Appeal from the Circuit Court for the 12th Judicial Circuit, Will County, Illinois No. 99-CF-534 Honorable Gerald R. Kinney, Judge, Presiding
The opinion of the court was delivered by: Justice McDADE.
The defendant, Shannon Donoho, was convicted of one count of criminal sexual assault and four counts of aggravated criminal sexual abuse following a jury trial. At the sentencing hearing, defendant was sentenced to a 14-year term of imprisonment for the criminal sexual assault and concurrent terms of 7 years of imprisonment for each of the aggravated criminal sexual abuse convictions. Defendant appeals from his convictions and sentences. We reverse and remand.
Defendant was tried under a five-count indictment. The first count charged criminal sexual assault, alleging that the defendant, the stepfather of K.B., knowingly committed an act of sexual penetration with K.B., who was under 18 years of age at the time, in that he placed his mouth upon her vagina. He was also charged with and tried for four counts of criminal sexual abuse. The first two counts of criminal sexual abuse alleged that the defendant committed acts of sexual conduct with K.B., who was under the age of 18 years of age at the time, in that he knowingly touched her vaginal area and knowingly made her place her hand on his penis for the purpose of his sexual arousal. The last two counts of criminal sexual abuse alleged that the defendant committed acts of sexual conduct with his stepson, D.B., who was under 18 years of age at the time, in that he knowingly touched D.B.'s penis and he knowingly placed D.B.'s hand on his penis for the purpose of his sexual arousal.
Prior to the trial the State filed a motion seeking to admit evidence of prior sexual offenses pursuant to Section 115--7.3 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115--7.3 (West 2000)). Specifically, the State sought to admit evidence that in 1983 the defendant pled guilty to indecent liberties with a child. In his signed confession from the 1983 incident, the defendant admitted to inappropriate sexual contact with a 7 year-old girl and an 11 year-old boy. After a hearing on the State's motion, the court ruled that the evidence regarding the 1983 plea of guilty would be admitted.
At the trial, both K.B. and D.B. testified regarding the allegations against the defendant. Specifically, K.B. testified that beginning around Christmas in 1995, and continuing until November of 1998, the defendant had committed several acts of sexual misconduct against her. She stated that he had, on several occasions, asked her to pull down her pants and had touched her vaginal area. In addition, on one occasion he had kissed her vaginal area. Finally, the defendant, on several occasions, had asked her to touch or rub his penis. On one such occasion, "yellowish white stuff" came out of his penis.
D.B. testified that the defendant also committed acts of sexual misconduct against him. Specifically, D.B. testified that on one occasion the defendant touched his "pee pee" behind a tree near the house. D.B. also testified that on one occasion while he was riding with the defendant in the car, the defendant touched his "pee pee" and made D.B. touch the defendant's "pee pee." Finally, D.B. testified that on one occasion when he was showering with the defendant at the latter's mother's house, the defendant made him touch the defendant's "pee pee."
K.B. testified that she did not tell her mother about these incidents until April of 1999. She had spoken with a girl at school, who had told her about her sister who had been molested. After hearing about her friend's sister, K.B. told her friend what had happened to her. Her friend encouraged her to tell her mother. That day, K.B. went home and talked to her brother. They then told their mother about the defendant together.
Lori Donoho, K.B. and D.B.'s mother, testified at trial that she did not have any indication that the defendant was sexually abusing or assaulting the children prior to April of 1999. By that time, the defendant had moved out of the house and had filed for divorce. After the children told her about the incidents, she contacted the police and the children gave a statement. She testified that, in retrospect, she should have noticed that the children, over time, developed an aversion to being alone with the defendant.
Terry Marchetti testified that he was involved in the investigation of the 1983 incident. In their original discussion, the defendant had only admitted to touching the young girl. However, after being told by the investigators that his statement was not consistent with that of the children, he did admit to both touching the girl and having the boy touch him.
Officer Michael Imhof and the Department of Children and Family Services investigator, Dave Albert, testified that they investigated the allegations in this case. They spoke with the defendant after learning of the children's claims and informed him that there were serious allegations of sexual abuse against him. They specifically stated that they did not tell the defendant who had made the allegations.
They testified that at first the defendant was very angry about the allegations. After some periods of silence, he admitted that he had fondled K.B. while giving her a bath. After another period of silence, they told the defendant that that was not the only allegation of sexual abuse against him. The defendant then admitted that D.B. once grabbed his penis when they took a shower together.
After a few more moments of silence, the defendant, according to Imhof and Albert's testimony, broke down and indicated that his life was "f---ed up" and that he had been "haunted" for the past 27 years. The defendant told them about the prior incident, falsely indicating that it had been a misunderstanding involving a girl almost 13 years old. He never told them that the earlier incident actually involved a 7 year-old girl and an 11 year-old boy. The defendant also told Imhof and Albert that he had been molested as a child.
Following the presentation of the State's case the defendant moved for a directed verdict. That motion was denied, and the defendant testified on his own behalf. He stated that he filed for divorce from Lori Donoho on November 30, 1998. At the time of the trial, the divorce was still pending and they had a custody issue over their minor daughter. The defendant denied the allegations by the stepchildren, saying that they were "all lies." The defendant also denied telling Imhof and Albert that he had touched the children or that the children had touched him. He did, however, admit to telling them that his life was "f---ed up."
The defendant presented no other evidence relating to the factual allegations at issue in the case. He did have his pastor testify regarding his reputation for morality and chastity in the church community. The defendant's mother also testified that the defendant got along well with K.B. and D.B.
The jury found the defendant guilty of all five charges. Defendant filed a motion for a new trial claiming error in the admission of evidence of the 1983 incident. The court denied the motion, and a sentencing hearing was set.
At the sentencing hearing, the State presented a certified copy of the defendant's prior conviction for indecent liberties with a child. The State argued that the prior plea of guilty enhanced the offense for aggravated criminal sexual assault from a Class I to a Class X felony. Defense counsel agreed that the enhancement was applicable. As a Class I felony, aggravated sexual assault carried a penalty ...