Appeal from the Circuit Court of Champaign County; the Hon.
Harold L. Jensen, Judge, presiding.
JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
On January 8, 1985, a seven-count information was filed in the circuit court of Champaign County charging defendant, Myron Monroe Boastick II, with the offenses of aggravated criminal sexual assault (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 12-14(b)(1)), and aggravated criminal sexual abuse (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 12-16(c)(1)). The information named the defendant's 12-year-old stepdaughter as the victim of all of the offenses. On March 7, 1985, after a trial by jury, the court entered judgment finding defendant guilty of two offenses of such assaults and two offenses of such abuse. On April 3, 1985, the court sentenced defendant to concurrent terms of six years' imprisonment for each assault offense and three years' imprisonment for each abuse offense.
Defendant has appealed, contending: (1) The State failed to prove beyond a reasonable doubt one of the assault offenses and one of the abuse offenses; (2) one of the sexual abuse convictions was "carved from the same act" as one of the sexual assault convictions and must be set aside; (3) admission of testimony of a prompt complaint by the victim deprived the defendant of due process; (4) the trial court erred in admitting testimony of the victim's mother's opinion of the truthfulness of the victim's complaint; and (5) the State's closing argument deprived defendant of a fair trial. We affirm all convictions and all sentences except one sentence on one of the abuse convictions. We remand for resentencing thereon.
The complainant testified she lived with her mother, her young brother, and defendant, her stepfather. She then told of episodes described in the following paragraphs.
One day when the victim was in her bedroom in the basement of her home, defendant came to the basement and asked her if she had gotten the mail. The defendant then pushed her against the wall and rubbed his fingers against her "privates." Both were fully clothed at the time. Defendant then promised her one dollar if she would not tell her mother of the incident. This was the first time defendant had done anything of this nature to her.
On another occasion, defendant again came to her room and asked if she had gotten the mail. He then pushed her on the bed, removed his and her underwear, and inserted his penis in her vagina. He then, again, offered her one dollar if she did not tell her mother.
The victim could not remember exactly when those two incidents happened but said they occurred in the fall of 1984 after school started.
Later, on November 9 or 10, 1984, complainant's grandmother had been sitting with her and her brother while her mother and defendant were out for the evening. After she had gone to bed, she was awakened by defendant, who was sitting on her bed dressed only in his underwear. Defendant took his and her clothes off, put his penis in her vagina and squeezed her breasts. After certain further acts, defendant explained how people "French" kissed but did not kiss her. When defendant heard the victim's mother coming, he put on his underwear and went upstairs. Her mother then came down to the basement and asked what had happened. The victim had difficulty in answering but finally told her mother what had happened. She then went upstairs and repeated her story in front of defendant.
The victim's mother, Mrs. Boastick, testified that when she and defendant returned at 12:30 or 1 a.m., she gave her mother a ride home, leaving defendant alone with the children. She said that when she returned, she was in the bathroom and saw defendant coming upstairs from the basement. She said that she heard him say "ssh, don't say anything," and he told her he was checking on the battery charger for his motorcycle. She also said that she could hear her daughter downstairs crying and went to ask her what was wrong. Mrs. Boastick indicated that Angela told her that defendant had removed her pants and was "playing" with her breasts and was "messing" between her legs. Mrs. Boastick said that she confronted defendant with the information, but he denied it.
On cross-examination, Mrs. Boastick indicated that the relationship between defendant and the complainant was typical of a stepfather situation, and she was sure her daughter resented defendant in some ways. She also admitted that she might have told the examining pediatrician and complainant's counselor that her daughter did not like defendant. She also admitted that she did not initially believe her daughter's allegations. Mrs. Boastick testified that the complainant had indicated in the spring of 1984 that defendant had fondled her breasts, but that Mrs. Boastick did not then believe her. When recalled by the defense, Mrs. Boastick was asked by the defense whether she made a statement in November 1984 questioning the complainant's veracity. Then, when cross-examined by the State, she said she now believed her daughter.
Deputy Sheriff Paul Pope testified that when he talked to defendant on November 14, 1984, defendant indicated that he had not committed any of the acts alleged. As to the earlier acts charged, defendant did not give a positive denial and indicated that he had been drinking heavily and had blackouts during that period. Dr. Mary Beutow, a pediatrician, testified to examining the complainant on November 19, 1984. According to Dr. Beutow: (1) The victim gave her an explanation of the events of November 9 or 10, 1984, similar to that which the victim testified to at trial; (2) the victim was fully developed sexually, had no hymen, and had external genitalia which indicated she had engaged in intercourse with an adult male.
Defendant testified and denied the allegations against him. He stated that at no time had he engaged in sexual activity with the complainant. He testified that complainant was a disciplinary problem and became angry with him if he agreed with her mother during domestic disputes. He testified that during a period of disciplinary problems in April or May of 1984, complainant had accused him of molesting her. He said that several days later, the complainant told him that she did not want him to live in the house any more.
Count I of the information charged defendant with the offense of aggravated criminal assault in that, being a person of 17 years of age or older, he had placed his penis in the vagina of the complainant who was under the age of 13 years. The offense was alleged to have occurred sometime between July 1984 and November 1984. The charge was submitted to the jury and the jury returned a guilty verdict. Defendant contends that the proof did not support the verdict.
The State relies upon the evidence of the second episode described by the complainant during which she said defendant came to her room and pushed her on the bed. After relating the first episode when defendant allegedly rubbed her genital area, the victim was asked whether there was another time that fall when defendant "did anything" to her. The victim first indicated she could not remember but after several questions, gave a clear explanation of the episode. Defendant maintains that the defendant's conviction of this charge is based entirely on the victim's ...