Appeal from Circuit Court of Woodford County No. 08CF55 Honorable John B. Huschen, Judge Presiding.
The opinion of the court was delivered by: Justice Pope
2011 IL App (4th) 080983-B
JUSTICE POPE delivered the judgment of the court, with opinion. Justices Turner and Steigmann concurred in the judgment and opinion.
¶ 1 In September 2008, a jury found defendant guilty of predatory criminal sexual assault (720 ILCS 5/12-14.1(a)(1) (West 2006)). Defendant appealed, arguing (1) section 115-10 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-10 (West 2006)) is unconstitutional; (2) the trial court abused its discretion by allowing the State to introduce R.K.'s videotaped statement pursuant to section 115-10 of the Code (725 ILCS 5/115-10 (West 2006));
(3) the State failed to establish defendant's guilt beyond a reasonable doubt; and (4) defendant's trial counsel was ineffective for failing to argue R.K.'s testimony at trial made her unavailable as a witness and denied defendant his right to confront witnesses against him. We affirmed. People v. Lara, 402 Ill. App. 3d 257, 932 N.E.2d 1052 (2010).
¶ 2 The Supreme Court of Illinois denied defendant's petition for leave to appeal but issued a supervisory order (People v. Lara, No. 110803, 944 N.E.2d 345 (Mar. 30, 2011) (nonprecedential supervisory order on denial of petition for leave to appeal)) directing this court to vacate our prior judgment and reconsider our decision in light of People v. Kitch, 239 Ill. 2d 452, 942 N.E.2d 1235 (2011). In accordance with the supreme court's direction, we vacate our prior judgment and reconsider in light of Kitch to determine whether a different result is warranted. Because Kitch does not change the result in this case, we again affirm.
¶ 4 In June 2008, a grand jury indicted defendant, charging him with predatory criminal sexual assault for committing an act of sexual penetration on R.K. between July 13, 2007, and May 7, 2008. At the time of the offense, R.K. was 5 years old (born September 16, 2002) and defendant was 25 years old. The indictment alleged defendant placed his mouth on R.K.'s vagina.
¶ 5 In June 2008, the State filed a notice of its intent to use out-of-court statements made by R.K. to Officer Eric Luckey, a Eureka police officer, on May 9, 2008, at the Child Advocacy Center in Eureka, Illinois, pursuant to section 115-10(a) of the Code (725 ILCS 5/115-10(a) (West 2006)).
¶ 6 In July 2008, a hearing was held on R.K.'s out-of-court statement. At the hearing, Officer Luckey testified he had been a police officer for 20 years. He testified he had received special training on how to interview children who are victims of sexual abuse or severe physical abuse. In April 2006, he attended a 40-hour class geared toward preparing individuals to interview children in situations such as this case. Luckey testified he received additional training in April 2007 and May 2007.
¶ 7 Officer Luckey testified these training sessions taught him the key to interviewing children is to ask open-ended, nonleading questions in an environment that is comfortable for the child. Luckey testified he typically does not know the alleged facts of the case before interviewing a child so that he can avoid leading the child. Luckey testified he wants a child he is interviewing to feel comfortable and not intimidated so the child can tell him what happened.
¶ 8 According to Luckey, he had conducted between 30 and 50 interviews with children alleged to be victims of sexual or physical abuse. Luckey testified individuals observing the interview, who are not in the interview room, are able to communicate with him through a computer monitor mounted on the wall in the interview room.
¶ 9 Luckey testified he interviewed R.K., who was five at the time, at the Child Advocacy Center in Eureka in May 2008. He was the only individual in the room with R.K., but the interview was both audio- and video-recorded. The video of the interview was admitted into evidence at the hearing as People's exhibit No. 1. Luckey testified he did not believe R.K. had been coached prior to the interview.
¶ 10 In August 2008, the trial court granted the State's motion to admit R.K.'s out-of-court statement, provided R.K. testified at trial. The court found the interview contained sufficient safeguards of reliability.
¶ 11 In September 2008, at defendant's jury trial, Kathleen K. testified she is R.K.'s mother. She, R.K., and her son live in a two-story house with a basement. R.K. had her own bedroom on the first floor of the house. Kathleen's bedroom was on the second floor.
¶ 12 Kathleen testified she dated defendant between July 2007 and May 2008. She testified defendant stayed at her house during that period. According to her testimony, defendant began to stay at her house more frequently in January 2008, approximately five nights per week. She testified her children were present in the home when defendant spent nights there.
¶ 13 According to her testimony, her roommate and babysitter, Dustin Plitus, watched R.K. and her brother while Kathleen was at work. She testified most of the time, she did not leave the children alone with defendant. However, she testified he was alone with the children once or twice for approximately two hours when she went to the grocery store. Kathleen testified she left for work at 4 a.m. Dustin and defendant would be sleeping on the second floor when she left. She testified defendant had to leave her house between 5:30 and 6 a.m. to get to work.
¶ 14 Kathleen also testified defendant had an eyebrow ring, two lip rings, a labret piercing, and a tongue ring. She stated defendant usually always wore his jewelry, even while sleeping, unless he was going to church.
¶ 15 Kathleen testified R.K. told her about the allegations against defendant in the car when she and R.K. were alone. Kathleen said she and R.K. had never talked about any type of sexual matters prior to this. Kathleen called the Child Advocacy Center, which referred her to the Department of Children and Family Services (DCFS) and the police.
¶ 16 Kathleen testified R.K. still loved defendant. She testified R.K. and defendant got along well together and R.K. considered defendant her friend. She said she had never seen defendant do anything inappropriate to R.K.
¶ 17 The State called R.K. as a witness. R.K. testified people are not supposed to touch certain parts of her body. When asked which parts, R.K. pointed down. When asked what she called the part to which she pointed, she said "[b]ottom body." R.K. testified it was on the front of her body and that defendant had touched her on that part of her body. When asked how many times defendant had touched her "bottom body," she said "100."
¶ 18 When asked by the State, "Did he touch you with anything else beside his hand," R.K. answered, "No." She said she told defendant to "quit it" when he touched her. R.K. testified defendant would stand and look at her when he was not touching her. R.K. testified she told her mother, while riding in the car with her, what defendant had done to R.K. When asked why she told her mom, R.K. responded, "Because he was doing something wrong."
¶ 19 R.K. said no one else had ever touched her "down there." Besides her mom and the people in the courtroom, she testified she had never told anyone else about what happened. R.K. testified defendant's hands touched her below her clothes. She also testified his hands were outside her underwear. R.K. stated defendant was not wearing facial jewelry when he touched her "down there." She said defendant did not take off any of his clothes when he touched her "down there," nor did he take off any of her clothes.
¶ 20 R.K. testified she considered defendant her friend. However, when the State asked R.K. if she liked defendant, she said no because he did something wrong.
¶ 21 Defense counsel chose to limit his cross-examination of R.K. Defense counsel did not ask her any questions about the alleged incident or any other incidents of inappropriate contact.
¶ 22 After R.K. testified, the trial court heard arguments outside the presence of the jury regarding R.K.'s videotaped statement. Defense counsel argued R.K. did not testify to the elements charged in this case. According to defense counsel, R.K.'s testimony at trial was completely different from what she told Luckey. As a result, defense counsel questioned the reliability of the ...