People v. Tetter

• Decision Date: 31 January 2018
• Docket Number: Appeal No. 3–15–0243
• Citation: 121 N.E.3d 434,2018 IL App (3d) 150243,428 Ill.Dec. 22
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Kyle J. TETTER, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2018 IL App (3d) 150243
121 N.E.3d 434
428 Ill.Dec. 22

The PEOPLE of the State of Illinois, Plaintiff–Appellee,
v.
Kyle J. TETTER, Defendant–Appellant.

Appeal No. 3–15–0243

Appellate Court of Illinois, Third District.

Opinion filed January 31, 2018
Modified Upon Denial of Rehearing July 20, 2018

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

428 Ill.Dec. 24

¶ 1 Defendant, age 21 at the time, began a relationship with S.K. who represented herself to be 18. A jury found that defendant continued this relationship after learning S.K. was 16 and convicted him of aggravated criminal sexual abuse ( 720 ILCS 5/11–1.60(d) (West 2012) ). After his conviction, the trial court sentenced defendant to 180 days in county jail, 4 years' sex offender probation, and mandatory lifetime sex offender registration.

¶ 2 On appeal, defendant seeks a new trial; he alleges the trial court erred in admitting and publishing a voicemail recording during defendant's cross-examination. Defendant also raises, for the first time on appeal, a constitutional challenge claiming the Illinois Sex Offender Registration

121 N.E.3d 437

428 Ill.Dec. 25

Act (SORA) ( 730 ILCS 150/1 et seq. (West 2012) ), Sex Offender Community Notification Law (Notification Law) ( 730 ILCS 152/101 et seq. (West 2012) ), residence and presence restrictions within 500 feet of school zones or 100 feet of school bus stops ( 720 ILCS 5/11–9.3 (West 2012) ), residence and presence restrictions within 500 feet of a public park ( 720 ILCS 5/11–9.4–1 (West 2012) ), mandatory annual driver's license renewal ( 730 ILCS 5/5–5–3(o) (West 2012) ), and prohibiting defendant from petitioning to change his name ( 735 ILCS 5/21–101 (West 2012) ) impose disproportionate punishment as applied to him. We refer to these statutes collectively as "sex offender statutes" herein.

¶ 3 We affirm the trial court's evidentiary ruling regarding the voicemail recording. However, we find that defendant's lifetime subjection to the sex offender statutes constitutes grossly disproportionate punishment as applied to him. The facts underlying defendant's conviction do not suggest that he is a dangerous sexual predator who must be banned from areas near schools or public parks, or who must be monitored by law enforcement authorities and presented to the public as a dangerous sexual predator.

¶ 4 FACTS

¶ 5 On July 12, 2013, the State charged defendant with aggravated criminal sexual abuse, a Class 2 felony ( 720 ILCS 5/11–1.60(d) (West 2012) ). On October 4, 2013, defendant pled guilty in exchange for four years' sex offender probation and no jail time. On November 1, defendant submitted a motion to withdraw his guilty plea; he alleged that he did not know pleading guilty meant he would be subjected to the sex offender statutes' registration requirements and restrictions for life. Defendant's motion also alleged an affirmative defense—he reasonably believed S.K. to be 18 each time they had sex. The trial court granted defendant's motion on December 20. Defendant's trial began on January 13, 2015.

¶ 6 Sixteen-year-old S.K. testified that she registered for a social networking website called "MeetMe" sometime after July 2012. S.K.'s MeetMe profile represented to other users that she was 18. Defendant was 21 when she "met" him on MeetMe.

¶ 7 Defendant and S.K. also communicated through another online application called "Kik." They met in person for the first time in November 2012. Defendant picked S.K. up at her high school and took her home. Defendant asked S.K. to be his girlfriend, and she agreed.

¶ 8 They began having consensual sex in defendant's car after a few meetings in November 2012. Although she could not remember the date, S.K. testified that she and defendant had sex once at her house when her parents were away; she did not consent to this sexual encounter.

¶ 9 Sometime in January or February 2013, S.K. left defendant a voicemail wherein she referred to herself as "a stupid 16–year-old." She left the voicemail after learning that defendant still communicated with his ex-fiancée. S.K. testified that defendant responded to this voicemail with a text message, but she could not recall the substance of the message.

¶ 10 On March 26, 2013, S.K. ran away from home. She testified that she argued with her parents about photographs on her phone that she sent to defendant. Her parents confiscated her phone, and her mother told her to leave the house. S.K. then called defendant from Kmart to tell him she ran away. Police picked her up from the Kmart after she spoke with defendant.

121 N.E.3d 438

428 Ill.Dec. 26

¶ 11 S.K. stated she and defendant had sex several times between March 26 and late April 2013. On June 8, 2013, an ultrasound confirmed that S.K. was approximately two months pregnant. When she informed defendant that she was pregnant, he asked her to choose him or the baby—her daughter was born December 31, 2013.

¶ 12 S.K.'s mother testified that she learned defendant was 21 after S.K. began meeting with him in November 2012. S.K.'s parents did not want her dating until she turned 18 and forbade her from having a relationship with defendant.

¶ 13 In December 2012, S.K.'s mother accompanied her to a local mall where she rang bells for the Salvation Army. When defendant arrived to see S.K., her mother confronted him. She informed defendant that her daughter was 16 and threatened to "ruin" him if he touched her. S.K.'s mother reported defendant to the police soon after learning S.K. was pregnant in June 2013.

¶ 14 Detective Robert Mason testified that he arrested defendant on July 2, 2013. Defendant voluntarily turned over his cell phone and agreed to videotape his interview at the police station. Mason sent defendant's cell phone to the United States Secret Service Chicago Electronic Crimes Division (Secret Service) for forensic analysis. The Secret Service provided Mason with a thumb drive containing the evidence from defendant's phone. The trial court admitted the thumb drive into evidence, and the jury viewed defendant's videotaped interview.

¶ 15 During the interview, defendant stated that he believed S.K. was 18 based upon her MeetMe profile representation. He denied ever picking S.K. up from school; he claimed that they always met at a Subway restaurant. Defendant estimated that he and S.K. had sex approximately five or six times—always consensual and never at her house. He admitted to having sex with S.K. once after he learned that she was 16.

¶ 16 At trial, defendant testified on his own behalf. He stated that he lied about having sex with S.K. after learning her age during the police interview because he was scared and disoriented. He claimed that he never knew S.K. was 16 until he spoke with police on March 26, 2013. He never had sex with S.K. thereafter.

¶ 17 During cross-examination, the State played the February 2013 voicemail recording in which S.K. referred to herself as "a stupid 16–year-old." Defendant objected to the recording; he alleged the State failed to establish proper foundation. The State pointed out that S.K. testified during the prosecution's case-in-chief that she left the voicemail on defendant's phone. The State also assured the trial court that S.K. and Detective Mason would provide additional foundation on rebuttal. The trial court allowed the State to play the recording.

¶ 18 S.K. and Detective Mason testified during the prosecution's rebuttal. S.K. heard the recording during defendant's cross-examination; she identified her voice and confirmed that the recording accurately portrayed the voicemail she left on defendant's phone. She stated that she left the voicemail after an orchestra concert in February 2013. Although Mason identified the Secret Service thumb drive, he could not identify the Secret Service's methods used to extract defendant's cell phone information or verify the thumb drive's contents.

¶ 19 At the close of evidence, defense counsel moved for a mistrial. He alleged that the State failed to establish adequate foundation for the voicemail before or after playing it during defendant's cross-examination. Although S.K. identified her voice

121 N.E.3d 439

428 Ill.Dec. 27

and verified that she left the voicemail on defendant's phone, defense counsel argued that the State failed to prove that the information on the thumb drive, including the voicemail, came from defendant's phone. The trial court denied the motion. The jury found defendant guilty.

¶ 20 At the sentencing hearing, the trial court heard and denied defendant's posttrial motion. Defendant's presentence report showed that he had no prior criminal convictions, other than minor traffic violations. The presentence report also contained defendant's sex offender psychological evaluation. The Kankakee County court referred defendant to Dr. Simone, a licensed clinical psychologist, for the evaluation. Simone determined that defendant presented a low risk to reoffend and recommended outpatient sex offender counseling. During the evaluation,...