People v. Sharp, 4-02-0913.

• Decision Date: 02 March 2005
• Docket Number: No. 4-02-0913.,4-02-0913.
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jason M. SHARP, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

825 N.E.2d 706

355 Ill. App.3d 786

292 Ill.Dec. 118

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jason M. SHARP, Defendant-Appellant.

No. 4-02-0913.

Appellate Court of Illinois, Fourth District.

March 2, 2005.

Daniel D. Yuhas, Deputy Defender (Court-appointed), Gary R. Peterson, Assistant Defender, Office of the State Appellate Defender, Springfield, for Jason M. Sharp.

Jerry A. Johnson, State's Attorney, Clinton, Norbert J. Goetten, Director, Robert J. Biderman, Deputy Director, James C. Majors, Staff Attorney, State's Attorneys Appellate Prosecutor, Springfield, for the People.

Justice STEIGMANN delivered the opinion of the court:

In September 2002, a jury convicted defendant, Jason M. Sharp, of predatory criminal sexual assault of a child, finding that he committed an act of sexual penetration with J.E. when she was under 13 years of age (720 ILCS 5/12-14.1(a)(1) (West Supp.2001)). The trial court later sentenced him to 20 years in prison.

Defendant appeals, arguing that (1) the trial court erred by admitting certain hearsay testimony in violation of (a) the confrontation clause of the sixth amendment (U.S. Const., amend.VI) and (b) section 115-10 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-10 (West 2000)) and (2) he was denied a fair trial by the prosecutor's rebuttal argument. We disagree and affirm.

I. BACKGROUND

In January 2002, the State charged defendant (who was then 20 years old) with predatory criminal sexual assault of a child, alleging that he committed an act of sexual penetration with J.E. (who was 11 years old at the time of the offense and 12 years old at defendant's trial) by placing his penis in her vagina (720 ILCS 5/12-14.1(a)(1) (West Supp.2001)). In February 2002, the State filed a motion under section 115-10 of the Code (725 ILCS 5/115-10 (West 2000)), seeking to offer at defendant's trial statements J.E. made to (1) her mother, Lydia E., (2) Mary Whitaker, the associate director of operations for the McLean County Children's Advocacy Center, and (3) her then-14-year-old friend, Tasha B.

A. The Section 115-10 Hearing

At a March 2002 hearing on the State's section 115-10 motion, Lydia testified that on January 2, 2002, she heard from her then 15-year-old son, Jesse E., that defendant had had sexual intercourse with J.E. Later that day, Lydia had a conversation with J.E. Lydia first said, "[J.E.], I heard a rumor today," to which J.E. responded, "What, Mom?" Lydia then said "[I heard that defendant] had sex with my little girl." J.E. initially denied it, and Lydia said, "Okay, honey, you know it's one thing for two adults to be having sex, but when a 20[-]some[-]year[-]old man is having sex with an 11 year old, that's rape, and it's wrong, and you need to tell me." At that point, J.E. burst into tears and said, "Yes, I told him to stop, but he wouldn't." Lydia then asked J.E. if defendant penetrated her, and J.E. responded that she did not know what the term "penetrated" meant. Lydia explained the term, and J.E. said that defendant had penetrated her. J.E. also told Lydia that defendant had pushed her into a building at the local fairgrounds and sexually assaulted her. Lydia then telephoned the police and reported the incident.

Whitaker testified that on January 11, 2002, she interviewed J.E. in the De Witt County sheriff's department "victim[-]sensitive interview room." Whitaker explained that the room had a "living[-]room setting" and was set up so that the alleged child victim would not be distracted. She also explained that Jo Sipes, an Advocacy Center staff member, was present during the interview, and the interview was audiotaped and later transcribed. For the purpose of the section 115-10 hearing, the trial court admitted in evidence the transcript and original audiotape of the interview. The transcript and audiotape showed that Whitaker asked J.E. openended questions and resorted to leading questions only to clarify details. After initial general questioning, Whitaker showed J.E. a drawing of an anatomically correct female child, and J.E. identified certain body parts, including the vagina (which J.E. referred to as "Peechacho"). J.E. then described the incident. In particular, J.E. stated that after she, Tasha, defendant (whom J.E. did not know), and Billy Joe W. (a 12- or 13-year-old boy whom J.E. knew), walked to the county fairgrounds, defendant and Billy Joe walked up the grandstand stairway. Defendant tried to convince J.E. and Tasha to walk up the stairway, but they refused. Following several requests by defendant, J.E. and Tasha agreed to walk up the stairway. When they reached the stairway landing, defendant pulled J.E. into a room, while Tasha and Billy Joe remained at the top of the stairway. After defendant pulled J.E. into the room, he tripped her, and she fell to the floor. Defendant then pulled down J.E.'s pants and underwear, took off his own pants and underwear, pinned J.E. down by holding her arms, and got on top of her. J.E. put her hands out in front of her and told defendant to "stop now." She told him to stop "about [5] to [10] times." Defendant did not respond to J.E.'s requests and, instead, continued to hold her down.

Whitaker asked J.E. what happened next, but J.E. did not respond. Then Whitaker showed J.E. a drawing of an anatomically correct male and asked the following questions to which J.E. gave the following answers:

"[WHITAKER]: Okay[,] use whatever words you want, and you know what you, you don't even have to use a specific word[,] you can just tell me what happened.

[J.E.]: He stuck his[,] thing[,] in * * *.

[WHITAKER]: Okay you said he stuck his [']thing['] in * * *?

[J.E.]: My Peechacho.

[WHITAKER]: [Your] Peechac[h]o okay. When you say his [']thing[,'] what what's his [']thing[']? You know another word for that, or would you like to use the drawing?

[J.E.]: His pee pee."

Whitaker then clarified that J.E. knew the difference between "inside" and "outside." J.E. told Whitaker that after defendant put his "pee pee" inside her, he put his pants back on and told her to pull up her pants. J.E. then found Tasha and ran down the grandstand stairway. She acknowledged telling Lydia about the incident but denied telling Tasha about it. J.E. also said that when Jesse asked her if it was true that defendant had "screwed" her, she denied it because she was "too embarrassed."

Tasha testified that after she and J.E. left the fairgrounds, J.E. told her that defendant had had sex with J.E.

After considering the testimony and counsel's arguments, the trial court took the matter under advisement. Later in March 2002, the court entered a docket entry order in which it (1) granted the State's motion seeking to offer at defendant's trial statements J.E. made to Lydia and Whitaker and (2) denied the State's motion seeking to offer the statements J.E. made to Tasha.

B. Trial Testimony

At defendant's September 2002 trial, J.E. testified as to the circumstances surrounding how she, defendant, Tasha, and Billy Joe ended up in the grandstand of the fairgrounds on December 1, 2001. J.E. did not know the exact time the four of them walked to the fairgrounds, but it was "turning dark." After they walked up the grandstand stairs, defendant opened a door, pushed J.E. inside a room, and shut the door. Tasha and Billy Joe remained outside the room on the stairway landing. Once inside the room, defendant tripped J.E. and pushed her to the floor.

J.E. did not respond on direct examination to five different questions about what defendant did to her when they were alone inside the room. However, she stated that she told defendant to "stop" about five times. J.E. also stated that everything she told Whitaker during the January 11, 2002, interview was true and accurate.

On cross-examination, J.E. answered all of defense counsel's questions (which were of a general sort) regarding (1) J.E.'s activities on the day in question and (2) a description of the room involved. Defense counsel elected not to ask her any questions as to what happened in the room when defendant and she were in it together.

Tasha testified that after she, J.E., Billy Joe, and defendant walked up the grandstand stairway, defendant took J.E. into the room at the top of the stairs. Tasha and Billy Joe sat on a couch on the stairway landing. Shortly thereafter, Tasha heard J.E. say, "Stop it, ouch, that hurts" and "Leave me alone." She recalled hearing J.E. say "Ouch" more than once. After around 15 to 30 minutes, when it was "about dark," J.E. and defendant came out of the room, and Tasha and J.E. walked to Tasha's residence.

Jesse testified that on December 31, 2001, he heard a rumor about defendant and J.E. That evening, he and two friends, Daniel Taylor and Steven Wisegarver, went to defendant's residence to confront him about the rumor. Defendant, who was there alone, let them in, and the four of them sat down in defendant's bedroom. Defendant said he had something to tell Jesse and then left the bedroom for a short time. When defendant returned, he told Jesse that he had "fucked [Jesse's] sister." (J.E. is Jesse's only sister.) Jesse "freaked out," pinned defendant down, and they had "some words." Jesse, Taylor, and Wisegarver then left. Taylor testified and gave substantially the same version of events that took place at defendant's residence on December 31, 2001, as did Jesse.

Wisegarver testified that after he, Jesse, and Taylor arrived at defendant's residence on the evening of December 31, 2001, the four of them sat down in defendant's bedroom. They were "just talking" when Jesse asked defendant if the rumor about defendant and J.E. was true. Defendant replied that it was and then said, "I fucked [Jesse's] sister."

Lydia testified substantially the same as she had at the section 115-10 hearing regarding the statements J.E. made to her on January 2, 2002. However, she also stated that when she initially told J.E. about the rumor that defendan...