FIFTH DIVISION May 27, 2022

No. 1-20-0719

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT

) THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court of ) Cook County. Plaintiff-Appellee, ) ) v. ) No. 17 CR 17697 ) CRAIG HARTFIELD, ) ) Honorable Charles P. Burns, Defendant-Appellant. ) Judge, presiding.

PRESIDING JUSTICE DELORT delivered the judgment of the court with opinion. Justices Hoffman and Cunningham in the judgment and opinion.

OPINION

¶1 Following a bench trial, defendant Craig Hartfield was convicted of two counts of

predatory criminal sexual assault, one count of aggravated criminal sexual assault, and two counts

of criminal sexual assault. The circuit court sentenced him to an aggregate term of 76 years’

imprisonment. On appeal, defendant contends that he received ineffective assistance of counsel

based upon counsel’s failure to move to dismiss the aggravated criminal sexual assault count as

time-barred. We reverse defendant’s conviction for aggravated criminal sexual assault and remand

this cause for sentencing on the lesser-included offense of criminal sexual assault. No. 1-20-0719

¶2 BACKGROUND

¶3 This case illustrates the importance of precisely drafting criminal indictments. On

December 13, 2017, the State charged defendant with three counts of predatory criminal sexual

assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2002)), one count of aggravated criminal sexual

assault (720 ILCS 5/11-1.30(a)(2) (West 2016)), four counts criminal sexual assault with force

(720 ILCS 5/12-13(a)(1) (West 2008); 720 ILCS 5/11-1.20(a)(1) (West 2016)), and three counts

of criminal sexual assault of a family member (720 ILCS 5/12-13(a)(3) (West 2008)). The charges

stemmed from allegations that defendant committed multiple acts of sexual abuse against his

daughter, T.H., beginning when she was nine years old. In particular, count IV of the indictment,

which charged defendant with aggravated criminal sexual assault, alleged that, on or about July 2,

2007, and “continuing on through” February 25, 2016, defendant:

“knowingly committed an act of sexual penetration upon C.H.,[1] to

wit: contact between Craig Hartfield’s penis and T.H.’s sex organ,

by the use of force or threat of force, and Craig Hartfield caused

bodily harm to T.H., to wit: pregnancy,

and the statute of limitations for this prosecution is extended

*** in that this prosecution has commenced within ten (10) years of

the commission of the offense and T.H. reported the offense to law

enforcement authorities within three (3) years after the commission

of the offense.”

1 Although the indictment erroneously states that defendant committed the act of sexual penetration on “C.H.,” defense counsel at oral argument did not dispute our characterization that this was a mere typographical error. The subsequent references to the specific acts and injuries in the charging instrument only refer to T.H.

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Count VIII of the indictment charged defendant with simple, not aggravated, criminal sexual

assault. Count VIII also charged defendant with contact between his penis and T.H.’s sex organ

by the use of force or threat of force—but it did not contain the additional allegation “and Craig

Hartfield caused bodily harm to T.H., to wit: pregnancy.” Other than the removal of the 11-word

clause referring to pregnancy, counts IV and VIII were textually identical.

¶4 At trial, T.H. testified that she was born on June 2, 1989, that defendant was her father, and

that she had three younger sisters: C.H., A.H., and R.H. T.H. stated that she and her sisters lived

with defendant and her mother Dorothy on South Indiana Avenue in Chicago at the time of the

offenses. T.H. has two children, K.H., who was seven years old at the time of trial, and M.P.

¶5 T.H. stated that, one night when she was nine years old, defendant came into the bedroom

she was sharing with her sisters and began to “fondle” her by touching her vagina under her

underwear with his hands. Later, when she was “nine or ten,” defendant then came into her

bedroom and touched her vagina with his hands and then his mouth. T.H. estimated that defendant

put his mouth on her vagina “maybe once or twice a week.” Then, when T.H. was 11 years old,

defendant went into her room, placed a knife against her throat, ordered her to quietly follow him

out of the room and lie down on a couch in the front room, where he vaginally penetrated her with

his penis. T.H. said that she was initially on her back, and then defendant told her to turn over onto

her hands and knees, at which point he penetrated her again with his penis and then ejaculated onto

her back. T.H. said that defendant said nothing to her during or after the assault.

¶6 Next, when T.H. was “12 or 13,” her mother was going to take T.H. and her sisters to a

Halloween party, but before everyone left, defendant said that T.H. could not go. After everyone

else left, defendant brought T.H. to the front room and told her he wanted to “try something.”

Defendant then took out his erect penis, placed it in T.H.’s mouth, and started “moving back and

3 No. 1-20-0719

forth” until she turned her head away, gagging. T.H. said that, later that day before everyone

returned from the Halloween party, defendant forced her to try again in the bathroom. Defendant

had T.H. sit on the toilet while he placed his penis in her mouth until he ejaculated. T.H. stated

that, afterward, defendant seemed apologetic and told her that she would not have to do that

anymore. Around that same time, T.H. spoke to her sister C.H. about the abuse. T.H. further stated

that, although she wrote a letter to her school counselor about the abuse when she was in eighth

grade, defendant found the letter, took it, and told her and C.H. that, if T.H. had given the letter to

the counselor, T.H. and her sisters would have been separated and placed in foster care. Defendant

then “home schooled” T.H. after the eighth grade.

¶7 When T.H. was 14 and 15 years old, defendant would come into her room at night, take

her to the front room and have sexual intercourse with her. T.H. said this typically occurred “about

three, maybe four times a week.” T.H. added that defendant would occasionally also have sexual

intercourse with her in his and her mother’s bedroom if either no one was home during the day or

if everyone else was in the front room, kitchen, or “otherwise occupied.” When T.H. was 18 or 19,

defendant then began penetrating her anus with his penis in the front room at night. T.H. said that

these incidents also took place “a few times over maybe a couple of years.”

¶8 In March 2012, when T.H. was “22 or 23,” T.H. discovered that she was pregnant.

Although defendant told T.H. to keep it a secret, she told C.H. T.H. never saw a doctor during her

pregnancy and did not obtain any prenatal care. T.H. ultimately gave birth to K.H. in October

2012. T.H. said that defendant drove her and C.H. to a secluded spot near his workplace where she

gave birth in the backseat of the car. After she gave birth, T.H. stated that there were “maybe one

or two” additional sexual acts between defendant and her. T.H. believed that defendant did not

want to risk getting T.H. pregnant again.

4 No. 1-20-0719

¶9 On February 25, 2016, T.H., her sisters, K.H., and C.H.’s son (E.H.) left their house and

went to a domestic violence shelter. T.H. did not immediately go to the police, however, because

she and her sisters “just wanted to leave it behind” and start “living our own lives.” Nonetheless,

T.H. went to the police in August 2017 because defendant refused to let their mother leave.

¶ 10 On cross-examination, T.H. admitted that she did not leave the house until after she had

turned 21 years old. T.H. further conceded that she never told anyone at school or in her

neighborhood about defendant assaulting her. On redirect examination, T.H. explained that she

believed defendant when he told her that the family would be separated and her mother would go

to jail. T.H. added that she did not want to leave her sisters behind for fear that defendant would

use them to “replace” her and start assaulting them. T.H. also stated, “we tried leaving a few times

before,” but defendant would block the door and tell them they had nothing and nowhere to go.

¶ 11 Following T.H.’s testimony, the State presented evidence that a DNA test revealed that

there was a 99.999% chance that defendant was the father of K.H. The State then rested its case.

Defendant elected not to testify, and the defense elicited the testimony of defendant’s niece, who

stated that she met T.H. and her sisters, as well as K.H. and E.H., when they were about three years

old. The defense then rested its case.

¶ 12 After the parties presented their closing arguments, the circuit court found defendant guilty

of, inter alia, count IV, alleging aggravated criminal sexual assault with the specified bodily harm

of pregnancy, and count VIII, which alleged criminal sexual assault predicated upon sexual contact

between defendant’s penis and T.H.’s sex organ but did not allege any specific bodily harm such

as pregnancy.

¶ 13 The circuit court subsequently held a sentencing hearing. Following the arguments of the

parties, the court sentenced defendant to an aggregate term of 76 years’ imprisonment, which

5 No. 1-20-0719

included a consecutive 20-year sentence for the aggravated criminal sexual assault conviction

(count IV), but the court did not impose a sentence for the conviction on count VIII. Instead, the

court merged count VIII into count IV. This appeal follows.

¶ 14 ANALYSIS

¶ 15 Defendant’s sole contention is that his trial counsel rendered constitutionally ineffective

assistance for failure to file a pretrial motion seeking dismissal of count IV as time-barred.

Defendant argues that, although the extended statute of limitations allows for the prosecution of

aggravated criminal sexual assault up to 10 years after the offense if the victim reports the offense

to law enforcement within 3 years of the commission of the offense, the victim in this case did not

report her offense within 3 years. Defendant concludes that trial counsel rendered objectively

unreasonable assistance in failing to file the motion and that he was prejudiced by this omission

because the charge would have been dismissed.

¶ 16 Both the federal and state constitutions guarantee criminal defendants the right to the

effective assistance of counsel. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. To

establish ineffective assistance of counsel, a defendant must show both a deficiency in counsel’s

performance and prejudice resulting from that deficiency. People v. Crawford,

(citing Strickland v. Washington,

(1984), and People v. Albanese,

(1984) (adopting Strickland)). In other words, pursuant to Strickland, a

defendant must show the following to prevail on a claim of ineffective assistance: (1) counsel’s

performance fell below an objective standard of reasonableness and (2) the deficient performance

so prejudiced the defense as to deny the defendant a fair trial.

(citing People v. Nowicki,

(2008), citing Strickland,

).

6 No. 1-20-0719

¶ 17 To meet the first prong of objectively unreasonable performance, a defendant must

overcome the “ ‘strong presumption that the challenged action or inaction of counsel was the

product of sound trial strategy and not of incompetence.’ ”

¶ 130 (quoting People v. Coleman,

(1998)). To meet the second prong of prejudice, a defendant must show a

reasonable probability, i.e., “ ‘a probability sufficient to undermine confidence in the outcome,’ ”

that, but for defense counsel’s deficient performance, the result of the trial would have been

different.

(quoting Strickland,

); see also People v. Houston,

(2007).

¶ 18 Failure to show either deficient performance or sufficient prejudice defeats an

ineffectiveness claim. Crawford,

(citing Strickland,

). Whether defendant received ineffective assistance of counsel is a mixed question of fact and

law.

(citing Strickland,

). Therefore, although we must defer to the circuit

court’s factual findings, we review de novo the ultimate legal issue of whether counsel’s omission

supports an ineffective assistance claim.

¶ 19 Section 11-1.20 of the Criminal Code of 2012 (Code) defines criminal sexual assault as an

act of sexual penetration through the use or threat of force. 720 ILCS 5/11-1.20(a)(1) (West 2016).

Section 11-1.30 of the Code provides in relevant part that an accused commits aggravated criminal

sexual assault if he commits criminal sexual assault and causes bodily harm to the victim.

§ 11-

1.30(a)(2). Bodily harm is defined as “physical harm, and includes, but is not limited to, sexually

transmitted disease, pregnancy, and impotence.” Id. § 11-0.1. The term “bodily harm” in the

context of an aggravated criminal sexual assault case has the same meaning as under the battery

statute. People v. Johnson,

(citing People v. Bishop,

(2006)). Bodily harm, while “difficult to pinpoint exactly,” requires “some sort of

7 No. 1-20-0719

physical pain or damage to the body, like lacerations, bruises[,] or abrasions, whether temporary

or permanent.” People v. Mays,

(1982); accord Bishop,

. To

determine whether an accused’s actions caused bodily harm, the trier of fact may both consider

direct evidence of injury and also infer an injury based upon circumstantial evidence “in light of

common experience.” Bishop,

.

¶ 20 Ordinarily, the State must commence prosecution for aggravated criminal sexual assault

“within 3 years after the commission of the offense.” 720 ILCS 5/3-5(b) (West 2016). Section 3-

6 of the Code, however, provides that the State may commence prosecution for aggravated

criminal sexual assault within 10 years of the commission of the offense “if the victim reported

the offense to law enforcement authorities within 3 years after the commission of the offense.”

§ 3-6(i). It is well established that the precise allegation and proof of time or date are not necessary;

instead, the charging document must allege that “the crime was committed at some time prior to

the return of the indictment *** and within the period fixed by the statute of limitations.” People

v. Strait,

(1978). Where, as here, however, the State proceeds on a theory

that the accused had engaged in a continuous course of aggravated criminal sexual assault, the

offense is not complete “until the last act was accomplished.” People v. McDade,

(2004).

¶ 21 In this case, the State charged defendant by indictment with aggravated criminal sexual

assault based upon the infliction of bodily harm, “to wit: pregnancy.” In People v. Wilson,

(1962), our supreme court observed that, “Where an alleged fact is preceded by ‘to-wit,’ it

is said to be laid under a videlicet.”

at 601 (citing People v. Rivas,

(1955)). The

court further explained that the use of a videlicet in “ ‘every species of pleading’ ” allows the

pleader to “ ‘fix with certainty that, which before, was general, and which, without such

8 No. 1-20-0719

explanation, might with equal propriety have been applied to different objects.’ ”

(quoting

People v. Shaver,

(1937)).

¶ 22 Rivas provides guidance on the issue presented here. There, the State indicted the defendant

for “the sale on June 28, 1952, of ‘a large amount, to-wit: six capsulefuls of a certain narcotic

drug.’ ” Rivas,

. The court noted that based upon the record, the defendant was

convicted of the sale of six capsulefuls of heroin on June 28, but the only evidence sufficient to

sustain a conviction related to two sales of heroin on June 27, neither of which involved the sale

of six capsules or any other specific number of capsules.

. Accordingly, the court held

that the State failed to prove the offense as charged in the indictment and reversed the defendant’s

conviction.

.

¶ 23 Here, although the State alleged a continuing course of conduct in the preface of the

indictment, the charge itself alleges “an act” of sexual penetration resulting in a specific type of

bodily harm, pregnancy. This “last act” was “accomplished” in October 2012, when K.H. was

born. See McDade,

. To stay within the extended statute of limitations, the

offense had to be reported to law enforcement within three years of that date, or October 2015.

Since the victim did not report this offense until August 2017 and the State failed to allege and

prove bodily harm that took place within the three-year statute of limitations, the State was time-

barred from prosecuting this particular offense. On these facts, defendant has overcome the strong

presumption that trial counsel’s failure to seek discharge of count IV was the product of a sound

trial strategy and not incompetence. See Crawford,

. Therefore,

trial counsel rendered objectively unreasonable assistance, and defendant’s claim satisfies the first

prong of Strickland.

9 No. 1-20-0719

¶ 24 In addition, defendant has met the prejudice prong. Defendant suffered prejudice from trial

counsel’s failure to move to discharge this count when he was convicted and subsequently

sentenced to a consecutive 20-year prison term. Although the victim in this case testified that

defendant raped her at least “one or two times” after the birth of her son, the State indicted

defendant for “an act” of aggravated criminal sexual assault predicated upon bodily harm, “to wit:

pregnancy.” Therefore, even if those one or two additional acts took place within three years of

the victim’s outcry to law enforcement, that would not preserve a valid conviction on count IV,

which specifically alleged pregnancy and nothing else as the bodily harm.

¶ 25 Notably, there is no evidence that, following the birth of K.H. in October 2012, the victim

again became pregnant by defendant within the three years prior to her outcry on August 29, 2017.

In addition, the State elicited no additional evidence regarding the one or two additional attacks,

which stands in stark contrast to the detailed testimony the State elicited for the time period

preceding the victim’s pregnancy. Faced with a pretrial motion to dismiss the indictment on count

IV as time-barred, it is highly unlikely the State would have been able to amend or otherwise revive

this charge. As stated above, to meet the prejudice prong of Strickland, defendant must show a

reasonable probability, i.e., “ ‘a probability sufficient to undermine confidence in the outcome,’ ”

that, but for this error, the result of his trial would have been different.

(quoting Strickland,

). Under the facts presented, defendant has shown prejudice as required by Strickland.

¶ 26 Finally, we are not persuaded by the State’s reliance upon People v. Stone,

(2007), McDade,

, People v. Griffith,

(1993),

and Strait,

. The first three cases are factually distinct because they all allege multiple

acts occurring during the time frames alleged in the charging instruments. See Stone,

(describing various “incidents” of abuse); McDade,

(noting the

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defendant abused the victim “numerous times”); Griffith,

(uninterrupted child abduction from 1981 until 1989). Here, although the State alleged the

aggravated criminal sexual assault of the victim took place over a lengthy span of time, the bodily

harm, i.e., pregnancy, was a single instance that took place in 2012, well before the filing of the

indictment in 2017 and well beyond the statute of limitations. In Strait, the supreme court affirmed

the appellate court’s reversal of the defendant’s conviction for indecent liberties with a child.

Strait,

. There, as here, the State alleged a single instance of abuse taking

place on March 3, 1972, but the State did not file the charging instrument until May 13, 1976,

which was beyond the applicable three-year statute of limitations.

. Therefore, Stone,

McDade, Griffith, and Strait do not support the State’s claim.

¶ 27 At sentencing, the circuit court found that count VIII, which alleged criminal sexual assault

based upon forcible penis to vagina contact, was a lesser-included offense of count IV, which

alleged aggravated criminal sexual assault based upon the same forcible act but adding in the

bodily harm of pregnancy. Consequently, the court then merged count VIII into count IV and

imposed a consecutive 20-year sentence on the conviction on count IV. Defendant does not contest

the sufficiency of the evidence supporting these convictions in his brief, and thus the conviction

on the lesser included offense, count VIII, should stand, based upon the victim’s testimony that

the defendant assaulted her during the time frame in question but within the applicable statute of

limitations. See supra ¶ 24.

¶ 28 The circuit court did not impose a sentence upon count VIII before the merger, resulting in

a nonfinal conviction on that particular count. Since we are compelled to reverse defendant’s

conviction on count IV due to the State’s carelessly drafted indictment, our jurisdiction is limited

to remanding this cause for the court to impose a sentence upon count VIII. See People v.

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Relerford,

, ¶ 75 (holding that the appellate court’s jurisdiction over nonfinal

convictions is “limited to ordering a remand for imposition of sentences on the lesser

convictions”). Defendant’s remaining aggregate sentence of 56 years’ imprisonment is unaffected

by this disposition.

¶ 29 CONCLUSION

¶ 30 We reverse defendant’s conviction for aggravated criminal sexual assault (count IV), enter

a conviction on criminal sexual assault (count VIII), and remand for sentencing on the single,

lesser-included offense, count VIII.

¶ 31 Reversed and remanded with directions.

12 No. 1-20-0719

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 17-CR-17697; the Hon. Charles P. Burns, Judge, presiding.

Attorneys James E. Chadd, Douglas R. Hoff, and Jennifer L. Bontrager, of for State Appellate Defender’s Office, of Chicago, for appellant. Appellant:

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique for Abraham, Tyler J. Cox, and Christine Danielson, Assistant State’s Appellee: Attorneys, of counsel), for the People.

13