Appeal from the Circuit Court of Cook County. No. 07 CR 17765 Honorable Joseph M. Claps, Judge Presiding.
The opinion of the court was delivered by: Justice Cunningham
JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion. Presiding Justice Quinn and Justice Connors concurred in the judgment and opinion.
¶ 1 This appeal arises from a September 21, 2009 judgment entered by the circuit court of Cook County which found the defendant-appellant, Jonathan Jackson (Jackson), guilty of two counts of predatory criminal sexual assault. Jackson was sentenced to 10 years' imprisonment to be served consecutively for each offense. On appeal, Jackson argues that: (1) his conviction for predatory criminal sexual assault on the finger-to-anus count should be reversed because plaintiff-appellee, the People of the State of Illinois (the State), failed to establish the corpus delicti of digital penetration of the anus; (2) the State deprived Jackson of a fair trial due to prosecutorial misconduct in the State's closing argument; and (3) this court should correct Jackson's mittimus to reflect three years' mandatory supervised release as imposed by the trial court where the Illinois Department of Corrections (IDOC) modified the term to "3 years to life--to be determined." For the following reasons, we affirm the judgment of the circuit court of Cook County. We order Jackson's mittimus to be corrected.
¶ 3 Between June 1, 2005 and July 31, 2007, Jackson lived at 10548 S. Maryland Ave., Chicago, Illinois, with his girlfriend Simona Patterson (Simona), Simona's nephews Kentrail Patterson (Kentrail) and Jarrell Patterson (Jarrell), and the victim, Simona's niece, J.P. During this time, Jackson often cared for the children while Simona was at work. Jackson's abuse of J.P. allegedly occurred during 2006 and 2007. At that time, J.P. was eight years old and Jarrell was 11 years old.
¶ 4 Jackson was charged with 10 counts of predatory criminal sexual assault, 16 counts of aggravated criminal sexual assault, and 19 counts of criminal sexual assault for crimes committed against J.P. The State proceeded to trial on five counts of predatory criminal sexual assault of a child, alleging: penis-to-anus contact; mouth-to-anus contact; mouth-to-vagina contact; finger-to-vagina contact; and finger-to-anus contact. Prior to jury deliberations, the State nolle prossed the counts for penis-to-anus contact and mouth-to-vagina contact.
¶ 5 On September 22, 2008, the trial court conducted a hearing pursuant to section 115-10 of the Illinois Code of Criminal Procedure of 1963 (725 ILCS 5/115-10 (West 2008)). At the hearing, Jarrell testified that J.P. approached him in April 2006 and told him about Jackson's abuse. Jarrell remembered that it was April 2006 because the family had just returned from a vacation in Champaign, Illinois. J.P. climbed into Jarrell's bunk bed and woke him up to tell him that Jackson had done something to her. Jarrell testified that J.P. told him that Jackson would stand in the bathroom with her as she bathed, and would "check" her to make sure she was clean. J.P. told Jarrell that after Jackson "checked" her, he blindfolded her and pulled out his penis. Jarrell testified that during the conversation he was still half asleep and he told J.P. that he would talk to Simona about it in the morning. The next morning, Jarrell told Simona about his conversation with J.P. Jarrell testified that he also asked J.P. to tell him what happened to her again in the morning because he was having trouble remembering what she said. J.P. refused because she did not want to talk about it again. In June 2007, Jarrell began to notice that J.P. was sad and was not acting normal. He asked her repeatedly what was wrong but she refused to tell him. Finally, after the fourth time Jarrell approached her, she began to speak about Jackson's abuse. Jarrell testified that every Friday, Jarrell, his siblings, Simona and Jackson would have "family night" where they would play games. Jarrell testified that J.P. told him that one time after family night, she was lying on the couch while wearing a dress and Jackson put his hand under her dress and began feeling her butt. J.P. also told Jarrell that Jackson started "kissing on her" and put his finger inside her "private part."
¶ 6 Alexandra Levi (Alexandra), forensic interview manager for the Chicago Children's Advocacy Center (Child Advocacy Center), testified that she interviewed J.P. on July 6, 2007. After some preliminary questions, Alexandra asked J.P. what happened to her and if she knew why she was there. J.P. started to become hesitant in answering the questions and said that she told the police that something happened to her body. Alexandra testified that J.P. pointed to her butt and said that Jackson had done something to her. J.P. then became very emotional and Alexandra ended the interview.
¶ 7 Assistant State's Attorney Suzanne Sanders (ASA Sanders) testified that she interviewed J.P. at the Child Advocacy Center on July 25, 2007. J.P. told ASA Sanders that Jackson touched her when she was eight or nine years old. J.P. said that Jackson would come into the bathroom while she was bathing and tell her to hurry up and finish. After J.P. was done bathing, Jackson would take her into Simona's bedroom. ASA Sanders testified that J.P. told her that once she was in Simona's bedroom, Jackson would lay her on the bed, put a towel over her face and eyes, and lick her butt "where the poop came out." J.P. also said that Jackson put his finger inside her butt. J.P. told ASA Sanders that Jackson touched her this way many times, and on another occasion Jackson put "his stuff" in her butt. When ASA Sanders asked J.P. what she meant by using the term "stuff," J.P. pointed to her pelvic area and responded "it's here where my girl part is but it's on the boy." J.P. was able to recall that one of the incidents with Jackson occurred right before a family vacation to Champaign, Illinois. ASA Sanders testified that J.P. also told her about an incident with Jackson one night while she was watching a movie. J.P. pointed between her legs and said that Jackson licked her "girl part." J.P. said that Jackson did not touch her in any other way during that specific incident.
¶ 8 The court found that the time, content, and circumstances of the statements and testimonies given by Jarrell and Alexandra during the hearing provided sufficient safeguards of reliability. However, the court found that the statements and testimony given by ASA Sanders did not provide sufficient safeguards of reliability. Therefore, the court admitted the statements from Jarrell and Alexandra, but found that the statement from ASA Sanders was not admissible.
¶ 9 On August 4, 2009, a jury trial for this matter commenced in the circuit court of Cook County. Dr. Jill Glick (Dr. Glick), pediatrician and medical director of the child protection team at the University of Chicago, testified as an expert in the areas of pediatric medicine and child sexual abuse. On July 4, 2007, Dr. Glick conducted an examination of J.P. Dr. Glick testified that J.P. looked dysmorphic, meaning that she had abnormal-looking facial features. J. P.'s eyes were wide set, her head was abnormally shaped, she was very thin, and she was communicating at a six-year-old level despite being nine years old at the time of the examination. Because of these factors, Dr. Glick was concerned that J.P. was developmentally delayed.
¶ 10 Dr. Glick also performed a gynecological exam of J.P. and found that there was an absence of hymenal tissue. Dr. Glick testified that she reviewed J.P.'s medical history and stated that J.P. still should have had a hymen at that age. The lack of hymenal tissue indicated to Dr. Glick that J.P. had experienced trauma or sexual abuse. During the gynecological exam, J.P. was extremely cooperative and comfortable, and was able to color in her coloring book. Dr. Glick stated that this behavior was extremely concerning from a behavioral neuro developmental standpoint because J.P. did not exhibit any resistance to the examination. Dr. Glick testified that in her expert opinion, J.P.'s vagina had been penetrated by an object. She stated that the object could have been a penis or finger, among other things.
¶ 11 Dr. Glick also found that J.P. had an anal fissure, which was described as an abrasion or scratch. Dr. Glick stated that the anal fissure was "nonspecific," meaning that it was not necessarily caused by abuse. She was unable to determine the date the fissure developed and stated that it could be caused by numerous common activities, including defecation. Dr. Glick testified that based on her entire examination, she could conclude with a reasonable degree of medical certainty that J.P. was sexually abused.
¶ 12 Assistant State's Attorney Martha Kross (ASA Kross) testified that on August 3, 2007, she interviewed Jackson at the Area 2 police station at 727 East 111th Street, Chicago, Illinois. ASA Kross received a page just before midnight, and once she arrived at the police station, she learned that Jackson was in custody for predatory criminal sexual assault. ASA Kross read Jackson his Miranda rights and Jackson agreed to talk to her. Jackson told ASA Kross that he had been living with J.P. for three years, and in 2006 he began to stand in the door of the bathroom when she would take a shower. He told ASA Kross that he would then take J.P. into the bedroom, swipe her vagina and buttocks with his fingers, and then smell his fingers to see if she was clean. ASA Kross testified that initially Jackson told her that he did this to J.P. only once. However, later in the conversation, Jackson admitted doing this 10 times, and by the end of the conversation he admitted to doing it every time she took a shower. Jackson also initially said that he only inserted his fingers into J.P.'s anus and not her vagina, but later said he inserted his fingers into both J.P.'s anus and vagina. ASA Kross testified that Jackson never admitted to licking or putting his mouth on J.P.'s anus or vagina. Jackson also denied inserting his penis into any part of J.P.'s body. Jackson said that he told Simona about what he was doing to J.P. and that she was present on at least one occasion. Jackson denied touching the boys in the same manner he touched J.P. Jackson stated that he was willing to receive counseling for his behavior, but refused to give a handwritten statement memorializing the conversation with ASA Kross. ASA Kross did not take notes while she was speaking to Jackson, but wrote down a summary of their conversation immediately after the interview. ASA Kross noted no intellectual deficit by Jackson and that Jackson was sober during the interview.
¶ 13 At the time of trial, J.P. was 11 years old and testified that she remembered living with Jackson, Simona, Kentrail and Jarrell at 10548 S. Maryland Ave., Chicago, Illinois. J.P. testified that there were things about Jackson that she liked, but also things about Jackson that she did not like. She stated that Jackson was funny when he would put her on top of the refrigerator, but he also beat the children with an extension cord. J.P. testified that one time after "family night," she was sleeping in the dining room. She woke up when she felt Jackson touch her butt from behind using his tongue. J.P. testified that Jackson used his tongue to touch the "poo part" of her butt "where the poo comes out." J.P. testified that Jackson touched her other times while her brothers were in the room and while her mother was at work.
¶ 14 J.P. also testified that Jackson came in the bathroom while she was taking a bath. She said that after she got out of the tub, Jackson touched her "poo part" with his tongue. She said that he never touched her "poo part" with his finger. J.P. testified that Jackson would take her into Simona's room, lay her on the bed, put a towel over her face, and touch her "poo part" with his tongue. She stated that at the same time, Jackson would touch her front private part but she could not remember what part of Jackson's body he used to touch it. J.P. testified that she told Jarrell what Jackson had done to her, but she could not remember the date or what grade she was in when she spoke to Jarrell. J.P. said that Jackson would touch her every time Simona went to work, and that it happened more than two times. J.P. testified that she never felt anything go into her "poo part" or her front private part, but that it hurt when Jackson would touch her. She said that she could not remember how old she was or what grade she was in during family night.
¶ 15 Jarrell testified that in 2006, he lived with Jackson, Simona, Kentrail and J.P. at 10548 S. Maryland Ave., Chicago, Illinois. Jarrell said that on Friday nights, everyone would gather for family night where they would watch movies and play games. Simona was not always able to attend due to her work schedule. Jarrell said that Simona worked four days out of the week from 3 p.m. to 11 p.m. Jarrell testified that one night after family night, Jasmine fell asleep on the couch. Jarrell also fell asleep and woke up to go to his bedroom. Jarrell said that there was a hole in his bedroom wall where an internet cord was fed from his bedroom to the next room. Jarrell could see J.P. asleep on the couch through the hole. Jarrell testified that he could see Jackson sitting on the couch close to J.P.'s thighs with his hands by J.P.'s butt. Jarrell waited for a while and then went in the room to check on J.P. He then saw Jackson sitting close to J.P.'s feet. Jarrell stated that he had been interviewed many times about the incidents between J.P. and Jackson, but that day at trial was the only day where he mentioned the hole in his bedroom wall.
¶ 16 Jarrell testified that in 2006, the family went to Champaign to visit Jackson's mom. One night after they returned from Champaign, J.P. woke up Jarrell to talk to him about Jackson.
The next day, Jarrell asked J.P. to tell him what happened again because he could not remember what she said. Jarrell testified that J.P. said that Jackson blindfolded her with a purple towel and pulled out his penis. Jarrell stated that he noticed that Jackson would go in the bathroom while J.P. was taking a shower, but that Jackson was not acting weird. Jarrell testified that in 2007 he noticed that J.P. was sad and was acting unusual, so he asked her what was wrong. She said nothing was wrong but Jarrell asked her again. J.P. said that Jackson "did it again." Jarrell stated that he told Simona what J.P. told him.
¶ 17 Jarrell testified that J.P. never described what Jackson did to her; however, he was reminded of his testimony at a prior hearing. Jarrell then remembered that in the hearing he said that J.P. told him that Jackson felt her butt and private part. The State asked Jarrell why he said that J.P. never told him about Jackson touching her and he responded "she did tell me." Jarrell testified that he did not remember saying that Jackson put his finger in J.P.'s private part during the prior hearing. Jarrell testified that ...