People v. Bryant

• Decision Date: 17 June 2009
• Docket Number: No. 4-05-1071.,4-05-1071.
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Lance M. BRYANT, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

909 N.E.2d 391

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Lance M. BRYANT, Defendant-Appellant.

No. 4-05-1071.

Appellate Court of Illinois, Fourth District.

June 17, 2009.

Justice STEIGMANN delivered the opinion of the court:

In October 2005, a jury convicted defendant, Lance M. Bryant, of two counts of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2004)). Count I alleged that he committed that offense by placing his penis in the anus of M.S., who was under 13 years of age when defendant committed that act. Count II alleged that defendant placed his penis in M.S.'s mouth. In December 2005, the trial court sentenced defendant to consecutive nine-year prison terms on each count.

Defendant appealed, arguing that the trial court erred by (1) granting the State's motion to permit M.S. to testify via closed-circuit television; (2) allowing testimony of M.S.'s hearsay statements, pursuant to section 115-10 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-10 (West 2004)), because that section is unconstitutional; (3) allowing testimony of M.S.'s hearsay statements that defendant placed his penis in her mouth when she did not testify to that at trial; and (4) failing to give Illinois Pattern Jury Instructions, Criminal, No. 11.66 (4th ed.2000) (hereinafter IPI Criminal 4th), as required by section 115-10(c) of the Code (725 ILCS 5/115-10(c) (West 2004)). In March 2007, this court rejected defendant's arguments and affirmed. People v. Bryant, No. 4-05-1071 (May 31, 2007) (unpublished order under Supreme Court Rule 23).

Defendant filed a petition for leave to appeal with the Supreme Court of Illinois. In January 2009, that court denied his petition but also entered the following nonprecedential supervisory order:

"In the exercise of this court's supervisory authority, the Appellate Court, Fourth District, is directed to vacate its order in People v. Bryant, No. 4-05-1071 (May 31, 2007). The appellate court is instructed to reconsider its decision in light of this court's opinion in In re Rolandis G., [232 Ill.2d 13, 327 Ill. Dec. 479, 902 N.E.2d 600 (2008)], to determine whether a different result is warranted." People v. Bryant, 231 Ill.2d 638, 326 Ill.Dec. 425, 899 N.E.2d 1076 (2009) (nonprecedential supervisory order on denial of petition for leave to appeal).

In accordance with the supreme court's directive, we vacate our earlier decision in this case. Further, after reconsidering this case in light of Rolandis G., we conclude that a different result is not warranted. Accordingly, we again disagree with defendant's arguments and affirm his convictions.

I. BACKGROUND

In March 2005, the State charged defendant with four counts of predatory criminal sexual assault of a child, all involving M.S. The first two counts, as earlier described, alleged those offenses occurred during the summer of 2003. Count III alleged that defendant committed the same offense by placing his penis in M.S.'s vagina. Count IV alleged that defendant committed the same offense by placing his penis in the anus of M.S. in December 2004. (The trial court later granted the State's motion to dismiss count IV.)

In August 2005, the State moved to (1) take testimony of M.S. via closed-circuit television, pursuant to section 106B-5 of the Code (725 ILCS 5/106B-5 (West 2004)), and (2) admit hearsay evidence of statements M.S. made, pursuant to section 115-10 of the Code (725 ILCS 5/115-10 (West 2004)).

A. The State's Motion To Take Testimony Via Closed-Circuit Television

At a hearing on the State's motion to take testimony via closed-circuit television, which was held later in August 2005, the State called Lisa Saunders, the director of children's services at the Sexual Assault Counseling and Information Service. Saunders testified that she had been counseling M.S., who was then six years old, for two months. During that time, Saunders had about six different counseling sessions with M.S., with each one lasting approximately 50 minutes. No one else was present during those sessions. Saunders discussed with M.S. how M.S. would be a material witness in the State's case against defendant and explained that she would need to come into court and tell the truth. M.S. responded that she was very afraid to do that. Saunders explained to M.S. that she would be safe and everything would be fine in the courtroom, but M.S. told her that she was afraid that defendant would still get to her where she was sitting "and do that stuff to her again." In Saunders' professional opinion, testifying in the courtroom with defendant present would cause M.S. emotional distress. Saunders believed that M.S. would not be able to testify in front of defendant "because she would be scared, and she said that she thinks he would be real mad at her because she wasn't supposed to tell."

No other witness testified at the hearing. Defendant objected to the State's motion on the ground that his right of confrontation under the United States and Illinois Constitutions (U.S. Const., amend. VI; Ill. Const.1970, art. I, § 8) would be impaired. The trial court granted the State's motion, explaining as follows:

"The [c]ourt finds that the motion is well taken. The [c]ourt finds that the [d]efendant is charged with an offense as alleged in the statute. The [d]efendant is charged with predatory criminal sexual assault of a child. The court finds that [M.S.] is under [18] years of age. The [c]ourt further finds from the testimony offered before it that the testimony of [M.S.], the alleged child victim, in the courtroom in the presence of the [d]efendant would result in [M.S.] suffering serious emotional distress. It has been testified that [M.S.] indicated she did not want to be present in the same room with the [d]efendant. She was fearful that he might be able to get to her. The court finds that the State has met [its] burden of proof necessary for the granting of the motion. The record will reflect that the motion is granted over the objection of counsel for the [d]efendant."

B. The State's Motion To Admit Testimony Pursuant to Section 115-10

At an August 2005 hearing on the State's motion to admit M.S.'s hearsay testimony pursuant to section 115-10 of the Code, Patricia Eastin testified that she was a school social worker at M.S.'s elementary school. In January 2005, Eastin met with M.S. following a referral from her teacher. During that first meeting, M.S. told Eastin, among other things, that whenever she was in the bathroom with defendant at her mother's house (defendant and M.S.'s mother were married at the time), he touched his private parts to her private parts, and she had to wipe "the pee" off her body with toilet paper. Defendant also told her "to suck it," and she did. She then "puked because of the pee."

Charlotte Gano testified that she was employed by the Department of Children and Family Services (DCFS) as a child-protective-services worker. In January 2005, Gano interviewed M.S. and videotaped the interview, which was shown in court during the hearing. M.S. told Gano, in part, that defendant "put his wiener in her butt, that it made her butt bleed, and then it hurt to poop."

Noelle Cope, a nurse practitioner at Sarah Bush Lincoln Hospital, testified that in February 2005, she examined M.S., who told her that defendant had put his private in her private. Cope asked M.S. to identify her private, and she "pointed toward her butt." Cope then asked, "Your butt is where you poop from?" and M.S. said, "Yes." M.S. told Cope that it happened "like 100 times" in the bathroom of her house. Cope also asked M.S. if it hurt when this occurred, and she responded, "Yes," saying that there had been "some blood in her poop one time." M.S. also told Cope that defendant had made her put her mouth on his private, and he told her "he was going to pee," and M.S. said it tasted like blood.

Cope also noted some peculiar findings on M.S.'s anal area. Cope explained that (1) anuses are usually linear or circular, but M.S.'s anus was a "y-shape"; (2) M.S. had some thick scarring present; and (3) Cope made other findings about similarly abnormal circumstances. Cope explained that these findings were not specific for sexual abuse, but they could certainly be caused from anal penetration.

After the State represented to the trial court that M.S. would be testifying at trial, the court found that (1) the statutory requirements for the admissibility of M.S.'s hearsay statements under section 115-10 of the Code were met and (2) Eastin, Gano, and Cope would be permitted to testify to those statements at trial.

C. Testimony at Trial

Because defendant is not challenging the sufficiency of the evidence at trial to sustain his convictions, we will review it only to the extent necessary to put his arguments in context.

The State's first witness at the October 2005 jury trial was M.S., who testified via closed-circuit television. M.S. testified that she was seven years old and lived with her grandmother. Before that, she lived with defendant, her mother, and her siblings. M.S. also testified that defendant put his private part in her bottom more than 10 times. M.S. talked to a counselor at school about what he did to her but said she did not remember talking about it to a nurse in a doctor's office.

Eastin, Gano, and Cope all testified substantially consistently with the testimony they gave at the August 2005 hearing on the State's motion to admit hearsay testimony under section 115-10 of the Code.

After the State rested, the trial court denied defendant's motion for a directed verdict as to counts I and II but granted it as to count III. The court found that no evidence had been presented of vaginal penetration as alleged in count III.

Several witnesses testified on defendant's behalf as to his reputation for being a moral and decent person. Defendant testified and denied any type of sexual contact with M.S.

On this evidence, the jury...