In rе R.M., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. R.M., Respondent-Appellant).
No. 4-21-0426
Appellate Court, Fourth District
January 25, 2022
2022 IL App (4th) 210426
JUSTICE HARRIS delivered the judgment of the court, with opinion. Justices Turner and Holder White concurred in the judgment and opinion.
Decision Under Review Appeal from the Circuit Court of Macon County, No. 20-JD-65; the Hon. James R. Coryell, Judge, presiding.
Judgment Affirmed.
Counsel on Appeal James E. Chadd, Catherine K. Hart, and Natalia Galica, of State Appellate Defender’s Office, of Springfield, for appellant.
Scott Rueter, State’s Attorney, of Decatur (Patrick Delfino, David J. Robinson, and Luke McNeill, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE HARRIS delivered the judgment of the court, with opinion. Justices Turner and Holder White concurred in the judgment and opinion.
¶ 1 Following a bench trial, respondent minor, R.M., was found guilty of two counts of aggravated criminal sexual assault (
¶ 2 I. BACKGROUND
¶ 3 In July 2020, the State filed a petition, alleging R.M., then age 15, was a delinquent minor for having committed the offenses of aggravated criminal sexual assault (
¶ 4 In January 2021, the trial court granted the State’s motion to allow certain hearsay statements into evidence under section 115-10 of the Code of Criminal Procedure of 1963 (Code) (
¶ 5 In March 2021, R.M.’s bench trial was conducted. The State’s evidence showed that at the time of the alleged offenses, R.M. was 14 years old and S.W. was 5. On March 1, 2019, S.W. spent time at the home of Rennoria H.—R.M.’s mother. The nеxt day, Octivia noticed S.W. acting unusually, prompting her to ask S.W. if “anybody d[id] anything to [S.W.] in [her] private areas.” According to Octivia, S.W. made statements indicating R.M. put his penis in her mouth, “peed” in her mouth, and rubbed his penis “[f]rom her butt to her *** vagina.”
¶ 6 The State submitted S.W.’s recorded interview with Elsea, during which S.W. also reported contact between R.M.’s penis and her mouth and anus. The record reflects R.M.’s mother was known by the nickname “Dinky.” On the recording, S.W. described being at “Dinky’s” house when both she and R.M. were looking out of a window. She stated she observed R.M., whom she idеntified by his first name, pull his pants down and rub his “nuts.” S.W. indicated during the interview that word “nuts” referred to R.M.’s genitals. S.W. reported that R.M. told her to “come here” and “put [her] knees down to the ground.” R.M. then put his “nuts” up to her face, put his “nuts” in her mouth, and “peed” in her mouth. S.W. stated the incident occurred in the dining room and R.M. threatened to put a sock in her mouth if she did not comply. She also reported that she wiped her mouth on a blanket and spit what was in her mouth into a garbage can in the kitchen. When asked about who else was present at the time of the incident, S.W. suggested others were “not there” or asleep. She also stated that one of her siblings was in another room watching Spider-Man.
¶ 8 At trial, S.W., who was then seven years old, testified briefly. On questioning by the State, S.W. asserted she knew what it meant to “tell the truth” and that telling the truth was important. She stated she recalled telling her mother that R.M. “raped” her. She also remembered talking tо Elsea. S.W. testified that what she reported to both her mother and Elsea was the truth. When asked what R.M. did to her, S.W. stated he “peed in [her] mouth.” R.M.’s counsel declined any cross-examination.
¶ 9 The State’s evidence further showed that Octivia retrieved multiple pairs of S.W.’s underwear from her dirty laundry, which she believed S.W. might have worn at the time of the alleged offenses. She gave the underwear to the police, and forensic testing was performed on the underwear at the Illinois State Police crime lab. A forensic scientist testifiеd that one pair of underwear tested positive for the presence of seminal fluid, although no sperm cells were identified. A mixture of deoxyribonucleic acid (DNA) was extracted from the seminal fluid. Using S.W.’s DNA profile, taken from a sexual assault kit performed on her, S.W.’s DNA was “remove[d]” from the mixture. The remaining DNA was determined to be from a male and compared to R.M.’s DNA profile. The comparison showed R.M. could not be excluded as a contributor to the DNA mixture. According to the State’s forensic scientist, the rarity of the DNA profile from the underwear was 1 in 430,000 people.
¶ 11 R.M. testified on his own behalf. He denied the allegations against him and stated he had no physical contact of any kind with S.W. Additionally, R.M. stated thаt after the incident at issue, Octivia and S.W. “pulled up” at his mother’s house. While they were outside, his aunt asked S.W. whether “her mom [told] her that” in reference to the accusations against him and S.W. responded “ ‘yes.’ ”
¶ 12 The record shows the trial court found R.M. guilty of counts I and II, charging him with aggravated criminal sexual assault. It determined counts III and IV were lesser included offenses and entered no judgment on those counts.
¶ 13 In April 2021, R.M. filed a posttrial motion challenging the sufficiency of the evidence against him and asking the trial court to enter a judgmеnt of acquittal or order a new trial. In July 2021, the court denied R.M.’s motion and sentenced him to 24 months’ probation.
¶ 14 This appeal followed.
¶ 15 II. ANALYSIS
¶ 16 A. Accelerated Appeal Filing Deadline
¶ 17 Initially, we note that this is an accelerated appeal under
¶ 19 On appeal, R.M. first raises a claim of ineffective assistance of counsel, alleging his trial attornеy improperly failed to investigate or “mention” an allegation that Octivia sexually assaulted him when he was 13 years old, “starting one year before” the date of the alleged offenses against S.W. He maintains Octivia was a “central witness” in the case against him and allegations that she sexually assaulted him could have been used to impeach her credibility. R.M. acknowledges that his ineffective-assistance claim is being raised for the first time on appeal and was not developed during the underlying proceedings; however, he contends that because postconviction proceedings are unavailable to juvenile offenders, he is entitled to have his case remanded to the trial court for a Krankel inquiry (see People v. Krankel, 102 Ill. 2d 181, 464 N.E.2d 1045 (1984)) into his claim.
¶ 20 Initially, we note that R.M. has attached the affidavit of his appellate counsel, Natalia Galica, to his brief. In her affidavit, Galica asserts she first learned of claims of sexual activity between Octivia and R.M. when communicating with R.M.’s trial attorney, Caleb Brown, in preparation for R.M.’s appeal. According to Galica, Brown indicated Rennoria told him about the alleged sexual activity prior to trial. He suggested R.M. and Rennoria might want to include a claim of ineffective assistance of counsel on appeal based upon that information. Galica further described her communications with R.M. and Rennoria on the subject, averring that R.M. confirmed to her that the alleged sexual activity with Octivia had occurred and that both R.M. and Rennoria reported having discussions with Brown about those allegations. The Statе has filed a motion to strike Galica’s affidavit on the bases that attachments to briefs cannot be used to supplement the record and a reviewing court may not consider matters that are not part of the appellate record. We ordered the State’s motion taken with the case and, for the reasons that follow, grant that motion.
¶ 21 Illinois Supreme Court Rule 329 (eff. July 1, 2017) allows the record to be supplemented on appeal. However, “attachments to briefs cannot be used to supplement the record, and this court cannot consider evidence that is not part of the record.” People v. Garcia, 2017 IL App (1st) 133398, ¶ 35, 74 N.E.3d 1058; In re Parentage of Melton, 321 Ill. App. 3d 823, 826, 748 N.E.2d 291, 294 (2001) (stating “parties cannot use briefs and appendices to supplement the record”).
¶ 22 Here, Galica’s affidavit appears as an attachment to R.M.’s appellant’s brief. It is not part of the of the appellate record, and evidentiary matters that are not included in the appellate record cannot be considered by this court on review. On appeal, R.M. presents no authority that would allow us to hold otherwise. Accordingly, we cannot consider the contents of Galica’s affidavit.
¶ 24 As with adult criminal offenders, a minor subject to delinquency proceedings has a constitutional right to the effective assistance of counsel. In re T.R., 2019 IL App (4th) 190051, ¶ 30, 127 N.E.3d 1157 (citing People v. Austin M., 2012 IL 111194, ¶ 74, 975 N.E.2d 22). “The standard utilized to gauge the effectiveness of counsel in juvenile proceedings is the Strickland [(Strickland v. Washington, 466 U.S. 668 (1984))] standard, used in criminal cases.” In re Danielle J., 2013 IL 110810, ¶ 31, 1 N.E.3d 510. “Under this standаrd, ineffective assistance of counsel is established if the minor can demonstrate: (1) counsel’s performance failed to meet an objective standard of competence and (2) counsel’s deficient performance resulted in prejudice to the minor.” Id..
¶ 25 Generally, “in Illinois, defendants are required to raise ineffective assistance of counsel claims on direct review if apparent on the record.” People v. Veach, 2017 IL 120649, ¶ 46, 89 N.E.3d 366. However, our supreme court has acknowledged that some ineffective-assistance claims may “be better suited to collateral proceedings” when “the record is incomplete or inadequate for resolving the claim.” Id.. In other words, when an ineffective‑assistance‑of‑counsel claim depends upon facts not found in the record, it is more properly raised in a postconviction proceeding. People v. Harris, 2018 IL 121932, ¶ 48, 120 N.E.3d 900.
¶ 26 As R.M. argues, postconviction proceedings are not available to delinquent minors. In re T.R., 2019 IL App (4th) 190051, ¶ 33. This is “because the Post-Conviction Hearing Act [citation] applies only to сonvictions and persons imprisoned in the penitentiary” and “[j]uveniles are neither convicted nor imprisoned when they are adjudicated delinquent.” Id.. Thus, “in some circumstances juveniles are unable to adequately present claims of ineffective assistance of counsel on direct appeal because they have not developed a factual record in the trial court and cannot do so in a collateral attack.” Id., ¶ 35. Accordingly, there have been instances when this court has “rеmanded the case to the trial court for an evidentiary hearing while retaining jurisdiction.” Id. (citing In re Ch. W., 399 Ill. App. 3d 825, 830, 927 N.E.2d 872, 876 (2010), and In re Alonzo O., 2015 IL App (4th) 150308, ¶ 30, 40 N.E.3d 1228, abrogated on other grounds by Veach, 2017 IL 120649, ¶ 39).
¶ 28 In Alonzo O., this court reached a similar resolution. There, the respondent minor wаs found guilty of battery. In re Alonzo O., 2015 IL App (4th) 150308, ¶ 13. On appeal, he argued his counsel was ineffective for failing “to investigate and impeach the State’s central witness *** with a prior felony conviction for aggravated domestic battery.” Id. ¶ 17. The respondent supplemented the appellate record with a certified copy of the witness’s conviction. Id. ¶ 23.
¶ 30 Here, R.M. seeks a similar result to those reached in Ch. W. and Alonzo O. However, the State argues those cases are distinguishable because, in both Ch. W. and Alonzo O., the respondents properly supplemented the record on appeal with documentation supporting their claims. We agree. Although the appellate records in those cases were not sufficiently developed to resolve the ineffective-assistance claims at issue, each record contained at least some factual support for the allegations raised by the respondents on appeal. By contrast, nothing in the appellate record in this case supports R.M.’s ineffective-assistance-of-counsel claim.
¶ 31 We note the allegations R.M. brings concern matters that are typically outside the trial court record, i.e., communications with his attorney and his attorney’s investigation into his case. Nevertheless, Rule 329 states that “[i]f the record is insufficient to present fully and fairly the questions involved, the requisite portions may be supplied at the cost of the appellant” and, “[i]f necessary, a supplement to the record may be certified and transmitted.”
“As a general rule, we will not issue a supervisory order unless the normal appellate process will not afford adequate relief and the dispute involves a matter important to the administration of justice [citation] or intervention is necessary to kеep an inferior tribunal from acting beyond the scope of its authority [citation].” People ex rel. Birkett v. Bakalis, 196 Ill. 2d 510, 513, 752 N.E.2d 1107, 1109 (2001).
¶ 33 Here, for the reasons stated, R.M.’s ineffective-assistance claim is not appropriate for direct review. Additionally, unlike an adult offender, he does not have the ability to raise his claim in a postconviction proceeding. Under such circumstances, Rule 383 appears to provide an opportunity for relief.
¶ 34 C. Sufficiency of the Evidence
¶ 35 On appeal, R.M. also argues the State failed to prove his guilt beyond a reasonable doubt. Hе contends S.W.’s statements and testimony were inconsistent and unreliable, and the DNA evidence was “unclear.”
¶ 36 “[T]he State carries the burden of proving each element of a charged offense beyond a reasonable doubt.” People v. Murray, 2019 IL 123289, ¶ 28, 155 N.E.3d 412. “When a defendant challenges the sufficiency of the evidence, a reviewing court must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a rеasonable doubt.” People v. Jackson, 2020 IL 124112, ¶ 64, 162 N.E.3d 223. The trier of fact is “responsible for resolving conflicts in the testimony, weighing the evidence, and drawing reasonable inferences from the facts,” and a reviewing court does not retry the defendant. Harris, 2018 IL 121932, ¶ 26. On appeal, “[a] criminal conviction will not be set aside on a challenge to the sufficiency of the evidence unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt.” Jackson, 2020 IL 124112, ¶ 64.
¶ 37 Further, although a fact finder’s decision to accept witness testimony is not conclusive or binding on a reviewing court, it is entitled to great deference. People v. Cunningham, 212 Ill. 2d 274, 280, 818 N.E.2d 304, 308 (2004). “Testimony may be found insufficient *** only where the record evidence compels the conclusion that no reasonable person could accept it beyond a reasonable doubt.” Id. “A conviction will not be reversed simply because the evidence is contradictory or because the defendant claims that a witness was not credible.” People v. Gray, 2017 IL 120958, ¶ 36, 91 N.E.3d 876.
¶ 38 Relevant to this appeal, “[a] person commits aggravаted criminal sexual assault if that person is under 17 years of age and *** commits an act of sexual penetration with a victim who is under 9 years of age.”
¶ 39 Here, the State presented evidence as to each element of the charged offenses at R.M.’s bench trial. In particular, its evidence showed the ages of both R.M. and S.W. at the time of the alleged offenses and included statements from S.W., indicating contact between R.M.’s penis and both her mouth and anus. Significantly, the State also presented DNA evidence that supported S.W.’s reports of assault.
¶ 40 On appeal, R.M. first argues that S.W.’s interview with Elsea contained numerous inconsistencies, which raised serious doubt as to her credibility. We disagree. S.W. testified at trial and provided statements to both her mother and Elsea about the alleged offenses. She clearly identified R.M., and only R.M., as the perpetrator of sexual acts against her and provided descriptions of those acts, including where and how they occurred. When viewing the interview in its entirety and S.W.’s statements in context, we find any inconsistencies were minor and that they are overstated by R.M. on appeal. Accordingly, we reject R.M.’s assertion
¶ 41 R.M. further notes that, at trial, S.W. did not testify that contact between his penis and her anus had occurred. He contends the only support for such contact was S.W.’s prior hearsay statements, which were, alone, insufficient to sustain the State’s burden of proof. As suрport for his claim, R.M. cites People v. Mitchell, 215 Ill. App. 3d 849, 576 N.E.2d 78 (1991). In that case, the First District found the trial court erred in finding the defendant guilty of the aggravated criminal sexual assault of a minor on the basis of hearsay testimony alone. Mitchell, 215 Ill. App. 3d at 860. However, the facts of that case are significantly distinguishable from the present situation. First, the hearsay statements at issue in Mitchell were found to be improperly allowed by the trial court because the safeguards set forth in section 115-10 “to ensure reliability of the testimony were not used.” Id. Second, the alleged minor victim “did not testify аnd was therefore unavailable for cross-examination.” Id..
¶ 42 Conversely, in this case, there is no assertion that S.W.’s hearsay statements were improperly admitted under section 115-10 as substantive evidence. Additionally, S.W. did testify at R.M.’s bench trial and, thus, was available for cross-examination. Under such circumstances, her statements to her mother and Elsea were sufficient to sustain the State’s burden of proof. The First District’s decision in Mitchell is clearly distinguishable and does not require a different result.
¶ 43 R.M. also argues on appeal that no evidence established whether S.W. understood the difference between a truth and a lie. He contends that given the inconsistencies in her statement to Elsea, the lack of such evidence “undermines the accuracy of her testimony.” Again, we disagree. S.W. testified at trial that she knew what it meant to “tell the truth” and that telling the truth was important. She was available for cross-examination on that point and nothing in the record undermines her testimony, including inconsistencies in her statement, which, again, we deem to be minor.
¶ 44 Finally, R.M. alsо challenges the evidence linking his DNA to seminal fluid found on a pair of S.W.’s underwear. First, R.M. contends the DNA evidence was unreliable and lacked probative value because there was no confirmation that the underwear on which the DNA evidence was found belonged to S.W. or was worn by her on the night of the alleged offense.
¶ 45 To this point, we note Octivia’s testimony at trial identified the underwear that was tested as belonging to S.W. On direct examination, the State asked Octivia whether at any point she gave the police “underwear that belonged to [S.W.]” and Octivia responded, “[y]es.” She further testified she obtained the underwear from where her family’s dirty laundry was kept and stated as follows: “I got my daughter’s panties out that I thought were around the ones she wore the night she was over at [R.M.’s mother’s] house.” Moreover, testimony from the State’s forensic scientist indicated S.W.’s DNA was found on the same pair of underwear linked to defendant, further suggesting the underwear had been worn by her. R.M.’s claims of unreliability and lack of probative value are without merit.
¶ 46 R.M. additionally argues the DNA evidence should be viewed with caution because it did not definitively show that he was the contributor of the seminal fluid found on the underwear. To support this argument, R.M. cites multiple scientific articles on the subject of bodily fluids and DNA. The State has objected to R.M.’s inclusion of these citations within his brief, arguing they concern evidentiary matters that were not presented below. We agree with the State and find the materials cited by R.M. involve evidentiary matters not considered by the trial court but which are aimed at impeaching its factual determinations on review. Such materials are not appropriate for our consideration, and we decline to give them any weight. See Cook County Board of Review v. Property Tax Appeal Board, 339 Ill. App. 3d 529, 542, 791 N.E.2d 8, 19 (2002) (“A court will not take judicial notice of critical evidentiary material not presented in the court below or of evidence that may be significant in the proper determination of the issues between the parties.”).
¶ 47 Regarding the merits of R.M.’s claim, we note that the evidence at trial showed R.M. could not be excluded as a contributor to the DNA mixture and that the rarity of the male DNA profile from the underwear was 1 in 430,000 people. During closing arguments, R.M.’s counsel maintained that the evidence did not definitively show that R.M.’s “DNA was found.” Thus, the point emphasized by R.M. on appeal was apparent at R.M.’s trial, and there was no misapprehension as to the nature of the evidence. Moreover, although the physical evidence did not conclusively link R.M. to the seminal fluid, it, along with the other evidence in the case, ultimately supported the trial court’s finding of guilt beyond a reasonable doubt.
¶ 48 III. CONCLUSION
¶ 49 For the reasons stated, we affirm the trial court’s judgment.
¶ 50 Affirmed.