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April 10, 1996


Appeal from the Circuit Court of Lake County. No. 94-CF-1300. Honorable John R. Goshgarian, Judge, Presiding.

Rehearing Denied May 24, 1996. Released for Publication May 24, 1996.

The Honorable Justice Thomas delivered the opinion of the court: Doyle and Hutchinson, JJ., concur.

The opinion of the court was delivered by: Thomas

The Honorable Justice THOMAS delivered the opinion of the court:

A jury convicted the defendant, Mark Burnidge, of two counts of aggravated criminal sexual abuse (720 ILCS 5/12--16(d) (West 1994)). The trial court sentenced him to 36 months' probation and a 9-month term of periodic imprisonment. The court further ordered that the defendant pay restitution and fines totalling $1,500. The defendant appeals.

R.R. testified that on April 16, 1994, she was 15 years old and a member of St. Matthew's Lutheran Church. On that same day, R.R. went to the church with her 15-year-old friend, J.P. The two girls arrived early at the church to help set up for a youth event. The 23-year-old defendant, who was a counselor for the youth group, was also there. R.R. helped the defendant set up tables in the front lobby area while J.P. moved desks in a classroom at the facility. After the defendant and R.R. finished in the lobby area, they walked together through the stage area toward the classroom. En route, the defendant began kissing R.R. He then placed his hand under her shirt and bra and began feeling her breasts. At that moment, the defendant placed R.R.'s hand on the front of his pants. After a short time R.R. told the defendant to stop, and the two then went to find J.P. in the classroom.

R.R. further testified that she and the defendant met J.P. in the classroom. After the two girls searched for a VCR, the defendant gave J.P. a key and told her to look in the rest of the classrooms while he and R.R. looked for it in the basement. The defendant and R.R. then went to the church basement. There, the defendant kissed R.R. and felt her in the same places under her clothing and had her feel him in the same place. R.R. told the defendant to stop, which he did. However, 30 seconds later the defendant began making advances again. The two left the basement when R.R. told the defendant that they had to go. R.R. then went to the gym and told J.P. that she had to go to the bathroom. J.P. accompanied R.R. to the bathroom. There, R.R. fixed her bra, which the defendant had unfastened, and told J.P. what had happened to her.

R.R. also testified about an incident that occurred in August 1993. On that day, she and the defendant played basketball in the church gym. At some point, the defendant led R.R. onto the stage, where he kissed her and fondled her breasts.

J.P. testified that on April 16, 1994, she and R.R. looked for the VCR and, when they could not find it, the defendant gave her a key to the classrooms to look for it. The defendant and R.R. then went to look for it together. Five or ten minutes later, J.P. rejoined R.R., and R.R. asked her to accompany her to the bathroom. There, R.R. tucked in her shirt, fixed her bra, started to cry, and told J.P. that the defendant had kissed her and tried going up her shirt.

Defense counsel objected to J.P.'s testimony about what R.R. told her in the bathroom on hearsay grounds. The State argued that the testimony fell under the excited utterance exception to the hearsay rule. The trial court overruled the objection.

The defendant testified that on the evening in question he and R.R. and J.P. searched for a VCR. When it was not found in its usual storage place, he told the girls that he would go downstairs to look for it. Although he never requested her to do so, R.R. accompanied him downstairs. On the way, she put her arm around his waist while they walked. They stopped at the end of a hallway in a dimly lit area, and the defendant kissed R.R. and placed his hand on her breast over her clothing. The defendant estimated that the entire incident lasted about 10 seconds. He stated that there was no conversation between him and R.R. and that he stopped the touching because he thought that it was not proper.

Prior to trial, the court conducted a hearing on several pretrial motions. In that regard, two subpoenaed witnesses, the Reverend Carleton Payne, pastor of St. Matthew's Lutheran Church, and Todd Martin, a deacon at the church, brought a motion to exercise the clergy privilege. In the motion they requested that they not be compelled to violate their oaths as clergyman by being required to testify about conversations they had had with the defendant. Additionally, the defendant filed two pretrial motions. The motions essentially sought to exclude evidence and testimony derived from allegedly privileged communications made by the defendant to the Reverend John E. Golisch, associate pastor at St. Lutheran Church, and subsequently reported by Golisch to the Illinois Department of Children and Family Services (DCFS).

At the joint hearing on the above-mentioned pretrial motions, Rev. Payne testified that he learned of the April 16, 1994, incident involving the defendant and R.R. and that he spoke with the defendant about it. Payne stated that he attended a joint meeting with the defendant, the victim, and the victim's parents. Thereafter, Payne referred the defendant to Rev. Golisch for counseling. Payne noted that he would not testify about any of the conversations regarding the incident.

The defendant testified that he had numerous conversations about the incident with Rev. Payne. He admitted that he apologized to the victim at the meeting with the victim's parents. He noted that none of the participants of that meeting said ...

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