No. 1-21-1175

Filed July 18, 2024

Fourth 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. 15 CR 9154 ) SIDNEY BUTLER, ) Honorable ) Alfredo Maldonado, Defendant-Appellant. ) Judge, presiding.

JUSTICE MARTIN delivered the judgment of the court. Presiding Justice Rochford and Justice Ocasio concurred in the judgment.

ORDER

¶1 Held: (1) Child victim’s out-of-court statements in recorded interview were admissible when child victim testified at trial and was available for cross examination. (2) Failure to request redactions did not amount to ineffective assistance of counsel when defendant expressly consented to have the jury view the full interview. (3) Trial court was not required to give instruction on defendant’s pretrial statements sua sponte. (4) Prosecutor’s remarks in closing arguments did not deprive defendant of a fair trial.

¶2 Sidney Butler was charged by indictment with two counts of predatory criminal sexual

assault, two counts of aggravated criminal sexual assault, and three counts of aggravated criminal

sexual abuse. Each charge alleged that the crimes were perpetrated against Butler’s younger sister, No. 1-21-1175

K.P., when she was under the age of 13. A jury found Butler guilty on all seven counts and he was

sentenced to an aggregate term of 21 years’ imprisonment. Butler appeals, claiming that (1) K.P.’s

out-of-court interview was improperly admitted into evidence when her trial testimony was not

accusatory, (2) trial counsel was ineffective for failing to request that certain portions of the video

interview not be published to the jury, (3) the trial court should have instructed the jury on how to

consider evidence of Butler’s pretrial statements, and (4) the prosecutor made improper remarks

in closing argument, depriving him of a fair trial. For the reasons that follow, we affirm. 1

¶3 I. BACKGROUND

¶4 A. Pre-trial Matters

¶5 Before trial, the State requested a hearing, pursuant to section 115-10 of the Code of

Criminal Procedure of 1963 (725 ILCS 5/115-10(b)(1) (West 2016)), on the admissibility of a

video recorded victim sensitive interview (VSI). At the hearing, forensic interviewer Ali Alstott

testified that she interviewed K.P. one-on-one at the Chicago Children’s Advocacy Center (CAC)

on November 10, 2014. After reciting her credentials, Alstott explained that she followed a

protocol for the interview that uses open-ended, non-suggestive questioning. Alstott did not review

any police reports or other information regarding K.P.’s case before the interview.

¶6 A recording of the interview was played at the hearing. K.P. stated that she was age nine

and she lived with her mother, sister, and brother. Her father, Roland, stays at their house. K.P. said

her dad is “mean” and “always hits me.” K.P. went on to discuss the latest occasion when her dad

hit her. She explained that he was angry because her little sister told him K.P. had “touched on

[her] little sisters.” When confronted by him, K.P. told her dad that her brothers and cousin had

been “touching on” her. Alstott asked K.P. who had been “touching on” her. K.P. identified her

In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this 1

appeal has been resolved without oral argument upon the entry of a separate written order. -2- No. 1-21-1175

cousin, Matthew, brothers, Kevon and Sidney, and her mom’s “old boyfriend,” Tyree. K.P.

explained that she had not told anyone before because her brothers told her to “be quiet about it.”

¶7 K.P. stated that Sidney began “doing stuff” to her when she was four years old on occasions

when her parents were not home. When asked to specify, K.P. said he “pulled his private part out

of his clothes,” made her “suck his private part,” pulled her “panties down,” and put his “private

part” in her “butt.” K.P. stated that she and Sidney were both standing when she sucked on his

private part. K.P. then said she was “like this” when Sidney put his private part in her butt,

demonstrating by bending her torso forward. She also demonstrated Sidney’s action by thrusting

her pelvis. She explained that Sidney put his “private part” in the “line” but not the “hole,” and it

hurt. Sidney made K.P. “pinky promise” not to tell anyone. K.P. said Sidney did these things to her

“more than five times” and as recently as 2013, before he moved out of her home. She went on to

describe an incident when she was age five. Sidney tried to make her “suck his private part and

[she] didn’t want to.” Sidney placed his right hand behind her head and pushed her head back and

forth. K.P.’s sister pulled her away. K.P. ran to a bathroom and feigned sickness to deter Sidney

from entering. K.P. described in detail other instances when her cousin and other brother did similar

things to her.

¶8 Later, K.P. relayed that her father is violent toward others in her home. Specifically, he has

hit and thrown items at her mom, “slammed” her brother into a wall, and hit her little sisters,

turning their skin red. On the most recent occasion, K.P.’s mom tried to intervene when Roland

was beating K.P., but he pushed her mom and threw her mom into a wall.

¶9 At the conclusion of the interview, Alstott asked K.P. if she knew the difference between

the truth and a lie. K.P. replied that the truth is when “you tell what really happened” and a lie is

when “you don’t tell what really happened, you tell a different story.” K.P. confirmed that

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everything she had talked about was the truth and no one had told her what to say or not say. K.P.

also confirmed that no one had spoken with her about being interviewed at the CAC beforehand.

She was only told that she was “going to walk to another building.”

¶ 10 Butler submitted a handwritten statement from K.P.’s father, Roland, which he had given

to police on December 30, 2014. In the statement, Roland explains that K.P. is his daughter with

K.P.’s mother, T.P., and he has three other children with a different mother, including a daughter,

R.P. Roland had been living with T.P. and her four children, which included K.P., another daughter,

and T.P.’s two sons, Kevon and Sidney. On November 5, 2014, Roland received a call from R.P.’s

mother, informing him that R.P. said, “smell my breath it smells like [K.P.]’s tutu.” Roland went

to T.P.’s home and confronted K.P. about “what she had been doing to his little kids.” T.P. screamed

and smacked K.P. when she stood silent. K.P. then admitted she had been “making her sisters eat

her stuff” and said she “deserved to die.” Roland told T.P. he was going to give K.P. a “whooping”

and began whipping her with his belt. T.P. began whipping K.P. with an orange extension cord.

Throughout the “whooping,” K.P. turned, twisted, and screamed, “I deserve to die.” The next day,

K.P. was “welted up pretty good.” She was kept home from school as her parents wanted to conceal

her welts.

¶ 11 The State argued that the VSI exhibited sufficient safeguards of reliability to be admissible

under section 115-10. The State noted that K.P. gave detailed descriptions of her abusers’ genitals

and of sexual conduct beyond the knowledge of a normal nine-year-old. In addition, she gave

specific and unique details of different incidents involving different abusers. Butler’s counsel

argued that K.P.’s statements were coerced by the “vicious beating” she endured a few days before

the VSI, and it was not sufficiently reliable to justify its admission.

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¶ 12 The court found that the VSI provided sufficient safeguards of reliability and would be

admissible at trial if K.P. testifies. The court observed that K.P. had not been forced to “give up”

or accuse Butler. Rather, K.P.’s outcry was “a tangent out of the original family incident.”

¶ 13 The State later informed the court that it intended to introduce the entirety of K.P.’s VSI at

trial, which included discussion of collateral matters, such as K.P.’s admission to sexual conduct

with her younger siblings. Defense counsel indicated that Butler wanted the VSI played in full.

Butler confirmed his agreement when asked directly by the court.

¶ 14 Additionally, the State indicated that it planned to introduce evidence of Butler’s statements

to detectives admitting that he was K.P.’s brother and had babysat her. Defense counsel objected

based on the rule of completeness. He argued that the statements should not be admitted unless

Butler’s other statements in the same interview denying he assaulted or abused K.P. were also

admitted. The court overruled the objection, reasoning that the rule of completeness pertains to

distinct topics, not an entire interview.

¶ 15 B. Trial

¶ 16 K.P. was the first witness called. She testified that she was 13 years old and in the seventh

grade. 2 The prosecutor began asking K.P. about her family. K.P. nodded her head in response to a

few questions and then became unresponsive. The prosecutor asked K.P. whether she understood

the questions or was refusing to answer. K.P. gave no response. The jury was excused from the

courtroom. The parties agreed that K.P. was refusing to answer questions. The prosecutor

explained, “I didn’t really know what to anticipate in this case. I haven’t had the opportunity to

speak with her. Her mother would not let me speak with her.” The parties agreed to recall K.P. after

another witness testified.

2 The trial took place in March 2019. -5- No. 1-21-1175

¶ 17 Chicago Police Detective Ian Barclay testified that he met K.P.’s grandmother on

November 10, 2014, when she brought K.P. to the CAC. Detective Barclay learned that K.P. was

born in 2005 and was nine years old at that time. Ali Alstott, a forensic interviewer, met with K.P.

in a “pod,” which consists of an interview room equipped with recording devices and an

observation room. Persons in the observation room can see the interview room through one-way

glass, but not vice-versa. Detective Barclay identified a DVD as a recording of K.P.’s interview.

Detective Barclay interviewed Butler in May 2015. In the interview, Butler admitted that K.P. was

his sister and that he used to babysit her.

¶ 18 The State recalled K.P. She testified that she lived with her mom and has a sister and two

brothers, including Butler. When she was age nine, they lived at 932 Latrobe Avenue in Chicago.

K.P. was initially unresponsive when asked whether Butler babysat her before answering, “I don’t

know.” The prosecutor began asking K.P. questions regarding whether Butler had done anything

to her. K.P. either nodded her head or gave no response.

¶ 19 The court again excused the jury. The State informed the court that K.P.’s mother was

standing and waving while K.P. was on the stand and requested that she be barred from the

courtroom. The court stated that it had not observed K.P.’s mother due to a screen obstructing its

view of the gallery. The court summoned K.P.’s mother to come forward and admonished her not

to make signals to witnesses. The court admonished K.P. that she had to give verbal responses.

¶ 20 K.P.’s testimony resumed before the jury. She lived at 932 Latrobe with her mother,

siblings, and Roland Pierce in 2014. K.P. identified Butler in court as her brother. When asked

whether Butler did anything to her, K.P. answered, “No, I don’t remember.” She identified herself

at age nine in a screenshot from the VSI and agreed she was interviewed by a woman in November

2014. K.P. answered that she did not remember what she talked about, but she was interviewed

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due to “household issues” she was having with Roland. Roland hurt her and she went to a hospital

before the interview. In the interview, K.P. talked about “what happened with Roland Pierce.” She

agreed that she also mentioned Butler as a person who had “done something” to her. K.P. stated

that she did not remember Butler doing anything to her when they lived on Latrobe and only

remembers “bringing up his name” in the interview. The prosecutor read several questions and

answers from a transcript of the VSI in which K.P. described sex acts Butler performed with her.

K.P. answered that she did not remember being asked the questions or giving the answers.

¶ 21 On cross examination, K.P. testified that her mother picked her up from school one day in

November 2014. Once home, Roland accused K.P. of “doing something with [her] little cousins.”

He whipped her with his belt and an orange extension cord many times. He also struck her with

Timberland boots, a video game, and spit on her. Roland made K.P. spend the night in the

basement, where she slept on the floor without a blanket. K.P. had welts and other injuries to her

arms and legs. The next day, Roland gave K.P. a long sleeve shirt to wear to cover the marks on

her arms. K.P. spent a second night in the basement. The next day, K.P.’s cousin, Asia, took her to

Rush Hospital in Oak Park. While there, her injuries were photographed. K.P. identified 13 photos

taken at that time depicting her injuries. The CAC interview was two days later. K.P. was still in

pain from the beating at the time of the interview.

¶ 22 The State moved to publish K.P.’s VSI interview by playing it for the jury. The defense

objected, arguing that the State had not established a sufficient foundation and that K.P. had not

“testified adequately to allow the video to be played.” The court overruled the objection and

allowed the State to publish the video.

¶ 23 Alison Alstott testified that she is a licensed clinical social worker employed at the CAC.

On November 10, 2014, she was assigned to interview K.P., who was nine years old at the time.

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On cross examination, Alstott testified she was aware before the interview that K.P. was injured

and she noticed wounds during the interview.

¶ 24 The State submitted copies of K.P.’s and Butler’s birth certificates, which indicated Butler

was born in 1995 and K.P. in 2005.

¶ 25 Butler called his mother, T.P. She testified that on a weekday afternoon in November 2014,

she, Kevon, K.P., her other daughter, and Roland met in the kitchen of their home. Roland “went

crazy,” striking “everyone” with his belt and extension cords. K.P. received “lash-type injuries” to

her arms, legs, and torso. Police officers and personnel from the Department of Children and

Family Services (DCFS) arrived. T.P.’s cousin, Asia, came and picked up her daughters. Asia took

K.P. to the hospital later that night.

¶ 26 On cross examination, T.P. explained that Roland had called her before the family meeting

and stated that “there was something sexual going on.” This revelation is what caused Roland to

go “crazy” and become violent. T.P. denied that K.P. ever made an outcry to her about being

abused. T.P. further denied that K.P. was made to sleep in the basement and maintained that Asia

took K.P. from the home the same day as the beating.

¶ 27 On redirect, T.P. confirmed that Roland asked K.P. to admit to “doing something sexually

wrong” and wanted to know how she knew “how to do those things.”

¶ 28 In closing arguments, defense counsel contended that K.P.’s VSI was “the product of

torture” inflicted by Roland. After being confronted about abusing Roland’s other daughter,

suffering beatings, and forced to sleep in the cold basement for days, counsel submitted, K.P. was

“in her mind *** told to confess on some people.” That is, Roland “believed that *** someone had

shown [K.P.] how” to abuse his other daughter and he wanted to know who. As a result of the

“torture,” K.P. “came up with names,” including Butler’s.

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¶ 29 The jury found Butler guilty on all seven counts. Upon Butler’s posttrial motion, filed by

new counsel, the court vacated one count of predatory criminal sexual assault and one count of

aggravated criminal sexual assault, finding that the evidence was insufficient to prove contact

between Butler’s penis and K.P.’s anus. The court rejected Butler’s other claims that the VSI was

improperly admitted, trial counsel was ineffective for not requesting a limiting instruction on

Butler’s pretrial statements, and certain remarks from the prosecutors in opening and closing

statements deprived him of a fair trial.

¶ 30 The court merged three counts of aggravated criminal sexual abuse and sentenced Butler

to consecutive terms of nine years for predatory criminal sexual abuse, nine years for aggravated

criminal sexual assault, and three years for aggravated criminal sexual abuse for a total prison term

of 21 years. Butler filed a timely notice of appeal.

¶ 31 II. ANALYSIS

¶ 32 A. Admissibility of Out-of-Court Statements

¶ 33 Butler first argues that K.P.’s VSI was erroneously admitted into evidence. He claims both

that the interview did not meet the conditions for admission under section 115-10 and that its

admission violated his constitutional right to confront witnesses. He contends that K.P. did not

“testify” for purposes of both section 115-10 and the sixth amendment’s confrontation clause

because she gave no testimony accusing Butler of anything. Instead, she said she did not remember

him doing anything to her, only recalled bringing his name up during her interview, and denied

remembering any of the questions and answers of the interview.

¶ 34 We review the trial court’s ruling on the admissibility of a statement under section 115-10

for an abuse of discretion, but whether a defendant was deprived of their constitutional right to

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confront witnesses is a question of law that we review de novo. People v. Dabney,

, ¶ 17.

¶ 35 For a minor victim’s out-of-court statement to be admissible at trial, the statement must

comply with both the requirements of section 115-10 and the confrontation clause. People v. Kitch,

(2011). “The confrontation clause guarantees a criminal defendant the right

to confront the witnesses against him or her.” Dabney,

; U.S. Const.,

amend. VI; Ill. Const. 1970, art. I, § 8. Section 115-10 provides that in a prosecution for a sexual

act perpetrated against a child under the age of 13, certain out-of-court statements made by the

child victim may be admitted as substantive evidence at trial as an exception to the hearsay rule.

Such statements are admissible so long as (1) the trial court conducts a hearing outside the presence

of the jury to determine the reliability of the statements, and (2) the victim testifies at trial or is

unavailable but evidence corroborating the statement is presented. People v. Riggs,

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

¶ 36 Butler argues that K.P.’s trial testimony failed to satisfy the statute’s condition for

admissibility. Specifically, he contends that K.P.’s testimony lacked any accusation against him,

rendering her unavailable for cross examination on the allegations underlying the charges he faced.

For this proposition, Butler relies on the Second District’s decision in People v. Learn,

(2009).

¶ 37 In Learn, a five-year-old victim only answered a few basic questions on direct examination

about her family.

. It took several questions for her to acknowledge that her uncle, the

defendant, even existed.

She said she did not like him but could not say why.

The victim

also said she did not remember the occasion when she told her father that the defendant had abused

her.

She acknowledged going to a police station but said she did not answer any questions.

- 10 - No. 1-21-1175

The victim then began crying on the stand.

After a break, defense counsel only asked the victim

five questions about the defendant.

. She answered “I don’t know” to most questions and

“no” to whether she had ever told her dad anything about the defendant.

¶ 38 The trial court found that the victim had testified and then allowed the victim’s father and

two police officers to each testify to the victim’s out-of-court statements describing the defendant

sexually abusing her.

. The appellate court found that admission of their testimony as

substantive evidence was error.

The court reasoned that the victim did not testify for purposes

of section 115-10 or the confrontation clause since she “did not testify at all about the charge in

this case and barely acknowledged the people and places about which she was questioned. She did

not ‘bear testimony’ against defendant. She neither made accusations nor gave relevant and

material testimony.”

. The court stated “[i]f the child is the only witness (other than

hearsay reporters) who can accuse the defendant of actions constituting the charged offense, the

child must testify and accuse if she is to be considered to have testified at the proceeding.”

(Emphasis in original.)

Thus, the Learn court interpreted section 115-10 and the confrontation

clause to require that a witness give accusatory, incriminating testimony against the defendant to

admit evidence of their out-of-court statements.

¶ 39 Here, Butler similarly argues that K.P.’s testimony was not accusatory and therefore,

following Learn, the trial court erroneously admitted her out-of-court statements. We disagree and

find that K.P. testified at trial for purposes of section 115-10. We agree with the Fifth District’s

observation that Learn does not reflect the current state of Illinois law on this issue. People v.

Graves,

. Learn is alone in holding that a victim must testify and

accuse the defendant of the charged conduct to satisfy the testimony requirement of section 115-10.

Since Learn was decided 15 years ago, no court has cited it approvingly, the decision has received

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extensive negative treatment, and the Second District has distanced itself from it. See id. ¶ 39

(collecting cases). We likewise decline to follow Learn.

¶ 40 Instead, we join the majority of Illinois courts and find that the testimony requirement of

section 115-10 requires no more than the witness’s availability for cross examination—the same

requirement to satisfy the confrontation clause. Id. ¶ 41. So long as a witness appears for cross

examination, the confrontation clause does not require that a witness testify to the substance of

their out-of-court statements for those statements to be admissible. Id. ¶ 43 (citing People v. Smith,

(quoting People v. Garcia-Cordoba,

,

¶ 66)). A witness will be found to have been available for cross examination if the witness was

present in court and answered all the questions asked of them by defense counsel. Dabney,

.

¶ 41 Here, the record demonstrates that K.P. appeared for cross examination. During direct

examination, K.P. was initially reluctant or unwilling to answer questions. The majority of her

responses were head nods, or she gave no response at all. After breaks and being admonished by

the court, K.P. began giving verbal responses. Yet, for most of the salient questions, she responded

that she did not remember. In contrast, no reluctance was apparent during her cross examination.

She gave meaningful responses to all of defense counsel’s questions, including many that pertained

to being physically abused, albeit by Roland, not Butler. Indeed, K.P.’s testimony on cross

examination aligned with Butler’s theory of the case. By eliciting K.P.’s testimony about being

beaten and mistreated by Roland, counsel supported his contention that she was untruthful during

the VSI and thereby challenged K.P.’s out-of-court statements. It is of no moment that defense

counsel did not inquire directly about K.P.’s VSI statements accusing Butler of abuse. The

opportunity for cross examination satisfies the appearance requirement, irrespective of how the

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defendant chooses to cross examine the witness. Graves,

. We also

observe that nothing prevented counsel from inquiring about K.P.’s VSI statements.

(observing

defense counsel could have questioned child victim about out-of-court allegations even though

victim did not testify to the charged conduct).

¶ 42 For these reasons, we conclude that K.P.’s testimony satisfied section 115-10 to make her

out-of-court interview admissible. Thus, the trial court did not abuse its discretion by admitting

the VSI. In addition, Butler’s confrontation rights were not violated since K.P. was available for

cross examination. Accordingly, admission of the VSI complied both with section 115-10 and the

confrontation clause. Having found that the VSI was admissible under section 115-10, we need

not address the parties’ contentions regarding whether the VSI was admissible under section

115-10.1 (730 ILCS 5/115-10.1 (West 2018)) as a prior inconsistent statement. 3

¶ 43 B. Ineffective Assistance

¶ 44 Butler next argues that his trial counsel was ineffective for failing to request that the jury

not view portions of K.P.’s interview in which she discussed bad acts committed by other people.

Specifically, he contends portions related to Roland beating K.P., sexual abuse by her cousin and

other brother, and K.P.’s admissions to abusing her sisters should have been excluded. Statements

on those topics were outside the scope of section 115-10, he contends, and enabled the jury to

convict him based on suffering inflicted on K.P. by others.

¶ 45 The State responds that Butler cannot complain about the interview being played in its

entirety since he expressly consented to this strategy. We agree. Illinois courts have repeatedly held

“[w]here a defendant knowingly and intelligently consents to defense counsel’s strategy, he

3 See People v. Vannote,

(finding a child victim’s out-of-court statements were admissible as prior inconsistent statements when victim claimed not to remember anything at trial). - 13 - No. 1-21-1175

normally cannot claim ineffective assistance of counsel for the actions of defense counsel in

furtherance of that strategy.” (Internal quotation marks omitted.) People v. Bell,

. Here, defense counsel stated expressly that it was Butler’s wish that the jury see

the entire interview. Butler confirmed so when asked by the court directly. On appeal, he offers no

basis to find that he did not knowingly or intelligently consent to this strategy.

¶ 46 In addition, when reviewing a claim of ineffective assistance, courts are to indulge a strong

presumption that the challenged action or inaction was the product of sound trial strategy. People

v. Wilkerson,

. The record supports that having the jury view the

interview in full was consistent with the defense’s strategy. Defense counsel argued that K.P.

falsely accused Butler in her interview because she had been badly beaten by her father days

before, when he accused her of abusing his other daughter. To support that theory, defense counsel

elicited testimony from both K.P. and her mother on these matters. The portions of K.P.’s interview

giving a consistent account corroborated their testimonies. Thus, having the jury view the

interview in full was in accord with the defense’s strategy. Ultimately, the jury was unconvinced,

but that alone does not require us to find the strategy unsound. People v. Massey,

.

¶ 47 Further, Butler cannot show a reasonable probability of a different outcome had the jury

viewed a redacted interview. See People v. Domagala,

(defendant must show

he was prejudiced by counsel’s performance—a reasonably probability that the result of the

proceeding would have been different). Butler’s claim of prejudice is highly speculative. His claim

is also undermined by the fact that much of the same information was introduced at trial through

K.P.’s and T.P.’s testimonies.

¶ 48 C. Jury Instruction

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¶ 49 Next, Butler argues that the trial court should have instructed the jury regarding evidence

of his statements. Detective Barclay testified that Butler admitted during questioning that K.P. was

his sister and he had babysat her. The instruction Butler’s believes the court should have given

reads as follows:

“You have before you evidence that the defendant made statements relating to the offenses

charged in the indictment. It is for you to determine whether the defendant made the

statements, and, if so, what weight should be given to the statements. In determining the

weight to be given to a statement, you should consider all of the circumstances under which

it was made.” Illinois Pattern Jury Instructions, Criminal, No. 3.06-3.07 (approved Oct. 17,

2014).

¶ 50 Butler acknowledges that he forfeited this issue since he failed to request that the

instruction be given or otherwise object to the adequacy of the jury instructions before the trial

court. He requests that we review the claim under plain error.

¶ 51 “Under the plain error doctrine, a reviewing court may address a forfeited claim in two

circumstances: ‘(1) 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 and (2) where a clear or obvious error occurred

and that 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. Hood,

(quoting People v Belknap,

).

We must first determine whether error occurred at all.

“[W]ithout error, there can be no plain

error.”

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¶ 52 A trial court generally has no obligation to instruct a jury on its own motion. People v.

Koen,

. Rather, “the only situations where a fair trial requires the

court to sua sponte offer an instruction include seeing that the jury is instructed on the elements of

the crime charged, on the presumption of innocence and on the question of burden of proof.”

(Internal quotation marks omitted.) People v. Wright,

, ¶ 88. When an instruction

involves none of those issues, a court’s failure to sua sponte tender it is not error. People v.

Franklin,

(1990); People v. Turner,

(1989). The

instruction Butler argues the court should have given does not bear on the essential issues of “the

elements of the crime charged, on the presumption of innocence and on the question of burden of

proof.” Therefore, there was no error and Butler cannot demonstrate plain error.

¶ 53 Alternatively, Butler claims that trial counsel’s failure to request the instruction amounts to

ineffective assistance. To prevail on a claim of ineffective assistance of counsel, a defendant must

demonstrate both that (1) counsel’s performance was deficient and (2) the deficient performance

prejudiced the defendant. Domagala,

. If the defendant suffered no prejudice,

we need not consider whether counsel’s performance was deficient. People v. Griffin,

(1997). Prejudice is shown when there is a reasonable probability, but for counsel’s deficient

performance, the result of the proceeding would have been different. Domagala,

.

¶ 54 Here, we cannot conclude that Butler was prejudiced by the failure to request the jury

instruction regarding his pretrial statements. The only pretrial statements attributed to Butler were

admissions that K.P. was his sister and that he babysat her. These admissions were not

incriminating, and it is unreasonable to believe that instructing the jury to determine whether he

made them and under what circumstances would have affected their deliberation. To be sure, the

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admissions were basic, undisputed background information. That Butler and K.P. were siblings

was uncontestable. Both K.P. and T.P. testified that Butler and K.P. were siblings who resided in

the same home. Although the State referenced Butler’s admission that he babysat K.P., this was far

from incriminating. From common experience, jurors would expect that older siblings would be

placed in charge of younger siblings on occasion.

¶ 55 Further, IPI Criminal 3.06-07 was inapplicable. By its terms, the instruction is relevant

when there is a question of fact as to whether a defendant made a statement or whether such a

statement is true. Although evidence of Butler’s statements was introduced and the State

mentioned it in argument, whether he made the statements, and their truth or falsity were not at

issue in the case. Under these circumstances, we fail to see how the instruction could have made a

difference. Accordingly, Butler cannot show that he was prejudiced, and his ineffective assistance

claim necessarily fails.

¶ 56 D. Closing Arguments

¶ 57 Lastly, Butler argues that he was deprived of a fair trial by prosecutorial misconduct in

closing arguments. He claims various comments were improper and each comment prejudiced

him, or prejudice resulted from their cumulative effect. Specifically, Bulter contends: (1) the State

improperly bolstered the credibility of K.P.’s VSI statements by vouching for Alstott’s ability as

an interviewer, (2) the prosecutor misstated the law by telling the jury that K.P.’s VSI was “just as

if that 9-year-old girl was up on the witness stand, and Ali Alstott was the lawyer asking her

questions,” (3) the prosecutor improperly blamed Bulter for the beating she suffered from her

father, (4) the prosecutor improperly referenced abuse of K.P. committed by others so as to suggest

Butler’s guilt by association, and (5) certain comments were unduly inflammatory, including

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calling Butler “Mr. Despicable” and saying that he “taught a little girl how to suck his private part

and how to bend over furniture and take it in the rear end.”

¶ 58 Butler included the claimed improper remarks in his motion for new trial. However, he

objected to none of them at trial. To preserve an issue for appeal, a defendant must both make a

contemporaneous objection at trial and raise the specific issue in a posttrial motion. People v.

Anaya,

. Butler’s failure to object results in forfeiture of this claim.

In his reply brief, however, he contends the prosecutor’s comments amount to plain error under

the first prong. See supra ¶ 49. A defendant’s argument for plain error in a reply brief “is sufficient

to allow us to review the issue for plain error.” People v. Ramsey,

(2010).

Thus, we consider whether a clear or obvious error occurred.

¶ 59 To obtain relief on an unpreserved error under the plain-error doctrine, the same error must

entitle the defendant to relief if it had been preserved. People v. Williams,

, ¶ 49.

For a prosecutorial comment in closing argument to be reversible error, the comment must be both

improper and substantially prejudicial. Id. Prosecutors are afforded wide latitude in closing

argument. People v. Wheeler,

(2007). The prosecutor “may comment on the

evidence and any reasonable inferences that arise from it, even if those inferences reflect

negatively on the defendant.” Williams,

, ¶ 44. Prosecutors may also comment on

matters implicated by defense counsel. Id. We consider the comments in closing argument in

context of the entire closing argument of both the State and defendant. People v. Ceja,

(2003).

¶ 60 1. Vouching for K.P.’s credibility

¶ 61 We first consider the prosecutor’s remarks regarding Alstott. Butler points to these

comments:

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“You didn’t hear one leading question out of Ali. Who, what, where, when, why, how. She

didn’t say, ‘isn’t [it] true that this happened, or this happened;’ correct? No. There’s an art

to it. She’s trained. Because you’re trained to get the truth by asking those questions.”

Butler argues that the prosecutor improperly vouched for Alstott as a good interviewer and, by

extension, vouched for K.P.’s credibility.

¶ 62 We do not find the challenged remarks improper. Alstott testified to her qualifications,

including her education, training, and experience conducting interviews of children regarding

abuse. She also described using questioning techniques that avoid suggesting answers, including

using open-ended questions, and her use of those techniques was evident from the video, which

was played in its entirety. Alstott also testified that she had not reviewed any reports related to K.P.

or her family before interviewing her. Thus, the prosecutor’s suggestion that Alstott was a trained

interviewer, and her training is designed to yield truthful statements were reasonable inferences

based on the evidence.

¶ 63 Further, the prosecutor did not vouch for Alstott ability or K.P.’s credibility. A prosecutor

improperly vouches for a witness’s credibility when they either (1) “convey the impression that

evidence not presented to the jury, but known to the prosecutor, supports the charges against the

defendant and can thus jeopardize the defendant’s right to be tried solely on the basis of the

evidence presented to the jury;” or (2) “the prosecutor’s opinion carries with it the imprimatur of

the Government and may induce the jury to trust the Government’s judgment rather than its own

view of the evidence.” (Internal quotation marks omitted.) People v. Williams,

. Here, the prosecutor neither conveyed an impression that they knew something about

Alstott’s interviewing ability that was not presented in evidence nor suggested that the jury should

find K.P.’s interview statements credible based on the prosecutor’s opinion of Alstott. In addition,

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the prosecutor made no statement in the form of an opinion, which is generally required for us to

consider the statement an improper opinion. See People v. Pope,

(1996)

(observing that improper expressions of opinion generally include explicit language such as “I

believe” or “I think”).

¶ 64 2. “Just as if”

¶ 65 Next, Butler complains that the prosecutor misstated the law when discussing K.P.’s VSI

with the following comment: “It’s just as if that 9-year-old girl was up on the witness stand, and

Ali Alstott was the lawyer asking her questions.” Butler contends the comment erroneously

equated out-of-court testimony, where the declarant is not under oath or subject to cross

examination, with in-court testimony.

¶ 66 In context, the prosecutor was explaining that K.P.’s VSI could be considered as substantive

evidence despite K.P. not testifying consistent with it at trial. The relevant portion of argument was

as follows:

“You’re also going to get an instruction that starts out talking about the believability

of witnesses. And part of that instruction *** says: However, you may consider a witness’s

earlier inconsistent statement as evidence without this limitation ***.

What does that mean? *** that means *** when you watch that forensic interview

of [K.P.] when she was 9 years old. It’s just as if that 9-year-old girl was up on the witness

stand, and Ali Alstott was the lawyer asking her questions. You can consider that as

substantive evidence in this case. You can consider that.”

The limitation the prosecutor referred to, which was stated in the jury instructions, is that prior

inconsistent statements ordinarily may only be considered for the limited purpose of determining

how much weight to give a witness’s in-court testimony. Illinois Pattern Jury Instructions,

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Criminal, No. 3.11 (IPI 3.11) (approved Oct. 17, 2014). After these statements, the prosecutor went

on to offer reasons that the jury should believe what K.P. said in the VSI.

¶ 67 Thus, the context demonstrates that the import of the complained of comment was that the

jury could consider K.P.’s VSI statements as substantive evidence. That was a correct statement of

law. Id.; 725 ILCS 5/115-110.1 (West 2018). The statement did not equate a prior inconsistent

statement with in-court testimony in the manner Butler contends. It was not directed at the

credibility of the VSI statements, as the prosecutor addressed that question separately. In any event,

the court gave the jury proper instructions on how to evaluate the VSI, which generally cures any

prejudice resulting from improper remarks. People v. Simms,

(2000). In sum,

we find no clear or obvious error resulting from the “just as if” comment.

¶ 68 3. Blaming Butler for Roland Beating K.P.

¶ 69 We next consider Butler’s challenge to these remarks:

“What’s more ridiculous is he’s the reason she got that beating. She told you on that

forensic interview, her dad was beating on her because she was touching on her little sisters,

and her brothers were touching on her. Where did she learn that? Where do little siblings

learn things? From their parents and from their older siblings, they mimic them, they copy

them.”

Butler argues the comment blamed him for the beating K.P. received from Roland, making him

responsible for a separate crime from those charged.

¶ 70 We note that the complained of remarks were made in rebuttal. Defense counsel first

introduced the theory that Roland beat K.P. because Roland believed that someone had taught K.P.

to perform sex acts on younger siblings and Roland wanted K.P. to identify that person:

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“[K.P.] was a prisoner for what she had done; [Roland] wanted to know why she’s

doing this; he believed that if she had done this thing, someone had shown her how to do

it. And that’s why she’s doing it. ‘And tell me who told you how – [who] showed you how

to do this?’ And she came up with names, including *** Sidney Butler.”

Further, in the VSI, K.P. described being subjected to sexual acts by Butler and others before she

performed acts on her younger sisters. Thus, it was reasonable for the prosecutor to draw an

inference that K.P.’s abuse of her younger sisters resulted from the abuse she suffered from Butler.

For these reasons, we find that the remarks were both invited and a reasonable inference from the

evidence.

¶ 71 4. Guilt by Association

¶ 72 Similarly, Butler complains about this comment in rebuttal: “[K.P.] was in a perfect storm.

She was a little ship in a perfect storm, and that perfect storm was [Butler]; his brother; his cousin;

her father; her mother. That’s what she was living.” He argues that the prosecutor made him the

“scapegoat” for the abuse K.P. suffered from other family members and asked the jury to find him

guilty by association rather than for his own conduct.

¶ 73 Like the prior issue, defense counsel first commented on K.P. being abused. He also argued

T.P. had contributed to the abuse by failing to act when K.P. was kept in the basement for days

after Roland had beaten her. Defense counsel asked the jury to credit K.P.’s testimony over T.P.’s

denials and claim she had taken K.P. to the hospital the same day. Also, the comment was based

on K.P.’s VSI, which described abuse from multiple family members. Thus, we do not find the

comment improper.

¶ 74 5. Inflammatory Remarks

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¶ 75 Last, Butler claims the prosecutor made prejudicial inflammatory remarks by referring to

him as “Mr. Despicable” and stating, “Instead of teaching [K.P.] how to read and write her ABCs

or how to tie her shoes, [Butler] taught [K.P.], a little girl, how to suck his private part and how to

bend over furniture and take it in the rear end.” “[I]nflaming of the jury’s passions is not directly

barred; rather any commentary that does so must also serve a different proper purpose.” People v.

Darr,

, ¶ 71. Argument that serves no purpose but to inflame the jury is

improper. People v. Blue,

(2000). We address each comment in turn.

¶ 76 We observe that defense counsel first used the word “despicable” when stating, “If you

find that [Butler] did that beyond a reasonable doubt, by all means find him guilty because people

that abuse children are despicable.” In rebuttal, the prosecutor stated: “the Defendant, through his

attorney, just got up here and said, ‘anybody who would do that is despicable.’ Well, ladies and

gentlemen, let me introduce you to Mr. Despicable here. Because that’s what he did, and that’s

what we showed you he did.” Accordingly, the “Mr. Despicable” comment was a permissible

response.

¶ 77 The other comment, by contrast, was made near the beginning of the prosecutor’s initial

argument. Later, the prosecutor recounted portions of the VSI:

“[K.P.] indicated that [Bulter] told her to suck his private part. She also indicated

that [Bulter] tried to put his private part into her butt, and it hurt.

She demonstrates how [Butler’s] body was positioned when he tried to put it into

her butt, and she demonstrates a humping motion. She demonstrates how her body was

positioned. She turns over and sticks her backside up, and demonstrates how her body is

bending over furniture.”

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This was an accurate description of the VSI. K.P. described sex acts Butler, her older brother,

subjected her to beginning when she was age four. She used the words “suck his private part” and

physically demonstrated by, inter alia, bending forward at the waist. Thus, the earlier comment

was based on the evidence.

¶ 78 Nevertheless, we fail to see a purpose served by the “take it in the rear end” comment other

than inflaming the passions and prejudices of the jury. The comment offered no reason as to why

the evidence proved Butler had committed the charged offenses. Instead, the prosecutor’s remarks

were aimed at generating sympathy for K.P. and outrage at Butler. He emphasized her young age

and vulnerability by referencing learning to read or tie shoes and the depravity of the charged

conduct by using the crude phrase “take it in the rear end.”

¶ 79 Although we find the comment improper, we do not believe it was so substantial as to

constitute error. To be sure, the trial evidence was evocative on its own. So, the prosecutor’s

comment was not as shocking as it may seem outside of its context. The jury had already been

exposed to disturbing material, including the VSI and testimony about K.P. being beaten by

Roland. Thus, by the time of closing arguments, we do not believe the prosecutor’s comment

caused the jury to act upon inflamed passions instead of the evidence. In addition, the remark was

brief and isolated among lengthy arguments. See People v. Jackson,

(noting

that the brief and isolated nature of remarks in context is a factor in assessing the effect on the jury

verdict).

¶ 80 Having found no reversible error in the closing arguments, we find no plain error.

¶ 81 III. CONCLUSION

¶ 82 Based on the foregoing, we affirm the judgment of the circuit court.

¶ 83 Affirmed.

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