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05/30/95 J.S. v. J.S.


May 30, 1995


Appeal from the Circuit Court of Cook County. Honorable Charles S. May, Judge, Presiding.

Presiding Justice Scariano delivered the opinion of the court: Hartman and McCORMICK, JJ., concur.

The opinion of the court was delivered by: Scariano

PRESIDING JUSTICE SCARIANO delivered the opinion of the court:

Following an adjudicatory hearing, respondent J.S. was adjudged a delinquent, based on aggravated criminal sexual assault and was committed to the custody of the Illinois Department of Corrections. On appeal, he contends that the trial court erred in denying his motion to introduce evidence of his prior sexual activity with the complainant under section 115-7 of the Code of Criminal Procedure. 725 ILCS 5/115-7 (West 1992).

The State's evidence consisted of testimony by complainant, S.L., that on June 18, 1991, she was walking to school with a girl friend when respondent and his friend, R.W., approached them. Complainant tried to run away, but respondent grabbed her arm and she told him to release her. Instead, he twisted her arm over her head and R.W. pulled her "across the street by [her] legs." When she tried to kick in order to break loose from J.S. and R.W., respondent warned her that he could break her arm. As respondent continued to twist and hold her arm above her head, she was dragged into a house while respondent's brother opened the door to the house to let them in. Inside the house there was a fourth boy, B., but when they saw respondent's uncle, S.L. was pulled to another room by her arm and wrist. When they encountered respondent's brother who was sleeping in the room, respondent dragged the complainant to the attic, again by her wrist and arm, and he pushed her down on a mattress which was on the floor. When the complainant stood up, she was pushed down. While respondent's three friends were standing by the door, respondent, who was naked from the waist down, pulled the complainant's pants and underpants off while she kept repeating, "No." She tried to pull her clothes back, but he pushed her down on a mattress and kept repeating to her, "It's going to take two minutes, and you can go to school."

After respondent had sexual intercourse with the complainant, he got up and called to one of his companions, "Come on, Jermaine. It's your turn." Jermaine then entered the room, naked below the waist, and told the victim, "You ain't fitting to go nowhere." He then pushed her down on the mattress and raped her.

After Jermaine left the room, R.W. entered and undressed and had sexual intercourse with her while respondent and his two other friends stood by the door laughing.

After having intercourse, respondent told the complainant to dress and return to school. When the she left, her pants were ripped, her hair was in disarray, her blouse was not completely tucked in, and her shoes were not completely on her feet.

Respondent testified that after he and R.W. joined the victim and her friend as the latter were walking towards respondent's house, complainant agreed to stay at his house until school started. Respondent had known the victim for two years and they attended the same school. He also testified that the complainant had been to his house on two or three previous occasions and that he had been alone with her at her house and his house more than ten times. Respondent further testified that he and the complainant entered through the front door of his house because his uncle was standing at the back door; that he urged her to go with him "somewhere private"; and he described how they had to go to several rooms before they were settled.

Respondent continued: He and the victim began talking when they reached the attic, and he asked whether she would have sexual intercourse with him, and her response was, "OK." He further stated that he took his own clothes off and then removed the complainant's pants and underpants, which she had pulled down to her knees. He admitted that he had sexual intercourse with her for two or three minutes, and stated that neither struck the other physically.

Respondent further stated that while he was having sexual intercourse with the complainant she asked the whereabouts of Jermaine. Accordingly, he testified, he went downstairs and told Jermaine that the complainant had asked about him, after which respondent sat on the couch with R.W. and B. until the complainant came downstairs. He then let the complainant out through the front door and she went to school. Respondent and R.W. left the house approximately five minutes later.

In finding respondent and R.W. delinquent, the court stated that the case was a serious one because it was not one of two young people experimenting with sex and getting caught at it, but that it was a case where force was used. The court further remarked, "Two other people also had sex with this young lady, and he is going to suggest to me that a 12-year-old, one was an adult, that the 12-year-old came in and allowed all of that, looked for it?" Respondent alone appeals.

Prior to the adjudicatory hearing, respondent filed a motion to introduce evidence of prior sexual conduct between complainant and himself. At the hearing on the motion, respondent testified that he "had sex" with the victim three times, including the incident involved in the instant case. He claimed that the first sexual encounter was in the middle of April 1991 in his basement at 1330 West 72nd Street in Chicago between 10 and 11 p.m. The second occasion was two to three weeks before the charged offense took place when the two had sex in a friend's back yard garage at 72nd and Bishop in Chicago after school at about 3 p.m. On both prior occasions, respondent testified that both agreed to the sexual activity.

In response to respondent's offer of proof, the State argued that consent was not relevant to the charge before the court; that complainant would deny the prior sexual conduct; that the testimony was not specific as to the dates so as to satisfy the requirement that they be "reasonably specific"; and that there were no facts presented showing that the prior sex acts were consensual. Respondent was the only witness to testify at this hearing.

The court agreed with the State, holding that respondent's testimony that the alleged prior sexual acts were consensual was based solely on respondent's conclusory statement to that effect; and that the respondent was not specific as to time, date and location of the prior sexual activity. Respondent protested that there was no requirement that the prior sexual acts be shown to be consensual and that the proof on his motion was sufficient in that it provided "reasonably specific" information. The court denied the respondent's motion.

The sole issue in this case as framed by respondent is whether the trial court erred in denying respondent's motion to introduce evidence of prior sexual activity between himself and complainant pursuant to section 115-7 of the Code of Criminal Procedure.

On appeal, respondent argues that the denial of his motion precluded him from asserting the affirmative defense of consent at trial. He argues that this defense was available because he was charged with the use of force and that the offer of proof was "reasonably specific" so as to satisfy section 115-7(b) of the Code of Criminal Procedure. 725 ILCS 5/115-7 (West 1992).

The elements of aggravated criminal sexual assault are that the accused be under 17 years of age and commit an act of sexual penetration with a victim who was at least 9 years of age but under 13 years of age when the act was committed, and that the accused use force or threat of force to commit the act. (720 ILCS 5/12-14 (West 1992).) A conviction for aggravated criminal sexual assault where the defendant denies the charge will be upheld where the victim's testimony is clear and convincing or is corroborated by other evidence. Clear and convincing does not mean unimpeached or uncontradicted. People v. Barlow (1989), 188 Ill. App. 3d 393, 412, 544 N.E.2d 947, 136 Ill. Dec. 172.

Here, complainant was 12 years old and respondent was 13 years old at the time of the offense. Section 12-17 of the Criminal Code states that "It shall be a defense to any offense under section 12-13 through 12-16 of this code where force or threat or force is an element of the offense that the victim consented." "Consent" means freely given agreement to the act of sexual penetration or conduct in question. (720 ILCS 5/12-17 (West 1992).) Since respondent admitted having sexual relations with complainant, the issue becomes whether the intercourse was consensual or by force.

Section 115-7(a) of the Code of Criminal Procedure states as follows:

"In prosecutions for aggravated criminal sexual assault, criminal sexual assault, aggravated criminal sexual abuse or criminal sexual abuse, the prior sexual activity or the reputation of the alleged victim is inadmissible except as evidence concerning the past sexual conduct of the alleged victim with the accused." 725 ILCS 5/115-7(a) (West 1992).

Section 115-7(b) states in part that:

"No evidence admissible under this section shall be introduced unless ruled admissible by the trial judge after an offer of proof has been made at a hearing to be held in camera in order to determine whether the defense has evidence to impeach the witness in the event that prior sexual activity with the defendant is denied." (725 ILCS 5/115-7(b) (West 1992).)

The remainder of section 115-7(b) states that the offer of proof must contain reasonably specific information as to the date, time or place of the alleged past sexual activity or the evidence will not be admitted. 725 ILCS 5/115-7(b) (West 1992).

Respondent testified at the hearing on his motion that his prior incidents of sexual activity with complainant occurred "in the middle of April" and "two or three weeks before this incident." The first incident occurred between "10 and 11 p.m." and the second incident occurred "after school at about three o'clock." The first incident occurred in the basement of respondent's house at 1330 West 72nd Street in Chicago and the second incident occurred in the garage of his friend who lived at 72nd Street and Bishop. It is to be noted that the statute requires reasonable specificity - it does not call for exactitude. Consequently, we hold that respondent met the "reasonably specific" requirement of the statute and that the trial court erred in refusing evidence of his prior sexual conduct with complainant.

We must now address whether this error was harmless, the alternative argument advanced by the State. In respondent's notice of appeal and docketing statement, he requested that all seven days of the trial testimony be transcribed by the official court reporter, but when respondent's counsel had difficulty in obtaining the transcripts, he was granted five successive extensions of time within which to obtain them. When counsel informed this court that such attempts had failed, we issued a rule to show cause against the official court reporter as to why the transcripts should not be produced for respondent. On May 6, 1993, the supervisor of the Juvenile Division of the official court reporter's office filed an affidavit as part of his return to the rule, indicating that (1) the court reporters for the two missing transcripts were no longer employed as official court reporters; (2) his office had great difficulty in obtaining either the stenographic notes or completed transcripts from the reporters who had attended respondent's trial; and (3) that he had sought the assistance of the Illinois Attorney General in obtaining the notes or the transcripts from the reporters.

On July 8, 1993, this court on its own motion, after acknowledging that the record was incomplete, ordered "that the record, nevertheless, be filed forthwith and that briefing proceed pursuant to Supreme Court Rules." The order further stated:

"In the event that the parties can identify hearings involving substantive or substantial matters, for which no transcripts are as yet available, the parties may proceed, alternatively, as follows:

(1) Prepare bystanders' reports for any missing hearings and enlist the complete cooperation of all parties concerned, for which this Court will render assistance if necessary; or

(2) Proceed without the missing hearing transcripts and, in the event that said transcripts are located or prepared prior to the disposition of this appeal, this Court will entertain a motion or motions from either or both parties demonstrating, clearly and convincingly, how later-secured transcripts would affect the outcome of this appeal."

Respondent filed his opening brief claiming only that the trial court erred in denying his motion to introduce evidence of prior sexual activity between himself and the victim. He relied only on matters contained in the record that has been filed herein, i.e., the testimony of complainant and respondent at trial, and the testimony of respondent at the hearing on his offer of proof as to his prior sexual activity with the complainant.

In response, the State supported the trial court's decision but argued alternatively that "even if it were determined that the operation of the 'rape shield' statute in this case worked a denial of respondent's right of confrontation, that conclusion would not require a reversal" because the evidence of respondent's guilt was overwhelming.

Only the closing arguments of the prosecutor contain references to the testimony missing from the record, and they indicate that: respondent was much larger in size than complainant; Kathy Henderson, complainant's friend, ran to school and called for help after seeing complainant being dragged away; someone from the school called looking for complainant and respondent; a teacher from the school went with Kathy Henderson to respondent's house to look for complainant; both respondent and R.W. made admissions of guilt to the police; and complainant's testimony was corroborated by the testimony of a detective and youth officer regarding her statements to them directly following the assault.

Supreme Court Rule 323(a) provides that the report of proceedings shall include all the evidence pertinent to the issues on appeal. (134 Ill. 2d R. 323(a).) The burden is on the appellant to submit a record that fully and fairly presents all matters necessary and material for a decision on the issues he raises. ( LaPlaca v. Gilbert & Wolf, Inc. (1976), 37 Ill. App. 3d 259, 260-61, 345 N.E.2d 774.) A transcript of the proceedings is not always necessary to resolve a matter unless review is requested of matters included therein. ( Kuhlman v. Cotter (1968), 92 Ill. App. 2d 475, 234 N.E.2d 815.) Respondent ordered all seven trial transcripts in his notice of appeal and docketing statement. When it was finally determined that two transcripts were unavailable, respondent filed his opening brief in which he raised as his only issue, the refusal of the trial court to allow him to testify to prior sexual acts in which he had engaged with complainant, and in support of his argument he relies upon the transcript of the only testimony offered in the case on this issue.

The State responded, as we have already noted, claiming that the trial court was correct, and, in the alternative, that the error was harmless in light of the overwhelming evidence against respondent. However, the State can refer to no evidence of record in support of its argument as to harmlessness except the transcripts containing the closing arguments of the State. When a party seeks to have a judgment or issue reviewed, it is incumbent upon that party to present a record of the proceedings and judgments sufficient to enlighten the court as to the issue he raises. Neylon v. Illinois Racing Board (1978), 66 Ill. App. 3d 621, 623, 384 N.E.2d 619, 23 Ill. Dec. 639.

The principle is too well-established to require any citation of authority that closing arguments are just that: argument by counsel, not evidence. At no time did the State even attempt to prepare a bystanders' report for the missing hearings, nor did it seek to enlist the cooperation of the respondent or this court in any way. On July 8, 1993, this court ordered that the parties could proceed without the missing transcripts and that if they were located or prepared prior to the disposition of this appeal, the court would entertain a motion from either or both parties demonstrating how the later-secured transcripts would affect the outcome of this appeal. Moreover, we offered to render all necessary assistance to both parties in order to expedite disposition of this case, which was then almost two years old. The State has never availed itself of our offer.

Without these transcripts, we are unable to make a determination as to whether the trial court committed harmless error. We are entirely without the required record that would enable us to avoid arriving at findings not supported by evidentiary facts. We do have enough of a record, however, to determine that the circuit court was in error in barring respondent's testimony as to prior sexual activity with the complainant.

Accordingly, we are constrained to reverse the trial court's judgment, and to remand this cause for a new trial with directions to allow evidence of prior sexual conduct as contained in respondent's offer of proof.

Reversed and remanded with directions.

HARTMAN and McCORMICK, JJ., concur.


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