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  "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARVIN WILLIAMS, Defendant-Appellant",
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    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARVIN WILLIAMS, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "JUSTICE LORENZ\ndelivered the opinion of the court:\nAfter a jury trial, defendant Marvin Williams was convicted and sentenced for aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12\u201414(b)(1)). Defendant now appeals and we address the following issues: (1) whether admission of the victim\u2019s alleged hearsay testimony amounted to plain error; (2) whether defendant was denied effective assistance of counsel; (3) whether a witness improperly testified to a prior consistent statement; (4) whether the victim\u2019s testimony that she and defendant had intercourse previously was inadmissible evidence of other crimes; (5) whether the trial judge improperly considered a victim impact statement prepared by the victim\u2019s mother when sentencing defendant; and (6) whether defendant\u2019s sentence was an abuse of discretion. We affirm.\nThe State tried defendant for one count of criminal sexual assault and one count of aggravated criminal sexual assault for an incident that occurred on April 18, 1986. (Ill. Rev. Stat. 1985, ch. 38, pars. 12\u2014 13(a)(1), 12\u201414(b)(1).) The aggravated criminal sexual assault indictment was based on the fact that defendant was over the age of 17 and the victim was under the age of 13. The criminal sexual assault indictment was based on the use or threat of force.\nPrior to trial, defendant moved to prohibit the State from introducing the victim\u2019s testimony that defendant had intercourse with her for a period of two years. The trial judge denied the motion.\nThe victim, A.F., who was 11 years old, testified that it was her responsibility to pick up her five-year-old cousin from her aunt\u2019s apartment and take him to school. Defendant lived with her aunt and was her cousin\u2019s father.\nOn April 18, 1986, at approximately noon, A.F. went to her aunt\u2019s apartment building to pick up her cousin. Defendant met A.F. downstairs and told her that her cousin was not home. Defendant gave A.F. some money and sent her to buy potato chips. When she returned, defendant and A.F. went to his apartment to get some newspaper and then they went to a nearby apartment building. On a stairway landing, defendant laid out the newspaper and told A.F. to take off her pants. When A.F. refused, defendant told her to trust him because he knew what he was doing. Defendant pulled down A.F.\u2019s pants and underwear and laid her down on the newspaper. He pulled down his pants, laid on top of her, and put his penis in her vagina. During the act, A.F. saw her friend Terrell Anderson and two other boys walking up the stairway. When defendant saw them, he pulled his pants up and barked like a dog. The boys ran away. Defendant and A.F. left the building, and he gave her 40 cents and told her to go to school.\nA.F. went to school and did not tell her teacher or her friends what happened. After school, she went to her grandmother\u2019s apartment. A.F.\u2019s mother was there with a family friend, Greta Conner, and they spoke with A.F. A.F.\u2019s mother asked A.F. the name of the boy or the man. A.F. also testified that before she told her mother who he was, her mother hit her two or three times on the arm. After a half hour, A.F. \u201ctold her it was [defendant].\u201d Defendant did not object to this testimony.\nA.F. testified that defendant had intercourse with her for approximately a one-year period and generally it would always occur at her aunt\u2019s apartment but once it occurred at her grandmother\u2019s apartment. A.F. testified that she did not tell anyone during that time because defendant said her mother and her aunt would hate her and her mother would beat her.\nAnderson testified that on April 18, 1986, he was with two friends and saw defendant on top of A.F. on the stairway landing. When defendant saw him, defendant zipped up his pants and barked like a dog. A.F. pulled up her pants. After Anderson ran away, he saw defendant and A.F. run out of the apartment building. Later that day, Anderson told his mother and her friend, Conner.\nConner testified that on April 18, 1986, she was at her sister\u2019s apartment with her sister, Anderson, and his mother. After a conversation with Anderson, Conner went to A.F.\u2019s grandmother\u2019s apartment. Conner had a conversation with A.F.\u2019s mother and was present during a conversation between A.F. and her mother.\nJ.F., A.F.\u2019s mother, testified that in April of 1986, defendant was her sister\u2019s live-in boyfriend. At that time, A.F. was 10 years old. In the afternoon of April 18, J.F. was at her mother\u2019s apartment, where she had a conversation with Conner. J.F. then had a conversation with A.F. while Conner and J.F.\u2019s sister were present. J.F. asked A.F. what happened but A.F. would not tell her. They spoke for a half hour, and during that conversation, J.F. hit A.F. once. Later that day, J.F. took A.F. to various hospitals.\nDr. Anthony Dekker, qualified as an expert in evaluating child sexual abuse, testified that on April 19, 1986, he examined A.F. Dekker\u2019s physical examination of A.F. revealed vaginal trauma which was consistent with recent and chronic penile penetration. Also, A.F. had trichomonas which in Dekker\u2019s opinion was transmitted by sexual contact. A.F. told Dekker that a man put his penis inside her, and when she was asked where, A.F. pointed to her vaginal area. A.F. said it happened on previous occasions. Dekker testified that A.F. told him the man\u2019s name.\nDefendant testified he was 42 years old and A.F.\u2019s aunt was his girl friend. At approximately noon on April 18, 1986, he was at his girl friend\u2019s apartment with her and their son. He left the apartment at approximately 12:30 p.m. with his sister. He denied ever having intercourse with A.F.\nThe parties stipulated that if a person identified as M. Lewis was called to testify, she would state that she was a social worker and on April 22, 1986, she interviewed J.F. In her report, Lewis stated that J.F. said, \u201cI had to beat [A.F.] to get her to tell me who it was that messed with her.\u201d\nThe parties also stipulated that defendant was convicted of misdemeanor theft on May 7,1982.\nThe jury found defendant guilty of criminal sexual assault and aggravated criminal sexual assault. Defendant\u2019s motion for new trial was denied.\nAt the sentencing hearing, the State offered a victim impact statement prepared by J.F. pursuant to section 6 of the Bill of Rights for Victims and Witnesses of Violent Crime Act (Ill. Rev. Stat. 1985, ch. 38, par. 1406). Defendant objected, stating:\n\u201c[T]he statute says it\u2019s a victim impact statement. I know this has been expanded to include the families, but based upon this, it\u2019s hearsay on hearsay on hearsay. Some of the things that allegedly [J.F.] is saying like for instance, what a teacher told her about her daughter and that she\u2019s now put in this report.\n***\nI think many of these statements in here are just broad allegations or generalizations which should not be considered by the court in sentencing.\u201d\nThe trial court overruled defendant\u2019s objection. The State indicated that J.F. believed it was in A.F.\u2019s best interest that A.F was not present at the sentencing hearing. The State also indicated A.F. was receiving counseling.\nIn sentencing defendant, the trial judge relied on defendant\u2019s 1967 and 1971 convictions for indecent liberties, the young age of the victim, and his concern that defendant could abuse other children. The judge sentenced defendant to the maximum term of 30 years\u2019 imprisonment.\nOpinion\nDefendant argues A.F.\u2019s testimony that she told her mother defendant had intercourse with her was inadmissible hearsay. When asked what she told her mother, A.F. testified that she \u201ctold her it was [defendant].\u201d\nConceding that he did not object to the testimony at trial and did not include the issue in his post-trial motion, defendant urges this court to review the issue under Supreme Court Rule 615(a) (134 Ill. 2d R. 615(a)), which allows review of plain errors or defects affecting substantial rights even though the issue was not raised in the trial court. When the evidence at trial was closely balanced or the alleged error was of. such magnitude that defendant was denied a fair trial, the reviewing court may consider errors which were not raised in the trial court. (People v. Walker (1985), 109 Ill. 2d 484, 488 N.E.2d 529.) In this case, however, the evidence presented at trial, which included A.F.\u2019s testimony, an eyewitness\u2019 testimony, and medical evidence, overwhelmingly established defendant\u2019s guilt. Further, the alleged error was insignificant in light of the evidence presented and did not deny defendant a fair trial. Accordingly, the admission of the alleged hearsay testimony was not plain error.\nAfter oral argument in this case defendant was granted leave to file a supplemental brief raising the issue that he was denied effective assistance of trial counsel. Defendant contends that he was prejudiced because his trial attorney did not object to A.F.\u2019s alleged hearsay statement that she told her mother defendant had intercourse with her.\nIssues not raised in appellant\u2019s brief are considered waived on appeal (134 Ill. 2d R. 341(e)(7)); however, as previously stated, a reviewing court can consider issues that rise to the level of plain error (134 Ill. 2d R. 615(a)).\nTo establish a claim of ineffective assistance of counsel, counsel\u2019s performance must have been seriously deficient and there must be a reasonable probability that defendant would have been found not guilty had the professional errors not occurred. (People v. Jennings (1986), 142 Ill. App. 3d 1014, 492 N.E.2d 600.) \u201c[W]here the declarant is available in court or there is an opportunity to ascertain the veracity of the testimony by cross-examination, there is no hearsay problem.\u201d (Jennings, 142 Ill. App. 3d at 1027, 492 N.E.2d at 608.) The failure to object to such testimony does not support a claim of ineffective assistance of counsel. Jennings, 142 Ill. App. 3d 1014, 492 N.E.2d 600.\nAs noted previously, defendant claims that A.F.\u2019s testimony that she \u201ctold her [mother] it was [defendant]\u201d was hearsay. Such testimony did not present a hearsay problem because A.F. was on the witness stand and subject to cross-examination. Further, based on the overwhelming evidence against him, there is no reasonable probability that if defendant had raised an objection, he would have been found not guilty. Therefore, defendant\u2019s argument that he was denied effective assistance of counsel is without merit.\nDefendant also seeks review of another issue as plain error because he did not raise the issue in the trial court. Defendant claims that Anderson was allowed to testify to his prior consistent statement. Anderson testified that he saw defendant on top of A.F. on the stairway landing and that he later told his mother and Conner. His testimony did not reveal the substance of his conversation with them.\nGenerally, a witness may not testify to prior statements consistent with his trial testimony unless there is a charge that the witness\u2019 testimony was recently fabricated or he has a motive to testify falsely. (People v. Harris (1988), 123 Ill. 2d 113, 526 N.E.2d 335.) In this case, however, because Anderson did not testify as to the substance of his conversation, there was no testimony of a prior consistent statement.\nDefendant next argues that the trial judge improperly admitted evidence of other sexual acts between defendant and A.F. for which defendant was not charged. At trial, A.F. testified that defendant had intercourse with her for a period of one year prior to April 18, 1986.\nEvidence of crimes other than those defendant is charged with is inadmissible if relevant only to establish defendant\u2019s propensity to commit crime. (People v. Lindgren (1980), 79 Ill. 2d 129, 402 N.E.2d 238.) However, such evidence is admissible if it is relevant to establish knowledge, intent, motive, design, plan, or identification. (Lindgren, 79 Ill. 2d 129, 402 N.E.2d 238.) In cases involving indecent liberties (now aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12\u201414(b)(1))), evidence of sexual acts by defendant with the same child can be admitted to show the relationship of the parties and defendant\u2019s intent. People v. Richardson (1959), 17 Ill. 2d 253, 161 N.E.2d 268.\nIn Richardson, defendant was tried for taking indecent liberties with his seven-year-old daughter. In addition to testifying to the incident for which defendant was charged, the daughter also testified that two days after the incident, defendant again took indecent liberties with her. On appeal from his conviction, defendant contended evidence of other offenses was inadmissible. The supreme court stated that generally a defendant cannot be convicted of one offense with evidence that he committed another; however, an exception applied in indecent liberties cases. In such cases, evidence of separate offenses with the same child was admissible to show the relationship of the parties and the intent with which the act was done. The court found that the admission of the other offense against the daughter was admissible and defendant\u2019s conviction was affirmed.\nIn People v. Tannahill (1987), 152 Ill. App. 3d 882, 504 N.E.2d 1283, defendant was charged with one count of aggravated criminal sexual assault and two counts of indecent liberties with his daughter. The daughter, who was between 9 and 12 years old at the time of the incidents, testified that defendant sexually abused her three different times. She also testified that defendant sexually abused her at other times even though defendant was not charged for those incidents. Defendant was convicted and argued the evidence of other offenses was inadmissible. The appellate court found that evidence of defendant\u2019s prior sexual offenses with the same child was admissible to show the relationship and familiarity of the parties and defendant\u2019s intent, design, or course of conduct. Also, such evidence was admissible to corroborate the child\u2019s testimony.\nIn this case, defendant was charged with aggravated criminal sexual assault and criminal sexual assault against A.F. for an incident that occurred on April 18, 1986. A.E testified at trial that defendant had intercourse with her for approximately one year prior to that date. Based on Richardson and Tannahill, this evidence of defendant\u2019s prior offenses against A.F. was properly admitted to show the relationship between defendant and A.F., defendant\u2019s intent, and to corroborate A.F.\u2019s testimony.\nDefendant also argues that the trial court improperly considered a victim impact statement prepared by A.F.\u2019s mother when sentencing him. At the sentencing hearing, the State presented a statement from J.F., A.F.\u2019s mother, which explained the effect defendant\u2019s crime had on A.F. and herself. Defendant did not object to the fact that the victim impact statement was prepared by J.F. rather than A.F. and, therefore, we must consider whether plain error occurred. Also,- the victim impact statement was not included in the record on appeal.\nSection 6 of the Bill of Rights for Victims and Witnesses of Violent Crime Act (Ill. Rev. Stat. 1985, ch. 38, par. 1406) provides:\n\u201cIn any case where a defendant has been convicted of a violent crime *** and a victim of the violent crime is present in the courtroom at the time of the sentencing *** hearing, the victim upon his or her request shall have the right to address the court regarding the impact which the defendant\u2019s criminal conduct *** has had upon the victim. If the victim chooses to exercise this right, the impact statement must have been prepared in writing *** prior to the initial hearing or sentencing, before it can be presented orally at the sentencing hearing. The court shall consider any statements made by the victim, along with all other appropriate factors in determining the sentence of the defendant.\u201d\nThe parent of a victim \u201cwho is physically or mentally incapable of exercising such rights\u201d can exercise the victim\u2019s rights under the Act. (Ill. Rev. Stat. 1985, ch. 38, par. 1403(a)(3).) Whether a victim is mentally capable of preparing a victim impact statement depends on his age and his ability to communicate. People v. Van Ostran (1988), 168 Ill. App. 3d 517, 522 N.E.2d 851.\nFor his argument that the trial court improperly considered the victim impact statement prepared by J.F., defendant relies on People v. Rainey (1986), 149 Ill. App. 3d 327, 500 N.E.2d 602. In Rainey, on appeal from defendant\u2019s conviction for aggravated criminal sexual assault, an appellate court found it was improper to consider a victim impact statement prepared by the mother of a 12-year-old child. The child\u2019s testimony at trial was competent and coherent and there was nothing in the record indicating that the child\u2019s condition from the time she testified to the time of the sentencing hearing deteriorated to the point that she could not prepare the statement.\nIn People v. Reid (1987), 160 Ill. App. 3d 491, 513 N.E.2d 517, however, an appellate court declined to follow Rainey even though the victim also testified at trial and did not prepare the victim impact statement. In Reid, the parents prepared a victim impact statement for their seven-year-old child who testified at trial. On appeal from defendant\u2019s conviction for aggravated criminal sexual assault, defendant argued that the trial judge erroneously considered the statement prepared by the victim\u2019s parents because the victim was competent to testify at trial. The appellate court stated that it was proper for the trial judge to consider the statement even though there was no showing that the child was incapable of preparing it. The court distinguished Rainey because in that case the child was 12 years old and more likely to be capable of preparing the statement. The court stated that \u201c[sjimply because the seven-year-old victim was found competent to testify and that she could relate the facts of what happened to her does not mean she is capable of preparing a written statement about the physical and emotional impact of the crime on her life.\u201d (Reid, 160 Ill. App. 3d at 494, 513 N.E.2d at 519.) The court found that it was not improper for the trial court to consider the victim impact statement prepared by the victim\u2019s parents.\nAt the sentencing hearing in this case, there was no specific showing that A.E was physically or mentally incapable of preparing the statement. Defendant did not raise an objection on that point at the time but now claims the victim impact statement was improperly considered.\nAlthough A.F. testified at trial, the record indicates that she may not have been mentally capable of preparing the victim impact statement. The record shows that A.F. was 11 years old at the time and under counseling as a result of defendant\u2019s abuse. Also, the State told the trial judge that J.F. believed it was in A.F.\u2019s best interest not to attend the hearing. Accordingly, there is support in the record that A.F. was not mentally capable of preparing the statement and, therefore, it was not plain error for the trial judge to consider the statement prepared by J.F. when sentencing defendant.\nLastly, defendant argues that his sentence was excessive. A sentence within statutory limits will not be overturned on appeal absent an abuse of discretion. Reid, 160 Ill. App. 3d 491, 513 N.E.2d 517.\nDefendant was convicted of a Class X felony (Ill. Rev. Stat. 1985, ch. 38, par. 12\u2014 14(c)), which carries a sentence of not less than 6 years and not more than 30 years (Ill. Rev. Stat. 1985, ch. 38, par. 1005\u20148\u20141(a)(3)). Defendant was sentenced to the maximum term of 30 years\u2019 imprisonment.\nDefendant argues his sentence was excessive and that the trial judge did not consider his potential to rehabilitate himself. However, defendant\u2019s record does not exhibit much potential for rehabilitation. He was 42 years old at the time of the crime and had two previous convictions for indecent liberties with a child. It was clear from the trial judge\u2019s remarks that he imposed the maximum sentence because defendant had two prior convictions for abusing minors and he wanted to prevent defendant from harming any more children. Although the sentence was harsh, it was not an abuse of discretion.\nPursuant to People v. Nicholls (1978), 71 Ill. 2d 166, 374 N.E.2d 194, we grant the State\u2019s request to assess the sum of $50 against defendant as costs for defending this appeal and pursuant to People v. Agnew (1985), 105 Ill. 2d 275, 473 N.E.2d 1319, we assess the sum of $25 as costs for oral argument.\nAffirmed.\nCOCCIA, P.J., and MURRAY, J., concur.",
        "type": "majority",
        "author": "JUSTICE LORENZ"
      }
    ],
    "attorneys": [
      "Randolph N. Stone, Public Defender, of Chicago (Z. Peter Tokatlian, Assistant Public Defender, of counsel), for appellant.",
      "Cecil A. Partee, State\u2019s Attorney, of Chicago (Renee Goldfarb, Paul Gliatta, and Catherine Bernard, Assistant State\u2019s Attorneys, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARVIN WILLIAMS, Defendant-Appellant.\nFirst District (5th Division)\nNo. 1\u201488\u20140212\nOpinion filed August 31, 1990.\nRandolph N. Stone, Public Defender, of Chicago (Z. Peter Tokatlian, Assistant Public Defender, of counsel), for appellant.\nCecil A. Partee, State\u2019s Attorney, of Chicago (Renee Goldfarb, Paul Gliatta, and Catherine Bernard, Assistant State\u2019s Attorneys, of counsel), for the People."
  },
  "file_name": "0495-01",
  "first_page_order": 517,
  "last_page_order": 526
}
