APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
533 N.E.2d 57, 178 Ill. App. 3d 251, 127 Ill. Dec. 439 1988.IL.1869
Appeal from the Circuit Court of Cook County; the Hon. Michael Getty, Judge, presiding.
PRESIDING JUSTICE LORENZ delivered the opinion of the court. PINCHAM and MURRAY, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LORENZ
Defendant, Anthony Land, was charged with rape (Ill. Rev. Stat. 1981, ch. 38, par. 11-1(a) (repealed by Pub. Act 83-1067, § 28, eff. July 1, 1984)) and because he was 16 years old at the time of the offense, he was prosecuted as an adult pursuant to section 2-7(6)(a) of the Juvenile Court Act (Ill. Rev. Stat. 1983, ch. 37, par. 702-7(6)(a) (now Ill. Rev. Stat. 1987, ch. 37, par. 805-4(6)(a))). Following a jury trial, he was found guilty of attempted rape (Ill. Rev. Stat. 1981, ch. 38, par. 8-4) and sentenced to 10 years' imprisonment. On appeal, we address the following seven issues: (1) whether defendant's failure to obtain a ruling on his motion for a new trial adversely affects his appeal; (2) whether his motion to suppress statements was denied in error because the State did not call a material witness; (3) whether the mother's testimony of the complainant's statements concerning the attack should not have been admitted in evidence; (4) whether the expert's testimony invaded the jury's exclusive fact finding province; (5) whether the State's alleged improper comment in closing argument denied defendant a fair trial; (6) whether the trial court erred when it gave the jury a non-pattern jury instruction and a general not guilty verdict form; and (7) whether defendant was erroneously sentenced as an adult. We affirm.
The evidence at trial established the following facts.
On January 29, 1984, at approximately 10:30 p.m., the mother of the complainant left her five children with her downstairs neighbor, Ms. Rebecca Land, defendant's aunt, while the mother went out for the evening. At approximately 1 a.m., the mother returned to Ms. Land's apartment and each of her children was sleeping. She woke up her children and brought them upstairs to her apartment and put them back to sleep. The mother went back downstairs to Ms. Land's apartment for a few minutes. When she returned upstairs again, she heard her four-year-old daughter, the complainant, crying in her bed. At trial, the mother testified, over defendant's objection, that she went to the complainant, who said, speaking quickly and loudly, "Anthony [the defendant] hurt, he stuck his thing in my thing down there, put it in my boody [ sic ]." The complainant pointed to her vaginal area when she made the statement. The mother examined the complainant's vaginal area and found it was red and swollen.
The mother took the complainant to the hospital where she was examined by Dr. Barbara Robinson. At trial, over defendant's objection, the doctor testified, "My diagnosis was that the [complainant] had the described erythema, hyperemia, and tenderness which were consistent with the alleged sexual abuse." The parties stipulated that specimens taken from complainant tested negative for the presence of spermatozoa or semen.
Detectives William Wendt and James Cornelison were called to the hospital to begin their investigation. They spoke with defendant, who was brought to the hospital by his aunt, Ms. Land, and he denied assaulting the complainant. At that time, defendant was 16 years old.
The detectives took defendant to the police station, where he told the detectives he came home that evening, to his aunt's apartment, at approximately 11:30 p.m., and saw the complainant sleeping in the bedroom. Defendant said he pulled down his pants, laid on top of the complainant, and inserted his "thing" into her. After he "came," complainant started to cry and he left the room.
Subsequently, Assistant State's Attorney Stephen Botti interviewed defendant in the presence of Detective Cornelison. Defendant signed a written statement that Botti prepared, which read as follows:
"While everyone was asleep in the house I went to the bed [complainant] was sleeping in. I got on top of [her] and put my penis into her vagina. I had an orgasm. [She] woke up right after my orgasm and started to cry. I left the room and [she] stayed in bed crying. I knew that [she] was 4 years old."
Prior to trial, defendant moved to suppress his oral and written statements on the basis that they were made involuntarily. Botti, the assistant State's Attorney who prepared the written statement, did not testify at the hearing, and defendant did not raise an objection to his absence. Defendant's motion to suppress was denied. At trial, the jury heard testimony from Detectives Wendt and Cornelison as to the substance of defendant's oral and written statements.
The complainant did not testify at trial, and the court did not conduct a hearing to determine whether she was a competent witness.
At the close of the State's case, defendant moved for a directed verdict which was denied. The defense then ...