People v. Chromik

No. 3--09--0686
Opinion filed March 29, 2011
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2011
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 10th Judicial Circuit,
) Peoria County, Illinois
Plaintiff-Appellee, )
)
v. ) No. 08--CF--1090
)
STEPHEN CHROMIK, )
) Honorable James E. Shadid,
Defendant-Appellant. ) Judge, Presiding.
JUSTICE SCHMIDT delivered the judgment of the court, with
opinion.
Justices Lytton and McDade concurred in the judgment and
opinion.
OPINION
The State charged defendant, Stephen Chromik, with one count
of criminal sexual assault (720 ILCS 5/12-13(a)(4) (West 2008))
and one count of aggravated criminal sexual abuse (720 ILCS 5/12-
16(d)(West 2008)) for conduct that occurred with a minor, K.B.
The case proceeded to jury trial in the circuit court of Peoria
County. The jury acquitted defendant of the criminal sexual
assault charge but convicted him of aggravated criminal sexual
abuse. This is defendant's direct appeal from that conviction in
which he claims the evidence adduced at trial was insufficient to
convict him beyond a reasonable doubt, the trial court
impermissibly infringed on his right to confront witnesses and
remain silent, the trial court erroneously admitted both prior
bad acts evidence and a document containing text messages, and
his sentence is improper.
FACTS
The bill of indictment charged that defendant committed
criminal sexual assault in that on or about May 9, 2008, to June
1, 2008, he knowingly performed an act of sexual penetration with
the victim, a person over 13 years of age but under 17 years of
age, while standing in a position of trust, authority or
supervision to the victim. It further charged that during that
same time frame, defendant committed aggravated criminal sexual
abuse by knowingly committing an act of sexual conduct with the
victim for the sexual arousal or gratification of the defendant
or victim, who was at least 13 years of age but under 17 years of
age when the act was committed and the defendant was at least
five years older than her.
At trial, the victim, K.B., testified that her date of birth
is September 25, 1991, and she attended Metamora Township High
School during the 2007-08 school year. She played on the varsity
2
soccer team in the spring of 2008, a time when she was 16 years
of age. Defendant was her instructor in home economics for each
semester of the 2007-08 school year and was also the assistant
varsity soccer coach. She considered defendant to be unfriendly
to her in the fall of 2007. His unfriendly conduct continued
through the spring semester of 2008.
K.B. noted that on May 1, 2008, prior to a soccer game, she
went to a shed where her team kept soccer equipment to gather it
for their game. She walked to the shed with defendant, began
gathering equipment for the game, and discussed the team meal
with defendant. While in the shed, defendant asked K.B. "what
[she] was good at." She inquired as to what defendant was
talking about when defendant told her to "come here." After she
walked over to him, defendant grabbed her by the belt, pulled her
toward him, and put his hands up her shirt. His hands were under
her shirt near her ribs before she "pushed his hands down."
K.B. continued by noting that after she pushed defendant's
hands down, he put them back on her belt loop "before he started
putting them down my pants." His hands made it "several inches
[down] before" she "pulled his hands out." The victim noted that
immediately after this incident she "was really scared,
intimidated." Nevertheless, she asked defendant to help her
carry equipment from the shed. She did not report the incident
that day. She went to the soccer game. Later that evening, she
told her friend A.H. about the incident. A.H. did not testify at
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trial.
K.B. also testified that one week later, on May 9, 2008, her
soccer team played their biggest rival and lost the match.
Despite having plans to go to the house of a friend, she went
home instead and received a call from defendant. Defendant asked
her to meet him that evening at a gas station. She did, but
while at the station neither exited their vehicles. Per his
instructions, she followed defendant to his apartment in Peoria.
The victim noted that when they arrived at defendant's
apartment, they watched the highlights of the soccer game on
television. After that, defendant took out a deck of cards, two
fifths of alcohol, and two shot glasses so they could play a
drinking game. Over the next 30 minutes, she consumed five shots
of vodka with the defendant. Defendant then began kissing her.
He took off her pants and underpants and touched her vagina,
legs, stomach and "all over the rest of [her] body." The next
thing K.B. remembers is waking up between 6 and 7 a.m. the next
morning to the sound of defendant's alarm clock. When she awoke,
she was naked and defendant was asleep next to her also naked.
At trial, K.B. did not recall whether she had intercourse
with defendant that night. She understood the meaning of
intercourse and had "had sex" before that night. However, she
did not remember having a feeling or indication that she had
engaged in sex with defendant that night. She saw no blood,
semen or dried fluids on the bed. When she awoke, she did not
4
shower, but put on her clothes from the night before and went to
her car to retrieve running clothes as she was scheduled to run
in the Race for the Cure that morning.
K.B. indicated she changed into her running clothes in
defendant's apartment. She felt sick to her stomach, but ran the
three-mile race anyway. She and defendant drove to the race in
their own vehicles and, when she approached the spot where
contestants were to park and gather, she veered off to take a
slightly different route than defendant so the two would not
arrive at the same time. She ran the 5-kilometer race in
approximately 24 minutes, besting 12 of the 15 other girls from
her soccer team that also ran in the race.
The victim continued her testimony by noting that
defendant's behavior toward her at school did not change after
the night in his apartment. He was still mean to her and she
still feared and was intimidated by him. He asked her several
times to get together, which she did not like. K.B. told her
friends A.H. and L.H. about the situation with defendant.
K.B. testified that she spent a second night at defendant's
apartment approximately a week or two after the first night. She
could not recall the specific date, but knew it was an evening
she was working in a restaurant and had been released early.
Defendant asked her to come to his apartment that evening to
create going-away presents for departing senior soccer players.
K.B. stated she went to defendant's apartment under compulsion of
5
her fear of him. She believed, in advance, that there would be
alcohol and sexual advances. Upon her arrival, defendant had a
large drink with strong alcoholic content mixed for her.
Intimidation led her to drink the cup as she was told.
The victim noted that after she helped defendant create
"senior pages," he began kissing and touching her. Defendant
removed her clothing and the two had intercourse. While she had
partial memory loss from the alcoholic consumption, she
specifically remembered having intercourse with defendant the
second time she was at his apartment.
K.B. continued her testimony, indicating that following the
second evening, defendant treated her the same way he always had.
He was mean to her and she still felt threatened and intimidated
by him. Then, in early June of 2008 while at a graduation party,
she discussed the events that took place in the equipment shed
with a graduating senior. The graduating senior then reported
the situation to the school administration, which triggered an
investigation.
The victim testified that she is familiar with defendant's
telephone number as he sent it to her via Facebook. She ex-
changed a number of text messages with defendant. She presented
a number, but not all, of these messages to the administration at
Metamora Township High School. In the principal's office, with
the principal and superintendent present, K.B. read text messages
she received from defendant. As she read the messages, the
6
principal typed their content into a computer. It appeared to
her that the principal accurately typed what she read to him.
She read each message to him, including the date and time each
message was sent. Once finished, the principal printed out the
document, she read it, and signed it. She did not save and
dictate every message received from defendant and she deleted all
the messages she sent him.
K.B. identified photographic exhibits as pictures taken of
defendant's apartment. She remembered defendant's bed was
smaller than a queen and that it had green sheets. K.B. de-
scribed the layout of defendant's apartment and noted he owned a
couch with one arm missing. She noted defendant had an alarm
clock in his bedroom and she could see at night by the light of
the bright alarm clock. Clothing was piled up in bunches on the
floor.
Finally, K.B. admitted her trial testimony differed from her
statement given when interviewed by police in July of 2008 and
from her testimony given to the grand jury. Before the grand
jury, K.B. testified that she had sexual intercourse with
defendant on two separate occasions; at trial she could not
recall whether she had intercourse the first night she stayed at
defendant's apartment.
Gregory Christy testified that he has been the principal of
Metamora Township High School for the past 21 years. Defendant
taught and coached there in the 2007-08 school year. One day, a
7
guidance counselor came to Christy regarding allegations raised
by some of the victim's friends. A June 3, 2008, meeting took
place in which K.B. discussed the allegations. This meeting, the
first to Christy's knowledge, involving the victim and school
officials, was attended by the two senior students, the guidance
counselor, K.B. and Christy. Christy and the superintendent then
met with K.B. and her mother and father two days later.
Christy acknowledged that he is a mandated reporter under
the Abused and Neglected Child Reporting Act (325 ILCS 5/1 et
seq. (West 2008)) and that, as such, he has a duty to immediately
notify the police or the Department of Children and Family
Services (DCFS) if "something has occurred." He did not report
this incident. The superintendent ultimately reported the
incident, but Christy did not know on what date the reporting
occurred.
Christy also met with defendant and the superintendent at
defendant's request on June 3, 2008. Christy asked defendant if
any calls or communication had taken place between defendant and
the victim. Defendant told Christy that there had been
communication between the two but only regarding soccer
scheduling.
The principal concluded his testimony by discussing the
document he created that cataloged the text messages from
defendant. His testimony mirrored the victim's in that he
recalled she read the messages to him while viewing her phone,
8
and he transcribed what she read. He acknowledged that his
spell-checking function on the word processing program being used
had changed some of the spellings of what he typed. He could not
identify which messages on the document were affected by that
spell-check and which were not. Neither he nor the
superintendent compared the document to the messages on K.B.'s
phone. K.B. did compare the document to the messages and he
relied on her truthfulness for that purpose.
Kenneth Maurer testified that he is the superintendent of
the Metamora Township School District. He met with defendant and
the victim concerning this matter. Defendant told Maurer that he
spent approximately 10 to 15 minutes in the shed with K.B. which
violated one of his own rules in that he was alone with a student
for too long. He informed Maurer that nothing inappropriate
occurred and the two merely bantered back and forth. Maurer
identified photocopies of text messages sent from the victim to
defendant after the victim had been instructed not to have any
contact with defendant.
Maurer noted in his testimony that he did not report any
activity to either the police or DCFS for more than 30 days after
first hearing of the incident in the shed, even though he is a
mandated reporter pursuant to statute. He stated his reporting
duties are triggered if "we have evidence of sexual relationship
between an adult or a staff member with a child." When asked if
"an allegation that a teacher has attempted to place his hands up
9
her shirt and his hands in her pants" would "trigger an immediate
report to DCFS," Maurer replied, "It would if she was consistent
in that allegation. She wasn't."
Detective David Nelson testified that he is a juvenile
investigator employed by the Peoria police department. DCFS
notified him that it was initiating an investigation into contact
between K.B. and defendant. During his interview with defendant,
defendant admitted to contacting K.B. by phone and texting.
Defendant informed Nelson that he did not touch K.B. in the shed
at Metamora Township High School.
Detective Nelson indicated he obtained defendant's cell
phone records from Sprint. The records indicate that from May 3,
2008, to July 8, 2008, exactly 386 calls and text messages were
sent between the parties. Defendant initiated contact, via phone
call or text message, with K.B. 180 times and K.B. initiated
contact with defendant 186 times. On May 9, 2008, the day of the
soccer match with Notre Dame, there were eight contacts between
the two. On May 10, 2008, there were 18 contacts. The highest
volume of daily calls occurred on June 3, 2008, the date the
victim first met with the principal and superintendent. Ninety-
six contacts took place that day with the defendant initiating 60
of those contacts and K.B. the other 36. Nelson noted that he
compared the document created by principal Christy to defendant's
cell phone records and the dates and times of the text messages
Christy cataloged matched Sprint's records for outgoing text
10
messages from defendant's phone.
Detective Nelson testified that the Peoria police department
employs personnel that could have conducted a forensic analysis
of K.B.'s or defendant's cellular telephone in an attempt to
retrieve deleted messages. That was not done in this
investigation even though he knew messages had been deleted.
Defendant testified on his own behalf. He denied that he
ever had inappropriate contact with K.B. in the equipment shed.
He indicated the shed is not in a secluded area of the school but
instead near the track where people could see into it throughout
the day. He never had sex with K.B. and she has never been in
his apartment.
Defendant reviewed the text messages that K.B. read to the
principal and disagreed with the testimony of K.B. as to what
they meant. He admitted that he sent text messages that read:
"Some fake crying would help, just say
you made it up and you don't want to talk
about it anymore. You have to say nothing
happened because they think something did."
"Mr. C is tricky and gay."
"Don't let him and your dad pressure you
again."
"I know you don't want to lie, but Mr. C
is almost making you because he's dumb."
"I got a call from the school this morning
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but didn't answer it or call back."
Defendant claimed his only intent in sending messages to K.B. was
to encourage truthfulness. He noted the unsaved text messages
between the two discussed K.B.'s fear of being disciplined after
becoming drunk at a party with a senior soccer player.
Defendant noted that his apartment experienced flooding
throughout the month of May of 2008, leaving the carpets wet and
an overpowering smell within the apartment. He discussed this
problem with his apartment manager, Tonya Brewer, and maintenance
worker Allen Adcock. He would frequently leave the drapes and
windows open in his garden-level apartment and noted that
everything K.B. described about his apartment could be seen from
the outside by looking through the windows. He never owned a
brightly lit alarm clock and uses the alarm on his cellular
telephone to wake up. He owned navy blue sheets and never owned
green sheets. He never had clothing bunched up anywhere on the
floor in May of 2008 as he had a metal clothing stand in his
bedroom for it. He neither owned shot glasses nor had any hard
liquor in his apartment.
Defendant continued by indicating that in May of 2008, he
executed a contract for the purchase of a home and was in a long-
term, serious relationship with a girlfriend. He had purchased a
new car and was committed to staying employed in the area.
On cross-examination, defendant admitted that at the time of
the incidents, he had none of the other girl soccer players'
12
telephone numbers and K.B. was the only one he ever called.
Tonya Brewer testified that she is the resident manager of
the apartments where defendant lived in May of 2008. A Web site
contained a layout of a typical apartment floor plan for the
complex. Defendant's apartment is located on the lower level and
had continual maintenance problems, including backup and overflow
of the garbage disposal. An underground leak adjacent to the
building caused continual soaking of defendant's apartment. The
flooding became so bad that she requested permission to move
defendant to another apartment, but was denied by her supervisor.
Throughout the month of May of 2008, a foul odor emanated from
defendant's apartment.
Allen Adcock testified that he was a maintenance employee at
the time defendant lived in the apartment building. He performed
maintenance work on defendant's apartment several times and was
in it two or three times per week during the month of May of
2008. One could not walk from the bedroom to the bathroom
without getting wet as the carpet was continually soaked.
Stephanie Ramsey testified that she dated defendant for 2½
years from December of 2005 to July of 2008. At one time, they
planned to marry. She visited defendant's apartment throughout
the month of May of 2008 and described the water leak and bad
odor. In May of 2008, Ramsey and defendant celebrated a dating
anniversary on the day of the Race for the Cure, attended a
wedding, attended commencement at Bradley University,
13
participated in a marathon in Rockford, Illinois, and celebrated
Mother's Day with her parents. She had access to defendant's
apartment via her own key and would routinely let herself in when
he was not there, as well as visit him unannounced. His
apartment had blue and green accessories in his bathroom,
including a shower curtain that had been cut too short. He did
not have an alarm clock. His sheets were navy blue, and to her
knowledge, he had no shot glasses in the apartment.
Defendant rested following Ramsey's testimony. Ultimately,
the jury returned a verdict of guilty as to the crime of
aggravated criminal sexual abuse and acquitted defendant of the
crime of criminal sexual assault. This is defendant's direct
appeal from his conviction for aggravated criminal sexual abuse.
ANALYSIS
Defendant raises eight issues on appeal: (1) whether the
evidence adduced at trial was sufficient to prove him guilty
beyond a reasonable doubt; (2) whether he was denied his right to
confront and cross-examine witnesses against him when the court
ruled that he could not cross-examine the victim on the issue of
her prior sexual conduct; (3) whether his right to remain silent
was violated when the prosecutor remarked that the "defendant can
testify what his version of events are"; (4) whether the trial
court improperly admitted evidence of prior bad acts regarding
the incident in the shed at Metamora Township High School; (5)
whether the trial court erred in refusing to give a limiting
14
instruction regarding uncharged conduct; (6) whether the trial
court improperly admitted the document that cataloged the text
messages; (7) whether cumulative error deprived defendant of a
fair trial; and (8) whether the trial court committed error in
finding his Tennessee aggravated assault conviction mandated a
Class 2 felony sentence even though his conviction for aggravated
sexual abuse conviction is a Class 3 felony.
A. Sufficiency of the Evidence
When reviewing a challenge to the sufficiency of the
evidence, we consider, after viewing the evidence in the light
most favorable to the prosecution, whether any rational trier of
fact could have found the essential elements of the crime beyond
a reasonable doubt. People v. Collins, 106 Ill. 2d 237 (1985).
It is the trier of fact's responsibility, not ours, to resolve
any conflicts in the testimony, weigh the evidence, and draw all
reasonable inferences from it. People v. Howery, 178 Ill. 2d 1
(1997).
To convict defendant of the offense of aggravated criminal
sexual abuse (720 ILCS 5/12-16(d) (West 2008)) as charged, the
State needed to prove that K.B. was at least 13 years of age but
under 17 years of age, that defendant was at least 5 years older
than her, and that he committed an act of sexual conduct with
her. 720 ILCS 5/12-16(d) (West 2008). The term "sexual conduct"
means any intentional or knowing touching or fondling by the
accused, either directly or through clothing, of the sex organ,
15
anus or breast of the victim for the purpose of sexual
gratification or arousal of the victim or the accused. Illinois
Pattern Jury Instructions. Criminal, No. 11.65D (4th ed. 2000)
(hereinafter, IPI Criminal 4th No. 11.65D)
Defendant acknowledges that the State proved K.B. to be
between the ages of 13 and 17 and him to be more than 5 years her
elder. Defendant also acknowledges that K.B.'s testimony, in and
of itself, establishes he committed an act of sexual conduct.
However, he claims this case involves a scenario where the
"testimony is contrary to the laws of nature, or universal human
experience, [and therefore,] this court is not bound to believe
the witness." (Internal quotations marks omitted.) People v.
Wright, 147 Ill. App. 3d 302, 318 (1986) (quoting People v.
Coulson, 13 Ill. 2d 290, 297 (1958)). Arguing that the "only
evidence that suggests sexual abuse occurred came from the
testimony of the victim," and that the "story told by the victim
is simply incredible, defies logic and is contrary to human
nature," defendant claims we should, therefore, find that no
sufficient evidence existed upon which to base his conviction.
Defendant comes to this conclusion by claiming the victim's story
concerning the first night in his apartment is not credible as
she "did not report the first night of fear induced drinking
games and sex. Weeks passed before she was overcome by fear and
compulsion to once again robotically obey the command of the
defendant and drive to his apartment at night for more alcohol
16
drinking and compelled sex."
Defendant cites K.B.'s failure to detail every
characteristic of his apartment as evidence that she had never
been there. Most notably, he notes she failed to mention the
moist carpets, foul smell and the "comically short shower
curtain." As evidence contrary to K.B.'s testimony existed
concerning the color of his bed sheets and alarm clock, he
submits her entire story cannot be believed. We disagree with
defendant's characterization of the evidence.
Initially, we note that defendant is clearly requesting that
this court reweigh the evidence, retry the defendant and find in
his favor. We are not permitted to engage in such a task.
People v. Givens, 237 Ill. 2d 311 (2010).
Defendant ignores significant evidence that corroborates
K.B.'s version of the events. Most notably, K.B. indicated that
the night of the first sexual encounter, "he called and told" her
to meet him at the gas station from which she followed him to his
apartment. The soccer game ended "sometime around nine" that
night and the telephone call came thereafter. Records obtained
from Sprint and entered into evidence clearly show that at 9:07
p.m. on the night of May 9, 2010, defendant initiated a phone
call to K.B.'s cell phone. He initiated another phone call to
K.B. at 9:28 p.m. that night. One minute later, she called him
back. At 9:32 p.m., he called her phone number again. The next
morning, at 7:29 a.m., defendant initiated another phone call to
17
K.B. This fact corroborates her testimony that early in the
morning, he called her to tell her that he would not be turning
off into the parking lot where they were to meet for the race so
that the two would not arrive at the same time.
While defendant claimed he called K.B. before the race to
find out where the team was having breakfast, instead of calling
the head coach, it was certainly for the jury to determine
whether or not his statement or K.B.'s statement was more
credible. Defendant acknowledged that there were 18 phone
contacts between himself and K.B. on the day of the Race for the
Cure, many occurring well after breakfast. Defendant also
acknowledged the phone contact he had with K.B. on the night
before the Race for the Cure, but offered no explanation
concerning the content of those conversations. Defendant
admitted calling K.B. on the morning of the race, but claims he
only did so to determine the meeting place of the group.
Certainly, a reasonable jury could conclude that K.B.'s
testimony concerning the calls to and from defendant in that 12-
hour time frame was more credible. K.B. testified the calls at
night after the soccer match set up a rendezvous with defendant
and that the call in the early morning ensured she would not
arrive at the race contemporaneously with defendant. Defendant,
claiming not to know the location of the group's meeting place,
chose to call his 16-year-old player instead of the head coach.
Defendant acknowledged that he sent K.B. a text message on June
18
3, 2008, at 8:27 p.m. that read, "I told them I called you. Find
time to meet for Race For The Cure and for Survivor Day. That
was always spoke orally. You are the only number I have."
In reviewing defendant's challenge to the sufficiency of the
evidence, we must allow all reasonable inferences from the record
in favor of the prosecution. Givens, 237 Ill. 2d at 334. K.B.
testified to a course of sexual conduct she engaged in with
defendant. The jury weighed the credibility of both K.B. and
defendant. Despite defendant's assertion that she is beyond
belief, there is clearly enough evidence contained within the
record on appeal upon which a reasonable trier of fact could
conclude that the State proved the elements of the offense of
aggravated criminal sexual abuse beyond a reasonable doubt.
B. Defendant's Right to Cross-examination
Defendant argues that the trial court violated his right to
cross-examine K.B. when ruling that he could not question her
regarding previous sexual activity. We find no error occurred as
defendant had no right to question K.B. concerning her past
sexual activity. 725 ILCS 5/115-7(a) (West 2008).
Moreover, we note that even if we were to find that
forbidding defendant from cross-examining K.B. with respect to
her prior sexual experience was error, any error was effectively
cured when the jury returned a verdict of not guilty in favor of
defendant on the count alleging criminal sexual assault.
Defendant takes issue with the fact that K.B. answered "yes"
19
to the prosecutor's question asking if she "ever had sex before,"
and claims not allowing him to further explore that subject
violated his right to cross-exam K.B. The question went to the
victim's knowledge of sexual intercourse. The jury, however,
acquitted defendant of criminal sexual assault, the only count
that alleged defendant actually engaged in intercourse with K.B.
Any possible error was harmless. We can conjure up no
conceivable prejudice to defendant resulting from the victim's
testimony that she had sex before.
C. Defendant's Right to Remain Silent
Defendant claims his right to remain silent was violated
during principal Christy's testimony. Defense counsel asked
Christy, "So can you summarize what his statements were to you
and Mr. Maurer in that first meeting?" This question drew an
objection from the State in which the prosecutor commented, "I'll
object. Hearsay. Defendant can testify what his version of
events [is]." After the prosecutor's statement, the court
dismissed the jury. Defense counsel then stated his reply to the
hearsay objection and requested a mistrial, claiming the
prosecutor's statement equated to an impermissible comment on
defendant's right not to testify.
The prosecutor agreed that he should not have commented on
defendant's ability to testify but suggested to the court that
any error can be cured by "an instruction that will, can be added
to the jury instructions that the jury is not to hold the
20
defendant, or hold it against the defendant for not testifying."
Defense counsel acknowledged that the prosecutor did not act
"with any malice or ill will" but, nevertheless, believed no
instruction could cure the error and renewed his request for a
mistrial.
The trial court denied that request and gave defense counsel
the choice of having a limiting instruction issued or not having
one issued for fear it would draw more attention to the matter.
Defense counsel chose the former and the trial court issued an
instruction directing the jury to disregard the statement.
Despite the limiting instruction, defendant claims the
prosecutor's statement "effectively forced" him to testify and,
as such, we should grant him a new trial. The State disagrees
and claims that defendant has waived the issue when he chose to
testify rather than assert his right to not testify.
Improper remarks by a prosecutor generally do not constitute
reversible error unless they result in substantial prejudice to
the accused. People v. Johnson, 119 Ill. 2d 119 (1987).
Potential prejudice associated with improper remarks of a
prosecutor is usually cured by "the prompt sustaining of an
objection combined with proper jury instruction." People v.
Johnson, 208 Ill. 2d 53, 116 (2003).
The State submits that any error that did occur was cured by
the trial court's instruction. We agree. Defense counsel
admitted, as noted above, that the prosecutor's remark was an
21
innocent misstatement of the prosecutor's objection. An
objection that the trial court ultimately sustained.
The State also notes that should we find that the
instruction did not cure the error, then defendant has waived his
right to assert it. The State notes defendant chose to testify
and waive his right not to testify. For us to hold that by
testifying he did not forfeit his right to raise this issue, the
State submits, would allow defendant to "run his story by a jury
in hope of seeing what, if anything, would stick. If the jury
accepted none of his testimony, defendant loses nothing because
nothing was at stake, since he would be entitled to an automatic
new trial. On the other hand, if the jury acquitted him on some
but not all charges [like what happened here], the defendant
gains, thereby limiting his conviction exposure on trial." We
agree and further find defendant has waived this issue by
testifying.
"The fifth amendment speaks only of compulsion. 'It does not
preclude a witness from testifying voluntarily in matters which
incriminate him. If, therefore, he desires the protection of the
privilege, he must claim it or he will not be considered to have
been "compelled" within the meaning of the Amendment.' " People
v. Snow, 403 Ill. App. 3d 734, 738 (2010) (quoting United States
v. Monia, 317 U.S. 424, 427 (1943)).
D. Other Crimes/Prior Bad Acts
Defendant claims the court committed reversible error when
22
allowing evidence to be introduced concerning the incident in the
equipment shed. This, defendant claims, was impermissible prior-
bad-acts evidence. We review the question of whether other-
crimes or prior-bad-acts evidence should have been admitted under
the abuse of discretion standard. People v. Gonzalez, 379 Ill.
App. 3d 941 (2008); People v. Hansen, 313 Ill. App. 3d 491
(2000).
Evidence of other offenses is admissible if it is relevant
for any purpose other than to show the defendant's disposition or
propensity to commit the crime charged, including modus operandi,
intent, identity, motive, or absence of mistake. This list is
not exclusive. People v Lear, 143 Ill. 2d 138 (1991); People v.
Bedoya, 325 Ill. App. 3d 926 (2001). Concerning sexual crimes,
evidence of prior sexual activities and bad acts can be admitted
to show a defendant's intent, design, course of conduct, as well
as to corroborate a victim's testimony concerning the charged
offense. People v. Foster, 195 Ill. App. 3d 926 (1990).
Other-crimes or prior-bad-acts evidence, though relevant,
must not become a focal point of the trial. People v. Boand, 362
Ill. App. 3d 106 (2005). Courts have warned about the dangers of
putting on a trial within a trial with detail and repetition
greatly exceeding what is necessary to establish the particular
purpose for the evidence. People v. Bartall, 98 Ill. 2d 294
(1983).
"The law is well established that, in a trial for sexual
23
offenses, evidence of a defendant's prior sexual activities with
the same child is an exception to the general rule that a
defendant's prior bad acts are not admissible, and such evidence
is admissible to show the relationship and familiarity of the
parties, to show the defendant's intent, to show the defendant's
design or course of conduct, and to corroborate the victim's
testimony concerning the offense charged." Foster, 195 Ill. App.
3d at 949. Where evidence of prior bad acts is used to prove
modus operandi or a common design, there must be a high degree of
identity between the facts of the two crimes. People v. Illgen,
145 Ill. 2d 353 (1991). When offered for some other purpose,
mere general areas of similarity will suffice. Illgen, 145 Ill.
2d at 373. As factual similarities increase, so does the
relevance, or probative value of the other crime evidence.
Donoho, 204 Ill. 2d 159, 184 (2003). "Unfair prejudice" speaks
to the capacity of some concededly relevant evidence to lure the
fact finder into declaring guilt on a ground different from proof
specific to the offense charged. Old Chief v. United States, 519
U.S. 172, 181 (1997).
A mini-trial can be avoided by carefully limiting the
details of the other crime to what is necessary to illuminate the
issue for which the other crime was introduced. People v.
Nunley, 271 Ill. App. 3d 427, 432 (1995). When the unfair
prejudice is excessive, a limiting instruction will not save
admissibility of the evidence. Nunley, 271 Ill. App. 3d at 433.
24
Even if the trial court fails to conduct a balancing test and
properly balance the probative value of the other-crimes evidence
against the unfair prejudice, "[r]eversal is not warranted if it
is unlikely the error influenced the jury." People v. Boyd, 366
Ill. App. 3d 84, 95 (2006) (citing People v. Hall, 194 Ill. 2d
305 (2000)). Our supreme court has repeatedly held that the
improper introduction of other-crimes evidence is harmless error
when a defendant is neither prejudiced nor denied a fair trial
based upon its admission. People v. Nieves, 193 Ill. 2d 513
(2000); People v. Hall, 194 Ill. 2d 305 (2000).
Defendant argues that the shed incident impermissibly became
the focal point of the trial, especially when considering the
activity in the shed "did not constitute the commission of a
sexual offense." Defendant further claims that even if this
evidence is relevant, the trial court failed to engage in a
mandated balancing test in an effort to determine whether its
probative value outweighed its prejudicial impact. As such,
defendant claims the court allowed a trial within a trial to take
place.
The State submits that a mini-trial was avoided in this
instance as the trial court carefully limited the evidence
adduced at trial, only allowing sufficient details of the shed
incident necessary to illuminate defendant's course of conduct as
well as the investigatory steps taken in this matter. Defendant
disagrees and claims that the majority of the State's case
25
centered on the uncharged conduct: that being, the incident in
the shed. Defendant characterizes 31 pages of the 55-page
transcript of K.B.'s direct testimony as being related to
uncharged conduct, including 30 pages devoted to the shed
incident in and of itself. Defendant further notes that the
overwhelming majority of testimony by principal Christy and
superintendent Maurer concerned uncharged conduct. Defendant
summarizes the State's direct evidence as "85 pages of transcript
showing questions and answers" and claims that "the People
devoted about 48 pages to testimony regarding the uncharged
conduct." Given that 56% of the State's case dealt with the
events of the equipment shed, defendant argues it is clear the
focal point of this trial was the uncharged conduct. Defendant
submits that even if the incident in the shed was relevant, he
was unfairly prejudiced by the admission of testimony concerning
it and is, therefore, entitled to a new trial.
The State does not respond to defendant's direct attack on
the quantum of evidence adduced at trial tied to the shed
incident other than to say "the details surrounding the soccer
shed incident itself were carefully limited." The State claims
that the evidence concerning the school's follow-up investigation
into the shed incident was independently relevant as it addressed
defendant's guilty knowledge as exhibited by his monumental
effort to persuade the victim to lie about something that, he
claims, "did not happen." It further claims the evidence
26
revealed the course taken by the investigation, which started as
an internal school matter and, therefore, was necessary to a full
understanding of the State's case. Finally, the State notes
there is no authority indicating that a trial judge must make a
record specifically indicating that the probative value of prior
bad acts evidence outweighs its prejudicial effect. Noting that
all judges are presumed to know and properly apply the law
(People v. Henderson, 336 Ill. App. 3d 915 (2003)), the State
submits that it must be presumed that the trial court properly
balanced the admissibility of the evidence.
We find the admission of the soccer shed incident evidence
was not error. Within a week of the incident, defendant again
initiated contact with the victim following the Notre Dame soccer
match. This time, defendant was able to convince the victim to
go to his apartment. Evidence of the soccer shed incident was
relevant to evince defendant's course of conduct, tended to
corroborate the victim's testimony concerning their sexual
relationship that ensued shortly thereafter and established the
general intimacy between defendant and the victim.
The shed incident evidence also explained the investigation
in this case and how the crime was discovered. This matter began
as a school investigation of alleged misconduct by an assistant
coach. Prior bad acts or other crimes evidence is properly
admitted in order to explain the course of a police investigation
and the events leading up to a defendant's arrest. People v.
27
Gonzalez, 379 Ill. App. 3d 941, 950 (2008) (citing People v.
Hayes, 139 Ill. 2d 89 (1990)); People v. Tisdel, 201 Ill. 2d 210
(2002); People v Johnson, 114 Ill. 2d 170 (1986). Clearly, the
evidence concerning the incident in the shed was relevant. The
only question remaining regarding the evidence is whether the
quantum of it unduly prejudiced defendant. We hold it did not.
In People v. Johnson, No. 1--07--0715 (Ill. App. Dec. 20,
2010), the court stated as follows:
"The key to balancing the probative value of
other crimes evidence to prove propensity
against its possible prejudicial effect is to
avoid admitting evidence that entices a jury
to find defendant guilty only because it
feels he is a bad person deserving
punishment. [Citation.]
In weighing the probative value of the
evidence against the undue prejudice to the
defendant, a court may consider:
(1) the proximity in time to the charged
or predicate offense;
(2) the degree of factual similarity to
the charged or predicate offense; or
(3) the other relevant facts and
circumstances. [Citation.]." (Internal
quotation marks omitted.) (Emphasis in
28
original.) Johnson, slip op. at 9-10.
The balancing test discussed in Johnson weighs in favor of
admitting the evidence. The incident in the shed occurred close
in time to the first sexual encounter between the victim and
defendant. Both instances were similar in that they were
initiated by defendant and involved inappropriate touching or
attempts at inappropriate touching of the victim. As noted
above, the shed incident was also relevant to show the path of
investigation in this matter. Phone records from the night of
the Notre Dame game corroborate the victim's version of her first
rendezvous at defendant's apartment. As there was no evidence of
conduct amounting to criminal sexual abuse taking place in the
shed, the tendered jury instructions prohibited the jury from
finding defendant guilty based on any activity that occurred in
the shed.
We cannot say that the introduction of this evidence enticed
the jury to find defendant guilty only because it felt he was a
bad person. We hold the trial court did not abuse its discretion
in admitting evidence of the acts in the shed.
E. Limiting Instruction
Defendant tendered a limiting instruction modeled on IPI
Criminal 4th No. 3.14 that stated as follows:
"Evidence has been received that the
defendant has been involved in an offense
other than those charged in the indictment.
29
This evidence has been received on the
issue of the defendant's intent and may be
considered by you only for that limited
purpose.
It is for you to determine whether the
defendant was involved in that offense and,
if so, what weight should be given to this
evidence on the issue of intent." IPI
Criminal 4th No. 3.14.
The trial court refused to give this instruction noting that
the "shed incident is part of a course of conduct that's relevant
here under all the circumstances of the offenses alleged in the
bill of indictment even though clearly the bill of indictment
alleges offenses that have to deal with the testimony of the
sexual activity, but I don't think 3.14 is applicable, and it
would be refused." Defendant argues that since "no limiting
instruction was given, the jury was free to convict the Defendant
of a criminal offense for conduct outside the scope of the
charges filed against him." Specifically, defendant claims the
jury "was improperly allowed to convict the Defendant if it
believed criminal sexual abuse occurred in the equipment shed, an
allegation of conduct in Woodford County, Illinois." We
disagree.
The court clearly instructed the jury as follows:
"A person commits the offense of
30
Aggravated Criminal Sexual Abuse when he
commits an act of sexual conduct with a
victim who is at least 13 years of age but
under 17 years of age when the act is
committed and he is at least 5 years older
than the victim."
See IPI Criminal 4th No. 11.61.
"To sustain the charge of Aggravated
Criminal Sexual Abuse, the State must prove
the following proposition:
First Proposition: That the defendant
committed an act of sexual conduct with K.B.;
and
Second Proposition: That K.B. was at
least 13 years of age but under 17 years of
age when the act was committed; and
Third Proposition: That the defendant
was at least 5 years older than K.B."
See IPI Criminal 4th No. 11.62A.
"The term 'sexual conduct' means any
intentional or knowing touching or fondling
by the accused, either directly or through
the clothing, of the sex organ of the victim,
for the purpose of sexual gratification or
arousal of the victim or the accused."
31
See IPI Criminal 4th No. 11.65D.
K.B. testified that, while in the shed, defendant: grabbed
her belt loop; "started to put his hands up [her] shirt *** near
[her] ribs before [she] pushed his hands down"; after that, he
"put his hands back on [her] belt loop before he started putting
them down [her] pants." When asked how far down her pants
defendant put his hands, K.B. replied, "several inches before I
pulled his hands out." K.B. stated defendant did not "fondle her
breasts" as his hands did not get that far up her shirt.
It is "the almost invariable assumption of the law that
jurors follow their instructions." Richardson v. Marsh, 481
U.S. 200, 206 (1987); People v. Sandoval, 135 Ill. 2d 159 (1990).
A "jury is presumed to follow the instructions that the court
gives it." People v. Taylor, 166 Ill. 2d 414, 438 (1995). The
court instructed the jury that it could only find defendant
guilty if it found sexual conduct occurred between defendant and
K.B. It defined sexual conduct as touching or fondling by the
accused of a sex organ of his or K.B.'s for sexual gratification.
There is no evidence in the record that any such activity
occurred in the shed and the State never suggested defendant
committed sexual conduct in the shed sufficient to rise to the
level of a crime. To conclude that the jury found defendant
guilty of criminal sexual abuse based on the evidence of conduct
in the shed would be to presume and conclude that the jury
ignored its instructions. We find the trial court did not err in
32
failing to give defendant's instruction.
F. Admission of the Text Messaging Transcripts
Defendant argues the trial court committed reversible error
when allowing the document containing the transcription of the
text messages into evidence. Defendant claims no proper
foundation for the document existed to allow the document into
evidence, that it was not properly authenticated and that its
admission violated the best evidence rule.
A trial court's decision to admit documentary evidence will
not be reversed absent an abuse of discretion. People v. Downin,
357 Ill. App. 3d 193 (2005). An adequate foundation is laid when
a document is identified and authenticated. Anderson v. Human
Rights Comm'n, 314 Ill. App. 3d 35 (2000). To "authenticate a
document, evidence must be presented to demonstrate that the
document is what its proponent claims." Gardner v. Navistar
International Transportation Corp., 213 Ill. App. 3d 242, 247-48
(1991). A finding of authentication is merely a finding that
there is sufficient evidence to justify presentation of the
offered evidence to the trier of fact and does not preclude the
opponent from contesting the genuineness of the writing after the
basic authentication requirements are satisfied. People v.
Downin, 357 Ill. App. 3d 193 (2005). A document may be
authenticated by direct or circumstantial evidence. People v.
Towns, 157 Ill. 2d 90 (1993). Authorship of a document may
include a showing that the writing contains knowledge of a matter
33
sufficiently obscure so as to be known to only a small group of
individuals. Downin, 357 Ill. App. 3d at 203. Factors that
courts use in authenticating writings and other items similarly
apply to e-mail messages. Downin, 357 Ill. App. 3d at 203.
We do not find, and the parties fail to identify, any
Illinois case law concerning the admission of text messages.
However, in State v. Thompson, 2010 ND 10, 777 N.W.2d 617, the
Supreme Court of North Dakota found information contained in text
messages was properly authenticated and allowed into evidence.
The text messages at issue in Thompson involved messages sent
from a wife to her husband prior to her assaulting him. While
phone records indicated messages were sent between the two, the
wife argued "there was no way to establish who actually sent the
text messages and whether the messages were accurately
transcribed." Thompson, 2010 ND 10, ¶14, 777 N.W.2d 617, 622.
During the Thompson trial, the court instructed the jury
that the "evidence about the text messages" was only allowed to
show defendant's state of mind as both defendant and the victim
testified regarding the content and frequency of the messages.
Thompson, 2010 ND 10, ¶11, 777 N.E.2d 617, 621. The State
offered a photograph into evidence of one specific text message
that included profane and threatening language. Thompson, 2010
ND 10, ¶7, 777 N.E.2d 617, 621. Under both the North Dakota
evidentiary rules and Federal Rules of Evidence 901(a), "the
proponent of offered evidence need not rule out all possibilities
34
inconsistent with authenticity or conclusively prove that
evidence is what it purports to be; rather, the proponent must
provide proof sufficient for a reasonable juror to find the
evidence is what it purports to be." Thompson, 2010 ND 10, ¶21,
777 N.W.2d 617, 624. "If the court decides evidence is what its
proponent claims it to be, the court may admit the evidence and
the question of its weight is for the trier-of-fact." Thompson,
2010 ND 10, ¶23, 777 N.W.2d 617, 624. Ultimately, the court
found sufficient evidence from the victim, including the
circumstances of that day and his knowledge of defendant's cell
phone number and signature on text messages, to authenticate the
victim's testimony about the text messages received. Such
evidence was sufficient to authenticate the picture of the text
message. Thompson, 2010 ND 10, ¶26, 777 N.W.2d 617, 626.
In the case at bar, the document introduced into evidence
purported to be a transcription created by the principal that
recounted the messages as read to him by the victim. All
acknowledged that the transcription may not have evinced, with
100% accuracy, the text messages sent from defendant to K.B. as
some words were changed via the word processor's spell-check
feature. Nevertheless, the dates and times contained on the
document and attributed to text messages sent from defendant to
the victim mirrored those identified in the phone company
records. K.B. testified as to the content of the messages and
defendant acknowledged the accuracy of a number of the messages
35
as transcribed by the principal.
We find the trial court did not err by admitting the
transcription of the text messages. The trial judge ensured that
all knew the document was exactly what it purported to be: a
transcription of the victim's reading of the text messages. The
judge allowed both sides to argue over their interpretation of
the messages and allowed defendant to admit evidence indicating
the spell-check program on the word processor used to create the
document likely changed the wording or spelling of some messages.
The parties then quarreled over the meaning of the substance of
individual messages. As noted above, defendant acknowledged the
accuracy of a number of the messages as recorded on the document.
Defendant argued his intent in sending those messages that asked
K.B. to change her story was simply to get her to tell the truth.
The State argued that his request that K.B. change her story was
evidence of his wrongdoing.
Nevertheless, the substance of the messages contained
relevant evidence including defendant's attempts to get K.B. to
change her story. While defendant attacks the credibility of the
document's substance, bringing to light the fact that it may not
have perfectly reproduced every message he sent to K.B., this
does not change the fact that the trial court properly
authenticated the document as being nothing more than exactly
what it purported to be. Defendant did not deny sending even a
single one of the purported text messages. We find no error.
36
G. Cumulative Error
Defendant claims the cumulative effect of the alleged errors
denied him due process by infringing on his right to a fair
trial. As noted above, the only error that occurred during the
trial involved the prosecutor's remarks concerning defendant's
ability to testify. The trial court cured that error through its
limiting instruction directing the jury to disregard the
prosecutor's statement. Moreover, as noted above, defendant
waived this error by choosing not to assert his right to remain
silent.
Our supreme court noted in People v. Albanese, 104 Ill. 2d
504, 524 (1984), that if "none of the points relied upon by
defendant constituted error, logic dictates that there is no
possibility for cumulative error." Similarly, we find that where
one error occurred at trial but that error was both cured and
waived, logic dictates that there is no possibility for
cumulative error. See People v. Caffey, 205 Ill. 2d 52 (2001).
H. Sentencing
Aggravated criminal sexual abuse is a Class 2 felony. 720
ILCS 5/12-16(g) (West 2008). Class 2 felonies generally carry a
sentencing range of three to seven years. 730 ILCS 5/5-4.5-35(a)
(West 2008). Probation is an authorized sentence to those
convicted of "all felonies and misdemeanors other than those
identified" in subsection (c) of section 5-5-3 of the Unified
Code of Corrections. 730 ILCS 5/5-5-3(b) (West 2008).
37
Subsection (c) prohibits probation for all who have been
convicted of a qualifying offense within 10 years of committing
the offense for which they are being sentenced. 730 ILCS 5/5-5-
3(c)(2)(F) (West 2008). Qualifying offenses take many forms
under section 5-5-3(c), but we are only concerned with those
equivalent to a "Class 2 or greater felony." 730 ILCS 5/5-5-
3(c)(2)(F) (West 2008).
On the order sentencing defendant, the trial court made the
following notations:
"Court finds defendant is non-probationable
730 ILCS 5/5-5-3c2F
Court finds defendant is extendable 730 ILCS
5/5-5-3.2b1"
In making these findings, the trial court relied on the fact that
defendant had been convicted in 2005 of aggravated assault in the
State of Tennessee. While acknowledging his Tennessee
conviction, defendant argues that conviction did not render him
nonprobationable or extended-term eligible. Defendant claims the
trial court's mistaken belief that he was both nonprobationable
and extended-term eligible came from a misapplication of the law.
The trial court, defendant submits, only compared the sentencing
range from his Tennessee offense to Illinois's sentencing scheme
when determining he was convicted of a Class 2 or greater felony
within the last 10 years. This, defendant argues, was error
entitling him to a new sentencing hearing.
38
We agree with defendant that the trial court, before finding
defendant nonprobationable, should have compared the elements of
his Tennessee offense with Illinois law to determine if the
Tennessee "offense *** contained, at the time it was committed,
the same elements as an offense now *** classified as a Class 2
or greater felony." 730 ILCS 5/5-5-3(c)(2)(F) (West Supp. 2009).
However, we find the trial court’s failure to do so does not
entitle defendant to a new sentencing hearing.
The trial court made it clear that even if defendant were
probationable, it would not order probation given the seriousness
of the offense. The court stated that, "I don’t believe under
the circumstances that probation should be - - would have been or
should be imposed in this case."
Our supreme court has made it clear that not every
sentencing error mandates a new sentencing hearing. For example,
when a trial court considers an improper aggravating factor, our
supreme court has noted that "where it can be determined from the
record that the weight placed on the improperly considered
aggravating factor was so insignificant that it did not lead to a
greater sentence, remandment is not required." People v. Bourke,
96 Ill. 2d 327, 332 (1983). Courts have interpreted this
language from Bourke to mean that where a defendant "would have
received the same sentence" despite the sentencing error,
remandment is not required. People v. Bohlander, 225 Ill. App.
39
3d 1055, 1058 (1992).
While the trial court should have compared the elements of
the Tennessee crime, and not just its sentence, to those of a
similar crime in Illinois, the record leaves little doubt that
defendant would have received the same sentence even if he had
been found probationable. As such, we find defendant is not
entitled to a new sentencing hearing.
CONCLUSION
For the foregoing reasons, the judgment of the circuit court
of Peoria County is affirmed.
Affirmed.
40