People v. Sargent ( 2010 )

Docket No. 108689.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
WILLIAM E. SARGENT, Appellant.
Opinion filed November 18, 2010.
JUSTICE KARMEIER delivered the judgment of the court, with
opinion.
Chief Justice Kilbride and Justices Freeman, Thomas, Garman,
Burke, and Theis concurred in the judgment and opinion.
OPINION
Following a jury trial in the circuit court of De Kalb County,
defendant, William Sargent, was convicted of predatory criminal
sexual assault involving J.W., his minor stepson. In the same
proceeding, he was also convicted of three counts of predatory
criminal sexual assault and two counts of aggravated criminal sexual
abuse involving J.W.’s younger brother, M.G.
On appeal, defendant argued that the circuit court committed
reversible error when it failed to tender to the jury an instruction
governing hearsay evidence as required by section 115–10(c) of the
Code of Criminal Procedure of 1963 (725 ILCS 5/115–10(c) (West
2006)). Defendant further asserted that four of his convictions should
be reversed on the grounds that the State failed to offer proof of the
corpus delicti of the crimes. Finally, defendant claimed that seven-year
sentences he received on his aggravated criminal sexual abuse
convictions should have run concurrently rather than consecutively to
the life sentence he received for his predatory criminal sexual assault
convictions.
The State conceded the sentencing error, and the appellate court
modified defendant’s sentence so that his seven-year sentences would
run concurrently with his life sentence. In all other respects, the
appellate court affirmed the circuit court’s judgment. 389 Ill. App. 3d
904. We granted defendant’s petition for leave to appeal. 210 Ill. 2d
R. 315. For the reasons that follow, we now affirm in part and reverse
in part the judgment of the appellate court. We also affirm in part and
reverse in part the circuit court’s judgment.
BACKGROUND
The record before us shows that in December of 2004, defendant
was charged with one count of predatory criminal sexual assault (720
ILCS 5/12–14.1(a)(1) (West 2004)) for allegedly placing a part of his
body in the anus of his minor stepson J.W. In a separate proceeding,
he was also charged with three counts of predatory criminal sexual
assault for allegedly placing his finger in the anus of another minor
stepson, M.G. In addition, he was charged with two counts of
aggravated criminal sexual abuse (720 ILCS 5/12–16(c)(1)(i) (West
2004)) for allegedly fondling the penis of M.G. for purposes of his
own sexual gratification.
Prior to trial, the State filed notice, in each case, of its intention to
offer hearsay statements from M.G. and J.W. pursuant to section
115–10 of the Code of Criminal Procedure of 1963 (725 ILCS
5/115–10 (West 2006)), which permits, among other things, the
admission of hearsay statements made by victims in cases involving
sexual abuse of a child. The specific materials which the State sought
to admit were a videotaped interview of M.G. conducted by a worker
for the Department of Children and Family Services (DCFS) on
November 24, 2004; statements made by J.W. to his guardian, a
DCFS worker and a police detective in 2004; and separate videotaped
interviews which the DCFS worker and the detective conducted with
J.W. on December 9, 14 and 29 of 2004.
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Following an evidentiary hearing, the circuit court determined that
the boys’ out-of-court statements were sufficiently reliable to render
them admissible. At the same time, the court denied motions filed by
defendant pursuant to section 114–11 of the Code of Criminal
Procedure of 1963 (725 ILCS 5/114–11 (West 2006)) to suppress an
inculpatory statement defendant had given during an interview at
police headquarters prior to his arrest.
The State subsequently filed a motion under section 114–7 of the
Code of Criminal Procedure of 1963 (725 ILCS 5/114–7 (West
2006)) asking that the two cases be tried together. The motion was
granted by the court over defendant’s objection. The court also
granted a motion filed by the State under section 115–7.3 of the Code
of Criminal Procedure of 1963 (725 ILCS 5/115–7.3 (West 2006)) to
permit evidence of defendant’s criminal conduct with respect to each
victim to be admitted in connection with both of the now joined
prosecutions.
The matter ultimately proceeded to trial before a jury in February
of 2007. The State’s first witness was M.G. When M.G. was alleged
to have been victimized, he was six years old. By the time trial
commenced, he was eight.
On questioning by the State, M.G. testified that he currently lived
with “Chad and Mindy.” Mindy is his maternal aunt, Melinda. Chad
is Mindy’s husband. M.G. also stated that he had previously lived with
Melissa, who “used to be” his mother, and that Melissa was married
to a man named Bill. By Bill, M.G. meant defendant, whose first name
is William.
M.G. testified that when he lived with Melissa and Bill, it was in
a brick building. The prosecuting attorney asked M.G. whether he
remembered Bill “doing anything to [him] that [he] didn’t like when
[he] lived in that brick apartment.” M.G. responded: “I don’t
remember.” With this, direct questioning of M.G. ended. He was not
cross-examined.
Joseph Veronda, an Illinois Department of Children and Family
Services child protective investigator, was called to the stand next. He
testified that he had been asked to interview M.G. in connection with
“allegations of possible risk of harm to the child that he may have
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suffered while in the custody of his mother.” During that interview,
M.G. had stated that “he had a secret.” At the hearing on the pretrial
motion to admit the hearsay statements made by M.G. and J.W.,
Veronda testified that when he asked M.G. what the secret was, M.G.
told him that “Bill had put his finger in [M.G.’s] butt.” At trial,
Veronda recalled M.G. telling him that “Bill puts Bill’s finger in
[M.G.]’s butt.”
Veronda later interviewed M.G. regarding the allegations, and the
State submitted a video of the interview as evidence. In the video,
Veronda asked M.G. to tell him about a secret that M.G. and Bill had.
M.G. stated that Bill “thought he put his finger in my butt,” but that
Bill “did not stick his finger in my butt,” and that he had “made sure
that Bill did not touch my butt.” When Veronda asked him if anyone
had ever put his finger in M.G.’s butt, he said “No.” Eventually M.G.
wrote on an easel that Bill “Poot his thigr in my but [sic].” M.G. also
stated that Bill put his finger in M.G.’s butt and that the incident
occurred at their old house, which was brick. Veronda then asked him
how many times that had happened, to which he responded verbally
and in writing, “I don’t know.” Veronda asked M.G., “Did it happen
one time or more than one time?” M.G. responded by writing the
numeral one.
The video of M.G. was followed by testimony from Melissa
Sargent, his biological mother. Melissa related that M.G. was born
March 3, 1998. He was eventually adopted by her sister, Melinda, and
her sister’s husband, Chad. Melissa further testified that J.W. was born
January 15, 1992, and now lived with his aunt Robin. Melissa initially
stated that both boys stopped living with her in March of 2003, when
M.G. had just turned five, but admitted during cross-examination that
she was not certain whether it was 2003 or 2004 when the boys went
to live with their aunts. After the boys moved out, neither ever
returned to live with her.
According to Melissa, she married defendant in April of 2002. She
was certain of the year because, she recalled, it was the same year her
former husband drowned and her father was shot. Melissa recounted
that the couple moved into a brick building in DeKalb in March or
June of the same year. The couple lived together there until sometime
in 2004. She stated that while she was at work during the day, the
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boys would be placed in day care or watched by defendant, who
worked a night shift. She and defendant are now divorced.
Following Melissa’s testimony, the State called Melissa’s sister
Robin, who was serving as J.W.’s guardian. Robin stated that she was
employed as the alcohol, drug and early intervention coordinator for
DeKalb County Youth Services, where she also conducted therapy for
adolescents and their families. She testified that J.W. first began living
with her on a permanent basis in March of 2004. After he moved in,
he was diagnosed with Asperger’s Syndrome, which she described as
an autism spectrum disorder. Because of this condition, he has an
extremely difficult time with social situations, does not know how to
make friends, and finds it hard to communicate and express his
emotions. He does, however, receive good grades in school.
Robin recalled that in December of 2004, Melissa advised her that
defendant had been arrested and was in the county jail for allegedly
molesting M.G. and J.W. The same evening she received this news,
Robin went for a walk with J.W. and the family’s dog. During the
walk, she asked J.W. if he knew what sexual abuse was. He replied
that he did not. Robin then explained to him that “sexual abuse was
when anybody touched him on his penis or his butt with their hands or
their mouth or if that person had them touch them in those places.”
Robin recalled that J.W. got quiet. After 5 or 10 minutes passed, she
reassured him that “it was okay to tell the truth because he was safe
now and he wasn’t going to be hurt anymore.” J.W. then responded
by telling her that defendant had tried to put his penis in J.W.’s “butt”
at least once a month, but that he had not touched him in any other
way. The next day, Robin spoke with Melissa Garman from the
Illinois Department of Children and Family Services about making
arrangements for J.W. to be interviewed at the Children’s Advocacy
Center.
The State next called J.W., who was then 15 and a freshman in
high school. J.W. told the jury that before he had gone to live with
Robin, he had resided with his mother, Melissa, and defendant in two
different places, first on First Street and then in an apartment on
Kimberly Drive. J.W. stated that while living in the apartment with his
mom and defendant, defendant would try to “stick his penis in my
butt.” When the prosecuting attorney asked J.W. if defendant had
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been successful in doing so, J.W. stated that he had. According to
J.W., this happened about once a month beginning when he was in
fifth grade, after the family first moved into the Kimberly Drive
apartment. The abuse ended when J.W. moved out to live with
relatives.
On cross-examination, J.W. stated that the abuse took place in a
bedroom of the apartment during times when his mother was at home.
He testified that his mother was not present in the room during the
abuse, that he did not cry out, and that he could not recall whether he
had told his mother about the incidents. He did not discuss the abuse
with Robin until approximately a year after he moved in with her. He
said he was too nervous to mention it earlier and that it all came out
after Robin advised him that defendant had confessed.
The court next heard testimony from Tracy Mueller, a forensic
interviewer for the Children’s Advocacy Center. Mueller explained
that forensic interviews are an investigative tool used to obtain
information from children in cases of suspected child abuse. They are
conducted in a “child-friendly” environment following a standardized
interview process. The interviews are videotaped, with representatives
from the local State’s Attorney’s office, law enforcement, and the
Department of Children and Family Services observing from another
room.
Mueller stated that she conducted a forensic interview of J.W. in
December of 2004. This was not the first time she had met him. She
had previously interviewed him in connection with a matter unrelated
to the events relevant to this case.
A video of Mueller’s December 2004 interview was played for the
jury and included in the record. During the interview, J.W. identified
defendant as his stepfather and explained that he had previously lived
with defendant. When Mueller asked J.W. about defendant, J.W. told
her that he would like to put a gun to defendant’s head because
defendant had abused him “in a sexual way.” J.W. recalled that during
the first incident, defendant “tried to have sex with him.” His mother
was not at home at the time, but his little brother, M.G., was.
J.W. stated that the abuse continued and that defendant would
come into his bedroom and “tr[y] to put his winkie [ i.e., penis]” in his
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butt. J.W. reported that defendant did this approximately once a
month. Later in the interview, J.W. told the interviewer that, when he
said that his stepfather “tried” to abuse him, J.W. was expressing what
he wished had happened (i.e., that he had merely made the attempt but
not been successful). J.W. initially denied that defendant had abused
him in other ways and said that defendant had never made J.W. touch
defendant’s penis and that defendant had never touched J.W.’s penis.
J.W. later claimed that defendant had, in fact, touched J.W.’s penis
and that he had had to touch defendant’s penis. J.W. reported that the
incidents occurred in his bedroom. His little brother, M.G., was not
involved and he never saw defendant touch M.G.’s penis. He did,
however, witness defendant strike M.G. on multiple occasions.
As the interview progressed, Mueller again asked J.W. whether
defendant had ever touched him on his butt using his penis. J.W.
answered in the affirmative, stating that this had happened once. In
describing the incident, J.W. said that defendant removed J.W.’s
pants, threw his underwear across the room, and put his “private” or
“winkie” in J.W.’s butt. According to J.W., defendant’s penis touched
his butt on the outside. It never touched the inside, but it hurt. J.W.
said it was his dream that defendant would be put behind bars.
Detective Mark Nachman of the DeKalb police department
testified next. He stated that he had interviewed J.W. on December
29, 2004, and defendant on December 9, 2004. He recounted the
circumstances leading to the interviews. With respect to the interview
of defendant, Nachman testified that the morning of December 9, he
drove to defendant’s home and asked defendant to come to the police
station to speak with him. Nachman then left, and defendant drove
himself to the station.
Nachman stated that after an initial conversation with defendant
lasting approximately one-half hour, he began the videotaped portion
of the interview. Nachman verified the authenticity of that video
recording. The recording was then admitted into evidence and played
for the jury.
At the outset of the video, defendant consented to having the
interview recorded, and Nachman explained to him that he was not
under arrest. Defendant then told Nachman that he had placed his
finger in M.G.’s anus 50 to 70 times within the past year or year and
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a half, sometimes while wearing a condom on his finger. He said that
the incidents usually occurred in the bathroom but that they sometimes
happened in M.G.’s bedroom. Defendant said he engaged in this
conduct because his wife would not have anal sex with him. He
admitted that it stimulated him sexually.
Defendant told Nachman that there might have been a few times
when he touched M.G.’s penis, but that M.G. never touched
defendant’s penis. Defendant denied putting his penis in M.G.’s butt.
He claimed, however, that he had pushed M.G.’s butt with a stick and
put a toy car between the cheeks of M.G.’s buttocks. Defendant also
recalled that he caused M.G. to watch him masturbate.
With respect to J.W., defendant estimated that he had touched
J.W.’s anus with his finger 30 to 40 times, often in the shower, and
that he masturbated J.W. 20 times, sometimes to the point of orgasm.
Defendant also recalled that J.W. helped defendant masturbate several
times. In addition, defendant told Nachman that there were about 20
incidents in which something of a sexual nature happened when J.W.,
M.G., and defendant were together at the same time. Defendant states
that, during those incidents, he sometimes made J.W. and M.G. touch
each other’s penises. When asked whether Melissa was aware of these
activities, defendant responded “maybe,” but said she never
participated. Defendant denied that there was any oral contact
between him and the boys, explaining that “that is going way too far.”
The video shows that Nachman left the interview room for a brief
period of time. When he returned, he asked defendant about the
circumstances of the interview. Defendant stated that everything had
been done voluntarily, that he had come to the police station on his
own, and that he had understood what Nachman had said to him.
After Nachman explained to defendant that he was taking the matter
to the State’s Attorney’s office and that criminal charges would likely
be filed, he gave defendant his telephone number and defendant left.
When the videotape concluded, defendant’s attorney cross-
examined Nachman regarding the interviews with J.W. and defendant.
Nachman explained that the videotape of J.W. was actually the second
interview J.W. had given. The initial interview was conducted on
December 16, but when the interview ended, Nachman discovered
that the recording equipment had not worked properly. Due to the
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Christmas holidays, they were not able to redo the interview for
approximately two weeks. According to Nachman, the second
interview was essentially the same as the first.
With respect to the December 9 interview of defendant, Nachman
was cross-examined as to how and where the interview was
conducted. Nachman explained that while the doors outside the
interview room were locked, the door to the interview room itself was
not locked. Nachman confirmed that he had told defendant “at all
times that he was free to leave,” asserted that he would not have
arrested defendant if defendant had told him he did not want to
continue after their pretaping conversation, and stated that defendant
was not, in fact, arrested until the following day.
After Nachman’s testimony and presentation of the videotaped
interviews, the State called Jacqueline Weber, M.S., as an expert
witness on the subject of child sexual abuse accommodation
syndrome. According to Weber, the syndrome is a “recognized form
of post-traumatic stress disorder” that affects “the typical response
pattern of the typical child who has been sexually abused.” Weber
explained that children who are abused frequently keep the abuse
secret. Most, in fact, will never tell at all. Feelings of helplessness are
common. Victims are “basically entrapped” by their abusers and are
forced to “accommodate in or to survive in that environment.” When
they do disclose the abuse, the disclosure is often delayed and
embellished with unconvincing details, added to permit the child to
save face. Weber testified that children who have been abused will
also frequently recant their accusations.
On cross-examination, Weber clarified that she had never spoken
with M.G. or J.W. and that when she gave her testimony, she was
“only talking [o]n a generalized basis.” She stated that a diagnosis of
child sexual abuse accommodation syndrome is predicated on the
assumption that child abuse occurred and “was not developed as a
means of detecting abuse.”
With Weber’s testimony, the State rested its case. Defendant’s
attorney moved for a directed verdict. When that motion was denied,
defendant elected to testify on his own behalf.
On questioning from his attorney, defendant stated that he married
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Melissa on April 19, 2002, and lived with her and her two sons, M.G.
and J.W. in an upstairs apartment on First Street in the City of
DeKalb. They remained in the apartment for about six months, when
a fire in a downstairs apartment forced them to move. After staying at
an apartment temporarily, they moved into a new apartment on
Kimberly Drive. Defendant recalled moving in there on the first of
June 2003, and remaining there until the following October, when he
“got kicked out for abuse of the kids.”
Defendant explained that by “abuse of the kids,” he was referring
to accusations apparently initiated by his wife that he had been
“spanking them and stuff like that.” Defendant testified that when he
moved in with Melissa, her preferred form of disciplining the children
was striking them with her hands and a belt. He told the jury he had
simply adopted the same practices because “at that time we wasn’t
married and it’s her household so I was following her rules.”
After being kicked out of the apartment, defendant lived separately
for a period of time before reconciling with Melissa. He remained with
the family in the apartment on Kimberly Drive until April of 2004,
when he split up with Melissa and moved elsewhere. While he was
back at the Kimberly apartment, defendant was employed as a stock
clerk at a discount store, a position he had held since November of
2002. He worked a night shift from 10 p.m. until 7 a.m. He said that
he would return home from work around 7:30 or 8 in the morning and
go to bed.
According to defendant, the boys were not normally home during
the day on weekdays. They were either at the babysitter’s house or at
school. Melissa would pick them up from the babysitter’s on her way
home from work. As a result, defendant had little contact with the
boys during the day.
On weekends, J.W. spent most of his time at his Aunt Robin’s.
Defendant and M.G. would watch movies when defendant was not at
work. Defendant stated that he did not have a close relationship with
J.W., but was more like a dad to M.G. During the interval when he
moved out, he had no contact with either child.
Defendant was then questioned about the interview he had with
Detective Nachman on December 9, 2004. Defendant recalled that
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Nachman appeared at his apartment before 9 a.m., shortly after
defendant had returned from his overnight shift at work. Nachman
requested that he come to the police department to answer a few
questions, and defendant complied. Defendant stated that he had no
clue what Nachman wanted to speak to him about, but suspected it
might have to do with his spanking the boys. Nachman eventually told
him, however, that the interview was related to allegations that
something sexual had happened between defendant and M.G.
Defendant testified that although Nachman told him he was not
under arrest and was free to leave at any time, he heard the door to
the interview room lock when he entered and assumed that he would
have to ask for help if he wanted to go back out. Defendant described
the room as very tiny. He said he felt very uncomfortable and scared
because he did not know what was going on.
Defendant told the jury that he never placed his finger in M.G.’s
anus and that he told Detective Nachman that he had because he was
frightened of and intimidated by authority. He said his claim that he
had touched M.G. inappropriately 50 to 70 times was something he
made up off the top of his head. He fabricated the story because
Nachman had told him that “if I would just tell him the truth,
whatever, then at the end of the interview I could leave.” He said he
was scared of being arrested and was just putting on a show.
Defendant denied that he ever touched M.G.’s penis or did
anything else with M.G. for purposes of sexual gratification. He said
M.G. never watched him masturbate and never touched him while he
masturbated. He stated that J.W. would always ask him for soap or a
towel while J.W. was in the shower and he would take those items to
him. He denied watching J.W. shower, manually stimulating J.W.,
masturbating in front of J.W., kissing J.W., putting his finger in J.W.’s
anus or engaging in any activities with J.W. for purposes of sexual
gratification. He also said he never watched pornography with the
boys.
The defense concluded with brief testimony from one of
defendant’s siblings. The State then presented rebuttal testimony from
Nachman to clarify a point concerning his interview of defendant in
2004. Following closing arguments, the case was submitted to the
jury, which found defendant guilty on all counts. The case was then
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set for sentencing.
At the sentencing hearing, the court listened to a victim impact
statement written by Robin, J.W.’s aunt and guardian, and heard
arguments in aggravation and mitigation by counsel. It then sentenced
defendant to a term of natural life imprisonment for the predatory
criminal sexual assault convictions pursuant to section
12–14.1(b)(1.2) of the Criminal Code of 1961 (720 ILCS
5/12–14.1(b)(1.2) (West 2006)). The trial court also imposed seven-
year terms of imprisonment for the two aggravated criminal sexual
abuse convictions, which were to run concurrently to each other but
consecutively to defendant’s sentence of natural life.
Defendant moved for a new trial, arguing that because of the
brevity of its deliberations (under 45 minutes), the jury could not have
given adequate consideration to the evidence. Defendant also argued
that he was prejudiced by the refusal of jail personnel to permit him to
get a haircut and shave prior to trial and by the decision of jailers to
transport him to and from jail in a way which may have enabled jurors
to seem him wearing his orange jail jumpsuit.
The circuit court denied defendant’s new trial motion. Defendant
then appealed, raising the points noted earlier in this opinion. The
State agreed with defendant’s claim that his sentence should be
modified, and the appellate court modified the sentence so that the
two seven-year aggravated criminal sexual abuse sentences would run
concurrently with the sentences for predatory criminal sexual assault.
In all other respects, the circuit court’s judgment was affirmed. 389
Ill. App. 3d 904. Defendant then petitioned this court for leave to
appeal, which we allowed. 210 Ill. 2d R. 315.
ANALYSIS
As grounds for his appeal, defendant first contends, as he did in
the appellate court, that the State failed to prove him guilty beyond a
reasonable doubt on two of the three counts charging him with
predatory criminal sexual assault of M.G. or on either of the two
counts charging him with aggravated criminal sexual abuse of M.G.
Specifically, defendant argues that the only evidence adduced by the
State on those counts consisted of his own, uncorroborated confession
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(which he repudiated at trial), and that under established Illinois law,
a defendant’s confession, standing alone, is not sufficient to prove that
a crime occurred.
Under the law of Illinois, proof of an offense requires proof of two
distinct propositions or facts beyond a reasonable doubt: (1) that a
crime occurred, i.e., the corpus delicti; and (2) that the crime was
committed by the person charged. People v. Lambert, 104 Ill. 2d 375,
378 (1984), quoting People v. Kirilenko, 1 Ill. 2d 90, 94 (1953). In
many cases, and this is one, a defendant’s confession may be integral
to proving the corpus delicti. It is well established, however, that
proof of the corpus delicti may not rest exclusively on a defendant’s
extrajudicial confession, admission, or other statement. People v.
Furby, 138 Ill. 2d 434, 446 (1990). Where a defendant’s confession
is part of the proof of the corpus delicti, the prosecution must also
adduce corroborating evidence independent of the defendant’s own
statement. People v. Cloutier, 156 Ill. 2d 483, 503 (1993). If a
confession is not corroborated in this way, a conviction based on the
confession cannot be sustained. People v. Willingham, 89 Ill. 2d 352,
358-59 (1982).
The corroboration requirement stems from an historical mistrust
of extrajudicial confessions. Furby, 138 Ill. 2d at 447. Two reasons
are commonly advanced for this mistrust: (1) confessions are
unreliable if coerced, and (2) for various psychological reasons,
persons “confess” to crimes either that have never occurred or for
which they are not legally responsible. People v. Dalton, 91 Ill. 2d 22,
29-30 (1982).
Although the corroboration requirement demands that there be
some evidence, independent of the confession, tending to show the
crime did occur, that evidence need not, by itself, prove the existence
of the crime beyond a reasonable doubt. If the defendant’s confession
is corroborated, the corroborating evidence may be considered
together with the confession to determine whether the crime, and the
fact the defendant committed it, have been proven beyond a
reasonable doubt. See People v. Phillips, 215 Ill. 2d 554, 576 (2005).
Some authorities have suggested that the corroboration
requirement may be satisfied either by (1) evidence which
substantiates that a crime took place or (2) evidence which
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corroborates material elements of the confession so as to satisfy the
court that the confession was not simply a byproduct of the
defendant’s imagination. See, e.g., 3 Ill. Jur. Criminal Law &
Procedure §19:08 (1999). While acknowledging that this court has,
itself, made statements in several cases to the effect that “if there is
corroborating evidence that tends to confirm the circumstances related
in the confession, both can be considered in determining whether the
corpus delicti is sufficiently proved in a given case,” we have
specifically held that such statements do “not obviate the requirement
that either some independent evidence or the corroborating evidence
tend to establish that a crime occurred.” People v. Willingham, 89 Ill.
2d at 360.
In this case, there is no question that the evidence adduced at trial
was sufficient to support defendant’s conviction for predatory criminal
sexual assault of J.W. The only challenge is to the sufficiency of the
evidence with respect to certain of the charges involving M.G. As
described earlier in this opinion, defendant was charged with two
counts of aggravated criminal sexual abuse of M.G. based on
allegations that he had intentionally fondled M.G.’s penis for purposes
of his own sexual gratification. Aside from defendant’s confession,
however, there was no evidence of any kind to corroborate that
defendant had, in fact, ever touched M.G.’s penis for any purpose.
The only unlawful contact proven by the nonconfession evidence
involved defendant’s insertion of his finger into M.G.’s anus.
The State contends that evidence of defendant’s penetration of
M.G.’s anus with his finger and of J.W.’s anus with his penis provides
sufficient corroboration that defendant also fondled M.G.’s penis. We
note, however, that these were separate acts which gave rise to
separate charges. Our precedent demonstrates that under the
corroboration rule, the independent corroborating evidence must
relate to the specific events on which the prosecution is predicated.
Correspondingly, where a defendant confesses to multiple offenses,
the corroboration rule requires that there be independent evidence
tending to show that defendant committed each of the offenses for
which he was convicted. See People v. Bounds, 171 Ill. 2d 1, 42-46
(1995).
Such proof is lacking here. As we just noted, aside from
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defendant’s confession, no evidence was adduced which tended to
support the charges that defendant fondled M.G.’s penis for purposes
of his own sexual gratification. There may be circumstances where
criminal activity of one type is so closely related to criminal activity of
another type that corroboration of one may suffice to corroborate the
other, but such circumstances are not present here. See People v.
Richmond, 341 Ill. App. 3d 39, 46 (2003) (corroboration rule applied
to overturn conviction and sentence involving unlawful penis-to-
vagina contact, notwithstanding defendant’s confession, where
corroborating evidence substantiated only penis-to-anus contact).
Defendant’s convictions and sentences on the two counts of
aggravated criminal sexual abuse of M.G. must therefore be reversed.
The corroboration rule is similarly fatal to two of defendant’s
three convictions for predatory criminal sexual assault of M.G. During
his interview with Detective Nachman, defendant confessed to
penetrating M.G.’s anus with his finger 50 to 70 times. At trial,
however, defendant repudiated his confession, and M.G., himself,
testified that he could not remember whether defendant had done
anything to him he did not like.
The only corroboration that any anal penetration occurred came
from extrajudicial statements made by M.G. to Joseph Veronda, the
DCFS investigator. At trial Veronda recalled that M.G. had told him
that “Bill [i.e., defendant] puts Bill’s finger in [M.G.’s] butt.” The State
suggests that the form of the verb “put” used by Veronda, a form
which included the letter “s,” tends to confirm that the conduct
occurred multiple times. We disagree for several reasons.
First, adding an “s” to a noun makes the noun plural, but adding an
“s” to a verb does not make the verb plural. Verbs do not have number.
They have tense, mood and voice. See Warriner’s English Grammar
and Composition 143-61 (rev. ed. 1965). In this version of the
statement recalled by Veronda, “puts” is the present indicative form of
the verb. It describes something the subject, Bill, does. It does not tell
us how often he does it.
While the present indicative form may be employed to indicate
habitual action, imputing such an intention to M.G. would be entirely
speculative. M.G., after all, was under the age of seven at the time he
allegedly made the statement in question. No special expertise is
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necessary to appreciate that the language skills of typical children that
age are undeveloped and imperfect. Their word choices can be
inventive and unorthodox as they struggle to express their thoughts
using language tools they do not yet fully grasp. Their understanding
of the nuances of English grammar may be many years away. Nothing
in the record before us, including the materials M.G. wrote, his
testimony at trial or his videotaped interview, suggest his language
skills had progressed beyond this basic and formative level.
Second, while Veronda used the word “puts” rather than “put” in
relating M.G.’s statements, it is not even clear that his word choice was
deliberate. We say this because it conflicts with Veronda’s previous
testimony in the case. At the pretrial hearing on admissibility of
extrajudicial statements made by M.G. and J.W., where Veronda
initially related, under oath, what M.G. had told him, Veronda testified
that M.G. had said simply that “Bill had put his finger in [M.G.’s]
butt,” using a form of the word put without an “s.” He further testified
that after receiving this response, he asked M.G. again about the matter
and that M.G. had repeated that “Bill had put his finger in his butt,”
again using a form of the word put without an “s.”
The statements made by M.G. himself during his videotaped
interview, which was presented to the jury, corroborated this version
of Veronda’s testimony. As previously described in this opinion, during
the course of the interview, M.G. wrote on an easel that Bill “Poot his
thigr in my but [sic]” and then stated that “Bill put his finger in my
butt,” using a form of put without the “s” each time. In addition, when
asked by Veronda how many times defendant had put his finger in
M.G.’s butt, M.G. responded by writing the numeral one.
In light of the foregoing, there can be no doubt that the evidence
clearly corroborated that defendant had used his finger to penetrate
M.G.’s anus on one occasion. Equally clear, however, is that there was
no actual corroboration for defendant’s claim that he had used his
finger to penetrate M.G.’s anus more than once. Accordingly, only one
of defendant’s three convictions for predatory criminal sexual assault
of M.G. may stand. The remaining two convictions must be reversed.
The State seeks to avoid this result by arguing that our court
should put aside stare decisis considerations and abandon the principle
that corroboration of a defendant’s extrajudicial confession is necessary
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to prove that a criminal offense occurred. We have been invited to
abandon the corroboration rule in the past and declined to do so.
People v. Dalton, 91 Ill. 2d at 29-30; People v. Lambert, 104 Ill. 2d at
380-81. The rule has been recognized in this state since the mid-
nineteenth century. See Bergen v. People, 17 Ill. 425, 427-28 (1856).
A hundred and fifty years later, our court has continued to apply it. See
People v. Phillips, 215 Ill. 2d at 576. The State did not take issue with
the validity of the corroboration rule when this case was pending in the
appellate court, and it offers no persuasive reasons for why we should
break with a century and a half of precedent and jettison the rule today.
Defendant next argues that the circuit court committed reversible
error when it failed to tender to the jury an instruction governing
hearsay evidence as required by section 115–10(c) of the Code of
Criminal Procedure of 1963 (725 ILCS 5/115–10(c) (West 2006)).
That statute provides:
“If a statement is admitted pursuant to this Section
[governing hearsay exceptions for out-of-court statements
made by children or mentally retarded persons who were
victims of physical or sexual acts in cases prosecuted under
various enumerated statutes], the court shall instruct the jury
that it is for the jury to determine the weight and credibility to
be given the statement and that, in making the determination,
it shall consider the age and maturity of the child, or the
intellectual capabilities of the *** retarded person, the nature
of the statement, the circumstances under which the statement
was made, and any other relevant factor.” 725 ILCS
5/115–10(c) (West 2006).
There is no dispute that the case before us was subject to this
provision and that the instruction specified by the statute was not
given. The record also shows, however, that defense counsel did not
ask the trial court to give such an instruction, nor did defense counsel
raise the failure to give such an instruction in defendant’s posttrial
motion.
Supreme Court Rule 366(b)(2)(i) (155 Ill. 2d R. 366(b)(2)(i))
expressly provides that “[n]o party may raise on appeal the failure to
give an instruction unless the party shall have tendered it.” In addition,
our court has held that a defendant will be deemed to have procedurally
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defaulted his right to obtain review of any supposed jury instruction
error if he failed to object to the instruction or offer an alternative at
trial and did not raise the issue in a posttrial motion. People v.
Piatkowski, 225 Ill. 2d 551, 564 (2007).
Limited relief from this principle is provided by Supreme Court
Rule 451(c) (177 Ill. 2d R. 451(c)), which states that “substantial
defects” in criminal jury instructions “are not waived by failure to make
timely objections thereto if the interests of justice require.” In our view,
however, this exception is inapplicable to the case before us.
The purpose of Rule 451(c) is to permit correction of grave errors
and errors in cases so factually close that fundamental fairness requires
that the jury be properly instructed. The rule is coextensive with the
plain-error clause of Supreme Court Rule 615(a) (134 Ill. 2d R.
615(a)), which provides:
“Any error, defect, irregularity, or variance which does not
affect substantial rights shall be disregarded. Plain errors or
defects affecting substantial rights may be noticed although
they were not brought to the attention of the trial court.”
See People v. Piatkowski, 225 Ill. 2d at 564.
The plain-error doctrine is a familiar one. It permits a reviewing
court to consider unpreserved error when (1) a clear or obvious error
occurs and the evidence is so closely balanced that the error alone
threatened to tip the scales of justice against the defendant, regardless
of the seriousness of the error, or (2) a clear or obvious error occurs
and that error is so serious that it affected the fairness of the
defendant’s trial and challenged the integrity of the judicial process,
regardless of the closeness of the evidence. People v. Piatkowski, 225
Ill. 2d at 565.
As a matter of convention, our court typically undertakes plain-
error analysis by first determining whether error occurred at all. If error
is found, the court then proceeds to consider whether either of the two
prongs of the plain-error doctrine have been satisfied. Under both
prongs, the burden of persuasion rests with the defendant. People v.
Naylor, 229 Ill. 2d 584, 593 (2008).
In this case, there is no dispute that the jury should have been
instructed in accordance with section 115–10(c) of the Code of
Criminal Procedure of 1963 (725 ILCS 5/115–10(c) (West 2006)) and
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that sending the case to the jury without such an instruction was a clear
and obvious error. The question we must therefore consider is whether
either prong of the plain-error test has been satisfied so that we may
overlook this procedural default and consider the error on this appeal.
In undertaking our analysis, we consider the error only as it
pertains to defendant’s conviction for predatory criminal sexual assault
involving J.W. and one of the three counts of predatory criminal sexual
assault for which he was convicted in connection with M.G. That is so
because, as we have just concluded, the remaining convictions, for two
counts of aggravated criminal sexual abuse and two of the three counts
of predatory criminal sexual assault involving M.G., must be reversed.
Regardless of instructional error, those convictions, and their
corresponding sentences, cannot stand.
With respect to the first prong of the plain-error doctrine, namely,
whether the evidence was “so closely balanced that the error alone
threatened to tip the scales of justice against the defendant,” we
conclude, as did the appellate court, that the evidence was not closely
balanced. Defendant’s confession and the statements made by J.W. and
M.G., when taken together, overwhelmingly established defendant’s
guilt for one count of predatory criminal sexual assault involving each
of the two boys.
The second prong of the plain-error doctrine also offers no relief
to defendant. The purpose of this prong of the doctrine is to guard
against errors that erode the integrity of the judicial process and
undermine the fairness of the defendant’s trial. Unlike the first prong,
prejudice need not be established. Rather, because of the importance
of the right involved, prejudice is presumed. People v. Herron, 215 Ill.
2d 167, 187 (2005).
The function of jury instructions is to convey to the jurors the law
that applies to the facts so they can reach a correct conclusion. The
erroneous omission of a jury instruction rises to the level of plain error
only when the omission creates a serious risk that the jurors incorrectly
convicted the defendant because they did not understand the applicable
law, so as to severely threaten the fairness of the trial. People v. Hopp,
209 Ill. 2d 1, 8 (2004). This standard is a difficult one to meet. We
have noted, for example, that it is not necessarily plain error to omit the
definition of a term used to instruct the jury on the essential issue in the
case. Even an incorrect instruction on an element of the offense is not
necessarily reversible error. People v. Hopp, 209 Ill. 2d at 10.
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Defendant has failed to persuade us that the absence of the
instruction required by section 115–10(c) of the Code of Criminal
Procedure of 1963 (725 ILCS 5/115–10(c) (West 2006)) severely
threatened the fairness of his trial. Defendant cites our decision in
People v. Mitchell, 155 Ill. 2d 344 (1993), to support his position. In
that case we did conclude that the failure to give an instruction
pursuant to section 115–10(c) of the Code of Criminal Procedure
constituted plain error. As the appellate court in this case correctly
observed, however, we found plain error in Mitchell based on the first
prong of the plain-error doctrine. The evidence was closely balanced.
See People v. Mitchell, 155 Ill. 2d at 354. We did not hold, directly or
indirectly, that plain error would have existed under the doctrine’s
second prong had the evidence of the defendant’s guilt not been so
close. See 389 Ill. App. 3d at 919.
We note, moreover, that the jury in this case was not left without
direction regarding how it was to approach the victims’ statements.
Among the instructions it was given was the following:
“Only you are the judges of the believability of the
witnesses and the weight to be given to the testimony of each
of them. In considering the testimony of any witness you may
take into account his ability and opportunity to observe, his
age, his memory, his manner while testifying, any interest, bias
or prejudice he may have, and the reasonableness of his
testimony considered in the light of all the evidence in the
case.”
It is useful to compare this instruction, which was based on Illinois
Pattern Jury Instructions, Criminal, No. 1.02 (4th ed. 2000), with the
pattern instruction adopted by the Supreme Court Committee on Jury
Instructions in Criminal Cases for use where, as here, statements have
been admitted under section 115–10(c) of the Code of Criminal
Procedure. The pattern instruction states, in relevant part:
“It is for you to determine [whether the statements were made
and, if so,] what weight should be given to the statements. In
making that determination, you should consider the age and
maturity of [the alleged victim], [and] the nature of the
statements, and the circumstances under which the statements
were made [, and [insert any other relevant factor concerning
the weight and credibility of the statements]].” Illinois Pattern
Jury Instructions, Criminal, No. 11.66 (4th ed. 2000).
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While the language in these two instructions differs, they convey
similar principles regarding the jury’s role in assessing witness
credibility and the various criteria jurors may consider when making
that assessment. Under similar circumstances, where instructions based
on Illinois Pattern Jury Instructions, Criminal, No. 1.02, have been
given to the jury, our appellate court has held that the failure to also
tender an instruction based on Illinois Pattern Jury Instructions,
Criminal, No. 11.66, was actually harmless and not even subject to the
plain error rule. See People v. Booker, 224 Ill. App. 3d 542, 556
(1992); People v. Richmond, 341 Ill. App. 3d 39, 50 (2003).
Dicta in our decision in People v. Mitchell, 155 Ill. 2d at 354-55,
can be read to suggest that instructions similar to Illinois Pattern Jury
Instructions, Criminal, No. 1.02, may not be sufficient if they do not
specifically reference “the weight and credibility to be given the child’s
statement or *** the age and maturity of the child, the nature of the
statement, or the circumstances under which the statement was made.”
In expressing our views in that case, however, we were concerned not
merely by the failure to tender an instruction that followed Illinois
Pattern Jury Instructions, Criminal, No. 11.66, but also by the more
fundamental failure of the trial court to conduct a hearing, as mandated
by section 115–10(b) of the Code of Criminal Procedure of 1963, to
determine that the time, content, and circumstances of the victim’s
statement provided sufficient safeguards of reliability.
That circumstance is not present here. A hearing was conducted
pursuant to section 115–10(b) of the Code of Criminal Procedure of
1963, before the jury was allowed to hear and see victims’ extrajudicial
hearsay statements. In addition, as the appellate court here correctly
pointed out, the jury in this case was specifically instructed to take into
account the witnesses’ ages. Moreover, the directive for the jury to
take into account the nature of the statement, or the circumstances
under which the statement was made, seems implicit in the instruction
it did receive “to take into account [the witnesses’] ability and
opportunity to observe *** and the reasonableness of his testimony
considered in the light of all the evidence in the case.” See 389 Ill. App.
3d at 921. We also agree with the appellate court that while the jury
was not specifically instructed on the victims’ videotaped statements,
which were not technically testimony,
“the statements were played for the jury during the testimonial
portion of the trial (and as part of the testimony of the
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interviewers to whom the boys made the statements), and they
had the same effect–allowing the jury to hear the [victims’]
accusations in their own words–as testimonial evidence.” 389
Ill. App. 3d at 921.
Under these circumstances, it seems highly likely that the jury
understood that the victims’ videotaped statements fell within the terms
of the instruction it received based on Illinois Pattern Jury Instructions,
Criminal, No. 1.02.
In reaching this conclusion, we do not mean to suggest that courts
have the discretion to tender instructions based on Illinois Pattern Jury
Instructions, Criminal, No. 1.02, rather than Illinois Pattern Jury
Instructions, Criminal, No. 11.66, in cases where hearsay statements
have been admitted pursuant to section 115–10 of the Code of Criminal
Procedure of 1963 (725 ILCS 5/115–10 (West 2006)) and defendant
requests that the jury be instructed in the manner required by that
statute. We hold simply that, under the facts of this case, the court’s
failure to instruct the jury as set forth in section 115–10 of the Code of
Criminal Procedure did not constitute plain error.
CONCLUSION
Defendant was properly convicted of predatory criminal sexual
assault of J.W. and one count of predatory criminal sexual assault of
M.G. No basis exists for disturbing the sentence of natural life
imprisonment he received for those convictions pursuant to section
12–14.1(b)(1.2) of the Criminal Code of 1961 (720 ILCS
5/12–14.1(b)(1.2) (West 2006)). Defendant’s convictions on the
remaining charges against him cannot be sustained under the
corroboration rule, which remains the law of Illinois. Those convictions
and the corresponding sentences imposed for those convictions are
therefore reversed.
For the foregoing reasons, the judgment of the circuit court of
De Kalb County is affirmed in part and reversed in part. The judgment
of the appellate court is reversed in part and affirmed in part.
Appellate court affirmed in part and reversed in part;
circuit court affirmed in part and reversed in part.
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