Court of Appeal of Illinois, First District, Third Division
Rehearing Denied Dec. 10, 2013.
[Copyrighted Material Omitted]
Michael J. Pelletier and Michael H. Orenstein, both of State Appellate Defender's Office, of Chicago, for appellant.
Anita M. Alvarez, State's Attorney, of Chicago (Yvette Loizon and Koula Fournier, Assistant State's Attorneys, of counsel), for the People.
[377 Ill.Dec. 100] ¶ 1 A jury convicted defendant Attim Gilliam of two counts each of predatory criminal sexual assault and aggravated criminal sexual abuse against his stepdaughters, Beonca W. and Brianna W. Gilliam was sentenced to two natural life sentences for the predatory criminal sexual assaults and two sentences of seven years for the aggravated criminal sexual abuse. Gilliam contends that (i) the manner in which the jury was instructed amounted to plain error where he could have been convicted of criminal acts that occurred outside of Illinois and (ii) the trial court failed to comply with Illinois Supreme Court Rule 431(b) (eff. May 1, 2007) in admonishing potential jurors on key legal principles. We affirm.
¶ 2 Viewing all the evidence in the light most favorable to the State, we find the essential elements of the crimes, including jurisdiction in Illinois, were proven beyond a reasonable doubt, even though there was some evidence that similar acts of sexual abuse occurred while the defendant and the girls lived in Indiana. Accordingly, we find no error in the jury instructions. Moreover, we find the trial court complied with Rule 431(b) when it used the " specific question and response process" the rule requires and asked the potential jurors whether they understood and accepted the principles set out in the rule.
¶ 3 Gilliam also argues, and the State agrees, that he was assessed duplicate fees for DNA testing and State's Attorney's trial fees. We vacate the duplicate fees assessed against him.
¶ 4 BACKGROUND
¶ 5 In 1996, Gilliam lived with his mother in an apartment located on Monroe Street, in Chicago. Gilliam began dating a woman named Tenise, who lived in the apartment building next door. At the time, Tenise had two daughters, two-year-old Beonca and four-month-old Brianna. Gilliam and Tenise eventually married and had three children together. Gilliam and Tenise moved several times, including from Chicago to Indianapolis and then back to Chicago. The couple divorced in 2004.
¶ 6 In 2007, Beonca told an aunt that Gilliam had engaged in sexual acts with her involving his penis, mouth, and foot. In 2008, Brianna reported similar sexual abuse to an aunt. Following a police investigation of Beonca's and Brianna's allegations, on January 16, 2009, Gilliam was arrested. The next day, Gilliam provided separate written statements regarding each girl to an assistant State's Attorney (ASA).
¶ 7 In his statement regarding Beonca, Gilliam stated that in 1996, he lived with his mother in an apartment on Monroe Street, in Chicago. Gilliam began dating Tenise, who had two daughters, Beonca, two years old, and Brianna, an infant. In 1998, Tenise, Beonca, and Brianna moved in with Gilliam and his mother. In 2000 or 2001, Gilliam moved with Tenise, Beonca, and Brianna into their own apartment on
[377 Ill.Dec. 101] 76th Place. After about four to six months, they moved to Indianapolis. Gilliam and Tenise got married and had three girls of their own together. They all lived in Indianapolis for about two years before returning to Chicago for good in 2003. When they moved back to Chicago, Gilliam, Tenise, and all five children moved into Gilliam's mother's apartment on Monroe Street, and soon his relationship with Tenise started to break up.
¶ 8 Gilliam stated that two or three times while he living on 76th Place, Beonca " started grabbing on him," " coming on to him," and " grabbing his private part, his penis, on the outside of his shorts." Gilliam stated that Beonca, who was about seven years old, would instigate these incidents.
¶ 9 After they moved to Indianapolis in 2001, Gilliam described an incident in which seven-year-old Beonca instigated " touchy-feely" contact and " was coming on to [him]" by " grabbing his penis and being affectionate." On this occasion, his penis came out of the vent of his boxer shorts, and Beonca grabbed his bare penis. Gilliam stated that there was another incident in Indianapolis in which he and Beonca were on his bed. Gilliam stated that Beonca rubbed his penis with her feet on the outside of his boxer shorts and he rubbed Beonca's vagina on the outside of her underwear with his feet.
¶ 10 When they moved back to his mother's apartment on Monroe Street, there was an incident of " playing footsies" with Beonca. At the time, Beonca was about eight or nine years old and, according to Gilliam, instigated the incident. Brianna, who was six or seven years old, was also involved in this incident. Gilliam was on his bed watching television with Beonca and Brianna. Both girls rubbed his penis with their feet and he rubbed both girls' vaginas with his feet. The girls had their underwear on and he went back and forth from one girl to the other, rubbing both of their vaginas. His penis came out of the front vent of his boxer shorts and the girls rubbed his bare penis with their feet. The contact was skin-to-skin. Gilliam stated that he was aroused from this incident and had an erection while the girls were rubbing his penis with their feet. Gilliam stated that this was the last incident of a sexual nature between him and either Beonca or Brianna.
¶ 11 Gilliam stated that Beonca was always the one that instigated the incidents. He and Tenise caught Beonca and Brianna playing with each other in a sexual manner on a few occasions. Gilliam stated that Beonca taught Brianna about sex and made Brianna more " curious" and " aggressive" about sex. Gilliam stated that he never penetrated Beonca, never put his penis inside of her vagina, never put his mouth on her vagina, and never ejaculated on or in front of Beonca. Gilliam explained that he should have been the " bigger man" about it and resisted Beonca when she was " coming on to him" because she was so young. Gilliam knew what he was doing was wrong and would tell the girls not to tell anybody because he could get in " big trouble." Gilliam stated that he was sorry for what he did, and that he never forced himself on the girls or used strength in any way. He always asked the girls if they were alright with what was going on, if they wanted to do it, and if they felt good about it. Gilliam wanted to make sure the girls were enjoying it and were not uncomfortable in any way. Gilliam knew he should not have done what he did, and hoped that he did not hurt the girls. Gilliam stated that he was treated well by police and the ASA, and provided the statement freely and voluntarily.
¶ 12 In his statement regarding Brianna, Gilliam stated that on one occasion while
[377 Ill.Dec. 102] they were living on 76th Place, Gilliam was home alone with the girls while Tenise was at work. Brianna, who was five years old at the time, started getting " flirtatious" with him. Brianna grabbed his penis while they were in the hallway. Gilliam stated that he was " shocked" by Brianna's behavior and knew that Beonca must have been influencing her. He became aroused and took Brianna into the bathroom, where he pulled down both his and Brianna's pants and underwear, and rubbed his bare penis against the outside of Brianna's bare vagina without penetration. He asked Brianna if she was " ok," and she replied " yes." He told Brianna not to tell anybody about what happened because he could get in a lot of trouble, and told her to leave the bathroom. He then masturbated until he ejaculated. Gilliam stated that while they were living in Indianapolis, a similar incident occurred where he rubbed his bare penis on Brianna's vagina.
¶ 13 Gilliam stated that when they moved back to Chicago from Indianapolis, he, Tenise, and the five children moved into his mother's apartment on Monroe Street. Gilliam again described the incident of " playing footsies" with Beonca and Brianna. As in other statement, Gilliam maintained that this was the last incident of a sexual nature between him and either Beonca or Brianna.
¶ 14 Similar to his earlier statement, Gilliam asserted that Brianna and Beonca were always the ones that instigated the incidents. Gilliam stated that he never penetrated Brianna, never put his mouth on her vagina, and never ejaculated on or in front of her. Gilliam also expressed remorse for what he did to the girls. Gilliam stated that he was treated well by police and the ASA, and provided the statement freely and voluntarily.
¶ 15 Before trial, Gilliam filed a motion to suppress both statements. The trial court denied his motion. The trial court granted Gilliam's motion to join Beonca's and Brianna's cases, and the matter proceeded to trial. With respect to Beonca, Gilliam was charged with 6 counts of predatory criminal sexual assault, 12 counts of criminal sexual assault, 8 counts of aggravated criminal sexual abuse and 8 counts of criminal sexual abuse. With respect to Brianna, Gilliam was charged with two counts of predatory criminal sexual assault, three counts of criminal sexual assault, four counts of aggravated criminal sexual abuse and four counts of criminal sexual abuse. The State proceeded on the counts of predatory criminal sexual assault pertaining to penis to vagina contact and aggravated criminal sexual abuse pertaining to foot to vagina contact for each victim.
¶ 16 Tenise Gilliam testified that she is the mother of Beonca and Brianna. Tenise began dating Gilliam in 1996, when Beonca was two years old and Brianna was four months old. After dating Gilliam for four to five months, Tenise and her daughters moved in with Gilliam at his mother's apartment on Monroe Street. Gilliam's brother also lived at the apartment. Tenise testified that she worked full time and Gilliam took care of Beonca and Brianna.
¶ 17 Tenise testified that in 1998, she and Gilliam moved into their own apartment on 76th Place with their newborn daughter as well as Beonca and Brianna. In 1999, Tenise testified that the family moved to Indianapolis, and she had another daughter with Gilliam. Tenise testified that she continued to work full time in Indianapolis while Gilliam cared for the children.
¶ 18 In 2001, Tenise and Gilliam broke up and Tenise moved back to Chicago with all four children. During this time, Tenise lived at her mother's apartment on Monroe Street with the four girls. Gilliam also
[377 Ill.Dec. 103] moved back to Chicago and the children would visit him regularly. In January 2002, Tenise and Gilliam reconciled and got married. The couple had a third child together. Tenise and Gilliam moved back to Indianapolis with their three children, and Beonca and Brianna. The couple lived in Indianapolis for about 11 months. In 2003, Tenise ...