People v. Ticey

574 N.E.2d 810, 214 Ill. App. 3d 1043, 158 Ill. Dec. 697, 1991 Ill. App. LEXIS 971
CourtAppellate Court of Illinois
DecidedJune 11, 1991
DocketNo. 1—88—2815
StatusPublished
Cited by4 cases

This text of 574 N.E.2d 810 (People v. Ticey) 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. Ticey, 574 N.E.2d 810, 214 Ill. App. 3d 1043, 158 Ill. Dec. 697, 1991 Ill. App. LEXIS 971 (Ill. Ct. App. 1991).

Opinion

PRESIDING JUSTICE SCARIANO

delivered the opinion of the court:

After a bench trial, David Ticey was convicted of criminal sexual assault (use or threat of force), criminal sexual assault (by family member against victim under 18 years old), aggravated criminal sexual assault (causing bodily harm) and aggravated criminal sexual assault (threatening or endangering life) against Sherry Johnson. On appeal, he claims that inasmuch as he was found to have committed only one act, he could be convicted of only one count of aggravated criminal sexual assault, and that there was insufficient evidence to support his convictions. He also charges that he was denied a fair trial (1) because of the admission of a prior inconsistent statement of the victim and (2) because certain questions put to the victim by the prosecutor implied, without sufficient support, that she was coerced into recanting that prior statement. Ticey seeks correction of his mittimus to reflect a conviction of only one count of aggravated criminal sexual assault, or a reversal of his convictions, either outright or with a remand for a new trial.

Johnson testified at trial that at the time of the incident she was living with her mother, her baby, and her brother, Ticey. At around 12:30 a.m. on November 13, 1987, a male entered her room, choked her, stuck his nails into her skin and raped her. The assailant was wearing a condom. Her room was dark except for a light shining from a bathroom. Her mother and baby were there at the time, but Ticey, who had been home earlier, had left. Johnson testified that Ticey was not her attacker. She admitted, however, that while in the hospital following the rape she told Detective Ptak of the Chicago police department that Ticey had raped her, basing her accusation on her assailant’s voice and on the way he smelled. In response to the question, “Sherry, when you told Detective Ptak when you met him in the hospital that it was your brother, you were sure it was your brother on that date, weren’t you?” Johnson stated:

“Yes, and I was calling for my brother to help me, I was calling, I was scared, I was calling for him to help me and they asked, asking me all the questions at the same time, that’s what happened, he was asking me questions and he was asking me questions so I just said David, I said, my brother’s name.”

Johnson further testified on direct examination that she again, on November 16, 1987, told Ptak and an assistant State’s Attorney that her brother had raped her. She also stated that she did not remember whether her mother was with her when she identified her brother during that meeting, but when asked, “Do you remember your mother yelling at you and dragging you out of the office?” she replied, “She didn’t get in to get me, she didn’t touch me.” On cross-examination, however, Johnson stated that she had told Ptak and the assistant State’s Attorney during the meeting that she “couldn’t be sure” who attacked her.

Ticey called home almost every day from jail in order to talk with his girlfriend; Johnson often answered the phone when he called. She testified, however, that before she returned to her house, after she had stayed with a friend for awhile, she was saying that Ticey wasn’t her rapist. Johnson remembered meeting with an assistant State’s Attorney on December 15, 1987, but could not recall telling him that she could not be sure who raped her. However, when confronted with a letter she wrote to the assistant State’s Attorney, she remembered having told him that she wanted to drop the charges, that she wasn’t sure who had raped her, that one week after the event she saw her assailant in a store and that she had told her mother that she had seen the attacker.

Detective Thomas Ptak testified that he met with Johnson at the hospital on November 13, 1987, and that, “She was shaking, she was crying, she had noticeable bruises about her neck and swelling also.” Johnson told him that Ticey had raped her and that she knew her brother was the rapist because

“while laying in her bed she saw him come into her room, there was a light on in the bathroom just across from the room, she saw his face, she knows his height and weight.
She also said he has a peculiar body odor about him and she identified him from all of those, his face, the height, weight and the odor of him.”

On November 16, 1987, Ptak met with Johnson and an assistant State’s Attorney. During that meeting, Johnson again identified Ticey as her assailant. During the interview, Johnson’s mother was holding her and had her arms around her. Johnson’s emotional condition was such that, “[ajfter a slight confrontation she again broke down, began crying.” According to Ptak, Johnson never denied during the meeting that Ticey committed the attack.

Ticey, in defense, introduced evidence that sperm was found in Johnson’s vagina following the attack. He also introduced an allegedly prior inconsistent statement by Johnson, the content of which does not appear in the record.

The trial judge found Ticey guilty “as charged in the indictment” and sentenced him to 10 years in the custody of the Illinois Department of Corrections.

Ticey first argues that because he was found to have committed only one act, and because criminal sexual assault is a lesser included offense of aggravated criminal sexual assault, the trial court erred in convicting him of any crimes other than one count of aggravated criminal sexual assault. The State does not contest this allegation, and because we find no evidence of more than one act, we hold that one conviction for aggravated criminal sexual assault and both convictions for criminal sexual assault should be vacated; Ticey’s mittimus should be modified accordingly.

Ticey next alleges that although the testimony of a single witness can sustain a conviction, such testimony cannot be the sole basis for a conviction when it was obtained before trial and when it was contradicted by that same witness’ exculpatory testimony at trial. Ticey further maintains that even if that prior inconsistent statement could sustain a conviction, there must be sufficient evidence from which one could conclude that it was reliable; there was, he argues, insufficient evidence that Johnson’s initial statement was reliable to justify such a conclusion.

Ticey cites California v. Green (1970), 399 U.S. 149, 26 L. Ed. 2d 489, 90 S. Ct. 1930, as authority for his proposition that Johnson’s prior inconsistent statement identifying him as her assailant could not be used as the basis for his conviction. In Green, the Court held that a witness’ prior inconsistent statement could be used to prove the truth of the matter asserted, but expressed its concern that “considerations of due process *** might prevent convictions where a reliable evidentiary basis is totally lacking.” (399 U.S. at 163 n.15, 26 L. Ed. 2d at 500 n.15, 90 S. Ct. at 1938 n.15.) Clearly, then, Green does not foreclose the use of a prior inconsistent statement to support a conviction; moreover, as we discuss below, a “reliable evidentiary basis” for Ticey’s conviction exists in this case.

When deciding whether trial evidence sufficiently supports a criminal conviction:

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Related

David Ticey v. Howard Peters and Rodney Ahitow
8 F.3d 498 (Seventh Circuit, 1993)
People v. Coleman
584 N.E.2d 330 (Appellate Court of Illinois, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
574 N.E.2d 810, 214 Ill. App. 3d 1043, 158 Ill. Dec. 697, 1991 Ill. App. LEXIS 971, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-ticey-illappct-1991.