                                         2018 IL App (1st) 151892

                                               No. 1-15-1892

                                                                                          FIRST DISTRICT
                                                                                         November 19, 2018


THE PEOPLE OF THE STATE OF ILLINOIS,                             )   Appeal from the Circuit Court
                                                                 )   of Cook County.
                    Plaintiff-Appellee,                          )
                                                                 )
v. 	                                                             )   No. 10 CR 15639
                                                                 )
VICTOR DENIS,                                                    )
                                                                 )   Honorable Gregory Robert Ginex
                    Defendant-Appellant.                         )   Judge Presiding.


        JUSTICE GRIFFIN delivered the judgment of the court, with opinion. 

        Justice Pierce and Justice Walker concurred in the judgment and opinion. 


                                                  OPINION

¶1      During an argument in 2010, M.D., the minor victim in this case, told her mother that she

had been raped as a young child. The next day, M.D. identified her rapist as defendant Victor

Denis. M.D.’s mother alerted the police, and defendant was arrested for his alleged commission

of sexual acts against M.D. on two separate occasions in 1999. Defendant was read his Miranda

rights (see Miranda v. Arizona, 384 U.S. 436 (1966)) and confessed during a police interview.

Six hours later, defendant gave a written confession. Defendant said he raped M.D. on one

occasion and placed M.D.’s hand on his penis on another occasion.

¶2      Defendant was arrested and charged with one count of predatory criminal sexual assault

of a child (720 ILCS 5/12-14.1(a)(1) (West 1998) 1), three counts of criminal sexual assault (id.

§ 12-13(a)(2), (a)(3) 2), and four counts of aggravated criminal sexual abuse (id. § 12-16(c)(1)(i)).



        1
        Public Act 96-1551 (eff. July 1, 2011) amended section 12-14.1 and renumbered it as section 11-1.40. See
720 ILCS 5/11-1.40 (West 2014).
No. 1-15-1892


¶3      Before trial, defendant asked the trial court for a fitness determination. The trial court

granted his request and found defendant fit to stand trial. Defendant filed a motion to suppress

his confession, which proceeded to a hearing. The trial court heard testimony from defendant’s

expert witness that he had an IQ of 73 and a limited mental capacity. The State’s expert witness

testified that, despite his limited mental capacity, defendant understood his Miranda rights and

understood his actions in 1999. The trial court denied defendant’s motion.

¶4      The case proceeded to a bench trial, and the trial court found defendant guilty of criminal

sexual assault (id. § 12-13(a)(2)) and aggravated criminal sexual abuse (id. § 12-16(c)(1)(i) 3).

The trial court sentenced defendant to serve three- and five-year terms of imprisonment,

respectively, and ordered the sentences to run concurrently. The trial court denied defendant’s

posttrial motions. As a result of his convictions, defendant was required to register as a sex

offender for the remainder of his natural life under the Sex Offender Registration Act (SORA)

(730 ILCS 150/1 et seq. (West 2014)).

¶5      Defendant appeals his convictions, arguing that (1) the evidence was insufficient to prove

him guilty of aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(1)(i) (West 1998)) and

criminal sexual assault (id. § 12-13(a)(2)) beyond a reasonable doubt, (2) the State failed to

prove beyond a reasonable doubt that defendant knew M.D. was unable to understand the nature

of his sexual act and unable to give knowing consent to it, (3) the trial court erred when it

allowed M.D.’s mother to testify that M.D. had been raped by defendant, (4) the trial court erred

when it ordered defendant to serve a longer mandatory supervised release term than was in effect

when he committed the sexual act that supported his conviction for criminal sexual assault (id.),


        2
         Public Act 96-1551 (eff. July 1, 2011) amended section 12-13 and renumbered it as section 11-1.20. See
720 ILCS 5/11-1.20 (West 2014).
       3
         Public Act 96-1551 (eff. July 1, 2011) amended section 12-16 and renumbered it as section 11-1.60. See
720 ILCS 5/11-1.60 (West 2014).

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No. 1-15-1892


and (5) SORA and related statutes are facially unconstitutional.

¶6                                      BACKGROUND

¶7     M.D. and her mother got into an argument in July 2010. During the argument, M.D. told

her mother that she had been raped as a young child. The next day, M.D. revealed the identity of

the alleged rapist: her cousin, defendant Victor Denis. M.D.’s mother reported the information to

the Cicero Police Department, and Detective Jason Stroud was assigned to investigate the case.

¶8      Following an initial interview with M.D. at the police station, Detective Stroud went to

M.D.’s home where she identified defendant in a photo array. Detective Stroud and his partner

set out to locate defendant and found him at his home. Defendant agreed to speak with the

Detectives and accompanied them to the police station for an interview. At the station, Detective

Stroud read defendant his Miranda rights and asked defendant if he understood them. Defendant

answered in the positive. Defendant proceeded to read his Miranda rights, initialed and signed a

preprinted Miranda form, and said he wanted to speak with the police. After Detective Stroud

informed defendant of M.D.’s allegations, he wanted to give his side of the story.

¶9     Defendant told Detective Stroud that two “incidents” occurred, when he was 18 years old

and M.D. was 7, but he could not remember which incident happened first. One of the incidents

occurred at M.D’s home. Defendant and M.D. were sitting on the couch with a blanket covering

them. Defendant stated that M.D. wanted to touch defendant’s penis, so he let her. M.D. touched

defendant’s penis in an up-down motion.

¶ 10   The other incident occurred in M.D’s room. Defendant stated that he was with M.D. on

her bed when she asked defendant to have sex. Defendant took off his pants, and M.D. took off

her pants. Defendant placed his penis in her vagina for five minutes. After defendant made these

statements, Detective Stroud contacted Assistant State’s Attorney Randall Tyner.


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No. 1-15-1892


¶ 11   Before interviewing defendant, Tyner reread defendant his Miranda rights with Detective

Stroud present. Defendant said he understood his Miranda rights, agreed to speak with Tyner,

and further agreed give a written statement. Tyner typed out defendant’s five-page written

statement on a computer and read the statement aloud. Defendant’s statement started with his

personal history: he finished the tenth grade, lived on his own in California before moving back

to Illinois to live with his mother and grandmother, and worked construction jobs without steady

work. Defendant then explained what happened with M.D. on two occasions in 1999.

¶ 12   Defendant stated that in the fall of 1999, when he was 18 years old and M.D. was 7,

defendant helped M.D.’s mother move into a new house in Cicero. Defendant would often spend

the night there, and on one occasion in the winter of 1999, M.D. asked if she could see his

private area and touch his penis. Defendant stated that he allowed M.D. to touch his erect penis

and that she grabbed and rubbed it for a couple minutes. Defendant moved her hand away and

told her not to tell anyone what happened.

¶ 13   Defendant further stated that on a second occasion in the winter of 1999, he was at

M.D.’s house. This time, M.D. and defendant were alone in M.D.’s bedroom. After defendant

removed his pants, M.D. removed her pants, and defendant took his penis and put it inside of

M.D.’s vagina. Defendant stated that he had an erection, and after about five minutes, removed

his penis from M.D. and ejaculated on her bed. He told M.D. not to tell anyone what happened.

¶ 14   Defendant was placed under arrest and charged with one count of predatory criminal

sexual assault of a child (count I) (id. § 12-14.1(a)(1)); two counts of criminal sexual assault,

which alleged that defendant knew that M.D. was unable to understand the nature of the act and

unable to give knowing consent (counts II and III) (id. § 12-13(a)(2)); one count of criminal

sexual assault, which alleged that defendant was M.D.’s family member (count IV) (id. § 12­


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No. 1-15-1892


13(a)(3)); and four counts of aggravated criminal sexual abuse (counts V, VI, VII, and VIII) (id.

§ 12-16(c)(1)(i)).

¶ 15   Before trial, defendant asked the trial court for an expert to determine whether he (1) was

fit to stand trial, (2) understood his Miranda rights, and (3) understood his actions in the winter

of 1999. The trial court granted defendant’s request. Defendant was examined by Dr. Fidel

Echevarria, who submitted a letter to the trial court indicating that, in his opinion, defendant was

mentally fit to stand trial, understood his Miranda rights, and would have understood his actions

during the time period indicated in the indictment: between August 1999 and December 1999.

Defendant filed a motion to suppress his confession as involuntary, arguing that the police

coerced his confession and he was unable to comprehend his Miranda rights. Defendant’s

motion proceeded to a hearing.

¶ 16   Defendant testified at the hearing and stated that the police made a promise that he could

go home. He testified that was he was read his Miranda rights, initialed and signed the Miranda

form, and signed his written statement. He was not threatened to give his written statement, and

no one told him what to include in his statement. Defendant did, however, testify that he did not

understand all of his Miranda rights. Defendant’s expert witness, psychologist Theresa

Schaeffer, testified next.

¶ 17   Schaeffer interviewed defendant in 2008 when he was 26 years old. Schaeffer testified

that she tested defendant’s cognitive abilities under the Wechsler Adult Intelligence Scale, third

edition (WAIS), and the Wide Range Achievement Test, fourth edition (WRAT). The WAIS was

an intellectual quotient (IQ) test, while the WRAT assessed and assigned grade levels to

academic categories (spelling, math, reading, and sentence comprehension). Schaeffer testified

that the WAIS placed defendant’s IQ at 73, which indicated that he had borderline intellectual


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No. 1-15-1892


function. Schaeffer testified that an IQ of 69 would indicate a mental deficiency. The results of

defendant’s WRAT were also low and indicated to Schaeffer that “it would be questionable

whether or not [defendant] processes or comprehends things much the way a person in the

average range of intelligence would.”

¶ 18   The State called Dr. Echevarria, who had previously examined defendant and determined

he was fit to stand trial. Dr. Echevarria testified to having reviewed Schaeffer’s report and

concluded that her findings were consistent with his observations of defendant. Dr. Echevarria

then testified about how his interview of defendant proceeded. First, Dr. Echevarria assessed

defendant’s ability to follow instructions. Second, he asked defendant questions about the

criminal process. Third, Dr. Echevarria focused on Miranda rights and their meaning.

¶ 19   Dr. Echevarria concluded that defendant appeared to appreciate a reasonable

understanding of Miranda rights and understood his actions in 1999. Agreeing that defendant

had borderline intellectual function, Dr. Echevarria testified that defendant could learn but that

the learning process was slower and required repetition and reinforcement. Dr. Echevarria

admitted on cross-examination that a defendant can learn Miranda rights while in custody and

through prolonged exposure to the justice system.

¶ 20   The trial court denied defendant’s motion to suppress his confession, ruling:

       “There’s no doubt in this Court’s mind that Mr. Denis has some borderline

       intellectual deficiency. *** However, none of that in this Court’s mind indicates

       that the Defendant was not able to not only appreciate what was said, he was able

       to understand what was said. The statement was given freely and voluntarily, and

       I do not find there were any promises. I do not find, and this record will be clear,




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No. 1-15-1892


       that because of any actions of the police or State’s attorney or anyone, the

       Defendant’s will was overcome.”


The case proceeded to a bench trial.

¶ 21   M.D., who was 22 years old at the time of trial, testified that she was 7 years old when

defendant, her first cousin, raped her. M.D. testified that she and defendant would hang out

together and that she regarded him as “part of the family.” M.D. testified that, in November or

December 1999, her family moved into a new home and, for the first time, she had her own

bedroom. She wanted to show defendant her new bedroom and “Barbie” sheets. M.D. testified

that she and defendant were in her bedroom when defendant took off his pants, removed her

pants, and penetrated her vagina with his erect penis. Defendant then “pulled out,” and M.D.

noticed a wet substance on her sheets. Defendant told M.D. that the wet substance was for her

and not to tell anyone about what happened.

¶ 22   M.D. testified to another incident that occurred in late 1999. She and defendant were at

her house watching television. They were on the couch with a blanket covering them. Defendant

placed her hand directly on his erect penis and moved her hand “multiple times” on his penis.

Defendant pulled up his pants and told M.D. not to tell anyone about what happened.

¶ 23   M.D. did not tell anyone what happened because she was afraid, did not understand what

was going on, and “did not know what would happen or if [she] would be in trouble.” Years

later, M.D. told her friends what happened in the form of a secret.

¶ 24   M.D. further testified about telling her mother that she had been raped by defendant. In

July 2010, M.D. was living in her mother’s home with M.D.’s newborn daughter. M.D. and her

mother got into an argument, and M.D. stated “you act like you’re the only one that was raped

*** I was also raped.” M.D.’s mother had previously told M.D. that she had been raped.

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No. 1-15-1892


However, this was the first time M.D. told her mother that she too had been raped. In a

conversation the next day, M.D. told her mother that defendant had raped her.

¶ 25   M.D.’s mother testified that in July 2010 she got into an argument with M.D. and, during

the argument, M.D. told her that she had been raped. Defense counsel objected to the statement

as hearsay, highlighting the State’s failure to file a motion pursuant to section 115-10 of the

Code of Criminal Procedure of 1963 (725 ILCS 5/115-10 (West 2014)), which allows a witness

to testify to a child’s hearsay statement under certain circumstances that safeguard the

statement’s reliability. The trial court overruled the objection, stating that “[t]here’s been no 115­

10, correct; but this is an outcry. I believe it’s relevant and permissible.” M.D.’s mother

continued to testify that, the day after their argument, M.D. told her that it was defendant who

raped her. Defense counsel again objected to the statement as hearsay. The trial court overruled

the objection.

¶ 26   Detective Stroud testified that he interviewed M.D., spoke with her high school friends,

and then interviewed M.D. a second time. Detective Stroud testified that he located defendant,

who agreed to accompany him and his partner to the police station. Detective Stroud read

defendant his Miranda rights, and within the hour, defendant confessed to having committed

sexual acts against M.D. on two separate occasions about 10 years earlier.

¶ 27   Detective Stroud testified that he contacted Tyner, who reread defendant his Miranda

rights. Defendant agreed to speak with Tyner and to give a written statement. Tyner typed out

defendant’s statement and read the statement aloud, and all parties signed the statement.

Defendant gave his written statement after spending six hours at the police station. Detective

Stroud stressed that he had no idea defendant suffered from any cognitive issues.

¶ 28   The State rested its case, and defendant moved for a directed finding. The trial court


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No. 1-15-1892


granted defendant’s motion in part and dismissed count IV of the indictment because defendant

was M.D.’s first cousin and not a family member under the criminal sexual assault statute. See

720 ILCS 5/12-12(c) (West 1998); id. § 12-13(a)(3).

¶ 29   By way of stipulation, defendant submitted the testimony of Schaeffer given at the

hearing on defendant’s motion to suppress his confession. In rebuttal and also by way of

stipulation, the State submitted the testimony of Dr. Echevarria given at the same hearing.

¶ 30   The trial court found defendant guilty of two counts of criminal sexual assault (counts II

and III) (id. § 12-13(a)(2)) and two counts of aggravated criminal sexual abuse (counts V and

VI) (id. § 12-16(c)(1)(i)). The trial court found defendant not guilty of one count of predatory

criminal sexual assault of a child (count I) (id. § 12-14.1(a)(1)) and two counts of aggravated

criminal sexual abuse (counts VII and VIII) (id. § 12-16(c)(1)(i)).

¶ 31   Defendant filed a motion for a new trial, asking the trial court to reconsider its finding of

guilt because the State failed to prove beyond a reasonable doubt that defendant knew M.D. was

unable to understand the nature of or knowingly consent to his sexual act. See id. § 12-13(a)(2).

The trial court denied defendant’s motion.

¶ 32   The trial court merged count III into count II and count VI into count V. The trial court

sentenced defendant to serve five years’ imprisonment on count II with a mandatory supervised

release period of three years to life. The trial court sentenced defendant to serve three years’

imprisonment on count V with a mandatory supervised release period of two years. Over the

State’s objection, the trial court ordered defendant’s sentences to run concurrently. Defendant’s

convictions triggered mandatory lifetime registration under SORA. Defendant filed a motion to

reconsider his sentence, which was denied. Defendant appeals his convictions.

¶ 33                                      ANALYSIS


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No. 1-15-1892


¶ 34    The issues on appeal are (1) whether any rational trier of fact could have found defendant

guilty of aggravated criminal sexual abuse (id. § 12-16(c)(1)(i)) and criminal sexual assault (id.

§ 12-13(a)(2)) beyond a reasonable doubt, (2) whether the State proved beyond a reasonable

doubt that defendant knew M.D. was unable to understand the nature of his sexual act and unable

to give knowing consent to it, (3) whether the trial court erred when it allowed M.D.’s mother to

testify that M.D. had been raped by defendant, (4) whether the trial court erred when it ordered

defendant to serve a longer mandatory supervised release term than was in effect when he

committed the sexual act that supported his conviction for criminal sexual assault, (5) whether

SORA and separate statutes are facially unconstitutional.

¶ 35                              I. Sufficiency of the Evidence

¶ 36    Defendant argues that the evidence does not support the trial court’s finding of guilt

beyond a reasonable doubt. We view the evidence in a light most favorable to the State to

determine whether any rational trier of fact could have found the elements of aggravated criminal

sexual abuse (id. § 12-16(c)(1)(i)) and criminal sexual assault (id. § 12-13(a)(2)) beyond a

reasonable doubt. People v. Bradford, 2016 IL 118674, ¶ 12. All reasonable inferences from the

evidence are drawn in the State’s favor and we will not reverse defendant’s convictions unless

the evidence is so unreasonable, improbable, or so unsatisfactory as to justify a reasonable doubt

of his guilt. Id.

¶ 37    In order to sustain a finding of guilt beyond a reasonable doubt on the charges of criminal

sexual assault (720 ILCS 5/12-13(a)(2) (West 1998)), the State was required to show that

defendant committed an act of sexual penetration against M.D. (contact between defendant’s

penis and M.D’s vagina) knowing she was unable to understand the nature of defendant’s sexual

act and unable to give knowing consent to it.


                                                10 

No. 1-15-1892


¶ 38   As to the charges of aggravated criminal sexual abuse (id. § 12-16(c)(1)(i)), the State was

required to show that defendant was 17 years age or over when he knowingly committed an act

of sexual conduct against M.D. (placed M.D’s hands on defendant’s penis) and that M.D was

under the age of 13 when the act was committed. Sexual conduct is any knowing touching or

fondling by the victim or the accused, either directly or through clothing, of the sex organs or

any part of the body of a child under the age of 13 for the purpose of sexual gratification or

arousal of the victim or the accused. See id. § 12-12(e).

¶ 39   Defendant’s challenge to the sufficiency of the evidence is twofold. He argues that

M.D.’s testimony was not credible and defendant’s written confession was unworthy of belief.

¶ 40                            A. The Credibility of M.D.’s Testimony

¶ 41   Defendant argues that M.D.’s bipolar disorder and depression diagnoses affected her

credibility and raised reasonable doubt of defendant’s guilt. At trial, M.D. and her mother

testified that M.D. was diagnosed with bipolar disorder and later rediagnosed with depression.

M.D. testified that she was prescribed an antidepressant and then denied having experienced any

“hallucinations or delusion” prior to her diagnosis on cross-examination.

¶ 42   Illinois courts have broadly stated that almost any emotional or mental defect may

materially affect the accuracy of a witness’s testimony and, therefore, due regard should be given

to witnesses’ mental condition when determining credibility. People v. Hogan, 388 Ill. App. 3d

885, 896 (2009). The trial court offered the following on the issue of M.D.’s diagnoses:

       “[M.D.] was diagnosed as bipolar, although the record doesn’t indicate why. It

       doesn’t indicate whether she was on any medication or whether—or how long she

       was diagnosed except to say that she believes she got some antidepressant

       medication. That’s all. The record doesn’t indicate anything further. *** Again,


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No. 1-15-1892


       nothing in the record indicates medication, what the prognosis is, how severe that

       particular bipolar is or what the reason was for it.”


¶ 43   A review of the record clearly indicates that defendant failed to show how M.D.’s

diagnoses materially affected the accuracy of her testimony or compromised her ability to

perceive, relate, or remember the occurrences to which she testified. See People v. Bean, 137 Ill.

2d 65, 102 (1990) (mental health records that failed to reveal the witness to be lacking in her

abilities to perceive, remember, or relate the occurrences about which she testified were

irrelevant). We reject defendant’s unsupported assertion that her diagnoses affected her

credibility and defer to the trial court’s finding that M.D. was credible. People v. Siguenza-Brito,

235 Ill. 2d 213, 228 (2009) (reversal of a conviction is not warranted where defendant simply

claims that a witness was not credible).

¶ 44                                  B. M.D.’s Delayed Outcry

¶ 45   Defendant argues that M.D.’s testimony is not credible because she waited more than 10

years to tell her mother that she was raped. The State argues that the delay was reasonable.

¶ 46   We refuse to allow an hourglass to determine whether M.D.’s outcry was reasonable. See

People v. Bowen, 241 Ill. App. 3d 608, 620 (1993) (“[t]o fix a time limit in which a complaint

must be made with the police in order for a victim’s testimony to be deemed credible would

place an unnecessary burden on the victim and trivialize defendant’s actions”). Victims of sexual

abuse are often threatened by their abusers not to disclose the improper sexual conduct. People v.

Zwart, 151 Ill. 2d 37, 45 (1992) (recognizing that a child’s delay in reporting abuse may be

explained by the fact that victims are often threatened not to tell anyone about the abuse). M.D.’s

testimony illustrates the point.

¶ 47   On cross-examination, M.D. testified that “[defendant] was family. I didn’t know if, I

                                                 12 

No. 1-15-1892


didn’t know if that was right or wrong. I didn’t understand what was going on.” When asked on

direct examination why she did not tell anyone about the incidents in 1999, M.D. provided the

following answer: “I did not understand and I was afraid. I was afraid of the fact that I did not

understand what was going on. And I did not know what would happen or if I would be in

trouble.” M.D. learned about what happened to her in sexual education class and became afraid

of defendant when she realized that what he had done “wasn’t right.” More importantly, M.D.

testified that defendant told her not to tell anyone about the sexual acts.

¶ 48   We hold that M.D’s silence was not unreasonable, as it was attributed to fear, shame,

guilt and embarrassment. Bowen, 241 Ill. App. 3d at 620. The trial court, within its exclusive

province, found M.D.’s testimony to be credible, and we agree with its reasoned determination

(see People v. Ortiz, 196 Ill. 2d 236, 267 (2001) (reversal of a defendant’s conviction is

warranted when based upon testimony that is improbable, unconvincing, or contrary to human

experience)):

       “I noted that [M.D.] had great difficulty testifying. I noted that when the questions

       were asked of her, she tried to answer them but could not. There was some

       hesitation, and at one time, we actually took a break so she could compose

       herself. I totally understand that this was an extremely difficult and emotional

       situation. But I weigh that consideration of the credibility of [M.D.].


                One of the things that she testified to was that she didn’t understand what

       went on, that she was afraid. She was afraid. She didn’t know what to do because

       she thought she’d be in trouble, which is extremely understandable natural

       thought process for a child. She didn’t want to tell on her cousin. She didn’t want




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No. 1-15-1892


        to tell about either of these incidents and she was embarrassed and she was

        afraid.”


                                                 ***

                In looking at all the evidence in this case, I see that the victim has testified

        to certain things and I find her extremely credible.”


¶ 49    We reject defendant’s additional assertions that M.D.’s outcry was unreliable because:

(1) it was made shortly after she gave birth and (2) M.D. remained silent when M.D.’s mother


stated, on previous occasions, that she had been raped. These arguments are cursory, 


unsupported, undeveloped, and unpersuasive. 


¶ 50                    B. The Credibility of Detective Stroud’s Testimony 


¶ 51    Defendant argues that Detective Stroud’s testimony was not credible and, as a result,


defendant’s written confession was unworthy of belief. Defendant’s argument focuses on


(1) Detective Stroud’s statement that he did not notice any cognitive disability on the part of


defendant when he interviewed him and (2) purported inconsistencies between Detective


Stroud’s testimony and the evidence presented by Schaeffer (defendant had an IQ of 73 and read


at the third-grade level).


¶ 52    The trial court heard Detective Stroud’s testimony twice (at the hearing on defendant’s


motion to suppress his confession and at trial) and took no issue with his statement that


defendant used the word “incidents” when describing his sexual contacts with M.D. Similarly,


the trial court determined Detective Stroud’s testimony, that he did not notice defendant’s


cognitive disabilities while interviewing him, to be credible. We will not second-guess the trial


court’s well-informed credibility determination here. See People v. Austin M., 2012 IL 111194,




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No. 1-15-1892


¶ 190; People v. Wheeler, 226 Ill. 2d 92, 114-15 (2007) (trier of fact is best equipped to judge the

credibility of witnesses and due consideration must be given to the fact that it was the trial court

saw and heard the witnesses). Defendant’s argument (his written confession was unworthy of

belief) was dependent upon a finding that Detective Stroud’s testimony was not credible.

Therefore, we need not address it.

¶ 53   We hold that the evidence was not so improbable, unsatisfactory, or inconclusive as to

warrant a reversal of defendant’s conviction for aggravated criminal sexual abuse (720 ILCS

5/12-16(c)(1)(i) (West 1998)). See People v. Beauchamp, 241 Ill. 2d 1, 8 (2011). Defendant’s

written confession and M.D.’s positive and credible testimony (when she was 7 years old and

defendant was older than 17 he placed her hands on his penis) was sufficient to convict

defendant of his sexual offense. We now turn to address defendant’s argument that the State

failed to prove him guilty of criminal sexual assault beyond a reasonable doubt. 720 ILCS 5/12­

13(a)(2) (West 1998).

¶ 54                              C. Defendant’s Knowledge

¶ 55   Defendant’s primary argument on appeal is that the State failed to prove beyond a

reasonable doubt that he knew M.D. was unable to understand the nature of the sexual act and

unable to give knowing consent to it. See id. (“[t]he accused commits criminal sexual assault if

he or she *** commits an act of sexual penetration and the accused knew that the victim was

unable to understand the nature of the act or was unable to give knowing consent”). The State

contends that it proved defendant’s knowledge under section 12-13(a)(2) with circumstantial

evidence. Our analysis of this issue is controlled by People v. Lloyd, 2013 IL 113510.

¶ 56   In Lloyd, our supreme court held that a conviction under section 12-13(a)(2) requires

proof beyond a reasonable doubt that the defendant knew of some fact, other than the victim’s


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No. 1-15-1892


young age, that prevented the victim from understanding the nature of or giving knowing consent

to the sexual act. Id. ¶ 40. The court’s research revealed not one reported case where a

defendant’s prosecution under section 12-13(a)(2) was based solely upon evidence of his or her

knowledge of the victim’s legal status as a minor. Id. ¶ 39. The court did, however, find a

number of cases where the State met its burden of proof by showing that (1) the victim was

severely mentally disabled, highly intoxicated, unconscious, or asleep and (2) the defendant

knew the victim’s state of mind prevented him or her from understanding the nature of or giving

knowing consent to the sexual act. Id. One of those cases cited by the court was People v.

Maloney, 201 Ill. App. 3d 599 (1990), which is instructive here.

¶ 57   In Maloney, the defendant was convicted of sexually assaulting a 15-year-old victim who

had the mental age of a 7-year-old. Id. at 611. On appeal, the defendant challenged the

sufficiency of the evidence arguing that the State failed to prove his knowledge under the

criminal sexual assault statute (Ill. Rev. Stat. 1987, ch. 38, ¶ 12-13(a)(2)) beyond a reasonable

doubt. Maloney, 201 Ill. App. 3d at 610. The court analyzed the evidence and found that a trier

of fact could have inferred defendant’s knowledge from his brief observation of and interaction

with the victim. Id. at 611.

¶ 58   The Maloney court reviewed the record and found that the defendant had “ample

opportunity” to assess, and became aware of, the victim’s limited mental capacity before the

defendant committed the sexual act that supported his conviction. Id. The defendant encountered

his victim reading a “ ‘Bugs Bunny’ comic book” and took a seat next to him in a laundromat.

Id. The defendant engaged the victim in “child-like” conversation, asked him about his family,

and if he had a “grandma.” Id. When the defendant asked the victim if he wanted to perform a

sex act in the bathroom, the victim declined at first, but then complied when he was asked by the


                                               16 

No. 1-15-1892


defendant to come “anyway.” Id. The Maloney court drew the following conclusion from the

evidence: “we believe that the whole scenario of the contact between defendant and [the victim]

clearly reveals that defendant sought to take advantage of [the victim’s] reduced mental abilities

after becoming aware of them during his conversation with him.” Id.

¶ 59   Turning to the evidence presented here, M.D. testified that, prior to the winter of 1999

when defendant committed his sexual act, she would see defendant “quite a lot,” he would stay

the night “a lot,” and she considered him “family.” Defendant knew M.D. her whole life.

¶ 60   M.D. further testified that, in the winter of 1999, when M.D. was seven years old, she

moved into a new house and wanted to show defendant her new bedroom and “Barbie” sheets.

While in her room, defendant removed M.D.’s pants and penetrated her vagina with his penis

repeatedly. On cross-examination, M.D. testified that she was crying while defendant penetrated

her. When defendant was done, he ejaculated on M.D.’s sheets. M.D. felt something wet and

asked defendant what it was. Defendant answered, “it was for [her].”

¶ 61   Our review of the evidence demonstrates that defendant’s conviction under section 12­

13(a)(2) was supported by more than his knowledge of M.D.’s young age. The court in Maloney

found that the defendant, a stranger to his victim, acquired the knowledge necessary to support

his conviction under the statute in effect at the time (Ill. Rev. Stat. 1987, ch. 38, ¶ 12-13(a)(2))

during a 20-minute conversation with a 15-year-old victim who had a mental age of 7. See

Maloney, 201 Ill. App. 3d at 610-11. Defendant here was M.D.’s cousin, spent the night at her

house, saw her every week, and was charged with the responsibility of watching over M.D. while

her mother was away or at work. Defendant watched M.D. grow up.

¶ 62   Defendant’s contact with M.D. culminated in the winter of 1999 when she was seven

years old. Defendant accompanied M.D. to her bedroom, saw her “Barbie” sheets, removed her


                                                17 

No. 1-15-1892


pants, and penetrated her while she cried. M.D. shared the mental age of the victim in Maloney,

and the record contains ample support for the finding that defendant sought to take advantage of

M.D.’s mental limitations, which due to her age were readily apparent, after becoming aware of

them through years-long observation and interaction with her.

¶ 63   The circumstantial evidence in this case, viewed in the light most favorable to the State,

was more than sufficient to support the reasonable inference drawn by the trial court that

defendant knew M.D. was unable to understand the nature of defendant’s penetrative act and

unable to give knowing consent to it. See People v. Trajano, 2018 IL App (2d) 160322, ¶ 24

(citing People v. Fleming, 2013 IL App (1st) 120386, ¶ 75 (knowledge may be inferred from

evidence of the defendant’s acts, statements, or conduct, as well as the surrounding

circumstances)); People v. Sutherland, 223 Ill. 2d 187, 242-43 (2006) (a conviction may be

sustained on circumstantial evidence, and the trier of fact need not be satisfied beyond a

reasonable doubt as to each link in the chain of circumstances when each link, taken together,

satisfies the trier of fact beyond a reasonable doubt of the defendant’s guilt). The State proved

much more here than it did in Lloyd.

¶ 64   Common understanding and basic reason guide our determination that an 18-year-old

defendant who, over an extended period of time has the opportunity to observe and interact with

his 7-year-old cousin before he commits the sexual act proscribed by the criminal sexual assault

statute (720 ILCS 5/12-13(a)(2) (West 1998)), knows that his victim is unable to understand the

nature of his sexual act and unable to give knowing consent to it.

¶ 65   Defendant’s remaining argument that his limited mental capacity prevented him from

acquiring the knowledge necessary to commit criminal sexual assault (id.) is unavailing.

Defendant failed to present any evidence demonstrating that his IQ of 73 or low scores in


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No. 1-15-1892


spelling, math, reading, or sentence comprehension (1) prevented him from acquiring the

knowledge necessary to support his conviction or (2) defeated the clearly sufficient

circumstantial evidence that supported the reasonable inference that he knew M.D. was unable to

understand the nature of his sexual act and unable to knowingly consent to it.

¶ 66      The issue of defendant’s limited mental capacity was extensively litigated in this case,

and we defer to the trial court’s well-informed determination that defendant’s mental capacity

did not raise reasonable doubt of his guilt.

¶ 67      Accordingly, the evidence was not so unreasonable, improbable, or unsatisfactory as to

warrant a reversal of defendant’s conviction for criminal sexual assault (id.). See People v.

Hardman, 2017 IL 121453, ¶ 37. Defendant confessed to having put his penis inside of M.D.’s

vagina, and M.D. testified positively and credibly to the same. As we already indicated, M.D’s

testimony demonstrated that when defendant committed his sexual act of penetration, he knew

that M.D. was unable to understand the nature of the act and unable to give knowing consent to

it. 720 ILCS 5/12-13(a)(2) (West 1998).

¶ 68                                  II. Plain Error Review

¶ 69      Defendant argues that the trial court erred when it allowed M.D.’s mother to testify that

M.D. told her that she had been raped by defendant. Having not preserved this issue in the trial

court, defendant seeks plain error review. See People v. Cuadrado, 214 Ill. 2d 79, 89 (2005) (an

issue not raised in a posttrial motion is forfeited on appeal). We review the issue for plain error.

See People v. Sebby, 2017 IL 119445, ¶ 48 (under plain error doctrine, a reviewing court may

exercise discretion and excuse a defendant’s procedural default in order to review unpreserved

error).

¶ 70      On first-prong plain error review, we will only reverse defendant’s conviction if a clear


                                                 19 

No. 1-15-1892


or obvious error occurred and the evidence is so closely balanced that the error alone threatened

to tip the scales of justice against him, regardless of the seriousness of the error. People v. Anaya,

2017 IL App (1st) 150074, ¶ 94. Our review begins with a determination of whether a clear and

obvious error occurred. Sebby, 2017 IL 119445, ¶ 49.

¶ 71                               A. Excited Utterance Exception

¶ 72   The State argues that M.D.’s mother was free to repeat M.D.’s statements at trial because

they were excited utterances. See People v. Perkins, 2018 IL App (1st) 133981, ¶ 68 (an excited

utterance or spontaneous declaration is a recognized exception to the hearsay rule); Ill. R. Evid.

803(2) (eff. Apr. 26, 2012). M.D.’s mother’s testimony forms the crux of the issue:

                “MS. FORELICH [(ASSISTANT STATE’S ATTORNEY)]: Now, when

       you got, when you had this argument right before you had to leave for work, what

       did [M.D.] blurt out?

                A. That I was not the only one raped, she was raped also.

                MR. ACOSTA [(DEFENSE ATTORNEY)]: Judge, I’m going to object to

       blurt out.

                THE COURT: Overruled. The foundation has been laid. I believe there’s

       sufficient basis for the State to use the outcry. Overruled. Go ahead.”


                                                    *** 


                Q. When you confronted [M.D.], what if anything did you learn?


                MR ACOSTA: Judge, I’m going to object, there’s been no 115-10 motion. 


                THE COURT: I’m sorry?


                MR. ACOSTA: There’s been no 115-10 motion. It’s hearsay.





                                                 20 

No. 1-15-1892


                  THE COURT: No, this was the outcry based on this charge and based on

          the evidence and the foundation laid. I’m not sure that we—There’s been no 115­

          10. Correct; but this is still an outcry. I believe it’s relevant and it’s permissible.

          Go ahead.

                  Q. What did you learn, [M.D.’s mother]?

                  A. That she had been molested.

                  Q. Did she tell you who the person was that molested her?

                  A. Yes, she did.

                  Q. And whom did she tell you had molested her?

                  A. Her cousin [defendant]?


                  MR. ACOSTA: Objection again.


                  THE COURT: Overruled, same basis.”



¶ 73      We hold that M.D.’s statements were not excited utterances. In order for a hearsay

statement to be admissible under the excited utterance exception, “(1) there must be an

occurrence sufficiently startling to produce a spontaneous and unreflecting statement; (2) there

must be an absence of time for the declarant to fabricate the statement; and (3) the statement

must relate to the circumstances of the occurrence.” People v. Williams, 193 Ill. 2d 306, 352

(2000).

¶ 74      Admissibility is determined using a totality of the circumstances analysis, which includes

several factors: the nature of the event, passage of time, the mental and physical condition of the

declarant, and the presence or absence of self-interest. Id. While the period of time that may pass

without affecting the admissibility of a statement varies greatly, a statement made when the

excitement of the occurrence no longer predominates is inadmissible hearsay. See People v.

                                                     21 

No. 1-15-1892


Sutton, 233 Ill. 2d 89, 107-08 (2009).

¶ 75   The State claims that the sexual abuse M.D. suffered as a young child triggered the

statements she made to her mother more than 10 years later. But, while the nature of the sexual

abuse was sufficiently traumatic, the excitement of those events no longer predominated when

M.D. made her statements in 2010. See People v. House, 141 Ill. 2d 323, 382 (1990) (citing 6

John H. Wigmore, Evidence in Trials at Common Law § 1747, at 195 (Chadbourn rev. ed. 1976)

(statements “made under the immediate and uncontrolled domination of the senses, and during

the brief period when considerations of self-interest could not have been brought fully to bear by

reasoned reflection” qualify for nonhearsay treatment)). Moreover, M.D.’s statements were not

made in the absence of time to fabricate. Williams, 193 Ill. 2d at 352 (statement must be made in

the absence of time to fabricate in order to qualify as exited utterance or spontaneous

declaration). Accordingly, M.D.’s statements were not excited utterances.

¶ 76                          B. Corroborative Complaint Exception

¶ 77   M.D.’s statements are inadmissible under the corroborative complaint exception, which

allows a witness to testify that a victim made a prompt complaint that she was raped. People v.

Sommerville, 193 Ill. App. 3d 161, 173 (1990). Under this exception, a witness may testify only

to the fact that the complaint was made. Id. The details of the complaint and the identity of the

perpetrator are inadmissible. People v. Gray, 209 Ill. App. 3d 407, 417 (1991) (details of the

complaint are deemed unnecessary because the purpose of the exception is to negate the

presumption arising from the victim’s silence). Here, M.D.’s mother testified that M.D. told her

she had been raped by defendant. Thus, the corroborative complaint exception does not apply.

¶ 78                          C. Prior Consistent Statement Exception

¶ 79   We hold that the trial court erred when it allowed M.D.’s mother to testify that M.D. told


                                               22 

No. 1-15-1892


her she had been raped by defendant. As a general rule, proof of a prior consistent statement

made by a witness is inadmissible hearsay and may not be used to bolster a witness’s testimony.

People v. Stull, 2014 IL App (4th) 120704, ¶ 99. However, prior consistent statements are

admissible to rebut a charge of recent fabrication or an inference that the witnessed is motivated

to testify falsely. Id.; Ill. R. Evid. 613(c) (eff. Oct. 15, 2015).

¶ 80    Here, the testimony of M.D.’s mother was not elicited to rebut a charge of recent

fabrication or an inference that M.D. was motivated to testify falsely. See People v. Dupree,

2014 IL App (1st) 111872, ¶ 42 (prior consistent statement may not be used on direct

examination to enhance the credibility of a witness’s testimony); Ill. R. Evid. 613(c) (eff. Oct.

15, 2015). In fact, the State elicited the testimony of M.D.’s mother on direct examination. As

such, M.D.’s prior consistent statements should not have been admitted into evidence.

¶ 81    Turning to defendant’s remaining argument, we find no error in the trial court’s

admission of the following: (1) M.D.’s testimony that she told her two high school friends what

happened in the context of a secret and (2) Detective Stroud’s testimony that he interviewed

M.D.’s two friends during the course of his investigation. Defendant argues that “both M.D. and

Stroud’s testimony implied the content of the statements” and it was, therefore, inadmissible

hearsay.

¶ 82    Under the investigatory procedure exception, a police officer may testify about

statements made by others when such testimony is offered, not to prove the truth of the matter

asserted, but instead to show the investigative steps taken by the officer leading to the

defendant’s arrest. People v. Risper, 2015 IL App (1st) 130993, ¶ 39 (citing People v. Pulliam,

176 Ill. 2d 261, 274 (1997)). Here, only the fact that Detective Stroud spoke with M.D.’s friends

was elicited at trial. Detective Stroud did not explain why he spoke with M.D.’s friends, and he


                                                    23 

No. 1-15-1892


offered no details about the conversation. See People v. Ochoa, 2017 IL App (1st) 140204, ¶ 52

(testimony about the steps taken during an investigation cannot include the substance of a

conversation with nontestifying witnesses). Neither M.D. nor Detective Stroud revealed the

content of their conversations with M.D.’s high school friends and, as such, we find no error in

the trial court’s admission of their testimony into evidence.

¶ 83                                        D. Prejudice

¶ 84   Under the closely balanced prong of the plain error doctrine, defendant bears the burden

of showing that the trial court’s error was prejudicial. Sebby, 2017 IL 119445, ¶ 51. Defendant

has not met his burden here.

¶ 85   Defendant twice confessed to the sexual conduct that supported his convictions, and the

trial court found Detective Stroud’s testimony regarding defendant’s confession to be “very

credible.” Defendant stated verbally that M.D. touched defendant’s penis in an up-down motion

and he placed his penis in M.D.’s vagina for five minutes. In writing, defendant stated that M.D.

grabbed and rubbed his penis for a couple minutes and that he put his penis inside of M.D.’s

vagina. The trial court found the content of defendant’s confession made M.D.’s testimony

“much more credible in this Court’s eyes” and that defendant’s statement “corroborates the

victim in many, if not all respects.”

¶ 86   M.D. testified, positively and credibly, that on two separate occasions, when she was 7

years old and defendant was older than 17, defendant placed her hands on his penis and

penetrated her vagina with his penis. Testifying to defendant’s act of penetration, M.D. stated

that defendant entered her bedroom, removed her pants, and penetrated her vagina repeatedly

while she was crying. Defendant knew M.D. her whole life. Defendant acted as a babysitter and

supervised her when M.D.’s mother was away or at work. The trial court noted M.D.’s difficulty


                                                 24 

No. 1-15-1892


when testifying to defendant’s sexual acts, and the record reflects that M.D., at one point, had to

leave the courtroom.

¶ 87   The issue of defendant’s limited mental capacity was litigated at length and considered

by the trial court in depth. The trial court found that defendant’s mental limitations did not affect

his ability to understand his Miranda rights, his fitness to stand trial, or his capacity to acquire or

possess the knowledge necessary to commit the charged offenses. Accordingly, defendant has

not shown that the trial court’s error was prejudicial. Because defendant has failed to show

prejudicial error, we need not address defendant’s argument that his counsel was ineffective for

failing to preserve the error for review. People v. White, 2011 IL 109689, ¶ 134.

¶ 88                             III. Mandatory Supervised Release

¶ 89   Defendant argues that the trial court erred when it ordered him to serve a mandatory

supervised release (MSR) term of three years to life without first advising defendant of his right

to be sentenced under the shorter MSR term of two years in effect when he committed his sexual

offenses. We review this pure question of law de novo. People ex rel. Berlin v. Bakalis, 2018 IL

122435, ¶ 17.

¶ 90   Section 5-8-1(d) of the Unified Code of Corrections (730 ILCS 5/5-8-1(d) (West 2014))

assigns different MSR terms to criminal offenses categorized by name and class. MSR terms are

mandatory and must be written as part of the sentencing order. Id. (“mandatory supervised

release term shall be written as part of the sentencing order”). If the MSR term assigned to a

criminal offense increases after a defendant commits a criminal offense, then the defendant must

be given the opportunity to choose whether to be sentenced under the law that existed at the time

of offense or at the time of sentencing. People v. Horrell, 235 Ill. 2d 235, 242 (2009).

¶ 91   A defendant who is not given this opportunity is denied due process of law. People v.


                                                  25 

No. 1-15-1892


Vlahon, 2012 IL App (4th) 110229, ¶ 17 (citing People v. Hollins, 51 Ill. 2d 68, 71 (1972)).

Also, the retroactive application of a law that inflicts greater punishment than did the law that

was in effect when the criminal offense was committed is forbidden by the ex post facto clauses

of the United States Constitution and Illinois Constitution. People v. Cornelius, 213 Ill. 2d 178,

207 (2004) (citing Lynce v. Mathis, 519 U.S. 433, 439-41(1997)).

¶ 92     In 1999, when defendant engaged in the sexual conduct that supported his conviction for

aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(1)(i) (West 1998)), the applicable MSR

term was two years. See 730 ILCS 5/5-8-1(d)(2) (West 1998). In 2015, when defendant was

sentenced, the MSR term was still two years. See 730 ILCS 5/5-8-1(d)(2) (West 2014). The trial

court, therefore, did not err when it ordered defendant to serve a two-year MSR term because

defendant’s election would have been meaningless. Accordingly, a correction of defendant’s

mittimus is unnecessary.

¶ 93     A correction of defendant’s mittimus is necessary, however, with respect to his

conviction for criminal sexual assault (720 ILCS 5/12-13(a)(2) (West 1998)). When defendant

committed the act that supported his conviction for criminal sexual assault (id.), the applicable

MSR term was two years. See 730 ILCS 5/5-8-1(d)(2) (West 1998). The MSR term in effect

when defendant was sentenced in 2015 was three years to life. See 730 ILCS 5/5-8-1(d)(4) (West

2014).

¶ 94     The State concedes that the trial court ordered defendant to serve a MSR term of three

years to life without first advising defendant of his right to be sentenced under the shorter MSR

term of two years in effect when he committed the charged offenses. Accordingly, the trial

court’s order ran afoul of the ex post facto prohibition against increasing a defendant’s

punishment for a previously committed offense (Cornelius, 213 Ill. 2d at 207), and we correct


                                               26 

No. 1-15-1892


the mittimus to reflect a mandatory supervised release term of two years for defendant’s

conviction of criminal sexual assault (720 ILCS 5/12-13(a)(2) (West 1998); 730 ILCS 5/5-8­

1(d)(2) (West 1998)). Given our findings here, any consideration of the effectiveness of

defendant’s counsel for failing to raise and preserve the issues related to defendant’s MSR terms

is unnecessary.

¶ 95                                       IV. SORA

¶ 96   Defendant challenges his obligation to register as a sex offender and asks this court to

invalidate SORA on substantive and procedural due process grounds. See Ill. Const. 1970, art. I.,

§ 2; U.S. Const., amend. XIV. He also challenges his obligation to comply with the following

statutes (Separate Statutes) arguing that they are facially unconstitutional: (1) section 11-9.3 of

the Criminal Code of 2012 (720 ILCS 5/11-9.3 (West 2014)), which prohibits a child sex

offender’s physical presence on school property, proximity to places where children are found,

and provision of services to and engagement in activities with children; (2) section 11-9.4-1 of

the Criminal Code of 2012 (id. § 11-9.4-1), which prohibits child sex offenders and sexual

predators from loitering on a public way, within 500 feet of a public park, and from being

physically present in a public park; (3) section 5-5-3(o) of the Unified Code of Corrections (730

ILCS 5/5-5-3(o) West 2014)), which requires sex offenders to renew their driver’s licenses or

permits annually; and (4) section 21-101 of the Code of Civil Procedure (735 ILCS 5/21-101

(West 2014)), which prohibits sex offenders from changing their names.

¶ 97   We lack jurisdiction to consider defendant’s arguments on direct appeal from his criminal

convictions. Defendant’s obligations to register as a sex offender and comply with the Separate

Statutes were collateral consequences of his convictions. People v. Bingham, 2018 IL 122008,

¶¶ 10, 19; People v. Avila-Briones, 2015 IL App (1st) 132221, ¶¶ 91-92 (Illinois’s sex offender


                                                27 

No. 1-15-1892


system turns on a defendant’s conviction alone). As collateral consequences, they, by definition,

were neither imposed by the trial court nor embodied in its judgment. See People v. Delvillar,

235 Ill. 2d 507, 520 (2009) (collateral consequences are effects upon the defendant that the trial

court has no authority to impose and that result from an action that may or may not be taken by

an agency that the trial court does not control).

¶ 98    The scope of our review on appeal is limited to the trial court’s judgment (and the

proceedings and order which relate to that judgment). Ill. S. Ct. R. 615(b) (eff. Jan. 1, 1967);

People v. Lewis 234 Ill. 2d 32, 37 (2009) (“[a] notice of appeal confers jurisdiction on an

appellate court to consider only the judgments or parts of judgments specified in the notice”).

Therefore, defendant’s argument on direct appeal here, which challenges collateral consequences

of his convictions that were neither imposed by the trial court nor embodied in its judgment, are

beyond the scope of our review, and we have no power to address them. See Bingham, 2018 IL

122008, ¶ 18 (“a reviewing court has no power on direct appeal of a criminal conviction to order

that defendant be relieved of the obligation to register as a sex offender when there is neither an

obligation to register imposed by the trial court nor an order or conviction that the defendant is

appealing that is directly related to the obligation or the failure to register”).

¶ 99    It stands that, on direct review, the only way defendant may be relieved of his obligations

to register as a sex offender and comply with the Separate Statutes is to secure a reversal of the

convictions that triggered the obligations in the first place. We, however, affirm defendant’s

convictions here. Accordingly, defendant’s arguments are dismissed.

¶ 100 We note, however, that defendant is not precluded from challenging SORA or the

Separate Statutes. He may file a civil suit seeking a declaration of unconstitutionality or relief

from the sex offender classification as well as the burdens of registration or directly appeal from


                                                    28 

No. 1-15-1892


a finding of guilt for violating SORA or the Separate Statutes. Id. ¶ 21.

¶ 101 Even if we had jurisdiction to consider defendant’s arguments, SORA and the Separate

Statutes would survive scrutiny. The commands of clear Illinois precedent preclude any decision

to the contrary.

¶ 102 SORA and the Separate Statutes do not affect fundamental rights. Avila-Briones, 2015 IL

App (1st) 132221, ¶ 74 (citing In re J.W., 204 Ill. 2d 50, 67 (2003) (SORA does not affect

fundamental rights)); id. ¶¶ 74-76 (finding that laws prohibiting a sex offender’s right to change

his or her name, right to drive or possess a driver’s license, or to be physically present or loiter

near school property or public parks do not implicate fundamental rights); Cornelius, 213 Ill. 2d

at 204 (“the ‘right’ to be free from the shame, stigma and embarrassment resulting from a

conviction for sexually abusing a child is not the kind of ‘fundamental right’ contemplated by

our constitution” (internal quotation marks omitted)). Therefore, SORA and the Separate Statutes

are subject to the rational basis test. See Cornelius, 213 Ill. 2d at 203 (if a statute does not affect

a fundamental constitutional right, the results of the rational basis test determine whether the

statute comports with due process).

¶ 103 SORA and the Separate Statutes are rationally related to the legitimate state interest of

protecting the public from sex offenders. People v. Rodriguez, 2018 IL App (1st) 151938, ¶ 25;

Avila-Briones, 2015 IL App (1st) 132221, ¶ 84; People v. Pepitone, 2018 IL 122034, ¶ 31 (“there

is a rational relation between protecting the public, particularly children, from sex offenders and

prohibiting sex offenders who have been convicted of crimes against minors from being present

in public parks across the state”). Accordingly, defendant’s substantive due process challenge

fails.

¶ 104 Because a defendant’s convictions trigger the obligations to register under SORA and


                                                  29 

No. 1-15-1892


comply with the Separate Statutes, a defendant’s procedurally safeguarded opportunity to contest

his registration is his or her criminal trial. Any evaluation of a defendant’s likelihood to reoffend

or, as defendant argues, “future danger as a sex offender” is simply not relevant to the question

whether he committed the qualifying offenses beyond a reasonable doubt. Avila-Briones, 2015

IL App (1st) 132221, ¶ 92 (a defendant has no right to a procedure that affords him the

opportunity to prove a fact that is not relevant to his sex offender registration). Accordingly,

defendant’s procedural due process argument fails.

¶ 105                                     CONCLUSION

¶ 106 We affirm the judgment of the circuit court of Cook County and order the mittimus be

corrected to reflect an MSR term of two years for defendant’s conviction of criminal sexual

assault (720 ILCS 5/12-13(a)(2) (West 1998)). See People v. Mitchell, 234 Ill. App. 3d 912, 921

(1992) (pursuant to Illinois Supreme Court Rule 615 (eff. Jan. 1, 1967), this court may correct

the mittimus without remanding to the trial court).

¶ 107 Affirmed.




                                                 30 

