People v. Cardamone (381 Ill. App. 3d 462, 2008)

JUSTICE CALLUM

delivered the opinion of the court:

I. INTRODUCTION

Defendant, Michael P. Cardamone, a gymnastics coach, was charged with predatory criminal sexual assault of a child (720 ILCS 5/12 — 14.1(a)(1) (West 2002)) (8 counts) and aggravated criminal sexual abuse (720 ILCS 5/12 — 16(c)(l)(i) (West 2002)) (18 counts) against 14 gymnasts at the American Institute of Gymnastics (gym) in Aurora. Defendant’s jury trial lasted approximately two months, included more than 100 witnesses for the defense, and generated over 10,000 pages of hearing transcripts. After deliberating for three days, the jury found defendant guilty of nine counts of aggravated criminal sexual abuse against seven girls. The trial court denied defendant’s posttrial motions and sentenced him to 20 years’ imprisonment.

Defendant appeals, arguing that; (1) the trial court erred in admitting evidence of uncharged misconduct against the complainants; (2) the trial court erred in admitting evidence of uncharged misconduct against a girl at another gymnastics club; (3) the trial court erred in refusing defendant’s unanimity instruction; (4) the trial court abused its discretion in excluding expert witness testimony regarding the complainants’ statements’ reliability in light of suggestive interview techniques; (5) the trial court abused its discretion in refusing to instruct the jury on the lesser included offense of battery; (6) the trial court erred in barring defendant’s videotape of the gym’s facility, not allowing the jury to visit the facility, and allowing the State’s videotape and photographs of the facility both into evidence and inside jury deliberations; (7) the State failed to prove defendant’s guilt beyond a reasonable doubt; and (8) the trial court abused its discretion during sentencing by considering defendant’s failure to admit guilt instead of his rehabilitative potential. For the following reasons, we agree with defendant’s arguments regarding the improper admission of uncharged conduct, the refusal of the unanimity instruction, and the exclusion of expert witness testimony. Accordingly, we reverse and remand the cause for a new trial.

II. BACKGROUND

A. State’s Case

All of the acts defendant allegedly committed, except for one, occurred at the gym, which is owned and run by defendant’s family. The gym’s main area resembles a large, open warehouse and is filled with gymnastics equipment, including a foam pit, mats, uneven bars, balance beams, vaults, and a floor exercise area. The square floor exercise area is in the center of the room and is bordered by an area with several sets of uneven bars on one side, vaulting runways, vaults, and a tumble track on the second side, an area with several balance beams and windows on the third side, and an open area in front of the fourth side. The foam pit, a large pit filled with big, square, blocks of soft foam, is located in the comer between the uneven bars and some of the vaults. On the opposite side of the gym, in the comer between the balance beams and the other vaults, is a storage area. There are no walls or other barriers dividing the gym’s main area. Smaller rooms, adjoined by a hallway, are located outside the gym’s main area. Those rooms are preschool rooms, which are referred to as the “house room” and the “castle room,” and a music room. Gymnastics, preschool, and cheerleading classes are conducted during business hours.

The 14 complainants were gymnastics students at the gym. Complainant C.E. made allegations against defendant in November 2002, and the remaining allegations followed. All the conduct, charged and uncharged, allegedly occurred during a three-year time period, between 1999 and 2002. Of the 26 counts charged, defendant was convicted of 9 counts of misconduct, against complainants A.E, A.S. (2 counts), B.E (2 counts), S.H., N.E., S.O., and C.E. The charges and the testimony of these complainants, in the order that they appeared at trial, follow.

1. Complainant A.E

Defendant was charged with predatory criminal sexual assault against A.E for penetrating her sex organ with his finger and aggravated criminal sexual abuse for touching A.E’s sex organ for the purpose of sexual gratification. According to the charges, the two counts represented alternative theories relating to the same act, which occurred sometime between December 2000 and March 2002, while A.E stretched against a mat by a vault.

At trial, A.E testified first to the conduct that was the subject of the charges. A.E began attending classes at the gym when she was 6 or 7 years old and continued there until she was 10 years old, in 2002. Defendant was her primary coach when she began; he coached her less with each passing year. Around December 2001, defendant assisted A.E with a straddle stretch. He leaned a mat against a vault. A.E lay down on the floor, with her head toward a wall and her legs and bottom against the mat. She spread her legs and defendant, kneeling, placed one hand on each of her thighs and pressed down to stretch her. He then moved his hands closer to her vagina and slid his finger beneath her leotard, touching her vagina. He felt around and put his finger inside her vagina to the end of his fingernail — approximately half an inch. After sliding his finger under her leotard and inserting his finger inside her vagina, defendant kept his finger there for two seconds.

The assistant State’s Attorney notified the trial judge that A.E was going to discuss additional conduct. The trial judge told the jury that evidence would be presented that defendant was involved in offenses other than those charged in the indictment and that the evidence was to be received on the issues of defendant’s intent, absence of innocent mental state, course of conduct to corroborate the victim’s testimony concerning the charged offense, and “for its bearing on any matter to which it is relevant.”

As to uncharged conduct, A.E testified that defendant had touched her inappropriately, the same way and inside her vagina, 40 to 50 other times. Defendant penetrated her vagina every year that she took classes at the gym, but the number of times decreased each year. A.E testified that this behavior always occurred in the same location of the gym. Although she first testified that he had touched her 40 to 50 times, A.E later estimated that, by the time she left the gym, defendant had touched her inappropriately over 100 times.

A.E acknowledged that the gym was very crowded. She testified that, when the incidents occurred, as many as 100 to 200 other people were present in the gym, many within a matter of feet from her. Other girls were in lines, vaulting past her, from both directions. A.E did not object to being stretched by defendant, nor did she complain to anyone. She testified that she did not complain to defendant, tell him to stop, or flinch and try to get away. A.E knew what inappropriate touching was and testified that, whenever she went by the vault to stretch, she knew that defendant was going to insert his finger in her vagina. A.E testified that, every time defendant stretched her, he put his finger inside her vagina; he never did the stretch without doing so. She continued to go to him to stretch. A.E testified that other gymnasts also went behind the mat to be stretched by defendant. A.E never looked to see if defendant was doing the same thing to them that he did to her.

A.E testified that she left the gym in 2002 because the training and conditioning were too difficult. After she left the gym, A.E’s mother asked her whether defendant had ever touched her inappropriately. A.E testified that she told her mother no, that he had not touched her, because she did not want to get involved and did not want everyone at the gym to hate her. Her mother gave her an affidavit that stated, “[defendant never touched me in an offensive or inappropriate or sexual manner, nor did I ever see him touch any other gymnast in an inappropriate or sexual manner.” A.E signed the affidavit on May 1, 2003, but testified that in it she was not telling the truth. A.E explained that her mother was one of defendant’s ardent supporters, which made it hard to tell the truth.

Later, in April 2004, A.E’s mother again asked whether anything had happened between A.E and defendant. A.E cried and told her mother that defendant had touched her. A.E knew some of the other complainants and looked up to them as superior gymnasts. The other complainants were in a different training group, and A.E was not in their “clique.” She did not discuss the allegations against defendant with those girls because she had already left the gym before the allegations started. A.E was not present at a November 2002 sleepover held by complainant B.E

The jury found defendant not guilty of penetrating A.E’s sex organ with his finger. However, it did find him guilty of touching A.E’s sex organ for the purpose of sexual gratification.

2. Complainant A.S.

Defendant was charged with predatory criminal sexual assault against A.S. for penetrating her sex organ with his finger and aggravated criminal sexual abuse for touching A.S.’s sex organ for the purpose of sexual gratification. The act allegedly occurred in the summer of 2000, during straddle stretches near a vault. In addition, defendant was charged with aggravated criminal sexual abuse for touching A.S.’s breast in the summer of 2001, during uneven bar exercises.

At trial, A.S. testified that she began gymnastics at the gym when she was three years old. She left the gym about 10 years later, in September 2002. During A.S.’s last few years at the gym, defendant was her main coach. About 10 to 15 girls were in her training group; several girls from the group ultimately became complainants. She knows all of the complainants, and most of them are her friends. They attended sleepovers together, talked on the telephone, and wrote online to each other.

As to the first charged incident, A.S. testified that, in the summer of 2000, while assisting her with a sitting middle split, defendant’s right hand moved from the back of her thigh near her hip bone, over her leg, and under her leotard. Defendant touched her vagina under her leotard, moved his hand around, and then inserted one of his fingers about one inch inside her vagina for 10 to 20 seconds. A.S. was stretching at the back of the gym, by the storage area and a vault, when the incident occurred. A.S. was against a mat during the stretch; some teammates were stretching on the other side of the mat, but no one was next to her.

A.S. testified to a second charged incident. In the summer of 2001, she was working on her uneven bars routine on a bar that was placed over the foam pit. Defendant was standing on a mat, assisting A.S. as she performed a particular skill. A.S. dismounted the bar into the pit; defendant either fell in or jumped in after her. A.S. was immersed in the pit. Defendant, on her right side, started tickling her on her stomach. He then put his hand through the arm hole of her leotard (near her underarm) and started touching her right breast with his fingers and his palm for 10 to 30 seconds. A.S. reacted by biting defendant’s forearm. Defendant’s mother, the gym’s owner, yelled at A.S. that, if she ever bit defendant again, she would be kicked out of the gym. A.S. did not tell defendant’s mother why she bit defendant.

Next, A.S. testified to three categories of uncharged conduct. First, A.S. testified that, in the summer of 2000, defendant touched her vagina, during stretches and by the vault, between 2 and 10 times. Each time, defendant would put his finger inside her vagina. A.S. never said anything to defendant; he never said anything to her.

Second, A.S. testified that, in the summer of 2000, defendant assisted her while she performed wheel conditioning and low bar exercises near the uneven bars and a vault. Defendant placed his right hand on her shoulder and his left hand under her thigh. His left hand moved underneath her leotard to touch her vagina, and he inserted his finger one inch inside her vagina for 10 to 20 seconds. There was no one next to her at the time. A.S. estimated that defendant did this between 5 and 15 times that summer. She did not tell any adults about what defendant had done.

Third, A.S. testified that in the pit defendant had touched her breast prior to the incident where she bit him. The circumstances were the same, i.e., after completing a skill and landing in the pit, defendant tickled her and put his hand underneath her leotard. A.S. estimated that defendant had touched her breast 5 to 10 times and that she had bitten him before — 5 times at the most.

A.S. went to B.E’s sleepover on November 23, 2002. At that party, there was a general discussion amongst a number of girls about being touched by defendant. There, A.S. said that she was touched under her bra strap. When interviewed in January 2003, two years after the alleged incidents with defendant, A.S. was asked how many times defendant touched her in an inappropriate way. She responded “not a whole lot.” At that time, she stated that defendant touched her crotch area “maybe two times” and, when asked whether defendant touched her outside or inside her vaginal area, she responded “outside.” The State and defendant stipulated that the first person to use the word “vagina” was an investigator, in January 2003; A.S. never used that word until after it was used by the investigator. In addition, when interviewed in January 2003, A.S. did not mention the wheel or low bar conditioning incidents because she had not done the exercises in two years and did not remember the incidents. At trial, A.S. estimated that defendant touched her inappropriately “probably about 30 times” and estimated that defendant put his finger inside her vagina about 20 times, between 2 and 10 of those times during straddle stretches.

A.S. testified that she did not leave the gym in September 2002 because she was having trouble with defendant. Rather, she left the gym because she did not get along with defendant’s wife, Elizabeth (Liz) Cardamone, who was also a coach at the gym. A.S. agreed that the gym was quite active and that there could be 100 to 200 people at the gym on a normal day, including Liz. A.S. did not see defendant inappropriately touch anyone else.

The jury found defendant not guilty of penetrating A.S.’s sex organ with his finger. However, it found him guilty of touching A.S.’s sex organ and breast for the purpose of sexual gratification.

3. Complainant B.E

Defendant was charged with two counts of aggravated criminal sexual abuse against B.E for: (1) touching her sex organ in December 2001, during straddle stretches by a vault; and (2) touching her breast in December 2001, during an arch stretch near the tumble track and floor exercise area, for the purpose of sexual gratification.

At trial, B.E testified that she began gymnastics at the gym when she was four years old. She left the gym in November 2002. Regarding the charged conduct, B.E testified that in December 2001, she was performing an arch stretch that required her to lie on her side with her hands above her head, arch her back to bring her legs behind her, and touch her feet to her head. B.E performed this stretch by the floor exercise area, in between the floor and the tumble track. While B.E stretched, defendant kneeled behind her with one hand on her knee and the other near her underarm. As defendant pushed her legs towards her head, he slid his hand from her underarm, underneath the seam of her leotard and bra, and onto her breast. His fingers moved about one inch past the seam line; his fingers did not touch her nipple area. He did not squeeze, grab, rub, or perform any similar motions. B.E pretended that the stretch was too hard on her back, and she told defendant to stop. Her other teammates were working on jumps and tumbling nearby.

B.E testified to a second charged incident. In December 2001, B.E performed a sitting straddle stretch on a mat between a wall and the floor exercise area, near the vaulting area. She usually had assistance during the stretch, to straddle her legs flush against the mat. On this occasion, defendant lay on his stomach on the ground behind her, with his elbows on the ground, and placed his hands on her hips to push her toward the mat. As he pushed her farther into the mat, defendant slid his hands down her leg, toward her bottom, and underneath her leotard. His fingers touched her vagina, but did not penetrate. Rather, his hands touched the skin surrounding her vaginal opening.

Next, B.E testified to two categories of uncharged conduct. First, B.E testified that, during the 2001-02 competitive season, she performed the arch stretch numerous times, and defendant touched her breast “around seven or ten, maybe, more or less” times. There were occasions where defendant would assist her with the stretch and not touch her breast.

Second, B.E testified that defendant touched her vaginal area during stretches on about 10 occasions. She told defendant to stop the stretch because her legs hurt. She did not tell an adult that defendant touched her, because she had many friends at the gym and did not want to leave them. B.E testified that she never saw defendant inappropriately touch other girls. She was at the gym five days a week for five hours per day.

On November 23, 2002, B.E hosted a sleepover at her house for her birthday. Approximately 20 girls from the gym were present. At the party, there was discussion about allegations coming forth from C.E. (the first girl to publicly accuse defendant) about being inappropriately touched by defendant. At the party, B.E said that defendant had also touched her, but she was not specific about the touching.

The jury found defendant guilty of touching B.E’s sex organ and breast for the purpose of sexual gratification.

4. Complainant S.H.

Defendant was charged with predatory criminal sexual assault against S.H. for penetrating her sex organ with his finger and with aggravated criminal sexual abuse for touching S.H.’s sex organ for the purpose of sexual gratification. According to the charges, the two counts represented alternative theories relating to the same act, which occurred sometime in the summer of 2001, while S.H. was in the gym’s foam pit.

As to the charged conduct, S.H. testified that, in the summer of 2001, she was learning a new skill on the vault that required her to land in the foam pit. Defendant jumped into the pit after S.H. landed and began tickling her stomach. S.H. was covered up to her waist with the pit foam. Defendant slid his hand underneath her leotard and touched his finger to her vagina. Defendant put his finger inside her vagina; he also touched the skin surrounding her vaginal opening. There was no one waiting to perform a vault or standing around the pit.

Next, S.H. testified to five categories of uncharged conduct. First, she testified that, on another occasion, she landed in the foam pit after performing an uneven bars skill. Defendant jumped into the pit and tickled and touched her. He touched her vagina underneath her leotard with his hand. S.H. could not remember whether defendant touched the inside of her vagina during this incident. On cross-examination, she added that defendant jumped into the pit after her vault exercise on yet another occasion and that defendant inappropriately touched her in the pit on two or three occasions.

Second, S.H. recalled pulling her hamstring in April 2001. She testified that, on two occasions, once by the vault and once by the uneven bars, defendant massaged her hamstring while she was lying on her stomach. He used both hands to massage S.H. and then slid his hand up and put his fingertip inside her vagina. When defendant touched her vagina, S.H. told him that it was time to use the Icy Hot, because she wanted him to stop. The second time this occurred, teammate N.E. was a couple of feet in front of S.H. N.E. “gave [S.H.] a look.”

Third, S.H. testified that defendant touched her vagina during a straddle stretch. S.H. was stretching in the area between the vaults and the balance beams. Defendant placed his hands on her upper thigh to push her toward the mat. His hands went under her bottom and he touched her vagina with his finger. His finger did not go inside her vaginal opening. This occurred one or two times. When defendant touched her, S.H. said, “[l]et’s go to the next event.”

Fourth, S.H. testified that defendant assisted her while she performed wheel conditioning — a core conditioning skill performed by holding with both hands a small wheel with handles and rolling forward and backward. This skill was usually practiced by the uneven bars and the vault runway. Defendant placed one hand on S.H.’s stomach and the other on her legs. He moved the hand that was on her legs up to her crotch and vagina. He touched her vagina underneath her leotard with his finger. His finger did not go inside her vagina. S.H. testified that defendant touched her twice during wheel exercises.

Fifth, S.H. testified that defendant touched her vagina while spotting her on a press handstand. S.H. and S.O. were both doing press handstands near the vault and foam pit. S.H. testified that she told S.O. what defendant had done. According to S.H., S.O. responded, “[y]ou have to tell him.” S.H. refused and did not want S.O. to say anything. S.O. called defendant over, and S.O., defendant, and S.H. had a conversation. S.H. could not recall exactly what S.O. said to defendant. Defendant responded, “It sometimes slips. It’s an accident. You have to tell me when it happens.” S.H. was angry that S.O. said anything to defendant, because she did not want him or anybody to know.

S.H. summarized at trial that, in her seven years at the gym, defendant touched her vaginal area “not more than 10” times. Of those times, his finger went inside her three times. She agreed that the gym was busy and that, on any given day, there could be 100 to 200 people present, including Liz. Some parents stood in doorways to observe, and some parents sat in cars in the parking lot, looking inside through the windows.

She never told an adult that defendant was touching her, because she was uncomfortable and embarrassed to talk about it and did not want to leave the gym. S.H. testified that she was not afraid of defendant. She went on three trips to Lake Owen, Wisconsin, with defendant and Liz.

At B.E’s November 23, 2002, sleepover, S.H. and some girlfriends discussed defendant’s touches. Most of S.H.’s teammates were present. S.H. was a close friend of N.E. and B.E S.H. further testified that, the night before the sleepover, she told her mother about defendant’s inappropriate touching. She testified that she was uncomfortable talking to her mother about all of the details and circumstances of defendant’s touching. S.H. agreed, on cross-examination, that in neither an interview conducted on December 3, 2002, by investigators nor her 2002 discussion with her mother did she mention the Icy Hot or press handstand incidents. Nor did she mention the press handstand incident in her summer 2003 interview with prosecutors. Also, she did not mention in any of these three conversations the presence of N.E. or S.O. during two of the incidents.

The jury found defendant not guilty of penetrating S.H.’s sex organ with his finger. However, it did find him guilty of touching S.H.’s sex organ for the purpose of sexual gratification.

5. Complainant N.E.

Defendant was charged with predatory criminal sexual assault against N.E. for penetrating her sex organ with his finger and aggravated criminal sexual abuse for touching N.E.’s sex organ for the purpose of sexual gratification. According to the charges, the two counts represented alternative theories relating to the same act, which occurred sometime between July and October 2002, while N.E. stretched against mats by a vault and the uneven bars.

At trial, N.E. testified that she started classes at the gym when she was 6 years old (1996) and left the gym when she was 12 years old (November 2002). As to the charged conduct, N.E. testified that, in August 2002, she had a private lesson with defendant on a weekend morning. No one else was present at the gym. She was performing a straddle stretch, lying on her back with her legs spread against a mat. Defendant sat on her chest, facing the mat. He touched her knees with his hands and pushed down on them to help her stretch. Defendant slid his hands down N.E.’s legs, touching her inner thighs. He moved his hands underneath her bottom and pushed it closer to the mat, which made her leotard looser in her crotch area. Defendant put his hands back on N.E.’s inner thighs and then down to her vagina. N.E. testified that defendant touched her vagina with his right fingers and moved them up and down. His fingers touched the skin surrounding the opening of her vagina, and he touched the opening of her vagina for 10 to 15 seconds. N.E. could feel defendant’s fingernail inside the opening of her vagina for three to five seconds. She moved her body, and he stopped touching her. N.E. testified that, when defendant told her to stretch by the mat during her private lesson, she knew what he was going to do to her. She did not tell defendant that she did not want to go by the mat or that she did not want to perform the stretch. N.E. did not say anything to defendant.

Next, N.E. testified to two categories of uncharged conduct. First, she testified that defendant touched her vagina during a stomach straddle stretch. He pushed down on her tailbone, pulled her bottom back, making her leotard looser, and put his hand under her leotard to touch the skin surrounding the opening of her vagina. He put his finger inside the opening. He did not put his finger in very far; he moved his fingers up and down on the skin surrounding the opening.

Second, N.E. testified that defendant touched her during a wheel exercise by moving his hand from her stomach to between her legs and then to her vagina. His fingers touched the skin around the opening and moved up and down on her skin. Defendant’s finger did not go inside N.E.’s vagina.

In an interview on November 26, 2002, N.E. said that the touching happened “like maybe 10” times. At that time, she stated that defendant touched her on, not in, her “crotch” during the straddle stretch. N.E. did not mention being touched during the wheel exercise. When the investigators asked her whether defendant ever touched her anywhere else on her body, N.E. answered “No. *** Well, not inappropriately, no.”

During an interview in October 2003, N.E. told an assistant State’s Attorney that defendant inappropriately touched her approximately once per week, but not every week. At trial, N.E. estimated that during straddle stretches defendant touched her vagina about one time per month. The touching continued either once a week or once a month from December 2000 to August 2002. She estimated that defendant touched her during the wheel exercise “only a couple, like three” times.

N.E. testified that she saw defendant inappropriately touch B.E She explained that she saw defendant assisting B.E with an arch stretch — pulling her leg behind her, by her head — and that defendant put his hand by B.E’s breast. She could not discern whether defendant touched B.E’s breast. She did not see defendant touch B.E on the vaginal area.

N.E. recalled that S.H. had a hamstring problem and that defendant would massage S.H.’s hamstring by a vault while S.H. lay on her stomach. N.E. did not see defendant do anything unusual or inappropriate when he massaged S.H.

N.E. testified that she observed defendant inappropriately touching S.O. She recalled S.O. performing a straddle stretch when defendant tried to touch S.O. by her crotch. N.E. could not recall what type of stretch S.O. was doing, where she was located in the gym, or what year this occurred. She could not see whether defendant touched S.O. inside or outside S.O.’s leotard. N.E. told S.O. to “come over by me” so that S.O. could get away from defendant.

N.E. testified that she generally did not focus on what defendant was doing to her teammates. She would look at him from time to time when defendant was with a teammate, but she did not see any other instances of inappropriate touching. She could not see every part of the girls’ bodies while defendant spotted them. N.E. agreed that gymnastics is a relatively competitive sport and that, while waiting to use a piece of equipment, e.g., the uneven bars, she would look around the entire bar area to observe what the other girls were doing on their wheel exercises, as well as what was happening on the floor and the vaults. The girls watched each other as they practiced.

N.E. never told an adult that defendant touched her, because she liked defendant as a coach, she liked the gym, and she did not want to leave. She also liked defendant as a person. She was around 10 years old when the events occurred, and she trusted defendant. N.E. did not tell her mother about the touching until after B.E’s November 2002 sleepover party. She was a close friend of the other complainants. They were like sisters and were friends for several years, they went to sleepovers and on trips together, and their parents associated with each other. N.E. testified that she had discussed defendant’s conduct with her friends, before the November 2002 sleepover and then again at the sleepover.

The jury found defendant not guilty of penetrating N.E.’s sex organ with his finger. However, it did find him guilty of touching N.E.’s sex organ for the purpose of sexual gratification.

6. Complainant S.O.

Defendant was charged with predatory criminal sexual assault against S.O. for penetrating her sex organ with his finger and with aggravated criminal sexual abuse for touching S.O.’s sex organ for the purpose of sexual gratification. According to the charges, these two counts represented alternative theories relating to the same act, which occurred sometime in the fall of 2001, while S.O. performed a stretch against a mat by a vault. In addition, defendant was charged with predatoxy criminal sexual assault against S.O. for penetrating her sex organ with his tongue sometime between November 2000 and November 2002, while S.O. stretched her hamstring.

At trial, S.O. testified that she began going to the gym when she was six years old. She left in November 2002. As to the charged conduct, S.O. testified that, in the fall of 2001, when she was 11 or 12 years old, she was performing a back straddle stretch against a mat, near a vault and the storage area. She lay on her back and defendant straddled her, facing the mat, and pushed down on her knees to help the stretch. S.O. stated that defendant moved his left hand to pull her leotard over, exposing her vaginal area. He then took his right hand and touched her vaginal area, specifically, “inside the two flaps over the raised bump,” with one finger. He moved his finger back and forth. His finger touched the inside flaps of her vagina for 12 to 15 seconds, but his finger did not go inside the opening of her vagina. She agreed that, on any day in the fall of 2001, there might have been 100 to 200 people present in the gym. There were people on the floor and on the balance beam during this incident.

Describing another charged incident, S.O. testified that, approximately two years before she left the gym, she injured her left hamstring. She stretched her hamstring by lying on her back with her right leg on the ground and her left leg in the air. S.O. was stretching by the vault and foam pit area, with her feet toward the pit, a big blue mat on her left side, and a wall on her right side. Defendant kneeled on her right side with his right hand on her right leg and his left hand on her left leg to assist her with the stretch. He moved her leotard with his left hand and touched her vagina with his right hand. He then touched her vagina with his tongue “on top of the two flaps.” His tongue did not go inside her vagina. There were people on the uneven bars. However, the mat between her and the bars was four or five feet higher than her body, which was lying on the ground. No one was on the vault. She could not recall whether people were on the floor.

S.O. then testified to two categories of uncharged conduct. First, S.O. testified that, during the approximately two seasons prior to her departure from the gym, defendant touched her vagina “about 20 times” during back straddle stretches. S.O. testified that, at some point, she told defendant to stop because it was “bad touching” and inappropriate. She could not recall the words she used and remembered speaking very quietly, in a whisper. S.O. did not know if defendant heard her. After she spoke up, defendant touched her again, but not as much as before. However, in a November 2002 interview, S.O. told investigators that defendant stopped touching her after she told him to stop.

Second, S.O. testified that the gym held a sleepover and that the girls put panel mats over beams and slept under the beams, like in forts. She testified that she was lying next to defendant. Liz was the closest person to defendant on the other side. S.O. conceded that her memory about the incident was not “crystal clear.” She testified that she was trying to go to sleep, and defendant touched her vaginal area with his finger through her pajama shorts. He then picked her up and rubbed the front of her body against his body.

During a November 2002 interview with investigators, S.O. did not mention that defendant used his tongue to touch her vagina during a hamstring stretch. S.O. testified that she did not tell investigators about the tongue incident because she was embarrassed and nervous. After the November 2002 interview, S.O. met with a counselor. After several meetings, S.O. admitted to the counselor that she had not told the investigators that defendant touched her with his tongue. S.O. told assistant State’s Attorneys in October 2003 that defendant used his tongue during a hamstring stretch.

In a December 2004 interview, S.O. told investigators, for the first time, that defendant inappropriately touched her at a sleepover. In that interview, S.O. did not tell investigators that defendant touched her vagina during the sleepover, but she told them about the tongue incident. She also mentioned, for the first time, that defendant took her into a private area at the gym, the castle room, to ice part of her body and that he inappropriately touched her. At trial, S.O. could not recall why she was in the castle room or what defendant said or why he was there. She stated, “I just remember being in there. It was just me and [defendant]. And I remember he did something inappropriate.”

On January 8, 2005, for the first time and three weeks before trial, S.O. told assistant State’s Attorneys that defendant touched her during wheel exercises. At trial, S.O. admitted that she never mentioned touching during wheel exercises in her first videotaped interview in 2002, to her counselor, during her second videotaped interview in 2004, or to her parents. She testified that she did, however, have conversations with other girls after their interviews, specifically A.S., where they said that they had been touched during wheel exercises. S.O. testified that her conversation with A.S. made her remember that it had also happened to her.

On cross-examination, when asked how many times she had been inappropriately touched by defendant prior to the fall 2001 charged incident, S.O. stated that she had not counted, but could estimate “maybe four times.” She stated that the incidents were a “blur.”

S.O. further testified that, approximately two years before she left the gym, she and S.H. were performing press handstands on the vault runway across from the floor. According to S.O., S.H. told her that defendant put his fingers down S.H.’s leotard. S.O. testified that she approached defendant and whispered in his ear, “[S.H.] said that your fingers went down her leo.” Defendant responded that he could have been looking around the gym and that it could have accidently slipped in. S.O. did not tell the investigators about her conversation with S.H. during the press handstands or her conversation with defendant regarding his touching S.H. during that exercise. She testified that she did not realize that his claiming it was an accident was important.

According to S.O., in the summer of 2002, at home, she told her mother that defendant inappropriately touched her. She told her mother that it had not happened before, that it happened only once, that defendant was spotting her when it occurred, and that she thought that it was an accident and “no big deal.” S.O. testified that, although she told her mother it happened only once, that was not the truth. She did not tell her mother that defendant had touched her vagina. She said that he touched her “private.”

S.O. was present at B.E’s sleepover on November 23, 2002. She participated in a conversation with other girls at that sleepover about defendant inappropriately touching girls. Frior to the sleepover, S.O. had discussed defendant’s touching with N.E. and B.E S.O. and her teammates attended defendant’s wedding. S.O. was a close friend of her teammates.

The jury found defendant not guilty of penetrating S.O.’s sex organ with his finger, but guilty of touching S.O.’s sex organ for the purpose of sexual gratification. It found defendant not guilty of penetrating S.O. with his tongue.

7. Complainant C.E.

Defendant was charged with two counts of predatory criminal sexual assault against C.E. for penetrating her sex organ with his tongue and finger. He was charged with aggravated criminal sexual abuse for touching C.E.’s sex organ for the purpose of sexual gratification. All three acts allegedly occurred between November 6 and 8, 2002, in a preschool room.

C.E- was the first child to publicly accuse defendant of inappropriate touching. At trial, C.E. testified that she began taking classes at the gym when she was four years old. She left the gym when she was seven years old.

As to the charged conduct, C.E. testified that, in November 2002, she scraped her knee in the gym and defendant took her into a smaller room off of the main gym to get a Band-Aid. The room was a small kitchen with a microwave, a refrigerator, and counters. Defendant took a Band-Aid from a closet and then took C.E. into the house room (a preschool room that has a toy house inside). No one else was in the house room. C.E. was wearing a leotard. They went into the house, and C.E. sat down on the carpet. Defendant was in front of her. Defendant pulled the bottom of her leotard over and used his finger to touch her privates. She could not recall if he used more than one finger. She felt defendant put his finger in the opening of her vagina. C.E. testified that, after defendant removed his finger, he used his mouth and put his tongue inside her vagina. C.E. testified that defendant tried to pull down the top of her leotard, but she pulled it back up. Defendant then touched her vaginal area with his fingers some more. After defendant stopped, he handed her the Band-Aid and she returned to the gym. As they were walking out of the house room, defendant told her not to tell anyone about the incident.

C.E. testified to between 56 and 67 incidents of uncharged conduct. First, C.E. testified that defendant had previously touched her the same way as during the “Band-Aid incident.” He had touched C.E. primarily inside her vagina with his finger and tongue in some of the smaller rooms off of the main gym, including the music room, the house room, and the castle room, and with his finger: (1) in the main gym, behind mats; (2) when she was doing splits by a vault; and (3) in the foam pit. C.E. testified that defendant shut and sometimes locked the doors to the smaller rooms when he took her in them and touched her. She recalled being touched once in the music room between January and June 2002 but could not recall if it happened in the music room more than once. At that time, other gymnasts were chasing defendant to squirt him with a water bottle. He grabbed C.E. and ran into the music room with her and touched her by a piano. The other girls, including Crystal Soloff, were banging on the door for a full 10 minutes while defendant touched C.E. She could not recall if it was with his hands or his mouth, but “it was probably [with both] because normally it’s both.”

On cross-examination, C.E. testified that, whenever defendant took her to other rooms over the three-year-period, she would be in the middle of her gymnastics class. At the time of the Band-Aid incident, C.E. had several coaches, including Diane O’Brien, Justin Hawk, Sandy Huston, and Liz. Accordingly, defendant would approach whoever was coaching her at the time and say, “I need [C.E.] for a second.” Specifically, C.E. recalled defendant telling O’Brien that he needed to take C.E. for a second. She testified that, when defendant took her into other rooms, she would be gone for approximately 10 minutes. These incidents occurred while the rest of her group was doing gymnastics. She knew what he was going to do, but did not say anything because she was not sure what to say and was scared. C.E. did not complain to anyone. She was asked, “That went on for three years, and during that time he took you out as many as 50, 60 times, could that be right?” She replied, “Could be, I’m not sure.” Later, she agreed that it happened around 50 or 60 times.

Regarding other uncharged conduct, C.E. testified that defendant showed her his penis on one occasion and tried to touch his penis to her mouth by taking her head with his hands and pushing it down. She could not recall where she was when she saw his penis, or when the event occurred.

C.E. testified to uncharged conduct that allegedly occurred at a gym sleepover. Close to 100 girls were present at the sleepover. They were sleeping all over the gym, in forts they made with mats. C.E. testified that, at the sleepover, defendant touched her in the vagina, in the gym behind a mat. In addition, C.E. testified that defendant came into her fort and touched her privates. Apparently, this touching was previously undisclosed and came out for the first time at trial. C.E. testified that she was in the fort with her friend, Crystal Soloff. Defendant came into the fort, got into C.E.’s sleeping bag with her, and touched her vagina under her pajamas. She testified that neither she nor Soloff was asleep when this occurred. They continued talking, telling stories, and laughing. C.E. testified that Soloff was looking at her and laughing and that defendant was laughing while he reached into her sleeping bag, pulled her pajamas aside, and put his hands on her vagina. After this occurred, they went out of the fort and played in the gym.

C.E. also testified to three incidents of uncharged conduct involving the foam pit. The first touching in the pit allegedly occurred at the sleepover, after defendant touched C.E. in the fort. Specifically, C.E. left the fort and went into the pit with her friends and defendant. There, defendant made her hold his penis. Approximately five or six girls were in the pit while defendant touched her and made her hold his penis. The lights were on and about 100 other girls continued to play in the other areas of the gym. Other coaches were also present.

In addition, C.E. testified that defendant behaved inappropriately in the pit on two other occasions. She testified that, on one occasion, defendant again made her touch his penis with her hand. She was buried up to her shoulders in the pit; defendant was next to her in the pit and was also somewhat buried. He took his penis out of his shorts, grabbed her hand, and put her hand on his penis. On a second occasion, also while buried in the foam pit, defendant touched his penis to her vagina. C.E. explained that defendant opened up the bottom of her leotard, took his penis out of his pants, and put his penis on her. Numerous other people were present in the gym during these acts. C.E. testified that once or twice when defendant touched her, she would say, “I don’t like that,” but she did not say it every time.

Finally, with respect to uncharged conduct, C.E. testified that, on the same day as the Band-Aid incident, defendant touched her while stretching her behind a mat. Crystal Soloff was stretching next to her.

About a week after the Band-Aid incident, C.E. had a sleepover at her house with some of her friends. She talked to her friends about defendant touching her, but she did not tell her friends everything. That night, C.E. told her mother that defendant assaulted her, but she did not provide details or tell her everything. C.E. said only that defendant touched her privates with his finger and tongue. C.E. told her mother that it happened all the time, too many times to count. After the sleepover, she did not return to the gym again.

A few days after telling her mother, C.E. was twice interviewed by personnel at the Du Page County Children’s Center. She tried to tell them everything that she could remember. C.E. told them that it happened “a lot.” Of all the people she spoke to about the incidents, she felt most comfortable talking with Dee Fisher, a counselor. At the time of trial, C.E. had met with Fisher every week for two years. She told Fisher that “it happened all the time.”

The jury found defendant not guilty of penetrating C.E.’s sex organ with his finger or his tongue. However, it found him guilty of touching C.E.’s sex organ for the purpose of sexual gratification.

8. Additional Complainants

Seven other complainants accused defendant of inappropriate touchings similar to those described above. Specifically, defendant was charged with: (1) touching B.H. on her sex organ sometime between February 1999 and 2001, in the foam pit; (2) touching R.H.’s sex organ in 1999 or 2000 in the foam pit; (3) touching A.V’s sex organ sometime in the summer of 2000, during wheel exercises, and sometime between January 2, 2002, and June 2002, during straddle stretches near a vault or during wheel exercises; (4) touching T.W.’s sex organ in September 2002, during a stretch exercise near a vault, and on her breast on a Wednesday in 2002, during wheel exercises; (5) touching K.G. on her sex organ in the summer of 2001, during stretch exercises on the spring floor; (6) touching A.W.’s sex organ sometime between September 2001 and June 2002, during straddle stretches near a mat; and (7) touching A.C.’s sex organ sometime between September 1 and 30, 2002, during a “planche” exercise. These complainants testified at trial about the charges as well as uncharged conduct. The jury found defendant not guilty of the charges.

9. A.T.S.

After the State concluded its presentation of the complainants of charged conduct, the jury was instructed that evidence would be presented that defendant was involved in another uncharged offense. It was instructed that such evidence would be received on the issues of defendant’s intent, absence of innocent mental state, and any matter to which it was relevant. “It is for you to determine whether the defendant was involved in this offense[ ] and[,] if so, what weight should be given to this evidence.”

A.T.S. testified that, at the time of trial, she was 10 years old. When she was five or six years old, in approximately July 1999, she took her first gymnastics class at Rush-Copley Healthplex. Defendant was her coach. She liked him and thought he was funny. On direct examination, A.T.S. stated that, on her last day of class, after stretching, defendant grabbed her “private” over her clothes while assisting her with a cartwheel. He cupped her “private” in the middle of the cartwheel, and, when she was finished with the cartwheel, he said, “good job.” It felt like his hand cupped her private area. This occurred one time. Six or seven other classmates were present. After class, A.T.S. told her mother about the incident.

A.T.S. was not asked about this incident again until three years later, in a December 26, 2002, interview. There, she said that she felt like she had been pinched. She also stated that she did not like defendant’s hand on her hip while he helped her with the cartwheel. She agreed that her memory at trial of the incident was different from her memory during the 2002 interview.

Mary Marx testified that she worked at the Rush-Copley Healthplex as an activities director. She identified defendant as a tumbling coach at that facility from September 1998 to September 1999. Marx received a call in July 1999 from A.T.S.’s mother. As a result, Marx had a meeting with defendant and informed him that A.T.S.’s mother had complained that defendant touched A.T.S. between her legs. In response, defendant was shocked and “very concerned, very upset, and just very, very concerned. *** He said that he never intentionally would touch someone in their private area, that during a stretch or an exercise that it could have been misinterpreted, his hand could of [sic] slipped.” Defendant’s demeanor during the conversation was “upset, very emotional. He was even a little teary eyed over it.”

Marx also met with her manager, A.T.S.’s mother, and defendant. Defendant again explained that he would never intentionally do anything to upset or hurt a child, and he was very upset and concerned. He demonstrated methods for spotting the gymnasts during class and stated that, if his hand brushed A.T.S. or slipped, it might have been misinterpreted. As a result of her conversations with defendant and A.T.S.’s mother, Marx did not contact law enforcement. She was contacted by law enforcement two years later.

The State rested its case. Defendant’s motion for a directed verdict was denied. The trial court noted that defendant’s primary argument in his motion for a directed verdict was that the witnesses were so lacking in credibility that the charges must be dismissed. The court disagreed, but noted that there was “certainly impeachment of various witnesses.”

B. Defendant’s Case

1. Witnesses

About 100 witnesses testified on defendant’s behalf. Some of their testimony is summarized as follows.

Defendant’s first witness, Andrea Arndt, was the gym’s office manager. Arndt testified about the gym’s activity level and layout. She explained that parents often observed their children from inside the gym, from the hallways leading to the gym, and from the parking lot, looking inside through a wall of windows. The music room had windows, a wall with an opening that children could climb through, and two doors: one leading to the gym and the other to the hallway. The house room had four windows and three doors. The castle room had a window. Both the gym and the hallway were busy areas. From 2001 to 2002, about 100 to 150 students, instructors, and others were present in the gym at any one time. The hallway contained cubbyholes for storage of the children’s personal belongings, and parents would congregate in the hallways before, during, and after practice. Video cameras were installed in 2003.

Arndt testified that she never saw defendant leave his coaching rotation. Arndt never saw any coaches send students to defendant. She never saw defendant stretch any girl behind a mat on the vault runway, nor did she see a mat placed vertically against a vault. She never saw defendant inappropriately touch a student.

Several witnesses testified that the gym was wide open, that one could view all of the children and activities in the gym from different areas, and that parents and others often watched the classes from the gym’s doors and windows. Those witnesses included: parents Mary Ann Drafke, Tonya Glock, Laura Clark, Sharon Soloff, Marilyn Heisler, Grace Carpenter, Russell Seed, and Judi Hefner; coaches Michelle Drozd and Whitney Baldwin; and gym owner (and defendant’s mother) Lynda Lynch.

Several witnesses, in addition to Arndt, testified to the high number of people present in the gym each day and to the high traffic areas in the gym, including the areas near the “resi mats” and the hallway leading to the gym from the preschool rooms. Those witnesses included: coaches Diane Douville, Diane O’Brien, Michael Jenkins, Russell Millard, and Jennifer Rolland; parents Lidia Stefani and Elaine Edgeworth; gymnastics-coaching experts Thomas Jones and Paula Ann Noe; and gymnasts Marissa Woosner and Colleen Finegan.

Various witnesses testified that defendant was extremely vocal and coached highly skilled students. Their execution of advanced, extremely dangerous tricks required him to closely supervise and spot the gymnasts by placing his hands on their chests, backs, upper legs, abdomens, and buttocks. Because defendant’s students were talented and he had a loud voice while leading his team, he and his team were high profile within the gym. Many people, including instructors Justin Hawk, Diane Douville, Dawn Doychak, and Michelle Drozd, parents Mary Ann Drafke, Laura Clark, Deborah Zach, Kathy Horner, Marilyn Heisler, and Maria Wossner, and gymnasts Rachel Heisler and Rachel Seed, often watched defendant and his students.

In addition, witnesses testified that they observed defendant’s behavior over the relevant time period and that they never witnessed defendant inappropriately touch anyone. Those witnesses included: cheerleading program director Dawn Doychak; coaches Diane Douville, Michael Jenkins, Ryan Kamykowski, Justin Hawk, Sandra Campbell, and Whitney Baldwin; parents Sheila Gatto, Mary Ann Drafke, Laura Clark, Marilyn Heisler, Russell Seed, Grace Carpenter, and Jeffrey Barnum; and gymnasts Ellen Daneluzzi, Ciana Carpenter, Bridget Conley, and Colleen Finegan.

Coaches Diane O’Brien, Justin Hawk, and Rachel Strang agreed that it was a strict gym policy that gymnasts stayed within their groups. Each gymnast was required to be paired up with another team member. Coaches did not send girls from their groups to defendant. Witnesses testified that they never saw defendant isolate a student in a private area of the gym. Those witnesses included: teachers Carolyn Rotunda, Sandra Campbell, and Sheila Gatto; parent Grace Carpenter; coaches Michael Jenkins, Justin Hawk, Traci Scardina, Kathleen Baldwin, and Russell Millard; and students Cheryl Huston, Shannon O’Brien, Christine Campanelli, Ellen Daneluzzi, and Bridget Conley. In addition, witnesses who testified that they never saw defendant remove any girl from the main gym included: Dawn Doychak, Sheila Gatto, Sandra Campell, Dawn Drozd, Brittany Gatto, Marilyn Heisler, Arianna Zack, and Casey and Shannon Feicco.

In 2000, defendant coached an upper-level group of students. Although C.E. took classes at the same time defendant’s team practiced, defendant was not her coach. According to Arndt, on November 8, 2002, the date that defendant allegedly touched C.E. in the house room while applying a Band-Aid, several team parents were utilizing the castle room to prepare for the annual home gymnastics competition. Dawn Doychak testified that she spent a substantial period of time in the preschool rooms on November 6 and 8, 2002, and that she never saw defendant in those rooms on those dates. Witnesses who testified that they never saw defendant remove C.E. from the gym or her group included: teachers and coaches Rachel Strang, Sandra Campbell, Traci Scardina, Justin Hawk, Russell Millard, and Cheryl Huston; and gymnasts Kylie Clark and Marissa Wossner.

Coach Michael Jenkins testified that, on November 8, 2002, the day of C.E.’s alleged Band-Aid incident, he saw and heard C.E. and another girl ask for a Band-Aid. He watched the girls accompany defendant into the front office to look for Band-Aids. Both girls returned to the gym two to three minutes later, followed by defendant almost immediately thereafter.

Russell Millard, who was to coach C.E. on November 8, 2002, testified that, prior to coaching her at 5:30 p.m., he took several items into the preschool rooms in preparation for the upcoming weekend competition. He testified that there were people in the castle room at all times and that he saw Diane Grosso in the house room. Millard returned to the main gym, where he saw C.E. and Crystal Soloff. Defendant was near the bars, nowhere near C.E.

Crystal Soloff testified that she was C.E.’s friend. She recalled that, on November 8, 2002, prior to practice, C.E. fell and injured herself on her hip while playing on the bars with Soloff. C.E. informed defendant of the injury, and defendant told her to wash the wound in the bathroom. Soloff went with C.E. to the bathroom, and C.E. washed her wound. Meanwhile, defendant searched for a Band-Aid in the gym, by the office, but was unable to find one. C.E. and Soloff followed defendant to the kitchen between the castle and house rooms. Soloff leaned against the door and watched defendant take a Band-Aid from the cabinet and place it on C.E.’s hip. Soloff was approximately one foot away from defendant and C.E. Defendant did not touch C.E. near her private area. While standing in the kitchen, Soloff heard people talking in both the house and castle rooms. Immediately after the Band-Aid was applied, Soloff and C.E. ran back to the gym and began practicing. Soloff did not recall C.E. going near a mat to do straddle stretches later that day, and she testified that she did not do straddle stretches by a mat that day. Soloff did not recall any coach ever taking C.E. away from the group in the gym to another location in the building. She did not recall defendant grabbing C.E. and bringing her into the music room, being locked out of the music room, or banging on the door to be let in.

Soloff was present at the sleepover where defendant allegedly touched C.E. She recalled defendant peeking into their fort to tell them to go to sleep. Defendant was present for “like maybe five seconds at the most.” Afterwards, the lights were turned off, and C.E. and Soloff fell asleep. Soloff did not witness any inappropriate conduct. She never saw defendant in the foam pit with C.E.

In her years at the gym, Soloff never saw defendant touch any girl in a private area of her body. Defendant was never her coach, but she watched him “a lot” because he was one of the best coaches at the gym.

Diane O’Brien testified that, from the summer of 2002 through November 2002, she coached C.E. Defendant never coached C.E. In addition to the gym’s strict rule that gymnasts must stay with their own coaches, O’Brien had “Diane’s Rule,” a rule that her students could not ever leave her group without her permission. When asked whether defendant ever took any girl out of her class, O’Brien responded “absolutely not.” No coaches ever took girls out of her class. Defendant never took C.E. out of the gym. O’Brien never saw defendant leave his groups of gymnasts, take girls out of his groups, or take girls out of the gym.

In the State’s case-in-chief, a student named A.W. had testified that she saw defendant take C.E. out of O’Brien’s group on three occasions, that she once asked O’Brien where defendant went with C.E., and that O’Brien said that she did not know. In response, O’Brien testified that A.W never came to her and asked about defendant taking C.E. out of class. She reiterated that C.E. was never taken from her class.

In late October 2002, coach Justin Hawk witnessed defendant applying Icy Hot to S.O.’s hamstring. Hawk stood two to three feet away from defendant and had a conversation with defendant while defendant applied the Icy Hot. Hawk could see defendant’s hands at all times. Defendant’s hand never went underneath S.O.’s leotard; his hand was about five inches away from her leotard, closer to S.O.’s knee. Hawk recalled that Liz was standing on the floor and that another coach, Michelle Drozd, was nearby getting a s