APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE CHRISTY S. BERKOS, PRESIDING.
As Corrected May 15, 1995. Released for Publication May 26, 1995.
The Honorable Justice Braden delivered the opinion of the court: Buckley and Wolfson, JJ., concur.
The opinion of the court was delivered by: Braden
JUSTICE BRADEN delivered the opinion of the court:
After a jury trial in the circuit court of Cook County, defendant, Gregory Calahan, was convicted of aggravated criminal sexual assault (720 ILCS 5/12-14(a)(1)(West 1992)), and sentenced to a 16-year term in the Illinois Department of Corrections.
On appeal, defendant contends (1) his sentence was excessive; (2) section 5-4-3 of the Unified Code of Corrections (Code) (730 ILCS 5/5-4-3 (West 1992)) is unconstitutional; and (3) he was improperly certified as a child sexual offender under sections 1 through 10 of the Child Sexual Offender Act. 730 ILCS 150/1 et seq. (West 1992).
S.B., the seven-year-old daughter of defendant's girlfriend, testified that she, her twin sisters and their mother would stay overnight at defendant's apartment on occasion. Shortly before her fifth birthday, S.B. was sleeping in defendant's living room when defendant touched her on the stomach. At the time S.B. was wearing a T-shirt, panties and pajamas.
The victim's maternal grandmother testified that in October 1991, the victim and her twin sisters were placed in her home by the Department of Children and Family Services (DCFS) because their mother had neglected them. In December of that year, the victim's aunt took her to Children's Memorial Hospital because she was experiencing discomfort while urinating.
Dr. Amy Middleman testified that on December 21, 1991, she examined S.B. The doctor found that the border of the hymen was irregular and significantly scarred suggesting some type of trauma. In her opinion, the victim's injuries were consistent with digital penetration of the vagina. The doctor then notified the police and DCFS.
In January 1992, after an assistant State's Attorney interviewed S.B., Officer Frank Folinazzo went to defendant's residence. The officer then brought defendant to police headquarters. After advising defendant of his Miranda rights, an assistant State's Attorney interviewed defendant. Defendant stated that while he and S.B's mother were sleeping, the victim came into their room and lay down on the mattress next to defendant. He put his arm around her and started rubbing her stomach with one hand. He then inserted the index finger of his right hand into her vagina, up to the second knuckle, moving his finger in and out for less than 10 seconds. He stated that his finger went in "pretty easy." Defendant's oral statement was later reduced to writing which he signed.
Defendant testified that, while he was dating the victim's mother, she, the victim and her two sisters would spend the night at his apartment. He stated that the had a good relationship with the children and on those occasions when they stayed overnight, he would sleep on the living room couch. His girlfriend and her daughters slept in the bedroom. He denied that any of the children ever slept with him and their mother in the living room, although the victim sometimes got into bed with them on Saturday mornings to watch cartoons. Defendant testified that at no time did the victim ever complain that she was having any kind of pain or discomfort.
He first became aware of the victim's allegations when police came to his house and took him to the police station. He stated that he was not advised of his rights nor was he allowed to make a telephone call. When the assistant State's Attorney arrived, defendant was sleepy, tired and confused. The attorney gave him a document explaining his rights which he read and signed.
She then gave him a handwritten statement which inculpated him in the molestation of the victim. Although the statement was not true, defendant signed it because he was very tired and sleepy and "would have signed anything by that time." He testified that he signed the document at 11:40 p.m., having been awake since 5 a.m. He also testified that he was told he could not go home until he had signed the statement. He denied ever touching the victim inappropriately. Officer Folinazzo and ...