Christopher M. v. Christopher M. (In re Re)

2016 IL App (4th) 150874-U

In re: CHRISTOPHER M., a Minor,THE PEOPLE OF THE STATE OF ILLINOIS, Petitioner-Appellee, v. CHRISTOPHER M., Respondent-Appellant.

NO. 4-15-0874

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

April 25, 2016

NOTICE

This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from Circuit Court of Woodford County

No. 14JD16

Honorable Charles M. Feeney III, Judge Presiding.

JUSTICE TURNER delivered the judgment of the court.

Justices Harris and Pope concurred in the judgment.

ORDER

¶ 1 Held: This court does not find (1) the State's evidence was insufficient for the circuit court to find respondent guilty beyond a reasonable doubt, (2) the court shifted the burden of proof or showed bias against respondent, (3) the criminal sexual abuse statute unconstitutional, and (4) a per se conflict of interest.

¶ 2 In March 2014, the State filed a petition for an adjudication of wardship, alleging respondent, Christopher M. (born in 2001), was a delinquent minor because he committed one count of aggravated criminal sexual assault (720 ILCS 5/11-1.30(a)(1) (West 2012)), one count of criminal sexual assault (720 ILCS 5/11-1.20(a)(1) (West 2012)), and two counts of criminal sexual abuse (720 ILCS 5/11-1.50(b) (West 2012)). After an adjudicatory hearing that ended in April 2015, the Woodford County circuit court found respondent guilty of the offenses charged in the petition and adjudicated him a delinquent minor. At the September 2015 dispositional hearing, the court made respondent a ward of the court and sentenced him to 60 days of home confinement and probation until his twenty-first birthday for aggravated criminal sexual assault and 24 months' probation for one count of criminal sexual abuse, to run concurrently with his probation on the other count. Respondent filed a motion for a judgment of acquittal or, in the alternative, a motion for a new hearing. After an October 2015 hearing, the court denied respondent's posttrial motion.

¶ 3 Respondent appeals, asserting (1) the State's evidence was insufficient to prove him guilty beyond a reasonable doubt, (2) he was denied a fair adjudicatory hearing because the trial judge impermissibly shifted the burden of proof and exhibited bias, (3) the criminal sexual abuse statute was unconstitutional because it violated respondent's rights to due process and equal protection of the laws, and (4) a per se conflict of interest existed because respondent's counsel was also his guardian ad litem. We affirm.

¶ 4 I. BACKGROUND

¶ 5 The March 2014 wardship petition alleged respondent committed the offenses of aggravated criminal sexual assault, criminal sexual assault, and criminal sexual abuse against N.M. and criminal sexual abuse against A.M. Both N.M. and A.M. are respondent's cousins, and the alleged incidents both occurred at their grandmother's house. The State later filed an amended petition to correct respondent's mother's name on the original petition. At respondent's first appearance, the following dialogue took place between the circuit court and respondent's counsel:

"THE COURT: Okay. Should I appoint a Guardian ad Litem as well, or are you going to act as both the Guardian ad Litem and the attorney, Ms. Wong?

MS. WONG: I think at this point I can act as both. If I do review discovery and discover that that [sic] may be difficult, I will advise the court.

THE COURT: Okay. And at that point I will appoint a [guardian ad litem].

MS. WONG: Yes."

At the first three pretrial hearings, the court referred to respondent's counsel only as his attorney. At the last four pretrial hearings, the court referred to respondent's counsel as both his attorney and his guardian ad litem.

¶ 6 In May 2014, the State filed a motion under section 115-10(a)(2) of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-10(a)(2) (West 2012)) to allow the hearsay statements of N.M. made to Tara Crady at the Woodford County Children's Advocacy Center. In October 2014, the circuit court held an evidentiary hearing on the State's section 115-10 motion, at which Crady testified. The State also presented a video of Crady's November 26, 2013, interview of N.M. and a transcript of the interview. Respondent's counsel argued the hearsay statements should not be admitted because they were unreliable. On November 19, 2014, the court entered an order granting the State's motion.

¶ 7 On January 30, 2015, the circuit court commenced the adjudicatory hearing in this case, at which respondent's counsel was identified as both his attorney and guardian ad litem. Before the hearing began, the State made a motion to exclude witnesses. However, the prosecutor noted the victims wanted to have their respective counselors present during their testimony. A concern was raised about N.M.'s counselor, Lucinda McArthur, becoming a witness. The court granted the motion to exclude witnesses but allowed the victims to have theircounselors present during their testimony. The State presented the testimony of N.M.; Maureen Hofmann, an advanced practice nurse with the Pediatric Resource Center; and A.M. It also presented the video and transcript of Crady's November 2013 interview of N.M. Respondent testified on his own behalf and presented the testimony of his brother, Cameron M. In rebuttal, the State called N.M.'s older brother, Daniel M. The evidence relevant to the issues on appeal is set forth below.

¶ 8 N.M. testified she was currently 11 years old and in the fifth grade. In the fall of her fourth-grade year (fall 2013), she attended a wiener roast at her grandmother's house with her parents and two brothers, Zachary M. and Daniel. Her aunts, uncles, and cousins also attended the wiener roast, including respondent. Respondent and N.M.'s brother, Daniel, were very good friends and favorite cousins. According to N.M., they did a lot of things together, but they were not together all of the time.

¶ 9 N.M. testified that, during the gathering, respondent threatened her with a knife and raped her. She stated the incident happened in the upstairs bedroom, which had a bed but was used mostly as a children's playroom. N.M., her brothers, and respondent had been playing Jenga in the upstairs bedroom, and her brothers left the room. After they were alone, respondent threatened her with a knife and stated he would cut off all of her hair if she did not have sex with him. N.M. testified she saw respondent's pocketknife but could not recall where or when she saw it. It could have been earlier, when they were outside. N.M. did explain how the blade opened and closed. However, she did not recall how long the blade was or what color the knife was. N.M. believed respondent would cut off all of her hair. Respondent told her to take off her pants. After she took off her pants and underwear, he told her to get on the bed. She did not remember the exact words he used. N.M. climbed onto the bed by herself.

¶ 10 Once she was on the bed, she lay down on her back. At that point, respondent had sex with her. N.M. explained sex was "[w]hen a boy puts his pee pee in a girl's front part." N.M. described what those parts were for and where they were located. N.M. testified respondent put his pee pee in her front part and started going up and down. She thought his hands were on her arms holding her down. N.M. said she felt his pee pee inside her front part, and it felt "very uncomfortable." When asked what she meant by the term "uncomfortable," she testified it meant "[l]ike weird." N.M. testified it went on for 5 or 10 minutes until she pushed off. She had her shirt on the whole time. N.M. did not say anything to anybody that night.

¶ 11 Around two months after the incident, N.M. told her mother. Her mother had questioned her after hearing about some things respondent's oldest brother, Terry M., had done. After she told her mother, they went to the police department. N.M. later met with Crady, who N.M. referred to as "the lady." Crady asked her questions about the incident. N.M. admitted she did not tell Crady about respondent holding her down on the bed. When asked whether she told Crady she informed her mother of the incident after her mother began "drilling" her, N.M. said she would call it asking, not "drilling." After the interview with Crady, N.M had a medical exam. Moreover, N.M. talked with McArthur, her counselor, and the prosecutor. She testified she did tell McArthur and the prosecutor about the pocketknife. Additionally, N.M. testified she knew what rape and "humping" meant before the incident.

¶ 12 Hoffman testified she examined N.M. on November 27, 2013. The anogenital exam revealed a deep notch in N.M.'s hymenal tissue at the "five o'clock" position. Such a finding is an indeterminate medical finding because it could be caused by past trauma, which would include penetration, or it could just be a normal variant. Hoffman also testified most examinations following a child's disclosure of abuse, even those involving penetration, are foundto be normal, without evidence of penetration.

¶ 13 On April 10, 2015, the circuit court reconvened the adjudicatory hearing, and the State played the video of Crady's November 2013 interview of N.M. During the interview, N.M. said she was meeting with her because respondent threatened that, if she did not have sex with him, he would cut off all of her hair. N.M. explained she was protective of her hair because she really liked doing hairstyles with it. She said she had sex with him one time at her grandmother's house during a wiener roast. N.M. explained she was playing in an upstairs bedroom with respondent and her brothers Daniel and Zachary. At some point, her brothers left the room and went downstairs. Respondent mentioned having sex, and she said no. Respondent then pulled out his pocketknife and said he would cut off all of her hair if she did not have sex. N.M. then said fine because she really liked her...