Background
Duane Upchurch was charged with predatory criminal sexual assault of a child and aggravated criminal sexual abuse based on alleged conduct involving L.K. and K.L., both of whom were under 13 when the offenses occurred between 2004 and 2008. After signing a written jury waiver and confirming in court that he understood his right to a jury trial, Upchurch proceeded to a bench trial.
The trial court found Upchurch guilty of two counts of predatory criminal sexual assault involving L.K. and one aggravated-criminal-sexual-abuse count involving each victim. Two additional counts were dismissed after the State’s case. The court ultimately imposed an aggregate 25-year prison sentence. On appeal, Upchurch challenged the validity of his jury waiver and alleged that trial counsel was ineffective for not presenting expert testimony and not alerting the trial court to a pending petition for leave to appeal in People v. Kidd.
The Court’s Holding
The appellate court affirmed, holding that Upchurch knowingly and understandingly waived his right to a jury trial. Illinois law requires no prescribed set of jury-waiver admonitions. Upchurch was represented by counsel, signed a written waiver, said that he understood what a jury trial was, denied receiving threats or promises, and did not object as the case proceeded toward a bench trial.
The court also rejected both ineffective-assistance claims. Counsel reasonably chose to attack the complainants’ recollections through cross-examination and argument rather than expert testimony, thereby avoiding a possible reopening of the State’s previously excluded other-crimes evidence. The proposed expert’s opinions improperly addressed witness credibility, and her medical analysis did not account for the statute’s broad definition of penetration. Kidd was inapplicable because Upchurch’s predatory-assault counts alleged sexual penetration, which did not require an allegation that he acted for sexual gratification; counsel therefore was not ineffective for omitting a meritless challenge.
Key Takeaways
- A valid Illinois jury waiver does not require detailed admonitions about jury selection, unanimity, or the Zehr principles when the record otherwise shows a knowing and understanding waiver.
- Counsel’s decision not to call an expert was reasonable trial strategy, particularly because the proposed testimony addressed credibility, offered little medical value, and risked opening the door to excluded other-crimes evidence.
- People v. Kidd did not apply because Upchurch was charged under a statute requiring sexual penetration, not under the later statutory alternative requiring sexual contact for the purpose of gratification.
Why It Matters
The order illustrates that Illinois courts assess jury waivers from the full record rather than through a mandatory script. A signed waiver, an in-court acknowledgment, representation by counsel, and the defendant’s conduct may collectively establish a valid waiver.
It also reinforces the deference afforded to strategic decisions about expert witnesses and distinguishes penetration-based predatory-assault charges from contact-based charges that must allege a sexual-gratification purpose. The order was issued under Illinois Supreme Court Rule 23 and is nonprecedential except as Rule 23(e)(1) permits.