People v. Gomez

2024 IL App (2d) 240082-U

• Court: Appellate Court of Illinois
• Decided: April 24, 2024
• Docket: 2-24-0082
• Status: Unpublished

Opinion

2024 IL App (2d) 240082-U No. 2-24-0082 Order filed April 24, 2024

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 Kane County. ) Plaintiff-Appellant, ) ) v. ) No. 24-CF-132 ) JOSE D. BUSTOS GOMEZ, ) Honorable ) Michael J. Noland, Defendant-Appellee. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE HUTCHINSON delivered the judgment of the court. Justices Schostok and Birkett concurred in the judgment.

ORDER

¶1 Held: The trial court abused its discretion in finding, in part, that the State’s proffered evidence was hearsay and could not be considered in determining whether the State proved by clear and convincing evidence that the proof was evident or the presumption great that the defendant committed an offense that qualifies for pretrial detention.

¶2 In this interlocutory appeal under Illinois Supreme Court Rule 604(h) (eff. Oct. 19, 2023),

the State appeals the January 28, 2024, order of the circuit court of Kane County denying the

State’s petition to deny pretrial release pursuant to article 110 of the Code of Criminal Procedure

of 1963 (Code) (725 ILCS 5/110-1 et seq. (West 2022)), commonly known as the Pretrial Fairness 2024 IL App (2d) 240082-U

Act (Act). See Pub. Acts. 101-652, § 10-255, 102-1104, § 70 (eff. Jan. 1, 2023). The State

contends, inter alia, that the trial court erred in holding that the police synopsis contained hearsay

and that there was no corroboration for the charge of criminal sexual abuse of a minor. For the

reasons that follow, we vacate the trial court’s order and remand the matter for further proceedings

consistent with this order.

¶3 I. BACKGROUND

¶4 On January 22, 2024, defendant was charged by complaint with three counts of aggravated

criminal sexual abuse, defendant more than 5 years older than the victim (720 ILCS 5/11-1.60(d)

(West 2022)) (Class 2 felony). On January 27, 2024, the State fled a verified petition to deny

pretrial release, alleging that defendant was charged with detainable offenses, posed a real and

present threat to the safety of any person or persons or the community, and no condition or

combination of conditions of release can mitigate the real and present threat to the safety of any

person or persons or the community.

¶5 On January 28, 2024, the matter immediately proceeded to a detention hearing, and the

State proffered the following: (1) a sworn police synopsis; (2) a verified petition for civil no contact

order; and (3) a civil no contact order.

¶6 The sworn police synopsis read as follows:

“On 11/13/2023, the Kane County Child Advocacy Center (KCCAC) received a

new report of alleged sexual abuse of a child from the Department of Children and Family

Services (DCFS) intake number 14752624 and Aurora Police Department #2023-014786.

On 11/16/2023, juvenile victim A.C. (DOB 3/11/2008) came to the KCCAC and

participated in a child forensic interview (CFI). A.C. said her family was in the process of

moving and her godfather, [defendant] was helping them. A.C. rode with [defendant] to

-2- 2024 IL App (2d) 240082-U

the new place in Aurora. After A.C. and [defendant] moved things into the new place,

[defendant] began touching A.C. all over her body. During the interview A.C. disclosed

[defendant] touched her breast with his hand, over her clothes, and touched her vagina two

times with his hand, over her clothes. [Defendant] left the apartment shortly after.”

¶7 The verified petition for civil no contact order, prepared by A.C.’s mother, stated the

victim’s request for the order was because “[defendant] *** touched minor child A.C.’s *** breast,

*** thigh, and *** vulva. [Defendant] also *** warned minor child A.C. not to tell nobody because

she already knew what was going to happen.”

¶8 The emergency civil no contact order found “that good cause exists for granting the

remedy regardless of prior service of process or notice upon [defendant], because the harm which

that remedy is intended to prevent would be likely to occur if [defendant] were given any greater

notice than was given, of [victim’s] efforts to obtain judicial relief.” Defendant was ordered to stay

at least 500 feet away from A.C. and not to contact her in any manner. The order further found as

follows:

“In granting the *** remedies, the Court has considered all relevant factors,

including but not limited to the nature, severity, and consequences of [defendant’s] past

non-consensual sexual conduct or non-consensual sexual penetration of [A.C.], including

[defendant’s] concealment of his *** location in order to evade service of process or notice,

and the likelihood of danger of future non-consensual sexual conduct or nonconsensual

penetration of the party to be protected.”

The emergency civil no contact order was issued by the judge in the underlying case, Michael

Noland.

¶9 During the pretrial detention hearing, the trial court suggested that the sworn police

-3- 2024 IL App (2d) 240082-U

synopsis might be considered hearsay. It further suggested that A.C.’s testimony, “since she’s not

here,” might be considered hearsay, rendering the police synopsis “hearsay upon hearsay.” The

trial court then stated as follows:

“So, if I try to take the evidence that by way of some testimony or statement that is

the least riddled with hearsay, I might have to rely upon her verified petition for the civil

no-contact order where she states [that defendant touched her breasts and vagina] and ***

he warned her, warned the minor child, A.C., not to tell anybody because she already knew

what was going to happen. That’s her statement on this petition.”

Defense counsel argued that the statements in the verified petition for civil no contact order were

made by A.C.’s mother, producing “hearsay yet upon hearsay upon hearsay.”

¶ 10 The trial court found that the State had not proven by clear and convincing evidence that

the proof is evident or the presumption great that defendant committed the offenses charged. The

court stated as follows to that issue:

“[T]his is a matter in its preliminary phases. There is yet to have strong proofs

entered as of record, and we’re not seeing anything that indicates that this might necessarily

be a statement by a minor; that there may be something happening here, I’m not sure

exactly what, but I don’t think the Court even in finding probable cause for the arrest

understood exactly what. It’s just whether a reasonable person would believe based upon

the statement of a minor that there might be a reason for an arrest. Not that he’s been

convicted. He’s not being tried here at this time. We’re not getting into the facts of the case.

All right? That’s just a matter for the trial court[.]”

¶ 11 The trial court went on to find that defendant does not pose a threat to A.C., nor are there

any necessary conditions to mitigate a threat posed by defendant. The State then timely filed this

-4- 2024 IL App (2d) 240082-U

appeal.

¶ 12 II. ANALYSIS

¶ 13 Although the State has raised several contentions, we find its contention that the trial court

erred in its determination that the State failed to meet its burden of proving by clear and convincing

evidence that the proof is evident or the presumption great that defendant committed the charged

offenses to be dispositive to appeal. As such, our brief analysis will be limited to that contention.

¶ 14 All persons charged with an offense in Illinois are eligible for pretrial release, which is

governed by article 110 of the Code, as amended by the Act. 725 ILCS 5/110-1.5, 110-2(a) (West

2022). Under the Code, as amended, a defendant may be denied pretrial release where he or she

poses a real and present threat to the safety of any person or the community. Id. § 110-6.1(a). In

order to overcome the presumption that a defendant is eligible for pretrial release, the State must

prove by clear and convincing evidence that: (1) the proof is evident or the presumption great that

the defendant has committed an offense that qualifies for pretrial detention; (2) the defendant poses

a real and present threat to the safety of any person in the community based on the specific and

articulable facts of the case; and (3) no condition or combination of conditions could mitigate the

real and present threat, based on the specific and articulable facts of the case. Id. § 110-6.1(e).

¶ 15 We review the trial court’s decision to deny pretrial release under a bifurcated standard.

People v. Trottier, 2023 IL App (2d) 230317, ¶ 13. Specifically, we apply the manifest-weight-

of-the-evidence standard to the trial court’s factual findings, including whether a defendant poses

a threat and whether any condition or combination of conditions could mitigate that threat. Id. A

finding is against the manifest weight of the evidence only if the opposite conclusion is clearly

apparent. In re Marriage of Kavchak, 2018 IL App (2d) 170853, ¶ 65. As for the trial court’s

ultimate determination of pretrial release, we review it for an abuse of discretion. Trottier, 2023

-5- 2024 IL App (2d) 240082-U

IL App (2d) 230317, ¶ 13. An abuse of discretion occurs only when the trial court’s determination

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

by the trial court. Id.

¶ 16 While the Act requires proof by clear and convincing evidence, it also expressly provides

that the State may satisfy its burden of persuasion by presenting evidence “at the hearing by way

of proffer based on reliable information.” 725 ILCS 5/110-6.1(f)(2) (West 2022). The quantum

of evidence required to detain a defendant pending trial is less than what is required at trial to prove

guilt beyond a reasonable doubt (see id. §§ 110-6.1(f)(2), (f)(4), (f)(5), and this court has repeatedly

held that a police synopsis alone may be sufficient to sustain the State’s burden. People v.

Mancilla, 2024 IL App (2d) 230505, ¶ 24; People v. Horne, 2023 IL App (2d) 230382, ¶ 24; People

v. Jones, 2024 IL App (2d) 230546-U.

¶ 17 Most hearings under the Act will not be a traditional type of evidentiary hearing, with live

testimony in which a witness testifies to his or her personal knowledge. People v. Whitaker, 2024

IL App (1st) 232009, ¶ 55. Although the parties are permitted to call witnesses and present

evidence, the legislature has recognized that requiring live testimony at such a hearing would be

extremely burdensome. Id. As a result, the legislature has directed that “[t]he rules concerning the

admissibility of evidence in criminal trials do not apply to the presentation and consideration of

information at the hearing” (725 ILCS 5/110-6.1(f)(2), (5) (West 2022)), specifically permitting

acceptable evidence to include hearsay, and proffers based on reliable information. A proffer

“apprise[s] the trial court what the offered evidence is or what the expected testimony will be, by

whom it will be presented and its purpose.” Id., quoting People v. Weinke, 2016 IL App (1st)

141196, ¶ 41.

-6- 2024 IL App (2d) 240082-U

¶ 18 The evidence that is explicitly permitted by the Act includes hearsay, which may come

from the complaining witness, police officers or other witnesses. Whitaker, 2024 IL App (1st)

232009, ¶ 57. Such evidence, when admitted without objection, is to be considered and given its

natural probative effect. Id. Hearsay evidence can be sufficient to meet the State’s burden of proof

under the Act. Id.

¶ 19 While this court cannot say whether the trial court’s finding that the State failed to prove

by clear and convincing evidence that defendant committed the charged offenses was against the

manifest weight of the evidence, the record shows that its finding on this issue was an abuse of

discretion. We are not holding that the State met its burden by clear and convincing evidence, but,

rather, that the trial court’s findings were at least partly based on the erroneous notion that the

sworn police synopsis and verified petition for civil no contact order were hearsay, and could not

be used to determine whether the State had met its burden. See Whitaker, 2024 IL App (1st)

232009, ¶ 57.

¶ 20 III. CONCLUSION

¶ 21 For the foregoing reasons, we vacate the order of the circuit court of Kane County denying

the State’s petition to detain and remand the matter for further proceedings consistent with this

order.

¶ 22 Vacated and remanded.

-7-