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People v. Lopez

March 21, 2002

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
ISMAEL LOPEZ, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Du Page County. No. 98-CF-2702 Honorable Perry R. Thompson, Judge, Presiding.

The opinion of the court was delivered by: Justice O'malley.

Released for publication March 27, 2002.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT,
v.
ISMAEL LOPEZ, DEFENDANT-APPELLEE.

Appeal from the Circuit Court of Du Page County. No. 98-CF-2702 Honorable Perry R. Thompson, Judge, Presiding.

The opinion of the court was delivered by: Justice O'malley.

PUBLISHED

 Defendant, Ismael Lopez, was charged under section 12--16(c)(1)(i) of the Code of Criminal Procedure of 1963 (Code) (720 ILCS 5/12--16(c)(1)(i) (West 1998)) with aggravated criminal sexual abuse. Specifically, the indictment alleged that defendant "knowingly fondled the vaginal area of [B.B.] for the purpose of the sexual arousal of the defendant." On defendant's motion, the trial court ordered the State to produce B.B. for a physical examination by a physician retained by the defense. The victim's family refused to produce her for the examination. Defendant then moved for an order barring the State from introducing any evidence or testimony from B.B.'s examining physicians concerning their physical examinations of her. Denying the State's request for a hearing, the trial court granted the motion. We vacate the order granting defendant's motion for an independent physical examination of B.B. and remand the cause.

BACKGROUND

Suspecting that B.B. was being sexually abused, her grandmother made an appointment with B.B.'s physician, Dr. E. Anderson. B.B. was 20 months old at that time. In a report dated December 1, 1998, Dr. Anderson noted "an adhesion of the labia with a synechial scar of the tissue touching together, covering the opening of the [vagina] and obscuring the hymen." The labia was "moderately red." Dr. Anderson further stated, "A careful exam of the labial origin post to this shows a small false passage, suggestive of partial tearing." Dr. Anderson was not able to inspect B.B.'s hymen adequately. When he attempted to separate B.B.'s labia or view her vagina, B.B. reported discomfort and then "with[drew] from the situation." Dr. Anderson's conclusion was "suspected sexual abuse based on the apparent scar tissue surrounding the vagina." He explained:

"I cannot 100% [rule out] that this is a developmental anomaly, but due to the tear post, I feel this probably is traumatic. Certainly, visualization of the hymen would provide additional useful info[rmation] for a definitive [diagnosis], although the synechia is suggestive of previous scarring and raw edges coming together, suggestive of trauma. *** Due to the swelling of the tissues, I should note that it was difficult to decide whether the tissue adhesion was with the labia minora or with the actual [vaginal] wall, although it would appear to be most likely labial."

Dr. Meghan Flannery examined B.B. soon after Dr. Anderson's examination. She examined B.B. in the "frog leg" and "knee/chest" positions and prepared 17 colposcopic photographs of B.B.'s vaginal region. In her notes of December 3, 1998, Dr. Flannery reported:

"Thin hymenal rim with partial obliteration of the rim posteriorly. Edges of the hymen are thickened. Notched areas at approximately the two o'clock and ten o'clock positions. Widened elongated hymen. Exam suspicious for trauma most likely consistent with digital penetration."

In February 1999, the State gave the defense the reports of Drs. Flannery and Anderson but not the photographs Dr. Flannery had taken during her examination. Although Dr. Flannery's report indicated that she had taken photographs during the examination, the defense did not request the photographs until September 1999. The defense received the photographs from the State in October 1999.

In January 2000, when B.B. was about three years old, the defense moved the court to order the State to produce B.B. for an independent gynecological examination by the defense's expert, Dr. Ramona Slupik. In its motion, the defense asserted that Dr. Slupik was "unable to concur in the findings of Dr. Flannery" and that Dr. Slupik believed "that after conducting her own examination of [B.B.], she would be able to come to a conclusion whether there is medical evidence consistent with digital penetration, as found by Dr. Flannery." The defense submitted an affidavit of Dr. Slupik, in which she stated in relevant part:

"I have reviewed medical records as well as colposcopic (magnified) photographs taken by Dr. Flannery at the time she examined the alleged victim on December 17, 1998. In addition to other findings, Dr. Flannery found a partial obliteration of the rim posteriorly. Based upon my review of the medical records I am ...


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