[Copyrighted Material Omitted]
Appeal from Circuit Court of Sangamon County. No. 11CF262. Honorable Patrick W. Kelley, Judge Presiding.
Defendant's convictions for three counts of predatory criminal sexual assault of a child and one count of aggravated criminal sexual abuse based on his conduct with his daughter were upheld, since the conviction for aggravated criminal sexual abuse did not violate the one-act, one-crime rule where the State differentiated between defendant's various acts and the charges before the jury, aggravated criminal sexual abuse was not a lesser-included offense of predatory criminal sexual assault, and the trial court did not err in admitting certain hearsay testimony.
Michael J. Pelletier, Karen Munoz, and Colleen Morgan, all of State Appellate Defender's Office, of Springfield, for appellant.
John Milhiser, State's Attorney, of Springfield (Patrick Delfino, David J. Robinson, and Luke McNeill, all of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
JUSTICE STEIGMANN delivered the judgment of the court, with opinion. Justices Pope and Holder White concurred in the judgment and opinion.
[¶1] In April 2012, a jury convicted defendant, Aaron P. Stull, of (1) three counts of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2008)) (counts I through III) and (2) one count of aggravated criminal sexual abuse (720 ILCS 5/12-16(b) (West 2008)) (count IV). The trial court later imposed separate 15-year sentences on counts I, II, and III and a 4-year sentence on count IV, all to be served consecutively.
[¶2] Defendant appeals, arguing that (1) his conviction for aggravated criminal sexual abuse violated the one-act, one-crime rule and (2) the trial court abused its discretion by admitting certain hearsay evidence. We disagree and affirm.
[¶3] I. BACKGROUND
[¶4] A. The State's Charges
[¶5] In March 2011, the State charged defendant with (1) three counts of predatory criminal sexual assault of a child and (2) aggravated criminal sexual abuse. Specifically, the State alleged that from August 25, 2009, through May 24, 2010, defendant committed the offense of predatory criminal sexual assault of his then-six-year-old daughter, E.S., in that he (1) " placed his mouth on the sex organ of E.S." (count I), (2) " placed his penis in contact with the anus or sex organ of E.S." (count II), and (3) " placed his penis in the mouth of E.S." (count III). The State also alleged that during the same time frame, defendant committed the offense of aggravated criminal sexual abuse in that he " knowingly touched the body of E.S. for the purpose of sexual arousal or gratification" (count IV).
[¶6] B. The State's Written Pretrial Motion
[¶7] In June 2011, the State filed a notice of intent to use hearsay evidence pursuant to section 115-10 of the Code of Criminal Procedure of 1963 (Criminal Procedure Code) (725 ILCS 5/115-10 (West 2010)). Specifically, the State sought a pretrial ruling on the admissibility of statements E.S. made to school officials and a forensic interviewer. At a November 2011 hearing, the following evidence was presented in support of the State's notice.
[¶8] Carrie Russell, a special education teacher, testified that (1) E.S.'s preschool screening indicated she was cognitively delayed and (2) her hyperactivity caused concentration difficulties. In addition, E.S. did not enter preschool with certain skills common to children her age. Russell became E.S.'s " resource" teacher when E.S. entered kindergarten.
[¶9] On May 24, 2010, a teacher brought E.S. to see Russell because E.S. had been kissing boys during the recess period. As Russell attempted to explain to E.S. why such behavior was inappropriate, E.S. interrupted and asked whether Russell wanted to know a secret. Before Russell could respond, E.S. told her, " Daddy and I have a special kiss and it's only for daddy and I[; ] no one else knows." E.S. then showed Russell the special kiss by " sticking her tongue out and moving it around." E.S. added that (1) her father also kisses her private parts, gesturing with her hands to indicate her vagina and (2) she kisses her father's private parts.
[¶10] Russell asked E.S. where the kissing occurs. E.S. responded that it occurs in her home when no one else is there, reiterating that " [i]t's a secret and no one else knows." E.S. then whispered in Russell's ear, " And my daddy puts his ding dong in my butt." Russell immediately took E.S. to see the school counselor, Terri
Grieve. Russell estimated that her conversation with E.S. lasted approximately four minutes.
[¶11] Grieve, a coordinator who provides services for " at risk" students, testified that E.S. would, on occasion, get " very agitated and angry throughout the school day," and her office provided E.S. a " safe spot." On May 24, 2010, Russell called Grieve and asked if she could bring E.S. to her office. Once there, E.S. agreed to talk to Grieve about her secret. E.S. told Grieve that she and her father had a special kiss that they do when they were home alone. Grieve prompted E.S. to tell her " a little bit more about that." As E.S. did with Russell, she showed Grieve the special kiss, adding, " [w]e touch tongues and we kiss each other's private parts like this." Grieve documented that E.S. then told her that " [w]e touch each other[']s private parts with our special kiss," and " [d]addy sticks his ding dong in my butt." During that meeting, Grieve did not ask E.S. questions, which was a method she had used in previous conversations with E.S.
[¶12] Grieve acknowledged that E.S. had been previously removed from the playground for kissing boys and counseled that such behavior was inappropriate. Despite those previous talks, E.S. had not previously mentioned her secret. Grieve stated that during her May 24, 2010, conversation, E.S. was " excited to talk about what she was feeling." After speaking with E.S., Grieve called the Department of Children and Family Services (DCFS) and immediately thereafter documented her conversation with E.S.
[¶13] Tracey Pearson, a forensic interviewer with the Child Advocacy Center, testified that her job consisted of interviewing children and conducting " neutral fact finding." On May 26, 2010, Pearson conducted a videotaped interview of E.S., which was prompted by a DCFS hotline report. During the interview, E.S. described how she would watch naked cartoons with her father on the television and then perform the same acts as the cartoon characters. Those acts included father (1) kissing her on her lips, (2) licking her " woo woo," (3) sticking his " ding dong" in her butt, and (4) having her suck on his ding dong until " white stuff" came out. E.S. described that her father's " ding dong" tasted like " barf" and when " white stuff" would come out, her father would rub it " on her face and all over" with his " ding dong." E.S. stated that these acts occurred more than once and only with her father when no one else was home. E.S. then told Pearson that her father told her to not to say anything because it was their secret. (During the interview, E.S. pointed to the vagina on an anatomical drawing and identified it as a " woo woo." )
[¶14] On May 11, 2011, almost one year later, Pearson reinterviewed E.S. based on a second hotline report, which conveyed that when the assigned DCFS caseworker visited the home E.S. shared with her biological mother, E.S. reported that C.S.--her older brother by almost three years--inflicted the sexual abuse she described in May 2010 instead of defendant. Pearson explained that the purpose of the second interview was to determine whether E.S.'s new claims were true. Pearson noted that E.S.'s biological mother was not cooperating with the police's investigation of defendant.
[¶15] During that recorded second interview, E.S. recalled that she and Pearson had discussed " private parts" during the first interview. E.S. confirmed that everything she told Pearson during their first interview was true. Specifically, that her father had " naked" her and put his penis in her anus. (E.S. acknowledged that " penis" meant " ding dong," and she appeared
to use the word " naked" as a verb in the past tense.) E.S. also described that her brother, C.S., " wiped" her, and " naked" her. E.S. illustrated that when C.S. " naked" her, he attempted to put his penis in her anus. E.S. stated C.S. learned this conduct by peeking through her father and mother's bedroom door and watching them. E.S. also showed Pearson that C.S. " wiped" her by rubbing his penis on her chest and the small of her back.
[¶16] Defense counsel argued that E.S.'s statements were unreliable because E.S.'s identification of the perpetrator changed. Following argument, the trial court, noting that it had viewed both videotaped interviews Pearson conducted, stated, in pertinent part, as follows:
" Your arguments may have some merit, [defense counsel], if the May 11th statement was made in close temporal proximity to May of 2010, but *** it was [made] a year later, and the fact is that [E.S.] was in the custody of her mother, who the only evidence [the court has] at this point was not cooperative with the prosecution of the case, so a certain inference is to be drawn there, but if [the court] focus[es] only on the 2010 statements, it is clear those statements surpass the standards required under 115-10 [of the Criminal Procedure Code]. The[y] are very reliable, they are spontaneous, at least the first one is, the one [to] Grieve and *** Russell, they are spontaneous, unprompted, and graphic. [E.S.] describes things that a kindergartner, first[-]grader should never know about, and those, left to themselves, would be *** reliable. The May 26 interview, having just watched that, was very well performed, it was non-leading, it was done the way it was supposed to have been done, and it was, there again, very reliable, and so taken by themselves, I think there is no question as to their reliability.
Now what [defense counsel] want[s] to do *** is say well, a year later the witness made a statement that was not the same as the statement we heard before, and perhaps that's true. As [the court] recalls from that tape [E.S.] was a totally different child on May 11th of 2011. She was agitated, unable to sit still, obviously distressed, and yet she did still maintain that [defendant] abused her, but then she also said that her brother[, C.S., who the court] believe[s] was *** two years older than [E.S.] or three?
[DEFENSE COUNSEL]: Right.
THE COURT: --sexually abused her.
Now on its face, in my experience that's absurd, but the relevant fact is that [E.S.] still maintains [defendant] abused her in the same way that he abused her in her statements of the year before, so what [the court is] going to do [in fairness] to the defense [is] to admit all of [the statements]."
[¶17] C. The State's Oral Motion in Limine
[¶18] During a March 2012 pretrial hearing, the State informed the trial court that following discussions with defendant's counsel, it was seeking a pretrial ruling on the admissibility of hearsay testimony by Careyana Brenham, a physician who interviewed and examined E.S. shortly after her May 2010 disclosures to Russell, Grieve, and Pearson. Specifically, the State sought to admit the statements E.S. made to Brenham during their encounter pursuant to section 115-13 of the Criminal Procedure Code (725 ILCS 5/115-13 (West 2010)), which provides an exception to the prohibition against hearsay evidence for statements made by a sex-offense victim to medical personnel. Defendant objected, arguing only that Brenham should not be
permitted to disclose any statements E.S. made regarding the offender's identity.
[¶19] Following argument, the trial court granted the State's motion in limine .
[¶20] D. The Evidence Presented at Trial
[¶21] At defendant's April 2012 trial, the parties presented the following evidence.
[¶22] 1. The State's Evidence
[¶23] Illinois State Police special agent John Yard testified that on May 26, 2010, he interviewed defendant for approximately 20 minutes. Defendant, who was then 32 years old, informed Yard that E.S., his daughter, was a very good child who was truthful, despite being a storyteller. Defendant denied that he had any sexual contact with E.S. and stated further that he " gets along very well with all of his children."
[¶24] E.S., who was then eight years old, testified that her mother told her that her job was to get defendant out of jail by telling the truth. E.S. remembered talking to Russell regarding C.S. " wiping" her " private part in the front." E.S. could not remember Grieve. E.S. stated that her father (1) put his " ding dong" inside of her buttocks and in her mouth and (2) licked her " wee wee." When asked if E.S. could remember if her father's mouth touched any other part of her body, E.S. responded that it had " been a while and I forgot." E.S. acknowledged that her older brother, C.S., saw what her mother and father were doing in their bedroom through a crack in the door. (The events C.S. observed were sexual in nature.) Afterward, C.S. stated, " I wanna do this and I wanna do that and I wanna do everything that dad did." E.S. also recounted a time when her mother pulled C.S. off of her when he attempted to do the same sexual things to her as father.
[¶25] Russell testified consistently with her account at the November 2011 hearing on the State's notice of intent to use hearsay, adding that (1) she was alone with E.S. when E.S. initially told her of the secret kiss and (2) E.S. did not seem distraught or upset when she revealed that secret. Russell also testified consistently with Grieve's account at the November 2011 hearing regarding the events that occurred after E.S. disclosed her secret to Grieve.
[¶26] Grieve also testified consistently with her account at the November 2011 hearing on the State's notice of intent to use hearsay, adding that E.S. would often describe an event in an excited manner although it was an issue that should have upset her.
[¶27] Brenham testified that in June 2010, she examined E.S. That examination consisted of privately interviewing E.S. and then performing a physical exam. Brenham confirmed that conducting an interview before performing a physical exam was a " general practice" for physicians. Brenham's rationale for conducting private interviews with child victims was to prevent parents or caregivers from providing answers to questions posed to the child. Brenham explained that she wants a child victim " to tell me what happened, disclose if there's any pain or any other problems[,] and get that [information] from the child themselves." During the 15-minute interview, E.S. was, at first, hesitant to talk, stating only that " somebody had touched her." Brenham then showed E.S. an anatomical drawing and asked her to show her where she had been touched, which prompted the following response:
" [E.S.] pointed to the genital area, to the anal area, and to the breasts, and then she opened up and started talking more.
When pointing to the breasts, she stated that it was with a mouth and that [defendant] had sucked on her breast.
When pointing to the genital area, [E.S.] stated both that she was touched with [defendant's] finger, and in doing that, she held up one finger just to indicate that and held up her first finger ***, and also I believe pointed to the hand on the diagram[,] ...