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06/21/88 In Re M.M.

June 21, 1988

IN RE M.M., A MINOR (THE PEOPLE OF THE STATE OF ILLINOIS,


APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

Petitioner-Appellee, v.

M.M., Respondent-Appellant)

525 N.E.2d 266, 171 Ill. App. 3d 334, 121 Ill. Dec. 460 1988.IL.980

Appeal from the Circuit Court of Lake County; the Hon. Emilio B. Santi, Judge, presiding.

APPELLATE Judges:

JUSTICE UNVERZAGT delivered the opinion of the court. LINDBERG, P.J., and WOODWARD, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE UNVERZAGT

At the adjudicatory hearing conducted on September 26 and 29, 1986, the mother of one of the victims, N.F. (hereinafter Nick), testified that Nick was born on September 2, 1980. She related that during November and December of 1985 M.M. frequently baby-sat for her son. On cross-examination Nick's mother stated that Nick never complained to her that M.M. had done anything of a sexual nature to him. Nick related sexual incidents only after his mother asked him about them.

Six-year-old Nick testified that he presently lives in Kenosha, Wisconsin, with his parents and sister but that he used to live in Park City across the street from M.M., who often baby-sat Nick. Nick stated that on these occasions M.M. "would suck on my wiener." Nick used two dolls to demonstrate what M.M. would do. Nick related that this would happen "a lot" in his mom's bedroom on her waterbed and that when M.M. finished sucking on Nick's "wiener," M.M. would pull up Nick's pants.

Nick stated that he did not tell his mother about these incidents until after he had told his "stepdad," J.M. Nick testified that he did not know why he had told J.M. Nick recounted, "I just came up with it. I just thought of it and then I told him."

Nick testified that M.M., K.W. (hereinafter Katie), and he used to play together all the time. Nick stated that M.M. never touched or sucked Nick's "wiener" when Katie was present except one evening when M.M. baby-sat Katie and him, and they told scary stories. Nick did not remember M.M. sucking his "wiener" on that evening because he was asleep, but Katie told Nick about it one day when they were playing. Nor did Nick see M.M. do anything to Katie on that same night. Nick stated that a "wiener" is the same thing as a penis.

Sometime later when Nick was wrestling with J.M., he told J.M. about M.M. sucking his "wiener." Nick related that J.M. had not asked him about this conduct and that Nick did not recall any reason for telling J.M. at that time. Nick also stated that he did not know such conduct was "wrong" until his mom and dad told him it was wrong.

J.M. testified that in mid-July 1986 Nick and he were wrestling in the family room of their home. At the time, Nick was dressed only in his underwear. While wrestling, J.M. grabbed Nick by the back of his undershorts and they came down. Nick started laughing and said to J.M., "[That's] what does to me." J.M. then asked, "[What] do you mean he does that to you?" Nick replied, "[He] takes my pants down. . . . [He] pulls my pants down and he sucks on my wiener."

Defense counsel objected to the admissibility of J.M.'s conversation with Nick on the basis that it constituted hearsay not within the corroborative complaint exception. (Ill. Rev. Stat. 1985, ch. 38, par. 115-10.) The court overruled defense counsel's objection, stating that the testimony fell well within the statutory exception. J.M. recounted ...


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