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People v. Rottau

Court of Appeals of Illinois, Fifth District

March 30, 2017

GARRETT ROTTAU, Defendant-Appellant.

          Rehearing denied April 27, 2017

         Appeal from the Circuit Court of Madison County, No. 08-CF-1756; the Hon. Richard L. Tognarelli, Judge, presiding.

          N. Scott Rosenblum, Hannah Zhao, and Jessica M. Hathaway, of Rosenblum, Schwartz, Rogers & Glass, P.C., of St. Louis, Missouri, for appellant.

          Thomas D. Gibbons, State's Attorney, of Edwardsville (Patrick Delfino, David J. Robinson, and Patrick D. Daly, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

          Panel JUSTICE GOLDENHERSH delivered the judgment of the court, with opinion. Justices Cates and Overstreet [*] concurred in the judgment and opinion.


         ¶ 1 After a jury trial in the circuit court of Madison County, defendant, Garrett Rottau, was convicted of four counts of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2008)) and sentenced to 32 years (8 years on each count) in the Department of Corrections, to be followed by 3 years of mandatory supervised release. The issues raised in this direct appeal are (1) whether the trial court erred in admitting the victim's out-of-court videotaped statements through Jessica Buhs, (2) whether the trial court erred in admitting the victim's out-of-court statement through the testimony of Stephanie Whitaker, (3) whether the trial court erred in prohibiting defense counsel from cross-examining the victim regarding certain entries made in notebooks, and (4) whether the trial court erred in sentencing defendant to 32 years in prison. We affirm and remand in part.

         ¶ 2 FACTS

         ¶ 3 I. PRETRIAL

         ¶ 4 Prior to trial, a hearing pursuant to section 115-10 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-10 (West 2008)) was conducted to determine whether certain out-of-court statements were admissible. The evidence adduced at that hearing showed that the allegations defendant was having sex with the victim first surfaced on March 25, 2008, when the victim was 11 years of age. On that day, the victim's mother found a note the victim wrote that stated, "I am very sad right now. [Defendant] did it with me and my mother." Mindy Gutierrez, the victim's stepmother, testified that the victim was at her house for visitation when the victim received a phone call from her mother, Elizabeth, about the note. While Gutierrez did not see the note, she understood it indicated that defendant was having sex with both the victim's mother and the victim.

         ¶ 5 Initially, the victim denied anything was going on between her and defendant. However, 10 minutes later, the victim told Gutierrez she was having both oral and vaginal sex with defendant. As a result of the disclosure and a subsequent examination by a physician, the victim was scheduled for an interview with the Madison County Child Advocacy Center (CAC).

         ¶ 6 The night before the initial CAC interview, the victim recanted. When confronted about why she would lie, the victim explained defendant caught her masturbating and she was embarrassed. According to Gutierrez, the victim said she was "destroying her mother's life because her mother didn't have a place to stay after this came out. Her mom was sleeping in her car and she felt that she destroyed her mother's life." Gutierrez testified the victim went to the CAC interview and, as far as she knew, the victim denied anything sexual had occurred between her and defendant.

         ¶ 7 After the allegations of sexual abuse surfaced, the victim went from having visitation with her father and Gutierrez to living with them full time. Defendant was to have no contact with the victim. Gutierrez said after the first CAC interview, things went mostly back to normal with the victim playing softball and hanging out with friends. The victim's mother would call and talk to the victim and her brother via phone. During one conversation, Gutierrez was walking past the victim's brother, who was supposedly talking to his mother, when she heard the brother say, "I love you too Garrett." When the phone call ended and the children came downstairs, Gutierrez confronted them about talking with defendant. Initially, both children denied it, but later admitted they talked to defendant after their mother put him on the phone.

         ¶ 8 Gutierrez and the victim's father then told the victim the lying needed to stop. Ultimately, the victim broke down, started crying, and admitted defendant did things to her. She admitted to having both vaginal and oral sex with defendant. Gutierrez and the victim talked for approximately two hours. When asked about specifics, Gutierrez responded, "I don't know where to start." Gutierrez then testified the victim told her about instances which occurred in the basement when defendant would send the victim's brother upstairs, a time when they had sex after pulling over on the side of the road, and instances of oral sex when defendant would make her swallow. The victim told Gutierrez the sex started in late September or early October 2007. Gutierrez said she and the victim discussed the matter approximately 20 or more times. The abuse was reported to the Department of Children and Family Services, and another CAC interview was scheduled.

         ¶ 9 Jessica Buhs, a former forensic interviewer and assistant director at CAC, testified about the two interviews she conducted with the victim. Both interviews were audio and video recorded. During the first interview, the victim denied any sexual conduct occurred. Buhs recalled that during the second interview, the victim disclosed "fondling of the breasts, vagina, buttocks. She described digital penetration of her vagina. She described penis to mouth contact; mouth to the vagina contact; and penis to vagina conduct." The parties agreed to provide the trial court with copies of both CAC interviews and allow the court to review those tapes outside their presence.

         ¶ 10 Buhs conducted the first interview of the victim on March 28, 2008. During the interview, the victim said she was at CAC because she blamed something on defendant. The victim said she was lying and that defendant had not done anything to her. She said she lied because defendant had caught her "fingering herself" and she was embarrassed. The victim said she learned about "fingering" from her friends with whom she made jokes about it. She equated fingering with what a male does when he "jerks off." Buhs and the victim discussed the note which was the impetus behind the investigation of defendant.

         ¶ 11 The victim said she found a sex toy on a recliner under the covers. She freaked out about it and threw it in her bedroom. She said she did not know what it was but learned it was a sex toy by a description on the back of the device. The victim's mom asked her what the note meant, and then her mom freaked out, claiming her life was ruined and defendant would go to prison for no reason. The victim said the note was a giant lie. The note she wrote was completely different from what she actually meant. The victim was unable to articulate what she really meant. Buhs told the victim it appeared to her that something was missing from the story.

         ¶ 12 The victim started crying and said she was trying to tell the truth. The victim said she had a crush on defendant and it was possible this was the reason she wrote the note. When she found the sex toy, she got sad because she thought defendant might have something to do with it. The victim noted that even her friends had a crush on defendant and that he is not a bad-looking guy. At the end of the interview, the victim asked Buhs, "Does it sound like I'm telling the truth?"

         ¶ 13 The second interview was conducted on April 21, 2008. During that interview, the victim told Buhs she previously lied and now claimed defendant did do something to her. The victim recalled the first time anything sexual occurred between her and defendant was about a year earlier after defendant got drunk watching a UFC fight. Defendant came into her bedroom, which was in the basement, and got in bed with her and tapped her on the back. He then took her out of the bedroom and onto a nearby couch where he touched her "private parts" (vaginal area), her "butt, " and her "chest." He touched the top of her clothes. She told him to stop and he did. The next night he came back and touched her underneath her clothes. He then pulled down her pants and his pants and stuck his "private" in her "private." She showed Buhs on a diagram what she meant by "private, " which was her vagina and his penis.

         ¶ 14 She said defendant did not beat her or hurt her. She said it hurt initially, but then she got used to it and it started to feel good. She knew it was wrong, but she started liking it. They eventually named his penis "Sponge Bob" after the victim's favorite television show and her private "Sandy, " who is Sponge Bob's best friend in the cartoon. She said defendant sometimes used a condom and other times he would ejaculate in the corner of her bedroom. He would wipe it off the floor or rub it into the carpet. Sometimes when they had sex, her mother was home, and sometimes she was not. They had sex in her brother's bedroom on occasions when her mother was out of the house. She said they had sex in her mother's bedroom more than five times.

         ¶ 15 The victim also said defendant touched her with his hands, stuck his penis in her mouth, and would "shoot sperm" in there. He made her swallow it. She estimated this happened approximately five times. She also said defendant would put his mouth on her vagina, an act that occurred more than five times because he liked doing it. Defendant told the victim not to tell anyone about their sexual relationship and called it "their little secret." He told her if anyone found out, he could go to jail.

         ¶ 16 She recalled that the relationship started unraveling after she found a vibrator in a recliner. She drew a face with a frown on a note that stated defendant was having sex with her mom and not her. Her mom found the vibrator and the note in her room. According to the victim, her first sexual encounter with defendant occurred right before she started fifth grade. At the time of the second interview, she was in sixth grade. It happened two or three times per week until she was removed from the home.

         ¶ 17 The victim also told Buhs about two times she had sex with defendant in her mother's car. The incidents occurred on two separate occasions when defendant took her to St. Louis to purchase cigars at "Dirt Cheap." They were in the back seat, defendant told her to pull her pants down, and he bent her over and put his private in her private. Each time, defendant went outside the car and ejaculated. The victim also discussed having sex with defendant in a hotel room in Branson, Missouri, during a vacation when her mother took her younger brother swimming.

         ¶ 18 In response to Buhs's question as to why she lied, the victim explained that she lied during the first CAC interview because defendant "put things in her head, " but now she was telling the truth because she was afraid defendant would pick younger girls and do to them what he did to her. The victim said she wanted defendant to go to jail because she does not want him to do it to anyone else, but, on the other hand, she did not want him to go to jail because she has known him her whole life.

         ¶ 19 In addition to the two CAC interviews, the trial court allowed the victim's out-of-court statement to Stephanie Whitaker, a social worker from Children's Hospital in St. Louis, who interviewed the victim on March 25, 2008, after the victim was sent to Children's Hospital from Alton Memorial Hospital. The trial court determined that "the time, content, and circumstances provide sufficient safeguards for reliability pursuant to 725 ILCS 115-10." Thus, the trial court allowed Whitaker's report to be admitted into evidence at trial.

         ¶ 20 II. TRIAL

         ¶ 21 A. STATE'S CASE

         ¶ 22 1. TESTIMONY

         ¶ 23 The victim, age 18 at the time of trial, testified she graduated from high school with a 3.75 grade point average and was playing softball on a scholarship at a local community college. A couple of weeks after her tenth birthday, defendant came into her bedroom, got her out of bed, took her to an adjoining room, sat with her on a couch, and started touching her on her chest and crotch on the outside of her clothes. She told defendant to stop, and he did. The following night defendant came into her bedroom and started touching her underneath her clothes. He took off both her pants and his pants and put his penis in her vagina. Defendant then went into the corner of her bedroom and ejaculated. The victim said it hurt at first, but she got used to it.

         ¶ 24 The victim explained that her mother and father divorced when she was four years old. At the time of the abuse, she lived primarily with her mother and defendant, her mother's boyfriend, along with her younger brother. Her mother started dating defendant when the victim was nine. The week after she turned 10, she started her period. The victim was unaware what was happening and was scared when she found blood in her underwear. She ran screaming into her mother's room, and her mother explained what she was experiencing. Defendant heard the conversation. The abuse started about a week later.

         ¶ 25 During this time, the victim spent two nights per week at her father's house. The victim estimated she had sex with defendant two or three nights per week. It usually occurred in her room in the basement, either after school before her mother came home from work or when defendant was supposed to be tucking her into bed. He would normally ejaculate in the corner of her bedroom on the carpet.

         ¶ 26 The victim also testified about other sexual acts. She said defendant would often put his fingers inside of her, usually while she was underneath a blanket. Defendant put his penis in her mouth and forced her to swallow after he ejaculated. Defendant performed oral sex on the victim. She said defendant performed oral sex more on her than she did on him. The victim further recalled ...

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