## 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 . V aughn , 2011 IL App (1st) 092834

Appellate Court Caption THE PEOPL E OF THE STATE OF I LL I NOI S, Plaintiff-Appe l lee, v. ERI C VAUGHN , Def

endant- Appellant.

District & N o. First District, Six th Division Docke t No. 1-09-2834

Rule 23 Order

filed Rule 23 Order withdrawn Opinion filed September 30, 2011

November

16, 2011 November

23, 2011

Held (Note : This sy ll abus

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

par ed by the Rep o 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

. ) De fenda nt’s convictions for multipl e counts of criminal sexual assau l t , sexual a buse and sexual re lations w ithin families arising f rom incidents involving his daughter wer e upheld over his contentions that the State failed to prove one conv i ct i on in which defe ndant’s admission was not

corr oborate d independen t l y , that the State failed to prove defe ndant committed the acts of criminal sexual assault by the use or threat of forc e, and that defe ndant’s counsel was ineffec t i v e i n failing to move to suppress defe ndant’s inculpatory statements, but the mi t timus was

corr ecte d to refle ct 707 days of cr edit for pr esente nce de tention.

Dec ision Under Review Appea l from t h e C i rcuit Court of Cook County
, No. 07-CR-21925; the Hon. Clay

ton J . Crane, Judge , presiding

.

J udgment Affir med; mitti mus corre cted.Counsel on

Appea l Michae l J

. Pell et i er, Alan D. Goldberg
, and Rache l Moran, all of State Appellate D efe nder’ s Offic e, of Chica g o, for a ppellant.

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

. Spellberg
, Yvette L oizon, Tasha-Marie Kelly
, and Charle s J . Prochaska , Assistant St ate’ s Attorney s, of counse l), for the People.

Panel J USTI CE LAMPKI N delivere d the judgme nt of the court, with opinion.
J ustices Cahill and Garcia c oncurr ed in the judgment and opinion.

OP INION

¶ 1 Following a bench trial, defe ndant, Eric Vaughn, was convicted of 56 counts of criminal sexual assault, sexual abuse, and sexual rela tions within families as a result of two incidents involving defe ndant’s 14-year -old daughter, T.V. The counts wer e later merg ed into six convictions for which defe nd an t wa s sentenc ed to a total of 30 year s’ imprisonment. On
appea l, d ef

endant contends: (1) the State failed to prove one of the convictions beyond a

rea sonable doubt wher e defe ndant’s admission was not corr oborate d independe ntly ; (2) the State failed to prove beyond a rea sonable doubt that defe ndant committed the acts of criminal sexual a ssault by the use of forc e or the threat of forc e; (3) defe nse counsel was ineffe ctive for failing to file a motion to suppress defe ndant’s inculpating statements; and (4) defe ndant is entitled to 707 day s of pre sentenc e dete ntion credit. B ased on the following , we a ffirm.

¶ 2 FACTS ¶ 3 At trial, T

. V. t es t i fi ed that she was 14 year s old at the rele vant time. On September 3, 2007, T

. V. was visiti ng defe ndant. They
, along with T.V.’s brother and defe ndant’s 1
g irlfriend, h ad been s hopping for school clothes and had returned to defe ndant’s home for

a sleepove r. Def

endant lived with his g irlfriend. At some point, T.V. went to sleep. She was

wea ring a t-shirt and box er shorts. T.V.’s brother was also asleep in the same bed. T.V. later awoke and found defe ndant was betwee n her leg s with his mouth on her vag ina. T.V. noticed that her shirt had been pulled up over her h ea d an d h er shorts had been remove d. T.V. testified that she was scar ed. Def endant then inserted his fing er into her vag ina and inserted his penis into her vag ina as well. T.V. added that defe ndant’s penis made c ontact with her

anus. ¶ 4 The following morning, defendant asked T.V. if she l iked what had occu rr ed t he prior

T .V . li ved with he r mothe r, b ut saw def end anton are gularbas is

. 1

-2-night. T.V. ref used to answe r. Def

endant then told T.V. that she was his specia l g irl and that if she told any

body about the incident he would kill her. Def endant and T.V. wer e alone duringthe conve rsation. T.V. did not tell anyone about the inc ident. ¶ 5 On September 14, 2007, T.V. ag ain spent the night at defe ndant’s home. The purpose of the visit was for defe ndant to take T.V. to g et contac t lenses; howeve r, the store was closed,

so they p l an n ed t o have a sleepove r. That night, T.V. fell asleep in the same bed as her brother, wea

ring a t-shirt and box er shorts. T.V. ag ain awoke and found defe ndant betwee n her leg s with his mouth on her vag ina. T.V. continued to lie on the bed while defe ndant had his mouth on her vag ina for 30 minutes. T

. V. testified that she was scar ed at the time. Acc ording to T.V., defe ndant penetr ated h er vag ina and anus with his penis. T.V. did not

scre am; however, she squirmed and attempted to turn from defe ndant penetrating her, but defe ndant continued to “com [ e] back” and “do it ag ain.” T.V. could not rec all whether defe ndant ejac ulated. ¶ 6 The following morni n g, T

. V. re turned to her mother’s house and told her best frie nd ab o u t the i ncidents, adding that she was afr aid t o inform her mother. At approximately 11
p.m. that night, T.V. told her mother, Shaunta Doug las, about the incidents. T.V. was cry ing when she repor

ted what had occur

red. Doug las called the police. The office r that responde d
to the call advised Dougla s to take T.V. to the hospital. Doug las took T.V. to Mount Sinai Hospital. Whil e at the hospital, T.V. spoke with a nurse and a doctor, separately telling them about the incidents. T.V. w as examined by the doctor. ¶ 7 S h ar l en e R ivera testified that she was a reg istered nurse who interviewed T

. V. an d assisted in the sexual assault examination on September 16, 2007. Acc ording to Rivera, T.V.
repor ted that “she was rape d by her fathe r on two occa sions, on September 3 and September 15,” and that she was penetr ated vag inally and anally and that defe ndant licked her vag ina. Rivera assisted in perf

orming the rape kit examination. On cross-e x amination, Rivera said 2 T.V. only stated that def

endant put his penis in her va g ina and licke d her va g ina. ¶ 8 Doctor Michae l Slater examined T .V. on September 16, 2007. T.V. told Dr

. Slater that defe ndant perf

ormed oral sex on her an d inserted his penis into her vag ina. Dr. Slater’s phy sical examination did not reve al any phy sical injury or vag inal trauma. Dr. Slater testified that this was normal beca

use g ener ally there is no injury inflicted on a sexual assault victim that has eng ag ed in interc ourse prior to the attac k. ¶ 9 Detec tive I an Ba rcla y was assigned to investiga te the incidents. At approximately 7:45

a.m. on September 27, 2007, Ba rcla y and his pa

rtner, Detec tive Morris, arr ested defe ndant
at his workplac e and transp o rted him to the 11th district police station. At approximately 8:30 a.m., defe ndant was advised of his Miranda rights. Def endant stated that he understood his rights. At 4 p.m. or 5 p.m., B arc lay interviewe d defe ndant. Def endant was rea dvised of his Miranda rights. Def

endant waived his rights and provided an oral statement. Def endant said that he touched T.V.’s brea st with his hand. Def endant continued that, on September 3, 2007, he penetrate d T.V.’s va g ina with his finge r and pe nis and kissed her vag ina with his

T he parti es st ipu la te d tha t the vag ina l sw ab s c o ll ect ed with the rape kit did not con ta in 2

semen orsa li va.

-3-mouth. Def endant added that the incident occur red afte r his g irlfriend rec eived a phone call and left their home. De fe n d an t fu rther said that, on September 14, 2007, he forc ed T.V.’s leg s apar t by virtue of his weight and siz e and kissed her vag ina. On the second date at issue, defe ndant als o p en etrated T.V.’s vag ina and held his arm around her. The incident lasted approximately 30 minutes. After the interview conclude d, Detec tive Ba rcla y called the State’s Attorney ’s offic e. ¶ 10 As s i s t an t State’s Attorney (ASA) Martha Kross arri v ed at th e p o l i ce s t at i o n at approximately 8 p.m. on September 27, 2007. ASA Kross testified that defe ndant waived his Miranda rights and agree d to provide an oral statement. Def endant admitted that he fondled T.V.’s brea st and vag ina and attempted t o p u t h i s penis into her vag ina during the first incident. Def

endant further admitted th at he fondled T.V.’s brea st and vag ina, kissed her
vag ina, place d his fing er into her vag ina, and penetrated her vag ina and anus with his penis during the second incident. Def endant then agree d to have his statement memo rialized in writing

. Def

endant signed eac h pag e of the statement. Defenda nt instructed ASA Kross t o make a number of c orre ctions to the statement, which hethen initialed. ¶ 11 Def

endant’ s statement was rea d into the rec ord. The statement related to the September 3 incident provided: “Eric states that [hi s g irlfriend] g ot a ca ll and left the house with he r daughter. Eric
states that he then went into the bedro o m wher e [T.V. and her nine-year -old brother D.V.] wer e. Eric states that [D.V.] was [asleep]. Eric states that [T.V.] [was] also asleep. E ri c s t ates that he laid on the bed with [T.V.] Eric states that he fondled [T.V. ] o n h er brea st under her t-shirt. Eric states that he then fondled [ T

. V. ] ’s vag ina over her underw ear

. [Eric] then s tates that he pulled [T.V.’s] underw ear drown [ sic ] and kis sed

on her vag ina. Eric states that he g ot on top of [T.V.] and tried to place his penis into her
vag ina. He stated [he] did not g et his penis all the way inside [T.V.] ’s vag ina beca use he started to fee l bad about what was happening

. He states he g ot up and left the room. Eric states that when he was sti ll in the room, [T.V.] looked at him with a re ally mean look on her f ace , then turned he r hea d. Eric state s that [D.V.] did not wake up.”
In relation to the September 14 incident, de fenda nt’s statement provided: “Eric states that he, [T.V.] and [D.V.] wer e watching a movie toge ther in the bed in the room wher e [T.V.] and [D.V.] wer e to sleep. Eric states that [D.V.] fell asleep. Eric
states that [he] was laying on the side of [T.V.] with [T.V.] ’s back to him. Eric states that he beg an to fondle [T.V.’s] brea sts over and und er h er s hirt. Eric states that he then pulled [T.V.] ’s shorts down. Eric state s that he pulled his penis out and place d it in the

are a of her butt. Eric states that [T.V.] started to squirm. Eric states that he held his arm

over her body

. Eric states that beca use [T.V.] was squirmi n g, h e turn ed her over. Eric
states that he pulled up [T.V.’s] shirt and beg an to kiss her brea st. Eric states that he put his fing er into [T.V.’s] vag ina. Eric states that he then kissed [T.V.] ’s vag ina. Eric states he then g ot on top of her and place d the head of his penis into [T.V.] ’s vag ina. Eric states that he felt bad aga in and st opped. Eric states that [ T.V.] was mumbling and g ave him

a mea n look ag ain. Eric states that he left and went to his room. Eric states that [ D.V.] did not wake up. Eric states that he took both [T.V.] and [ D. V.] home on Saturday
,

-4-9/15/07. Eric states that on both occa sions, he told [T.V.] not to tell anyone and to keep it a secr et. Eric states that he is sorry that he did what he did to [T.V.]

. Eric states that he knows that he was wrong and that he does not want to do any of these things ag ain. Eric
states that he fee ls really bad and knows he needs help. Eri c s t at es that he has been
treated well by the police and by ASA Kross. ***. Eric states that no threats or promises had been made to him to g et him to g ive this statement, and he was g iving this statement fre ely and voluntarily

. ***. Eric states that h e wa s al lowed to make any chang es or

corr ections to his statement and that he put his initials by any chang e or corr ection. Eric
states eve ry

thing c ontained in the stateme nt is true and cor rec t.” ¶ 12 After the Sta t e rested its case -in-chie f, the trial court grante d defe ndant’s motion for a direc ted finding on seven counts, all perta ining to contac t betwee n defe ndant’s penis and 3 T.V.’s a nus. ¶ 13 Def

endant testified that two detec tives took him to the police station following his arre st

on September 27, 2007. At approximately 9 a.m., one of the detec tives informed him of the basis of the arrest. The detec tive then aske d him if he wante d to talk about the si tuation or make a s t at em en t. Def

endant testified that he tol d the detectives he did not want to talk to them at that time. Def

endant wa s then place d in a holding c ell for a fewhours. ¶ 14 Acc ording to defe ndant, at about 12:30 p.m. or 1 p.m., the detec tives returne d and asked defe ndant if he wanted to respond to statements made ag ainst him. Def endant was rea d a statement of T.V.’s acc usations. Def endant testified that one of the detec tives made him fee l “re ally bad” for what h ad o cc urr ed. Def endant told the detec tive that “all of this” was beca use of alcohol and drug addictions. Def endant t estified that one of the detec tives told him that they would assist him i n re ce iving treatment i n jail. Def endant was then returned
to the hol ding cell and told to think about m aking a st ateme n t

. Ac co rd i ng to defe ndant, “I didn’t know about the criminal arr est proce dures and stuff at this time beca use this is my first time goingthrough the, you know, questioningpart be ing a rre sted.” ¶ 15 At about 4 p.m., the detec ti v es re turn ed y et aga in, and defe ndant made a deta iled
statement of the events in question. Def endant testified that when he asked for help obtaining
treatment the detec tives told him he neede d to make a statement in order to rec eive that help. Def endant “explained to the two detec tives that ever y thing in the charg es [was] exactly true, but [he] played a majority role in it, and the majority of the charg es ag ainst [hi m]
, [he] played a role in it, but every

thing wa sn’t all the way

true.” ¶ 16 De fe n d an t further testified that he agree d to speak wi t h t h e AS A an d p ro v i d e a handwritten statement. Def endant testified that some of the st at em en t he provided to the ASA was not true. Def

endant did not elaborate as to what portions of the statement wer e not

acc urate

. Def

endant said he did not inform the ASA that portions of the statement wer e not true. Def endant testified that the detec tives wer e prese nt when he made his statement to the ASA and they repe ate d l y s t o p ped defe ndant during the statement when he attacke d the

vera city of the statement, stating, “no, well, this is what the statement is saying that you did.” Acc ording to defe ndant, he agree d with the statemen t and signe d it beca use he wanted to

Count s I V , V , V I , X IV , X V I I I , L, a nd LX X V I I I

. 3

-5-rec eive tre atment.

¶ 17 On cross-e x amination, defe ndant admitted he told the detec tives he committed some of the crimes beca

use it was the truth. Moreove r, defe ndant testified th at “m o st” of the
stat ement taken by the ASA was true and that he made corr ections to the statement. Def endant admitted that on September 3, 2007, he fondled T.V.’s brea st, kissed her vag ina, and inserted his fing er into her vag ina. Def endant initially stated that his penis did not have
contac t with T.V.’s vag ina on that date, but later during cross-e x amination admitted having
contac t betwee n his penis and T.V.’s vag ina on September 3, 2007

. De fenda nt, howeve r, denied threaten i n g T

. V. ’s life if she told her mother about the incident. Def endant further admitted that on September 14, 2007, he fondled T.V.’s brea sts, remove d T.V.’ s box er shorts, place d his head betwee n T.V.’s leg s, kissed her vag ina, place d h i s fi n g er in her
vag ina, g ot on top of T.V. while he had an ere ct i o n , held his arm around T.V., and made
contac t w ith he r vag ina with his penis in a n attempt to have sexual interc ourse. Def endant, howeve r, denied telling the detec tives that he forc ed T.V.’s leg s open with his weight or that he had sexual contac t with her for 30 minutes. Def endant clarified that his g irlfriend rec eived the phone c all and lef

t the hous e on September 14, 2007, not September 3, 2007, a s it was
repor ted in his handwritten statement. Def endant testified that the detec tives promised to help him rec eive a ssistance if hemade the statement. ¶ 18 I n rebuttal, defenda nt testified that hi s penis did not make contact with T.V.’s anu s o n either date. ¶ 19 The trial court found defe ndant no t gu i l ty of all of the counts related to T.V.’s bre ast 4 beca use she had no rec ollection of defe ndant fondling h er b re as t

. The trial court found defe ndant guilty on the rema ining 56 counts, stating, “ther e is absolutely no question in my mind t h at t h e events alleg ed in those counts occur red on both the 3rd and 14th of September.” ¶ 20 On September 3, 2009, the trial court merg ed defe ndant’s convictions into six counts of criminal sexual assault wher e three counts wer e for the conduct on September 3, 2007, and three counts wer e fo r th e conduct on September 14, 2007. The counts provided that defe ndant was guilty of intentionally or knowing ly committing an act of sexual penetr ation
upon T.V. such that defe ndant’s penis, mouth, and fing er wer e used to contac t T.V.’s vag ina by the use of forc e or threat of forc e. Def endant was sentenc ed to three consec utive six -year prison terms for the incidents on September 3, 2007, and three consec utive four- year prison terms for the incidents on September 14, 2007.

¶ 21 DECI SI ON ¶ 22 I . Fa ilure to Prove Corpus Delicti ¶ 23 Def

endant contends the State failed to prove he inserted his fing er into T.V.’s vag ina on September 14, 2007, beca use there was no evidenc e of the off en s e o ther than defe ndant’s

Count s X LI , X LI I I , X LV , X LV I I , LI I I , LV , LX I , LX I I I , LX V , LX V I , LX X I , LX X I I , and 4 LX X I I I

.
-6-own admission. Consequently
, d efendant argues that the State failed to prove the corpus

delictiof the off

ense a nd, there fore , his conviction must be reve rsed. ¶ 24 A challeng e to the sufficie ncy of the evidenc e require s this court to deter mine whether
, when looking at the evidenc e in a light most favor able to the State, any rational trier of fac t could have found the essential elements of the crime beyond a re asonable doubt. People v

. Jack son , 358 I ll. App. 3d 927, 941, 832 N.E.2d 418 (2005). We will not reve rse a conviction unless the evidenc e is so unrea sonable, improbable, or unsatisfac tory that it raises rea sonable doubt of the defe ndant’s guilt. Id. As the trier of fac t, the trial court is in the superior position
to assess the cre dibility of witnesses, resolve inconsistencies, deter mine the weight to assign the testimony , and dra

w re asonable infere nces the ref rom. Id.

. ¶ 25 It is well established that the State must prove the corpus delicti of an offe nse beyond a

rea sonable doubt. People v. Lambert
, 104 I ll. 2d 375, 378, 472 N.E.2d 427 (1984). In other words, it is the State’s burden to prove beyond a rea sonable doubt that a crime occur red. Id. The supre me cour

t has said:
“Proo f o f co r

p u s delicti require s both proof of injury or loss, as well as proof of criminal ag ency

. *** [C itation.] However, the corpus deli ct i ca n n o t be proved by the defe ndant’s confe ssion alone. [C itations.] There must be either some independe nt evidence or corr oborating evidenc e outside of the confe ssion which tends to establ i s h that a crime occur

red. [C itation.] I f there is such evidenc e, and t h at evidenc e tends to prove that the offe nse occur red, then that evidenc e, if it corroborate s the fac ts contained in the defe ndant’s confe ssion, may be considere d toge ther with the confe ssion to establish the c o r

p us d e lic ti

. [C itation.] ” (Interna l quotation marks omitted.) Id. at 378-79.
More r ece ntly , the supreme court ha s added: “Although the corr obora tion require ment demands that there be some evidenc e, independe nt of the confe ssion, tending to show the crime did occur , that evidenc e need not, by itself, prove the exis tence of the crime beyond a re asonable doubt. I f the defe ndant’s confe ssion is corr oborate d, the corr oborating evidenc e may be considere d with the confe ssion to deter mine whether the crime, and the fac t the defe ndant committed it, have been proven beyond a rea sonable doubt.” People v. Sargent
, 239 I ll. 2d 166, 183, 940 N.E.2d 1045 (2010)

. ¶ 26 Ou r re view of the rec ord demonstrates that during his cross-e x amination defe nd an t , himself, provided independe nt, corr oborating evidenc e that he penetr ated T.V.’s vag ina with his fing er on September 14, 2007. We rec ognize neither Detec tive Ba rcla y , Nurse Rivera,

nor T.V. testified that defe ndant penetr ated T.V.’s vag ina with his fing er on September 14, 2007; howeve r, we conclude that defe ndant’s testimony sufficie ntly corr oborate d his out-ofcourt a dmissions to ASA Kross. ¶ 27 The corroboration rule was borne out of a g ener al m istrust of ex trajudicial s tatements. Id. “Two rea sons are commonly advanc ed for this mistrust: (1) confe ssions are unreliable if

coer ced, and (2) for various psycholog ical rea sons, pers o n s ‘conf ess’ to crimes either that have never occur

red or for which they are not leg ally responsible.” Id. The mistrust inhere nt in extrajudicial st at em en t s i s not at issue for in-court testimony

. During his crossexamination, the St ate asked defe ndant a series of questions r elated to what he a dmitted in

-7-his police statements. At that time, the State did not ask whether defe ndant admitted to the

police that he penetr ated T.V.’s vag ina with his fing er on S eptember 14, 2007. Howeve r, later in th e cr o s s -examination, the State asked defe ndant a series of questions direc ted at summarizing the offe nses. During that portion of the cross-e x amination, the fol l o wi ng transpire d:
ASA SHEA: Mr. Vaughn, reg arding the other tim e, later in September, a

round the 14th of September, a g ain, [T.V.] had stayed over at your plac e, cor

rec t?
DEF ENDAN T: Yes. ASA SHEA: And you guy s wereactua lly g oing to g et contac t lenses, cor rec t?
DEF ENDAN T: Yes. ASA SHEA: And you fondled he r bre asts that night, c orre ct?
DEF ENDAN T: Yes. ASA SHEA: And you put your fing er inside he r vag ina?
DEF ENDAN T: Yes.” ¶ 28 The rec ord clea rly demonstrates the State provided the date at issue and context for that date. Def endant was to answe r the questions in relation to the date on which T.V. slept over to g et contac t lenses, namely
, September 14, 2007, and not when she slept over afte r having
g o n e s h o pp ing f

o r s c h o ol clothes. Notwithstanding, had defe ndant’s testimony been in c o r r e c t as t o the date at i ssue, defense counsel was available to clea r up the confusion on redire ct. No redire ct was taken. Acc ording ly
, not only did defe ndant’s testimony corr oborate the oral and handwritten statements provided to ASA Kross in which he admitted penetr ating T.V.’s
vag ina with his fing er on September 14, 2007, but defe ndant’s in-court testimony provided

an independe nt basis upon which to sustain the conviction. The testimony was available for challeng e or clarification and was observe d by the trial court. Jack son , 358 I ll. App. 3d at 941 (it was the trial court’s duty
, as the trier of fac t, to assess the cre dibility of the witnesses, resolve any inconsistencies, assign weight to the testimony
, and draw rea sonable infere nces there from). The trial court conclude d the evidenc e supported a finding that defe ndant inserted his fing er into T.V.’s vag i n a o n September 14, 2007, and we do not find the evidenc e was so unrea sonable, improbable, or inconsistent to raise a rea sonable doubt of defe ndant’s guilt. S ee id. ¶ 29 None of the ca s es ci t ed b y d ef en d an t i n v o l v ed s i tuations wher e the def endant’ s extrajudicial statement or admission was corr oborate d by the defe ndant’s testimony at trial. See Lambert
, 104 I ll. 2d at 379; People v. Richmond
, 341 I ll. App. 3d 39, 45-46, 791 N.E.2d 1132 (2003); People v. W right
, 286 I ll. App. 3d 456, 461, 677 N.E.2d 4 9 4 (1996); People

v. Kokoraleis
, 149 I ll. App. 3d 1000, 1003-07, 501 N.E.2d 207 (1986). Our rese arc h has not

reve aled any case s with a simil ar fac t pattern. We c onclude defe ndant’s in-court testimony and extrajudicial confe ssion sufficie ntly establi shed the corpus delicti of the offe nse of digital pe netration on September 14, 2007.

¶ 30 I I . Fa ilure to Prove Use of F orceor Thre at of F orce ¶ 31 Def

endant contends the State failed to prove he used forc e or threatened the use of for ce

-8-while committing t h e offe nses for which he was convicted. With the exception of the

conviction di scussed prior, defe ndant does not challeng e his guilt as t o th e re m ai n i n g acts of sexual penetr ation. Def endant, howeve r, contends the convictions should be corr ecte d to ref lect a differ ent theory of liability
, namely
, “an act of sexual penetr ation with a victim who

was under 18 year s of ag e when the act was co m m i t ted and the acc used was a family

m emb er

. ” 720 I L CS 5/12-13(a) (3) (West 2006). The State responds that the evidenc e sufficie ntly demonstrated defe ndant used forc e or threatened t h e u s e of forc e while committing the ac ts of sexual penetration. ¶ 32 As previously stated, when a defe ndant challeng es the sufficie ncy of the evidenc e, we consider whether
, afte r viewing the evide n ce in a light most favorable to the State, any rational trier of fac t could have found the essential elements of the crime wer e proven beyond

a rea sonable doubt. Jack

son , 358 I ll. App. 3d at 941. It is not the function of this court to retry the defe ndant or substitut e our judgme nt for that of the trial court. People v. Ross
, 229 I ll. 2d 255, 272, 891 N.E.2d 865 (2008). The trial court assesses the cre d i b i l i t y of the witnesses, resolves any incons i s t en cies across testimony
, assigns weight to the testimony
, and draw s any rea sonable infere nces there from. Jack son , 358 I ll. App. 3d at 941. We will not set aside a conviction unless the evidenc e is so unrea sonable, improbable, or unsatisfac tory as to raise a re asonable doubt of the def endant’ s guilt. Id. ¶ 33 For

purposes of c riminal sexual assault, use of forc e or thre at of force me ans: “(1) when the acc used threatens to use forc e or violence on the victim or on any other
person, and the victim under the circ umstances rea sonably believed that the acc used had the ability to exercise that thre at; or (2) when the accus ed h as overc ome the victim by use of superior strength or siz e, phy sical re straint or phy sical conf inement.” 720 IL CS 5/ 12-12(d) (West 2006).
Our court has elabor ated that “[t] here is no definite standard establishing the amount of forc e which the State is require d to prov e t o show rape

. I f circ umstances show resistanc e to be futile or life endang ering or if the victim is overc ome by superior strength or fea r, useless or foolhardy acts of resistanc e are not re quired.” People v. Bolton
, 207 I ll. App. 3d 681, 686, 566 N.E.2d 348 (1990)

. ¶ 34 We f

ind the evidenc e sufficie ntly demonstrated the use of forc e or threa t of forc e. T.V. testified that, on both dates at issue, she awoke at night to her father be tween he r leg s with his mouth on her vag ina. T.V. testified that s he was afr aid on both occa sions. T.V. further testified that, afte r the first incident, defe ndant threa tened to kill her if she told anyone. T.V. complied and did not inform her friend until afte r the second incident. At that time, T.V. told her friend that she was afraid to repor t the incidents to her mother. When she finally told her mother, T.V. was cry

ing. Whil e testif

yi n g re garding the incident on September 14, 2007, T

. V. s t at ed that she squirmed to avoid defe ndant’s penetr ations, but he continued in his attempts. In his handwritten statement, defe ndant s ai d that, following both incidents, he instructed T.V. not to tell anyone. Def endant admitted in both his handwritten statement and while testifying at trial that, during the second incident, he held his arm around T.V. In total, the evidenc e clea

rly shows the 14-year -old g irl was overc ome by fea r and the sheer prese nce of her fathe r committing the offe nses that resistanc e need not have been established in order

-9-to demonstrate the use of force or threat of forc e. Id. ¶ 35 The instant case is distinguishable from People v. Vasquez
, 2 3 3 I l l

. Ap p

. 3d 517, 599 N.E.2d 523 (1992), a case cited by defe ndant for support. In Vasquez
, this court reve rsed the defe ndant’s convic tions for two instances of criminal sexual assault where the evidenc e of forc e was insufficient to sustain those co n v i ct i ons. The rele vant fac ts in Vasquez demonstrated that the victim wa s a 13-year -old foster c hild who w as “for ced” to e ng ag e in
two oral sex acts with the defendant. On both occa sions, the defe ndant pushed the ba ck of the victim’s head onto the defe ndant’s ere ct p en i s

. During the first incident, the victim willingly entered the defe ndant’s car and rema ined inside afte r being “for ced” to orally pleasure t h e defe ndant even when the defe ndant exit ed the car to urinate. The victim also allowed the defe ndant to drive him home. The victim did not attempt to obtain assistance nor repor t the i ncident. The victim testified that the defenda nt did n o t threaten hi m and he did
not believe the defe ndant meant him any harm. Severa l months later, the victim ag ain
encounte red the defe ndant and, in an eff ort to avoid further incidents with the defe ndant, the victim sug g est ed a location under a bridg e or viaduct wher e they could talk. After ag ain being “for ced” to eng ag e in oral sex, the victim rema ined at the sug g ested location while the defe ndant urinated. In addi t i o n , the victim did not aler t passer sby to any

thing or seek assistance

. The victim even followed the defe ndant to another seclude d are a behind a bush. Id. at 519-29. The Vasquez court c oncluded the vic tim’s testim ony that he wa s “forced”to eng ag e in the oral sex acts was belied by the evidenc e and that the victim’s at t empts at resistanc e would not have been f oolish or useless; rather, “ such re sistance would pr obably have be en succ essful.” Id. at 528. ¶ 36 In the case befor e us, T

. V. did not have an opportunity to esca pe the sexual assaults, which b ega n wh ile T.V. was sleeping ; there was no brea k in the series of offe nses. T.V. testified that she was afr aid when she awoke to find her fathe r with his head betwee n her leg s and his mouth on her vag ina. Moreove r, defe ndant positioned himself on top of T.V. while perf orming the sexual assaults, even using his arm to hold her down at one point. There was no evidenc e pre sented that T.V.’ s attempts at resistanc e would haveproved suc cessf ul. ¶ 37 Def

endant briefly

contends the trial court err ed in r uling he was guilty of the same a cts of penetration, namely
, his mouth, fing er and penis to T.V.’s vag ina, under the th eories of liability that T

. V. wa s “unable to understand the nature of the act” and “unable to g ive knowing consent.” 720 I L CS 5/12-13(a)(2) (West 2006)

. Def endant argues that T.V.’s ag e and testimony demonstrate she was able to understand the nature of the act s an d t hat the theory of liabi l i ty “unable to g ive knowing consent” is rese rved for situations wher e an otherwise competent person temporarily was incapa ble of g iving consent beca use the assault

occur red while the victim wa s unconscious, asleep, or sever ely intox icated and the acts for which def endant wa s convicted oc curr ed while T.V . was a wake

. ¶ 38 In reg ard to the theory of l iability of “unable t o understand the nature of the acts,” this
court has said that mere ly demonstrating “the victim understood the phy sical nature of sexual relations is not sufficie nt to establish that the victim c omprehe nded the social and persona l
costs involved.” People v. Blake
, 287 I ll. App

. 3 d 4 8 7
, 493, 678 N.E.2d 761 (1997). We

rec ognize that this theory of liability is often raised wher e the v i ct i m h ad a mental impairment; howeve r, we are reminded that the t ri al co urt assessed the victim during her

-10-testimony and conclude d that she was unable to understand the nature of the sexual acts. See

Jack son , 358 I ll. App. 3d at 941. T.V. was 14 year s old at the time of the sexual assaults and testified that her

“daddy” put “his mouth” on her vag ina, “took his fing ers a nd put them in [her] vag ina,” and “pene trated [her] vag ina with his penis.” Def endant has not demonstrated that, when viewed in a light most favor able to the State, the evidenc e was so unrea sonable, improbable, or unsatisfac tory to raise a rea sonable doubt as to his guilt that T.V. was unable to understand the nature of thesexual acts. ¶ 39 In reg ar d t o the theory of liability of “unable to g ive knowing consent,” this court ha s said:
“ ‘Consent’ implies a willingness, voluntariness, fre e wi l l
, rea soned or intelligent choice
, phy sical or moral power of acting
, or an ac t i ve act of concurre nce (as opposed
to a passive assent) unclouded by fra ud, duress, or mistake. [C itation.] The ability to g ive knowing consent should involve more than measuring complainant’s I Q or ability to phy sically resist defe ndant. Knowing consent requir es us to examine all of the circ umstances to see if defe ndant knowingl y ex er cised such control over complainant that a trier

of fa ct could find that c omplainant did not submit t o the sexual advanc es of defe ndant voluntarily
, int el lige ntly
, and by an active concur renc e.” People v. W

hitten
, 269 I ll. App. 3d 1037, 1044, 647 N.E.2d 1062 (1995). There was absolutely no evidenc e prese nted that T.V. was able to voluntarily
, intelligently
, and actively concur with defe ndant’s sexual advanc es. On two separ ate occa sions, T.V. was awoke n to find her f

ather in the midst of the unbroke n series of sexual assaults. Defe ndant has not demonstrated that the evidenc e, when viewed in a light most favorable to the State,

was so unrea sonable, improbable, or unsatisfac tory to raise a re as o n able doubt as to defe ndant’s guilt that T.V. was unable to g ive knowingconsent to the sexual acts.

¶ 40 I I I . Ineff ective A ssistance of Counsel ¶ 41 Def

endant conten d s his counsel was ineffe ctive for failing to file a motion to suppress his inculpatory statements. Def endant argues he invoked his right to rema in silent pursuant t o Mi randa and the inculpatory statements resulted from subsequent interrog ations in violation of his Miranda rights. ¶ 42 To establish an ineffe ctive assistance of counsel claim, the defe ndant must demonstrate
t he counsel’s repr esentation fell below an objective standard of rea sonablene ss and h e suffe red resulting prejudice such that there is a rea sonable probability that, but for the

co u n s el ’s err ors, the result of the proce eding would have been different. Strickland v. W ashington
, 466 U.S. 668, 694 (1984). A defe ndant must overc ome the strong presumption that the trial counsel’s challeng ed actions wer e a matter of sound trial strategy

. Id. at 689-90. A defendant must satisfy both prong s of the Strickland test; howeve r, whe re pr ejudice ha s not been demonstrated, a court need not deter mine whether the counsel’s perf ormanc e was defic ient. People v . Harris , 206 I ll. 2d 293, 303, 794 N.E.2d 181 (2002). ¶ 43 “[I ]f a defe ndant takes the witness stand and admits in substance matters contained in a confe ssion or statement h e has g iven the police, this testimony will be considere d to have waived or made harmless any error that may have occur red in the admission of the

-11-confe ssion or st atement.” People v. Auilar
, 59 I ll. 2d 95, 100, 3 1 9 N.E.2d 514 (1974); see

also People v. Schuld
, 175 I ll. App. 3d 272, 282, 529 N.E.2d 800 (1988); People v. Barr
, 85 I ll. App. 3d 992, 998, 407 N.E.2d 782 (1980); People v. Villalobos
, 78 I ll. App. 3d 6, 15, 396 N.E.2d 1081 (1979)

. ¶ 44 Def

endant testified to the details of the sexual assaults, confirming the substance of the
statements he made to the detec tives and ASA Kross. Most notably
, defe ndant testified that he penetr ated T.V.’s vag ina with his mouth, f inger, and penis on both da tes at issue. These

wer e the actions for which he was convicted. Moreove r, defe ndant admitted on the stand that the charg es wer e acc urate and “most” of what he told ASA Kross was the truth. We are not persua ded by defe ndant’s argument that we should not find waiver or harmless err or wher e he was forc ed to take the stand beca use his statements wer e admitted. Def endant’ s testimony

was inconsistent. He testified that he was convinced to make the statements in order to

rec eive thera

peutic treatment; h o we ver, he testified consistently with the substance of the sexual assaults. It was t h e t ri al court’s duty to resolve the inconsistencies, and the court

re solved them ag ainst defe ndant. See Jack son , 358 I ll. App. 3d at 941. C o n t ra ry t o defe ndant’s arg

ument on appeal
, he never testified reg arding the inacc urac ies in the
statements. Bla

nket, ambiguous testimony providi n g th a t “ mo s t” o f th e statement was corr ect and that the d et ec tives knew the truth does not demonstrate defe ndant was obligated to testify

. We conclude defe ndant’s testimony waiv ed o r made harmless the err or, if any , in defe nse counsel’s decision not to file a m o tion to suppress defe ndant’s statements. Consequently , defe ndant’s inef fec tive assistance of counse l claim fails.

¶ 45 IV. Presente nce D etention Credit ¶ 46 Def

endant finally contends he is entitled to 707 days of prese ntence detention cre dit. The State contends we should not consider the printed Interne t pag e showing his time in custody that defe ndant attac hed to his appellate brief. ¶ 47 A defe ndant is entitled to rec eive cre dit ag ainst his sentenc e for the time spent in c ustody

on the offe nse for which he was convicted. 730 I L CS 5/5-8-7(b) (West 2006). This court may take judicial notice of the De p artment of Correc tions’ rec ords beca use they are public documents. People v . Hill , 408 I ll. App. 3d 23, 32, 945 N.E.2d 1246 (2011). ¶ 48 Def

endant was arr ested on September 27, 2007, and rema ined in custody until he wa s sentenc ed on September 3, 2009. The State does not challeng e these dates nor that defe ndant

rema ined in custody for that entire period for the offe nses on which he was convicted in this

ca s e. We, there fore
, conclude defe ndant is entitled to 707 day s of prese ntence detentio n

cre dit. We instruct the cler k of the court to corr ect defe ndant’s mitti mus to ref lect the cre dit.

¶ 49 CONCLUSI ON ¶ 50 We aff

irm defe ndant’s convictions and sentenc e. W e co n clude there was indepe ndent evidenc e supporting defe ndant’s conviction for digital penetr ation on September 14, 2007. We find the evidenc e demonstrated defe ndant used forc e or threatened the u s e o f force in

co m m i t t i n g t he sexual assaults and that T.V. was unable to understand the nature of the offe nses and unable to g ive know ing consent t o the s exual advanc es. W e further conclude

-12-that defe nse counsel was not ineffe ctive. Finally
, we instruct that defe ndant rec eive 707 day s

of pre sentenc e dete ntion credit.

¶ 51 Affir

med; mitti mus corre cted.

-13-