2021 IL App (1st) 180065-U 

 FIRST DISTRICT,

FIRST DIVISION

 March 8, 2021 

No. 1-18-0065 

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 JUDICIAL DISTRICT

_____________________________________________________________________________ 

PEOPLE OF THE STATE OF ILLINOIS,

 Respondent-Appellee,

v. 

DARIUS KIMBROUGH, 

Petitioner-Appellant.

)

) 

) 

) 

) 

) 

) 

) 

)

Appeal from the

Circuit Court of

Cook County, Illinois.

No. 14 CR 11557

Honorable 

Stanley J. Sacks, 

Judge Presiding.

_____________________________________________________________________________ 

JUSTICE COGHLAN delivered the judgment of the court.

Justices Hyman and Pierce concurred in the judgment.

ORDER

¶ 1 Held: (1) Evidence was sufficient to convict defendant of predatory criminal sexual 

assault and grooming. (2) The trial court did not abuse its discretion in allowing 

State to introduce evidence of pornography found on defendant’s phone. (3) 

Prosecutor’s statement in closing argument that five-year-old victim was “quiet” 

and “shy” was fair comment on the evidence. (4) Defendant’s 15-year sentence for 

predatory criminal sexual assault was not excessive.

¶ 2 Defendant Darius Kimbrough was convicted of predatory criminal sexual assault and 

grooming of five-year-old M.G. On appeal, he argues that (1) the evidence was insufficient to 

convict him; (2) the trial court erred in allowing the jury to view screenshots of searches for 
No. 1-18-0065 

-2- 

pornography and stills of pornographic videos recovered from his cell phone; (3) the State made 

improper closing remarks; and (4) his 17-year sentence was excessive. For the reasons that 

follow, we affirm.

¶ 3 BACKGROUND

¶ 4 Darius spent the night of June 6, 2014, at the apartment of his brother James. James 

shared the apartment with his son (13-year-old J.K.), his girlfriend Gabriel, and Gabriel’s two 

daughters, 11-year-old D.G. and 5-year-old M.G. On June 7, M.G. told first J.K. and then her 

mother that Darius had shown her a video on his phone and then put his penis in her mouth. 

Darius surrendered to police on June 8, and the State charged him with predatory criminal sexual 

assault and grooming.

¶ 5 M.G., who was nine years old at the time of trial, was unable to identify Darius in court. 

She testified that in the months leading up to the incident, Darius came to visit a few times a 

week. He was sometimes mean to Gabriel, calling her names and making fun of her in front of 

James and his other brothers, Roy and Larnell. Gabriel denied this, testifying that she got along 

with Darius prior to the incident.

¶ 6 On the evening of June 6, 2014, Darius and Roy spent the night at James’ one-bedroom 

apartment. James and Gabriel slept in the bedroom, while M.G., J.K., and Roy slept in the living 

room. As for Darius, M.G. testified that he slept “by the dogs,” while J.K. recalled that he slept 

in the living room with them. M.G.’s sister was away at a friend’s house.

¶ 7 M.G. testified that early in the morning on June 7, she woke up because Darius’ alarm 

went off. Darius told M.G. to wake up, grabbed her wrist, and brought her to the kitchen. There, 

he showed her a video on his cell phone of “a man putting his penis in a girl’s mouth.” Darius 

told her “to do what the girl did in the video.” They went together to the bathroom, where Darius 
No. 1-18-0065 

-3- 

unzipped his pants and put his penis in M.G.’s mouth. M.G. bit down hard. Darius removed his 

penis, told her not to bite, and put it back in her mouth.

¶ 8 The incident ended when J.K. entered the bathroom. Darius zipped up his pants, pulled 

down his shirt, and ran out of the house. Outside on the porch, M.G. told J.K. “a little bit” of 

what happened.

¶ 9 On cross-examination, M.G. testified that after she was woken up by Darius’ alarm, she 

got up to use the bathroom, which was on the other side of the kitchen. Darius was sitting at the 

kitchen table, watching something on his cell phone. M.G. walked up behind Darius, stood next 

to him, and saw what was on his phone screen. When Darius noticed her, he put his phone down 

on the table. “[J]ust five seconds or so” later, M.G. told J.K. that she saw a video of a woman 

sucking “something.” She did not specify what the “something” was because she did not know.

¶ 10 On additional cross-examination, M.G. reiterated her testimony that she was in the 

bathroom with Darius, “something” was in her mouth, and she bit down on it hard.

¶ 11 J.K. testified that he woke up in the middle of the night and saw Darius wake M.G. and 

bring her to the kitchen. There, Darius held his cell phone horizontally in his hand while M.G. 

stood next to him. After watching them for a few minutes, J.K. got up and walked through the 

kitchen to the porch where the dogs were. As he walked by Darius, he noticed Darius quickly 

pulling down his shirt.

¶ 12 J.K. stayed out on the porch for around six minutes, and then M.G. came out to talk to 

him. J.K. asked her what happened. M.G. told him that Darius showed her a video of a woman 

doing “something” to a man, though she did not specify what. M.G. also said that in the 

bathroom, Darius made her suck “something long and big and fat.” Darius told her, “Don’t bite 

it,” and he also said, “Don’t tell nobody; keep it a secret.” J.K. stated that M.G. never used the 
No. 1-18-0065 

-4- 

term “private parts,” explaining that her mother did not allow her to use those words. J.K. further 

testified that, after the incident, Darius remained at the apartment until “around when Gabriel and 

[M.G.] were *** coming back.” 

¶ 13 On cross-examination, J.K. acknowledged that at a prior hearing on May 18, 2016, he 

testified that during their meeting on the porch, M.G. told him nothing about any part of Darius 

touching any part of her.

¶ 14 Gabriel testified that later in the morning of June 7, she took M.G. shopping. M.G. did 

not say anything about Darius during their shopping trip. That afternoon, after the two of them 

had returned home, J.K. relayed to Gabriel what M.G. said to him. Gabriel then spoke to M.G. 

Initially, J.K. was present, but M.G. appeared nervous and was reluctant to speak, so Gabriel 

asked J.K. to leave. Gabriel explained that M.G. “shuts down when she thinks she’s in trouble or 

when she’s nervous and people [are] around.” 

¶ 15 After J.K. left, Gabriel reassured M.G. that whatever she said, she was not in trouble. 

M.G. then told Gabriel that Darius woke her up, brought her to the kitchen, and showed her a 

video on his cell phone. After that, the two of them went to the bathroom. M.G. demonstrated to 

Gabriel that they were standing a couple feet apart with the bathroom door open. M.G. then said 

that Darius “put his private parts in her mouth.” Gabriel asked, “Did you scream or yell or bite it 

or something like that? I would have bit it or screamed or something.” M.G. replied, “I did.” 

Gabriel said, “You did what?” and M.G. said, “Bite it.” She told Gabriel that she bit it “three 

times or something like that.” Darius told her not to bite it. Darius also told her, “You’re not 

going to say anything, are you? I’mma give you some candy.” 

¶ 16 That evening, there was a family meeting with James, Darius, Larnell, J.K., and Gabriel. 

At the meeting, M.G. was asked “who had done what they shouldn’t have done.” M.G. testified 
No. 1-18-0065 

-5- 

that she initially answered “B.J.,” but pointed at Darius after Gabriel whispered in her ear.1 After 

the family meeting, Larnell and James “beat Darius up.” 

¶ 17 The next day, June 8, Gabriel brought M.G. and J.K. to the Children’s Advocacy Center 

to speak with Lauren Glazer, a forensic interviewer.2 A video of M.G.’s interview was shown to 

the jury. In the interview, M.G. acknowledged that “something” happened to her, but she did not 

provide any details, and she said she did not remember what she told J.K. When asked about 

Darius, she described him as “Dad’s brother” and a “nice guy.” Glazer asked if Darius did 

something to her that he should not have done. After a long silence, M.G. made an ambiguous 

head movement which Glazer interpreted as agreement, but M.G. would not speak further on the 

subject. Detective Jose Castaneda, who watched the interview through a one-way window, 

testified that M.G. “seemed reluctant *** to talk about the incident.” 

¶ 18 After the interview ended, M.G. went to a CAC playroom where she colored a picture for 

her sister. She then brought the picture to Gabriel. On the back of the picture, there was a note 

which read: “a grl nam [M.G.] Dad had a bruthr he wus nostey too the grl He put hes privet en hr 

moth” [sic]. At trial, M.G. initially testified that she did not recognize the picture, but she then 

stated that she was the one who colored it.

¶ 19 Gabriel testified that she forwarded the picture to CAC staff. The next day, she brought 

M.G. back to the CAC for a second interview with Glazer. In that interview, which was also 

shown to the jury, Glazer showed M.G. the note written on the picture. M.G. said that she wrote 

it and it was about what Darius did to her. The incident occurred when she went to use the 

1 Gabriel testified that she never whispered in M.G.’s ear during the meeting.

2 Glazer no longer worked at the CAC at the time of trial and did not testify.
No. 1-18-0065 

-6- 

bathroom. Darius entered the bathroom after her and put his “private” in her mouth. Then J.K.

also entered the bathroom, and Darius “got scared” and put his private back in his pants.

¶ 20 M.G. also told Glazer during the second interview that, prior to the bathroom incident, 

Darius showed her a video on his phone in which a white woman was sucking the “private” of “a 

boy.” J.K. was outside when this was happening.

¶ 21 Detective James Browne conducted a forensic analysis of Darius’ cell phone. As part of 

Browne’s testimony, the State displayed several screenshots of Darius’ web history on XVideos, 

a porn site. As shown in the screenshots, his history included a search for “deepthroating” and 

visits to pages titled “blowjob videos of the day,” “After Work Head,” and “BBC Gag Training 

Pt2 (College Ho),” with BBC standing for “big black cock.” The State also showed seven 

screenshots from porn videos found on Darius’ phone, which Browne described to the jury. One 

of the screenshots depicted a white woman performing oral sex on an adult male. The 

timestamps on the porn site visits and videos were from the afternoon of June 7, 2014.

¶ 22 Darius was the sole witness in his own defense. He testified that on June 6, 2014, he 

spent the night at James’ apartment. He typically went there two or three times a week. He 

further testified that he was not on good terms with Gabriel because a few months earlier, he saw 

her performing oral sex on another man at a party and tried to warn James about it.

¶ 23 That night, Darius slept in the living room with Roy, J.K., and M.G. At around 7 a.m., 

James came to tell Roy that it was time to get up and go to work. That woke everyone up. 

Darius, who did not have work that day, went to the kitchen to play an Xbox game. After playing 

for a while, he picked up his cell phone and started watching a porn video he had previously 

downloaded. According to Darius, the video showed a black woman and a black man having 

penis-in-vagina sex; oral sex was not depicted.
No. 1-18-0065 

-7- 

¶ 24 Shortly after he started watching the video, Darius heard footsteps behind him. He turned 

around and saw M.G. standing around four to five feet away. He immediately turned off the 

video and placed his phone facedown on the table in front of him. He did not deny that M.G. 

might have seen part of the video, but he stated that he did not invite her to watch it up close. He 

further stated that he did not take M.G. to the bathroom, he did not tell her to do what she saw in 

the video, he did not take his penis out, and he did not touch M.G., nor did she touch him. 

Instead, he went back to playing on the Xbox. Around half an hour later, Gabriel and M.G. left 

the house. Darius stayed until around 11 a.m., when he left to go to Larnall’s house.

¶ 25 At around 11:30 p.m. that night, Darius received a phone call from James, after which he 

and Larnall went to James’ apartment. Also present were James, J.K., Gabriel, and M.G., who 

was sleeping. Gabriel woke M.G. up and asked, “Who did it to you?” M.G. said, “B.J. did it.” 

Gabriel whispered something in M.G.’s ear while pointing at Darius. M.G. then pointed at 

Darius.

¶ 26 Larnall and James got in a fight with Darius, giving him a fractured ear and swollen eye. 

Larnall then told Darius to get out of the house. Darius went to his girlfriend’s house, which is 

where police found and arrested him the following day. Following his arrest, he was interviewed 

by Detective Castaneda. Darius admitted saying that he watched a porn video about “getting 

some head,” but he denied saying that he showed M.G. the video. In rebuttal, the State played a 

clip of the interview in which Darius admitted showing M.G. the video. Detective Castaneda 

confirmed that the clip was true and accurate.

¶ 27 During closing argument, the State argued that in the videotaped interviews with M.G., 

“[y]ou got to see her demeanor, her behavior. You saw that she was shy, a nervous five-year-old 
No. 1-18-0065 

-8- 

little girl. Those specific traits are exactly why this defendant targeted five-year-old [M.G.]. She 

was shy. She was quiet and she was soft-spoken. He thought that she would keep his secret.” 

¶ 28 The State later reiterated that Darius “targeted” M.G. because “[s]he was quiet, shy and 

soft spoken and he thought that she would keep that secret that he asked her to, but she didn’t.” 

Similarly, in rebuttal argument, the State argued: “He picked her for a reason. He picked her 

because she’s shy and she’s quiet and she’s reluctant to tell secrets and she’s five.” 

¶ 29 The jury found Darius guilty of one count of predatory criminal sexual assault3 and one 

count of grooming. Darius was sentenced to 15 years’ imprisonment for predatory criminal 

sexual assault and 2 years’ imprisonment for grooming, to be served consecutively.

¶ 30 ANALYSIS

¶ 31 Darius argues that his conviction must be reversed because (1) the evidence was 

insufficient to convict him; (2) the trial court erred in allowing the State to show irrelevant and 

prejudicial screenshots of porn-related searches and pornographic material from his cell phone; 

and (3) the State said during closing argument that Darius targeted M.G. because she was “quiet” 

and “shy,” an assertion with no basis in the record. Darius further argues that his sentence of 15 

years for predatory criminal sexual assault is excessive.

¶ 32 Sufficiency of the Evidence

¶ 33 Darius first argues that the evidence was insufficient to prove him guilty beyond a 

reasonable doubt, since M.G.’s statements were inconsistent with each other and with J.K.’s 

testimony, and no physical evidence corroborated her allegations. 

3 The State charged Darius with two counts of predatory criminal sexual assault on the theory that 

he committed two separate assaults when he put his penis in M.G.’s mouth, removed it, and then put it 

back in. The jury found him not guilty on the second count.
No. 1-18-0065 

-9- 

¶ 34 In reviewing the sufficiency of the evidence, we must determine “ ‘whether, after 

viewing the evidence in the light most favorable to the prosecution, any rational trier of fact 

could have found the essential elements of the crime beyond a reasonable doubt.’ “ (Emphasis in 

original.) People v. Jackson, 232 Ill. 2d 246, 280 (2009) (quoting Jackson v. Virginia, 443 U.S. 

307, 319 (1979)). The jury bears responsibility for resolving conflicts in testimony, weighing 

evidence, and drawing reasonable inferences from the evidence, and we will not substitute our 

judgment on these matters. People v. Siguenza-Brito, 235 Ill. 2d 213, 224-25 (2009). 

“[C]ognizant that conflicting testimony is to be resolved by the trier of fact” (People v. Westfield, 

207 Ill. App. 3d 772, 777 (1990)), we do not find that “the record evidence compels the 

conclusion that no reasonable person could accept [M.G.’s testimony] beyond a reasonable 

doubt.” (Emphasis added.) People v. Cunningham, 212 Ill. 2d 274, 280 (2004).

¶ 35 Darius argues that M.G.’s testimony on direct examination differed considerably from 

her testimony on cross-examination, in which she said that she walked up behind Darius and saw 

him watching a video on his cell phone, and when he noticed her, he put his cell phone down on 

the table. Notably, this version of events is largely consistent with Darius’ own testimony.

¶ 36 Darius also points out that M.G.’s direct testimony is inconsistent with J.K.’s testimony. 

According to M.G., J.K. entered the bathroom while Darius was making her suck his penis. 

Upon being caught in the act, Darius immediately ran out of the house. By contrast, according to 

J.K., he saw M.G. with Darius in the kitchen, apparently watching something on Darius’ phone. 

J.K. then went out on the porch and stayed there until M.G. came out to talk to him. He did not 

claim to have entered the bathroom or witnessed the assault. He further testified that Darius 

remained at the house until later that day.
No. 1-18-0065 

-10- 

¶ 37 Despite these inconsistencies, we do not find that they render the evidence insufficient for 

“any rational trier of fact” to find Darius guilty beyond a reasonable doubt. (Emphasis in 

original; internal quotation marks omitted.) Jackson, 232 Ill. 2d at 280. M.G.’s testimony on 

direct examination was consistent with her written statement at the CAC, as well as her 

description of events in her second interview with Glazer. Even in her cross-examination, she 

maintained that Darius put “something” in her mouth which she bit. A jury could reasonably 

conclude that M.G., a young child, might have been confused as to some collateral details of the 

incident while still able to credibly testify that she was assaulted.

¶ 38 Darius also argues that M.G. is not credible because her mother had a grudge against him 

and had the opportunity to influence M.G.’s statements. But Gabriel asserted in court that she 

was on good terms with Darius before the incident, and the jury was entitled to believe that 

testimony. Gabriel further claimed she did not whisper in M.G.’s ear during the family meeting 

at which M.G. identified Darius. Moreover, it is well established that “[a] reviewing court will 

not reverse a conviction simply because *** the defendant claims that a witness was not 

credible.” Siguenza-Brito, 235 Ill. 2d at 228. The jury had an opportunity to observe M.G.’s 

testimony and her videotaped interview with Glazer, at which her mother was not present. They 

found her testimony credible, and it is not our role to disturb that determination on appeal. Id. at 

224-25. 

¶ 39 Darius next asserts that it is not plausible that he would sexually assault M.G. when so 

many other people were in the apartment. He overstates the implausibility of this scenario. 

According to Darius, when he started watching the porn video, Roy had already left to go to 

work, and James and Gabriel were in their bedroom with the door shut. That left only M.G. and 

J.K. J.K. testified that he got up and exited the apartment while Darius and M.G. were together in 
No. 1-18-0065 

-11- 

the kitchen. Thus, Darius and M.G. were alone in the main living area of the apartment. Viewing 

this evidence in the light most favorable to the State, we do not find an assault so implausible as 

to create a reasonable doubt as to Darius’ guilt.

¶ 40 People v. Judge, 221 Ill. App. 3d 753, 761 (1991), which Darius cites on this issue, is 

distinguishable. In Judge, the seven-year-old complainant and her sister were watching cartoons 

in the living room of their trailer home when defendant (who rented a room in their house) 

allegedly grabbed her, dragged her across the floor, threw her onto his bed, and sexually 

assaulted her, “even though her father was in the trailer home at this time.” Id. The court was 

concerned that “this alleged activity did not appear to alarm or disturb her younger sister who 

was awake and with complainant at the time” and that their father was apparently unaware of the 

assault. Id. Additionally, no “noticeable marks or bruises” were found on the complainant’s body

despite the violent nature of the attack. Id. Finally, “the original mention of any abuse was made 

in response to repeated questioning by [the complainant’s] mother,” who had made a prior 

unfounded charge of sexual assault of another child. Id. Under these facts, the Judge court found 

that the complainant’s testimony did not establish defendant’s guilt beyond a reasonable doubt. 

Id.

¶ 41 Here, in contrast to Judge, there were no witnesses to the actual assault, which was silent 

in nature. Judge is therefore inapposite.

¶ 42 Darius also argues that M.G.’s testimony was uncorroborated by physical evidence. But 

as the State points out, the grooming charge was corroborated by forensic examination of Darius’ 

phone, which revealed a video of a white woman performing oral sex on an adult male. As for 

the alleged assault, because there was no violence or ejaculation involved, it is unsurprising that 

there would be no physical evidence. More importantly, “it is well settled that a lack of physical 
No. 1-18-0065 

-12- 

evidence does not establish that a sexual assault did not occur.” People v. Delgado, 376 Ill. App. 

3d 307, 311 (2007) (evidence was sufficient to convict defendant of sexual assault despite 

inconsistencies in complainant’s testimony and lack of corroborating physical evidence); see also 

People v. DuPree, 161 Ill. App. 3d 951, 961 (1987) (physical evidence is not required to prove 

the commission of a sex crime).

¶ 43 In sum, “[d]efendant’s argument regarding the sufficiency of the evidence is ultimately 

unpersuasive because *** the weaknesses in the evidence that defendant cites on appeal were all 

presented to, and rejected by, the jury.” People v. Milka, 211 Ill. 2d 150, 178 (2004). Although 

we acknowledge inconsistencies in the testimony of the witnesses, “[i]t is not the function of this 

court to retry the defendant” (People v. McCarter, 2011 IL App (1st) 092864, ¶ 21). We find that 

the evidence was sufficient to sustain Darius’ convictions for predatory criminal sexual assault 

and grooming beyond a reasonable doubt. 

¶ 44 Screenshots from Darius’ Phone 

¶ 45 Darius next argues that the trial court erred in allowing the State to show screenshots of 

porn-related searches and screenshots of porn videos from his cell phone, because they were both 

irrelevant and highly prejudicial.

¶ 46 Evidence is relevant when it (1) renders a matter of consequence more or less probable or 

(2) tends to prove a fact in controversy. People v. Lynn, 388 Ill. App. 3d 272, 280 (2009). When 

evidence is relevant and otherwise admissible, it should not be excluded merely because it may 

also tend to prejudice the accused. People v. Hale, 2012 IL App (1st) 103537, ¶ 35 (citing People 

v. Patterson, 154 Ill. 2d 414, 458 (1992)). Rather, the trial court should only exclude such 

evidence “if its prejudicial effect substantially outweighs its probative value.” Id. The question of 
No. 1-18-0065 

-13- 

whether evidence is relevant and admissible is reserved to the trial court’s sound discretion and 

will not be reversed absent an abuse of that discretion. Lynn, 388 Ill. App. 3d at 280.

¶ 47 People v. Pelo, 404 Ill. App. 3d 839 (2010), is instructive here. In Pelo, the State charged 

defendant with “a series of crimes involving the stalking, intimidation, home invasion, 

residential burglary, unlawful restraint, and aggravated criminal sexual assault of five women.” 

Id. at 841. At trial, the State introduced extensive exhibits of pornography recovered from 

defendant’s home, including 23 separate poster boards of images, gallery names, and search 

results, as well as two 30-second videos of various acts being performed on bound women. The 

Pelo court held that the “vast majority” of this pornography was relevant and properly admitted, 

since it “involved forced sex, rape, bondage, the use of foreign objects on women, and female 

masturbation,” all of which were emulated by the perpetrator of the crimes charged. Id. at 864-

65. The probative value of these exhibits was “very high” because it established “a backdrop of 

peculiar sexual interests by defendant” consistent with that of the perpetrator. Id. at 868. 

However, “a few” of the images (e.g., those depicting incest, caning, and a gynecological exam) 

were irrelevant to the State’s theory of the case and should not have been admitted. Id. at 862, 

865. 

¶ 48 In this case, the State’s screenshot evidence was directly relevant to the charge of 

grooming, which occurs when a defendant knowingly uses any device capable of electronic data 

storage or transmission to solicit a child to commit a sex offense. 720 ILCS 5/11-25 (West 2014). 

M.G. alleged that Darius showed her a cell phone video of “a man putting his penis in a girl’s 

mouth” before telling her “to do what the girl did in the video.” Thus, it was clearly relevant that 

a video depicting oral sex was recovered from Darius’ cell phone.
No. 1-18-0065 

-14- 

¶ 49 Additionally, as in Pelo, establishing a backdrop that Darius’ sexual interests included 

oral sex was relevant because this assault involved oral sex. Darius points out that his porn 

videos all involved consenting adults rather than children. Notwithstanding this fact, we find that 

Darius’ interest in oral sex rendered it more probable that he would commit a sexual assault 

involving oral sex than if he had no such demonstrated interest.

¶ 50 Darius additionally contends that the evidence introduced by the State on this point was 

excessive. He argues that a single screenshot from the oral sex video would have sufficed to 

make the State’s point. Instead, the State showed seven screenshots from various porn videos 

found on his phone, as well as multiple screenshots of his search history on a porn website.

¶ 51 We do not find that the trial court abused its discretion in allowing the State to show 

multiple screenshots of Darius’ search history and stills from pornographic videos. Initially, we 

note that the State’s evidence in this regard was far less than the voluminous pornographic 

exhibits introduced in Pelo, the “vast majority” of which were properly admitted. Id. at 864. 

More importantly, the State’s evidence was properly tailored to the crimes charged. Instead of 

playing the videos for the jury, the State merely showed a few relevant screenshots; additionally, 

the evidence was limited to searches and videos with a timestamp of June 7, 2014, the date of the 

assault. Accordingly, we find no abuse of discretion in the trial court’s admission of pornography 

recovered from Darius’ phone. 

¶ 52 Closing Argument

¶ 53 Darius next argues that he was deprived of a fair trial because the State said during 

closing argument that he “targeted” M.G. because she was “quiet” and “shy,” an assertion which 

he claims has no basis in the record.
No. 1-18-0065 

-15- 

¶ 54 Darius acknowledges he has forfeited this issue by failing to object or raise the issue in a 

posttrial motion. People v. Enoch, 122 Ill. 2d 176, 186 (1988). He nevertheless argues that we 

may consider the issue under the plain error doctrine, which allows us to review “clear and 

obvious” unpreserved errors when either (1) the evidence is so closely balanced that the error 

threatened to tip the scales against the defendant, or (2) the error “is so serious that it affected the 

fairness of the defendant’s trial and challenged the integrity of the judicial process.” People v. 

Piatkowski, 225 Ill. 2d 551, 565 (2007). 

¶ 55 We first consider whether any error occurred. People v. Johnson, 218 Ill. 2d 125, 139 

(2005) (“Clearly, there can be no plain error if there is no error”). Darius first argues that there 

was no basis for the prosecutor’s assertion that M.G. was “quiet” and “shy.” We disagree. 

Gabriel testified that M.G. was reluctant to talk about the incident, explaining that she “shuts 

down when she thinks she’s in trouble or when she’s nervous and people [are] around.” 

Additionally, the jury was shown the videotapes of M.G.’s CAC interviews and was able to 

observe her demeanor firsthand. Particularly in the first interview, M.G. was extremely 

withdrawn, giving single-word answers to some questions and flat-out refusing to answer most 

others. M.G. explicitly testified at trial that she was feeling “[s]hy” during that interview. In light 

of these facts, the State’s characterization of M.G. as “quiet” and “shy” was a fair comment on 

the evidence.

¶ 56 Darius next argues that it was error to state that he “targeted” M.G. because it implies a 

level of premeditation and planning that is not supported by the record. We do not find any such 

implication in the State’s argument. If the State’s evidence is believed, Darius did, in fact, target 

M.G. by bringing her to the kitchen, showing her a porn video depicting oral sex, and then 

bringing her to the bathroom and telling her to imitate the actions she saw in the video. 
No. 1-18-0065 

-16- 

Regardless of whether any preplanning was involved, Darius singled M.G. out as the victim of 

his assault. Accordingly, we find no error in the State’s closing argument.

¶ 57 Excessive Sentence

¶ 58 Darius finally argues that his sentence of 15 years for predatory criminal sexual assault is 

excessive. He further argues that the trial court erred in considering M.G.’s age as a factor in 

aggravation, since it was a factor inherent in the offense.

¶ 59 It is well established that the trial court has broad discretionary powers in imposing a 

sentence. People v. Alexander, 239 Ill. 2d 205, 212 (2010). Because the trial court has the 

opportunity to observe the defendant and weigh such factors as his credibility, demeanor, and 

mentality, we give great deference to the trial court’s judgment and will not reduce a defendant’s 

sentence absent an abuse of discretion. Id. at 212-13. We may not substitute our own judgment 

for that of the trial court simply because we would have weighed the sentencing factors 

differently. Id. at 214-15. However, we consider de novo the issue of whether the trial court 

considered an improper factor in sentencing. People v. Chaney, 379 Ill. App. 3d 524, 527 (2008).

¶ 60 Darius’ sentence of 15 years is on the lower end of the 6-to-60-year range authorized by 

statute for predatory criminal sexual assault. 720 ILCS 5/11-1.40 (a)(1), (b)(1) (West 2016). 

Darius nevertheless argues that the trial court failed to give adequate weight to the factors in 

mitigation, namely, his lack of violent criminal history, his consistent employment, and the onetime nature of the offense. But it is well established that “[t]he most important sentencing factor 

is the seriousness of the offense, and the court need not give greater weight to rehabilitation or 

mitigating factors than to the severity of the offense.” People v. Charles, 2018 IL App (1st) 

153625, ¶ 45; see also Alexander, 239 Ill. 2d at 214-15 (appellate court acted improperly in 
No. 1-18-0065 

-17- 

reducing defendant’s sentence based on its finding that the trial court “gave undue weight to 

factors in aggravation”).

¶ 61 Here, the trial court explicitly considered Darius’ prior criminal history, noting that he 

had been sentenced to probation and then boot camp for a drug-related offense, but had no 

convictions in the past 11 years. The court also considered the facts of the case, as well as victim 

impact letters from M.G. and her mother. In balancing these factors, the court declined to impose 

a “low sentence,” but it also declined to impose a “stiffer sentence” where Darius “would never 

see the street again.” We find no abuse of discretion in the court’s judgment in this regard.

¶ 62 Finally, Darius argues that the trial court improperly considered M.G.’s age as a factor in 

aggravation. A trial court may not consider a factor implicit in the underlying offense as an 

aggravating factor in sentencing. People v. Abdelhadi, 2012 IL App (2d) 111053, ¶ 9. However, 

the court may properly consider the nature and circumstances of the offense, including “the 

nature and extent of each element of the offense as committed by the defendant.” People v. 

Brewer, 2013 IL App (1st) 072821, ¶ 55. “The rule that a court may not consider a factor 

inherent in the offense is not meant to be applied rigidly, because sound public policy dictates 

that a sentence be varied in accordance with the circumstances of the offense.” (Internal 

quotation marks omitted.) People v. Spicer, 379 Ill. App. 3d 441, 468 (2007).

¶ 63 Thus, a sentencing court may consider “whether the victim is particularly young” even 

though the victim’s age is an element of the sexual assault count for which defendant was 

convicted. (Emphasis omitted.) People v. Thurmond, 317 Ill. App. 3d 1133, 1144-45 (2000). For 

instance, Thurmond held that in sentencing a defendant for criminal sexual assault, the trial court 

did not err by recognizing that the 12-year-old victim was particularly young, since “there is a 

difference between being under age 18 and being significantly under age 18.” Id.
No. 1-18-0065 

-18- 

¶ 64 Here, Darius was convicted of predatory criminal sexual assault because he was at least 

17 years old and caused his sexual organ to touch a victim under 13 years old for purposes of 

sexual gratification or arousal. 720 ILCS 5/11-1.40 (West 2016). At sentencing, the trial court 

made multiple comments regarding M.G.’s age, stating: “I think to myself, what in the world can 

a guy see in a girl five years old, performing sex on a little girl? What in the world can a guy see 

in doing that?” The court further stated: “Having a young girl, age five. Every time I think about 

that, it makes me shake my head in wonder. A little girl age 5 do[ing] oral sex on a 25-year-old 

man. What in the world were you thinking about?” 

¶ 65 As in Thurmond, we do not find the trial court’s comments to be improper. Although 

predatory criminal sexual assault will, by definition, always involve a victim under 13, there is a 

difference between being under 13 and being significantly under 13. The fact that M.G. was only 

five years old was part of the nature and circumstances of Darius’ particular offense, and, as 

such, the trial court was entitled to take it into account when fashioning sentence.

¶ 66 CONCLUSION

¶ 67 For the foregoing reasons, we affirm Darius’ convictions and sentences.

¶ 68 Affirmed.