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02/03/94 PEOPLE STATE ILLINOIS v. THOMAS WEST

February 3, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,
v.
THOMAS WEST, APPELLEE.



Nickels

The opinion of the court was delivered by: Nickels

JUSTICE NICKELS delivered the opinion of the court:

Defendant, Thomas West, was tried by a jury in the circuit court of Lake County and convicted on two counts of aggravated criminal sexual abuse (Ill. Rev. Stat. 1989, ch. 38, par. 12-16(c)(1)(i)). One count alleged that defendant rubbed his penis against victim's buttocks, while the other alleged that he rubbed her pubic area with his hand. The trial court sentenced defendant to a term of three years in the Department of Corrections. The appellate court reversed. 234 Ill. App. 3d 578.

Prior to trial, defendant filed a motion in limine to exclude part of the testimony of Officer Ralph Henriquez. Henriquez interviewed complainant, S.W., on the day of the alleged abuse and intended to testify as to hearsay statements she made to him on that occasion. At trial, the Judge conducted a hearing, outside the presence of the jury, to determine whether this testimony was reliable, as required by section 115-10 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 115-10). The trial court found the hearsay statements to be reliable and allowed Officer Henriquez to testify about them before the jury.

Prior to trial, defendant also made a motion to suppress a written statement which he had signed in the presence of Officer Henriquez. The trial court conducted a hearing on defendant's motion to suppress. At the hearing, Henriquez testified that defendant made the statement after being given Miranda warnings and that defendant had not been coerced in signing the statement. Defendant testified that he signed the statement only because Henriquez told him he would be treated more leniently if he did. On cross-examination, defendant acknowledged that Henriquez had not used threats to convince him to sign. The trial court denied the motion to suppress.

At trial, complainant, S.W., testified that on August 30, 1989, she resided with several relatives, one of whom was defendant, her uncle. S.W. stated that, on that day, she was in the basement of her house, looking for some clothes to wear. While she was looking for clothes, defendant entered the basement from upstairs to do his laundry. According to S.W., after starting the washing machine, defendant went to his room, which was also located in the basement, came out, and showed S.W. several pictures of a naked woman.

S.W. testified further that after showing her these pictures, defendant approached her and touched her "behind" with his penis. She was fully clothed during the alleged incident. S.W. testified that, after the incident, defendant called her over to his bedroom. S.W. went over to the curtain partition that served as the door to his room, where she saw defendant with his pants down, exposing his penis to her. According to S.W., defendant signaled her to come to him, but she became frightened and ran upstairs. In response to defendant's questioning on cross-examination, S.W. stated that defendant did not touch her anywhere else.

David W., S.W.'s father, testified that on August 30, he received a call at work from his son, David, Jr. David, Jr., told his father that defendant had fondled S.W. in some way. David W. told his son to accompany S.W. to his fiancee's house, and he would meet them both soon. The police were later notified.

Officer Henriquez testified that he interviewed S.W. at the Waukegan police department at about 8 p.m. on August 30. S.W. told Henriquez she was playing downstairs when defendant came down to do his laundry. After S.W. had helped defendant with the laundry, defendant "walked up behind her and bumped up against her." In addition, S.W. told Henriquez that defendant "bumped his private part against her rear private part." S.W. also told Henriquez that defendant placed his hands on her stomach and over her pubic area. Henriquez testified that, after touching S.W., defendant showed her pictures of a naked woman. Later, defendant called S.W. over to his room and exposed his penis to her. S.W. told Henriquez that defendant then gestured for her to come to him, but she became frightened and ran upstairs.

Henriquez testified that he next interviewed defendant. Henriquez told defendant about the conversation he had had with S.W. and asked defendant if her statements were true. According to Henriquez, defendant admitted S.W.'s statements were true. Henriquez testified that he then typed a statement which defendant signed. In the statement, defendant admitted rubbing his penis against S.W.'s buttocks and rubbing her pubic area with his hand.

Defendant called several witnesses at trial, mostly family members, who testified that S.W. had told them each a different version of the event. Patricia Hagler, defendant's sister, testified that S.W. twice denied to her that defendant had touched her. Bianca Jones, another of defendant's sisters, testified that S.W. denied that defendant molested or touched her but, rather, had only bumped her. S.W. also told Jones that defendant's pants were down "a little bit." On cross-examination, Jones testified that S.W. told her that defendant had "bumped up against" S.W. with his penis.

David Asma, an investigator with the Lake County public defender's office, testified that he spoke to S.W. in the presence of her father. S.W. told Asma that defendant showed her pictures of a naked woman but denied that defendant had touched her at all. Polly W., defendant's mother, testified that she was present when Asma interviewed S.W. She heard S.W. say that defendant bumped her, but S.W. did not say that defendant rubbed against her with his penis.

Defendant was convicted on both counts of aggravated criminal sexual abuse. Defendant appealed, and the appellate court reversed the convictions. The State raises two issues on review: (1) whether a defendant should be allowed to elicit opinion evidence or evidence of past instances of untruthfulness when impeaching a child witness for truthfulness; and (2) whether section 115-10 requires a trial court to specifically state its reasons for finding hearsay statements reliable before admitting them. Defendant raises an issue for review if we decide that the trial court was not required to state its reasons for finding reliability. In such instance, defendant urges us to find that S.W.'s statements to Henriquez were unreliable.

I

The State first argues that the appellate court erred in finding that a portion of Bianca Jones' testimony was improperly excluded. The relevant part ...


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