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People v. Garner

March 24, 2004

[5] THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JOHNNY GARNER, DEFENDANT-APPELLANT.



[6] Appeal from the Circuit Court of Cook County Honorable Diane Cannon, Judge Presiding.

[7] The opinion of the court was delivered by: Justice Karnezis

[8]  Following a bench trial, defendant Johnny Garner was convicted of aggravated criminal sexual abuse (720 ILCS 5/12-16(d) (West 2002)) and was sentenced to five years' imprisonment. On appeal, defendant contends he received ineffective assistance of trial counsel and the trial court failed to admonish him in accordance with Supreme Court Rule 605(a) (Official Reports Advance Sheet No. 21 (October 17, 2001), R. 605(a), eff. October 1, 2001). We affirm.

[9]  BACKGROUND

[10]   Defendant was charged with aggravated criminal sexual abuse for having sexual encounters with S.P., who was 13 years old at the time of the first encounter in September 2001 and 14 years old at the time of the last encounter. Defendant admitted having sexual encounters with S.P., but asserted, in his defense, that he reasonably believed S.P. was 17 years of age or older. 720 ILCS 5/12-17(b) (West 2002).

[11]   S.P. testified that she was born September 21, 1987, and that in September 2001, she attended Hope Elementary School. She knew defendant because he was a friend of her uncle who lived with her family. Defendant would visit their home almost every day. On one particular visit in August 2001, defendant asked S.P. how old she was. S.P. told him she was 15 years old and a freshman at Collins high school, although she was really 13 years old. Defendant told her that when school started she should give him a call.

[12]   In early September 2001, S.P. called defendant and they arranged to meet the next day at the park across from S.P.'s school at 8:30 a.m. Defendant met S.P. at the park and picked her up in his car. He drove her to a soccer field and then to a motel where he registered and obtained a key. Inside the room, defendant told S.P. to undress but she refused. Defendant then undressed her. He touched her breasts with his hands and his mouth. He also touched her vagina and put his penis in her vagina. After they had sex defendant drove her back to the park.

[13]   S.P. saw defendant again about a week later when she was walking to the store. Defendant told her to meet him at the park the following morning. The next morning defendant drove her to the same soccer field but drove S.P. back to the park and told her to wait for him there after he received a telephone call from his mother. Defendant told S.P. that he did not want his mother to see her in the car with him.

[14]   When defendant returned about 30 minutes later, he drove S.P. to the same motel. In the motel room, defendant placed his mouth and hands on her breasts and touched her vagina. He also put his penis in her vagina. He then took her back to the park.

[15]   On September 21, S.P.'s fourteenth birthday, S.P. saw defendant while walking down the street. Defendant asked her if she was going to her cousin's party the following evening. S.P. told defendant that kids were not allowed at the party and that she was going to her aunt's house instead.

[16]   S.P. called defendant from her aunt's house the following evening. They agreed to meet at the corner store. S.P. walked to the store with her sister and cousin. Defendant drove S.P. to the same motel and got a room. They had vaginal and anal sex. Afterwards, defendant noticed several messages on his cellular phone from S.P.'s uncle and one from S.P.'s cousin. Defendant drove S.P. back to her aunt's house without returning the motel key. Defendant told S.P. that if anyone were to ask her where he was, she was to say that she did not know. Defendant dropped her off several blocks from her aunt's house. S.P. went home with her grandmother, her aunt and her sister.

[17]   The police came after they arrived home because S.P.'s uncle had reported her missing. S.P. then told the police, her grandmother and her aunt that she had been with defendant at a motel and that they had sex. After S.P. identified the motel, she was taken to Mt. Sinai Hospital, where doctors found vaginal and anal tears consistent with penetration.

[18]   Defendant testified that he first met S.P. in the park in the summer of 2001. She would walk up to him while he was playing ball and "talk and flirt." Defendant stated that S.P. called him during the summer of 2001 and asked him to meet her. He did not know how she obtained his telephone number. When they met, S.P. told him that she was a senior at Collins high school and that she was 18 years of age. Defendant testified that S.P. was wearing jeans, a shirt, rings, makeup and that her hair was "done." Defendant did not suspect, based on S.P.'s appearance, voice or demeanor that she was under the age of 18.

[19]   S.P. initiated contact again about two weeks later and again two weeks after that. She suggested that they get together. Both times defendant picked her up across the street from Collins high school. S.P. wore "tight top[s]", makeup, rings and earrings. Both times they went to a motel and had sex. Defendant had no reason to believe S.P. was not 18 years old.

[20]   S.P. called defendant on September 21 and told defendant to pick her up on the corner. They went to a motel and had sex. Afterwards S.P. asked defendant to drop her off two blocks from her house.

[21]   Defendant stated that he knew Robert Carroll, S.P.'s uncle, from the neighborhood and knew the two were related. However, he and Robert were not friends, they only played basketball together. Defendant testified that he did not have a social relationship with the Carrolls and would only visit their home when Robert called him to play ball. Defendant testified that he had been in Robert's home twice and had waited on the front porch several times.

[22]   After hearing the foregoing testimony, the trial court found defendant guilty of aggravated criminal sexual abuse and sentenced him to five years' imprisonment. It is ...


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