People v. Myles

2020 IL App (4th) 180652 FILED
December 21, 2020
NO. 4-18-0652 Carla Bender
4th District Appellate
IN THE APPELLATE COURT Court, IL

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Livingston County
DENNIS MYLES, ) No. 17CF172
Defendant-Appellant. )
) Honorable
) Jennifer H. Bauknecht,
) Judge Presiding.

JUSTICE HOLDER WHITE delivered the judgment of the court with opinion.
Presiding Justice Steigmann and Justice DeArmond concurred in the judgment
and opinion.

OPINION
¶1 In May 2017, the State charged defendant, Dennis Myles, with three counts of

aggravated criminal sexual abuse. In March 2018, the trial court found defendant guilty beyond a

reasonable doubt of all three charges. In September 2018, the court sentenced defendant to 36

months’ probation and a term of 180 days’ imprisonment.

¶2 Defendant appeals, arguing (1) he received ineffective assistance of counsel

where counsel stipulated to the admission of recordings of El. C.’s and Em. C.’s statements at the

Children’s Advocacy Center (CAC) and (2) his constitutional right to be present at all critical

stages of his trial was violated when the trial court privately viewed the recordings. For the

following reasons, we affirm the trial court’s judgment.

¶3 I. BACKGROUND
¶4 In May 2017, the State charged defendant with three counts of aggravated

criminal sexual abuse, a Class 2 felony (720 ILCS 5/11-1.60(c)(1)(i), (g) (West 2016)). The

charges alleged defendant was 17 years of age or older and committed an act of sexual conduct

with El. C. and Em. C., who were under 13 years of age, in that defendant knowingly rubbed his

hand on or about El. C.’s vagina (count I), Em. C.’s vagina (count II), and Em. C.’s breasts

(count III).

¶5 A. Motion in Limine

¶6 In October 2017, the State filed a motion in limine to admit hearsay evidence

pursuant to section 115-10 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-

10 (West 2016)). Specifically, the State sought to present hearsay evidence in the form of out-of-

court statements the minors made to their mother, J.C., and recorded statements the minors made

to Jo Sipes at the Livingston County CAC. Prior to trial, the State informed the court it had a

stipulation to present to the court regarding the recorded statements made at the CAC. Defense

counsel indicated he agreed to the stipulation. The parties filed a written stipulation that Jo Sipes

was “an experienced and certified forensic interviewer” and had “been trained in forming

questions in a manner which does not elicit a certain response.” Further, Sipes would testify the

recordings of the forensic interviews she conducted accurately depicted the interviews and were

complete recordings with no errors. Finally, the stipulation stated the recordings of the

interviews “are admissible under 725 ILCS 5/115-10 if the requirements of 725 ILCS 5/115-

10(2) are met.”

¶7 B. Bench Trial

¶8 In November 2017, defendant’s bench trial began. Over the course of three

nonconsecutive days, the court heard the following evidence.

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¶9 1. Em. C.

¶ 10 Em. C. testified she was nine years old and in the fourth grade. Em. C. identified

defendant as her “Grandpa Dennis.” According to Em. C., the previous year defendant would

watch her and her younger sister El. C. “a couple times a month” while her mother worked. At

the beginning of the 2016 school year, there was an incident with defendant that made Em. C.

uncomfortable. Em. C. testified she was at home with defendant and El. C. Em. C. and defendant

were sitting on the couch watching television, and Em. C. asked defendant to scratch her back.

Em. C. testified defendant began scratching her back under her shirt and then moved his hands

forward until he was scratching her “ninnies.” Em. C. testified she referred to her breasts as

“ninnies.” Em. C. testified she also sometimes referred to her breasts as “mosquito bites”

because of something funny El. C. once said. According to Em. C., defendant tickled her

“ninnies” with both hands for about one minute.

¶ 11 Em. C. testified a second incident occurred approximately two weeks later, again

while she and defendant sat on the couch watching television. Em. C. stated, “I was kind of

laying with my feet up; and he was sitting next to me; and he sort of like moved his hand over

my private.” Em. C. testified she referred to her vagina as her “private.” According to Em. C.,

defendant cupped his hand over her vagina and held his hand there for approximately five

minutes. Em. C. testified she did not tell anyone about the incidents right away because she was

scared. Em. C. usually referred to her vagina as her “froggy,” but she used “private” while

testifying because she was embarrassed.

¶ 12 Toward the end of third grade, Em. C.’s mother asked her if anybody had ever

touched her in a way that made her uncomfortable. Em. C. told her mother about the two

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incidents with defendant. Em. C. talked about the incidents with her mother before Sipes

interviewed her. All her mother told her was “to say the truth.”

¶ 13 2. El. C.

¶ 14 El. C. testified she was five years old and attended kindergarten. According to El.

C., when her mother worked, various people would babysit her and Em. C. El. C. stated there

was an incident with defendant that made her uncomfortable. El. C. stated she, Em. C., and

defendant sat on the couch watching the movie “Minions.” According to El. C., defendant sat

between the two girls. El. C. testified she was watching the movie and defendant began rubbing

her “private spot,” meaning her vagina. Defendant rubbed El. C.’s vagina over her clothes in a

circle with one hand. El. C. testified defendant did not rub her stomach.

¶ 15 El. C. testified she did not remember what time of year the incident occurred, but

she thought it happened between Christmas and Easter. El. C. testified defendant never put his

arm around her shoulders while they watched television. El. C. never asked defendant to tuck her

into bed at night. According to El. C., she told her mother about the incident the following

morning.

¶ 16 3. CAC Interviews

¶ 17 Following Em. C.’s and El. C.’s testimony, the State moved to admit the video

recorded interviews at CAC. The trial court asked if it should review the recordings before the

next hearing, and the State indicated the court should do so. The court asked if there was any

objection to that, and defense counsel responded, “No, Your Honor.”

¶ 18 At the time of the recorded interview, El. C. was four years old. Following

general questions about El. C.’s family and school, Sipes asked, “Do you know what you’re here

to talk about today?” El. C. responded affirmatively, and Sipes said, “Tell me what you’re here

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to talk about.” El. C. responded, “One day, my grandpa, he was rubbing my private.” El. C.

indicated her grandfather used his hand on top of her clothes. El. C. said the incident occurred on

the couch at her house while her mother was at work. El. C. sat in between defendant and Em. C.

¶ 19 Sipes asked El. C. to describe “how Grandpa did that,” and El. C. responded, “He

just did it.” El. C. marked a diagram when Sipes asked her to show “private part” on a picture.

Although El. C. could not remember what day the incident occurred, she agreed she was four

years old when the incident occurred. El. C. said her grandfather used one hand and his other

hand was on the couch. El. C. stated she told him to please stop and he stopped when she got up.

El. C. told her mother about the incident the following morning.

¶ 20 At the time of the recorded interview, Em. C. was nine years old. After some

general questions about family and hobbies, Em. C. acknowledged she was not in trouble and

mentioned talking with her mother. Sipes asked what Em. C.’s mother said about the interview.

Em. C. responded that she needed to tell the truth and say everything that she told her mother.

Em. C. denied being uncomfortable. Sipes asked Em. C. to tell her “what happened.”

¶ 21 Em. C. said she asked her grandfather to scratch her back while they were sitting

on the couch. Em. C. described how her grandfather moved forward to scratch her chest under

her shirt. Sipes asked Em. C. what she called that part of her body, and Em. C. responded

“mosquito bites” because they were little. Sipes asked if her grandfather was “scratching, or

something different,” and Em. C. responded the scratching turned into rubbing. Em. C. then

asked if she could go outside and left. Sipes asked Em. C. what her grandfather’s name was, and

Em. C. said, “Grandpa Dennis.”

¶ 22 Sipes asked if her grandfather had touched Em. C. anywhere else on her body,

and Em. C. motioned toward her vaginal area. Em. C. stated defendant touched her over her

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clothes and that was the first incident. Em. C. estimated the incident occurred near the beginning

of her third grade school year. Sipes asked if both incidents occurred last year, and Em. C.

responded affirmatively. Sipes asked about the touching of her “mosquito bites” and Em. C. said

that happened first because it was hotter outside. Em. C. later stated the touching of her “froggy”

was the first incident. Em. C. said defendant touched her vagina with one hand in a scratching or

rubbing motion. Em. C. explained she told her mother about the incidents because her mother

asked if anyone touched her.

¶ 23 4. J.C.

¶ 24 J.C. testified defendant was her stepfather. According to J.C., she worked

evenings and some days at a restaurant. A few times a month, defendant would watch her

daughters while J.C. worked. In April 2017, J.C. and El. C. were sitting on the couch watching

television. J.C. sat with her arm wrapped around El. C., and El. C. rubbed J.C.’s leg. J.C. testified

El. C. was an affectionate child and J.C. wore soft pajama pants that El. C. liked. According to

J.C., El. C. rubbed “closer and closer and touched [J.C.] in between [her] legs in [her] private

area.” J.C. testified she grabbed El. C.’s hand and said, “watch your hands. We don’t touch

people right there.”

¶ 25 According to J.C., El. C. got nervous, jumped off the couch, and crouched on the

other side of the ottoman. J.C. asked her what was wrong, and El. C. then ran to the front door

and all the way upstairs. J.C. testified this was an unusual reaction to her redirection. J.C.

followed El. C. upstairs and found her sitting in her closet with her knees pulled up to her chest,

her arms wrapped around her legs, and her head down. According to J.C., she got down to eye

level with El. C. and asked what was wrong. J.C. promised El. C. she could skip pre-

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kindergarten that day if she told J.C. what was going on. J.C. denied ever mentioning defendant

or asking El. C. if she had been touched inappropriately.

¶ 26 J.C. testified El. C. looked up and quietly said defendant “rubbed her froggy.” J.C.

stated her daughters referred to their vaginas as “froggy” or “private” and referred to their breasts

as “ninnies” or “mosquito bites.” El. C. indicated the incident occurred the night before while

watching the Minions movie. A few days later, J.C. sat Em. C. down and told her to feel free to

tell J.C. anything because J.C. did not want to keep secrets or have Em. C. feel uncomfortable

about telling her anything. J.C. denied telling Em. C. about El. C.’s disclosure prior to this

conversation. According to J.C., Em. C. told her about the incident where defendant began

scratching her back and moved his hands to rub and scratch her “ninnies.”

¶ 27 J.C. testified she asked Em. C. when and where the incident occurred. Em. C.

indicated it happened in the home where the family had resided for only a little over a year.

According to J.C., the girls had a good relationship with defendant and loved spending time with

him. J.C. also had a good relationship with defendant. J.C. told her mother, defendant’s wife,

about the incidents the girls described, and she was not supportive of the idea of going to the

police. J.C. took the girls to Florida to visit their father. J.C. testified, “So I just went to Florida

to let them [(Em. C. and El. C.)] spend some time with their dad after hearing about this and to

try to clear my head and figure out what I should do.” After returning from Florida, J.C. reported

the incidents to the police approximately one to two weeks after El. C. initially reported the

incident. According to J.C., her mother did not appear to believe the girls and did not support

reporting the incidents to the police.

¶ 28 5. Defendant

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¶ 29 Defendant testified he was Em. C.’s and El. C.’s stepgrandfather and he had a

great relationship with the girls. Defendant babysat the girls at their house on a fairly frequent

basis until the previous April. According to defendant, he frequently sat on the couch with the

girls playing video games or watching television. The girls would frequently be physically close

to defendant, and he would put his arms around them. Defendant testified Em. C. liked to have

her back scratched. Defendant stated, “Sometimes if it was just a quick itch she would sit next to

me and just scratch her back. She would life her shirt up. In other instances, she would lay next

to me; and she would be watching television. She liked to have the whole back scratched, more

like a back rub type of deal; and she would lay there. A couple of times she fell asleep on me

while I was doing it.”

¶ 30 Defendant testified he never participated in bathing or bedtime with the girls.

When asked if he ever touched the girls in the breast area or groin, defendant responded, “No. I

do not believe so.” Defendant denied intentionally touching them in those places. Defendant

stated he remembered the incidents the girls described. Defendant recalled babysitting the girls at

the beginning of the school year and sitting down with Em. C. on the couch. According to

defendant, Em. C. threw her leg over his lap and asked him to “squish” or massage her legs.

Defendant testified he massaged the whole length of Em. C.’s thigh but did not touch her

privates.

¶ 31 The second incident with Em. C. occurred when Em. C. asked defendant to

scratch her back and he reluctantly agreed to do so. El. C. came into the room and asked to have

her back scratched. El. C. jumped over the top of the couch and stepped on Em. C. Em. C. “came

back around, like raised her arm like she was going to push her sister away.” Defendant testified

his hand was inside her shirt and got stuck because he wore a lot of rings. Defendant yelled at El.

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C. for jumping on the couch and yelled at Em. C. because he did not want to scratch her back.

Em. C. gave defendant a strange look and left to see her friends.

¶ 32 The incident with El. C. occurred on April 2, 2017. Defendant sat on the couch

and helped El. C. find a cartoon to watch. Defendant testified, “So I asked [El. C.] if she wanted

some help so I grabbed the remote; and she crawls up into my arm; and I grab my arm like this;

and we find the cartoon; and we start the cartoon.” According to defendant, El. C. told him she

loved him and he “rubbed her where [his] hand was.”

¶ 33 Defendant was asked about a recorded statement he gave to Detective Gary Beier.

Defendant recalled showing the detective how he raised his hands up after getting his hands out

of Em. C.’s shirt after the second incident. Defendant testified that Em. C. did not turn her body

toward him when El. C. jumped on the couch. According to defendant, he never mentioned an

incident where Em. C. asked him to “squish” her legs to the detective. Defendant explained, “At

the time I didn’t know she said I had touched her frog.” When asked why he specifically

remembered the incident, defendant testified, “When I saw the interview and she said she put her

leg over me, yeah, of course I’m going to remember it then.” Defendant explained the incidents

he described best matched the descriptions given in the recorded interview.

¶ 34 6. Gary Beier

¶ 35 Gary Beier, a detective with the Dwight Police Department, testified he

interviewed defendant in April 2017. According to Beier, defendant described an incident where

he was rubbing Em. C.’s back and El. C. jumped on the couch. Defendant said Em. C. turned her

body toward him. Defendant never told Beier that his hand got stuck in Em. C.’s shirt or about

an incident where Em. C. asked him to “squish” her legs.

¶ 36 C. Verdict and Sentence

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¶ 37 In March 2018, the trial court entered a written order finding defendant guilty

beyond a reasonable doubt of all three charges. The court made extensive factual findings and

found Em. C. and El. C. to be credible witnesses. The court found Em. C.’s testimony consistent

with the recorded interview. Although Em. C. confused which incident occurred first, the details

of each incident were consistent. The court found El. C.’s testimony consistent with the recorded

interview. The court found El. C. repeated the same story four separate times—twice to her

mother, once during the recorded interview, and once in court. The court further found El. C.’s

testimony was corroborated by the fact El. C. told her mother about the incident the very next

day.

¶ 38 The trial court found “some of defendant’s answers and face expressions on direct

examination were unusual and not entirely appropriate to the question asked.” The court found

defendant was not a credible witness and his demeanor was evasive and argumentative. The

court concluded the State presented credible and consistent evidence that defendant engaged in

the acts and met its burden of proof beyond a reasonable doubt on all counts.

¶ 39 In September 2018, the trial court held a sentencing hearing. The court sentenced

defendant to 36 months’ probation and a term of 180 days’ imprisonment.

¶ 40 This appeal followed.

¶ 41 II. ANALYSIS

¶ 42 On appeal, defendant argues (1) he received ineffective assistance of counsel

where counsel stipulated to the admission of recordings of El. C.’s and Em. C.’s statements at the

CAC and (2) his constitutional right to be present at all critical stages of his trial was violated

where the trial court privately viewed the recordings.

¶ 43 A. Ineffective Assistance of Counsel

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¶ 44 Defendant argues he was denied his right to effective assistance of counsel where

defense counsel stipulated to the admission of the recorded CAC interviews. Defendant argues

the recordings were inadmissible. The State argues the record is insufficient to evaluate defense

counsel’s performance because the decision to stipulate to the admission of the videos may have

been sound trial strategy. The State further argues this court need not decide whether counsel’s

stipulation was ineffective assistance because defendant has failed to show prejudice.

Specifically, the State asserts the recordings would have been admitted without the stipulation

because the time, content, and circumstances of the statements provided sufficient safeguards of

reliability.

¶ 45 A claim of ineffective assistance of counsel is governed by the familiar

framework set forth in Strickland v. Washington, 466 U.S. 668 (1984). “To prevail on a claim of

ineffective assistance of counsel, a defendant must demonstrate that counsel’s performance was

deficient and that the deficient performance prejudiced the defendant.” People v. Domagala,

2013 IL 113688, ¶ 36, 987 N.E.2d 767. The deficient-performance prong requires a defendant to

show that counsel’s performance was objectively unreasonable under prevailing professional

norms. People v. Veach, 2017 IL 120649, ¶ 30, 89 N.E.3d 366. Under the prejudice prong,

defendant must show a reasonable probability that but for counsel’s deficient performance the

outcome of the proceeding would have been different. Id. “A reasonable probability is defined as

a probability sufficient to undermine confidence in the outcome.” (Internal quotation marks

omitted.) Id. A defendant must satisfy both prongs to prevail on a claim of ineffective assistance

of counsel. Id.

¶ 46 Section 115-10 of the Code allows certain exceptions for otherwise inadmissible

hearsay evidence. 725 ILCS 5/115-10 (West 2016). The statute allows the admission of out of

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court statements made by the victim in a prosecution for a sexual act perpetrated upon or against

a child under the age of 13. Id. § 115-10(a). The statute, in relevant part, imposes preconditions

to the admissibility of this hearsay evidence as follows:

“(b) Such testimony shall only be admitted if:

(1) The court finds in a hearing conducted outside

the presence of the jury that the time, content, and

circumstances of the statement provide sufficient

safeguards of reliability; and

(2) The child *** either:

(A) testifies at the proceeding[.]” Id. § 115-

10(b).

¶ 47 As noted, the State argues this court need not determine whether counsel’s

stipulation to the admission of the recordings was objectively unreasonable because defendant

has failed to demonstrate prejudice where the recordings were admissible because the time,

content, and circumstances of the recordings provided sufficient safeguards of reliability. To

demonstrate prejudice, defendant must show a reasonable probability that the outcome of the

proceeding would have been different but for counsel’s allegedly unreasonable performance.

Assuming arguendo that defense counsel had successfully challenged the admission of the

recordings, we conclude the outcome of defendant’s trial would not have been different. It is

well settled that “[t]he testimony of a single witness, if it is positive and the witness credible is

sufficient to convict even though it is contradicted by the accused.” People v. Hampton, 44 Ill. 2d

41, 45, 253 N.E.2d 385, 387 (1969). Moreover, it is the function of the trier of fact to weigh the

credibility of witnesses. Id.

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¶ 48 Here, the trial court found Em. C., El. C., and J.C. to be credible witnesses and

defendant not to be a credible witness. Em. C. testified defendant touched her inappropriately on

two occasions. Em. C. testified defendant was scratching her back and moved his hands around

the sides of her body and scratched and rubbed her “ninnies,” or breasts. Em. C. testified on a

second occasion defendant rubbed her “private” and her “ninnies” while watching a movie. El.

C. testified that defendant rubbed her “froggy,” or vagina, in a circular motion with his hand

while watching a movie. The girls’ testimony provided consistent evidence of defendant’s

conduct. Moreover, the girls’ testimony was corroborated by J.C.’s testimony that the girls

disclosed incidents consistent with their trial testimony. Defendant did not object to J.C.’s

testimony at trial and does not raise any issues with her testimony on appeal. Even if counsel had

successfully blocked the admission of the recordings, this evidence, combined with the trial

court’s explicit findings of credibility, shows there was no reasonable probability the outcome of

the trial would have been different.

¶ 49 Defendant argues the trial court relied on the video recordings in making its

findings and determining defendant’s guilt. Even if we assume—without deciding—the

recordings were essential to the trial court’s finding of guilt, we agree with the State that the

time, content, and circumstances of the recordings provide sufficient safeguards of reliability and

would have been admissible regardless.

¶ 50 The State argues both girls made detailed disclosures to Sipes in response to

open-ended questions. The time, content, and circumstances of the recorded interviews provide

sufficient safeguards of reliability because the girls made the statements in response to open-

ended questions, their descriptions of the incidents were consistent with their disclosures to their

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mother, and the recorded statements were made shortly after disclosing the incidents to their

mother.

¶ 51 Defendant argues Em. C.’s statement was incongruous and unreliable because she

described the two incidents as occurring seven months apart or as happening in the same month.

Defendant further argues Em. C.’s confusion as to which incident occurred first renders the

recorded interview inadmissible. While there might have been minor inconsistencies in Em. C.’s

recorded interview—and minor inconsistencies with her trial testimony—we conclude this is

insufficient to show the recording was unreliable. Although Em. C. did switch the order of the

two incidents and described the incidents as being separated by up to seven months or as having

happened in the very same month, the details of the specific incidents were consistent in both the

video and the trial testimony. Em. C. consistently stated defendant began scratching her back

while sitting on the couch and then moved his hands forward to scratch and rub her “ninnies.”

Em. C. consistently described defendant touching her “froggy” with one hand while she was

prone on the couch. These consistent details weigh in favor of finding the recordings reliable.

¶ 52 Defendant complains the State failed to address the following factors related to

the reliability of the recorded interviews: “(1) the spontaneity and consistent repetition of the

statement; (2) the mental state of the child in giving the statement; (3) the use of terminology not

expected in a child of comparable age; and (4) the lack of a motive to fabricate.” People v.

Bowen, 183 Ill. 2d 103, 120, 699 N.E.2d 577, 586 (1998). Defendant asserts these factors weigh

against finding a sufficient safeguard of reliability. We disagree. First, El. C.’s disclosure to her

mother was spontaneous and unprompted. Although J.C. asked El. C. what was wrong, J.C.

made no mention of defendant or inappropriate touching before El. C. stated her grandfather

touched her “froggy.” This is entirely consistent with her disclosure during the recorded

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interview. Similarly, J.C. approached Em. C. and asked if Em. C. needed to disclose anything,

but again J.C. made no mention of defendant or inappropriate touching before Em. C. disclosed

the two incidents. Em. C.’s disclosures during the recorded interview were consistent, even

though she confused the timeline. This is understandable given the intervening time between the

incidents and her interview. Moreover, as discussed above, the details of the incidents

themselves remained remarkably consistent from her recorded interview to her trial testimony.

¶ 53 Defendant complains the State failed to address Em. C.’s selective recall

regarding her mother reading a specific weather report the day of the first incident. Defendant

argues this recollection is suspicious given her vacillation on the “highly significant details” of

which incident occurred first and how much time intervened between the two incidents. We

disagree that Em. C.’s recollection of these details sows doubt about the reliability of the

recorded interview. Again, both girls made detailed, consistent disclosures in response to open-

ended questions by a trained forensic interviewer. These interviews were conducted just one or

two weeks after they made the disclosures to their mother. The spontaneity and consistency of

the statements and the mental state of the girls in the recorded interviews weighs in favor of the

reliability of the recorded interviews. Finally, J.C.’s testimony established the girls’ lack of a

motive to fabricate the incidents. J.C. testified the girls had a great relationship with defendant

and loved spending time with him. Nothing in the record indicates the girls had any reason to

fabricate the incidents. As such, this factor further weighs in favor of the reliability of the

recorded interviews.

¶ 54 We conclude defendant has failed to show how defense counsel’s allegedly

ineffective assistance prejudiced him where (1) even if the recorded interviews were not

admitted into evidence there is no probability the outcome of his trial would have been different

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and (2) the recorded interviews would have been admitted if counsel had not stipulated to their

admission.

¶ 55 B. Right to be Present at all Critical Stages

¶ 56 Defendant next argues his right to be present at all critical stages of his trial was

violated where he was not present when the trial court viewed the recorded interviews.

Defendant concedes this argument has been forfeited but asserts this court should review the

claim under the second prong of the plain-error doctrine.

¶ 57 “[T]he plain-error doctrine allows a reviewing court to consider unpreserved error

when (1) a clear or obvious error occurred and the evidence is so closely balanced that the error

alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of

the error, or (2) a clear or obvious error occurred and that error is so serious that it affected the

fairness of the defendant’s trial and challenged the integrity of the judicial process, regardless of

the closeness of the evidence.” People v. Piatkowski, 225 Ill. 2d 551, 565, 870 N.E.2 403, 410-11

(2007). The first step in plain-error analysis is to determine whether error occurred. Id.

¶ 58 As noted, defendant asserts this claim should be evaluated under the second prong

of the plain-error doctrine. In support of this argument, defendant relies on People v. Lucas, 2019

IL App (1st) 160501, 141 N.E.3d 341.

¶ 59 “Generally, the United States and Illinois Constitutions afford criminal defendants

the right to be present at all critical stages of the proceedings, from arraignment to sentencing.”

Id. ¶ 12. However, “[u]nder the due process clause of the fourteenth amendment, a criminal

defendant’s right of presence is violated only when his absence results in the denial of a fair and

just trial.” People v. Lofton, 194 Ill. 2d 40, 67, 740 N.E.2d 782, 797 (2000). The question is

“whether the defendant’s presence at the proceeding would have contributed to his opportunity

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to defend himself against the charges.” Id. “The justice or injustice of the exclusion of the

defendant must be determined in the light of the whole record.” Id. In determining whether a

defendant’s right to be present has been denied, our review is de novo. People v. O’Quinn, 339

Ill. App. 3d 347, 358, 791 N.E.2d 1066, 1075 (2003).

¶ 60 In Lucas, the trial court viewed a video of the defendant’s traffic stop in chambers

with defense counsel and the prosecutor. Lucas, 2019 IL App (1st) 160501, ¶ 5. The appellate

court concluded the defendant’s “absence from the video viewing affected the trial’s fairness

because she was unable to view the evidence against her and aid in her own defense.” Id. ¶ 14.

Neither the trial court nor defense counsel informed the defendant that she had a right to be

present during the presentation of the video evidence. Id. Accordingly, the appellate court

concluded the defendant had not meaningfully waived her right to be present when she agreed to

the video viewing procedure. Id. The appellate court concluded the presentation of evidence at

trial was a critical stage of the proceedings, the video involved a significant portion of the

evidence against the defendant, the trial court relied on the video in finding the defendant guilty,

and nothing in the record showed the defendant had viewed the video. Id. ¶¶ 15-16.

¶ 61 The appellate court further stated,

“[T]he United States Supreme Court has explained, ‘The constitutional right to

presence is rooted to a large extent in the Confrontation Clause of the Sixth

Amendment’ and ‘a defendant has a due process right to be present at a

proceeding whenever his presence has a relation, reasonably substantial, to the

fulness of his opportunity to defend against the charge.” (Internal quotation marks

omitted.) Id. ¶ 15 (quoting United States v. Gagnon, 470 U.S. 522, 526 (1985)).

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The appellate court found the defendant’s absence from the video viewing impacted her right to

testify in her own defense because, in order to decide whether to testify, “the defendant must be

aware of all of the State’s evidence.” (Emphasis in original.) Id. ¶ 19. Accordingly, the appellate

court concluded the violation of the defendant’s right to be present had a cascading impact on

fundamental rights that amounted to second-prong plain error. Id. ¶ 21.

¶ 62 We find Lucas distinguishable. First, the record in Lucas contained no indication

of whether the defendant had knowledge of the content of the video. Id. ¶ 16. Here, the record

indicates defendant viewed the videos. Defendant testified he remembered one particular

incident with Em. C. when he saw the video where she stated she put her leg over defendant’s

lap. Defendant further testified the incidents he remembered best matched the descriptions given

in the recording. Unlike Lucas, the record shows defendant viewed the recording. Defendant

argues the record only reveals he saw some portion of the video at some point but that nothing

shows he saw the complete interviews or that his viewing was recent enough to recall the

particulars of the statements. However, defendant cites no authority to support this argument.

Moreover, as the Lucas court noted, the right to be present is rooted in the confrontation clause.

Here, both Em. C. and El. C. testified at trial, and defense counsel rigorously cross-examined

both witnesses, including asking the witnesses about inconsistencies between their trial

testimony and the recorded interviews.

¶ 63 Defendant argues the recordings were a significant portion of the evidence against

him. Defendant asserts the appellate court in Lucas found a constitutional violation of the

defendant’s right to be present where the trial court viewed a video of her traffic stop outside of

her presence where “the video of the traffic stop involved a significant portion of the evidence

against [the defendant]. Indeed, the court relied on the video in finding [the defendant] guilty.”

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Id. ¶ 15. In Lucas, the trial court explicitly relied on the video of the defendant’s driving under

the influence traffic stop. Id. ¶ 7. The trial court stated the video showed the defendant’s driving

was “disturbing,” the defendant admitted to drinking alcohol, and the defendant was

“belligerent.” Id. The court also noted the defendant’s general behavior indicated she was under

the influence of alcohol. Id.

¶ 64 Here, the video recordings were not as significant a portion of the evidence as the

video was in Lucas. As discussed above, the evidence in this case was sufficient to prove

defendant guilty beyond a reasonable doubt without the videos. The trial court found Em. C., El.

C., and J.C. to be credible witnesses. Although the court did find the videos corroborated their

testimony, the court clearly credited the testimony itself. Moreover, the videos did not depict

defendant’s conduct but the witnesses’ statements—witnesses who testified at trial where

defendant had the opportunity to confront them. See People v. Groebe, 2019 IL App (1st)

180503, ¶¶ 51-52, 145 N.E.3d 411 (declining to find the defendant’s absence from the video

viewing caused the proceedings to be unfair or resulted in the denial of an underlying substantial

right, including the right to confront witnesses where the witness testified and the defendant had

the opportunity to confront and cross-examine them).

¶ 65 Upon our review of the entire record, we conclude defendant’s presence at the

video viewing would not have contributed to his opportunity to defend himself against the

charges where he had no objection to the court viewing the videos outside of his presence, he

saw the videos himself, the witnesses in the videos testified in open court where defendant had

the opportunity to confront and cross-examine them, and defendant was aware of all the State’s

evidence when he decided to testify in his own defense. Because we conclude defendant’s right

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to be present was not violated, we conclude no error occurred. Piatkowski, 225 Ill. 2d at 565.

Accordingly, we affirm the judgment of the trial court.

¶ 66 III. CONCLUSION

¶ 67 For the reasons stated, we affirm the trial court’s judgment.

¶ 68 Affirmed.

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 No. 4-18-0652

Cite as: People v. Myles, 2020 IL App (4th) 180652

Decision Under Review: Appeal from the Circuit Court of Livingston County, No. 17-
CF-172; the Hon. Jennifer H. Bauknecht, Judge, presiding.

Attorneys James E. Chadd, Catherine K. Hart, and Amy J. Kemp, of State
for Appellate Defender’s Office, of Springfield, for appellant.
Appellant:

Attorneys Randy Yedinak, State’s Attorney, of Pontiac (Patrick Delfino,
for David J. Robinson, and Allison Paige Brooks, of State’s
Appellee: Attorneys Appellate Prosecutor’s Office, of counsel), for the
People.

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