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People v. Boling

Court of Appeals of Illinois, Fourth District, Fourth Division

March 12, 2014

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
BRANDON M. BOLING, Defendant-Appellant

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[Copyrighted Material Omitted]

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As Corrected.

Appeal from Circuit Court of Coles County. No. 11CF323. Honorable James R. Glenn, Judge Presiding.

Reversed and remanded.

SYLLABUS

Defendant's convictions for two counts of predatory criminal sexual assault of a child were reversed and the cause was remanded for a new trial where the evidence was closely balanced and defendant established plain error based on the cumulative effect of errors that threatened to tip the scales of justice against him, including the improper admission of a nurse's testimony that was not relevant to her examination of the victim as required by section 115-13 of the Code of Criminal Procedure, the improper admission of testimony suggesting that defendant had been accused of prior similar sexual misconduct, the trial court's failure to conduct a hearing on the admissibility of prejudicial out-of-court statements with respect to the steps of the investigation, the failure to instruct the jury on the limited purpose of certain evidence, and the improper attempts to bolster the victim's credibility.

Michael J. Pelletier, Karen Munoz, and Allen H. Andrews (argued), all of State Appellate Defender's Office, of Springfield, for appellant.

Brian Bower, State's Attorney, of Charleston (Patrick Delfino, David J. Robinson, and Kathy Shepard (argued), all of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

JUSTICE STEIGMANN delivered the judgment of the court, with opinion. Presiding Justice Appleton and Justice Holder White concurred in the judgment and opinion.

OPINION

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[¶1] In February 2012, a jury convicted defendant, Brandon M. Boling, of two counts of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West

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2010)). In April 2012, the trial court sentenced defendant to two consecutive terms of 31 years in prison.

[¶2] Defendant appeals, arguing that (1) hearsay statements of the victim, K.A., were improperly admitted under section 115-10 of the Code of Criminal Procedure of 1963 (the Code) (725 ILCS 5/115-10 (West 2012)) because those statements described (a) events that were not elements of the charged offenses and (b) criminal offenses against someone else; (2) the State improperly elicited hearsay statements that revealed previous allegations of sexual abuse against defendant; (3) sexual assault nurse examiner Noelle Cope was not qualified to offer her opinion that the victim's complaints were credible; and (4) the prosecutor improperly commented upon the victim's credibility in closing argument. We reverse defendant's convictions and remand for a new trial.

[¶3] I. BACKGROUND

[¶4] A. The State's Charges

[¶5] In July 2011, the State charged defendant with three counts of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2010)) and one count of aggravated criminal sexual abuse (720 ILCS 5/12-16(d) (West 2010)). (The State dismissed the count of aggravated criminal sexual abuse prior to trial.)

[¶6] The State's charges of predatory criminal sexual assault of a child alleged that between August 2010 and May 2011, defendant (born November 25, 1974) committed various acts of sexual penetration upon his girlfriend's daughter, K.A. (born October 8, 2002), including placing (1) his penis in her sex organ, (2) his penis in her anus, and (3) his mouth on her sex organ.

[¶7] B. The State's Motion In Limine Pursuant to Section 115-10

[¶8] In January 2012, the State filed a " motion in limine to admit statements" pursuant to section 115-10 of the Code. Specifically, the State sought to admit statements K.A. made in July 2011 to (1) her mother, Jamie Burwell; (2) Burwell's sister, Ryan Reardon; and (3) Lieutenant Detective Jonathan Seiler. Over the course of two days in January and February 2012, the trial court held a hearing pursuant to section 115-10(b)(1) of the Code (725 ILCS 5/115-10(b)(1) (West 2012)) to determine the admissibility of K.A.'s hearsay statements.

[¶9] 1. K.A.'s Statements to Burwell

[¶10] Burwell testified that prior to July 9, 2011, she was in a dating relationship with defendant. Defendant did not live with Burwell permanently, but he would regularly travel from his Missouri residence to Mattoon, Illinois, where he would spend weekends with Burwell and K.A. at Burwell's apartment.

[¶11] On July 9, 2011, based on " some information" that Burwell received from Reardon, she had a conversation with K.A. about " good touches versus bad touches." Present for this conversation were Burwell, K.A., Reardon, and Reardon's daughter, A.W. (born July 2002). Burwell told K.A. to tell her if anybody ever touched her in her " bad spot" (her vagina). When asked by the State if K.A. made any statements during this conversation, Burwell testified as follows:

" [K.A.] told me that [defendant] was kissing her neck one day and that he left a red mark. She asked me what it was. I told her I didn't know, and she said that he made her put a cold spoon on it so the mark would be gone before I came home from work."

When asked if she recalled any other statements K.A. made, Burwell said, " No. My mind went crazy at that time."

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[¶12] Burwell testified further that on July 17, 2011, she and K.A. were alone in her bedroom. K.A. asked Burwell what the " bottle of stuff" was in her dresser drawer. Burwell looked in her drawer and identified a bottle of personal lubricant. K.A. told her that defendant " put it on her and put it on himself."

[¶13] 2. K.A.'s Statements to Reardon

[¶14] Reardon testified that on the evening of July 8, 2011, she was playing dominoes at her apartment with Burwell, defendant, and defendant's cousin, Fernandez, who was in town to help defendant work on a car. (Fernandez's last name does not appear in the record.) When Burwell and defendant left to get a deck of playing cards, Fernandez asked Reardon if he could spend the night because he needed to talk to her about " some things." Reardon agreed and had a conversation with Fernandez during the early morning hours of July 9. Reardon did not testify at the hearing as to the nature or details of that conversation.

[¶15] At approximately 7 or 8 a.m. on July 9, 2011, after staying up all night, Reardon and Fernandez went to Burwell's apartment. After defendant and Fernandez left the apartment, Reardon told Burwell what she heard from Fernandez. Reardon and Burwell spoke alone in Burwell's bedroom for approximately 30 to 45 minutes, during which time " there was a lot of crying and stuff because there was so much that [Reardon] had heard." Reardon talked with Burwell about having a conversation with K.A. and A.W. about good touches and bad touches. When K.A. and A.W. knocked on the bedroom door, Reardon let them into the room so she could talk with them.

[¶16] Reardon explained to K.A. and A.W. that good touches are things like hugs and kisses from mom or grandma, and bad touches are touches to the private areas that should only be done by a doctor. Burwell was in the room at the beginning of this conversation, but she left at some point. The entire conversation lasted approximately 5 to 10 minutes. Reardon told K.A. not to be scared to tell her if someone gave her a bad touch because she would make sure it never happened again. K.A. then asked Reardon whether anything would happen to the family dog or her guinea pigs if she told. Reardon assured her that nothing would. Reardon testified that " [K.A.] took a great big deep breath, and like her shoulders relaxed, and she just came forth and started telling all kinds of stuff."

[¶17] K.A. told Reardon that defendant would take her into Burwell's bedroom and put her on Burwell's bed. K.A. demonstrated for Reardon how she would try to pull her underpants up when defendant would pull them down. K.A. told Reardon that defendant " put his privates on her privates, and on her bottom" and " put his mouth on her privates." K.A. pointed to her vagina when she referred to her privates. Reardon asked K.A. if defendant's privates went inside of her privates, to which K.A. responded that defendant's privates were " on top" of her privates. K.A. also said defendant kissed her neck, leaving a red mark, and used a cold spoon from the freezer to make the redness go away before Burwell got home. K.A. stated that defendant " told her that he could love her like he loves her mom, and he was showing her how you love each other." Following this conversation, Reardon and Burwell contacted the police.

[¶18] 3. K.A.'s Recorded Statements to Seiler

[¶19] Seiler testified that he received specialty training at Finding Words, which specializes in the interviewing of child sex victims. On July 9, 2011, Seiler conducted an audio and video-recorded interview of

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K.A. The recording of that interview was played in its entirety at the hearing.

[¶20] During the interview, Seiler showed K.A. anatomically correct drawings of a nude girl and a nude boy and asked her to identify various parts of the male and female body. K.A. identified the female genitals as the " woo-woo," the female breasts as " boobies," the buttocks as the " butt," and the male genitals as " privates." K.A. told Seiler that defendant touched her (1) on the outside and inside of her woo-woo and butt with his fingers; (2) on the inside of her woo-woo and butt with his privates; and (3) on her boobies, lips, and butt with his mouth. She explained that when this would happen, defendant kept trying to pull her pants down and she kept trying to pull them up. K.A. further stated that sometimes defendant's pants were on, and sometimes they were pulled down. When defendant touched her woo-woo or butt with his privates, his privates would be " shaking up and down."

[¶21] K.A. told Seiler that defendant touched her on her woo-woo or butt with his fingers or privates three or four times when she was eight years old (her age at the time of the interview). Each time, he did so in Burwell's bedroom with the door locked when Burwell was not home. K.A. told Seiler that " usually" Kim Stone--Burwell's " best friend" --was present at the apartment when defendant touched her. However, K.A. asserted that Stone did not know what was happening in the bedroom because defendant would always lock the bedroom door and tell Stone " something different." After these incidents, defendant would tell K.A. not to tell her mom or else he would not let her see Jasper, the dog that he took care of, and he would take away her guinea pigs. K.A. told Seiler that she believed defendant, adding that she did not want to tell on him because then he would leave, her mom would get mad, and he would tell her mom something different.

[¶22] When Seiler asked K.A. if she had ever seen defendant " do this to someone else," K.A. said " no," but then described an incident in which she, defendant, and A.W. were playing hide-and-seek at Burwell's apartment when no one else was home. While K.A. was hiding, defendant found A.W. and took her into Burwell's bedroom. K.A. could hear A.W. " hollering" for her and yelling " [K.A.], help! Help! Help!" K.A. initially did not come out of her hiding spot because she was scared that " it might happen to [her,] too." K.A. eventually went to the bedroom and found it locked. She was able to unlock the door with her finger, but she could not open it because defendant had something blocking the door. K.A. told Seiler that she did not know what happened in the bedroom, and A.W. did not tell her, but K.A. stated, " I figured it was what was happening to me."

[¶23] 4. The Court's Section 115-10 Ruling

[¶24] At the conclusion of the hearing, the trial court ruled that all of K.A.'s aforementioned statements were admissible under section 115-10 of the Code.

[¶25] C. The State's Motions In Limine as to Evidence of Other Crimes

[¶26] The State filed two separate motions in limine to admit evidence of defendant's other crimes, specifically his criminal sexual conduct with (1) A.W. and (2) his two daughters, K.S.B. and K.R.B. The State argued in both motions that such other crimes evidence was admissible under (1) the common-law doctrine allowing evidence of other crimes to show a common design, scheme, or plan, and (2) section 115-7.3(b) of the Code, which allows evidence of other, similar crimes to show propensity in cases involving predatory criminal sexual abuse and other enumerated

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sexual offenses. See People v. Donoho, 204 Ill.2d 159, 176, 788 N.E.2d 707, 718, 273 Ill.Dec. 116 (2003) (" [T]he legislature enacted section 115-7.3 to enable courts to admit evidence of other crimes to show defendant's propensity to commit sex offenses if the requirements of section 115-7.3 are met" ).

[¶27] 1. Defendant's Crimes Against A.W.

[¶28] In support of its motion in limine as to defendant's crimes against A.W., the State presented a recording of Seiler's interview of A.W., which he conducted immediately after his interview of K.A. In the interview, A.W. detailed two instances of sexual abuse by defendant, including an instance in Burwell's bedroom during which K.A. attempted to get inside but could not because defendant had blocked the door. The court granted the State's motion in limine, ruling that " the testimony of A.W. can come in as other crimes evidence, and also pursuant to section 115-7.3 [of the Code]."

[¶29] 2. Defendant's Crimes Against K.S.B. and K.R.B.

[¶30] In support of its motion in limine as to defendant's crimes against K.S.B. and K.R.B., the State presented recordings of separate January 2012 interviews of those girls conducted by Vicki Joseph of the Amy Center in Mount Vernon, Illinois. Both girls described incidents of criminal sexual abuse, including penetration, committed by defendant upon them 11 to 12 years earlier, when they were between the ages of 2 and 5. The trial court ruled that the evidence of defendant's crimes against K.S.B. and K.R.B. was admissible under neither the common-law doctrine to show a common scheme, plan, or design, nor under section 115-7.3(b) of the Code. Accordingly, the court denied the State's motion in limine as to the evidence of defendant's crimes against K.S.B. and K.R.B.

[¶31] D. Trial

[¶32] The parties presented the following pertinent evidence at defendant's February 2012 jury trial. (As we will discuss further in our analysis section, because defendant asserts plain error, his claims require us to determine whether the evidence at trial was closely balanced. Accordingly, we set forth the evidence in detail.)

[¶33] 1. The State's Evidence

[¶34] a. K.A.'s Testimony

[¶35] In response to leading questions, K.A. testified that defendant touched her on her chest, her " front bad spot," and her " back bad spot," which she identified as her " bottom." K.A., however, testified that she did not know, or could not remember, (1) what he used to touch her in those places; (2) how often he touched her; (3) how old she was when he touched her; (4) whether he touched her on the inside or outside; (5) whether he put anything on her when he touched her; or (6) whether he said anything to her when he touched her.

[¶36] K.A. recounted that on one occasion, defendant made her put a spoon in the freezer and then on her neck to make a red spot go away. However, she could not remember how the red spot got on her neck. When asked if her clothes were on when defendant would touch her bad spots, K.A. testified, " He would try to pull them down, but I would put them back on." When asked if she ever saw any of defendant's body parts when he touched her, K.A. said, " No." However, she said, " I don't know" when asked if " any of his body parts that you wouldn't ordinarily be able to see" touched her. K.A. confirmed that she had her ninth birthday on October 8, 2011, but she could not remember whether defendant touched her before or after that date.

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[¶37] b. Burwell's Testimony

[¶38] Burwell testified that she began dating defendant in June 2009 and she was happy in the relationship. Defendant appeared to get along well with K.A., and Burwell did not notice anything that caused her concern. After losing his job, defendant offered to begin babysitting K.A. while Burwell was at work.

[¶39] Burwell testified about her July 9 conversation with Reardon, as follows:

" [THE STATE]: Did you have a conversation with [Reardon] on July 9th of last year?
A. Yes, I did.
Q. And was the nature of that conversation--without getting into the specifics of what [Reardon] may have said, what was the nature of that conversation?
A. Um, it was about some stuff that [defendant] had been accused of.
Q. Okay. Did [Reardon] want to have a conversation with your daughter?
A. Yes.
***
Q. Now, what was the nature of the conversation that [Reardon] wanted to have with [K.A.]?
A. Good touch/bad touch.
***
Q. Now, what do you mean by good touch/bad touch?
A. Well, you know, is anybody--well, I mean like the good touch/bad touch, has anybody, you know, ever touched you in a spot that they shouldn't have, or the manner that they shouldn't have."

[¶40] Burwell testified that she did not want to have the conversation with K.A. about good touches and bad touches because she thought K.A. would have told her if something was going on. Burwell was not present for the entire conversation between Reardon and K.A. because she was getting dressed and her " mind was just all over the place." When asked what she heard K.A. say during the conversation, Burwell testified as follows:

" She had stated to me that [defendant] was kissing on her neck, called her what he called me, and that he had left a red mark on her neck, and that he made her put a cold spoon on it so the marks would be gone before I came home from work."

Burwell testified that defendant called her " Baby," but she never heard defendant call K.A. that name. After K.A. made the aforementioned statements, Burwell left the room and did not hear anything else K.A. said.

[¶41] Burwell also testified, consistent with her testimony at the section 115-10 hearing, about K.A.'s statements regarding the bottle of personal lubricant in her dresser drawer. The trial court admitted that bottle of lubricant into evidence.

[¶42] Finally, Burwell testified that Stone, her former friend and neighbor, would occasionally babysit K.A. at Burwell's apartment. Burwell was no longer friends with Stone because she learned that (1) Stone was present at her apartment " when some of the stuff was going on with [K.A.]" and (2) defendant had an affair with Stone while he was dating Burwell. Burwell testified that she learned of that information after K.A. revealed her claims of sexual abuse against defendant.

[¶43] c. Reardon's Testimony

[¶44] Reardon testified about her conversation with Fernandez, as follows:

" [THE STATE]: *** Without going into the details of the conversation, did you have a conversation with Fernandez?
A. Yes, I did.
Q. Who was or who is Fernandez?

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A. He is a cousin of [defendant]. And he was in town to help fix his friend Amy's daughter's car.
Q. Okay. And did Fernandez request to have a private ...

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