People v. Kitch

915 N.E.2d 29, 392 Ill. App. 3d 108, 333 Ill. Dec. 508, 2009 Ill. App. LEXIS 558
CourtAppellate Court of Illinois
DecidedJune 25, 2009
Docket4-05-0982
StatusPublished
Cited by12 cases

This text of 915 N.E.2d 29 (People v. Kitch) 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. Kitch, 915 N.E.2d 29, 392 Ill. App. 3d 108, 333 Ill. Dec. 508, 2009 Ill. App. LEXIS 558 (Ill. Ct. App. 2009).

Opinion

JUSTICE STEIGMANN

delivered the opinion of the court:

Following an October 2005 trial, a jury convicted defendant, Richard D. Kitch, of nine counts of predatory criminal sexual assault of a child (720 ILCS 5/12 — 14.1(a)(1) (West 2000)) and one count of aggravated criminal sexual abuse (720 ILCS 5/12 — 16(c)(1)(i) (West 2002)). The trial court later sentenced him to (1) 9 consecutive natural-life prison terms for predatory criminal sexual assault of a child and (2) a concurrent 14-year extended-term sentence for aggravated criminal sexual abuse.

Defendant appealed, arguing that (1) the United States Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), renders section 115 — 10 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115 — 10 (West 2004)) unconstitutional in that it violates the confrontation clause of both the United States and Illinois Constitutions (U.S. Const., amend. VI; Ill. Const. 1970, art. I, §8), and (2) the trial court erred by imposing (a) consecutive natural-life prison terms for predatory criminal sexual assault of a child and (b) an extended prison term for aggravated criminal sexual abuse.

In April 2007, this court affirmed defendant’s convictions but modified his natural-life prison sentences from consecutive to concurrent terms. People v. Kitch, No. 4—05—0982 (April 7, 2008) (unpublished order under Supreme Court Rule 23).

Defendant filed a petition for leave to appeal with the Supreme Court of Illinois. In January 2009, that court denied his petition but also entered the following nonprecedential supervisory order:

“In the exercise of this court’s supervisory authority, the Appellate Court, Fourth District, is directed to vacate its order in People v. Kitch, No. 4 — 05—0982 (April 7, 2008). The appellate court is instructed to reconsider its decision in light of this Court’s opinion in In re Rolandis G., [232 Ill. 2d 13, 902 N.E.2d 600 (2008)], to determine whether a different result is warranted.” People v. Kitch, 231 Ill. 2d 643, 899 N.E.2d 1077 (2009) (nonprecedential supervisory order on denial of petition for leave to appeal).

In accordance with the supreme court’s directive, we vacate our earlier decision in this case. Further, after reconsidering this case in light of Rolandis G., we conclude that a different result is not warranted. Accordingly, we affirm defendant’s conviction as modified and remand with directions.

I. BACKGROUND

In February 2005, the State charged defendant with multiple counts of criminal sexual assault and abuse perpetrated against his stepdaughter, K.J.K. (born January 8, 1991), and his stepson, M.J.B. (born May 5, 1994). Specifically, the State charged defendant with (1) predatory criminal sexual assault of a child in that between March 2000 and March 2003, he (a) placed his penis in the mouth of K.J.K. (counts I and II); (b) allowed his penis to have contact with KJ.K’s vaginal area (count III); (c) placed his penis in K.J.K.’s vagina (counts IY y and VI); (d) placed his penis in the mouth of M.J.B. (counts IX, X, and XI) and (2) aggravated criminal sexual abuse in that in November 2002, he knowingly touched M.J.B.’s penis with his fingers for the purpose of sexual arousal (counts VII and VIII). (The State dismissed count VIII prior to defendant’s trial.)

A. The State’s Motion To Admit Testimony Pursuant to Section 115 — 10

In August 2005, the State moved to admit hearsay evidence of statements K.J.K. and M.J.B. made under section 115 — 10 of the Code (725 ILCS 5/115 — 10 (West 2004)). At an October 2005 hearing on the State’s motion, a forensic interviewer testified that she interviewed then 11-year-old K.J.K., which she conducted by handwriting (1) the questions she asked K.J.K. and (2) KJ.K.’s corresponding answers. Immediately after the interview, K.J.K. and her mother, Susan Kitch (who was not present during the interview), reviewed and signed the handwritten transcript. The forensic interviewer stated that K.J.K. did not hesitate in answering her questions and opined that her word-for-word transcription of her interview with K.J.K. was 99% accurate.

The Schuyler County sheriff testified that in March 2003, he interviewed then eight-year-old M.J.B., which he conducted by handwriting (1) the questions he asked M.J.B. and (2) M.J.B.’s corresponding answers. During the interview, M.J.B. told the sheriff that defendant (1) rubbed M.J.B.’s penis in a back and forth motion, (2) made him touch defendant’s penis, and (3) made him put defendant’s penis in his mouth on at least three different occasions. Immediately after the interview, M.J.B. and Susan (who was present during the interview) reviewed and signed the handwritten transcript.

The sheriff also testified about an April 2003 statement K.J.K. provided regarding the circumstances surrounding how defendant’s ejaculate was on her comforter, which he transcribed verbatim. K.J.K. explained that in December 2002, defendant was on top of her and attempted several times to force his penis inside her vagina, but it would not “fit.” Defendant then stopped trying, and as he stood up, he ejaculated onto her comforter.

After the State represented to the trial court that K.J.K. and M.J.B. would be testifying at trial, the court reviewed all three statements and found that (1) the statutory requirements for the admission of (a) K.J.K.’s March and April 2003 hearsay statements and (b) M.J.B.’s March 2003 hearsay statements under section 115 — 10 of the Code had been met and (2) the forensic interviewer and the sheriff would be permitted to testify to those statements at trial.

B. The Testimony Presented at Trial

The evidence presented at defendant’s October 2005 jury trial, which consisted, in part, of testimony from (1) a gynecologist, (2) Susan, (3) the forensic interviewer, (4) the sheriff, (5) State forensic scientists, (6) M.J.B., and (7) K.J.K. showed the following.

In July 2003, a gynecologist performed a physical examination of K.J.K. and concluded that based on defects found on the hymenal ring of K.J.K’s vaginal area, it was “very likely” that K.J.K. had been sexually abused. The gynecologist explained that a normal hymenal ring’s tissue is “tight” all the way around the ring, smooth, and with no defects. However, K.J.K.’s hymenal ring exhibited tension only in the lower portion, which she opined could have been caused by some external object penetrating through K.J.K.’s vaginal area. However, the gynecologist acknowledged that she could not specifically identify the object that caused the damage to KJ.K’s hymenal ring.

Susan testified that in 1999 she began dating defendant.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

People v. Elizondo
2021 IL App (1st) 161699 (Appellate Court of Illinois, 2021)
In re Brandon P.
2013 IL App (4th) 111022 (Appellate Court of Illinois, 2013)
People v. GARCIA-CORDOVA
2011 IL App (2d) 070550-B (Appellate Court of Illinois, 2011)
People v. Kitch
942 N.E.2d 1235 (Illinois Supreme Court, 2011)
People v. Clark
935 N.E.2d 1147 (Appellate Court of Illinois, 2010)
People v. Lara
Appellate Court of Illinois, 2010
People v. MAJOR-FLISK
923 N.E.2d 324 (Appellate Court of Illinois, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
915 N.E.2d 29, 392 Ill. App. 3d 108, 333 Ill. Dec. 508, 2009 Ill. App. LEXIS 558, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-kitch-illappct-2009.