People v. Balle

• Decision Date: 28 January 1992
• Docket Number: No. 1-88-1029,1-88-1029
• Citation: 601 N.E.2d 788,176 Ill.Dec. 90,234 Ill.App.3d 804
• Parties: , 176 Ill.Dec. 90 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Adrian BALLE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 788

601 N.E.2d 788

234 Ill.App.3d 804, 176 Ill.Dec. 90

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Adrian BALLE, Defendant-Appellant.

No. 1-88-1029.

Appellate Court of Illinois First District, Second Division.

Jan. 28, 1992.

Randolph N. Stone, Public Defender of Cook County, Chicago (Donald S. Honchell, Asst., Public Defender, of counsel) for defendant-appellant.

Jack O'Malley, State's Atty. of Cook County, Chicago (Renee Goldfarb, David Stabrawa, Alexandra C. Buzanis, Asst. State's Attys., of counsel), for plaintiff-appellee.

Justice SCARIANO delivered the opinion of the court:

Defendant Adrian Balle ("Balle") appeals from the judgment of the circuit court, sitting without a jury, finding him guilty of the aggravated criminal sexual abuse (Ill.Rev.Stat.1985, ch. 38, par. 12-16) of S.J., of a seven-year-old child, for which he was sentenced to four years in the custody of the Department of Corrections. At trial, S.J., who had been found competent to testify, gave the following testimony.

On August 15, 1986, she went to Mrs. Bessie's Candy Store with her two friends, Lamar and Laronda. S.J. had previously seen Balle in the store; he was the grandson of the owner, Mrs. Barnes. On this particular afternoon, Balle was in the store alone, and after he had given her a free candy bar, he took her by the wrist and forced her into a nearby gangway. While in the gangway, Balle allegedly touched S.J. "in between" her legs with his hand, which he put inside her shorts, and touched her vagina with his finger. While Balle touched S.J., he looked at Lamar and Laronda and told them "to juice, too." S.J. and her friends knew that this was a "bad word," connoting that they should "do it to each other," but they did not comply.

Seven-year-old Lamar, also found competent to testify, related that S.J. had received a free candy bar from Balle and that he had seen him grab S.J. and force her into the gangway alongside the store. Lamar watched from the sidewalk, approximately two and one-half feet away, while Laronda watched from the gangway. Balle was crouched down in front of S.J., four inches away, face-to-face, while she stood with her back pressed up against a building wall. Lamar further testified that he then saw Balle "sticking his hand in her," through the right side of her shorts, in the area of her groin. Meanwhile, Mr. Barnes, Balle's grandfather, approached the scene from the street, and while Balle's hand was still inside S.J.'s shorts, Barnes stopped by Lamar and also watched. Barnes then yelled "[g]et out of that gangway," and Balle removed his hand from inside S.J.'s shorts and ran towards an alley.

It was not until August 24, 1986, that S.J. first told anyone of the incident. She had been staying with her maternal grandparents when her mother (Mrs. J.) was notified that something had happened between Balle and S.J. Mrs. J. went directly to her parents' house where she confronted S.J., demanding to know what Balle had done to her. S.J. told her mother that Balle had put his hands in her shorts, "and she [S.J.] said, Adrian put his hand in my cat." S.J. pointed to her vagina. Mrs. J. then had S.J. take off her clothes so "I could see what I could see." Mrs. J. saw nothing, but called the police, who took her to Mt. Sinai Hospital where she remained for five days. At trial, Mrs. J.'s conversation with S.J. was admitted over Balle's objection. Mrs. J. also testified that about a week before that conversation, around August 18, 1986, she saw S.J. asleep with her hand on her vaginal area. At that time S.J. told her about some personal hygiene problems she was experiencing. Mrs. J. examined the vaginal area and saw that it was red and chafed.

At the hospital S.J. was examined by a special team of doctors, psychiatrists, and child life specialists to determine whether or not she had been a victim of child abuse. Dr. Sharon Ahart, an expert in pediatrics, testified that on August 25, 1986, she examined, evaluated, observed and interviewed S.J. in Mt. Sinai Hospital's Pediatric Ecology Unit, which specializes in maltreated children. Dr. Ahart testified that when S.J. was asked why she was in the hospital she replied that she was "sick because someone had stuck a finger in her, in her cat." S.J. also told the doctor that this incident occurred in a gangway and that Balle had touched her under her clothes. S.J.'s colloquy with Dr. Ahart was also admitted over Balle's objection.

Dr. Ahart conducted a complete physical examination of S.J., which included her vaginal area, both external and internal. A tiny scar was visible inside S.J.'s genital region, on her labia majora, which could have been caused inadvertently by S.J. when she wiped herself. The internal exam also revealed a "severe amount of erythema [redness] on the inside of the labia majora and minora," a condition caused by "increased vascular irritation." S.J.'s hymen was thin and irregular, indicating that she had been traumatized in her vaginal area, even though her hymenal opening indicated a normal size. Dr. Ahart testified that in her opinion, S.J. had been digitally penetrated.

The defense presented two witnesses. One was Rita Parida, a child-life specialist, who testified that S.J. had told her that Balle had kissed her and put her on his lap, and that he had "juiced" her. S.J. also told Parida that "he wanted to feel on my coo coo. He felt on my coo coo." Parida also testified that S.J. had told her that Balle had touched her once, with a finger, over her clothes.

The other defense witness was Dr. Benjamin Emanuel, an expert in pediatrics. He testified that erythema without ecchymosis (blood under the tissue) will disappear within three to four days. He further testified that the thinness and irregularity of the hymen observed by Dr. Ahart was completely normal, and that S.J.'s hymen could not have been abused because there were no lacerations. In his opinion the physical evidence was consistent with explanations other than penetration and that the evidence did not support a finding of abuse.

At the conclusion of the trial, the court acquitted Balle of aggravated criminal sexual assault, with which he had also been charged, but found him guilty of the criminal sexual abuse charge. His motions for a new trial and in arrest of judgment were denied; and after a hearing in mitigation and aggravation, Balle was sentenced to four years in the custody of the Illinois Department of Corrections.

Balle contends that the trial court failed to find him guilty beyond a reasonable doubt. He argues that a reviewing court must find the testimony of the complaining witness to be "clear and convincing" or "substantially corroborated" before affirming a conviction of aggravated criminal sexual abuse. (People v. Taylor (1987), 153 Ill.App.3d 710, 712, 106 Ill.Dec. 614, 506 N.E.2d 321.) He further asserts that courts continue to adhere to these standards in sexual abuse cases. (See People v. McCartney (1990), 206 Ill.App.3d 50, 55, 150 Ill.Dec. 934, 563 N.E.2d 1061; People v. Diaz (1990), 201 Ill.App.3d 830, 834, 146 Ill.Dec. 1029, 558 N.E.2d 1363; People v. Foley (1990), 206 Ill.App.3d 709, 715, 151 Ill.Dec. 768, 565 N.E.2d 39; People v. Gibson (1990), 205 Ill.App.3d 361, 367, 150 Ill.Dec. 339, 562 N.E.2d 1142.) Therefore, he claims, this court is "free to likewise so conclude and determine whether the State's proof here was clear and convincing or substantially corroborated."

Balle also claims that S.J.'s testimony was not clear and convincing because she was unable to answer approximately 35% of the questions put to her by both the State and the defense, and that she had been coached in the answers she gave. He also suggests that her testimony was not substantially corroborated because the medical evidence was inconclusive, and that the statements made to her mother and Dr. Ahart were not identical.

While it is true that in sexual assault cases the standard employed by our courts has been to require that a complaining witness' testimony be "clear and convincing" or "substantially corroborated," (People v. Thompson (1978), 57 Ill.App.3d 134, 139-40, 14 Ill.Dec. 773, 372 N.E.2d 1052), this court but a few months ago held in People v. Byrd (1990), 206 Ill.App.3d 996, 1006, 151 Ill.Dec. 905, 565 N.E.2d 176, that,

"[w]e will no longer require that in a case in which a sex offense is charged, the State must demonstrate either the victim's testimony is clear and convincing or substantially corroborated to prove guilt beyond a reasonable doubt. (People v. James (1990), 200 Ill.App.3d 380, 394 [146 Ill.Dec. 769, 558 N.E.2d 732] ). * * * [T]he standard to be used in reviewing the sufficiency of evidence in all criminal cases is proof beyond a reasonable doubt, whether the evidence is direct or circumstantial. (People v. Pintos (1989), 133 Ill.2d 286, 291 [139 Ill.Dec. 832, 549 N.E.2d 344] )."

More recently, the Illinois Supreme Court, in People v. Schott (1991), 145 Ill.2d 188, 164 Ill.Dec. 127, 582 N.E.2d 690, held it "incongruous for an appellate court to view a sex-offense victim's testimony with skepticism by employing this special standard or review. * * * In place of this standard, we find that the reasonable doubt test articulated in People v. Collins (1985), 106 Ill.2d 237, 87 Ill.Dec. 910, 478 N.E.2d 267, should govern an appellant's claim of evidentiary insufficiency in sex-offense cases."

Prior appellate court decisions have also rejected the more heightened standard of review in sexual offense cases. (People v. Allen (1991), 220 Ill.App.3d 772, 162 Ill.Dec. 872, 580 N.E.2d 1291; People v. Wheeler (1991), 216 Ill.App.3d 609, 159 Ill.Dec. 266, 575 N.E.2d 1326; People v. Mack (1991), 216 Ill.App.3d 239, 160 Ill.Dec. 69, 576 N.E.2d 1023; People v. Thomas (1991), 215 Ill.App.3d 751, 159 Ill.Dec. 368, 576 N.E.2d 37; People v. Murff (1991), 214 Ill.App.3d 1034, 158 Ill.Dec. 702, 574 N.E.2d 815; People v. Hart (1991), 214...