APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY No. 08 CR 14289 HONORABLE JAMES MICHAEL OBBISH, JUDGE PRESIDING.
JUSTICE STEELE delivered the judgment of the court, with opinion. Justices Neville and Murphy concurred in the judgment and opinion.
Following a bench trial in the circuit court of Cook County, defendant Donnell Perkins was found guilty of attempt aggravated criminal sexual abuse. The circuit court sentenced Perkins to five years in prison. Perkins now appeals, arguing: (1) he did not commit the offense as a matter of law; (2) trial counsel was ineffective in failing to adequately cross-examine a key witness and had a per se conflict of interest in arguing his ineffectiveness after the trial; and (3) his sentence is excessive. For the following reasons, we reject these arguments and affirm the judgment of the circuit court.
The record on appeal discloses the following facts. Perkins was charged by indictment with one count of aggravated criminal sexual abuse (sexual contact with a child under 13 years old) and three counts of criminal sexual abuse. Prior to trial, the State moved to admit out-of-court statements from A.M., the six-year-old victim, to her grandmother and a child advocate, pursuant to section 115-10 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-10 (West 2008)). At the hearing, Deano Beasley Cunningham, A.M.'s maternal grandmother, testified that during the early morning hours of July 7, 2008, she received a telephone call that prompted her to go to Mount Sinai Hospital. Upon arriving at the hospital, she found A.M. sitting in her mother's lap. A.M. looked sad, while Lakesha M., A.M.'s mother, was hysterical.
Cunningham testified that she asked A.M. what happened. According to Cunningham, A.M. said that her ponytail was pulled, a man hit her on the forehead and cheek and touched her "private part." Cunningham began recording A.M.'s statements with a crayon belonging to A.M.'s sister, E.M. A.M. indicated that she was struck with an open hand. A.M. then stated that she had been lying down in her room with her sister when Donnell dragged her out of the room without her permission. Cunningham identified "Donnell" as Perkins, who lived in the house with A.M.'s mother. Cunningham stated that she had known Perkins for approximately 31/2 years.
Cunningham asked A.M. what happened next. A.M. responded that she fell asleep again. A.M. told Cunningham that Perkins was in his bed with her. Perkins wore no clothes and touched her. A.M. further told Cunningham that when Perkins touched her "private area," her panties were down around her ankles. Cunningham testified that she was overwhelmed by these statements and left the room. Cunningham did not observe whether there was any swelling or discoloration of A.M.'s forehead or jaw.
Roziya Lumpkins, a forensic interviewer with the Chicago Children's Advocacy Center (CAC), testified that she had conducted over 500 interviews of children in cases of alleged sexual abuse. On July 7, 2008, after meeting with a police detective and assistant State's Attorney, Lumpkins interviewed A.M. in an interview room with child-sized furniture and a one-way mirror connected to an observation room. After establishing that A.M. knew the difference between the truth and lies, Lumpkin had A.M. promise to tell the truth while they talked.
While discussing her family, A.M. said she had a "grandfather" named Donnell who was "mean." When Lumpkins asked A.M. why she said that, A.M. responded that Donnell pulled her hair and dragged her to a back room where "her brother's toys were." Lumpkins asked what happened after that and A.M. said that she was asleep. A.M. told Lumpkins that her "grandfather" had taken her clothes off, but she did not know how or where he did it. A.M. also told Lumpkins that he had removed his own clothes, but she did not see him do so.
A.M. further stated that she was lying down and he was lying down behind her. A.M. said she did not feel anything weird on her body. A.M.'s mother then came into the room and awakened her by turning on the light. Donnell jumped up. A.M. said his clothes were off, but she awakened with her shirt on. A.M. recalled that she had gone to bed that night wearing her shirt, a skirt and panties. A.M. said that nothing "happened" to either her vaginal or "butt" area.
The State rested. Perkins chose to rest without presenting evidence. The circuit court granted the State's motion to admit A.M.'s out-of-court statements.
At trial, A.M. testified that on the night of July 7, 2008, she was at home with her mother, sister, brother and Perkins. A.M. went to sleep with her sister and brother (I.M.), although her brother shared a room with Perkins. A.M. testified that the next thing she remembered was waking up in I.M.'s room, in a bed with Perkins. A.M. did not remember how she got there.
A.M. was lying on her side, facing the wall, with Perkins behind her, facing the same direction.
A.M. said she did not know what happened while she was in bed with Perkins. A.M. also testified that she went to sleep wearing a shirt and princess underpants and was wearing the same when her mother entered the room and awakened her.
A.M. further stated that her mother took her to the hospital, where she met her grandmother, but did not tell her what happened. According to A.M., she then went to CAC, where she spoke to Lumpkins. A.M. said she told Lumpkins what happened because she remembered what happened when she was talking to Lumpkins.
A.M.'s mother, Lakesha M., testified that in July 2008, she lived at 4333 West Madison Street, above a storefront with her three children and Perkins. She stated that she had known Perkins since childhood. Perkins did not pay rent, but watched Lakesha M.'s children while she attended school and worked.
Lakesha M. testified that on July 6, 2008, she worked and then went to a movie, arriving home between 10:05 and 10:25 p.m. She put her children to bed, then went to her room and fell asleep watching television. She was awakened by her youngest daughter, who said that A.M. was not in her ...