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12/30/96 PEOPLE STATE ILLINOIS v. ANTHONY GRANO

December 30, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
ANTHONY GRANO, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Du Page County. No. 94--CF--644. Honorable Thomas E. Callum, Judge, Presiding.

Rehearing Denied March 4, 1997. Released for Publication March 4, 1997.

The Honorable Justice Thomas delivered the opinion of the court. McLAREN, P.j., and Bowman, J., concur.

The opinion of the court was delivered by: Thomas

JUSTICE THOMAS delivered the opinion of the court:

Following a jury trial in the circuit court of Du Page County, the defendant, Anthony Grano, was convicted of criminal sexual assault (720 ILCS 5/12--13(a)(4) (West 1994)). The defendant was sentenced to four years in prison. We reverse and remand for a new trial.

FACTS

The facts relevant to our decision are as follows. At the January 1996 trial, 17-year-old K.M. testified that she first met the defendant when she joined his karate school, the Grano Karate School, at the age of six. The 40-year-old defendant was the owner of and head instructor at the karate school. The defendant was K.M.'s "sensai," her teacher. K.M. became an instructor at the karate school in 1993. Late in 1993 and early in 1994, she was at the karate school three to five times per week. On Tuesdays and Fridays, she was at the school by 4 or 5 p.m. On Wednesdays, she was there by 7:30 p.m.

K.M. further testified that the defendant initiated a physical relationship with her during the summer of 1993. The first instance occurred when the defendant drove K.M. home from the karate school. While parked in K.M.'s driveway, the defendant leaned over and French-kissed K.M. From that time forward, the kissing incidents became more passionate, occurring in the defendant's car, in his office at the karate school, and at K.M.'s house when her parents were away. On one occasion, the defendant kissed K.M. while they were in his office at the karate school. Because K.M.'s cousin, Jeff Gardner, was at the school at that time, the defendant locked the door to the office. On another occasion, the defendant kissed K.M. at her house while K.M.'s friend, Tina O'Nash, was in the next room. When O'Nash stepped outside to have a cigarette, the defendant locked the front door. He and K.M. then engaged in kissing and fondling one another. The defendant fondled K.M.'s breasts both outside and underneath her shirt. On yet another occasion, the defendant and K.M. were in the defendant's office at the karate school. K.M. was sitting on the desk while the defendant was standing between her legs. The defendant had unbuttoned a few buttons on her shirt, and they were kissing. The door suddenly opened, and Anthony Passo, another student at the school, walked in. The defendant jumped back from K.M. and pretended there was something in her eye.

In addition to these incidents, K.M. testified that she and the defendant engaged in dry sex and that she had given him a hand job to the point of ejaculation while in his office. When she and the defendant would go out for dinner with others from the karate school, they would sit next to one another and the defendant would place his jacket over his lap and their hands. They would rest their hands on each others' knees and the defendant would move her hand toward his groin area.

K.M. testified that in August 1993, the defendant drove K.M. and two other students, 23-year-old D.J. and 15-year-old Tara Romanow, to a karate tournament in Tennessee. During the ride, the defendant engaged K.M. in a graphic sexual conversation.

According to K.M., in February 1994, she and the defendant were kissing in his office at the karate school. He was sitting on his desk and she was standing between his legs. The defendant then stuck his hand down her pants and penetrated her vagina with his finger. K.M. was 15 years old at the time. K.M. testified that they never engaged in oral sex. She also testified that they never engaged in sexual intercourse, although the defendant had made arrangements to do so at a local hotel. She stated that he called her at home to discuss the arrangements one time when her friend, Kim McCullough, was there. She asked McCullough to pick up another extension and listen to their conversation. In February 1994, they both went to the hotel along with a group of karate students, but did not engage in sexual intercourse. That month, K.M. stopped attending the karate school.

K.M. testified that she eventually told her aunt what had been going on between her and the defendant. K.M. agreed to allow an investigator from the Du Page County Children's Center to tape phone conversations between her and the defendant on March 11 and March 14, 1994. The tapes were introduced at trial and admitted into evidence.

Anthony Passo testified that he was a student at the Grano Karate School. On one occasion, he opened the closed door to the defendant's office and walked in. He observed that K.M. was sitting on the desk and the defendant was standing close to her between her legs. K.M.'s shirt was partially unbuttoned and her makeup was smeared. Passo also testified that he saw the defendant place his hand on K.M.'s leg while seated at a table when the class went out for dinner.

Kim McCullough testified that she was a student at the Grano Karate School. On February 10, 1994, she was at K.M.'s house; at K.M.'s request, she listened in on a phone conversation between K.M. and the defendant about sex. She stated that she had seen the defendant place his hand on K.M.'s lap frequently while seated at a table when the class went out to dinner. McCullough also testified that she saw K.M. go into the defendant's office alone quite a few times. They would shut the door. Once, she saw K.M. leave the office with her shirt unbuttoned and untucked. K.M. immediately went to reapply her makeup in the bathroom.

Tina O'Nash, a friend of K.M.'s, testified that she was at K.M.'s house in January 1994. The defendant stopped over. O'Nash heard K.M. and the defendant kissing and moving around on the plastic covered couches in the family room. She observed that K.M. and the defendant were alone five or six times in the defendant's office sometimes with the door locked. She also observed the defendant rub K.M.'s leg while seated at a table when they all went out to eat at a local restaurant.

At trial, Tara Romanow testified that the defendant drove her to a karate tournament in the summer of 1993, along with K.M. and D.J. She stated that the defendant engaged them in a graphic conversation about sex and asked them not to tell anyone about their conversation, especially his kids. When the class went out to eat at a local restaurant, she saw the defendant and K.M. holding hands many times underneath the table. K.M. was often alone with the defendant in his office and the door would be closed. Sometimes when K.M. exited the office, her shirt would be messy and she would go straight to the bathroom to reapply her lipstick. According to Romanow, during a conversation between her and K.M. in February 1994, K.M. acknowledged having had oral sex with the defendant.

Jeff Gardner, K.M.'s cousin, testified that he was a student at the Grano Karate School. He often saw K.M. go into the defendant's office alone and close the door. Once, when he tried to open the door, he found it to be locked. When he went out to eat after class, many times he saw the defendant and K.M. holding hands under the table and noted their hands to be moving around beneath the defendant's jacket. The defendant often dropped Gardner and K.M. off at K.M.'s home after class. Once, the defendant came into K.M.'s home, and Gardner saw him kiss K.M. as she walked him out the door.

Jeff DiGangi, a friend of the defendant, testified that from August 1993 through February 1994, he attended classes at the Grano Karate School. Classes were held at the school four days each week. DiGangi arrived between 4 and 4:30 p.m. and the first classes started about 5:30 p.m. He testified that K.M. would show up at 5:30 p.m. when she had to instruct class or later to attend her 8:30 p.m. class. The door to the defendant's office was always open. He never saw K.M. and the defendant alone in the office and never saw them hold hands when the group went out to dinner after class. On April 14, 1994, he confronted K.M. about rumors he had been hearing regarding K.M. and the defendant. K.M. denied having had oral sex with the defendant but confirmed that the defendant had "fingered" her. DiGangi also testified that K.M. had a reputation among students at the school for not telling the truth.

Several other students at the Grano Karate School testified for the defendant. Denise Fessenden testified that she attended classes on Tuesdays and Thursdays. She arrived between 8 and 8:30 p.m. K.M. always arrived late to class. Although the door to the defendant's office was closed at times, people would still enter the office without knocking. Fessenden also testified as to K.M.'s reputation for lack of truthfulness. Eric Jaegar testified that in early 1994 he was always the first to arrive at the karate school and that K.M. never arrived before 6:30 p.m. The defendant usually did not arrive until 7:30 p.m. Robert Mercier testified that his son had been attending the Grano Karate School for four years. He usually arrived at 6 p.m. The door to the defendant's office was always open.

Kathleen Wilson, K.M.'s aunt, testified that she had a conversation with K.M. early in 1994 regarding allegations that K.M. had made against the defendant. According to Wilson, K.M. told her that she had been involved in a relationship with the defendant and that he was pressuring her to do things. When Wilson asked if that included oral sex, K.M. responded with a shrug, which Wilson took to mean yes.

Sean Contreras, the defendant's nephew by marriage and business partner, confronted K.M. with the rumors he had heard about her and the defendant. K.M. was very upset, sobbing, and hesitant. She told him that the defendant "went down my pants and touched my breasts" but vacillated in her response as to whether she had engaged in oral sex with the defendant. Contreras observed K.M. to be alone with the defendant in his office with the door closed for 15 to 20 minutes on two occasions.

Robert Holguin, an investigator with the Du Page County Children's Center, testified that he interviewed K.M. and several other people. According to Holguin, K.M. told him that she and the defendant had begun a physical relationship in the six or seven months prior to February 1994. That relationship began with kissing, then progressed to fondling of her breasts and vaginal area. Eventually, the defendant inserted his fingers into her vagina. The physical contacts would occur two to four times per week, at the karate school, in his car, and once at K.M.'s home while her parents were away.

The jury returned a verdict of guilty on the criminal sexual assault charges. The defendant was later sentenced to four years' imprisonment. He filed a timely appeal.

ANALYSIS

On appeal, the defendant raises seven issues for our review. He contends that (1) he was denied his constitutional right to a fair trial as a result of prosecutorial misconduct; (2) the trial court improperly barred evidence under the rape shield statute; (3) the criminal sexual assault conviction must be reversed because the State failed to prove him guilty beyond a reasonable doubt; (4) the trial court erred in denying his motion to suppress tape recordings of conversations between him and K.M.; (5) the trial court erred in denying his motion to dismiss the indictment because the criminal sexual assault statute is unconstitutionally vague; (6) the trial court abused its discretion in ruling he was barred from presenting impeachment evidence on hearsay grounds; and (7) the statutory sentencing scheme under which he was sentenced is unconstitutional.

The defendant initially contends that he was denied his constitutional right to a fair trial as a result of prosecutorial misconduct. These alleged instances of prosecutorial misconduct include: (1) inflammatory and prejudicial remarks during closing argument; (2) improper questioning and elicitation of answers from ...


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