Appeal from the Circuit Court of Boone County. No. 96--CF--33. Honorable Alford R. Penniman, Judge, Presiding.
Rehearing Denied December 24, 1997. Released for Publication December 24, 1997.
The Honorable Justice Bowman delivered the opinion of the court. Geiger, P.j., and Inglis, J., concur.
The opinion of the court was delivered by: Bowman
The Honorable Justice BOWMAN delivered the opinion of the court:
On September 12, 1996, the jury found defendant, Alvin Van Brocklin, guilty of one count of predatory criminal sexual assault of a child (720 ILCS 5/12--14.1(a)(1) (West 1996), in connection with an act of sexual penetration he committed against his grandson, A.S., on February 26, 1996. On October 29, 1996, the trial court sentenced defendant to 11 years' incarceration. Defendant now appeals his conviction and sentence. We affirm.
The following summary of facts is taken from the record. Tammy Van Brocklin, A.S.'s mother and defendant's daughter, lived with defendant at his home. On February 26, 1996, Nikki Schultz, a friend of Tammy's, entered defendant's home and observed him sexually assaulting five-year-old A.S. On March 5, 1996, defendant was charged by information with one count of predatory criminal sexual assault of a child, in violation of section 12--14.1(a)(1) of the Criminal Code of 1961 (720 ILCS 5/12--14.1(a)(1) (West 1996)).
On June 11, 1996, pursuant to section 115--10 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115--10 (West 1996)), the trial court conducted a hearing regarding the admission of hearsay testimony of A.S. Nikki Schultz testified that on February 26, 1996, she had a conversation with A.S. in the bedroom of her home. A.S. asked her "if grandpa told [Schultz] about his secrets, their secrets." She told A.S. that she knew about the secrets, even though she did not, because she believed that A.S. was hiding information. According to Schultz, A.S. then stated that he and defendant "would lick each others pee-pees [and] lick each others['] butts *** [and] that grandpa would play with his butt. [Defendant] would put his pee-pee in [A.S.'s] butt *** [and A.S.] would put his pee-pee in [defendant's] butt." Schultz testified that she did not ask A.S. questions before or during the time in which he described his activities with defendant; in other words, the information A.S. provided to her was unsolicited. After hearing A.S.'s story, Schultz called the Department of Children and Family Services (DCFS). Thereafter, with the consent of DCFS, Schultz took A.S. to the hospital.
On cross-examination, Schultz stated that A.S. was not complaining of injury, upset, or crying at the time he provided her with the "secrets." She admitted that, when she removed A.S. from defendant's home, she told him that "grandpa does naughty things." Schultz was later recalled by the State, and she testified that A.S. told her that when defendant "wouldn't cut his fingernails red stuff would come out of his butt." She admitted that A.S. provided this information in response to her question of whether defendant "ever did anything to hurt" A.S.
Martrice Williams testified that she is a child protection investigator with DCFS. On February 27, 1996, she interviewed A.S. by asking him nonleading questions so as not to put "words into the child's mouth." A.S. told Williams that at night he slept in the same bed as defendant. Williams then conducted an anatomical inventory of A.S. A.S. was able to identify his body parts, including his "pee-pee" and "butt." A.S. stated that defendant "stuck his finger up my butt." A.S. told Williams that this occurred once per day either in the shower or bedroom of his home. A.S. also told Williams that "only grandpa" treated him in this manner. A.S. indicated that defendant used his index finger to penetrate A.S.'s anus.
Williams asked A.S. whether there were any more "secrets." A.S. responded that "he licks my butt and *** my pee-pee." A.S. told Williams that "he" was "grandpa" and that "grandpa" was "Alvin." A.S. told Williams that he also licked defendant's "pee-pee" and "butt." A.S. described defendant's "pee-pee" as "big," and his "butt" as "big and white." A.S. stated that defendant's "pee-pee" was "standing up." A.S. demonstrated his and defendant's actions on anatomical dolls provided by Williams. Finally, A.S. told Williams that he was telling the truth.
On cross-examination, Williams admitted that she did not ask A.S. about any events which had specifically occurred on February 26, 1996. However, on redirect, Williams stated that it would not be unusual for a five-year-old such as A.S. to not remember any specific dates on which he was abused; to a five-year-old, "everything happened a few minutes ago."
Detective Mark Pollock of the Belvidere police department testified that on February 28, 1996, he was present during Williams' interview of A.S. He observed the interview from an adjacent room through a one-way mirror. Pollock's testimony corroborated that of Williams', including how A.S. demonstrated licking defendant's "butt" on an anatomical doll.
At the conclusion of Pollock's testimony, the trial court determined that "the time, content, and circumstances of the statements provide sufficient safeguards of reliability." The trial court therefore ordered that A.S.'s hearsay statements, as offered by Schultz, Williams, and Detective Pollock, would be admitted as evidence under section 115--10(b)(1) of the Code (725 ILCS 5/115--10(b)(1) (West 1996)).
On September 9, 1996, the trial court held a hearing pursuant to section 106B--5 of the Code (725 ILCS 5/106B--5 (West 1996)) in order to determine whether A.S. could testify at trial via closed circuit television. Martrice Williams opined that, based on her contact with A.S., "it would be very stressful" for him to testify in front of defendant because he would likely believe that he was betraying defendant for revealing their "secrets." As a result, A.S. would not be able to reasonably communicate if he were forced to testify in open court. The trial court found that A.S. "would in fact suffer serious emotional distress such that he [could not] even communicate" if he testified in open court. Accordingly, the trial court allowed the State to take A.S.'s trial testimony outside the courtroom via closed circuit television.
When trial commenced on September 10, 1996, A.S. was the first witness to testify. While A.S. testified in a conference room, defendant and the jury observed A.S.'s testimony on monitors in the courtroom. Defendant was able to communicate with his attorney via a secured telephone line. A.S. stated that he is six years old, attends kindergarten, is able to count to five, and remembers the previous Christmas. A.S. was able to identify various body parts, including a hand, arm, knee, "belly," "butt," and "pee-pee." A.S. stated that he was able to differentiate between telling the truth and telling a lie. He indicated that "it's bad to tell a lie" and "good" to tell the truth. A.S. then testified that defendant touched him "in the butt" in the bedroom of defendant's home. Defendant used his index finger and was the only person to touch A.S. in this manner.
On cross-examination, A.S. stated that "only grandpa" has ever hurt him. A.S. further testified that he likes his "dada," whom he identified as "J.R." J.R. never told A.S. that defendant was "doing bad things" to him. A.S. explained that he used to take showers with defendant, but he does not do so anymore.
Nikki Schultz testified that she had been to defendant's home over a hundred times prior to February 26, 1996, because her boyfriend, Denzil Radabaugh, lived there. Radabaugh is defendant's stepson. On February 23, 1996, Schultz made arrangements with Tammy to baby-sit Tammy's children, including A.S., while Tammy went to Florida. Defendant was present while Schultz and Tammy made their arrangements; he volunteered to watch A.S. over the weekend.
On the morning of February 26, 1996, Schultz arrived at defendant's home to take A.S. to school. Defendant told Schultz that he would pick up A.S. from school and that Schultz should return for A.S. at 2:30 p.m. When Schultz arrived at defendant's home at approximately 1:45 p.m., she knocked on the door but there was no answer. Although she had keys to the house, the door was unlocked. She walked into the house and called for A.S. or defendant. She heard no response. Because she needed to use the rest room, she proceeded in that direction.
Once she opened the bathroom door, she observed A.S.'s and defendant's clothing on the floor. She looked into the mirror, which was directly across the room from the bathtub, and saw defendant "looking downward" while he was in the bathtub. Because of a divider between the bathtub and Schultz' position, defendant was initially unable to see her. Schultz then looked into the bathtub and saw defendant's "left hand on [A.S.'s] buttocks and his left thumb penetrating [A.S.'s] buttocks, anus, and also, he, with his right hand, he was stroking his penis." Schultz was able to observe that defendant's thumb was inside A.S.'s anus "past the first knuckle." Schultz then called defendant a "sick son of a bitch," pushed him back into the faucet, and pulled A.S. out of the bathtub. She then told A.S. that "everything [was] going to be okay."
As she dressed A.S., defendant was "pleading" with her, saying, "don't tell Tammy I'll do anything you ask me to." She took A.S. outside to Tammy's vehicle and drove him to her home in Rockford. During the ride, she did not talk to A.S because she was crying. Upon their arrival in Rockford, she cooked dinner for A.S. but did not speak to him about what she had previously observed. Later in the evening, in her bedroom, A.S. asked her if defendant had told her about "all their secrets." She responded "yes." A.S. then told her that he was "not supposed to tell anybody about them." Schultz asked A.S. whether defendant "made him do things that he didn't want to do." A.S. told her that "when [defendant] doesn't cut his fingernails it hurts his butt and red stuff comes out." A.S. then also told her that he and defendant would lick each other's "butts" and "pee-pees." When they would sleep together, defendant would make A.S. "put [his] butt up in the air and [his] face in the pillow and [defendant] would stick his pee-pee in [his] butt." Thereafter, Schultz contacted DCFS and eventually spoke to Martrice Williams. On February 27, 1996, Schultz took A.S. to a hospital in Rockford where he was examined. Schultz testified that during A.S.'s rectal examination, she "saw a huge hole and *** saw the boy's colon." Finally, Schultz testified that, during the previous year, defendant and A.S. showered together everyday and slept in the same bed every night. Schultz also admitted that she has two prior felony convictions, one for deceptive practices and the other for theft of property in excess of $300.
On cross-examination, Schultz reiterated that, on the ride from defendant's home to her home on February 26, 1996, both she and A.S. were crying. However, she admitted that, in her previous testimony at the section 115--10 hearing on June 11, 1996, she stated that she and A.S. had a conversation in the car. She also admitted that in her previous testimony ...