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