Defendant’s conviction and sentences for three counts of predatory criminal sexual assault of a child were upheld, but the fine imposed pursuant to section 5-9-1.15 of the Unified Code of Corrections was vacated on the ground that the charged offenses occurred prior to the date the statute went into effect.
Appeal from the Circuit Court of Kankakee County, No. 08-CF-591; the Hon. Kathy Bradshaw-Elliott, Judge, presiding.
Jay Wiegman, of State Appellate Defender's Office, of Ottawa, for Appeal appellant.
John J. Boyd, State's Attorney, of Kankakee (Terry A. Mertel and Thomas D. Arado, both of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
Panel JUSTICE CARTER delivered the judgment of the court, with opinion. Justice Holdridge specially concurred, with opinion. Justice Schmidt specially concurred, with opinion.
¶ 1 After a jury trial, the defendant, Christopher A. Ruback, was found guilty of three counts of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2008)). The defendant was sentenced to three consecutive terms of 12 years' imprisonment and was ordered to pay a $500 fine. On appeal, the defendant argues that the trial court erred by: (1) barring admission of the first part of Amanda Ruback's statement to the police; and (2) imposing a $500 fine where the statute authorizing the fine did not go into effect until after he committed the offense. We vacate the $500 fine and, while we disagree on the analysis, we affirm the remainder of the circuit court's judgment.
¶ 2 FACTS
¶ 3 On September 19, 2008, the defendant was charged by indictment with three counts of predatory criminal sexual assault of a child. 720 ILCS 5/12-14.1(a)(1) (West 2008). The case proceeded to a jury trial. The State began by calling Mary H. to testify. Mary H. testified that she was the victim's older sister, and since July 2008, the victim had lived with her. Before the victim moved into her house, the victim lived with the defendant and his wife, Amanda.
¶ 4 Approximately two weeks after the victim moved in, Mary H. was poking fun at her because she had to take a sex education class. The victim responded that the defendant and Amanda had already taught her about sex. The defendant and Amanda purportedly used a game called "Stripopoly, " to teach the victim about sex. While playing the game, the victim drew a card that directed her to give a "blow job to the male on her right." The victim indicated to Mary H. that she performed the act. Thereafter, the defendant drew a card that instructed him to "eat out the woman to his right." The victim watched as the defendant performed oral sex on Amanda.
¶ 5 On another occasion, the defendant had sexual intercourse with the victim while Amanda rubbed her shoulders, and encouraged her to relax. The victim also reported that the defendant kept her home from school and made her watch adult movies and practice masturbation. At the end of the conversation, Mary H. filed a police report.
¶ 6 The victim testified that in the fall of 2007, she lived with the defendant and Amanda, and she was in the sixth grade. During October or November 2007, the victim's teacher sent a notice home that she would be attending a sex education class. Amanda told the victim that she and the defendant did not want "some quote crack teacher teaching [the victim] this." Amanda asked the victim if it was all right if she and the defendant taught her about sex. The victim agreed.
¶ 7 One night, the defendant woke the victim and brought her downstairs where the game "Stripopoly" was set up. The defendant and Amanda explained that the game was like Monopoly, but if you went to jail you had to remove an article of clothing, and instead of community chest cards, the player picked up a card with an instruction to perform a sex act on the person to their right or left. After several rounds, the victim was left wearing only her t-shirt and bra, and she picked up a card that instructed her to give the defendant a "blow job." The victim was unfamiliar with the sex act, and Amanda demonstrated on the defendant. Amanda then directed the victim to perform oral sex on the defendant. The victim did as she was instructed.
¶ 8 On other occasions, the defendant or Amanda woke the victim and took her to their bedroom to watch pornographic movies. While one of the movies was playing, the defendant and Amanda asked the victim if she knew how to "eat out a girl." The defendant demonstrated by performing oral sex on Amanda. Afterwards, he instructed the victim to perform oral sex on Amanda. On a different occasion, the defendant and Amanda performed oral sex on the victim. The defendant also made the victim perform oral sex on him.
¶ 9 During the fall of 2007, Amanda kept the victim home from school on several days. After the victim's brother and niece left for school, the defendant and Amanda called her into their bedroom. On three or four of these days, the defendant attempted to have vaginal intercourse with the victim. The defendant began by performing oral sex on the victim, and then he tried to insert his penis inside the victim's vagina. During several of the defendant's attempted penetrations, the victim complained of a sharp pain, and the defendant stopped. However, the defendant once placed the tip of his penis inside of the victim's vagina while the victim lay in Amanda's lap, and Amanda rubbed the victim's shoulders to relax her.
¶ 10 The victim stated that she was afraid to tell the defendant not to perform the sexual acts because she did not want to get yelled at. The incidents stopped in December 2007.
¶ 11 Next, the State called Amanda to testify. Amanda testified that she was the defendant's wife and the victim was her half-sister. Amanda acquired custody of the victim when she was four years old. However, the victim left her home in February 2008, after the defendant was arrested on an unrelated charge. Additionally, Amanda pled guilty to two counts of predatory criminal sexual assault of a child on February 1, 2010, and received a sentence of 12 years' imprisonment. The charge involved sexual misconduct with the victim in this case.
¶ 12 Amanda stated that the topic of sex was never discussed between the defendant and the victim. Amanda denied observing the defendant have sex with the victim, and she stated that she did not perform sex acts on the victim. In response, the State introduced Amanda's prior inconsistent statement from her plea agreement hearing. At the plea, Amanda admitted that she awoke the victim at night and kept her home from school so that she and the defendant could engage in sexual acts with the victim. Amanda demonstrated sex acts for the victim and then instructed the victim to perform the acts on the defendant. Amanda observed the defendant attempt to have sexual intercourse with the victim while she rubbed the victim's back and told her it was all right.
¶ 13 The State also introduced Amanda's prior inconsistent statement from her August 28, 2008, police interview. Amanda testified that she did not remember the questions that the detectives had asked her, but she remembered that the interview was the first time she learned of the allegations against the defendant. Amanda eventually admitted that she had told the detectives that she walked in on the defendant while he and the victim were performing oral sex on each other. However, she noted that this occurred "after a half an hour of them telling me what was going on and what [the victim] was saying." She agreed that she told the detectives the victim was forced to perform oral sex on her and the defendant. At the conclusion of the State's examination, Amanda stated that she told the detectives that she intended to leave the defendant, but she did not follow through with the divorce. Amanda last communicated with the defendant, via letter, one month before trial.
¶ 14 During cross-examination, Amanda stated that during the police interview, the first time she was asked if she had engaged in sexual misconduct with the victim, she denied doing so. The State objected on grounds that the testimony was inadmissible as a prior consistent statement. Defense counsel argued that Amanda's prior consistent statement was admissible to rebut the State's charge that Amanda was motivated to lie. Defense counsel noted that the State had impeached its own witness, implying that Amanda was motivated to lie. The trial court reasoned that Amanda's testimony pertaining to her recent correspondence with the defendant implied that she had a motive to lie. The trial court initially allowed the testimony to rebut a charge of recent fabrication and allowed the defendant some leeway on the issue because it was not "real clear based on the two exceptions." The trial court further required that defense counsel ask specific questions about Amanda's denials from the beginning of the police interview. The court allowed defense counsel to review Amanda's video-recorded interview before the trial resumed the following morning.
¶ 15 The next morning, defense counsel continued cross-examination. As defense counsel inquired about the first part of Amanda's police interview, the State objected. The State argued that Amanda's police interview constituted one statement and it had already been admitted as a prior inconsistent statement. As a result, Amanda's denials from the beginning of the interview were inadmissible under the prior consistent statement rule. Following an offer of proof, the trial court agreed with the State that Amanda's police interview was one statement and it could not be split into two parts. The court concluded that Amanda's denials were inadmissible prior consistent statements. However, it allowed defense counsel to ask Amanda if the detectives had given her the information regarding the specific sex acts. Thereafter, Amanda testified that the detectives told her during the interview that the victim had implicated her and the defendant in sexual misconduct.
¶ 16 During cross-examination by defense counsel, Amanda testified that she entered into the plea agreement because she was told that "it would be the best thing for [her]" and if she went to trial, she would "get the maximum sentence." Amanda maintained that she did not engage in sexual misconduct with the victim and she did not observe the defendant having sexual relations with the victim.
¶ 17 Following Amanda's testimony, the State called Detective Robert Gray to testify. Gray stated that he conducted a video-recorded interview with Amanda on August 28, 2008. During the interview, Amanda indicated that she saw the defendant perform oral sex on the victim, and she also observed the defendant performing oral sex on the victim while the victim performed oral sex on the defendant. At the end of Gray's testimony, the State played a video recording that contained several clips from Amanda's interview. In the recording, Amanda admitted that she observed the defendant perform various sex acts on the victim.
¶ 18 The defendant testified that he treated the victim as his own child, but he was not involved in her school work and school activities because he worked 60 hours a week. In the spring of 2007 he started using cocaine and he was arrested for illegal possession of drugs on February 7, 2008. The defendant later pled guilty to the offense. The defendant testified that he suffered from impotency as a result of his cocaine use. The defendant denied playing "Sexopoly" with the victim or engaging in acts of oral sex or sexual intercourse with the victim.
¶ 19 After closing arguments, the jury found the defendant guilty of three counts of predatory criminal sexual assault of a child. The trial court sentenced the defendant to three consecutive 12-year terms of imprisonment and imposed a $500 fine under section 5-9-1.15 of the Unified Code of ...