2020 IL App (4th) 170781-U
Ill. App. Ct.2020Background
- Defendant Kevin Deckard was charged with seven counts of predatory criminal sexual assault of a child (720 ILCS 5/11-1.40(a)(1)), alleging repeated sexual abuse of J.A., his girlfriend’s granddaughter, between 2015–2016 (finger insertion, patting her sex organ, and placing her foot against his sex organ).
- The State introduced J.A.’s CAC recorded interview, medical examiner testimony, witnesses (mother, cousins), computer-search evidence, and testimony from defendant’s adult daughter Angela about defendant’s prior sexual abuse (1991–92); defendant had a prior criminal-sexual-assault conviction that exposed him to natural-life sentences.
- Pretrial, the court admitted J.A.’s out-of-court statements under section 115‑10 and allowed Angela’s prior‑acts testimony under section 115‑7.3; J.A. testified at trial by closed-circuit TV.
- On redirect, J.A. told the prosecutor the abuse “happened to five more people too”; on re‑cross she named two (defendant’s daughter and sister). Angela testified about defendant’s prior abuse and about 2013 statements by defendant to her.
- Jury convicted on all seven counts; trial court imposed seven concurrent natural‑life sentences. On appeal Deckard raised ineffective-assistance claims (failure to object/move to strike certain testimony and failure to object to hearsay), insufficiency as to count VII (contact element), and that three life terms (counts IV–VI) violate the proportionate‑penalties clause.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel was ineffective for failing to object/move to strike J.A.’s testimony that the abuse “happened to five more people” and eliciting identities | State: counsel’s questioning was a reasonable trial strategy to undermine J.A.’s credibility; no deficient performance or prejudice | Deckard: counsel knew propensity evidence was prejudicial and should have objected; failure prejudiced outcome | Court: No deficiency shown as counsel’s conduct plausibly strategic; even if deficient no reasonable probability of a different outcome (no prejudice) |
| Whether counsel was ineffective for failing to object to Angela’s testimony recounting defendant’s 2013 statements to her (alleged hearsay) | State: even if inadmissible, the testimony was cumulative and the overall evidence was overwhelming | Deckard: testimony was inadmissible hearsay outside authorized scope and counsel should have objected | Court: Counsel’s failure to object was deficient, but defendant failed to show prejudice given overwhelming evidence; ineffective‑assistance claim fails |
| Sufficiency of evidence for count VII (whether defendant’s sex organ made contact with J.A.’s foot) | State: J.A.’s recorded CAC statements and testimony support that her foot contacted defendant’s sex organ and that it was for his sexual gratification | Deckard: trial testimony said defendant wore underwear and there was no skin‑to‑skin contact; at most the conduct supports a lesser offense | Court: Jury could reasonably credit the CAC recording where J.A. said her foot touched his “weenie” and sometimes the skin; evidence sufficient for predatory criminal sexual assault |
| Whether counts IV–VI (patted sex organ with hand) require Class X sentencing (life) or are equivalent to Class 2 aggravated criminal sexual abuse | State: charged as predatory criminal sexual assault (Class X) justified by language of statute | Deckard: alleged conduct (patting) meets aggravated criminal sexual abuse elements (Class 2); life sentences disproportionate | Court: Conduct alleged in counts IV–VI also satisfies aggravated criminal sexual abuse; convictions on those counts reduced to Class 2 and sentences reduced to concurrent 7‑year terms; remaining convictions and life terms affirmed |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (establishes two‑prong test for ineffective assistance: deficient performance and prejudice)
- People v. Kennebrew, 2013 IL 113998 (Illinois Supreme Court holding aggravated criminal sexual abuse is a lesser‑included offense of predatory criminal sexual assault)
- People v. Kitch, 2019 IL App (3d) 170522 (construing "contact" to encompass touching)
- People v. Fuller, 205 Ill. 2d 308 (deference to counsel’s trial‑strategy decisions)
- People v. Evans, 209 Ill. 2d 194 (trial counsel may elect not to object as part of strategy)
- People v. Cunningham, 212 Ill. 2d 274 (factfinder’s credibility determinations will not be disturbed if reasonable)