Appeal from the Circuit Court of Christian County. Honorable Ronald D. Spears, Judge, presiding.
The opinion of the court was delivered by: Justices: Honorable James M. Wexstten, J.
Rule 23 order filed NO. 5-09-0238 December 15, 2010;
Motion to publish granted IN THE January 11, 2011.
JUSTICE WEXSTTEN delivered the judgment of the court, with opinion. Justices Goldenhersh and Donovan concurred in the judgment and opinion.
A Christian County jury found the defendant, John L. Graham, Jr., guilty on six counts of criminal sexual assault (720 ILCS 5/12-13(a)(3) (West 2006)). On appeal, the defendant argues that the trial court erred in refusing to subpoena the victim's mental health records for an in camera inspection and in awarding the victim's grandfather restitution for traveling expenses. For the reasons that follow, we affirm.
In 1992, the defendant's first wife, Rebecca, gave birth to their only child, S.G. In 1994, the defendant and Rebecca divorced, and Rebecca and S.G. moved to Arkansas. Rebecca subsequently remarried and gave birth to S.G.'s half-sister, Lindsey, who was born a special-needs child (spina bifida). In December 2000, S.G. moved to Mattoon to live with the defendant and his second wife, Monica. Rebecca was apparently unable to "handle" both S.G. and Lindsey, and she sent the defendant a letter indicating that if he did not take custody of S.G., then she was going to give her up for adoption.
In 2004, the defendant and Monica separated, and the defendant began committing various acts of sexual penetration with S.G., who was 11 or 12 at the time. The abuse occurred frequently until March 2006, when S.G. reported it to her best friend, Elizabeth. After Elizabeth's mother spoke with S.G. about the allegations, the Department of Children and Family Services (DCFS) was contacted, and after a temporary stay at a foster home, S.G. moved back to Arkansas to live with her grandparents. The record indicates that S.G. has been in counseling ever since.
In May 2006, a Christian County grand jury indicted the defendant on multiple counts of criminal sexual assault. Thereafter, the defendant filed numerous pretrial motions, including a motion for the issuance of a subpoena for the production of S.G.'s mental health records. The defendant's motion for the issuance of a subpoena for the production of S.G.'s mental health records alleged that since 2003, S.G. had "exhibited signs indicative of mental illness." The defendant's motion further alleged that he had recently learned that she had undergone "intensive mental health treatment" and was being "medicated for a mental illness." The motion alleged that S.G.'s "mental condition and current medication" could possibly affect her "ability to accurately recollect matters at issue in this case."
At a subsequent hearing on the motion, the defendant argued that because S.G.'s mental condition could possibly "affect her testimony at trial," he was entitled to have the trial court conduct an in camera examination of her mental health records. Noting that S.G.'s mental health records were privileged, the State countered that the defendant had failed to allege any connection between S.G.'s mental health problems and her credibility as a witness. Explaining that after moving back to Arkansas, S.G. had been diagnosed as being bipolar and "suffering from a posttraumatic stress disorder" (PTSD), the State indicated that S.G.'s mental health problems were the result of the sexual abuse that she had endured while living with the defendant. Noting that there was "no allegation that she was on any medications at the time that the offense[s] occurred," the State argued that the medications that S.G. was taking to stabilize her conditions actually worked to "improve her credibility rather than detract from it." The State further asserted that even if the court were inclined to grant the defendant's motion, S.G.'s mental health records were in Arkansas, so they were unlikely to be obtainable with a "mere subpoena."
In response to the State's arguments, defense counsel acknowledged that all he knew was that S.G. had "sought some intensive mental health treatment." Counsel maintained that his "dilemma" was that he needed the requested records to determine the potential relevancy of S.G.'s conditions and medications.
Finding that the defendant had failed to meet his burden of establishing that S.G.'s mental health records were material and relevant, the trial court (the Honorable James Roberts) denied the defendant's motion for the issuance of a subpoena for the production of the records. Noting that child victims of sexual abuse commonly seek remedial counseling and treatment, the court ruled that the mere fact that S.G. was apparently receiving that treatment and the defendant's suggestion that "there might be something in [S.G.'s] records that could be helpful" were not enough to justify the disclosure of the records. The court further ruled, however, that if the defendant became aware that S.G. was suffering from "severe mental health issues" unrelated to the sexual abuse, the defendant could so allege and the court would reconsider his motion.
The defendant subsequently filed a motion to reconsider the denial of his motion for the issuance of a subpoena for the production of S.G.'s mental health records. The motion to reconsider alleged, inter alia, that S.G. "had exhibited signs indicative of mental illness before coming into contact with the [d]efendant" and "[t]hat due to the relationship between [S.G.] and the [d]efendant[,] he [was] entitled to inspect [her mental health] records." When the motion to reconsider was later argued, defense counsel again maintained that his "dilemma" was that he needed S.G.'s mental health records to determine the potential relevancy of S.G.'s conditions and medications. Indicating that one of the reasons why S.G. had moved to Illinois to live with the defendant was her "mother's inability to control her," counsel suggested that S.G. might have been treated for "some mental illness that stemmed from before she came into contact with [the defendant]." Counsel also reasserted that the defendant was entitled to examine S.G.'s mental health records because of his status as her father.
Again noting that S.G. had sought treatment for her psychiatric issues after moving back to Arkansas in 2006, the State again argued that the defendant had failed to establish a sufficient nexus between S.G.'s mental health conditions and her credibility as a witness. The State contended that the disclosure of her privileged records was thus unwarranted under the circumstances.
Finding no reason to disturb its prior ruling, the trial court (the Honorable Ronald D. Spears) denied the defendant's motion to reconsider. Noting that there was nothing to indicate that S.G. had undergone anything other than "postevent psychological counseling," the court suggested that the defendant was essentially asking it to go on a "fishing expedition." Indicating that the "rape counselor privilege" would also apply to the requested records, the court stated that if the defendant knew where S.G.'s mental health records were, he could possibly obtain them in his parental capacity, but the court would still have to review them in camera and "rule on them."
In November 2008, the State filed a six-count amended indictment charging the defendant with six specific acts of sexual penetration occurring between July 2004 and March 2006, and in February 2009, the cause proceeded to a jury trial. At the start of the trial, defense counsel filed a motion in limine to preclude the State from introducing evidence of S.G.'s "mental state before having any contact with the [d]efendant and at the time of [her] allegations." The motion argued that "any testimony from [S.G.] regarding any treatment since these allegations arose should be prohibited as *** irrelevant." When arguing the motion, defense counsel maintained that because the defendant's requests to ...