People v. Moss

• Decision Date: 28 June 1993
• Docket Number: No. 1-91-2371,1-91-2371
• Citation: People v. Moss, 630 N.E.2d 850, 260 Ill.App.3d 272, 196 Ill.Dec. 685 (Ill. App. 1993)
• Parties: , 196 Ill.Dec. 685 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Carl MOSS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 850

630 N.E.2d 850

260 Ill.App.3d 272, 196 Ill.Dec. 685

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v.Carl MOSS, Defendant-Appellant.

No. 1-91-2371.

Appellate Court of Illinois First District, First Division.

June 28, 1993.

Rehearing Denied March 31, 1994.

Michael J. Pelletier, Deputy Defender, Office of the State Appellate Defender(Gordon H. Berry, Asst. Appellate Defender, of counsel), for defendant-appellant.

Jack O'Malley, State's Atty., County of Cook(Renee Goldfarb, Kenneth T. McCurry, Kathleen Van Kampen and Kevin J. Golden, Asst. State's Attys., of counsel), for plaintiff-appellee.

Justice CAMPBELLdelivered the opinion of the court:

Following a jury trial, defendant, Carl Moss, was convicted of two counts of aggravated criminal sexual assault and three counts of aggravated criminal sexual abuse, and sentenced to an extended prison term of sixty years.On appeal, defendant contends that: (1)the trial court erred in admitting hearsay statements at trial pursuant to Section 115-10 of the Criminal Procedure (Ill.Rev.Stat.1989, ch. 38 par. 115-10); (2)he was prejudiced by the prosecutor's comments during rebuttal closing argument; and (3)the trial court erred in relying on an aggravating factor in sentencing him to an extended term of imprisonment.For the following reasons, we affirm the judgment of the trial court.

The following facts are relevant to this appeal.Prior to trial, the State filed a motion to present hearsay evidence pursuant to Section 115-10 of the Code of Criminal Procedure.(Ill.Rev.Stat.1989, ch. 38, par. 115-10.)The motion informed defendant of the State's intent to offer out-of-court statements of complainant, J.Z., made to Ula Jankiewicz, J.Z.'s best friend, Dr. Sharon Ahart, the physician who examined J.Z. following the incident and Iza Z., J.Z.'s mother.At a pre-trial hearing, the State indicated that these three witnesses would testify at trial as to what J.Z. told them regarding defendant's actions toward her.Defense counsel argued that the State's witnesses were required to testify at the hearing in order for the court to determine the time, content and circumstances of J.Z.'s statements.The trial court disagreed with defense counsel's contention, and instructed the prosecutor to explain in detail what J.Z. said to each witness.After the prosecutor detailed the content of the testimony of the three witnesses, the trial court granted the State's motion.

At trial, Iza Z. testified that she was born in Poland and came to the United States with her husband and J.Z. in 1985.After Iza separated from her husband, she moved to an apartment in Berwyn, Illinois with J.Z., who was then eight-years-old.The lease for her apartment began on August 1, 1989, but Iza and J.Z. began moving things into the apartment during the last few days of July 1989.On July 31, 1989, J.Z. met Ted Moss, defendant's seven-year-old son, and went to his apartment to play with him.Defendant and Ted lived directly across the alley from Iza and J.Z.For the next four days, J.Z. went over to defendant's apartment every day.During that time, defendant called Iza to ask if he could take J.Z. to various places with Ted, including to a soccer game, to the local swimming pool, and to the beach.

On August 4, 1989, Iza had a barbecue party and invited her friends and family.Iza's best friend, Grace Jankiewicz and Grace's daughter, Ula, came to the party.Later, Grace told Iza that Ula had told Grace that something wrong was going on between J.Z. and defendant.After hearing that, Iza attempted to talk to J.Z. about it, but J.Z. would not talk to Iza.

The next day, Iza tried to talk to J.Z. again.At that time, J.Z. went to Iza's bedroom and barricaded the door on the inside with a file cabinet.J.Z. then tried to go out the window to defendant's apartment.J.Z. was crying and begging Iza to let her go.On the following day, Iza heard J.Z. tell Ula and Grace that defendant told J.Z. that J.Z. could tell her friend Ula a few things, but that if she told an adult, defendant would go to jail.

On August 7, 1989, Iza took J.Z. to the Berwyn police station and told police officers what she had heard from Ula and Grace about what J.Z. had told them.Iza then took J.Z. to Dr. Sharon Ahart at Mt. Sinai Hospital for an examination.Iza also took J.Z. to a counselor, whom J.Z. was still seeing at the time of trial.Iza testified that she discovered J.Z. "touching her bottom" on two occasions during this time.

On cross-examination, Iza stated she told Officer Domkowski that she learned from Grace that defendant had rubbed cream on J.Z.'s legs.Iza also told Officer Domkowski that defendant took J.Z. to a public pool, pulled his pants down while he was under water, and told J.Z. to look at him.Iza further told the Officer that J.Z. went to defendant's house and took a shower with defendant, and that defendant washed J.Z.After Iza told the officer all of these things she had heard, Officer Domkowski asked J.Z. if these things had happened and J.Z. said "yes."Iza acknowledged that she is presently divorced, and that she filed for divorce in February 1989.Iza's husband, Romuald, had been physically violent towards her, and had brought guns into the house after Iza filed for an order of protection.After Romuald left, J.Z. would call him up because she wanted to see him, but Romuald did not visit J.Z. very often.

J.Z. testified that she is nine years old and in the fourth grade.J.Z. was eight years old when she moved to Berwyn.She became friends with Ted Moss, who was seven years old and lived next door.J.Z. went over to Ted's house four days in a row.J.Z. met defendant on the first day she went to Ted's house.J.Z. asked defendant where he worked, and defendant told her that he was a doctor.Defendant showed J.Z. a stethoscope, and touched her chest with it.Defendant then placed the stethoscope inside his pants above his penis and told J.Z. to listen.

J.Z. went back to defendant's house the next day, and defendant took J.Z., Ted and another friend of Ted's to Maple Pool in Berwyn.Defendant told J.Z. to go under the water and she did.Defendant then pulled his shorts down and J.Z. saw defendant's penis.She then came back up out of the water.J.Z. did not know where Ted and his friend were during this incident.

The next day, defendant took J.Z. and Ted to the beach.When they returned from the beach to defendant's house, defendant and J.Z. went into defendant's bedroom.Defendant and J.Z. took off their clothes and took a shower.Defendant washed J.Z.'s rear, vagina, and back with his hand.Defendant ran his finger in and out of J.Z.'s vagina.Defendant asked J.Z. to wash his penis with her hand and she did so.After the shower, defendant and J.Z. went into defendant's bedroom and over to the bed.Defendant positioned J.Z. on the bed, lying on her back with her legs apart, and felt her in between her legs.Defendant knelt between her legs and rubbed his penis up and down on her vagina.J.Z. stated that "this stuff came out a little hole," and defendant put it on her belly.

J.Z. stated that defendant did the same thing to her the next day.One time J.Z. licked defendant's penis and it tasted salty.Defendant told J.Z. that what they were doing was a secret and that she was not to tell anyone or he would go to jail.Defendant told J.Z. to put her finger in and out of her vagina to make it bigger so his penis would fit into it.J.Z. stated that she did this.J.Z. further stated that defendant put his tongue on her vagina and into her mouth and told her it was called a "french kiss."On one occasion, defendant put cream around her vaginal area.

One day defendant took J.Z. to a U-Haul trailer rental outlet.Defendant loaded some furniture into the trailer and drove to a man's house.While they were in the car, defendant rubbed J.Z.'s vagina.

J.Z. told her secret to her best friend Ula on the night of the barbecue at J.Z.'s house.After J.Z. told Ula, she told her mother some of what had happened.Later, when J.Z.'s mother tried to talk to J.Z. about the secret, J.Z. went into her mother's bedroom and blocked the door with a file cabinet.J.Z. then tried to go out of the window to defendant's house.J.Z. was afraid to talk to her mother because she thought it was her own fault and that her mother would belt her.J.Z. was embarrassed to tell her mother what happened.After that, Iza took J.Z. to the police station, and then to a female doctor.J.Z. told the doctor only some of the things that defendant did to her.

On cross-examination, J.Z. stated that she remembered going to the police station with her mother and talking to Officer Domkowski, but did not remember what her mother said to the officer.J.Z. stated, "I don't remember what anybody said back then because it's like--like you are asking me questions what I did when I was a baby or something."The parties stipulated to J.Z.'s in-court identification of defendant.

Ula Jankiewicz testified on behalf of the State that she was at a barbecue at J.Z.'s house a couple of summers ago when J.Z. told Ula a secret.At the barbecue, a boy named Jason, who lived next door to J.Z. told Ula that J.Z. had a secret with defendant, but that she would not tell Jason the secret.Jason asked Ula if she would ask J.Z. about her secret with defendant, and Ula agreed.Ula, Jason and a girl named Monica then asked J.Z. if she had a secret with defendant.J.Z. responded, "Yes, I do," but when they asked her to tell the secret, J.Z. stated, "No, I can't."Later, Ula went for a walk with J.Z. and Ula told J.Z. a secret.After a little while, J.Z. told Ula that defendant had taught her how to kiss and french kiss.J.Z. said that defendant said he was a doctor, and told J.Z. that she had a rash on her private part, and that he rubbed some cream on it.J.Z. also told Ula that when J.Z. and defendant would go driving, she would sit in the...