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01/22/98 PEOPLE STATE ILLINOIS v. JOSEPH BERNARD

January 22, 1998

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JOSEPH BERNARD BRINK, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Sangamon County. No. 96CF51. Honorable Robert J. Eggers, Judge Presiding.

Honorable Frederick S. Green, J., Honorable Robert W. Cook, J. - Special Concurrence, Honorable John T. McCullough, J. - Concur. Justice Green delivered the opinion of the court.

The opinion of the court was delivered by: Green

The Honorable Justice GREEN delivered the opinion of the court:

On January 13, 1997, following a bench trial in the circuit court of Sangamon County, defendant, Joseph Bernard Brink, was convicted of aggravated criminal sexual assault in violation of section 12-14(b)(i) of the Criminal Code of 1961 (720 ILCS 5/12-14(b)(i) (West 1996)). He was subsequently sentenced to a term of 12 years' imprisonment.

On appeal, defendant maintains (1) the evidence was insufficient to establish his guilt of aggravated criminal sexual assault beyond a reasonable doubt; (2) the trial court erred in allowing into evidence the hearsay statements of T.B. to investigators in violation of section 115-10(b) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-10(b) (West 1996)); (3) the trial court abused its discretion in denying his motion for a new trial; and (4) the trial court abused its discretion in sentencing him to 12 years' imprisonment. We affirm.

On February 8, 1996, defendant was charged by information as follows:

"Between January 1 and May 8, [1995], *** [defendant] committed the offense of aggravated criminal sexual assault, in that said defendant who was 17 years of age or older, knowingly committed an act of sexual penetration with [T.B.], who was under 13 years of age when the act was committed, in that said defendant placed his penis in the mouth of [T.B.]."

At trial, Richard S. Weaver, an investigator with the Illinois State Police, testified that in May 1995, he was assigned to investigate an allegation that T.B. was sexually assaulted by defendant, who is her father. He said the child was six years old and was residing with defendant, her mother, two brothers, a sister, a family friend, and another child. Weaver stated T.B. told him, "my dad makes me suck his privates." He said she stated he does this when her mother is away, usually playing "Bingo," and it occurs in either the bedroom or bathroom. He said T.B. gave details about how the acts occurred and stated her father held her head during the act and would watch down the hall to make sure no one was coming. He said the child appeared "very calm" and said she had not told anyone previously because she was afraid. Weaver stated the report to the police came through a disclosure that was made at school.

Weaver further testified that following his interview with T.B. he conducted an interview with defendant concerning T.B.'s allegations. He testified (1) defendant was angry and denied any sexual contact with T.B.; (2) defendant claimed T.B. had probably observed him and his wife in sexual acts and that T.B was making it up; and (3) defendant described a prior occasion when he had awakened to find his son, Allen, holding defendant's penis.

Weaver described a second interview with defendant several days later, as follows: (1) defendant told Weaver of an occasion where he awakened with an erection, thought it was his wife or his son Allen, and when he looked he realized it was T.B.; (2) defendant said T.B. was on the bed beside him, reaching across and squeezing his penis, and he probably ejaculated; (3) defendant said he had been reluctant to tell Weaver about this incident during the earlier interview because his wife and friends had teased him about a similar incident with Allen.

On cross-examination, Weaver testified he interviewed T.B.'s mother Linda Brink, her brother Allen, her sister Candice, and Ashley Swalley, the daughter of Twyla Falkner, who was living with the Brinks. He said he did not interview Twyla. Weaver stated those interviews did not aid in his investigation of defendant.

Weaver further testified defendant cooperated with the investigation and appeared voluntarily at the investigator's office. He said defendant initially became angry at those allegations but cooperated with the interview. Weaver stated defendant offered, as an explanation, that he and his wife did not wear any clothing while sleeping and T.B. had seen him naked when he was taking a shower. Defendant also mentioned to Weaver that T.B. had walked in on at least two occasions when he and his wife were engaging in sexual intercourse, including when his wife was performing fellatio, and T.B. may have seen him ejaculate.

Weaver admitted there were no physical tests conducted to support T.B.'s allegations, and he did not obtain corroborating evidence from other witnesses. On redirect examination, Weaver testified that in his experience there are no medical examinations to determine whether a person has experienced oral sex.

Cynthia Robbins, an investigator for the Department of Children and Family Services (DCFS), testified she was involved in an interview of T.B. on May 11, 1995, concerning a sexual abuse allegation and two interviews with the defendant. Her testimony completely corroborated that of Officer Weaver with regard to T.B.'s allegations and defendant's denial. She admitted on cross-examination, however, that she reviewed Weaver's report in preparation for trial and did not prepare a separate report of her own.

Robbins further testified the initial interview with T.B. took place at her school, in a break room used by the janitors, rather than at the child advocacy center. She said the investigators did not want to alert T.B.'s parents at that time.

Finally, T.B. testified, describing the acts she alleged happened with her father. She stated (1) she and defendant were doing "something yucky" in the bathroom; (2) she knew the name of that part of defendant's body was "very yucky," but she would not say the name of it other than it started with the letter "p"; (3) the part on his body was "where he zips his pants"; (4) defendant made her suck on it with her mouth; (5) this happened "lots of times"; (6) she sucked it "until he had to go to the bathroom"; (7) he would then go to the toilet and she would run into the front room; and (8) she did not tell her mother because she was afraid she might get into trouble.

On cross-examination, T.B. stated she, her brothers, and her sister would sometimes get into bed with her parents. She said she had never seen her parents naked and her mother wore a nightshirt to bed. ...


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