{ "id": 3278880, "name": "In re JAMES CRUZ, a Minor.-(THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. JAMES CRUZ, Respondent-Appellant.)", "name_abbreviation": "People v. Cruz", "decision_date": "1979-09-19", "docket_number": "No. 78-1007", "first_page": "565", "last_page": "571", "citations": [ { "type": "official", "cite": "76 Ill. App. 3d 565" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "334 N.E.2d 246", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "248" } ], "opinion_index": 0 }, { "cite": "31 Ill. App. 3d 449", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2713030 ], "pin_cites": [ { "page": "452" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/31/0449-01" ] }, { "cite": "357 N.E.2d 592", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "594" } ], "opinion_index": 0 }, { "cite": "43 Ill. App. 3d 556", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2727446 ], "pin_cites": [ { "page": "558" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/43/0556-01" ] }, { "cite": "266 N.E.2d 721", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "722, 723" } ], "opinion_index": 0 }, { "cite": "130 Ill. App. 2d 1107", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 2487755 ], "weight": 3, "pin_cites": [ { "page": "497" }, { "page": "497-98" }, { "page": "498" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/41/0491-01" ] }, { "cite": "225 N.E.2d 10", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1976, "pin_cites": [ { "page": "11-12" }, { "page": "12" }, { "page": "12" } ], "opinion_index": 0 }, { "cite": "36 Ill. 2d 620", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5377129 ], "weight": 3, "year": 1976, "pin_cites": [ { "page": "622" }, { "page": "622" }, { "page": "623" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/36/0620-01" ] }, { "cite": "342 N.E.2d 100", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "104" } ], "opinion_index": 0 }, { "cite": "35 Ill. App. 3d 619", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5306538 ], "pin_cites": [ { "page": "625" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/35/0619-01" ] }, { "cite": "285 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "pin_cites": [ { "page": "8" } ], "opinion_index": 0 }, { "cite": "52 Ill. 2d 94", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5394563 ], "year": 1976, "pin_cites": [ { "page": "104, 105" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/52/0094-01" ] } ], "analysis": { "cardinality": 706, "char_count": 12639, "ocr_confidence": 0.887, "pagerank": { "raw": 1.713113062245514e-07, "percentile": 0.702697724848051 }, "sha256": "230ec26b58d3245a7038cfc0e9b7376ae431ac0277d59cd73e7f9170b1255e35", "simhash": "1:cb6db898b273bf16", "word_count": 2040 }, "last_updated": "2023-07-14T15:19:59.772889+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re JAMES CRUZ, a Minor.\u2014(THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. JAMES CRUZ, Respondent-Appellant.)" ], "opinions": [ { "text": "Mr. JUSTICE RIZZI\ndelivered the opinion of the court:\nRespondent, James Cruz, was charged with deviate sexual assault (Ill. Rev. Stat. 1977, ch. 38, par. 11 \u2014 3) in a petition for adjudication of wardship filed by the State. The court adjudicated him a delinquent under the Juvenile Court Act (Ill. Rev. Stat. 1977, ch. 37, par. 701 \u2014 4) and committed him to the Department of Corrections. Respondent contends: (1) the court improperly found the complainant, a minor, competent to testify as a witness; (2) the evidence was insufficient to prove him a delinquent beyond a reasonable doubt; (3) an amendment to the State\u2019s petition of wardship was improperly granted; and (4) the dispositional hearing was deficient because his attorney was not present. We affirm.\nThe occurrence took place on April 30, 1977. At that time, the respondent was 16 years old; the victim was a 6-year-old boy. The victim testified that he went to the respondent\u2019s house about 2 p.m. After exchanging greetings, the respondent told the victim to get his ball from the backyard. As he was ready to do so, respondent grabbed and dragged him downstairs into the basement, forced him onto a bed, and committed an act of anal intercourse. The victim tried to resist by pulling respondent\u2019s hair and pinching him, but respondent covered the victim\u2019s mouth and nose tightly with his hand. Afterward, respondent gave him a toy snake and told him not to tell his mother. Respondent then took the victim outside and lifted him over a fence and into an adjacent yard. The victim promptly told his mother of the incident and the police were notified.\nAfter interviewing the victim and his mother, a police officer accompanied them to respondent\u2019s house. The victim identified respondent at that time. In searching the house, the police officer found the toy snake. After the investigation, the victim was taken to a hospital by the police.\nThe examining doctor testified that the victim\u2019s face was covered with dot-like hemorrhages which could have been caused by someone grabbing his nose and mouth. Because of the extreme pain and bleeding of the victim\u2019s anal area, the doctor was required to anesthetize it before a full examination. The doctor\u2019s examination observed two lacerations so deep in the anal canal that the tissue was split to the muscle fiber. He concluded that a penis could have caused the injury.\nA neighbor testified that she saw the respondent lift the victim over the fence between 2:30 and 2:45 p.m. When she saw the victim a short time later, his face was covered with \u201cspots\u201d and his pants were covered with blood.\nIn his defense, respondent denied that he did any of the things for which he was accused. He testified that he and his sisters were in the basement watching television during midday on April 30,1977. He ironed some clothes and then went upstairs to take a bath. After bathing, he returned downstairs and was met by the police. Members of respondent\u2019s family acknowledged that he was watching television. However, they testified that respondent sent them out of the basement after awhile so he could finish ironing and get ready for his bath. According to their testimony, they were, therefore, not with him at the time of the alleged occurrence.\nPrior to closing its case, the State was given leave to amend the delinquency petition to include counts for battery, unlawful restraint and contributing to the sexual delinquency of a minor. After the hearing was concluded, the court adjudicated the respondent a delinquent and a ward of the court.\nRespondent initially argues that the judge erred in finding the victim competent to testify. At the time of the hearing, he was only six years old, but the competency of a minor to testify is determined by his degree of intelligence rather than his age. (People v. Brown (1972), 52 Ill. 2d 94, 104, 105, 285 N.E.2d 1, 8; People v. Van Broughton (1976), 35 Ill. App. 3d 619, 625, 342 N.E.2d 100, 104.) In determining the minor\u2019s intelligence, the judge should consider whether the minor is sufficiently mature to: (1) receive correct impressions from his senses; (2) recollect these impressions; (3) understand questions and narrate answers intelligently; and (4) appreciate the moral duty to tell the truth. (People v. Ballinger (1967), 36 Ill. 2d 620, 622, 225 N.E.2d 10, 11-12; People v. Goble (1976), 41 Ill. App. 3d 491, 497, 354 N.E.2d 108, 113.) Applying these factors to the instant case, we believe the judge properly found the victim competent to testify.\nSpecifically, the victim testified that he attended school and lived at home with his parents and brother. He further testified as to the name of the school and the nature of his father\u2019s employment. Also, his testimony reveals that he knew what it meant to lie and that the judge could \u201clock him up\u201d if he did not answer truthfully. In sum, his testimony demonstrates that the victim had sufficient intelligence to testify and the judge properly considered the factors that are to be used to determine the competency of a minor to testify.\nIn considering the question of a minor\u2019s competency to testify, reviewing courts will not reverse a judge\u2019s determination unless there has been an abuse of discretion or manifest misapprehension of a legal principle. (Ballinger, 36 Ill. 2d 620, 622, 225 N.E.2d 10, 12; Goble, 41 Ill. App. 3d 491, 497-98, 354 N.E.2d 108, 114.) Also, the judge\u2019s ability to observe the demeanor of a minor witness is a factor considered by the reviewing courts. (E.g., Ballinger, 36 Ill. 2d 620, 623, 225 N.E.2d 10, 12.) Applying these principles to this case, we do not believe the judge\u2019s determination should be reversed. The witness experienced some difficulty in answering certain questions during the hearing. However, once the judge determines that a minor is competent to testify, any confusion or contradiction in later testimony only goes to his credibility as a witness and does not affect his competency to testify. (Goble, 41 Ill. App. 3d 491, 498, 354 N.E.2d 108, 114.) Accordingly, the respondent\u2019s argument on this point is without merit.\nRespondent next contends that the evidence was insufficient to prove him a delinquent. We disagree. Under the Juvenile Court Act, the State must prove that a minor is a delinquent beyond a reasonable doubt when the adjudicatory hearing is in the nature of a criminal proceeding. (Ill. Rev. Stat. 1977, ch. 37, pars. 704 \u2014 6, 701 \u2014 4(a).) In a deviate sexual conduct case, therefore, the complainant\u2019s testimony must be substantially corroborated or clear and convincing. (See People v. Hamelin (1979), 75 Ill. App. 3d 445, 447, 394 N.E.2d 566, 568.) In the present case, the neighbor testified that she saw the respondent lifting the victim over the fence shortly after the incident occurred. The victim made a prompt complaint to his mother and then to the police. (Cf. People v. Damen (1963), 28 Ill. 2d 464, 470, 472-73, 193 N.E.2d 25, 29-31.) Testimony was adduced regarding blood stains on his pants. The doctor testified to the dot-like hemorrhages on the victim\u2019s face which could have been caused by respondent covering his face and mouth. Also, the doctor testified to severe lacerations in the victim\u2019s anus, which could have resulted from anal intercourse. Moreover, the toy snake which the victim said respondent gave him was recovered on the respondent\u2019s premises by the police. Under the circumstances, the complainant\u2019s testimony was substantially corroborated.\nNot only was the victim\u2019s testimony substantially corroborated, but respondent\u2019s witnesses testified that they were not with him when the alleged incident occurred. Thus, respondent\u2019s alibi need not have been accepted by the fact finder because there was contrary crucial evidence. (See People v. Mays (1971), 48 Ill. 2d 164, 170, 269 N.E.2d 281, 284; People v. Thomas (1970), 130 Ill. App. 2d 1107, 1109, 1110, 266 N.E.2d 721, 722, 723.) We hold, under all the circumstances, that the evidence was sufficient to prove the respondent a delinquent beyond a reasonable doubt.\nRespondent also argues that the trial court erred in permitting the State to amend the petition of wardship after its presentation of evidence of the three other crimes. However, we fail to see how respondent could have been prejudiced under the circumstances. The Juvenile Court Act provides that the definition of a delinquent minor includes \u201cany minor who * * * has violated 0 0 0 any federal or state law or municipal ordinance.\u201d (Ill. Rev. Stat. 1977, ch. 37, par. 702 \u2014 2.) Thus, any one of the four counts would have been sufficient to support a finding of delinquency. Since there was no dispute regarding the sufficiency of the original count, a finding of delinquency could have been based on that count alone. A single finding of delinquency is involved here, rather than multiple convictions arising from the same conduct. Consequently, respondent was not prejudiced. See In re Mareno (1976), 43 Ill. App. 3d 556, 558, 357 N.E.2d 592, 594.\nRespondent\u2019s final contention relates to the dispositional hearing. The hearing was commenced on September 13, 1977. The probation officer stated that the respondent had a previous delinquency petition for criminal damage to property. In addition, respondent had six station adjustments for disorderly conduct, battery, shoplifting and criminal trespass to vehicle. The probation officer recommended commitment and \u201cintense psychotherapy\u201d because this treatment would not be \u201csabotaged\u201d by respondent\u2019s home life. However, in a written report, a Clinical Services Department psychiatrist recommended \u201cout-patient\u201d treatment. Because of the different recommendations, the judge continued the dispositional hearing to September 20, 1977, so that the psychiatrist could be interviewed. At some time on September 20, before the commencement of the hearing, the judge interviewed the psychiatrist in the presence of the probation officer and the state\u2019s attorney, but the attorney for respondent was not present. The psychiatrist again recommended out-patient treatment. However, he \u201ccould not give any kind of assurance that the acting out [i.e., attack] would not happen again.\u201d When the hearing was commenced on September 20, the judge told the respondent\u2019s attorney what the psychiatrist had said in the interview. The judge then sentenced the respondent to the Department of Corrections.\nRespondent argues that the dispositional hearing was deficient because his attorney was not permitted to be present at all times. Initially, we note that the record is unclear on this point, and that the appealing party has the burden of producing a complete record. A question involving any incomplete portion of a record results in every reasonable presumption being given in favor of the judgment entered by the trial court. (Sandberg v. American Machining Co. (1975), 31 Ill. App. 3d 449, 452, 334 N.E.2d 246, 248.) Here, the record does not reveal whether respondent\u2019s counsel did not attend the interview with the psychiatrist because of his own volition or that of the judge. In this regard, after the judge made his ruling, the respondent\u2019s attorney did not object to the interview which had taken place in his absence. Under the Juvenile Court Act (Ill. Rev. Stat. 1975, ch. 37, par. 705 \u2014 1), the court shall advise the parties \u201cof the factual contents and the conclusions of the reports prepared for the use of the court and considered by it, and afford fair opportunity, if requested, to controvert them.\u201d (Emphasis added.) We believe this right to controvert, if requested, applies to the statements made by the psychiatrist. But since respondent\u2019s attorney did not request an opportunity to controvert them, we believe' the respondent\u2019s contention on appeal has been waived. Moreover, although defense counsel was absent, the psychiatrist reiterated his recommendation of out-patient treatment, a recommendation most favorable to respondent. Consequently, we do not believe that respondent was prejudiced. His argument, therefore, is unavailing.\nThe judgment is accordingly affirmed.\nAffirmed.\nSIMON, P. J., and McGILLICUDDY, J., concur.", "type": "majority", "author": "Mr. JUSTICE RIZZI" } ], "attorneys": [ "James J. Doherty, Public Defender, of Chicago (Michael Mclnerney and Frances Sowa, Assistant Public Defenders, of counsel), for appellant.", "Bernard Carey, State\u2019s Attorney, of Chicago (Lee T. Hettinger, Iris E. Sholder, and Ira H. Raphaelson, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "In re JAMES CRUZ, a Minor.\u2014(THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. JAMES CRUZ, Respondent-Appellant.)\nFirst District (3rd Division)\nNo. 78-1007\nOpinion filed September 19, 1979.\nJames J. Doherty, Public Defender, of Chicago (Michael Mclnerney and Frances Sowa, Assistant Public Defenders, of counsel), for appellant.\nBernard Carey, State\u2019s Attorney, of Chicago (Lee T. Hettinger, Iris E. Sholder, and Ira H. Raphaelson, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0565-01", "first_page_order": 587, "last_page_order": 593 }