{ "id": 5374228, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JER\u00d3NIMO CALDER\u00d3N, Defendant-Appellant", "name_abbreviation": "People v. Calder\u00f3n", "decision_date": "1994-04-14", "docket_number": "No. 1\u201492\u20141833", "first_page": "558", "last_page": "564", "citations": [ { "type": "official", "cite": "261 Ill. App. 3d 558" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "242 Ill. App. 3d 1034", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5118455 ], "pin_cites": [ { "page": "1041" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/242/1034-01" ] }, { "cite": "122 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550081 ], "year": 1993, "pin_cites": [ { "page": "186" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0176-01" ] }, { "cite": "145 Ill. 2d 188", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5596168 ], "weight": 2, "pin_cites": [ { "page": "203" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/145/0188-01" ] }, { "cite": "114 Ill. 2d 376", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5542288 ], "pin_cites": [ { "page": "408" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/114/0376-01" ] }, { "cite": "151 Ill. 2d 168", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3292349 ], "pin_cites": [ { "page": "172-73" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/151/0168-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 9, "pin_cites": [ { "page": "687-88" }, { "page": "693" }, { "page": "2064" }, { "page": "694" }, { "page": "698" }, { "page": "2068" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] } ], "analysis": { "cardinality": 628, "char_count": 13188, "ocr_confidence": 0.804, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.15854881886936265 }, "sha256": "e51160f221bad72b8600a1e9c6ca312440bc72dbe58bd1cba9f39564262afed5", "simhash": "1:bc6f7d36372cca51", "word_count": 2191 }, "last_updated": "2023-07-14T17:03:20.371410+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. JER\u00d3NIMO CALDER\u00d3N, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE JOHNSON\ndelivered the opinion of the court:\nAfter a bench trial in the circuit court of Cook County, defendant, Jer\u00f3nimo Calder\u00f3n, was convicted of aggravated criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12\u201414(a)(2)) and criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12\u201413(a)(3)). He was sentenced to an eight-year term in the Illinois Department of Corrections for aggravated criminal sexual assault, the other conviction merging.\nOn appeal, defendant contends (1) he was not charged within the applicable statute of limitations; (2) he received ineffective assistance of counsel; (3) he was not proved guilty beyond a reasonable doubt as there was a fatal variance between the indictment and the evidence; and (4) his impregnation of his daughter was not proved beyond a reasonable doubt.\nWe affirm.\nThe following relevant facts were adduced at trial. Defendant began to have sexual relations with his daughter, M.C., when she was 14 years old and these relations continued for approximately five years. M.C. testified that defendant is the father of her daughter, V.C., who was born on June 29, 1988, when M.C. was 17 years old.\nOn April 29, 1991, Officer Jos\u00e9 Reyes found defendant hiding in a bedroom closet in the family home while M.C. was present, in violation of a court order prohibiting defendant\u2019s presence in the house. Officer Reyes arrested defendant and took him to the police station. At the station, defendant gave a written statement to police and to Assistant State\u2019s Attorney Roger Pe\u00f1a, stating that he had a sexual relationship with M.C. and that he was the father and the grandfather of her daughter, V.C. That same day, the officer interviewed M.C., who stated that defendant was the father of her child.\nAt the conclusion of trial, defendant was convicted of the criminal sexual assault and the aggravated criminal sexual assault of M.C. He was subsequently sentenced to an eight-year term of imprisonment in the Illinois Department of Corrections. He appeals.\nInitially, defendant posits that the charges regarding M.C. were not brought within the applicable statute of limitations.\nDefendant predicates his argument on section 3\u20146(c) of the Criminal Code of 1961 (Ill. Rev. Stat. 1991, ch. 38, par. 3\u20146(c)). The pertinent language provides: \"A prosecution for any offense involving sexual conduct or sexual penetration *** where the victim and defendant are family members *** may be commenced within one year of the victim attaining the age of 18 years.\u201d Accordingly, he postulates that as his most recent act of sexual intercourse with M.C. occurred when she was 15 years old and as he was not charged with an offense respecting his conduct toward M.C. until she was 20 years old, the charges were not properly brought against him.\nAs an introductory note, this assertion is unsupported by the record. A review of the record demonstrates that defendant engaged in sexual intercourse with his daughter after she was 15 years old. Most indicative of this fact is defendant\u2019s acknowledgement that he is the father of M.C.\u2019s daughter, V.C., who was born on June 29, 1988, when M.C. was 17 years old.\nRegarding the statute of limitations, defendant suggests that section 3\u20146(c) of the Criminal Code of 1961 somehow limits the time period in which an action may be brought against him for aggravated criminal sexual assault. However, this contention is a misapplication of section 3\u20146.\nAn examination of section 3\u20146 reveals that it is entitled \"Extended Limitations.\u201d The committee comments for the section explain that the section\u2019s purpose is \"to permit increases in the general time limitations with respect to certain offenses which are capable of being readily concealed by the offender, from both the victims and the law enforcing authorities, over substantial periods of time and beyond the general limitations applicable to those offenses.\u201d (Ill. Ann. Stat., ch. 38, par. 3\u20146, Committee Comments, at 176 (Smith-Hurd 1989).) This section is to be construed in conjunction with section 3\u20145 of the Criminal Code of 1961, which states that the prosecution for felonies, such as the offenses with which defendant was charged, \"must be commenced within 3 years after the commission of the offense.\u201d Ill. Rev. Stat. 1991, ch. 38, par. 3\u20145(b).\nOur inquiries respecting the statute of limitations need not extend beyond the application of section 3\u20145 to defendant. The facts establish that defendant and his daughter had a child on June 29, 1988. Under these circumstances, the statute of limitations begins to run at the time of the child\u2019s birth, rather than when the actions resulting in the birth took place. Therefore, under section 3\u20145, an action must have been brought against defendant by June 29, 1991, three years after the manifestation of his acts. As the proceedings against defendant commenced on April 20, 1991, approximately two months before the expiration of the period, there was no violation of section 3\u20145. As the action against him was properly brought pursuant to section 3\u20145, we need not consult section 3\u20146.\nNext, defendant maintains that he was denied effective assistance of counsel as defense counsel failed to raise the statute of limitations issue either at trial or in the post-trial motion.\nIt is widely recognized that an ineffective assistance of counsel claim must be brought pursuant to the standards promulgated by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052. Strickland places the burden on defendant to show that counsel\u2019s conduct was deficient, falling below an objective standard of reasonableness and to demonstrate that he was \"depriv[ed] *** of a fair trial, a trial whose result is reliable.\u201d (Strickland, 466 U.S. at 687-88, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.) Further, defendant must establish the existence of a reasonable probability that, but for counsel\u2019s unprofessional errors, the result of the proceeding would have been different. (Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.) Finally, an ineffective assistance of counsel claim may fail if it is determined that defendant was not prejudiced by counsel\u2019s conduct. People v. Odle (1992), 151 Ill. 2d 168, 172-73.\nThe action against defendant was properly brought in complete accord with the relevant statute of limitations. Thus, defense counsel\u2019s failure to raise the statute of limitations defense either at trial or in the post-trial motion is of no consequence. \"[A]n attorney\u2019s performance will not be said to be deficient due to a failure to bring a futile motion.\u201d (People v. Hall (1986), 114 Ill. 2d 376, 408.) Here, it cannot be maintained that the failure to raise the statute of limitations defense at any juncture of the proceeding was improper or prejudiced defendant to the extent that the Strickland standards were violated.\nNext, defendant opines that his convictions must be reversed as the counts in the indictment were in fatal variance with the evidence presented.\nDefendant was charged with the criminal sexual assault and the aggravated criminal sexual assault of M.C. during the period of January 1, 1987, to January 1, 1991. The evidence adduced at trial demonstrated that he engaged in sexual intercourse with M.C. throughout these years. M.C. testified that she had sexual intercourse with defendant on several occasions and that he was the father of her daughter, V.C. Assistant State\u2019s Attorney Roger Pe\u00f1a and Officer Jos\u00e9 Reyes both testified that on April 29, 1991, M.C. told them she had been having sex with defendant for five years. This period encompasses approximately 1986 to 1991, which includes the interval of the indictment. She also told them that defendant was the father of V.C. On the same day, defendant made a written statement to the police and to Pe\u00f1a stating that he was the father and the grandfather of V.C. The trial court heard all the evidence and believed M.C.\u2019s testimony regarding her sexual relationship with defendant. The trial court also believed that defendant was the father of her child, who was born well within the time alleged in the indictment. We find that there is no fatal variance between the indictment and the evidence presented at trial.\nNext, defendant asserts that he was not convicted of the aggravated criminal sexual assault of M.C. beyond a reasonable doubt.\nThe applicable standard of evidentiary sufficiency in sex-offense cases was clarified by our supreme court in People v. Schott (1991), 145 Ill. 2d 188. The court determined the test to be whether a rational trier of fact, after reviewing all the evidence in the light most favorable to the prosecution, could have found the necessary elements of the crime beyond a reasonable doubt. Schott, 145 Ill. 2d at 203.\nDefendant cites portions of M.C.\u2019s testimony as evidence of the State\u2019s failure to prove the essential elements of aggravated criminal sexual assault beyond a reasonable doubt. M.C. did, in fact, make conflicting statements at trial. She stated that the sexual relationship with her father ceased when she was 15 years old, although she had his child when she was 17 years old. She testified that she did not know who fathered V.C. because she was having sex with defendant and a boy from school during the same period of time. She explained that the reason she previously identified defendant as V.C.\u2019s father was because she \"got mixed up.\u201d\nThe trial court, in the best position to evaluate the testimony and the credibility of witnesses, made detailed findings regarding the testimony of M.C. and the Calder\u00f3n family:\n\"[M.C.] is a developed woman who testified that she had sexual intercourse with her father while she was seventeen years of age and under; that he fathered a baby by her. Mr. Calderon was taken into custody hiding in that house when the police arrived and gave a statement to police indicating that he did have sexual relations with his daughter and he is the father of that child. All the testimony of her having a boyfriend, having intercourse with a boyfriend, is not persuasive to me.\n*** [A]ll the pressure by Mr. Calderon\u2019s wife sitting here and who has been willing to lie in court to protect her husband is an indication of what the sickness is in this family.\u201d\nThe trial court made an additional observation about M.C.\u2019s testimony during the sentencing of defendant, stating: \"Your daughter came in here and said that you had sexual relations with her and caused her to have a child. And I believe her.\u201d\nThe record reveals that on the occasions M.C. stated that defendant was the father of V.C., her mother was not present, and on the occasions when her mother was present, M.C. seemed to be confused about what she should say. The trial court did not believe M.C.\u2019s testimony as to the existence of a boyfriend and seemed to indicate that M.C.\u2019s mother may have exerted pressure on her to testify in a particular manner which may have resulted in the retraction of her previous affirmations (about her relationship with defendant and the paternity of her daughter) to the police and to the assistant State\u2019s Attorney. We believe that the trial court\u2019s assessment of the credibility of M.C. and its resolution of any inconsistencies or conflicts in her testimony were not improper and do not create a reasonable doubt as to defendant\u2019s guilt.\nFinally, defendant advances three additional arguments. He asserts that his conviction for criminal sexual assault must be reversed as it is a lesser included offense of aggravated criminal sexual assault even though the trial court ruled that the lesser offense merged with the greater and even though he was only sentenced on the aggravated criminal sexual assault conviction. He also maintains that he was denied his right to a fair trial due to the trial court\u2019s biased conduct regarding M.C.\u2019s testimony and the State\u2019s improper preparation of such testimony. Lastly, he contends that his order of sentence and commitment should be changed to reflect a six-year term of incarceration rather than an eight-year term although the amended record and the notice of appeal reflect that he was sentenced to eight years in the Illinois Department of Corrections.\nThese issues, however, are not cognizable on appeal as defendant failed to both object at trial and raise these issues in his post-trial motion. Defendant\u2019s failure to preserve these issues results in their waiver on appeal. People v. Enoch (1988), 122 Ill. 2d 176, 186; see People v. Arsberry (1993), 242 Ill. App. 3d 1034, 1041.\nFor the aforementioned reasons, the judgment of the circuit court of Cook County is affirmed.\nAffirmed.\nCAHILL, P.J., and THEIS, J., concur.", "type": "majority", "author": "JUSTICE JOHNSON" } ], "attorneys": [ "Rita A. Fry, Public Defender, of Chicago (Michael Davidson and Alison Edwards, Assistant Public Defenders, of counsel), for appellant.", "Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Susan Schierl, and Jon J. Walters, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JER\u00d3NIMO CALDER\u00d3N, Defendant-Appellant.\nFirst District (4th Division)\nNo. 1\u201492\u20141833\nOpinion filed April 14, 1994.\nRita A. Fry, Public Defender, of Chicago (Michael Davidson and Alison Edwards, Assistant Public Defenders, of counsel), for appellant.\nJack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Susan Schierl, and Jon J. Walters, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0558-01", "first_page_order": 576, "last_page_order": 582 }