People v. Atherton

• Decision Date: 16 December 2010
• Docket Number: No. 2–08–1169.,2–08–1169.
• Citation: 346 Ill.Dec. 406,406 Ill.App.3d 598,940 N.E.2d 775
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee,v.Frank D. ATHERTON, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

406 Ill.App.3d 598

940 N.E.2d 775

346 Ill.Dec. 406

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Frank D. ATHERTON, Defendant–Appellant.

No. 2–08–1169.

Appellate Court of Illinois, Second District.

Dec. 16, 2010.

Thomas A. Lilien, Gary R. Peterson, Deputy Defenders, Colleen Morgan, Office of the State Appellate Defender, for appellant.James P. Hursh, Michelle J. Courier, Boone County State's Attorneys, Lawrence M. Bauer, Deputy Director, Robert J. Biderman, Anastacia R. Brooks, State's Attorneys Appellate Prosecutor, for appellee.Justice SCHOSTOK delivered the opinion of the court:

[406 Ill.App.3d 601 , 346 Ill.Dec. 411] Following a jury trial, the defendant, Frank Atherton, was convicted of two counts of predatory criminal sexual assault of a child (720 ILCS 5/3–6(j), 12–14.1(a)(1) (West 2002)) and was sentenced to a total of 24 years' imprisonment. On appeal, the defendant argues that: (1) he was not convicted beyond a reasonable doubt of one of the counts of predatory criminal sexual assault; (2) the trial court failed to comply with Illinois Supreme Court Rule 431(b) (eff. May 1, 2007) in questioning the prospective jurors during voir dire; (3) section 115–10 of the Code of Criminal Procedure of 1963 (the Code) (725 ILCS 5/115–10 (West 2002)) is unconstitutional; (4) the trial court erred in admitting evidence pertaining to the child-sexual-abuse-accommodation syndrome; (5) he was deprived of the effective assistance of counsel; (6) the trial court erred in refusing to instruct the jury with Illinois Pattern Jury Instructions, Criminal, No. 3.15 (4th ed.2000) (hereinafter IPI Criminal 4th); (7) he was deprived of a fair trial due to the cumulative effect of the errors; and (8) the trial court erred in ordering him to pay a Crime Stoppers fine. We affirm in part and vacate in part.

I. Background

On October 14, 2005, the defendant was charged by indictment with one count of predatory criminal sexual assault of a child. The indictment alleged that the defendant, who was older than 17, placed his penis in the vagina of a girl, Ariana O., who was younger than 13. The State subsequently filed a second superseding bill of indictment. The indictment added a second count, alleging that the defendant's sex organ had made contact with Ariana's anus. The indictment alleged that all of the defendant's conduct at issue had occurred between September 8, 2002, and November 30, 2002.

On January 9, 2006, the State filed a motion to admit hearsay testimony pursuant to section 115–10 of the Code. The State sought to admit statements that Ariana had made to her stepmother, Jennifer O. On May 8, 2006, the trial court conducted a hearing on the State's motion. Jennifer O. testified that she is married to Eric O. He has three children: Nick (age nine); Ariana (age eight); and Rebecca (age five). Eric shares custody with the children's mother, Julianna. On July 28, 2005, Jennifer was talking to the children and they were telling her how mean “Frank” was. Nick told her that “Frank” put his “wiener” in Ariana. After Nick said this, Ariana started crying. Jennifer asked Ariana if Nick's statement was true, and Ariana said “yes.” Jennifer asked Ariana where “Frank” had touched her, and Ariana pointed between her legs. Jennifer asked whether Ariana had been wearing underwear, and Ariana said “no.”

[940 N.E.2d 781 , 346 Ill.Dec. 412]

Jennifer testified that a month earlier, Ariana and Nick had asked questions about sex, so she gave them a book entitled, “It's So Amazing.” The book upset Ariana and she could not sleep. Ariana said an illustration in the book depicting a man and woman in bed was “icky.” According to Jennifer, Ariana told her, “There's something I need to tell you. I can't tell you.” Jennifer asked Ariana if someone hurt her, but Ariana did not respond.

At the close of the hearing, the trial court ruled that the statements were admissible, as there were sufficient indicia of reliability. The trial court explained that the statements seemed to be “fairly spontaneous” and not “coached in any way.”

On August 20, 2008, the defendant requested that the trial court conduct a Frye hearing as to whether the State could introduce testimony regarding the child-sexual-abuse-accommodation syndrome. The trial court denied the request.

Between October 20 and October 27, 2008, the trial court conducted a jury trial on the charges against the defendant. Ariana testified that she was 11 years old and lived with her older brother Nick, her younger sister Rebecca, and her mother, Julianna. She visited regularly with her father Eric, and his wife, Jennifer. When she was six or seven, “Frank” babysat her and her brother and sister in their apartment. She had known “Frank” for about a year, and she believed he probably babysat her in the summer because there was no school. She also remembered “Frank” as being over at her home for Christmas and later in the winter around Valentine's Day, but not around Easter. “Frank” came over every time her mother went to work at a pancake restaurant, more than 20 times. Occasionally, “Frank” brought his own children over when he babysat. Once, “Frank's” mother came over.

Ariana described “Frank” as always having his shirt off, wearing earrings, and having tattoos on his arms and on his stomach. She was not able to identify in court the defendant as “Frank.”

Ariana testified that she did not like “Frank,” because he was mean. “Frank” brought his kids with him when he babysat, and they messed up her room but he made her clean it up. She told her father and Jennifer that “Frank” hit Nick.

Ariana further testified that “Frank” took her into the computer room and touched her “private” with his “private.” A “private” is what a boy or girl uses to urinate. She knew boys and girls had different “privates” because she bathed with her brother. In the computer room with “Frank,” she pulled her pants and underwear partly off, but kept her shirt on. She lay on the blue carpeted floor on her stomach. “Frank” pulled his own pants down and did “pushups” over her. “Frank's” “private” touched her “private” on the inside and it hurt. There was no blood. When Ariana complained, Frank gave her chocolate. She identified a large chocolate bar as the type “Frank” gave her.

When initially asked if “Frank” touched her anywhere else besides her “private,” Ariana replied, “No.” However, when later asked if Frank's “private” touched her anywhere else while she was on her stomach, Ariana said, “It was kind of in my butt.” She stated it was “inside.” When asked how that felt, Ariana responded, “I didn't really feel anything.” Ariana stated she poops with her butt and “[h]e didn't put it inside there. It went in there as it was like going into my private. He didn't put it in where I poop.” She further stated, “He didn't put it exactly in where I poop” and she did not feel anything when he did that. She was questioned, “You

[346 Ill.Dec. 413 , 940 N.E.2d 782]

said [Frank's private] didn't go inside that part, but did it touch that part at all?” Ariana answered, “Yeah.”

On cross-examination, Ariana testified that she could not specifically recall when Frank's touching of her occurred, but she thought it probably happened when she was seven and in the summer. She could not remember what happened afterward or exactly when it would start. Ariana thought it might have lasted for 10 minutes, but she was not certain. She testified that it happened every time Frank came over, and always in the same place and in the same manner. She stated that it happened around Christmas, and in late winter around Valentine's Day, as well as in summer. She did not know where her brother and sister were when it took place. She testified that “it was a really long time ago and [she] barely remember[ed] anything.”

Ariana additionally testified that she did not tell her mother about what happened. She told her mother only that she did not like “Frank.” “Frank” did not tell her not to tell anyone. Ariana told Nick about what had occurred, probably when she was seven. Nick told Jennifer and she got him a book about the birds and bees from the library so he could understand what happened. Ariana read the book and a picture of a guy and a girl in bed scared her. She was worried she was going to have a baby until she realized that it had been past five months. Jennifer told her that she had to talk about what had happened.

Ariana stated that she remembered talking with a woman who sat on the floor in a room with cameras. She did not know that the woman's name was Jackie Weber. She told Weber that “Frank” never wore a shirt, even in the winter. She did not tell Weber that “Frank” had earrings. She told Weber that “Frank” hit Nick and that he did not care about his kids. She initially stated that she never saw “Frank” hit Nick or her younger sister. However, she later testified that “Frank” hit Rebecca and that Rebecca had bruises at least twice. Ariana testified that she had not seen “Frank” since 2002.

Ariana also testified that her aunt moved in and took over babysitting duties from “Frank.” Her aunt's boyfriend, Jason, also moved in. After Jason moved out, Carl moved in. Carl would babysit her occasionally. She also spent some time with the man who lived below her apartment, Lorenzo. She testified that Jason, Carl, and Lorenzo did not touch her the way that Frank had.

Nurse practitioner Patricia Brandon testified that she examined Ariana on August 7, 2005. Ariana had a healed injury to her hymen consistent with penetration by a penis. Ariana had no injury to her anus.

Julianna Lubus testified that she was Ariana's mother. She broke up with Ariana's father, Eric O., in late 2001 or early 2002. She was involved in custody, visitation, and child support disputes with Eric from 2002 until 2005. After she broke up with Eric, she began dating Jerome Matuszak until around Ariana's fifth birthday in September 2002. Matuszak never lived...