People v. Dabney

• Decision Date: 02 October 2017
• Docket Number: Appeal No. 3-14-0915
• Citation: 87 N.E.3d 1012,2017 IL App (3d) 140915
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Hiram DABNEY, Sr., Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2017 IL App (3d) 140915

87 N.E.3d 1012

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

v.Hiram DABNEY, Sr., Defendant-Appellant.

Appeal No. 3-14-0915

Appellate Court of Illinois, Third District.

Opinion filed October 2, 2017

Michael J. Pelletier, Peter A. Carusona, and Katherine M. Strohl, of State Appellate Defender's Office, of Ottawa, for appellant.

James R. Rowe II, State's Attorney, of Kankakee (Patrick Delfino, Lawrence M. Bauer, and Gary F. Gnidovec, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

JUSTICE CARTER delivered the judgment of the court, with opinion.

¶ 1 After a jury trial, defendant, Hiram Dabney, Sr., was convicted of four counts of aggravated criminal sexual abuse ( 720 ILCS 5/11-1.60 (West 2012) ) and was sentenced to concurrent terms of 3½ years in prison. Defendant appeals, arguing that his constitutional rights under the confrontation clause were violated when the trial court admitted the child victim's videotaped statement into evidence at defendant's trial. We affirm the trial court's judgment.

¶ 2 FACTS

¶ 3 In October 2013, defendant was charged with committing four counts of aggravated criminal sexual abuse against K.J. The charging instrument alleged that on August 10, 2013, defendant, who was 17 years of age or older, committed four separate acts of sexual conduct against K.J., who was under 13 years of age when the acts were committed, in that defendant, for the purpose of his own sexual arousal, knowingly placed (1) his hands on K.J.'s breasts (count I); (2) his hands on K.J.'s vagina (count II); (3) his hands on K.J.'s buttocks (count III); and (4) his penis against K.J.'s buttocks (count IV).

¶ 4 During pretrial proceedings, the State filed a notice of intent pursuant to section 115-10 of the Code of Criminal Procedure of 1963 (Code) ( 725 ILCS 5/115-10 (West 2012) ), indicating that it intended to use certain out-of-court statements that K.J. had made to Bridgett B. (K.J.'s grandmother) and Andrea Longtin (a forensic interviewer) as evidence at defendant's trial. A section 115-10 hearing was later held on the statements. Both Bridgett and Longtin testified at the hearing. After listening to the testimony of the two witnesses, viewing a video recording of Longtin's interview of K.J., and listening to the arguments of the attorneys, the trial court ruled that K.J.'s out-of-court statements were admissible as long as K.J. testified at the trial.

¶ 5 A jury trial was held on the charges in July 2014. The evidence presented at the trial can be summarized as follows. Bridgett B. testified for the State that she was K.J.'s grandmother. K.J. was 11 years old at the time of trial. Defendant was in his 50s and had been a family friend for several years. On August 10, 2013, Bridgett picked up K.J. during the evening hours after Bridgett got off of work and brought K.J. to Bridgett's house. While they were at Bridgett's house, K.J. asked Bridgett "what happened to men that mess[ed] with little girls they shouldn't be touching." When Bridgett questioned K.J. about what she had asked, K.J. started crying and told Bridgett that defendant had been "touching on [her]" that day on her breasts and between her legs and that she had to push defendant away. Bridgett asked K.J. about the matter again the following morning, and K.J. told Bridgett the same thing, so Bridgett called the police. When Bridgett saw defendant later that day, she asked defendant why he would do that. Defendant stated that he did not know, ran out of the house, and left.

¶ 6 K.J. testified for the State that she had known defendant for almost her whole life. On August 10, 2013, during the morning hours, K.J. was at home and was in the hallway, cleaning up a mess from a popsicle that she and her little sister had eaten. K.J. was 10 years old at the time and was wearing a long nightgown. While K.J. was having a conversation with defendant, defendant touched K.J. on her bottom over her nightgown with his hand. Defendant was the only adult in the house at the time. K.J. pushed defendant away and went into the kitchen. Defendant followed her. Defendant came up behind K.J. and touched her bottom and her breast with his hands. Defendant was wearing pajama pants at the time. K.J. pushed defendant away again and ran into the other room. K.J. was scared and worried and did not know if defendant had touched her on purpose or accidentally. She then went to the bathroom and brought her sister with her. When K.J. opened the bathroom door, defendant was standing there. Defendant told K.J. that she could not tell her grandma or mom what had happened or he would get in trouble. K.J. felt very scared at that time. When K.J.'s grandma returned to the home, defendant left.

¶ 7 Later that day, after defendant returned to the home, he again touched K.J.'s bottom over her nightgown while they were taking a fan from the home out to the shed. When K.J. went back into the house, defendant sat next to K.J. and started rubbing her elbow. K.J.'s mom was home at that time. Defendant stated that he had to catch the bus and left. Bridgett B. picked K.J. up later and took K.J. to her house, where K.J. told Bridgett about defendant touching her. K.J. told Bridgett the same thing the following morning. At some point, K.J. overhead Bridgett confront defendant about what had happened. Defendant told Bridgett that he was sorry and that he did not know why he had done that. K.J. later talked to a woman at the Children's Advocacy Center about what had happened.

¶ 8 In addition to the testimony set forth above, K.J. also responded to a few of the questions asked of her in direct examination by stating that she could not remember or that she was not sure.

¶ 9 Defense counsel asked K.J. several questions on cross-examination, and K.J. answered all of those questions. Defense counsel asked K.J. about where she had stayed the night before the incident; who was present at her home on the day of the incident; when those people who were present came to, or left from, the home; whether K.J. had discussed the incident with her mother and grandmother prior to her testimony at trial; whether K.J.'s memory was clear as to what had happened when the incident occurred; whether K.J. had told her stepdad that nothing had happened between her and defendant; whether she had told Bridgett about the incident when Bridgett first returned to the home that day after defendant had left; whether she knew that defendant was going to be coming back to the home later that day; and whether the police had taken any photographs of K.J. after the incident was reported. Defense counsel, however, did not ask K.J. any specific questions about any of the acts of sexual conduct that defendant had allegedly committed. In sum, defense counsel's cross-examination and re-cross examination of K.J. spanned about nine pages of the trial transcript.

¶ 10 Andrea Longtin testified for the State that she was a forensic interviewer with Child Network. On August 15, 2013, Longtin interviewed K.J. about the incident. The interview was video recorded. During her testimony, Longtin identified the video recording and anatomical line drawings of a female child and a male child. On the anatomical drawing of the female, K.J. had circled the vagina (labeled as the "private"), buttocks (labeled as the "bottom"), and breasts as the parts of her body that defendant had touched. On the drawing of the male, K.J. had circled the hands and the penis (labeled as the "genitals") as the parts of the body with which defendant had touched her. The video recording and the drawings were admitted into evidence without objection and were viewed by the jury. Of relevance to this appeal, the out-of-court statement that K.J. had made to Longtin on the video recording established that, in addition to touching K.J.'s butt and breasts with his hands, defendant had also touched K.J.'s vagina with his hands and her buttocks with his penis.

¶ 11 James Hill testified for the defense that he had been dating, and living with, K.J.'s mother for the past several years. Hill had a good relationship with K.J. and her siblings. A day or two after the incident, after K.J. came home from her grandmother's house, Hill asked K.J. if defendant had touched her. K.J. had a puzzled look on her face—like a deer in the headlights. K.J. denied that defendant had touched her and told Hill that defendant had said something and raised his hand up but did not touch her.

¶ 12 After being duly admonished by the trial court, defendant chose not to testify. Following closing arguments and deliberations, the jury found defendant guilty of all four counts of aggravated criminal sexual abuse. After a sentencing hearing, the trial court sentenced defendant to concurrent terms of 3½ years in prison. Defendant appealed.

¶ 13 ANALYSIS

¶ 14 Defendant's sole contention on appeal is that his constitutional rights under the confrontation clause were violated when the trial court admitted K.J.'s videotaped statement into evidence at defendant's trial. Defendant asserts that K.J. did not appear for cross-examination as required by the confrontation clause as to two of the charges because she made no mention whatsoever during her trial testimony that defendant had allegedly touched her vagina with his hands and had touched her buttocks with his penis. Defendant acknowledges that he did not properly preserve this issue for appellate review because he failed to object to the admission of the statement at trial and failed to raise the issue in a posttrial motion but asks that we reach the merits of this issue, nevertheless, under the second prong of the plain-error doctrine. Based upon the merits of the alleged error, defendant asks that we reverse all four of his convictions and remand this case for a new trial.

¶ 15 In addition to asserting forfeiture, the State argues that the defendant's constitutional rights under the confrontation clause were not violated...