In Re AJH

568 N.E.2d 964, 210 Ill. App. 3d 65, 154 Ill. Dec. 743
CourtAppellate Court of Illinois
DecidedMarch 8, 1991
Docket2-90-0132
StatusPublished

This text of 568 N.E.2d 964 (In Re AJH) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re AJH, 568 N.E.2d 964, 210 Ill. App. 3d 65, 154 Ill. Dec. 743 (Ill. Ct. App. 1991).

Opinion

568 N.E.2d 964 (1991)
210 Ill. App.3d 65
154 Ill.Dec. 743

In re A.J.H., a Minor.
(The People of the State of Illinois, Petitioner-Appellee,
v.
A.J.H., Respondent-Appellant).

No. 2-90-0132.

Appellate Court of Illinois, Second District.

March 8, 1991.
Rehearing Denied April 9, 1991.

Brigham, Kane & Strubbe, Waukegan, Karen L. Brigham (argued), Kevin M. Kane, for "A.J.H."

Michael J. Waller, Lake County State's Atty., Waukegan, William L. Browers, Deputy Director, State's Attys. Appellate Prosecutor, Gregory L. Slovacek (argued), SAAP Elgin, Elgin, for people.

Justice INGLIS delivered the opinion of the court:

Respondent, A.J.H., a minor, appeals from an adjudication of delinquency (Ill. Rev.Stat.1989, ch. 37, par. 805-3(1)) based upon a finding by the trial judge that A.J.H. committed an act of aggravated criminal sexual abuse (Ill.Rev.Stat.1989, ch. 38, par. 12-16(c)(2)(i)) upon a five-year-old child for whom she baby-sat. On appeal, respondent raises the following issues: (1) whether respondent was adequately informed of the charges against her to enable her to prepare her defense; (2) whether the five-year-old complaining witness was competent to testify; (3) whether the hearsay statement of the complaining witness was properly admitted under section 115-10 of the Code of Criminal Procedure of 1963 (Code) (Ill.Rev.Stat.1989, ch. 38, par. 115-10); and (4) whether respondent was proved guilty beyond a reasonable doubt of aggravated criminal sexual abuse. We reverse.

On June 19, 1989, the State filed a petition for adjudication of wardship charging respondent, a 13-year-old girl, with aggravated criminal sexual abuse. The petition alleged that, on or about a period of time from January through May 1989, respondent *965 knowingly fondled the penis of B.H. for the purpose of her own sexual arousal. Respondent's attorney filed a motion to strike and dismiss the petition on the basis that the allegations as to the date were so vague and uncertain that she could not properly prepare a defense. Respondent's motion was denied, but a petition for a bill of particulars was permitted to be filed.

In the petition for a bill of particulars, respondent alleged that she sat for B.H. on approximately five occasions between January and May 1989, at different locations with different people being present. Respondent alleged that without more specific information, she would have to prepare defenses and witnesses to testify on her behalf for five or six separate dates of baby-sitting. The State filed a single-sentence response, alleging that the offense occurred on or about a period of time from October 1988 through May 1989, at the address of B.H.'s grandparents. At the hearing on the petition for a bill of particulars, the trial court denied respondent's request for a more specific date and granted the State's oral motion to amend the petition for adjudication of wardship, alleging that the offense occurred sometime during October 1988 through May 1989.

The trial commenced on August 25, 1989. The first witness called by the State was B.H. The trial judge asked B.H. a few preliminary questions, which required him to identify numbers and colors. The judge then asked B.H. whether he knew what it meant to tell the truth and whether he could do so in court. B.H. responded affirmatively. The trial judge stated that she would not dispense an oath at that time, but requested the State to go into some credibility issues.

The prosecutor asked B.H. what his name was, his age, his birthday, and where he lived. B.H. was able to answer all of the prosecutor's questions. B.H. testified that if he did not tell the truth at home, his mother would yell at him and send him to bed; however, if he did not tell the truth at preschool, nothing would happen. B.H. said that he did not know what would happen if he told a lie to the judge.

The prosecutor then asked the trial court for B.H. to be qualified as competent to testify. The court reserved its ruling and permitted the State to examine B.H. regarding the allegations of the petition. B.H. identified respondent in court and stated that he knew her when he was three and five years old, but not when he was four years old. B.H. testified that respondent touched him where she was not supposed to while they were at B.H.'s grandparent's house. However, B.H. could not remember where respondent touched him.

The prosecutor then requested permission for B.H.'s mother to be present during B.H.'s testimony and for that testimony to take place in chambers. Because the mother was scheduled to be called as a witness, the prosecutor agreed to call her first, without B.H. being present, and then resume B.H.'s testimony afterwards in chambers. The trial court granted the prosecutor's request.

B.H.'s mother testified that she and B.H. lived with her parents until May 1989. Respondent baby-sat for her usually once a week from October 1988 until May 1989. On cross-examination, the mother testified that because B.H.'s grandfather worked midnights, he was always in the house sleeping when respondent baby-sat.

The testimony of B.H. was then continued in the judge's chambers. The prosecutor asked B.H. whether he could show on a doll what respondent did to him. B.H. indicated that he could not and refused to hold the doll. When the prosecutor asked where respondent touched him, B.H. responded that he had forgotten.

The prosecutor then asked permission for B.H.'s mother to sit next to B.H., which the trial court granted. With his mother beside him holding his hand, B.H. continued in his refusal to take the doll and indicated that he could not say where respondent had touched him. The prosecutor then asked for a continuance, which the trial court granted over respondent's objection. In granting the continuance, the trial judge noted that it was almost 5 p.m. on a Friday and B.H. had had a long day.

*966 The trial resumed on Thursday, August 31, 1989, with the questioning of B.H. When the prosecutor asked B.H. to tell where respondent had touched him, B.H. responded "My private parts." B.H. agreed that by "private parts," he meant his penis. The prosecutor handed B.H. the doll and asked him to show what respondent did to him. The prosecutor described that B.H. put his hand under the pants and underwear of the doll and moved his hand back and forth. Respondent's attorney stated that that was not what he saw B.H. do. The trial judge admitted that she was not sure what B.H. did, and so B.H. was asked to demonstrate it again. The judge noted that B.H. then put his thumb and middle finger in the penis area of the doll and moved them back and forth. The prosecutor then pulled the doll's pants down and asked B.H. to show where respondent had touched him. B.H. touched the penis area of the doll. The prosecutor asked B.H. to demonstrate, by touching his leg with his hand, exactly how long respondent allegedly kept her hand on his penis. The court noted for the record that B.H. did so for a time span of about four to five seconds. When asked whether respondent had said anything afterwards, B.H. stated that she had told him not to tell anyone.

On cross-examination, B.H. stated that he had not talked to anyone about his testimony since he first testified on Friday, August 25. B.H. specifically denied having met with Lake County sheriff's detective Richard Bilisko during the interim. B.H. testified that he has known respondent for seven or eight years and that she has baby-sat him for six, seven, or eight years, he did not know. B.H.

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Bluebook (online)
568 N.E.2d 964, 210 Ill. App. 3d 65, 154 Ill. Dec. 743, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-ajh-illappct-1991.