Appeal from the Circuit Court of the10th Judicial Circuit, Tazewell County, Illinois, Circuit No. 08-CF-403 Honorable Stephen Kouri Judge, Presiding.
The opinion of the court was delivered by: Justice Wright
JUSTICE WRIGHT delivered the judgment of the court, with opinion.
Presiding Justice Schmidt and Justice McDade concurred in the judgment and opinion.
¶ 1 On July 31, 2008, a Tazewell County grand jury indicted defendant for multiple counts of criminal sexual assault involving three different minors and one count of endangering the health or life of a child. The court granted the State's pretrial motions to introduce evidence of other uncharged sexual conduct and to allow the State to use certain prior criminal convictions for impeachment purposes in the event defendant chose to testify. Defendant was convicted of one count of criminal sexual assault and acquitted of all other charges.
¶ 3 On July 31, 2008, a Tazewell County grand jury issued a six-count bill of indictment. Count I alleged that between August 1, 2001, and August 31, 2005, defendant committed the offense of criminal sexual assault against T.A., who was at least 13 but under 17 years of age, by forcibly placing his penis in her anus. Count II alleged that between August 1, 2001, and August 31, 2005, defendant held a position of trust, supervision, or authority over T.A. and committed the offense of criminal sexual assault against T.A. by placing his penis in the vagina of T.A., who was at least 13 but under 18 years of age.
¶ 4 Count III alleged that between June 1, 2003, and October 31, 2004, defendant committed the offense of criminal sexual assault against S.N., who was at least 13 but under 17 years of age. Count IV alleged that between June 1, 2003, and October 31, 2004, defendant committed the offense of criminal sexual assault against S.N., who was at least 13 but under 18 years of age. Count V alleged that between August 1, 2006, and December 31, 2006, defendant committed the offense of criminal sexual assault against A.P., who was at least 13 but under 18 years of age. Count VI alleged that between June 1, 2003, and October 31, 2004, defendant committed the offense of endangering the life or health of a child by providing alcoholic beverages and drugs to S.N.
¶ 5 On August 29, 2008, the State filed a pretrial motion in limine seeking to admit evidence of uncharged sexual conduct involving an ongoing, long-term sexual relationship with D.C., born August 20, 1991, which began in approximately 2005. The State intended to introduce this evidence to show defendant's propensity, intent and motive to commit the offenses charged in this case. On September 8, 2008, defendant filed a motion in limine seeking to preclude the State from offering evidence of this uncharged conduct and other prior convictions.
¶ 6 On September 10, 2008, the court conducted a hearing on the State's motion in limine. The State called Jeffrey Little, a Pekin police officer and a liaison officer at the Pekin Community High School, who testified that in February 2008, he conducted a traffic stop on a motor vehicle leaving the Pekin Community High School after receiving information that an older gentleman would be picking up D.C., a high school student, without her foster mother's permission. Little discovered defendant driving the vehicle with D.C. in the front passenger seat. D.C. told Little that she had a doctor's appointment for an "abortion check-up."
¶ 7 Angie Huss, a child protective investigator with the Department of Children and Family Services, testified that through her investigation, she listened to recorded telephone conversations and confirmed that the conversations occurred between defendant and D.C. while defendant was incarcerated in jail. The prosecutor played the telephone recordings for the court's consideration.
¶ 8 The State asked the court to find that the proffered evidence showed an ongoing relationship between defendant and D.C. to show that defendant had a propensity to pursue victims of the same age, gender, and situation, being foster children, as the alleged victims in the charged offenses. On September 11, 2008, the trial court entered a written order finding that the State's proffered evidence was admissible.
¶ 9 On October 3, 2008, the trial court conducted a hearing on defendant's motion in limine seeking to bar the admission of defendant's prior criminal convictions for the offenses of retail theft, possession of a controlled substance and endangering the health of life of a child, forgery, bad check, theft, and destruction or tampering of evidence. On October 6, 2008, the court ruled that the State could admit evidence of defendant's prior convictions for the offenses of retail theft, possession of a controlled substance and endangering the health or life of a child, forgery and theft for purposes of impeachment only.
¶ 10 On May 26, 2009, defendant filed a motion in limine, claiming the State intended to offer evidence of uncharged sexual contact with the alleged victims. Defendant argued that the probative value of such evidence was outweighed by the prejudicial effect. On May 27, 2009, the court heard arguments on defendant's remaining motion in limine and ruled that the victims could testify regarding uncharged sexual conduct with defendant.
¶ 11 When testimony began, the State called T.A., who testified before the jury that she was 21 years old, that she was born on August 8, 1987, and that she entered the foster care system at the age of 8. T.A. testified that she was placed with Judy Morris as a foster child when she was 13 years old. According to T.A., Morris would leave T.A. with Morris's daughter, Cathy, who was married to defendant, at defendant's house while Morris played bingo. T.A. testified that when she was 14 years old, defendant engaged in vaginal intercourse with her at his home. She could not recall what defendant said to her and described being forced because "[h]e just kind of took my clothes off." T.A. said that there were other times that defendant had vaginal intercourse with her.
¶ 12 T.A. said that she told Morris and Cathy, in defendant's presence, about the sexual encounter between T.A. and defendant. However, according to T.A., both Morris and Cathy told T.A. that she "was lying about it." T.A. said that defendant stopped having intercourse with her when she was either 15 or 16 years old after S.N. moved into Morris's residence. She told the jury that she did not report defendant to the police because she was afraid of defendant and Cathy. T.A. said that if she told the police, she did not believe that she would have been moved to a different foster home because by then, Morris had guardianship of her. T.A. said that she left Morris's house on the day she turned 18 years old.
¶ 13 T.A. admitted to having problems with Morris and Cathy but denied wanting to get back at them. T.A. admitted that she pled guilty to battering defendant's child but claimed that it was an accident.
¶ 14 Following T.A.'s testimony, the State played several telephone conversations, between defendant and D.C., which were recorded while defendant was incarcerated at the Tazewell County Justice Center on July 31, 2008, August 20, 2008, and August 27, 2008. During the telephone call on July 31, 2008, defendant told D.C. to watch what she said because their conversation could be recorded. Defendant told D.C., "[K]eep your mouth shut, please. Don't hurt us, okay?" Defendant later said during the same recorded conversation that he loved D.C.
¶ 15 During another telephone call recorded on August 20, 2008, both defendant and D.C. repeatedly said "I love you" to each other. During a telephone call recorded on August 27, 2008, D.C. told defendant that she was "not taking the pill any more" because she did not need it. Defendant asked her what would happen if he was ever released from jail. D.C. said that she would "start taking it again." At the end of the conversation, both defendant and D.C. said "I love you" to each other.
¶ 16 On May 28, 2009, the prosecutor advised the court that S.N. failed to appear in court and dismissed counts III, IV and VI of the bill of indictment. The State rested.
¶ 17 The defense called Judy Morris, who testified that she was the current guardian of D.C., who was now 17 years old. Morris said that T.A. was one of her previous foster children who had lived with Morris during "five years of pure hell." She said that T.A. had to be supervised and that she did not leave T.A. alone. However, she could leave T.A. with her daughter, Cathy, who was a babysitter approved by Catholic Charities. Morris testified that she did not leave T.A. alone with defendant because he was not an approved babysitter.
¶ 18 According to Morris, S.N. also lived with her for a short time beginning in September 2003. When S.N. ran away from her house with T.A. and D.C., the three girls were caught in Georgia "with weed." Morris refused to take S.N. back into her home at that time. Morris explained that she would not protect defendant and that the girls had not made any complaints to her about defendant.
¶ 19 D.C. testified that she was currently 17 years old, born on August 20, 1991. D.C. said that she was placed with Morris in June 2004. While she lived with Morris, D.C. said that T.A. and S.N. also lived with Morris. D.C. said that T.A. never complained about defendant to D.C. but told D.C., during the summer of 2008, that she was going to get Cathy and defendant back sometime.
¶ 20 D.C. testified that defendant had always been appropriate with her and denied she was having a sexual relationship with defendant. She further testified that she and defendant spoke on the telephone while defendant was incarcerated and often told one another that they loved each other. D.C. said that the reference to birth control pills during one telephone ...