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                              Appellate Court                           Date: 2017.07.19
                                                                        14:23:27 -05'00'



                   People v. Mayo, 2017 IL App (2d) 150390



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           EDUARDO MAYO, Defendant-Appellant.



District & No.    Second District
                  Docket No. 2-15-0390



Filed             May 16, 2017



Decision Under    Appeal from the Circuit Court of Kane County, No. 13-CF-1656; the
Review            Hon. James C. Hallock, Judge, presiding.



Judgment          Reversed.


Counsel on        Michael J. Pelletier, Thomas A. Lilien, and Ann Marie Fick, of State
Appeal            Appellate Defender’s Office, of Elgin, for appellant.

                  Joseph H. McMahon, State’s Attorney, of St. Charles (Patrick
                  Delfino, Lawrence M. Bauer, and Steven A. Rodgers, of State’s
                  Attorneys Appellate Prosecutor’s Office, of counsel), for the People.



Panel             JUSTICE HUTCHINSON delivered the judgment of the court, with
                  opinion.
                  Presiding Justice Hudson and Justice Birkett concurred in the
                  judgment and opinion.
                                               OPINION

¶1       Defendant, Eduardo Mayo, appeals from the judgment of the circuit court of Kane County
     finding him “not not guilty” of aggravated criminal sexual abuse (720 ILCS 5/11-1.60(d)
     (West 2012)) and battery (720 ILCS 5/12-3(a)(2) (West 2012)). Because the evidence was
     insufficient to support the trial court’s finding as to either offense, we reverse.
¶2       Defendant was indicted on one count of aggravated criminal sexual abuse for knowingly
     committing an act of sexual conduct for the purpose of his or the victim’s sexual gratification
     or arousal, where the victim was at least 13 but under 17 years old and he was at least 5 years
     older than the victim (720 ILCS 5/11-1.60(d) (West 2012)), and one count of battery for
     knowingly making physical contact of an insulting or provoking nature by grabbing the victim
     (720 ILCS 5/12-3(a)(2) (West 2012)). The trial court found defendant unfit to stand trial and
     scheduled a discharge hearing (725 ILCS 5/104-23 (West 2012)).
¶3       A discharge hearing is not a criminal proceeding. People v. Olsson, 2011 IL App (2d)
     091351, ¶ 4 (citing People v. Waid, 221 Ill. 2d 464, 470 (2006)). A discharge hearing takes
     place only after a defendant has been found unfit to stand trial, and it is a proceeding to
     determine only whether to enter a judgment of acquittal, not to make a determination of guilt.
     Id. The question of guilt is deferred until the defendant is fit to stand trial. Id. If the evidence
     presented at a discharge hearing is sufficient to establish the defendant’s guilt, no conviction
     results; instead, the defendant is found “not not guilty” (id.) and is subject to further treatment,
     ranging from one to five years depending on the offense. 725 ILCS 5/104-25(d) (West 2012).
     If, at the expiration of the treatment period, the defendant remains unfit, the court must
     determine whether the defendant is subject to involuntary commitment; if so, the commitment
     cannot exceed the maximum sentence to which the defendant would have been subject had he
     been convicted in a criminal prosecution. 725 ILCS 5/104-25(g)(2) (West 2012). Although a
     judicial finding of not not guilty does not result in a conviction, the standard of proof is the
     same as that required for a conviction. People v. Orengo, 2012 IL App (1st) 111071, ¶ 25.
¶4       The following evidence was established at defendant’s discharge hearing. Defendant, who
     was 23 years old, suffered a brain injury when he was 5 months old. Defendant lived in
     Chicago with his mother, Leonor Gonzalez, her husband, and defendant’s brother and sister.
¶5       On August 10, 2013, defendant went with Gonzalez and her friends to a Walmart in East
     Dundee. At approximately 9:15 p.m., while the group was eating inside near the store’s front
     entrance, Gonzalez’s friend’s husband went to a nearby bathroom. When defendant followed,
     Gonzalez told her friend’s husband to keep an eye on defendant. A video surveillance
     recording showed that, during a period of about 45 minutes, defendant entered and exited the
     bathroom six times.
¶6       The alleged victim was a 15-year-old male with Down Syndrome. On August 10, 2013, the
     victim, his father, and his 12-year-old sister went to the East Dundee Walmart.
¶7       At approximately 9:36 p.m., while his sister waited outside, the victim entered the
     bathroom. Defendant entered the bathroom a few seconds later. At approximately 9:37 p.m.,
     defendant exited the bathroom, but the victim remained inside. At approximately 9:40 p.m., a
     Walmart employee entered the bathroom. A few seconds later, defendant reentered the
     bathroom. At about 9:41 p.m., the employee exited the bathroom. About 30 seconds later, the



                                                  -2-
       victim exited, followed closely by defendant. The video showed the victim, as he walked away
       from the bathroom, looking over his shoulder at defendant.
¶8          According to the victim, as he was standing near the sink in the bathroom, defendant
       reached out with his hand and grabbed the victim’s penis. The victim had his pants on when
       defendant grabbed him. The victim described the grab as hard.
¶9          The victim did not report the incident to anyone until August 12, 2013. On that morning,
       the victim told his sister and father that a man had grabbed him in the groin area while in the
       Walmart bathroom. The victim’s father reported the incident to the East Dundee police.
¶ 10        On August 14, 2013, Pam Ely, an investigator with the Kane County children’s advocacy
       center, and Detective Dan Duda of the East Dundee police department met with the victim. The
       victim told Ely that while he was in the Walmart bathroom a man touched him really hard. The
       victim pointed to his groin.
¶ 11        When Ely met with the victim a second time, she showed him a still photograph from the
       Walmart surveillance video, which showed the victim and defendant exiting the bathroom.
       The victim pointed to defendant and said that he was the one who grabbed him. In doing so, he
       pointed to his groin area.
¶ 12        Ely and Duda spoke to defendant with Gonzalez present. Ely identified herself, and Duda
       identified himself as a police officer. When Ely showed defendant an anatomical male
       drawing, he identified the penis as a “pee pee.”
¶ 13        Gonzalez told Ely that she spoke English. Ely spoke to Gonzalez in English and described
       her responses as appropriate to the questions. According to Ely, when she told Gonzalez that
       she and Duda were there because defendant had possibly touched someone inappropriately in a
       bathroom, Gonzalez responded that the Chicago police had told her that defendant had a
       problem touching others in bathrooms. Ely later reviewed Chicago police reports, but there
       were none involving defendant. Gonzalez also said that, once when she was in a park with
       defendant, he had an erection. According to Ely, Gonzalez told her that, because defendant had
       ordered $800 worth of pornography via cable television, she had blocked his ability to do so.
¶ 14        Gonzalez denied telling Ely and Duda that defendant had a problem touching others at the
       park. When Gonzalez was asked if she had a problem with defendant ordering pornography at
       home, she admitted that he “did once.” She explained that the cable bill was about $700
       because someone had ordered “like wrestling and movies, all kind of, not just [pornography].”
       Gonzalez could not tell who ordered the various items. She then blocked the ability to order
       pornography.
¶ 15        Gonzalez remembered that a man and a woman came to her house to talk about defendant.
       When asked if she recalled telling them that defendant had a problem touching others
       inappropriately, Gonzalez did not recall doing so and explained that she was not worried about
       defendant touching others inappropriately because he never had, other than “like an arm, that’s
       all.” She also denied telling Ely and Duda that the Chicago police had told her about defendant
       touching others at a park. She admitted that the police brought defendant to her at a park
       because somebody had reported seeing defendant with an erection. According to Gonzalez, the
       police told her to take care of defendant and not let him go out by himself. When asked if
       defendant had been suspended from school for touching someone in the bathroom, Gonzalez
       admitted that he had been suspended once but only for fighting. According to Gonzalez,
       defendant is not violent, and she had never seen him touch anyone sexually. Although she


                                                  -3-
       never discussed sex with defendant, she had told him not to touch anyone or let anyone touch
       him.
¶ 16       Gonzalez described defendant as being physically 24 years old but acting like a 5- or 6-year
       old. According to Gonzalez, defendant must be told what to do. For instance, if she did not tell
       him to change his clothes, he would not do so.
¶ 17       Dr. Mark Kuzia, a licensed clinical psychologist for the Kane County diagnostic center,
       conducted a fitness evaluation of defendant. Kuzia met with defendant. Defendant provided
       one- or two-word responses to Kuzia’s questions. Because of defendant’s limited ability to
       communicate, Kuzia relied primarily on a 2012 evaluation report by Dr. Dan Vogel. Kuzia did
       not believe that any further testing needed to be done, as Vogel’s assessment was recent and
       defendant’s condition was long-term and not likely to change. Kuzia recalled that Vogel’s
       report mentioned that defendant had had an incident at school involving “inappropriate sexual
       contact in the bathroom.”
¶ 18       Kuzia was concerned that defendant was a potential danger to society based on the charged
       incident, the prior sexual incident at school, and his intelligence quotient (IQ) of 48. Kuzia
       opined that defendant would need comprehensive care and consistent monitoring to ensure that
       his behavior does not violate others who are vulnerable.
¶ 19       According to Kuzia, defendant is moderately retarded and developmentally disabled.
       Defendant scored almost as low as he could score on the IQ tests. Defendant lacks executive
       functioning, which is the ability to decide what he needs to do next. He has difficulty with any
       question requiring a fluid thought process. According to Kuzia, defendant is not able to “move
       forward with much forethought or intent.” Kuzia described defendant’s ability to communicate
       as practically nonexistent. Defendant displayed a blank expression most of the time and looked
       confused. Kuzia described him as verbal but nonresponsive. Kuzia admitted that he learned
       from Vogel’s report that defendant is optimistic, has a pleasant disposition, and is easily
       motivated to perform tasks with direction. Vogel’s report was not admitted into evidence.
¶ 20       Kuzia’s written report was admitted. In that report, Kuzia described defendant as being in
       the extremely low range of cognitive functioning. According to the report, defendant does not
       have any criminal history. Kuzia opined in the report that there is a legitimate concern that
       defendant lacks the insight to recognize whether any sexual acting out is inappropriate. That,
       combined with the reported sexual incident at the school, indicates that defendant needs to be
       monitored consistently. The report concluded that, because defendant lacks the cognitive
       capacity to understand the inappropriateness of his behavior, he requires comprehensive care
       and consistent monitoring to ensure that his behavior does not violate others.
¶ 21       Defendant called three witnesses. Rita Kelly, the administrator of Neighborhood
       Opportunities, operated a community integrated living arrangement (CILA) where defendant
       had resided for the previous year with three other males. After being charged, defendant was
       placed there by the Department of Human Services.
¶ 22       As part of defendant’s individual service plan, a risk assessment was completed. That
       assessment indicated that defendant was not a risk to be violent. According to Rita, defendant
       has not shown any signs of violence while living at the CILA. Nor have there been any
       complaints about defendant being sexually aggressive. Rita described him as very passive. He
       requires 24/7 monitoring, however, because he will “stand there until somebody tells him what
       to do.”


                                                  -4-
¶ 23       Erin Kelly, Rita’s daughter, worked for Neighborhood Opportunities. She developed
       individual service plans for each resident at the various CILAs. In that capacity, she had known
       defendant for about a year. During that time, she had never seen defendant act aggressively or
       sexually.
¶ 24       According to Erin, an inventory of client and agency planning (ICAP) measures motor
       skills, social and communication skills, personal living skills, and community living skills.
       Defendant’s ICAP showed his overall range to be that of someone three years, five months old.
       His highest score, for personal living skills, was that of someone six years, two months old. His
       score for motor skills was that of a three-year-old, for social and community skills that of a
       two-year, eight-month old, and for community living skills that of a three- to four-year-old.
       According to Erin, defendant was assessed for behavioral issues by a behavioral specialist, but
       he was not placed in a behavioral program. His only behavioral issue was that he cried when
       others around him were yelling. Erin had never seen or heard of any complaints about
       defendant attacking anyone. Nor had she seen him be overly concerned about anyone’s body.
       She had not seen him engage in any behaviors that would indicate that he understands sexual
       acts. Defendant has attended community dances and has not been involved in any incidents.
       She admitted that one time he struck out at someone who was teasing him, but he did not make
       contact.
¶ 25       Megan Kelly, also Rita’s daughter, worked as a direct service professional at
       Neighborhood Opportunities. Her duties included cooking, cleaning, assisting residents with
       daily activities, and helping them with their goals. Although she was assigned to a different
       CILA than defendant, she worked with him at a workshop Monday through Friday from about
       9 a.m. to 3:30 p.m. She described defendant as very shy. She had received no complaints about
       his behavior. He had no problems with using the bathroom and did not touch others
       inappropriately. According to Megan, defendant knows how to care for and groom himself.
       She had no specific concerns about defendant and had never seen him in a fight. If others fight
       or yell, he will cry.
¶ 26       The trial court found that the victim’s failure to report the incident until two days later,
       considering the victim’s developmental disability, did not indicate that the incident did not
       occur. The court found that the victim’s looking back at defendant upon exiting the bathroom
       was “very telling.” The court found that the victim was credible. The court also found Ely and
       Kuzia credible. Although the court found the three defense witnesses “very credible, very
       believable,” it commented that their testimony was “really after the fact” in that “[t]hey came
       into contact with the defendant after this particular event.” The court found that the evidence
       was sufficient to show that defendant touched the victim for defendant’s sexual gratification.
       Thus, the court ruled that defendant was “not not guilty” as to both counts.
¶ 27       Defendant filed a motion to reconsider. In denying that motion, the trial court noted that
       Kuzia could rely on hearsay—specifically, Vogel’s report—to formulate his opinions. The
       court recalled that the evidence showed that defendant ordered “just over $800 worth of
       pornography and wrestling.” The court found that, based on the surveillance video and the
       victim’s testimony, it was “certain that [defendant] was acting out sexually.” The court found
       that defendant’s walking in and out of the bathroom several times showed that he was seeking
       a victim. The court added that the fact that the bathroom was a “secret place” further showed
       defendant’s intent. Defendant filed a timely notice of appeal.


                                                   -5-
¶ 28        On appeal, defendant contends that the evidence was insufficient to prove beyond a
       reasonable doubt that he knowingly touched the victim for the purpose of defendant’s sexual
       gratification or arousal or that he knowingly touched the victim in an insulting or provoking
       manner. The State responds that, when the evidence is viewed in the light most favorable to the
       prosecution, it was sufficient to prove that defendant was not not guilty of aggravated criminal
       sexual abuse and battery.
¶ 29        As noted, although a judicial finding of not not guilty does not result in a conviction, the
       standard of proof is the same as that required for a conviction. Id. Thus, the applicable standard
       of review is whether, after viewing the evidence in the light most favorable to the prosecution,
       any rational trier of fact could have found the essential elements of the crime beyond a
       reasonable doubt. People v. Peterson, 404 Ill. App. 3d 145, 150 (2010) (citing People v.
       Collins, 106 Ill. 2d 237, 261 (1985)).
¶ 30        The mens rea of a crime can rarely be proved with direct evidence. People v. Sanchez, 292
       Ill. App. 3d 763, 771 (1997). Rather, the mens rea is generally inferred from circumstantial
       evidence. People v. Holt, 271 Ill. App. 3d 1016, 1025 (1995). That is equally so for a case of
       criminal sexual abuse. People v. C.H., 237 Ill. App. 3d 462, 472 (1992). Whether a defendant
       acted with the required mental state is a question for the trier of fact. People v. Wehrwein, 209
       Ill. App. 3d 71, 81 (1990). An appellate court should not substitute its judgment for that of the
       trier of fact, unless the judgment at trial was inherently implausible or unreasonable. People v.
       Price, 225 Ill. App. 3d 1032, 1035 (1992).
¶ 31        Here, defendant was charged with knowingly committing an act of sexual conduct. See 720
       ILCS 5/11-1.60(d) (West 2012). Pertinent to this case, sexual conduct is defined as a knowing
       touching by the defendant of the victim’s sex organ through the clothing of the victim for the
       purpose of the defendant’s sexual gratification or arousal. See 720 ILCS 5/11-0.1 (West 2012).
       Sexual gratification or arousal, however, is not defined by statute. In re Davontay A., 2013 IL
       App (2d) 120347, ¶ 17. The intent to sexually gratify or arouse has no restrictive meaning and
       can be proved by circumstantial evidence, including an inference from the defendant’s
       conduct. People v. Burton, 399 Ill. App. 3d 809, 813 (2010). Although a defendant’s intent
       generally can be inferred solely from the nature of the act (id.), such an inference is not
       reasonable when the accused is a child (In re Davontay A., 2013 IL App (2d) 120347, ¶ 19).
       The issue of a child’s intent to sexually gratify or arouse must be determined on a case-by-case
       basis, and the fact finder must consider all of the evidence, including the child’s age and
       maturity, before deciding whether such intent can be inferred. Id. The element of knowledge
       likewise can be inferred from circumstantial evidence. People v. Burt, 142 Ill. App. 3d 833,
       836 (1986).
¶ 32        In this case, it is undisputed that defendant touched the victim’s penis through the victim’s
       clothing. The disputed issues are whether he knowingly did so for the purpose of his sexual
       gratification or arousal and knowingly made contact of an insulting or provoking nature.
¶ 33        Because defendant has an IQ of 48 and functions at the approximate level of a
       three-year-old, he is effectively a young child, notwithstanding his chronological age.
       Therefore, the trial court could not base its finding that he knowingly acted for the purpose of
       sexual gratification or arousal solely on the nature of the contact. See In re Davontay A., 2013
       IL App (2d) 120347, ¶ 19. Thus, the State offered additional evidence in attempting to show
       that defendant knowingly touched the victim for a sexual purpose. We will discuss that
       evidence in turn.

                                                   -6-
¶ 34        First, we consider Kuzia’s report and testimony. Kuzia opined that defendant was a
       potential danger based on his low IQ, the charged incident, and a prior incident at school. That
       opinion is problematic in two respects. First, as discussed, because of defendant’s limited
       mental capacity, the evidence of either incident alone could not establish that it was knowingly
       done for a sexual purpose. Second, although Kuzia, as an expert, could rely on Vogel’s report,
       including the hearsay therein (see Ill. R. Evid. 703 (eff. Jan. 1, 2011); People v. Lovejoy, 235
       Ill. 2d 97, 142-43 (2009)), which referred to the incident at school, Kuzia’s recitation of
       Vogel’s report did not include any details concerning that incident. More importantly, there
       was no indication that in the school incident defendant knowingly touched anyone for the
       purpose of either his or the alleged victim’s sexual gratification or arousal. Other than the
       unsubstantiated reference to the prior incident, Kuzia referred to no evidence aliunde the
       charges and defendant’s diminished mental capacity to support his opinion that defendant is
       sexually dangerous and in need of comprehensive care and consistent monitoring. Thus, to the
       extent that Kuzia’s report and testimony were based on the charged incident and the prior
       incident, it did not support the not not guilty finding.
¶ 35        Because the evidence of the nondescript school incident was insufficient to support
       Kuzia’s opinion, it was also insufficient to support the trial court’s finding that defendant
       knowingly acted for the purpose of sexual gratification or arousal. As discussed, the vague
       reference to an incident involving inappropriate sexual conduct at school, without more, was
       not sufficient to show that defendant knowingly acted for the purpose of sexual gratification or
       arousal in this case.
¶ 36        As for the evidence that defendant had an erection in a park, the State offered no specifics
       as to that incident, such as whether defendant exposed himself, fondled himself, or otherwise
       sought sexual gratification. Like the school incident, the lack of specificity rendered that
       evidence insufficient to show that defendant knowingly touched the victim for the purpose of
       his sexual gratification or arousal.
¶ 37        The next piece of evidence involved defendant having ordered “pornography” via the
       television. We note first that the evidence was equivocal as to whether defendant actually
       ordered the pornography, as opposed to someone else in the home having done so. However,
       even if defendant did, there was no evidence that he ever watched the pornography, that he
       understood what he was ordering, or that he was sexually gratified or aroused by it.
¶ 38        That brings us to the last piece of the State’s evidence, the surveillance video. In relying on
       that, the trial court commented that, when the victim looked back at defendant, the victim
       showed concern and fear. However, any such concern or fear does not prove that defendant
       knowingly acted for a sexual purpose.
¶ 39        Defendant also entered and exited the bathroom six times in a 45-minute period. The trial
       court found that that showed defendant’s effort to seek out a victim. Kuzia’s testimony,
       however, was that defendant was incapable of acting with much forethought or intent and that
       he could not decide what to do next. Additionally, Gonzalez testified that defendant had to be
       told what to do, and Rita Kelly testified that defendant would stand in one place until told what
       to do. Based on Kuzia’s opinion and the testimony of Gonzalez and Rita Kelly, it was not
       reasonable to infer from the number of times that defendant entered and exited the bathroom
       that he was seeking out a victim.
¶ 40        Next, the trial court concluded that the fact that the bathroom was a “secret place” showed
       defendant’s intent. We respectfully disagree. Although a bathroom is generally a place where

                                                    -7-
       private bodily functions are performed, the bathroom in this case was public. Indeed, the video
       showed numerous people, other than defendant and the victim, going in and out of the
       bathroom, including a Walmart employee only moments before the incident. Additionally, the
       act occurred near the sink, as opposed to inside a stall. Therefore, the act did not occur in a
       secret place such that it was reasonable to infer any intent by defendant to commit a crime.
¶ 41       We note that the trial court relied, in part, on Burton. However, that reliance was misplaced
       as Burton is clearly distinguishable. The defendant in Burton was an adult with no
       developmental disabilities. Therefore, this court noted that whether the defendant acted with
       the intent to gratify or arouse himself sexually could be inferred solely from the nature of the
       act. Burton, 399 Ill. App. 3d at 812-13. Additionally, the defendant in Burton pinned the victim
       on a bed, placed his hand inside of her bra, and touched her breast. According to the victim, the
       incident lasted almost 30 seconds. Id. at 811. Here, on the other hand, defendant was
       developmentally disabled and the incident involved a single touching of the victim’s groin.
       Thus, Burton does not support the court’s finding.
¶ 42       Finally, we note that the trial court gave little, if any, weight to the testimony of Rita, Erin,
       and Megan Kelly because it was based on their observations “after the fact.” But on the issue of
       defendant’s intent based on his limited mental capacity, their testimony was highly relevant.
       Defendant’s mental capacity was not fluid. Indeed, Kuzia opined that defendant’s condition
       was long-term and not likely to change. Thus, the court improperly discounted the
       post-incident evidence, which showed that defendant was neither sexually aggressive nor
       dangerous.
¶ 43       We conclude that the State’s evidence was insufficient to prove beyond a reasonable doubt
       that defendant, who had an IQ of 48 and the mental capacity of a three-year-old, knowingly
       acted for the purpose of his sexual gratification or arousal. That leaves the issue of whether
       defendant was properly found not not guilty of battery. As relevant here, a person commits
       battery if he knowingly without legal justification makes physical contact of an insulting or
       provoking nature. 720 ILCS 5/12-3(a)(2) (West 2012). A person acts knowingly if he is
       consciously aware that a particular result is practically certain to be caused by his conduct. 720
       ILCS 5/4-5(b) (West 2012). Again, because defendant had an IQ of 48 and the mental capacity
       of a three-year-old, the nature of the act alone did not prove that he knowingly made contact of
       an insulting or provoking nature. Moreover, there was no other evidence that he did.
¶ 44       Although the standard for reversing a finding of not not guilty is high, we believe that, in
       light of the overwhelming evidence of defendant’s extremely low mental capacity, the
       evidence was not sufficient, even when viewed in the light most favorable to the State, to prove
       beyond a reasonable doubt that defendant knowingly touched the victim for his sexual
       gratification or arousal or that he knowingly made contact of an insulting or provoking nature.
       In our view, in the face of such evidence, no rational trier of fact could find defendant not not
       guilty of either criminal sexual abuse or battery.
¶ 45       For the reasons stated, we reverse the judgment of the circuit court of Kane County.

¶ 46       Reversed.




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