People v. Roy

• Decision Date: 27 June 1990
• Docket Number: No. 4-89-0744,4-89-0744
• Citation: 201 Ill.App.3d 166,146 Ill.Dec. 874,558 N.E.2d 1208
• Parties: , 146 Ill.Dec. 874 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Michael ROY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1208

558 N.E.2d 1208

201 Ill.App.3d 166, 146 Ill.Dec. 874

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Michael ROY, Defendant-Appellant.

No. 4-89-0744.

Appellate Court of Illinois,

Fourth District.

June 27, 1990.

Rehearing Denied Sept. 18, 1990.

James L. Ayers, Monticello, for defendant-appellant.

Roger Simpson, State's Atty., Monticello, Leonard R. Rumery, Asst. State's Atty., for plaintiff-appellee.

Presiding Justice KNECHT delivered the opinion of the court:

Defendant Michael Roy was charged by information with four counts of aggravated criminal sexual assault and two counts of criminal sexual assault. Each count alleged that in November 1988, defendant placed his finger in the anus of B.R., his four-year-old son. The State dismissed two counts of aggravated criminal sexual assault, and a bench trial was held on the remaining counts on June 16, 1989, and June 21, 1989. The court took the verdict and objections of defendant under advisement and on July 7, 1989, announced its verdict of guilty on all remaining counts. Defendant was sentenced on one count of criminal sexual assault and one count of aggravated criminal sexual abuse to 36 months' probation. The conditions of the probation included psychiatric testing and treatment, counseling through an offender's program, payment for any counseling services engaged in by B.R. for the next five years, and six months' imprisonment in the Piatt County jail subject to work release. Defendant's motion to stay confinement pending appeal was granted.

Defendant appeals alleging (1) the trial court erred in admitting the testimony of Dr. Lanker and Dr. Beutow relaying B.R.'s out-of-court statements; (2) the trial court erred in admitting Dr. Beutow's testimony regarding post-traumatic stress syndrome; (3) the trial court erred in admitting the testimony of Carolyn Roy regarding B.R.'s out-of-court statements; (4) the trial court erred in admitting testimony of Pamela Gremmels regarding out-of-court statements and actions of B.R. and in admitting the publication Red Flag, Green Flag People (J. Williams, Red Flag, Green Flag People (Rev. ed. 1983)); and (5) he was not proved guilty beyond a reasonable doubt. We affirm.

Carolyn Roy testified she lives in Monticello, Illinois, with her fiance, Brian Robbins, his minor child, and her two children, four-year- old B.R. and three-year-old H.R. Carolyn and defendant were married in September 1982, and defendant is the father of both B.R. and H.R. Pursuant to their divorce in December 1987, Carolyn has custody of the children. Carolyn testified defendant resides with his mother, Christina Roy, at her residence in Monticello and has visitation with the children every other weekend and on holidays and special occasions.

In August 1988, Carolyn observed changes in B.R.'s behavior. B.R. no longer enjoyed his bath time, was having trouble sleeping, and was scared of the dark. B.R. did not complain of any physical pains, though he was extremely aggressive and angry. Carolyn testified it was in September or October 1988, B.R. switched from a private sitter to day care.

On Thanksgiving Day of 1988, Carolyn took B.R. and H.R. over to defendant's home around 6 p.m. Carolyn, B.R., and H.R. had earlier attended a Thanksgiving celebration with Carolyn's family. Carolyn made arrangements with defendant to pick the children up on the next day, Friday the 25th, after she got off work. When Carolyn arrived the next day at about 6 p.m., B.R. immediately said "Mommy, my butt hurts." When making this statement, B.R. did not make eye contact with Carolyn and was looking downward. Defendant, his mother, and H.R. were in the room at this time though defendant immediately left. B.R. began to cry, and Carolyn asked Christina what was wrong. Christina replied B.R. had awakened in the middle of the night screaming in pain. Christina said B.R. had had a little bit of diarrhea and she had put medicine on his bottom. Carolyn took B.R. and H.R. home.

When they arrived home, Carolyn, B.R., and H.R. watched TV and read a book with Brian and his son. Carolyn testified B.R. was upset and she could tell something was really bothering him. After the other two children were in bed and Brian was in another room, Carolyn asked B.R. what was wrong. B.R. was very uneasy about talking with her and continually complained his butt was hurting and he could not sit up anymore. B.R. asked Carolyn to put medicine on his butt like his dad and grandma do. Carolyn responded she could not put medicine on his butt until she knew what had happened to make it hurt because there are different kinds of medicine. At this point, B.R. stood up and stated "My daddy takes two fingers like this, and pokes them up my butt." Carolyn testified she hugged B.R. and told him she was sorry. She put B.R. to bed. This conversation between Carolyn and B.R. occurred sometime between 8 and 9 p.m.

The next morning Carolyn called Carle Clinic and spoke to Dr. Lanker. Carolyn told Dr. Lanker she had reason to believe her son had been abused. Carolyn took B.R. to see Dr. Lanker and was present when B.R. was examined. Carolyn testified she had not told Dr. Lanker anything regarding B.R. being constipated as Christina had earlier informed her B.R. had had diarrhea.

Carolyn testified she had a conversation with defendant and his mother in August 1988, wherein she requested the children sleep by themselves during visitation. Defendant told her he had no problem with that and did not ever deny the children were sleeping with him or his mother.

William Lanker testified he is a physician with Carle Clinic. On Saturday, November 26, 1988, Dr. Lanker examined B.R. though he is not B.R.'s regular physician. The purpose of the examination concerned B.R.'s complaints of rectal pain. Carolyn Roy was present in the examining room. She told Dr. Lanker she had noticed B.R. would complain of this pain when he returned from a weekend with his father and of B.R.'s statement his father put two fingers up his butt. Carolyn also told Dr. Lanker B.R. had made inappropriate acts toward her sister's boyfriend at their family's Thanksgiving gathering. Her sister's boyfriend had been lying on a couch taking a nap when B.R. crawled between the boyfriend's legs and blew on his crotch. When told to stop, B.R. responded his father does it. Prior to the actual physical exam, Dr. Lanker tried to elicit from B.R. what caused his rectal pain and B.R. was reluctant to tell him.

Dr. Lanker observed it was painful for B.R. to sit. Dr. Lanker noticed this when B.R. entered the room and later when B.R. was asked to climb up on the examination table. When Dr. Lanker parted the cheeks of B.R.'s bottom to look at his anus, B.R. complained of tenderness and was reluctant for Dr. Lanker to continue examining him. B.R. withdrew from Dr. Lanker's touch. Dr. Lanker did not observe any marks, trauma, redness, or hemorrhoids in the anal area. Because of B.R.'s reluctance and obvious pain, Dr. Lanker did not perform a rectal exam.

After the examination, Dr. Lanker asked B.R. how long he had been hurting. B.R. stated he had been hurting for two days. When Dr. Lanker asked B.R. if it had ever happened before, B.R. stated yes. When Dr. Lanker asked how many times B.R. had had this problem, B.R. responded for about six weekends. Dr. Lanker asked B.R. "Is what your mother told me true, does your father put his fingers in your bottom, did he stick them in your rectum," and B.R. replied, "yes." In doing so, B.R. avoided eye contact with Dr. Lanker, looking at the floor and away. When Dr. Lanker later tried to have B.R. repeat the statement, B.R. refused to answer him.

When questioned whether a plausible explanation for B.R.'s pain was constipation, Dr. Lanker stated this was a plausible explanation; however, there were not any chronic signs of constipation such as hemorrhoids or fissures. Furthermore, the only complaint children usually have in such situations is of abdominal tenderness and not rectal pain. At the time of the examination, Dr. Lanker was aware B.R. had been prescribed Ceclor and Tylenol with codeine for a prior cold and sore throat. Dr. Lanker testified Tylenol with codeine may cause stomach upset, vomiting, or constipation.

Dr. Lanker stated he has not seen this sort of tenderness on a child's bottom without some sort of direct mechanical irritation. In response to the question whether it was possible the tenderness was a result of normal activities, Dr. Lanker responded, "I do not think so." Dr. Lanker was aware B.R.'s records indicated he had previously been seen at the clinic in August 1987 for rectal pain. Dr. Lanker referred the case to Dr. Beutow and notified the Department of Children and Family Services (DCFS) of possible abuse.

Mary Kathrine Beutow testified she is a pediatrician with Carle Clinic. She examined B.R. on December 5, 1988. Prior to the examination she interviewed Carolyn Roy and B.R. Initially, she observed B.R. to be a friendly, outgoing child. However, when Dr. Beutow asked B.R. to describe visiting his father, B.R. became very upset and did not want to talk anymore. B.R. eventually told Dr. Beutow his father had hurt him. When asked where he had been hurt, B.R. said he had hurt him in his butt with his fingers. At this point, B.R. asked to leave the room and was very distressed. Dr. Beutow persuaded B.R. to remain in the room and he told her this occurred upstairs in the bedroom and it had happened lots of times. His daddy hurt him in the butt but not in the "weiner." B.R. stated he liked his daddy and his daddy had not threatened him not to tell.

During the physical exam, B.R. was very uncomfortable with the idea of Dr. Beutow looking at his anal area. B.R.'s anus appeared normal and B.R. was not experiencing any of the pain he had earlier complained of. Dr. Beutow diagnosed B.R. as a sexually abused child and recommended treatment.

Dr. Beutow further testified B.R....