People v. Fowler

608 N.E.2d 390, 240 Ill. App. 3d 442, 181 Ill. Dec. 317, 1992 Ill. App. LEXIS 2136
CourtAppellate Court of Illinois
DecidedDecember 30, 1992
Docket1-91-2424
StatusPublished
Cited by2 cases

This text of 608 N.E.2d 390 (People v. Fowler) 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. Fowler, 608 N.E.2d 390, 240 Ill. App. 3d 442, 181 Ill. Dec. 317, 1992 Ill. App. LEXIS 2136 (Ill. Ct. App. 1992).

Opinion

JUSTICE McNAMARA

delivered the opinion of the court:

Following a jury trial, defendant, Perry V. Fowler, was convicted of aggravated criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 14(b)(1)), of Jessica K., age seven, and was sentenced to a term of 10 years. Defendant raises the following issues on appeal: (1) whether the State failed to prove him guilty beyond a reasonable doubt; (2) the testimony of the victim’s mother and two other witnesses should not have been admissible; (3) the trial court’s actions during jury deliberations denied defendant a fair trial; (4) improper prosecutorial comments during closing arguments; (5) ineffective assistance of counsel; and (6) that the sentence was excessive.

The facts are as follows. In spring 1989, defendant, age 32, and his former wife lived in an apartment complex located in Palos Hills, Illinois. The victim, together with her mother, father, and brothers, lived in the same apartment complex as defendant and his wife. Defendant and his wife were friends of the victim’s parents, and for a period of time, defendant and the victim’s father worked at the same company.

During the summer of 1989, the victim’s parents separated. The mother relocated in Michigan with the victim and her brothers. On November 30, 1989, the mother had a conversation with her boyfriend about purchasing airline tickets for the children to visit their father during Christmas vacation. The victim and her brother, Brandon (age 11), approached their mother. Brandon told his sister to “tell Mom or I’m going to.” The victim told her mother that she did not want to visit her father because defendant was going to be there. She further related that defendant touched her “in private places” and made her do things that she never wanted to happen again.

Prior to trial, the court conducted a hearing outside the presence of the jury pursuant to section 115 — 10 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10), and found the victim, age nine at that time, to be a competent witness. The judge also heard the testimony of the victim’s mother, Detective Henke of the Michigan State Police Department, and Mary Martone of LaRabida Hospital. The judge determined that the statements of the victim, in conjunction with the corroborating witnesses, were sufficiently reliable to permit the outcry testimony of these witnesses in accordance with section 115 — 10.

The victim testified at trial that she lived in Michigan with her mother, aunt, brothers and cousins. She previously lived in Palos Hills. When she was approximately six or seven years old, she slept overnight at the apartment of defendant and his former wife, Diane Fowler, approximately five or six times. Defendant and his wife took her to the carnival, and afterwards she slept overnight on the couch in her nightgown and underwear. Defendant went to sleep in a back bedroom.

Defendant woke the victim up by feeling her vagina, which she referred to as her “private parts,” and he also inserted his finger into her vagina. The victim’s underwear was pulled down around her knees. Defendant asked the victim whether it felt good when he stroked her vaginal area, to which she replied “no.” When defendant finished, he told the victim to remember that it was “our secret.”

The victim stayed overnight at defendant’s apartment on six or seven other occasions when he touched her in a similar manner. During one such incident defendant “licked” her genital area. The victim also testified that defendant placed her hand on his penis.

Defendant refrained from touching the victim when other children were overnight guests. However, on two occasions when Brandon, age nine at that time, also stayed overnight, defendant approached her during the night and felt her vaginal area with his hand and inserted his finger into her vagina. Brandon remained asleep during the incident. Defendant then returned to his own bed to sleep with his wife.

On cross-examination, the victim stated that defendant’s wife was asleep in the bedroom when the sexual incidents occurred. The victim did not wake her brother up at the time because she was afraid that he would make fun of her; however, she did tell Brandon about this incident at a later date. The victim also told her best friend, Nichole, that defendant touched her in her “privates” and that it hurt, but Nichole laughed at her and told her that she was lying. The victim returned to defendant’s apartment after the first time he touched her because he said that he would take her to the carnival. Thereafter she returned to defendant’s apartment because he promised to take her out for pizza. The victim last saw defendant in June.

The victim’s mother testified that she and her husband met the defendant and his wife through mutual friends. Defendant had volunteered to take her daughter to carnivals, parks, the pool, and she had also spent the night at his apartment on an average of once or twice per month. The victim’s mother continued the friendship with defendant and his wife after moving to Michigan in July 1989. Upon learning of her daughter’s allegation of sexual misconduct performed by defendant, she contacted the Michigan State Police Department and set up a meeting for the victim to speak to Detective Henke on December 4, 1989. On December 15, 1989, the victim was examined at LaRabida Hospital by Mary Martone, assistant director of behavior science, and Dr. Dantos, a pediatrician.

On cross-examination, the victim’s mother stated that her daughter saw defendant in October 1989 at her husband’s apartment in Illinois. The victim “wanted nothing to do with [the defendant].” The mother of the victim’s friend Nichole had told her to “watch [defendant] because he was a pervert” in the spring of 1989. However, she found nothing in her daughter’s actions to support the insinuations. She continued to allow the 'victim to go over to defendant’s apartment, provided that defendant’s wife was present.

Officer Henke testified that he had worked as a trooper for the past 20 years, and that for the past IIV2 years, he had dealt with physical and emotional child abuse. The State questioned Henke about his educational background and the training schools he attended in the field of child sexual abuse and investigation. In addition, Henke taught sexual abuse training courses at various police academies and also received several commendations for his investigatory skills.

On December 4, 1989, Henke conducted an interview of the victim. After preliminary conversation, the victim told Henke that she had come to the post that day because defendant had touched her in “private places.” The victim told Henke that the incidents had occurred at defendant’s apartment when she was six years old. The victim stated that the first incident occurred when she awoke to find defendant lying behind her on the couch. When she awoke she found that her underpants were around her knees, that her legs were slightly apart, and defendant had reached over on top of her and was touching her vaginal area. After a period of time, defendant also placed his finger inside her vagina. The victim felt pain when defendant inserted his finger into her vagina. Defendant made a circular motion with his finger and moved it up and down while his finger was inside of her.

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Related

People v. Barger
624 N.E.2d 405 (Appellate Court of Illinois, 1993)

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Bluebook (online)
608 N.E.2d 390, 240 Ill. App. 3d 442, 181 Ill. Dec. 317, 1992 Ill. App. LEXIS 2136, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-fowler-illappct-1992.