APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION
541 N.E.2d 1266, 185 Ill. App. 3d 1007, 133 Ill. Dec. 828
Appeal from the Circuit Court of Cook County; the Hon. Themis Karnezis, Judge, presiding. 1989.IL.1034
JUSTICE McMORROW delivered the opinion of the court. LINN and JOHNSON, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCMORROW
Following a jury trial, defendant was convicted of aggravated criminal sexual assault, criminal sexual assault and aggravated criminal sexual abuse. The trial court ruled that the conviction of criminal sexual assault merged with the conviction of aggravated criminal sexual assault and sentenced defendant to concurrent terms of 15 years and 7 years for aggravated criminal sexual assault and abuse, respectively. On appeal, defendant contends that (1) the erroneous admission of prejudicial hearsay testimony concerning the details of a complaint made by the complaining witness constituted reversible error; and (2) he was denied a fair trial by the trial court's refusal to grant him a continuance to locate and present certain character witnesses.
At trial, Sherita Tigue (Sherita), the mother of the complainant (hereafter T.C.) testified that defendant is T.C.'s father and that between September 1984 and January 1985, defendant's mother, Mary Baggett, babysat T.C. and Sherita's younger son two or three weekends each month at her (Mrs. Baggett's) apartment in a senior citizens' apartment complex. Defendant did not live with his mother but visited her frequently. She stopped taking her children to Mrs. Baggett's home in January 1985 at the request of T.C., who gave as her reason for not wanting to go there that defendant was "not really a father to her." In May 1986, Sherita was contacted by Patrice Keleher (Keleher), a social worker at T.C.'s elementary school. Shortly thereafter, she spoke to T.C., who told her that defendant had been "fondling and petting her and had violated her by entering her with his penis." T.C. described additional details of what had occurred in subsequent conversations with Sherita.
On cross-examination Sherita stated that prior to May 1986, T.C. had said nothing to her regarding sexual abuse by defendant. She described T.C. as a very quiet and passive child and had not noticed anything unusual about her between late 1984 and early 1985.
At trial, T.C. testified that in the latter part of 1984, she and her younger brother spent almost every weekend at defendant's mother's apartment in a senior citizen residential complex. Defendant lived there "on an off-and-on basis." One evening near the day of her tenth birthday in September 1984, defendant came to the apartment after her grandmother and brother had gone to sleep in her grandmother's bedroom. She buzzed defendant in through the intercom system and then unlocked the apartment door for him to enter. They watched an old cowboy movie on television for about an hour. He then arose from the couch where he had been sitting, came to where she was sitting on a cot and told her to rub him. She was wearing a nightgown and underwear; he was wearing a security guard's uniform. When defendant pulled down his pants, she asked him if "he would go to the bathroom," to which defendant responded by laughing. He then pulled down his underwear, took her hand, and put it on his penis. He also placed his hand under her nightgown, pulled down her underwear and began to "feel around [her] vagina" with his hand. She simultaneously hit at him and attempted, unsuccessfully, to pull up her underclothes. He then put his penis inside her vagina, which caused her pain. She tried to scream but he put his hand over her mouth. Defendant also placed his hands under her nightgown and touched her breasts. He removed his penis from her vagina after "about a minute" and told her that if she told anyone what had happened she "would be in big trouble." The same events occurred on four or five subsequent occasions at her grandmother's apartment. She did not mention the incidents to anyone, but in January 1985 she told her mother she did not want to go to her grandmother's apartment anymore because "he [defendant] wasn't being a father to [her]." She gave this explanation because she was afraid to tell her mother the truth.
In May 1986, T.C. saw a movie on television dealing with the sexual abuse of a girl by her uncle. In a conversation with her school friends Maya, Frances, Jean and Jenny about the movie, she told them that she knew someone who had been sexually abused. In a later conversation, Maya asked her if she was that person, to which she responded that she was. She thereafter spoke to the school social worker and her mother about what had happened and was also examined by a doctor.
On cross-examination, T.C. acknowledged that at a preliminary hearing she testified to seven or eight incidents of sexual contact with defendant. She stated that "the lady who was working with her" told her to add up how many times defendant "did it to [her] and the times he was rubbing on [her]"; but, in response to defense counsel's question, she stated that "it happened five or six times." She denied that she told the school social worker that there was only one incident, stating that she was merely describing one occasion that it happened. She stopped into the office of the school nurse at lunch two or three times a week to talk but never mentioned anything about any incidents of sexual abuse. She acknowledged that she told no one of these incidents between September 1984 and May 1986, when she told her friends. She met with Keleher for approximately 30 minutes every Friday after their initial conversation in early May 1986 until the end of the school year. She stated that her mother and defendant did not get along and that her mother did not like defendant.
Maya Garcia testified that one afternoon in May 1986 she and her friends, T.C., Jennifer and Jean were talking at school about a movie shown on television about a girl who was molested by her uncle. When they asked T.C. whether she had been molested, she responded that she had a friend who had been molested. Maya and Jean then had a Discussion in which they both expressed their suspicions that T.C. was referring to herself since she had not mentioned the name of the friend. They approached T.C. and asked if she had been the person who was molested and she said "yes," she had been molested by her father. The four girls then went to the school social worker's office and informed Keleher of what T.C. had reported.
Keleher testified that at about 2:30 p.m. on May 2, 1986, T.C., Maya, Jennifer and Jean came to her office. The girls informed her that they had something important to tell her and then proceeded to relate their conversation in art class in which T.C. told them she had been sexually abused. She asked T.C. whether she felt comfortable talking about the details, and asked who had abused her, how long ago and where it had taken place. T.C. told her that she had been abused by defendant in a senior citizen's home where her grandmother lived. She and T.C. had additional conversations about the abuse on May 9 and May 16. On May 20, Keleher contacted the Department of Children and Family Services and, the following day, made a formal report of what T.C. had told her in their conversations.
On cross-examination, Keleher identified a document consisting of notes she had taken about T.C.'s case in which she (Keleher) stated that T.C. "may have been sexually abused." In their conversation on May 2, T.C. mentioned only one incident of abuse. Keleher did not ask nor did T.C. tell her how many times such abuse had occurred. In their subsequent meetings, she encouraged T.C. to discuss the sexual abuse with her. T.C. never mentioned hitting her father or that he prevented her from screaming during the incident she described. She acknowledged waiting 18 days to notify DCFS, explaining that because she established that T.C. had had no contact with defendant for 1 1/2 to 2 years, she considered T.C. to be in a safe situation; that because sexual abuse charges can be very threatening to a family and the child involved, it is necessary to compile sufficient information before filing a formal report; and that it is her policy in sexual abuse cases to give the child adequate time to feel comfortable discussing the abuse with her before speaking to a stranger.
On redirect examination, the prosecutor asked Keleher if T.C. had told her that defendant touched her breasts, touched her vagina, had penetrated her by sexual intercourse, and that she experienced pain and had tried to push him away. Keleher responded in the affirmative to each question. On re-cross-examination, Keleher stated ...