Appeal from the Circuit Court of Lee County. No. 01-CF-127 Honorable Tomas M. Magdich, Judge, Presiding.
The opinion of the court was delivered by: Justice O'malley
A jury convicted defendant, Camilo Gonzalez, of one count of predatory criminal sexual assault of a child (720 ILCS 5/12--14.1(a)(1) (West 2000)), one count of aggravated criminal sexual abuse (720 ILCS 5/12--16(d) (West 2000)), and two counts of child pornography (720 ILCS 5/11--20.1(a)(1)(ii) (West 2000)). He appeals, and we affirm and remand with directions.
In May 2001, the State filed a four-count information against defendant. Count I (predatory criminal sexual assault of a child) alleged that, in the summer of 2000, defendant intentionally placed his penis in the mouth of Jenna R., who was under 13 years of age at the time of the act. Count II (aggravated criminal sexual abuse) alleged that, in the spring or summer of 2000, defendant intentionally placed his penis in the mouth of Charlene L., who at the time was between 13 and 17 years of age and at least five years younger than defendant. Count III alleged that, in the spring or summer of 2000, defendant photographed Charlene L. with her mouth around the sex organs of another person. Count IV alleged that, in the spring or summer of 2000, defendant photographed Travis W. with his genitals lewdly exposed. The State alleged that Charlene L. and Travis W. were both under 18 years of age at the time the photographs were taken.
At trial, Bambi Glover testified that she was defendant's neighbor in May and June 2000. She testified that, on June 20, 2000, Patricia Penner, defendant's then-girlfriend, showed Glover two photographs depicting oral sex. Recognizing Charlene in both photographs, Glover took them to the police. Although the photographs are not in the appellate record, the testimony at the trial revealed their content. The first photograph (State's exhibit 1) shows Charlene performing oral sex on a male who is lying on a bed. The second photograph (State's exhibit 3) is a close-up shot of Charlene performing oral sex on a male. In neither photograph is the male's face visible.
Glover acknowledged on cross-examination that she told the police that she recognized the man in State's exhibit 1 as "Rico," defendant's uncle, because of the scar on the man's right hand. However, when shown State's exhibit 1 again on redirect examination, Glover testified that the man in the photograph was in fact scarred on his left hand. Based on this, Glover admitted that she could not discern who was in State's exhibit 1 with Charlene. Glover further testified on cross-examination that she told police that the man in State's exhibit 3 with Charlene was defendant. She admitted, however, that she could not discern who was in State's exhibit 3 with Charlene. Glover also admitted that she once had a relationship with defendant and that they have not been on good terms since it ended. Glover also admitted that she had a felony conviction of delivery of cannabis.
Patricia Penner testified that she rented defendant's trailer for 2½ months from April 2000 to late June 2000. Penner testified that defendant came to the trailer every day after Penner moved in. Defendant invited "many, many young people" to the trailer. Charlene, Jenna, and Travis visited the trailer about once a week. Charlene was often accompanied by Rico. Penner testified that sometimes five to seven teenagers were in the trailer at once. Penner testified that she did not invite the teenagers to the trailer and that they came to see defendant. At one point Penner told defendant that she did not want any more teenagers in the trailer. Penner admitted on cross-examination, however, that Charlene, Jenna, and others visited her apartment before she moved into the trailer. Penner also testified that she and Jenna were close friends and that Jenna confided in her.
Penner testified that, on May 27, 2000, defendant showed Penner a pack of photographs that included State's exhibits 1 and 3. As he showed her the photographs, defendant laughed and said, "I just got my pictures back." After he showed Penner the photographs, defendant placed them in his bedroom. On June 10, 2000, Penner's 13-year-old daughter found the pictures and brought them to Penner, who later showed them to Glover. Penner denied that she was in a relationship with defendant while she lived in the trailer. Penner admitted that in May 2000 she spent two weeks in custody for violating the terms of probation imposed for her felony retail theft conviction.
Lee County sheriff's detective David Glessner testified that in June 2000 he began to investigate the photographs Glover gave police. With Penner's permission, Glessner searched defendant's trailer, where he found in a kitchen cupboard above the refrigerator negatives of the photographs of Charlene engaging in oral sex that Glover took from Penner. Other than these photographs, Glessner found no pornographic material in the trailer.
Glessner testified that he interviewed defendant in the fall of 2000. Glessner showed defendant the photographs, and defendant identified Charlene and Travis. Defendant admitted that he took the photographs to show Charlene's mother because he did not approve of what Charlene and Travis were doing. Glessner did not make a written record of defendant's statement because defendant could neither read nor write.
Glessner testified that he interviewed Charlene in November 2000 and showed her the two photographs. Charlene stated that she was performing oral sex on Travis in one of the photographs (State's exhibit 1) and on defendant in the other (State's exhibit 3). Charlene told Glessner that she gave defendant oral sex because he threatened to tell her mother about her behavior with Travis. When Glessner interviewed Travis later in November 2000, Travis stated that he was in one of the photographs.
Glessner testified that he interviewed Jenna in January 2001. Initially, while Jenna's mother and cousin were present, Jenna denied that she performed oral sex on defendant. However, once Jenna's mother and cousin left the room at Glessner's request, Jenna told Glessner that she indeed had performed oral sex on defendant. Jenna explained that, around 9 p.m. one evening, defendant was driving her and Travis home on a gravel road when he pulled alongside a corn crib that was near what Jenna described as a "pile of junk." Defendant threatened to leave Jenna at the corn crib if she did not give him oral sex. Glessner testified that, though he was unable to arrange for Jenna to show him the exact location, he followed the route that Jenna described in the interview and came across a silo standing near a dilapidated building located about a half-mile from defendant's trailer. Glessner photographed the silo and showed the photograph to Jenna. Jenna identified the photographed area as the location where she gave defendant oral sex. Glessner acknowledged on cross-examination that there are probably a hundred silos in Lee County like the one he photographed.
Glessner also admitted on cross-examination that he never located Rico or even learned Rico's last name. Glessner testified that, though Glover had identified Rico as one of the individuals in the photographs, he did not attempt to interview Rico because defendant told Glessner during their interview in the fall of 2000 that Travis was the only male in the photographs. Glessner acknowledged that, during a second interview in July 2001, defendant "alerted" Glessner to the "possible involvement" of Rico, but Glessner did not believe defendant and therefore did not pursue Rico.
Charlene testified that she was born on July 14, 1984. Charlene testified that State's exhibits 1 and 3 were taken on May 10, 2000. That night, defendant, Travis, Trina (Travis's sister), Jenna, and another girl picked up Charlene at her house after her mother left for work. Charlene admitted that she did not want her mother to know she was leaving the house. Charlene testified that the six of them drove to a field near defendant's trailer. After they remained there for a time, defendant drove all of them home except for Travis and Charlene, who both accompanied defendant to his trailer, arriving about 1 a.m. There, they watched a pornographic videotape on defendant's videocassette recorder (VCR) in the living room of the trailer while Penner was asleep in the bedroom. Charlene and Travis became excited during the movie and went to Penner's son Kyle's bedroom where Charlene performed oral sex on Travis. As this was occurring, Charlene saw flashes of light, which she initially regarded as lightning because it was storming outside. Charlene then saw defendant standing in the doorway of the bedroom with a disposable camera and concluded that defendant had taken pictures of her and Travis. Charlene testified that defendant took three or four photographs of her and Travis but did not take a close-up photograph of them. Charlene identified State's exhibit 1 as a photograph of her performing oral sex on Travis.
Charlene testified that, after defendant took the photographs of her and Travis, the three of them returned to the living room. Soon after, defendant demanded that Charlene give him oral sex or he would show her mother the photographs he had taken of her and Travis. Charlene initially refused, but she relented when she saw that defendant was serious because she did not want her mother to know she had been drinking alcohol at defendant's trailer. She and defendant then went to the bedroom. She sat on the edge of the bed and began performing oral sex on defendant as he stood in front of her. She saw a flash of light close to her face and observed that defendant had taken a photograph of her. Defendant said, "This is all I needed." Charlene then stopped the oral sex because she felt defendant was "trying to get [her] in more trouble." Charlene testified that State's exhibit 3 shows her performing oral sex on defendant. Charlene testified that the male in the photograph could not be Travis ...