APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION
504 N.E.2d 850, 152 Ill. App. 3d 589, 105 Ill. Dec. 565 1987.IL.121
Appeal from the Circuit Court of Cook County; the Hon. Thomas R. Fitzgerald, Judge, presiding.
JUSTICE WHITE delivered the opinion of the court. McNAMARA, P.J., and RIZZI, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WHITE
Defendant, 43-year old Terrance Smith, was charged by information with four counts of aggravated criminal sexual assault, one count of criminal sexual assault, and one count of unlawful restraint. At a bench trial, defendant was found guilty of aggravated criminal sexual abuse, held by the trial court to be a lesser included offense of aggravated criminal sexual assault. Defendant received a six-year sentence, and he now appeals.
On November 28, 1984, prosecutrix, who was then 11 years old, lived with her mother and defendant, her mother's boyfriend. Prosecutrix testified that after school that afternoon, defendant picked her up, threw her on a bed, pulled down her pants and underwear, and got on top of her. She testified that she was screaming as he put his penis into her vagina and that defendant put a pillow over her head and told her that if she didn't stop screaming, he was going to kill her. The mother was at work and did not return home until 6 p.m.
Prosecutrix did not tell her mother about these events until December 1st. Early that morning, defendant told the mother that he had gotten "high," that he had almost raped prosecutrix, and that he was moving out. The mother asked defendant what he meant by "almost." Defendant did not elaborate. The mother spoke to her daughter about what had happened and contacted the police, who took them to Mt. Sinai hospital.
At the hospital, mother and daughter were interviewed by an investigator from the Department of Children and Family Services . Prosecutrix was not examined at that time. The mother was impatient because prosecutrix was not being treated and took her daughter home. Six days later, the mother brought prosecutrix back to the hospital. She told the attending nurse that they were wasting their time, that her boyfriend had almost raped her daughter, but did not actually rape the child, and that she had only returned with her daughter to the hospital because DCFS was on her back.
A vaginal examination of the prosecutrix by a doctor at the hospital showed no lacerations, no tears, no arrhythmia, and no old scars. Her hymen was only slightly open and not very irregular.
DCFS investigated the prosecutrix' complaint and concluded that the allegations were unfounded. The results of the investigation were included in a written report that was destroyed before trial in compliance with a State statute requiring that all reports of allegations determined unfounded be destroyed.
Defendant now appeals, and raises four issues for review: (1) that defendant was denied due process and the right to present a defense where exculpatory evidence was destroyed; (2) that defendant was convicted of an offense distinct from that with which he was charged; (3) that the court did not have evidence of any sexual conduct other than criminal sexual assault; and (4) that defendant was improperly sentenced.
Defendant first argues that he was denied due process and his right to present a defense because DCFS destroyed the written report of his case. Defendant contends that because the prosecution and DCFS are both arms of the State, the prosecutor's failure to produce the destroyed report constitutes a suppression of evidence favorable to defendant under Brady v. Maryland (1963), 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194. In Brady, the defendant asked the prosecution to allow him to examine extra-judicial statements made by his cofelon, who was to be tried in a separate trial. Several statements were shown to him, but the prosecution withheld one statement in which the cofelon admitted to the actual homicide. Brady did not know of the statement until he had been convicted and sentenced and his conviction had been confirmed. The United States Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. 83, 87, 10 L. Ed. 2d 215, 218, 83 S. Ct. 1194, 1196-97.
We disagree with the defendant that destruction of the DCFS report by DCFS constituted such a suppression of evidence. Supreme Court Rule 412 requires the State to "disclose to defense counsel any material or information within its possession or control which tends to negate the guilt of the accused as to the offense charged" and to "ensure that a flow of information is maintained between the various investigative personnel and its office sufficient to place within its possession or control all material and information relevant to the accused and the offense charged." (87 Ill. 2d Rules 412(c), (f).) However, "knowledge of the physical examination of the complainant by DCFS, a non-investigative governmental body, will not be imputed to the State. Without knowledge of the examination or possession of its results, the State cannot be found to have suppressed the material." (People v. Visgar (1983), 120 Ill. App. 3d 584, 590, 457 N.E.2d 1343.) We will not impute the behavior of DCFS to the State's Attorney, and we agree with the trial court that no Brady violation occurred. Here, where defendant could have called the DCFS investigator, Mr. Ott, to testify, especially after the court offered, "if it becomes necessary that Mr. Ott is to be a witness in this ...