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03/16/88 the People of the State of v. Daniel Robertson

March 16, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

DANIEL ROBERTSON, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

522 N.E.2d 239, 168 Ill. App. 3d 132, 118 Ill. Dec. 784 1988.IL.370

Appeal from the Circuit Court of Cook County; the Hon. Frank W. Meekins, Judge, presiding.

Rehearing Denied April 29, 1988.

APPELLATE Judges:

JUSTICE STAMOS delivered the opinion of the court. HARTMAN, P.J., and BILANDIC, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STAMOS

Following a bench trial in the circuit court of Cook County, defendant Daniel Robertson was convicted of criminal sexual assault and aggravated criminal sexual abuse (Ill. Rev. Stat. 1985, ch. 38, pars. 12-13, 12-16). The trial court sentenced defendant to a term of 10 years for criminal sexual assault and a concurrent five-year term for aggravated criminal sexual abuse. On appeal, defendant contends that (1) the trial court committed plain error in admitting testimony regarding the victim's pretrial statements; (2) the uncorroborated testimony of the victim was not clear and convincing; (3) defendant was denied effective assistance of counsel; (4) the limitation on probation contained in section 5-5-3 of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, pars. 1005-5-3(c)(2), (e)) is unconstitutional; and (5) the sentence imposed was excessive.

The evidence presented at trial established that on November 23, 1984, John Ruberti, a United States Postal Inspector, was investigating the use of the mail to distribute child pornography, when he intercepted an application for an advertisement made by defendant which stated that he had 40 preteen magazines to sell for $500. One month later, United States Postal Inspector Ralph Truitt (Agent Truitt) acted as an undercover agent and responded to the advertisement by sending a check in the amount of $500 to defendant. Shortly thereafter, Agent Truitt received three parcels containing child pornography magazines and advertising brochures. Federal agents executed a search warrant for defendant's residence and advised defendant of his constitutional rights. In subsequent questioning defendant acknowledged that during August and September of 1984 he had been with the victim N.S. in the basement of her parent's home. Defendant stated that in the process of wrestling and playing with her, he had fondled her vagina. After speaking with defendant, the agents searched his home and found two European child pornography magazines which defendant had received that day.

The next day defendant spoke with the victim's father, who was one of his co-workers, and arranged a meeting with him and his wife. That night defendant informed the victim's parents that he had fondled their daughter's vagina while playing with her in their home. Defendant stated his behavior was due to psychiatric problems for which he was receiving treatment.

The victim's parents contacted the police and two youth officers came to the victim's home to investigate the incident. The officers brought male and female anatomically correct dolls which the victim's mother testified were used by the victim to demonstrate what had been done to her. She stated that the victim pulled up the dress on the female doll and put her finger in its "private."

The victim was eight years old at the time of trial and was found competent to testify. She testified that on one occasion when defendant stayed at her house overnight, he came up to her bedroom, carried her downstairs to the living-room couch and put his finger in her "private." She demonstrated this occurrence on the anatomically correct doll during her trial testimony.

Defendant testified in his own behalf that he remembered staying overnight at the victim's residence. He stated that the victim woke up early one morning and came downstairs, but that he told her to go back to her room. He then told the victim she could come back downstairs, and he allowed her to get into bed with him. According to defendant, he started playing with her and tickling her, and in the process he touched her vaginal area. Defendant denied placing his finger or any other object or part of his body into her vagina. However, he did admit fondling the victim on five or more occasions.

A physical examination of the victim was conducted by Dr. Dinesh Saraiya. It revealed that the victim's vaginal orifice was slightly enlarged although there were no bruises, abrasions, ulcerations or visible injuries. I

Defendant first contends that the trial court committed plain error in considering testimony regarding the victim's pretrial statements. Defendant claims that the victim's statements and demonstrations were offered to show how defendant committed the sexual offenses in question, and this evidence ...


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