No. 2--06--0144 Filed: 3-27-08

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

______________________________________________________________________________ THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court IL LI NOI S, ) of Du Pa ge Co un ty. ) Plaintiff-Appellee, ) ) v. ) No. 02--CF--3507 ) MICHAEL

P. CARDAMONE, ) Honorab le ) Michael J. Burke, Defend ant-App ellant. ) Judge , Pres idin g.

____________________________________________________________________________ JUSTICE CALL UM delive

red the o pinion of t

he court : I. I NTRODUCTION Defend ant, Michael P. Cardamone, a gy mnastics coac h, wa s charged with predatory criminal sexual assault of a child (720 ILCS 5/12--14.1(a)(1) (West 2002)) (8 counts) and ag gravated criminal sexual abuse (720 ILCS 5/12--16(c)(1)(I) (West 200 2)) (18 counts) against 14 gy mnasts at the American Insti tute of Gy mnastics ( gy

m) in Aurora. Defendant's jury trial lasted approximately two months, included more than 100 witnesses for the defense, and genera ted over 10,000 pages of hearing transcripts. After deliberating for thre e days, the jury

found de fendant

guilty of nine c ounts of aggravated cr

iminal sexual abuse against seven girls. The trial court denie d defen dant's posttrial motions and sentenc ed him to 20 ye ars' im prisonme nt. Defendant

appeals, arguing that: (1) the tria l court erred in admitting evidence of uncha rged misconduct

against the complainants; (2) the trial court erre d in admitting evidence of unchargedNo. 2--06--0144

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misconduct

against a girl at another g ymnastics club; (3) the trial court er red in refusi ng defen dant's unanimity

instruction; (4) the trial court abused its discretion in excluding expert witness testimony regarding the compl ainants'

statemen ts' rel iability

inlight of suggestive interview tec hniques; (5) the trial co urt abused its discretion in refusing to instruct the jury on the lesser included offense o f battery; (6) the

trial court erred in barring def endant's videotape of

th e g ym' s f

ac il it y, not allowing the jury to visit the facility, and allowing the State's videotape and photogr aphs of the facili

ty b oth into evidence and inside

jury deliber ations; (7 ) the State

failed to prove defendant's g uilt beyond a
reasona ble doubt; and (8) the trial court abused its discretion du r ing sentencing by

considering defenda nt's fa ilure toadmit gu

ilt instea d of his rehabil itative po tential. F or the fo llowing r easons,
we agree with defe ndant' s arguments regarding the improper a dmission of uncharged

conduct, the refusal of th e u na ni mi ty i nstruction , a nd th e e xc lu si on of ex pe rt wi tn es s t es ti mo ny. Ac co rd in gl y,
we reve rse and r emand the

cause f or a new trial. II . BACKGROUND A. State' s Case All of the acts defendant allegedly committed, except for one, occ urred a t the gy m, which is owned and run by

defendant's family . The gym' s main area resembles a larg e, open warehouse and is filled wit

h gy mnastics e quipment, including a foam pi t, mats, uneven ba

rs, bala nce bea ms, vaults, and a floor exercise area. The square floor e xercise area is in the center of the room and is bordered by an area with several

sets of uneven ba

rs on one s ide, vaul

ting run way s, vaults, and a tumble track
onthe second side, a

n area w ith several balance beams and windows on the third side, a nd anopen
area infront of the fourth side. The foam pit, a large pit filled with big, square, blocks of soft foam, is located in the corner between the uneven bars and some of the vaults. On theopposite side of theNo. 2--06--0144

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gy m, inthe corner

between the balance beams and the other vaults, is a storage area. There are no walls or other barriers dividing the gy m's main area. Smaller rooms, adj oined by a hallw ay, are located outside th e gy

m's main area. T hose room s are preschool rooms, which are referr ed to as the "house room" and the "castle

room," a nd a music

room. Gy

mnastics, prescho ol, and cheerleading classes are con ducted du ring bus iness hours. The 14 complainants were gy mnastics studen t s at the gy m. Complainant C.E. made allegations against defendant in November 2002, and the r emaining allegations followed. All the conduct, charged and

uncharged, allege dly occurr ed during a three-y

ear time period, between 1999 and 2002. Of t

he 26 cou nts char ged, de fendant

w as conv icted of

9 counts of

misconduc

t, agai nst complainants A.P., A.S. (2 counts), B.P. (2 counts), S.H., N.E., S.O., and C.E. The charges and the testimony of these complainants, in the orde r that they appe ared at trial, follow. 1. Complainant A.P. Defend ant was c harge d with pre datory

criminal sexual ass ault ag ainst A.P. for penetrating her sex orga n with his fing er and a

ggra vated cr iminal sexua

l abuse for touching A.P.'s sex organ for the purpose of sexual gratification. According to the charges, the two counts represe nted alternative theories relating to the same act, which occurr ed sometime between Dec ember 2000 and March 2002, whil e A.P. str

etched a gainst a mat by a vault. At trial, A.P. testified first to the conduc t t hat was the subject of the charge s. A.P. began attending classes at the gy m whens he was 6 or 7 years old and continued there until she was 10 years old, in 2002. Defendant was her primary coach when she began; he c oached her less with each passing ye ar. Around December 2001, defendant assisted A.P. with a straddle stretch. He leaned
a mat against a vault. A.P. lay down on the flo or, with her head towards a wall and her leg s andNo. 2--06--0144

1 This instruction was repeated each time a subsequent complainant testified about uncharged conduct. -4- bottom agains t the mat. She sprea d her leg s and de fendant, kneeling, placed one hand on e ach of her thighs and pressed down to stretch her. He then moved

his hands c loser to h er vag ina and sl id his finger be neath her leotard, touching her vag ina. He felt around and put his finger inside her vagina to the end of his fingernail--approximately half an inch. After sliding his finger unde r h e r leotard and inserting his finger inside her vagina, def endant ke pt his fing er ther

e for two seconds.

The assistant State's Attorney notified the trial judge that A.P. was going to discuss add iti onal conduct. The trial judge told the jury that evidence would be presented that defenda ntwas involved in offen ses other

than those

charg ed in the i

ndictmen t and that the evide nce was to be received on the issues of

defenda nt's inte nt, absen ce of inn ocent me ntal state , course

of condu ct to cor roborat e the victim's testimony conce rning the charged off

ense, and "for

its bearing on any

matter to which it is relevant." 1 As to uncharged

conduct, A.P. testified that defendant had touched her inappropriately, the
same way and inside he

r vagina, 40 to 50 other times. Defendant penetra ted her vagina every

year that she took classes at the gy

m, but the number of

times dec reased each y ear. A. P. testifie d that this behavior always occ

urred in the same location of the gym. Althoug h she first testified that he had touched her 40 to 50 times, A.P. later estimated that, by the time she left the gy

m, de fendant had touched her inappropriately over 100 times. A.P. ac kn ow le dg ed th at th e g ym was very crowded. She testified

that, whe n the inci dents occurred, as many as

100 to 200 other people were present in the gy m, many within a matter of feetNo. 2--06--0144

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from her. Other

girls we re in lines, va ulting pa st her, f

rom both di

rection s. A.P. did n

ot object to being stretched by de fendant, nor did she com plain to anyone . She testified that she did not complain to defendant, tell him to stop, or flinchand try to get a way . A.P. kne

w what ina

ppropria te touching was and

testified that, whenever she went by the vault to stretch, she knew that defendant
was going

to insert his finger

in her vagina. A.P. testified that, every time defendant stretched her, he put his finger inside her vagina; he never did the stretch without doing so. She co ntin ued to go to him to stretch. A.P. testified that other gy mnasts also went behind the mat to be stretched by defenda nt. A.P. never looked

to see if defendant was doing the same thing to them that he did to her.

A.P. testified that she left the gy m in 2002 because the tr aining and conditioning were too difficul t. After she left the gym, A.P.' s mother asked her whether defendant had eve r touched her in ap pr op ri at el y. A.P. testified that she told her mother

no, that he had not touched her, because she did notwant to g et involve d and did not want every

one at the gy

m to hate her. Her mother gave he r
anaffidavit that stated, "[d]efendant never tou ched me in an offensive or inappropriate or sexual manner, nor did I

ever se e him touch any

other g ymnast in an in

appropr iate or se xual manne

r." A.P. signed the affidavit on May

1, 2003, but te sti fied tha t in it she w as not tell ing the t ruth. A.P. explained that h er mot her was one of defend ant's ardent s

upporters, which ma

de it har d to tell the truth. Later, in April 2004, A.P.'s mother again asked whether an ythi ng had h appene d betwee

n A.P. and defenda nt. A.P. cr

ied and to ld

her mother that defendant had touched her. A.P. knew some of the other complainants and looked up to them as s uperior gy mnasts. The other c omplaina nts were ina different

training group, and A.P. w as not in th eir "clique." She did not discuss the allegationsNo. 2--06--0144

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agains tdefendant

with those girls because she had alrea dy left the gym be fore the allegations started. A.P. was not present at a November 2002 sleepover he ld by complainant B.P. The jury found

defenda nt not gui lty o f penetr

ating A .P.'s sex organ w

ith his finger. However, it did find him guilty of touching A.P.' s sex organ for the purpose of sexual gratifica tion. 2. Complainant A.S. Defend ant was c harge d with pre datory

criminal sexual ass ault

agains tA.S. for penetrating her sex organ with his finger and aggravated cr

iminal sexual abuse for touching A.S.'s sex organ for the purpose of sexual gratification. The act alleg edly occur red in the summer of 2000, during straddle stretches near

a vault. In addition, defendant wa s charged with agg ravated criminal sexual abuse for touchin

g A.S.' s breast

in the summe

r of 2001, during u

neven ba r exercis es. At trial, A. S. test i fied that she began gy mnastics at the gy

m when she was three y

ears old. She left the g

ym a bout 10 y ears la ter, in Se ptember 2002. Dur

ing A.S.' s last few

ye ars at the

gy m, defenda nt was he r main co ach. Abo

ut 10 to 15 girls were in her training gr oup; several girls from the gro up ultimate ly b ecame

complainants. She k

nows all of

the compl ainants, and most of them
are her friends. They

attended sleepovers together, talked on the telephone, and wrote online to each other. As to the first charg ed incide nt, A.S. te stified that, in

the summer of 2000, while assisting her with asitting middle spli t, defen dant's r ight han d moved fr

om the bac

k of her t high ne ar her h

ip bone, over her leg, and under her leotard. Defendant touched her vagina under her leotar d, moved his hand around, and

then inserted one of his fingers about one inch inside her vagina for 10 to 20 seconds. A.S. was st retchi ng at the ba ck of th e gy m, by the storag e area and a vault, when theNo. 2--06--0144

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incident occurred. A.S. was against a mat dur ing th e stretch; some teammates were stretching on the other side of the mat, but no one was next to her. A.S. testifie d to a sec ond char ged inc ident. In thesummer of 2001, she was working on her uneven bars routine on a bar that was place d over the foam pit. Defendant was standing on a mat, assisting A.S. as she performed a particul ar skill. A.S. dismounted the bar into the pit; defendant either fell in or jumped in after her. A.S. was immersed in the pit. Defendant, on her right side, started tickling her on he r stomach . He then

put his hand through the arm hole of her leotard (near her underarm) and started touching her rig ht breast with his fingers and his palm for 10 to 30 seconds. A.S. reacte d by biti ng defen dant's forear m. Def endan t's mother, the gy

m's owner, y

elled at A.S. that, if she ever bit defendant again, she would

be kicke d out of the

gy m. A.S. did not

tell defendant's mother why

she bit defendant. Next, A.S. testified

to three categ ories of

uncharged condu

ct. Firs t, A.S. testified that, in the
summer of 2000, defendant touched her vagina, during stretches and by the vault, between

2 and 10 times. Each time, def

endant w ould put his

finger inside he r vagina. A.S. ne

ver said any thin g t o defendant; he never said any thing to her. Second, A.S. testified that, in the summer of 2000, defend ant a ssisted her while she performed wheel conditioning and low bar e xercises near the uneven bars and a vault. Defendant placed h is right han d on her shoulder and his left hand under her thigh. His lef t hand moved underne ath

her leot ard to touch her vagina, and he inserted his fing er one inch inside her vagina for 10 to 20 seconds. There was no one next to her at the time. A.S. estima ted that d efenda nt did this between 5 and 15 times that su

mmer. She did not tell any adults about what defe ndant had done.No. 2--06--0144

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Third, A.S . testified t hat in the pit defendant had touched her breast prior to the inc ident where she bit him. The circumstances were the same, i.e. , after completin

g a skill and landing in the pit, defendant tickled her and put his hand underneath her leotard. A.S. estimated that defe ndant had touched her brea st 5 to 10 time s and that she had b it him before--5 ti mes at the

most. A.S. went to B.P.'s sleepover on November 23, 2002. At that par ty, ther e was a general discussion amongst

a number of girl s about be ing touc

hed by defenda nt. There, A.S. said that she
was touched under her bra strap. When interviewed in Ja nu ar y 2 003, two years a fter the alleged incident s with defe

ndant, A.S. was asked how many times defendant touched her in an inap propria te
wa y. She responded "not a whole lot." At t

hat time, she stated that defendant touched her crotch
area "maybe two times" and, when asked whether defe ndant touched her outside or inside her vaginal
a rea, she resp onded " outside." The State and defe ndant stip ulated th at the first perso n to use th e word "vagina" was an

investig ator, in Jan

uary 2003; A.S. never used that word until after it was used by the investigator. In addition, when interviewed in January 2003, A.S. did not mention the wheel or low ba r conditioning inc idents because she had not done the

exercise s in two y

ears an d did not
re member

t he incide

nts. At tria

l, A.S. est

imated tha

t defend ant touched her inappropr iately "proba bly about 30 ti

mes" an d esti mate d that defendant put his finger inside her vagina about 20 times, between 2 and 10 of those times during straddle stretches. A.S. testified that she did not leave the gy m in September 2002 becaus e she wa s h aving trouble with defendant. Rather, she left thegy m becaus e she did

not get along with defendant' s wife, Elizabeth (Liz) Cardamone, who was also a coach at the gy

m. A.S. agreed that the gy m was quite active and that there could be 100 to 200 people at thegy m on a normal day, includin g Li z. A.S. did not see defendant inappropriately touch anyone e lse.No. 2--06--0144

-9-

The jury found defe

ndant not guilty of pene

trating A.S.'s sex organ

with his finger. However, it found him guilty of touching A.S.'s sex organ and breast for the purpose of sexual gratification. 3. Complainant B.P. Defendant

was charged with two counts of ag gravated criminal sexual abuse ag ainst B.P. for: (1) touching her sex organ in December 2001, during straddle stretches by

a vault; and

(2) touching her breast in December 2001, during an arc h stretch near the tumble track and floor exercise area, for the purpose of sexual gratification. At trial, B.P. testified that she began gy mnastics at the gy

m when she was four y

ears old. She left the gy m in November 2002. Regarding the cha rged conduct, B.P. testified that in D ecember 2001, she was performing an arch str etch tha t require d her to lie

on her side with her hands above her head, arch

her back to bring her leg s behind her, and touch her feet to her head. B .P. performed this stretch by the floor

exercise area, in between the floor and the tumble track. While B. P. stretched, defendant kneeled behind her with one hand on he r knee and the other near

her unde rarm. As defendant pushed her

legs tow ards her

head, he slid his hand from her underarm, undernea th the seam of her leotard and bra, and onto her brea st. His fingers moved about one inch past the seam line; his fingers did not touch her nipple area. He did not squeeze, grab, rub, or perfor m any similar motions. B.P. pretended

that the stretch was too hard on her back, and she told def endant to stop. He r o th er te am ma te s w er e w or ki ng on ju mp s a nd tu mb li ng ne ar by. B.P. t es tified to a second charged incident. I n December 2001, B.P. performed a sitting straddle str etch on a mat between a wall and the floor e xercise area, near the vaulting a rea . Sh e usually had assis tance du

ring the stretch, to stradd

le her leg s flush ag ainst the mat. On this occasion, defendant lay on his stomach on

the ground behind her, with his elbows on theground, and placedNo. 2--06--0144

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his hands on h er hips to

push her towards the mat. As he pushed her farther into the mat, defenda nt slid his h ands d own he r leg, towards her bottom, and underneath her leotard. His fing ers touched her vagina , but did not

penetra te. Rathe

r, his han ds t ouched

the skin surrounding her vaginal opening. Next, B.P. testified to two categories of uncharged conduct. First, B.P. testified that, during the 2001-02 competitive season, she performed the arc h stretch numerous times, and defendant touched her breast "around seven

or ten, maybe, mor

e or less" times. There were occ asions where defendant would assist her with the stretch and not touch her brea st. Second, B.P. testified that defendant touched her vaginal area during stretches on about 10 occasions. She told defendant to stop the stretch because her legs hurt. She did not tell an adult that defendant touched her, bec ause she had many

friends at the g ym a nd did not w ant to lea

ve them. B.P. tes ti fi ed th at sh e n ev er sa w d ef en da nt in ap pr op ri at el y to uc h o th er gi rl s. Sh e w as at th e g ym fi ve da ys a we ek fo r f

iv e h ou rs pe r d ay. OnNovember 23, 2002, B.P. ho sted a sleep ov er at he r h ou se fo r h er bi rt hd ay. Approximat

ely 20 girls from the gym were pre sent. At the party, ther e was discussion about allegations coming forth from C.E
. (the first girl to publicly a ccuse defendant) about being inappropriately

touched by def

endant. At the party , B.P. said that defendant had also touched her, but s he was n ot sp ecifi c abou t the t ouchi ng. The jury found de fendant

guilty of to uc hing B.P.'s sex organ and brea st for the purpose of sexual gratification. 4. Complainant S.H.No. 2--06--0144

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Defendant was charge d with predatory c riminal sexual assault against S.H. for penetrating her sex organ with his finger

and with aggravated c

riminal sexual abuse for

touching S.H.'s sex organ for the purpose of sexual gratification. According to the charg es, the two counts represented alternative theories relating to the same act, which occurred sometime in the summer of 2001, w

hile S.H. was in the gy

m's foam pit. As to th e charged condu ct, S .H. te stif ied th at, in the su mmer o f 2001 , she w as lear ning a new skill on the vault that required her to land in the foam pit. Defendant jumped into the pit after S.H. landed and beg an ticklin

g her st omach. S. H. was covered up to her wa

ist with the

pit foam. Defendant

slid his han

d underneath her

leotard and touched his finger to her vagina. De fendant put his finger inside her vagina; he also t ouche d the s kin s urrou ndin g her vagi nal op ening. There was no one waiting to perform a vault or standing a round the pit. Next, S.H . test ified to five categories of unchar ged conduct. First, she testified that, on another occasion, she landed in the foam pit after perfor ming an u neven bars skill. Defendant jumped into the pit and tickled

and touched her. H e touche d her vag ina under neath he r leotar d with his hand. S.H. could not remember whether defendant touched t he inside of her va gina du ring thi s incident
. On cross-examination, she added that def endant ju mped into the pit afte

r her va ult exerci se
ony et another

occasion and that defendant inappropriately touched her in the pit on two or three occasions. Second, S.H. rec alled pul li ng her h amstring in April 2001. She testified that, on two occasions, once by the

vault and once by

the uneven bars, defendant massag ed her ha

mstring w hile she was ly

ing on he r stomach . He used

both hands to massage S.H. and then slid his hand up and put his finger

tip inside her vag ina. When d efenda nt touche d her vag

ina, S.H. t

old him that

it wasNo. 2--06--0144

-12-

time to use the

Icy Hot, bec ause she

wanted h im to stop. T

he secon d time this o ccurre d, teamma te N.E. was a coup le of feet in fr ont of S.H. N.E. "gave [S. H.] a look ." Third, S.H. testified that defendant touched her vag inaduring a straddle stretch. S.H. was stretchingin the area

between the vaults and the balance beams. De fendant placed his hands on her upper thigh to push her towards the mat. His hands went under her bottom and he touc hed her vagina with his finger. His finger did not go inside her vaginal opening. This occurred one or two times. W hen defendant touched her, S.H. said, "[l]et's go t o the next event." Fourth, S.H. testif

ied that d efenda nt assiste d her whi le she performed wheel conditioning--a
core condition

ing skill performed by

holding with both hands a small wheel with handles and rolling forward and backwa rd. This sk

ill wa s u su al ly p ra ct ic ed by t he un ev en ba rs an d t he va ul t r un wa y. Defendant

placed one ha nd on S .H.'s stomach and the other on her legs. He moved the hand that was
onher legs up to her crotch and vag ina. He touched her vagina under n e ath her l eotard w

ith his finger. His finger did not go inside her vagina. S.H. testified that defendant touc hed h er twice during wheel exercises. Fifth, S.H. testified that defendant touched her vag ina while spotting her on a pre s s handstand. S.H. and S. O. were both doing

press ha ndstands near the

vault and foam

p it. S.H. testified that she told S.O. what defendant had done. Accord ing to S.H., S.O. responded, "[y]ou have to tell him." S.H. ref

used and did n ot want S.O. to say any thing. S.O. called defendant over, and S.O., defendant, and S.H. had a conversation. S.H. could not rec all ex actly what S .O. said to defendant. Defendant responded, " It sometimes slips. It's an ac cident. You have to tell me when it happens." S.H. was angry that S.O. said anything

to defendant, because she did not want him or anybody to know.No. 2--06--0144

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S.H. summa

rized at tr ial that, in her seven years at the gy m, defendant touched her vaginal area " not more than 10" ti mes. Of those times, his finger went inside her three times. She agreed that the gy m was busy

and that, on any

given d ay , there c ould be 10 0 to 200 pe ople pre sent, including Liz . Some parents stood in doorways to obser ve, and some parents sat in cars in the parking lot, looking inside through the windows. She never told an

adult tha t defend ant was to uching her, bec ause she

was uncomfortabl e and embarrassed

to talk about it and

did not want to leave the gy m. S.H. tes tified tha

t she was n

ot afra id of defendant. She went on three trips to L ake Owen, Wisconsin, with defendant and L iz. At B.P.'s November 23, 2002, sleepover , S.H. and so me girl frien ds di scuss ed defe ndant 's touches. Most of S.H.'s teammates we re present. S.H. was a close friend of N.E. and B .P. S.H. further t es tifi ed tha t, th e night before the sl eepov er, sh e told her mo ther ab out d efenda nt's inappropriatetouching. She testified that she was uncomfortable talking to her mother about a ll of the details and circumstances of defendant' s touching. S.H. agreed, on cross-e xamina tion, that in neither an interview conducted on December 3, 2002, by investigators nor her 2002 discussion with her mother did

she mention the I cy

Hot or pre ss handsta

nd incide nts. Nor did

she mention the pre ss handstand

incident in her summer 2003 interview with prosecutors . Also , she did not mention in any of these

three conversations the presence of N .E. or S.O. during two of the incidents. The jury found de fendant

not guilt y of penet rating S.H.'s se x organ w ith his finger. However, it did find him guilty of touching S.H.' s sex organ for the purpose of sexual gratifica tion. 5. Complainant N.E. Defendant

was charged with predatory criminal sexual assault against N.E. for penetrating her sex orga n with his finger and aggravated c

riminal sexual abuse for touching N.E.'s sex organ f orNo. 2--06--0144

-14-

the purpose of sexual gratification. According to the charges, the two counts represented alternative theories relatingto the same act, which occurred sometime betwee nJuly a nd Octobe

r 2002, wh

ile N.E. stretched against mats by a vault and the uneven bars. At trial, N.E. testified that she started classes at the gy m when she was 6 years old (1996) and left th e g ym when she was 12 y ears old (November

2002). As to the charged conduct, N.E. testified that, in August 2002, she had a private lesson with defendant ona weeke

nd morning . No one e lse
was present at the gy

m. She w as perfor ming a s tradd le str etch, lying on h er back with her legs spread agains ta mat. Defendant sat on he r chest, facing

the mat. H e touche d her kne es with his hands and pushed down on them to help her stretch. Defendant slid his han ds down N. E.'s le gs, touching her inne

r thighs
. He moved his hands underneath her bottom and pushed it closer to the mat, which made her

leotard looser in her crotch area. D efendant put his hands back on N.E.'s inner thighs and then d

own to her vagina. N.E. testified that defenda nttouched her vagina with his right fingers and moved

them up and down. His fingers touched the skin surrounding the opening of her vagina, and he touched the opening of her vagina for

10 to 15 sec onds. N.E. c ould feel de fendan t's finger nail inside the openi

ng of he r vagina for thr

ee to fiv e second s. She moved her body, a nd he stopped touching her. N.E. testified that, when defendant told her to stretch by the mat during her private lesson, she knew what he was going to do to her. She did not tell defendant that she did not want to go by the mat or that she did not want to per form the stret ch. N.E. did not say

any thing to defendant. Next, N.E. testified to two categ ories of unc harged conduct. First, she testified that def endant touched her vagina during a stomach straddle stre tch. He pushed down on her tailbone, pulled her bottom back, ma

king he r leotar d looser, and put his

hand unde

r her le otar d to touch t

he skinNo. 2--06--0144

-15-

surrounding t he openin

g of he r vagina. He put

his fing er inside

the openi

ng. He d id not put hi s finger in very

far; he moved his fingers up and down on the skin surrounding the opening. S ec ond, N.E. testified that defendant touched her during a wheel exercise by

moving his hand from her stomach to between her leg s and then to her vagina. His fingers touche d the skin around the opening and moved up and down on her skin. Defendant's finger

did not go inside N.E.'s vagina.

Inan interview on November 26, 2002, N.E. said that thetouching happened "like maybe 10" times. At that time, she stated that defendant touched her on, not in, her "crotch" during t

he strad dle stretch. N.E. did not ment ion being to uched during the wheel exercise. When the investig ators asked her whether defendant ever touched her any

where else on

her body, N.E. a

nswered "No. *** Well, not inappropri ately, no." During an interview in October 2003, N.E. told an assistant State's Attorney that defendant inappropriately

touched her appr

oximately once pe r week, but n ot every we ek. At trial, N.E. estimated that durin g strad dle stretches defendant touched her vag ina about one time per

month. The touching continued either once a week or once a month from December 2000 to August 2002. She estimated that defendant touched her during the wheel exercise "only

a couple, like three" times. N.E. testified

that she saw defendant inappropriately touchB.P. She explained that she saw defen dant assistin g B.P. with an arch stretch--pulling her leg behind her, by

her head--and that defendant put his hand by B.P.' s breast. She cou ld not discern wheth er defe ndant touch ed B.P .'s breast. She did not see defendant touch B.P. on the vaginal area.No. 2--06--0144

-16-

N.E. recalled that S.H. had a hamstring problem and that de fenda nt would massa ge S.H. 's hamstring by a

vault while S.H. lay on her stomac h. N.E. did not see defendant do any thing unusual or inappropriate when he massage d S.H. N.E. testified

that she observed defendant inappropriately touching S.O. She recalled S.O. performing

a straddle stretch

when def endant tr ied to touc

h S.O. by her cro tch. N.E. could not r ecall what type of stretch

S.O. was d

oing, where she

was loca ted in the gy m, or what yea

r this occurred. She could notsee whether defendant touched S.O. inside or outside S.O.' s leotard. N.E. told S.O. to "come over by

me" so that S.O. could get away from defendant. N.E. testified that

she generally

did not focus on what defendant was doing

to her te ammates. She would look at him from time to time when defendant was with a teammate, but she did not see any other instances of inappropriate touching. She could not see every part of the g irls' bo dies while defendant spotted them. N.E. agreed that gy mnastics i s a relati

vely competiti ve sport a nd that, w hile waiting to use a piece of equipment, e.g. , the uneven bars, she would look around the entire bar area to observe

what the other gi

rls were doing on their whe el exerc ises, as well as what was happening on the floor and the vaults. The girls watched ea ch other as they

practiced. N.E. nev er told a

n adult that def endant to uched he r, beca use she liked defendant

as a coach, she liked the gy m, and she did not want to leave. She also liked defendant as a person. She was around 10 years old whe

n the events occurred, and she trusted defe ndant. N.E. did not tell her mother about the touching until after B.P.'s November 2002 sle epover party . She was a close friend of the other complaina nts. They

were lik e sisters and wer e friends for se

veral y ears, th ey went to sleepovers and on tri

ps toget her, and their pa rents as sociate d with

each other. N.E. testified that sheNo. 2--06--0144

-17-

had discusse d defend

ant's c onduct wi

thher friends, before the November 2002 sleepover and then again at the sleepover. The jury found defe

ndant not guilty of pene

trating N.E.'s sex organ

with his finger. However, it did find him guilty of touching N.E.' s sex organ for the purpose of sexual gratifica tion. 6. Complainant S.O. Defend ant was c harge d with pre datory

criminal sexual ass ault ag ainst

S.O. for penetrating her sex organ with his finger and with aggravated criminal sexual abuse for touching S.O.'s sex organ for the purpose of sexual gratification. Acc ording to the charges, these two counts repr esented alternative theorie s relatin g to the s ame act , which oc curred sometime

in the fall of 2001, while S.O. performed

a stretch against a mat by a vault. In addition, defendant wa s charged with predatory criminal sexual ass ault

against S.O. for

penetrating her sex organ with his tongue sometime between Novem ber 20 00 and Novem ber 20 02, wh ile S .O. st retche d her h amstr ing. At trial, S.O. te st if

ie d t ha t s he be ga n g oi ng to th e g ym when she was six years old. She left inNovember 2002. As to the charged conduc t, S.O. testified

that, in the fall of 2001, when she was 11 or 12 year

s old, she was performing a back straddle stretch agai nst a mat, n ear a vault and the stora ge area. She lay on her ba ck and defendant straddled her, fac ing the mat, and pushed down on her knees to help the stret

ch. S.O. st

ated tha t defend ant moved

his left ha

nd to pull her leotard over, exposing her

vaginal area. He

th en to ok hi s r ig ht ha nd an d t ou ch ed he r v ag in al ar ea , s pe ci fi ca ll y, "inside the two flaps over the raised bump," with one finger . He moved his finger back and forth. His finger touched the inside flaps of her vagina for 1 2 to 15 sec onds, but his finger did not go inside the opening of her vagina. She a greed that, on any

day in the fall of 2001, there might have been 100No. 2--06--0144

-18-

to 200 people pr

esent in the gy

m. There were pe ople on the floor and on the balance beam during this incident. Describinganother charged incident, S.O. testified that, appr oximately two y

ears before she left the gy m, she inju red her left h amstr ing. She stret ched he r hamstri ng by lyin g on her back with her right leg on

the ground

and her l eft leg

in the air . S.O. was

stretchi ng by the vault and foam pit area, with her feet towards the pit, a big blue mat on her lef t side, and a wall on her r ight side. Defendant

kneeled on her right sidewith his right hand on her right leg a nd his left hand on her left leg to assist her with the stretch. He moved her l eotard with his left hand and touched her vagina withhis right hand. He then touched her vag ina with his tongue "on top of the two flaps ." Hi s tongue did not go inside her vagina. There were peo ple on the uneven bars. However, the mat between her and the bars was four or five feet higher than her body , which was lying

on the ground. No one was on the vault. She could not recall whether people were on the floor. S.O. thentestified to two categories of uncharg ed conduct. First, S.O. testified that, during the approximately two seasons prior to her departure from the gy

m, defendant touched her vagina "about 20 times" during back straddle stretches. S.O. testified that, a t some point, she told defendant to stop beca

use it was "bad tou ching" and inapp

ropriate . She coul d

not reca ll the words she used and remembered

speakingvery quietly

, in a whisper. S.O. did not know if defendant heard her. After she spoke up, defendant touched her ag ain, but not as much as before. However, i n a November 2002 interview, S.O. told investigators that defendant stopped

touching her after she told him to stop. Second, S.O. testif

ied that t he gym he ld a sleepover and that the girls put panel mats over beams and slept under

the beam s, like in for

ts. She tes tified tha

t she was l

yin g next to de fendant
. Liz was the c losest

person to defendant on

the other side. S.O. conceded that her memory about theNo. 2--06--0144

-19-

inci dent was not "cry stal clear." She testified that she was try ing to go to sleep, and defend an t touched her vagi nal area with his finger through he r pajama shorts. He then picked her up and rubbed the front of her body against his body. During a November 2002 interview with investigators, S.O. did not mention that defendant used his tongue to touch her vagina during a hamstring stretch. S.O. testified that she di d not te ll i nv estigators about the tongue incident because she wa s embarrassed and nervous. After the November

2002 intervie

w, S.O. met with a co

unselor. After se

veral me etings , S.O. admitted to the counselor that she had not told the investigators that defendant touched her with his tongue. S.O. told as si st an t S ta te 's At to rn eys in October 2003 that defendant used his tongue during a hamstring stretch. Ina Dece

mber 2004

intervie w, S.O. told

investig ators, f

or the fir st time, tha

t defendan t inappropriately

touched her at a sleepover. I n that interview, S .O. did not tell investigators that defendant touched her vag ina durin

g the sle epover, but she tol d them about the tongue incident. She also mentioned, for the first time, that defendant took her into a private area at the gy m, the castle room, to ice part of her body and that he inappropriately

touched her. At trial, S.O. could not recall why she was in the castle room or what defendant said or w hy he was t

here. Sh e stated , "I

just remember

being in th ere. It was just me and [defe ndant]. And I remember he did something inappropri ate." OnJanuary

8, 2005, for the first time and th ree week s befo re tri al, S .O. to ld ass istan t Sta te's At to rn eys that defendant

touched her during wheel exercises. At trial, S.O. admitted that she never mentioned

touching during wheel exercises in her f irst videotaped interview in 2002 , to her counselor, during her second videotaped interview in 2004, or

to her parents. She testified that sheNo. 2--06--0144

-20-

did, however , have c onversa tions with other g irls afte

r their interviews, specifically

A.S., where they said that they had bee n touched durin g wheel exerc ises. S.O. testifie d that her convers ation with A.S. made her remember that it had also happened to her
. Oncross-examination, when asked how many times she had bee

ninappropriately touc

hed by defendant

prior to the fall 2001 charged incident, S.O. stated that she had not cou

nted, but c ould estimate "ma ybe four times." She s tated that t he incident s were a "blur." S.O. further testified

that, approximately two y ears before she left the

gym, she a

nd S.H. were performing

press handstands on

the vault runway across f rom the fl oor. Acc ording t o S.O., S.H. t

old her that defendant

put his fingers down S.H.'s leotard. S.O. testified that she approa ched defendant and whispered in his ear, "[S.H.] said that your fingers went down her leo." D efendant responded that he could have been looking around the gy m and that

it could have accidently

slipped in. S.O. did not tell the investigators about her conv ersation with S.H. during the press handstands or her conversation

with defendant regarding

his touching S.H. during that exercise. She testified that she did not realize that his claiming it was an accident was important. According to S.O., in the summer of 2002, at home, she told her mother that defenda n t inappropriately

touched her. She told her mother that it had not happened before , that it happened only once, that defendant was spotting her whe n it occurr ed, an d that she thought that it was an accident and "no big deal." S.O. testi fied t hat, a ltho ugh she told her mother it happened only once, that was not the truth. She did not tell her mother that defendant had touched her vag ina. She said that he tou ched her "privat e." S.O. was pre se nt at B.P.' s sleepover on November 23, 2002. She participated in a conversation

with other girls at that sleepover about defendant inappropriately touching girls. PriorNo. 2--06--0144

-21-

to the sleepover, S .O. had discussed defendant's touching with N.E. a nd B.P. S.O. and her teammate s attende d defend ant's w edding . S.O. was

a close f riend of her tea mmates. The jury found defe

ndant not guilt y of penetra ting S.O. 's sex organ with

his fing er, but g

uilty of touching S.O.'s sexorgan for the purpose of sexual gr atification. It found defenda nt not guilty of penetrating S.O. with his tongue. 7. Complainant C.E. Defendant

was cha rged w ith two counts of predatory criminal sexual assault against C.E. for penetrating

h er sex organ

with his tongue and finger. He was c harged with agg

ravated criminal sexual abuse for touchin

g C.E.' s sex orga

n for the purpose o f sexual g

ratific ation. All three a cts allegedly occurred between November 6 a nd 8, 2002, in a preschool room. C.E. was the first child to publicly ac cuse defendant of inappropriate touching . At trial, C.E. testified that she began taking classes a t the gym whe

n she was four y

ears old. She left th e g ym when she was seven y

ears old. As to the charged conduct, C.E. testified that, in November 2002, she scraped her knee in the gym an d d ef

en da nt to ok he r i nt o a sm al le r r oo m o ff of th e m ai n g ym to get a

Band-Aid. The room
was a small kitchen with a microwave, a refrige

rator, and counters. Defendant took a Band-Aid from
a closet and then took C.E. into the house room (a preschool room that has a toy house inside). No
one e lse was in the house room. C.E. was wearing a leotar d. They went into the house, a nd C.E. sat down on the carpet. Defendant was in front of her. Defendant pulled the bottom of her leotard
over and used his f

inger t o touch he

r private s. She cou

ld not rec all if he used more than one finger. She felt defendant put his fi nger in the opening of her vagina. C.E. testified that, a fter defendant
re moved his finger, he used his mouth and put his tongue inside her vagina. C.E. tes tified tha tNo. 2--06--0144

-22-

defendant tried to pull down the top of her leotard, but she pulled it back up. Defendant then touche d her vaginal area with his fingers some more . After d efenda nt stopped , he hand

ed her the Band- Aid and she retu rned to th e gy

m. As they

were wa lking out of the hou se room, defenda nt told her not to tell anyone about the incide nt. C.E. testified to between

56 and 67 incidents of uncharged conduct. F irst, C.E. testified that defendant had previously touche d her the same way as during the " B and-Aid incident." He had t ouche d C.E. prima

rily inside he r vagina with his f

inger a nd tongue in some o f the smal ler rooms off of th e main g

ym, including

the music r

oom, the ho

use room, and the c astle room, and with h is finger: (1) in the

main gy m, behind mats; (2) when she was doing splits by a vault; and (3) in the f oam pit. C. E. testifi ed that de fendant shut and sometimes lo cked the doors to th e smaller

rooms when he took her in them and touched her. She re called b eing to uched once in the music room between January and June 2002 but could not recall if it ha ppened in the music room more than
once. At th at ti me , o th er gym nasts were chasing defenda nt to squirt him with a water bottle. He grabbed C.E. and ran into the music room with her and touched her b y a piano. The othe r girls, including Crystal Soloff, were banging on the door for a full 10 minutes while defendant touched C.E. She coul d not recall if it was with his hands or his mouth, but "it was probably [with both] because normal ly it's both." Oncross-examination, C.E. testified that, whenever defendant took

her to other rooms over the three-year-period, she would be in the middle of her gy mnastics class. At the time of the BandAid incident, C.E. had

severa l coache s, includi

ng Diane O'B rien, Justin

Hawk, Sandy Huston, and Liz
. Accordingly , defendant would approach whoever was coaching her at the time

and say, " I need [C.E.] fo r a se co nd ." Sp ec if ic al ly, C.E. recalled

defendant telling O'Brie

n that he needed to take C.E.No. 2--06--0144

-23-

for a second. She testif

ied that, when defendant took her into other rooms, she would be g one for app roximate ly

10 minutes. These incidents occurred while the rest of her group was doing gy mnastics. She knew what he was going to do, but did not say anything be cause she was not sure what to say and was sc ared. C.E. did not complain to anyone . She was asked, "Tha t went on fo r three years, a

nd during that time he took you out as many as 50, 60 times, could that be right?" She replied, "Could be, I'm not sure." Later, she agreed that it happened around 50 or 60 times. Regarding

other uncharged conduct, C.E. testified that de fendant sho wed her his penis on
one occasion and tried to touch his penis to her mouth by taking her head with his hands and pushing it down. She could not recall where shewas when she saw his penis, or when the event occurred.

C.E. testifie d to uncha

rged c onduct tha

t alleg edly

occurr ed at a gym slee pover. Close to 100 girls were present at the sleepover. The y we re sle eping a

ll over the

gy m, in forts

they made with mats. C.E. testified that, at the sleepover, defendant touched her in the vagina, in the gym be hind
a mat. In addition, C.E. testified that defendant ca me into her fo rt and touched her priv ates. Appare ntly , this touching

was pre viously undisclos ed and c ame out for the first time at trial. C.E. testified that she was in the fort with her friend, Crystal Soloff. Defendant came into the fort, got into C.E.'s sleeping bag with her, a nd touched her vagina

under her pa

jamas. She testified that neither she nor So loff was

asleep w hen this occurred. They

continued

talking, telling stories, and laughi ng. C.E. testified

that Soloff was looking at her and laughing and that defendant was laughing while he reached into her sleeping bag, pulled her pajamas aside, and put his hands on her vagina. After this occurred, they

went out of the fort and play ed in the gy

m.No. 2--06--0144

-24-

C.E. also testi fied to three incident s of uncha rged c onduct involving the foam pi t. The first touching in the pit allegedly occurre d at the sle epover, after d efenda nt touche d C.E. in the

fort. Sp ec if ic al ly, C.E. left the fort and went into the pit with her friends and defendant. There, de fendant made her hold his penis. Approximately five or six girls were in the pit while defendant touched her and made her hold his penis. The lights were on and about 100other girls continued to play in the other areas of the gy

m. Other coaches were also prese nt. In addition, C.E. testified that defendant behaved inappropriately in the pit on two othe r occasions. She testified that, on one occasion, defendant ag ain made her touch his penis with her hand. She was buried up to her shoulders in the pit; defendant was next to her in the

pit and wa s also somewhat

buried. H e took his p enis o ut of his sh orts, gr abbed he r hand, a nd put her

hand on hi s penis. On a

second occasion, also while buried in the foam pit, defendant touched his penis to her vagina. C.E. explai

ned that d efenda nt opened up the bott

om of her leotard , took his pe

nis out of h

is pants, and put his penis on her. Numerous other people were present in the gy m during these acts. C.E. testified that

once or twice when defendant touche d her, she would say , "I don't like that," but she did not say it every

time. Fi na ll y, with respect to uncharged conduct, C.E. testif

ied that, on the same day a s the BandAid incident , defend

ant touched her w

hile stretching her behind a mat. Cry stal Soloff was stretching next to her. About a week after the Band- Aid incident, C.E. had a sleepover at her house with some of her friends. She talked to

her friends about defendant touching he r, but she did not tell her friends everythi ng. That nig

ht, C.E. tol d

her mother that defendant assaulted her, but she did not provide detailsor tell her e very thing. C. E. said on

ly that defe

ndant touc

hed her p rivates w ith his finger andNo. 2--06--0144

-25-

tongue. C.E. told he

r mo ther that it happe ned all the time, too many times to count. After the sleepover, she did not return to the gy m again. A fewdays afte

r telling her mother, C.E. was twice inter viewe d by perso nnel a t the D u Page County Children's Center. She tried to tell them everything that she could remember. C.E. told them that it happened "a lo t." Of a

ll the peo ple she spoke to about the incident s, she fe lt most comf ortable talking with Dee Fisher, a counselor. At the time of trial, C.E. had met with Fisher every week for two years. She told Fisher that "i t happened al l the time ." The jury foun d defen dant n ot gui lty of pen etrat ing C.E.' s sex organ with his fin

ger or his tongue. Howeve

r, it foun d him guil

ty of touching C.E.'s sex organ for the purpose of sexual gratification. 8. Addition al Complai

nants Sevenother complainan

ts accus ed defe

ndant of i

nappropriate tou

chings s imilar to those described above. Specifically , defendant was charge d with: (1) touching B.H. on her sex organ sometime between February

1999 and 2001, inthe foam pit; (2) touching R.H.'s sex organ in 1999
or 2000 in the

foam pit ; (3) touching A.V.'s sex organ sometime in the summer of 2000, during wheel exercises, and sometime between January 2, 2002, and

June 2002, during straddle stretches
near a vault or duringwheel exerc ises; (4) to uchin g T.W. 's sex o rgan in Sept ember 2 002, d uring a stretchexercise near a vault, and on her brea st on a Wednesday in 2002, during wheel exercises; (5) touching K.G. on her sex organ in the summer of 2001, during stretch exercises on the spring floor; (6) touching A.W. 's sex organ sometime betwe en Septem ber 2001 and June 20 02, during straddle stretches near a mat; and (7) touching A.C.' s sex organ sometime between September 1 and 30, 2002,No. 2--06--0144

-26-

during a "planche" exerci se. These complainants testified at trial about the charge s as well as uncharged condu

ct. The ju

ry found de fendant

not guilt y of the char ges. 9. A.T.S. After the State concluded

its presentation of the complainants of charged conduct, the jury
was instructed that evidence would be presented that defendant was involved in another uncharged offense. It was instructed that such evidence would be received on the issues of defe ndant' s intent, absence of innocent mental state, and any matter to which it was relevant. "I t is for you to determine whether the defendant was involved in this offense[] and [,] if so, what weight

should be g

iven to this evid ence." A.T.S. testified that, at the time of trial, she was 10 y ears old. When she was five or six ye ars old, in a ppr oxim ate ly Ju l y 1 999, she to ok her fir st gy mnast ics c lass a

t Rush -Copl ey

Heal thplex. Defendant

was her coach. She liked h imand thoug

ht he was funny . On dire ct examina tion, A.T. S. stated that, on her last d ay of class , after stret ching, defendant grabbed her " private" over her clothes while assisting her with a cartwheel. He cupped her " private" in the middle of the cartwheel, and, when she was fini shed with t he cartwheel, h e said, "good jo b." I t felt like his hand cupped her private area. This occurred one time. Six or seven other clas smates we re pres ent. Afte

r class, A.T.S. told her mother about the incident. A.T.S. was not a sked abo

ut this incident

again u ntil three ye ars late r, in a December 26, 2002, interview. There, she said that she felt like she had been pinched. She also stated that she did not like defendant's hand on

her hip while he helped her with the cartwhee l. She agreed that her memory at trial of the incident was different from her memor y during the

2002 interview.No. 2--06--0144

-27-

Mary Marx testified thatshe worked at the Rush-Copley H ealthplex as an activities director. She ide ntifie d defendant as a tumbling coach at that fa cility from September 1998 to September 1999. Marx received a call in July 1999 fr om A.T.S.'s mother. As a result, Marx had a meeting with defendant and informed him that A.T.S.'s mother had c omplain ed that de fendant touched A .T.S. between her leg s. In

response , defend

ant was sh

ocked a nd "ver y c oncerne d, very

upset, an d just
ve ry, very conc erned. *** He said that he never intentiona

lly w ould touch

someone i

n their private area, that during a stretch or an exercise that it could have be en misinterpreted, hi s han d could of [ sic ] slipped." Defend

ant's de meanor d uring the conve

rsation w as "upse

t, very emotiona l. He was even a littl e teary eyed over it." Marx also met with her manager, A.T.S.'s mother, a nd defendant. Defendan

t aga in explained that he would never intentionally do a nything to up set or hurt a child, and he was very upset and concerned. He demonstrated methods for spotting the gy mnasts dur

ing cla ss and state d that, if h is hand brushed A.T.S. or

slipped, it might have been misinterpreted. As a result of her conversations with defendant and A.T.S.'s mother, Marx did not contact law enfor cement. She was contacted by law enforcement two y

ears later. The State rested its case. Defen dant's m o tion for a directed verdict was denied. The tria l court noted tha t defendant 's primary argument in his motion for a directed verdict was that the witnesses were so

lacking in credi bility that the charges must be dismissed. The court disagr eed, but noted that there was "certai nly impeachment of v arious wit nesses." B. Defe ndant' s Case 1. WitnessesNo. 2--06--0144

-28-

About100 witnesses testifie d on defe ndant' s behalf

. Some of their testi

mony is summarized as follows. Defend ant's first witn ess, A ndrea A rndt, was th e gym's office manager. Arndt testified about the gym' s activity level and lay out. She explained that parents often observed their children fr o m inside the gy

m, from the hallways lea ding to the gy

m, and from the par

king lot, looking inside throu gh a wall of windows. The music room had windows, a wall wi th an op ening that children could climb through, and two doors: one leading to the gym a nd the other to the hal lway . The hous e
roomhad four wind ows and thre e doors. The castle room had a window. Both the g ym and the hallway were bu sy a

reas. From 2001 to 2002, about 100 to 150 students, instructors, and others were present in th e g ym at any one time. The hal lway cont ained cubbyhol es for s torage o f the ch ildre n's personal belong ings, an

d parent s would congreg ate in the hallways bef ore, during, and

after practice. Video cameras were installed in 2003. Arndt testified

that she never saw defendant leave his coaching rotation. Arndt never saw any coaches send students to defendant. She never saw defenda nt stretch any g

irl behind a mat on the vault runway, nor

did she see a ma

t placed vertica lly a gainst a vault. She never saw defendant inappropriately

touch a st

udent. Several witnesses testified that the gy m was wide open, that one could view all of the children an d a ct iv it ie s i n t he gym from different areas, and that parents and others often watched the class es from the gym's doors and windows. Those witnesses included: parents Mary Ann Drafke, To nya Glock, Laura Clark, Sh ar on So lo ff , M ar il ynHeisler, Grace Carpenter, Russell Seed, and Judi Hefner; co ac he s M ic he ll e D ro zd an d W hi tn ey B al dw in ; a nd gym ow ner (and defendant's mother) Ly nda Ly nch.No. 2--06--0144

-29-

Several witnesse s, in addit ion to Arndt , test ified to th e high number of people present in the gy m each da

y a nd to the hi gh traf

fic are as in

the gy m, includin

g the ar eas nea r the "r esi mats" and the hallway

leading to the gy m from the

prescho ol rooms. T

hose witnesses included: coaches Diane Douville, Diane O 'Brie

n, Michae l Jenkins, Rus sell Millar d, and Jenn

ifer Rolla nd; pare nts Lid ia Stefani and Elaine Edgeworth; gy mnastics-coaching experts Thomas Jones and Paula Ann Noe; and gymna sts Marissa Woosner and Colleen Finegan. Various witnesses testified that def endant w as extreme ly

vocal and coached highly skilled students. Their execution of advanced, extremely dange rous tricks requir

ed him to c losely

supervis e and spot the g

ymnasts by

placing his hands on their chests, backs, upper legs, abdomens, and buttocks. Because defendant' s students were talented and he ha d a loud vo ice while

leading his team, he and his team were high profile within the gy m. Many people, including instructors Justin Hawk, Diane Douville, Dawn Doyc hak, and Michelle Drozd, parents Ma ry Ann Dra fke, Laura Clark, Deborah Zach, K at hy Horner , Marilyn Heisler, a nd Maria Wossner, and gy mnasts Rachel Heisler and Rachel Seed, o ften wat ched de fendant

and his stu

dents. Inaddition, witnesses testified that they observed defendant's behavior ove r the relevant

time period and that they neve

r witnessed defendant inappropriately touch anyone. Those

witnesses included: cheerleading prog ram director Dawn Doy

chak; coaches Diane Do

uville, Mic

hael Jenki ns, Ryan Kamy kowski, Justi

n Hawk, Sa

ndra Camp

bel l, and Whitney Baldwin; pare nts Sheila Gatto, Mary Ann D ra fke, Laura Clark, Ma rilyn Heisler, Russell Seed, Gra ce Carpenter, and Jeffrey Barnum; and gy

mnasts Ellen Daneluzzi, Ciana Carpenter, Bridget Conley, and Colleen Finegan. Coaches Diane O'Brien , Jus tin H awk, an d Rach el St rang agree d t ha t i t w as a s tr ic t g ym policy that gymna sts stayed within their gr oups. Each gy

mnast was required to be pai red up withNo. 2--06--0144

-30-

another team me mber. Coaches did not send girls from their groups to def endant. Witnesses testified that they never

saw defendant isolate a student in a private area of the gy

m. Those witnesses included: teachers Caroly n Rotunda, Sandra

Campbell, and

Sheila Gatto; parent Grace Carpenter; coaches Michael Jenkins, Justin Hawk, Traci Scardina, Kathleen Baldwin, and Russell Millard; and studentsChery

l Huston, Shannon O' Brie n, Chri stine Campanelli, Ellen Daneluzzi, and Bridget Co nl ey. In addition, witnesses who testified that they neve r saw defendant remove any girl from the main gym include d: Dawn Doyc hak, Sheila Gatto, Sandra Campell, Dawn Drozd, Brittany Gatto, Marilyn Heisler, A

rianna Zack, and Casey

and Shannon Feicco. I n 2000, def

endant coached an upper-leve l group of students. Although C.E. took classes at the same time defendant's team practic ed, defe

ndant wa s not her c oach. Ac cording to Arndt, on November

8, 2002, the date that defendant allegedly touched in the house

room w hile a pplying a Band-Aid, several te am pare nts were utilizing t

he castl e room to prepare for the a nnual home gymna stics competition. Dawn Doy chak tes tified tha

t she spen t a substantial period of time in the preschool rooms on November 6 and 8, 2002, and that she never saw de fendant in those rooms on those dates. Witnesses who testified that they neve r saw defendant remove C.E. from the g ym or her group in cluded: t eacher s and coa ches Rac hel Stran g, Sandr a Campbe ll, Trac i Scardina, Justin Hawk, Russell Millard, and Cheryl Huston; and g ymnasts Ky

lie Clark and Marissa Wossner. CoachMichael Jenkins testified that, on November 8, 2002, the dayof C.E.'s alleged BandAid incident , he saw a

nd heard C.E. and a

nother girl ask for a Ban d-Aid . He watched the gir ls accompany

defendant into the front officeto look for Band-Aids. Both girls returned to the gym two to three minutes later, followed by defendant almost immediately the reafter.No. 2--06--0144

-31-

Russell Millard, w

ho was t o coach

C.E. on Nov ember 8, 2002, test ified tha t, prior to coaching her at 5: 30 p.m., he

took seve

ral items into the pr

eschool r ooms in preparation for the upcoming weekend

competition. He testified that there were people in the ca stle room at all times and that he sa w Diane G

rosso in the house room. Millard returned to the main gy m, where he saw C.E. and Crystal Soloff. Defe ndant was near the bars, nowhere ne ar C.E. Crystal Soloff testified that she was C.E.'s friend. She recalled tha t, on November

8, 2002, prior to pract ice, C.E. felland injur

ed herse lf on her

hip while playing on the

bars with Soloff. C.E. informed defendant of the injury , and defendant told her to wash the wound in the bat hroom. Soloff went with C.E. to the bathroom, and C.E. washed her wound. Meanwhile, defendant searched f or
a Band-A id in the g

ym, by t he offic e, but was unable to find one. C.E. and Soloff followed defendant to the kitc

hen betw een the c astle and house ro oms. Soloff leaned a gain st the door and watch eddefendant take a Band-Aid from the cabinet and pla ce it on C.E.'s hip. Soloff was approxima

tely one foot away

from defendant and C.E. Defendant did not touc

h C.E. nea r her pr ivate
area. While standing in the kitc hen, Solof

f heard people ta lking in b oth the hou se and ca stle rooms
. Imme diately

after the Band-Aid was applied, S ol off and C.E. ran back to the gy m and began practi cing. Soloff did not recall C.E. going near a mat to do straddle stretches later that day , and she testified that she did not do st ra dd le st re tc he s b y a mat that day. Soloff did not reca ll any coac

h ever taking C.E. away

from the group in

the gy m to anothe

r location in the bui lding. Sh e did not r ecall defendant grabb ing C.E. a

nd bring ing her

into the mus ic room, b eing loc ked out of the music r

oom, or banging on the door to be let in. Soloff was presen

t at the s leepover where defendant a llegedly touched C.E. She recalled defendant peeking into their fort to tell them to go to sleep. Defendant was present for " like maybeNo. 2--06--0144

-32-

five seconds at the most." Afterwards, the lights we re turned off, a

nd C .E. and Soloff fell asleep. Soloff did notwitness any inappropr iate conduct. She never saw defendant in the foam pit with C.E. Inher yea rs at the g ym, Soloff n ever saw defendant touch any girl in a private area of her bo dy. Defendant was never her c oach, but she wa tched him "a lot" because

he was one of the b est coaches at the gy

m. Diane O'Brien

testifie d that, from the summer of 2002 through November 2002, she coa ched C.E. Defendant never coache d C.E. I n addition to the gy m's stric t rule that gy

mnasts must

stay with their own coaches, O'Brien ha d "Diane's Rule, " a r

ule that her students could not ever leave her group without her permission. When asked whether defe ndant ever

took any g

irl out of her

class, O'Brien responded "absolutely

not." No coaches ever took girls out of her class. Defe ndant never took C.E. out of

the gy m. O'B rien nev er saw d

efenda nt leave his grou ps of gy mnasts, ta ke girl s out of his groups, or take girls out of the g ym. Inthe State's case-in-chief, a student name d A.W. had testified that she saw defendant take C.E. out of O'Brien's g

roup on three occasions, that she once asked O'Brien where defendant went with C.E., and

th at O 'Br

ien sa id tha t she d id not know . I n res ponse , O' Brie

n test ifie d tha t A.W.
never came to her and asked about defenda nt taking C.E. out of class. She reiterated that C.E. was never ta ken from her cla ss. Inlate October 2002, coach Justin Hawk witnessed def endan t appl ying Icy Hot to S. O.'s hamst ring. Hawk stood two to three feet away from defendant and had a co n versatio n with defendant while defendant applied t he I cy Hot. Haw

k could se e defen

dant's hands at a

ll times. Defend ant's hand never went underneath S.O.'s leota rd; his hand was about

five inches away

from her leotard, closer to S.O.'s knee. Hawk recalled that Liz was standing on the floor and that anotherNo. 2--06--0144

-33-

coach, Michelle Drozd, wa s nearb y ge tting a springboard. Hawk testified that the episode lasted about 11⁄2 to 2 minutes. After 10 to 20 seconds, S.O. returned to her group. Michelle Drozd rec all ed seeing de fendant applying Icy Hot to an injured gy

mnast's hamstring while Justin Hawk, Liz, and others looked on. Drozd could not discern who the gymna st was--she
was lying on top of a ma

t--but testified

that d efenda nt's fingers never came ne ar the gy mnast's crotch. The gy mnast got up and rejoined her group. Liz Cardamone testified that she witnessed A.S. push defendant into the pit on one occasion. Defendant

grabb ed A.S. to brace hi

mself, an d they both fell into the pit. In an effort to ge tout of the pit, defenda

nt pushed a

gainst A .S., and A .S. bit

him. Liz testified that she was standing at the edge of the pit an d c ou ld se e d ef

en da nt 's en ti re bo dy, including his hands. The incident lasted about 20 seconds, and there was no inappropriate conta ct. Gy mnast Brittany Ga

tto testified that she attended B.P.'s sleepover on November 23, 2002. S.O., S.H., A.S., and N.E. were a lso prese nt. B.P. told the group that C.E. had alleged that defe ndant had inappropriately

touched he r. According to Gatto, many complainants, including N.E., S.O., A.S., and B.P., stated that C.E.'s allegations were untrue. Gymnast Colleen Finegan was also present at B.P.'s sleepover . She testified that the attendees discussed C.E. and defendant for less than 20 minutes. Afterwards, "ever yone went back to norm al." 2. Defendant's Testimony Defendant took

the stand in his own defense. He denied all the allega tions of charged and uncharged condu

ct. Inaddition, defendant testified that, around 1996 or 1997, he b egan tr aining c omplaina

nts N.E., S.H., S.O., B.P., and A.S. About six years later, in the spring of 2002, defendant

received aNo. 2--06--0144

-34-

scrapbook

from the girls, thanking him and praising him asa coach. A few months later, defendant split the girls into different training gr oups due to different skill levels. Some of the girls, including S.O., B.P., and A.S., became uncooperative. S.H. had left the g ym in the sprin g of 200 2, and A.S
. and another complainant, A.C., quit the gy m in the fall of 2002. Defendant

testifie d that, on one occa sion, A.S. p ushed him i

nto the pit, they

both fell in, and she bit him on the

way out. He ne

ver inap propria tely touched h er. Def

endant a pplied I cy Hot to S.O. 's leg on the vault runway , at her re qu es t. He de ni ed to uc hi ng he r i na pp ro pr ia te ly, and he denied ever speaking to S.O. about his alleged touching of S.H. D efend ant

denied do ing whe el exerc ises with the girls , taking girls fr om their g

roups to st retch them, or taking girls behind the mats near the vault ar ea. Specifically , he testified that hi s gy mnasts were highly

skilled an

d did not ne ed his assistanc e with the wheel exercise, which wa s a strengthening

exercise . He expla

ined that to assist th em in per

formin g the

exe rcise would have defeated the purpose of the drill. Defendant testified that he would occa sionally al ign a student during wheel exercises by adjusting her shoulders or tapping her stomach. Defendant testified that, while coaching a student on an event, he did not leave hi s gr ou p t o s tr et ch an ot he r g ir l. Typ ic al ly, flexibility w as conducted at

the end of

practic e and wa s run by

Liz; de fendant

would ass ist with flexibility only

if Liz requested his help. Defendant

never c oached

C.E. He di d assist he

r with a skill on one occasion, with her father watch ing. After hi s assistan ce, C.E.' s mother r

equeste d that def

endant pr ovide C.E. wit

h private lessons, which he declined because he was not her coach. Approximately one week

later, C.E. cut her hip. Defendant told her to wash the cut in the bathr oom. C.E. and Soloff returned from the bathroomand told defendant that C.E. was still bleeding. Defendant went to the kitchen to retrieveNo. 2--06--0144

-35-

a Band-Aid; C.E. and Soloff followed him to the kitchen. Defend ant pl aced th e Band- Aid on C.E. 's hip while Soloff watched from the doorway. The hallway outside the

kitchen d oor was b usy with parents and pres c hool children. After the Band-Aid was a pplied, C.E. and Soloff returned to the gym. Defendant

rec alled a s le epover a

t the gy m prior to C .E.'s in

jury . Severa

l girls a nd paren ts
were present, and defendant slept next to coach Justin Hawk, in a hammock hung from the ceiling rafters. Defend

ant rec alled g oing fr

om fort to f

ort, instr ucting t he girl s to be quiet or

to go to sleep, buttestifie d that he never en tered th e forts. He denied ever touching or violating C.E. in November 2002 or on any other

occasion. As to A.T.S., the student from the Rush-Copley Hea lthplex, defendant denied ever touching her inappropriately. H e agreed that he taught a few classes at Rush, but testified that he did not teach there or receive pay

after April 1999.

C. Verdict and Sentence The jury deliber ated for three da ys. Of the 26counts charged , the jury found de fendant

guilty of 9 counts of aggravated c riminal sexual abuse against 7 of the 14 girls . The trial court denied defenda nt's post trial motions and sen

tenced h im to 20 y

ears'imprisonme

nt. Defe ndant app eals. III. AN ALYS IS A. Other-Crimes Evidence Before trial, the State moved in limi ne to adm it other-crimes evidence pursuant to section 115--7.3 of the Code of Criminal Procedure of 1963 (Code) (7 25 IL CS 5/115--7.3 (West 2002)). The trial cou

rt exclude d some of t

he State' s reques ted evide nce, na mely , in cident s that alle gedly occurred with persons other than

the complainants or outside of a gy mnastics setti ng ( e.g. , regardingNo. 2--06--0144

-36-

defend ant's stepsister). The trial court granted the motion as to the uncha rged c onduct al leged by the complainants and A.T.S. Defendant argue s that the trial court abused its discretion and contends that: (1) the State's notice of the other crim es was deficient under section 115--7.3(d) of the Code (725 IL CS 5/115--7.3(d) (West 2002)); (2) the evidencewas impro perly elicited by t he State a t trial, where it offered no specific information concerning the other crimes; and ( 3) the probative value was outweighed

by the unfair p

rejudic e, juror

confusion, and de lay . Althoug h defend ant pres ents thes e as his fourth and fifth arguments on appeal, we address them first. A trial court 's decision to admit other-crimes evidence will not be reverse d unless the court abused its discretion. People v. Donoho , 204 Ill. 2d 159, 182 (2003). We will find that the tria l court abused its discretion if the court's determination is unreasonable, a rbitrary, or

fanciful, or if no reasonable person would adopt the trial court' s view. Donoho , 204 Ill. 2d at 182. Section115--7.3 of the Code provides that, when a defendant is accused of predatory criminal sexual assault of a child or aggravat ed crim inal s exua l abus e, evi dence o f the d efenda nt's commission of anothe

r such of fense " may

be admiss ible (if t

hat evid ence is otherwis e admissib le under the rules of

evi dence)and may

be consid

ered for its bear

ing on a ny matter to w

hich it is relevant." 725 IL CS 5/115--7.3(a)(1), (b) (West 2002). Here, defendant was charge d with predatory criminal sexual assault of a child and aggrava ted criminal sexual abuse; both are offenses to which section115--7.3 applies. Further, as required by the statute, the evidence of uncharged conduct that was admitted involved additional acts of the same offenses. Where the other

-crimes evidenc e meets the prelimi nary statutory require ments, it is admissible

if (1) it is releva nt; and (2 ) its proba

tive value is not out

weighe d by

its prejudic ial effe ct. Donoho , 204 Ill. 2d at 177-78. Admission of the evidence is not mandatory , even when the statutoryNo. 2--06--0144

-37-

require ments are satisfied. Donoho , 204 Ill. 2d at 180-81. The admission of other-crimes evidence should be limited. See Pe op le v. Bo yd , 366 Ill. App. 3d 84, 95 (2006) (other-c rimes evidence must notbecome a

focal po int of the t

rial, and the deta

il and re petition a dmitted mus t be narr

ow so as to avoid the danger of a trial within a trial). As to relevance, the trial court found that the uncharged conduc t was relevant to the issues of defendant's intent, absence of a n innocent mental state, a nd course of condu ct to cor roborat e the victims' testimony conce

rning the charged off

enses. We agree that the e vidence was rele vant, altho ugh perhaps not for the reasons stated by the trial court. For example, the trial court determined that the evide nce was releva nt and pro

bative to intentand innocent state of mind, noting that some gy mnastic s coaches might testify at trial regarding "how certain situations are handled." H owever, defen da nt argues that his intent and innocent state of mind were not at issue because he did not assert in defense, for example, that the incident s happened

but were accidental or were misconstrue d. Rather, he flatly de nied that he ever touched any of the girls in the manners alleged. When state of mind is not at issue because a defendant claims that the alleged events did not occur, admission o f other- crim es evidence for purposes of establishing intent is inappropriate. See, e.g. , Peopl e v. St anbri dge , 348 I ll. App. 3d 351, 356 (2004) ("[p]roving the absence of a mistake is nec essary whe re the defendant's phy

sical actions
are undispute d but his sta te of mind isat issue" ); People v. Woltz , 228 Ill. App. 3d 670, 674 (1992) (admitting other-crimes evidence to s how absenc e of mistake was erroneous where the de fendant did not claim accident but, instead, completely denied placing his finger in the victim's va gina). Alth ough some cas es have held that o ther-crimes evi dence is releva nt in a sexua

l assault or abusecase to demons trat e the defendant's lack of an innoc ent state of mind, they have noted thatNo. 2--06--0144

-38-

other -crimes evidence is treated differently in cases involving children and where the e vidence i s presented in a bench

trial. See, e.g. , People v. Deenad ayalu , 331 Ill. App. 3d 442, 448 (2002) (citing cases). Thus, where defendant was char ged with acts against children, wa s tried before a jury, and argued that the events never occurred, intent wasan inappropriate basis for admission of the othercrimes evidence. A s to course o f conduct, the State cites People v. Johnson , 296 Ill. App. 3d 53, 63 (1998), for the "well-established principle that evidence of a defendant's prior sexual activity with the same child is admissible to prove a course of cond uct an d to c orro

bora te the victi m's t estimony ." We agreethat a singl e girl's testimony as to a single a ct of misconduct could paint an inaccurate picture of a defen dant's c onduct as

to that g irl. Here, h owever , the jury heard 14 complainants disc

uss relative ly similar a cts of charged misconduct. Thus, testimony by the 14 girls regarding

the charges alone could hav e suffic iently outl ined d efenda nt's cours e of con duct a nd cor robor ated ea ch oth er's testimony, without the risk of undue prejudice. Inany eve

nt, the Donoho court, relying on the statute's legislative history , held that section 115--7.3 of the Code permits the admission of other-crimes evidence for the purpose of showi ng a defend ant's propensity to commit a sexual offense. Donoho , 204 Ill. 2d at 176. Although the trial court here did not explicitly rely on that basis in ruling, the State, in its motion, sought to introduce other-crimes evidenc e, in part, to prove defendant's propensity to commit a sexual offense. Therefore, although we disagree with the trial court's ar ticulated bases of relevance, we c onclude that the evidence was relevant to defenda nt's propensity to commit the cha rged offenses. Thus, the central is sue is whether the trial court abused its discretion by finding that the probative nature of the ev idence was not outw eighed by i ts prejud icial ef fect. Section 115--7.3 (c)No. 2--06--0144

-39-

of the Code provides that, in weighing probative value a gainst prejudicial effect, a cour t may consider: "(1) the pr oxim ity in time to the charg ed or predicate offense; (2) the de gree of factual similarity to the charged or predicate offense; or (3) othe r relev ant facts and circumstances." 725 IL CS 5/115--7.3(c) (West 2002). The supreme court ha s stated that, in con sidering the admiss ibility of other-crimes evidence under the s tatute, "we urge trial judges to be cautious in considering the admissibil ity

of other-crimes evidence to show propensity by

engaging in a mea

ningful assessment of the probat ive value versus the prejudi cial impact of the eviden ce." Donoho , 204 Ill. 2d at 186.

Here, the va st maj ority of t he St ate's case consisted of other-crimes evidence. The witnesses testified not

only to the 26 acts char

ged, but to hundreds of uncharged acts. If our calculations ar e
correct, it appears that the seven complainants upon whose allega tions defendant was convicted testified that defendant committed between 158 and 2 57 uncharged acts. The cha rt below summarize s those complainan ts' testi mony regar ding unc harge d conduc t: WITNESS UNCHARGED CONDUCT NUMBER OF TIMES A.P. Penetra

ted whi le stretc

hing n ear va ult 40 to 5 0 tim es (on d irect) 100 times (on c

ross) A.S. Penetra

ted whi le stretc

hing n ear va ult Penetrated during w

heel exercises Touched breast i

n pit 2 to 10 times 5 to 15 times 5 to 10 times In total, tou

ched inappropr

iately 30 times, penetra

ted vagina 2 0 times B.P. Touched breast during arch stretch

Touched vagina 7 to 10 times 10 timesNo. 2--06--0144

-40-

S.H. Touched in pit

Penetrated while m

assaging ham

string Touched vagina during stretch Touched vagina during wheel exerc ises Touched vagina during press handsta nds 1 tim e (adde d two or three m ore times on cross) 2 times
1 or 2 times 2 times 1 time In total, touched vaginal are a not more than 10 times. Of tho se, penetrated 3 times. N.E. Penetrated during strad dle stretch Touched during whe el exercises 1 time 2 or 3 times In total: I n 2002, said happen

ed maybe 10 times. In 2003, said happened about once pe r week , but not eve

ry week. At trial, said once a week or once a month from Decem ber 2000 to Augu st 2002. S.O. Penetrated during stretch

Touched vaginal area and rubbed body during sleepover Touched during whe el exercises Touched in the castle room 20 times 1 time
1 time 1 time In total, estim

ated touched maybe 4 times prior to charged inciden t.No. 2--06--0144

-41-

C.E. Penetra

ted va gina w ith fing er and t

ongue in rooms off of main gym Tried to t ouch pe nis to m outh Made her touch p enis in pit Touched penis to

vag ina in p it Touch ed vagina behind mat in gym Touched vagina during sleepov er in tent Touched vagina while stretching behin d a mat (same day, but after, Ban

d-A id incid

ent) 50 to 60 times

1 time 1 or 2 times 1 time 1 time 1 time 1 time
TOTAL : 158 t o 257 i nciden ts of uncharged conduct
The foregoing

are conservative estimates, as we ig nored the figures summarizing the complainants' testimony on direct or cross-examination. M oreover , and impor tantly , this cha

rt does notinclude either the uncharged incidents testified to by the seven other complainants or any of the testimony from A.T.S., whose entire testimony c onsisted of uncharged conduct. Inweighing the probative value against the prejudicial effect, the trial court found that: (1) the allege d other crimes we re proxima

te to the c

harge d crimes b ecause

all all egedly

oc curred between 1999 and 2002; and (2) the acts were fac tually similar in that they

involved sexual touches of you ng gy mnastics s tudents a

nd, acc ording t

o the State , would

be further examples of the "exact
s ame conduct" charg ed. The c ourt ack nowledg ed that " [c]ertain ly there is pr

ejudicia l e ffect," but it noted that the evidence was probative and rele vant and that an inac cur ate pi cture o f defen dant's
course of conduct might be portray ed if the complainants were to te st if y only to the charg ed incidents.No. 2--06--0144

-42-

In assessing whethe

r the trial court' s determi

nation wa s errone ous, we no te that section 115-- 7.3(c)(3) of the Code states that, in weighing probative value a gainst prejudice, the co urt may consider "other relevant facts and

circumstances." 725 IL CS 5/115--7.3(c)(3) (West 2002). The trial court here explicitly

consider ed the fi rst two statutory factors in the probative/prejudice analysis-- proximity an d f ac tu al si mi la ri ty- -b ut di d n ot ex pl ic it ly ad dress the "other relevant facts and circumst ances" prong. We believe that there are several facts and circ umstances that weighed ag ainst admission. For example, unlike a case where the trial court mig ht admit other-c rime s evidence as it pertains to 1 or even 2 victims, the court here found admissible numerous acts alleged by 15 victims. In the face of so many allegations of misconduct, the re was a great risk that the jury could find that defendant

must have done something , or that it could find defendant guilty bey

ond
a reasonable doubt not of the charges but, instead, of uncharged acts. See Bo yd , 366 Ill. App. 3d at 94 (" 'unfair prejudice'

'speaks to the capacity

of some concededly

relevant evidencet o lure the factfinder into decl aring g

uilt on a g

round dif ferent from p roo f specific to the offense charg ed' "), quoting Old Chief v. United States , 519 U.S. 1 72, 180, 13 6 L. E d. 2d 574, 5 88, 117 S. Ct. 644, 650 (1997). Indeed, defe

ndant argues that this is exactly what the jury did, given i ts rej ectio n of a l arge part of the State's case ( i.e. , no convictions as to seven complainants and no predatory sexual ass ault
conv ictions). S imilarly, there is a strong possibility that the evidence could have led to juror confusionand that

the jury could have

used one complainant's credible testimony about uncharged conduct to bolster weak testimony by another complainant concerning the a ctual charges. Other facts and circumstances that weig hed against admission include defend ant's ability to defend himself, the acts raised for the first time at trial, an d the abil ity

of the jury instruction to cure undue prejudice. First, as to defendant's a bility to defend

himself, admission of so many alleg ationsNo. 2--06--0144

2 Under the common law, evidence of other crimes is not admissible to showpropensity, but is admi ss ible if relevant to other, specified exceptions, such as motive, modus operandi , etc. See Donoho , 204 Ill. 2d a

t 170. Nevertheless, even under common-law principles, other -crimes evidence that meets one of the exceptions is inadmissib le if the prejudic ial effe ct of the evidenc e substan

tially outweighs its probative value. Donoho , 204 Ill. 2d at 170. -43- of uncharged conduct, many of which were vague a s to dat es, plac ed defe ndant in th e impossibl e position of accounting for his whereabouts a nd behavior almost all day, e very day, over a

three-year period. Second, it appears that some of these uncharg ed acts, such as defendant's conduc tin C. E.'s fort during t he sleep over, we

re raise d for the

first time at t rial. Finally, we

question whether the court 's limiting in struction prior to the testimon

y w as suffic ient to protect defenda nt agai nst undue prejudice. "[F]aith i

n the jury to follow instructions and *** separate issues is 'the cornerstone of the jury system.' " People v. Johnson , 239 Ill. App. 3d 1064, 1075 (1992 ), quo ting People v. Illgen , 145 Ill. 2 d 353, 376 ( 1991). However, "[w]hen th e unfair prejudic e is exces s ive, a limi ting instructi on will no t save admis sibilit y of the evidence." Bo yd , 366 Ill. App. 3d at 94. Case law is s o mewhat in structive . Never theless, it remain s unclea r how much propen sity evidence is allowed under section 115--7.3 of

the Code, as none of the cases we have f ound involve the number of victims or the magnitude of other-crimes e vidence that is present here. Peoplev. Funches , 59 I ll . App. 3d 71, 7 3-74 (197 8), involv ed a car theft. Th

is court, applying common-law o ther-c rimes pri nciples, 2 reversed and remanded for a new trial where we found that excessive other-crimes evidence had bee nadmitted. Preliminarily, we stated, " we believe the circumstances presented here a re classic examples of p rosecut o rial overki ll." Funches , 59 I ll. App. 3d at

73. We note d the def

erentia l standar d of revi ew, but c oncluded that the tr

ial cour t:No. 2--06--0144

-44-

"abused its discretion in admitting extensive evidence concerning the def end ant's par ticipation in numerous car the fts which , althoug h releva nt and mat

erial to e stabli sh th e defendant's intent and modus operandi , was highly pre judicial against the defendant in the minds of the jury. [Citation.] We further find that '[w]hat occurre d here was violative of the notion of a fai

r trial' and '[t]he pre judice to the defe ndant wa s grave

and inexcu sable,'

because of the probable impact

of this evidence on the jury . [Citation.] T herefore, it wa s rever sible
error for the tr ial cour t to allow the State to introduce the testimony of seven witnesse s whose
cars were stolen in Chicago, the testimony of four individua

ls who pur

chased c ars in Rockford from the d

efenda nt--whic h cars su bsequen tly t urned ou t to be st olen, an d the testimony of Lamont Jacobs concerning the defendant's important role inother Chicago-toRockford car thefts." (Emphasis in original.) Funches , 59 Ill. App. 3d at 73-74. We also note d that some

refer ences to other, si milar ca r theftswould be p ermissibl e on remand, but that each case differs on its own facts a nd that no specif ic number could become a

n "all-a pplicabl e generality ." Funches , 59 Ill. App. 3d at 74. Nevertheless, evidence of at least seve n other car

thefts
was more pre

judicial t han prob ative be cause the "cumu lative ef fect of the other crimes [wa s] highly prejudicial ." Funches , 59 Ill. App. 3d at 74. In Stan bridge , the court reversed a jury verdict and remanded for a new tria l after concluding that the trial court erred in admitting eviden ce of a pr ior conviction and two uncharged offe nses under section 115--7.3 of the Code. Stan bridge , 348 Ill. App. 3d at 358. There, the court held that the trial court's two articulated bases for a dmission-- modus operandi and absence of mistake--were inapplic able to the facts of the case and that the evidence was unduly

prejudic ial, par

ticularl y given that it was admitted as part of the State's case-in-chief instead of as a response to evidence prese ntedNo. 2--06--0144

-45-

by the defendant. Stan bridge , 348 Ill. App. 3d at 355-56, 358. The court noted that, "[w]here the determination

of a defendant's guilt or innoce nce depends on the credibility of the de fendant and the accuser, error is particularl y likely to be prejudicial ." Stan bridge , 348 Ill. App. 3d at 358. The introduc tion of evidence o f other c rimes wa s upheld

in People v. Wilson , 214 Ill. 2d 127, 139 (2005). T

here, ou r supreme court a

ffirmed the admiss ion of

other-crimes evidence from two witnesses who testified that the defendant's conduct toward the m was similar to the conduct in the two charged sexual abuse offenses. The two charges were that the de fendant knowingly touched two complainants' breasts for the purpose of sexual gratification. At trial, in a ddition totestifying to the charg es, one complainant testified that the defendant had also touched her on 10 prior oc casions and the other testifie d that he t

ouched h er on 15 prior occ asions. I t appears that the a

dmissibility

of this testimony wa s n ot ch al le ng ed . In st ea d, th e d ef en da nt ob je ct ed to th e t es ti mo ny o f t he two other witnesse s, arguing that it was prejudicial and irrelevant to his intent because he denied touching the complainants sexu ally. The court , appl ying common-law other-crimes principle s, held that admitting the testimony

as rele vant to defenda

nt's inte nt was ap propria te beca use the de fendant

tried toplace
aninnocent

construc tion on his a

cts by describ ing himse lf

as "touchy-feely ," stating that it was not
uncommonfor him to touch someone's shoulder, waist, or back, with no sex ual conno tati on, and assertingthat his ac

tions may have be en "misin

te rpreted." Wilson , 214 Ill. 2d at 139. The court contrasted

those fa cts with ot her cases where "no re asonable jury c ould have believed that the charged even t s happened acci dentally or uninte ntionally ," name ly, where one defe ndant all egedly inserted his fi nger in to th e vict im's vagina and another accosted a student in his office. Wilson , 214 Ill. 2d at 1 38, ci ting People v. Bobo , 278 I ll. App. 3d 130 (1996), and Woltz , 228 Ill. App. 3d 670.No. 2--06--0144

3 We note that the prejudicial effect also substantia lly outweighed the probative value, if such
a s ta nd ar d w er e t o a pp ly. -46- The foregoing

cases instruct that

a large volume may

make probative other-crimes evidence overl y prejudicial. Certainly, the ma gnitude of other-crimes evidence was determinative in Funches , and the magnitu

de of evi dence a

dmitted he

re is even greater. The de cision in Stan bridge is relevant because the court there found t

he other- crimes evidence to be overly prejudicial where it was presented in the State 's case -in-chie f, as it was here. In Wilson , where the other-crimes evidence was
u pheld as ad missible, the key factor in the court's analy sis was the defendant's attempt to put an innocent construction on his actions. Here, however, defenda nt argued that the alleged

events never happened. Moreover, the magnitude of evidence admi tted in Wilson , even including the complainants' testimony re garding uncharg ed touching, was far less than that admitted here
. We believe that the trial court abused its discretion here, as no reasonable person

would find that the probative value of the other-c rimes evi dence w as not outw eighed by i ts prejud icial ef fect. 3 As the State conceded

at oral argument, section 115--7.3 anticipates a point where probative value may be outweig

hed by prejudice . The trial court noted that the evidence was prejudicial, but then found that it was probative an d admissi ble withou t conducti ng a "m eanin gful assessment of the probative value v ersus the prej udicial impact of the evidence." See Donoho , 204 Ill. 2d at 178. Cl ea rl y, some of the evidence was admissible and it is difficult to determine precisely where to draw the line. Nevertheless, we believe that the probative

value of the evide nce her e--namely , to estab lish propensi ty or even course of conduct to corroborate testimony --could have easily been e stablished by the 14 complainants' testify ing to the charges and perhaps a fe w instanc es of unc

harge d conduc t. Inste ad, the vo lume of the other-crimes evidence was ove rwhelming and undoubtedly moreNo. 2--06--0144

-47-

prejudicial than probative. See Stan bridge , 348 Ill. App. 3d at 358 ( "[w]here the determination of
a defendant's guilt or innocence depends on the cr

edibility of the de fendant

and the a ccuser , error

is particularly likely

to be prejudicial"). Becau se we agree that the evidenc e was more prejudicialthan prob ative, we need not a

ddress defend ant's alterna

tive arg uments tha

t: (1) the State's pretrial notice of the uncha rged conduct

was deficient because the acts describ ed in the n

otice we re diffe rent from the acts

testifie d to at tria

l; and (2) although section 115--7.3(e) requires tha t proof of the other crimes be made by "spe cifi c instances of conduct," the complainants testified to numerous acts of uncha rg ed conduct with virtually no specificity re garding dates or circ umstances. Nevertheless, we consider as c ontributing factors to the prejudicial nature of the evidence the vag ueness of the ev idence, the difference between the number of instances disclosed pretrial and the number testified to at trial, and the incidents that arose for the first time at trial. B. Unanimity I

nstruction Defendant

next arg ues that the trial

c ourt abused its discretion in rejecting his proposed unanimity

instruc tion, whic h instruc ted the ju ry that it had

to unanimo

usly find def endant g uilty beyond a reasonable doubt as to each char ged act. As a result, he contends that there was a risk that he was subjected to nonunanimous verdicts. "The decision to give or re fuse a non-Illinois Pattern Jury Instr uction *** is with in the sou nd discreti on of the tri al court." People v. Edwards , 337 I ll. App. 3d 912, 926 (2002). Defendant's proposed unanimity instruction stated: "Defendant

is accused of having committed the crimes of pre datory cr iminal sexual assault of a child, aggrava ted criminal sexual abuse and battery
.No. 2--06--0144

-48- Inorder to

find the d

efenda nt guilty , it is nece ssary for the

prosecution to prove beyond a reasonable doubt the commission of the specific act constituting that

crime within the period alleged
. You must unanimously agre e upon the commission of the same specific act constituting the crime within the period alleged ." (Emphasis added.) Defendant

asserts that, where the majority of the State' s case consisted of other-crimes evidence , an instruction that told the jury that it must unan

imously find def endant' s guilt a s to each

crime charged
was warranted. Hecontends that the f ailure to so instruct the jury

, inlight of the voluminous othercrimes evidenc e, subjec

ted him to the possibili

ty o f nonuna

nimous ver

dicts o n the charges . See Peoplev. Causey , 341 Ill. App. 3d 759, 770 (2003) (jury mus t be un animo us regar ding a d efenda nt's guilt or innoce nce of the crime

charged). I

n light of our

conclusion regarding the other -crimes issue, we agree. The trial cou

rt found t hat People v. Harper , 251 Ill. App. 3d 801 (1993), mandated expulsion of defendant's proposed

instruction. In Harper , the defendant was charge d with sexually penetrating the victim by

inserting his penisinto her vagina. A stateme nt made by

the defe ndant tha t the victi m had engaged in oral sex with him before she climbed on top of him and engaged in intercourse was admitted as other-crimes evidence. The defendant complained that thejury verdict mig ht not have been unanimous because of the other-c rimes evi dence, that the c harge agains t him speci fically alleged vaginal intercourse, and

that some of the jurors might have voted to convict based on vaginal interco urse while others might have voted based upon the evidence of oral sex. The appellate court rejected the defendant's argument that the State had to prove the specific form of penetra tion alleged inthe information and that the jury had to una

nimously fin d hi m gu il ty of

th at s pec ifi c co ndu ct. It held that the jury could have

convicted the defendant of penetration base d on either act. Harper , 251No. 2--06--0144

-49-

Ill. App. 3d at 806. However, the c ourt noted that the o ther cr

ime was no t remote i

ntime or place fromthe charged act, b ut was part "of t he same inter twined seri es of events. " Harper , 251 Ill. App. 3d at 805. Thus, while the jury did nothave to be unanimous regarding the theory of

penetration or
as to h ow t he penetration oc curred , it did have to unanimously conclude that the defendant committed an act of penetration during the char ged act. Harper , 251 Ill. App. 3d at 807-08. Here, the facts are distinguishable. To the extent that the State had alternative theories for what occurr ed during the char ged acts, it formally

charg ed defe

ndant in sep ara te c oun ts . In contras t, the other crimes allegedly occurred not during the charged act s but, rather, on different day s, and they constituted completely different acts from those charg ed. At oral ar gument, the State

agree d that the

majority of its cas e consist

e d of oth er-crimes evidence. Howev er, it argued t hat de fendan t's un animi ty instr uctio n, alt hough not lega lly incorre ct,
was unnece ssary

because it was supe rfluous. We disagree. The jury received separate instructions for each complainant and

for each crime pertaining to that c omplainant, and it received a unanimous verdict form for each charge. Nevertheless, wh ile the ins tructions

set forth the elements of the charges and the g e neral in struction that the jury had to find the e lements of each crime bey ond a
reasona ble doubt, the

instructi ons did

not, for example, provide any dates of conduct or a description of the condu

ct char ged suc h that it wa s clear

that the ju

ry had to una

nimously find that a

ll elemen ts
were proved re gardin g charged allegations. We do not hold that specificity regarding dates or a descriptionof

the cond uct w as re quire d. Bu

t the f act r emai ns tha t ther e was nothi ng to emph asize that the jury had

to be unanimous regarding the charges only , and defendant's instruction would have provided an additional safeguard

to that effect. In other

words, where the major

ity o f the State 's case involved uncharged offe

nses that allege dly occurr ed in the s ame time f

rameas the char

ged of fenses,No. 2--06--0144

-50-

a separate instruction that the jury had to be unanimous regarding the charges was warranted. We do not agree that

the trial court's limiting instruction regarding other crimes, given during trial and at the closeof trial, adequately addressed the issue. The limiting instruction informed the jury that the oth er -crimes evidence could be considered a s to defendant's intent, to corroborate the complainants' testimony, or for any other pur

pose deemed relevant . This instr uction did not addre ss t he fact that the jury

had to reach a unanimous decision on the charg es. As a result, one or more jurors c ould have

convicte d defend

ant of oth er crime s introduc ed at tria l. Dependingupon how much, if any, other -crimes evidence is admitted on remand, this issue might not arise again. Moreover, we do not hold t hat this ty

pe of inst ruction is warran ted in all
cases. Here, however, we find that, under the facts of this case, the re fusal to provide the instruction
was error in light of the vol ume of oth er-cr

imes evide

nce, the gener al natur e of the j ury

instructi ons, and the failure of the other-crimes instruction to addre ss the issue. C. Exclusion of Expert Testimony Defendant

next contends that the trial court abused its discretion in excluding testimony fr om his proposed expert witnesses, psycholog ists Charles Brainerd, Ph.D., and Mary Ly ndia Huffman, Ph.D. Specifically, def

endant argues that the court err ed in concluding that the te stimony would have vio lated the

jury's exclus ive role

in making

credibi lity

determinations. He

contends that th e t estimony was relevant and highly

probative regarding the r

eliability of the complain

ants' accusation s and that the exclusion constitutes reversible error. Trial judges are give n broa d dis creti on whe n dete rmini ng the admis sibility of expert testimony. People v. Enis , 139 Ill. 2d 264, 290 (1990). Generally , an individual may testify as an expertif his or her

qualif ications display knowledg e that is not common to laypersons and if theNo. 2--06--0144

-51-

testimony will aid the trier of fact in rea ching its con clusion. Enis , 139 Ill. 2d at 288. An expert witness ma

y pr ovide an o

pinion on the ultimate

issue in a case. People v. Terrel l , 185 Ill. 2d 467, 496 (1998). The test is whether the opinion will assist the trier of fact to understand the evidence
or to determine a

fact in is sue. "[T]h e modern standar d for the admissibil ity o f expert te stimony is notwhether the subject is bey ond the understanding of the jury , but whet her the t estimony will aid the jury's unde

rstanding. No highe r standard applies to opinion testimony on an ultimate issue." Perscha ll v. Metropolitan Life I

nsurance Co. , 11 3 Ill . Ap p. 3 d 23 3, 2 37 ( 198 3). Inexercisin g his or her discretion, the trial judge should carefully co nsider th e necessity a

nd relevance of the expert testimony in light of the facts in the pending case. Enis , 139 Ill. 2d at 290. When considering the reliabil ity of expert testimony, the court should balance i ts probati ve value against its prejudicial effect. Enis , 139 Ill. 2d at 290. After the witnesses were excluded, defendant submitted Dr. Huffman's repo rt and Dr. Braine rd's testimony

in an off er of pr oof. On a

ppeal, de fendant argues that both experts were improper ly excluded, but he focuses on Dr. Brainerd's proposed testimony . Dr. Brainerd testified inthe offer of proof that he ha s conducted extensive research on false memories and proper techniques fo r inter viewing children who allege se xual abuse. He has been accepted as an e xpert by numerous cou

rts in the cou

ntry , includin

g in I llinois, wh ere he was acce pted as a n expert in
me mo ry, false memory, inter viewing, and memory

suggestion pertaining to the reliability of a compl ainan t's ac cu sa ti on s a nd of st at em en ts ma de by a defendant. Dr. Brainerd has testified in court 30 to 50 times, mostly concerning child sexual abuse, child memory, suggestibility, and re li ab il it y. In this cas e, Dr. Brainerd reviewe d numerous materials, including the inv estigative and polic e reports and eight complainants' videotaped statemen ts. He opin

ed that th e compla

inants'statemen

tsNo. 2--06--0144

4 Our review of Dr . Huffma n's rep ort reve als that the gist of her opini on is s imilar to Dr. Braine rd's. She con cludes that "there is a high likelihood of tainting of the re call of the alleged victims in[this c ase]. This likelihood is affected by the pre-interviewing process, the tainting during -52- were unreliable, based upon: (1) the absence of a ny reliable c onfirmatory evide nc e ( e.g. , no st atements

by reliable a

dults, teachers, or parents that they had observed certain be haviors o r conditions that could make the events possible); (2) the existence of disconfirmatory e vidence ( e.g. , objective factors that appear to be inconsistent with the allegations); (3) infantile amnesia ( e.g. , as to C.E., w ho reported events that allegedly occurred during a period of time whe n young c hildren remember

very little abo

ut the eve

nts in their

lives); (4) delay

ed memor

y r eports ( e.g. , most allegations did not refer to any recent events in the complainants' lives but, rather , to month s and years prior ); (5) falsi ficat ion b y suggesti ve que stio ning ( e.g. , memory is susceptible to falsification inthe face of suggestive que stioning, particularly as time increases from the alleged incident); (6) repeated tellings ( e.g. , the m ore on e tell s and r etell s a part icula r stor y, even wi thou t sugge sti on, it bec omes increa singly

infecte d with fal se infor mation); ( 7) confi

rmation bi as ( e.g. , when a n interviewer

possesses certain information that he or she should not have for an unbiased interview, the interview becomes hy pothesis confirming, rather than fact g athering ); (8) inc onsistenc y in memory reports ( e.g. , major inc onsistenc ies reg arding centra l featur es of the all egatio ns); and (9) improper interview techniques ( e.g. , leading and suggestive questions instead of allowing for free narrative; steering away

from innocent constructions of eve nts or other possible in

terpretations; asking how the c omplaina nts felt about defendant; congratulating the m on a job well done; using phrases such as "inside vagina," " outside vagina," "under leota rd," "over leotard ," befor e the gi rls did; multiple choice, yes-no, and f ill-in-the-blank questions instead of open-ended questions). 4No. 2--06--0144

the interviews, and post-event information. Therefore, the reliability of the rec al l o f these young
womenconcer

ning the allege d events i s high ly unreliable within a re asonable degree of psychological certain ty." -53- Dr. Brainerd further explained that it was significant that, after C.E.'s a llegat ions came out, butbefore the other

allegations, police approached and inter viewed defendant

and the g ym' s staff in
a highly visible inv estiga

tion and, i

n th e process, falsely

reporte d that def

endant ha d confes sed to C.E. 's allega

tions. This

contribu ted to "mass suggestion," wher e other individuals had time to think and talk about the allegations, perhaps leading to fa ls e m em or y. Dr. Brainerd explained that this had multiple effects. First, he noted that C.E.'s allegations differed g reatly fr om those of all the other girls in that she describ ed being

removed from the main

gym a nd described acts involving def end ant 's p eni s. In contras t, the other girls, who came forth with their allegations at least 10 days aft er hear ing of C .E.'s allega tions, describ ed incide

nts that al legedl

y oc curred

in sit uation s and an environment that was very clos e to the ir reality-- i.e. , defend ant touch ing them while str

etching or spotting

them. According to Dr. Brainer d, the mind

does not ha

ve to move

very far to create a

falsememory that mimics reality. Second, Dr. Brainerd opined that two complainants, A.P. and K.G., demonstrated prominent acts of "reconstructive retrieval." This occurs when a person does no t have a clear memory of something but, as the subject is pondered, the memory fills in imagined details that fit the situation, whichthemselves become more real to the individual. Both girls initially stated that nothing had happened to them and signed affidavits to tha t effec t. Approximat

ely 18 months la

ter, the ir memories changed. Each alleged, "I didn't think it happened

to me, I didn't believe it, then I realizedNo. 2--06--0144

-54-

it did happen to me because I was hearing about it, it happened to the other girls, and I know th e other girls don't lie." Dr. Brainerd explained that these statements actually de scribe reconstructive retrieval and

that this process, where one remembers something be tter as time g oes by , is the pr

ecise opposite o f normal memory , where one reme mbers les s as time pr

ogress es. Dr. Brainerd explained that these issues are not within the common knowledge of an ordinar y juror becaus e most of the findi ngs grow out of scientific literature, many seem to conflict with what
commonsense sug

gests ( e.g. , most people would not realize the significance or import of repeated tellings), and the average person does not know about forensic interviewing protocol s. Dr. Brainerd specified that he was not opining on the complainants' c redibilit y- -for exa mple, whe

ther a wi tness
was telling the truth or ly

ing--w hich he a greed was a determination for the trier of fact. I nstead, he explained th at hi s t es ti mo ny went to the reliabil ity o f the stat ements--where a

witness te stifies to facts that he or she believes are true but that might be the produc t of mistaken belief, misrepresentation, suggestion, or another outside influence th at m igh t ca use mem ory d is to rti on. In other words, Dr. Brainerd explained, his opinions pertained to whether suggestion had aff ected the accuracy of the complainants' statements. The trial cou

rt exclude d the test

imony . It no te d that Dr. Brainerd sought to testify to the reliabil ity of the complainants' statements by applying his re search to the facts of this case. Si mi la rl y, Dr. Huffman applied her researc h to the fa cts of this case to i ndicate that the c omplaina

nts' in-court testimony might be unr

e liable. T

he court found tha

t this "sou

nds strikin

gly familiar " to Enis , 139 Ill. 2d 264, where the supreme co urt ca ut io ne d a ga in st th e o ve ru se of ex pe rt te st im on y. The trial court stated, "You can call it reliab ility. You can call it credibility. I t is, in my opinion, absolute ly

an invasi on of the province of the fa ct finde r to le t in the entirety

of these reports andNo. 2--06--0144

-55-

entirety of these opinions." (Emphasis added.) The court found that some of the factors upon which the doctors based their opinions, such as what the complainants knew or hear d before making t heir alleg ations, whether there was corrobor ation or conflicting information regar ding the allegations, and the number of interviews or inconsistenc i es, could be brought out on direct or cross-examination. The court determined that these factors are common credibility issues. Relying

on People v. Wilson , 246 Ill. App. 3d

311 (1993 ), wher

e, according to

the trial court, a doctor w as not per

mitted in a

child sexual abuse cas e to testify based upon his re search and statistical analysis, the court ruled that Illinois court s do not all ow experts to testify to the re liability

of child victim

testimony

, becau se it invades the province of the jury
. The trial cou

rt deter mined tha t the only valid issue was whether limited expert testimony

in the area of

proper i ntervie w techniq ues should

be permitted. According to the court, the testimony would apply only

to the documented, forensic interviews of some of the complainants. The court noted a concern that it would be opening the door to a battle of the experts a nd a tria l within a tr

ial. It conclude d that polic e offic ers' ta king sta tements, having k

nowledg e of facts from other witne sses, and asking suggestive questions are not outside the realm of the common experience of a lay juror and could be pointed out at trial. After hearing Dr. Brainer

d's testimony in the offe

r of proof, the trial court denied defend ant's motion for reconsideration and aga in noted tha t Enis held that permitting an "eminently qualified physician" to te st if

y re ga rd in g p syc ho lo gi ca l i ss ue s o f e yew it ne ss te st im on y "a nd th e r el ia bi li ty, not
cr ed ib il it y, of

eyewitness

testimony " was no t appropr iate. The court not ed that Dr . Brainerd woul d be te st if yin g a bo ut re li ab il it y, b as ed up on av er ag es of ac cu ra cy o f m an y p eople, a s opposed to
cr ed ib il it y, dealing with one individual, and that he would seek to use science to c l ear up s omeNo. 2--06--0144

-56-

misconceptions that a juror may ha ve in this area. However, the trial cou rt found t hat Enis instructed th at it wa s n ot pe rm is si bl e t o a ll ow th is typ e o f t es ti mo ny. We believe that the trial court read the holdings in Enis and Wilson t oo br oa dl y. Enis addressed ey

ewitness identification s. In that case, the defendant sought introduction of an expertto discuss the reliabil ity of eyew itness observations. The supreme court upheld the exclusion of the exper

t, conclu ding tha t the exper

t would not have aided

the trier of fact in reaching its conclusion. Enis , 139 Ill. 2d at 288. Specifically, the expert would have testified about general misconceptions that people have regarding eyewitness testimony
. However, the court determined that none of those misconceptions were applicable to the ey ewitnesses inthe case. Enis . 139 Ill. 2d at 288. For example, the expert wou ld have te stified that witnes ses to stre ssful situa tions have

less
accura te memories , althoug

h most peop le believe the opposite. But none of the eyewitnesses in the
case wi tn es se d a ny high stress situations. The supreme court affirmed the trial c ourt's ruling and cauti oned a gainst the ov eruse o f exp ert te stim ony, stat ing: "Such testimony, in this case co ncernin g the un reliabil ity o f ey

ewitness testimony

, could we ll lead to th e use of expert testimony concer ning the unreliability of other ty pes of testimony and, eventua

lly, to the use

of expert s to testify

as to the unreliability of expert testimony . Socalled experts can usually be obtaine d to support most any position. The determination of
a lawsuit should not de pend upon which side can present the most convincing expert witnesse s. We are concerned with the reliability of ey ewit nessexper

t test imony [cita tions ], whether and to what degree it can aid the j ury, and if it is necess ary in ligh t of de fendan t's ability to cross-examine eye

witnesses. An

expert's opinion concerning the unreliability of eyewitness

testimony

is based on statistic al aver ages. The ey

ewitness in a part icular c aseNo. 2--06--0144

-57-

may well not f

it within the

spectru m of these

averag es. It would be inappropriate for a jury to conclude, based on

expert tes timony , that all eyewitness testim ony is unreliable. " Enis , 139 Ill. 2d at 289-90. Thus, while the trial court here correctly noted that Enis strongl

y c autions a

gainst t he overu se of expert testimony, we cannot ag ree with the cour t's conclusions that under Enis reliability is an inappropriate ba sis for exper t testimony

, that it is im

permissib le to allow reliability testimony that
uses general

statistics or science to clear up misconceptions about an area , and that Enis clearly ba rs the evidence here. Enis held only that the expert witness in that case would not have helped the trier of fact be cause

the expert's testimony would not have a ddressed the situations pertinent to the case.

Si mi la rl y, the Fourth District in Wilson upheld the trial court's rejection of experttestimony ina child sexual abuse case, where the expert intended to testify gener ally regar ding ch ild victims'

" proclivit y to make [sex abuse] allegations only to please investig ators and pare nts who, intentiona ll y
or unintent ionally, subtl y suggest what the child should say." Wilson , 246 Ill. App. 3d at 320. The court held that the proffered testimony would not have provided inf or mation beyond that of the average layperson be cause the limited cognitive abilities of children are well known. Wilson , 246 Ill. App. 3d at 321. Further, the court concluded that the testimony would have provided nothing
more than generalizations that had nothing to do with the credibility of the child victims in the case. Wilson , 246 Ill. App. 3d at 322. In People v. Simpkins , 297 I ll. App. 3d 668, 682-83 (1998), the Fourth District reversed the trial co ur t' s a dm is si on of

ex pe rt te st im on y, finding that the State's expert's testimony regarding the frequency of and rea sons for r

ecanta tion by child vic tims of sexua

l abuse di d not aid th e jury inNo. 2--06--0144

5 Simpkins has been criticized. See M. Grah am, Cleary & Grah am's Ha

ndbook of

Illinois Evidence §704.2, a

t 591 (8th e d. 2004) (

to the exten

t that Simpkin s hol ds that " expert wit ness opinion evidence explaining recantation by a victim of sexual abuse, which is the most significant part of the ch ild sexual a

buse acc ommodation

syn drome, is an improp er comme

nt on the credibilit

y of a witness and doe s not aid the jury in rea ching its conclusion, it is incorrect and should not be followed"). -58- reaching its conclusions and impinged upon the ju ry' s p ro vi nc e t o d et er mi ne cr ed ib il it y. Again, the expe rt's testimony did not address the situation before the court. The witness testified gener ally that
a child vic tim recants his or her allegations due to an unsupportive f amily or to the child bei

n g blamed for the abusive parent's absenc e from the family. Howeve r, there was no evidence that the child victim at is sue rec anted be cause of an unsupp ortive fa

mily or beca use she f elt like a scapeg oat. Simpkins , 297 Ill. App. 3d at 683. The court conclude d that, when strippe d to its basic level, the expe rt's testimony constituted commentary on the child's credibility, similar to ey ewitness expert te st im on y, and that, in essence, the expert was being asked to give his opinion on the bel ievabilit

y of the child witness. Simpkins , 297 Ill. App. 3d at 683. 5 Re ce nt ly, the Fourth D istr ict af firme d a tri al cou rt's ad miss ion o f an ex pert w itnes s's testimony about sexual abuse victims' delay s in rep ortin g and pi ecemea l repo rting d ue to f eelin gs of shame. Peoplev. Butler , 377 Ill. App. 3d 1050 (2007). The expert's te stimony included opinions that the two sexual abuse victims in the case had exhibited delayed repor ting; tha t one vi ctim 's reporting was piecemeal; that piece meal reporting

is often viewed by a

layperson

as a lie; and that the expert had no opinion as to whether the victims were believable. The court re jecte d the defend ant's argument that the testimony improperly bolstered the victims' testimony a nd impingedNo. 2--06--0144

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uponthe jury' s function to determine credibility. Butler , 377 Ill. App. 3d at 10 64-65 . The court conclud edthat, unli ke in Simpkins , the expert testimony found support in the testimony of the victims, who had de layed repor ting, whose reporting wa s argua bly piecemeal, and who had

feeli ngs of shame. Butler , 377 Ill. App. 3d at 1064. Further, the court determined that the expert' s testimony did not constitute improper commentary o n the cre dibility

of the victims beca

use--un like in Simpkins , where the jury

knewthat the investigator had interviewed the victim, and the expert was presented inthe State 's case -in-chie f--the e xpert told the jury

that she h ad not spok

en to either victim and that she had not mad

e any determination as to

whether they

were credible. Butler , 377 Ill. App. 3d at 1065. Thus, "[the expert's] testimony aided the trier of fact, while leaving that trier of fact to determine t he issue of cre dibilit y." Butler , 377 Ill. App. 3d at 1065. We conclude that the trial court here ab used its discreti on by

entirely excluding

the exper ts' te st im on y. First , the t rial c ourt's readings of Enis and Wilson and it s find ing regar ding d efenda nt's ability to address these issues through cross-examination ar e errone ous. Enis , Wilson , and Simpkins found critical that the proposed experts spoke in generalities not applicable to the fact s of those
cases. That is not the case here. As the trial court noted, both Drs. Braine rd and Huffman no t only opined about theoretical principles, but also applied the theorie s to the facts and circumstances surrounding the investigations of the complainants' a llegations. Second, we d o not agree

that all a reas of the exper ts' prop osed test

imony either a re within the common knowledge of an averag e juror or could have been addresse d thr o ugh crossexamination. It is h

ighly doubtf ul th at psy

cholog ical concepts suc

h as rec onstruct

ive retr ieval, infantile amnesia, mass suggestion, and even forensic interviewing

techniques for child victims of sexual abuse are within common knowledge. The trial c o urt a sserted that def endant c ould cros s-No. 2--06--0144

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examine the complainants about what they heard and knew before t hey co mplained and what questions were asked by

the investigators. In our opinion, cross-e xamination was not a su

bstitute for the experts' testimony, bec ause it merely e licited facts without helping the jury understand how those facts impacted the reliability of memory and, the

refore, the complainants' statements. Third, the trial court appears to have merg ed the concepts of r el ia bi li ty a nd cr ed ib il it y. Experttestimony is admissible where the expert speaks to his or he r knowledge as applied to the facts of a cas e without improperly commenting on w itness credibility, particularly where the expert has not spoken to the victims and testifies that he or she has not made any de

termination regarding
cr ed ib il it y. Butler , 377 Ill. App. 3d at 1065. Both factors a re present here. Neither expert persona lly interviewed

the compl ainants. Dr. Bra inerd expl icit ly no ted that he had no opinion regarding whether the complainants were telling the truth. Rather, he explained that his testimony pertained to whether the truth, as the complainants believe it, could have been impacted by the circumstances
s urrounding their stateme

nts and the forensic interviewing techniques. L ikewise, Dr. Huffman stated inher rep ort that she was not address ing the c omplaina nts' cr edib ility or h ow believable the complainants may be but, ra ther, th eir reli ability

and whet her the e vidence is, in actu

ality , what it proposes to be. The testimony here wa s relevant to whether the investigative techniques a nd the circumstances surround

ing the a llegat ions cre ated disto

rted memories or mi sconceptions. I n this case, with no physical

evidence or third-party

eyewitnesse s, the testimony may have been he lpful to the jury in deciding

the issues. An expert witness may provide a n opinion on the ultima

te issue in
a case because the"trier of fact is not required to acc ept the witness' conclusion and, therefore, suc h testimony cannot be sai d to usurp t he province o f the jury." People v. Terrel l , 185 Ill. 2d 467, 497No. 2--06--0144

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(1998). Although the trial court hinted that the evidence would not be let in in its entirety, it did not separa tely assess the t estimony on each issue a nd weigh its probative value against its prejudicial effec t. See Peop le v. Allen , 37 6 Ill. App. 3d 511 (2007) (refusa l to allow an expert to testify regarding the reliability of ey

ewitness identification

was reversible error where the trial court did not give serious c onsidera

tion to the o ffer of

proof, f ailed toconduct t

he requisite probative versus prejudicial balanci

ng test i n conside ring the admissi b ility of the expert testimony , and did not seriously consider the releva

nt parts o f the pro

posed tes timony

). Thus, we conclude that the court erred in summa

ri ly excluding the expert testimony in its entirety. We remand for r econsideration of the exper ts' testi mony , consiste

nt with the

thoughts expressed herein. In so doing, we express no opinion regarding which, if any , portions of the testimony are a dmissible. D. Lesser I

ncluded Offense I

nstruction Defendant

next argues that

the trial court abused

its discretion in refusing his proposed jury instructions and

verdict forms that included the crime of battery (720 IL CS 5/12--3 (West 2004)) as a lesser included offense of the charges . He cont

ends that the err or requi res rev ersal. We review

for an a buse o f disc retio n a tri al cou rt's refusa l to submit a

lesser in cluded of fense instruction. People v. Garcia , 188 Ill. 2d 265, 283 (1999). Generally, a defendant may not be convicted of an offense with which hewas not charged. People v. Washington , 375 I ll. App. 3d 243, 248 (2007). A defendant may properly be

convicted of an uncharged of fense where: (1) the uncharged

offense is identified

by the charging instrument as a lesser included offense of the one charged; and (2) the evidence adduced at trial rationally supports a conviction of the lesser included offense. Was hington , 375 Ill. App. 3d at 248. The purpose of an instruction on a lesser included offense is to provide the jury

with a third option in the event it believes that the defendant is guiltyNo. 2--06--0144

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of s o mething

but is unce

rtain of w

hether t he char ged of fense w as prove

n and mig

ht otherw ise convict rather than acquit the defendant of the greater offense. People v. Poulos , 303 Ill. App. 3d 818, 823 (1 999), quot ing People v. H amilton , 17 9 Ill. 2d 319, 323-24 (1997). A lesser included offense instruction is required only when the evidence reveals that the jury could rationally find the defendant guilty of the lesser offense y

et acquit the defendant of the greater offense. Poulos , 303 I ll. App. 3d at 823. A lesser included offense instruction is not required when the e vidence shows that the defendant is either guilty of the gre at er offense or not guilty of any off

ense. See People v. Kerner , 183 Ill. App. 3d 99, 106 (1989). D efen dant

argues that the trial court erre d in refusing his battery instruction for each complainant. He argues that battery is a lesser included offense of ag gravated criminal sexual abuse,
as battery occ

urs if an individual commits an intentional or knowing touching without leg a l justification and by any

means makes physica

l contact of an insulting or provoking nature. 720 I LCS 5/12--3 (West 2004). The State contends that the trial court's ruling was corre ct because no rational jury would have fo und t hat de fendan t tou ched t he com plain ants' s ex or gans or breast s in a k nowin g, insulting fashion, but not for sexual gratification. We agree
. In Kerner , the court held that a lesse r include d offens e instruction on bat tery was prop erly reje ctedin an aggravated cr iminal sexual abuse case where the defendant wa s either guilty of the greater of fense or not guilty

of any off

ense. Kerner , 183 Ill. App. 3d at 106. The defe ndant ha d argued that he di d not touch

the victim s' sex organs or br east s, o r, if he did, that the touching was unintentiona l. Ac cording to the cou

rt, if the jury believe d the def

endant' s version , then its o nly conclusionwo ul d b e t ha t h e w as no t g ui lt y of an y offense. "The only othe r possibility is that the touching was intentional. If there wa s an intentiona l tou ching, under the evidence pre sented, theNo. 2--06--0144

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touching of the victims' sex organs or breasts could only have been for sexual gra ti fication. Thus the defendant would have committed agg ravated criminal sexual abu se, not merel y battery." Kerner , 183 Ill. App. 3d at 106. Defendant

distingu ishes Kerner

by a rguin g that, under the facts here, he , as a gy mnastics instructor, was req

uired totouch the co mplai nants ' bodi es to s pot t hem, a lign them, and shape them during their exercises, whereas the defendant in Kern er had no reason t

o touch the

complainants. Thus, there was evidence in the recor d where the jury

could have found that defendant did not touch the complainants on their sex organs or breasts, but instead touched them inother ar

eas, suc h as their thighs or stomachs, in a n offensive way . We disagree. Clearly this conduct is not covered by the charging instrument. If the jury

found de fendant

guilty only of touchi ng the c omplaina

nts in areas other tha n their sex organs a

nd breas ts, he wou

ld have be en acqu

itted of the charg es. We find Poulos instructive. There, the defendant was cha rged with criminal sexual assault for penetrating

the complainant's vagina with his finger . The evidence showed that the defendant had also touched the complainant's thigh. On appeal, the court rejected the defendant's argument that
a lesser included offense instruction was required ba sed onthe touching of the thigh, holding that the indictment clearly did not describe a battery

premised on an insulting or provoking touching of the thigh. Poulos , 303 Ill. App. 3d at 824. "To accept defendant's ar

gument would be to accept that a charge o f crimina

l sexual ass ault includes an i nsu lting or provoking touch anywher e on the body, despite the limited descriptionof the charge. This is an absurdity. *** I f defen

dant touc hed [the c omplaina

nt] on the thigh, he could have been charged with a separa te offense of batte ry and could

haveNo. 2--06--0144

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been convicte d of both

criminal sexual assault *** and battery ***." (Emphasis in original.) Poulos , 303 Ill. App. 3d at 824. Defend ant's reliance on People v. Margiolas , 117 Ill. App. 3d 363 (1983), where the court held that battery wa s a lesser included offense of ra pe, is mi splaced . We do not a gree w ith defend ant's contention that it automatically follows that he is entitled to a lesser includ ed offe nse instruction on battery. As the Poulos court noted, critical to the court's holding in Margiolas was the fact that the in sulting to

uching allege d as a bat

tery was the sa

me act charge d in

the rape ind

ictment. Poulos , 303 Ill. App. 3d at 824. Here, as in Poulos , defendant asserts that the insulting touching that would support a battery instructi on involve d differ ent part s of the body than those mentioned in the indictmen t. Under th e ratio nale i n Poulos and Kerner and under the facts of this case, if the jury found that defenda nt did not to

uch the c omplaina

nts' sex or gans or breasts , then it wo

uld have found him guilty of nothing . We do not hold that a lesser included offense instruction on battery is never p roper in a c ase of a

ggra vated cr iminal sexua

l abuse. R

ather, w e find tha

t, under t he fact s of this case, the trial court properly refused the lesser included offense instruction. E. Vi de ot ap es an d V is it to Gym Prior to trial, defendant moved the court to have the jury visit the gym and to conduct limited testimony there. The court denied the motion, finding that the g ym was under the

con trol o f defend ant's family and that it had bee n altered by the

installation of

security camera s subseque

nt to the allegations. At trial, the State was permitted to play a videotape o f the gy

m with no classe s, students, parents , or coaches present. Defendant's attempt, after the trial had begun and witnesses had already testified, to introduce a videotape of the gy m with children attending classes was denied, and the trial court ap parentl y f ound that t

he videot ape viola ted disc overy and w as a "stagedNo. 2--06--0144

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photograph." The State's videotape was given to the jury for its deliberations, with other admitted evidence. Together, defendant claims, these trial court decisions distorted the jurors' perception of the alleged crime scene and were contrary to the eviden ce at tri al that the gy m was active and occupied by many people du

ring the allege d crimes. He notes that the c omplaina

nts alleged

that he committed

acts inside the facility

with potential witnesses present and that his case "was pre mised uponhis argument that it defied reality to believe the alleged conduct could have occurred without any corroborative witnesses, in an open crowded gymna sium with numerous children, coaches and parents looking on." Defendant contends that the cu mulat ive eff

ect of t he cou rt's refusa

l to permit the jury to visit the gy

m, its exclusion of

his v ideot ape of t he gym, and its p ermis sion of the Stat e's videotape of an empty g

ym precluded him fr

om presentinghis theory of the ca se and denied him a fair tri al. He c ontends that the er rors war rant re versal. "Whileindividual trial errors may ha ve the cumul ative eff

ect of deny

ing a defendant [the right to a fair trial], no such accumulated error occ urs where none of the separate c laims am ounts to reversible err or." Peoplev. Dresher , 364 Ill. App. 3d 847, 863 ( 2006). We r

eview for an abus e of discr etion a tria l cour t's decisions whether to visit a crime scene( People v. Durso , 40 Ill. 2d 242, 251-52 (1968)), to admit evidence ( People v. Hood , 213 Ill. 2d 244, 256 (2004); People v. Caffey , 205 Ill. 2d 52, 89 (2001) ), and topermit evidence to be viewed d uring ju ry deliber ations ( People v. Hunley , 313 Ill. App. 3d 16, 38 (2000)). First, we consider defenda nt's re quest to tr

ansport t he jury to the gy m. It is n ot an abus e of discretionto de ny a request to visit a crime scene when no useful purpose would be served by suc

h
a visit. People v. Gonzalez , 294 I ll. App. 3d 205, 214 ( 1998). " Photogr aphs are often ad equate t o portray the scene for t he jury." Gonzalez , 294 Ill. App. 3d at 214. While we would not go so far asNo. 2--06--0144

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to say that no useful purpose would have been served by a visit to the gym, we c annot say that the trial court's decision to deny defendant's request was an a buse of discretion, particularly in light of its findi ngs that: (1) the alleged crime scene was in the control of defenda nt's family; (2)

there had been phy sical alt eration s (albeit

minor) to t

he premi ses; and (3) there were 164 photographs and a videotape of the gy

m for the jury' s review. Defendant

suggests that the minor change s to the gym could ha ve been explained to the ju ry. Even so, the trial court found essentially that the visit was unnece ssary because the photographs and videotap e were adequate means of portra ying the a

lleged crime scene. I

t appears tha

t th e photographs alone may ha ve been adequate to portray the crime scene to the jury . Both the

State and defendant prepa red h undreds of photographs of the gy m, and the photographs were heavily relied upon by both sides during tria l. Inaddition to

photographs, there was also a videotape of the gy m to show the jury the alleg ed crimescene. Defendant arg ues that the State's videotape was deficient be cause it failed to demonstr ate the witnesses' positions relative to the locations of t he alleged acts and that the videotape made th e f

ac il it y lo ok li ke a " ma ss iv e, em pt y, airplane hanger, which it was not." Further, he contends, the videotape showed compartmentalized views of the small ro o ms, rather than how one could see from one room into another. I n contrast, he contends that his videotape was a more
accura te portraya

l of the crime scene than t he St ate's because it showed how the gy m looked during normal business hours. Again, the decisions to admit the State's tape and to exclude defenda nt's were within the court 's discreti on. As to th e State' s ta pe, defe ndant was able to describe at trial the alleg ed inadequacies of the tape, and he repeat edly argue d to the jury that hundreds of people were presentNo. 2--06--0144

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almost every day and durin

g the al leged a

cts. We cannot say that admission of the State' s tape was inerror or, in light of

the fact that it was used at trial and admitted into evidence, that allowing the tape into jury delibera

tions was an abuse of discretion. Ap pa re nt ly, defenda

nt's vide otape wa s excluded because of a disc overy

viola tion and becaus e the court considered it to be a "stage d photograph." Nei ther s ide explains what the discovery violation was (although, since he moved to prese nt the vide o after

the trial had beg un, we pr esume it involved l ate disc losure)or provid es us with t

he court's actu

al ruling on this issue. Thus, without knowing the r ationale behind the court's decision, we cannot say that it abused its discretion excluding defendant's videotape. Moreover , while we understand defendan t' s argument that a vi deotape of an empty g

ym, particularly

when not balanced by

a videotape of an occupied g ym , presented a distorted view of the sceneof the alleged crimes, we note again that d efenda nt was ab le to ef fective ly im

press upon the jury that, on a daily basis, and, more importantly , on the dates at issue, the gy

m was hi gh ly a ctive with people every where and that views were unobstructed. Ac co rd in gl y, becaus e we ca nnot c onclude that any of the challenged decisions were in er ror, we cannot sa y that they

cumulatively

deprive d defend

ant of a f air tria l. F. Sufficiency

of the Evidence Defendant argues that the evide nce was in su ff

ic ie nt to su st ai n h is co nv ic ti on s. Ac co rd in gl y, he seeks revers al. Becau se we are rem anding for a ne w trial, w e must con sider de fendant's arg ument as to whether the evidence was sufficient to prove his guilt bey ond a reasonable doubt. Peoplev. Fornear , 176 Ill. 2d 523, 535 (1997). When a defendant challenges the sufficiency of the evidence supporting his or her conviction, the inquiry is whethe

r, afte r viewing the evide nce in the light most

favora bleNo. 2--06--0144

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to the State , any

rationa l trier of fact co uld have f

ound the e ssenti al elements of the crime bey ond
a reasonable doubt. People v. Collins , 214 Ill. 2d 206, 217 (2005) . It is the function of the trier of fact to weigh and resolve conflicts in the evidence and draw re asonable

inferences from the evidence. People v. Williams , 193 Ill. 2d 306, 338 (2000). We will not overturn a defendant's conviction as based on insufficient evidence "unless the proof is so improb able or u

nsatisfa ctory that a re asonable doubt ex ists as to the defendant 's guilt." Williams , 193 Ill. 2d at 338. Defendant

acknowl edges

this standa

rd, but contends tha

t the evid ence he re was in sufficie

nt, particu larly in light of the "logical inconsistency of the verdicts." He contends that eac h complainant
was impeach ed, some s everel y a nd repea tedly , and that , despite

the pres e nc e o f n um er ou s g ym employ ees, students, and pare

nts, no one

observe d any

of the al leged m

isconduct. He contends

that,
as to C.E., A.P., S.H., A.S., S.O., a nd N.E ., th ere was insu ffici ent ev idenc e of mer e touc hing, because each wi tn ess testifi ed that she was penetrated and the jury rejected their penetration te st im on y. However, C.E., A.S., A.P., and N.E. did not testify to any char

ged act where they

were only touched. As to S.H. and S.O., their testimony reg arding being only touched related not to the allegations of the charges, but to uncharge d misconduct. There fore, de fendant contends that those convictions should be r

everse d becau se they

are logically

inconsiste

nt. Moreover, he contends that each complainan

t lacked credibi lity . As to B.P
. and A.S., defendant contends that his convictions of touching them on the ir sex org ans and breasts sh ould be reversed

because their testimony

lacked credibility. We conclude that, viewed in the light most favorable to the State, the evid ence was sufficient to sustain the convictions. Again, we will not reweigh the evide nce or make credibi lity determinations. What defendant characterizes as the jury reachi ng inconsistent r

esults may also beNo. 2--06--0144

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characterized

as the jury doing

its job to carefully weig

h the evidence and determine which testimony it deemed credible. Defendant' s assertion that there was no testimony regar ding mer e touchin g is inaccurate. In addition to discussing penetration, the complainants testified that defendant slipped his hand under their leotards and "felt ar ound," or " touched [the] vagina and moved his hand around," or "touched the skin" surrounding the vaginal opening , or "moved his fingers up and down." Also, the State presented a witness, Dr. Sangita Rang ala, who testified regarding the a natomy of the female genitalia. In re

jecting defenda nt's "i llogica

l-verdic t" argument on his motion to reconsider, the trial court noted that it presumed that the purpo se of Dr. Rangal a's tes timony was to aid the jury indetermining whether actual penetra tion occurred. We agree that there was sufficient evidence for the jury 's conc lusions an

d that, ba sed upon th

is eviden ce, they were no t inhere

ntly illogica l. Sufficient evidence for the verdicts was present . Even wit hout the te stimony

of other crimes, the seven complainan

ts' alle gations

as to the charges are

inherently cr

oss-corroborating. Moreover, both S.O. and S.H. testified about an incident where defendant touched S.H. inappropriately during
a press handstan

d, and N.E . testifie d that she believe d she saw

defenda nt touchin

g B.P. in ap pr op ri at el y. Thus, because we find that the evidence wa s suffi cie nt to suppor t the gui lty verdicts, there is no double jeopardy impediment to a new trial. Fornear , 176 Ill. 2d at 535. IV. CONCL

USION The judgment of the circuit court of Du Page County is reversed, a

nd the cause remanded for a new tri al. Reversed and remanded. BOWMAN and GROMETER, JJ., concur.