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06/26/89 the People of the State of v. Larry Barlow

June 26, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

LARRY BARLOW, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

544 N.E.2d 947, 188 Ill. App. 3d 393, 136 Ill. Dec. 172 1989.IL.989

Appeal from the Circuit Court of Cook County; the Hon. Thomas A. Hett, Judge, presiding.

APPELLATE Judges:

JUSTICE CAMPBELL delivered the opinion of the court. BUCKLEY and O'CONNOR, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CAMPBELL

Following a jury trial, defendant, Larry Barlow, was convicted of aggravated criminal sexual assault on T.L., his 10-year-old stepdaughter, and sentenced to a prison term of 20 years. On appeal, defendant contends that: (1) the methods and procedures used to charge him violated his constitutional rights of due process by denying him notice of the crimes of which he was accused and by denying him the right to present a defense; (2) the trial court erred in granting Illinois Pattern Jury Instructions, Criminal, No. 3.01 (2d ed. 1981) (hereinafter IPI Criminal 2d) because it relieved the State of its burden of proving the date of the alleged incident, thereby denying defendant the opportunity to adequately prepare a defense; (3) the trial court erred in permitting the State to introduce other crimes evidence when there was no other crime; (4) the trial court's erroneous evidentiary rulings deprived defendant of the opportunity to present a reasonable defense; and (5) the State failed to prove defendant guilty of aggravated criminal sexual assault beyond a reasonable doubt. For the following reasons, we affirm the judgment of the trial court.

The record sets forth the following facts. On March 25, 1986, defendant was charged under indictment No. 86--3586 with aggravated criminal sexual assault predicated on defendant's alleged act of forcefully inserting his finger into T.L.'s vagina on or about March 1, 1986. At the same time, defendant was also charged under indictment No. 86--3587 with aggravated criminal sexual assault predicated on defendant's alleged act of forcefully committing an act of sexual penetration between his penis and T.L.'s vagina on or about March 2, 1986, and continuing through March 3, 1986. Originally, the State had elected to proceed on indictment No. 86--3586. However, on October 10, 1986, the State changed its election to proceed on indictment No. 86--3587. Defense counsel objected on the grounds that the State's bill of particulars stated that the events occurred about March 1, 1986, through March 3, 1986, which differed from the dates on indictment No. 86--3587. Because of this difference, defense counsel contended that she had insufficient information to proceed on the indictment. In response, the State requested leave to file an amended bill of particulars, stating that the incident had occurred between March 1 and March 5, 1986. The State explained that this "spread of the days" was the best it could do with the information it had. The State further explained that the facts regarding the offense would not change. Thus, the State argued that there would be no prejudice to the preparation of defendant's defense. The court granted the State's leave to amend and continued trial for two weeks to allow the defendant to prepare his defense regarding the extended time period.

On the day trial was to commence, prior to jury selection, the State amended its indictment with respect to the occurrence dates to conform with the previously amended bill of particulars. In addition, the State filed a notice of intent to use proof of other crimes. Specifically, the State intended to use proof of the finger penetration act which was the subject of indictment No. 86--3586. After verifying that the finger penetration act had involved the same parties at the same location as the crime charged, the trial court allowed introduction of the other crime.

At trial, Dr. Suresh Shah, emergency room physician at South Chicago Community Hospital, testified that on March 5, 1986, approximately 11 p.m., he examined T.L. He conducted a special examination to determine if there had been any sexual intercourse or trauma to T.L.'s genital area or internal organs. Dr. Shah had observed that T.L.'s hymen had been ruptured, that there was "much more white discharge coming out from the external vaginal orifice," and that she was nervous and somewhat fearful. Dr. Shah stated that the ruptured hymen was consistent with penetration by a blunt object such as a finger or penis, or it may have been ruptured by riding a bicycle or falling.

On cross-examination, Dr. Shah testified that T.L. had told him that her stepfather, defendant, had put his penis inside of her on Sunday, Monday and Tuesday (March 2, 3 and 4). T.L. also told him that she did not remember any of the details.

Following voir dire of T.L., the trial court found her competent to testify and she took the stand. During direct examination, T.L. stated that in March 1986, she lived with her mother, stepfather, brother and sister in a one-bedroom apartment. T.L. slept with her younger sister on the bottom bunk of a bunk bed and her brother slept on the top bunk. There was also another full-size bed in the room. Her mother and stepfather slept in the living room. T.L. stated that on the afternoon of the first Saturday in March (March 1), while her mother was at the store, defendant asked her to come into the bedroom. He then pulled down her pants and stuck his finger into her vagina. When he finished, defendant told her not to tell anyone, and she went into the washroom and wiped her vagina with a towel.

T.L. further testified that on the night of March 4 into the morning of March 5, defendant had come into her bedroom. Her brother was at her grandmother's house that night. Defendant put a pillow over her face, took his clothes off and climbed onto the bed on top of her, and pulled her pants down. When asked if defendant had done anything with his penis, T.L. answered "yes," but failed to respond to the question asking what he had done. After a few more questions, T.L. stated that defendant's penis had touched her butt and nowhere else. T.L. then identified her "butt" as her "back." T.L. also said that defendant had been moving while he was on top of her. The moving part touched her back and his penis went into her butt. When defendant had completed the act, he went to the bathroom. T.L. stated that she started to cry, then fell asleep. When she woke up a short time later, she washed her vagina with a towel. While washing, she noticed some "white stuff" on the back of her thigh.

Later that day, approximately 5:30 p.m., while T.L. was walking down the street with her mother, her mother noticed that something was bothering T.L and asked her about it. At first, T.L. said it was nothing because she was scared that she would be punished. When her mother reassured her that she would not be punished, she told her mother what defendant had done to her. Her mother then took T.L. to the doctor.

On cross-examination, T.L denied telling the nurse at the hospital that defendant "had put his thing inside of [her] on March 2, on March 3, and March 4, always at night"; denied telling the nurse that anal sex had not occurred; denied telling Dr. Shah that defendant "had put his thing inside of [her] on Sunday, Monday, and Tuesday"; and denied having told Dr. Shah that she could not remember any of the details. T.L. could not remember on what dates defendant had worked during the first week in March, but remembered that he had not worked on the first Saturday when the alleged finger penetration had occurred. When T.L.'s mother had asked her about the blood on the towel, she had told her mother that the blood was from her menstrual period.

When asked about the night that defendant had put the pillow over her face, T.L. stated that she could see a little bit around the edge of the pillow. At one point during cross-examination, T.L. stated that she had been lying on her back "at first." Later, she denied ever turning over onto her stomach. When asked by defense counsel, "So, Larry [defendant] never put his penis in your rectum or in your butt, did he?" the following exchange occurred:

"A. That wasn't then.

Q. What wasn't then? He did not put his penis in your rectum during this period?

A. You are just trying to make me lie.

Q. I'm not trying to make you lie. I'm trying to make you tell the truth.

THE COURT: Don't argue with the witness. , answer the questions, just as best you can, but you have to answer the question.

Q. During this period of time that you are telling us today that you say that Larry was in your room, did he ever put his penis in your butt? Yes or no?

THE COURT: Get a tissue, please.

THE SHERIFF: Sure.

THE COURT: , did he put his penis in your butt during the period of time that you already told us about? Would you answer the question, ? Ask another question please."

T.L. further testified that she had told the police officers at the hospital that defendant started having sex with her on Sunday (March 2). She denied having told the police that defendant had also had sex with her on Monday and Tuesday (March 3 and 4) nights. T.L. also denied having told the detectives at the hospital that an assault had occurred on March 2 about 2:30 a.m., but admitted telling them that an assault had occurred on March 3 at 5:30 a.m. On redirect, T.L. stated that on the same night defendant had put his penis in her vagina, he had put it in her butt.

Next, C.B., T.L.'s mother, testified that on the night of March 4, 1986, she and defendant had stayed up and talked until about 5 a.m. After going to sleep, she was awakened by a noise at approximately 5:30 a.m. She got up, turned the radio volume down and listened, but did not hear anything else, so she turned the radio volume back up. Defendant was not in the bed at the time. Approximately 6:45 a.m., T.L. came into C.B.'s room and told her that she was getting ready to go to school. This was unusually early for her.

C.B. next saw T.L. at her mother's house at approximately 5:30 p.m. later that day. When C.B. told T.L. that they were going to go to defendant's mother's house, T.L. looked "real funny" and told her that she did not want to go. When C.B. asked T.L. what was wrong, T.L. would not tell her at first. However, when C.B. told her that she would not be punished, T.L. told her that defendant had been "fiddling on her" early that morning and he had pulled his pants down and had put his "thing" in her. She then pointed to her vagina. Later that evening, C.B. took T.L. to the hospital. At the time, T.L. was crying.

At the close of the State's case in chief, the trial court denied defendant's motion for a directed verdict. Defendant's first witness, Chicago police detective Sammie Lacey, testified that on March 5, 1986, he spoke with T.L. at South Chicago Community Hospital. When asked if T.L. had told him that she had had sexual contact with her stepfather on March 1, Lacey replied that, "She didn't give us the exact date. . . . The time was kind of foggy." Lacey further stated that T.L. "couldn't distinguish from the dates," and reiterated that T.L. had been confused about the dates several times. When asked about the dates in his police report, Lacey answered,

"Okay. On these dates she was giving, the little girl herself was not supplying the dates. I believe the mother gave us, you know, those dates that she surmised what dates they happened."

Lacey further stated that T.L. had told him that there had been three incidents and, based on that information, he and the mother arrived at the dates. On cross-examination, Lacey stated that while he was asking T.L. questions at the hospital, T.L. appeared nervous, somewhat upset and a little afraid to speak to the detectives.

Next, Wilson Cooper, field supervisor for Burns Security, defendant's employer, testified that pursuant to the company's final time sheets, defendant had worked the 4 p.m. to midnight shift on March 2, 3 and 4. The records indicated that ...


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