Appeal from Circuit Court of McLean County No. 08CF327 Honorable Robert L. Freitag, Judge Presiding.
The opinion of the court was delivered by: Justice Appleton
Illinois Court of Appeals, District 4
JUSTICE APPLETON delivered the judgment of the court, with opinion. Justices Steigmann and Knecht concurred in the judgment and opinion.
¶ 1 A jury found defendant, Donnie Andre Maxwell, guilty of two counts of predatory criminal sexual assault, three counts of criminal sexual assault, and one count of aggravated criminal sexual abuse. The trial court sentenced him to consecutive terms of imprisonment on each conviction, aggregating to 54 years of imprisonment.
¶ 2 Defendant appeals on the following grounds. First, he argues that the trial court violated his constitutional right to confront adverse witnesses in that the court prohibited defense counsel from cross-examining the State's medical expert on whether the physical evidence of sexual penetration could have resulted from sexual intercourse with someone other than defendant. We find no abuse of discretion in this respect, considering that defendant failed to make the offer of proof required by subsection (b) of the rape-shield statute (725 ILCS 5/115-7(b) (West 2010)).
¶ 3 Second, defendant argues the State failed to prove him guilty beyond a reasonable doubt. When we view the evidence, however, in a light most favorable to the prosecution, we conclude that a rational trier of fact could find the elements of the charged offenses to be proved beyond a reasonable doubt.
¶ 4 Third, defendant argues that a children's advocacy center assessment in the amount of $15 should be vacated as an ex post facto punishment. The State agrees, and so do we.
¶ 5 Therefore, we affirm the trial court's judgment in part and vacate it in part. We vacate the children's advocacy center assessment and remand this case with directions to amend the sentencing judgment accordingly. Otherwise, we affirm the judgment.
¶ 8 On March 28, 2008, a grand jury returned an indictment against defendant. The indictment consisted of six counts, and the alleged victim in all counts was V.M. The first two counts charged defendant with committing predatory criminal sexual assault (720 ILCS 5/12-14.1(a)(1) (West 2000); 720 ILCS 5/12-14.1(a)(1) (West 2002); 720 ILCS 5/12-14.1(a)(1) (West 2004)) during the period of February 24, 2000, through September 4, 2004. Count I alleged penis-to-vagina penetration, and count II alleged penis-to-mouth penetration.
¶ 9 Counts III, IV, and V charged defendant with criminal sexual assault (720 ILCS 5/12-13(a)(3) (West 2004); 720 ILCS 5/12-13(a)(3) (West 2006)). Count III alleged penis-to-vagina penetration occurring between September 5, 2004, and September 5, 2007. Count IV alleged penis-to-mouth penetration occurring during the same time period. Count V alleged penis-to-mouth penetration occurring between August 1, 2005, and September 5, 2007.
¶ 10 Count VI charged defendant with committing aggravated criminal sexual abuse (720 ILCS 5/12-16(b) (West 2004); 720 ILCS 5/12-16(b) (West 2006)) sometime during the period of September 5, 2005, through September 5, 2007. This count alleged that V.M. was under age 18 at the time of the offense, that defendant was a family member, and that he deposited his semen onto
V.M.'s arm for his own sexual gratification or arousal.
¶ 12 1. The State's Case in Chief
¶ 13 The jury trial occurred on January 19 and 20, 2010. In its case in chief, the State called the following witnesses. Under each witness's name, we will summarize the witness's testimony.
¶ 15 i. Her Immediate Family
¶ 16 V.M., who was 18 at the time of trial, resided with her mother, Valencia Wilson, and her three sisters, who were 16 or 17, 15, and 12. Defendant had lived with them off and on. Most of the time, he was incarcerated.
¶ 17 ii. Various Dwelling Places, the Loci of the Offenses
¶ 18 V.M. was born in Chicago on September 5, 1991, and when she was in second or third grade, the family moved to Bloomington. At first, V.M., her mother, and her sisters lived in a mission. Afterward, they lived in the following places, in this order: "Sunnyside," "Danberry," and "Turnberry" (as V.M. referred to them). Apparently, these were apartment buildings in Bloomington.
¶ 19 V.M. recounted the various sexual acts that defendant performed on her in each of these places.
¶ 21 V.M. could not remember how old she was when the sexual abuse started, but she knew she would have been in grade school and younger than 14. At Sunnyside, the abuse always occurred in the living room.
¶ 22 At night, when everyone else was asleep, defendant called V.M. into the living room, asking her to bring him an ashtray or something. When she arrived, he pulled down her pants and stuck his penis in her vagina. Sometimes, when he finished doing that, he compelled her to put his penis in her mouth and to swallow his "sperm." After these sessions, V.M. returned to her bedroom.
¶ 23 V.M. did not tell anyone because, first, she did not think anyone would believe her; second, she was afraid that defendant "might come back for [her]"; and, third, defendant had warned her that if she ever said anything, her mother would "put both of [them] out and get mad."
¶ 25 From Sunnyside, the family moved to Danberry. V.M. could not remember when, exactly, the move occurred, but she had turned into a teenager by then and was in junior high school.
¶ 26 At Danberry, the sexual abuse always happened in her mother's bedroom. At daytime, when her mother was away at work, defendant sometimes called V.M. out of the bedroom that she shared with her sisters, asking her to help him "or to fix something." He then took her into her mother's bedroom and closed the door behind them. He compelled her to disrobe and to lie down on her back on the bed, and he stuck his penis in her vagina. Sometimes he also had her open her mouth, and he stuck his penis in her mouth and made her swallow his sperm.
¶ 27 Afterward, V.M. returned to her bedroom, sad and upset. Her sisters asked her what was going on, but she refused to tell them.
¶ 29 In the next apartment building the family lived in, Turnberry, the sexual abuse happened in the bathroom, in Wilson's bedroom, and in the living room. In all these areas of the apartment, defendant had vaginal intercourse with V.M. and forced her to perform fellatio on him.
V.M. emerged from the bathroom hurt-sometimes physically, sometimes emotionally. When she used the toilet afterward, it burned. Defendant made V.M. watch pornographic movies with him late at night in the living room, when everyone else was asleep, and he required her to do to him what the women were doing in the movie.
¶ 30 Defendant also abused V.M. in her mother's car. Because Wilson did not trust defendant with her car-i.e., because she was afraid he would steal it-she insisted, when sending him out on errands, that he take one of their daughters along. He usually chose V.M. While driving, he unzipped his pants and required her to perform fellatio on him. Typically, he drove to a parking lot, such as at Wal-Mart, and commanded her to climb into the backseat, where he had sex with her.
¶ 31 Each time, defendant promised V.M. it was the last time, but there always was a next time-until one day in March 2007, in the bathroom at Turnberry, V.M. resisted. She refused to take his penis into her mouth, and she struggled against him. He "jacked off" and got sperm on her arms. But this was the last time he bothered her sexually.
¶ 32 Eventually, V.M. confided to a friend at school that defendant had been sexually abusing her. V.M. did not tell her mother right away because she did not want to arouse hatred against her from defendant's side of the family, who would think she was a liar. Also, she thought her mother would be angry because her mother "had feelings" for defendant and might "put [her] out for it."
¶ 33 In March 2008, a couple of weeks after telling her friend, V.M. told her mother. V.M. had missed the school bus that morning, and, consequently, her mother had forbidden her to go outside. V.M. responded by throwing herself onto the floor, going into a state of hysteria, and screaming that she wanted to die. That is when V.M. told her mother that defendant had been raping her for the past 10 years. At first, Wilson asked V.M. if she was making this up. When V.M. denied doing so, Wilson hugged V.M., kissed her, and was very sympathetic.
¶ 34 Previously, in March 2006, Wilson had asked V.M. and her sisters, one by one, if defendant or anyone else had been having sex with them. V.M. specifically denied that anyone had been bothering her sexually. V.M. lied on this occasion because she was afraid that Wilson would become angry with her if she accused her father. She also was afraid that her father would do something crazy, such as hurt her.
¶ 36 D.M., age 16, was one of V.M.'s sisters. When Wilson was away at work, D.M. saw V.M. and defendant doing something "weird": defendant would come into V.M.'s bedroom and ask her to do things for him, and then the two of them, V.M. and defendant, would go into the bathroom or into Wilson's bedroom and stay there together for a long time. When V.M. emerged, she looked upset and sad. D.M. asked her what was wrong, and V.M. replied to D.M. that it was none of her business.
¶ 37 Also, there were times when defendant and V.M. left the house and D.M. had no idea where they went. Defendant just took the keys to Wilson's car and ran off with V.M. Or he sent D.M. and her younger sisters to the store, telling them to take their time, while V.M. stayed in the house with him.
¶ 38 c. Richard Horndasch
¶ 39 Richard Horndasch, a pediatrician, examined V.M. on March 28, 2008. V.M. told him that her father had been sexually abusing her since she was four or five years old. She told Horndasch that on many occasions, her father had placed his penis in her mouth and in her vagina. She denied having any pain or bleeding during or immediately following these incidents.
¶ 40 Horndasch testified: "I asked her if he had ejaculated at any time, and I made sure that she knew what I meant by that. And her reply to me was [']I think so but I don't know for sure.['] " This ambivalent reply increased V.M.'s credibility in his eyes. He explained: "[T]he fact that she's admitting to me that she doesn't know typically to me, I interpret that to mean that there's a greater chance that they're telling the truth if they're admitting that they don't know for sure rather than just saying [']oh, yeah, yeah, that happened, everything you say happened, yeah.['] "
¶ 41 When examining V.M.'s genitalia with the naked eye, Horndasch saw nothing unusual, but in the colposcopic examination, he saw that the hymen, the thin mucous membrane just inside the lips of the vagina, had been traumatized. The normally smooth contour of the hymen was ragged and irregular, and parts of the hymen were missing. V.M. had suffered a "penetrating trauma to the vagina." The damage was from the 2 o'clock to 10 o'clock regions, as if caused by friction of the penis on the hymen. Horndasch ...