People v. Embry

619 N.E.2d 246, 249 Ill. App. 3d 750, 188 Ill. Dec. 882, 1993 Ill. App. LEXIS 1304
CourtAppellate Court of Illinois
DecidedAugust 26, 1993
Docket4-92-0737
StatusPublished
Cited by22 cases

This text of 619 N.E.2d 246 (People v. Embry) 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. Embry, 619 N.E.2d 246, 249 Ill. App. 3d 750, 188 Ill. Dec. 882, 1993 Ill. App. LEXIS 1304 (Ill. Ct. App. 1993).

Opinion

PRESIDING JUSTICE STEIGMANN

delivered the opinion of the court:

In July 1992, a jury convicted defendant, Clarence E. Embry, of two counts of aggravated criminal sexual assault and two counts of aggravated criminal sexual abuse. (Ill. Rev. Stat. 1991, ch. 38, pars. 12 — 14, 12 — 16.) The court sentenced defendant to two consecutive eight-year terms of imprisonment for the aggravated criminal sexual assault convictions and declined to enter judgments of conviction on the two aggravated criminal sexual abuse charges. Defendant appeals, alleging as error that (1) the court admitted hearsay testimony absent compliance with section 115 — 10 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1991, ch. 38, par. 115 — 10), as well as hearsay testimony which implied an ongoing series of acts; (2) the prosecutor said in his opening statement that the child witnesses would testify about sexual abuse, but neither witness related any of the elements of the offenses charged; (3) the court admitted testimony that the defendant was in the hospital for cannabis use at the time of arrest; (4) the State did not prove him guilty beyond a reasonable doubt; and (5) the court concluded that consecutive sentences were mandatory.

We affirm.

I. Background

On the evening of January 2, 1992, defendant baby-sat his next-door neighbor’s three daughters — A.P. (age four), H.P. (age six), and E.W. (age nine) — at his trailer. During the evening, E.W. returned home, but her two younger sisters remained overnight at the defendant’s trailer. The mother testified at defendant’s trial that when the girls returned home the following morning, she smelled semen on A.P. Further, H.P. told her that defendant had pulled his pants down, the girls (A.P. and H.P.) had pulled their pants down, and they all danced around. The mother took all three girls to the Bloomington police department for an interview, but only E.W. and H.P. discussed acts involving A.P. and H.P. None of the girls alleged that defendant had any sexual contact with E.W. The State subsequently charged defendant with two counts of aggravated sexual assault, one count alleging penile-vaginal penetration with A.P. and one count alleging penile-vaginal penetration with H.P., and two counts of aggravated criminal sexual abuse, one count alleging conduct involving defendant’s penis and A.P.’s hand and one count alleging conduct involving defendant’s penis and H.P.’s leg.

In April 1992, the State filed a notice of intent under section 115 — 10 of the Code that the State intended to offer statements made by H.P. to her mother and Officers Fazio and Harris of the. Blooming-ton police at defendant’s trial. In June 1992, the trial court conducted a section 115 — 10 hearing at which Fazio testified that H.P. told him that defendant pulled his pants down, she and A.P. pulled their pants down, and A.P. then sat on the defendant’s head. H.P. also told him that they were all lying on the floor together, and A.P. had to squeeze the defendant’s “peter,” after which the defendant “went to the bathroom.” Fazio asked H.P. what color came out when defendant went to the bathroom, and H.P. said that sometimes it was white when A.P. sat on the defendant and sometimes was yellow when he went to the bathroom.

H.P. then demonstrated with two stuffed mice how she and A.P. straddled defendant when he was lying on the floor on his back and told Fazio that neither she nor A.P. were wearing pants when they did so. H.P. also told Fazio that A.P. had to lick the defendant’s “peter.” At that point, defendant objected to admission of anything H.P. told Fazio regarding acts committed on anyone other than herself. The court overruled the objection, finding that section 115 — 10 of the Code did not require the out-of-court statements to be limited to acts performed upon the child declarant.

Fazio stated that he gave H.P. some anatomical drawings for the purpose of body-part identification. H.P. identified the penis as defendant’s “peter,” and explained that he used it to touch her “butt” and her “pee-pee,” which she had labeled the vaginal area. H.P. told Fazio that defendant rubbed his penis against her butt and her inner thigh, and then “went to the bathroom” on her. Fazio stated that H.P. also said that defendant did the same things with A.P. Using the anatomical drawings, H.P. also indicated that defendant’s penis contacted A.P.’s mouth when A.P. had to lick defendant’s “peter.”

Harris testified that he assisted Fazio in interviewing H.P. and essentially corroborated Fazio’s testimony. At the section 115 — 10 hearing, no witness testified to any statements made by E.W. or A.P.

Prior to defendant’s trial, the court conducted a hearing to determine the competency of each of the three sisters to testify. After conducting an in camera interview with each child, the court determined that H.P. and E.W. were competent to testify, but that A.P. (who had turned five) was not.

When the trial began, the prosecutor told the jury in opening statements that the child witnesses would testify about sexual abuse by defendant. Prior to the State’s calling its first witness, defendant objected to any testimony regarding out-of-court statements by E.W. because she was not alleged to be a victim of any offense. The State acknowledged that the previous section 115 — 10 hearing did not include statements made by E.W. Outside the presence of the jury, the court then conducted a section 115 — 10 hearing on statements E.W. made to Fazio. She told Fazio that the defendant locked the door of his trailer, pulled his pants down, and talked “gross.” She said her sisters pulled their pants down and then “bad things happened,” but she would not look. E.W. then left defendant’s trailer and went next door to her own home. Based on this testimony, the court found that E.W.’s out-of-court statements possessed the requisite reliability.

When the jury returned, Fazio testified essentially as he had at the section 115 — 10 hearings regarding the out-of-court statements made by H.P. and E.W. Fazio also testified that at the time of defendant’s arrest, defendant told Fazio that on the night he was baby-sitting the three girls, he took them out for pizza and then they returned to the trailer. Around 9 p.m., E.W. went home. Defendant told Fazio that he went to the bedroom to change for bed, but the girls tried to watch him undress. He threatened to send them home and told them to go back in the living room.

Defendant further told Fazio that when he lay on the floor with the girls, they started to tickle him. He claimed that A.P. pulled down his pants and grabbed his “wiener.” He told A.P. not to do that and again threatened to send them home. Fazio asked defendant whether H.P. had also tried to grab his penis or if defendant had placed his penis in A.P.’s mouth. Defendant said that H.P. had tried to grab his penis, but he had moved away. A.P. then asked him if she could lick his penis and tried to put his penis in her mouth, but he would not let her. Defendant told Fazio that H.P. encouraged A.P. in this conduct. He explained that he did not allow the girls to leave later because the lights were off next door, and it was rainy and cold outside. When Fazio asked the defendant if he was giving the statement of his own free will, the defendant said “[y]es, as long as I can get help.”

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Cite This Page — Counsel Stack

Bluebook (online)
619 N.E.2d 246, 249 Ill. App. 3d 750, 188 Ill. Dec. 882, 1993 Ill. App. LEXIS 1304, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-embry-illappct-1993.