People v. Chromik

• Court: Appellate Court of Illinois
• Decided: March 29, 2011
• Docket: 3-09-0686 NRel
• Status: Unpublished

Opinion

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 ) Appeal from the Circuit Court ILLINOIS, ) of the 10th Judicial Circuit, ) Peoria County, Illinois Plaintiff-Appellee, ) ) v. ) No. 08--CF--1090 ) STEPHEN CHROMIK, ) ) Honorable James E. Shadid, Defendant-Appellant. ) 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 5/12-

16(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. She played on the varsity

2 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

to her in the fall of 2007. His unfriendly conduct continued

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] was good at." She inquired as to what defendant was

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

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

[down] before" she "pulled his hands out." The victim noted that

immediately after this incident she "was really scared,

intimidated." Nevertheless, she asked defendant to help her

carry equipment from the shed. She did not report the incident

that day. She went to the soccer game. Later that evening, she

told her friend A.H. about the incident. A.H. did not testify at

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. Defendant asked

her to meet him that evening at a gas station. She did, but

while at the station neither exited their vehicles. Per his

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

of vodka with the defendant. Defendant then began kissing her.

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

intercourse and had "had sex" before that night. However, she

did not remember having a feeling or indication that she had

engaged in sex with defendant that night. She saw no blood,

semen or dried fluids on the bed. When she awoke, she did not

4 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. She felt sick to her stomach, but ran the

three-mile race anyway. 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

still feared and was intimidated by him. He asked her several

times to get together, which she did not like. K.B. told her

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. She

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 her fear of him. She believed, in advance, that there would be

alcohol and sexual advances. Upon her arrival, defendant had a

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. Defendant

removed her clothing and the two had intercourse. 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. She ex-

changed a number of text messages with defendant. She 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

document, she read it, and signed it. She did not save and

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

smaller than a queen and that it had green sheets. K.B. de-

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. Clothing was piled up in bunches on the

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 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. Defendant

taught and coached there in the 2007-08 school year. One day, a

7 guidance counselor came to Christy regarding allegations raised

by some of the victim's friends. A June 3, 2008, meeting took

place in which K.B. discussed the allegations. This meeting, the

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." He did not report

this incident. 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. He met with defendant and

the victim concerning this matter. 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

occurred and the two merely bantered back and forth. Maurer

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. He owned navy blue sheets and never owned

green sheets. 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 long-

term, 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

building caused continual soaking of defendant's apartment. The 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

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 2½

years from December of 2005 to July of 2008. At one time, they

planned to marry. She visited defendant's apartment throughout

the month of May of 2008 and described the water leak and bad

odor. In May of 2008, Ramsey and defendant celebrated a dating

anniversary on the day of the Race for the Cure, attended a

wedding, attended commencement at Bradley University,

13 participated in a marathon in Rockford, Illinois, and celebrated

Mother's Day with her parents. She had access to defendant's

apartment via her own key and would routinely let herself in when

he was not there, as well as visit him unannounced. His

apartment had blue and green accessories in his bathroom,

including a shower curtain that had been cut too short. He did

not have an alarm clock. His sheets were navy blue, and to her

knowledge, he had no shot glasses in the apartment. Defendant rested following Ramsey's testimony. Ultimately,

the jury returned a verdict of guilty as to the crime of

aggravated criminal sexual abuse and acquitted defendant of the

crime of criminal sexual assault. This is defendant's direct

appeal from his conviction for aggravated criminal sexual abuse.

ANALYSIS

Defendant raises eight issues on appeal: (1) whether the

evidence adduced at trial was sufficient to prove him guilty

beyond a reasonable doubt; (2) whether he was denied his right to

confront and cross-examine witnesses against him when the court ruled that he could not cross-examine the victim on the issue of

her prior sexual conduct; (3) whether his right to remain silent

was violated when the prosecutor remarked that the "defendant can

testify what his version of events are"; (4) whether the trial

court improperly admitted evidence of prior bad acts regarding

the incident in the shed at Metamora Township High School; (5)

whether the trial court erred in refusing to give a limiting

14 instruction regarding uncharged conduct; (6) whether the trial

court improperly admitted the document that cataloged the text

messages; (7) whether cumulative error deprived defendant of a

fair trial; and (8) whether the trial court committed error in

finding his Tennessee aggravated assault conviction mandated a

Class 2 felony sentence even though his conviction for aggravated

sexual abuse conviction is a Class 3 felony.

A. Sufficiency of the Evidence When reviewing a challenge to the sufficiency of the

evidence, we consider, after viewing the evidence in the light

most favorable to the prosecution, whether any rational trier of

fact could have found the essential elements of the crime beyond

a reasonable doubt. People v. Collins, 106 Ill. 2d 237 (1985).

It is the trier of fact's responsibility, not ours, to resolve

any conflicts in the testimony, weigh the evidence, and draw all

reasonable inferences from it. People v. Howery, 178 Ill. 2d 1

(1997).

To convict defendant of the offense of aggravated criminal sexual abuse (720 ILCS 5/12-16(d) (West 2008)) as charged, the

State needed to prove that K.B. was at least 13 years of age but

under 17 years of age, that defendant was at least 5 years older

than her, and that he committed an act of sexual conduct with

her. 720 ILCS 5/12-16(d) (West 2008). The term "sexual conduct"

means any intentional or knowing touching or fondling by the

accused, either directly or through clothing, of the sex organ,

15 anus or breast of the victim for the purpose of sexual

gratification or arousal of the victim or the accused. Illinois

Pattern Jury Instructions. Criminal, No. 11.65D (4th ed. 2000)

(hereinafter, IPI Criminal 4th No. 11.65D)

Defendant acknowledges that the State proved K.B. to be

between the ages of 13 and 17 and him to be more than 5 years her

elder. Defendant also acknowledges that K.B.'s testimony, in and

of itself, establishes he committed an act of sexual conduct. However, he claims this case involves a scenario where the

"testimony is contrary to the laws of nature, or universal human

experience, [and therefore,] this court is not bound to believe

the witness." (Internal quotations marks omitted.) People v.

Wright, 147 Ill. App. 3d 302, 318 (1986) (quoting People v.

Coulson, 13 Ill. 2d 290, 297 (1958)). Arguing that the "only

evidence that suggests sexual abuse occurred came from the

testimony of the victim," and that the "story told by the victim

is simply incredible, defies logic and is contrary to human

nature," defendant claims we should, therefore, find that no sufficient evidence existed upon which to base his conviction.

Defendant comes to this conclusion by claiming the victim's story

concerning the first night in his apartment is not credible as

she "did not report the first night of fear induced drinking

games and sex. Weeks passed before she was overcome by fear and

compulsion to once again robotically obey the command of the

defendant and drive to his apartment at night for more alcohol

16 drinking and compelled sex."

Defendant cites K.B.'s failure to detail every

characteristic of his apartment as evidence that she had never

been there. Most notably, he notes she failed to mention the

moist carpets, foul smell and the "comically short shower

curtain." As evidence contrary to K.B.'s testimony existed

concerning the color of his bed sheets and alarm clock, he

submits her entire story cannot be believed. We disagree with defendant's characterization of the evidence.

Initially, we note that defendant is clearly requesting that

this court reweigh the evidence, retry the defendant and find in

his favor. We are not permitted to engage in such a task.

People v. Givens, 237 Ill. 2d 311 (2010).

Defendant ignores significant evidence that corroborates

K.B.'s version of the events. Most notably, K.B. indicated that

the night of the first sexual encounter, "he called and told" her

to meet him at the gas station from which she followed him to his

apartment. The soccer game ended "sometime around nine" that night and the telephone call came thereafter. Records obtained

from Sprint and entered into evidence clearly show that at 9:07

p.m. on the night of May 9, 2010, defendant initiated a phone

call to K.B.'s cell phone. He initiated another phone call to

K.B. at 9:28 p.m. that night. One minute later, she called him

back. At 9:32 p.m., he called her phone number again. The next

morning, at 7:29 a.m., defendant initiated another phone call to

17 K.B. This fact corroborates her testimony that early in the

morning, he called her to tell her that he would not be turning

off into the parking lot where they were to meet for the race so

that the two would not arrive at the same time.

While defendant claimed he called K.B. before the race to

find out where the team was having breakfast, instead of calling

the head coach, it was certainly for the jury to determine

whether or not his statement or K.B.'s statement was more credible. Defendant acknowledged that there were 18 phone

contacts between himself and K.B. on the day of the Race for the

Cure, many occurring well after breakfast. Defendant also

acknowledged the phone contact he had with K.B. on the night

before the Race for the Cure, but offered no explanation

concerning the content of those conversations. Defendant

admitted calling K.B. on the morning of the race, but claims he

only did so to determine the meeting place of the group.

Certainly, a reasonable jury could conclude that K.B.'s

testimony concerning the calls to and from defendant in that 12- hour time frame was more credible. K.B. testified the calls at

night after the soccer match set up a rendezvous with defendant

and that the call in the early morning ensured she would not

arrive at the race contemporaneously with defendant. Defendant,

claiming not to know the location of the group's meeting place,

chose to call his 16-year-old player instead of the head coach.

Defendant acknowledged that he sent K.B. a text message on June

18 3, 2008, at 8:27 p.m. that read, "I told them I called you. Find

time to meet for Race For The Cure and for Survivor Day. That

was always spoke orally. You are the only number I have."

In reviewing defendant's challenge to the sufficiency of the

evidence, we must allow all reasonable inferences from the record

in favor of the prosecution. Givens, 237 Ill. 2d at 334. K.B.

testified to a course of sexual conduct she engaged in with

defendant. The jury weighed the credibility of both K.B. and defendant. Despite defendant's assertion that she is beyond

belief, there is clearly enough evidence contained within the

record on appeal upon which a reasonable trier of fact could

conclude that the State proved the elements of the offense of

aggravated criminal sexual abuse beyond a reasonable doubt.

B. Defendant's Right to Cross-examination

Defendant argues that the trial court violated his right to

cross-examine K.B. when ruling that he could not question her

regarding previous sexual activity. We find no error occurred as

defendant had no right to question K.B. concerning her past sexual activity. 725 ILCS 5/115-7(a) (West 2008).

Moreover, we note that even if we were to find that

forbidding defendant from cross-examining K.B. with respect to

her prior sexual experience was error, any error was effectively

cured when the jury returned a verdict of not guilty in favor of

defendant on the count alleging criminal sexual assault.

Defendant takes issue with the fact that K.B. answered "yes"

19 to the prosecutor's question asking if she "ever had sex before,"

and claims not allowing him to further explore that subject

violated his right to cross-exam K.B. The question went to the

victim's knowledge of sexual intercourse. The jury, however,

acquitted defendant of criminal sexual assault, the only count

that alleged defendant actually engaged in intercourse with K.B.

Any possible error was harmless. We can conjure up no

conceivable prejudice to defendant resulting from the victim's testimony that she had sex before.

C. Defendant's Right to Remain Silent

Defendant claims his right to remain silent was violated

during principal Christy's testimony. Defense counsel asked

Christy, "So can you summarize what his statements were to you

and Mr. Maurer in that first meeting?" This question drew an

objection from the State in which the prosecutor commented, "I'll

object. Hearsay. Defendant can testify what his version of

events [is]." After the prosecutor's statement, the court

dismissed the jury. Defense counsel then stated his reply to the hearsay objection and requested a mistrial, claiming the

prosecutor's statement equated to an impermissible comment on

defendant's right not to testify.

The prosecutor agreed that he should not have commented on

defendant's ability to testify but suggested to the court that

any error can be cured by "an instruction that will, can be added

to the jury instructions that the jury is not to hold the

20 defendant, or hold it against the defendant for not testifying."

Defense counsel acknowledged that the prosecutor did not act

"with any malice or ill will" but, nevertheless, believed no

instruction could cure the error and renewed his request for a

mistrial.

The trial court denied that request and gave defense counsel

the choice of having a limiting instruction issued or not having

one issued for fear it would draw more attention to the matter. Defense counsel chose the former and the trial court issued an

instruction directing the jury to disregard the statement.

Despite the limiting instruction, defendant claims the

prosecutor's statement "effectively forced" him to testify and,

as such, we should grant him a new trial. The State disagrees

and claims that defendant has waived the issue when he chose to

testify rather than assert his right to not testify.

Improper remarks by a prosecutor generally do not constitute

reversible error unless they result in substantial prejudice to

the accused. People v. Johnson, 119 Ill. 2d 119 (1987). Potential prejudice associated with improper remarks of a

prosecutor is usually cured by "the prompt sustaining of an

objection combined with proper jury instruction." People v.

Johnson, 208 Ill. 2d 53, 116 (2003).

The State submits that any error that did occur was cured by

the trial court's instruction. We agree. Defense counsel

admitted, as noted above, that the prosecutor's remark was an

21 innocent misstatement of the prosecutor's objection. An

objection that the trial court ultimately sustained.

The State also notes that should we find that the

instruction did not cure the error, then defendant has waived his

right to assert it. The State notes defendant chose to testify

and waive his right not to testify. For us to hold that by

testifying he did not forfeit his right to raise this issue, the

State submits, would allow defendant to "run his story by a jury in hope of seeing what, if anything, would stick. If the jury

accepted none of his testimony, defendant loses nothing because

nothing was at stake, since he would be entitled to an automatic

new trial. On the other hand, if the jury acquitted him on some

but not all charges [like what happened here], the defendant

gains, thereby limiting his conviction exposure on trial." We

agree and further find defendant has waived this issue by

testifying.

"The fifth amendment speaks only of compulsion. 'It does not

preclude a witness from testifying voluntarily in matters which incriminate him. If, therefore, he desires the protection of the

privilege, he must claim it or he will not be considered to have

been "compelled" within the meaning of the Amendment.' " People

v. Snow, 403 Ill. App. 3d 734, 738 (2010) (quoting United States

v. Monia, 317 U.S. 424, 427 (1943)).

D. Other Crimes/Prior Bad Acts

Defendant claims the court committed reversible error when

22 allowing evidence to be introduced concerning the incident in the

equipment shed. This, defendant claims, was impermissible prior-

bad-acts evidence. We review the question of whether other-

crimes or prior-bad-acts evidence should have been admitted under

the abuse of discretion standard. People v. Gonzalez, 379 Ill.

App. 3d 941 (2008); People v. Hansen, 313 Ill. App. 3d 491

(2000).

Evidence of other offenses is admissible if it is relevant for any purpose other than to show the defendant's disposition or

propensity to commit the crime charged, including modus operandi,

intent, identity, motive, or absence of mistake. This list is

not exclusive. People v Lear, 143 Ill. 2d 138 (1991); People v.

Bedoya, 325 Ill. App. 3d 926 (2001). Concerning sexual crimes,

evidence of prior sexual activities and bad acts can be admitted

to show a defendant's intent, design, course of conduct, as well

as to corroborate a victim's testimony concerning the charged

offense. People v. Foster, 195 Ill. App. 3d 926 (1990).

Other-crimes or prior-bad-acts evidence, though relevant, must not become a focal point of the trial. People v. Boand, 362

Ill. App. 3d 106 (2005). Courts have warned about the dangers of

putting on a trial within a trial with detail and repetition

greatly exceeding what is necessary to establish the particular

purpose for the evidence. People v. Bartall, 98 Ill. 2d 294

(1983).

"The law is well established that, in a trial for sexual

23 offenses, evidence of a defendant's prior sexual activities with

the same child is an exception to the general rule that a

defendant's prior bad acts are not admissible, and such evidence

is admissible to show the relationship and familiarity of the

parties, to show the defendant's intent, to show the defendant's

design or course of conduct, and to corroborate the victim's

testimony concerning the offense charged." Foster, 195 Ill. App.

3d at 949. Where evidence of prior bad acts is used to prove modus operandi or a common design, there must be a high degree of

identity between the facts of the two crimes. People v. Illgen,

145 Ill. 2d 353 (1991). When offered for some other purpose,

mere general areas of similarity will suffice. Illgen, 145 Ill.

2d at 373. As factual similarities increase, so does the

relevance, or probative value of the other crime evidence.

Donoho, 204 Ill. 2d 159, 184 (2003). "Unfair prejudice" speaks

to the capacity of some concededly relevant evidence to lure the

fact finder into declaring guilt on a ground different from proof

specific to the offense charged. Old Chief v. United States, 519 U.S. 172, 181 (1997).

A mini-trial can be avoided by carefully limiting the

details of the other crime to what is necessary to illuminate the

issue for which the other crime was introduced. People v.

Nunley, 271 Ill. App. 3d 427, 432 (1995). When the unfair

prejudice is excessive, a limiting instruction will not save

admissibility of the evidence. Nunley, 271 Ill. App. 3d at 433.

24 Even if the trial court fails to conduct a balancing test and

properly balance the probative value of the other-crimes evidence

against the unfair prejudice, "[r]eversal is not warranted if it

is unlikely the error influenced the jury." People v. Boyd, 366

Ill. App. 3d 84, 95 (2006) (citing People v. Hall, 194 Ill. 2d

305 (2000)). Our supreme court has repeatedly held that the

improper introduction of other-crimes evidence is harmless error

when a defendant is neither prejudiced nor denied a fair trial based upon its admission. People v. Nieves, 193 Ill. 2d 513

(2000); People v. Hall, 194 Ill. 2d 305 (2000).

Defendant argues that the shed incident impermissibly became

the focal point of the trial, especially when considering the

activity in the shed "did not constitute the commission of a

sexual offense." Defendant further claims that even if this

evidence is relevant, the trial court failed to engage in a

mandated balancing test in an effort to determine whether its

probative value outweighed its prejudicial impact. As such,

defendant claims the court allowed a trial within a trial to take place.

The State submits that a mini-trial was avoided in this

instance as the trial court carefully limited the evidence

adduced at trial, only allowing sufficient details of the shed

incident necessary to illuminate defendant's course of conduct as

well as the investigatory steps taken in this matter. Defendant

disagrees and claims that the majority of the State's case

25 centered on the uncharged conduct: that being, the incident in

the shed. Defendant characterizes 31 pages of the 55-page

transcript of K.B.'s direct testimony as being related to

uncharged conduct, including 30 pages devoted to the shed

incident in and of itself. Defendant further notes that the

overwhelming majority of testimony by principal Christy and

superintendent Maurer concerned uncharged conduct. Defendant

summarizes the State's direct evidence as "85 pages of transcript showing questions and answers" and claims that "the People

devoted about 48 pages to testimony regarding the uncharged

conduct." Given that 56% of the State's case dealt with the

events of the equipment shed, defendant argues it is clear the

focal point of this trial was the uncharged conduct. Defendant

submits that even if the incident in the shed was relevant, he

was unfairly prejudiced by the admission of testimony concerning

it and is, therefore, entitled to a new trial.

The State does not respond to defendant's direct attack on

the quantum of evidence adduced at trial tied to the shed incident other than to say "the details surrounding the soccer

shed incident itself were carefully limited." The State claims

that the evidence concerning the school's follow-up investigation

into the shed incident was independently relevant as it addressed

defendant's guilty knowledge as exhibited by his monumental

effort to persuade the victim to lie about something that, he

claims, "did not happen." It further claims the evidence

26 revealed the course taken by the investigation, which started as

an internal school matter and, therefore, was necessary to a full

understanding of the State's case. Finally, the State notes

there is no authority indicating that a trial judge must make a

record specifically indicating that the probative value of prior

bad acts evidence outweighs its prejudicial effect. Noting that

all judges are presumed to know and properly apply the law

(People v. Henderson, 336 Ill. App. 3d 915 (2003)), the State submits that it must be presumed that the trial court properly

balanced the admissibility of the evidence.

We find the admission of the soccer shed incident evidence

was not error. Within a week of the incident, defendant again

initiated contact with the victim following the Notre Dame soccer

match. This time, defendant was able to convince the victim to

go to his apartment. Evidence of the soccer shed incident was

relevant to evince defendant's course of conduct, tended to

corroborate the victim's testimony concerning their sexual

relationship that ensued shortly thereafter and established the general intimacy between defendant and the victim.

The shed incident evidence also explained the investigation

in this case and how the crime was discovered. This matter began

as a school investigation of alleged misconduct by an assistant

coach. Prior bad acts or other crimes evidence is properly

admitted in order to explain the course of a police investigation

and the events leading up to a defendant's arrest. People v.

27 Gonzalez, 379 Ill. App. 3d 941, 950 (2008) (citing People v.

Hayes, 139 Ill. 2d 89 (1990)); People v. Tisdel, 201 Ill. 2d 210

(2002); People v Johnson, 114 Ill. 2d 170 (1986). Clearly, the

evidence concerning the incident in the shed was relevant. The

only question remaining regarding the evidence is whether the

quantum of it unduly prejudiced defendant. We hold it did not.

In People v. Johnson, No. 1--07--0715 (Ill. App. Dec. 20,

2010), the court stated as follows: "The key to balancing the probative value of

other crimes evidence to prove propensity

against its possible prejudicial effect is to

avoid admitting evidence that entices a jury

to find defendant guilty only because it

feels he is a bad person deserving

punishment. [Citation.]

In weighing the probative value of the

evidence against the undue prejudice to the

defendant, a court may consider: (1) the proximity in time to the charged

or predicate offense;

(2) the degree of factual similarity to

the charged or predicate offense; or

(3) the other relevant facts and

circumstances. [Citation.]." (Internal

quotation marks omitted.) (Emphasis in

28 original.) Johnson, slip op. at 9-10.

The balancing test discussed in Johnson weighs in favor of

admitting the evidence. The incident in the shed occurred close

in time to the first sexual encounter between the victim and

defendant. Both instances were similar in that they were

initiated by defendant and involved inappropriate touching or

attempts at inappropriate touching of the victim. As noted

above, the shed incident was also relevant to show the path of investigation in this matter. Phone records from the night of

the Notre Dame game corroborate the victim's version of her first

rendezvous at defendant's apartment. As there was no evidence of

conduct amounting to criminal sexual abuse taking place in the

shed, the tendered jury instructions prohibited the jury from

finding defendant guilty based on any activity that occurred in

the shed.

We cannot say that the introduction of this evidence enticed

the jury to find defendant guilty only because it felt he was a

bad person. We hold the trial court did not abuse its discretion in admitting evidence of the acts in the shed.

E. Limiting Instruction

Defendant tendered a limiting instruction modeled on IPI

Criminal 4th No. 3.14 that stated as follows:

"Evidence has been received that the

defendant has been involved in an offense

other than those charged in the indictment.

29 This evidence has been received on the

issue of the defendant's intent and may be

considered by you only for that limited

purpose.

It is for you to determine whether the

defendant was involved in that offense and,

if so, what weight should be given to this

evidence on the issue of intent." IPI Criminal 4th No. 3.14.

The trial court refused to give this instruction noting that

the "shed incident is part of a course of conduct that's relevant

here under all the circumstances of the offenses alleged in the

bill of indictment even though clearly the bill of indictment

alleges offenses that have to deal with the testimony of the

sexual activity, but I don't think 3.14 is applicable, and it

would be refused." Defendant argues that since "no limiting

instruction was given, the jury was free to convict the Defendant

of a criminal offense for conduct outside the scope of the charges filed against him." Specifically, defendant claims the

jury "was improperly allowed to convict the Defendant if it

believed criminal sexual abuse occurred in the equipment shed, an

allegation of conduct in Woodford County, Illinois." We

disagree.

The court clearly instructed the jury as follows:

"A person commits the offense of

30 Aggravated Criminal Sexual Abuse when he

commits an act of sexual conduct with a

victim who is at least 13 years of age but

under 17 years of age when the act is

committed and he is at least 5 years older

than the victim."

See IPI Criminal 4th No. 11.61.

"To sustain the charge of Aggravated Criminal Sexual Abuse, the State must prove

the following proposition:

First Proposition: That the defendant

committed an act of sexual conduct with K.B.;

and

Second Proposition: That K.B. was at

least 13 years of age but under 17 years of

age when the act was committed; and

Third Proposition: That the defendant

was at least 5 years older than K.B." See IPI Criminal 4th No. 11.62A.

"The term 'sexual conduct' means any

intentional or knowing touching or fondling

by the accused, either directly or through

the clothing, of the sex organ of the victim,

for the purpose of sexual gratification or

arousal of the victim or the accused."

31 See IPI Criminal 4th No. 11.65D.

K.B. testified that, while in the shed, defendant: grabbed

her belt loop; "started to put his hands up [her] shirt *** near

[her] ribs before [she] pushed his hands down"; after that, he

"put his hands back on [her] belt loop before he started putting

them down [her] pants." When asked how far down her pants

defendant put his hands, K.B. replied, "several inches before I

pulled his hands out." K.B. stated defendant did not "fondle her breasts" as his hands did not get that far up her shirt.

It is "the almost invariable assumption of the law that

jurors follow their instructions." Richardson v. Marsh, 481

U.S. 200, 206 (1987); People v. Sandoval, 135 Ill. 2d 159 (1990).

A "jury is presumed to follow the instructions that the court

gives it." People v. Taylor, 166 Ill. 2d 414, 438 (1995). The

court instructed the jury that it could only find defendant

guilty if it found sexual conduct occurred between defendant and

K.B. It defined sexual conduct as touching or fondling by the

accused of a sex organ of his or K.B.'s for sexual gratification. There is no evidence in the record that any such activity

occurred in the shed and the State never suggested defendant

committed sexual conduct in the shed sufficient to rise to the

level of a crime. To conclude that the jury found defendant

guilty of criminal sexual abuse based on the evidence of conduct

in the shed would be to presume and conclude that the jury

ignored its instructions. We find the trial court did not err in

32 failing to give defendant's instruction.

F. Admission of the Text Messaging Transcripts

Defendant argues the trial court committed reversible error

when allowing the document containing the transcription of the

text messages into evidence. Defendant claims no proper

foundation for the document existed to allow the document into

evidence, that it was not properly authenticated and that its

admission violated the best evidence rule. A trial court's decision to admit documentary evidence will

not be reversed absent an abuse of discretion. People v. Downin,

357 Ill. App. 3d 193 (2005). An adequate foundation is laid when

a document is identified and authenticated. Anderson v. Human

Rights Comm'n, 314 Ill. App. 3d 35 (2000). To "authenticate a

document, evidence must be presented to demonstrate that the

document is what its proponent claims." Gardner v. Navistar

International Transportation Corp., 213 Ill. App. 3d 242, 247-48

(1991). A finding of authentication is merely a finding that

there is sufficient evidence to justify presentation of the offered evidence to the trier of fact and does not preclude the

opponent from contesting the genuineness of the writing after the

basic authentication requirements are satisfied. People v.

Downin, 357 Ill. App. 3d 193 (2005). A document may be

authenticated by direct or circumstantial evidence. People v.

Towns, 157 Ill. 2d 90 (1993). Authorship of a document may

include a showing that the writing contains knowledge of a matter

33 sufficiently obscure so as to be known to only a small group of

individuals. Downin, 357 Ill. App. 3d at 203. Factors that

courts use in authenticating writings and other items similarly

apply to e-mail messages. Downin, 357 Ill. App. 3d at 203.

We do not find, and the parties fail to identify, any

Illinois case law concerning the admission of text messages.

However, in State v. Thompson, 2010 ND 10, 777 N.W.2d 617, the

Supreme Court of North Dakota found information contained in text messages was properly authenticated and allowed into evidence.

The text messages at issue in Thompson involved messages sent

from a wife to her husband prior to her assaulting him. While

phone records indicated messages were sent between the two, the

wife argued "there was no way to establish who actually sent the

text messages and whether the messages were accurately

transcribed." Thompson, 2010 ND 10, ¶14, 777 N.W.2d 617, 622.

During the Thompson trial, the court instructed the jury

that the "evidence about the text messages" was only allowed to

show defendant's state of mind as both defendant and the victim testified regarding the content and frequency of the messages.

Thompson, 2010 ND 10, ¶11, 777 N.E.2d 617, 621. The State

offered a photograph into evidence of one specific text message

that included profane and threatening language. Thompson, 2010

ND 10, ¶7, 777 N.E.2d 617, 621. Under both the North Dakota

evidentiary rules and Federal Rules of Evidence 901(a), "the

proponent of offered evidence need not rule out all possibilities

34 inconsistent with authenticity or conclusively prove that

evidence is what it purports to be; rather, the proponent must

provide proof sufficient for a reasonable juror to find the

evidence is what it purports to be." Thompson, 2010 ND 10, ¶21,

777 N.W.2d 617, 624. "If the court decides evidence is what its

proponent claims it to be, the court may admit the evidence and

the question of its weight is for the trier-of-fact." Thompson,

2010 ND 10, ¶23, 777 N.W.2d 617, 624. Ultimately, the court found sufficient evidence from the victim, including the

circumstances of that day and his knowledge of defendant's cell

phone number and signature on text messages, to authenticate the

victim's testimony about the text messages received. Such

evidence was sufficient to authenticate the picture of the text

message. Thompson, 2010 ND 10, ¶26, 777 N.W.2d 617, 626.

In the case at bar, the document introduced into evidence

purported to be a transcription created by the principal that

recounted the messages as read to him by the victim. All

acknowledged that the transcription may not have evinced, with 100% accuracy, the text messages sent from defendant to K.B. as

some words were changed via the word processor's spell-check

feature. Nevertheless, the dates and times contained on the

document and attributed to text messages sent from defendant to

the victim mirrored those identified in the phone company

records. K.B. testified as to the content of the messages and

defendant acknowledged the accuracy of a number of the messages

35 as transcribed by the principal.

We find the trial court did not err by admitting the

transcription of the text messages. The trial judge ensured that

all knew the document was exactly what it purported to be: a

transcription of the victim's reading of the text messages. The

judge allowed both sides to argue over their interpretation of

the messages and allowed defendant to admit evidence indicating

the spell-check program on the word processor used to create the document likely changed the wording or spelling of some messages.

The parties then quarreled over the meaning of the substance of

individual messages. As noted above, defendant acknowledged the

accuracy of a number of the messages as recorded on the document.

Defendant argued his intent in sending those messages that asked

K.B. to change her story was simply to get her to tell the truth.

The State argued that his request that K.B. change her story was

evidence of his wrongdoing.

Nevertheless, the substance of the messages contained

relevant evidence including defendant's attempts to get K.B. to change her story. While defendant attacks the credibility of the

document's substance, bringing to light the fact that it may not

have perfectly reproduced every message he sent to K.B., this

does not change the fact that the trial court properly

authenticated the document as being nothing more than exactly

what it purported to be. Defendant did not deny sending even a

single one of the purported text messages. We find no error.

36 G. Cumulative Error

Defendant claims the cumulative effect of the alleged errors

denied him due process by infringing on his right to a fair

trial. As noted above, the only error that occurred during the

trial involved the prosecutor's remarks concerning defendant's

ability to testify. The trial court cured that error through its

limiting instruction directing the jury to disregard the

prosecutor's statement. Moreover, as noted above, defendant waived this error by choosing not to assert his right to remain

silent.

Our supreme court noted in People v. Albanese, 104 Ill. 2d

504, 524 (1984), that if "none of the points relied upon by

defendant constituted error, logic dictates that there is no

possibility for cumulative error." Similarly, we find that where

one error occurred at trial but that error was both cured and

waived, logic dictates that there is no possibility for

cumulative error. See People v. Caffey, 205 Ill. 2d 52 (2001).

H. Sentencing Aggravated criminal sexual abuse is a Class 2 felony. 720

ILCS 5/12-16(g) (West 2008). Class 2 felonies generally carry a

sentencing range of three to seven years. 730 ILCS 5/5-4.5-35(a)

(West 2008). Probation is an authorized sentence to those

convicted of "all felonies and misdemeanors other than those

identified" in subsection (c) of section 5-5-3 of the Unified

Code of Corrections. 730 ILCS 5/5-5-3(b) (West 2008).

37 Subsection (c) prohibits probation for all who have been

convicted of a qualifying offense within 10 years of committing

the offense for which they are being sentenced. 730 ILCS 5/5-5-

3(c)(2)(F) (West 2008). Qualifying offenses take many forms

under section 5-5-3(c), but we are only concerned with those

equivalent to a "Class 2 or greater felony." 730 ILCS 5/5-5-

3(c)(2)(F) (West 2008).

On the order sentencing defendant, the trial court made the following notations:

"Court finds defendant is non-probationable

730 ILCS 5/5-5-3c2F

Court finds defendant is extendable 730 ILCS

5/5-5-3.2b1"

In making these findings, the trial court relied on the fact that

defendant had been convicted in 2005 of aggravated assault in the

State of Tennessee. While acknowledging his Tennessee

conviction, defendant argues that conviction did not render him

nonprobationable or extended-term eligible. Defendant claims the trial court's mistaken belief that he was both nonprobationable

and extended-term eligible came from a misapplication of the law.

The trial court, defendant submits, only compared the sentencing

range from his Tennessee offense to Illinois's sentencing scheme

when determining he was convicted of a Class 2 or greater felony

within the last 10 years. This, defendant argues, was error

entitling him to a new sentencing hearing.

38 We agree with defendant that the trial court, before finding

defendant nonprobationable, should have compared the elements of

his Tennessee offense with Illinois law to determine if the

Tennessee "offense *** contained, at the time it was committed,

the same elements as an offense now *** classified as a Class 2

or greater felony." 730 ILCS 5/5-5-3(c)(2)(F) (West Supp. 2009).

However, we find the trial court’s failure to do so does not

entitle defendant to a new sentencing hearing.

The trial court made it clear that even if defendant were

probationable, it would not order probation given the seriousness

of the offense. The court stated that, "I don’t believe under

the circumstances that probation should be - - would have been or

should be imposed in this case."

Our supreme court has made it clear that not every

sentencing error mandates a new sentencing hearing. For example,

when a trial court considers an improper aggravating factor, our

supreme court has noted that "where it can be determined from the

record that the weight placed on the improperly considered

aggravating factor was so insignificant that it did not lead to a

greater sentence, remandment is not required." People v. Bourke,

96 Ill. 2d 327, 332 (1983). Courts have interpreted this

language from Bourke to mean that where a defendant "would have

received the same sentence" despite the sentencing error,

remandment is not required. People v. Bohlander, 225 Ill. App.

39 3d 1055, 1058 (1992).

While the trial court should have compared the elements of

the Tennessee crime, and not just its sentence, to those of a

similar crime in Illinois, the record leaves little doubt that

defendant would have received the same sentence even if he had

been found probationable. As such, we find defendant is not

entitled to a new sentencing hearing.

CONCLUSION

For the foregoing reasons, the judgment of the circuit court

of Peoria County is affirmed.

Affirmed.