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09/30/94 PEOPLE STATE ILLINOIS v. STEFAN WROBEL

September 30, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
STEFAN WROBEL, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Brendan J. McCooey, Judge Presiding.

Petition for Leave to Appeal Denied February 1, 1995.

Tully, Rizzi, Cerda

The opinion of the court was delivered by: Tully

PRESIDING JUSTICE TULLY delivered the opinion of the court:

Defendant, Stefan Wrobel, appeals from the judgment of the circuit court, sitting without a jury, finding him guilty of the criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12-13(a)(3)) of M.J., the four-year-old granddaughter of defendant, for which he was sentenced to thirty-six months probation and ordered to make restitution of $2,560. Jurisdiction is vested in this court pursuant to Supreme Court Rule 603. 134 Ill. 2d R. 603.

On appeal, defendant submits that: (1) the State failed to prove him guilty beyond a reasonable doubt; (2) the trial court erred in admitting hearsay testimony under the corroborative complaint and treating physician exception to the hearsay rule; (3) he was denied a fair trial in accordance with due process of law when the complaining witness, a four-year-old child, was ruled competent to testify and then failed to answer questions on cross-examination; and (4) the trial court erred in failing to accept the presumption of innocence presented by the certain evidence.

For the reasons which follow, we reverse and vacate.

FACTUAL BACKGROUND

On March 13, 1989, the trial court heard defendant's pre-trial motion to determine the competency of M.J. to testify and found her to be competent. On June 21, 1989, the trial court heard the State's motion to determine the admissibility of hearsay testimony of four corroborative witnesses to the offense as provided for by section 115-10(a) of the Code of Criminal Procedure (Ill. Rev. Stat. 1987, ch. 38, par. 115-10(a)) and over defendant's objection allowed such testimony. On that same date, the trial court also granted the State's motion to hold the testimony of five corroborative witnesses admissible at trial.

On October 31, 1989, trial began and the State called M.J. and attempted to ask her some preliminary questions to which she was almost totally unresponsive. The trial court allowed her testimony to be recessed until the next day.

The next witness called by the State was Carlene E., M.J.'s aunt and sister to M.J.'s mother, Raydene J. On direct examination, Carlene testified that at around 8 a.m. on October 26, 1987, M.J. said she wanted to play a game and asked her to first "tickle me here" and pointed to her neck. Next, M.J. said "tickle me here" and pointed to her stomach. Finally, M.J. said "tickle me here" and pointed to her vaginal area. Carlene recounted that she then told M.J. that no one was supposed to touch that area and asked her who had touched her there. M.J.'s reply was "Dziadzia". Carlene stated that Dziadzia in the Polish language means grandfather and that the only person that she knew who was known by that term was defendant. However, at a preliminary hearing held on June 21, 1989, Carlene stated under oath that she never asked M.J. who "tickled" her genital area. When cross-examined on this inconsistency by defense counsel, Carlene's response was "I really don't remember."

Carlene further testified that Raydene was present at this Discussion and that as she was running late the morning that she told Raydene to "Look into it." Carlene then went to work.

Raydene testified that defendant was formerly her father-in-law. She was married to defendant's son Dariusz W. and that they had a daughter, M.J. Raydene stated that on the date of the alleged incident M.J. was 2 1/2 years old and that she, M.J. and Dariusz W. lived together with her former in-laws. Dariusz and Raydene divorced and Raydene subsequently married Abel J., who adopted M.J.

Raydene further testified that she had observed her sister's conversation with M.J. However, she did not immediately look into this situation; rather, she questioned M.J. "sometime during the course of the day" when they were in her car. Raydene stated that during their conversation in the car she asked M.J. if anyone touched her "there" and M.J. said "'No, just touch and tickle.'" Raydene recounted that she then asked M.J. if it hurt to which M.J. responded "'Yes.'" However, on cross-examination Raydene admitted that she testified otherwise at the June 21, 1989 hearing in which she stated M.J. indicated that she was not hurt by the "touch and tickle." Finally, Raydene added that all that M.J. indicated was "Touch ...


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