Rehearing denied November 5, 2013.
Defendant’s convictions for three counts of aggravated criminal sexual abuse were upheld over his contentions that his right to be present during a “critical stage” of his trial was violated when the recordings of the victims’ interviews were reviewed by the trial court outside defendant’s presence and that his motion to suppress his confession was improperly denied because he invoked his right to counsel, since the court’s review of the recordings was not a critical stage of defendant’s trial, defendant was present at all critical stages, defense counsel waived any objection to the court’s review of the recordings, and the record supported the trial court’s findings that the statements defendant made at the time of his confession were merely musings about what would happen if he asked for an attorney and that he did waive his right to counsel rather than invoke that right.
Appeal from the Circuit Court of Livingston County, No. 10-CF-135; the Hon. Jennifer H. Bauknecht, Judge, presiding.
Michael J. Pelletier, Karen Munoz, and Duane E. Schuster, all of State Appellate Defender's Office, of Springfield, for appellant.
Seth Uphoff, State's Attorney, of Pontiac (Patrick Delfino, Robert J. Biderman, and Luke McNeill, all of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
Panel PRESIDING JUSTICE STEIGMANN delivered the judgment of the court, with opinion. Justices Pope and Holder White concurred in the judgment and opinion.
STEIGMANN, PRESIDING JUSTICE.
¶ 1 Following a November 2011 bench trial, the trial court convicted defendant, Michael S. Young, on three counts of aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(1)(i) (West 2010)). The court found that during three separate incidents, defendant caused two minor girls to rub their hands on his penis for the purpose of defendant's sexual gratification. For that conduct, the court sentenced defendant to eight years in prison.
¶ 2 Defendant appeals, arguing that the trial court (1) violated his constitutional right to be present during the critical stages of his trial when the court considered digital video disc (DVD) recordings of the victims' interviews outside of his presence and (2) erred by denying his motion to suppress his confession, given that he invoked his right to counsel. Because the record shows that defendant (1) was present at all critical stages of his trial and (2) waived his right to counsel, we affirm.
¶ 3 I. BACKGROUND
¶ 4 A. The State's Charges
¶ 5 In June 2010, the State charged defendant with three counts of aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(1)(i) (West 2010)). The State alleged that defendant–who was 30 years old at the time–(1) caused a seven-year-old girl to rub his penis for defendant's sexual gratification and (2) caused a nine-year-old girl to rub his penis on two separate occasions for defendant's sexual gratification.
¶ 6 B. The State's Section 115-10 Motion and the Subsequent Hearing
¶ 7 Defendant's case proceeded to an October 13, 2010, hearing on the State's motion to admit the child victims' out-of-court statements under section 115-10 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-10 (West 2010) (permitting hearsay statements of a child victim under the age of 13 as substantive evidence in, among others, cases involving sex crimes)). Defendant was present at that hearing, and the State presented testimony from the children's mother and two other witnesses about the out-of-court statements. The State also submitted as exhibits (1) the DVD interviews of the children and (2) a written transcript of the content of the DVDs. Shortly thereafter, the State suggested that, due to time constraints, the court review the DVDs at its leisure. Turning to defense counsel, the court asked whether counsel wanted to "view the[ ] DVDs in open court or [whether] there [was] an objection if [the court] view[ed] them and [came] back for a ruling?" Defense counsel responded, as follows:
"Your Honor, I would just like the opportunity to argue. [I]t does not matter when the Court reviews them. I'm not asking that they are reviewed right now. I just would like an opportunity to argue, and I can ...