People v. Moss

630 N.E.2d 850, 196 Ill. Dec. 685, 260 Ill. App. 3d 272, 1993 Ill. App. LEXIS 976
Appellate Court of Illinois·Decided June 28, 1993·No. 1-91-2371·Published·Cited by 6 cases

Opinion

JUSTICE CAMPBELL

delivered the opinion of the court:

Following a jury trial, defendant, Carl Moss, was convicted of two counts of aggravated criminal sexual assault and three counts of aggravated criminal sexual abuse, and sentenced to an extended prison term of 60 years. On appeal, defendant contends that: (1) the trial court erred in admitting hearsay statements at trial pursuant to section 115 — 10 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 115—10); (2) he was prejudiced by the prosecutor’s comments during rebuttal closing argument; and (3) the trial court erred in relying on an aggravating factor in sentencing him to an extended term of imprisonment. For the following reasons, we affirm the judgment of the trial court.

The following facts are relevant to this appeal. Prior to trial, the State filed a motion to present hearsay evidence pursuant to section 115 — 10 of the Code of Criminal Procedure. (Ill. Rev. Stat. 1989, ch. 38, par. 115—10.) The motion informed defendant of the State’s intent to offer out-of-court statements of complainant, J.Z., made to Ula Jankiewicz, J.Z.’s best friend; Dr. Sharon Ahart, the physician who examined J.Z. following the incident; and Iza Z., J.Z.’s mother. At a pretrial hearing, the State indicated that these three witnesses would testify at trial as to what J.Z. told them regarding defendant’s actions toward her. Defense counsel argued that the State’s witnesses were required to testify at the hearing in order for the court to determine the time, content and circumstances of J.Z.’s statements. The trial court disagreed with defense counsel’s contention and instructed the prosecutor to explain in detail what J.Z. said to each witness. After the prosecutor detailed the content of the testimony of the three witnesses, the trial court granted the State’s motion.

At trial, Iza Z. testified that she was born in Poland and came to the United States with her husband and J.Z. in 1985. After Iza separated from her husband, she moved to an apartment in Berwyn, Illinois, with J.Z., who was then eight years old. The lease for her apartment began on August 1, 1989, but Iza and J.Z. began moving things into the apartment during the last few days of July 1989. On July 31, 1989, J.Z. met Ted Moss, defendant’s seven-year-old son, and went to his apartment to play with him. Defendant and Ted lived directly across the alley from Iza and J.Z. For the next four days, J.Z. went over to defendant’s apartment every day. During that time, defendant called Iza to ask if he could take J.Z. to various places with Ted, including to a soccer game, tó the local swimming pool, and to the beach.

On August 4, 1989, Iza had a barbecue party and invited her friends and family. Iza’s best friend, Grace Jankiewicz, and Grace’s daughter, Ula, came to the party. Later, Grace told Iza that Ula had told Grace that something wrong was going on between J.Z. and defendant. After hearing that, Iza attempted to talk to J.Z. about it, but J.Z. would not talk to Iza.

The next day, Iza tried to talk to J.Z. again. At that time, J.Z. went to Iza’s bedroom and barricaded the door on the inside with a file cabinet. J.Z. then tried to go out the window to defendant’s apartment. J.Z. was crying and begging Iza to let her go. On the following day, Iza heard J.Z. tell Ula and Grace that defendant told J.Z. that J.Z. could tell her friend Ula a few things, but that if she told an adult, defendant would go to jail.

On August 7, 1989, Iza took J.Z. to the Berwyn police station and told police officers what she had heard from Ula and Grace about what J.Z. had told them. Iza then took J.Z. to Dr. Sharon Ahart at Mt. Sinai Hospital for an examination. Iza also took J.Z. to a counselor, whom J.Z. was still seeing at the time of trial. Iza testified that she discovered J.Z. "touching her bottom” on two occasions during this time.

On cross-examination, Iza stated she told Officer Domkowski that she learned from Grace that defendant had rubbed cream on J.Z.’s legs. Iza also told Officer Domkowski that defendant took J.Z. to a public pool, pulled his pants down while he was under water, and told J.Z. to look at him. Iza further told the Officer that J.Z. went to defendant’s house and took a shower with defendant, and that defendant washed J.Z. After Iza told the officer all of these things she had heard, Officer Domkowski asked J.Z. if these things had happened and J.Z. said "yes.” Iza acknowledged that she is presently divorced and that she filed for divorce in February 1989. Iza’s husband, Romuald, had been physically violent towards her and had brought guns into the house after Iza filed for an order of protection. After Romuald left, J.Z. would call him up because she wanted to see him, but Romuald did not visit J.Z. very often.

J.Z. testified that she is nine years old and in the fourth grade. J.Z. was eight years old when she moved to Berwyn. She became friends with Ted Moss, who was seven years old and lived next door. J.Z. went over to Ted’s house four days in a row. J.Z. met defendant on the first day she went to Ted’s house. J.Z. asked defendant where he worked, and defendant told her that he was a doctor. Defendant showed J.Z. a stethoscope, and touched her chest with it. Defendant then placed the stethoscope inside his pants above his penis and told J.Z. to listen.

J.Z. went back to defendant’s house the next day, and defendant took J.Z., Ted and another friend of Ted’s to Maple Pool in Berwyn. Defendant told J.Z. to go under the water and she did. Defendant then pulled his shorts down and J.Z. saw defendant’s penis. She then came back up out of the water. J.Z. did not know where Ted and his friend were during this incident.

The next day defendant took J.Z. and Ted to the beach. When they returned from the beach to defendant’s house, defendant and J.Z. went into defendant’s bedroom. Defendant and J.Z. took off their clothes and took a shower. Defendant washed J.Z.’s rear, vagina, and back with his hand. Defendant ran his finger in and out of J.Z.’s vagina. Defendant asked J.Z. to wash his penis with her hand and she did so. After the shower, defendant and J.Z. went into defendant’s bedroom and over to the bed. Defendant positioned J.Z. on the bed, lying on her back with her legs apart, and felt her in between her legs. Defendant knelt between her legs and rubbed his penis up and down on her vagina. J.Z. stated that "this stuff came out a little hole,” and defendant put it on her belly.

J.Z. stated that defendant did the same thing to her the next day. One time J.Z. licked defendant’s penis and it tasted salty. Defendant told J.Z. that what they were doing was a secret and that she was not to tell anyone or he would go to jail. Defendant told J.Z. to put her finger in and out of her vagina to make it bigger so his penis would fit into it. J.Z. stated that she did this. J.Z. further stated that defendant put his tongue on her vagina and into her mouth and told her it was called a "french kiss.” On one occasion, defendant put cream around her vaginal area.

One day defendant took J.Z. to a U-Haul trailer rental outlet. Defendant loaded some furniture into the trailer and drove to a man’s house. While they were in the car, defendant rubbed J.Z.’s vagina.

J.Z. told her secret to her best friend Ula on the night of the barbecue at J.Z.’s house. After J.Z.

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

People v. Moss, 630 N.E.2d 850, 196 Ill. Dec. 685, 260 Ill. App. 3d 272, 1993 Ill. App. LEXIS 976 (Ill. Ct. App. 1993).

630 N.E.2d 850 (People v. Moss) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

State v. Hirschkorn
2002 ND 36 (North Dakota Supreme Court, 2002)
People v. Williams
Appellate Court of Illinois, 1997
People v. Pence
641 N.E.2d 933 (Appellate Court of Illinois, 1994)
People v. Guajardo
636 N.E.2d 863 (Appellate Court of Illinois, 1994)
People v. Gallo
632 N.E.2d 99 (Appellate Court of Illinois, 1994)