APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE EDWARD M. FIALA, JR., JUDGE PRESIDING.
The opinion of the court was delivered by: Justice Wolfson
Among the matters to be decided in this predatory criminal sexual assault case is the State's suggestion that we abandon the requirement that the occurrence of a crime cannot be established solely by a defendant's uncorroborated confession -- the corpus delicti rule.
The issue arises from a jury verdict finding Samuel Richmond guilty of two counts of predatory criminal sexual assault of a six-year-old female, R.J. It has impact on one of the counts, where Richmond received a sentence of 60 years. His sentence on the other count, a consecutive term of 30 years, is not affected by our view of the viability of the corpus delicti rule.
Richmond contends: (1) his conviction for one of the counts should be reversed because it was based solely on his confession, contrary to the rule of corpus delicti; (2) he was denied his due process right to a fair trial where the State gave the entire opening statement from the perspective of the victim; (3) his rights to trial by jury and due process were violated by errors in several jury instructions; (4) he was subjected to an improper double enhancement where the trial court sentenced him to an enhanced term of 60 years' imprisonment on one of the convictions based on a factor that was also an element of the crime charged; and (5) the trial court abused its discretion in imposing the sentences.
We reverse one of the convictions and the corresponding 60-year prison term and affirm the remaining conviction and its 30-year prison term. Based on the reversal of the conviction and sentence, we need not address Richmond's contention challenging the 60-year sentence.
Richmond was indicted for, among other things, two counts of predatory criminal sexual assault under 720 ILCS 5/12-14.1(a)(1) (West 1998). The first count charged contact between R.J.'s anus and Richmond's penis. The second charged contact between R.J.'s vagina and Richmond's penis.
At the trial, R.J. testified that on August 8, 1998, she went to her friend Keyshaunda's apartment to see if she could play. Keyshaunda's uncle, Richmond, answered the door and told R.J. Keyshaunda was not home. R.J. then asked to see the baby, Richmond's nephew.
When R.J. went into the house to see the baby, Richmond pushed her onto the bed, pulled down her shorts, "pulled his thing out," and "freaked" her, which R.J. explained meant that he put his private part in her butt. Richmond then went to the bathroom, and R.J. tried to run away. But Richmond came out of the bathroom and did it again. When Richmond stopped, he told her that if she told her parents, he would do it again. He also gave her some money.
After the incident, R.J. ran home crying and told her mother, Felicia Fox, that Richmond "freaked" her. R.J. said repeatedly "it hurts" and pointed down toward her back. When Fox pulled R.J.'s shorts and pants down, Fox saw what she thought was blood on R.J.'s panties, and she pulled R.J.'s shorts back up. Fox took R.J. to Keyshaunda's house, where R.J. identified Richmond. Richmond denied doing anything and told Fox he did not touch R.J. Fox and R.J. left the apartment; Fox called 9-1-1. An ambulance arrived and took R.J. and Fox to South Shore Hospital.
At the hospital, Dr. Chandra Anand examined R.J. R.J. appeared distressed and told the doctor Richmond had put his "thing inside my butt." Dr. Anand found a half-moon shaped tear in R.J.'s anus, which was dilated and was consistent with an unlubricated adult male penis entering into the anus.
While at the hospital, Officer Patricia Watts spoke with R.J. and her mother. Officer Watts then located and arrested Richmond.
After Richmond was taken to the police station, Detective Bradley spoke with him. Bradley advised Richmond of his Miranda rights and asked him about the incident. Richmond denied involvement in the incident. When Bradley explained the allegations against him, Richmond admitted involvement and made inculpatory statements. Richmond repeated his statements to Assistant State's Attorney Steven Rosenblum, who reduced the statements to writing. Rosenblum reviewed the statement with Richmond; Bradley, Rosenblum, and Richmond signed the statement.
Richmond's statement was read to the jury. It was consistent with R.J.'s account in nearly all respects, except for one significant difference. In the statement, Richmond said that before he penetrated R.J.'s anus, "he placed his penis on [R.J.]'s vagina and tried to put it in a couple of times," but could not.
Richmond did not testify or present any witnesses on his behalf.
At the close of trial, the jury found Richmond guilty of both counts of predatory criminal sexual assault. After a sentencing hearing, the trial court sentenced Richmond to an extended term of 60 years' imprisonment on the penis-to-vagina count and to 30 years' imprisonment on the penis-to-anus count.
Richmond contends the evidence was insufficient to support the conviction on the penis-to-vagina count because the only evidence of that crime came from his statement. This, he says, is insufficient because the corpus delicti cannot be proven by the defendant's statement alone.
When reviewing the sufficiency of the evidence, we will reverse a defendant's conviction only if, viewing the evidence in the light most favorable to the State, no rational finder of fact could have found the crime to have been proved beyond a reasonable doubt. People v. Villarreal, 198 Ill. 2d 209, 231, 761 N.E.2d 1175 (2001). To sustain a conviction, the State must prove (1) the corpus delicti (that a crime occurred) and (2) the crime was committed by the person charged. People v. Cloutier, 156 Ill. 2d 483, 503, 622 N.E.2d 774 (1993).
The corpus delicti cannot be proven by a defendant's confession alone. Where the defendant's confession is part of the proof of the corpus delicti, the State must provide independent corroborating evidence. Cloutier, 156 Ill. 2d at 503. The corroborative evidence does not have to prove corpus delicti beyond a reasonable doubt, but must tend to confirm the defendant's confession. Cloutier, 156 Ill. 2d at 503.
The State urges us to abandon the long-standing corpus delicti rule in Illinois because it is inconsistent with the standard of review. We decline.
Our supreme court has repeatedly said independent corroboration is required where the defendant's confession is part of the proof. See, e.g., Cloutier, 156 Ill. 2d at 503; People v. Furby, 138 Ill. 2d 434, 563 N.E.2d 421 (1990). This requirement arose from "historical mistrust of extra-judicial confessions. Two reasons for this mistrust have commonly been cited: confessions are unreliable if coerced; and, for various psychological reasons, persons 'confess' to crimes that either have never occurred or for which they are not legally responsible." People v. Dalton, 91 Ill. 2d 22, 29, 434 N.E.2d 1127 (1982); see also Furby, 138 Ill. 2d at 447. Although urged to reject the corpus delicti rule, the supreme court refused to abandon it. Dalton, 91 Ill. 2d at 29-30. We are bound by this precedent. See People v. Goebel, 284 Ill. App. 3d 618, 624, 672 N.E.2d 837 (1996) ("We are obliged to follow the precedents of our supreme court").
We now consider whether the evidence presented by the State in this case was sufficient to sustain the penis-to-vagina conviction. The charge at issue was brought under section 5/12-14.1(a)(1) of the Illinois Criminal Code of 1961:
"(a) The accused commits predatory criminal sexual assault of a child if:
(1) the accused was 17 years of age or over and commits an act of sexual penetration with a victim who was under 13 years of age when the act was committed." 720 ILCS 5/12-14.1(a)(1) (West 1998).
"Sexual penetration" is defined in relevant part as:
"any contact, however slight, between the sex organ or anus of one person by an object, the sex organ, mouth or anus of another person, or any intrusion, however slight, of any part of the body of one person or of any animal or object into the sex organ or anus of another person, including but not limited to cunnilingus, fellatio or anal penetration." 720 ILCS 5/12-12(f) (West 1998). Under this statute, the State charged contact between Richmond's penis and R.J.'s vagina.
Evidence of contact between Richmond's penis and R.J.'s vagina came entirely from Richmond's statement. In fact, the statement's reference to vaginal contact was brief and non-specific. All the other evidence provided by the State at trial proved only anal penetration. Nothing in the record corroborated the penis-to-vagina portion of Richmond's statement. We also reject the State's contention that mere proximity between R.J.'s vagina and anus tended to prove his penis also came into contact with her vagina. That is pure speculation.
Because the State offered no independent evidence corroborating Richmond's statement about penis-to-vagina contact, the evidence was insufficient to convict Richmond on this count. We reverse this conviction and the 60-year prison sentence. We address Richmond's remaining contentions as they relate only to the conviction based on anal penetration.
The State delivered its entire opening statement in the first-person from R.J.'s perspective. The State began with, "Hi. My name is RJ, and I'm 8 years old *** I'm going to tell you about something that happened a couple of years ago when I was just a little kid." Not long into the opening statement, the State also said, still in the first-person and from R.J.'s perspective, "Now, my State's ...