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By Judy Selby, C. Zachary Rosenberg Contact All Articles 

Law Technology News

December 6, 2013

The Telephone Consumer Protection Act (TCPA), which restricts telephone solicitations and limits the use of automatic dialing systems, prerecorded voice messages, and SMS text messages, has become a favorite of class action attorneys because it provides a private right of action and statutory damages of $500 for each violation and up to $1,500 for each willful violation.

Read more: http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1386308013423&New_Legislation_Adds_Risks_to_RoboCalling_Texting_#ixzz2n0XCj3dt

Criminal Sexual Assault - Illinois v Fry

2013 IL App (2d) 120897

PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
DALE FRY, Defendant-Appellant.

No. 2-12-0897

APPELLATE COURT OF ILLINOIS SECOND DISTRICT

Order filed March 25, 2013

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Kendall County.
No. 10-CF-0072
Honorable John A. Barsanti, Judge, Presiding.

JUSTICE HUTCHINSON delivered the judgment of the court.
Justices Jorgensen and Spence concurred in the judgment.

Defendant  Dale Fry acknowledged that he and the victim A.G.was his student at Oswego high school. The two sent each other in excess of 700 text messages between April 2009 and February 2010. Defendant admitted that he sent the victim a text message telling the victim that he missed her. Defendant admitted that he was Facebook friends with the victim and that he saw pictures of her on her Facebook page.
On July 21, 2011, the trial court found defendant guilty of criminal
sexual assault. The trial court found the victim's testimony more credible than defendant's testimony, and found that the victim's testimony was corroborated by the State's other witnesses and the text messages. The trial court found that "there was an act of sexual penetration with the victim" who was under 18 years of age.
The trial court issued its ruling on July 12, 2012. The trial court concluded that the State improperly amended counts II and III of the indictment and vacated the guilty finding for those counts. The trial court denied defendant's posttrial motion with respect to the sufficiency of the evidence and the ineffective-assistance-of-counsel claims. 

Defendant's first contention on appeal was that the State failed to prove him guilty of criminal

sexual assault beyond a reasonable doubt. In support of this contention, defendant emphasized that the victim did not report her accusation for five months; she denied that a sexual act occurred when initially discussing the matter with her mother; and defendant has consistently denied the allegations. Defendant further notes that the victim remained in defendant's class after the September 10, 2009, incident, and because she was highly intelligent, her theory that she did not realize the abusive nature of her relationship with defendant until she watched the Oprah Winfrey show was "simply incredible." Defendant stresses that his testimony "should have carried great weight with the lower court" because he was a respected teacher and scouting leader.

We are aware that defendant denied committing the acts and testified that he had a reduced libido resulting from his medications. However, the victim's testimony contradicted defendant's testimony, and "[i]t is well settled that a criminal sexual assault conviction may be sustained on the victim's testimony alone."People v. Carlson, 278 Ill. App. 3d 515, 521 (1996). Moreover, we note that the State introduced the numerous text messages between defendant and the victim, including text messages from defendant to the victim that he missed her. The trial court could have relied on this evidence when assessing the victim's testimony and credibility that she and defendant had a physically intimate relationship.

¶ 48 Finally, while the Court recognized that the victim did not report the September 10, 2009, incident until the following February, a victim's testimony cannot be rejected merely because she did not immediately report the incident. People v. Bowen, 241 Ill. App. 3d 608, 620 (1993). 

¶ 51 Defendant's next contention on appeal was that he was denied the effective assistance of counsel because his trial attorney failed to introduce evidence of defendant's condition of erectile dysfunction. According to defendant, such evidence "would have had a devastating impact on the believability of [the victim's testimony] and should have raised a reasonable probability that [the victim] has not been candid in describing the alleged sexual assault." Defendant further maintains that his trial counsel was ineffective because he failed to object to the hearsay testimony of Ash and Contino, which "improperly corroborated" the victim's testimony.

Defendant's argument was found unpersuasive. "A defense counsel's decision not to object to the admission of purported hearsay testimony involves a matter of trial strategy and, typically, will not support a claim of ineffective assistance of counsel." People v. Theis, 2011 IL App (2d) 091080, ¶40. Nonetheless, even if Nathe's failure to object could support a claim of ineffective assistance of counsel, defendant cannot satisfy the prejudice prong. As noted above, in addition to the victim's testimony, the State introduced in excess of 700 text messages between May 15, 2009 and April 15, 2010, including text messages from defendant telling the victim that he missed her.

For the foregoing reasons, the Court affirmed the judgment of the circuit court of Kendall County.
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