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06/02/87 the People of the State of v. Rebecca Margaret Born

June 2, 1987





509 N.E.2d 125, 156 Ill. App. 3d 584, 108 Ill. Dec. 699 1987.IL.736

Appeal from the Circuit Court of Macon County; the Hon. Robert J. Steigmann, Judge, presiding.


JUSTICE GREEN delivered the opinion of the court. SPITZ, P.J., and LUND, J., concur.


Following a trial by jury, defendant Rebecca (Becky) Born was found guilty as charged of aggravated criminal sexual abuse in violation of section 12-16(c)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 12-16(c)(1)). The circuit court of Macon County sentenced defendant to four years' probation, including intensive probation with conditions during the first year. One of those court-ordered conditions required defendant to serve five months in the county jail.

Defendant has appealed both her conviction and her sentence, contending that: (1) the minor victim, 4 years and 11 months old at time of trial, was incompetent to testify as a witness; (2) the proof did not support a finding of guilty beyond a reasonable doubt of aggravated criminal sexual abuse; (3) the court below improperly excluded testimony depicting hostility within the defendant's family purportedly culminating in the charging of this offense; (4) the court's decision to tender the State's proffered jury instructions, and not those submitted by the defendant, was error; and (5) sentencing the defendant to five months' incarceration represents an abuse of discretion.

Defendant was charged by information filed March 3, 1986, with aggravated criminal sexual abuse for an incident allegedly occurring on September 14, 1985. Specifically, defendant was accused of committing an act of sexual conduct with K.T., a minor then under the age of 13, when defendant "knowingly touched with her finger the vagina of , for the purpose of the sexual arousal of the defendant."

Criminal sexual abuse is committed if an accused performs an act of "sexual conduct" with another. (Ill. Rev. Stat. 1985, ch. 38, par. 12-15.) "Sexual conduct" is defined as:

"[Any] intentional or knowing touching . . . by the . . . accused, either directly or through clothing, of the sex organs, anus or breast of the victim . . ., or any 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).

By statute, the offense of criminal sexual abuse becomes aggravated if: "[The] accused was 17 years of age or over and commits an act of sexual conduct with a victim who was under 13 years of age when the act was committed . . .." (Ill. Rev. Stat. 1985, ch. 38, par. 12-16(c)(1).) The minor victim K.T. was born on August 29, 1981; she was therefore four years old on September 14, 1985, the date of the alleged incident. Defendant was 22 years old at the time.

Defendant first contends the trial court's finding of competency in allowing the minor complainant to testify as a witness was error. The question of a minor witness' competency is for the trial court, and its competency ruling will not be disturbed absent an abuse of discretion or misapprehension of some legal principle. (In re A.M.C. (1986), 148 Ill. App. 3d 775, 778, 500 N.E.2d 104, 106.) Any such competency determination must be based upon preliminary inquiry into the minor witness' intelligence, understanding and moral sense. People v. Davis (1957), 10 Ill. 2d 430, 140 N.E.2d 675.

Rather than relying strictly upon a child's age, it is instead recognized that competency of a minor to testify will be determined by the degree of intelligence actually exhibited. (People v. McNichols (1986), 139 Ill. App. 3d 947, 951, 487 N.E.2d 1252, 1255.) To determine an individual minor's intelligence, a court should consider whether he or she is sufficiently mature to: (1) receive correct impressions from his or her senses; (2) recollect those impressions; (3) understand questions and narrate answers intelligently; and (4) appreciate the moral duty to tell the truth. People v. Sanchez (1982), 105 Ill. App. 3d 488, 492, 434 N.E.2d 395, 398; see also People v. Ballinger (1967), 36 Ill. 2d 620, 622, 225 N.E.2d 10, 11-12.

Defendant argues there was not sufficient inquiry below into the child's appreciation of her moral duty to tell the truth. Defendant complains the trial court merely elicited yes or no answers from the minor in response to lengthy questioning without sufficient inquiry into what the minor thought an oath was or what she thought would happen if she did not tell the truth.

From our review of the record, we find the trial court did not abuse its discretion in allowing the minor witness to testify. Upon initial questioning by the court, the minor was able to identify: the name of the school her older brother was attending; the fact that he was on summer vacation at the time of trial; the name of the school she would be attending in the fall; the names of her teachers at preschool the previous year; the names of children she was attending preschool with; and the name of her favorite game at preschool. She also knew the name of her puppy, what kind of dog it was (a Cockapoo), and that her parents owned two blue Mazda automobiles. She specifically related the name of the street her grandparents live on and that her father works for the health department in Decatur.

Responding to further questioning, the minor replied she understood the difference between the truth and a lie, answering that a lie is a "bad thing." She also affirmatively answered she would be prepared to take an oath to respond to questions truthfully, and she understood it was important to do so. K.T. also indicated to the court she would be able to say things about what she did and said, and not what another person might have told her to say.

The court also asked her:

"THE COURT: What is important, , is that you answer the questions truthfully. Do you know what that means?

A. No.

THE COURT: Well, do you know what it means to tell the truth and what it ...

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