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.
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 ...