                               Illinois Official Reports

                                       Appellate Court



                         People v. Alexander, 2014 IL App (1st) 112207



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



District & No.            First District, Fifth Division
                          Docket No. 1-11-2207



Filed                     June 27, 2014



Held                       Defendant’s conviction and sentence for the criminal sexual assault of
(Note: This syllabus his cousin were upheld on appeal over his contentions that the State
constitutes no part of the failed to prove beyond a reasonable doubt that he penetrated the victim
opinion of the court but by force and that neither party was allowed to present argument at the
has been prepared by the sentencing hearing, since the victim’s testimony was credible, there
Reporter of Decisions was no indication that the victim, who admitted she was intoxicated
for the convenience of the prior evening, was so intoxicated that she could not remember
the reader.)               what happened, a rational trier of fact could have concluded that
                           penetration occurred, the evidence was not inconsistent with the
                           victim’s testimony and showed she attempted to escape from
                           defendant, and the record showed that although the trial court barred
                           the State from arguing at the sentencing hearing, the defense was not
                           barred from presenting argument.



Decision Under            Appeal from the Circuit Court of Cook County, No. 10-CR-11312; the
Review                    Hon. Vincent M. Gaughan, Judge, presiding.



Judgment                  Affirmed.
     Counsel on               Michael J. Pelletier and Scott F. Main, both of State Appellate
     Appeal                   Defender’s Office, of Chicago, for appellant.

                              Anita M. Alvarez, State’s Attorney, of Chicago (Matthew Connors
                              and Anthony M. O’Brien, Assistant State’s Attorneys, of counsel), for
                              the People.




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




                                                OPINION

¶1         Following a bench trial, defendant Antonio Alexander was convicted of criminal sexual
       assault for penetrating the vagina of his cousin G.R. with his penis by use or threat of force
       (720 ILCS 5/12-13(a)(1) (West 2010)), and after hearing factors in aggravation and mitigation,
       the trial court sentenced defendant to 14 years and 6 months in the Illinois Department of
       Corrections (IDOC). On appeal, defendant argues: (1) that his conviction should be reversed
       because the victim’s testimony was insufficient to prove defendant guilty beyond a reasonable
       doubt; and (2) that the case should be remanded for resentencing because the trial court denied
       both parties the opportunity to present argument at the sentencing hearing. For the following
       reasons, we affirm.

¶2                                              BACKGROUND
¶3                                           I. Pretrial Proceedings
¶4          Prior to trial, the State moved in limine to present other crimes evidence from another case,
       trial court number 10 CR 12701, pursuant to section 115-7.3 of the Code of Criminal
       Procedure of 1963 (725 ILCS 5/115-7.3 (West 2010)), which enables trial courts to allow the
       admission of evidence of other crimes to establish the propensity of defendant to commit the
       charged crime. People v. Donoho, 204 Ill. 2d 159, 175-76 (2003). Following a hearing, the trial
       court granted the State’s motion because the other crimes evidence was proper to show
       propensity, the absence of mistake, motive, intent, and to rebut a consent defense.

¶5                                                II. Trial
¶6         At trial, the State presented four witnesses: (1) G.R., the victim; (2) Relunda Alexander,
       G.R.’s mother; (3) Iwona Wojas, a registered nurse who examined the victim; and (4) S.B.,
       defendant’s cousin. Defendant exercised his constitutional right not to testify or to call any
       witnesses.


                                                   -2-
¶7                                            A. G.R.’s Testimony
¶8          G.R., the victim, testified that she was 24 years old at the time of the trial and that she lived
       with her three children, seven brothers, niece, and her mother. G.R. did not have her own
       bedroom in the home and usually slept on the couch in the front room. Defendant was G.R.’s
       first cousin and she identified him in court.
¶9          G.R. testified that, at 7 p.m. on May 14, 2010, she was with several friends and family
       members, including defendant, at her aunt’s home near 71st Street and Marshfield Avenue in
       Chicago. G.R. periodically left the house that evening to drive round the neighborhood with
       defendant’s sister. During the course of two or three hours in the home, and in defendant’s
       presence, G.R. drank a six-inch-tall bottle of vodka and a three or four-inch-tall bottle of Long
       Island Iced Tea by herself, which resulted in G.R. feeling talkative, “a little drunk,” and “a lot
       tipsy.” G.R. stopped drinking at 10 p.m. and continued to travel in and out of her aunt’s home
       for another five hours.
¶ 10        At 3 a.m., defendant’s uncle “June”1 drove G.R. home. She still felt a little drunk when she
       arrived at home, so she drank a cup of water in the kitchen. G.R. checked on her children and
       niece, who were sleeping in the front room, and then went to go sleep in her brothers’ empty
       bedroom. G.R. turned on the television in the bedroom and laid down on the bed. She then
       received a telephone call from her uncle, who was confused with directions to his own
       residence after he dropped G.R. off, and she provided him directions back to his home. After
       the call, G.R. fell asleep facedown on the bed over the sheets, still fully dressed in jeans and a
       shirt. G.R. left the bedroom door unlocked when she fell asleep.
¶ 11        G.R. testified that, when she awoke, the lights and television in the bedroom were turned
       off and a man was on top of her. G.R. testified, “I was *** trying to get up from the side of me
       and I couldn’t get up.” She could not observe who it was because she was still lying facedown
       and the room was dark. Although she was fully clothed when she went to sleep, her pants and
       underwear were down to her knees when she awoke. G.R. turned to the side and was finally
       able to push the man off her back. As she pushed the man away, she felt the man’s penis slide
       out of her vagina. G.R. sat up and observed the man sitting on the side of the bed and leaning
       against the wall, and he covered his genitals with both of his hands. 2 G.R. could not identify
       the man until he spoke, “I’m sorry [G.R.], I’m sorry [G.R.],” and she immediately recognized
       the voice as that of defendant.
¶ 12        G.R. testified that she then stood up and tried to exit the bedroom, but the door was locked.
       She unlocked the bedroom door and ran to her mother’s bedroom screaming that defendant
       was having sex with her while she was asleep. G.R.’s mother, Relunda Alexander, then exited
       from her own bed, lit a cigarette, and walked out of her bedroom saying, “No you didn’t,
       Tony.3 No you didn’t, Tony.” From her mother’s bedroom, G.R. observed defendant standing
       by the bathroom across the hall wearing dark jeans, boots, and a hooded sweatshirt–the same

           1
            “Uncle June’s” full name does not appear in the appellate record.

           2
            G.R. did not state whether defendant’s pants were on or off.

           3
            Presumably, “Tony” is short for defendant’s first name Antonio, although G.R. did not explain this
       in her testimony.

                                                      -3-
       clothes he was wearing the night before. Defendant and Relunda walked into the kitchen
       together and talked for five minutes, while G.R. stayed in Relunda’s bedroom, screaming,
       “How the [expletive] did he get in here?” Defendant then left the house. Relunda returned to
       her bedroom and told G.R. that she let defendant in the house so he could play video games.
¶ 13        G.R. testified that, moments later, she answered the telephone but hung up as soon as she
       heard defendant’s voice. The telephone then rang again, but G.R. did not answer the call
       because it was from the same telephone number. G.R. walked into the kitchen and sat down,
       crying. She then called her grandmother, defendant’s sister, and finally the police. When the
       police arrived, G.R. told them what happened, and an officer transported her to the hospital.
       Relunda did not accompany G.R. to the hospital and instead went to work.
¶ 14        On cross-examination, G.R. testified that, although she was a little drunk the night before
       the incident, she was not “falling over” drunk or dizzy. G.R. also admitted that she was still “a
       little” intoxicated when she awoke, but not drunk. G.R. testified that, when she woke up in bed
       with defendant on her back, she felt something inside of her but she never observed what it
       was. When asked how long it took to get defendant off of her back, G.R. explained, “It didn’t
       take long because first when I tried to get him off me, I couldn’t move fast, right on top of me
       again. I pushed him, got him over again. That’s when I pushed him off, I felt him coming out of
       me.” When asked if she had any doubt if a penis was in her vagina, she answered that she was
       “pretty sure it was his penis.” G.R. testified that, although defendant was an inch or two away
       from her, she could not observe his face because the room was dark and defendant was wearing
       a hooded sweatshirt that concealed his face. However, G.R. was “100 percent” certain that the
       man’s voice belonged to defendant.

¶ 15                               B. Relunda Alexander’s Testimony
¶ 16       Relunda Alexander testified that G.R. is her daughter and defendant is her nephew. On
       May 14, 2010, she lived with her six children and three grandchildren in the same home. That
       night, Relunda went to bed at 9 p.m., and her three grandchildren, all under the age of four,
       were the only other people in the house when she went to sleep. She awoke at 5 a.m. the next
       morning to the sound of someone at the front door. Relunda answered the door and observed
       defendant, who told her that he could not sleep and asked if he could come inside and play
       video games. Relunda granted defendant permission since people came over “all the time” to
       play video games. Relunda observed defendant going into the bedroom where G.R. was
       sleeping, 4 and Relunda returned to her own bedroom and went back to sleep. Relunda
       identified defendant in court.
¶ 17       Relunda testified that, about five to eight minutes later, she heard G.R. calling, “Mama,
       mama, come here.” Relunda “jumped up” and exited her bedroom to check on G.R. While in
       the hallway, Relunda observed defendant, fully dressed, leave the bedroom where G.R. was
       sleeping and walk into the front room. Relunda observed G.R. still in the bedroom, and G.R.
       told her that defendant was on top of her. Relunda then followed defendant into the front room
       and asked him to explain what had just happened. Defendant appeared to be confused, and he
       told Relunda that he did not know it was G.R. and repeatedly said he was sorry. Relunda then
       told defendant to leave. After defendant left, Relunda asked G.R., who was crying, what she

          4
            Relunda did not indicate in her testimony whether she knew G.R. was already asleep in her
       brother’s bedroom.

                                                   -4-
       wanted to do and if she wanted to call the police. G.R. initially did not respond and instead
       called Relunda’s mother, who told G.R. to call the police, which G.R. later did. The police
       arrived and transported G.R. to the hospital, and Relunda left for work.
¶ 18       On cross-examination, Relunda testified that she did not speak with defendant in the
       kitchen that morning.

¶ 19                                     C. Iwona Wojas’ Testimony
¶ 20       Iwona Wojas testified that, in May 2010, she was a registered nurse employed by Holy
       Cross Hospital. At 7 a.m. on May 14, 2010, Wojas met with G.R. in the hospital’s emergency
       room. Wojas asked G.R. what happened to her, and G.R. related that she was sleeping and she
       awoke with someone on her back. G.R. explained to Wojas that her underwear had been pulled
       down and she felt a penis in her vagina. G.R. stated that she did not remember anything else
       because she was sleeping. G.R. did not appear intoxicated and she consented to the collection
       of a sexual assault kit, which is performed to find out if there is any evidence of the assailant on
       the victim. Wojas then took G.R.’s clothes, combed through her pubic hair, scraped her nails,
       administered oral swabs, and took blood samples.
¶ 21       Wojas testified that she then assisted Dr. Amel Cambry to perform a pelvic exam on G.R.
       Wojas explained that the pelvic and visual examination of G.R.’s vaginal area revealed no
       evidence of abrasion, entry, or insertion. Wojas did not observe any visual trauma. Wojas
       explained that it is common for a rape victim to not have injuries because the vagina is
       designed to stretch to accommodate a penis, as well as stretch for child birth, and that injuries
       may depend on the amount of lubrication in the vagina.
¶ 22       On cross-examination, Wojas testified that she was not trained in determining whether a
       patient is intoxicated and she did not perform a sobriety test on G.R. Wojas also testified that it
       is more likely for there to be a tear or abrasion after a “forced entry” as opposed to consensual
       intercourse; however, on redirect examination she explained that that is not always true since
       the vagina is designed to stretch and that lubricants, either natural or artificial, may prevent
       tears or abrasions. Wojas further stated that the presence of trauma may also depend on
       whether the woman is relaxed during intercourse and that a person is generally relaxed while
       asleep.

¶ 23                                    D. Stipulated Evidence
¶ 24       Scientific evidence was introduced by stipulation. The parties stipulated that semen was
       identified in both the oral and vaginal swabs gathered from G.R. Analysis of the sample
       recovered from the vaginal swab revealed a DNA profile that did not match defendant, and the
       sample recovered from the oral swab was insufficient to produce a DNA profile suitable for
       comparison.

¶ 25                                         E. S.B.’s Testimony
¶ 26       The State called S.B. to testify to other crimes evidence. S.B. testified that she was 16 years
       old and that defendant was her cousin. S.B. identified defendant in court. One night in May
       2010, S.B. was sitting on the front porch of her family’s apartment with defendant, her brother,
       and her brother’s girlfriend, all of whom were smoking marijuana and drinking liquor. S.B.
       denied drinking liquor but she admitted that she was high from smoking marijuana.

                                                    -5-
¶ 27       S.B. testified that, later that night, S.B. went to her grandmother’s former bedroom, locked
       the door, and went to sleep on the bed wearing a shirt, shorts, and underwear. S.B. explained
       that the lock on the bedroom door was a simple knob that could be unlocked using a finger.
       S.B. was alone in the bedroom when she went to sleep.
¶ 28       S.B. testified that, when she awoke, she observed that her shorts and underwear had been
       pulled down, and that defendant’s head was between her legs and he was licking her vagina.
       Defendant then sat up and attempted to insert his penis into S.B.’s vagina. Defendant’s penis
       touched S.B.’s vagina, but she told him to stop and she pushed him away. Defendant then left
       the bedroom without saying anything. S.B. pulled up her pants and walked into the living room
       five minutes later, where she observed her brother, his girlfriend, and defendant, but she did
       not tell them what had just happened because she was scared and did not want her brother to
       fight with defendant in the apartment. S.B. later told her cousin Jessica about the incident the
       following day.
¶ 29       On cross-examination, S.B. testified that, prior to trial, she told the assistant State’s
       Attorney that she was under the influence of alcohol on the night of the incident, in addition to
       being high on marijuana. S.B. also testified that she did not receive a medical exam until weeks
       later.
¶ 30       The State rested after S.B.’s testimony, and the trial court denied defendant’s motion for a
       directed finding. Defendant exercised his constitutional right not to testify.

¶ 31                                F. Closing, Conviction, and Sentence
¶ 32        At closing argument, the defense argued that G.R.’s testimony was unreliable, especially
       since there was a lack of physical evidence to corroborate her testimony. The State responded
       that defendant chose his victims based on their intoxication, and that the circumstantial
       evidence was sufficient to corroborate G.R.’s testimony that penetration occurred.
¶ 33        The trial court found that the evidence was “overwhelming” that defendant was present and
       that the State proved him guilty of criminal sexual assault beyond a reasonable doubt based on
       G.R.’s testimony that she recognized defendant’s voice and other corroborative evidence,
       including defendant’s repeated apologies.
¶ 34        At the sentencing hearing, the trial court denied defendant’s posttrial motion for a new
       trial. The State advised the trial court that, although G.R. was present in the courtroom for
       sentencing, she declined to provide a victim impact statement. The State then told the trial
       court, “We have no additional evidence. We only have argument.” In mitigation, the defense
       presented letters from defendant’s wife and sister, as well as a certificate of academic progress
       from the jail’s Pace staff, which acknowledged defendant’s progress in math. The defense also
       stated that the presentence investigation report had been reviewed by defendant and that the
       report was accurate. Defendant made a statement in allocution and apologized to his family
       and to G.R. specifically.
¶ 35        As the trial court began to pronounce the sentence, the State objected, stating, “I indicated
       that I had no evidence, but I did wish to argue.” The trial court responded, “I don’t do it like
       that. You are done.” The defense did not object or otherwise express interest in argument. The
       trial court then sentenced defendant to 14 years and 6 months in the IDOC. The trial court
       admonished defendant of his right to file a motion for reconsideration, but no such motion was
       filed.


                                                   -6-
¶ 36      This appeal follows.

¶ 37                                         ANALYSIS
¶ 38       On appeal, defendant argues: (1) that his conviction should be reversed because the
       victim’s testimony was insufficient to prove that defendant penetrated, or used force to
       penetrate, G.R.’s vagina beyond a reasonable doubt; and (2) that the case should be remanded
       for a new sentencing hearing because the trial court denied both parties the opportunity to
       present argument in aggravation and mitigation. For the following reasons, we affirm.

¶ 39                                   I. Sufficiency of the Evidence
¶ 40       Defendant first challenges the sufficiency of the evidence, arguing that the State did not
       prove defendant guilty of criminal sexual assault beyond a reasonable doubt because G.R.’s
       testimony was insufficient to prove that penetration occurred, and as a result, his conviction
       should be reversed. Alternatively, defendant argues that his conviction should be reduced to a
       battery since the evidence was insufficient to prove that penetration occurred by the use or
       threat of force. The State argues that G.R. was a credible witness and her testimony, along with
       other corroborative evidence, was sufficient to prove that penetration occurred by the use of
       force.
¶ 41       When reviewing the sufficiency of the evidence in a criminal case, we must determine
       whether, after viewing the evidence in the light most favorable to the State, any rational trier of
       fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson
       v. Virginia, 443 U.S. 307, 319 (1979); People v. Smith, 185 Ill. 2d 532, 541 (1999). “[A]
       reviewing court will not reverse a criminal conviction unless the evidence is so unreasonable,
       improbable or unsatisfactory as to create a reasonable doubt of the defendant’s guilt.” People
       v. Rowell, 229 Ill. 2d 82, 98 (2008). A reviewing court does not retry the defendant or
       substitute its judgment for that of the trier of fact with regard to the credibility of witnesses or
       the weight to be given to each witness’ testimony. People v. Jackson, 232 Ill. 2d 246, 280-81
       (2009); People v. Ross, 229 Ill. 2d 255, 272 (2008). Instead, “it is our duty to carefully examine
       the evidence while bearing in mind that the trier of fact is in the best position to judge the
       credibility of witnesses, and due consideration must be given to the fact that the fact finder saw
       and heard the witnesses.” People v. Herman, 407 Ill. App. 3d 688, 704 (2011) (citing People v.
       Cunningham, 212 Ill. 2d 274, 280 (2004), and People v. Smith, 185 Ill. 2d 532, 541 (1999)).

¶ 42                                     A. Evidence of Penetration
¶ 43        Defendant first claims that the State’s evidence was insufficient to prove that he penetrated
       G.R.’s vagina, an element of the offense of criminal sexual assault. Section 12-12(f) of the
       Illinois Criminal Code of 1961 (Criminal Code) defines “sexual penetration” as “any contact,
       however slight, between the sex organ or anus of one person by an object, the sex organ, mouth
       or anus of another person.” 720 ILCS 5/12-12(f) (West 2010). Defendant argues that G.R.’s
       testimony was unreliable because she admitted that she was intoxicated both before she went
       to sleep and after she woke up. Since G.R. testified that she was intoxicated and that she never
       actually observed something come out of her vagina, defendant argues that her statement that
       she was merely “pretty sure” that defendant’s penis was inside of her was nothing more than a
       drunken belief that something penetrated her and that she later concluded it was defendant’s

                                                    -7-
       penis. Additionally, defendant claims that there is no physical evidence to corroborate G.R.’s
       testimony since the pelvic exam revealed no abrasions or tears that would indicate forced
       entry, and that DNA profile recovered from the vaginal swab did not match defendant.
       Defendant concludes that this dearth of evidence was insufficient to prove beyond a reasonable
       doubt that he penetrated G.R. We do not find this argument persuasive.
¶ 44        In the case at bar, a rational trier of fact could have found that defendant penetrated G.R.’s
       vagina beyond a reasonable doubt. “The testimony of a single witness, if it is positive and the
       witness [is] credible, is sufficient to convict.” People v. Smith, 185 Ill. 2d 532, 541 (1999).
       Here, G.R. testified that she felt defendant’s penis come out of her when she pushed him off of
       her back, and when the defense asked G.R. on cross-examination if she had any doubt that
       defendant’s penis was in her vagina, she responded that she was “pretty sure it was his penis.”
       The trial court heard G.R.’s testimony and found her credible, and a rational trier of fact could
       have found that penetration occurred beyond a reasonable doubt.
¶ 45        Although defendant focuses on G.R.’s statement that she was only “pretty sure” that
       defendant’s penis was in her vagina, which defendant suggests is not sufficient to prove
       penetration, the Criminal Code does not require the State to prove specifically what type of
       penetration occurred. People v. Harper, 251 Ill. App. 3d 801, 806 (1993) (“In a case involving
       sexual penetration, the specific type of penetration is not an element of the offense.”); People
       v. Foley, 206 Ill. App. 3d 709, 718 (1990) (“The type of sexual penetration is not an element of
       the offense,” and “[t]he State need only prove that a type of sexual penetration occurred
       beyond a reasonable doubt.” (Emphasis in original.)). Even if G.R. was uncertain whether
       defendant penetrated her with his penis or with another object, her testimony that she felt
       something come out of her vagina as she pushed defendant away is sufficient to prove the
       element of penetration. Other parts of G.R.’s testimony are consistent with penetration
       occurring, such as her statements: (1) that defendant was on top of her (People v. Raymond,
       404 Ill. App. 3d 1028, 1058-59 (2010) (eyewitness testimony that defendant was lying on top
       of the victim consistent with penetration)); (2) that her shorts and underwear had been pulled
       down (People v. Bounds, 171 Ill. 2d 1, 43 (1995) (victim’s state of undress was consistent with
       penetration)); and (3) her prompt outcry and her statements to Iwona Wojas at the hospital
       (People v. Wych, 248 Ill. App. 3d 818, 824 (1993) (victim’s prompt outcry and statements to
       medical personnel consistent with penetration); People v. Bock, 242 Ill. App. 3d 1056, 1078
       (1993) (same)).
¶ 46        Furthermore, although G.R. testified that she was intoxicated both before she fell asleep
       and after she woke up, the appellate record does not support the inference that she was so
       inebriated that she was unable to sense an object in her vagina. G.R. testified that she stopped
       drinking liquor at 10 p.m. the night before the incident, that she was not dizzy or “falling over”
       drunk, and that she was coherent enough to provide defendant’s uncle with directions to his
       home after he dropped G.R. off before she went to sleep. She testified that she was only “a
       little” intoxicated when she awoke, and nurse Wojas testified that G.R. did not appear drunk
       when she examined G.R. at the hospital at 7 a.m.
¶ 47        Additionally, the physical evidence recovered for the sexual assault kit was not
       inconsistent with G.R.’s testimony. The parties stipulated that the lab results revealed that
       semen was found in samples recovered from both oral and vaginal swabs, but one DNA profile
       did not match defendant and the other was unsuitable for comparison. However, “[e]vidence of
       emission of semen is not required to prove sexual penetration.” 720 ILCS 5/12-12(f) (West

                                                    -8-
       2010). Here, the presence of semen could have originated from a prior sexual partner since
       G.R. did not testify that defendant ejaculated during the assault. In addition, a lack of vaginal
       trauma is not inconsistent with penetration. People v. Garcia, 2012 IL App (1st) 103590, ¶ 89
       (finding penetration without evidence of vaginal trauma). Although the pelvic exam did not
       reveal any tears or abrasions, which are often caused by forced entry, nurse Wojas testified that
       it is not common for such injuries to result from a sexual assault. Wojas explained that the
       vagina is designed to stretch, and abrasions may depend on how much lubrication is found in
       the vagina and the victim’s state of relaxation. Wojas testified that a person is generally relaxed
       when she is asleep, as G.R. was asleep when the penetration occurred. As such, the physical
       evidence is not inconsistent with G.R.’s testimony that defendant penetrated her.
¶ 48        We also note that, while there was no corroborating witness testimony concerning the
       finding of actual penetration, there was corroborating evidence of other aspects of G.R.’s
       recounting of the events. For instance, G.R.’s mother Relunda testified that she heard G.R. cry
       out for her, stating that defendant was on top of her. Relunda then observed defendant emerge
       from the bedroom and apologize, saying that he did not know it was G.R. Additionally, Wojas
       testified that G.R. told her at the hospital that she awoke with a man on her back, that her pants
       were pulled down, and that the man’s penis was in her vagina. S.B.’s testimony that defendant
       assaulted her while she was asleep is further corroboration that penetration occurred. People v.
       Cloutier, 156 Ill. 2d 483, 505-06 (1993). S.B. testified that she went to sleep while high on
       marijuana and that she woke up to find her pants pulled down and defendant licking her
       vagina. S.B. testified that defendant then attempted to insert his penis into her vagina and that
       she pushed him away to stop him. S.B’s testimony is similar to G.R.’s account since both
       victims fell asleep intoxicated with either liquor or drugs and woke up with their pants and
       underwear pulled down and felt defendant in contact with their genitals. This evidence of other
       crimes corroborated G.R.’s account and established the propensity of defendant to commit the
       charged crime. Donoho, 204 Ill. 2d at 175-76.
¶ 49        Defendant argues that Relunda’s testimony is unconvincing because she observed
       defendant standing in the hallway fully dressed shortly after awaking to her daughter’s cries.
       However, G.R. never testified whether or not defendant had his pants on during the assault, but
       she stated that he was wearing a hooded sweatshirt that concealed part of his face. The fact that
       Relunda observed defendant in the hallway fully clothed does not discredit G.R.’s testimony
       because it may have taken defendant only a matter of seconds to pull up and fasten his pants by
       the time Relunda observed him exit the bedroom. Defendant also claims that S.B.’s testimony
       was not credible because she was high at the time of the alleged assault. However, there is
       nothing in S.B.’s testimony that suggests that she was so intoxicated that she misperceived the
       entire incident the next morning.
¶ 50        As stated, the trial court observed G.R. testify and it found her to be credible. We cannot
       say that the evidence at trial was so unreasonable, improbable, or unsatisfactory as to give rise
       to a reasonable doubt that penetration occurred, and we decline to reverse defendant’s
       conviction as a result.

¶ 51                              B. Evidence of Use or Threat of Force
¶ 52       Defendant alternatively claims that, even if penetration occurred, the evidence was
       insufficient to prove that defendant used physical force to complete the assault. In the case at
       bar, defendant was convicted of criminal sexual assault pursuant to section 12-13(a)(1) of the

                                                    -9-
       Criminal Code, which states, “The accused commits criminal sexual assault if he or she ***
       commits an act of sexual penetration by the use of force or threat of force ***.” 720 ILCS
       5/12-13(a)(1) (West 2010). A conviction for criminal sexual assault cannot be sustained by
       merely establishing that the victim did not consent. People v. Haywood, 118 Ill. 2d 263, 274
       (1987). Force is the essence of the crime of rape. People v. Taylor, 48 Ill. 2d 91, 100 (1971).
       The Criminal Code states that “the use of force or violence, or the threat of force or violence”
       includes, but is not limited to, “the following situations: (1) when the accused threatens to use
       force or violence on the victim or on any other person, and the victim under the circumstances
       reasonably believed that the accused had the ability to execute that threat; or (2) when the
       accused has overcome the victim by use of superior strength or size, physical restraint or
       physical confinement.” 720 ILCS 5/12-12(d) (West 2010). “There is no definite standard
       establishing the amount of force which the State is required to prove in order to prove criminal
       sexual assault, and each case must be considered on its own facts.” People v. Vasquez, 233 Ill.
       App. 3d 517, 527 (1992) (citing People v. Bolton, 207 Ill. App. 3d 681, 686 (1990), and People
       v. Nelson, 148 Ill. App. 3d 811, 820 (1986)).
¶ 53       Defendant argues that, even if G.R.’s testimony is credible, there is no evidence in her
       account that defendant used force to penetrate her. G.R. testified that she awoke on her
       stomach, still intoxicated, with a man on her back. She then attempted to push him off of her
       but was slow to do so. Defendant argues that this is because she had just woke up and was
       intoxicated and groggy, and not the result of defendant forcing himself on her. Defendant
       argues that, once G.R. woke up, he did not use any force to penetrate her, and that the only
       action that occurred was G.R. pushing him away. As a result, defendant argues the evidence
       was insufficient to prove him guilty of criminal sexual assault. Defendant also notes that,
       although one may be guilty of criminal sexual assault under section 12-13(a)(2) for having sex
       with a victim who is asleep, defendant was instead charged under section 12-13(a)(1), which
       requires the use of force. Nevertheless, defendant argues that his conviction should be reduced
       to a battery since there was no evidence of force.
¶ 54       However, defendant used force to penetrate G.R. because he used his weight while lying on
       top of G.R. to continue the act of penetration. “Force” within the meaning of section 12-12(d)
       requires something more than the force inherent in the sexual penetration itself. People v.
       Denbo, 372 Ill. App. 3d 994, 1007 (2007). A person can “passively force someone to continue
       with the sex act by using one’s bodily inertia to prevent [the victim] from disengaging.”
       Denbo, 372 Ill. App. 3d at 1008. Here, G.R. testified that when she awoke, she could not get up
       because defendant was on top of her. At this point, defendant was using his weight to continue
       the act of penetration while G.R. unsuccessfully attempted to stop him. The trial court heard
       G.R.’s testimony and found her credible, and we cannot say that no rational trier of fact could
       find that force was used to complete the sexual assault based on G.R.’s testimony. As a result,
       the evidence was sufficient for a guilty finding of penetration beyond a reasonable doubt, and
       we affirm defendant’s conviction.
¶ 55       Defendant compares this case to Vasquez, where the appellate court reversed defendant’s
       conviction for aggravated sexual assault because the State did not prove the element of force.
       Vasquez, 233 Ill. App. 3d at 529. The appellate court noted that the only evidence tending to
       show force was the 13-year-old male victim’s testimony that the defendant placed his hand on
       the back of the victim’s head and forced his head down onto the defendant’s penis. Vasquez,
       233 Ill. App. 3d at 527. The appellate court found that no rational trier of fact could have found


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       the element of force was proven beyond a reasonable doubt since the victim admitted that the
       defendant did not threaten or hurt him and that he did not resist the defendant’s efforts.
       Vasquez, 233 Ill. App. 3d at 527. Defendant also cites People v. Warren, 113 Ill. App. 3d 1, 4-5
       (1983), where the State failed to show “force or threat of force” where the taller and heavier
       defendant told the victim “ ‘I don’t want to hurt you,’ ” lifted the victim and carried her toward
       a wooded area, pulled down her pants, and kissed her breasts and vaginal area. Defendant
       argues that the State presented even less evidence of force in the instant case than in Vasquez
       and Warren because G.R. was asleep when the assault began, awoke to find defendant on top
       of her, and felt a penis come out of her as she pushed him off. Defendant argues that there is
       nothing in G.R.’s testimony to support the claim that force was used to penetrate her because
       she was asleep throughout the assault, and that defendant made no attempt to continue the act
       when she woke up and that he instead retreated to the wall and covered his genitals,
       apologizing.
¶ 56        However, Vasquez and Warren are factually distinguishable because, contrary to
       defendant’s claim, there was ample evidence of force since G.R.’s testimony indicates that
       defendant used his position and weight to continue the act of penetration while she attempted
       to push him away. The appellate court’s discussion of withdrawn consent in Denbo, 372 Ill.
       App. 3d at 1007, is instructive here. In that case, the appellate court found that the actions of
       the female defendant, by sitting on top of the victim and not removing her hand from the
       victim’s vagina, constituted force beyond what is inherent to the sex act itself. Denbo, 372 Ill.
       App. 3d at 1007. Although this case does not involve the issue of withdrawn consent, the
       appellate court discussed the element of force with a hypothetical: “[I]f B wishes to have sex
       no longer, B will surely disengage if he or she is able to do so, and if, by his or her physical
       posture, A prevents B from disengaging–for example, by continuing to lie on top of B
       [citation]–A thereby forces B to continue with the sexual penetration.” Denbo, 372 Ill. App. 3d
       at 1007. The Denbo court concluded that, “One can, in a manner of speaking, passively force
       someone to continue with the sex act by using one’s own bodily inertia to prevent the partner
       from disengaging. This would be force beyond that inherent to the sex act itself.” Denbo, 372
       Ill. App. 3d at 1008. In the instant case, defendant used his position and body weight as inertia
       to prevent G.R. from disengaging after she woke up. Although the State did not provide
       evidence concerning the respective height and weight of G.R. and defendant, G.R.’s testimony
       reveals that she struggled to free herself while defendant was lying on her back. As a result,
       defendant used force beyond the initial sex act to continue penetrating G.R. even as she
       attempted to push him away. We cannot say that the evidence at trial was so unreasonable,
       improbable, or unsatisfactory as to give rise to a reasonable doubt that defendant used force to
       penetrate G.R., and we decline to reverse defendant’s conviction as a result.

¶ 57                      II. Opportunity to Argue at the Sentencing Hearing
¶ 58       Next, defendant argues that this case should be remanded for resentencing because the trial
       court denied both parties the opportunity to present argument at the sentencing hearing.
       Section 5-4-1(a)(5) of the Illinois Unified Code of Corrections (730 ILCS 5/5-4-1(a)(5) (West
       2010)) provides that, at a sentencing hearing within a felony proceeding, “the court shall ***
       hear arguments as to sentencing alternatives.” Defendant argues that the word “shall” signifies
       that argument is a mandatory component of a sentencing hearing, and that the trial court
       committed reversible error when it denied the parties an opportunity to argue. Although


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       defendant concedes that he is unaware of any case law directly concerning the mandatory
       nature of section 5-4-1(a)(5), he contends that it should be treated similarly to the requirement
       that the trial court must order and review a presentence investigation report prior to the
       imposition of a sentence. People v. Youngbey, 82 Ill. 2d 556, 565 (1980) (finding that a
       presentence report is for the “enlightenment of the court,” as well as for the benefit of the
       defendant). As a result, defendant claims that this case should be remanded for a new
       sentencing hearing since the defense was not provided an opportunity to present argument,
       citing People v. Hammonds, 21 Ill. App. 3d 5, 7-8 (1974) (remanding case for resentencing
       where the trial court did not consider a presentence investigation report, hear evidence in
       mitigation or aggravation, or allow argument as to sentencing alternatives), and People v.
       Sterling, 62 Ill. App. 3d 986, 990-91 (1978) (remanding case for resentencing where the
       defense’s argument at the sentencing hearing was restricted and defendant was barred from
       making a statement in allocution).
¶ 59        However, defendant has forfeited this issue on appeal because he neither objected at trial,
       nor filed a posttrial motion preserving the issue. “[T]o preserve a claim of sentencing error,
       both a contemporaneous objection and a written postsentencing motion raising the issue are
       required.” People v. Hillier, 237 Ill. 2d 539, 544 (2010). See also 730 ILCS 5/5-8-1(c) (West
       2006) (“[a] defendant’s challenge to the correctness of a sentence or to any aspect of the
       sentencing hearing shall be made by a written motion filed within 30 days following the
       imposition of sentence”). The challenge is considered waived on appeal if a defendant fails to
       satisfy either prong of this test. People v. Enoch, 122 Ill. 2d 176, 186 (1988). “[T]he plain-error
       doctrine allows a reviewing court to consider unpreserved error when (1) a clear or obvious
       error occurred and the evidence is so closely balanced that the error alone threatened to tip the
       scales of justice against the defendant, regardless of the seriousness of the error, or (2) a clear
       or obvious error occurred and that error is so serious that it affected the fairness of the
       defendant’s trial and challenged the integrity of the judicial process, regardless of the closeness
       of the evidence.” People v. Piatkowski, 225 Ill. 2d 551, 565 (2007). In a plain error analysis, “it
       is the defendant who bears the burden of persuasion.” People v. Woods, 214 Ill. 2d 455, 471
       (2005). However, in order to find plain error, we must first find that the trial court committed
       some error. Piatkowski, 225 Ill. 2d at 565 (“the first step is to determine whether error
       occurred”).
¶ 60        In the instant case, the defense neither objected at trial that it was barred from arguing at the
       sentencing hearing, nor did it file a posttrial motion raising the issue. As a result, defendant has
       waived the issue on appeal. Defendant argues that the waiver rule should be relaxed in this case
       because the defense did not have an opportunity to object where the trial court announced the
       sentence immediately after defendant’s statement in allocution. However, the appellate record
       indicates the defense had ample opportunity during the sentencing hearing to object, including
       well before the State’s objection, and the defense never once expressed interest in arguing. We
       note that this may have been a strategic decision since the defense presented evidence in
       mitigation, while the State presented nothing at all. Defendant also argues that an objection
       would have been futile because the trial court already overruled the State’s objection. People v.
       Taylor, 357 Ill. App. 3d 642, 647 (2005) (finding that “the fundamental importance of a fair
       trial and the practical difficulties involved in objecting to the trial court’s conduct compel a less
       rigid application of the waiver rule”). However, the trial court’s response, “You are done,” was



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       clearly directed at the State’s objection that it did not receive an opportunity to argue as it
       requested, and the trial court did not explicitly bar defendant from arguing.
¶ 61       Defendant additionally argues that his claims should be considered under the second prong
       of the plain error analysis because defendant has a substantial right to a fair sentencing hearing.
       People v. Herron, 215 Ill. 2d 167, 187 (2005) (plain error doctrine allows a reviewing court to
       consider unpreserved errors that are so serious that they challenge the integrity of the judicial
       process); People v. Blue, 189 Ill. 2d 99 (2000). See also People v. Simms, 143 Ill. 2d 154, 170
       (1991) (plain error in jury instructions was sufficiently grave to have deprived defendant of a
       fair sentencing hearing).
¶ 62       As stated, “the first step is to determine whether error occurred.” Piatkowski, 225 Ill. 2d at
       565. Here, the trial court did not commit an error that prejudiced defendant since it did not bar
       the defense from presenting argument. At the sentencing hearing, the State declined to present
       any evidence and instead informed the trial court that it only wished to argue. The defense then
       presented evidence in mitigation, but it did not argue or request an opportunity for argument.
       As the trial court began to pronounce the sentence, the State objected and advised the trial court
       that it still wished to argue, to which the trial court responded, “I don’t do it like that. You are
       done.” It is clear from this exchange that the trial court only disallowed the State’s argument
       when it denied the State’s request stating, “You are done.” (Emphasis added.) Since the defense
       presented evidence but never requested argument, the trial court did not prevent the defense
       from presenting argument at the sentencing hearing.
¶ 63       Defendant claims that the trial court did in fact bar both parties from arguing because the
       “you” in that phrase “you are done” was plural and directed at both parties. Also, defendant
       claims that the trial court’s statement, “I don’t do it like that,” served as a blanket prohibition
       against argument for both parties. However, “ ‘[t]he plain error exception will be invoked only
       where the record clearly shows that an alleged error affecting substantial rights was
       committed.’ ” (Emphasis in original.) People v. Hillier, 237 Ill. 2d 539, 549 (2010) (quoting
       People v. Hampton, 149 Ill. 2d 71, 102 (1992)). Even if defendant is correct that the trial
       court’s statements were equivocal, they still would not amount to a clear and obvious error,
       which is required to find plain error. Here, the appellate record shows that the trial court was
       addressing the State and responding to its request for argument, and that it then denied only the
       State the opportunity to argue. As such, the trial court did not err because it did not bar
       defendant from presenting argument at the sentencing hearing, and we affirm defendant’s
       conviction and sentence.

¶ 64                                         CONCLUSION
¶ 65       For the foregoing reasons, we find that: (1) the State proved beyond a reasonable doubt that
       defendant penetrated G.R.’s vagina and used force to continue that penetration; and (2) that
       defendant was not prejudiced when the trial court denied the State an opportunity to argue at
       the sentencing hearing. As a result, we affirm defendant’s conviction and sentence.

¶ 66      Affirmed.




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