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04/30/97 PEOPLE STATE ILLINOIS v. WALTER J. KINNETT

April 30, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
WALTER J. KINNETT, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Lee County. No. 95--CF--154. Honorable John E. Payne, Judge, Presiding.

Released for Publication May 30, 1997.

The Honorable Justice McLAREN delivered the opinion of the court. Inglis and Hutchinson, JJ., concur.

The opinion of the court was delivered by: Mclaren

The Honorable Justice McLAREN delivered the opinion of the court:

The State appeals a pretrial ruling excluding the testimony of two corroborating witnesses in an aggravated criminal sexual abuse trial. We affirm.

The defendant, Walter Kinnett, was charged with two counts of aggravated criminal sexual abuse (720 ILCS 5/12--16(c)(1)(i) (West 1994)), in that he knowingly placed the child-victim's (hereinafter c.v.'s) hand on his penis and placed his hands on the c.v's buttocks on or about July 4, 1995. The c.v. was eight years old at the time of the alleged incident. The defendant is the c.v.'s paternal stepgrandfather.

Before trial, the State sought to have admitted the corroborating testimony of Geri Hysom, a Department of Children and Family Services investigator, and Fran Taylor, the c.v.'s maternal grandmother. The trial court held a hearing in accordance with section 115--10 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115--10 (West 1994)).

At the hearing Hysom provided the following testimony. After a brief introduction on September 6, 1995, Hysom spoke at length with the c.v. on September 7, 1995, at Amboy City Hall. The c.v.'s mother and Police Chief Paul Smith were both present. After asking the c.v. to perform simple tasks such as reciting the ABCs and counting, Hysom determined that the c.v. was developmentally on task for her age. Hysom then discussed the difference between the truth and lies and good and bad touches. When Hysom asked the c.v. why the c.v. thought she was there, the c.v. replied that she was there to talk about grandpa. The c.v. stated that she had told her mother, father, and Grandma Fran about the incidents.

Hysom asked c.v. to start at the beginning and tell her how it all started. The c.v. stated that she told her Grandma Fran that her grandpa was "doing weird things" like putting her hands on his "winkie" (penis). The c.v. stated that this happened when she slept at Grandma Sissy's and grandpa's house. The c.v. stated that she usually slept in the living room but would sleep in grandma's and the defendant's bed when she became afraid of the dark. The c.v. also stated that she slept in underpants only, between her grandparents. When everyone was asleep, the defendant would pull his "winkie" out from his underpants and put the c.v.'s hand around it. The c.v. stated that the defendant would pretend to be asleep by closing his eyes, but she knew he was not sleeping because he was not snoring.

When Hysom asked the c.v. when the incidents happened, the c.v. said "a lot" but could not recall specific dates. However, when asked when the last incident occurred, the c.v. replied that it was during the Fourth of July weekend at a campground.

The c.v. also stated that when she had her hand around the defendant's "winkie" her fingers could touch the palm of her hand. But then the defendant's "winkie" got bigger and her fingers could no longer touch the palm of her hand. When Hysom asked if there was any wetness, the c.v. replied that the defendant's "winkie" got "sweaty."

Further, the c.v. told Hysom that if she took her hand away the defendant would put her hand back on his "winkie." The c.v. also stated that, on one or two occasions, the defendant slid his hands down the c.v.'s underpants and put his hands on her buttocks to bring the c.v. closer to him.

In addition, the c.v. told Hysom that she told her Grandma Fran about the incidents after watching a movie called "The Muffin Man." The c.v. stated that she told Grandma Fran because the movie said that you should not protect people who do something wrong.

Fran Taylor, the c.v.'s maternal grandmother, also testified at the hearing. Taylor stated that during the school year she and the c.v.'s other grandmother each baby-sat part-time. During the summer of 1995, Taylor saw the c.v. mostly on weekends.

One Friday afternoon or evening, sometime after the July 4th weekend, the c.v. watched a movie on television called "The Muffin Man" while Taylor cleaned her home. Shortly after the movie was over, the c.v., who is usually talkative and happy, became quiet and serious. The c.v. then told Taylor that sometimes, when she got in bed with her Grandma Sissy and the defendant, the defendant would put her hand on his "winkie." The c.v. said that "winkie" means penis. Taylor told the c.v. that if this happened again she should wake Grandma Sissy and yell loudly.

The c.v. then told Taylor that the same thing happened in a camper once when she went fishing with the defendant. The c.v. stated that her brother was also on the trip but slept in the car with Grandma Sissy. Taylor told the c.v. to tell her mother about the incidents, but the c.v. ...


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