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June 30, 1997


Appeal from Circuit Court of Adams County. No. 95CF200. Honorable Mark A. Schuering, Judge Presiding.

Honorable Rita B. Garman, J., Honorable John T. McCullough, J., - Concur, Honorable James A. Knecht, J. - Concur. Justice Garman delivered the opinion of the court.

The opinion of the court was delivered by: Garman

JUSTICE GARMAN delivered the opinion of the court:

Defendant Andrew P. Bowen was charged in the circuit court of Adams County with one count of aggravated criminal sexual assault (720 ILCS 5/12-14(b)(1) (West 1994)). He was accused of placing his penis in the mouth of then three-year-old D.M.P. while he was baby-sitting her sometime during the month of May 1992. Following a bench trial, defendant was convicted and subsequently sentenced to nine years' imprisonment. He now appeals, arguing (1) he was not proved guilty beyond a reasonable doubt, (2) the trial court erred in admitting into evidence D.M.P.'s videotaped interview with police despite the fact she testified at trial, and (3) he is entitled to $5-per-day credit against his fine for time spent in jail awaiting sentencing.

A hearing was held pursuant to section 115-10 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-10 (West 1994)), during which three persons to whom D.M.P. had made statements testified. One of those, Robert Copley, a police officer for the City of Quincy, conducted a videotaped interview with D.M.P. The State sought to introduce the videotape recording through Copley's testimony. Defense counsel objected on the basis that a child could not possibly remember what happened to her when she was three years old. The trial court granted the State's request, finding that the minor was unavailable because of limitations demonstrated during an in camera examination. The court also found that the time, content, and circumstances of the videotaped statement provided sufficient safeguards of reliability. The court noted the minor's statements were corroborated by other evidence, including volunteered statements and crying hysterically when she believed defendant was going to be baby-sitting for her after the alleged incident occurred.

At the February 1996 trial, D.M.P. testified that she is seven years of age and currently resides in a foster home. She knew a person named Andy who baby-sat for her at Vonnie Tucker's house before she was in kindergarten. She does not recall what Andy looked like. He made her "suck his private part." He told her not to tell her mother. Her brother, Donny, and Derrick, Tucker's son, were there. She and Andy were in the front room of the house, and Derrick and Donny were in Derrick's room. Andy also put his private part in her private part. She does not recall whether Andy baby-sat for her after that incident. She remembers talking to Terri Allen about what happened and she told her the truth. She does not remember talking to police officer Rob Copley. She did not tell Donny about the incident.

On cross-examination, D.M.P. testified that she recalls telling Allen that no one put anything in her "butt." The incident did not happen in a bathroom or in any room where there was a shower. She did talk to Copley about the incident. She also talked to "Cathy" about it.

Laura Richmiller, family support worker for Bridgeway Family Services (Bridgeway), testified that Bridgeway does contract work for the Illinois Department of Children and Family Services (DCFS). She transports D.M.P. and Donny to counseling appointments and supervises their visits. On March 29, 1995, she was taking Donny to a counseling appointment and, afterward, he and D.M.P. were to visit their mother. They were driving to the visit and the children were arguing in the car. Donny said, "So, [D.M.P.], you licked Andy Bow's lizard." D.M.P. said, "So. He made me do it." Richmiller reported this conversation the following day.

On cross-examination, Richmiller stated that Donny was eight years of age at the time of this conversation and D.M.P. was six.

Mary, D.M.P.'s mother, testified that Donny and D.M.P. have been in foster care since January 27, 1995. They lived with her prior to that time. Mary identified defendant as Andy Bowen. Her children called him "Andy Bow." Defendant baby-sat for her children on three occasions during the time she attended parenting classes, in either May or June 1992. He baby-sat twice at Tucker's house and once at another person's house. She stopped having defendant baby-sit because D.M.P. threw a "fit" one night when she asked him to baby-sit. D.M.P was crying and hysterical, but stopped when she realized the baby-sitting arrangements did not work out and defendant was not going to baby-sit that night. Mary decided not to ask defendant to baby-sit anymore because of D.M.P.'s reaction. Approximately one month later, D.M.P. told Mary while they were at a house in Warsaw that "Andy Bow made her kiss his pee pee." D.M.P. started crying and did not say any more. Mary did not report the incident.

Mary testified that she talked to Copley and told him these incidents would have happened when D.M.P. was three years old. She denied telling Copley that D.M.P. made the statement only one week after the incident. At a prior hearing, she testified the incident could have happened as late as July 1992.

Copley testified that on March 31, 1995, he interviewed D.M.P. Terri Allen, investigator for DCFS, was also present. He first interviewed her at the foster home and then again at the police station, where her interview was videotaped. The State's Attorney offered into evidence a videotape of the interview and asked that it be played for the court. The court admitted the videotape into evidence over defense counsel's objection for the same reasons the court had given at the section 115-10 hearing. Counsel also argued the videotape was cumulative to D.M.P.'s trial testimony and that he did not have an opportunity to cross-examine her at the time of her statement. The court also noted that the fact D.M.P. had testified at trial was not a bar to the admission of the tape. The tape was then played but not transcribed by the court reporter.

On further direct examination, Copley testified the only major difference between what D.M.P. told him at the foster home and during the videotape interview was that at the foster home she said something came out of defendant's "area." She said she did not know what color it was except that it was not the color of her hair (which is blond). In the videotape, she said nothing came out. Copley put together a photographic array that included defendant's picture and showed it to D.M.P.'s mother. She picked the photo of defendant and said he was the person who had baby-sat for her children. Copley located defendant, read him his Miranda rights, and interviewed him on April 11, 1995. Defendant said he baby-sat for D.M.P. and Donny and that he had not seen them for about three years. He admitted baby-sitting at Tucker's house. At first, defendant denied touching any of the children in a sexual manner. When told it was alleged he had put his penis in D.M.P.'s mouth and in her vagina or "butt," defendant said he could not remember this happening. When asked if he could honestly say he had never put his penis in D.M.P.'s mouth, defendant said he could not honestly say that. Defendant was present at the police station on April 22, 1995, for a second interview. He was again read his Miranda rights. That interview was tape-recorded and the tape admitted into evidence and played for the court, but not transcribed. However, the tape is part of the record on appeal. In the taped interview, defendant said he baby-sat for D.M.P. and Donny at Tucker's house. It could have been in May 1992. On one occasion, defendant got out of the shower and D.M.P. grabbed his erect penis and put it in her mouth. On another occasion, D.M.P. slid up and down on his lap. At that time, his penis was erect. Defendant said he stopped D.M.P. because he knew it was wrong. He did not ejaculate either time.

On cross-examination, Copley testified that, in the first interview at the foster home, D.M.P. said that no one had put anything in her "butt." Later in that interview, she stated that defendant had put his penis in it. At the first interview, D.M.P. could not recall whose house she was at when the incident happened. In the taped interview, she could not recall where the incident occurred until Copley asked her who "Aunt Vonnie" was and, then, D.M.P. stated she was at Tucker's house when it happened. Copley said D.M.P. told him that her mother was working at the time. He showed D.M.P. the photographic array, and she could not pick out defendant's picture. She did not mention that the baby-sitter had a scar on his lip and talks funny; Copley is aware these are characteristics of defendant. Mary told Copley that defendant baby-sat two Tuesday nights in a row and, on the third Tuesday night, D.M.P. "threw a fit." Mary also said that one week later D.M.P. told her defendant had shown her his "pee pee." ...

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