No. 1-19-1692 Order filed December 17, 2021 Fifth Division

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 16 CR 8398 ) JEROME FLAGG, ) Honorable ) Ursula Walowski, Defendant-Appellant. ) Judge, presiding.

PRESIDING JUSTICE DELORT delivered the judgment of the court. Justices Hoffman and Connors concurred in the judgment.

ORDER

¶1 Held: Defendant’s convictions are vacated and the matter is remanded for a new trial because the circuit court erred by denying defendant his right to be present at a critical stage of proceedings.

¶2 After a bench trial, the circuit court found defendant Jerome Flagg guilty of two counts of

predatory sexual assault and one count of aggravated criminal sexual abuse. He was sentenced to

an aggregate term of 21 years’ imprisonment. He appeals, arguing that the court erred by admitting

the video of a Victim Sensitive Interview (VSI) into evidence without first viewing it, and violated No. 1-19-1692

his constitutional right to be present at all critical stages by viewing the VSI video in chambers

during trial. We vacate defendant’s convictions and remand for a new trial.

¶3 BACKGROUND

¶4 Defendant was charged by indictment with 14 counts of sexual abuse of the victim S.C.,

including count I for predatory criminal sexual assault of a child based on contact between

defendant’s penis and S.C.’s “sex organ” when she was under 13 years old (720 ILCS 5/11-

1.40(a)(1) (West 2014)), count III for predatory criminal sexual assault of a child based on contact

between defendant’s penis and S.C.’s mouth when she was under 13 years old, and count XI for

aggravated criminal sexual abuse based on defendant touching S.C.’s breast for the purpose of

sexual arousal or gratification when she was under 18 years old and defendant was a family

member (720 ILCS 5/11-1.60(b) (West 2014)). The incidents allegedly occurred from January 27,

2015, through April 6, 2016.

¶5 At a proceeding on March 8, 2017, the State tendered the VSI video to defense counsel.

The trial court granted defense counsel’s motion to bring a laptop computer into the jail to show

defendant “the videos.” On April 17, 2017, at another proceeding, defense counsel indicated she

had not yet shown defendant what the court described as “the forensic interviews.” A different

public defender later assumed representation, and the court entered another order on November

15, 2018, permitting counsel to bring a DVD and laptop into the jail “to view discovery” with

defendant.

¶6 On May 31, 2019, the State moved for a hearing pursuant to 725 ILCS 5/115-10 (West

2018), seeking admission of S.C.’s hearsay statements to her family and those contained in the

VSI video. The motion explained that Shawntae Jones, a child forensic interviewing specialist,

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conducted the VSI at the Chicago Children’s Advocacy Center (CAC). The motion also noted that

S.C. would testify at trial.

¶7 The State attached a summary of the statements to the request, which is included in the

record on appeal. The summary indicates that on April 6, 2016, S.C. told various family members

that defendant “pulled down her pants and tried to put his penis in her vagina” on “numerous

occasions,” and once tried to place his penis in her mouth.

¶8 The VSI summary indicates that on April 7, 2016, Jones interviewed S.C. at the CAC

regarding her allegations against defendant. Jones “established that [S.C.] understood the

difference between the truth and a lie.” S.C. stated that defendant “touched her.” On the first

occasion, S.C. and defendant were playing video games in his bedroom when he “put a blind fold

[sic] over her eyes, took off her underwear and pants and tried to put his penis in her vagina.” His

penis “went inside her vagina but not all the way in.” S.C. was 11 years old. She further stated that

defendant sexually abused her on other occasions. Specifically, approximately a month after the

first incident, while the two were again in his bedroom alone, defendant kissed and touched S.C.

on her “tatas” and “booty” over her clothes. On another occasion, he entered S.C.’s bedroom while

she slept, removed her pants, and attempted to insert his penis in her vagina, during which his

penis contacted her vagina. Additionally, shortly before her twelfth birthday, defendant tried to

“push his penis in [S.C.’s] mouth.” She pushed him away, but his penis contacted her lips and

tongue. In another instance, she awoke in her bedroom to see defendant’s head near her vagina,

though he took no further action. On the final occasion, in February or March 2016, defendant

again entered S.C.’s bedroom while she slept, touched her buttocks, and tried unsuccessfully to

remove her pants.

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¶9 During the section 115-10 hearing, Donald G. testified that in April 2016, he lived in a

home on the 6500 block of South Mozart Street in Chicago, Illinois, with his wife Carolyn C.-G.,

Carolyn’s niece S.C., his grandson L.L. 1 and his daughters Donita C. and Donmisty C. Defendant,

Donmisty’s husband, and their son also lived in the home. On April 6, 2016, Donald received a

phone call from Carolyn, who was “in a panic.” She told Donald that defendant returned home that

day without Donmisty, whom Carolyn could not locate. During the call with Carolyn, Donmisty

called Donald from a police station in LaGrange, Illinois. She went to the police station because

she discovered defendant had pictures of Donita in the shower on his phone, and when Donmisty

confronted him, he also admitted that “he had been having sex with S.C.”

¶ 10 Donald drove Donmisty home from the police station. When they arrived, Donmisty told

the family of defendant’s admission. Carolyn became upset and confronted S.C., who started

crying. Carolyn also called the police, but when the officers arrived and attempted to speak with

S.C., she was unresponsive. At this point, Donald went with S.C. to a separate room, where S.C.

told him that defendant “had been trying to have sex with her.” S.C described the blindfold

incident, and stated defendant attempted sexual acts with her “several times.”

¶ 11 On cross-examination, Donald testified that prior to April 6, 2016, he never observed any

inappropriate behavior from defendant towards S.C., nor had S.C. informed him of such behavior.

After Donmisty informed the family of defendant’s conduct, Carolyn shouted at S.C. “to tell what

happened.” S.C. did not respond initially, then denied that anything happened before ultimately

speaking to Donald. S.C. did not tell Donald when the first incident occurred or how many times

1 This individual is identified as both L.L. and L.M. in the report of proceedings; we refer to him as L.L.

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defendant attempted to insert his penis in her vagina. S.C. told Donald that she did not tell anyone

of the incidents because defendant “threatened her that, if she told, *** [Donmisty’s] baby would

be taken away.” The court continued the hearing to a later date.

¶ 12 When the hearing resumed, defendant stated, “I want to state for the record ineffective

counsel.” He continued in relevant part that defense counsel “showed me the video, but they sped

through it, so I really didn’t get a good look at it.” He further stated, “I have not seen anything in

my discovery; police reports, witness’ testimony, accuser statement, [etc.].”

¶ 13 When the hearing resumed, Jones testified that she interviewed S.C. at the CAC on April

7, 2016. Jones started by “building rapport” with S.C., then transitioned to discuss S.C.’s family,

at which point S.C. “went into a disclosure” regarding the incidents. During the disclosure, Jones

asked “open-ended questions, multiple choice questions and *** yes or no questions.” Jones

agreed that S.C. disclosed allegations of sexual abuse, and used terminology typical of her age.

Jones determined that S.C. understood the difference between the truth and a lie “near the end of

the interview.”

¶ 14 The State introduced People’s Exhibit No. 1, a DVD containing the VSI video. Jones

testified the video was an accurate depiction of the VSI.

¶ 15 On cross-examination, Jones agreed that it is best practice to determine that an interviewee

knows the difference between the truth and a lie at the outset of an interview. Jones did not follow

that procedure here, however, because S.C. went into active disclosure when Jones asked about

S.C.’s family, and it was also “best practice *** if the child goes into disclosure that you allow

them to continue.”

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¶ 16 Following argument, the court admitted the VSI video but barred Donald’s testimony

regarding S.C.’s statements on April 6, 2016. In so ruling, the court explained that Jones’s

testimony demonstrated “sufficient safeguards of reliability” for the VSI video. Regarding S.C.’s

statements to Donald, however, the court believed the family’s agitated condition and S.C.’s initial

unwillingness to speak freely suggested the testimony did not have sufficient safeguards of

reliability. The prosecutor asked, “I am assuming by your ruling that *** because this is a bench

trial that you will evaluate the content of the video *** as we publish it.” The court responded,

“Right. That’s a trial issue.”

¶ 17 At trial, S.C. testified that in January 2015, defendant began touching her in a “[sexual]

way.” On the first occasion, she and defendant were alone in his bedroom playing video games.

At some point, he closed the door, blindfolded her, and started “touching” her “vagina” and “butt.”

He then “threw” her on the bed, removed her pants, and attempted to insert his penis in her vagina.

S.C. ultimately pushed him away and left the room, but his penis contacted her vagina during the

incident.

¶ 18 On the second occasion, S.C. was asleep in her bedroom when she awoke to defendant

“standing over” her. Her cousin L.L. shared the room with S.C., and was asleep in a separate bed.

Defendant partially removed S.C.’s pants and unsuccessfully attempted to insert his penis in her

vagina. L.L. did not awaken. Defendant stopped because S.C. told him if he did not, she would

“tell.” He responded that if she did, Donmisty’s child would be taken away. She was 11 years old

at this time. Similarly, on a separate date, defendant again entered her bedroom while she slept and

touched her “breasts.” In another incident, when S.C. was again alone with defendant playing

video games in his bedroom, he walked in front of her with his penis exposed and attempted to

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“put it in [her] mouth.” His penis contacted her tongue. S.C. believed this incident also occurred

when she was 11 years old. Defendant stopped when S.C. pushed him away. On the final occasion,

when S.C. was 12 years old, defendant entered her room while she slept and unsuccessfully

attempted to remove her pants.

¶ 19 On cross-examination, S.C. testified that Donald, Carolyn, and Donmisty were at home

during the first incident, but she did not call for help. She did not recall what time of year the first

or second incidents occurred. Defendant touched her vagina during the second incident. L.L. was

not in the room during the final incident.

¶ 20 Assistant State’s Attorney Christina Kye testified that on May 3, 2016, she was assigned

defendant’s case and informed he was in custody. Kye met with defendant at the police station and

Mirandized him, at which time he agreed to speak with her. She then interviewed defendant, and

identified People’s Exhibit No. 1 as an accurate video recording of a portion of the interview.

¶ 21 The state published People’s Exhibit No. 1 to the court. In the video, which is included in

the record on appeal, Kye enters the room, introduces herself as a state’s attorney, and explains

she does not represent defendant. He states he understands. Defendant initially claims he only had

sexual contact with S.C. on one occasion, when he awoke to find S.C.’s mouth on his penis. He

denies that he ever attempted to insert his penis in S.C.’s vagina, forced his penis into S.C.’s mouth,

performed oral sex on S.C., or touched S.C.’s breasts or buttocks. He believes Carolyn told S.C.

to make these allegations. Kye informs defendant that she was present when S.C. detailed the

allegations in an interview, and that Kye also interviewed both Donmisty and Donald. Donmisty

told Kye that defendant admitted he had a “sexual relationship” with S.C., and Donald stated that

S.C. told him about defendant’s conduct. Defendant eventually admits that he told Donmisty he

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had a sexual relationship with S.C., including his penis touching S.C.’s vagina. He also admits that

he touched S.C.’s breasts and buttocks, S.C. “put her mouth on” his penis, and he put his mouth

on her vagina. Defendant states he “was put into that situation” and did not “initiate” the sexual

relationship. He never threatened S.C. The sexual relationship started in March 2015 and continued

until February 2016. In the last incident, S.C. performed oral sex on him and he performed oral

sex on S.C.

¶ 22 On cross-examination, Kye testified that she did not ask defendant if he had any mental

health diagnoses, required special education in school, took medication, or had consumed alcohol

or drugs before the interview.

¶ 23 Donmisty testified that on April 6, 2016, she and defendant argued while he drove her

home from work over a video she found on his cell phone. During the argument, he admitted that

he had a sexual relationship with S.C. Donmisty grew angry and tried to hit defendant, who stopped

the vehicle. She exited, and he drove away. A woman pulled over and allowed Donmisty to use

her cell phone. Donmisty called defendant three times, who did not answer. She then walked to a

police station. Eventually, she contacted Donald, who drove her home. When they arrived, there

was a family meeting, after which Donald called the police. Defendant did not return home during

the family meeting.

¶ 24 On cross-examination, Donmisty testified that she and defendant had marital problems

before April 6, 2016. S.C. did not tell Donmisty about defendant’s conduct before the family

meeting.

¶ 25 The State entered a stipulation that if called, Jones would testify consistently with her

testimony at the section 115-10 hearing. The State then entered the VSI video into evidence as

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People’s Exhibit No. 2. The court stated, “that will be admitted, and I will look at that.” The VSI

video was not played in open court.

¶ 26 Defendant moved for a directed verdict. The State asked that the court review the VSI

video before ruling. The court agreed and stated, “I’m going to take a quick break. I’m going to

take a look.” Defendant did not object. When the trial resumed, the court granted defendant’s

motion in part and dismissed counts II and VII through X, but permitted counts I, III through VI,

and XI through XIV to proceed.

¶ 27 Defendant testified on his own behalf. He explained that he had mental health diagnoses

of paranoid schizophrenia, ADD, ADHD, manic depression, and OCD. He required special

education in school. On April 6, 2016, Donmisty became angry during their drive “for no reason,”

then “jumped out” of the vehicle. He never told her he had sex with S.C. Defendant looked for

Donmisty, then returned home.

¶ 28 On May 3, 2016, he went to the police station at Chicago police detective Alisa Gladney’s

request. He consumed alcohol and smoked cannabis beforehand. When he arrived, police officers

placed him in an interrogation room, shackled him, and handcuffed him to the wall. Officers then

interrogated him, and when he denied any misconduct with S.C., they became aggressive and

accused him of lying. At some point, according to defendant, Gladney drew a firearm, cocked it,

placed it to his head, and stated, “if you don’t tell us the truth or if you don’t say what we need you

to say, then we’re going to kill you.” This “terrified” defendant, and he then said he had sex with

S.C. because the officers “told [him] to.” Officers also placed a bag over his head and struck him

with a firearm.

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¶ 29 On cross-examination, defendant denied he told Donmisty that he had sexual relations with

S.C. After the officers beat and threatened him, he “did not say what [Gladney] wanted [him] to

say,” but “did say enough to incriminate” himself. When he later spoke to Dye, he believed she

was his attorney.

¶ 30 In rebuttal, Gladney testified that during defendant’s time at the police station, she did not

threaten, restrain, or harm defendant, hold a firearm to his head, or demand he confess, and she

did not see any other officer engage in such conduct.

¶ 31 Gladney identified People’s Exhibit No. 4 as a DVD containing an accurate video

recording of her interview with defendant. The State published portions of the video to the court.

¶ 32 The video, included in the record on appeal, shows defendant and Gladney in an

interrogation room on May 3, 2016. Gladney Mirandizes defendant, who indicates he understands

his rights. He states that he believes he is at the police station because he confessed to Donmisty

that he had sexual relations with S.C. The incident with S.C. occurred in March or April 2015. He

was “tipsy” and asleep in his bedroom when S.C. entered and performed oral sex on him while he

slept. Initially he thought S.C. was Donmisty. When he realized it was S.C., he stopped her and

told her to leave. He told Donmisty because the incident upset him, and he denied ever

inappropriately touching S.C.

¶ 33 Gladney tells defendant that Donmisty stated she found pictures of Donita in his phone,

which he denies. Gladney further explains that S.C. was interviewed and stated that “several

things” happened between her and defendant. Defendant denies he blindfolded S.C., touched her

private parts, or attempted to insert his penis in her vagina. The video does not depict Gladney,

Dye, or anyone else restrain, threaten, or physically harm defendant.

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¶ 34 On cross-examination, Gladney testified that she did not inquire about defendant’s mental

health history or education level, or ask if he consumed alcohol earlier that day. On redirect, she

stated that she did not smell alcohol or cannabis in the room during the interview.

¶ 35 Following closing arguments, the court found defendant not guilty on counts IV through

VI but guilty of counts I, III, and XI through XIV. In so finding, the court stated that it “was

convinced beyond any doubt” that S.C.’s testimony was true, and described S.C.’s testimony as

“corroborated by the other witnesses.” The court continued that S.C. was “a lot more specific with

[Jones]” than in court, but the VSI video “corroborated” and “lent credibility to” S.C.’s testimony.

The court further stated, “There’s nothing to lend any sort of credibility to [defendant’s]

allegations” regarding the officers’ conduct during his interview.

¶ 36 The court denied defendant’s motion for a new trial. The matter moved to sentencing,

where, after a hearing, the court merged counts XI through XIV into count XI and sentenced

defendant to nine years’ imprisonment on count I for predatory criminal sexual assault (720 ILCS

5/11-1.40(a)(1) (West 2014)), nine years’ imprisonment on count III for predatory criminal sexual

assault (720 ILCS 5/11-1.40(a)(1) (West 2014)), and three years’ imprisonment on count XI for

aggravated criminal sexual abuse (720 ILCS 5/11-1.60(b) (West 2014)), all to run consecutively,

for a total of 21 years’ imprisonment. The court denied defendant’s motion to reconsider sentence.

Defendant timely appealed.

¶ 37 ANALYSIS

¶ 38 On appeal, defendant first argues that the court erred by admitting S.C.’s hearsay

statements contained in the VSI video without first reviewing the video during the section 115-10

hearing.

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¶ 39 Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Ill.

R. Evid. 801(c) (eff. Oct. 15, 2015). Hearsay statements are generally inadmissible unless they fall

under an exception. People v. Tenney,

(2002). The relevant exception here,

established by 725 ILCS 5/115-10 (West 2018), allows in relevant part for the admission of an

out-of-court statement by a victim of sexual abuse under the age of 13 where, “The court finds in

a hearing conducted outside the presence of the jury that the time, content, and circumstances of

the statement provide sufficient safeguards of reliability,” and, relevant here, the victim testifies at

trial. 725 ILCS 5/115-10(a), (b)(1), (2)(A) (West 2018).

¶ 40 We review a trial court’s evidentiary decisions, including whether to admit statements

pursuant section 115-10, for abuse of discretion. People v. Stechly,

(2007). An

abuse of discretion occurs when the trial court’s decision is “arbitrary, fanciful or unreasonable,”

or where “no reasonable person would agree with the position adopted by the trial court.” People

v. Becker,

(2010). In a bench trial, the trial court, as factfinder, is trusted to

ignore inadmissible evidence and base its findings only on admissible evidence, unless a party

rebuts this presumption through an affirmative showing from the record. People v. Naylor,

(2008).

¶ 41 The record shows, and the parties agree, that the circuit court did not view the VSI video

before ruling the State could introduce it at trial. Defendant argues that the court therefore could

not have properly weighed the content and circumstances of S.C.’s statements therein. The State

argues that the summary document it submitted, along with Jones’s testimony, sufficed for the

court to make an informed ruling.

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¶ 42 On this record, we find that the court did not abuse its discretion by admitting the VSI

video into evidence following the section 115-10 hearing without first viewing the video. The

statute specifies that the hearing must take place outside the presence of a jury, but this was a bench

trial. Accordingly, we must presume the court ignored all inadmissible evidence, absent a positive

showing from the record to the contrary. Naylor,

. Thus, here, we must

presume that when the court reviewed the VSI video in chambers, it ignored any portions it found

lacked sufficient indicia of reliability. See People v. Balle,

(1992) (no

error where trial court did not hold a section 115-10 hearing before considering certain evidence

during a bench trial because the court was presumed to determine whether the evidence at issue

had sufficient indicia of reliability before considering it). Defendant complains that the

circumstances of the VSI were suggestive, but makes no affirmative showing from the record that

the court failed to analyze the circumstances when reviewing the video, as the statute expressly

requires. Therefore, the claim fails.

¶ 43 Additionally, even if we found the court erred in admitting this evidence, defendant would

still not be entitled to relief. A defendant is not entitled to relief if the trial court’s admission of

hearsay evidence was harmless error. “The admission of hearsay evidence is harmless error where

there is no reasonable probability that [the factfinder] would have acquitted the defendant absent

the hearsay evidence.” People v. Nevitt,

(1990). Here, the remaining evidence

was so overwhelming that the court likely would have found defendant guilty even without the

VSI video. Defendant’s statements to Gladney and Kye, S.C.’s trial testimony, and the testimony

of Donmisty and Jones provide more than enough evidence from which to establish defendant’s

guilt beyond a reasonable doubt. We note that the court found S.C.’s testimony credible and

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defendant’s testimony incredible, and we must defer to this finding on review absent specific

circumstances not present here. See People v. Kite,

(1992). It follows that even

if we were to find that the court erred, the error would be harmless.

¶ 44 Defendant next claims that the court violated his right to be present when it viewed the VSI

video in chambers during the trial. The State argues that defendant forfeited this claim, and that

the claim is meritless because the court’s viewing of the VSI video was not a critical stage of the

proceedings.

¶ 45 Defendant admits that he did not preserve this claim through a proper objection at trial and

inclusion in a posttrial motion, but argues we may reach the issue on plain error review. See People

v. Staake,

. Plain error review is appropriate where a “clear or obvious error

occurred and the evidence is so closely balanced that the error alone threatened to tip the scales of

justice against the defendant, regardless of the seriousness of the error,” or if the error is “so serious

that it affected the fairness of the defendant’s trial and challenged the integrity of the judicial

process, regardless of the closeness of the evidence.” People v. Piatkowski,

(2007). “The first step of plain-error review is determining whether any error occurred.” People v.

Thompson,

(2010). Defendant argues the court’s in-chambers viewing of the

VSI video constituted second prong plain error.

¶ 46 Generally, a criminal defendant has the right under both the Illinois and United States

Constitutions to be present at all critical stages of proceedings. People v. Stroud,

(2004). This right is not absolute, and a defendant is only “guaranteed the right to be present

at any stage of the criminal proceeding that is critical to its outcome if his presence would

contribute to the fairness of the procedure.” People v. Lofton,

(2000) (citing

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Kentucky v. Stincer,

(1987)). A defendant’s absence, even from a critical stage,

will not constitute error unless it “caused the proceeding to be unfair or if his absence resulted in

a denial of an underlying substantial right.” People v. Lindsey,

(2002).

¶ 47 Defendant, citing People v. Lucas,

, argues that the court’s

viewing of the VSI video was a critical stage because his absence prevented him from reviewing

all the evidence against him before deciding whether to testify, a violation of his constitutional

rights. In Lucas, the defendant was charged with driving under the influence (DUI), among other

charges, and the trial court viewed a video of the traffic stop in chambers, which the record

suggested defendant had never seen before. Id. ¶¶ 5-6. Defense counsel did not object. Id. The trial

court stated that it relied on the video in part in finding defendant guilty. Id. ¶ 7. This court found

that the trial court committed second prong plain error because the viewing of the video constituted

a critical stage where the video “represented a significant portion of the evidence against” the

defendant, and she never had the opportunity to review the video before deciding whether to

testify. See Id. ¶¶ 14-15, 19, 21.

¶ 48 In recent cases involving a trial court’s in-chambers review of evidence, this court has

explained that where the defendant is “able to view all of the State’s evidence against him at trial”

it follows that “his decision regarding his right to testify [is] not impacted” by the procedure. See

People v. Richardson,

; see also People v. Martinez,

. Martinez is instructive. There, we denied the defendant’s claim that the trial

court violated his right to be present by viewing a VSI video in chambers because the record

unambiguously showed the trial court ensured the defendant viewed the VSI video before trial.

Martinez,

. We distinguished Lucas on this basis, and emphasized

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that because “the record [was] clear that defendant viewed the video at issue” and “was thus aware

of all the evidence against him” before deciding whether to testify, “the court’s private viewing of

the video in chambers did not impact the fairness of defendant’s trial or violate any of defendant’s

substantial constitutional rights.”

¶ 49 The parties here dispute whether the record demonstrates defendant viewed the VSI video.

The record shows that the trial court did not view the video during the section 115-10 hearing,

where defendant was present, and then viewed the video in chambers at trial. Thus, the record is

clear defendant did not view the VSI video during in-court proceedings. The State points to

defendant’s pretrial statement that his attorneys “sped through” a video with him as proof he

viewed the VSI video. But defendant did not specify to which video he was referring, and the

evidence in this matter included two crucial videos: the VSI video, and the video of his statements

to Gladney and Kye. Additionally, the record of pretrial proceedings shows defendant’s attorneys

twice requested to bring a laptop and DVDs into the prison to review evidence with defendant, but

does not reveal what the DVDs contained or if these visits actually occurred. Finally, although the

State created a summary of the VSI, which it provided to defense counsel, the record is unclear

regarding whether defendant read the summary.

¶ 50 Initially, we note that though defense counsel did not object to the court’s proposed viewing

procedure during the trial, this does not constitute a waiver of defendant’s right to be present. Such

a waiver must be both knowing and voluntary, and the record shows the trial court never explained

to defendant that he had a right to be present for the viewing. See Lucas,

,

¶ 14 (citing Lofton,

).

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¶ 51 Based on these facts, we find that the court erred by viewing the VSI video in chambers

rather than playing it in open court in defendant’s presence, and this error constituted second prong

plain error because it denied defendant his constitutional right to be present at all critical stages of

proceedings. Here, unlike in Martinez, the court failed to ensure defendant viewed the VSI video,

and there is insufficient indication in the record for us to conclude that he ever saw it. On this

understanding, the court’s decision to view the VSI video in chambers denied defendant his right

to be present at a critical stage because the VSI was a significant aspect of the evidence against

him. The VSI video contained a pretrial statement by S.C. describing her allegations against

defendant in detail. Her credibility was central to this case, as there were no other witnesses to the

alleged abuse. Moreover, the court stated it considered the VSI video in arriving at its guilty

finding, explaining that the VSI video bolstered S.C.’s credibility. It follows that this evidence was

significant, and therefore defendant had a right to review it before deciding whether to testify,

which the court denied him by viewing the VSI video only in chambers.

¶ 52 To avoid this result, the State argues that defendant knew generally of the video’s contents

based on Jones’s testimony at the section 115-10 hearing and the State’s written summary. But

these accounts came from a State’s witness and a state’s attorney-created document. It is unclear

whether the defendant even read the document. The evidence itself, which the trial court expressly

considered in assessing credibility and finding defendant guilty, was the VSI video, not testimony

about the VSI video or a written summary of S.C.’s statements at the VSI.

¶ 53 The State next argues that a court’s in-chambers review of evidence the defendant has not

seen does not necessarily impact the defendant’s right to be present, citing People v. Groebe,

. Indeed, in Groebe, this court rejected the defendant’s right to be present

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claim where the trial court reviewed a video of a DUI traffic stop in chambers, and the record did

not indicate that the defendant saw the video. Groebe,

. But

Groebe does not compel a different result here. In Groebe, the court found that the defendant failed

to demonstrate the video evidence was significant, stating, “There is no argument or anything to

suggest the trial court’s procedure prejudiced defendant’s ability to aid in her defense or to decide

whether to testify.” Id. ¶ 51-52. Conversely, here, defendant argues, and the record suggests, that

the trial court’s decision did impact defendant’s underlying constitutional right because it denied

him the chance to review significant evidence entered against him, as explained above.

Additionally, in Groebe, we emphasized that there was no indication the trial court gave the video

any weight in making its findings. Id. ¶ 52. Here, however, the court considered the video in its

credibility determinations and guilty finding, stating that the video “corroborated” and “lent

credibility to” S.C.’s testimony. Groebe is distinguishable from this matter on these bases.

¶ 54 The State further argues, citing People v. Myles,

, and People v.

Young,

, that a trial court’s viewing of a VSI video in chambers is not a

critical stage of proceedings. Neither case suggests a different outcome here. First, in Myles, the

defendant’s testimony revealed he saw the video evidence at issue before deciding whether to

testify, and the court rejected his right to be present claim accordingly. See Myles,

. Young is also inapposite because the Young court did not consider the issue

presented here; instead it analyzed whether the trial court’s viewing of the VSI video in chambers

during the section 115-10 hearing constituted a critical stage. Young,

. This analysis does not implicate a defendant’s right to be present for the introduction

of significant evidence against him at trial.

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¶ 55 Finally, the State argues that the record demonstrates the court’s in-chambers viewing of

the VSI video was not a critical stage because the additional evidence against defendant was strong.

But the strength of the other evidence does not impact our analysis here. The question we must

resolve for this second prong plain error claim is whether the court’s violation of defendant’s right

to be present impacted a fundamental right such that “it affected the fairness of the defendant’s

trial and challenged the integrity of the judicial process.” Piatkowski,

. As

explained above, defendant has made this showing, and thus the court’s error constitutes second

prong plain error requiring reversal.

¶ 56 CONCLUSION

¶ 57 The court’s viewing of the VSI video here constituted a critical stage of proceedings, and

the court denied defendant his right to be present at that critical stage. This error constituted second

prong plain error because it violated defendant’s constitutional rights and rendered the trial process

unfair. Accordingly, we vacate defendant’s convictions, and remand for a new trial. 2

¶ 58 In so holding, we note that a retrial does not pose double jeopardy concerns. The United

States and Illinois constitutions allow retrial “when a conviction has been overturned because of

an error in the trial proceedings,” but prohibit retrial “if the evidence introduced at the initial trial

was insufficient to sustain the conviction. [Citation.]” People v. Drake,

.

“Retrial is the proper remedy if the evidence presented at the initial trial, including any improperly

admitted evidence, was sufficient to sustain the conviction. [Citation.]” Id. ¶ 21. In determining

2 We note that this practice is occurring far too often, and appeals such as this could be obviated if trial courts would simply review all non-testamentary evidence in open court and in the presence of the defendant. See, e.g., Richardson,

; Martinez,

; Groebe,

; Lucas,

.

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the sufficiency of the evidence, a reviewing court considers whether, after viewing the evidence

in the light most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. Id.

¶ 59 Viewing the trial evidence in the light most favorable to the prosecution, a rational trier of

fact could have easily found beyond a reasonable doubt that defendant was guilty of the charged

offenses. Therefore, double jeopardy does not bar a new trial.

¶ 60 Vacated and remanded.

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