Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois No. 96--CF--5005 Honorable Gerald R. Kinney Judge Presiding
The opinion of the court was delivered by: Justice Homer
Defendant was charged with three counts of aggravated criminal sexual assault (720 ILCS 5/12--14(b)(1) (West 1994)) and three counts of aggravated criminal sexual abuse (720 ILCS 5/12--16(d) (West 1994)). Following a jury trial, he was convicted and sentenced to 16 years' imprisonment on each count of criminal sexual assault with the sentences to run concurrently. He was further sentenced to five years' imprisonment on each count of criminal sexual abuse to be served concurrently with each other, but consecutively to the former sentence.
Defendant appeals arguing that (1) he was not proven guilty beyond a reasonable doubt; (2) the trial judge erred in making several evidentiary rulings; (3) the prosecutor committed reversible error during his closing argument; (4) the trial judge erred in instructing the jury; and (5) the trial judge abused his discretion in sentencing defendant by considering an improper aggravating factor. We affirm on all issues.
At trial, S.P. testified that her stepfather, defendant, had sexually abused her. The abuse began when she was in the sixth or seventh grade. The first incident occurred when defendant asked her to stay home from school. He asked her to come into his bedroom to talk, gave her an alcoholic drink, and began to talk to her about sex. Defendant then had S.P. perform oral sex on him. Afterwards, she was upset and he said it would never happen again. However, within a few months, defendant performed oral sex on S.P. and had sexual intercourse with her. S.P. testified that the sexual abuse continued through her sophomore year in high school and that the number of incidents were too numerous to count.
She recalled one incident where she and defendant were in the living room and defendant removed her underwear, pulled her pajamas up, and was rubbing her stomach. S.P.'s mother entered the room and began crying and asked what was happening. Defendant and S.P. told her nothing happened. When S.P. was a sophomore in high school, she told defendant that she was not going to allow him to abuse her anymore.
In the summer of 1996, S.P. moved in with the Schotts, friends of the family, to help Mrs. Schott care for her children. S.P. told the Schotts about the abuse by her stepfather following a phone call from her sister.
Tammy Kopczick, defendant's wife and S.P.'s mother, testified that, on one occasion, she awoke in the middle of the night, walked into the living room, and saw defendant and S.P. lying on the floor. S.P. had a pillow over her face and she was crying. Her pajamas were pulled up and she was not wearing underwear. Tammy started screaming and when defendant jumped up, she noticed his jogging pants were pulled down. Defendant cried and said he was sorry. He told her he was just rubbing S.P.'s stomach because she had a stomachache. Defendant and S.P. both told her that nothing happened.
Defendant, a police officer and former police chief, gave a voluntary confession (including a written statement) in which he stated that S.P. had performed oral sex on him a number of times and that he had touched her in a sexual manner. Defendant denied that he ever had sexual intercourse with S.P.. He testified that he confessed because the officer taking his statement told him that the only way defendant could get his family back together again was to admit that he had abused S.P..
Defendant argues that he was not proven guilty beyond a reasonable doubt. Defendant was charged with committing criminal sexual acts both before and after October 1991. He asserts that the evidence was insufficient because S.P. did not testify regarding specific incidents during the latter time period.
Second, defendant contends that S.P.'s testimony was not credible and that she was motivated to lie because (1) she often fought with her parents; (2) defendant made unfulfilled promises that S.P. would get her own bedroom and a car; and (3) she was told that she would have to help pay for college and pay part of the expenses when she moved home after living with the Schotts. Defendant also asserts that S.P.'s testimony was rife with inconsistencies, including the fact that she testified that defendant's hernia scar was on the left side of his body when it was actually on the right.
Further, defendant denies that there was an opportunity to commit the offenses because the house was small and filled with children and defendant was often out in the evenings.
Defendant also questions Tammy's credibility given her purported inconsistent testimony regarding the "living room incident" when Tammy found defendant and S.P. lying on the floor partially clothed. He asserts that when testifying at a hearing for an order of protection, Tammy never mentioned that defendant's jogging pants were pulled down during the incident. Defendant adds that neither he nor S.P. ever testified that anything of a sexual nature occurred during that incident.
Finally, defendant attempts to explain his statements to the police where he admitted that S.P. had performed oral sex on him and that while he was rubbing her stomach (during the "living room incident") his "hand probably touched her vagina." He asserts that after three or four hours of interrogation, he broke down and agreed to admit anything S.P. said about him in order to get his family back.
When presented with a challenge to the sufficiency of the evidence, it is not this court's function to retry the defendant. People v. Gay, 239 Ill. App. 3d 1023, 1026, 607 N.E.2d 299, 301 (1993). Rather, the relevant question on appeal is whether a rational trier of fact, after viewing all of the evidence in the light most favorable to the prosecution, could have found the essential elements of the crime proven beyond a reasonable doubt. People v. Collins, 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277 (1985). The determination of the weight to be given to witnesses' testimony, their credibility, and reasonable inferences to be drawn from the evidence is the responsibility of the trier of fact. People v. Steidl, 142 Ill. 2d 204, 226, 568 N.E.2d 837, 845 (1991). In making its determination, the jury is not required to accept the defendant's version of events but, rather, must consider the probability or improbabilities of his testimony, the circumstances surrounding the incident, ...