People v. Erxleben

1

2024 IL App (4th) 230551-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PARKER J. ERXLEBEN, Defendant-Appellant.

No. 4-23-0551

Court of Appeals of Illinois, Fourth District

August 12, 2024

This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Tazewell County No. 22CF528 Honorable Christopher R. Doscotch, Judge Presiding.

JUSTICE ZENOFF delivered the judgment of the court. Justices Harris and Lannerd concurred in the judgment.

ORDER

ZENOFF, JUSTICE

¶ 1 Held: The appellate court affirmed defendant's convictions of two counts of aggravated battery to a child.

¶ 2 Following a jury trial, defendant, Parker J. Erxleben, was found guilty of two counts of aggravated battery to a child (720 ILCS 5/12-3.05(b)(1) (West 2022)). The trial court sentenced him to concurrent terms of 13 years in prison. On appeal, defendant contends (1) his trial counsel provided ineffective assistance by failing to object when the State asked the court to find one of its witnesses was an expert in the jury's presence and (2) his constitutional right to confront the witnesses against him was violated when the State presented testimony that a nontestifying witness told police officers he saw defendant handle the victim roughly. We affirm. ¶ 3 I. BACKGROUND ¶ 4 In January 2023, defendant was charged in a superseding indictment with three counts of aggravated battery to a child (id.). The State alleged defendant caused great bodily harm to R.E. by breaking her right arm (count I) breaking her left arm (count II), and breaking her ribs (count III).

¶ 5 A. Jury Trial Evidence

¶ 6 A jury trial began in March 2023.

¶ 7 1. Melissa Callaway

¶ 8 Melissa Callaway testified defendant is the father of her two daughters, A.E., born in November 2020, and R.E., born in May 2022. They moved from Virginia to Illinois in July 2022 when R.E. was two months old. During the events at issue, they lived with Melissa's grandmother, Audrey Howell, and her husband, Curtis Howell. Melissa's cousin Connor, Audrey's foster son Demarius Bent, and three dogs also lived in the house.

¶ 9 On Friday, September 9, 2022, A.E. and R.E. had child wellness checkups with their doctor. Melissa testified R.E. did not indicate any discomfort or cry when the doctor manipulated her arms and legs. R.E. arched her back, but Melissa thought it could have been caused by "colic *** or reflux." R.E. seemed "normal" while Melissa and Audrey shopped following the doctor's appointment. Later that night, Melissa bathed R.E. and put her to bed with no indication of any injury or discomfort. R.E. slept normally, only waking up once or twice for feedings during the night.

¶ 10 The next morning, defendant watched A.E. and R.E. at home while Audrey drove Melissa to work. On the way, Melissa decided not to go to work and instead went to another store to ask if they were hiring. Melissa and Audrey then met Curtis at a restaurant for breakfast. They were at the restaurant for 45 minutes to an hour. When they arrived home after breakfast, defendant and his parents were getting ready to leave to go grocery shopping. R.E. was in her car seat in the car and defendant was fastening A.E. into her seat. R.E. was crying, so they decided she should stay at home with Melissa while defendant, his parents, and A.E. went shopping.

¶ 11 Later that afternoon, R.E. started crying more than normal and Melissa put her in her swing. Melissa noticed R.E. was only using one arm to play with the mobile attached to the swing. When Melissa lifted the arm R.E. was not using, she made a "high pitch cry." Melissa sent a message to Audrey asking her to get a bandage wrap for R.E.'s arm. Melissa testified defendant later wrapped R.E.'s arm with the bandage.

¶ 12 Melissa testified she and defendant took R.E. to the hospital the following day, a Sunday, but they decided not to go into the emergency department because it was busy and made Melissa anxious. They were planning to take R.E. to her primary care doctor on Monday, but a "state worker" came to the house Sunday night, apparently after being alerted by a family member about R.E.'s injury. Melissa told the worker she had taken R.E. to the hospital and R.E. was diagnosed with a hairline fracture to her arm. Melissa later admitted to the worker that she lied about going to the hospital. Melissa testified she lied because she was afraid of the "family being broken apart" and of how defendant would react if she told the worker the truth.

¶ 13 Melissa testified the worker directed her to take R.E. to the hospital. After an X-ray of R.E.'s arm revealed a spiral fracture, R.E. was admitted to the hospital and her right arm was placed in a cast. When Melissa questioned defendant, he denied picking R.E. up by her arms and stated Demarius could have caused the injury. Melissa testified Demarius did not babysit or care for R.E. During a subsequent text message conversation, Melissa asked defendant what she should say to the police and defendant told her to blame Demarius.

¶ 14 Melissa later spoke to a police detective at the hospital and learned R.E. had also suffered additional breaks to her arm and broken ribs. As a possible explanation, Melissa told the detective she may have fallen asleep while breastfeeding and rolled over onto R.E. Melissa denied ever handling R.E. roughly. She asserted she was the primary caregiver for the children when she was not working. Defendant had asked Melissa not to leave him alone with R.E. when she was crying or fussy. Melissa testified defendant would become "overwhelmed or frustrated" when R.E. cried.

¶ 15 2. Audrey Howell

¶ 16 Audrey Howell testified she is Melissa's grandmother. She testified R.E. could "hardly move" without crying later in the day on Saturday. She observed defendant get angry or frustrated with the children on several occasions. She also observed defendant "roughly handle" R.E. by picking her up by the arm, "trying to say how flexible kids are."

¶ 17 3. Curtis Howell

¶ 18 Curtis Howell testified Melissa is his stepgranddaughter. He testified R.E. was screaming and crying after they returned from breakfast that Saturday morning. Curtis testified defendant became angry when he had responsibility for watching the two children, and he saw defendant pick R.E. up by her arms and almost drop her when he was angry.

¶ 19 4. Detective Andrew Thompson

¶ 20 Pekin Police Detective Andrew Thompson testified he specialized in child victim crimes. On September 12, 2022, he received a message from an investigator with the Illinois Department of Children and Family Services, indicating R.E had been admitted to a hospital with a broken arm. R.E. had been diagnosed with a spiral fracture to her right humerus. From his training, Thompson knew the infliction of a spiral fracture requires "a tremendous amount of force and torque," especially when involving a young child, because their bones are very flexible and difficult to break. Thompson also learned R.E. had "multiple rib fractures in various stages of healing both front and back" and fractures to her upper and lower left arm.

¶ 21 In his investigation, Thompson met with Melissa and observed R.E. at the hospital. He testified R.E. began screaming when Melissa picked her up. Melissa stated she did not observe any accident or physical abuse that could have caused R.E.'s injuries but offered "speculation," including that she may have rolled over on R.E. after falling asleep while breastfeeding. Melissa also stated she thought Demarius may have stepped on R.E. while she was asleep on her stomach on the front porch. Based on his experience and consultation with Dr. Channing Petrak, Thompson testified those possible events could not have caused the injuries observed in this case.

¶ 22 Thompson also interviewed the other household members. Demarius, who was a suspect at the time, denied harming R.E. and disclosed "rough handling" of R.E. by defendant. Defense counsel interposed a hearsay objection when the prosecutor asked if Demarius "describe[d] what he witnessed." The trial judge overruled the objection but instructed the jury that the testimony was being offered only to explain the course of Detective Thompson's investigation. The prosecutor then asked, "What did Demarius describe as far as rough handling by the defendant," and Detective Thompson testified Demarius "stated that he had witnessed [defendant] pick [R.E.] up by the ribs like under the arms roughly."

¶ 23 Thompson further testified Audrey and Curtis Howell both denied causing R.E. harm. Audrey stated she had witnessed defendant "hurt" R.E., and Curtis stated he had observed defendant "cause harm physically" to her. Melissa's cousin, Connor, denied having any physical contact with R.E. and stated he did not observe anyone else harm her. Detective Thompson also confirmed R.E. was seen by her primary care doctor on Friday, September 9, 2022, and the doctor did not observe any issue with R.E.'s arm after manipulating her extremities. The doctor diagnosed R.E. with acid reflux because she seemed uncomfortable and irritable when her torso was manipulated.

¶ 24 Detective Thompson testified defendant initially tried to blame Demarius for R.E.'s injuries. Defendant then stated he almost dropped R.E. on one occasion, but he caught her by the arm just before she hit the ground. Defendant also stated he had tripped over the dog and toys several times while holding R.E. He did not fall directly on R.E., but she was pinned against his side, potentially causing her broken arm. When Detective Thompson told defendant about R.E.'s broken ribs, defendant admitted he grabbed her around the chest...