People v. Cannon

832 N.E.2d 312, 358 Ill. App. 3d 313, 295 Ill. Dec. 161, 2005 Ill. App. LEXIS 622
Appellate Court of Illinois·Decided June 27, 2005·No. 1-04-0094·Published·Cited by 8 cases

Opinion

JUSTICE GORDON

delivered the opinion of the court:

Defendant, Maurice Cannon, was convicted after a bench trial of predatory criminal sexual assault of a child, sexual exploitation of a child, and unlawful restraint involving S.E, his seven-year-old niece. Defendant appeals contending that the statute that allowed for the introduction of S.E’s statements to third persons at his trial was unconstitutional on its face and that those wrongfully admitted statements resulted in his conviction. We affirm.

FACTUAL BACKGROUND

B.E, S.E’s mother, was driving with S.E to buy dinner on July 7, 2000, when S.E stated that defendant had told her she had a “big ole butt,” and that he liked women with “big ole butts.” S.E’s mother was concerned and, after consulting with other family members about how to respond to this information, she decided to ask S.E more specifically what had happened between her and her uncle.

S.E informed her mother that defendant would take her from the couch on which she slept when she and B.E would stay overnight at her grandfather’s, which was also defendant’s residence. She related that defendant had kissed her “privates” and had tried to put his “private” inside of her. On another occasion, after she and defendant watched Soul Train, he exposed himself to her. S.E also informed B.E that defendant had taught her to “French kiss.”

Clifton Woodard, a Department of Children and Family Services (DCFS) investigator, subsequently met with S.E She informed him that defendant had touched her “private area” with his hand and tongue.

Erior to defendant’s trial, the State moved for, and the circuit court approved, over defendant’s objection, the subsequent admission at trial of S.E’s statements made to her mother and Investigator Woodard pursuant to section 115 — 10 of the Code of Criminal Frocedure of 1963 (725 ILCS 5/115 — 10 (West 2002)). That section provides, in pertinent part:

“§ 115 — 10. Certain hearsay exceptions.
(a) In a prosecution for a physical or sexual act perpetrated upon or against a child under the age of 13, or a person who was a moderately, severely, or profoundly mentally retarded person as defined in this Code and in Section 2 — 10.1 of the Criminal Code of 1961 at the time the act was committed, including but not limited to prosecutions for violations of Sections 12 — 13 through 12 — 16 of the Criminal Code of 1961 and prosecutions for violations of Sections 10 — 1, 10 — 2, 10 — 3, 10 — 3.1, 10 — 4, 10 — 5, 10 — 6, 10 — 7, 11 — 6, 11 — 9, 11 — 11, 11 — 15.1, 11 — 17.1, 11 — 18.1, 11 — 19.1, 11— 19.2, 11 — 20.1, 11 — 21, 12 — 1, 12 — 2, 12 — 3, 12 — 3.2, 12 — 4, 12— 4.1, 12 — 4.2, 12 — 4.3, 12 — 4.7, 12 — 5, 12 — 6, 12 — 6.1, 12 — 7.1, 12— 7.3, 12 — 7.4, 12 — 10, 12 — 11, 12 — 21.5, 12 — 21.6 and 12 — 32 of the Criminal Code of 1961, the following evidence shall be admitted as an exception to the hearsay rule:
(1) testimony by the victim of an out of court statement made by the victim that he or she complained of such act to another; and
(2) testimony of an out of court statement made by the victim describing any complaint of such act or matter or detail pertaining to any act which is an element of an offense which is the subject of a prosecution for a sexual or physical act against that victim.
(b) Such testimony shall only be admitted if:
(1) The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and
(2) The child or moderately, severely, or profoundly mentally retarded person either:
(A) testifies at the proceeding; or
(B) is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement; and
(3) In a case involving an offense perpetrated against a child under the age of 13, the out of court statement was made before the victim attained 13 years of age or within 3 months after the commission of the offense, whichever occurs later, but the statement may be admitted regardless of the age of the victim at the time of the proceeding.” 725 ILCS 5/115 — 10 (West 2002).

At defendant’s trial, S.E’s mother and DCFS Investigator Woodard did, in fact, testify as to the various acts of sexual abuse performed on her by defendant set out above.

Dr. Purim-Shem-Tov of Wyler’s Children’s Hospital also testified to S.E’s statements made to her in the course of treating S.E S.E told the doctor that she was rectally penetrated with a finger by “an uncle who was living in the grandfather’s house,” as well as being touched in her vaginal area beneath her underwear. She denied ever being penetrated by the uncle’s penis, however.

Chicago police detective Bowen published defendant’s signed confession of various acts of sexual abuse against S.P. at his trial. Defendant confessed to digitally penetrating S.E in both her anus and vagina while she slept on a couch in his home. He indicated he did this because he liked women with “big butts” and S.E had a “big butt,” and he stated that he would sometimes become aroused during this conduct. Defendant further confessed to touching his penis to S.E’s anus and vagina while on his bed. In particular, defendant admitted to perpetrating some of this abuse during and after he and S.E danced to the music programs Caliente and Soul Train.

S.E herself also testified at defendant’s trial. She testified on direct examination to the same acts that defendant confessed to. She particularly noted that defendant had started French kissing her one day while they watched “Calienge [sic]” and a “soul train line.” Defense counsel elicited on cross-examination, however, that S.E did not relate each incident of abuse that she described to each person who interviewed her. S.E also had difficulty under cross-examination placing when the abuse occurred, sometimes describing the abuse as happening on different dates than given by defendant in his confession. Defense counsel further elicited that S.E never remembered talking to Investigator Woodard.

After hearing the evidence and arguments, the trial court found defendant guilty of 12 counts of predatory criminal sexual assault, aggravated criminal sexual assault, and aggravated criminal sexual abuse, with the lesser offenses merging into the greater, as well as the previously mentioned counts of sexual exploitation of a child and unlawful restraint. Based on his previous conviction for aggravated criminal sexual assault in 1991, the court sentenced defendant to natural life in prison under section 12 — 14.1(b)(2) of the Criminal Code of 1961 (720 ILCS 5/12 — 14.1(b)(2) (West 2002)). Defendant appeals.

ANALYSIS

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People v. Cannon, 832 N.E.2d 312, 358 Ill. App. 3d 313, 295 Ill. Dec. 161, 2005 Ill. App. LEXIS 622 (Ill. Ct. App. 2005).

832 N.E.2d 312 (People v. Cannon) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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