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12/28/88 the People of the State of v. Howard Bailey

December 28, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

HOWARD BAILEY, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

532 N.E.2d 587, 177 Ill. App. 3d 679, 126 Ill. Dec. 902 1988.IL.1899

Appeal from the Circuit Court of Macon County; the Hon. John K. Greanias, Judge, presiding.

APPELLATE Judges:

JUSTICE KNECHT delivered the opinion of the court. McCULLOUGH, P.J., and LUND, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KNECHT

Defendant was charged by information with two counts of aggravated criminal sexual abuse involving two victims, D.G. and C.C., both minor female children, ages eight and seven, respectively. (Ill. Rev. Stat. 1987, ch. 38, par. 12-16(c)(1).) The first count as to C.C. was dismissed by the circuit court of Macon County on motion by the defense for a directed verdict. Following the bench trial, the trial court entered a judgment of conviction on the remaining count as to D.G. and sentenced defendant to 36 months' probation and 6 months in the county jail as a condition of probation. Defendant appeals arguing the repeated introduction of testimony corroborating the victim's complaint was reversible error when the State failed to introduce evidence explaining why the child's complaints were not promptly made. We affirm.

On September 2, 1987, the defendant, Howard Bailey, was charged by information which, in part, alleged he committed an act of sexual conduct with D.G., who was under 13 years of age when the act was committed, in that he intentionally fondled the buttocks of the girl for the purpose of his sexual arousal.

At a bench trial on January 6, 1988, the complainant D.G. testified that on August 24, 1987, she visited the home of defendant with her sister, two cousins, and a friend. The children played hide and seek with defendant and his daughter.

D.G. explained that when she and defendant were alone in his bedroom while the other children were "hiding," defendant kissed her, felt her buttocks, held her hand, and "tried to put it on his privacy." D.G. said defendant told her not to tell anyone what he had done. After hide and seek, the children went to the store to get defendant some bread, but D.G. stayed at the house. D.G. testified that after the children left, defendant took her up to his room, laid down on the bed, and bounced her up and down on his stomach. Both D.G. and defendant were fully clothed.

D.G. indicated because she was scared it was not until several days after the incident that she told her mother, Janet Green, about defendant's conduct. Shortly thereafter, D.G. also complained to a police officer. Defendant did not object to the content of the girl's testimony.

D.G.'s cousin, C.C., testified when she was alone with defendant while the children were playing hide and seek, he touched her on the breasts, put her hand on his "privacy," tried to get on top of her and tried to kiss her. Defendant told her not to tell anybody what had happened.

D.G.'s mother testified D.G. told her the events which transpired at defendant's house several days after they occurred on August 24, 1987. Defendant made a hearsay objection. The State indicated the testimony was being offered under the corroborative complaint statute as contained in the Code of Criminal Procedure of 1963 (Code). (Ill. Rev. Stat. 1987, ch. 38, par. 115-10.) The testimony was allowed, but was limited so the mother was not allowed to go into the details of the complaint. According to D.G.'s mother, D.G. told her "a man had messed with her." D.G.'s mother said D.G. refers to the male genital area as "privacy."

Officer Diane Beggs testified she spoke with D.G. on August 30, 1987. D.G. complained to the officer that a man had kissed her on the lips, laid her body on top of his while lying in bed, and touched her on the "booty," which was her word for the buttocks area. The officer later discovered defendant was the offender. The State indicated the officer's testimony was offered under section 115 -- 10 solely to show a complaint was made. Defendant did not object to the testimony of Officer Beggs.

Officer Richard Hazen testified he interviewed defendant on September 1, 1987, after giving defendant his Miranda rights. Defendant waived his rights and agreed to talk with the officer. Initially, defendant denied he sexually assaulted D.G., but later admitted he touched all the girls on the chest, back, buttocks, and sides. Specifically, he said he touched D.G. and C.C. on one occasion between the legs over their clothing. In a separate ...


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