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May 17, 1994


Appeal from the Circuit Court of Cook County. The Honorable Lester McCurrie, Judge Presiding.

As Modified on Denial of Rehearing June 28, 1994. Released for Publication July 14, 1994. Petition for Leave to Appeal Denied October 6, 1994.

DiVito, Scariano, McCormick

The opinion of the court was delivered by: Divito


Presiding Justice DeVito delivered the opinion of the court:

Following a jury trial, defendant Mario Guajardo was convicted of aggravated criminal sexual assault (Class X), two counts of criminal sexual assault (Class 1), and aggravated criminal sexual abuse (Class 2). He was sentenced to imprisonment for 18 years. On appeal, he raises issues of improper admission of hearsay evidence, improper closing argument on the part of the prosecution, and violation of the one-act, one-crime doctrine; he also challenges his sentence. For reasons that follow, we affirm in part, vacate in part, and remand for action consistent with this opinion.

Defendant was charged with sexually assaulting minor J.S. on or about December 23, 1987. Prior to his October 1989 trial, the court held a hearing pursuant to section 115-10 of the Code of Criminal Procedure (Ill. Rev. Stat. 1989, ch. 38, par. 115-10, now codified as 725 ILCS 5/115-10 (West 1992)), which became effective on January 1, 1988. The court heard defendant's arguments regarding limiting the testimony of three prosecution witnesses. The issues discussed included hearsay statements, applicable exceptions, and the extent of descriptive testimony where a witness was allowed to testify. The circuit court contacted Springfield for legislative history on the issue of whether details of the assaults could be repeated by outcry witnesses. The court concluded that the legislature intended to expand the perimeters of the hearsay exception to allow witnesses to identify defendants and include facts of the assault in their testimony. It outlined the requirements and restrictions of an evidentiary hearing and determined which witnesses would be required to testify. The court heard argument as to whether the victim's mother, Judy S., could testify under the admission exception regarding statements made to her by defendant, ruling that she could because defendant's acts and deeds could be construed as an admission. The court also made its ruling subject to change if defendant could produce caselaw stating that an admission had to be unequivocal.

On October 18, 1989, a jury was empaneled. The next day, outside the presence of the jury, the court held an evidentiary hearing for potential witness Tarik Dwiek. Dwiek testified that he was 15 years old, and that his grandmother lived in the apartment above the juvenile complainant, J.S., on 72nd Street in Summit. J.S. lived with his mother, defendant, and his twin sisters in the downstairs apartment. Dwiek identified defendant in court.

Dwiek stayed with his grandmother over the Christmas holiday in 1987. On one afternoon, on or near Christmas day, he and J.S. talked and played board games in the grandmother's living room, while she slept. Dwiek saw a piece of mail addressed to defendant on the coffee table, and told J.S. that the mail belonged downstairs. Dwiek "asked [J.S.] how he liked [defendant], if he was cool." J.S. then made statements implicating defendant.

On cross-examination Dwiek stated that J.S. told him "he didn't like [defendant] very much." He told Dwiek that "he didn't like [defendant] because he made him suck his pecker." Dwiek told J.S. to tell his mother.

The circuit court found Dwiek to be a reliable witness, and stated that 13-year-old boys do not keep diaries. The date provided by Dwiek was sufficiently close in time and place in relationship to the event charged, and Dwiek's statement was reliable.

The court also examined J.S. outside the presence of the jury. J.S. stated that he was nine years old and attended the fourth grade at Wilkens Grammar School. He understood the difference between the truth and a lie, and knew that if he lied he would get into trouble. He also knew that the prosecutor was there to help him, and that defense counsel was there to help defendant. The court found J.S. competent to testify.

Following opening statements, J.S. testified for the State. He was nine years old, and in 1987 he had been seven years old and in the second grade. He lived in Summit, Illinois. In 1987 he lived with his mother, twin sisters, and defendant, whom he identified in court.

On December 23, 1987, defendant picked him up at about 8 p.m. and drove him to a nearby Zayre store to buy a present for his friend Connie Alousch. J.S. stated,

"[Defendant] stopped the car and we were on a stop sign, I mean stoplight, and he took out his pecker and he said, 'Do you want it?' And I said, 'No,' and he pulled my hair and started--he pushed--he pushed it on it and he moved my head up and down and then he said, 'Yeah,' and then we drove to Zayre."

J.S. clarified the term "pecker" to mean penis.

J.S. was unsure how long the incident took, but he remembered it happened in the car. He was sitting with his head over defendant's penis. Following the incident, defendant dropped J.S. off at home.

There was another incident involving defendant that took place in J.S.'s mother's bedroom, where defendant "put white stuff in [J.S.'s] mouth." The "white stuff" came from defendant's penis. Defendant told J.S. that the incident was to be a secret.

There were five or six other such incidents as well. Defendant once told J.S. to kneel down while in the bathroom, and asked him, "Do you want it?" When J.S. replied that he did not and moved backwards, defendant "pulled [him] back by [his] head and he put--pushed [his] head on to it." There was no semen during that incident.

Another incident occurred when defendant was sitting on the couch in his shorts and J.S. went into the living room to watch television. Defendant again asked J.S., "Do you want it?" J.S. answered no, and defendant pushed J.S.'s head down towards his penis and told J.S. to "lick it like it was a lollipop."

J.S. told Dwiek about the incidents. He told Dwiek, "I don't like [defendant] anymore because he made me suck his pecker." J.S. told Dwiek instead of his mother because she often took defendant's side in disagreements between them. Shortly after he told Dwiek about the latest incident, J.S. told his mother. When J.S. told his mother, she called and told defendant that J.S. "wouldn't do it anymore." Defendant then came to the house, J.S. told him that he "wouldn't do it anymore," and J.S. ran to his room.

Although J.S. no longer trusted defendant, they had gotten along well in the past. On the day he told his mother about the incidents, he talked to the police. Later that day he went to the hospital and stayed there for two months.

On cross-examination, J.S. stated that he did not tell two of his friends about the incidents because he did not share secrets with them. He later told another friend, Tony, with whom he does share secrets. His mother had slapped him once when he lied, and she had hit him once on the behind with a curtain rod. Those two punishments were the most physical his mother had ever administered. The hit on the behind with the curtain rod was at least two years prior to the incidents involving defendant.

The last incident occurred on December 23, 1987, and J.S. told Dwiek about it a few days later. J.S. further described how defendant had laid on top of him and "stuck his pecker up [his] butt" while J.S. was lying on his mother's bed. It made him cry, but he could not remember any pain and did not remember if his "butt" was sore the next day. Defendant had once made him "suck his pecker" while J.S.'s mother was on the telephone talking to his grandmother.

When defendant put J.S.'s head on his pecker in the car, there were other cars around; defendant had repeated the act while in the store parking lot. Prior to telling his mother about the incidents, she had taken defendant's word over his own where their two stories conflicted, and he was punished. This was the first time his mother believed him over defendant. When he told her about the incidents, he told her everything.

When questioned about baths he used to take with his friend Tony, J.S. stated that he always did so, and that they played with their "He-Man" toys together. They did not touch one another, but simply played in the tub.

On redirect examination, J.S. explained that he was five or six years old when he took baths with Tony, and that they played in the bathtub. The prosecutor had told him to tell the jury that defendant frequently hit him and his mother, and that he was afraid to tell his mother because defendant had a gun and always hit him on the back of the head. He was also told to stay calm and tell the truth.

At first he did not know what was happening to him, because he was young and didn't know what defendant was doing. He never fought defendant because defendant was bigger than he was.

Dwiek testified that he was 15 years old, and that in 1987 he spent most of his Christmas vacation with his grandmother. He and J.S. played board games and talked. He asked J.S. whether he liked defendant, "if he was cool." J.S. told him that "he didn't like him because he made him suck his pecker." Dwiek told J.S. to tell his mother.

On cross-examination Dwiek stated that J.S. was like a little brother to him. He was afraid for J.S., and believed him because a "little kid like that wouldn't tell a lie like that." He did not tell his grandmother because he felt it was best that J.S. tell his mother.

Judy S., J.S.'s mother, testified that she had lived with defendant for two years. Her twin daughters turned eight months old in December of 1987. The day of the incident complained of, defendant took her to work in his car and offered to take J.S. to buy a Christmas present for his friend Connie. Later defendant picked her up from work, and told her J.S. had bought a stuffed animal for Connie at Zayre.

She had noticed her son exhibiting unusual behavior for a little over a year, beginning three or four months prior to her pregnancy. He was despondent, his grades were sporadic, and he followed his teacher around and wanted to sit close to her. Prior to this behavior, he had earned straight A's in school. He also had nightmares, complained he did not feel well, and wanted to quit playing soccer.

On January 10, 1988, at about 7 p.m., she was in her living room and Connie Alousch, who was living upstairs, told her J.S. had something to tell her. A few minutes later, he came downstairs and told her that "he didn't want to do it anymore." He told her that he did not want to have "to put [his] mouth on [defendant]'s pecker anymore." He then told her about the incidents, and told her he was scared.

She told J.S. that they would go to the police, she called a sitter for the twins, and told J.S. to put on a shirt. Defendant then called her, because they had plans to go to the movies, and she told him she was not going. She further told him not to "step foot" in the house. She told defendant that J.S. had told her everything. Defendant repeatedly said, "[J.S.]'s a liar." Then he said, "What did he say, he's lying."

J.S. then came into the room and said, "Ma, I'm not lying." She handed him the phone and he told defendant, "I told my mom, I told her everything and I'm not going to have to do it anymore." She hung up the phone and prepared to go to the police station. Defendant then opened the door of the apartment with his key, and she blocked the doorway. Defendant told J.S. to tell his mother he was lying. She told J.S. to run, and then struggled with defendant to keep him from going further into the house. She told him to leave, and that the sitter was bringing the police.

Defendant went down on his knees and looked up at her and said, "Jude, don't do this to me, please, Jude, don't do this to me. It will kill--when I think about my family, it will kill my grandmother." She described defendant as teary-eyed, emotional, upset, scared, and sober. She asked defendant how he could do this to her. Defendant then said, "Anything that I could say, anything that I could say wouldn't make any difference, please don't do this to me, my family, think about my family." When the babysitter arrived, defendant left through the front door.

Later the same day, defendant called Judy S. while the police were in the house, and told her he would leave the state and move to Texas. He would send her money if she would not go to the police. She never told defendant any details of J.S.'s statements, just that he "had told her everything."

On cross-examination, Judy S. stated that although she met defendant when she was working as a bartender when she was seventeen years old, she had worked as a legislative correspondent on Capitol Hill. The last time she had tended bar was two and a half years ago. Defendant was married when she began her relationship with him in 1985, and she had never been married. She and defendant fought frequently, but she did not fight with her son because she was his mother.

She had reprimanded J.S. with spankings or with having him stand in the corner. Once while hanging curtains she had swatted him with a curtain rod because he continued bothering the curtains, about which he had been repeatedly warned, and almost knocked down the ladder. She reprimanded him only when necessary.

J.S. was allowed to come into her bedroom only when she and defendant were talking, sleeping, or reading. He never witnessed intimate relations between herself and defendant.

She had usually believed defendant when there were different stories from him and J.S., because defendant was the adult. She began believing J.S. when defendant slapped his face hard enough to turn it red, but J.S. did not change his story to agree with defendant. On another day, she had heard defendant use profanity toward J.S., and when she confronted him on the issue he denied the accusation.

She had not checked J.S.'s anal area because at that point she only knew about the oral incidents. The reason she did not leave immediately for the police station was that she needed to wait for the babysitter to arrive. It was necessary for her to work to pay the bills, since defendant was unemployed for most of the two years they lived together. Defendant's actions toward her son hurt her. She reported to the police that defendant offered her money not to pursue the case against him. At her request, an officer spoke to defendant about calling her home.

Dr. Sonia Yballe gave medical testimony for the State. She testified that she was a board certified child psychiatrist. The court accepted her as an expert witness. J.S. was her patient in 1988. Following a psychiatric interview with him she found that he suffered from severe anxiety, depression, an inability to sleep or concentrate, agitation, and deterioration in overall functioning. These are symptoms indicative of post-traumatic stress disorder. He was hospitalized at Mount Sinai Hospital for a five day evaluation, and was then held in the children's psychiatric program for two months. Post-traumatic stress disorder can be brought about by sexual abuse, and it is common for children to delay reporting such abuse.

On cross-examination, Yballe testified that she was J.S.'s primary doctor, although her program takes a team approach to patient care. She remembered treating him. All of J.S.'s symptoms were written in his chart, and those symptoms indicated that he suffered from post-traumatic stress disorder. She conceded, however that she did not remember ever writing down that J.S. had post-traumatic stress disorder, nor did she ever write down that J.S. was sexually abused. J.S.'s symptoms differ from a general anxiety disorder. "The deterioration in school performance was caused by his depression and anxiety. The anxiety and depression was caused by the stress factor that he had experienced." J.S. suffered definite depression as a result of sexual abuse. Yballe testified that she believed J.S. was sexually assaulted, and that her opinion was based upon his behavior, symptoms, and statements. She recalled that J.S.'s mother was extremely angry, hostile, and bitter. Following her testimony, the State rested.

Defendant testified on his own behalf. He was 33 years old, and at the time of trial lived in Summit with his wife and four children. He was married at the time he met Judy S., and she told him she was in the process of divorcing her husband. When his wife found out about their relationship, he moved in with Judy S. His relationship with J.S. deteriorated as he spent more time with Judy S.

Defendant found J.S. lying on top of his friend Tony in bed naked. Judy S. hit J.S. with a curtain rod because of this incident, and defendant had to stop her from beating J.S.

On December 23, 1987, Judy S. told him to take J.S. shopping, which he did. Nothing out of the ordinary happened. The Sunday following New Year's Day, Judy S. confronted him with the supposed sexual assault on J.S. Judy S. called him at his mother's house, and told him "this and that" about what J.S. had told her. She called him a "coldhearted bastard," and asked what he had been doing with her son. She had heard that he had made J.S. "suck [his] pecker."

Defendant told her to call the police, and went over to the house. Judy S. attempted to block his entrance, but he went inside and picked up one daughter. He denied saying that he would be a disgrace to his family, but admitted saying, "Anything I say won't matter." Defendant called J.S. a liar. He turned himself in to avoid being arrested in front of his children.

The parties stipulated that Mohammad A. Tahir, a forensic scientist, would have testified that a "Vitullo" kit completed June 16, 1988, six months following the last alleged assault on J.S., which included swabs seeking blood or sperm, were negative. The defense then rested.

The court held a jury instruction conference, and the parties made closing arguments. The court instructed the jury. Defendant was found guilty of aggravated criminal sexual assault, aggravated criminal sexual abuse, and criminal sexual abuse. The jury was polled and discharged.

On November 9, 1989, defense counsel requested defendant's bond be exonerated for payment for services. On November 21, 1989, Judy S. stated in court that defendant's family and friends were threatening her at home and shouting at her in court.

On December 5, 1989, the court heard defendant's motion for a new trial and denied it. Following evidence presented in aggravation and in mitigation, defendant asked the Judge to look at his young daughter and other children, in order to ...

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