People v. Simpson
| Decision Date | 02 March 2018 |
| Docket Number | NO. 4-15-0960,4-15-0960 |
| Citation | 2018 IL App (4th) 150960 -U |
| Parties | THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENNETH D. SIMPSON, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
NOTICE
This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from Circuit Court of Coles County
Honorable Teresa K. Righter, Judge Presiding.
¶ 1 Held: The appellate court affirmed defendant's convictions and sentences, finding the trial court did not err in admitting other-crimes evidence at his trial.
¶ 2 In September 2015, a jury found defendant Kenneth D. Simpson guilty of three counts of predatory criminal sexual assault of a child and two counts of aggravated criminal sexual abuse. The trial court sentenced defendant to 25 years in prison on each of the sexual-assault counts and 5 years on each of the sexual-abuse counts.
¶ 3 On appeal, defendant argues the trial court erred in admitting other-crimes evidence at his trial. We affirm.
¶ 5 In May 2015, the State charged defendant by information with three counts of predatory criminal sexual assault of a child (720 ILCS 5/11-1.40(a)(1) (West 2014)), alleging defendant, who was 17 years of age or older, committed an act of sexual penetration with K.S., who was under 13 years of age when the act was committed, in that he placed his finger in her sex organ while in a shed (count I), while in defendant's bed (count II), and while K.S. was in a chair in the living room (count III). The State also charged defendant by information with two counts of aggravated criminal sexual abuse (counts IV and V) (720 ILCS 5/11-1.60(c)(1)(i) (West 2014)), alleging he, a person 17 years of age or over, knowingly committed an act of sexual conduct with K.S., who was under 13 years of age, in that he made her touch his penis on two different occasions. Defendant pleaded not guilty.
¶ 7 Prior to trial, the State filed a motion in limine to admit statements pursuant to section 115-10 of the Code of Criminal Procedure of 1963 (Procedure Code) (725 ILCS 5/115-10 (West 2014)). The State alleged K.S. was then five years old and made statements to her mother, a police detective, and a nurse regarding defendant touching her. Following a hearing, the trial court granted the motion.
¶ 8 The State also filed a motion in limine pursuant to section 115-7.3 of the Procedure Code (725 ILCS 5/115-7.3 (West 2014)) to admit testimony of other-crimes evidence involving defendant's acts of sexual conduct against three individuals, including C.J., age 11; A.J., defendant's daughter; and another 11-year-old minor. The State later indicated it would only seek to introduce evidence from C.J. and A.J. The motion indicated A.J. was 30 years old and the sex acts took place from her early childhood to approximately age 12.
¶ 9 At the hearing on the State's motion, Mattoon police detective Sam Gaines testified he conducted an interview with C.J. in May 2015. C.J. stated defendant touched her inher vaginal area, which she called her "taco," when she was in the fourth grade. When defendant reached inside her pants and touched her "taco," it made her feel "uncomfortable."
¶ 10 Gaines also conducted an interview with A.J. in June 2015. A.J. stated her grandmother told her defendant's sexual abuse first started when A.J. was a baby. Her mother also told her defendant would lie in bed with A.J and "she suspected that he was doing something." A.J. stated she first remembered being touched inappropriately by defendant when she was three years old. When she was approximately six years old, A.J. and her four-year-old brother watched pornographic movies and looked at pornographic magazines that defendant had left lying around. Defendant fondled her vagina and "stuck the head of his penis" in her. Defendant also made her "jack him off." A.J. stated defendant once took her "down to the cemetery" and gave her "twenty dollars to see [her] pub's." On one occasion, in a recreational vehicle when A.J. was approximately 11 years old, defendant "stuck his penis" in her while her stepmother Michelle was "coming up the lane." Defendant's conduct continued until A.J. was 12 years old.
¶ 11 The State argued C.J.'s statement showed factual similarities with defendant's touching of K.S. As to A.J., the State contended factual similarities existed with respect to K.S.'s case and the evidence was "not too remote in time to be admissible." Defense counsel argued A.J.'s allegations were too remote and "extraordinarily prejudicial." If the trial court permitted A.J. to testify, defense counsel stated it would change the "whole character of the trial."
¶ 12 At the conclusion of the hearing, the trial court found C.J.'s testimony met the requirements of section 115-7.3 and its probative value outweighed any prejudice that would result from its admission. As to A.J., the court took the matter under advisement. In its writtenorder, the court noted it had considered the proximity in time and the degree of factual similarity between the charged offenses and A.J.'s testimony. The court concluded the probative value of A.J.'s testimony outweighed its prejudicial effect. However, the court stated A.J. could not testify regarding allegations or statements made by her grandmother or mother, watching pornographic videos or seeing pornographic magazines with defendant, an incident at a cemetery, or "penetration by penis."
¶ 14 In September 2015, defendant's jury trial commenced. Testifying as the State's first witness on closed-circuit television, K.S. stated she was five years old. K.S. referred to a vagina as "monkey" and a penis as "pee pee." While inside defendant's house, he touched her on two occasions. During the daytime incident in defendant's bedroom, defendant touched her "monkey" with his finger while they were on the bed. Defendant's wife, Robyne, was at work at that time. K.S. stated defendant put his finger inside her. During the nighttime incident, defendant touched her "monkey" while Robyne was also in the room. While K.S. remembered going to a shed with defendant to retrieve her bicycle, she indicated nothing happened.
¶ 15 Prior to C.J.'s testimony, the trial court read an instruction to the jury that her testimony was to be considered only for the limited purpose of defendant's propensity to commit a sex offense. C.J. testified via closed-circuit television and stated she was 11 years old. C.J. refers to a vagina as "taco." On one occasion, C.J. and her brothers and sisters spent the night at defendant's house. While her siblings were asleep in another room, C.J. was sitting on defendant's bed in his bedroom when he reached inside her pants and touched her "taco" with his fingers. When her mother asked if defendant had touched her, C.J. reported it to her.
¶ 16 Prior to A.J.'s testimony, the trial court read the limiting instruction to the jury. A.J., age 30, testified defendant is her father and Debra Stewart is her mother. When she was approximately three years old, defendant "used to put his hands down [her] pants and finger [her]" vagina once or twice per week. A.J. stated defendant touched her vaginal area with his fingers "hundreds" of times. Defendant and Stewart separated when A.J. was 4 years old, and A.J. never lived with him between the ages of 4 and 10. A.J. lived with defendant between the ages of 10 and 12. On one occasion, when her stepmother Michelle was in the shower, defendant took A.J. "in the basement and stuck his hands in [her] pants and started fingering [her]." Defendant told her not to tell anyone or she would get into trouble. Defendant would also come into her bedroom at night and "hold [her] face so [she] couldn't scream as he would stick his hands in [her] pants and finger [her]." A.J. stated she "wanted to die because he wouldn't stop" and tried to commit suicide by drinking a cup of bleach, hanging herself with a curling iron, and slitting her wrist. Besides putting his hands in her pants, defendant would also make her stick her hands "around his penis and jack him off." A.J. believed she was 12 or 13 years old when defendant made her fondle him. The last time defendant sexually abused her took place in a recreational vehicle. A.J. testified he was "on" her and she "kept telling him" that his wife "was coming and he better get off [her] because she's going to find out." Defendant "hurried up and did what he was doing," and A.J. "jumped up," "cleaned [herself] up," and "walked out like nothing ever happened."
¶ 17 A.J. testified "there was an incident" related to defendant's sexual abuse where she received money, but she could not talk about it. When Michelle asked where she got the money, A.J. lied and said her mother gave it to her. Feeling guilty about lying, A.J. later told Michelle where she got the money, and Michelle "smacked [her] in the face."
¶ 18 The prosecutor asked A.J. about two letters, which she admitted contained her handwriting but she did not remember writing. In both letters, A.J. stated she was lying when she accused her father of "touching" her and made the allegations because she was mad at Michelle for not letting A.J. live with her mother. A.J. also testified to making a video when she was 11 years old in front of defendant, Michelle, and defendant's sister. Wanting to live with defendant and Michelle, A.J. stated she "had to do the tape" and say defendant did not molest her. The sexual abuse then started "a few months later."
¶ 19 Noelle Cope, a nurse practitioner, testified as an expert in pediatric sexual-abuse examinations. She performed a sexual-abuse examination on K.S. in May 2015. When asked if anyone touched her in a way that made her feel uncomfortable, K.S. stated her grandfather,...
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