People v. Learn, 2-04-1169.

• Decision Date: 02 March 2007
• Docket Number: No. 2-04-1169.,2-04-1169.
• Citation: 863 N.E.2d 1173
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. James E. LEARN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

863 N.E.2d 1173

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.

March 2, 2007.

Gil M. Soffer, Allen B. Gutterman, Katten, Muchin, Zavis & Rosenman, Chicago, for James Learn.

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

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, and this appeal followed. 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. The State moved to admit at trial K.O.'s out-of-court statements made to her father, C.O., and two police officers, pursuant to section 115-10 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-10 (West 2000)). 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, as he changed the diaper of his infant son, C.O., Jr., on December 26 2003, K.O. touched C.O., Jr.'s penis. 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 he [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. When C.O. asked how Jimmy did that, K.O. 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.'"

C.O. asked K.O. when it happened, but he testified that "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 only clearly recount 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."

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 indications 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 diaper. She was feeling "[a] little embarrassed" about testifying. At the State's request, the court then took a short break. After resuming, K.O. testified that, in her grandmother's house, her grandmother slept upstairs, the kitchen was downstairs, and there was a basement. She did not know who slept in the basement. The State tried to calm K.O. and reminded her that she made a promise to the judge. K.O. then testified that she had seen her Aunt Alberteeta in the basement and that Alberteeta was married to Jimmy, whom she then pointed out as defendant. She stated that Jimmy was not her uncle but that he was married to Aunt Alberteeta. She liked Alberteeta but did not like Jimmy, although she could not say why she did not like him. She went to the police station but did not answer any questions. K.O. said that she had talked to the assistant State's Attorney the day before. She stated that she was nervous and that she wanted her mother near her. The court took another recess when K.O. put her head down and began to cry. When the trial resumed, the State asked K.O. if she was feeling better, then stated that it had no more questions.

The court then ruled that the State had produced K.O. to testify, although it noted:

"[W]hen the young lady just took the stand again[,] she was still—I wouldn't say that it was sobbing, but she was—every time somebody asked her a limited...