The opinion of the court was delivered by: Justice O'brien
Appeal from the Circuit Court of Cook County
Honorable Thomas F. Carmody, judge Presiding.
Defendant, John DeWeese, was charged with three counts of aggravated criminal sexual assault against his almost five year old daughter, D. After a bench trial, the court found defendant guilty of aggravated criminal sexual abuse and sentenced him to six years in prison. Defendant appeals, contending (1) the trial court erred in convicting of him of aggravated criminal sexual abuse, which was not charged in the indictment nor was it a lesser included offense of aggravated criminal sexual assault; (2) the trial court abused its discretion in determining that D. was competent to testify; and (3) the mittimus must be corrected so that it accurately reflects the trial court's judgment. We affirm defendant's conviction and amend the mittimus to conform to the judgment entered by the trial court.
At trial, Julia Porreca testified she is the grandmother of D. On August 1, 1995, Porreca was at her daughter's house, watching television with D. Porreca noticed that D. was "lying on her stomach with her hands clenched in front of her, and she was moving her pelvis, *** motioning like up and down like in the sexual act."
Porreca asked D. what she was doing, and D. told her she was "doing exercise." Porreca asked her who told her about this exercise, and D. responded "daddy." Porreca asked D. whether her daddy had said anything else to her, and D. stated "in and out." Porreca asked "in and out where?" and D. said "down there" and pointed to her private parts.
Porreca testified that D. then took her by the hand and led her into the bedroom, where D. picked up a bottle and said "This is the bottle that he used." Porreca asked D. how her daddy had used the bottle, and D. said "it burned and it hurt." Porreca asked D. whether she had told her mommy about this, and D. said "no." Porreca asked D. why she had not confided in her mommy, and D. responded that her daddy told her "he would throw her out the window and that he had a bullet for her."
Julie DeWeese testified she has two daughters, R., and D., and that defendant is her ex-husband and D.'s father. Julie testified that on August 1, 1995, she left her house at around 9 or 10 a.m. Julie's mom (Porreca) babysat while she was away. When Julie returned home in the afternoon, Porreca told her about D.'s allegations against defendant.
Julie testified she spoke with D. the next day, August 2, in the bathroom. Julie asked D. about the "exercises" and D. told her "these are the exercises I do with daddy." Julie asked "for what?" D. responded "for in and out," and then she placed a finger from her right hand in between two fingers on her left hand. Julie testified that she then asked D. whether her daddy touched her "anywhere he wasn't supposed to." D. said "yes," and stated that he touched her on the neck, chest, stomach, buttocks and "chiconnes." Julie testified that "chiconnes" was a family word meaning "vagina."
Julie asked D. what happened when her daddy touched her chest. D. refused to answer, and Julie assured her that she was safe and that nobody would hurt her. D. shook her head and said, "No, no. It's sick. It's sick." After about a minute, D. said, "He would take things and shove them up my hole and it would burn, mommy, and he told me to put my legs together."
Julie asked D. why she never told her about this before. D. responded that her daddy threatened to shoot her and throw her out the window if she talked to Julie.
Julie asked D. to describe the items he put in her vagina, and D. led her into the bedroom and pointed to cologne bottles. Julie asked D. to describe what daddy did with the cologne bottles, and D. said he would "shove them up her hole," that it burned, and that he would then "take a curtain and wipe it." D. told Julie that her daddy used the bottles on her when Julie was out of the house, usually when Julie picked R. up from school or visited a neighbor.
Julie took D. to Loyola Hospital on August 3, 1995, where Doctor Beltran examined her vagina and rectum. D. was upset throughout the examination, screaming that "it burned."
Julie testified that for about a year prior to her August 2 conversation with D., Julie had noticed that D.'s vaginal area was red, and that she suffered from vaginal irritation. Julie did not mention this redness to Julie's doctor because she (Julie) attributed the irritation to factors such as D. having strong urine or failing to wipe herself properly after urination.
The parties stipulated that Doctor Fran Skulavich would testify that D. visited her eight times in 1995, and during those visits the doctor treated D. for a stomach ache, headache, cough, low grade fever, and ...