Appeal from the Circuit Court of Lake County. No. 91-CF-1364. Honorable Peter M. Trobe, Judge, Presiding.
Released for Publication February 8, 1994.
The opinion of the court was delivered by: Quetsch
JUSTICE QUETSCH delivered the opinion of the court:
Defendant, W.T., was found guilty by a jury in the circuit court of Lake County of aggravated criminal sexual assault (Ill. Rev. Stat. 1991, ch. 38, par. 12-14(b)(1) (now 720 ILCS 5/12-14(b)(1) (West 1992))). Subsequently, defendant's post-trial motion for judgment notwithstanding the verdict or for a new trial was denied by the court, and defendant was sentenced to 11 years' imprisonment. Defendant appeals, contending: (1) that he was not found guilty beyond a reasonable doubt because the complainant's version of alleged sexual assault was contrary to medical evidence; (2) that he was denied the effective assistance of counsel when defense counsel failed to tender instructions on aggravated criminal sexual abuse; and (3) that the 11-year sentence imposed upon him was excessive.
Following a hearing pursuant to section 115-10 of the Code of Criminal Procedure of 1963 regarding the admissibility of hearsay statements (Ill. Rev. Stat. 1991, ch. 38, par. 115-10 (now 725 ILCS 5/115-10 (West 1992))), the cause proceeded to a jury trial. At trial 18-year-old Renee Berg testified that she had been baby-sitting for the complainant, B.Z., and her younger brother, S.T., for nearly two years. The children's mother would bring them to Berg's house at about 2:30 p.m. on her way to work. Defendant would pick them up at about 12:30 a.m. when he got off work.
Berg related that prior to putting B.Z. to bed on June 26, 1991, she mentioned to B.Z. that defendant was going to pick her up. Berg recalled that B.Z. began crying and told Berg that her daddy was doing "the nasty" to her. B.Z. said that when defendant took her and her brother home, defendant would put S.T. to bed in the bedroom and then bring B.Z. out on the couch. He would then take her panties down, remove his pants, pull his underwear down, get on top of her, and "pee pee" on her vagina. B.Z. told Berg not to tell defendant what she had related to Berg because defendant told B.Z. that he would "kick her ass if she said anything."
Berg stated that she instructed B.Z. to tell her mother about defendant's conduct after defendant left for work the next day. Berg did not try to telephone B.Z.'s mother at the time B.Z. told her about the conduct. Berg knew the mother had already left work for her second job, and Berg would be unable to contact her. Berg admitted that she did not contact the police, the Department of Children and Family Services, or any other State child welfare agency. Berg explained that she thought the correct procedure to follow in this instance was for B.Z. to tell her mother. Berg acknowledged that she had never known B.Z. to exaggerate or to tell fibs or lies.
Berg testified that B.Z. had cried on three prior occasions at Berg's house, saying that she did not want to go home with defendant. On those occasions, B.Z. did not give any reasons for not wanting to go with defendant. Berg acknowledged that when defendant arrived to pick B.Z. and her brother up on the date in question, B.Z. did not cry, did not run and hide or grab on to Berg, and did not refuse to accompany defendant.
B.Z.'s mother, Pamela T., testified that she had known defendant for 5 1/2 years and had lived with him about a year and a half prior to marrying him. At the time of trial the couple had been married one year. Pamela was employed as a nurse, working from 3 to 11 p.m. at one job and from 11 p.m. until 7 a.m. at another job.
Pamela recalled that after defendant left for work at noontime on June 27, 1991, B.Z. came into her bedroom, stating that she wanted to talk with her mother. B.Z. told her mother that defendant had been doing nasty things to her. When Pamela asked B.Z. what she meant by "nasty things," B.Z. explained that defendant had been making love to her by putting his penis in her vagina. B.Z. described how defendant would take her into the living room after he was certain S.T. was asleep in the bedroom, take her clothes off and undress himself, and then put her on his lap. He would then put his penis in her vagina and move her around on his penis. Pamela explained that B.Z. knew the correct terminology for the different parts of the body. Pamela had taught them to B.Z. after reading that children should learn the actual names of body parts.
Pamela stated that B.Z. said defendant had made love to her twice during the preceding night. B.Z. told her mother that she tried to run away from defendant, but he brought her back into the living room and "peed on" her again. When B.Z. threatened to tell her mother, defendant allegedly spanked B.Z., forced her face into a pillow, and told her that she better not tell. Pamela conceded that B.Z. did not cry when telling her about these incidents.
Pamela took B.Z. to the Vernon Hills police department after B.Z. agreed to tell the police about defendant's conduct. At the station, Pamela spoke with Detective Davies and Detective McPhee, who then talked to B.Z. alone.
According to Pamela, B.Z. did not exaggerate or lie and was not a mean person; she liked defendant. Pamela conceded that B.Z. accused defendant of placing his penis in her mouth but stated that this accusation occurred after Pamela and B.Z. had gone to the police department regarding the incident in question. Pamela acknowledged that she had not told the police of any additional statements made by B.Z. regarding sexual abuse.
Pamela recalled that in the past when she gave B.Z. a bath, she sometimes noticed swelling of her vagina and some rectal bleeding. She had not noticed any contusions or abrasions on the vagina.
Detective Drew McPhee of the Vernon Hills police department testified that he spoke with Pamela on June 27, 1991. Pamela related that B.Z. had told her about some incidents of a sexual nature involving the child and her stepfather. McPhee talked to B.Z. without Pamela present and asked the child to tell him what she had told her mother. B.Z. told McPhee that after defendant picked her brother and her up at Berg's house, he told her in the car that when they got home, he was going to do all the things he wanted to do with her. When B.Z. told him "no," defendant said he would "kick her ass" if she mentioned anything to her mother. After they arrived home, S.T. went to bed, and B.Z., wearing a green T-shirt, fell asleep on the living room couch. She was later awakened by her stepfather. B.Z. told McPhee that she tried to run from the living room to her bedroom, but defendant grabbed and took her to the couch. Defendant sat down on the couch, pulled down his underwear, placed B.Z. on top of him, straddling and facing him, and then inserted his penis into her vagina. According to B.Z., defendant made up-and-down motions with his hips until he "went pee." B.Z. did not indicate to the officer, nor could he recall if he asked her, how far defendant inserted his penis into her vagina.
After this incident, B.Z. said she ran to her bedroom and lay down. Defendant followed her and warned her not to tell her mother or else he would kick her ass. He then rolled her over on the bed and pushed her face down into the pillow. He also swatted her buttocks and rear portion of her legs three times with a flyswatter. Then, he brought B.Z. back to the living room couch, again pulled down his underwear, placed her, facing him, on top of him, inserted his penis into her vagina, and peed again. B.Z. said she got down and went to the bathroom to clean herself up with a washcloth. After that, she was allowed to go to her bedroom to sleep. When McPhee asked B.Z. how often this conduct occurred, she initially replied that defendant did this whenever her mother went to work but then limited the conduct to five times.
Detective McPhee acknowledged that B.Z. was not crying at the police department. She was not meek but appeared "normally shy for a five year old." The officer did not notice any bruises, cuts, or bleeding on B.Z. She walked with a normal gait and did not appear to be in any pain. Also, she did not tell him that her vagina hurt.
McPhee related that after interviewing B.Z. he took her to the hospital where she was examined for any sign of trauma to her vaginal area. While at the hospital, B.Z.'s purple and white underpants, which she indicated she had been wearing the preceding night, were taken and submitted to the Northern Illinois Crime Lab for testing.
Six-year-old B.Z. testified that defendant gives her bad touches when he picks her up at Berg's house and takes her home. She stated that defendant puts S.T. to bed and then makes love to her. B.Z. used anatomically correct dolls to demonstrate what defendant does to her.
B.Z. said that she remembered the night when she cried at Renee's after Renee told her defendant was going to pick her up. She recalled that she told Renee she did not want to go home with her stepfather because he would do "the nasty" with her. She explained "the nasty" meant to make love to her. B.Z. acknowledged that when defendant came to pick her up at Renee's house, she did not cry or try to hide but got into the car with defendant. B.Z. said that she did not tell Renee that she did not want to go with defendant because she could not say that out loud.
According to B.Z., defendant did not say anything on the drive home that night. At home defendant put S.T. to bed and told B.Z. to sleep on the living room couch. B.Z. said that defendant told her he was going to watch television but that he lied. Instead, he took off his clothes and B.Z.'s green T-shirt and purple and white panties and told her to sit on his lap. B.Z. recalled that defendant put his penis in her vagina and wiggled around. B.Z. said that whenever defendant makes love to her, he pees on her. B.Z. described the appearance of defendant's penis in its erect position and stated that she saw it enter her vagina although she could still see half of it. At one point, she demonstrated with the doll that only the tip of the penis entered her vagina. B.Z. recounted that it made her vagina turn red and burn.
It was B.Z.'s testimony that defendant told her that he would give her a candy bar if she did not tell anyone what he did. But, if she did tell, he would hurt her. B.Z. thought that defendant had made love to her six times in the past, but she was not certain. At one point, B.Z. acknowledged that defendant had made love to her six times on the night in question.
B.Z. stated that after defendant made love to her, she ran to her bedroom and got into the bed she shared with her brother. B.Z. whispered to herself that she was going to tell her mother, but defendant overheard her and came into the room. He pushed her head into the pillow and hit her with a flyswatter. B.Z. said that she was crying, but not loud, and her brother did not wake up.
B.Z. recalled that one time defendant showed her a "nasty movie" where the people got undressed and started making love. B.Z. stated that defendant told her it was on cable. But, B.Z. said, it was a tape. B.Z. indicated ...