APPELLATE COURT OF ILLINOIS, THIRD DISTRICT
523 N.E.2d 368, 169 Ill. App. 3d 785, 119 Ill. Dec. 760 1988.IL.650
Appeal from the Circuit Court of Tazewell County; the Hon. John A. Gorman, Judge, presiding.
JUSTICE SCOTT delivered the opinion of the court. HEIPLE and BARRY, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCOTT
In bringing the instant appeal, Fisher first contends that the trial court erred in denying his motion in limine, thereby allowing the victim's mother and the attending emergency room nurse to testify as to inculpatory statements made to them by the victim, a 35-month-old female. Secondly, defendant contends that he was not proved guilty beyond a reasonable doubt given the sole evidence that the offense occurred came from the child's hearsay statements admitted through the testimony of the two adults, as the child was determined incompetent to testify. Lastly, Fisher contends that the prosecutor made statements in his closing argument of an inflammatory and prejudicial nature which appealed to the jury's prejudice and fears and which encouraged them to reach a verdict based on matters not in evidence. We affirm.
The evidence adduced at trial established that on March 31, 1987, Deborah Hamilton, the child's mother, left her daughter with her brother, David A. Fisher, for approximately two hours while she had a doctor's appointment. Fisher had begun baby-sitting for his niece in January 1987. Following her appointment, Hamilton returned to Fisher's house and visited with Fisher for about 20 minutes before taking her daughter home. During their visit the child was stated to have been acting normally.
Later that evening, between 6 and 6:30 p.m., the victim came out of her room with her clothes off and told her mother that she had wet her pants and that her "pee-pee" hurt. Following questioning by her mother, the child pointed to her vagina and clitoris and stated that her Uncle David had licked and smelled her vagina, and that her Uncle David had gotten a knife and stuck it in her vagina. The child made thrusting motions against the chair to show her mother what took place thereafter. Upon examination of the child's vaginal area, the mother noticed redness but did not see any cuts, abrasions or swelling. At trial the mother could not state with certainty whether the redness or physical condition observed that evening differed in marked degree from other occasions when the child had wet her pants, as she noticed redness also occurring on those occasions.
Following their conversation the mother took the child to the emergency room at Pekin Memorial Hospital, arriving at about 8 or 8:30 p.m. A physical examination of the child was performed, including an oral and vaginal smear and swab. The latter tests were examined by the State of Illinois Department of State Police and found to contain no seminal material or spermatoza. Emergency room nurse Cheryl Boo testified she was present during the physical examination and saw no redness, cutting or bruising of the vaginal area. Prior to conversing with the child, Boo stated she was told by Hamilton that she believed the victim had been sexually molested by her uncle. Boo testified that the child, though reluctant to talk and exhibiting signs of hyperactivity, stated that her Uncle David had stuck a knife handle inside her vaginal area, that both her and her Uncle David's clothes were off at the time, and that her Uncle David had touched her with his "pee-pee."
Fisher testified on his own behalf and specifically denied undressing himself or his niece, licking her vagina, placing a knife handle in her vagina or having engaged in any other acts of a sexual nature with his niece. He further testified as to an occasion occurring a month or two prior to the incident on which the child had attacked him with a knife and said that she would kill him in response to his order that she finish her meal before she could have a popsicle.
In beginning his closing argument, the prosecutor addressed the jury, stating:
"Child abuse is one of the greatest problems in today's society and it is your responsibility as jurors in this case to determine how we should effectively deal with that problem. . . .
Why is this the right case?"
No objection to this statement or the prosecutor's closing argument was raised at trial by the defense. Following deliberations, the jury returned a verdict of ...