People v. Roman, 1-91-1335

• Decision Date: 21 October 1992
• Docket Number: No. 1-91-1335,1-91-1335
• Citation: 197 Ill.Dec. 932,632 N.E.2d 1,260 Ill.App.3d 436
• Parties: , 197 Ill.Dec. 932 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Cresencio ROMAN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

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632 N.E.2d 1 260 Ill.App.3d 436, 197 Ill.Dec. 932 The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Cresencio ROMAN, Defendant-Appellant. No. 1-91-1335. Appellate Court of Illinois,
First District, Third Division. Oct. 21, 1992.

[197 Ill.Dec. 933] [260 Ill.App.3d 437]

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Jack O'Malley, State's Atty., (Renee Goldfarb, Barbara Jones, Carolyn A. Reynolds, of counsel), Chicago, for plaintiff-appellee.

Anthony Pinelli, Chicago, for defendant-appellant.

Justice RIZZI delivered the opinion of the court:

Following a jury trial, defendant, Cresencio Roman, was found guilty of aggravated criminal sexual assault. Ill.Rev.Stat.1989, ch. 38, par. 12-14(b)(1). Defendant was sentenced to a term of 15 years imprisonment in the Illinois Department of Corrections.

The issues before this court for review are (1) whether the introduction of certain hearsay testimony denied defendant a fair trial pursuant to sections 115-10(b)(2), (c) and (d) of the Code of Criminal Procedure (Ill.Rev.Stat.1989, ch. 38, pars. 115-10(b)(2), (c), (d)); (2) whether the use of anatomically correct dolls by the complainant to illustrate her testimony denied defendant a fair trial; (3) whether defendant was proved guilty of aggravated criminal sexual assault beyond a reasonable doubt; and (4) whether the trial court abused its discretion when it sentenced defendant to 15 years imprisonment in the Illinois Department of Corrections. We affirm.

Defendant was charged with aggravated criminal sexual assault in November 1989. In September and October of 1989, the complainant, M.A., was 7 years old. At that time, M.A. lived in a one-bedroom apartment with her mother, M.R., her brothers A.A. and S.A., and defendant, her stepfather. M.A. slept on the top bunk of a bunk bed, and her two brothers slept on the bottom bunk. M.R. and defendant slept together in the living room on a mattress removed from a sofa bed.

[260 Ill.App.3d 438] At defendant's trial, the State presented the testimony of M.A., M.R., A.A. and Dr. Erik Benink. M.R. testified that on October 28, 1989, she had a conversation with one of her co-workers at a Taco Bell restaurant. M.R. told the court that as a result of this conversation, she went home and asked her daughter, M.A., if anyone had ever "touched" her. M.R. testified that M.A. did not answer but lowered her head. M.R. stated that she then asked M.A. if defendant had touched her and that M.A. replied "yes." M.R. further testified that she asked M.A. where defendant had touched her and M.A. pointed to her vagina.

M.R. then took M.A. to the McNeal Clinic. M.A. was examined at the McNeal Clinic and then referred to Christ Hospital where she was examined by Dr. Erik Benink. The parties stipulated that M.A. stayed overnight at Christ Hospital, and that she was not examined by any physician other than Dr. Benink.

Dr. Benink testified that he examined M.A. in the emergency room of Christ Hospital on October 28, 1989, at 7:54 p.m. Dr. Benink told the court that upon performing a genital examination of M.A., he found no evidence of recent trauma, and no lacerations, bruises or scars. Dr. Benink stated, however, that he did find evidence that M.A.'s hymen had been penetrated at one time. Dr. Benink explained that the hymen of a 7-year-old female is presumed virginal and would normally be round and less than 5 millimeters in diameter. Dr. Benink testified that he measured the diameter of M.A.'s hymen in two places. Dr. Benink stated that M.A.'s hymen measured 6 millimeters at one diameter 7 millimeters at another diameter. Dr. Benink discovered two healed tears on M.A.'s hymen. Dr. Benink told the court that hymenal tears occur as the result of some type of penetration. Dr. Benink stated that he was not aware of any other way that a 7-year-old female's hymen could be disrupted other than by penetration. Dr. Benink further testified that there could be injury to the hymen and several subsequent [197 Ill.Dec. 934] penetrations to the same degree, but that any subsequent

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penetration of the same degree would have little or no noticeable effect upon the hymen because the hymen would "get used to the penetration."

On cross-examination, Dr. Benink testified that he handled two child sexual abuse cases during his three-year residency at Christ Hospital. Dr. Benink stated that he has read text books concerning the sexual abuse of children and that he attended lectures on the subject.

M.A. testified that Roman would enter her bedroom early in the morning after her mother left for work, whereupon he would take her into the living room and penetrate her vagina. M.A. used [260 Ill.App.3d 439] anatomically correct dolls to illustrate her testimony. Defendant made timely objections to the use of the dolls, but his objections were overruled. The following colloquy occurred at trial:

[STATE]: Okay. [M.A.], I'm showing you a doll that we have marked as People's Exhibit No. 1 for identification. Can you tell me if it's a girl doll or a boy?

[M.A.]: It's a girl.

[STATE]: You have to talk louder.

[M.A.]: A girl.

[STATE]: What [does] the girl doll have on?

[M.A.]: A dress.

[STATE]: Anything else?

[M.A.]: And her--

[STATE]: Like underpants?

[STATE]: Yes. And let's pretend that this girl doll is you. And that this dress is really your nightgown that you wore. And these would be your underpants, okay?

[M.A.]: Nodding.

[STATE]: Yes? You have to say, yes. Yes or no.

[M.A.]: Yes.

* * * * * *

[STATE]: When [Roman] would bring you into the living room and put you on the mattress, what would he do to you?

[M.A.]: Well, he would sometimes--he would stick his hands * * * Sometimes he would pull his pants down and sometimes he would just put his hand inside me.

[STATE]: Okay. Is there anything on this doll--can you tell the ladies and gentlemen what that is on the doll? We'll take the doll's pants off. What does she have on her body? What would you call it? Okay. Is there a hole or an opening on her body?

[M.A.]: Yes.

[DEFENSE COUNSEL]: Objection. Leading.

[THE COURT]: Overruled.

[STATE]: Okay. Pretending that this doll is you, what would [Roman] do?

[M.A.]: He would sometimes stick his hand inside there.

[STATE]: So you stick your finger inside the hole or opening of the doll?

[M.A.]: Yes.

[STATE]: And would he do that to your body, yes or no?

[M.A.]: Yes.

[STATE]: Okay. What else would he do?

[M.A.]: Sometimes he would just--

[THE COURT]: Speak loudly, [M.A].

[M.A.]: Sometimes he would just touch me.

[260 Ill.App.3d 440] [STATE]: Now, I'm going to show you another doll. This doll, [has] been marked People's Exhibit No. 2 for identification. Is this a man doll or a woman doll?

[M.A.]: A man.

[STATE]: Okay. When [Roman] would take you out of your bedroom and bring you to the living room, what would he usually be wearing?

[M.A.]: Sometimes a shirt. Sometimes not one.

[STATE]: Sometimes not one. Anything else would he be wearing?

[M.A.]: Yes. And sometimes shorts.

[STATE]: Underwear shorts or outside shorts?

[STATE]: Shorts. Okay. And when you and [Roman] were in the living room, would he be on the mattress with you?

[M.A.]: Yes.

[STATE]: Okay. And if we could pretend that this boy doll is just wearing a

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[197 Ill.Dec. 935] shirt and shorts like [Roman] would be wearing, would you show us what [Roman] would do?

[M.A.]: Sometimes he would take out his--and sometimes he would touch it.

[STATE]: So you are taking the body part of the male part out of the shorts. Do you know what that is called? If you don't know, that's okay. Okay. And would he touch it?

[M.A.]: He would just touch it.

[STATE]: Touching it with the doll's hand?

[M.A.]: Yes.

[STATE]: Okay. And would he do anything else to you [M.A.]?

[M.A.]: No, just--he would just--

[STATE]: What would he do to you?

[M.A.]: He would just touch me down here like this.

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