*1 ILLINOIS, Plaintiff-Appellee, THE THE STATE PEOPLE OF OF COLE, Defendant-Appellant. MARK Fourth District No. 4 — 89—0143 15,1990. February Opinion filed STEIGMANN, J., concurring. specially
Daniel D. Yuhas M. Jeffrey Bergschneider, Appellate and of both State Office, appellant. Defender’s of Springfield, for Walden, Attorney, Quincy (Kenneth Scott H. State’s of Boyle, R. Robert Biderman, Majors, J. Attorneys Appellate and James all of State’s Prosecu- Office, counsel), tor’s for the People.
JUSTICE opinion SPITZ delivered the of the court: trial, After a jury defendant was of ag convicted two counts gravated criminal (Ill. sexual abuse Rev. Stat. ch. 12— par. 16(d)) and to was sentenced concurrent three-year imprison terms of ment. Defendant appeals, arguing (1) the trial court erred in allowing testimony concerning hearsay statements made the victim alleged to acquaintance an to and her mother on the day following alleged the offense; (2) proved he was not guilty a reasonable doubt beyond be cause the alleged victim’s testimony concerning the offense nei was ther convincing clear and corroborated; nor substantially (3) and order restitution must be reversed because the amount restitu tion ordered was not on based actual losses and in expenses already curred, but expected on counseling expenses.
I. THE EVIDENCE trial, adduced at defendant’s According evidence conduct on charge 18, 1988, which the was based occurred on July at Sunday, defendant, S.L.M., which time in sexual conduct age engaged a girl in his home. 13-year-old baby-sitting Missouri, in family Grange,
S.L.M.’s lived La and mother S.L.M.’s wife, Cole, worked with defendant’s Mrs. at laundromat in Quincy, to Illinois. Mrs. Cole had mentioned S.L.M.’s mother that Mrs. Cole finding some her having difficulty baby-sitters young two eight were seven old. daughters, years who and S.L.M.’s mother then offered her to for Mrs. teenage daughters baby-sit two Cole and S.L.M., one of her on the agreed permit daughters, baby-sit 17, 1988, Mendon, Illi- Saturday, at the home in night July Coles’ nois.
Because of the of the at which Mrs. expected lateness hour Cole home, agreed and mother that S.L.M. return Mrs. Cole S.L.M.’s day, the Cole home. S.L.M. spend night following would at On family bowling in the afternoon and accompanied swimming Cole be al- evening. daughters in the Mrs. Cole’s then asked that S.L.M. home, their S.L.M.’s spend night an additional at and lowed agreed. mother daughters p.m. night,
The Cole went to bed about 9 on Sunday Cole at Defendant and S.L.M. p.m. and Mrs. retired about 11:30 talking room. Mrs. stayed up, watching living television Cole, in the bedroom off room and sleeping couple’s just living sofa, within feet of room dozed in out of living sleep the television to under- background being heard noise without able stand the words S.L.M. was to on the sofa. spoken. sleep bed,
S.L.M. testified that Mrs. went to defendant was when Cole on the and he started S.L.M.’s sitting opposite putting end sofa he legs. on his her feet them back. pulled away, put bare feet She but T- over to side. Then he her got up pulled He then and moved her *3 kissing lips. point and her on her chest and At some up shirt started breasts, from pulled blue-jean her bra down her her pulled away he off, over, fingers his into her va- pulled put shorts her underwear and conduct, gina. put testified that this from time defendant S.L.M. lasted an hour lap through fondling, in his about half her feet and time, him, she not scream or hit she During to an hour. this did but got him to not. She said that after a while defendant stop. told He did door, window, he looked out the and said saw and went toward up that a officer a on the corner. She said away about block police door, her he open looking defendant told not to and then started bed, He later to remained some kind. went and she papers an awake for about hour. Cole, following agreed to work the had morning,
Mrs. scheduled rather have S.L.M. get up very before she went to that than bed home, go Mrs. go in S.L.M. would home when early morning work, left for from When Mrs. Cole S.L.M. Cole returned work. defend- Monday, spent day For S.L.M. sleeping. still most alone with defendant. When daughters, and his but was never ant residence, D.M., knew, S.L.M. came Cole 13-year-old boy whom him He was the first happened. person told what had S.L.M. that p.m. Mrs. home around 1 About 10 p.m. she told. Cole came Cole, night, accompanied Mrs. her returned S.L.M. to daughters, her again mother at the laundromat in Mrs. Cole’s Quincy. daughters asked that S.L.M. another stay night, be allowed but S.L.M.’s left, mother said no. After Mrs. her daughters Cole and S.L.M. told her mother of the night morning. events Sunday early Monday
The victim’s mother testified to the baby-sitting arrangement with the Coles and their agreement stay that S.L.M. would at the Cole’s home Sunday, Sunday night, and She Monday during day. further testified that when Mrs. her daughters brought Cole and S.L.M. to the laundromat Mrs. Cole’s Monday night, daughters asked that S.L.M. be allowed to stay overnight again. She testified that face,” S.L.M. “kind of made a so she told them that S.L.M. could not stay. The victim’s mother testified that Mrs. Cole then mentioned the possibility S.L.M.’s baby-sitting on future weekends. She testified that after Mrs. left, said, Cole and her daughters “Mom, S.L.M. Ido and, have to back?” go when she looked at S.L.M. and asked why, S.L.M. said she did not go back, want to began and told her crying, “what had happened.”
Defendant took the stand in his own behalf and denied touching or kissing defendant, S.L.M. According to after his wife went bed on he Sunday night, left the house to call a man buying about a car. The Coles had no in telephone their home. returning, After he looked for some cards, time picked up things room, the front agot blanket S.L.M., some books for and went to bed. im- Defendant was peached awith misdemeanor theft conviction from 1978.
Defendant’s wife testified she had been married to defendant for three years. On the Sunday night question, her husband went to bed after she did. shortly He even came in and spoke to her several times after she went to bed. She saw nothing unusual happen night between her S.L.M., and, husband and she although was in bed just couch, around the corner from the she nothing going heard on in the front room other than defendant and S.L.M. watching television talking.
Mrs. Cole testified that S.L.M. was asleep got when she toup go morning. work in the She planned to take S.L.M. back to Quincy when she took her husband to work at 3 p.m. Cole, According to Mrs. S.L.M. declined a ride back with the couple when she took defendant *4 to work. She further testified that when she took S.L.M. back Quincy in laundromat Monday night, it was not her S.L.M.—and asked if daughters she could again the Coles’ at stay overnight —who residence. THE STATEMENT II. TESTIMONY CONCERNING VICTIM’S that argument first consider defendant’s statements
We D.M., at hours after boy, S.L.M. made to least seven 13-year-old after the al- offense, and to her mother almost hours alleged offense, leged hearsay they (1) qual- were inadmissible because do declarations, (2) independently as were not ad- ify spontaneous argues rule. The State complaint missible under corroborative error statements of S.L.M. to any concerning defendant has waived agree. D.M. or to her mother. We A. WAIVER OF ANY CLAIMED ERROR to
Defendant filed a motion in limine bar admission pretrial including D.M. and parties, S.L.M.’s statements to various third motion, presented At the on that defendant hearing S.L.M.’s mother. first, as com- qualify prompt the statements did not arguments: two second, is limited to testi- complaint testimony plaints; prompt occurred, of the act but does not include details complaint mony going of the act or identification. The State indicated it was not statements, then seek the admission of some of S.L.M.’s and the court ruled that D.M. and the victim’s mother could to the fact that a testify made, any could not other details. complaint testify had been but testified trial, complainant At no was when objection interposed on the af- happened” day or her mother “what had telling about D.M. addition, when com- objection interposed no ter the offense. point. on this same No detail questioned mother was plainant’s or her mother. from either S.L.M. S.L.M.’s was elicited complaint testify. D.M. did not issue about whether S.L.M.’s statements preserve any
To should complaints, objections as enough qualify prompt were timely failure of at trial this the stated basis. The have been made objections defendant’s trial counsel to raise about any to us to be inad telling happened” appears hardly S.L.M.’s “what had vertent; rather, failure to be due to his satisfaction counsel’s appears That defendant now ruling with the court’s on his motion limine. than differently who views the issue appeal has different counsel on object The failure of defendant to trial is of no moment. did counsel Further, pre the issue was not on appeal. at trial waives this issue 122 Ill. 2d motion. v. Enoch by post-trial served N.E.2d STATEMENTS IS NOT HEARSAY B. TESTIMONY VICTIM’S CONCERNING alleged merits, find no error the admission On the we *5 that testi- statements because concerning S.L.M.’s hearsay testimony as follows: not is defined mony hearsay. Hearsay was “ evidence, or in court written testimony evidence is ‘Hearsay court, being offered made such statement of a statement out therein, asserted show the truth of matters as an assertion to of the out-of- credibility its resting upon and thus for value Evidence, 225; see sec. Law of (McCormick, court asserter.’ Evidence, seq.)” et also, sec. 31.1 Handbook of Illinois Cleary, 116, 121, 28 Ill. 2d 190 N.E.2d People Carpenter (1963), v. made at in this case relates to statements testimony The issue had telling hap S.L.M. to her mother and to D.M. them “what by statement extrajudicial This does not contain pened.” testimony any In the statement contained therein. prove offered to the truth of stead, in the most description, alluding gen is a mere testimony such, of the As it is not subject eral terms to matter conversation. hearsay. III. SUFFICIENCY OF THE EVIDENCE case, argues consisting primarily
Defendant that the State’s his Defend- S.L.M.’s is insufficient to sustain convictions. testimony, convincing ant neither nor argues S.L.M.’s clear testimony witness, corroborated. The substantially disagree. complaining We excursion, girl on her first was from La 13-year-old baby-sitting Missouri, Grange, in a had no baby-sitting phone was house which Illinois, Mention, couple prior acquaint- for a with whom she had no are, unwavering. fondling ance. Her Acts of sexual by nature, and the of witnesses other than the victim private, absence should come as no the acts of in this surprise. Similarly, complained case would to leave no expected physical signs be abuse.
The verdicts here reflect the assessment of the credi jury’s witnesses, province a function within its as bility particularly All in the case ar being fact finder. the deficiencies State’s now on which gued appeal similarly argued jury actually were saw these A a con reviewing heard witnesses. court will reverse viction unless the evidence is so that a unsatisfactory improbable (See People as to the defendant’s remains. v. guilt reasonable doubt 173, 191; Yates (1983), 133 Ill. 2d see also Eyler 502, 518-19, 1369, 1377-78, denied (1984), Ill. 2d 456 N.E.2d cert. 836, 104 This is not such a 2364.) 466 U.S. 80 L. Ed. 2d S. Ct. case. IV. THE ORDER OF RESTITUTION the victim-impact
The in this case referred to presentence report ex- statement, which stated for S.L.M. was professional counseling months, pected listing “anticipated expenses” to take three to six four-year Defense counsel of a argued imposition $400 $500. increment of including term of an order of restitution as an probation, $500, the sentence. When the State asked for a restitution order restitution could not based on objected, arguing defense counsel be trial judge amounts not incurred the victim. The prospective yet money ordered the circuit clerk to withhold defendant’s bond $500 court indicated counseling. Although it could applied so that be $500, than would be re- counseling money that if the cost less *6 if a re- defendant, determining no time frame was fixed for funded to be fund should made. case, sufficiently
In a criminal order should be sentencing agent action the court or an require by certain so as to not further Here, affixed a defi the court to ascertain its the trial court meaning. restitution, not suf nite limit on defendant’s but order was upper it enforced without further judicial certain so that could be ficiently 924, 931, action. v. Nash 183 Ill. 3d 539 Compare People (1989), App. 822, 826. N.E.2d (Ill. that the on restitution statutory provision
We conclude Stat., 38, ch. an order of Supp., par. 5—6(g))permits Rev. 1988 1005— cases. In counseling expenses restitution for sex abuse prospective however, sentence, such an order order to for the of a provide finality (1) a maximum incorporate provisions specifying following: should in limit; (2) counseling proof expenses dollar a time frame for and curred, or the term of sentencing, probation within one e.g., year is that the court services probation imposed; (3) department where restitution; monitor and administer the probation payment office party may petition in the that a that either (4) dispute develops, event thereof; money being (5) the court for resolution when bond restitution, for a date when bond monies so any withheld use case, mat will be remitted to defendant. On the facts of this this used remand, court on ter of restitution can be resolved trial easily by provided. in accordance with the directions we have now IN SEX OFFENSE CASES V. STANDARD OF REVIEW disagree we with defendant’s opinion, As we stated earlier this S.L.M., is neither argument testimony complainant, that the special clear corroborated. The con- convincing substantially nor as we the evi- currence would have us abandon these tests review
997 these time to declare may it be dence in sex offense cases. While this done that it should be valid, we do not believe longer tests no court. and remanded with directions.
Affirmed LUND, J., concurs. STEIGMANN, concurring: specially
JUSTICE case, sepa- of this I write I with the fully agree disposition While that the of review utilized by to state views standard rately my thinking the current of our su- court is inconsistent with antiquated, court, and should be preme abandoned. BE
A.
THAT TESTIMONY OF VICTIM OF SEX OFFENSE
REQUIREMENT
EITHER
CORROBORATED OR CLEAR AND
SUBSTANTIALLY
BE
CONVINCING SHOULD
REPUDIATED
him
prove
In
the evidence was not sufficient to
arguing
doubt,
that the the com
guilty beyond
argues
reasonable
defendant
either
plaining
witness’
in a sex offense case must be
sub
tes
convincing
corroborated or clear and
and that S.L.M.’s
stantially
neither. In
cites
timony
support
argument,
of this
defendant
cases,
numerous
v.
72 Ill.
primary
being People
(1978),
ones
Secret
371,
285,
Ill.
(1986),
App.
2d
381 N.E.2d
v. Server
3d
1019,
842,
N.E.2d
cert. denied
U.S.
98 L. Ed. 2d
accurate,
419, 173, (1989), and more v. 133 Ill. 2d the recently People Eyler that Supreme arguments Illinois Court had occasion to consider “proof beyond sufficiently descriptive a reasonable doubt” was not the State’s burden of In court held that proof. Bryant, supreme Instructions, Criminal, the second of Illinois Pattern paragraph Jury That (2d 1981) longer paragraph- No. 3.02 ed. should no be used. that the in an circumstantial evidence case stating entirely evidence to of inno theory must be sufficient “exclude reasonable every and mislead cence”—was deemed the court to be both “obscure by 512, 113 Ill. 2d at at 420. ing.” Bryant, N.E.2d evidence, being en- defendant contended that the State’s Eyler, circumstantial, on his convic- tirely appeal was insufficient sustain of inno- tions it did not exclude reasonable every hypothesis because cence. The this and held supreme argument implicitly court rejected that henceforth there is to be but one standard of review regarding sufficiency the State’s evidence:
“The principles governing our review of defendant’s chal
lenge to the
sufficiency
evidence are well established and
were
set
recently
forth in People v. Phillips (1989), 127 Ill. 2d
499,
is,
509-10. It
course,
the jury’s function to determine
the accused’s guilt or innocence and this court will not reverse
a conviction unless the evidence is so improbable as to
a
justify
reasonable
doubt
defendant’s guilt. It is not this court’s
function to retry the defendant. The United States Supreme
Court has stated that ‘the relevant question whether,
is
after
viewing the evidence in the light most
prosecu
favorable to the
tion, any rational trier of fact could
found
have
the essential el
ements of the crime beyond a reasonable doubt.’
(Emphasis
original.) (Jackson v. Virginia (1979),
307, 319,
443 U.S.
61 L.
560, 573,
Ed. 2d
99 S.
2789;
Ct.
see also People v. Col
lins (1985),
106 Ill. 2d
261.) Moreover, it is for the
jury
weigh
credibility witnesses and to resolve conflicts or in
consistencies in their testimony. (Phillips, 127 Ill.
514.)
2d at
Applying these principles
bar,
to the case at
we
con
readily
clude that defendant’s convictions are not subject to reversal.”
Eyler,
These decisions are fully applicable court, issue before this which may be summarized as follows: in a case in which a sex offense charged, is there some requirement State, imposed upon in ad- dition to proving defendant guilty beyond doubt, a reasonable demonstrate either that the evidence is substantially corroborated that the victim’s is clear and convincing? upon Based I Bryant Eyler, there believe is not.
Before concluding that the valid, above standards are longer no I carefully origins. considered their I found that exercise to some- be what akin turning over rock and looking underneath.
Lord Hale is the earliest source of apparently aphorism “is an rape accusation to made easily be and hard to be proved, harder to be accused, defended tho by party ever so innocent.” (I Hale, M. Pleas of the Crown 635 This (1778).) eighteenth-century in sight adopted an early (3 Greenleaf, treatise on evidence S.
Evidence (4th 1857)) ed. and by two decisions of the Illinois Su §212 Court, preme Shirwin v. People (1873), 55, 58-59, 69 Ill. 590, 594,
Freeman Ill. 91 N.E. The rule that ultimately evolved from these decisions—that the ev- idence in a sex offense case must be substantially corroborated or the *8 arbi- entirely convincing clear and of the victim must be —is held nine- by sexist views of the archaic and and a reflection trary State supreme The of two attitudes teenth-century legal practitioners. (who, especially women courts in the mid- to late-1800's toward offenses) are victims of sex times, the exclusively those were almost decisions. following illustrated the by an appeal Carolina heard Court of North Supreme
In the her claimed a woman who brought by a divorce complaint from 59 N.C. Joyner (1862), v. (Joyner her. horse-whipped husband had for a di request of her granting In the trial court’s 322.) reversing vorce, following: the court stated the supreme man must Every to the husband. subject
“The wife must be household, unruly temper, if reason of an govern his her treats husband tongue, persistently an unbridled the wife all sense it, he not loses disrespect, only and he submits of the other of but loses the members self-respect, respect of marriage the incidents of the his ***. Such have been family the the of the human race. Unto beginning relation from husband, and he said, thy it is desire shall be to ‘Thy woman that the thee,’ Genesis, 16. It follows chap. shall rule over degree to use such a of force is gives power law husband herself know her to make the wife behave necessary at 325. place.” Joyner, N.C. Court denied the of Supreme petition Wisconsin (In of that court. sought
first woman who to be admitted to bar of 232.) ruling, re Motion 39 Wisc. In its the court Goodell following insights: fered the nineteenth-century “This is the first for admission of a female to the application of this court. And it just congratulation bar is matter for that it is made in of a favor whose character raises no lady personal objection: to be looked for something perhaps always women who forsake the of their sex for ours. ways ways * * * *** the female sex The law of nature destines and qualifies of our race and for for the and nurture of the children bearing their maintenance in of the homes of the world and custody women, inconsistent callings and honor. And all life-long love sex, their as is the pro- radical and with these sacred duties nature; from the order of law, fession of the are departures *** many treason it. There are voluntary, against and when The in life not for female character. profes- unfit employments of these. The surely peculiar qualities sion of law not one tender womanhood, its gentle graces, quick sensibility, its its its impulses, emotional delicacy, its its its susceptibility, purity, are feeling, surely of hard reason to sympathetic subordination *9 Wisc, Goodell, at 240- not for forensic strife.” qualifications is, in way, The rule that I would this court its own reject have still consti- to women as are the Women insulting quotations. above offenses, the tes- tute the of of sex and overwhelming majority victims sus- automatically no victim is held timony category other crime of of it “clear and “substantial corroboration” or that be pect, requiring time has come to rid in order to sustain a conviction. The convincing” the law of this anachronism. in this has been scrutinized testimony accomplices
Not even the 1014-15, 163 Ill. 3d App. fashion. Pace 299, 301-02, the following: N.E.2d this court stated or un-
“The of an either corroborated testimony accomplice, corroborated, a if the can sufficient to sustain conviction be a doubt. is convinced reasonable jury beyond [Citations.] a sufficient basis for conviction Whether such forms testimony such, a properly As it is goes weight evidence. the jury. function within the province [Citations.] it is often competent, is Although accomplice testimony The have been fraught problems. accomplice may with serious ill towards the accused. Conse- leniency or harbor will promised caution and with the utmost only accepted it should be quently, subjected highest scrutiny. [Citations.] is accomplice’s testimony that where an Defendants insist uncorroborated, conviction of truth.’ it must an ‘absolute carry language truth’ conviction of Although the ‘absolute [Citation.] testimony, prevailing in assessing accomplice has been used estab- accomplice testimony test is the uncorroborated whether a reasonable doubt. guilt beyond lishes the of defendant [Cita- is an testimony afforded such weight The and credibility tion.] issue the jury.” instruction regarding
I receive a juries special am are aware that Instructions, Crimi- Jury Illinois Pattern testimony. (See accomplice has chosen that once a nal, (2d 1981).) point jury ed. is My No. 3.17 uncorroborated upon (as guilty it to return a verdict based may) special obligation is under no accomplice, of an this court testimony “substantially corrobo- whether the State’s evidence determine convinc- was “clear and testimony the accomplice’s rated” whether only regard applicable are Those standards of review ing.” victim, any dope to some dealer happens rape woman who to be a his dealer. against dope who State’s fellow to turn evidence “flips” require I with the problem note that an additional parenthetically “clear testimony ment of the victim of a sex offense be a convincing” is itself state phrase is that “clear convincing” to prevail ment must in order proof of the burden the State meet cases, rights parental certain as the termination of types such (See child Ill. Rev. Stat. ch. involving neglect. cases abuse or court of of whether par. 29.) Consideration a review 802 — convincing” is the State already victim’s “clear when guilt beyond has the the defendant’s reasonable proving burden only appellate doubt to add likely process. confusion *10 ILLINOIS, Plaintiff-Appellee, THE THE PEOPLE OF STATEOF DAVIS,Defendant-Appellant. DWIGHT W.
Fourth District No. 4 — 89—0411
Opinion February filed