People v. Martinez ( 2020 )

2020 IL App (2d) 190285-UNo. 2-19-0285
Order filed June 30, 2020
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).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kane County.
)
Plaintiff-Appellee, )
)
v. ) No. 16-CF-152
)
MICHAEL MARTINEZ, ) Honorable
) Donald J. Tegeler,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE JORGENSEN delivered the judgment of the court.
Justices Hutchinson and Hudson concurred in the judgment.
ORDER
¶1 Held: The trial court did not abuse its discretion in admitting the section 115-10
statements at trial. Also, the evidence was sufficient to convict, and the indictment
and the report of proceedings were sufficient to protect defendant against double
jeopardy. Affirmed.
¶2 Following a bench trial, the court found defendant, Michael Martinez, guilty of predatory
criminal sexual assault of a child under age 13 (725 ILCS 5/11-1.40(a)(1) (West 2014)) and
sentenced him to nine years and six months in prison. While the court could not find sufficient
evidence of anal penetration, it found that, at a minimum, defendant, then age 26, touched his penis
against the buttocks of G.E., then age 8, for the purpose of sexual gratification. G.E. spoke of the
2020 IL App (2d) 190285-Uincident with her mother, Rita Gariti, and an investigator at the Kane County Child Advocacy
Center, David Berg. After conducting two separate hearings pursuant to section 115-10 of the
Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-10 (West 2014)), the trial court ruled
that Gariti and Berg could testify to some, but not all, of G.E.’s statements to them.
¶3 On appeal, defendant argues that the trial court erred in admitting the section 115-10
statements, because the statements were inconsistent with one another and, therefore, were not
sufficiently reliable. For example, G.E. told Gariti that the abuse occurred on multiple occasions,
but G.E. told Berg that the abuse happened once. G.E. told Gariti that defendant hurt her
physically, but G.E. told Berg that defendant did not hurt her physically. We reject defendant’s
argument, because the alleged inconsistencies did not become apparent until the second section
115-10 hearing, and the transcripts from the second section 115-10 hearing are not included in the
appellate record. Therefore, pursuant to Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92 (1984), we
must presume that the court properly addressed these inconsistencies, if they were even raised at
that time. In any case, these inconsistencies were addressed at trial, and they were part of the
reason that defendant was acquitted of the charge alleging anal penetration.
¶4 Separately, defendant argues that the evidence was insufficient to convict, because G.E.’s
testimony and out-of-court statements contained inconsistencies and because the State did not
prove that defendant acted for the purpose of sexual gratification. Defendant also argues that the
indictment was insufficient to protect him from being tried again for the same conduct. We reject
defendant’s arguments and affirm.
¶5 I. BACKGROUND
¶6 This case involves a 2014 sexual abuse incident between defendant and G.E. As an
overview, defendant, who was the boyfriend of G.E.’s paternal aunt, lived in the home of G.E.’s
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2020 IL App (2d) 190285-Upaternal grandparents. Every Saturday afternoon, when her parents worked, G.E. and her brother,
then age 2, went to her grandparents’ home. On at least one of those Saturdays, defendant asked
G.E. to come to his bedroom, which was located upstairs, and he proceeded to abuse her. A female
cousin, M.B., then age 3, was also in the room. G.E. later told her mother of the abuse. Her mother
filed a police report, prompting G.E.’s interview with Berg.
¶7 In June 2016, the State charged defendant by way of a four-count indictment. Count I
alleged predatory criminal sexual assault of a child (720 ILCS 5/11-1.40(a)(1) (West 2014)), in
that defendant committed an act of contact, however slight, between his penis and the victim’s
buttocks, for the purpose of sexual gratification. Count II also alleged predatory criminal sexual
assault of a child, but pleaded that defendant committed the act of anal penetration. Count III
alleged aggravated criminal sexual abuse (720 ILCS 5/11-1.60(c)(1)(i) (West 2014)), in that
defendant knowingly committed an act of sexual conduct with a child under age 13 when he placed
his penis on her buttocks. Count IV also alleged aggravated criminal sexual abuse, but pleaded
that defendant placed his mouth on the victim’s buttocks. All counts alleged that the conduct
occurred between April 1, 2014, and June 12, 2014.
¶8 A. Section 115-10 Hearings
¶9 Prior to trial, the court conducted two section 115-10 hearings. First, on February 23, 2018,
the court conducted a hearing to determine whether G.E.’s out-of-court statements to Berg would
be admissible at trial. Berg would testify to his video-taped interview with G.E. Defendant did
not object to the admission of the video. However, he objected to the admission of illustrative
exhibits and corresponding portions of Berg’s testimony. Specifically, the State sought to admit
the black-and-white anatomical drawings that Berg had used during the interview. During the
interview, Berg used the drawings to clarify G.E.’s statements. He asked her to draw a circle
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2020 IL App (2d) 190285-Uaround the male figure’s “period,” which was the term she used for a penis. He also asked her to
draw an “x” on the female figure where defendant had placed his penis. The “x” was placed over
the crack of the figure’s buttocks. Berg would testify that the drawings were the same ones that
he had used in the interview and that the drawings bore the markings that G.E. made during the
interview. Defendant argued that the drawings were prejudicial, because they depicted naked
persons, and it was unclear whether defendant had made skin-to-skin contact. The State disagreed,
arguing that the drawings merely helped to clarify to which anatomical parts G.E. referred. The
court noted that, generally, it found sufficient indicia of reliability to allow Berg to testify at trial
as to his interview with G.E. The court observed that Berg did not ask G.E. leading questions, and
it did not believe G.E. had a reason to make false accusations. However, the court would reserve
the question of whether the drawings would be admitted at trial.
¶ 10 Second, on April 16, 2018, the court conducted a hearing to determine whether G.E.’s out-
of-court statements to Gariti would be admissible at trial. The transcripts from that hearing are
absent from the record. In a written order, the court admitted some of G.E.’s statements to Gariti
but excluded others. Admitted statements included those pertaining to defendant’s alleged abuse
of G.E., such as pulling down her pants and touching her buttocks. Excluded statements included
those pertaining to defendant’s alleged acts of oral sex on both G.E. and M.B., an incident wherein
defendant allegedly blindfolded both G.E. and M.B. and put dog biscuits in their mouths, promises
made by defendant to G.E., and M.B.’s statements to G.E. However, G.E. herself would be able
to testify to the alleged acts of oral sex and blindfolding.
¶ 11 B. Trial
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2020 IL App (2d) 190285-U¶ 12 On December 17, 2018, the trial court conducted the bench trial. The only witnesses to
testify to the alleged abuse were G.E., Berg, and Gariti. We begin with Berg.
¶ 13 1. Berg
¶ 14 Berg testified that he has conducted “thousands” of child interviews. He worked with
children from 1976, when he began working as a youth corrections officer, until 2015, when he
retired. He spent the last 22 years of his career as an investigator for the Child Advocacy Center.
He has attended numerous training seminars on how to interview children. He finds that the key
is not to suggest any answers. He also uses anatomical drawings to make sure that he understands
the terminology that the child uses.
¶ 15 The State played Berg’s video-taped interview with G.E., and defendant did not object. In
the interview, Berg asked G.E. a series of questions about defendant, such as defendant’s
relationship to the family and where defendant lived. When Berg asked G.E. if there was anything
else she wanted to tell him about defendant, G.E. said, “He put his period in my butt,” and “He
keeps on rubbing me and [M.B.’s] butt and we told him to stop and he wouldn’t stop.” According
to G.E., defendant did not say anything during the abusive act. The abuse occurred “probably”
one month prior to the interview. Defendant asked G.E. to go upstairs to his room to play “Walking
Dead.” She liked “some of that stuff,” so she went to his room. M.B. was in the room, too.
“[M.B.]’s always with me.” Later, on a different day, G.E.’s father asked G.E. whether defendant
had abused her, and G.E. told him no. Later that evening, G.E. told her mother that defendant had
abused her. G.E. explained, “I don’t [inaudible] telling my dad. I like telling my mom.”
¶ 16 As to whether defendant touched G.E. on her skin, G.E. answered:
“G.E.: Oh, I forgot to tell you. He kisses me and [M.B.’s] butt. I didn’t know at
first what was happening, but then I was embarrassed.
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2020 IL App (2d) 190285-UBERG: You say he kisses your butt?
G.E.: Yeah.
BERG: Does he kiss your butt on your clothes or on your skin?
G.E.: Skin.
BERG: What, how does he do, how is he able to kiss you on your skin?
G.E.: So we lay down and watch like T.V., right, and he goes behind us and then
he pulls down our pants and undresses us.
BERG: I’m sorry you had your hands up I can’t hear you.
G.E.: Um, we watch T.V.
BERG: Okay.
G.E.: And, like, he goes behind us, and then he kisses our butts.
BERG: What about, what happens to your clothes?
G.E.: Nothing.
BERG: How does he—you said he kisses you on your skin.
G.E.: Yeah.
BERG: Well, if you, do you have clothes on?
G.E.: Yeah.
BERG: If you have clothes on, how—
G.E.: He pulls down my pants.
BERG: He pulls them down, okay, okay. And, under your pants, are you wearing
anything else?
G.E.: Yeah.
BERG: What else?
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2020 IL App (2d) 190285-UG.E.: Underwear.
BERG: Does anything happen with the underwear?
G.E.: No.
BERG: Um. Okay, and then you say he put his period in your butt?
G.E.: Yeah.
BERG: Did you have clothes on or off when that happened?
G.E.: Clothes on.
BERG: On?
[G.E. nods yes.]
BERG: And, did anything happen to your clothes at all?
G.E.: No.
BERG: Did his period touch your butt on your skin or on your clothes?
G.E.: Skin.
BERG: On the skin. And yet how could he touch your butt on your skin if you had
clothes on?
G.E.: Same reason.
BERG: Which was?
G.E.: Like, we were watching T.V…. [voice trails off].”
BERG: Okay. And you said the same reason?
G.E.: Yeah.
BERG: Before you said that he pulled your pants down?
G.E.: Yeah, yeah, he pulled my…[voice trails off].”
¶ 17 As to whether defendant touched G.E. more than one time, G.E. answered:
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2020 IL App (2d) 190285-U“BERG: How many times has he touched your butt with his period?
G.E.: Once.
BERG: One time?
[G.E. grunts affirmatively].” (Emphasis added)
And,
“BERG: How many times has he kissed your butt?
G.E.: Once.
BERG: Once. Was it the same day that he touched your butt with his period or was
it a different day?
G.E.: Different.
BERG: Different day?
[G.E. nods yes.]” (Emphasis added.)
¶ 18 As to whether defendant caused her physical pain, G.E. answered:
“BERG: So, you said [defendant] put his period in your butt?
G.E.: Yeah. Just my butt, that’s it.
BERG: Okay, what did it feel like?
G.E.: Didn’t hurt.
BERG: Didn’t hurt?
[G.E. grunts in the negative].”
¶ 19 Finally, G.E. stated that defendant did not touch her anywhere other than her buttocks:
“Now, did his period touch you anywhere else? No;” “Is there any place else on your body that
he touched? No;” and “On the front part of the body, was there anything that was touched? No.”
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2020 IL App (2d) 190285-U¶ 20 After the video played, and over defendant’s objection, Berg explained the markings that
G.E. had made on the anatomical drawings during the interview.
¶ 21 During cross-examination, Berg recalled Gariti telling him that she waited two weeks to
file the police report.
¶ 22 2. Gariti
¶ 23 Gariti testified that her mother-in-law watched G.E. every Saturday afternoon. Gariti knew
defendant lived in the house, but she had no animosity toward him. She only knew him to say “hi
and bye.” Gariti learned of the possible abuse after talking to her husband. G.E., who had been
sitting in the living room with them, heard their conversation, and her demeanor changed. “She
was shaking, just hiding her face between the blanket, just very distressed, just not herself. She
looked like she was overwhelmed.” After witnessing G.E.’s change in demeanor, Gariti asked,
“Are you okay? What’s going on?” G.E. answered, “[Defendant] has been touching me, too, and
it hurts, and I want him to stop, and I am scared.” Specifically, G.E. told Gariti that defendant put
his “period in her butt.” Gariti understood “period” to mean penis. G.E. told her mother that
defendant pulled down her underwear. The abuse occurred in defendant’s room, and M.B. was in
the room when it happened. The State also asked:
“[STATE]: Did she talk about it happening just one time or more than one time?
Or did you even ask her that?”
[GARITI]: It happened more than one time. She told me that.”
¶ 24 G.E. also told Gariti that, during an episode of abuse, her brother walked in the room.
Defendant pulled up his underwear and pants. G.E. pulled up her underwear and pants, and she
took her brother downstairs. G.E. did not immediately tell an adult what had happened, because
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2020 IL App (2d) 190285-U“[s]he said she was scared, and she just didn’t understand what was going on.” Gariti filed a police
report the morning after G.E. told her of the abuse. G.E. then spoke to Berg within days of that.
¶ 25 During cross-examination, Gariti could not say whether she would be surprised to learn
that G.E. told Berg the abuse happened just once. She only knew that G.E. told her that the abuse
happened more than once. Also, she could not say whether she would be surprised to learn that
G.E. testified at trial earlier that day that defendant put just a dog biscuit in her mouth, not his
penis. She only knew that G.E. told her that defendant devised a “guessing game” wherein he
blindfolded G.E., first putting a dog biscuit in her mouth and then putting his penis in her mouth. 1
Gariti disagreed with Berg’s statement that she waited two weeks before reporting the incident to
the police.
¶ 26 3. G.E.
¶ 27 G.E. testified that her grandmother babysat her on Saturdays. Usually, she stayed
downstairs. However, defendant invited her to his room. M.B. was there, too. Defendant pulled
down G.E.’s pants and underwear and “put his penis in [her] butt.” This happened more than
once. G.E. did not tell her mother or another adult right away, because she was scared. One time,
her brother walked in the room. The State also asked:
“[STATE]: Besides putting his penis in your butt, did he do anything else to your
butt?
[G.E.]: I don’t think so.”
And,
1
The court had initially excluded these statements, but defendant opened the door when
questioning Gariti and also during G.E.’s testimony.
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2020 IL App (2d) 190285-U“[STATE]: Did defendant ever touch any other part of your body?
[G.E.]: He kind of touched me by my boob.”
¶ 28 During cross-examination, G.E. testified that she spoke with her mother and the assistant
State’s Attorneys before testifying, but they did not tell her what to say. Her mother told her to
tell the truth. Also, the attorneys allowed her to review her own statement to Berg by watching
the video. As to whether defendant touched G.E. on her skin, counsel asked:
“[DEFENSE]: [During the video interview], you said ‘nothing happened with my
underwear.’ Do you remember that?
[G.E.]: No.
[DEFENSE]: You don’t? If I showed you the video, would you remember? Would
that jog your memory?
[G.E.]: Maybe.
[DEFENSE]: [plays video] He asked you what happens with your clothes, and you
said ‘nothing.’
[G.E.]: Yes. But if you keep on playing it, I say more.
[DEFENSE]: [plays video] Okay. He just asked you if you had clothes on, and
you said ‘yes;’ correct?
[G.E.]: Yes. But he asked if [sic] on the skin, and I said ‘yes.’
[DEFENSE]: Okay. But you saw where he asked if you were wearing clothes, and
you said ‘yes?’
[G.E.]: Yes. Maybe I got confused for the question.”
¶ 29 As to whether defendant touched G.E. more than one time, counsel asked:
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2020 IL App (2d) 190285-U“[DEFENSE]: And you told [Berg] that [defendant’s] period touched your butt one
time?
[G.E.]: Yes, I did.
[DEFENSE]: And today, four years later, you are saying it happened many times?
[G.E.]: Yes.
[DEFENSE]: Did you ever tell [Berg] that it happened many times?
[G.E.]: No, but I told my mom.”
On redirect, G.E. explained that she felt more comfortable talking to her mom than to Berg,
“because like she is my mom.” G.E. also told Julie Pohlman, who worked at the Child Advocacy
Center, that it happened more than once.
¶ 30 As to whether defendant caused physical pain, counsel asked:
“[DEFENSE]: And you told [Berg] whatever [defendant] did to you it didn’t hurt;
right?
[G.E.]: I think, yes.
[DEFENSE]: Did [defendant] ever hurt you?
[G.E.]: Yes. Yeah.”
However, defendant did not cause G.E. to bleed or have trouble going to the bathroom. On
redirect, G.E. explained that defendant hurt her “like sexually wise.” Also on redirect, the State
asked G.E. what she meant by the phrase “in her butt”:
“[STATE]: Well you have a part of your butt where poop comes out. You know
that, right?
[G.E.]: Yeah.
[STATE]: Was it that part?
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2020 IL App (2d) 190285-U[G.E.]: I don’t think so.”
¶ 31 C. Trial Court Findings
¶ 32 The trial court found defendant guilty of counts I and III, predatory criminal sexual assault
of a child (penis-to-buttocks contact) and aggravated criminal abuse of a child (sexual conduct
based on penis-to-buttocks contact). As to count I, it explained:
“[Aside from the section 115-10 witnesses], [t]here is one witness who testified as
to the events that occurred. There is no question that there are some issues with that
witness, that being G.E. ***.
G.E. testified that this [penis-to-buttocks contact] happened on at least one
occasion. There is some question as to whether or not it happened on several occasions
based on the testimony I have heard. There is no question she testified it happened on one
occasion.
There is no question in this court’s mind and I find beyond a reasonable doubt that
the incident occurred between the penis of the defendant and the buttocks area of the
minor.”
¶ 33 As to count III, the court stated:
“Count III mirrors count I, except for that alleges sexual conduct, not contact. I
agree with the State that, since I found there was contact, I also find in this case that there
was conduct. *** I can’t think of any other reason why an adult male would place his penis
on the buttocks of a minor [eight] years old except for his sexual arousal.”
The court determined that count III would merge into count I.
¶ 34 As to count II, predatory criminal sexual assault of a child (anal penetration), the court
found defendant not guilty. It explained: “It is my finding that the contact was on the skin but did
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2020 IL App (2d) 190285-Unot penetrate anything.” (Emphasis added.) As to count IV, aggravated criminal sexual abuse
(mouth-to-buttocks contact), the court found defendant not guilty. It explained that the only
evidence supporting the charge came from the section 115-10 testimony, when G.E. told Berg that
defendant kissed her buttocks. G.E. did not testify to the occurrence, so the court could not find
defendant guilty beyond a reasonable doubt. Defendant filed an unsuccessful posttrial motion,
raising the same arguments he now raises on appeal.
¶ 35 II. ANALYSIS
¶ 36 On appeal, defendant argues that: (1) the trial court erred in admitting the section 115-10
statements; (2) the evidence was insufficient to convict, because G.E. gave inconsistent statements
and because the State failed to prove the element of sexual gratification; and (3) the indictment
was insufficient to act as a bar against a future prosecution arising out of the same conduct. For
the reasons that follow, we reject each of defendant’s arguments.
¶ 37 A. Section 115-10
¶ 38 Defendant argues that the trial court erred in admitting the section 115-10 statements.
Section 115-10 sets forth the following exception to the rule against hearsay statements:
“(a) In a prosecution for a physical or sexual act perpetrated upon or against a child under
the age of 13, *** including, but not limited to, prosecutions for violations of Sections 11-
1.20 through 11-1.60 *** of the [Code] *** the following evidence shall be admitted as an
exception to the hearsay rule:
(1) testimony by the victim of an out of court statement made by the victim that he
or she complained of such act to another; and
(2) testimony of an out of court statement made by the victim describing any
complaint of such act or matter or detail pertaining to any act which is an element
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2020 IL App (2d) 190285-Uof an offense which is the subject of a prosecution for a sexual or physical act
against that victim.
(b) Such testimony shall only be admitted if:
(1) The court finds in a hearing conducted outside the presence of the jury that the
time, content, and circumstances of the statement provide sufficient safeguards of
reliability; and
(2) The child or person with an intellectual disability, a cognitive impairment, or
developmental disability either:
(A) testifies at the proceeding; ***” (725 ILCS 5/115-10(a), (b) (West
2014)).
¶ 39 The State bears the burden to prove that the time, content, and circumstances of the
statements provide sufficient safeguards of reliability. People v. Zwart, 151 Ill. 2d 37, 43 (1992).
The trial court’s decision to admit evidence under section 115-10 will not be reversed absent an
abuse of discretion. People v. Williams, 193 Ill. 2d 306, 343 (2000). An abuse of discretion occurs
when the determination is arbitrary, fanciful, or unreasonable. People v. Becker, 239 Ill. 2d 215,
234 (2010).
¶ 40 Defendant argues that the trial court abused its discretion in admitting G.E.’s statements to
Berg and Gariti, because the statements were inconsistent with one another. If the statements were
inconsistent with one another, defendant urges, then neither statement contains sufficient
safeguards of reliability. Specifically, defendant points to three inconsistencies, those being
whether the contact: (1) involved G.E.’s bare skin; (2) occurred more than once; and (3) caused
physical pain. We agree with defendant that the relative consistency of a child’s out-of-court
statements speaks to the reliability of those statements. See Zwart, 151 Ill. 2d at 44 (when a child
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2020 IL App (2d) 190285-Umakes consistent out-of-court statements to two different adults, the content of those statements is
deemed more reliable).
¶ 41 Defendant’s argument fails, however, because it is not adequately supported by the record.
It is the appellant’s burden to prepare and submit the record to the reviewing court. People v.
Hughes, 229 Ill. App. 3d 469, 474 (1992). Any doubts arising from the incompleteness of the
record will be resolved against the appellant. Foutch, 99 Ill. 2d at 391-92. As such, in absence of
evidence to the contrary, we presume that the trial judge understood and properly applied the law.
People v. Alduino, 260 Ill. App. 3d 665, 671 (1994).
¶ 42 Defendant’s argument hinges on a comparison between the statements that G.E. made to
Berg (as aired at the February 23, 2018, section 115-10 hearing) and those that she made to Gariti
(as aired at the April 16, 2018, section 115-10 hearing). Any inconsistencies between the two
statements would not have become apparent until the second section 115-10 hearing. However,
the transcripts from that hearing are absent from the record. Therefore, we cannot be certain that
defendant did not already raise, and the court did not already address, these inconsistencies.
Alternatively, it is possible that defendant did not raise this issue below and, therefore, would have
forfeited it. We do know, from the court’s written order, that it chose to admit only portions of
G.E.’s statements to Gariti. The court, therefore, acted in a discerning manner when deciding to
admit the statements, and, in absence of evidence to the contrary, we must presume that it
understood the law and made the correct ruling.
¶ 43 In any case, from the record that we do have, we are not troubled by the ruling. The
inconsistencies noted by defendant are not so extreme as defendant would have this court believe.
First, inconsistencies regarding contact to the skin need not have precluded admission. When Berg
asked G.E. clearly and directly whether the contact occurred over clothes or on the skin, G.E.
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2020 IL App (2d) 190285-Uanswered “skin.” When Berg asked open-ended, ambiguous questions, such as “did anything
happen to your clothes?,” G.E. answered “no.” We understand that Berg was trying to avoid
leading questions. Still, it is unlikely that an eight-year-old child would understand the aim of the
question. (Also, as we will discuss, G.E. later explained at trial her reason for answering as she
did.) Second, inconsistencies regarding frequency need not have precluded admission. While
G.E. told Berg that defendant put his penis in her buttocks just once, she did tell him that, on a
different day, defendant kissed her buttocks. Thus, G.E. consistently maintained that the abuse
was not a one-time occurrence. Third, inconsistencies regarding physical pain need not have
precluded admission. G.E. told Berg that the penis-to-buttocks contact did not hurt. Both parties
seem to agree that G.E. meant no physical pain. G.E. told Gariti, in contrast, that the contact did
hurt. Admittedly, this is a legitimate inconsistency. Still, the court looks only to see whether there
are sufficient safeguards of reliability. This inconsistency, weighed against other positive indicia
of reliability, was not enough to preclude admission. The court was able to explore the statement
at trial, where the question of physical pain most directly informed the anal-penetration charge.
The court acquitted defendant of that charge. In sum, in the context of a bench trial, where the
trial court merely sought sufficient indicia of reliability for purposes of admission yet ultimately
discredited the statement that was most damaging to defendant, we see no sign of error.
¶ 44 B. Sufficiency of the Evidence
¶ 45 Defendant next argues that the evidence was insufficient to convict defendant of predatory
criminal sexual assault of a child. The Code defines the offense of predatory criminal sexual
assault of a child as follows:
“A person commits predatory criminal sexual assault of a child if that person is 17
years of age or older, and commits an act of contact, however slight, between the sex organ
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2020 IL App (2d) 190285-Uor anus of one person and the part of the body of another for the purpose of sexual
gratification or arousal of the victim or the accused, or an act of sexual penetration, and
*** the victim is under 13 years of age.” (Emphasis added.) 720 ILCS 5/11-1.40(a)(1)
(West 2014).
¶ 46 It is the State’s burden to prove every element of the offense beyond a reasonable doubt.
People v. Siguenza-Brito, 235 Ill. 2d 213, 224 (2009). When reviewing the sufficiency of the
evidence, we must ask if, after reviewing the evidence in a light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt. People v. Belknap, 2014 IL 117094, ¶ 67. We will not substitute our judgment for that of
the trier of fact in assessing witness credibility or assigning weight to the evidence. Siguenza-
Brito, 235 Ill. 2d at 224-25.
¶ 47 Defendant argues that, due to inconsistencies in G.E.’s testimony and out-of-court
statements, the State was unable to prove that defendant committed an act of contact, however
slight, between his penis and G.E.’s buttocks. Defendant also argues that, even if defendant
committed the act of contact, the State failed to prove that the contact was for the purpose of sexual
gratification. We address these arguments in turn.
¶ 48 In addition to the inconsistencies addressed in the prior section—skin contact, frequency,
and physical pain—defendant also points to G.E.’s trial testimony that defendant touched her
breast. Defendant further claims that G.E. is generally unreliable, as demonstrated by her tendency
to answer “I don’t know” to basic questions and her admission that she did not tell Berg the truth
regarding frequency.
¶ 49 We revisit our earlier discussion on certain inconsistencies, this time in light of G.E.’s trial
testimony. As to skin contact, the court reasonably determined that there was skin contact. Again,
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2020 IL App (2d) 190285-Uwhen asked a direct question, G.E. consistently maintained that defendant touched her on the skin.
She later explained at trial that the question, “what happened to your clothes?,” confused her. As
to frequency, G.E. explained at trial that she did not tell Berg the whole truth. She did not feel as
comfortable speaking with Berg and her father as she felt speaking with her mother. Four years
later, she was able to tell Pohlman, another female, that the version of events she told her mother
was the truth: defendant touched her more than once. As to whether defendant hurt her, G.E.
explained at trial that she meant that defendant hurt her “like sexually wise.” G.E. agreed that
defendant did not cause her to bleed or have trouble going to the bathroom. G.E. also stated that
defendant did not place his penis in the part of the buttocks that expelled waste, i.e., the anus. The
question of physical pain most directly informed the anal-penetration charge, and, as stated,
defendant was acquitted of that charge. Finally, as to whether defendant touched G.E. anywhere
other than her buttocks, G.E. testified at trial that defendant “kind of touched me by my boob.”
(Emphasis added.) Later, during cross-examination, G.E. testified that defendant did not touch
her on the front of her body. Admittedly, this is an inconsistency, but not a sharp one. A child
might not use the words “intentional” or “incidental,” but a child may testify to facts that support
the inference of one type of touch over the other. G.E. repeatedly stated that defendant touched
her buttocks, and he pulled down her pants when doing so. There, she described an intentional
touch. G.E. once stated that defendant “kind of” touched her “by” her boob. There, she described
an incidental touch. G.E. was, arguably, consistent in stating that defendant intentionally touched
only her buttocks.
¶ 50 Defendant complains that G.E. is generally unreliable. Indeed, G.E. answered “I don’t
know” to basic questions. She also admitted that she did not tell Berg the whole truth. Contrary
to defendant’s position, however, and viewing the evidence in a light favorable to the State, this
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2020 IL App (2d) 190285-Udoes not make G.E. a liar. G.E. was able to explain certain inconsistencies, and she did provide a
consistent account of other key details. G.E. consistently maintained that defendant touched his
penis to her bare bottom, that defendant did not talk during the incident, that the incident occurred
in defendant’s bedroom at her grandmother’s house, and that M.B. was in the room. The trial court
may have reasonably determined that G.E. was, overall, credible. The court acknowledged
weaknesses in G.E.’s testimony: “There is no question that there are some issues with *** [G.E.’s
testimony].” However, again, the court acquitted defendant of certain charges. G.E. “didn’t think”
defendant “did anything else” to her buttocks, and the court acquitted defendant of count IV
(mouth-to-buttocks contact). G.E. “didn’t think” defendant placed his penis in the part of her
buttocks that expelled waste, and the court acquitted defendant of count II (anal penetration).
Nevertheless, after observing G.E.’s demeanor and listening to the whole of her testimony, it
believed her fundamental assertion that, on at least one occasion, defendant touched his penis to
her bare bottom. “I find beyond a reasonable doubt that [an] incident occurred between the penis
of the defendant and the buttocks area of the minor.” We defer to the trial court’s credibility
determination.
¶ 51 We next address whether the State proved that defendant acted for the purpose of sexual
gratification. That a defendant acted for the purpose of sexual gratification may be inferred from
the evidence. In re Matthew K., 355 Ill. App. 3d 652, 655 (2005). When the defendant is an adult,
it may be easier to infer that certain types of contact to a person’s private areas were made for the
purpose of sexual gratification. Id.¶ 52 Here, G.E.’s testimony, which a rationale trier of fact could have believed, showed that
defendant, a 26-year-old man, initiated an intentional, non-incidental contact between his bare
penis and the bare bottom of an eight-year-old child when no other adults were present. There is
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2020 IL App (2d) 190285-Uno proper purpose for such contact. The only reasonable inference was that defendant initiated the
contact for the purpose of sexual gratification. As the court stated: “I can’t think of any other
reason why an adult male would place his penis on the buttocks of a minor [eight] years old except
for his sexual arousal.”
¶ 53 C. Double Jeopardy
¶ 54 Defendant challenges the sufficiency of the indictment. Defendant focuses only on the
indictment for counts I and III, each of which alleged predatory criminal sexual assault of a child.
Again, defendant was convicted of both of those counts, and count III merged into count I. The
sufficiency of the charging instrument is a question of law to be reviewed de novo. People v.
Smith, 259 Ill. App. 3d 492, 495 (1994).
¶ 55 Specifically, defendant argues that the indictment did not meet the requirements of section
116-2(c) of the Code, in that it did not bar a future prosecution arising out of the same conduct.
Section 116-2(c) provides:
“Motion in arrest of judgment. (a) A written motion in arrest of judgment shall be filed by
the defendant within 30 days following the entry of a verdict or finding of guilty.
Reasonable notice of the motion shall be served upon the State.
(b) The court shall grant the motion when:
(1) The indictment, information or complaint does not charge an offense, or
(2) The court is without jurisdiction of the cause.
(c) A motion in arrest of judgment attacking the indictment, information, or
complaint on the ground that it does not charge an offense shall be denied if the
indictment, information or complaint apprised the accused of the precise offense
charged with sufficient specificity to prepare his defense and allow pleading a
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2020 IL App (2d) 190285-Uresulting conviction as a bar to future prosecution out of the same conduct.”
(Emphasis added.) 725 ILCS 5/116-2 (West 2014)).
Defendant concedes that the indictment described the act or acts alleged to have been committed
by defendant with sufficient specificity to prepare a defense. Defendant argues, however, that the
indictment was insufficient to guarantee that a conviction resulting from said indictment would
bar a future prosecution arising out of the same conduct.
¶ 56 Defendant’s argument is unclear. He seems to contend that, because the indictment
contained a date range (April 1, 2014, to June 12, 2014), and, because G.E. testified that defendant
committed multiple acts during that period, defendant could, in the future, be charged with
additional offenses. He also seems to imply that, because the trial court found that the contact
happened at least once but did not rule out the possibility that the contact happened more than
once, defendant is subject to be re-tried for a charge of penis-to-buttocks contact occurring between
April 1, 2014, and June 12, 2014.
¶ 57 We reject these contentions. The State may provide a date range, rather than an exact date,
in an indictment for a child sex offense. See, e.g., People v. Albarron, 2018 IL App (1st) 151508,
¶ 22 (five-year range). That the State here provided a date range, and a narrow one at that, is of
no import. Also, a defendant may cite to the record in a prior prosecution to protect himself from
being placed in double jeopardy. People v. Stephenson, 2016 IL App (1st) 142031, ¶ 23.
¶ 58 Here, were the State to attempt to re-prosecute defendant for acts arising out of the same
conduct, he could easily point to the record in the instant case to protect himself from being placed
in double jeopardy. The court here acknowledged the possibility that the penis-to-buttocks contact
happened more than once. It found, however, that, regardless of whether the contact happened
once or more than once, defendant was guilty of at least one act of penis-to-buttocks contact (and
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2020 IL App (2d) 190285-Uwas acquitted of any and all acts of anal penetration and mouth-to-buttocks contact) during the
stated period. Defendant cannot be re-tried for alleged misconduct arising out of this act, because,
as any review of the record would show, his conviction already encompasses any and all such
contact occurring during the stated period.
¶ 59 Defendant’s reliance on Hughes, 229 Ill. App. 3d at 474, is misplaced. The defendant in
that case was found guilty of obstructing a peace officer. The court determined that the information
did not apprise the defendant of the precise offense charged—an oversight that is not at issue in
the current case. Id. The court also determined, without much discussion, that it was not clear
from the record—which was devoid of transcripts from the trial—whether a conviction based on
the information would bar a future prosecution arising out of the same conduct. Id. The instant
case does not involve a failure to apprise the defendant of the precise offense charged. Also, the
record in the instant case, which does contain the trial transcripts (albeit not the second section
115-10 hearing transcripts), establishes that a conviction based on the indictment would bar a
future prosecution. Hughes is simply not analogous to the instant case.
¶ 60 As we have already rejected defendant’s argument, we will not address the State’s point
that, should it attempt to charge defendant for acts of sexual misconduct occurring during the stated
period, it would have a difficult time meeting joinder requirements.
¶ 61 III. CONCLUSION
¶ 62 For the reasons stated, we affirm the trial court’s judgment.
¶ 63 Affirmed.
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