APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
548 N.E.2d 788, 192 Ill. App. 3d 444, 139 Ill. Dec. 403 1989.IL.2010
Appeal from the Circuit Court of Champaign County; the Hon. Robert J. Steigmann, Judge, presiding.
PRESIDING JUSTICE KNECHT delivered the opinion of the court. LUND and GREEN, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KNECHT
Defendant William L. Rushing was charged by information with one count of aggravated criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12-14) and two counts of aggravated criminal sexual abuse (Ill. Rev. Stat. 1987, ch. 38, par. 12-16(c)(1)). The offenses allegedly occurred on or about the summer of 1986 against a minor complaining witness, D.B. The single count of aggravated criminal sexual assault alleged defendant committed an act of sexual penetration with D.B. by placing his finger in her vagina. The charges of aggravated criminal sexual abuse alleged defendant committed acts of sexual conduct with D.B. by touching her vaginal area with his finger and by having D.B. touch his penis with her hands. On September 16, 1988, following a jury trial in Champaign County, defendant was convicted of the two counts of aggravated criminal sexual abuse. Defendant was sentenced to four years' imprisonment on each count, to be served concurrently. Defendant appeals his convictions, alleging the trial court erred in admitting hearsay testimony and in allowing the prosecutor's closing argument. We affirm.
Prior to trial, the prosecutor filed notice of its intent to present evidence pursuant to section 115-10 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 115-10). The notice informed defendant of the State's intent to offer out-of-court statements of D.B. made to Pam Roberts, Detective Michael Parker, and Dr. Mary Kathleen Buetow. At a pretrial hearing held pursuant to section 115-10(b)(1) of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 115-10(b)(1)), the court heard testimony from D.B., Roberts, and Parker. D.B. testified she told "Pam," a doctor, and a policeman what happened to her. Roberts and Parker recounted D.B.'s allegations, and the court examined the report of Dr. Buetow. Over defendant's objection, the trial court permitted admission of the out-of-court statements.
At trial, D.B. testified she was nine years old and met defendant through the Caravan program at the Nazarene Church. Defendant was a teacher and drove the Caravan group to activities. D.B. spent the night twice at defendant's home, once with her sister and once by herself. On the night she spent alone at defendant's residence, D.B. went to bed wearing a T-shirt and underpants. She claimed defendant came into the room she was sleeping in, sat on the corner of the bed, and rubbed his "private part" on her leg and arm. Yellow and white "goop" got on her arm when he touched it with his "private part." Defendant had D.B. hold his "private" in her hands. He left the room when they heard his wife drive up.
Dr. Buetow, a pediatrician, testified she examined D.B. on June 20, 1988. As part of the examination, D.B. told her that about a year ago she went to the home of a man from her church, Bill Rushing. He took her into a bedroom of his home where he took the "thing between his legs" and rubbed it on her arms, legs, and thighs. "White, yellow sticky stuff" came out onto her arms. D.B. told Dr. Buetow defendant pulled up her shirt and pulled down her underpants. He put his finger in her private part and left it there for one or two minutes. He stopped when his wife came home. Over defense objection, Dr. Buetow testified D.B. said defendant told her not to tell anyone. Defendant stated if she did tell he would go to jail and when he got out he would kill her mother and father.
Ms. Taylor, D.B.'s mother, testified she enrolled her children in the Caravan program approximately 2 1/2 years ago. Defendant was a teacher and bus driver there. Approximately two years before trial, D.B. spent the night with defendant on two occasions. Her sister accompanied her on one of the stays.
Michael Parker, a detective with the Champaign police department, testified he interviewed D.B. on May 27, 1988. He testified D.B. told him the incident occurred at defendant's home when only she and defendant were there. The incident happened a long time ago. Defendant removed her underwear and played with her private parts. She stated defendant put his finger "inside where she pees." She stated defendant rubbed his "private part" on her cheeks and had her touch his "private part." "Yellow and white goop" came out. She also stated defendant told her not to tell anyone. Defendant stated if she did, he would go to jail and when he got out he would kill her mother and father.
Pam Roberts, a neighbor of D.B., testified that on May 26, 1988, D.B. was playing with her daughter. The girls began to argue, and Roberts went outside to see what was going on. D.B. was upset with Roberts' daughter and also upset with "Bill." D.B. said nobody was her friend. D.B. said she was afraid because defendant told her he would kill her mother, father, brother, sister, and hurt her. D.B. said the incident occurred when she spent the night at defendant's home after a cookout. D.B. put her hand near her groin area and said defendant touched her under her pajamas. D.B. also said defendant rubbed "it" on her body and that "white, yellowish stuff" got on her skin.
In his work with the Church of the Nazarene, defendant testified he taught Sunday school, helped in the Caravan program and with junior church, was an outreach director, and sat on the church board. Defendant testified D.B. and her sister did on one occasion sleep over at his home. On this occasion, D.B. came into his bedroom when his wife was not home and woke him up. He put his arm around her and talked to her for a short time. He then told her to go back to her room as she could not stay with him. Defendant could not remember D.B. ever having stayed at his home alone. Defendant testified on May 22 or 23, 1988, he was at church in the back of a large room with his group. D.B. was supposed to be in the front of the room with her group. D.B. kept coming back to defendant wanting to sit with him. He told her to sit with her own group. D.B. became upset and pinched defendant. Several days later the police informed him of D.B.'s accusations.
The jury convicted defendant for the act of touching the vaginal area of D.B. and for having D.B. touch his penis with her hands. Defendant was not convicted of the charge which alleged penetration. At trial, D.B. testified to the act of touching defendant's penis. Regarding the other allegations, D.B.'s testimony was defendant had touched her somewhere else and she had told the doctor what defendant did with his fingers. Additional details of the allegations were presented to the jury by Dr. Buetow, Parker, and Roberts. Their testimony recited what D.B. had told them regarding the incident.
Defendant alleges the trial court erred in admitting the out-of-court statements. Testimony by a witness as to something told to the witness by another is hearsay if the testimony is offered to proved the truth of the matter asserted. (People v. Carpenter (1963), 28 Ill. 2d 116, 190 N.E.2d 738.) According to defendant, the testimony of Dr. Buetow, Parker, and Roberts as to what D.B. told them defendant did was hearsay as it was offered to prove the truth of these matters. Generally, hearsay testimony is not admissible though exceptions to this rule are made. Here, the trial court granted admission of the out-of-court statements pursuant to the hearsay exception for sexual acts on a child under the age of 13. Ill. Rev. Stat. 1987, ch. 38, par. 115-10.
Defendant contends the purpose of section 115 -- 10 is only to provide corroboration a complaint was made. Any details beyond those necessary to corroborate are impermissible. (People v. Bradley (1988), 172 Ill. App. 3d 545, 526 N.E.2d 916; People v. Sexton (1987), 162 Ill. App. 3d 607, 515 N.E.2d 1359.) The cases cited by defendant interpreted section 115 -- 10 of the Code as enacted January 1, 1983, and as subsequently amended effective July 1, 1984. The statute stated:
"In a prosecution for a sexual act perpetrated upon a child under the age of 13, including but not limited to prosecutions for violations of Sections 12 -- 13 through 12 -- 16 of the Criminal Code of 1961, the following evidence shall be admitted as an exception to the hearsay rule:
(1) testimony by such child that he or she complained of such act to another; and
(2) testimony by the person to whom the child complained that such complaint was made in order to corroborate the child's testimony." (Ill. Rev. Stat. 1985, ch. 38, par. 115-10.)
After the cases cited by defendant, section 115 -- 10 was again amended. Effective January 1, 1988, section 115 -- 10 of the Code now states:
"(a) In a prosecution for a sexual act perpetrated upon a child under the age of 13, including but not limited to prosecutions for violations of Sections 12 -- 13 through 12 -- 16 of the Criminal Code of 1961, the following ...