20 20 IL App (1st) 1 80198 No. 1-18-0198 Order f iled April 27, 20 20 Fi rst Division

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT

______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff

- Appellee ,

v.
JEREMIAH CHERRY , Defendant -Appellant. ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County.
No. 13 CR 3 867
Honorable Kenneth J. Wadas, Judge, presiding.

JUSTICE HYMAN delivered the judgment of the court. Presiding Justice Griffin and Justice Pierce concurred in the judgment. O RDER ¶ 1 Held : We affirm de fendant’s convictio ns for criminal sexual assault and unlawful use of a firearm by a felon where: (1) the record did not rebut the presumption that the trial judge relied on ly on competent evidence in finding him guilty ; and (2) a ny improper reliance on other crimes evidence would be harmless error, given the other evidence of defendant’s guilt. ¶ 2 D efendant Jeremiah Cherry was convicted of criminal sexual ass ault 720 ILCS 5/11

- 12 0(a)(1) (West 2012) and two counts of unlawful use or possession of a weapon by a felon (UUWF) (720 ILCS 5/24.1.1(a) (West 2012) ) , and sentenced to consecutive terms of 10 and 7 years’ imprisonment, respectively. On appeal, Cherry contends that he was deprived of a fairNo. 1-18-0198

- 2 - trial by the admission of other crimes evidence , notwithstanding the tri al court’s state ments that it did not rely on this evidence in reaching its verdict. ¶ 3 W e affirm. T he issue on appeal is not whether the other crimes evidence was improperly admitted, but whether the court improperly relied on it, causing prejudice to Cherr y. After a thorough review of the record, we cannot say that it amounts to an “affirmative showing” that the trial court actually relied on evidence of other crimes. Rather, the trial court’s ruling makes clear that it relied on the competent evidence of the sexual assault in finding Cherry guilty. In addition,
g iven the ample evidence of the sexual assault, we have no reason to doubt that Cherry would have been convicted, eve n had the trial court never heard any evidence regarding the other crimes evidence. ¶ 4 Background ¶ 5 Cherry was charged by information with one count of criminal sexual assault of K.B. and

two cou nts of UUWF in connection with events that occurred in Januar y 2013

. Before trial, the State filed a “motion to allow other crimes evidence” under section 115

- 7.3 of the Code of Criminal Procedure of 1963 ( 725 ILCS 5/115 -7.3 (West 2014)), concerning evidence of Cherry’s July 2012 sexual assault of another woman, T.P

. At a pretrial hearing, t he trial court granted the
State’s motion, finding “substantial similarities between the two offense s .” ¶ 6 At trial, K.B. testified that in January 2013, she went on a trip to Chicago following her graduation from college in Michigan. She stayed with a cousin on her father’s side. K.B. also had relatives in Chicago on her mother’s side, including two cousins, T .R. and Cherry

. K.B. had not previously met them.No. 1-18-0198

- 3 - ¶ 7 Cherry ’s mother put K.B. in contact with Cherry

. K.B. and Cherry made plans to go “paint ball shooting.” Cherry picked K.B. up in a car, with two other m en whom she had never

met. Cherry drove the group to his home, where they began “chilling a little, partying,” drinking and smoking marijuana. K.B. drank some vodka , but she was not intoxicated. She saw other people in the group use the drug “ molly” (a term for methylenedioxymethamphetamine, also known as “ ecstasy”). K.B. declined to take any. K.B. observed a younger woman at the home, N.T., who was “intoxicated” to the point that she “didn’t know what was going on around her.” ¶ 8 K.B. recalled seeing a handgun as well as a large r gun that looked like an AK -47. Cherry and one of his friend s were “playing with the guns and taking pictures with the guns .” Cherry referred to the m as his “toys.” K.B. identified People’s Exhibits 1 and 2 as firearms that app eared to be the same weapons she saw in the home. ¶ 9 At one point, K.B. saw two men taking N.T. to a bedroom. K.B. felt uncomfortable because she did not “believe [N.T.] knew what w as going on with the two guys that were with her.” K.B. went to a restroom and tex ted T.R. because she wanted to leave. When she came out of the bathroom, K.B. heard Cherry state: “I’m going to f*** my cousin.” K.B. responded “no, you’re not.” ¶ 10 K.B. returned to the bathroom and tried to call either R.T. or her sister. She was “trying to get in contact with someb ody ” because she wanted to leave. When K.B. left the bathroom, Cherry “ was standing there” and “blocked” her. She and Cherry began “tussling.” Cherry pushed
K.B. into another bedroom and on to the bed. Cherry and K.B. began “fighting over [her] pants and [her] belt , ” as Cherry tried to pull them down

. K.B resisted and told him to stop. Cherry eventuall y pulled her jeans down; he could not pull them off complet ely because K.B. wasNo. 1-18-0198

- 4 - wearing tall boots. Cherry pus hed he r legs up tow ard her ch est, so that she “could hardly breathe.” She tried to “buck [] him off the bed ” and push him away , but he penetrated her vagina with his penis. ¶ 11 D uring the assault, one of Cherry ’s friends, Dari us Edwards, entered the room and “kind of asked [ Cherry ] like that’s your cousin, you know, like why would you do that, are you serious, he was kind of shocked I guess.” K.B. asked Edwards to “get [ Cherry ] off [her] .” Cherry told Edwards to get out and close the door, and Edwards complied

. ¶ 12 After the assault, K.B. called T. R. , who drove to the house. As soon as she entered T.R.’s car, K.B. began calling relatives in Michigan. K.B. was “ a little frantic.” K.B. reached a godsister on the phone and told her that she had been raped. When T.R. heard this, she turned the car around and began to drive back toward the house. K.B. stayed in the car . T.R. went into the house for about five minutes. T.R. drove K.B . to her mother’s house. K.B. told T.R .’s mother that she had been assaulted. T.R. and T.R.’s mother took K.B. to the police station and then to a hospital, where a criminal sexual assault kit was collected f rom her. ¶ 13 T.R. testified that Cherry was her cousin and she had know n him her whole life. She described K.B. as a “distan[t] cousin” whom she had first met on January 16 , 2013. O n January 18, K.B. sent her a text message asking to pick her up from the residence where Cherry lived.
T.R. had been to that house numerous times, and had her mail sent there. ¶ 14 She drove to the home and texted K.B. When K.B. entered the car, T.R. noticed that she was “very panicky, v ery emotional , [and] upset.” She recal led that K.B. was “rummaging through her phone trying to call people.” K.B. eventuall y reached someone on her phone and said that she was raped. When T.R. heard this , she aske d K.B. what happened and K.B.No. 1-18-0198

- 5 - responded “I will tell you later, I j ust nee d to get away from here.” T.R. turned the car around and drove back to her aunt’s house because she wanted to identify who was at the house

. Because K.B. was from out of town, “she wouldn’t have recognized t hem at a later date.” ¶ 15 T.R. entered the house while K.B. stayed in the car. Cherr y met here at the front door ; She th e n went to the living room “to act like [she] was looking for mail.” She noticed four men and one wom an, but she did not recognize anyone one besides Cherry

. One of the men began to argue with T.R. and “pulled out a gun on [her] ” but Cherry intervened and took the gun away from him. People’s Exhibit 1 appeared to be the same gun. She left the house and went back to the car, where K.B. was waiting. She drove t o her mother’s home, and all three later went to the
po lice station and then to the hospital. ¶ 16 The State then proceeded by stipulation. If called, Dr. Rashid Kysia, an emergency room physician, would testify that he examined K.B. on January 18. K.B. tol d him tha t she was raped by her cousin at his house. Dr. Kysia noted a tear to the interior vaginal wall and that K.B. had blood in her vaginal vault and in her urine. Dr. Kysia collected a criminal sexual assault kit. ¶ 17 Chicago Police o fficer McDermott would testify that , on January 18, he went to a residen ce in response to a report ed sexual assault

. Cherry answered the door and said “I know what this is all about.” Cherry spontaneously stated: “I didn’t rape her. I f***ed her. She’s my cousin. We had a p  eating contest.” McDermo t t would test ify that there were three other men in the house, who were identi fied as Trent Peppers, Arthur Moss, and Edwards, as well as a woman, N.T. Edwards and N.T. were having sex whe n police arrived. N.T. was extremely intoxicated and could not be interviewed. McDermo t t reco vered a loaded semi

- automatic rif leNo. 1-18-0198

- 6 - and ammunition from beneath an enclosed porch at the home. Another responding officer would testify that he r ecovered a semi

- automatic pistol beneath the porch. ¶ 18 Through other stipulations, th e parties agreed that forensic scientists with the Illinois State Police would testify that DNA collected from K.B.’s criminal sexual assault kit positively matched a DNA sample taken from Cherry

. ¶ 19 T.P. testifi ed about a 2012 incident in which Cherry sexually assaulted her

. T. P. met Cherry in June 2012. On July 14, 2012, she went with Cherry to a barbecue. She got sick at the barbecue and then went to the home of a man she knew as “Peanut” (later identified as A ntwon Hebron) . The next day, Cherry told her that he had given her molly without her knowledge. T.P. did not know K.B. ¶ 20 Later on July 15, T.P. was at Peanut’s house watching television with his girlfriend and sister. That night, Cherry unexpectedly arrived. He began cursing at her, and hit her. At one point Cherry left the room, and “Peanut and his girlfriend shut the door and locked it.” But, Cherry “kicked a hole in the door” to regain entry to the room, and continued to hit her. Cherry later forced T.P. into a car, and drove her to an alley, where he anally and vaginally raped her. Cherry then drove T.P. back to his house, where he beat her, raped her again, and choked her. At one point, she “passed out.” When she woke, Cherry again started hitting her. T.P. also testified that Cherry threatened to shoot her and put a gun to her head. ¶ 21 A woman named Toddy arrived, and Cherry told her to take T.P. home. When she was alone with the woman , T.P. told her that Cherry had beaten and sexually assaulted her. T he woman took T.P. to a hospital where a criminal sexual assault kit was collected.No. 1-18-0198

- 7 - ¶ 22 The parties stipulated that forensic scientists with the Illinois State Police would testify that Cherry’s DNA matched DNA collected f r om T.P.’s criminal sexual assault kit. The S tate also introduced a certified copy of Cherry’s felony conviction in case 97 CR 0791701 to prove the offense of UUWF. ¶ 23 After the State rested, Cherry ’s motion for a directed verdict was denied. ¶ 24 The defense called Moss , who testified that he knew Cherry for about two years before the events of January 18, 2013. On that date, Moss was at Cherry ’s house with Peppers, Edwards, and N.T. Moss explained that people began drinking and smoking marijuana. Moss and Peppers eventually left to pick up K.B., after they “received a phone call from [ Cherry’s] mother saying his cousin was in town and she wanted to hang out with us.” Moss an d Peppers brought K.B. back to the house, where people continued talking, smoking, and doing m olly

. ¶ 25 Cherry , Edwards, and K.B. had a discussion about an oral sex contest , after which they

went into a bedroom together. Edwards later came out of the bedroom but left the bedroom door
open. Moss could see inside the bedroom and saw Cherry performing oral sex on K.B. Moss testified that Cherry and K.B. came out of the bedroom at the sam e time

. K.B w e nt int o the bathroom, and Cherry sat on the living room couch. After about five minutes, K.B. came out of the bathroom and s at on the cou ch . About 30 to 40 minutes later , another woman whom Moss did not know arrived

. The woman was acting “weird” and talking about the mail. K.B. left with the woman. L ater, Cherry ’s mother called and they learned that police may be on the way. ¶ 26 The defense called Antwon Hebron to rebut T.P.’s other crimes testimony. Hebron testified that he has known Cherry for many years. In July 2012, Cherry visited his house with T.P., whom Hebron had not met before. About a day later, T.P. called Hebron and she went toNo. 1-18-0198

- 8 - his hou se . Shortly thereafter, Cherry arrived ; he told T.P. “let’s go” and left with her . Hebron denied Cherry kicked in the door, or he eve r s aw Cherry hit T.P. ¶ 27 Edwards testified that he went to Cherry ’s house with N.T., whom he described as his “best friend,” along with Peppers and Moss. The group, including Cherry , began part ying, drin kin g and using m olly

. After an hour or two, Peppers and Moss left to pick up K.B. T he
group , including K.B., continued to talk , dr i nk liquor , smoke marijuana, and use m olly. At some point, the group had a “sexual conversation ,” which got into “ a vagina eating contest” between Edwards and Cherry . Ed wards, Cherry and K.B. went to a be droom. After K.B. pulled her pants down, Edwards decided not to participate in the contest and he walked out of the room, leaving the door open. ¶ 28 Edwards went to a nearby room from which he cou ld see into the bedroom. Cher ry performed oral sex on K.B. “[A] fter that they sta r ted having sex.” The atmosphere was “calm ” and “never one time did it get aggressively [sic]

. ” Edwards later re- entered the bed room but he did not intervene because it “looked like they were enjoying themsel[ves.]” Cherry and K.B. eventually returned to the living room. K.B. was “acting normal until [ Cherry ] exposed the fact that he had sex with his c ousin , and her whole vibe changed.” About an hour later , K. B.’s cousin came to the house, and K.B’s “ w hole att itude c hanged ” “from a happin ess all t h e way down to a sadness.” According to Edwards, the police arrived while K.B. and her cousin were still in the house , and he was having sex with N.T

. On cross

- examina tion, Edwards maintained that it was K.B.’s idea to have a “vagina eating contest.” He admitted that he had sex with N.T. even though she was intoxicated and could barely walk or talk.No. 1-18-0198

- 9 - ¶ 29 Cherry tes tified that he and his friends planned to go paintball shooting and to shoot a rap video. Peppers , Edwards, Moss , and N.T

. arrived at his h ouse around noon. His mother called and tol d him that K.B., his cousin from Detroit , wanted to hang out with him. He had never met or spoken to K.B. Moss and Peppers p i cked up K.B. and brought her back to the house. When they retu r ned , the group st arted drinking, lis tening to music, and using m olly for “some hours.” ¶ 30 At one point, Cherry a nd Edwards were “debating” and having a “conceited” conversation about who was better at certain things, such as rapping. Eventually , he or Edwards said “I am a better p** ** eater than you” and they asked K.B. “if she wanted to be a judge in a p  eating contest.” K.B. agreed , and the three of them wen t into a bedroom. Cherry testified that K.B. pulled down her pants, and he performed oral sex on her. S he “enjoyed” it, and they proceeded to have vaginal sex on the bed. Cherry d enied that Edwards said a nything to him about having sex with his cousin, or that he told Edwards to leave the room. ¶ 31 After he and K.B. had sex, Cherry went into the living room and “started partying again.” K.B. went to the bathroom and then sat down on the living room couch. K.B.’s demeanor was “calm” and “cool.” Cherry began “teasing ” K.B., calling her “nasty” for having sex with her cousin. K.B. “got kind of embarrassed by it” and he stopped teasing her once he saw “she didn’t like me poking fun at her.” ¶ 32 Cherry saw K.B. use her phone before T.R. arrived at the house

. As soon as T.R. arrived , K.B. left the house

. T.R. cam e inside the house and went to a box where Cherry ’s mother kept mail. T.R. “fake [d] like she’s looking in there for something and then she walk [ed] right out

. ” Cherry denied that T.R. had an argument with anyone

. Cherry did not see anyone with a gun inNo. 1-18-0198

- 10 - the home. A bout an hour after T.R. left the house, Cherry rec eived a phone call from his mother and learned he had been accused of rape. He stayed at the home until police arrived. ¶ 33 D uring his direct examination , Cherry was also asked about his interactions with T.P. in July 2012. He testified that he invited her to a barbe c ue at his si ster’s hou se . He and T.P. were drinking at the barbe c ue until they left to go to Hebron ’s home

. There , T.P. was in a “room with ten guys” and “everybody was having sex with her. ” According to Cherry , T.P. “formed a Team A and a Team B” and had sex with “ Team A ” before “ Team B. ” Cherry also had sex with T.P

. Cherry stayed at Hebron’s house all night , went hom e to sleep , and r eturned to Hebron’s house six or eight hours later. When he came back, the “sam e thing was going on” with T.P. and “a group of guys.” T.P. told Cherry that she “was ready to go ,” so he drove her back to her home. Cherry denied that he raped or struck T.P. ¶ 34 On cross -examination, Cherry maintained that T.P. had sex with about 20 men. At one point, Cherry was asked: “Did it bother you that the girl that you brought to the barb e cue had sex with the whole neighborhood?” Cherry answered: “No. I like sluts. I like sluts more than I like a woman who is not a slut. I love sluts.” Cherry was also cross

- examined regarding his interac tions with K.B. in January 2013. Cherry said that the oral sex contes t was “probably” his idea but maintained that she agreed to it. ¶ 35 If called, Detective Russell Sutherland would state that , wh en he interviewed K.B., she told him that Cherry grabbed her by the arm and told her “we’re going to have a p** **

- eating

cont est.” K.B. “said she told him no and that he attempted to pull her into a bedroom just adjacent to the bathroom.” Detective Costello would testify that he investigated the alleged sexual assault of T.P. in July 2012

. When Costello interviewed T.P., she had relayed certainNo. 1-18-0198

- 11 - details that T.P. could not recall during her trial testimony, including that Hebron had told Cherry to “chill out” when he first attac ked her, and that Cherry had punched T.P. after she refused to hand him a bottle of vodka. The defense rested following the se sti pulations. ¶ 36 In rebuttal, the State introduced additional stipulations. Detectiv e Sutherland would testify that he spoke to Cherry about the incident involving K.B

. Cherry told Sutherland that “he was having a rap battle with [Edwards] and sta t ed the p 

- eating contest was to see who was the best rappe r. ” Cherry stated that the “contest was more like a surprise for the participants.” ¶ 37 The parties also stipulated that Assistant State’s Attorney Anastasia Harper would testify that she interviewed Edwards in the presence of another ASA . Edwards told t he ASAs that he
h ad been un truthful in a pre vious inter view with a detective. Edwards recalled that , during the party, Cherry stated “I’m going to f** * my cousin” and K.B. replied “no, you ain’t.” F or two to three minutes , Cherry was “trying to force her into the bedroom” and she was “trying to get away from him.” Eventually, Cherry “gained control and thre w her on the bed.” Cherry “got her pants off and then pushed her legs up while holding her down with his hand on h er chest” an d then “forced his penis into her vagina.” Edwards “started to feel bad” and went into the bedroom “to see if he could talk [ Cherry ] o ut of sexually assaulting her.” Edwards said to Cherry “man, you
gonna do this to you r own cousin is that what you on?” Ch erry told Edwards to “get the f*** out

o f my room” and close the door

. Cherry told everyone to “get our stories straight.” Cherry “came up with the p****-eating contest story” and “everyone agreed to tell the story.” ¶ 38 After hearing all of the evidence, but before closing arguments, the trial court explained that it would not rely on the other crimes evidence concerning T.P.No. 1-18-0198

- 12 - “I originally made a ruling that the evidence of other crimes was applicable in this case. I now know that was a serious m istake. The evidence of other crimes took place at a different point in time, were drastically different than the facts outlined in this ca s e and in this trial the evidence of other crim e s became the trial within the trial * * * *. And because of that fact I’m discounting the entire testimony of [T.P.] and I’m discounting the entire testimony of the defense witness [Hebron] that rebutted her testimony.”
T hus, the court s tated that “ [t] his case will be decided based on the testimony of [K.B.], [T.R.] Mr. Moss, Darius [Edwards], the defendant and the stipulations.” ¶ 39 Following closing arguments, the trial court found Cherry guilty on all counts

. In explaining its decision, t he court first found that K.B. “testified not just credibly but highly credib[ly ]. ” The court noted the “way she de scribed the manne r in whi ch the d efendant used force on her; the fact that she had boots on, jeans, was unable to actually take off all of her clothing so that it was just forced partially down * * * . ” The court found that her testimony was “corroborated by vaginal tears and bleeding, circumstantial evidence which proved her to be testifying credibly on that force.” The court also found that K.B. was corrob orated by T.R., who testified “ highly credibly .” The court noted T.R. “would have more bias to be on the side of the defendant because she’s his first cousin and she hardly knew” K.B., but that her testi mony “was credible and backed up” K.B.’s testimony. ¶ 40 W ith respect to the defense wit nesses , the court remarked that Edward s’ credibility was
“at zero .” The court observed that “ [h] e was obviously under the influence of something while he was testifying” and had the “worst de meanor I ever saw of any witness that has ever tes tifiedNo. 1-18-0198

- 13 - her e .” The court also noted that Edwards was “impeached by statements that he made to an [ASA] where in he basically corroborates everything that [K.B.] said and con firms that she was sexually ass aulted by the defendant.” The court also found that Moss was “impeached” and “not believable.” The court then stated: “The defendant. What do I say about the defendant’s testimony? He’s not credible, he said he prefers his wom[e]n to be sluts and he doesn’t like a woman wh o’s not a slut. That’s exactly the kind of individual with that attitude that would rape his own cousin.” ¶ 41 The court found Cherry guilty on all cou nts. The trial court denied Cherry ’s motion to set aside the verdict or grant a new trial. In doing so, the co urt remarked that it had “completely discounted the evidence of other crimes witness[es].” ¶ 42 After a sentencing hearing, Cherry was se ntenced to 10 years in pr i son for criminal sexual assault (c ount 1) , as well as a consecutive 7

- year term for UUWF (c ount 2 ). H e was also sentenced to a concurrent 7- year term on UUWF (count 3), for an aggregate 17

- year prison

sentence. Cherry ’s motion to reconsider sentence was denied. ¶ 43 Analysis ¶ 44 Cherry contends that he was deprived of a fundamental ly fa i r tr i al where the t rial cour t

a dmitted “over w hel mingly prejud ic ial un charged o ther crimes evid ence ” related to T.P. In setting forth this argument, h e acknowledges the court’s state ment that its initial ruling to allo w this evidence was a mistake , and that it would be “discounting the entire testimony of T.P.” and of Hebron. Nevertheless , he maintains that he was prejudiced by the admission of the other crimes evidence because the trial court referred to his testimony about “sluts .” According toNo. 1-18-0198

- 14 - Cherry , this d emonstrates that the trial judge “was inca pable of di s re garding T.P

. ’s

over whelmingly prejudicial other cri mes test imony and evi dence ” which “ clearly contributed to the trial court’s guilt adjudication s.” On that basis, he requests that we reverse his conviction and grant him a new trial. ¶ 45 In response, t he State emphasiz es that the trial court “explicitly said it would not consider the other crimes evidence.” The State argues that the trial court’s “passing remark ” referencing Cherry ’s comments about “sluts” is insufficient to show that the court actually relied on other crimes evi dence to find him gu ilty . T he State maintains that the record shows that the t rial court did not rely on other crimes evidence in finding Cherry guilty but instead relied “on the cre dible

t estimony of K

. B., which was cor roborated both by medical evidence and the credible testimony of [ T.R. ].” The State other wise argues that “any possible error here was harmless ” given the evi de nce of Cherry’s gui lt. W e agree with the State. ¶ 46 “In general, eviden ce of other crimes is not admissible if it is relevant merely to es tablish de fendant’s propensity to commit crimes.” People v. Nieves , 193 Ill

. 2d 513, 529 (2000) . But, “[s] ection 115

- 7.3 of the Code (725 ILCS 5/115

- 7.3 (West 2006)) provides an exception to the general rule in criminal cases ,” permitting evidence that a defendant charged with certain sexual offenses “has committed other sexual offenses to show the defendant’s propensity to commit sex offenses.” People v. Nelson , 2013 IL App ( 1st ) 102619, ¶ 40 (citing People v. Donoho , 204 Ill. 2d 159, 176 (2003) ). “Like the common law, however, section 115

- 7.3 permits such evidence to be admitted only if: (1) it is relevant; and (2) its probative value is not outweighed by its prejudicial effect. [Citation.]” Id.No. 1-18-0198

- 15 - ¶ 47 A reviewing court will not reverse the trial court’s decision to admit other

- crimes evidence under section 115 -7.3 unless it finds that t he court abused its discretion. Donoho , 204 Ill. 2d at 182 . T hat , however, is not the precise question raised in this appeal, given the procedural history. The trial court in i tially admitted other crimes evi dence regarding T.P., but at the close of all evidence sua sponte acknowledged that its prior ruling was a “serious mistake

. ” The court explicitly said that it would disregard such evid ence in deciding the case. Nevertheless, Cherry claims that he was prejudiced because the court improperly relied on such other crimes evidence, despite its stat em ent that it would not do so. Thus, the issue on appeal is not whether the other crimes evidence was improperly admitted, but whether the court improperly relied on it, causing prejudice to Cherry

. ¶ 48 As recognized by Cherry , “t he trial judge, as the trier of fact, is presumed to know the law and to have considered only competent evidence in reaching its determination on the merits in a bench trial. [Citation s.] ” People v. Koch , 248 Ill. App. 3d 584, 592 (1993). Our supreme court has recognized tha t a trial judge at a bench trial is “capable of compartmentalizing its consideration of evidence

. ” People v. Schmitt , 131 Ill. 2d 128, 137 (1989). Thus, although other crimes evidence presents a “danger” that “it may convince a jury to convict the defendant simply because he is a bad person ,” that “ fear is assuaged” in a bench trial, since “ it is presumed that the trial court considered the other

- crimes evidence only for the limited purpose for wh ich it was introduced.” People v. Littleton, 2014 IL App (1st) 121950, ¶ 35 (quoting People v. Nash , 2013 IL App (1st) 113366, ¶ 24). ¶ 49 To rebut the presumption that the court conside red “only competent evidence” in a bench trial, “ there must be an affirmative showing in the record that the trial judge actually used theNo. 1-18-0198

- 16 - evidence improperly as alleged. [Citations. ]” Koch , 248 Ill. App. 3d at 592; Schmitt , 131 Ill. 2d
at 138 -39 ( “We must presume the trial court considered only competen t evidence unless the contrary affirmatively appears of record or the trial court, confronted with serious improprieties in a case where a defendant’s guilt is not manifest, fails to comment on the irregularities or even indicate an awareness thereof.” ). ¶ 50 Th e record shows that the trial court sua sponte reversed its earlier ruling granting the motion in limine , found that the other crimes evidence related to T.P. was improper, and explicitly stated that it would disregard such evidence in deciding the case. Thus, a presumption exists that the trial court did not improperly rely on other crimes evidence in finding Cherry guilty , and Cherry must make an affirmative showing in the record to rebut that presumption. Cherry asserts that the presumption was rebutted because, in the course of finding him gui lty, the court referenced testimony eli cited from Cherry when he was cross

- examined about his encounter with T.P. Specifi c ally, the court noted that Cherry “ said he prefe rs his wom[e]n to be sluts and he doesn’t like a wom an wh o’s not a slut. That’s exa ctly the ki nd of indi vidual with that kin d of attitude that would rape his own cousin.” ¶ 51 After reviewing th is comment in the context of the court’s other findings, w e cannot say that it amounts to an “affirmat ive showing ” that the tr ial court actually relied on evidence of any crimes agai nst T.P

. in finding that Cherry assaulted K.B. Rather, the trial court’s ruling makes clear that it relied on the competent evidence of K.B.’s sexual assault in finding Cherry guilty.
T he transcript of the court’s ruling makes plain that, by the time the court comment ed about Cherry’s “sl uts ” remark, it had thoro ughly explained why it found that other evid ence proved his guilt. The court first explained that it found K.B. testified “not just credibly but highlyNo. 1-18-0198

- 17 - credibl[y],” citing her detailed testimony about how Cherry forced himself on her. The court also noted that K.B.’s description of the sexual assault was corroborated by medical evidence

. The court additi onally found that K.B.’s testimony was corroborated by T.R. , who testified “highly credibly.” T he court explained that T.R. ’s testimony was particu larly convincing since she “would have more bias to be on the si de of the de fendant bec ause she’ s his firs t cousin” where as she had just met K.B. at the time of the incident. After crediting that evidence, the court proceeded to explain that it found that e ach of Edwards, Moss, and Cherry lacked credibility. It also noted that a stipulation reflected Edwards’ prior statements to ASAs , in which he corroborated K.B.’s account of the assault. A t no point in its findings did the court make any mention of T.P.’s testimony. ¶ 52 Although the court referenced Cherry ’s testimony about “sluts ,” which he gave in response to a question about his interaction with T.P. , this reference does not show that the court relied on any evidence of a crime against T.P. to find h im guilty of assaulting K.B

. At most, it appears the court made the comment to criti cize Cherry’s ov erall attitude towards women, having already conclud ed , based on the competent evidence, that he had sexually assaulted K.B. For these reason s, we reject Cherry’s contention t hat the court’s comment rebuts the presumption that the court relied on competent evidence. ¶ 53 We further agree with the State that, even assuming arguendo that the court erroneously relied on other crimes evidence concerning T.P. , this would not be reversible error, given the

ove rwhelming evidence of Cherry’s guilt with respect to K.B. That is, we perceive no chance that the verdict would have been different, even if the other crimes evidence had not been admitted in the first place

.No. 1-18-0198

- 18 - ¶ 54 A lthough this was a bench trial , we are guided by the harmless error inquiry applied where other crimes evidence has been improperly admitted in a jury trial

. Our supreme court has instructed: “Although the erroneous admission of other

- crimes evidence ordinarily calls for reversal, the e vidence must have been a material factor in the defendant’s conviction such that, without the evidence, the verdict likely would have been different. If it is unlikely that the error influenced the jury, reversal is not warranted. [Citation.]” People v. Ha ll , 194 Ill. 2d 305, 339 (2000 ); People v. Nieves , 193 Ill. 2d 513, 530 (2000) (“the improper introduction of other

- crime s evi dence is harmless error when a defendant is neither prejudice d nor denied a fair trial based upon its admission. [Citations.]” ). E rror in the admission of other crimes evidence is harmless

w here “the record indicates that the evidence of defendant’s guilt, even with the other crime s evidence, was overwhelming.” People v. Martin , 2012 IL App (1st) 093506, ¶¶ 43-44; see also People v. Johnson , 406 Ill. App. 3d 805, 819 (2010) (error in admitting testimony regarding another sexual assault was harmless where “Given the strength of the evidence presented against defendant, mixed with the fact that the State did not put undue emphasis on th e other

- crimes evidence * * * we cannot say the outcome of his trial would have been different” had other

crimes evidence been excluded). ¶ 55 As described by the trial court , K.B. gave a detaile d account of the assault that the court found highly credible. Her testimony was corroborated by medical evidence, a s well as T.R. ’s recollection of events. In contrast, t he testimony of the de fense witnesse s was inconsistent and impeached, including Edwards’ pr ior statement s to ASAs

. Given the strength of t he State’s evidence, w e cannot say that the outcome of Cherry ’s trial would have been different had theNo. 1-18-0198

- 19 - other crimes evidence been excluded

. Accordingly, even assuming that the trial court improperly considered evidence related to T.P. , that would not resu lt in reversible error. ¶ 56 Affirmed.