Appeal from the Circuit Court of Cook County.05 CR 6444 Honorable Kenneth J. Wadas, Judge Presiding.
The opinion of the court was delivered by: Justice Neville
JUSTICE NEVILLE delivered the judgment of the court, with opinion. Justice Steele concurred in the judgment and opinion.
Justice Murphy specially concurred, with opinion.
A jury found the defendant, Jason Lara, guilty of two counts of predatory criminal sexual assault (PCSA) for inserting his finger into the vagina of an eight-year-old girl, J.O. On appeal, Jason argues that the State failed to prove the corpus delicti of the offense, because the State failed to present any evidence corroborating Jason's confession that he put his finger inside J.O. We agree. The State's evidence, apart from the confession, supported a finding of only the lesser-included offense of aggravated criminal sexual abuse (ACSA). Accordingly, we vacate Jason's convictions for PCSA, reduce Jason's convictions for PCSA to convictions for ACSA, and remand for sentencing on the ACSA convictions.
Augustina P. had two children, J.O. and C.A. Augustina, who worked many evenings, often asked her friend, Shelley Lara, to look after her two children. Sometimes J.O. and C.A. slept at Shelley's home, where Shelley's son, Jason, also slept. Augustina began dating John Cordero after she separated from her husband, Phillip A., who was C.A.'s father.
On February 11, 2005, Jason told Cordero that once, when Phillip A. came to visit, Jason heard sounds of licking and sucking coming from a room where Phillip A. and J.O. were alone together. On February 17, 2005, Cordero and Augustina went out for a few drinks after Augustina got off work. Cordero told Augustina what Jason had said.
The following morning, Augustina asked Cordero to talk to J.O. about the matter. Augustina's sister brought J.O. and C.A. to Cordero's home, before school. Cordero took J.O. into a bedroom and asked her if Phillip had ever touched her in a way that made her uncomfortable. J.O. said, "Yes, he has but it wasn't Phillip." Instead, J.O. said Jason had touched her inappropriately.
Augustina came into the bedroom to talk to J.O., and again J.O. said Jason, not Phillip, had touched her "private part." Augustina called Shelley and the police. Shelley and Jason came to Cordero's home. Police officers arrested Jason.
Carey Kato, a forensic interviewer working for the Children's Advocacy Center, interviewed J.O. later that day. J.O. said that on two occasions about a month earlier, Jason had touched her "private part." She pointed to her vagina. J.O. explained that when she and her sister slept at Shelley's home, they would sleep on the floor next to the bed in the living room where Jason slept. One night she woke up to find her pants and underpants pulled down to her knees, and Jason's hand resting on her "private part." A few days later, when she came back to lie on the floor after going to the bathroom late at night, Jason put his hand inside her panties and on her vagina. Kato specifically asked whether Jason put his hand inside her, and J.O. said it was outside her vagina on both occasions.
Jason signed a statement about the incident later that day. He admitted that in January 2005, on two separate occasions, he put his hand in J.O.'s pants and touched her vagina. According to the written statement, he said that on the first occasion, while J.O. slept, he put his finger into her vagina as far as his fingernail, and then J.O. woke up. The second time J.O. was already awake when he put his finger into her vagina, with the finger again entering as far as the fingernail.
A grand jury indicted Jason on 11 separate counts for sex crimes against J.O., and prosecutors chose to try him on 2 counts of PCSA (720 ILCS 5/12-14.1(a)(1) (West 2004)).
Before trial, the prosecution filed a motion seeking to admit at trial testimony about the statements J.O. made to Augustina, Cordero and Kato. Augustina and Cordero testified at the hearing on the motion about the circumstances in which they elicited J.O.'s disclosures. Detective Linda Paraday, who watched Kato interview J.O., testified about that questioning and J.O.'s answers. The trial court found that the questions did not effectively coach J.O. to give the answers she gave, and therefore, the statements were sufficiently reliable for admission into evidence under section 115-10 of the Code of Criminal Procedure of 1963 (Code)(725 ILCS 5/115-10(a), (b) (West 2008)).
Jason asked for a jury trial. The judge admonished the venire about the principles that the jurors must presume the defendant's innocence, the State must prove the defendant's guilt beyond a reasonable doubt, the defendant has no duty to present any evidence, and the jurors must not hold against the defendant his exercise of his right not to testify. See Ill. S. Ct. R. 431(b) (eff. May 1, 2007). The judge also asked the jurors, in panels of four, whether they agreed with the presumption of innocence and the burden of proof. The judge did not ask the jurors about the defendant's lack of a duty to present evidence or the right not to testify.
At the trial, J.O. testified that for the first incident, while she slept, she felt Jason's hand inside her pants, touching her vagina. She woke up and took her sister with her as she went to spend the rest of the night in Shelley's room. About three days later, when she again slept on the floor next to Jason's bed, she got up during the night to use the bathroom. When she came back, Jason again put his hand on her vagina. She pushed his hand away and went back to sleep. She did not tell her mother or Shelley about either incident because she thought she would get in trouble.
Augustina, Cordero and Paraday repeated the testimony they gave at the pretrial hearing. Paraday admitted that when Kato interviewed J.O., J.O. specified that Jason's hand stayed outside her vagina in each incident. An assistant State's Attorney read to the jury the handwritten statement Jason signed. The parties stipulated that in January 2005 Jason was 19 years old.
Jason testified that he never touched J.O. inappropriately, and he never put his hand in her pants. Partly because of a conversation he had with J.O., he told Cordero about the sucking sounds he heard coming from a room where J.O. was alone with Phillip. After the arrest, Jason spent some hours locked in a cell. He fell asleep. When he awoke, he could not stand straight. He also experienced some twitches he could not control. He testified that he might have had an epileptic seizure in the cell without realizing it. He did not recall much about the statement he signed at the station. He could not make much sense of what the officers had tried to say to him.
A doctor testified that Jason suffered from epilepsy, and at the time of the arrest, medications did not adequately control his condition. The doctor had no opinion as to whether Jason suffered a seizure on the day of the arrest. The doctor testified that epileptics often remain confused for hours after a seizure.
The court instructed the jurors that when they considered the testimony of any witness, they could take into account the witness's "ability and opportunity to observe, his memory, his manner while testifying, any interest, bias or prejudice he may have, and the reasonableness of his testimony considered in the light of all the evidence in the case." The court did not instruct the jurors on the weight they should give statements made out of court, or factors to consider in assessing the credibility of children's statements. See 725 ILCS 5/115-10(c) (West 2008). The court refused Jason's request for an instruction on the lesser-included offense of ACSA.
The jury found Jason guilty on both counts of PCSA. The trial court sentenced him to terms of 10 years and 8 years in prison, with the sentences to run consecutively. Jason now appeals.
Jason raises six separate arguments on appeal. He argues (1) the trial court should have excluded the testimony about J.O.'s out-of-court statements; (2) the court failed to comply with Supreme Court Rule 431(b) concerning admonitions to jurors; (3) the evidence proved the corpus delicti only for ACSA, and not for PCSA; (4) the trial court should have instructed the jury in accord with the requirements of section 115-10(c) of the Code; (5) the trial court should ...