Appeal from the Circuit Court of Cook County No. 09 CR 888 The Honorable Kenneth J. Wadas, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Harris
PRESIDING JUSTICE HARRIS delivered the judgment of the court, with opinion. Justices Quinn and Simon concurred in the judgment and opinion.
¶ 1 Defendant, Carlos Orengo, appeals the circuit court's determination that he is "not not guilty" on 31 counts of criminal sexual misconduct after a discharge hearing pursuant to section 104-25 of the Code of Criminal Procedure of 1963 (the Code) (725 ILCS 5/104-25 (West 2008)). On appeal, Orengo contends (1) the trial court erred in admitting outcry statements made by the three-year-old alleged victim, M.M., under section 115-10 of the Code (725 ILCS 5/115-10 (West 2008)) because that section does not apply to discharge hearings; and (2) without those statements, the evidence does not prove beyond a reasonable doubt that he committed the alleged acts. For the following reasons, we affirm.
¶ 3 The trial court entered its finding of "not not guilty" on February 18, 2012, and a motion to reconsider was denied on March 30, 2012. Orengo filed a notice of appeal on April 7, 2011. Accordingly, this court has jurisdiction pursuant to Illinois Supreme Court Rules 301 and 303 governing appeals from final judgments entered below. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. May 30, 2008).*fn1
¶ 5 Orengo was charged with 31 counts of predatory criminal sexual assault, criminal sexual assault, aggravated criminal sexual abuse and criminal sexual abuse. Dr. Fidel Echevarria, a psychiatrist from the forensic clinical services department, subsequently found Orengo unfit to stand trial due to cognitive and memory impairments. The trial court held a second fitness hearing in which Orengo was again found unfit to stand trial. Dr. Echevarria stated that Orengo suffered from "irreversible dementia which was the result of chronic alcohol use" and would not regain fitness in any reasonable period. The State sought a discharge hearing pursuant to section 104-25 of the Code.
¶ 6 In anticipation of the discharge hearing, the State moved for a hearing under section 115-10 to allow statements allegedly made by M.M. to Melissa Malave and Carey Kato at the time of the incident. The trial court conducted the section 115-10 hearings on March 10 and 26 of 2010. The court found both witnesses credible, and the evidence showed that "the child was not in any way coerced or suggested to her [sic] what to say or who to accuse." It granted the State's motion and allowed the witnesses to testify at the discharge hearing about the statements M.M. made to them.
¶ 7 Orengo filed a motion to suppress his statements, and the trial court conducted a hearing on May 18, 2010. Detective Jose Casteneda testified that he advised Orengo of his Miranda rights in English and Spanish, and Orengo acknowledged his rights and waived them. He further stated that Orengo appeared coherent and he found nothing unusual in Orengo's physical or mental condition. Orengo subsequently implicated himself in a statement to Detective Casteneda. Orengo also agreed to speak with Assistant State's Attorney (ASA) Elizabeth Ciaccia. ASA Ciaccia testified that she gave Orengo his Miranda rights and he was cooperative and appeared healthy. Orengo implicated himself in a handwritten statement.
¶ 8 For the defense, Dr. Echevarria testified that he reviewed psychiatric reports dated July 7, 2007, which was about a month after Orengo's arrest. The reports stated that Orengo was acting inappropriately and incoherently and suffered from memory deficits consistent with dementia. Dr. Echevarria also relied on an evaluation from July 2008. He acknowledged that he did not interview Detective Casteneda or ASA Ciaccia, both of whom spoke with Orengo on the night of his arrest.
¶ 9 The trial court denied Orengo's motion, finding that on the night of his arrest Orengo understood his Miranda rights. It also found Detective Casteneda and ASA Ciaccia "highly credible" witnesses and noted that Dr. Echevarria should have interviewed them since they were present on the night Orengo gave his statements.
¶ 10 The trial court held the discharge hearing on December 9, 2010. M.M. testified that at the time of the hearing she was nine years old and in fourth grade. When she was three, her grandmother, Carmen M., sometimes babysat her and Orengo would be at Carmen's house.
M.M. stated that one time when she was at Carmen's, she was alone with Orengo. She was watching cartoons in the living room. Orengo pointed at his "private area" and M.M. said "no." Orengo then took M.M. into the bedroom and put her on the bed. He tried to pull down her clothes and M.M. tried to hold them up. Orengo did not take off his underwear but he started to "hump" her by going side to side with his "private." M.M. stated that his "private" touched her underwear. M.M. heard footsteps and Orengo told her to pull up her pants. Orengo started to pull up his pants and then M.M. saw her grandmother. She did not remember if she said anything to her. M.M. also remembered that Melissa Malave came to pick her up and they went to the hospital. M.M. admitted that she did not remember going to the hospital or speaking to police. She also acknowledged that when she was six years old she told the police that she did not remember Orengo. She stated that she has not spoken with Melissa about the incident since the day it happened.
¶ 11 Carmen M. testified that M.M. was the daughter of her son, Domingo. In August 2004, M.M. was three years old. On August 21, 2004, Domingo's girlfriend, Melissa Malave, dropped M.M. off at Carmen's apartment so she could baby-sit while they worked. At the time, Carmen was seeing Orengo and he lived with her in the apartment. She had never had any problems with him prior to that day. After giving M.M. a bath, Carmen left the apartment for 10 to 15 minutes to buy some juice. M.M. was with Orengo watching cartoons in the living room. When Carmen returned from the store, she called out to M.M. and Orengo but received no response. She went to the bedroom and found Orengo with his underwear down to his knees. Carmen also saw M.M. with her pants and underwear around her ankles. Orengo started pulling up his underwear and Carmen asked him "what's going on here." She then slapped him and kicked him out of the apartment. Carmen checked M.M. and found red marks around her private area.
¶ 12 Carmen did not call the police right away because she did not know what to do. When Melissa returned that evening she told her what happened and Melissa called the police. Carmen stated that M.M. called her vagina either "tooty" or "chi-chi." She acknowledged ...