Appeal from Circuit Court of McLean County No. 09CF547 Honorable Charles G. Reynard, Judge Presiding.
The opinion of the court was delivered by: Justice Pope
JUSTICE POPE delivered the judgment of the court, with opinion. Justice Appleton concurred in the judgment and opinion.
Justice Cook dissented, with opinion.
¶ 1 In February 2010, a jury convicted defendant, Curtis Vannote, of aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(1)(i) (West 2008)). In August 2010, the trial court sentenced defendant to seven years' imprisonment.
¶ 2 Defendant appeals, arguing (1) the trial court erred in admitting the victim's recorded interview, (2) the court erred in allowing evidence of defendant's prior conviction for aggravated criminal sexual abuse, and (3) the evidence was insufficient to prove defendant guilty beyond a reasonable doubt of aggravated criminal sexual abuse. We affirm.
¶ 4 In June 2009, the State charged defendant with aggravated criminal sexual abuse, alleging he touched then nine-year-old K.S.'s penis for the purpose of sexual arousal or gratification.
¶ 5 Prior to trial, the trial court allowed the State's motion to present evidence defendant had been previously convicted of aggravated criminal sexual abuse in March 1995 in McLean County case No. 94-CF-1037. Defendant's prior conviction involved his hand touching a nine-year-old boy's penis and buttocks under the child's clothing.
¶ 6 During trial, K.S., then 11 years old, testified he could not remember the events of the day defendant allegedly touched him. K.S. also testified he did not remember being interviewed about defendant touching him. K.S. also stated he did not know why he was in court. As a result, the State moved to admit a video of a June 2009 interview of K.S. by Detective Michael Burns at the McLean County Children's Advocacy Center (Advocacy Center). The trial court excused the jury and held a conference on the matter.
¶ 7 During the conference, Burns testified to the accuracy of the video but stated, due to an equipment malfunction, approximately 35 seconds toward the beginning of the interview was not recorded, i.e., the video skipped ahead 35 seconds. (The counter reflects a 31-second gap and the parties and the court refer to a 31-second gap and at times to a 35-second gap). Burns testified the omitted portion of the video contained routine background information. The parties viewed the video. According to the video, K.S. told Burns that while defendant was sitting on the front steps of K.S.'s mother's house, defendant "grabbed my private" and held it for approximately 10 seconds. K.S. pointed to his groin area to show what he meant by "private." K.S. stated defendant's touching him did not feel good. K.S. also stated defendant said something to him while he was grabbing K.S.'s private but K.S. did not know what defendant said. K.S. also stated K.S.'s mother's adult friend and roommate, Sergio Gloria, heard K.S. telling his mother what had happened. Sergio then punched defendant "right in the eye," knocking him unconscious. According to K.S., defendant "fell to the ground" and was "laying there snoring and he had blood all over [him]."
¶ 8 Defendant objected to the video's admission because after the 31- to 35- second skip, the video resumed with K.S. stating, defendant "grabbed my private" and "I told my mom." The trial court reserved its ruling on the video's admissibility.
¶ 9 When testimony resumed, K.S. testified he recalled being taken to the Advocacy Center for an interview, but he did not recall what he said there. K.S. testified he did not recall the police coming to his mother's house about a fight. K.S. also did not recall being interviewed by Burns.
¶ 10 On cross-examination, the following colloquy took place between defendant's trial counsel and K.S.:
"Q. MR. LEWIS [(defendant's trial counsel)]: Ms. Patton [(the assistant State's Attorney)] had asked you about whether you remember going to the Children's Advocacy Center; correct?
Q. And there's a statement. You talked to somebody there?
Q. And talking to someone there, do you recall saying that you were tapping [defendant] on the shoulder?
Q. And you'd been playing with [defendant]?
Q. You were outside on the steps?
Q. Now, was there a time where you mentioned to your brother something that you thought happened?
Q. Do you recall that, on the day before, indicating to your brother that someone touching you was an accident?
Q. [Defendant] raised his arm, and rubbed ...