Appeal from the Circuit Court of McHenry County. No. 10-CF-449 Honorable Sharon L. Prather, Judge, Presiding.
The opinion of the court was delivered by: Presiding Justice Burke
PRESIDING JUSTICE BURKE delivered the judgment of the court, with opinion. Justices McLaren and Hudson concurred in the judgment and opinion.
¶ 1 A jury found defendant, Rock J. Burman, guilty of two counts of aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(1)(i) (West 2010)), and the trial court sentenced defendant to 2 years' probation and 180 days in jail. The court also imposed a $2,500 fine. Defendant committed the offenses against two young boys in his swim class.
¶ 2 On appeal, defendant argues that he is entitled to a new trial or a credit against his fine. First, defendant argues that the prosecutor made improper rebuttal argument in that she (1) tried to incite fear in the jury by discussing abducted and missing children, (2) misstated the law by implying that evidence of touching necessarily proved that defendant acted with the "intent to arouse," and (3) explained the concept of proof beyond a reasonable doubt. Second, defendant contends that he was denied his right to a public trial when the trial court barred access to the courtroom. Third, defendant asserts that he is entitled to a $5-per-day credit for the time spent in presentence custody. We modify the mittimus to reflect the per diem credit but otherwise affirm the convictions.
¶ 4 Defendant was charged with two counts of aggravated criminal sexual abuse in that he placed his hand on the penises of two victims. A person commits aggravated criminal sexual abuse if he is 17 years of age or over and commits an act of sexual conduct with a victim who is under 13 years of age. 720 ILCS 5/12-16(c)(1)(i) (West 2010). Count I alleged that defendant committed the offense on March 2, 2010, against M.O. Count II alleged that defendant committed the offense on March 10, 2010, against J.M. Defendant was taken into custody on May 3, 2010, and released on bond on May 11, 2010.
¶ 5 Before trial, the State moved for closure of the courtroom during the testimony of M.O. and J.M. See 725 ILCS 5/115-11 (West 2010). The motion asserted that allowing the minors to testify in a closed courtroom would minimize their trauma from testifying. Defendant opposed the motion, arguing that closure would deprive him of a fair trial because members and employees of Centegra Health Bridge, where the sexual conduct allegedly occurred, and defendant's family and friends would not be allowed into the proceedings. Defendant further argued that closure could cause the jurors to emphasize the minors' testimony. The trial court reserved ruling on the motion until trial.
¶ 6 At trial, Detective Brett Nystrom of the Crystal Lake police department testified that, on March 16, 2010, Jennifer M., the mother of J.M., came to the police station to speak with him.
Detective Nystrom arranged for Lindsay Porth, a forensic interviewer, to conduct a video-recorded interview of J.M. at the Child Advocacy Center (CAC) four days later.
¶ 7 On April 1, 2010, Detective Nystrom obtained from Centegra Health Bridge a list of defendant's swimming students, and he called their parents. Angela O. was one of the parents called, and she said that her son, M.O., was a victim of defendant. Detective Nystrom arranged for Anna Krause to conduct a video-recorded interview of M.O. at the CAC. Detective Nystrom also testified that the Centegra Health Bridge pool has video cameras.
¶ 8 Following Detective Nystrom's testimony, the prosecution told the trial judge that "the child" would be the next witness, and the judge sent out the jury. The judge asked the spectators in the courtroom about their interest in the case. The judge identified an attorney representing the family of M.O., an attorney representing Centegra Health Bridge, M.O.'s father, a CAC representative, and an attorney unconnected to the case. Without objection, the judge allowed all to remain. The State requested that "movement be restricted just while the victim is on the stand so there's no distraction." The judge instructed the bailiff to close the door and deny entry to everyone while the minor testified. The jurors returned but were not given any explanation for their temporary removal or the changes to the courtroom.
¶ 9 J.M., age nine, testified that he and his older sister Kaylee had taken swimming lessons from defendant at Centegra Health Bridge. On March 10, 2010, J.M., Kaylee, and a girl named Samantha had a group lesson. Matthew M., J.M.'s father, took his children to the pool that evening. While J.M. was practicing the backstroke, defendant put his hand into J.M.'s swim trunks numerous times and touched his "privacy" as J.M. swam back and forth. J.M. did not react to the touching in any way. When the lesson ended, J.M. and his sister got out of the pool. Once J.M. and Matthew were in the locker room, J.M. said that defendant had touched his "privates." Matthew responded that he would "talk to Mom about that," and they went home. J.M. recalled going to the CAC and talking to Porth. The video-recording of the interview was published to the jury and then the trial court recessed for the day.
¶ 10 The record does not suggest that the trial judge closed the courtroom the next day, as the transcript does not mention closure. The court began the proceedings by disposing of some evidentiary motions, after which Matthew testified about taking his children to Centegra Health Bridge.
¶ 11 Matthew testified that, on the date of the incident, four children, including J.M., were in the class. Matthew was seated in the pool area, where the pool was well lit and had clear water. He checked his email and played games on his mobile device and sometimes watched the children swim. Matthew left the pool area for 15 minutes to use the bathroom and to go to his car. J.M. reported that defendant had touched his privates, and Matthew took the children home.
¶ 12 Jennifer testified that she usually took her children to their swimming lessons. J.M. wore tight trunks, "like the sleek ones for fast swimming." Jennifer went to the police station with her sister's husband, who is a lawyer. On March 22, 2010, Jennifer and Matthew took J.M. to the CAC.
¶ 13 Sam G., age 11, testified that he had taken swimming lessons from defendant at Centegra Health Bridge. Sam noticed that defendant sometimes touched a blonde kid with a short haircut and carried him around in the water.
¶ 14 Angela testified that, after she spoke on the phone with Detective Nystrom, she asked M.O. if defendant ever touched him inappropriately. M.O. said "yes" and indicated his genitals and buttocks.
¶ 15 M.O., age 10, testified that he had taken swimming lessons from defendant while Angela sat next to the pool. During most lessons, defendant touched M.O.'s penis while M.O. was practicing different strokes. The day before he testified, M.O. watched his video-recorded interview. The video was published to the jury. The transcript contains no reference to closure before or after M.O.'s testimony.
¶ 16 Justin Keating, a lifeguard and swim instructor at Centegra Health Bridge, testified for defendant. Keating served as the lifeguard for swimming lessons on March 2, 2010. Keating described the pool as very well lit and said that he did not see anything unusual. Another swim instructor, Sharon Kovar, testified that she too was in the pool area that day. Kovar gave half-hour lessons to two sisters, while defendant taught M.O. Kovar saw nothing unusual, and she specifically recalled watching defendant to see how he taught the breaststroke. A third swim instructor, Nancy Leibforth, testified that she was at Centegra Health Bridge every day in February and March 2010. Leibforth explained that sometimes she touched the children she was teaching, which could result in an accidental touch in an inappropriate place. Leibforth never saw anything inappropriate in defendant's classes.
¶ 17 Porth testified to her procedures in questioning children who claim abuse. Detective Nystrom testified that he tried to speak with Kaylee, but her parents refused the request.
¶ 18 Nina Stasinopoulos testified that defendant gave her child private and group swimming lessons in March 2010. Stasinopoulos sat at the pool deck during the lessons and never saw anything unusual.
¶ 19 In closing argument, the State recounted its evidence and commented on the witnesses' testimony. The defense responded that the case was based entirely on the words of children and that J.M. was influenced by his mother's questions. The defense ...