Appeal from the Circuit Court of Lake County. No. 91-CF-1861. Honorable Christopher C. Starck, Judge, Presiding.
Rehearing Denied and Released for Publication April 28, 1994. Petition for Leave to Appeal Denied October 6, 1994.
Colwell, Doyle, PECCARELLI
The opinion of the court was delivered by: Colwell
JUSTICE COLWELL delivered the opinion of the court:
After a bench trial, defendant, Lloyd R. Davis, was convicted of 5 counts of criminal sexual assault (Ill. Rev. Stat. 1991, ch. 38, par. 12-13(a)(4) (now 720 ILCS 5/12-13(a)(4) (West 1992))), 10 counts of aggravated criminal sexual abuse (Ill. Rev. Stat. 1991, ch. 38, 12-16(d), (f) (now 720 ILCS 5/12-16(d), (f) (West 1992))), and 9 counts of child pornography (Ill. Rev. Stat. 1991, ch. 38, pars. 11-20.1(a)(3), (a)(4), (a)(5) (now 720 ILCS 5/11-20.1(a)(3), (a)(4), (a)(5) (West 1992))). The trial court sentenced defendant to consecutive sentences totaling 31 years in the Department of Corrections. Defendant appeals, alleging (1) that the State ailed to prove him guilty beyond a reasonable doubt, (2) that the trial court erred in allowing "other acts" testimony, (3) that the trial court erred in finding that defendant produced a live performance of child pornography involving a minor, and (4) that the trial court abused its discretion in sentencing defendant. We affirm in part and reverse in part.
Defendant is the head pastor or "bishop" of the Christian Fellowship Church (Church) which is based in Waukegan, Illinois, and has several branches worldwide, including San Diego, California; Norfolk, Virginia; and Tijuana, Mexico. A Lake County indictment alleged that defendant participated in various forms of sexual activity with two minors, A.C. and C.L., while both minors were members of the Church. Defendant waived a jury trial and his bench trial commenced on June 22, 1992.
A.C. testified at trial that he was born June 24, 1974, in Los Angeles, California. In July 1987, A.C. was selling goods on Revolucion Avenue in Tijuana, Mexico, when he was approached by defendant, Scott Morehouse, Chuck Thompson, David Armstrong, and other members of the Church. Defendant and the others talked to A.C. about their church and took him to lunch. A.C. made plans with defendant's group to be baptized at the San Diego branch of the Church. A.C. then returned to work.
A.C. became friends with another boy named C.L. who also worked on Revolucion Avenue. C.L. had already been baptized in the Church. A.C. and C.L. eventually crossed the border to visit the Church in San Diego where A.C. was then baptized. A.C. moved up to San Diego during the summer of 1987 to live in a house owned by the Church. A.C. lived in the Church house and attended school until the spring of 1988.
Defendant visited the Church in San Diego a few times during this period. A.C. testified that defendant would call A.C. into his office and ask him if he masturbated. Defendant told A.C. that masturbation was not a sin because it kept one from having sex with women and fornication was a bad sin. Defendant would often hold A.C.'s leg close to the knee. A.C. said that defendant grabbed A.C.'s crotch while they were at a hotel in San Diego. A.C. said he thought defendant was testing him.
Defendant asked A.C. if he wanted to visit the "mother Church" in Chicago. A.C. said he wanted to go because he thought he was doing a "good thing for God" and he felt privileged that defendant had asked him. A.C. came to Waukegan in the summer of 1988. A.C. stayed at the Church office on O'Plaine Road in Waukegan. Defendant continued to talk to A.C. about sexual matters. Defendant asked A.C. if he would like to visit the Church in Norfolk, Virginia. A.C. said yes because he thought it would be a privilege. Defendant then asked A.C. if he wanted to masturbate with him. When A.C. did not respond, defendant pulled A.C. over to a couch, pulled A.C.'s pants down, and stroked A.C.'s penis. Defendant then performed fellatio on A.C. After A.C. ejaculated, defendant gave him a paper towel from his desk and said "God forgive me." Defendant then took A.C. to a store and bought him a watch.
A day or two later defendant called A.C. to his office again. Defendant took his clothes off and produced a large pillow from the closet which he put on the floor. Defendant and A.C. then sat on the pillow. Defendant had A.C. hold defendant's penis and defendant performed fellatio on A.C. again. On the third occasion, defendant brought another minister, Chuck Thompson, up to the office with A.C. Defendant was lying on the large pillow on the floor in his underwear. He repeatedly grabbed for A.C.'s buttocks and crotch in front of Chuck Thompson but A.C. became upset and left the room.
On another occasion A.C. was in the office with defendant lying on the ground. Defendant again performed fellatio on A.C. and then got Vaseline lotion and paper towels out from his desk drawer. Defendant put the Vaseline on his anus and gave A.C. some to rub on his penis. Defendant instructed A.C. to perform anal sex on defendant but A.C. was unable to finish because defendant said it hurt him. Defendant told A.C. to put his knees on a chair facing the back of the chair. Defendant then applied more Vaseline onto A.C.'s anus and performed anal sex on A.C.
Defendant's sexual acts with A.C. continued during the summer. A.C. also had sex with other members of the Church many times. Defendant was always present when this occurred. A.C. said it was defendant's idea that A.C. have sex with Michael Carner, another Church member. Defendant told Carner to perform oral sex on A.C. while defendant watched and masturbated. Carner also performed fellatio on defendant. On another occasion defendant instructed David Armstrong, another Church member, to perform fellatio on A.C. while A.C. did the same to Armstrong. Defendant then performed oral sex on A.C.
A.C. testified that defendant performed sexual acts with him at the "mother Church" on Belvidere Road in Waukegan during the summer of 1988. One incident involved A.C., defendant, and another man whose name A.C. could not recall. The three men each performed oral sex on one another in the Church office.
A.C. said that there were many incidents when several men were present for sexual acts with A.C. and defendant. A.C. recalled one occasion when seven or eight men were in the office on O'Plaine Road. Defendant controlled the situation and would direct the people as to what he wanted them to do sexually. A.C. described the scene as a "big naked party."
A.C. traveled to Norfolk with defendant during the summer of 1988. A.C. testified that several sexual episodes occurred during this trip. On one occasion, defendant directed A.C. to apply Vaseline and perform anal sex on Daniel Lantis, the pastor at the Church in San Diego. Defendant watched and masturbated during this time.
Defendant told A.C. that homosexuality was a sin, but the acts they were performing were no different than masturbation and were not sinful if there was no lust between the men. A.C. testified that defendant wore a wig and has false teeth. He said defendant wore white brief type underwear. A.C. recalled that defendant was uncircumcised and had white and brown pubic hair. He also noted that defendant had a purplish rash around his inner thigh and white spots on his legs. Defendant never wore a condom. Defendant would say, "I'm going to get ya" when he referred to anal sex.
A.C. returned to San Diego in September 1988. Defendant would occasionally visit and perform sexual acts with A.C. at the Royal Vista Hotel in San Diego. One incident involved defendant and Armstrong. Other incidents occurred at the Church-owned home on Oceanview Boulevard in San Diego. On one occasion A.C. attempted to have anal sex with defendant. A.C. admitted he also had oral sex with Vernon Engler, another Church member, when defendant was not present.
A.C. thought about leaving the Church sometime in 1989. When A.C. told defendant of his intentions, defendant said "God, I pray you take this sole [sic ] or man off the earth." Some members of the Church told A.C. to write a letter stating that there was no homosexual activity going on in the Church. A.C. refused at first but after speaking with defendant he finally acquiesced. A.C. signed the letter, stating therein that he had not been forced to write the letter. A.C. also made an audio tape stating he did not witness any homosexual activity among the Church members.
A.C. returned to his house in Mexico and told several people about the sexual incidents with defendant. C.L. informed A.C. that similar acts had happened to him. C.L. told A.C. that he was going to talk to Wayne Chumbley, an agent with the Immigration and Naturalization Service (INS) in San Diego. A.C. decided to go too. A.C. said he revealed to Chumbley all the sexual incidents that were going on in the church. A.C. also gave statements to Wayne Maxey of the San Diego district attorney's office and to personnel at the San Diego Children's Hospital.
A.C. denied that Cecelia Fergosa, a friend of A.C. and a former member of the Church, told him and C.L. that they could gain money if they accused defendant of sexual acts. A.C. testified that it was his uncle's idea to file a civil suit in California based on the sexual acts defendant performed with A.C.
At trial, A.C. was shown a paper with his signature stating that he would not testify against the Church. A.C. said he wrote this because C.L. was threatening him and trying to get A.C. to stop accusing the church. C.L. had recanted his allegations against the Church and maintained that everything he said previously was untrue. C.L. also offered A.C. money to make a videotape in which they would both recant their previous testimony against the Church and declare that they had made the accusations for money. A.C. indicated he suffered from bleeding in his anal area but he did not know if it was in any way related to the sexual acts with defendant.
Scott Morehouse testified that he joined the Navy and was stationed at Great Lakes Naval Base (Great Lakes) in Waukegan during January 1979. He soon became a regular visitor at the Church's Serviceman's Center near Great Lakes which was where he came to know defendant. Morehouse talked with defendant about opening a branch of the Church in Norfolk where Morehouse was to be transferred with the Navy.
Defendant visited Morehouse in Norfolk several times while Morehouse was still involved in the Navy. Defendant began making references that he wanted to have sexual encounters with Morehouse. Defendant often talked about masturbation and said it was a natural act. Defendant and Morehouse later engaged in sexual acts in a hotel room in Norfolk. During defendant's next visit six months later, he and Morehouse engaged in sexual acts on several occasions. These instances involved anal sex between defendant and Morehouse. On one occasion, three other men were present and participated in sexual activity. Defendant would direct the men as to the sexual acts they were to perform on each other. Defendant used Vaseline petroleum jelly and paper towels to clean up afterwards.
After Morehouse was discharged from the Navy, he became completely involved with the Church. During a visit to the Church in Waukegan, Morehouse engaged in sexual acts with defendant in his Church office. Defendant would inquire if Morehouse "wanted to engage" or would ask "is it okay if I get ya?" Defendant would typically use a large cushion placed on the floor for sexual acts. Defendant reassured Morehouse that homosexual acts were not wrong as long as it was just a "physical release" and you did not love the man as a wife.
From 1983 to 1989, Morehouse served as pastor at the Church in San Diego. He also had oral sex with defendant at the Church office in San Diego on Saipan Avenue. Morehouse testified that defendant had a hairpiece and wore dentures. Defendant wore white brief underwear, was uncircumcised, and had gray pubic hair. Morehouse also noticed a scar below the beltline on defendant's back.
Morehouse testified that defendant directed him to recruit young Latino men along Revolucion Boulevard in Tijuana. Defendant said he wanted to train men to carry the word of God back to Mexico. Defendant told Morehouse to work with the boys and try to get them to come up to services in San Diego. Morehouse specifically recalled approaching A.C. Defendant wanted Morehouse to recruit A.C. and get him up to San Diego. Morehouse said defendant showed A.C. much attention and always kept A.C. near him during prayer meetings. Morehouse never observed sexual activity between defendant and A.C. either in San Diego or Waukegan.
Morehouse decided to leave the Church in 1989. He felt that the sexual activity with defendant was wrong and he also suspected that defendant had had sexual relations with C.L. After Morehouse left the church, he wrote a letter saying he respected defendant and appreciated him as his pastor. Morehouse admitted that he told United Press International, at defendant's direction, that no homosexual activity took place in the Church. Morehouse said he spoke with Chumbley regarding A.C. and C.L. ...