People v. Allen

• Decision Date: 30 September 1991
• Docket Number: No. 1-88-2293,1-88-2293
• Citation: 580 N.E.2d 1291,162 Ill.Dec. 872,220 Ill.App.3d 772
• Parties: , 162 Ill.Dec. 872 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Darnell ALLEN and Melvin Allen, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 1291

580 N.E.2d 1291

220 Ill.App.3d 772, 162 Ill.Dec. 872

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Darnell ALLEN and Melvin Allen, Defendants-Appellants.

No. 1-88-2293.

Appellate Court of Illinois,

First District, Fourth Division.

Sept. 30, 1991.

Randolph N. Stone, Public Defender of Cook County (Ira Churgin, Asst. Public Defender, of counsel), Chicago, for defendants-appellants.

Jack O'Malley, State's Atty. (Renee Goldfarb, James E. Fitzgerald and Judith M. Pietrucha, of counsel), Chicago, for plaintiff-appellee.

Justice McMORROW delivered the opinion of the court:

Following a bench trial, Darnell Allen (Darnell) and his brother, Melvin Allen (Melvin) (both of whom are hereinafter collectively referred to as defendants), were convicted of multiple counts of aggravated criminal sexual assault (Ill.Rev.Stat.1987, ch. 38, par. 12-14(b)), criminal sexual assault (Ill.Rev.Stat.1987, ch. 38, par. 12-13(a)), and aggravated criminal sexual abuse (Ill.Rev.Stat.1987, ch. 38, par. 12-16(c)), and were sentenced to concurrent terms of six years' imprisonment. On appeal, defendants argue that the evidence was insufficient to prove them guilty beyond a reasonable doubt. Defendants also assert that they were denied the effective assistance of counsel, because their attorney was facing disciplinary proceedings that caused him to render per se ineffective assistance and lead him to suffer from a per se conflict of interest. Defendants also contend, and the State concedes, that certain counts of their convictions should be vacated. We affirm in part and reverse in part.

The charges against defendants stemmed from acts they allegedly committed between May 1, 1986 and August 23, 1986, while the defendants babysat the two children of a neighbor, Ms. H. The children were a boy, M.H., who was ten years old at the time of the offenses, and a girl, L.H., who was six at the time of the offenses.

The children's mother, Ms. H., testified that the defendants lived in a nearby apartment, that she had known the defendants for the last three years, and that she was friendly with the defendants' mother. Ms. H. stated that the defendants babysat her children four or five times a month between May 1, 1986 and August 23, 1986. She identified the defendants in court.

Ms. H. testified that on September 22, 1986, as she was bathing L.H., the child suddenly began to scream while she was being washed in her vaginal area, which Ms. H. discovered to be red and yellowish. The child refused to answer her mother's questions regarding the cause of this condition. Ms. H. asked her son, M.H., what had happened. The boy responded that defendants had been in the apartment and had "freaked" the children. Ms. H. testified that the term "freaked" meant that the defendants had been "having sex with" the children. Ms. H. testified that M.H. informed her that defendant Darnell had sexually assaulted him. Thereafter, L.H. told her mother that both defendants had sexually assaulted her.

On cross-examination, Ms. H. acknowledged that L.H. had been sexually assaulted by the child's uncle in 1984, and stated that the uncle had had no further contact with L.H. after the incident. Ms. H. also testified that she had caught defendant Darnell sexually assaulting L.H. in December 1985. On this occasion, Ms. H. did not report the incident to the police, but informed the defendants' mother.

Both children testified against the defendants at trial. L.H. testified that she remembered the defendants were at her home when it was warm outside and school was not in session. She could not recall the precise dates of their visits, although she stated that they occurred in the summer of 1986. L.H. testified in detail to a sexual act that was performed upon her by defendant Melvin during this period of time. In addition, she testified in detail to having seen defendant Darnell sexually assault her brother, M.H.

L.H. also testified that defendant Darnell had assaulted her, but stated that this occurred in December 1985, and that her mother had caught defendant Darnell during this incident. L.H. testified that she was not assaulted by defendant Darnell after December 1985, but was only assaulted by defendant Melvin during the summer of 1986. The girl identified both defendants at trial, and with the use of anatomical dolls, L.H. demonstrated how the defendants had assaulted her. On cross-examination, L.H. testified that she remembered having been sexually assaulted by her uncle on one occasion, and that this incident occurred after she had been assaulted by defendant Darnell.

The son of Ms. H., M.H., also testified at trial that he remembered two incidents with defendants that took place in the summer of 1986. He recounted in detail the acts performed upon him by defendant Melvin on these two occasions, and recalled in detail having seen defendant Darnell perform sexual acts upon his sister, L.H., during these incidents. The boy testified that defendants told him they would hurt him if he ever disclosed what had occurred. M.H. identified defendant Melvin in court, and identified defendant Darnell through a photograph.

Dr. Steven Sheldon, a licensed physician and surgeon specializing in pediatrics and child abuse, testified as an expert in pediatrics on behalf of the State. Dr. Sheldon stated that he examined both children on September 24, 1986. After giving the details of these examinations, the physician stated that, in his medical opinion, L.H. and M.H. had recently been sexually assaulted. Dr. Sheldon also testified that, in his opinion, each child had suffered chronic sexual abuse, i.e., repeated sexual assaults over a period of time. However, the physician stated that he could not determine for how long these assaults had continued. Dr. Sheldon also testified on cross-examination that M.H. had told the physician that M.H. had been sexually assaulted by his uncle.

It was stipulated at trial that, at the time of the offenses, defendant Darnell was 17 years of age and that defendant Melvin was 16 years old. Chicago police detective William Facchini, who spoke with the defendants after their arrest in September 1986, testified that defendant Melvin waived his Miranda warnings during police questioning. According to Detective Facchini, defendant Melvin stated that he and his brother "had been freaking the two children off and on for the past two years." Defendant Melvin also said that he had been caught about two years earlier for the same conduct, and had received a beating for it from his mother. The detective stated that he understood the word "freaking" to mean sexual contact.

The defendants presented one witness in their behalf at trial, 15-year old Janice Dorkin (Janice), who testified that she knew both the children and the defendants. According to Janice, M.H. told her, shortly before the defendants' trial began, that the defendants had not assaulted M.H. or his sister. Janice testified that M.H. informed her that M.H. had been assaulted by his uncle. In addition, Janice recalled that L.H. had told her that L.H.'s uncle had sexually assaulted L.H.

Based upon this evidence, the trial court found defendants guilty of multiple counts of aggravated criminal sexual assault, criminal sexual assault, and aggravated criminal sexual abuse. The defendants were sentenced to concurrent terms of six years' imprisonment for these offenses. Their appeal followed.

I

Defendants argue that the State's evidence was insufficient to prove them guilty beyond a reasonable doubt. Defendants maintain that their convictions should be reversed because the evidence against them was not clear and convincing or substantially corroborated. See, e.g., People v. Cole (1990), 193 Ill.App.3d 990, 997-1001, 140 Ill.Dec. 838, 550 N.E.2d 723 (Steigmann, J., specially concurring) (historical review of caselaw development of standard requiring that proof in sex offense cases be clear and convincing or substantially corroborated).

Recent Illinois decisions have rejected this heightened standard in appellate review of sexual offense cases. (People v. Wheeler (1991), 216 Ill.App.3d 609, 159 Ill.Dec. 266, 575 N.E.2d 1326; People v. McCarthy (1991), 213 Ill.App.3d 873, 879-80, 157 Ill.Dec. 755, 572 N.E.2d 1219; People v. Stengel (1991), 211 Ill.App.3d 337, 346, 155 Ill.Dec. 878, 570 N.E.2d 391; People v. Nicholl (1991), 210 Ill.App.3d 1001, 1012, 155 Ill.Dec. 423, 569 N.E.2d 604; People v. Westfield (1990), 207 Ill.App.3d 772, 777, 152 Ill.Dec. 705, 566 N.E.2d 392; People v. Roy (1990), 201 Ill.App.3d 166, 185, 146 Ill.Dec. 874, 558 N.E.2d 1208; People v. James (1990), 200 Ill.App.3d 380, 384, 146 Ill.Dec. 769, 558 N.E.2d 732.) Instead, Illinois jurisprudence now favors the test applicable in other criminal cases, viz., whether the evidence, viewed in the light most favorable to the State, would support a rational trier of fact's determination that the essential elements of the crime have been proved beyond a reasonable doubt. (See, e.g., People v. Pintos (1989), 133 Ill.2d 286, 139 Ill.Dec. 832, 549 N.E.2d 344.) This court has also adopted the newer, uniform standard of appellate review in sex offense cases. People v. Casiano (1991), 212 Ill.App.3d 680, 689, 156 Ill.Dec. 762, 571 N.E.2d 742; People v. Byrd (1990), 206 Ill.App.3d 996, 1006, 151 Ill.Dec. 905, 565 N.E.2d 176.

In light of this precedent, we need not and do not consider whether the testimony of the children in the instant cause was clear and convincing or substantially corroborated. Rather, our inquiry is limited to whether the evidence, when considered in the light most favorable to the State, supports the trial court's determination that defendants were guilty of the sexual assaults of L.H. and M.H. In this regard, we must decide whether the State's evidence is so unsatisfactory or improbable that there remains a reasonable doubt of the defendants' guilt. People v. Pintos (1989), 133 Ill.2d 286, 139...