People v. Boling

• Decision Date: 12 March 2014
• Docket Number: No. 4–12–0634.,4–12–0634.
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Brandon M. BOLING, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2014 IL App (4th) 120634

8 N.E.3d 65

380 Ill.Dec. 134

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

v.Brandon M. BOLING, Defendant–Appellant.

No. 4–12–0634.

Appellate Court of Illinois,

Fourth District.

March 12, 2014.

Michael J. Pelletier, Karen Munoz, and Allen H. Andrews (argued), State Appellate Defender's Office, Springfield, for appellant.

Brian Bower, State's Attorney, Charleston (Patrick Delfino, David J. Robinson, and Kathy Shepard (argued), State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

Justice STEIGMANN delivered the judgment of the court, with opinion.

¶ 1 In February 2012, a jury convicted defendant, Brandon M. Boling, of two counts of predatory criminal sexual assault of a child (720 ILCS 5/12–14.1(a)(1) (West 2010)). In April 2012, the trial court sentenced defendant to two consecutive terms of 31 years in prison.

¶ 2 Defendant appeals, arguing that (1) hearsay statements of the victim, K.A., were improperly admitted under section 115–10 of the Code of Criminal Procedure of 1963 (the Code) (725 ILCS 5/115–10 (West 2012)) because those statements described (a) events that were not elements of the charged offenses and (b) criminal offenses against someone else; (2) the State improperly elicited hearsay statements that revealed previous allegations of sexual abuse against defendant; (3) sexual assault nurse examiner Noelle Cope was not qualified to offer her opinion that the victim's complaints were credible; and (4) the prosecutor improperly commented upon the victim's credibility in closing argument. We reverse defendant's convictions and remand for a new trial.

¶ 3 I. BACKGROUND

¶ 4 A. The State's Charges

¶ 5 In July 2011, the State charged defendant with three counts of predatory criminal sexual assault of a child (720 ILCS 5/12–14.1(a)(1) (West 2010)) and one count of aggravated criminal sexual abuse (720 ILCS 5/12–16(d) (West 2010)). (The State dismissed the count of aggravated criminal sexual abuse prior to trial.)

¶ 6 The State's charges of predatory criminal sexual assault of a child alleged that between August 2010 and May 2011, defendant (born November 25, 1974) committed various acts of sexual penetration upon his girlfriend's daughter, K.A. (born October 8, 2002), including placing (1) his penis in her sex organ, (2) his penis in her anus, and (3) his mouth on her sex organ.

¶ 7 B. The State's Motion in Limine Pursuant to Section 115–10

¶ 8 In January 2012, the State filed a “motion in limine to admit statements” pursuant to section 115–10 of the Code. Specifically, the State sought to admit statements K.A. made in July 2011 to (1) her mother, Jamie Burwell; (2) Burwell's sister, Ryan Reardon; and (3) Lieutenant Detective Jonathan Seiler. Over the course of two days in January and February 2012, the trial court held a hearing pursuant to section 115–10(b)(1) of the Code (725 ILCS 5/115–10(b)(1) (West 2012)) to determine the admissibility of K.A.'s hearsay statements.

¶ 9 1. K.A.'s Statements to Burwell

¶ 10 Burwell testified that prior to July 9, 2011, she was in a dating relationship with defendant. Defendant did not live with Burwell permanently, but he would regularly travel from his Missouri residence to Mattoon, Illinois, where he would spend weekends with Burwell and K.A. at Burwell's apartment.

¶ 11 On July 9, 2011, based on “some information” that Burwell received from Reardon, she had a conversation with K.A. about “good touches versus bad touches.” Present for this conversation were Burwell, K.A., Reardon, and Reardon's daughter, A.W. (born July 2002). Burwell told K.A. to tell her if anybody ever touched her in her “bad spot” (her vagina). When asked by the State if K.A. made any statements during this conversation, Burwell testified as follows:

“[K.A.] told me that [defendant] was kissing her neck one day and that he left a red mark. She asked me what it was. I told her I didn't know, and she said that he made her put a cold spoon on it so the mark would be gone before I came home from work.”

When asked if she recalled any other statements K.A. made, Burwell said, “No. My mind went crazy at that time.”

¶ 12 Burwell testified further that on July 17, 2011, she and K.A. were alone in her bedroom. K.A. asked Burwell what the “bottle of stuff” was in her dresser drawer. Burwell looked in her drawer and identified a bottle of personal lubricant. K.A. told her that defendant “put it on her and put it on himself.”

¶ 13 2. K.A.'s Statements to Reardon

¶ 14 Reardon testified that on the evening of July 8, 2011, she was playing dominoes at her apartment with Burwell, defendant, and defendant's cousin, Fernandez, who was in town to help defendant work on a car. (Fernandez's last name does not appear in the record.) When Burwell and defendant left to get a deck of playing cards, Fernandez asked Reardon if he could spend the night because he needed to talk to her about “some things.” Reardon agreed and had a conversation with Fernandez during the early morning hours of July 9. Reardon did not testify at the hearing as to the nature or details of that conversation.

¶ 15 At approximately 7 or 8 a.m. on July 9, 2011, after staying up all night, Reardon and Fernandez went to Burwell's apartment. After defendant and Fernandez left the apartment, Reardon told Burwell what she heard from Fernandez. Reardon and Burwell spoke alone in Burwell's bedroom for approximately 30 to 45 minutes, during which time “there was a lot of crying and stuff because there was so much that [Reardon] had heard.” Reardon talked with Burwell about having a conversation with K.A. and A.W. about good touches and bad touches. When K.A. and A.W. knocked on the bedroom door, Reardon let them into the room so she could talk with them.

¶ 16 Reardon explained to K.A. and A.W. that good touches are things like hugs and kisses from mom or grandma, and bad touches are touches to the private areas that should only be done by a doctor. Burwell was in the room at the beginning of this conversation, but she left at some point. The entire conversation lasted approximately 5 to 10 minutes. Reardon told K.A. not to be scared to tell her if someone gave her a bad touch because she would make sure it never happened again. K.A. then asked Reardon whether anything would happen to the family dog or her guinea pigs if she told. Reardon assured her that nothing would. Reardon testified that “[K.A.] took a great big deep breath, and like her shoulders relaxed, and she just came forth and started telling all kinds of stuff.”

¶ 17 K.A. told Reardon that defendant would take her into Burwell's bedroom and put her on Burwell's bed. K.A. demonstrated for Reardon how she would try to pull her underpants up when defendant would pull them down. K.A. told Reardon that defendant “put his privates on her privates, and on her bottom” and “put his mouth on her privates.” K.A. pointed to her vagina when she referred to her privates. Reardon asked K.A. if defendant's privates went inside of her privates, to which K.A. responded that defendant's privates were “on top” of her privates. K.A. also said defendant kissed her neck, leaving a red mark, and used a cold spoon from the freezer to make the redness go away before Burwell got home. K.A. stated that defendant “told her that he could love her like he loves her mom, and he was showing her how you love each other.” Following this conversation, Reardon and Burwell contacted the police.

¶ 18 3. K.A.'s Recorded Statements to Seiler

¶ 19 Seiler testified that he received specialty training at Finding Words, which specializes in the interviewing of child sex victims. On July 9, 2011, Seiler conducted an audio and video-recorded interview of K.A. The recording of that interview was played in its entirety at the hearing.

¶ 20 During the interview, Seiler showed K.A. anatomically correct drawings of a nude girl and a nude boy and asked her to identify various parts of the male and female body. K.A. identified the female genitals as the “woo-woo,” the female breasts as “boobies,” the buttocks as the “butt,” and the male genitals as “privates.” K.A. told Seiler that defendant touched her (1) on the outside and inside of her woo-woo and butt with his fingers; (2) on the inside of her woo-woo and butt with his privates; and (3) on her boobies, lips, and butt with his mouth. She explained that when this would happen, defendant kept trying to pull her pants down and she kept trying to pull them up. K.A. further stated that sometimes defendant's pants were on, and sometimes they were pulled down. When defendant touched her woo-woo or butt with his privates, his privates would be “shaking up and down.”

¶ 21 K.A. told Seiler that defendant touched her on her woo-woo or butt with his fingers or privates three or four times when she was eight years old (her age at the time of the interview). Each time, he did so in Burwell's bedroom with the door locked when Burwell was not home. K.A. told Seiler that “usually” Kim Stone—Burwell's “best friend”—was present at the apartment when defendant touched her. However, K.A. asserted that Stone did not know what was happening in the bedroom because defendant would always lock the bedroom door and tell Stone “something different.” After these incidents, defendant would tell K.A. not to tell her mom or else he would not let her see Jasper, the dog that he took care of, and he would take away her guinea pigs. K.A. told Seiler that she believed defendant, adding that she did not want to tell on him because then he would leave, her mom would get mad, and he would tell her mom something different.

¶ 22 When Seiler asked K.A. if she had ever seen defendant “do this to someone else,” K.A. said “no,” but then described an incident in which she, defendant, and A.W. were playing hide-and-seek at Burwell's apartment when no one else was home. While K.A. was hiding, defendant found A.W. and took her into Burwell's bedroom. K.A. could...