Appeal from the Circuit Court of the 14th Judicial Circuit, Henry County, Illinois, Appeal No. 3-10-0150 Circuit No. 09-CF-124 Honorable Ted J. Hamer, Judge, Presiding.
JUSTICE McDADE delivered the judgment of the court, with opinion. Justices Carter and O'Brien concurred in the judgment and opinion.
¶ 1 Following the filing of our opinion in this cause, the supreme court issued a supervisory order directing this court to vacate its judgment and reconsider the case in light of its decision in People v. Lara, 2012 IL 112370. See People v. Hurry, No. 114348 (Mar. 27, 2013 (Order). The following is a new opinion issued in compliance with the court's instructions.
¶ 2 Defendant, Scott D. Hurry, was charged with 10 counts of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2006)). Following a bench trial, the circuit court of Henry County found defendant guilty of all charges. He was sentenced to consecutive terms of imprisonment totaling 108 years. Defendant appeals his convictions, arguing that the State failed to prove the corpus delicti of 8 of the 10 charges. We affirm defendant's convictions on counts I, II, and III; reduce his convictions on counts IV and V from predatory criminal sexual assault to aggravated criminal sexual abuse (720 ILCS 5/12-16 (West 2006)); reverse his convictions on counts VI through X; and remand the case for resentencing on counts IV and V.
¶ 3 FACTS
¶ 4 On April 7, 2009, defendant was charged with 10 counts of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2006)). Count I alleged that defendant placed his finger in the vagina of R.J.S., count II alleged that defendant place his penis in the vagina of R.J.S., and counts III through X alleged that defendant placed his penis in the mouth of R.J.S. The cause proceeded to a bench trial.
¶ 5 At trial, R.J.S. testified that she was nine years old. She stated that defendant touched her vagina on more than one occasion. One such incident occurred when R.J.S. was home alone with defendant and her brother. Defendant and R.J.S. went into her mother's bedroom, where defendant threatened to kill her mother if she did not do what he asked. R.J.S. complied, and defendant's hand touched the outside of her vagina. Defendant also made R.J.S. touch his penis with her hands and her mouth. R.J.S. testified that something like that had happened before.
¶ 6 On another occasion defendant placed his penis in R.J.S.'s vagina. Another incident occurred in R.J.S.'s bedroom, where defendant made R.J.S. touch his penis with her hands. Again, defendant threatened R.J.S. by telling her that he would hurt her mother if she did not comply. R.J.S. stated that defendant made her touch his penis with her hands on yet another occasion when they were riding "three-wheelers" by a bridge.
¶ 7 Officers Dyan Morrisey and Daniel Wisdom testified to a conversation they had with defendant. According to the officers, defendant admitted to the allegations contained in the 10 counts against him. Defendant stated that on one occasion when R.J.S.'s mother was at the grocery store and her brother was playing video games, he told R.J.S. to go into her mother's bedroom and get undressed. He went into the room, removed all of his clothing except for his boxers and penetrated R.J.S.'s vagina with his finger. He then attempted to penetrate her with his penis; however, she said "Ow, " so he stopped. Defendant then made R.J.S. perform oral sex on him by placing his penis in her mouth.
¶ 8 Defendant also confessed to other incidents of sexual contact. He stated that he made R.J.S. perform oral sex on him when they were riding three-wheelers and once when they were traveling to his mother's house in Missouri. Defendant claimed that he had R.J.S. perform oral sex on him a couple times a week for three to four weeks.
¶ 9 The trial court found defendant guilty on all counts. Defendant appeals.
¶ 10 ANALYSIS
¶ 11 Defendant argues that the State failed to prove the corpus delicti of 8 of the 10 charges of predatory criminal sexual assault of a child. Defendant's contention is a challenge to the sufficiency of the evidence. People v. Sargent, 239 Ill.2d 166 (2010). When presented with a challenge to the sufficiency of the evidence, it is not the function of this court to retry defendant; rather, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational ...