People v. Avila

535 N.E.2d 1027, 180 Ill. App. 3d 345, 129 Ill. Dec. 262, 1989 Ill. App. LEXIS 222
CourtAppellate Court of Illinois
DecidedMarch 1, 1989
Docket1-88-0511
StatusPublished
Cited by10 cases

This text of 535 N.E.2d 1027 (People v. Avila) 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
People v. Avila, 535 N.E.2d 1027, 180 Ill. App. 3d 345, 129 Ill. Dec. 262, 1989 Ill. App. LEXIS 222 (Ill. Ct. App. 1989).

Opinion

JUSTICE McNAMARA

delivered the opinion of the court:

A jury found defendant Daniel Avila guilty of criminal sexual assault with a minor family member. The trial court sentenced defendant to a term of four years’ imprisonment. Defendant appeals, contending that he was not proved guilty beyond a reasonable doubt; that he was denied an impartial jury; that the jury instruction on criminal sexual assault failed to include a mental state; that the court failed to sua sponte give a jury instruction on prior inconsistent statements; and that his sentence was predicated on erroneous considerations.

Defendant was convicted of criminal sexual assault following an incident on February 28, 1986, involving acts of cunnilingus and fellatio with his 16-year-old stepdaughter.

At trial, the victim testified that when she was seven or eight years old, her mother married defendant. When she was eight, defendant began fondling her and instructing her to fondle his genitals. The incidents typically occurred after school when her mother was at work.

By the time the victim was 10 or 11 years old, the sexual relations occurred three or four times a week. They first progressed to include oral sex, and later, vaginal intercourse. Typically the victim would return from school and find defendant had bathed and was waiting for her. He would tell her what she had to do. The victim testified as to the precise positions and sexual acts defendant instructed her to perform.

The victim initially believed the sexual demands were a normal thing to do. She later attempted to refuse defendant’s demands. He hit her with a belt two or three times when she refused to obey his orders to go into the bedroom. Defendant often warned that the victim would break up the family if she told anyone.

During high school, the victim argued with defendant more about the sexual demands. During one argument, the victim threatened to tell her mother. Defendant replied that he had already done so. The victim told her mother about it after arguing with defendant. Her mother yelled at defendant, “You better not be doing that again.” The victim did not tell her mother about it again because the victim believed her mother would not do anything about it.

When the victim was 15 years old, defendant began adoption proceedings. She appeared before a judge, who asked whether she had any complaints or objections to being adopted, and the victim replied “No.” She replied similarly to a guardian’s questions.

The sexual demands and routine continued. Defendant would often leave in the afternoon to take his children to hockey practice and would usually return home immediately. As a sophomore, the victim began participating in track after school and returned home by 6 p.m.

On February 28, 1986, the victim arrived home at 5:30 p.m. She began doing her homework when defendant told her to “wash up and go in the bedroom.” She complied with his demands for oral sex. This was the last day she engaged in any sexual conduct with defendant.

On March 3, 1986, the victim returned from track practice at 6 p.m. and found her mother waiting for her at the bus stop. She was angry because the victim had told her she would be home by 5:30 p.m. Her mother continued yelling at her on the way home and began hitting the victim with a whiffle bat. The mother told the victim that defendant was angry because she was not at home. The victim went to her room and remained in bed until the next day, when she telephoned her grandmother for help. Her grandmother in turn telephoned the victim’s father.

The victim’s father picked her up and asked what was wrong. “He had been asking me questions, you know, about why I was upset because I was crying. And then he said, ‘He isn’t messing with you, is he?’ And I started crying and I said, ‘Yes.’ ” The victim testified that part of the reason she did not want to go home after March 3 was because she had fought with her mother. She denied that she wanted to leave home so she could avoid taking care of her brothers and sister. The victim continued to live with her grandparents for several years and was an 18-year-old freshman in college when she testified.

Charles Whaley, the victim’s father, testified for the State that on March 4 he picked up his daughter, who was crying. When they arrived at his home, he asked her questions. On the following day, he reported defendant’s conduct to the Illinois Department of Children and Family Services’ child abuse hot line.

Mary Jo Avila, the victim’s mother, testified for defendant that during the years the victim lived at home, the mother worked from 2:30 p.m. to 11 p.m. She had three children from her marriage with defendant. The mother had never observed abnormal conduct by defendant and believed he was a very good father to all four children.

Prior to high school, her daughter “was nice and sweet and kind and very considerate to the other children and to me.” After entering high school, the victim became belligerent, hostile, and hard to control. The mother did not approve of her daughter’s choices of boyfriends.

The mother testified that on February 28 she telephoned her daughter at home at about 6 p.m. The mother knew defendant was at the ice rink with the other three children from 4 to 8 p.m. that day because the victim said there was nobody at home. On March 3, a holiday, the victim did not return from track practice until about 8 p.m., when they argued on the street about her lateness. The mother admitted beating her daughter with a whiffle bat because she “was tired of her lying to me, telling me she was one place, and I did not believe she was there.”

The mother described her relationship with defendant as adequate. She never saw him abuse any of the children. Neither her daughter nor defendant ever reported any type of sexual abuse. She stated, “I don’t know anything about any sexual abuse of a female child.”

The mother denied hearing any discussion where her daughter told defendant, “I’m going to tell my mother,” or where the mother told defendant “Don’t do it again.” The mother did not recall speaking to the Whaleys on March 9 when defendant was arrested. She denied telling Pearl Whaley that she knew defendant was sexually abusing the victim.

Defendant testified that he was a refuse collection coordinator for the City of Chicago. He denied having any sexual relations with the victim. He complained about her behavior. “You couldn’t tell her anything. You couldn’t talk to her.” Defendant testified further that he “hated to come home from work because every day, every day, the arguing, fighting and the bickering” with the victim was too upsetting. Consequently, he began taking the other three children skating every day at about 4 p.m. He always stayed at the ice rink.

The adoption of the victim by defendant was not completed “because we were having a lot of trouble with her.” He did not believe that she wanted to be part of the family, and he did not want to be responsible for her. Defendant denied ever hitting the victim with a belt.

On February 28, defendant was at the ice rink from about 4 p.m. until 8:30 p.m.

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Cite This Page — Counsel Stack

Bluebook (online)
535 N.E.2d 1027, 180 Ill. App. 3d 345, 129 Ill. Dec. 262, 1989 Ill. App. LEXIS 222, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-avila-illappct-1989.