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                              Appellate Court                           Date: 2019.06.27
                                                                        15:49:01 -05'00'



                  People v. Bever, 2019 IL App (3d) 170681



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           JOHNATHON R. BEVER, Defendant-Appellant.



District & No.    Third District
                  Docket No. 3-17-0681



Filed             March 18, 2019



Decision Under    Appeal from the Circuit Court of Rock Island County, No. 08-CF-794;
Review            the Hon. F. Michael Meersman, Judge, presiding.



Judgment          Affirmed.


Counsel on        James E. Chadd, Peter A. Carusona, and Sean Conley, of State
Appeal            Appellate Defender’s Office, of Ottawa, for appellant.

                  John L. McGehee, State’s Attorney, of Rock Island (Patrick Delfino,
                  David J. Robinson, and Nicholas A. Atwood, of State’s Attorneys
                  Appellate Prosecutor’s Office, of counsel), for the People.



Panel             PRESIDING JUSTICE SCHMIDT delivered the judgment of the
                  court, with opinion.
                  Justice Carter concurred in the judgment and opinion.
                  Justice McDade dissented, with opinion.
                                             OPINION

¶1       Defendant, Johnathon R. Bever, argues that plain error occurred when the judge considered
     matters outside the record—namely, his son’s Army experiences—in determining defendant’s
     guilt. We affirm.

¶2                                        I. BACKGROUND
¶3       The State charged defendant with criminal sexual assault (720 ILCS 5/12-13(a)(2) (West
     2008)) in that he placed his penis in the vagina of K.R. while knowing that K.R. was unable to
     give knowing consent.
¶4       The matter proceeded to a bench trial in Rock Island County circuit court. K.R. testified
     that she attended a party at Adam Struve’s house on the evening of July 12, 2008, and the early
     morning hours of July 13, 2008. K.R. drank alcohol at the party and became intoxicated. There
     were parts of the party that K.R. did not remember, and she assumed that she passed out or
     blacked out during those times. K.R. did not recall talking with defendant, dancing with
     anyone, or flirting with anyone.
¶5       K.R. remembered waking up in the basement on a mattress in a dark room. She did not
     know how she got there. She was not wearing clothing, but she did not remember taking her
     clothes off. K.R. saw two bright lights “like from a cell phone or something like that.” K.R.
     heard the voices of two or three people in the room. She did not know who they were. A man
     was on top of K.R. having sexual intercourse with her. She heard someone else say to remove
     her tampon, and then someone removed it. The man on top of her continued having sexual
     intercourse with her. Someone tried to place his penis into her mouth, and she pushed it away.
     K.R. did not recall saying no. She said that she was “out of it” and did not know what to do.
¶6       Eventually, K.R. heard her friend, Veronica Morse, yelling her name. K.R. yelled back.
     Veronica came downstairs and turned the light on. The men ran out of the room. K.R. sat on the
     mattress and cried. Angie Kight, another friend of K.R., found K.R.’s clothes, and K.R. got
     dressed. K.R. told her friends she had sexual intercourse and did not know how it happened.
     K.R. left the party and spent the night at Morse’s house. The next day, K.R. went to the
     hospital, where a nurse examined her. K.R. also spoke with a police officer at the hospital.
¶7       Morse testified that she was at Struve’s party with K.R. Morse saw K.R. flirt with
     defendant and sit on his lap. K.R. seemed intoxicated but coherent at that time. After they had
     been at the party for approximately 90 minutes, Morse could not find K.R. Other people at the
     party told Morse that K.R. was in the basement. Morse went downstairs. As she was walking
     down the stairs, Anthony Nache and Nate Warden ran up the stairs. Morse found K.R. crying
     in a room in the basement. K.R. was partially undressed. K.R. said that two people had video
     recorded her having sexual intercourse with another man. One of the men removed her
     tampon. Morse did not remember K.R. saying that she had sexual intercourse against her will,
     but K.R. was “freaking out,” and “she seemed like she was in that state where they did it
     against her will.” Morse helped K.R. put her clothes on. Morse then went upstairs and told
     Struve what K.R. had told her. Morse and K.R. left the party.
¶8       Kight testified that she was at the party with Morse and K.R. Kight believed that K.R.
     drank “more [alcohol] than she could handle” at the party. Kight saw K.R. talking to defendant
     and dancing with Nache. At one point, Morse told Kight that K.R. was downstairs claiming


                                                -2-
       someone had raped her. Kight went downstairs. Kight asked K.R. if someone forced her to
       have sexual intercourse, and K.R. said no. K.R. said that she had sexual intercourse with
       someone, heard voices, and then saw a light. K.R. thought the light might have been from a cell
       phone and that someone might have recorded her. K.R. did not know for sure what happened.
       K.R. was crying, and she seemed confused. Kight went upstairs and talked to Warden, Nache,
       and defendant. Kight checked the cameras on their cell phones to see if they had any
       photographs of K.R., but they did not. Defendant told Kight that he had sexual intercourse with
       K.R. but he did not force her. Defendant said that K.R. said she wanted to have sexual
       intercourse with him.
¶9         Justin Kapinus testified that he was a federal agent with the United States Army Criminal
       Investigation command. Kapinus received a request for assistance from the Moline Police
       Department to interview defendant, who was a private in the Army at the time, regarding a
       sexual assault. Kapinus met with defendant at an interview room on the installation where
       defendant was undergoing basic training, which was located in Fort Sill, Oklahoma. Someone
       from defendant’s unit transported defendant to Kapinus’s office building. Defendant would
       not have been given a choice as to whether he went to Kapinus’s building. During the
       interview, Kapinus spent approximately one hour building a rapport with defendant. Kapinus
       then presented defendant with a form discussing defendant’s Miranda rights (see Miranda v.
       Arizona, 384 U.S. 436 (1966)). Kapinus discussed the form with defendant. Defendant said he
       understood the form and signed it at 4:28 p.m. Defendant wrote his initials next to the date and
       time on the form. The court admitted the form into evidence.
¶ 10       Kapinus said that when he would interview people, they would not “memorialize the
       interview on a sworn statement” until they had “come to an agreement that there’s nothing else
       to discuss.” At that point, Kapinus would ask the individual to write in his or her own words
       what he or she had discussed with Kapinus. Kapinus would then “proceed with questions and
       answers that clarify what has maybe been left out or may be up for question.” Kapinus
       followed that procedure in this case. That is, Kapinus spoke with defendant for a period of
       time, and defendant then wrote a statement.
¶ 11       The court admitted defendant’s statement into evidence. Kapinus testified that defendant
       typed the statement himself except for a “Q and A” portion of the statement, which Kapinus
       typed. The part of the statement defendant typed stated:
                   “On the morning of July 13 at approximately two o’clock am [I] was met by a girl
               that I had talked to for a short time earlier in the night. She told me that she needed to
               find a quite [sic] place to lie down. We were both inebriated her more so than me. I
               brought her down stairs to a room formerly occupied by my friend who had just
               recently moved out of the house at which this took place. All of the lights in the room
               were out. It was my going away party and there was a lot of pressure on me to have sex
               before I left for basic training. After laying the girl down I laid down and fell asleep for
               about 5 min[utes]. I woke up and saw an opportunity which I regrettably took. I started
               to kiss her when two men entered the room and didn’t help the situation with
               encouragement about how I was being a man and how this was a good thing. I placed
               my hand down her shorts and shortly there after [sic] felt another hand on the back of
               mine. It turned out to be one of the other people in the room. As that went on she
               mumbled that she wanted me to stop but in the state of mind that I was in I did not think
               anything of it, however she did say it two more times. I then heard behind me *** that

                                                    -3-
               I should start having sex with her. At this point I took off her shorts and someone else
               removed her shirt and underwear. I then began to have sex with her. As I was having
               sex with her I heard some one [sic] say to take her tampon out. To this I also paid no
               attention. Soon after I was told to stop by the other person and he took the tampon out.
               This should have told me that she did not know what was going on but I continued to
               have sex with her. After about three more minutes I saw one of the other two people
               move her head and stick his penis in her mouth. I know this because the room was
               illuminated by a cell phone. Her eyes were closed but I didn’t think anything about it at
               that time, this was however another sign that she was not conscious and consenting.
               The cell phone went out but he continued to do this for approximately three minutes.
               Another five or six minutes went by and I finally realized what I was actually doing. I
               heard a voice from behind me say welcome to the unit and then I knew that I had to
               stop. I exited the room and did not look back. I was upstairs for about ten minutes when
               I heard one of the girls’ friends’ [sic] begin to yell at the other two who were in the
               room with me, who were then upstairs at the time. I then realized the entire severity of
               my actions on top of the pain I felt from my conscience. ***. I am incredibly sorry
               about what has been done and want to state that this is not the type of person that I am.
               I was affected by alcohol and made a horrible decision. If I could take back the past
               month of my life in order to prevent this situation I would do it in a heart beat.”
¶ 12       In the “Q and A” portion of the statement, defendant said that Nache and Warden were also
       in the room during the incident.1 Defendant believed the girl had consumed alcohol because
       “[h]er eyes were low, she had a hard time standing up, and she slurred her speech.” Defendant
       said that the girl used him to hold herself up as they walked downstairs. Defendant said that the
       girl said to stop after he put his finger in her vagina and she was asleep when he inserted his
       penis into her vagina. Defendant said that no one held the girl down because she was
       incapacitated and they did not need to. Kapinus testified that defendant said that K.R. had told
       him to stop twice when he was digitally penetrating her and once while he was having sexual
       intercourse with her.
¶ 13       Kapinus testified that defendant “was receptive towards the whole interview.” Defendant
       did not “combat *** pretty much any of the information [Kapinus] provided him.” Kapinus
       stated: “Obviously, [defendant] didn’t come out with the details. I had to assist him with that,
       but—and ask those questions ***.” Kapinus testified that he stopped the interview when
       defendant disclosed that there were other men in the room while he was having sexual
       intercourse with K.R. Kapinus “advised [defendant] for conspiracy.” Defendant then signed a
       second form waiving his Miranda rights at 7:48 p.m. The court admitted that form into
       evidence. The form showed that defendant had signed it and had written his initials by the date
       and time.
¶ 14       Kapinus testified that, after the hour of rapport building, the interview lasted for
       approximately 5½ hours. Defense counsel asked Kapinus why it took so long to elicit
       information from defendant that other individuals were involved in the offense. Kapinus
       replied that the interviewing process was “a long process.” Kapinus testified that he wore
       civilian clothing during the interview. Kapinus did not tell defendant his rank.

          In the portion of the written statement that Kapinus typed, Kapinus referred to Warden as “Ward.”
          1

       However, Kapinus referred to Warden as “Warden” during his trial testimony.

                                                    -4-
¶ 15        The State rested.
¶ 16        Struve testified that defendant was one of his best friends. Struve hosted a going-away
       party for defendant before he left for basic training. Struve said that “it seemed like [K.R.] ***
       had a thing for [defendant] that night.” K.R. sat on defendant’s lap, and Struve had a
       conversation with defendant while K.R.’s hand was on defendant’s “crotch area.” At one point,
       defendant asked Struve if there was still a bedroom in the basement from when Struve’s former
       roommate lived there. Struve said yes. Struve then watched K.R. lead defendant “hand in hand,
       down the stairs.” Struve said that “a couple other gentlemen” also went downstairs. At one
       point, Morse came upstairs screaming hysterically. Struve went down to the basement and
       talked to K.R. Struve asked K.R. if she had sexual intercourse with defendant, and she said yes.
       Struve asked K.R. what was wrong, and she said that more than one person tried to have sexual
       intercourse with her.
¶ 17        Struve testified that he was also in the Army at the time of the party. Struve testified that he
       had gone through basic training. Defense counsel asked Struve what basic training was like,
       and the State objected on the ground that it was irrelevant. The court stated: “Well, I’m
       assuming it’s in relation to showing what [defendant’s] basic training was like, what all grunts
       go through when they go into basic training, which I could testify about my own son, but it’s
       overruled.” Struve testified that basic training was strenuous and stressful, and he was scared at
       some points. Struve stated that drill sergeants were demanding. Their job was to scare the new
       recruits and break them down. Defense counsel asked Struve if he was afraid of his drill
       sergeant, and the State objected on the ground that it was irrelevant. The following exchange
       occurred:
                    “THE COURT: I know what you’re trying to bring out, [defense counsel], but,
                remember, I had a son who went through this too, so I’m—
                    [DEFENSE COUNSEL]: And I—
                    THE COURT: —I’m well aware of what happens in basic training.”
¶ 18        Struve testified that, if his drill sergeant told him to do something, he would do it without
       question. During the first three weeks, the drill sergeants yelled at the individuals going
       through basic training and tried to intimidate them. The training got better toward the end.
¶ 19        Defendant testified that he consumed “quite a few” alcoholic beverages at Struve’s party
       and became intoxicated. Defendant sat down on a couch and talked to K.R. for approximately
       30 minutes. K.R. sat on defendant’s lap, and they continued to talk for approximately 10
       minutes. K.R. was not slurring her speech, and she did not seem impaired. Defendant asked
       K.R. if she wanted to “go somewhere,” and she said yes. Defendant asked Struve if there was
       still a bedroom in the basement, and Struve said yes. Defendant told K.R. about the room. K.R.
       took defendant by the hand, and they walked downstairs. They lay on a mattress in the
       basement and “made out for a little while.” K.R. was actively participating. Defendant asked
       K.R. if she would perform oral sex on him, and she said no. Defendant then asked K.R. if she
       wanted to have sexual intercourse, and she said yes. K.R. removed her shirt, and defendant
       helped her remove her shorts. Defendant removed his pants and began having sexual
       intercourse with K.R. Defense counsel asked defendant if K.R. said anything during sexual
       intercourse, and defendant said that “there were yeses and moans.”
¶ 20        Defendant noticed that there was a light illuminating the room. It looked like a cell phone.
       Defendant felt a hand on his back and heard Nache whisper “ ‘Welcome to the Unit.’ ” Warden


                                                     -5-
       was holding a cell phone. Defendant saw Warden try to put his penis in K.R.’s mouth. K.R.
       pushed it away. Nache told defendant that K.R. “had a tampon in.” Defendant stopped having
       sexual intercourse with K.R., and Nache removed the tampon. At this point, defendant “felt
       like something was wrong.” Defendant said that he thought that they were all going to have
       sexual intercourse and he felt uncomfortable with that. Defendant stopped and went upstairs.
       Defendant testified that he had noticed that it had been difficult to insert his penis into K.R.’s
       vagina before Nache told him about the tampon.
¶ 21       Defendant went upstairs and began talking to one of his friends. About 10 or 15 minutes
       later, Morse came upstairs and yelled at Nache. Morse said that Nache raped K.R. Nache said
       that he had nothing to do with it. Kight and Morse asked defendant what happened, and he said
       that he had sexual intercourse with K.R. They asked defendant if he raped K.R., and he said no.
¶ 22       Defendant left for basic training in Fort Sill, Oklahoma, a few days after the party.
       Defendant testified that basic training was mentally and physically stressful. Four-and-a-half
       weeks into basic training, a drill sergeant drove defendant to Kapinus’s office. The drill
       sergeant did not tell defendant where he was going or why, and the drill sergeant did not give
       defendant the option not to go. When they arrived, the drill sergeant told defendant that he was
       in Kapinus’s custody, and the drill sergeant left. Defendant heard the drill sergeant call
       Kapinus “sir,” which caused defendant to believe that Kapinus was an officer. Kapinus never
       told defendant his rank.
¶ 23       It was approximately 3 p.m. when defendant arrived at Kapinus’s office. Kapinus took
       defendant into an interrogation room. Kapinus asked defendant about his military career and
       what he wanted in life. After about an hour, Kapinus told defendant a story about somebody he
       had been friends with when he was younger who was in a similar situation to defendant. At that
       point, defendant understood why he was there. After approximately an hour or an hour and a
       half, Kapinus told defendant he was being charged with criminal sexual assault and sodomy.
       Kapinus did not tell defendant whether these were state charges or military charges.
¶ 24       Kapinus asked defendant questions about what had occurred at the party. Defendant
       responded either “yes” or “no” to Kapinus’s questions “depending on *** the vibe in the
       room.” Defendant explained: “Well, it almost seemed like any time I would say something he
       would almost stop me and on a couple of occasions he told me if I was to lie to him that I could
       go to a military prison for five years.” When Kapinus would “stop” defendant, he would put up
       his hand with five fingers extended. The following exchange occurred between defense
       counsel and defendant:
                   “Q: Did you ever give [Kapinus] an answer and then have him react to it like that
               was not the answer he was looking for?
                   A: Yes, sir.
                   Q: How often did that happen?
                   A: Very often.
                   Q: What would happen if you said something and then it appeared that he didn’t,
               that was not the answer he wanted you to give?
                   A: He would put up his hand. He had made comments on a couple of occasions
               about going to military prison. He had told me that if I just went along with, or
               cooperated I suppose, that the Army could take care of it. That he could talk to my



                                                   -6-
                commanding officer and that I wouldn’t have a problem. That I could finish my basic
                training.”
¶ 25       Defendant testified that Kapinus asked him if K.R. said no, and defendant said she did not.
       Kapinus then put up his hand. Defendant said that K.R. might have said no. Kapinus asked how
       many times K.R. said no, and defendant said once. Kapinus shook his head, and defendant said
       three.
¶ 26       Eventually, Kapinus asked defendant to type a written statement. Defendant stopped a lot
       while he was writing the statement because he knew that what he was writing did not actually
       happen. Defendant testified that he wrote things in his statement that did not happen because it
       was what he thought he was supposed to write. Defendant believed that if he said what
       Kapinus wanted him to say, he would be able to finish his basic training. Defendant believed
       that if he did not say what Kapinus wanted him to say, he would go to military prison for five
       years. Defendant testified that he did not sign a form regarding his Miranda rights at the
       beginning of the interview. Rather, he signed the form right before he started to type his
       statement. Kapinus did not read the form to him at any point. Defendant said the time was not
       written on the Miranda form when he signed it. Defendant stated that his testimony at trial was
       true and his written statement was not. Defendant felt intimidated by Kapinus.
¶ 27       After hearing arguments, the court found defendant guilty of criminal sexual assault.
       During its pronunciation of guilt, the court stated: “First of all, I have a son who is about a year
       ahead of you in the Army. Trustworthiness and the truth, those are the two things they drill into
       you in boot camp. I don’t find much of it from you.” The court indicated that it found
       defendant’s testimony that Kapinus did not read him his Miranda rights and did not provide
       the forms at the times indicated on the forms was not credible. The court noted that it appeared
       that defendant had written his initials next to the date and time on both Miranda forms. The
       court stated:
                     “You’re having me believe that an officer of the United States military, who has
                little knowledge of the case, he’s sent this stuff to him from Moline, Illinois. He gets a
                brief background about a case, and *** he’s supposed to interview you about your
                knowledge of the case. So the first thing he does is he sets you up by not explaining
                everything on this sheet. My understanding is you read and write English pretty well
                because otherwise they never would have accepted you in the Army because that is one
                of the requirements.”
       The court stated that defendant’s testimony indicating that the Miranda forms had been
       “back-timed” was “an insult to the Army.”
¶ 28       The court stated that it believed that defendant’s statement to Kapinus was truthful,
       believable, reliable, and not coerced. The court noted that the statement defendant gave to
       Kapinus occurred much closer in time to the incident than his testimony in court. The court
       noted that defendant’s trial testimony mirrored Struve’s testimony. The court found that Struve
       had reasons not to tell the truth because he was the host of the party and defendant’s best
       friend.
¶ 29       The court noted that K.R. said that she had sexual intercourse before and after her tampon
       was removed. The court stated:
                “I can’t envision any woman wanting to have sex with a tampon in. Period. It just
                doesn’t happen. It doesn’t make sense. And the only reason a woman would have sex


                                                    -7-
               with a tampon [in] is because she’s unconscious or unable to understand the totality of
               what is going on ***.”
       The court reasoned that the fact that K.R. was wearing a tampon while defendant had sexual
       intercourse with her was “the biggest indication of all that she had no ability to consent to
       anything because only a woman who basically can’t consent because she’s had way too much
       to drink or is otherwise incapacitated would ever have sex with a tampon [in].”
¶ 30       The court sentenced defendant to four years’ imprisonment.

¶ 31                                            II. ANALYSIS
¶ 32       Defendant argues that the trial judge erred in assessing defendant’s credibility against
       Kapinus’s credibility based on his son’s Army experiences. Defendant contends that the judge
       showed that he was evaluating the evidence through the lens of his son’s Army experience
       during the trial when, in response to the State objecting to defense counsel questioning Struve
       about basic training, the judge said that he was “well aware of what happens in basic training”
       because he “had a son that went through this too.” Defendant also argues that the following
       comments made during the court’s pronouncement of guilt showed that the court did not
       evaluate the credibility of defendant and Kapinus “entirely on their own merits”:
                    “First of all, I have a son who is about a year ahead of you [(defendant)] in the
               Army. Trustworthiness and the truth, those are the two things they drill into you in boot
               camp. I don’t find much of it from you.
                    You’re having me believe that an officer of the United States military, who has
               little knowledge of the case, he’s sent this stuff to him from Moline, Illinois. He gets a
               brief background about a case and *** he’s supposed to interview you about your
               knowledge of the case. So the first thing he does is he sets you up by not explaining
               everything on this sheet. My understanding is you read and write English pretty well
               because otherwise they never would have accepted you in the Army because that is one
               of the requirements.
                    You also have me try to believe that he never put a time on the documents. There’s
               two separate ones: 16:28 and 19:48. Those look like your initials right on top of them.
               The dates, times, and then your initials right on top of both of them. Both the
               documents say you don’t have to talk to anybody, you don’t have to say anything, but
               anything you say can and will be used against you.
                    So you start there by having me believe that basically that these documents aren’t
               what they purport to be because these were back-dated, back-timed, whatever, and that
               basically you never signed anything until after you wrote these statements. Well, quite
               frankly, that’s an insult to the Army.”
¶ 33       Defendant also claims that the judge improperly considered his son’s experiences when he
       remarked: “I’ve got three kids about your age, and I understand what goes on and everything
       that happens.”
¶ 34       Defendant acknowledges that he failed to preserve this issue, but he argues that the issue is
       reviewable under the plain-error doctrine.
               “[T]he plain-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

                                                    -8-
               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).
¶ 35       “The first step of plain-error review is determining whether any error occurred.” People v.
       Thompson, 238 Ill. 2d 598, 613 (2010). “Deliberations of the court must necessarily be limited
       to the record before it.” People v. Steidl, 177 Ill. 2d 239, 266 (1997). “ ‘A determination made
       by the trial judge based upon a private investigation by the court or based upon private
       knowledge of the court, untested by cross-examination, or any of the rules of evidence
       constitutes a denial of due process of law.’ ” People v. Dameron, 196 Ill. 2d 156, 171-72
       (2001) (quoting People v. Wallenberg, 24 Ill. 2d 350, 354 (1962)). We find no error. The trial
       judge conducted no private investigation. The realities of military boot camp are widely known
       to many judges and jurors. Many, if not most, adults know about boot camp, if not from
       military service, then from reports from those who have served. See Illinois Pattern Jury
       Instructions, Criminal, Nos. 1.01(10), 1.01A(2) (approved July 18, 2014). Without error, there
       can be no plain error. However, any error resulting from the judge’s comments concerning his
       son’s Army experiences did not rise to the level of plain error under either prong of the
       plain-error doctrine.

¶ 36                             A. First Prong of the Plain-Error Doctrine
¶ 37       Defendant argues that the evidence was closely balanced such that reversal is warranted
       under the first prong of the plain-error doctrine because the trial evidence amounted to a
       credibility contest. An examination of the trial evidence in this case shows that the evidence
       was not closely balanced.
¶ 38       Under the first prong of the plain-error doctrine, forfeiture is excused where “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.”
       Piatkowski, 225 Ill. 2d at 565. “In determining whether the evidence adduced at trial was close,
       a reviewing court must evaluate the totality of the evidence and conduct a qualitative,
       commonsense assessment of it within the context of the case.” People v. Sebby, 2017 IL
       119445, ¶ 53.
¶ 39       In the instant case, the evidence was not closely balanced. Kapinus testified that defendant
       provided a sworn statement during their interview. In the statement, defendant said that K.R.
       told him that she needed a quiet place to lie down at the party. Defendant and K.R. were both
       intoxicated. K.R.’s “eyes were low, she had a hard time standing up, and she slurred her
       speech.” Defendant took K.R. to the basement, and she used defendant to hold herself up as
       they walked downstairs. Defendant and K.R. lay on a mattress, and defendant fell asleep. He
       awoke a few minutes later and started kissing K.R. Nache and Warden entered the room.
       Defendant put his hand down K.R.’s shorts. K.R. said to stop three times, but he did not.
       Defendant removed K.R.’s shorts, and someone else removed her shirt and underwear.
       Defendant began having sexual intercourse with K.R. Defendant said that K.R. was asleep at
       that time. Someone told defendant to stop and removed K.R.’s tampon. Defendant then
       resumed having sexual intercourse with K.R. Defendant observed one of the other men place
       his penis in K.R.’s mouth. K.R.’s eyes were closed at that time. Eventually, defendant “finally
       realized what [he] was actually doing” and stopped.

                                                    -9-
¶ 40        Defendant’s statement to Kapinus was partially corroborated by K.R.’s testimony. K.R.
       testified she woke up on a mattress in a dark room with a man on top of her having sexual
       intercourse with her. She heard another man say to pull her tampon out, and someone did. The
       man on top of her continued to have sexual intercourse with her. Another man tried to place his
       penis in her mouth, and she pushed it away. She said that she was “out of it” and did not know
       what to do.
¶ 41        Defendant claimed during his trial testimony that his statement to Kapinus was untrue.
       Defendant testified that he believed, if he said what Kapinus wanted to hear, he would be able
       to finish basic training. Defendant believed that if he did not say what Kapinus wanted to hear,
       he would go to military prison for five years because Kapinus said he could go to military
       prison if he lied. However, this testimony was simply self-serving and implausible.
¶ 42        Defendant also claimed during his trial testimony that the sexual intercourse he engaged in
       with K.R. was consensual. Much like the testimony regarding his statement to Kapinus, this
       testimony was also self-serving and implausible. Notably, defendant testified that K.R. was
       wearing a tampon while he was having sexual intercourse with her. It is implausible that K.R.
       would be actively participating in sexual intercourse with defendant while wearing a tampon.
       Defendant apparently did not notice the tampon until another man mentioned it. This
       testimony alone gave the trial judge more than adequate basis to disbelieve anything defendant
       said: falsus in uno, falsus in omnibus. The trial judge’s statements regarding the Army, when
       viewed in conjunction with this testimony, are much more understandable. In fact, the trial
       judge made it clear that it was defendant’s testimony regarding the tampon that cast the most
       doubt on defendant’s credibility. See supra ¶ 29.
¶ 43        In its decisions in Sebby, 2017 IL 119445, ¶¶ 61-63, and People v. Naylor, 229 Ill. 2d 584,
       608 (2008), our supreme court found the evidence to be closely balanced when the evidence
       amounted to a credibility contest between State witnesses and defense witnesses who testified
       as to different versions of events where both accounts were credible. However, neither Sebby
       nor Naylor involved a “credibility contest” in which a defendant claimed that a prior
       confession was untrue. Also, “courts have found no ‘credibility contest’ when one party’s
       version of the events was either implausible or corroborated by other evidence.” People v.
       Olla, 2018 IL App (2d) 160118, ¶ 35. The evidence was not closely balanced.

¶ 44                            B. Second Prong of the Plain-Error Doctrine
¶ 45        Defendant argues that he is entitled to relief under the second prong of the plain-error
       doctrine because the judge’s assessment of the credibility of the witnesses in light of his son’s
       Army experiences constituted structural error. Again, we find no error. However, even
       assuming error resulting from the trial judge’s consideration of his son’s Army experiences, it
       did not rise to the level of structural error.
¶ 46        Under the second prong of the plain-error doctrine, forfeiture is excused where “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.” Piatkowski, 225 Ill. 2d at 565. Our supreme court equates the second prong of plain
       error with structural error. Thompson, 238 Ill. 2d at 613. A structural error is “ ‘a systemic error
       which serves to “erode the integrity of the judicial process and undermine the fairness of the
       defendant’s trial.” ’ ” Id. at 614 (quoting People v. Glasper, 234 Ill. 2d 173, 197-98 (2009),
       quoting People v. Herron, 215 Ill. 2d 167, 186 (2005)).

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¶ 47       For all the reasons stated above, even if the trial judge’s comments were error, they did not
       rise to the level of structural error.

¶ 48                                      CONCLUSION
¶ 49       We find no error. We also conclude that if any error occurred, it did not constitute plain
       error.
¶ 50       For the foregoing reasons, we affirm the judgment of the circuit court of Rock Island
       County.

¶ 51      Affirmed.

¶ 52       JUSTICE McDADE, dissenting:
¶ 53       I would reverse the defendant’s conviction in this case on the basis that the trial court relied
       on matters outside of the record in assessing the defendant’s credibility and, ultimately, his
       guilt. I believe that this position is amply supported by the record.
¶ 54       First, in response to the State’s objection to defense counsel questioning a witness
       regarding whether he was afraid of his drill sergeant in boot camp, the court stated: “I know
       what you’re trying to bring out, [defense counsel], but, remember, I had a son who went
       through this too, so I’m *** well aware of what happens in basic training.”
¶ 55       Then, during its pronunciation of guilt, the court stated:
                “[T]here’s some issues I have with you, [defendant].
                     First of all, I have a son who is about a year ahead of you [(defendant)] in the Army.
                Trustworthiness and truth, those are the two things they drill into you in boot camp. I
                don’t find much of it from you.
                     You’re having me believe that an officer of the United States military, who has
                little knowledge of the case, he’s sent this stuff to him from Moline, Illinois. He gets a
                brief background about a case, and just he’s supposed to interview you about your
                knowledge of the case. So the first thing he does is he sets you up by not explaining
                everything on this sheet. My understanding is you read and write English pretty well
                because otherwise they never would have accepted you in the Army because that is one
                of the requirements.
                     You also have me try to believe he never put a time on the documents. There’s two
                separate ones: 16:28 and 19:48. Those look like your initials right on top of them. The
                dates, times, and then your initials right on top of both of them. Both the documents say
                you don’t have to talk to anybody, you don’t have to say anything, but anything you say
                can and will be used against you.
                     So you start there by having me believe that basically that these documents aren’t
                what they purport to be because these were back-dated, back-timed, whatever, and that
                basically you never signed anything until after you wrote these statements. Well, quite
                frankly, that’s an insult to the Army.”
¶ 56       I believe that the above statements of the trial court show that the judge assessed the
       credibility of the witnesses—namely, the defendant and the Army officer who interviewed
       him—in light of the judge’s preconceived notions about the Army based on the judge’s son’s
       experiences. It was reversible error for the judge to consider matters outside the record.

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       Wallenberg, 24 Ill. 2d at 354 (“A determination made by the trial judge based upon a private
       investigation by the court or based upon private knowledge of the court, untested by
       cross-examination, or any of the rules of evidence constitutes a denial of due process of law.”);
       Dameron, 196 Ill. 2d at 178 (“A judge need not give controlling weight to the improper
       evidence to trigger our reversal; even giving ‘very little weight’ is improper.” (quoting People
       v. Simms, 121 Ill. 2d 259, 274 (1988))); Steidl, 177 Ill. 2d at 266 (holding that the judge’s
       consideration of information outside the record was prejudicial error).
¶ 57       Additionally, I believe the judge assessed the credibility of defendant and Kapinus based
       on an artificial standard—namely, how he would expect a reasonable Army officer to behave.
       It appeared that the judge expected Army personnel to have and act in accord with certain
       positive traits, like truthfulness and trustworthiness, and he used that expectation to judge
       testimonial credibility. He rejected any suggestion that Kapinus, as “an officer of the United
       States military” could conceivably have done what defendant suggested was done, and he
       discounted defendant’s claims as “an insult to the Army,” ultimately concluding that defendant
       did not live up to these Army standards.




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