THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TOOLA O. TAYLOR, SR., Defendant-Appellant, 397 Ill. App. 3d 813

PRESIDING JUSTICE HOLDRIDGE delivered the opinion of the court: In a three-count indictment, the State alleged that the defendant, Toola O. Taylor, Sr., committed criminal offenses on July 18, 2006. Count I claimed that the defendant committed aggravated criminal sexual assault, while armed with a firearm (720 ILCS 5/12—14(a)(8) (West 2006)).

In count II, the State charged him with aggravated criminal sexual assault, by “DISPLAY[ING] OR THREATEN[ING] TO USE A DANGEROUS WEAPON OR AN OBJECT FASHIONED OR UTILIZED IN SUCH A MANNER AS TO LEAD THE VICTIM UNDER THE CIRCUMSTANCES TO REASONABLY BELIEVE IT TO BE A DANGEROUS WEAPON” (720 ILCS 5/12—14(a)(1) (West 2006)). We note, however, that the language in count II did not track the language of

section 12—14(a)(1) of the Criminal Code of 1961 (Code) that was applicable in 2006 when the crime was committed. In 2000, Public Act 91—404 (Pub. Act 91—404, eff. January 1, 2000), had inserted the phrase “other than a firearm” after the first use of the term “dangerous weapon” in

section 12—14(a)(1). Public Act 91— 404 also added, among other things,

section 12—14(a)(8), regarding aggravated criminal sexual assault with a firearm. Additionally, count III of the indictment charged the defendant with simple criminal sexual assault (720 ILCS 5/12—13(a)(1) (West 2006)). Before the jurors began their deliberations, the court gave them, among other instructions, an outdated instruction for count II, which did not specify that the dangerous weapon was to be one other than a firearm. The jury found that the defendant had committed both criminal sexual assault and aggravated criminal sexual assault, as charged in count II.

Additionally, pursuant to a special verdict form, the jury found that the defendant had not committed aggravated criminal sexual assault while armed with a firearm. The court sentenced the defendant to 32 years of imprisonment, based on count II alone.

On appeal, the defendant argues that, regarding count II: (1) it was plain error for the court to fail to instruct the jury that the dangerous weapon was to be one other than a firearm; (2) his attorney provided ineffective assistance by failing to object to the improper jury instruction; and (3) the State did not prove the elements of the offense beyond a reasonable doubt. We affirm. I. BACKGROUND At the trial, the victim, C.H., testified that in the early morning hours of the date in question, she was sitting on the front porch of her sister’s residence.

She said that the defendant approached her from her right side, told her to “shut up” and put a gun to her head. He then put his hand over her mouth and led her across the street to a field behind her sister’s house. C.H. stated that the defendant took her behind a garage, where he raped her. After the defendant finished the assault, he told C.H. to walk away slowly and not to look back or he would shoot her. When C.H. looked back at him, he shot the gun once into the air. On cross-examination, C.H. acknowledged that she did not know if a bullet came out of the gun when the defendant fired it.

She also admitted that she did not know whether the gun was a starter pistol or a “blank gun.” At the trial, police officers testified that they did not find a bullet casing at the crime scene. After the assault, C.H. ran to a nearby house. A resident of the house, Larry Johnson, testified that when C.H. came to the door, she told him that she had been raped. Johnson said that C.H. was “pretty upset” and her clothing looked as though she had been in a “scuffle.” Police officers who interviewed C.H. after the assault said that she was crying uncontrollably and appeared to be distraught.

C.H. was transported to a hospital, where she was examined by medical personnel. The State submitted evidence showing that a swab from C.H.’s vagina produced deoxyribonucleic acid (DNA) that matched the defendant’s DNA. A police officer testified that on August 3, 2006, C.H. did not identify the defendant in a photo array. However, she did identify the defendant as her assailant in a photo array on July 9, 2007. C.H. also identified the defendant at trial. The defendant testified that he did not rape C.H. but, rather, that they had consensual sex.

In his closing argument, defense counsel contended, among other things, that because there was no evidence that the defendant’s gun was capable of firing a projectile, the gun did not meet the definition of a firearm. After the closing arguments, the judge gave instructions to the jury. Defense counsel did not object to the instructions concerning count II.

Regarding count II, the judge said the following: “A person commits the offense of aggravated criminal sexual assault when he commits criminal sexual assault and displays or threatens to use a dangerous weapon or any object fashioned or utilized in such a manner as to lead the victim under the circumstances reasonably to believe it was to be a dangerous weapon. To sustain the charge of aggravated criminal sexual assault[,] the State must prove the following propositions: First, that the Defendant committed

an act of sexual penetration upon [C.H.J; and second, that the act was committed by the use of force or threat of force, and that [C.H.] did not consent to the act of sexual penetration; and third, that the Defendant displayed or threatened to use a dangerous weapon or any object fashioned or utilized in such a manner as to lead the victim under the circumstances reasonably to believe it to be a dangerous weapon.” Additionally, the court gave the jury an instruction defining a firearm as “any device *** which is designed to expel a projectile or projectiles by the action of an explosion, an expansion of gas or escape of gas.” The judge gave the jury four verdict forms, which stated that the defendant was: (1) guilty of criminal sexual assault; (2) not guilty of criminal sexual assault; (3) guilty of aggravated criminal sexual assault; and (4) not guilty of aggravated criminal sexual assault.

Additionally, the judge instructed the jurors that if they found the defendant guilty of aggravated criminal sexual assault, they also were to determine whether he committed the offense while armed with a firearm. Accordingly, the jurors were given two special verdict forms, which stated that the defendant: (1) was armed with a firearm; and (2) was not armed with a firearm. The jurors signed the verdict forms finding that the defendant: (1) was guilty of criminal sexual assault; (2) was guilty of aggravated criminal sexual assault; and (3) was not armed with a firearm.

The defendant filed an amended motion for a new trial, which the court denied. The court then sentenced the defendant only with regard to count II. The court also denied the defendant’s motion for reconsideration of the sentence. The defendant did not raise, in either of his posttrial motions, an objection to the court’s jury instruction for count II. The defendant appealed. II. ANALYSIS A. Jury Instruction The defendant contends that the court erred by giving the outdated jury instruction for count II, which did not state that the dangerous weapon was to be one other than a firearm.

The defendant acknowledges that he did not preserve this issue for appeal by both objecting at trial and by raising the question in a posttrial motion. Therefore, he asks us to review this issue for plain error. The plain error doctrine allows a reviewing court to consider an unpreserved error when either: (1) the evidence was closely balanced; or (2) the error was 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. Lewis, 234 Ill. 2d 32, 912 N.E.2d 1220 (2009).

In this case, the defendant was convicted and sentenced under

section 12—14(a)(1) of the Code, which states that a person commits aggravated criminal sexual assault if he commits criminal sexual assault while “display[ing], threatening] to use, or using] a dangerous weapon, other than a firearm, or any object fashioned or utilized in such a manner as to lead the victim under the circumstances reasonably to believe it to be a dangerous weapon.” 720 ILCS 5/12—14(a)(1) (West 2006). The record shows that the court gave the jury an instruction regarding the offense that did not include the phrase “other than a firearm.” Thus, the court erred in giving this improper instruction.

However, the evidence in this case was not closely balanced. The victim’s testimony concerning the assault, combined with the testimony of those who spoke with her after the incident, was not counterbalanced by the defendant’s testimony that the encounter was consensual. Furthermore, this error was not 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. Therefore, we hold that the trial court did not commit plain error by giving an improper jury instruction regarding count II. B.

Ineffective Assistance The defendant submits that his trial attorney provided ineffective assistance by failing to object to the jury instruction regarding count II. Ineffective assistance of counsel claims are analyzed under a two-prong test, in which the defendant must prove both that: (1) his trial attorney’s performance fell below an objective standard of reasonableness; and (2) this substandard performance was so prejudicial that there was a reasonable probability that the outcome of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S.

Ct. 2052 (1984); People v. Albanese, 104 Ill. 2d 504, 473 N.E.2d 1246 (1984). In the instant case, the performance of the defendant’s trial attorney fell below an objective standard of reasonableness by failing to object to the improper jury instruction for count II. However, because the evidence against the defendant was overwhelming, the attorney’s failure to object was not so prejudicial that there was a reasonable probability that the outcome of the trial would have been different. Consequently, we rule that the defendant’s trial counsel did not provide ineffective assistance. C.

Reasonable Doubt The defendant argues that the State failed to prove the elements of count II beyond a reasonable doubt. Specifically, he contends that the evidence did not show that the defendant displayed, threatened to use, or used a dangerous weapon other than a firearm. When a criminal defendant challenges the sufficiency of the evidence, a reviewing court’s inquiry concerns whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the State proved the elements of the offense beyond a reasonable doubt. People v.

Davison, 233 Ill. 2d 30, 906 N.E.2d 545 (2009). Again, we note that the statute in question says that a person commits aggravated criminal sexual assault if he commits criminal sexual assault while “displaying], threatening] to use, or using] a dangerous weapon, other than a firearm, or any object fashioned or utilized in such a manner as to lead the victim under the circumstances reasonably to believe it to be a dangerous weapon.” 720 ILCS 5/12— 14(a)(1) (West 2006). In the present case, the defendant appears to have misread the statute in question. Under

section 12—14(a)(1), there are two ways that a person may be found guilty of aggravated criminal sexual assault, which are separated by the disjunctive “or.” The first way is if the person displayed, threatened to use, or used a dangerous weapon, other than a firearm. The second way is if the person displayed, threatened to use, or used an object fashioned or utilized in such a manner as to lead the victim under the circumstances reasonably to believe it to be a dangerous weapon. This second way only requires that the victim reasonably believe that the object was a dangerous weapon.

The second way does not require that the victim reasonably believe that the object was a dangerous weapon, other than a firearm. See 720 ILCS 5/12—14(a)(1) (West 2006). In this case, after taking the evidence in the light most favorable to the prosecution, a rational jury could have found that the State proved the second set of circumstances under

section 12—14(a)(1) by which a person may be found guilty of committing aggravated criminal sexual assault. In the present case, a reasonable jury could have found that the defendant utilized an object, which looked like a handgun and made a sound like a handgun, in such a manner as to lead C.H., under the circumstances, reasonably to believe that it was a handgun, regardless of whether it was actually capable of firing a projectile.

Under this second way listed in the statute, the State was not required to prove either that the dangerous weapon was not a firearm or that the defendant led C.H. reasonably to believe that it was not a firearm. Therefore, we hold that the State did not fail to prove the elements of aggravated criminal sexual assault beyond a reasonable doubt. III. CONCLUSION For the foregoing reasons, we affirm the judgment of the Peoria County circuit court. Affirmed. CARTER, J., concurs.

For the sake of clarity, we observe that our citation, as always, is to the version of the subsection of the statute that was applicable at the time of the offense, rather than to the language employed by the State in its indictment.