                                       2016 IL App (1st) 131959


                                                                               FIFTH DIVISION
                                                                               April 29, 2016


No. 1-13-1959


                                                                   )   Appeal from the
THE PEOPLE OF THE STATE OF ILLINOIS,                               )   Circuit Court of
                                                                   )   Cook County
                Plaintiff-Appellee,                                )
                                                                   )
v.                                                                 )   No. 10 CR 16871-01
                                                                   )
RICARDO ARZE,                                                      )
                                                                   )   Honorable
                Defendant-Appellant.                               )   Noreen Valeria Love,
                                                                   )   Judge Presiding.


       PRESIDING JUSTICE REYES delivered the judgment of the court, with opinion.
       Justices Gordon and Burke concurred in the judgment and opinion.


                                             OPINION

¶1     Following a jury trial in the circuit court of Cook County, defendant Ricardo Arze was

found guilty of two counts of criminal sexual assault (720 ILCS 5/12-13(a)(1), (2) (West 2004)) 1

and sentenced to 13 years in the Illinois Department of Corrections. On appeal, defendant argues

the trial court erred in: (1) granting the State's motion to reconsider and reinstating the verdict,

after admitting other-crimes evidence; (2) failing to admit subpoenaed medical records or publish

certain medical records to the jury; (3) precluding or limiting the examination of witnesses; and



1
  Sections 12-13(a)(1) and 12-13(a)(2) were renumbered on July 11, 2011. Pub. Act 96-1551, §5
(eff. July 1, 2011) (amending 720 ILCS 5/12-13(a)(1), (2) (West 2010)) (now codified as 720
ILCS 5/11-1.20(a)(1), (2) (West 2012)). The renumbering does not affect the arguments nor the
judgment in the instant case.
1-13-1959


(4) imposing an improper sentence based in part on limiting the cross-examination of a witness.

For the following reasons, we affirm the judgment of the circuit court.

¶2                                      I. BACKGROUND

¶3     On September 11, 2008, defendant was indicted on two counts of criminal sexual assault

(id.) and one count of unlawful restraint (720 ILCS 5/10-3 (West 2004)) for the March 24, 2005,

sexual assault of a woman named M.S., who was a patient of defendant. 2 The State subsequently

elected to proceed to trial on the two counts alleging criminal sexual assault.

¶4                                    A. Pretrial Proceedings

¶5     On December 16, 2008, the State filed a motion to admit evidence of other crimes during

defendant's trial, pursuant to section 115-7.3 of the Code of Criminal Procedure of 1963 (Code)

(725 ILCS 5/115-7.3 (West 2008)). The State asserted defendant's sexual conduct or sexual

assaults of four women other than the complainant should be considered relevant on the issues of

defendant's identity, intent, motive, common scheme or design, lack of consent, modus operandi,

and propensity. Specifically, the State sought to admit testimony from N.R., B.S., Y.G., and

R.V., 3 four of defendant's former female patients who claimed defendant engaged in

nonconsensual sexual conduct with them in his examination room during the time period from

2005 through 2007. The State noted defendant had been the family physician of the

complainant, M.S., from 1999 through 2002, and was accused of forcibly having sexual

intercourse with M.S. in 2005, while administering treatment for "the flu." 4 The State further

argued defendant's alleged misconduct with his other patients was similar to and proximate in

time to the charged offense and would also rebut a potential defense of consent.

2
  We will use the victim's initials to protect her privacy.
3
  We will use the initials of the four women to protect their privacy.
4
  We note that the State's motion to admit evidence of other crimes indicates M.S. was treated for
"the flu," while M.S.'s testimony indicates that she was treated for pneumonia.
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1-13-1959


¶6     Defendant apparently filed a response to the motion, 5 arguing that: (1) the other-crimes

evidence must fall within a common law exception before it may be introduced as evidence of

propensity to commit sexual assault; (2) none of the common law exceptions for admitting other-

crimes evidence applied to this case; (3) the alleged other misconduct was not similar to or

proximate in time to the charged offense; and (4) admission of the other cases of alleged

misconduct would result in mini-trials which would become the focal point of the proceedings

against defendant.

¶7     On August 16, 2010, the trial court entered an order granting the State's motion.

Although the order is not included in the record on appeal, the parties agree the record otherwise

indicates the trial court ruled the evidence was admissible on the issues of intent, lack of

innocent frame of mind, and propensity. The court denied the admission of the evidence for the

purpose of establishing modus operandi.

¶8     On September 24, 2010, defendant filed a motion seeking discovery in part of the names

of all treating physicians of M.S., N.R., B.S., Y.G., and R.V., including psychologists and

psychiatrists. Defendant also sought records concerning medical, psychological, and

neuropsychological examinations of these witnesses. On December 21, 2010, the State filed a

response objecting to these discovery requests, arguing the mental health records were privileged

by statute (see 740 ILCS 110/10 (West 2010)). On June 30, 2011, defendant filed a reply in

support of the motion for discovery, arguing the records at issue were discoverable even if they

were privileged, and requesting the trial court to order production of the records for an in camera

inspection.

¶9     On July 12, 2011, the trial court granted defendant's motion for disclosure of the medical

5
  A copy of defendant's response included in the record on appeal bears no time-stamp indicating
the motion was filed, but the State's brief represents that the motion was filed.
                                                  3
1-13-1959


records, subject to an in camera inspection. On September 6, 2011, the State filed a

supplemental answer to discovery, tendering records the State received relating to N.R., B.S.,

Y.G., and R.V., to the trial court for in camera review. The State also answered it was awaiting

the receipt of records relating to these individuals from other certain medical providers. On

December 21, 2011, the trial court issued a series of orders to additional medical providers

directing them to provide records relating to M.S. for in camera review. On May 1, 2012, the

trial court entered an order directing that "the medical records previously reviewed in camera

shall be included in the record in [sic] as sealed documents instanter."

¶ 10                                          B. Trial

¶ 11                                   1. M.S.'s Testimony

¶ 12   At trial, M.S., the complainant, testified through an interpreter that she was currently 55

years old. Defendant had been her mother's physician before her mother's death in 2002. M.S.

was first examined by defendant at the end of 2001, in part because defendant spoke Spanish. At

that time, she informed defendant she felt depressed, felt pressure from her two jobs, and was not

feeling well. Defendant prescribed her medicine for depression, which made her feel "[n]ot too

much" better. Thereafter, M.S. met with defendant when she took her mother to him for

treatment.

¶ 13   Thereafter, M.S. was examined by defendant on March 15, 2005, when she had

contracted pneumonia. Defendant diagnosed M.S., prescribed medication, provided a note for

M.S. to give to her employer, and directed her to return for a follow-up examination. When M.S.

returned to defendant's office on March 21, 2005, she was feeling better. Defendant requested

that M.S. return for another follow-up appointment.

¶ 14   On March 24, 2005, M.S. returned to defendant's office. During the appointment,



                                                 4
1-13-1959


defendant directed her to sit on the examination table, and to remove her blouse and sweater.

M.S. remained in her brassiere, thinking defendant was going to examine her lungs. Defendant

then grabbed his penis and touched "everywhere" on her body. M.S. wanted to scream, but

defendant "would tell [her] not to do anything, to be quiet" and reminded her there were many

people outside.

¶ 15   Defendant moved M.S.'s body toward the front of the examination table. M.S. testified

her jogging pants were pulled down, but she did not recall whether defendant pulled them down.

When defendant was next to M.S., she could observe defendant's penis was "big [and] fat."

According to M.S., defendant pulled her legs apart while informing her she "was going to like

it." Defendant inserted his penis into her vagina while standing in front of her. M.S. did not

recall whether defendant ejaculated, but he gave her something with which to clean herself.

Defendant then provided M.S. a note to give to her employer.

¶ 16   M.S. "didn't feel right" and "just wanted to leave" defendant's office. She paid her bill,

cried for an hour in her automobile, and returned home. M.S. did not notify anyone at

defendant's office because there were many people there including defendant's wife, and she

thought no one would believe her. She did not inform her husband or son because she believed

they would have murdered defendant and would have been incarcerated. She did not inform her

sister because she and her brother-in-law were defendant's patients and believed in defendant.

She never returned to defendant's office.

¶ 17   M.S. received a telephone call from her sister in September 2007, and learned that

someone had filed a complaint against defendant. When M.S. returned home from work that

day, she observed defendant on a news broadcast. M.S. then informed her sister and her husband

of the 2005 incident. M.S. and her husband proceeded to the police station in Berwyn, Illinois.



                                                 5
1-13-1959


M.S. informed the police regarding the 2005 incident and thereafter identified defendant in a

police lineup.

¶ 18     On cross-examination, M.S. acknowledged it was not uncommon for defendant's

employees to enter the examination room during an appointment. M.S. further testified during

cross-examination that defendant pulled down her pants. She acknowledged her sister visited

defendant 10 times after the incident, but she did not inform her sister of the incident. M.S.

further testified this was the "fifth different story" she had provided about the alleged assault.

The trial judge sustained the State's objection to the cross-examination of M.S. on whether she

had lied to the State about visiting other doctors in the United States after the incident.

¶ 19                                    2. N.R.'s Testimony

¶ 20     N.R. testified through an interpreter that she was 46 years old at the time of the trial. She

testified that in 2006 and 2007, she lived in Cicero, Illinois, with her sons and her then-husband.

N.R. further testified she stopped seeing her previous doctor because he tried to kiss her during

her last appointment. At this juncture in N.R.'s testimony, the jury was instructed by the trial

judge that N.R.'s testimony was being presented on the issues of defendant's intent, lack of

innocent frame of mind, and propensity. During her initial visit on September 5, 2006, N.R.

informed defendant of her depression and her problems with her then-husband including an

unspecified traumatic sexual event. Defendant prescribed medication to assist N.R. to relax and

sleep.

¶ 21     Approximately one month later, N.R. returned to defendant's office because she needed

more medication. During the examination, defendant asked N.R. about her sex life. N.R.

communicated to defendant she did not want to discuss her sex life, but defendant responded that

talking about sex was part of the treatment for her depression. Defendant, who was behind N.R.,



                                                   6
1-13-1959


put all 10 of his fingers on her neck and moved them up and down, and asked her what she was

feeling. N.R. communicated to defendant not to touch her because she was not feeling anything.

Defendant blew into her ear, which made N.R. "feel bad." She asked defendant to stop blowing

in her ear, but he insisted she had to feel something. Defendant, however, ultimately "gave [her]

the medication" for her depression.

¶ 22   N.R. returned to defendant's office approximately two months later because the

medication she received was helping her symptoms. During the examination, defendant again

inquired about N.R.'s sex life. N.R. testified that at some point during these conversations,

defendant informed her she could buy "toys" to satisfy herself.

¶ 23   N.R. further testified that her final visit to defendant's office occurred in 2007, and was a

scheduled appointment for a Pap smear. When N.R. arrived, she was informed that a

mammogram would be performed. N.R. was initially lying prone and clothed on the

examination table. Defendant opened N.R.'s pants and commenced feeling her lower abdomen.

Defendant then reminded her of the mammogram, unhooked her brassiere, and began touching

and rubbing her breasts with both hands in a circular motion. After approximately two minutes,

N.R. inquired whether defendant was going to perform the mammogram, to which defendant

responded that he would refer her to a hospital for the mammogram. N.R. requested that

defendant stop touching her, but defendant did not stop. Defendant was breathing heavily and

N.R. observed an erection through his pants. There was a knock at the door. N.R. heard a

female voice. Defendant opened the door slightly, looking sideways and keeping his lower body

behind the door. After defendant spoke to the individual, he closed the door and instructed N.R.

"to go with the girl." N.R. testified that defendant also inquired about her sex life during this

incident.



                                                  7
1-13-1959


¶ 24     After the final incident, N.R. did not report what occurred to the police, but did speak to

one of defendant's employees and one of her sons about the incident. N.R. testified she was

examined by defendant on one other occasion and he "act[ed] in a professional manner" toward

her. N.R. traveled to Texas and while there received a telephone call from her son. N.R.

returned to Illinois approximately three days after the telephone call and went to a police station

in Berwyn and spoke with a police officer. N.R. was accompanied to the police station by a

coworker who acted as a translator. Prior to her testimony, N.R. did not know M.S. or B.S.

¶ 25     On cross-examination, N.R. recalled that during her second examination, defendant put

his hands down to her buttocks. N.R. acknowledged that, unlike her experience with her prior

physician, she continued to seek treatment from defendant despite defendant's behavior. N.R.

could not recall whether she informed the State regarding the final incident which involved an

appointment for a Pap smear. When cross-examined about what she informed the State

regarding these events, N.R. testified she did not speak much English, but understood the

language fairly well. N.R. did not recall whether she related to the Berwyn police officer that

she had observed defendant with an erection through his pants. N.R. had not informed either the

police officer or the prosecutors that defendant reached down to her vaginal area during her final

visit.

¶ 26                                    3. B.S.'s Testimony

¶ 27     The trial judge instructed the jury that B.S.'s testimony was being presented on the issues

of defendant's intent, lack of innocent frame of mind, and propensity. B.S., who was 53 years

old at the time of the trial, testified that in 2004, she was having trouble in her marriage and her

cousin recommended she consult with defendant. B.S. first visited defendant on October 12,

2004, and she informed defendant her husband had been unfaithful. Defendant diagnosed B.S.



                                                  8
1-13-1959


with depression and prescribed medication. Defendant proceeded to see defendant on multiple

occasions in 2005, 2006, and 2007, not only for treatment of her depression, but also for breast

surgery.

¶ 28   B.S. further testified defendant made her uncomfortable in the examination room. On the

first such occasion, defendant lowered her gown, hugged her, whispered in her ear and licked her

neck. Defendant informed her he was attempting to make her feel something, or desire sex. B.S.

pushed defendant away from her. According to B.S., similar incidents occurred on five or six

occasions during her appointments with defendant. B.S. further testified that on one occasion,

defendant bit her breasts, which caused her to scream.

¶ 29   During her final appointment, defendant informed B.S. he was "trying to find her weak

side" and put his finger in her vagina. B.S. pushed defendant away and he left the examination

room "bothered." B.S. did not return to defendant's office thereafter, realizing his behavior was

not therapy. After observing defendant on television, B.S. telephoned her cousin who originally

referred her to defendant. B.S. then proceeded to a police station and reported what had occurred

during her appointments with defendant. B.S. did not know M.S. or N.R.

¶ 30   On cross-examination, B.S. acknowledged knowing that defendant's wife worked at his

office, but did not recall telling the State that the wife was present during one of the sexual

assaults. B.S. did not recall defendant recommending a mammogram or a biopsy, but did

remember traveling to Mexico for a cosmetic procedure. She also did not recall having a Pap

smear during her final appointment with defendant.

¶ 31   B.S. further acknowledged she met with an attorney to discuss filing a civil lawsuit

against defendant, but she testified she did not file the suit. During a sidebar, the trial judge

ruled that B.S. could be cross-examined on whether she was aware of a lawsuit filed two years



                                                  9
1-13-1959


after the final incident, but that defense counsel could not impeach B.S. with a document she had

not signed and of which she might not be aware. Following the sidebar, B.S. testified she did not

remember an attorney named Richard Nielsen nor recall authorizing him to correspond with

defendant. B.S. was unaware that a lawsuit against defendant was filed on her behalf and

subsequently dismissed.

¶ 32                           4. Detective Roger Montoro's Testimony

¶ 33   Roger Montoro (Detective Montoro) testified that he was a Berwyn police detective when

he met with M.S. on September 26, 2007. M.S. appeared upset when she arrived at the police

station. Although Detective Montoro spoke little Spanish and M.S. spoke in broken English, the

two conversed about her report that defendant assaulted her. Detective Montoro reported the

assault which occurred on March 21, 2005, but he did not cross-reference M.S.'s medical

records. After several minutes of conversation, M.S. indicated she would prefer to speak to a

female officer. Detective Montoro complied with the request and asked officer Leilani Cappetta

(Officer Cappetta) to speak with M.S. On September 26, 2007, Detective Montoro brought

defendant into police custody. 6

¶ 34                           5. Dr. Jeffrey Tiemstra's Testimony

¶ 35   Dr. Jeffrey Tiemstra (Dr. Tiemstra), a licensed physician, testified for the State as an

expert in the field of family medicine. Dr. Tiemstra testified he reviewed the medical records

and the police report related to M.S. When defendant treated M.S. for pneumonia, tests for

human immunodeficiency virus (HIV) and syphilis were ordered. Dr. Tiemstra could see no

basis in the file for a HIV test. Dr. Tiemstra further testified that in 2005, Illinois law required a

patient to sign an informed consent form before a HIV test could be administered, which he did

6
 The trial transcript indicates Detective Montoro may have also spoken with N.R. and B.S. on
different occasions, but he only testified about his conversation with M.S. at trial.
                                                  10
1-13-1959


not find in M.S.'s chart. The results of the HIV and syphilis tests, conducted on March 22, 2005,

were negative. Dr. Tiemstra opined the medical records did not suggest a need for a

gynecological or breast examination. Dr. Tiemstra also opined sexual contact between a

physician and a patient is considered "completely unethical" and not consistent with reasonable

medical standards.

¶ 36   On cross-examination, Dr. Tiemstra acknowledged he did not interview M.S., did not

determine whether she was credible, and had no personal knowledge of whether defendant

assaulted her. Dr. Tiemstra further acknowledged the medical records did not indicate that

defendant performed a pelvic or breast exam in year 2005. Dr. Tiemstra also acknowledged that

patients with advanced acquired immunodeficiency syndrome (AIDS) are at increased risk of

pneumonia, but he testified that those individuals would usually have been infected with HIV for

many years and have many other symptoms, such as a low white blood cell count. Dr. Tiemstra

opined there was a strong indication that M.S. did not have AIDS because the charts he reviewed

revealed M.S. had a normal and complete blood count. M.S.'s other symptoms also did not raise

a strong possibility of AIDS.

¶ 37                         6. Stipulation of Debra Arze's Testimony

¶ 38   In the presence of the jury, the parties stipulated that Debra Arze (Debra), defendant's

wife, would testify that she was the manager of defendant's offices from 1994 through September

2007. Debra would further testify that defendant was the only physician to treat M.S. during the

time periods relevant to this case.

¶ 39                              7. Motion for a Directed Verdict

¶ 40   The State rested its case and outside the presence of the jury, defense counsel moved for

a directed verdict. The trial judge denied the motion. Defense counsel further moved for a



                                                11
1-13-1959


mistrial based on the other-crimes evidence. The trial court denied the motion.

¶ 41                             8. Officer Cappetta's Testimony

¶ 42   Officer Cappetta testified for the defense that in September 2007, she was a Berwyn

police sergeant. On September 29, 2007, Officer Cappetta worked with Detective Montoro and

spoke with B.S. about her report of being sexually assaulted by her physician. 7 B.S. indicated

defendant engaged in inappropriate conduct on more than one occasion, but B.S. continued to

visit defendant to receive her medication. B.S. visited defendant on three more occasions after

defendant inserted his finger in her vagina.

¶ 43                              9. Other Patients' Testimonies

¶ 44   Yolanda Pantoja (Yolanda), Alfredo Pantoja (Alfredo), and Maria Guerra (Maria)

testified they were patients of defendant's during the time period from 1994 through 2005.

Yolanda testified that on March 24, 2005, she and Alfredo were present in the office and she did

not hear any raised voices or defendant telling anyone to be quiet. Yolanda did not overhear any

patient conversations on that date. Alfredo was unsure whether he visited defendant's office in

March 2005. He did recall, however, that he generally could not overhear what was occurring in

the examination rooms, particularly because defendant's office was very busy. Alfredo further

testified that other people did not enter the examination room when he was examined by

defendant. Maria testified she could hear what occurred in other examination rooms and that

defendant's staff would occasionally enter the room during examinations, including when a Pap

smear was being performed.

¶ 45                              10. Jaqueline Poggi's Testimony

¶ 46   Jaqueline Poggi (Jaqueline), a licensed phlebotomist and defendant's half-sister, testified

7
  Although the State's brief represents that Cappetta interviewed M.S. on September 29, 2007,
the record indicates Cappetta interviewed B.S. – not M.S. – on that date.
                                                12
1-13-1959


she assisted defendant by taking blood from patients. Jaqueline testified she was working at

defendant's office on March 21, 2005. Jaqueline's recollection was refreshed by office records.

She recalled taking blood samples from M.S. for HIV and syphilis tests on that date. Jaqueline

further testified her two daughters had also worked at defendant's office, as had defendant's wife,

who worked at the office "all the time."

¶ 47                         11. Dr. Christina Arellano's Testimony

¶ 48   Dr. Christina Arellano (Dr. Arellano), a licensed physician, testified she was a patient of

defendant in 1998 and worked in his office in various capacities from 1999 through 2007.

According to Dr. Arellano, defendant had an extremely high-volume practice, treating anywhere

from 40 to 60 patients on a daily basis. Defendant was able to see such a high volume of patients

in part by having Dr. Arellano interview patients before defendant examined them. Dr. Arellano

could hear what transpired in the examination rooms, the receptionist area, and the hallway when

she was in the other examination rooms because the office space was compact and had thin

walls. Staff could potentially walk into the examination rooms during examinations, as the doors

were not locked. Dr. Arellano never heard any complaints from patients that defendant had

behaved inappropriately. Dr. Arellano further testified that while she worked in defendant's

office, defendant always behaved in a manner that was extremely professional.

¶ 49   On cross-examination, Dr. Arellano acknowledged she could hear conversations in the

other examination rooms, but "it was more of a mumbling at times." Defendant's patients

consisted of more women than men. Dr. Arellano further testified defendant treated as many as

15 patients on a daily basis for major depressive disorder. Dr. Arellano would always ask such

patients about their sexual histories because sexual dysfunction was pertinent information

pertaining to the patients' depressions. Dr. Arellano also acknowledged that, in order to protect



                                                13
1-13-1959


the privacy of the patients during examinations, defendant's staff would knock on the door of an

examination room and upon receiving permission would enter the room. In addition, flags would

be placed outside examination rooms to indicate when a gynecological exam was underway.

¶ 50                                 12. Debra's Testimony

¶ 51   Debra, defendant's wife since 1984, testified she acted as defendant's office manager in

2005. On March 24, 2005, M.S. signed in as the ninth patient, while the Pantojas signed in as

the tenth and eleventh patients. Debra testified that M.S. would have been assigned to an

examination room with a large antique bed which was so large it would not recline and required

patients to sit. M.S. was provided two notes on March 24, 2005: one was a referral to a vascular

surgeon and the other was for M.S.'s employer. Debra further testified that she may have

occasionally entered an examination room without knocking, but generally knocked and waited

for defendant's response.

¶ 52   On cross-examination, Debra acknowledged that office records for March 24, 2005,

indicated M.S. had a 6:45 a.m. appointment, while the Pantojas were in fact scheduled for 12:25

p.m. that day. Debra also acknowledged the office records did not indicate the examination

room to which M.S. was assigned. Debra further acknowledged the bed in the examination room

she had described could be laid flat, but was generally kept upright due to space considerations.

Debra agreed that 17-year-old Silvana Poggi (Silvana) took M.S.'s medical history on March 24,

2005, but Debra never observed Silvana enter that examination room. Debra agreed there were

no office records indicating Silvana worked at defendant's office on the date in question.

Further, Debra acknowledged she did not enter the examination room occupied by M.S. on

March 24, 2005. In addition, Debra testified M.S.'s consent form for an HIV test was not in

M.S.'s medical records, but was retained in a binder kept by the office. Debra maintained she did



                                                14
1-13-1959


not have access to the binder because the police seized defendant's records.

¶ 53                             13. Jury Instruction Conference

¶ 54   During the trial, a jury instruction conference was held outside the presence of the jury.

Defense counsel raised his ongoing objection to the other-crimes instruction, noting it had

already been read twice to the jury. The trial court ruled the other-crimes instruction would be

given to the jury.

¶ 55                                 14. Silvana's Testimony

¶ 56   When testimony resumed, Silvana testified defendant was her uncle. In 2005, she was a

college student and volunteered in defendant's office, interviewing patients and filing paperwork.

Silvana testified she would be present "all the time" when defendant conducted examinations.

¶ 57   Silvana remembered M.S. because her mother had an interesting medical condition.

Silvana was present for the March 24, 2005, examination and defendant never instructed M.S. to

disrobe nor did he behave inappropriately. No one sexually assaulted M.S. in Silvana's presence.

¶ 58   On cross-examination, Silvana acknowledged defendant paid for part of her college

expenses. Silvana also conceded that in 2007, after learning of the complaint by M.S., she did

not contact the Berwyn police to inform them she had been present and that no sexual assault

occurred on the date in question. Silvana further acknowledged her initials did not appear on

M.S.'s chart for March 21 or 24, 2005, although the chart for the latter date included initials

belonging to her younger sister Marianna, Anna Larious, and Debra. Silvana agreed she did not

see M.S. on March 14 or 17, 2005.

¶ 59                               15. Defendant's Testimony

¶ 60   Defendant testified on his own behalf regarding his treatment of M.S., B.S., and N.R.

Defendant denied engaging in the sexual behavior to which his patients testified.



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1-13-1959


¶ 61      On cross-examination, defendant acknowledged he questioned N.R. about her libido,

explaining that a lack of libido may be a physical symptom of depression. Defendant further

testified he might treat libido as a symptom of depression by recommending exercise, or

prescribing medication, as he did in N.R.'s case. Defendant acknowledged he gave N.R. a Pap

smear, but he testified he always had an assistant, and occasionally a student, resident, or trainee

to assist him with the procedure. Defendant later conceded he was often alone in the

examination room with patients for a few minutes when the assistant would have to retrieve

equipment or forms. Further, earlier in his career, there were occasions where he would speak

alone with patients about sensitive social, economic, or family questions. Defendant further

testified he hugged or clasped the hands of a patient many times when the patient was distressed.

On redirect examination, defendant testified an assistant performed the Pap smear of N.R. on

September 20, 2007.

¶ 62                                     16. Parties' Stipulations

¶ 63      The parties further stipulated that Detective Montoro, if recalled as a witness, would

testify that N.R. informed him she complained about defendant's conduct three times to a female

doctor at defendant's office. If Lizette Rivera (Rivera) 8 was called as a witness, she would testify

that she interviewed M.S. on September 30, 2007, and that M.S. did not recall whether the

incident occurred on her first visit to defendant's office or on a follow-up visit. Rivera would

further testify that M.S. had stated defendant requested her to disrobe but M.S. did not indicate

that defendant pulled down her pants or underwear. The parties further stipulated that if called

as a witness, Annette Milleville would testify that on September 9, 2008, she was an assistant

State's Attorney and was informed by B.S. in a telephone interview that Debra was outside the



8
    Rivera is not identified by title in the record.
                                                       16
1-13-1959


examination room door during one of her appointments.

¶ 64   Outside the presence of the jury, defense counsel renewed the motion for a directed

verdict, which the trial judge again denied.

¶ 65                                       17. The Verdict

¶ 66   During an exhibits conference, the trial judge ruled the medical records used during trial

would not be provided to the jury because the records were confidential. Following closing

arguments and jury instructions, the jury retired to deliberate. At the conclusion of its

deliberations, the jury found defendant guilty on both counts of criminal sexual assault. The trial

judge entered a judgment on the verdict.

¶ 67                                 C. Posttrial Proceedings

¶ 68   On June 4, 2012, defendant filed a posttrial motion for a new trial or judgment

notwithstanding the verdict. Defendant argued the trial judge erred in admitting the other-crimes

evidence and also erred in denying the defense motion for a mistrial on that basis. Defendant

further argued the trial judge erred in failing to provide the defense with the medical records that

were sealed and made part of the trial record. Defendant also argued the trial judge erred by

limiting cross-examination of M.S. regarding her comments to prosecutors during pretrial

discovery, and of B.S. regarding the lawsuit ostensibly filed on her behalf. On August 1, 2012,

defendant filed an amended supplemental posttrial motion elaborating on the arguments

regarding the medical records and the civil lawsuit, additionally asserting that the medical

records used at trial should have been provided to the jury.

¶ 69   On August 20, 2012, following a hearing on the matter, the trial judge rejected

defendant's argument regarding the refusal to provide the medical records to the jury, observing

that the records contained coding that would have been confusing to the jury. The trial judge



                                                 17
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also ruled the sealed medical records were not relevant to the trial. The trial judge further ruled,

however, that she had erred in admitting the other-crimes evidence, finding the other incidents as

testified to at trial were not sufficiently similar to the incident involving M.S. Accordingly, the

trial judge granted defendant's motion for a new trial.

¶ 70   On September 17, 2012, the State filed a motion for reconsideration of the trial judge's

decision to grant a new trial. Noting that the State had not sought to admit the other-crimes

evidence under the more stringent standards of similarity for proving modus operandi, the State

argued the other-crimes evidence was admissible because in each case, defendant created a

relationship of trust, inquired about their family issues and sex lives, identified vulnerable

women suffering from depression, and isolated them in examination rooms. On October 25,

2012, the trial judge conducted a hearing on the motion to reconsider and took the matter under

advisement to review the testimony and case law.

¶ 71   On November 5, 2012, the trial court granted the State's motion for reconsideration and

denied defendant's motion for a new trial. The trial judge observed that the women at issue were

in the same age range and all had been diagnosed with depression, although the other crimes

occurred during other types of treatments. Each incident occurred when the women were

partially undressed. Two of the women testified to observing defendant's erection during the

incidents. In each case, defendant touched the vaginal area. The women each had said "no" or

otherwise indicated the behavior was inappropriate. The incidents also occurred when defendant

was in close proximity to the women on an examination table. The trial judge thus re-entered a

judgment on the verdict on both counts.

¶ 72   On December 3, 2012, defendant filed a motion for reconsideration of the trial judge's

denial of his motion for a new trial. On February 7, 2013, following a hearing on the matter, the



                                                 18
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trial judge denied defendant's motion for reconsideration.

¶ 73                                     D. Sentencing

¶ 74   On April 15, 2013, the trial court conducted a sentencing hearing. In aggravation of the

offense, the State called L.H., a woman who visited defendant in 1992 for her first Pap smear at

age 20. L.H. testified defendant performed the Pap smear using gloves and a speculum, with an

assistant present. She visited defendant again a few weeks later, after being informed of an

irregular test result. During the follow-up examination, L.H. and defendant were alone. While

L.H. was lying flat on the examination table wearing a hospital gown, defendant stood between

her legs, moving his fingers in and out of her vagina, without using gloves or a speculum.

Defendant inquired how she was feeling as he moved his fingers from side to side in her vagina,

and ceased when she replied it did not hurt.

¶ 75   Defendant then said he was going to check her breasts and began pressing and touching

them. L.H. began to feel "this is not right." After defendant stopped touching L.H.'s breasts, he

asked her to move to the bottom of the examination table and bend over, because he needed her

uterus to fall to the front. Defendant then placed his fingers inside her vagina again. When

defendant stopped and communicated to her she could clothe herself, L.H. asked him the purpose

of the examination, because it seemed there "was just too much going on." Defendant informed

her he was checking for cancer cells. L.H. felt uncomfortable for the remainder of the day.

¶ 76   L.H. informed her date that evening what had occurred, and he suggested she should

report the incident to someone. The following day, she watched a television talk show about

patients who had been assaulted by their physicians. L.H. became disgusted and had a talk with

her mother, who worked for a police department. Thereafter, L.H. and her mother went to the

police station, where L.H. filed a complaint. L.H. was contacted by an assistant State's Attorney



                                                19
1-13-1959


in August 1992, when she was informed no charges would be filed because it would be L.H.'s

word against defendant's word. L.H. has since had pelvic examinations from other doctors, none

of which were similar to the follow-up examination by defendant. On September 28, 2007, L.H.

went to the Berwyn police department after her mother learned the police were asking women

who were victims of defendant to step forward. L.H. and her mother brought the 1992 police

report to the police station.

¶ 77    On cross-examination, L.H. acknowledged her first visit to defendant's office was in June

1991 and testified she waited for her yearly checkup to have a Pap smear performed. L.H. also

acknowledged her medical records indicated defendant treated her for human papillomavirus and

genital warts, but she denied she ever had a sexually transmitted disease. L.H. further

acknowledged her original police report indicated the follow-up examination occurred on June

30, 1992, but she did not know why that date appeared in the report, noting the incident occurred

over 20 years prior to her testimony.

¶ 78    The State also introduced a victim impact statement in aggravation of the offense. The

statement indicated M.S.'s husband has become angry and hostile, blaming her for the assault.

M.S.'s sons cannot comprehend how the assault occurred. Her daughter feels a certain distrust of

medical professionals.

¶ 79    In mitigation of the offense, defense counsel introduced numerous letters of support from

defendant's patients. Defense counsel also submitted a sentencing memorandum highlighting

defendant's accomplishments. Defendant stated in allocution that his purpose in life was to help

the poor, sick, and disadvantaged.

¶ 80    The trial judge indicated defendant was considered a pillar of the community by his

colleagues and his patients. The trial judge also observed defendant had saved lives. After



                                                20
1-13-1959


considering several mitigating factors, however, the trial judge found none of them applicable to

this case. The trial judge also considered a number of factors in aggravation of the offense,

observing defendant had a history of criminal activity and abused his position of authority and

trust. Accordingly, the trial judge sentenced defendant to serve 13 years in the Illinois

Department of Corrections.

¶ 81       Defendant filed a motion to reconsider his sentence. Although the motion is not included

in the record on appeal, exhibits apparently attached to the motion and the May 23, 2013,

transcript of the hearing on the motion are included in the record under seal. The transcript

indicates defendant sought the opportunity to depose L.H. or, in the alternative, subpoena her

medical records. The State responded the defense had an adequate opportunity to confront L.H.,

who had been disclosed as a witness for months. The State also argued that if the defense had

wanted to argue L.H.'s follow-up examination was conducted in accordance with reasonable

medical standards, the defense could have offered testimony and evidence on that question

during the sentencing hearing. The trial judge denied the motion to reconsider. On June 17,

2013, defendant filed a notice of appeal to this court.

¶ 82                                         II. ANALYSIS

¶ 83       On appeal, defendant argues the trial court erred in: (1) granting the State's motion to

reconsider and reinstating the verdict, based on the admissibility of other-crimes evidence;

(2) failing to admit subpoenaed medical records or publish certain medical records to the jury;

(3) precluding or limiting the examination of witnesses; and (4) imposing an excessive sentence

based in part on limiting the cross-examination of a witness. We address defendant's arguments

in turn.




                                                    21
1-13-1959


¶ 84                                  A. Other-Crimes Evidence

¶ 85   Defendant initially contends the trial judge erred in granting the State's motion to

reconsider her decision to grant a new trial based on the admission of the other-crimes evidence.

"The purpose of a motion to reconsider is to bring to the trial court's attention changes in the law,

errors in the court's previous application of existing law, and newly discovered evidence not

available at the time of the hearing." People v. Bryant, 369 Ill. App. 3d 54, 60 (2006). "Public

policy favors correcting errors at the trial level, and a timely motion to reconsider is an

appropriate method to direct the trial court's attention to a claim of error." Id. at 60-61. Indeed,

" '[a] court in a criminal case has inherent power to reconsider and correct its own rulings, even

in the absence of a statute or rule granting it such authority.' " Id. at 61 (quoting People v. Mink,

141 Ill. 2d 163, 171 (1990)). The trial court's power to reconsider extends to both interlocutory

and final judgments. Id. (citing Mink, 141 Ill. 2d at 171). The trial court's order granting a new

trial is interlocutory and the trial judge has the authority to reconsider it. Id. "When reviewing a

motion to reconsider that was based only on the trial court's application (or purported

misapplication) of existing law, as opposed to [one] based on new facts or legal theories not

presented in the prior proceedings, our standard of review is de novo." (Internal quotation marks

omitted.) Bank of America., N.A. v. Ebro Foods, Inc., 409 Ill. App. 3d 704, 709 (2011).

¶ 86   We note, however, that the trial court granted the motion to reconsider based on its ruling

on the admissibility of the other-crimes evidence. We review the trial court's admission of other-

crimes evidence under an abuse of discretion standard and will not reverse the trial court's

decision unless the decision is " 'arbitrary, fanciful or unreasonable' or 'where no reasonable man

would take the view adopted by the trial court.' " (Internal quotation marks omitted.) People v.

Braddy, 2015 IL App (5th) 130354, ¶ 27 (quoting People v. Donoho, 204 Ill. 2d 159, 182



                                                 22
1-13-1959


(2003)); People v. Ward, 2011 IL 108690, ¶ 21. Further, a posttrial motion for a new trial is a

matter for the trial court's discretion, so that we will not disturb the denial of such a motion

absent a showing that the trial court abused its discretion. People v. Hall, 194 Ill. 2d 305, 343

(2000). We thus review this issue under an abuse of discretion standard.

¶ 87   In this case, the trial judge's rulings address the admission of other-crimes evidence.

"Traditionally, evidence relating to a defendant's propensity to commit crimes has been excluded

from criminal trials because it tends to be overly persuasive to a jury, who may 'convict the

defendant only because it feels he or she is a bad person deserving punishment.' " Ward, 2011 IL

108690, ¶ 24 (quoting People v. Lindgren, 79 Ill. 2d 129, 137 (1980)). "Other-crimes evidence

is admissible * * * to prove intent, modus operandi, identity, motive, absence of mistake, and

any material fact other than propensity that is relevant to the case * * * ." Donoho, 204 Ill. 2d

at 170. "In Illinois, however, our legislature has chosen to provide a limited exception to this

general rule of inadmissibility for other-crimes evidence intended to show the defendant's

propensity to commit crimes." Ward, 2011 IL 108690, ¶ 25. "If a defendant is tried on one of

the enumerated sex offenses, section 115-7.3(b) of the Code [citation] allows the State to

introduce evidence that the defendant also committed another of the specified sex offenses." Id.

Our supreme court has upheld the constitutionality of section 115-7.3. Donoho, 204 Ill. 2d at

182.

¶ 88   "Even if other-crimes evidence falls under one of these exceptions, the court still can

exclude it if the prejudicial effect of the evidence substantially outweighs its probative value."

Id. at 170. In the context of weighing whether to admit other-crimes evidence regarding sex

offenses pursuant to the Code:

       "[T]he court may consider:



                                                  23
1-13-1959


                (1) the proximity in time to the charged or predicate offense;

                (2) the degree of factual similarity to the charged or predicate offense; or

                (3) other relevant facts and circumstances." 725 ILCS 5/115-7.3(c) (West

       2008).

In this case, the trial judge granted the State's pretrial motion to admit other-crimes evidence on

the issues of intent, lack of innocent frame of mind, and propensity. In considering defendant's

posttrial motion and the State's motion to reconsider, the trial judge focused on the issue of

propensity. Accordingly, we will address the admission of the evidence on the question of

propensity, as it is determinative of the issue on appeal.

¶ 89                                        1. Proximity

¶ 90   Defendant asserts "proximity in time between the charged offense and the other crimes

was clearly lacking" in this case. Our supreme court has "decline[d] to adopt a bright-line rule

about when prior convictions are per se too old to be admitted under section 115-7.3. Instead, it

is a factor to consider when evaluating its probative value." Donoho, 204 Ill. 2d at 183-84. In

Donoho, our supreme court observed where the evidence was sufficiently credible and probative,

that Illinois appellate courts and federal courts have affirmed the admission of other-crimes

evidence that occurred more than 20 years prior to the charged offense. Id. at 184. The Donoho

court considered other crimes that occurred 12 to 15 years earlier and held, "while the passage of

12 to 15 years since the prior offense may lessen its probative value, standing alone it is

insufficient to compel a finding that the trial court abused its discretion by admitting evidence

about it." Id. Similarly, in People v. Taylor, 383 Ill. App. 3d 591, 595 (2008), this court

concluded that a six-year gap between the other-crimes evidence and the charged offense was not

significant. As noted by our supreme court in Donoho, the admissibility of other-crimes



                                                 24
1-13-1959


evidence should not be controlled solely by the number of years elapsed between the prior

offense and the charged crime, but should instead be evaluated on a case-by-case basis. Donoho,

204 Ill. 2d at 183.

¶ 91    In this case, M.S. was assaulted on March 24, 2005. B.S. testified regarding incidents

occurring between 2005 and 2007. N.R. testified regarding incidents occurring between 2006

and 2007. These other crimes are substantially more proximate in time to the charged offense

than those at issue in Donoho. See id. at 184. Accordingly, the other crimes would have greater

probative value than those in Donoho, and this factor would not compel a finding that the trial

court abused its discretion in this case. Id.

¶ 92                                     2. Factual Similarity

¶ 93    Defendant also asserts the facts and circumstances of the other-crimes evidence differed

significantly from the conduct alleged in the charged offense. "[T]o be admissible, other-crimes

evidence must have 'some threshold similarity to the crime charged.' " Id. (quoting People v.

Bartall, 98 Ill. 2d 294, 310 (1983)). "As factual similarities increase, so does the relevance, or

probative value, of the other-crimes evidence." Id. "Where such evidence is not being offered

under the modus operandi exception, 'mere general areas of similarity will suffice' to support

admissibility." Id. (quoting People v. Illgen, 145 Ill. 2d 353, 373 (1991)). No two crimes are

identical and so the existence of some differences does not necessarily defeat admissibility.

People v. Smith, 2015 IL App (4th) 130205, ¶ 24.

¶ 94    In this case, defendant points out that M.S. alleged forced sexual intercourse, while N.R.

and B.S. alleged lesser forms of sexual misconduct. Defendant also notes M.S. alleged a single

instance, while N.R. and B.S. alleged ongoing instances of misconduct. Defendant further

indicates M.S. contends she was assaulted during treatment for pneumonia, while N.R. and B.S.



                                                 25
1-13-1959


were primarily treated for depression.

¶ 95   We find this court's decision in People v. Cerda, 2014 IL App (1st) 120484, instructive

on this point. In Cerda, the defendant was charged with criminal sexual assault against his then-

teenage stepdaughter, J.M. Id. ¶ 5. The trial judge ruled the State could submit evidence of the

defendant's prior assault against J.M. and a subsequent assault of Y.C., another stepdaughter. Id.

¶¶ 13-15. On appeal, the defendant argued the offenses against Y.C. were not sufficiently

similar to the crimes against J.M. to be admitted because: "(1) none of the offenses described by

Y.C. involved intercourse, as they had with J.M.; (2) J.M. did not describe the offenses as

occurring when she was asleep, whereas Y.C. described two of the offenses starting that way;

and (3) one of the events against Y.C. occurred in a vehicle, whereas none of the offenses against

J.M. occurred in a vehicle." Id. ¶ 189. The appellate court found there were some differences,

but the offenses were sufficiently similar to be admitted. Id. ¶ 190. The Cerda court noted the

offenses both involved the defendant's stepdaughters, who were left alone in his care. Id. Both

victims were similar in age. Id. Two of the offenses related by Y.C. occurred in the defendant's

home, as did those related by J.M. Id. There was also evidence that the defendant engaged in

suspicious or improper conduct towards both girls in his vehicle. See id.

¶ 96   In this case, M.S., N.R., and B.S. all had the same relationship to defendant, i.e., the

doctor-patient relationship. The evidence demonstrated that the women were in the same age

range and all had been diagnosed with depression, although the other crimes occurred during

other treatments. Each incident occurred in defendant's examination rooms, when the women

were partially undressed. Two of the women testified to observing defendant's erection during

the incidents. In each case, defendant touched the vaginal area. The women each had said "no"

or otherwise indicated the behavior was inappropriate. The incidents also occurred when



                                                26
1-13-1959


defendant was in close proximity to the women who were on an examination table. The fact that

M.S. alleged forced sexual intercourse, while N.R. and B.S. alleged lesser forms of sexual

misconduct, is insufficient to conclude that the trial judge abused her discretion. See id. In each

situation, defendant took advantage of female patients in his examination rooms with whom he

had a doctor-patient relationship. These similarities are sufficient to support the admissibility of

the other-crimes evidence. Donoho, 204 Ill. 2d at 184. Accordingly, defendant's argument on

this point is not persuasive.

¶ 97                            3. Other Relevant Facts and Circumstances

¶ 98   Defendant argues the admission of the other-crimes evidence resulted in "mini-trials"

within his trial that inflamed the jury and steered them from the focus of the true issue for

determination. "Even when relevant and probative, other-crimes evidence must not become a

'focal point' of the trial." People v. Smith, 406 Ill. App. 3d 747, 755 (2010) (quoting People v.

Boyd, 366 Ill. App. 3d 84, 94 (2006)). "In admitting evidence of other crimes to show

propensity, a trial court 'should not permit a "mini-trial" of the other, uncharged offense[s], but

should allow only that which is necessary to "illuminate the issue for which the other crime was

introduced." [Citation.]' " Id. (quoting People v. Bedoya, 325 Ill. App. 3d 926, 938 (2001)).

"Accordingly, a 'large volume' of evidence of other crimes 'may make probative other-crimes

evidence overly prejudicial,' and courts should limit the amount of other-crimes evidence when

the defendant's propensity can be established by only 'a few instances of uncharged conduct' or

by some other admissible evidence." Id. (quoting People v. Cardamone, 381 Ill. App. 3d 462,

496-97 (2008)).

¶ 99   Defendant compares his case to Cardamone, in which the appellate court held the volume

of the other-crimes evidence that was presented to the trial court was overwhelming and



                                                  27
1-13-1959


undoubtedly more prejudicial than probative. Cardamone, 381 Ill. App. 3d at 497. In

Cardamone, however, the trial court admitted testimony regarding what the appellate court

conservatively estimated to be between 158 and 257 uncharged acts. Id. at 491. The appellate

court noted that, "unlike a case where the trial court might admit other-crimes evidence as it

pertains to 1 or even 2 victims, the court here found admissible numerous acts alleged by 15

victims." Id. at 494. Further, the "admission of so many allegations of uncharged conduct, many

of which were vague as to dates, placed defendant in the impossible position of accounting for

his whereabouts and behavior almost all day, every day, over a three-year period." Id. "Simply

put, Cardamone was an extreme case." People v. Perez, 2012 IL App (2d) 100865, ¶ 49.

¶ 100 In this case, the trial included testimony from only two victims other than M.S. The

number of incidents of sexual misconduct is much smaller than in Cardamone. The incidents

were alleged to have occurred during scheduled medical appointments, which resulted in more

specific allegations than those at issue in Cardamone. This factor, therefore, would not compel a

finding that the trial court abused its discretion in this case. See Smith, 406 Ill. App. 3d at 755.

¶ 101 Further, we note that defendant was not convicted or charged for his misconduct with

respect to N.R. and B.S. Illinois courts have, however, found the admission of other-crimes

evidence to be proper regardless of any conviction or charges relating to the offenses in the

other-crimes evidence. In Braddy, the appellate court found no abuse of discretion in admitting

evidence of an uncharged sexual misconduct, finding the evidence to be credible and probative.

Braddy, 2015 IL App (5th) 130354, ¶ 43. In People v. Nelson, 2013 IL App (1st) 102619, ¶ 45,

this court found no abuse of discretion in admitting evidence of an uncharged sexual offense to

demonstrate propensity.

¶ 102 Finally, our resolution of the foregoing issues renders it unnecessary to reach defendant's



                                                  28
1-13-1959


argument that the trial judge erred in admitting the other-crimes evidence on the issues of intent

and lack of innocent frame of mind. Evidence admissible for one purpose is not affected by

inadmissibility for another. People v. Johnson, 2014 IL App (2d) 121004, ¶ 51 (citing People v.

Carter, 38 Ill. 2d 496, 504 (1967)); People v. Boyd, 366 Ill. App. 3d 84, 91-95 (2006) (finding

the trial court improperly admitted other-crimes evidence for common design, but rejecting the

defendant's argument that the trial court improperly admitted the other-crimes evidence because

evidence was admissible for propensity). Accordingly, the trial court did not abuse its discretion

in admitting the other-crimes evidence in this case. Thus, defendant's argument that the trial

judge erred in granting the State's motion to reconsider and denying defendant's motion for a new

trial is not persuasive.

¶ 103                              B. Discovery of Medical Records

¶ 104 Defendant next contends the trial judge erred by denying his discovery request for all of

the medical records of M.S., N.R., and B.S., including records relating to their mental health.

Defendant argues the medical records were material and relevant to the credibility of these

witnesses and suggests he was denied his constitutional right to confront the witnesses against

him and his right to due process of law. A trial court's decision on whether to limit discovery is

reviewed for an abuse of discretion. People v. K.S., 387 Ill. App. 3d 570, 573 (2008). This

court, however, reviews de novo whether a defendant was denied due process and, if so, whether

that denial was prejudicial. Id.

¶ 105 We find two cases instructive on this issue. First, in People v. Bean, 137 Ill. 2d 65

(1990), the Illinois Supreme Court held that a defendant was not denied his sixth amendment

right of cross-examination or his fourteenth amendment right to a fair trial by the trial court's

refusal to order disclosure of a witness's mental health records. Id. at 99-100 (citing U.S. Const.,



                                                 29
1-13-1959


amends. VI, XIV). The Bean court approved the procedure whereby the trial court conducted an

in camera inspection of the witness' mental health records to determine whether they contained

relevant information that could be used to impeach the witness. Id. The court, observing the

records were privileged under the Mental Health and Developmental Disabilities Confidentiality

Act (Ill. Rev. Stat. 1979, ch. 91 1/2, ¶ 801 et seq.), found that such privilege must give way to a

defendant's sixth and fourteenth amendment rights only to the extent that the trial court

determined the privileged information to be relevant and impeaching. Bean, 137 Ill. 2d at 100.

Further, "just as a trial judge can limit cross-examination to prevent inquiries that are irrelevant,

repetitive, or too time-consuming, that harass the witness, or that threaten to distract the jury

from the actual issues by unduly emphasizing details of the witness' life," the judge may also

limit a defendant's access to statutorily privileged information. Id. at 100-01. When the patient

or a therapist asserts the privilege, a trial judge may review a witness' mental health records in

camera and disclose only those portions that are relevant when that relevance is not outweighed

by other factors. Id. at 101.

¶ 106 Second, in People v. Printy, 232 Ill. App. 3d 735 (1992), the appellate court followed the

decision in Bean and affirmed the trial court's refusal to release mental health records. Id. at

744-46. The defendant in Printy had sought, in a motion for additional discovery, to examine the

mental health records of the victim. Id. at 744. Those records, which apparently had been

reviewed by the State's Attorney's office, were then reviewed in camera by the trial court. Id. At

the hearing following the trial court's in camera review, the court allowed the defendant to

review the victim's intake report to a hospital, but refused to give the defendant access to the

remaining reports because it found the records contained no statements of the victim relating to

the incident in question. Id. The trial court further found nothing in the reports relevant to the



                                                  30
1-13-1959


truth or veracity of the victim, relevant to her memory or perception, or of an impeaching nature.

Id. The appellate court, following Bean, concluded the procedure followed by the trial court

struck the proper balance between the defendant's right to access information relevant to the

credibility of a key witness and the need to maintain the confidentiality of the victim's mental

health records. Id. The appellate court also reviewed the victim's mental health records

submitted to the trial court and agreed those records contained no additional material relevant to

the cross-examination or impeachment of the victim. Id. at 744-45. The Printy court further

rejected the defendant's argument that the victim had waived her privilege of confidentiality

because the trial judge had already determined the records were irrelevant and the defendant had

acquiesced in the trial court's procedure. Id. at 745.

¶ 107 In this case, the State objected to defendant's discovery request. Defendant, in replying to

the objection, expressly assumed the State was doing so on behalf of the witnesses and

specifically requested the trial judge's in camera review. The trial court followed the procedure

established by Bean and Printy and ruled the sealed medical records were not relevant to the

trial. Accordingly, we conclude the procedure did not violate defendant's right of cross-

examination and right to due process of law. Bean, 137 Ill. 2d at 100-01; Printy, 232 Ill. App. 3d

at 744. In addition, we observe defendant did not include the mental health records sealed by the

trial court in the record on appeal. 9 We resolve any doubts arising out of this incompleteness of

the record against defendant. Foutch v. O'Bryant, 99 Ill. 2d 389, 392 (1984). Therefore,

defendant's argument on this point is not persuasive.




9
  Defendant filed a supplemental record containing sealed records, but these sealed records
included only a transcript of the sentencing hearing and materials defendant submitted as an
exhibit to his motion to reconsider the sentence.
                                                 31
1-13-1959


¶ 108                            C. Publication of Medical Records

¶ 109 Defendant further contends the trial judge erred in refusing to publish the medical records

admitted at trial to the jury. Defendant maintains it was important for the jury to review the

notes of what occurred during the examinations, which tests were performed or ordered, what

treatments were prescribed, and who was present during examinations. "The decision whether to

allow jurors to take exhibits into the jury room is left to the sound discretion of the trial court."

People v. McDonald, 329 Ill. App. 3d 938, 947 (2002). "We will not reverse that decision unless

there is an abuse of discretion to the prejudice of the defendant." Id. at 948.

¶ 110 Defendant relies entirely on Troyan v. Reyes, 367 Ill. App. 3d 729 (2006). In Troyan, the

trial court prohibited the plaintiff from publishing medical records to the jury because the

physician and physical therapist were not available to testify about the opinions contained

therein. Id. at 736. The appellate court reversed the trial court's ruling, finding that diagnoses

and opinions contained in medical records should be admissible and published to the jury as a

proper part of the business records exception to the hearsay rule, due to their inherent reliability

and trustworthiness. Id. at 734-35. The Troyan appellate court, however, also indicated that this

holding "does not give parties free rein to introduce medical records as a substitute for expert

medical testimony. Like all business records, medical records may be excluded if they are not

relevant or are too complex for the jury to understand on its own." Id. at 736.

¶ 111 In this case, unlike in Troyan, Jaqueline, Debra, and defendant provided testimony to the

jury regarding relevant portions of the medical records of M.S., N.R., and B.S. Moreover, unlike

in Troyan, defendant did not seek to introduce the medical records in this case to establish expert

medical opinions and diagnoses, but to contradict the testimony of M.S., N.R., and B.S.

regarding what occurred during their examinations. The trial judge declined to send the medical



                                                  32
1-13-1959


records to the jury on confidentiality grounds, which is an issue not addressed by Troyan or

defendant. Moreover, the trial judge denied defendant's posttrial motion regarding the refusal to

provide the medical records to the jury on the ground that the records contained coding that

would have been confusing to the jury. This reasoning was consistent with the Troyan court's

admonition that medical records may be excluded if they are too complex for the jury to

understand on its own. Id. Accordingly, we conclude defendant has failed to demonstrate the

trial judge abused her discretion in declining to send the medical records to the jury.

¶ 112                           D. Limitations of Cross-Examination

¶ 113 Defendant next argues the trial judge erred by limiting the cross-examination of witnesses

against him. A defendant has a federal and state constitutional right to confront witnesses

against him. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. This right includes

cross-examining witnesses to show any interest, bias, prejudice or motive to testify falsely.

People v. Klepper, 234 Ill. 2d 337, 355 (2009); People v. Averhart, 311 Ill. App. 3d 492, 496-97

(1999). Nevertheless, "[t]he latitude to be allowed on cross-examination rests within the sound

discretion of the trial court; a reviewing court should not interfere absent a clear abuse of

discretion resulting in manifest prejudice to the defendant." People v. Hall, 195 Ill. 2d 1, 23

(2000); see People v. Nutall, 312 Ill. App. 3d 620, 627-28 (2000). Further, "[a] trial judge

retains wide latitude to impose reasonable limits based on concerns about harassment, prejudice,

confusion of the issues, the witness' safety, or interrogation that is repetitive or of little

relevance." Klepper, 234 Ill. 2d at 355 (citing Delaware v. Van Arsdall, 475 U.S. 673, 679

(1986)). "[T]he Confrontation Clause guarantees an opportunity for effective cross-examination,

not cross-examination that is effective in whatever way, and to whatever extent, the defense

might wish." (Emphasis in original.) Delaware v. Fensterer, 474 U.S. 15, 20 (1985). The court



                                                   33
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looks to what the defendant had been allowed to do, not to what the defendant was prohibited

from doing, to evaluate the constitutional sufficiency of cross-examination. People v. Truly, 318

Ill. App. 3d 217, 233 (2000). The reception of evidence collateral to an issue in a case and

intended to affect the credibility of a witness rests usually within the discretion of the trial court.

Printy, 232 Ill. App. 3d at 745.

¶ 114 In this case, the trial judge sustained the State's objection to cross-examination of M.S. on

whether she had lied to the State about visiting other doctors in the United States after the

incident. Defendant, however, had already elicited damaging testimony from M.S. on cross-

examination. M.S. testified it was not uncommon for defendant's employees to enter the

examination room during an examination. M.S. further testified that defendant pulled down her

pants, which she had not testified to during direct examination. M.S. also acknowledged this

was the "fifth different story" she had provided about the alleged assault. Further, M.S. testified

her sister met with defendant 10 times after the incident, but that she did not inform her sister of

the incident. The questions of whether M.S. visited doctors in the United States after the

incident and whether M.S. accurately conveyed this to the prosecutors were of marginal

relevance, particularly in light of the cross-examination defendant accomplished with M.S.

Accordingly, defendant has failed to establish that the trial court abused its discretion in limiting

cross-examination on this subject matter.

¶ 115 The trial judge also limited the cross-examination of B.S. regarding the lawsuit ostensibly

filed on her behalf. Specifically, the trial judge ruled B.S. could be cross-examined regarding

whether she was aware of a lawsuit filed two years after the final incident, but that defense

counsel could not impeach B.S. with a document she had not signed and of which she might not

be aware. Generally, an unsigned complaint cannot be used to impeach a witness. Ryan v.



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Mobil Oil Corp., 157 Ill. App. 3d 1069, 1081-82 (1987); Mantia v. Kaminski, 89 Ill. App. 3d

932, 937 (1980). Accordingly, we conclude defendant has failed to demonstrate the trial court

abused its discretion in limiting cross-examination of M.S. and B.S.

¶ 116                                     E. Sentencing

¶ 117 Lastly, defendant argues the trial judge committed two errors during his sentencing

hearing. First, defendant contends the trial judge erred by limiting the cross-examination of L.H.

Second, defendant argues the trial judge failed to properly weigh the aggravating and mitigating

factors by relying in large part on L.H.'s testimony. We address these arguments in turn.

¶ 118 Regarding the cross-examination of L.H., it is well settled that the "ordinary rules of

evidence are relaxed at the aggravation/mitigation stage of sentencing." People v. Terrell, 185

Ill. 2d 467, 505 (1998); People v. Cloutier, 178 Ill. 2d 141, 158 (1997). A sentencing court has

broad discretionary power to consider various sources and types of information so that it can

make a sentencing determination within the parameters outlined by the legislature. People v.

Harris, 375 Ill. App. 3d 398, 408 (2007), aff'd, 231 Ill. 2d 582 (2008) (citing People v. Williams,

149 Ill. 2d 467, 490 (1992)). The latitude permitted in the cross-examination of witnesses at trial

is a matter within the discretion of the trial court; no more restrictive rule should be imposed

during a sentencing hearing, when the guilt of the defendant is no longer an issue and the trial

court is seeking all proper information to assist it in determining the question of punishment.

People v. Adkins, 41 Ill. 2d 297, 302 (1968). The court's ruling on the character and scope of

cross-examination at a sentencing hearing will not be overturned on appeal absent an abuse of

discretion which results in manifest prejudice to the defendant. People v. Thompson, 234 Ill.

App. 3d 770, 778 (1991).

¶ 119 In this case, defendant claims L.H.'s full medical records could have provided the



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opportunity to impeach or effectively cross-examine her regarding the necessity of the follow-up

examination. During cross-examination, L.H., acknowledged her medical records indicated

defendant treated her for human papillomavirus and genital warts. L.H. also denied she ever had

a sexually transmitted disease. Further, assuming arguendo that other medical records would

corroborate that L.H. had a sexually transmitted disease, defendant may have been able to

establish a follow-up examination was necessary, but he could not establish that the follow-up

examination was a professional examination, as opposed to sexual misconduct. Defendant

presented no evidence during the sentencing hearing on this latter issue, as the State noted during

the hearing on defendant's motion for reconsideration of the sentence. Given this record,

defendant cannot establish manifest prejudice resulting from the trial court's limitation of cross-

examination.

¶ 120 Defendant further contends the trial judge failed to properly weigh the aggravating and

mitigating factors by relying on L.H.'s testimony. The trial court has broad discretionary powers

to fashion an appropriate sentence within the statutory limits prescribed by the legislature.

People v. Fern, 189 Ill. 2d 48, 53 (1999). A court is not bound by the usual rules of evidence in

determining a sentence, but may search anywhere within reasonable bounds for other facts which

may serve to aggravate or mitigate the offense. Harris, 375 Ill. App. 3d at 408. The trial court

may inquire into a defendant's general moral character, habits, social environment, abnormal

tendencies, age, natural inclination or aversion to commit crime, and stimuli motivating his

conduct, in addition to his family life, occupation, and criminal record. Id. at 408-09. This

inquiry is limited only by the prerequisite that the information considered be accurate and

reliable as determined by the trial court within its sound discretion. Id. at 409. Although the

sentencing judge is not limited to considering only information which would be admissible under



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the adversary circumstances of a trial, the judge must exercise care to insure the accuracy of

information considered and to shield herself from the potentially prejudicial effect of improper

materials. See People v. La Pointe, 88 Ill. 2d 482, 494-95 (1981).

¶ 121 "A reviewing court gives great deference to the trial court's judgment regarding

sentencing because the trial judge, having observed the defendant and the proceedings, has a far

better opportunity to consider these factors than the reviewing court, which must rely on the

'cold' record." Fern, 189 Ill. 2d at 53; see People v. Alexander, 239 Ill. 2d 205, 212-13 (2010).

A reviewing court may not alter a defendant's sentence absent an abuse of discretion by the trial

court. Alexander, 239 Ill. 2d at 212. A sentence will be deemed an abuse of discretion where the

sentence is " 'greatly at variance with the spirit and purpose of the law, or manifestly

disproportionate to the nature of the offense.' " Id. (quoting People v. Stacey, 193 Ill. 2d 203,

210 (2000)).

¶ 122 In this case, defendant argues the trial judge's analysis was improperly influenced by

L.H.'s testimony, which led her to conclude defendant had a history of criminal activity and his

conduct was not the result of circumstances unlikely to recur. Defendant asserts L.H.'s testimony

was "simply unreliable." For the reasons already stated, however, defendant had an adequate

opportunity to cross-examine L.H. at the sentencing hearing. Moreover, defendant submitted

documentary evidence under seal that he believed would discredit L.H. 10 The trial court, which

was in a better position to assess L.H.'s credibility (People v. Williams, 303 Ill. App. 3d 264, 268

(1999)), chose to rely on L.H.'s testimony. In addition, even if L.H.'s testimony was dismissed as

incredible, the testimony adduced at trial established defendant's propensity to commit criminal

sexual assault against his patients over a period of years. Accordingly, defendant has failed to

10
  This material was also submitted to this court under seal, albeit without defendant's motion to
reconsider the sentence.
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establish the trial judge improperly applied the factors in aggravation and mitigation of the

offense.

¶ 123                                 III. CONCLUSION

¶ 124 For all of the aforementioned reasons, the judgment of the circuit court of Cook County is

affirmed.

¶ 125 Affirmed.




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