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People v. Branch

Court of Appeals of Illinois, Fifth District

August 1, 2017

JAMES R. BRANCH, Defendant-Appellant.

         Appeal from the Circuit Court of Saline County. No. 11-CF-176 Honorable Todd D. Lambert, Judge, presiding.

          Attorneys Michael J. Pelletier, State Appellate Defender, Thomas A. Lilien, Deputy for Defender, Kim M. DeWitt, Assistant Appellate Defender, Josette Skelnik, Appellant Supervisor, Office of the State Appellate Defender, Second Judicial District, One Douglas Avenue, Second Floor, Elgin, IL 60120

          Attorneys for Appellee Michael Henshaw, Saline County State's Attorney, Saline County for Courthouse, Harrisburg, IL 62946; Patrick Delfino, Director, David J. Appellee Robinson, Deputy Director, Luke McNeill, Staff Attorney, State's Attorneys Appellate Prosecutor, 725 South Second Street, Springfield, IL 62704

          JUSTICE CATES delivered the judgment of the court, with opinion. Justices Goldenhersh and Overstreet [*] concurred in the judgment and opinion.



         ¶ 1 Defendant, James R. Branch, was convicted after a jury trial of three counts of predatory criminal sexual assault of a child and was sentenced by the circuit court of Saline County to 15 years' imprisonment on each count, to be served consecutively. Defendant argues on appeal that the State failed to prove him guilty of one count of predatory criminal sexual assault in that there was no evidence of digital penetration. He also asserts he was denied a fair trial because of prosecutorial misconduct and ineffective assistance of counsel. He further contends he is entitled to a Krankel hearing because he alleged in his prepared statement in allocution that he was denied effective assistance of trial counsel, but the court made no inquiry into the allegations. See People v. Krankel, 102 Ill.2d 181, 464 N.E.2d 1045 (1984). As a supplemental argument, defendant argues the court erred in failing to suppress a statement he allegedly made to a detective upon being advised he was under arrest. We affirm in part and remand in part.

         ¶ 2 Between the dates of May 1, 2010, and May 4, 2011, L.M.D., the victim, was allegedly subjected to various sexual acts in a trailer, where defendant resided. At the time of the alleged incidents, L.M.D. was seven or eight years old. Defendant was ultimately charged with one count of performing an act of cunnilingus upon the victim, one count of placing his finger in her vagina, and one count of having the victim perform an act of fellatio on him.

         ¶ 3 On May 4, 2011, L.M.D. was removed from her parents' home because of the parents' drug usage and because they were allowing a family member who was a registered sex offender to live in their home. DCFS placed L.M.D. in the home of a woman named Cheryl, who had previously lived with L.M.D.'s father for 18 years but had never married him. Cheryl and L.M.D.'s father had a son, the victim's stepbrother, who was then 27 years old. Because of Cheryl's long-term relationship with the family, she had known L.M.D. since she was a baby. At the time L.M.D. was placed with Cheryl, she was married to another individual and had two daughters close in age to L.M.D.

         ¶ 4 A couple of weeks after L.M.D. was placed with Cheryl, L.M.D. was taking a bath with one of Cheryl's daughters. L.M.D. told Cheryl's daughter that defendant made L.M.D. play with him and had rubbed his thing against her. Cheryl overheard the conversation and stopped it. She then called L.M.D.'s caseworker. Cheryl reported that subsequent to Cheryl reporting the statements made by L.M.D., Cheryl also noticed that L.M.D. started acting out sexually with pillows and blankets. Prior to L.M.D. being placed in Cheryl's home, she also testified that she had seen L.M.D. and defendant around town together. Cheryl further related that defendant, on several occasions, had previously brought L.M.D. to Cheryl's house to play with her daughters. At no time did L.M.D. ever mention any abuse, and she always seemed fine around defendant. Cheryl stated that defendant did for L.M.D. what her parents would not, and she agreed that the living conditions in L.M.D.'s home were "pretty terrible."

         ¶ 5 After conducting several interviews with L.M.D., Department of Children and Family Services (DCFS) investigators believed L.M.D.'s statements were credible and consistent with the information obtained from Cheryl. L.M.D. testified that defendant often bought her toys, clothes, shoes, and food. He would come to her house, and they would ride bicycles to the park, the pool, fast food restaurants, and Walmart. L.M.D. further testified that defendant also took her to his trailer, where they would watch "dirty stuff" on television. She also related various sex acts he performed on her, or had her do to him, while they were at his trailer. She claimed that she told him to stop, but he would not do so, and that no one else touched her this way. There was no physical evidence corroborating L.M.D.'s allegations of sexual abuse.

         ¶ 6 Defendant denied the allegations against him but admitted he had taken L.M.D. to various places around town. He confirmed that he bought things for her because he felt sorry for her and because he was trying to take care of her. He related that he had known L.M.D. since she was two years old and felt somewhat responsible for her. According to defendant, L.M.D.'s parents did not spend any money on her and often came to him for food or money. The parents lived in a trailer near him, and they were the only people he socialized with other than his own family. He also admitted to having had a sexual relationship with both parents.

         ¶ 7 The detective and investigator who interviewed defendant claimed he admitted to having L.M.D. alone at his trailer. Defendant countered he never made such a statement to them or to anyone and testified he never took L.M.D. alone to his trailer, in spite of what others said. Defendant further claimed L.M.D. could not have watched pornographic movies at his trailer because he had not had any electricity there since 2007. He did see L.M.D. watching pornographic movies at her own home, however, while her parents were present. He had also seen the sex offender who was living with them go into L.M.D.'s bedroom and close the door when she was inside the room. L.M.D., however, told investigators that when the offender moved in, she had to give up her bedroom to him and his girlfriend. L.M.D. was then forced to stay in the living room. Defendant also claimed that he had called DCFS about the condition in L.M.D.'s home sometime in 2009, but nothing came of it. The investigator for DCFS had no record of any such contact from defendant. Defendant continued to assert he had never sexually assaulted L.M.D., nor had he done anything inappropriate with any child.

         ¶ 8 The jury chose to believe L.M.D. and returned guilty verdicts on all three counts. Defendant subsequently was sentenced to consecutive 15-year terms of imprisonment. Defendant appeals his conviction claiming several instances of prosecutorial misconduct and ineffective assistance of counsel, which denied him a fair trial. He also contends one count of predatory criminal sexual assault should be reduced to aggravated criminal sexual abuse because the evidence failed to prove he digitally penetrated the victim's vagina. ...

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