2019 IL App (3d) 170522
Ill. App. Ct.2019Background
- Defendant Christopher Kitch was charged with two counts of predatory criminal sexual assault of a child and two counts of aggravated criminal sexual abuse for touching the vaginas of J.M. (age 12) and B.M. (age 7) while they slept on a couch in November 2016.
- The State moved in limine to admit Kitch’s two 2003 convictions for aggravated criminal sexual abuse under Ill. R. Evid. 609 and 725 ILCS 5/115-7.3; the court granted the motion.
- Trial evidence included CAC interviews and testimony from both victims, their mother (Elizabeth), Michelle (a housemate who had a sexual relationship with defendant), and law enforcement; both children consistently identified the location of the contact and described being touched while others were present.
- Prior convictions (2003) involved similar facts: victims aged 6–7, abuse occurring at night or on a couch, alcohol use, and exposure/touching of genitalia; defendant had served prison time and was released in 2010.
- The trial court convicted Kitch of predatory criminal sexual assault (Count I) and one count of aggravated criminal sexual abuse (Count IV) and sentenced him to 30 years plus a consecutive 10-year term.
- On appeal Kitch argued (1) the court erred admitting prior-offense evidence, (2) the evidence was insufficient to prove sexual arousal/gratification and victims’ testimony was not credible, and (3) the predatory sexual assault statute is unconstitutionally vague as to “contact.”
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of prior-offense evidence under 725 ILCS 5/115-7.3 | Prior convictions are probative of propensity and sufficiently similar/recent to be admissible | Prior-offense evidence was more prejudicial than probative and should be excluded | Court did not abuse discretion; prior acts were sufficiently similar and recent and probative outweighed prejudice |
| Sufficiency of the evidence (sexual gratification/arousal and credibility) | Victims’ consistent testimony and circumstances (nighttime touching, refusal by victims, exposure) support inference of sexual purpose | Testimony unreliable: J.M. has mental limitations; B.M. is a fanciful storyteller; no direct evidence of arousal | Evidence sufficient; intent can be inferred from nature of act and testimony was credible; convictions affirmed |
| Vagueness challenge to predatory criminal sexual assault statute (definition of “contact”) | Statute’s use of "contact, however slight" has a commonly understood meaning of physical touching and is not vague | "Contact" is undefined and thus unconstitutionally vague as applied to defendant | Statute not vague; courts may apply ordinary dictionary meaning (physical touching) and "however slight" fits legislative purpose |
Key Cases Cited
- People v. Donoho, 204 Ill. 2d 159 (2003) (framework for admitting other-crimes evidence and interpretation of section 115-7.3)
- People v. Cardamone, 381 Ill. App. 3d 462 (2008) (limits on volume of other-crimes evidence and prejudice concerns)
- People v. Wassell, 321 Ill. App. 3d 1013 (2001) (general similarity among sex offenses may be insufficient to admit prior acts)
- People v. Wilson, 214 Ill. 2d 127 (2005) (other-crimes evidence admissibility when defendant offers innocent construction)
- Jackson v. Virginia, 443 U.S. 307 (1979) (standard for reviewing sufficiency of the evidence)
- People v. Burton, 399 Ill. App. 3d 809 (2010) (intent to arouse may be inferred from conduct)
- People v. Balle, 234 Ill. App. 3d 804 (1992) (finding sexual purpose where touching had no innocent explanation)
- People v. Witherspoon, 2019 IL 123092 (2019) (use of ordinary dictionary meaning for undefined statutory terms)