APPELLATE COURT OF ILLINOIS, THIRD DISTRICT
515 N.E.2d 467, 162 Ill. App. 3d 430, 113 Ill. Dec. 658 1987.IL.1635
Appeal from the Circuit Court of Henry County; the Hon. Susan B. Gende, Judge, presiding.
PRESIDING JUSTICE BARRY delivered the opinion of the court. WOMBACHER and HEIPLE, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BARRY
Defendant, Terrance Warren, was indicted for two counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12-14(b)(1)). The victims of the alleged offenses were defendant's two nephews, ages six and four. Following a bench trial, the court found defendant guilty of the count respecting the six-year-old and not guilty of the count charging the same offense against the four-year-old. Defendant was sentenced to serve six years in the Department of Corrections.
Defendant appeals from his conviction on the ground that the trial court erred in granting the State's motion in limine to preclude evidence of the victims' sexual activity with a cousin. Because the sufficiency of the evidence to convict is not directly in issue, the facts of this case may be briefly stated. We shall refer to the victim as "J.H." (the six-year-old) and "his brother" (the four-year-old).
At trial, the victims' paternal grandmother testified that she was baby-sitting the children in late February 1986, and reading them a book entitled, "It's O.K. to Say No!" The book contained stories about personal safety for children. One of the stories concerned an uncle who had touched a little girl in a way that made her uncomfortable. The grandmother said that when she read this, J.H. "popped up" and exclaimed that that was what Uncle Terry and Uncle Doug did all the time. Upon further inquiry, J.H. told her that the uncles had sucked his "peepee," punched him in the stomach and done other bad things to him. J.H.'s brother told her that the same things were done to him.
The matter was reported to the Kewanee police for investigation of the charges. Using anatomically correct dolls, Department of Children and Family Services investigator Doug Klein asked J.H. to demonstrate what had been done to him. J.H. indicated that, in addition to sucking on J.H.'s penis, defendant had penetrated him anally. J.H. said that "it hurt like a nail." According to Officer Joe Cervantez, who accompanied Klein during the interview, J.H. also stated that on one occasion he had urinated in defendant's mouth and on another defendant had rubbed his penis on J.H.'s penis. In a separate interview, his brother denied that he had been sexually molested by either of his uncles.
During the grand jury investigation of the charges, testimony was elicited from defendant, his mother and the victims' father concerning the victims' exposure to sexual conduct. According to these witnesses, a seven-year-old cousin, Timmy, had pulled his pants down and told J.H. to look at his penis. The conduct was reported to Timmy's mother, but Timmy denied any wrongdoing. According to defendant, the children were also caught together in the bedroom with no clothes on. Prior to trial, the State moved to bar presentation of J.H.'s exposure to sexual conduct with his cousin pursuant to the rape shield statute (Ill. Rev. Stat. 1985, ch. 38, par. 115-7). Relevant portions of the transcript of the grand jury proceedings were attached to the motion as an exhibit. Over defendant's objection, the motion was granted.
At trial, J.H. was determined by the court to be competent to testify. He testified that his uncles Terry and Doug sucked his "peepee" and his brother's while the children were being babysat at the Warren home and at their own home. He also stated that defendant had put his "peepee" in J.H.'s "butt" and that it felt "weird." J.H. denied that he had told anyone that he had urinated in defendant's mouth or that he had rubbed penises with defendant. J.H.'s brother was not called to testify in court.
It was further established that J.H. was withdrawn during the period prior to February 1986. He experienced stomach aches and would not speak at kindergarten. Both children had suffered from nightmares. Counselling was provided as a result of the report of molestation, and by the time of trial it appears that both children were responding normally.
Defendant initially denied any wrongdoing. However, following a polygraph examination, defendant agreed to give a statement to the police acknowledging that he had placed his mouth on the penises of both children. After his arrest, defendant retracted the statement and refused to sign a typed copy of it. He testified at trial that he had been intimidated by the polygrapher, told what to say by the police and had not read or understood his rights prior to making admissions. Defendant theorized at trial that the accusations against him were fabricated by the victims' father and their paternal grandmother in retaliation for their father's failed ...