Appeal from the Circuit Court of the 10th Judicial Circuit,Peoria County, Illinois No. 08--CF--1090 Honorable James E. Shadid, Judge, Presiding.
The opinion of the court was delivered by: Justice Schmidt
JUSTICE SCHMIDT delivered the judgment of the court, with opinion.
Justices Lytton and McDade concurred in the judgment and opinion.
The State charged defendant, Stephen Chromik, with one count of criminal sexual assault (720 ILCS 5/12-13(a)(4) (West 2008)) and one count of aggravated criminal sexual abuse (720 ILCS 5/12-16(d)(West 2008)) for conduct that occurred with a minor, K.B. The case proceeded to jury trial in the circuit court of Peoria County. The jury acquitted defendant of the criminal sexual assault charge but convicted him of aggravated criminal sexual abuse. This is defendant's direct appeal from that conviction in which he claims the evidence adduced at trial was insufficient to convict him beyond a reasonable doubt, the trial court impermissibly infringed on his right to confront witnesses and remain silent, the trial court erroneously admitted both prior bad acts evidence and a document containing text messages, and his sentence is improper.
The bill of indictment charged that defendant committed criminal sexual assault in that on or about May 9, 2008, to June 1, 2008, he knowingly performed an act of sexual penetration with the victim, a person over 13 years of age but under 17 years of age, while standing in a position of trust, authority or supervision to the victim. It further charged that during that same time frame, defendant committed aggravated criminal sexual abuse by knowingly committing an act of sexual conduct with the victim for the sexual arousal or gratification of the defendant or victim, who was at least 13 years of age but under 17 years of age when the act was committed and the defendant was at least five years older than her.
At trial, the victim, K.B., testified that her date of birth is September 25, 1991, and she attended Metamora Township High School during the 2007-08 school year. She played on the varsity soccer team in the spring of 2008, a time when she was 16 years of age. Defendant was her instructor in home economics for each semester of the 2007-08 school year and was also the assistant varsity soccer coach. She considered defendant to be unfriendly to her in the fall of 2007. His unfriendly conduct continued through the spring semester of 2008.
K.B. noted that on May 1, 2008, prior to a soccer game, she went to a shed where her team kept soccer equipment to gather it for their game. She walked to the shed with defendant, began gathering equipment for the game, and discussed the team meal with defendant. While in the shed, defendant asked K.B. "what [she] was good at." She inquired as to what defendant was talking about when defendant told her to "come here." After she walked over to him, defendant grabbed her by the belt, pulled her toward him, and put his hands up her shirt. His hands were under her shirt near her ribs before she "pushed his hands down."
K.B. continued by noting that after she pushed defendant's hands down, he put them back on her belt loop "before he started putting them down my pants." His hands made it "several inches [down] before" she "pulled his hands out." The victim noted that immediately after this incident she "was really scared, intimidated." Nevertheless, she asked defendant to help her carry equipment from the shed. She did not report the incident that day. She went to the soccer game. Later that evening, she told her friend A.H. about the incident. A.H. did not testify at K.B. also testified that one week later, on May 9, 2008, her soccer team played their biggest rival and lost the match. Despite having plans to go to the house of a friend, she went home instead and received a call from defendant. Defendant asked her to meet him that evening at a gas station. She did, but while at the station neither exited their vehicles. Per his instructions, she followed defendant to his apartment in Peoria.
The victim noted that when they arrived at defendant's apartment, they watched the highlights of the soccer game on television. After that, defendant took out a deck of cards, two fifths of alcohol, and two shot glasses so they could play a drinking game. Over the next 30 minutes, she consumed five shots of vodka with the defendant. Defendant then began kissing her. He took off her pants and underpants and touched her vagina, legs, stomach and "all over the rest of [her] body." The next thing K.B. remembers is waking up between 6 and 7 a.m. the next morning to the sound of defendant's alarm clock. When she awoke, she was naked and defendant was asleep next to her also naked.
At trial, K.B. did not recall whether she had intercourse with defendant that night. She understood the meaning of intercourse and had "had sex" before that night. However, she did not remember having a feeling or indication that she had engaged in sex with defendant that night. She saw no blood, semen or dried fluids on the bed. When she awoke, she did not shower, but put on her clothes from the night before and went to her car to retrieve running clothes as she was scheduled to run in the Race for the Cure that morning.
K.B. indicated she changed into her running clothes in defendant's apartment. She felt sick to her stomach, but ran the three-mile race anyway. She and defendant drove to the race in their own vehicles and, when she approached the spot where contestants were to park and gather, she veered off to take a slightly different route than defendant so the two would not arrive at the same time. She ran the 5-kilometer race in approximately 24 minutes, besting 12 of the 15 other girls from her soccer team that also ran in the race.
The victim continued her testimony by noting that defendant's behavior toward her at school did not change after the night in his apartment. He was still mean to her and she still feared and was intimidated by him. He asked her several times to get together, which she did not like. K.B. told her friends A.H. and L.H. about the situation with defendant.
K.B. testified that she spent a second night at defendant's apartment approximately a week or two after the first night. She could not recall the specific date, but knew it was an evening she was working in a restaurant and had been released early. Defendant asked her to come to his apartment that evening to create going-away presents for departing senior soccer players. K.B. stated she went to defendant's apartment under compulsion of her fear of him. She believed, in advance, that there would be alcohol and sexual advances. Upon her arrival, defendant had a large drink with strong alcoholic content mixed for her. Intimidation led her to drink the cup as she was told.
The victim noted that after she helped defendant create "senior pages," he began kissing and touching her. Defendant removed her clothing and the two had intercourse. While she had partial memory loss from the alcoholic consumption, she specifically remembered having intercourse with defendant the second time she was at his apartment.
K.B. continued her testimony, indicating that following the second evening, defendant treated her the same way he always had. He was mean to her and she still felt threatened and intimidated by him. Then, in early June of 2008 while at a graduation party, she discussed the events that took place in the equipment shed with a graduating senior. The graduating senior then reported the situation to the school administration, which triggered an investigation.
The victim testified that she is familiar with defendant's telephone number as he sent it to her via Facebook. She exchanged a number of text messages with defendant. She presented a number, but not all, of these messages to the administration at Metamora Township High School. In the principal's office, with the principal and superintendent present, K.B. read text messages she received from defendant. As she read the messages, the principal typed their content into a computer. It appeared to her that the principal accurately typed what she read to him. She read each message to him, including the date and time each message was sent. Once finished, the principal printed out the document, she read it, and signed it. She did not save and dictate every message received from defendant and she deleted all the messages she sent him.
K.B. identified photographic exhibits as pictures taken of defendant's apartment. She remembered defendant's bed was smaller than a queen and that it had green sheets. K.B. described the layout of defendant's apartment and noted he owned a couch with one arm missing. She noted defendant had an alarm clock in his bedroom and she could see at night by the light of the bright alarm clock. Clothing was piled up in bunches on the floor.
Finally, K.B. admitted her trial testimony differed from her statement given when interviewed by police in July of 2008 and from her testimony given to the grand jury. Before the grand jury, K.B. testified that she had sexual intercourse with defendant on two separate occasions; at trial she could not recall whether she had intercourse the first night she stayed at defendant's apartment.
Gregory Christy testified that he has been the principal of Metamora Township High School for the past 21 years. Defendant taught and coached there in the 2007-08 school year. One day, a guidance counselor came to Christy regarding allegations raised by some of the victim's friends. A June 3, 2008, meeting took place in which K.B. discussed the allegations. This meeting, the first to Christy's knowledge, involving the victim and school officials, was attended by the two senior students, the guidance counselor, K.B. and Christy. Christy and the superintendent then met with K.B. and her mother and father two days later.
Christy acknowledged that he is a mandated reporter under the Abused and Neglected Child Reporting Act (325 ILCS 5/1 et seq. (West 2008)) and that, as such, he has a duty to immediately notify the police or the Department of Children and Family Services (DCFS) if "something has occurred." He did not report this incident. The superintendent ultimately reported the incident, but Christy did not know on what date the reporting occurred.
Christy also met with defendant and the superintendent at defendant's request on June 3, 2008. Christy asked defendant if any calls or communication had taken place between defendant and the victim. Defendant told Christy that there had been communication between the two but only regarding soccer scheduling.
The principal concluded his testimony by discussing the document he created that cataloged the text messages from defendant. His testimony mirrored the victim's in that he recalled she read the messages to him while viewing her phone, and he transcribed what she read. He acknowledged that his spell-checking function on the word processing program being used had changed some of the spellings of what he typed. He could not identify which messages on the document were affected by that spell-check and which were not. Neither he nor the superintendent compared the document to the messages on K.B.'s phone. K.B. did compare the document to the messages and he relied on her truthfulness for that purpose.
Kenneth Maurer testified that he is the superintendent of the Metamora Township School District. He met with defendant and the victim concerning this matter. Defendant told Maurer that he spent approximately 10 to 15 minutes in the shed with K.B. which violated one of his own rules in that he was alone with a student for too long. He informed Maurer that nothing inappropriate occurred and the two merely bantered back and forth. Maurer identified photocopies of text messages sent from the victim to defendant after the victim had been instructed not to have any contact with defendant.
Maurer noted in his testimony that he did not report any activity to either the police or DCFS for more than 30 days after first hearing of the incident in the shed, even though he is a mandated reporter pursuant to statute. He stated his reporting duties are triggered if "we have evidence of sexual relationship between an adult or a staff member with a child." When asked if "an allegation that a teacher has attempted to place his hands up her shirt and his hands in her pants" would "trigger an immediate report to DCFS," Maurer replied, "It would if she was consistent in that allegation. She wasn't."
Detective David Nelson testified that he is a juvenile investigator employed by the Peoria police department. DCFS notified him that it was initiating an investigation into contact between K.B. and defendant. During his interview with defendant, defendant admitted to contacting K.B. by phone and texting. Defendant informed Nelson that he did not touch K.B. in the shed at Metamora Township High School.
Detective Nelson indicated he obtained defendant's cell phone records from Sprint. The records indicate that from May 3, 2008, to July 8, 2008, exactly 386 calls and text messages were sent between the parties. Defendant initiated contact, via phone call or text message, with K.B. 180 times and K.B. initiated contact with defendant 186 times. On May 9, 2008, the day of the soccer match with Notre Dame, there were eight contacts between the two. On May 10, 2008, there were 18 contacts. The highest volume of daily calls occurred on June 3, 2008, the date the victim first met with the principal and superintendent. Ninety-six contacts took place that day with the defendant initiating 60 of those contacts and K.B. the other 36. Nelson noted that he compared the document created by principal Christy to defendant's cell phone records and the dates and times of the text messages Christy cataloged matched Sprint's records for outgoing text messages from defendant's phone.
Detective Nelson testified that the Peoria police department employs personnel that could have conducted a forensic analysis of K.B.'s or defendant's cellular telephone in an attempt to retrieve deleted messages. That was not done in this investigation even though he knew messages had been deleted.
Defendant testified on his own behalf. He denied that he ever had inappropriate contact with K.B. in the equipment shed. He indicated the shed is not in a secluded area of the school but instead near the track where people could see into it throughout the day. He never had sex with K.B. and she has never been in his apartment.
Defendant reviewed the text messages that K.B. read to the principal and disagreed with the testimony of K.B. as to what they meant. He admitted that he sent text messages that read:
"Some fake crying would help, just say you made it up and you don't want to talk about it anymore. You have to say nothing happened because they think something did."
"Mr. C is tricky and gay."
"Don't let him and your dad pressure you again."
"I know you don't want to lie, but Mr. C is almost making you because he's dumb."
"I got a call from the school this morning but didn't answer it or call back."
Defendant claimed his only intent in sending messages to K.B. was to encourage truthfulness. He noted the unsaved text messages between the two discussed K.B.'s fear of being disciplined after becoming drunk at a party with a senior soccer player.
Defendant noted that his apartment experienced flooding throughout the month of May of 2008, leaving the carpets wet and an overpowering smell within the apartment. He discussed this problem with his apartment manager, Tonya Brewer, and maintenance worker Allen Adcock. He would frequently leave the drapes and windows open in his garden-level apartment and noted that everything K.B. described about his apartment could be seen from the outside by looking through the windows. He never owned a brightly lit alarm clock and uses the alarm on his cellular telephone to wake up. He owned navy blue sheets and never owned green sheets. He never had clothing bunched up anywhere on the floor in May of 2008 as he had a metal clothing stand in his bedroom for it. He neither owned shot glasses nor had any hard liquor in his apartment.
Defendant continued by indicating that in May of 2008, he executed a contract for the purchase of a home and was in a long-term, serious relationship with a girlfriend. He had purchased a new car ...