People v. Cole

• Decision Date: 15 February 1990
• Docket Number: No. 4-89-0143,4-89-0143
• Citation: 550 N.E.2d 723,193 Ill.App.3d 990,140 Ill.Dec. 838
• Parties: , 140 Ill.Dec. 838 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Mark COLE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 723

550 N.E.2d 723

193 Ill.App.3d 990, 140 Ill.Dec. 838

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Mark COLE, Defendant-Appellant.

No. 4-89-0143.

Appellate Court of Illinois Fourth District.

Feb. 15, 1990.

Daniel D. Yuhas, Deputy Defender, Office of State Appellate Defender, Springfield, M. Jeffrey Bergschneider, Asst. Defender, for defendant-appellant.

Scott H. Walden, State's Atty., Quincy, Kenneth R. Boyle, Director State's Attys. Appellate Prosecutor, Springfield, Robert J. Biderman, Deputy Director, James Majors, Staff Atty., for plaintiff-appellee.

Justice SPITZ delivered the opinion of the court.

After a jury trial, defendant was convicted of two counts of aggravated criminal sexual abuse (Ill.Rev.Stat.1987, ch. 38, par. 12-16(d)) and was sentenced to concurrent three-year terms of imprisonment. Defendant appeals, arguing (1) the trial court erred in allowing testimony concerning hearsay statements made by the alleged victim to an acquaintance and to her mother on the day following the alleged offense; (2) he was not proved guilty beyond a reasonable doubt because the alleged victim's testimony concerning the offense was neither clear and convincing nor substantially corroborated; and (3) the order of restitution must be reversed because the amount of restitution ordered was not based on actual losses and expenses already incurred, but on expected counseling expenses.

I. THE EVIDENCE

According to the evidence adduced at trial, defendant's conduct on which the charge was based occurred on Sunday, July 18, 1988, at which time defendant, age 28 engaged in sexual conduct with S.L.M., a 13-year-old girl baby-sitting in his home.

S.L.M.'s family lived in La Grange, Missouri, and S.L.M.'s mother worked with defendant's wife, Mrs. Cole, at a laundromat in Quincy, Illinois. Mrs. Cole had mentioned to S.L.M.'s mother that Mrs. Cole was having some difficulty in finding baby-sitters for her two young daughters, who were seven and eight years old. S.L.M.'s mother then offered her two teenage daughters to baby-sit for Mrs. Cole and agreed to permit S.L.M., one of her daughters, to baby-sit on the night of Saturday, July 17, 1988, at the Coles' home in Mendon, Illinois.

Because of the lateness of the hour at which Mrs. Cole expected to return home, Mrs. Cole and S.L.M.'s mother agreed that S.L.M. would spend the night at the Cole home. On the following day, S.L.M. accompanied the Cole family swimming in the afternoon and bowling in the evening. Mrs. Cole's daughters then asked that S.L.M. be allowed to spend an additional night at their home, and S.L.M.'s mother agreed.

The Cole daughters went to bed about 9 p.m. on Sunday night, and Mrs. Cole retired at about 11:30 p.m. Defendant and S.L.M. stayed up, talking and watching television in the living room. Mrs. Cole, sleeping in the couple's bedroom just off the living room and within 10 feet of the living room sofa, dozed in and out of sleep and heard the television as background noise without being able to understand the words spoken. S.L.M. was to sleep on the sofa.

S.L.M. testified that when Mrs. Cole went to bed, defendant was sitting on the opposite end of the sofa and he started putting S.L.M.'s bare feet on his legs. She pulled her feet away, but he put them back. He then got up and moved over to her side. Then he pulled her T-shirt up and started kissing her on her chest and lips. At some point he pulled her bra down away from her breasts, pulled her blue-jean shorts off, pulled her underwear over, and put his fingers into her vagina. S.L.M. testified that this conduct, from the time defendant put her feet in his lap and through the fondling, lasted about half an hour to an hour. During this time, she did not scream or hit him, but she told him to stop. He did not. She said that after a while defendant got up and went toward the door, looked out the window, and said he saw a police officer about a block away on the corner. She said that defendant told her not to open the door, and then he started looking for papers of some kind. He later went to bed and she remained awake for about an hour.

Mrs. Cole, scheduled to work the following morning, had agreed before she went to bed that rather than have S.L.M. get up very early in the morning to go home, S.L.M. would go home when Mrs. Cole returned from work. When Mrs. Cole left for work, S.L.M. was still sleeping. For most of Monday, S.L.M. spent the day with defendant and his daughters, but was never alone with defendant. When D.M., a 13-year-old boy S.L.M. knew, came to the Cole residence, S.L.M. told him what had happened. He was the first person whom she told. Mrs. Cole came home around 1 p.m. About 10 p.m. that night, Mrs. Cole, accompanied by her daughters, returned S.L.M. to her mother at the laundromat in Quincy. Mrs. Cole's daughters again asked that S.L.M. be allowed to stay another night, but S.L.M.'s mother said no. After Mrs. Cole and her daughters left, S.L.M. told her mother of the events of Sunday night and early Monday morning.

The victim's mother testified as to the baby-sitting arrangement with the Coles and their agreement that S.L.M. would stay at the Cole's home Sunday, Sunday night, and Monday during the day. She further testified that when Mrs. Cole and her daughters brought S.L.M. to the laundromat Monday night, Mrs. Cole's daughters asked that S.L.M. be allowed to stay overnight again. She testified that S.L.M. "kind of made a face," so she told them that S.L.M. could not stay. The victim's mother testified that Mrs. Cole then mentioned the possibility of S.L.M.'s baby-sitting on future weekends. She testified that after Mrs. Cole and her daughters left, S.L.M. said, "Mom, do I have to go back?" and, when she looked at S.L.M. and asked why, S.L.M. said she did not want to go back, began crying, and told her "what had happened."

Defendant took the stand in his own behalf and denied touching or kissing S.L.M. According to defendant, after his wife went to bed on Sunday night, he left the house to call a man about buying a car. The Coles had no telephone in their home. After returning, he looked for some time cards, picked up things in the front room, got a blanket and some books for S.L.M., and went to bed. Defendant was impeached with a misdemeanor theft conviction from 1978.

Defendant's wife testified she had been married to defendant for three years. On the Sunday night in question, her husband went to bed shortly after she did. He even came in and spoke to her several times after she went to bed. She saw nothing unusual happen that night between her husband and S.L.M., and, although she was in bed just around the corner from the couch, she heard nothing going on in the front room other than defendant and S.L.M. watching television and talking.

Mrs. Cole testified that S.L.M. was asleep when she got up to go to work in the morning. She planned to take S.L.M. back to Quincy when she took her husband to work at 3 p.m. According to Mrs. Cole, S.L.M. declined a ride back with the couple when she took defendant to work. She further testified that when she took S.L.M. back to the laundromat in Quincy Monday night, it was S.L.M.--and not her daughters--who asked if she could again stay overnight at the Coles' residence.

II. TESTIMONY CONCERNING THE

VICTIM'S STATEMENT

We first consider defendant's argument that the statements S.L.M. made to D.M., the 13-year-old boy, at least 7 hours after the alleged offense, and to her mother almost 24 hours after the alleged offense, were inadmissible hearsay because they (1) do not qualify as spontaneous declarations, and (2) were not independently admissible under the corroborative complaint rule. The State argues defendant has waived any error concerning statements of S.L.M. to D.M. or to her mother. We agree.

A. Waiver of Any Claimed Error

Defendant filed a pretrial motion in limine to bar the admission of S.L.M.'s statements to various third parties, including D.M. and S.L.M.'s mother. At the hearing on that motion, defendant presented two arguments: first, the statements did not qualify as prompt complaints; and second, prompt complaint testimony is limited to testimony that a complaint of the act occurred, but does not include details of the act or identification. The State indicated it was not going to seek the admission of some of S.L.M.'s statements, and the court then ruled that D.M. and the victim's mother could testify to the fact that a complaint had been made, but could not testify to any other details.

At trial, no objection was interposed when complainant testified about telling D.M. or her mother "what had happened" on the day after the offense. In addition, no objection was interposed when complainant's mother was questioned on this same point. No detail of S.L.M.'s complaint was elicited from either S.L.M. or her mother. D.M. did not testify.

To preserve any issue about whether S.L.M.'s statements were timely enough to qualify as prompt complaints, objections should have been made at trial with this as the stated basis. The failure of defendant's trial counsel to raise any objections to testimony about S.L.M.'s telling "what had happened" appears to us to be hardly inadvertent; rather counsel's failure appears to be due to his satisfaction with the court's ruling on his motion in limine. That defendant now has different counsel on appeal who views the issue differently than did trial counsel is of no moment. The failure of defendant to object at trial waives this issue on appeal. Further, the issue was not preserved by post-trial motion. People v. Enoch (1988), 122 Ill.2d 176, 119 Ill.Dec. 265, 522 N.E.2d 1124.

B. Testimony Concerning Victim's Statements Is Not Hearsay

On the merits, we find no error in the admission of the alleged hearsay testimony concerning S.L.M.'s statements because that testimony was not hearsay. Hearsay is defined as follows:

" 'Hearsay evidence is...