the door was

          locked. She unlocked the bedroom door and ran to her mother's bedroom screaming that

          defendant was having sex with her while she was asleep. G.R.'s mother, Relunda Alexander,

          then exited from her own bed, lit a cigarette, and walked out of her bedroom saying, "No you

          didn't, Tony.3 No you didn't, Tony." From her mother's bedroom, G.R. observed defendant

          standing by the bathroom across the hall wearing dark jeans, boots, and a hooded sweatshirt

          – the same clothes he was wearing the night before. Defendant and Relunda walked into the

          kitchen together and talked for five minutes, while G.R. stayed in Relunda's bedroom,

          screaming, "How the [expletive] did he get in here?" Defendant then left the house. Relunda

          returned to her bedroom and told G.R. that she let defendant in the house so he could play

          video games.

¶ 13          G.R. testified that, moments later, she answered the telephone but hung up as soon as she

          heard defendant's voice. The telephone then rang again, but G.R. did not answer the call

          because it was from the same telephone number. G.R. walked into the kitchen and sat down,

          crying. She then called her grandmother, defendant's sister, and finally the police. When the

          police arrived, G.R. told them what happened, and an officer transported her to the hospital.

          Relunda did not accompany G.R. to the hospital and instead went to work.




              2
                G.R. did not state whether defendant's pants were on or off.
              3
                Presumably, "Tony" is short for defendant's first name Antonio, although G.R. did not
       explain this in her testimony.
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       No. 1-11-2207


¶ 14         On cross-examination, G.R. testified that, although she was a little drunk the night before

          the incident, she was not "falling over" drunk or dizzy. G.R. also admitted that she was still

          "a little" intoxicated when she awoke, but not drunk. G.R. testified that, when she woke up in

          bed with defendant on her back, she felt something inside of her but she never observed what

          it was. When asked how long it took to get defendant off of her back, G.R. explained, "It

          didn't take long because first when I tried to get him off me, I couldn't move fast, right on top

          of me again. I pushed him, got him over again. That's when I pushed him off, I felt him

          coming out of me." When asked if she had any doubt if a penis was in her vagina, she

          answered that she was "pretty sure it was his penis." G.R. testified that, although defendant

          was an inch or two away from her, she could not observe his face because the room was dark

          and defendant was wearing a hooded sweatshirt that concealed his face. However, G.R. was

          "100 percent" certain that the man's voice belonged to defendant.

¶ 15                                 B. Relunda Alexander's Testimony

¶ 16         Relunda Alexander testified that G.R. is her daughter and defendant is her nephew. On

          May 14, 2010, she lived with her six children and three grandchildren in the same home.

          That night, Relunda went to bed at 9 p.m., and her three grandchildren, all under the age of

          four, were the only other people in the house when she went to sleep. She awoke at 5 a.m. the

          next morning to the sound of someone at the front door. Relunda answered the door and

          observed defendant, who told her that he could not sleep and asked if he could come inside

          and play video games. Relunda granted defendant permission since people came over "all the

          time" to play video games. Relunda observed defendant going into the bedroom where G.R.




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       No. 1-11-2207


          was sleeping,4 and Relunda returned to her own bedroom and went back to sleep. Relunda

          identified defendant in court.

¶ 17          Relunda testified that, about five to eight minutes later, she heard G.R. calling, "Mama,

          mama, come here." Relunda "jumped up" and exited her bedroom to check on G.R. While in

          the hallway, Relunda observed defendant, fully dressed, leave the bedroom where G.R. was

          sleeping and walk into the front room. Relunda observed G.R. still in the bedroom, and G.R.

          told her that defendant was on top of her. Relunda then followed defendant into the front

          room and asked him to explain what had just happened. Defendant appeared to be confused,

          and he told Relunda that he did not know it was G.R. and repeatedly said he was sorry.

          Relunda then told defendant to leave. After defendant left, Relunda asked G.R., who was

          crying, what she wanted to do and if she wanted to call the police. G.R. initially did not

          respond and instead called Relunda's mother, who told G.R. to call the police, which G.R.

          later did. The police arrived and transported G.R. to the hospital, and Relunda left for work.

¶ 18          On cross-examination, Relunda testified that she did not speak with defendant in the

          kitchen that morning.

¶ 19                                       C. Iwona Wojas' Testimony

¶ 20          Iwona Wojas testified that, in May 2010, she was a registered nurse employed by Holy

          Cross Hospital. At 7 a.m. on May 14, 2010, Wojas met with G.R. in the hospital's emergency

          room. Wojas asked G.R. what happened to her, and G.R. related that she was sleeping and

          she awoke with someone on her back. G.R. explained to Wojas that her underwear had been

          pulled down and she felt a penis in her vagina. G.R. stated that she did not remember

          anything else because she was sleeping. G.R. did not appear intoxicated and she consented to

              4
                Relunda did not indicate in her testimony whether she knew G.R. was already asleep in
       her brother's bedroom.
                                                       6
       No. 1-11-2207


          the collection of a sexual assault kit, which is performed to find out if there is any evidence

          of the assailant on the victim. Wojas then took G.R.'s clothes, combed through her pubic hair,

          scrapped her nails, administered oral swabs, and took blood samples.

¶ 21         Wojas testified that she then assisted Dr. Amel Cambry to perform a pelvic exam on G.R.

          Wojas explained that the pelvic and visual examination of G.R.'s vaginal area revealed no

          evidence of abrasion, entry, or insertion. Wojas did not observe any visual trauma. Wojas

          explained that it is common for a rape victim to not have injuries because the vagina is

          designed to stretch to accommodate a penis, as well as stretch for child birth, and that injuries

          may depend on the amount of lubrication in the vagina.

¶ 22         On cross-examination, Wojas testified that she was not trained in determining whether a

          patient is intoxicated and she did not perform a sobriety test on G.R. Wojas also testified that

          it is more likely for there to be a tear or abrasion after a "forced entry" as opposed to

          consensual intercourse; however, on redirect examination she explained that that is not

          always true since the vagina is designed to stretch and that lubricants, either natural or

          artificial, may prevent tears or abrasions. Wojas further stated that the presence of trauma

          may also depend on whether the woman is relaxed during intercourse and that a person is

          generally relaxed while asleep.

¶ 23                                        D. Stipulated Evidence

¶ 24         Scientific evidence was introduced by stipulation. The parties stipulated that semen was

          identified in both the oral and vaginal swabs gathered from G.R. Analysis of the sample

          recovered from the vaginal swab revealed a DNA profile that did not match defendant, and

          the sample recovered from the oral swab was insufficient to produce a DNA profile suitable

          for comparison.


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       No. 1-11-2207


¶ 25                                        E. S.B.'s Testimony

¶ 26         The State called S.B. to testify to other crimes evidence. S.B. testified that she was 16

          years old and that defendant was her cousin. S.B. identified defendant in court. One night in

          May 2010, S.B. was sitting on the front porch of her family's apartment with defendant, her

          brother, and her brother's girlfriend, all of whom were smoking marijuana and drinking

          liquor. S.B. denied drinking liquor but she admitted that she was high from smoking

          marijuana.

¶ 27         S.B. testified that, later that night, S.B. went to her grandmother's former bedroom,

          locked the door, and went to sleep on the bed wearing a shirt, shorts, and underwear. S.B.

          explained that the lock on the bedroom door was a simple knob that could be unlocked using

          a finger. S.B. was alone in the bedroom when she went to sleep.

¶ 28         S.B. testified that, when she awoke, she observed that her shorts and underwear had been

          pulled down, and that defendant's head was between her legs and he was licking her vagina.

          Defendant then sat up and attempted to insert his penis into S.B.'s vagina. Defendant's penis

          touched S.B.'s vagina, but she told him to stop and she pushed him away. Defendant then left

          the bedroom without saying anything. S.B. pulled up her pants and walked into the living

          room five minutes later, where she observed her brother, his girlfriend, and defendant, but

          she did not tell them what had just happened because she was scared and did not want her

          brother to fight with defendant in the apartment. S.B. later told her cousin Jessica about the

          incident the following day.

¶ 29         On cross-examination, S.B. testified that, prior to trial, she told the assistant State's

          Attorney that she was under the influence of alcohol on the night of the incident, in addition




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       No. 1-11-2207


          to being high on marijuana. S.B. also testified that she did not receive a medical exam until

          weeks later.

¶ 30         The State rested after S.B.'s testimony, and the trial court denied defendant's motion for a

          directed finding. Defendant exercised his constitutional right not to testify.

¶ 31                                F. Closing, Conviction, and Sentence

¶ 32         At closing argument, the defense argued that G.R.'s testimony was unreliable, especially

          since there was a lack of physical evidence to corroborate her testimony. The State responded

          that defendant chose his victims based on their intoxication, and that the circumstantial

          evidence was sufficient to corroborate G.R.'s testimony that penetration occurred.

¶ 33         The trial court found that the evidence was "overwhelming" that defendant was present

          and that the State proved him guilty of criminal sexual assault beyond a reasonable doubt

          based on G.R.'s testimony that she recognized defendant's voice and other corroborative

          evidence, including defendant's repeated apologies.

¶ 34         At the sentencing hearing, the trial court denied defendant's posttrial motion for a new

          trial. The State advised the trial court that, although G.R. was present in the courtroom for

          sentencing, she declined to provide a victim impact statement. The State then told the trial

          court, "We have no additional evidence. We only have argument." In mitigation, the defense

          presented letters from defendant's wife and sister, as well as a certificate of academic

          progress from the jail's Pace staff, which acknowledged defendant's progress in math. The

          defense also stated that the presentence investigation report had been reviewed by defendant

          and that the report was accurate. Defendant made a statement in allocution and apologized to

          his family and to G.R. specifically.




                                                        9
       No. 1-11-2207


¶ 35         As the trial court began to pronounce the sentence, the State objected, stating, "I indicated

          that I had no evidence, but I did wish to argue." The trial court responded, "I don't do it like

          that. You are done." The defense did not object or otherwise express interest in argument.

          The trial court then sentenced defendant to 14 years and 6 months in the IDOC. The trial

          court admonished defendant of his right to file a motion for reconsideration, but no such

          motion was filed.

¶ 36         This appeal follows.

¶ 37                                            ANALYSIS

¶ 38         On appeal, defendant argues: (1) that his conviction should be reversed because the

          victim's testimony was insufficient to prove that defendant penetrated, or used force to

          penetrate, G.R.'s vagina beyond a reasonable doubt; and (2) that the case should be remanded

          for a new sentencing hearing because the trial court denied both parties the opportunity to

          present argument in aggravation and mitigation. For the following reasons, we affirm.

¶ 39                                    I. Sufficiency of the Evidence

¶ 40         Defendant first challenges the sufficiency of the evidence, arguing that the State did not

          prove defendant guilty of criminal sexual assault beyond a reasonable doubt because G.R.'s

          testimony was insufficient to prove that penetration occurred, and as a result, his conviction

          should be reversed. Alternatively, defendant argues that his conviction should be reduced to a

          battery since the evidence was insufficient to prove that penetration occurred by the use or

          threat of force. The State argues that G.R. was a credible witness and her testimony, along

          with other corroborative evidence, was sufficient to prove that penetration occurred by the

          use of force.




                                                      10
       No. 1-11-2207


¶ 41         When reviewing the sufficiency of the evidence in a criminal case, we must determine

          whether, after viewing the evidence in the light most favorable to the State, any rational trier

          of fact could have found the essential elements of the crime beyond a reasonable doubt.

          Jackson v. Virginia, 443 U.S. 307, 319 (1979); People v. Smith, 185 Ill. 2d 532, 541 (1999).

          "[A] reviewing court will not reverse a criminal conviction unless the evidence is so

          unreasonable, improbable or unsatisfactory as to create a reasonable doubt of the defendant's

          guilt." People v. Rowell, 229 Ill. 2d 82, 98 (2008). A reviewing court does not retry the

          defendant or substitute its judgment for that of the trier of fact with regard to the credibility

          of witnesses or the weight to be given to each witness' testimony. People v. Jackson, 232 Ill.

          2d 246, 280-81 (2009); People v. Ross, 229 Ill. 2d 255, 272 (2008). Instead, "it is our duty to

          carefully examine the evidence while bearing in mind that the trier of fact is in the best

          position to judge the credibility of witnesses, and due consideration must be given to the fact

          that the fact finder saw and heard the witnesses." People v. Herman, 407 Ill. App. 3d 688,

          704 (2011) (citing People v. Cunningham, 212 Ill. 2d 274, 280 (2004), and People v. Smith,

          185 Ill. 2d 532, 541 (1999)).

¶ 42                                      A. Evidence of Penetration

¶ 43         Defendant first claims that the State's evidence was insufficient to prove that he

          penetrated G.R.'s vagina, an element of the offense of criminal sexual assault. Section 12-

          12(f) of the Illinois Criminal Code of 1961 (Criminal Code) defines "sexual penetration" as

          "any contact, however slight, between the sex organ or anus of one person by an object, the

          sex organ, mouth or anus of another person." 720 ILCS 5/12-12(f) (West 2010). Defendant

          argues that G.R.'s testimony was unreliable because she admitted that she was intoxicated

          both before she went to sleep and after she woke up. Since G.R. testified that she was


                                                       11
       No. 1-11-2207


          intoxicated and that she never actually observed something come out of her vagina,

          defendant argues that her statement that she was merely "pretty sure" that defendant's penis

          was inside of her was nothing more than a drunken belief that something penetrated her and

          that she later concluded it was defendant's penis. Additionally, defendant claims that there is

          no physical evidence to corroborate G.R.'s testimony since the pelvic exam revealed no

          abrasions or tears that would indicate forced entry, and that DNA profile recovered from the

          vaginal swab did not match defendant. Defendant concludes that this dearth of evidence was

          insufficient to prove beyond a reasonable doubt that he penetrated G.R. We do not find this

          argument persuasive.

¶ 44         In the case at bar, a rational trier of fact could have found that defendant penetrated

          G.R.'s vagina beyond a reasonable doubt. "The testimony of a single witness, if it is positive

          and the witness [is] credible, is sufficient to convict." People v. Smith, 185 Ill. 2d 532, 541

          (1999). Here, G.R. testified that she felt defendant's penis come out of her when she pushed

          him off of her back, and when the defense asked G.R. on cross-examination if she had any

          doubt that defendant's penis was in her vagina, she responded that she was "pretty sure it was

          his penis." The trial court heard G.R.'s testimony and found her credible, and a rational trier

          of fact could have found that penetration occurred beyond a reasonable doubt.

¶ 45         Although defendant focuses on G.R.'s statement that she was only "pretty sure" that

          defendant's penis was in her vagina, which defendant suggests is not sufficient to prove

          penetration, the Criminal Code does not require the State to prove specifically what type of

          penetration occurred. People v. Harper, 251 Ill. App. 3d 801, 806 (1993) ("In a case

          involving sexual penetration, the specific type of penetration is not an element of the

          offense."); People v. Foley, 206 Ill. App. 3d 709, 718 (1990) ("The type of sexual penetration


                                                      12
       No. 1-11-2207


          is not an element of the offense," and "[t]he State need only prove that a type of sexual

          penetration occurred beyond a reasonable doubt." (Emphasis in original.)). Even if G.R. was

          uncertain whether defendant penetrated her with his penis or with another object, her

          testimony that she felt something come out of her vagina as she pushed defendant away is

          sufficient to prove the element of penetration. Other parts of G.R.'s testimony are consistent

          with penetration occurring, such as her statements: (1) that defendant was on top of her

          (People v. Raymond, 404 Ill. App. 3d 1028, 1058-59 (2010) (eyewitness testimony that

          defendant was lying on top of the victim consistent with penetration)); (2) that her shorts and

          underwear had been pulled down (People v. Bounds, 171 Ill. 2d 1, 43 (1995) (victim's state

          of undress was consistent with penetration)); and (3) her prompt outcry and her statements to

          Iwona Wojas at the hospital (People v. Wych, 248 Ill. App. 3d 818, 824 (1993) (victim's

          prompt outcry and statements to medical personnel consistent with penetration); People v.

          Bock, 242 Ill. App. 3d 1056, 1078 (1993) (same)).

¶ 46         Furthermore, although G.R. testified that she was intoxicated both before she fell asleep

          and after she woke up, the appellate record does not support the inference that she was so

          inebriated that she was unable to sense an object in her vagina. G.R. testified that she stopped

          drinking liquor at 10 p.m. the night before the incident, that she was not dizzy or "falling

          over" drunk, and that she was coherent enough to provide defendant's uncle with directions to

          his home after he dropped G.R. off before she went to sleep. She testified that she was only

          "a little" intoxicated when she awoke, and nurse Wojas testified that G.R. did not appear

          drunk when she examined G.R. at the hospital at 7 a.m.

¶ 47         Additionally, the physical evidence recovered for the sexual assault kit was not

          inconsistent with G.R.'s testimony. The parties stipulated that the lab results revealed that


                                                      13
       No. 1-11-2207


          semen was found in samples recovered from both oral and vaginal swabs, but one DNA

          profile did not match defendant and the other was unsuitable for comparison. However,

          "[e]vidence of emission of semen is not required to prove sexual penetration." 720 ILCS

          5/12-12(f) (West 2010). Here, the presence of semen could have originated from a prior

          sexual partner since G.R. did not testify that defendant ejaculated during the assault. In

          addition, a lack of vaginal trauma is not inconsistent with penetration. People v. Garcia, 2012

          IL App (1st) 103590, ¶ 89 (finding penetration without evidence of vaginal trauma).

          Although the pelvic exam did not reveal any tears or abrasions, which are often caused by

          forced entry, nurse Wojas testified that it is not common for such injuries to result from a

          sexual assault. Wojas explained that the vagina is designed to stretch, and abrasions may

          depend on how much lubrication is found in the vagina and the victim's state of relaxation.

          Wojas testified that a person is generally relaxed when she is asleep, as G.R. was asleep

          when the penetration occurred. As such, the physical evidence is not inconsistent with G.R.'s

          testimony that defendant penetrated her.

¶ 48         We also note that, while there was no corroborating witness testimony concerning the

          finding of actual penetration, there was corroborating evidence of other aspects of G.R.'s

          recounting of the events. For instance, G.R.'s mother Relunda testified that she heard G.R.

          cry out for her, stating that defendant was on top of her. Relunda then observed defendant

          emerge from the bedroom and apologize, saying that he did not know it was G.R.

          Additionally, Wojas testified that G.R. told her at the hospital that she awoke with a man on

          her back, that her pants were pulled down, and that the man's penis was in her vagina. S.B.'s

          testimony that defendant assaulted her while she was asleep is further corroboration that

          penetration occurred. People v. Cloutier, 156 Ill. 2d 483, 505-06 (1993). S.B. testified that


                                                      14
       No. 1-11-2207


          she went to sleep while high on marijuana and that she woke up to find her pants pulled

          down and defendant licking her vagina. S.B. testified that defendant then attempted to insert

          his penis into her vagina and that she pushed him away to stop him. S.B's testimony is similar

          to G.R.'s account since both victims fell asleep intoxicated with either liquor or drugs and

          woke up with their pants and underwear pulled down and felt defendant in contact with their

          genitals. This evidence of other crimes corroborated G.R.'s account and established the

          propensity of defendant to commit the charged crime. Donoho, 204 Ill. 2d at 175.

¶ 49         Defendant argues that Relunda's testimony is unconvincing because she observed

          defendant standing in the hallway fully dressed shortly after awaking to her daughter's cries.

          However, G.R. never testified whether or not defendant had his pants on during the assault,

          but she stated that he was wearing a hooded sweatshirt that concealed part of his face. The

          fact that Relunda observed defendant in the hallway fully clothed does not discredit G.R.'s

          testimony because it may have taken defendant only a matter of seconds to pull up and fasten

          his pants by the time Relunda observed him exit the bedroom. Defendant also claims that

          S.B.'s testimony was not credible because she was high at the time of the alleged assault.

          However, there is nothing in S.B.'s testimony that suggests that she was so intoxicated that

          she misperceived the entire incident the next morning.

¶ 50         As stated, the trial court observed G.R. testify and it found her to be credible. We cannot

          say that the evidence at trial was so unreasonable, improbable, or unsatisfactory as to give

          rise to a reasonable doubt that penetration occurred, and we decline to reverse defendant's

          conviction as a result.




                                                     15
       No. 1-11-2207


¶ 51                               B. Evidence of Use or Threat of Force

¶ 52         Defendant alternatively claims that, even if penetration occurred, the evidence was

          insufficient to prove that defendant used physical force to complete the assault. In the case at

          bar, defendant was convicted of criminal sexual assault pursuant to section 12-13(a)(1) of the

          Criminal Code, which states, "The accused commits criminal sexual assault if he or she ***

          commits an act of sexual penetration by the use of force or threat of force ***." 720 ILCS

          5/12-13(a)(1) (West 2010). A conviction for criminal sexual assault cannot be sustained by

          merely establishing that the victim did not consent. People v. Haywood, 118 Ill. 2d 263, 274

          (1987). Force is the essence of the crime of rape. People v. Taylor, 48 Ill. 2d 91, 100 (1971).

          The Criminal Code states that "the use of force or violence, or the threat of force or violence"

          includes, but is 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 believed that the accused had the ability to execute that threat; or

          (2) when the accused has overcome the victim by use of superior strength or size, physical

          restraint or physical confinement." 720 ILCS 5/12-12(d) (West 2010). "There is no definite

          standard establishing the amount of force which the State is required to prove in order to

          prove criminal sexual assault, and each case must be considered on its own facts." People v.

          Vasquez, 233 Ill. App. 3d 517, 527 (1992) (citing People v. Bolton, 207 Ill. App. 3d 681, 686

          (1990); People v. Nelson, 148 Ill. App. 3d 811, 820 (1986)).

¶ 53         Defendant argues that, even if G.R.'s testimony is credible, there is no evidence in her

          account that defendant used force to penetrate her. G.R. testified that she awoke on her

          stomach, still intoxicated, with a man on her back. She then attempted to push him off of her

          but was slow to do so. Defendant argues that this is because she had just woke up and was


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          intoxicated and groggy, and not the result of defendant forcing himself on her. Defendant

          argues that, once G.R. woke up, he did not use any force to penetrate her, and that the only

          action that occurred was G.R. pushing him away. As a result, defendant argues the evidence

          was insufficient to prove him guilty of criminal sexual assault. Defendant also notes that,

          although one may be guilty of criminal sexual assault under section 12-13(a)(2) for having

          sex with a victim who is asleep, defendant was instead charged under section 12-13(a)(1),

          which requires the use of force. Nevertheless, defendant argues that his conviction should be

          reduced to a battery since there was no evidence of force.

¶ 54         However, defendant used force to penetrate G.R. because he used his weight while lying

          on top of G.R. to continue the act of penetration. "Force" within the meaning of section 12-

          12(d) requires something more than the force inherent in the sexual penetration itself. People

          v. Denbo, 372 Ill. App. 3d 994, 1007 (2007). A person can "passively force someone to

          continue with the sex act by using one's bodily inertia to prevent [the victim] from

          disengaging." Denbo, 372 Ill. App. 3d at 1008. Here, G.R. testified that when she awoke, she

          could not get up because defendant was on top of her. At this point, defendant was using his

          weight to continue the act of penetration while G.R. unsuccessfully attempted to stop him.

          The trial court heard G.R.'s testimony and found her credible, and we cannot say that no

          rational trier of fact could find that force was used to complete the sexual assault based on

          G.R.'s testimony. As a result, the evidence was sufficient for a guilty finding of penetration

          beyond a reasonable doubt, and we affirm defendant's conviction.

¶ 55         Defendant compares this case to Vasquez, where the appellate court reversed defendant's

          conviction for aggravated sexual assault because the State did not prove the element of force.

          Vasquez, 233 Ill. App. 3d at 529. The appellate court noted that the only evidence tending to


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          show force was the 13-year-old male victim's testimony that the defendant placed his hand

          on the back of the victim's head and forced his head down onto the defendant's penis.

          Vasquez, 233 Ill. App. 3d at 527. The appellate court found that no rational trier of fact could

          have found the element of force was proven beyond a reasonable doubt since the victim

          admitted that the defendant did not threaten or hurt him and that he did not resist the

          defendant's efforts. Vasquez, 233 Ill. App. 3d at 527. Defendant also cites People v. Warren,

          113 Ill. App. 3d 1, 4-5 (1983), where the State failed to show "force or threat of force" where

          the taller and heavier defendant told the victim " 'I don't want to hurt you,' " lifted the victim

          and carried her toward a wooded area, pulled down her pants, and kissed her breasts and

          vaginal area. Defendant argues that the State presented even less evidence of force in the

          instant case than in Vasquez and Warren because G.R. was asleep when the assault began,

          awoke to find defendant on top of her, and felt a penis come out of her as she pushed him off.

          Defendant argues that there is nothing in G.R.'s testimony to support the claim that force was

          used to penetrate her because she was asleep throughout the assault, and that defendant made

          no attempt to continue the act when she woke up and that he instead retreated to the wall and

          covered his genitals, apologizing.

¶ 56         However, Vasquez and Warren are factually distinguishable because, contrary to

          defendant's claim, there was ample evidence of force since G.R.'s testimony indicates that

          defendant used his position and weight to continue the act of penetration while she attempted

          to push him away. The appellate court's discussion of withdrawn consent in Denbo, 372 Ill.

          App. 3d at 1007, is instructive here. In that case, the appellate court found that the actions of

          the female defendant, by sitting on top of the victim and not removing her hand from the

          victim's vagina, constituted force beyond what is inherent to the sex act itself. Denbo, 372 Ill.


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       No. 1-11-2207


          App. 3d at 1007. Although this case does not involve the issue of withdrawn consent, the

          appellate court discussed the element of force with a hypothetical: "[I]f B wishes to have sex

          no longer, B will surely disengage if he or she is able to do so, and if, by his or her physical

          posture, A prevents B from disengaging – for example, by continuing to lie on top of B

          [citation] – A thereby forces B to continue with the sexual penetration." Denbo, 372 Ill. App.

          3d at 1007. The Denbo court concluded that, "One can, in a manner of speaking, passively

          force someone to continue with the sex act by using one's own bodily inertia to prevent the

          partner from disengaging. This would be force beyond that inherent to the sex act itself."

          Denbo, 372 Ill. App. 3d at 1008. In the instant case, defendant used his position and body

          weight as inertia to prevent G.R. from disengaging after she woke up. Although the State did

          not provide evidence concerning the respective height and weight of G.R. and defendant,

          G.R.'s testimony reveals that she struggled to free herself while defendant was lying on her

          back. As a result, defendant used force beyond the initial sex act to continue penetrating G.R.

          even as she attempted to push him away. We cannot say that the evidence at trial was so

          unreasonable, improbable, or unsatisfactory as to give rise to a reasonable doubt that

          defendant used force to penetrate G.R., and we decline to reverse defendant's conviction as a

          result.

¶ 57                         II. Opportunity to Argue at the Sentencing Hearing

¶ 58          Next, defendant argues that this case should be remanded for resentencing because the

          trial court denied both parties the opportunity to present argument at the sentencing hearing.

          Section 5-4-1(a)(5) of the Illinois Unified Code of Corrections (730 ILCS 5/5-4-1(a)(5)

          (West 2010)) provides that, at a sentencing hearing within a felony proceeding, "the court

          shall *** hear arguments as to sentencing alternatives." Defendant argues that the word


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          "shall" signifies that argument is a mandatory component of a sentencing hearing, and that

          the trial court committed reversible error when it denied the parties and opportunity to argue.

          Although defendant concedes that he is unaware of any case law directly concerning the

          mandatory nature of section 5-4-1(a)(5), he contends that it should be treated similarly to the

          requirement that the trial court must order and review a presentence investigation report prior

          to the imposition of a sentence. People v. Youngbey, 82 Ill. 2d 556, 565 (1980) (finding that a

          presentence report is for the "enlightenment of the court," as well as or the benefit of the

          defendant). As a result, defendant claims that this case should be remanded for a new

          sentencing hearing since the defense was not provided an opportunity to present argument,

          citing People v. Hammonds, 21 Ill. App. 3d 5, 7-8 (1974) (remanding case for resentencing

          where the trial court did not consider a presentence investigation report, hear evidence in

          mitigation or aggravation, or allow argument as to sentencing alternatives) and People v.

          Sterling, 62 Ill. App. 3d 986, 990-91 (1978) (remanding case for resentencing where the

          defense's argument at the sentencing hearing was restricted and defendant was barred from

          making a statement in allocution).

¶ 59         However, defendant has forfeited this issue on appeal because he neither objected at trial,

          nor filed a posttrial motion preserving the issue. "[T]o preserve a claim of sentencing error,

          both a contemporaneous objection and a written postsentencing motion raising the issue are

          required." People v. Hillier, 237 Ill. 2d 539, 544 (2010). See also 730 ILCS 5/5-8-1(c) (West

          2006) ("[a] defendant's challenge to the correctness of a sentence or to any aspect of the

          sentencing hearing shall be made by a written motion filed within 30 days following the

          imposition of sentence"). The challenge is considered waived on appeal if a defendant fails to

          satisfy either prong of this test. People v. Enoch, 122 Ill. 2d 176, 186 (1988). "[T]he plain-


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       No. 1-11-2207


          error doctrine allows a reviewing court to consider 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). In a plain error

          analysis, "it is the defendant who bears the burden of persuasion." People v. Woods, 214 Ill.

          2d 455, 471 (2005). However, in order to find plain error, we must first find that the trial

          court committed some error. Piatkowski, 225 Ill. 2d at 565 ("the first step is to determine

          whether error occurred").

¶ 60         In the instant case, the defense neither objected at trial that it was barred from arguing at

          the sentencing hearing, nor did it file a posttrial motion raising the issue. As a result,

          defendant has waived the issue on appeal. Defendant argues that the waiver rule should be

          relaxed in this case because the defense did not have an opportunity to object where the trial

          court announced the sentence immediately after defendant's statement in allocution.

          However, the appellate record indicates the defense had ample opportunity during the

          sentencing hearing to object, including well before the State's objection, and the defense

          never once expressed interest in arguing. We note that this may have been a strategic

          decision since the defense presented evidence in mitigation, while the State presented

          nothing at all. Defendant also argues that an objection would have been futile because the

          trial court already overruled the State's objection. People v. Taylor, 357 Ill. App. 3d 642, 647

          (2005) (finding that "the fundamental importance of a fair trial and the practical difficulties

          involved in objecting to the trial court's conduct compel a less rigid application of the waiver


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       No. 1-11-2207


          rule"). However, the trial court's response, "You are done," was clearly directed at the State's

          objection that it did not receive an opportunity to argue as it requested, and the trial court did

          not explicitly bar defendant from arguing.

¶ 61         Defendant additionally argues that his claims should be considered under the second

          prong of the plain error analysis because defendant has a substantial right to a fair sentencing

          hearing. People v. Herron, 215 Ill. 2d 167, 187 (2005) (plain error doctrine allows a

          reviewing court to consider unpreserved errors that are so serious that they challenge the

          integrity of the judicial process); People v. Blue, 189 Ill. 2d 99 (2000). See also People v.

          Simms, 143 Ill. 2d 154, 170 (1991) (plain error in jury instructions was sufficiently grave to

          have deprived defendant of a fair sentencing hearing).

¶ 62         As stated, "the first step is to determine whether error occurred." Piatkowski, 225 Ill. 2d

          at 565. Here, the trial court did not commit an error that prejudiced defendant since it did not

          bar the defense from presenting argument. At the sentencing hearing, the State declined to

          present any evidence and instead informed the trial court that it only wished to argue. The

          defense then presented evidence in mitigation, but it did not argue or request an opportunity

          for argument. As the trial court began to pronounce the sentence, the State objected and

          advised the trial court that it still wished to argue, to which the trial court responded, "I don’t

          do it like that. You are done." It is clear from this exchange that the trial court only

          disallowed the State's argument when it denied the State's request stating, "You are done."

          (Emphasis added.) Since the defense presented evidence but never requested argument, the

          trial court did not prevent the defense from presenting argument at the sentencing hearing.

¶ 63         Defendant claims that the trial court did in fact bar both parties from arguing because the

          "you" in that phrase "you are done" was plural and directed at both parties. Also, defendant


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          claims that the trial court's statement, "I don’t do it like that," served as a blanket prohibition

          against argument for both parties. However, " '[t]he plain error exception will be invoked

          only where the record clearly shows that an alleged error affecting substantial rights was

          committed.' " (Emphasis in original.) People v. Hillier, 237 Ill. 2d 539, 549 (2010) (quoting

          People v. Hampton, 149 Ill. 2d 71, 102 (1992)). Even if defendant is correct that the trial

          court's statements were equivocal, they still would not amount to a clear and obvious error,

          which is required to find plain error. Here, the appellate record shows that the trial court was

          addressing the State and responding to its request for argument, and that it then denied only

          the State the opportunity to argue. As such, the trial court did not err because it did not bar

          defendant from presenting argument at the sentencing hearing, and we affirm defendant's

          conviction and sentence.

¶ 64                                            CONCLUSION

¶ 65         For the foregoing reasons, we find that: (1) the State proved beyond a reasonable doubt

          that defendant penetrated G.R.'s vagina and used force to continue that penetration; and (2)

          that defendant was not prejudiced when the trial court denied the State an opportunity to

          argue at the sentencing hearing. As a result, we affirm defendant's conviction and sentence.

¶ 66         Affirmed.




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