from the Circuit Court of McLean County No. 14CF1469
Honorable Robert L. Freitag, Judge Presiding.
Attorneys for Appellant: James E. Chadd, Patricia Mysza, and
Michael Gentithes, of State Appellate Defender's Office,
of Chicago, for appellant.
Attorneys for Appellee: Don Knapp, State's Attorney, of
Bloomington (Patrick Delfino, David J. Robinson, and Kathy
Shepard, of State's Attorneys Appellate Prosecutor's
Office, of counsel), for the People.
JUSTICE DeARMOND delivered the judgment of the court, with
opinion. Justices Steigmann and Harris concurred in the
judgment and opinion.
1 In June 2016, a jury found defendant, Christopher James
Hinthorn, guilty of predatory criminal sexual assault and
criminal sexual assault. The trial court sentenced him to
consecutive 18-year prison terms on three counts of predatory
criminal sexual assault and imposed separate sexual assault
and sex offender fines.
2 On appeal, defendant argues (1) the trial judge should have
recused himself, (2) the judge improperly admitted evidence,
(3) the State failed to prove him guilty beyond a reasonable
doubt, and (4) the judge erred in the imposition of various
fines. We affirm the trial court's judgment and remand so
defendant may file a motion regarding his fines pursuant to
Illinois Supreme Court Rule 472 (eff. May 17, 2019).
3 I. BACKGROUND
4 In December 2014, a grand jury indicted defendant on three
counts of predatory criminal sexual assault of a child
(counts I, V, and VII) (720 ILCS 5/11-1.40(a)(1) (West
2012)), alleging defendant, being over 17 years of age,
knowingly committed an act of sexual penetration involving
his penis and R.H.'s vagina when R.H. was under 13 years
of age. The State alleged defendant committed the offenses
between April 1, 2005, and April 1, 2006 (count I), and
between April 2, 2006, and April 1, 2011 (count V). The State
later amended the indictment to allege defendant committed
the offenses set forth in count VII between April 1, 2005,
and April 1, 2012.
5 The grand jury indicted defendant on the offense of
predatory criminal sexual assault based on an accountability
theory (count III), alleging defendant, or one for whose
conduct he was legally accountable, being over the age of 17,
knowingly committed an act of sexual penetration involving
the tongue of H.H. and R.H.'s vagina when R.H. was under
13 years of age. The State alleged defendant committed the
offense set forth in count III between April 1, 2005, and
April 1, 2006.
6 The grand jury also indicted defendant on four counts of
criminal sexual assault (counts II, IV, VI, and VIII) (720
ILCS 5/11-1.20(a)(3) (West 2012)). Count II alleged, between
April 1, 2005, and April 1, 2006, defendant knowingly
committed an act of sexual penetration with R.H., a person
under the age of 13, the act involved defendant's penis
and R.H.'s vagina, and defendant was a family member of
R.H. Count IV alleged, between April 1, 2005, and April 1,
2006, defendant, or one for whose conduct he was legally
accountable, knowingly committed an act of sexual penetration
with R.H., a person under the age of 18, the act involving
H.H.'s tongue and R.H.'s vagina, and defendant was a
family member of R.H.
7 Counts VI and VIII alleged defendant knowingly committed an
act of sexual penetration with R.H., a person under the age
of 18, the act involved defendant's penis and R.H.'s
vagina, and defendant was a family member of R.H. Count VI
alleged defendant committed the offense between April 2,
2006, and April 1, 2011. Although count VIII alleged
defendant committed the offense between April 1, 2011, and
April 1, 2012, the State later amended the count to allege he
committed the offense between April 1, 2005, and April 1,
8 A. Pretrial Motions
9 1. Motions for Substitution of Judge and Recusal
10 In August 2015, defendant filed a motion for substitution
of judge pursuant to section 114-5 of the Code of Criminal
Procedure of 1963 (Procedure Code) (725 ILCS 5/114-5 (West
2014)). The motion alleged Judge Robert Freitag was the
assistant state's attorney assigned to prosecute
defendant on two counts of criminal sexual assault in McLean
County case No. 97- CF-1189. The alleged victim in that case,
H.H., who is defendant's ex-wife, was disclosed as a
witness against him in the current case. The motion also
alleged then-prosecutor Freitag signed an information in
October 1998 charging defendant with domestic battery and
later signed a plea agreement. Defendant argued that,
"although no actual prejudice is alleged against Judge
Robert Freitag[, ] the scenario certainly could and probably
does pose an appearance of impropriety." While the
motion asked that Judge Freitag recuse himself, defense
counsel later stated he was asking for the appointment of a
new judge to make the determination on the motion.
11 Upon assignment, Judge Matthew J. Fitton conducted a
hearing on defendant's motion for substitution of judge.
Per defense counsel's request, Judge Fitton took judicial
notice of McLean County case No. 97-CF-1189. Defense counsel
argued, based on Judge Freitag's prior involvement with
defendant's criminal case, he had knowledge of disputed
evidentiary facts concerning the current proceeding and it
would be improper for him to preside as judge.
12 Judge Fitton noted a judge's previous position as a
prosecutor involving a supervisory position over the case is
insufficient, standing alone, to establish cause for
substitution. He stated there had been "no showing that
Judge Freitag has a personal bias or prejudice concerning a
party" and Freitag's position as prosecutor, without
more, was insufficient to grant the motion. Thus, Judge
Fitton denied the motion and ordered the case to remain
before Judge Freitag.
13 In October 2015, defendant filed a motion asking Judge
Freitag to recuse himself under Illinois Supreme Court Rule
63(C) (eff. July 1, 2013). Based on Judge Freitag's
previous involvement as a prosecutor in the prior charges
against defendant and involving H.H., the motion claimed it
could be necessary to interview Freitag as a potential
witness who could impeach H.H.' s testimony at trial.
Thus, "since there is a real possibility that Robert
Freitag may be called or at least interviewed as to
surrounding circumstances relevant to issues in this
matter," defendant argued it would be appropriate for
Freitag to disqualify himself from further involvement in the
14 In January 2016, Judge Freitag conducted a hearing on
defendant's motion and took judicial notice of McLean
County case No. 97-CF-1189. H.H. testified she was the named
victim in the 1997 sexual assault indictments against
defendant, who was her husband at the time. She had
conversations with the prosecutor, Robert Freitag, but she
did not recognize him at the hearing. She asked him to drop
the charges against defendant, but Freitag declined to do so.
15 In his argument, defense counsel stated evidence would be
presented in a future hearing on a motion in limine
in which specific information from the 1997 case would be
heard, which could impact Judge Freitag's ruling on the
motion. Further, if H.H.'s testimony needed to be
impeached, the defense might have an obligation to disclose
Freitag as a witness for impeachment purposes.
16 Judge Freitag noted that, if a judge was a potential
witness in a case in which he or she was presiding,
"recusal would be the appropriate remedy." While
acknowledging he was the prosecutor in the prior case,
Freitag stated he had "no independent recollection of
the matter in 1997." He also stated, in part, as
"Prior to this issue being raised in this court,
[defendant] had appeared in front of the court several times
with the Public Defender. I did not realize that I had once
prosecuted [defendant] during any of those hearings. I had no
realization of that until these motions were brought. These
motions relate to contacts between this court and the alleged
victim in that case, [H.H.], who testified here today. I will
say frankly that I was very relieved when she said she
didn't recognize me because I didn't want to
disrespect her by indicating that I don't recognize her
either. She did testify that she believes that we met at one
point, but what I think is very important here is that she
also testified that other than her recollection that she
asked me to drop the charges, she has no other recollection
of what was discussed. She doesn't recall the specifics
of what was discussed. She doesn't recall any reason she
may have given for her request or anything further, and
frankly, I have absolutely no memory of that meeting. I'm
not saying it didn't take place. Not by any means am I
suggesting that. But I have absolutely no memory of
specifically individually speaking with [H.H.] about
The crux of the motion here today seems to be that this
court, that I am a potential impeachment witness.
In order for me to be an impeachment witness, number one,
[H.H.] would have to have some memory of statements she made,
and I would have to have some memory of different statements
or inconsistent statements that she made. Neither one of
those are present in any of the evidence that the court has
heard today because she has no recollection of what she said.
I certainly have no recollection of meeting with her or
anything she may have said if I did meet with her. So I
don't see how I could possibly be called as an
impeachment witness under those circumstances.
Now, [defense counsel] has suggested that if this-if I were
not presiding in this case that he could provide me with
information that may refresh my recollection on some of these
points. Well, maybe yes, maybe no, I don't know.
Certainly seeing her and hearing her testify that we met,
that doesn't jog my memory at all. I have no recollection
of meeting with her.
The only recollection I have of this case now that it has
been brought to my attention is I have some vague
recollection that I believe the victim recanted and that had
something to do with how the case was resolved. Other than
that-and I don't even know if that's correct,
frankly. But I have some vague memory that that may have been
something that occurred in this case. Maybe I'm confusing
it with a different case. I don't even know-
SPECTATOR: No, it's the correct one.
THE COURT: Ma'am, ma'am, please be quiet.
So the court has no recollection of that either. So I
don't know if that's correct or that's not
correct. But that may be what happened in this case.
But the point I'm trying to make here is I don't know
how I could possibly testify when I have no memory of
anything being said to me that could possibly impeach this
witness if she were a witness."
17 Referencing the pending pretrial motions, Judge Freitag
stated that, if he had any knowledge of any facts relevant to
those motions, he "wouldn't hesitate to recuse"
and "would do it in a heartbeat" because he had
"plenty of cases to fill [his] docket." As he had
no recollection of the facts of defendant's prior case,
Freitag denied the motion. He added that, if during the
motion hearings he recalled "something that may or may
not be relevant to impeachment" or remembered facts that
could arise in this case, he "would obviously recuse
immediately." Freitag also stated he was preparing to
take an extended medical leave and a new judge would be
hearing the motions.
18 2. Other-Crimes Evidence
19 In March 2015, the State filed a motion pursuant to
section 115-7.3 of the Procedure Code (725 ILCS 5/115-7.3
(West 2014)) to admit testimony of other-crimes evidence
involving the forcible vaginal penetration of H.H., a family
or household member, after defendant had consumed alcohol.
20 Defendant filed a motion in limine, asking the
trial court to prohibit the State from introducing at trial
any evidence of unlawful or immoral acts perpetrated against
H.H. by defendant during the course of their marriage or at
any other time. Defendant claimed the State's discovery
included allegations from H.H. that defendant engaged in
sexual activities with her that were against her will and
those acts had no relevance to the pending charges.
21 The State also filed notice of its intent to use
statements of R.H. to multiple witnesses pursuant to section
115-10 of the Procedure Code (725 ILCS 5/115-10 (West 2014)).
22 Judge Rebecca S. Foley conducted a hearing on the motions.
On its section 115-10 motion, the State called P.H., who was
16 at the time of the hearing and a cousin of R.H., who was a
year younger. P.H. testified regarding statements R.H. made
about defendant touching her. J.H., P.H.'s mother, also
testified regarding R.H.'s disclosures of sexual abuse.
Judge Foley found three statements met the criteria of
section 115-10 and allowed their use at trial.
23 In terms of the State's section 115-7.3 motion and
defendant's motion in limine, both referring to
defendant's sexual assaults on H.H., Judge Foley heard
the parties' arguments and then recessed the hearing to
watch video interviews of defendant and H.H. Thereafter,
Foley acknowledged "some of those collateral offenses
are acts of some probative value," but "the
prejudicial effect does outweigh any potentially probative
effect." Thus, Foley denied the State's section
115-7.3 motion and allowed defendant's motion in
24 After the State filed a motion to reconsider the ruling on
its section 115-7.3 motion, Judge Foley noted the parties
could raise and address issues that arise during trial and
that Judge Freitag could make a determination if information
is appropriate as other-crimes evidence as opposed to
evidence offered under section 115-7.3.
25 B. Jury Trial
26 Defendant's jury trial commenced in June 2016. R.H.,
born in 2000 and 16 years old at the time of trial, testified
defendant is her father and H.H. is her mother. When she was
"[a]round five" years old, defendant came into her
bedroom and she remembered "feeling that [her] pants
were going down." With defendant on top of her, she
remembered "pain and the smell of alcohol." She
stated she felt pain in her "lower area." R.H.
testified defendant's "lower part of the body"
entered the front of hers. She thought she "passed
out" because she did not "really remember anything
27 R.H. testified defendant engaged in similar conduct on
"three or four" occasions. During the last
occurrence, she was "seven or eight" years old. She
stated the incidents always occurred in her bedroom and she
did not remember anyone else being there. When she was 12 or
13 years old, R.H. stated she told her aunt and her cousin
P.H. She also told her mother, her youth leader, and her
28 On cross-examination, R.H. testified she, her mother, and
her brother moved out of the family home in 2009. She spoke
with her youth leader, Candi Evans, in 2014, and then met
with a representative of the Department of Children and
Family Services (DCFS) and a police officer. She later spoke
with Mary Whitaker at the Children's Advocacy Center.
When asked by defense counsel whether she remembered telling
Whitaker that the first incident occurred on her bed, R.H.
remembered saying it occurred on the floor because
"there was a mattress on the floor." She stated she
was wearing Pink Panther pajamas at the time. Defendant
pulled her pants down to her knees. She recalled seeing blood
on her pajamas the next day, although she did not think she
mentioned it to Whitaker. R.H. stated the incidents stopped
when she moved out of the house in 2009. She also stated she
did not tell Evans that the last time defendant touched her
inappropriately was within a year of her conversation with
29 Dr. Helen Appleton, a clinical psychologist, testified as
an expert in disclosure of child sexual abuse. She stated
"very few children disclose" their experiences of
sexual abuse "right away." When delayed disclosure
occurs, it is often made to a peer or the nonoffending parent
after a triggering event and in a piecemeal fashion.
30 Maureen Hofmann testified as an expert in childhood sexual
abuse trauma. When asked if a child were abused three or four
times over the course of several years and made a delayed
disclosure months after the last instance of abuse, would she
expect to see any evidence of trauma, Hofmann opined she
"would be surprised" to find any evidence because,
outside a 72-hour window, 95% of the exams are normal.
31 Candi Evans, a youth minister at Heyworth Christian
Church, testified she participated in a service in November
2014 in which families were discussed. She noticed R.H.
became "visibly upset" and began crying. After the
service and in Evans's ...