People v. Bell

• Decision Date: 23 September 1992
• Docket Number: No. 3-91-0831,3-91-0831
• Citation: 600 N.E.2d 902,234 Ill.App.3d 631,175 Ill.Dec. 659
• Parties: , 175 Ill.Dec. 659 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Nelson BELL, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 902

600 N.E.2d 902

234 Ill.App.3d 631, 175 Ill.Dec. 659

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Nelson BELL, Defendant-Appellant.

No. 3-91-0831.

Appellate Court of Illinois Third District.

Sept. 23, 1992.

Harold M. Jennings, Ronald L. Lewis (argued), Jennings, Novick, Taseff, Smalley & Davis, P.C., Bloomington, Thomas J. Penn, Trial Counsel, Peoria, for Nelson Bell.

John X. Breslin, Deputy Director, State's Attorneys Appellate Prosecutor, Ottawa, Kevin W. Lyons, State's Atty., Peoria, Robert M. Hansen (argued), State's Attys. Appellate Prosecutor, Ottawa, for the People.

Justice SLATER delivered the opinion of the court:

Defendant Nelson Bell was indicted on two counts of aggravated criminal sexual assault (Ill.Rev.Stat.1991, ch. 38, par. 12-14(b)(1)) and two counts of aggravated criminal sexual abuse (Ill.Rev.Stat.1991, ch. 38, par. 12-16(c)(1)(i)). Following a trial by jury, defendant was convicted of two counts of aggravated criminal sexual assault and sentenced to two consecutive six year terms of imprisonment. Defendant raises the following issues on appeal: (1) whether he was proved guilty beyond a reasonable doubt; (2) whether he was denied a fair trial due to prosecutorial misconduct during closing argument; (3) whether defendant's counsel was ineffective; and (4) whether defendant was improperly sentenced to mandatory consecutive sentences. For the reasons stated below, we affirm defendant's conviction and sentence on one count of aggravated criminal sexual assault, reduce the defendant's second conviction to aggravated criminal sexual abuse, and remand for resentencing.

The victims in this case are the defendant's nieces, D.W. and E.W., who were 9 and 12 years old respectively at the time the offenses were committed. The children, who lived with their mother in Bloomington, came to visit defendant and his wife at their home in Peoria in March of 1991. D.W. testified that she was watching television when the defendant asked her to go into the bathroom with him. Defendant's wife, whom the children called Aunt Shirley, was at work at the time. D.W. pulled down her pants and bent over at defendant's request and, defendant looked at D.W.'s vagina "to see if anybody was bothering [her]." Defendant then touched D.W.'s vagina with his finger. Defendant then told D.W. to pull up her pants, and she went back to watching television.

D.W. further testified that she told Aunt Shirley about the incident a few days later, but she did not believe her. D.W. also called her mother and told her what had happened. A police officer eventually took the girls from the defendant's home and interviewed them at the police station. They were also questioned by an investigator for the Department of Children and Family Services (DCFS).

On cross-examination, D.W. stated that defendant "handled [her] vagina." Defense counsel later asked D.W. if defendant "just put his hands on your, as you describe, vagina or what?" D.W. responded: "No. He put his finger--he was rubbing my vagina."

E.W., the older sister of D.W., also testified about an incident involving the defendant while the children were visiting in March of 1991.

"Q. [Assistant State's Attorney]: Was there sometime during the week that you were at Uncle Nelson and Aunt Shirley's that Uncle Nelson asked to check you?

A. [E.W.]: Yes.

Q. Could you tell us about that, please[?]

A. When I was in the living room sitting on the chair he asked me to come downstairs in the basement. And he told me to pull my pants down, so I did. Then he told me to bend down and then he rubbed my private.

Q. Rubbed your privates?

A. Yeah.

Q. What--what part of your body are your privates at?

A. Where I pee at.

Q. Okay. And what did he rub your privates with?

A. His finger.

Q. And did he say anything when he did that to you?

A. He asked me, Has anybody been touching me.

Q. He said this when he--did he just--did he rub you or put his finger in you? What exactly did he do?

A. Rubbed it.

Q. Okay. With what?

A. His first finger.

Q. Okay. Was there anybody else in the basement when this happened?

A. No."

Like D.W., E.W. testified that she told Aunt Shirley what had happened and she also told her mother during a telephone call. E.W. further stated that the police took her from defendant's home and questioned her at the police station. On cross-examination, defense counsel asked E.W. if defendant put his hands on her private parts. E.W. answered "Yeah, he rubbed it."

Officer Tommie J. Moton of the Peoria police department testified that she went to the defendant's residence on March 28, 1991, and removed D.W. and E.W. from the home. Moton interviewed each of the girls separately at the police station. With respect to D.W., Moton testified:

"A. [Officer Moton]: She told me she went into the bathroom and she pulled her pants down, because according to her, she knew this was expected of her. And her uncle stood in front of her, pulled--pulled her--used his fingers and pulled her vagina part. She said, "private apart." She said she was told to stand up, turn around and bend over, and he pulled her privates apart. And she did like this, meaning on her privates. (Indicating.)

MS. MERMELSTEIN [Assistant State's Attorney]: Would the record reflect that the witness ran her first finger of her right hand up, in an up-and-down direction?

THE COURT: It may."

Moton later testified regarding E.W.:

"A. [Officer Moton]: [E.W.] told me she was told by her uncle to go to the basement play room so he could check her to see if someone had messed with her.

Q. And did she tell you she went to that room?

A. She said she went to the--went to the play room and her uncle told her to pull her pants down, and he looked at her and felt her privates.

Q. Did you have her describe where her privates were?

A. She pointed to the area between her legs."

The final witness to testify for the State was Cindy Flannery, a child protective investigator for DCFS. Flannery stated that she interviewed D.W. on March 29, 1991. When asked what D.W. told her during the interview, Flannery testified:

"A. She told me that she and her sister had been staying there during their Easter vacation from school and that one day earlier that week her Uncle Nelson had told her that he wanted to check to see if anybody had been messing with her and told her to go into the bathroom. And she went into the bathroom and he told her to take her pants down which she did. And she turned around. He told her to turn around and she bent over. And she told me that he looked at her privates. I then asked her what her privates were. And she explained to me, that's where she goes pee. And she told me that her Uncle Nelson then looked at her and pulled her apart and ran his finger up inside in her privates."

Flannery did not testify regarding any statements made by E.W.

Defendant testified that he and his wife had been married for 20 years and they were the parents of three adopted children. Defendant admitted asking the children if anyone had been "messing with them" but he denied fondling the girls. Defendant became aware of the girls' allegations when his wife told him what the girls had said to her.

Shirley Bell, the defendant's wife, testified that she picked up D.W. and E.W. and brought them to Peoria on Monday, March 25. Later that day, Mrs. Bell went to work, leaving the house at 4:45 p.m. and returning at approximately 7:45 p.m. Upon her return, she saw D.W. and E.W. and they made no complaints to her. The following day, however, D.W. told Mrs. Bell that defendant had been "messing with" them. Mrs. Bell stated that she did not believe the children because they told her that defendant had messed with them "that day", and she had been with them all day. Mrs. Bell told the defendant about the children's allegations later that day.

The defendant first contends that the State failed to prove beyond a reasonable doubt that he committed aggravated criminal sexual assault. Specifically, defendant maintains that there was insufficient proof of sexual penetration of either D.W. or E.W.

The defendant was convicted of violating section 12-14(b)(1) of the Criminal Code of 1961 (Ill.Rev.Stat.1991, ch. 38, par. 12-14(b)(1)) in that he was 17 years of age or older and committed an act of sexual penetration with victims who were under 13 years of age when the act was committed. In the context of this case, "sexual penetration" is defined as "any intrusion, however slight, of any part of the body of one person * * * into the sex organ * * * of another person" (Ill.Rev.Stat.1991, ch. 38, par. 12-12(f)). When a defendant challenges the sufficiency of the evidence, the standard of review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential element of the crime proved beyond a reasonable doubt. (People v. Schott (1991), 145 Ill.2d 188, 164 Ill.Dec. 127, 582 N.E.2d 690; People v. Collins (1985), 106 Ill.2d 237, 87 Ill.Dec. 910, 478 N.E.2d 267.) Whether penetration occurred is a question of fact, which is to be evaluated by the jury as the trier of fact, and a lack of detail in a witnesses' testimony only affects the weight of the evidence. People v. Shum (1987), 117 Ill.2d 317, 111 Ill.Dec. 546, 512 N.E.2d 1183.

We find that there was ample evidence presented to establish proof of sexual penetration of D.W. D.W. testified that defendant "handled" and "rubbed" her vagina. Officer Moton testified that D.W. told her that defendant used his fingers and "pulled her privates apart." Cindy Flannery testified that D.W. told her that defendant "pulled her apart and ran his finger up inside in her privates." Defendant, citing People v. Kelly (1989), 185 Ill.App.3d 43, 133 Ill.Dec. 259, 540 N.E.2d 1125, argues that D.W.'s testimony did not establish penetration, and that the testimony of Moton or Flannery cannot be used to show...