Petition for Writ of Certiorari — Davis v. Illinois

Supreme Court brief1995

Ask Donna

What actually matters in this document.

Text

Supreme Court, u.8.

™~ -ia. & D

‘is

~~ 941197 JAN 3 1995

NPEEIOE OF THE CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1994

LLOYD R. DAVIS,

¥. Petitioner,

PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

On Petition for a Writ of Certiorari

to the Illinois Appellate Court

Second Judicial District

PETITION FOR A WRIT OF CERTIORARI

JED STONE

Counsel of Record

The Law Offices of

Jed Stone, Ltd.

820 W. Jackson Blvd.,

Suite 310

Chicago, Illinois 60607

(312) 993-1144

December 27, 1994

QUESTIONS PRESENTED FOR REVIEW

I. WHETHER THE PETITIONER’S CONVICTIONS

FOR ACTS AGAINST C.L. CAN STAND WHERE

THOSE CONVICTIONS ARE BASED WHOLLY ON

THE COMPLAINANT’S PRIOR INCONSISTENT

STATEMENTS WHICH HE REPUDIATED AT TRIAL,

AND THEREFORE FAILED TO ESTABLISH PASTOR

DAVIS’ GUILT BEYOND A REASONABLE DOUBT IN

VIOLATION OF THE DUE PROCESS CLAUSES OF

THE FIFTH AND FOURTEENTH AMENDMENT.

Il. WHETHER THE PETITIONER’S DUE PROCESS

RIGHTS WERE VIOLATED BY THE ADMISSION OF

IMPROPER PROPENSITY EVIDENCE WHICH WAS

IRRELEVANT AND PREJUDICIAL AND SHOULD

NOT HAVE BEEN ADMITTED OR CONSIDERED BY

THE TRIAL COURT.

TABLE OF CONTENTS

PAGE

onion Pieanted 53, 2? mts i

sie ge bert s:«--an os. ,- CCE ay eee: iii

Citation to Opinion Below .................._. 1

CUNO atin ha 46s Wewcnwyinune

Constitutional Provisions Cr ee 2

Statement of the Case ...................._. 3

Statement of Presentation of the meee Tc 14

Reasons for Granting the Writ.............__. 15

1. Certiorari should be granted in order to decide

important questions of constitutional

magnitude which should be settled by this

Commit 205s. JAIICLUESS, a, ars os 15

A. The State failed to establish Pastor

Davis’ guilt beyond a reasonable doubt

in violation of the Due Process clauses of

the Fifth and Fourteenth Amendments. . 15

B. Pastor Davis’ Due Process rights and

right to a fair trial were violated by the

admission of improper propensity

evidence which was irrelevant and

prejudicial and should not have been

admitted or considered by the trial court 16

vpn titi ae 21

Opinion of Second District Appellate Court

ciceemmiat ee A-1

ill

TABLE OF AUTHORITIES

STATUTES:

i en dae ne i 2

STATE STATUTORY PROVISIONS:

yp Bike Fe SUS G6) |. ae 3

Admissibility of Prior Inconsistent Statements:

In all criminal cases, evidence of a statement made by a

witness is not inadmissible by the hearsay rule if

(a) the statement is inconsistent with his testimony at

the hearing or trial, and

(b) the witness is subject to cross-examination concern-

ing the statement, and

(1) was made under oath at trial, hearing, or other

proceeding, or

(2) narrates, describes, or explains an event or con-

dition of which the witness had personal knowl-

edge, and

(A) the statement is proved to have been writ-

ten or signed by the witness, or

(B) the witness acknowledged under oath the

making of the statement either in his testi-

mony at the hearing or trial in which the

admission into evidence of the prior state-

ment is being sought, or at trial, hearing,

or other proceeding, or

rately recorded by a tape recorder, video-

tape recording, or any other similar

electronic means of sound recording.

Nothing in this Section shall render a prior inconsistent

statement inadmissible for purposes of impeachment be-

cause such statement was not recorded or otherwise fails

to meet the criteria set forth herein.

CASES:

In Re Winship, 90 S.Ct. 1068 (1970)........... 16

Jackson v. Virginia, 443 U.S. 307 (1979) ....... 16

Cage v. Louisiana, 498 U.S. 39 (1990) ......... 16

People v. Tate, 87 Ill.2d 134 (1981) ............ 18

Edwards v. South Carolina, 372 U.S. 229 (1963) . 19

Thompson v. City of Louisville, 362 U.S. 199

GN ie Kian et ks A lan 9 Pees bees + 19

Garner v. Louisiana, 368 U.S. 157 (1961)....... 19

Washington v. United States, 357 U.S. 348 (1958) 19, 20

Montana v. Kennedy, 366 U.S. 308 (1958)....... 20

NO.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1994

LLOYD R. DAVIS,

¥. Petitioner,

PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE STATE OF ILLINOIS

APPELLATE DIVISION, SECOND DISTRICT

Petitioner, Lloyd R. Davis, respectfully prays that a writ

of certiorari issue to review the judgment and opinion of the

Appellate Court of the Second District of Illinois, entered in

this proceeding on March 25, 1994. The Illinois Supreme

Court denied leave to appeal on October 6, 1994.

OPINION BELOW

The opinion of the Appellate Court of the Second Dis-

trict of Illinois appears in Appendix A. The order denying

Mr. Davis’ petition for leave to appeal to the Illinois Supreme

Court entered on October 6, 1994 is Appendix B.

JURISDICTION

The judgment of the Appellate Court of the State of

Illinois, Second District, affirming Pastor Davis’ conviction

in part and reversing in part was entered on March 25, 1994.

The order of the Illinois Supreme Court denying leave to

appeal was entered on October 6, 1994. This petition for writ

of certiorari was filed within 90 days of the latter date. This

Court’s jurisdiction is invoked under 28 U.S.C. § 1257.

CONSTITUTIONAL PROVISIONS INVOLVED

U.S. Constitution, Amendment V:

No person shall be held to answer for a capital, or

otherwise infamous crime, unless presentment or indict-

ment of a Grand Jury . . . nor shall any person be subject

for the same offence to be twice put in jeopardy of life or

limb, nor shall be compelled in any criminal case to be a

witness against himself, nor be deprived of life, liberty or

property, without due process of law . . ..

U.S. Constitution, Amendment XIV:

.. . No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the United

States; nor shall any State deprive any person of life, liberty,

or property, without due process of law .. ..

STATEMENT OF THE CASE

This is a case about homophobia. It is a case about

power and the abuse of power. But more, it is the prosecution

and incarceration of an innocent minister whose ministry

angered local politicians and threatened business as usual.

The admission of the so-called other crimes evidence of 31

years cannot be understood without also discussing the ram-

pant homophobia that permeated the trial and sentencing.

Pastor L.R. Davis is the head of the Christian Fellow-

ship Church, a world-wide ministry headquartered in

Waukegan, Illinois with churches in Waukegan; Norfolk, Vir-

ginia; Fort Lauderdale, Florida; San Diego, California; and

Sri Lanka; and fellowship groups in approximately a dozen

other states. He was charged in a 27-count indictment filed

September 4, 1991, with committing various homosexual

acts against two named complainants, A.C. and C.L., both

under 17 at the time of the complained-of acts, and with child

pornography. (C. 1-74) Shortly before trial and at the trial

itself, C.L. recanted his accusations against Pastor Davis.

However, the trial court allowed C.L.’s prior written and

videotaped statements to authorities, in which he alleged

that the defendant had committed acts of anal and oral sex

with him, to be admitted as substantive evidence under 725

ILCS 5/115-10.1 (1992).

C.L. testified at trial that he, A.C., and another individ-

ual named Jesse Escobar had decided to bring false accusa-

tions of sexual misconduct against the petitioner. Prior to

making these accusations, they had heard rumors of homo-

sexual activity in the Christian Fellowship Church. Two

other Mexican-Americans, Augustine and Cecelie Fregosa,

owned a building in Mexico that was rented to the church.

The Fregosas wanted to oust the church and break the lease.

They advised the three boys that they could make a lot of

money by claiming the defendant had sexually molested

them. (R. 1459-1475) C.L. testified at trial that he had seen

A.C. in January of 1992 and told A.C. he was dropping every-

thing, but that A.C. responded, “‘Not me. I got a special

lawyer and will get a million dollars.” (R. 1542)

A.C., the other complainant, testified that he first met

Reverend Davis and two other church members in Tijuana,

Mexico in the summer of 1987, when A.C. was 13 and work-

ing as a salesperson in a shop along Revolucion Avenue. (R.

269-274) In a sworn statement given by A.C. in his civil suit

against the pastor and the church, A.C. testified that he first

met Pastor Davis after he was already a member of the

church and living in San Diego. He remembered this first

meeting because the “‘whole church was making a big deal”’

about the pastor’s impending visit. (Deposition, March 18,

1993, p. 42) A few days or a week after this meeting, A.C.

decided to be baptized into the church. (R. 274) Sometime

later that summer of 1987, A.C. moved into a home owned by

the church in San Diego and began attending school in Cali-

fornia. (R. 279-282)

A.C. stated that during the several months he lived in

San Diego, Davis visited the San Diego church two or three

times. During these visits, A.C. said, Davis would talk to A.C.

about masturbation. A.C. stated that Davis talked about

masturbation, “‘the first day he saw me. I mean not exactly

the first day but I mean the first time, you know, like around

the first time he visited down there .. .’. A.C. claimed that

Davis would call A.C. to his office and ask, ‘‘Do you mastur-

bate?’’ and things like that, and A.C. would say “‘no.’’ Then

Davis would ask, ‘“What would you do if I caught you mastur-

bating in the bathroom?”’, and A.C. would respond, ‘‘Noth-

ing.”’ The defendant would then say, “‘I’ll throw you a towel,”’

or something. (R. 284-287) A.C. stated that after a period of

time, while Davis was asking him about masturbation, the

defendant would hold A.C.’s leg or grab his knee, or put his

hand on A.C.’s crotch over his clothes and say, ‘Do you

mind?” (R. 289) A.C. said he thought Davis was just “‘test-

ing” him. (R. 290-292)

A.C. testified that around July of 1988 he flew up to

Chicago with Davis and stayed at the church office on

O’Plaine Road in Waukegan for the next few months. (R.

295-300) He stated that while he and Davis were in the

church office, the defendant would talk to him about sex and

kept asking about masturbating. Shortly before a planned

church conference in 1988, the defendant was scheduled to

travel to Norfolk, Virginia, and asked A.C. if he wanted to go

with him. A.C. said yes. According to A.C., Davis asked, “‘Are

you going to put up with me?”’, and the witness said, ‘Yeah,

why not?” Davis then said, ‘Well, I don’t think I will be able

to behave. Do you really want to go?’’, and A.C. reiterated his

desire to go. (R. 308-309) A.C. stated at that point Davis

asked him if he, A.C., wanted to masturbate with Davis, and

then pulled A.C.’s pants down and put his hand and mouth

on A.C.’s penis. A.C. stated that after he, A.C., ejaculated,

Davis took paper towels out of a drawer in his desk and gave

them to A.C. to clean himself, and then said, ‘God forgive

me.”’ (R. 311-315)

A.C. claimed that the second incident of sexual conduct

between him and the defendant took place a day or two later

in the same office and that basically the same thing hap-

pened, except that Davis took off his own clothes and had

A.C. hold him. A.C. stated that, about the first time after it

happened, Davis told him that what happened was not wrong

because it kept you from having sex with other women, and

that it was just like “getting off.’’ (R. 320-322) On the third

occasion, A.C. claimed, Davis brought another church mem-

ber, Chuck Thompson, into the room and, in Thompson’s

presence, while Davis was only in his underwear and A.C.

was in his pants but no shirt, Davis kept grabbing for A.C.’s

crotch and butt. A.C. stated to the prosecutor, ‘‘In case you

were wondering .. ., I was on my back and turned around, in

case you are wondering then he grabbed both places at the

same time.”’ (R. 330-332) A.C. stated that he got up and left

the room because he was embarrassed when Davis started

grabbing for him in front of Thompson. (R. 332)

A.C. testified that the first act of anal intercourse oc-

curred shortly before he and Davis went to Norfolk. He said

that the defendant laid out pillows on the floor in the office

and after engaging in oral sex with A.C., put vaseline on

A.C.’s penis and on his own anus, and instructed A.C. to

perform anal sex on him. During the act, A.C. testified, the

petitioner told A.C. that it was hurting, so A.C. stopped and

Davis then directed A.C. to kneel on a chair and performed

anal sex on A.C. Afterwards, the petitioner again said, ‘‘God

forgive me,” and both individuals cleaned themselves up

with paper towels, the petitioner also putting some kind of

stuff from a bottle on his penis after wiping himself with a

paper towel. (R. 333-343)

A.C. stated that the acts he described happened many

times over the course of the summer. (R. 343-344) He also

stated that, every time something would happen, both he and

Davis would ejaculate. (R.372) In a sworn deposition, A.C.

stated that Davis was an ‘‘old man’”’ who could not achieve or

maintain a full erection. According to A.C., on some occa-

sions, other church members were present and engaged in

group sex activities where Davis would tell the others what

to do. (R.343-357) A.C. stated that the largest number of

people he ever saw in one room at any one time was when

approximately seven people were in Davis’ office on O’Plaine

Road, when it “looked like this big naked party.” (R.375-377)

A.C. stated that during his trip to Norfolk, he stayed in a

hotel room with David and, while there, he, Davis, and

Daniel Lantis, the pastor of the San Diego church, engaged in

anal sex. (R.383-388)

A.C. claimed that, when Davis was going to engage in

sexual activity, he would say, “I am going to stick it in you.”

(R.386) He stated that Davis also made comments about

homosexuality, saying that homosexuality was a sin to death

but that what was happening between him and the others

was not homosexuality but was just like getting off. (R.389)

A.C. identified some physical characteristics of Davis,

stating that the defendant wears a toupee and has false

teeth, wears huggers as underwear, is uncircumcised, and

has brown and white pubic hair. A.C. said that Davis also had

some kind of purple rash by his inner thigh area near his

crotch, and white spots or his legs. (R.391-395) He stated

that Davis would not take his toupee off during sex, but

would take it off and also remove his false teeth before he

went to sleep. (R.390-395)

A.C. returned to San Diego in September of 1988.

(R.397) In the summer of 1989, while in San Diego, A.C.

wrote a letter stating that there was no homosexual activity

going on in the church. (R.411) He stated that Pastor Lantis

told him what to write in the letter. (R.420-424) A.C. also

participated in the making of an audiotape on June 23, 1989.

On the tape, several members of the church identified them-

selves and stated that no homosexual activities were taking

place in the church. During his portion of the tape, A.C.

stated that he had been in the church for two years and had

been hearing stuff people were saying against Pastor Davis

after another pastor (Scott Morehouse) left the San Diego

church. A.C. then stated:

I want to say that all the stuff being said is not true.

I know it for a fact, because last summer of ’88, I

was up in Chicago and I was spending every day

with Pastor Davis. He was like taking care of me.

Everywhere he went, I went with him, and I know

everything he did, because I was with him, every-

where he went. I never saw any such thing as homo-

sexuality in this church, and there is not any such

thing as that.

A.C. acknowledged that he had filed a civil suit in California

against Pastor Davis and the Christian Fellowship Church,

in which his lawyer was asking for over two million dollars.

(R.426-428, 453) He said it was his uncle’s idea to find a

lawyer to file the suit, because his uncle told A.C. he himself

had been abused when he was young. (R.426-428)

In July of 1989, shortly after the audiotape was made

and the letter was written, A.C. asked to return to Chicago

and went there for one week. (R. 366, 1979-1984) Before he

left, he and Daniel Lantis spoke with A.C.’s parents about

A.C. returning, because his parents had read articles in the

newspaper about allegations of homosexuality in the church

and did not want A.C. to go. A.C. told his parents the allega-

tions were all lies and they agreed to let him return.

(R.1979-1981) A.C. stated that no sexual acts took place dur-

ing the one-week period he was in Illinois in July, 1989.

(R.366)

Approximately one month after returning from his trip

to Chicago, A.C. made allegations of sexual misconduct to

Wayne Chumbley, an agent with the Department of Immi-

gration and Naturalization. (R.457) He denied that he spoke

to Cecilia Fregosa at the end of July, 1989 about making

accusations against Davis, but acknowledged that prior to

speaking to Chumbley, he had read a number of newspaper

articles discussing allegations of homosexual activity in the

church. (R.539-600)

When A.C. was questioned on cross-examination as to

whether he was friends with Patti Neill and her husband,

San Diego residents who were exmembers of the Church, he

stated: ‘““Well, I wouldn’t say they are good friends because |

don’t really talk to them that much but, yeah. If I see them,

I'll say hi.” (R.549) He acknowledged that his television in-

terview regarding his allegations against Pastor Davis which

had aired on ABC’s Prime Time Live had been taped at the

Neill home, but said that Patti Neill had not urged him to

make charges against the petitioner. (R.550-552) A.C. stated

in a sworn deposition that he had gone to the Neill’s home

“because we were all working together, you know.” He also

stated that Patti Neill had provided him with newspaper

articles regarding the church. (March 18, 1993 deposition,

pp. 80-83)

Over the continuing objections of the defense, the trial

court allowed the State to introduce at trial the testimony of

eight other witnesses regarding consensual homosexual acts

they allegedly engaged in with the petitioner, and sometimes

other members of the church, while all of them were adults.

(R.652-1340) None of these witnesses ever testified to ever

having seen the petitioner engage in homosexual acts with

A.C. or any other minor, and some specifically stated that

they had never seen such activity. (R.705-707, 1317) Each

witness’ description of the petitioner’s leg and groin area

varied somewhat, some witnesses stating they observed a

rash near the petitioner’s groin (R.1036, 1169), and others

stating they had never noticed any such rash or mark. None

of these witnesses testified to seeing white spots on the peti-

tioner’s legs. (See, e.g., R. 1100) The petitioner’s pubic hair

was described as grayish (R. 692, 1338), or grayish-black

(R.1167) Two witnesses agreed that, a lot of times, Davis

would sit around in his underwear, talking to people or

watching TV. (R.900, 1266)

Several witnesses testified that Davis spoke to them

about masturbation and homosexuality, and told them that

masturbation was normal and that acts between men were

not homosexuality if there was no lust between the men.

(R.659, 684, 839, 1152, 1238, 1295) The witnesses testified to

various statements the defendant would use prior to or when

initiating sexual acts, such as, ‘“‘Do you want to engage?“‘; “‘Is

it okay if I get you?’’ (R.680); ‘‘I am going to tear into that tail

tonight.” (R.912); “‘Can’t you want to have sex?’’ (R.1027);

“T want to stick you.” (R.1151); “What if I get you in the

butt?”; or “What if I grab you?” (R.1292) The only other

evidence regarding the statement ‘“‘God forgive me,”’ came

from defense witness Jesse Escobar who, prior to recanting

his allegation that the petitioner had sexually molested him,

had told authorities that after engaging in sexual acts with

the petitioner, he, and not the petitioner, would say, ‘“‘God

forgive me.” (R.1799) Escobar also stated that Augustine

Fregosa had made appointments for him A.C. and C.L. to

meet with Agent Chumbley. In December of 1991, both C.L.

and Escobar went to see an attorney in Mexico, Pablo

Morales, who had represented Daniel Lantis on accusations

of sexual misconduct made against him which had ultimately

been dismissed by a Mexican court. C.L. and Escobar told

Morales that their allegations regarding the petitioner were

a lie and subsequently made a video-taped statement ac-

knowledging the falsity of these accusations. (R.1893-1898)

The court also allowed the State to introduce at trial the

testimony of Bill Decker. Decker stated that during the late

sixties, when he was fourteen year old, he and his family

lived in Pacohontas, Arkansas, and attended the United Pen-

tecostal Church where the petitioner was the pastor. He and

his family became close friends with the petitioner and his

family, and Decker and his brother sometimes stayed at the

Davis home overnight.

The witness testified that on December 24, 1969, he had

attended a Christmas Eve mass at a Catholic Church with

Pastor Davis, and it was decided that he should spend the

night at the Davis home because the weather was bad. He

and Davis stayed in an empty bedroom which contained two

twin beds. Decker alleged that, while the two of them were in

this room together, Davis asked Decker to massage his back

and chest and that, while Decker did so, Davis put his had on

Decker’s inner thigh and cupped his genitals, over his

clothes. (R.1393-1399)

In response to the prosecutor’s question as to whether

the petitioner had ever had a conversation with him about

homosexuality, Decker stated that on one occasion when he

and Davis were driving through the country, Davis asked

Decker if he had ever had a homosexual experience. Decker

said no, and Davis switched to another topic. (R.1405)

At the close of the State’s case, the trial court granted

the petitioner’s motion for a judgment of acquittal on Counts

X, XIV, and XVIII, all alleging child pornography. (C.550)

At the close of all the evidence, the trial judge stated

that he had allowed in testimony regarding the other homo-

sexual acts to show a common plan, scheme or design of the

petitioner; his identity; and the lack of a conspiracy against

him. He acknowledged that there were ‘‘great dissimilari-

ties’ in the testimony of the witnesses but stated that there

were also ‘‘common threads.’’ The common threads he iden-

tified were: the petitioner’s alleged conversations regarding

masturbation and regarding sexual activities between men

not being wrong if there was no lust between them; testi-

mony that the petitioner kept pillows or cushions in a closet

which some witnesses stated the petitioner had used to lie on

during sexual acts; testimony that a chair was sometimes

used to kneel on while sexual acts took place; the alleged

threats of death or damnation if someone told or left the

church; testimony that the petitioner kept lotion and paper

towels in his desk drawer which were used before and after

the sexual acts; and the age of Billy Decker. (R.2140-2141)

Notwithstanding C.L.’s recantation of his allegations against

the petitioner, the trial court found that C.L.’s video-taped

statement was credible and that C.L. was a liar.

(R.2141-2144) the court found the petitioner guilty of ‘‘each

and every count” of the indictment. (R.2146)

A sentencing hearing was held August 14, 1992. A pre-

sentence report reflected that Pastor Davis was born Au-

gust 8, 1935, and had no prior criminal record. (C.569-572)

Hundreds of letters in support of Pastor Davis were submit-

ted to the court, from members of his church, members of the

community, and ministers from other churches, and several

witnesses also testified on his behalf. (R.2287-2354) The

State presented in aggravation evidence regarding homosex-

ual acts allegedly occurring between the petitioner and sev-

eral other adults who had not testified at trial. (R.2188-2240)

Preliminary to imposing sentence, the court stated:

“The burning question that’s been presented from the be-

ginning in this case is, is this man a minister or a monster? A

pastor or a pedophile’ ’* The phrase, ‘“‘Minister or monster?”

had been used by ABC in its trailers advertising its upcoming

Prime Time Live segment on the petitioner. The judge then

sentenced Davis to a number of consecutive terms totaling

31 years, as follows: 12 years on Count I of the indictment

(alleging and act of oral sex between the petitioner and A.C.);

12 years on Count II (alleging an act of anal sex between the

petitioner and A.C.); to be served consecutively to Count I;

and 7 years on Count XXI (alleging an act of anal sex between

the petitioner and C.L.), to be served consecutively with the

sentences on Counts I and II. He imposed 7 year sentences on

all remaining Class 1 charges (which included the remaining

child pornography counts), to run concurrently with the last

consecutive sentence, and 5 year sentences on all remaining

Class 2 charges, also to run concurrently with the last con-

secutive sentence. (R.2412-2419)

On appeal to the Appellate Court for the Second Judicial

District, that Court reversed all the petitioner’s convictions

on the child pornography counts, finding the child pornogra-

phy statute to be inapplicable to the acts alleged in the indict-

ment. The Court affirmed all the other convictions and the

petitioner’s sentence. A petition for rehearing was filed

which was denied on April 28, 1994. The Illinois Supreme

Court denied the petitioner’s Petition for Leave to Appeal on

October 6, 1994.

STATEMENT OF PRESENTATION OF THE ISSUE

Petitioner, Lloyd R. Davis, argued in the State of Illinois

Appellate Court, Second District, that he was not proven

guilty beyond a reasonable doubt for acts against C.L. Also,

the petitioner argued that he was denied due process and a

fair trial by the admission of improper propensity evidence

which should not have been admitted or considered by the

trial court. These issues were raised in a post trial motion

and were denied. The Appellate Court affirmed the trial

court. These issues were similarly raised in the petition for

leave to appeal to the Illinois Supreme Court. The Illinois

Supreme Court denied the Petition for Leave to Appeal.

REASON FOR GRANTING THE WRIT

CERTIORARI SHOULD BE GRANTED IN ORDER TO

DECIDE IMPORTANT QUESTIONS OF CONSTITUTIONAL

MAGNITUDE WHICH SHOULD BE SETTLED BY THIS

COURT.

A. The State failed to establish Pastor Davis’ guilt beyond

a reasonable doubt in violation of the Due Process

clauses of the Fifth and Fourteenth Amendments.

The trial court found Pastor Davis guilty of committing

acts of anal and oral sex with C.L., and the Appellate Court

affirmed these convictions, despite the fact that prior to and

at trial C.L. repudiated his pre-trial statements, none of

which were made under oath, accusing the defendant of

these acts. Other than C.L.’s prior statements alleging that

these acts occurred, there was no evidence to support the

defendant’s convictions on these charges: the State

presented no physical evidence corroborating the witness’s

repudiated statement; there were no admissions of miscon-

duct by Pastor Davis; and there were no other witnesses who

testified to observing or participating in the alleged sexual

acts between C.L. and Pastor Davis.

The Due Process Clauses of the Fifth and Fourteenth

Amendments dictates that the state must meet the burden of

‘proof beyond a reasonable doubt” standard. Jn Re Winship,

90 S.Ct. 1068 (1970); Jackson v. Virginia, 443 U.S. 307

(1979)(applying standard to all criminal proceedings). In

state criminal trials, the Due Process clause of the Four-

teenth Amendment protects the accused against conviction

except upon proof beyond a reasonable doubt of every act

necessary to constitute the crime with which he is charged.

Cage v. Louisiana, 498 U.S. 39 (1990).

A person cannot incur the loss of liberty for an offense

without notice and meaningful opportunity to defend. “A

meaningful opportunity to defend, if not the right to a trial

itself, presumes as well that a total want of evidence to sup-

port a charge will conclude the case in favor of the accused.”

Jackson, 443 U.S. at 313. The conviction of the petitioner

rests upon nothing more than repudiated statements of a

non-credible witness; this total lack of evidence violates the

dictates of the United States Constitution.

B. Pastor Davis’ Due Process rights and right to a fair

trial were violated by the admission of improper pro-

pensity evidence which was irrelevant and prejudicial

and should not have been admitted or considered by

the trial court.

The State presented as witnesses in its case-in-chief

eight men who testified to having engaged as adults in con-

sensual homosexual acts with Pastor Davis. (R. 652-1340)

The State also presented the testimony of an individual by

the name of Bill Decker, who testified that, nearly 23 years

prior to trial, when he was 14, Pastor Davis had on one

occasion made improper advances toward him. (R.

1393-1399) Throughout the course of the trial, the defense

objected to the admission of this testimony, on the basis that

it was irrelevant testimony of misconduct by the petitioner

which was only being used to show his propensity to commit

homosexual acts. (See, e.g., R. 733-740 & R. 1421-1432) At

the close of the trial, in discussing his decision to allow this

testimony, the trial judge acknowledged that there were

“great dissimilarities” in the testimony of various witnesses,

but found that there were “‘common threads” which made it

admissible to show a common plan, scheme or design of the

defendant; his identity; and the lack of a conspiracy against

him. (R. 2138-2141) On appeal, the Appellate Court affirmed

the trial judge’s decision to admit this evidence, finding that

it was admissible to show a common plan, scheme or design

of the petitioner. (Slip op. at page 23) Since this testimony

was relevant only to establish the petitioner’s propensity to

engage in homosexual activity, the trial judge’s admission of

it completely destroyed any possibility that the issue of the

petitioner’s guilt or innocence would be fairly decided with-

out the proper consideration of this inflammatory, prejudi-

cial, and irrelevant testimony.

Throughout trial, the prosecution and court made refer-

ence to admitting this testimony in order to show a common

design or modus operandi of Pastor Davis; the Appellate

Court found it admissible in order to show common design.

Testimony by eight witnesses regarding their consensual ho-

mosexual activity with the defendant could not be admissible

under the common design exception, since the testimony of

these witnesses related to consensual sexual activity be-

tween adults, activity which is not a crime. Moreover, show-

ing that the defendant performed homosexual acts with

these individuals does not establish a motive with respect to

A.C. Finally, the testimony of Bill Decker regarding an act

which occurred more than 20 years ago can hardly be consid-

ered as part of acommon design or scheme in light not only of

the remoteness of the prior act but its dissimilarity to the

acts alleged by A.C.

The testimony of sexual acts between the petitioner and

other consenting adults was also inadmissible under a modus

operandi theory. Evidence of other acts is admissible under a

modus operandi theory only upon a showing of a strong and

persuasive similarity between the crime charged and the

other acts which establishes a substantial and meaningful

link between the two. People v. Tate, 87 Ill.2d 134, 429 N.E.2d

470 (1981). The same distinctive features, not common to

most offenses of the type at issue, must be present to estab-

lish this link. Jd. Here, the acts testified to by the other

witnesses — the use of cushions and chairs to facilitate the

sexual acts; the use of a lubricant to facilitate anal sex; the

cleaning up afterwards with paper towels — are acts generic

to homosexual activity. Moreover, a significant distinguish-

ing feature between the acts described by the other witnesses

and the acts testified to by A.C. is that all the others were

adults when these acts occurred.

In the context of this case, the finding that evidence of

other alleged homosexual activity of the petitioner was ad-

missible to show common design or modus operandi was no

less than a finding that the petitioner’s propensity to engage

in homosexual acts was admissible to show that he engaged

in the acts alleged with A.C. and C.L. The State’s Attorney

himself, in what was perhaps an unintentional, but telling,

remark acknowledged the use to which this evidence was put

when during his closing argument he commented that the

evidence of the other acts was admissible to show a common

scheme and “other known propensity-related reasons .. .’’.

(R. 2085)

With the testimony of the other witnesses stricken from

the record, a serious question arises as to whether Pastor

Davis’ conviction for the acts alleged against A.C. can be

sustained. Pastor Davis is entitled to have his guilt or inno-

cence determined without the use of improper and inflam-

matory evidence of homosexual activity between him and

consenting adults, and without the use of evidence regarding

a 23 year-old act which bore no similarity to the acts alleged

in the case at bar.

These convictions cannot be squared with the Fifth and

Fourteenth Amendment of the United States Constitution;

thus, certiorari should be granted. Edwards v. South Caro-

lina, 372 U.S. 229 (1963). This Court has granted certiorari

to review matters of evidence in cases where the decision

below seems to it to be shockingly wrong and thus to present

substantial Due Process questions. See, Thompson v. City of

Louisville, 362 U.S. 199 (1960 ); Garner v. Louisiana, 368

U.S. 157 (1961); Washington v. United States, 357 U.S. 348

(1958)(federal conviction was reversed without elaboration

because of the insufficiency of the evidence). Pastor Davis’

convictions are so totally devoid of evidentiary support as to

render them unconstitutional under the Due Process Clause

of the Fourteenth Amendment. The result reached below is

unduly harsh in its impact and should be reviewed in light of

the apparent harshness of the result — a sentence of 31

years, which amounts to a life sentence for Pastor Davis.

Montana v. Kennedy, 366 U.S. 308 (1958).

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgment and opinion of the State of Illinois Ap-

pellate Court, Second Judicial District.

Respectfully submitted,

JED STONE

Attorney for Petitioner

The Law Offices of

Jed Stone, Ltd.

820 W. Jackson Blvd.

Suite 310

Chicago, Illinois 60607

(312) 993-1144

December 27, 1994

pei ee a ee ee ey eee ee ee Te | aids

A-1

APPENDIX A

No. 2-92-1070

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

| Appeal from the Circuit

THE PEOPLE OF THE STATE | Court of Lake County.

OF ILLINOIS,

Plaintiff-Appellee, | No. 91-CF-1861

LLoyD R. Davis, Honorable

Defendant-Appellant. Christopher C. Starck,

| Judge, Presiding.

JUSTICE COLWELL delivered the opinion of the court:

After a bench trial, defendant, Lioyd R. Davis, was con-

victed of 5 counts of criminal sexual assault (Ill. Rev. Stat.

1991, ch. 38, par. 12-13(a)(4) (now 720 ILCS 5/12-13(a)(4)

(West 1992))), 10 counts of aggravated criminal sexual abuse

(Ill. Rev. Stat. 1991, ch. 38, 12-16(d), (f) (now 720 ILCS

5/12-16(d), (f) (West 1992))), and 9 counts of child pornogra-

phy (Ill. Rev. Stat. 1991, ch. 38, pars. 11-20.1(a)(3), (a)(4),

(a)(5) (now 720 ILCS 5/11-20.1(a)(3), (a)(4), (a)(5) (West

1992))). The trial court sentenced defendant to consecutive

sentences totaling 31 years in the Department of Correc-

tions. Defendant appeals, alleging (1) that the State failed to

prove him guilty beyond a reasonable doubt, (2) that the trial

court erred in allowing “‘other acts’’ testimony, (3) that the

trial court erred in finding that defendant produced a live

A-2

performance of child pornography involving a minor, and (4)

that the trial court abused its discretion in sentencing defen-

dant. We affirm in part and reverse in part.

Defendant is the head pastor or “‘bishop”’ of the Chris-

tian Fellowship Church (Church) which is based in Wauke-

gan, Illinois, and has several branches worldwide, including

San Diego, California; Norfolk, Virginia; and Tijuana, Mex-

ico. A Lake County indictment alleged that defendant partic-

ipated in various forms of sexual activity with two minors,

A.C. and C.L., while both minors were members of the

Church. Defendant waived a jury trial and his bench trial

commenced on June 22, 1992.

A.C. testified at trial that he was born June 24, 1974, in

Los Angeles, California. In July 1987, A.C. was selling goods

on Revolucion Avenue in Tijuana, Mexico, when he was ap-

proached by defendant, Scott Morehouse, Chuck Thompson,

David Armstrong, and other members of the Church. Defen-

dant and the others talked to A.C. about their church and

took him to lunch. A.C. made plans with defendant’s group to

be baptized at the San Diego branch of the Church. A.C. then

returned to work.

A.C. became friends with another boy named C.L. who

also worked on Revolucion Avenue. C.L. had already been

baptized in the Church. A.C. and C.L. eventually crossed the

border to visit the Church in San Diego where A.C. was then

baptized. A.C. moved up to San Diego during the summer of

1987 to live in a house owned by the Church. A.C. lived in the

Church house and attended school until the spring of 1988.

Defendant visited the Church in San Diego a few times

during this period. A.C. testified that defendant would call

A.C. into his office and ask him if he masturbated. Defendant

A-3

told A.C. that masturbation was not a sin because it kept one

from having sex with women and fornication was a bad sin.

Defendant would often hold A.C.’s leg close to the knee. A.C.

said that defendant grabbed A.C.’s crotch while they were at

a hotel in San Diego. A.C. said he thought defendant was

testing him.

Defendant asked A.C. if he wanted to visit the ‘“‘mother

Church”’ in Chicago. A.C. said he wanted to go because he

thought he was doing a “‘good thing for God’’ and he felt

privileged that defendant had asked him. A.C. came to

Waukegan in the summer of 1988. A.C. stayed at the Church

office on O’Plaine Road in Waukegan. Defendant continued

to talk to A.C. about sexual matters. Defendant asked A.C. if

he would like to visit the Church in Norfolk, Virginia A.C.

said yes because he thought it would be a privilege. Defen-

dant then asked A.C. if he wanted to masturbate with him.

When A.C. did not respond, defendant pulled A.C. over to a

couch, pulled A.C.’s pants down, and stroked A.C.’s penis.

Defendant then performed fellatio on A.C. After A.C. ejacu-

lated, defendant gave him a paper towel from his desk and

said “God forgive me.’”’ Defendant then took A.C. to a store

and bought him a watch.

A day or two later defendant called A.C. to his office

again. Defendant took his clothes off and produced a large

pillow from the closet which he put on the floor. Defendant

and A.C. then sat on the pillow. Defendant had A.C. hold

defendant’s penis and defendant performed fellatio on A.C.

again. On the third occasion, defendant brought another

A-4

minister, Chuck Thompson, up to the office with A.C. Defen-

dant was lying on the large pillow on the floor in his under-

wear. He repeatedly grabbed for A.C.’s buttocks and crotch in

front of Chuck Thompson but A.C. became upset and left the

room.

On another occasion A.C. was in the office with defen-

dant lying on the ground. Defendant again performed fellatio

on A.C. and then got Vaseline lotion and paper towels out

from his desk drawer. Defendant put Vaseline on his anus

and gave A.C. some to rub on his penis. Defendant instructed

A.C. to perform anal sex on defendant but A.C. was unable to

finish because defendant said it hurt him. Defendant told

A.C. to put his knees on a chair facing the back of the chair.

Defendant then applied more Vaseline ont« A.C.’s anus and

performed anal sex on A.C.

Defendant’s sexual acts with A.C. continued during the

summer. A.C. also had sex with other members of the Church

many times. Defendant was always present when this oc-

curred. A.C. said it was defendant’s idea that A.C. have sex

with Michael Carner, another Church member. Defendant

told Carner to perform oral sex on A.C. while defendant

watched and masturbated. Carner also performed fellatio on

defendant. On another occasion defendant instructed David

Armstrong, another Church member, to perform fellatio on

A.C. while A.C. did the same to Armstrong. Defendant then

performed oral sex on A.C.

A.C. testified that defendant performed sexual acts with

him at the “‘mother Church” on Belvidere Road in Waukegan

A-5

during the summer of 1988. One incident involved A.C., de-

fendant, and another man whose name A.C. could not recall.

The three men each performed oral sex on one another in the

Church office.

A.C. said that there were many incidents when several

men were present for sexual acts with A.C. and defendant.

A.C. recalled one occasion when seven or eight men were in

the office on O’Plaine Road. Defendant controlled the situa-

tion and would direct the people as to what he wanted them

to do sexually. A.C. described the scene as a “big naked

party.”

A.C. traveled to Norfolk with defendant during the sum-

mer of 1988. A.C. testified that several sexual episodes oc-

curred during this trip. On one occasion, defendant directed

A.C. to apply Vaseline and perform anal sex on Daniel Lantis,

the pastor at the Church in San Diego. Defendant watched

and masturbated during this time.

Defendant told A.C. that homosexuality was a sin, but

the acts they were performing were no different than mas-

turbation and were not sinful if there was no lust between

the men. A.C. testified that defendant wore a wig and has

false teeth. He said defendant wore white brief type under-

wear. A.C. recalled that defendant was uncircumcised and

had white and brown pubic hair. He also noted that defen-

dant had a purplish rash around his inner thigh and white

spots on his legs. Defendant never wore a condom. Defen-

dant would say, “I’m going to get ya’”’ when he refered to

anal sex.

A.C. returned to San Diego in September 1988. Defen-

dant would occasionally visit and perform sexual acts with

A.C. at the Royal Vista Hotel in San Diego. One incident

A-6

involved defendant and Armstrong. Other incidents oc-

curred at the Church-owned home on Oceanview Boulevard

in San Diego. On one occasion A.C. attempted to have anal

sex with defendant. A.C. admitted he also had oral sex with

Vernon Engler, another Church member, when defendant

was not present.

A.C. thought about leaving the Church sometime in

1989. When A.C. told defendant of his intentions, defendant

said ‘“‘God, I pray you take this sole [sic] or man off the

earth.’”’ Some members of the Church told A.C. to write a

letter stating that there was no homosexual activity going on

in the Church. A.C. refused at first but after speaking with

defendant he finally acquiesced. A.C. signed the letter, stat-

ing therein that he had not been forced to write the letter.

A.C. also made an audio tape stating he did not witness any

homosexual activity among the Church members.

A.C. returned to his house in Mexico and told several

people about the sexual incidents with defendant. C.L. in-

formed A.C. that similar acts had happened to him. C.L. told

A.C. that he was going to talk with Wayne Chumbley, an

agent with the Immigration and Naturalization Service

(INS) in San Diego. A.C. decided to go too. A.C. said he

revealed to Chumbley all the sexual incidents that were go-

ing on in the church. A.C. also gave statements to Wayne

Maxey of the San Diego district attorney’s office and to per-

sonnel at the San Diego Children’s Hospital.

A.C. denied that Cecilia Fergosa, a friend of A.C. and a

former member of the Church, told him and C.L. that they

could gain money if they accused defendant of sexual acts.

A-7

A.C. testified that it was his uncle’s idea to file a civil law suit

in California based on the sexual acts defendant performed

with A.C.

At trial, A.C. was shown a paper with his signature

stating that he would not testify against the Church. A.C.

said he wrote this because C.L. was threatening him and

trying to get A.C. to stop accusing the church. C.L. had re-

canted his allegations against the Church and maintained

that everything he said previously was untrue. C.L. also of-

fered A.C. money to make a videotape in which they would

both recant their previous testimony against the Church and

declare that they had made the accusations for money. A.C.

indicated he suffered from bleeding in his anal area but he

did not know if it was in any way related to the sexual acts

with defendant.

Scott Morehouse testified that he joined the Navy and

was stationed at Great Lakes Naval Base (Great Lakes) in

Waukegan during January 1979. He soon became a regular

visitor at the Church’s Serviceman’s Center near Great

Lakes which was where he came to know defendant. More-

house talked with defendant about opening a branch of the

Church in Norfolk where Morehouse was to be transferred

with the Navy.

Defendant visited Morehouse in Norfolk several times

while Morehouse was still involved in the Navy. Defendant

began making references that he wanted to have sexual en-

counters with Morehouse. Defendant often talked about

masturbation and said it was a natural act. Defendant and

Morehouse later engaged in sexual acts in a hotel room in

Norfolk. During defendant’s next visit six months later, he

and Morehouse engaged in sexual acts on several occasions.

A-8

These instances involved anal sex between defendant and

Morehouse. On one occasion, three other men were present |

and participated in sexual activity. Defendant would direct

the men as to the sexual acts they were to perform on each

other. Defendant used Vaseline petroleum jelly and paper

towels to clean up afterwards.

After Morehouse was discharged from the Navy, he be-

came completely involved with the Church. During a visit to

the Church in Waukegan, Morehouse engaged in sexual acts

with defendant in his Church office. Defendant would in-

quire if Morehouse “‘wanted to engage” or would ask “‘[i]s it

okay if I get ya?’’ Defendant would typically use a large

cushion placed on the floor for sexual acts. Defendant reas-

sured Morehouse that homosexual acts were not wrong as

long as it was just a “‘physical release’’ and you did not love

the man as a wife.

From 1983 to 1989, Morehouse served as pastor at the

Church in San Diego. He also had oral sex with defendant at

the Church office in San Diego on Saipan Avenue. Morehouse

testified that defendant had a hairpiece and wore dentures.

Defendant wore white brief underwear, was uncircumcised,

and had gray pubic hair. Morehouse also noticed a scar below

the beltline on defendant’s back.

Morehouse testified that defendant directed him to re-

cruit young Latino men along Revolucion Boulevard in Ti-

juana. Defendant said he wanted to train men to carry the

word of God back to Mexico. Defendant told Morehouse to

work with the boys and try to get them to come up to services

in San Diego. Morehouse specifically recalled approaching

A.C. Defendant wanted Morehouse to recruit A.C. to get him

up to San Diego. Morehouse said defendant showed A.C.

A-9

much attention and always kept A.C. near him during prayer

meetings. Morehouse never observed sexual activity between

defendant and A.C. either in San Diego or Waukegan.

Morehouse decided to leave the Church in 1989. He felt

that the sexual activity with defendant was wrong and he

also suspected that defendant had had sexual relations with

C.L. After Morehouse left the church, he wrote a letter say-

ing he respected defendant and appreciated him as his pas-

tor. Morehouse admitted that he told United Press

International, at defendant’s direction, that no homosexual

activity took place in the Church. Morehouse said he spoke

with Chumbley regarding A.C. and C.L. Morehouse said he

had an idea that defendant was abusing the boys because of

prior conversations with A.C. and C.L. in 1989.

Joseph Byron testified that he was in the Navy in Nor-

folk when he met defendant in December 1980. Bryon was

discharged from the Navy in 1982 and moved to Waukegan

because he hoped to advance in the Church. In July 1983,

Bryon was at the Karcher Hotel in Waukegan when defen-

dant approached him, grabbed his buttocks, and asked

“‘[w)Jhen are you going to let me get you right there?” Several

days later defendant summoned Bryon to his office. When

Bryon entered the office he found defendant lying on the

floor nude. Defendant removed lotion and paper towels from

his desk and told Bryon it was acceptable to relieve tension in

this manner. Upon defendant’s instruction, Bryon per-

formed anal intercourse on defendant. Defendant then asked

Bryon to lean on a chair while defendant tried unsuccessfully

to perform anal intercourse on Bryon.

Bryon had sexual relations with defendant on one occa-

sion when Dick Brand, another Church member was present.

A-10

Bryon said defendant wore white briefs and had a hairpiece.

Bryon left the Church in 1986, indicating he had lost faith in

the Church. Defendant told him to leave the Church which,

according to the Church doctrine, meant Bryon was going to

hell.

Randall Sorenson testified that he met defendant

through his brother, Rick Sorenson, who joined the church in

1975. Randall testified that in 1978 he moved into the

Karcher Hotel in Waukegan with other Church members. He

had previously been stationed at Great Lakes. Randall spent

a lot of time at the Church’s Servicemen’s Center, located

across the street from Great Lakes.

Defendant told Randall that sex between two men was

not homosexuality if there was not love involved; rather, the

act itself was just masturbation. Defendant would often talk

about sex and ask Randall “[wJhat if I get ya?” On one

occasion, defendant initiated anal sex with Randall while

using Vaseline as lubricant. Randall testified that about five

such sexual acts occurred between him and defendant.

Defendant unsuccessfuily attempted to have oral sex with

Randall on one occasion.

Randall said defendant wore white briefs and was uncir-

cumcised. He said defendant wore a toupee and had a bridge

in his mouth. Randall and Rick Sorenson contacted the Lake

County State’s Attorney’s office regarding defendant’s ac-

tions but were told that no laws had been broken. Randall

gave information to a reporter at the Waukegan News-Sun.

In 1991, Rick appeared on the television show “‘Prime Time”’

which featured the allegations against defendant.

Gerald Adams testified he entered the Navy at Great

Lakes in 1989. He was soon approached by a member of the

A-11

Church. He began attending Church services and often vis-

ited the Servicemen’s Center across from Great Lakes.

Shortly thereafter, Adams entered the O’Plaine Road office

and saw defendant and Kevin Sherri, a Church member,

lying naked on a big pillow and fondling each other. Another

Church member named Bob was also present. Defendant

told Adams to disrobe and then had Adams and Sherri per-

form oral sex on one another. Defendant directed Sherri to

have anal intercourse with Adams. Defendant placed Adams

on a chair and performed anal sex on him. Vaseline Intensive

Care Lotion was used as lubricant.

Two weeks later, Adams was summoned to the office

and performed sexual acts with defendant and Chuck

Thompson. Vaseline and paper towels were produced from

defendant’s desk drawer. Defendant said these acts were not

homosexuality as long as no love or lust was involved. Adams

had sex with defendant at least 20 times, often with as many

as four people present.

Adams said defendant wore a toupee and had false

teeth. Defendant had a purple-colored rash on his groin area

and wore white brief type underwear. Adams admitted he

wrote two letters denying that anything irregular had hap-

pened in the Church. He later told investigator Mark Pleas-

ant of the Department of Children and Family Services

(DCFS) that the letters were false. Adams admitted he had

sex with other members of the church, including Thompson,

Joe Watson, Dave Armstrong, and the Church trumpeter.

Julius Gruber testified that he was in the Navy sta-

tioned in San Diego in 1982 when he became involved with

the Church. After he was discharged from the Navy, Gruber

A-12

became involved with the Church in Waukegan. Gruber per-

formed sexual acts with defendant and Armstrong together

on two occasions. Defendant performed anal sex on Gruber

on some occasions while Gruber was balanced with his knees

on a chair. When defendant wished to have sex, he would tell

Gruber “I want to get you” or “I want to stick it to you.”

Defendant also directed Gruber to have sexual relations with

Rich Snow, Richard Brand, Dave Armstrong, Keith Verna,

Steve Kirsch, Bill Blackwell, and Mike Carner. Gruber had

sex with defendant from 120 to 150 times from 1984 until

1991. Gruber never saw defendant have sex with minors.

Gruber said defendant had grayish-colored pubic hair

and wore white briefs. He said defendant wore a toupee and

had a purplish rash on his legs and groin area.

Rick Sorenson testified that he was stationed at Great

Lakes and first met defendant in 1974. After Rick joined the

Church, defendant once kissed him on the lips at the Karcher

Hotel and asked “‘[w]hat would you do if I was to get you in

the tail?’ In 1978 or 1979, Rick was called to defendant’s

office and told to rub defendant’s back. Defendant then

rubbed Vaseline on his penis and performed anal intercourse

on Rick. Rick had anal sex with defendant for the next few

weeks on a daily basis. Rick described defendant as having

gray pubic hair, wearing white briefs, and having brown

spots on his legs.

Defendant said Rick would die a violent death if he left

the Church. Nonetheless, Rick and Randall Sorenson con-

fronted defendant about the sexual activity and left the

Church. Defendant frequently called the Sorensons after-

wards to ask whether they had told anyone about the sexual

activity.

A-13

Howard Ross became involved with the Church in 1979

while stationed at Great Lakes. Defendant had oral and anal

sex with Ross at the Karcher Hotel, the Servicemen’s Center,

and the Church office. Defendant used Vaseline as lubricant

and kept hand towels in his desk drawer to clean up. He also

testified that defendant was uncircumcised, wore white

briefs, and had a toupee. Defendant equated homosexuality

with masturbation and often directed Ross to have sex with

other male members of the Church. Ross had sex with defen-

dant over 100 times. Defendant would ask Ross “‘[w]hat if I

got you in the butt?” before sexual activity occurred.

Ed O’Claire joined the Navy in 1979 and became in-

volved with the Church in 1980. Defendant once grabbed

O’Claire’s buttocks and said “‘[w]hat if I get you right here?’’

In 1981 at the Karcher Hotel, defendant took Vaseline Inten-

sive Care Lotion from his desk drawer, applied it to O’Claire,

and had anal sex with him. O’Claire also had sex with defen-

dant at the Washington Street office, the O’Plaine office, the

Belvidere Street Church, and in Virginia. Defendant some-

times placed O’Claire on a chair for anal intercourse. Defen-

dant told O’Claire that such acts were proper so long as no

love or lust was involved. O’Claire also had sex with other

church members while defendant watched and masturbated.

Bill Decker testified he lived in Pocohontas, Arkansas,

in the late 1960’s. When he was 14 years old, his family

attended a Pentecostal Church where defendant was pastor.

Defendant became a friend of the family. On one occasion,

Decker stayed at defendant’s house overnight. Defendant

asked Decker to rub his back. Defendant removed his under-

wear and then cupped his hand over Decker’s genitals.

A-14

Decker moved away in alarm. Defendant propositioned

Decker again soon after. Defendant moved from the town

after Decker’s mother reported him to the church leaders.

C.L. testified that he was born on January 14, 1972. He

met Morehouse and Thompson in Tijuana in 1987 and soon

after joined the Church. C.L. lived in a Church-rented apart-

ment in Chula Vista, California, for five months.

C.L. visited Waukegan in January 1988 and worked at

the Church for about a year. C.L. said he returned to Tijuana

in January 1989 because his father was sick. He then quit the

Church. C.L. admitted giving statements to various investi-

gators in August 1989, November 1989, and January 1991

regarding defendant’s sexual activity with him. C.L. admit-

ted he told Mark Pleasant from DCFS that defendant kept

lotion and paper towels in this desk but C.L. said this state-

ment had been untrue. C.L. denied participating in any sex-

ual activity with defendant in Waukegan, although he had

told Chumbley in his statement from January 1991 that this

had occurred. C.L. admitted he previously told investigators

at San Diego Children’s Hospital that he had anal and oral

sex with defendant but said his statements there had been

untrue.

C.L. denied that he had sex with defendant during a trip

to Norfolk. C.L. admitted he told investigators that defen-

dant had gray pubic hair. C.L. also admitted saying that

defendant would tell him “I’m going to get you” or “I’m

going to put my dick in your butt.” C.L. admitted telling

investigators that defendant performed sexual acts with the

Church trumpeter, Mike Connors. C.L. testified at trial that

all these previous statements were lies. C.L. admitted telling

A-15

investigators that defendant took gray pillows from the

closet and used them to have sex on the floor but this had also

been untrue.

C.L.’s statements to Chumbley, Art Walker, and Mark

Pleasant at the San Diego Children’s Hospital were offered

into evidence to pursuant to section 115-10.1 of the Code of

Criminal Procedure of 1963. (Ill. Rev. Stat. 1991, ch. 38, par.

115-10.1 (now 725 ILCS 5/115-10.1 (West 1992))). In his

statements, C.L. also said that defendant had offered him

papers to make him legal in the United States and that

defendant said C.L. would go to hell if he left the Church.

C.L. had told investigators that defendant was not circum-

cised. C.L. said defendant also told him that fornication with

women was wrong and that sex with men was allowed as long

as one controlled one’s thoughts. C.L. said all these state-

ments were not true. C.L. also admitted saying that defen-

dant told him that a person who had accused him of being a

“faggot” had been run over by a truck. C.L. admitted the

videotape was an accurate account of his statement but what

he said had been untrue.

C.L. said that Cecelia Fergosa, a former church member,

was the instigator of all the lies about defendant. She told

C.L. that he and A.C. could talk about defendant and make

some money. Cecelia hated defendant because she owned the

Church building in Tijuana and could not get the Church to

leave. Cecelia gave C.L. and A.C. a packet of newspaper arti:

cles regarding the allegations against defendant.

C.L. said the charges against defendant were motivated

by money and he made his statements after reading the

articles he received from Cecelia. C.L. said that Cecelia told

him to say defendant talked to him about masturbation, that

A-16

defendant raped him, and that defendant was a homosexual.

C.L. testified first that Cecelia did not tell him to describe the

Vaseline in defendant’s desk, but then later C.L. testified

that he said Cecelia did tell him about how he would describe

the Vaseline. C.L. said that Cecelia told him to talk about sex

in the chair and sex with other members of the Church. C.L.

admitted that some of the statements he allegedly got from

the newspaper articles are not contained therein. C.L. said

he remembered everything Cecelia told him to say and he

relayed this to agent Chumbley. C.L. said he rejoined the

Church late in 1991 but he denied receiving financial assis-

tance from the Church.

Arthur Walker testified that he is a chief investigator for

the Lake County State’s Attorney’s office. Walker stated that

he and Mark Pleasant, another investigator, traveled to San

Diego to interview C.L. on January 22, 1991. Agent Wayne

Chumbley from the INS and David Rubin from the San Di-

ego district attorney’s office were also present. Walker stated

that C.L. understood the questions posed to him and was not

coerced into cooperating. Walker stated that C.L. signed and

attested to the fact that his statements were true and

accurate.

___ Debra Paine and Pamela Thomas testified that they are

defendant’s daughters. They both stated that Decker did not

spend the night at their house on the evening of the alleged

abuse.

David Armstrong, Michael Carner, and Vernon Engler

are all Church members who had been charged in connection

with these accusations against defendant. All three testified

SPOT MOT OR go rade hs

A-17

at trial and denied having sex with A.C. Armstrong and

Carner said they rejected the State’s offer of a lesser punish-

ment in exchange for their testimony against defendant.

Jesus Cervantes “‘Jesse”’ Escobar testified that he is 23

years old and lives in Tijuana. He joined the Church in 1988

and has known C.L. for six years. In July 1989, Escobar was

present during a conversation among A.C., C.L., and Cecelia

Fergosa. Cecelia urged them all to accuse defendant of rape,

saying if they did so they would receive money. Scott More-

house, who had left the church, made an appointment for

Jesse, A.C., and C.L. to meet agent Chumbley at the border.

Before the meeting, Jesse said he, A.C., and C.L. planned to

“fuck him (defendant) up.” A.C. spoke of making a million

dollars.

Jesse admitted giving tape-recorded statement to

Chumbley on August 28, 1989, in which he said defendant

had touched his buttocks. Jesse said defendant told him that

engaging in masturbation and homosexual activity was not

wrong but being with a woman was wrong. Defendant kissed

Jesse’s penis and then performed anal sex on Jesse. Jesse

testified at trial that these statements had been lies.

Charles Thompson testified that he has been a member

of the Church since 1982. Thompson never saw defendant

grab A.C.’s crotch or touch A.C. in a sexual manner. Thomp-

son said he has never had sex with A.C.

Daniel Lantis testified he is the pastor of the Church in

San Diego. He said that neither he nor anyone else told A.C.

to write the letter stating there was no homosexuality in the

Church. Lantis said A.C. wanted to go to Chicago in 1989.

A.C.’s mother expressed concern over the newspaper articles

alleging defendant’s homosexual activity. Lantis and A.C.

A-18

explained to A.C.’s mother that the allegations in the articles

were lies. Lantis said he has never had sexual relations with

A.C. and has never seen defendant have sexual relations with

A.C.

The trial court found defendant guilty on all remaining

counts. Defendant filed a post-trial motion which was denied.

The defendant was sentenced to 31 years of imprisonment.

Defendant filed a timely appeal.

Defendant first contends that the State failed to prove

him guilty beyond a reasonable doubt. Defendant notes that

the State’s case was primarily based on the testimony of A.C.

and the section 115-10.1 statements of C.L. Defendant ad-

mits that each of the two witnesses established his ability to

lie but that A.C.’s testimony is far less credible.

The reviewing court may not substitute its judgment for

that of the trier of fact with respect to the weight of the

evidence or the credibility of the witnesses. Rather, a crimi-

nal conviction is not to be overturned on review unless the

evidence is so improbable or unsatisfactory as to create a

reasonable doubt of the defendant’s guilt. (People v.

Draheim) (1993), 242 Ill. App. 3d 80, 88.) The reievant ques-

tion is whether, after considering the evidence in the light

most favorable to the prosecution, any rational trier of fact

could find the essential elements of the offense beyond a

reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237,

261.) Under this standard, the evidence is clearly sufficient

to affirm the trial court’s judgment.

The trial court properly concluded that A.C.’s testimony

was believable and sufficient to support the verdict. A.C.

relayed in detail the series of events which led him to join the

Church and develop trust and respect for defendant. A.C.

A Ngee

NEY

A-19

said he respected defendant as the ‘“‘bishop”’ of the Church

and felt privileged that defendant wanted A.C. to accompany

him on out-of-town trips and Church events. A.C. felt grate-

ful that he could do something ‘“‘good for God.”’

Defendant subtly initiated his sexual advances by hold-

ing A.C.’s leg and asking him if he masturbated. From there,

defendant’s actions escalated to grabbing A.C.’s crotch and

then performing reciprocal acts of oral and anal sex with A.C.

A.C. first thought that defendant was testing him. After it

became apparent this was not the case, A.C. continued to

acquiesce in performing sexual acts because defendant

threatened that A.C. would “‘burn in hell’’ and “‘cry forever’’

if he did not participate. Defendant also told A.C. that the

homosexual acts they performed were similar to masturba-

tion and were a good tension release.

Defendant argues that A.C. is discredited by C.L. and

Jesse Escobar’s testimony that they, along with A.C., con-

jured up the stories of sexual abuse to make money at the

urging of Cecelia Fergosa. C.L. said he got information about

the allegations from newspaper articles and he lied about the

fact that defendant had performed such acts on him. C.L.

also testified that A.C. refused to recant his allegations be-

cause he wanted to make “a million dollars.”’ We believe that

this testimony is simply not credible given the consistency of

A.C.’s testimony throughout these proceedings and in light

of the fact that C.L.’s previous statements to investigators

contained sexual details about defendant that were not in-

cluded in the newspaper articles. We also believe that the

dissimilarities between C.L.’s and Jesse’s statements and

A.C.’s statements are not significant and only indicate that

no conspiracy to destroy defendant ever existed.

A-20

Defendant also contends that a thorough cross-exami-

nation of A.C. was not permitted since defense counsel was

precluded from asking A.C. if he suffered from any physical

manifestations of sexual abuse. A.C. stated that he had

bleeding from his anal area but could not attribute it to

abuse from defendant. The trial court sustained that State’s

objection to any further questions regarding A.C.’s physical

examination in San Diego following the allegations. How-

ever, we note that the State never attempted to relate the

anal bleeding with A.C.’s sexual activity with defendant;

therefore, the trial court did not err in precluding this ques-

tion. Further, a lack of injury would not disprove sexual

abuse. See People v. Glass (1992), 239 Ill. App. 3d 916 (testi-

mony of victim of sex offense, as with any crime victim, need

not be substantially corroborated by medical evidence in or-

der for defendant to be found guilty beyond a reasonable

doubt).

Defendant argues he was also precluded from asking if

A.C. ever talked with Chuck Thompson about his involve-

ment with drugs and alcohol. A.C. had previously denied ever

talking about his drug and alcohol usage the the Church. We

agree with the trial court that defense counsel’s attempt to

impeach A.C. on that basis was improper since such matters

were based on rumor and speculation. (See People v.

DeSavieu (1983), 120 Ill. App. 3d 420, 430 (impeachment of

witness on alleged drug addiction improper where no evi-

dence of addiction would be shown).) The trial court did not

err in sustaining the State’s objection to this question.

Defendant also contends that the State asked leading

questions of A.C. in order to enhance his testimony. A.C.’s

testimony included over 200 pages of direct examination and

was of considerable length. Defendant refers to only two

A-21

leading questions posed by the State, regarding defendant’s

underwear and defendant’s repeated use of the terms

“(w)hat if I get ya” or similar expressions to convey his

desire for sex. However, defendant’s objections to these ques-

tions were sustained, and we do not conclude that posing

either of these questions changed the outcome of the case. We

hold that A.C.’s testimony was credible and that the evidence

is sufficient to affirm defendant’s conviction.

Defendant next contends he was unfairly prejudiced

and denied the right to a fair trial where the trial court

allowed ‘‘other acts’’ testimony regarding sexual conduct

with several adult males. Defendant argues that the prejudi-

cial impact of the testimony of these men outweighed any

probative value and amounted to prosecutorial overkill. De-

fendant concludes that such testimony made it impossible

for him to receive a fair trial.

A-22

As a general rule, evidence indicating that a defendant

committed prior bad acts is improper where its purpose is to

demonstrate the defendant’s propensity to commit crime.

(People v. Davis (1993), 248 Ill. App. 3d 886, 891.) Such evi-

dence, often referred to as ‘‘other offenses” evidence or ‘‘ex-

trinsic acts’ evidence, is admissable if it is relevant to

establish any material question other than to show the pro-

pensity to commit crime. (People v. Steward (1984), 105 IIl.

2d 22, 62; Davis, 248 Ill. App. 3d at 891.) The erroneous

admission of other offenses evidence carries a high risk of

prejudice and generally calls for a reversal. (People v. Mason

(1991), 219 Ill. App. 3d 76, 80.) Therefore, the trial court

must balance the probative effect of such evidence against

any prejudicial effect. (Davis, 248 Ill. App. 3d at 891.) A

reviewing court will not disturb the trial court’s decision

concerning the admission of other offenses evidence absent

an abuse of discretion. People v. Vazquez (1989), 180 Ill. App.

3d 270, 277.

We note that defendant’s activity with the adult male

witnesses at trial was that of consenting adults and thus was

not a crime. However, other-crimes evidence may include

acts which may not be a criminal offense. (See People v.

Smith (1990), 141 Ill. 2d 40 (evidence of gang membership is

admissible to show motive, but only where there is sufficient

proof that such membership is related to the crime

charged).) Defense counsel made numerous objections dur-

ing trial in an attempt to preclude the admission of other acts

evidence. The trial court’s comments indicate it allowed such

testimony to show the common plan, scheme, and design of

the defendant, to confirm defendant’s identification, and to

demonstrate the lack of a conspiracy by the victims as alleged

by the defense. While other acts evidence is admissible for

- A-23

these purposes (see Mason, 219 Ill. App. 3d at 80), the trial

court must take care to consider the proper limited purpose

for such evidence. We note here that the trial judge repeat-

edly stated during trial that he would only consider those

aspects of the witnesses’ testimony that were appropriate.

We conclude the evidence of sexual relations with other

men was relevant and admissible as part of a common plan,

scheme, or design. All of the witnesses testified that defen-

dant initially approached them with questions about mastur-

bation and whether they had ever participated in

homosexual acts. The witnesses were told that homosexual

acts were similar to masturbation and were not wrong as

long as no love or lust for the man was involved. Defendant’s

questions would typically become more frequent and defen-

dant would say things in the context of these conversations

| such as “I’m going to get ya”’ or “[w)hat if I were to get ya?”’

Many of the witnesses concurred with A.C.’s testimony that

defendant would use Vaseline Intensive Care Lotion ar Vase-

line petroleum jelly as lubricant. The testimony indicates

these items were kept in defendant’s desk drawer along with

paper towels for cleaning up afterwards.

A.C.’s description of how defendant would position him

to have sex in a chair was also similar to accounts given by

several of the witnesses. Some of the witnesses’ testimony

mirrored A.C.’s description of sexual acts performed on the

floor with a large pillow which defendant kept in his office.

These accounts were similar enough to inform the court of

defendant’s common plan, scheme, or design, but were va-

ried enough to be credible and to confirm that the testimo-

nies were not part of a rehearsed conspiracy against

A-24

defendant. Defendant correctly notes that none of the wit-

nesses testified that they observed defendant exhibiting in-

appropriate behavior or sexual activity with minors.

However, we believe it would only be logical that defendant

would chose to reveal his sexual activity with a minor to a

select cadre of Church members, some of whom have also

been charged in connection with these offenses.

In addition, these witnesses gave detailed accounts of

defendant’s intimate physical makeup which were similar to

those contained in A.C.’s testimony. Specifically, several wit-

nesses testified that defendant wore a toupee or hairpiece,

had false teeth or a bridge, was uncircumcised, had grayish

pubic hair, never wore a condom, had a rash on his groin, had

spots on his legs, and wore white brief underwear. Five of the

witnesses testified, as did A.C., that defendant told them they

would go to hell if they left the Church. The fact that the

testimonies varied slightly indicates the victims and wit-

nesses did not rehearse their statements as part of a conspir-

acy. We believe the probative value of these statements

outweighed any prejudicial effect and that such testimony

was relevant and admissible. In addition, this case does not

present the same possibility of prejudice inherent in a jury

trial since it is presumed that the court considers only admis-

sible evidence in a bench trial. (See People v. Dugan (1992),

237 Ill. App. 3d 688, 698.) The trial court did not abuse its

discretion in allowing such testimony.

Defendant also argues that Decker’s testimony should

be regarded with grave scrutiny since the alleged act oc-

curred over 20 years ago. However, our supreme court has

noted that “the admissibility of other-crimes evidence

should not, and indeed cannot, be controlled soley by the

number of years that have elapsed between the prior offense

— F © a "

A265

and the crime charged.” (People v. Iligen (1991), 145 Ill. 2d

353, 370.) The decision whether to admit such evidence must

be made on a case-by-case basis by the trial judge. (Illgen,

145 Il. 2d at 370.) We conclude Decker’s testimony was suffi-

ciently credible and probative to be admissible and was not

an abuse of discretion.

Defendant next contends that his convictions of child

pornography must be reversed since the record is devoid of

any evidence that defendant produced a live performance or

solicited A.C. to appear in a live performance where the mi-

nor was sexually exploited. Defendant was convicted of nine

counts of child pornography which alleged he solicited A.C., a

minor, and produced live performances where A.C. was di-

rected to engage in various lewd acts, including oral and anal

sex with David Armstrong and Michael Carner. Defendant

contends that a live performance or presentation contem-

plates activity which is produced for the benefit of an audi-

ence; therefore, because the activity here was not produced

for the benefit of an audience, an essential element of the

offense was not present.

Defendant’s child pornography convictions were based

on section 11-20.1(a) which reads in pertinent part as

follows:

“(a) A person commits the offense of

child pornography who:

* * «.

(3) with knowledge of the subject mat-

ter or theme thereof, produces any stage

play, live performance, film, videotape or

A-26

other similar visual portrayal which in-

cludes a child whom the person knows or

reasonably should know to be under the

age of 18 * * * engaged in any activity de-

scribed in subparagraphs (i) through (vii)

of paragraph (1) of this subsection; or

(4) solicits any child whom he knows or

reasonably should know to be under the

age of 18 * * * to appear in any stage play,

live presentation, film, videotape, photo-

graph or other similar visual reproduction

in which the child* * * is or will be de-

picted, actually or by simulation, in any

act, pose or setting described in subpara-

graphs (i) through (vii) of paragraph (1) of

this subsection; or

(5) is a parent, legal guardian or other

person having care or custody of a child

whom the person knows or reasonably

should know to be under the age of 18 * * *

and who knowingly permits or arranges for

such child * * * to appear in any stage play,

live performance, film, videotape, photo-

graph or other similar visual presentation,

portrayal or simulation of any act or activ-

ity described in subparagraphs (i) through

(vii) of paragraph (1) of this subsec-

tion ***.”’ (Ill. Rev. Stat. 1991, ch. 38,

pars. 11-20.1(a)(3), (a)(4), (a)(5) (now 720

ILCS 5/11-20.1(a)(3), (a)(4), (a)(5) (West

1992)).)

A-27

The acts described in subparagraphs (i) through (vii) of para-

graph 1 include oral and anal intercourse, masturbation, and

lewd fondling. (Ill. Rev. Stat. 1991, ch. 38, pars.

11-20.1(a)(1)(i) through (vii) (now 720 #£ILCS

5/11-20.1(a)(1)(i) through (vii) (West 1992)).) A.C. testified

that on several occasions he engaged in sexual activity with

defendant together with other Church members; one such

gathering included as many as seven or eight other men.

Defendant would always direct the sexual acts that the men

were to perform on one another and then defendant himself

would join in the activity. A.C. testified that defendant would

typically direct one person to perform oral or anal sex with

A.C. while defendant watched and masturbated.

Defendant cites New York v. Ferber (1982), 458 U.S. 747,

73 L. Ed. 2d 1113, 102 S. Ct. 3348, in support of his conten-

tion that an audience is necessary for defendant’s acts to

constitute child pornography. In Ferber, the Supreme Court

upheld as constitutional a child pornography statute that

described a performance as “any play, motion picture, photo-

graph or dance” or ‘‘any other visual representation exhib-

ited before an audience.” (Ferber, 458 US. at 751, 73 L. Ed.

2d at 1119, 102 S. Ct. at 3351.) Defendant contends the

element of ‘“‘production” is not satisfied here since the direc-

tions which defendant reportedly gave during sexual activity

with A.C. were part of defendant’s own participation and did

not contemplate the amusement of an audience. The State

counters that no case law supports the argument that our

statute is limited to require such acts in front of an audience.

We agree with the State that the legislative debates

which defendant appended to his brief do not add anything

that would support his contention. In addition, the State

correctly notes that section 11-20.1(f)(2) of the Criminal

A-28

Code of 1961, which defines “‘[p]roduce”’ as “‘te direct, pro-

mote, advertise, publish, manufacture, issue, present or

show,” does not specifically refer to an audience. Ill. Rev.

Stat. 1991, ch. 38, par. 11-20(f)(2) (now 720 ILCS

5/11-20.1(f)(2) (West 1992)).

However, we do not believe that our child pornography

statute was intended to apply to acts such as those alleged in

A.C.’s testimony. The sexual acts which defendant orches-

trated were clearly executed for defendant’s own pleasure

and most likely the pleasure of the other adults present;

however, we do not conclude that such acts constituted a live

presentation or performance as contemplated in the statute.

The acts here occurred in the privacy of defendant’s office

and all those present were participants to some extent. This

setting renders the actions less akin to child pornography.

Rather, the adults committing sexual acts with A.C. would be

guilty of aggravated criminal sexual assault. (See IIl. Rev.

Stat. 1991, ch. 38, par. 12-13 (now 720 ILCS 5/12-13 (West

1992)).) Accordingly, we reverse defendant’s convictions on

the child pornography counts outright. All remaining convic-

tions stand.

Defendant next contends that the trial court abused its

discretion in sentencing defendant when it considered as

aggravation a factor inherent in the charged offense. Defen-

dant contends that the trial court applied in aggravation the

factor that “‘defendant held a position of trust or supervi-

sion’”’ with regard to A.C. (Ill. Rev. Stat. 1991, ch. 38, par.

1005-5-3.2(a)(14) (now 730 ILCS 5/5-5 3.2(a)(14) (West

1992)).) Defendant argues that this factor was inherent in

several counts of the indictment. See Ill. Rev. Stat. 1991, ch.

A-29

38, par. 12-13(a)(4) (mow 720 ILCS 5/12-13(a)(4) (West

1992)); Ill. Rev. Stat. 1991, ch. 38, par. 12-16(f) (now 720

ILCS 5/12-16(f) (West 1992)).

- This court has previously held that the aggravating fac-

tor relating to a defendant who holds a “‘position of trust or

supervision” could be applied to a convicted sex offender who

was the minister of a church. (See People v. Bosley (1990), 197

Ill. App. 3d 215, 222.) Defendant notes that, in Bosley, the

defendant’s status of trust was not an element of the charged

offense. However, we do not conclude that the trial court’s

comments on this issue warrant a reversal. The record indi-

cates that the trial court included the issue of defendant’s

position of trust generally during his comments prior to sen-

tencing. The trial judge’s comment in the context of the

entire sentencing hearing does not indicate that this issue

led to a longer sentence which would in turn necessitate a

remand for resentencing. See People v. Bourke (1983), 96 III.

2d 327, 332.

Defendant also contends the trial court erroneously

considered as an aggravating factor that defendant was

obliged to prevent the offense committed because of his posi-

tion as pastor. (See Ill. Rev. Stat. 1991, ch. 38, par.

1005-5-3.2(a)(4) (Now 730 ILCS 5/5-5-3.2(a)(4) (West

1992)).) Here, the trial court made the following comments:

“TI agree with factor number four that the

defendant was obliged to prevent this type of

situation. In fact ministers I believe are manda-

tory reporting people * * * . If ministers aren’t,

they should be. A minister should be the last

person to abuse a child, and if he finds out

about it, he’s supposed to call DCFS or call the

police and report it and stop it right now this

minute.”

A-30

Defendant correctly points out that this factor does not

apply to clergymen and that the trial court erred in consider-

ing it as an aggravating factor. (Bosley, 197 Ill. App. 3d at

222.) However, given the overwhelming evidence in this case

and the trial court’s thorough discussion of all the factors in

aggravation and mitigation, we believe the trial court’s con-

siderations of this factor was not significant enough to result

in a greater sentence. Bourke, 96 Ill. 2d at 332.

Defendant also contends that the trial court failed to

consider the mitigating testimony of defendant’s witnesses

and the large volume of supportive letters as mitigating fac-

tors. We note that the trial court specifically stated that

defendant was eligible for an extended-term sentence. How-

Hi ever, the trial court considered “the good things defendant

has done, the good things he’s done for the community, his

lack of prior criminal record, his age, his health problems,”’

in addition to the letters of support, in determining that an

extended sentence was not appropriate. We conclude the trial

court properly considered the factors offered in mitigation.

Defendant last contends his sentence was excessive,

cruel, and unusual. Defendant notes he is 57 years old, has

no criminal record previous to these proceedings, and has

received only three minor traffic violations. Defendant also

suffers from diabetes, high blood pressure, and pain in his

joints. The trial court sentenced defendant as follows: count

I, 12 years; count II, 12 years consecutive to count I; count

XXI, 7 years consecutive to counts I and II; counts XIII, XV,

XVI, XVII, IXX, XX, XXII, XXIII, 7 years concurrent with the

third consecutive sentence and consecutive to the first two

sentences; and counts III, IV, V, VI, VII, VIII, [X, XI, XU,

XXIV, XXV, XXVI, XVII, 5 years concurrent with the third

consecutive sentence and consecutive to the first two

A-31

sentences, for a total of 31 years of imprisonment. The trial

court ordered defendant’s sentences on the child pornogra-

phy convictions to be concurrent to sentences on his other

convictions; thus, our reversal of the pornography counts

does not lessen defendant’s total years of imprisonment.

A trial judge’s sentencing decision is entitled to great

deference and weight. (People v. Perruquet (1977), 68 Ill. 2d

149, 154.) A reviewing court’s power to alter or reduce a

sentence pursuant to Supreme Court Rule 615(b)(4) (134 Il.

2d R. 615(b)(4)) is limited to those cases in which a trial court

has abused its discretion. (People v. Keating (1993), 252 Il.

App. 3d 801, 803.) Defendant contends that the trial court

neglected to consider the objective of restoring defendant to

useful citizenship and failed to impose a sentence which bal-

ances the rehabilitation potential of the offender with the

need to protect society. However, the trial court must con-

sider not only the defendant’s history and his rehabilitative

potential, but also the seriousness of the offense, the need to

protect society, and the need for deterrence. People v. Good-

win (1991), 208 Ill. App. 3d 829, 831.

The trial court is in a better position than this court to

fashion an appropriate penalty after observation of defen-

dant and consideration of such factors as defendant’s de-

meanor, general moral character, mentality, social

environment, habits, and age. (Keating, 252 Ill. App. 3d at

803.) We believe the trial court properly considered the seri-

ousness of the offenses and defendant’s repetition of such

acts in sentencing defendant to 31 years of imprisonment.

The trial court acknowledged defendant’s lack of criminal

record and possible health risks and clearly lessened the

A-32

sentence in consideration of defendant’s good acts in the

community. We hold the trial court did not abuse its discre-

tion, and we affirm defendant’s sentence.

For the foregoing reasons, we reverse defendant’s con-

victions on all child pornography counts and affirm all re-

maining convictions and sentences.

Affirmed in part; reversed in part.

DOYLE and PECCARELLI, JJ., concur.

United States of America

State of Illinois,

Appellate Court, ss.

Second District,

I, LOREN J. STROTZ, Clerk of the Appellate Court, in

and for said Second Judicial District of the State of Illinois,

and the keeper of the Records and Seal thereof, do hereby

certify that the foregoing is a true, full and complete copy of

the decision of the said Appellate Court in the above entitled

cause of record in my said office.

IN TESTIMONY WHEREOEF I have set

my hand and affixed the seal of the said

Appellate Court, in Elgin, in said State,

this 25th day of March, A.D. 1994.

/s/ LOREN J. STROTZ

Loren J. Strotz

Clerk Appellate Court

Second District

77249

ILLINOIS SUPREME COURT

JULEANN HORNYAK, CLERK

SUPREME COURT BUILDING

SPRINGFIELD, ILL. 62706

(217) 782-2035

October 6, 1994

Mr. Jed Stone

Law Offices of Urban and Stone, Ltd.

820 W. Jackson Blvd., S#310

Chicago, IL 60607

No. 77249 — People State of Illinois, respondent, v. Lloyd R.

Davis, petitioner. Leave to appeal, Appellate

Court, Second District.

The Supreme Court today DENIED the petition for

leave to appeal in the above entitled cause.

The mandate of this Court will issue to the Appellate

Court on October 28, 1994.

APPENDIX B-1

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.