People v. Dugan

604 N.E.2d 1117, 237 Ill. App. 3d 688, 178 Ill. Dec. 594, 1992 Ill. App. LEXIS 1975
CourtAppellate Court of Illinois
DecidedDecember 4, 1992
Docket2-92-0126
StatusPublished
Cited by16 cases

This text of 604 N.E.2d 1117 (People v. Dugan) 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. Dugan, 604 N.E.2d 1117, 237 Ill. App. 3d 688, 178 Ill. Dec. 594, 1992 Ill. App. LEXIS 1975 (Ill. Ct. App. 1992).

Opinion

JUSTICE McLAREN

delivered the opinion of the court:

Robert Dugan, Sr., defendant, was charged by information with five counts of aggravated criminal sexual abuse. (Ill. Rev. Stat. 1989, ch. 38, par. 12—16(c)(1)(i).) Thereafter, the grand jury returned a true bill on a seven-count indictment. Following a bench trial, defendant was convicted of six counts of aggravated criminal sexual abuse and was sentenced to a term of seven years’ imprisonment. Defendant appeals both his conviction and sentence. For the following reasons, we affirm.

The victims in this case are B.B. and J.B., who were 11 and 12 years old at the time of trial, respectively. For three years prior to the time of the alleged offenses, defendant had been involved in a relationship with the mother of the children, Laura B.

Rodney B., the father of the children, and his wife, Robyn B., live in Florida. In a telephone conversation that took place on January 23, 1991, J.B. told.Robyn B. of a film on sexual abuse that she saw in health class. J.B. related to Robyn B. that defendant touched her breasts. In a telephone conversation later that day, J.B. informed Rodney B. that defendant touched her breasts on various occasions while she was lying on the couch with him. In a subsequent conversation, J.B. told Rodney B. of her bed-wetting problem and that defendant would check if she was wet by slipping his hand inside her underpants.

When Rodney B. questioned B.B. on January 23, 1991, she denied that any improper touches occurred. However, in a conversation on March 16, 1991, B.B. informed Rodney B. of an incident in December 1990 where defendant placed his penis between her legs and “started bouncing like when you’re trying to hold it when you have to go to the bathroom.”

The trial began on December 5, 1991. J.B. testified that she was 12 years old. J.B. reiterated that defendant touched her breasts under her bra and moved his hand in a circular motion on several occasions while she and defendant were lying on the couch watching television. J.B. also related that defendant sometimes checked if she wet her bed by touching her vaginal area inside of her underpants. Although J.B. thought these were bad touches, she was unsure until she viewed a film on sexual abuse at school. The activities to which J.B. testified constituted four counts of the indictment.

B.B. testified that she was 11 years old. B.B. stated that on several occasions while she was lying on the couch, defendant would rub her breasts. B.B. recalled that, in the early morning hours in December 1990, defendant went into her bedroom, woke her, and asked if she would like to watch a movie on television. Defendant took her to the living room couch, tuned in the Playboy channel, and removed his underwear. After defendant told B.B. to remove her underpants and get on top of him, he placed his penis between her legs and began “jumping,” or gyrating his hips. After a few minutes passed, defendant sat up and began to rub his penis. B.B. ran back to her bedroom and got into bed. Defendant followed her and “rub[bed] all over [her].” B.B. stated that she did not inform anyone of this incident because she saw movies with bad people on television and was afraid that defendant would kill her if she told. The activities to which B.B. testified constituted three counts of the indictment.

Defendant first contends that he was denied the right to fully confront the witnesses against him, particularly the children. During an interview with Timothy Rossi of the Department of Children & Family Services (DCFS) pursuant to a neglect petition filed against Laura B. in juvenile court, B.B. expressed the desire to live with her father in Florida. Following the trial, the defense became aware of B.B.’s statements to Rossi. Defendant contends that the State was obligated to disclose this information and the failure to do so foreclosed the opportunity to effectively cross-examine the children at trial.

In Brady v. Maryland (1963), 373 U.S. 83, 87, 10 L. Ed. 2d 215, 218, 83 S. Ct. 1194, 1196-97, the Supreme Court held that the prosecution’s suppression of evidence favorable to an accused, upon request, violates due process where the evidence is material either to defendant’s guilt or to punishment. The Brady standard has been adopted by Illinois courts. (People v. Hoffman (1965), 32 Ill. 2d 96, 99-100.) Additionally, Supreme Court Rule 412 (134 Ill. 2d R. 412) specifically provides for pretrial disclosure of relevant information to the accused. Paragraph (c) is essentially a codification of Brady v. Maryland and requires the State to disclose to defense counsel “any material or information within its possession or control which tends to negate the guilt of the accused as to the offense charged or would tend to reduce his punishment therefor.” (134 Ill. 2d R. 412(c).) Paragraph (g) of the rule delineates the scope of the State’s disclosure responsibilities as follows:

“Upon defense counsel’s request and designation of material or information which would be discoverable if in the possession or control of the State, and which is in the possession or control of other governmental personnel, the State shall use diligent good-faith efforts to cause such material to be made available to defense counsel; and if the State’s efforts are unsuccessful and such material or other governmental personnel are subject to the jurisdiction of the court, the court shall issue suitable subpoenas or orders to cause such material to be made available to defense counsel.” 134 Ill. 2d R. 412(g).

Violations of the discovery requirements of Rule 412 are governed by the same standard as Federal due process claims under Brady. (People v. Gutirrez (1990), 205 Ill. App. 3d 231, 255.) Under this standard, a new trial is not warranted unless the information that was requested but undisclosed was “material.” In United States v. Agurs, the Supreme Court stated that “implicit in the requirement of materiality is a concern that the suppressed evidence might have affected the outcome of the trial.” (United States v. Agurs (1976), 427 U.S. 97, 104, 49 L. Ed. 2d 342, 350, 96 S. Ct. 2392, 2398.) Regardless of whether the defense has made a general or specific request for the undisclosed information, “[t]he evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” (United States v. Bagley (1985), 473 U.S. 667, 682, 87 L. Ed. 2d 481, 494, 105 S. Ct. 3375, 3383.) The defendant bears the burden of proving there was a reasonable probability that timely disclosure of the requested material to the defense would have affected the verdict. (Bagley, 473 U.S. at 683, 87 L. Ed. at 494, 105 S. Ct. at 3384; Agurs, 427 U.S. at 112, 49 L. Ed. 2d at 355, 96 S. Ct. at 2402.) When applying the materiality standard, the State’s omission must be evaluated in the context of the entire record, and the reviewing court may consider any adverse effect the nondisclosure may have had on defendant’s case. Gutirrez, 205 Ill. App. 3d at 254.

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Cite This Page — Counsel Stack

Bluebook (online)
604 N.E.2d 1117, 237 Ill. App. 3d 688, 178 Ill. Dec. 594, 1992 Ill. App. LEXIS 1975, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-dugan-illappct-1992.