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03/14/94 PEOPLE STATE ILLINOIS v. D.R.R.

March 14, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
D.R.R., DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Ogle County. Nos. 91-CF-2, 91-CF-02. Honorable Robin A. Minnis, Judge, Presiding.

Quetsch, Woodward, Geiger

The opinion of the court was delivered by: Quetsch

JUSTICE QUETSCH delivered the opinion of the court:

The defendant, D.R.R., was charged with aggravated criminal sexual abuse (Ill. Rev. Stat. 1991, ch. 38, par. 12-16(c)(1)(i) (now 720 ILCS 5/12-16(c)(1)(i) (West 1992))) for committing an act of sexual conduct with his four-year-old daughter, E.R., by fondling her vaginal area for the purpose of his sexual arousal. He was also charged with 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))) for committing an act of sexual penetration with E.R. by placing his penis in her mouth. A jury in Ogle County found the defendant guilty of aggravated criminal sexual abuse but not guilty of aggravated criminal sexual assault. He was later sentenced to five years' imprisonment. The defendant appeals, contending that: (1) the verdicts are logically inconsistent and therefore the prosecution failed to prove him guilty beyond a reasonable doubt of aggravated criminal sexual abuse; and (2) the trial court erred in allowing hearsay testimony about E.R.'s statements to her mother, grandmother, a police officer, and doctor regarding details of the offense. We affirm.

Prior to trial, the court held a hearing pursuant to section 115-10 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1991, ch. 38, par. 115-10 (now 725 ILCS 5/115-10 (West 1992))) to determine whether to admit statements made by E.R. to her mother, grandmother, and Sergeant Jason White identifying the defendant as her abuser. Section 115-10 states in relevant part:

"(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 evidence shall be admitted as an exception to the hearsay rule:

(2) testimony of an out of court statement made by such child 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 for a sexual act perpetrated upon a child.

(b) Such testimony shall only be admitted if:

(1) The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and

(2) The child either:

(A) Testifies at the proceeding; or

(B) Is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement." Ill. Rev. Stat. 1991, ch. 38, pars. 115-10(a), (b) (now 725 ILCS 5/115-10(a), (b) (West 1992).)

At the hearing, A.C. testified that on December 8, 1990, her three children went to visit their father (the defendant) at his mother's house. When they returned home on December 9, E.R. was holding her vagina. A.C. decided to have her mother, G.C., a nurse's aid, look at E.R. A.C. and G.C. examined E.R. and observed that her vaginal area was red and inflamed. G.C. asked E.R. "who did this to you", and E.R. stated that it was her twin brother. G.C. said "no, I don't think so" and E.R. then stated that it was "[the defendant] probably with his long fingernails."

G.C. testified that A.C. brought E.R. to see her on December 9. Soon after they arrived, E.R. began holding herself. G.C. examined E.R. and found that the vaginal area was red and swollen and had scratch marks on it. She asked E.R. "who did this to you" and E.R. responded that it was her twin brother. G.C. again asked "who did this to you" and E.R. then said "no, grandma, [the defendant] did that to me with his long fingernails."

Jason White, a patrol sergeant for the Village of Mt. Morris, testified that on December 14 he and Judith Witkowski, a DCFS caseworker for the Department of Children and Family Services, went to E.R.'s house to investigate a report of sexual abuse. Sergeant White and Witkowski spoke with E.R. in her bedroom. During this conversation, he touched one of E.R's dolls in the crotch area and asked E.R. if this was a good touch or a bad touch. E.R. said that this was a bad touch. Sergeant White then asked her if anyone had ever touched her there, and E.R. replied that the defendant had touched her in that area.

The trial court subsequently determined that the time, content, and circumstances of E.R.'s statements to her mother, grandmother, and Sergeant White provided sufficient safeguards of reliability. The court ruled that these statements would therefore be admissible. The testimony of A.C., G.C., and Sergeant White at trial was consistent with their testimony at the section 115-10 hearing.

At trial, E.R. testified that the defendant had touched her with his finger on a part of the body which she did not want to be touched. When she was asked where on her body the defendant had touched her, E.R. pointed to her crotch. When she was asked if the ...


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