Rule 23 order filed 2018 IL App (5th) 150087
September 19, 2018;
Motion to publish granted NO. 5-15-0087
October 2, 2018.
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Lawrence County.
)
v. ) No. 14-CF-20
)
JAMES E. CHOATE III, ) Honorable
) Robert M. Hopkins,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
JUSTICE CHAPMAN delivered the judgment of the court, with opinion.
Justices Cates and Moore concurred in the judgment and opinion.
OPINION
¶1 The defendant, James Choate III, appeals his conviction for predatory criminal sexual
assault of a child (720 ILCS 5/11-1.40(a)(1) (West 2012)). The charge stemmed from abuse of
the defendant’s stepdaughter, Stephanie S. The incident at issue took place shortly after the
family moved from Indiana to Illinois. Although the evidence at trial was focused on events that
took place in Illinois on a specific date, there was also evidence that the defendant abused his
stepdaughter in Indiana. The jury was instructed that the State did not have to prove that the
abuse occurred on a specific date. The jury was not instructed that the State had to prove that the
offense occurred in Illinois. The defendant contends that these instructions allowed the jury to
find him guilty based on conduct that occurred in Indiana, contrary to the rule of criminal
jurisdiction. See id. § 1-5(a)(1) (providing that a criminal defendant is subject to prosecution in
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Illinois only for conduct that occurred at least partially within the state). He argues that trial
counsel was ineffective for failing to request an instruction on jurisdiction or to object to the
instruction telling jurors that the State did not have to prove that the offense took place on the
date specified in the charge. He also argues that the court did not comply with the requirements
of Illinois Supreme Court Rule 431(b) (eff. July 1, 2012) and People v. Zehr, 103 Ill. 2d 472
(1984), during voir dire. We affirm.
¶2 The defendant began a relationship with Stephanie’s mother, Tonya, in 2012. At that
time, Stephanie was seven years old. The defendant and Tonya married in December 2013.
Throughout the relationship, the family moved numerous times, usually staying with relatives.
They lived at various places in Indiana. Early in January 2014, they moved to Sumner, Illinois,
where they shared a trailer with Tonya’s cousin, Joseph A., his wife, Ashley, and their two
children, one-year-old Joseph Jr. and three-month-old Jacob. In the early morning hours of
January 30, Jacob was rushed to the hospital with life-threatening head injuries. The defendant
stayed in the trailer with Stephanie while the other adults went to the hospital with the baby. That
is when the events at issue took place.
¶3 The Department of Children and Family Services (DCFS) became involved due to the
severity of Jacob’s injuries, which were determined to have been inflicted by Joseph. DCFS
investigator Jay Reeves took Joseph Jr. into protective custody. He learned from the adults in the
family that eight-year-old Stephanie also lived in the trailer. Reeves drove to Stephanie’s
elementary school to take her into protective custody as well. In the car, Stephanie told Reeves
that she had a secret. She told him that the defendant touched her “private part” and made her
touch his “private part.” She said that this happened more than once, and that the last time it
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happened was that morning. Reeves reported Stephanie’s allegations to the police and scheduled
a forensic interview for her the following day at the Healing Harbor Child Advocacy Center.
¶4 This matter came for trial in November 2014. Jay Reeves testified that he received a call
at approximately 4 a.m. on January 30, 2014, to investigate a case involving a three-month-old
baby with life-threatening injuries. At the police station, he spoke with the adults who lived in
the trailer with the baby. He learned from them that there were two other children living in the
trailer—the baby’s 15-month-old brother, Joseph Jr., and his 8-year-old cousin, Stephanie. When
Stephanie’s mother, Tonya Choate, indicated that she intended to continue living in the trailer,
Reeves told her that he needed to take both Joseph Jr. and Stephanie into protective custody. At
this time, Joseph Jr. was at the police station with the adults, the baby had been airlifted to a
hospital in Indiana, and Stephanie was at school.
¶5 Reeves left the police station with Joseph Jr. and drove to Stephanie’s school. He testified
that after he explained to Stephanie why he was picking her up, he drove the two children to a
doctor’s office for an initial health screening. Reeves explained that this was standard DCFS
procedure. He testified that he then drove the two children to their foster home, a drive of about
100 miles.
¶6 Reeves testified that during the drive, Stephanie asked if she could call him “Dad.” She
told him that this was what she called all of the men who took care of her. Stephanie referred to
three different men as her dads—her biological father, Levi, her previous stepfather, Doc, and
the defendant, whom she also called Jimmy. Reeves explained to Stephanie that although it was
his job to make sure that she and her little cousin were safe, he would not take care of them the
same way a dad would take care of them. He told her that she could call him either Jay or Mr.
Reeves. He then asked her which of her daddies she liked best. According to Reeves, Stephanie
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told him that she did not like Doc, and she described instances of physical abuse by him. She told
Reeves that her favorite daddy was either Levi or Jimmy.
¶7 Reeves testified that after a pause in the conversation, Stephanie told him that she had a
secret, but she did not know if she should tell him her secret because her mother would be angry.
Reeves assured her that it was his job to listen to her and that she would not get into trouble for
telling him her secret. Reeves testified that Stephanie then told him that Jimmy touched her
“private part” and made her hand touch his “private part.” She told Reeves that this happened
more than once and that the last time was that morning. She explained that she woke up that
morning because she felt the defendant rubbing her “private part.” She told Reeves that the
defendant also held onto her hand and made her rub his “private part.” Reeves testified that
Stephanie asked him, “Why doesn’t he do that with his own hand?” Reeves told her he did not
know why. He testified that Stephanie then told him that she was afraid she would get into
trouble with her mother for telling him this. When he asked her why, Stephanie explained that
her mother grounded her for two weeks just for talking to someone from DCFS in Indiana. She
also told Reeves that she knew her mother loved Jimmy. She told him that she, too, liked Jimmy
except when he was touching her “private.”
¶8 Teresa Miller, the forensic interviewer who conducted an interview with Stephanie, also
testified for the State. During her testimony, a video recording of the interview was played for
the jury. As soon as Stephanie and Miller sat down at a table to begin the interview, Stephanie
noticed the video camera and asked Miller, “Is that a camera?” Miller explained that the
interview was being recorded so that Stephanie would not have to tell her story more than once.
She assured Stephanie that her mother and father would never see the recording. She asked
Stephanie, “Does that make you feel better?” Stephanie shook her head yes, but Miller
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apparently thought she continued to look apprehensive. She asked Stephanie, “You look a little
worried. What are you thinking?” Stephanie replied, “I’m thinking that it’s just that most people
lie to me.” Miller reassured Stephanie and promised never to lie to her.
¶9 Miller then began the interview by asking Stephanie to tell her about herself and her
family. Stephanie told Miller that she was born in Washington, Indiana, and that her family
moved around a lot. She told Miller that they recently moved into a trailer in Sumner, Illinois.
The other people who lived in the trailer were Colby, Ashley, Jacob, Joseph, and Mom and Dad.
Miller asked if any of the people she named were adults. Stephanie explained that Jacob and
Joseph were babies and the other individuals were adults. (We note that although Stephanie does
not clarify this, we presume that she refers to 15-month-old Joseph Jr. as “Joseph” and that
“Colby” is a nickname for Joseph Sr.) When Miller asked if she knew what names other people
called her mom and dad, Stephanie was reluctant to answer. She told Miller that her mom got
angry at her if she used their first names. After Miller assured her that her mother would not see
the video recording, Stephanie told her that the names of her parents were Tonya and Jimmy. She
clarified that Jimmy was her stepfather; her “real dad” was Levi.
¶ 10 Miller then turned Stephanie’s attention to her allegation of abuse. She began by asking
Stephanie what she told Jay Reeves the previous day. Stephanie said that she told Reeves that
she woke up to Jimmy putting her hand on his “private” while her mom was at the hospital with
the baby. She told Miller that this happened in the trailer in Sumner. She told her that the
defendant was sitting on her bed when he did this. She said that he moved her hand to make her
rub his “private.”
¶ 11 Stephanie told Miller that the same thing happened when she lived in Vincennes and
Hammond, but she did not describe any specific incidents. She thought that it happened 10 to 20
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times. First she said that it happened only once at the trailer in Sumner, but she then said that she
thought it happened one other time in Sumner.
¶ 12 Miller asked Stephanie if she ever told anyone about these incidents. Stephanie said that
the first person she told was Jay Reeves, but she noted that she also told her new foster parents
later that evening. Miller asked if she ever told her mother, to which Stephanie replied, “No.”
When Miller asked why, Stephanie told her that she did not tell her mother because she was
afraid her mother would get angry at her. She added, “She usually gets mad.”
¶ 13 At first, Stephanie said that her stepfather did not touch any part of her body other than
her hand. She said this even when Miller asked her if he touched her anywhere else.
Approximately 20 minutes into the interview, Miller asked Stephanie about what, if anything, the
defendant said to her while making her rub his “private part.” At this point, Stephanie told
Miller, unprompted, that the defendant also put his hand inside her body. In response to
questioning, she told Miller that these incidents only occurred when no one else was home.
¶ 14 At trial, Miller acknowledged that she asked Stephanie approximately seven times
whether the defendant ever touched any other part of her body before Stephanie told her that he
put his hand inside her vagina. Miller explained that it was common for children who have been
abused to feel comfortable enough to tell some parts of their stories earlier than others. She
testified that she believed that Stephanie had more to tell her based on her body language and her
facial expressions.
¶ 15 Stephanie also testified at trial. She was nine years old at that time. She was first asked
about the day she met Jay Reeves. She stated that she remembered him picking her up at school.
Asked if she knew why Reeves picked her up, she replied, “Because the baby got hurt.”
Stephanie testified that at the time the baby was hurt, she lived in a trailer in Sumner with her
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mother, her stepfather, the baby who was hurt, and Ashley, Colby, and Jacob. She testified that
she could not remember the name of the baby. (We note that the baby was Jacob.)
¶ 16 Stephanie then testified in detail about the events of that morning. She testified that she
was woken up by Jimmy touching her when it was still dark out. Jimmy was holding her hand on
his penis and had his hand on her vagina, although she used the terms “private” or “private part.”
She testified that she asked Jimmy where the other adults were, and he told her that they were at
the hospital. When she asked why, he told her that the baby was hurt.
¶ 17 Stephanie testified that it felt like two or three of the defendant’s fingers were touching
her and it felt like “his hand went a little bit in [her] bad spot like that.” She explained that he
was rubbing inside “the hole where [her] pee comes out.” She testified that while this was
happening, the defendant placed her hand on his “private part” and told her to “wiggle” it. She
described the defendant’s penis as feeling “like bones” with a “heartbeat.” She also stated that it
“felt like it was dripping down water.” Stephanie testified that she asked the defendant if she
could get up, but he told her, “In just a little bit.” She testified, however, that he later stopped
when she told him she needed to get up to use the bathroom.
¶ 18 Stephanie testified that the same thing happened other times in other places the family
had lived, but she did not know how many times it had happened. She did not remember it
happening any other times when they lived in the trailer in Sumner. She testified that it only
happened when no one else was home. When asked if the abuse always followed the same
pattern, Stephanie said, “No.” She noted that it did not always happen when she was in bed. She
described an incident that occurred while the family was living in a different trailer in Hammond,
Indiana. On that occasion, she went into the bedroom shared by her mother and the defendant
when the defendant asked her if she wanted to feed the turtles. After feeding the turtles, she sat
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on the bed with the defendant, and they watched the turtles. She testified that the defendant then
pulled her down on the bed and “started to do the private thing.” Stephanie testified that they no
longer had turtles when they lived in the trailer in Sumner; their only pet in Sumner was a dog.
¶ 19 Stephanie testified that Jay Reeves was the first person she told about the abuse. She
explained that she never told her mother because she was afraid that her mother would be angry
at her. She noted that her mother got angry at her often. Stephanie further testified that most of
the time she liked her stepfather because he played games with her and was nice to her.
¶ 20 The State did not call the investigating officer to testify. The parties stipulated that Dr.
Rachel Winters performed a sexual abuse examination of Stephanie, and that if called to testify,
Dr. Winters would state that she found no physical evidence of abuse. The defendant called three
witnesses, all of whom were individuals the family had lived with at some point during their
many moves. All three witnesses testified that the defendant had a good relationship with
Stephanie and that they never witnessed any incidents of abuse. The defendant testified on his
own behalf. He, too, testified that he had a good relationship with Stephanie. He denied that he
ever sexually abused his stepdaughter. He testified that on the morning in question, Joseph Sr.
stayed home in the trailer while Tonya and Ashley took the baby to the hospital. He further
testified that he was rarely alone with Stephanie in any of the places they lived, although he also
testified that he was able to stay home and care for her when he was laid off from a job.
According to the defendant, the family did not live in a trailer when they lived in Hammond.
Instead, they lived in a house with his aunt and her fiancé. The defendant confirmed, however,
that there were turtles in the bedroom he shared with Tonya at the house in Hammond.
¶ 21 During deliberations, the jury asked to view the video recording of the forensic interview
again. The recording was sent to the jury with no objection. The jury returned a verdict of guilty,
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and the court subsequently sentenced the defendant to 12 years in prison. The defendant filed a
motion to reconsider his sentence and a motion for a judgment notwithstanding the verdict or a
new trial. The court denied both motions. This appeal followed.
¶ 22 The defendant’s first argument concerns jury instructions. In relevant part, the jury was
instructed that “The information states that the offense charged was committed on or about
January 30, 2014. If you find the offense charged was committed, the State is not required to
prove that it was committed on the particular date charged.” Defense counsel did not object to
this instruction. She also did not request that the jury be instructed that it must find that the
offense was committed within the State of Illinois. On appeal, the defendant argues that these
instructions allowed jurors to find the defendant guilty based on the evidence of conduct that
occurred in Indiana. He argues that, as such, the court erred in giving these instructions and that
counsel was ineffective for failing to either object to the instruction concerning the timing of the
offense or request an instruction on geographic jurisdiction. We disagree.
¶ 23 Jury instructions serve the important purpose of conveying to jurors “ ‘the legal rules
applicable to the evidence presented at trial.’ ” People v. Rogers, 2012 IL App (1st) 102031, ¶ 61
(quoting People v. Mohr, 228 Ill. 2d 53, 65 (2008)). We will not reverse a trial court’s decision
on which instructions to give absent an abuse of the court’s discretion. People v. Gilliam, 2013
IL App (1st) 113104, ¶ 41. On appeal, we must consider all of the instructions given and
determine whether those instructions “ ‘fully and fairly announce the law applicable to the
theories of the State and the defense.’ ” Rogers, 2012 IL App (1st) 102031, ¶ 61 (quoting Mohr,
228 Ill. 2d at 65). A court abuses its discretion if it gives instructions that do not accurately
convey the applicable law or are not clear enough to avoid confusing or misleading jurors. Id.
Significantly for purposes of this appeal, a court abuses its discretion if it gives instructions that,
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due to their lack of clarity, relieve the State of its burden of proving any element of the charge
beyond a reasonable doubt. Id. ¶ 63.
¶ 24 Criminal jurisdiction—i.e., the fact that the offense charged took place wholly or partly
within Illinois—is an essential element that must be proven beyond a reasonable doubt along
with all of the elements of the specific offense charged. Gilliam, 2013 IL App (1st) 113104, ¶ 34.
Thus, if the location of the criminal conduct at issue is unclear, it is necessary for the trial court
to instruct jurors that they must find that the crime was committed at least partly within the state.
See People v. Ogunsola, 87 Ill. 2d 216, 222 (1981) (holding that fundamental fairness requires
that a jury be instructed on all of the elements it must find beyond a reasonable doubt); People v.
Sims, 244 Ill. App. 3d 966, 1006 (1993) (noting that the jury was instructed that it must find that
the offense took place in Madison County, Illinois, in an appeal challenging the sufficiency of
the evidence to support that finding). However, where the location is not unclear, the trial court
has no obligation “to sua sponte issue an instruction on the issue of geographic jurisdiction.”
Gilliam, 2013 IL App (1st) 113104, ¶ 39.
¶ 25 Here, as noted, counsel did not request an instruction on the question of geographic
jurisdiction. The defendant argues that her failure to do so constituted ineffective assistance of
counsel. This is so, he contends, because the jury heard evidence that similar conduct occurred in
both states, thereby making it possible for jurors to find him guilty even if they were only
convinced beyond a reasonable doubt that the conduct in Indiana occurred. He argues that the
problem was magnified by counsel’s failure to object to an instruction telling jurors that they
could find the defendant guilty if they found that the charged conduct did not occur on the date
specified in the charge. He points out that there was no evidence of abuse occurring in Illinois on
any other date. We are not persuaded.
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¶ 26 Claims of ineffective assistance of counsel are evaluated under the test established by the
United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). To prevail on a
claim of ineffective assistance of counsel, a defendant must demonstrate both that counsel’s
performance was deficient and that the defendant was prejudiced as a result. People v. Makiel,
358 Ill. App. 3d 102, 105-06 (2005). To demonstrate deficient performance, the defendant must
show that counsel’s representation fell below an objective standard of reasonableness. Id. at 105.
To demonstrate prejudice, he must show there is reasonable probability that he would have been
acquitted if not for the deficiencies in counsel’s performance. Id. at 105-06 (citing Strickland,
466 U.S. at 694). A “reasonable probability” is a probability sufficient to undermine confidence
in the outcome of the trial. People v. Manning, 241 Ill. 2d 319, 327-28 (2011). For the reasons
that follow, we do not believe the defendant can make either of these showings in this case.
¶ 27 We find the First District’s decision in Gilliam instructive. There, the defendant was
convicted on four charges involving sexual abuse of his two stepdaughters. Gilliam, 2013 IL App
(1st) 113104, ¶ 1. As in this case, the defendant and his wife and stepdaughters lived in multiple
locations in Illinois and Indiana, and there was evidence that abuse occurred in both states. Id.
¶¶ 5-26. The defendant appealed his convictions, arguing that the trial court’s failure to instruct
jurors that the State was required to prove that the alleged abuse took place in Illinois constituted
plain error. Id. ¶ 31.
¶ 28 On appeal, the First District first found that the State presented sufficient evidence to
prove beyond a reasonable doubt that the offenses charged took place in Illinois. Id. ¶¶ 35-37.
The court then directly addressed the defendant’s contention that because the jury was not
instructed on the element of geographic jurisdiction, it could have found the defendant guilty of
some of the charges based solely on conduct that occurred in Indiana. Id. ¶ 38. In rejecting this
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claim, the court emphasized that the charges were based on two specific incidents, one involving
foot-to-vagina contact between the defendant and both of his stepdaughters, the other involving
penis-to-vagina contact between the defendant and both girls. Id. ¶ 39. The court explained that
because both girls testified that these two specific incidents took place when they lived in
apartments in Chicago, “[t]he location element was not unclear.” Id. As such, the court
concluded, “the trial court was not bound to sua sponte issue an instruction on the issue of
geographic jurisdiction.” Id. The appellate court went on to hold that the trial court did not err in
declining to instruct the jury on geographic jurisdiction. It therefore found it unnecessary to
consider whether the claimed error rose to the level of plain error. Id. ¶ 44.
¶ 29 The defendant argues that Gilliam was wrongly decided because sufficiency of the
evidence is the wrong standard. He correctly notes that if the evidence is not sufficient to prove
Illinois jurisdiction beyond a reasonable doubt, the jury instruction issue becomes irrelevant
because the proper remedy is outright reversal. See People v. Moreland, 292 Ill. App. 3d 616,
619 (1997). He argues that even in cases where the evidence is sufficient to prove jurisdiction
beyond a reasonable doubt, the jury must be instructed on the issue if the evidence raises a
question about the location of the conduct at issue.
¶ 30 We note that although the Gilliam court did focus most of its discussion on the
sufficiency of the evidence, as the defendant points out (see Gilliam, 2013 IL App (1st) 113104,
¶¶ 35-37, 43), the court also found that the element of location was not in question (see id. ¶ 39).
In addition, as the defendant himself acknowledges, the Gilliam court implicitly recognized that
if the location of the conduct is in question, an instruction on geographic jurisdiction is needed.
See id. ¶ 39 (holding that a court is not required to provide an instruction on geographic
jurisdiction if the location of the criminal conduct at issue is clear). We therefore do not read
12
Gilliam as holding that an instruction on geographic jurisdiction is never required as long as
there is sufficient evidence to prove beyond a reasonable doubt that the offense was committed at
least partly in Illinois. We agree with the defendant that the question is whether, under the facts
and circumstances of the case, an instruction on geographic jurisdiction is necessary to avoid the
possibility of a conviction based on conduct that did not occur within the state. We turn now to
that question.
¶ 31 Here, as in Gilliam, the charge was based on a specific incident. It specifically alleged
that the defendant digitally penetrated Stephanie’s vagina and forced her to touch his penis on or
about January 30, 2014. As discussed previously, the evidence of abuse at trial consisted of
Stephanie’s statement to Jay Reeves, her video-recorded forensic interview with Teresa Miller,
and her testimony at trial. In both her statement to Reeves and her interview with Miller,
Stephanie gave detailed accounts of the specific incident described in the charge—an incident
that occurred in Illinois. She told Reeves about the incident the day it happened, and she told
Miller about the incident the following day. There was no reason for jurors to believe that
Stephanie was confused about where this incident took place when she described it to Reeves
and Miller.
¶ 32 At trial, Stephanie likewise described the incident that occurred in Illinois in detail.
Although the trial took place 10 months after the incident, the incident occurred on a day that
likely stood out in her memory because it was the day her baby cousin suffered life-threatening
injuries. In questioning Stephanie, both defense counsel and the State’s attorney specifically
called her attention to the day the baby was injured. In addition, as the State points out, Stephanie
knew the difference between the places she lived (even though she described the Hammond
residence as a trailer, rather than a house)—she testified that in Hammond, the family had pet
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turtles, while in Sumner, their only pet was a dog. Thus, there was no reason for jurors to find
that the incident Stephanie described in her testimony took place anywhere other than Sumner,
Illinois.
¶ 33 Although there was some evidence of other conduct, under the circumstances of this case,
there was no reason for jurors to have believed that any other conduct was at issue. Stephanie
told both Reeves and Miller that similar incidents also took place in Indiana, but she did not
discuss any particular incident with either of them. At trial, however, Stephanie did describe an
additional incident that took place in Indiana. She gave specific details about the circumstances
leading up to the abuse that took place that day, but all she said about the abuse itself was that
the defendant “did the private thing.” Thus, the evidence at trial was clearly focused on the
Illinois incident. It is also worth noting that both attorneys told jurors during their opening
statements that the events of January 30, 2014, were the events at issue in the case. In light of
this, we believe it was clear to jurors that the events at issue were the events that took place that
morning in Sumner, Illinois. An instruction telling them so was not necessary.
¶ 34 We must also consider the potential impact of the instruction telling jurors that the
offense was committed “on or about January 30, 2014,” but that the State was not required to
prove that the offense took place on that date. As we have discussed, the defendant argues that
this instruction could have led jurors to believe that they could find the defendant guilty if they
believed Stephanie’s account of the incident that took place in Hammond, Indiana, even if they
did not believe her account of the incident in Sumner, Illinois.
¶ 35 The State, by contrast, argues that the instruction was proper and that the “on or about”
language actually helped clarify for jurors that the events at issue were those that took place in
the trailer in Sumner. As the State points out, the incident took place overnight. Stephanie
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testified that she did not know what time it was when the defendant woke her up, and the
defendant testified that he did not know what time it was when Ashley and Tonya left to take
baby Jacob to the hospital. Thus, the State contends, the instruction was necessary and proper
because without it, jurors could have found that the State failed to prove beyond a reasonable
doubt that the offense occurred after midnight—on January 30—rather than before midnight—on
January 29. See People v. Whitaker, 263 Ill. App. 3d 92, 100 (1994). The State further contends
that reasonable jurors, applying common sense, could conclude that conduct occurring before
midnight on January 29 was included in a charge alleging that a crime was committed “on or
about January 30,” but that common sense would preclude them from finding that conduct
occurring at least several weeks earlier, when the family lived in Indiana, was likewise included.
As such, the State contends, the phrase “on or about” provided additional clarity for jurors about
which conduct was at issue.
¶ 36 We need not decide whether we would accept the State’s assertion about the benefit of
the “on or about” language if the location of the conduct at issue were not otherwise sufficiently
clear. For the reasons we have already discussed, we believe the location of the conduct at issue
in this case was not in doubt. Thus, we do not believe jurors were misled by the instruction.
Moreover, we find that the instructions as a whole did not allow the jury to return a guilty verdict
based on conduct that occurred in Indiana. We therefore conclude that counsel provided effective
assistance.
¶ 37 The defendant’s next argument concerns the court’s handling of the Zehr principles
during voir dire. Illinois Supreme Court Rule 431(b) requires courts to question prospective
jurors as to their understanding and acceptance of four principles of law known as the Zehr
principles. The four principles are as follows: (1) the defendant is presumed to be innocent of the
15
charge against him; (2) the defendant is not required to offer any evidence on his behalf; (3) the
State must prove the defendant guilty beyond a reasonable doubt; and (4) jurors may not draw
any negative inferences if the defendant chooses not to testify. People v. Thompson, 238 Ill. 2d
598, 606 (2010) (quoting Ill. S. Ct. R. 431(b) (eff. May 1, 2007)); see also Zehr, 103 Ill. 2d at
477. Prospective jurors may be questioned individually or in a group. However, every juror must
have the opportunity to respond to questions about whether they both understand and accept each
of these four principles. Thompson, 238 Ill. 2d at 607.
¶ 38 The defendant contends that in this case, the court ran afoul of these requirements in two
ways. First, he argues that the court erred by commingling the Zehr principles rather than clearly
addressing each principle separately. Second, he contends that the court’s method of questioning
jurors did not allow all of the jurors to tell the court whether they understood and accepted the
principles. He points out that although some prospective jurors were specifically asked whether
they understood and accepted the principles, others were simply called on by name.
¶ 39 The defendant acknowledges that he forfeited review of this issue by failing to object
during voir dire. See People v. Belknap, 2014 IL 117094, ¶ 47. He asks us to review his claim
under the plain error doctrine. Under that doctrine, we may consider arguments that have been
forfeited if (1) “the evidence [was] so closely balanced that the error alone threatened to tip the
scales of justice against the defendant” or (2) the error was serious enough to affect the fairness
of the defendant’s trial and undermine “the integrity of the judicial process.” People v.
Piatkowski, 225 Ill. 2d 551, 565 (2007). Our supreme court has held that errors in questioning
jurors about the Zehr principles are cognizable only under the closely-balanced prong of plain
error analysis. People v. Sebby, 2017 IL 119445, ¶ 52; Thompson, 238 Ill. 2d at 615. The court
explained that although the questioning required by Zehr and Rule 431(b) was designed “to help
16
ensure a fair and impartial jury” (Thompson, 238 Ill. 2d at 609), a court’s failure to fully comply
“does not automatically result in a biased jury” (id. at 610). Thus, failure to comply with Rule
431(b) does not automatically “render a trial fundamentally unfair.” Id. at 611.
¶ 40 The defendant contends that plain error review is appropriate in this case because the
evidence was closely balanced. Before considering this question, however, we must first
consider whether there was any error at all. People v. Ware, 407 Ill. App. 3d 315, 354 (2011).
The State concedes that the court erred in commingling some of the Zehr principles, but the State
argues that the evidence was not closely balanced. We agree that the court erred. However,
because we find that the evidence was not so closely balanced that the error threatened to tip the
scales against the defendant, we decline to excuse the defendant’s forfeiture under the plain error
doctrine.
¶ 41 Prospective jurors were questioned in three panels. The court began its discussion of the
Zehr principles with the first panel by telling them that the defendant was presumed to be
innocent of the charge against him. The court asked the first prospective juror if she understood
that principle and then asked if she could follow that rule. The court questioned the second
prospective juror in the same manner. The court called the next four jurors by name, stating to
each of them, “Same question.” The court then repeated the proposition that the defendant is
presumed to be innocent and asked the next juror if he understood that principle and if he could
follow it. The remaining jurors on the panel were simply called upon by name.
¶ 42 The defendant acknowledges that the court correctly articulated the first Zehr principle to
this panel, but he argues that the court’s method of questioning did not give most of the jurors an
opportunity to tell the court whether they understood and accepted the principle. We do not agree
that the court was required to repeat the full question to each juror. There are no particular words
17
or phrases that must be used to comply with the requirements of Zehr and Rule 431(b). Ware,
407 Ill. App. 3d at 356. What is important is that the court must give all of the jurors the
opportunity to tell the court whether they understand and accept each principle. Thompson, 238
Ill. 2d at 607. The questioning we have just described gave jurors on the first panel that
opportunity because it was clear that the court was asking them to answer the same question it
asked the first two jurors—that is, whether they both understood and accepted the first principle.
However, as we will explain, we find that not all of the jurors were given an opportunity to tell
the court whether they both understood and accepted all four principles for different reasons.
¶ 43 After discussing the first Zehr principle with the first panel, the court turned its attention
to the remaining principles. The court asked the first juror on the panel, “Do you understand and
accept that the defendant is presumed innocent and does not have to offer any evidence in his
own behalf, but must be proven guilty beyond a reasonable doubt?” The court then asked if she
could follow that rule. The court questioned most of the remaining jurors on the panel simply by
calling on them by name.
¶ 44 As both parties point out, the court’s second question commingled the first, second, and
third Zehr principles. The court discussed these three principles with the second and third panels
in a similar manner. Although the State concedes this was error, we note that commingling of the
Zehr principles is not a per se violation of Rule 431. See, e.g., Ware, 407 Ill. App. 3d at 356;
People v. Davis, 405 Ill. App. 3d 585, 590 (2010). However, the court must give jurors an
opportunity to state whether they understand and accept each principle; the court may not merely
make “ ‘a broad statement of the applicable law followed by a general question concerning the
juror’s willingness to follow the law.’ ” Thompson, 238 Ill. 2d at 607 (quoting Ill. S. Ct. R. 431,
Committee Comments). The appellate courts in both Ware and Davis found that trial courts
18
complied with this requirement even though they commingled some of the Zehr principles.
Ware, 407 Ill. App. 3d at 355-56; Davis, 405 Ill. App. 3d at 590. In Ware, the trial court “paused
every few sentences” while explaining the principles and questioned jurors, thereby allowing
jurors “to focus on each principle explained” while responding to questioning. Ware, 407 Ill.
App. 3d at 356. Similarly, the trial court in Davis combined its explanation of two of the Zehr
principles, telling jurors that a defendant is not required to testify and is not required to call
witnesses or present any evidence to prove his innocence. Davis, 405 Ill. App. 3d at 589.
However, the trial court asked jurors two distinct questions addressing each of the two principles
individually, which the appellate court found sufficient. Id. at 589-90.
¶ 45 In this case, by contrast, the court did not ask jurors questions that addressed all three
commingled principles individually. The court did, however, provide separate explanations of
two of those principles, followed by questioning. As we have discussed, the court previously
addressed the first Zehr principle—the presumption of innocence—on its own. The court also
went on to discuss the third Zehr principle alone. Addressing the entire panel, the court asked as
follows:
“If, at the close of all the evidence and after you have heard the arguments of counsel,
you believe that the State has failed to prove [the] defendant guilty beyond a reasonable
doubt, would you, under those circumstances, return a verdict of not guilty?”
The court called on the first juror by name. After she replied, “Yes,” the court repeated the
question and called on the remaining jurors by name only. Although the court’s question might
be construed as asking whether jurors accepted the principle, the court did not ask if jurors
understood the principle. See People v. Mueller, 2015 IL App (5th) 130013, ¶ 23. In addition,
because the court never separately addressed the principle that a defendant need not present
19
evidence in his own defense, none of the jurors were questioned as to their understanding and
acceptance of that principle.
¶ 46 The court then addressed the fourth Zehr principle, explaining to the panel that the
defendant was not required to testify and that the jury may not hold it against him if he chose not
to do so. The court asked the first juror if she understood that principle and whether she could
apply the principle if chosen to serve on the jury. The court called on the remaining jurors by
name only. One of the last jurors to be called indicated that he was not sure. The court asked the
next juror if he could “follow that” and then called on the final juror on the panel by name only.
Although most of the jurors on the first panel were given an opportunity to tell the court whether
they both understood and accepted this principle, the last two jurors were only asked if they
could “follow” the principle; they were not asked if they understood it.
¶ 47 The court’s questioning of the second and third panels followed a similar pattern. There
were a few differences worth noting, however. For example, after explaining to the second panel
that a defendant is presumed innocent of the charges against him (the first Zehr principle), the
court asked the first juror whether he understood and accepted this principle and whether he
thought he could abide by it if chosen to serve on the jury. The court then addressed the next
several jurors, either by stating “Same question” or simply by calling their names. The court
asked one of the jurors, “Do you understand the question?” The court did not ask the juror
whether he accepted the principle, however. The court called on the remaining jurors by name.
Those jurors may reasonably have understood that they, too, were being asked only whether they
understood that the defendant was presumed innocent and not whether they also accepted this
principle.
20
¶ 48 In addressing the second panel, the court once again commingled the first, second, and
third principles. The court once again went on to ask the prospective jurors whether they would
return a verdict of not guilty if they did not believe the State had proven the defendant guilty
beyond a reasonable doubt (the third Zehr principle). This time, the court also asked the first
juror if he understood the question. However, the court repeated the original question to the next
two jurors without also asking if they understood the question. The court went on to ask the
remaining jurors to respond, either by saying “Same question” or by calling upon them by name.
Thus, only the first panel member was clearly asked whether he understood that the defendant
had to be proven guilty beyond a reasonable doubt.
¶ 49 In discussing the fourth Zehr principle with the second panel, the court asked the first
juror, “If the defendant, James Choate, does not testify in his own behalf, would you hold that
against him?” The court called on the remaining jurors by name. Thus, the court did not ask any
of the jurors whether they understood this principle.
¶ 50 The court’s first question to the third panel commingled the first and third Zehr
principles. The court asked the first juror if he understood and accepted that the defendant is
“presumed innocent unless the charge is proven against him beyond a reasonable doubt” and
then called on the remaining jurors by name. Jurors on this panel were never asked questions
focused solely on the understanding and acceptance of the presumption of innocence. The court
once again commingled the first, second, and third principles, explaining them to the third panel
much the way it explained them to the first two panels. As it did with the first two panels, the
court asked the third panel, as a group, if they would return a verdict of not guilty if they found
that the State had not proven the defendant’s guilt beyond a reasonable doubt. The court asked
the first juror if he understood the question or had “any questions about that” and then called on
21
the remaining jurors by name. The court asked if jurors on the third panel would hold it against
the defendant if he did not testify (the fourth Zehr principle) but did not ask jurors whether they
understood the principle.
¶ 51 Because not all jurors were clearly asked whether they both understood and accepted
each of the Zehr principles, we agree that error occurred. The question, then, is whether we may
consider this error under the plain error doctrine. As we noted earlier, the defendant contends
that plain error review is appropriate because the evidence in this case is closely balanced. We do
not agree.
¶ 52 A defendant seeking plain error review on the basis of closely balanced evidence has the
burden of persuading this court that the evidence is closely balanced enough to warrant such
review. Thompson, 238 Ill. 2d at 613; Piatkowski, 225 Ill. 2d at 567. This is a different question
from whether the evidence is sufficient to support a conviction beyond a reasonable doubt.
Piatkowski, 225 Ill. 2d at 566. The question is whether the evidence is so closely balanced that
“the error alone severely threatened to tip the scales of justice.” Sebby, 2017 IL 119445, ¶ 51.
¶ 53 Answering that question requires us to engage in a commonsense evaluation of the
evidence. Id. ¶ 53; Belknap, 2014 IL 117094, ¶ 50. We must consider the totality of the evidence
in the case. Sebby, 2017 IL 119445, ¶ 53. In evaluating the strength of that evidence, we must
consider both “the quantum and quality” of the evidence. See Piatkowski, 225 Ill. 2d at 571.
Applying these principles to the case at hand, we are not convinced that the evidence in this case
was so closely balanced that the court’s error threatened to tip the balance against the defendant.
¶ 54 The defendant argues that the evidence was closely balanced because the case came
down to a contest of credibility between the defendant and Stephanie. He argues that Stephanie’s
account should not be given more weight than his simply because it was repeated through the
22
testimony of Jay Reeves and the recording of the forensic interview with Teresa Miller. See
People v. Boling, 2014 IL App (4th) 120634, ¶ 131. We are not persuaded.
¶ 55 Certain types of out-of-court statements by child witnesses in sexual abuse cases, such as
the statements Stephanie made to Reeves and Miller in this case, are admissible at trial precisely
because they constitute “reliable, corroborating evidence.” See People v. Bowen, 183 Ill. 2d 103,
114 (1998) (citing 725 ILCS 5/115-10 (West 1994)). Stephanie’s statement to Reeves was an
unprompted spontaneous outcry. Courts have found such statements to be particularly reliable,
especially when they are consistent with other statements made by the child. See People v.
Garcia, 2012 IL App (1st) 103590, ¶¶ 97-98. Courts likewise have recognized the reliability of
recorded statements made shortly after the original outcry, such as Stephanie’s interview with
Miller. See Bowen, 183 Ill. 2d at 115-16.
¶ 56 Here, Stephanie’s statements to Reeves and Miller were consistent with each other and
with Stephanie’s later trial testimony. Stephanie used age-appropriate language in describing the
defendant’s behavior, which is another indicator of reliability. See Garcia, 2012 IL App (1st)
103590, ¶¶ 97, 99. Stephanie’s statement to Reeves was completely unprompted; it was
Stephanie, not Reeves, who initiated the discussion. Contrary to the defendant’s contention,
Stephanie’s statement to Miller alleging that the defendant put his fingers inside her vagina was
also unprompted. Although Miller asked Stephanie earlier in the interview whether the defendant
had touched parts of her body other than her hand, Miller never asked about penetration.
Moreover, when Stephanie volunteered that information, it was not in response to a question
about inappropriate touching; it was in response to a question about what the defendant said to
her while he was making her touch his penis. The spontaneity of these statements is another
indicator of reliability. See id. ¶ 99.
23
¶ 57 One further indication of the reliability of Stephanie’s statements is that she had no
motive to lie. See id. ¶ 97. The defendant argues that Stephanie had a motive to make up a story
about him so that she could be sent to live with her father instead of her mother. That way, she
would no longer have to move around so much, something she testified she did not like doing.
We do not find it plausible to believe that an eight-year-old child could think through the
multiple layers of cause-and-effect necessary to contrive such a plan, however. Moreover, the
evidence showed that Stephanie liked having the defendant in her life; she just wanted the
incidents of sexual abuse to stop.
¶ 58 It is also worth noting that both statements were admitted into evidence only after the
trial court held a hearing to determine whether they had sufficient indicia of reliability. See 725
ILCS 5/115-10(b)(1) (West 2012). We find that Stephanie’s statements constituted strong
corroborating evidence for her testimony.
¶ 59 In addition, when asked at trial to describe what the defendant’s penis felt like, Stephanie
used very child-like language to accurately describe an erection, masturbation, and ejaculations,
things she clearly would have had no understanding of. This lent additional credence to her
testimony.
¶ 60 This does not end our inquiry, and we emphasize that our holding should not be read to
suggest that the evidence may never be closely balanced in cases where a child’s allegations of
abuse are corroborated by out-of-court statements that have been found to be reliable. As noted
earlier, we must consider both the quantum and quality of the evidence as a whole in making that
determination. See Sebby, 2017 IL 119445, ¶ 53; Piatkowski, 225 Ill. 2d at 571. Here, most of
the defendant’s evidence did not contradict Stephanie’s statements. The defendant and his
witnesses confirmed that the family moved many times and that Stephanie had a good
24
relationship with the defendant. Although the defense witnesses all stated that they never
witnessed abuse, Stephanie stated that the abuse only occurred when no one else was present,
something which makes sense in light of the nature of her allegations. The only evidence that
directly contradicted Stephanie’s account was the defendant’s own assertion that he did not
molest her. While most of the defendant’s testimony was not inherently implausible or internally
inconsistent (see Boling, 2014 IL App (4th) 120634, ¶ 131), his claim that he was rarely alone
with his stepdaughter was not particularly credible in light of his contrary testimony that he was
able to be home to care for her when he was laid off from work.
¶ 61 Finally, we reiterate that the question before us is not merely whether the evidence was
close, but whether it was so closely balanced that “the error alone severely threatened to tip the
scales of justice” against the defendant. Sebby, 2017 IL 119445, ¶ 51. Put another way, the
question is whether “ ‘the jury’s guilty verdict may have resulted from the error and not the
evidence.’ ” Boling, 2014 IL App (4th) 120634, ¶ 130 (quoting People v. Herron, 215 Ill. 2d
167, 178 (2005)). In light of the strength of the State’s evidence and the weakness in the one
piece of evidence that contradicts it, we cannot find that the evidence in this case is so closely
balanced that the court’s error during voir dire could have tipped the balance against the
defendant or led to the guilty verdict in this case. We also note that the potential impact of the
court’s error was minimized by the fact that the defendant did present evidence and testify on his
own behalf. We therefore decline to consider his claim under the plain error doctrine.
¶ 62 For the foregoing reasons, we affirm the defendant’s conviction.
¶ 63 Affirmed.
25
2018 IL App (5th) 150087
NO. 5-15-0087
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Lawrence County.
)
v. ) No. 14-CF-20
)
JAMES E. CHOATE III, ) Honorable
) Robert M. Hopkins,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
Rule 23 Order Filed: September 19, 2018
Motion to Publish Granted: October 2, 2018
Opinion Filed: October 2, 2018
______________________________________________________________________________
Justices: Honorable Melissa A. Chapman, J.
Honorable Judy L. Cates, J., and
Honorable James R. Moore, J.,
Concur
______________________________________________________________________________
Attorneys Michael J. Pelletier, State Appellate Defender, Ellen J. Curry, Deputy
for Defender, Eun Sun Nam, Assistant Appellate Defender, Office of the
Appellant State Appellate Defender, Fifth Judicial District, 909 Water Tower Circle,
Mt. Vernon, IL 62864
______________________________________________________________________________
Attorneys Hon. Michael M. Strange, State’s Attorney, Lawrence County Courthouse,
for Lawrenceville, IL 62439; Patrick Delfino, Director, David J. Robinson,
Appellee Acting Deputy Director, Sharon Shanahan, Staff Attorney, Office of the
State’s Attorneys Appellate Prosecutor, Fifth District Office, 730 E.
Illinois Highway 15, Suite 2, Mt. Vernon, IL 62864
______________________________________________________________________________