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People v. James

July 3, 2002

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
FRANK JAMES, SR., DEFENDANT-APPELLANT.



Appeal from Circuit Court of Champaign County No. 00CF1454 Honorable Jeffrey B. Ford, Judge Presiding.

The opinion of the court was delivered by: Justice Knecht

Released for publication.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
FRANK JAMES, SR., DEFENDANT-APPELLANT.

Appeal from Circuit Court of Champaign County No. 00CF1454 Honorable Jeffrey B. Ford, Judge Presiding.

The opinion of the court was delivered by: Justice Knecht

After a January 2001 trial, a jury convicted defendant, Frank James, Sr., of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 1998)). In February 2001, the trial court sentenced him to 28 years' imprisonment. Defendant appeals, arguing (1) plain error occurred when the trial court instructed the jury with a modified pattern jury instruction that stated "sexual penetration" means any contact, however slight, between the sex organ of one person "and an object or finger" (emphasis added) of another; (2) plain error occurred when the court instructed the jury that defendant could be convicted if the jury found his actions were reckless; (3) the court erred in denying a new trial based on the prosecutor's closing remarks; (4) admission of out-of-court statements by the complaining witness to others (725 ILCS 5/115-10 (West 1998)) violated defendant's confrontation clause rights (U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, §8); (5) his attorney was constitutionally ineffective for failing to object to improper jury instructions, the prosecutor's closing argument remarks, and admission of hearsay statements; and (6) the truth-in-sentencing provision is unconstitutional in that it treats similarly situated individuals dissimilarly and is not rationally related to its espoused purposes. We reverse.

I. BACKGROUND

The State charged defendant with one count of predatory criminal sexual assault of a child in that he "placed his finger in the sex organ" of A.L. The charges arose from an incident which occurred on the evening of March 6, 2000. Defendant was visiting in the home of his granddaughter, K.L., her sister, A.L., and the mother of both girls, Stephanie L. K.L. was six years old and A.L. was nine. Stephanie drove defendant home and both girls accompanied her. When they arrived at defendant's home, defendant asked Stephanie if the girls could come in for a moment so that he could give them some candy. Defendant had given the girls candy before and Stephanie allowed the girls to go in with defendant while she remained in her car.

A.L. testified when she and K.L. entered defendant's home she got a piece of candy. Defendant told K.L. to remain downstairs and he picked up A.L. and took her upstairs. A.L. was wearing shorts and defendant reached inside her shorts and underwear and touched her with two fingers. When asked where she was touched, A.L. pointed to the lower part of her body below the waist. A.L. stated the word she used for that part of her body was "private part." She stated this part was close to her legs and had an inside and outside. She stated defendant touched her inside. This took only a short time. A.L. then went back downstairs, took hold of K.L.'s hand, and returned to Stephanie's car. There she told her mother "[defendant] touched me."

K.L. testified she remembered a night when defendant gave her candy. He took A.L. upstairs. When she and A.L. left, they went to their mother's car and A.L. had been crying.

Stephanie testified the girls were gone no longer than five minutes. She told the police on March 6, 2000, the girls were inside only two to three minutes. A.L. was crying when she returned and told Stephanie defendant had touched her. Defendant came out of his home and Stephanie approached him and asked him "what did you do touching my daughter?" Defendant acted like he did not know what she was talking about and gave no explanation.

Returning home, Stephanie called the police and an officer came and interviewed her and the two girls at their home. Later, an officer called and instructed her to take A.L. to a hospital emergency room.

At the hospital, Sue Bacevich, a nurse practitioner, examined A.L. A.L. told Bacevich defendant put his finger in her "private part." When asked to indicate to Bacevich where exactly defendant touched her, A.L. referred to nothing more specific than "the area between her legs." Upon examining A.L., Bacevich noted three little abrasions at the very bottom of the vaginal opening, at the posterior, between the vagina and the rectum. Bacevich found this to be consistent with A.L.'s story. Scrapings from under defendant's fingernails did not reveal deoxyribo-nucleic acid (DNA) matching A.L.

Officer Lance Kerney interviewed A.L. at her home on the night of March 6, 2000. He stated A.L. told him her grandfather put his finger in her private part.

Sergeant Michael Schlosser testified he interviewed A.L. at the hospital on the night of March 6, and she told him defendant put his finger in her "private" and pointed to the area between her legs.

Officer Kerney spoke with defendant at his residence in the early morning hours of March 7, 2000. Defendant told Kerney he and the girls stayed downstairs the entire time while the girls ate candy.

Sergeant Schlosser also spoke with defendant after he spoke with A.L. Defendant told him he had gone in the home with the two girls to give them some candy. A.L. started to walk upstairs and he picked her up off the stairs and put her back downstairs. They remained downstairs and the girls left.

Defendant testified at trial that while he was the grandfather of K.L. only, he considered himself to be A.L.'s grandfather, too. He stated when Stephanie drove him home on March 6, 2000, he asked if he could give the girls some candy and they went into the house with him while Stephanie waited in her car out front. He left the door open. K.L. stopped at the coffee table for candy. Defendant continued walking toward the kitchen with A.L. beside him. A.L. then headed upstairs. Defendant stated he grabbed her and told her not to run up the stairs. When he grabbed A.L., he lost his balance and went to one knee on the stairs. He grabbed A.L. around the waist and stated when he lost ...


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