APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
525 N.E.2d 576, 171 Ill. App. 3d 391, 121 Ill. Dec. 518 1988.IL.1008
Appeal from the Circuit Court of Lake County; the Hon. Jack Hoogasian, Judge, presiding.
JUSTICE NASH delivered the opinion of the court. REINHARD and WOODWARD, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH
After a jury trial defendant, Jimmie L. Brown, was convicted of aggravated criminal sexual abuse (Ill. Rev. Stat. 1985, ch. 38, par. 12-16(d)) and sentenced to 17 years' imprisonment. He appeals contending that (1) the trial court erred by refusing to instruct the jury that defendant's reasonable belief that the complainant was 16 years of age was an affirmative defense to the crime charged; (2) his trial counsel was ineffective for failing to introduce evidence of defendant's reasonable belief that the complainant was 16 years of age; (3) statements made in defendant's presence were improperly admitted as an implied admission; (4) defendant's conviction should be reduced to criminal sexual abuse, a Class A misdemeanor, in light of the complainant's age and sexual maturity; and (5) the 17-year sentence imposed was an abuse of discretion.
Officer Randy Furlough testified in trial that on October 22, 1986, he responded to a call at complainant's residence of a burglary in progress and was met by Julie Martinez, the complainant's mother. Furlough and Mrs. Martinez went to an upstairs bedroom, and after knocking on the door and receiving no response, Furlough kicked it open. Defendant and the complainant, DeAnn Martinez, who was 15 years old, were found nude, sleeping in bed. Furlough testified, over objection, that Mrs. Martinez told defendant to "[get] up; you know she's only 15." Defense counsel stated that his objection was based on prejudice and was "not a matter of hearsay." Defendant was initially arrested for criminal trespass to land, and, when it was learned that he was 23 years old, he was charged with aggravated criminal sexual abuse.
The complainant testified that she was born on November 15, 1970, had known defendant for about eight or nine years, and had been seeing him since the day before her birthday on November 15, 1985. She stated that on October 22, 1986, she let defendant into her bedroom through a window, and, after talking and kissing for a while, they engaged in sexual intercourse. She also stated that she had told defendant before her fifteenth birthday that she was going to be 15. On cross-examination, the complainant testified that she told defendant her correct age both before and after her fifteenth birthday. She also stated that she may have told defendant the day before her fifteenth birthday that she was already 15, and that right after her fifteenth birthday, defendant had told her that he thought she was 16. She did not know the basis for defendant's belief that she was 16. On redirect examination, the complainant testified that she told defendant she was a freshman in high school, and on re-cross-examination, she "guessed" that there were many freshman at school who were already 16 years old, but that she didn't know.
Mrs. Martinez testified that she was awakened on October 22, 1986, by a noise on the roof, and when she went outside, she saw her daughter's bedroom window open, and that it is normally nailed shut. She called the police, and when Officer Furlough arrived and accompanied her to her daughter's bedroom, they found defendant and complainant lying in bed pretending that they were asleep. Mrs. Martinez hit defendant's chest a couple of times demanding that he get up, and he ignored her. She also testified that, while she did not remember exactly what she said, she thought she said "That's it. I am getting you for statutory rape.", Defendant did not testify or present any witnesses on his behalf.
At the jury instruction conference, defense counsel tendered the following Illinois Pattern Jury Instruction on the defense of reasonable belief of age: "It is a defense to the offense of Aggravated Criminal Sexual Abuse that the defendant reasonably believed De Ann Martinez to be 16 years of age or older." (See Illinois Pattern Jury Instructions, Criminal, No. 11.43 (2d ed. Supp. 1987) (hereinafter IPI Criminal 2d No. 11.43 (Supp. 1987)); see also Ill. Rev. Stat. 1985, ch. 38, par. 12-17(b).) The following colloquy took place between the trial Judge and defense counsel:
"THE COURT: I think to bring it in as a defense you have to bring somebody in on your side of the case. This is cross examination.
MR. KEEFE [defense counsel]: That's not the law.
MR. KEEFE: The State has the burden of proving every element of this case ...