People v. Cardona

• Decision Date: 02 March 2012
• Docket Number: No. 2–10–0542.,2–10–0542.
• Citation: 966 N.E.2d 1013
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Hernando CARDONA, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

966 N.E.2d 1013

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Hernando CARDONA, Defendant–Appellant.

No. 2–10–0542.

Appellate Court of Illinois, Second District.

March 2, 2012.

Thomas A. Lilien, Deputy Defender, Kathleen Weck, Office of the State Appellate Defender, Elgin, for Hernando Cardona.

Michael J. Waller, State's Attorney, Waukegan (Lawrence M. Bauer, Deputy Director, Gregory L. Slovacek, State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

Presiding Justice JORGENSEN delivered the judgment of the court, with opinion:

¶ 1 Defendant, Hernando Cardona, appeals the trial court's certification of his sex offender status. For the following reasons, we affirm.

¶ 2 I. BACKGROUND

¶ 3 A. Underlying Facts

¶ 4 On May 18, 2007, the victim, A.K., then in fifth grade and age 11, was walking home from school. A friend and classmate, D.H., called out to A.K. to wait. D.H. told A.K. that "a man" was following her and she did not want to walk alone. A.K. walked with D.H. to the corner, and D.H. turned off to go home. A.K. was then alone.

¶ 5 Soon after, A.K. felt the man grab her wrist from behind. The man spoke some words to A.K., the content of which are in dispute, but he allegedly stated that he wanted to have sex with her. After some struggle, A.K. kicked the man in the shin and broke free.

¶ 6 A.K. ran home and told her father what happened. Her father called the police. The man was later determined to be defendant, age 51 and a diagnosed schizophrenic. Defendant was apprehended as a result of D.H.'s positive identification and A.K.'s corroborating information.

¶ 7 A grand jury indicted defendant on two counts: (1) indecent solicitation of a child (in that defendant, a person of 17 years of age and upwards, with the intent that the offense of predatory criminal sexual assault of a child be committed, knowingly solicited A.K., a child under the age of 17 years, to perform an act of sexual penetration ( 720 ILCS 5/11–6(a) (West 2008))); and (2) unlawful restraint (in that defendant knowingly and without authority detained A.K., grabbing A.K. and holding her against her will ( 720 ILCS 5/10–3(a) (West 2008))).

¶ 8 B. Section 115–10 Hearing

¶ 9 The State moved to permit testimony, pursuant to section 115–10 of the Code of Criminal Procedure of 1963 ( 725 ILCS 5/115–10 (West 2008) ), of out-of-court statements made by A.K. to her father and to Officer Michael Taylor, describing the acts that comprised the elements of the charged offenses. The trial court conducted a hearing to determine whether the time, content, and circumstances of the statements provided sufficient safeguards of reliability to be admitted as substantive evidence at the upcoming trial.

¶ 10 A.K.'s father testified that, on the afternoon in question, he was standing outside in his front yard when A.K. ran up to him, crying and out of breath. A.K. was hyperventilating and would not calm down. Finally, A.K. was able to tell her father that a man grabbed her on the way home from school and said he wanted to have sex with her.

¶ 11 Taylor testified that he was a juvenile officer for the City of Waukegan with 14 years of experience. He also completed a 40–hour class involving interview techniques for child victims and witnesses. Part of his duties included teaching a Drug Abuse Resistence Education (DARE) class to fifth-grade students at A.K.'s school. Taylor knew A.K. because she had attended his DARE class once per week over the course of the school year. Taylor interviewed A.K. in the principal's office at the school.

¶ 12 Taylor asked A.K. if she knew why he was conducting the interview. A.K. responded that it was because of the man who followed her home from school. A.K. indicated the route that she had taken home, noting that she walked part of the way with D.H. She knew that defendant had been following D.H. After D.H. turned a corner, defendant (who had temporarily left the girls' sight) grabbed A.K. by the wrist and, in an Hispanic accent, asked A.K. if she wanted to have sex with him. A.K. told defendant, "No." Defendant then made a statement to the effect of: "You know you want to." A.K. tried to pull away. Defendant hit A.K. on the arm with his free hand. A.K. kicked defendant in the shin, broke free, and ran away. Defendant continued to follow her. He was not running, but he was walking fast. A.K. made it home, where she saw her father in the front yard.

¶ 13 Taylor stated that A.K. looked embarrassed when relating that defendant had asked for sex; she looked down and did not look Taylor in the face. However, A.K. did not seem particularly comfortable at any point in the interview, not just those portions pertaining to defendant's request for sex. Taylor stated that the information relayed by A.K., even after a half-hour of questioning, contained zero inconsistencies.

¶ 14 Although A.K. was able to relate certain features concerning defendant's identity (i.e., clothing, accent, general appearance), she was not able to identify him in a photo lineup. She declined to point to any of the photos. She told Taylor that, during the attack, she had been too afraid to look defendant in the face (it was D.H. who had identified defendant).

¶ 15 The trial court deemed A.K.'s out-of-court statements sufficiently reliable to be admitted at the upcoming trial. Of particular note to the court was the spontaneous and consistent nature of the statements. The court also pointed to A.K.'s refusal to identify defendant in a photo lineup, essentially stating that no ulterior motive tempted A.K. to make a potentially false identification.

¶ 16 C. Unfitness and Discharge Hearing

¶ 17 Meanwhile, shortly after defendant had been charged, the trial court ordered a fitness evaluation. The clinical psychologist reported that defendant appeared to be in an acute schizophrenic state, was an unreliable historian (once stating that he moved from "Atahualpa," which is not a real location but a sixteenth-century Inca ruler), and could not communicate the offense with which he was charged (even with the help of his Spanish-speaking translator). The court ruled defendant unfit to stand trial and ordered that he be placed in the Elgin Mental Health Center.

¶ 18 After more than a year at the mental health center, defendant's providers were unable to restore him to fitness. Therefore, defense counsel moved for a discharge hearing, a proceeding where an unfit defendant is tried before a court without a jury, where the State still has the burden of proving the defendant guilty beyond a reasonable doubt, and where one of three findings is made: (1) not guilty (acquittal); (2) not guilty by reason of insanity (acquittal); or (3) not "not guilty" (nonacquittal). 725 ILCS 5/104–25 (West 2008).

¶ 19 The court conducted the discharge hearing nearly two years after the charged offense took place. By this time, A.K. had just turned 13. The court allowed A.K.'s father and Taylor to testify to the out-of-court statements that A.K. made to them following the incident. In the section 115–10 hearing, the court had deemed these statements sufficiently reliable to be admitted as substantive evidence at trial, and, in the absence of a trial, they would be admitted as substantive evidence at the discharge hearing. Both A.K.'s father and Taylor testified that A.K. told them that, while grabbing her, defendant stated that he wanted sex.

¶ 20 A.K. testified consistently with the statements she had given to her father and to Taylor—with one significant discrepancy. When asked on direct examination what defendant said to her, A.K. answered: "He said that whether I liked it or not, I was going to go with him." When asked directly if defendant ever said anything along the lines of, "I want you to have sex with me," A.K. answered: "Not that I remember." The State asked A.K. to clarify, and A.K. again stated that she did not remember "one way or the other" whether defendant mentioned sex. During cross-examination, A.K. again stated that she had no memory of defendant saying anything about sex.

¶ 21 At the close of evidence, the trial court ruled as follows. As to the indecent solicitation charge, the court entered an acquittal finding of "not guilty," stating in the written form order: "The evidence does not prove the defendant guilty beyond a reasonable doubt. Judgment of acquittal is granted." The court noted that there was "conflicting testimony" that left "some doubt" as to what defendant actually said to A.K. (i.e., whether defendant verbally solicited A.K. for sex).

¶ 22 As to the unlawful restraint charge, the court entered a nonacquittal finding of "not ‘not guilty,’ " stating in the written form order: "Based on a standard of proof beyond a reasonable doubt, no acquittal should be entered by this Court. The defendant is not found ‘not guilty.’ No judgment of acquittal is entered." (Emphasis added.)

¶ 23 D. Certification Hearing

¶ 24 Following the discharge hearing, defendant was remanded to the care of the mental health facility. However, defendant's extended treatment was set to end within four months. The State moved for the court to consider two alternative bases by which to retain supervision over defendant: (1) civil commitment (requiring a finding that defendant constituted a serious threat to society); or (2) registration as a sex offender (requiring a finding that the crime for which defendant received a nonacquittal, i.e., the unlawful restraint, was "sexually motivated"). Based on the most recent fitness reports, the court found that defendant did not meet the criteria for civil commitment. However, the court required defendant to register as a sex offender, finding that one or more of the facts underlying the offense of unlawful restraint indicated an intent to engage in behavior of a sexual nature. This appeal followed.

¶ 25 II. ANALYSIS

¶ 26 The gravamen of defendant's appeal is that the trial court cannot logically have found the unlawful restraint to have been sexually...