People v. Finch

2023 IL App (2d) 230381-U

• Court: Appellate Court of Illinois
• Decided: December 22, 2023
• Docket: 2-23-0381
• Status: Unpublished

Opinion

2023 IL App (2d) 230381-U No. 2-23-0381 Order filed December 22, 2023

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Lake County. ) Plaintiff-Appellee, ) ) v. ) No. 23-CF-1981 ) JOHN G. FINCH, ) Honorable ) Theodore S. Potkonjak, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE MULLEN delivered the judgment of the court. Presiding Justice McLaren and Justice Birkett concurred in the judgment.

ORDER

¶1 Held: The trial court abused its discretion in entering an order detaining defendant and denying defendant pre-trial release.

¶2 Defendant, John G. Finch, timely appeals the circuit court’s order of pretrial detention

pursuant to Public Acts 101-652, § 10-255; 102-1104, (eff. Jan. 1, 2023), commonly known as the

Pretrial Fairness Act. 1 For the reasons below, we reverse the trial court’s judgment and remand

1 This Act has been referred to as the “SAFE-T Act” or the “Pretrial Fairness Act.” Neither

of those names is official, as neither appears in the Illinois Compiled Statutes or the public act. 2023 IL App (2d) 230381-U

with directions to release defendant with conditions after a hearing to determine appropriate

conditions for release.

¶3 I. BACKGROUND

¶4 On October 5, 2023, defendant was charged with aggravated criminal sexual abuse (720

ILCS 5/11-1.60(c)(1)(I) (West 2022)). The State filed a complaint alleging that on February 4,

2023, defendant, “who was 17 years of age or over, knowingly committed an act of sexual

conduct” with the complaining witness, “M.L., who was under 13 years of age when the act was

committed in that defendant touched the breast of *** M.L. with his hand, for the purpose of sexual

gratification or arousal of defendant.” On October 6, 2023, the circuit court held a hearing on the

State’s petition to deny pretrial release pursuant to 725 ILCS 5/110-6.1 (West 2022).

¶5 Defendant argues that the State failed to prove by clear and convincing evidence that he

committed the offense charged, that he is a threat to any person, persons, or the community, and

that no condition or combination of conditions would mitigate this threat. In response, the State

argues that the record establishes by clear and convincing evidence that the denial of defendant’s

pretrial release was a proper exercise of the court’s discretion.

¶6 The scant record does not contain any synopsis or reports from the police. The transcript

from the detention hearing does reflect that defendant and M.L. are neighbors who live near each

other. M.L. is a minor who was 12 years old on the date of offense. She is wheelchair-bound and

described as disabled. On February 4, defendant and his wife had a party at their home and invited

neighbors including M.L. and her family as well as other children and families. The State proffered

Rowe v. Raoul, 2023 IL 129248, ¶ 4 n.1.

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that both M.L. and another minor of “around the same age” stated that they were “alone in the

room eating ice cream when the defendant appeared with a beer in his hand;” and

“[b]oth victim and witness have stated that both—that the defendant stated that both of

them are cute and sexy and are going to get all the boys in school. The witness remembers

the defendant pulling down the victim’s bra strap to near the victim’s elbow. The defendant

tells them to call him Uncle John.”

The State proffered that M.L. told the police that “defendant rubbed her shoulders, slid his hand

under her training bra and rubbed her breast above the nipple.” The State also entered into evidence

three screenshots from electronic messages that “defense counsel tendered to the police,” and said

“it is alleged to be the defendant and the victim communicating through text messages on Snapchat.

He references to giving her gifts and complimenting her.” The victim reported the offense to her

mother on March 10.

¶7 As it relates to the offense charged, the defense attorney proffered, “[t]hey weren’t the only

people in the room. There was [sic] other people in the room.” He also told the court that

“[w]e are the ones who gave the pictures and the Snapchats and whatever over to the

prosecutor. And, by the way, as you can see from my letter of May 25, *** these texts back

and forth aren’t even to him. They are to his wife. The cop apparently in the police report

got that wrong.”

¶8 In arguing for detention, the State pointed to the “text messages” as well as the age and

vulnerability of the wheelchair-bound victim, and contended defendant was a threat in that “sex

offenders have a very high recidivism rate” and that no condition or conditions of release would

“insure compliance with court orders.” The defense relied on defendant’s age of 71, his lack of

any criminal history, his employment at the same job for 40 years, and the bond report which found

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no risk factors except those required by the protocol for the offense charged and recommended

release with conditions. He asserted that they were advised in May of the complaint made by the

victim of the February offense and had cooperated fully with the police, including turning himself

in 40 minutes after being advised of the warrant. And, as it relates to the victim, the attorney said

that defendant had stayed “away from them,” concluding “if there is going to be some obstruction,

that would have happened in the last six months, nine months or something.”

¶9 In granting the State’s petition, and after finding the proof evident or the presumption great

that defendant committed the offense, the circuit court noted that it was particularly concerned

with “the fact that they’re neighbors.” Because of M.L.’s age, her disability, and her proximity to

defendant, the court found that no condition or combination could mitigate the real and present

threat defendant posed.

¶ 10 Defendant timely appealed. In this court, defendant contends that the State failed to prove

by clear and convincing evidence that the proof is evident or the presumption great that defendant

committed the offense charged. He argues that the allegations lack merit because a number of

months passed from the time of the alleged offense to the time that the complaint was filed, and

that there is no other allegation of misconduct before or after the date charged. Additionally, he

argues that nothing established that he was a threat to the victim or the community. Finally he

asserts that there was no discussion during the hearing of potential conditions on release nor any

evidence to support the court’s conclusion that no condition or combination of conditions could

mitigate any threat.

¶ 11 The State responds that the trial court properly found that the proof met the standard

required by the Act, highlighting the evidence proffered at the hearing. Defending the trial court’s

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detention ruling, the State points to the disparate ages of defendant and the victim, the victim’s

disability, the “inappropriate texts,” and the proximity of the homes of defendant and victim.

¶ 12 II. ANALYSIS

¶ 13 In Illinois, all persons charged with an offense are presumed eligible for pretrial release.

725 ILCS 5/110-2(a), 110-6.1(e) (West 2022). Pretrial release is governed by article 110 of the

Code as amended by the Act. 725 ILCS 5/110-1 et seq. (West 2022). Under the Code, as amended,

a defendant’s pretrial release may only be denied in certain statutorily limited situations (qualifying

offenses). 725 ILCS 5/110-2(a), 110-6.1 (West 2022). The State has the burden to prove by clear

and convincing evidence that the proof is evident or the presumption great that the defendant has

committed a qualifying offense (725 ILCS 5/110-6.1(e)(1) (West 2022)), that the defendant’s

pretrial release poses a real and present threat to the safety of any person or persons or the

community based on the specific articulable facts of the case (725 ILCS 5/110-6.1(a)(1)-(7), (e)(2)

(West 2022)) or a high likelihood of willful flight to avoid prosecution (725 ILCS 5/110-6.1(a)(8),

(e)(3) (West 2022)), and that no condition or combination of conditions can mitigate the real and

present threat to the safety of any person or the community or the defendant’s willful flight from

prosecution (725 ILCS 5/110-6.1(e)(3) (West 2022)).

¶ 14 In considering whether the defendant poses a real and present threat to the safety of any

person or the community, i.e., making a determination of “dangerousness,” the trial court may

consider evidence or testimony concerning factors that include, but are not limited to, (1) the nature

and circumstances of any offense charged, including whether the offense was a crime of violence,

involved a weapon, or was a sex offense; (2) the history and characteristics of the defendant,

including the defendant’s prior criminal history indicative of violent, abusive, or assaultive

behavior and the defendant’s psychological history; (3) the identity of any person to whom the

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defendant is believed to pose a threat and the nature of the threat; (4) any statements made by or

attributed to the defendant, together with the circumstances surrounding the statements; (5) the age

and physical condition of the defendant; (6) the age and physical condition of the victim or

complaining witness; (7) whether the defendant is known to possess or have access to any

weapons; (8) whether at the time of the current offense or any other offense, the defendant was on

probation, parole, or other form of supervised release from custody; and (9) any other factors,

including those listed in section 110-5 of the Code (725 ILCS 5/110-5 (West 2022)). 725 ILCS

5/110-6.1(g)(1)-(9) (West 2022). The State bears the burden of proof by clear and convincing

evidence. 725 ILCS 5/110-2(c), 110-6.1(e)(2)(West 2022).

¶ 15 If the trial court finds that the State proved a real and present threat to the safety of any

person or the community based on the specific articulable facts of the case, the defendant is likely

to flee to avoid prosecution, or the defendant failed to abide by previously issued conditions of

pretrial release, the trial court must determine which pretrial release conditions, “if any, will

reasonably ensure the appearance of a defendant as required or the safety of any other person or

the community and the likelihood of compliance by the defendant with all the conditions of pretrial

release.” 725 ILCS 5/110-5(a) (West 2022). In reaching its determination, the trial court must

consider (1) the nature and circumstances of the offense charged, (2) the weight of the evidence

against the defendant, (3) the history and characteristics of the defendant,2 (4) the nature and

2 The history and characteristics of the defendant include: “[T]he defendant’s character,

physical and mental condition, family ties, employment, financial resources, length of residence

in the community, community ties, past relating to drug or alcohol abuse, conduct, *** criminal

history, and record concerning appearance at court proceedings” as well as “whether, at the time

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seriousness of the real and present threat to the safety of any person or the community that would

be posed by the defendant’s release, and (5) the nature and seriousness of the risk of obstructing

or attempting to obstruct the criminal justice process. Id. The statute lists no singular factor as

dispositive. See id. A written detention order must contain the court’s reasons for denying release,

“including why less restrictive conditions would not avoid a real and present threat … based on

the specific articulable facts of the case….” 725 ILCS 5/110-6.1(h)(1) (West 2022).

¶ 16 Our standard of review is twofold. We review under the manifest-weight-of-the-evidence

standard the trial court’s factual findings regarding whether the State presented clear and

convincing evidence that the proof is evident or the presumption great that the defendant

committed the alleged offense, or that he is a real and present threat to any person or the

community, or a flight risk, or that no conditions of release would mitigate the threat to any person

or the community. See In re C.N., 196 Ill. 2d 181, 208 (2001) (applying a similar standard of

review for the requirement of clear and convincing evidence by the State in termination-of-

parental-rights proceeding). A finding is against the manifest weight of the evidence only where

the opposite conclusion is clearly apparent or if the finding is unreasonable, arbitrary, or not based

on the evidence presented. In re Jose A., 2018 IL App (2d) 180170, ¶ 17. We review the trial

court’s ultimate determination regarding pretrial release for an abuse of discretion. See People v.

Simmons, 2019 IL App (1st) 191253, ¶ 9 (applying abuse-of-discretion standard in reviewing

ruling denying the defendant’s motion for bail pending trial under Illinois Supreme Court Rule

of the current offense or arrest, the defendant was on probation, parole, or on other release pending

trial, sentencing, appeal, or completion of sentence for any offense under federal law, or the law

of this or any other state.” 725 ILCS 5/110-5(a)(3)(A)-(B) (West 2022).

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604(c)(1) (eff. July 1, 2017)). An abuse of discretion occurs only when the trial court’s decision is

arbitrary, fanciful, or unreasonable or where no reasonable person would take the view adopted by

the trial court. People v. Williams, 2022 IL App (2d) 200455, ¶ 52. In conducting our review, we

consider not just whether the ultimate result is within the bounds of reason, but also whether the

trial court applied proper criteria to reach that result. People v. Atterberry, 2023 IL App (4th)

231028, ¶ 12.

¶ 17 Turning to the arguments on appeal, we note that defendant is charged with aggravated

criminal sexual abuse (720 ILCS 5/11-1.60(c)(1)(I) (West 2022)). Therefore, we find that

defendant is charged with an offense under Article 11 of the Criminal Code which is detainable

under the Act. 725 ILCS 5/110-6.1(a)(5)(West 2022).

¶ 18 Regarding defendant’s first argument, that the State failed to establish that the proof is

evident or the presumption great that defendant committed the offense charged, we find that the

trial court’s ruling was not against the manifest weight of the evidence. The State made its proffer

based on interviews with M.L. who described facts which, if true, would support the charge.

Another witness – the other minor around the same age as the victim – corroborated some aspects

of the encounter. The victim reported the crime to her mother about five weeks later. We do not

find the delay undermines the trial court’s ruling. “Illinois courts have consistently recognized that

a child’s delay in reporting sexual abuse is common.” People v. Jahn, 246 Ill. App. 3d 689, 704

(1993). Based on what was presented at the hearing, we cannot say that the conclusion opposite to

the court’s finding is clearly apparent.

¶ 19 The next issue before this court is whether the trial court’s finding that defendant posed a

real and present threat to the safety of any person or persons or the community is against the

manifest weight of the evidence. The court appropriately noted the statutory factors that the offense

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was sexual in nature, the age and physical condition of the victim, and also the proximity of their

homes. But without minimizing the allegations, the evidence presented was that defendant fondled

the victim on one occasion. No other instances of sexual contact before or after the alleged offense

were presented. Nor did the court find that there was an ongoing relationship with the victim via

electronic (or any other means), apparently accepting the defense’s explanation that the texts they

provided to the police were between defendant’s wife and the victim, not him and the victim. The

court did comment “I think he was drinking at the time, it appears,” but there is nothing in the

record suggesting intoxication or addiction. Neither is there any evidence of criminal history,

violence, weapons, psychiatric issues, or anything indicating an inability to follow court orders.

Also overlooked was the fact that the defendant had avoided contact with the victim and her family

in the months that passed between when the police told him there was a complaint under

investigation and the date of his surrender on the warrant. The burden was on the State to present

the evidence in clear and convincing fashion that the defendant was a threat and in this case, they

failed to do so. If the Act’s presumption that all persons charged with an offense are eligible for

pretrial release is to have any meaning, more than is presented in this record must be required.

¶ 20 Accordingly, we find that the trial court’s determination that defendant posed a real and

present threat to persons or the community was against the manifest weight of the evidence. We

therefore reverse the order of detention and remand for a hearing on conditions of pretrial release

under section 110-10 of the Act. (725 ILCS 5/110-10. (West 2022).)

¶ 21 III. CONCLUSION

¶ 22 For the reasons stated above, we reverse the judgment of the circuit court of Lake County

and remand with instructions. Mandate to issue instanter.

¶ 23 Reversed and remanded.

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