APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
506 N.E.2d 321, 153 Ill. App. 3d 710, 106 Ill. Dec. 614 1987.IL.353
Appeal from the Circuit Court of Champaign County; the Hon. Robert J. Steigmann, Judge, presiding.
Justice Green delivered the opinion of the court. Lund and Knecht, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GREEN
On April 15, 1986, following a jury trial in the circuit court of Champaign County, defendant, Michael Durkin Taylor, was convicted of an aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12-14(b)(1)) upon S.A., a female child seven years of age, and the aggravated criminal sexual abuse (Ill. Rev. Stat. 1985, ch. 38, par. 12-16(c)(1)) of S.A. and A.B., also a female child seven years of age. The jury acquitted defendant of a charge of aggravated criminal sexual assault of A.B. The court then sentenced defendant to concurrent terms of imprisonment of 25 years for the assault offense and 7 years each for the abuse offenses. Defendant has appealed. We reverse and remand for a new trial.
Defendant contends that the evidence was insufficient to support the verdicts and makes numerous claims of error in support of his request for a new trial. We find the issue of the sufficiency of the evidence to be a close question but hold the evidence to be strong enough to support the verdicts. However, we conclude that an error in the admission of evidence and improprieties in the closing argument of the prosecutor require the grant of a new trial. We will discuss other issues involving claims of error only to the extent that they are likely to again arise at retrial.
In regard to each offense for which defendant was convicted, we will first discuss separately whether the jury could properly have found that charge to have been proved beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) Accusations that a person has committed sexual offenses of the type charged against defendant have been described as being "easily made, hard to be proved, and harder to be defended by the party accused." (People v. Nunes (1964), 30 Ill. 2d 143, 146, 195 N.E.2d 706, 707.) Accordingly, the rule has been established that, in order for the proof of guilt to pass muster on review, the testimony of the person making the accusation must be clear and convincing or substantially corroborated. (People v. Morgan (1977), 69 Ill. 2d 200, 206, 370 N.E.2d 1063, 1066; People v. Kolden (1962), 25 Ill. 2d 327, 329, 185 N.E.2d 170, 171.) We find the testimony of the complainants here to fail to meet the clear-and-convincing test but find their testimony to have sufficient substantial corroboration to support the convictions.
Section 12-13(a)(1) of the Criminal Code of 1961 (Code) provides that a person commits criminal sexual assault if he or she "commits an act of sexual penetration by the use of force or threat of force." (Ill. Rev. Stat. 1985, ch. 38, par. 12-13(a)(1).) By the terms of section 12-14(b)(1) of that Code, such an assault becomes an aggravated one if the accused is 17 years of age or older and the victim is under 13 years of age at the time of the offense. (Ill. Rev. Stat. 1985, ch. 38, par. 12-14(b)(1).) Section 12-12(f) of that Code includes within the definition of the phrase "sexual penetration," "any contact, however slight, between the sex organ of one person" and that of another. (Ill. Rev. Stat. 1985, ch. 38, par. 12-12(f).) Section 12-16(c)(1) states that aggravated criminal sexual abuse has occurred when an accused, 17 years of age or older, "commits an act of sexual conduct with a victim" under 13 years of age at the time of the offense. (Ill. Rev. Stat. 1985, ch. 38, par. 12-16(c)(1).) Section 12-12(e) of that Code includes within the definition of "sexual conduct" any act of the accused whereby he or she intentionally or knowingly fondles or touches, "directly or through clothing" a "part of the body of a child under 13 years of age, for the purpose of sexual gratification or arousal of the victim or the accused." Ill. Rev. Stat. 1985, ch. 38, par. 12-12(e).
With the foregoing definitions in mind, we examine the record upon which the three convictions of defendant were based. Most background information is undisputed. During the fall and early winter of 1985, defendant, an adult, was in his first year as a teacher of physical education, coach, and supervisor of recess at the public grade school at Thomasboro in Champaign County. The complainants, S.A. and A.B., were 7-year-old girls attending the second grade at that school and were in a class which defendant taught in the gymnasium of the school from 1:35 p.m. to 2:11 p.m. each day. Defendant had an office on the stage in the gymnasium and the three offenses were alleged to have occurred in the office or on the stage.
The substance of S.A.'s testimony was as follows. After physical education classes, she and her classmates lined up and walked to their next class except when she was "helping" defendant put away gym equipment in his office. Sometimes this caused her to be late for her next class. Once, while A.B., S.A., and another girl, S.K., were present in the office, defendant touched "down in [her] private area." (Her testimony appeared to indicate that defendant had told the three girls to put a jump rope between their legs and then touched them between the legs in showing them where to put the rope.) On another occasion, the three girls were asked into defendant's office to "look for a blue jay," which S.A. and S.K. did while defendant was "doing stuff" to A.B. (S.A. described "doing stuff" as defendant's pushing A.B. against a door.) On another occasion, defendant pushed S.A. onto a floor mat, told her to pull down her pants and underwear, which she did under threat of being beaten. Defendant then pulled his pants partly down in front and put his "private" in her "private." This hurt and she tried to push him off. She finally kicked him and got up, pulled her pants up halfway and ran to the bathroom.
S.A. further testified to the following. Upon arrival at the bathroom, she checked her "private area" and found it to be wet and bloody. She told nobody about it because defendant had threatened to harm her if she did. On another occasion, defendant had asked her to touch his "private area" with her hand but she refused. She described her "private" as being the area between her legs. Later, she told law-enforcement officers Whitehill, Pope, and Doty about incidents that had happened to her and also talked to Dr. Buetow about those incidents. However, she had not talked about these events to other children or with her classroom teacher. She told the school principal once that defendant had ripped off her necklace, but she said the principal did not believe her.
A.B. testified that she and S.A. were close friends and agreed that they occasionally assisted defendant in putting equipment away after class. A.B. asserted that defendant several times requested them to pull up their shirts, unbutton their pants and pull them down, but they refused. She also said that once defendant pulled her pants down and put his finger inside her "private." She also testified that on another occasion, she and S.A. went to the principal and complained that defendant was requiring them to pull their pants down, but the principal refused to believe them. A.B. stated that on other occasions defendant had touched her between the legs while she had her pants on. On cross-examination, A.B. contended that she and S.A. ran to the principal's office to tell him that defendant was putting his finger into them, but the principal refused to believe them. A.B. described talking to Mr. Pope and Mr. Doty about the incidents that had happened and also telling her mother that she no longer wanted to go to school.
Dr. Kathleen Buetow, a pediatrician at the Carle Clinic in Urbana, was called by the State. She explained that she had devoted a substantial study to matters of child abuse and in the previous six years had been involved in approximately 100 cases per year. Dr. Buetow testified that on December 19, 1986, she interviewed S.A. in the presence of a caseworker from the Illinois Department of Children and Family Services and a social worker from her clinic. Previously, S.A.'s mother had told the doctor that S.A. had said that her vagina had been penetrated, and she was suffering vulvar pain. Dr. Buetow said she questioned S.A. concerning the episode which S.A.'s mother had described and was careful to avoid leading or suggestive questions. She also said that she supplied S.A. with anatomical dolls to use to illustrate what had happened. According to Dr. Buetow, S.A. said defendant had placed his "you know what" into her vaginal area and placed the dolls into the position she described. S.A. also told how she ran from defendant's office to the bathroom and upon examining herself, found blood on her underwear. Mention was also made by the doctor that S.A. told her of other unsuccessful attempts by defendant to penetrate her vagina. Dr. Buetow stated that from her physical examination of S.A., she found no objective evidence of any penetration of S.A.'s vagina but that the very slight penetration described could have taken place with some bleeding and healed in a few days.
Next, Dr. Buetow described her examination of S.A. and explained that she placed a swab in S.A.'s vaginal area and S.A. spontaneously told her when the swab was penetrating as far as defendant had done. According to Dr. Buetow, S.A. said that point was reached just as the swab was placed at the opening of the vaginal canal. The doctor said that the examination revealed no abnormalities, and she was of the opinion that if S.A. had been penetrated by an adult male penis to the slight extent penetrated by the swab more than three to five days previously, bleeding would have resulted but healing would have taken place by the time of the examination. Thus, Dr. Buetow was not able to determine from her observation of the condition of S.A.'s vagina alone as to whether S.A.'s version of defendant's alleged assault was accurate. However, the doctor found nothing in S.A.'s physical condition which was inconsistent with her story.
The rest of the State's witnesses testified only briefly. Evidence was presented to show the size of the gymnasium and the relation of defendant's office to the gymnasium. Two classmates of the victims stated that defendant did have members of the class aid him in putting away equipment after class and that these people were often late to their next class. Another schoolmate testified she had seen defendant touching S.A. between her legs while they were on the stage. Another said she had seen S.A. in defendant's office with her pants down. A.B.'s mother testified that A.B.'s behavior had changed during the fall of 1985 and that she had indicated she did not want to go to school. The mother further testified that in December 1985, A.B. told her what defendant was doing to her at school. She said she repeated the incident to school authorities, and a meeting was held on the subject at the school on December 12, 1985, which defendant attended. According to A.B.'s ...