APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION
513 N.E.2d 1032, 160 Ill. App. 3d 983, 112 Ill. Dec. 423 1987.IL.1303
Appeal from the Circuit Court of Cook County; the Hon. Howard M. Miller, Judge, presiding.
PRESIDING JUSTICE SCARIANO delivered the opinion of the court. HARTMAN and BILANDIC, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCARIANO
Defendant-appellant Calvin Winfield was charged with eight counts of criminal sexual assault, four counts of aggravated criminal sexual assault, six counts of aggravated criminal sexual abuse, and one count of unlawful restraint arising from the alleged sexual molestation of his six-year-old daughter, C.B. After a bench trial, the Judge found Winfield guilty of three counts of aggravated criminal sexual abuse, a Class 2 felony, but acquitted him of the remaining 16 counts of the indictment. The three counts were merged into one, and Winfield was sentenced to five years' imprisonment thereon.
On appeal, Winfield presents the following issues for review: (1) whether the trial Judge rendered legally inconsistent verdicts; (2) whether the statute under which the trial court received C.B.'s preliminary hearing testimony as substantive evidence was constitutional; (3) whether the trial court erred when it allowed the hearsay testimony of a nurse who treated C.B. approximately 24 hours after the alleged attack; (4) whether Winfield was proved guilty beyond a reasonable doubt; (5) whether Winfield's right to counsel was violated when the trial court denied his motion for a continuance to substitute counsel; and (6) whether the State failed to prove an element of the offense, i.e., that Winfield was over 17 years old. We affirm.
After being qualified as a witness, C.B., a seven-year-old at the time of trial, testified that she had lived in a one-bedroom apartment with Winfield, her mother, and her sister. There were two beds, and she and her sister slept separately from their parents. C.B. related at trial that on April 1, 1985, she watched T.V. for some time before going to bed, and that nothing happened that night. She asserted that her testimony at the preliminary hearing that Winfield sexually attacked her was nothing but lies. C.B. claimed she got the idea to fabricate this story from "Star," a friend of hers in California.
Over a defense objection, the State was permitted to read into the record as substantive evidence C.B.'s preliminary hearing testimony, which she had given on April 4, 1985. C.B. had testified at that time that on April 1, while her sister and mother slept, Winfield ordered her to join him in his bed, but told her to be quiet so as to not wake the others. C.B. recalled that she initially stayed in her own bed and observed Winfield take the blanket off himself. At this point, he asked her, "[You] want to do nothing?" to which she replied, "I don't know if I want to do it or not." She then went to his bed as directed and told him that she "was scared to do it." Winfield told her that she did not have to be scared, and he proceeded to remove his underpants. He instructed C.B. to remove her underpants as well, and she complied. According to the account she gave at the preliminary hearing, C.B. then laid down on her back while Winfield put his "D" in her "poo-poo," and she saw "white stuff" come out of his "D" and get on her thighs and legs.
Debra Conti was employed as a nurse at South Chicago Hospital. Over defense objections, she testified that at approximately 5:30 p.m. of the day after the alleged incident, C.B.'s mother brought the child to the emergency room for the purpose of treatment for sexual abuse. C.B. told Conti at this time that Winfield had "touched her with his 'D'" the previous night, and she pointed to her vaginal and chest areas. Conti asked C.B. if she had gotten any "white stuff" on her body, and she replied that she had some on her legs and vaginal area. The results of a subsequent physical examination of C.B. showed an absence of spermatozoa. Moreover, C.B.'s hymen was intact, her body was not bruised in any way, and her vagina showed no indications of physical trauma. However, Conti testified that C.B. had bathed and urinated before arriving at the hospital.
C.B. and Nurse Conti were the only witnesses at the trial. After considering their testimony, the Judge found Winfield guilty of only the three counts of criminal sexual abuse delineated in counts 7, 8, and 17, specifically stating that the State failed to prove the element of "penetration" alleged in the counts on which he was found not guilty. Counts 8 and 17 were merged with count 7, and Winfield was sentenced to five years' incarceration based on the charge presented therein.
The trial Judge also declared that he believed that C.B. recanted her preliminary hearing testimony "as a result of influence from both the mother and father." Winfield's counsel did not object to or request that the Judge explain the basis for his finding of parental coercion. Furthermore, at the sentencing hearing, the Judge stated:
"I will add this for the record too. That after having this hearing in evidence on the matter, I believed the evidence that was submitted by way of the preliminary hearing transcript as to the victim's prior testimony, and from my personal observations in this court of the conduct of the defendant and the victim's mother, I believe that the victim was intimidated and coerced to repudiate and refute the testimony that she had given in the preliminary hearing. So, I believed the preliminary hearing; I did not believe what she testified to in the court room because of those factors of personal observation in this court room."
The defendant also failed to object to these remarks. I Legally inconsistent verdicts have been defined as follows:
"Verdicts of guilty of crime A but not guilty of crime B, where both crimes arise out of the same set of facts, are legally inconsistent when they necessarily involve the Conclusion that the same essential element or elements of each crime were found both to exist and not to exist." (People v. Murray (1975), 34 Ill. App. 3d 521, 531, 340 N.E.2d 186.)
Contrary to Winfield's assertion, however, a legally inconsistent verdict in a bench trial is not reversible error per se. Rather, this court has held:
"Inconsistency is only one element to consider in determining the existence of proof beyond a reasonable doubt. When, as in the present case, there is a rational explanation for the inconsistent finding other than confusion, the inconsistency will not contribute to a determination that defendant was not proved guilty beyond a reasonable doubt." (People v. O'Malley (1982), 108 Ill. App. 3d 823, 833, 439 N.E.2d 998.)
With these standards in mind, we may now consider the substance of Winfield's contention.
He first contends that his acquittal on count 4 was inconsistent with his conviction on counts 7 and 8. These counts read as follows:
"Calvin Winfield committed the offense of criminal sexual assault in that he committed an act of sexual penetration, to wit: sexual intercourse with who was under 18 years of age when the act was committed and Calvin Winfield was a family member to wit: father, in violation of chapter 38, section 12 -- 13 -- A(3) . . .." (Emphasis added.)
"Calvin Winfield committed the offense of aggravated criminal sexual abuse in that he committed an act of sexual conduct, to wit: sexual intercourse with , who was under 18 years of age when the act was committed, and Calvin Winfield was a family member, to wit: her father, in violation of chapter 38, section 12-16. . .." (Emphasis added.)
"Calvin Winfield committed the offense of aggravated criminal sexual abuse in that he, a person over 17 years of age, committed an act of sexual conduct, to wit: sexual intercourse with , a person under 13 years of age, in violation of chapter 38, section 12 -- 16(c)(1) . . .." (Emphasis added.)
According to Winfield, these verdicts are inconsistent because by finding him not guilty on count 4, the trial Judge implicitly made a factual determination that the State did not prove beyond a reasonable doubt that he had "sexual intercourse" with C.B., and since counts 7 and 8 charge that same fact, the convictions on those counts must be reversed.
Winfield also asserts that the finding of guilty on count 16 was inconsistent with innocense on ...