People v. Donoho, 92988.

• Decision Date: 03 April 2003
• Docket Number: No. 92988.,92988.
• Court: Illinois Supreme Court
• Parties: The PEOPLE of the State of Illinois, Appellant, v. Shannon DONOHO, Appellee.

788 N.E.2d 707

204 Ill.2d 159

273 Ill.Dec. 116

The PEOPLE of the State of Illinois, Appellant, v. Shannon DONOHO, Appellee.

No. 92988.

Supreme Court of Illinois.

April 3, 2003.

James E. Ryan, Attorney General, Springfield, Jeff Tomczak, State's Attorney, Joliet (Joel D. Bertocchi, Solicitor General, William L. Browers, Domenica A. Osterberger, Assistant Attorneys General, Chicago, Norbert J. Goetten, John X. Breslin, Nancy Rink Carter, Office of the State's Attorneys Appellate Prosecutor, Ottawa, of counsel), for the People.

Robert J. Agostinelli, Deputy Defender, Kerry J. Bryson, Assistant Defender, Office of the State Appellate Defender, Ottawa, for appellee.

Justice GARMAN delivered the opinion of the court:

Defendant, Shannon Donoho, was tried for one count of criminal sexual assault (720 ILCS 5/12-13(a)(3) (West 1998)) and four counts of aggravated criminal sexual abuse (720 ILCS 5/12-16(b) (West 1998)) based on incidents that occurred between November 1, 1995, and November 29, 1998, involving defendant and his two step-children, K.B. and D.B. Pursuant to section 115-7.3 of the Code of Criminal Procedure of 1963 (the Code) (725 ILCS 5/115-7.3 (West 1998)), the trial court allowed the admission of evidence about defendant's 1983 conviction for indecent liberties with a child arising from a single incident with a 7-year-old girl and an 11-year-old boy. The jury found defendant guilty of all five charges.

The trial court sentenced defendant to a 14-year prison term for criminal sexual assault and to concurrent 7-year terms for each of the four counts of aggravated criminal sexual abuse. The trial court entered the 14-year sentence pursuant to sentence enhancement under section 12-13(b)(4) of the Criminal Code of 1961 (Criminal Code) (720 ILCS 5/12-13(b)(4) (West 1998)) because of defendant's prior conviction for indecent liberties with a child. The appellate court vacated defendant's convictions, remanded for a new trial, and found the trial court erred in enhancing defendant's sentence. 326 Ill.App.3d 403, 411, 413, 260 Ill.Dec. 140, 760 N.E.2d 557. We granted the State's petition for leave to appeal (177 Ill.2d Rs. 315, 612(b)) to address two issues: (1) whether evidence regarding defendant's 1983 conviction for indecent liberties with a child was properly admitted into evidence pursuant to section 115-7.3 of the Code, and (2) whether defendant's conviction for criminal sexual assault was properly enhanced from a Class 1 felony to a Class X felony for sentencing under section 12-13(b)(4) of the Criminal Code based upon his conviction for indecent liberties with a child.

BACKGROUND

Defendant married Lori Donoho on June 10, 1995. Lori had two children from a previous marriage. Her daughter, K.B., was born July 25, 1987; her son, D.B., was born June 9, 1990. Defendant and Lori had a daughter together, A.D., on March 28, 1995.

On April 20, 1999, the State filed an information in Will County against defendant; the subsequent bill of indictment alleged the same six counts, five of which were presented at trial. Count II charged defendant with criminal sexual assault, in that defendant knowingly committed an act of sexual penetration on K.B. by putting his mouth upon her vagina. Count III alleged that defendant committed aggravated criminal sexual abuse because he knowingly touched K.B.'s vaginal area. Count IV stated that defendant committed aggravated criminal sexual abuse by knowingly making K.B. touch his penis. Count V charged defendant with aggravated criminal sexual abuse, in that defendant knowingly touched D.B.'s penis. Finally, count VI alleged that defendant committed aggravated criminal sexual abuse, in that defendant knowingly made D.B. touch defendant's penis. The State filed a superceding bill of indictment on November 24, 1999, to amend count II by classifying it as a Class X felony, enhanced from a Class 1 felony, because of defendant's conviction for indecent liberties with a child (Ill.Rev.Stat.1983, ch. 38, par. 11-4(a)(3)) in Grundy County in 1983 pursuant to section 12-13(b)(4) of the Criminal Code (720 ILCS 5/12-13(b)(4) (West 1998)).

Defendant's jury trial was conducted May 3 through 5, 2000. Terry Marketti, the detective from the Grundy County sheriff's department who worked on defendant's 1983 case, testified for the State. That case involved two children, T.Q., a 7-year-old girl, and M.Q., an 11-year-old boy. Defendant was 18 years old when the incident took place. Marketti testified that at first defendant's statement did not match the children's explanation of the incident. When confronted with this inconsistency, defendant admitted that he put his finger in T.Q.'s vagina. Marketti witnessed defendant sign a two-page statement detailing the incident.

At this point in the testimony, the State requested jurors be given written copies of the statement, to utilize an exhibit that displayed the statement blown up to a larger size, and/or to read the statement aloud, citing section 115-7.3 of the Code. After a sidebar discussion, the trial court sustained the defense objection to publishing the statement to the jury. Marketti then testified that defendant admitted to having both a boy and a girl touch his penis while riding in a car with no one else present.

Lori Donoho testified that in December 1998, she and defendant separated and defendant moved out of the house. After K.B. and D.B. told her about incidents of sexual abuse by defendant, she immediately filed a police report on April 12, 1999.

D.B. testified that he was nine years old and in fourth grade. He demonstrated that he knew the difference between the truth and a lie. D.B. described four incidents of abuse. The first two incidents occurred during the summer before second grade. First, when he and defendant were by a tree in the side yard of the house, defendant touched D.B. "in the pee pee." Second, defendant touched D.B.'s penis while they were alone in the living room. Third, the following summer, they were visiting defendant's parents. Defendant and D.B. were in the shower together, and defendant touched D.B.'s penis. Finally, defendant and D.B. were driving to Farmer City for the Buffalo Festival. Defendant touched D.B.'s penis and made D.B. touch defendant's penis. D.B. explained he never told anyone because defendant told him he would be grounded if he did. One day his sister K.B. came home crying, and they talked about defendant's conduct. They decided to tell their mother about the sexual abuse together. On cross-examination and redirect, D.B. said no one told him what to say; everything that he said really happened.

K.B. testified that she was 12 years old and in sixth grade. More than 10 times, when she and defendant were alone in a room, he told her to pull down her pants and underpants, defendant pulled his pants down, and defendant touched "around my crotch." Sometimes, defendant also made her touch his penis. K.B. testified about four specific instances of these acts of abuse, including while she was playing Nintendo in the bedroom, in the living room (where defendant kissed her crotch), by a pond when they stopped during a drive home from Midway Airport, and in their backyard pool. She did not tell any-one because defendant told her she would be grounded if she did. K.B. finally decided to tell during the spring of the previous year after talking to a friend at school, who encouraged her to tell her mother. She also confirmed that she had not been told what to say and that these events actually happened.

Defendant denied all of the allegations made by D.B. He noted that he and D.B. had showered together once to save hot water, but he did not touch D.B. and D.B. did not touch him. Defendant also denied all of K.B.'s allegations. Although he did give K.B. a bath to remove lice from her hair, he never touched her.

He explained that when he moved out, he took A.D. with him. Lori had threatened to use his "past" if he did not give up custody of A.D. Since the current charges were filed, he has not seen A.D. There had been no other charges against him after those in 1983; he received counseling as part of his 1983 guilty plea and sentence.

On cross-examination, defendant was questioned about the 1983 incident. Defendant said it happened while he and two children drove to church. He did not remember anything happening on the return trip, but it happened 18 years ago. He drove the car into a ditch during the return trip because he hit a patch of ice on the road. During a sidebar discussion, the attorneys and the judge discussed how the State could use defendant's 1983 statement to impeach this testimony. The court ruled that the State could not quote the confession, but counsel could show it to defendant to refresh his memory. Before the jury, the defendant admitted that his statement said that sexual contact also had occurred during the return trip, including when he lost control of the car.

The trial court admitted the 1983 statement into evidence but did not allow it to go back to the jury during deliberations. The statement was made on May 13, 1983, approximately two months after the incident took place. According to the statement, defendant got permission from their parents to take T.Q. and M.Q. with him to church in Coal City. He wanted to take them so that they could play a game in the car involving touching each other. T.Q. sat in the middle next to defendant, and M.Q. sat closest to the passenger door. Defendant had them both take their pants down, and several times he put his finger in T.Q.'s vagina. He made both children touch defendant's penis several times. On the way home, he again put his finger in T.Q.'s vagina and had M.Q. touch his penis, during which he lost control of his car and drove it into a ditch. He had planned to make it a game, but after a while, he was mostly ordering them around. The statement also specified that after he had been told that the children's story was...