People v. Petitt

• Decision Date: 20 May 1993
• Docket Number: No. 2-91-0658,2-91-0658
• Citation: 613 N.E.2d 1358,245 Ill.App.3d 132,184 Ill.Dec. 766
• Parties: , 184 Ill.Dec. 766 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Alan PETITT, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1358

613 N.E.2d 1358

245 Ill.App.3d 132, 184 Ill.Dec. 766

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Alan PETITT, Defendant-Appellant.

No. 2-91-0658.

Appellate Court of Illinois Second District.

May 20, 1993.

Robinson & Skelnik, Elgin, Josette Skelnik, argued, Law Offices of Josette Skelnik, for Alan Petitt.

David R. Akemann, Kane County State's Atty., William L. Browers, Deputy Director, Robert J. Biderman, State's Attys. Appellate Prosecutor, Charles F. Mansfield, State's Atty. Prosecutor Office, Springfield, for People.

Justice McLAREN delivered the opinion of the court:

Defendant, Alan Petitt, was convicted of aggravated criminal sexual abuse for intentionally fondling the vaginal area of a child under age 13. (Ill.Rev.Stat.1989, ch. 38, par. 12-16(c)(1)(i).) On appeal, defendant contends that: (1) there was insufficient evidence to find him guilty of the offense beyond a reasonable doubt; (2) evidence implying inappropriate contacts with other children was improperly admitted; (3) the court erroneously prevented a clinical psychologist from testifying as an expert for the defense; and (4) he was denied the effective assistance of counsel. For the following reasons, we reverse and remand.

In February or March 1989, L.R., the victim, slept over at the home of her friend, Amber Petitt. L.R. did not recall the exact date, but thought it was a Friday evening some time prior to March 11, 1989, which was her tenth birthday. L.R., defendant, and Amber were lying on the floor of the bedroom of defendant and his wife watching television. L.R. and Amber Petitt were scratching defendant's back. L.R. was dressed for bed in a nightshirt and underpants. Defendant was wearing only gym shorts. According to L.R., Amber fell asleep and defendant rubbed L.R. between her legs, in the vaginal area and outside of her underpants, for approximately five minutes. L.R. became frightened and told defendant she wanted to wake Amber and go to bed. Defendant replied that L.R. could wake Amber but what occurred would be their secret. When L.R. informed Amber of the incident when they went upstairs to Amber's bedroom, L.R. claims that Amber advised L.R. not to worry since defendant did the same to her on a prior occasion.

L.R. informed her mother, M.R., of this incident in October 1989. At L.R.'s request, M.R. refrained from informing L.R.'s father, a Kane County sheriff's deputy. L.R. believed her father would make a police report, and she was concerned about losing Amber's friendship. Instead, M.R. set up an appointment for L.R. to speak about the incident with Peggy Malesky, a social worker at L.R.'s school. According to Malesky, L.R. described a frightening experience where a friend's father touched her leg while she rubbed his back. After the first meeting with Malesky, L.R. did not describe the incident again. L.R. and Malesky met approximately three more times and talked about reducing stress. Although L.R. never told Malesky the name of the man or her friend, Malesky learned of defendant's identity from M.R. and filed a report with the Department of Children and Family Services (DCFS).

On December 7, 1989, L.R. told her father of the incident. The following day, investigator George Hallow from DCFS, two assistant Kane County State's Attorneys, and Batavia Detective Peter Swanson arrived at L.R.'s home and interviewed L.R. about the incident. Defendant was indicted on one count of aggravated criminal sexual abuse for intentionally fondling the vaginal area of a child under age 13. (Ill.Rev.Stat.1989, ch. 38, par. 12-16(c)(1)(i).) He was found guilty of the offense following a jury trial. Defendant was sentenced to 30 months' probation, was ordered to undergo counseling, to pay L.R.'s family $980 for her counseling expenses, and to pay court costs of $91. Defendant's post-trial motion was denied, and this appeal followed.

Defendant first contends that his conviction should be reversed because the evidence failed to prove him guilty of the offense beyond a reasonable doubt. A criminal conviction in a sex offense case will not be overturned on review unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant's guilt. (People v. Schott (1991), 145 Ill.2d 188, 203, 164 Ill.Dec. 127, 582 N.E.2d 690; People v. Collins (1985), 106 Ill.2d 237, 261, 87 Ill.Dec. 910, 478 N.E.2d 267.) The conviction will not be reversed if, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Schott, 145 Ill.2d at 203, 164 Ill.Dec. 127, 582 N.E.2d 690.

To sustain its burden of proving a prima facie case of aggravated criminal sexual abuse, the State was required to prove that defendant, who was over 17 years of age, committed an act of "sexual conduct" with the victim, who was under 13 years of age. (Ill.Rev.Stat.1989, ch. 38, pars. 12-16(c)(1)(i), 12-15(2)(b).) "Sexual conduct" is defined in the Criminal Code 1961 as "any intentional or knowing touching or fondling by the victim or the accused, either directly or through clothing, of the sex organs, anus or breast of the victim or the accused, or any part of the body of a child under 13 years of age, for the purpose of sexual gratification or arousal of the victim or the accused." Ill.Rev.Stat.1989, ch. 38, par. 12-12(e).

This case was largely based on the jury's assessment of the credibility of L.R. and defendant. In addition to L.R.'s testimony about the incident, three witnesses testified for the State under section 115-10 of the Code of Criminal Procedure of 1963 concerning L.R.'s statements to them describing or complaining of the incident. (Ill.Rev.Stat.1989, ch. 38, par. 115-10.) M.R., the victim's mother, testified that in October 1989, L.R. related an incident occurring prior to L.R.'s tenth birthday on March 11, 1989, where defendant "molested" her by rubbing L.R. between her legs. M.R. stated that L.R. did use the word "molest" to describe the incident. M.R. further testified that L.R. informed Amber of the incident, and Amber replied, "he's done that to me before. Let's just go to sleep." Peggy Malesky, the social worker at the victim's school, testified that M.R. set up an appointment for L.R. to speak with Malesky about the incident. Malesky stated that on November 9, 1989, L.R. told her that while she was staying overnight at a friend's home, the father of her friend touched her "leg" while she gave him a back rub. When Malesky asked where on her leg did the father touch her, L.R. indicated it was "about mid thigh." Malesky recalled that L.R. stated the incident occurred during the summer. George Hallow, an investigator for DCFS, testified that L.R. told him she was lying on the floor in Mr. and Mrs. Petitt's bedroom with Amber Petitt, defendant, and herself. Hallow described the room, related by L.R., as containing a dismantled water bed lying on the floor, a television, end table, and light. According to L.R., as related by Hallow, the only light in the bedroom came from the living room, and the door was cracked about four or five inches. L.R. stated that she was wearing a T-shirt and underpants while she and Amber were giving defendant a back rub. According to Hallow, L.R. informed him that after Amber fell asleep defendant "took his hand and placed it between her legs and up towards her crotch and started to rub her there" for approximately five minutes. When Hallow asked L.R. exactly where defendant touched her, L.R. indicated it was in the vaginal area outside of her underpants. Shirley Robinson, the State's expert on sexual abuse syndrome, was given a hypothetical situation reflecting the scenario in the instant case. It was Robinson's opinion that the characteristics of the hypothetical girl were "not inconsistent" with a sexually abused person.

Defendant contends that L.R.'s version of the incident is so "inherently improbable" that it raises a reasonable doubt of his guilt. L.R. was confused about the time the alleged incident occurred. At trial, L.R. insisted that it was on a Friday prior to her tenth birthday on March 11, 1989. However, she informed Malesky that the event occurred during the summer. L.R. reported the incident to her mother in October 1989, allegedly after viewing a film on sexual abuse at school. However, L.R. admitted that the video was shown during the previous school year. Although Shirley Robinson, the State's expert witness on sexual abuse syndrome, testified that victims often delay reporting the abuse, defendant asserts that L.R.'s credibility was impeached by failing to offer an explanation for the eight-month delay. Defendant notes that L.R. continued to socialize with Amber at the Petitt home during this time. At trial, defendant presented evidence that L.R. had a motive to fabricate. L.R. and Amber Petitt had a falling out immediately prior to the time she first reported the incident, and L.R. wrote letters to her teacher complaining that Amber was mad at her and did not want to be her friend.

Although defendant recalls that he may have received a back rub from Amber and L.R., as this activity was common in the Petitt home, he denies that he touched L.R. improperly. L.R. stated that the water bed in the room was dismantled. To counter L.R.'s recollection of the condition of the room at the time the incident allegedly occurred, several witnesses for the defense testified that they were friends of the Petitts and visited the home often. According to these witnesses, the Petitts remodeled their bedroom during June and November 1988, and the water bed was not dismantled in March 1989 as L.R. claims. To counter L.R.'s statement that the only light in the room came from the living room since the door was cracked open four to five inches, these witnesses testified that the incident could not have occurred when the Petitts were...