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09/14/89 the People of the State of v. Samuel Morton

September 14, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

SAMUEL MORTON, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

543 N.E.2d 1366, 188 Ill. App. 3d 95, 135 Ill. Dec. 619 1989.IL.1424

Appeal from the Circuit Court of Sangamon County; the Hon. Philip Schickedanz, Judge, presiding.

Rehearing Denied October 12, 1989.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GREEN

The principal issue in this case concerns application of the statutory exception to the hearsay rule involving evidence of complaints of children as to unlawful sexual acts perpetrated upon them. In prosecutions for certain sexual acts, section 115-10(a)(2) of the Code of Criminal Procedure of 1963 (Code) effective January 1, 1988, permits, under stated conditions, admission into evidence of an "out of court statement made by [a victim of such an act who is less than 13 years of age] describing any complaint of such act or matter or detail pertaining to any act which is an element of an offense which is the subject of a prosecution." (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 38, par. 115-10(a)(2).) Under court interpretation of prior statutes, the witness was not permitted to testify as to the details of the sexual act or the identification of the perpetrator of the act as related by the victim. (People v. Bradley (1988), 172 Ill. App. 3d 545, 526 N.E.2d 916; People v. Server (1986), 148 Ill. App. 3d 888, 499 N.E.2d 1019, cert. denied (1987), 484 U.S. 842, 98 L. Ed. 2d 88, 108 S. Ct. 131; People v. Leamons (1984), 127 Ill. App. 3d 1056, 469 N.E.2d 1137.) The most significant question here is whether the present section 115-10(a)(2) permits evidence of those details of acts which are elements of the offense and that identification. We hold that it does.

On June 3, 1988, following a jury trial in the circuit court of Sangamon County, defendant Samuel R. Morton was convicted of two counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12-14(b)(1)) of his eight-year-old son J.M. in that he knowingly committed an act of sexual penetration by placing his penis in the anus of his son. One act was alleged to have taken place on August 19, 1987. By the State's answer to a request for a bill of particulars, the time of the other act was limited to the period from May 1, 1987, to July 15, 1987. A charge alleging he also placed his penis in the mouth of his son was later dismissed by the State. He was subsequently sentenced to a term of nine years' imprisonment on each count to run concurrently.

On appeal defendant maintains (1) his guilt was not proved beyond a reasonable doubt; (2) the court erred in admitting testimony of Nancy Roncancio, an investigator for the Department of Children and Family Services, and Dave Shaneman, a Sangamon County deputy sheriff, in regard to statements made to them by J.M. concerning acts of defendant upon which the charges against defendant were based; (3) the court also erred in admitting testimony of Jeanne Hamilton, a counsellor, as to damaging admissions defendant had made to her during counselling; (4) defendant was entitled to a mistrial; and (5) the court considered improper matters in imposing sentence and abused its discretion in imposing a term of nine years' imprisonment. We affirm.

The most important prosecution evidence was the testimony of J.M. After examination by court and counsel, he was found competent to testify. He then said: (1) he was eight years old; (2) he had been to the Rape Information and Counseling Center in August of 1987 and told a secret; (3) the secret was that his father (defendant) had "stuck his penis into my butt"; (4) the incident had occurred the day before he had been to the center while J.M. was preparing to take a bath; (5) he had his clothes "halfway" off when his father entered the bathroom; (6) after the act, J.M. wiped "white sticky stuff" from his bottom and got into the bathtub; (7) afterwards, J.M. would go into his bedroom, place a toy chest in front of the door and take a nap; and (8) it hurt him "a little."

J.M. also testified (1) the foregoing conduct of his father had occurred before and had been continuing periodically for over a year; (2) on occasion, his father would put his penis into J.M.'s mouth, usually in the back of defendant's van; (3) his father told him if he told this secret, he would punish him; and (4) he previously had trouble controlling his bowel movements, but he did not have that problem after his father moved out in August 1987. On cross-examination, J.M. testified that he had attended counseling weekly since August of 1987 and had discussed his testimony numerous times.

Nancy Roncancio then testified: (1) she was an investigator for the Department of Children and Family Services ; (2) on August 20, 1987, she investigated a report of child abuse concerning J.M.; (3) on that date, she went to the RICS office and spoke with J.M.; (4) J.M. told her that his father had put his penis in J.M.'s mouth and bottom and drew a picture of his dad and himself with an arrow pointing from his dad's penis to J.M.'s bottom; (5) J.M. indicated on a marker the depth of penetration and the approximate color of the "white sticky stuff"; (6) J.M. told her the "stuff" got on his bottom and his underwear and that the acts would occur in the bathroom most of the time except for once when it happened in his bedroom; (7) she and Deputy Shaneman went to defendant's home to search for the nude photographs of J.M. that he had told them his father had taken of him, but they were unable to find any; (8) she then went to the hospital where J.M. was being examined; and (9) the exam revealed no physical evidence of abuse.

Shaneman testified he talked to J.M. at the RICS office on August 20, 1987, and was told by J.M. that after defendant had sex with him, he often soiled his underwear. Shaneman stated he then searched the Morton residence for J.M.'s underwear but was unable to find any with evidence of feces, semen, hair, or blood on it. William Frank, a forensic scientist with the Illinois State Police, testified that he analyzed two pair of underwear taken in the search of defendant's house, and both were negative for semen and blood.

Jeanne Hamilton, an employee counselor at St. John's Hospital, where defendant had previously worked, testified for the State. She explained defendant had come to see her, appearing visibly very upset. According to Hamilton, in the course of a 40- to 45-minute conversation, defendant told her a possibility existed he may have committed an act of sexual molestation but if he had done so, he did not remember it.

Defendant testified, in his own behalf, denying any acts of sexual abuse. He also denied making any statement to Hamilton that a possibility existed he might have committed the offense but did not remember doing so. This latter denial was supported by a stipulation that an investigator for defendant's attorney would testify that he interviewed Hamilton and made notes and his notes do not indicate Hamilton told him defendant made the statement concerning the possibility he committed the offense but could not remember. Defendant's brother and sister both testified at trial that they had taken care of J.M. on numerous occasions, and that they had not noticed any marks or bruises on his body. Defendant's sister also said she did not notice any changes in J.M.'s moods or behavior.

Defendant's theory that the prosecution's proof was insufficient is based largely upon the rule that in sexual abuse cases, where, as here, the accused denies commission of the offense, in order to support a conviction, the testimony of the victim must be corroborated or be clear and convincing. (In re B.J.S. (1987), 151 Ill. App. 3d 1023, 503 N.E.2d 1198.) Here, the testimony of J.M. is corroborated if the testimony of Roncancio and Hamilton is admissible because J.M.'s complaints corroborate his testimony at trial, as does Hamilton's testimony of defendant's admission. As we later explain, we hold this testimony was admissible. Corroboration is not dependent on the testimony of Shaneman.

As defendant correctly points out, no physical evidence of his guilt was produced, and substantial evidence indicated J.M. was coached concerning his testimony. In addition, some inconsistency existed in (1) J.M.'s testimony as to the frequency of the sexual acts; (2) his testimony about some nude pictures which he said his father took of him; and (3) his testimony concerning whether he put his toy chest in front of his bedroom door to keep his father out. The failure of Shaneman to find any evidence of the offense in J.M.'s underwear the day after the last alleged occurrence was also of some significance. However, testimony of a young victim does not have to be perfect to be clear and convincing. (People v. Sexton (1987), 162 Ill. App. 3d 607, 515 N.E.2d 1359.) More particularly, failure of the child witness to remember dates does not render the testimony unclear as a matter of law. (Sexton, 162 Ill. App. 3d at 612, 515 N.E.2d 1363.) In any event, because of the corroborating evidence here, we need not decide whether J.M.'s testimony here was clear and convincing.

J.M.'s testimony, together with the corroborating testimony of other witnesses, was sufficient to enable a reasonable jury to conclude each element of defendant's guilt of each offense was proved beyond a reasonable doubt. Jackson v. Virginia (1979), 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781; People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.

The defense contention that the testimony of Roncancio and Shaneman was inadmissible is based on his contention that (1) their testimony in regard to the complaints made to them of the sexual acts of defendant was improper because they both included J.M.'s report of the details of defendant's acts and named him as the perpetrator of those acts; (2) in regard to Shaneman, no hearing was held pursuant to section 115-10(b)(1) of the Code (Ill. Rev. Stat. ...


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