                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Giraud, 2011 IL App (1st) 091261




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    ERNESTO GIRAUD, Defendant-Appellant.



District & No.             First District, Second Division
                           Docket No. 1-09-1261


Filed                      August 30, 2011


Held                       Defendant’s conviction for aggravated criminal sexual assault of his
(Note: This syllabus       daughter was reduced to criminal sexual assault where the victim’s
constitutes no part of     exposure to defendant’s HIV infection during the unprotected sexual
the opinion of the court   assault was insufficient to raise the assault to aggravated criminal sexual
but has been prepared      assault.
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 08-CR-3829; the
Review                     Hon. Thomas Hennelly, Judge, presiding.



Judgment                   Affirmed in part and sentence reduced in part; cause remanded.
Counsel on                  Michael J. Pelletier and Suzan-Amanda Ingram, both of State Appellate
Appeal                      Defender’s Office, of Chicago, for appellant.

                            Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Marie
                            Quinlivan Czech, and Lori M. Rosen, Assistant State’s Attorneys, of
                            counsel), for the People.


Panel                       JUSTICE CONNORS delivered the judgment of the court, with opinion.
                            Justices Karnezis and Harris concurred in the judgment and opinion.



                                               OPINION

¶1          Following a jury trial, defendant Ernesto Giraud was convicted of one count of
        aggravated criminal sexual assault, two counts of criminal sexual assault, and one count of
        criminal transmission of HIV. He was sentenced to 30 years in prison for aggravated criminal
        sexual assault, two 15-year terms for the criminal sexual assault convictions, and 7 years for
        the criminal transmission of HIV conviction, all to run concurrently. Defendant now appeals
        alleging that (1) the State failed to prove him guilty beyond a reasonable doubt of aggravated
        criminal sexual assault because it failed to prove that defendant threatened or endangered the
        victim’s life during the sexual assault, and (2) the prosecutor’s comments during rebuttal
        closing arguments improperly shifted the burden of proof to defendant. We reduce
        defendant’s aggravated criminal sexual assault conviction to criminal sexual assault and
        remand the case for resentencing based on the reduced conviction. We also find that
        defendant’s sentence for criminal transmission of HIV should run consecutively, rather than
        concurrently, to the criminal sexual assault sentences, and we find that the prosecutor’s
        comments in rebuttal closing arguments did not constitute reversible error.

¶2                                         I. BACKGROUND
¶3          Defendant was charged with numerous counts stemming from allegations that he engaged
        in sexual intercourse with his teenage daughter on multiple occasions while he was infected
        with human immunodeficiency virus (HIV). One of the charges enumerated in defendant’s
        indictment was aggravated criminal sexual assault, which stated that while he was
        committing the offense of criminal sexual assault, he “acted in such a manner as to threaten
        or endanger the life of [T.G.], to wit: [defendant] is HIV positive and had unprotected sex
        with [T.G.], in violation of *** section 12-14(a)(3) [(720 ILCS 5/12-14(a)(3) (West 2010))].”
¶4          The following facts were gleaned at trial. T.G., the victim, testified that at the time of trial
        she was 16 years old. When she was five years old her mother died, so she lived with her
        grandmother until the summer of 2006. When she was 13 years old, she moved in with her
        father (defendant), and his wife in their two-bedroom apartment in Chicago. Both T.G. and

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       defendant knew that defendant was HIV positive and that he took medication to treat the
       disease.
¶5         A couple of days before Thanksgiving of 2007, when she was 14 years old, T.G. was
       alone in her bedroom. Defendant said he wanted to show her something and entered her
       room and locked the door behind him. He told her to take off her clothes, and she resisted.
       He grabbed her by the hands and pushed her on the bed where she fell on her back. He held
       her down with one arm and used his free arm to unbuckle her jeans. She pushed him off and
       attempted to run to the door, but defendant blocked her. He reached into the dresser for a
       condom, got back on the bed and grabbed T.G., and tried to put on the condom. T.G. looked
       away because she “didn’t want to be there at that moment.” She testified that she did not
       know whether defendant ever put on the condom. Defendant then put his penis into her
       vagina and started having sex with her. After about a minute, T.G. pushed defendant off and
       ran into the bathroom, locking the door. Defendant told her to “get the f***k out” and
       threatened that if she ever told anyone what happened, she and her family would be hurt.
       T.G. got in the shower and felt wetness on her body. She kept scrubbing herself with soap
       to get rid of the feeling.
¶6         Approximately two weeks later, T.G. was inside her locked bedroom when defendant
       began knocking and then picked the lock. He told T.G. to take off her clothes but T.G.
       refused and tried to walk out of the room. Defendant grabbed her by her hair and forced her
       down on the bed. He pulled off her pants and held her down while he forced his penis into
       her vagina. T.G. did not know if defendant wore a condom.
¶7         There were approximately four more times where defendant forced his penis into T.G.’s
       vagina between Thanksgiving and Christmas of 2007. After T.G.’s fifteenth birthday in
       December, and into early January 2008, defendant forced T.G. to have sex with him about
       two additional times. Each act occurred in either T.G.’s bedroom or defendant’s bedroom.
       The last occurrence took place in January 2008. Defendant came in her room and grabbed
       her and started to unbuckle her pants. T.G. started crying after defendant inserted his penis
       in her vagina, so he pulled out and walked away. T.G. was not sure if he used a condom that
       time.
¶8         On January 24, 2008, T.G. went to her grandmother’s house and ingested an entire bottle
       of Tylenol pills. She passed out on the bathroom floor, where T.G.’s grandmother found her.
       T.G.’s sister then brought her to the hospital where her stomach was pumped. At the hospital,
       T.G. was hysterical and begged her sister not to call her father. T.G.’s sister demanded to
       know why, and T.G. “told her everything.” T.G.’s sister then called the police and defendant
       was arrested.
¶9         Chicago police detective De La Torre spoke to defendant at the police station, whereupon
       defendant told De La Torre that he had sex with T.G. on four occasions, the first in
       November 2007, and the last time about two or three weeks earlier. Defendant claimed that
       T.G. enjoyed having sex with him. He stated that he used a condom most of the time except
       for the first occasion.
¶ 10       Assistant State’s Attorney Antara Nath spoke with defendant and obtained a written
       statement from him. In that statement, defendant stated that in November 2007, he and T.G.


                                                -3-
       had sex for about five minutes. He did not wear a condom, but ejaculated outside of her
       vagina. During the other occurrences, defendant claimed to have worn a condom. Defendant
       further claimed that T.G. enjoyed the sexual encounters and provoked them.
¶ 11       At trial, defendant testified that he suffered from diabetes, high blood pressure, and HIV.
       He must take medications for these conditions after breakfast. When he left with the officer
       on the morning of his arrest, he had not eaten breakfast and had not taken his medication. He
       had last eaten soup the day before at around 5 p.m. Once at the police station, he was placed
       into the lockup until 5 or 6 p.m. and was not given food during this time. Defendant denied
       ever admitting any sexual contact with T.G. during his conversation with the detectives.
       Defendant testified that he did not know he could ask for medication, and he was feeling bad
       and his vision was blurry. He did not recall signing a form with his rights in English and
       Spanish. When confronted with the signatures on the pages of the statement, defendant said
       that several of them did not look like his signature. He denied telling the State’s Attorney that
       he had engaged in sexual acts with T.G.
¶ 12       During closing arguments, defense counsel highlighted the fact that defendant testified
       as to his having diabetes, his poor eyesight, and his lack of food prior to giving his written
       statement. In rebuttal closing arguments, the prosecutor commented that although defendant
       testified as to all his medical conditions, he did not call his doctors to corroborate his
       testimony or lend credibility to his testimony.
¶ 13       The jury convicted defendant of one count of aggravated criminal sexual assault, two
       counts of criminal sexual assault, and one count of criminal transmission of HIV. The trial
       judge sentenced defendant to 30 years for aggravated criminal sexual assault, 15 years for
       each of the criminal sexual assault convictions, and 7 years for the criminal transmission of
       HIV conviction, all to run concurrently. Defendant now appeals.

¶ 14                                       II. ANALYSIS
¶ 15       On appeal, defendant contends that the State failed to prove him guilty beyond a
       reasonable doubt of aggravated criminal sexual assault because it failed to prove the
       aggravating factor of threatening or endangering the victim’s life during the commission of
       the offense, and that the prosecutor’s comments during rebuttal closing argument improperly
       shifted the burden of proof to defendant.

¶ 16                          A. Aggravated Criminal Sexual Assault
¶ 17       Defendant’s first argument on appeal is that the State failed to prove him guilty of
       aggravated criminal sexual assault. When considering a challenge to a criminal conviction
       based upon the sufficiency of the evidence, it is not our function to retry the defendant.
       People v. Hall, 194 Ill. 2d 305, 329-30 (2000). Rather, our inquiry is limited to “whether,
       after viewing the evidence in the light most favorable to the prosecution, any rational trier
       of fact could have found the essential elements of the crime beyond a reasonable doubt.”
       (Emphasis in original.) Jackson v. Virginia, 443 U.S. 307, 319 (1979); accord People v. Cox,
       195 Ill. 2d 378, 387 (2001). It is the responsibility of the trier of fact to “fairly *** resolve
       conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from

                                                 -4-
       basic facts to ultimate facts.” Jackson, 443 U.S. at 319. “Testimony may be found
       insufficient under the Jackson standard, but only where the record evidence compels the
       conclusion that no reasonable person could accept it beyond a reasonable doubt.” People v.
       Everhart, 405 Ill. App. 3d 687, 704 (2010) (citing People v. Cunningham, 212 Ill. 2d 274,
       280 (2004)). Only where the evidence is so improbable or unsatisfactory as to create
       reasonable doubt of the defendant’s guilt will a conviction be set aside. Hall, 194 Ill. 2d at
       330.
¶ 18        A person commits the offense of criminal sexual assault when he commits an act of
       sexual penetration by the use of force or threat of force. 720 ILCS 5/12-13(a)(1) (West 2010).
       A person commits the offense of aggravated criminal sexual assault when he commits
       criminal sexual assault and during the assault, an aggravating factor is present. 720 ILCS
       5/12-14(a) (West 2010). Here, defendant admits that his actions constituted criminal sexual
       assault, but argues that the State failed to prove beyond a reasonable doubt the aggravating
       factor for which defendant was charged and which elevated the offense to aggravated
       criminal sexual assault. Defendant was charged and convicted pursuant to section 12-
       14(a)(3) of the Criminal Code (now section 11-1.30(a)(3) of the Code), which states in
       pertinent part:
                    “(a) The accused commits aggravated criminal sexual assault if he or she
                commits criminal sexual assault and any of the following aggravating circumstances
                existed during *** the commission of the offense:
                                                    ***
                         (3) the accused acted in such a manner as to threaten or endanger the life of
                    the victim or any other person[.]” 720 ILCS 5/12-14(a)(3) (West 2010).
¶ 19        The jury found that, when defendant exposed T.G. to HIV when he forced her to have
       unprotected sex with him, defendant threatened or endangered T.G.’s life. Defendant
       contends that exposing T.G. to HIV did not constitute threatening or endangering T.G.’s life
       during the commission of the criminal sexual assault because the threat or danger to T.G.’s
       life was not immediate. In other words, defendant argues that the statute contemplates that
       the threat or danger to the victim’s life during a criminal sexual assault must be immediate
       and pose a risk during the assault in order to be elevated to aggravated criminal sexual
       assault. Defendant contends that exposure to HIV does not always lead to infection, and even
       if a person contracted HIV during a sexual assault, that person’s life could not become
       endangered or threatened during the course of the criminal sexual assault.
¶ 20        The State initially responds that defendant has waived this issue on appeal because he
       failed to raise it in his motion for a directed finding or in his posttrial motion. While normally
       the failure to raise an issue in a written posttrial motion results in a waiver of that issue on
       appeal, one exception to this rule is a challenge to the sufficiency of the evidence. People v.
       Allen, 288 Ill. App. 3d 502, 505 (1997) (citing People v. Enoch, 122 Ill. 2d 176, 187-90
       (1988)). Therefore, defendant’s claim that the State failed to prove a material allegation (i.e.,
       defendant threatened or endangered the victim’s life during the commission of criminal
       sexual assault) may be raised for the first time on appeal. Id.
¶ 21        The parties here do not dispute the underlying facts. Both parties agree that defendant

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       committed criminal sexual assault when he forced T.G. to have unprotected sexual
       intercourse with him and ejaculated inside of her. The parties disagree, however, as to
       whether such undisputed evidence is sufficient to satisfy the offense of aggravated criminal
       sexual assault due to defendant’s status as an HIV carrier. The parties dispute whether the
       exposure of HIV satisfies the element of threatening or endangering a person’s life during
       the commission of the criminal sexual assault. As stated above, defendant argues that the
       aggravating element was not satisfied because his behavior must be such that he puts the
       victim’s life in danger at some point in time during the commission of the sexual assault, or
       that defendant’s actions could result in the victim’s death during the commission of the
       crime. The State contends that it is not necessary for the victim’s life to be threatened or
       endangered only for the duration of the criminal sexual assault but, rather, that defendant
       need only act in a way, during the commission of the offense, that could pose a risk of death
       to the victim at any point in the future. Accordingly, we must first look to the meaning of
       “during the commission of the offense” before we can make a determination as to whether
       the evidence presented raises criminal sexual assault to aggravated criminal sexual assault
       as contemplated by the statute.
¶ 22        The principles of statutory interpretation dictate that “[a] reviewing court’s objective in
       construing a statute is to give effect to the legislature’s intent.” People v. Cardamone, 232
       Ill. 2d 504, 512 (2009). “Accordingly, we consider the statute in its entirety, keeping in mind
       the subject it addresses and the legislature’s apparent objective in enacting it.” Id. (citing
       People v. Davis, 199 Ill. 2d 130, 135 (2002)). “ ‘The best indication of legislative intent is
       the statutory language, given its plain and ordinary meaning.’ ” Id. (quoting People v.
       Christopherson, 231 Ill. 2d 449, 454 (2008)).
¶ 23        The statute states that a person commits aggravated criminal sexual assault if that person
       commits criminal sexual assault and any aggravating circumstances exist “during *** the
       commission of the offense.” 720 ILCS 5/12-14(a)(1) through (a)(10) (West 2010). Illinois
       case law has interpreted that phrase to mean that the aggravating factor must occur
       contemporaneously with the criminal sexual assault. See People v. Potts, 224 Ill. App. 3d
       938 (1992) (to prove aggravated criminal sexual under the “bodily harm” element, State had
       to prove that the bodily harm was contemporaneous to the criminal sexual assault, not after).
       Here, while the exposure to HIV was contemporaneous with the sexual assault, T.G.’s life
       was not threatened or endangered during the course of the assault.
¶ 24        Moreover, when looking at Illinois cases that have discussed the particular aggravating
       element at issue in this case, it is apparent to us that defendant’s actions must be such that
       a victim’s life is threatened or endangered while the criminal sexual assault is taking place.
       There are very few Illinois cases that discuss the particular aggravating element of
       threatening or endangering a person’s life, which is the element at issue in this case. We will
       nevertheless review the relevant cases in Illinois that discuss section 12-14(a)(3) to see how
       Illinois has applied the aggravating factor of acting in a manner that threatens or endangers
       a person’s life during the commission of criminal sexual assault.
¶ 25        The court in People v. Ramsey, 147 Ill. App. 3d 1084 (1986), found that the victim’s life
       was threatened or endangered during the commission of criminal sexual assault due to the
       method of the assault, plus the fact that one of the defendants threatened to strip the victim,

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       beat her, and force her to walk home. During the commission of the offense, one of the
       defendants told another defendant to get a shotgun out of the trunk and threatened to kill the
       victim. One of the defendants then went to the back of the car. Each defendant had sexual
       intercourse with the victim. Afterwards, one of the defendants suggested that they strip the
       victim and make her walk home, or to take her to a different city. Another defendant
       suggested that they could simply use the shotgun and kill her. Ramsey, 147 Ill. App. 3d at
       1087. The court found that such facts established that defendants “acted in a manner such as
       to threaten complainant’s life under section 12-14(a)(3).” Id. at 1090.
¶ 26        In People v. Zernel, 259 Ill. App. 3d 949 (1994), the court found that threatening a victim
       with a weapon, even if proof of a display of that weapon is never established, constitutes
       threatening or endangering a person’s life during the commission of criminal sexual assault.
       In that case, defendant and the victim were in defendant’s apartment. Defendant grabbed the
       victim from behind and held a knife to her throat. He then released her and said he would kill
       her unless she did what he wanted. He boasted that he could kill her with his bare hands if
       he wanted to. He also said he had a gun and displayed a dark object. He told the victim that
       he would shoot her in the back if she ran. Defendant threatened to kill her and come after her
       family if she did not do as he said. Zernel, 259 Ill. App. 3d at 953. The court found that
       defendant’s behavior was such that he threatened or endangered the victim’s life during the
       criminal sexual assault pursuant to section 12-14(a)(3) even though there was no proof of a
       gun.
¶ 27        Our supreme court, in People v. McCoy, 207 Ill. 2d 352 (2003), did not disturb the
       appellate court’s finding that the defendant threatened or endangered the victim’s life when
       he placed a pillow over the victim’s face during the commission of criminal sexual assault.
¶ 28        In the recent case of People v. Everhart, 405 Ill. App. 3d 687 (2010), the defendant
       grabbed the victim from behind and told her not to scream. He placed an object to the
       victim’s head and asked her if she knew what it was. He made her reach up and touch the
       object. The victim testified that it felt like a gun. The defendant said, “ ‘If you scream or
       fight, I’ll blow your f---ing head off.’ ” Everhart, 405 Ill. App. 3d at 689. He then sexually
       assaulted the victim, and afterwards told her not to scream or make any noise or he would
       “ ‘blow [her] f---ing head off again.’ ” Id. at 690. The trial court convicted defendant of
       aggravated criminal sexual assault, and defendant appealed, alleging that the State failed to
       prove beyond a reasonable doubt that he acted in a manner which threatened or endangered
       a life as required under section 12-14(a)(3) of the Code. Id. at 703-04. Defendant contended
       that the State’s evidence was insufficient to prove the aggravating factor because it showed
       that the offender verbally threatened the victim, but did not commit any life-threatening acts
       during the sexual assault. This court found that defendant committed an overt act when he
       placed an object to the victim’s head and threatened to “blow [her] brains out” if she did not
       comply. The court found that a rational trier of fact could have found that defendant acted
       in such a manner as to threaten or endanger the victim’s life during the commission of the
       offense. Id. at 705.
¶ 29        Finally, in People v. Singleton, 217 Ill. App. 3d 675 (1991), the trial court found a
       defendant guilty of aggravated criminal sexual assault when defendant threatened to kill the
       victim’s family if she did not comply, and then pushed her onto the bed before committing

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       criminal sexual assault. However, the appellate court reversed. On appeal, the court found
       that “it must be overt acts by the defendant *** which threaten or endanger a victim’s life,
       and that the life-threatening acts must occur during the commission of the offense.” Id. at
       687. The court expounded on this, stating that “[p]rior violent acts against a victim, remote
       in time from the sexual molestation charged, are insufficient to support that element of the
       offense of aggravated criminal sexual assault that the defendant’s acts threatened or
       endangered a victim’s life.” Id. The act of pushing the victim onto the bed was not viewed
       as life-threatening because “[t]here was no evidence that the victim sustained any type of
       physical injury, not even a bruise, from the defendant’s pushing her onto the bed at the time
       of his sexual violation of her.” Id.
¶ 30        Accordingly, from these few cases that discuss section 12-14(a)(3), it is evident that those
       acts that have constituted threatening or endangering a person’s life are overt acts that must
       threaten or endanger a person’s life during the commission of the offense. In the case at bar,
       there is no evidence that defendant’s actions threatened the victim’s life during the sexual
       assault. We cannot say that mere exposure to HIV, without more, rises to aggravated criminal
       sexual assault as contemplated by section 12-14(a)(3), because HIV exposure could not pose
       an immediate risk to the victim’s life while defendant was in the act of committing sexual
       assault to the victim. In other words, while exposing someone to HIV can result in
       transmitting a life-threatening disease to that person, it cannot threaten or endanger
       someone’s life during the commission of the criminal sexual assault.
¶ 31        Moreover, we note that if T.G. had actually contracted HIV, defendant could have been
       charged with aggravated criminal sexual assault pursuant to section 12-14(a)(2) of the
       statute. See 720 ILCS 5/12-14(a)(2) (West 2010). Section 12-14(a)(2) elevates criminal
       sexual assault to aggravated criminal sexual assault if the defendant causes bodily harm to
       the victim. 720 ILCS 5/12-14(a)(2) (West 2010). “Bodily harm” is defined in the statute as
       inclusive of sexually transmitted diseases. 720 ILCS 5/11-0.1 (West 2010). Accordingly, if
       T.G. had contracted HIV from defendant, defendant presumably would have been charged
       under section 12-14(a)(2) of the statute instead of section 12-14(a)(3).1
¶ 32        However, T.G. was merely exposed to HIV and did not contract it. In 1983, Illinois
       passed a law specifically criminalizing the transmission of HIV, which includes mere
       exposure to HIV without actual contraction. See 720 ILCS 5/12-5.01 (West 2010). If a
       person is convicted of criminal transmission of HIV, as well as either criminal sexual assault,
       aggravated criminal sexual assault, or predatory criminal sexual assault of a child, sentences
       must be imposed consecutively rather than concurrently. See 730 ILCS 5/5-8-4(a) (West


               1
                Furthermore, we are aware of other jurisdictions that have considered an HIV-infected
       person’s sexual organs and fluids as a “deadly weapon” and convicted those people of aggravated
       criminal sexual assault based on the section of the statute that prohibits displaying a deadly weapon
       during the course of criminal sexual assault. See Najera v. State, 955 S.W.2d 698, 700-01 (Tex. App.
       1997). In the case at bar, however, defendant was charged pursuant to section 12-14(a)(3) and not
       section 12-14(a)(1) (720 ILCS 5/12-14(a)(1) (West 2010)), which elevates criminal sexual assault
       to aggravated criminal sexual assault if the defendant displays a deadly weapon during the criminal
       sexual assault.

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       2002). Accordingly, a person who commits criminal sexual assault while exposing another
       to HIV (without actually giving that person HIV), receives a longer sentence than someone
       who commits sexual assault without exposing someone to HIV. But that person receives a
       shorter sentence than someone who either threatens or endangers a person’s life during the
       criminal sexual assault (720 ILCS 5/12-14(a)(3) (West 2010)), or who actually gives
       someone HIV during the criminal sexual assault (720 ILCS 5/12-14(a)(2) (West 2010)).
¶ 33        The fact that the legislature criminalized the act of exposing someone to HIV, combined
       with the fact that sentence for such crime is to run consecutive to sexual assault convictions,
       shows us that the legislature intended to make HIV exposure its own separate crime, and not
       an aggravating factor to elevate criminal sexual assault to aggravated criminal sexual assault.
       We find further support for this proposition in People v. Dempsey, 242 Ill. App. 3d 568, 594
       (1993). In that case, the defendant was convicted of aggravated criminal sexual assault based
       on the fact that the defendant was over 17 years of age while the victim was under 13 years
       of age, and he was also convicted of criminal transmission of HIV. On appeal, the defendant
       contended that he could not be convicted of both crimes due to a violation of the one-act,
       one-crime rule. This court found that the two convictions were not based upon the same
       physical act because bodily fluid exposure was not required for defendant’s conviction for
       aggravated criminal sexual assault, whereas it was required for criminal transmission of HIV.
       The court stated that “aggravated criminal sexual assault may be committed without the
       exposure to any bodily fluid.” Id. In the case at bar, however, defendant was charged with
       aggravated criminal sexual assault based on the fact that he exposed T.G. to his bodily fluids.
       The aggravating factor in this case was defendant’s exposure of HIV to T.G. Accordingly,
       defendant could not have been convicted of aggravated criminal sexual assault unless he
       exposed T.G. to his bodily fluids. Thus, allowing the two convictions to stand would
       implicate one-act, one-crime concerns and lends further support for our conclusion that the
       legislature did not intend to collapse these two statutes.
¶ 34        Because we find that HIV exposure alone during criminal sexual assault is not enough
       to raise criminal sexual assault to aggravated criminal sexual assault under section 12-
       14(a)(3), it follows that no rational trier of fact could have found that the evidence of
       defendant’s unprotected sex with the victim during the criminal sexual assault could rise to
       aggravated criminal sexual assault, and the conviction must be overturned.
¶ 35        However, although we find that the evidence in the instant case did not rise to the level
       of aggravated criminal sexual assault, we find that the evidence is sufficient to prove that
       defendant committed the offense of criminal sexual assault. Under the broad powers granted
       by the Supreme Court Rule 615(b)(3) (Ill. S. Ct. R. 615(b)(3)), we may reduce the degree of
       an offense when a lessor included offense is involved. People v. Boyer, 138 Ill. App. 3d 16,
       19 (1985). We remand for resentencing based on that reduction. See People v. Brials, 315
       Ill. App. 3d 162, 175 (2000) (reducing defendants’ convictions for aggravated criminal
       sexual assault to the lesser offense of criminal sexual assault and remanding the case to the
       trial court for resentencing on the reduced charges).




                                                -9-
¶ 36                                B. Rebuttal Closing Arguments
¶ 37        Defendant’s second argument on appeal is that the prosecutor’s comments in rebuttal
       closing arguments deprived him of a fair trail. Specifically, defendant contends that the
       prosecutor improperly shifted the burden of proof to the defendant by asking the jury to
       consider the fact that defendant failed to present a doctor to corroborate his claims that his
       diabetic condition rendered his statement to police unreliable. The State responds that the
       prosecutor’s comments were in response to defendant’s closing argument and were
       comments on the evidence presented at trial.
¶ 38        Before reaching the merits of this argument, however, we note that the State first alleges,
       and defendant admits, that defense counsel failed to object to the allegedly improper
       comments during closing arguments, and thus the issue is waived on appeal. See People v.
       Allen, 222 Ill. 2d 340, 351 (2006) (a defendant must make a timely objection at trial, as well
       as raise the issue in a posttrial motion, in order to preserve an issue on appeal). Defendant
       nevertheless urges us to review this issue pursuant to the plain error doctrine.
¶ 39        The plain error doctrine is a familiar one. It permits a reviewing court to consider
       unpreserved error when “(1) a clear or obvious error occurred and the evidence is so closely
       balanced that the error alone threatened to tip the scales of justice against the defendant,
       regardless of the seriousness of the error, or (2) a clear or obvious error occurred and that
       error is so serious that it affected the fairness of the defendant’s trial and challenged the
       integrity of the judicial process, regardless of the closeness of the evidence.” People v.
       Sargent, 239 Ill. 2d 166, 189 (2010). A reviewing court typically undertakes plain error
       analysis by first determining whether error occurred at all. If error is found, the court then
       proceeds to consider whether either of the two prongs of the plain error doctrine have been
       satisfied. See Sargent, 239 Ill. 2d at 189-90. “Under both prongs, the burden of persuasion
       rests with the defendant.” Id. at 190 (citing People v. Naylor, 229 Ill. 2d 584, 593 (2008)).
¶ 40        Here, defendant urges us to review the alleged error under the second prong of the plain
       error doctrine. The purpose of the second prong of the plain error doctrine is to guard against
       errors that erode the integrity of the judicial process and undermine the fairness of the
       defendant’s trial. Id. “Unlike the first prong, prejudice need not be established. Rather,
       because of the importance of the right involved, prejudice is presumed.” Id. (citing People
       v. Herron, 215 Ill. 2d 167, 187 (2005)). “[I]n order for statements to be considered plain error
       they must be either ‘so inflammatory that defendant could not have received a fair trial, or
       so flagrant as to threaten [the] deterioration of the judicial process.’ ” People v. Phillips, 127
       Ill. 2d 499, 524 (1989) (quoting People v. Albanese, 104 Ill. 2d 504, 518 (1984)).
¶ 41        Defendant claims that the prosecutor improperly commented on defendant’s failure to
       present evidence or call witnesses, thus shifting the burden of proof to defendant. Defendant
       specifically complains of the following comments made by the prosecutor in rebuttal closing
       arguments:
                “And just because [defendant] has no burden doesn’t mean he sits there powerless.
                He told you about all these doctors and how he was hospitalized, and all of these
                people had the intimate knowledge of the workings of his personal problems, his
                diabetes, his high blood pressure, his HIV. Where are those doctors? Where are those


                                                 -10-
                doctors to tell you, ‘Hey, he was really bad that day, insulin dependent, and he would
                go loopy if he hadn’t had his medication.’ I am in no way implying that he has any
                burden, but doggone it, when he is going to make those kind of allegations, back it
                up. He has the power of subpoena. He supposedly has all these doctors. This is his
                medical position that led him saying he put his penis into his daughter’s vagina, that
                he ejaculated without a condom. Doggone it, back it up.”
¶ 42       Defendant argues that despite the prosecutor claiming she was “in no way implying that
       [defendant had] any burden,” her statements show that she was indeed implying that
       defendant had a burden to present evidence, which was improper. See People v. Weinstein,
       35 Ill. 2d 467, 470 (1966) (“the prosecution has the burden of proving beyond a reasonable
       doubt all the material and essential facts constituting the crime. [Citations.] The burden of
       such proof never shifts to the accused, but remains the responsibility of the prosecution
       throughout the trial.”).
¶ 43       “Prosecutors are afforded wide latitude in closing argument.” People v. Wheeler, 226 Ill.
       2d 92, 123 (2007). Prosecutors may argue to the jury facts and reasonable inferences drawn
       from those facts. People v. Kliner, 185 Ill. 2d 81, 151 (1998). “[C]losing arguments must be
       viewed in their entirety, and the challenged remarks must be viewed in context.” Wheeler,
       226 Ill. 2d at 122. A prosecutor may respond to comments by defense counsel which clearly
       invite a response. Kliner, 185 Ill. 2d at 154. “[C]omments made in closing argument must
       be considered in the proper context by examining the entire closing arguments of both the
       State and the defendant.” Id.
¶ 44       We will now examine the context in which the prosecutor’s remarks were made. During
       defense counsel’s closing argument, he argued:
                    “Look at allegedly the statement [defendant] gave, look at the signatures, look at
                the type of print on those signatures. Look at how it’s written.
                    And then look at the content of what’s in those alleged statements. A father is
                being accused of allegedly raping his daughter, and he goes to the police station and
                says, ‘I did it. I rubbed it. I took it out. I used a condom.’ Just like that. He is at the
                station from 9 o’clock until 5. He hasn’t eaten anything, hasn’t taken his medication,
                doesn’t have his glasses.
                    ***
                    We have testimony from [defendant]. [The police] took all of his personal
                belongings, his wallet, his glasses, and after he is booked and his picture taken, he
                goes into the lock-up.
                    He didn’t eat breakfast at that time. He is diabetic. And people who have
                diabetes, they have vision problems. Some people go blind with diabetes.
                    ***
                    Yet by this time [defendant] is in jail. By this time, [he] has numbers on his hand.
                At this time [defendant] has no glasses.
                    ***
                    [Assistant State’s Attorney Nath] gets there after they again ask him questions.

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                 He still hasn’t taken his medication, he doesn’t have his glasses, he hasn’t eaten.”
¶ 45        In response, the prosecutor argued in rebuttal:
                     “And the defendant had absolutely no burden in this case. None. He doesn’t have
                 to put on one witness. He doesn’t even have to really ask one question. His counsel
                 doesn’t have to ask one question. We have the burden beyond a reasonable doubt. It
                 is a burden that we accept. But once he puts on evidence, you can judge it just the
                 same as you judge any other evidence in this. And just because he has no burden
                 doesn’t mean he sits there powerless.
                     He told you about all these doctors and how he was hospitalized, and all of these
                 people had the intimate knowledge of the workings of his personal problems, his
                 diabetes, his high blood pressure, his HIV.
                     Where are those doctors? Where are those doctors to tell you, ‘Hey, he was really
                 bad that day, insulin dependent, and he would go loopy, his eyes would go loopy if
                 he hadn’t had his medication.’ I am in no way implying that he has any burden, but
                 doggone it, when he is going to make those kind of allegations, back it up. He has the
                 power of subpoena. He supposedly has all these doctors. This is his medical position
                 that led him saying he put his penis into his daughter’s vagina, that he ejaculated
                 without a condom. Doggone it, back it up.”
¶ 46        In so responding, we find that the prosecutor did not improperly shift the burden of proof
       to defendant. See Kliner, 185 Ill. 2d at 155 (holding that the burden of proof was not shifted
       when the prosecutor indicated on rebuttal that defendant could have called a certain witness);
       People v. Redd, 173 Ill. 2d 1, 31 (1996) (holding that the burden of proof was not shifted
       when the prosecutor, in closing argument, referred to the defendant’s right to “ ‘subpoena
       each and every witness he may want to and put anybody at all on the witness stand’ ”). In fact
       the prosecutor acknowledged that the burden of proof was on the State.
¶ 47        Moreover, we find that the prosecutor was merely commenting on the evidence presented
       at trial and reasonable inferences drawn therefrom. See Kliner, 185 Ill. 2d at 151 (prosecutors
       may argue to the jury facts and reasonable inferences drawn from those facts). “[I]f other
       evidence tends to prove the guilt of a defendant and he fails to bring in evidence within his
       control in explanation or refutation, his omission to do so is a circumstance entitled to some
       weight in the minds of the jury, and, as such, is a legitimate subject of comment by the
       prosecution.” People v. Williams, 40 Ill. 2d 522, 529 (1968). Further, “if it is developed in
       a trial that a witness exists, presumably under the control of a defendant, who can throw light
       upon a vital matter, and he is not produced, certainly a jury may fairly consider that fact, and,
       likewise, counsel would have a legitimate right to comment thereon.” Williams, 40 Ill. 2d at
       528; People v. Adams, 109 Ill. 2d 102, 120-21 (1985). Here, the examination and argument
       only reflected on the quality and credibility of the evidence that defendant presented. See
       People v. Gorosteata, 374 Ill. App. 3d 203, 218 (2007). The comments made by the
       prosecutor, when viewed in the entire context of the closing arguments, do not reach to such
       a level as to be construed as inflammatory or a flagrant threat to the judicial process. See
       Phillips, 127 Ill. 2d at 509-10.



                                                 -12-
¶ 48                                         C. Sentencing
¶ 49       Both parties agree that the trial court erred in sentencing defendant. As discussed above,
       the sentence for criminal transmission of HIV is to run consecutively to the criminal sexual
       assault statutes, not concurrently. 730 ILCS 5/5-8-4(a) (West 2002). In this case, the trial
       court improperly ordered all of defendant’s sentences to run concurrently. Accordingly, we
       remand to the trial court for resentencing.

¶ 50                                     III. CONCLUSION
¶ 51       For the foregoing reasons, we reduce the aggravated criminal sexual assault conviction
       to criminal sexual assault, affirm the remaining convictions, and remand for resentencing in
       accordance with this opinion.

¶ 52      Affirmed in part and sentence reduced in part; cause remanded.




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