People v. Davis, 5-88-0371

• Decision Date: 01 February 1991
• Docket Number: No. 5-88-0371,5-88-0371
• Citation: 153 Ill.Dec. 82,566 N.E.2d 932,208 Ill.App.3d 33
• Parties: , 153 Ill.Dec. 82 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Roger G. DAVIS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 932

566 N.E.2d 932

208 Ill.App.3d 33, 153 Ill.Dec. 82

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Roger G. DAVIS, Defendant-Appellant.

No. 5-88-0371.

Appellate Court of Illinois,

Fifth District.

Feb. 1, 1991.

Daniel M. Kirwan, Deputy Defender, E. Joyce Randolph, Asst. Defender, Office of the State Appellate Defender, Mount Vernon, for defendant-appellant.

Darrell Williamson, State's Atty., Chester, Kenneth R. Boyle, Director, Stephen E. Norris, Deputy Director, Raymond F Buckley, Jr., Staff Atty., Office of the State's Attys. Appellate Prosecutor, Mount Vernon, for plaintiff-appellee.

Justice GOLDENHERSH delivered the opinion of the court:

After a jury trial in the circuit court of Randolph County, defendant, Roger G. Davis, was found guilty of aggravated criminal sexual abuse (Ill.Rev.Stat.1985, ch. 38, par. 12-16(c)(1)) and aggravated criminal sexual assault (Ill.Rev.Stat.1985, ch. 38, par. 12-14(b)(1)). Defendant was sentenced to five years' imprisonment on the abuse charge and 10 years' imprisonment on the assault charge, to run concurrently. In this cause defendant questions whether the circuit court erred in (1) admitting the testimony of Tish LaRock that she believed the victim was truthful in her description of the assault, (2) allowing Abigail Moore-Runge to testify that abused children frequently masturbate after being abused, (3) admitting testimony that defendant had watched pornographic movies in the same time frame he sexually assaulted his daughter, and (4) failing to appoint alternate counsel for post-trial matters. We affirm.

On May 20, 1988, defendant was charged by amended information with the aggravated criminal sexual abuse of his 10-year-old daughter, J.D., between June 12, 1986, and July 15, 1986. In another count, he was charged with the aggravated criminal sexual assault of J.D. between October 30, 1986, and November 25, 1986.

A jury trial was held on May 23 and 24, 1988. J.D. testified that defendant regularly touched her "private parts" beginning when she was 2 1/2 years old. According to J.D., defendant touched her with both his hand and his penis. When she was five years old, her parents divorced and her father moved. After a while, defendant married J.D.'s stepmother, Gayla Davis.

J.D. visited defendant and Gayla near the end of June 1986. At that time, defendant touched J.D. with his hands again. He touched her buttocks and rectum, his finger entering the rectum. He did nothing else, as the telephone rang, and he was interrupted. Between Halloween and Thanksgiving of that same year, defendant penetrated J.D.'s vagina with his penis.

During 1986, J.D. visited her father and stepmother every other weekend. During that time, defendant frequently would not wear any clothes in the house. When she stayed at defendant's house, J.D. slept on the couch. While she slept on the couch, defendant often would watch pornographic movies in the same room.

In December 1986, J.D. first reported the activity to the authorities. At that time, however, she did not recount defendant's touching her with his penis. She finally reported this in February 1987, explaining that she was "holding it back."

Tish LaRock, a pediatric nurse at Cardinal Glennon Children's Hospital, stated that most of her training had been specifically in sexual abuse evaluations. Nurse LaRock has worked with sexually abused children since 1979, dealing with over 3,000 children she believed to have been sexually abused. She explained that as part of her training, she learned how to talk to children without leading them into making specific statements. As part of her interviews with the children, LaRock used anatomically correct dolls to find out how much the children knew about "private parts" and to clarify a child's statement. According to LaRock, J.D. was very familiar with the private parts of the dolls and was somewhat anxious and embarrassed answering her questions.

When the People asked if J.D. appeared to be a child who had been sexually abused, Nurse LaRock stated:

"I felt that she was very truthful in her answers. We clarified from the beginning that she was to tell me the truth and she attempted--I felt that she was being very truthful in answering the questions."

During closing arguments, the People reminded the jury of this statement.

On cross-examination, defense counsel also asked LaRock whether she thought J.D. had been truthful when she talked with her in February 1987. Again, LaRock stated that she felt J.D. had been truthful.

Gayla Davis testified that in 1983 she had seen J.D. spread her legs, bend her knee and rub her vaginal area. In addition, she had seen J.D. rubbing herself through her clothes. Child abuse investigator Abigail Moore-Runge testified that she had training in investigating child abuse and had frequently testified in such cases. Moore-Runge stated that she was not surprised to discover that J.D. had been masturbating. Moore-Runge stated that such behavior is not rare among sexually abused children. It was her "understanding" that children, once stimulated, will re-stimulate themselves. During closing arguments, the People reminded the jury of this testimony as well.

Defendant filed a one-page motion for a new trial alleging that he had not been found guilty beyond a reasonable doubt. He later filed, pro se, a supplement to the motion attacking the credibility of LaRock and Dr. Monteleone, another witness.

On June 27, 1988, the court held a sentencing hearing. At that time, defendant spoke directly to the court. He indicated that he felt his attorney had not done an adequate job of challenging the credibility of LaRock and Monteleone. Defendant did not ask the court to appoint new counsel, however. The motion for a new trial was denied, and defendant was sentenced.

Defendant's first issue on appeal is whether the circuit court erred in allowing Nurse LaRock to testify that, in her opinion, the victim was being truthful in describing the assault. Defendant specifically argues that LaRock's testimony improperly bolsters the victim's testimony and invades the province of the jury. The People respond that the issue is waived because defendant did not object to it either at trial or in a written post-trial motion. In fact, defendant specifically questioned the witness about the statement at length.

The case at bar is similar to People v. Killebrew (1973), 55 Ill.2d 337, 303 N.E.2d 377, where defendant failed to object at trial to the admission of a mug shot, and then questioned the witness at length about it. The supreme court stated that failure to object waives the objection. The court then reaffirmed its holding that "[a] party cannot sit by and permit evidence to be introduced without objection and upon appeal urge an objection which might have been obviated if made at trial." (55 Ill.2d at 341, 303 N.E.2d at 380; see also People v. Trefonas (1956), 9 Ill.2d 92, 98, 136 N.E.2d 817, 820.) It seems clear that defendant is attempting to do that here.

This case is remarkably similar to the recent Second District Appellate Court case of People v. Hickox (1990), 197 Ill.App.3d 205, 143 Ill.Dec. 180, 553 N.E.2d 1166. In Hickox, the defendant argued that the circuit court erred in considering expert testimony of the complaining child's credibility. There, the defendant also failed to object to the testimony either at trial or in a post-trial motion. The Second District Appellate Court, citing People v. Enoch (1988), 122 Ill.2d 176, 119 Ill.Dec. 265, 522 N.E.2d 1124, held the issue waived. 197 Ill.App.3d at 215, 143 Ill.Dec. at 188, 553 N.E.2d at 1174.

Defendant next argues that, although not preserved by a contemporaneous objection at trial or by a post-trial motion, the error was a plain error involving a substantial right of defendant. Thus, defendant urges this court to review it under Supreme Court Rule 615(a) (107 Ill.2d R. 615(a)).

The plain error doctrine is applicable "only when the question of guilt is close and the evidence in question might have significantly affected the outcome of the case [citations], or where the error alleged is so substantial as to reflect on the fairness or impartiality of the trial regardless of how closely balanced the evidence is [citations]." (People v. Sanders (1983), 99 Ill.2d 262, 273, 75 Ill.Dec. 682, 687, 457 N.E.2d 1241, 1246; People v. Hickox (1990), 197 Ill.App.3d at 215, 143 Ill.Dec. at 188, 553 N.E.2d at 1174.) It does not appear to us that the evidence in this case is closely balanced nor the evidence in question so substantial as to reflect on the fairness or impartiality of the trial. We therefore decline to review this under the plain error doctrine.

Defendant next argues that the testimony of Abigail Moore-Runge was lacking a proper foundation, was irrelevant and inflammatory. The witness was allowed to testify that it is her "understanding" that children who have been sexually assaulted or abused masturbate in reenactment of the event. The People respond that the issue is waived by defendant's failure to bring it up in a post-trial motion. In the alternative, the People argue that the witness was qualified and a foundation was properly laid. In addition, the People argue that the testimony is extremely relevant.

We do not believe this issue was waived. The record is clear--defendant objected at trial, the court sustained the objection, and requested additional foundation evidence. The People presented additional evidence of the witness' qualifications, background and experience. The People then re-asked the question. Defendant objected again, and the court overruled the objection.

Defendant argues that the witness offered no evidence to support her conclusions other than her basic qualifications and credentials as a child abuse investigator. This is true. Defendant further argues that because the People offered no testimony describing the basis of the witness' opinion, defendant could not...