## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Peters , 2011 IL App (1st) 092839

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. J ERRY PETERS , Def

endant- Appellant.

District & N o. First District, F irst Division Docke t No. 1-09-2839

Filed August 22, 2011

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Def endant’ s convictions for predatory cr i minal sexual assault and criminal sexual assault and his sentenc e to natura l life wer e upheld over his contentions that the trial court violated Supre me Court Rule 431(b) and that his sentenc e violated the proportionate penalties clause
, but the mitti mus was cor

rec ted to acc urate ly

ref lect his convictions.

Dec ision Under Review Appea l from the Circuit Court of Cook County
, No. 08-CR-16 5 9 0 ; the Hon. J ames B . L inn, J udg e, pre siding.

J udg ment Affir med; mitti mus corre cted.Counsel on

Appea l Stephen L Gentry
, of State Appellate Def ender ’s Offic e, of Chicag o, for appellant.

Anita M. Alvare z, State’s Attorney
, of Chicag o (Alan J

. Spellberg
, J on Walters, and Anne L

. Mag ats, Assistant State ’s At t o rney s, of counsel), for the People

.

Panel J USTI CE ROCHFORD delivere d the j u d g ment of the court, with opinion. Presiding J ustice Hall an d J ustice Hoffma n concur red in the judgme nt and opinion.

OP INION

¶ 1 Def

endant, J err

y Peters, appea ls his c onvictions of preda tory criminal sexual a ssault of

a child and criminal sexual assault and his sentenc e of natura l life imprisonment. Def endant contends: (1) the circ uit court violated I llinois Supreme Court Rule 431(b) (ef f. May 1, 2007) by failing to ask the potential jurors during voir dire whether they understood and acc epted the principles set forth in People v . Zehr , 103 I ll. 2d 472 (1984); (2) his mandatory natura l life s en t en ce violated the proportionate penalties clause ; and (3) his mitti mus should be

corr ecte d to acc urate ly ref lect the counts of which he was convicted. We aff irm defe ndant’s convictions and sente nce a nd corr ect the mittimus. ¶ 2 Def

endant was charg ed with three counts of predatory criminal sexual assault of a child

an d t hree counts of criminal sexual assault. The predatory criminal sexual assault charg es al l eged that, on or about Marc h 1, 2001, through August 5, 2003, defe ndant, who wa s 1 7 year s of ag e or over, knowing ly committed a n act of sexual pe netration upon J .J
., who was under 13 year s of ag e, by making contac t be tween: his penis and J .J .’s vag ina (count I ); his penis and J .J .’s anus (count I I ); and his mouth and J

. J

. ’s v agi na (count I I I ). The criminal sexual assault charg es alleg ed that, on or about August 6, 2003, through Marc h 25, 20 0 4, defe ndant knowing ly committed an act of sexual penetr ation upon his stepdaughter J .J
., who

was under 18 year s of ag e, when he made contac t betwee n: his penis and J .J .’s vag ina (count IV); his penis and J.J .’s anus (c ount V); and his mouth and J .J .’s vag ina (c ount VI ). ¶ 3 During jury selec t i o n , the court advised the venire of “certa in fundame ntal principles” that “apply to this trial like they ’ve applied to ever y other trial in the history of our country .” First, the court advised the venire that “a criminal trial beg ins w ith the person ac cused of a crime pr esumed to be innoc ent.” Thecourt fur ther e x plained: “This is how a criminal trial starts. Whoever walks in acc used of a crime walks in the court presumed to be innocent. We don’t take the position, well, if he’s acc used, he

-2-must have done something wrong or else they wouldn’t be held for trial. They don’t take the position, somebody did something wrong or else there w ouldn’t be a trial. An ac cused be g ins procee dings in c ourt presume d to be innocent. I s there a ny body here who has a problem with that most fundame ntal proposition of Americ an justice, that when a criminal trial starts, the acc used is presumed to be innocent? I f you have a proble m with that, please ra ise your hand. N o hands ar e ra ised.” ¶ 4 The court then explained that a person become s acc used of a crime when the g overnme nt bring s formal charg es ag ainst him by filing a piece of paper listi ng those charg es. The court stated t hat t he fact t he paper was filed does not nece ssarily mean de fenda

nt did something wrong

. Then the court asked, “[I ]s there any body here who would hold it ag ainst the acc used simply beca

use som eone in the gover nment filed a piece of paper in cour t indicating what the forma l char g es ar e? I f you have fee lings like that, please raise your hand. N o hands ar e raised.” ¶ 5 The c ourt furthe r explained:

“The only way someone can be guilty of a crime is if the gove rnment who brought the charg es aga inst the acc used is able to prove the acc used guilty beyond a
rea sonable doubt. *** The g overnme nt has the burden of proof. They have to prove the case beyond a rea sonable doubt. You don’t guess somebody guilty

. You d o n ’t make a hunch they ’re guilty

. You don’t think they ’re guilty

. The only way you can be guil t y is if the g overnme nt brought the charg e and proved guilt beyond a
rea sonable doubt. Any

body have a problem with that proposition? The only way you
can be guilty is if the g overnme nt [t hat] bro u g ht the case can prove guilt beyond a
rea sonable doubt. Do you have a problem with that, please raise your hand? No hands

are raised.” ¶ 6 Finally , the cour t discussed one “ last proposition”: “In a criminal trial, the person acc used of a cr i m e d o es not have to prove their innocenc e. In a criminal trial, the burden of proof is on the g overnme nt, they have to prove guilt beyond a reasonable doubt. An accused doe sn’t have to pr ove any thing
at all. An acc used does not have to testify

. It is their perf ect right not to testify

. They don’t have to call any witnesses on their own behalf

. It is their perf

ect right not to call witnesses on their own behalf

. Hy pothetically speaking
, there can be a criminal trial. The g overnme nt may call a hundred witnesses ag ainst the acc used. The acc used, which is their perf

ect right, chooses not to testify
, and which is also thei r ri gh t, chooses not to call any witnesses on their own behalf

. After hearing from a hundred people on one side, no people on the other, there can be a rea sonable doubt the jury find [ sic ] as to whether the g overnme nt has indeed proven their case as required. Wit h that said, is there any body here who would hold it ag ainst the ac cused if the y did not testify
, which is their perf ect right, or did not call any witnesses on their own b eh al f, which is their right? Any body here who fee ls the acc used has som e responsibility in a cr iminal case to prove their innoce nce? I f y ou have fee lings li ke that, please raise your hands. No ha nds are raised. O kay .” ¶ 7 The court also individually asked eac h venire person who was selec ted for the jury if he

-3-or she would hold it ag ainst defe ndant if he did not testify

. Eac h person selec ted replied that

he or she would not. ¶ 8 At trial, J .J

. testified she was 10 year s old in 2001 and lived with her mother, uncle, a nd brother. H er mother

was dating defenda

nt at t hat t ime, and he also had be en living in their home for two or

three year s. In Marc h 2001, J .J

. came home from sc hool at approximately 3:20 p.m. Def

endant was home, and he asked J .J

. to come into the bedroom he share d with her mother. De fe n d an t asked J .J

. to sit on the bed and take off her clothes. J .J

. did so. Def endant took off his clothes and told J .J

. to lie down. Def endant climbed on top of J .J
., applied baby oil to her vag inal are a, and i n s erted his penis into her vag ina. After he was finished, defe ndant told J .J

. not to tell anyone or else she would “g o to DCFS” and never see her mother ag ain. Defenda nt also threatened to hurt her mother if J .J

. told anyone what he had done. One wee k later, defe ndant ag ain asked J .J

. to come i n t o h i s ro o m, wher e he inserted his penis into her vag ina. Thi s continued to happen two t o t h re e t i m es a week for three year s. J .J

. testified she saw “cum” come out of defe ndant’s penis on the occa sions when he inserted it into her vag ina. J .J

. testified defe ndant also would place his mouth on her vag ina and move his tongue back and forth. Def endant also tried to put his penis inside her mouth, but he was unable to do so beca use she kept moving and he eventua lly g rew tired of fighting he r. ¶ 9 J .J

. testified defe ndant marrie d her mother in September 2001. Prior to the marria g e, J.J

. never told her mother about what defe ndant was doing beca use she was too afr aid. J .J

. wrote abou t t h e i n ci d en t s in a diary and left it out in the hope that her brother would rea d it and

come to her aid. Instead, defe ndant discovere d the diary and ripped it up. Then he called her into his room, told he r not to write about what he had be en doingto her, a nd told he r to lie down and take off all her clothes. He inser ted his penis into her vag ina, then he told her to turn over and he inserted his penis into her anus. J .J

. subsequen t l y t o ld her best friend, Adrienne , about what de fenda nt had bee n doing to he r. ¶ 10 J .J

. testified that, on Marc h 25, 2004, she came home from school and defe ndant asked her to come into his room “like ever y other day .” Def

endant told her to lie down and take off al l h er clot hes, afte r which he inserted his penis into her vag ina. Def endant later left and picked up her mother from work in order to g o bowling. After defe ndant left, J .J .’s brother, K.J
., called her and she told him that defe ndant had been “messing ” with her. K.J

. drove over and picked her up and then dr ove to the bowlingalley
, wher e they saw defe ndant and their mother. K.J

. beg an scre aming and cursing at defe ndant. Def endant said nothing in response

. J

. J

. left the bowling alley with her mother and K.J

. and went to the hospital wh er e s h e underw ent a phy sical examination. She also spoke with police while at the hospital. ¶ 11 K.J

. testified that, on Marc h 25, 2004, he was working at a barbe rshop when he rec eived

a phone call from a fema le who stated her name was “Twe et.” K.J

. did not know this person. They had a brief conver sation about J .J

. After hang ing up the phone and finishing work, K.J

. called J.J . and aske d her if de fenda nt had bee n “messingwith her.” J .J

. said yes and be g an cry ing. K.J

. drove over and picked up J .J

. and his eight-year -old son, whom J

. J

. wa s baby sitti ng

. K.J

. drove around unti l he met up with his friend
, L am o n t J ones. K.J

. left J .J

. and his son in the car while he g ot out to speak with L amont. L amont g ave K.J

. a handgun. K.J

. place d the gun in the waist of his pants an d h e p u t t h e clip in his pocket. Then he

-4-dropped his son off at his mother’s house and drove over to the bowling alley

. K.J

. told J .J

.

to g o inside the bowling alley ; as she did so, he finished p ar k i n g, t ook the clip out of his pocket, and put it inside the gun. Then he walked into the bowling alley
, wher e he saw defe ndant and his mother

. K.J

. curse d at def endant a nd yelled out that he ha d “f***e d” his sister. Def

endant made no response but continued bowling. His mother came over, and K.J

. told her that defe ndant had been “f***ing ” J .J

. Then K.J

. pulled the gun out of his pocket and pointed it at d ef

en d an t ’s groin. The owner of the bowling alley stepped betwee n K.J

. and defe ndant, g rabbe d the gun, and told K.J. “ It a in’t worth it.” A couple of men drag g ed K.J

. outside the bowlingalley . His mother and J.J . joined him outsi de. K.J. testified they drove to their mother’s house and then to the hospital. ¶ 12 J .J .’s mother, Anita P., testified she beg an dating defe ndant in 1996 and that he moved in with her one year later. Anita’s daughter, J .J
., and her young est son, T.J
., as well as their uncle Clarenc e, also liv ed with them. Anita marrie d defe ndant in September 2001. Anita worke d at a messeng er service in 2001 and beg an working at a b an k in 2002. She usually

arrived home at 6 p.m. Whil e she was at work, defe ndant was responsible for picking J .J

. up from school. ¶ 13 Anita testified that, on Marc h 25, 20 0 4
, s h e and defe ndant went bowling afte r work. Whil e they wer e at the bowling alley
, J .J

. and K.J

. came in and K.J

. beg an cursing and saying that defe ndant had be en “f ***ing”J .J . for thre e year s. Whi le K.J. was saying this, J.J . was cry ing. Def endant made no response but continued bowling. Anita walked over to K.J

. to “see what was g oing on.” Def endant subsequently called Anita into the locker room and told her not to “bring D CFS into [ their] life rig ht now.” Anita asked defenda nt about what was g oing on, but he said that he could not talk about i t right now. Anit a left the bowli ng alley and went home with K.J

. an d J

. J

. Then they took J .J

. to the hospital. Anita never saw defe ndant af

ter that night. ¶ 14 Nane tte Kelly testified she is a reg istered nurse and she examined J .J

. on Marc h 25, 2004, at t h e h o spital. J .J

. had stated that she had been sexually assaulted. J .J .’s underw ear was collect ed
, an d Doctor Carrie Wil son took a vag inal swab, pubic comb, and blood sample from J .J

. using a sexual assault kit. Nurse Kelly testified that J .J .’s hy m en wa s b roken. Offic er Z dziarski picked up the sexual assault kit. ¶ 15 Doctor Robin Cotton was qualified as an expert in the field of DNA analy sis and testified that, from 1988 to 2006, she worke d for Cellmark Diagnostics, later called Orc hid Cellmark, which was a DNA testing lab. Her primary duties wer e to revie w the work of other analy sts at the lab. Doctor Cotton testified that, on April 29, 2004, Orc hid Cellmark rec eived a blood specimen and four vag inal swabs taken from J .J

. DNA profiles wer e g ener ate d from the blood sample and fr om semen on the va g inal swabs. ¶ 16 Detec tive Mike Dimeo testified that, on August 12, 2008, defe ndant “ca me into contact” with Chicag o police office rs “conc erning a traff ic matter” and was place d into custody based

on a prior investigative aler t that had been issued for defe ndant based on his alleg ed involvement in J. J. ’ s s e xual assault. Michae l Scarriot, an evidenc e technicia n for the Chicag o police depar

tment, testified that
, o n Au gust 13, 2008, he took a bucca l swab from defe ndant’s inner

mouth. The swab wa s subsequently seale d and inventorie d.

-5-¶ 17 J anice Martino, a fore nsic scientist with the I l l i n o i s State Police, was qualified as an

expert in the field of fore nsic DNA analy sis and testified that she rec eived defe ndant’s bucca l swab, from which she g ener ated a DNA profile. She compar ed this DNA profile with the DNA profile g ener ated by Orc hid Cellmark fr o m t h e vag inal swabs taken from J .J

. Ms. Martino concluded t hat t he DNA profile from defe ndant’s buccal swab matched the DNA profile from J .J .’s vag inal swabs. Ms. Martino testified that the DNA profile from J .J .’s vag inal swabs would be expected to match only 1 in 100 quadrillion black individuals, 1 in 3.4 quintill ion white individuals, or 1 in 12 quinti llion Hispanic individuals. ¶ 18 Detec tive Dimeo testified that he met with defe ndant o n Au gu s t 1 3
, 2008, in a police depar tment interview room. Detec tive Dim eo gave defe ndant his Miranda rights and defe ndant stated he understood them. Def endant told Detec tive Dimeo that he had a “spec ial relationship” with J .J
., in which he had penetr ated her vag ina with his penis numerous times, h ad touched his mouth to her vag ina numerous times, and had fondled her brea sts on multipl e occa sions. Def

endant also stated that he had place d his penis in J .J .’s hands on two

occa sions and that, on one occ asion, he ha d place d his penis to her anus. ¶ 19 Detec tive Dimeo t es t i fi ed th at , at the conclusion of their conver sation, he conta cted Assistant State’s Attorney (ASA) Ger ardo Tristan, who arrived at approximately 8:45 p.m. At approximately 9 p.m., Detec tive Dimeo and ASA T ri s t an went into the room with defe ndant. AS A Trist an gav e d ef en dant hi s Miranda rights ag ain, and defe ndant s tated he understood them. Def

endant g ave essentially the same statement to ASA Tristan that he had g iven t o Detec tive Dimeo. Defenda nt then a g ree d to g ive a written m emorialization of hi s statement. ¶ 20 ASA Tristan t es t i fi ed that, at approximately 9 p.m. on August 13, 2008, he met with defe ndant in an interview room at the police station. Detec tive Dimeo was also prese nt. ASA T ri stan introduced himself as a prosec utor and g ave defe ndant his Miranda righ t s , an d defe ndant s tated he understood. They enga ged in a conversation lasti ng about 20 minutes, during which defe ndant admitted he had been having sex with his stepdaughter. Def endant agree d to have his statement memorialized in writing

. ASA Tristan wrote out the statement, which wa s then signe d by him, Detective D imeo, and def endant. ¶ 21 ASA Tristan rea d defe ndant ’s s t at ement to the jury

. Def endant stated he first met J .J

. when he beg an dating her mother, Anita. Def endant marrie d Anita in September 2001. Prior to that date, around Marc h 2001, J .J

. g rabbe d and stroked his pe nis a s defe ndant rea d her a bedtime story

. Two or three day s later, J .J

. ag ain g rabbe d and stroked his pe nis. A bout one

wee k later, defe ndant eng ag ed in sexual intercour se with J .J

. He place d his penis inside her vag ina and moved it back and forth, and then he ejac ulated on the bed. Def endant stated that they continued to eng ag e in sexual inte rc o u rs e fr o m Marc h 2001 to Marc h 25, 2004. The sexual int erc ourse took plac e either in his room or in J .J .’s room. ¶ 22 Def

endant stated that he reme mbere d one time when he place d his penis in betwee n J .J .’s “re ar chee ks.” Def

endant stated he sometimes place d hi s t o ngue on J .J .’s vag ina and penetr ated her vag ina with his tongue

. He rubbed her vag ina with his fing ers and with baby oil. He also rubbed J .J

. ’s b reasts over her shirt and under her shirt. He last had sexual intercour se with J .J

. on M ar ch 2 5
, 2004. That night, J .J

. and her brother came into the

-6-bowling a lley and conf ronted de fenda

nt about his sex ual interc ourse with J.J

. ¶ 23 Also at trial, two sisters, M

. C

. an d Y. D., testified they too wer e sex crime victims of defe ndant. M .C. testified that, i n 1988, when she was 14 year s old, her mo t h er wa s dating defe ndant. In November or Dec em b er 1 988, M.C. came home from school and defe ndant

was there

. He made her sister Y.D. g o into the bath ro o m , and then he came out with an extension cord around his neck. He t old M.C. to take off all her clothes except for her underw ear and lie down on the bed. M.C. did as she was told. Def endant hit her sever al times with the extension cord. Then he asked her whether she was rea dy to be a child or a woman. M.C. said she was rea dy to be a woman. Def endant then made M.C. take off her underw ear and lie back down on the bed. De fenda nt took off his robe, g ot on top of M.C., and put his penis in her vag ina. Defenda nt continued to have sex ual i nterc ourse with M.C. wee kly for approximately two year s. M.C. testified that defe ndant also put his penis in her mouth. Def endant told M.C. not to tell anyone beca use her mother would not believe her and nobody else would ever

love her ag ain. M.C. eventually

told her mother a

nd the police a

bout what defe ndant had be en doingto her. ¶ 24 M.C.’s sister, Y.D., testified that, when she was six year s old, he r mother be g an dating defe ndant. In 1988, when Y.D. was eight year s old, de fenda nt took her to Mc Donald’s and then they went bac k to his apartment, whe re he asked he r to take off her clothes and lie on the bed. She did as she was told. Def endant then took off his clothes, g ot on top of her, and put his penis in her vag ina. Def endant continued to have sexual intercour se with Y.D. wee kly for approximately two year s. Y. D. testified that def endant a lso put his penis in he r mouth. Def endant told her never to te ll a nyone and bribed her with candy and chips. In 1990, Y.D. told her mother a

nd eventua lly

spoke with the police. ¶ 25 At the close of all the evidenc e, the circ uit court instructed the jury
, in pertinent part, that defe ndant is presumed innocent of the charg es ag ainst him, that the State has the burden of proving defe ndant guilty beyond a rea sonable doubt, that defe ndant is not require d to prove his innocenc e, and that the fac t defe ndant did not testify must not be considere d in any way in arrivingat the ver dict. ¶ 26 The jury convicted defe ndant of two counts of predatory criminal sexual assault of a child and three counts of criminal sexual assault. The circ uit court denied defe ndant’s motion for

a new trial. During sentenc ing, the State introduced a cer tified copy of conviction stating that defe ndant had been convicted of ag g ravated criminal sexual assault on September 26, 1991, for wh i ch h e was sentenc ed to seven year s’ imprisonment. The circ uit court sentenc ed defe ndant to natura l life in prison pursuant to section 12-14.1(b) (2) of the Criminal Code of 1961, which states in per

tinent part: “A pe rson who is convicted of *** the offe nse of pr edator y criminal sexual assault of a child afte r having previ o u s l y been convicted of the offe nse of *** ag g ravated criminal sexual assault *** shall be senten ce d t o a term of natura l life imprisonment.” 720 I L CS 5/ 12-14.1(b) (2) ( West 2008). ¶ 27 Def

endant filed a motion to rec onsider his sentenc e, which the circ uit court denied. The court stated it “w o u l d h ave found a sentenc e other than natural life had it been available.” Def endant f iled this ti mely

appea l.

-7-¶ 28 First, defe ndant contends the circ uit court violated Rule 431(b) when it failed to ask the

potenti a l jurors during voir dire whether they understood and acc epted the principles set forth in Zehr

. Where an issue conce rns compliance with a supreme court rule, revie w is de novo

. People v . W

are , 407 I ll. App. 3d 315, 353 (2011). ¶ 29 I n Z

eh r , our supreme court held that a trial court err ed during voir di r e b y re fu s i n g defe nse counsel’s reque st to ask questions about the State’s burden of proof, the defe ndant’s right not to testify and his right not to have to o ff er ev idence in his own behalf
, and the presumption of i nnocenc e. Zehr
, 103 I ll. 2 d at 4 7 6 -78. The supreme court held, “essential to the qualification of

jurors in a criminal case is that they know that a defe ndant is presumed innocent, that he is not require d to offe r any evidenc e in his own beha l f, t h at he must be proved gu ilty beyond a rea sonable doubt, and that his failure to testify in his own behalf cannot be held ag ainst him.” Zehr , 103 I ll. 2d at 477. ¶ 30 To en s u re compliance with Zehr
, the supreme court amende d Rule 431(b) in 1997 to provide, “[i] f reque sted by the defe ndant,” the court shall ask the prospec tive jurors whether they understand and acc ept the Zehr principles. I ll. S. Ct. R. 431(b) (ef f. May 1, 1997). The rule sought “to end the pr actice wher e the judge makes a broad statement of the applicable law followed by a g ener al question conce rning the juror’s willingness to follow the law.” I ll. S. Ct. R. 431, Commi ttee Comments (ef f. May 1, 1997). The appellate court held that Rule 431(b), as amende d in 1997, “doe s n o t require the judge to ask the questions unless defe ndant’s counsel has asked the court to do so.” People v. W illiams
, 368 I ll. App. 3d 616, 623 (2006); see also People v . Foreman , 361 I ll. App. 3d 136 (2005). ¶ 31 Effe ctive May 1, 2007, the supreme co urt aga i n am en d ed Rule 431(b), deletingthe languag e “[i] f reque sted by the defe ndant,” and leaving the rema inder of the rule unchang ed. Rule 431(b) now r eads:

“(b) The court shall ask eac h potential juror, individually or in a g roup, whether that juror understands and acc epts the following principles: (1) that the defe ndant is presumed innocent of the charg e(s) ag ainst him or her; (2) that befor e a defe ndant can be convicted t he S tate mus t prove the defe ndant guilty beyond a reasonable doubt; (3) that the defe ndant is not require d to offe r any evidenc e on his or her own behalf ;

an d (4) that the defe ndant’s failure to testify cannot be held ag ainst him or her; howeve r, no inquiry of a prospec tive juror shall be made into the defe ndant’s failure to testify when the de fenda

nt objects. The court’s method of inquiry shall provide eac h juror an opportunity to respond to specific questions conce rning the principles se t out in thi s section.” I ll. S. Ct. R. 431(b) ( eff

. May 1, 2007). ¶ 32 Thus, Rule 431(b), as am en d ed eff ective May 1, 2007, curr ently imposes a sua sponte duty on the circuit court to question eac h potential juror as to wheth er h e u n d er stands and

acc epts the Zehr principles. Such questioning of the potential jurors is no longe r depende nt upon a re quest by

defe nse counse l. ¶ 33 Def

endant’ s trial took place afte r the eff ective date of the 2007 amendments. The ref ore, the 2007 amende d version of Rule 431(b) is controlling

. ¶ 34 Def

endant con t en d s t h e circ uit court violated Rule 431(b) by “combin[ing] the four

-8-[ Zehr ] principles into two” and by failing to asce rtain whether the potential jurors understood

and acc epted the principles. Def endant con ce d es he did not object to the circ uit court’s alleg ed failure to comply with Rule 431(b), but argues “for feiture is inapplicable” beca use: (1) the eff

ect of the 2007 amendment, which require d the ci rc u i t co u rt to ask the four questions sua sponte , would be neg ated if defe ndant was require d to object there to; and (2) the waiver rule is relax ed when the trial judge ’s conduct is at issue. See People v. Dameron
, 196 I ll. 2d 156, 171 (2001). Defe ndant also contends t h e court’s alleg ed failure to comply with Rule 431(b) cannot be held harmless. In the alternative, defe ndant contends we should revie w the cour

t’s alleg ed fa ilure to comply with Rule 431(b) for

plain err or. ¶ 35 Our supreme court rec ently addre ssed these issues in People v. Thompson, 238 I ll. 2d 598 (2 0 1 0 ). In Thompson
, the defe ndant, Ang elo Thompson, was convicted of ag g ravat ed unlawful use of a wea

pon and sentenc ed to one year in prison. Thompson
, 238 I ll. 2d at 601. On appea l, Thompson arg ued his conviction should be reve rsed beca use the trial court failed to comply with Rule 431(b). Thompson
, 238 I ll. 2d at 605. Specifica lly
, the trial court did not question whether any of the prospec tive jurors understood and acc epted that Thompson was not require d to produce any evidenc e on his own behalf

. Thompson
, 238 I ll

. 2 d at 607. Fur ther, the trial cou rt d id not ask the prospec tive jurors whether they acc epted the presumption o f innocenc e. Thompson
, 238 I ll. 2d at 607. Thompson did not object to the alleg ed Rule 431(b) violation or include it in his posttrial m o tion, but the appellate court found the alleg ed err or was subject to plain-er ror revie w. Thompson
, 238 I ll. 2d at 605. The appellate court held that the trial court committed reve rsible err or by failing to comply with Rule 431(b) and so reve rsed Thompson’s conviction and rema nded for a n ew trial. Thompson , 238 I ll. 2d at 605. ¶ 36 On appea l to the supreme court, the State first contende d that a violation of Rule 431(b) is not a structura l err o r re qu i ri ng automatic reve rsal. Thompson
, 238 I ll. 2d at 605. The supreme court agree d. The supreme court noted that structura l err ors sy stemically erode the integ rity of the judicial proce ss, undermining the fairne ss of the defe ndant’s trial. Thompson
, 238 I ll. 2d at 608. “An err or is ty pically designated as structura l only if it nece ssarily rende rs

a criminal trial fundame ntally unfair or an unreliable means of deter mining guilt or innocenc e.” Thompson
, 238 I ll. 2d at 609. Error s have been rec og nized as structura l only in

a limit ed class of case s, including: a complete denial of counsel; trial befor e a biased judge ;

rac ial discrimination in the selec tion of a g rand jury ; denial of self-r epre sentation at trial; denial of a public trial; and a defe ctive rea sonable doubt instruc tion. Thompson
, 238 I ll. 2d at 609. ¶ 37 The supre me cour t concluded: “Rule 431(b) questioning is simply one way of helping to ensure a fair and impartial jury

. [C itation.] Despite the trial court’s f ai l u re to comply with Rule 431(b) in this

case , there is no evidenc e that defe ndant was tried by a biased jury

. We also note that the trial court did a ddress some of the Rule 431(b) require ments in its voir dire and *** the jury

was a dmonished and instructed on Rule 431(b) principles. Although compliance with Rule 431(b) is important, violati o n o f th e rule does not

nece ssarily rende r a trial fundamenta lly unfair or unreliable in deter

mining guilt or

-9-innocenc e. We conclude that the t ri al court’s violation of the amende d version of Supreme Court Rule 431(b) in this case does not fall within the very limit ed cate g ory of structura l err ors and, thus, does not require automatic reve rsal of defe ndant’s conviction.” Thompson , 238 I ll. 2d at 610-11. ¶ 38 The supreme court next discussed the State’s contention that Thompson had forf eited his claim by failing to object to the t rial court’s failure to comply with Rule 431(b) or include the issue in his posttrial motion. Thompson
, 238 I ll. 2d at 611-12. Thompson conc eded his claim was forf

eited, but asked the court to relax th e fo rf ei tu re rule based on the so-ca lled

“ Sprinkle doctrine.” Thompson
, 238 I ll. 2d at 611-12. Under the Sprinkle doctrine, the court may relax the forf

eiture rule when a trial judge oversteps his authority in the jury ’s prese nce
or when trial counsel eff ectively has been preve nted from o bjecting beca use such an objection wou l d fa l l o n deaf ear s. Thompson
, 238 I ll. 2d at 612. The supreme court noted there was no indication in the ca s e b ef o re it that the trial court would have ignor ed trial counsel’s objection to the Rule 431(b) questioning, nor was there any indication that the trial court oversteppe d its authorit y i n th e prese nce of the jury

. Thompson
, 238 I ll. 2d at 612. Acc ording ly
, the supreme c ourt dec lined to relax the forf eiture rule. Thompson
, 238 I ll. 2d at 612. ¶ 39 The supreme court next discussed whether the trial court’s failure to c omply with Rule 431(b) constituted plain erro r. T h o mps on , 238 I ll. 2d at 613. The plain-er ror doctrine is applied whe n:

“ ‘(1) a clea

r or obvious err or occurre d and the evidenc e is so closely b alanced that the err or alone threa tened to tip the scale s of justice ag ainst the defe ndant, reg ardle ss of the seriousness of the err or, or (2) a clea r or obvious err or occur

red and that err or is so serious that i t af fe ct ed the fairne ss of the defe ndant’s trial and challeng ed t h e i n tegrity of the judicial proce ss, reg ardle ss of the closene ss of the evidenc e.’ ” Thompson
, 238 I ll. 2d at 613 (quoting People v. Piatkowski
, 225 I ll. 2d 551, 565 (2007))

. ¶ 40 Thompson did not argue plain err or und er t h e fi rst prong , but only argued under the second prong that the Rule 431(b) violation infring ed his right t o an i mp ar t i al jury and there by aff

ecte d the fairne ss of his trial and the integ rity of the judicial proce ss. Thompson
, 238 I ll. 2d at 613. The supreme c ourt disagree d, noting it had e quated the second prong of plain-er ror revie w with structura l err or. Thompson
, 238 I ll. 2d at 61 3-14 (citing People v. Glasper , 234 I ll. 2d 173, 197-98 (2009)). T he supre me cour t held: “A f inding that defe ndant was tried by a biased jury would cer tainly satisfy the second prong of plain-er

ror revie w beca

use it would aff

ect his right to a fair trial and challeng e the integ rity of the judicial proce ss. Critically
, howeve r, defe ndant has not prese nted any evidenc e that the jury was biased in this case

. Def endant has the burden of persua sion on this issue. We cannot presume the j ury was biased simply beca use the trial c ourt err ed in conduc ting the Rule 431(b) questioning

. *** Our amendment to Rule 431(b) does not indicate that compliance with the rule is now indispensable to a fair trial. As we have explained, the failure to conduct Rule

-10-431(b) questioning does not nece ssarily result in a biased jury
, reg ardle ss of whether that questioning is mandatory or permissive under our rule. Although the amendment to the rule serve s to promote the selec tion of an impartial jury by making questioning mandatory
, Rule 431(b) questioning is only one method of helping t o en sure the selec tion of an impartial jury

. [C itation.] I t i s not the only means of achie ving that objective. A violation of Rule 431(b) does not implicate a fundame ntal right or
co n s t itutional protec tion, but only involves a violation of this court’s rul es

. [C itation.] Despite our amendment to the rule, we cannot conclude that Rule 431(b) questioning is indispensable to the selec tion of an impartial jury .” Thompson
, 238 I ll. 2d at 614-15. ¶ 41 The supreme court noted
, in the case befor e it, the prospec tive jurors had rec eived some, but not all, of the require d Rule 431(b) questioning and had been admonished and instructed

on Rule 43 1 (b ) p ri n ci ples. Thompson
, 238 I ll. 2d at 615. The supreme court conclude d Th o mp s o n had not established that the trial court’s violation of Rule 431(b) resulted in a biased jury and t h er ef

ore he failed to meet his burden of showing the err or aff ecte d the fairne ss of his trial and the integrity of the judicial proc ess. Thompson , 238 I ll. 2d at 615. ¶ 42 Finally
, the supreme court declined Thompson’s re qu es t to adopt a bright-line rule of

reve rsal for any violation of Rule 431(b) to ensure that the trial courts will comply with the rule. Thompson , 238 I ll. 2d at 615-16. ¶ 43 In the p re s en t case , as in Thompson
, defe ndant’s failure to object at trial constituted a forf eiture of the circ uit court’s alleg ed err or in its Rule 431(b) questioning. As in Thompson
, defe ndant has failed to establish that the forf eiture rule should be relax ed under the Sprinkle doctrine, as there is no indication the trial court would have ignor ed an objection nor is there any evidenc e the trial court oversteppe d its authority i n t h e prese nce of the jury

. Fur ther, defe ndant has failed to establish plain err or. The case was not closely balanc ed, so the alleg ed

err or is not reve rsible under the first prong

. See our rec itation of the evidenc e supra

. Nor is the alleg ed err or reve rsible under the second prong

. Def endant has prese nted no evidenc e the jury was biased in this case

. Def endant bear s the burden of persua sion on this issue, and we “ca nnot presume the jur

y was biase d.” Thompson , 238 I ll. 2d at 614. In the abse nce of any evidenc e of jury bias, defe ndant has failed to meet his burden of showing that the alleg ed Rule 431(b) violation constitutes plain err or. ¶ 44 Next, defe ndant contends his mandatory natura l life sentenc e im p o s e d p u r s u a nt to s e c tion 12-14.1(b) (2) of the Criminal Code of 1961 violates the proportionate p en al t i es clause

. Section 12-14.1(b) (2) manda ted the natura l life sentenc e bec ause de fenda nt was convic ted of pre d atory criminal sexual assault of a child afte r having previously been convicted of ag g ravated cr iminal sex ual assault. See 720 IL CS 5/ 12-14.1(b) (2) ( West 2008). ¶ 45 A statute car

ries a strong presumption of constitutionalit y

. People v. Sharpe
, 216 I ll. 2d 481, 487 (2005). The party challeng ing the statute bear s the burden of c l ea rl y establishing that it violates the constitution. Sharpe
, 216 I ll. 2d at 487. A revie wing court has “a duty to construe a statute in a manner that upholds its validity and constitutionalit y if it rea sonably

can be done.” People v. Grave s , 207 I ll. 2d 478, 482 (2003). Courts “ g ener ally defe r to the leg islature in the sente ncingare na because the l eg islature is institut ionally better e quipped

-11-to g aug e the seriousness of various offe nses and to fashion sentenc es acc ording ly .” Sharpe
,

216 I ll. 2d at 487. The constitutionalit y of a statute is a matter of law subject to de novo revie w. Sharpe , 216 I ll. 2d at 486-87. ¶ 46 The proportionate penalties clause of the I llinois Constitution states, “[a]ll penalties shall be deter mined both acc ording to the seriousness of the offe nse and wi th the objective of restoring the offe nder to useful citizenship.” I ll. Const. 1970, art. I
, § 11. Our supreme court has identified two distinc t t es t s to evalua te a proportionality challeng e. First, “a penalty violates the proportionate penalties cl ause if it is crue l, degrading
, or so wholly disproportionate to the offense commit ted as to shock the mora l sense of the community .” People v . Moss , 206 I ll. 2d 503, 522 (2003). Second, “the proportionate pe nalties clause is violated wher e offe nses with identical elements are g iven differ ent sentenc es.” Moss
, 206 I ll. 2d at 522. Our supreme cour t recently abandone d a third method, the “cross-comparison analy sis,” beca

use it had proven to be “proble matic and unworka ble.” Sharpe
, 216 I ll. 2d at 519. ¶ 47 Def

endant c halleng es his sentenc e under the first test, arg uing that his sentence w as so disproportionate to t h e o ff en s e as to shock the moral sense of the community

. Def endant argues that h i s offe nse of predatory criminal sexual assault of a child did not cause an unusually sever e degree of harm to J .J

. and that he likely would have been sentenc ed to the statutory minimum of six year s in prison had he not been previously convicted of ag g ravated criminal sexual assault. As a result of his prior ag g ravated criminal sexual assault conviction, the circ uit c ourt was require d under section 12-14.1(b) (2) to se ntence him to natur al life in prison. Def

endant contends the elevation of his sentenc e from six year s to natura l life based solely on his prior ag g ravated criminal sexual assault conviction was not proportionate to the seriousness of the offe nse and shocks the moral sense of the community

. Def endant argues that the extreme sanction of natura l life imprisonment should be restric ted to “extremely serious” case s, such as wher e violent injury or death resulted, or wher e defe ndant has shown

no prospec ts fo r rehabilitation. Def endant contends that, since the prese nt case is not extremely serious and since he has r e h a b il it ative potential, we should hold that the mandatory sentenc ing pr ovision of section 12-14.1(b) (2) is unconstitutional as applied to him. ¶ 48 Simi lar arg

uments wer e addre ssed in People v. Sanchez
, 344 I ll. App. 3d 74 (2003), and People v. Huddleston
, 212 I ll. 2d 107 (2004). In Sanchez
, the defe ndant there
, J uan Sanchez, J r., was convicted of ag g ravated criminal sexual assault of a 13-year -old g irl. Sanchez
, 344 I ll. App. 3d at 77. He previously had been convicted of criminal sexual assault of a five-year

old c hild. Sanchez
, 344 I ll. App. 3d at 79. The circ uit c ourt sentenc ed him to natura l life in prison ( Sanchez
, 344 I ll. App. 3d at 77) pursuant to section 12-14(d) (2) of the Criminal Code of 1961, which provides that, wher e a person is convic t ed o f aggra vated criminal sexual

as s ault afte r having been convicted of a separ ate criminal sexual assault, he “shall b e sentenc ed to a ter

m of natura l life imprisonment.” 720 I L CS 5/ 12-14(d) (2) ( West 2000). ¶ 49 On appeal, S anche z argued t h at his mandatory life sentence violated the proportionate penalties clause beca

use it was so disproportionate to the offe nse as to shock the moral sense of the community

. Sanchez
, 344 I ll

. Ap p

. 3 d at 84. Sanchez contende d he was convicted based on “slig ht and temporar y bodily harm that amounted to simple battery –bruises to the victim’s brea st.” Sanchez
, 344 I ll. App. 3d at 84. Sanchez argued that had he not bruised the

-12-victim’s chest, he would have been convicted of criminal sexual assault and the court would

only have imposed a sentenc e of betwee n 30 and 60 year s in prison. Sanchez
, 344 I ll. App. 3d at 84. ¶ 50 In aff

irming Sanchez’s conviction and his natura l life sentenc e, we noted that section 12- 14(d)( 2) is a rec idivist sentenc ing provision that has the purpose of deter ring repe at offe nders and “ ‘impos[ ing] harshe r sentences on offe nders whose repe ated convictions have shown their resistanc e to corr ection.’ ” Sanchez
, 344 I ll. App. 3d at 82 (quoting People v. Robinson
, 89 I ll. 2d 469, 476 (1982)). We fur ther stated: “[T] he harm in this case is not limit ed to bruising of the victim’s b re as t

. T h e evidenc e at trial showed the victim was in ‘seve re pain’ during the hospital exam and sustained bruises to her vag inal are a as well as her b re as t s, which could have been

cause d from being held down. We need not speculate about the psycholog ical harm d o n e to victims of forc ible sexual assaults. The mandatory life sentenc e provi s i o n ref lects the leg islature’s decision to trea t sever ely those who eng ag e in repe titive conduct of sexual assault beca use it rec og nizes the harm cause d to victims.” Sanchez
, 344 I ll. App. 3d at 85. ¶ 51 In Huddleston
, the defe ndant there
, Ger ald Huddleston, was convicted of three counts of predatory criminal sexual assault of a child, with eac h count perta ining to a separ ate victim. Huddleston
, 212 I ll. 2d at 110. The evidenc e sho we d t h at , in the course of his teac hing duties, Huddleston place d his penis in the m ouths of t hree differ ent fourth-g rade stu d en t s. Huddleston
, 212 I ll. 2d at 112 -1 5

. T h e ci rcuit court declined to impose the mandatory sentenc e of natura l life imprisonment r equire d by section 12-14.1(b) (1.2) when a person is “convic ted of predatory criminal sexual assault of a child committed ag ainst 2 or more persons reg ardle ss of whether the offe nses occur red as the result of the same act or of sever al related or unrelated acts.” 720 I L CS 5/12- 14.1(b)( 1.2) (West 2002). The circ uit court found that section 12-14.1(b) (1.2) violated the proportionate p enalties clause as applied to Huddleston and sentenc ed him to consec utive 10-year terms of imprisonment. Huddleston
, 212 I ll. 2d at 110. ¶ 52 On appea l, the supreme court noted, “[c]oncern for the welfa re and safe ty of children is ref lected in various criminal statutes” (Huddleston
, 212 I ll. 2d at 133) and that sec tion 12- 14.1(b)( 1.2) “wa s obviously intended to protec t this vulnera ble segment of our society from sexual preda

tion by deter

ring would-b e o f

fende rs and ensuring that those who commit sexual acts wi th multipl e victim s will not have the opportunity to reof fend” ( Huddleston
, 212 I ll. 2d at 1 3 4 ). T h e supreme court detailed the “conside rable commentar y” reg arding the psycholog ical d am age suffe red by children who are the victims of sexual assault ( Huddleston
, 212 I ll. 2d at 134-36) and noted that state leg islatures may respond to the substantial risk of recidivism posed by sex offe nders ( Huddleston
, 212 I ll. 2d at 138). The supreme court ul timately held t hat t he sentence of natura l life i mprisonment, as applied to Huddleston, wa s n ot crue l, degrading
, or so wholly disproportionate to his offe nse as to shock the mora l sense of the community

. Huddleston , 212 I ll. 2d at 141. ¶ 53 S i m i l ar to section 12-14(d) (2) discussed in Sanchez
, and s ec t i o n 1 2 -1 4

. 1 (b )( 1

. 2 ) discussed in Huddleston
, section 12-14.1(b) (2) ref lects the leg islativ e re cognition of the

-13-inhere nt harm cause d to victims of ag g ravated criminal sexual assault and predatory criminal

sexual assault of a child. Contrary to defe ndant’s argument, predatory criminal sexual assault of a child is “ extremely serious” reg ardle ss of whether violent injury or death resulted. See Huddleston , 212 I ll. 2d at 134-36 (disc ussing the c hronic psycholog ical proble ms suffer ed by children who are the vi ctims of sexual assault.) The mandatory sentenc ing pr ovision of

s e c ti o n 1 2

- 1 4

. 1 (b)(2) is intended to protec t children from sexual predators by deter ring repe at off e n d e r s a nd by harshly punishing offe nders who have shown resistanc e to corr ection so that they will not have the opportunity to reoff end. ¶ 54 Turning to the fac ts of defe ndant’s case , he argues that his particula r predatory criminal sexual assault did not cause an unusually sever e degree of harm and, there fore
, the mandatory natura l life s e n

tencing provision as applied to him violates the proportionate penalties clause

. Def en d an t ’s argument is without merit. J .J

. testified defe ndant inserted his penis into her vag ina two or three times a wee k for three year s, starting when she was 10 year s old, and that defe ndant threatened to hurt her mother if she ever told anyone what he had done. J .J

. testified to how defe ndant inserted his penis into he r anus afte r he discovere d she had been writing about t hese incidents in her diary

. J .J

. testified defendant caused h er pain when he rubbed her v agi n al ar ea wi th baby oil prior to the first time he inserted his penis into her vag ina, and she also testified he cause d her pain when he inserted his penis i n t o h er anus. Fur ther, J .J

. stated in her victim impact statement that, “although [t he] assault did not result in a death or long- term injury it still had a major emotional eff ect” on her, and that defe ndant “nea rly destroyed [her ] fa mily .” Clearly
, defe ndant’s repe ated sexual assaults of J .J

. phy sically harme d her and cause d both he r and her family sever e emotional har

m. Furthe r, M.C. and Y.D. simil arly testified that when de fenda nt was datingtheir mother in 1988, he sexually assaulted them for approximately t wo y ea rs, beg inning when they wer e, respe ctively
, 14 year s old and 8 year s o l d

. Defendant tol d M.C. not to tell anyone because her mother would not believe he r and nobody would ever love her ag ain; he also told Y.D

. not to tell anyone and bribed her with candy and chips. Def endant’ s resistanc e to corr ection is demonstrated by his repe ated sexual assaults over multiy ear periods of the children of the

women he dated. On these fac ts, defe ndant’s natura l life sentenc e does not shock the moral

sense of the community as it was nece ssary to deprive hi m of the opportunity to reof fend. Acc ording ly , defe ndant’s sente nce w as not violative of the pr oportionate pe nalties clause

. ¶ 55 Def

endant contends People v. Miller
, 202 I ll. 2d 328 (2002), compels a differ ent result. In Miller
, the 15-year -ol d d efe ndant was convicted of two counts of first-degree murder based on acc ountability when he acte d as a lookout. Miller
, 202 I ll. 2d at 330-31. The circ uit court ref used to impose the statutorily mandated sentenc e of natura l life imprisonment under the multipl e murder p ro v ision of the Unified Code of Correc tions (730 I L CS 5/5-8- 1(a) (1)( c)( ii) (West 1996)), finding application of the statute to M i l l er would violate the proportionate penalties clause

. Miller
, 202 I ll. 2d at 330. The court instead sentenc ed him to 50 year s in prison. Miller
, 202 I ll. 2d at 330. The supre me cour t affir med, hol ding that the mandatory life sentenc e “grossly distorts the fac tual rea lities of the case and does n ot

acc urate ly repr esent defe ndant’s persona l c ulpability such that it shoc ks the moral sense of the community

. This m o ra l sense is particula rly true *** wher e a 15-year -old with one minute to contemplate his decision to participate in the incident and stood as a looko ut

-14-during the shooting, but never handled a gun, is subject to life i mp ri s o n m ent with no

possibili ty of parole–the same sentenc e applicable to the actua l shooter.” Miller
, 202 I ll. 2d at 341. ¶ 56 Miller is rea dily distinguishable, as the mandatory sentenc e of natura l-life imprisonment does not grossly

distort the factual realties of t he present case. Unli ke in Miller , defe ndant here was a

n adult in his forties and a r epeat offende r who, on his own accord, took his 10-
year -old stepdaughter into his bedroom, sexually assaulted her over three year s, and forc ed her to keep silent by threa tening to hurt her mother and destroying her diary

. Def endant was not convicted on a theory of acc ountability but, rathe r, as the prin cipal offe nder. As discussed, def

endant’ s sentenc e is not disproportionate to the offense in a wa y that shocks the moral sense of the c ommunity

. ¶ 57 Next, defe ndant contends the mitti mus incorre ctly states he was convicted of pre datory criminal sexual assault of a child consisting of an act of anal penetr ation as charg ed in count I I
, when his conviction actua lly was for mouth to vag ina conduct as charg ed in count I I I

. The State conce des the err or. Acc ording ly
, we corr ect the mitti mus to ref lect d ef endant was convicted of predatory criminal sexual assault of a child under count I I I (cha rg ing mouth to vag ina contac t) instead of count I I (cha rg ing penis to anus contac t). See People v. Douglas
, 381 I ll. App. 3d 1067, 1069 (2008) (appellate court may corr ect the mitti mus without

rema nding the cause to the circ uit court). ¶ 58 For the foreg oing rea sons, we affirm de fenda nt’s convictions and sente nce and correc t the mittim us.

¶ 59 Affir

med; mitti mus corre cted.

-15-