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People v. Summers
State: Illinois
Court: 4th District Appellate
Docket No: 4-03-1059 Rel
Case Date: 11/12/2004

NO. 4-03-1059
 
IN THE APPELLATE COURT
 
OF ILLINOIS
 
FOURTH DISTRICT
    
THE PEOPLE OF THE STATE OF ILLINOIS,
                         Plaintiff-Appellee,
                         v.
TEDDY E. SUMMERS,
                         Defendant-Appellant.


 
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Appeal from
Circuit Court of
Coles County
No. 02CF589

Honorable
Mitchell K. Shick,
Judge Presiding.



JUSTICE COOK delivered the opinion of the court:

Defendant, Teddy E. Summers, appeals from his conviction of predatory criminal sexual assault of a child. 720 ILCS5/12-14.1(a)(1) (West 2002). On appeal, defendant argues that(1) the evidence against him was contradictory and inconsistent,such that reasonable doubt of guilt remained; (2) the trial courterred in refusing to allow defendant to inquire about the victim's prior sexual conduct; (3) the court erred in allowingwitness testimony regarding defendant's prior incarceration; (4)the court erred in allowing testimony and the recordings oftelephone calls made by defendant and his wife following theincident; (5) the sex-offender-specific evaluation should havebeen stricken because it contained unauthorized disclosures ofconfidential information given during treatment; (6) the courterred in imposing an extended-term sentence of 42 years' imprisonment; and (7) the court considered an improper factor whenimposing a sentence that is both harsh and excessive. We affirm.

I. BACKGROUND

On September 12, 2002, defendant; his wife, Kelly; andtheir two children, W.S., age 8, and K.S., age 5, visited Mattoonand the home of George Davis; his wife Melissa; and their twochildren, C.D., age 12, and J.D., age 5. Melissa had thrown ahome and garden party in the afternoon, and defendant and hisfamily stayed afterward to have a cookout. While Melissa's partywas going on, defendant, George, and the children went to thepark and played. They returned at a little past 6 p.m., afterthe party ended. At around 6:30, George testified that hestarted grilling on the back porch while Melissa and Kelly cookedside dishes in the kitchen. George stated that he went in andout of the house several times because he was also cooking twice-baked potatoes in the kitchen. All of the children were playingin the backyard. Defendant helped George with the grilling butat times would stop and smoke a cigar on the back stoop.

At some point before dinner, C.D., then age 12, testified that he needed to use the restroom, but because someone wasusing the one in the house, he urinated behind a bush near theback stoop. He testified that defendant followed him and askedif he could "see his pecker" and was wanting to look at his penisand pinch it. C.D. testified that defendant asked if he couldtouch C.D.'s penis and that C.D. told him that he could not. C.D. testified that defendant told him not to tell anyone becauseif he did, defendant would go back to jail and lose his family.

Everyone sat down to eat dinner at around 7:30, andthey finished at around 8:30. After dinner, Melissa played adigital video disk (DVD) movie for the children in the livingroom. C.D. testified that he once again went outside to use the"restroom," and once again, defendant followed him. C.D. testified that defendant was asking him if he could touch his penisand was asking about the size of it. C.D. again rebuffed defendant and went inside and sat down on the couch. He testifiedthat defendant went into C.D.'s parents' room.

After dinner was cleaned up and the movie had beenstarted for the children, all of the adults went into George andMelissa's bedroom. Melissa and Kelly watched television, andGeorge loaded a bowling game for defendant and him to play on thecomputer. C.D. testified that at some point later, George toldthe children to get their bedclothes on. C.D. went into thebathroom, which has two doors but only one that locks. He wasurinating when defendant entered the bathroom. Again, defendantasked C.D. if he could touch his "pecker" and was making measurements with his thumb and finger, trying to guess the size ofC.D.'s penis. C.D. testified that once again he told defendant,"no." Defendant then cornered C.D. in the bathroom, dropped tohis knees, and began to suck on C.D.'s penis. C.D. testifiedthat he did not know how long this lasted but that he did notejaculate. When defendant stopped, C.D. pulled up his pants andran out into the living room. He stated that the children werestill playing in the living room and the adults were all in hisparents' room. C.D. then went into his bedroom and changed hisclothes for bed.

George testified that while he was playing the bowlinggame with defendant, defendant stated that he was going to gochange his clothes for bed. Defendant then left the room forwhat "seemed like forever, but it was about [15] or [20] minutes." When defendant returned, he had not changed his clothes,and he was spilling a cup of coffee all over the floor. Georgetestified that defendant told him he would change later. Melissaalso testified that she noticed that defendant left the room fora long period of time while she and Kelly watched television. Both defendant and Kelly denied that defendant ever left theroom, but they did admit that he went to get a cup of coffee andthat he was spilling it.

After everyone had gotten ready for bed, C.D. lay downon the couch in the living room. Next to the couch on the floorwas defendant, K.S., and Kelly. W.S. was on the love seat nextto Kelly. As everyone was getting into bed, C.D. testified thatdefendant was pulling the blankets off of him and touching him onthe shoulder, telling him not to tell anyone because otherwisedefendant would not get to see his wife and kids anymore. C.D.got up and went into his parents' room and asked if he couldsleep on the floor in there. They let him, and he lay down onthe floor. A few minutes later, defendant came into the room toapologize for doing anything to offend C.D. Kelly testified thatdefendant did not say anything to C.D. when C.D. was on the couchin the living room but did say that he was teasing C.D. byplaying with his blanket.

The next morning, everyone woke up at around 7 a.m. Defendant and his family returned to their home in Decatur. Later that evening, C.D. told his parents what had happened theother night. After calling a friend from church for advice,George called the police and reported the incident.

Following a jury trial, defendant was convicted ofpredatory criminal sexual assault of a child. The trial sentenced him to an extended term of 42 years' imprisonment. Thisappeal followed.

II. ANALYSIS

A. Reasonable-Doubt Challenge

Defendant's first argument on appeal is that theevidence put forth by the State did not prove him guilty beyond areasonable doubt. He points to various discrepancies in thetestimonies of different witnesses about what time certain thingsoccurred during the evening. He also argues that many of thecontentions made by C.D. lack corroboration and that C.D.'stestimony of what happened is inconsistent with how C.D. actedthat evening and the next morning.

When a defendant challenges the sufficiency of theevidence, it is not a function of this court to retry the defendant. People v. Evans, 209 Ill. 2d 194, 209, 808 N.E.2d 939, 947(2004). A reviewing court must determine whether, after viewingthe evidence in the light most favorable to the prosecution, arational trier of fact could have found the essential elements ofthe crime beyond a reasonable doubt. Evans, 209 Ill. 2d at 209,808 N.E.2d at 947. We will not reverse a conviction unless theevidence is so unreasonable, improbable, or unsatisfactory thatit raises a reasonable doubt of the defendant's guilt. Evans,209 Ill. 2d at 209, 808 N.E.2d at 947.

Here, defendant does not raise any challenges thatcreate a reasonable doubt of his guilt. One would expect at agathering with four adults and four children that each person'srecollection of the events would vary slightly. Defendant canpoint only to these minor inconsistencies between the witnesses'statements.

Defendant claims that C.D.'s actions were inconsistentwith what he alleged happened and are not persuasive either. Defendant claims that C.D. remained friendly with him, even afterhe allegedly assaulted him. Defendant also notes that C.D.waited until the following evening before telling anyone aboutwhat had happened to him. A delay in reporting incidents ofsexual abuse may be reasonable where the victim's silence can beattributed to fear of the offender or to shame, guilt, andembarrassment. People v. Duplessis, 248 Ill. App. 3d 195, 199,618 N.E.2d 1092, 1096 (1993). A 12-year-old boy could certainlybe confused, ashamed, or embarrassed after being assaulted by aperson he looked upon as a close family friend. Further, determinations of credibility of witnesses, the weight to be given totheir testimony, and the reasonable inferences to be drawn fromthe evidence are responsibilities of the trier of fact. Duplessis, 248 Ill. App. 3d at 200, 618 N.E.2d at 1096. We holdthat a rational trier of fact could have found the essentialelements of the crime beyond a reasonable doubt based upon theevidence presented at trial.

B. C.D.'s Prior Conduct

Defendant next argues the trial court erred in grantingthe State's motion in limine to exclude any evidence of C.D.'sprior conduct as a sex offender, which was the subject of ajuvenile-delinquency action. C.D. had been adjudicateddelinquent when he had, on two or three occasions, placed hispenis between his younger half-brother's buttocks. Defensecounsel argued C.D.'s prior conduct and prior adjudication shouldbe admissible, first as impeachment and second to show the minorhad sufficient knowledge of sexual matters to be able tofabricate the facts of this particular episode. The Stateconceded the juvenile adjudication was admissible, for anywitness other than the accused, but argued it would not be fairto admit the juvenile's conviction but not defendant's. Thetrial court rejected that argument but excluded the juvenileadjudication. The court ruled the prejudicial value outweighedthe probative value and the sexual activity in the juvenileadjudication differed from the sexual activity charged, citingPeople v. Hill, 289 Ill. App. 3d 859, 683 N.E.2d 188 (1997).

Illinois's rape-shield statute was enacted in 1978. The policy underlying the rape-shield statute is to prevent thedefendant from harassing and humiliating the complaining witnesswith evidence of either her reputation for chastity or specificacts of sexual conduct with persons other than defendant, sincesuch evidence has no bearing on whether she consented to sexualrelations with the defendant. People v. Ellison, 123 Ill. App.3d 615, 626, 463 N.E.2d 175, 183 (1984). The supreme courtexpressed concern over the original statute's completeprohibition of evidence of the complainant's prior sexualactivity with someone other than the defendant, noting that adefendant's constitutional rights may sometimes require theadmission of such evidence. People v. Sandoval, 135 Ill. 2d 159,174-75, 552 N.E.2d 726, 733 (1990). Thereafter, the GeneralAssembly in 1994 amended the rape-shield statute to expresslyprovide that the prior sexual activity of the complainant may beadmitted "when constitutionally required." 725 ILCS 5/115-7(a)(West 1998).

The constitution requires that a defendant "bepermitted to offer certain evidence which was directly relevantto matters at issue in the case, notwithstanding that itconcerned the victim's prior sexual activity." (Emphasis inoriginal.) People v. Santos, 211 Ill. 2d 395, 405-06, 813 N.E.2d159, 164 (2004). Examples of direct relevance include evidencethat complainant had sex a month before the alleged assault,which would explain physical evidence of a cleft hymen. Peoplev. Anthony Roy W., 324 Ill. App. 3d 181, 186-87, 754 N.E.2d 866,870 (2001). Another example is evidence of a child victim'sviewing of adult videotapes, which would explain her sexualknowledge, which had been submitted as evidence of abuse. Peoplev. Mason, 219 Ill. App. 3d 76, 78-79, 578 N.E.2d 1351, 1353(1991).

"The true question is always one of relevancy." Hill,289 Ill. App. 3d at 864, 683 N.E.2d at 191. How is the fact thatthe complaining witness was adjudicated delinquent in 2001because of sexual conduct with a young boy, or was a prior victimof sexual abuse by a minor, relevant to the issues in this case? Defendant argues the adjudication was admissible because itexplains how the complaining witness had sufficient knowledge ofsexual matters to be able to fabricate his story. Defendantcites Mason for that proposition, but in Mason, the complainingwitness was only seven years old (Mason, 219 Ill. App. 3d at 77,578 N.E.2d at 1353). There was no suggestion in this case thatthe complaining witness's sexual knowledge could only have comefrom the incident charged. "Simply put, the prior sexual conductmust account for how the child could provide the testimony'ssexual detail without having suffered [the] defendant's allegedconduct." Hill, 289 Ill. App. 3d at 865, 683 N.E.2d at 192 (six-year-old girl's experience with a prepubescent boy inadmissiblein prosecution of an adult male).

Is there some relevance in the fact that thecomplaining witness here was not the victim in the prior incidentbut the perpetrator? Could the fact that a complaining witnesshad been convicted of felony prostitution be admitted on theissue of her credibility? See People v. Ivory, 139 Ill. App. 3d448, 453, 487 N.E.2d 1035, 1039 (1985) (misdemeanor prostitutionconviction not admissible). Evidence of a juvenile adjudicationof a witness other than the defendant may be employed in acriminal case for purposes of attacking the credibility of awitness. People v. Kerns, 229 Ill. App. 3d 938, 940, 595 N.E.2d207, 208 (1992); M. Graham, Cleary & Graham's Handbook ofIllinois Evidence

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