People v. Vaughn

ILLINOIS OFFICIAL REPORTS
Appellate Court

People v. Vaughn, 2011 IL App (1st) 092834

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

District & No. First District, Sixth Division
Docket No. 1-09-2834

Rule 23 Order filed September 30, 2011
Rule 23 Order
withdrawn November 16, 2011
Opinion filed November 23, 2011

Held Defendant’s convictions for multiple counts of criminal sexual assault,
(Note: This syllabus sexual abuse and sexual relations within families arising from incidents
constitutes no part of involving his daughter were upheld over his contentions that the State
the opinion of the court failed to prove one conviction in which defendant’s admission was not
but has been prepared corroborated independently, that the State failed to prove defendant
by the Reporter of committed the acts of criminal sexual assault by the use or threat of force,
Decisions for the and that defendant’s counsel was ineffective in failing to move to
convenience of the suppress defendant’s inculpatory statements, but the mittimus was
reader.)
corrected to reflect 707 days of credit for presentence detention.

Decision Under Appeal from the Circuit Court of Cook County, No. 07-CR-21925; the
Review Hon. Clayton J. Crane, Judge, presiding.

Judgment Affirmed; mittimus corrected.
Counsel on Michael J. Pelletier, Alan D. Goldberg, and Rachel Moran, all of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.

Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Yvette
Loizon, Tasha-Marie Kelly, and Charles J. Prochaska, Assistant State’s
Attorneys, of counsel), for the People.

Panel JUSTICE LAMPKIN delivered the judgment of the court, with opinion.
Justices Cahill and Garcia concurred in the judgment and opinion.

OPINION

¶1 Following a bench trial, defendant, Eric Vaughn, was convicted of 56 counts of criminal
sexual assault, sexual abuse, and sexual relations within families as a result of two incidents
involving defendant’s 14-year-old daughter, T.V. The counts were later merged into six
convictions for which defendant was sentenced to a total of 30 years’ imprisonment. On
appeal, defendant contends: (1) the State failed to prove one of the convictions beyond a
reasonable doubt where defendant’s admission was not corroborated independently; (2) the
State failed to prove beyond a reasonable doubt that defendant committed the acts of criminal
sexual assault by the use of force or the threat of force; (3) defense counsel was ineffective
for failing to file a motion to suppress defendant’s inculpating statements; and (4) defendant
is entitled to 707 days of presentence detention credit. Based on the following, we affirm.

¶2 FACTS
¶3 At trial, T.V. testified that she was 14 years old at the relevant time. On September 3,
2007, T.V. was visiting defendant.1 They, along with T.V.’s brother and defendant’s
girlfriend, had been shopping for school clothes and had returned to defendant’s home for
a sleepover. Defendant lived with his girlfriend. At some point, T.V. went to sleep. She was
wearing a t-shirt and boxer shorts. T.V.’s brother was also asleep in the same bed. T.V. later
awoke and found defendant was between her legs with his mouth on her vagina. T.V. noticed
that her shirt had been pulled up over her head and her shorts had been removed. T.V.
testified that she was scared. Defendant then inserted his finger into her vagina and inserted
his penis into her vagina as well. T.V. added that defendant’s penis made contact with her
anus.
¶4 The following morning, defendant asked T.V. if she liked what had occurred the prior

1
T.V. lived with her mother, but saw defendant on a regular basis.

-2-
 night. T.V. refused to answer. Defendant then told T.V. that she was his special girl and that
if she told anybody about the incident he would kill her. Defendant and T.V. were alone
during the conversation. T.V. did not tell anyone about the incident.
¶5 On September 14, 2007, T.V. again spent the night at defendant’s home. The purpose of
the visit was for defendant to take T.V. to get contact lenses; however, the store was closed,
so they planned to have a sleepover. That night, T.V. fell asleep in the same bed as her
brother, wearing a t-shirt and boxer shorts. T.V. again awoke and found defendant between
her legs with his mouth on her vagina. T.V. continued to lie on the bed while defendant had
his mouth on her vagina for 30 minutes. T.V. testified that she was scared at the time.
According to T.V., defendant penetrated her vagina and anus with his penis. T.V. did not
scream; however, she squirmed and attempted to turn from defendant penetrating her, but
defendant continued to “com[e] back” and “do it again.” T.V. could not recall whether
defendant ejaculated.
¶6 The following morning, T.V. returned to her mother’s house and told her best friend
about the incidents, adding that she was afraid to inform her mother. At approximately 11
p.m. that night, T.V. told her mother, Shaunta Douglas, about the incidents. T.V. was crying
when she reported what had occurred. Douglas called the police. The officer that responded
to the call advised Douglas to take T.V. to the hospital. Douglas took T.V. to Mount Sinai
Hospital. While at the hospital, T.V. spoke with a nurse and a doctor, separately telling them
about the incidents. T.V. was examined by the doctor.
¶7 Sharlene Rivera testified that she was a registered nurse who interviewed T.V. and
assisted in the sexual assault examination on September 16, 2007. According to Rivera, T.V.
reported that “she was raped by her father on two occasions, on September 3 and September
15,” and that she was penetrated vaginally and anally and that defendant licked her vagina.
Rivera assisted in performing the rape kit examination.2 On cross-examination, Rivera said
T.V. only stated that defendant put his penis in her vagina and licked her vagina.
¶8 Doctor Michael Slater examined T.V. on September 16, 2007. T.V. told Dr. Slater that
defendant performed oral sex on her and inserted his penis into her vagina. Dr. Slater’s
physical examination did not reveal any physical injury or vaginal trauma. Dr. Slater testified
that this was normal because generally there is no injury inflicted on a sexual assault victim
that has engaged in intercourse prior to the attack.
¶9 Detective Ian Barclay was assigned to investigate the incidents. At approximately 7:45
a.m. on September 27, 2007, Barclay and his partner, Detective Morris, arrested defendant
at his workplace and transported him to the 11th district police station. At approximately
8:30 a.m., defendant was advised of his Miranda rights. Defendant stated that he understood
his rights. At 4 p.m. or 5 p.m., Barclay interviewed defendant. Defendant was readvised of
his Miranda rights. Defendant waived his rights and provided an oral statement. Defendant
said that he touched T.V.’s breast with his hand. Defendant continued that, on September 3,
2007, he penetrated T.V.’s vagina with his finger and penis and kissed her vagina with his

2
The parties stipulated that the vaginal swabs collected with the rape kit did not contain
semen or saliva.

-3-
 mouth. Defendant added that the incident occurred after his girlfriend received a phone call
and left their home. Defendant further said that, on September 14, 2007, he forced T.V.’s
legs apart by virtue of his weight and size and kissed her vagina. On the second date at issue,
defendant also penetrated T.V.’s vagina and held his arm around her. The incident lasted
approximately 30 minutes. After the interview concluded, Detective Barclay called the
State’s Attorney’s office.
¶ 10 Assistant State’s Attorney (ASA) Martha Kross arrived at the police station at
approximately 8 p.m. on September 27, 2007. ASA Kross testified that defendant waived his
Miranda rights and agreed to provide an oral statement. Defendant admitted that he fondled
T.V.’s breast and vagina and attempted to put his penis into her vagina during the first
incident. Defendant further admitted that he fondled T.V.’s breast and vagina, kissed her
vagina, placed his finger into her vagina, and penetrated her vagina and anus with his penis
during the second incident. Defendant then agreed to have his statement memorialized in
writing. Defendant signed each page of the statement. Defendant instructed ASA Kross to
make a number of corrections to the statement, which he then initialed.
¶ 11 Defendant’s statement was read into the record. The statement related to the September
3 incident provided:
“Eric states that [his girlfriend] got a call and left the house with her daughter. Eric
states that he then went into the bedroom where [T.V. and her nine-year-old brother
D.V.] were. Eric states that [D.V.] was [asleep]. Eric states that [T.V.] [was] also asleep.
Eric states that he laid on the bed with [T.V.] Eric states that he fondled [T.V.] on her
breast under her t-shirt. Eric states that he then fondled [T.V.]’s vagina over her
underwear. [Eric] then states that he pulled [T.V.’s] underwear drown [sic] and kissed
on her vagina. Eric states that he got on top of [T.V.] and tried to place his penis into her
vagina. He stated [he] did not get his penis all the way inside [T.V.]’s vagina because he
started to feel bad about what was happening. He states he got up and left the room. Eric
states that when he was still in the room, [T.V.] looked at him with a really mean look
on her face, then turned her head. Eric states that [D.V.] did not wake up.”
In relation to the September 14 incident, defendant’s statement provided:
“Eric states that he, [T.V.] and [D.V.] were watching a movie together in the bed in
the room where [T.V.] and [D.V.] were to sleep. Eric states that [D.V.] fell asleep. Eric
states that [he] was laying on the side of [T.V.] with [T.V.]’s back to him. Eric states that
he began to fondle [T.V.’s] breasts over and under her shirt. Eric states that he then
pulled [T.V.]’s shorts down. Eric states that he pulled his penis out and placed it in the
area of her butt. Eric states that [T.V.] started to squirm. Eric states that he held his arm
over her body. Eric states that because [T.V.] was squirming, he turned her over. Eric
states that he pulled up [T.V.’s] shirt and began to kiss her breast. Eric states that he put
his finger into [T.V.’s] vagina. Eric states that he then kissed [T.V.]’s vagina. Eric states
he then got on top of her and placed the head of his penis into [T.V.]’s vagina. Eric states
that he felt bad again and stopped. Eric states that [T.V.] was mumbling and gave him
a mean look again. Eric states that he left and went to his room. Eric states that [D.V.]
did not wake up. Eric states that he took both [T.V.] and [D.V.] home on Saturday,

-4-
 9/15/07. Eric states that on both occasions, he told [T.V.] not to tell anyone and to keep
it a secret. Eric states that he is sorry that he did what he did to [T.V.]. Eric states that he
knows that he was wrong and that he does not want to do any of these things again. Eric
states that he feels really bad and knows he needs help. Eric states that he has been
treated well by the police and by ASA Kross. ***. Eric states that no threats or promises
had been made to him to get him to give this statement, and he was giving this statement
freely and voluntarily. ***. Eric states that he was allowed to make any changes or
corrections to his statement and that he put his initials by any change or correction. Eric
states everything contained in the statement is true and correct.”
¶ 12 After the State rested its case-in-chief, the trial court granted defendant’s motion for a
directed finding on seven counts,3 all pertaining to contact between defendant’s penis and
T.V.’s anus.
¶ 13 Defendant testified that two detectives took him to the police station following his arrest
on September 27, 2007. At approximately 9 a.m., one of the detectives informed him of the
basis of the arrest. The detective then asked him if he wanted to talk about the situation or
make a statement. Defendant testified that he told the detectives he did not want to talk to
them at that time. Defendant was then placed in a holding cell for a few hours.
¶ 14 According to defendant, at about 12:30 p.m. or 1 p.m., the detectives returned and asked
defendant if he wanted to respond to statements made against him. Defendant was read a
statement of T.V.’s accusations. Defendant testified that one of the detectives made him feel
“really bad” for what had occurred. Defendant told the detective that “all of this” was
because of alcohol and drug addictions. Defendant testified that one of the detectives told
him that they would assist him in receiving treatment in jail. Defendant was then returned
to the holding cell and told to think about making a statement. According to defendant, “I
didn’t know about the criminal arrest procedures and stuff at this time because this is my first
time going through the, you know, questioning part being arrested.”
¶ 15 At about 4 p.m., the detectives returned yet again, and defendant made a detailed
statement of the events in question. Defendant testified that when he asked for help obtaining
treatment the detectives told him he needed to make a statement in order to receive that help.
Defendant “explained to the two detectives that everything in the charges [was] exactly true,
but [he] played a majority role in it, and the majority of the charges against [him], [he] played
a role in it, but everything wasn’t all the way true.”
¶ 16 Defendant further testified that he agreed to speak with the ASA and provide a
handwritten statement. Defendant testified that some of the statement he provided to the
ASA was not true. Defendant did not elaborate as to what portions of the statement were not
accurate. Defendant said he did not inform the ASA that portions of the statement were not
true. Defendant testified that the detectives were present when he made his statement to the
ASA and they repeatedly stopped defendant during the statement when he attacked the
veracity of the statement, stating, “no, well, this is what the statement is saying that you did.”
According to defendant, he agreed with the statement and signed it because he wanted to

3
Counts IV, V, VI, XIV, XVIII, L, and LXXVIII.

-5-
 receive treatment.
¶ 17 On cross-examination, defendant admitted he told the detectives he committed some of
the crimes because it was the truth. Moreover, defendant testified that “most” of the
statement taken by the ASA was true and that he made corrections to the statement.
Defendant admitted that on September 3, 2007, he fondled T.V.’s breast, kissed her vagina,
and inserted his finger into her vagina. Defendant initially stated that his penis did not have
contact with T.V.’s vagina on that date, but later during cross-examination admitted having
contact between his penis and T.V.’s vagina on September 3, 2007. Defendant, however,
denied threatening T.V.’s life if she told her mother about the incident. Defendant further
admitted that on September 14, 2007, he fondled T.V.’s breasts, removed T.V.’s boxer
shorts, placed his head between T.V.’s legs, kissed her vagina, placed his finger in her
vagina, got on top of T.V. while he had an erection, held his arm around T.V., and made
contact with her vagina with his penis in an attempt to have sexual intercourse. Defendant,
however, denied telling the detectives that he forced T.V.’s legs open with his weight or that
he had sexual contact with her for 30 minutes. Defendant clarified that his girlfriend received
the phone call and left the house on September 14, 2007, not September 3, 2007, as it was
reported in his handwritten statement. Defendant testified that the detectives promised to
help him receive assistance if he made the statement.
¶ 18 In rebuttal, defendant testified that his penis did not make contact with T.V.’s anus on
either date.
¶ 19 The trial court found defendant not guilty of all of the counts4 related to T.V.’s breast
because she had no recollection of defendant fondling her breast. The trial court found
defendant guilty on the remaining 56 counts, stating, “there is absolutely no question in my
mind that the events alleged in those counts occurred on both the 3rd and 14th of
September.”
¶ 20 On September 3, 2009, the trial court merged defendant’s convictions into six counts of
criminal sexual assault where three counts were for the conduct on September 3, 2007, and
three counts were for the conduct on September 14, 2007. The counts provided that
defendant was guilty of intentionally or knowingly committing an act of sexual penetration
upon T.V. such that defendant’s penis, mouth, and finger were used to contact T.V.’s vagina
by the use of force or threat of force. Defendant was sentenced to three consecutive six-year
prison terms for the incidents on September 3, 2007, and three consecutive four-year prison
terms for the incidents on September 14, 2007.

¶ 21 DECISION
¶ 22 I. Failure to Prove Corpus Delicti
¶ 23 Defendant contends the State failed to prove he inserted his finger into T.V.’s vagina on
September 14, 2007, because there was no evidence of the offense other than defendant’s

4
Counts XLI, XLIII, XLV, XLVII, LIII, LV, LXI, LXIII, LXV, LXVI, LXXI, LXXII, and
LXXIII.

-6-
 own admission. Consequently, defendant argues that the State failed to prove the corpus
delicti of the offense and, therefore, his conviction must be reversed.
¶ 24 A challenge to the sufficiency of the evidence requires this court to determine whether,
when looking at the evidence in a light most favorable to the State, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt. People v.
Jackson, 358 Ill. App. 3d 927, 941, 832 N.E.2d 418 (2005). We will not reverse a conviction
unless the evidence is so unreasonable, improbable, or unsatisfactory that it raises reasonable
doubt of the defendant’s guilt. Id. As the trier of fact, the trial court is in the superior position
to assess the credibility of witnesses, resolve inconsistencies, determine the weight to assign
the testimony, and draw reasonable inferences therefrom. Id..
¶ 25 It is well established that the State must prove the corpus delicti of an offense beyond a
reasonable doubt. People v. Lambert, 104 Ill. 2d 375, 378, 472 N.E.2d 427 (1984). In other
words, it is the State’s burden to prove beyond a reasonable doubt that a crime occurred. Id.
The supreme court has said:
“Proof of corpus delicti requires both proof of injury or loss, as well as proof of
criminal agency. *** [Citation.] However, the corpus delicti cannot be proved by the
defendant’s confession alone. [Citations.] There must be either some independent
evidence or corroborating evidence outside of the confession which tends to establish
that a crime occurred. [Citation.] If there is such evidence, and that evidence tends to
prove that the offense occurred, then that evidence, if it corroborates the facts contained
in the defendant’s confession, may be considered together with the confession to
establish the corpus delicti. [Citation.]” (Internal quotation marks omitted.) Id. at 378-79.
More recently, the supreme court has added:
“Although the corroboration requirement demands that there be some evidence,
independent of the confession, tending to show the crime did occur, that evidence need
not, by itself, prove the existence of the crime beyond a reasonable doubt. If the
defendant’s confession is corroborated, the corroborating evidence may be considered
with the confession to determine whether the crime, and the fact the defendant committed
it, have been proven beyond a reasonable doubt.” People v. Sargent, 239 Ill. 2d 166, 183,
940 N.E.2d 1045 (2010).
¶ 26 Our review of the record demonstrates that during his cross-examination defendant,
himself, provided independent, corroborating evidence that he penetrated T.V.’s vagina with
his finger on September 14, 2007. We recognize neither Detective Barclay, Nurse Rivera,
nor T.V. testified that defendant penetrated T.V.’s vagina with his finger on September 14,
2007; however, we conclude that defendant’s testimony sufficiently corroborated his out-of-
court admissions to ASA Kross.
¶ 27 The corroboration rule was borne out of a general mistrust of extrajudicial statements.
Id. “Two reasons are commonly advanced for this mistrust: (1) confessions are unreliable if
coerced, and (2) for various psychological reasons, persons ‘confess’ to crimes either that
have never occurred or for which they are not legally responsible.” Id. The mistrust inherent
in extrajudicial statements is not at issue for in-court testimony. During his cross-
examination, the State asked defendant a series of questions related to what he admitted in

-7-
 his police statements. At that time, the State did not ask whether defendant admitted to the
police that he penetrated T.V.’s vagina with his finger on September 14, 2007. However,
later in the cross-examination, the State asked defendant a series of questions directed at
summarizing the offenses. During that portion of the cross-examination, the following
transpired:
ASA SHEA: Mr. Vaughn, regarding the other time, later in September, around the
14th of September, again, [T.V.] had stayed over at your place, correct?
DEFENDANT: Yes.
ASA SHEA: And you guys were actually going to get contact lenses, correct?
DEFENDANT: Yes.
ASA SHEA: And you fondled her breasts that night, correct?
DEFENDANT: Yes.
ASA SHEA: And you put your finger inside her vagina?
DEFENDANT: Yes.”
¶ 28 The record clearly demonstrates the State provided the date at issue and context for that
date. Defendant was to answer the questions in relation to the date on which T.V. slept over
to get contact lenses, namely, September 14, 2007, and not when she slept over after having
gone shopping for school clothes. Notwithstanding, had defendant’s testimony been incorrect
as to the date at issue, defense counsel was available to clear up the confusion on redirect.
No redirect was taken. Accordingly, not only did defendant’s testimony corroborate the oral
and handwritten statements provided to ASA Kross in which he admitted penetrating T.V.’s
vagina with his finger on September 14, 2007, but defendant’s in-court testimony provided
an independent basis upon which to sustain the conviction. The testimony was available for
challenge or clarification and was observed by the trial court. Jackson, 358 Ill. App. 3d at
941 (it was the trial court’s duty, as the trier of fact, to assess the credibility of the witnesses,
resolve any inconsistencies, assign weight to the testimony, and draw reasonable inferences
therefrom). The trial court concluded the evidence supported a finding that defendant
inserted his finger into T.V.’s vagina on September 14, 2007, and we do not find the
evidence was so unreasonable, improbable, or inconsistent to raise a reasonable doubt of
defendant’s guilt. See id.
¶ 29 None of the cases cited by defendant involved situations where the defendant’s
extrajudicial statement or admission was corroborated by the defendant’s testimony at trial.
See Lambert, 104 Ill. 2d at 379; People v. Richmond, 341 Ill. App. 3d 39, 45-46, 791 N.E.2d
1132 (2003); People v. Wright, 286 Ill. App. 3d 456, 461, 677 N.E.2d 494 (1996); People
v. Kokoraleis, 149 Ill. App. 3d 1000, 1003-07, 501 N.E.2d 207 (1986). Our research has not
revealed any cases with a similar fact pattern. We conclude defendant’s in-court testimony
and extrajudicial confession sufficiently established the corpus delicti of the offense of
digital penetration on September 14, 2007.

¶ 30 II. Failure to Prove Use of Force or Threat of Force
¶ 31 Defendant contends the State failed to prove he used force or threatened the use of force

-8-
 while committing the offenses for which he was convicted. With the exception of the
conviction discussed prior, defendant does not challenge his guilt as to the remaining acts
of sexual penetration. Defendant, however, contends the convictions should be corrected to
reflect a different theory of liability, namely, “an act of sexual penetration with a victim who
was under 18 years of age when the act was committed and the accused was a family
member.” 720 ILCS 5/12-13(a)(3) (West 2006). The State responds that the evidence
sufficiently demonstrated defendant used force or threatened the use of force while
committing the acts of sexual penetration.
¶ 32 As previously stated, when a defendant challenges the sufficiency of the evidence, we
consider whether, after viewing the evidence in a light most favorable to the State, any
rational trier of fact could have found the essential elements of the crime were proven beyond
a reasonable doubt. Jackson, 358 Ill. App. 3d at 941. It is not the function of this court to
retry the defendant or substitute our judgment for that of the trial court. People v. Ross, 229
Ill. 2d 255, 272, 891 N.E.2d 865 (2008). The trial court assesses the credibility of the
witnesses, resolves any inconsistencies across testimony, assigns weight to the testimony,
and draws any reasonable inferences therefrom. Jackson, 358 Ill. App. 3d at 941. We will not
set aside a conviction unless the evidence is so unreasonable, improbable, or unsatisfactory
as to raise a reasonable doubt of the defendant’s guilt. Id.
¶ 33 For purposes of criminal sexual assault, use of force or threat of force means:
“(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 exercise 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 2006).
Our court has elaborated that “[t]here is no definite standard establishing the amount of force
which the State is required to prove to show rape. If circumstances show resistance to be
futile or life endangering or if the victim is overcome by superior strength or fear, useless or
foolhardy acts of resistance are not required.” People v. Bolton, 207 Ill. App. 3d 681, 686,
566 N.E.2d 348 (1990).
¶ 34 We find the evidence sufficiently demonstrated the use of force or threat of force. T.V.
testified that, on both dates at issue, she awoke at night to her father between her legs with
his mouth on her vagina. T.V. testified that she was afraid on both occasions. T.V. further
testified that, after the first incident, defendant threatened to kill her if she told anyone. T.V.
complied and did not inform her friend until after the second incident. At that time, T.V. told
her friend that she was afraid to report the incidents to her mother. When she finally told her
mother, T.V. was crying. While testifying regarding the incident on September 14, 2007,
T.V. stated that she squirmed to avoid defendant’s penetrations, but he continued in his
attempts. In his handwritten statement, defendant said that, following both incidents, he
instructed T.V. not to tell anyone. Defendant admitted in both his handwritten statement and
while testifying at trial that, during the second incident, he held his arm around T.V. In total,
the evidence clearly shows the 14-year-old girl was overcome by fear and the sheer presence
of her father committing the offenses that resistance need not have been established in order

-9-
 to demonstrate the use of force or threat of force. Id.
¶ 35 The instant case is distinguishable from People v. Vasquez, 233 Ill. App. 3d 517, 599
N.E.2d 523 (1992), a case cited by defendant for support. In Vasquez, this court reversed the
defendant’s convictions for two instances of criminal sexual assault where the evidence of
force was insufficient to sustain those convictions. The relevant facts in Vasquez
demonstrated that the victim was a 13-year-old foster child who was “forced” to engage in
two oral sex acts with the defendant. On both occasions, the defendant pushed the back of
the victim’s head onto the defendant’s erect penis. During the first incident, the victim
willingly entered the defendant’s car and remained inside after being “forced” to orally
pleasure the defendant even when the defendant exited the car to urinate. The victim also
allowed the defendant to drive him home. The victim did not attempt to obtain assistance nor
report the incident. The victim testified that the defendant did not threaten him and he did
not believe the defendant meant him any harm. Several months later, the victim again
encountered the defendant and, in an effort to avoid further incidents with the defendant, the
victim suggested a location under a bridge or viaduct where they could talk. After again
being “forced” to engage in oral sex, the victim remained at the suggested location while the
defendant urinated. In addition, the victim did not alert passersby to anything or seek
assistance. The victim even followed the defendant to another secluded area behind a bush.
Id. at 519-29. The Vasquez court concluded the victim’s testimony that he was “forced” to
engage in the oral sex acts was belied by the evidence and that the victim’s attempts at
resistance would not have been foolish or useless; rather, “such resistance would probably
have been successful.” Id. at 528.
¶ 36 In the case before us, T.V. did not have an opportunity to escape the sexual assaults,
which began while T.V. was sleeping; there was no break in the series of offenses. T.V.
testified that she was afraid when she awoke to find her father with his head between her legs
and his mouth on her vagina. Moreover, defendant positioned himself on top of T.V. while
performing the sexual assaults, even using his arm to hold her down at one point. There was
no evidence presented that T.V.’s attempts at resistance would have proved successful.
¶ 37 Defendant briefly contends the trial court erred in ruling he was guilty of the same acts
of penetration, namely, his mouth, finger and penis to T.V.’s vagina, under the theories of
liability that T.V. was “unable to understand the nature of the act” and “unable to give
knowing consent.” 720 ILCS 5/12-13(a)(2) (West 2006). Defendant argues that T.V.’s age
and testimony demonstrate she was able to understand the nature of the acts and that the
theory of liability “unable to give knowing consent” is reserved for situations where an
otherwise competent person temporarily was incapable of giving consent because the assault
occurred while the victim was unconscious, asleep, or severely intoxicated and the acts for
which defendant was convicted occurred while T.V. was awake.
¶ 38 In regard to the theory of liability of “unable to understand the nature of the acts,” this
court has said that merely demonstrating “the victim understood the physical nature of sexual
relations is not sufficient to establish that the victim comprehended the social and personal
costs involved.” People v. Blake, 287 Ill. App. 3d 487, 493, 678 N.E.2d 761 (1997). We
recognize that this theory of liability is often raised where the victim had a mental
impairment; however, we are reminded that the trial court assessed the victim during her

-10-
 testimony and concluded that she was unable to understand the nature of the sexual acts. See
Jackson, 358 Ill. App. 3d at 941. T.V. was 14 years old at the time of the sexual assaults and
testified that her “daddy” put “his mouth” on her vagina, “took his fingers and put them in
[her] vagina,” and “penetrated [her] vagina with his penis.” Defendant has not demonstrated
that, when viewed in a light most favorable to the State, the evidence was so unreasonable,
improbable, or unsatisfactory to raise a reasonable doubt as to his guilt that T.V. was unable
to understand the nature of the sexual acts.
¶ 39 In regard to the theory of liability of “unable to give knowing consent,” this court has
said:
“ ‘Consent’ implies a willingness, voluntariness, free will, reasoned or intelligent
choice, physical or moral power of acting, or an active act of concurrence (as opposed
to a passive assent) unclouded by fraud, duress, or mistake. [Citation.] The ability to give
knowing consent should involve more than measuring complainant’s IQ or ability to
physically resist defendant. Knowing consent requires us to examine all of the
circumstances to see if defendant knowingly exercised such control over complainant
that a trier of fact could find that complainant did not submit to the sexual advances of
defendant voluntarily, intelligently, and by an active concurrence.” People v. Whitten,
269 Ill. App. 3d 1037, 1044, 647 N.E.2d 1062 (1995).
There was absolutely no evidence presented that T.V. was able to voluntarily, intelligently,
and actively concur with defendant’s sexual advances. On two separate occasions, T.V. was
awoken to find her father in the midst of the unbroken series of sexual assaults. Defendant
has not demonstrated that the evidence, when viewed in a light most favorable to the State,
was so unreasonable, improbable, or unsatisfactory to raise a reasonable doubt as to
defendant’s guilt that T.V. was unable to give knowing consent to the sexual acts.

¶ 40 III. Ineffective Assistance of Counsel
¶ 41 Defendant contends his counsel was ineffective for failing to file a motion to suppress
his inculpatory statements. Defendant argues he invoked his right to remain silent pursuant
to Miranda and the inculpatory statements resulted from subsequent interrogations in
violation of his Miranda rights.
¶ 42 To establish an ineffective assistance of counsel claim, the defendant must demonstrate
the counsel’s representation fell below an objective standard of reasonableness and he
suffered resulting prejudice such that there is a reasonable probability that, but for the
counsel’s errors, the result of the proceeding would have been different. Strickland v.
Washington, 466 U.S. 668, 694 (1984). A defendant must overcome the strong presumption
that the trial counsel’s challenged actions were a matter of sound trial strategy. Id. at 689-90.
A defendant must satisfy both prongs of the Strickland test; however, where prejudice has
not been demonstrated, a court need not determine whether the counsel’s performance was
deficient. People v. Harris, 206 Ill. 2d 293, 303, 794 N.E.2d 181 (2002).
¶ 43 “[I]f a defendant takes the witness stand and admits in substance matters contained in a
confession or statement he has given the police, this testimony will be considered to have
waived or made harmless any error that may have occurred in the admission of the

-11-
 confession or statement.” People v. Auilar, 59 Ill. 2d 95, 100, 319 N.E.2d 514 (1974); see
also People v. Schuld, 175 Ill. App. 3d 272, 282, 529 N.E.2d 800 (1988); People v. Barr, 85
Ill. App. 3d 992, 998, 407 N.E.2d 782 (1980); People v. Villalobos, 78 Ill. App. 3d 6, 15, 396
N.E.2d 1081 (1979).
¶ 44 Defendant testified to the details of the sexual assaults, confirming the substance of the
statements he made to the detectives and ASA Kross. Most notably, defendant testified that
he penetrated T.V.’s vagina with his mouth, finger, and penis on both dates at issue. These
were the actions for which he was convicted. Moreover, defendant admitted on the stand that
the charges were accurate and “most” of what he told ASA Kross was the truth. We are not
persuaded by defendant’s argument that we should not find waiver or harmless error where
he was forced to take the stand because his statements were admitted. Defendant’s testimony
was inconsistent. He testified that he was convinced to make the statements in order to
receive therapeutic treatment; however, he testified consistently with the substance of the
sexual assaults. It was the trial court’s duty to resolve the inconsistencies, and the court
resolved them against defendant. See Jackson, 358 Ill. App. 3d at 941. Contrary to
defendant’s argument on appeal, he never testified regarding the inaccuracies in the
statements. Blanket, ambiguous testimony providing that “most” of the statement was correct
and that the detectives knew the truth does not demonstrate defendant was obligated to
testify. We conclude defendant’s testimony waived or made harmless the error, if any, in
defense counsel’s decision not to file a motion to suppress defendant’s statements.
Consequently, defendant’s ineffective assistance of counsel claim fails.

¶ 45 IV. Presentence Detention Credit
¶ 46 Defendant finally contends he is entitled to 707 days of presentence detention credit. The
State contends we should not consider the printed Internet page showing his time in custody
that defendant attached to his appellate brief.
¶ 47 A defendant is entitled to receive credit against his sentence for the time spent in custody
on the offense for which he was convicted. 730 ILCS 5/5-8-7(b) (West 2006). This court may
take judicial notice of the Department of Corrections’ records because they are public
documents. People v. Hill, 408 Ill. App. 3d 23, 32, 945 N.E.2d 1246 (2011).
¶ 48 Defendant was arrested on September 27, 2007, and remained in custody until he was
sentenced on September 3, 2009. The State does not challenge these dates nor that defendant
remained in custody for that entire period for the offenses on which he was convicted in this
case. We, therefore, conclude defendant is entitled to 707 days of presentence detention
credit. We instruct the clerk of the court to correct defendant’s mittimus to reflect the credit.

¶ 49 CONCLUSION
¶ 50 We affirm defendant’s convictions and sentence. We conclude there was independent
evidence supporting defendant’s conviction for digital penetration on September 14, 2007.
We find the evidence demonstrated defendant used force or threatened the use of force in
committing the sexual assaults and that T.V. was unable to understand the nature of the
offenses and unable to give knowing consent to the sexual advances. We further conclude

-12-
 that defense counsel was not ineffective. Finally, we instruct that defendant receive 707 days
of presentence detention credit.

¶ 51 Affirmed; mittimus corrected.

-13-