APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
503 N.E.2d 1132, 152 Ill. App. 3d 304, 105 Ill. Dec. 126 1987.IL.100
Appeal from the Circuit Court of Kane County; the Hon. Joseph M. McCarthy, Judge, presiding.
JUSTICE UNVERZAGT delivered the opinion of the court. REINHARD and WOODWARD, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE UNVERZAGT
The defendant, Robert Dean Merideth, was charged by indictment in the circuit court of Kane County with the offense of aggravated criminal sexual abuse. (Ill. Rev. Stat. 1985, ch. 38, par. 12-16(c)(1).) He was found guilty of that offense by a jury and sentenced to 3 years' probation subject to various conditions, including 6 months' imprisonment in the county jail and 12 months' intensive probation supervision.
Prior to defendant's trial, the four-year-old complaining witness, M.M., was examined in chambers and determined by the court not to be competent to testify. The cause proceeded to jury trial, and Penny Oswood took the stand. She had been just one month short of her 14th birthday on May 11, 1985, the date the incident in question occurred. In the early morning on that date, she was baby-sitting for the complainant at complainant's home in Aurora. The house was located less than one block from the Krug School in Montgomery, a village which borders Aurora. Early in the morning, between 9 and 9:30 a.m., Penny and M.M. went to the Krug School park. M.M. went to the tire swing, and Penny sat on a wooden swing ladder. After about one-half hour, a man wearing old blue jeans, work boots, and a tan jacket approached. He was carrying a red umbrella and a pouch with a shoulder strap. He appeared to be in his late thirties or early forties and had grey hair. He began talking to M.M., who was 2 to 4 feet away from Penny. Penny was keeping an eye on the little girl and on M.M.'s house to check to see if M.M.'s father had come home. Penny identified the man in court as the defendant. At one point, M.M. went to the garbage can to throw away a piece of glass. She tripped on the way back, and the defendant helped her up. The two of them then began talking. Next, Penny saw M.M. step back and heard her say, "No." The defendant was sitting on a log with the little girl 1 foot in front of him. Defendant left a few minutes later. About five minutes later, M.M. came over to Penny; she was crying and very upset. When Penny asked her what the defendant had said to her, she said that he said, "Hi," and that he had touched her "pee-pee."
Penny picked her up and ran to M.M.'s house where she called her own mother in Boulder Hill. Before Penny's mother arrived, Penny had M.M. demonstrate on a doll what the defendant had done to her. Over defendant's objection, Penny testified M.M. ran her hand up between the doll's legs. M.M. was still very much upset at that point, but was slowly calming down. Penny's mother arrived, and, after she got M.M. to calm down some more, the demonstration was repeated for Penny's mother. Penny's mother then phoned M.M.'s mother, who requested that the police be called.
On cross-examination, Penny testified that M.M. was talking with the man about a total of 10 minutes, during which time Penny glanced at M.M.'s house about four or five times. In addition to seeing the defendant touch M.M. when he helped her up, Penny testified she saw him touch her arm. She heard some of their conversation, which was about where they lived and about the defendant's watch. About two minutes passed between the time the defendant helped M.M. up to the time she saw M.M. step back and say, "No." Penny did not observe anything out of the ordinary during that time. After she said, "No," M.M. was standing back from the defendant like she was "sort of mad." The defendant left then, and Penny got up and moved away from where M.M. was toward the swings, and M.M. came running to her, crying. Penny asked her, "What did the man say?", and she said he said, "Hi," and when Penny asked her, "What did he do?", M.M. said, "He touched my pee-pee."
Montgomery police officer Caho testified that at the time the defendant was booked, he stated he was 49 years old. Caho also testified that M.M.'s house is on the same block as the Krug School, and that the address given by the defendant was located less than half a block away from the school. The trial was then adjourned until the following day, at which time the trial court again conducted a hearing for a current ruling on M.M.'s competency to testify. The court found she was still not competent to testify.
Montgomery police officer Roy Gustafson was on duty May 11, 1985, and was dispatched to a house bordering the Krug School shortly after 10 a.m. Penny Oswood, her mother, and a three-to-four-year old child, M.M., were present. The child was very nervous and scared. Gustafson let her play with his handcuffs and pen in order to gain her confidence. He asked if a man had been "naughty" to her, and she responded, "Yes." He asked if he had touched her, and, after a few minutes, she nodded in the affirmative. He gave her one of the dolls which was in the living room, and he asked her to relate to him where the man had touched her. She rubbed her hand on the doll's leg and then took two fingers and went to the vaginal area. He pointed to where she had indicated and asked, "Is this where the man touched you?", and she said, "Yes, pee-pee."
Gustafson dispatched a description of the suspect: white male, forties, greyish-white hair, black-and-silver rimmed glasses, tan coat, pouch with shoulder strap, red umbrella, laced work shoes, and blue jeans. Gustafson then left the house and began to search for the man. About one block from Krug School, he found a man who matched the description and conversed with him. He identified the defendant in court as the man with whom he spoke on the street. The officer asked if the defendant had seen someone in the area that matched his description, and the defendant acknowledged that he had walked through the school yard earlier and had spoken to two young girls. Defendant was later arrested.
On cross-examination, Gustafson testified he was wearing a blue uniform, a badge, a gun, "numchucks" (two sticks connected with a chain normally used in karate/martial arts), and a radio, but no hat. He talked with Penny and her mother before he talked with M.M., and they were all present while he talked with M.M. M.M. would not look at his face for several minutes and looked away when she responded affirmatively to his first question about the man being naughty to her. At that time she either said, "Yes," or shook her head indicating in the affirmative. It was after that that he let her play with his handcuffs and pen, and she responded affirmatively but non-verbally to his second question about being touched. The use of the doll is a technique used with young children because it makes them more comfortable. He did not qualify his request to her, "Tell me where you were touched," with the phrase, "if anywhere."
Ruth M., M.M.'s mother, related that she lived in Aurora and that M.M. was almost four years old at the time of trial. On May 11, 1985, she picked up Penny Oswood, her babysitter, about 7:30 a.m. and went to work. Penny's mother phoned later that morning, about 10 o'clock, while she was on her break. At about 5 o'clock that evening, Ruth was alone with M.M. and had a conversation with her. Over defendant's objection that statements made seven hours after the incident are irrelevant, Ruth was permitted to testify that M.M. was quiet and more subdued than usual at the time they talked. Over continuing objection, Ruth testified as follows:
"When I talked to , I asked her what happened while she was in the park that day, and she told me that she didn't want to; and I asked her why, and she told me because the man told her not to; and I pointed out to her that she had talked to Penny and had talked to the policeman earlier that day about it. And it took some convincing on my part for her to even want to talk to me about it.
And I asked her what happened, and she said -- she says, 'The man showed me his watch, talked about his watch.' And she at the time said he asked her if she could read, and she told him no, she couldn't read. And then she -- let's see.
She says, 'Then he touched me.' And I says, 'Well, where did he touch you?' And she didn't use words. She just brushed her hand quickly across her vaginal area."
Ruth testified that M.M. had never made such a report before.
On cross-examination, Ruth testified she asked Penny and her mother to take M.M. to their house. She left work a little before 2 p.m., and between that time and 5 p.m., she went to the Oswood's residence where she and Penny and her mother talked about the incident. M.M. was outside playing at that time, but was in and out of the house during that Discussion. M.M. was not examined by a physician.
After the State rested, defense counsel made a motion for a directed verdict which was denied. The defense then rested. As noted, the jury returned a verdict of guilty of the offense of aggravated criminal sexual abuse.
Defendant's first contention is that he was not proved guilty beyond a reasonable doubt where, although not conceding the admissibility of M.M.'s hearsay declarations, her declarations, when treated as testimony, were uncorroborated and unconvincing. He notes that evidence in a case such as this must be substantially corroborated or otherwise clear and convincing (People v. Higgins (1979), 71 Ill. App. 3d 683) and argues his mere presence at the scene of the incident is not sufficient to prove such corroboration. He points to the fact that even though Penny Oswood testified she saw M.M. step back when she said, "No," and, thus, must have had M.M. in view, she observed nothing. Moreover, he argues Oswood's subsequent conduct in walking farther away from where M.M. was, toward the swings, is inconsistent with the claim that M.M.'s "No" was in rebuff of a sexual advance. Finally, relying on In re Custody of Brunken (1985), 139 Ill. App. 3d 232, he argues that because evidence of the type adduced below has been found insufficient as a matter of law to sustain an adjudication of wardship where proof by a preponderance of the evidence is required, such evidence could not possibly be sufficient to sustain the defendant's guilt where the higher standard of proof beyond a reasonable doubt is required.
In concurrence with the quality of evidence that must be adduced in a case such as this, the State maintains that M.M.'s declarations were both clear and convincing and corroborated and that In re Custody of Brunken (1985), 139 Ill. App. 3d 232, is distinguishable. We agree.
As the State notes, M.M, who was crying and upset, promptly complained of the incident to her baby-sitter, Penny, and demonstrated on a doll for Penny and Penny's mother where the defendant had touched her. Shortly thereafter, for Officer Gustafson, in innocent and startling precise detail, she reenacted on the same doll the defendant's two-fingered movement, all the while averting her eyes from the officer's face. As if such guileless openness would fail to convince, later, for her mother, with considerable hesitancy, she quickly rubbed her hand across her own vaginal area in an abstract rendition of where the defendant had touched her.
We find remarkably convincing the unwavering consistency of the report of such a young victim given over the course of seven hours' time to four different people, at least one of whom (the police officer) was a perfect stranger attired in unfamiliar clothing with dangerous-looking "accessories."
We do not find inconsistent Penny's moving toward the swings, farther away from M.M., after M.M. said "No," since the defendant was still present at that time and M.M. did not begin crying until after the defendant left. Moreover, the defendant and M.M. were still within easy view of Penny. The evidence also showed there was a two-minute period of time during which the defendant conversed with M.M. while she was standing about 1 foot away in front of him. Penny could hear part of their conversation, and, at the same time, she was glancing periodically in the direction of M.M.'s house. Thus, the defendant had the opportunity, albeit brief, to abuse M.M. Penny could easily have missed observing what was likely a rather quick and stealthy movement by the defendant and still have heard and observed M.M.'s reaction to it.
We find the evidence offered in In re Custody of Brunken (1985), 139 Ill. App. 3d 232, distinguishable. As the State notes, in Brunken, as here, the sexually abused minor did not testify, but out-of-court statements made by her to four individuals at various times over a period of nearly a year were admitted as evidence. Because the hearsay statements offered in Brunken were uncorroborated, such as by way of prompt complaint or by admissions of the accused, the court found that they were insufficient by themselves to support a finding of abuse or neglect under section 4-6(4)(c) of the Juvenile Court Act (Ill. Rev. Stat. 1985, ch. 37, par. 704-6(4)(c)). Although we agree Brunken is distinguishable, we must reject the State's argument that the distinction is that here there was a "prompt complaint" so "[M.M.'s] testimony . . . was corroborated."
Although the admissibility of a prompt complaint does not generally extend to crimes other than rape, under section 115-10 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 115-10), a complaint involving a child under the age of 13 concerning criminal sexual assault or criminal sexual abuse, and the aggravated forms of those offenses (Ill. Rev. Stat. 1985, ch. 38, pars. 12-13 through 12-16), is specifically admissible through testimony by the child and testimony by a person to whom the child complained that the complaint was made in order to corroborate the child's testimony. However, M.M. did not testify here, having been found incompetent to do so, and since proof of such complaint is admissible only on the theory that it tends to corroborate the testimony of the prosecuting witness, proof of her complaint was inadmissible on the basis that it was a corroborative complaint. People v. Damen (1963), 28 Ill. 2d 464, 473; People v. Furlong (1945), 392 Ill. 247, 250; People v. Salas (1985), 138 Ill. App. 3d 48, 56.
The instant cause is nevertheless distinguished from Brunken on the basis that M.M.'s statement to Penny in the park fell within the spontaneous-declaration exception to the hearsay rule and, thus, was admissible and sufficient to sustain the defendant's conviction. In order for a statement to fall within this exception, there must have been (1) an occurrence sufficiently startling to produce a spontaneous and unreflecting statement, (2) absence of time to fabricate, and (3) a statement which relates to the circumstances of the occurrence. (People v. Poland (1961), 22 Ill. 2d 175, 181.) The contents of a spontaneous declaration may be shown in toto (People v. Damen (1963), 28 Ill. 2d 464, 474), and, of particular note here, a spontaneous declaration is admissible despite the fact that ...