People v. Learn

• Decision Date: 11 December 2009
• Docket Number: No. 2-04-1169.,2-04-1169.
• Citation: 919 N.E.2d 1042
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. James E. LEARN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

919 N.E.2d 1042

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

No. 2-04-1169.

Appellate Court of Illinois, Second District.

December 4, 2009.

December 11, 2009.

Gil M. Soffer, Allen B. Gutterman, Katten Muchin Rosenman LLP, Chicago, IL, for Appellant.

Michael J. Waller, Lake County State's Attorney, Waukegan, IL, Martin P. Moltz, Deputy Director, State's Attorneys Appellate prosecutor, Mary Beth Burns, State's Attorneys Appellate Prosecutor, Elgin, IL, for Appellee.

Justice McLAREN delivered the opinion of the court:

Defendant, James E. Learn, was convicted after a bench trial of one count of aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(1)(i) (West 2002)) and was sentenced to a term of probation and periodic imprisonment. Defendant's motion for a new trial and/or to reconsider the finding of guilt was denied. This court reversed the conviction and remanded the cause for a new trial. See People v. Learn, 371 Ill.App.3d 701 (2007). Our supreme court denied the State's petition for leave to appeal but, in the exercise of its supervisory authority, vacated our order and instructed this court to reconsider the case in light of In re Rolandis G., 232 Ill.2d 13, 327 Ill.Dec. 479, 902 N.E.2d 600 (2008). See People v. Learn, 231 Ill.2d 644, 326 Ill.Dec. 425, 899 N.E.2d 1076 (2009) (nonprecedential supervisory order on denial of petition for leave to appeal). After such reconsideration, we reverse and remand for a new trial.

In February 2004, defendant was indicted on one count of aggravated criminal sexual abuse. The alleged victim in this case was defendant's four-year-old niece, K.O. Pursuant to section 115-10 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-10 (West 2000)), the State moved to admit at trial out-of-court statements K.O. made to her father, C.O., and two police officers. Defendant filed a motion to prevent the State from introducing any of these out-of-court statements at trial, arguing that section 115-10 of the Code was unconstitutional.

The trial court, Judge Christopher Starck presiding, held hearings to determine the admissibility of the statements made to C.O. and to Detective Ginger Stokes and Officer Ray Montemayor of the Highland Park police department. C.O. testified that he changed the diaper of his infant son, C. O., Jr., at about 10:30 p.m. on December 26, 2003. K.O. was present. She usually helped by shaking talcum powder on the infant's "parts"; C.O. would then rub the powder in. On this occasion, K.O. reached out and touched C.O., Jr.'s penis with two fingers on her right hand. C.O. demonstrated K.O.'s actions, which were described for the record as "holding on [sic] his right hand with two fingers, he's wiggling —." When C.O. told her not to do that again, K.O. said, "`Why not? Jimmy does it.'" C.O. asked what she meant, and K.O. told him that "sometimes [Jimmy] would touch her hand * * * and put it on his parts, Jimmy's parts." K.O. used the word "cocita," meaning "little thing," when talking about Jimmy's private parts. C.O. spoke to K.O. "in a tranquil way, so I could obtain more information." When C.O. asked K.O. how Jimmy did that, she told him:

"`[O]ne time, he took my hand, and he has pants, with a hole in his pants. * * * He takes my hand and he puts it inside the hole that he has in his pants by one of the legs.' She says, `And my hand goes inside, and he makes me touch his part.'"

K.O. demonstrated how she touched Jimmy; as C.O. demonstrated that in court, it was described in the record as "rubbing his thigh with his right hand." C.O. asked K.O. when it happened, but, he testified, "she doesn't have the aspect of time, like what's a week, what's a day, a time limit." She told him that it happened "`the other day,'" but he did not know what day she was talking about. K.O. told him of two occasions, but he could clearly recount only one occurrence. K.O. told him:

"`I was in the basement from [sic] the house. And he puts me on top of the bed. And we cover ourselves with a blanket or something. He touches my hand. And he puts it underneath his pants.'"

She then touched "his part," describing it as "something soft." According to C.O., she repeated that story "two, three, four times that night." C.O. stopped asking questions after his mother entered the room and heard what was being discussed; however, his mother took up questioning K.O., and K.O. repeated her story to both her mother and grandmother that night.

K.O., and the rest of the family, called defendant "Jimmy." When C.O. asked why she did not say anything before, she responded that she was scared. Defendant lived in the same house as K.O.'s grandmother, who babysat K.O. almost every day while C.O. and his wife worked. Until December 26, 2003, K.O. never mentioned anything about defendant making her touch his private parts.

The trial court ruled:

"[S]hould the child testify, the time, content, and circumstances of this testimony is sufficient — would be sufficiently reliable to allow this testimony to go to the jury pursuant to Section 115-10, again, conditional upon the fact that the child does in fact testify in the case."

At a separate hearing, Detective Stokes testified that she interviewed K.O. at the police department on December 27, 2003. The interview was conducted in English, but Officer Montemayor was present in case a Spanish translator was needed. The interview was both videotaped and audiotaped. Stokes testified that she had been misinformed that K.O.'s grandfather, not her uncle, was the perpetrator. She asked K.O. if her grandfather had ever touched her inappropriately or if anybody had grabbed her hand and made her touch him in his private area, and K.O. said no. K.O. told Stokes that her cousin Kevin had shown her his "pee-pee"; when asked if anyone else had shown her his pee-pee, K.O. replied no, only Kevin. Stokes showed K.O. anatomical diagrams of both male and female forms and asked K.O. if she could identify different parts of the body. When Stokes drew a line to the penis, K.O. did not say anything.

Stokes and Montemayor interviewed K.O. again on December 30, 2003. K.O.'s mother was also present in the room, seated behind K.O. This interview was conducted in Spanish, with Montemayor translating, as K.O. told them she was more comfortable speaking Spanish. No recording, either video or audio, was made of this interview. According to Stokes, K.O. stated that, "on several occasions[,] her Uncle Jimmy had taken her hand and placed it on his thingy." Once, Jimmy placed a blanket over her and placed her hand on his "thingy." K.O. related that Jimmy would wear long pants with a hole in front and that he would place her hand inside his pants. When Stokes asked how often this happened, K.O. said that "it was every time that she went over to her Uncle Jimmy's but not to baby-sit" and that it would happen "on his bed in the basement." Stokes also specifically testified that K.O. referred to Jimmy's penis as "thingy." Stokes again showed K.O. an anatomical diagram of a male and asked her to show where her hand had been placed and what it was called; K.O. pointed to the penis and said "that's the thingy." When asked why the first interview with K.O. had been videotaped, Stokes replied, "It was at the police department and our goal is not to have a five year old testify in a trial like this." The second interview was held at the Child Advocacy Center, which did not have video equipment.

Montemayor testified that he did not translate anything during the interview on December 26. He saw no indication that K.O. had any problem understanding or communicating in English. During the December 30 interview, he translated Stokes' English questions and K.O.'s Spanish responses. K.O. said that on one occasion, Jimmy grabbed her hand and made her touch his "thingy"; according to Montemayor, K.O. used the word "tosito," the Spanish word for "thingy." The trial court ruled:

"[I]f the victim does testify the court believes that the time, content and circumstances of this testimony are sufficient, show sufficient areas of reliability and if she is subject to cross examination herself the court would allow the statements to go in * * *."

Judge John Phillips then presided over the case. Before trial, the court held a hearing to determine K.O.'s competency as a witness. K.O.'s examination was conducted with the aid of an interpreter. K.O. was able to testify about her age, the names of her parents and brother, and where she lived and went to school. She understood the difference between the truth and a lie and that she had to tell the truth in court. K.O. did not know when her birthday was or when Santa Claus brought presents. During the court's questioning, the following took place:

"THE COURT: * * * But you will tell us what's true today? You will tell us the truth?

THE WITNESS: I don't know.

THE COURT: Okay. If I ask you to tell me what's true, will you tell the truth and not a lie?

THE WITNESS: I don't know.

THE COURT: Okay. Tell me if you don't understand me.

THE INTERPRETER: Okay.

THE COURT: Have you had a problem with any words I have said to you?

THE WITNESS: No.

* * *

THE COURT: Would you do this for me: Would you raise your hand for me[?]

THE WITNESS: (Raising left hand.)

THE COURT: The other hand. And would you repeat this, would you say, I promise I will tell the truth.

THE INTERPRETER: I promise to tell the truth."

The court then found K.O. to be competent to testify, and the trial began.

K.O. testified through a Spanish/English interpreter. K.O. said that she went to her grandmother's house after school, but she did not go there anymore. Her grandmother and Aunt Minnie lived there. When asked if she knew if Minnie was married, she answered "No." She also answered "No" when asked if anyone else lived in the house and if she had any uncles. She did not remember the incident when she helped her father change her brother's...