People v. Moore

• Citation: 250 Ill.App.3d 906,620 N.E.2d 583,189 Ill.Dec. 615
• Decision Date: 16 September 1993
• Docket Number: No. 4-92-1005,4-92-1005
• Parties: , 189 Ill.Dec. 615 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Stefan A. MOORE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 583

620 N.E.2d 583

250 Ill.App.3d 906, 189 Ill.Dec. 615

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Stefan A. MOORE, Defendant-Appellant.

No. 4-92-1005.

Appellate Court of Illinois Fourth District.

Sept. 16, 1993.

Daniel D. Yuhas, Deputy Defender, Office of the State Appellate Defender, Springfield, Arden J. Lang, Asst. Defender, for defendant-appellant.

Thomas J. Difanis, State's Atty., Urbana, Norbert J. Goetten, Director, State's Attys. Appellate Prosecutor, Springfield, Robert J. Biderman, Deputy Director, Beth McGann, Staff Atty., for plaintiff-appellee.

Justice LUND delivered the opinion of the court:

Defendant Stefan Moore was charged in the circuit court of Champaign County with one count of aggravated criminal sexual abuse (Ill.Rev.Stat.1991, ch. 38, par. 12-16(c)(1)(i)) and three counts of aggravated criminal sexual assault (Ill.Rev.Stat.1991, ch. 38, par. 12-14(b)(1)). The charges stemmed from acts allegedly committed by defendant upon his niece, L.M., with whose family he was living when the alleged incidents occurred.

Defendant was accused of placing his penis in L.M.'s vagina during the summer of 1990 or 1991 and placing it on her vagina during that same time period. He was also accused of placing his finger in L.M.'s vagina on January 30, 1992, and of intentionally fondling her vagina for his own sexual arousal on that date.

On September 15, 1992, the case proceeded to a jury trial in absentia. Prior to the trial, the court held a hearing under section 115-10 of the Code of Criminal Procedure of 1963 (Code) (Ill.Rev.Stat.1991, ch. 38, par. 115-10) to determine whether certain statements by L.M. would be admissible at trial as an exception to the hearsay rule. At that hearing, the following testimony was given.

Tracy Jobe, a police officer and investigator for the City of Champaign, testified that she interviewed seven-year-old L.M. on February 1, 1992, at her home. Jobe has approximately six years' experience interviewing children. She was accompanied by William Gordon, an investigator with the Illinois Department of Children and Family Services (DCFS). When asked what had happened with defendant, L.M. said that he had put his finger in her private part. She had been asleep in her bedroom and defendant came into her room. When asked to show where her private part was, L.M. pointed to her vaginal area. When she told defendant to stop, he did and left the room. When asked whether this had happened before, L.M. said it happened one to two years ago. In trying to establish a time frame, Jobe asked if it was during school or when school was out. L.M. remembered it happened during the time her brother was in summer school. In talking to L.M.'s parents, Jobe was able to establish when the incident happened. Jobe then asked what happened, and L.M. said they were in the living room watching television when defendant grabbed her hand and took her into her brother J.M.'s room, put her on the mattress, took her clothes off, took his pants and underpants off, and put his private part on her private part. L.M. said defendant stopped when he felt white goo coming out of him. Defendant then wiped L.M. and himself with a washcloth and left the room. L.M. told her brother about this and he was supposed to tell their stepmother, but he forgot.

Jobe testified L.M.'s demeanor during the interview was very calm. Toward the middle of the interview she became restless, toying with her clothing, and appeared to be anxious to end the interview. Jobe further testified L.M. answered her questions in a direct manner and that she did not suggest any answers to L.M. The only time L.M. was inconsistent was when Jobe asked her how long the incident in 1990 or 1991 lasted. L.M. said one hour and then changed it to a minute.

William Gordon, a child welfare specialist for DCFS, testified he accompanied Jobe to the interview with L.M. At that time he was a child protective investigator for DCFS. He and Jobe used open-ended questions, and no answers were suggested to L.M. The only inconsistency was in estimating the length of time of the 1990 incident. When L.M. said the earlier incident lasted one hour, he pointed out that two comedy shows last one hour. She then realized how long one hour was and stated it lasted a minute.

Debbie Moore, stepmother of L.M. and J.M., testified that defendant lived with the family from February through August 1990, and from December 1991 to late January 1992. During the 1990 visit, defendant shared a bedroom with J.M. She and her husband both worked. One condition of defendant's continued residence with them was that he would baby-sit for the children while the parents were at work. The morning of January 31, 1992, they were busy with breakfast and getting ready for school and day care, and she did not have an opportunity to talk to L.M. or J.M. Defendant was sleeping on the couch, where he usually slept. When she arrived home from work that evening, J.M. and L.M. were waiting for her. L.M. was sitting on the floor, looking downcast. J.M. told her that defendant had been in L.M.'s room and touched her, and that it had happened the night before. She did not ask L.M. any other questions, but told her she would talk to her father about it. It was apparent to her that L.M. was looking to J.M. to tell her what happened. When her husband and defendant arrived home at 3:30 a.m., she told him about it. He and defendant had been drinking, and he confronted defendant and a fight ensued. Police were called by neighbors because of the noise, and a female officer talked with L.M. The officers suggested that L.M. be examined by a doctor, which was done later that day. She told L.M. to simply tell Jobe and Gordon the truth; she never asked L.M. for details.

Moore testified that in 1990 her husband and defendant had a disagreement over rules for the children while defendant was staying with them. Defendant left something on the stove and it burned, engulfing the house in smoke. After that, they told defendant to leave.

Nine-year-old J.M. testified that the first incident L.M. relayed to him was when defendant took their clothes off and she was trying to get him off her but could not. (His testimony was confusing on this incident. The first time he was asked about it, it appeared he was describing the incident as related to him by L.M. However, when he again described the incident in his later testimony, he appeared to describe what he himself had seen.) He stated the next day L.M. told him what had happened and J.M. told her he had seen it happen. She begged him not to tell and he said he would let it pass, but, if it ever happened again and she did not tell their parents, he would. They both thought if they told the first time they would be in trouble. He testified he was in a hallway when he saw defendant and L.M. on the couch. They were facing away from him and could not see him. L.M. had her eyes closed and was trying to get defendant off her. L.M. told him defendant was on top of her and had his hands between her legs. She did not tell him that defendant had touched her with any other part of his body. The second time, L.M. told him that defendant had come into her room and was feeling her private parts. He told their stepmother when she was tucking them into bed.

With respect to the first incident occurring in 1990, the trial court ruled there was no statement by L.M. to J.M. The only testimony before the court was that L.M. had discussed the incident with J.M. and she begged him not to tell. The court ruled the State could elicit from J.M. the fact that L.M. begged him not to tell, as that would be proper to explain why J.M. did not report this incident earlier. However, the State was not allowed to elicit details of anything L.M. told J.M. the day following the incident.

As to the statement made to Moore on January 31, 1992, the court found there was no basis under section 115-10 of the Code to admit J.M.'s statement to Moore about what L.M. had told him. However the court ruled the State could elicit testimony that J.M. had told Moore something about what he claimed L.M. had told him, in order to explain to the jury why Moore took the steps she did.

The court found L.M.'s statement to J.M. on January 31, 1992, about what had happened the day before to be admissible, based upon the following factors: (1) the statement was made less than 24 hours after the incident; (2) it was made to a confidant; (3) it contained a description of sexual conduct not normally familiar to a child unless exposed to it; (4) L.M. used terminology a child would be expected to use; (5) there was no apparent motive to accuse defendant falsely, and he was a family member which would have made it more difficult to report; and (6) L.M. expected to get into trouble but, despite this, made the statement.

The court ruled the statement made by L.M. to Officer Jobe concerning the events of January 30, 1992, was admissible, based upon the facts that (1) the time lapse was less than 48 hours, (2) no leading questions were asked, (3) L.M. used terminology consistent with her age, (4) she was discussing sexual conduct that a child her age would not be familiar with unless exposed to it, and (5) there was no apparent motive to lie.

The court found the statement made by L.M. to Officer Jobe concerning the alleged events of August 1990 admissible. The court found that although there was a much more significant time lapse than with the other statements, this was partially explained by J.M.'s testimony that L.M. begged him not to tell anyone what had happened because she thought she would get in trouble. The court did not consider the fact that J.M. said he saw the incident L.M. told him about. The court found reliability in the terminology used by L.M., the fact that she was reluctant to discuss it, and that she made an attempt to be accurate in terms of changing her mind about the length of...