People v. Jahn

615 N.E.2d 1270, 246 Ill. App. 3d 689, 186 Ill. Dec. 213, 1993 Ill. App. LEXIS 949
CourtAppellate Court of Illinois
DecidedJune 28, 1993
Docket2-91-0996
StatusPublished
Cited by15 cases

This text of 615 N.E.2d 1270 (People v. Jahn) 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. Jahn, 615 N.E.2d 1270, 246 Ill. App. 3d 689, 186 Ill. Dec. 213, 1993 Ill. App. LEXIS 949 (Ill. Ct. App. 1993).

Opinion

JUSTICE COLWELL

delivered the opinion of the court:

On July 18, 1991, following a jury trial defendant, Frederick L. Jahn, was found guilty of committing aggravated criminal sexual abuse by intentionally touching the vaginal area of R.R for purposes of sexual arousal; the complaining victim was five years old at the time of the offense (see Ill. Rev. Stat. 1989, ch. 38, par. 12— 16(c)(1)(i)). Following the denial of his post-trial motion, defendant was sentenced to 10 years’ imprisonment, and he timely appealed.

On appeal, defendant argues (1) that he was denied a fair trial because the trial court admitted into evidence allegedly unreliable and prejudicial out-of-court statements made by the minor victim to a police sergeant and a therapist contrary to the statutory exception to the hearsay rule (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10); (2) that despite defendant’s failure to object, the therapist’s testimony regarding the victim’s statement to him that sexual abuse had taken place over a period of time should not have been heard by the jury because it lacked probative value and was very prejudicial; and (3) that he was denied a fair trial when the prosecutor stated in closing argument that the victim had identified defendant in a pretrial photographic lineup when she had not actually identified defendant from a photograph according to the police officer’s testimony. We affirm.

RELIABILITY HEARINGS

The record reveals that, at a hearing on June 18, 1991, the trial court found R.R., the six-year-old victim, competent to testify at trial, but no ruling was then made regarding the competency of her younger sister A.R. to testify. Defendant filed a motion in limine on July 9, 1991, to prevent testimony regarding certain statements made by A.R. and by R.R.’s mother Rosemary, concerning defendant. The motion was granted on July 16, 1991.

Pursuant to the requirements of section 115 — 10 of the Code of Criminal Procedure of 1963 (Code), defendant also sought to exclude out-of-court statements made by R.R. for lack of reliability. In a prosecution for sexual acts perpetrated upon a child under age 13 as defined by the statute, under the conditions stated in pertinent part here, section 115 — 10 of the Code permits the following to be admitted as an exception to the hearsay rule:

“(1) [Testimony by such child of an out of court statement made by such child that he or she complained of such act to another; and
(2) testimony of an out of court statement made by such child 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 act perpetrated upon a child.
(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 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.” Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10.

R.R. had made statements to Detective Sergeant Keane Hudson in a telephone call on February 5, 1991, and in conferences held on February 6 and 7, 1991, at the Lee County State’s Attorney’s office; to Sergeant Michael Koppien in an interview at the Phelps residence on December 10, 1990; to her mother Rosemary in conversations on December 25 or 26, 1990, and February 4, 1991; and to her therapist, Jerry Fox, on or after February 8,1991.

A reliability hearing pursuant to section 115 — 10 was held on July 12, 1991, regarding statements R.R. made about the alleged sexual conduct of defendant. Rosemary testified that she noticed bizarre behavior by the victim’s younger sister A.R. in September or October 1990. A.R. told her that she had a boyfriend named “Johnny Kelker.” R.R. also began talking about Johnny Kelker in November. R.R. told her mother Rosemary on December 25 during a trip back to the hospital that she had to tell her mother something. R.R. said Johnny Kelker was the defendant, Fred Jahn. Defendant was Rosemary’s cousin. R.R. told her mother that Fred did bad things to her. Fred made A.R. and R.R. go into his bedroom where A.R. had to lie on the bed and R.R. had to stand at the end of the bed and watch A.R. “suck Fred’s worm” and then Fred “sucked her woochie.” These were terms the children used to describe sexual organs. R.R. also said that Fred had touched her “woochie.” When Rosemary asked if he had put anything inside her “woochie,” R.R. said no and then did not want to talk further about the subject.

Rosemary testified that she had gone to Oakwood Hospital, a psychiatric hospital in Rockford, on the day after Thanksgiving because of emotional stress related to the suspected sexual abuse, and she was released in February 1991. In October she had noticed that A.R. started acting oddly and began talking about her boyfriend, Johnny Kelker. Examples of her odd behavior included her trying to stick a knife up inside herself and playing with the dog’s penis.

In a telephone conversation from the Oakwood Hospital on December 26, when Rosemary asked if R.R. had identified Fred in the police station photographs, R.R. said she thought one of the pictures was Fred’s, but she did not identify Fred because she was scared since Fred had done bad things to her. In a February 4, 1991, conversation, R.R. told Rosemary that she was riding her bicycle three or four days before and Fred had stopped and talked to her on the highway. Fred asked her to come to his house and “do bad things.” Rosemary then called the police to report the incident.

Rosemary was present at an interview on February 6 in the State’s Attorney’s office. Also present were Susan Swegle, Keane Hudson, and Dan Fish. At that interview, R.R. said that Fred had A.R. lie down on his bed and R.R. had to stand at the end of the bed to watch A.R. suck Fred’s “worm,” and Fred sucked A.R.’s “woochie.” R.R. said that Fred was the same person as Johnny Kelker. Fred also put his hands down R.R.’s shorts inside her underwear and touched her “woochie” with his finger, and it hurt her. R.R. told him to stop, but he did not. This incident occurred sometime before the Fourth of July when R.R. was wearing her “flash” shorts, which were fluorescent green and pink. Rosemary believed that R.R. was telling the truth. Rosemary was cross-examined particularly regarding the various dates of the incidents.

Sergeant Koppien of the Lee County sheriff’s department testified that he was involved in the investigation of defendant and, on November 26, he showed R.R. a photographic lineup. She did not identify Johnny Kelker’s picture in the lineup but indicated that Johnny Kelker was the one who committed the sexual abuse.

On December 10, 1990, Koppien interviewed R.R. at 10 p.m. at her grandfather’s residence in Lee Center, Illinois. Koppien learned that Fred Jahn used the name Johnny Kelker. R.R.

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Cite This Page — Counsel Stack

Bluebook (online)
615 N.E.2d 1270, 246 Ill. App. 3d 689, 186 Ill. Dec. 213, 1993 Ill. App. LEXIS 949, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-jahn-illappct-1993.