People v. Upchurch

2026 IL App (4th) 250697-U
NO. 4-25-0697
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,
v.
DUANE UPCHURCH,
Defendant-Appellant.
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Appeal from the
Circuit Court of
Ogle County
No. 19CF172
Honorable
John Benjamin Roe IV,
Judge Presiding.
PRESIDING JUSTICE STEIGMANN delivered the judgment of the court.
Justices Lannerd and Vancil concurred in the judgment.
ORDER
¶ 1 Held: The appellate court affirmed because (1) defendant’s jury waiver was knowingly
and understandingly made and (2) trial counsel did not render ineffective
assistance of counsel.
¶ 2 In August 2019, the State filed a six-count indictment charging defendant, Duane
Upchurch, with four counts of predatory criminal sexual assault of a child (counts I, II, III, and
V) (720 ILCS 5/12-14.1(a)(1) (West 2004)), and two counts of aggravated criminal sexual abuse
(counts IV and VI) (id. § 12-16(c)(1)(i)). The charges pertained to two minors, L.K. and K.L.,
who were both under the age of 13 at the time of the offenses. Counts I through IV alleged,
generally, that between September 2004 and September 2008, defendant committed acts of
sexual penetration and an act of sexual conduct against L.K., while counts V and VI alleged,
generally, that between July 2005 and July 2008, defendant committed an act of sexual
penetration and an act of sexual conduct against K.L.
FILED
October 16, 2026
Carla Bender
4th District Appellate
Court, IL
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).

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¶ 3 In July 2020, defendant waived his right to a jury trial.
¶ 4 In April 2022, the trial court conducted a bench trial, at the conclusion of which
the court found defendant guilty of two counts of predatory criminal assault of L.K., one count of
aggravated criminal sexual abuse of L.K., and one count of aggravated criminal sexual abuse of
K.L.
¶ 5 In January 2023, defendant filed a posttrial motion, which the trial court denied in
June 2024.
¶ 6 In April 2025, the trial court sentenced defendant to a total of 25 years in the
Illinois Department of Corrections.
¶ 7 Defendant appeals, arguing (1) the trial court failed to properly admonish him
prior to accepting his jury waiver and (2) defendant’s trial counsel rendered ineffective
assistance by failing to (a) present expert testimony and (b) bring to the court’s attention a
pending petition for leave to appeal (PLA) in People v. Kidd, 2022 IL 127904.
¶ 8 We disagree and affirm.
¶ 9 I. BACKGROUND
¶ 10 A. The Charges
¶ 11 In August 2019, the State filed a six-count indictment charging defendant with
four counts of predatory criminal sexual assault of a child (counts I, II, III, and V) (720 ILCS
5/12-14.1(a)(1) (West 2004)), and two counts of aggravated criminal sexual abuse (counts IV
and VI) (id. § 12-16(c)(1)(i)).
¶ 12 Counts I through IV pertained to L.K. Counts I through III alleged that defendant
committed predatory criminal assault, and count IV alleged he committed aggravated criminal
sexual abuse. Specifically, counts I, II, and III alleged that, between September 2004 and

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September 2008, when L.K. was under the age of 13, defendant “committed an act of sexual
penetration with L.K. *** in that [he]” (1) “put his penis in the mouth of L.K.” (count I), (2) “put
his finger in the vagina of L.K.” (count II), and (3) “put an object in the vagina of L.K.” (count
III). Count IV alleged that, during the same time period, defendant committed an act of sexual
conduct in that he “put the hand of L.K.’s hand on his penis for the purpose of his own sexual
arousal or gratification.”
¶ 13 Counts V and VI pertained to K.L. Count V alleged defendant committed
predatory criminal sexual assault in that, between July 2005 and July 2008, when K.L was under
the age of 13, he “committed an act of sexual penetration *** in that [he] touched the vagina of
K.L. with his finger.” Count VI alleged defendant committed aggravated criminal sexual abuse
in that, during the same time period, defendant “committed an act of sexual conduct *** in that
he put his hand on the vagina of K.L. for the purpose of his own sexual arousal or gratification.”
¶ 14 B. The Jury Waiver
¶ 15 In July 2020, defendant appeared in court with counsel and waived his right to a
jury trial. At this hearing, the following colloquy occurred:
“[DEFENDANT’S ATTORNEY]: *** At this time[, defendant] is
executing a written waiver of his right to a jury trial. He’d persist in his plea of
not guilty, ask that the matter be set for a bench trial. ***
THE COURT: Okay, thank you. Just briefly, [defendant], do you
understand what a jury trial is?
[DEFENDANT]: Yes.
THE COURT: You understand that you have that right to a jury trial?
[DEFENDANT]: Yes.

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THE COURT: In order to waive that right, that has to be in a written form.
Has that already taken place?
[DEFENDANT’S ATTORNEY]: It has been executed. May I approach,
[Y]our Honor?
THE COURT: Yes.
([Defendant’s attorney] approaches the bench.)
THE COURT: Thank you. Any threats or promises been made to you,
[defendant], to waive this right other than what’s been stated here in court?
[DEFENDANT]: No.
THE COURT: Is this your signature doing so?
[DEFENDANT]: Yes.
THE COURT: Okay. I’ll accept that waiver of jury trial as knowing and
voluntary; set the matter then for a bench trial and a pretrial date.”
¶ 16 The written jury waiver stated, “I, the undersigned defendant, having been
advised of my right to a jury trial, do hereby waive my right to a jury trial and enter a plea of not
guilty to the offense(s) charged.” The document bore defendant’s signature.
¶ 17 C. Pretrial Motions
¶ 18 In January 2021, the State filed a motion to admit other crimes evidence pursuant
to section 115-7.3 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-7.3 (West
2020)). Specifically, the State sought to admit evidence that defendant also committed acts of
sexual conduct against E.J. in 2002 when E.J. was under the age of 18. That same day, defendant
filed a motion in limine seeking to bar the same evidence.

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¶ 19 In February 2021, the trial court conducted a hearing on the motions. The State
proffered the anticipated evidence regarding defendant’s sexual abuse of E.J. by summarizing
four police reports and a bystander’s report. Generally, in 2002, when E.J. was five years old, he
lived with his mother and defendant, who were dating. In December 2002, E.J. told his father
that defendant had been touching his “privates.” During a subsequent police investigation, E.J.
disclosed that defendant touched his “pee pee” nearly “every day” while his mother was at work.
A few months later, E.J. disclosed that defendant had done more than just touch his penis during
these incidents; defendant also sucked on E.J.’s penis and made E.J. suck on his penis.
¶ 20 In March 2021, the trial court entered a written order granting the State’s motion
to admit the evidence. However, in April 2021, defendant filed a motion to reconsider the ruling,
and in January 2022, following a hearing, the court reversed its decision and denied the State’s
motion to admit the other crimes evidence. (We note that the record on appeal does not include a
transcript of this hearing; accordingly, we do not know the basis for the trial court’s reversal.)
¶ 21 D. The Bench Trial
¶ 22 In April 2022, the trial court conducted a bench trial, at which the following
evidence was adduced.
¶ 23 1. The State’s Evidence
¶ 24 a. L.K.
¶ 25 L.K. testified that she was born in 2000 and was 21 years old at the time of trial.
She stated that she began living with defendant when she was approximately four years old after
her mother, Dawn D., began dating him. She and her mother moved into defendant’s home,
where they lived for about four and a half years along with defendant’s son, Dillon Upchurch.
¶ 26 L.K. testified that at first, her relationship with defendant was pleasant and

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friendly, but shortly after moving in, the relationship began to change when she noticed him
holding her tighter against his body when hugging her. She testified that the tight hugging made
her uncomfortable because she could feel a bulge in his groin area. She stated that, at four years
old, she did not know what the bulge was, but recalling it now, she knew it to be an erection.
¶ 27 L.K. testified that approximately two months after moving into the home,
defendant entered her bedroom while she was asleep, positioned her body so that her head hung
off the bed, and placed his penis near her mouth. She clarified that her eyes were closed, but she
knew it was defendant because the only other male in the house was Dillon, and she knew it was
not him because he was young and the person who turned her over was large. She stated that she
pretended to roll over, and defendant then left the room. She recalled that when he left, she
noticed a “salty taste” around her mouth. She felt skin on her mouth and described it as
“[s]limy.” She did not tell anyone about the incident at the time.
¶ 28 L.K. further described a subsequent incident in the basement’s laundry room that
occurred shortly after the first incident. Defendant had her lie on a pile of clothes, covered her
face with clothing, slid her pants down, began touching her vagina, then inserted what she
assumed was his finger. She said, “It felt like a smaller object, it was painful, but it wasn’t
absolute painful.” L.K. testified that the same thing happened a second time in the laundry room,
but she did not know exactly how much time passed between the incidents.
¶ 29 L.K. also testified that sometime after the second laundry room incident, she and
defendant were in between the kitchen and living room when he pulled her pants down, pushed
her head downward so her buttocks were upward, and “inserted something into [her] vagina.”
She did not know at the time but now knew that it was his penis. She said he was making
grunting noises while “inserting something into [her] vagina while holding [her] head to the

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ground.”
¶ 30 L.K. described a fourth and fifth incident occurring in the laundry room, during
which defendant again pulled her pants down and inserted his finger into her vagina. L.K. also
described an incident occurring in defendant’s car when she and defendant were picking up
defendant’s son from school. While waiting in the parking lot, defendant “unzipped his pants and
pulled out his penis, grabbed [her] hand and then started making [her] hold [his penis] and rub
it.” She said she was seven or eight years old when she and her mother moved out of the house
and had no further contact with defendant.
¶ 31 L.K. never told anyone about the incidents when she was young because she
feared defendant and he threatened to hurt her. She eventually told her mother what had
happened in March 2019, when she was 18 years old. Her mother was laughing at a video of
defendant getting caught cheating. L.K. said that seeing him in the video made him more human
and she did not feel that she needed to be afraid of him anymore.
¶ 32 On cross-examination, defense counsel challenged L.K.’s recollection of certain
details, such as the configuration of her bedroom, where she went to kindergarten, whether other
people stayed overnight at the house, and what pediatrician she saw between 2004 and 2008.
L.K. acknowledged difficulty recalling those and other details peripheral to the charged offenses
due to the passage of time. She also did not recall meeting defendant or spending time with him
before she and her mother moved into his house, and she did not recall seeing him after they
moved out in 2008.
¶ 33 Defense counsel also asked L.K. about differences between her trial testimony
and statements she had written in a notebook in 2019. For example, regarding the first incident in
the bedroom, L.K. had written in her notebook that a lava lamp allowed her to see defendant

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standing in the doorway wearing boxer shorts. When confronted with the difference between her
statement in the notebook and trial testimony that she had her eyes closed and did not see
defendant, she stated, “Today I do not recall seeing him; this day I must have recalled seeing
him.”
¶ 34 Defense counsel further asked L.K. about her testimony that in the living room,
defendant put his penis in her vagina. L.K. acknowledged that she did not state either in her
notebook or when interviewed by the police that defendant put his penis in her vagina. Counsel
asked L.K., “The first time you said that to anyone that’s in this courtroom was today, correct?”
L.K. answered that she had previously mentioned only the finger incidents, but she corrected the
omission while testifying.
¶ 35 b. Dawn
¶ 36 Dawn testified that she was L.K.’s mother. Dawn said that she and L.K. lived
with defendant from approximately 2004 until 2008, when she and defendant broke up.
¶ 37 Dawn further testified that in 2019, she viewed a video posted online by a former
girlfriend of defendant. Dawn showed the video to L.K., and about 15 minutes later, L.K. told
her that defendant had sexually abused her on “many different occasions” when they lived with
him. Dawn contacted the police.
¶ 38 c. K.L.
¶ 39 K.L. testified that she was born in 1997 and grew up with L.K. Because their
mothers were close friends, K.L. considered L.K. to be her cousin. Between 2005 and 2008, K.L.
was 8 to 11 years old. During that time period, she frequently stayed overnight at the home L.K.
lived in with defendant and Dawn. She visited “[a]t least every couple of weeks,” and she
sometimes stayed for longer than a single night during the summer.

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¶ 40 K.L. testified regarding an incident that occurred at defendant’s home when she
was about eight years old. She and L.K. were lying on the floor in the living room watching
television. L.K. was asleep, and K.L. pretended she was asleep when she heard someone come
out of defendant’s bedroom. Defendant laid down beside her and began rubbing her back. She
knew it was defendant because of the height difference, explaining that his “head was over my
head and his feet were past my feet.” She explained that, although her brother and Dillon were
also at the house, neither of them was that tall.
¶ 41 K.L. stated that defendant rolled her over and rubbed her stomach, cupped her
breasts, then put his finger in her pants and touched her vagina. She pretended to be asleep but
acted “restless” and attempted to roll over and tuck the blanket around her, but he kept pulling
the blanket and rubbing her. After he went back to his room, she woke L.K., and the girls went to
L.K.’s room, where K.L. locked the door.
¶ 42 After Dawn broke up with defendant, when K.L. was about 12 years old, K.L.
told Dawn what happened, but she did not tell her that he touched her breasts and vagina. When
asked why, K.L. stated she was embarrassed and afraid of Dawn’s reaction because the incident
made K.L. feel “disgusting.” K.L. did not talk about the allegations again until Dawn asked her
to come over after she learned of L.K.’s allegations. At that time, K.L. wrote down what had
occurred to her back in 2008.
¶ 43 On cross-examination, defense counsel questioned K.L. about differences
between her trial testimony and her earlier written statement. He pointed out that in her
statement, she wrote that defendant touched her over her pajamas. K.L. responded by explaining
that defendant began by rubbing her over her pajamas, but he then went “underneath [her] shirt.”
Counsel also pointed out that K.L. wrote that defendant “only rubbed all the way up to under

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[her] chest,” not that he cupped her breast. K.L. said rubbing “under her chest” meant cupping
her breast, but she acknowledged that she wrote “under [her] chest” instead of “cupped [her]
breast.” Counsel also pointed out that she wrote that defendant touched “the top of [her] vagina.”
K.L. answered, “Yes, that would be touching my vagina, yes.”
¶ 44 2. Defendant’s Evidence
¶ 45 a. Sydnie Hull
¶ 46 Sydnie Hull testified that she was born in 1996. She lived down the street from
defendant’s house from 2000 to 2010 and was a friend of defendant’s son. Between 2004 and
2008, she visited defendant’s house often, stating that she went there after school “at least a
couple days out of the week, if not more.” During the summertime, she was over there “a lot.”
She testified that she had spent the night at the house but did not state how often. Hull testified
about the layout of the house and the details of L.K.’s bedroom. Hull said that when she was at
the house, she never saw anything sexually inappropriate happen between defendant and L.K.
¶ 47 b. Richard Bishop
¶ 48 Richard Bishop testified that he and defendant’s son, Dillon, became friends in
fourth grade, which was in 2004 or 2005. Bishop spent every other weekend at defendant’s
house. He stated that he never saw defendant act sexually inappropriately with L.K. He did not
recall there being locks on the bedroom doors.
¶ 49 c. Dillon
¶ 50 Dillon testified that he was born in 1996 and was defendant’s son. Between 2004
and 2008, he resided at defendant’s home with defendant, Dawn, and L.K. His father did most of
the chores around the house. It was rare for Dillon and L.K. to be home alone with defendant.
Dawn worked weekends at Lowe’s during “the back half” of the 2004 to 2008 time period when

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they all lived together. Dillon never saw defendant do any of the things that L.K. and K.L.
alleged.
¶ 51 On cross-examination, Dillon stated that he and defendant had talked often about
the charges against defendant and went through the police reports together.
¶ 52 d. Defendant
¶ 53 Defendant testified that he was 57 years old and had lived in the same home in
Byron, Illinois, since 1998. Between 2004 and 2008, he lived there with Dillon, L.K., and Dawn.
He dated Dawn for approximately a year before she and L.K. moved in. During that year, he
spent time with Dawn and L.K., including going to movies and dinner and taking the children to
the zoo. He ended the relationship because he could no longer get along with Dawn.
¶ 54 Defendant testified that after Dawn and L.K. moved out in 2008, he saw them
again approximately a year later. He explained that Dawn called him, learned he was at his farm,
and stopped by; they took pictures of the children together with the dog. Sometime after that, he
saw L.K. at a gas station while he was delivering fuel, and he spoke with her.
¶ 55 Defendant testified that he had owned his own trucking company since 1994.
Between 2004 and 2008, he worked six to seven days a week for a minimum of 80 hours each
week. Because his work hauling fuel was local, he was home each night.
¶ 56 Defendant testified that Dillon attended school in Byron, and he drove him to
school through first grade. However, Dillon began riding the bus in second grade, and defendant
no longer picked him up.
¶ 57 Defendant also testified about the physical layout of the house, which had two
floors and a garage. The only interior door with a lock was the bathroom; L.K.’s bedroom door
could not be locked. Defendant also stated that he wore only briefs and not boxer shorts. He also

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testified that there was no lava lamp in L.K.’s bedroom, nor did she have a canopy over her bed
as she had testified.
¶ 58 Defendant denied doing any of the things that L.K. and K.L. alleged. He denied
any other sexual contact with either of them. He acknowledged that he and Dillon had gone
through the police reports together at his counsel’s office and that he had spoken briefly with
some of the witnesses who testified for the defense. He denied telling those witnesses what to
say.
¶ 59 3. The Trial Court’s Ruling
¶ 60 In May 2022, the trial court issued an oral ruling finding defendant guilty of
counts I (predatory criminal sexual assault—“put his penis on the mouth of L.K.”), II (predatory
criminal sexual assault—“put his finger in the vagina of L.K.”), IV (aggravated criminal sexual
abuse—“put the hand of L.K. on his penis”), and VI (aggravated criminal sexual abuse—“put his
hand on the vagina of K.L.”).
¶ 61 Counts III and V had earlier been dismissed following defendant’s motion for a
directed finding at the close of the State’s case. The trial court dismissed count III, which alleged
an act of sexual penetration against L.K. in that defendant “put an object in [her] vagina,”
because the State did not present evidence of any “object” being placed in her vagina, only body
parts, and the word “object” in the statutory definition of “sexual penetration” does not include
parts of the body. See People v. Maggette, 195 Ill. 2d 336, 350 (2001). The court dismissed
count V, which alleged an act of sexual penetration in that defendant “touched the vagina of K.L.
with his finger,” because K.L.’s testimony that defendant rubbed her vaginal area lacked
specificity to prove penetration. The court’s comprehensive ruling comprised approximately 34
pages of the written transcript.

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¶ 62 E. Defendant’s Posttrial Motion
¶ 63 In May 2022, during a status hearing regarding posttrial motions, defendant’s trial
counsel, Russell Crull, advised the trial court that defendant had retained new counsel, who
would be filing posttrial motions. In June 2022, attorney Stephen Komie filed his appearance on
defendant’s behalf.
¶ 64 1. The Motion and the Exhibits
¶ 65 In January 2023, following three motions for extension of time, defendant,
through his new counsel, filed a posttrial motion arguing, relevant to this appeal, that (1) the trial
court failed to make sufficient inquiries to ensure defendant’s jury waiver was knowing and
voluntary, (2) trial counsel was ineffective for failing to retain a medical expert to testify that the
sexual assaults described by L.K. were medically impossible at the age of four or five years old,
and (3) trial counsel was ineffective for failing to argue that the predatory criminal sexual assault
charging documents were defective because they failed to allege that defendant acted for the
purpose of his sexual gratification. In support of his third argument, defendant relied on Kidd, in
which, according to defendant, the Illinois Supreme Court reversed the defendant’s predatory
criminal assault convictions because the charging information “failed to include” the essential
elements of “ ‘for the purposes of sexual gratification’ ” of the defendant or the victim.
¶ 66 Defendant attached four exhibits in support of his claim regarding the failure to
obtain an expert witness to assist the defense, which we now describe.
¶ 67 a. Dr. Demetra Soter’s “Forensic Examination” of the Trial Transcript
¶ 68 The first exhibit was a “Forensic Examination of the trial evidence and testimony”
in defendant’s case by Dr. Demetra Soter. Soter stated that she was “retained as a Forensic
Pediatrician, Medical Doctor, to examine the testimony of witnesses testifying at a bench trial

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claiming to be victims of childhood sexual assault at approximately the ages of four and eight
years of age.” Soter stated that she had “read and analyzed the trial transcripts to determine
whether or not the allegations were ‘true allegations’ of childhood sexual assault or in the
alternative are ‘false allegations of childhood sexual assault.’ ” (Emphasis in original.)
¶ 69 Soter concluded that, based upon her review of the trial transcript, “[t]o a
reasonable degree of medical certainty,” L.K. and K.L. were not sexually assaulted by defendant.
Regarding L.K., Soter based her conclusion on the following seven factors: (1) “the absence of
medical evidence of either digital or penile penetration,” (2) “late reporting to the authorities,”
(3) “poor historical recollection of [L.K.],” (4) “changing historical recall such as suddenly
remembering penetration by an adult male erect penis,” (5) “inaccurate historical recall such as
the lava lamp, the canopy bed, the timing and the underwear,” (6) “the absence of reporting of
injuries by the school teach[er] or staff,” and (7) “contamination of memory by Dawn.”
¶ 70 Regarding K.L., Soter based her conclusion on the following seven factors:
(1) “the absence of medical evidence,” (2) “the poor historical memory and recollection [of
K.L.],” (3) “the changing historical recall such as whether it occurred over or under pajamas,
whether on side or tummy,” (4) “inaccurate historical recall such as the nonexistent lock on
bedroom door,” (5) “the absence of reporting to the pediatrician or police of K.L.’s statement to
Dawn,” (6) “the lack of confirmation in Dawn’s testimony, that she was informed by [K.L.] at
age 12,” and (7) “the contamination of memory by Dawn.”
¶ 71 b. The Affidavits
¶ 72 Defendant also attached three affidavits relating to his claim of counsel’s failure
to obtain a medical expert.
¶ 73 The first affidavit was from Dillon. He stated that he attended a meeting with his

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father and trial counsel in the summer of 2020 at which defendant told trial counsel that he
wanted to hire a “memory specialist to deal with the memories of small children.” Dillon stated
that counsel “thought it was a great idea and he said he was going to look into it.” At a later
meeting, counsel reported that he had found memory specialists in Wisconsin and California;
defendant favored hiring them. After that, Dillon heard nothing further until late 2021 or early
2022, when he attended a trial preparation meeting with his father. At that meeting, defendant
asked what experts counsel was going to hire, and trial counsel answered that he “did not think
we needed any experts due to the lack of evidence of sexual abuse.”
¶ 74 The second affidavit was from defendant’s sister, Paula Price, stating that during
pretrial proceedings in 2021 and 2022, she urged trial counsel to hire a “professional memory
witness with a doctorate in Psychology,” as well as a “medical doctor to refute the allegations of
sexual abuse.” Price averred that, “[a]t all times,” her brother was in favor of hiring forensic
experts, and at one pretrial hearing, trial counsel said he was “ ‘working on it.’ ”
¶ 75 The third affidavit was from Tina Peterson, defendant’s current girlfriend. She
stated that she attended a meeting with defendant and trial counsel to prepare for trial. Peterson
alleged, “Although [defendant] was certain that he wanted a medical expert, [trial counsel] had
not obtained one. When [defendant] asked about getting a physician, [trial counsel] told him he
did not need one.” Defendant and Peterson asked counsel to obtain a medical expert, and trial
counsel said “we did not need a doctor because he had gotten people off with less evidence to
support their defense.”
¶ 76 2. The Trial Court’s Ruling
¶ 77 In February 2024, the trial court conducted a hearing on defendant’s posttrial
motion and took the matter under advisement. In June 2024, according to the docket sheet, the

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court conducted a hearing at which it denied defendant’s posttrial motion and entered a written
order that day explaining its ruling. (A transcript of that hearing is not included as part of the
record on appeal.)
¶ 78 First, the trial court found that defendant knowingly and voluntarily waived his
right to a jury trial. The court noted that, in addition to its colloquy with defendant (supra ¶ 15),
(1) defendant had previously waived his right to a jury trial in Ogle County case No. 22-CM-244
and accordingly had “prior experience with the justice system in which he entered a jury trial
waiver” and (2) the contents of defendant’s bond form filed in August 2019 showed that “he had
the intellectual capacity to understand the jury trial waiver and aforementioned admonishments
given by the Court.”
¶ 79 Defendant’s bond form indicated that he graduated from high school and
completed one year of diesel mechanic school at a community college. It further stated that he
had been “self employed at Dewey Upchurch and Son Trucking for the past thirty-two years”
and earned “between $700,000 and $800,000 annually.” Defendant denied any physical or
emotional health concerns or substance abuse problems.
¶ 80 Second, the trial court found that the elements of the offense of predatory criminal
sexual assault “were properly reflected in the indictments based on the statute in effect in 2004
and 2008.” Moreover, defendant’s reliance on Kidd in support of his argument that the charging
documents were deficient was misplaced because “[t]he statute referenced in Kidd was not the
applicable statute in 2004 and 2008.”
¶ 81 Third, the trial court found that defense counsel was not ineffective by failing to
present expert evidence “serving to undermine the veracity of [L.K.’s] testimony.” The court
cited People v. Miller, 2022 IL App (2d) 210601, in support of its decision, noting that in, in that

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case, “trial counsel could not be deemed constitutionally deficient for failing to obtain a Forensic
Child Psychologist to testify regarding the reliability of the child victim[’]s statement at
defendant’s trial for predatory criminal sexual assault and aggravated criminal sexual abuse.”
The court further explained its ruling as follows:
“Defendant’s post-trial motion references many discussions between the
Defendant, Defendant’s family and defense counsel regarding the use of an expert
in this case. The record also reflects that defense counsel was considering the use
of an expert. Most importantly, if Defense counsel had utilized expert testimony
at trial, he may have opened the door for the State to present testimony of [E.J.] in
rebuttal. The Court had barred testimony of [E.J.] in a pretrial decision. However,
that ruling could have been revisited if expert testimony was presented. Under
Strickland[ v. Washington, 466 U.S. 668 (1984)], it is well supported law that the
calling of certain witnesses are a matter of trial strategy at the discretion of
defense counsel. Defense counsel was not deficient in his decision to not call an
expert in this case.”
¶ 82 F. The Sentencing Hearing
¶ 83 In April 2025, the trial court conducted a sentencing hearing. Relevant to this
appeal, the court considered a presentence investigation report (PSI) that revealed that in Ogle
County case No. 02-CM-244, defendant was sentenced to probation for the offense of battery
causing bodily harm. The PSI also stated that defendant had been employed continuously since
1985 as a truck driver or fuel hauler and owned his own trucking company from 1994 until 2019.
A former employer reported defendant to be an exceptional and dependable employee.
¶ 84 The PSI also noted that defendant graduated from high school in 1983. During his

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schooling, he never experienced any problems and was not in special education. He attended
“Agricultural Mechanics” courses at a community college in 1983. Defendant reported that he
was in good health, had never used drugs, and had used alcohol only once in his twenties.
¶ 85 The trial court sentenced defendant to a total of 25 years in prison, comprised of
(1) consecutive terms of 12 years and 6 months for counts I and II (predatory criminal sexual
assault of a child) and (2) concurrent terms of 5 years for counts IV and VI (aggravated criminal
sexual abuse).
¶ 86 This appeal followed.
¶ 87 II. ANALYSIS
¶ 88 Defendant appeals, arguing (1) the trial court failed to properly admonish him
prior to accepting his jury waiver and (2) his trial counsel rendered ineffective assistance by
failing to (a) present expert testimony and (b) bring to the court’s attention a pending PLA in
Kidd.
¶ 89 We disagree and affirm.
¶ 90 A. Defendant’s Jury Waiver
¶ 91 Defendant first argues that he “did not and could not intelligently, knowingly and
voluntarily waive his right to a jury trial when the trial court failed to explain the dynamics and
benefits of a jury trial.” Defendant specifically complains that the court failed to explain that
(1) a jury would decide defendant’s guilt or innocence, (2) defendant and his attorney could
participate in jury selection and strike impartial jurors, and (3) all prospective jurors would have
to understand and accept the Zehr principles (see People v. Zehr, 103 Ill. 2d 472, 477 (1984); Ill.
S. Ct. Rule 431(b) (eff. July 1, 2012) (“(1) that the defendant is presumed innocent of the
charge(s) against him or her; (2) that before a defendant can be convicted the State must prove

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the defendant guilty beyond a reasonable doubt; (3) that the defendant is not required to offer any
evidence on his or her own behalf; and (4) that if a defendant does not testify, it cannot be held
against him or her.”)).
¶ 92 1. The Applicable Law
¶ 93 The right to a trial by jury is guaranteed by both the United States and Illinois
Constitutions. See U.S. Const. amends. VI, XIV; Ill. Const. 1970, art. I, §§ 8, 13. “A defendant
may waive his right to a jury trial, but for a valid jury waiver, the trial court must ensure that the
waiver was knowing and understanding.” People v. Hutt, 2023 IL 128170, ¶ 30 (citing People v.
Bracey, 213 Ill. 2d 265, 269 (2004)); 725 ILCS 5/103-6 (West 2016) (“Every person *** shall
have the right to a trial by jury unless (i) understandingly waived by defendant in open court.”).
“Whether a waiver is knowing and understanding depends on the particular facts and
circumstances of each case.” Id. “For a waiver to be effective, the court need not impart to [the]
defendant any set admonition or advice.” Bracey, 213 Ill. 2d at 270.
¶ 94 “ ‘[A] defendant who challenges a jury waiver bears the burden of establishing
that the waiver was invalid.’ ” People v. Parker, 2016 IL App (1st) 141597, ¶ 47.
¶ 95 “Generally, a jury waiver is valid if it is made by defense counsel in defendant’s
presence in open court, without an objection by defendant.” Bracey, 213 Ill. 2d at 270; see
People v. Frey, 103 Ill. 2d 327, 332 (1984) (“Recognizing that the accused typically speaks and
acts through his attorney, we have given effect to jury waivers made by defense counsel in [a]
defendant’s presence where [the] defendant gave no indication of any objection to the court
hearing the case.”). “In determining whether a waiver was knowingly made, the reviewing court
may consider the defendant’s silence when his or her attorney requested a bench trial, as well as
the defendant’s prior interactions with the justice system.” People v. Rogers, 2022 IL App (1st)

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200860-U, ¶ 19.
¶ 96 “A written waiver *** is one means by which a defendant’s intent may be
established” but “is not always dispositive of a valid waiver.” Bracey, 213 Ill. 2d at 269-70.
However, “[t]he existence of a signed written waiver weighs in favor of finding the waiver to be
knowing, intelligent, and voluntary.” Rogers, 2022 IL App (1st) 200860-U, ¶ 19.
¶ 97 “If the facts are not in question, the issue of whether [a] defendant knowingly
waived his right to a jury trial is a question of law that we review de novo.” Hutt, 2023 IL
128170, ¶ 30.
¶ 98 2. This Case
¶ 99 As earlier noted, defendant’s primary argument is that his jury waiver was invalid
because, due to the trial court’s not explaining to him the dynamics of a jury trial, he did not
fully know or understand the right he was giving up.
¶ 100 Defendant cites no authority holding that for a jury waiver to be valid, a trial court
must explain to a defendant that (1) a jury would decide the defendant’s guilt or innocence,
(2) the defendant and his attorney could participate in jury selection and strike impartial jurors,
and (3) all prospective jurors would have to understand and accept the Zehr principles. On the
contrary, the supreme court has clearly instructed that no set admonition or advice is required.
Bracey, 213 Ill. 2d at 270 (citing People v. Smith, 106 Ill. 2d 327, 334 (1985)). Importantly, by
way of comparison, the supreme court has pointed out what admonitions are required for a
waiver of the right to counsel (Ill. S. Ct. R. 401(a) (eff. July 1, 1984)), guilty pleas (Ill. S. Ct. R.
402(a) (eff. July 1, 2012)), and admissions or stipulations in proceedings to revoke probation,
conditional discharge, or supervision (Ill. S. Ct. R. 402A (eff. Nov. 1, 2003)), yet the supreme
court has not done the same for waiver of the right to a jury trial. Although a trial court would be

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following best practices to admonish a defendant in the manner defendant suggests, and doing so
would avoid appeals such as the present one, detailed admonitions about the dynamics of a jury
trial are not required.
¶ 101 However, the trial court is required to create a record showing that a defendant’s
waiver was knowing and understanding, which depends on the facts of each case. Hutt, 2023 IL
128170, ¶ 30.
¶ 102 To assist us in making that determination in the present case, we look at cases
with similar facts. One such case is Parker, 2016 IL App (1st) 141597, ¶ 44, in which the record
reflected that “the [trial] court asked Mr. Parker if it was his signature on the jury waiver, told
him ‘[b]y signing that you give up the right to have a trial by Jury,’ and asked him whether he
knew what a jury trial was, to which Mr. Parker responded ‘Yes.’ ” The defendant challenged the
validity of his jury waiver on the same basis that defendant raises in this case—namely, that the
trial court failed to “ ‘explain a jury or bench trial, address whether [M]r. Parker understood that
he had a constitutional right to a jury trial, or explain the implications of waiving that right.’ ” Id.
The appellate court concluded that the defendant’s waiver was valid, reasoning that the record in
that case “demonstrates that Mr. Parker was made aware of his right to a jury trial. His signed
jury waiver and affirmation in open court show that he knowingly and voluntarily waived that
right.” Id. ¶ 53.
¶ 103 Similarly, in Rogers, 2022 IL App (1st) 200860-U, ¶ 6, the defendant executed a
written jury waiver, and the trial court admonished the defendant as follows in open court:
“ ‘THE COURT: *** [D]id you realize that when you were signing this
document you were indicating to the Court that you wanted to waive or in other
words give up your right to a jury trial?

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[DEFENDANT]: Yes, sir.
THE COURT: Do you know what a jury trial is?
[DEFENDANT]: Yes, sir.
THE COURT: Did anybody force or threaten you in any way to get you to
waive the jury trial?
[DEFENDANT]: No, sir.
THE COURT: Did anybody promise you anything to get you to waive it?
[DEFENDANT]: No, sir.
THE COURT: Did you do it of your own free will?
[DEFENDANT]: Yes, sir.’ ”
The defendant argued on appeal that his jury waiver was not valid because the trial court failed
to do the following:
“(1) explain the differences between a bench and jury trial to confirm that he
understood those differences; (2) advise him that, in the event of a jury trial, a
jury of twelve people would have to reach a unanimous decision about whether
the prosecution proved beyond a reasonable doubt that he committed the charged
offense; and (3) ascertain that he understood that his waiver of the right to a jury
trial was irrevocable.” Id. ¶ 14.
¶ 104 The appellate court affirmed, concluding that the waiver was knowing and
voluntary because (1) the defendant was present in open court when his attorney requested a
bench trial and defendant made no objection, (2) the defendant had signed a prewritten jury trial
waiver form on the date of the bench trial, and (3) the defendant, who “had attended high school
through junior year and received good grades,” responded to the trial court’s admonitions “in a

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manner that confirmed he understood what a jury trial was and that he had not been coerced into
waiving that right.” Id. ¶¶ 20-21.
¶ 105 The present case is factually similar to Parker and Rogers. Defendant (1) was
represented by counsel and made no objection when his counsel requested a bench trial in open
court, (2) signed a written jury waiver, and (3) stated in response to the trial court’s question that
he understood what a jury trial was. Moreover, the court’s docket sheet demonstrates that
defendant was present in court with his counsel on 11 different occasions between the date of his
jury waiver and the date of his bench trial; at all times, the case remained on course for a bench
trial without any objection by defendant.
¶ 106 Defendant bears the burden of demonstrating that his jury waiver was not
knowing or understanding; however, he has failed at this task. He has pointed to nothing in the
record to show why the trial court should not have taken him at his word when he told the court
that he understood what a jury trial was. Moreover, the record shows that defendant was an
intelligent and capable person who graduated high school, attended some community college, ran
his own trucking business from 1994 to 2019, and was reported to be an exemplary and reliable
employee.
¶ 107 Defendant additionally contends that the trial court erred by concluding, when
ruling on his posttrial motion, that his jury waiver was valid, in part, because he had previously
waived his right to a jury trial as part of a misdemeanor guilty plea. We need not address that
argument because our review is de novo, and even absent consideration of defendant’s prior
court experience, for the reasons stated, the record demonstrates that defendant’s jury waiver was
knowing and understanding.
¶ 108 B. Ineffective Assistance of Counsel

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¶ 109 1. The Applicable Law
¶ 110 A criminal defendant has a constitutional right to the effective assistance of
counsel under both the United States and Illinois Constitutions. See U.S. Const., amends. VI,
XIV; Ill. Const. 1970, art. I, § 8.
¶ 111 To prevail on a claim of ineffective assistance of counsel, a defendant must satisfy
the two-pronged test set forth in Strickland. People v. Haynes, 2024 IL 129795, ¶ 23. Under that
test, the defendant “must first show that, despite the strong presumption that the challenged
action was the product of sound trial strategy, counsel’s representation fell below an objective
standard of reasonableness under prevailing professional norms, such that he or she was not
functioning as the counsel guaranteed by the sixth amendment.” Id. “Second, the defendant must
establish prejudice by showing a reasonable probability that the proceeding would have resulted
differently absent counsel’s errors.” Id. “A defendant’s failure to establish either prong of the
Strickland test precludes a finding of ineffectiveness.” Id.
¶ 112 “Under the [deficient performance] prong, counsel is afforded wide latitude when
making tactical decisions.” People v. Brose, 2025 IL App (4th) 241407-U, ¶ 58 (citing
Strickland, 466 U.S. at 688-89). “[I]n order to establish deficient performance, the defendant
must overcome the strong presumption that the challenged action or inaction may have been the
product of strong trial strategy.” People v. Smith, 195 Ill. 2d 179, 188 (2001).
¶ 113 “It is well established that decisions concerning which witnesses to call at trial
and what evidence to present on [a] defendant’s behalf ultimately rest with trial counsel.” People
v. Madej, 177 Ill. 2d 116, 148 (1997). “Such decisions have long been viewed as matters of trial
strategy, which are generally immune from claims of ineffective assistance of counsel.” Id. “This
general rule is predicated upon our recognition that the right to effective assistance of counsel

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refers to ‘competent, not perfect representation.” (Internal quotation marks omitted.) Id. at 149
(quoting People v. Stewart, 104 Ill. 2d 463, 492 (1984)). “Hence, mistakes in trial strategy or
tactics or in judgment do not of themselves render the representation incompetent.” (Internal
quotation marks omitted.) Id. “The only exception to this rule is when counsel’s chosen trial
strategy is so unsound that counsel entirely fails to conduct any meaningful adversarial testing.”
(Internal quotation marks omitted.) Id.
¶ 114 Reviewing courts should be “highly deferential to trial counsel on matters of trial
strategy, making every effort to evaluate counsel’s performance from his perspective at the time,
rather than through the lens of hindsight.” People v. Perry, 224 Ill. 2d 312, 344 (2007).
¶ 115 2. This Case
¶ 116 a. Failure To Present Expert Testimony
¶ 117 Defendant argues that trial counsel was ineffective for failing to present expert
testimony from a medical doctor or child abuse memory specialist regarding the impossibility of
the described acts of penetration and the unreliability of L.K.’s and K.L.’s delayed disclosures.
In support, defendant relies primarily on a letter from Soter—a medical doctor with experience
in treating child victims of sexual abuse—stating that she reviewed the trial testimony and
concluded, to a reasonable degree of scientific certainty, that neither K.L. nor L.K. were sexually
abused as they claimed. Soter based her conclusion on seven factors: (1) the absence of medical
evidence of penetration, (2) late reporting, (3) poor historical recollection, (4) changing historical
recall, (5) inaccurate historical details, (6) the absence of contemporaneous reports of injury, and
(7) contamination of memory by Dawn.
¶ 118 In the present case, defendant has not established that his trial counsel performed
deficiently. The record demonstrates that counsel considered the use of experts and ultimately

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decided against it based upon his evaluation of the strength (or weakness) of the State’s
evidence. Indeed, counsel’s closing argument demonstrates his strategic decision to emphasize
the inconsistencies between L.K.’s and K.L.’s earlier statements and their trial testimony, as well
as their inability to recall details about that time period. He employed that strategy throughout his
questioning of the witnesses as well, and that strategy was not unreasonable given the facts of
this case. Simply put, counsel accomplished through closing argument the same thing that
defendant’s proposed expert sought to do.
¶ 119 Moreover, the trial court found that presenting such testimony risked opening the
door to the previously barred other crimes evidence involving E.J. Counsel made a reasonable
strategic decision to prevent this from happening. Because counsel’s strategic decisions were
reasonable when viewed from the lens of the information he had at the time, and not from
hindsight, defendant has not met his burden of showing that counsel performed deficiently.
¶ 120 Even setting strategy aside, the proposed testimony of Soter would have been
inadmissible as improper direct commentary on the credibility of other witnesses. In People v.
Becker, 239 Ill. 2d 215, 220-24 (2010), during proceedings pursuant to section 115-10 of the
Code (725 ILCS 6/115-10 (West 2006)) in which the State sought to admit hearsay statements of
the child victim at trial, the defense called Dr. Kathleen Okla, a child psychologist and forensic
examiner, to testify about the reliability of the victim’s hearsay statements. Okla testified that she
had not interviewed the victim but instead reviewed “interview notes, transcripts, and videos.”
Becker, 239 Ill. 2d at 223. Based on her review of those videos, Okla concluded that the victim
“could not give a ‘reliable’ statement in person or on the stand” due to suggestive questioning,
postevent information, and possible influence by her mother. Id. at 223-24.
¶ 121 The trial court entered an order admitting the victim’s hearsay statements and

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excluded Okla from testifying at trial. Id. at 224. The supreme court affirmed, concluding that
the trial court properly excluded Okla’s testimony because it “would constitute direct, adverse
comment on the ‘credibility’ of [the victim].” Id. at 236. The supreme court explained, “Under
Illinois law, it is generally improper to ask one witness to comment directly on the credibility of
another witness [citations] as [q]uestions of credibility are to be resolved by the trier of fact.”
(Internal quotation marks omitted.) Id. The court also noted that the psychologist’s proposed
testimony would, “for all practical purposes, advise the jury to disregard not only [the victim’s]
hearsay statements, but her trial testimony as well.” Id. at 235. The court further stated that the
observation that children may be subject to suggestion was not a matter beyond the ken of the
average juror. Id. at 236-37.
¶ 122 The present case is similar to Becker. Soter never interviewed L.K. or K.L.,
reviewed only the trial transcripts, and offered an ultimate opinion that their testimony was false.
Moreover, just like Okla’s proposed testimony in Becker, Soter’s observations that late reporting,
inaccurate, changing, or poor historical recall, and the absence of contemporaneous reports of
injury might render an allegation unreliable are not beyond the ken of the average juror and do
not require expert testimony.
¶ 123 This court has similarly strongly criticized permitting a witness in a criminal case
to express an opinion as to another witness’s credibility, writing as follows:
“This court has described it as a ‘fundamental rule that one witness should not be
allowed to express his opinion as to another witness’s credibility.’ (Emphasis
added.) People v. Henderson, 394 Ill. App. 3d 747, 754 *** (2009). ‘Questions of
credibility are to be resolved by the trier of fact.’ People v. Kokoraleis, 132 Ill. 2d
235, 264 *** (1989). Accordingly, ‘ “it is generally improper to ask one witness

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to comment directly on the credibility of another witness.” ’ People v. Boling,
2014 IL App (4th) 120634, ¶ 121 *** (quoting [Becker, 239 Ill. 2d at 236]).”
People v. Brothers, 2015 IL App (4th) 130644, ¶ 125.
¶ 124 In both Brothers and Boling, we criticized the admission of such evidence, even
though the State’s witnesses in those cases had volunteered that testimony from the witness
stand, noting that “ ‘the State was responsible for adequately preparing its witnesses to ensure
that [the witnesses] did not volunteer improper and prejudicial testimony.’ ” (Emphasis in
original.) Id. ¶ 126 (quoting Boling, 2014 IL App (4th) 120634, ¶ 122).
¶ 125 Regarding the medical component of Soter’s proposed testimony, we look to
People v. Nuckles, 2019 IL App (2d) 150761-U. We briefly note that, although Nuckles is an
unpublished order filed pursuant to Illinois Supreme Court Rule 23 (eff. June 3, 2025), we
choose to discuss its analysis and reasoning. See People v. Parentice, 2026 IL App (4th) 250222,
¶¶ 92-93 (“Although an unpublished order is not binding authority, we as a court of review, are
entitled to consider it for any persuasive weight we might give it[.]”).
¶ 126 In Nuckles, the appellate court rejected the defendant’s claim of ineffective
assistance for failure to call a medical expert who would have testified that, had the offenses of
predatory criminal sexual assault occurred, physical evidence of sexual assault would have been
present. Id. ¶ 47. The court noted that only one of the three counts alleged vaginal penetration,
and the alleged intrusion was by the defendant’s finger; the second count alleged contact
between the defendant’s sex organ and the victim’s mouth; and the third count alleged
penetration in the form of “ ‘contact between [the defendant’s] sex organ and the sex organ of
[the victim].’ ” Id.

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¶ 127 The appellate court noted that the statutory definition of “sexual penetration”
encompassed two broad categories of conduct, including “ ‘contact between the sex organ *** of
one person by *** the sex organ *** of another person’ and ‘intrusion of any part of the body of
one person *** into the sex organ *** of another person.’ ” (Emphases in original.) Id. The court
further observed that “where a defendant is charged with intrusion as such, it is sufficient that the
State prove ‘any intrusion, however slight *** into the sex organ or anus of another person.’ ”
(Emphasis in original.) Id. (quoting 720 ILCS 5/11-0.1 (West 2010)). The court continued,
“Given this definition of ‘penetration,’ we do not accept defendant’s position that it is obvious
that, if the charged offenses occurred, medical evidence of them would exist.” Id. As a result, the
court concluded that counsel’s decision not to seek medical expert testimony “was reasonable
because such testimony would have been extremely unlikely to help defendant.” Id.
¶ 128 In the present case, we reach the same conclusion for the same reasons. Defendant
was found guilty of two counts of predatory criminal sexual assault against L.K. Those counts,
counts I and II, alleged that defendant committed acts of sexual penetration with L.K. by
(1) putting his penis on her mouth (count I) and (2) putting his finger in her vagina (count II). In
2004, like in 2010, the statutory definition of “sexual penetration” meant “any contact, however
slight, between the sex organ *** of one person by *** the sex organ, mouth or anus of another
person, or any intrusion, however slight, of any part of the body of one person *** into the sex
organ *** of another person.” 720 ILCS 5/12-12(f) (West 2004). Moreover, “female ‘sex organs’
include all the external genitalia, including the labia major and minor.” Nuckles, 2019 IL App
(2d) 150761-U, ¶ 47 (citing People v. Ikpoh, 242 Ill. App. 3d 365, 381-82 (1993)).
¶ 129 Because the same statutory definition of sexual penetration applies to the
predatory criminal sexual assault convictions in this case, Soter’s anatomical opinions would not

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have established that the acts of sexual penetration were medically impossible. For example,
regarding count I, L.K. testified that defendant “put his penis just around my mouth,” and “when
he had left I had noticed *** a salty taste around my mouth.” Counsel asked, “[Y]ou felt a penis
on your mouth?” L.K. answered, “Yes.” This evidence was sufficient to establish “any contact,
however slight,” between the sex organ” of defendant and the mouth of L.K. This evidence,
which meets the broad statutory definition of “sexual penetration,” would be commonly
understood to not leave medical evidence of having occurred.
¶ 130 Similarly, regarding count II, L.K. testified that defendant “slid my pants down
and started touching my vagina and then inserted what I can assume [to be] a finger.” She said,
“It felt like a smaller object, it was painful, but it wasn’t absolute[ly] painful.” She also said that
he “[slid] his hand around on top of *** [her] vagina and then in.” Soter’s proposed testimony
that “[a]n adult male finger, averaging one inch in diameter, would have been five times larger
than the vaginal opening of a 4-year-old child” and would have caused “significant pain and
bleeding” upon insertion, presumes both (1) L.K.’s precise age at the time of the assault and
(2) the depth of insertion, neither of which L.K. testified to with precision. The State needed to
establish only intrusion, however slight, by his finger into her vagina, which included the labia,
in order to prove sexual penetration. The fact that L.K. stated she felt only some pain, but not
serious pain, indicates the “intrusion” was not as significant as Soter’s proposed testimony
assumes.
¶ 131 For the reasons stated, we reject defendant’s claim that his trial counsel was
ineffective for not obtaining the testimony of Soter at trial because defendant’s argument that
Soter’s testimony would have been admissible is completely without merit. Accordingly,
because defendant has failed to (1) overcome the strong presumption that his counsel’s decision

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not to present expert testimony was a strategic decision, (2) demonstrate that his counsel
performed deficiently by failing to present inadmissible evidence, or (3) demonstrate that he was
prejudiced by his counsel’s failure to present unhelpful evidence, defendant has failed to
establish that his trial counsel rendered ineffective assistance.
¶ 132 b. Failure To Alert the Trial Court to a Pending PLA in Kidd
¶ 133 Last, defendant argues that trial counsel was ineffective for failing to research
pending supreme court litigation in Kidd, which defendant describes as involving “exactly the
same charges,” and by failing to challenge the predatory criminal sexual assault counts before or
during trial on the basis that the charging documents omitted the essential element that defendant
acted for the purpose of sexual gratification. This argument—again—is completely without
merit.
¶ 134 First, defendant points to no authority holding that an attorney performs
deficiently by failing to research or bring to the trial court’s attention that a PLA has been
allowed by the Illinois Supreme Court. We are not aware of any such authority, and we will not
be the first. The granting of a PLA by the supreme court signals only that the court has agreed to
review an issue; the granting of a PLA is not a statement on the merits of the issue raised therein,
one way or the other.
¶ 135 Moreover, the PLA in Kidd had nothing to do with the present case, as we now
explain.
¶ 136 In October 2021, this court issued its opinion in People v. Kidd, 2021 IL App
(4th) 190345, ¶ 78, affirming the defendant’s convictions for two counts of predatory criminal
sexual assault of a child. On appeal, the defendant had asserted, among other things, that the two
counts of predatory criminal sexual assault of a child failed to “set forth the element *** that the

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alleged contact was for the purpose of sexual gratification or arousal of [the defendant or the
victim].” Id. ¶ 54. Notably, and distinct from the present case, the charges in Kidd alleged that
the defendant “ ‘committed an act of sexual contact, however slight, with [the victim]’ *** ‘in
that [the defendant] placed his penis in contact with the mouth of [the victim].’ ” (Emphasis
added.) Id. ¶ 5.
¶ 137 This court rejected the defendant’s argument, reasoning that, because the State
had alleged “ ‘an act of sexual contact,’ ” and the Oxford English Dictionary Online defined
“sexual” as “ ‘relating to the instincts, physiological processes, and activities connected with
physical attraction or intimate physical contact between individuals,’ ” the language of the
indictment “did not meaningfully depart from the language of the statute defining the offense of
predatory criminal sexual assault of a child.” Id. ¶ 57.
¶ 138 In January 2022, the supreme court allowed the defendant’s PLA. People v. Kidd,
No. 127904 (Ill. Jan. 26, 2022).
¶ 139 In November 2022, after defendant’s trial in this case, the supreme court reversed.
Kidd, 2022 IL 127904, ¶ 31. The court explained that section 11-1.40(a)(1) of the Code (720
ILCS 5/11-1.40(a)(1) (West 2016)) permits a conviction in either of two ways: (1) an act of
“contact, however slight between the sex organ or anus of one person and the part of the body of
another for the purpose of sexual gratification or arousal of the victim or the accused” or (2) “an
act of sexual penetration.” Id. ¶¶ 19-20. When an indictment alleges contact, it must also allege
that the contact was for the purpose of sexual gratification or arousal. Id. ¶ 20.
“But, when [an] indictment alleges an act of penetration by a perpetrator 17 years
of age or older with a victim 13 years of age or younger, the indictment

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sufficiently pleads a count of predatory criminal sexual assault of a child, without
any allegation about the purpose of the penetration.” Id.
Because the indictment in Kidd charged “ ‘sexual contact’ ” and omitted the sexual gratification
element, it did not set forth all the elements of the offense. Id. ¶ 31.
¶ 140 Defendant’s evaluation of the impact of Kidd on his own case entirely misses the
mark. Kidd involved predatory criminal sexual assault based on allegations of sexual contact,
which also required allegations of sexual gratification. Predatory criminal sexual assault
allegations based on sexual penetration do not. Id. ¶ 20.
¶ 141 In the present case, defendant was charged under the statute in effect when the
offenses were alleged to have occurred—between 2004 and 2008. The statute in effect over that
time period provided that a person commits predatory criminal sexual assault if he “commits an
act of sexual penetration with a victim who was under 13 years of age.” 720 ILCS 5/12-
14.1(a)(1) (West 2004). It did not contain the later “contact *** for the purpose of sexual
gratification” alternative that the supreme court construed in Kidd. 720 ILCS 5/11-1.40(a)(1)
(West 2016).
¶ 142 Moreover, even if it had, the result would be the same. Each of the predatory
criminal sexual assault counts in this case alleged sexual penetration. Those counts did not
require an allegation that defendant acted for the purpose of sexual gratification. See Kidd, 2022
Il 127904, ¶ 20. The remaining counts alleged aggravated criminal sexual abuse (720 ILCS 5/12-
16(c)(1)(i) (West 2004)) and alleged acts of sexual conduct. Those counts included the allegation
that the conduct was for the purpose of sexual gratification.
¶ 143 For the foregoing reasons, Kidd had no application to defendant’s case. Because
Kidd had no application to defendant’s case, counsel could not have performed deficiently by

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failing to bring it to the trial court’s attention or attempting to challenge the indictments in this
case. Because counsel cannot be ineffective for failing to raise a meritless claim (People v.
Rogers, 2021 IL 126163, ¶ 32), defendant’s claim of ineffective assistance fails.
¶ 144 Although we have discussed at length why Kidd had no relevance to the present
case, we wish to emphasize that, even if an issue in a PLA did bear some relevance to a case
pending in the trial court, trial counsel does not perform deficiently by failing to bring to a trial
court’s attention the filing or granting of a PLA. That is because, as we have stated, a pending
PLA offers no insight into the supreme court’s ultimate decision about the merits, or lack
thereof, of the legal issue raised in the PLA. Supra ¶ 134.
¶ 145 For these same reasons, defendant’s related argument that the case must be
remanded for the trial court to conduct a Krankel inquiry into his claim of ineffective assistance
also fails.
¶ 146 Additionally, we note that this court has held that no Krankel inquiry is necessary
when a defendant has hired new counsel “who (1) has investigated the defendant’s claims of
ineffective assistance of trial counsel and (2) determined that it was appropriate to file a motion
for a new trial based upon a claim that defendant’s trial counsel was ineffective” (People v.
Harkey, 2025 IL App (4th) 230523, ¶ 74), which occurred in this case.
¶ 147 III. CONCLUSION
¶ 148 For the reasons stated, we affirm the judgment of the trial court.
¶ 149 Affirmed.

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