People v. Smart

230 N.E.3d 761

2023 IL App (1st) 220427

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Cecil SMART, Defendant-Appellant.

No. 1-22-0427

Appellate Court of Illinois, First District, SIXTH DIVISION.

Filed September 15, 2023

Appeal from the Circuit Court of Cook County, Criminal Division, No. 19 CR 14458, The Honorable Carol M. Howard Judge, presiding.

James E. Chadd, Douglas R. Hoff, Kathleen M. Flynn, and Kara Kurland, of State Appellate Defender’s Office, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique Abraham, Mary L. Boland, and Whitney Bond, Assistant State’s Attorneys, of counsel), for the People.

OPINION

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

¶ 1 This case calls on us to examine when a defendant charged with sexual abuse of a minor has put his intent at issue such that the State may offer evidence of other wrongful acts to establish his intent. Here, the defendant admitted that he slept in the same bed with the minor but denied that he had any physical contact with him and did not otherwise offer any evidence or argument that any physical contact was merely accidental or incidental. We conclude that, under these circumstances, the defendant did not put his intent at issue and the trial court erred in admitting other acts evidence as proof of defendant’s intent. Accordingly, we reverse and remand for a new trial.

¶ 2 I. BACKGROUND

¶ 3 The defendant, Cecil Smart, was charged with three counts of aggravated criminal sexual abuse based on allegations that on or around July 26, 2018, he sexually abused J.P., a 16-year-old boy from Philadelphia who was spending the summer in Chicago with his older sister. Count I alleged that Smart knowingly committed an act of sexual penetration upon J.P. by putting his mouth on J.P.’s penis, count II alleged that Smart touched J.P.’s penis with his hand for the purpose of sexual gratification, and count III alleged that Smart knowingly committed an act of sexual conduct upon J.P. by causing J.P.’s hand to touch Smart’s penis. After a bench trial, Smart was convicted of the first two counts, found not guilty on the third count, and sentenced to 30 months of probation. Smart’s motion for a new trial was denied, and he timely appealed. Smart argues that the trial court reversibly erred by admitting other acts evidence and contends that he received ineffective assistance of counsel.

¶ 4 The evidence at trial revealed the following. In 2018, when J.P. was 16 years old, he spent the summer with his older sister, Ciera S., who lived in Chicago and worked for Breakthrough Urban Ministries (Breakthrough). J.P. did volunteer work at Breakthrough. Smart used to work at Breakthrough as well, and he and Ciera became friends. By the time J.P. arrived in Chicago, Smart had already been terminated by Breakthrough, but Ciera and Smart continued to socialize. Multiple witnesses testified that Ciera was romantically interested in Smart, but Smart only wanted to be friends. Smart lived with his brother, Frank; Frank’s partner, Amanda; and Frank and Amanda’s children.

¶ 5 Ciera introduced J.P. to Smart, and afterwards, Smart invited J.P. along when he took his nephews on various outings. First, Smart invited J.P. to go to the zoo. The night before their trip, J.P. spent the night at Smart’s house because Ciera had to work early the next morning and did not think she would have time to drop him off. Smart directed J.P. to sleep next to him in his bed, and the two slept side by side without incident.

¶ 6 Several weeks later, Smart invited J.P. to go with him and his nephews to see fireworks at Navy Pier, and J.P. accepted. J.P. testified that in the car on the way to the fireworks show he saw Smart drinking what he believed was alcohol. J.P. said that when Smart offered him the alcohol, he drank some because he "kind of felt pressured" to do so. By the time Smart, J.P., and Smart’s nephews arrived at Navy Pier, the fireworks were already over, but they looked at the city skyline for a while. Then, they stopped at McDonalds for food and returned to Smart’s house to eat. J.P. testified that Smart offered him more alcohol at the house and that he drank about "two shots worth," which made him feel sick. J.P. then threw up in the kitchen, and Smart cleaned it up.

¶ 7 Afterwards, J.P. took a shower and then went to bed. He testified that he slept in Smart’s bed because that is where he slept the last time he stayed over. According to J.P., Smart got in bed with him, and shortly thereafter, Smart "started touching [him]." J.P. said that he kept his eyes closed and pretended to be asleep. Smart then pulled down J.P.’s shorts and underwear, started stroking J.P.’s penis, and then put his mouth on J.P.’s penis. J.P. testified that even though his eyes were closed, he could tell Smart’s mouth was on his penis because he heard Smart’s breath and felt his beard. Smart rubbed his penis against J.P.’s closed fist as well. J.P. testified that he did not cry out or fight back at any time because he was "scared" of what Smart might do and because he believed "nobody would be able to help [him]." Testimony established that Frank and Amanda were home that night, as well as Smart’s niece and nephews.

¶ 8 J.P. testified that the morning after his encounter with Smart he texted his friend M.T. and told her "everything that happened." He explained that he did not tell his mom or sister what Smart had done to him because he did not want them to worry. It was not until several months later, in October 2018, that J.P. finally told his mother and sister what had happened. He then reported the incident to police.

¶ 9 Smart testified in his defense. He admitted that he and J.P. slept in the same bed that night but denied J.P.’s allegations of sexual abuse, saying they "never happened." He said he never touched J.P.’s penis, never put his mouth on J.P.’s penis, and never had J.P. touch his penis. The State cross-examined Smart about a prior incident, which we discuss below.

¶ 10 Before trial, the State filed a motion to allow "other crimes" evidence about three prior incidents. First, the State moved to admit evidence that on March 29, 2018, when Smart was employed as the associate director of the sports and fitness academy at Breakthrough, he was reprimanded for being alone in a room with a male teenage student in violation of company policy. Second, the State moved to admit evidence that on June 12, 2018, Smart drove a male teenage student home alone, again in violation of Breakthrough’s company policy, and grabbed the student’s buttock. Breakthrough terminated Smart’s employment shortly after this incident. Third, the State moved to admit evidence of an incident that took place in 2012 when Smart was working as an assistant basketball coach at Sterling College in Kansas. In approximately October 2012, Smart went into an 18-year-old student athlete’s dorm room and wrestled with him. Later that night, when Smart saw the student at a local convenience store, he offered him a ride. On the ride home, Smart pulled over on the side of the road in a semi-deserted area and got some alcohol from the trunk. Smart drank some of the alcohol and offered some to the student. The student drank so much that he vomited. The student reported the incident, and Smart was formally reprimanded by Sterling College.

¶ 11 At the hearing on the motion, the State conceded that the prior acts "don’t fall under the propensity statute" (725 ILCS 5/115-7.3 (West 2018)), but argued that they "are admissible under common law." The State pointed out that other acts evidence can be admitted if it is not used for propensity purposes but instead is used to show "modus operandi; knowledge after the mistake or action; a defendant’s state of mind; the absence of an innocent frame of mind or the presence of criminal intent; and that the crime charged was part of a common design, scheme, or plan." The State argued that in each of these prior incidents, Smart

"manufactures a situation whereupon he can be alone with a male teenager. In each case he meets that teenager through work [***] In each case he makes friends with the teenager and then grooms the child for sexual contact, gaining the child’s trust. In each case the defendant was an adult in a position of authority over the teenager that he’s grooming or abusing [***] The defendant is using the same scheme, the same common design of getting close to children through his work."

The State also argued that "what these priors show is that [Smart] has a criminal intent. He has a guilty mind. The presence of criminal intent is a reason to admit prior bad acts at common law."

¶ 12 In response, Smart’s counsel argued that because none of Smart’s prior acts qualify as sex crimes under the statute, they could not be admitted under the propensity statute. He also argued that the prior acts were not sufficiently similar to the charged acts to satisfy any of the common law exceptions and that any probative value of this evidence was far outweighed by its prejudicial effect.

¶ 13 The court found that the Sterling College incident and the March 2018 incident at Breakthrough were inadmissible because there were "no allegations involving any type of sexual conduct whatsoever" and the probative value of this evidence was "far outweighed by its prejudicial effects." However, the court admitted the June 12, 2018, incident where Smart drove a Breakthrough student home alone and grabbed his buttock. The court found the incident "admissible pursuant to Donoho" (see People v. Donoho, 204 Ill. 2d 159, 273 Ill.Dec. 116, 788 N.E.2d 707 (2003)) and reasoned that "a hand to the buttocks could be perceived as sexual behavior. And I think there’s sufficient case law that supports the position that this incident should be admitted. So I am introducing that incident as other crimes evidence."

¶ 14 At trial, the State cross-examined Smart about the June 12, 2018, incident,...