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People v. Bitler

OPINION FILED AUGUST 21, 1986.

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

v.

STEVEN BITLER, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Whiteside County; the Hon. Edward Keefe, Judge, presiding.

JUSTICE WOMBACHER DELIVERED THE OPINION OF THE COURT:

The defendant, Steven Bitler, was charged with two counts of aggravated criminal sexual assault and two counts of aggravated criminal sexual abuse involving two victims, both minor female children. Following a jury trial, the defendant was found guilty on all counts. Subsequently, the trial court sentenced the defendant to two 12-year concurrent sentences on the aggravated-criminal-sexual-assault convictions. The defendant appeals, contending that the trial court erred in allowing the mother of the victims to testify as to certain inculpatory statements made to her by the victims. We affirm.

The relevant facts were established at the trial. In February and March of 1985, the defendant lived in Fulton. He and his sister lived next door to Laura Steen, the mother of two daughters, five-year-old J.A. and three-year-old M.K. (the victims). She also had a son J.S., who was nine years old. Laura had known the defendant, through his sister, for about 10 to 12 years. The defendant babysat for Laura four or five times during this period.

In March of 1985, the victims began to complain of pain in their vaginal areas. On March 29, Laura took the victims to Dr. Richard Londo. Following an examination, the doctor concluded that their condition was an irritation caused not by an infection but rather by a mechanical factor such as rubbing.

In April of 1985, Laura and her children moved into a house in Albany with a friend, Doreen Van Campen, and her three-year-old daughter. Because the defendant's sister had expelled the defendant from her apartment, Laura and Doreen allowed the defendant to stay with them temporarily.

Between April 8 and April 16, the defendant babysat four times for Laura's and Doreen's children. Shortly after midnight on April 15, 1985, J.S. was awakened by what he thought was the defendant's voice whispering in the victims' bedroom directly below his. Looking through a floor register to the victims' room, J.S. saw a moving light which appeared to be a flashlight. J.S. woke his mother and told her what he had seen. Laura looked from her room, but could neither see light coming through the register nor hear sounds coming from downstairs.

On the night of April 15, after the victims were in bed asleep, Laura and Doreen left the house at approximately 10:45 p.m. The defendant remained at home to baby-sit the women's children. They stopped at a bar for a drink and then went to Laura's sister's home. When Doreen mentioned that her daughter, who slept in the same bedroom as the victims, had complained about pain in her vaginal area, Laura became suspicious that someone may have been molesting their children. Laura and Doreen returned home between 11:30 p.m. and 11:45 p.m. and woke the victims.

Laura first woke J.A. and asked her daughter whether anyone had "messed with her coochie [i.e., her vagina] or pulled down her panties." J.A. responded that the defendant had. When Laura asked what the defendant had done, J.A. stated that the defendant had put his finger in her "coochie" and made it wet.

Laura then woke M.K., who slept in the same room as J.A. Laura asked M.K. if anyone had been "playing with her coochie." M.K. responded that the defendant had and told Laura that he put his finger in her vagina and made it wet. M.K. also stated that the defendant came every night with a flashlight and got in bed under the covers with her. The next day, April 16, the defendant was arrested.

At the trial, the victims were found to be incompetent to testify. When the State began to question Laura as to the statements made to her by the victims, the defense objected and argued extensively that her testimony about her daughters' statements would be inadmissible as hearsay. The State argued, and the trial court agreed, that the victims' statements were admissible under the spontaneous-declaration exception to the hearsay rule. Following his conviction, the defendant brings this appeal. The defendant's sole issue on appeal is whether the trial court erred in admitting the victims' statements under the spontaneous-declaration exception to the hearsay rule.

• 1 At the outset, the State argues that because the defendant did not raise the spontaneous-declaration issue in a post-trial motion, the defendant has waived this issue on appeal. Actually, the defendant failed to file any post-trial motion. Generally, failure to file a post-trial motion waives all issues on appeal. (People v. Thiel (1981), 102 Ill. App.3d 28, 429 N.E.2d 565.) However, an examination of the trial record reveals that the issue of the admissibility of the victims' statements was timely objected to and well argued before the trial court. Thus, we find that our addressing the issue on appeal will not violate the spirit of the waiver rule. See People v. Amos (1985), 140 Ill. App.3d 14, 488 N.E.2d 290.

The defendant's argument is three pronged. First, the defendant contends that the victims' statements were not spontaneous declarations because they were made an unknown length of time after the offense occurred. Second, the defendant contends the statements were not spontaneous because they were made in response to specific questions. Third, the defendant argues that the statements were not made spontaneously as a result of the startling nature of the offense but rather were made as a result of the victims' being shaken awake from a sound sleep and then questioned.

• 2 To bring a statement within the spontaneous-declaration exception to the hearsay rule, three factors are necessary: (1) an occurrence sufficiently startling to produce a spontaneous and unreflecting statement; (2) an absence of time to fabricate; and (3) the statement must relate to the circumstances of the occurrence. (People v. Poland (1961), 22 Ill.2d 175, 174 N.E.2d 804.) The trial court has considerable discretion in determining whether a statement is admissible as a spontaneous declaration; and its decision will not be reversed absent an abuse of that discretion. People v. Washington (1984), 127 Ill. App.3d 365, 468 N.E.2d 1285.

In the first prong of his argument, the defendant claims that the offense could not have occurred on the night of April 15 because Laura was gone for less than one hour and this was too short a time for the victims to fall into a sound sleep after being assaulted by the defendant. He argues that the offense, if it occurred, was committed 24 hours ...


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