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03/01/89 the People of the State of v. Daniel Avila

March 1, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

DANIEL AVILA, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

535 N.E.2d 1027, 180 Ill. App. 3d 345, 129 Ill. Dec. 262 1989.IL.259

Appeal from the Circuit Court of Cook County; the Hon. Gino L. DiVito, Judge, presiding.

APPELLATE Judges:

JUSTICE McNAMARA delivered the opinion of the court. FREEMAN, P.J., and WHITE, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCNAMARA

Defendant was convicted of criminal sexual assault following an incident on February 28, 1986, involving acts of cunnilingus and fellatio with his 16-year-old stepdaughter.

At trial, the victim testified that when she was seven or eight years old, her mother married defendant. When she was eight, defendant began fondling her and instructing her to fondle his genitals. The incidents typically occurred after school when her mother was at work.

By the time the victim was 10 or 11 years old, the sexual relations occurred three or four times a week. They first progressed to include oral sex, and later, vaginal intercourse. Typically the victim would return from school and find defendant had bathed and was waiting for her. He would tell her what she had to do. The victim testified as to the precise positions and sexual acts defendant instructed her to perform.

The victim initially believed the sexual demands were a normal thing to do. She later attempted to refuse defendant's demands. He hit her with a belt two or three times when she refused to obey his orders to go into the bedroom. Defendant often warned that the victim would break up the family if she told anyone.

During high school, the victim argued with defendant more about the sexual demands. During one argument, the victim threatened to tell her mother. Defendant replied that he had already done so. The victim told her mother about it after arguing with defendant. Her mother yelled at defendant, "You better not be doing that again." The victim did not tell her mother about it again because the victim believed her mother would not do anything about it.

When the victim was 15 years old, defendant began adoption proceedings. She appeared before a Judge, who asked whether she had any complaints or objections to being adopted, and the victim replied "No." She replied similarly to a guardian's questions.

The sexual demands and routine continued. Defendant would often leave in the afternoon to take his children to hockey practice and would usually return home immediately. As a sophomore, the victim began participating in track after school and returned home by 6 p.m.

On February 28, 1986, the victim arrived home at 5:30 p.m. She began doing her homework when defendant told her to "wash up and go in the bedroom." She complied with his demands for oral sex. This was the last day she engaged in any sexual conduct with defendant.

On March 3, 1986, the victim returned from track practice at 6 p.m. and found her mother waiting for her at the bus stop. She was angry because the victim had told her she would be home by 5:30 p.m. Her mother continued yelling at her on the way home and began hitting the victim with a whiffle bat. The mother told the victim that defendant was angry because she was not at home. The victim went to her room and remained in bed until the next day, when she telephoned her grandmother for help. Her grandmother in turn telephoned the victim's father.

The victim's father picked her up and asked what was wrong. "He had been asking me questions, you know, about why I was upset because I was crying. And then he said, 'He isn't messing with you, is he?' And I started crying and I said, 'Yes.'" The victim testified that part of the reason she did not want to go home after March 3 was because she had fought with her mother. She denied that she wanted to leave home so she could avoid taking care of her brothers and sister. The ...


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