APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
527 N.E.2d 59, 172 Ill. App. 3d 616, 122 Ill. Dec. 687 1988.IL.1128
Appeal from the Circuit Court of Winnebago County; the Hon. John E. Sype, Judge, presiding.
JUSTICE DUNN delivered the opinion of the court. LINDBERG, P.J., and INGLIS, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN
Defendant, Vernon Daniels, was charged with one count of aggravated criminal sexual assault. (Ill. Rev. Stat. 1987, ch. 38, par. 12-14(b)(1).) Defendant was found guilty by a jury and sentenced to 15 years' imprisonment in the Department of Corrections. On appeal, defendant contends: (1) he was not proved guilty beyond a reasonable doubt; (2) he was prejudiced by the introduction of other crimes evidence; (3) he was denied his sixth amendment right to present a defense; (4) the trial court abused its discretion in permitting the State to use his prior conviction of indecent liberties for impeachment purposes; (5) the examining physician was improperly permitted to testify to matters beyond his expertise; and (6) certain comments made by the prosecutor in closing and rebuttal argument deprived him of a fair trial. We agree with defendant's second contention and therefore reverse and remand for a new trial.
The information alleged that on July 28, 1985, defendant engaged in anal intercourse with his 11-year-old stepson, R.G. The charge stemmed from a neighbor's telephone call to an abuse hotline stating that R.G. and his younger sister, B.D., were in possession of sexually explicit magazines and a notebook containing sketches of sexual activity. Subsequent investigation by police resulted in the removal of R.G. and B.D. from the defendant's home and charges against the defendant and his wife, Estella. Estella Daniels was convicted at a separate bench trial of aggravated criminal sexual assault stemming from an incident with R.G. We affirmed the conviction on appeal (People v. Daniels (1987), 164 Ill. App. 3d 1055, 518 N.E.2d 669), and leave to appeal to the Illinois Supreme Court was denied.
At the defendant's trial, R.G. testified that during the pertinent time period he lived in Rockford with defendant, Estella, and B.D. On July 26, 1985, Estella and B.D. traveled to Peoria to attend a funeral; R.G. and defendant remained in Rockford. Between 11:30 a.m. and 12:30 p.m. on Sunday, July 28, R.G. and defendant watched wrestling on television in the living room. After the wrestling program was over, R.G. and defendant played a video game for a short time. Defendant then left the room, and when he returned, R.G. observed that defendant was "mad." Defendant told R.G. to go into defendant's bedroom, take off his clothes, and lay on the bed. Defendant followed R.G. into the bedroom, and R.G. did as he was told. Defendant removed his own clothes and ordered R.G. to insert defendant's penis into R.G.'s anus. R.G. "grabbed ahold" of defendant's penis and directed it toward his anus. The defendant's penis went inside his anus and remained there for a "long time" while defendant moved about. R.G. was in pain during the act. According to R.G., defendant had done this to him approximately five or six times since he was eight years old.
R.G. further testified that he, defendant, Estella, and B.D. engaged in numerous "family touching" sessions. During these encounters, the family would sit naked in a circle and engage in a variety of sexual acts. R.G. testified to the following acts: sexual intercourse with his mother and "playing" with her vagina; defendant, Estella, and B.D. touching his penis; placing his hands around defendant's erect penis and moving it back and forth; and defendant placing his penis in B.D.'s anus. Defense counsel's objection to inquiry on the defendant's anal intercourse with B.D. was overruled. On cross-examination, defense counsel inquired into the number of times defendant had intercourse with B.D. and the time period when these acts occurred. R.G. could not specify how many times he observed defendant have intercourse with B.D.; the incident he recounted on direct examination occurred when R.G. was eight years old.
Regarding the magazines and notebook, R.G. testified he found the magazines underneath defendant's bed, and that defendant had shown him one or two of the magazines. On cross-examination, defense counsel called R.G.'s attention to his testimony at Estella's trial that he found one or two of the magazines in the trash. R.G. then admitted that he did find some of the magazines in the trash.
R.G. identified a light used by defendant when he made movies of the family engaging in various sex acts. On cross-examination, defense counsel recalled that at Estella's trial, R.G. testified no extra lighting was used to make the movies. R.G. responded that he must have misunderstood the question. Although R.G. could not remember when the movies were filmed, he did state five or six movies were made. In the summer of 1984, defendant showed R.G. a movie of a man and a woman engaged in sexual activity. Estella and B.D. were also present. The movie was shown on a projector recovered from the defendant's home.
R.G. admitted he lied when he told the police the movies had Mexican names, that other people were involved in the movies, that the movies were made in other people's homes, and when he took the police around Rockford to show them where the movies were made. He also lied when he told Detective Burgess defendant transferred some of the movies to video discs, he had transferred some of the movies to discs himself, and he saw money exchanged for the movies. R.G. further acknowledged he lied when he told authorities his mother had killed someone and he had put the body in a bag. R.G. admitted he gave authorities several names for the person who was killed and led police around the county looking for the burial site. R.G. stated a body was not found because the story was a lie. R.G. added he did not include everything that he testified to in his statements to the police and to a counseling organization because he was covering up for his parents at their insistence. Regarding his propensity to lie, R.G. testified he did not like to tell lies anymore, all the things he testified to at this trial were true, and he had learned that lying is not a part of his life.
B.D. testified that during part of July 1985, she was out of town with her mother because of a death in the family. B.D. did not know the exact date in July, stating they left on a Friday and returned on Sunday night. B.D. described episodes of "family touching," which began when she was six years old. B.D. initially stated defendant never touched her, but, after extensive examination, she stated the defendant inserted his penis in her anus. B.D. recalled the filming of the movies, and she identified the light recovered from defendant's house which was used during the filming. She did not know when the movies were filmed or how old she was at the time, but estimated five or six movies were made. B.D. also recalled seeing a film of a man and woman engaged in sexual activity on the movie projector in 1984.
On cross-examination, B.D. stated she did not know what sexual intercourse was, and when she said that R.G. had sex with her, it meant that he touched her vagina with his hand. When her father had sex with her, she meant that he had anal intercourse with her. Neither R.G. nor defendant ever put anything into her vagina. B.D. added that she saw R.G. have sexual intercourse with their mother, meaning vaginal intercourse. B.D. also admitted that she had anal intercourse with a neighbor. B.D. testified she did not tell anyone about having sex because she was scared. ...