People v. Lane

2011 IL App (3d) 080858, 951 N.E.2d 1279, 351 Ill. Dec. 615
Appellate Court of Illinois·Decided July 18, 2011·No. 3-08-0858·Published·Cited by 6 cases

Opinion

951 N.E.2d 1279 (2011)
351 Ill. Dec. 615

The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Chad M. LANE, Defendant-Appellant.

No. 3-08-0858.

Appellate Court of Illinois, Third District.

July 18, 2011.

*1280 Kerry J. Bryson (argued) (Court-appointed), Office of the State Appellate Defender, Ottawa, for Chad M. Lane.

Terry A. Mertel, Deputy Director, State's Attorneys Appellate Prosecutor, Stewart Umholtz, State's Attorney, Thomas D. Arado (argued), State's Attorneys Appellate Prosecutor, Ottawa, for People.

*1281 OPINION

Justice LYTTON delivered the judgment of the court, with opinion.

¶ 1 Defendant, Chad M. Lane, was tried in absentia for predatory criminal sexual assault (720 ILCS 5/12-14.1(a)(1) (West 2006)) and aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(1)(i) (West 2006)). The jury found defendant guilty of all charges, and the trial court sentenced him to 30 years' imprisonment. Defendant filed a motion to reconsider, which the trial court denied. On appeal, defendant argues that (1) he should not have been tried in absentia, (2) the trial court did not properly instruct the jurors as required by Illinois Supreme Court Rule 431(b) (eff. May 1, 2007), and (3) the evidence was insufficient to prove him guilty of predatory criminal sexual assault. We reverse and remand.

¶ 2 On August 31, 2010, we issued an opinion, reversing and remanding defendant's conviction, finding that the trial court erred in trying defendant in absentia. People v. Lane, 404 Ill.App.3d 254, 343 Ill.Dec. 570, 935 N.E.2d 578 (2010). On May 25, 2011, the Illinois Supreme Court entered a supervisory order ordering us to vacate our judgment and reconsider in light of People v. Phillips, 242 Ill.2d 189, 351 Ill.Dec. 298, 950 N.E.2d 1126 (2011). We have reviewed Phillips and find that it supports our original decision in this case. Thus, we confirm our previous holding that the trial court erred in trying defendant in absentia.

¶ 3 The State filed a four-count information against defendant. Count I alleged that defendant committed predatory criminal sexual assault against his stepdaughter, S.M., by placing his finger in her vagina. Counts II through IV alleged that defendant committed aggravated criminal sexual assault against S.M. by kissing her neck and stomach and having her touch his penis with her hand.

¶ 4 On November 8, 2007, defendant was arrested. A court order from that date indicates that defendant was "called into open court" and "informed of the charge(s), right to counsel, right to bail and is furnished a copy of the Information." The order also indicates that defendant was advised "as to trial in absentia pursuant to 725 ILCS 5/113-4(e)." The order does not indicate that defendant entered a plea at that time. Defendant's arraignment was scheduled for a later date.

¶ 5 On December 31, 2007, defendant was arraigned. The written order from that date indicates that defendant was advised "as to trial in absentia." The order also indicates that "Defendant enters a plea of Not Guilty to the charge(s) and demands Jury Trial." The transcript from this hearing date shows that defendant requested a jury trial but does not show that the trial court admonished defendant regarding trial in absentia.

¶ 6 Defendant's jury trial was set for July 21, 2008. On that date, defendant failed to appear and was tried in absentia. Andrea Lane testified that she is defendant's wife. She has four children with defendant and one child, S.M., from a previous marriage. On November 3, 2007, S.M., who was 10 years old, was visiting for the weekend. At approximately 10 p.m., Andrea fell asleep on the living room couch. When she woke up at about 11 p.m., she went upstairs and found defendant and S.M. in her son's room. S.M. was lying on the bed with her feet dangling off. Defendant was on his knees in between S.M.'s legs. S.M.'s nightshirt was pulled up to her neck, and defendant was kissing her stomach. When defendant saw her, he left the room. After defendant left, Andrea asked S.M. if defendant was *1282 "fucking" with her. S.M. said "yes." Andrea then went downstairs and talked to defendant. Defendant said that S.M. started it, and he did not want her to feel rejected. The next morning, Andrea talked to S.M. about what happened. At first, S.M. said that defendant was just kissing her but eventually said that defendant had his hand in her pants.

¶ 7 S.M. testified that she last saw defendant in the fall of 2007. After the other children went to bed, she, her mom and defendant were in the living room. Her mom fell asleep on the couch. Defendant was sitting on a chair and asked S.M. to sit on his lap. When she refused, he made her. While she was sitting on his lap, defendant put his hand inside her underwear and touched her "private" "in inappropriate ways." She said that he moved his hand, but she did not feel his hand go inside of her. She denied that it hurt but said it felt "very uncomfortable." Then he made her touch his "private part" under his clothes. After that, he picked her up and took her upstairs to her brother's room. He put her on the bed and pulled up her shirt and started kissing her stomach and neck. He stopped when her mom came in the room.

¶ 8 Jennifer Norman, a forensic interviewer for the Children's Advocacy Center, interviewed S.M. on November 6, 2007. That interview was recorded, and the DVD was played for the jury. During the interview, S.M. said that a few days earlier she was at her mom's house. After her mom fell asleep, defendant starting sucking and kissing on her stomach and neck. He also touched her private area under her underwear. She said defendant touched her private "inside" with "his hand" and "his fingers." She said it hurt. He also made her touch his private area.

¶ 9 Eric Goeken of the Tazewell County sheriff's office testified that he interviewed defendant on November 6, 2007. That interview was recorded, and the DVD was played for the jury. During the interview, defendant claimed that on November 3, 2007, he was drunk and fell asleep. When he woke up, S.M. was sitting on his lap "doing things she shouldn't have been doing * * * to me and herself." He walked upstairs with S.M. and asked her if she was okay with what she had been doing. She said "yes." S.M. went into her brother's room and laid down sideways on the bed. Andrea walked in the room when he was finishing his "conversation" with S.M. At the end of the interview defendant asked, "What is an adult supposed to do when a 10-year-old touches him? * * * Is there a right response for that?"

¶ 10 Defendant's biological daughter, S.L., testified that she last saw defendant four years earlier, when she was nine years old. She visited him at his house for one month during the summer. Near the end of that month, she was sitting on the couch near defendant. Defendant told her to scoot over next to him. He put his arm around her and then moved his hand toward her breast area and touched her over her clothes. He placed his other hand on her knee and then moved it to her crotch area and touched her over her clothes. He continued to touch her for about 20 to 30 minutes.

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People v. Lane, 2011 IL App (3d) 080858, 951 N.E.2d 1279, 351 Ill. Dec. 615 (Ill. Ct. App. 2011).

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