People v. Barger

624 N.E.2d 405, 251 Ill. App. 3d 448, 191 Ill. Dec. 556, 1993 Ill. App. LEXIS 1764
CourtAppellate Court of Illinois
DecidedNovember 30, 1993
Docket4-91-0656
StatusPublished
Cited by23 cases

This text of 624 N.E.2d 405 (People v. Barger) 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. Barger, 624 N.E.2d 405, 251 Ill. App. 3d 448, 191 Ill. Dec. 556, 1993 Ill. App. LEXIS 1764 (Ill. Ct. App. 1993).

Opinions

PRESIDING JUSTICE STEIGMANN

delivered the opinion of the court:

After a July 1991 bench trial, the trial court convicted defendant, Michael R. Barger, of two counts of criminal sexual assault of his four-year-old daughter, G.B., in violation of section 12 — 13(a)(3) of the Criminal Code of 1961 (Criminal Code) (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 13(a)(3)). The court later sentenced defendant to two consecutive five-year terms in prison. Defendant appeals, arguing that (1) the trial court erroneously admitted hearsay statements under section 115 — 10 of the Code of Criminal Procedure of 1963 (Procedural Code) (Ill. Rev. Stat. 1991, ch. 38, par. 115 — 10), (2) the State failed to prove him guilty beyond a reasonable doubt, and (3) the trial court abused its discretion in not sentencing him to probation.

We disagree and affirm.

I. Background

Defendant and his wife, Eva Barger, divorced in June 1990 after a nine-year marriage. Eva obtained custody of their two children— G.B. (their daughter, born August 27, 1986) and T.B. (their son, born September 10, 1984) — and defendant obtained visitation at his home in Urbana on weekends while Eva worked.

On October 29, 1990, the Monday morning after one of these weekend visitations, G.B. told Eva during breakfast at Eva’s home that G.B. and defendant had a “secret.” G.B. then looked down at her cereal bowl and told her mother that “daddy kissed her private parts and she kissed her daddy’s penis.” Eva responded by asking G.B. if she meant that they had wrestled and he had actually just blown on her stomach, to which G.B. responded, “ ‘No, Mommy, he kissed my private parts.’ ”

Eva did not ask G.B. anything more, but instead spoke to defendant when he called later that day. Eva told defendant about G.B.’s accusations, and they agreed to meet at defendant’s home that night to discuss them. At this meeting, G.B. restated her allegations and defendant adamantly denied them. Concerned about her allegations, defendant walked G.B. around the house, holding her hand and asking her periodically where G.B. thought these events had occurred. Eva and the children eventually went home without further resolving anything.

The next day, Eva phoned her pediatrician after work and was referred to Dr. Holly Mirell of Carle Clinic in Champaign. Although Eva at no time called the authorities, the Urbana police and the Illinois Department of Children and Family Services (DCFS) were both called at this time and started investigating this case. The record does not reveal who first called the authorities. Eva testified that she did not want defendant prosecuted, although she did not give any reasons.

On November 14, 1990, Bill Gordon, an investigator with DCFS, and Officer Jim Wuersch, a juvenile investigator with the Urbana police department, met with G.B. at LaPetite Academy in Champaign. G.B. told them that she knew why they wanted to speak with her and told them about the alleged incidents. She told them that she had undressed both herself and her father, taking off his jeans, shirt, green swimsuit, and underwear. She said that after they became naked “her daddy *** kissed and licked her private parts, and [at her father’s request,] she *** kissed, licked and sucked her daddy’s private part.”

Gordon asked her where these incidents had happened, and G.B. responded that they occurred on “a couch-type bed upstairs at her daddy’s house.” She told them that her brother (T.B.) had gone downstairs to look for the pizza delivery man while these events occurred. T.B. returned upstairs before they had finished, but her father told him to go back downstairs. G.B. did not tell Gordon and Wuersch that anything happened downstairs; everything she described to them had occurred upstairs.

On November 19, 1990, Dr. Mary Buetow of Carle Clinic spoke to Eva and then examined and spoke to G.B. G.B. initially thought she was there to speak about a cough that had kept her awake the night before. The sexual abuse came up when Dr. Buetow asked G.B. if she remembered with whom she sat in the waiting room as Dr. Buetow spoke with Eva. G.B. responded “Bill Gordon *** the person I told about my daddy kissing my privates.” Thereafter, G.B. told Dr. Buetow that her father had kissed her private parts one weekend night when she visited him at his house. Dr. Buetow asked G.B. if she remembered the room in which it happened, to which G.B. responded, “downstairs.”

Dr. Buetow described what G.B. told her as follows:

“She indicated that her brother had been sent upstairs; *** that [defendant had] gone to a T.V. store and gotten two [video] tapes [(one was Godzilla and one was King Kong)] and they were watching the second of the two tapes at the time. Her daddy was sleeping on the floor, [and] was snoring; that she took off her daddy’s pants and his swimsuit, which is a bright green swimsuit; that she could not get off his shirt and that her dad himself took off his shirt; that she took off her clothes, her dad took off her underwear, and that he licked and kissed her in her private area.
***
I [then] asked her what she had done to her father, and she indicated that she had sucked on his penis.”

Dr. Buetow asked G.B. if she had ever heard about sucking genitalia on television, in a book, or from anyone else. G.B. responded that she did not and that “ ‘[m]y dad taught me how to suck his penis.’ ” G.B. then demonstrated by using stuffed, anatomically correct dolls of a naked adult male and a naked female child. According to Dr. Buetow, “She first undressed the little girl doll and undressed the male doll adult, saying, ‘All the clothes have to be off.’ ” She laid them side by side, saying “ ‘Here’s the dad snoring.’ ” She then took the adult male doll, put the mouth of the doll in the female crotch, and said that it represented her father licking and kissing. Dr. Buetow asked G.B. if her father did so on the inside or the outside, and G.B. opened the vaginal opening on the doll and showed that he kissed her on the inside.

Dr. Buetow then asked G.B. what she did to her father. G.B. picked up the adult male doll, put the doll’s penis in her mouth, and sucked on it. She then took the penis out of her mouth, looked at it, and asked, “ ‘Where’s the hole that belongs here?’ ” Dr. Buetow responded by asking G.B. if she saw this hole on her father’s penis and if anything had come out of this hole. G.B. said that she saw the hole, but nothing had come out of it.

Dr. Buetow then physically examined G.B., but did not find anything unusual. However, Dr. Buetow testified that the sexual conduct G.B. alleged had occurred ordinarily would not leave any physical evidence.

Dr. Buetow also testified that some confusion arose between her and Bill Gordon of DCFS regarding where the alleged incidents occurred. G.B. had only told Dr. Buetow that they occurred “downstairs,” although G.B. had only told Gordon that they occurred “upstairs.” Dr. Buetow thus asked G.B. to clarify, and G.B. said, “ ‘That’s no problem.’ ” G.B. then explained that these events had first occurred “downstairs” after defendant sent T.B. up to his room, and then occurred “upstairs” after defendant sent T.B. downstairs to watch for a pizza delivery.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

People v. Ross
2024 IL App (4th) 231560-U (Appellate Court of Illinois, 2024)
People v. Jones
2020 IL App (4th) 180068-U (Appellate Court of Illinois, 2020)
People v. Perkins
945 N.E.2d 1228 (Appellate Court of Illinois, 2011)
Boom Town Saloon, Inc. v. City of Chicago
Appellate Court of Illinois, 2008
People v. Lopez
129 P.3d 1061 (Colorado Court of Appeals, 2005)
People v. Miles
815 N.E.2d 37 (Appellate Court of Illinois, 2004)
People v. Bowen
699 N.E.2d 577 (Illinois Supreme Court, 1998)
In re Marriage of Rudd
Appellate Court of Illinois, 1997
People v. Peck
674 N.E.2d 440 (Appellate Court of Illinois, 1996)
People v. Hubbard
636 N.E.2d 1095 (Appellate Court of Illinois, 1994)
People v. Giles
635 N.E.2d 969 (Appellate Court of Illinois, 1994)
People v. Bridgewater
631 N.E.2d 779 (Appellate Court of Illinois, 1994)
People v. Barger
624 N.E.2d 405 (Appellate Court of Illinois, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
624 N.E.2d 405, 251 Ill. App. 3d 448, 191 Ill. Dec. 556, 1993 Ill. App. LEXIS 1764, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-barger-illappct-1993.