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People v. Mayo

Court of Appeals of Illinois, Second District

May 16, 2017

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
EDUARDO MAYO, Defendant-Appellant.

         Appeal from the Circuit Court of Kane County. No. 13-CF-1656 Honorable James C. Hallock, Judge, Presiding.

          JUSTICE HUTCHINSON delivered the judgment of the court, with opinion.

          Presiding Justice Hudson and Justice Birkett concurred in the judgment and opinion.

          OPINION

          HUTCHINSON, JUSTICE

         ¶ 1 Defendant, Eduardo Mayo, appeals from the judgment of the circuit court of Kane County finding him "not not guilty" of aggravated criminal sexual abuse (720 ILCS 5/11-1.60(d) (West 2012)) and battery (720 ILCS 5/12-3(a)(2) (West 2012)). Because the evidence was insufficient to support the trial court's finding as to either offense, we reverse.

         ¶ 2 Defendant was indicted on one count of aggravated criminal sexual abuse for knowingly committing an act of sexual conduct for the purpose of his or the victim's sexual gratification or arousal, where the victim was at least 13 but under 17 years old and he was at least 5 years older than the victim (720 ILCS 5/11-1.60(d) (West 2012)), and one count of battery for knowingly making physical contact of an insulting or provoking nature by grabbing the victim (720 ILCS 5/12-3(a)(2) (West 2012)). The trial court found defendant unfit to stand trial and scheduled a discharge hearing (725 ILCS 5/104-23 (West 2012)).

         ¶ 3 A discharge hearing is not a criminal proceeding. People v. Olsson, 2011 IL App (2d) 091351, ¶ 4 (citing People v. Waid, 221 Ill.2d 464, 470 (2006)). A discharge hearing takes place only after a defendant has been found unfit to stand trial, and it is a proceeding to determine only whether to enter a judgment of acquittal, not to make a determination of guilt. Id. The question of guilt is deferred until the defendant is fit to stand trial. Id. If the evidence presented at a discharge hearing is sufficient to establish the defendant's guilt, no conviction results; instead, the defendant is found "not not guilty" (id.) and is subject to further treatment, ranging from one to five years depending on the offense. 725 ILCS 5/104-25(d) (West 2012). If, at the expiration of the treatment period, the defendant remains unfit, the court must determine whether the defendant is subject to involuntary commitment; if so, the commitment cannot exceed the maximum sentence to which the defendant would have been subject had he been convicted in a criminal prosecution. 725 ILCS 5/104-25(g)(2) (West 2012). Although a judicial finding of not not guilty does not result in a conviction, the standard of proof is the same as that required for a conviction. People v. Orengo, 2012 IL App (1st) 111071, ¶ 25.

         ¶ 4 The following evidence was established at defendant's discharge hearing. Defendant, who was 23 years old, suffered a brain injury when he was 5 months old. Defendant lived in Chicago with his mother, Leonor Gonzalez, her husband, and defendant's brother and sister.

         ¶ 5 On August 10, 2013, defendant went with Gonzalez and her friends to a Walmart in East Dundee. At approximately 9:15 p.m., while the group was eating inside near the store's front entrance, Gonzalez's friend's husband went to a nearby bathroom. When defendant followed, Gonzalez told her friend's husband to keep an eye on defendant. A video surveillance recording showed that, during a period of about 45 minutes, defendant entered and exited the bathroom six times.

         ¶ 6 The alleged victim was a 15-year-old male with Down Syndrome. On August 10, 2013, the victim, his father, and his 12-year-old sister went to the East Dundee Walmart.

         ¶ 7 At approximately 9:36 p.m., while his sister waited outside, the victim entered the bathroom. Defendant entered the bathroom a few seconds later. At approximately 9:37 p.m., defendant exited the bathroom, but the victim remained inside. At approximately 9:40 p.m., a Walmart employee entered the bathroom. A few seconds later, defendant reentered the bathroom. At about 9:41 p.m., the employee exited the bathroom. About 30 seconds later, the victim exited, followed closely by defendant. The video showed the victim, as he walked away from the bathroom, looking over his shoulder at defendant.

         ¶ 8 According to the victim, as he was standing near the sink in the bathroom, defendant reached out with his hand and grabbed the victim's penis. The victim had his pants on when defendant grabbed him. The victim described the grab as hard.

         ¶ 9 The victim did not report the incident to anyone until August 12, 2013. On that morning, the victim told his sister and father that a man had grabbed him in the groin area while in the Walmart bathroom. The victim's father reported the incident to the East Dundee police.

         ¶ 10 On August 14, 2013, Pam Ely, an investigator with the Kane County children's advocacy center, and Detective Dan Duda of the East Dundee police department met with the victim. The victim told Ely that while he was in the Walmart ...


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