People v. Foster
156 N.E.3d 1118
Ill. App. Ct.2020Background
- Defendant Orane Foster was charged with five counts of predatory criminal sexual assault (finger and object allegations plus one anal-penetration count) and two counts of aggravated criminal sexual abuse involving victim S.L., who was 6 at the time of the alleged conduct.
- S.L. made multiple out-of-court disclosures to family members and to a Child Advocacy Center (CAC) forensic interviewer that she was poked in her vagina with a finger and a pen, and was touched in her anus; the CAC interview was recorded and admitted under 725 ILCS 5/115-10.
- A pediatric sexual-assault examination produced normal physical findings; the examining expert explained that most child sexual-assault exams are normal because injuries heal.
- At trial S.L. (then 8) had limited recall and did not testify consistently with her prior statements; Foster testified and offered alibi/corroborating witness testimony denying any abuse.
- The jury convicted Foster on six of seven counts and the trial court imposed a 27-year aggregate sentence. On appeal Foster challenged sufficiency, one-act/one-crime principles, and alleged Rule 431(b)/Zehr voir-dire errors.
- The appellate court held there was a clear Rule 431(b) error (a seated juror was not asked Zehr questions), found the evidence closely balanced, and reversed and remanded for a new trial despite concluding the evidence otherwise would have been sufficient.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for multiple counts (finger/object, multiple acts) | State: testimony of CAC witnesses and medical examiner supported multiple intrusions/contacts; admitted under 115-10 was properly weighed by jury | Foster: evidence only proved one finger intrusion and no penetration/contact with an object; most proof was hearsay and uncorroborated | Court: Evidence was sufficient to convict on two finger counts and two object counts (jury could infer multiple intrusions/contacts) but this did not foreclose retrial after voir-dire error |
| One-act/one-crime (whether multiple offenses proved) | State: separate statements and details supported multiple acts | Foster: prosecutions alleged multiple acts but facts support only a single act for each mode of penetration | Court: Did not decide—issue passed over because disposition turned on voir-dire error |
| Rule 431(b)/Zehr voir dire compliance (failure to ask juror about principles) | State: Any error harmless; defendant testified and presented witnesses so no prejudice; evidence not closely balanced | Foster: Court failed to ask a seated juror (juror 37) Zehr questions; plain error review warranted | Court: Clear Rule 431(b) error as juror 37 was not asked; because the evidence was closely balanced, the error was plain and required reversal and remand for new trial |
Key Cases Cited
- People v. Collins, 106 Ill.2d 237 (1985) (standard of review for sufficiency of the evidence/Jackson framework)
- Jackson v. Virginia, 443 U.S. 307 (1979) (sufficiency standard—whether any rational trier of fact could find guilt beyond a reasonable doubt)
- People v. Zehr, 103 Ill.2d 472 (1984) (articulating the juror-admonition principles later codified in Rule 431(b))
- People v. Bowen, 183 Ill.2d 103 (1998) (purpose and rationale for admitting young victims’ out-of-court statements under statutory exceptions)
- People v. Thompson, 238 Ill.2d 598 (2010) (failure to question each juror on Zehr principles violates Rule 431(b))
- People v. Piatkowski, 225 Ill.2d 551 (2007) (explaining the closely balanced-evidence inquiry under plain-error review)
- People v. Sebby, 2017 IL 119445 (2017) (plain-error framework for unpreserved Rule 431(b) violations and analysis of the two prongs)