People v. Olla

2018 IL App (2d) 160118

118 N.E.3d 627

427 Ill.Dec. 426

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Baraka OLLA, Defendant-Appellant.

No. 2-16-0118

Appellate Court of Illinois, Second District.

Opinion filed October 4, 2018

James E. Chadd, Thomas A. Lilien, and Sherry R. Silvern, of State Appellate Defender’s Office, of Elgin, for appellant.

Joseph H. McMahon, State’s Attorney, of St. Charles (Patrick Delfino, David J. Robinson, and Steven A. Rodgers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

JUSTICE BIRKETT delivered the judgment of the court, with opinion.

¶ 1 Defendant, Baraka Olla, appeals his convictions of one count of predatory criminal sexual assault of a child ( 720 ILCS 5/11-1.40(a)(1) (West 2014) ) and four counts of aggravated criminal sexual abuse (id. § 11-1.60(c)(1)(i) ). He contends that the trial court plainly erred in its questions to prospective jurors under Illinois Supreme Court Rule 431(b) (eff. July 1, 2012) because (1) the court failed to inquire whether the jurors understood the principles listed in the rule and (2) the evidence was closely balanced. He also contends that the State impermissibly shifted or lessened the burden of proof during closing argument. We affirm.

¶ 2 I. BACKGROUND

¶ 3 Defendant was charged with two counts of predatory criminal sexual assault of a child and multiple counts of aggravated criminal sexual abuse, which alleged that he engaged in various acts with his stepdaughter, A.F., when she was under the age of 13. Before trial, in relation to the State's motion to allow A.F.'s statements at trial, A.F.'s mother, Tawanda, and an investigator, Kathy Byrne, testified about things that A.F. told them. The trial court granted the motion.

¶ 4 During voir dire , the trial court asked the prospective jurors as a group whether they "have any problem or take issue with" the concept that a person is presumed innocent. The court also asked if anyone took issue with the concept that the State had the burden to prove defendant guilty beyond a reasonable doubt, that defendant was not required to testify, and that the decision not to testify could not be held against him. In each instance, the court noted that no one raised their hand. The prospective jurors were not asked whether they understood the concepts. During opening statements, the defense focused on inconsistencies in A.F.'s stories of the events, stating that the jury would hear that she gave inconsistent accounts.

¶ 5 At trial, A.F. testified that she was currently 13. When asked if she remembered the first time something happened between her and defendant, she said "[a] little." A.F. said that she was in the living room with defendant watching television and that defendant pulled down her pants and underwear. A.F. told him that "my mom said that nobody can touch my private," and he responded that it was okay. She initially testified that she did not remember anything after that, but when specifically asked what happened when defendant pulled her pants down, she said that he "humped" her, with his "private" touching hers. She said that she could feel his "private" and that it was hard, but she did not recall whether he had his clothes on. Defendant told her that she was beautiful and that he loved her. He stopped when he heard a noise, and he told her to go wash up and put her clothes back on. When asked what the television show was, she responded that it was "The Walking Dead." She was about nine when the incident happened, and she was able to place the time frame in part based on where the sofa was in the room, although other evidence at trial indicated that the room was rearranged often. When asked if defendant "humped" her at other times, A.F. said that he did so in the living room. On cross-examination, A.F. said that she did not describe the "humping" to her mother as "dry humping." She also said that she did not remember whether her clothes or defendant's clothes were on. She said that, when she talked to Byrne, she could not remember the show that she had been watching, but she recently remembered it.

¶ 6 A.F. testified about another incident that happened in the bedroom of her brother, T.F. A.F. was home sick from school and was lying on the bed when defendant came in and wrapped his arm around her. He lay there for a few minutes and then left. A.F. was in fourth grade at the time.

¶ 7 A.F. recounted another time when she was in her mother's bedroom, lying on the bed, when defendant came in, pulled down her pajama pants, and licked the inside of her "private." A.F. told him to stop, but he did not. He also took her shirt off and touched her chest with his hand. She testified that he never touched her chest with any other part of his body.

¶ 8 A.F. also testified about another incident in her mother's bedroom during which defendant took her hand and placed it on his "private." It was hard, defendant moved her hand up and down on it, and "white stuff" came out. A.F. could not remember some details of the event, such as who took defendant's pants off, why she had been in the room, or if anyone else was home. She could not remember where the "white stuff" went or remember telling Byrne that it went on the bed or on her "private hair."

¶ 9 On another occasion, defendant met A.F. at her school bus stop and told her that he was taking her to McDonald's. However, he took her home and told her to go upstairs, take her clothes off, and get into her mother's bed. Instead, she put on her pajamas and she got into her own bed. She could not remember if defendant came to her room, but she said that he did not touch her that day.

¶ 10 A.F. testified that she used to play "school" with her siblings, with defendant as the principal. She testified about a time when defendant told her to come into the living room, lifted up her dress, removed her underwear, and "humped" her with his "private" touching hers. He also touched her "private" with his hand, by opening the "flaps" around it.

¶ 11 Tawanda was not usually home when A.F. arrived home from school. Sometimes defendant was there until he left for his job. Defendant told A.F. not to tell anybody about what happened between them, and he gave her money to stay quiet about it. She eventually told Tawanda about it because she wanted it to stop. She went to Tawanda and told her, " ‘Dad raped me,’ " and told her everything that he had done. Tawanda threw defendant out of the house and took A.F. to the police station. A.F. later spoke to Byrne and also told her everything.

¶ 12 During cross-examination, defense counsel asked if A.F. told Tawanda or Byrne about various other incidents that she said she did not remember, but she said that, if they had happened, she would have told Tawanda and Byrne. She was also asked about various statements she made to Tawanda about details of the incidents, but she could not remember them. When asked if defendant ever put his "private" in her mouth, A.F. said "[n]o" and that she never told Tawanda or Byrne that he did. She also did not tell Byrne that defendant "dry humped" her, as she did not know what "dry humping" was. When asked specifically how many times defendant put his mouth on her "private," she said two times. She could not remember the number of times that defendant's "private" touched hers or telling Byrne that it happened one time. A.F. also did not remember telling Tawanda about a time when she and her sister were lying on a bed watching a movie with defendant and, when T.F. walked in, defendant jumped up and left the house.

¶ 13 Tawanda testified about the things that A.F. told her. A.F. initially told her that " ‘Dad raped me.’ " Tawanda then allowed A.F. to tell her what happened and did not interrupt her. However, Tawanda testified to details and events that A.F. did not testify to.

¶ 14 In regard to the first incident in the living room, Tawanda said that A.F. told her that defendant pulled her pants down and "licked her privates" by pulling the "flabby lips apart" and licking "the little ball *** between the flabby lips." In regard to the incident in which defendant picked up A.F. at the bus stop, Tawanda testified that A.F. told her that, after she went upstairs and put on her pajamas, defendant carried her into Tawanda's bedroom and tried to remove her pants but was unable to do so because A.F. was kicking and saying no. Defendant then angrily left. As to the "school" incident, A.F. told Tawanda that defendant also licked her "privates" on that day. A.F. also told Tawanda about an incident in which she was lying on a bed with defendant and her younger sister and could feel defendant's penis through his clothes, poking her behind. Tawanda testified that T.F. told her that, when T.F. entered the room, defendant jumped up and left the house. Tawanda asked A.F. if defendant ever put his penis in her mouth, and she said "yes." Tawanda did not recall A.F. telling her that defendant "humped" her or "dry humped" her and did not recall telling that to Byrne. She also did not recall A.F. telling her that defendant's "private" touched hers or that defendant made A.F. touch his "private" and "white stuff" came out.

¶ 15 After A.F. told Tawanda about the incidents, Tawanda grabbed defendant off of the couch and said " ‘You've been licking my daughter?’ " Her three daughters were there at the time, and defendant looked at A.F. and said her name. Tawanda made him leave and took away his keys. During the time of the incidents, A.F. was very aggressive to her brother. After she told Tawanda what happened, she became more pleasant. Tawanda was impeached with a prior conviction of contributing to the delinquency of a minor for directing her son to beat up another child.

¶ 16 T.F. testified about the incident where he walked in while A.F. was watching television on the bed with defendant and her younger sister. He said that he knocked on the door and that defendant told him to come in. He entered the room...