                                   2018 IL App (4th) 160255                       FILED
                                                                             September 27, 2018
                                         NO. 4-16-0255                           Carla Bender
                                                                             4th District Appellate
                                IN THE APPELLATE COURT                             Court, IL

                                         OF ILLINOIS

                                      FOURTH DISTRICT

 THE PEOPLE OF THE STATE OF ILLINOIS,                      )   Appeal from the
        Plaintiff-Appellee,                                )   Circuit Court of
        v.                                                 )   Sangamon County
 QUENTIN BATES,                                            )
        Defendant-Appellant.                               )   No. 11CF953
                                                           )
                                                           )   Honorable
                                                           )   John P. Schmidt,
                                                           )   Judge Presiding.


               JUSTICE STEIGMANN delivered the judgment of the court, with opinion.
               Justices DeArmond and Turner concurred in the judgment and opinion.

                                           OPINION

¶1             In November 2011, the State charged defendant with (1) home invasion, (2) ag­

gravated criminal sexual assault (penis to mouth), and (3) aggravated criminal sexual assault

(penis to vagina). 720 ILCS 5/12-11(a)(1) (West 2010); id. § 11-1.30(a)(1). The State alleged

that in September 2011, defendant, while armed with a knife, broke into A.P.’s dwelling and

sexually assaulted her.

¶2             In October 2013, the State filed notice of intent to use evidence of other sex of­

fenses. 725 ILCS 5/115-7.3(b) (West 2012). In pertinent part, the State alleged that, in October

2011, defendant, while armed with a knife, broke into C.H.’s dwelling and sexually assaulted

her. In November 2013, the trial court granted the State’s motion.

¶3             In January 2016, the State filed a motion in limine to exclude evidence of A.P.’s

past sexual conduct. 725 ILCS 5/115-7(a) (West 2016). In response, defendant argued that semen
found on A.P.’s vaginal swab that came from an unidentified male should not be excluded. The

trial court granted the State’s motion in limine.

¶4             In January 2016, a Sangamon County jury convicted defendant on all charges. In

March 2016, defendant filed a motion for a new trial. The trial court denied the motion for a new

trial and sentenced defendant to 30 years for home invasion, 40 years for aggravated criminal

sexual assault (penis to vagina), and 30 years for aggravated criminal sexual assault (penis to

mouth), with the sentences to run concurrently.

¶5             Defendant appeals, arguing (1) he received ineffective assistance of counsel,

(2) he was denied his constitutional right to confront witnesses, (3) he should receive a new trial

because the State mentioned other sexual assaults that occurred in the area, (4) the amount of ev­

idence presented regarding C.H. deprived him the right to a fair trial, and (5) the trial court erred

by failing to conduct a Krankel hearing (see People v. Krankel, 102 Ill. 2d 181, 188-89, 464

N.E.2d 1045, 1048-49 (1984)). We disagree and affirm.

¶6                                      I. BACKGROUND

¶7                                       A. The Indictment

¶8             In November 2011, the State charged defendant with (1) home invasion,

(2) aggravated criminal sexual assault (penis to mouth), and (3) aggravated criminal sexual as­

sault (penis to vagina). 720 ILCS 5/12-11(a)(1) (West 2010); id. § 11-1.30(a)(1). The State al­

leged that in September 2011, defendant, while armed with a knife, broke into A.P.’s dwelling

and sexually assaulted her.

¶9                                B. The State’s Notice of Intent

¶ 10           In October 2013, the State filed notice of intent to use evidence of other sex of­

fenses. 725 ILCS 5/115-7.3(b) (West 2012). The State’s motion stated the following:



                                                -2­
       “It is alleged in this case that on September 19, 2011, the victim, A.P., ***

awoke to find a black male holding a knife. The male threatened her with the

knife and then placed his penis in her mouth. He also choked her with his hands

and placed his penis in her vagina. *** It was determined that the male had en­

tered through a bedroom window. While [the victim] was seeking treatment at the

hospital, swabs were taken from the victim and sent to the Illinois State Police Fo­

rensic Science Crime Laboratory. Testing of one of the swabs revealed the pres­

ence of semen. DNA testing was conducted on this specimen and it was deter­

mined that the defendant *** could not be excluded as a contributor of the identi­

fied male DNA[.]

       The defendant is also charged in Sangamon County Circuit Court case

number 11-CF-888 with Home Invasion, two counts of Aggravated Criminal

Sexual Assault, and Residential Burglary.

       In 11-CF-888 it is alleged that on October 6, 2011, the victim, C.H., was

asleep in bed *** and awoke to find a black male holding a knife to her throat.

The male *** put his mouth on her neck, breasts, and vagina *** and choked her.

*** It was determined that he had entered the residence through a window. While

seeking treatment at the hospital, swabs were taken from the victim and sent to

the Illinois State Police Forensic Crime Science Laboratory. Testing on one of the

swabs revealed the presence of DNA which was a match to the DNA of the de­

fendant[.]

       The probative value of the proposed evidence outweighs any undue preju­

dice *** as demonstrated by the proximity in time between the two incidents, the



                                -3­
               degree of factual similarity between the two incidents, as well as other relevant

               factors and circumstances.”

¶ 11           Defendant argued the two crimes were dissimilar and that introduction of evi­

dence from this second crime would be unfairly prejudicial. In November 2013, the trial court

granted the State’s motion, concluding that there was a “strong similarity” between the two

crimes and that the probative value outweighed any prejudicial effect. Accordingly, the court al­

lowed the State to introduce this other-crime evidence as long as it was otherwise admissible.

The court later denied defendant’s motion to reconsider.

¶ 12                             C. The State’s Motion in Limine

¶ 13           In January 2016, the State filed a motion in limine to exclude evidence of A.P.’s

past sexual conduct. 725 ILCS 5/115-7(a) (West 2016). In this motion, the State conceded that

“DNA evidence was found on the victim *** and her clothing that was traced to having originat­

ed from three separate individuals besides Defendant and A.P. Further, A.P. acknowledges hav­

ing had prior sexual relations with individuals prior to the night of the alleged offense in the pre­

sent case.”

¶ 14           In response, defendant conceded that the two samples of DNA evidence found on

A.P.’s clothing were from consensual sexual partners and that this evidence should be excluded.

However, defendant argued that the third DNA sample, which was semen from an unidentified

male found on A.P.’s vaginal swab, should not be excluded because “the victim says she was

*** vaginally assaulted.”

¶ 15           Later that month, the trial court granted the State’s motion in limine, concluding

that the “evidence is coming in solely to show prior sexual history and that is clearly *** prohib­

ited by the Rape Shield Statute.” See id.



                                                -4­
¶ 16           Defendant would later make an oral motion to reconsider, arguing that the other

DNA found on A.P.’s vaginal swab was evidence that an individual other than defendant was

responsible for assaulting A.P. The trial court denied this motion.

¶ 17                                     D. The Jury Trial

¶ 18           In January 2016, this case proceeded to a jury trial.

¶ 19                          1. The Evidence of the Attack on A.P.

¶ 20           A.P. testified that on the night of September 19, 2011, she was asleep in her

apartment in Springfield, Illinois. She awoke to find a black male with his face covered ap­

proaching her. The man put his hands around her neck and touched her side with a knife. The

man grabbed A.P., turned her over, and put his penis into her vagina. The man eventually threw

her to the ground and told her to perform oral sex upon him. The man subsequently turned A.P.

over, put his penis back into her vagina, and eventually ejaculated on her back. A.P. testified that

she never got a good look at the man because his face was covered.

¶ 21           When the man left, A.P. called the police. Police officers testified that they found

a knife in the bedroom. A.P. was taken to a hospital, and nurse Theresa Duncan testified that she

swabbed A.P.’s mouth, vagina, vaginal area, and outer anal area for bodily fluids. Duncan noted

that defendant’s DNA was later discovered on the anal swab. She stated that it would be normal

to find sperm cells on an anal swab even if there was not anal penetration.

¶ 22           Cory Formea, a forensic scientist for the Illinois State Police Crime Lab, testified

that sperm cells were found on A.P.’s anal swab. He concluded that defendant could not be ex­

cluded as the contributor of the DNA and that this DNA profile would occur in “one in [every]

840 trillion blacks[.]” Formea conceded that defendant’s DNA was not found on A.P.’s oral or

vaginal swab. Brian Johnston, a detective for the Springfield Police Department, testified that he



                                               -5­
investigated the attack on A.P.

¶ 23                           2. The Evidence of the Attack on C.H.

¶ 24            Mike Flynn, an investigator for the Springfield Police Department, stated that he

investigated the attack on C.H. He stated that C.H. was asleep in her home on October 6, 2011,

and was sexually assaulted. Flynn testified that he believed that the person responsible for the

attack on C.H. may have been responsible for the attack on A.P. because of the similarity be­

tween the two attacks.

¶ 25            C.H. testified that on the night of October 6, 2011, she awoke to find a black male

holding a knife to her throat. The man licked her breasts and vagina and stole money from her.

After he left, C.H. called the police and went to the hospital.

¶ 26            A nurse testified that she examined and swabbed C.H.’s neck, chest, breasts, and

genitals at the hospital. Dana Pitchford, a forensic scientist for the Illinois State Police, noted that

saliva was found on C.H.’s chest swab. She testified that the male DNA found in the saliva

matched defendant’s DNA. She elaborated that “this profile would be expected to occur in ap­

proximately one in 2.8 quintillion black[s].”

¶ 27                                 3. The Interrogation Video

¶ 28            On the first day of trial, outside the presence of the jury, defendant made an oral

motion to exclude the video of his interrogation for the alleged sexual assault of C.H. Defendant

argued that the video had no probative value and was prejudicial. The trial court denied the mo­

tion.

¶ 29            On the second day of trial, before the video was played to the jury, the State in­

formed the trial court that it had modified the video to “take out certain items that were objec­

tionable by the defense.” Defendant consented to the introduction of this modified video.



                                                 -6­
¶ 30             During the modified interrogation video, Flynn and Brian Johnston accused de­

fendant of sexual assault. They informed him that they had a solid case against him because his

DNA was found on an alleged victim of sexual assault. They stated they believed he was respon­

sible for the alleged assault on C.H. and implied that he was responsible for other sex crimes.

The video also contained allegedly prejudicial information such as (1) defendant’s admission that

he was on welfare, (2) defendant’s explicit description of his sexual history, (3) defendant’s ad­

mission that he had cheated on romantic partners, (4) the police accusations that defendant was

guilty, and (5) the mentioning of other sexual assaults that had occurred throughout the state.

¶ 31             However, at all times on the modified interrogation video, defendant remained

adamant that he did not sexually assault anyone. Instead, after describing his numerous sexual

conquests, defendant argued that he would never rape anyone because he can get all the sex he

ever needed. Defendant repeatedly and vigorously denied ever committing rape or sexual assault.

¶ 32                                       4. The Defense

¶ 33             Defendant declined to testify on his own behalf. James Ravellette, a forensic sci­

entist, testified that defendant’s DNA was not found on A.P.’s vaginal or oral swab. On cross-

examination, Ravellette conceded that defendant could not be excluded as the contributor of the

DNA from A.P.’s anal swab. Moreover, Ravellette conceded that the DNA profile on the anal

swab would only occur in one out of every 840 trillion individuals “[i]n the African[-]American

population[.]”

¶ 34                                    5. The Guilty Verdict

¶ 35             The jury convicted defendant of home invasion and of both counts of aggravated

criminal sexual assault.

¶ 36                 E. The Motion for a New Trial and Defendant’s Sentence



                                                -7­
¶ 37           In March 2016, defendant filed a motion for a new trial, arguing the trial court

erred by (1) allowing in evidence of C.H.’s attack and (2) granting the State’s motion to exclude

any reference to the unknown semen found on A.P.’s vaginal swab.

¶ 38           In April 2016, the trial court conducted a hearing on the motion, and defendant

argued that the court should grant a new trial because there was “a trial within a trial” regarding

the issue of whether defendant assaulted C.H. While making this argument, defendant’s attorney

stated the following:

               “[W]e had a trial within a trial when you allowed testimony [regarding C.H.’s

               case]. The thing that really bothers me *** is that [defendant] had another attor­

               ney [in the case where the State charged defendant with assaulting C.H.]. I was

               not [the] attorney [in that case]. So all the testimony about [C.H.’s assault] *** I

               was generally aware, of course, but I couldn’t possibly do as good a job defending

               my client since it wasn’t my case. So I think that perhaps we all should have

               thought of that, State’s Attorney as well. But I think that is first and foremost a

               reason for a new trial.

                        I was taken by surprise at the depth of the evidence and testimony brought

               by the State’s Attorney *** [regarding the other] alleged victim, forensic scien­

               tists, I had no chance to review that. As you know, had I been thinking about that

               case, I would have asked for review by our own experts. So that alone, I think, is

               reason for a new trial.”

¶ 39           The trial court denied the motion for a new trial and sentenced defendant to 30

years for home invasion, 40 years for aggravated criminal sexual assault (penis to vagina), and

30 years for aggravated criminal sexual assault (penis to mouth), with the sentences to run con­



                                               -8­
currently.

¶ 40           This appeal followed.

¶ 41                                       II. ANALYSIS

¶ 42           Defendant appeals, arguing (1) he received ineffective assistance of counsel,

(2) he was denied his constitutional right to confront witnesses, (3) he should receive a new trial

because the State mentioned other sexual assaults that occurred in the area, (4) the amount of ev­

idence presented regarding C.H. deprived him of the right to a fair trial, and (5) the trial court

erred by failing to conduct a Krankel hearing. We address these issues in turn.

¶ 43                            A. Ineffective Assistance of Counsel

¶ 44           Defendant argues that he received ineffective assistance of counsel because his

attorney failed to object to the introduction of the modified interrogation video. Alternatively,

defendant argues that he received ineffective assistance of counsel because his attorney failed to

file a motion to suppress the interrogation video prior to the start of trial. We disagree.

¶ 45                                   1. The Applicable Law

¶ 46           To establish ineffective assistance of counsel, a defendant must show that coun­

sel’s performance was (1) deficient and (2) prejudicial. People v. Thomas, 2017 IL App (4th)

150815, ¶ 10, 93 N.E.3d 664. When, as here, a claim of ineffective assistance of counsel was not

raised in the trial court, our review is de novo. People v. Lofton, 2015 IL App (2d) 130135, ¶ 24,

42 N.E.3d 885.

¶ 47           To establish deficient performance, a defendant must show that his attorney’s per­

formance fell below an objective standard of reasonableness. Id. Judicial review of counsel’s

performance is highly deferential. People v. McGath, 2017 IL App (4th) 150608, ¶ 38, 83 N.E.3d

671. A defendant must overcome the strong presumption that the challenged action or inaction



                                                 -9­
may have been the product of sound trial strategy. People v. Manning, 241 Ill. 2d 319, 327, 948

N.E.2d 542, 547 (2011). Trial strategy includes decisions such as what matters to object to and

when to object. People v. Ramsey, 2017 IL App (1st) 160977, ¶ 36, 86 N.E.3d 1068.

“[C]ounsel’s strategic choices are virtually unchallengeable.” Manning, 241 Ill. 2d at 333.

¶ 48           To establish prejudice, the defendant must show that, but for counsel’s errors,

there is a reasonable probability that the result of the proceeding would have been different. Peo­

ple v. Houston, 229 Ill. 2d 1, 4, 890 N.E.2d 424, 426 (2008). In the context of failure to file a

motion to suppress, prejudice arises when a defendant demonstrates (1) that the unargued sup­

pression motion would have been meritorious and (2) that a reasonable probability exists that the

outcome of the trial would have been different had the evidence been suppressed. People v. Hen­

derson, 2013 IL 114040, ¶ 15, 989 N.E.2d 192. A reasonable probability is defined as a probabil­

ity which undermines confidence in the outcome of the trial. See id. Failure to satisfy either

prong precludes a finding of ineffective assistance of counsel. People v. Fellers, 2016 IL App

(4th) 140486, ¶ 23, 77 N.E.3d 994.

¶ 49                                       2. This Case

¶ 50           First, defendant fails to demonstrate that his attorney’s performance was deficient.

Manning, 241 Ill. 2d at 327. Regarding the failure to file a motion to suppress and the failure to

object to the modified video, counsel could have reasonably concluded that defendant’s repeated

denials and justifications for why he would not have committed sexual assault vastly outweighed

the collateral prejudice. We acknowledge that the modified video had potentially prejudicial

elements such as (1) defendant’s admission that he was on welfare, (2) defendant’s explicit

description of his sexual history, (3) defendant’s admission that he had cheated on romantic

partners, (4) the police accusations that defendant was guilty, and (5) the mentioning of other



                                              - 10 ­
sexual assaults throughout the state. However, despite these potentially prejudicial elements, the

video contained defendant’s frequent and vehement denials that he ever committed sexual

assault. These denials could certainly have been viewed by the jury as undermining the State’s

case and had the potential to be particularly significant because defendant chose not to testify at

trial. Thus, defendant’s vehement denials that he committed these crimes came before the jury

solely as a result of the admission of the modified video.

¶ 51           Further, as opposed to in-court testimony, such denials were not subject to the

State’s cross-examination or impeachment at trial. Defense counsel’s strategic use of the modi­

fied video is shown by his closing argument, which reads as follows:

                       “The video that we saw of [defendant] was obviously brought to make him

               look bad, discredit him. But the thing that I noticed about that two-hour tape was

               that he was very consistent. He didn’t know he was going to be arrested. He was

               very consistent. He maintained that he didn’t know anything about this event that

               the police officers were inquiring about. And they used all the techniques that po­

               lice officers can and often do. And after over two hours, I didn’t see that he made

               any admission or any suggestion that he was involved in this event. So I think it

               should be clear to you that even though [defendant] did not testify, clearly ***

               you can see that at an early time in the investigation that he knew nothing of this

               incident with either lady.”

¶ 52           As to why counsel initially objected at trial but failed to file a pretrial motion to

suppress, we first note that trial strategy includes decisions such as when to object. Ramsey, 2017

IL App (1st) 160977, ¶ 36. Moreover, as compared to a motion to suppress filed weeks in ad­

vance, counsel may have made this oral objection in order to gain a last-minute concession from



                                               - 11 ­
the State. In that regard, counsel was apparently successful because the State voluntarily re­

moved otherwise irrelevant and prejudicial material from the video the day before it was sched­

uled to be played to the jury. For the reasons stated, we conclude that defendant fails to demon­

strate that his counsel’s performance was deficient.

¶ 53           Second, defendant fails to establish prejudice. Defendant’s link to the sexual as­

sault on C.H., which was admissible to show defendant’s propensity to commit similar crimes,

was indisputable. Moreover, the DNA evidence linking defendant to A.P.’s assault was over­

whelming. However, by the State’s introduction of the interrogation video, the jury was able to

hear defendant’s repeated and emphatic claims of innocence. Furthermore, such statements were

not subject to the State’s cross-examination or impeachment. Thus, the video could be viewed as

an asset to defendant’s case. Accordingly, we conclude that, even if we assume that trial counsel

could have excluded the entire video or specific portions of it, there is not a reasonable probabil­

ity that the result of the trial would have been different. Houston, 229 Ill. 2d at 4. Defendant’s

claim of ineffective assistance of counsel fails. Fellers, 2016 IL App (4th) 140486, ¶ 23.

¶ 54                                B. The Rape Shield Statute

¶ 55           Defendant argues that he had a constitutional right to confront A.P. and the

State’s expert witness about the unidentified semen found on A.P.’s vaginal swab because “there

is a possibility that the person whose DNA was found on A.P.’s vaginal swab was also the

source of the DNA on the anal swab and was the attacker.” We disagree, concluding that this ev­

idence would not have made a meaningful contribution to the fact-finding enterprise. People v.

Maxwell, 2011 IL App (4th) 100434, ¶ 76, 961 N.E.2d 964.

¶ 56                                  1. The Applicable Law

¶ 57           The purpose of the rape shield statute is “to prevent the defendant from harassing



                                               - 12 ­
and humiliating the complaining witness with evidence of *** specific acts of sexual conduct

with persons other than defendant, since such evidence has no bearing on whether she consented

to sexual relations with the defendant.” People v. Summers, 353 Ill. App. 3d 367, 373, 818

N.E.2d 907, 912 (2004). The rape shield statute, in pertinent part, provides as follows:

               “In prosecutions for *** aggravated criminal sexual assault *** the prior sexual

               activity or the reputation of the alleged victim *** is inadmissible except (1) as

               evidence concerning the past sexual conduct of the alleged victim *** with the

               accused when this evidence is offered by the accused upon the issue of whether

               the alleged victim *** consented to the sexual conduct with respect to which the

               offense is alleged; or (2) when constitutionally required ***.” 725 ILCS 5/115­

               7(a) (West 2016).

¶ 58           The due-process clause of the fourteenth amendment and the confrontation clause

of the sixth amendment guarantee a criminal defendant the right to a meaningful opportunity to

present a complete defense. U.S. Const., amend. VI, XIV; People v. Santos, 211 Ill. 2d 395, 412,

813 N.E.2d 159, 168 (2004). An essential component of procedural fairness is an opportunity to

be heard. Crane v. Kentucky, 476 U.S. 683, 690 (1986). Moreover, notwithstanding the protec­

tions of the rape shield statute, a defendant’s right under the confrontation clause may require the

admission of a victim’s prior sexual activity when such evidence is relevant and shows the al­

leged victim’s “ ‘bias, prejudice or motive.’ ” Santos, 211 Ill. 2d at 415 (quoting People v. Sand­

oval, 135 Ill. 2d 159, 174-75, 552 N.E.2d 726, 733 (1990)).

¶ 59           The “constitutionally required” exception to the rape shield statute should be con­

strued narrowly but also fairly. (Internal quotation marks omitted.) People v. Munoz-Salgado,

2016 IL App (2d) 140325, ¶ 17, 61 N.E.3d 257. This statute must not be applied to obscure rele­



                                               - 13 ­
vant evidence that bears directly on guilt or innocence. People v. Johnson, 2014 IL App (2d)

121004, ¶ 42, 36 N.E.3d 821. However, an alleged victim’s sexual history is not constitutionally

required to be admitted unless it would make a meaningful contribution to the fact-finding enter­

prise. Maxwell, 2011 IL App (4th) 100434, ¶ 76. The constitution does not require the admission

of evidence which is only marginally relevant or which poses an undue risk of harassment, prej­

udice, or confusion of the issues. Crane, 476 U.S. at 689-90.

¶ 60           The trial court’s evidentiary rulings made under the rape shield statute are re­

viewed for an abuse of discretion. People v. Sandifer, 2016 IL App (1st) 133397, ¶ 26, 65 N.E.3d

969. A trial court abuses its discretion when it acts arbitrarily or when no reasonable person

would take the view adopted by the trial court. People v. Chambers, 2016 IL 117911, ¶ 68, 47

N.E.3d 545.

¶ 61                                       2. This Case

¶ 62           In this case, A.P. identified her attacker as a black male. Unidentified semen was

found on A.P.’s vaginal swab, and defendant could not be excluded as the potential source of the

DNA found on A.P.’s anal swab. Defendant’s own expert witness conceded that the DNA profile

found on A.P.’s anal swab would only occur in one out of every 840 trillion individuals “[i]n the

African[-]American population[.]” Defendant argues that he had a constitutional right to confront

A.P. and the State’s expert witness about the unidentified semen found on A.P.’s vaginal swab

because “there is a possibility that the person whose DNA was found on A.P.’s vaginal swab was

also the source of the DNA on the anal swab and was the attacker.”

¶ 63           We conclude that—under the facts of this case—the unidentified semen found on

A.P.’s vaginal swab was not constitutionally required to be admitted. 725 ILCS 5/115-7(a) (West

2016). Due to the statistical improbabilities that an unidentified person other than defendant con­



                                              - 14 ­
tributed both the semen on A.P.’s vaginal swab and anal swab, this evidence would not make a

meaningful contribution to the fact-finding enterprise. Maxwell, 2011 IL App (4th) 100434, ¶ 76.

¶ 64           Instead, at best, the unidentified semen would be marginally relevant. Johnson,

2014 IL App (2d) 121004, ¶ 42. Likewise, this evidence would pose an undue risk of harass­

ment, prejudice, and confusion of the issues. Crane, 476 U.S. at 689-90. Finally, assuming the

unidentified semen was from a consensual partner, such evidence would have “no bearing on

whether [A.P.] consented to sexual relations with the defendant.” Summers, 353 Ill. App. 3d at

373.

¶ 65           Likewise, the trial court’s action did not deprive defendant of his right to confront

witnesses or to present the theory of his case. Defendant confronted the State’s expert witness on

cross-examination by demonstrating that his DNA was not found on A.P.’s vaginal swab and that

he was not a direct match on A.P.’s anal swab. Further, this is not a case where a defendant con­

tends that he had consensual sex with a victim but argues that another unknown individual sub­

sequently raped the victim. Instead, defendant’s theory was that he had never had sex with A.P.

If the jury would have believed this argument, defendant would not have been found guilty of

criminal sexual assault. Accordingly, under the facts of this case, the trial court did not abuse its

discretion in denying the introduction of this evidence. Chambers, 2016 IL 117911, ¶ 68.

¶ 66                                C. Related Sexual Assaults

¶ 67           The State played an interrogation video of defendant in which the investigators

insinuated that defendant may have been responsible for other crimes in the area. Likewise, vari­

ous State witnesses discussed—in passing—that other sexual assaults had occurred in the area.

Defendant argues that he should receive a new trial because the State “repeatedly presented irrel­

evant and unduly prejudicial evidence that there were other ‘related’ sexual assaults that oc­



                                               - 15 ­
curred around the time of the charged offense, suggesting to the jury that [defendant] was re­

sponsible for numerous assaults.” Defendant concedes that he forfeited this issue but argues he

prevails under the plain-error doctrine. We disagree.

¶ 68                                  1. The Applicable Law

¶ 69            To preserve an alleged error for appeal, a defendant must object at trial and file a

written posttrial motion. People v. Colyar, 2013 IL 111835, ¶ 27, 996 N.E.2d 575. Failure to do

either results in forfeiture. People v. Sebby, 2017 IL 119445, ¶ 48, 89 N.E.3d 675.

¶ 70           The plain-error doctrine bypasses normal forfeiture principles and allows a re­

viewing court to consider an unpreserved error when (1) the evidence is close, regardless of the

seriousness of the error, or (2) the error is serious, regardless of the closeness of the evidence.

People v. Ely, 2018 IL App (4th) 150906, ¶ 15, 99 N.E.3d 566.

¶ 71           The usual first step under either prong of the plain-error doctrine is to determine

whether there was a clear or obvious error at all. People v. Matthews, 2017 IL App (4th) 150911,

¶ 17, 93 N.E.3d 597. When a defendant claims first-prong error, he must prove that an error oc­

curred and that the evidence was so closely balanced that the error alone severely threatened to

tip the scales of justice against him. Id. ¶ 26. In determining if the evidence was close, a review­

ing court must evaluate the totality of the evidence and conduct a qualitative, commonsense as­

sessment of the evidence within the context of the case. Sebby, 2017 IL 119445, ¶ 53. If the de­

fendant meets his burden, he has demonstrated actual prejudice, and his conviction should be re­

versed. Id. ¶ 44.

¶ 72           When a defendant claims second-prong error, he must prove that a structural error

occurred. People v. Thompson, 238 Ill. 2d 598, 613-14, 939 N.E.2d 403, 413-14 (2010). A struc­

tural error is an error which renders a criminal trial fundamentally unfair or unreliable in deter­



                                               - 16 ­
mining a defendant’s guilt or innocence. People v. Bowens, 407 Ill. App. 3d 1094, 1101, 943

N.E.2d 1249, 1258-59 (2011). Structural errors occur in very limited circumstances. People v.

Averett, 237 Ill. 2d 1, 13, 927 N.E.2d 1191, 1198 (2010).

¶ 73           The defendant bears the burden of persuasion at all times under the plain-error

doctrine. People v. Suggs, 2016 IL App (2d) 140040, ¶ 61, 57 N.E.3d 1261. If the defendant fails

to meet his burden, the issue is forfeited, and the reviewing court will honor the procedural de­

fault. People v. Ahlers, 402 Ill. App. 3d 726, 734, 931 N.E.2d 1249, 1255 (2010).

¶ 74           However, the plain-error doctrine only applies in cases involving procedural de­

fault. People v. McGuire, 2017 IL App (4th) 150695, ¶ 29, 92 N.E.3d 494. The plain-error doc­

trine does not apply to affirmative acquiescence. Id. That means that, when defense counsel af­

firmatively acquiesces to actions taken by the trial court, any potential claim of error on appeal is

waived and defendant’s only available challenge is to allege that he received ineffective assis­

tance of counsel. People v. Young, 2013 IL App (4th) 120228, ¶¶ 25-26, 996 N.E.2d 671.

¶ 75                                        2. This Case

¶ 76           First, the mentioning of other sexual assaults in addition to A.P. and C.H. oc­

curred almost exclusively during the interrogation video. However, as we discussed earlier, de­

fense counsel affirmatively acquiesced to the introduction of this video. Accordingly, defendant

has waived these errors for appeal and cannot claim this error under the plain-error doctrine. Id.

¶ 77           Second, the evidence was not closely balanced. The similarities between C.H.’s

case and A.P.’s case were stark and overwhelming. Further, as mentioned, the DNA evidence

against defendant was substantial. Last, the vague statements that other crimes occurred in the

area did not come close to amounting to structural error. Accordingly, this argument is without

merit, and we honor the procedural default. Ahlers, 402 Ill. App. 3d at 734.



                                               - 17 ­
¶ 78                           D. The Evidence of C.H.’s Assault

¶ 79          Defendant argues that he was deprived of his right to a fair trial because the evi­

dence of the alleged assault against C.H. “was presented with unnecessary detail, [the] probative

value of the evidence was substantially outweighed by undue prejudice, and *** the other-crimes

evidence constituted an improper mini-trial.” We disagree.

¶ 80                                  1. The Applicable Law

¶ 81          Illinois Rule of Evidence 404(b) provides that:

              “Evidence of other crimes, wrongs, or acts is not admissible to prove the character

              of a person in order to show action in conformity therewith except as provided by

              sections 115-7.3, 115-7.4, and 115-20 of the Code of Criminal Procedure (725

              ILCS 5/115-7.3, 725 ILCS 5/115-7.4, and 725 ILCS 5/115-20). Such evidence

              may also be admissible for other purposes, such as proof of motive, opportunity,

              intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

              Ill. R. Evid. 404(b) (eff. Jan. 1, 2011).

¶ 82          Section 115-7.3 of the Code of Criminal Procedure, in pertinent part, provides as

follows:

                      “(a) This Section applies to criminal cases in which:

                              (1) the defendant is accused of *** aggravated criminal sexual as­

                                  sault ***[.]

                                                 ***

                      (b) If the defendant is accused of an offense set forth in paragraph (1) or

              (2) of subsection (a) *** evidence of the defendant’s commission of another of­

              fense or offenses set forth in paragraph (1), (2), or (3) of subsection (a) *** may



                                                 - 18 ­
                be admissible (if that evidence is otherwise admissible under the rules of evi­

                dence) and may be considered for its bearing on any matter to which it is relevant.

                       (c) In weighing the probative value of the evidence against undue preju­

                dice to the defendant, the court may consider:

                               (1) the proximity in time to the charged or predicate offense;

                               (2) the degree of factual similarity to the charged or predicate of­

                       fense; or

                               (3) other relevant facts and circumstances.” 725 ILCS 5/115­

                       7.3(a)-(c) (West 2016).

¶ 83            The exception created by section 115-7.3 incorporates the rules of evidence. Id.

§ 115-7.3(b). Illinois Rule of Evidence 403 provides that relevant evidence “may be excluded if

its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.” Ill. R. Evid. 403 (eff. Jan. 1, 2011).

¶ 84            A trial court’s balancing determination pursuant to Rule 403 is subject to an abuse

of discretion standard. Hoffman v. Northeast Illinois Regional Commuter R.R. Corp., 2017 IL

App (1st) 170537, ¶ 49, 99 N.E.3d 16. An appellate court reviews the trial court’s admission of

other-crimes evidence under an abuse of discretion standard. People v. Braddy, 2015 IL App

(5th) 130354, ¶ 27, 32 N.E.3d 39. A trial court abuses its discretion when it acts arbitrarily or

when no reasonable person would take the view adopted by the trial court. Chambers, 2016 IL

117911, ¶ 68.

¶ 85            In People v. Walston, 386 Ill. App. 3d 598, 618, 900 N.E.2d 267, 286 (2008), the

Second District evaluated the amount of evidence to be admitted under section 115-7.3. The



                                                 - 19 ­
court noted that, under section 115-7.3, the State “has a compelling reason to introduce thorough

evidence to establish a defendant’s propensity.” Id. at 613. The court also gave an “expansive

interpretation” regarding the amount of evidence that can be allowed under section 115-7.3. Id.

at 625. Regarding the danger of “mini-trials,” the court reasoned that the “danger of unfair preju­

dice [from a mini-trial] in the context of a section 115-7.3 case, as opposed to a common-law

other-crimes case, is greatly diminished.” Id. at 619. Finally, the court reasoned that any “limits

under section 115-7.3 on mini-trials based on judicial economy must *** defer largely to prose­

cutorial discretion.” Id. at 621.

¶ 86                                       2. This Case

¶ 87            First, we reject defendant’s argument that the State presented evidence from

C.H.’s case “with unnecessary detail.” As stated in Walston, the State had “a compelling reason

to introduce thorough evidence to establish a defendant’s propensity.” Id. at 613. To that point,

during defendant’s opening argument, defense counsel explicitly stated that the State bore the

burden of proving that defendant committed the assault against C.H. and that the assault against

C.H. was merely an “allegation.”

¶ 88            Second, the trial court’s balancing determination pursuant to Rule 403 was not an

abuse of discretion. Hoffman, 2017 IL App (1st) 170537, ¶ 49; 725 ILCS 5/115-7.3(c) (West

2016). In this case, the State introduced comprehensive evidence of defendant’s alleged attack on

C.H., including (1) C.H.’s testimony, (2) testimony from a nurse who evaluated C.H. at the hos­

pital, (3) a forensic scientist who testified that defendant’s DNA was found on C.H.’s chest

swab, and (4) the interrogation video regarding C.H.’s assault. This evidence was highly proba­

tive because the jury could use this evidence for propensity purposes. 725 ILCS 5/115-7.3(b)

(West 2016). Conversely, although this evidence was certainly harmful to defendant’s case, we



                                              - 20 ­
do not view it as unfairly prejudicial. People v. Barnes, 2013 IL App (1st) 112873, ¶ 44, 3

N.E.3d 330 (unfair prejudice means an improper basis upon which to make a decision such as

emotion, sympathy, hatred, contempt, or horror). Instead, in sexual assault cases, a defendant’s

propensity to commit such crimes is a proper factor for the jury to consider. 725 ILCS 5/115­

7.3(b) (West 2016). Considering the similarity between the sexual assault of A.P. and C.H. and

the strength of the DNA evidence, we conclude that the trial court’s balancing determination

pursuant to Rule 403 was not an abuse of discretion. See Hoffman, 2017 IL App (1st) 170537,

¶ 49; 725 ILCS 5/115-7.3(c) (West 2016).

¶ 89           Last, we reject defendant’s argument that an improper mini-trial occurred. As

stated in Walston, the “danger of unfair prejudice [from a mini-trial] in the context of a section

115-7.3 case, as opposed to a common-law other-crimes case, is greatly diminished.” Walston,

386 Ill. App. 3d at 619. Instead, this “mini-trial” was necessary to establish defendant’s involve­

ment in the attack on C.H.

¶ 90                                    E. Krankel Hearing

¶ 91           In this case, defense counsel filed a motion for a new trial and argued that the trial

court erred by (1) allowing in evidence of C.H.’s attack and (2) granting the State’s motion to

exclude any reference to the unknown semen found on A.P.’s vaginal swab. When the matter

proceeded to a hearing, defense counsel argued that the court should grant a new trial because

there was “a trial within a trial” regarding the issue of whether defendant assaulted C.H. When

making this argument, defendant’s attorney stated as follows:

                      “[W]e had a trial within a trial when you allowed testimony [regarding

               C.H.’s case]. The thing that really bothers me *** is that [defendant] had another

               attorney [in the case where the State charged defendant with assaulting C.H.]. I



                                               - 21 ­
               was not [the] attorney [in that case]. So all the testimony about [C.H.’s assault]

               *** I was generally aware, of course, but I couldn’t possibly do as good a job de­

               fending my client since it wasn’t my case. ***.

                       I was taken by surprise at the depth of the evidence and testimony brought

               by the State’s Attorney, *** [regarding the] alleged victim, forensic scientists, I

               had no chance to review that. As you know, had I been thinking about that case, I

               would have asked for review by our own experts. So that alone, I think, is reason

               for a new trial.”

¶ 92           Based upon this, defendant argues that the trial court erred by failing to conduct a

Krankel hearing. We disagree.

¶ 93                                   1. The Applicable Law

¶ 94           When a defendant who has been convicted brings a clear claim asserting ineffec­

tive assistance of counsel, either orally or in writing, the trial court’s duty to conduct a Krankel

inquiry is triggered. People v. Ayres, 2017 IL 120071, ¶ 18, 88 N.E.3d 73. However, the trial

court is not required to sua sponte conduct a Krankel inquiry absent a clear claim of ineffective

assistance of counsel. People v. Villanueva, 2017 IL App (3d) 150036, ¶ 50, 82 N.E.3d 565.

¶ 95           A Krankel hearing contains two steps. Id. ¶ 46. First, the trial court makes a pre­

liminary inquiry to examine the factual basis of the claim. Id. If the trial court determines that the

claim lacks merit or pertains only to matters of trial strategy, the trial court is not required to ap­

point new counsel. People v. Jolly, 2014 IL 117142, ¶ 29, 25 N.E.3d 1127. Second, if the allega­

tions show possible neglect of the case, new counsel is appointed to represent the defendant in a

full hearing on his claim. Villanueva, 2017 IL App (3d) 150036, ¶ 46. Whether a defendant was

entitled to a Krankel hearing is a legal question reviewed de novo. People v. Jackson, 2016 IL



                                                - 22 ­
App (1st) 133741, ¶ 68, 50 N.E.3d 66.

¶ 96            In People v. Willis, 2013 IL App (1st) 110233, ¶ 1, 997 N.E.2d 947, the defendant

was 16 years old when he committed first degree murder. The defendant was tried as an adult

pursuant to the then-mandatory automatic transfer provision of the Juvenile Court Act of 1987

(705 ILCS 405/5-130 (West 2010)). Willis, 2013 IL App (1st) 110233, ¶ 1. After he was found

guilty, defense counsel filed a motion for a new trial in which he alleged that he rendered inef­

fective assistance of counsel. Id. ¶ 62. Counsel stated that he failed to use due diligence to insure

that a witness would be available to testify at trial, that this witness was material, and that his cli­

ent was prejudiced as a result. Id. At a hearing on the motion, the State noted that counsel’s alle­

gation created a conflict of interest because he would have to argue his own ineffectiveness. Id.

As a result, counsel struck the allegation of ineffective assistance of counsel, and the case was

continued. Id. When the court later heard arguments on the motion, neither defendant nor his at­

torney referred to the now-stricken allegations of ineffective assistance of counsel, and the court

made no inquiry into them. Id.

¶ 97            On appeal, the defendant argued that the trial court erred by failing to conduct a

Krankel inquiry. Id. ¶ 60. The First District agreed, concluding that “the trial court has a duty to

conduct an adequate inquiry when allegations of ineffective assistance arise. [Citation.] The trial

court [cannot] simply ignore or fail to address a claim of ineffective assistance of counsel with­

out consideration of the claim’s merits.” Id. ¶ 72. Accordingly, the court remanded the case for a

proper Krankel inquiry. Id. ¶ 74. In reaching this conclusion, the court took notice of the defend­

ant’s young age, reasoning as follows:

                “Given that [the defendant] was a minor at the time of his trial, we cannot reason­

                ably expect him to raise the issue of his trial counsel’s ineffective assistance on



                                                 - 23 ­
                his own. A juvenile would be expected to be more at the mercy of counsel than an

                adult, and less likely to be cognizant and aware of his legal rights.” Id. ¶ 70.

¶ 98            In McGath, 2017 IL App (4th) 150608, ¶ 1, the defendant was convicted of un­

lawful delivery of a controlled substance. Counsel filed a motion for a new trial arguing, in part,

that a witness favorable to the defense was present for trial and that he did not call her to testify.

Id. ¶ 17. The defendant did not allege his counsel’s ineffectiveness in a pro se motion. See id.

¶ 52. On appeal, the defendant argued that the trial court erred by failing to conduct a Krankel

hearing because counsel essentially argued his own ineffectiveness. Id. ¶ 45. This court disa­

greed, explaining that “Krankel and its progeny apply only to posttrial claims raised by a defend­

ant pro se” (emphasis in original) (id. ¶ 49), and “a Krankel hearing is a term of art to describe

the hearing the court must conduct when a defendant pro se has raised a posttrial claim regarding

his counsel’s ineffective assistance.” Id. ¶ 51. As such, this court concluded that “[b]ecause de­

fendant did not raise a pro se posttrial claim of ineffective assistance of counsel, there was no

reason for the trial court to conduct a Krankel hearing.” Id. ¶ 52.

¶ 99                                         2. This Case

¶ 100           Defendant argues that Willis is applicable to his case. We reject this argument be­

cause (1) we disagree with the holding in Willis and, in the alternative, (2) Willis is distinguisha­

ble from the facts in this case.

¶ 101           We do not agree with the holding in Willis because, as the Illinois Supreme Court

has repeatedly held, a Krankel hearing is required when the defendant who has been convicted

brings a claim pro se, asserting ineffective assistance of counsel. Ayres, 2017 IL 120071, ¶ 11

(“The common-law procedure, which has evolved from our decision in Krankel, is triggered

when a defendant raises a pro se posttrial claim of ineffective assistance of trial counsel.”); Jolly,



                                                - 24 ­
2014 IL 117142, ¶ 29 (a Krankel hearing is required “when a defendant raises a pro se posttrial

claim of ineffective assistance of trial counsel”); People v. Patrick, 2011 IL 111666, ¶ 32, 960

N.E.2d 1114 (“Following Krankel, this court clarified that newly appointed counsel is not auto­

matically required in every case when a defendant presents a pro se posttrial motion alleging in­

effective assistance of counsel.”); People v. Taylor, 237 Ill. 2d 68, 76, 927 N.E.2d 1172, 1176

(2010) (“nowhere in defendant’s statement at sentencing did he specifically complain about his

attorney’s performance, or expressly state he was claiming ineffective assistance of counsel”)

People v. Moore, 207 Ill. 2d 68, 77-78, 797 N.E.2d 631, 637 (2003) (a Krankel inquiry is re­

quired when “a defendant presents a pro se posttrial claim of ineffective assistance of counsel”);

People v. Pecoraro, 144 Ill. 2d 1, 15, 578 N.E.2d 942, 948 (1991) (“Krankel is a fairly fact-

specific case, and the circumstances in the case at hand, where defendant retained his own pri­

vate counsel and did not request that he be represented by other counsel, do not warrant the ap­

plication of Krankel”); Krankel, 102 Ill. 2d at 188-89 (a hearing is required when a defendant

brings a pro se motion alleging ineffective assistance of counsel).

¶ 102          The Illinois Supreme Court has never held that a Krankel hearing may be trig­

gered by a defense counsel’s representations in the absence of the defendant’s pro se motion

raising a claim of ineffective assistance of counsel, and we view that holding from Willis as in­

consistent with Illinois Supreme Court doctrine. See Pecoraro, 144 Ill. 2d at 15 (“Krankel is a

fairly fact-specific case, and the circumstances in the case at hand *** do not warrant the appli­

cation of Krankel”). Accordingly, we reaffirm that “Krankel and its progeny apply only to

posttrial claims raised by a defendant pro se.” (Emphasis in original.) McGath, 2017 IL App

(4th) 150608, ¶ 49.

¶ 103          Second, even if we were to agree with the rationale of Willis, we conclude that it



                                               - 25 ­
is distinguishable. In this case, unlike in Willis, counsel’s motion for a new trial did not allege

that ineffective assistance of counsel was an independent reason for a new trial. See Willis, 2013

IL App (1st) 110233, ¶ 62. Likewise, counsel’s dialogue at the hearing did not constitute a clear

admission of ineffective assistance of counsel because counsel did not explicitly state that his

performance was objectively unreasonable or prejudicial. Instead, counsel vaguely argued that

defendant would have benefited by having a single attorney in both cases. These vague state­

ments regarding counsel’s performance did not constitute a clear claim of ineffective assistance

of counsel warranting a Krankel inquiry. Taylor, 237 Ill. 2d at 77 (vague statements are not a

clear claim of ineffective assistance of counsel).

¶ 104          Further, in Willis, the defendant was 16 years old. In this case, by contrast, de­

fendant is an adult with previous interactions with the criminal justice system. We conclude that,

as compared to a minor, we can reasonably expect that an adult can raise any issue of his trial

counsel’s ineffective assistance on his own. Compare Pecoraro, 144 Ill. 2d at 15 (an adult de­

fendant can be expected to retain new private counsel prior to the hearing of his posttrial mo­

tions), with Willis, 2013 IL App (1st) 110233, ¶¶ 69-70 (a minor cannot be reasonably expected

to assert his trial counsel’s ineffectiveness). Likewise, an adult is more independent of his attor­

ney and is more likely to be aware of his legal rights. See Willis, 2013 IL App (1st) 110233, ¶ 70.

Accordingly, by looking at the age and experience of the defendant in this case, Willis is further

distinguished. See id. ¶¶ 1, 68-70.

¶ 105                                   III. CONCLUSION

¶ 106           For the reasons stated, we affirm the trial court’s judgment.

¶ 107          Affirmed.




                                               - 26 ­
