People v. Sizemore

590 N.E.2d 520, 226 Ill. App. 3d 956, 168 Ill. Dec. 883, 1992 Ill. App. LEXIS 480
CourtAppellate Court of Illinois
DecidedMarch 31, 1992
Docket4-91-0532
StatusPublished
Cited by9 cases

This text of 590 N.E.2d 520 (People v. Sizemore) 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. Sizemore, 590 N.E.2d 520, 226 Ill. App. 3d 956, 168 Ill. Dec. 883, 1992 Ill. App. LEXIS 480 (Ill. Ct. App. 1992).

Opinions

JUSTICE McCULLOUGH

delivered the opinion of the court:

Following a jury trial in the circuit court of Woodford County, defendant Okell J. Sizemore was sentenced to a term of imprisonment of 90 months on his conviction for criminal sexual assault. (Ill. Rev. Stat. 1989, ch. 38, par. 12—13(a)(4).) Defendant was given credit for 71 days served in custody prior to sentencing.

On appeal, defendant raises two issues. Defendant argues he should have been given credit for 74 days served in the county jail as a result of the charge in this case. Defendant also argues the trial court improperly sent to the jury the written statement of defendant without redacting those portions which related to crimes for which he was not on trial or, in the alternative, that it was ineffective assistance of counsel for his counsel to fail to move to delete portions of the statement or to request a limiting instruction. We affirm.

The 15-year-old victim, K.R, lived with her mother, her brother and defendant in a family relationship. Defendant was the boyfriend of the victim’s mother. The testimony established that he was born on January 16, 1947, and that he had lived with the victim and her family for five years.

On October 18 and 19, 1990, the victim stayed home from school because she was ill. The victim testified that on one of those days, while she was watching television, defendant approached her and initiated sexual contact which culminated in intercourse. K.P. did not resist because defendant had beaten her on previous occasions and she was afraid of another beating.

In addition, there was evidence concerning the statements defendant made to the authorities after he was arrested in which he admitted the sexual assault. In the written statement defendant gave to Josh Hendrix, an investigator for the Illinois Department of Children and Family Services, defendant described in detail the incident for which he was charged and corrected what he described as inaccuracies in the victim’s description of the incident.

The defense attempted to attack the victim’s credibility through the testimony of defendant’s son, who stated he and the victim went to school on the days in question. In surrebuttal, the victim’s mother testified defendant’s son was no longer living with them in October 1990. In rebuttal, defendant’s son testified he had a court date on October 24, 1990, to which he was driven by defendant and for which he provided defendant’s address as his own. One of the neighbors also testified she saw defendant’s son in the home during the week of October 15,1990.

Defendant testified the statements he made, and in particular the written statement, were fabricated. He explained he was depressed, nervous, and upset when he was taken into custody. He and the victim’s mother had recently broken off their relationship for financial reasons unrelated to the incident for which he was being tried. He had not eaten or slept properly for the month prior to his arrest. He loved the victim’s mother and did not want to make her or her daughter out to be liars. He thought the victim’s mother “wanted me guilty, and I wanted to be guilty for her.”

In discussing what exhibits should be sent to the jury, defendant objected with regard to the written statement on the grounds previously asserted in a motion to suppress, but not for the reason now argued on appeal. Nor did defendant include this issue in his motion for a new trial. For these reasons, the issue is waived. People v. Enoch (1988), 122 Ill. 2d 176, 185-92, 522 N.E.2d 1124, 1129-32, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274; People v. Barrios (1986), 114 Ill. 2d 265, 275, 500 N.E.2d 415, 419.

Defendant does not argue that the giving of the written statement to the jury is plain error. (134 Ill. 2d R. 615(a).) Instead, defendant would have this court consider the issue by ascertaining whether he received ineffective assistance of counsel.

“The standards for evaluating ineffective assistance of counsel are set out in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, and People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246. In order to establish ineffective assistance of counsel so as to require reversal of a conviction, the defendant must demonstrate counsel’s performance was so deficient that the defense attorney was not functioning as ‘counsel’ as guaranteed by the sixth amendment of the United States Constitution. Defendant must show the deficient performance of counsel prejudiced the defense, deprived defendant of a fair trial, fell below an objective standard of reasonableness, and that the result would probably have been different had counsel not provided ineffective assistance. Allegations arising from matters of judgment or trial strategy will not support a claim of ineffective assistance of counsel.” (People v. Clark (1991), 207 Ill. App. 3d 439, 449-50, 565 N.E.2d 1373, 1380.)

Although the defendant’s written statement, which included references to other sexual acts between defendant and the victim for which defendant was not being tried, could not have been admitted to establish defendant’s propensity to commit the charged offense, this court has previously determined that evidence of other sexual acts with a victim is admissible to show the relationship and familiarity of the parties and to corroborate the victim’s testimony. Even when the fact that the defendant and victim had a continuing relationship or knew each other is not an issue, such evidence is admissible to demonstrate the intimacy of the relationship. (People v. Cregar (1988), 172 Ill. App. 3d 807, 821-22, 526 N.E.2d 1376, 1386.) Nevertheless, defendant argues his attorney should have sought to have the trial court edit the statement so as to eliminate references to other criminal acts or to seek an instruction which would limit the use of the other crimes evidence by the jury. Defendant suggests Blinois Pattern Jury Instructions, Criminal, No. 3.14 (2d ed. 1981) could be modified to state the appropriate limited purpose for the evidence.

The written statement included an admission by defendant that he had sexual relations with the victim 30 or 40 times during a three- to four-year period. A number of incidents were described in detail including one in which the victim allegedly crawled through a bathroom window in order to have sex with the defendant while he was on the toilet. In her argument to the jury, the first point defense counsel made was that the jurors were going to see the statement. She brought to the jurors’ attention the feelings defendant had toward the victim’s mother and the stress he felt as a result of the discontinuance of their relationship. She pointed to the fact that defendant had been considered possibly suicidal after his arrest and that special precautions-were taken with him.

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People v. Sizemore
590 N.E.2d 520 (Appellate Court of Illinois, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
590 N.E.2d 520, 226 Ill. App. 3d 956, 168 Ill. Dec. 883, 1992 Ill. App. LEXIS 480, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-sizemore-illappct-1992.