People v. Wasson

• Decision Date: 04 April 1991
• Docket Number: No. 4-90-0304,4-90-0304
• Citation: 155 Ill.Dec. 710,211 Ill.App.3d 264,569 N.E.2d 1321
• Parties: , 155 Ill.Dec. 710 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Curtis L. WASSON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1321

569 N.E.2d 1321

211 Ill.App.3d 264, 155 Ill.Dec. 710

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Curtis L. WASSON, Defendant-Appellant.

No. 4-90-0304.

Appellate Court of Illinois Fourth District.

April 4, 1991.

Daniel D. Yuhas, Deputy Defender, Office of State Appellate Defender, Springfield, Jeffrey D. Foust, Asst. Defender, for defendant-appellant.

Craig H. DeArmond, State's Atty., Danville, Kenneth R. Boyle, Director, State's Attys. Appellate Prosecutor, Springfield, Robert J. Biderman, Deputy Director, Amy K. Schmidt, Staff Atty., for plaintiff-appellee.

Justice KNECHT delivered the opinion of the court:

On July 10, 1989, defendant Curtis Wasson was charged by amended information with two counts of aggravated indecent liberties with a child (Ill.Rev.Stat.1983, ch. 38, pars. 11-4.1(b)(1)(A), (b)(1)(C)) and one count of aggravated criminal sexual assault (Ill.Rev.Stat., 1984 Supp., ch. 38, par. 12-14(b)(1)). The first count of aggravated indecent liberties with a child alleged defendant, between January 1, 1983, and June 30, 1984, performed an act of sexual intercourse with M.F., who was under nine years of age when the act was committed. The second count alleged between January 1, 1983, and June 30, 1984, defendant performed an act of penetration by placing his penis into the genital opening of M.F., who was under the age of nine when the act was committed. The charge of aggravated criminal sexual assault alleged defendant, between July 1, 1984, and April 25, 1985, committed an act of sexual penetration with M.F. in placing his penis into her vagina. At a bench trial held on July 13, 1989, defendant was found guilty of both counts of aggravated indecent liberties with a child and not guilty of aggravated criminal sexual assault. Defendant was sentenced to eight years' imprisonment.

Defendant was previously tried for these offenses on May 7, 1987, and convicted of aggravated criminal sexual assault. (Ill.Rev.Stat., 1984 Supp., ch. 38, par. 12-14(b)(1).) The information had alleged between January 1, 1983, and April 24, 1985, defendant had committed an act of sexual penetration with M.F., who was under 13 years of age when the act was committed. On appeal, we reversed defendant's conviction for aggravated criminal sexual assault and remanded it for a new trial, where the information alleged the offense had been committed during a time period which commenced before the effective date of the statute, July 1, 1984. People v. Wasson (1988), 175 Ill.App.3d 851, 125 Ill.Dec. 369, 530 N.E.2d 527.

Defendant now appeals from his current conviction, alleging (1) he was denied a fair trial when an alleged expert was permitted to give psychological testimony that M.F. suffered from post-traumatic stress syndrome as a result of sexual child abuse; (2) his conviction for aggravated indecent liberties with a child should be reversed because he had previously been tried for aggravated criminal sexual assault based upon the same facts and, accordingly, the State was barred from pursuing multiple prosecutions under sections 3-3 and 3-4 of the Criminal Code of 1961 (Code) (Ill.Rev.Stat.1983, ch. 38, pars. 3-3, 3-4); and (3) his conviction for aggravated indecent liberties with a child should be reversed or, alternatively, reversed and remanded for a new trial because the amended information was filed after the expiration of the three-year statute of limitations and failed to aver facts which would invoke an exception. We affirm.

At the bench trial held on July 13, 1989, Dr. W.R. Elghammer, a pediatrician, testified his studies and the studies of others indicated the size of the hymenal opening in girls from birth to age 13 ranges from a pinpoint to four millimeters. Among girls who have been sexually abused, the opening is larger than four millimeters. Dr. Elghammer cited studies which indicated the size of the hymenal opening is an accurate predictor as to whether child sexual abuse has occurred. Dr. Elghammer stated after sexual abuse has ended, the hymenal opening reverts to the normal size of four millimeters or less.

On April 23, 1985, Dr. Elghammer conducted a physical examination of M.F. and took an oral history from her. She informed the doctor that her uncle "took off his clothes and my clothes and laid on top of me and put his thing in my thing." M.F. told the doctor that it had happened once three years ago and twice 1 1/2 years ago. Dr. Elghammer measured the hymenal opening of M.F. and it measured eight millimeters. He testified this finding was consistent with sexual abuse.

M.F. testified she was 12 years old and lived with her mother, father, and two brothers. Defendant is her father's brother. Defendant never lived with her family but occasionally stayed at their home. He would sleep upstairs in the same room with M.F. and her two brothers. Her brothers had bunk beds and she had her own bed. When defendant stayed, he would baby-sit the children. Occasionally, defendant stayed as long as two or three weeks.

M.F. testified that when she was in Ms. Davis' kindergarten class, defendant baby-sat her and her two brothers while her parents went to the license bureau. Defendant gave her brothers money and sent them to the store. While they were gone, defendant came into her bedroom while she was changing clothes. Defendant threw her down on the bed and began playing with her like they were on a trampoline. When they stopped, defendant asked her to take off her underwear and M.F. refused. Defendant then took off her underwear and all of his clothing. Defendant got on top of M.F. and began going up and down, putting his penis in her vagina. M.F. testified it hurt and she told him to stop. Defendant did not stop until M.F.'s brothers returned. M.F. testified this recurred once every night while defendant was staying with them.

M.F., who repeated the first grade, did not tell anyone about what had occurred until she was in the second grade. She told a friend of hers, who went home and told her mother. The mother called the school nurse, Ms. Tedrick, who questioned M.F. about it. M.F. testified she told Tedrick about the first time it had happened. M.F. did not remember the last time it had happened.

When asked at what age this activity first occurred, M.F. testified, "last time I said five or six but I meant to say four." M.F. testified she did not remember it happening sometime after Easter. She testified it occurred the most when she was in Ms. Trask's first-grade class for the second year. M.F. did not remember testifying at the first trial that she had talked to a policeman and told him that it had happened about three times. Judicial notice was taken of inconsistencies in M.F.'s testimony between the first and second trial.

Claire Kirts, M.F.'s mother, testified defendant is her husband's brother and had been M.F.'s favorite uncle. Defendant was also a frequent overnight visitor in their home. They lived in a two-bedroom home and, until M.F. was in first grade, she shared an upstairs bedroom with her two brothers. The boys slept in bunkbeds, while M.F. had her own bed. Even after having been given her own room, M.F. would often prefer sleeping in her brothers' room. M.F. would sometimes sleep with defendant in the boys' room when he spent the night.

Kirts testified M.F. was in Ms. Trask's first grade for both the 1982-83 and the 1983-84 school years. M.F.'s school work was very poor. She preferred socializing with younger children and would mother them. Kirts testified after defendant no longer came to their home, M.F.'s grades improved and she started acting more her own age. She also socialized with children more her own age.

A stipulation was entered admitting the testimony of police officer Robert Cannon from the first trial. According to this testimony, Officer Cannon called defendant in for questioning concerning this charge and defendant denied the allegations.

A stipulation was also made to admit the testimony of Nancy Tedrick from the previous trial. Tedrick, the school nurse at Catlin Grade School, called eight-year-old M.F. into her office as a result of a telephone call from a parent on April 22, 1985. Tedrick asked M.F. whether or not she had told something to her friends about her uncle. M.F. told Tedrick that while they were alone in her home, defendant had come into her bedroom while she was changing clothes, took her pants off, and put his "humper" between her legs. M.F. indicated this act had occurred near Easter. At first, Tedrick thought M.F. was referring to the most recent Easter, but when Tedrick asked M.F. about this, M.F. responded "No, it happened when I was in Ms. Trask's room." Tedrick testified M.F. had spent both the 1982-83 and the 1983-84 school years in Ms. Trask's room. M.F. indicated to Tedrick that the incident she was referring to was the most recent incident, but that other incidents had occurred. Tedrick testified M.F. was very matter of fact and unemotional in describing these events to her.

Mary Lou Cooly testified she is a therapist in the sexual abuse and neglect program at the Center for Children's Services in Danville. She has been employed with the center for four years and works with children who have been abused or neglected and their families. Cooly first began working with M.F. in November 1985. M.F. was brought to the center because she was displaying self-destructive behaviors, such as pulling her hair, biting her nails, and failing in school. When Cooly first met M.F., M.F. was withdrawn and lacked self-esteem. M.F. was having problems communicating with people, did not appear to trust anyone, and was doing poorly in school. Cooly stated these behaviors are often indicative of a child having been sexually abused. Cooly also attributed M.F.'s tendency to associate with younger children as being consistent with the behavioral indicators of a victim of sexual abuse, but stated such behavior could also be a...