People v. Sargent, 2-07-0516.

• Decision Date: 27 March 2009
• Docket Number: No. 2-07-0516.,2-07-0516.
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. William E. SARGENT, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

907 N.E.2d 410

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. William E. SARGENT, Defendant-Appellant.

No. 2-07-0516.

Appellate Court of Illinois, Second District.

March 27, 2009.

As Modified Upon Denial of Rehearing May 19, 2009.

Patricia Unsinn, Deputy Defender, Deborah K. Pugh (both Court-appointed), Office of the State Appellate Defender, Chicago, for William E. Sargent.

Ronald G. Matekaitis, DeKalb County State's Attorney, Sycamore, Lawrence M. Bauer, Deputy Director, State's Attorneys Appellate Prosecutor, Elgin, Catherine A. Voigt, Glen Ellyn, for the People.

Modified Upon Denial of Rehearing

Justice O'MALLEY delivered the opinion of the court:

Defendant, William Sargent, appeals from his conviction, after a jury trial, of three counts of predatory criminal sexual assault and two counts of aggravated criminal sexual abuse against M.G. and J.W., his two minor stepsons. On appeal, defendant argues that the trial court erred by failing to tender to the jury an instruction governing hearsay evidence pursuant to section 115-10(c) of the Code of Criminal Procedure (Code) (725 ILCS 5/115-10(c) (West 2006)), that four of his convictions must be reversed because the State failed to offer proof of the corpus delicti of the crimes, and that the trial court improperly imposed two concurrent seven-year sentences for aggravated criminal sexual abuse to run consecutively to his life sentence for his remaining crimes. The State concedes the sentencing argument. For the reasons that follow, we affirm the judgment of the trial court with the modification that defendant's seven-year sentences run concurrently with his life sentence.

Defendant was charged with one count of predatory criminal sexual assault (720 ILCS 5/12-14.1(a)(1) (West 2004)) for his allegedly placing a part of his body in the anus of J.W., three counts of predatory criminal sexual assault for his allegedly placing his finger in the anus of M.G., and two counts of aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(1)(I) (West 2004)) for allegedly fondling the penis of M.G. for sexual gratification.

M.G., who was eight years old at the time of the trial and six years old at the time of defendant's alleged offenses, testified as the State's first witness, but his substantive testimony consisted only of his answering that he did not remember in response to being asked if his stepfather had done anything to him "that [he] didn't like" during the time they lived together. Joseph Veronda, an Illinois Department of Children and Family Services (DCFS) child protective investigator, testified that, in an interview unrelated to the current charges against defendant, M.G. said that "he had a secret." Veronda recalled that when he asked M.G. what the secret was, M.G. told him that "Bill puts Bill's finger in [M.G.]'s butt." Veronda later interviewed M.G. regarding the allegations, and the State submitted a video of the interview as evidence.

In the video, Veronda asks M.G. to tell Veronda about a secret M.G. and "Bill" had, and M.G. tells Veronda (through talking and through writing on an easel pad) that "Bill" put his finger in M.G.'s "butt" at the house in which Bill and M.G.'s mother lived, when M.G. was six years old. When Veronda asks M.G. how many times such incidents occurred, M.G. responds first that he does not know how many times the incidents happened, but, when asked if it happened one time or more than one time, M.G. answers that it happened one time.

Melissa Sargent, the mother of the two alleged victims, testified that she was married to defendant when he allegedly committed the offenses and that, while she was at work during the day, the boys would be placed in day care or watched by defendant.

J.W.'s aunt and then-guardian testified that she asked J.W. about the allegations against defendant after she learned that defendant had been arrested. She recalled that J.W. "got quiet" after she explained to him what sexual abuse was but that J.W. eventually told her that defendant "attempted to place his penis in [J.W.'s] butt" "at least once a month." The aunt said that, when she asked if defendant abused J.W. in any other way, J.W. reported that defendant had not.

During his testimony, J.W. stated that defendant "would try to stick [his] penis in [J.W.'s] butt" and that this occurred "[l]ike once a month" for the several months that he and defendant lived in the same apartment.

The State's next witness, a forensic interviewer, verified the authenticity of a video recording of her December 14, 2004, interview with J.W. In the interview recording, J.W. tells the interviewer that his then-stepfather Bill once came into J.W.'s room and "tried to put his winkie" or his "private" in J.W.'s "butt"; J.W. says that Bill did this approximately once a month. Later in the interview, J.W. tells the interviewer that, when he said that his stepfather "tried" to abuse him, J.W. was expressing what he wished had happened. J.W. also says that his stepfather had touched J.W.'s "winkie" "once or twice." J.W. initially tells the interviewer that his stepfather had never made J.W. touch his penis, but J.W. later admits that he "once or twice" was forced to touch his stepfather's penis. Later in the video, J.W. denies ever touching his stepfather's penis. J.W. tells the interviewer that he had never seen his stepfather sexually abuse M.G.

Detective Mark Nachman testified that he interviewed J.W. on December 29, 2004, and defendant on December 9, 2004, and he verified the authenticity of video recordings of both interviews.

In the recording of the December 29, 2004, interview, J.W. tells Nachman that he was nervous during his December 14 interview. J.W. tells Nachman that for several months "Bill" would stick his "private" up J.W.'s "butt" about once a month. J.W. says that the first incident occurred in the living room at their home on Kimberly Drive, while his mother was not home. J.W. recalls that Bill came into J.W.'s room, where J.W. and M.G. were playing, and dismissed M.G. before placing his penis in J.W.'s anus. He says that, in a second incident, Bill approached J.W. while J.W. was showering, stuck his penis in J.W.'s anus, and "tried to suck [J.W.'s] penis." J.W. describes a third incident in which Bill came into his bedroom while J.W. was preparing to sleep and again tried to sexually abuse him. J.W. denies that he had ever touched Bill's penis, but he says that Bill had once touched J.W.'s penis. During the interview, J.W. estimates that Bill sexually abused him 12 times in total. Just as in the previously recorded interview, J.W. says that he had never seen his stepfather sexually abuse M.G.

In the video of his interview with Nachman, defendant says that he placed his finger in M.G.'s anus 50 to 70 times within the past year or year and a half. He states that the incidents normally occurred in the bathroom but that they had also occurred in the living room and in M.G.'s bedroom. When pressed by Nachman, defendant further admits that he had touched M.G.'s penis during approximately half of the incidents. Defendant also recalls that he caused M.G. to watch defendant masturbate approximately 30 times. With respect to J.W., defendant estimates that he had touched J.W.'s anus with his finger 30 to 40 times, often in the shower, and that he attempted to masturbate J.W. 20 times. Defendant also recalls that J.W. helped defendant masturbate several times. Defendant further says that there were approximately 10 to 20 incidents involving J.W., M.G., and defendant at the same time. Defendant states that, during those incidents, he had made J.W. and M.G. touch each other's penises.

After Nachman's testimony, the State called Jacqueline Weber as an expert witness on the subject of child sexual abuse accommodation syndrome, which she described as a "recognized form of post-traumatic stress disorder" that affects "the typical response pattern of the typical child who has been sexually abused." Weber testified that children who are abused often keep the abuse secret or disclose the abuse incrementally.

Defendant testified next on his own behalf. He testified that he lived with M.G., J.W., and their mother in an apartment during the relevant time periods. Defendant said that his admissions in the recorded interview with Nachman were false and that the video showed him making up the confessions because he was intimidated by Nachman and hoped his confessions would end the interview. In his testimony, defendant denied having sexually abused either J.W. or M.G. On cross-examination, defendant continued to assert that he confessed to Nachman because he wanted to tell Nachman what Nachman wanted to hear, but he acknowledged that the video recording of his interview showed him repeatedly denying having performed oral sex on the boys or having put his penis in the anuses of the boys.

The trial ended with testimony from defendant's sister and rebuttal testimony from Nachman, and the case was submitted to the jury. Neither party suggested, and the trial court did not tender, a jury instruction tracking the language of section 115-10(c) of the Code (725 ILCS 5/115-10(c) (West 2006)), which provides as follows:

"If a statement is admitted pursuant to this Section, the court shall instruct the jury that it is for the jury to determine the weight and credibility to be given the statement and that, in making the determination, it shall consider the age and maturity of the child, * * * the nature of the statement, the circumstances under which the statement was made, and any other relevant factor." 725 ILCS 5/115-10(c) (West 2006).

The trial court did give the jury an instruction regarding the assessment of witness credibility in general:

"In considering the testimony of any witness you may take into account his ability and opportunity to observe, his age, his memory, his manner while testifying, any interest, bias or prejudice he may have, and the...