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06/28/96 PEOPLE STATE ILLINOIS v. JAMES WILLER

June 28, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JAMES WILLER, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lake County. No. 94--CF--2274. Honorable Charles F. Scott, Judge, Presiding.

Released for Publication July 31, 1996.

The Honorable Justice Bowman delivered the opinion of the court: Inglis and Thomas, JJ., concur.

The opinion of the court was delivered by: Bowman

The Honorable Justice BOWMAN delivered the opinion of the court:

A jury convicted defendant, James Willer, of two counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12-14(b)(1) (now 720 ILCS 5/12-14(b)(i) (West 1994))) and two counts of aggravated criminal sexual abuse (Ill. Rev. Stat. 1987, ch. 38, par. 12-16(b) (now 720 ILCS 5/12-16(b) (West 1994))). The trial court sentenced defendant to concurrent terms of imprisonment of 10 years for each count of aggravated criminal sexual assault and 5 years for each count of aggravated criminal sexual abuse. Defendant now appeals his conviction. We reverse and remand.

The following summary of the facts is taken from the record. On October 26, 1994, defendant was charged by indictment with one count of aggravated criminal sexual assault and two counts of aggravated criminal sexual abuse. Count I alleged that defendant committed the offense of aggravated criminal sexual assault against his daughter, M.W., by engaging in sexual intercourse with her when she was under 13 years old. Count II alleged that defendant committed the offense of aggravated criminal sexual abuse against M.W. by fondling her buttocks when she was under 18 years old. Count III alleged that defendant committed the offense of aggravated criminal sexual abuse against his daughter, J.W., by fondling her buttocks when she was under 18 years old. On February 8, 1995, the State added a fourth count to its indictment. Count IV alleged that defendant committed the offense of aggravated criminal sexual assault against M.W. by committing acts of oral sex with her when she was under 18 years old.

On January 20, 1996, defendant filed a motion for severance pursuant to sections 111--4 and 114--8 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/111--4, 114--8 (West 1994)). In the motion, defendant asked the trial court to sever the counts pertaining to M.W. from the count pertaining to J.W. The trial court denied the motion.

The trial commenced on April 3, 1995. M.W. testified first for the State. M.W., who was 18 years old at the time of trial, testified that her parents have four children--herself, J.W., Ma.W., and Je.W.--of which she is the oldest. She also has four half-siblings born out of defendant's earlier marriage. M.W. never lived with her half-siblings as she grew up. Her parents divorced apparently when she was 12, and defendant has since remarried.

M.W. described the house she grew up in as follows. The upstairs had four bedrooms with one full bathroom and one half bathroom. There were two bedrooms toward the front of the house: the master bedroom and the "girls' bedroom." These rooms were connected by the half bathroom. There were two bedrooms toward the back of the house: the "baby's room," which was adjacent to the master bedroom, and Ma.W.'s room, which was adjacent to the full bathroom.

M.W. testified that defendant is a road construction repairman who, when she was growing up, would leave for work at approximately 6 a.m. and return home between 9 p.m. and 1 a.m. When she was three or four years old, defendant started to "touch" her. Defendant would enter her room at approximately 3 a.m. and wake her up. From his smell she could tell that he had been drinking. Oftentimes he would not speak to her; if he did, he would ask her if she wanted a back rub or, as he called it, a "special massage." He would then rub her back and buttocks, remove her pajamas, turn her over onto her back, rub her chest, kiss her on the mouth, and penetrate her vagina with his penis. She stated that this happened more often than she could estimate. He also tried to place his penis in her mouth on about 10 occasions when she was eight or nine years old.

M.W. explained that the frequency of the assaults decreased as she became older and stopped almost completely by the time she was 10 or 11 years old. Defendant last attempted to assault her in 1988, when she was 12 years old. This assault occurred in his apartment, since her parents by this time were divorced. M.W. explained that as she was cooking dinner defendant turned her around and "French-kissed" her. She then ran off and locked herself in the guest bedroom.

M.W. testified that she lived in two bedrooms during the years these assaults occurred. At first, she lived in the "girls' bedroom." She shared this room with J.W., who was two years younger than her. Sometime from the ages of 7 to 10 she moved into the "baby's room" and lived there by herself. When she moved into the "baby's room," defendant would sometimes sleep in her bed after assaulting her. He slept in her room anywhere from zero to three times per week. He never slept in her bed when she lived in the "girls' bedroom."

According to M.W., she never told anyone about defendant's assaults as she was growing up. She feared defendant's "bad temper," and she thought people would not believe her or they would think it was her fault. He was physically mean to her younger brother Ma.W. during his whole childhood. For instance, he would pull Ma.W.'s ears, push him around, and kick and spank him with a belt. She acknowledged that she always sided with and defended defendant when there were family arguments. She thought that if she could demonstrate that she loved him, he would stop assaulting her.

M.W. further testified that when she was 17 years old she tried to kill herself by attempting to ingest 25-30 pain relievers in the bathroom. However, her mother convinced her to open the bathroom door and let her in. Once inside the bathroom, her mother asked her if she had been raped, to which she replied, "sort of." Her mother then tried to guess who had raped her; when she asked if it was defendant, M.W. responded, "yes." Sometime thereafter she started to visit Carlene Fitz-Hugh, a therapist.

On cross-examination, M.W. stated that she has never had an inability to recollect defendant's assaults, even when they were happening. She acknowledged that she was involved in numerous extracurricular activities during high school. She further acknowledged that Detective Mike Leusch of the Waukegan police department interviewed her on June 24, 1994, and she admitted that it was possible she did not tell him that defendant would rub her chest and kiss her before having intercourse with her. She also could not recall whether, in October 1994, she and J.W. accused each other of lying about their allegations against defendant while they were having lunch at a mall with Je.W., Ma.W., and V.W., her half-sister from defendant's first marriage. On redirect examination, M.W. explained that she never spoke or cried out during the assaults because she was afraid defendant would become violent. Although she did not cry out, she was in pain during the assaults.

J.W., who was 16 years old at the time of trial, testified next. J.W. testified that one evening when she was approximately eight years old she and defendant were on her bed talking when he asked her if she wanted a back rub. When she did not answer, he started to give her one. He began rubbing her back underneath her pajamas, and then he touched her bare buttocks. When he did this, she got up and said she had to tell her mother something. This was the only time he touched her on the buttocks. J.W. also testified that when she shared the "girls' bedroom" with M.W. she could not recall defendant entering the room during the night.

J.W. explained that defendant favored M.W. when she was growing up and that of all the children M.W. was the closest to defendant. According to J.W., defendant would slap Ma.W. in the head, kick him in the buttocks, or pull his ear whenever he did something wrong. This happened "a lot." Like M.W., she could not recall whether they accused each other of lying about their allegations against defendant when they had lunch with Je.W., Ma.W., and V.W. in October 1994.

Jac.W., defendant's ex-wife, and M.W. and J.W.'s mother, testified that she did not know what time defendant would come home after work, because she was asleep by then. She assumed he slept with her every night when he came home, although she did not know for sure, since she never woke up. Defendant was usually drunk when he came home. Defendant would initiate sex with her by giving her what he called a "special massage."

Jac.W. also testified that M.W. attempted to commit suicide when she was 16 years old. M.W. locked herself in the bathroom and said, "I can't live with this anymore, and you can't help me, and I don't want you to know anything." After convincing M.W. to let her in, she started to ask her questions. When she asked M.W. if she had been raped, she "went hysterical" and confessed what defendant had done to her.

Jac.W. admitted that she never saw defendant sleep in M.W.'s bed, nor did she hear any sounds of pain or distress coming from her bedroom. She never observed any blood or semen on M.W.'s bed or linens. She explained that the children changed their own linens when they reached the age of four or five. Also, she did not examine the linens for evidence of blood and semen. She admitted that, when defendant fell behind on his child support payments, she would become upset and express her displeasure of defendant to the children, including M.W.

Carlene Fitz-Hugh, a therapist for marital and family problems, testified that she treated M.W. after her suicide attempt from December 1993 to July 1994. When she first met M.W., she was having headaches, stomachaches, nightmares, and panic attacks. M.W. told her that she first remembered the assaults when she was 14 years old and that she had no memory of them prior to that age. M.W. also told her that she had too many responsibilities in the family and that she was relied upon more as an adult than as a child. M.W. did not want to report defendant to the police because she was afraid of him; eventually, however, she gave Fitz-Hugh permission to report the case to the Department of Children and Family Services (DCFS) in ...


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