Appeal from the Circuit Court of Cook County No. 07 CR 13421 The Honorable Colleen McSweeney-Moore, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Quinn
PRESIDING JUSTICE QUINN delivered the judgment of the court, with opinion. Justice Cunningham concurred in the judgment and opinion.
Justice Harris dissented, with opinion.
¶ 1 Defendant, Frank Greenwood, appeals his conviction after a jury trial of predatory criminal sexual assault and aggravated criminal sexual abuse, and his consecutive sentences of six years' and three years' imprisonment. On appeal, Greenwood contends: (1) the trial court erred in admitting hearsay statements of multiple witnesses pursuant to section 115-10 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-10 (West 2006)) because such statements were cumulative and improperly bolstered the victim's testimony, and thus exceeded the intended scope of section 115-10; (2) the trial court erred in allowing other crimes evidence of Greenwood's past drug use where it was not relevant to the charged offenses and served only to imply that he had a propensity to commit crimes; and (3) he was denied a fair trial where the trial court failed to instruct the jury that it could consider a witness's age in assessing her credibility. For the following reasons, we affirm.
¶ 3 The trial court sentenced Greenwood on February 19, 2010, and he filed a timely notice of appeal on February 26, 2010. Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the Illinois Constitution and Illinois Supreme Court Rules 603 and 606, governing appeals from a final judgment of conviction in a criminal case entered below. Ill. Const. 1970, art. VI, § 6; Ill. S. Ct. R. 603 (eff. Oct. 1, 2010); R. 606 (eff. Mar. 20, 2009).
¶ 5 Greenwood was charged with multiple counts of predatory criminal sexual assault and other sexual offenses based upon allegations involving Greenwood and his then eight-year-old daughter, R.G., for the time periods of March 31 through May 6, 2007, and May 19 to May 20, 2007. Prior to trial, the court held a section 115-10(b)(1) hearing (725 ILCS 5/115-10(b)(1) (West 2008)) to ascertain the admissibility of out-of-court statements R.G. made to various adults, including Joan Bauer (R.G.'s great-grandmother), Joan Wertz (R.G.'s mother), Danielle Butts (forensic interviewer from the Chicago Child Advocacy Center), and Elisabeth Damia (Department of Children and Family Services (DCFS) investigator). After the four witnesses testified, the parties proceeded to argument. Defendant's trial counsel argued that the State had failed to meet its burden under section 115-10 (b)(1) that "the time, content, and circumstances of the statement[s] provide sufficient safeguards of reliability." 725 ILCS 5/115-10(b)(1) (West 2008).
¶ 6 Unlike defendant's argument on appeal, defendant's trial counsel repeatedly argued that the witnesses' testimony was inconsistent with one another's testimony. Comparing the mother's testimony to the grandmother's testimony, trial counsel argued "no[w] the phrasing changes. The phrasing changes to 'touching privates,' to 'weird places,' to 'coochie,' and all sorts of other suggestions. There is no consistency in the retelling of the story as to the mother." After reciting the testimony of Butts and Damia, trial counsel argued, "What we have in this situation is four different terminologies, and I would suggest that that weakens the State's position." The trial court found that the statements made to the outcry witnesses were "trustworthy and reliable as to the time, content, and circumstances in which they were made" and were admissible only if the victim testified. The trial court also found that R.G.'s statements to Bauer and Wertz on May 22, 2007, were "completely spontaneous" and qualified as "hearsay outcr[ies]."
¶ 7 Prior to trial, citing section 115-3 of the Code, defendant's trial counsel filed a " Motion to Allow Hearsay Statements Made to Medical Personnel," seeking to elicit statements made by R.G. to registered nurse Nancy Healy when she was seen by medical personnel at South Suburban Hospital. The State had no objection and the trial court granted the defense motion.
¶ 8 Greenwood also filed a motion in limine to preclude the State from introducing evidence or testimony of his prior drug use in its case in chief. When the court asked the State whether it planned to elicit such evidence, the State responded that "[w]e are not planning to elicit that; however, there is a divorce in this case and there are issues regarding the visitation, but I have already instructed my witness to not say anything about the defendant's rehab or his drug use." The court granted Greenwood's motion, but warned the defense that "putting the defendant's credibility in issue might open the door" to the evidence.
¶ 9 R.G., who was 11 years old at the time, testified at trial. Greenwood and R.G.'s mother, Wertz, divorced when R.G. was less than two years old. R.G. lived with her mother while Greenwood lived in a two-bedroom apartment 45 miles away in Chicago Ridge. He had visitation with R.G. every other weekend. R.G. testified that in 2007, when she was eight years old, she and Greenwood attended two father-daughter dances. A dance was scheduled for March 2007, but R.G. informed Greenwood that she would be attending that dance with her stepfather. Greenwood was not pleased.
¶ 10 She testified further that the weekend after the March dance, she stayed at her father's apartment. R.G. slept in a bunk bed in Greenwood's bedroom. One night, after R.G. fell asleep, Greenwood picked her up and put her in his bed. While next to her in bed, Greenwood touched her "cuchie" or the part of her covered by a bottom bathing suit. He touched her about 10 to 15 times in this manner over the course of subsequent visits. After the fifth time, R.G. asked what he was doing and Greenwood told her that if she told anyone he would hurt her mother.
¶ 11 R.G. eventually told her great-grandmother that Greenwood was touching her in her "lower front area." When her mother returned home, R.G. testified that she told her that her father "touched her in the lower front area." A woman named Elisabeth (Damia) from DCFS came to school to speak with her and explained the difference between "good" and "bad" touches. When she asked R.G. whether anyone had touched her in a "bad" area (areas of the body covered by a bathing suit), R.G. responded that her father had touched her in that manner. R.G. testified that she also spoke to Butts because her "dad had touched [her]" and Butts had R.G. identify parts of the body on a doll. R.G. further testified that on the same day, she went to the hospital where she spoke to, and was examined by, a nurse because her father "had touched her in the lower front area."
¶ 12 Bauer testified that she sometimes babysat R.G. while R.G.'s mother, Wertz, was out of the house. She had arrived at Wertz's house to watch R.G. on May 21, 2007, the day after R.G.'s weekend visit with Greenwood. On May 22, 2007, while she was baby-sitting, R.G. told her that Greenwood touched her on her "privates." She also told her that she did not tell her mother because Greenwood threatened to hurt her mother if R.G. spoke of the touching to anyone. When Wertz returned about an hour later, R.G. told her what had happened and Wertz called R.G.'s therapist. The therapist also spoke with R.G.
¶ 13 Wertz testified that on May 21, 2007, she took R.G. to an appointment with her therapist. R.G. could not complete the session, however, because she became ill and vomited. R.G. also suffered from emotional outbursts and would hit herself in the head stating that she did not like herself and wished she had never been born. The next day, Wertz went out to lunch while Bauer watched R.G. After lunch, Wertz came home where Bauer and R.G. "were waiting for [her]." Bauer then said, "Are you going to tell her or do I have to?" R.G. then told Wertz that her father "touches [her] - - touched [her] in weird places." Wertz then asked, "Weird, where? Your boobs? Your butt? Your cuchie? Where?" to which R.G. responded, "Yes mom, my cuchie" before breaking into tears. Wertz called the therapist and R.G. had an opportunity to talk to her.
¶ 14 DCFS investigator Damia testified that her agency received a report regarding R.G. on May 22, 2007, and the following day she visited R.G. at her school. She introduced herself and asked R.G. if she understood the difference between lying and telling the truth. R.G. indicated that she understood. Damia then asked whether she knew of the places on her body where no one is supposed to touch except for her mother or her doctor. R.G. answered, "Yes." Damia asked whether anyone had ever touched her in a way that made her sad or uncomfortable and she answered "Yes" and when asked the name of the person, R.G. stated that it was her father. Per DCFS policy, Damia terminated the interview and waited for the agency to schedule a victim-sensitive interview in Cook County, where the incident occurred.
¶ 15 Butts testified that she conducted a victim-sensitive interview with R.G. on May 29, 2007. She conducted the interview in a small, child-friendly room with a two-way mirror. She and R.G. were alone and, using an anatomically correct female doll, Butts asked R.G. to identify body parts. R.G. identified the buttocks as "butt," the vagina as a "private," and the breast as "chest." Butts also determined that R.G. knew the difference between truth and lies. She then asked R.G. "if anything had happened that she wanted to talk about" and R.G. stated that her father had touched her. R.G. responded that the first time he touched her was after the father-daughter dance, and the last time was the last weekend she visited his apartment.
¶ 16 R.G. told Butts that they had separate beds in Greenwood's bedroom, but he would take her out of her bed and place her on her back in his bed. He would then lay down next to her and touch her underneath her underwear. Greenwood wore only boxers when this happened, and he also told R.G. not to tell anyone or he would hurt her mother. When asked to identify on the doll where her father touched her, R.G. pointed to the vagina. Butts asked R.G. whether he touched her inside or outside the vagina, and she told her that he touched her in both places. When asked how it felt, R.G. responded that it hurt. After touching her, ...