People v. Mitchell

588 N.E.2d 1247, 225 Ill. App. 3d 708, 168 Ill. Dec. 3, 1992 Ill. App. LEXIS 334
CourtAppellate Court of Illinois
DecidedMarch 11, 1992
Docket2-90-0281
StatusPublished
Cited by13 cases

This text of 588 N.E.2d 1247 (People v. Mitchell) 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. Mitchell, 588 N.E.2d 1247, 225 Ill. App. 3d 708, 168 Ill. Dec. 3, 1992 Ill. App. LEXIS 334 (Ill. Ct. App. 1992).

Opinion

JUSTICE BOWMAN

delivered the opinion of the court:

The defendant, David Lynn Mitchell, was charged by information with criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12—13(a)(3)) and aggravated criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12—14(b)(l)). Following a jury trial, defendant was found guilty of both offenses. The trial judge granted defendant’s motion for a new trial as to the criminal sexual assault conviction and denied the motion as to the aggravated criminal sexual assault conviction. Defendant was subsequently sentenced to 15 years’ imprisonment on the aggravated criminal sexual assault conviction, and this timely appeal followed.

On appeal, defendant contends that: (1) he was denied a fair trial due to (a) prosecutorial misconduct and (b) ineffective assistance of defense counsel; (2) he was not proved guilty beyond a reasonable doubt; and (3) he was denied a fair trial when the trial court improperly admitted into evidence a videotaped statement made by the complainant prior to trial. Based on our resolution of this last issue, we reverse defendant’s conviction and remand for a new trial.

Prior to trial the Ogle County State’s Attorney indicated that a videotape of the complainant had been given to defense counsel. At that time, defense counsel stated that, since he was not present when the videotape was made, he intended to object to the use of the tape at trial. The trial judge indicated that he would defer ruling on the matter.

The following evidence was adduced at trial. The complainant, H.G., was nine years old at the time of the alleged assault in February 1989 and 10 years old at the time of trial in October 1989. H.G. testified that, one day during the previous school year, her mother called her at school and told her that she was going to Polo, Illinois, for the afternoon. H.G.’s mother told her to go home after school and said that defendant would be at home. Defendant was a friend of H.G.’s mother who had been staying at their house.

H.G. stated that, when she got home that afternoon, defendant was there. She went into her room, did some homework and then started a puzzle. As H.G. was starting her puzzle, defendant came in to the room, grabbed H.G.’s hand and pulled her into her mother’s bedroom. Defendant then removed both H.G.’s jeans and shirt and his own jeans and shirt. As H.G. was lying on her mother’s bed on her back, defendant got on top of her and “tried to put his private part inside [hers].” H.G. further testified that by “private part” she was referring to the area “between the legs” and “below the belly button.” H.G. said that it hurt when defendant did this.

H.G. also stated that defendant put his mouth on other parts of her body. She said that defendant sucked on her chest and “between the legs.” Next, H.G. stated that defendant put his hands on his own “private part” and rubbed up and down. H.G. added that “[w]hite stuff” came out of defendant’s private part and went onto the bed, H.G. and defendant. H.G. then demonstrated what had occurred using anatomically correct dolls.

On cross-examination, H.G. recalled that she and her mother had gone on rides with defendant, who was a truck driver, including trips to Des Moines, Iowa, and to Minnesota. H.G. stated that the Des Moines trip caused her to miss a few days of school. H.G. also admitted that on prior occasions she had told people that defendant was wearing a robe when the offense occurred. H.G. indicated that she had been thinking of the next evening on which defendant had worn a robe.

H.G.’s mother, Stephanie, also testified. Stephanie stated that she was a former truck driver and that she met defendant through her truck-driving friends in February 1989 at a restaurant in Rochelle, Illinois. On the night of February 10, defendant called Stephanie and asked her to pick him up at a truck stop. When Stephanie picked him up, defendant told her that he had been fired. Stephanie then brought defendant back to her home, where he stayed with her and H.G. for about 10 days. Stephanie stated that, after 10 days, she told defendant to leave because she was the recipient of an Ogle County Housing Authority grant, which would not allow her to have anyone live with her for more than 14 consecutive days. Defendant moved out on February 21.

On February 17, defendant was still living in Stephanie’s apartment. Stephanie stated that, on that date, she had to go to Polo, Illinois, to deliver some papers to the Housing Authority. Before leaving, she called H.G.’s school and left a message that H.G. should go straight home after school and that defendant would be there waiting for her. Stephanie left for Polo at 2:30 p.m. and returned home between 4:30 and 5 p.m.

A week to 10 days after defendant moved out, H.G. complained of feeling a burning sensation when she urinated. Stephanie took H.G. to a doctor where certain cultures were taken. During a follow-up visit, Dr. William Johanson told Stephanie that something had happened to H.G. According to Stephanie, H.G. then stated that defendant had molested her. Dr. Johanson and his nurse were also present when H.G. made that statement. Dr. Johanson told Stephanie that he would have to report the situation to the Department of Children and Family Services (DCFS). Stephanie then went home and called the police. Thereafter, Marie Flosi of DCFS and Detective Robbie Buck of the Rochelle police department came to talk to Stephanie.

On cross-examination, Stephanie stated that she and H.G. never rode to Minnesota with defendant. She admitted that they did go with defendant to Joslyn, Illinois, on one occasion and that, on another, they drove to Des Moines in the middle of the night to meet defendant at a motel room. Stephanie stated that she and H.G. did not spend the night with defendant in Des Moines; rather, they spent a few hours at defendant’s motel room and then returned to Rochelle. Stephanie was also called to the stand as an adverse witness during defendant’s case in chief. Stephanie then admitted that she and defendant had had sex during their relationship and that she did not have herpes.

Marie Flosi testified that she was an investigator for DCFS. On March 21, 1989, she participated in the investigation of the report of sexual abuse involving H.G. Flosi, along with Detective Buck and Assistant State’s Attorney Robin Minnis, had a conversation with H.G. in the Ogle County courthouse building regarding the incident. The conversation was videotaped. Flosi also acknowledged that, prior to the day on which the videotape was made, she and Detective Buck interviewed H.G. at the Rochelle police department for about one-half hour. According to Flosi’s notes taken on March 15, H.G. told her that defendant was wearing a robe when the incident took place.

The State subsequently played for the jury the videotape of the March 21 interview wherein H.G. detailed for Detective Buck, Ms. Flosi and Assistant State’s Attorney Minnis the facts surrounding the alleged sexual assault. While we note that some discrepancies do exist, for the most part, H.G.’s statements on the videotape were consistent with her testimony at trial. The State then rested its case.

The defendant testified in his own behalf and stated that he was a 44-year-old truck driver.

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Cite This Page — Counsel Stack

Bluebook (online)
588 N.E.2d 1247, 225 Ill. App. 3d 708, 168 Ill. Dec. 3, 1992 Ill. App. LEXIS 334, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-mitchell-illappct-1992.