People v. Hayden

2018 IL App (4th) 160035

127 N.E.3d 823

431 Ill.Dec. 290

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

v.Larry D. HAYDEN, Defendant-Appellant.

NO. 4-16-0035

Appellate Court of Illinois, Fourth District.

Filed December 3, 2018

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

¶ 1 A jury found defendant, Larry D. Hayden, guilty of two counts of predatory criminal sexual assault of a child ( 720 ILCS 5/11-1.40(a)(1) (West 2014); 720 ILCS 5/11-1.40(a)(1) (West 2012) ), and the trial court sentenced him to natural-life imprisonment. Defendant appeals, arguing the court committed reversible error by (1) denying his motion for a severance of charges and (2) ruling that certain hearsay statements would be admissible under section 115-10 of the Code of Criminal Procedure of 1963 (Code) ( 725 ILCS 5/115-10 (West 2014) ). We agree with the first argument and, consequently, do not reach the second argument. Because of the misjoinder of charges, we reverse the judgment and remand this case for further proceedings.

¶ 2 I. BACKGROUND

¶ 3 A. The Information

¶ 4 The information consisted of five counts.

¶ 5 In counts I, III, and V, the alleged victim was A.C., and each of those counts accused defendant of offending in April 2015. Counts I and V charged him with predatory criminal sexual assault of a child ( 720 ILCS 5/11-1.40(a)(1) (West 2014) ), and count III charged him with aggravated criminal sexual abuse (id. § 11-1.60(c)(1)(i) ).

¶ 6 In counts II and IV, the alleged victim was T.M., and each of those counts accused defendant of offending sometime during the period of January to June 2012. Count II charged him with predatory criminal sexual assault of a child ( 720 ILCS 5/11-1.40(a)(1) (West 2012) ), and count IV charged him with aggravated criminal sexual abuse (id. § 11-1.60(b) ).

¶ 7 B. The State's Motion Pursuant to Section 115-10

¶ 8 On August 12, 2015, pursuant to section 115-10 of the Code, the State moved for a ruling that certain hearsay statements would be admissible in the jury trial, including statements that A.C. and T.M. had made to friends and relatives, as well as digital video disks (DVDs) of A.C. and T.M. being interviewed at the Champaign County Children's Advocacy Center.

¶ 9 On September 3, 2015, after hearing testimony and arguments, the trial court granted the State's section 115-10 motion.

¶ 10 C. Defendant's Motion to Sever Counts of the Information

¶ 11 On November 16, 2015, immediately before voir dire , defendant moved to sever counts I, III, and V from counts II and IV and to have separate trials on those two groups of charges. "The [i]nformation allege[d] two separate and distinct incidents against two separate and distinct individuals," defendant argued, and "[i]f the trial were to proceed with all counts, the mere fact that [he was] accused of two separate sexual acts with two separate and distinct individuals [would] lead the jury to improperly and unconstitutionally use this information against [him]."

¶ 12 Without explanation, the trial court denied the motion for a severance.

¶ 13 D. The Jury Trial

¶ 14 The jury trial occurred on November 17 and 18, 2015. The witnesses testified substantially as follows.

¶ 15 1. The Testimony of A.C.

¶ 16 A.C. testified that she was 12 years old and lived in Rantoul, Illinois, two doors down from D.O., who was a close friend of hers. A.C. knew defendant because he was a friend of D.O.'s father, Leroy P. Before spring break in 2015, A.C. had nothing against defendant except that she did not like his "staring at [her] and stuff."

¶ 17 Spring break was from April 6 to 10, 2015, and sometime during that four-day period, A.C. and her little brother, Joshua, were at D.O.'s house for a sleepover. It was late in the evening, and A.C. and D.O. were in the living room, watching television with Leroy and defendant. D.O. was sitting on a recliner, and A.C. and defendant were sitting on a couch. Leroy was in and out of the living room, doing something or other. D.O. fell asleep on the recliner, and A.C. lay down on her stomach, on the couch, with her feet toward defendant and her head on a pillow. While Leroy was out of the living room and D.O. was asleep on the recliner, defendant began touching A.C. beneath her clothes. He put his hand under her pants, moved up toward her vagina (which she called, in the trial, her "middle part") and digitally penetrated her. When Leroy could be heard "walking around," defendant withdrew and desisted. A.C. got off the couch, went to the recliner, awakened D.O., and asked her to come upstairs so she could tell her something.

¶ 18 As A.C. and D.O. climbed the stairs, defendant approached A.C. and "started touching [her] on [her] breasts." A.C. "told him to stop and leave [her] alone." He asked her where she was going. She replied that she was going upstairs.

¶ 19 A.C. and D.O. went into D.O.'s bedroom, upstairs, and D.O. was "fixing to l[ie] back down and go back to sleep," but A.C. began weeping and told her that defendant "had touched [her]." A.C. suggested that they tell Leroy, but then A.C. expressed reluctance to tell Leroy, saying she was scared. They decided, instead, to tell D.O.'s mother, Irene O.

¶ 20 They went into Irene's bedroom, which likewise was upstairs, and they awakened her. She got out of bed and sat down in a chair. A "sad look" came over her face when she heard what had happened. A.C. began weeping again and told D.O. they really ought to tell Leroy, too.

¶ 21 A.C. and D.O. went downstairs and asked Leroy to come upstairs with them so they could tell him something. Defendant followed Leroy upstairs, although no one asked him to come along. A.C., D.O., and Leroy went into D.O.'s bedroom, and D.O. closed the door on defendant. When Leroy—who had been drinking vodka—heard what had happened, he was "furious" and began "stuttering."

¶ 22 At some point, while they were upstairs (it is unclear specifically where upstairs), defendant put his hands on A.C.'s knees and apologized. A.C. testified, "He was like[,] ‘I'm sorry if I touched you in any kind of way.’ " A.C. began weeping again and told him to get off her and leave her alone.

¶ 23 Then everyone went downstairs except Irene, who remained in her bedroom. Leroy was yelling and cursing at A.C., "saying how * * * a grown man shouldn't be touching a little girl." A.C. said she wanted to go home, but Leroy forbade her to leave. He yelled at defendant, too, telling him "he shouldn't be touching a little girl, he ha[d] a wife, and all of that stuff." He told defendant to go home and that their friendship was over—although, A.C. testified, they afterward "remain[ed] good friends" and "still hung out."

¶ 24 In the morning, while D.O. was still asleep, A.C. went downstairs to make herself some breakfast. Leroy "was sitting in that chair," and he had a sad look on his face. A.C. sat down on the couch. Leroy warned her that "if [she] told, there would be major consequences, and like bad things would happen"—"charges and stuff." He never asked A.C. not to tell. He just said there "would be major consequences" and that "[it was her] choice whether to tell or not."

¶ 25 A.C. lived with her grandmother, Cassandra C., who had adopted both her and Joshua. A.C. testified she was scared to tell Cassandra what defendant had done to her because she did not know how Cassandra or her other family members would react. Also, she was scared of defendant. He had never made any threat. Even so, she had "watch[ed] a lot of movies," and she was worried he would threaten or harm Cassandra "or do something bad." So, she did not tell Cassandra upon returning home the morning after the sleepover.

¶ 26 Instead, the persons in whom A.C. confided initially were (besides D.O. and her household) three of her cousins and another close friend of hers, T.M., who was defendant's stepdaughter. One of the cousins was DJ. She told her cousins that same month, April 2015.

¶ 27 A.C. told T.M. in early June 2015. At the time, she had T.M. and D.O. over at her house (which is to say, Cassandra's house), and the three of them were playing in the yard. A.C. testified:

"A. * * * So I just happenly [sic ] brung it up and told [T.M.], because [T.M.] told me that it happened to her; so I just brung it up, and told her what happened.

Q. [T.M.] told you what?

A. [T.M.] told me that it happened to her, [to Kh.], and [to] her little cousin.

Q. And you told her that it happened to you?

A. Yes.

Q. Did you guys give a lot of details back and forth, or [did] you just say, [‘H]ey, this has happened to both of us?[’]

A. We gave details.

Q. [S]o[,] now you know about [T.M.] Was [D.O.] there?

A. Yes.

Q. Did you guys talk with [D.O.] also?

A. Yes.

Q. You told her, too?

A. Yep.

Q. But still you don't tell any adults yet?

A. Nope."

¶ 28 It was not until June 14, 2015, that A.C. revealed to Cassandra what had happened a couple of months earlier, during spring break at the sleepover at D.O.'s house. The following circumstances caused the subject to come up.

¶ 29 A.C., D.O., and some other kids were walking in the street, heading to A.C.'s house. Defendant was standing in the doorway of Leroy's house, and he told D.O. to get out of the street before she got hit by a car. D.O. told defendant to stop talking to her. Defendant came over to Cassandra's house, put his finger in D.O.'s face, and warned her never to disrespect him again. Cassandra heard the commotion and told defendant to "take that over to [D.O.'s] house" and to "get out of here with that stuff." D.O. returned to her house with defendant, who was threatening "to give her a whupping and all that stuff." Eventually, D.O. returned to Cassandra's house, and A.C.'s cousin DJ remarked that "[A.C. had] said that [defendant] was a pedophile." Cassandra asked A.C. why she had called defendant a pedophile. A.C. "told her that [defendant] had touched [her]," and she gave Cassandra "some details about that." Cassandra telephoned some relatives and the police. When the police officers arrived, none of...