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05/25/94 PEOPLE STATE ILLINOIS v. ARTHUR T. GILES

May 25, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
ARTHUR T. GILES, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Macon County. Nos. 91CF499, 92CF427. Honorable Jerry L. Patton, Judge Presiding.

As Corrected July 7, 1994.

Honorable Robert J. Steigmann, J., Honorable Robert W. Cook, J., Honorable Frederick S. Green, J.

The opinion of the court was delivered by: Steigmann

JUSTICE STEIGMANN delivered the opinion of the court:

In September 1992, a jury found defendant, Arthur T. Giles, guilty of two counts of aggravated criminal sexual assault in violation of section 12-14(b)(1) of the Criminal Code of 1961 (Criminal Code) (Ill. Rev. Stat. 1991, ch. 38, par. 12-14(b)(1)). Based upon these convictions, the trial court also found that defendant had violated the terms of the probation that he was serving at the time arising from a separate, unrelated conviction for unlawful possession of cannabis with intent to deliver. In November 1992, at a joint sentencing hearing, the court sentenced defendant to two consecutive nine-year prison terms on the aggravated criminal sexual assault convictions and to a four-year prison term on revocation of probation in the unrelated possession case, to run concurrently to his other sentences.

Defendant appeals, arguing that the trial court (1) improperly admitted evidence of out-of-court statements made by the victim's mother to medical personnel under section 115-13 of the Code of Criminal Procedure of 1963 (Procedural Code) (Ill. Rev. Stat. 1991, ch. 38, par. 115-13); (2) improperly allowed testimony from a police officer regarding statements made by the victim based upon use of anatomically correct dolls; (3) erred in instructing the jury; and (4) erred by not appointing new counsel to assist defendant in a post-trial motion alleging ineffective assistance of counsel. Defendant also argues that if this court reverses his convictions for aggravated criminal sexual assault, then we should vacate the revocation of his probation based solely upon those convictions.

We affirm.

I. BACKGROUND

On May 17, 1992, the victim's mother, Lacinda Tucker, came home at about 1:30 a.m. As she approached her apartment, she heard her three-year-old daughter, A.T. (the victim), loudly crying. After Tucker entered her apartment, A.T. told Tucker that defendant had sexually abused her. Defendant had been in Tucker's apartment watching her two children in her absence. As defendant slept, Tucker retrieved both of her children and left the apartment. Later that morning, Tucker went to the police station and informed them of A.T.'s claim of sexual abuse.

Consequently, in May 1992, the State charged defendant with two counts of aggravated criminal sexual assault of A.T. These counts alleged that defendant committed acts of sexual penetration with A.T. by placing an object in her vagina and by placing his penis against her vagina. The State also filed a petition to revoke defendant's probation, alleging that he violated the terms of his probation by committing these crimes. Defendant was on probation on his September 1991 conviction of unlawful possession of cannabis with an intent to deliver (Ill. Rev. Stat. 1991, ch. 56 1/2, par. 705(d)).

Prior to defendant's trial, the parties agreed that the trial court could consider the evidence presented at trial on the issue of whether defendant violated conditions of his probation. Also prior to trial, the court found A.T. incompetent to testify.

At trial, Tucker testified that on May 16, 1992, she lived with her two children in an apartment, and defendant lived next door. Her sister worked at a nearby restaurant, and typically,Tucker would pick her sister up in the early morning after she finished working. Usually Tucker's father would come to her apartment and watch her children while Tucker went to pick up her sister from the restaurant.

Tucker testified that on this particular evening, her father did not show up to watch the children. Tucker had to pick her sister up around 2 a.m., so when defendant returned to his apartment around 1:30 a.m., Tucker discussed the situation with him. Tucker had known defendant, whose nickname was "Bubby," for about two years, and they were friends. Defendant offered to watch her children while she went to pick up her sister, and Tucker agreed. When she left the apartment, A.T. was asleep on the couch in the living room, and defendant was sitting on the bed in Tucker's bedroom. Tucker locked the door to her apartment as she left.

When Tucker arrived at the restaurant to pick up her sister, she was unable to leave work, so Tucker returned home, parking her car in a lot across the street from her apartment. When she got out of her car, she heard A.T. crying and quickly went to her apartment. Once she got inside, she picked up A.T. and asked her what was wrong. A.T. then told her that "Bubby had tried to stick his dinker in my beaver." Tucker explained that "dinker" meant penis and "beaver" meant vagina.

Upon hearing this, Tucker took A.T. into the kitchen and asked A.T. if she could tell her anything else. Tucker also looked under A.T.'s nightshirt and noticed that she was no longer wearing her panties. She recalled that when she put A.T. to bed on the evening of May 16, A.T. was wearing a long T-shirt and a pair of panties. Tucker then tried to pull A.T.'s legs apart to examine her, but A.T. refused, stating "no, it hurts." Tucker testified that A.T. told her that defendant also tried to put his finger into her vagina. Tucker did eventually observe a portion of A.T.'s vaginal area, and she described it as being red and irritated, but not a rash. Tucker explained that she had never seen any redness in A.T.'s vaginal area prior to this examination.

Tucker testified that she retrieved A.T.'s panties, put them on her, and went into her bedroom, where she found defendant asleep in bed. Tucker attempted to awaken him, and she confronted him with A.T.'s allegations. However, he would not respond to these allegations; Tucker explained that he "just blew me off." At this point, Tucker retrieved A.T. and her other child and immediately left her apartment.

Tucker took her children to a friend's home and then went back to pick her sister up from the restaurant. After getting her sister, Tucker drove to her mother's house. Tucker's mother, Sue Hedding, convinced her to go to the police station and report A.T.'s allegations. However, Tucker first drove to her apartment and again confronted defendant, who was again asleep. Defendant again did not respond to her questions about A.T.'s allegations, so Tucker left and went to the police station. The police asked Tucker to bring A.T. to the hospital.

Cathy Barr, a registered nurse at Decatur Memorial Hospital, testified that on the morning of May 17, 1992, she examined A.T. regarding A.T.'s allegations of being sexually abused. Prior to examining A.T., Barr briefly discussed A.T.'s allegations with Tucker in order to obtain information to diagnose and treat A.T. Tucker told her that after she had come home, she heard A.T. crying, went up to her apartment, and found A.T. was not wearing any panties. Tucker then related that A.T. said defendant tried to "put his dinker in [A.T.'s] beaver." Additionally, Tucker also told Barr that A.T. said defendant put her on the bed and tried to put his penis in her vagina.

Barr testified that she next discussed this matter directly with A.T. Initially, A.T. was very shy and would not interact. After quite some time, A.T. finally began talking with Barr, and Barr asked her if she hurt anywhere on her body. First, A.T. told her that her knees hurt because she had fallen a couple days before. Barr asked A.T. if she hurt anywhere else, and she responded that "[my] beaver also hurt." Barr asked A.T. what happened to her vagina to make it hurt, and A.T. told her that "[Bubby] tried to put his dinker in my beaver." A.T. then explained to Barr that she was asleep on the couch when defendant woke her, took her to her mother's bed, removed her panties, and then tried to put his penis in her vagina. A.T. further explained that she cried because she did not like what defendant did to her and because she could not find her mother after defendant had done it.

Barr testified that she then briefly examined A.T. At that point, the emergency room physician, Dr. Steven Beltz, arrived to examine A.T. As he did so, Barr observed that A.T.'s vaginal area was quite red, specifically the inner labia portion of her vagina. Barr also noticed that A.T. had a bruise on one of her arms, as well as abrasions on both knees.

Beltz testified that before he examined A.T., he spoke with both Barr and Tucker. Tucker told him that she left A.T. with a boyfriend while she stepped out of her apartment for a short period of time. Tucker further told him that when she returned, she heard A.T. crying, A.T.'s underwear -- but not A.T. -- was on the couch, and A.T. complained that Tucker's boyfriend had done something to her. Beltz noted that Tucker specifically stated that A.T. told her that the boyfriend tried to put his penis in A.T.'s vagina.

After Beltz obtained this information, he examined A.T.'s vaginal area to determine if she had been injured in a manner consistent with her allegations. Dr. Beltz noted two specific findings from his physical examination pertinent to her allegations. First, he found a bruise on A.T.'s left forearm near her wrist that was the size of an adult thumbprint. He testified that this bruise was "fresh," having been ...


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