People v. E. F.-M. (In re E. F.-M.)

2018 IL App (4th) 170608-U

In re E. F.-M., a Minor,

(The People of the State of Illinois, Petitioner-Appellee, v. E. F.-M., Respondent-Appellant).

NO. 4-17-0608

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

January 9, 2018

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 Champaign County

No. 16JD224

Honorable Heidi N. Ladd, Judge Presiding.

JUSTICE TURNER delivered the judgment of the court.

Presiding Justice Harris and Justice DeArmond concurred in the judgment.

ORDER

¶ 1 Held: The juvenile court neither erred in adjudicating respondent delinquent nor in sentencing him to the Department of Juvenile Justice. However, the court erred in imposing certain fines against respondent.

¶ 2 On May 9, 2017, the juvenile court found respondent, E. F.-M. (born November 21, 1998), guilty of criminal sexual assault. On July 12, 2017, the court committed defendant to the Department of Juvenile Justice (DOJJ). On July 18, 2017, respondent filed a motion to reconsider his sentence. On August 14, 2017, the court denied the motion to reconsider sentence. Respondent appeals, making the following arguments: (1) his due process rights were violated when the juvenile court judge relied on generalized information about sexual assault not presented during the trial; (2) the court erred in committing respondent to DOJJ because the court did not properly consider his lack of a criminal record; and (3) the court improperly assessed seven fines against respondent. We affirm respondent's adjudication of delinquency and sentence to DOJJ but remand the matter to the trial court directing it to vacate the improperly imposed fines.

¶ 3 I. BACKGROUND

¶ 4 On November 14, 2016, the State filed a petition for adjudication of delinquency and wardship, charging respondent with criminal sexual assault (720 ILCS 5/11-1.20(a)(1) (West 2016)) based on an act of sexual penetration on E.D. by the use of force or threat of force. Both respondent and E.D. were cadets at the Lincoln Challenge Academy (Academy) in Rantoul, Illinois. The charged incident took place in a bathroom at the Academy.

¶ 5 Respondent is not challenging the sufficiency of the evidence to convict. Instead, he argues the juvenile court relied on information not presented as evidence to find him guilty of criminal sexual assault. As a result, we will not delve into the specifics of the evidence in this case except as necessary.

¶ 6 The trial court heard testimony from E.D., respondent, and two other cadets, A.M. and L.B., who witnessed at least part of the sexual act in question. Respondent, A.M. and L.B. were roommates at the Academy. A.M. testified as a State witness. L.B. testified for the defense.

¶ 7 E.D. testified she did not agree to or consent to having sexual intercourse with respondent and told him no. Respondent testified the sex was consensual. According to respondent, E.D. guided his penis into her vagina with her hand. All the witnesses agreed respondent did not hit, punch, or choke E.D. A.M. and L.B. both testified they did not hear any yelling or screaming and did not witness the entire sexual encounter because respondent and E.D. were in the shower room. A.M. and L.B. were not in the shower room during the entire encounter. At some point, A.M. and L.B. looked into the shower room and saw respondenthaving sexual intercourse with E.D. from behind in the corner. A.M. said E.D. saw L.B. and A.M. watching what was happening and looked scared. She told respondent to stop, but he did not. A.M. twice heard E.D. tell respondent to stop.

¶ 8 The witnesses agreed respondent withdrew at some point and walked in front of E.D. Respondent said he asked E.D. for oral sex. E.D. testified respondent told her to give him oral sex and told L.B. to have sexual intercourse with her from behind. When she refused to perform oral sex, respondent picked her up over his shoulder and put her on the shower floor.

¶ 9 After respondent placed E.D. on the floor, the sexual encounter ended. E.D. and A.M. both testified the encounter ended because A.M. stepped in and blocked respondent from E.D. E.D. was then able to pull her pants up and get out of the bathroom. L.B. and respondent testified the encounter ended because E.D. said no after she was on the floor.

¶ 10 Captain Sarita Taylor, who worked with E.D.'s unit at the Academy, testified E.D. came to her office about an hour after the incident occurred. Taylor testified E.D. reported she had been raped.

¶ 11 The incident was reported to the Rantoul police department, which investigated the allegation. During the investigation, respondent told the police he and E.D. had consensual sex and admitted being rough with her. Respondent said the encounter ended after E.D. refused to perform oral sex on him. L.B. told the police he felt "iffy" about the situation. Officer Rene Wissel testified L.B. originally denied any knowledge of the event but later told the police he and A.M. told respondent to stop. Officer Wissel testified E.D. seemed credible and A.M. seemed sincere.

¶ 12 C.A., another female student at the Academy, testified E.D. told her about the size of respondent's penis after the alleged assault and did not seem upset. E.D. denied talking aboutthe size of respondent's penis. Captain Taylor testified C.A. and E.D. had personality conflicts. Taylor also testified C.A. was not someone she would trust. However, Marvin Hunt, another teacher at the Academy, testified E.D. might be untruthful if she encountered a difficult situation.

¶ 13 In essence, the defense theory in this case was E.D., who had another boyfriend at the Academy, had consensual sex with respondent but said it was rape after A.M. and L.B. saw the sexual encounter because she did not want her boyfriend to know she was having consensual sex with respondent.

¶ 14 On May 9, 2017, at a hearing to announce the juvenile court's decision in this case, the court noted it had carefully considered the evidence in the case, which consisted of witness testimony. The judge noted she considered the individual witness's manner and demeanor while testifying, his or her credibility, and any bias or motive he or she might possess.

¶ 15 The trial judge noted E.D., the alleged victim in this case, had a "straightforward" and at times "flat" demeanor. The court found her credible, stating:

"She made no attempt to embellish or manipulate what she was describing or enhance the events occurring or her version of the events to present them more favorably to her. She did not try to portray the Respondent minor as violent or try to bolster her report. It struck the Court in evaluating her demeanor and testimony that she was describing what occurred in a very forthright and credible manner.

* * *

I would note that during that course of the testimony [where she described respondent turning her toward the wall, pulling down her pants, and inserting his penis into her vagina] her demeanor became much quieter. She dropped hervoice, and it was apparent that the manner she was describing the events in [sic] changed so that it was notable that her demeanor had in fact varied at that point as she was describing those events.

She was asked if she could move away. She said she felt like she could not but probably could have, and I found that struck the Court as very straightforward and honest again and not trying to enhance or embellish what occurred. It's not uncommon for victims of sexual assault to state a helpless feeling and in retrospect second guess what they could have done in hindsight to stop the events, and that's how that came across to the Court.

***

On cross examination, she did acknowledge she was not pinned, she did not scream, she was not struck in any way by the Respondent minor. She described that she felt trapped. She indicated she was shocked. She felt she could not move. She indicated repeatedly that she said no, she never consented and she never wavered in cross examination or on direct that she had said no. She said she was scared and there was not much I could do so that was her description of events." (Emphasis added.)

¶ 16 The juvenile court then addressed respondent's testimony. The court noted it had evaluated both respondent's credibility and the substance of his testimony. Respondent admitted his testimony was different than what he told the investigating police officer on the day of the alleged assault. While respondent blamed this on being nervous, the court did not believe him, stating respondent's statement to the police was intended to minimize his involvement. Respondent told the investigating police officer he left the bathroom after E.D. declined toperform oral sex on him. However, respondent admitted at trial he put E.D. on the floor after she refused to perform oral sex. Further, while respondent told the investigating officer he was rough with E.D., he attempted to downplay this statement during his testimony.

¶ 17 With regard to L.B.'s testimony, the juvenile court found he was trying to help respondent. His testimony also was not entirely consistent with respondent's version of events, especially concerning what L.B. did with E.D. both before and after they all went into the bathroom. In addition, the court noted L.B. initially denied any knowledge of the alleged sexual assault when he spoke with the investigating police officer. According to the court:

"[L.B.] claimed he was nervous. I didn't see any signs of nervousness in court. I saw someone who was again on a mission to help his friend. He told Officer Wissel at the time that he and [A.M.] told the respondent minor to stop and he denied saying that. He told Wissel, Officer Wissel, at the time that [E.D.] had asked the Respondent minor to stop when he put her on the floor.

He also admitted to Officer Wissel that he felt iffy about the incident in the bathroom. He admitted that in his testimony but said he wasn't

...