People v. Kennebrew

• Decision Date: 30 June 2014
• Docket Number: No. 2–12–1169.,2–12–1169.
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Reginald KENNEBREW, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

13 N.E.3d 808

The PEOPLE of the State of Illinois, Plaintiff–Appellee

v.Reginald KENNEBREW, Defendant–Appellant.

No. 2–12–1169.

Appellate Court of Illinois, Second District.

June 30, 2014.

Thomas A. Lilien and Jessica Wynne Arizo, both of State Appellate Defender's Office, of Elgin, for appellant.

Joseph P. Bruscato, State's Attorney, of Rockford (Lawrence M. Bauer and Scott Jacobson, both of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

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

¶ 1 Defendant, Reginald Kennebrew, appeals from the first-stage dismissal of his petition for postconviction relief. In 2009, he was found guilty of two counts of predatory criminal sexual assault of a child and one count of aggravated criminal sexual abuse, although one of the counts of predatory criminal sexual assault was later reduced to aggravated criminal sexual abuse, which is a lesser included offense of predatory criminal sexual assault. People v. Kennebrew, 2013 IL 113998, ¶ 25, 371 Ill.Dec. 297, 990 N.E.2d 197. He filed a pro se postconviction petition, arguing in part that his appellate counsel was ineffective. The trial court dismissed his petition, finding it to be frivolous and patently without merit for failing to raise the gist of a constitutional claim. For the reasons set forth herein, we affirm.

¶ 2 I. BACKGROUND

¶ 3 The State filed a three-count indictment against defendant on August 27, 2008, charging him with three felony counts. Count I was for predatory criminal sexual assault of a child (720 ILCS 5/12–14.1(a)(1) (West 2008)) for penis-to-anus contact; count II was for predatory criminal sexual assault of a child for hand-to-vagina contact; and count III was for aggravated criminal sexual abuse (720 ILCS 5/12–16(c)(1)(i) (West 2008)) for touching the victim's buttocks with his hand for purposes of sexual gratification or arousal. All three counts were for alleged conduct committed against the complainant, D.C., a girl under the age of 13 when the alleged offenses took place. The jury found him guilty on all three counts.

¶ 4 The following proceedings in the trial court are relevant to defendant's postconviction petition. The State moved before trial to admit prior statements that D.C. made concerning the sexual acts that defendant allegedly performed upon her: statements to her stepmother, Cierra; statements to her cousin, Aaliyah; and statements during a videotaped interview at Carrie Lynn Children's Center (Children's Center). The trial court held that the prior statements were admissible, on the condition that D.C. would testify to the material subject matter of the statements at trial.

¶ 5 At trial, D.C. testified that she had just turned nine years old. When the State asked whether “anybody ever touched [her] on any part of [her] body that no one should touch,” she responded “no.” She also responded negatively when asked if she ever told anyone that someone had touched her where nobody should be touched. The State asked D.C. whether she remembered going to the Children's Center about one year earlier, and she said yes. She remembered talking to a lady there, but she said that she did not remember whether she told the lady that someone touched her body inappropriately. When asked more specific questions about her visit to the Children's Center, she recalled more facts. She remembered being taken into a room and asked questions by a lady there. Although she generally did not remember what they talked about, she remembered that the lady asked what parts of her body no one should touch. She remembered using a picture of a girl to identify the parts of a girl's body by circling them, and she likewise remembered using a picture of a boy for the same purpose. She remembered the lady asking her if anyone touched her in the places she identified, but she did not remember how she responded.

¶ 6 D.C. testified that she did tell Aaliyah that someone touched her someplace that no one should touch, although she remembered few details of what she told her. She did not remember telling her that her stepdad touched her between her legs with his “privacy.” She did not remember Aaliyah asking her if it hurt and telling Aaliyah “sometimes.”

¶ 7 D.C. further testified that defendant, who was her mother's long-term, live-in boyfriend, would apply lotion to her after she took a shower. She said that he would put lotion on her “everywhere,” later specifying that everywhere included her stomach, legs, butt, and outside her “private.” However, after D.C. failed to remember what she said about defendant on various other occasions, despite recalling many facts around those occasions, the court granted the State's motion to treat D.C. as a hostile witness. The court noted that D.C. would put her head down, take long pauses before answering questions, and answer questions reluctantly. When the State proceeded to examine D.C. as a hostile witness, with leading questions, she mostly answered “no” when asked if she remembered telling anyone about the alleged acts of sexual misconduct. She did, however, recall that she told Cierra that one time defendant rubbed his “thing” across her bottom while she was on her stomach. When asked again about talking to the lady at the Children's Center, she remembered going but did not remember anything she told the lady about defendant touching her inappropriately. After the State finished questioning D.C., the defense declined to cross-examine her.

¶ 8 The State played for the jury a videotaped interview between Marisol Tischman and D.C. at the Children's Center on January 16, 2008. D.C. and Tischman talked about the following at the interview. D.C. told Tischman that, on more than one occasion, defendant put his thumbs inside her “loosey”—her word for her vagina—and that he rubbed her buttocks and put his “thing,” i.e., penis, inside her butt. Although she never saw his “ thing,” she described it as “wet and mushy.” She could not recall how many times he put his “thing” in her butt, but it happened many times. Defendant would do this on the bed in D.C.'s mother's bedroom. Her mother was not usually home when this occurred, because she worked nights. Defendant would apply lotion to D.C. after she showered, having her lie naked on her back and stomach on the bed. He put his thumb inside her “loosey” when she was on her back, and he put his “thing” inside her butt when she would lie on her stomach. He would just “stick it in there,” and it felt “not good.” D.C. said that he wore a T-shirt and underwear and that he would kneel by the bed. He would take his “thing” out of his underwear, although she never saw it. D.C.'s younger sister, Heaven, was often playing on the bed when this happened. D.C. was seven years old and in second grade when defendant would touch her in these ways. Defendant did not touch her after she turned eight on December 20, 2007, and he no longer lived with her at her mother's house at the time of the interview. D.C. said that she told two people that defendant had touched her in places where she should not be touched: Cierra and Aaliyah.

¶ 9 Aaliyah, 13 years old at the time of trial, testified as follows. She last saw D.C. around Christmas 2007. Once when D.C. stayed overnight, she asked Aaliyah whether Aaliyah's dad touched her. Aaliyah said no, and D.C. responded that defendant touched her. Aaliyah asked how, and D.C. said that he used his “private part” to touch her “down there,” in “her privacy.” She said that it sometimes hurt. The next day Aaliyah told one of her sisters what D.C. told her.

¶ 10 Cierra testified to the following. She was married to D.C.'s biological father, Marlowe. During Christmas break in 2007, extending to 2008, D.C. came to spend time with her and Marlowe in Aurora, Illinois. During D.C.'s visit, she spent the night at Cierra's sister Tasha's house. Shortly after D.C. went back home, Aaliyah, who was Tasha's daughter, told Cierra what D.C. had told her. Upon hearing what D.C. had told Aaliyah, Cierra called Marlowe, and he came home from work immediately. She and Marlowe decided to drive to see D.C. in Rockford to confirm whether what D.C. had told Aaliyah was true. They arranged to take D.C. and her siblings to Pizza Hut. At Pizza Hut, Cierra took D.C. to a separate table to ask whether anyone had ever touched her inappropriately. D.C. initially said no; but after some more talking, she said that she had told Aaliyah that defendant had touched her in inappropriate places. To demonstrate where defendant had touched her, she “touch[ed] her vagina area,” and she told Cierra that he would rub his penis up and down her bottom.

¶ 11 Lori Thompson, a pediatric nurse practitioner who volunteered at the Children's Center, performed a physical examination of D.C. and testified to the following. Her examination revealed a cleft in the hymenal tissue and redness just outside the hymenal area, which were findings consistent with sexual abuse.

¶ 12 Defendant testified on his own behalf, denying that he put his fingers in D.C.'s vagina or his penis in her anus. He did admit to rubbing lotion on her butt, but he denied that he did so for sexual gratification; he did it because she complained of dry and itchy skin.

¶ 13 During deliberations, the jury sent a note to the court, asking, “We, the jury, would like to view the video,” in reference to the taped interview between Tischman and D.C. Defendant objected, arguing that the jury had already seen the video and that sending the video to the jury room was tantamount to sending D.C. and Tischman to the jury deliberations. The court overruled the objection, understanding defendant's position but likening the video to a transcript and believing that it would assist the jurors in their deliberations.

¶ 14 The jury returned a verdict of guilty on all three counts. The court sentenced defendant to consecutive terms of 15, 15, and 5 years.¹ A direct appeal followed, in which d...