People v. Redmon

2022 IL App (3d) 190167

196 N.E.3d 1150

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

v.Victoria Y. REDMON, Defendant-Appellant.

Appeal No. 3-19-0167

Appellate Court of Illinois, Third District.

Opinion Filed January 6, 2022

James E. Chadd, Thomas A. Karalis, and Steven Varel, of State Appellate Defender's Office, of Ottawa, for appellant.

Jodi Hoos, State's Attorney, of Peoria (Patrick Delfino, Thomas D. Arado, and Nicholas Atwood, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

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

¶ 1 After a jury trial, defendant, Victoria Y. Redmon, was convicted of one count of predatory criminal sexual assault of a child (PCSA) ( 720 ILCS 5/11-1.40(a)(1) (West 2018)) of D.T., one count of PCSA of J.M., and one count of permitting the sexual abuse (id. § 11-9.1A(a)) of B.P. Defendant was sentenced to consecutive prison terms of 9 years and 10 years and a concurrent prison term of 6 years, respectively. Defendant appeals, arguing that (1) her conviction for PCSA of D.T. should be reversed outright because her trial counsel was ineffective for failing to move to dismiss the charge on speedy trial grounds, (2) her conviction for permitting the sexual abuse of B.P. should be reversed outright due to the State's failure to satisfy the charging requirement of the applicable statute, and (3) any of her remaining convictions should be reversed and remanded for new trial due to cumulative error. We reverse outright defendant's convictions for PCSA of D.T. and permitting the sexual abuse of B.P. We also reverse defendant's conviction for PCSA of J.M. and remand that charge for a new trial.

¶ 2 I. BACKGROUND

¶ 3 Defendant, who was born in 1986, and her boyfriend, Bradley P., who was born in 1985, lived in a house in Peoria, Illinois, with their three children: D.T., J.M., and B.P., as a blended family.¹ D.T. was the son of defendant and Dameon T., J.M. was the son of defendant and Johnny M., and B.P. was the son of Bradley and another woman. In about December 2017, the three boys were removed from defendant and Bradley's home by the Department of Children and Family Services (DCFS) over concerns of possible physical abuse and placed temporarily with J.M.’s father, Johnny. D.T. was 10 years old at the time, and J.M. and B.P. were both 6 years old. While the boys were staying with Johnny, Johnny overheard J.M. make a statement to D.T. during an argument about D.T. putting his "pee pee" in B.P.’s mouth. Johnny confronted all three boys about the matter, and all three boys eventually told Johnny that defendant had made D.T. and J.M. put their penises in B.P.’s mouth and that the conduct had been happening for anywhere from one to three years. Johnny reported what the boys had said to DCFS but did not call the police directly.

¶ 4 In March 2018, while the boys were still living with Johnny, Johnny made a statement to D.T. about not wearing his pants down so low where people could see his underwear and indicated to D.T. that when a person did so in jail, it was an advertisement "that you want to get it from the back." D.T. responded that someone had already done that to him. Johnny spoke to the boys about the matter, and all three boys told Johnny that Bradley had put his penis in their mouths and butts. Johnny again reported what the boys had said to DCFS but did not call the police directly or take the boys to a doctor to be physically examined. He also arranged for the boys to get counseling.

¶ 5 Later that month (March 2018), the boys were interviewed separately by a forensic interviewer, Peoria police officer Shawn Curry, at the Peoria County Children's Advocacy Center (CAC). During the interview, D.T. and J.M. told Curry that they had been sexually abused by defendant and Bradley on numerous occasions (that defendant had made D.T. and J.M. put their penises in B.P.’s mouth while Bradley was present, that Bradley had put his penis in all three of the boys’ mouths, that it was defendant's and Bradley's idea for Bradley to do so, that D.T. had put his mouth on defendant's vagina while Bradley was present, and that defendant and Bradley had B.P. put B.P.’s penis in Bradley's and defendant's butts). B.P. made a similar statement to Curry but to a lesser extent (that defendant had made D.T. and J.M. put their penises in B.P.’s mouth while Bradley was present but that nothing else had occurred).

¶ 6 On March 19, 2018, a few days after the CAC interviews were conducted, defendant and Bradley were arrested for the alleged sex offenses. Defendant remained in custody throughout the entire duration of this case. The following day, defendant was charged by information with one count of aggravated criminal sexual abuse (committed against D.T.) and one count of permitting the sexual abuse of a child (committed against B.P.). The charging instrument alleged that both offenses took place between October 1 and December 19, 2017,² but did not specify what act or conduct defendant had engaged in as to D.T. that had given rise to the aggravated criminal sexual abuse charge. Bradley was charged by information with two counts of PCSA and one count of permitting the sexual abuse of a child. Bradley's charging instrument alleged the same date range for the date of offense as defendant's.

¶ 7 A Gerstein hearing (see Gerstein v. Pugh , 420 U.S. 103, 124, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975) ) was held that same day to determine whether there was probable cause to hold defendant on the charged offenses. At the hearing, the prosecutor relied on the CAC interviews and told the court that the evidence would show that over the course of a year on a repeated basis, defendant had made D.T. and J.M. put their penises in B.P.’s mouth; would watch as Bradley performed sex acts on the children, including Bradley putting his penis inside all three of the boys’ mouths and inside B.P.’s butt; and made D.T. perform oral sex on her. The trial court commented that it was confused as to why the prosecutor had not charged defendant with PCSA as well since the prosecutor had described acts of sexual penetration. The prosecutor responded that the State had charged the acts of oral sex against D.T. as sexual conduct because of a belief that such acts did not constitute penetration since defendant was on the "receiving end." The trial court suggested to the prosecutor that the prosecutor's belief in that regard was incorrect. At the conclusion of the hearing, the trial court found that probable cause existed to hold defendant on the charged offenses.

¶ 8 On March 27, 2018, a superseding indictment was filed in defendant's and Bradley's cases. The indictment contained the same counts and allegations as the information that had previously been filed against defendant (counts I and II) and Bradley.

¶ 9 On July 17, 2018, a second indictment was filed in defendant's case adding four new charges (counts III, IV, V, and VI). Counts III and IV charged defendant with PCSA and alleged that defendant had committed an act of sexual penetration against D.T. (count III) and J.M. (count IV). Counts V and VI charged defendant with criminal sexual assault and alleged that defendant had committed an act of sexual penetration against a person by the use or threat of force. The date of offense alleged in the four new counts was the same date range that was alleged in the original two counts.

¶ 10 In August 2018, the State filed a notice of intent to use certain hearsay statements of the children at trial pursuant to section 115-10 of the Code of Criminal Procedure of 1963 ( 725 ILCS 5/115-10 (West 2018) ). A hearing on the motion was later held, and the trial court ruled that the statements that the children had made to Johnny (J.M.’s father) and to Curry at the CAC were admissible. The trial court also ruled that certain pages from D.T.’s diary, where D.T. had made additional statements about sexual abuse, were admissible.

¶ 11 In January 2019, a joint jury trial was held in defendant's and Bradley's cases. The trial took two days to complete. Prior to the start of the trial, the State dismissed counts I, V, and VI against defendant so that the charges against defendant would match the charges against Bradley (one count of PCSA for committing an act of sexual penetration against D.T., one count of PCSA for committing an act of sexual penetration against J.M., and one count of permitting the sexual abuse of B.P.). During the trial, the State presented the testimony of Johnny, Curry, and all three children, each of whom testified that some or all of the sex acts occurred. The State also admitted the audio and video recording of the CAC interviews and the pages from D.T.’s diary. After the State rested, the defense called both defendant and Bradley to testify, each of whom denied that the sex acts occurred. Bradley also testified, however, that B.P. had told him about some of the sex acts with defendant. During closing argument, the prosecutor told the jury that there was evidence of multiple sex acts supporting the charges, including acts the boys performed on each other, acts the boys performed on Bradley, and acts that some of the boys performed on defendant. The prosecutor also told the jury that it only had to believe that one act occurred that satisfied the elements of a charged offense in order to convict and that it could convict even if the individual jurors did not agree on which act had occurred. At the conclusion of the trial, the jury found both defendant and Bradley guilty of all three counts—the two counts of PCSA (D.T. and J.M.) and the one count of permitting the sexual abuse of a child (B.P.).

¶ 12 Defendant filed a posttrial motion for a judgment of acquittal notwithstanding the verdict or for new trial, which the trial court denied. The trial court subsequently sentenced defendant to consecutive prison terms of 9 years and 10 years on the two PCSA convictions and a concurrent prison term...