People v. Bishop

Decision Date20 January 2006
Docket NumberNo. 99403.,99403.
Citation843 N.E.2d 365,218 Ill.2d 232
PartiesThe PEOPLE of the State of Illinois, Appellant, v. Robbie BISHOP, Appellee.
CourtIllinois Supreme Court

Lisa Madigan, Attorney General, Springfield, and Michael J. Waller, State's Attorney, Waukegan (Gary Feinerman, Solicitor General, Linda D. Woloshin, Colleen M. Griffin, Assistant Attorneys General, Chicago, Norbert J. Goetten, Martin P. Moltz and Kristine A. Karlin, Office of the State's Attorneys Appellate Prosecutor, Elgin, of counsel), for the People.

G. Joseph Weller, Deputy Defender, and Thomas A. Lilien, Assistant Defender, Office of the State Appellate Prosecutor, Elgin, of counsel), for appellee.

OPINION

Justice GARMAN delivered the judgment of the court, with opinion:

Following a jury trial in the circuit court of Lake County, defendant Robbie Bishop was convicted of four counts of criminal sexual assault (720 ILCS 5/12-13(a)(1), (a)(3) (West 1998)) and four counts of aggravated criminal sexual assault (720 ILCS 5/12-14(a)(2) (West 1998)). The circuit court sentenced him to concurrent terms of 30 years' imprisonment for the aggravated criminal sexual assault convictions and concurrent terms of 15 years' imprisonment for the criminal sexual assault convictions. On appeal, the appellate court concluded that convictions were proper on only two of the counts of aggravated criminal sexual assault. Thus, the court vacated the convictions for criminal sexual assault, and remanded to the circuit court to enter convictions on two of the four remaining counts. The appellate court vacated defendant's concurrent sentences as void and remanded for a new sentencing hearing and imposition of consecutive terms of imprisonment. 352 Ill.App.3d 195, 287 Ill.Dec. 461, 815 N.E.2d 1264. We allowed the State's petition for leave to appeal. 177 Ill.2d R. 315.

BACKGROUND

Defendant was charged by indictment with sexually assaulting his minor daughter, Q.B., between September 1998 and December 2000.

Count I of the indictment alleged that between September 5, 1998, and December 5, 2000, defendant placed his penis in Q.B.'s vagina by the threat of force and caused her bodily harm by causing her to become pregnant (aggravated criminal sexual assault).

Count II alleged that between September 5, 1998, and December 5, 2000, defendant, being a family member of Q.B., placed his penis in Q.B.'s vagina and caused bodily harm by causing her to become pregnant (aggravated criminal sexual assault).

Count III alleged that between September 5, 1998, and December 5, 2000, defendant committed an act of sexual penetration by placing his penis in Q.B.'s vagina by the threat of force (criminal sexual assault).

Count IV alleged that between September 5, 1998, and December 5, 2000, defendant, being a family member of Q.B., who was under the age of 18 years, committed an act of sexual penetration by placing his penis in Q.B.'s vagina (criminal sexual assault).

Count V alleged that between September 1, 2000, and December 5, 2000, defendant placed his penis in Q.B.'s anus by the threat of force, thereby injuring her anus and causing her bodily harm (aggravated criminal sexual assault).

Count VI alleged that between September 5, 1998, and December 5, 2000, defendant, being a family member of Q.B., placed his penis in Q.B.'s anus, thereby injuring her anus and causing her bodily harm (aggravated criminal sexual assault).

Count VII alleged that between September 1, 2000, and December 5, 2000, defendant committed an act of sexual penetration by placing his penis in Q.B.'s anus by the threat of force (criminal sexual assault).

Count VIII alleged that between September 1, 2000, and December 5, 2000, defendant, being a family member of Q.B., committed an act of sexual penetration with Q.B., who was under the age of 18 years, by placing his penis in Q.B.'s anus (criminal sexual assault).

Defendant's conduct came to light when Q.B., then 15 years old, told police on December 5, 2000, that defendant had sexually assaulted her the previous night. She advised officers of the location in defendant's bedroom where they would find a soiled condom, a jar of Vaseline, and birth control pills that Q.B. claimed defendant forced her to take. The officers went to defendant's house with Q.B. and found the items in the described locations in defendant's bedroom. Subsequently, defendant was arrested and charged.

At defendant's trial, Terri DeWees, an emergency room nurse with training in sexual assault examinations, testified that she performed a physical examination of Q.B. for a sexual assault evaluation. Q.B. told DeWees that defendant had anally penetrated her and that the sexual assaults had been occurring "most every night" since Q.B. was nine years old. DeWees found nothing unusual in a vaginal examination of Q.B. However, a rectal examination revealed a two-millimeter abrasion near the bottom of Q.B.'s anus at the six o'clock position and some apparent scar tissue at the three o'clock position. DeWees explained that when the body suffers an injury, scar tissue develops during the healing process.

Q.B., who was born on September 5, 1985, testified that defendant gained custody of her and her sister in 1997 and that when she was approximately 12 years old, defendant began to touch her in a sexual manner with his hands and his penis. He would rub his penis on her between her legs. The incidents took place in defendant's bedroom; defendant would call Q.B. into his bedroom and say that he wanted to "do something," or he would tell her to remove her clothes. Because defendant threatened to hurt her if she did not comply with his demands, she went along with it. These incidents would take place two or three times a week. Although she never had a boyfriend and did not go out with friends, Q.B. discovered in July 2000 that she was pregnant. She was 14 years old at the time. Defendant was the only person she was having sexual contact with, although defendant had never put his penis inside her vagina. Defendant took her to an abortion clinic where she registered under a fictitious name. Subsequently, an abortion was performed.

Q.B. testified that she and defendant were having sexual contact about three times a week before Q.B. discovered she was pregnant. After that, defendant promised that he would never have sexual contact with her again. However, a couple of weeks after the abortion, defendant began to penetrate her anally, which would cause her to cry. Periodically, defendant would apologize and promise to stop abusing Q.B., but he never kept his promises. On December 4, 2000, Q.B. got into trouble with defendant and he paddled her more than 20 times with a wooden paddle. That night, defendant anally penetrated Q.B. The next day, tired of defendant's sexual abuse and his broken promises, Q.B. wrote a note to her gym teacher about the sexual abuse.

Q.B. acknowledged that she had not told anyone of the sexual abuse prior to telling the police on December 5, 2000. She admitted she had opportunities to tell her aunt and grandmother, who had asked if defendant was sexually abusing her. She spoke with personnel from the Illinois Department of Children and Family Services (DCFS) when defendant gained custody of her and her sister, but she did not tell them that she was being sexually abused. When the prosecutor asked why she had not done so, Q.B. testified that the reason she did not reveal the abuse earlier was that she liked living with defendant and did not want him "to go back to jail." On cross-examination, Q.B. stated that she did not recall telling Sergeant Mullen, a police officer, that the sexual abuse had taken place about 20 times since she was 12 years old. Later, the officer confirmed in his testimony that Q.B. had initially made that statement to him.

At the close of the State's evidence, defense counsel moved to dismiss counts I through IV and count VI on the basis that the evidence failed to show that defendant's penis penetrated Q.B.'s vagina and that counts II and VI failed to allege that Q.B. was under the age of 18 years when the acts were committed. The trial court denied the motion as well as defense counsel's motion for acquittal.

During defendant's testimony, he denied sexually touching Q.B. or assaulting her vaginally or anally. The night before Q.B. went to the police, defendant had spanked her for breaking a house rule. He told her he was going to paddle her all week. Defendant explained that the night before Q.B. went to the police, he had used the soiled condom found in his room while watching an adult video alone. He used the Vaseline to shine his head after he shaved it; he also used it when he had sexual intercourse with his adult female friends. Defendant testified that Q.B. obtained the birth control pills from the abortion clinic.

During closing argument, the prosecutor urged the jury to find defendant guilty on all counts of the indictment. The jury was instructed on all counts of the indictment and was given eight general verdict forms. It returned guilty verdicts on all eight counts.

At the sentencing hearing, defense counsel argued that several of the offenses as set forth in the indictment were duplicative. Counsel argued that the counts charging criminal sexual assault should merge into the counts charging aggravated criminal sexual assault and that defendant should be sentenced on only two of the aggravated criminal sexual assault convictions, one for penis to vagina penetration and one for penis to anus penetration. The prosecutor noted that some of the eight counts of the indictment were charged in different ways that defendant had sexually abused Q.B. She argued that defendant should be sentenced on "at least two, if not three," of the counts of the indictment and that his sentences should run consecutively. At another point, she urged the trial court to impose consecutive sentences on "at least three" of defendant's...

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