{ "id": 5796804, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JASON MASON, Defendant-Appellant", "name_abbreviation": "People v. Mason", "decision_date": "1991-09-12", "docket_number": "No. 4\u201490\u20140311", "first_page": "76", "last_page": "82", "citations": [ { "type": "official", "cite": "219 Ill. App. 3d 76" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "568 N.E.2d 482", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "493" } ], "opinion_index": 0 }, { "cite": "209 Ill. App. 3d 1043", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 3610608 ], "year": 1987, "pin_cites": [ { "page": "168" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/159/0164-01" ] }, { "cite": "101 Nev. 159", "category": "reporters:state", "reporter": "Nev.", "case_ids": [ 2406877 ], "weight": 2, "pin_cites": [ { "page": "162" }, { "page": "1376" } ], "opinion_index": 0, "case_paths": [ "/nev/101/0159-01" ] }, { "cite": "410 U.S. 284", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11957222 ], "weight": 3, "pin_cites": [ { "page": "294" }, { "page": "308" }, { "page": "1045" } ], "opinion_index": 0, "case_paths": [ "/us/410/0284-01" ] }, { "cite": "548 N.E.2d 103", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "105" } ], "opinion_index": 0 }, { "cite": "191 Ill. App. 3d 483", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2509900 ], "pin_cites": [ { "page": "486" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/191/0483-01" ] } ], "analysis": { "cardinality": 813, "char_count": 14200, "ocr_confidence": 0.778, "pagerank": { "raw": 2.979856962758713e-07, "percentile": 0.8509418888900473 }, "sha256": "7a17b7fb13260526158248a5329842ecb29f01de7ffa68d66cccc8006ec77fb2", "simhash": "1:927efc9d4a45bed8", "word_count": 2296 }, "last_updated": "2023-07-14T21:35:35.632923+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JASON MASON, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE LUND\ndelivered the opinion of the court:\nFollowing a jury trial in the circuit court of Mason County, defendant Jason Mason was convicted of two counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12 \u2014 14(bXl)) and sentenced to a term of 15 years\u2019 imprisonment. Defendant now appeals from his conviction and sentence.\nT.N., the seven-year-old victim, lived with two siblings and her father. The defendant, who at the time of the alleged offenses was 17 years of age, baby-sat for his young sisters, as well as for T.N. and her siblings. The alleged offense took place during the baby-sitting. Other than T.N., no witnesses saw the alleged violations. Witnesses repeated what T.N. had reported to them. An obstetrician-gynecologist testified as to what T.N. told her and that she had discovered irregularities in T.N.\u2019s hymenal ring and introitus which reflected old injuries. She testified that T.N.\u2019s hymenal ring was not opened to a degree that a penis could have entered and agreed a jumbo crayon could fit.\nA retired police psychologist was called by the State as an expert witness and testified that inappropriate knowledge by a child of sexual activity, inappropriate play or activity with other children, and inappropriate sexual behavior with adults are behavioral characteristics of sexually abused children. A Department of Children and Family Services (DCFS) investigator, who repeated what T.N. told her during cross-examination, testified that T.N. indicated the defendant \u201cdid it to\u201d his two young sisters \u201ctoo.\u201d This testimony had previously been barred by the trial court.\nI\nFirst, we address defendant\u2019s allegation that the trial court erred in refusing evidence that T.N. had viewed sexually explicit videotapes. This testimony and testimony regarding T.N. putting things in her vagina was prohibited by the trial court, on the theory it was barred by the Illinois rape-shield statute, section 115 \u2014 7 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 115 \u2014 7), which provides, in part:\n\u201cIn prosecutions for aggravated criminal sexual assault *** the prior sexual activity or the reputation of the alleged victim is inadmissible except as evidence concerning the past sexual conduct of the alleged victim with the accused.\u201d Ill. Rev. Stat. 1989, ch. 38, par. 115 \u2014 7(a).\nWe now hold that the rape-shield statute does not apply to the facts before us for two reasons. First, the rape-shield statute applies to \u201cprior sexual activity\u201d or \u201creputation.\u201d The viewing of pornographic videotapes by a curious seven year old does not constitute evidence of either. Second, the policies behind the rape-shield statute were the prevention of harassment and humiliation of victims and the encouragement of victims to report sexual offenses. (People v. Sanders (1989), 191 Ill. App. 3d 483, 486, 548 N.E.2d 103, 105.) Those policies cannot justify denying a defendant the right to refute evidence which tends to establish sexual abuse took place. The right to confront and call witnesses on one\u2019s own behalf are essential to due process. (Chambers v. Mississippi (1973), 410 U.S. 284, 294, 35 L. Ed. 2d 297, 308, 93 S. Ct. 1038, 1045.) The State\u2019s psychologist, by stating sexual knowledge is evidence of abuse, made relevant T.N.\u2019s other sources of knowledge of sexual conduct. The defendant was, in part, seeking to show T.N. was not sexually abused. Needless to say, this was critical to the defense. The observation of sexually explicit videotapes, in this case referred to as XXX-rated, could well justify a fact finder\u2019s determination that a child\u2019s acting out could have been caused from her observations. When knowledge of sexual activities becomes an issue, as in the present case, the rape-shield statute does not apply, and due process precludes its application.\nWe are aware there were various XXX-rated videotapes available, and the evidence was not clear as to which had been observed. Considering that themes of obscenity can be somewhat consistent, we find it necessary, in the present case, to say a sample, as tendered by the defense, should have been admitted. Because of the importance of the knowledge issue, we hold that refusal to admit this information was reversible error.\nCross-examination of the examining doctor who testified at trial established that the injury to the vaginal area could have been caused by repeated insertion in her vagina, by T.N., of jumbo crayons and other items. Evidence of such conduct then became relevant as to cause of the injuries as testified to by the doctor. The injury evidence was introduced to prove the abuse took place. Evidence that the injury may have been otherwise caused was also critical to the due-process rights of the defendant, and is not barred by the rape-shield statute. The rape-shield statute should be construed and applied so as to uphold the constitutional rights of the defendant, while creating the least possible interference with the legislative purpose reflected in the statutes. Summitt v. Nevada (1985), 101 Nev. 159, 162, 697 P.2d 1374, 1376.\nII\nBased upon the State\u2019s motion in limine which was filed prior to trial, the court prohibited any reference to misconduct by the defendant toward his two young sisters. The State\u2019s motion was precipitated by defendant\u2019s desire to call the girls so they could testify that the defendant had not abused them. During cross-examination of the State\u2019s DCFS witness, that witness unnecessarily expanded an answer by saying, \u201cShe [T.N.] indicated he did it to [his stepsisters], too.\u201d Immediately after this answer, defense counsel requested a conference at the bench, which was not recorded by the court reporter. No bystander\u2019s report of this conference was made part of the appellate record. This failure indicates the necessity for counsel and the court to be certain a complete record is maintained throughout a trial.\nGenerally, in a child sexual-abuse case, acts of abuse with children other than the present complainant are not admissible as proof of the crime charged unless they show intent, motive, identity, absence of mistake, knowledge, common design, scheme or plan, or modus operands (People v. Esterline (1987), 159 Ill. App. 3d 164, 168, 512 N.E.2d 358, 361, appeal denied (1987), 117 Ill. 2d 548.) Erroneous admission of evidence of other crimes carries a high risk of prejudice and, ordinarily, calls for reversal. (People v. Lindgren (1980), 79 Ill. 2d 129, 140, 402 N.E.2d 238, 244.) The State, while contending the error was waived, admits the evidence was not admissible. We find the suggestion that defendant had perpetrated the same crimes against his six- and seven-year-old stepsisters is highly prejudicial, and it is error which requires reversal. We do not agree that defendant waived objection to this testimony. The circumstantial evidence regarding the conference at the bench, immediately after the objectionable statement, established that defense counsel objected to the testimony.\nIll\nIn an odd twist, after insisting that pornographic videotapes should be admitted to show T.N.\u2019s knowledge of sexual behavior, defendant argues it was error to introduce evidence that he showed T.N. pornographic movies. However, as we have already indicated, evidence of uncharged wrongdoing may be admitted to show defendant\u2019s intent, knowledge, or motive. Such evidence is admissible in cases where the proffered evidence is so clearly connected with the main issue in the case at bar as to tend to prove the accused guilty of the offense charged. (People v. Daugherty (1983), 112 Ill. App. 3d 541, 545, 445 N.E.2d 473, 475.) Evidence indicating the defendant showed T.N. pornography suggests his intent at self-arousal and could be logically interpreted as a scheme to seduce the child. The court\u2019s ruling allowing this evidence was correct.\nIV\nDefendant also contends that the trial court erred by prohibiting him from presenting witnesses at T.N.\u2019s competency hearing who would testify that she lied frequently and had a poor reputation for telling the truth.\nThe Illinois witness competency statute states that every witness, regardless of age, is presumed competent to testify. (Ill. Rev. Stat. 1989, ch. 38, par. 115 \u2014 14(a).) A witness may be disqualified if the moving party can demonstrate that the witness is either incapable of expressing himself or is \u201c[ijncapable of understanding the duty of a witness to tell the truth.\u201d (Ill. Rev. Stat. 1989, ch. 38, par. 115 \u2014 14(bX2).) The question of a minor witness\u2019 competency is for the trial court, and its competency ruling will not be disturbed absent an abuse of discretion or a misapprehension of some legal principle. (People v. Born (1987), 156 Ill. App. 3d 584, 587, 509 N.E.2d 125, 126, appeal denied (1987), 116 Ill. 2d 563.) Neither of the foregoing bases for reversal is present in this case.\nSection 115 \u2014 14 suggests that intellectual rather than moral fitness is the true measure of witness competency. The witness competency statute indicates that a witness may be disqualified if she is incapable of understanding the duty to tell the truth (Ill. Rev. Stat. 1989, ch. 38, par. 115 \u2014 14(bX2)), but does not provide that a witness who is unlikely to tell the truth may be disqualified. The latter is a credibility determination best left to the trier of fact.\nThis court has recently stated, \u201cIt is not the trial court\u2019s role to evaluate witnesses and to permit the testimony of only those witnesses the court finds credible. Credibility determinations are peculiarly within the province of the jury and may never be the basis to reject otherwise admissible testimony.\u201d (People v. Trail (1990), 197 Ill. App. 3d 742, 748, 555 N.E.2d 68, 73.) Accordingly, we reject defendant\u2019s argument that in order to meet his burden under section 115 \u2014 14 to demonstrate that T.N. is not qualified to be a witness, he should be permitted to call witnesses who would testify either that T.N. had lied to them or that T.N. had a bad reputation for telling the truth. Such evidence has no relevance when a court decides whether a witness is qualified under section 115 \u2014 14 to testify. The trial court did not err by refusing to consider T.N.\u2019s credibility in determining her competence to testify.\nV\nT.N. apparently made accusations of defendant\u2019s sexual abuse two years prior to the current charges. Defendant\u2019s request to introduce evidence that \u201ctwo years ago the alleged victim had accused the Defendant and DCFS had found that accusation to be unfounded\u201d was denied by the trial court. Defendant says this denial was reversible error. A complainant\u2019s prior or subsequent unfounded allegations of sexual abuse against the accused may be admissible, if they bear upon the complainant\u2019s credibility. (People v. Howard (1983), 113 Ill. App. 3d 380, 447 N.E.2d 473; People v. Nicholl (1991), 210 Ill. App. 3d 1001, 569 N.E.2d 604.) However, a trial court may exclude evidence when its relevance is so speculative that it is of little probative value. (People v. Gorney (1985), 107 Ill. 2d 53, 60, 481 N.E.2d 673, 675.) A reviewing court will not substitute its judgment for that of the trial court on issues of admissibility absent a clear showing of abuse. (People v. Ward (1984), 101 Ill. 2d 443, 455-56, 463 N.E.2d 696, 702.) The evidence of the prior accusation comes from a voluminous file, including DCFS records, interviews, and reports. While defendant wants to use a DCFS determination or suggestion not to prosecute or continue proceedings, the file also indicates defendant did admit improper touching of T.N. The decision by DCFS to recommend not pursuing an action was not a judicial decision, and is not a final determination that the accusations by T.N. were false. In Clinebell v. Commonwealth (1988), 235 Va. 319, 368 S.E.2d 263, the Virginia Supreme Court noted that \u201ca majority of jurisdictions that have considered the issue hold that evidence of prior false accusations is admissible to impeach the complaining witness\u2019 credibility or as substantive evidence tending to prove that the instant offense did not occur.\u201d (Clinebell, 235 Va. at 324, 368 S.E.2d at 265 (and authorities cited therein).) However, the court explained that such evidence is admissible \u201conly if a court makes a threshold determination that a reasonable probability of falsity exists.\u201d (Clinebell, 235 Va. at 325, 368 S.E.2d at 266.) Although Illinois courts have not articulated a similar threshold requirement, it seems that general relevance considerations would require the movant to demonstrate that the proffered testimony would prove it more likely than not that the prior accusations were false. Without such a showing, the probative value of the evidence would be slight. As we have indicated, the defendant\u2019s proffered evidence, i.e., the DCFS files, does not establish that it was more likely that the prior accusation was false. The trial court\u2019s ruling was correct. See Gorney, 107 Ill. 2d at 60, 481 N.E.2d at 675 (and cases cited therein).\nVI\nDefendant contends that the convictions must be reversed because the jury instructions for aggravated criminal sexual assault did not specify a mental state. Our court ruled adverse to defendant\u2019s contention in People v. Burton (1990), 201 Ill. App. 3d 116, 123-29, 558 N.E.2d 1369, 1374-78 (Steigmann, J., concurring in part and dissenting in part). In People v. Smith (1991), 209 Ill. App. 3d 1043, 1061, 568 N.E.2d 482, 493, this court reaffirmed its decision in Burton, and we decline to review the issue further.\nFinally, as this case is being remanded for retrial, we elect to refrain from comment on the propriety of the trial court\u2019s sentence.\nReversed and remanded.\nGREEN and STEIGMANN, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE LUND" } ], "attorneys": [ "Daniel D. Yuhas and M. Jeffrey Bergschneider, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.", "Alan D. Tucker, State\u2019s Attorney, of Havana (Kenneth R. Boyle and Robert J. Biderman, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JASON MASON, Defendant-Appellant.\nFourth District\nNo. 4\u201490\u20140311\nOpinion filed September 12, 1991.\nDaniel D. Yuhas and M. Jeffrey Bergschneider, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nAlan D. Tucker, State\u2019s Attorney, of Havana (Kenneth R. Boyle and Robert J. Biderman, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0076-01", "first_page_order": 98, "last_page_order": 104 }