People v. Brown, 2-87-0060

• Court: United States Appellate Court of Illinois
• Writing for the Court: NASH
• Citation: 171 Ill.App.3d 391,525 N.E.2d 576,121 Ill.Dec. 518
• Parties: , 121 Ill.Dec. 518 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jimmie L. BROWN, Defendant-Appellant.
• Docket Number: No. 2-87-0060,2-87-0060
• Decision Date: 27 June 1988

Page 576

525 N.E.2d 576 171 Ill.App.3d 391, 121 Ill.Dec. 518 The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Jimmie L. BROWN, Defendant-Appellant. No. 2-87-0060. Appellate Court of Illinois,
Second District. June 27, 1988.

Page 578

[171 Ill.App.3d 394] [121 Ill.Dec. 520] G. Joseph Weller, Deputy Defender, Steven E. Wiltgen (argued), Office of the State Appellate Defender, Elgin, Joan L. Pantsios, Waukegan, for Jimmie L. Brown.

Fred L. Foreman, Lake County State's Atty., William L. Browers, John X. Breslin, Deputy Directors, State's Attorneys Appellate Prosecutor, Ottawa, Nancy Rink Carter (argued), Office of the State Appellate Defender, for the People.

Justice NASH delivered the opinion of the court:

After a jury trial defendant, Jimmie L. Brown, was convicted of aggravated criminal sexual abuse (Ill.Rev.Stat.1985, ch. 38, par. 12-16(d)) and sentenced to 17 years' imprisonment. He appeals contending that (1) the trial court erred by refusing to instruct the jury that defendant's reasonable belief that the complainant was 16 years of age was an affirmative defense to the crime charged; (2) his trial counsel was ineffective for failing to introduce evidence of defendant's reasonable belief that the complainant was 16 years of age; (3) statements[171 Ill.App.3d 395] made in defendant's presence were improperly admitted as an implied admission; (4) defendant's conviction should be reduced to criminal sexual abuse, a Class A misdemeanor, in light of the complainant's age and sexual maturity; and (5) the 17-year sentence imposed was an abuse of discretion.

Officer Randy Furlough testified in trial that on October 22, 1986, he responded to a call at complainant's residence of a burglary in progress and was met by Julie Martinez, the complainant's mother. Furlough and Mrs. Martinez went to an upstairs bedroom, and after knocking on the door and receiving no response, Furlough kicked it open. Defendant and the complainant, DeAnn Martinez, who was 15 years old, were found nude, sleeping in bed. Furlough testified, over objection, that Mrs. Martinez told defendant to "[g]et up; you know she's only 15." Defense counsel stated that his objection was based on prejudice and was "not a matter of hearsay." Defendant was initially arrested for criminal trespass to land, and, when it was learned that he was 23 years old, he was charged with aggravated criminal sexual abuse.

The complainant testified that she was born on November 15, 1970, had known defendant for about eight or nine years, and had been seeing him since the day before her birthday on November 15, 1985. She stated that on October 22, 1986, she let defendant into her bedroom through a window, and, after talking and kissing for a while, they engaged in sexual intercourse. She also stated that she had told defendant before her fifteenth birthday that she was going to be 15. On cross-examination, the complainant testified that she told defendant her correct age both before and after her fifteenth birthday. She also stated that she may have told defendant the day before her fifteenth birthday that she was already 15, and that right after her fifteenth birthday, defendant had told her that he thought she was 16. She did not know the basis for defendant's belief that she was 16. On redirect-examination, the complainant testified that she told defendant she was a freshman in high school, and on re-cross-examination, she "guessed" that there were many freshmen at school who were already 16 years old, but that she didn't know.

Page 579

[121 Ill.Dec. 521] Mrs. Martinez testified that she was awakened on October 22, 1986, by a noise on the roof, and when she went outside, she saw her daughter's bedroom window open, and that it is normally nailed shut. She called the police, and when Officer Furlough arrived and accompanied her to her daughter's bedroom, they found defendant and complainant lying in bed pretending that they were asleep. Mrs. Martinez hit defendant's chest a couple of times, demanding that he get up, and [171 Ill.App.3d 396] he ignored her. She also testified that, while she did not remember exactly what she said, she thought she said "That's it. I am getting you for statutory rape."

Defendant did not testify or present any witnesses on his behalf.

At the jury instruction conference, defense counsel tendered the following Illinois Pattern Jury Instruction on the defense of reasonable belief of age: "It is a defense to the offense of Aggravated Criminal Sexual Abuse that the defendant reasonably believed De Ann Martinez to be 16 years of age or older." (See Illinois Pattern Jury Instructions, Criminal, No. 11.43 (2d ed. Supp.1987) (hereinafter IPI Criminal 2d No. 11.43 (Supp.1987)); see also Ill.Rev.Stat.1985, ch. 38, par. 12-17(b).) The following colloquy took place between the trial judge and defense counsel:

"THE COURT: I think to bring it in as a defense you have to bring somebody in on your side of the case. This is cross examination.

MR. KEEFE [defense counsel]: That's not the law.

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MR. KEEFE: The State has the burden of proving every element of this case beyond a reasonable doubt.

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MR. KEEFE: One of the elements is knowledge.

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MR. KEEFE: What I am saying is this is not an affirmative defense. The burden is not on me to show that he didn't know.

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MR. KEEFE: The burden is not on me to prove this case.

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MR. KEEFE: That came in in the State's case. I don't have to put in any evidence.

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MR. KEEFE: It goes back to my motion to dismiss. You can't show me where in People's 12 there is any guilty knowledge. That's an unconstitutional statute."

The trial court refused the instruction.

The jury found defendant guilty of aggravated criminal sexual abuse and he was thereafter sentenced to 17 years' imprisonment. The presentence report stated that as a minor, defendant was adjudicated a delinquent for criminal trespass to land, aggravated battery, battery, unlawful use of a weapon, and resisting a peace officer, and that defendant had four prior felony convictions as an adult. In May 1981, defendant was convicted for two unrelated burglaries and sentenced[171 Ill.App.3d 397] to three years' probation, the first 90 days to be served at the county jail. In September 1981, defendant was convicted of theft over $150 and sentenced to two years' probation, the first six months to be spent in a drug rehabilitation center. Defendant was convicted of burglary in August 1982 and was sentenced to four years' imprisonment in the Department of Corrections and also had numerous misdemeanor convictions since the age of 18. Because at least two of defendant's prior felony convictions were for Class 2 felonies, and the present conviction was also for a Class 2 felony, defendant was sentenced as a Class X offender pursuant to section 5-5-3(c)(8) of the Unified Code of Corrections. See Ill.Rev.Stat.1985, ch. 38, par. 1005-5-3(c)(8).

Defendant contends that the refusal to instruct the jury as to the affirmative defense of reasonable belief of age was erroneous, asserting that sufficient evidence was adduced during the State's case in chief to warrant the instruction. Alternatively, defendant argues that, under Illinois

Page 580

[121 Ill.Dec. 522] law, an affirmative defense can be developed by cross-examination of a State's witness, and that the complainant's testimony on cross-examination that defendant told her shortly after her fifteenth birthday that he thought she was 16 was sufficient evidence to raise the defense of reasonable belief of age.

Section 12-17(b) of the Criminal Code of 1961 provides that "[i]t shall be a defense under * * * subsection (d) of Section 12-16 of this Code that the accused reasonably believed the person to be 16 years of age or over." (Ill.Rev.Stat.1985, ch. 38, par. 12-17(b).) We note that, in such cases, the predecessor indecent liberties statute (Ill.Rev.Stat.1983, ch. 38, par. 11-4(a)(1)) provided that reasonable belief that a child was 16 years of age or over was denominated as an "affirmative defense" (Ill.Rev.Stat.1983, ch. 38, par. 11-4(b)), but that the present statute does not do so. The committee note to IPI Criminal 2d No. 11.43 (Supp.1987) states that when a defendant is charged with aggravated criminal sexual abuse (Ill. Rev. Stat.1985, ch. 38, par. 12-16(d)), and the defense of reasonable belief of age "is raised by the evidence," an instruction should be given. The committee note refers the reader to the introduction to chapter 24-25 of the Illinois Pattern Jury Instructions for further guidance (IPI Criminal 2d No. 11.43 (Supp.1987)), which generally summarizes the requirement for the production of evidence relating to affirmative defenses and the State's burden of proof once this issue is raised. (Illinois Pattern Jury Instructions, Criminal, No. 24-25.00 (2d ed. 1981).) From the foregoing, we conclude that the defense of reasonable belief of age under section 12-17(b) operates in the same manner as does an [171 Ill.App.3d 398] affirmative defense, at least insofar as the requirement that, "unless the State's...