People v. Jackson

• Decision Date: 28 October 1987
• Docket Number: No. 85-2874,85-2874
• Citation: 520 N.E.2d 640,165 Ill.App.3d 665,117 Ill.Dec. 289
• Parties: , 117 Ill.Dec. 289 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. James JACKSON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 640

520 N.E.2d 640

165 Ill.App.3d 665, 117 Ill.Dec. 289

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. James JACKSON, Defendant-Appellant.

No. 85-2874.

Appellate Court of Illinois,

First District, Third Division.

Oct. 28, 1987.

Rehearing Denied Feb. 1, 1988.

James J. Doherty, Chicago (Donald S. Honchell, of counsel), for defendant-appellant.

Richard M. Daley, Chicago (Thomas V. Gainer, Jr., Sharon L. Gaull, of counsel), for plaintiff-appellee.

Justice FREEMAN delivered the opinion of the court:

Defendant James Jackson was charged by information with indecent liberties with a child (Ill.Rev.Stat.1983, ch. 38, par. 11-4(a)(3)), aggravated indecent liberties with a child based on sexual intercourse (Ill.Rev.Stat.1983, ch. 38, par. 11-4.1(b)(1)(A)), two counts of aggravated indecent liberties with a child based on deviate sexual conduct (Ill.Rev.Stat.1983, ch. 38, par. 11-4.1(b)(1)(B), (C)), aggravated incest based on sexual intercourse (Ill.Rev.Stat.1983, ch. 38, par. 11-10(a)(1)), and two counts of aggravated incest based on deviate sexual conduct (Ill.Rev.Stat.1983, ch. 38, par. 11-10(a)(2)). After a jury trial, defendant was convicted of aggravated indecent liberties with a child based on sexual intercourse, aggravated indecent liberties with a child based on deviate sexual conduct, aggravated incest based on sexual intercourse, and aggravated incest based on deviate sexual conduct. The jury acquitted him of indecent liberties with a child. The trial court sentenced defendant to 24 years' imprisonment in the Illinois Department of Corrections.

Defendant appeals and raises the following contentions: (1) the State failed to prove the corpus delicti of aggravated indecent liberties and aggravated incest based on sexual intercourse; (2) the State failed to prove aggravated indecent liberties and aggravated incest based on deviate sexual conduct since it failed to prove "an act of sexual gratification"; (3) the prosecutor's comment during closing argument that the complaining witness had been found competent to testify denied defendant his right to a fair evaluation of the witness' credibility; (4) the State improperly questioned witnesses at trial regarding details of the complainant's reports of the alleged offenses; (5) defendant was denied his right to choose to be sentenced for the offenses based on sexual intercourse according to the law in effect at the time of sentencing; and (6) defendant's sentence exceeds the maximum permissible under the law for the Class 2 felony of aggravated incest.

For the reasons stated below, we affirm the judgment of the circuit court.

Before trial, a hearing was conducted upon defendant's motion to determine whether the 7-year-old complainant was competent to testify at trial. After a hearing, the court initially found that she was not competent to testify at trial. Upon the State's request for a rehearing on the matter, complainant again was questioned, and the court found that she was competent to testify at trial.

At trial, complainant testified that she recalled going to the hospital during the prior December, before Christmas, for the reason that "James did something to" her. In open court she identified defendant as the "James" she was speaking of. She stated that during the prior summer defendant was married to her mother and lived in the same house with them. At the time of the alleged incident, it was hot outside and complainant was wearing pants and a short-sleeved blouse. She was playing hide-and-seek with her friends down the street from her house. She said that her mother also was there. Complainant then went home to use the washroom. While she was using the washroom, "James bust into the washroom" and licked her while her pants and underpants were pulled down around her knees. Complainant used a female doll to indicate that James had licked her in the vaginal area.

Complainant stated that defendant then "dragged [her] into the kitchen" by pulling her arm. Defendant pulled down his own pants and underpants and then those of complainant. Defendant then laid complainant on the kitchen floor and laid on top of her. Complainant stated that defendant then "got back up on me because he told me he was going to whip me." Complainant stated that when defendant laid on top of her, he "punched" her. Complainant was asked to demonstrate the act using male and female dolls. The record indicates that complainant made an "up and down motion with the male doll." Defendant then got up and told complainant to go back outside. Complainant went outside and returned to the area where her mother and friends were. When asked if she told her mother what happened, complainant stated that she did not, since she was scared at the time.

While staying at her grandmother's house some time later, complainant told her grandmother of the incident. Complainant testified that at the time she told her grandmother, it was still hot outside. Later she admitted that she did not know when she told her grandmother. Complainant stated that after she told her grandmother, her mother came over to the grandmother's house. Complainant then told her mother what happened and her mother called the police.

Complainant's mother and a policeman then took complainant to the hospital. Complainant stated that she told the policeman what happened. She recalled seeing a doctor at the hospital and speaking with him. Her mother told the doctor what happened to her. Complainant testified that she stayed in the hospital overnight, and that she was able to return home before Christmas. On cross-examination, complainant stated that the doctor had removed toilet paper from her vagina. Complainant denied putting the paper there.

Complainant's grandmother, Rosalie, testified that complainant came to visit her at her home on West Ohio Street in mid-December 1984, when the Chicago public school teachers were on strike. Rosalie stated that complainant stayed with her from Wednesday to Sunday. Some time prior to Sunday, complainant complained to her grandmother that she had bumps on her vaginal area. Rosalie examined complainant and noticed an odor. She testified that she was surprised that a 7-year-old child would have such an odor. Rosalie asked complainant what was wrong, and complainant told her grandmother that "James took her out [of] the bathroom and put her in the kitchen and he had her, put her [sic] thing in here." Rosalie stated that complainant had never told her anything like that before.

On Sunday morning, after Rosalie's daughter, Annette, returned home, Rosalie told her what had happened. Annette then went to get complainant's mother, Deloris. Rosalie stated that, although Deloris lived nearby, she did not call Deloris before Sunday since she did not have a telephone, and she was unable to walk to Deloris' house since she had been ill. Further, Annette, who lived with Rosalie, had been away from home until some time on Saturday. When Deloris arrived at Rosalie's house, she talked with complainant, examined her, and then called police. The police arrived, spoke with Deloris and complainant, and then took Deloris and the child to the hospital.

Complainant's mother, Deloris, testified that she married defendant in March 1983, and that defendant was living with her and her children, including complainant, on North Avers Street in June 1984. Deloris stated that around December 12, 1984, complainant visited her natural father for a couple of days before going to her grandmother's house for about four days. Complainant remained at her grandmother's house until Sunday, when her aunt [Annette] arrived at Deloris' apartment, spoke with her, and accompanied Deloris back to the grandmother's home. Before leaving with Annette, Deloris told defendant, who remained at the apartment, that "if he had done anything to my baby he was taking his ass to jail."

When she arrived at the grandmother's home, Deloris took complainant into the washroom and asked her what was wrong and what James had done to her. Complainant responded that he had pushed on her in the bathroom, licked her, and then dragged her into the kitchen. The State asked Deloris if complainant had told Deloris where defendant licked complainant. Complainant had said only that she was sitting on the toilet and defendant licked her. Complainant then told Deloris that defendant dragged her into the kitchen and laid her on the floor and stuck his thing in her. The State asked Deloris if she asked complainant what she meant. Deloris said "no." The prosecutor asked if complainant had ever before used the word "thing" when referring to a man. Deloris responded negatively. Deloris stated that she asked complainant again what happened and that she repeated the same account. Deloris then called the police. Meanwhile, defendant arrived at the grandmother's house and said, "[H]ere we go with this shit again." Two police cars arrived, and the police officers asked defendant to come out of the house. Other officers took Deloris and complainant to Cook County Hospital, where doctors examined complainant in the presence of Deloris.

Chicago police officer James Peck testified that he responded to a radio assignment to meet a sexual assault victim on Ohio Street at about 10:30 a.m. on December 16, 1984. When he arrived at the location, he saw police officer Mazzera and defendant walking toward a squad car parked in front of the house. Peck spoke to Mazzera, and the two officers then handcuffed defendant and placed him in the first squad car. Mazzera took defendant to the 11th district police station. Peck approached and spoke with Deloris, who was on the porch. Peck then took Deloris and complainant to Cook County Hospital.

While at the hospital, in the presence of the doctor and Deloris, Peck asked complainant what had happened. Complainant stated that while she was in the bathroom James came into the bathroom and licked her in the area of...