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People v. Darr

Court of Appeals of Illinois, Third District

January 10, 2018

DAVID C. DARR, Defendant-Appellant.

         Appeal from the Circuit Court of the 10th Judicial Circuit, Tazewell County, Illinois, Circuit No. 14-CF-153 Honorable Paul P. Gilfillan, Judge, Presiding.

          CARTER PRESIDING JUSTICE delivered the judgment of the court, with opinion. Justices Holdridge and Wright concurred in the judgment and opinion.



         ¶ 1 Defendant, David C. Darr, appeals following his conviction on three counts of predatory criminal sexual assault of a child and two counts of criminal sexual assault. He argues that an accumulation of errors resulted in a fundamentally unfair trial and requests that this court vacate his convictions and remand for a new trial. Alternatively, defendant argues that his pro se posttrial claims of ineffective assistance of counsel warranted a preliminary Krankel inquiry, which the circuit court failed to conduct. Finally, defendant argues that the circuit court erred in imposing the public defender fee without first conducting the requisite hearing on defendant's financial circumstances. We affirm defendant's convictions and sentence and vacate the public defender fee.

         ¶ 2 FACTS

         ¶ 3 In a bill of indictment filed April 17, 2014, the State charged defendant with three counts of predatory criminal sexual assault of a child (counts I to III) (720 ILCS 5/11-1.40(a)(1) (West 2014)) and three counts of criminal sexual assault (id. § 11-1.20(a)(3)).[1] Counts I to III referenced events occurring between December 29, 2006, and December 28, 2012. Count I alleged that defendant knowingly made contact with the vagina of C.J. with his penis. Count II alleged defendant knowingly made contact with the vagina of C.J. with his fingers. Count III alleged defendant knowingly made contact with the mouth of C.J. with his penis.

         ¶ 4 Prior to trial, the State filed a motion to admit other-crimes evidence pursuant to section 115-7.3 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-7.3 (West 2014)). Specifically, the State sought to introduce evidence of defendant's prior conviction for predatory criminal sexual assault of a child committed in 1996. In addition to the certified conviction, the evidence would include the testimony of the victim in that case, J.M.; testimony of Dennis Minton, to whom defendant admitted J.M.'s allegations were true; a written admission by defendant; and a letter written by defendant to the prosecutor in that case further admitting to the offense. The State later orally amended its motion to include testimony from J.S., who would testify that defendant had sexual contact with her when she was seven or eight years old. The court granted the State's motion.

         ¶ 5 The evidence at trial established that C.J. was born on December 29, 1999. C.J.'s mother is Colleen R. Colleen's two sisters (C.J.'s aunts) are Sondra B. and Karen O. In addition to C.J., Colleen has two other daughters and one son. One of the other daughters is defendant's biological child. Colleen and defendant entered into a relationship in 2002 or 2003. Approximately three years later, defendant moved in with Colleen in a house located on North Main Street in North Pekin. Colleen's four children, including C.J., also lived at the house. Defendant's two older daughters from a different relationship-Kayla and Erica-would live periodically at the house.

         ¶ 6 The evidence further established that defendant was born on February 3, 1967. Prior to his relationship with Colleen, defendant was married to Delta V. (also known as Delta Darr). Delta was the cousin of Colleen, Sondra, and Karen. It was through Delta's marriage that the sisters originally knew defendant. Delta has two nieces, J.M. and J.S., who were born in 1984 and 1986, respectively.

         ¶ 7 Sondra testified that she had a close relationship with C.J. Sondra lived in Missouri until C.J. was approximately 12 years old, and C.J. would often visit for weeks at a time. When Sondra moved back to North Pekin, C.J. and her sisters would often spend weekends at Sondra's home. Sondra testified that C.J. had always been an outgoing child and was "happy-go-lucky." When C.J. was 12 years old, however, Sondra began to notice a change in C.J.'s personality. She noticed that C.J. did not like to be around any adults and did not like to play with other children. She preferred to be alone. Sondra described C.J. as becoming "very withdrawn."

         ¶ 8 Toward the end of March 2014, C.J. stayed at Sondra's house during her spring break. March 30 was a Sunday; C.J. was to return to school the next day. Though the plan had been for C.J. to return home that evening, she asked Sondra if she could spend the night and have Sondra drive her to school in the morning. Sondra called Colleen, but Colleen decided that C.J. needed to come home to get ready for school. Sondra testified that she repeatedly told C.J. to get ready to return home, but C.J. continued to procrastinate.

         ¶ 9 C.J. eventually went to the front porch of Sondra's home, where Sondra's sister-in-law, Sherry H., was sitting. Sondra testified that C.J. had been on the porch with Sherry for approximately five minutes when the two came back into the house, C.J. crying. Sondra had never seen C.J. that upset. Sherry told Sondra that they needed to speak privately, so they went to the basement with C.J. Sondra testified that she asked C.J. what was wrong, and that C.J. responded, "Aunt Sondra, I'm scared, I don't want to go home. [Defendant is] messing with me."

         ¶ 10 At this point, defense counsel objected on hearsay grounds. The State responded, "it's [offered] for the effect on the listener and what she did in response to it. [C.J.] will testify to all of this." The court sustained the objection in part, stating:

"With regard to the hearsay objection, the jury will be instructed, just as they were moments ago, any claimed statement by [C.J.] at this point in time is not to be taken by you as the truth of the matter that that occurred for what she said. Rather, that statement is coming in for the limited purpose of showing what impact it had on this witness here.

         As counsel indicated and as other counsel has as well, [C.J.] will be testifying on first hand information allegations later."

         ¶ 11 Sondra reiterated that C.J. told her that defendant "was messing with her." They talked in the basement for approximately 25 to 30 minutes. C.J. pleaded to not be taken home. Sherry called Karen, who then came to Sondra's house. Karen, Sondra, Sherry, and C.J. went to the North Pekin Police Department.

         ¶ 12 Michael Sea of the North Pekin Police Department testified that he was off duty on the night of March 30, 2014. Around 10 p.m., he received a phone call from Karen, who was a friend of Sea's wife. Sea testified, "Karen called me and stated that her niece [C.J.] had *** talked to her and stated that she had been molested." He clarified that Karen had specifically told him that C.J. said defendant had molested her. Sea knew C.J. because she was of similar age to his own daughters and had been to his house several times. He also knew defendant. Sea called Bryon Martin, also of the North Pekin Police Department, because Sea knew Martin was familiar with the family.

         ¶ 13 Sea went to the police station at approximately 10:15 p.m. He noticed that C.J. was upset and crying or, as he put it, "not her normal self." Sea remained at the police station while Martin spoke with C.J., but Sea himself was not formally a part of the investigation. He testified that an agent of the Department of Child and Family Services (DCFS) came to the station and established a safety plan, which included removing C.J. from her home.

         ¶ 14 Martin testified that he was at home on the night of March 30, 2014, when he received a telephone call from Sea. Regarding that phone call, Martin testified, "He told me that [C.J.] was ready to talk about [defendant] touching her." Martin arrived at the police station around 10:15 p.m., where he noticed that C.J. was visibly upset. Martin spoke with Karen, Sherry, Sondra, and C.J. Martin testified that his conversation with C.J. was brief because after she made an allegation of sexual abuse he terminated the interview and arranged for a child advocacy center (CAC) interview.

         ¶ 15 Martin testified that Colleen eventually arrived at the station. Martin informed her that C.J. had made an allegation of sexual abuse against defendant. He testified that Colleen had no emotional reaction to the news. Martin explained that under the DCFS safety plan, Colleen's three daughters would go to Karen's house and Colleen's son would go to Sondra's house.

         ¶ 16 On April 4, 2014, Jeff Jackson of the North Pekin Police Department arrested defendant. Jackson informed defendant that he was being charged with predatory criminal sexual assault. Martin was present for the arrest and defendant's subsequent transport. Martin testified that no questions were asked of defendant while he was in the squad car, but defendant did enquire as to "why it was predatory." When Martin explained that the charge was "based upon the timeline, " defendant "said something about her being over 13."

         ¶ 17 C.J. testified that she lived in the home on North Main street in North Pekin with Colleen and defendant for approximately 11 years. She testified that on the night of March 30, 2014, she told Sondra that defendant had molested her. Soon thereafter, Karen arrived at Sondra's house, and they all went to the police station. At the police station, C.J. told officers "that over the past couple of years, [defendant] had been coming in my room. He's been asking me to do things and everything else." C.J. did not go into full detail with the officers that night but went into more detail in the CAC interview conducted a few days later.

         ¶ 18 C.J. testified that her first encounter with defendant occurred at her mother's house. C.J. was in the bathroom and heard a knock on the door. She opened the door to find defendant standing before her. C.J. testified, "He just told me to back into the bathroom, and he took pictures of my butt." Further, she testified, "He had me lean over the toilet, and he pulled my pants down and took pictures of my butt." C.J. testified that she was "[l]ike 7, almost 8" years old when that happened.

         ¶ 19 C.J. immediately told Karen about the bathroom incident, and Karen took C.J. to Colleen. After C.J. told Colleen what had happened, Colleen and Karen spoke to each other privately. Later, a DCFS agent came to the home. C.J. testified that she told the DCFS agent what happened but stated that defendant had not touched her. She told the DCFS agent this because she did not want to be taken away from her mother.

         ¶ 20 Later, when C.J. was approximately eight years old, defendant began going into C.J.'s bedroom at night. C.J. explained, "He'd unbutton my pants and he'd stick his hands in my vagina." She clarified that defendant's finger or fingers went inside her vagina. C.J. testified that defendant's behavior was continuous from the time she was eight years old until she alerted authorities. She estimated it had occurred at least 100 times. Though C.J. shared a bedroom with her two younger sisters, she believed they were asleep during the encounters.

         ¶ 21 C.J. also testified that when she was 11 or 12 years old, she went to her mother's bedroom to retrieve cigarettes for her mother, and defendant followed her. She continued, "He came in and like closed the door like halfway and had me lay on my mom's bed and pulled down my shorts and he got on top of me and had sex with me." C.J. confirmed that defendant put his penis in her vagina and moved back and forth. She testified that this was not the first time defendant had put his penis in her vagina. He had done the same thing in her bedroom when she was nine years old.

         ¶ 22 C.J. recalled another incident as well:

"[C.J.]: I was in the bathroom getting ready to go to bed, and he came in and had me sit on the toilet.
[STATE]: About how old were you then?
[C.J.]: 13 maybe, and he-
[STATE]: Were you 13 or were you younger?
[C.J.]: I might have been younger."

C.J. further explained that on that occasion, defendant placed his penis inside her mouth and moved it back and forth. He later told her to clean her mouth. On cross-examination, C.J. estimated she was "[l]ike 11 or 12" when the incident in the bathroom occurred.

         ¶ 23 C.J. testified that her mother had instituted a rule that none of the children in the house were to be alone with defendant. C.J. testified that she had been living with her father since she came forward, but she missed living with her mother. In the time that defendant was molesting her, C.J. did not tell anyone because she continued to fear that she would be taken from her mother.

         ¶ 24 Colleen testified that she continued to live on North Main Street in North Pekin and had lived there for more than 25 years. She testified that defendant moved into that home in 2005, when C.J. was five or six years old. When defendant moved in, Colleen established a rule that he would never babysit or be alone with the four children. The rule was crafted because Colleen knew defendant was a registered sex offender and also knew he had been convicted of an offense. Defendant's two daughters, Erica and Kayla, were now in their twenties and would occasionally stay at the house.

         ¶ 25 Colleen recalled the incident in which Karen told her that defendant had taken photographs of C.J.'s buttocks. Colleen confronted defendant the next day but did not find the pictures on his phone. Defendant continued to live at the house after the incident.

         ¶ 26 Colleen did not receive a telephone call on the night of March 30, 2014. After C.J. had not returned from Sondra's house for some time, Colleen and defendant got into a vehicle with the intent of finding her. Because her home is directly adjacent to the North Pekin police station, however, Colleen immediately noticed Karen's van in the police station parking lot. Before Colleen could head to the police station, defendant exited the vehicle. He told Colleen he was going to go to his sister's house because "he had a feeling something was wrong."

         ¶ 27 Karen testified that she had known C.J. since C.J.'s birth. Karen and C.J. had always had a close relationship, largely because C.J. spent so much time at Karen's house when she was growing up. Karen described C.J. as "[v]ery talkative, outgoing, [and] vibrant" when she was a young child. But as C.J. became older, she became more withdrawn and introverted. Karen began noticing these changes in C.J.'s personality when she was seven years old.

         ¶ 28 Karen recalled the incident in the bathroom at the North Main Street house to which C.J. had referred. Karen testified that she was at the house doing her laundry that evening. She eventually fell asleep in the front room of the house but woke up at approximately 5 a.m. Karen went toward the back of the house to use the bathroom, where she noticed defendant exiting the room. Defendant shut the bathroom door behind him and remained standing in front of it. When Karen told defendant she needed to use the bathroom, defendant told her C.J. was using it.

         ¶ 29 Defendant eventually relented, and Karen entered the bathroom. She saw C.J. crying. Karen testified, "She was really upset. She had said that [defendant] tried to take a picture of her bottom and told me that he pushed her on her back to have her bend over the toilet seat so he could take the picture." Defendant was wearing a black flip phone on his belt. Karen immediately took C.J. to Colleen's bedroom, where C.J. told her Colleen what had happened. When Colleen failed to notify the police, Karen did so. From that time forward, Karen saw significantly less of C.J. because Colleen did not want the children to see Karen with such regularity. Karen testified that she began seeing more of C.J. again in 2014.

         ¶ 30 On March 30, 2014, Karen received a telephone call from Sherry, Sondra's sister-in-law. Based on that telephone call, Karen called Sea, then she went to pick up C.J. from Sondra's house. When she arrived, she saw that C.J. was crying. Karen took C.J. to the police station, where they both spoke with the officers.

         ¶ 31 Dennis Minton of the North Pekin Police Department testified regarding an incident that occurred in 1996 and he investigated in 1998. Minton testified that he came to interview J.M., who told him that she had been home with defendant when defendant placed his mouth on her vagina then placed his penis in her vagina. The incident occurred when J.M. was 11 years old. Defendant was her uncle.

         ¶ 32 Minton subsequently went to defendant's home, where he was living with Delta, his wife at the time. Minton transported defendant from his home to the police station. Minton testified that during the ride "[defendant] asked me if this was about [J.M.], and I told him it was, and he said that he was glad that it was going to be over with." Minton eventually relayed J.M.'s accusations to defendant, and defendant told Minton "it was basically true." Minton testified that defendant explicitly admitted to having sexual intercourse with J.M. Defendant later provided a written confession, which was ...

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