The opinion of the court was delivered by: Justice Wolfson
APPEAL FROM THNE CIRCUIT COURT OF COOK COUNTY. HONORABLE JAMES SCHREIER, JUDGE PRESIDING.
In a bench trial, Michael Darby (Darby) was found guilty of two counts of aggravated criminal sexual assault and one court of aggravated kidnapping. He was sentenced to consecutive terms of six years on the two counts of aggravated criminal sexual assault and one concurrent six year term on the aggravated kidnapping conviction. He raises issues that require us to examine a legislative act commonly referred to as the rape shield statute (725 ILCS 5/115-7 (West 1996)). We affirm.
The charges arose out of an incident which occurred on October 12, 1995, between Darby and a minor, A.B., in Darby's apartment at 1350 W. Jarvis in Chicago.
Before Darby's trial, defense counsel was provided discovery, which included a file showing A.B.'s involvement with the Department of Children and Family Services (DCFS). This file contained information regarding a child abuse report which alleged that A.B. and her half sister, E.B., had been sexually abused by E.B.'s grandfather in December 1994 and January 1995.The report alleged the grandfather had fondled the children over their clothing. In the course of the investigation of this report, both A.B. and E.B. were examined by Dr. Lorand at the Cook County Hospital on October 27, 1995. Based on this examination, it was Dr. Lorand's medical opinion that both E.B. and A.B. had been sexually abused. Dr. Lorand told a DCFS caseworker the medical evidence indicated sexual penetration, not consistent with digital penetration. Dr. Lorand's records simply say her findings are consistent with sexual abuse. Based on Dr. Lorand's findings, A.B., E.B., and their brother, C.B., were placed in protective custody with DCFS.
The file indicates that A.B., after this examination, told police no one other than E.B.'s grandfather ever touched her vaginal area. She insisted E.B.'s grandfather touched her only over her clothes.
On July 29, 1997, just before trial, the State brought a motion in limine to exclude any reference to the prior report of sexual abuse by E.B.'s paternal grandfather. Defense counsel objected, arguing the information was admissible under People v. Grano, 286 Ill. App. 3d 278, 676 N.E.2d 248 (1996), because the prior accusation was false. The trial court said it would admit the evidence if defense counsel could show the prior complaint was false. Defense counsel said he would be unable to do this since the grandfather was too ill to come to court. The Judge offered defense counsel a short continuance, but this offer was not accepted.
No one mentioned Dr. Lorand's October 27, 1995 finding that both E.B. and A.B. had been sexually, not digitally, abused by penetration. Admissibility of this information never was discussed.
The State moved to exclude any reference to "fighting" going on between DCFS and A.B.'s mother with regard to her ability to care for her daughter. Though A.B. was still in foster care at the time of trial, the State said it did not believe the family situation was relevant to the issues in Darby's trial.
Again, defense counsel objected. He said the abuse of A.B. by her mother was an important aspect of the defense case. It was his intention, he said, to show A.B.'s accusations against Darby were due to "transference," that is, A.B. blaming someone else for an abusive home situation.
The court agreed with the State that A.B.'s family situation was not relevant. The court said defense counsel's claim of transference was too speculative. Still, because it was a bench trial, the court said it would allow some questions regarding abuse by the mother and determine at that time what, if any, relevance the evidence had.
Darby's bench trial began. Nine-year-old A.B. was found competent to testify. She then testified that in October 1995, when she was eight years old, she lived with her mother, her grandmother, two siblings, and an elderly woman named Hilda. The apartment they lived in was across the hall from Darby's apartment.
A.B. said at about 1:30 p.m. on October 12, 1995, she left her apartment with the intention of going to Georgie's, a local restaurant, to buy some lunch. No one in her family was at home except Hilda. A.B. met Darby in the hallway. He asked her where she was going and, when she told him, he decided to accompany her. After purchasing some food at Georgie's, A.B. and Darby returned to Darby's apartment, where they watched television and ate. A.B. said she asked Darby to keep the apartment door open so she would know when her grandmother got home, but Darby refused.
When they were finished eating, A.B. said, Darby picked her up and took her to his bedroom. He placed her on the bed and, pinning her with his body, began kissing her on her lips and neck. A.B. said she struggled to get away and asked Darby to stop, but he refused and kept her pinned on the bed. Darby then pulled down A.B.'s pants and underwear. First he digitally penetrated her vagina, then he penetrated her with his tongue. After this happened, A.B. said, she was able to push Darby off her far enough to escape. She pulled up her pants and ran home.
A.B. said she didn't immediately tell anyone what happened because Hilda was the only one at home at that time. The next day, however, A.B. told her mother. A.B. said her mother took her to a police station, where A.B. repeated her story to an officer. The police officer then took her to the hospital, where a doctor examined her.
On cross-examination, defense counsel asked A.B.: "[W]hile you were living with your mother, did anyone besides [Darby] ever do that to you?" The State objected. The court then allowed defense counsel to tailor the question to: "Did anyone besides [Darby] put their finger inside you? A.B. answered, "No."
A.B.'s mother, Carmen, also testified. She said A.B. told her on October 13, 1995, that Darby had sexually assaulted A.B. the previous day. Carmen said she took A.B. to the police station and the police took them to the hospital. At the hospital, Carmen said, she was present when the doctor examined A.B. and was able to observe that A.B.'s vaginal area was swollen and irritated.
It was stipulated by the parties that Dr. Karen Sheehan, if called, would testify she examined A.B. on October 13, 1995, at Children's Hospital. She observed A.B.'s vaginal area was red and irritated and A.B.'s hymen was torn. Dr. Sheehan would further testify that it was her opinion the redness, irritation, and damage to A.B.'s hymen were consistent with digital penetration of the vagina and that this would have occurred recently, i.e., within a day.
Defendant testified in his own defense. He admitted he had gone to Georgie's with A.B. to get some food on October 12, 1995, but said this occurred around 2:30 p.m., after he took his girl friend to work. After purchasing food, Darby said, they returned to his apartment and ate the food in the kitchen. When they were done eating A.B. returned home.
Later, at about 3:30 in the afternoon, Darby said he received a call from his girl friend, Jenny, to meet her at her job. A.B. saw Darby leaving and asked if she could go along. Darby said he got permission from A.B.'s grandmother, Karen, before taking A.B. with him to the Starbuck's store where Jenny worked. Darby denied touching A.B. in a sexual manner or restraining her in any way. He said he asked A.B., during the car ride to Starbuck's, when A.B. was going to put a stop to the abuse she was receiving at home.
Darby's girl friend, Jenny Williamson, also testified. She said she worked at Starbuck's and on October 12, 1995, began work at 2 p.m. She said she had been home until about 1:45, when Darby drove her to work. Later, at about 3:10 p.m., she called Darby to come back and take her out for an early lunch break. She said Darby returned to Starbuck's at about 3:30 p.m. and brought A.B. with him. Jenny said A.B. was wearing a one-piece outfit and was in high spirits. Jenny said Michael and A.B. waited for her for about an hour, while she met with her district manager. Then, when she realized she wasn't going to be able to get away, she told Darby and A.B. to go home. Jenny testified briefly to an incident she witnessed between A.B. and A.B.'s mother. Jenny said Carmen yelled at A.B. because her pet had an accident on the floor.
In rebuttal, it was stipulated by the parties that Assistant State's Attorney Johnson and Detective Gavin, if called, would testify that on October 14, 1995, they questioning Darby after his arrest. At that time, Darby told them he watched television with A.B. on October 12, 1995, while she ate some french fries. Darby also told them that A.B. asked him to "flip" her after she finished eating. Darby said he tried to toss A.B. in the air, but she was too heavy. Darby suggested ...