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March 14, 1994


Appeal from the Circuit Court of the 10th Judicial Circuit, Stark County, Illinois. No. 92-CF-1. Honorable Robert A. Barnes, Judge, Presiding

Released for Publication April 14, 1994.

Present - Honorable Kent Slater, Presiding Justice, Honorable Allan L. Stouder, Justice, Honorable Tom M. Lytton, Justice

The opinion of the court was delivered by: Lytton

JUSTICE LYTTON delivered the opinion of the court:

The defendant, Fonzie Rayburn, was convicted of aggravated criminal sexual abuse (Ill. Rev. Stat. 1991, ch. 38, par. 12-16(d)). He was subsequently sentenced to seven years' imprisonment. He appeals, and we affirm in part, reverse in part, and remand with directions.

The record shows that following the defendant's arrest, the defendant posted $10 towards his $5,000 bond, and his employer posted the balance. At trial, the complainant, 15-year-old J.B., testified that her mother was Lisa Rayburn and her stepfather was the defendant. She lived with them from the time she was in the fifth grade until the seventh grade. After that, she moved in with her father and stepmother in Eureka, Illinois. When J.B. moved to Eureka, she had visitation with her mother and the defendant every other weekend. She testified that the defendant would touch her breasts and genital area during some of her visits. On certain weekends, the touching was frequent. The last incident occurred on Thanksgiving of 1991, when the defendant approached her as she slept on the couch and touched her breasts and genitals. The victim reported the incidents to her mother and her Aunt Tina as they happened and to her stepmother after Thanksgiving of 1991.

Lonnie Dennison, the Sheriff of Stark County, recalled meeting with the defendant at the Sheriff's office on January 7, 1992, along with Jim Davis, an investigator for the Department of Children and Family Services (DCFS). When questioned about the allegations, the defendant first denied any such contact. He later claimed an accidental touching, and later still blamed his drug use for any touching. He ultimately acknowledged touching J.B. on the breasts and genital area twice, the last time being in November of 1990. The Sheriff then prepared a written statement which the defendant signed.

Three defense witnesses, Lisa Rayburn, J.B.'s brother M.B., and the defendant himself, all testified that J.B. and her brothers were with their father in Eureka on Thanksgiving of 1991 and were at the Rayburns' house only on the Saturday following Thanksgiving. M.B. further testified that he lived with his mother and the defendant. He said that J.B. never slept on the downstairs couch alone and that she never complained about the defendant. Rayburn added that J.B. had never mentioned the defendant's abuse. The defendant testified that he never touched J.B. inappropriately and insisted that he had been forced to confess because of angry threats made against him.

On rebuttal, Davis testified that the defendant had denied the allegations before ultimately admitting them. He also stated that the defendant had claimed excessive drug use before admitting that he had fondled J.B. twice.

The presentence report revealed that the 35-year-old defendant was steadily employed, as he had been for some time. This employment income, along with disability payments, public aid, and food stamps, supported the defendant, his wife, and two stepsons. According to the report, the defendant had received his G.E.D. certificate and had served in the military for three years. The report showed that the defendant's only prior convictions were for traffic offenses; it also contained letters of support for the defendant.

At the sentencing hearing, J.B. testified in aggravation that she had had nightmares and sleeping problems because of the abuse and that she was undergoing counseling. She also said that the abuse had damaged her relationship with her mother. Dr. Margaret Wolf testified that she counseled J.B. for an adjustment disorder related to sexual abuse. She found J.B. to be extremely quiet and depressed. Although J.B. had responded well to counseling, she needed to continue the visits. J.B.'s father also believed that counseling had helped J.B., though the $50 per session was difficult for the family to handle financially. K.M., a seventeen-year-old cousin of J.B., recalled visiting the defendant's house approximately six years earlier and saw the defendant open his robe and expose himself on two occasions.

The defendant's two stepsons testified in mitigation that they got along well with him. The defendant's wife testified to the defendant's medical problems: a heart condition and spots on his lungs. The defendant testified about his work history and stated that his employer had paid for his bond when he was charged with this offense. He had served in the military for three years but was discharged after developing a heart condition. He had recently been hospitalized for pneumonia and had tests done on his lungs.

The court noted in aggravation that children were involved in the offense. It then imposed a sentence of seven years of imprisonment and ordered that the posted bond money be used for court costs of $618, a mandatory fine to the Family Abuse Fund, and repayment of the victim's father for any past and future counseling for J.B.

On appeal, the defendant first argues that this court should reduce his seven-year term of imprisonment because the court overemphasized the offense and did not adequately consider the ...

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