Appeal from the Circuit Court of De Kalb County. No. 04-CF-0733 Honorable Robbin J. Stuckert, Judge, Presiding.
The opinion of the court was delivered by: Justice Burke
JUSTICE BURKE delivered the judgment of the court, with opinion.
Presiding Justice Jorgensen and Justice Birkett concurred in the judgment and opinion.
¶ 1 Following a bench trial, defendant, Joseph E. Sundling, was convicted of two counts of aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(1)(i) (West 2004)) and was sentenced to a term of 20 years' imprisonment with a lifetime term of mandatory supervised release. On appeal, defendant raises a number of issues regarding the admission of hearsay evidence, the admission of prior convictions, the denial of his sixth amendment right to confrontation, and ineffective assistance of counsel.
¶ 2 We already have issued a decision in this appeal, rejecting defendant's contentions and affirming the trial court's judgment. People v. Sundling, No. 2-07-0455, slip order at 26 (2009) (unpublished order under Supreme Court Rule 23) (Sundling I). The supreme court, however, in the exercise of its supervisory authority, has directed us to vacate our judgment and to reconsider it in light of People v. Kitch, 239 Ill. 2d 452 (2011), to determine if a different result is warranted. People v. Sundling, 2011 IL 109619. Accordingly, we vacate our judgment and, after reconsidering our decision in light of Kitch, we arrive at the same conclusions as before. Therefore, we again affirm the trial court's judgment.
¶ 4 On November 23, 2004, defendant was indicted on two counts of aggravated criminal sexual abuse. The indictment alleged that defendant, being over the age of 17, committed an act of sexual conduct with M.D.B. (count I) and J.M.H. (count II), both of whom were under the age of 13 when the acts were committed, in that defendant knowingly fondled the penis of each minor for the purpose of the sexual gratification of defendant.
¶ 5 Following a hearing pursuant to section 115-10 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-10 (West 2006)), the trial court determined that out-of-court statements that M.D.B. had made to his mother, Tina, and to Detective Roger Plant were admissible. The court found that the time, content, and circumstances under which the statements were made provided sufficient safeguards of reliability for their admission. It found that the version of events that M.D.B. shared with his mother and with the detective on videotape, as well as M.D.B.'s notations on a drawing, were substantially consistent. The court also determined that neither Tina nor Plant prompted or manipulated M.D.B. and that Plant asked leading questions only to clarify certain details. The court also found that the evidence was void of any motive to lie, that M.D.B.'s statements were in response to questions, and that his demeanor appeared to be age appropriate.
¶ 6 At trial, C.I., M.D.B.'s brother, testified that, sometime in November 2002, he was playing in the basement of his house with M.D.B. and his cousins, including J.M.H. While they were in the basement, defendant came downstairs alone and began wrestling with them. C.I. remembered seeing defendant throw M.D.B. on the waterbed and that defendant tickled M.D.B. while saying, "tickle here, tickle there," and then touched M.D.B.'s penis. The touching occurred over M.D.B.'s underwear. C.I. remembered that M.D.B. wore a shirt and underwear and that J.M.H. wore a shirt and a diaper. C.I. also saw defendant tickle M.D.B. on the stomach and armpit. C.I. stated that defendant picked up J.M.H. and threw him on the waterbed and tickled him. C.I. stated that defendant then reached underneath J.M.H.'s diaper and told J.M.H. about three times that he was "going to get your penis." The other cousins called defendant a faggot. All the cousins jumped on defendant's back. Before defendant went upstairs, he said, "Don't say anything." Approximately two months later, C.I. told his mother about the incident after his mother asked him. C.I. stated that he did not tell her sooner because he was scared.
¶ 7 M.D.B., who was four years old at the time of the incident and eight during the trial, testified that he remembered meeting "someone named Joe" and that, one day, he wrestled with him along with his cousins J.M.H., T., and Z. When asked what he remembered about the wrestling, M.D.B. stated that he really did not remember. He did remember defendant touching him but not where he was touched. When prompted further, M.D.B. replied again that he could not remember.
¶ 8 Plant testified about his videotaped interview with M.D.B. He initiated investigating defendant based on Tina's suspicions after she learned that defendant was a convicted sex offender. Plant knew about the accusations prior to interviewing M.D.B. Defendant objected to the admission of the videotaped interview. The trial court overruled the objection and the videotape was played for the court.
¶ 9 The State asked Plant about the drawing in which M.D.B. circled the area where defendant had touched him and J.M.H. The circles were drawn on the genital area, the left hand, and the center of the back. Defendant objected to the drawing being admitted into evidence, arguing that the drawing was misleading because it showed a naked boy and there was no evidence that either of the boys in the present case was naked. The court overruled the objection and admitted the drawing into evidence.
¶ 10 Plant testified that M.D.B. had hesitated to answer some of the questions during the interview and sometimes appeared to answer questions in order to satisfy Plant. Plant testified that M.D.B. did not hesitate to point to his penis as the place where defendant had touched him.
¶ 11 Tina testified that defendant came to her house about four times over a three-week period in November 2002. The third time that defendant visited, he brought toy trucks for the children. During that visit, he also sought permission from Tina to take her children and her nephews, N., T., Z., and J.M.H. to the movies and a motel. Tina did not allow the boys to go. On his fourth visit, defendant played alone with T., Z., C.I., M.D.B., and J.M.H. in the basement. At the time, Tina was upstairs on the first floor with her sister-in-law, Christy.
¶ 12 In January 2003, about two months after defendant had been alone with the children in the basement, Tina developed some concerns about how defendant might have interacted with them, which prompted her to speak to them. Tina first talked to M.D.B., who was playing in his bedroom. Although she did not remember her exact words, Tina basically asked M.D.B. if he remembered defendant. M.D.B. responded yes. Tina then asked him if anything had ever happened with defendant that she needed to know about. M.D.B. would not answer, and Tina directly asked if defendant had ever touched him inappropriately. M.D.B. replied that defendant had touched J.M.H. and he pointed to his own penis.
¶ 13 Tina then drove to see C.I., who was in school. She took him out of school and, on the way to the car, Tina asked him the same basic question that she had asked M.D.B.: had defendant ever done anything inappropriate to him. C.I. responded no but said that defendant did something inappropriate to J.M.H. and M.D.B. C.I. told Tina that defendant was tickling M.D.B. and J.M.H. and saying "I'm going to get your penis."
¶ 14 When she returned home, Tina talked to M.D.B. again. She told him that she needed to know if defendant had ever touched him. M.D.B. did not answer. After two minutes, Katherine, Tina's mother-in-law, came into the room and told M.D.B. that this was very important and that he needed to tell them if defendant had ever done anything to him. Tina stated that M.D.B. screamed "no" and ran out of the room. (At the pretrial hearing, Tina stated that M.D.B. yelled "yes." However, on cross-examination, Tina stated that Katherine actually "got [M.D.B.] to say that [defendant] touched him and his penis.") After that, he would not talk about it and Tina went to the police station to report what she had learned.
¶ 15 Kim, J.M.H.'s mother, testified about the conversation she had with defendant that was recorded on January 15, 2003, and was played at trial. It revealed the following. Kim told defendant that she was calling about a time when defendant "was downstairs playing with the boys" at Tina's. Kim told defendant that the boys said that he tickled their penises while wrestling. Defendant told her that he recalled wrestling with the boys but did not remember touching their penises. Defendant told Kim that, if that had happened, it was inadvertent. Defendant said to Kim that she knew about defendant's prior history with children and that it was her family that told him not to inform others. Defendant admitted his attraction to children, but he told Kim that he would not have been attracted to J.M.H. because J.M.H. was not circumcised. Kim asked him how he knew that. Defendant replied that he had seen Kim bathe J.M.H. many times.
¶ 16 Kim testified that defendant was never with her when she bathed J.M.H. or changed his diapers. She explained that J.M.H. had been circumcised as a baby but that it appeared as if he had not been.
¶ 17 Detective Michael Stewart testified that he took over the investigation in 2004, after Plant left the De Kalb police department. On January 5, 2004, he and another officer went to defendant's home to question him about the incident at Tina's home. Stewart testified that, when he questioned defendant about the children who were in the basement, defendant "categorically denied" ever touching them for sexual purposes.
¶ 18 Defendant testified on his own behalf. He stated that he visited Tina's home several times in November 2002 to see his friend Jimmy. Jimmy is J.M.H.'s father and was living in Tina's basement at the time. Defendant remembered bringing toys for the children and a camera for Tina one day in November. Defendant stated that these items were "giveaways" from his work. Defendant also admitted that he had asked Tina if he could take the children to a movie. Defendant stated that he jokingly asked if he could take the boys to a hotel because they had asked him if they could come swimming at the hotel where he was staying.
¶ 19 Defendant remembered that he had gone down to the basement one day in November with Jimmy. Jimmy was preparing J.M.H. for bed. Other children were in the basement playing, including C.I., M.D.B., and Z. Some were watching television and others were wrestling on a waterbed. Defendant stated that both he and Jimmy joined the wrestling by throwing the kids down on the waterbed. Defendant said that he was in the basement for 15 to 20 minutes. He testified that he left the basement before the boys, to find Jimmy upstairs.
¶ 20 Defendant admitted on cross-examination that he was alone in the basement with the boys. Defendant stated that it was possible that he might have brushed up against the boys' genital areas while he was wrestling with them but that it was not his intent to commit any kind of sexual act. The boys were dressed when he wrestled with them.
¶ 21 Defendant testified that he remembered a telephone conversation with Kim, who asked him if anything had happened in the basement. Defendant told her that nothing had happened. Kim asked him how he knew that J.M.H. was not circumcised and defendant told her that he had seen him running around naked several times after he swam in the pool in the backyard.
¶ 22 Defendant testified that he informed Kim and her sister, Phyllis, about his prior convictions because he was often in their house. On cross-examination, defendant admitted that he was sexually attracted to young boys and that he had sexual urges to have contact with the penises of young boys. He stated that he was aware of this when he was wrestling with the victims. Defendant denied that he was attracted to boys as young as three.
¶ 23 Following closing argument, the trial court found defendant guilty of aggravated criminal sexual abuse as to both M.D.B. and J.M.H. Thereafter, the trial court sentenced defendant to 20 years' imprisonment. Defendant filed no posttrial motions.
¶ 25 Preliminarily, because his counsel did not file a posttrial motion, defendant requests that we review the issues he presents on appeal under the plain-error exception to the forfeiture rule. The plain-error doctrine bypasses normal forfeiture principles and allows a reviewing court to consider unpreserved error when either (1) the evidence is close, regardless of the seriousness of the error, or (2) the error is serious, regardless of the closeness of the evidence. People v. Herron, 215 Ill. 2d 167, 187 (2005). Under the first prong, the defendant must prove "prejudicial error." That is, the defendant must show both that there was plain error and that the evidence was so closely balanced that the error alone severely threatened to tip the scales of justice against him. Under the second prong, the defendant must prove that there was plain error and that the error was so serious that it affected the fairness of the defendant's trial and challenged the integrity of the judicial process. People v. Piatkowski, 225 Ill. 2d 551, 565 (2007). Prejudice to the defendant is presumed because of the importance of the right involved, "regardless of the strength of the evidence." (Emphasis in original.) People v. Blue, 189 Ill. 2d 99, 138 (2000).
¶ 26 We thus decide whether the trial court committed error and, if so, whether the evidence was so closely balanced that the error alone severely threatened to tip the scales of justice against defendant, or whether the error was so serious that it affected the fairness of the trial and challenged the integrity of the judicial process.
¶ 27 Admissibility of M.D.B.'s Hearsay Statements Under Section 115-10
¶ 28 Defendant first contends that M.D.B.'s out-of-court statements to Tina and Plant were improperly admitted into evidence, because they did not possess sufficient indicia of reliability or trustworthiness required by section 115-10 of the Code (725 ILCS 5/115-10 (West 2008)), the statutory exception to the hearsay rule. Defendant objected to the admission of M.D.B.'s hearsay statements at trial and, relying on People v. Segoviano, 189 Ill. 2d 228 (2000), he requests that we relax the forfeiture of this issue, even though he failed to file a posttrial motion.
¶ 29 In Segoviano, because the issues were brought to the attention of the trial court, were ruled on by the trial court while the court retained jurisdiction over the matter, and involved the potential of substantial prejudice to the defendant, the supreme court relaxed the forfeiture rule and addressed the defendant's cross-appeal. Segoviano, 189 Ill. 2d at 244. We conclude that, whether or not the forfeiture of this issue is relaxed, we consider the substance of defendant's argument in any event, based on a plain-error analysis. See People v. Naylor, 229 Ill. 2d 584, 593 (2008).
¶ 30 Section 115-10 provides in relevant part that hearsay statements made by a victim under 13 years of age are admissible only if the time, content, and circumstances of the statements provide sufficient safeguards of reliability. 725 ILCS 5/115-10(b)(1) (West 2008); People v. Zwart, 151 Ill. 2d 37, 44 (1992). There are no precise tests for evaluating trustworthiness or reliability, but rather particularized guarantees of trustworthiness must be drawn from the totality of the circumstances surrounding the victim's statements. People v. ...