Appeal from the Circuit Court of Cook County. Honorable Edward M. Fiala, Jr., Judge Presiding.
Presiding Justice McNULTY delivered the opinion of the court: Cousins and Hourihane, JJ., concur.
The opinion of the court was delivered by: Mcnulty
PRESIDING JUSTICE McNULTY delivered the opinion of the court:
After a bench trial, defendant Leon Eubanks was found guilty of three counts of aggravated criminal sexual assault and sentenced to 25 years' imprisonment. We affirm defendant's conviction on one count of aggravated criminal sexual assault, vacate the other two convictions and affirm defendant's sentence.
Sandra Porter testified that she is currently incarcerated in the Cook County jail as a result of having been charged with first degree murder in the death of her daughter Victoria. Porter testified that she is also the mother of the victim in this case, L.E. Porter testified that on April 4, 1993, she lived at 1340 South Ashland with her aunt, Roberta Vortes, and Vortes' eight children. Also living in the house were Porter's four children, including her then two-year-old daughter L.E., and defendant, her then and current boyfriend. Porter, her children and defendant shared one bedroom. Porter testified that she and her children went to bed at approximately 11 p.m. on the evening of April 4, 1993. Before doing so, Porter changed L.E.'s diaper and saw nothing unusual in her diaper. At about 2 a.m., L.E. woke up crying for her bottle. Defendant came into the bedroom at that time, but left immediately without engaging in any conversation. Porter testified that she got up, retrieved a bottle for L.E., and then went back to sleep. At this time, defendant was in the kitchen talking with Vortes. Porter denied having a conversation with defendant regarding sex at any time during that night.
Porter testified that she woke up at 7 or 8 a.m. on April 5th. Defendant was with her in bed, along with her children. Porter changed L.E.'s diaper and again saw nothing unusual. Porter then left the apartment. When she returned at approximately 2:30 p.m., Porter changed L.E.'s diaper again and noticed that there was blood in her diaper. Porter took L.E. to the hospital where she was examined. Porter was not informed by the hospital personnel of their findings.
Porter admitted that she gave the following sworn testimony to the grand jury on April 14, 1993, but denied at trial the truth of her grand jury testimony. Porter testified before the grand jury that at approximately 12 midnight on April 5, 1993, she was in the bedroom with defendant when defendant asked her to have sex with him. Porter declined and defendant told her that she was going to regret it. Porter than went to sleep and defendant remained in the bedroom and watched television. Sometime later, Porter woke up. It was dark outside but the television was still on, giving off a bright light. Porter noticed that defendant was lying on top of L.E., with his hips moving up and down. Defendant wore no pants and his underwear was pulled down to his knees. L.E. was screaming. Porter asked defendant why he was doing this and defendant got up and pulled on his pants and underwear. Porter saw blood soaking through defendant's underwear. Defendant then put a diaper on L.E. Defendant told Porter that if she said anything about what she saw, he would kill her. Defendant then turned over and went to sleep. Porter stayed up with L.E., who was crying. Porter left the apartment at noon, but did not change L.E.'s diaper because defendant had already done so. When Porter returned home, defendant told her to check on L.E. because she was bleeding.
Porter denied having a conversation with Vortes after the incident while in front of a credit union wherein the two discussed what had happened to L.E. Porter denied telling Vortes that after she had declined to have sex with defendant, defendant told her to "watch what I do"; that she later awoke to see defendant on top of L.E.; that defendant was moving up and down with his underwear pulled down; and that L.E. was crying. Porter admitted that on April 8, in the presence of Vortes, she later told two police officers that defendant had asked her to have sex and that she had refused; that she had subsequently seen defendant get on top of L.E. and have sex with her; that she saw blood on defendant's underwear; that defendant had threatened to kill her if she told anyone about the incident; and that defendant had beaten her up in the past. Porter further admitted telling the same information to an assistant State's Attorney on April 12, a Department of Family Services (DCFS) caseworker on June 16, and a doctor at Mt. Sinai Hospital on June 25, 1993. Porter admitted that she told the prosecutor that her grand jury testimony was true and that defendant had threatened to kill her if she testified against him.
Porter acknowledged making a cassette tape recording wherein she recanted her grand jury testimony. Porter insisted that she had told the truth in the recording, but admitted telling an assistant State's Attorney that she had not told the truth but had only made the tape so that she could see her mother and stepfather. Porter also testified that on December 5, 1994, she told an Officer Bright that defendant did not rape her daughter and further testified that she had told the same to the prosecutor on three or four previous occasions.
Porter acknowledged that she was not promised anything in return for her grand jury testimony, but that she had falsely implicated defendant because she was angry with him over fights the two had in the past and because "other people" were telling her what to do. Porter testified her last fight with defendant occurred one year prior to April 3, 1993, when defendant had sex with Porter's sister. Porter also stated that she had been angry at defendant for once leaving her children in the care of Vortes' boyfriend Jeff. Porter stated that her anger toward defendant and her desire to "get back at him" motivated her statements to the police on April 8, to the assistant State's Attorney on April 12, to the DCFS caseworker on June 16, and to the doctor at Mt. Sinai Hospital on June 25, 1993. Porter stated that when she appeared before the grand jury, she was essentially told what to say by the prosecutor.
Porter stated that she had listened to Vortes tell her what to do when she accused defendant of sexually assaulting her daughter. Vortes testified that L.E. had in the past had a rash on her genitals and had made herself bleed by placing her hands inside her diaper and touching her "private parts." Porter did not take her to the hospital on that previous occasion because she was afraid DCFS would take L.E. away because she had let the rash get out of hand.
Roberta Vortes testified that on April 4, 1993, she went to bed at approximately 10 p.m. Porter had gone to bed earlier at approximately 7 or 8 p.m., and Porter's children and defendant were inside Porter's room at that time. Vortes testified that the door to Porter's room was closed and she did not see Porter or defendant leave the room. Vortes denied having been in the kitchen with defendant in the late evening and early morning hours of April 4 and 5.
Vortes testified that she was awakened by a sound which she recognized as L.E.'s screaming. Vortes called out to Porter, asking what was wrong with the baby. Vortes could not remember Porter's response, but stated that Porter never came out of the bedroom. At 7 a.m. when Vortes awoke, the door to Porter's room was still closed and Porter, her children and defendant were still in the house when Vortes left two or three hours later.
Vortes returned to the apartment after 2 p.m. and Porter arrived home approximately 15 minutes later. Porter told Vortes that her baby was bleeding anally. Vortes told Porter to take L.E. to the hospital, but Porter was reluctant to do so, stating that defendant had warned her not to go to the hospital and tell "stories on [him]." Vortes told Porter that she had no choice but to go to the hospital. The women then took L.E. to the hospital. When the women returned home, defendant and Vortes' boyfriend Jeff had moved out of the apartment.
Vortes testified that on April 7, she and Porter had a conversation in front of a credit union located on 14th Place. Vortes expressed concern that Porter's earlier statements to the police regarding what had happened to L.E. were causing the police to discuss the possibility of removing Vortes' children from her home. Vortes told Porter to tell the truth, because she had no intention of having her children taken from her. Porter then told Vortes what had happened to L.E. Porter told Vortes that defendant asked to have sex with her and, when she declined, stated "watch what I do." Defendant then removed L.E.'s diaper, got on top of her and began to have sex with her. Porter told Vortes that she saw blood on defendant's underwear when he finished and that she later had sex with defendant. Porter explained that she had previously told L.E.'s treating physician a different story because she feared that defendant would kill her. Vortes testified that she subsequently repeated Porter's story to the police an assistant State's Attorney. Vortes further testified that she had seen defendant hit Porter while the two were living in Vortes' home.
Youth Officer Rolando Garza testified that he was assigned to investigate what had happened to L.E. He and his partner visited the University of Illinois Hospital on Taylor Street and spoke to the treating physician. Officer Garza spoke with Porter, who told him that she did not know how L.E. sustained her injuries. On April 8, Officer Garza interviewed Porter again in his police car in the presence of Vortes. Porter gave Officer Garza a version of events different than that which she had given him a few days earlier. Officer Garza also ...