People v. Jackson

ILLINOIS OFFICIAL REPORTS
Appellate Court

People v. Jackson, 2012 IL App (1st) 100398

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

District & No. First District, Second Division
Docket No. 1-10-0398

Filed February 7, 2012

Held Defendant’s convictions for aggravated criminal sexual assault and
(Note: This syllabus criminal sexual abuse based on offenses he committed when he was 15
constitutes no part of years of age were upheld over his contentions that certain evidentiary
the opinion of the court rulings resulted in an unfair trial, that the evidence was insufficient to
but has been prepared establish his guilt beyond a reasonable doubt, and that the automatic
by the Reporter of transfer provision of the Juvenile Court Act allowing the transfer of a
Decisions for the juvenile aged 15 or over charged with certain Class X felonies to be
convenience of the prosecuted as an adult in criminal court violated his due process rights,
reader.)
constituted cruel and unusual punishment and violated the proportionate
penalties clause of the Illinois Constitution.

Decision Under Appeal from the Circuit Court of Cook County, No. 07-CR-1061; the
Review Hon. Lawrence Edward Flood, Judge, presiding.

Judgment Affirmed.
Counsel on Michael J. Pelletier, Karen Munoz, and Duane E. Schuster, all of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.

Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Joan
F. Frazier, Mary L. Boland, and Joseph A. Alexander, Assistant State’s
Attorneys, of counsel), for the People.

Panel PRESIDING JUSTICE QUINN delivered the judgment of the court, with
opinion.
Justices Connors and Harris concurred in the judgment and opinion.

OPINION

¶1 This criminal appeal, in part, challenges the constitutionality of section 5-130 of the
Illinois Juvenile Court Act of 1987 (705 ILCS 405/5-130(1)(a) (West 2010)), which
procedurally provides for an automatic transfer of a juvenile age 15 or over to criminal court
to be prosecuted as an adult when charged with certain Class X felonies. Specifically,
defendant argues that the automatic transfer provision: (1) violates his due process rights; (2)
constitutes cruel and unusual punishment; and (3) violates the proportionality clause of our
state constitution. For the reasons stated herein, we find defendant’s constitutional challenges
to the automatic transfer provision of the Illinois Juvenile Court Act to be without merit.
¶2 This appeal also challenges certain evidentiary rulings as creating an unfair trial and the
sufficiency of the evidence to support the jury’s verdict of guilty beyond a reasonable doubt.
We reject these challenges.

¶3 BACKGROUND
¶4 The trial evidence established that the victim began visiting her paternal grandmother’s
home when she was four years old. The victim’s grandmother lived with the defendant, the
victim’s “Uncle Buckie.” The victim testified that every time she visited her grandmother’s
house, the defendant would come into bed with her and put his “thing” in her “front” and butt
and put his finger in her “front” and butt. When she was five years old, defendant slapped
her on her cheek while in bed and as he performed these sex acts on her. The victim’s mother
testified that the victim visited her paternal grandmother every other weekend from
December 2005 to March 2007, when she stopped the visits after noticing a handprint on her
daughter’s cheek when she picked her up. It was then that her daughter related the stories of
sexual assault. The emergency room (ER) nurse, Elizabeth Schoefeld, testified that the victim
described the sexual assault by defendant and also told her the defendant smacked her on the
cheek. The ER physician, Dr. Colbert, had examined the victim and testified that “without
any question or reservation, this [referring to his physical findings] is by definition sexual

-2-
 abuse.” The defendant’s expert social worker, Susan Robbins, testified that in her opinion
the investigation was geared “to validate what the child said” and that “it appears that every
person who saw this child was looking to confirm what she said rather than to investigate
what may have happened, if anything,” even though there was no evidence of the mother
claiming abuse but the child denying it, no evidence that the mother was “doctor shopping,”
and no evidence of the child repeatedly denying any abuse until placed in a situation where
she would eventually cry out. In fact, there was no instance in the written record of the
investigation where the victim ever denied being sexually assaulted. The defense’s evidence
consisted primarily of alibi witnesses who testified that the defendant was not staying at his
home on the weekends the victim came to visit which contradicted the victim’s mother and
her friend’s testimony that he was present. The jury found the defendant guilty of two counts
of aggravated criminal sexual assault and one count of criminal sexual abuse and acquitted
the defendant on two other counts of criminal sexual assault and one other count of criminal
sexual abuse.

¶5 I. DEFENDANT’S CONSTITUTIONAL CHALLENGES
TO AUTOMATIC TRANSFER
¶6 The defendant, Tarue Jackson was born on December 19, 1991. On May 14, 2007, he
was 15 years old and was charged with several counts of aggravated criminal sexual assault
(720 ILCS 5/12-14(b) (West 2006)) and one count of aggravated criminal sexual abuse (720
ILCS 5/12-16(c)(2) (West 2006)). Pursuant to the automatic transfer provision of the Illinois
Juvenile Court Act of 1987 (705 ILCS 405/5-130 et seq. (West 2006)), defendant’s case
proceeded in criminal court because he was statutorily excluded from the jurisdiction of
juvenile court because he was at least 15 years old and was accused of aggravated criminal
sexual assault. A jury found the defendant guilty of two counts of aggravated criminal sexual
assault and one count of criminal sexual abuse on April 28, 2009. On September 24, 2009,
the trial court sentenced defendant to seven years in prison for each count of aggravated
criminal sexual assault and four years for the one count of aggravated criminal sexual abuse.
The sentence imposed for each count was one year more than the minimum amount of
incarceration defendant could receive for his convictions. 730 ILCS 5/5-8-1(a)(3), (a)(5)
(West 2006). Defendant appeals and argues that the automatic transfer provision is
unconstitutional. Defendant acknowledges that the Illinois Supreme Court has previously
found the automatic transfer provision to be constitutional (People v. J.S., 103 Ill. 2d 395
(1984); People v. M.A., 124 Ill. 2d 135 (1988); People v. Miller, 202 Ill. 2d 328 (2002)), but
argues that the legal landscape has been altered enough by two United States Supreme Court
cases to warrant a fresh look citing Roper v. Simmons, 543 U.S. 551 (2005), and Graham v.
Florida, 560 U.S. ___, 130 S. Ct. 2011 (2010). We address each of defendant’s three
constitutional challenges, seriatum.

¶7 A. Standard of Review
¶8 The constitutionality of any statute is a matter of law which is subject to de novo review
on appeal. People v. Sharpe, 216 Ill. 2d 481, 486-87 (2005). This court has “a duty to

-3-
 construe a statute in a manner that upholds its validity and constitutionality” if it can
reasonably be accomplished. People v. Graves, 207 Ill. 2d 478, 482 (2003). A statute also
carries with it a strong presumption of constitutionality. People v. Sharpe, 216 Ill. 2d at 487.
The party challenging a statute has the burden of clearly establishing that the statute violates
the constitution. People v. Sharpe, 216 Ill. 2d at 487. It is against this backdrop that we
analyze defendant’s constitutional challenges to the automatic transfer provision contained
in the Illinois Juvenile Court Act.

¶9 B. The United States Supreme Court Cases of Roper and Graham
¶ 10 The first United States Supreme Court case cited by defendant in support of his three
constitutional arguments is Roper v. Simmons, 543 U.S. 551 (2005). In Roper, the defendant,
a 17-year-old, committed murder. He did not fall within the jurisdiction of Missouri’s
juvenile court system. He was tried and convicted as an adult and sentenced to death. The
issue before the Court was whether the 17-year-old’s death penalty sentence violated the
eighth amendment’s prohibition of cruel and unusual punishment. The Supreme Court, by
a vote of 5 to 4, held that the eighth and fourteenth amendments prohibit a sentence of death
on defendants who were under the age of 18 at the time of the commission of their crime.
Roper v. Simmons, 543 U.S. at 578.
¶ 11 The second United States Supreme Court case relied on by defendant is Graham v.
Florida, 560 U.S. ___, 130 S. Ct. 2011 (2010). Defendant Graham was 16 years old when
he was involved in an attempted robbery. Pursuant to Florida’s automatic transfer provision,
he was charged as an adult, and he pled guilty to armed burglary with assault and battery and
attempted armed robbery. He was initially sentenced to concurrent three-year terms of
probation, but when he violated his probation by committing a home-invasion robbery,
possessing a firearm, associating with others engaged in criminal activity and attempting to
avoid arrest, the court revoked his probation and sentenced Graham to what, in effect, was
life in prison without parole. The Supreme Court held that the Constitution’s eighth
amendment does not permit a sentence of life without parole for a juvenile criminal who
does not commit a homicide. Graham v. Florida, 560 U.S. at ___, 130 S. Ct. at 2030. The
Court’s decision contains no holding regarding whether automatic transfer provisions, such
as the one in this case, are a violation of any constitutional rights. It merely took note of
Florida’s automatic transfer provision (Graham v. Florida, 560 U.S. at ___, 130 S. Ct. at
2030-31), which, like the instant case, procedurally landed defendant in criminal court. The
Graham Court ruled that it is unconstitutional to impose a sentence of life without parole for
a juvenile who did not commit a homicide.

¶ 12 C. Defendant’s Due Process Challenge
¶ 13 Without specifically identifying whether defendant is claiming the automatic transfer
provision in the Illinois Juvenile Court Act violates substantive or procedural due process,
defendant claims generally that he was deprived of life, liberty or property without due
process of law, citing the fourteenth amendment to the United States Constitution. U.S.
Const., amend. XIV; Ill. Const. 1970, art. I, § 2. In People v. Salas, the First Division of this

-4-
 court recently held that the automatic transfer provision of the Illinois Juvenile Court Act did
not deprive a defendant due process rights. People v. Salas, 2011 IL App (1st) 091880. We
agree. We also analyze defendant’s arguments to determine if the statute violates the
constitutional guarantee that a person may not be deprived of liberty without due process of
law (substantive due process) or whether the procedural mechanisms employed in the statute
require that defendant be given the opportunity to be heard in both a meaningful time and
manner (procedural due process).
¶ 14 Almost 18 years ago, the Illinois Supreme Court addressed the issue of whether the
automatic transfer provision contained in the Illinois Juvenile Court Act violates the
constitutional guarantee of substantive due process that provides that the accused may not
be deprived of liberty without due process of law in the case of People v. J.S., 103 Ill. 2d 395
(1984). The supreme court applied the “rational basis” test as the appropriate method to
evaluate whether the automatic transfer provision comported with the defendant’s
substantive due process guarantee. People v. J.S., 103 Ill. 2d at 402-03. Under the “rational
basis” test, a statutory provision passes constitutional challenge if it is rationally related to
a legitimate state interest. People v. J.S., 103 Ill. 2d at 403. In J.S., our supreme court held
that because the automatic transfer provision included only the more heinous Class X
felonies of murder, rape, deviate sexual assault and armed robbery with a firearm and limited
its application to 15- and 16-year-old defendants, it was a rational classification because it
was “rationally based on the age of the offender and the threat posed by the offense to the
victim and the community because of its violent nature and frequency of commission.”
People v. J.S., 103 Ill. 2d at 404. The court held that the automatic transfer provision does
not violate any due process requirements because it is reasonably drafted to remedy the evils
that society has determined to be a threat to public health, safety and welfare due to the
violent nature of the crimes.
¶ 15 Defendant believes that the United States Supreme Court holdings in both Roper and
Graham, supra, demand a different result because it is no longer rational to automatically
transfer 15- and 16-year-olds to adult court when there is no legitimate penological
justification for an adult sentence. Those four penological justifications are: (1) deterrence,
(2) retribution, (3) incapacitation, and (4) rehabilitation. See Graham, 560 U.S. at ___, 130
S. Ct. at 2028-30. Defendant submits that those four justifications should be used by a
decision-maker to determine whether it is both necessary and appropriate to transfer the15-
or 16-year-old criminal offender to adult court rather than do so automatically and not wait
until after a conviction when the court is fashioning an appropriate sentence. In other words,
defendant submits that it is no longer rational to automatically transfer 15- and 16-year-old
offenders to adult court without some hearing where the four possible justifications are
litigated as applied to the defendant.
¶ 16 Both Roper and Graham decided constitutional challenges made to sentencing statutes:
whether the death penalty and natural life in prison without parole for juveniles constituted
cruel and unusual punishment under the eighth amendment. No due process arguments were
raised or addressed in either Roper or Graham. In the instant case, we are concerned not only
with a non-sentencing statute but a challenge made under the due process clause. Therefore,
defendant’s argument is without merit as People v. J.S. remains on solid footing with the

-5-
 Supreme Court’s holdings in Roper and Graham. Defendant’s substantive due process rights
were not violated when he was automatically transferred to adult court pursuant to the
automatic transfer provision of the Illinois Juvenile Court Act of 1987 (705 ILCS 405/5-130
(West 2006)).
¶ 17 Procedural due process deals with the specific procedures that are employed in a statute
and requires an analysis of whether defendant is given a meaningful opportunity to be heard.
People v. P.H., 145 Ill. 2d 209 (1991). Although defendant does not characterize it as such,
it appears that because he argues that he is entitled to be heard regarding whether his transfer
to adult court is necessary and appropriate, he was not afforded procedural due process.
Again in People v. J.S., the Illinois Supreme Court considered this identical procedural due
process argument as it applied to the automatic transfer provision of the Illinois Juvenile
Court Act and held that the provision did not violate any procedural due process rights. The
court held that the automatic transfer provision “does not leave room for disparity in
treatment between individuals within its proscription. All 15- and 16-year-olds who have
committed the enumerated offenses, which we have held were not arbitrarily or unreasonably
selected by the legislature, are to be prosecuted in the adult criminal court system. There is
no discretionary decision to be made by the juvenile court, and therefore we do not believe
that the holding in [the United States Supreme Court case ] Kent is dispositive.” People v.
J.S., 103 Ill. 2d at 405 (citing Kent v. United States, 383 U.S. 541 (1966)). The J.S. court held
that the automatic transfer provision of the Illinois Juvenile Court Act does not leave any
room for disparity in treatment of anyone identified within its language. The provision
requires that anyone who is 15 or 16 years of age at the time of the commission of one of the
listed criminal acts be prosecuted within the adult criminal court system. People v. J.S., 103
Ill. 2d at 405. Therefore, defendant’s argument is without merit.

¶ 18 D. Defendant’s Proportionate Penalties’ Clause Challenge
¶ 19 Defendant submits that the automatic transfer provision of the Illinois Juvenile Court Act
violates the proportionate penalties clause of our state constitution. Again, in People v. Salas,
2011 IL App (1st) 091880, the First Division of this court recently held that it does not. We
agree. The proportionate penalties clause states that “[a]ll penalties shall be determined both
according to the seriousness of the offense and with the objective of restoring the offender
to useful citizenship.” Ill. Const. 1970, art. I, § 11. This clause specifically deals with
penalties. In this case, we are dealing with the automatic transfer provision, which occurs
well before a trial, not at a time of rendering guilt and imposition of penalty. Defendant is
not challenging the penalty meted out to him after his conviction. He is challenging the
procedure (automatic transfer provision) that exposed him to the range of possible penalties
for adults in criminal court. The automatic transfer provision imposes no penalty or
punishment. Our supreme court has held that the “proportionate penalties clause is
coextensive with the cruel and unusual punishment clause. [Citations.] Both clauses apply
only to the criminal process–that is, to direct actions by the government to inflict
punishment.” In re Rodney H., 223 Ill. 2d 510, 518 (2006). Although Rodney H. dealt with
provisions of the Illinois Juvenile Court Act and the Children and Family Services Act (20
ILCS 505/5(l) (West 2004)) that allowed a court to place a ward in the guardianship of the

-6-
 Department of Children and Family Services if the delinquent minor was under 13 years of
age, the rationale and resulting principle surrounding the proportionate penalties challenge
remains equally applicable here. Because the automatic transfer provision of the Illinois
Juvenile Court Act imposes neither a penalty nor punishment, the proportionate penalty
clause of the Illinois Constitution is inapplicable. For the same reasons, the two United States
Supreme Court cases of Roper and Graham, dealing with only eighth amendment holdings
on punishment imposed, are unhelpful to defendant, who is making a proportionate penalties
challenge.
¶ 20 The defendant argues that because the automatic transfer provision exposed him to the
possibility of a mandatory consecutive sentence of up to 30 years on each of the two counts
of aggravated criminal sexual assault, even though he received only 7 years per count, this
possibility, even though it was never realized, violated the Illinois constitutional requirement
of proportionality in sentencing, citing People v. Miller, 202 Ill. 2d 328 (2002). The Miller
case involved a 15-year-old who was convicted of two counts of murder when he acted as
a lookout. Miller, 202 Ill. 2d at 330-31. The trial court refused to impose a mandatory natural
life sentence which was statutorily applicable to these facts and found that such a
punishment, if imposed on the defendant, would violate the proportionate penalties clause.
Miller, 202 Ill. 2d at 330. Instead, the trial court gave the defendant 50 years in prison.
¶ 21 The Miller court affirmed, reasoning that the mandatory life sentence “grossly distorts
the factual realities of the case and does not accurately represent defendant’s personal
culpability such that it shocks the moral sense of the community. This moral sense is
particularly true *** where a 15-year-old with one minute to contemplate his decision to
participate in the incident and stood as a lookout during the shooting, but never handled a
gun, is subject to life imprisonment with no possibility of parole–the same sentence
applicable to the actual shooter.” Miller, 202 Ill. 2d at 341. The supreme court held that the
multiple-murder sentencing statute as it would apply to a defendant in this particular factual
scenario violated the proportionate penalties clause. Miller, 202 Ill. 2d at 343. This was a
very limited holding where the combination of the automatic transfer provision, the
accountability statute and the multiple-murder sentencing statute would result in a mandatory
life sentence without the possibility of parole for a 15-year-old who acted as a lookout. In the
instant case, defendant Tarue Jackson was the actual perpetrator of the aggravated criminal
sexual assault. He was not convicted because he acted as a lookout while someone else
committed the crime or on some other theory of accountability. Upon conviction, defendant
was not immediately subjected to a mandatory sentence of life in prison without possibility
of parole. The trial court was not prevented from weighing the facts of the case as well as all
evidence submitted on the topics of both aggravation and mitigation. Therefore, Miller is
inapplicable to this case and does not cause us to conclude that the automatic transfer
provision, which caused the defendant to be tried as an adult, is in violation of the
proportionate penalties clause and, therefore, unconstitutional.

¶ 22 E. Defendant’s Cruel and Unusual Punishment Challenge
¶ 23 The eighth amendment provides as follows: “Excessive bail shall not be required, nor

-7-
 excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const., amend.
VIII. Defendant was given a punishment of seven years for each of the two counts of
aggravated criminal sexual assault and four years for aggravated criminal sexual abuse for
which he was convicted. He does not complain of these sentences directly. His argument is
that the automatic transfer provision violates the eighth amendment because it mandates that
all 15- and 16-year-olds who are charged with certain grievous offenses be transferred to
adult criminal court. The defendant argues that the rulings in both Roper and Graham call
for reconsideration of the constitutionality of automatic transfer provisions. In other words,
defendant submits that it is cruel and unusual punishment for the legislature to mandate that
any 15-year-old juvenile be automatically subjected to adult criminal court proceedings
because there may be some possibility that the ultimate punishment he or she receives if
found guilty may be disproportionate to his or her criminal involvement. The defendant
argues that none of the legitimate penological goals of retribution, deterrence, incapacitation
and rehabilitation are served by transferring a 15-year-old juvenile automatically to adult
criminal court. This court has already addressed whether the automatic transfer provision
constitutes cruel and unusual punishment. People v. Salas, 2011 IL App (1st) 091880. We
agree with its finding that it does not for the following reasons.
¶ 24 The automatic transfer provision is not a penalty provision in even the broadest sense.
It merely dictates for a small class of older juvenile defendants who are charged with the
commission of certain heinous crimes where their cases are to be tried. Guilt has not been
determined at this stage, let alone what punishment, if any, should be imposed. The
automatic transfer provision does not dictate any form of punishment as that term is used
throughout criminal statutes. Because the automatic transfer provision does not mandate or
even suggest a punishment, any analysis as to whether or not it violated the eighth
amendment’s proscription against cruel and unusual punishment is futile. The automatic
transfer provision does not impose any punishment. Therefore, it is not subject to the eighth
amendment. We find no violation of the cruel and unusual punishment clause.

¶ 25 III. DEFENDANT’S COMPLAINTS OF TRIAL COURT’S
EVIDENTIARY RULINGS
¶ 26 Two of defendant’s remaining appellate issues claim that certain evidentiary rulings by
the trial court deprived him of his right to present a defense.

¶ 27 A. Standard of Review
¶ 28 Whether or not evidence is admitted during a criminal trial is within the sound discretion
of the trial court. Such rulings are not reversed unless there is a clear showing of abuse of
discretion by the trial court. People v. Tenney, 205 Ill. 2d 411, 436 (2002). Our supreme court
has stated that “ ‘[a]buse of discretion’ is the most deferential standard of review–next to no
review at all–and is therefore traditionally reserved for decisions made by a trial judge in
overseeing his or her courtroom or in maintaining the progress of a trial.” In re D.T., 212 Ill.
2d 347, 356 (2004). The only time an abuse of discretion is found is when the trial court’s
ruling is “arbitrary, fanciful or unreasonable” or when “no reasonable [person] would take

-8-
 the view adopted by the trial court.” (Internal quotation marks omitted. ) People v. Donoho,
204 Ill. 2d 159, 182 (2003).

¶ 29 B. Attempted Defenses and Our Analysis
¶ 30 Defendant attempted to defend himself against the aggravated sexual assault and abuse
charges by theorizing that the victim’s mother had a motive to lie about what happened to
her daughter. Defendant’s brother was the victim’s father. The victim’s mother listed another
man as the victim’s father on the victim’s birth certificate. Defendant surmised that the other
man sought a paternity test at the urging of defendant’s brother and that test determined that
the defendant’s brother was the victim’s real biological father. The defendant theorizes that
because of the new proof of paternity, the relationship between the victim’s mother and the
other man ended, angering the victim’s mother and causing her to bar the victim from any
contact with defendant’s brother (her father) or his family until the paternal grandmother was
able to work out a friendly relationship so the defendant’s brother’s family could see the
victim.
¶ 31 We fail to see how the trial court inhibited this defense. The trial court allowed the
defendant to present evidence of bias and motive directly from the victim’s mother when it
ruled on the issue, as follows: “I think that that’s relevant on cross-examination to the issue
of bias or prejudice, and I think it is an appropriate area of cross-examination. It’s certainly
not a collateral issue as far as impeachment is concerned. So I think it is appropriate to go
into.” Following this ruling, defense counsel did not use the issue of paternity to explore the
victim’s mother’s possible bias or motives during cross-examination. Defendant is entitled
to an opportunity to prevent his version of events within the confines of our rules of evidence
(Washington v. Texas, 388 U.S. 14, 19 (1967)), and with the above ruling by the trial court,
defendant was given that opportunity. Instead, defendant now claims that he was prevented
from pursuing this theory of bias and bad motive when the trial court prohibited any direct
examination of the defendant’s mother on this theory as it would constitute inadmissible
hearsay. All knowledge that this witness possessed was indirect as it was based on
conversations she had with the victim’s mother and others. Defendant, in pursuing a defense,
has no right to violate the rules of evidence. People v. Smith, 152 Ill. 2d 229, 266 (1992). We
hold that both trial court rulings surrounding defendant’s desire to pursue a theory of bias or
bad motive by the victim’s mother were correct and defendant was not prevented from
pursuing this theory within the well-established rules of admissible testimony.
¶ 32 Next, defendant complains that he was denied his right to present a complete defense
when it ruled that defendant’s hired expert: (1) would not be allowed to interview the victim;
(2) would not be allowed to sit at defense counsel’s table during the presentation of the
State’s case; and (3) would not be allowed to comment on the victim’s credibility.
¶ 33 These three claimed errors by the trial court are disposed of by well-settled, long-standing
case law. The defendant’s right to a fair trial does not include an order by the trial court to
compel a victim to speak with defense counsel or his hired experts. People v. Peter, 55 Ill.
2d 443 (1973). The trial court took note of the fact that defendant could not cite any case
precedent “where a child victim of a criminal sexual assault or abuse case has ever been

-9-
 required to submit to a pretrial interview or deposition.” The trial court did not err in denying
defendant’s expert access to the victim for a forced interview. The specific request by
defendant was for permission to have the victim interviewed by his expert, Susan Robbins,
who has a Ph.D. in social work and who was an associate professor for 29 years at the
University of Houston College. Dr. Robbins testified that she had never interviewed any
children who have been sexually abused nor had she ever worked as an interviewer of
children in her professional career. The defendant primarily relies on People v. Wheeler, 151
Ill. 2d 298 (1992), as authority for his claim that he was denied a fair trial when the trial court
denied his request. However, in Wheeler, the court allowed such a victim interview by the
defendant’s expert because the victim’s mental diagnosis of “Rape Trauma Syndrome” bore
directly on an essential element of the charge the State was attempting to prove and the State
in Wheeler intended to offer the testimony of its own expert to support that element of proof
at trial. In the instant case, the State did not utilize any expert’s psychological evaluation or
diagnosis of the victim to prove up any element of the aggravated sexual assault or abuse
charges. The trial court was not asked by the defendant to perform an independent
psychological evaluation of the victim (which it appears Dr. Robbins was not qualified to
perform), but asked to approve some nebulous interview by a professor who had never
conducted an interview of an underage sex abuse victim before. The defendant had not
presented sufficient, compelling reasons to the court for his request, especially since the
mental state of the victim did not bear directly on an essential element of the charges. We
hold that the trial court did not err in denying the defendant’s request for a private interview
of the victim conducted by defendant’s hired expert, Dr. Robbins, especially since the State
decided to forgo calling at trial any professionals who interviewed the child victim from the
Children’s Advocacy Center.
¶ 34 Defendant also claims he was denied a fair trial when the trial court denied his request
to allow defendant’s expert, Dr. Robbins, to sit at counsel’s table to observe the State’s entire
case-in-chief. The trial court previously allowed a mutual motion to exclude all witnesses
from the courtroom so as to preclude a witness from shaping his or her testimony to conform
to others’ testimony that had already occurred during trial. This is a trial procedure that is
routinely followed. People v. Johnson, 47 Ill. App. 3d 362, 369 (1977). Defendant provides
no reasonable basis to make an exception for Dr. Robbins and allow her to not only observe
the entire case, but to do so from counsel’s table. We see no abuse of discretion by the trial
court in following this time-honored practice of excluding witnesses from observing the trial
before they testified. To allow the procedure defendant requested would have had the grave
potential of not only creating an unfair advantage for one side’s expert witness prior to her
testimony but of unfairly elevating the importance of this witness’s testimony in the eyes of
jurors over that of other witnesses as she sat in a place usually reserved solely for counsel and
the defendant.
¶ 35 Next, the defendant complains that he was denied a fair trial when the trial court
prohibited the defendant’s hired expert, Dr. Robbins, from commenting on the credibility of
the child victim during her testimony. Our supreme court recently reaffirmed its previous
holding that it is improper for any witness to comment on the credibility of another witness’s
testimony. People v. Becker, 239 Ill. 2d 215, 236 (2010). Determination of the credibility of

-10-
 any witness’s testimony is solely within the province of the trier of fact. People v. Becker,
239 Ill. 2d at 236. When the trial court did not allow Dr. Robbins to opine about what a
typical girl of the victim’s age would and would not be able to remember, the trial court was
correct in not allowing such testimony as it would constitute adverse comments about the
credibility of the victim. People v. Becker, 239 Ill. 2d at 236. Defendant cites People v.
Cardamone, 381 Ill. App. 3d 462 (2008), in support of his argument that the trial court
should have allowed his expert to so comment. However, in Cardamone, the defendant’s
expert testimony was excluded in its entirety. Here, Dr. Robbins was allowed to testify about
her professional opinions regarding the investigation, but could not comment on the
credibility of the victim, as that was for the jury to decide using its common sense and
intelligence. Additionally, in Cardamone, there was no physical evidence, so the court held
that the excluded expert testimony that was proposed regarding complex psychological
concepts was beyond the experience of the average juror and possibly could have been
helpful to the jury in deliberating the defendant’s case. People v. Cardamone, 381 Ill. App.
3d at 506. An evaluation and determination of a witness’s credibility are not beyond any
jury’s experience; rather, that is one of its primary functions. People v. Gilliam, 172 Ill. 2d
484, 513 (1996).

¶ 36 IV. DEFENDANT’S CLAIM THAT THE STATE DID NOT
PROVE ITS CASE
¶ 37 Defendant makes a claim that there was insufficient proof for any jury to find him guilty
beyond a reasonable doubt.

¶ 38 A. Standard of Review
¶ 39 This court reviews a defendant’s claim to the sufficiency of the criminal trial evidence
in a light most favorable to the prosecution. People v. Wheeler, 226 Ill. 2d 92, 114 (2007).
In other words, “the reviewing court must allow all reasonable inferences from the record in
favor of the prosecution.” People v. Cunningham, 212 Ill. 2d 274, 280 (2004). This court
must decide whether any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); People v.
Wheeler, 226 Ill. 2d at 114. This court’s function, as a reviewing court, is not to retry the
defendant (People v. Rodriguez, 408 Ill. App. 3d 782, 792 (2011) (citing People v. Evans,
209 Ill. 2d 194, 209 (2004))), but to determine whether the jury’s guilty verdict is so
unreasonable or improbable that it justifies a finding of reasonable doubt of defendant’s guilt
and, therefore, reversal of the verdict. People v. Wheeler, 226 Ill. 2d at 115.
¶ 40 As previously stated, defendant was convicted of two counts of aggravated criminal
sexual assault (720 ILCS 5/12-14(b) (West 2006)) and one count of aggravated criminal
sexual abuse (720 720 ILCS 5/12-16(c)(2) (West 2006)). The State proved the elements of
the charged crimes as follows: (1) the birth certificates of the defendant and victim, which
proved that defendant was under age 17 and his victim was under age 9 at the time of the
crime; (2) the defendant committed acts of sexual misconduct and penetration when the
victim testified that the defendant placed his “thing” in both her “front” and butt; through

-11-
 testimony of medical professionals and the victim’s mother it was established that the victim
used the word “thing” when referring to a man’s penis and “front” when referring to her
vagina; and (3) the testimony of the treating physician, Dr. Christopher Colbert, which
established the physical evidence of abrasions and redness to the victim’s vagina and anus
and a red handprint on the victim’s face, which he testified were consistent with sexual
assault and abuse.
¶ 41 Defendant attempted to defend himself by arguing that because no semen was found, he
could not have sexually assaulted the victim. Pursuant to Illinois statute, the presence of
semen is not a necessary component of proof in a sexual assault case. 720 ILCS 5/12-12(f)
(West 2006); People v. Landis, 229 Ill. App. 3d 128, 133-34 (1992). Defendant points to the
testimony of Dr. Fingearson, who found the victim’s hymen intact and no physical evidence
of penetration or scarring. However, Dr. Fingearson also testified that it was quite normal for
a child sexual assault victim to have an intact hymen because the sexual assault does not
necessarily involve a finger or penis going into the vagina up through the hymen. He testified
that in 80% to 95% of the cases involving a child who has been sexually assaulted, the victim
has a normal examination. He also testified that it is possible for a four- or five-year-old child
to be repeatedly sexually assaulted for two years and not have trauma or other medical
findings. The jury heard all of this evidence and more, weighed it and found defendant guilty
of aggravated criminal sexual assault and aggravated criminal sexual abuse beyond a
reasonable doubt. The jury verdict will not be disturbed. Even if we were to substitute our
judgment for that of the jury, after reviewing the entire trial record, we agree with the
conviction. For all the foregoing reasons, we affirm the defendant’s conviction by the jury
on all charges.

¶ 42 Affirmed.

-12-