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06/26/89 the People of the State of v. Tommy Kelly

June 26, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

TOMMY KELLY, A/K/A WAYNE KELLY, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

540 N.E.2d 1125, 185 Ill. App. 3d 43, 133 Ill. Dec. 259 1989.IL.997

Appeal from the Circuit Court of Henry County; the Hon. Jeffrey O'Connor, Judge, presiding.

APPELLATE Judges:

JUSTICE BARRY delivered the opinion of the court. STOUDER, J., concurs. JUSTICE HEIPLE, Concurring in part and Dissenting in part.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BARRY

Defendant was charged with two counts of aggravated criminal sexual assault, a Class X felony (Ill. Rev. Stat. 1987, ch. 38, pars. 12-14(b)(1), (c)). The alleged victims of the offenses were five-year old Amy Sims and her seven-year-old cousin, Sara Sims. After a jury trial, defendant was found guilty of aggravated criminal sexual assault against Sara and aggravated criminal sexual abuse of both girls. He was found not guilty of aggravated criminal sexual assault against Amy. Defendant was sentenced to eight years in the Department of Corrections on the Class X felony and five years for the lesser offense against Amy, the sentences to run concurrently. Defendant appeals from his convictions.

The State's evidence as presented at trial established that Sara Sims is the daughter of Patricia Sims, who was married to a Fred Hill for a period of time prior to July 1986. Sara lived with her mother in a trailer park in Colona, Illinois. Fred Hill resided in another trailer in the park after he and Patricia were divorced. Between June and the end of August 1986, Patricia baby-sat in her home for her niece, Amy. Patricia's sister, Sharon Sims, frequently took care of Sara at her home in Green Rock. Sharon testified that during the period of July and August 1986, Sara was very dirty when Sharon came to pick her up at Patricia's home. Sara wanted a lot of baths, and she became quiet and cried frequently during this period. However, Sharon did not attribute Sara's behavior to any abuse at the time.

On April 11, 1987, Sara telephoned Sharon and asked her to pick her up. Sara was quiet and wanted a bath. After she was dressed for bed, Sara began crying. According to Sharon, Sara said she was sorry and that she hurt between her legs. Sharon undressed the child and inspected Sara's vaginal area, noting that it was red and raw. Sara continued crying. She was shaking and acted very scared. Sharon asked Sara what had happened. Sara said that her mother had hit her with a flyswatter. Not satisfied with the response, Sharon again asked how she had been hurt. This time, Sara said that Fred Hill had poked her with his finger. The following morning, Sharon took Sara to a hospital for an examination.

Because of suspected abuse, Corporal Heidi Owens of the Colona police department came to Sharon's home on April 12 to investigate. After interviewing Sara, Owens had Fred Hill arrested and his trailer was searched for photographs. An appointment was made for Sara to see Dr. Linda Ozaki, a pediatrician practicing in Davenport, Iowa, on April 15. Ozaki's examination of Sara revealed an enlarged introitus, a tear at the back of the hymen and marked redness next to the hymen. Ozaki testified that her findings were consistent with a finger having been inserted in the child's vagina; however, she was unable to specify when the injuries had occurred. She could determine only that the injury to the hymen had not occurred within several days immediately preceding her examination.

Meanwhile, on the evening of April 14, Sharon received a telephone call from Vicky Sims, Amy's mother, indicating that Amy had been sexually abused by Fred Hill. Sharon immediately telephoned Owens, who launched another investigation. At the time, Amy was staying with her aunt, Kelly Tinney, at a trailer in the same park where Fred Hill and Patricia Sims lived. Owens talked with Amy for a while, but she became too upset and Owens returned to her regular duties. About an hour later, Mrs. Tinney called Owens back, stating that Amy refused to go to bed until she talked with Owens again. Owens went back out to the trailer park, and this time Amy said that a second person, a "cross-eyed" man named Tom, was involved.

On April 16, Vicky telephoned Sharon and told her about Amy's report of another man. Sharon then sat down with Sara and asked her if anyone else had hurt her like Fred Hill had. At first Sara only cried and refused to talk about it. When she did acknowledge that there had been another man, she described him as a "cross-eyed" man named Tommy Kelly. According to Sharon, Sara said that he had "poked her with his finger too." At that point, Sharon reported again to Owens, and proceedings against defendant were initiated.

Owens testified that when Sharon and Sara came to her office on April 16, Owens showed Sara some pictures confiscated during the search of Fred Hill's trailer. Sara immediately identified defendant from one showing defendant and Fred Hill together on a couch in the living room of Hill's trailer.

Dr. Ozaki testified that she examined Amy Sims on April 20 and found that she had an enlarged introitus, but no signs of bruising or tearing of the vagina. Ozaki stated that her findings were consistent with finger penetration.

Fred Hill was tried and convicted separately before defendant's case came up for trial. In this case, Amy and Sara were both found competent to testify. Amy, with the aid of anatomically correct dolls, testified that defendant had touched her in her private area with his finger, that it hurt, and that he told her if she told anybody "they would send [her] away from home." Amy testified that Fred had "touched her down here" as well. She said that she and ...


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