People v. Chromik

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People v. Chromik

State: Illinois

Court: 3rd District Appellate

Docket No: 3-09-0686 NRel

Case Date: 03/29/2011

Preview:No. 3--09--0686 Opinion filed March 29, 2011 IN THE APPELLATE COURT OF ILLINOIS THIRD DISTRICT A.D., 2011 THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEPHEN CHROMIK, Defendant-Appellant. ) ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois No. 08--CF--1090

Honorable James E. Shadid, Judge, Presiding.

JUSTICE SCHMIDT delivered the judgment of the court, with opinion. Justices Lytton and McDade concurred in the judgment and opinion.

OPINION The State charged defendant, Stephen Chromik, with one count of criminal sexual assault (720 ILCS 5/12-13(a)(4) (West 2008)) and one count of aggravated criminal sexual abuse (720 ILCS 5/1216(d)(West 2008)) for conduct that occurred with a minor, K.B. The case proceeded to jury trial in the circuit court of Peoria County. The jury acquitted defendant of the criminal sexual

assault charge but convicted him of aggravated criminal sexual abuse. This is defendant's direct appeal from that conviction in

which he claims the evidence adduced at trial was insufficient to convict him beyond a reasonable doubt, the trial court impermissibly infringed on his right to confront witnesses and remain silent, the trial court erroneously admitted both prior bad acts evidence and a document containing text messages, and his sentence is improper. FACTS The bill of indictment charged that defendant committed criminal sexual assault in that on or about May 9, 2008, to June 1, 2008, he knowingly performed an act of sexual penetration with the victim, a person over 13 years of age but under 17 years of age, while standing in a position of trust, authority or supervision to the victim. It further charged that during that

same time frame, defendant committed aggravated criminal sexual abuse by knowingly committing an act of sexual conduct with the victim for the sexual arousal or gratification of the defendant or victim, who was at least 13 years of age but under 17 years of age when the act was committed and the defendant was at least five years older than her. At trial, the victim, K.B., testified that her date of birth is September 25, 1991, and she attended Metamora Township High School during the 2007-08 school year. 2 She played on the varsity

soccer team in the spring of 2008, a time when she was 16 years of age. Defendant was her instructor in home economics for each

semester of the 2007-08 school year and was also the assistant varsity soccer coach. She considered defendant to be unfriendly His unfriendly conduct continued

to her in the fall of 2007.

through the spring semester of 2008. K.B. noted that on May 1, 2008, prior to a soccer game, she went to a shed where her team kept soccer equipment to gather it for their game. She walked to the shed with defendant, began

gathering equipment for the game, and discussed the team meal with defendant. While in the shed, defendant asked K.B. "what She inquired as to what defendant was After she

[she] was good at."

talking about when defendant told her to "come here."

walked over to him, defendant grabbed her by the belt, pulled her toward him, and put his hands up her shirt. His hands were under

her shirt near her ribs before she "pushed his hands down." K.B. continued by noting that after she pushed defendant's hands down, he put them back on her belt loop "before he started putting them down my pants." His hands made it "several inches The victim noted that

[down] before" she "pulled his hands out."

immediately after this incident she "was really scared, intimidated." Nevertheless, she asked defendant to help her She did not report the incident Later that evening, she A.H. did not testify at

carry equipment from the shed. that day.

She went to the soccer game.

told her friend A.H. about the incident. 3

trial. K.B. also testified that one week later, on May 9, 2008, her soccer team played their biggest rival and lost the match. Despite having plans to go to the house of a friend, she went home instead and received a call from defendant. her to meet him that evening at a gas station. Defendant asked She did, but Per his

while at the station neither exited their vehicles.

instructions, she followed defendant to his apartment in Peoria. The victim noted that when they arrived at defendant's apartment, they watched the highlights of the soccer game on television. After that, defendant took out a deck of cards, two

fifths of alcohol, and two shot glasses so they could play a drinking game. Over the next 30 minutes, she consumed five shots Defendant then began kissing her.

of vodka with the defendant.

He took off her pants and underpants and touched her vagina, legs, stomach and "all over the rest of [her] body." The next

thing K.B. remembers is waking up between 6 and 7 a.m. the next morning to the sound of defendant's alarm clock. When she awoke,

she was naked and defendant was asleep next to her also naked. At trial, K.B. did not recall whether she had intercourse with defendant that night. She understood the meaning of However, she

intercourse and had "had sex" before that night.

did not remember having a feeling or indication that she had engaged in sex with defendant that night. semen or dried fluids on the bed. 4 She saw no blood,

When she awoke, she did not

shower, but put on her clothes from the night before and went to her car to retrieve running clothes as she was scheduled to run in the Race for the Cure that morning. K.B. indicated she changed into her running clothes in defendant's apartment. three-mile race anyway. She felt sick to her stomach, but ran the She and defendant drove to the race in

their own vehicles and, when she approached the spot where contestants were to park and gather, she veered off to take a slightly different route than defendant so the two would not arrive at the same time. She ran the 5-kilometer race in

approximately 24 minutes, besting 12 of the 15 other girls from her soccer team that also ran in the race. The victim continued her testimony by noting that defendant's behavior toward her at school did not change after the night in his apartment. He was still mean to her and she He asked her several K.B. told her

still feared and was intimidated by him.

times to get together, which she did not like.

friends A.H. and L.H. about the situation with defendant. K.B. testified that she spent a second night at defendant's apartment approximately a week or two after the first night. could not recall the specific date, but knew it was an evening she was working in a restaurant and had been released early. Defendant asked her to come to his apartment that evening to create going-away presents for departing senior soccer players. K.B. stated she went to defendant's apartment under compulsion of 5 She

her fear of him.

She believed, in advance, that there would be Upon her arrival, defendant had a

alcohol and sexual advances.

large drink with strong alcoholic content mixed for her. Intimidation led her to drink the cup as she was told. The victim noted that after she helped defendant create "senior pages," he began kissing and touching her. removed her clothing and the two had intercourse. Defendant While she had

partial memory loss from the alcoholic consumption, she specifically remembered having intercourse with defendant the second time she was at his apartment. K.B. continued her testimony, indicating that following the second evening, defendant treated her the same way he always had. He was mean to her and she still felt threatened and intimidated by him. Then, in early June of 2008 while at a graduation party,

she discussed the events that took place in the equipment shed with a graduating senior. The graduating senior then reported

the situation to the school administration, which triggered an investigation. The victim testified that she is familiar with defendant's telephone number as he sent it to her via Facebook. changed a number of text messages with defendant. She exShe presented

a number, but not all, of these messages to the administration at Metamora Township High School. In the principal's office, with

the principal and superintendent present, K.B. read text messages she received from defendant. As she read the messages, the 6

principal typed their content into a computer.

It appeared to

her that the principal accurately typed what she read to him. She read each message to him, including the date and time each message was sent. Once finished, the principal printed out the She did not save and

document, she read it, and signed it.

dictate every message received from defendant and she deleted all the messages she sent him. K.B. identified photographic exhibits as pictures taken of defendant's apartment. She remembered defendant's bed was K.B. de-

smaller than a queen and that it had green sheets.

scribed the layout of defendant's apartment and noted he owned a couch with one arm missing. She noted defendant had an alarm

clock in his bedroom and she could see at night by the light of the bright alarm clock. floor. Finally, K.B. admitted her trial testimony differed from her statement given when interviewed by police in July of 2008 and from her testimony given to the grand jury. Before the grand Clothing was piled up in bunches on the

jury, K.B. testified that she had sexual intercourse with defendant on two separate occasions; at trial she could not recall whether she had intercourse the first night she stayed at defendant's apartment. Gregory Christy testified that he has been the principal of Metamora Township High School for the past 21 years. taught and coached there in the 2007-08 school year. 7 Defendant One day, a

guidance counselor came to Christy regarding allegations raised by some of the victim's friends. A June 3, 2008, meeting took This meeting, the

place in which K.B. discussed the allegations.

first to Christy's knowledge, involving the victim and school officials, was attended by the two senior students, the guidance counselor, K.B. and Christy. Christy and the superintendent then

met with K.B. and her mother and father two days later. Christy acknowledged that he is a mandated reporter under the Abused and Neglected Child Reporting Act (325 ILCS 5/1 et seq. (West 2008)) and that, as such, he has a duty to immediately notify the police or the Department of Children and Family Services (DCFS) if "something has occurred." this incident. He did not report

The superintendent ultimately reported the

incident, but Christy did not know on what date the reporting occurred. Christy also met with defendant and the superintendent at defendant's request on June 3, 2008. Christy asked defendant if

any calls or communication had taken place between defendant and the victim. Defendant told Christy that there had been

communication between the two but only regarding soccer scheduling. The principal concluded his testimony by discussing the document he created that cataloged the text messages from defendant. His testimony mirrored the victim's in that he

recalled she read the messages to him while viewing her phone, 8

and he transcribed what she read.

He acknowledged that his

spell-checking function on the word processing program being used had changed some of the spellings of what he typed. He could not

identify which messages on the document were affected by that spell-check and which were not. Neither he nor the

superintendent compared the document to the messages on K.B.'s phone. K.B. did compare the document to the messages and he

relied on her truthfulness for that purpose. Kenneth Maurer testified that he is the superintendent of the Metamora Township School District. the victim concerning this matter. He met with defendant and

Defendant told Maurer that he

spent approximately 10 to 15 minutes in the shed with K.B. which violated one of his own rules in that he was alone with a student for too long. He informed Maurer that nothing inappropriate Maurer

occurred and the two merely bantered back and forth.

identified photocopies of text messages sent from the victim to defendant after the victim had been instructed not to have any contact with defendant. Maurer noted in his testimony that he did not report any activity to either the police or DCFS for more than 30 days after first hearing of the incident in the shed, even though he is a mandated reporter pursuant to statute. He stated his reporting

duties are triggered if "we have evidence of sexual relationship between an adult or a staff member with a child." When asked if

"an allegation that a teacher has attempted to place his hands up 9

her shirt and his hands in her pants" would "trigger an immediate report to DCFS," Maurer replied, "It would if she was consistent in that allegation. She wasn't."

Detective David Nelson testified that he is a juvenile investigator employed by the Peoria police department. DCFS

notified him that it was initiating an investigation into contact between K.B. and defendant. During his interview with defendant,

defendant admitted to contacting K.B. by phone and texting. Defendant informed Nelson that he did not touch K.B. in the shed at Metamora Township High School. Detective Nelson indicated he obtained defendant's cell phone records from Sprint. The records indicate that from May 3,

2008, to July 8, 2008, exactly 386 calls and text messages were sent between the parties. Defendant initiated contact, via phone

call or text message, with K.B. 180 times and K.B. initiated contact with defendant 186 times. On May 9, 2008, the day of the

soccer match with Notre Dame, there were eight contacts between the two. On May 10, 2008, there were 18 contacts. The highest

volume of daily calls occurred on June 3, 2008, the date the victim first met with the principal and superintendent. Ninety-

six contacts took place that day with the defendant initiating 60 of those contacts and K.B. the other 36. Nelson noted that he

compared the document created by principal Christy to defendant's cell phone records and the dates and times of the text messages Christy cataloged matched Sprint's records for outgoing text 10

messages from defendant's phone. Detective Nelson testified that the Peoria police department employs personnel that could have conducted a forensic analysis of K.B.'s or defendant's cellular telephone in an attempt to retrieve deleted messages. That was not done in this

investigation even though he knew messages had been deleted. Defendant testified on his own behalf. He denied that he

ever had inappropriate contact with K.B. in the equipment shed. He indicated the shed is not in a secluded area of the school but instead near the track where people could see into it throughout the day. He never had sex with K.B. and she has never been in

his apartment. Defendant reviewed the text messages that K.B. read to the principal and disagreed with the testimony of K.B. as to what they meant. He admitted that he sent text messages that read: "Some fake crying would help, just say you made it up and you don't want to talk about it anymore. You have to say nothing happened because they think something did." "Mr. C is tricky and gay." "Don't let him and your dad pressure you again." "I know you don't want to lie, but Mr. C is almost making you because he's dumb." "I got a call from the school this morning 11

but didn't answer it or call back." Defendant claimed his only intent in sending messages to K.B. was to encourage truthfulness. He noted the unsaved text messages

between the two discussed K.B.'s fear of being disciplined after becoming drunk at a party with a senior soccer player. Defendant noted that his apartment experienced flooding throughout the month of May of 2008, leaving the carpets wet and an overpowering smell within the apartment. He discussed this

problem with his apartment manager, Tonya Brewer, and maintenance worker Allen Adcock. He would frequently leave the drapes and

windows open in his garden-level apartment and noted that everything K.B. described about his apartment could be seen from the outside by looking through the windows. He never owned a

brightly lit alarm clock and uses the alarm on his cellular telephone to wake up. green sheets. He owned navy blue sheets and never owned

He never had clothing bunched up anywhere on the

floor in May of 2008 as he had a metal clothing stand in his bedroom for it. He neither owned shot glasses nor had any hard

liquor in his apartment. Defendant continued by indicating that in May of 2008, he executed a contract for the purchase of a home and was in a longterm, serious relationship with a girlfriend. He had purchased a

new car and was committed to staying employed in the area. On cross-examination, defendant admitted that at the time of the incidents, he had none of the other girl soccer players' 12

telephone numbers and K.B. was the only one he ever called. Tonya Brewer testified that she is the resident manager of the apartments where defendant lived in May of 2008. A Web site

contained a layout of a typical apartment floor plan for the complex. Defendant's apartment is located on the lower level and

had continual maintenance problems, including backup and overflow of the garbage disposal. An underground leak adjacent to the The

building caused continual soaking of defendant's apartment. flooding became so bad that she requested permission to move

defendant to another apartment, but was denied by her supervisor. Throughout the month of May of 2008, a foul odor emanated from defendant's apartment. Allen Adcock testified that he was a maintenance employee at the time defendant lived in the apartment building. He performed

maintenance work on defendant's apartment several times and was in it two or three times per week during the month of May of 2008. One could not walk from the bedroom to the bathroom

without getting wet as the carpet was continually soaked. Stephanie Ramsey testified that she dated defendant for 2

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