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07/28/95 A.M. AND E.M. v. FILEMON M. AND CARMEN M.

July 28, 1995

IN THE INTEREST OF A.M. AND E.M., MINORS. THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLANTS,
v.
FILEMON M. AND CARMEN M., RESPONDENT-APPELLEES.



Appeal from the Circuit Court of Cook County. Honorable John M. Sorrentino, Judge Presiding.

Petition for Leave to Appeal Denied December 6, 1995.

The Honorable Justice Gordon delivered the opinion of the court: McNULTY, and T. O'brien, JJ., concur.

The opinion of the court was delivered by: Gordon

JUSTICE GORDON delivered the opinion of the court:

Petitions for adjudication of wardship were filed on behalf of minors A.M. and E.M. based on allegations made by the minors' seventeen-year-old sister, Rosa M., that their father had sexually abused her. At the adjudication hearing, Rosa recanted her prior statements. The trial court found the recantation credible and dismissed the petitions for adjudication of wardship. The Public Guardian and the State appeal from this dismissal. *fn1

On appeal, the Petitioners argue that the trial court erred in refusing to allow impeachment of Rosa's in-court recantation The Petitioners also argue that the decision to dismiss the petitions for adjudication of wardship was against the manifest weight of the evidence.

At the hearing, Detective William Stutzman of the Wheeling Police Department, testified that he interviewed Rosa on April 23, 1993. Rosa, who was seventeen years old, told him that two days earlier, she and her father argued about whether she could go to her prom. After the argument, her father kissed and hugged her, placed his hand on her breast on the outside of her clothing and then inside her shirt. Rosa told Stutzman that her father was always trying to hug her and touch her in ways she felt were inappropriate. Rosa also told Stutzmanthat, when she was fifteen years old, her father called her into his bedroom and told her to sit on his bed. He asked her whether she was sexually active, kissed her and placed his tongue inside her mouth. He fondled her on the outside and inside of her clothing. He pushed her back on the bed, removed her pants and underwear and inserted his finger into her vagina. During this incident, her father told her that he did not want her to date boys and that he was showing her what he did not want her to do with boys.

Detective Stutzman further testified that he interviewed Rosa's parents on April 23, 1993. Carmen M., her mother, cried and told him that two months earlier Rosa had informed her that her father kept wanting to hug her and tried to touch her "in that way." (On cross-examination, Stutzman admitted that his report indicated that Rosa's complaint to her mother was that her father was always hugging her and that she didn't want him to. There was no sexual reference in the report.) Carmen told Stutzman that she questioned her husband and that her husband denied touching Rosa in any wrongful way.

Detective Stutzman began his interview of the father, Filemon M., by advising him of his constitutional rights. Filemon indicated that he understood and signed a form to that effect. Filemon was informed of Rosa's statement and then told Stutzman that on April 21, 1993, he and Rosa argued about whether Rosa could go to her prom. At the end of the argument, he told Rosa to give him a hug and kiss and she did so. He admitted that his hands touched her breasts but he denied placing his hands beneath her shirt. With respect to the 1991 incident, Filemon told Stutzman that Rosa had come home with some marks on her neck. Filemon called Rosa into his bedroom, asked her whether she had any boyfriends and told her she was too young to date. He told her that he was going to show her what he did not want boys to do to her and then kissed her, placed his tongue in her mouth, touched her breasts on the outside and inside of her shirt, told her to lay down, pulled her pants and underwear off, and inserted his finger into her vaginal area.

On cross-examination, Stutzman admitted that Filemon spoke English with a Spanish accent. He also said there were no communication difficulties; Filemon responded to his questions; and Filemon never requested a Spanish interpreter. Stutzman stated that Filemon remained calm and was never agitated, angry or upset. Filemon's statement was not reduced to writing.

Doctor Sergio Grajeda, a therapist at Adalante, a treatment program for sex offenders specializing in Spanish-speaking clients, testified that Filemon admitted that he fondled his daughter's breast and crotch area but stated that he did so to sexually educate her. Doctor Grajeda also stated that Carmen told him that her husband told her that he had fondled Rosa because he was sexually educating her.

On cross-examination, Doctor Grajeda stated that Filemon indicated that his purpose in talking to Grajeda was to regain custody of his two children. Grajeda admitted that he told Filemon that he could not regain custody unless he took some responsibility for some of the allegations against him. Filemon thereafter admitted that he touched Rosa's breast and crotch area because he was educating her and wanted to tell her what she should not do with boys. Filemon indicated that he did this without any sexual intention and denied that he kissed Rosa on the mouth or that any digital penetration of Rosa occurred. Filemon told Grajeda that his actions had been misinterpreted.

On further cross-examination, Doctor Grajeda indicated that he was aware that Rosa had recanted her statements and did not press any criminal charges against her father because her prior statements were made when she was angry at her father since he would not let her go to the prom. On redirect, Doctor Grajeda stated that Rosa's recantation did not change his opinion that Filemon sexually abused Rosa.

After Doctor Grajeda's testimony, the State and the guardian for the minors rested. The respondents' motions for directed verdicts were denied.

Rosa, who was nineteen years old at the time of trial, was called to testify on behalf of Filemon. She testified that at the time she reported the sexual abuse to the police, she did not have a good relationship with her father. He was very strict and would not let her go out with her friends. She stated that she hated her father because he abandoned her and her mother until she was eight years old and because of all the restrictions he placed upon her. Rosa testified that on April 21, 1993 she and her father argued over whether she could go to the prom. She denied that her father kissed her, put his tongue in her mouth, or put his hand underneath her blouse.

Rosa stated that, after the argument concerning the prom, she wanted to hurt her father. She said she went to the police and told them that in 1991 her father touched her breast, kissed her and inserted his finger into her vagina. She testified that she was not truthful when she told the police this. Rosa further stated that in 1991 she had come home with a "hickey" on her neck and that her father saw it. She said he told her he "didn't want her doing anything bad with boys" and that he wanted to educate her. He pointed to her breast and her crouch area but did not touch her. She did not feel this was inappropriate nor did she feel that he was doing it to sexually arouse himself. Rosa further testified that her father did not insert his finger into her vagina, did not pull her pants down, did not kiss her on the mouth, and did not place his hand on top of her breast or underneath her blouse. She stated that her whole point in going to the police was to get family counseling with respect to communication between her parents and herself.

On cross-examination, Rosa admitted that on April 22, 1993 she told her friend that her father was doing something inappropriate. She stated that she told her high school psychologist that her father had touched her inappropriately. Rosa also admitted that on April 23, 1993 she told the police that her father had touched her breast on April 21, 1993 and that sometime in the fall of 1991 her father kissed her on the mouth, put his hands on her breast over and underneath her blouse, ...


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