People v. Melvin

2023 IL App (4th) 220385
FILED
NO. 4-22-0385 March 3, 2023
Carla Bender
4th District Appellate
IN THE APPELLATE COURT Court, IL

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Livingston County
CORY P. MELVIN, ) No. 20CF116
Defendant-Appellant. )
) Honorable
) Jennifer H. Bauknecht,
) Judge Presiding.

JUSTICE TURNER delivered the judgment of the court, with opinion.
Justices Doherty and Lannerd concurred in the judgment and opinion.

OPINION

¶1 In June 2020, the State charged defendant, Cory P. Melvin, by information, with

five counts of predatory criminal sexual assault of a child (720 ILCS 5/11-1.40(a)(1) (West 2020)).

At the conclusion of a bench trial, the Livingston County circuit court found defendant guilty of

all five charges. Defendant filed a posttrial motion, asserting the evidence was insufficient to prove

him guilty on all five counts. At a joint December 2021 hearing, the court denied defendant’s

posttrial motion and sentenced defendant to five consecutive prison terms of 27 years. Defendant

filed a motion to reconsider his sentence, which the court denied.

¶2 Defendant appeals, contending (1) the State’s evidence was insufficient to prove

him guilty beyond a reasonable doubt of count III of predatory criminal sexual assault of a child

and (2) his sentence for count V of predatory criminal sexual assault of a child violates the

proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11). We affirm.
¶3 I. BACKGROUND

¶4 The two charges of predatory criminal sexual assault of a child at issue in this

appeal are counts III and V. Count III alleged that—during the period of around May 5, 2017, to

May 5, 2020—defendant, who was 17 years of age or older, committed an act of sexual penetration

with K.A., who was under 13 years of age when the act was committed, by knowingly placing his

finger inside K.A.’s vagina. Count V asserted that—during the period of around May 5, 2017, to

May 5, 2020—defendant, who was 17 years of age or older, committed “an act of contact” with

K.A., who was under 13 years of age when the act was committed, by knowingly placing K.A.’s

hand on his penis for the purpose of his sexual gratification or arousal.

¶5 On October 28, 2021, the trial court commenced a bench trial on the five charges.

The State presented the testimony of (1) Steven Hinz, the person who called the police when K.A.

showed up at his front door; (2) K.A., the victim; (3) Emily Frobish, a Livingston County Sheriff’s

detective; and (4) Dr. Channing Petrak, a child abuse pediatrician. The State also presented the

recordings of Amber Stensrud’s June 9, 2020, interview of K.A. at the Children’s Advocacy Center

(CAC) and Detective Frobish’s interview of defendant, which also took place on June 9, 2020.

Defendant testified on his own behalf and presented the testimony of his aunt, Juanita Barger, and

his girlfriend, who is the victim’s mother. The evidence relevant to the issues on appeal follows.

¶6 Hinz testified he heard a knock on the door sometime between 4 and 5 a.m. on June

9, 2021. A little girl, whom he had never seen before, was at his door. She did not have any shoes

on and wanted him to take her to her grandmother’s home. Hinz guessed she was around 10 years

old. Hinz called the police, and when he informed K.A. he had done so, she said she did not want

the police called because she did not want to get anyone in trouble. K.A. had explained to him she

had walked to the gas station, but it was still closed. She then went to the house across the street

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from Hinz’s home, but no one answered the door. K.A. then went to Hinz’s home. Hinz described

K.A.’s demeanor as desperate.

¶7 K.A. testified she used to live in an apartment with defendant, her mother, and two

brothers. While she lived in that household, defendant would touch her vagina with his mouth and

hands. He also touched her bottom with his penis. K.A. further testified she touched defendant’s

private parts with her hands and mouth. Such things took place in every room of the apartment,

except for the bathroom, and happened a lot. K.A. further explained the incidents would happen

while her brothers were somewhere else and her mother was busy. K.A. got “sick of it” and ran

away.

¶8 After K.A.’s testimony, the State presented its exhibit No. 1, which was the

recording of Stensrud’s interview of K.A. at the CAC. The parties stipulated to the foundation for

the CAC recording, and defendant did not object to its admission. On the video, K.A. stated she

was 10 years old. She eventually indicated she wanted to talk about what happened that morning.

K.A. explained how she snuck out of the family’s apartment because she had to do something to

stop her “dad” from touching her private parts. K.A. named defendant as her “dad.” She noted

defendant touched her private parts and she had to pretend to like it. Those incidents had been

happening since she was seven or eight years old.

¶9 When asked to clarify what private parts defendant touched, K.A. responded “all

of it” and pointed to her breasts, vagina, and butt. K.A. stated defendant touched her private parts

with his finger, private part, and mouth. In identifying her vagina, K.A. would point to it and/or

say “down there.” K.A. explained defendant touched “down there” with his finger. When asked

what defendant would do with his finger down there, K.A. replied, “wiggles it.” She further

explained defendant would slide her pants and underwear off before touching her. When asked

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where defendant’s finger would go when he wiggles it, K.A. responded “down there.” K.A. stated

it made her body feel “horrible.” When asked if he touched her down there “on the skin or over

the clothes or something else,” K.A. replied, “on the skin.” K.A. also stated defendant put his

private part “in her butthole.” Additionally, K.A. described other types of sexual contact, including

defendant placing his penis on K.A.’s hand. K.A. demonstrated what defendant made her do with

her hand on his penis. Most of the time these things happened in her bedroom, and K.A. was lying

on her bed. They happened two to three times a week, when K.A.’s mother was occupied.

¶ 10 K.A. was asked about the last time defendant touched her. She said it happened one

or two weeks before in her bedroom. Defendant touched her private part down there with his finger.

That time he just slipped his hand into her pants. K.A. said defendant “wiggled” his finger.

¶ 11 Detective Frobish testified she was the lead investigator in the investigation of

defendant. She went to defendant and K.A.’s apartment to observe the layout and collect evidence.

After she went through the apartment, Detective Frobish interviewed defendant. During the

interview, defendant stated he never touched his daughter with his tongue and fingers. That struck

Detective Frobish as odd because she had never brought up to him the specific accusations that

were made. Detective Frobish had told defendant that K.A. had accused him of inappropriately

touching her. Her interview of defendant was recorded and admitted into evidence as State’s

exhibit No. 3.

¶ 12 During the interview, defendant continuously denied he inappropriately touched

K.A. He referred to K.A. as his daughter and her mother as his wife, even though he was not

married to K.A.’s mother and was not K.A.’s biological father. Defendant had been dating K.A.’s

mother for four years, and they had two biological children together. Defendant referred to the

allegations of sexual abuse as “crap” and described the situation as “aggravating.” He could not

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understand why K.A. would make up the allegations because he would never touch her. At the

beginning of the interview, Detective Frobish did not inform defendant of the details of K.A.’s

accusations. She eventually asked him if he stuck his penis in K.A.’s anus, and he denied doing

so. Detective Frobish further asked if he had touched K.A.’s breast, and he again denied it. She

also asked why K.A. would say defendant put his fingers on her private parts, and defendant said

he did not know why. Detective Frobish indicated she did not believe defendant and noted 10 year

olds do not make this stuff up. Defendant eventually stated, “I never once put my f*** penis in

her. I never once put my penis, fingers, tongue, nothing.” Detective Frobish then questioned why

he would mention fingers and tongue. Defendant said he was just “covering all the bases.”

Detective Frobish continued to question why he would mention the tongue. At some point,

defendant stated, “I eat my woman’s p***,” “I put my fingers up in her p***,” and “she sucks on

my d***.” He then stated, “If she is talking about me putting my d*** in her ass, then the rest of

that s*** is going to eventually pop up.” Thereafter, defendant again denied touching K.A. He also

said K.A. had never seen him and her mother engaged in such acts because they happened behind

closed doors. Defendant denied having any type of pornography in the home or on his cellphone.

¶ 13 Dr. Petrak testified she was a child abuse pediatrician, which meant she did medical

evaluations for children when a concern of abuse or neglect was raised. Dr. Petrak examined K.A.

on June 16, 2020. K.A.’s examination was normal, which was what Dr. Petrak expected. She

explained minor trauma to the anogenital area heals very quickly.

¶ 14 The parties stipulated to the chain of custody of the mattress cover taken from

K.A.’s bed and the results of the forensic test completed on it. Deoxyribonucleic acid (DNA) found

in four separate samples of semen found on the mattress cover matched defendant’s DNA.

¶ 15 Defendant testified on his own behalf and denied ever touching K.A. in a sexual

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way. He explained K.A.’s mattress was the same one he and K.A.’s mother slept on at a former

residence. Both defendant and K.A.’s mother testified K.A. had been talking back and having other

disciplinary issues in the months before she ran away. K.A. had asked to live with her grandparents.

Moreover, Barger and K.A.’s mother testified K.A. was always with her mother when she was

home. K.A.’s mother did not think defendant was ever alone enough with K.A. for the allegations

to be true.

¶ 16 After the parties’ closing arguments, the trial court found defendant guilty of all

five charges. Defendant filed a posttrial motion, asserting the State’s evidence was insufficient to

prove him guilty on all five charges. In December 2021, the trial court held a joint hearing on

defendant’s posttrial motion and sentencing. The court denied the posttrial motion and sentenced

defendant to five consecutive terms of 27 years in prison. Defendant filed a motion to reconsider

his sentence, which the court denied after an April 28, 2022, hearing.

¶ 17 On May 9, 2022, defendant filed a timely notice of appeal in sufficient compliance

with Illinois Supreme Court Rule 606 (eff. Mar. 12, 2021). Accordingly, this court has jurisdiction

of defendant’s appeal under Illinois Supreme Court Rule 603 (eff. Feb. 6, 2013).

¶ 18 II. ANALYSIS

¶ 19 A. Sufficiency of the Evidence

¶ 20 On appeal, defendant contends the State’s evidence was insufficient to prove

beyond a reasonable doubt he committed count III of predatory criminal sexual assault of a child.

Our supreme court has set forth the following standard of review for insufficiency of the evidence

claims:

“It is well settled that, when reviewing a challenge to the sufficiency of the

evidence, a reviewing court must determine whether, after viewing the evidence in

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 the light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt. [Citation.] All

reasonable inferences from the evidence must be drawn in favor of the prosecution.

[Citation.] This court will not reverse the trial court’s judgment unless the evidence

is so unreasonable, improbable, or unsatisfactory as to create a reasonable doubt of

the defendant’s guilt.” (Internal quotation marks omitted.) People v. Cline, 2022 IL

126383, ¶ 25, 193 N.E.3d 1220.

¶ 21 When the information for predatory criminal sexual assault of a child charges the

defendant with committing an act of sexual penetration with the victim, the State must prove

(1) the victim was 13 years of age or younger, (2) the defendant was 17 years of age or older, and

(3) the defendant committed an act of sexual penetration. 720 ILCS 5/11-1.40(a)(1) (West 2020).

Defendant contends the State failed to prove sexual penetration as alleged in count III. “Sexual

penetration” is defined, in pertinent part, as follows:

“any contact, however slight, between the sex organ or anus of one person and an

object or the sex organ, mouth, or anus of another person, or any intrusion, however

slight, of any part of the body of one person *** into the sex organ or anus of

another person, including, but not limited to, cunnilingus, fellatio, or anal

penetration.” 720 ILCS 5/11-0.1 (West 2020).

In this case, count III alleged defendant placed his finger inside K.A.’s vagina. Thus, the State had

to prove defendant made a slight intrusion with his finger into K.A.’s vagina.

¶ 22 In support of his argument the State’s evidence was insufficient to prove the

aforementioned assertion, defendant cites People v. Maggette, 195 Ill. 2d 336, 352, 747 N.E.2d

339, 349 (2001), in which our supreme court held, “[t]he victim’s brief and vague reference to her

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vaginal area [was] insufficient to prove an ‘intrusion.’ ” There, the victim had testified her

underwear was still up on her body and the defendant was “ “rubbing and caressing me through—

he got underneath my panties—and I felt underneath my panties and in my vagina area and through

it just right through it and his fingers going underneath it.’ ” (Emphasis omitted.) Maggette, 195

Ill. 2d at 352.

¶ 23 Unlike in Maggette, the evidence regarding defendant’s touching of K.A. was not

brief. At trial, K.A. testified defendant touched her vagina with his mouth and hands. The State

also presented the recording of the interview of K.A. by Stensrud. During the interview, K.A.

stated defendant touched all of her private parts with his finger. When asked what private parts,

K.A. gestured to several areas, including her vaginal area. Stensrud asked K.A. what defendant

does with his finger and gestured to the vaginal area, and K.A. replied, “wiggles it.” Stensrud also

asked clarifying questions, and K.A. explained she had no pants or underwear on when defendant

touched her. Stensrud then asked K.A., when defendant wiggles around his finger when he touches

down there “is it on the skin or over the clothes or something else?” K.A. replied, “on the skin.”

Stensrud further asked where does defendant’s “finger go when he wiggles it?” K.A. replied,

“down there.” When asked how that would make her body feel, K.A. explained she felt “horrible”

but pretended to like it so defendant did not get upset. If K.A. did not pretend to like it, then

defendant would ask her why she did not like it.

¶ 24 The State also presented Detective Frobish’s interview of defendant. During the

interview, defendant denied inappropriately touching K.A. and stated he treated K.A. as his own

daughter. However, late in the interview process, he volunteered he never once put his penis,

fingers, or tongue in K.A. Until that point, Detective Frobish had never mentioned any accusations

related to defendant touching K.A. with his tongue. Detective Frobish then questioned defendant

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about why he would bring up the tongue, since she never mentioned that. Defendant stated he was

just covering all of the bases and was sure all of it would get thrown at him. Detective Frobish

continued to question defendant about why he would mention the tongue. Defendant explained, “I

eat my woman’s p***,” “I put my fingers up in her p***,” and “she sucks on my d***.” He then

stated, “If she is talking about me putting my d*** in her a***, then the rest of that s*** is going

to eventually pop up.” Thus, the State presented evidence defendant’s sexual activity with K.A.’s

mother involved him penetrating K.A.’s mother’s vagina with his fingers. Notably, defendant

denied K.A. witnessed him doing those things with her mother.

¶ 25 Given defendant’s aforementioned statements and K.A.’s statements during the

CAC interview defendant was wanting to provide sexual gratification to K.A. with the wiggling

of his finger, it is a reasonable inference defendant inserted his finger into K.A.’s vagina.

Moreover, K.A.’s “horrible” response to Stensrud’s question of how did it make K.A.’s body feel

when defendant wiggled his finger is consistent with that inference. Additionally, K.A.’s word

choice is significant. She used the word “wiggle” to describe defendant’s finger movements, which

is more suggestive of an intrusion than “rub” and “caress” used by the victim in Maggette.

Accordingly, we find the State’s evidence was sufficient for the trier of fact to find beyond a

reasonable doubt defendant did insert his finger into K.A.’s vagina.

¶ 26 B. Proportionate Penalties

¶ 27 Defendant also contends his conviction and sentence for predatory criminal sexual

assault of a child in count V violates the proportionate penalties clause because it shares the same

elements of aggravated criminal sexual abuse, a Class 2 felony (720 ILCS 5/11-1.60(c)(1)(i), (g)

(West 2020)), but is punished more severely. In making the argument, defendant focuses on his

actions that serve as the basis of his conviction on count V. In response, the State contends

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defendant acknowledges he cannot make a facial constitutional challenge and, instead, is raising

an as-applied constitutional challenge. The State then asserts an as-applied challenge cannot be

raised under the identical elements test. Defendant responds he did not make a concession a facial

constitutional challenge would be unsuccessful but again cites the facts underlying count V. He

also fails to expressly state whether he is raising an as-applied or facial challenge to his sentence.

We begin by clarifying the law in this area.

¶ 28 Regarding the constitutionality of a criminal statute, our supreme court has

emphasized the following:

“Constitutional challenges carry the heavy burden of successfully rebutting the

strong judicial presumption that statutes are constitutional. [Citation.] That

presumption applies with equal force to legislative enactments that declare and

define conduct constituting a crime and determine the penalties imposed for such

conduct. [Citation.] To overcome this presumption, the party challenging the statute

must clearly establish that it violates the constitution. [Citation.] Courts have a duty

to uphold the constitutionality of a statute whenever reasonably possible, resolving

any doubts in favor of the statute’s validity. [Citation.] The constitutionality of a

statute is a matter of law, and accordingly we review the circuit court’s conclusion

de novo. [Citation.]

This court has recently reiterated that facial and as-applied challenges are

not interchangeable, and there are fundamental distinctions between them.

[Citation.] An as-applied challenge requires a showing that the statute violates the

constitution as it applies to the facts and circumstances of the challenging party.

[Citation.] In contrast, a facial challenge requires a showing that the statute is

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 unconstitutional under any set of facts, i.e., the specific facts related to the

challenging party are irrelevant. [Citation.] The burden on the challenger is

particularly heavy when a facial constitutional challenge is presented. [Citation.]

The fact that the statute might operate unconstitutionally under some conceivable

set of circumstances is insufficient to render it wholly invalid. [Citation.] So long

as there exists a situation in which the statute could be validly applied, a facial

challenge must fail. [Citations.]” (Internal quotation marks omitted.) People v.

Rizzo, 2016 IL 118599, ¶¶ 23-24, 61 N.E.3d 92.

Additionally, as to challenges under the proportionate penalties clause, our supreme court has

recognized two types of challenges. See People v. Sharpe, 216 Ill. 2d 481, 521, 839 N.E.2d 492,

517 (2005). A defendant may argue the penalty for a particular offense is too severe, which is

judged under the “ ‘cruel or degrading’ standard.” Sharpe, 216 Ill. 2d at 521, 839 N.E.2d at 517.

A defendant may also challenge a penalty on the basis it is harsher than the penalty for a different

offense that contains identical elements. Sharpe, 216 Ill. 2d at 521, 839 N.E.2d at 517.

¶ 29 Defendant’s argument clearly raises a constitutional challenge under the identical

elements test. The identical elements test is completely objective. People v. Clemons, 2012 IL

107821, ¶ 46, 968 N.E.2d 1046. The court “does not make any subjective determinations regarding

the gravity of an individual offense or the severity of the penalty imposed for that offense.”

(Internal quotation marks omitted.) Clemons, 2012 IL 107821, ¶ 46. It “compares identical

offenses, as defined by the same legislative body, with their respective penalties, again, as given

by the same legislative body.” Clemons, 2012 IL 107821, ¶ 46. “This objective test does not

consider the offenses as applied to an individual defendant.” People v. Williams, 2015 IL 117470,

¶ 19, 43 N.E.3d 941. As such, a defendant cannot raise an as-applied challenge to a penalty under

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the identical elements test, and the facts of this case underlying the conviction for count V are

irrelevant to an identical elements analysis. See Williams, 2015 IL 117470, ¶ 19 (declining to

consider the defendant’s argument the statute was only unconstitutional as applied to him under

the identical elements test).

¶ 30 Recently, the Appellate Court, Second District, addressed a defendant’s argument

the statutes for predatory criminal sexual assault of a child and aggravated criminal sexual abuse

violate the proportionate penalties clause as applied to him. People v. Johanson, 2023 IL App (2d)

210690, ¶ 24. While it ultimately rejected the defendant’s argument, the Johanson court did find

support for the defendant’s argument in our decision in People v. Deckard, 2020 IL App (4th)

170781-U. Johanson, 2023 IL App (2d) 210690, ¶ 24. There, the defendant had argued three of

his convictions for predatory criminal sexual assault of a child violated the proportionate penalties

clause because those offenses, as charged, had the same elements as aggravated criminal sexual

abuse. Deckard, 2020 IL App (4th) 170781-U, ¶ 72. This court agreed with the defendant’s

argument and vacated those three predatory criminal sexual assault convictions and imposed three

convictions for the Class 2 felonies of aggravated criminal sexual abuse. Deckard, 2020 IL App

(4th) 170781-U, ¶ 72. However, as in this case, the defendant in Deckard had failed to identify

what type of proportionate penalties clause challenge he was raising, and Williams was not cited

by either party. Deckard, 2020 IL App (4th) 170781-U, ¶¶ 72-75. Regardless, as an order under

Illinois Supreme Court Rule 23 (eff. Apr. 1, 2018), our decision in Deckard is not precedential

authority. To the extent the Deckard decision’s mere existence suggests a defendant can raise an

as-applied proportionate penalties challenge under the identical elements test, we emphasize the

supreme court’s decision in Williams does not allow such a challenge.

¶ 31 Moreover, we agree with the State that defendant is not raising a facial challenge

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to the sentencing scheme for predatory criminal sexual assault of a child. Defendant makes no

argument the statute is unconstitutional under any set of facts. Defendant’s argument solely

addresses the facts of his case. Accordingly, we do not address whether the sentencing scheme for

predatory criminal sexual assault of a child is facially unconstitutional under the identical elements

test.

¶ 32 III. CONCLUSION

¶ 33 For the reasons stated, we affirm the Livingston County circuit court’s judgment.

¶ 34 Affirmed.

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 People v. Melvin, 2023 IL App (4th) 220385

Decision Under Review: Appeal from the Circuit Court of Livingston County, No. 20-CF-
116; the Hon. Jennifer H. Bauknecht, Judge, presiding.

Attorneys James E. Chadd, Douglas R. Hoff, and Melinda Grace Palacio, of
for State Appellate Defender’s Office, of Chicago, for appellant.
Appellant:

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

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