                            ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Crenshaw, 2011 IL App (4th) 090908




Appellate Court             THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                     MICHAEL E. CRENSHAW, Defendant-Appellant.



District & No.              Fourth District
                            Docket No. 4-09-0908


Argued                      June 21, 2011
Filed                       August 10, 2011


Held                        Defendant’s conviction for the criminal sexual assault of his daughter was
(Note: This syllabus        upheld over his contentions that his confession was involuntary due to his
constitutes no part of      attempt to commit suicide by taking an overdose of medication and that
the opinion of the court    his daughter’s recording of the incident on her cell phone was inaudible
but has been prepared       and irrelevant and should not have been admitted in evidence.
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under              Appeal from the Circuit Court of Brown County, No. 09-CF-5; the Hon.
Review                      Diane M. Lagoski, Judge, presiding.



Judgment                    Affirmed.
Counsel on                 Michael J. Pelletier, Karen Munoz, and Catherine K. Hart (argued), all of
Appeal                     State Appellate Defender’s Office, of Springfield, for appellant.

                           Mark J. Vincent, State’s Attorney, of Mt. Sterling (Patrick Delfino,
                           Robert J. Biderman, and Luke McNeill (argued), all of State’s Attorneys
                           Appellate Prosecutor’s Office, of counsel), for the People.


Panel                      JUSTICE COOK delivered the judgment of the court, with opinion.
                           Justices Turner and Steigmann concurred in the judgment and opinion.




                                             OPINION

¶1          The trial court found defendant, Michael E. Crenshaw, guilty of criminal sexual assault
        (720 ILCS 5/12-13(a)(3) (West 2008)), a Class 1 felony (720 ILCS 5/12-13(b)(1) (West
        2008)). Defendant committed an act of sexual penetration with his daughter, H.H., who was
        then 15 years old. The court sentenced defendant to eight years in the Illinois Department of
        Corrections. Defendant argues the court erred by (1) denying his motion to suppress his
        confession, (2) admitting H.H.’s cell phone recording, and (3) imposing an excessive
        sentence. We affirm the court’s judgment.

¶2                                          I. BACKGROUND
¶3           Defendant was charged with criminal sexual assault (720 ILCS 5/12-13(a)(3) (West
        2008)), a Class 1 felony (720 ILCS 5/12-13(b)(1) (West 2008)), in that on or about February
        9, 2009, he committed an act of sexual penetration with H.H. who was then 15 years old.
        Following a bench trial, defendant was convicted and sentenced to eight years in the Illinois
        Department of Corrections.
¶4           The evidence at trial was that on January 14, 2009, Kevin Kaufman, a special agent with
        the Illinois State Police, and other officers, interviewed defendant at the Mount Sterling
        police department regarding allegations of sexual abuse made by H.H. The interview
        occurred after H.H. stated to Matthew Boley, a school social worker, that defendant told her
        that he had sex with her five times. H.H. could not recall ever having sex with her father and
        felt he made those claims to induce her to have sex with him. The social worker reported the
        allegations to the Department of Children and Family Services. Defendant denied the
        allegations, and the Department of Children and Family Services determined the allegations
        were unfounded.
¶5           H.H. testified that in the early morning hours of February 9, 2009, defendant entered her
        bedroom and made her have sex with him. H.H. had planned for this in advance, because this

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       was not the first time defendant had entered her bedroom and demanded sex. She recorded
       the act on her cell phone, holding the phone in her hands while defendant forced himself on
       her. While defendant thought she was playing a game on the phone, H.H. was actually
       recording the act. H.H. then played the recording for her friends at school, and then for her
       stepmother, Stephanie Crenshaw, at home. After listening to the recording, Stephanie
       immediately left the home with her two younger children. When Stephanie confronted
       defendant about the recording, he said that he had gone up to H.H.’s room, but it was only
       to get a massage. Later that same day, H.H. called the police from a friend’s house to report
       the sexual assault. Deputy sheriff Justin Oliver went to H.H.’s friend’s house and listened
       to the recording. Before Oliver left the house, H.H. gave him the phone. The next day
       defendant called in sick to work.
¶6          On February 10, 2009, Special Agent Jason Garthaus of the Illinois State Police began
       looking for defendant to question him concerning H.H.’s allegations. Garthaus saw defendant
       riding his motorcycle toward his residence. Shortly thereafter, Agent Kaufman contacted
       defendant via telephone. Defendant agreed to meet with the police and asked them to pick
       him up at his residence because he was tired and did not want to drive. Agents Kaufman and
       Garthaus picked defendant up at about 5:30 p.m. Defendant walked out to the agents’ truck
       without assistance. Defendant told Garthaus that he had taken four sleeping pills, two more
       than usual, since he was tired and wanted to go to sleep. Garthaus could tell that defendant
       was tired, but other than that defendant appeared to be fine. Before starting the interview,
       Kaufman gave defendant Miranda warnings. See Miranda v. Arizona, 384 U.S. 436 (1966).
       At 5:44 p.m., defendant signed a Miranda waiver.
¶7          During the interview, defendant said that he went to H.H.’s room to get a back rub,
       during which H.H. “touched his penis a couple of times.” Approximately five hours into the
       interview, Kaufman presented defendant with an inculpatory scenario, and in response,
       defendant said, “I guess.” After the interview, defendant was taken to Schuyler County jail.
¶8          Defendant testified that on February 9, 2009, he had taken more than four sleeping pills,
       that he had taken 2 to 3 5-milligram tablets of hydrocodone, 2 20-milligram capsules of
       Adderall, 15 to 20 10-milligram tablets of cyclobenzaprine (muscle relaxant), and 30 to 40
       tablets of trazodone (sleeping aid). Defendant stated he had earlier written a suicide note and
       then hid it. He later stated that he actually wrote three suicide notes and gave them to his
       stepmother three days after he got out of jail.
¶9          Defendant’s expert, Dr. Robert Chapman, determined that during the February 10, 2009,
       interview, defendant suffered side effects from the overdose of medicines that he had taken
       for the purpose of committing suicide. Dr. Chapman found as follows: “The combination of
       the medicines are such as to cause unsteady gait, drowsiness, confusion, poor concentration,
       impaired body perceptions and impaired capacity to understand, comprehend and make
       rational judgments based on information provided or questions asked.”
¶ 10        After the sentencing hearing, the trial court sentenced defendant as stated.
¶ 11        This appeal followed.




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¶ 12                                        II. ANALYSIS
¶ 13        On appeal, defendant argues the trial court erred by (1) denying his motion to suppress
       his confession, (2) admitting H.H.’s cell phone recording, and (3) imposing an excessive
       sentence.
¶ 14        The burden is on the State to establish by a preponderance of the evidence that the waiver
       of a defendant’s Miranda rights was knowing, intelligent, and voluntary. People v. Scott, 148
       Ill. 2d 479, 509-10, 594 N.E.2d 217, 228 (1992). If the State makes a prima facie case, then
       the burden shifts to the defendant to show the waiver was not knowing, intelligent, and
       voluntary. Id. at 510, 594 N.E.2d at 228.
¶ 15        After a drug has been administered to a defendant, the voluntariness of a statement made
       during a confession is a question to be decided by the trial court upon a motion to suppress.
       People v. Kincaid, 87 Ill. 2d 107, 117, 429 N.E.2d 508, 512 (1981). The fact that an accused
       is under the influence of drugs, self-administered or otherwise, when he or she makes a
       confession does not make the confession automatically inadmissible. Id. at 119, 429 N.E.2d
       at 513.
¶ 16        We apply a bifurcated standard of review to a trial court’s determination as to whether
       a defendant’s statement was voluntarily made. People v. Westmorland, 372 Ill. App. 3d 868,
       876, 866 N.E.2d 608, 614 (2007). We accord great deference to a trial court’s findings of fact
       and will not disturb those findings unless they are contrary to the manifest weight of the
       evidence. Id. (citing In re G.O., 191 Ill. 2d 37, 50, 727 N.E.2d 1003, 1010 (2000)). We
       review de novo the ultimate question as to whether a confession was voluntarily made.
       Westmorland, 372 Ill. App. 3d at 876, 727 N.E.2d at 614. In determining voluntariness,
       courts must consider the totality of the circumstances. People v. Evans, 125 Ill. 2d 50, 77,
       530 N.E.2d 1360, 1371 (1988).
¶ 17        Defendant claims the trial court’s failure to suppress his confession was against the
       manifest weight of the evidence, because the side effects of the drugs he ingested before the
       February 9, 2009, interview rendered his confession involuntary. Defendant argues that at
       the time of the interview he was intoxicated to the point where his confession was not the
       product of free will. He felt “slobbering drunk” and needed assistance walking and standing.
       Defendant claims that after receiving the initial call from the police on February 10, 2009,
       in an attempt to commit suicide, he ingested 2 to 3 5-milligram tablets of hydrocodone, 2 20-
       milligram capsules of Adderall, 15 to 20 10-milligram tablets of cyclobenzaprine (muscle
       relaxant), and 30 to 40 tablets of trazodone (sleeping aid). Defendant also points to his
       responses in the police report as showing the mental impairment he was suffering from at the
       time of the interview. During the interview, defendant provided multiple nonverbal or
       monosyllabic responses to questions, including the final inculpatory scenario presented by
       the agents in which defendant responded, “I guess.” To further support his involuntariness
       claim, defendant relies on Dr. Chapman’s evaluation of how the drugs he claimed to have
       ingested would have impacted him. According to Dr. Chapman’s report, the drugs would
       have caused defendant to suffer from a number of physical and mental impairments including
       “unsteady gait, drowsiness, confusion, *** impaired capacity to understand, comprehend and
       make rational judgments.”


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¶ 18        Under certain circumstances intoxication can render a Miranda waiver involuntary. See
       People v. Feagans, 134 Ill. App. 3d 252, 480 N.E.2d 153 (1985). The suppression of a
       statement is warranted if the evidence “plainly shows that a suspect is so grossly intoxicated
       that he no longer has the capacity to knowingly waive his rights.” Id. at 259, 480 N.E.2d at
       158. Evidence of less than gross intoxication goes to the weight to be accorded to the
       defendant’s statement and not the admissibility of the statement. Id. at 259, 480 N.E.2d at
       158-59. In denying defendant’s motion to suppress, the trial court considered the
       circumstances surrounding the confession, specifically whether defendant was under the
       influence of drugs. People v. Koesterer, 44 Ill. App. 3d 468, 479, 358 N.E.2d 295, 304
       (1976). The court compared defendant’s conduct on the night of February 10, 2009, to Dr.
       Chapman’s report concerning the physical and mental impact of the drugs defendant claimed
       to have taken before being picked up by Garthaus and Kaufman. The court determined that
       defendant did not suffer from the various physical and mental impairments described in Dr.
       Chapman’s report:
            “Dr. Chapman says that these drugs could have caused unsteady gait, and I don’t have
            that. Drowsiness, they said he was tired. Confusion, the officers, the troopers said he was
            not confused, that he was responsive, he was engaged, he understood impaired body
            perceptions. He said they had to help him to the bathroom, but that’s not what the
            troopers said. Impaired capacity to understand, and the testimony I have, both from the
            jail and from the troopers, was that he answered the questions appropriately. He
            understood the questions and gave appropriate answers. So the description that Dr.
            Chapman gives of what happens if you take these medications, and maybe he did, I don’t
            know, but what one would see I have no evidence of. And without that, I cannot find that
            the confession was not, that the statement was not voluntary.”
       The court’s determination of voluntariness was also based in part on the testimony provided
       by Kaufman and Garthaus. At trial, Kaufman testified that defendant never needed assistance
       walking to or using the bathroom facilities at the police station. Kaufman also stated that
       defendant look tired, but he continued to respond to the agents’ questioning. Both Kaufman
       and Garthaus testified that defendant was engaged in the interview and communicated well
       with the agents. Defendant introduced conflicting testimony concerning his physical and
       mental state during the interview, but the court found the agents’ testimony more credible.
       “It is the function of the trial court to determine the credibility of the witnesses and to resolve
       any conflict in their testimony.” People v. Matney, 293 Ill. App. 3d 139, 146, 686 N.E.2d
       1239, 1243 (1997). The court properly determined that the agents were more credible
       witnesses than the defendant. Defendant claimed to have taken an overdose of drugs in an
       attempt to commit suicide, but he hid the suicide notes and did not give them to anyone until
       three days after leaving jail. Defendant’s testimony also differed from the report he gave to
       Dr. Chapman concerning the events of February 10, 2009, particularly with respect to the
       time and date that defendant took the overdose of drugs. We agree with the court’s
       determination that defendant’s confession was voluntarily made, because the court properly
       considered the totality of the circumstances surrounding the confession.
¶ 19        The admissibility of evidence at trial is a matter within the sound discretion of the trial
       court. A trial court’s ruling may not be reversed absent a clear abuse of discretion. People

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       v. Manning, 182 Ill. 2d 193, 211, 695 N.E.2d 423, 431 (1998). In this case, the recording at
       issue was made by H.H. on her cell phone. H.H. testified that the recording captured the
       audio from her father sexually assaulting her on February 9, 2009. She identified the voices
       on the recording as those of herself and defendant. Initially, the court found the recording
       was not good quality. However, after listening multiple times to an enhanced recording made
       by the Illinois State Police, the court found the recording was “more audible than not.”
¶ 20        Defendant claims the trial court abused its discretion in admitting H.H.’s cell phone
       recording into evidence, because the recording was inaudible and irrelevant. He points to the
       court reporter’s inability to transcribe the recording and the judge’s difficulty hearing the
       recording. Defendant also argues the probative value of the recording is outweighed by its
       prejudicial effect, because the recording is audible enough to allow listeners to speculate as
       to what was occurring without providing information as to the identity of the speakers or the
       act being recorded.
¶ 21        The trial court did not abuse its discretion in admitting H.H.’s cell phone recording into
       evidence. A partially inaudible sound recording is admissible unless the inaudible portions
       are so substantial as to the render the recording untrustworthy as a whole. Id. at 212, 695
       N.E.2d at 431. It is within the trial court’s discretion to determine the admissibility of a
       recording that is partially inaudible. Id. The State argues that the recording in this case is
       similar to the recording at issue in Manning. In Manning, 182 Ill. 2d at 211-12, 695 N.E.2d
       at 431, the defendant claimed the trial court erred by admitting into evidence a tape-recorded
       conservation between himself and an informant, because of inaudible gaps in the
       conversation. The informant testified that the inaudible gaps occurred at the times when the
       defendant confessed to murdering the victim. Id. The court found that the inaudible gaps in
       the recording were relevant only as to the weight of the evidence and not its admissibility.
       Id. at 212, 695 N.E.2d at 431-32. We agree with the State, the recordings are comparable
       because of the nature of the inaudible portions of the respective recordings. Like the court
       in Manning, the trial court noted that the inaudible portions of the recording were relevant
       as to the weight of the evidence, but not the admissibility. The court did not use the recording
       to identify defendant as the person whispering on the recording. After listening to the
       recording, the court determined that H.H. was in distress and someone was whispering to her.
       The court found the recording was relevant evidence as to whether H.H. was sexually
       assaulted. Further, the court pointed to H.H.’s and Stephanie’s testimony, not the recording,
       as providing evidence as to defendant being the person whispering in the recording. During
       the trial, H.H. and Stephanie both identified defendant as the person whispering in the
       recording. The court also considered Stephanie’s reaction after hearing the recording on
       February 9, 2009. After listening to the recording, Stephanie packed up her family and
       immediately left the home she shared with defendant. The court did not abuse its discretion
       in admitting the partially audible recording, because the court relied on the recording only
       to determine that H.H. was in distress and someone was whispering to her.
¶ 22        A sentence imposed by a trial judge should not be overturned absent an abuse of
       discretion. People v. Anders, 228 Ill. App. 3d 456, 467, 592 N.E.2d 652, 659 (1992). A trial
       judge’s ruling is entitled to great deference, because a trial judge is better able to make a
       firsthand, reasoned judgment based on the defendant’s moral character, credibility,

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       demeanor, social habits, and age. Id. In considering the propriety of a sentence, the reviewing
       court must not substitute its judgment for that of the trial court merely because it would have
       weighed the relevant factors differently. People v. Fern, 189 Ill. 2d 48, 53, 723 N.E.2d 207,
       209 (1999). A sentence within the statutory limits will not be deemed excessive unless it is
       greatly at variance with the spirit and purpose of the law or manifestly disproportionate to
       the nature of the offense. Id. at 54, 723 N.E.2d at 210.
¶ 23       Defendant argues the trial court abused its discretion in imposing an eight-year sentence
       for his criminal-sexual-assault conviction. He claims the court’s sentence was excessive,
       because it gave insufficient weight to the evidence in mitigation and overemphasized the fact
       that defendant abused a position of trust as H.H.’s father.
¶ 24       In this case, we find the trial court did not abuse its discretion in sentencing defendant
       to eight years’ imprisonment for sexually assaulting his daughter. A conviction for criminal
       sexual assault is a Class 1 felony (720 ILCS 5/12-13(b)(1) (West 2008)). Under the Unified
       Code of Corrections, a Class 1 felony is punishable by 4 to 15 years’ imprisonment (730
       ILCS 5/5-4.5-30 (West 2008)). Defendant’s sentence of eight years is well within the
       statutory limit. Contrary to defendant’s argument, the court properly weighed the factors in
       mitigation and aggravation. The balance to be struck amongst the aggravating and mitigating
       factors is a matter of judicial discretion that should not be disturbed absent an abuse of
       discretion. People v. Hernandez, 204 Ill. App. 3d 732, 740, 562 N.E.2d 219, 225 (1990). The
       court considered in mitigation that defendant had no prior criminal history, is a veteran, has
       an extensive work history, and supports his family. The court considered in aggravation the
       seriousness of the offense, defendant’s superior position of trust in relation to H.H. as her
       father, and H.H.’s impact statement in which she stated she would be dealing with her
       father’s abuse for the remainder of her life. People v. Burke, 226 Ill. App. 3d 798, 800-01,
       589 N.E.2d 996, 998 (1992). The court properly accounted for the relevant mitigating and
       aggravating factors without giving undue weight to the defendant’s paternal relationship with
       H.H. The eight-year sentence imposed by the court was neither excessive nor contrary to the
       spirit of the law.

¶ 25                                   III. CONCLUSION
¶ 26      For the foregoing reasons, we affirm the trial court’s judgment. As part of our judgment,
       we award the State its $75 statutory assessment against defendant as costs of this appeal.

¶ 27      Affirmed.




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