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People v. Robert P.

January 6, 2005

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
ROBERT P., DEFENDANT-APPELLANT.



Appeal from the Circuit Court of the 10th Judicial Circuit Putnam County, Illinois No. 02--CF-14, Honorable Stuart P. Borden, Judge, Presiding.

The opinion of the court was delivered by: Justice Schmidt

PUBLISHED

The defendant was convicted in Putnam County circuit court of aggravated criminal sexual assault, predatory criminal sexual assault of a child and aggravated criminal sexual abuse. He was sentenced to 15 years for each of the assault charges, to run consecutively, and a concurrent 6-year term for the abuse charge. He alleges a number of evidentiary errors and asserts he was denied a fair trial.

BACKGROUND

The victim, A.P. (born on September 23, 1991), is the adopted child of the defendant and his wife. Prior to being adopted by the P.'s in April of 1999, A.P. resided with the F.'s for approximately one year. William F. is Mrs. P.'s brother. On March 11, 2002, A.P. reported to her special education teacher, Ms. May, that she had been touched inappropriately by the defendant. On March 12, 2002, she was interviewed by sheriff's deputy John Ellena and Department of Children and Family Services (DCFS) investigator Judy O'Brien. During the interview, A.P. described a long-standing course and pattern of abuse beginning shortly after she was adopted by defendant. O'Brien filed a report with the State indicating that there was credible evidence to support A.P.'s allegations of sexual abuse.

On March 18, 2002, A.P. was interviewed by Kari Koster, the director of Henry County Children's Advocacy Center. In the videotaped interview, Koster posed open-ended questions to A.P. about the abuse. In response, A.P. gave detailed answers describing the abuse to which she had been subjected, including times, dates and details concerning specific incidents of abuse. A.P. also exhibited sexual knowledge that Koster considered advanced for a 10-year old child. This videotaped interview was played to the jury during Koster's trial testimony despite defendant's objection.

O'Brien and Koster were witnesses at trial and questioned regarding their qualifications. Koster testified that she worked as a "forensic interviewer" who interviewed children to discover the existence of sexual abuse. She stated she had attended several conferences and training classes related to interviewing abused children and that she had interviewed over 300 abused children as a forensic interviewer. O'Brien testified that she had worked for DCFS for 10 years and had interviewed over 1,000 children.

Koster was asked to describe her interviewing technique. She responded that she attempted to elicit from the child a stream- of-consciousness narrative describing the abuse without the use of specific cues or questions. Koster was allowed to comment on whether, in her opinion, A.P.'s accusations were credible. Koster believed they were. O'Brien was also allowed to testify whether she believed A.P. to be credible. She did.

On March 13, March 26, and April 30 of 2002, A.P. was examined by Nancy Auer. Ms. Auer is a nurse at the Pediatric Resource Center. During the initial examination, the nurse noted an abrasion on A.P.'s hymen. Ms. Auer testified this was consistent with sexual abuse. In the second examination, Ms. Auer noted that the abrasion appeared to be healing. In the third examination, Ms. Auer observed continued healing of the abrasion and also observed several blisters that had erupted in A.P.'s clitoral area and on her labia majora. A culture from the blisters indicated the presence of the herpes II virus, commonly referred to as genital herpes.

A.P.'s medical history indicated that in July of 2000, she was examined by physician assistant Robert Girard, who diagnosed her with herpes and noted that she was suffering from her "primary outbreak." Girard testified that his examination of A.P. revealed that she exhibited symptoms of genital herpes, and therefore, he referred her to Dr. Sean Bailey to perform a blood test. The blood test confirmed the existence of the herpes virus.

Physician assistant Girard further testified that approximately one year prior to diagnosing A.P. with genital herpes, he diagnosed the defendant with genital herpes. Girard ordered no viral test on the defendant but prescribed an antiviral medication. The defendant's herpes infection was confirmed on April 17, 2000, when he was examined by Dr. Constantino Perales. Blood tests performed by Perales confirmed the presence of both the herpes I and herpes II viruses.

Dr. Sean Bailey testified on behalf of defendant. Dr. Bailey testified that he saw A.P. as a patient on August 2, 2000. The purpose of her visit revolved around some lesions in her genital area. Cultures taken from the lesions came back positive for herpes. Dr. Bailey noted that he "talked with [A.P.] in the presence of her mother, defendant's wife, and asked her if she'd ever been touched or had anybody done anything with her in her genital area," and "she said no."

Defense counsel then asked Dr. Bailey if herpes can be transmitted non-sexually. Dr. Bailey stated, "There's some speculation that it can. You can get it through kissing of course, and you can - there's some speculation that you can get it through autoinoculation." He continued on direct examination to note that he had "never seen a case" of autoinoculation but, in his opinion, it theoretically could happen. On cross-examination, Dr. Bailey stated that he had never seen any proven case studies noting herpes could be transmitted by autoinoculation. When discussing his failure to report the fact that an eight-year-old patient of his had genital herpes, a sexually transmitted disease, to DCFS, Dr. Bailey stated that in hindsight, "Yeah, I would have reported to DCFS."

A.P. testified that she lived with the P.'s for three to four years. She used to go shopping with her mother and, at times, watch television with the defendant. She stated that the defendant touched parts of her body that he "wasn't supposed to." After claiming that these parts included her "front private," she identified her genital area on a chart as the area which defendant inappropriately touched.

She testified that he touched this area both with his hand and his penis. He would start with his hand while she was either sitting or lying down. The touching took place inside her clothes. The first time the touching took place was within a few weeks after she moved in with the P.'s.

She stated that the defendant told her not to tell anyone about these encounters. When they were over, defendant would go into the bathroom, get cleaned up and tell A.P. to do the same. At times, A.P. would have to wash off a "clear liquid." The defendant would, at times, use Vaseline on himself and A.P.

On cross-examination, A.P. stated that these encounters happened "almost" every day. A.P. stated that on March 11, 2002, she told her special education teacher about the touching. On that day, she mentioned that the last encounter took place on March 10, 2002.

A.P. admitted during her testimony that she lied to her special education teacher on March 11, 2002, when she told the teacher that the defendant inappropriately touched her on March 10, 2002. A.P. also admitted to telling therapist Diane Funk, in 1999, that no one had inappropriately touched her. At trial, A.P. stated that the last time the defendant inappropriately touched her was August of 2001.

The defendant presented several witnesses in an attempt to impeach A.P.'s credibility and bolster his own. Therapist Diane Funk had seen A.P. on two occasions in 1999. Funk testified that A.P.'s mother (defendant's wife) took A.P. to Funk for issues related to lying and masturbating. At the initial appointment, Funk asked A.P. whether she had been touched inappropriately and A.P. responded that she had not.

The defendant also called Gene Randolph as a witness. Randolph was the Putnam County school psychologist. He testified that A.P. had a reputation for lying and that he would not believe her, even if she testified under oath. The defendant's brother-in-law, William F., also testified. He stated that he had been A.P.'s adoptive father prior to the defendant and stated that A.P. had a reputation for lying. Furthermore, Patrick Lewis, a friend of the defendant's, also testified that A.P. had a reputation for lying.

The defendant testified on his own behalf. He stated that on March 11, 2002, A.P. was upset with him and his wife because they would not allow her to see J.I., a 15-year-old boy. He testified that he and his wife had previously disciplined A.P. for seeing this boy. He denied sexually abusing A.P., but admitted that he had herpes. He stated that he had noticed A.P. had cold sores, which are a form of herpes.

The defendant's wife testified that A.P. had never told her that the defendant was abusive. Furthermore, she had never seen the defendant act inappropriately. The defendant's wife confirmed that on March 11, 2002, she had an argument with A.P. regarding a 15-year-old boy. A.P. was upset about not being able to see J.I., and the defendant's wife was upset about A.P. stealing and lying. A.P. allegedly told the wife during this argument that the wife "would pay" for not allowing A.P. to see J.I.

Prior to trial, the court ruled on a number of motions in limine. One of these included the State's motion to bar the defendant from presenting testimony from his wife and various houseguests suggesting that the defendant did not have the opportunity to commit the crimes for which he was accused. The purpose of this testimony was to show that there were houseguests in the defendant's small house on nights when the abuse allegedly occurred and the defendant would not have had the opportunity to commit the abuse in such a small, full house. The court granted the State's motion, finding that the evidence regarding the houseguests was of "extremely limited" probative value.

The State filed a motion to bar testimony that A.P. had previously alleged that J.I. kissed her and asked her for oral sex. The court granted this motion and barred the evidence pursuant to the Illinois rape shield statute (725 ILCS 5/115--7 (West 2002)).

The State also filed a motion to bar evidence related to A.P.'s mental health treatment. Specifically, the State sought to bar evidence that A.P. told Girard that she had sought treatment for a lying problem in the past and that she often lied without knowing why. This motion also sought to prohibit the defendant's wife from testifying that she took A.P. for mental health treatment because of A.P.'s lying and masturbation. The court granted the State's motion and barred the evidence pursuant to a provision of the Mental Health and Developmental Disabilities Confidentiality Act (740 ILCS 110/10(a) (West 2002)).

Finally, the State filed a motion to bar evidence that A.P. falsely accused the defendant of biting her. The court found such evidence not probative and granted the State's motion.

In his appeal, the defendant argues that the evidentiary rulings made below denied him a fair trial by preventing him from fully testing the State's case and presenting his defense. He further alleges that it was error for the court to allow the opinion testimony of Koster and O'Brien and to allow the entry of prior consistent statements of A.P.

ANALYSIS

The gravamen of defendant's appeal is that the trial court's rulings, when taken as a whole, deprived him of the opportunity to put on a viable defense. Specifically, defendant makes the following claims:

1. The trial court erred when it prohibited defendant's wife from testifying as to the number of people who lived or ...


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