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March 16, 1994


Appeal from the Circuit Court of Cook County. Honorable James M. Schreier, Judge Presiding.

Rehearing Denied April 13, 1994. As Corrected August 1, 1994. Petition for Leave to Appeal Denied October 6, 1994.

McCORMICK, Hartman, Scariano

The opinion of the court was delivered by: Mccormick

JUSTICE McCORMICK delivered the opinion of the court:

A jury found defendant, Troy Morgan, guilty of aggravated criminal sexual assault. The trial court ordered defendant to pay $1,800 restitution and sentenced him to 9 1/2 years in the Department of Corrections. Defendant contends that prosecutorial misconduct deprived him of a fair trial, he did not receive effective assistance of counsel, and the trial court erred by admitting hearsay testimony, answering a jury question and ordering restitution. We find that any errors had no prejudicial effect, so we affirm.

Defendant met B.J. in February 1987. B.J. was then living with her husband, Mr. J., and their three-year-old son, R.J. B.J. also had a daughter, Celise, from a previous marriage, who sometimes stayed with B.J. B.J. and R.J. moved out of the home in March 1987 and B.J. began dating defendant. Celise, who was then 12, stayed with B.J. and R.J. from May until August 1987. Shortly after R.J. turned four, in June 1967, B.J. had lung surgery which kept her hospitalized for two weeks. Although R.J. visited his father before and after B.J.'s hospitalization, he did not see his father for about five weeks through B.J.'s hospitalization and recuperation.

Mr. J. filed a petition for divorce from B.J. in November 1987. After R.J. came to visit his father on December 15, 1987, Mr. J. decided to seek custody of R.J. Mr. J. met Lynette Donerson, who needed a place to live, so he invited her to move into his home and help him take care of R.J. She moved in during January 1986. B.J. did not contest custody, so R.J. moved in with his father in February 1988, when the divorce became final. R.J. continued to stay over at his mother's home periodically.

Defendant moved in with B.J. in early March and married her on March 19, 1968. In late April 1988, R.J., Mr. J. and Donerson went to visit Mr. J.'s brother Paul and his wife and son. The next day Paul called Mr. J. to discuss R.J.'s behavior. Mr. J. told Donerson about the conversation, and Donerson had a Discussion with R.J. concerning sexual behavior.

On May 3, 1988, Donerson took R.J. to a nearby hospital whereDr. Orwen Mason examined him for signs of sexual abuse. Donerson then took R.J. to the local police station. The detective told her to set up an appointment for an evaluation at Mt. Sinai Hospital. Dr. Stanley Luke and Dr. Sharon Ahart examined R.J. on May 17, 1988, and concluded that he had been sexually abused. Police came to B.J.'s home that day and asked defendant to come to the station soon. When he arrived at the station the next day, police arrested him.

Prior to trial the State argued that statements R.J. made to Mr. J., Donerson, Dr. Luke, Dr. Ahart and the detective were admissible under section 115-10 of the Code of Criminal Procedure of 1963 (Code). (Ill. Rev. Stat. 1991, ch. 38, par. 115-10.) The prosecutor described the testimony he expected to educe. Defendant's attorney disagreed with the prosecutor's description of the expected testimony, and he objected to the testimony he anticipated from all witnesses except Mr. J. Based solely on the conflicting statements of counsel, and without hearing any evidence, the trial court decided that the witnesses apart from the detective could testify to statements R.J. made to them. The court found statements to Dr. Luke and Dr. Ahart admissible under section 115-13 (Ill. Rev. Stat. 1991, ch. 38, par. 115-13), because those doctors were treating physicians.

The trial court determined that R.J., who was seven at the time of trial, was competent to testify. Although R.J. remembered going to the hospital when he was four, he did not remember why he went. When his mother went into the hospital he lived with defendant and Celise. He did not remember being touched in a way he did not like. He started to answer questions about something that happened to him while B.J. was in the hospital, saying that it happened at night in the living room, but he could not say what had happened. He said he knew what the prosecutor was talking about, someone did something to him, but he would not answer more specifically.

After a recess R.J. answered that he remembered telling the prosecutor what had happened, and he remembered using dolls to show him. R.J. agreed that he had used a boy doll and a man doll to describe the incident. The prosecutor handed R.J. those dolls on the witness stand. R.J. said the boy doll was him, and he showed the man doll putting its penis in the boy doll's mouth and anus. When the incident he described happened, only R.J., Celise and defendant were in the home. No other man was present.

The prosecutor asked who did this to him. R.J. did not answer. The prosecutor asked if R.J. could point out the man who did this to him. R.J. said no, but he agreed that if the prosecutor pointed to him he could say yes. The prosecutor pointed to every male in the courtroom, and after pointing to each he asked R.J. whether thatman did that to him. R.J. said no to each male until the prosecutor pointed to defendant, and then R.J. said yes. The prosecutor asked if anyone else did that type of thing to him. R.J. said yes, a woman he had seen once in a restaurant did.

On cross-examination R.J. said that his mother had also done something similar to him, on the day she came home from the hospital. With dolls he showed that his mother undressed and laid on top of him, then took his penis in her mouth. Celise also laid on top of him. Defense counsel asked what the woman in the restaurant had done, and R.J. said she asked if he wanted something to eat. Counsel asked if that was the woman who did something bad to him and R.J. said, "[no], that was mom." He was not sure whether he lived at his grandmother's house while his mother was in the hospital.

Mr. J. testified that when R.J. visited him on December 15, 1987, while they were watching television, R.J. began moving his buttocks up and down and from side to side. Mr. J. asked what he was doing and R.J. said, "This is the way that Troy and momma got the pussy." R.J. then got up on his hands and feet, with his buttocks up in the air. His father asked what he was doing, and R.J. said that was how defendant made him stand when he "put his pee-pee in [R.J.'s] bubu." Mr. J. asked why he was telling him this, and R.J. said, "Daddy, I don't like that * * *. I just thought I would tell you."

Mr. J. thought that R.J. might have seen defendant having sex with B.J. and then imagined things, possibly because of the divorce. Mr. J. did not report the incident to the police or take R.J. to the hospital.

Mr. J. testified that after he and Donerson took R.J. to visit Paul J. 's family in April 1988, Paul called to tell him that Paul's son said R.J. asked to suck his cousin's penis. Paul said, "I don't know what they did to this kid over there. * * * You better get him some help." Defense counsel did not object to the testimony.

Donerson testified that R.J. engaged in inappropriate sexual behavior before the incident with his cousin in April 1988. Mr. J. told Donerson what Paul had told him about the incident, and Mr. J. asked Donerson to talk with R.J. about this behavior. The prosecutor asked Donerson what Mr. J. said Paul told him. The court overruled defendant's objection to the question, noting that the substance of the conversation was in evidence from Mr. J.'s testimony, and then directing the jury "not [to] consider it for the truth of the matter asserted. But the jury may consider it only insofar as it went to this witness' state of mind and as a reason for asking the questions she might have asked * * *[,] as an explanation of the content and the reason for the conversation."

Donerson testified that she told R.J. he should not let anybody touch certain areas of his body. She asked if anyone had done so. R.J. said no. She asked if he wanted to touch someone like that, and he again said no. She told him his cousin told them what R.J. had done the day before. She again asked, "Are you sure * * * no one has done that to you before?" He said, "Troy." Donerson asked what defendant did. R.J. said, "He put his pee-pee in my butt." In response to further questions, R.J. added that defendant "put his pee-pee in [R.J.'s] mouth" and "Celise] did the pussy" to R.J. by making him lick her vagina. He said both incidents happened while B.J. was in the hospital.

Dr. Mason testified that he was working at the hospital as part of his residency in family practice when he examined R.J. on May 3, 1988. He had examined about 10 other patients for signs of sexual abuse in the course of his training for family practice. He found no fissures, scars, abrasions, peeling or bruises near R.J.'s anus, and he found the rectal muscle tone normal. On his report he wrote that the tone was moderate, which to him meant the same as normal or average. Since Donerson brought R.J. to the clinic based on her suspicion of sexual abuse, Dr. Mason wrote "alleged sexual abuse" on the report as the diagnosis, and he informed the Department of Children and Family Services (DCFS) of the allegations, even though he found nothing in his examination to support the allegations. He agreed that a psychiatric evaluation would be useful for determining whether R.J. suffered sexual abuse. He did not discuss the allegations with R.J.

Dr. Ahart, a pediatrician working at Mt. Sinai Hospital, testified that she examined R.J. on May 17, 1988. In her work at the pediatric ecology unit she has evaluated thousands of children for various kinds of abuse, including sexual abuse. She found some skin in R.J.'s anal region peeling, and she found both a small bruise and a small scar. The scar had to be the result of an injury which occurred more than 14 days before the examination, but the bruise and the peeling could have had more recent causes. R.J.'s rectal tone was moderately relaxed, which is a somewhat abnormal finding. The bruise indicated an external cause, so it could not be a result of the constipation R.J. had suffered periodically since he was six months old. The physical findings were consistent with sexual abuse as well as other possible causes.

The personnel at the pediatric ecology unit worked together to evaluate and treat patients for sexual abuse, using psychological as well as physical examination as a basis for their opinions. Dr. Ahart in the course of her physical exam asked R.J. if anyone had touchedhis buttocks, or his "booty" as R.J. called it. R.J. said yes. She asked who and R.J. answered, "Troy." She asked what he had touched it with and R.J. answered, "his pee-pee." In response to further questions R.J. said defendant also put his penis in R.J.'s mouth. R.J. named no one other than defendant as responsible for improperly touching R.J. Dr. Ahart described R.J. as anxious and uncomfortable during the Discussion. She concluded, to a reasonable degree of medical certainty, that R.J. was a victim of sexual abuse.

Dr. Luke, a clinical psychologist in the pediatric ecology unit at Mt. Sinai Hospital, testified that he evaluated R.J. on May 17, 1988. He had evaluated perhaps 200 children for various forms of abuse and neglect. He allowed R.J. to play with toys while they talked. R.J. began to gyrate in a manner Dr. Luke considered sexual, but Dr. Luke did not ask about the movements. Later he asked R.J. if he had been hurt. R.J. became anxious, but he answered, "Troy stuck his pee-pee in my butt, it hurt." Because of R.J. 's anxiety, Dr. Luke stopped questioning on that issue. In Dr. Luke's opinion, R.J. "was sexually abused by a perpetrator that he named Troy." The trial court sustained defendant's objection to the part of the response after the finding of sexual abuse.

B.J. testified that when she went into the hospital for lung surgery Celise and R.J. stayed with B.J.'s mother. She took her children back to her home immediately following the surgery, although she had 54 stitches and remained heavily bandaged for weeks. R.J. began attending nursery school in December 1987, shortly before the visit in which his father first noticed his odd behavior. R.J. never saw B.J. engage in sex. Defendant never stayed overnight at her home before March 1988, when he moved in shortly before their wedding.

B.J. first heard about the alleged sexual abuse in March 1988, when she went to pick up R.J. from his father's home. Donerson asked R.J. to tell B.J. what he told her. R.J. said, "Troy put his peepee in my booty." B.J. did not believe R.J. She heard nothing more about the allegations until early May 1988.

Defendant also testified that R.J. and Celise stayed with B.J.'s mother while B.J. was in the hospital. Defendant never stayed overnight with B.J. before March 1988, when he moved into her home. R.J. never saw them engage in sex, and defendant never had ...

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