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People v. Bowen

August 06, 1998

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE, V. ANDREW P. BOWEN, APPELLANT.


The opinion of the court was delivered by: Chief Justice Freeman

Agenda 8-March 1998.

Defendant, Andrew P. Bowen, was charged with aggravated criminal sexual assault (720 ILCS 5/12-14(b)(1) (West 1994)) following an alleged act of oral penetration upon D.M.P., then age three. Prior to trial, the State moved to allow into evidence a videotaped statement given by D.M.P. relating the events of the alleged assault. 725 ILCS 5/115-10 (West 1994). A hearing was held pursuant to section 115-10 of the Code of Criminal Procedure of 1963, after which the court determined that the time, content and circumstances of the videotape provided sufficient safeguards of reliability. 725 ILCS 5/115-10(b)(1) (West 1994). The court admitted the videotape, and, after a bench trial, found defendant guilty of aggravated sexual assault and sentenced him to nine years' imprisonment. Defendant appealed, contending that (1) the admission of the videotape was a violation of section 115-10 of the Illinois Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-10 (West 1994)) or, alternatively, of his rights under the confrontation clause, and (2) the State failed to prove him guilty beyond a reasonable doubt. The appellate court disagreed and affirmed the conviction. 289 Ill. App. 3d 378. We granted defendant's petition for leave to appeal (166 Ill. 2d R. 315(a)) and now affirm the appellate court.

I. BACKGROUND

The incident giving rise to defendant's conviction occurred in late spring or summer of 1992 while defendant was baby-sitting for D.M.P. and her brother Donnie, then age four. D.M.P., age 7 at the time of trial, was found qualified to testify and was the State's first witness. D.M.P testified that defendant used to baby-sit for her at her Aunt Vonnie's house. She was unable to recall what he looked like, or her own age when the incident occurred, but believed she was in kindergarten at the time. D.M.P. testified that on one occasion, while she and defendant were in the living room of Vonnie's house, defendant pulled down his pants and underpants and told her to "suck his private part" and instructed her not to tell her mother. D.M.P. testified that when this occurred, there were no other adults in the house, but that Donnie and Vonnie's son Derrick were in another part of the house. D.M.P. additionally testified that defendant "put his private part in [D.M.P.'s] private part." D.M.P. indicated that she remembered a woman named Terri Allen and recalled talking to her about what happened; however, she could not recall a police officer named Rob Copley. On cross-examination, D.M.P. acknowledged that she said "no" when Terri Allen had asked her whether someone had put something in her "butt." D.M.P. denied ever discussing the occurrence with her brother, but testified that she had spoken with her mother, Officer Copley, Terri Allen, and "Cathy" about it.

D.M.P.'s mother, Mary, testified that defendant, whom the children referred to as "Bow" or "Andy Bow," had baby-sat for D.M.P. and Donnie on three occasions during May or June of 1992, while she attended classes. Two of these occasions were at the home of Mary's friend Yvonne Tucker, or "Vonnie." Mary testified that she had planned to get defendant to baby-sit a fourth time; however, she changed her mind when they had gone to pick defendant up, and D.M.P., upon seeing defendant approaching them, began crying and then "got hysterical." Mary indicated that D.M.P. calmed down later that night when she learned defendant was not going to baby-sit. After this incident, Mary ceased using defendant as a baby-sitter.

Mary testified that about one month after D.M.P. had cried upon seeing defendant, Mary, D.M.P. and Donnie were at a friend's house watching cartoons when D.M.P. suddenly revealed that "Andy Bow made her kiss his pee pee." Mary indicated that after that, D.M.P. became upset and said nothing further. Mary testified that she failed to report this incident to anyone, because the attack had occurred over a month before, and she was unsure anyone could do anything about it. Mary indicated that since that time, D.M.P. had mentioned the incident on occasion, but always repeated the same sentence she said initially and never added any further information.

In January of 1995, D.M.P. and Donnie were placed in foster care for circumstances unrelated to this case. On March 29, 1995, family-support worker Laura Richmiller was driving the children for visitation with Mary when the children began arguing. Richmiller testified that Donnie said "so, [D.M.P.], you licked [defendant's] lizard," to which D.M.P. responded "so, he made me do it." The following day, Richmiller reported the statement to her supervisors. Police officer Robert Copley testified that on March 31, 1995, he had two separate Discussions with D.M.P. concerning incidents between her and defendant: the first Discussion took place at D.M.P.'s foster home, and the second was conducted at the police station. The second interview was videotaped, and was taken by Copley in the presence of Terri Allen, an investigator with the Department of Children and Family Services (DCFS). D.M.P. was six years old at the time of the interviews. According to Copley, D.M.P.'s statement of events in the first interview was substantially the same as the description she gave on the videotape; the only difference was that in the first interview D.M.P. had indicated that "pee" had come out of defendant's "area," whereas on the tape, she denied this fact. Copley testified that in the first interview D.M.P. initially denied that anyone ever touched her private areas, and responded "I don't know" to some questions; however, after 5 to 10 minutes, she was able to "warm up" to them and then discussed the occurrence. Finally, Copley testified that D.M.P. was unable to identify defendant as the perpetrator in a photographic lineup shown to her.

During Copley's testimony, the videotape was admitted into evidence and played for the court. At its Conclusion, Copley confirmed that it accurately reflected the entire statement taken from the child at the police station. On the videotape, D.M.P. accurately distinguished between a "good touch" and a "bad touch" and identified relevant parts of the male and female anatomy using dolls. She also used the dolls to illustrate the various physical positions of her and defendant during the alleged abuse. D.M.P. stated that "Andy Bow" had given her a bad touch more than once, at Vonnie's house and at another house. She could not recall precisely when it occurred, but stated that it was a long time ago. D.M.P. stated that "Bow" had put his "area" in her mouth, in her "behind," and in her "area." D.M.P. also insisted that "nothing came out" of Bow's "area" at that time. When asked how many times this occurred, D.M.P. responded 19 times. She indicated that her brother referred to a male "area" as a "lizard."

On April 11, 1995, Copley brought defendant to the police station and apprised him of D.M.P.'s allegation of sexual assault. Copley testified that defendant initially denied ever touching D.M.P. other than to play games with her or change her diapers. Then, when confronted with D.M.P.'s precise statements, defendant responded that he could not recall whether such events had occurred or not. On April 22, 1995, defendant returned to the station and gave a tape-recorded statement in which he acknowledged sexual contact between him and D.M.P. In the tape defendant acknowledged baby-sitting for D.M.P. on three occasions, including at Vonnie's house. Defendant stated that during one of these times, he was stepping out of the shower when D.M.P. grabbed his penis and put it in her mouth for a second. He stated that his penis was erect but that he did not ejaculate. Defendant indicated that on another occasion, D.M.P. sat on his lap and "made a sled" by sliding up and down on his thighs and rubbing her "butt" against his penis. According to defendant, this occurred for about one or two minutes, before he removed D.M.P. from his lap. Defendant acknowledged it was possible that these events occurred in May 1992.

The defense presented the testimony of Vonnie Tucker and Theresa Sprinkle, a co-worker of Tucker in May 1992, attempting to show that defendant did not baby-sit for D.M.P. at the times claimed by the prosecution. According to Tucker, after she married in March of 1992, defendant no longer baby-sat for her children or Mary's children in her home.

On appeal, the court first found there was sufficient evidence to support defendant's conviction. The court then determined that the videotape of D.M.P.'s statement was properly admitted under section 115-10 of the Code. The court found "no reasoned distinction between a videotape of a child's statements and a third person testifying verbatim to those same statements," the latter being expressly allowed under section 115-10. Bowen, 289 Ill. App. 3d at 388.

II. ANALYSIS

As a preliminary matter we must rule upon a motion brought by the State and taken with this case. In his reply brief, defendant asks us to consider a statute from another state which he maintains is an "excellent example" of legislation that allows for the introduction of videotaped statements of children in sexual abuse cases. The State has moved to strike this statutory reference on the basis that it asserted additional matter not raised by the arguments in the State's brief. 155 Ill. 2d R. 341(g). We deny the State's motion, but point out that defendant's reference to another state's statute lacks relevance to this case. Our task here is not to rewrite section 115-10 or to determine the best means to accomplish the purpose intended by our legislature in enacting that section. We merely ascertain whether the videotaping procedure was contemplated under our statute, and whether section 115-10 accomplished its purpose in a manner consistent with the confrontation clause. See California v. Green, 399 U.S. 149, 155, 26 L. Ed. 2d 489, 495, 90 S. Ct. 1930, 1933 (1970). The reference to a foreign statute has no significant bearing on this determination.

We first consider defendant's contention that the videotape was erroneously admitted under section 115-10. The State contends that defendant has waived his arguments on this issue because he failed to raise specific objections at trial and in his post-trial motion. See People v. Miller, 173 Ill. 2d 167, 191 (1996). Regardless of the waiver, however, we choose to address the merits of defendant's contentions.

A. Statutory Construction

First, defendant argues that the plain language of section 115-10 does not allow for the introduction of a videotaped version of the child's statement. Section 115-10 states:

"(a) In a prosecution for a physical or sexual act perpetrated upon or against a child under the age of 13 ***, the following evidence shall be admitted as an exception to the hearsay rule:

(1) testimony by such child *** of an out of court statement made by such child *** that he or she complained of such act to another; and

(2) testimony of an out of court statement made by such child *** describing any complaint of such act or matter or detail pertaining to any act which is an element of an offense which is the subject of a prosecution for a sexual *** act perpetrated upon or against a child ***.

(b) Such testimony shall only be admitted if:

(1) The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide ...


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