People v. O.M. (In re O.M.)
| Decision Date | 11 December 2017 |
| Docket Number | NO. 4-17-0539,4-17-0539 |
| Citation | 2017 IL App (4th) 170539 -U |
| Parties | In re O.M., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. O.M., Respondent-Appellant). |
| Court | United States Appellate Court of Illinois |
NOTICE
This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from Circuit Court of Vermilion County
Honorable Craig H. DeArmond, Judge Presiding.
¶ 1 Held: (1) The trial court did not abuse its discretion by allowing the child-victim's hearsay statements to be admitted into evidence.
(2) The State's evidence was insufficient to establish respondent's guilt of criminal sexual assault (720 ILCS 5/11-1.20(a)(2) (West 2014)) as charged by the State and the matter must be remanded for sentencing on respondent's adjudication of delinquency for aggravated criminal sexual abuse, an offense for which no sentence was imposed by the trial court in the underlying proceedings.
¶ 2 In February 2017, the trial court adjudicated respondent, O.M. (born December 16, 1999), a delinquent minor, finding he committed the offenses of criminal sexual assault (720 ILCS 5/11-1.20(a)(2) (West 2014)) and aggravated criminal sexual abuse (720 ILCS 5/11-1.60(c)(2)(1) (West 2014)). The court sentenced respondent to five years' probation and he appeals, arguing (1) the court abused its discretion by allowing the admission of the child-victim's hearsay statements into evidence; (2) the State's evidence was insufficient to establish that he committed the offense of criminal sexual abuse; (3) conditions of his probation were unreasonable, unrelated to his offenses or rehabilitation, and overly broad; and (4) the court erred in the length of the probationary term it imposed. We affirm in part and vacate in part the court's judgment and remand for further proceedings with directions.
¶ 4 On October 12, 2016, the State filed a petition for adjudication of wardship, alleging respondent was a delinquent minor, in that he committed the offense of criminal sexual assault (720 ILCS 5/11-1.20(a)(2) (West 2014)) (count I). Specifically, it asserted that, on or about September 17, 2016, respondent committed an act of sexual penetration with K.B. while knowing K.B. "was unable to understand the nature of the act or was unable to give knowing consent." Later, the State amended its petition by adding a second count, alleging respondent committed the offense of aggravated criminal sexual abuse (720 ILCS 5/11-1.60(c)(2)(i) (West 2014)) (count II). It asserted that, on or about September 17, 2016, respondent, who was under the age of 17, committed an act of sexual conduct against K.B., who was under the age of nine when the offense was committed.
¶ 5 On December 16, 2016, the State filed a notice of intent to use corroborative complaint witness testimony under section 115-10 of the Code of Criminal Procedure of 1963 (Criminal Procedure Code) (725 ILCS 5/115-10 (West 2014)). On February 6, 2017, the trial court conducted both a section 115-10 hearing and the adjudicatory hearing.
¶ 6 In connection with the section 115-10 hearing, Ashley P. testified K.B. was her eight-year-old son and respondent was her nephew. On October 2, 2016, Ashley was at homewith her family and some friends. K.B. was playing with his nine-year-old stepsister, V.P., when V.P. reported that she had to talk to Ashley about "something important." V.P. then related information to Ashley that V.P. heard from K.B. When Ashley spoke with K.B., he told her "[t]hat he was touched inappropriately" by respondent. More specifically, K.B. reported that respondent "touched [K.B.'s] bad parts." Ashley testified that when K.B. talked about his "bad parts" or "bad spot" he was referring to his penis. Ashley testified K.B. also told her that respondent put his mouth on K.B.'s penis and attempted to put his penis "in [K.B.'s] butt."
¶ 7 According to Ashley, K.B. reported that the inappropriate touching occurred "once in Georgetown and once *** when they were going to [her] wedding rehearsal." She recalled that her wedding rehearsal was on Friday, September 16, 2016 at a farm in Dana, Indiana. The rehearsal dinner was to be held at the fairgrounds in Georgetown, Illinois. Following the rehearsal, Ashley's sister, Amber P., who was also respondent's mother, went to pick up pizza for the rehearsal dinner. Ashley recalled that K.B. and Amber's son C.C. went with Amber to get the pizza while other family members went to the fairgrounds to "set up" for the dinner. According to Ashley, K.B. told her that an incident of inappropriate touching occurred after the wedding rehearsal and before the rehearsal dinner when K.B. "went with [respondent] in [respondent's] car and they went behind the fairgrounds."
¶ 8 Ashley reiterated that K.B. told her respondent "touched him, his penis, his bad spot, and that [respondent] asked [K.B.] to touch [respondent], and that not to say nothing [sic]." She recalled that K.B. described that respondent touched K.B. with his mouth and tried to put his penis into K.B.'s buttocks. The following colloquy occurred between Ashley and the State:
¶ 9 Ashley testified that K.B. told her respondent offered to buy K.B. a video game or give him money if he did not tell anybody what had happened. Further, she stated that while talking about the incident, K.B. was crying, nervous, and scared that Ashley was upset with him.
¶ 10 On cross-examination, Ashley estimated she talked to K.B. by herself for a few minutes and then with her husband for 30 to 40 minutes. Further, she agreed that K.B. described "another incident" in Georgetown in a playroom at Ashley's mother's house; however, Ashley did not know when that incident occurred. She testified that she and her family lived in southern Illinois and had for some time; however, they made frequent trips to the Georgetown area. Ashley testified K.B. "didn't really seem to complain" about the visits and wanted to see his grandparents. On redirect, she testified that K.B. reported respondent put K.B.'s penis in respondent's mouth during the incident that occurred on September 16, 2016, and that respondent tried to puthis penis in K.B.'s butt during the incident at her mother's house.
¶ 11 V.P. testified K.B. was her stepbrother. She recalled playing with him at home in October 2016, when he told her something that she reported to her stepmother. V.P. testified she and K.B. were playing with Legos when K.B. stated that "he had something to tell [V.P.] that was very important." According to V.P., K.B. reported that "when he was at the wedding, that [respondent] was in the bathroom with him, and [respondent] told [K.B.] to put his private into [respondent's] butt." V.P. recalled that K.B. said the incident occurred "at the dinner." V.P. recalled talking to a police officer but did not remember previously telling the officer that the incident occurred while K.B. and respondent were in a car together.
¶ 12 Ephraim Bolin testified he was a police officer for the city of Georgetown. He stated he was "considered as an investigator" and had received interrogation and interview training, which included training on interviewing victims of sexual abuse. Bolin testified he knew that while interviewing potential sex abuse victims he was supposed to ask open-ended, non-leading questions. On October 5, 2016, Bolin interviewed K.B in an interview room at the Georgetown police department. During the interview, he asked K.B. about whether he liked respondent and K.B. stated that sometimes he did and sometimes he did not. K.B. explained that he liked playing video games and guns with respondent but did not like respondent when respondent "tried having S-E-X *** with him."
¶ 13 Bolin testified K.B. reported that, on the evening of the wedding rehearsal, he rode with Amber to Pizza Hut and then left Pizza Hut in a car, alone, with respondent. K.B. asserted respondent drove "near the fairgrounds" and tried to touch K.B.'s penis, which K.B. referred to as his "bad spot." According to Bolin, K.B. further stated that respondent "stuck his pe-nis between [K.B.'s] buttocks, and [respondent] also put his mouth on [K.B.'s] penis." Bolin testified his interview with K.B. was audio and video recorded. A disc containing the recording of Bolin's interview with K.B. was admitted into evidence at the hearing and played for the trial court.
¶ 14 On cross-examination, Bolin testified he believed K.B. was discussing only one incident with him, which occurred on the day of the rehearsal dinner on September 16, 2016. He also stated he was familiar with the locations of both the Pizza Hut and the fairgrounds and estimate that they were approximately half a mile apart. Further, he testified K.B. stated respondent parked at the fairgrounds near an area where animals were kept. Bolin stated K.B. was describing a building to the southeast of the fairgrounds banquet hall where cattle were shown and kept. He estimated that building...
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