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The People of the State of Illinois v. Michael C. Rebecca

April 20, 2012

THE PEOPLE OF THE STATE OF ILLINOIS,
PLAINTIFF-APPELLEE,
v.
MICHAEL C. REBECCA,
DEFENDANT-APPELLANT.
THE PEOPLE OF THE STATE OF ILLINOIS,
PLAINTIFF-APPELLEE,
v.
MICHAEL C. REBECCA,
DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lake County. No. 07-CF-4272 Honorable Theodore S. Potkonjak, Judge, Presiding. Appeal from the Circuit Court of Lake County. No. 07-CF-4810 Honorable Theodore S. Potkonjak, Judge, Presiding.

The opinion of the court was delivered by: Justice Bowman

JUSTICE BOWMAN delivered the judgment of the court, with opinion. Justice Zenoff concurred in the judgment and opinion.

Justice McLaren dissented, with opinion.

OPINION

¶ 1 Defendant, Michael C. Rebecca, was indicted in two separate trial court proceedings for multiple sexual offenses involving multiple victims. The charges culminated in three jury trials, involving three of the victims, R.C., T.S., and A.W.

¶ 2 After the jury trial on the charges relating to R.C., defendant was convicted of 10 counts of criminal sexual assault (720 ILCS 5/12-13(a)(4) (West 2006)) and 10 counts of aggravated criminal sexual abuse (720 ILCS 5/12-16(f) (West 2006)). Defendant was sentenced to 60 years' imprisonment.

¶ 3 After the jury trial on the charges relating to T.S., defendant was convicted of 10 counts of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2006)), 10 counts of criminal sexual assault, and 8 counts of aggravated criminal sexual abuse. After the jury trial on the charges relating to A.W., defendant was convicted of four counts of criminal sexual assault and four counts of aggravated criminal sexual abuse. Defendant was sentenced to a total of 180 years' imprisonment for the charges relating to T.S. and A.W. Defendant appealed all three judgments, under case numbers 2-09-1259 (R.C.), 2-10-0303 (T.S.), and 2-11-0204 (A.W.), making many of the same arguments in each appeal. This court consolidated the appeals on our own motion.

¶ 4 Defendant argues that: (1) the trial court erred in failing to instruct the juries on aggravated criminal sexual abuse as a lesser included offense of the criminal sexual assault charges; (2) the jury instructions improperly expanded the charges in the indictments; (3) he was denied fair trials when the prosecutors made improper remarks in closing arguments; (4) trial counsel rendered ineffective assistance when certain psychological materials were submitted in error during his sentencing hearings; and (5) the evidence was insufficient to sustain his convictions of the charges relating to T.S. We affirm.

¶ 5 I. BACKGROUND

¶ 6 A. Trial Involving R.C.

¶ 7 On December 5, 2007, a grand jury issued a 99-count indictment against defendant for sexual crimes against multiple victims in trial court case number 07-CF-4272. The counts that eventually went to trial in that case related to R.C. Specifically, those counts were: counts XI through XV (criminal sexual assault where defendant held a position of trust and placed his mouth on the penis of R.C.); counts XVI through XX (criminal sexual assault where defendant held a position of trust and placed his penis in the mouth of R.C.); counts XLVII through LI (aggravated criminal sexual abuse where defendant held a position of trust and placed his penis in the hand of R.C. for the purpose of defendant's sexual gratification); and counts LII through LVI (aggravated criminal sexual abuse where defendant held a position of trust and placed his hand on the penis of R.C. for the purpose of defendant's sexual gratification).

¶ 8 On October 21, 2008, defendant filed a motion for a bill of particulars. In that motion, defendant stated that all of the counts in the indictment "include the following additional element-that when the act was committed the Defendant '...held a position of trust, authority, or supervision in relation to the victim.' " Defendant stated that the indictment was "devoid of any specific articulation of facts or evidence of any trust, authority, or supervision as to a) each individual victim, and b) *** each time and act of misconduct with the individual victim." After delays due to defendant's health problems, defendant filed on July 13, 2009, a motion to compel the State to respond to his earlier motion for a bill of particulars. On August 6, 2009, the State filed its response, which contained the following information: defendant was a friend of several of the victims' parents; each victim spent days and nights at defendant's apartment; the victims would play games on defendant's computer and watch movies or play video games on defendant's television; and defendant would provide the victims with food and drink. In addition, as to R.C., the State provided that R.C.'s parents had known defendant for over 25 years prior to November 2007, and they considered him a good friend. Further, defendant had known R.C. since he was born; R.C. spent the night at defendant's apartment on many occasions; defendant was the adult responsible for watching him; R.C.'s parents knew when he stayed with defendant overnight; and they knew of other parents who allowed their children to spend the night at defendant's apartment. On September 2, 2009, the defense again requested disclosure of specific statements or facts to demonstrate that defendant held a position of trust. The State responded that R.C. was allowed to spend many nights at defendant's home, where defendant was the adult in charge of the apartment and R.C.

¶ 9 On September 10, 2009, defendant moved to dismiss the indictment, alleging that the indictment insufficiently alleged the crimes with specificity and insufficiently alleged facts to support a position of trust, authority, or supervision. On September 11, the court heard arguments on the motion's allegation as to the position of trust, authority, or supervision. The State informed the court that it had tendered to the defense statements from the parents that addressed the issue of trust, supervision, or authority, and the matter was continued. On September 14, the court heard the motion and defendant argued that the State presented evidence on the other victims on the issue of trust, authority, or supervision but did not present specific information as to R.C.'s relationship with defendant. The State responded that it presented information as to R.C. spending many nights with defendant in defendant's home and under his care and that such evidence was sufficient to establish the position under People v. Secor, 279 Ill. App. 3d 389 (1996). The court denied the motion, finding that the State was not required to prove each element before the grand jury. Further, the court found that sufficient evidence was presented to the grand jury for it to decide to issue the indictment.

¶ 10 Defendant's trial commenced on September 15, 2009. During opening statements, the State argued that defendant held a position of trust in relation to R.C. through the nature of their relationship: that he was "Uncle Mike," a close friend to R.C.'s family for R.C.'s entire life. The State argued that defendant participated in R.C.'s holidays and birthdays and that R.C. and his parents trusted defendant enough to allow defendant to baby-sit R.C. and his siblings and provide R.C. with his medication. Defense counsel argued that, if there was no position of trust, authority, or supervision, the oral sex that occurred with R.C. after the age of 17 would be legal. Defense counsel argued that, as to "the element of position of trust and authority," it was not enough to say that the parents of R.C. trusted defendant. Defense counsel argued that defendant was not a teacher, counselor, coach, or man of the cloth.

¶ 11 P.C., the father of R.C., testified that he had two children, R.C., age 19, and E.C., age 15. P.C. met defendant while they both were employed by Abbott Laboratories, sometime before P.C. had kids. They became friends, and defendant interacted with P.C.'s whole family. Defendant would go to the movies or rent movies with the family. Initially defendant had contact with the children when he would go to the movies with the family or they would spend time at each other's homes. Over time, defendant had more social contacts with the children, such as attending birthday parties or other kinds of social events. Defendant would also interact with the children at Christmas and exchange gifts with the family. Defendant was close to the family, and the children referred to him as "Uncle Mike."

¶ 12 P.C. testified that defendant babysat the children many times over the years. P.C. gave defendant instructions on R.C.'s care, including how and when to administer R.C.'s epilepsy medication and making sure that R.C. completed his homework. As R.C. got older (around age 12 or 13), he was allowed to spend nights at defendant's home. Initially, the overnight visits occurred every other month or less. Around age 14 or 15, the overnight visits occurred approximately monthly. P.C. was never worried about R.C. while he was with defendant. The instructions P.C. gave to defendant about R.C.'s care were always followed. If R.C. had to be someplace, such as church, after spending the night with defendant, defendant made sure he got there on time. E.C. would also spend nights at defendant's home, usually when defendant's niece was visiting, as she was close to E.C.'s age. R.C. would often help defendant with household chores. In addition to the overnight visits, R.C. also spent time with defendant on outings, such as going to Cubs games or hockey games. Whenever R.C. was with defendant, P.C. considered defendant "in charge of [his] son." He also listed defendant as a medical emergency contact with R.C.'s school. On cross-examination, P.C. admitted that he never paid defendant to baby-sit.

¶ 13 J.C., the mother of R.C., testified to much of the same-that defendant was a close family friend over the course of many years. Defendant participated in many social functions with the family, including movies, sporting events, birthday parties, and Christmas. Defendant had known R.C. since the day he was born. She also testified that defendant would care for R.C. during overnight visits, including preparing his meals, ensuring that he did homework, and administering his epilepsy medication. Sometimes defendant would help R.C. with his homework, and he would take R.C. to church the next day. R.C. sometimes helped defendant with his household chores. Over the years, J.C. observed defendant correct R.C.'s behavior, such as telling him not to talk back to his parents and reminding him that he should be bringing the garbage cans back in so she would not have to do it. R.C. always listened to defendant when he told him to do things or corrected his behavior. When R.C. was in defendant's care, J.C. considered defendant "in charge" of R.C.

¶ 14 R.C. testified that he had known defendant since he was born. One of R.C.'s first memories of defendant was when he sat by the window waiting for defendant to drive up for Christmas. R.C. referred to defendant as "Uncle Mike" or just "Mike." R.C. recalled seeing defendant once or twice a month before he was in middle school. That increased to three or four times a month during middle school and more in high school. Defendant babysat R.C. on several occasions. While he was in defendant's care, defendant provided food for him, told him when he had to go to bed, and helped him with his homework. R.C. did chores for defendant when defendant asked him to. If defendant told R.C. to do anything, he did it "because he was in charge. It was his house."

¶ 15 R.C. testified that the sexual contact with defendant began when he was in sixth grade. It started when they watched the children's movie, "Lilo and Stitch," and they "mooned" each other. The mooning progressed to defendant touching R.C.'s penis when he was about 12 years old. Defendant touched R.C.'s penis "hundreds of times or more" over the years since then. R.C. testified that defendant would masturbate him until he ejaculated. R.C. also masturbated defendant until defendant ejaculated. R.C. performed oral sex on defendant, and defendant would ejaculate. Defendant also performed oral sex on R.C., and R.C. would ejaculate. R.C. testified that the "first rule at Mike's house was you don't talk about what happens at Mike's house."

¶ 16 On cross-examination, R.C. admitted that at first he did not want to speak to the police about the sexual activity, because he did not believe that defendant did anything wrong. At the time of the first police interview, R.C. was 17 years old and still did not understand that what defendant did was wrong. However, he testified, he never said anything untrue to the police or in court.

¶ 17 Detective Paul Warner testified that defendant consented to videotaping his statement. A redacted portion of the tape, which included only those portions of the interview relating to R.C., was admitted into evidence. On the videotape, defendant admitted to the mutual masturbation, mutual oral sex, and mutual ejaculation activities with R.C. Defendant stated that the abuse started when R.C. was around 14 years old. Defendant admitted that the abuse occurred in his apartment and in a car, which was consistent with R.C.'s statements. He also admitted his rule was to not tell anyone what happened at his house.

¶ 18 The redacted video, which included 16 clips, was played in its entirety for the jury. During the testimony of Sergeant Timothy Jonites, Sergeant Jonites stated that defendant volunteered that he was a friend of R.C.'s parents and that he felt that he had betrayed their trust. Defendant also told Sergeant Jonites that he was responsible for his actions because he was the adult in the situation with R.C. These statements appeared in clips 14, 15, and 16 of the video. Also in those clips, defendant stated that he knew that "these people," referring to R.C.'s parents, would not be happy, because "they trusted" him and he "let them down." Defendant acknowledged that he should not have "allowed" these events to occur, because he was "the adult." Defendant stated that he "should have stopped" the abuse but did not.

¶ 19 The State rested its case and defendant moved for a directed verdict. In that motion, defense counsel argued that R.C. did not "testify as to a position of trust and authority" and that this was key, since the State limited its charges in the indictment to "trust." That motion was denied. The defense rested.

¶ 20 During the jury instruction conference, the State submitted Illinois Pattern Jury Instructions, Criminal, No. 11.55 (4th ed. 2000) (hereinafter, IPI Criminal 4th No. 11.55), which provided the instruction on criminal sexual assault:

"A person commits the offense of criminal sexual assault when he commits an act of sexual penetration with the victim who was at least 13 years of age but under 18 years of age when the act is committed, and he is 17 years of age or older and holds a position of trust, authority, or supervision in relation to the victim."

¶ 21 Defense counsel objected, arguing that the indictment included only a "position of trust" and did not mention the terms authority or supervision. The instruction was given over objection as the court noted that People v. Kaminski, 246 Ill. App. 3d 77 (1993), did not so narrowly construe the three terms and that the instruction followed the statute under which defendant was charged. Defense counsel lodged the same objection to Illinois Pattern Jury Instructions, Criminal, No. 11.56 (4th ed. 2000) (hereinafter, IPI Criminal 4th No. 11.56), which provided the propositions that the State must prove to sustain a charge of criminal sexual assault and which included the terms "authority, or supervision." Again, the instruction was given over the objection. The same occurred for Illinois Pattern Jury Instructions, Criminal, No. 11.62B (4th ed. 2000) (hereinafter, IPI Criminal 4th No. 11.62B), which applied to aggravated criminal sexual abuse "when a defendant is a family member or in a position of responsibility or trust."

¶ 22 Defendant then tendered Illinois Pattern Jury Instructions, Criminal, No. 11.61(d)(2) (4th ed. 2000) (hereinafter, IPI Criminal 4th No. 11.61(d)(2)), an instruction on aggravated criminal sexual abuse as a lesser included offense of criminal sexual assault:

"A person commits the offense of aggravated criminal sexual abuse when he commits an act of sexual penetration with a victim who is at least 13 years of age but under 17 years of age when the act is committed and he is at least 5 years older than the victim."

¶ 23 The trial court refused the instruction, finding that the case cited in support by the defense (People v. Lawrence, 254 Ill. App. 3d 601(1993)) was distinguishable on its facts and that aggravated criminal sexual abuse was not a lesser included offense.

¶ 24 During closing arguments, the State argued that defendant held a position of trust by virtue of his long-standing friendship with the family and because R.C. often spent the night in defendant's care, with defendant providing him with food, medicine, supervision, and assistance with his homework. Defense counsel argued that, even though defendant said that he "blew the trust" of the family, it was "not that kind of trust." It was a moral trust, not a legal trust. In rebuttal, the State argued that, while the evidence showed that defendant held a position of all three-trust, authority, and supervision-any one position was sufficient to convict under the law.

¶ 25 The jury found defendant guilty of all 20 counts. Defendant filed a motion for a new trial, arguing in part that the jury instructions incorrectly included the terms "authority" and "supervision" and that the trial court improperly refused the instruction on aggravated criminal sexual abuse as a lesser included offense. The trial court reiterated that it did not believe that defendant's proposed instruction was on a lesser included offense of criminal sexual assault, and it rejected all of defendant's other contentions. The trial court concluded that there was no basis to warrant a new trial. Defendant timely appealed after sentencing.

¶ 26 B. Trials Involving T.S. and A.W.

¶ 27 The charges relating to T.S. and A.W. stem from a 152-count indictment for multiple sexual offenses involving multiple victims, filed in trial court case number 07-CF-4810. Appeal No. 2-10-0303 involves defendant's trial and convictions related to T.S.: 5 counts (counts VII through XI) of predatory criminal sexual assault of a child for knowingly placing his mouth on the penis of T.S. (720 ILCS 5/12-14.1(a)(1) (West 2006)); 5 counts (counts XVII through XXI) of predatory criminal sexual assault of a child for knowingly placing his penis in the mouth of T.S.; 10 counts of criminal sexual assault (720 ILCS 5/12-13(a)(4) (West 2006)) for committing an act of sexual penetration while in a position of trust when he knowingly placed his mouth on the penis of T.S. (counts XXVII through XXIX, XLVII, XLVIII), placed his penis in the mouth of T.S. (counts XLIV through XLVI, LXIV, LXV); eight counts of aggravated criminal sexual abuse (720 ILCS 5/12-16(f) (West 2006)) for placing his hand on the penis of T.S. while in a position of trust and for the sexual gratification of defendant (counts CXXXIII, CXXXIV, CXXXVII, CXXXVIII) and placing his penis in the hand of T.S. while in a position of trust and for the sexual gratification of defendant (counts CXXXV, CXXXVI, CXXXIX, CXL). Appeal No. 2-11-0204 involves defendant's trial and convictions related to A.W.: 4 counts of criminal sexual assault (720 ILCS 5/12-13(a)(4) (West 2006) for committing an act of sexual penetration while in a position of trust when he knowingly placed his penis in the mouth of A.W. (counts LXVII, LXVIII) and placing his mouth on the penis of A.W. (counts LXXXVII, LXXXVIII); and 4 counts of aggravated criminal sexual abuse (720 ILCS 5/12-16(f) (West 2006) for knowingly placing his penis in the hand of A.W. while in a position of trust and for the sexual gratification of defendant (counts CXLV, CXLVI) and for knowingly placing his hand on the penis of A.W. while in a position of trust and for the sexual gratification of defendant (counts CXLVII, CXLVIII).

¶ 28 On October 21, 2008, defendant filed a motion for a bill of particulars. In that motion, defendant requested more specific facts to support the indictment's allegation that he held "a position of trust, authority, or supervision in relation to the victim," because the indictment was void of "facts or evidence of any trust[,] authority, or supervision." On July 13, 2009, defendant filed a motion to compel the State to respond to his motion for a bill of particulars. On August 6, 2009, the State filed its response. Generally, the State said that defendant was a friend of several of the victims' parents, as reflected in previously tendered discovery, and that there were no written agreements or contracts between defendant and any victim or parent. Each victim, the State provided, spent days and nights at defendant's apartment, played games on his computer, and watched movies or played video games, and defendant provided them with food and drink during the visits. T.S. met defendant through his aunt, who worked with defendant. In 2002, T.S. began going to defendant's apartment and playing video games. Eventually, T.S. spent nights at defendant's apartment. Approximately June 7, 2007, T.S. stayed with defendant and then lived there through the end of August 2007. T.S.'s mother knew when T.S. was at defendant's apartment and she knew that defendant was responsible for watching him. A.W. met defendant when he was about 12 years old, and he spent at least nine nights at defendant's residence. Defendant was the responsible adult when A.W. was with him. A.W.'s parents were aware when he spent the night at defendant's home and they knew that defendant was the adult watching over him.

¶ 29 On January 27, 2010, the State filed a supplemental disclosure to defendant regarding A.W. The disclosure stated that A.W. and his mother K.W. had informed the State that A.W. stayed at defendant's home and was returned home by either defendant, A.W.'s parents, or R.C.'s parents. Defendant supplied A.W.'s meals when he was there. A.W. went shopping with defendant and assisted defendant when he moved from an upstairs apartment to a downstairs apartment. K.W. gave defendant instructions on A.W.'s care, including on providing prescription medication, and defendant followed the instructions. A.W. told the State that he performed chores while at defendant's home, including cleaning up dishes. Defendant provided food, usually pizza, and took A.W. to see a movie. Defendant provided A.W. with his medication when he stayed the night. A.W. stated that defendant paid him to baby-sit the children of defendant's friends on a couple of occasions.

¶ 30 1. Trial Involving T.S.

¶ 31 On January 25, 2010, defense counsel moved to dismiss the indictment as to T.S., arguing that there was no evidence to support the element of a position of trust. The court denied the motion. The next day, defendant's trial began on the charges pertaining to T.S.

¶ 32 C.W., the mother of T.S., testified that she first met defendant around 1999 or 2000 through a family friend named Lisa, who worked with defendant. C.W. and her children lived in Twin Lakes, Wisconsin. After first meeting defendant at Lisa's house, C.W. began socializing with defendant approximately weekly. Defendant attended family events, such as birthdays and Thanksgiving. C.W.'s children, T.S. and S.S., grew to like defendant and spent time with him regularly. T.S. referred to defendant as "Uncle Mike" and spent time at defendant's residence in Vernon Hills beginning in 2001 or 2002, when T.S. was about age 12. The overnight visits occurred over weekends, usually Friday night through Sunday, approximately once or twice a month. The visits increased to every weekend over time. During school breaks, T.S. would spend a week or two with defendant. These visits continued until T.S. was about 16 or 17 years old.

¶ 33 C.W. testified that defendant would drive from Vernon Hills to Twin Lakes to pick up T.S. for these visits. C.W. gave defendant written instructions on T.S.'s medications, such as the dosages and when the medications should be given. She also gave him notes indicating that she was T.S.'s mother and that defendant was his caretaker so that, in case of an emergency, the hospital would not give defendant problems if T.S. needed any medical attention. C.W. testified that defendant took T.S. places, such as Wisconsin Dells, Six Flags, movies, and sporting events. She further testified that defendant bought T.S. gifts, such as clothes, iPods, and shoes. C.W. identified People's Exhibit No. 1, a photograph of T.S. with defendant when T.S. was 12 years old. The exhibit was admitted over defendant's objection. On cross-examination, C.W. admitted that defendant was a close family friend but not T.S.'s teacher, paid babysitter, coach, Boy Scout leader, minister, or healthcare provider. She admitted that she did not give defendant legal guardianship and did not have a formal contract with him to care for T.S.

¶ 34 T.S. testified that he first met defendant when he was 11 years old, while at his "Aunt Lisa's" house. Lisa was the sister of T.S.'s mother's boyfriend. After the first meeting, T.S. saw defendant at family functions, such as holidays and birthdays. He also started to spend weekends and time off of school with defendant. Defendant often picked T.S. up in Twin Lakes for these overnight visits. Defendant lived in an apartment on the second floor when T.S. first started spending nights with him. At one point, he helped defendant move to a first-floor apartment. According to T.S., the weekly overnight visits continued from age 11 through age 16. He typically stayed from Friday through Sunday and slept on the floor in the living room, on a couch, or in defendant's bed. T.S. testified that, during the school year, he brought homework with him to defendant's home, and defendant assisted him with his homework. T.S. testified that defendant often did the homework for him by writing the answers down and having T.S. copy them onto his worksheets. T.S. testified that, when at defendant's home, defendant was the adult taking care of him. T.S. stated that defendant bought him clothing and electronics and took him places, such as the mall, friends' homes, sporting events, and movies.

¶ 35 T.S. stated that, when he first started staying at defendant's home, he woke up to defendant touching his penis using his mouth and hands. T.S. testified that defendant also asked him to touch defendant's penis by moving his hands up and down it. T.S. testified that defendant used his mouth and hands on T.S.'s penis from the time T.S. was 11 years old until he was about 16. Defendant told T.S. that it was "about time I get something because you're always getting everything you want," referring to the various gifts and outings he provided T.S. T.S. testified that he spent the summer of 2007 at defendant's apartment; T.S. was 16 years old at that time. During that summer, defendant put his hands and mouth on T.S.'s penis and had T.S. put his mouth and hands on defendant's penis. T.S. testified that he referred to defendant as "Uncle Mike," and he sometimes did chores for him while at his home.

¶ 36 On cross-examination, T.S. admitted that he was in a hospital for six months beginning around January 2005. During that six-month period, defendant came to visit T.S. but T.S. did not spend the night at defendant's apartment. Also during a four-month period from September 2004 through January 2005 there were no overnight visits because defendant was caring for his mother. Therefore, T.S. admitted, there was no sexual contact from September 2004 through June 2005. On redirect, T.S. stated that the sexual conduct began when he was 11 and continued through age 16, with the exception of the period between September 2004 and June 2005. The State introduced an exhibit that was a plaque that defendant made for T.S. commemorating his first hockey game with defendant. The date of the plaque was around T.S.'s twelfth birthday, which T.S. testified was around the time the abuse began.

¶ 37 Michael Keller, a detective with the Lake County sheriff's office, testified that he arrested defendant on November 2, 2007, and interviewed him along with Detective Warner. The interview was videotaped, with defendant's written consent. Detective Keller first questioned defendant regarding his relationship with T.S. Defendant told him that he was a very good friend of T.S.'s mother and that, if he were to ask C.W., she would describe defendant as somewhat of a father or surrogate father to T.S. Defendant himself described T.S. as being like a nephew to him. Defendant admitted that the "massaging" of each other's penises started when T.S. was around age 12 or 13. Defendant knew that he should not have done so, but he would massage T.S.'s penis and his buttocks and other body parts and ask T.S. to do the same for him. Defendant admitted to Detective Keller that there was mutual oral sex, meaning defendant used his mouth on T.S.'s penis and T.S. used his mouth on defendant's penis. Defendant stated that this occurred about a dozen times, but defendant was unsure and would not argue if Detective Keller said that it occurred 40 or 50 times. Defendant denied that it occurred more than 100 times.

¶ 38 The State introduced People's Exhibit No. 7, the video of defendant's interview, redacted to show only portions relating to T.S. , and played it for the jury. The content of the interview was consistent with Detective Keller's testimony. Defendant admitted that he began massaging T.S.'s penis when T.S. was 12 or 13, and that T.S. massaged defendant's penis in return. He admitted that he and T.S. were erect sometimes during this activity. Defendant admitted that mutual oral sex occurred and that they both ejaculated but never in each other's mouths. T.S. ejaculated less often than defendant. Defendant admitted that T.S. attempted to anally penetrate him one time but that defendant stopped it. He denied anally penetrating T.S. on any occasion. Defendant stated that he thought the sexual contact occurred about a dozen times over the "last couple years." However, upon further questioning, defendant said that, over the four years of contact with T.S., the sexual contact occurred fewer than 100 times but that he would not argue with estimating the number of times at 40 or 50. Defendant admitted that he was a very good friend of T.S.'s mother and Aunt Lisa and that T.S.'s mother would likely describe defendant as a father or surrogate father to T.S. Defendant himself described T.S. as a nephew. He admitted that he bought things for T.S., even before the sexual contact began.

¶ 39 Detective Warner testified that the video accurately portrayed the interview of defendant that he conducted with Detective Keller. The parties stipulated that Lake County Sheriff's Deputy Manis would testify that he interviewed T.S. on November 1, 2007, and that T.S. said that, over the past four years, beginning approximately when he was in seventh grade, he was abused by defendant.

¶ 40 During the conference on jury instructions, defense counsel proffered IPI Criminal 4th No. 11.62A and IPI Criminal 4th No. 11.61(d)(2), on the lesser included offense of aggravated criminal sexual abuse. The trial court refused the instructions, finding that aggravated criminal sexual abuse was not a lesser included offense of criminal sexual assault. The jury returned guilty verdicts on all the counts.

¶ 41 2. Trial Involving A.W.

¶ 42 On February 8, 2010, defendant moved to dismiss the indictment as to counts LXVII, LXVIII, LXXXVII, AND LXXXVIII and CXLV through CXLVIII, stating that there were no facts elicited during the grand jury hearing to support a position of trust as to A.W. The motion was denied, and trial commenced the same day.

¶ 43 K.W., the mother of A.W., testified that A.W. took prescription medications for attention deficit and hyperactivity disorder and attended special education classes at school because of his condition. She first met defendant when A.W. was in middle school. She met him through the parents of A.W.'s friend, R.C. K.W. had socialized with defendant and the parents of R.C. on some occasions. R.C. and A.W. were best friends, and A.W. started spending time with defendant through his time with R.C. A.W. started going to defendant's home sometime when he was in middle school and he continued until he was approximately 17 years old. K.W. or her husband drove A.W. to defendant's home. The parents of R.C. also took A.W. to defendant's home at times. Defendant sometimes picked A.W. up. K.W. estimated that over the years A.W. went to defendant's home approximately 12 to 15 times. A.W. first spent the night at defendant's home in seventh grade. She estimated that A.W. spent the night at defendant's home approximately 7 to 10 times. K.W. gave A.W.'s medication to defendant with instructions, and defendant followed the instructions. She knew that when A.W. was with defendant he sometimes helped defendant clean and grocery shop. Defendant fed A.W. when he was there, and K.W. trusted defendant with A.W.'s care. She knew defendant to be the only adult with A.W. when he stayed with defendant. On cross-examination, K.W. admitted that defendant was not a paid babysitter, clergyman, coach, teacher, or troop leader.

ΒΆ 44 A.W. testified that he first met defendant at a pool party at R.C.'s home for R.C.'s birthday. R.C. referred to defendant as "Uncle Mike," and defendant introduced himself to A.W. Defendant told A.W. that he was going to dinner with R.C. and some family and that A.W. was welcome to come. A.W. and his parents had dinner with defendant and R.C.'s family one time. A.W. went to defendant's home about a day or two after the pool party. A.W. went to defendant's home about every two weeks, if not more. R.C.'s parents or A.W.'s father took him to defendant's home. He and R.C. watched movies and played video games while at defendant's home. These visits started when A.W. was 15 and continued until he was about 17. While there, defendant had the boys clean and do some chores. When defendant told ...


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