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04/23/96 PEOPLE STATE ILLINOIS v. MARK SECOR

April 23, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
MARK SECOR, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois, No. 95-CF-405. Honorable Amy Bertani, Judge, Presiding.

Rehearing Denied May 28, 1996. Released for Publication.

Present - Honorable Tom M. Lytton, Justice, Honorable Michael P. Mccuskey, Justice, Honorable Kent Slater, Justice. Justice Slater delivered the opinion of the court: Lytton and McCUSKEY, J.j., concur.

The opinion of the court was delivered by: Slater

The Honorable Justice SLATER delivered the opinion of the court:

Defendant Mark Secor was convicted of one count of criminal sexual assault (720 ILCS 5/12--13(a)(4) (West 1994)) and one count of aggravated criminal sexual abuse (720 ILCS 5/12--16(d) (West 1994)) and he was sentenced to concurrent terms of six and three years imprisonment. On appeal defendant contends that: (1) the State failed to prove him guilty of criminal sexual assault beyond a reasonable doubt; (2) section 12--13(a)(4) of the Criminal Code of 1961 (the Code) is unconstitutionally vague; and (3) defendant was denied a fair trial by the State's opening statement. We affirm.

The 14-year-old victim, J.L., testified that on December 21, 1994, he and his 11-year-old brother, Peter, spent the night at the defendant's house visiting the defendant's son, Gregg. J.L. had been in the house "[a] lot" and he had spent the night there "a couple" of times before. When J.L. and Peter arrived at approximately 6:30 p.m., the defendant was not present. The three boys played video games for about an hour in Gregg's room. The defendant then drove them to a video store and to a gas station. They were gone approximately one hour. After returning, the boys again played video games until 11 p.m., when the defendant told them to go to bed. J.L. slept on the bed in Gregg's room; Peter and Gregg slept on the floor a few feet from J.L. J.L. awoke during the night and saw the defendant sitting on the bed next to him. The defendant had his hand on J.L.'s thigh. The defendant told J.L. that he was covering him up, and he pulled the covers over him and left. J.L. testified that subsequently, on three separate occasions, the defendant came into the room and fondled and placed his mouth on J.L.'s penis. The next evening, J.L. told his mother what had happened and the defendant was later arrested. According to J.L., he saw the defendant two days after the incident. The defendant asked J.L. if he had gotten him a Christmas present and if he had slept well that night.

On cross-examination, J.L. admitted that he could have gone home if he had wanted to and that the defendant had not prevented him from leaving. J.L. acknowledged that the idea of sleeping over at the defendant's house originated with the three boys, not with the defendant. On re-direct examination, J.L. stated that he did not leave the defendant's house because he was scared and did not know what to do.

J.L.'s mother, P.L., testified that she and her family had known the defendant and his family for 10 years. Prior to the night of the incident, her children had spent the night at the defendant's house approximately six times. In addition, the defendant's children had spent about the same number of nights at P.L.'s house. P.L. stated that she had given permission for J.L. and his brother to spend the night at the defendant's house. On that same night, the defendant's daughter was staying overnight at P.L.'s house, visiting with P.L.'s daughter. According to P.L., the two families had exchanged children in this manner before.

Richard Demick, an investigator for the Joliet police department, testified that he interviewed the defendant on January 18, 1995. The defendant initially denied committing the offenses, but later admitted fondling and placing his mouth on J.L.'s penis.

The State rested its case and the defendant's motion for a directed verdict and motion to dismiss were denied. The defendant chose not to present any evidence and, as indicated above, the jury found the defendant guilty of criminal sexual assault and aggravated criminal sexual abuse.

The defendant first contends that the State failed to prove him guilty beyond a reasonable doubt of criminal sexual assault. Specifically, defendant maintains that the State completely failed to produce any evidence that he occupied a position of trust or supervision in relation to the victim. We disagree.

Section 12--13 of the Code provides in part:

"The accused commits criminal sexual assault if he or she:

(4) commits an act of sexual penetration with a victim who was at least 13 years of age but under 18 years of age when the act was committed and the accused was 17 years of age or over and held a position of trust, authority or supervision in ...


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