People v. Effinger

53 N.E.3d 985

403 Ill.Dec. 348

The PEOPLE of the State of Illinois, Plaintiff–Appellee

v.Elton EFFINGER, Defendant–Appellant.

No. 3–14–0203.

Appellate Court of Illinois, Third District.

March 28, 2016.

Rehearing Denied April 27, 2016.

Michael J. Pelletier and Andrew J. Boyd, both of State Appellate Defender's Office, of Ottawa, for appellant.

James Glasgow, State's Attorney, of Joliet (Richard T. Leonard, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

Justice LYTTON delivered the judgment of the court, with opinion.

¶ 1 Defendant, Elton Effinger, appeals from his conviction for aggravated battery. On appeal, defendant argues that his conviction should be reversed and remanded for a new trial because: (1) evidence that defendant was “grooming” the victim was inadmissible; and (2) the State improperly vouched for the victim's credibility during its closing and rebuttal arguments. We affirm.

¶ 2 FACTS

¶ 3 Defendant was charged by indictment with aggravated battery (720 ILCS 5/12–3.05(c), 12–3(a) (West 2012)), and the case proceeded to a jury trial.

¶ 4 The victim testified that on the morning of May 29, 2012, she left her home and began walking to school. Approximately two houses from her home, she saw defendant walking his dogs. Defendant said hello and asked if the victim was going to high school. The victim said that she was going to middle school. In the past, defendant had said good morning to the victim, but he did not approach her or make any other statements. Defendant crossed the street and approached the victim. Defendant said his name was “Steve,” and he asked the victim several questions that included whether the victim took the bus to school, had a cell phone or used social media. Defendant's questions made the victim feel uncomfortable. Defendant told the victim that he had been watching her since she moved into the neighborhood. Defendant said the victim was pretty and that she should hang out after school at the park. Defendant asked the victim when her birthday was and suggested that he could buy her a gift.

¶ 5 Along the route, defendant grabbed the victim's left hand. Defendant asked if the victim was uncomfortable, and when the victim said yes, defendant released her hand. Afterwards, defendant asked the victim if she thought he was attractive. The victim said she did not know. Defendant also shared stories about his childhood as he walked with the victim toward the school. Near the school, defendant told the victim to keep their conversation and his actions a secret. At school, the victim told the assistant principal about the incident.

¶ 6 Jody Ellis testified that she was the assistant principal at Hubert H. Humphrey Middle School. On the morning of May 29, 2012, the victim came to her office. The victim appeared scared, and she told Ellis that a man had walked with her on the way to school, and the man grabbed her hand along the way. The victim said that the man told her that he had been watching the victim and that the victim was beautiful. Ellis contacted the police officer assigned to the school because she felt that the victim was “being groomed by an older male.” The State asked Ellis to explain what she meant by “groomed.” Defense counsel objected as to the relevancy of the testimony and, after a sidebar, the court overruled the objection. Ellis testified that grooming was “[w]hen somebody is trying to make somebody feel comfortable so that they can work their way into them emotionally.”

¶ 7 Bolingbrook Police Detective Christopher Georgeff testified that he investigated the incident after the victim spoke to the officer assigned to the school. On the afternoon of May 29, 2012, Georgeff went to defendant's residence where he spoke with defendant's mother. At the time, Georgeff did not see defendant. In the evening, defendant came to the Bolingbrook police department where he spoke with Georgeff and another detective. Defendant told Georgeff that earlier in the day he was walking his dogs with his girlfriend. One of defendant's dogs ran up to the victim. Defendant approached the victim, retrieved his dog, apologized for the disturbance and walked away. Georgeff said that defendant was “persistent in telling [him] that he did not touch” the victim. Georgeff noted that defendant was cooperative throughout the interview. At the conclusion of the interview, defendant was allowed to leave the police station.

¶ 8 Jan Williams testified that on May 31, 2012, she was flagged down by police officers near a Bolingbrook school. An officer showed Williams some photographs of a young girl and a man. Williams told the officer that she saw these individuals walking together on May 29, 2012, near the school. Williams identified the man as defendant. Williams did not see any physical contact between the girl and defendant.

¶ 9 Melanie Muench–Day testified that on May 31, 2012, she was flagged down by a Bolingbrook police officer. The officer showed her a photograph of a man that Muench–Day had seen alone, walking his dogs, near the school on May 29 or May 30, 2012. Muench–Day identified the man in the photograph as defendant. On cross-examination, Muench–Day said that she did not see a young girl with defendant.

¶ 10 Robert Ralston testified that he lived near the victim's family. On May 31, 2012, a Bolingbrook police officer asked Ralston to look at photographs of two people. Ralston recognized the individuals in the photographs as residents of his neighborhood. Ralston had seen the two individuals walking down the street together a few days before he spoke to the police. Ralston identified one of the individuals as defendant, and the second individual as the girl (the victim) who lived in a house near him.

¶ 11 Bolingbrook Police Officer Andrew Sraga testified that on the evening of October 2, 2012, he stopped a vehicle that had an expired registration. A passenger in the vehicle said his name was “Steven Henderson.” Sraga subsequently determined that Henderson's real name was Elton Effinger. Sraga identified Effinger as the defendant in this case.

¶ 12 The defense did not present any evidence, and the case proceeded to closing arguments. The State argued that “there were no motives that were established for [the victim] to be untruthful.” The State also said “I will put forth that [the victim] was credible and you should believe her.” In rebuttal, the State argued that “we believe [the victim is] credible, that she told—everything she said was completely credible and makes perfect sense as to how everything happened.”

¶ 13 The court instructed the jury that closing arguments are not “evidence and any statement or argument made by the attorneys, which is not based on the evidence, should be disregarded.” The court also instructed the jury that “[o]nly you are the judges of the believability of the witnesses and of the weight to be given to the testimony of each of them.”

¶ 14 The jury found defendant guilty of aggravated battery. Defendant filed a motion for new trial. After a hearing, the trial court denied defendant's motion and sentenced defendant to 10 years' imprisonment. Defendant appeals.

¶ 15 ANALYSIS

¶ 16 I. Evidence

¶ 17 Defendant argues that the trial court abused its discretion when it admitted evidence that defendant was “grooming” the victim because this evidence was irrelevant to the charged offense. After reviewing the record, we find that the grooming evidence was irrelevant, but any error in admitting it was harmless.

¶ 18 Generally, evidence is admissible if it is relevant. People v. Begay, 377 Ill.App.3d 417, 421, 316 Ill.Dec. 574, 879 N.E.2d 962 (2007). Relevant evidence tends to make the existence of any fact in consequence more or less probable than it would be without the evidence. Id. The decision to admit evidence lies within the discretion of the trial court. People v. Harris, 231 Ill.2d 582, 588, 327 Ill.Dec. 39, 901 N.E.2d 367 (2008). “[T]he admission of irrelevant evidence is harmless error if no reasonable probability exists that the verdict would have been different had the irrelevant evidence been excluded.” People v. Lynn, 388 Ill.App.3d 272, 282, 328 Ill.Dec. 477, 904 N.E.2d 987 (2009).

¶ 19 In the instant case, defendant was charged with aggravated battery. The charge alleged that he made contact of an insulting or provoking nature with the victim while she was on a public way. 720 ILCS 5/12–3.05(c), 12–3(a) (West 2012). Ellis's testimony that she thought the victim was being “groomed” did not establish any of the elements of aggravated battery. As a result, this evidence was erroneously admitted; however, its admission was harmless error as the properly admitted evidence established the elements of the charged offense.

¶ 20 The testimony provided by the victim, Williams and Ralston established that the victim and defendant were together on a public sidewalk. The victim also testified that defendant made contact with her while on the sidewalk. While the victim's testimony stands alone in establishing the contact element, the credible testimony of a single witness is sufficient to sustain defendant's conviction. See People v. Williams,

252 Ill.App.3d 1050, 1060, 192 Ill.Dec. 315, 625 N.E.2d 275 (1993) (“[t]he testimony of one witness if credible and positive is sufficient to convict, even if contradicted by the accused”). Moreover, evidence that defendant provided the victim and police with a false name evidenced a consciousness of guilt. See People v. Harris, 225 Ill.2d 1, 23, 310 Ill.Dec. 351, 866 N.E.2d 162 (2007). We therefore conclude that any error in the admission of the grooming evidence was harmless as no reasonable probability existed that the verdict would have been different if this irrelevant evidence was excluded.

¶ 21 II. Closing Argument

¶ 22 Defendant also argues that the State improperly vouched for the victim's credibility during its closing and rebuttal arguments. Defendant acknowledges that he forfeited review of this...