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05/11/94 PEOPLE STATE ILLINOIS v. E.Z.

May 11, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
E.Z., DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lee County. Nos. 91-CF-185. Honorable Tomas M. Magdich, Judge, Presiding.

Rehearing Denied June 9, 1994. Petition for Leave to Appeal Denied October 6, 1994.

Quetsch, Bowman, Doyle

The opinion of the court was delivered by: Quetsch

JUSTICE QUETSCH delivered the opinion of the court:

Following a jury trial in the circuit court of Lee County, the defendant, E.Z., was found guilty of committing aggravated indecent liberties with a child (Ill. Rev. Stat. 1983, ch. 38, par. 11-4.1(b)(1)(C)) and aggravated criminal sexual assault (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 12-14(b)(1) (now 720 ILCS 5/12-14(b)(1) (West 1992))) against J.M., and he was sentenced to two concurrent terms of 12 years' imprisonment. On appeal, the defendant contends that: (1) the State failed to prove his guilt beyond a reasonable doubt; (2) the trialcourt erred by not conducting a hearing pursuant to section 115-10(b)(1) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1991, ch. 38, par. 115-10(b)(1) (now 725 ILCS 5/115-10(b)(1) (West 1992))) prior to admitting testimony about J.M.'s out-of-court statements in which she complained about the defendant's actions; and (3) the trial court abused its discretion when sentencing him. We reverse and remand for a new trial.

At the trial, J.M. testified to an incident that occurred around Easter in 1983, when she was eight years old. After getting up from bed to go to the bathroom, J.M. was walking back to her bedroom when the defendant (who was her stepfather at the time) asked her to kiss him goodnight. The defendant told her to sit on the bed, and he then pulled down her pajamas and underwear and placed his finger in her vaginal area for about 5 to 10 minutes. The second incident occurred in December of 1984, when she asked the defendant to zip up her pants zipper. The defendant laid her down on a couch and put his fingers inside her vaginal area for about five minutes.

Both J.M. and her mother, C.Z., testified that J.M. first told C.Z. about the defendant's sexual abuse in 1989, after C.Z. had divorced the defendant. J.M. stated that the reason she had not confided in her mother sooner was because the defendant had told her that C.Z. would not be able to provide for J.M. without his monetary support. J.M. testified that she had confided in several other people, though, including some friends, her "group" at a treatment center for drug and alcohol abuse, and her grandmother. The defendant testified at trial that he had never sexually abused J.M.

The jury found the defendant guilty of aggravated indecent liberties with a child and aggravated criminal sexual assault, and the trial court sentenced him to two concurrent terms of 12 years in prison. The defendant's first argument on appeal is that we should reverse his convictions because the State failed to prove him guilty beyond a reasonable doubt.

The defendant contends that the State did not meet its burden of proof because J.M.'s testimony was not substantially corroborated. While at one time the law in Illinois required that the victim's testimony must be clear and convincing or substantially corroborated to sustain a sex offense, that standard has been rejected. ( People v. Wych (1993), 248 Ill. App. 3d 818, 823, 187 Ill. Dec. 564, 617 N.E.2d 1285.) In sex offense cases, as in other criminal cases, the test to be employed on review when the sufficiency of the evidence is questioned is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Wych 248 Ill. App. 3d at 823.

We conclude that the jury in this case had sufficient evidence to find the defendant guilty of both charged offenses. In order to convict the defendant of aggravated indecent liberties with a child, the State had to prove: (1) that around Easter in 1983 the defendant had used his finger to penetrate J.M.'s genital opening "with the intent to arouse or to satisfy the sexual desires of either the child, the person, or both" (Ill. Rev. Stat. 1983, ch. 38, par. 11-4.1(b)(1)(C)); and (2) at the time of the offense, the defendant was 17 years of age or older and J.M. was under the age of 9 years. In order to convict the defendant of aggravated criminal sexual assault, the State had to prove that: (1) in December of 1984 the defendant had used his finger to penetrate J.M.'s sex organ; and (2) at the time of the offense, the defendant was 17 years of age or older and J.M. was under 13 years of age.

The State met its burden of proof on both offenses. The testimony at trial established that the defendant was over the age of 17 when the offenses allegedly occurred. At the trial, J.M. testified that around Easter in 1983, when she was 8 years of age, the defendant pulled down her pajamas and placed his fingers inside her vaginal area for about 5 to 10 minutes. J.M. testified that in December of 1984 (when she would have been either 9 or 10 years of age), the defendant placed his hand down her pants and put his fingers inside her vaginal area for approximately 5 minutes.

A complainant's testimony may be adequate to support a conviction of sexual abuse even where there are minor inconsistencies or discrepancies in her testimony. ( People v. Petitt (1993), 245 Ill. App. 3d 132, 138, 184 Ill. Dec. 766, 613 N.E.2d 1358.) Here, J.M. consistently testified that the defendant had abused her. Further, J.M.'s mother testified that after she divorced the defendant, J.M. told her of the defendant's sexual abuse. Although the defendant denied J.M.'s accusations, the trier of fact is in the best position to Judge the credibility of the witnesses. ( People v. Gordon (1993), 247 Ill. App. 3d 891, 902, 187 Ill. Dec. 245, 617 N.E.2d 453.) Viewing the evidence in the light most favorable to the prosecution, we determine that any rational trier of fact could have found the essential elements of the offenses of aggravated indecent liberties with a child and aggravated criminal sexual assault beyond a reasonable doubt.

This case is not like People v. Karmenzind (1991), 220 Ill. App. 3d 167, 162 Ill. Dec. 726, 580 N.E.2d 909, cited by the defendant in support of his argument that the State failed to prove his guilt beyond a reasonable doubt. In Karmenzind, the appellate court reversed a jury's verdict that the defendant was guilty of aggravated criminal sexual assault. Factors important in the court's determination that the defendant had not been proved guilty beyond a reasonable doubt included: (1) the complainant, C.K.'s, trial testimony differed in numerous ways from earlier versions of his story; and (2) the medical testimony established that C.K. had not been assaulted in the manner alleged. ( Karmenzind, 220 Ill. App. 3d at 176.) By contrast, J.M.'s trial testimony in the present case was not inconsistent with any earlier versions of the story, and there was no medical testimony which called into question the credibility of J.M.'s accusations of sexual abuse.

The defendant next argues that we should reverse and remand for a new trial because the trial court failed to conduct a hearing pursuant to section 115-10(b)(1) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1991, ch. 38, par. 115-10(b)(1) (now 725 ILCS 5/115-10(b)(1) (West 1992))) prior to admitting testimony about J.M.'s out-of-court statements in which she complained about the defendant's sexual abuse. The defendant has waived this issue by failing to raise it in his post-trial motion. (See People v. Enoch (1988), 122 Ill. 2d 176, 119 Ill. Dec. 265, 522 N.E.2d 1124.) However, we choose to address the merits of the argument under the plain error rule (145 Ill. 2d R. 615(a)) because, for the reasons that follow, we find: (1) the trial ...


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