Appeal from the Circuit Court of Boone County. No. 05--CF--289 Honorable J. Todd Kennedy, Judge, Presiding.
The opinion of the court was delivered by: Justice Schostok
JUSTICE SCHOSTOK delivered the opinion of the court: Following a jury trial, the defendant, Frank Atherton, was convicted of two counts of predatory criminal sexual assault of a child (720 ILCS 5/3--6(j), 12--14.1(a)(1) (West 2002)) and was sentenced to a total of 24 years' imprisonment. On appeal, the defendant argues that: (1) he was not convicted beyond a reasonable doubt of one of the counts of predatory criminal sexual assault; (2) the trial court failed to comply with Supreme Court Rule 431(b) (Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007) in questioning the prospective jurors during voir dire; (3) section 115--10 of the Code of Criminal Procedure of 1963 (the Code) (725 ILCS 5/115--10 (West 2002)) is unconstitutional; (4) the trial court erred in admitting evidence pertaining to the child-sexual-abuse-accommodation syndrome; (5) he was deprived of the effective assistance of counsel; (6) the trial court erred in refusing to instruct the jury with Illinois Pattern Jury Instructions, Criminal, No. 3.15 (4th ed. 2000) (hereinafter IPI Criminal 4th); (7) he was deprived of a fair trial due to the cumulative effect of the errors; and (8) the trial court erred in ordering him to pay a Crime Stoppers fine. We affirm in part and vacate in part.
On October 14, 2005, the defendant was charged by indictment with one count of predatory criminal sexual assault of a child. The indictment alleged that the defendant, who was older than 17, placed his penis in the vagina of a girl, Ariana O., who was younger than 13. The State subsequently filed a second superseding bill of indictment. The indictment added a second count, alleging that the defendant's sex organ had made contact with Ariana's anus. The indictment alleged that all of the defendant's conduct at issue had occurred between September 8, 2002, and November 30, 2002.
On January 9, 2006, the State filed a motion to admit hearsay testimony pursuant to section 115--10 of the Code. The State sought to admit statements that Ariana had made to her stepmother, Jennifer O. On May 8, 2006, the trial court conducted a hearing on the State's motion. Jennifer O. testified that she is married to Eric O. He has three children: Nick (age nine); Ariana (age eight); and Rebecca (age five). Eric shares custody with the children's mother, Juliana. On July 28, 2005, Jennifer was talking to the children and they were telling her how mean "Frank" was. Nick told her that "Frank" put his "wiener" in Ariana. After Nick said this, Ariana started crying. Jennifer asked Ariana if Nick's statement was true, and Ariana said "yes." Jennifer asked Ariana where "Frank" had touched her, and Ariana pointed between her legs. Jennifer asked whether Ariana had been wearing underwear, and Ariana said "no."
Jennifer testified that a month earlier, Ariana and Nick had asked questions about sex, so she gave them a book entitled, "It's So Amazing." The book upset Ariana and she could not sleep. Ariana said an illustration in the book depicting a man and woman in bed was "icky." According to Jennifer, Ariana told her, "There's something I need to tell you. I can't tell you." Jennifer asked Ariana if someone hurt her, but Ariana did not respond.
At the close of the hearing, the trial court ruled that the statements were admissible, as there were sufficient indicia of reliability. The trial court explained that the statements seemed to be "fairly spontaneous" and not "coached in any way."
On August 20, 2008, the defendant requested that the trial court conduct a Frye hearing as to whether the State could introduce testimony regarding the child-sexual-abuse-accommodation syndrome. The trial court denied the request.
Between October 20 and October 27, 2008, the trial court conducted a jury trial on the charges against the defendant. Ariana testified that she was 11 years old and lived with her older brother Nick, her younger sister Rebecca, and her mother, Julianna. She visited regularly with her father Eric, and his wife, Jennifer. When she was six or seven, "Frank" babysat her and her brother and sister in their apartment. She had known "Frank" for about a year, and she believed he probably babysat her in the summer because there was no school. She also remembered "Frank" as being over at her home for Christmas and later in the winter around Valentine's Day, but not around Easter. "Frank" came over every time her mother went to work at a pancake restaurant, more than 20 times. Occasionally, "Frank" brought his own children over when he babysat. Once, "Frank's" mother came over.
Ariana described "Frank" as always having his shirt off, wearing earrings, and having tattoos on his arms and on his stomach. She was not able to identify in court the defendant as "Frank."
Ariana testified that she did not like "Frank," because he was mean. "Frank" brought his kids with him when he babysat, and they messed up her room but he made her clean it up. She told her father and Jennifer that "Frank" hit Nick.
Ariana further testified that "Frank" took her into the computer room and touched her "private" with his "private." A "private" is what a boy or girl uses to urinate. She knew boys and girls had different "privates" because she bathed with her brother. In the computer room with "Frank," she pulled her pants and underwear partly off, but kept her shirt on. She lay on the blue carpeted floor on her stomach. "Frank" pulled his own pants down and did "pushups" over her. "Frank's" "private" touched her "private" on the inside and it hurt. There was no blood. When Ariana complained, Frank gave her chocolate. She identified a large chocolate bar as the type "Frank" gave her.
When initially asked if "Frank" touched her anywhere else besides her "private," Ariana replied, "No." However, when later asked if Frank's "private" touched her anywhere else while she was on her stomach, Ariana said, "It was kind of in my butt." She stated it was "inside." When asked how that felt, Ariana responded, "I didn't really feel anything." Ariana stated she poops with her butt and "[h]e didn't put it inside there. It went in there as it was like going into my private. He didn't put it in where I poop." She further stated, "He didn't put it exactly in where I poop" and she did not feel anything when he did that. She was questioned, "You said [Frank's private] didn't go inside that part, but did it touch that part at all?" Ariana answered, "Yeah."
On cross-examination, Ariana testified that she could not specifically recall when Frank's touching of her occurred, but she thought it probably happened when she was seven and in the summer. She could not remember what happened afterward or exactly when it would start. Ariana thought it might have lasted for 10 minutes, but she was not certain. She testified that it happened every time Frank came over, and always in the same place and in the same manner. She stated that it happened around Christmas, and in late winter around Valentine's Day, as well as in summer. She did not know where her brother and sister were when it took place. She testified that "it was a really long time ago and [she] barely remember[ed] anything."
Ariana additionally testified that she did not tell her mother about what happened. She told her mother only that she did not like "Frank." "Frank" did not tell her not to tell anyone. Ariana told Nick about what had occurred, probably when she was seven. Nick told Jennifer and she got him a book about the birds and bees from the library so he could understand what happened. Ariana read the book and a picture of a guy and a girl in bed scared her. She was worried she was going to have a baby until she realized that it had been past five months. Jennifer told her that she had to talk about what had happened.
Ariana stated that she remembered talking with a woman who sat on the floor in a room with cameras. She did not know that the woman's name was Jackie Weber. She told Weber that "Frank" never wore a shirt, even in the winter. She did not tell Weber that "Frank" had earrings. She told Weber that "Frank" hit Nick and that he did not care about his kids. She initially stated that she never saw "Frank" hit Nick or her younger sister. However, she later testified that "Frank" hit Rebecca and that Rebecca had bruises at least twice. Ariana testified that she had not seen "Frank" since 2002.
Ariana also testified that her aunt moved in and took over baby-sitting duties from "Frank." Her aunt's boyfriend, Jason, also moved in. After Jason moved out, Carl moved in. Carl would baby-sit her occasionally. She also spent some time with the man who lived below her apartment, Lorenzo. She testified that Jason, Carl, and Lorenzo did not touch her the way that Frank had.
Nurse practitioner Patricia Brandon testified that she examined Ariana on August 7, 2005. Ariana had a healed injury to her hymen consistent with penetration by a penis. Ariana had no injury to her anus.
Julianna Lubus testified that she was Ariana's mother. She broke up with Ariana's father, Eric O., in late 2001 or early 2002. She was involved in custody, visitation, and child support disputes with Eric from 2002 until 2005. After she broke up with Eric, she began dating Jerome Matuszak until around Ariana's fifth birthday in September 2002. Matuszak never lived with her.
Julianna testified that the defendant babysat her children from late September 2002 until late November 2002. Juliana worked at Grandma's Restaurant and then at Bacchus Nibbles. She worked the late shift from 5 p.m. until 2 a.m. Juliana did not pay the defendant, but instead she would sometimes watch his children while he worked. She denied that there was anything other than a working relationship between her and the defendant. She acknowledged that the defendant wanted to marry her.
Julianna identified the defendant in court. He looked different at trial than when he babysat. He weighed more and had more facial hair. When he was baby-sitting, the defendant either was clean-shaven or just had a mustache. The defendant's hair was also different at trial from the buzz-cut he had while baby-sitting. When she first met the defendant, he had a mullet and a goatee and tattoos on his arms, hands, and chest.
The defendant stopped baby-sitting Julianna's children in 2002 after the Department of Children and Family Services (DCFS) investigated allegations he physically abused her children. Julianna never saw any bruising on Rebecca she felt was consistent with being beaten. After the allegations, Julianna questioned the children only about whether the defendant hit them. She testified that she noticed changes in the children during that time. After the defendant stopped watching the children, Julianna's sister moved in and her sister's boyfriend, Jason Sturges, began spending a lot of time at the apartment.
Jennifer O. testified consistently with her testimony at the section 115--10 hearing.
Ann Young testified that she is a child welfare supervisor working for Lutheran Social Services, a private agency that deals with abused and neglected families. Young testified regarding child-sexual-abuse-accommodation syndrome (the syndrome). The syndrome is actually a pattern of five behavioral characteristics often observed in children who have been sexually abused. The characteristics are secrecy, helplessness, entrapment or accommodation, delayed or unconvincing disclosure, and retraction. Young stated that secrecy means the child keeps the abuse a secret and that it can be the result of an explicit or implied threat. Helplessness refers to an imbalance of power between the child and the authority figure who is abusing. Entrapment or accommodation means the child feels trapped by the abuse and learns ways to deal with it. Disclosure is usually delayed and given only in increments. The eventual disclosure may conflict with what actually happened due to the child's inability to recall detail. Retraction often happens after a child discloses and feels guilt, fear, or shame. Young acknowledged that some studies had called the syndrome into question; however, she believed it was generally accepted.
Young further testified that there did not need to be a trusting relationship between the child and the abuser for the syndrome to apply. The degree of the relationship between the abuser and the child's parent could affect when disclosure is made. Young stated that a babysitter-child relationship is consistent with cases where the syndrome appears.
Young additionally testified that Ariana's assertions that she was alone with the abuser and was afraid of him were consistent with the secrecy component of the syndrome. Young stated that if Ariana told her mother that the offender was mean, that would fall into the helplessness portion of the syndrome. The allegation that the acts happened more than once was consistent with the entrapment element of the syndrome. Ariana's delayed disclosure was also consistent with the syndrome. Young explained that the syndrome still applied even though Ariana did not make the disclosure herself, because the triggering event of the delayed disclosure could be accidental, spontaneous, or not related to anything. Young further stated that, pursuant to the syndrome, children have an inconsistent chronology of events because children have underdeveloped concepts of time and a limited ability to recall detail.
In explaining the syndrome's characteristic of intimidation, Young acknowledged that the psychiatrist who first set forth the syndrome in an article, Dr. Summit, did not mention examples of nonverbal intimidation. However, Young believed a bribe could be considered intimidation. Young further acknowledged that Dr. Summit's article did not discuss implied secrecy and gave examples only of explicit requests or demands. She believed other research studies had indicated that implied secrecy was good enough to meet the requirements for the syndrome. She had also learned of implied secrecy through her personal work with children.
Young further acknowledged that, in his article, Dr. Summit indicated that it had become a maxim among child sex abuse intervention counselors and investigators that children never fabricate the type of explicit sexual manipulation they divulge in complaints and interrogations. Thus, it is the belief of those in such advocacy positions that children never lie about these matters.
At the close of the State's case, the defendant moved for a directed verdict. Following the denial of that motion, the defendant presented the testimony of Dorothy Knipprath, Dr. Robert Meyer, and himself.
Dorothy Knipprath testified that she was the defendant's mother. She testified that once when she was visiting the defendant at Julianna's apartment, the defendant was doing pushups with his sons on his back when Ariana slid underneath him. The defendant fell on Ariana and Ariana said that she was hurt; however, nothing was broken. Knipprath believed the defendant and Julianna were dating, as she once was awakened by the defendant and Julianna having sexual relations.
Dr. Robert Meyer testified that he is a licensed clinical psychologist and an assistant professor at Northern Illinois University. He is familiar with the syndrome. He indicated that Dr. Summit, who originally proposed the syndrome, worked primarily with incestuous families. According to Dr. Meyer, Dr. Summit wrote a subsequent article in which he indicated the syndrome was not really a syndrome; rather, it was his opinion regarding children of incest who live in very rigid family systems with a lot of controlling behavior and the need for secrecy. In 1992, Dr. Summit wrote that the term "syndrome" is misleading; he explained that the syndrome he had written about was not a clinically diagnostic instrument and should not be used to determine whether a child had been sexually abused or to suggest a child is lying. Dr. Meyer testified Dr. Summit wrote that he intended the syndrome to be a guide in helping with treatment and that he never foresaw it being used in a court of law as a means of obtaining convictions. Dr Meyer stated that the syndrome is an opinion and was not developed based on scientific research, validity studies, or reliability studies.
According to Dr. Meyer, there were several flaws discovered in the syndrome theory. The syndrome was used in the wrong situations, given that it was developed for intact, incestuous, rigid families where the perpetrator was either a father or a stepfather who lived within the family and continued to exert control over it. Further, the syndrome was inappropriately used where the perpetrator was not even a part of the family and there was no reason to believe the child would have any reason to accommodate because there was no control being exerted on the child. Dr. Meyer also testified that some people went so far as to opine that if a child did not demonstrate the syndrome, he or she was not telling the truth.
Dr. Meyer testified that the only characteristic of the syndrome that further research could validate was secrecy. That being, if children are left on their own and not questioned, they often delay reporting longer. Dr. Meyer testified the ideas of denial and recantation of testimony provide nothing in the way of reliable or valid information to the trier of fact in determining whether abuse actually occurred. He stated literature now suggests that abused children who disclose generally provide full disclosure and that only a small minority recant. He further stated that when a child is abused, generally her memory about what happened does not diminish, because it is a very traumatic event that is difficult to put out of the mind.
The defendant testified that he met Julianna in the summer of 2002 after she moved into his building. They developed a deep relationship that began while Julianna's children were staying with their father. During that time, he began watching Julianna's children. His own children were living with their mother, but when they visited him, Julianna let them stay in her apartment because she had extra beds. Julianna watched his children twice.
On one occasion near the first of October, while his mother and sons were visiting, the defendant played "dog pile," exercising and playing, with the children. Julianna was present and Ariana was hurt in the play.
The defendant testified that he punished the children by making them stand in a corner. The children cried and threatened to tell their parents. He never called Ariana into the computer room by herself. He never took his shirt off around Ariana. He did remove his ...