In Re ES

495 N.E.2d 1334, 145 Ill. App. 3d 906
CourtAppellate Court of Illinois
DecidedJuly 21, 1986
Docket5-85-0500
StatusPublished

This text of 495 N.E.2d 1334 (In Re ES) 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 ES, 495 N.E.2d 1334, 145 Ill. App. 3d 906 (Ill. Ct. App. 1986).

Opinion

145 Ill. App.3d 906 (1986)
495 N.E.2d 1334

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

No. 5-85-0500.

Illinois Appellate Court — Fifth District.

Opinion filed July 21, 1986.

*907 Randy E. Blue and Rita K. Peterson, both of State Appellate Defender's Office, of Mt. Vernon, for appellant.

Randall J. Rodewold, State's Attorney, of Chester (Kenneth R. Boyle, Stephen E. Norris, and Neil F. Flynn, all of State's Attorneys Appellate Service Commission, of counsel), for the People.

Orders affirmed.

JUSTICE WELCH delivered the opinion of the court:

On April 19, 1985, the office of the State's Attorney of Randolph County filed a petition for adjudication of wardship concerning E.S., a minor, alleging that one day previously the minor (then 15) committed the offense of aggravated criminal sexual abuse in that he committed a sexual act with his five-year-old cousin. After an adjudicatory hearing, the circuit court found the minor delinquent and adjudged him a *908 ward of the court. After preparation of a dispositional report and a dispositional hearing, the minor was placed on probation until his 18th birthday. The minor appeals.

• 1-4 The minor first contends the court erred in finding the five-year-old girl competent to testify. Witnesses age 14 and over are presumed competent to testify. If testimony is to be permitted by a child less than 14 years of age, the judge must inquire whether the witness is sufficiently mature to receive correct impressions by his senses, to recollect these impressions, to understand questions and narrate answers intelligently, and to appreciate the moral duty to tell the truth. The decision of the trial judge in this matter will not be reversed absent abuse of discretion or misapprehension of the law. (People v. Sims (1969), 113 Ill. App.2d 58, 61, 251 N.E.2d 795, 796-97.) In reviewing competency determinations, reviewing courts consider the length and depth of the preliminary examination and scrutinize the testimony of the witness at trial (People v. Seel (1979) 68 Ill. App.3d 996, 1004, 386 N.E.2d 370, 377), but must recall that the points to be covered in a competency inquiry are rarely discernible from trial testimony (People v. Sims (1969), 113 Ill. App.2d 58, 251 N.E.2d 795).

In the instant competency examination, most of the questions asked by the trial court were leading, and some of the five-year-old's answers were inappropriate. For example, when asked whether she understood when she was telling truth and when she was not telling the truth, she replied: "He did get up and beat me." She gave no response when asked: "Do you understand that when somebody is telling a lie and when somebody is telling the truth? Do you know what it means?" The court asked her: "Do you ever tell stories to your mommy that are not true?" She replied: "Well, get up and beat me." The court's attempt to get her to provide an example of a "fib" was unsuccessful. She gave appropriate answers when asked in leading fashion whether the judge had stated her name correctly, whether she knew right from wrong, whether she ever told her mother a fib, whether she had ever been spanked for fibbing, whether she knew what it meant if she told her mother a fib, whether she knew what it means if she told her mothing something untrue, whether she knew what it meant to tell the truth and not tell the truth, and whether she ever failed to put away her toys when told to do so.

• 5 The minor argues that during the competency inquiry the court "did not inquire of the witness her age, where she lived, whether she went to school, or even what day it was which would indicate an ability to understand questions and to express answers." This is true. However, during her subsequent testimony at the adjudicatory *909 hearing, she stated (without leading) her age and birthday, and when the assistant State's Attorney asked her if she talked to a policeman, she asked him if he meant the white one. She stated, again without leading, that at the time in question "[m]y mama was gone to see his grandma — ," and that no one else was home "but Patricia and the little baby." Asked whether she went to school, she replied: "No, me and April don't." More examples of her perception, memory and ability to answer questions appear below, but the above examples sufficiently demonstrate those points. We cannot conclude the judge's decision as to competency was error.

• 6, 7 The minor also argues that the allegations of the petition for wardship were not proved beyond a reasonable doubt and that the five-year-old's testimony was neither clear and convincing nor substantially corroborated. Under the Juvenile Court Act (Ill. Rev. Stat. 1985, ch. 37, par. 701-1 et seq.), the State must prove the minor is delinquent beyond a reasonable doubt when the adjudicatory hearing is in the nature of a criminal proceeding. In a case involving a sex offense, the complainant's testimony must be substantially corroborated or clear and convincing. (In Interest of Cruz (1979), 76 Ill. App.3d 565, 568, 395 N.E.2d 388, 391.) The witnesses at the adjudicatory hearing were the five-year-old, her mother, the minor, a Department of Children and Family Services investigator, a police officer, and a doctor who examined the five-year-old almost immediately after the alleged event.

The mother testified: When she got home her daughter was seated on the bed, buckling her shoe; the mother asked her what happened; the child said "nothing"; the mother asked again and threatened to "whoop" the child, who then said the minor had been "hunching" her and "messing" with her. The child was fully clothed, and while the mother referred to a "stain," she did not state its nature or location. The mother took her child to a hospital.

At the hospital, the doctor found no evidence of sexual conduct or other injuries. He ruled out penis-vagina penetration.

The DCFS investigator testified she went with the officer to the five-year-old's home after the child returned from the hospital. According to the witness, the child told her the minor touched her genital area with his "peeweiner."

The officer testified: The child told him the minor put his "peeweiner" in her vagina and made her wet. She indicated, rubbing both sides of her thighs. "I asked her where he put his penis," he testified, "and she patted the front of her vagina and said there. I said what did he do and she said he was messing with me."

*910 The 15-year-old minor, testifying in his own behalf, answered all questions asked of him regarding the date in question and denied all physical contact with the child that day other than once when "I pushed her to the side so I wouldn't trip on her." According to the minor, he dozed off in front of the television and woke up when the mother (his aunt) got home; she asked the child if he had been "messing" with her, and threatened to whip the child, who then said yes.

The five-year-old testified as follows: Asked whether the minor did anything with her pants, she said he "[p]ut them down here," indicating. She nodded when asked if he touched her and indicated between her legs.

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People v. E.S.
495 N.E.2d 1334 (Appellate Court of Illinois, 1986)

Cite This Page — Counsel Stack

Bluebook (online)
495 N.E.2d 1334, 145 Ill. App. 3d 906, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-es-illappct-1986.