People v. Hubly, 091619 ILCA2, 2-18-0619

Docket Nº:2-18-0619
Opinion Judge:ZENOFF JUSTICE
Party Name:THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JUSTIN M. HUBLY, Defendant-Appellant.
Judge Panel:JUSTICE ZENOFF delivered the judgment of the court. Justices Jorgensen and Burke concurred in the judgment.
Case Date:September 16, 2019
Court:Court of Appeals of Illinois, Second District
 
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2017 IL App (2d) 180619-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,

v.

JUSTIN M. HUBLY, Defendant-Appellant.

No. 2-18-0619

Court of Appeals of Illinois, Second District

September 16, 2019

This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of McHenry County. Nos. 16-CM-2186 16-CM-2187 Honorable Robert A. Wilbrandt, Jr. and Joel D. Berg, Judges, Presiding.

JUSTICE ZENOFF delivered the judgment of the court. Justices Jorgensen and Burke concurred in the judgment.

ORDER

ZENOFF JUSTICE

¶ 1 Held: Defendant's convictions of battery and unlawful delivery of alcohol to a minor were affirmed. The trial court's conclusion that the State's evidence derived from a legitimate source that was wholly independent of defendant's compelled statements was not clearly erroneous. The evidence was sufficient to support the convictions on the particular counts that defendant challenged on appeal.

¶ 2 Following a bench trial in the circuit court of McHenry County, the court found defendant, Justin M. Hubly, guilty of two counts of battery (physical contact of an insulting or provoking nature) (720 ILCS 5/12-3(a)(2) (West 2016)) and four counts of unlawful delivery of alcohol to a minor (235 ILCS 5/6-16(a)(iii) (West 2016)). The court sentenced defendant to conditional discharge on the battery charges and to supervision on the delivery-of-alcohol charges. Defendant appeals, arguing that the court erred in its ruling with respect to his "motion to suppress evidence and dismiss complaints/informations." Defendant also contends that the evidence was insufficient to sustain three of his convictions. For the reasons that follow, we affirm.

¶ 3 I. BACKGROUND

¶ 4 Defendant worked as a music teacher at Crystal Lake Central High School (the school) from 2004 through 2016. In October 2016, the school's administration received information that defendant, who was 34 years old at the time, may have engaged in inappropriate conduct with former students after their graduation. Before contacting the police, the administration investigated the allegations internally. As part of that investigation, the administration asked defendant to sign what defendant calls a “Garrity notice," which refers to Garrity v. State of New Jersey, 385 U.S. 493 (1967) (statements compelled by an employer upon threat of termination may not be used against the employee in a criminal prosecution). In that notice, the administration informed defendant that his refusal to answer questions would be considered insubordination and would justify disciplinary action; his answers, however, could not be used against him in any criminal proceedings. Defendant signed that notice and then answered certain questions. After interviewing defendant, the administration continued its internal investigation before turning the matter over to the Crystal Lake Police Department, which conducted its own investigation.

¶ 5 The school's administration and the police ultimately received information that defendant kissed and/or groped two former students and that he provided alcohol to five underage former students. In case number 16-CM-2186, defendant was charged by superseding information with battery for touching Rebecca Polk's breasts sometime between June 1 and July 31, 2016. Defendant was also charged in that case with unlawful delivery of alcohol to a minor for giving Polk alcohol during the same time period. In case number 16-CM-2187, defendant was charged with battery for touching Nicole Dombrowski's thigh, kissing her neck, and/or kissing her mouth on October 7, 2016. Defendant was charged with four additional counts of unlawful delivery of alcohol to a minor in case number 16-CM-2187 for giving Dombrowski alcohol on October 7, 2016, and for giving Trevor Bryan, Katie Murphy, and Jennifer Anderson alcohol on December 30, 2015. Though never formally consolidated, the two actions were heard together during both pretrial motion practice and trial.

¶ 6 A. Motion to Suppress/Dismiss

¶ 7 Defendant filed a "motion to suppress evidence and dismiss complaints/informations" based on the Garrity notice that he signed during the school administration's investigation. The court, Judge Berg presiding, held an evidentiary hearing on defendant's motion.

¶ 8 1. The Evidence

¶ 9 The evidence showed the following. Sometime in October 2016, Amy Rzepecki, who was a teacher at the school, was contacted by Michael Penza, a former student. Penza told Rzepecki that he had been at defendant's house the previous weekend, that defendant gave him alcohol, and that "there was inappropriate kissing and touching." Penza also informed Rzepecki that defendant engaged in the same kind of behavior with Dombrowski the previous summer. Rzepecki relayed this information to the school's assistant superintendent of human resources, Randy Davis.

¶ 10 On October 19, 2016, defendant met with Davis, Steve Olson (the school's principal), and a union representative. Davis asked defendant to sign the following Garrity notice, which was entitled "Notice to Employee Re: Investigation": "As your current employer, Community High School District No. 155[ ] has the right to require you to participate in its investigation of your alleged misconduct. Furthermore, because your answers to some of the questions we will ask you today are potentially self incriminating, we have a duty to advise you that you may be eligible for immunity from criminal prosecution on the basis of your answers. Stated another way, nothing you say in this interview can be used against you in any criminal proceedings. However, having been given immunity, you are hereby warned that because of that immunity, you may not refuse to answer the questions on the ground that the answers may incriminate you. Accordingly, if you refuse to answer the questions, your refusal will constitute insubordination, and you will be subject to discipline up to and including your dismissal."

Defendant signed this form, thereby indicating that he "acknowledge[d] receiving the above notice and warning of [his] limited immunity rights."

¶ 11 According to Davis, he first asked defendant during the October 19, 2016, meeting if he had former students at his house on the night of October 7. Defendant answered "yes" and indicated that Dombrowski was at his house. Davis then asked if there was any kissing or inappropriate touching. Defendant answered "yes." Davis asked if there was alcohol present. At that point, the union representative stopped the meeting and indicated that he wished to contact the Illinois Education Association. Defendant's recollection of the October 19 meeting was substantially similar to Davis's recollection. Defendant also acknowledged telling Davis during this meeting that he had kissed Dombrowski.

¶ 12 The meeting resumed the following morning, on October 20, 2016. This time, a union representative from the Illinois Education Association was present. The evidence was conflicting as to exactly what occurred at this meeting. Davis testified that he followed up with the same final question from the day before, asking defendant whether alcohol was present and if he gave alcohol to "this person" (presumably, Dombrowski). According to Davis, defendant responded that alcohol was present but that he did not give alcohol to "the person." On direct examination, Davis maintained that he did not ask defendant any further questions on October 20. On cross-examination, however, Davis indicated that he also asked defendant whether Penza had been to defendant's house on October 7 and whether there was any inappropriate contact. Davis testified that defendant acknowledged that Penza had been to his house, denied inappropriate contact, and said that Penza had supplied the alcohol. Apart from talking to defendant about Dombrowski and Penza, Davis did not recall asking defendant for names of other people who had visited his house.

¶ 13 Defendant's recollection of the October 20, 2016, meeting differed from Davis's recollection. According to defendant, Davis recapped the questions from the previous day and then asked him if there was any sexual activity that occurred on October 7 with Dombrowski. Defendant testified that he answered "yes" but insisted that nothing more than kissing had occurred. Defendant claimed that Davis then asked him if other former students had been to his house, at which point defendant began to "name some names." Although defendant believed that he provided additional names, he specifically recalled telling Davis about Allysa Teeter, Maggie Gomberg, Penza, Tanner Larkins, and Polk. Defendant testified that Davis asked him if he had any sexual...

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