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In Re A.m.c.

OPINION FILED NOVEMBER 3, 1986.

IN RE A.M.C. III, A MINOR (THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE

v.

A.M.C. III, RESPONDENT-APPELLANT).



Appeal from the Circuit Court of Lake County; the Hon. Henry C. Tonigan III, Judge, presiding.

JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:

A.M.C., the minor respondent, was charged as a delinquent minor (Ill. Rev. Stat. 1985, ch. 37, par. 702-2) with four counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12-14(b)(2)(i)). At an adjudicatory hearing, the trial court directed a verdict for respondent as to one of the counts, but adjudged him a delinquent minor based on the remaining three counts. Respondent was placed on 24 months' probation and 16 days' secured detention. He appeals, claiming that the trial court erred in (1) finding the five-year-old complaining witness competent to testify and (2) in permitting the complaining witness' mother to testify to details of the complaint which were made to her after the incident.

The State filed a petition for adjudication of wardship based on a sexual assault described as acts of penetration of the complaining witness by (1) placing his penis in her vagina and mouth; (2) placing his tongue in her mouth; and (3) placing his finger in her vagina. The court directed a finding for respondent on the act of placing his tongue in her mouth. Initially, the court found that the complaining witness (S.S.), who had turned five years old a month before the hearing, was competent to testify. The following day, S.S. testified about the details of the alleged incident.

S.S. stated that "[respondent] took me down in the basement and humped me." She stated that respondent pulled her downstairs and took off her clothes. He then took off his own clothes and lay on top of her. Using anatomically correct dolls to demonstrate, she indicated that respondent "put it up in my stuff," placing the penis of the male doll in the vagina of the female doll. She said that respondent also put his tongue in her mouth and "his stuff" in her mouth and in her "butt." She also indicated that he put his fingers in her vagina.

On cross-examination, she stated that she had previously been shown the dolls by Chris Bellios, a victims' assistant, and by the prosecutor. They had shown her what respondent did to her a total of six times. Both the witness' sister, LaSandra, and her mother had told her to say that respondent had put his "stuff" in her "stuff."

The victim's mother testified that she took her three daughters to their baby-sitter's home on the morning of July 2 and then went to work. She got home from work very late that night and so did not see the children until the following evening. At that time, based on a previous talk with the baby-sitter, she asked the victim what had happened between her and respondent. Over objection, she said that the victim said that respondent took her into the basement, took off her clothes and hurt her. The victim said that respondent put his "thing" in her mouth, licked her and "was feeling on" her.

Other witnesses included the baby-sitter, a police officer who had questioned respondent regarding the incident, and the nurse and emergency-room physician who had examined the victim after the incident. Respondent also testified in his own behalf.

At the close of all the evidence, the trial court granted a directed finding on one of the four counts. It found that the other three counts had been proved beyond a reasonable doubt and declared the respondent a delinquent minor and a ward of the court.

• 1, 2 Respondent's first issue is whether the trial court erred in finding five-year-old S.S. competent to testify. The question of a witness' competency is for the trial court, and the reviewing court will not disturb such a ruling unless the trial court abused its discretion or misapprehended some legal principle. (People v. Epps (1986), 143 Ill. App.3d 636, 639, 493 N.E.2d 378; People v. Mangiaracina (1981), 98 Ill. App.3d 606, 610, 424 N.E.2d 860.) The controlling factor in determining a child's competency is the degree of his or her intelligence, not chronological age. (People v. Ballinger (1967), 36 Ill.2d 620, 622, 225 N.E.2d 10, cert. denied (1967), 388 U.S. 920, 18 L.Ed.2d 1366, 87 S.Ct. 2141; People v. Epps (1986), 143 Ill. App.3d 636, 639, 493 N.E.2d 378, 380.) A child is competent to testify if he or she is sufficiently mature to receive correct impressions from his or her senses, to recollect and narrate those impressions intelligently, and to appreciate the moral duty to tell the truth. People v. Ballinger (1967), 36 Ill.2d 620, 622, 225 N.E.2d 10; People v. McNichols (1986), 139 Ill. App.3d 947, 951, 487 N.E.2d 1252.

Respondent relies heavily on People v. Willson (1948), 401 Ill. 68, 81 N.E.2d 485, where spontaneous statements by a three-year-old witness to the crime were held incompetent when testified to by adults who heard them. The court stated, "[U]nder the age of six presumption of incompetency would arise, and at the age of five the utmost limit would be ordinarily reached, unless extraordinary development of the mental and religious faculties should be shown * * *." (401 Ill.2d 68, 78, 81 N.E.2d 485.) The recent trend, however, has been toward an extremely broad standard of competency, and recent cases have regularly upheld trial courts' decisions permitting very young children to testify. See, e.g., People v. Bridgeforth (1972), 51 Ill.2d 52, 56-57, 281 N.E.2d 617, 620; People v. Tappin (1963), 28 Ill.2d 95, 97, 190 N.E.2d 806 (5 1/2-year-old found competent); In re E.S. (1986), 145 Ill. App.3d 906, 910, 495 N.E.2d 1334; People v. Epps (1986), 143 Ill. App.3d 636, 639, 493 N.E.2d 378 (six-year-old found competent); People v. McNichols (1986), 139 Ill. App.3d 947, 952-53, 487 N.E.2d 1252 (witness was four at time of offense and five at time of trial); People v. Brown (1980), 91 Ill. App.3d 163, 165, 414 N.E.2d 249 (seven-year-old).

• 3 Respondent points to numerous inconsistencies in S.S.'s testimony. For example, she stated on direct examination that respondent forced her into the basement, but responded on cross-examination that she was already in the basement using the bathroom which was, however, consistent with respondent's testimony. She also made several patently inaccurate statements. When asked when she also went to Sunday school, she answered, "today." She reported that she went to school in the afternoon and ate breakfast there. These inconsistencies relate to relatively minor points; her testimony relating to the essential details of the incident remained consistent. It is well established that once a finding of competency has been made subsequent confusion or contradiction in the testimony goes only to the credibility of the witness, not his or her competency. People v. McNichols (1986), 139 Ill. App.3d 947, 952, 487 N.E.2d 1252; People v. Sanchez (1982), 105 Ill. App.3d 488, 493, 434 N.E.2d 395.

Respondent further argues that S.S. did not demonstrate any independent recollection of the events but was simply parroting what adults had told her to say. He points out that the witness testified that her mother and older sister had told her to use particular words and phrases and that it was admitted that the assistant State's Attorney and the victims' assistant had demonstrated to the witness at least six times what had been done to her. This, too, did not affect competency, but only the weight to be given the evidence by the trial court as the trier of fact. See People v. McNichols (1986), 139 Ill. App.3d 947, 952-53, 487 N.E.2d 1252; cf. People v. Willson (1948), 401 Ill. 68, 78-79, 81 N.E.2d 485.

Respondent complains that the witness did not verbally answer approximately two-thirds of the questions put to her at the competency hearing and on the stand but responded primarily by nodding or shaking her head. In People v. Epps (1986), 143 Ill. App.3d 636, 493 N.E.2d 378, we upheld the trial court's finding that a six-year-old witness was competent to testify. He occasionally gave no response to a question or responded by nodding his head, although after the State's Attorney told him he would have to say yes or no, he gave verbal answers to "virtually" all questions put to him. (143 Ill. App.3d 636, 638, 493 N.E.2d 378.) The ability to vocalize responses to questions, however, is only one factor in the competency determination. The inability of a five-year-old child to verbalize answers to questions put to her by strangers in an intimidating setting such as a courtroom does not automatically render the witness incompetent. The witness in Epps knew his first and last names, with whom he lived, the school he attended, and his past and present teachers. He could recite the alphabet and count to 16. He knew the difference between telling the truth and lying. He did not know what day it was, the number of days in a week or the number of weeks in a month. 143 Ill. App.3d 636, 638, 493 N.E.2d 378.

• 4 Similarly, in the instant case, the witness knew her first and last names, with whom she lived, the names of her sisters, and her age. She could count to 13. She knew that she was in kindergarten and could identify colors and some cartoon characters. She stated that with a "lie you get in trouble" and "if you tell the truth you don't get in trouble." She could vocalize answers to most questions which could not be ...


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