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03/23/89 the People of the State of v. David Lawler

March 23, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

DAVID LAWLER, DEFENDANT-APPELLANT

POLICE OFFICER MICHAEL REARDEN TESTIFIED HE HAD SPOKEN WITH D

v.

ON NOVEMBER 4 AND THE GIRL SAID SHE HAD BEEN SEXUALLY ASSAULTED.



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

536 N.E.2d 1283, 181 Ill. App. 3d 464, 130 Ill. Dec. 72 1989.IL.389

Appeal from the Circuit Court of Macon County; the Hon. Rodney A. Scott, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KNECHT

Defendant was charged with one count of aggravated criminal sexual assault. (Ill. Rev. Stat. 1987, ch. 38, par. 12-14(b)(1).) The defendant was 25 years old at the time of the incident and the victim was 12 years old. After a jury trial, the defendant was convicted and sentenced to 15 years' imprisonment. Defendant appeals, alleging the trial Judge abused his discretion in finding the complaining witness competent to testify. Defendant also appeals the trial court's order assessing costs of a transcript on appeal against his bond proceeds.

The complaining witness, D.V., was a mildly mentally retarded girl, 13 years old at the time of trial. On January 24, 1988, immediately before trial, a hearing was held to determine her competency to testify. She knew her name, age, address, grade in school, and the names and ages of the other children in her household. She told the prosecution she had promised to tell the truth when sworn in and said she would. She understood it was bad to tell a lie in the courtroom. She replied, "No, I don't," to the question, "[Do] you know the difference between when somebody tells the truth and somebody tells a lie?" She said she did not know if it would be a lie if defense counsel said the Judge had a hat on. The witness also said she had trouble remembering things and could not recall the previous Halloween, Christmas, and what she did on her birthday, which was 2 1/2 weeks ago.

The Judge found the witness was responsive to questions and communicated well, knew the meaning of the oath within the requirements, but characterized her recollection as "not good." His impression was the witness definitely had not been coached. The Judge found her competent to testify and said her competency to recall the occurrence could be brought out in cross-examination.

At trial, D.V. testified she lived with her parents, three brothers, one sister, Jolene, a friend of her mother's, and Jolene's three children. She said the defendant had touched her "private part" with his "private part" before Christmas. The incident had occurred in the bedroom of her house when the defendant was living there. K.R., Jolene's eight-year-old daughter, and the victim's 11-year-old sister were also in the bedroom at that time. The victim did not at first tell anyone about the incident but Jolene's daughter did. D.V. then told "the cops" and a doctor. On cross-examination, D.V. stated she had trouble remembering the incident but then stated she could remember.

Virginia Vogel, the victim's stepmother, testified D.V. was mildly mentally disabled. D.V. slept in a bedroom with her 11-year-old sister, who was also mentally retarded, and with K.R., Jolene's daughter. The defendant, David Lawler, Virginia Vogel's 25-year-old cousin, lived in the household during October. On October 23, 1987, the defendant received a check and said he was "going out partying." Mrs. Vogel left the house at 6 p.m. and when she returned at 8 p.m. the defendant was gone. On November 4, 1987, K.R. told her something unusual had happened. After talking to D.V., Virginia Vogel reported the assault to the police.

K.R., Jolene's daughter, testified she was eight years old and in the second grade. During the night, about a week before Halloween, she and D.V. were asleep on a bunk bed in their bedroom. Lawler came into the bedroom and woke K.R. up. She asked where D.V. was. The defendant said D.V. was in another bed in the bedroom. The defendant then went over to the other bed, took off his shorts and got into bed with D.V. He was naked. K.R. later told D.V.'s mother what had happened.

A physician, Dr. Terry Balagna, testified he examined D.V. on November 4, 1987, and found she had a perforated hymen. He could not tell when it had been perforated or the cause. The perforation could have been caused by an adult male penis.

The defendant, David Lawler, stated he did not have sex with D.V. on the night in question. He went to three bars on the evening of October 23, had one drink at each bar, and then went to two restaurants with a friend named Kevin. He got home at daylight. He stated he did not get drunk and denied making any incriminating statements to the police. Police officer Diane Beggs testified she questioned the defendant on the evening of November 5, 1987. At first the defendant denied the allegations of sexual assault. Then, about midway through the interview, the defendant said he had sexual intercourse with the victim. The two other girls were also present in the bedroom. He said he had been very drunk that night. In rebuttal, the officer stated Lawler never mentioned going to the restaurants with a person named Kevin. Defendant told Officer Beggs he had met an out-of-town girl at a bar and had sex with her. He stated he had this girl on his mind when he returned to the girls' bedroom and had sexual intercourse with D.V. Toward the end of the interview, the defendant began crying and said he wanted to tell D.V.'s mother he had not meant to hurt her stepdaughter when he had intercourse with her and he was sorry.

The jury returned a verdict of guilty and the defendant was sentenced to 15 years' imprisonment. At the sentencing hearing, the defendant said he wanted to appeal. The Judge ordered the cost of the ...


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