People v. Sexton

515 N.E.2d 1359, 162 Ill. App. 3d 607, 114 Ill. Dec. 88, 1987 Ill. App. LEXIS 3415
Appellate Court of Illinois·Decided November 25, 1987·No. 4-87-0096·Published·Cited by 38 cases

Opinion

JUSTICE McCULLOUGH

delivered the opinion of the court:

After a jury trial, defendant was convicted of two counts of aggravated criminal sexual assault and one count of aggravated criminal sexual abuse. (Ill. Rev. Stat. 1985, ch. 38, pars. 12 — 14(b)(1), 12— 16(c)(1).) Defendant argues he was not proved guilty beyond a reasonable doubt and that the trial court erred in admitting: (1) the State’s Attorney’s testimony; (2) hearsay testimony under the corroborative complaint and treating physician’s exceptions to the hearsay rule; and (3) a photograph of complainant’s genital area. Defendant argues his due process rights to a fair trial were violated by the mentioning of a possible polygraph test and the prosecutor’s closing argument.

We reverse and remand.

The complainant, defendant’s 10-year-old niece, testified that she and her brother stayed at defendant’s house the previous summer. While she was taking a bath, defendant entered the bathroom and touched her “private.” He told her not to tell anyone and left. Defendant bothered her twice while she was on the couch. Her aunt was home on one occasion and gone on the other. The second time, her brother was in the bathroom. Defendant pulled down her pants, said he liked playing with her, and touched her “private with his private.” Complainant stated that it hurt and caused bleeding. The third occasion consisted of the same acts as the first two.

Complainant’s mother testified defendant is her brother-in-law. After the children returned home, she noticed a personality change in complainant. She and her other sister told complainant that it was illegal for anyone to have touched her. Complainant indicated that defendant had assaulted her.

Gary Wheat, a detective with the Paris police department, testified that on August 1, 1986, in the State’s Attorney’s office, he and the State’s Attorney interviewed defendant. Wheat asked defendant to come to the office for an interview and told him that he was going to be charged. The State’s Attorney, Michael McFatridge, did most of the talking. Defendant indicated that since he was going to be charged he might as. well admit the offenses. He stated that he had fondled complainant while she was bathing. McFatridge asked defendant to give Wheat a complete statement and left.

Wheat further testified that defendant admitted two incidents during which he touched complainant’s genitals with his hands and penis. These events occurred while she was on the couch. Wheat believed defendant was over 40 years of age.

On cross-examination, Wheat stated that he had interviewed complainant twice about an unrelated matter. Carol Sexton, defendant’s wife, brought complainant to the police station about the theft of a class ring. Wheat learned the complainant and her brother had taken the ring and lost it. During the first interview about the ring, complainant lied to him.

State’s Attorney McFatridge testified that prior to his August 1, 1986, interview with defendant, he talked to Linda Chittick, an investigator for the Illinois Department of Children and Family Services (DCFS), and Wheat about the case. They had several discussions and determined the evidence was sufficient. Defendant would be charged regardless of whether he gave a statement. Part of the goal of the August 1 meeting was to obtain a confession. McFatridge told defendant he was the one who would charge him, make sentencing recommendations, and the State’s Attorney’s office would consider recommending probation if defendant would cooperate with the police. After defendant called his wife, he admitted fondling complainant.

At this point, it should be noted that this cause was prosecuted by an assistant State’s Attorney of Edgar County. The record does not show any disqualification of McFatridge, State’s Attorney of Edgar County. In response to defendant’s pretrial discovery, McFatridge was listed as a potential witness. On cross-examination, McFatridge admitted that he had known the prosecutor for some time. As assistant State’s Attorney, the prosecutor took general directions from him. McFatridge asked defendant to come into the office because all of the evidence pointed to defendant. He discussed the case with Wheat and Chittick, viewed videotapes, and reviewed medical records.

On redirect examination, McFatridge stated that his professional and social acquaintance with the prosecutor did not affect his testimony. As an officer of the court, he was sworn to uphold the law. He had a special duty to the county and State as a State’s Attorney. One possible outcome of lying in testimony or in a pleading would be the loss of his license. He would not lie under oath and prided himself in running an honest office. He had talked to defendant because it was determined there was substantial evidence against defendant.

Dr. W. R. Elghammer, a pediatrician, testified that he regularly sees children who have been sexually abused. He examined complainant on July 7, 1986. Over defendant’s objection, Elghammer testified that complainant told him that defendant had penetrated her vagina and attempted anal penetration. The court instructed the jury that the evidence was admissible for the limited purpose of explaining the type of examination performed and not for the truth of the matter asserted.

Elghammer further testified that complainant’s hymen was not intact and there was an irregular tearing. Her vaginal opening was four times normal size. In Elghammer’s opinion, complainant’s injury could not have been caused by anything other than penetration. A fall would have caused bruising and swelling rather than a tear. It was possible the injury occurred by insertion of a male penis. Elghammer further stated the injury occurred three to four weeks prior to July 7, 1986.

Chittick testified that she investigated the instant case. Defense counsel asked Chittick to relate the substance of a conversation that she had with Wheat. Chittick stated that she and Wheat discussed the possibility of setting up a polygraph examination.

Defendant’s daughters and son testified that defendant did not have an opportunity to commit the offenses. They also testified that complainant had taken one of the daughters’ class rings. Defendant’s wife testified that she did not hear defendant go downstairs after he came to bed on any night that week. Complainant took two baths, and defendant did not enter the bathroom on either occasion.

Defendant testified in his own behalf, denying he touched complainant. He stated the conversation related by Wheat and McFatridge had not occurred.

Defendant argues he was not proved guilty beyond a reasonable doubt because he had an alibi, McFatridge’s and Wheat’s testimonies were unworthy of belief, complainant’s testimony was not clear and convincing, and complainant had a motive to lie. A conviction for aggravated criminal sexual abuse or assault, where defendant denies the charge, will be upheld where the complainant’s testimony is clear and convincing or it is corroborated by other evidence. (In re B.J.S. (1987), 151 Ill. App. 3d 1023, 503 N.E.2d 1198; People v. Server (1986), 148 Ill. App. 3d 888, 499 N.E.2d 1019

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People v. Sexton, 515 N.E.2d 1359, 162 Ill. App. 3d 607, 114 Ill. Dec. 88, 1987 Ill. App. LEXIS 3415 (Ill. Ct. App. 1987).

515 N.E.2d 1359 (People v. Sexton) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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