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People v. Server

OPINION FILED OCTOBER 28, 1986.

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

v.

RICHARD SERVER, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Vermilion County; the Hon. Paul C. Komada, Judge, presiding.

PRESIDING JUSTICE MCCULLOUGH DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 26, 1986.

On July 1, 1985, the defendant, Richard Server, was convicted by a jury of one count of aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12-14) and two counts of aggravated criminal sexual abuse (Ill. Rev. Stat. 1985, ch. 38, par. 12-16) of his 9-year-old stepdaughter. Judgment was entered on count I (aggravated sexual assault), and the trial court ruled counts II and III merged (aggravated criminal sexual abuse) and entered judgment thereon. On September 19, 1985, the defendant was sentenced to serve eight years for aggravated criminal sexual assault and three years for aggravated criminal sexual abuse to run concurrently. Defendant appeals from the order of the trial court. We affirm.

Defendant alleges four grounds for reversal on appeal: first, that he was not proved guilty beyond a reasonable doubt; second, that expert testimony regarding the "rape trauma syndrome" was improperly admitted; third, that the testimony of a Department of Children and Family Service (DCFS) worker was improperly admitted under the corroborative-complaint provision of the Code of Criminal Procedure of 1963 (the Code) (Ill. Rev. Stat. 1985, ch. 38, par. 115-10); and fourth, the aggravated-criminal-sexual-assault and aggravated-criminal-sexual-abuse statutes are unconstitutional.

The conduct in this case occurred between the time the defendant and his wife separated on August 4, 1984, and the date their divorce was granted on November 7, 1984. During this period of separation, the defendant and his wife established a visitation schedule for her daughter, M.H. (defendant's stepdaughter) — the victim — and their daughter Susan. The schedule consisted of the defendant having custody of the children on Tuesday evenings, Thursday nights overnight, and every other weekend from Thursday night through Monday morning. On November 9, 1984, defendant's wife accused the defendant of sexually abusing her daughter, M.H.

At trial, M.H. who was 10 years old, testified that the defendant sexually assaulted her on two of these visitations, the first being an overnight visit up to four weeks before Halloween. She described in detail how defendant had abused her. M.H. stated that this conduct happened three times on the first night. She then related a second assault where the defendant had again engaged in sexual acts with her. This time, however, due to her age and obvious nervousness, the court, over defense objection, allowed the prosecutor to lead M.H. regarding the details of the activity.

Carol Server (Carol), the defendant's wife, testified that M.H. had approached her on November 9, 1984, crying and upset. M.H. indicated that the defendant "had taken her into his bed and pulled her panties down." Carol stated that she had difficulty believing this and did not officially report it immediately, but waited until January 14, 1985, when she talked to DCFS investigator Pat Ferris. Carol further stated how M.H.'s behavior and attitude changed drastically during this period of time. She indicated how M.H. became a greater discipline problem, started having trouble dealing with her friends, stopped playing with her friends, and stopped referring to the defendant as "daddy," and instead called him "Richard."

On January 14, 1985, Carol contacted DCFS investigator Ferris, who interviewed M.H.M.H. was then examined by Dr. Elghammer, a local pediatrician. At trial Dr. Elghammer testified that M.H. had a hymenal opening of 9 millimeters. The doctor also testified to the child's medical history, stating that it was necessary and relevant to his diagnosis.

Dr. Elghammer testified to over 32 years' experience as a pediatrician. He had examined several thousand children who were M.H.'s age and specifically examined some 120 children under 10 years old for evidence of sexual abuse or assault in the last two years. It was his opinion that the history given, coupled with the physical examination, were consistent with physical sexual abuse. The expert testimony proffered by the State through Dr. Elghammer was foundationally sound and properly based upon his training, education, and expertise.

Dr. Elghammer never proffered the opinion that M.H. had been sexually abused. Instead, he merely acknowledged that articles in the field of child gynecology strengthened his diagnosis that the history and physical examination were consistent with physical sexual abuse.

The defense tendered an obstetrician gynecologist, Dr. Victoria Nichols, whose entire experience with examination and measurement of hymenal openings for girls the age of M.H. consisted of "perhaps ten or more." She acknowledged that neither pediatrics nor pediatric gynecology were her specialty and further testified that she had never examined or spoke with M.H. Her testimony described the difference of opinion gynecologists have from pediatricians regarding the significance of a doctor's hymenal measurements. She testified that a hymenal measurement of 9 millimeters was normal for a child of 10 years of age.

The final witness for the State, Pat Ferris, testified that she was an investigator for the Department of Children and Family Services. Ferris, who spoke with M.H., stated that M.H. indicated that she had been sexually molested on two occasions by the defendant. This testimony was allowed over defense objection under the corroborative-complaint provision of the Code (Ill. Rev. Stat. 1985, ch. 38, par. 115-10).

The defendant called a number of people who testified to having seen the defendant and M.H. together at times purported to be after the assaults took place. The purpose of such testimony was to indicate that they observed nothing about M.H.'s behavior toward the defendant which caused them concern or which seemed to be abnormal.

The defense also tendered Sherry Huffman, M.H.'s fourth-grade teacher, who testified that M.H. told her that she had been "sexually bothered." Huffman also related how M.H.'s grades dropped around the time she told Huffman about being "bothered." She further indicated M.H.'s attitude and behavior changed at or about that time and that M.H. also stopped calling the defendant "dad" but instead referred to him as "Richard." Huffman also testified about a composition that M.H. had written in early April 1985. The testimony was offered to rebut any indication that M.H. had little knowledge of sexual matters.

The defendant, a 47-year-old practicing attorney and former first assistant State's Attorney for Vermilion County, testified in his own behalf. He denied ever having touched or fondled M.H. at any time. He did, however, acknowledge certain aspects of M.H.'s testimony surrounding the assaults. One of the incidents had begun one night after school started when M.H. and her sister had been sleeping together at the defendant's home and a fight began between the two girls which necessitated their separation. The defendant stated under cross-examination that the incident did occur and M.H. did move into his bed to sleep. He verified that a clock was visible from the bed in his room as M.H. testified. The defendant also stated that he did wear white T-shirts and blue jeans as M.H. had related during her testimony.

M.H. had also testified to another incident where she had been taking a bath at the defendant's home when he entered the bathroom, pulled aside the shower curtain and, when M.H. covered herself with a washcloth, he pulled it away from her, exposing her to his view. The defendant admitted having entered the bathroom on that occasion, and acknowledged he had, in fact, pulled the shower curtain back so he was able to see her in the bathtub. On cross-examination, the defendant admitted to pulling the washcloth away from M.H. and exposing her.

In rebuttal, the State offered the testimony of Donna LeClerc, who was tendered as an expert witness in the area of the rape trauma syndrome. She was first questioned at length outside the presence of the jury before the trial court permitted her testimony before the jury.

LeClerc, a clinical psychologist, had a B.A. in psychology at the time of the trial, and had completed two years of law school. LeClerc testified that she had been working in the area of sexual assault and abuse since 1975. She enumerated all past experience, including participation at conferences, workshops and training seminars specializing in child sexual abuse. She listed numerous training sessions that she conducted with various agencies, including medical staffs, Department of Children and Family Services, and police agencies. She further indicated her real work with child sexual assault had ...


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