People v. Ostrowski
| Decision Date | 18 August 2009 |
| Docket Number | No. 2-07-1095.,2-07-1095. |
| Citation | 914 N.E.2d 558 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. James M. OSTROWSKI, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
James K. Leven, Attorney At Law, Chicago, IL, for Appellant.
John A. Barsanti, Kane County State's Attorney, St. Charles, IL, Lawrence M. Bauer, Deputy Director, State's Attorney Appellate prosecutor, Cynthia N. Schneider, State's Attorney Appellate Prosecutor, Elgin, IL, for Appellee.
Defendant, James M. Ostrowski, was convicted after a bench trial of one count of aggravated criminal sexual abuse (720 ILCS 5/12-16(b) (West 2006)) and one count of resisting a peace officer (720 ILCS 5/31-1(a) (West 2006)) and sentenced to 36 months' probation. On appeal, defendant argues that the State failed to prove him guilty beyond a reasonable doubt on both counts. We reverse the aggravated-criminal-sexual-abuse conviction and affirm the resisting-a-peace-officer conviction.
On August 9, 2006, defendant was indicted with eight counts of aggravated criminal sexual abuse (720 ILCS 5/12-16 (West 2006)) and one count of resisting a peace officer (720 ILCS 5/31-1(a) (West 2006)) after an incident that occurred on July 29, 2006, at the Sugar Grove Corn Boil Festival. The indictment alleged that defendant kissed his four-year-old granddaughter, L.R., on the lips for the purpose of sexual gratification or arousal. The matter proceeded to a bench trial on February 7, 2007. The following facts are derived from the evidence adduced at trial.
L.R., age five at the time of trial, took the stand but was unable to answer many questions, causing the trial court to find her incompetent to testify. Theresa R., L.R.'s mother and defendant's daughter, testified next. Theresa resided in Sugar Grove with her husband and two daughters. In late May 2006, she asked defendant to live with her and help her with L.R. because she was on bed rest due to a high risk pregnancy. Defendant cooked for L.R. and helped her with daily tasks, such as getting dressed. He also helped take care of the home. Theresa observed defendant's relationship with L.R. and found that they got along very well. L.R. followed defendant around everywhere and enjoyed defendant's company. L.R. was affectionate with defendant and kissed him only on the lips. Theresa testified:
"Q. Was [L.R.] affectionate towards your father?
A. Yes.
Q. Can you describe what you mean by that?
A. She would, without question, give him a hug, give him a kiss.
Q. When she kissed him, did she kiss him on the lips?
A. That is how my daughter kisses everybody, at least immediate family. That is the only people she does kiss. She knows she's not to kiss anyone else outside of who she knows and who we know.
Q. So when I asked the question about kissing her grandfather, that would always be on the lips?
A. Absolutely. Just as she would kiss me, just as she would kiss her father, that's just what she knows."
Theresa acknowledged that defendant was an alcoholic and she told him he was not allowed to drink while with L.R. He followed that rule at all times, except when he was with L.R. at the Sugar Grove Corn Boil in late July 2006. The Sugar Grove Corn Boil took place a few blocks from their home. Defendant walked there with L.R., who was in her toy Jeep, to watch the fireworks display. They left the home around 8:30 p.m. Theresa next saw L.R. at 10 p.m. when police took her to L.R. Theresa testified that when she saw L.R. that night she was "doing very well."
Margaret King testified next. On July 29, 2006, Mrs. King arrived at the Sugar Grove Corn Boil around 5 p.m. She and her husband set up their lawn chairs close to where the bands were playing on a temporary stage. She testified that she was "not a great judge of distance" and that their chairs were "maybe 100 feet, 150 feet" from the stage. She reiterated that she was "not great on distance." After counsel provided Mrs. King with a visual marker in the courtroom, counsel noted that she was 50 or 60 feet away. Around 9:30 p.m. the fireworks display began, and it ended around 9:50 p.m. After the fireworks ended, she saw defendant and L.R., if the visual marker in the courtroom was 50 or 60 feet away, approximately 30 feet in front of her. Lawn chairs and people were between Mrs. King and defendant but she had a clear view of him. Her husband, William King, was not with her at the time. Defendant was wearing jeans and no shirt. Defendant appeared intoxicated, had lost his ability to stand, and was lying down. L.R. was rolling on defendant, and at times, he was rolling on her. She testified that "they were at one point kissing." Defendant attempted to stand at times but was unsuccessful. She saw defendant "stagger and [she] saw him fall, and [she] saw him try to get up and be unsuccessful." This went on for about 10 minutes. Mrs. King then saw defendant kiss L.R. on her lips while they were lying next to each other. Mrs. King specifically testified:
"Q. And do you remember the relationship, between the man and the woman — or, I'm sorry, the man and the girl at that point in time? Were they sitting, standing, one on top of the other?
A. They were laying [sic] next to each other.
Q. They were laying [sic] next to each other at that point in time. And you said that the man initiated the kiss. Could you describe for the Court the kiss that you saw?
A. It lasted probably 4 to 5 seconds, and I wasn't close enough to — you know, I wasn't right there, but it lasted for 4 to 5 seconds and they were, you know, appeared to be —
Q. The man had his lips on the young girl's lips for 4 to 5 seconds?
A. Girl's lips.
Q. Were the lips just together and no movement, or was there any movement? A. I would say a little movement."
Next, Mrs. King testified that she left the scene to get her husband, who was a Corn Boil committeeman, and to have him inform security. She was away for approximately two minutes. When she returned with her husband, there were two police officers observing the situation. Mrs. King looked back toward defendant and L.R. and saw defendant kiss L.R. again. It was another four-to five-second kiss. She specifically testified:
"Q. Describe for the Court what you saw at that point in time.
A. I saw the man kissing her again.
Q. Describe the kiss or those kisses. Was it more than one or just one kiss, if you can remember at that point?
A. I would say one.
Q. And how long would you say that kiss lasted?
A. Again maybe 4 to 5 seconds.
Q. And you described the earlier kiss. Was this kiss different?
A. Similar.
Q. Similar?
A. Very similar."
Within "less than a minute," the police then went and handcuffed defendant. The police had to help defendant stand up to handcuff him. When asked to clarify how many kisses she observed upon returning with her husband, Mrs. King testified:
"To be perfectly honest, I was so relieved that the police were there, I just couldn't even watch anymore, so I watched quickly and then it was upsetting."
When asked what position she saw defendant and L.R. in during the second kiss, Mrs. King testified that "they were laying [sic] next to each other." On cross-examination, Mrs. King explained that when she returned, she watched defendant and L.R. for maybe 30 seconds then turned away. She was not sure whether defendant was in handcuffs when she turned back. She admitted that there were a lot of people around; some people were standing up, and some were seated in chairs.
William King testified as follows. Mr. King worked all day at the Corn Boil and stated that the fireworks display started at 9:30 p.m. and lasted for 18 to 22 minutes. Mr. King was inside the school during the fireworks display. After the fireworks display, Mr. King found his wife and sat with her for awhile. Mr. King testified that they were seated approximately 30 feet from the stage. At one point, his wife pointed at defendant, who appeared to be intoxicated. Mr. King specifically testified:
"Q. Is there anything that your wife did, without getting into a conversation? A. Yes. She pointed at someone.
Q. And where did she point?
A. It would be about — we're looking at the stage, it would be on our left-hand side at not a 90-degree angle, but like a 70-degree angle, about 15 feet away."
Q. And did you look over there?
A. Yes, I did.
Q. What did you see?
A. I saw a gentleman who appeared to be intoxicated."
Mr. King observed that defendant was walking around the area, and L.R. was just sitting there. He testified:
Mr. King figured that the officers would handle the situation, so he sat back down and continued watching defendant with L.R. Defendant crawled on top of L.R., who was lying flat on the ground, and kissed her on the lips. Mr. King specifically testified:
"Q. When you say he was on top of her, was he over her, was he actually touching her? What was —
A. He was pressing down on her.
Q. And where was — now, you said that you saw him kissing her?
A. Correct.
Q. Where was he kissing her?
A. On her mouth.
* * *
Q. Was his — when his mouth was on the little girl's mouth, did you see his mouth doing anything?
A. I saw his mouth open.
Q. And his mouth was open when it was on the little girl's lips?
A. Correct.
Q. And did you see his mouth moving or doing anything?
A. No Q. Now, you said that the little girl was laying [sic] on her back and he was on top of her. Where was his like — his body in relationship to her body?
[Objection overruled.]
A. He was — best way I can describe it, he was astraddle, on top of her like.
Q. Okay. So where were his legs in relationship to her?
A. The one leg of the little girl was on the outside of his legs. His...
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