People v. Brooks

619 N.E.2d 1271, 246 Ill. App. 3d 777, 189 Ill. Dec. 222, 1993 Ill. App. LEXIS 550
Appellate Court of Illinois·Decided April 19, 1993·No. 1-90-3313·Published·Cited by 12 cases

Opinion

JUSTICE O’CONNOR

delivered the opinion of the court:

Defendant John Brooks appeals his conviction and three-year sentence for aggravated criminal sexual abuse (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 16(d)). Defendant raises the following errors on appeal: (1) the court erred in admitting testimony which insinuated that he had previously engaged in sexually abusive misconduct; (2) the court erred in allowing the State to substantively amend the indictment on the day of trial; (3) section 12 — 16(d) of the Criminal Code of 1961 is unconstitutional as a violation of the equal protection clauses of the United States and Illinois Constitutions; (4) improper prosecutorial comments during closing argument denied him a fair trial; (5) the court erred in instructing the jury with the definitions of sexual conduct and aggravated criminal sexual abuse, which employ the word “victim” without an accompanying definition, thereby indicating the court’s belief that the complaining witness was indeed a victim — a contested factual issue; and (6) defense counsel’s many errors before and during trial denied him effective assistance of counsel. We affirm.

On September 1, 1988, a complaint for preliminary examination was filed against defendant charging a violation of section 12 — 16(d) of the Criminal Code of 1961. The complaint stated in relevant part:

“John A. Brooks has, on or about August 13, 1988, at 1 West Bartlett Road, Cook County, Illinois (Division of the Department of Children and Family Services), committed the offense of Aggravated Criminal Sexual Abuse in that he knowingly committed an act of Sexual Conduct with [M.W.], who was at least 13 years of age but under 17 years of age, in that the defendant fondled the breast and buttocks of [M.W.] and the defendant was least [sic] 5 years older than [M.W.].”

Defendant was then indicted by the September 1988 grand jury of the circuit court of Cook County for aggravated criminal sexual abuse. The returned indictment provided:

“[0]n or about August 1, 1988 and continuing on through August 31,1988 at and within the County of Cook
JOHN BROOKS
committed the offense of AGGRAVATED CRIMINAL SEXUAL ABUSE
in that HE, A PERSON AT LEAST 5 YEARS OLDER THAN [M.W.], COMMITTED AN ACT OF SEXUAL PENETRATION, UPON [M.W.], TO WIT: CONTACT BETWEEN JOHN A. BROOKS FONDLED [M.W.] BREASTS AND BUTTOCKS WITH HIS HAND AND [M.W.] WAS A PERSON AT LEAST 13 BUT UNDER 16 YEAR OF AGE: IN VIOLATION OF CHAPTER 38, SECTION 12-16(d) OF THE ILLINOIS REVISED STATUTES 1985, AS AMENDED.”

On September 24, 1990, the day before trial commenced, the State asked leave of court to amend the grand jury indictment. The State first asked to change “sexual penetration” to “sexual conduct.” In support, the State argued that the acts alleged within the indictment were actually those of sexual conduct, not sexual penetration. Furthermore, during the grand jury proceedings, Sergeant Paula Lemke, the only witness to testify, answered questions dealing with sexual conduct, not penetration, with the “conduct” in question concerning defendant’s alleged fondling of M.W.’s breasts and buttocks. The term “penetration” was never mentioned during the proceeding. The State accordingly argued that the amendment would conform the returned indictment to the grand jury proceedings.

The State next asked to change “under 16 years of age” to “under 17 years of age.” The State referred the court to the grand jury transcript wherein the State referred to M.W. as “approximately 16 years old.” The State argued that a typographical error had occurred, resulting in “16” being typed rather than “17.” Over defense objection that the State was seeking substantive amendments to the indictment, the court allowed the amendment.

At trial, M.W. testified that on August 19, 1988, she was a 16-year-old resident at Herrick House, a facility for children. M.W. had been removed from her mother’s house after the mother stabbed M.W.

On the above date, most of the residents of Herrick House were on a field trip to the Illinois State Fair. M.W. did not go on the trip because she was recovering from a minor head injury.

At about 4 p.m. that day, M.W. went to the kitchen to get something to eat. M.W. saw defendant, whom she knew to be a counselor for the boys, in the hallway area near the kitchen door. No one else was present during the events which followed.

Defendant asked M.W. how her head was feeling, and she replied that she was doing fine. Defendant approached M.W. and put his hands inside her blouse, under her bra, and began to fondle her breasts. Defendant asked M.W. if she wanted to go home with him after work. M.W. declined defendant’s invitation. Defendant then put his hands into the back of M.W.’s pants and began to fondle her buttocks. M.W. pushed defendant away and returned to her room.

M.W. did not immediately tell anyone about the incident because she felt that no one would believe her. A week after the incident, she told Denise Cox, a Herrick House counselor. She next told Tanya Robertson, a friend of hers at the Herrick House. M.W. was taken to the police station a few weeks after the incident.

Bruce Hirsch testified for the State that in 1988 he was the director of the Herrick House Youth Center in Bartlett, Illinois. The center houses abused or neglected children who are wards of the State. As director, Hirsch hired defendant as a child care worker. Defendant worked a 3 to 11 p.m. shift on August 19, 1988. Hirsch terminated defendant on October 24, 1988. An arbitration hearing was subsequently held regarding defendant’s termination. These proceedings resulted in defendant resigning his position, receiving no back pay, and defendant agreeing to never work for the State again.

Hirsch first learned about M.W.’s allegations when the Bartlett police began their investigation. M.W. first talked with Hirsch about the assault on the day of trial.

Defendant testified on his own behalf, stating that he began at the Herrick House in March 1987. Defendant served as a child care service worker, attending the everyday needs of the children.

On August 19, 1988, defendant arrived to work at about 2:30 p.m. Many of the facilities’ residents were attending the State Fair; however, some were left behind, including three to four boys for disciplinary reasons and one female. Defendant did not see M.W. that day, and defendant was only at the facility’s kitchen one time, at about 5 p.m., when he obtained the four boys’ dinner. After the boys ate, defendant accompanied them back to the dorm area. Defendant first became aware of the allegations against him on September 1, 1988. Defendant denied ever touching M.W. on August 19,1988.

Following argument, the jury convicted defendant of aggravated criminal sexual abuse. The court subsequently sentenced defendant to three years’ imprisonment. This appeal followed.

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People v. Brooks, 619 N.E.2d 1271, 246 Ill. App. 3d 777, 189 Ill. Dec. 222, 1993 Ill. App. LEXIS 550 (Ill. Ct. App. 1993).

619 N.E.2d 1271 (People v. Brooks) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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