People v. McKinney

NOTICE
2021 IL App (5th) 190141-U
NOTICE
Decision filed 11/18/21. The
This order was filed under
text of this decision may be NO. 5-19-0141 Supreme Court Rule 23 and is
changed or corrected prior to
not precedent except in the
the filing of a Petition for
Rehearing or the disposition of
IN THE limited circumstances allowed
under Rule 23(e)(1).
the same.
APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT
________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Effingham County.
)
v. ) No. 18-CF-195
)
DARIEN McKINNEY, ) Honorable
) Kevin S. Parker,
Defendant-Appellant. ) Judge, presiding.
________________________________________________________________________

JUSTICE WELCH delivered the judgment of the court.
Justices Cates and Wharton concurred in the judgment.

ORDER

¶1 Held: The defendant’s conviction is affirmed where the evidence presented at trial
was not closely balanced, and, thus, the defendant cannot establish that the
trial court’s failure to comply with Illinois Supreme Court Rule 431(b) (eff.
July 1, 2012) constituted plain error.

¶2 This is a direct appeal from the circuit court of Effingham County. The defendant,

Darien McKinney, was convicted of predatory criminal sexual assault of a child. On

November 20, 2018, he was sentenced to 12 years’ imprisonment followed by 3 years of

mandatory supervised release (MSR). On appeal, the defendant argues that the trial court

failed to comply with Illinois Supreme Court Rule 431(b) (eff. July 1, 2012). For the

reasons that follow, we affirm.
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¶3 I. BACKGROUND

¶4 On June 20, 2018, the defendant was charged by indictment with one count of

predatory criminal sexual assault of a child (720 ILCS 5/11-1.40(a)(1) (West 2018)). It

was alleged that the defendant, who was over 17 years old, knowingly committed an act of

sexual contact with the victim, J.S., who was under 13 years of age, when he touched the

victim’s vagina with his finger for the purpose of his sexual arousal.

¶5 On October 1, 2018, the defendant’s two-day jury trial commenced. During jury

selection, the trial court asked jurors questions relating to Illinois Supreme Court Rule

431(b) (eff. July 1, 2012). The court explained that it would explain a few general legal

propositions. The court posed its questions to the panel as a whole, asking for potential

jurors to raise their hands “if there is anyone that has a quarrel or can’t accept this legal

proposition.” The court continued:

“[T]he Defendant, Mr. McKinney, is presumed innocent of the charges against him.
Does anybody have a quarrel with that legal proposition that Mr. McKinney is
presumed innocent?
Before Mr. McKinney can be convicted, the State must prove the Defendant
guilty beyond a reasonable doubt. Does anybody have a quarrel with that legal
proposition?
The Defendant is not required to offer any evidence on his own behalf. Does
anybody have a quarrel with that?”

¶6 During the State’s case-in-chief, Officer Joshua Douthit of the Effingham Police

Department testified that on May 21, 2018, he responded to a dispatch request for an officer

to meet with an individual, later identified as the defendant, in the lobby of the police

department. The defendant went to the police department voluntarily to report a Facebook

post that was alarming and apparently about him. After the defendant showed him the

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Facebook post and provided his explanation of it, Douthit asked follow-up questions,

created a report, and handed the case over to investigators.

¶7 Detective Corporal Darin Deters of the Effingham County Sheriff’s Office testified

that he assisted in the defendant’s interview. Prior to entering the interview, Deters was

informed that the defendant was being questioned about an allegation made on Facebook.

The Facebook post was made by the victim, whom the defendant knew through her uncle.

The victim and her uncle had lived with the defendant about three years prior to the

interview. Deters reviewed the lengthy Facebook post, which detailed situations where the

victim wore diapers in the defendant’s presence. In the first hour of the interview, the

defendant denied the allegations but acknowledged knowing and living with the victim.

However, the defendant admitted to having a diaper fetish, in that he enjoyed wearing

diapers and used them for therapeutic reasons. The defendant also said he subscribed to a

website called “Fetlife.” He admitted engaging in “diaper play” with other women, with

three of those relationships involving sexual intercourse. The defendant admitted that he

liked seeing women wearing diapers.

¶8 Deters explained that after an hour or so, the defendant’s demeanor changed, and he

began to cry. He then admitted to having the victim put a diaper on in his presence at least

three times. The victim would take off all her clothes, be completely nude, and put on a

diaper. The defendant indicated that on some occasions, the two of them would just talk.

Another time, he cradled her like a baby and fed her soda from a plastic baby bottle. The

defendant admitted to having an erection during this encounter. He also admitted that on

one occasion, the victim wet her diaper, so he removed it and wiped the outside of her
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vagina with a baby wipe. The defendant denied having sexual intercourse with the victim,

but he spoke in detail about her breasts. During this time, the victim was around 12 or 13

years old. The defendant was 30 years old at the time of his interview.

¶9 Officer Aaron Lange of the Effingham Police Department testified that he was also

present during the defendant’s interview. Lange agreed that the interview had two distinct

segments: (1) the first hour where the defendant denied involvement in the allegations and

(2) the remaining time where he admitted to certain allegations. The State specifically

asked whether, during the first half of the interview, the defendant explained a “weird fetish

that he had?” Lange responded in the affirmative. The defendant showed Lange the Fetlife

website, which appeared to be pornography, and admitted to using Fetlife to discuss or

engage in his diaper fetish with others. Lange said that after about the first hour of the

interview, the defendant began to cry and sob; he then admitted that the victim completely

undressed and put a diaper on in front of him. The defendant said this happened on three

occasions. A video clip was played for the jury, and Lange indicated that the clip showed

the defendant admitting that he was aroused during these three occasions and had an

erection during one encounter. However, the defendant continued to deny that the “diaper

play” with the victim was sexual in nature.

¶ 10 During her testimony, the victim described her interactions with the defendant and

how the alleged events came to occur. In 2015, when the victim was 12 years old, she and

her uncle moved into the house where the defendant was living. She and the defendant

would have personal conversations about their lives, she trusted him, and she would go to

him when she needed to vent. Around May 2015, their relationship became physical. The
4
victim recalled she was having a rough day, and the defendant mentioned a “counseling

thing” that he thought would help her. He said “he would treat [her] like a baby and [they]

would do baby things.” The “counseling sessions” took place in his bedroom. During the

encounters, the defendant took off her pants and undergarments, wiped her vagina with a

baby wipe, sprinkled baby powder on her, and put a diaper on her. When she wore a diaper,

he would cradle her in his arms and feed her soda with a baby bottle. The defendant would

also wipe her vagina when he took off her diaper.

¶ 11 On one occasion, the defendant told the victim to take off her shirt because he

wanted her completely naked. The victim did not want to, but the defendant insisted that

it was okay and said she was beautiful. He kept asking, so she let him take off her shirt.

He then hugged her and again said she was beautiful. She slept in a crib in his room that

night. The victim recalled that she had maybe 10 sessions with the defendant. At first, she

was apprehensive about them, but she wanted to believe that they were helping her as the

defendant insisted. She said the defendant told her they could stop at any time, but she

could come to him if she ever wanted to talk. On cross-examination, the victim testified

that she was only fully naked once, and the defendant never took his clothes off, exposed

himself to her, or made her touch him.

¶ 12 The defendant testified in his own defense. He described his difficult upbringing,

including that his stepmother would shop around for doctors who would prescribe him

medications. The defendant recalled having problems with wetting the bed and needing

diapers to combat the problem. The defendant met the victim when she and her uncle

moved into the house where he was living. Eventually, the victim and the defendant
5
bonded over their difficult childhoods and lack of parental figures. The defendant testified

that he found the Fetlife website and started wearing diapers to calm him down. He

described relationships he had with women who agreed to wear diapers with him.

¶ 13 The defendant described the incidents when the victim would wear a diaper; he

testified that he recommended it to her for therapeutic purposes. The defendant testified

that he did not want to overstep any boundaries and always asked the victim if she felt

comfortable. The first time she wore a diaper, they just talked for about 30 minutes, and

he fed her soda from a baby bottle. He claimed that he did not engage in this activity for

arousal, but because the victim was depressed, and he thought it would help. He testified

that when he was by himself wearing a diaper, he was not sexually aroused, did not view

pornography, did not sexually stimulate himself, and did not use any sex toys. He denied

wearing a diaper during any kind of sexual activity with his adult sexual partners.

¶ 14 On cross-examination, the defendant admitted that he had a blowup doll, a bag of

soiled diapers, and an adult onesie in his bedroom. The defendant also admitted that he

was a member of the Fetlife website, but claimed he only used it to reach out and talk to

other people interested in diaper play, not for sexual purposes. He admitted taking the

victim’s clothes off of her during their first session. Although he admitted wiping her

vagina with a baby wipe, he claimed that it only happened once. The defendant testified

that he had all but one of his past girlfriends wear diapers. Like the victim, they all had

emotional issues and that was how he approached them about wearing the diapers. He also

had sexual relations with them. The defendant confirmed that, during his interview, he

said he was aroused during his interactions with the victim. The State also asked the
6
defendant to confirm that he told police he had an erection, to which the defendant replied,

“More or less, I didn’t—it wasn’t fully erect.” He then admitted that this answer was

different from what he told the police during his interview.

¶ 15 The State recalled Lange to testify as a rebuttal witness. He was asked about the

defendant’s response when the detectives questioned him as to whether he engaged in

sexual intercourse with the victim. Lange testified, “He said that one thing led to another

and that it was stopped just before they did the one thing that would destroy the both of

them.”

¶ 16 The jury found the defendant guilty of predatory criminal sexual assault of a child.

The defendant was sentenced to 12 years’ imprisonment followed by 3 years of MSR.

¶ 17 The defendant filed his notice of appeal on April 4, 2019.

¶ 18 II. ANALYSIS

¶ 19 The defendant’s sole contention on appeal is that the trial court failed to comply

with Illinois Supreme Court Rule 431(b) (eff. July 1, 2012) during voir dire. He concedes

that he did not raise this issue during trial or in a posttrial motion but argues that the error

is subject to plain-error review because the evidence in this case was closely balanced. The

State responds that the defendant is not entitled to plain-error relief because the evidence

was not closely balanced. We agree with the State’s position.

¶ 20 Rule 431(b) requires that the trial court ask all potential jurors whether they

understand and accept four fundamental principles of criminal law: (1) that defendant is

presumed innocent of the charges against him, (2) that the State must prove defendant

guilty beyond a reasonable doubt, (3) that defendant is not required to offer any evidence
7
on his own behalf, and (4) that defendant’s decision to not testify cannot be held against

him. Id. These four principles are commonly referred to as the Zehr principles. See People

v. Zehr, 103 Ill. 2d 472 (1984). Rule 431(b) mandates

“a specific question and response process. The trial court must ask each potential
juror whether he or she understands and accepts each of the principles in the rule.
The questioning may be performed either individually or in a group, but the rule
requires an opportunity for a response from each prospective juror on their
understanding and acceptance of those principles.” People v. Thompson, 238 Ill. 2d
598, 607 (2010).

¶ 21 However, there is no requirement that the trial court recite a principle and then

question each potential juror on that individual principle. People v. Birge, 2021 IL 125644,

¶ 34. “Under the plain language, a court complies with Rule 431(b) if it (1) instructs the

prospective jurors on the four principles, (2) asks if the prospective jurors understand those

principles, and (3) asks if the prospective jurors accept those principles.” Id.

¶ 22 The plain-error doctrine allows a reviewing court to consider an unpreserved error

when a clear or obvious error occurred and the evidence at trial was closely balanced or

that error was so egregious as to deny defendant a fair trial. Thompson, 238 Ill. 2d at 613.

The first step in plain-error review is to determine whether any error has been committed

at all. Id.

¶ 23 Here, the trial court said to the potential jurors that it would explain a few general

legal propositions. The court posed the questions to the panel as a whole and asked

potential jurors to raise their hands “if there is anyone that has a quarrel or can’t accept this

legal proposition.” The court continued:

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 “[T]he Defendant, Mr. McKinney, is presumed innocent of the charges against him.
Does anybody have a quarrel with that legal proposition that Mr. McKinney is
presumed innocent?
Before Mr. McKinney can be convicted, the State must prove the Defendant
guilty beyond a reasonable doubt. Does anybody have a quarrel with that legal
proposition?
The Defendant is not required to offer any evidence on his own behalf. Does
anybody have a quarrel with that?”

Thus, the record is clear that the court failed to instruct the prospective jurors that if a

defendant does not testify it cannot be held against him, and it failed to ask the prospective

jurors if they understood the relevant legal principles. In this regard, the court clearly erred

in failing to comply with Rule 431(b). See Birge, 2021 IL 125644, ¶ 34.

¶ 24 Having concluded that there was a clear error, we must determine whether the

evidence was closely balanced. When determining whether the evidence was closely

balanced, a reviewing court must evaluate the totality of the evidence and conduct a

qualitative, commonsense assessment of that evidence within the context of the case.

People v. Sebby, 2017 IL 119445, ¶ 53.

¶ 25 In this case, Deters and Lange testified as to their interview of the defendant. Their

testimony revealed that the Facebook post that initiated this investigation detailed

situations where the victim wore diapers in the defendant’s presence. The interview had

two distinct segments: (1) the first hour where the defendant denied involvement in the

allegations in the Facebook post and (2) the remaining time where the defendant admitted

to certain allegations. In the first hour, although the defendant denied the allegations, he

explained his diaper fetish and that he subscribed to the Fetlife website. The website

appeared to be pornography, and the defendant used it to discuss or engage in his diaper

9
fetish with others. He had engaged in “diaper play” with other women, three of those

occasions involved sexual intercourse, and he liked seeing women wearing diapers.

¶ 26 Over an hour into the interview, the defendant’s demeanor changed, and he started

to cry. He then admitted to having the victim wear a diaper in his presence on at least three

occasions. She would take off all her clothes, be completely nude, and put on a diaper.

During one encounter, he cradled her like a baby and fed her soda from a plastic baby

bottle. He admitted to having an erection during this encounter. On another occasion, the

victim wet her diaper, so he removed it and wiped the outside of her vagina with a baby

wipe. He denied having sexual intercourse with the victim, but he spoke in detail about

her breasts. In the video clip played for the jury, the defendant admitted that he was aroused

during these three occasions and had an erection during one encounter. The defendant

denied that the “diaper play” with the victim was sexual in nature. However, when asked

during his interview whether he engaged in sexual intercourse with the victim, the

defendant stated, “one thing led to another,” and they “stopped just before they did the one

thing that would destroy the both of them.”

¶ 27 The victim’s testimony established that she trusted and confided in the defendant.

In May 2015, when she was 12 years old, she was having a rough day when the defendant

mentioned a “counseling thing” that he thought would help her. He said, “he would treat

[her] like a baby and [they] would do baby things.” Although she was apprehensive, she

wanted to believe the alleged sessions were helping her as the defendant insisted. During

the encounters, which took place in his bedroom, the defendant took off the victim’s pants

and undergarments, wiped her vagina with a baby wipe, sprinkled baby powder on her, and
10
put a diaper on her. This happened approximately 10 times. When she wore a diaper, he

would cradle her in his arms and feed her soda with a baby bottle. He would also wipe her

vagina when he took off her diaper.

¶ 28 On one occasion, the defendant told the victim to take off her shirt because he

wanted her completely naked. She did not want to, but he insisted that it was okay and

said she was beautiful. He kept asking, so she let him take off her shirt. He then hugged

her and again said she was beautiful. She slept in a crib in his room that night.

¶ 29 In his defense, the defendant attempted to downplay the sexual nature of his diaper

fetish. He testified that he recommended wearing diapers to the victim for alleged

therapeutic purposes. He insisted that he did not want to overstep any boundaries and

always asked the victim if she felt comfortable. He testified that he did not engage in this

activity for arousal, but because the victim was depressed, and he thought it would help.

He testified that when he was by himself wearing a diaper, he was not sexually aroused,

did not view pornography, did not sexually stimulate himself, and did not use any sex toys.

He testified that he did not wear a diaper during any kind of sexual activity with his adult

sexual partners. He also claimed that he only used the Fetlife website to talk to other people

interested in diaper play, not for sexual purposes.

¶ 30 However, the defendant admitted on cross-examination that portions of his trial

testimony varied from what he had previously told officers. In fact, the defendant’s story

had already changed throughout the duration of his interview. He admitted taking the

victim’s clothes off. He also admitted wiping her vagina with a baby wipe, although he

claimed that it only happened once. The defendant had all but one of his past girlfriends
11
wear diapers, and he had sexual relations with each of them. He confirmed that, during his

interview, he said he was aroused during his interactions with the victim. Although the

defendant attempted to downplay the extent of his erection, he admitted that his testimony

on this issue was different from what he told the police during his interview.

¶ 31 Having considered the totality of the evidence, and having conducted a qualitative,

commonsense assessment of that evidence within the context of this case, we do not find

that the evidence was closely balanced. Rather, we conclude that the evidence of the

defendant’s guilt was overwhelming. Accordingly, the defendant has failed to establish

that the trial court’s failure to comply with Rule 431(b) constituted plain error.

¶ 32 Although we have concluded that plain-error relief is not appropriate in this case,

we find it important to note that the issue of trial courts failing to comply with Rule 431(b)

has needlessly plagued Illinois reviewing courts for decades. People v. Neal, 2020 IL App

(4th) 170869, ¶¶ 191-93. We say “needlessly” because avoiding this issue entirely could

not be easier. Id. ¶ 190. Trial courts’ failure to strictly comply is all the more perplexing

given the very serious interests at stake. See id. ¶ 197 (describing what a prosecutor must

say to a victim after a conviction has been reversed, including that retrial may not be

possible). We reiterate that trial courts should strictly adhere to the precise language the

Illinois Supreme Court requires in Rule 431(b).

¶ 33 III. CONCLUSION

¶ 34 Therefore, we affirm the judgment of the circuit court of Effingham County.

¶ 35 Affirmed.
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