People v. Cardamone, 2-06-0144.

• Court: United States Appellate Court of Illinois
• Citation: 381 Ill.App.3d 462,885 N.E.2d 1159
• Docket Number: No. 2-06-0144.,2-06-0144.
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Michael P. CARDAMONE, Defendant-Appellant.
• Decision Date: 27 March 2008

885 N.E.2d 1159

381 Ill.App.3d 462

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Michael P. CARDAMONE, Defendant-Appellant.

No. 2-06-0144.

Appellate Court of Illinois, Second District.

March 27, 2008.

Kathleen T. Zellner, Douglas H. Johnson, Kathleen T. Zellner & Associates, P.C., Oak Brook, for Michael P. Cardamone.

Joseph E. Birkett, DuPage County State's Attorney, Lisa Anne Hoffman, Assistant State's Attorney, Wheaton, Lawrence M. Bauer, Deputy Director, Mary Beth Burns, State's Attorneys Appellate Prosecutor, Elgin, for the People.

Justice CALLUM delivered the opinion of the court:

I. INTRODUCTION

Defendant, Michael P. Cardamone, a gymnastics coach, was charged with predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2002)) (8 counts) and aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(1)(I) (West 2002)) (18 counts) against 14 gymnasts at the American Institute of Gymnastics (gym) in Aurora. Defendant's jury trial lasted approximately two months, included more than 100 witnesses for the defense, and generated over 10,000 pages of hearing transcripts. After deliberating for three days, the jury found defendant guilty of nine counts of aggravated criminal sexual abuse against seven girls. The trial court denied defendant's posttrial motions and sentenced him to 20 years' imprisonment.

Defendant appeals, arguing that: (1) the trial court erred in admitting evidence of uncharged misconduct against the complainants; (2) the trial court erred in admitting evidence of uncharged misconduct against a girl at another gymnastics club; (3) the trial court erred in refusing defendant's unanimity instruction; (4) the trial court abused its discretion in excluding expert witness testimony regarding the complainants' statements' reliability in light of suggestive interview techniques (5) the trial court abused its discretion in refusing to instruct the jury on the lesser included offense of battery; (6) the trial court erred in barring defendant's videotape of the gym's facility, not allowing the jury to visit the facility, and allowing the State's videotape and photographs of the facility both into evidence and inside jury deliberations; (7) the State failed to prove defendant's guilt beyond a reasonable doubt; and (8) the trial court abused its discretion during sentencing by considering defendant's failure to admit guilt instead of his rehabilitative potential. For the following reasons, we agree with defendant's arguments regarding the improper admission of uncharged conduct, the refusal of the unanimity instruction, and the exclusion of expert witness testimony. Accordingly, we reverse and remand the cause for a new trial.

II. BACKGROUND

A. State's Case

All of the acts defendant allegedly committed, except for one, occurred at the gym, which is owned and run by defendant's family. The gym's main area resembles a large, open warehouse and is filled with gymnastics equipment, including a foam pit, mats, uneven bars, balance beams, vaults, and a floor exercise area. The square floor exercise area is in the center of the room and is bordered by an area with several sets of uneven bars on one side, vaulting runways, vaults, and a tumble track on the second side, an area with several balance beams and windows on the third side, and an open area in front 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 the opposite side of the gym, in the corner between the balance beams and the other vaults, is a storage area. There are no walls or other barriers dividing the gym's main area. Smaller rooms, adjoined by a hallway, are located outside the gym's main area. Those rooms are preschool rooms, which are referred to as the "house room" and the "castle room," and a music room. Gymnastics, preschool, and cheerleading classes are conducted during business hours.

The 14 complainants were gymnastics students at the gym. Complainant C.E. made allegations against defendant in November 2002, and the remaining allegations followed. All the conduct, charged and uncharged, allegedly occurred during a three-year time period, between 1999 and 2002. Of the 26 counts charged, defendant was convicted of 9 counts of misconduct, against 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 order that they appeared at trial, follow.

1. Complainant A.P.

Defendant was charged with predatory criminal sexual assault against A.P. for penetrating her sex organ with his finger and aggravated criminal sexual abuse for touching A.P.'s sex organ for the purpose of sexual gratification. According to the charges, the two counts represented alternative theories relating to the same act, which occurred sometime between December 2000 and March 2002, while A.P. stretched against a mat by a vault.

At trial, A.P. testified first to the conduct that was the subject of the charges. A.P. began attending classes at the gym when she 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 coached her less with each passing year. Around December 2001, defendant assisted A.P. with a straddle stretch. He leaned a mat against a vault. A.P. lay down on the floor, with her head towards a wall and her legs and bottom against the mat. She spread her legs and defendant, kneeling, placed one hand on each of her thighs and pressed down to stretch her. He then moved his hands closer to her vagina and slid his finger beneath her leotard, touching her vagina. He felt around and put his finger inside her vagina to the end of his fingernail—approximately half an inch. After sliding his finger under her leotard and inserting his finger inside her vagina, defendant kept his finger there for two seconds.

The assistant State's Attorney notified the trial judge that A.P. was going to discuss additional conduct. The trial judge told the jury that evidence would be presented that defendant was involved in offenses other than those charged in the indictment and that the evidence was to be received on the issues of defendant's intent, absence of innocent mental state, course of conduct to corroborate the victim's testimony concerning the charged offense, 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 her vagina, 40 to 50 other times. Defendant penetrated her vagina every year that she took classes at the gym, but the number of times decreased each year. A.P. testified that this behavior always occurred in the same location of the gym. Although she first testified that he had touched her 40 to 50 times, A.P. later estimated that, by the time she left the gym, defendant had touched her inappropriately over 100 times.

A.P. acknowledged that the gym was very crowded. She testified that, when the incidents occurred, as many as 100 to 200 other people were present in the gym, many within a matter of feet from her. Other girls were in lines, vaulting past her, from both directions. A.P. did not object to being stretched by defendant, nor did she complain to anyone. She testified that she did not complain to defendant, tell him to stop, or flinch and try to get away. A.P. knew what inappropriate 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 continued to go to him to stretch. A.P. testified that other gymnasts also went behind the mat to be stretched by defendant. 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 gym in 2002 because the training and conditioning were too difficult. After she left the gym, A.P.'s mother asked her whether defendant had ever touched her inappropriately. A.P. testified that she told her mother no, that he had not touched her, because she did not want to get involved and did not want everyone at the gym to hate her. Her mother gave her an affidavit that stated, "[d]efendant never touched me in an offensive or inappropriate or sexual manner, nor did I ever see him touch any other gymnast in an inappropriate or sexual manner." A.P. signed the affidavit on May 1, 2003, but testified that in it she was not telling the truth. A.P. explained that her mother was one of defendant's ardent supporters, which made it hard to tell the truth.

Later, in April 2004, A.P.'s mother again asked whether anything had happened between A.P. and defendant. A.P. cried and told her mother that defendant had touched her. A.P. knew some of the other complainants and looked up to them as superior gymnasts. The other complainants were in a different training group, and A.P. was not in their "clique." She did not discuss the allegations against defendant with those girls because she had already left the gym before the allegations started. A.P. was not present at a November 2002 sleepover held by complainant B.P.

The jury found defendant not guilty of penetrating A.P.'s sex organ with his finger. However, it did find him guilty of touching A.P.'s sex organ for the purpose of sexual gratification.

2. Complainant A.S.

Defendant was charged with predatory criminal sexual assault against A.S. for penetrating her sex organ with his finger and aggravated criminal sexual abuse for touching A.S.'s sex organ for the purpose of sexual gratification. The act allegedly occurred in the summer of 2000, during straddle stretches near a vault. In addition, defendant was charged with aggravated criminal sexual abuse for touching A.S.'s breast in the...