People v. Glass

Decision Date28 December 1992
Docket NumberNo. 4-91-0908,4-91-0908
Citation179 Ill.Dec. 823,239 Ill.App.3d 916,606 N.E.2d 655
Parties, 179 Ill.Dec. 823 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. James Paul GLASS, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois

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

Charles G. Reynard, State's Atty., McLean County Law & Justice Center, Bloomington, Norbert J. Goetten, Director State's Attorneys Appellate Prosecutor, Springfield, Robert J. Biderman, Deputy Director, James Majors, Staff Atty., for plaintiff-appellee.

Justice COOK delivered the opinion of the court:

After a jury trial, defendant James Glass was convicted of three counts of aggravated criminal sexual assault (Ill.Rev.Stat.1989, ch. 38, par. 12-14(b)(1)) and one count of aggravated criminal sexual abuse (Ill.Rev.Stat.1989, ch. 38, par. 12-16(c)(1)). Defendant was sentenced to three consecutive terms of 25 years of imprisonment for the aggravated criminal sexual assault charges and a concurrent term of seven years of imprisonment for aggravated criminal sexual abuse. Defendant appeals his convictions and sentences. We affirm.

On January 30, 1991, defendant was charged with three counts of aggravated criminal sexual assault and two counts of aggravated criminal sexual abuse of his 10-year-old next-door neighbor, E.C. On August 13, 1991, the court held a hearing pursuant to section 115-10 of the Code of Criminal Procedure of 1963 (Code) (Ill.Rev.Stat.1991, ch. 38, par. 115-10) to determine the reliability of statements made by the victim, E.C., to Bloomington police officer Mike Jordan. Jordan testified that on January 24, 1991, he met with E.C. at the Bloomington police department along with Lisa Piper from Department of Children and Family Services (DCFS). Jordan said E.C., who was 10 years old at that time, told him that defendant had performed sexual acts with her. E.C. described in detail a few of the incidents and said they mostly occurred in defendant's car or van out in the country except for one occasion which took place in defendant's bedroom in Bloomington. Jordan compiled a typed statement of E.C.'s remarks and had E.C. read the statement over for clarity and to make corrections. The court admitted the statement into evidence as People's exhibit No. 1.

At trial, Jordan testified to his conversations with E.C. on January 24 and January 31 during which he compiled the typed statements of her comments. E.C. told Jordan the first incident happened during the summer of 1990 when she accompanied defendant to the Furrows store. After defendant finished purchasing hardware at Furrows, he drove out into the country and put his hand down E.C.'s shirt and felt her breasts. He then put his hand down her pants and felt her vagina. The second incident E.C. described to Jordan was when she and her best friend, M.C., went into the country with defendant in his van. Defendant gave each of them money for hugs and kisses. The third incident E.C. described to Jordan occurred the day before Christmas eve in 1990 when defendant asked E.C. to come over to his house next door and see his waterbed. When E.C. complied and sat on his bed, defendant removed her pants, pulled up her shirt and began licking her breasts and vagina. E.C. stated that defendant then had her stimulate his penis and testicles. E.C. described to Jordan in detail how defendant had her perform oral sex on him to the point of ejaculation.

Jordan attested to the fact that E.C.'s signature was on the statement and that she had read it over and circled the misspelled words. Jordan said he proceeded to defendant's residence on January 30, 1991, and arrested him shortly thereafter. Jordan could not swear all of the alleged incidents of sexual abuse happened within the borders of McLean County since E.C. could not pinpoint the locations except for the incident in defendant's bedroom. Jordan stated he believed the incident after the trip to Furrows occurred in McLean County because E.C. stated that when they got back close to town and traffic started to get heavy, defendant would stop fondling her.

E.C. testified she was born March 26, 1980, and moved next door to defendant in Bloomington on March 11, 1990. Defendant began spending a lot of time with E.C.'s family soon after they moved in. E.C. would often go places with defendant by herself and he would buy her toys and clothes. E.C. said that defendant touched her "in the wrong places," including her "potty," which she indicated was the area between her legs. E.C. said she did not remember where it happened. She then said she did not remember anything about the first time it happened and did not recall telling Jordan about these incidents in the typed statement. After E.C. was allowed to read her statement to refresh her memory, she said she still did not remember it. E.C. admitted she was scared to tell what happened and did not want to talk about it. She then recalled one time when defendant took her to the State fair. She said defendant had a smile on his face and she "knew he wanted to do sex with me" because he smiled and winked. She said defendant kissed her, did things to her "potty" and her "boobs." She said this occurred in defendant's van during the summer of 1990 in a parking lot across from the State fair.

E.C. also described the incident where defendant asked her to see his waterbed. She said when she went inside his bedroom, defendant shut the door and pulled down her pants and underwear. Defendant took his pants off and proceeded to touch, kiss, and lick E.C.'s vagina and breasts. E.C. described how defendant rubbed his penis on her vagina but said defendant did not put his fingers into her vagina on this occasion. E.C. said she did not remember if she touched him and does not think she had anything in her mouth. She did not remember him doing anything else with his penis. She has tried to forget these things and does not like thinking about it. E.C. said she signed the statement given to Jordan and that it was the truth. She understood what it meant to tell the truth. E.C. said after the incident on the waterbed she went to Havana, Illinois, with defendant to look at houses but defendant did not fondle her on that trip. E.C. also testified defendant drove her and her friend M.C. out in the country and offered them money for hugs and kisses. Defendant gave them both "French and regular kisses" and told them not to tell anyone.

M.C. testified she is 12 years old. She and E.C. would often go places with defendant and he would take them out to eat or buy them clothes. On one occasion he took them to a lake outside of town. Defendant told them he would give each of them $5 for five hugs and kisses. M.C. said while defendant was kissing her he put his hand inside her shirt, rubbed her back, and raised her shirt. Over defense objection, M.C. stated that E.C. told her that on one occasion that defendant "took her (E.C.) into his house and actually did sex to her."

A.C. and R.C., E.C.'s parents, testified that defendant saw E.C. at least once a week and would often take her places alone. R.C. recalled E.C. acting upset on one or two occasions after going someplace with defendant.

Defendant testified he is 46 years old and works as a general contractor. He lived in Bloomington next door to E.C. and would often go places with various members of her family. Defendant took E.C. to fairs or events around central Illinois but denied ever doing "anything of a sexual nature" with her. Defendant said that on one occasion he took M.C. and E.C. to Clinton Lake in Dewitt County. While he was driving, the girls started talking about training bras. Then he said M.C. exposed her breasts which he could not see from the driver's seat. Defendant became upset when the girls began talking about condoms and masturbation and told them to "shut up." When they got to the lake, defendant said E.C. was upset because she had never heard defendant yell. Defendant said he put his arms around them and said he was sorry and kissed them both on the cheek. Defendant did not offer them money but the girls took some change off the dashboard after defendant bought gas. On other occasions defendant took E.C. camping, shopping, or to a movie but he denied ever touching her sexually. Defendant stated that on Saturday, December 22, 1990, he took E.C. with him to Havana, Illinois, to submit a job estimate on a house. Defendant said he frequently goes to Furrows in Bloomington and may have taken E.C. with him but he does not specifically remember taking her there. Defendant stated he considers himself a homosexual and admitted he pleaded guilty in November 1990 to sexual abuse of a young boy.

Pursuant to the prosecution's motion, the court nol-prossed count III. The jury found defendant guilty on all remaining counts. Defendant filed a post-trial motion which the trial court denied. At the sentencing hearing, the State presented L.M., who testified that she had known defendant since 1967 when he was her next-door neighbor. In 1969 when L.M. was nine, defendant fondled her vagina with his finger. He also attempted to perform oral sex on her but she was able to get free and run home. Defendant attempted to molest her on another occasion but stopped when L.M. screamed. Defendant testified he did not remember ever meeting L.M. much less fondling her.

Defendant alleges the trial court committed reversible error by failing to conduct a hearing pursuant to section 115-10 of the Code in regard to M.C.'s statement that E.C. said defendant "took her into his house and actually did sex to her." Section 115-10 of the Code provides:

"(a) In a prosecution for a sexual act perpetrated upon a child under the age of 13, * * * the following evidence shall be admitted as an exception to the hearsay rule:

* * * * * *

(2) testimony of an out of court statement...

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