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10/08/97 PEOPLE STATE ILLINOIS v. TY SUTER

October 8, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
TY SUTER, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Macon County. No. 95CF823. Honorable Jerry L. Patton, Judge Presiding.

Released for Publication October 8, 1997.

Honorable Robert W. Cook, J., Honorable John T. McCullough, J. - Concur, Honorable James A. Knecht, J. - Concur. Justice Cook delivered the opinion of the court.

The opinion of the court was delivered by: Cook

The Honorable Justice COOK delivered the opinion of the court:

Following a jury trial, defendant Ty Suter was convicted of aggravated criminal sexual assault (720 ILCS 5/12-14(b)(1) (West 1994)), and he was subsequently sentenced to 36 years' imprisonment. On appeal, defendant contends (1) the trial court erred in instructing the jury that the State need not prove the date of the offense, where all the State's evidence indicated that the offense occurred on July 30, 1995, and defendant presented an alibi defense for that date; (2) defendant was not proved guilty beyond a reasonable doubt; (3) the court erred in allowing hearsay evidence about the contents of a note allegedly written by defendant; and (4) the court improperly denied defendant's request to excuse several jurors for cause. We agree it was error to give the instruction, but hold that any error was harmless, and affirm.

Defendant was charged with the offense of aggravated criminal sexual assault, in that "on or about July 30, 1995," he knowingly placed his mouth on the penis of K.V., a minor under 13 years of age. (K.V. was born September 6, 1989.) On October 15, 1995, defendant notified the State of his intent to present an alibi defense at trial. Defendant's written notice stated he intended to call his mother, Joyce Walbridge, and her husband, Robert Walbridge, as alibi witnesses. Defendant also notified the State that he possessed ticket stubs and other evidence indicating he attended a Chicago Cubs baseball game on the morning of July 30, 1995. On October 31, 1995, new counsel for defendant entered his appearance. Defense counsel asserts in his brief that on that date he requested a bill of particulars, seeking to learn the exact time and date of the alleged offense. A request for a bill of particulars is contained in the record, but there is no indication if and when it was filed, and the State apparently never produced a bill of particulars.

At trial, the State presented evidence that in July 1995, defendant leased an apartment from Timber Cove Apartments (Timber Cove) located in Decatur, Illinois. Sharon Robbins was employed as a pool monitor by Timber Cove during June, July, and August 1995. Robbins' primary job responsibility was to ensure that users of the apartment's enclosed swimming pool were residents of Timber Cove. She was on duty on July 30, 1995. That afternoon, around 4 p.m., Robbins observed defendant and K.V. sitting together at a picnic table in the recreation area, which was just outside the swimming pool's fence. Defendant approached Robbins and asked if he could take K.V. swimming. Robbins replied no, it was against the apartment complex rules. Defendant went back to the picnic table, talked to K.V. for a little while, then returned to Robbins and asked what he needed to do to take the boy swimming. Robbins replied that defendant needed to obtain a note signed by K.V.'s parents granting him permission. Nevertheless, defendant repeatedly asked Robbins for permission to take K.V. swimming.

Robbins noticed nothing more until around 6 p.m., when K.V. returned to the pool area with his mother, Patricia Jensen. Defendant was in the pool when K.V. arrived. Robbins observed defendant play with K.V. by repeatedly throwing him over the rope that divided the deep and shallow ends of the pool. Defendant would lift K.V. out of the water by placing both hands on K.V.'s buttocks.

Robbins stated she was certain that the events she related occurred on July 30, 1995. The date stuck in her mind because Timber Cove had planned a special cookout for that evening. However, defendant's name did not appear on the July 30, 1995, log sheet Robbins used to record pool users. Robbins explained that by that time she recognized defendant, and he was no longer required to sign in. Defendant had signed the July 24, 25, and 26 log sheets. Both Jensen and Roger J. McKenzie, Jensen's boyfriend, had signed in on July 30, 1995.

Jensen testified that on July 30, 1995, K.V. asked her several times whether he could go swimming. Jensen did not want to sit by the pool; it was hot and she was pregnant. Around 5 or 6 p.m that afternoon, K.V. brought Jensen a note. Over defendant's objection, Jensen testified the note stated, "P.J., I will take your son swimming anytime." The note was signed "Ty," and it gave an apartment number. At the time, Jensen did not know who Ty was. She threw the note away and told K.V. to get his trunks on, she was taking him swimming. At the pool, K.V. pointed defendant out to his mother and said, "That's Ty." Defendant played with K.V., keeping the boy near him. Defendant spoke briefly with Jensen, saying, "It [is] hard to believe that I was swimming in Lake Michigan earlier today."

McKenzie testified that he resided with K.V. and Jensen at Timber Cove. McKenzie often took K.V. swimming. On August 7, 1995, McKenzie witnessed defendant lifting K.V. out of the water at the swimming pool. The first time, defendant placed his hands on K.V.'s buttocks outside K.V.'s swimming trunks, but the second time defendant placed his hands inside the trunks. McKenzie decided to remove K.V. from the pool. On the way home, McKenzie asked K.V. whether defendant had touched him anywhere else. K.V. hesitated, then replied that defendant had touched him on his "pete," the word K.V. used to refer to his penis. Back at their apartment, McKenzie asked K.V. whether defendant had ever touched him "any other time." K.V. responded, yes, up in his apartment. K.V. said, "Ty put his mouth on my pete."

McKenzie notified the police, and police officer Dan Street interviewed K.V. on the evening of August 7, 1995, in the presence of McKenzie and Jensen. The adults' account of what K.V. said that evening was essentially the same as K.V.'s testimony at trial. K.V. stated that he talked with "Ty" at a picnic table. Ty told him that he would give K.V. two seashells if K.V. would come to Ty's apartment. K.V. agreed. Once K.V. was inside Ty's bedroom, Ty pulled down K.V.'s shorts and underpants. Ty then placed his mouth and hands on K.V.'s "pete." Ty then gave K.V. two seashells in exchange for K.V.'s promise not to tell anyone what had happened. Ty also gave K.V. a note to take to his mother. K.V. gave his mother the note when he returned home. The next day, he gave the seashells to two of his day-care teachers. Those teachers both testified that they received a seashell from K.V. in early August 1995.

Police officer Richard Hazen testified that on August 9, 1995, he interviewed defendant in the intake area of the Macon County jail. Defendant told Hazen that he "had gone to a Cubs game in Chicago and spent the night prior to that and had returned home later in the day on [July 30, 1995]." Defendant further told Hazen that he "may well have" spent some time with K.V. on July 30, 1995, but K.V. had not been in defendant's apartment on that date, although K.V. had been in the apartment "sometime Prior to the 30th." When Hazen asked defendant why K.V. had been in the apartment, defendant did not respond.

K.V. could not identify defendant at trial. However, at trial defendant was clean shaven and wore eyeglasses, while at the time of the alleged offense defendant ...


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