People v. Choate

2018 IL App (5th) 150087

113 N.E.3d 590

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.James E. CHOATE III, Defendant-Appellant.

NO. 5-15-0087

Appellate Court of Illinois, Fifth District.

Motion to publish granted October 2, 2018

Opinion Filed: October 2, 2018

Rule 23 order filed September 19, 2018

Attorneys for Appellant Michael J. Pelletier, State Appellate Defender, Ellen J. Curry, Deputy Defender, Eun Sun Nam, Assistant Appellate Defender, Office of the State Appellate Defender, Fifth Judicial District, 909 Water Tower Circle, Mt. Vernon, IL 62864

Attorneys for Appellee Hon. Michael M. Strange, State's Attorney, Lawrence County Courthouse, Lawrenceville, IL 62439; Patrick Delfino, Director, David J. Robinson, Acting Deputy Director, Sharon Shanahan, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, Fifth District Office, 730 E. Illinois Highway 15, Suite 2, Mt. Vernon, IL 62864

OPINION

JUSTICE CHAPMAN delivered the judgment of the court, with opinion.

¶ 1 The defendant, James Choate III, appeals his conviction for predatory criminal sexual assault of a child ( 720 ILCS 5/11-1.40(a)(1) (West 2012) ). The charge stemmed from abuse of the defendant's stepdaughter, Stephanie S. The incident at issue took place shortly after the family moved from Indiana to Illinois. Although the evidence at trial was focused on events that took place in Illinois on a specific date, there was also evidence that the defendant abused his stepdaughter in Indiana. The jury was instructed that the State did not have to prove that the abuse occurred on a specific date. The jury was not instructed that the State had to prove that the offense occurred in Illinois. The defendant contends that these instructions allowed the jury to find him guilty based on conduct that occurred in Indiana, contrary to the rule of criminal jurisdiction. See id. § 1-5(a)(1) (providing that a criminal defendant is subject to prosecution in Illinois only for conduct that occurred at least partially within the state). He argues that trial counsel was ineffective for failing to request an instruction on jurisdiction or to object to the instruction telling jurors that the State did not have to prove that the offense took place on the date specified in the charge. He also argues that the court did not comply with the requirements of Illinois Supreme Court Rule 431(b) (eff. July 1, 2012) and People v. Zehr , 103 Ill. 2d 472, 83 Ill.Dec. 128, 469 N.E.2d 1062 (1984), during voir dire . We affirm.

¶ 2 The defendant began a relationship with Stephanie's mother, Tonya, in 2012. At that time, Stephanie was seven years old. The defendant and Tonya married in December 2013. Throughout the relationship, the family moved numerous times, usually staying with relatives. They lived at various places in Indiana. Early in January 2014, they moved to Sumner, Illinois, where they shared a trailer with Tonya's cousin, Joseph A., his wife, Ashley, and their two children, one-year-old Joseph Jr. and three-month-old Jacob. In the early morning hours of January 30, Jacob was rushed to the hospital with life-threatening head injuries. The defendant stayed in the trailer with Stephanie while the other adults went to the hospital with the baby. That is when the events at issue took place.

¶ 3 The Department of Children and Family Services (DCFS) became involved due to the severity of Jacob's injuries, which were determined to have been inflicted by Joseph. DCFS investigator Jay Reeves took Joseph Jr. into protective custody. He learned from the adults in the family that eight-year-old Stephanie also lived in the trailer. Reeves drove to Stephanie's elementary school to take her into protective custody as well. In the car, Stephanie told Reeves that she had a secret. She told him that the defendant touched her "private part" and made her touch his "private part." She said that this happened more than once, and that the last time it happened was that morning. Reeves reported Stephanie's allegations to the police and scheduled a forensic interview for her the following day at the Healing Harbor Child Advocacy Center.

¶ 4 This matter came for trial in November 2014. Jay Reeves testified that he received a call at approximately 4 a.m. on January 30, 2014, to investigate a case involving a three-month-old baby with life-threatening injuries. At the police station, he spoke with the adults who lived in the trailer with the baby. He learned from them that there were two other children living in the trailer—the baby's 15-month-old brother, Joseph Jr., and his 8-year-old cousin, Stephanie. When Stephanie's mother, Tonya Choate, indicated that she intended to continue living in the trailer, Reeves told her that he needed to take both Joseph Jr. and Stephanie into protective custody. At this time, Joseph Jr. was at the police station with the adults, the baby had been airlifted to a hospital in Indiana, and Stephanie was at school.

¶ 5 Reeves left the police station with Joseph Jr. and drove to Stephanie's school. He testified that after he explained to Stephanie why he was picking her up, he drove the two children to a doctor's office for an initial health screening. Reeves explained that this was standard DCFS procedure. He testified that he then drove the two children to their foster home, a drive of about 100 miles.

¶ 6 Reeves testified that during the drive, Stephanie asked if she could call him "Dad." She told him that this was what she called all of the men who took care of her. Stephanie referred to three different men as her dads—her biological father, Levi, her previous stepfather, Doc, and the defendant, whom she also called Jimmy. Reeves explained to Stephanie that although it was his job to make sure that she and her little cousin were safe, he would not take care of them the same way a dad would take care of them. He told her that she could call him either Jay or Mr. Reeves. He then asked her which of her daddies she liked best. According to Reeves, Stephanie told him that she did not like Doc, and she described instances of physical abuse by him. She told Reeves that her favorite daddy was either Levi or Jimmy.

¶ 7 Reeves testified that after a pause in the conversation, Stephanie told him that she had a secret, but she did not know if she should tell him her secret because her mother would be angry. Reeves assured her that it was his job to listen to her and that she would not get into trouble for telling him her secret. Reeves testified that Stephanie then told him that Jimmy touched her "private part" and made her hand touch his "private part." She told Reeves that this happened more than once and that the last time was that morning. She explained that she woke up that morning because she felt the defendant rubbing her "private part." She told Reeves that the defendant also held onto her hand and made her rub his "private part." Reeves testified that Stephanie asked him, "Why doesn't he do that with his own hand?" Reeves told her he did not know why. He testified that Stephanie then told him that she was afraid she would get into trouble with her mother for telling him this. When he asked her why, Stephanie explained that her mother grounded her for two weeks just for talking to someone from DCFS in Indiana. She also told Reeves that she knew her mother loved Jimmy. She told him that she, too, liked Jimmy except when he was touching her "private."

¶ 8 Teresa Miller, the forensic interviewer who conducted an interview with Stephanie, also testified for the State. During her testimony, a video recording of the interview was played for the jury. As soon as Stephanie and Miller sat down at a table to begin the interview, Stephanie noticed the video camera and asked Miller, "Is that a camera?" Miller explained that the interview was being recorded so that Stephanie would not have to tell her story more than once. She assured Stephanie that her mother and father would never see the recording. She asked Stephanie, "Does that make you feel better?" Stephanie shook her head yes, but Miller apparently thought she continued to look apprehensive. She asked Stephanie, "You look a little worried. What are you thinking?" Stephanie replied, "I'm thinking that it's just that most people lie to me." Miller reassured Stephanie and promised never to lie to her.

¶ 9 Miller then began the interview by asking Stephanie to tell her about herself and her family. Stephanie told Miller that she was born in Washington, Indiana, and that her family moved around a lot. She told Miller that they recently moved into a trailer in Sumner, Illinois. The other people who lived in the trailer were Colby, Ashley, Jacob, Joseph, and Mom and Dad. Miller asked if any of the people she named were adults. Stephanie explained that Jacob and Joseph were babies and the other individuals were adults. (We note that although Stephanie does not clarify this, we presume that she refers to 15-month-old Joseph Jr. as "Joseph" and that "Colby" is a nickname for Joseph Sr.) When Miller asked if she knew what names other people called her mom and dad, Stephanie was reluctant to answer. She told Miller that her mom got angry at her if she used their first names. After Miller assured her that her mother would not see the video recording, Stephanie told her that the names of her parents were Tonya and Jimmy. She clarified that Jimmy was her stepfather; her "real dad" was Levi.

¶ 10 Miller then turned Stephanie's attention to her allegation of abuse. She began by asking Stephanie what she told Jay Reeves the previous day. Stephanie said that she told Reeves that she woke up to Jimmy putting her hand on his "private" while her mom was at the hospital with the baby. She told Miller that this happened in the trailer in Sumner. She told her that the defendant was sitting on her bed when he did this. She said that he moved her hand to make her rub his "private."

¶ 11 Stephanie told Miller that the same thing happened when she...