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People v. Burgund

Court of Appeals of Illinois, Fifth District

November 22, 2016

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
MICHAEL S. BURGUND, Defendant-Appellant.

         Appeal from the Circuit Court of Madison County. No. 11-CF-660 Honorable Ann Callis, Judge, presiding.

          Attorney for Appellant Curtis M. Dawson, Lucco, Brown, Threlkeld & Dawson, LLP

          Attorneys for Appellee Hon. Thomas D. Gibbons, State's Attorney, Madison County Courthouse, Patrick Delfino, Director, Stephen E. Norris, Deputy Director, Patrick D. Daly, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor

          JUSTICE STEWART delivered the judgment of the court, with opinion. Justices Chapman and Cates concurred in the judgment and opinion.

          OPINION

          STEWART JUSTICE

         ¶ 1 A jury found the defendant, Michael S. Burgund, guilty of five counts of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2010)). The circuit court sentenced the defendant to natural life in prison. The defendant appeals his conviction, arguing that the circuit court erred in precluding him from presenting certain testimony, including expert testimony, that he argues would have supported his claim that he gave a false confession. The defendant also argues that the circuit court abused its discretion in allowing the State to present hearsay statements of one of the victims pursuant to the exception to the hearsay rule contained in section 115-10 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-10 (West 2014)). For the following reasons, we agree with the defendant's argument that the circuit court improperly excluded testimony that would have supported his false confession defense. These erroneous evidentiary rulings denied the defendant his constitutional right to a fair trial. We, therefore, reverse his convictions and sentence and remand for a new trial.

         ¶ 2 BACKGROUND

         ¶ 3 The charges against the defendant stem from allegations that he committed acts of sexual penetration upon his two minor daughters, M.B. and K.B. At the time of the trial, M.B. was five years old, and K.B. was three years old. The alleged abuse occurred when M.B. was between the ages of 1 and 3½, and K.B. was between one and two years old. M.B. testified at trial, but K.B. did not. M.B.'s trial testimony was vague and inconclusive. Medical testimony presented by the prosecution was also inconclusive; while some of the medical evidence supported the State's allegations, the evidence was also explainable by potential innocent causes.

         ¶ 4 The State's evidence of the defendant's guilt consisted largely of a videotaped confession that he voluntarily gave to a detective with the Alton police department at a time when he was not under any suspicion of any wrongdoing. In addition, the State's case relied on hearsay statements M.B. allegedly made to Melissa, who is the children's mother and, at the time of the alleged abuse, was the wife of the defendant. The State also relied on hearsay statements M.B. allegedly made to Melissa's mother, Mary Buttry. Accordingly, the success of the State's case was heavily dependent upon the credibility of the defendant's confession and the credibility of Melissa and Buttry.

         ¶ 5 The defendant testified in his defense and denied abusing his daughters. His defense was based on a claim that he gave a false confession because of coercion, suggestion, and manipulation by Melissa and Buttry. He claimed that they created a coercive and accusatory psychological environment throughout his marriage. He emphasized that he, Melissa, and Buttry had deeply held religious beliefs and that Melissa's and Buttry's coercion involved religious overtones, false accusations of sexual lust, and claims by both Buttry and Melissa as to having God-gifted, supernatural powers of "discernment." He maintained that the coercion ultimately caused him to falsely believe and confess that he had abused his children. He claims that, after his arrest and removal from Melissa's and Buttry's influence, he realized that he had given a false confession to crimes that had never occurred.

         ¶ 6 On appeal, the defendant argues that the circuit court improperly excluded testimony from witnesses who would have corroborated important aspects of his testimony concerning the psychological conditions leading up to his false confession, particularly his description of continual accusations by Melissa involving religious and sexual overtones and her claim to have the power of discernment. The defendant also argues that the court improperly excluded testimony from a psychological expert who would have opined that his psychological conditions made him highly suggestible and easily led, especially in matters involving religious or sexual overtones.

         ¶ 7 In order to fully understand and analyze the defendant's claims, we must set out the unique and unusual facts of this case with particular detail. Our background discussion focuses only on the testimony presented at the jury trial. In our analysis of the specific issues raised by the defendant, we will provide further facts that were adduced outside the presence of the jury that are relevant to the circuit court's evidentiary rulings.

         ¶ 8 Melissa and the defendant were married in 2006, and they lived with Buttry for 2½ to 3 years before they obtained their own residence. Buttry testified that she, Melissa, and the defendant attended the same church, The River of Life in Alton, Illinois. Melissa testified that their attendance at the church was sporadic. She stated, "there were seasons where we were every Sunday, some Wednesdays. There were times when we would miss on occasion." The pastor of the church, Mark Church, testified that when they first came to the church, they came consistently, then "sporadically later, and then hardly none at all then after that."

         ¶ 9 Buttry testified that she was familiar with the concept of discernment. She explained that discernment was the ability "[t]o see past just what's in front of you." As an example, she stated that normal discernment is "if your child is acting happy, and you can see that they're just acting happy and that they're really sad about something, and you see past that that they're really bothered instead." She also described supernatural discernment, which can be a gift from God. She explained supernatural discernment as taught in their church as follows:

"In the Bible it talks about there are different gifts. So, like where discernment is a normal thing, then someone might have a discernment that's a gift, and they would be able to discern things that no one-no one else could."

         ¶ 10 Buttry denied having supernatural discernment as a gift from God and denied ever telling the defendant that she had the gift of discernment. She also testified that discernment was "in scripture" but that the church did not "elaborate on it or anything."

         ¶ 11 Melissa also testified about "discernment." She told the jury that she "believe[d] in discernment" but was not an expert on it. In describing her understanding of discernment, she told the jury that it was "being able to understand something maybe. *** I don't know." When asked whether discernment was being able to see that the defendant was lusting, she replied, "I don't even understand what that question means." When asked whether she had ever told anyone that she had discerned that "somebody was a very lustful person, " she answered, "Now, why would I say that?" She testified that she would never say anything like that.

         ¶ 12 Their pastor, Mark Church, testified that discernment meant "you think you can figure something out. *** You're smart. You have wisdom maybe." When asked whether discernment was something that is used often in his church, he testified, "um-I don't know if it's-it's used. I mean, we a-you know, we teach that we should seek wisdom, you know, from the Lord in our lives." When asked whether Buttry ever told him that she has a supernatural power of discernment, he responded, "Not that I can recall." On cross-examination, the pastor testified that in "First Corinthians 12 there's a list of gifts" and "there is a gift of discernment in that list." He added, "we don't teach on First Corinthians 12 much. So, I can't really tell you that a-it's something that we emphasize."

         ¶ 13 Buttry testified that the defendant and Melissa had verbal and physical arguments during their marriage, but neither was physically abusive toward their children. She testified that she was concerned about their verbal and physical arguments on occasion. On one occasion, she told Melissa that physical arguments were not going to happen in her house and that, if it happened again, she would call the police.

         ¶ 14 On cross-examination, Buttry explained that the arguments between Melissa and the defendant concerned the defendant's "lust." She testified that during or after the arguments, Melissa told her that she had to remove certain things from around the house because she was "upset about what [the defendant] was telling her that he was attracted to." The things Melissa told Buttry to remove from her house included angel figurines, babysitter pictures on the refrigerator, children's books, and princess books.

         ¶ 15 Buttry testified that the defendant was present at times when Melissa told her that she had to remove these things from the house. She told the jury, "Sometimes he would acknowledge what's going on." She explained, "he would just put his head down, and, you know, acknowledge that, yeah, that was the case. *** That that needed to be removed, or a-maybe, even, you know, say, well, you know, you just-it-it's something that bothered him."

         ¶ 16 Melissa described her marriage with the defendant as "[w]eird, exhausting." She admitted that they would fight verbally and physically but testified that the police were never involved in their fights. She admitted to punching the defendant in the eye at times during physical confrontations, resulting in him having a black eye two or three times, and admitted to "head butting" him two separate times when he either held her down or held her against a wall during a fight. She said she received bruises on her arms and legs during physical fights at times.

         ¶ 17 Melissa testified that the defendant had a "continual desire for things outside of the home." She explained, "whether it was some cartoon characters to just even-we could be outside on our front porch and if they [sic] were the sounds of kids coming off the school bus walking across the street, those things were continuously brought up that they were a bother to him."

         ¶ 18 On cross-examination, Melissa told the jury that she never accused the defendant of lusting after toys or princess books. Instead, he would tell her that he was lusting after a toy or a picture and ask her or Buttry to remove it. She testified that he "asked my mom and me on several occasions to move different objects-books, movies, anything that was around that he would constantly refer to as giving him anxious wrong thoughts." She denied that she ever accused him of lusting after other people or, as an example, lusting after a woman in a car behind him after he looked in his rearview mirror. She told the jury that she never told the defendant that his lustful thoughts after looking at somebody else was the same as committing adultery, adding that she would never do that to anyone and that acting that way would be "crazy."

         ¶ 19 Melissa testified that, when they moved out of Buttry's house, they initially moved into an apartment for six months. She testified that, during this time, she had an affair, and the defendant became aware of it. She testified, "He became very arrogant towards me about it. He told me that it turned him on, and that was basically the sum of it." According to Melissa, the defendant was not "overly pleased with [the affair], but he didn't stop the relationship." She testified that they sought counseling with regard to their marital issues, and the defendant mentioned that while feeding M.B. her bottle as an infant, he often "had images of putting the bottle or her binkie in her private areas." She testified that he made similar comments about children "very often." She told the jury that she never called the police because he reassured her "that they were simply thoughts, and that he would never act on them."

         ¶ 20 Melissa testified that the defendant forewarned her that his parents were "weird" and that he "wore a different hat for them." She testified that after they married, she did not have "much of a relationship [with his parents] other than just the surface." There was an 18-month period after M.B.'s birth when she did not have any contact with the defendant's parents. She testified that she did not forbid him from seeing or calling his parents or inviting them over.

         ¶ 21 At some point after K.B. was born, Melissa contacted the defendant's mother and asked if she could come over with the kids and spend time with her because she did not "want to continue this way." After that point, she saw more of the defendant's parents.

         ¶ 22 At trial, Buttry testified about events involving M.B. that raised her concerns about the defendant. According to Buttry, an incident occurred when M.B. was "[m]aybe a year old." She testified that, while giving M.B. a bath, M.B. pushed her toys against her private areas. Buttry said that "[M.B.] would grab [her genital] area and just really grab it and pull it." She stated that this went on for "a good while." She admitted that she did not examine M.B. for any kind of medical problems, such as diarrhea or diaper rash, when the incident occurred.

         ¶ 23 Buttry testified that she did not notice anything else that concerned her until another incident when M.B. was 15 months old. This incident occurred while she was changing M.B.'s diaper. According to Buttry, M.B. "pointed to her genital area and said, 'da-da.' " She testified, "So, when she did that and was like looking at me the way she did, it was like she was communicating to me, and so when she said that, you know, I just connected the dots." On cross-examination, she could not recall whether M.B.'s only words at the time were "da-da."

         ¶ 24 Buttry testified that she told her husband about the incident, and then they "sat down with [the defendant] and asked him." According to Buttry, his response to their inquiry was "[O]h, no way. There's no way I could ever do anything like that." Buttry testified that he responded "absolutely not" in a "convincing manner." She testified that she shared her concerns with Melissa, but Melissa did not believe that the defendant could do anything like that. Buttry, therefore, "tried to embrace the fact that *** he was very convincing" and did not report anything to any authorities. She suggested to Melissa that the defendant should not give M.B. any more baths.

         ¶ 25 Dr. Laura Hill, a pediatrician, testified that she had treated both M.B. and K.B. since at or near the time of their births. She testified that on March 23, 2009, when M.B. was two, she treated her for complaints of vaginal itchiness for two weeks. In addition, M.B. had been complaining of pain when wiping or when diaper cream was applied. Dr. Hill testified that possible causes for the symptoms were diaper rash, infection, local skin irritation, a child falling or injuring herself, or digital penetration. Her diagnosis was "Dysuria or difficult or painful urination." She testified that, at that point, there was no reason to question whether child abuse was involved.

         ¶ 26 Lab test results received two days later were "negative for infection." The doctor suggested that Melissa use diaper cream for a week and "no bubble bath, rinsing with clear water." Melissa, however, told the doctor that she wanted to hold off on using diaper cream because M.B. also had itching and pain in her pubic bone area. At that time, M.B. had a broken foot in a cast, but Melissa had told the doctor that the accident that caused the foot injury would not have caused a pelvic fracture. The doctor testified that trauma was high on the list of possible causes of the type of pain Melissa reported. She also believed that digital penetration could cause the reported pelvic pain.

         ¶ 27 Dr. Hill saw K.B. on January 3, 2011, "with complaints of her bottom hurting for one month." Melissa told the doctor that there was no rash or redness in the area, that K.B. was refusing to wear a diaper during the day, that it hurt her to sit down, and that she was unable to ride her bike. Dr. Hill's examination did not reveal any redness or rashes. She testified that trauma, including sexual assault by digital penetration, could cause the reported pain with no physical symptoms. Her diagnosis was "perineal pain or pain in the diaper area, " which Dr. Hill felt was "an unusual complaint in a child of her age."

         ¶ 28 Dr. Hill asked Melissa whether "there was any concern for inappropriate touch." Melissa answered that there was "no concern." Dr. Hill testified that if Melissa "had reported she was concerned about abuse, that would have risen to the top of [her] differential diagnosis." She noted that other possible causes of K.B.'s pain symptoms included falling down, falling off a bicycle, wrestling with her sister, and "any number of causes." She testified that if she had suspected that K.B. had been abused, she was required to report it, but there was not enough for her to report anything to the police.

         ¶ 29 Melissa testified that, when Dr. Hill asked her about inappropriate touching, she answered, "That wouldn't happen." She testified that she gave that answer to the doctor despite what she claimed the defendant had previously told her "[b]ecause [she] trusted the people that [she] was with that they wouldn't hurt them." She testified that she later told the defendant about the doctor's concerns about abuse, but she did not remember his response.

         ¶ 30 Buttry testified that after the diaper-changing incident in which M.B. pointed to her private area and said "da-da, " she did not notice any unusual behaviors by the defendant for a while, except what she described as "little things kind of throughout the years." She could not recall anything specific during this period except one example. She testified, "[H]e would take her outside to play, and our house has windows all over the place, but we have a large yard, and it does kind of slope down, and he'd take her outside to play, and you couldn't find them anywhere, and I just thought, well, why do you need to take her some place that we can't see you, you know, and it would *** kind of bother me."

         ¶ 31 Buttry testified that when M.B. was 3½ years old, another incident occurred, and she again became concerned about the defendant violating M.B. She told the jury about a day when M.B. dressed up in a princess costume. She testified, "[M.B. put on her costume] and got all dolled up with it. I think we fixed her hair and everything-you know, got her all pretty, and so she stood on the chair in the kitchen, and a-modeled it for us, and we were taking pictures and just letting her know what a beautiful princess she was." Buttry explained that she "glanced over and noticed that [the defendant] *** was staring at [M.B.] with a-just a lustful gaze like a guy who looks at a woman when she's hot, " which made her feel very uncomfortable. She testified that this incident put her on "extra alert" with respect his prior denial of violating M.B. She added that "Disney princess items" were some of the items that she had to remove from her house because "[they] just got to where [they] knew not to get things like that."

         ¶ 32 Buttry told the jury that, around the same time, when M.B. was 3½ years old, she kept saying "over and over again, I will never see my family again." This raised more concerns, and Buttry felt that she needed to question M.B. to find out why she was repeating this statement. She did not question Melissa about it.

         ¶ 33 On cross-examination, Buttry testified that M.B. was also repeatedly saying, "it's all my fault." She told the jury that this statement also concerned her, but she admitted that she determined that the statement was from the movie the Lion King. She testified, "Found out it was in the Lion King-oh, it's just a movie, the Lion King. She's not upset about something."

         ¶ 34 When M.B. testified at trial, she told the jury that she owned a DVD copy of the Lion King and watched it "a lot of times because [she] liked it." During questioning, M.B. recalled a scene from the movie where the "daddy" of one of the movie's characters (Simba) gets killed. She told the jury that, in the movie, Simba "screams for his daddy under his arms" and that Simba left the lion tribe, going off on his own because he thought he had done something bad.

         ¶ 35 With respect to M.B. repeating the phrase, "I will never see my family again, " Buttry explained her concern to the jury with respect to this specific phrase as follows:

"[Y]ou know, trying to figure out why she's saying this. She *** had said some different things that, you know, we found had equated to a movie and so *** when she *** kept saying this, finally one day when she said that *** I could just connect with it. This is from something somebody has said to her. I just see that.
***
I pulled her to me, and I said, [M.B.], why are you saying this? And I said, has somebody ever said this to you, and *** she said, daddy. She put her head down and she said, daddy."

         ¶ 36 Buttry testified, "[M.B.] showed the signs of being very nervous about telling me this, " and "that to me told me a lot." Buttry continued:

"[S]o I said, look, I said, that's very good that you told me that. You told me the truth, and, I said, that's very good that you told me that, and so I said, I want to ask you something else, and it's very important that you be truthful with me on this, and you're okay, and I said, has anyone ever done anything to you that they shouldn't do. Anybody ever touched you in a way they shouldn't touch you.
***
She said, daddy, and then she put her head down."

         ¶ 37 Buttry asked M.B. to show her where she had been touched, and according to Buttry, M.B. "very nervously *** touched herself in numerous areas of her body and touched her head and her shoulders, and just, you know, numerous areas, and then she touched her genital area."

         ¶ 38 During cross-examination, Buttry agreed that discernment was the ability "to just see past what is right in front of you." She was asked, "Is that kind of like whenever a-it's all my fault? I'll never see my family again? You saw past-past that that [M.B.] was being abused?" She answered, "Right, which is very parental."

         ¶ 39 Buttry testified that, after her conversation with M.B., she did not immediately call Melissa, the defendant, or the police because she did "not want to jump to conclusions." Instead, she told M.B., "if this ever happens again, I want you to tell daddy that you've told Monga." She explained that "Monga" was M.B.'s name for her.

         ¶ 40 Although Buttry did not discuss her concerns with Melissa, Melissa told the jury that, in March 2011, she became concerned that M.B. "was never happy to come home in the evening" from Buttry's house. Melissa testified:

"If we were at my mom's that day, or if she was at my mom's that day, she was not happy to come home in the evening to stay the night there. She was not okay with it to the point of getting sick.
She often referred to our house as being scary and stupid. Constantly terrified at night. Waking up from dreams or not wanting to go to sleep at all. Picking her toenails to the point of bleeding.
Constantly saying that she was afraid I was going to die, or that someone was going to hurt me, or that same thing for her, and that she would never see her family ever again."

         ¶ 41 Buttry told the jury that a few weeks after she first talked with M.B. about her daddy touching her, another incident occurred. She testified that "just in some setting [M.B.] said, Monga, nobody can ever touch my pee-pee, and I'll tell you and mommy and daddy." She then asked M.B. if "something happened, " and M.B. responded "yeah, but *** daddy is very sorry, and he'll never do it again." At this point, Buttry still believed that she did not have anything to present to Melissa, so she "just waited."

         ¶ 42 A few weeks later, on Wednesday, March 30, 2011, Buttry picked up M.B. to babysit. She explained to the jury what happened as follows:

"I put [M.B.] *** in her car seat *** was getting ready to back out of the driveway, and [M.B.] said that again. You know, Monga, nobody can ever touch my pee-pee, and I said, you're right. You know, and I said again, has something happened? And she said, no, and that has never happened in my whole life. And I said, well, [M.B.], I said, you told me that that has. And I said, in fact, you told me that daddy had done that. And she said, yes, but he's very sorry, *** and she said, I'm not to talk to about that to anybody at school."

         ¶ 43 Buttry explained that when they got back to her house, she sat M.B. on her lap and told her that "this has got to stop." She asked how long it had been going on, and M.B.'s response was "a short time." According to Buttry, M.B. got "worried and nervous" and said, "is daddy in trouble again." Buttry testified:

"And I said again, not yet, and then she got very worried, and she like kind of lunged forward, and she said, don't tell mommy. Mommy is going to be so mad. And I said, well, look, I said, honey, you did the right thing telling me the truth didn't you."

         ¶ 44 According to Buttry, M.B. agreed with her that it was good that she told her the truth, and Buttry then explained that it was also important to tell mommy the truth. Prior to this time, Buttry had not talked to Melissa about her concerns of the defendant touching M.B. since the time she told Melissa about the incident involving M.B.'s gesture to her genitals while stating "da-da" when she was changing her diaper.

         ¶ 45 Buttry took M.B. home to Melissa. At this time, Melissa was pregnant with a third child. Buttry told Melissa, "[M.B.] has been violated, and I know by whom." She told Melissa that the defendant had violated M.B., while M.B. stood next to her. Buttry testified that she could not "remember exactly *** from that point on what all happened, " except that Melissa "took a hold of [M.B.], " who told her "that daddy had touched her pee-pee and put his on top of her head."

         ¶ 46 Melissa testified that when Buttry told her what had been happening, she "asked [M.B.] if there was something that she wanted to tell me." Melissa testified, "she was hesitant, and I said, if there's anything that you need to tell me about daddy, you can tell me. You can trust me. It's safe. You're fine, and a-she finally told me that-that daddy had been touching her." According to Melissa, "[s]he pointed to the top of her head, her mouth, her girl parts, and her bottom." She said that M.B. "referred to a froggy game" and told her "that the frog-made her put his penis in her mouth." She was asked, "Did she use that word?" She replied "No" and that she did not "remember what word she used." Melissa testified that she "[t]ried to hold it together, " called the defendant at work, and asked him to come home.

         ¶ 47 Buttry testified that the defendant came home from work after Melissa called him and that Melissa then confronted him with what M.B. had said. Buttry was present during this conversation. She testified that she did not "remember from this point" but added that she remembered "[the defendant] kind of doing that step back like, no, you know, type of response, and then from that point on taking the-you know-it-I know he numerous times kept saying, well, if she said I did, I must have, but I just don't remember, or something maybe if she said I did, I must have, but I don't remember."

         ¶ 48 According to Melissa, however, the defendant never denied abusing M.B. She testified about her conversation with the defendant after he came home as follows:

"He and I were in the living room, and I told him I had to ask him a very serious question, and I needed him to be very honest with me.
I said that [M.B.] had said these things had happened, and, um, he didn't deny it. He just kept saying things that [M.B.] is telling the truth. The evidence is there. Just those kind of things over and over."

         ¶ 49 On cross-examination, Melissa agreed that the defendant initially said he did not remember, but that it could have happened. A detective with the Alton police department, Michael O'Neill, testified that when he talked to Melissa about her initial conversation with the defendant, she told him that the defendant "denied and denied and denied."

         ¶ 50 Buttry testified that, after this initial conversation with the defendant, Melissa left the house with the children, and she then had a conversation with the defendant alone. According to Buttry, the defendant stated that "he kind of remembered something upstairs, but he just couldn't remember what had happened." She suggested that he go upstairs to see if he could "reacquaint" with his memory. Initially, she went upstairs with him, and she testified that he "kept saying that he was just blank-blacked out." Buttry responded, "I bear witness to that." She explained that she said "I bear witness to that" because "he's very convincing, and I, you know, thought that was genuine, and so that's what I was trying-I was trying to help him be comfortable." She testified that she left the defendant alone upstairs and that he returned downstairs and said "that he remembered putting his penis on her head." Buttry testified that the defendant also said, "I would of just said the whole thing, but I knew I'd go to jail."

         ¶ 51 For the first two nights after this abuse revelation, Wednesday night and Thursday night, M.B. and K.B. stayed with Buttry at her house, and the defendant stayed with Melissa at their marital home. According to Detective O'Neill, when he talked with Melissa about where the defendant stayed after she accused him of abuse on Wednesday, she told him that she did not know where to put him "until [she] had his confession."

         ¶ 52 Buttry testified that after they confronted the defendant she did not have any further discussions with M.B. about what had happened in order to "guard her mind." Melissa told the jury that the defendant kept asking her what she "was going to do about it" but that she could not process her thoughts yet.

         ¶ 53 Melissa testified that the defendant went to work on Thursday but called her "continuously" wanting to know what she was going to do. She told him that she did not know. She testified that he was supposed to work the next day, Friday, but he woke up early in the morning and was anxious about what she was going to do. When he was late for work, his boss called. She said that the defendant was "was rambling on the phone." She testified that she took the phone and told the boss that the defendant was not wanting to come to work because there had been "a family issue."

         ¶ 54 After two days, M.B. and K.B. returned home to stay with Melissa, and the defendant left the home to stay with Buttry. Melissa testified that the defendant had no objection to staying at Buttry's house. Buttry testified that, at that point, they had not called the police because they "didn't know how to handle this." The defendant stayed at Buttry's house the next three nights: Friday night, Saturday night, and Sunday night. According to Buttry, during this time, the defendant stayed in one of her spare bedrooms and "journaled." Buttry was not home a lot during this time because she spent time with her brother, who was dying. Melissa testified that the defendant continued to call or text her from Buttry's house.

         ¶ 55 Buttry testified about a conversation that she had with the defendant Saturday evening. Buttry did not "really remember much" except that she remembered telling him that he needed to let them know what all he had done so that M.B. could get counseling. She remembered the defendant then calling Melissa and, while shaking, "started telling her what he had done." She could not remember what he specifically told Melissa on the telephone but testified that he was shaking and that she could tell he was divulging. She got up and left the room during the telephone conversation.

         ¶ 56 Melissa testified about getting the telephone call from the defendant that Saturday evening. She said, "He called and told me that he wanted to be honest with me and tell me a-things like what the froggy game meant, and that he had, indeed, been touching both the girls." She said that he admitted "that he had been sticking his fingers in the girls' bottoms and their girl parts" at "every chance he got." When asked why she did not go to the police at that point, she testified, "I wanted to protect my girls, but I love my husband."

         ¶ 57 The next day, Sunday, April 3, 2011, Buttry and her husband took the defendant to see Pastor Church. She told the jury that this was her idea. On cross-examination, she admitted that she wanted the pastor to hear the defendant's confession because she wanted to make sure that a third party heard the confession before they went to the police. She added, however, that this was not her "heart motive, " which was to see whether it was possible that the defendant could get counseling. According to Detective O'Neill, when he interviewed Melissa, she told him, "Once I had that confession and he is locked in, it wasn't just me or my mom against him or anything. You know, we had our outside source with our pastor, so that way whenever I go to the cops, he can't deny it." During her testimony, Melissa denied making this statement to the detective but admitted that she felt better knowing that it was not just her and her mother who had heard the defendant's confession.

         ¶ 58 The pastor testified that he got a call from the Buttry family asking him to meet them at the church that afternoon. They met in the church's coffee shop. Buttry told the pastor that they had a serious situation in their family and that the defendant needed to share what had happened. According to the pastor, the defendant looked at him and said "since my girls were one-year-old I have been abusing them in the worst possible way." No one provided the pastor with any details of the abuse. Pastor Church described the defendant's demeanor as "[s]olemn, sincere." He testified that they spent 15 minutes praying and that he felt his role was to minister to them about God's love. According to the pastor, the entire meeting lasted 15 to 20 minutes.

         ¶ 59 Sometime after the meeting, the pastor called Buttry and told her that he was obligated to "take this to the legal authorities" and that he wanted to confirm that they were planning on doing that. He testified that he was insistent that they let him know that they went to the authorities by Monday morning.

         ¶ 60 Melissa testified that, after the defendant's meeting with their pastor, the defendant sent her a text message stating that everything went well with the pastor, that he was on his way into work, and that he would talk to her later. On cross-examination, she testified that, later that Sunday evening, the defendant called her on his way back from work and told her that, after thinking about an episode of 48 Hours Mystery that he had recently watched on television, he no longer believed that he had abused his daughters.

         ¶ 61 Melissa told the jury about a nightmare that M.B. had that Sunday night as follows:

"[M.B.] woke up from a nightmare, which was not unusual, but this time instead of just comforting her, I-I asked her what was wrong, and she kept pointing to a tent that they had in their room, and I asked her what was wrong with the tent, and she said that daddy had pushed her down in that tent, and I said, well, did he help you up. She said, no, he did not, and I-so, I asked her what did daddy do, and she told me daddy had hit her and wouldn't let her up, and said that she was dumb, stupid, ugly."

         ¶ 62 According to Melissa, she confronted the defendant about M.B. claiming that he had pushed her into the tent and had told her that she was dumb, stupid, and ugly. She testified that he admitted doing it and told her that "it turned him on" and "that afterwards he would have them pleasure him in some way."

         ¶ 63 The next day, Monday, Buttry and Melissa took M.B. and K.B. to Dr. Hill for examinations. Buttry left during the middle of the examinations. She testified that she called the defendant's boss, drove to his place of employment, picked him up, and drove him to the police station. She told him that the pastor had given them 24 hours to get him to the police station.

         ¶ 64 On Monday, April 4, 2011, Officer Michael Beaber with the Alton police department was assigned to desk duties at the police station. He told the jury about the defendant walking into the police station that day, approaching his desk, and calmly telling him that he wanted to turn himself in for molesting his two daughters for the last couple of years. Officer Beaber testified: "[H]e goes into telling me that basically in the last couple of years his three year old daughter [M.B.], he has on approximately 30 occasions stuck his finger in her vagina and anus and on a couple occasions made her perform oral sex to him, and he said with his two year old daughter [K.B.] he has done the same thing approximately 15 times, stuck his finger in her anus and vagina but he said he didn't make her perform oral sex on him." The officer testified that "it was an unusual case where somebody walked in and to basically confess." He described the defendant's demeanor as nervous but cooperative.

         ¶ 65 Officer Beaber arrested the defendant, contacted the child abuse hotline, and notified the Department of Children and Family Services (DCFS) of the incident. At that point, Detective Michael O'Neill took over the investigation.

         ¶ 66 Dr. Hill testified about her examination of M.B. and K.B. that day. She examined M.B.'s pelvic region and did not find any trauma. M.B.'s physical examination was normal for a child her age, which, the doctor testified, was "most common with sexual abuse." She added that "[i]n most cases of sexual assault there [are] no visible findings." She also examined K.B., and her examination was normal as well. She again testified that a normal examination "is expected." She testified that, during this visit, Melissa appeared "to be tearful on multiple occasions, heaving, looking to me devastated and upset, repeatedly crying."

         ¶ 67 While at the doctor's office, Melissa received a telephone call from Detective O'Neill. Detective O'Neill told her to bring the children to a child advocacy center after the doctor's appointment, where they were to be interviewed by forensic interviewer Kim Mangiaracino.

         ¶ 68 Mangiaracino told the jury about her forensic interview of M.B. Mangiaracino described the protocol that she used for conducting a forensic interview of a child and testified that she had training on the protocol. Only she and M.B. were in the room during the interview. She testified that she conducts her interviews in a room with a two-way mirror through which investigators, DCFS, and/or the prosecutor can view the interview. The person who brings the child to the interview waits in a waiting room during the interview.

         ¶ 69 Mangiaracino stated that M.B. was three years old and that, in her experience, she could interview a child that age for about 15 minutes due to the child's limited attention span and ability to communicate. She testified that children M.B.'s age can answer "who did something, and what they did, and outside of that it's above-beyond their ability usually." She believed that where, when, and the number of times were typically outside a three-year-old's ability to answer with accuracy. She said that M.B. seemed to be an average three year old.

         ¶ 70 A video recording of Mangiaracino's interview of M.B. was admitted into evidence and played for the jury. Prior to the interview, Mangiaracino knew that there were allegations that M.B.'s father had sexually abused her. During her testimony, she described M.B.'s statements during her interview as including, among other things, motioning toward her private area and stating that her daddy touched her "pee-pee." Mangiaracino testified that she also attempted to interview K.B., but ended the interview after five minutes or less, determining that K.B. was too young to communicate.

         ¶ 71 Melissa testified that later that day, she found a letter handwritten by the defendant dated April 2, 2011. The letter was in the room at Buttry's house in which he had been staying prior to his arrest.

         ¶ 72 Detective O'Neill testified that, following the children's forensic interviews, he talked with Melissa "to kind of get some type of context for *** what [M.B.] actually had said, " adding that K.B. "was not extremely verbal" so they did not "get any significant information from her at the time." He testified that, after he spoke with Melissa, he conducted a videotaped interview of the defendant. The defendant's videotaped interview was admitted into evidence and played for the jury.

         ¶ 73 During the interview, the defendant confessed to molesting both of his children. Detective O'Neill testified that the defendant was very remorseful and sad. He indicated that he was sorry for what he had done and wanted to get help. He admitted that if his actions had not been discovered, he would have continued until the children's verbal skills developed and they could reveal what he was doing. He stated that he was molested by his mother but did not remember it.

         ¶ 74 The next day, Tuesday, April 5, 2011, Detective O'Neill conducted videotaped interviews of both Melissa and Buttry. These interviews were not admitted into evidence or played for the jury. However, at the conclusion of Melissa's interview, while the video camera was still recording, Melissa asked Detective O'Neill if she could say good-bye to the defendant. Detective O'Neill escorted the defendant to a room where Melissa spoke to him. The video camera recorded Melissa saying good-bye to the defendant and telling him that she had found the letter in the spare bedroom at Buttry's house. She testified, "he basically said he was sorry for what he had done in that letter. So, I told him I would show that to the girls so that-that they would know that he was sorry for what he had done." She kept the letter in her possession when she left the police department that day. The video recording of Melissa's conversation with the defendant was admitted into evidence and played for the jury.

         ¶ 75 During his investigation, Detective O'Neill obtained a search warrant to search the defendant's laptop computer and cell phones. A forensic analysis of those items revealed "nothing significant of evidentiary value."

         ¶ 76 After the defendant was in custody, Melissa received a letter from him dated April 12, 2011. In the letter, he stated that he hoped the family did not think too badly of him and that he wanted her to explain that he was sorry. Melissa sent a reply letter, telling him that her family was not judgmental, would see it as sin, but would "love him apart from that." In May 2011, she received a Mother's Day card from the defendant. Inside the card, he wrote, "In spite of everything you have done, wrongly accused me with, and manipulated me into believing. Because I did Not hurt our girls in that way at all. You still remain a wonderful mom." He wrote that he believed that she was a "great mom" to their girls and that ...


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