People v. Fretch

• Decision Date: 16 March 2017
• Docket Number: No. 2-15-1107,2-15-1107
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ian F. FRETCH, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2017 IL App (2d) 151107
75 N.E.3d 329

The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Ian F. FRETCH, Defendant-Appellant.

No. 2-15-1107

Appellate Court of Illinois, Second District.

Opinion filed March 16, 2017
Rehearing denied April 21, 2017

Emily Eisner, of Law Office of Emily Eisner, of Chicago, for appellant.

Robert B. Berlin, State's Attorney, of Wheaton (Lisa A. Hoffman and Mary A. Fleming, Assistant State's Attorneys, of counsel), for the People.

OPINION

JUSTICE BIRKETT delivered the judgment of the court, with opinion.

¶ 1 Following a bench trial, defendant, Ian F. Fretch, was convicted of several offenses, based on evidence that he knowingly exposed his penis and masturbated in the presence of G.G., a female minor. Defendant brings four main contentions on appeal: (1) the trial court erred in admitting other-acts evidence; (2) the evidence was insufficient to support defendant's convictions; (3) defendant's trial counsel was constitutionally ineffective in various respects; and (4) the trial court was not authorized to sentence defendant to a two-year period of probation to run consecutively to a 360-day term of imprisonment. We reject all four contentions and affirm.

75 N.E.3d 335

¶ 2 I. BACKGROUND

¶ 3 A. Rulings on Other-Acts Evidence and the Parties' Stipulation to a Partly Closed Trial

¶ 4 On July 20, 2014, the State brought a three-count misdemeanor complaint against defendant, charging him with sexual exploitation of a child (720 ILCS 5/11-9.1(a)(2) (West 2014)), public indecency (720 ILCS 5/11-30(a)(2) (West 2014)), and disorderly conduct (720 ILCS 5/26-1(a)(1) (West 2014)). The common allegation in all three counts was that, on July 19, 2014, defendant knowingly exposed his penis to G.G. and masturbated. The disorderly-conduct count additionally alleged that defendant waved his hand at G.G. while masturbating. G.G. was 14 years old at the time of the charged offenses.

¶ 5 In advance of trial, the State filed a motion in limine to introduce other-acts evidence. In its motion, the State described two incidents that occurred prior to the date of the charged offenses. The State submitted with its motion the police reports that were generated in connection with the incidents.

¶ 6 First, the State alleged that, on May 18, 2010, defendant, who was then 29 years old, approached C.K., a female minor, at the Elmhurst Public Library. Defendant began a conversation with C.K., who was using a library computer. At his request, C.K. added defendant to her MySpace account. Defendant then sat at a nearby computer and began to send C.K. sexually suggestive remarks through MySpace. Defendant asked C.K.'s age and she replied that she was 14 years old. After learning this, defendant continued his overtures, stating that C.K. was "sexy" and asking if she would be his "sexy little girl." At that point, C.K. terminated her MySpace contact with defendant and informed the library staff of the incident. The staff in turn notified the police, who arrested defendant. During a custodial interview, defendant admitted that he might have made a sexually suggestive remark to C.K. after he learned her age. Defendant was charged with disorderly conduct. He pled guilty and was sentenced to 30 days in jail.

¶ 7 The second alleged incident occurred on July 17, 2014, two days before the charged offenses. G.G. (the victim of the charged offenses) was walking with her 13-year-old friend, S.M., from G.G.'s home to a CVS store on North Avenue in Elmhurst. As they walked, defendant drove past and blew kisses at them. Later, while G.G. and S.M. were in the backyard of G.G.'s home, they observed defendant standing outside a few houses away. Defendant blew kisses at G.G., thrust his hips at her in a "humping motion," and then placed his finger on his lips, apparently signaling G.G. to be quiet.

¶ 8 The police report detailing the July 17 incident went on to describe G.G.'s complaint on which the State based the present charges. G.G. told police that, on July 19, 2014, she was walking on the sidewalk across the street from defendant's home, which was two houses away from hers, when she observed defendant standing in his doorway. His left hand was on his exposed penis as he waved G.G. over with his right hand.

¶ 9 The State argued in its motion that the May 2010 incident was relevant as showing modus operandi . The State also contended that the May 2010 incident would have the further purpose, shared by the July 17, 2014, incident, of showing intent or absence of mistake. Elaborating, the State noted that it would present evidence at trial that defendant told police that "it was just a coincidence [that] he was masturbating as G.G. walked by." The State contended that the other-acts evidence

75 N.E.3d 336

would rebut the claim of coincidence.

¶ 10 The court heard the motion in limine on the first day of trial. Defense counsel submitted that the May 2010 incident was too dissimilar to the charged offenses to show modus operandi . Counsel also suggested that it was premature for the court to decide whether the other-acts evidence had bearing on intent or absence of mistake, because the defense had not yet decided whether to make intent an issue in the case. Counsel explained:

"[W]e don't know quite frankly yet, based on the evidence that the State has submitted in its brief, whether or not the defendant is admitting to the conduct that's [sic ] he's being accused of or if he flat out denies it."

Accordingly, counsel asked the court to reserve ruling on whether the other-acts evidence was pertinent to intent or absence of mistake. Counsel also commented, however, that any of the other-acts evidence would "have an overly prejudicial effect as opposed to its probative value."

¶ 11 The State asked for an immediate ruling. The State anticipated that intent would be an issue at trial, with defendant arguing that he "never even saw [G.G.]" when he was masturbating. The trial court granted the motion, finding that all of the other-acts evidence was relevant to show intent. The court further determined that the prejudicial impact of the evidence would not substantially outweigh its probative value.

¶ 12 Defendant signed a jury waiver. The State then presented a stipulation from the parties that, during the testimony of G.G. and S.M., the courtroom would be closed to spectators except for the parents of the two minors. The court confirmed with defense counsel that the defense was so stipulating. The court restricted the courtroom as agreed during G.G.'s and S.M.'s testimony.

¶ 13 B. Other-Acts Evidence at Trial

¶ 14 C.K. testified that, at about 2 p.m. on May 18, 2010, she was at the Elmhurst Public Library. She was 14 years old at the time. She was accessing her MySpace account on a library computer when she noticed defendant staring at her from about six feet away. The staring made C.K. somewhat uncomfortable, and she looked away after making eye contact with defendant. Defendant approached and sat down next to C.K. He made a comment about a nearby library patron who was not wearing shoes. C.K. laughed at the remark. Defendant noticed that C.K. was on MySpace. He wrote his email address on a slip of paper and told C.K. to add him to her MySpace account. After C.K. did so, she began receiving messages from defendant. In his first message he wrote, "[Y]ou're sexy. You have sexy hips. I'm 22. How old are you?" C.K. wrote in response that she was 14. Defendant then commented that he felt that C.K. was older, perhaps 18 or 19. He asked if he could call C.K. "his sexy girl." C.K. said in reply, "I'm 14, and you're 22. That's disgusting." Defendant then wrote, "[Y]ou're sexy." At that point, C.K. felt frightened. She deleted defendant from her MySpace account, logged off the computer, and went to the front desk. The police were called, and defendant walked away. C.K. testified that no printout existed of her MySpace conversation with defendant.

¶ 15 Elmhurst police sergeant Michael Campise testified that, at about 7 p.m. on May 18, 2010, he interviewed defendant in the booking area of the police station. At the outset of the interview, defendant commented that he knew why Campise was there. Defendant then asked Campise if it was "wrong or unreasonable for a guy to check out a girl that's [sic ] wearing tight

75 N.E.3d 337

pants that shows [sic ] off her figure." Campise asked defendant his age. Defendant said that he was 29. Campise informed defendant that C.K. was only 14. Campise then asked defendant what occurred in the library. Defendant said that he sat down next to C.K. and "started some small talk" about some shoes that were under the table. C.K. invited defendant to join her MySpace account so that they could message each other. Defendant joined C.K.'s account and they began to exchange messages. Defendant admitted that some of the talk was "sexually suggestive." For instance, defendant commented to C.K. that she had "a sexy, curvy look to her." According to defendant, he and C.K. eventually broached the topic of age. She told him that she was 14, and he replied that they probably should not be talking. C.K. went to the front desk. At that point, defendant felt "terrible" about the conversation and wanted to apologize to C.K. He decided against it and left the library.

¶ 16 Campise testified that defendant initially denied making any sexual remark to C.K. after learning that she was 14. Later in the interview, however, defendant admitted that he "probably or might have" asked C.K. after learning her age if she "would be a sexy little girl."

¶ 17 S.M. was 14 years old at the time of trial (March 17, 2015). She testified that, between 1 p.m. and 2 p.m. on July 17, 2014, she arrived at her friend G.G.'s home on Columbia Avenue in Elmhurst. After a short while, the two became bored and decided to walk to the nearby CVS store to buy Silly String. The CVS was at the intersection of North Avenue and York Street. As they walked west on the south sidewalk along...