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People v. Mcnichols

OPINION FILED JANUARY 9, 1986.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

RAYMOND J. MCNICHOLS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Massac County; the Hon. Lewis Harmon, Judge, presiding.

JUSTICE HARRISON DELIVERED THE OPINION OF THE COURT:

Defendant, Raymond J. McNichols, was convicted, following a bench trial in the circuit court of Massac County, of aggravated indecent liberties with a child and sexual abuse of a child by a family member. He was sentenced to six years' imprisonment for aggravated indecent liberties with a child and two years for sexual abuse of a child by a family member, with the terms to run concurrently.

On appeal, defendant claims (1) the court abused its discretion in finding the child complainant competent to testify, (2) he was not proved guilty beyond a reasonable doubt, (3) the court erred in admitting hearsay testimony of the child's mother and a social worker, and (4) the court erred in admitting evidence of defendant's prior misconduct. We affirm.

Defendant's wife, Carolyn McNichols, testified that she married defendant in 1975. They had a son, who was born in 1978. On April 18, 1983, defendant, Mrs. McNichols, and their son ate dinner around 7 p.m. Defendant ate his meal in the nude. Mrs. McNichols testified that after dinner, defendant asked the boy, then four years old, to go with him to the boy's room to wrestle and play games. Later, Mrs. McNichols, who was in the kitchen, heard the boy scream, "Oh, you hurt my pee pee." She ran to the child's bedroom, where she saw defendant, still nude, sitting on the floor. The boy was also nude. She asked what had happened, and the child told her defendant "twisted on my pee pee." Defendant told her they were wrestling and that his knee might have bumped the boy's penis. Mrs. McNichols took the boy into another room to dress him. She again asked him what happened and the boy, demonstrating with his own hand on his own penis, told her defendant "twisted it like this and he twisted it up and down like that." For this incident, defendant was charged with sexual abuse of a child by a family member.

Mrs. McNichols further testified that on the night of April 22, 1983, defendant and the child went to bed together in the child's bed. Mrs. McNichols was awakened that night by the sound of something hitting a wall. She stated the child was kicking the wall of his bedroom, with the noise sounding as if he was "trying to climb or get away." She then heard what she called a "blood curdling" scream from her son. She ran to his room, turned on the light and saw defendant jumping out of the bed. He was nude and had an erection. The child was not wearing his pajamas and was screaming and crying. Defendant told his wife he thought the boy was having a nightmare. As Mrs. McNichols tried to quiet her son, she noticed blood on his buttocks. He told her it was sore and it hurt.

Mrs. McNichols ordered defendant to leave the house, but he refused. She then told him she would leave with the child, but defendant said she would not because he did not intend "to get caught again." Defendant left the bedroom and returned with a pistol. Mrs. McNichols testified she told him again to leave but he again refused and for a second time he commented about not getting "caught again." She testified defendant told her if she were to leave, she would see how long she stood up if she tried to walk through the door. He also told her not to call the police if she knew what was good for her.

Mrs. McNichols held her son most of the night and finally put him to bed around 5 a.m. He woke up around 9 a.m., and when he tried to sit down to watch television, he started crying and said he could not sit down. Mrs. McNichols testified the boy told her his buttocks were sore, and that the night before, defendant had taken him into the bathroom and told him he had to check him for worms. She stated the boy told her he laid on his back on the floor, and defendant put his finger into the child's anus. After hearing the boy's report of what had happened, Mrs. McNichols examined his anus and found it to be red, irritated with broken skin, and it had the appearance of having bled. This evidence was related to the charge of aggravated indecent liberties with a child.

The victim child testified after the court examined him in chambers and determined him competent to do so. He testified he and defendant often slept together in the child's bedroom. He stated one time defendant did not have any clothes on, and that defendant took off his, the boy's clothes, then defendant "hurt my pee pee" by twisting it, and that defendant would twirl him around "so that my face would hit his pee pee." He stated that when defendant twisted his penis, he screamed "bloody murder" and his mother came into the room. He told her what had happened. He also stated that one day defendant put his finger into his anus and that defendant told him he was checking for worms. The boy testified he also told his mother about this incident.

A social worker, Nina Russell, testified that she visited the victim's home on May 2, 1983, and she testified as to what the boy told her during that visit. She stated the boy told her defendant swung him back and forth between his legs so that their penises touched. She testified the child told her about times when defendant checked his anus for worms and that one time defendant had told him he had a blade of grass in his anus and needed some help getting it out.

Also testifying for the State was the 22-year-old natural son of Mrs. McNichols, who testified that when he was 11 or 12 years old defendant had fondled his penis and put the boy's penis in his mouth. He also testified defendant had tried to put his penis in the boy's rectum but was unsuccessful.

Defendant, who was 57 years old at the time of these incidents, took the stand in his own defense. He denied committing the offenses charged. He admitted he frequently wrestled with his son, laid with him to help him go to sleep, and gave him baths, but testified that his contact with his son's penis and rectum was limited to washing and drying with a towel. Defendant testified the child had bowel problems which would tear the tissue in his rectum and that there were times his son's buttocks would be red from a rash. Three witnesses, who were the adult children of defendant, each testified defendant had never engaged in any inappropriate conduct of a sexual nature with them.

• 1 Defendant first contends the court abused its discretion in finding the child victim, defendant's son, competent to testify. He claims the boy had no independent recollection of the alleged offenses. The competency of a minor to testify is determined by the degree of intelligence rather than age. To determine a minor's intelligence, the court should consider whether he is sufficiently mature to (1) receive correct impressions from his senses; (2) recollect these impressions; (3) understand questions and narrate answers intelligently; and (4) appreciate the moral duty to tell the truth. People v. Sanchez (1982), 105 Ill. App.3d 488, 492, 434 N.E.2d 395, 398.

The court held a hearing in chambers to determine the boy's competency. The child exhibited an ability to remember his age, which was five years at the time of trial, the street and town where he lived, and the names of relatives and friends. He told the court that "to tell a lie is not what really happened," and that people who tell lies would "go to hell." He also stated he would never tell a lie.

• 2 Based upon this record, we cannot find the court abused its discretion in finding the youth competent to testify. However, defendant points to contradictory statements made by the child during the competency hearing and at trial. The following dialogue from the competency hearing typifies the contradictions:

"THE COURT: Let me ask you this * * *. Has anybody told you what you are supposed to say here today?

WITNESS: No.

THE COURT: No body has told you that you have to ...


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