Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

People v. Wills

Court of Appeals of Illinois, Second District

December 21, 2017

JOSIAHA R. WILLS, Defendant-Appellant.

         Appeal from the Circuit Court of Ogle County. No. 14-CF-26 Honorable John C. Redington, Judge, Presiding.

          JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justice Burke concurred in the judgment and opinion. Justice McLaren specially concurred, with opinion.



         ¶ 1 Defendant, Josiaha R. Wills, appeals from his convictions of four counts of predatory criminal sexual assault of a child (720 ILCS 5/11-1.40(a)(1) (West 2012)). He contends that the court's hearsay-rule exclusion of a witness's testimony concerning an argument between defendant and the alleged victim, his daughter A.W., was first-prong plain error. We affirm.

         ¶ 2 I. BACKGROUND

         ¶ 3 Defendant was charged by information with the four counts of predatory criminal sexual assault of a child of which he was ultimately convicted. As amended, count I charged that defendant "committed an act of sexual penetration with A.W., who was under 13 years of age, in that [defendant] put his penis in the mouth of A.W." The amended count II charged that defendant "put his penis in the anus of A.W., " the amended count III charged that defendant "put his mouth on the vagina of A.W., " and the amended count IV charged that defendant "put his finger in the vagina of A.W." The State alleged that each of these offenses had occurred between May 1, 2013, and January 31, 2014.

         ¶ 4 Defendant had a jury trial. The State had six witnesses: (1) A.W., who was nine years old when the trial took place, (2) Merry Demko, M.D., who conducted a physical examination of A.W., (3) Gregory Welenc, a school-bus driver who had driven A.W. and her siblings to school, (4) Kelly Albrecht, A.W.'s school counselor, (5) Kevin Wills (Kevin), defendant's father, and (6) Traci Mueller, a forensic interviewer at Shining Star Children's Advocacy Center (Shining Star). The defense called 10 witnesses, of whom 7 had not previously appeared. Those seven were (1) Arma Johnson, an investigator for the Department of Children and Family Services (DCFS), (2) Rita Taconna, a sign-language interpreter, who testified as an expert in American Sign Language (ASL), (3) Airia Burgett, a one-time neighbor of defendant and his children, (4) Melodee Hoffman, who had been defendant's girlfriend, (5) Jason White, the Mount Morris chief of police and defendant's acquaintance, (6) Christine Wills (Christine), defendant's sister and neighbor at the apartment that defendant shared with Kevin, and (7) defendant himself.

         ¶ 5 At the trial, A.W. was the State's first witness. She testified that her birthday was May 5; she was not sure what year she was born, but she was nine years old and in fourth grade. She had two brothers, B.W., age 10, and M.W., age 6. She was then living with a foster parent in Sycamore with whom she had gone to live part of the way through her third-grade year. Before then, she had lived with her paternal grandfather, her brothers, and defendant in a one-bedroom apartment. The children slept in the bedroom, with defendant sleeping in a sleeping bag on the floor. However, A.W. also said that defendant and her grandfather both slept in beds they had in the living room.

         ¶ 6 A.W. had difficulty communicating with defendant because he was deaf and used sign language, which she had never learned well. B.W. was a much more fluent signer, so he often interpreted for her.

         ¶ 7 During the first part of her third-grade year, A.W. had regular appointments to leave class to see "Mrs. A."-which was how she referred to Albrecht. January 31, 2014, had been unusual because Albrecht took her out of class twice. The second time she went to see Albrecht, she wrote a "paper" about "what [her] dad did, " which was admitted in evidence. It said:

"he makes me suck his weniey [sic]
he liks my huehee [('hoo hoo')]"

         A.W. told Albrecht that "wiener[s]" and "hoo-hoo[s]" were the parts that boys and girls use to "[p]ee."

         ¶ 8 A.W. testified about the abuse itself. She said that defendant would come into the living room, pull his shorts down, sit on the bed, and make her kneel to "suck his wee-wee." One time that this happened, she felt so disgusted that she threw up. Sometimes something yellow and white came out of his "wiener" when it was in her mouth. He also made her do the same thing in the bedroom, but lying front-to-front on the floor so that he could also "lick[ her] hoo-hoo." He sometimes "would pull his wiener back and forth through [her] bottom." This was "disgusting and very hurtful" and, when he did it, she would kick defendant or elbow him. He also had sometimes taken his hand and "rub[ed] it on [her] hoo-hoo." This had happened when her brothers were sleeping in the bedroom with her. She had been "[s]even through eight" when these things happened, was in third grade, and was living in the apartment with defendant and her grandfather.

         ¶ 9 A.W. testified that defendant said that he would kill her if she told anyone what happened. She demonstrated the gestures that defendant used to make this threat, which seemed to have been ordinary miming gestures-he pointed at himself, drew his finger across his throat, and then pointed toward her.

         ¶ 10 On cross-examination, A.W. said that all of the contact with defendant that she had described took place at night when the lights were off. Defendant had also made her watch "sex" videos-she spelled this out, S-E-X-on his phone.

         ¶ 11 Defense counsel asked A.W. if she knew someone named Joe Jackson; she responded that Jackson had been married to her mother. She agreed that Jackson had sexually abused her. It happened once only; Jackson took her into the bathroom and made her "suck his wienie." She thought that the abuse by Jackson occurred after the abuse by defendant. It happened when she was staying with her mother in the house that her mother shared with Jackson.

         ¶ 12 Demko testified after A.W. She explained that she was a family physician at KSB Hospital and a volunteer physician at Shining Star. She had conducted a complete physical examination of A.W., finding nothing abnormal. However, children who have been sexually abused typically show no physical evidence of the abuse. Demko testified that such normal findings were typical even in cases with pregnant victims, in which the evidence of abuse is conclusive.

         ¶ 13 Welenc, the bus driver, was the third witness. He said that he drove A.W. and her brothers to school for part of A.W.'s third-grade year. On January 31, 2014, A.W. and her brothers were being particularly loud and disruptive on the bus, so he had them stay aboard when he arrived at the school, to ask them why they were misbehaving. A.W. told him, " 'It's because our life sucks. We live with our dad.' " Welenc noticed that A.W. seemed to be about to cry as she answered, so he suggested to the three that they could sit near him on the return trip to talk and joke around. He let the three off and drove the bus back to the garage, but the interaction "really bothered [him]." He decided that he needed to tell A.W.'s school counselor what he had heard, so he immediately drove his car back to the school, sought out A.W.'s counselor, and reported the conversation.

         ¶ 14 Albrecht's testimony picked up where Welenc's left off. She had come to know A.W. after A.W.'s third-grade teacher gave A.W. a referral for counseling services. Albrecht had seen A.W. once a week and 13 or 14 times before January 31, 2014. She had not planned to meet with A.W. on January 31 until Welenc spoke with her, but, based on what he said, she pulled A.W. from class. In the counseling office, Albrecht told A.W. what Welenc had said and asked her what was going on. A.W. answered that her father " 'never let[ them] do anything fun, and he yell[ed] at [them] and he [did] mean things to [them].' " When Albrecht asked what the mean things were, the first thing that A.W. said was, " 'If he knew I told you, he'd slap me.' " But Albrecht persuaded A.W. that it would be safe to talk. A.W. then told her, " 'At night when my brothers are asleep, he comes in and does bad things to me.' " Albrecht stopped the conversation then and went to her "principals." Together, they decided that they needed more information about the "bad things" before anyone called DCFS.

         ¶ 15 Albrecht and the director of counseling, Shannon Cremens, met again with A.W. later that day. Albrecht asked A.W. to explain more specifically what "bad things" her father had done, and A.W. asked if she could write them down. Albrecht said that she could, and that was when she wrote that "he" licked her "hoo hoo" and made her suck his "wieniey." Albrecht could not make sense of a word that appeared in A.W.'s handwriting as "huehee, " so she asked A.W. what it was. A.W. whispered to her, " 'It's the word for girls' private parts.' " Albrecht left A.W. with Cremens and went to call DCFS.

         ¶ 16 On cross-examination, Albrecht conceded an inaccuracy in the testimony she had just given; she and her "principals" had not merely decided that they needed more specifics from A.W. Instead, her initial call to the DCFS hotline was rejected because the information was insufficiently specific. Only then did they decide to interview A.W. further. Albrecht also agreed that during their earlier meetings A.W. had not disclosed anything that suggested abuse.

         ¶ 17 Defendant's father Kevin testified for the State but only to say that defendant's birth date was April 8, 1981, and that the apartment that he had shared with defendant was in Ogle County.

         ¶ 18 Mueller testified after Kevin, describing the set-up for her January 31, 2014, interview of A.W. at Shining Star. The interview room had a microphone and ceiling camera to record interviews and to allow viewing from another room.

         ¶ 19 The State played the recording of A.W.'s interview for the jury. A.W.'s disclosures in the interview were essentially consistent with her testimony. As in her conversation with Albrecht, A.W. preferred writing things to saying them when she found them hard to discuss. She wrote on a large pad or flip chart that Mueller used as an interviewing tool.

         ¶ 20 A.W. said that the last incident of abuse had occurred just after the family moved back in with her grandfather. Nothing had happened while they were living with Hoffman, but things had happened the previous time that they had lived with her grandfather. All the incidents had taken place in the bedroom except that, when her grandfather was in the hospital, defendant had once taken her into the living room. She could not say how many times he had made her "suck his wiener, " but he had put his "wiener" in her "butt" 10 times. He had also put his mouth on her "boobs."

         ¶ 21 Mueller asked if anyone else had ever done things to her that were like what her father had done. A.W. said that Joe Jackson had, and she described a single incident in terms similar to those in her testimony. Mueller asked her if she had ever told anyone else about that, and she said that she had not; she had told her mother that Jackson had pulled her hair, but that was all. She was emphatic that Jackson was not with her mother anymore.

         ¶ 22 During the first part of the interview, A.W. had described her interactions with defendant in such a way that Mueller had not realized that defendant was deaf. Mueller did not learn that he was until she left to check whether she needed to ask any more questions. When she returned, she said that she had spoken with "Jason White, " who had told her that A.W.'s father was deaf. She asked A.W. how she communicated with defendant, and A.W. said, "sign language." A.W. said that defendant never communicated through spoken words, but that she could sign a little. She demonstrated a few signs for words and as many letter signs as she could remember for Mueller.

         ¶ 23 Mueller asked A.W. how she got along with her grandfather. A.W. answered that he kept them healthy and fed them when her father was over at his friend's place smoking and doing drugs. Mueller asked her who defendant's friend was, and she said, "Jason White."

         ¶ 24 Defense counsel cross-examined Mueller after the recording had finished, asking her whether someone named "Jason White" had driven A.W. to Shining Star. Mueller agreed that Jason White, the chief of police of Mount Morris, had brought A.W. to the interview. The State rested after the cross-examination of Mueller.

         ¶ 25 The defense opened its case by recalling A.W.; the questioning focused on instances in which A.W. had said that Jackson was her only abuser. A.W. denied having told Albrecht that everyone had made a big mistake in thinking that her father had done things that Jackson had actually done. She remembered meeting Arma Johnson, the person who had driven her to see Demko, but denied having spoken to Johnson about Jackson. However, when the question was rephrased, she said that she might have told Johnson that Jackson was her actual abuser, but she was not certain about what she had said. She remembered talking to Mueller about Jackson, she was not sure if she had talked to her one-time neighbor Airia Burgett about Jackson, and she was certain that she had not talked to Hoffman about Jackson.

         ¶ 26 On cross-examination, A.W. agreed that, between the time she talked to Mueller and the time she went to see Demko, she had talked to her "Aunt Christine." Christine had told her that she was wrong about defendant; Jackson was the person who had abused her.

         ¶ 27 Defendant next called Albrecht, who agreed that she had talked with A.W. while she kept A.W. company when A.W. was waiting to go to see Demko. During their conversation, A.W. told Albrecht that everyone had misunderstood her; Jackson was the one who had abused her, not defendant.

         ¶ 28 Johnson, whom the defense called next, was a DCFS investigator. In early February 2014-possibly on February 3-she picked up A.W. to take her to see the doctor. No real conversation occurred during the ride, but A.W. told her that there had been a mistake:

"[A.W.] *** told me when I picked her up, she said that you guys have it wrong, everything that I said, you thought it was about my dad, but it was actually about Joe Jackson, and that was the extent of the conversation."

         ¶ 29 Johnson had first met A.W. on January 24, 2014, while she was investigating a claim that defendant had medically neglected and inadequately supervised A.W.'s brothers. As part of that investigation, Johnson met with M.W. at Kevin's apartment. A.W., B.W., and Kevin were present. A.W. joined in the discussion while Johnson was interviewing M.W.; Johnson had the impression that A.W. thought that she was speaking in M.W.'s defense. Johnson thought that ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.