APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
507 N.E.2d 1342, 155 Ill. App. 3d 348, 108 Ill. Dec. 1 1987.IL.592
Appeal from the Circuit Court of Lake County; the Hon. Fred A. Geiger, Judge, presiding.
JUSTICE WOODWARD delivered the opinion of the court. HOPF and DUNN, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOODWARD
After a bench trial, the defendant, Roberto Campos, was found guilty of aggravated criminal sexual assault and two counts of aggravated criminal sexual abuse. The trial court sentenced the defendant to an extended term of 60 years in prison.
On appeal, the defendant raises five issues for review: (1) whether the defendant was proved guilty beyond a reasonable doubt; (2) whether the trial court failed to properly determine the competency of the minor complainant; (3) whether the defendant's right to cross-examine adverse witnesses was improperly curtailed; (4) whether an extended-term sentence was improper because the same factor, complainant's age, was twice used to enhance the offense; and (5) whether the aggravated criminal sexual assault and aggravated criminal sexual abuse statutes are unconstitutional.
Dennis Bucksten was the complaining witness in this case. He testified that he was a member of the Big Brothers organization. Beginning in May 1984 he became the adult sponsor of the minor complainant in this action, Jerome Hermann, a/k/a Jay. In January 1985, Jay lived in North Chicago with his mother, Donna, and his 15-year-old sister, Margaret. On Saturday, January 26, 1985, Bucksten arrived at the Hermann residence at about 7 p.m. but found no one home. Mrs. Hermann worked Saturday nights. He went to the children's grandmother's home, but was told they were supposed to be at their apartment. Late that night he learned from their grandmother that Margaret and Jay had eventually returned home. The next afternoon Bucksten returned and demanded to know where Jay had been. On cross-examination, Bucksten revealed that Margaret and Jay had told him that they had been with a man called Joe at his place. Joe was subsequently identified as the defendant. They knew Joe, having met him on former occasions at the laundromat across the street. They told Bucksten they had been with Joe on other occasions. Jay also related that Joe would become angry if he did not agree to see him again. Bucksten subsequently phoned the North Chicago police.
Margaret Hermann testified that she was presently living with foster parents in Great Lakes. Previously she had lived with her mother and brother, Jay, in North Chicago. She knew a man named Joe and identified him as the defendant. She had met him before Christmas 1984 at a laundromat. She said defendant was with a heavy-set lady and four children. She stated that she and Jay later saw defendant at an arcade. They became friendly and went to his home on Saturdays while their mother was at work and after Jay's Big Brother dropped him off. Margaret testified that on their third visit to Joe's apartment, Margaret asked Joe for some money to go downstairs and play the video games. Jay remained upstairs with defendant until Margaret returned one-half to one hour later. She said she called out before coming up since the door to Joe's apartment was locked. The two went to Joe's every Saturday until Dennis Bucksten stopped the visits. On cross-examination, Margaret said that they did not go every Saturday, but were at Joe's two to three Saturdays. Later she agreed that Jay was at Joe's on approximately 10 Saturdays. Jay told Margaret that when he was alone he would just talk or eat with defendant. He never told Margaret about any sexual abuse or said that Joe threatened him to coerce him to continue coming to his apartment every Saturday. On cross-examination Margaret said that she had lied when she told the North Chicago police that Joe had told her to get undressed. She said she told the police such a lie because she "wanted [the defendant] to get in more trouble" because of what he supposedly did to her brother.
Jay Hermann stated that he was 11 years old and lived with his aunt and uncle in Alabama but had previously lived in North Chicago when his mother was living. He knew a man named Joe and identified him as the defendant. They had met at a laundromat with a chubby lady and some children. He saw the defendant again on the next Saturday with his sister, Margaret. Defendant gave Margaret money, and she went downstairs. Jay said that the defendant asked him to lie on the bed and that Jay undressed and complied.
On direct examination, Jay was given two anatomically correct dolls, one a mature male, and the other a juvenile male, on which he demonstrated how defendant lay on him and said that he had gotten a red hickey from the defendant. Defendant also was allegedly "tongue twist kissing" him. Jay said that the defendant's "dick" was hard and he wanted Jay to rub it. This episode ended when Margaret called from the base of the stairway, outside of the defendant's apartment, that she was coming back up. She had to call up because the entrance to the stairway was locked, and she had to be let in. When she called, Jay testified they both dressed and then let Margaret back in.
The two returned the next Saturday and Jay testified that the same thing happened. Additionally, after a repeat of the same acts, the defendant lay on Jay's back. Jay testified he "put his dick in my butt." On this occasion defendant asked Jay if he ever had "milk dripping." Jay said that he had "liquid come out dripping down his leg." Defendant wiped it off with his shirt. Jay stated he did not know what it was. When defendant got in the shower, naked, he asked Jay if he wanted his back scrubbed. Jay declined. Jay said he told Dennis Bucksten that he had been at Joe's on one Saturday subsequent to his having been instructed not to go back there. Jay testified that the defendant asked him if Jay loved him. At one time Jay had to "suck defendant's dick." Jay stated that the defendant did the same to him first.
On cross-examination, Jay related that at defendant's apartment, he had seen the boys and the chubby woman who had been with Joe at the laundromat. Jay estimated the amount of time he spent alone with defendant as 20 to 25 minutes the first Saturday and 30 to 40 minutes on other occasions. Jay estimated that he had been at defendant's home more than three times and had always gone there with his sister, Margaret.
David Rockingham, Sr., a police detective, testified that Jay had told him that defendant had fondled and kissed him, rubbed his neck, and asked Jay to suck his penis, which Jay did. Defendant on another occasion got on top of Jay and tried to penetrate him. Jay told the officer he did not know if he succeeded, but he was in pain.
Officer Rockingham testified that, on February 5, 1985, accompanied by Detective Phelps, he went to defendant's apartment to serve a warrant on and to arrest the defendant. Defendant signed the acknowledgement and waiver of rights form. Upon arriving at the police station, the officers questioned the defendant about his relationship with Jay. Officer Rockingham left the room while Phelps spoke with defendant, then returned to the room after approximately 10 to 15 minutes. Defendant repeated his statement to Officer Rockingham with Officer Phelps still present. Officer Rockingham stated that defendant told him that Jay and his sister had visited defendant's apartment and that he had given Margaret money to go down below defendant's apartment to an arcade. Defendant stated that he had Jay sit on his lap, and he rubbed Jay's inner thighs and back. Later Margaret called him from below and the two left. On another occasion defendant gave Margaret money to go down and ...