People v. Pollard

• Decision Date: 12 March 1992
• Docket Number: No. 3-90-0371,3-90-0371
• Citation: 225 Ill.App.3d 970,589 N.E.2d 175
• Parties: , 168 Ill.Dec. 61 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Alphonso POLLARD, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 175

589 N.E.2d 175

225 Ill.App.3d 970, 168 Ill.Dec. 61

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Alphonso POLLARD, Defendant-Appellant.

No. 3-90-0371.

Appellate Court of Illinois Third District.

March 12, 1992.

Kenneth D. Brown, Office of State Appellate Defender, Ottawa, Mike Brandt, Trial Counsel, Peoria, for Alphonso Pollard.

Rita Kennedy Mertel, States' Attys. Appellate Prosecutor, Ottawa, Kevin W. Lyons, State's Atty., Peoria, for the People.

Justice BARRY delivered the Opinion of the court.

A jury convicted the defendant, Alphonso Pollard, of aggravated criminal sexual assault (Ill.Rev.Stat.1989, ch. 38, par. 12-14(b)(1)). The trial court sentenced him to a 24-year prison term. The defendant appeals.

The record shows that the victim, S.Y., was ten years old at the time of the offense.. The defendant, S.Y.'s mother's boyfriend, was living with them. According to S.Y., during a weekday in July of 1989 she was showering when the defendant entered the shower, picked her up, and stuck his "private parts" in her. Later that same day, the defendant was playing with S.Y. and her sister. He tied their hands with curtain cord. When S.Y. began hopping upstairs, the defendant picked her up, took her into her mother's room, pulled down S.Y.'s pants and again "stuck his private parts in [hers]." S.Y. testified that her mother was at work when these incidents occurred.

S.Y. further testified that the defendant had vaginally penetrated her on four previous occasions. On three of the four occasions, S.Y.'s mother was at work. On the other occasion, her mother was asleep on the couch. According to S.Y., she first told her mother about the abuse after the defendant moved out of the house in July of 1989. "About three or four days" later, in September of 1989, S.Y. told Phyliss Dewitt after Dewitt showed a movie at school about good and bad touches. S.Y. told Dewitt the defendant had touched her in the shower. About a week later, S.Y. told Kelly Gott, a D.C.F.S. worker, that the defendant had touched her in the shower. S.Y. later went to the hospital and told Dr. Jack Whitney about the incident in the shower. At the hospital, S.Y. also told police officer Robin Turner what the defendant had done to her. A few days later, S.Y. told police officer Victor Puscas what the defendant had done to her on the weekday in July.

S.Y. testified that she did not tell anyone about the incidents sooner because she was embarrassed and because she was afraid of the defendant. She had heard the defendant tell her mother that when he was a gang member, he had cut off women's breasts and private parts, that he had once killed a man, and that he used to put firecrackers in cats' butts. S.Y. further testified that she had seen the defendant throw things at her mother and that he had sprained her mother's arm and bruised her face.

D.C.F.S. investigator Kelly Gott testified that on September 21, 1989, S.Y. told her that in July of 1989 the defendant had vaginally penetrated her in the shower and again later that same day when he tied her hands with curtain rope.

Police Officer Robin Turner testified that on September 23, 1989, S.Y. told him that the defendant had "stuck his penis in her" about two and one-half months before.

Dr. Jack Whitney testified that he examined S.Y. at the hospital on September 23, 1989. She complained that the defendant had been sexually assaulting her over a one-year period. The most recent assault had occurred when the defendant had tied her hands with socks and then penetrated her vagina with his penis. Dr. Whitney also recalled S.Y. telling him about the defendant sexually assaulting her in the shower. Dr. Whitney's examination revealed that S.Y.'s hymen had been perforated and she had a gaping vulva. In Whitney's opinion, repeated penetration of the vaginal opening during sexual intercourse would produce the gaping of the vulva.

S.Y.'s mother, S.A., testified that the defendant began living with her in January of 1987. After S.A. moved in September of 1988, the defendant continued to live with her "on and off." S.A. described the beginning of her relationship with the defendant as good, but noted that toward the end they engaged in physical fighting in front of S.Y. S.A. obtained an order of protection against the defendant in April of 1989. The following week the couple got back together. S.A. stated that the defendant then continued to live with her in May, June, and July of 1989. S.A. made a final break with the defendant in the middle of July 1989, after he threatened to kill S.A. and her children while he recklessly drove them around in a car.

S.A. further testified that S.Y. told her about the shower incident about one or two months after the defendant had moved out of the house. S.Y. also told S.A. that the defendant had sexually assaulted her again, shortly after she got out of the shower. S.A. did not call the police, but told S.Y. to tell a teacher at school about this. S.A. also testified that S.Y.'s behavior had changed after the defendant had lived with them for about a year and a half. S.Y. no longer cared about her personal appearance, did not want to bathe or go to bed, and sometimes wore extra clothes to bed even when it was not cold. Her grades dropped and she began eating more.

Phyliss Dewitt testified that following the showing of a film about child sexual abuse to S.Y.'s class on September 20, 1989, S.Y. told her that the defendant had fondled S.Y. when she was in the shower. A hearing was held prior to trial at which Dewitt was qualified to testify as an expert in the field of child sexual abuse accommodation syndrome, a form of post-traumatic stress disorder. At trial she testified that she had interviewed S.Y. and her mother, and that she had reviewed police and medical reports. In Dewitt's opinion, S.Y. exhibited behavior consistent with a child who had been sexually abused.

The defendant's sister, Freddie Pollard, testified that the defendant lived with her continuously from the beginning of June 1989 until September 1989.

Shorron Moore, the defendant's cousin, testified that in July of 1989, the defendant came to his house every morning between 9 and 9:30. He and the defendant spent the days doing things together. In May, the defendant lived around the corner from Moore with a woman named Angela Randall.

Anthony Pollard, the defendant's brother, testified that S.A. telephoned him after the defendant was arrested in November of 1989. She told Pollard that she knew S.Y. lied a lot and disliked the defendant.

The defendant testified and denied ever sexually assaulting S.Y. He asserted that after S.A. obtained an order of protection against him in April, he moved in with a former girlfriend, Angela Randall, until the first week in June. He then moved in with his sister and stayed with her until his arrest in September. He denied babysitting for S.Y. during May, June, or July. He stated that he spent nearly every day of those months with his cousin, Shorron. During July, the defendant worked afternoons and evenings at a health care center. Also during July, he saw S.A. two or three times a week and occasionally had sex and stayed overnight with her.

The State introduced evidence of the defendant's prior convictions for burglary, possession of cocaine, and attempt obstructing justice. The jury subsequently found the defendant guilty of aggravated criminal sexual assault.

On appeal, the defendant first argues that his conviction for aggravated criminal sexual assault should be reversed because the victim and her mother testified about other crimes committed by the defendant. Specifically, he complains that the evidence that the victim heard the defendant tell her mother that as a gang member he mutilated women, abused cats, and killed a man was irrelevant. He asserts that the failure to give a limiting instruction concerning how this other crimes evidence was to be used exacerbated the error. He also argues that the victim's mother's testimony about his attempt to kill her family was improper.

Both an objection at trial and a post-trial motion are necessary to preserve an issue for review. (People v. Enoch (1988), 122 Ill.2d 176, 119 Ill.Dec. 265, 522 N.E.2d 1124.) An objection to evidence on specific grounds waives all other grounds. (People v. Steidl (1991), 142 Ill.2d 204, 154 Ill.Dec. 616, 568 N.E.2d 837.) When a defendant cross-examines a witness about allegedly improper testimony, he waives any alleged error in the testimony. (People v. Bost (5th Dist., 1980), 80 Ill.App.3d 933, 36 Ill.Dec. 314, 400 N.E.2d 734.) A defendant waives any issue as to the impropriety of evidence if he procures, invites, or acquiesces in the admission of evidence. (People v. Daniels (2d Dist., 1987), 164 Ill.App.3d 1055, 116 Ill.Dec. 47, 518 N.E.2d 669.) A complaint about improper jury instructions must be raised in the trial court or it is waived. People v. Regains (3d Dist., 1989), 187 Ill.App.3d 713, 135 Ill.Dec. 522, 543 N.E.2d 1090. In the instant case, the defendant failed to object to any of S.Y.'s testimony he now complains of on appeal. Furthermore, when he did move to strike testimony about prior incidents involving S.Y. and incidents involving the defendant's alleged violence toward S.A., the defendant did not object to the complained-of testimony.

We also note that some of the complained-of testimony was the result of the cross-examination of S.Y. when she testified three times that she did not report the sexual assaults because she was afraid of the defendant. Thus, the defendant invited her redirect testimony explaining her fear of the defendant.

The defendant also did not tender a jury instruction limiting the use the jury should make of this evidence. The general instruction on the limited use of other crimes evidence was amended with the defendant's approval to apply only to evidence of other crimes committed against the victim, S.Y. The...