{ "id": 2533784, "name": "In re A.J.H., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. A.J.H., Respondent-Appellant)", "name_abbreviation": "People v. A.J.H.", "decision_date": "1991-03-08", "docket_number": "No. 2-90-0132", "first_page": "65", "last_page": "72", "citations": [ { "type": "official", "cite": "210 Ill. App. 3d 65" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "115 Ill. App. 3d 1038", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3558607 ], "pin_cites": [ { "page": "1043" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/115/1038-01" ] }, { "cite": "161 Ill. App. 3d 113", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3468232 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "125" }, { "page": "125" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/161/0113-01" ] }, { "cite": "443 U.S. 307", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6182418 ], "weight": 3, "pin_cites": [ { "page": "319" }, { "page": "573" }, { "page": "2789" } ], "opinion_index": 0, "case_paths": [ "/us/443/0307-01" ] }, { "cite": "106 Ill. 2d 237", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3138930 ], "weight": 2, "pin_cites": [ { "page": "261" }, { "page": "261" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/106/0237-01" ] }, { "cite": "133 Ill. 2d 286", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3260410 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "291" }, { "page": "291" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/133/0286-01" ] }, { "cite": "200 Ill. App. 3d 380", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2462527 ], "year": 1989, "pin_cites": [ { "page": "394" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/200/0380-01" ] }, { "cite": "199 Ill. App. 3d 330", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2467291 ], "pin_cites": [ { "page": "335" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/199/0330-01" ] }, { "cite": "201 Ill. App. 3d 166", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2594646 ], "weight": 3, "pin_cites": [ { "page": "185" }, { "page": "185" }, { "page": "185" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/201/0166-01" ] }, { "cite": "198 Ill. App. 3d 417", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2474401 ], "year": 1990, "pin_cites": [ { "page": "419" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/198/0417-01" ] }, { "cite": "201 Ill. App. 3d 830", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2592709 ], "year": 1990, "pin_cites": [ { "page": "834" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/201/0830-01" ] } ], "analysis": { "cardinality": 797, "char_count": 17686, "ocr_confidence": 0.714, "pagerank": { "raw": 3.0084622580468825e-07, "percentile": 0.853032551318629 }, "sha256": "e66113e05dc9a49a560015c957c2e042487a77fbce71561b17ccfde1eb957a62", "simhash": "1:91fb4628e72ea869", "word_count": 2980 }, "last_updated": "2023-07-14T22:48:57.765044+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re A.J.H., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. A.J.H., Respondent-Appellant)." ], "opinions": [ { "text": "JUSTICE INGLIS\ndelivered the opinion of the court;\nRespondent, A.J.H., a minor, appeals from an adjudication of delinquency (Ill. Rev. Stat. 1989, ch. 37, par. 805 \u2014 3(1)) based upon a finding by the trial judge that A.J.H. committed an act of aggravated criminal sexual abuse (Ill. Rev. Stat. 1989, ch. 38, par. 12 \u2014 16(c)(2)(i)) upon a five-year-old child for whom she baby-sat. On appeal, respondent raises the following issues: (1) whether respondent was adequately informed of the charges against her to enable her to prepare her defense; (2) whether the five-year-old complaining witness was competent to testify; (3) whether the hearsay statement of the complaining witness was properly admitted under section 115 \u2014 10 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 115 \u2014 10); and (4) whether respondent was proved guilty beyond a reasonable doubt of aggravated criminal sexual abuse. We reverse.\nOn June 19, 1989, the State filed a petition for adjudication of wardship charging respondent, a 13-year-old girl, with aggravated criminal sexual abuse. The petition alleged that, on or about a period of time from January through May 1989, respondent knowingly fondled the penis of B.H. for the purpose of her own sexual arousal. Respondent\u2019s attorney filed a motion to strike and dismiss the petition on the basis that the allegations as to the date were so vague and uncertain that she could not properly prepare a defense. Respondent\u2019s motion was denied, but a petition for a bill of particulars was permitted to be filed.\nIn the petition for a bill of particulars, respondent alleged that she sat for B.H. on approximately five occasions between January and May 1989, at different locations with different people being present. Respondent alleged that without more specific information, she would have to prepare defenses and witnesses to testify on her behalf for five or six separate dates of baby-sitting. The State filed a single-sentence response, alleging that the offense occurred on or about a period of time from October 1988 through May 1989, at the address of B.H.\u2019s grandparents. At the hearing on the petition for a bill of particulars, the trial court denied respondent\u2019s request for a more specific date and granted the State\u2019s oral motion to amend the petition for adjudication of wardship, alleging that the offense occurred sometime during October 1988 through May 1989.\nThe trial commenced on August 25, 1989. The first witness called by the State was B.H. The trial judge asked B.H. a few preliminary questions, which required him to identify numbers and colors. The judge then asked B.H. whether he knew what it meant to tell the truth and whether he could do so in court. B.H. responded affirmatively. The trial judge stated that she would not dispense an oath at that time, but requested the State to go into some credibility issues.\nThe prosecutor asked B.H. what his name was, his age, his birthday, and where he lived. B.H. was able to answer all of the prosecutor\u2019s questions. B.H. testified that if he did not tell the truth at home, his mother would yell at him and send him to bed; however, if he did not tell the truth at preschool, nothing would happen. B.H. said that he did not know what would happen if he told a lie to the judge.\nThe prosecutor then asked the trial court for B.H. to be qualified as competent to testify. The court reserved its ruling and permitted the State to examine B.H. regarding the allegations of the petition. B.H. identified respondent in court and stated that he knew her when he was three and five years old, but not when he was four years old. B.H. testified that respondent touched him where she was not supposed to while they were at B.H.\u2019s grandparent\u2019s house. However, B.H. could not remember where respondent touched him.\nThe prosecutor then requested permission for B.H.\u2019s mother to be present during B.H.\u2019s testimony and for that testimony to take place in chambers. Because the mother was scheduled to be called as a witness, the prosecutor agreed to call her first, without B.H. being present, and then resume B.H.\u2019s testimony afterwards in chambers. The trial court granted the prosecutor\u2019s request.\nB.H.\u2019s mother testified that she and B.H. lived with her parents until May 1989. Respondent baby-sat for her usually once a week from October 1988 until May 1989. On cross-examination, the mother testified that because B.H.\u2019s grandfather worked midnights, he was always in the house sleeping when respondent baby-sat.\nThe testimony of B.H. was then continued in the judge\u2019s chambers. The prosecutor asked B.H. whether he could show on a doll what respondent did to him. B.H. indicated that he could not and refused to hold the doll. When the prosecutor asked where respondent touched him, B.H. responded that he had forgotten.\nThe prosecutor then asked permission for B.H.\u2019s mother to sit next to B.H., which the trial court granted. With his mother beside him holding his hand, B.H. continued in his refusal to take the doll and indicated that he could not say where respondent had touched him. The prosecutor then asked for a continuance, which the trial court granted over respondent\u2019s objection. In granting the continuance, the trial judge noted that it was almost 5 p.m. on a Friday and B.H. had had a long day.\nThe trial resumed on Thursday, August 31, 1989, with the questioning of B.H. When the prosecutor asked B.H. to tell where respondent had touched him, B.H. responded \u201cMy private parts.\u201d B.H. agreed that by \u201cprivate parts,\u201d he meant his penis. The prosecutor handed B.H. the doll and asked him to show what respondent did to him. The prosecutor described that B.H. put his hand under the pants and underwear of the doll and moved his hand back and forth. Respondent\u2019s attorney stated that that was not what he saw B.H. do. The trial judge admitted that she was not sure what B.H. did, and so B.H. was asked to demonstrate it again. The judge noted that B.H. then put his thumb and middle finger in the penis area of the doll and moved them back and forth. The prosecutor then pulled the doll\u2019s pants down and asked B.H. to show where respondent had touched him. B.H. touched the penis area of the doll. The prosecutor asked B.H. to demonstrate, by touching his leg with his hand, exactly how long respondent allegedly kept her hand on his penis. The court noted for the record that B.H. did so for a time span of about four to five seconds. When asked whether respondent had said anything after-wards, B.H. stated that she had told him not to tell anyone.\nOn cross-examination, B.H. stated that he had not talked to anyone about his testimony since he first testified on Friday, August 25. B.H. specifically denied having met with Lake County sheriff\u2019s detective Richard Bilisko during the interim. B.H. testified that he has known respondent for seven or eight years and that she has baby-sat him for six, seven, or eight years, he did not know. B.H. admitted playing with two other children who touched his private parts. In particular, B.H. testified that a boy named Nathan, who lives across the street from his grandparents, bit him on his private part. B.H. opined that respondent was a good baby-sitter, but he stopped liking her when she tickled his private parts. B.H. did not know when respondent tickled him, but he thought it was when he was four or five years old.\nAt the conclusion of B.H.\u2019s testimony, respondent moved to strike his testimony because he had not been properly qualified. The trial court denied respondent\u2019s motion.\nThe State then called Lake County sheriff\u2019s detective Portia Wallace to testify under an exception to the hearsay rule provided in section 115 \u2014 10 of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 115 \u2014 10). Wallace explained that she met with B.H. on May 23, 1989, for approximately 45 minutes. Wallace stated that she began the interview by asking B.H. various questions to establish that he knew the difference between the truth versus a lie and pretend versus reality. Wallace stated that, thereafter, B.H. told her that his baby-sitter had tickled him in his penis area. B.H. demonstrated by pulling the pants and underwear down from an anatomically correct doll and tickling the doll on its penis. Wallace testified that B.H. told her that he had his pajamas on when this happened. B.H. further told her that no one else had done that to him. Wallace testified that the interview was cut short when she told B.H. that she was going to talk to respondent about what he said she had done; B.H. started crying and became hysterical, begging Wallace not to tell. Wallace was unable to determine from B.H. when the alleged incident occurred, except B.H. did say that it happened while he and his mother were living with his grandparents. The court then admitted Wallace\u2019s testimony over the objection of respondent.\nThe State\u2019s final witness was Lake County sheriff\u2019s detective Richard Bilisko. He testified that on May 18, 1989, he spoke with respondent at her school, along with respondent\u2019s assistant principal and Gay Viay, an investigator for the Department of Children and Family Services. Bilisko testified that respondent said that she had been B.H.\u2019s baby-sitter for approximately V-k to 2 years and that she usually baby-sat on Wednesday evenings from 6:45 p.m. to 9:30 p.m. and sometimes on Saturday. Bilisko stated that respondent had told him that when she baby-sat on Wednesday evenings, B.H. had already been bathed by his mother. After B.H.\u2019s mother left, B.H. and respondent usually watched television until approximately 8 p.m., and respondent would then prepare B.H. for bed. Respondent explained that that included tickling games, possibly reading a book, and then putting B.H. down in his bed. Bilisko testified that respondent denied having touched B.H. on any of his private parts.\nThe State then rested. Respondent moved for a directed finding, which was denied.\nRespondent testified on her own behalf. She stated that she is in the eighth grade and is the oldest of four children in her family. Respondent testified that she started baby-sitting for B.H. about a year ago. She stated that she usually baby-sat him at his grandparent\u2019s house, but sometimes she baby-sat him at her house. Respondent explained that she usually baby-sat on Wednesday nights and occasionally on Saturdays. Respondent stated that, when she baby-sat on Wednesday nights, she generally arrived after B.H. had already been fed, bathed, and changed into his pajamas. Respondent said that B.H. would generally play with his toys until his 8 p.m. bedtime. Respondent explained that B.H. went to bed by himself, and she would bring him in a cup of water.\nWhen asked whether she had ever tickled B.H., respondent replied that she had once on the Saturday following February 24th while she was baby-sitting B.H. and his cousin, Timmy. Respondent testified that on that night she tickled B.H. while they were all in the living room. Respondent stated that when she did so, she tickled B.H. on his stomach area and his neck. Respondent testified that she remembered that incident because it was B.H.\u2019s mother\u2019s birthday, which was the Saturday after her father\u2019s birthday. She denied having ever pulled B.H.\u2019s pants down or having touched his penis. She stated that she had never seen B.H.\u2019s penis.\nRespondent testified that on Tuesday, August 29, 1989, after the first trial date but before the trial resumed, she saw Detective Bilisko at B.H.\u2019s grandfather\u2019s house talking to B.H. and his grandfather.\nThe final witness for the defense was respondent\u2019s mother. She testified that respondent is 13 years old and is an honorable mention student. Respondent\u2019s mother stated that B.H. has visited their home two or three times since the complaint was initiated. She also stated that she saw Officer Bilisko with B.H. and his grandfather Tuesday, August 29, at B.H.\u2019s grandparents\u2019 home.\nAt the conclusion of all the testimony, the trial judge stated that B.H. was credible and his testimony was clear and convincing. She then found that the State had proved its case beyond a reasonable doubt and continued the case for social evaluation and further proceedings.\nThe dispositional hearing was held on October 17, 1989. The trial court received several reports and a victim impact statement prepared by B.H.\u2019s mother. The trial judge stated that she may have considered supervision in this cause, but was precluded from doing so because the State exercised a formal objection to supervision. The court then adjudicated respondent a delinquent ward of the court and placed her on a period of probation not to exceed 18 months. Respondent filed post-trial motions, which were denied. Respondent appeals.\nWe first consider the last issue raised by respondent as resolution of it may dispose of the cause. Respondent contends that she was not proved guilty beyond a reasonable doubt. Respondent argues that, when a defendant convicted of sexual abuse denies the charge, the conviction will be upheld only where the complainant\u2019s testimony is clear and convincing or where it is substantially corroborated by other evidence. (People v. Diaz (1990), 201 Ill. App. 3d 830, 834; People v. Thompson (1990), 198 Ill. App. 3d 417, 419.) The Appellate Court for the Fourth District recently rejected the application of this standard in People v. Roy (1990), 201 Ill. App. 3d 166, 185. The Roy court held that, in a case in which a sex offense is charged, the State need not demonstrate that the victim\u2019s testimony is clear and convincing or substantially corroborated in order to prove the defendant guilty beyond a reasonable doubt. (Roy, 201 Ill. App. 3d at 185.) The court in Roy explained: \u201cThe testimony of no other category of crime victim is held to be automatically suspect or to require additional proof beyond the statutory requirements. The time has past to rid the law of this sexist anachronism.\u201d (Roy, 201 Ill. App. 3d at 185; see also People v. Evans (1990), 199 Ill. App. 3d 330, 335.) We agree.\nWe find that there is no legitimate reason to place additional requirements on the victims of sex crimes regarding how persuasive their testimony must be. (See People v. James (1990), 200 Ill. App. 3d 380, 394.) Such requirements are contrary to the supreme court\u2019s recent decision in People v. Pintos (1989), 133 Ill. 2d 286, 291, which disapproved of a particularized definition for reasonable doubt. In Pintos, the court held that the reasonable doubt test as set forth in People v. Collins (1985), 106 Ill. 2d 237, 261, should be applied in reviewing the sufficiency of evidence in all criminal cases. (Pintos, 133 Ill. 2d at 291.) Under this test, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Collins, 106 Ill. 2d at 261, citing Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.\nAn accused commits aggravated criminal sexual abuse if she is under the age of 17 and commits an act of sexual conduct with a victim under the age of nine. (Ill. Rev. Stat. 1989, ch. 38, par. 12\u2014 16(c)(2)(i).) Sexual conduct is defined as \u201cany intentional or knowing touching or fondling by the victim or the accused, either directly or through clothing, of the sex organs, anus or breast of the victim or the accused, or any part of the body of a child under 13 years of age, for the purpose of sexual gratification or arousal of the victim or the accused.\u201d Ill. Rev. Stat. 1989, ch. 38, par. 12 \u2014 12(e).\nRespondent contends that the State failed to present any evidence regarding her alleged intent or state of mind in committing the offense. B.H. testified that respondent had touched his penis for four to five seconds and told him not to tell anyone. The State argues that one can infer from this conduct the requisite sexual intent. (People v. Goebel (1987), 161 Ill. App. 3d 113, 125; People v. Allison (1983), 115 Ill. App. 3d 1038, 1043.) In Goebel, the defendant, a substitute teacher, was convicted of criminal sexual abuse for touching the complainant, a nine-year-old student, on one of her breasts with his outstretched hand. This court affirmed the conviction, finding it \u201cthoroughly reasonable to infer from such touching of a nine-year-old girl that defendant intended to gratify or arouse himself sexually.\u201d Goebel, 161 Ill. App. 3d at 125.\nHowever, as respondent argues, it is not justified to impute the same intent into a child\u2019s action that one could reasonably impute into the actions of an adult. Here, respondent was 13 years old, and the alleged victim was five. Even accepting B.H.\u2019s allegations as true, we cannot reasonably infer from respondent\u2019s actions that she intended sexually to gratify or arouse B.H. or herself. Without such evidence, an essential element of the crime is missing. Consequently, respondent\u2019s conviction must be reversed.\nGiven our resolution of the above issue, we need not address the remaining issues raised by respondent.\nReversed.\nWOODWARD and NICKELS, JJ., concur.", "type": "majority", "author": "JUSTICE INGLIS" } ], "attorneys": [ "Kevin M. Kane, of Brigham, Kane & Strubbe, of Waukegan (Karen L. Brigham, of counsel), for appellant.", "Michael J. Waller, State\u2019s Attorney, of Waukegan (William L. Browers and Gregory L. Slovacek, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "In re A.J.H., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. A.J.H., Respondent-Appellant).\nSecond District\nNo. 2 \u2014 90\u20140132\nOpinion filed March 8, 1991.\n\u2014 Rehearing denied April 9, 1991.\nKevin M. Kane, of Brigham, Kane & Strubbe, of Waukegan (Karen L. Brigham, of counsel), for appellant.\nMichael J. Waller, State\u2019s Attorney, of Waukegan (William L. Browers and Gregory L. Slovacek, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0065-01", "first_page_order": 87, "last_page_order": 94 }