People v. Kitch

• Decision Date: 21 January 2011
• Docket Number: No. 108769.,108769.
• Citation: 347 Ill.Dec. 655,942 N.E.2d 1235,239 Ill.2d 452
• Parties: The PEOPLE of The State of Illinois, Appellee,v.Richard D. KITCH, Appellant.
• Court: Illinois Supreme Court

239 Ill.2d 452

942 N.E.2d 1235

347 Ill.Dec. 655

The PEOPLE of The State of Illinois, Appellee,

v.Richard D. KITCH, Appellant.

No. 108769.

Supreme Court of Illinois.

Jan. 21, 2011.

Michael J. Pelletier, State appellate Defender, Gary R. Peterson, Deputy Def., Nancy L. Vincent, Asst. Appellate Def. of the Office of State Appellate Def., of Springfield, for appellant.Lisa Madigan, Atty. Gen., of Springfield and Teena Griffin, State's Atty., of Rushville (Michael A. Scodro, Solicitor Gen., and Michael M. Glick and Erin M. O'Connell, Asst. Attorney's Gen., of Chicago, of counsel), for the People.

[347 Ill.Dec. 657 , 239 Ill.2d 455] OPINION

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

Following a jury trial, defendant Richard Kitch was convicted of nine counts of predatory criminal sexual assault of a child and one count of aggravated criminal sexual abuse. The circuit court of Schuyler County sentenced him to nine consecutive natural life prison terms for predatory criminal sexual assault of a child, and a concurrent 14–year extended term for aggravated criminal sexual abuse. The appellate court ordered the natural life prison terms to be served concurrently rather than consecutively, and affirmed in all other respects. 392 Ill.App.3d 108, 333 Ill.Dec. 508, 915 N.E.2d 29. For the reasons set forth below, we affirm the judgment of the appellate court.

I. BACKGROUND

In February 2005, the State charged defendant with multiple counts of sexual assault and abuse allegedly perpetrated against his stepdaughter, K.J.K., who was born January 8, 1991, and his stepson, M.J.B., who was born May 5, 1994. Specifically, the State charged defendant with predatory criminal sexual assault of a child (720 ILCS 5/12–14.1(a)(1) (West 2004)), alleging that, between March 2000 and

[347 Ill.Dec. 658 , 942 N.E.2d 1238]

March 2003, defendant (a) placed his penis in the mouth of K.J.K. (counts I and II); (b) allowed his penis to have contact with K.J.K.'s vaginal area (count III); (c) placed his penis in K.J.K.'s vagina (counts IV, V, and VI); and (d) placed his penis in the mouth of M.J.B. (counts IX, X, and XI). The State also charged defendant with aggravated criminal sexual abuse (720 ILCS 5/12–16(c)(1)(i) (West 2004)), alleging that in November 2002 he knowingly touched M.J.B.'s penis with his fingers for the purpose of sexual arousal (counts VII and VIII).¹

Pursuant to section 115–10 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115–10 (West 2004)), the State filed a pretrial notice of intent to introduce hearsay statements of K.J.K. and M.J.B. describing the alleged abuse. Defendant objected. At a hearing, Schuyler County Sheriff Don Schieferdecker (Don) and one of his employees, Anna Marie Schieferdecker (Anna Marie), testified to the circumstances of their interviews of the children and introduced the children's written statements, which Anna Marie and Don had transcribed. The State indicated K.J.K. and M.J.B. would testify at trial. The circuit court found the hearsay statements admissible under the statute, on the condition that the children testified.

Defendant fled the jurisdiction prior to trial and was subsequently tried in absentia in October 2005. The evidence at trial included testimony from K.J.K. and M.J.B.; their mother, Susan; Anna Marie and Don; an obstetric gynecologist; and two forensic scientists.

Dr. Victoria Nichols–Johnson, an obstetric gynecologist, testified she examined K.J.K. on July 3, 2003. K.J.K. told her that her “mom's husband” had touched her breasts and vagina. When Dr. Nichols–Johnson visually examined K.J.K.'s genital area, she observed “changes in the hymenal ring” that suggested possible penetration by an external object. She encountered little resistance when inserting her fingers or a speculum into K.J.K.'s vagina, and opined that “something had been there before.” According to Dr. Nichols–Johnson, it was “highly likely that [K.J.K.] had been abused.”

Susan testified that she and her children moved in with defendant on December 16, 1999, and she married defendant on February 29, 2000. Thereafter, Susan noticed defendant “started to favor” K.J.K. and became less friendly toward M.J.B. Defendant also began disciplining the children. He spanked them with a leather strap and would “scream at them.”

Susan testified further that defendant often hugged and kissed K.J.K., and would grab her buttocks and breasts. When K.J.K. was 11 years old, defendant tattooed her bare buttock while she was partially clothed and lying on the dining room table. When K.J.K. was 12, Susan observed defendant rubbing lotion on K.J.K.'s breasts. On one occasion, Susan saw defendant coming out of a shower he had been sharing with K.J.K. When Susan confronted him, he said he had been helping K.J.K. wash her hair.

In March 2003 Susan moved out of defendant's residence. As she and the children drove away, she assured K.J.K. and M.J.B. they would not have to live with defendant again. K.J.K. and M.J.B. then told her defendant had sexually abused them. Susan reported the allegations to the sheriff. In June 2003, Susan provided the sheriff with the comforter that K.J.K. had on her bed when they lived with defendant. Susan testified she and defendant

[347 Ill.Dec. 659 , 942 N.E.2d 1239]

never engaged in any sexual activity on the comforter.

Anna Marie testified she interviewed K.J.K. in March 2003 at the sheriff's department. Anna Marie wrote down the questions she asked K.J.K., followed by K.J.K.'s answers. The statement was admitted into evidence without objection.

Anna Marie testified regarding K.J.K.'s statement. In March 2000 K.J.K. was home alone with defendant when he came into her room. He asked her if she wanted to have sex and she said no. K.J.K. tried to leave, but defendant blocked the doorway, pushed her down on the floor, and forced his penis into her mouth. Later that day defendant returned to K.J.K.'s room and again forced his penis into her mouth. When he was finished, he told her that if she told anyone, he would kill her. Anna Marie asked K.J.K. if this happened again, and she replied: “Anytime my mom was gone, in the shower, or sleeping late.”

In the summer of 2001, K.J.K. was home alone with defendant. K.J.K. had blocked the entrance to her bedroom, but defendant forced his way in, pushed her down on the bed, and put his penis between her legs, rubbing his penis on her vaginal area. Defendant repeated this act almost every time K.J.K. was home alone with him until June 2002, when defendant began inserting his penis inside her vagina. After June 2002 defendant had sexual intercourse with K.J.K. about once a week.

K.J.K. testified consistently with her statement to Anna Marie regarding defendant forcing his penis into her mouth, between her legs, and into her vagina.² K.J.K. also explained that a couple of months after defendant began putting his penis between her legs, he started putting his fingers in her vagina, telling her he was doing it so his penis would eventually “fit.” K.J.K. also described an instance when defendant's ejaculate dripped onto her comforter, and defendant told her to wipe it up with some paper towels. K.J.K. identified the comforter as the one Susan had testified she gave to the sheriff. K.J.K. also testified about defendant rubbing cocoa butter on her breasts, showering with her, and putting a tattoo on her right buttock.

Don, the Schuyler County sheriff, testified that in March 2003 he interviewed M.J.B. at the sheriff's office. Don wrote out the questions he asked M.J.B., followed by M.J.B.'s answers. The statement was admitted into evidence without objection.

Don testified regarding M.J.B.'s statement. Sometime after Thanksgiving 2002, defendant came into M.J.B.'s room, grabbed M.J.B.'s penis, and began rubbing it for about 30 seconds. In January 2003, defendant took M.J.B. into the bathroom, put M.J.B.'s hand on defendant's penis, and told M.J.B. to move his hand up and down. M.J.B. did this for about one minute, and defendant ejaculated. Later that same month, defendant took M.J.B. into the bathroom, put his penis in M.J.B.'s mouth, and told him to suck it. M.J.B. told the sheriff that, subsequently, defendant forced him to perform this same oral act an additional three or four times. Don also testified about an April 2003 written

[347 Ill.Dec. 660 , 942 N.E.2d 1240]

statement by K.J.K. which described how defendant's ejaculate came to be on her comforter.

M.J.B. testified, in relevant part, that when he was about eight years old defendant touched M.J.B.'s penis in M.J.B.'s bedroom. Other incidents occurred in the bathroom. On one occasion, defendant forced M.J.B. to touch defendant's penis, and on three or four occasions defendant put his penis in M.J.B.'s mouth.

Forensic scientists at the Illinois State Police Forensic Science Laboratory testified that the deoxyribonucleic acid (DNA) profile identified in a semen stain on K.J.K.'s comforter matched defendant's DNA profile.

The jury convicted defendant on all 10 counts. Defendant filed a motion for a new trial, which the circuit court denied. In November 2005 the court sentenced defendant in absentia³ to nine natural life prison terms for predatory criminal sexual assault of a child, each to run consecutively, and a 14–year extended-term sentence for aggravated criminal sexual abuse, to run concurrently.

The appellate court affirmed defendant's convictions but modified his natural life prison sentences from consecutive to concurrent terms. 392 Ill.App.3d 108, 333 Ill.Dec. 508, 915 N.E.2d 29. The court also granted the State its statutory assessment of $50 against defendant as costs of the appeal. We allowed defendant's petition for leave to appeal. Ill. S.Ct. R. 315 (eff. Feb.26, 2010).

II. ANALYSIS

A. Direct Testimony of K.J.K. and M.J.B.

Defendant first argues K.J.K. and M.J.B. did not testify in enough detail to have “appeared” for cross-examination within the meaning of the...