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09/22/94 PEOPLE STATE ILLINOIS v. CHESTER NOVAK

September 22, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
CHESTER NOVAK, APPELLANT.



Freeman, Heiple, Nickels

The opinion of the court was delivered by: Freeman

JUSTICE FREEMAN delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, defendant, Chester Novak, was convicted of aggravated criminal sexual assault. (Ill. Rev. Stat. 1989, ch. 38, par. 12-14(b)(1).) Defendant was sentenced to a prison term of 11 years, followed by a mandatory supervised release period of three years. The appellate court affirmed. (242 Ill. App. 3d 836.) We allowed defendant's petition for leave to appeal (134 Ill. 2d R. 315(a)), and now affirm the appellate court.

BACKGROUND

The appellate court recited the trial testimony at length. We need not detail it here. The State's case was essentially that in the summer of 1989, defendant was a 31-year-old baseball coach. He coached four boys' baseball teams. On several occasions, defendant lured J.R.H., the 10-year-old victim in this case, to defendant's living quarters. Defendant accomplished this under the pretenses of improving the victim's baseball skills, orperforming research for a book or a thesis for a master's degree. On these occasions in defendant's rooms, defendant at various times blindfolded the victim, tied the victim's hands behind his back, choked the victim, rubbed against the victim, and inserted his penis into the victim's mouth. 242 Ill. App. 3d at 842-47.

The defense case was essentially that defendant only applied various sets of muscle strength and flexibility exercises on the victim's neck and shoulders. Defendant denied tying the victim's hands. However, defendant did place the victim's arms behind his back and restrict the victim's arm movements, so the arms would not interfere with the training program. Also, during some of these exercises, defendant's waist came into contact with the victim. (242 Ill. App. 3d at 847-49.) Defendant did tell the victim and other players on his teams not to perform these exercises with any other partner. Defendant was concerned that they could hurt themselves if they performed these exercises with untrained partners. We will refer to additional pertinent facts as they relate to the three issues defendant raises before this court.

Discussion

Defendant contends he did not receive a fair trial because the trial Judge: (1) erroneously allowed lay opinion witnesses to testify to matters beyond the scope of their personal knowledge; (2) erroneously refused defendant's tendered jury instruction on aggravated criminal sexual abuse as a lesser included offense of aggravated criminal sexual assault; and (3) used erroneous Illinois Pattern Jury Instructions concerning other-crimes evidence and out-of-court statements by the child-victim to his mother.

I. Opinion Testimony

The defense case was that defendant only applied various sets of muscle strength and flexibility exercisesto the victim's neck and shoulders. Defendant testified that these exercises were endorsed in the literature of the field, some of which he admitted into evidence. Several of these publications described neck strengthening exercises that defendant claimed to use. Defendant also admitted into evidence an article that recommended the use of a blindfold as an aid in teaching baseball. The blindfold teaches a player how to improve his or her baseball skills by directing the player to sense exact body movements.

The State called Thomas Milanovich and Michael Lenti as rebuttal evidence concerning defendant's alleged training methods. Defendant objected, contending that they were not experts in the field of athletic training. The State responded that the witnesses were not being called as experts, but rather as lay witnesses "who have familiarity in the field of strength training and exercising." After the State's offer of proof for each witness, the trial Judge allowed the witnesses to testify.

Milanovich graduated from the University of Wisconsin in 1975. His minor field of study was health. He took courses in anatomy, physiology, and kinesiology, which is the study of mechanical and anatomical principles in relation to human movement. Milanovich played professional football in the late 1970s and early 1980s. In 1977, he opened a gymnasium whose patrons included children and professional athletes. He had been a personal trainer for a few professional baseball players. He kept current with the latest techniques in strength training through the literature in the field and attending seminars.

Milanovich testified that he would not train a 10- to 13-year-old child by using a blindfold, tying the child's hands behind the back, or applying pressure to the child's neck. In Milanovich's opinion, neck strengthening exercises are used for contact sports, such as football. Neck muscle strength is not related to throwing a baseball. Also, he preferred to include parents in training children rather than to exclude them.

Milanovich also gave his opinion on the literature that defendant presented. In Milanovich's opinion, the publications that discussed neck exercises pertained to contact sports such as football. The publications did not have anything to do with strengthening the arm for throwing a baseball. Also, the article that discussed blindfolding did so in the context of training hearing-impaired children.

Michael Lenti was a trainer at a health club during college. He played professional baseball for 2 1/2 years and semiprofessional baseball for nine years. At the time of trial, he continued to play semiprofessional baseball, and served as an assistant athletics director at DePaul University in charge of the facilities and the recreation intermurals.

Lenti described the exercises he used for developing his arm. In his opinion, the muscles used for throwing are those in the arm, back, shoulders, chest, and legs. Lenti further opined that there was no benefit to having a strong neck in baseball. Rather, too strong or overdeveloped a neck would be "a hindrance more than a help." He had never attended a training session where the trainee was blindfolded, or where the trainee's arms were tied behind his or her back. Lenti trains children occasionally; he has never worked on their necks or advised parents not to attend.

Lenti also gave his opinion on the literature that defendant presented. In Lenti's opinion, the publications on neck exercises involved football and not baseball. The neck exercises described therein were isometric exercises for strength, which is not needed for baseball, and not for flexibility, which is needed. Lenti had never done or seen anyone else do any of these exercises forbaseball. In his opinion, the article on blindfolding was directed at training handicapped children. He disagreed with the author's Conclusion that this technique should be applied to nonhandicapped players.

On appeal, defendant repeats his contention that the testimony of Milanovich and Lenti was inadmissible. He claims that it was beyond the scope of lay witness opinion testimony. He also challenges their qualifications as experts. He argues that the testimony was prejudicial because it could have led the jury to believe that defendant lied about his alleged training program.

The appellate court upheld the trial Judge's admission of Milanovich's and Lenti's testimony. Although the testimony was admitted as lay witness opinion testimony, the appellate court referred to the legal principles pertaining to expert testimony. The appellate court did not discuss whether the testimony of Milanovich and Lenti was admissible either as lay witness opinion testimony or expert testimony. Rather, the court concluded that even if the state's rebuttal required expert testimony, defendant was not prejudiced by the admission of Milanovich's and Lenti's testimony, regardless of its label. 242 Ill. App. 3d at 861-62.

We agree with the appellate court's Conclusion upholding the admission of Milanovich's and Lenti's testimony. However, we do so for a different reason. The question before a reviewing court is the correctness of the result reached by the lower court and not the correctness of the reasoning upon which that result was reached. ( People v. York (1963), 29 Ill. 2d 68, 71, 193 N.E.2d 773.) Therefore, as a reviewing court, we can sustain the decision of a lower court for any appropriate reason, regardless of whether the lower court relied on those grounds and regardless of whether the lower court's reasoning was correct. ( People v. Morgan (1991), 142 Ill. 2d 410, 457-58, 154 Ill. Dec. 534, 568 N.E.2d 755.) Specifically, "where a trial court'sadmission of evidence is proper on some ground, it will not be disturbed even though the court gave the wrong reasons." People v. Church (1981), 102 Ill. App. 3d 155, 166, 57 Ill. Dec. 679, 429 N.E.2d 577; accord People v. Thompkins (1988), 121 Ill. 2d 401, 428, 117 Ill. Dec. 927, 521 N.E.2d 38.

We initially conclude that the testimony of Milanovich and Lenti was inadmissible as lay witness opinion testimony. Illinois courts refer to Rule 701 of the Federal Rules of Evidence in considering the admissibility of lay witness opinion testimony. (M. Graham, Cleary & Graham's Handbook of Illinois Evidence § 701.1, at 482 (5th ed. 1990).) Rule 701 provides that if a witness is not testifying as an expert, his or her opinion testimony is limited to those opinions or inferences that are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue. Fed. R. Evid. 701, quoted in Freeding-Skokie Roll-Off Service, Inc. v. Hamilton (1985), 108 Ill. 2d 217, 222, 91 Ill. Dec. 178, 483 N.E.2d 524.

Lay witness opinion testimony is admissible where the facts could not otherwise be adequately presented or described to the fact finder in such a way as to enable the fact finder to form an opinion or reach an intelligent Conclusion. Lay witnesses may relate their opinions or Conclusions on what they observed because it is sometimes difficult to describe a person's mental or physical condition, character or reputation, or the emotions manifest by his or her acts; or things that occur and can be observed, including speed, appearance, odor, flavor, and temperature. United States v. Skeet (9th Cir. 1982), 665 F.2d 983, 985; accord People v. Burton (1972), 6 Ill. App. 3d 879, 886, 286 N.E.2d 792; 1 S. Gard, Illinois Evidence Manual § 7:03 (2d ed. 1979).

The limitation that lay witness opinion testimony be rationally based on the witness' perception reflects the general requirement that a witness must have personalknowledge of the matter to testify to it. (Joy Manufacturing Co. v. Sola Basic Industries, Inc. (3d Cir. 1982), 697 F.2d 104, 111; accord Fed. R. Evid. 602; M. Graham, Cleary & Graham's Handbook of Illinois Evidence § 701.1, at 482 (5th ed. 1990).) The testimony must be based on concrete facts perceived from the witness' own senses. ( Randolph v. Collectramatic, Inc. (10th Cir. 1979), 590 F.2d 844, 847-48; 1 J. Strong, McCormick on Evidence § 11, at 46 n.22 (4th ed. 1992); 1 S. Gard, Illinois Evidence Manual § 7:02 (2d ed. 1979).) Personal knowledge of a fact cannot be based on the statement of another. ( United States v. Owens (9th Cir. 1986), 789 F.2d 750, 754.) The limitation essentially requires that the fact finder receive the best evidence available -- first-hand knowledge rather than second-hand knowledge. United States v. Hoffner (10th Cir. 1985), 777 F.2d 1423, 1425; Joy Manufacturing Co., 697 F.2d at 111.

In the present case, the testimony of Milanovich and Lenti went beyond the scope of lay witness opinion testimony. These witnesses were called for rebuttal evidence concerning defendant's alleged training methods. However, these witnesses did not see defendant administer any of these exercises to the victim or anyone else. They lacked first-hand knowledge upon which to base their opinion testimony.

Rather, Milanovich and Lenti based their Conclusions on second-hand knowledge that included the literature defendant presented (see C. Itoh & Co. (America), Inc. v. M/V Hans Leonhardt (E.D. La. 1989), 719 F. Supp. 514, 515), or their responses to hypothetical questions asked by the prosecutor that sought expert opinion on the subject of strength training (see White v. Walker (5th Cir. 1991), 950 F.2d 972, 979). As lay witnesses, their opinions could not have been based on concrete facts that they perceived from their own senses. Rather, their opinions could amount only to speculative Conclusions. See Hoffner, 777 F.2d at 1426.

The record shows that defendant challenged the qualifications of Milanovich and Lenti as expert witnesses. However, we conclude that the testimony of Milanovich and Lenti was admissible as expert testimony. An individual will be permitted to testify as an expert if that person's experience and qualifications afford him or her knowledge that is not common to laypersons, and where such testimony will aid the fact finder in reaching its Conclusion. ( People v. Jordan (1984), 103 Ill. 2d 192, 208, 82 Ill. Dec. 925, 469 N.E.2d 569.) The indicia of expertise is not an assigned level of academic qualifications. Rather, the test is whether the expert has knowledge and experience beyond the average citizen that would assist the jury in evaluating the evidence. ( People v. Coleman (1990), 205 Ill. App. 3d 567, 584, 150 Ill. Dec. 883, 563 N.E.2d 1010.) The expert may gain his or her knowledge through practical experience rather than scientific study, training, or research. There is no precise requirement as to how the expert acquires skill or experience. ( People v. Oberlander (1969), 109 Ill. App. 2d 469, 473, 248 N.E.2d 805.) Regardless of how specialized knowledge is acquired, whether through education, training, experience, or a combination of each, if the witness possesses such knowledge, he or she may testify as an expert. Coleman, 205 Ill. App. 3d at 584.

The burden of establishing the qualifications of an expert witness is on the proponent of the expert's testimony. The determination of whether a witness qualifies as an expert is within the sound discretion of the trial court. Jordan, 103 Ill. 2d at 208.

In the present case, Milanovich and Lenti met these qualifications. Through education, training, experience, or a combination of each, these witnesses possessed knowledge that is not common to the average citizen. Further, this knowledge aided the jury in reaching its Conclusion. We cannot say that the trial court abused its discretion in admitting this testimony.

II. Lesser Included Offense

Defendant next contends that the trial Judge erroneously refused his tendered jury instruction on aggravated criminal sexual abuse. He asserts that he was entitled to have the jury instructed on aggravated criminal sexual abuse because that offense is a lesser included offense of aggravated criminal sexual assault.

A review of the pertinent legal principles is necessary to better understand the parties' arguments on appeal. No person can be convicted of an offense that he or she has not been charged with committing. However, a defendant may be convicted of an offense not expressly included in the charging instrument if that offense is a lesser included offense of the crime expressly charged. People v. Jones (1992), 149 Ill. 2d 288, 292, 172 Ill. Dec. 401, 595 N.E.2d 1071; People v. Lewis (1980), 83 Ill. 2d 296, 300, 47 Ill. Dec. 314, 415 N.E.2d 319.

A lesser included offense is a valuable tool for a defendant, a prosecutor, and society generally. For a defendant, an instruction on a lesser included offense provides an important third option to the jury. If the jury believes that defendant was guilty of something, but uncertain whether the charged offense had been proved, it might convict defendant of the lesser offense, rather than convict or acquit him of the greater offense. People v. Bryant (1986), 113 Ill. 2d 497, 502, 101 Ill. Dec. 825, 499 N.E.2d 413 (and cases cited therein).

For a prosecutor, a defendant may not automatically go free if the evidence fails to prove an essential element of the greater offense. For society, the punishment that it imposes on a criminal may conform more accurately to the crime actually committed. Note, The Lesser Included Offense Doctrine in Pennsylvania: Uncertainty in the Courts, 84 Dick. L. Rev. 125, 126 (1979).

Section 2-9 of the Criminal Code of 1961 defines an included offense in pertinent part as an offense that "is established by proof of the same or less than all of thefacts or a less culpable mental state (or both), than that which is required to establish the ...


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