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08/21/89 the People of the State of v. Bartholomew Harris

August 21, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

BARTHOLOMEW HARRIS, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

543 N.E.2d 859, 187 Ill. App. 3d 832, 135 Ill. Dec. 291 1989.IL.1281

Appeal from the Circuit Court of Cook County; the Hon. Michael Getty, Judge, presiding.

APPELLATE Judges:

JUSTICE BUCKLEY delivered the opinion of the court. MANNING, P.J., and CAMPBELL, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BUCKLEY

Bartholomew Harris (defendant) was charged by information with aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12-14), criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12-13), aggravated criminal sexual abuse (Ill. Rev. Stat. 1985, ch. 38, par. 12-16), and unlawful restraint (Ill. Rev. Stat. 1985, ch. 38, par. 10-3). After a jury trial on these charges, defendant was convicted of aggravated criminal sexual assault, criminal sexual assault, and aggravated criminal sexual abuse. Because the trial court determined that the lesser included offenses of criminal sexual assault and aggravated criminal sexual abuse merged into the aggravated criminal sexual assault offense, defendant was sentenced to 25 years in prison with three years of mandatory supervised release solely on the aggravated criminal sexual assault conviction.

Defendant appeals his convictions and sentence, contending that (1) the State failed to prove him guilty beyond a reasonable doubt for the crimes of criminal sexual assault and aggravated criminal sexual assault; (2) the trial court erred in accepting the State's jury instructions on an element of the offenses; (3) the State committed reversible error in misstating the law and the facts in closing argument to the jury; (4) the trial court erred in not requiring the State to provide a bill of particulars; and (5) the sentence of 25 years in prison with three years of mandatory supervised release was excessive. We affirm in part and vacate in part.

The State introduced testimony at trial that in March 1985, the victim, seven-year-old Vanessa Miela, approached her mother, Sharon Miela, and stated that defendant, who had been living with them, had been touching her in the vaginal area. The victim also told her friend, Serese, that the defendant was touching her.

On June 28, 1985, the Chicago police department received information concerning the aforementioned events. The officer assigned to the case, Donald Petersen, initially spoke with the victim's friend. Subsequent to speaking to the victim regarding the information received, Petersen placed defendant under arrest and took the victim to Provident Hospital, where she was examined.

From this examination, Dr. David Blackwell, a physician and surgeon at Provident Hospital, testified that the victim "had a tear in her, on the outer aspect of her vagina." *fn1 Dr. Blackwell found that the injury was "consistent with sexual abuse." He further testified that the victim told him that someone had been fondling her in the vaginal area.

The victim testified that defendant came into her bedroom on numerous occasions and touched her beneath her underwear. At times, defendant would unzip or take off his pants exposing his penis to the victim. The victim also testified that defendant would masturbate to ejaculation while he touched the victim's "middle." To demonstrate how defendant touched her and what she meant when referring to her "middle," the victim rubbed an anatomically correct doll, given to her by the State, in the vaginal area and placed her right finger inside the vaginal opening of the doll. The victim further stated that during the course of these events, defendant would cover the victim's mouth and hold her down on the bed.

An assistant State's Attorney, Richard Pullano, testified that he interviewed defendant at the police station on June 28, 1985. Defendant told Pullano that he had rubbed the victim's vagina and masturbated in her presence until he ejaculated in his hand, and that he grabbed the victim's chest and made her kiss and touch his penis. He further stated that he engaged in this activity several times a month with the victim, but could not remember the exact number because he was usually drunk. After the interview, Pullano prepared a handwritten summary of defendant's statement, which the defendant signed as being true and accurate.

The defendant testified on his own behalf. He denied engaging in any of the above activities with the victim. Defendant explained that he signed the statement at the police station because the police and Pullano said they would not take his children away from him, because he could not read well, and because he did not understand Pullano's prepared statement. Defendant claimed that Pullano fabricated the statements concerning his actions toward the victim, but admitted on cross-examination that Pullano read the statement to him and that he was not coerced to sign it.

As to his first contention that the evidence presented at trial did not prove him guilty beyond a reasonable doubt for the offenses of criminal sexual assault and aggravated criminal sexual assault, defendant argues that the State failed to prove "sexual penetration" for the charged crimes. An essential element of the crimes of criminal sexual assault and aggravated criminal sexual assault is "sexual penetration." (Ill. Rev. Stat. 1985, ch. 38, pars. 12-13(a), 12-14(b).) The Criminal Code of 1961 (the Code) defines "sexual penetration" as follows:

"'Sexual penetration' means any contact, however slight, between the sex organ of one person and the sex organ, mouth or anus of another person, or any intrusion, however, slight, of any part of the body of one person or of any animal or object into the sex organ or anus of another person, including but not limited to cunnilingus, fellatio or anal penetration. Evidence of emission of semen is not required to prove sexual penetration." Ill. Rev. Stat. 1985, ch. 38, par. 12-12(f).

In support of his contention that the State did not prove sexual penetration, defendant relies on the case of In re Williams (1974), 24 Ill. App. 3d 593, 321 N.E.2d 281, to construe the word "intrusion." Defendant argues, based on In re Williams, that the requirement of an "intrusion" involves an "insertion." (In re Williams, 24 Ill. App. 3d at 598, 321 N.E.2d at 284.) Defendant maintains that the State failed to meet its burden of proving insertion beyond a reasonable doubt. We disagree with defendant.

As the State argues, sexual penetration can be committed by "any intrusion, however slight." (Ill. Rev. Stat. 1985, ch. 38, par. 12-12(f).) The issue of whether sexual penetration did occur is a question of fact for the jury to determine. (People v. Shivers (1975), 29 Ill. App. 3d 359, 360, 330 N.E.2d 288, 289; In re Williams, 24 Ill. App. 3d at 598, 321 N.E.2d at 284.) A reviewing court will not encroach upon the jury's function to weigh the credibility of the witnesses or otherwise assess the evidence (People v. Yates (1983), 98 Ill. 2d 502, 518-19, 456 N.E.2d 1369, 1377-78; People v. Nelson (1986), 148 Ill. App. 3d 811, 821, 499 N.E.2d 1055, 1062), but will set aside a guilty verdict if evidence is so palpably contrary to the finding or so unreasonable, improbable, or unsatisfactory as to leave a reasonable doubt about the accused's guilt (People v. Shum (1987), 117 Ill. 2d 317, 356, 512 N.E.2d 1183, 1198; Yates, 98 Ill. 2d at 518-19, 456 N.E.2d at 1377-78; People v. Williams (1982), 93 Ill. 2d 309, 315, 444 N.E.2d 136, 138). Furthermore, a conviction for criminal sexual assault will be upheld by a reviewing court where the testimony of the victim is clear and convincing or substantially corroborated by other evidence. People v. Server (1986), 148 Ill. App. 3d 888, 895, 499 N.E.2d 1019, 1024; People v. Morgan (1986), 149 Ill. App. 3d 733, 739, 500 N.E.2d 1121, 1125.

We find the evidence here proved beyond a reasonable doubt the element of sexual penetration. First, the victim's testimony, when examined in its entirety, clearly and convincingly establishes sexual penetration. She testified that the defendant tried to put his finger in her vagina. She depicted defendant's acts to the jury by inserting her finger into the vaginal opening of an anatomically correct doll. This testimony was clear and convincing proof of sexual penetration. See People v. Hutson (1987), 153 Ill. App. 3d 1073, 506 N.E.2d 779 ...


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