Modified Upon Denial of Rehearing January 16, 2014
Appeal from the Circuit Court of the 14th Judicial Circuit, Henry County, Illinois, 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 original 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 (supervisory order)). In order to assist this court in complying with the supreme court's instructions, we issued a minute order requesting that the parties rebrief the issues "in light of People v. Lara." People v. Hurry, No. 3-10-0150 (May 22, 2013). Importantly, neither our order nor the supreme court's order requested that the parties rebrief the entire case by adding or deleting issues. See McDunn v. Williams, 156 Ill.2d 288 (1993) (the supreme court's supervisory authority is directed at the courts below). Both parties filed briefs. Defendant's brief modified the issues and raised new arguments unrelated to Lara. On September 12, 2013, this court issued an opinion that reconsidered the case in light of Lara but did not address defendant's new or modified arguments unrelated to Lara.
¶ 2 Defendant subsequently filed a petition for rehearing, asking this court to consider his new arguments unrelated to Lara. Due to the nature of the supreme court's supervisory order, we lack authority to do so. The order issued by the supreme court simply directed this court to reconsider its decision in light of Lara. We cannot proceed beyond its mandate. Therefore, we deny defendant's petition for rehearing. What follows is our opinion from September 12, 2013.
¶ 3 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.
¶ 4 FACTS
¶ 5 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 placed 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.
¶ 6 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.
¶ 7 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.
¶ 8 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.
¶ 9 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. ...