Appeal from the Circuit Court of St. Clair County; the Hon.
John J. Hoban, Judge, presiding.
JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
The defendant, John Ford, was convicted in a bench trial of rape and indecent liberties with a child and was sentenced to six years' imprisonment in the Department of Corrections. On appeal the defendant contends (1) that the State should not have been allowed to reopen its case, (2) that the victim's brother was not shown to be competent to testify, (3) that the court allowed improper testimony from witnesses regarding statements made to them by the victim and her brother, (4) that the State failed to prove the defendant's guilt beyond a reasonable doubt, and (5) that the sentence imposed was excessive. We affirm.
The minor victim was eight years old at the time of the alleged incident and 10 years old at the time of trial on January 25, 1984. During the period from December 1981 through January 1982, she lived in a two-bedroom trailer with her mother, her brother, and the defendant, her mother's boyfriend, who was 50 years old at the time of trial. The alleged incident occurred on January 1, 1982, while the victim's mother was at work and the victim and her six-year-old brother were at home with the defendant. The victim testified at trial regarding the details of the occurrence, during which the defendant allegedly forced the victim to have sexual intercourse with him and to perform acts of oral sex. The victim stated that while this was occurring her brother stood against the door, watching and "kind of like giggling." When the victim's mother returned home from work, the victim told her what had happened, and the mother called the victim's grandmother, who later came and took the children home with her.
On cross-examination the victim stated that the defendant and her mother got into a fight after her mother arrived home and that the defendant "started beating up on her [the victim's mother]." The victim did not know how long the fight lasted, but her mother called the children's grandmother "right after [the defendant] left." In response to questioning the victim stated that this was "on [that] same day" and that her mother was not working that day but was out, possibly with a friend. The victim stated that she was afraid of the defendant, even before the incident occurred, because "he whips us hard," on one occasion leaving bruises on her and her brother's legs and arms after hitting them with a baseball bat. The victim stated that she did not like the defendant and did not like him before the incident occurred, although she got along with him pretty well until that time.
The victim's brother, Michael, who was eight years old at the time of trial, was allowed to testify over the defendant's objection. He described the defendant's act of intercourse with the victim in child's terms. He stated, however, that prior to the defendant's actions toward the victim, the defendant had told both him and his sister to take their clothes off and that he had been on the bed with the defendant and his sister during the occurrence.
The children's grandmother testified that their mother, her former daughter-in-law, had called her on Sunday, January 3, 1982, to come get the children "because they were put out of the house without any coats and she had been beat on." A few days after the children's arrival at their grandmother's home, the victim told her grandmother about the incident with the defendant, "that she had been touched" and "that he had did it to her." The grandmother contacted the authorities, and the victim later related the incident in greater detail to a case worker who came to the home. When asked on cross-examination if she had ever talked to Michael about the incident, the victim's grandmother stated that "Michael admitted to me, yes, that he saw it."
Dr. Shahnaz Ahmad, a pediatrician at Cardinal Glennon Hospital in St. Louis, testified that he examined the victim on January 22, 1982. He did not take her history because she was very nervous and scared and the nurses had already taken a detailed history. His examination revealed on outer vaginal area that was red and swollen and a ruptured hymen. The victim experienced pain so that the doctor could not use a speculum to examine her. Dr. Ahmad testified that it was his opinion that the victim had been sexually abused. He stated that symptoms such as the victim's would persist for four to six weeks after such abuse had occurred.
Debra Morgan, an agent with the Division of Criminal Investigation (DCI), testified that the victim had described the incident with the defendant in an interview with Ms. Morgan on January 19, 1982. Over the defendant's objection, Ms. Morgan stated that she had also had a conversation with the victim's brother Michael, during which he told her that he had observed the defendant touch the victim's breast and genital areas.
Janet Hessenhauer, a counselor at the Rape and Sexual Abuse Center, testified that the victim had related the incident with the defendant to her over the course of counseling sessions from April 1982 to March 1983. On cross-examination Ms. Hessenhauer stated that the victim had also told her of another instance of sexual molestation occurring a couple of years earlier. On this occasion a neighbor, who was also named John Ford, forced the victim to perform acts of oral sex on him and his son. The victim made it clear that this was a different John Ford and not the defendant.
The defendant testified on his own behalf that on Christmas Eve 1981, immediately prior to the alleged incident, he had spanked the victim with a belt for stealing his wallet. He stated that he did not spend the night of New Year's Eve at the trailer and that, when he got there the next morning, the children's mother was at work and the water lines had "froze up and busted." He called the mother at work, and she came home to help him with the lines, which took three to four hours. He then left for St. Louis, returning briefly the next morning to pick up some clothes before going back to St. Louis. He then returned to the trailer that afternoon after dark, about 7:30 or 8 on Saturday, January 2. The victim overheard him making a phone call to a woman in St. Louis, whom he had been with the previous two nights, and told her mother, after which he and the children's mother got into a bad fight. The defendant spent the night at the trailer, and the next morning the fighting resumed. The defendant testified that after a real "knock-down drag-out" fight that morning, Sunday, January 3, he left around 10 and had not seen the children since. He denied all of the allegations made against him by the victim.
On cross-examination the defendant stated that he was living with the victim's mother at the time of trial and that the only time he hadn't lived with her since the alleged incident was during a six-month period in summer 1983.
The victim's mother, testifying for the defendant, stated that the relationship between the victim and the defendant prior to the alleged incident was "pretty bad" and that the victim would spit at the defendant when he corrected her and tell him that she hated him. The victim's mother reiterated the defendant's testimony regarding his whereabouts during the period in question. The victim's mother testified further that on December 31, 1981, she had caught her daughter having sexual intercourse with a 13- or 14-year-old boy in a shed at her babysitter's house. Three other boys were in the shed while it was happening, one of them her son, Michael. The victim's mother stated that after this incident, she discussed sex with her daughter and whipped her. She further stated that in October 1980, another John Ford, not the defendant, had tried to rape her and, when she resisted, had told her that he had "already tried screwing my daughter." The victim's mother testified that the victim had never told her that the defendant had molested her.
On cross-examination the victim's mother stated that she had not reported the incident of her daughter having intercourse in the shed when she was informed by the DCI agent that sexual abuse was suspected. She stated that this was the first time that she had ever mentioned to anyone connected with law enforcement that her daughter had been sexually active, although she had tried to tell the people from Children and Family Services and "nobody wanted to listen."
At the conclusion of this witness' testimony, the State offered no rebuttal testimony, and the court took the case under advisement. The following day, before the court had entered judgment, the State filed a motion to reopen the case to introduce additional evidence. The State's motion alleged that it had been made aware of evidence regarding the testimony of the victim's mother, that such information was previously unknown to it because of the mother's failure to mention her daughter's prior sexual activity in other court proceedings or in the investigation of the case, and that the State had made diligent efforts to investigate the case but had ...