People v. Graf

2024 IL App (2d) 230013-U
No. 2-23-0013
Order filed February 1, 2024

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of McHenry County.
)
Plaintiff-Appellee, )
)
v. ) No. 18-CF-928
)
KEVIN F. GRAF, ) Honorable
) James S. Cowlin,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________

JUSTICE JORGENSEN delivered the judgment of the court.
Presiding Justice McLaren and Justice Kennedy concurred in the judgment.

ORDER

¶1 Held: The circuit court did not err in dismissing defendant’s postconviction petition at the
second stage. Affirmed.

¶2 After a bench trial, defendant, Kevin F. Graf, was convicted of one count of criminal sexual

assault (720 ILCS 5/11-1.20(a)(1) (West 2018)), two counts of criminal sexual abuse (720 ILCS

5/11-1.50(a)(1) (West 2018)), and one count of unlawful restraint (720 ILCS 5/10-3(a) (West

2018)). He was sentenced to four years’ imprisonment on the criminal-sexual-assault conviction

and two years’ conditional discharge on the criminal-sexual-abuse convictions. The circuit court

merged the unlawful-restraint conviction into the criminal-sexual-assault conviction. Defendant
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was ordered to pay restitution, undergo medical testing, and register as a sex offender. On direct

appeal, defendant challenged the sufficiency of the evidence against him and numerous evidentiary

rulings. This court affirmed. People v. Graf, 2021 IL App (2d) 200406-U.

¶3 On June 21, 2022, defendant filed a postconviction petition under the Post-Conviction

Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2020)). The petition advanced to the second

stage, and the circuit court dismissed the petition. Defendant appeals, arguing that the circuit court

erred in dismissing his petition, where (1) he made a substantial showing of actual innocence,

because new evidence and information not previously presented to the court concerning the

victim’s relationship with another man was discovered that in probability would have changed the

outcome of the case; (2) he established that his constitutional rights to due process and a fair trial

under Brady v. Maryland, 373 U.S. 83 (1963), were violated, where the prosecution withheld

evidence of the victim’s accusations and investigation against another man; (3) he made a

substantial showing that he was denied effective assistance of trial counsel, where counsel failed

to present available evidence concerning a forensic examination of defendant’s phone records and

to preserve evidentiary and constitutional errors for appeal; and (4) he established that his rights

under Brady were violated, where the State withheld the results of the forensic evaluation of his

phone records. We affirm.

¶4 I. BACKGROUND

¶5 The State alleged that, on September 17, 2018, defendant committed criminal sexual

assault, where, by use of force, he stuck his hand up Jessica V.’s shorts and digitally penetrated

her vagina. It further alleged that defendant committed two counts of criminal sexual abuse, where,

by use or threat of force, he, either directly or through clothing, knowingly fondled Jessica’s breasts

and touched his sex organ to her buttocks. Finally, the State alleged that defendant committed

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unlawful restraint, where he, knowingly and without legal authority, grabbed Jessica from behind

and placed her in a headlock and held her to the floor.

¶6 A. Trial

¶7 At trial, Jessica testified that she met defendant in April 2018 via a dating app, they started

out as friends, and, shortly thereafter, started “casual dating.” On Sunday, September 16, 2018,

she and defendant went to Sweet Melissa’s bar in Lakemoor, where they watched a football game

and had a “couple” of drinks. They left the bar at 5:30 p.m. and went to Jessica’s home, where

they played video games until the following morning.

¶8 At about 6 a.m. on Monday, September 17, 2018, Jessica stood, playing video games in

front of her television, and defendant watched her play. Defendant then came up behind her and

tried to give her a bear hug, but Jessica asked him to stop because she wanted to play the game.

Defendant sat back down on the couch. He watched Jessica play for about 5 or 10 minutes and

then came up behind her and knocked the game controller out of her hand. Jessica turned around,

and “it turned into like physical[ly] going at me to try and like take me down, and I turned around

and tried to not let that happen and we had got onto the ground, carpet area[.]” Jessica was on her

hands and knees, and defendant was behind her. They wrestled, defendant tried to keep both of

Jessica’s legs together, and she tried “to maneuver out.” Defendant held up Jessica’s left arm, and,

with his other arm, he tried to put her in a hold. He then tried several times to pull down Jessica’s

shorts. According to Jessica, she said, “several times,” “Kevin, no, stop” and “Kevin, what are

you doing?” She kept trying to pull up her shorts. Defendant then:

“went into my shorts from below and then maneuvered my underwear and started

to penetrate me [with his finger] in my vaginal area and I was asking him to stop, and any

time I tried to move my hips or legs, then he would go and grab my breast area, all while

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he was thrusting behind me and I’m just hearing him breathing and I was asking him to

stop and he’s not stopping.”

Defendant penetrated her for about 10 minutes, and he kept thrusting and trying to hold down

Jessica’s left arm to keep her on her stomach on the carpet. She felt his erection near her “butt”

area.

¶9 Jessica turned onto her knees and stood. Defendant also stood, grabbed her by the neck,

had her head down into a hold (for about one minute), and started to choke her. Jessica testified

that she felt that she could not breathe and that things got “black and foggy.” She put her right leg

behind defendant’s leg and tried to make him lose his balance. They both fell, because defendant

continued to hold onto Jessica’s neck. Jessica fell onto her knee and elbow, and defendant fell

back into the closet area in her kitchen. Jessica asked defendant to leave several times and told

him that she was going to call the police. Defendant left.

¶ 10 About two hours later, at around 8:30 a.m., defendant texted Jessica. She did not respond.

The next day, defendant texted her again, and she did not respond. On Wednesday, September 19,

2018, defendant texted Jessica again, and she responded. He never tried to call her.

¶ 11 Also on Wednesday, Jessica went to the police and showed them the text messages. The

police took photographs of Jessica. She stated that they depicted scratch marks near her ear and

neck areas and testified that she sustained injuries while defendant was choking her. Another

photograph depicted burn marks on her knees that she testified she sustained trying to get away

from defendant. Jessica also described a bruise on her elbow that she sustained when she and

defendant fell after she used her leg to make him lose balance.

¶ 12 Jessica denied laying down sexual “ground rules” when she and defendant started dating

in May 2018. She also denied that they had a habit of play fighting. When asked if she wrestled

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with defendant, she replied, “We played sports and, yeah, we like playfully in the—in like the

living room area, yes[.]” Jessica could not recall the first time that she play wrestled with

defendant. Jessica could not recall the first time she had sex with defendant, but it was probably

the end of May or beginning of June 2018. She could not recall if she play fought with him that

first time they had sex.

¶ 13 Lakemoor police officer Eric Francke testified that, on Wednesday, September 19, 2018,

he responded to a dispatch at the police department to meet with Jessica, who wanted to make a

report about being sexually assaulted by defendant. Another officer took photographs of the

bruising on Jessica’s body. Officer Francke took photos of her text messages, and Jessica provided

a written statement.

¶ 14 On September 20, 2018, officer Francke went to defendant’s house and asked defendant to

come to the police department to talk. Defendant complied. Defendant was placed in an interview

room, and the interview was audio and video recorded. The recording was entered into evidence

and played.

¶ 15 Officer Francke testified that defendant told him that the couple was having drinks at Sweet

Melissa’s and watching football. Afterward, they went to Jessica’s house to hang out and play

video games. In the morning, defendant tried to wrestle with Jessica “and was wrestling as he said

they always do and that it got into where he digitally penetrated her and grabbed her and held her.”

Defendant told officer Francke that he put Jessica in a head lock with her head in his elbow and

pulled her down and tried to pull off her shorts. Defendant also stated that Jessica told him to “let

go” and “no.” They continued to wrestle and, eventually, defendant got up and left. Defendant

tried to contact Jessica several times afterward via text messages and phone calls, but she did not

respond until Wednesday. Defendant showed officer Francke the text messages on his phone, and

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Francke took photos of the messages, which were admitted into evidence. Defendant also agreed

to provide a written statement, which was also admitted into evidence.

¶ 16 On cross-examination, officer Francke testified that, when defendant stated during the

interview that he knew he got his “hand in there,” Francke did not ask him what he meant by

“there,” because he was already relating having his hand up Jessica’s shorts. Francke understood

defendant to mean the shorts and Jessica’s vagina. Further, the closest defendant came to admitting

he digitally penetrated Jessica’s vagina was when he said, “If Jessica said I did, I probably did.”

When shown a copy of his report and asked where it stated that defendant admitted he put his

finger in Jessica’s vagina, officer Francke stated, “I’m sorry, this is where I thought it was, but I

had put in here that he said that he probably did.” Defendant was very cooperative during the

interview.

¶ 17 On re-direct, officer Francke testified that defendant denied that he “fingered” Jessica for

five minutes, as Jessica had stated, and he said that it was only for about 10 seconds. Defendant

stated that his hand went up Jessica’s shorts.

¶ 18 During the interview, defendant admitted that he put his finger in Jessica’s vagina.

Defendant stated that “I guess I went too far.” He was trying to “finger” Jessica, and she said no.

“I know it’s wrong,” and “I feel horrible about it.” Defendant also stated, “I will take her word for

it,” in reference to whether his finger penetrated her vagina. When asked if he tried to pull down

Jessica’s shorts, defendant responded that, if Jessica said he did, then “I must have.” When officer

Francke stated that defendant had already admitted the “biggest thing,” that he had stuck his finger

in Jessica’s vagina, defendant replied, “yeah.” Defendant also admitted, unprompted, to groping

Jessica’s breasts. He also agreed that Jessica “said no” and “she had been saying no.” “I know it

was wrong and I feel horrible about it.” He could not recall everything that transpired that evening

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because he was tired and had “polished off a bottle of Jameson.” “If she says she got my hand

away, I fully believe her story[.]” Defendant stated that he had his “wires crossed” and, thus, did

not react appropriately to Jessica’s rejections.

¶ 19 In his written statement, defendant wrote that, after he hit his head in the kitchen, the couple

stood and that Jessica asked him to show her a guillotine hold. He demonstrated it, but wrote that

he did not “squeeze hard.” They had flirted all night and, once they moved to the living room,

they laid on the floor and play wrestled. Defendant tried to “play with her” while they wrestled.

Jessica did not indicate that anything was “unwarranted.”

“I got my hands down to her pants and attempted to take them down a little bit. No

skin was showing. I then moved my hand down below her shorts and put one finger

between her shorts and vagina. I do not believe any penetration happened at that point.

She pushed my hand away and asked me to stop. I did and we both got up and went back

to her kitchen where she told me I should go and get some rest before work.”

Defendant sent Jessica a text after he arrived home, and she did not reply to it. He sent more texts

in the following days and received no responses to those texts. He asserted that he

has “never physically harmed or threatened to commit physical harm” to Jessica. On September

19, 2018, Jessica texted defendant that his actions were “unwarranted, to which I replied how sorry

I was and how truly devastated I was with that knowledge.”

¶ 20 Defendant sent Jessica several texts in the days after the incident. At 9:35 a.m. on

Wednesday, September 19, 2018, Jessica sent her first text response, writing, “Kevin I was saying

no and to stop and you were still trying to get in my pants and did get in my pants and did get your

finger in me all while I was saying no and to stop and turning away. That’s not okay.” Defendant

responded, “I’m sorry [J]ess. I should’ve realized. I was only being playful. I am very truly

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sorry[,]” “It is not ok. I’m so sorry. I’m ashamed of my self now[,]” and “There’s nothing I can

do to make up for that. I’m so so sorry. I understand if you can’t forgive me. I don[’]t deserve

it[,]” and “I’m horrified and disgusted with myself. I’ve never done anything like that before, and

I’m going to always continue to strive to never do anything that stupid again. I’m sorry Jessica.

I’ll stop now. I never meant to hurt you.” Jessica replied, “It’s not playful when I am trying to

pull my pants up, trying to block your hand, saying no and to stop, and then you went from the

bottom of my shorts anyway[.]” Defendant responded, “I know. I’m so sorry Jess. It’s something

I’ve never done and will never do again. I hate myself for this. There’s no excuse for it at all. I’m

disgusted with myself and how I carried on. I know there’s no foregiveness for this. Fuck I hate

myself now. I know. I want to bring myself in to the police because of this. This is horrible and

I feel horrible.”

¶ 21 During his testimony, defendant, age 27, stated that his first date with Jessica was on May

12, 2018, and, during the date, she brought up the “ground rules.” On their second or third date,

in late May, they wrestled. They had fun. One week later, they wrestled again in Jessica’s

apartment. They had fun. Defendant testified about their first two sexual encounters, explaining

that they were preceded by play wrestling. He stated that at no point in their relationship did

Jessica state that she did not want to play wrestle with defendant. Nearly every time, she initiated

the play wrestling, and she asked defendant what a choke hold was and how to get out of it.

¶ 22 On Monday, September 17, 2018, at about 5 a.m., defendant got up to take his cup to the

kitchen and Jessica followed. He hugged Jessica, and she brought him to the ground by sweeping

his leg out from under him. They were play fighting, and defendant believed they were having

fun. He continued wrestling and “messing around.” Defendant got up, and they ended up facing

each other. Jessica grabbed his shoulders and pushed defendant back, at which point, he slammed

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his head against a kitchen cabinet door. He thought it was funny. The couple moved to the living

room.

¶ 23 The couple lay on the floor, facing each other and with defendant’s head at about Jessica’s

shoulder level. They hand wrestled, pushing against each other, and Jessica’s right leg was draped

over defendant’s left leg. The couple took 20-minute breaks from wrestling about every 5 or 10

minutes. During a break, defendant put his hand on Jessica’s stomach and “started to slowly move

it down to her pant level[.]” He testified that they were “playfully flirting” throughout the night

and “that some sexual advances had been made.” According to defendant, “I was trying to put my

hand in her pants to put my fingers in her vagina.” He did not put his hand in Jessica’s shorts,

because she moved her hand to brush his away and defendant put his hand on his side. Jessica did

not say anything, nor did defendant.

¶ 24 They continued talking and wrestling. Defendant again tried to put his hand up her shorts,

“but I never got fully inside. I had a couple of fingers inside like the short level where shorts

would be there and then—” (The shorts line was between his first and second knuckles.) He was

attempting to put his fingers in Jessica’s vagina, but Jessica brushed away defendant’s hand and

told him to stop. According to defendant, prior to this time, Jessica had not said “stop” or “no” or

“what are you doing.” Defendant moved his hand away and started to get up. He testified that he

did not make contact with Jessica’s vagina or her panty line, though he was unaware if she was

wearing panties. Defendant also testified that Jessica did not use any kind of strength to brush

away his hand. Once he started standing, defendant made a joke to try to lighten the situation.

He said he was going to go home. Defendant does not believe that he used force to create a sexual

encounter. Up until the time Jessica said “no,” defendant believed she was a willing participant,

because she was play fighting with him and laughing and they were having a good time. She never

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cried. “[S]he didn’t seem visibly or physically upset in any way.” Defendant gathered his

belongings, gave Jessica a hug, kissed her on the cheek, and said that he was leaving. Defendant

left between 6:30 and 7 a.m. At that point, Jessica did not appear to be upset.

¶ 25 A few days later, Lakemoor police contacted defendant, and he went to the police station.

He provided oral and written statements. He denied telling officer Francke that his finger was

inside of Jessica’s vagina for 10 seconds. (This testimony was contrary to the video.) Defendant

also testified that his finger was never inside of Jessica’s vagina at any point on September 16 or

17. When he told police that he was able to get his hand “up there,” he meant Jessica’s upper thigh

and inside her shorts. By “in there” he meant inside her pant line.

¶ 26 On cross-examination, defendant testified that he spent about three hours at the police

station. He had not slept in over 48 hours when he was interviewed. He never told the officer

about prior incidences when he would play wrestle and how that would lead to sex. “I was dead

asleep at that point.” Defendant stated that he did not fully recall everything he told the officer.

¶ 27 Defendant told officer Francke that he groped Jessica’s breasts, but testified that he did not

actually do so and made the statement to police, because “I believed what she had told me that I

did.” He knows he did not do it, but he admitted to the act, because he felt bad about doing what

Jessica claimed he did. He admitted that, in her texts, Jessica did not mention the groping and the

officer did not ask about it; rather, defendant, unprompted, brought it up. Defendant further

testified, “that was the start of the Me Too movement” and “I didn’t actually do any of that,” but

“I felt horrible cause of that whole—the Me Too stuff. I didn’t want to be a part of any of that.”

Defendant explained that he turned himself in, because he felt bad about how Jessica perceived

what happened and because he was scared. However, he conceded that he did not first contact the

police to turn himself in.

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¶ 28 The circuit court found defendant guilty on all counts. It noted that the issue in the case

was the parties’ credibility, and it found Jessica’s testimony credible and defendant’s testimony

incredible. The court also mentioned (1) Jessica’s text that she kept saying no and to stop, but that

defendant kept trying to get in her shorts and did get his finger in her; (2) defendant’s response

that he was sorry and that it was not okay; (3) defendant’s statement to police that he got his hand

under Jessica’s shorts; and (4) the photographs of Jessica’s bruises, which the court found were

not “playful bruises.” The court further noted that defendant essentially admitted at least part of

the offense, but said he did not mean it because he was too tired to know what he was saying. “I

believe that he did know what he was saying.” The court found that Jessica said “no” several

times. It also took judicial notice of defendant’s size (“He’s a large man”) and Jessica’s size and

found that, based on the parties’ sizes and Jessica’s bruises, she was held against her will. It also

determined that defendant placed his finger in Jessica’s vagina, knowingly fondled her breasts,

placed his sex organ on her buttocks, and was guilty of unlawful restraint.

¶ 29 B. Direct Appeal

¶ 30 On direct appeal, this court affirmed. Graf, 2021 IL App (2d) 200406-U. We (1) rejected

defendant’s challenge to the sufficiency of the evidence; (2) rejected his challenge to many

evidentiary rulings on the basis that they were forfeited for failing to be raised in his posttrial

motion; (3) rejected his plain-error argument on the bases that the evidence against him was

overwhelming and did not constitute prong two plain error; (4) rejected his argument concerning

limitations on his testimony on the basis that he did not make an offer of proof; (5) concluded that

any error in excluding certain choke-hold testimony was harmless; and (6) rejected his cumulative

error argument.

¶ 31 C. Postconviction Proceedings

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¶ 32 On June 21, 2022, defendant filed a postconviction petition, arguing that (1) he was

innocent of the crimes for which he was convicted because new evidence concerning Jessica’s

relationship with another man has been discovered that in all probability would have changed the

outcome of the trial; (2) the prosecution violated Brady by failing to disclose new evidence

concerning Jessica’s relationship with another man; (3) he was denied effective assistance of trial

counsel, where, among other arguments, counsel failed to offer and admit available evidence

concerning a forensic examination of defendant’s phone records; and (4) the prosecution violated

Brady by failing to disclose the phone records.

¶ 33 As to his actual-innocence allegations, defendant asserted that he had discovered that

Jessica was harassing another man, Brandon Fuchs, at the time of defendant’s trial and had sought

a stalking/no-contact order against him (a copy of which was attached to his petition). Defendant

characterized Jessica’s allegations against Fuchs as “nonsensical accusations” that displayed

mental health and credibility issues and argued that her actions against Fuchs mirrored those

against him and undercut her credibility.

¶ 34 Jessica’s petition, filed on March 9, 2020, in the circuit court (case No. 2020OP153),

asserted that, between February 27, 2020, and March 8, 2020, Fuchs tracked her messages and

whereabouts. He also claimed, per a coworker, that he was Jessica’s boyfriend and lost his

virginity to her. Jessica also related purchasing a Monster-brand caffeine drink at work and that

Fuchs told her over the phone and via text that he owed her for the drink because he felt bad that

he kept her up. She asserted that she told no one about purchasing the caffeine drink, and, when

she asked Fuchs about it, he stated that he did not know; he was not at work that day. Jessica also

stated that Fuchs tracked her activities at work on days he did not go to work; she changed the SIM

card on her phone to prevent him from tracking her; and she believed he had access to her Gmail

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account. On March 9, 2020, the trial court found that Jessica had not presented credible evidence

to meet the statutory burden of proof for an emergency stalking/no-contact order, and it set the

case for hearing on March 23, 2020. In March, the court dismissed the petition for want of

prosecution. Neither Jessica nor Fuchs was present in court.

¶ 35 Defendant also alleged that new information was provided by Fuchs.1 Specifically, Fuchs

reported that he worked with Jessica at Walgreens, and they developed a social relationship. After

a sexual encounter, Fuchs referred to himself as Jessica’s boyfriend, but she became hostile upon

hearing this and stated that he was not her boyfriend. Jessica broke off contact with Fuchs and

attempted to get him fired from Walgreens. The foregoing, defendant argued, showed that there

was a pattern to Jessica’s behavior, and she was not credible.

¶ 36 In his first Brady claim, defendant argued that the Lakemoor police were aware of Jessica’s

allegations against Fuchs but did not disclose them to defendant so that he could proceed with

posttrial motions. In his ineffective-assistance claim, defendant argued that trial counsel became

aware of a forensic analysis that had been performed on defendant’s phone (containing over 7000

text messages between defendant and Jessica) but relied on the State’s representation that there

was nothing exculpatory in the data and did not independently investigate the issue. Finally, in his

second Brady claim, defendant argued that his rights were violated because the State did not

disclose the results of the forensic evaluation of his phone, asserting that the results constituted

material, favorable evidence that would have supported his defense at trial.

1
In the petition, postconviction counsel asserted that Fuchs would sign an affidavit

reflecting such information. Subsequently, defendant attached such affidavit, dated June 23, 2022,

to his response to the State’s motion to dismiss his petition.

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¶ 37 On September 13, 2022, the circuit court determined that defendant’s ineffective-assistance

claim stated the gist of a constitutional violation, and the petition advanced to stage two. The

State, on September 19, 2022, moved to dismiss defendant’s petition, and, on December 15, 2022,

the circuit court dismissed the petition at the second stage. Defendant appeals.

¶ 38 II. ANALYSIS

¶ 39 Defendant argues that the circuit court erred in dismissing his petition, where (1) he made

a substantial showing that he is actually innocent of the crimes for which he was convicted, because

new evidence and information not previously presented to the court has been discovered that in

probability would have changed the outcome of the case; (2) he established a Brady violation,

where the prosecution withheld evidence of Jessica’s accusations and investigation against Fuchs;

(3) he made a substantial showing that he was denied effective assistance of trial counsel, where

counsel failed to present readily available evidence concerning his phone records and to preserve

evidentiary and constitutional errors for appeal; and (4) he established a Brady violation, where

the State withheld the results of the forensic evaluation of his phone records. For the following

reasons, we reject defendant’s arguments.

¶ 40 The Act allows a criminal defendant to attack a prior conviction by establishing that it was

the result of a substantial deprivation of rights afforded by the United States or Illinois

constitutions. 725 ILCS 5/122-1(a)(1) (West 2020). It establishes a three-stage process for the

adjudication of postconviction petitions. People v. Boclair, 202 Ill. 2d 89, 99 (2002). At the first

stage, the circuit court independently assesses the petition to determine whether the allegations

contained in it, when liberally construed and taken as true, present the gist of a constitutional claim.

Id. If so, the petition advances to the second stage, where counsel is appointed to represent the

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defendant and, if necessary, to file an amended petition. People v. Gaultney, 174 Ill. 2d 410, 418

(1996); 725 ILCS 5/122-4, 122-5 (West 2020).

¶ 41 At the second stage, the State must either move to dismiss or answer the claims in the

petition. Gaultney, 174 Ill. 2d at 418. Only if the petition and accompanying documentation make

a substantial showing of a constitutional violation will that claim proceed to the third stage, an

evidentiary hearing on the merits. People v. Silagy, 116 Ill. 2d 357, 365 (1987); 725 ILCS 5/122-

6 (West 2020). The court engages in no fact-finding or credibility determinations at the second

stage but takes as true all allegations not affirmatively rebutted by the record. People v. Dupree,

2018 IL 122307, ¶ 29. It is concerned with “the legal sufficiency of the petition’s well-pled

allegations of a constitutional violation”—i.e., whether the allegations “if proven at an evidentiary

hearing, would entitle [the] petitioner to relief.” (Internal quotation marks omitted.) Id.

¶ 42 A postconviction proceeding is a collateral attack on a prior conviction that permits

defendants to challenge their convictions or sentences based on actual innocence or a substantial

violation of their federal or state constitutional rights. People v. Swamynathan, 236 Ill. 2d 103,

113 (2010). Postconviction claims are limited to matters that were not and could not have been

previously adjudicated. Id. Our review of the dismissal of a postconviction petition at the second

stage is de novo. Dupree, 2018 IL 122307, ¶ 29.

¶ 43 A. Actual Innocence

¶ 44 Defendant argues first that the circuit court erred in dismissing the petition, where he made

a substantial showing of actual innocence based on new, material, and conclusive evidence that

would probably change the result on retrial. He points to (1) Jessica’s “manifesto” (i.e., her

assertions in her verified petition stalking/no-contact order), asserting it shines new light on her

character and credibility, along with the court’s dismissal of her false accusations against Fuchs

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before defendant’s trial had ended; and (2) Fuchs’s account, which, he asserts, sheds light on

Jessica’s motive through a parallel situation to this case in which she was dishonest.

¶ 45 The evidence supporting an actual-innocence claim must be (1) new, (2) material and

noncumulative, and (3) of such a conclusive character that it would probably change the result on

retrial. People v. Robinson, 2020 IL 123849, ¶ 47; People v. Coleman, 2013 IL 113307, ¶ 96.

“New means the evidence was discovered after trial and could not have been discovered earlier

through the exercise of due diligence.” Coleman, 2013 IL 113307, ¶ 96. “Material means the

evidence is relevant and probative of the petitioner’s innocence.” Id. To be material, the evidence

“need not, standing alone, exonerate the defendant; rather, it must tend to ‘significantly advance’

his [or her] claim of actual innocence.” People v. Stoecker, 2014 IL 115756, ¶ 33. “Noncumulative

means the evidence adds to what the jury heard.” Coleman, 2013 IL 113307, ¶ 96. Conclusive

means that the additional evidence, “when considered along with the trial evidence, would

probably lead to a different result.” Id. “Probability, not certainty, is the key ***.” Id. ¶ 97. A

piece of new evidence is conclusive if it “would probably change the result on retrial, either by

itself or in conjunction with” other new evidence also presented by the petitioner. People v.

Sanders, 2016 IL 118123, ¶ 53; see Coleman, 2013 IL 113307, ¶¶ 104-08 (considering together

the statements of all the new witnesses presented by defendant). “[T]he conclusiveness of the new

evidence is the most important element of an actual innocence claim.” Sanders, 2016 IL 118123,

¶ 47.

¶ 46 In his postconviction petition, defendant asserted that, contrary to her victim impact

statement, Jessica was in a relationship with Fuchs prior to and during the trial in his case. Further,

just days after the verdict, on March 9, 2020, but before sentencing, and unknown to the court,

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Jessica had approached Lakemoor police, seeking an order of protection against Fuchs. The court

refused to grant the order of protection and found that Jessica’s allegations were not credible.

¶ 47 Defendant asserted that Jessica wrote in her petition “nonsensical accusations [against

Fuchs], displaying both obvious mental health and severe credibility issues.” As examples, he

related that, on February 29, 2020, the day after defendant was found guilty, Jessica wrote that she

texted Fuchs, stating that he was confused and he had never been her boyfriend, nor had she taken

his virginity. She also wrote that, on March 2, 2020, she purchased a Monster caffeine drink at

work, spoke to Fuchs that day, and Fuchs mentioned owing her for the Monster. Based on this,

she claimed that Fuchs was stalking her because he was not at work that day. (They both worked

at Walgreens.) According to defendant, Jessica also claimed that Fuchs was causing her cell phone

to not work properly and hacked her Gmail account. She also claimed on March 6, 2020, that

Fuchs had control over her phone and could see everything she was doing. Jessica contacted

Lakemoor police and filed a report. She sought an order of protection, and the circuit court refused

to grant it, finding that Jesscia had not presented credible evidence to meet the burden of proof.

The court set the matter for hearing on March 23, 2020. On that date, the case was dismissed for

want of prosecution. Jessica did not attend the hearing.

¶ 48 None of the foregoing, defendant asserted in his petition, was known to the circuit court in

this case. Nor was the new evidence presented by Fuchs. Specifically, defendant asserted, Fuchs

worked with Jessca at Walgreens, and they developed a social relationship over time. They

engaged in sexual intercourse on February 14, 2020, and, afterwards, Fuchs referred to himself as

her boyfriend. Upon hearing this, Jessica became hostile and told Fuchs that he was not her

“boyfriend.” Jessica then broke off contact with Fuchs and tried to get him fired from Walgreens.

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Just days after the circuit court in this case found her credible, the court in her order-of-protection

case found her incredible. Defendant asserted that there was a pattern in Jessica’s behavior.

¶ 49 Defendant noted that Jessica appeared to be triggered by the word “boyfriend” in Fuchs’s

case. In defendant’s case, she described their relationship as “casual dating.” Further, in Fuchs’s

case, Jessica reported calling her therapist because Fuchs was controlling and threatening her life.

The therapist got the police involved. In defendant’s case, Jessica told police that she called her

therapist after defendant left her home. However, defendant asserted, she did not do so because

the therapist “surely” could have contacted the police. She lied to police about calling her therapist,

according to defendant, to add credibility to her claims that she was assaulted by defendant.

¶ 50 The circuit court rejected defendant’s actual-innocence claim, finding that his assertion that

Jessica was found not credible in the stalking case was a “mischaracterization” and that the failure

to present credible evidence is distinguishable from being found not credible. Further, the court

found that Jessica’s action against Fuchs would not have been admissible at defendant’s trial or

result in granting a new trial based on a posttrial motion. The circuit court pointed to this court’s

decision in defendant’s direct appeal, wherein we referenced (in support of our conclusion that the

evidence was overwhelming) defendant’s apology text messages and his videotaped admissions to

the police, and the circuit court found they “proved the case against him. *** The reality is

defendant supplied all the evidence necessary to convict himself.”

¶ 51 Here, defendant contends the circuit court erred in finding that the new evidence was not

material. The new evidence, he maintains, parallels Jessica’s attack on defendant and shows that

she contrived false accusations against him. It was material when a pivotal issue at trial, he

contends, was her credibility. It also shows a motive to lie, where, after engaging in a sexual

relationship with “ground rules” and after he did not return her sentiment when she said she loved

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him,2 Jessica went to the police with allegations against defendant. Similarly, she engaged in sex

with Fuchs and was manipulative when her sentiments on the status of their relationship did not

align with his. Defendant also asserts that this evidence would have been admissible to show

motive, to impeach Jessica at trial, and to show her state of mind.

¶ 52 Defendant also argues that the trial court erred in finding that the new evidence is not

conclusive. He suggests that the only evidence presented against him was provided by Jessica and

that he was found guilty because the court found Jessica to be credible. Defendant contends that

the circuit court’s reliance on his text messages and videotaped admission was erroneous because

that evidence actually showed his state of mind that he was hoping to rekindle his relationship with

Jessica and that he was exhausted and scared when he spoke to police. He asserts that he was

unaware that Jessica did not consent.

¶ 53 The State responds that, at best, the evidence provides incremental impeachment value

against Jessica’s general credibility but does not directly refute the details of her account or

otherwise establish defendant’s innocence. It is circumstantial evidence, it asserts, about her

general credibility, and does not conclusively establish defendant’s innocence. Nor does it account

for defendant’s contemporaneous statements apologizing to Jessica and expressing remorse to

police after the incident. These damning admissions, the State argues, strongly refute defendant’s

actual-innocence claim.

¶ 54 We conclude that defendant failed to make a substantial showing of actual innocence. The

evidence concerning Fuchs was neither material nor conclusive. At best, it somewhat impacted

2
At trial, the court sustained an objection to defendant’s testimony that Jessica told him she

loved him around 4 a.m. on September 17, 2018.

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Jessica’s credibility, but ultimately would not have had any bearing on the outcome because, as

we noted in our decision in the direct appeal, the evidence against defendant was overwhelming:

“This case does not merely involve two witnesses with conflicting testimony, a

scenario that is generally characterized as presenting a close case. See Edwards v. Hill-

Thomas Lime & Cement Co., 378 Ill. 180, 183 (1941) (“The above reference to the

conflicting testimony, and the respective theories and contentions of the parties on the

record, demonstrates that the case was close on the facts and was one which the jury might

have decided either way.”). Rather, here, we have the added elements of: (1) defendant’s

contemporaneous apology text messages; and (2) his near-contemporaneous videotaped

admissions to police (which were consistent with Jessica’s version of the incident). This

evidence rendered incredible his trial denials, especially when considered in conjunction

with his attempt to explain the inconsistencies between his trial denials and his

contemporaneous admissions—specifically, that he chose to lie (and face potential

incarceration) because he did not want to paint Jessica as a liar and that he felt horrible

because of what Jessica ‘perceived’ happened. His attempted explanation was

unbelievable and reflects a self-serving desperation to avoid punishment. Given

defendant’s lack of credibility and the consistency between Jessica’s version of the events

and defendant’s admissions, we can only conclude that the evidence against defendant was

overwhelming.” People v. Graf, 2021 IL App (2d) 200406-U, ¶ 84.

¶ 55 Thus, defendant is incorrect that the only evidence presented against him was provided by

Jessica and that he was found guilty because the court found Jessica to be credible. Also, there are

insufficient parallels between Jessica’s accusations against defendant and her allegations against

Fuchs. The allegations against Fuchs centered on him allegedly listening to her calls and knowing

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her whereabouts. In contrast, the allegations against defendant led to convictions for criminal

sexual assault, criminal sexual abuse, and unlawful restraint, based, in part, on his admissions to

police and his text messages.

¶ 56 Further, we reject defendant’s argument that the circuit court’s reliance on his text

messages and videotaped admission was erroneous because that evidence showed his state of mind

that he was hoping to rekindle his relationship with Jessica and that he was exhausted and scared

when he spoke to police and was unaware Jessica did not consent. These arguments were raised

and rejected below and on direct appeal. The evidence of Jessica’s allegations concerning Fuchs

does not call into doubt the result of the trial.

¶ 57 B. Brady Claim – Allegations Against Fuchs

¶ 58 Next, defendant argues that the circuit court erred in dismissing the petition, where he

established that a Brady violation occurred when the prosecution withheld evidence of Jessica’s

accusations and the investigation against Fuchs, the factual basis for which occurred before

sentencing in defendant’s trial. The same agency that investigated defendant’s case-the Lakemoor

police department—investigated Jessica’s case against Fuchs, defendant notes. Thus, he reasons,

it was aware of Jessica’s allegations against Fuchs. Defendant argues that, as the case turned on

credibility, the police and prosecution were required to disclose the information to him so that he

could proceed accordingly with appropriate posttrial motions. Defendant further asserts that the

circuit court erred in determining that the evidence was not exculpatory for him and impeaching

of Jessica. The court, defendant argues, failed to ascertain that, after establishing relationships

with defendant and Fuchs, Jessica turned on them and made false allegations.

¶ 59 The State responds that the evidence regarding Jessica’s allegations against Fuchs does not

constitute exculpatory or impeaching material and that defendant cannot establish that it was

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suppressed or that prejudice resulted from any nondisclosure. Defendant’s apology texts and

statements to police, it contends, are still very persuasive evidence of guilt, even considering the

Fuchs allegations. Also, it asserts that the Fuchs evidence does not directly undermine the existing

strong evidence against defendant, and there are strong factual differences between the two

situations that diminish the impeachment value here. The State further argues that there is no

evidence that the prosecution suppressed the evidence regarding Fuchs or that it was aware of

them.

¶ 60 In Brady, the United States Supreme Court held that “the prosecution must disclose

evidence that is favorable to the accused and ‘material either to guilt or to punishment.’ ” People

v. Harris, 206 Ill. 2d 293, 311 (2002) (quoting Brady, 373 U.S. at 87). To succeed on a Brady

violation claim, a defendant must establish “(1) the undisclosed evidence is favorable to the

accused because it is either exculpatory or impeaching; (2) the evidence was suppressed by the

State either wilfully or inadvertently; and (3) the accused was prejudiced because the evidence is

material to guilt or punishment.” People v. Beaman, 229 Ill. 2d 56, 73-74 (2008). “Evidence is

material if there is a reasonable probability that the result of the proceeding would have been

different had the evidence been disclosed.” Id. at 74. To establish materiality, a defendant must

show that “the favorable evidence could reasonably be taken to put the whole case in such a

different light as to undermine confidence in the verdict.” Kyles v. Whitley, 514 U.S. 419, 435

(1995). The Brady rule extends to favorable evidence “known only to police investigators and not

to the prosecutor” trying the case. Id. at 438; Beaman, 229 Ill. 2d at 73.

¶ 61 We reject defendant’s argument. As we discussed above in addressing his actual-

innocence claim, the evidence concerning Jessica’s allegations against Fuchs was not material or

conclusive. Further, defendant cannot establish that the evidence is either exculpatory or

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impeaching or that it was material so as to undermine confidence in the verdict (or sentence). The

insufficient parallels between defendant’s case and the allegations against Fuchs do not, in light of

the overwhelming evidence against defendant, convince us that defendant made a substantial

showing of a Brady violation.

¶ 62 C. Ineffective Assistance of Trial Counsel

¶ 63 Next, defendant argues that the circuit court erred in dismissing his petition, where the

petition made a substantial showing that he was denied effective assistance of trial counsel when

counsel failed to present readily available evidence and preserve evidentiary and constitutional

issues for appeal. First, defendant contends that the circuit court made erroneous evidentiary

rulings that trial counsel failed to challenge at trial and/or in his posttrial motion and this court

found forfeited as a result. He contends that counsel’s errors resulted in this court reviewing the

issues for plain error, as opposed to conducting a “less burdensome” (for defendant) harmless-

error analysis. Second, defendant argues that trial counsel was deficient for failing to investigate

over 7000 text messages between him and Jessica (prior to her allegations against him) that would

have shown that his interaction with her on September 17, 2018, was consensual. He contends

that counsel knew a forensic examination had been conducted on his phone and had reason to

know that there would be materially favorable evidence therein, but rather than listening to

defendant and investigating the evidence, counsel accepted the prosecutor’s word that the

examination contained nothing exculpatory. Without providing specific information, defendant

contends that the forensic examination results contained statements by Jessica that could have led

to discoverable evidence and/or provided “ammunition” for cross-examination. There is no

justification, he argues, for trial counsel’s failure to offer and admit the evidence, as this case

focused on defendant’s and Jessica’s credibility. Defendant contends that he would have shown

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that Jessica had instructed him that, while she may say “no” or “stop” during foreplay, those words

did not have their normal meaning and did not mean for defendant to cease foreplay. Further, he

asserted that he would have shown that Jessica asked him to choke her on multiple occasions

during foreplay and, during the incident, Jessica asked him to place her in a guillotine chokehold

(to which he did, and she did not object). The factfinder would also have benefited, he posits,

from hearing that Jessica told defendant that she loved him and that he did not return the sentiment.

¶ 64 To prevail on a claim of ineffective assistance of counsel, defendant must demonstrate that

counsel’s representation “fell below an objective standard of reasonableness” and that such a

shortcoming was prejudicial in that “there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Strickland v.

Washington, 466 U.S. 668, 687-94 (1984); People v. Albanese, 104 Ill. 2d 504, 526-27 (1984)

(adopting Strickland).

¶ 65 We conclude that the circuit court did not err in finding defendant’s arguments unavailing.

As to the argument that trial counsel failed to preserve various evidentiary rulings, this court, on

direct appeal, held that, even if there was error as to the trial rulings concerning Jessica’s testimony

(specifically, barring testimony from defendant and Jessica that she consented and barring her from

testifying on cross-examination that she had asked defendant to place her in a choke hold on prior

occasions), there was no plain error because the evidence against defendant was overwhelming.

Defendant now cannot claim that, but for counsel’s errors, the results would have been different

under a harmless-error analysis, where the burden is on the State. See People v. Thurow, 203 Ill.

2d 352, 363 (2003) (under the first prong of the plain-error rule, the defendant bears the burden of

persuasion with respect to showing prejudice due to the error; under harmless error analysis, the

State has the burden of persuasion to show, beyond a reasonable doubt, a lack of prejudice despite

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the error). Given that the evidence against defendant, including his admission to police, was

overwhelming, a harmless-error argument would not have prevailed. People v. Laliberte, 246 Ill.

App. 3d 159, 173 (1993) (“One test for harmless error is to examine the other evidence in the case

to see if overwhelming evidence supports the conviction.”).

¶ 66 Next, as to the evaluation of defendant’s phone, certainly, trial counsel has a professional

duty and ethical obligation to conduct reasonable investigations (People v. Domagala, 2013 IL

113688, ¶ 38), which counsel did not do here when he accepted the prosecution’s word concerning

whether the phone examination revealed exculpatory evidence. However, we reject defendant’s

argument, because he cannot show prejudice where he fails to specify what exculpatory or

favorable evidence is contained in the text messages. Neither in his petition nor briefs does he

elaborate with facts regarding what evidence supports his position. He merely makes either vague

or conclusory assertions that texts he wrote and ones he received from Jessica prior to the incident

were “important” and “crucial” to his defense, that he conveyed this to trial counsel, who relied on

the State’s representation that nothing exculpatory was discovered in the forensic evaluation, and

that the texts “contained statements by [Jessica] that could have led to discoverable evidence and/or

provided ammunition for cross[-]examination.” “[N]onspecific and nonfactual assertions are

insufficient to require an evidentiary hearing[.]” People v. Coleman, 183 Ill.2d 366, 381 (1998).

Defendant’s assertions, accordingly, are unavailing.

¶ 67 D. Brady Claim – Defendant’s Phone

¶ 68 Defendant’s final argument is that the circuit court erred in dismissing his petition, where

he established that his rights under Brady were violated when the State withheld the results of the

forensic evaluation of his phone. He maintains that, if trial counsel’s representation was adequate

when counsel relied upon the State’s representation that the results of the evaluation were not

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exculpatory, then a Brady violation occurred. The results and/or text messages, defendant argues,

constituted materially favorable evidence that would have supported his defense at trial. There is

a reasonable probability, he asserts, that, had the evidence been disclosed to the defense, the result

of the proceeding would have been different. Specifically, defendant offers only that months of

text messages between him and Jessica “were telling on the nature of their relationship, i.e., the

way [Jessica] had previously conducted herself, which is completely material to her credibility[,]

as well as her claim of lack of consent.”

¶ 69 We reject defendant’s argument. He again fails to specify what favorable evidence is

contained in the data from his phone, thus, relying solely on conjecture and speculation. Lacking

such information, he cannot establish materiality or prejudice. Further, as noted, the evidence of

his guilt was overwhelming and did not merely turn on Jessica’s credibility. Vague or speculative

assertions of favorable evidence are insufficient to support his Brady claim. People v. Ramsey,

147 Ill. App. 3d 1084, 1090-91 (1986) (a claim of prejudice must be founded upon more than

speculation or conjecture).

¶ 70 III. CONCLUSION

¶ 71 For the reasons stated, we affirm the judgment of the circuit court of McHenry County.

¶ 72 Affirmed.

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