Appeal from the Circuit Court of Lake County. No. 00-CF-3965. Honorable Victoria A. Rossetti, Judge, Presiding.
The opinion of the court was delivered by: Justice McLAREN
Following a jury trial, defendant, Robbie L. Bishop, was convicted of four counts of criminal sexual assault (720 ILCS 5/12--13(a)(1), (a)(3) (West 2002)) and four counts of aggravated criminal sexual assault (720 ILCS 5/12--14(a)(2) (West 2002)). Defendant was sentenced to 30-year concurrent terms for the counts of aggravated criminal sexual assault and 15-year concurrent terms for the counts of criminal sexual assault. On appeal, defendant contends that (1) the trial court erred by denying his motion to suppress evidence obtained from his bedroom; (2) he was denied a fair trial due to various prosecutorial comments and improper testimony; (3) counts II and VI omitted an essential element of the offense; (4) the indictment did not apprise him that the State intended to treat his conduct as multiple acts; (5) four of his convictions of criminal sexual assault should be vacated as lesser included offenses of aggravated criminal sexual assault; (6) six of his convictions violate the one-act, one-crime rule because they were based on the same physical act; and (7) he must have a new sentencing hearing because the trial court erroneously imposed concurrent rather than consecutive sentences. We affirm in part, vacate in part, and remand with directions.
In an eight-count indictment, defendant was charged with four counts of aggravated criminal sexual assault and four counts of criminal sexual assault, all against his daughter, Q.B. Four counts alleged penile penetrations to Q.B.'s vagina between September 5, 1998, and December 5, 2000. Three counts alleged penile penetrations to Q.B.'s anus between September 1, 2000, and December 5, 2000, and one count alleged penile penetration to Q.B.'s anus between September 5, 1998, and December 5, 2000. Count I alleged that defendant caused bodily harm to Q.B. by placing his penis in her vagina by the threat of force and causing her to become pregnant (aggravated criminal sexual assault). Count II alleged that defendant, a family member of Q.B., caused her bodily harm by placing his penis in her vagina and causing her to become pregnant (aggravated criminal sexual assault). Count III alleged that defendant placed his penis in the vagina of Q.B. by the threat of force (criminal sexual assault). Count IV alleged that defendant, a family member of Q.B., placed his penis in her vagina when she was under the age of 18 (criminal sexual assault). Count V alleged that defendant caused bodily harm to Q.B.'s anus by placing his penis in her anus by the threat of force (aggravated criminal sexual assault). Count VI alleged that defendant, a family member of Q.B., caused bodily harm to her anus by placing his penis in her anus (aggravated criminal sexual assault). Count VII alleged that defendant placed his penis in the anus of Q.B. by the threat of force (criminal sexual assault). Count VIII alleged that defendant, a family member of Q.B., placed his penis in her anus when she was under the age of 18 (criminal sexual assault).
On August 21, 2001, defendant filed a motion to suppress evidence obtained from his bedroom. At an evidentiary hearing, Waukegan police detectives Anthony Joseph, Fernando Villafuerte, and Brian Mullen offered consistent testimony regarding events on December 5, 2000. On that day, Q.B., age 15, told the detectives that defendant was sexually abusing her. She informed them that she lived with her sister and defendant and that defendant had gained custody of her when she was nine. Q.B. further informed the detectives that she had been assaulted by defendant in his bedroom the night before. According to Q.B., defendant had used a condom. She told the detectives that they would find the soiled condom in a trash can in his bedroom. She also indicated that they would find on a safe next to the bed a jar of Vaseline that defendant had used for lubrication. In addition, they would find in one of his dresser drawers birth control pills that he was making her take.
Q.B. accompanied the detectives to the residence that night and informed them that defendant was at work. She opened the door with her keys and they followed her inside. After tending to her puppy, Q.B. walked upstairs and pointed to a bedroom with an open door, indicating that it was defendant's bedroom. Q.B. did not indicate that the bedroom door was ever locked or that she was not allowed to go into the room. The detectives did not ask Q.B. if she had permission to go into the bedroom and did not seek defendant's consent to search the room. The trash can was visible from the hall. The detectives followed Q.B. into the bedroom and observed a soiled condom and a condom wrapper in the trash can. In addition, a jar of Vaseline was on top of a safe directly next to defendant's bed. The officers also recovered birth control pills in an opaque bag from a dresser drawer that Q.B. instructed them to open. No other part of the bedroom or residence was searched. An evidence technician arrived 20 to 30 minutes later to photograph and collect the evidence.
Q.B. testified that she shared one bedroom with her sister and that the other bedroom was defendant's. Q.B. had keys to the residence because defendant was usually at work when she returned from school. Q.B. was responsible for looking after her sister when defendant was at work. Defendant never kept his bedroom door locked or closed, and it was open when Q.B. was alone in the house after school. Defendant never told Q.B. that she could not go into his bedroom or that no one else was allowed in the room. The only time defendant's door was closed was when he was in the bedroom with one of his "friends." Defendant possessed a "Do not enter" sign and Q.B. knew that he did not want "strangers" in the room. Q.B. was allowed to go in and out of his bedroom when the door was open.
Defendant testified that he was renting the house and had lived there with his two daughters for about a year and a half. Defendant generally worked from 3 a.m. to 2:30 p.m. According to defendant, he kept the door closed the majority of the time when he was not at home. He had a sign that said "Do not enter without knocking," but there was no key to lock the door from the outside. Q.B. was often in his room watching videos or sleeping. In early December 2000, defendant brought a woman home and found Q.B. in his bed. He told her to leave his room.
The trial court denied defendant's motion to suppress, concluding that Q.B. had common authority of the house and of the rooms in the house. In the court's view, Q.B. had authority to walk into the bedroom "for whatever purpose," although defendant did not want her "hanging out in his room watching TV" because he may bring home "company." The court also found that Q.B. had apparent authority to consent to the search of defendant's bedroom. According to the court, it was reasonable for the detectives to believe that she had authority to be in the bedroom since the door was open and there was no sign indicating "Do not enter."
The case proceeded to trial on February 19, 2002. Prior to jury selection, defendant filed a motion to reconsider the denial of the motion to suppress. The trial court denied the motion, concluding that Q.B. possessed common authority over the bedroom and that defendant's testimony that she lacked permission was not credible.
Terri DeWees, an emergency room nurse with training in sexual assault examinations, testified on behalf of the State. DeWees worked at St. Therese Hospital in December 2000. On the evening of December 5, 2000, DeWees examined Q.B. Q.B. informed DeWees that defendant had put his "thing" in her "bottom." Q.B. further stated that these incidents had been occurring "most every night" and had started when she was nine years old. When DeWees touched Q.B., she observed some pain or tenderness of the upper buttocks near the tailbone that could be consistent with paddling or some type of penetration. There were no signs of vaginal injury. Upon examining Q.B.'s anus or rectal area, however, DeWees discovered two injuries. At the bottom of her anus, in the six o'clock position, there was a two-millimeter abrasion. In addition, there was some apparent scar tissue at the three o'clock position. DeWees explained that when a body suffers injury, scars or thickening of the tissue will form as a part of the healing process.
Q.B., age 16 at the time of trial, testified that she was either 10 or 12 when she and her sister began living with defendant. Although some touching had occurred before she moved in with him, she had denied any sexual abuse to a worker at the Department of Children and Family Services (DCFS) on several occasions. Q.B. did not report any abuse because she wanted defendant back in her life. Although defendant was strict with Q.B. and her sister, she felt safe and loved, and he maintained a nice home for them.
When Q.B. was 12, defendant started having her lie down in his bed with him. Sometimes she would have her clothes on, other times she would not. With his hand, defendant would touch her breasts, buttocks, and private area, but never inside her private part. He would also put his penis between her legs and rub it against her vagina. Sometimes she would face him and other times she would face away. These incidents always occurred in defendant's bedroom. Defendant would call her into his room and say "I want to do something" or tell her to remove her clothes. If Q.B. refused, defendant would threaten to hurt her. Defendant would sometimes use a condom. In addition, he would put Vaseline on her vagina and on his penis. When Q.B. was between the ages of 12 and 14, defendant called her into his bedroom two or three times a week.
When Q.B. was 14, during the month of July, defendant told Q.B. that she looked pregnant. On a subsequent night, Q.B. doubled over in pain. A pregnancy test that defendant purchased was positive. The next day, Q.B. went to the Lake County Health Department. Q.B. signed in under the name of "Jasmine Smith" because defendant told her not to use her real name. The Health Department confirmed that Q.B. was pregnant. Less than a week later, Q.B. made an appointment to get an abortion. Until the pregnancy, defendant was having sexual contact with Q.B. about three times a week. After learning of the pregnancy, defendant did not have sexual contact with her until a couple of weeks after the abortion.
Following the abortion, defendant put his "private part" in her "behind" instead of between her legs. This caused Q.B. to cry. In addition, defendant would rub her breasts and vagina and then have her put Vaseline on his "private part." Defendant would lie on his back, tell Q.B. to "sit on it," and move her waist up and down. Defendant would ejaculate during the encounters, sometimes into a condom. Afterwards, Q.B. would shower and defendant would sit with her on a couch and tell her that he was sorry and that he would never do it again. At times, he would cry and say he needed help. Q.B. did not tell anyone about these incidents until December 2000, despite being questioned by her paternal grandmother and aunt. On December 4, 2000, Q.B. got in trouble for not telling defendant that her girlfriend was walking her to school. Her girlfriend waited outside the door and never came inside the house. Defendant "whooped" Q.B. on the buttocks with a thick wooden paddle more than 20 times. The paddling made her cry. After defendant had sexual contact with her the night of the paddling, Q.B. decided that she was tired of his conduct and of his promises. As a result, she wrote a letter to her gym teacher.
Kelly Gannon, a forensic biologist at the Northern Illinois Police Crime Laboratory, testified that she received a condom and other items for analysis. She identified sperm cells in and on the condom.
Detective Mullen testified regarding the search of the residence on December 5, 2000. According to Detective Mullen, Q.B. was sent to the hospital and then interviewed at the police department. During the interview, Q.B. informed the detectives that the most recent assault had occurred in defendant's bedroom the night before. According to Q.B., the detectives would find a condom, a jar of Vaseline, and some birth control pills in defendant's bedroom. All of the items were recovered. Q.B. indicated to Detective Mullen that defendant had sexual contact with her approximately 20 times.
The State's final witness was Peter Yallaly, a forensic scientist for the Northern Illinois Police Crime Laboratory. Yallaly compared samples of the condom itself and samples of the substance in the condom to a blood sample from Q.B. and a saliva sample from defendant. Of the four samples, one of the two from the condom surface contained DNA from two different people. Yallaly opined that the profile from the condom matched the profile from defendant's saliva. Yallaly further opined that the "minor contributor" to the DNA on the condom was consistent with the blood standard received from Q.B. and that she could not be excluded as the source. However, due to the limited amount of DNA on the sample tested, he was unable to say whether the minor contributor was male or female.
The sole witness for the defense was defendant. He denied ever placing his penis in Q.B.'s vagina or anus or touching her breasts or vagina. Defendant stated that, on December 4, 2000, he masturbated to the point of ejaculation while watching an adult video. He wore a condom and placed it in the trash can in his bedroom afterward. Defendant kept a jar of Vaseline in his room to provide a shine after he shaved his head and also for sexual intercourse with female visitors. Birth control pills that Q.B. had been given at the abortion clinic were kept in his dresser.
On the morning of December 4, one of Q.B.'s friends came to the house and was introduced to defendant. Q.B. denied that her friend had been in the house before, although Q.B.'s sister informed defendant that this was not true. Q.B. then admitted that the girl had previously been in the house and defendant struck her on the buttocks with the paddle more than 20 times. Defendant told Q.B. that he was going to "whoop" her all week because she treated his rules as though they did not matter. The next day, defendant's mother called him on his way home from work because the police were looking for him. After driving to the house and finding no one there, he drove to the police station, where he was arrested.
The jury found defendant guilty on all counts. Defense counsel filed a motion for a new trial, which was subsequently denied. The trial court imposed concurrent sentences of 30 years for the four counts of aggravated criminal sexual assault and 15 years for the four counts of criminal sexual assault. Defendant's motion to reconsider the sentences was denied. Defendant's timely notice of appeal followed.
Defendant's first argument on appeal is that the trial court erred by denying defendant's motion to suppress. Essentially, defendant challenges the scope of Q.B.'s authority. Defendant does not contend that Q.B. lacked authority to consent to a search of the common areas of the residence; rather, he contends that Q.B.'s authority did not extend to his bedroom. Because defendant did not want Q.B. "hanging out" in his room, he asserts that Q.B.'s access to the room was inferior to his. Additionally, Q.B. was aware that defendant did not want "strangers" in the room. As a result, he argues that she lacked common authority to allow the detectives to enter or search his bedroom. The State counters that the family relationship between defendant ...