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12/29/88 the People of the State of v. Gary L. Findlay

December 29, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

GARY L. FINDLAY, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

532 N.E.2d 1035, 177 Ill. App. 3d 903, 127 Ill. Dec. 206 1988.IL.1906

Appeal from the Circuit Court of Du Page County; the Hon. John Nelligan, Judge, presiding.

APPELLATE Judges:

JUSTICE INGLIS delivered the opinion of the court. UNVERZAGT and NASH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE INGLIS

Defendant, Gary Findlay, appeals from his conviction after a bench trial on one count of aggravated criminal sexual abuse (Ill. Rev. Stat. 1985, ch. 38, par. 12-16(d)). Defendant was sentenced to three years' probation subject to 180 days' incarceration in the Du Page County jail and submission to a psychological evaluation and counseling if recommended. Defendant was also fined $1,000 plus costs. On appeal, defendant contends that (1) the State failed to prove him guilty beyond a reasonable doubt, and (2) the trial court improperly restricted questioning of a defense witness regarding a conversation between the witness and defendant. We reverse.

Because defendant contends that the State failed to prove him guilty beyond a reasonable doubt, a detailed statement of facts is necessary. At the time of trial, defendant was 32 years old and had been employed with the United States Air Force for 13 years. In the course of his employment, defendant held a variety of positions and had top-secret security clearance. In February 1978, defendant became affiliated with the Boy Scouts of America and has held a variety of leadership positions with that organization. Defendant met Jeffery Echols, the victim in the instant action, at a scouting event in the fall of 1984. At that time, Echols was 14 years old and had been in scouting for approximately eight years. During the course of the next year, defendant began to attend and participate in the activities of Echols' troop.

In October 1985, defendant was the chapter advisor, fellowship advisor, and assistant scout master for Echols' troop. At that time, the Boy Scouts of America introduced a new scouting program called varsity scouting. The program was designed for boys between the ages of 14 and 17 and provided a group organization where the boys determined the functions of their own unit. Defendant obtained information about the new program and formed a varsity scouting unit consisting of six of the older boys from the troop. Echols was appointed to the position of youth leader for this unit on the basis that he was the member with the highest rank. The duties of the youth leader included running the meetings of the unit and forming a communication between the boys and the adult leaders.

According to defendant, Echols performed poorly as a youth leader. Defendant stated that from approximately November 1985, through the spring of 1986, defendant had several private conversations with Echols regarding his performance as a youth leader and at one time threatened to remove him from his leadership role. Robert Bergmann, another adult leader with the troop, also noted that Echols was not performing satisfactorily and testified that he had conversations with defendant concerning discharging Echols from his position. Bergmann was not permitted to testify regarding the content of his statements to defendant about discharging Echols.

Despite this testimony regarding Echols' poor leadership, other witnesses testified that Echols and defendant had a close relationship. Echols testified that defendant phoned him two to three times per week for 45 minutes at a time. Echols' father testified that on a fishing trip held in June 1986, defendant spent a great deal of time with his son and constantly bragged about him to the other boys. He further stated that defendant was constantly patting and putting his arm around Echols. Echols' father also testified regarding an incident in December 1985, when he observed Echols and defendant emerge from a dark classroom during a scouting function. Defendant told Echols' father that they were discussing scout business.

On August 6, 1986, defendant was charged by indictment with five counts of aggravated criminal sexual abuse (Ill. Rev. Stat. 1985, ch. 38, par. 12-16(d)). The indictments were returned after Echols reported, first to his parents and subsequently to Du Page County authorities, that defendant had sexual contact with him on a number of occasions in 1985 and 1986. Count I alleged that defendant committed an act of fellatio upon Echols on August 19, 1985, between 4 and 5 p.m. Count II alleged that defendant committed an act of fellatio upon Echols on October 5, 1985, between 2 and 3 p.m. Count III alleged that defendant committed an act of fellatio upon Echols on or about November 9, 1985, sometime in the afternoon or evening hours. Count IV alleged that defendant committed an act of anal intercourse with Echols on or about October 26, 1985. Count V alleged that defendant committed an act of fellatio upon Echols on February 19, 1986, between 7 and 7:30 p.m. The trial court granted the State's motion to nol-pros counts II and V of the indictment, and the trial on the remaining counts commenced on May 26, 1987.

The State first presented evidence regarding the August 19, 1985, incident charged in count I. Echols testified that between 2 and 3 p.m. on that date, he and defendant went swimming in the swimming pool at defendant's apartment complex. Echols stated that they entered and exited the pool through a locker room. According to Echols, they finished swimming around 3 or 4 p.m. and went to defendant's apartment, where defendant committed an act of fellatio upon Echols. However, Echols' testimony was contradicted by Michelle Butterfield, the property manager at defendant's apartment complex. According to Butterfield, the pool at defendant's apartment complex was closed on August 19, 1985, between 1 and 5 p.m. Butterfield further stated that the entrances to the pool, including the locker room, would have been secured at that time, and that only she and her staff had keys to those entrances. Echols' testimony was also contradicted by defendant. Defendant testified that on August 19, 1985, he was employed by the United States Postal Service at O'Hare Airport. Defendant testified that he was at work between 6 a.m. and 3 p.m. on that date, and stated that he said goodnight to Carol Zaehler, a postal service technician, on his way out of work. Defendant further testified that he did not arrive at his apartment until approximately 3:45 or 4 p.m. Defendant's alibi was corroborated by Zaehler, who testified that on August 19, 1985, she saw defendant at approximately 3 p.m. when he came past the control center and said goodnight.

The State next presented evidence regarding an incident occurring on September 28, 1985, or September 29, 1985. Although this evidence was not the subject of any of the counts of the indictment, the trial court permitted its introduction to show the familiarity and relationship between the parties and as corroboration of Echols' testimony as to the acts charged in the five-count indictment. According to Echols, defendant took him and Todd Ellermeier, another scout, practice driving in defendant's car while at Waubonsee College for a scouting event. Echols testified that they dropped Ellermeier off and subsequently pulled into the entrance of a quarry to change drivers. At that time, defendant committed an act of fellatio upon Echols while the two of them were in defendant's car. While Ellermeier and defendant both acknowledged that the three of them went driving in defendant's car and that defendant dropped Ellermeier off first, defendant denied any sexual contact with Echols.

The State next presented evidence regarding the October 5, 1985, incident charged in count II, which had previously been nol-prossed by the State. The court permitted this evidence over defendant's objection. Echols testified that while camping at a scout function in Yorkville, defendant drove him to a different campsite approximately five miles from where the scouting organization was located and committed an act of fellatio upon him. According to Echols, the incident occurred between 2 and 3 p.m., and they were away from the Yorkville camp for approximately one hour. Although Echols stated that three people including his father were present when they left and arrived back at the campsite, none of those people testified that they saw Echols and defendant either leave or return to the campsite on that date. Echols' testimony was in fact contradicted by Helen Hunter and Ronald Netzband, who testified that they saw defendant's car parked in one of the spaces immediately adjacent to the fort in which they were camping at Yorkville. Hunter testified that she noticed no movement of defendant's car on that date and that it appeared to be parked in the same place from the morning of October 5, 1985, to the morning of October 6, 1985. Netzband testified that defendant's car never moved from the parking area on October 5, 1985, and he did not see it move until approximately 10 a.m. on October 6, 1985, when they all departed. Netzband further testified ...


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