People v. Shaw-Sodaro

238 N.E.3d 1202

2023 IL App (4th) 220704

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

v.Tyler S. SHAW-SODARO, Defendant-Appellant.

NO. 4-22-0704

Appellate Court of Illinois, Fourth District.

Filed November 22, 2023

Appeal from the Circuit Court of Whiteside County, No. 18CF366, Honorable Patricia Ann Senneff, Judge Presiding.

James E. Chadd, Catherine K. Hart, Nancy L. Vincent, and Roxanna A. Mason, of State Appellate Defender’s Office, of Springfield, for appellant.

Terry Costello, State’s Attorney, of Morrison (Patrick Delfino, David J. Robinson, and Matthew S. Goldman, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

OPINION

JUSTICE DOHERTY delivered the judgment and opinion of the court.

¶ 1 Defendant Tyler S. Shaw-Sodaro was convicted of aggravated criminal sexual abuse (720 ILCS 5/11-1.60(c)(1)(i) (West 2018)) following a jury trial and was sentenced to nine years’ imprisonment. In this direct appeal, he argues (1) he was denied a fair trial where the prosecution repeatedly misstated the law in closing arguments, or, in the alternative, that counsel was ineffective for failing to object and request a curative jury instruction, (2) neither the victim’s age nor the time from his prior felony conviction justified the enhancement of his sentence, and the failure to include his pretrial detention period in the computation of the latter would represent an unconstitutional application of law, and (3) the trial court considered an improper factor inherent in the offense resulting in an impermissible double enhancement during sentencing. For the reasons that follow, we affirm.

¶ 2 I. BACKGROUND

¶ 3 The State charged defendant with a single count of aggravated criminal sexual abuse (id.). At the time of the incident that is the subject of this appeal, defendant was engaged to and shared a home with Monica E. The charging instrument alleged that on or about September 2, 2018, defendant, who was over the age of 17, committed an act of sexual conduct by knowingly touching the breasts of A.R. (Monica E.’s niece), who was under the age of 13. The charging instrument also contained A.R.’s birthdate next to her name, which showed she was 10 years old. There was no pretrial notice or motion specifically alerting defendant that the State would seek an extended-term sentence. Defendant posted bail and was released, but he was then arrested on charges filed in Whiteside County case No. 19-CF-188. Reasoning that he would not be able to afford bond to secure release on the new charges, defendant filed a motion to exonerate his bond in this case; his motion was granted, and he was maintained in pretrial detention on the charges in this case as well as the subsequent charge. A jury trial in this matter commenced on September 22, 2021.

¶ 4 A. Trial

¶ 5 The evidence at trial established that, one evening in September 2018, defendant arrived home after visiting a local tavern. Monica E. was asleep but A.R. was staying at their home over the weekend. A.R. testified that once defendant returned home, he initially mentioned having to go to the bathroom but instead sat on the couch next to her. He wrapped his arms around A.R. giving her "bear hugs," before he began to kiss her and ultimately placed a hand under her shirt, groping her chest. She was wearing a tank top with no bra underneath. She then reminded defendant that he previously said he needed to go to the bathroom. When defendant got up and went to the bathroom, A.R. put on a sweatshirt in the hopes of preventing the same occurrence when he returned. When defendant returned, A.R. told him she was going to go to the back porch because she was not feeling well. While on the porch, she reached out to her mother and grandmother, and her mother eventually picked her up from defendant’s home. The day after the incident, A.R. told her grandparents what had happened. After filing a police report, A.R. gave a recorded statement about what took place on the night in question. A.R. agreed that she was better able to remember what happened when she gave her recorded statement shortly after the fact rather than testifying to the events almost three years later.

¶ 6 A.R. liked spending time at Monica E. and defendant’s house prior to the incident; they would swim, "go eat out," and do "regular things a family should do." During the summer months, she spent five days a week at their home—more time than she spent at her own home. She had a good relationship with both Monica E. and defendant until she reported the incident at issue, after which Monica E. blocked her on social media and began telling others that she was lying.

¶ 7 The State also introduced a recording of the interview with A.R. conducted a day following the incident. In the recording, A.R. described the incident in far greater detail than she did in her trial testimony. In her interview, she explained that she believed defendant to be intoxicated at the time of the events in question and that he could not walk in a straight line. She also described a second incident, which occurred after she put on the sweatshirt. Defendant returned from the bathroom and once again began to hug her and put his hand up her sweatshirt; instead of skin-on-skin contact, defendant was touching her tank top before she stood up and went to the back porch.

¶ 8 A.R. also stated she was born in 2007. An officer with the Rock Falls Police Department and A.R.’s mother both testified that at the time of the offense A.R. was 10 years old.

¶ 9 Defendant only called one witness, Monica E. She had dated defendant for approximately five years. During that time, the two lived together along with her daughter and son. Defendant had a positive relationship with her children. When asked what A.R.’s reputation for truthfulness in the community was, Monica E. responded, "Bad."

¶ 10 B. Closing Arguments

¶ 11 During its initial closing argument, the State argued that by groping A.R.’s breast, defendant had committed the offense charged and that sufficient evidence had been introduced for the jury to find defendant guilty beyond a reasonable doubt. The State further argued, "And that’s essentially what your job boils down to. Is [A.R.] telling the truth when she says that [defendant] touched her breast[?] If she is, then the State has met all of the elements of the offense and [defendant] is guilty as charged." The State turned its focus to jury instructions related to credibility and attempted to minimize the fact that A.R. left out certain details during her testimony when compared to the recorded interview, arguing that

"[i]f you believe [A.R.] was telling the truth and the [defendant is guilty of Aggravated Criminal Sexual Abuse, then you should sign a verdict of guilty.

The only way you cannot sign a guilty verdict is if you believe [A.R.] is lying. And given all of the circumstances at play here and the fact that she had nothing to gain by lying, that is simply not a reasonable doubt and doesn’t make any sense."

¶ 12 Defense counsel did not object, but instead, during his closing, argued, "Now, [the State] has suggested to you that the only way you can find my client not guilty is if you believe [A.R.] lied, and respectfully I disagree. And I would like to take a little bit of time to explain to you why I don’t think that is a correct statement of the law.

First, this is not a battle of equals. Your job is not to take two equal sides and weigh them and see which side comes out on top. Our entire criminal justice system is based on the principle that a defendant, when he is accused or she is accused, is presumed to be innocent. And that presumption of innocence stays with them throughout the trial, and throughout our arguments, and throughout your deliberations unless you find beyond a reasonable doubt that the case has been proven.

You don’t have to believe that [A.R.] is lying, you just have to have a reasonable doubt. A doubt in your mind that is reasonable."

¶ 13 Defense counsel referenced jury instructions that would be given by the trial court, noting that the presumption of innocence remained with defendant and how "it is not overcome unless from all of the evidence in this case you, the 12 of you, are convinced beyond a reasonable doubt that he is guilty." Counsel then reminded the jury that the State had the burden of proof and that defendant was not required to "prove anything." He left the jury with this argument: "Not guilty means not proved. If you have a reasonable question in your mind about whether you can believe what [A.R.] said, you must, you must find [defendant] not guilty."

¶ 14 In the surrebuttal, the State argued again that "if A.R. is telling the truth then [defendant] is guilty of Aggravated Criminal Sexual abuse and that the only way that he could be not guilty is if [A.R.] were lying." Further, if members of the jury believed A.R. was lying, it was their duty to find defendant not guilty. If they believed she was telling the truth, then it was their duty to find him guilty. The State also informed the jury that it carried the burden to prove defendant committed the offense beyond a reasonable doubt. Defense counsel did not object or request a curative instruction.

¶ 15 The trial court issued standard instructions on the presumption of innocence and the burden of proof; these instructions informed the jury that a defendant is presumed innocent of the charge against him and that the presumption is not overcome unless all of the evidence in the case establishes guilt beyond a reason- able doubt. The court also informed the jury that the State bore the burden of proving defendant’s guilt beyond a reasonable doubt, that this burden remains on the State throughout the case, and that defendant is not required to prove his innocence. The following instructions were also given:

"Closing arguments are made by the attorneys to discuss the facts and circumstances in the case and should be confined to the

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