People v. Garcia-Cordova

• Decision Date: 26 June 2009
• Docket Number: No. 2-07-0550.,2-07-0550.
• Citation: 392 Ill. App. 3d 468,912 N.E.2d 280
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Daniel GARCIA-CORDOVA, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

912 N.E.2d 280

392 Ill. App. 3d 468

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Daniel GARCIA-CORDOVA, Defendant-Appellant.

No. 2-07-0550.

Appellate Court of Illinois, Second District.

June 26, 2009.

Rehearing Denied July 28, 2009.

Patricia Unsinn, Deputy Defender Office of State Appellate Defender, Levi S. Harris, Office of State Appellate Defender, Chicago, IL, for Appellant.

Michael J. Waller, Lake County State's Attorney, Waukegan, IL, Lawrence M. Bauer, Deputy Director State's Attorney Appellate Prosecutor, Edward R. Psenicka, State's Attorneys Appellate Prosecutor, Elgin, IL, for Appellee.

Presiding Justice ZENOFF delivered the opinion of the court:

On February 8, 2007, a jury found defendant, Daniel Garcia-Cordova, guilty of three counts of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2004)). On defendant's motion for judgment notwithstanding the verdict, the trial court entered judgments of acquittal on two of the three counts for which the jury had returned guilty verdicts. Defendant was sentenced to 24 years' imprisonment on the remaining count. Defendant filed a motion to reconsider the sentence, which the trial court denied. Defendant then appealed. We initially dismissed this appeal for lack of jurisdiction on February 27, 2009, having found that defendant's notice of appeal was premature. People v. Garcia-Cordova, No. 2-07-0550, 912 N.E.2d 280, 2009 WL 2004057 (2009) (unpublished order under Supreme Court Rule 23). The Illinois Supreme Court issued a supervisory order on April 7, 2009, which vacated our February 27, 2009, order and directed us to treat defendant's notice of appeal as validly filed.

On appeal, defendant raises three issues: (1) whether testimony regarding the victim's out-of-court statements was inadmissible under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004); (2) whether the trial court erred in admitting evidence that defendant had been sexually abused as a child; and (3) whether the trial court abused its discretion in sentencing defendant to 24 years' imprisonment. For the reasons that follow, we affirm.

BACKGROUND

On April 26, 2006, defendant was indicted on two counts of predatory criminal sexual assault of a child. Count I alleged that between April 5, 2005, and April 5, 2006, defendant, being over the age of 17, committed an act of sexual penetration with the victim, C.R., who was under the age of 13, in that defendant placed his penis in the mouth of C.R. Count II alleged that between April 5, 2005, and April 5, 2006, defendant, being over the age of 17, committed an act of sexual penetration with C.R., who was under the age of 13, in that defendant placed his finger in the vagina of C.R.

Following a hearing pursuant to section 115-10 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-10 (West 2006)), the trial court determined that statements C.R. had made to witness Jennifer Bare¹ were not testimonial statements pursuant to Crawford and were otherwise admissible under section 115-10. The trial court also determined that statements C.R. made to Christina Kruschwitz, an investigator with the Department of Children and Family Services (DCFS), were testimonial and, thus, pursuant to Crawford, would be admissible at trial only if C.R. were to testify at trial.

On July 12, 2006, defendant was indicted on six additional counts of predatory criminal sexual assault of a child. Count III alleged that between April 5, 2005, and April 5, 2006, defendant, being over the age of 17, committed an act of sexual penetration with C.R., who was under the age of 13, in that defendant placed his penis in the vagina of C.R. Counts IV through VIII contained the same allegations as count II. In response to a request for a bill of particulars, the State specified that counts IV, V, VI, and VII were all separate and independent acts of penetration. Count VIII was nol-prossed on September 27, 2006.

Following an unsuccessful motion to suppress the written statement he gave to the police, defendant filed a motion in limine seeking to keep out portions of the written statement. Specifically, defendant sought to prevent the admission of those portions in which he stated that he had been sexually abused as a child and that he was a drug addict and alcoholic. The trial court granted defendant's motion in limine with respect to defendant's statement that he was a drug addict and alcoholic, but denied the motion with respect to defendant's statement that he had been sexually abused as a child.

Defendant's trial began on February 7, 2007. Jennifer Bare testified first. Bare testified that she was a student at the Scholl University Clinic in North Chicago, Illinois. While working in the clinic one day, a patient came in with her two daughters, one of whom was C.R. While the patient was getting an X-ray, Bare sat in the clinic hallway with the two little girls. Bare testified that while sitting in the hallway, C.R. asked her if she could keep a secret. Bare responded in the affirmative, after which C.R. told Bare that her father "makes [her] put his thing in [her] mouth."

C.R.'s mother, Michelle, testified that she had two daughters: C.R. and Danielle. C.R. was seven at the time of trial. Defendant, Michelle's ex-boyfriend, was the biological father of Danielle but not of C.R. Michelle testified that she had known defendant for six years and that she had lived with him for one year.

C.R. testified next. She testified to some general preliminary matters, such as her age, family members, and schooling. When asked if she lived with someone else before she lived with only her mother and Danielle, C.R. answered no. When asked if she knew somebody she called father or Daniel, she shook her head. The record does not specifically indicate whether she shook her head back and forth or nodded up and down. She did, however, identify defendant in court as the person she referred to as Danny or her stepdad. The State then asked if C.R. recalled going to a medical clinic with her mother and telling someone there a secret. C.R. testified that she did not remember doing that.

C.R. did testify that she recalled meeting with someone named Christina and that a person named Alan was also present when she met with Christina. C.R. testified that she recalled speaking with Christina and drawing pictures during their meeting. She did not recall why she spoke with Christina or what the room looked like when she spoke to Christina. C.R. identified People's Exhibit 7 as a drawing she made. When asked what the picture was about, C.R. responded, "It was a long time ago." C.R. identified herself and defendant's hand in the drawing. She gave no response when asked what defendant's hand was doing in the drawing. When asked whether she printed the words on the drawing, C.R. shook her head but gave no audible response, and the record does not specifically indicate whether C.R. shook her head back and forth or nodded up and down. When shown People's Exhibit 9, which consisted of a single sheet of paper with two separate drawings on it, C.R. identified a drawing of her, Danielle's, and defendant's faces with "blankies" below their faces. She did not recall what the blankets were on. She also identified on Exhibit 9 a drawing of herself and defendant sitting on a couch. She testified that she did not know what defendant was doing on the couch. The State then showed C.R. People's Exhibit 6. She testified that she did not recall drawing People's Exhibit 6. C.R. testified that she did not know why she drew any of the pictures of herself and defendant.

When shown People's Exhibits 1 and 2, which were charts of a female child's anatomy from the front and back, C.R. testified that she did not remember ever seeing them. C.R. testified that she recalled seeing People's Exhibit 3, a chart of a male child's anatomy from the front, but did not recall when she saw it or whether she drew anything on it. She also testified that she recalled seeing People's Exhibit 4, a chart of a male child's anatomy from the back, but did not recall when or where she saw it.

C.R. testified that she recalled when defendant lived with her, her mother, and her sister, but testified that she did not recall anything happening in her bedroom or on the couch. C.R. also testified that she did not know what part of the body the bottom part of a bathing suit covered and that she did not know whether there were certain parts of her body that should not be touched.

Defense counsel did not cross-examine C.R.

Sergeant Alan Lother of the Zion police department testified that as a result of receiving an incident report from DCFS in March 2006, he contacted C.R.'s mother. On April 4, 2006, he and Kruschwitz met with C.R. at the Lake County Advocacy Center. During that meeting, Lother's role was simply to take notes.

Lother testified that he also interviewed defendant on April 4, 2006, at the Zion police department following the meeting with C.R. Assisting Lother in interviewing defendant was Lieutenant Kirk Henderson; Lother, however, was the primary interviewer.

Lother testified that after reading defendant his Miranda rights, he informed defendant of the specific allegations that C.R. had made against him. Defendant denied having abused C.R. According to Lother, he and defendant discussed defendant's life and his relationship with C.R. and her mother. During that conversation, Lother testified, defendant stated that he had been a victim of sexual abuse when he was a child. Lother testified that he then told defendant that "a lot of times people who are victims of things later on create similar situations to that; that they will treat others the same way they were treated because that is how they understand that expression." At one point, Lother suggested that defendant loved C.R. and that defendant was taught to express love through his alleged actions. According to...