People v. Vannote, 4–10–0798.

• Decision Date: 04 June 2012
• Docket Number: No. 4–10–0798.,4–10–0798.
• Citation: 970 N.E.2d 72,2012 IL App (4th) 100798,361 Ill.Dec. 72
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Curtis VANNOTE, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2012 IL App (4th) 100798

970 N.E.2d 72

361 Ill.Dec. 72

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Curtis VANNOTE, Defendant–Appellant.

No. 4–10–0798.

Appellate Court of Illinois, Fourth District.

June 4, 2012.

Michael J. Pelletier, Karen Munoz, Colleen Morgan, State Appellate Defender's Office, Springfield, for appellant.

William A. Yoder, State's Attorney, Bloomington (Patrick Delfino, Robert J. Biderman, Luke McNeill, State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

Justice POPE delivered the judgment of the court, with opinion.

[361 Ill.Dec. 74]¶ 1 In February 2010, a jury convicted defendant, Curtis Vannote, of aggravated criminal sexual abuse (720 ILCS 5/12–16 (c)(1)(i)(West 2008)). In August 2010, the trial court sentenced defendant to seven years' imprisonment.

¶ 2 Defendant appeals, arguing (1) the trial court erred in admitting the victim's recorded interview, (2) the court erred in allowing evidence of defendant's prior conviction for aggravated criminal sexual abuse, and (3) the evidence was insufficient to prove defendant guilty beyond a reasonable doubt of aggravated criminal sexual abuse. We affirm.

¶ 3 I. BACKGROUND

¶ 4 In June 2009, the State charged defendant with aggravated criminal sexual abuse, alleging he touched then nine-year-old K.S.'s penis for the purpose of sexual arousal or gratification.

¶ 5 Prior to trial, the trial court allowed the State's motion to present evidence defendant had been previously convicted of aggravated criminal sexual abuse in March 1995 in McLean County case No. 94–CF–1037. Defendant's prior conviction involved his hand touching a nine-year-old boy's penis and buttocks under the child's clothing.

¶ 6 During trial, K.S., then 11 years old, testified he could not remember the events of the day defendant allegedly touched him. K.S. also testified he did not remember being interviewed about defendant touching him. K.S. also stated he did not know why he was in court. As a result, the State moved to admit a video of a June 2009 interview of K.S. by Detective Michael Burns at the McLean County Children's Advocacy Center (Advocacy Center). The trial court excused the jury and held a conference on the matter.

¶ 7 During the conference, Burns testified to the accuracy of the video but stated, due to an equipment malfunction, approximately 35 seconds toward the beginning of the interview was not recorded, i.e., the video skipped ahead 35 seconds. (The counter reflects a 31–second gap and the parties and the court refer to a 31–second gap and at times to a 35–second gap). Burns testified the omitted portion of the video contained routine background information. The parties viewed the video. According to the video, K.S. told Burns that while defendant was sitting on the front steps of K.S.'s mother's house, defendant “grabbed my private” and held it for approximately 10 seconds. K.S. pointed to his groin area to show what he meant by “private.” K.S. stated defendant's touching him did not feel good. K.S. also stated defendant said something to him while he was grabbing K.S.'s private but K.S. did not know what defendant said. K.S. also stated K.S.'s mother's adult friend and roommate, Sergio Gloria, heard K.S. telling his mother what had happened. Sergio then punched defendant “right in the eye,” knocking him unconscious. According to K.S., defendant “fell to the ground” and was “laying there snoring and he had blood all over [him].”

¶ 8 Defendant objected to the video's admission because after the 31– to 35–second skip, the video resumed with K.S. stating, defendant “grabbed my private” and “I told my mom.” The trial court reserved its ruling on the video's admissibility.

¶ 9 When testimony resumed, K.S. testified he recalled being taken to the Advocacy Center for an interview, but he did not recall what he said there. K.S. testified he did not recall the police coming to his mother's house about a fight. K.S. also did not recall being interviewed by Burns.

¶ 10 On cross-examination, the following colloquy took place between defendant's trial counsel and K.S.:

“Q. MR. LEWIS [ (defendant's trial counsel) ]: Ms. Patton [ (the assistant State's Attorney) ] had asked you about whether you remember going to the Children's Advocacy Center; correct?

A. Yes.

Q. And there's a statement. You talked to somebody there?

A. Yes.

Q. And talking to someone there, do you recall saying that you were tapping [defendant] on the shoulder?

A. Yes.

Q. And you'd been playing with [defendant]?

A. Yes.

Q. You were outside on the steps?

A. Yes.

Q. Now, was there a time where you mentioned to your brother something that you thought happened?

A. Yes.

Q. Do you recall that, on the day before, indicating to your brother that someone touching you was an accident?

A. Yes.

Q. [Defendant] raised his arm, and rubbed across your front?

A. Yes.

Q. Do you recall telling Detective Burns that, after that happened, you went to get a pop?

A. Yes.

Q. Where'd you go get that pop at?

A. Main Street.

Q. Is that one of those stores that's a block or two away?

A. No. It was like a pop machine out of-right next to the barbershop.

Q. Who gave you the money for that pop?

A. My mom.

Q. After you came back from that, do you recall saying anything to your mom?

A. No.

Q. And do you still not recall anything about [defendant] being hurt that day?

A. No.”

¶ 11 Burns then testified he had experience in interviewing children in cases involving child sex abuse. According to Burns' testimony, it is protocol to use nonleading questions any time a child is interviewed. Burns again testified the video was accurate and explained the equipment malfunctioned which resulted in the 35–second skip. Thereafter, the trial court admitted the videotaped interview and its transcript into evidence. The video was then played for the jury.

¶ 12 K.S.'s twin brother, Ky. S., testified K.S. came into the house sad and crying. Ky. S. testified K.S. told him defendant “touched him in the balls.” On redirect, Ky. S. testified the exact phrase K.S. used was, “He touched me in the private.” Sergio, their mother's friend and roommate, was at the house at the time. Ky. S. testified after their mother told Sergio what happened, Sergio punched defendant. Ky. S. recalled being taken to the Advocacy Center the next day and being interviewed by Burns. Ky. S. testified he told Burns the same things he had just testified to. On cross-examination Ky. S. agreed with counsel's statement he told Burns he thought the touching was an accident. On redirect, however, Ky. S. clarified he meant K.S. accidentally touched him (Ky. S.) when K.S. was showing Ky. S. how defendant had touched him (K.S.).

¶ 13 On February 25, 2010, the jury convicted defendant of aggravated criminal sexual abuse.

[361 Ill.Dec. 77]¶ 14 On August 3, 2010, the trial court sentenced defendant as stated.

¶ 15 This appeal followed.

¶ 16 II. ANALYSIS

¶ 17 On appeal, defendant argues (1) the trial court erred in allowing K.S.'s recorded interview where (a) it did not constitute a prior inconsistent statement and (b) the recording was not accurate because it was incompletely recorded; (2) the court erred in allowing the State to present evidence of defendant's prior conviction for aggravated criminal sexual abuse where (a) the evidence did not meet the threshold requirement of proximity in time and (b) the prejudicial impact of the evidence outweighed its probative value; and (3) the evidence was insufficient to prove defendant guilty beyond a reasonable doubt of aggravated criminal sexual abuse where the State failed to establish defendant touched the minor for the purpose of sexual gratification.

¶ 18 The State argues (1) the trial court did not err in allowing it to present the recorded interview pursuant to section 115–10.1 of the Code of Criminal Procedure of 1963 (Procedure Code) (725 ILCS 5/115–10.1 (West 2008)), (2) the court did not err in allowing the State to present evidence of defendant's prior conviction pursuant to section 115–7.3 of the Procedure Code (725 ILCS 5/115–7.3 (West 2008)), and (3) sufficient evidence was presented to prove defendant touched the minor for the purpose of sexual gratification.

¶ 19 A. Admissibility of K.S.'s Prior Statement

¶ 20 Defendant argues the trial court erred in admitting a recording of K.S.'s interview where (a) the evidence did not constitute a prior inconsistent statement and (b) the interview was inaccurate because it was incompletely recorded. We disagree.

¶ 21 We initially note the State did not seek to introduce the interview under section 115–10 of the Procedure Code (725 ILCS 5/115–10 (West 2008) (providing for the admission of a victim's hearsay statements in prosecutions for sexual acts committed against children)), apparently because it expected K.S. to take the stand and testify about the incident. In fact, in its opening statement, the State made no mention of the video to the jury. Instead, the State told the jury it would hear K.S. himself testify to the alleged conduct. It was not until K.S. took the stand and began testifying that it became apparent he was unable to recall the details the State attempted to elicit. At that point, the State sought to introduce the recorded interview under section 115–10.1. (The assistant State's Attorney told the court she had never planned on using the video, and in all the times she spoke with K.S. in preparing for trial, he never answered her questions the way he answered at trial. She also noted K.S.'s hands were shaking as he walked to the witness stand.)

¶ 22 Section 115–10.1 of the Procedure Code provides a witness's prior inconsistent statement is admissible as substantive evidence where:

“(a) the statement is inconsistent with his testimony at the hearing or trial, and

(b) the witness is subject to cross-examination concerning the statement, and

* * *

(C) the statement is proved to have been accurately recorded by a tape recorder,...