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People v. Hinthorn

Court of Appeals of Illinois, Fourth District

October 1, 2019

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
CHRISTOPHER JAMES HINTHORN, Defendant-Appellant.

          Appeal 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.

          OPINION

          DeARMOND JUSTICE

         ¶ 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, 2012.

         ¶ 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 case.

         ¶ 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 follows:

"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 anything.
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 limine.

         ¶ 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 else."

         ¶ 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 boyfriend.

         ¶ 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 Evans.

         ¶ 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 ...


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