People v. Johnson, 4–15–0004.

• Citation: 55 N.E.3d 32,403 Ill.Dec. 845
• Decision Date: 25 April 2016
• Docket Number: No. 4–15–0004.,4–15–0004.
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Jason C. JOHNSON, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

55 N.E.3d 32

403 Ill.Dec. 845

The PEOPLE of the State of Illinois, Plaintiff–Appellee

v.Jason C. JOHNSON, Defendant–Appellant.

No. 4–15–0004.

Appellate Court of Illinois, Fourth District.

April 25, 2016.

Brendan Bukalski, Johnson Law Group, LLC, Bloomington, for appellant.

Gregory A. Minger, State's Attorney, Eureka (Patrick Delfino, David J. Robinson, and Julia Kaye Wykoff, State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

Justice STEIGMANN delivered the judgment of the court, with opinion.

¶ 1 In January 2014, defendant, Jason C. Johnson, was indicted on two counts of predatory criminal sexual assault of a child (720 ILCS 5/ 11–1.40(a)(1) (West 2012)), alleging that he committed acts of sexual penetration with M.B., who was less than 13 years of age.

¶ 2 Prior to trial, the State filed a motion in limine, seeking to introduce evidence under the hearsay exception of section 115–10 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115–10 (West 2012) ). Specifically, the State sought to introduce (1) a digital video-and audio-recording of M.B.'s interview with a child-advocacy counselor, conducted when M.B. was seven years old, in which M.B. described the alleged assaults; and (2) testimony from M.B.'s mother, Shelly, about statements M.B. made to her when M.B. was six years old, describing the alleged assaults. The trial court granted the motion in a written order.

¶ 3 During defendant's May 2014 jury trial, the State introduced the hearsay evidence described above. The jury found defendant guilty on both counts. The trial court sentenced defendant to two terms of 20 years in prison, to be served consecutively.

¶ 4 Defendant appeals, raising several arguments: (1) the evidence was insufficient to prove him guilty beyond a reasonable doubt; (2) the trial court abused its discretion by admitting hearsay evidence under section 115–10 of the Code; (3) the court erred by entering an insufficiently detailed order when admitting the hearsay statements under section 115–10; (4) the court abused its discretion by admitting the recording as substantive evidence without laying a proper foundation; (5) trial counsel was ineffective for failing to object to (a) the court's insufficiently detailed order admitting evidence under section 115–10, (b) testimony that was not presented at the section 115–10 hearing, and (c) the admission of the recording as substantive evidence or to request a jury instruction prohibiting its use as substantive evidence; and (6) the court imposed an excessive sentence. We affirm.

¶ 5 I. BACKGROUND

¶ 6 In January 2014, the State charged defendant with two counts of predatory criminal sexual assault of a child. The charges alleged that between December 2011 and November 2013, defendant twice committed an act of sexual penetration with M.B.—once with his finger and once with his penis—while M.B. was less than 13 years of age and defendant was 17 years of age or older.

¶ 7 A. The State's Motions To Admit Hearsay Under Section 115–10 of the Code

¶ 8 In February 2014, the State filed two motions to admit hearsay statements pursuant to section 115–10 of the Code (id. ). The first motion sought to admit recorded statements made by M.B. during an interview with a victims' advocate, Tara Crady. The second motion sought to admit testimony by M.B.'s mother, Shelly, as to statements M.B. made to Shelly.

¶ 9 Later that month, the trial court held a hearing on the motions. Crady and Shelly testified at the hearing. In March 2014, the court filed a written order granting the State's motions. The court found that the statements at issue contained sufficient safeguards of reliability.

¶ 10 B. The Evidence Presented at Trial

¶ 11 1. The State's Evidence

¶ 12 At the May 2014 jury trial, Shelly testified that she lived with her boyfriend, Larry, and her daughter, M.B., who was born in 2006. Defendant was M.B.'s father. M.B. visited him every other weekend. In November 2013, when M.B. was six years old, M.B. told Shelly that “[D]addy likes to make sure my special spot is clean.” When Shelly asked what M.B. meant by that statement, M.B. said that defendant took off her pajamas and underwear and stuck his fingers in her “special spot.” Shelly asked if defendant ever made M.B. touch his “private area,” and M.B. responded, “No” but said that “he would wet it and stick it on her private area.”

¶ 13 Shelly immediately called her friend, whose husband was a police officer. Based on the officer's advice, Shelly took M.B. to the emergency room that night. Approximately one week later, in December 2013, Shelly took M.B. to the Illinois Children's Advocacy Center, where an examiner conducted a forensic recorded interview with M.B.

¶ 14 M.B., who was seven years old at the time of the trial, testified that defendant “licked his finger and put it in my private” while M.B. was visiting his house. M.B. was alone in her bedroom, asleep, when defendant entered and woke her up. He put his hand under the blanket that was covering M.B., and M.B. felt his finger move inside her “private.” M.B. testified further that defendant touched her in a similar way on “a lot” of occasions, but he never touched “his privates” against M.B.'s “privates.” M.B. told her mom about the touching while they were in the car.

¶ 15 Maureen Hofmann testified that she was employed as an advanced-practice nurse at the Pediatric Resource Center at the University of Illinois College of Medicine in Peoria. The trial court granted the State's request to have her tendered as an expert in the examination of children alleged to have been sexually abused. On December 4, 2013, Hofmann examined M.B. Hofmann testified that she conducted an external examination of M.B.'s genitals using a colposcope. The examination did not reveal any evidence of the abuse reported by M.B. Hofmann clarified that the results of the examination did not rule out the abuse reported by M.B., because in 95% of cases in which children report sexual abuse, their examinations do not reveal physical evidence of abuse.

¶ 16 Tara Crady testified that she worked for the Tazewell County Children's Advocacy Center. On December 3, 2013, when M.B. was seven years old, Crady interviewed M.B. about her complaints that defendant committed sexual assault. A recording of that interview was played for the jury. The State rested.

¶ 17 Defendant moved for a directed verdict, arguing that the evidence was insufficient, because it showed inconsistencies in M.B.'s statement. The trial court denied the motion.

¶ 18 2. Defendant's Evidence

¶ 19 Kara E. testified that she was defendant's sister. Kara had a six-year-old child, H.E., with whom she had visitation every other weekend. When Kara had visitation with H.E., she would arrange to meet up with defendant and M.B. Kara testified that M.B. had a normal interaction with defendant and seemed happy with him. On November 3, 2013, Kara, H.E., defendant, and M.B. were all visiting at Kara's and defendant's parents' house. H.E. and M.B. were playing in H.E.'s bedroom. When Kara went to check on them, she found them both lying in bed together naked. Kara noticed that H.E.'s “little pee pee was hard.” H.E. and M.B. told Kara that they were “just hugging and kissing.”

¶ 20 Ketra Eichelkraut testified that she was defendant's live-in girlfriend for 2 1/2 years. She described defendant as a “loving father.” On November 3, 2013, she and defendant visited defendant's parents' house, along with M.B., Kara, and H.E. Ketra left the house for a while and received a phone call from defendant telling her that “something had happened with [H.E.] and [M.B.]” When Ketra returned to defendant's parents' house, defendant was talking to M.B. “about the incident what had happened, why we don't do those things, and good touch, bad touch, things like that.” Ketra testified further that she had also talked to M.B. previously about “good touching, bad touching.”

¶ 21 Defendant testified that prior to the allegations in this case, he had visitation with his daughter every other weekend. In October or November 2013, defendant and Shelly got into an argument about visitation for M.B. Shelly was planning to move to an area that was farther away from defendant and wanted defendant to meet her halfway when transporting M.B. from visitation.

¶ 22 Defendant testified further that he never touched his daughter in a sexual way, nor did he place his finger or penis on or in her genitals. He stated that he had very little alone time with M.B. because Ketra or defendant's son were usually around.

¶ 23 The jury found defendant guilty on both counts. After an August 2014 sentencing hearing, the trial court sentenced defendant to consecutive terms of 20 years in prison.

¶ 24 II. ANALYSIS

¶ 25 Defendant argues that (1) the evidence was insufficient to prove him guilty beyond a reasonable doubt; (2) the court abused its discretion by admitting hearsay evidence under section 115–10 of the Code (725 ILCS 5/115–10 (West 2014) ); (3) the court erred by entering an insufficiently detailed order when admitting the hearsay statements under section 115–10; (4) the court abused its discretion by admitting the recording as substantive evidence; (5) trial counsel was ineffective for failing to object to (a) the court's insufficiently detailed order admitting evidence under section 115–10, (b) testimony that was not presented at the section 115–10 hearing, and (c) the admission of the recording as substantive evidence or to request a jury instruction prohibiting its use as substantive evidence; and (6) the court imposed an excessive sentence.

¶ 26 A. Sufficiency of the Evidence

¶ 27 Defendant argues that the evidence was insufficient to prove him guilty beyond a reasonable doubt. Specifically, he argues that the evidence was insufficient to prove that he committed acts of sexual penetration. We disagree.

¶ 28 “We will reject a challenge to the sufficiency of the evidence if any rational trier of fact could...