People v. Robert P. Corrected Opinion - 2/28/05

821 N.E.2d 1259, 354 Ill. App. 3d 1051, 290 Ill. Dec. 685, 2005 Ill. App. LEXIS 3
CourtAppellate Court of Illinois
DecidedJanuary 6, 2005
Docket3-03-0468 Rel
StatusPublished
Cited by4 cases

This text of 821 N.E.2d 1259 (People v. Robert P. Corrected Opinion - 2/28/05) 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. Robert P. Corrected Opinion - 2/28/05, 821 N.E.2d 1259, 354 Ill. App. 3d 1051, 290 Ill. Dec. 685, 2005 Ill. App. LEXIS 3 (Ill. Ct. App. 2005).

Opinions

JUSTICE SCHMIDT

delivered the opinion of the court:

The defendant was convicted in Putnam County circuit court of aggravated criminal sexual assault, predatory criminal sexual assault of a child and aggravated criminal sexual abuse. He was sentenced to 15 years for each of the assault charges, to run consecutively, and a concurrent 6-year term for the abuse charge. He alleges a number of evidentiary errors and asserts he was denied a fair trial.

BACKGROUND

The victim, A.E (born on September 23, 1991), is the adopted child of the defendant and his wife. Frior to being adopted by the Es in April of 1999, A.E resided with the F.s for approximately one year. William F. is Mrs. E’s brother. On March 11, 2002, A.E reported to her special education teacher, Ms. May, that she had been touched inappropriately by the defendant. On March 12, 2002, she was interviewed by sheriffs deputy John Ellena and Department of Children and Family Services (DCFS) investigator Judy O’Brien. During the interview, A.E described a long-standing course and pattern of abuse beginning shortly after she was adopted by defendant. O’Brien filed a report with the State indicating that there was credible evidence to support A.E’s allegations of sexual abuse.

On March 18, 2002, A.E was interviewed by Kari Koster, the director of Henry County Children’s Advocacy Center. In the videotaped interview, Koster posed open-ended questions to A.E about the abuse. In response, A.E gave detailed answers describing the abuse to which she had been subjected, including times, dates and details concerning specific incidents of abuse. A.E also exhibited sexual knowledge that Koster considered advanced for a 10-year-old child. This videotaped interview was played to the jury during Koster’s trial testimony despite defendant’s objection.

O’Brien and Koster were witnesses at trial and questioned regarding their qualifications. Koster testified that she worked as a “forensic interviewer” who interviewed children to discover the existence of sexual abuse. She stated she had attended several conferences and training classes related to interviewing abused children and that she had interviewed over 300 abused children as a forensic interviewer. O’Brien testified that she had worked for DCFS for 10 years and had interviewed over 1,000 children.

Koster was asked to describe her interviewing technique. She responded that she attempted to elicit from the child a stream-of-consciousness narrative describing the abuse without the use of specific cues or questions. Koster was allowed to comment on whether, in her opinion, A.E’s accusations were credible. Koster believed they were. O’Brien was also allowed to testify whether she believed A.E to be credible. She did.

On March 13, March 26, and April 30 of 2002, A.E was examined by Nancy Auer. Ms. Auer is a nurse at the Fediatric Resource Center. During the initial examination, the nurse noted an abrasion on A.E’s hymen. Ms. Auer testified this was consistent with sexual abuse. In the second examination, Ms. Auer noted that the abrasion appeared to be healing. In the third examination, Ms. Auer observed continued healing of the abrasion and also observed several blisters that had erupted in A.E’s clitoral area and on her labia majora. A culture from the blisters indicated the presence of the herpes II virus, commonly referred to as genital herpes.

A.E’s medical history indicated that in July of 2000, she was examined by physician assistant Robert Girard, who diagnosed her with herpes and noted that she was suffering from her “primary outbreak.” Girard testified that his.examination of A.E revealed that she exhibited symptoms of genital herpes, and therefore, he referred her to Dr. Sean Bailey to perform a blood test. The blood test confirmed the existence of the herpes virus.

Fhysician assistant Girard further testified that approximately one year prior to diagnosing A.E with genital herpes, he diagnosed the defendant with genital herpes. Girard ordered no viral test on the defendant but prescribed an antiviral medication. The defendant’s herpes infection was confirmed on April 17, 2000, when he was examined by Dr. Constantino Ferales. Blood tests performed by Perales confirmed the presence of both the herpes I and herpes II viruses.

Dr. Sean Bailey testified on behalf of defendant. Dr. Bailey testified that he saw A.E as a patient on August 2, 2000. The purpose of her visit revolved around some lesions in her genital area. Cultures taken from the lesions came back positive for herpes. Dr. Bailey noted that he “talked with [A.E] in the presence of her mother, defendant’s wife, and asked her if she’d ever been touched or had anybody done anything with her in her genital area,” and “she said no.”

Defense counsel then asked Dr. Bailey if herpes can be transmitted nonsexually. Dr. Bailey stated, “There’s some speculation that it can. You can get it through kissing of course, and you can — there’s some speculation that you can get it through autoinoculation.” He continued on direct examination to note that he had “never seen a case” of autoinoculation but, in his opinion, it theoretically could happen. On cross-examination, Dr. Bailey stated that he had never seen any proven case studies noting herpes could be transmitted by autoinoculation. When discussing his failure to report the fact that an eight-year-old patient of his had genital herpes, a sexually transmitted disease, to DCFS, Dr. Bailey stated that in hindsight, “Yeah, I would have reported to DCFS.”

A.E testified that she lived with the E’s for three to four years. She used to go shopping with her mother and, at times, watch television with the defendant. She stated that the defendant touched parts of her body that he “wasn’t supposed to.” After claiming that these parts included her “front private,” she identified her genital area on a chart as the area which defendant inappropriately touched.

She testified that he touched this area both with his hand and his penis. He would start with his hand while she was either sitting or lying down. The touching took place inside her clothes. The first time the touching took place was within a few weeks after she moved in with the E’s.

She stated that the defendant told her not to tell anyone about these encounters. When they were over, defendant would go into the bathroom, get cleaned up and tell A.E to do the same. At times, A.E would have to wash off a “clear liquid.” The defendant would, at times, use Vaseline on himself and A.E

On cross-examination, A.E stated that these encounters happened “almost” every day. A.E stated that on March 11, 2002, she told her special education teacher about the touching. On that day, she mentioned that the last encounter took place on March 10, 2002.

A.E admitted during her testimony that she lied to her special education teacher on March 11, 2002, when she told the teacher that the defendant inappropriately touched her on March 10, 2002. A.E also admitted to telling therapist Diane Funk, in 1999, that no one had inappropriately touched her. At trial, A.E stated that the last time the defendant inappropriately touched her was August of 2001.

The defendant presented several witnesses in an attempt to impeach A.E’s credibility and bolster his own.

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Related

People v. Berrios
2018 IL App (2d) 150824 (Appellate Court of Illinois, 2018)
People v. Wills
2017 IL App (2d) 150240 (Appellate Court of Illinois, 2017)

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Bluebook (online)
821 N.E.2d 1259, 354 Ill. App. 3d 1051, 290 Ill. Dec. 685, 2005 Ill. App. LEXIS 3, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-robert-p-corrected-opinion-22805-illappct-2005.