People v. Nicholl

• Decision Date: 21 March 1991
• Docket Number: No. 2-89-0278,2-89-0278
• Citation: 569 N.E.2d 604,155 Ill.Dec. 423,210 Ill.App.3d 1001
• Parties: , 155 Ill.Dec. 423 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Donald NICHOLL, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 604

569 N.E.2d 604

210 Ill.App.3d 1001, 155 Ill.Dec. 423

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Donald NICHOLL, Defendant-Appellant.

No. 2-89-0278.

Appellate Court of Illinois,

Second District.

March 21, 1991.

Rehearing Denied April 25, 1991.

G. Joseph Weller, Deputy Defender, Patrick M. Carmody (argued), Office of the State Appellate Defender, Elgin, for Donald Nicholl.

Michael P. Coghlan, DeKalb County State's Atty., Sycamore, William L. Browers, Deputy Director, Lawrence M. Bauer (argued), State's Attys. Appellate Prosecutors, Elgin, for the People.

Justice McLAREN delivered the opinion of the court:

Defendant, Donald Nicholl, appeals from his conviction of aggravated criminal sexual abuse. Defendant contends: (1) the court erred in admitting the testimony of two witnesses not listed in discovery; (2) the court erred by not allowing evidence of a subsequent false accusation and evidence of the possibility of a different perpetrator of the abuse; (3) he was not proved guilty beyond a reasonable doubt; and (4) the court erred by ordering the defendant to pay the victim's mother's attorney fees in connection with a petition to change the visitation rights of her ex-husband, who lived with defendant. We affirm in part, reverse in part, and remand.

Defendant was charged with aggravated criminal sexual abuse. (Ill.Rev.Stat.1987, ch. 38, par. 12-16(c)(1).) The information alleged that "defendant intentionally touched the breasts of the victim for the purpose of sexual gratification." A hearing was held pursuant to which the victim, five-year-old J.C., was found to be competent to testify at trial.

J.C. lived with his mother, Julie, and her husband, Doug. The defendant lived with J.C.'s father and Julie's ex-husband, Edward. The alleged incident of abuse occurred on July 11, 1987, during a period of scheduled visitation as set forth in Julie's and Edward's divorce decree.

At trial, J.C. testified that defendant "sucked to my boobies." J.C. stated he was watching Donald Duck on television when the incident occurred. J.C. also stated defendant touched and sucked J.C.'s penis. Using anatomically correct dolls, J.C. demonstrated the actions which he testified to. J.C. stated the only thing his mother told him was to tell the truth. J.C. also denied that Doug told him what to say to the judge.

On cross-examination, J.C. testified Edward was not his father. J.C. stated the alleged incident of abuse took place while he was watching television and Edward and Erica, Edward's girlfriend, were sleeping. J.C. further testified the incident began at 12:27 and concluded at 9:30. J.C. stated Edward did not witness the incident. J.C. also stated the incident occurred on a Tuesday. (July 11, 1987, was a Saturday.)

J.C. further testified he had lunch and dinner at his mother's house on the day of the incident. J.C. also stated he went swimming at his grandmother's house on that day. J.C. stated that he was at his grandmother's "sometime around daytime or nighttime."

J.C. testified he had never met defense counsel before although it is apparent from the record he had. Initially, J.C. denied talking to the police about the incident but later admitted he had. J.C. acknowledged he told the police the incident occurred during the day and defendant did not have any clothes on at the time. J.C. also remembered telling the police Edward witnessed the incident and Edward killed defendant. J.C. admitted this did not actually happen.

The State then called Pat Graham-Toohey as a witness. Defendant objected on the basis Graham-Toohey was not included as a witness in responses to discovery. The court allowed defendant to speak to Graham-Toohey over the lunch break. The court then permitted Graham-Toohey to testify as a corroborative complaint witness.

Graham-Toohey testified she has been employed by the Family Advocate for 11 years. She stated she interviewed J.C. on four separate occasions. During each interview, J.C. told Graham-Toohey someone had sucked his "boobies" and played with his penis. On cross-examination Graham-Toohey acknowledged J.C. never indicated when these alleged incidents occurred.

Ronald Kestner, a special agent with the Illinois State Police, also testified he had interviewed J.C. Kestner stated J.C. told him someone had sucked hard on his nipples and penis. Kestner also testified J.C. indicated the incident occurred while he was in his father's bed watching television.

Sidella Hughes, an investigator with the Department of Children and Family Services (DCFS), testified she interviewed J.C. on July 14, 1987. Hughes stated J.C. told her someone sucked his "boobies" and hair. In a subsequent interview 90 minutes later, J.C. stated someone had also sucked his penis. Hughes further testified J.C. told her Edward witnessed this incident.

Carl Pool, a DCFS employee, was also a witness the State failed to list in discovery but called at trial. Defendant was given an opportunity to speak with Pool prior to his testimony. Pool testified he also participated in the investigation of the alleged abuse. J.C. told Pool a man had sucked his "boobies" and penis. Pool also testified J.C. indicated Edward had observed the sexual activity, slammed defendant's head against the wall, and kicked defendant out of the house.

Doug, J.C.'s mother's husband, testified that when J.C. returned home from Edward's, J.C. complained his legs and "boobies" hurt. J.C. seemed most concerned with his legs. While bathing the next morning, J.C. again complained his "boobies" hurt. At that time, Doug noticed J.C.'s nipples were skinned and red. J.C. then told Doug defendant had sucked his "boobies." After lunch, Doug suggested to J.C.'s mother that DCFS should be contacted.

Julie, J.C.'s mother, testified that, on July 10, 1987, Edward, Julie's ex-husband, picked up J.C. for a weekend visit. Edward brought J.C. home Sunday evening at approximately 8:30. Julie stated J.C. was very tired, and she carried him into the house. J.C. sat down on the floor and showed her some bruises on his legs. Julie testified J.C. told her Edward had kicked him in the legs. J.C. also briefly complained his chest hurt. Later that night, J.C. had fallen asleep in the car while returning home from getting ice cream. Julie carried J.C. into the house and undressed him to get him ready for bed. She left the lights off so as not to wake J.C. Julie dressed J.C. in his pajamas. J.C. woke up and asked Julie to read him a story, which she did.

The following morning, Julie got J.C. ready for a bath. She noticed J.C.'s nipples were swollen, red, bruised and had dried blood on them. J.C. told Julie his nipples hurt and defendant had sucked on them. Julie testified she discussed this allegation with Doug and then went to work. She returned home at lunch and called the child abuse hotline. The next day a representative of DCFS returned her call, and she met with Sidella Hughes at Doug's grandmother's home. Later, she went to a DCFS office so J.C.'s nipples could be photographed. Julie testified J.C. then spoke to Agent Kestner and Dr. Baptist. Both of these individuals told Julie they thought it was a case of sexual abuse.

Julie denied causing the injuries to J.C.'s nipples. Julie also testified she did not tell J.C. what to say in court but only to tell the truth.

On cross-examination, Julie acknowledged she waited six hours after J.C. had told her about the alleged abuse to call DCFS. Julie admitted J.C. spent the morning alone with Doug. Julie also testified she had an appointment with her doctor that evening and, while she brought J.C. with her to that appointment, she did not ask her doctor to examine J.C.'s nipples.

Julie testified Edward and defendant lived together prior to her marriage to Edward, and she did not like the arrangement. Julie acknowledged she had made two previous complaints to DCFS concerning abuse. She also complained to the court previously about Edward's violation of a court order. Julie denied these complaints were an attempt to gain an advantage in limiting Edward's visitation rights.

Dr. Erroll Baptist testified he examined J.C. on July 14, 1987. Dr. Baptist stated he was aware there was a possibility of abuse prior to conducting the examination. Julie and Dr. Baptist's nurse were present during the examination. Dr. Baptist testified J.C.'s breasts were enlarged, swollen and discolored. A further examination with a magnifying glass disclosed dried blood in the cracks of J.C.'s nipples. Dr. Baptist estimated the injury to J.C.'s breasts had not occurred within 24 hours of the examination, but it had occurred within four or five days of the exam. J.C. told Dr. Baptist defendant had touched J.C. on the penis and "boobies." Dr. Baptist opined J.C. had been sexually abused. Dr. Baptist was shown an inner tube used by J.C. while swimming, and Dr. Baptist stated it was very unlikely the tube caused J.C.'s injuries.

On cross-examination, Dr. Baptist stated the injuries could have been inflicted within 36 to 48 hours of his examination. Dr. Baptist also stated J.C. would have been in pain at the moment the injury occurred or shortly thereafter.

The State then rested its case.

Erica Erickson testified for defendant. She stated she was living with Edward and defendant during the relevant time period. She testified she returned from work at approximately 10:45 p.m. on July 10, 1987, and J.C., Edward and defendant were all there. J.C. was asleep in Edward's bedroom. On Saturday, July 11, Erica made J.C. breakfast, and J.C. watched television in the living room. Erica and Edward played with J.C. that morning. J.C. did not tell Erica his chest or anything else hurt. Erica testified defendant returned from work at approximately 1:30 and took a shower. Edward's brother Bob arrived at approximately 2:15, and Erica left for work one hour later. Erica testified she did not observe any sexual contact between J.C. and def...