People v. Mourning

2017 IL App (4th) 160592-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MATTHEW L. MOURNING, Defendant-Appellant.

NO. 4-16-0592

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

April 25, 2017

NOTICE

This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from Circuit Court of Macon County

No. 11CF166

Honorable Timothy J. Steadman, Judge Presiding.

JUSTICE STEIGMANN delivered the judgment of the court.

Presiding Justice Turner and Justice Appleton concurred in the judgment.

ORDER

¶ 1 Held: (1) The State's questioning of a witness about another witness's credibility did not constitute plain error; (2) the State's questioning of a witness about the victim's initial report of alleged abuse was not error; and (3) certain fines must be vacated because they were imposed by the circuit clerk.

¶ 2 The State charged defendant, Matthew L. Mourning, with two counts of predatory criminal sexual assault of a child, alleging that he placed his finger in the vagina of his half-sister, M.M.

¶ 3 Prior to trial, defendant filed a motion in limine seeking to prevent the State from introducing evidence of M.M.'s reporting of the allegations to her mother and the police. The trial court ruled that the State could introduce evidence that M.M. made the reports but not substantive evidence about the contents of the reports.

¶ 4 At the December 2013 jury trial, M.M.'s mother testified that in January 2011, M.M. made "a report" to her that "something" had happened.

¶ 5 Later at trial, during the State's cross-examination of defendant, the State asked whether defendant thought M.M. was lying and what motivation she might have for doing so. Defendant testified that M.M. was lying but that he did not know why.

¶ 6 The jury found defendant guilty on both counts. The trial court sentenced him to eight years in prison for count I and nine years for count II, to be served consecutively. The circuit clerk later imposed various fines and fees.

¶ 7 On appeal, we remanded for the trial court to conduct an inquiry into defendant's posttrial claims of ineffective assistance of counsel. People v. Mourning, 2016 IL App (4th) 140270, ¶ 1, 51 N.E.3d 1122. On remand, in August 2016, the trial court conducted a hearing and determined that defendant's claims of ineffective assistance lacked merit or pertained to trial strategy.

¶ 8 Defendant appeals, arguing that (1) the State improperly elicited testimony from defendant about M.M.'s credibility; (2) M.M.'s mother improperly testified about M.M.'s reporting of the alleged abuse; and (3) the circuit clerk improperly imposed several fines. We affirm in part and vacate in part.

¶ 9 I. BACKGROUND

¶ 10 In February 2011, the State charged defendant with two counts of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1 (West 2010)). Both counts alleged that defendant, who was 17 years of age or older, placed his finger in the sex organ of M.M. (born November 23, 1995), who was less than 13 years of age.

¶ 11 A. Motion in Limine

¶ 12 In April 2013, defendant filed a motion in limine seeking to prohibit the State from introducing any prior statements made by M.M. reporting the alleged offenses. The Stateresponded that some testimony about M.M.'s reporting of the alleged offenses was necessary to explain to the jury the course of the investigation and why M.M. waited approximately six years to report. The trial court decided that the State could question witnesses about if and when M.M. reported the alleged offenses but not about the substance of her reports.

¶ 13 B. Trial

¶ 14 At the December 2013 jury trial, M.M.'s mother testified that defendant was her son and M.M.'s half-brother. Defendant lived with M.M. and their mother when M.M. was between six and nine years old. The following exchange occurred about a "report" that M.M. made to her mother in January 2011:

"[THE STATE]: I would like to turn your attention to January 26, 2011. At that time, did [M.M.] make a report to you?

[M.M.'S MOTHER]: Yes.

[THE STATE]: How old was [M.M.] when she made this report to you?

[M.M.'S MOTHER]: 15.

[THE STATE]: And when [M.M.] made this report to you, where were you and other family members located?

[M.M.'S MOTHER]: She waited for her dad to go to work and I was sitting on the love seat. She asked me to pause the television, she had something to discuss with me.

[THE STATE]: Okay. Now I can't go into at this point to what [M.M.] told you, but you were in the living room of your home?

[M.M.'S MOTHER]: Yes.

[THE STATE]: Did she tell you something then that had happened to her?

[M.M.'S MOTHER]: Yes.

[THE STATE]: Again, without going into detail about what she told you, was this the first time that you had heard of this?

[M.M.'S MOTHER]: Yes."

M.M.'s mother testified that M.M. was "very upset" and "very emotional" and that it was "hard to understand what she was saying through her tears."

¶ 15 M.M. testified that when she was between the ages of five and nine, while she and defendant were living in the same home, defendant twice placed his finger in her vagina. The first time, after she and defendant had finished swimming, he locked her in the bathroom and placed his finger inside her vagina. He told her not to talk about it and that it was "normal." M.M. testified that she "knew that it didn't feel right, but I knew I couldn't say anything." On another occasion, defendant entered M.M.'s bedroom while she was in bed and placed his fingers in her vagina, which made M.M. feel "[s]cared and wrong." M.M. did not tell anyone about these two instances until she was 15 years old. She was inspired to report the allegations after attending a program at church called "True Love Waits."

¶ 16 Macon County Detective Kris Thompson testified that he interviewed M.M. at the Child Advocacy Center in Decatur, Illinois. During that interview, M.M. did not mention any incident with defendant that occurred in the bathroom after swimming. Instead, M.M. described two or three separate occasions when defendant placed his finger in her vagina while M.M. was in bed in her pajamas.

¶ 17 Thompson testified further that after interviewing M.M., he arrested and interrogated defendant. Defendant denied having any sexual contact with M.M. Defendant told Thomp-son that he was "best friends" with M.M. and that having sexual contact with her would be "gross." Thompson asked defendant whether he thought that M.M. was lying about her accusations. Defendant responded that he did not know why M.M. would lie.

¶ 18 Defendant testified that he never put M.M. to bed or made any sexual contact with her. Although their mother occasionally left defendant alone with M.M. in the evenings, he was never left alone with her overnight. On cross-examination, the following interchange occurred:

"[THE STATE]: Do you remember when you talked to Detective Thompson saying that you knew you were not lying about what happened with [M.M.]?

[DEFENDANT]: That is correct.

[THE STATE]: And he asked you if you thought [M.M.] was making this up or lying and you didn't respond?

[DEFENDANT]: That is correct.

[THE STATE]: Why?

[DEFENDANT]: Because I know that.

[THE STATE]: Why didn't you—is [M.M.] lying or making it up?

[DEFENDANT]: Yes, she is.

[THE STATE]: Why?

[DEFENDANT]: Because—I don't know—can you say that again?

[THE STATE]: Your position is that [M.M.] is lying or making up what she says about you touching her?

[DEFENDANT]: Yes, I do.

[THE STATE]: And I'm saying why would she lie about that?

[DEFENDANT]: I don't know why she would lie about that.

[THE STATE]: Can you think of any reason at all why she would lie?

[DEFENDANT]: Because maybe somebody put her up to it.

[THE STATE]: Like who—did you know that someone did?

[DEFENDANT]: No, I don't."

¶ 19 During closing argument, the State argued the following:

"When asked—when the defendant was asked why would she make it up? He said, I don't know. He went on it [sic] say, maybe someone put her up to it. That's the best he can come up with. Well, who put her up to it? He said, I don't know. What this comes down to is who do you believe."

¶ 20 The trial court sentenced defendant to eight years in prison for count I and nine years for count II, to be served consecutively. The court did not impose any fines. The circuit clerk later imposed several assessments against defendant.

¶ 21 On appeal, we remanded, pursuant to People v. Krankel, 102 Ill. 2d 181, 464 N.E.2d 1045 (1984), for an inquiry into defendant's posttrial claims of ineffective assistance of counsel. Mourning, 2016 IL App (4th) 140270, ¶ 1, 51 N.E.3d 1122.

¶ 22 On remand, in August 2016, the trial court conducted a Krankel hearing and determined that defendant's claims of ineffective assistance lacked merit or pertained to trial strategy.

¶ 23 Defendant appeals.

¶ 24 II. ANALYSIS

¶ 25 Defendant raises the following arguments on appeal: (1) the State improperly elicited testimony from defendant about M.M.'s credibility, (2) M.M.'s mother improperly testified about M.M.'s reporting of the alleged abuse, and (3) the circuit clerk improperly imposed severalfines.

¶ 26 A. Testimony About Credibility

¶ 27 Defendant argues that the State improperly elicited testimony from him about M.M.'s credibility. In this case, the State asked defendant whether he thought M.M. was lying. When defendant responded that he thought she was, the State followed up by asking defendant why M.M. would lie.

¶ 28 Defendant failed to object to the testimony at trial. Therefore defendant forfeited his claim, and we review it under the plain-error doctrine. People v. Thompson, 238 Ill. 2d 598, 611, 939 N.E.2d 403, 412 (2010). Under the plain-error doctrine, we will reverse a forfeited error if the error was clear and obvious and either (1) the evidence was so closely balanced that the error alone threatened to tip the scales of justice against defendant or (2) the error was so serious that it affected the fairness of the defendant's trial and...