Appeal from the Circuit Court of Winnebago County. No. 97--CF--581 Honorable Frederick J. Kapala, Judge, Presiding.
The opinion of the court was delivered by: Justice Inglis
IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS
Defendant, Leopoldo Barraza, appeals his conviction of aggravated criminal sexual abuse (720 ILCS 5/12--16(c)(1) (West 1996)). Defendant contends that (1) he was denied a fair trial by the prosecutor's closing argument in which he argued facts outside the record and personally vouched for the credibility of the State's witnesses, and (2) that his fine must be vacated because the trial court failed to determine that he was able to pay.
Defendant was indicted on two counts of aggravated criminal sexual abuse for acts he allegedly committed against A.D. and S.D. A.D. testified that in 1994 she lived with her mother, her stepfather, her sister, and her brother in Rockford. Defendant and his "wife," Andrea, also lived with them. (It appears that defendant was not actually married to Andrea at this time, although they later married.)
A.D. testified that defendant touched her in bad ways approximately eight times. Once, when she was doing the dishes, defendant came up behind her and started rubbing her shoulders. He then touched her breasts over and under her shirt. She told him to stop and he left the room. Defendant did the same thing another time when A.D. was doing homework. A third time, while she was sitting on the couch, defendant "went to go between" her legs, but she pushed him away.
S.D. testified that once while she was watching television defendant reached over and grabbed her between her legs. She then got up and left the room.
A.D. testified that she did not tell anyone about these incidents until January 1997 because she did not want to ruin her mother's friendship with Andrea and because she was afraid her father would get custody of her. She eventually confided in some friends and then talked to a school counselor.
Rockford police officer Raymond Gonzales testified that he interviewed defendant in Spanish and defendant gave a statement. Defendant said that once in May or June 1994 he started to massage A.D.'s shoulders while she was doing dishes. She acted like she did not like it, so he left the room. Another time, he walked into the living room while A.D. was watching television. He sat on the armrest and put his arm around her to give her a friendly hug. He accidentally touched her breast but did not intend the contact to be sexual. Another time, A.D. was sitting on the floor watching television and he playfully pushed her left shoulder. As he did so, his hand slipped off her shoulder onto her chest and she fell over onto her side. Defendant denied ever touching A.D. or S.D. in a sexual manner.
Defendant testified and denied touching A.D. or S.D. for sexual gratification. The jury found defendant guilty of the aggravated criminal sexual abuse of A.D. but not guilty as to S.D. The court sentenced him to four years in prison. After his posttrial motion was denied, defendant filed a timely notice of appeal.
Defendant first contends that the prosecutor's rebuttal closing argument denied him a fair trial. In his closing argument, defense counsel suggested that A.D. and S.D. were not credible because they waited more than two years to report the alleged abuse. In rebuttal, the prosecutor recounted at length a conversation he had had with his 10-year-old daughter. The prosecutor stated that although he had repeatedly told his daughter to tell him if she received a "bad touch," she stated that if she were touched inappropriately she would not tell anyone about it because it would be too uncomfortable to talk about it.
Defense counsel objected to this argument twice. After the first objection, the trial court told the jury:
"Ladies and gentlemen, I want to explain to you that you are the Judges of the facts of this case and Mr. Smith is giving you an example. But the facts of this--but the facts of this example are not a recitation or a summary of the facts of this case. So I want you to take his comments with the understanding that he's giving you an example so that you can analyze that example to the issues that you have to determine in this case."
Following the second objection, the court admonished the jury as follows:
"Ladies and gentlemen, I want to again remind you that the facts of this incident or this chain of events that Mr. Smith is telling you does not have anything to do with the facts of this case other than providing an example of an incident from which Mr. Smith wishes to make certain analogies to this case. But those facts are not connected with this case and you cannot--should not considered ...