People v. Johnson

2023 IL App (4th) 220201

217 N.E.3d 1136

466 Ill.Dec. 860

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

v.Richard L. JOHNSON, Defendant-Appellant.

NO. 4-22-0201

Appellate Court of Illinois, Fourth District.

Filed February 21, 2023

James E. Chadd, Catherine K. Hart, and Roxanna A. Mason, of State Appellate Defender's Office (Tamara Gilbert, law student), of Springfield, for appellant.

Charles A. Boonstra, State's Attorney, of Dixon (Patrick Delfino, David J. Robinson, and Rosario David Escalera Jr., of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

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

¶ 1 Following a bench trial in the circuit court of Lee County, the trial court found defendant, Richard L. Johnson, guilty of three counts of predatory criminal sexual assault of a child ( 720 ILCS 5/11-1.40(a)(1) (West 2020)). The court sentenced defendant to 10 years in prison on each count, with the sentences to be served consecutively. Defendant appeals. We reverse defendant's conviction on count II. Pursuant to Illinois Supreme Court Rule 615(b)(3) (eff. Jan. 1, 1967), we reduce the conviction on count II to aggravated criminal sexual abuse ( 720 ILCS 5/11-1.60(b) (West 2020)), and we remand the matter to the trial court for sentencing on that offense. We affirm the judgment in all other respects.

¶ 2 I. BACKGROUND

¶ 3 In February 2021, the State charged defendant with three counts of predatory criminal sexual assault of a child, with the conduct occurring "[o]n or about March 23, 2020 and March 27, 2020." The State alleged defendant assaulted his eight-year-old granddaughter, J.O., by inserting his finger into her vagina (count I), touching her vagina with his hand (count II), and putting her hand on his penis (count III).

¶ 4 Melissa Folkers interviewed J.O. at Shining Star Children's Advocacy Center (Shining Star) on August 14, 2020, and again on February 10, 2021. Both interviews were video-recorded. In the first interview, J.O. did not divulge any sexual assault, and she told Folkers that nothing happened with defendant that she did not like. However, in the second interview, J.O. described defendant sexually assaulting her multiple times in bathrooms and on a couch. J.O. seemed to say that the assaults all happened during one stay at defendant's home when she was about eight years old. J.O. mentioned defendant (1) showing her his "private part," (2) making her touch his "private part," (3) touching her "private part" (both over her clothes and "all the way into" her private part, and (4) kissing her like "grown up" or "married" people do. J.O. said that defendant told her to keep his conduct a secret.

¶ 5 Prior to trial, pursuant to section 115-10 of the Code of Criminal Procedure of 1963 (Code) ( 725 ILCS 5/115-10 (West 2020) ), the State filed a notice of intent to introduce J.O.’s February 10, 2021, interview. Section 115-10 provides a hearsay exception for out-of-court statements made by young victims of sexual assault. Relevant conditions include that (1) "[t]he court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability" ( 725 ILCS 5/115-10(b)(1) (West 2020)) and (2) the child testifies at trial ( 725 ILCS 5/115-10(b)(2)(A) (West 2020)). When the State's motion came up for hearing, the parties stipulated that both of J.O.’s recorded interviews could be admitted at trial, "pursuant to the child being available to testify." The trial court accepted that stipulation.

¶ 6 The matter proceeded to a bench trial in November 2021. J.O. was the first witness for the State. She testified on direct examination as follows. She was born in January 2012. She currently lived in Kentucky, but she did not know how long she had lived there. She was testifying in the presence of her dog to calm her. She was "[a] little bit" anxious about testifying. She remembered speaking to somebody named "Missy" at Shining Star twice. The first time J.O. spoke with Missy, J.O. talked about her family and "[t]heir names." Asked by the prosecutor what else she spoke about during that first interview, J.O. responded: "Nothing else. I don't know." J.O. testified that she then spoke with a counselor in Kentucky about what happened to her. After speaking with that counselor, J.O. spoke with Missy a second time. During that second conversation, J.O. told Missy that her "Papa" had done something to her. J.O. identified defendant in court as her Papa. J.O. testified that, in her second conversation with Missy, she told Missy that defendant did "a couple different things" to her on "[d]ifferent days." Asked by the prosecutor whether there was a reason she was "keeping it a secret," J.O. responded "[y]es," though she forgot the reason. J.O. testified that she told the truth when she spoke with Missy the second time.

¶ 7 On cross-examination, J.O. testified that she did not remember Missy asking her during the first interview whether anybody had ever touched her in a way she did not like. Questioned whether she remembered being asked during the first interview if anything she did not like ever happened with her "Grandma Rose," J.O. testified: "Yes. I just don't know." J.O. testified she remembered Missy asking her whether anything she did not like ever happened with defendant. However, J.O. did not remember what answer she provided when Missy asked that question.

¶ 8 After J.O. testified, the prosecutor asked to play the "videos," noting that the parties agreed that "they" should be presented pursuant to section 115-10 of the Code. Defense counsel told the trial court: "Yes, that is correct." The court watched J.O.’s August 14, 2020, interview and then took a lunch recess. After the recess, the State requested to play the recording of the February 10, 2021, interview. At that point, defense counsel asked the court to "reconsider its ruling pursuant to [section] 115-10." Defense counsel argued that defendant did not have a meaningful opportunity to cross-examine J.O., given that she did not testify to the details of the alleged sexual assaults. The court took a recess to review case law. Relying on People v. Garcia-Cordova , 2011 IL App (2d) 070550-B, 357 Ill.Dec. 402, 963 N.E.2d 355, the court denied defendant's "motion for reconsideration." The State then played the recording of the February 10, 2021, interview for the court.

¶ 9 Jessica Cash, who was the executive director of Shining Star, testified for the State. Without objection from the defense, the trial court accepted Cash as an expert in children's advocacy. Cash testified that it was not common for children to be interviewed twice, though she said it "does happen." Cash did not interview J.O. However, from reviewing the videos, Cash believed that J.O.’s disclosure in the second interview was age-appropriate and not coached. Cash attributed to anxiety J.O.’s failure to disclose the assaults during the first interview. On cross-examination, defense counsel questioned Cash about J.O.’s demeanor and speech patterns in the first interview versus the second. Cash acknowledged on cross-examination that she did not know anything about the counseling J.O. attended between her first and second interviews.

¶ 10 Rosemarie Hersey, J.O.’s great-grandmother, also testified for the State. According to Hersey, in August 2020, J.O. made certain statements to her. The trial court allowed evidence of those statements to prove the effect on the listener, not for the truth of the matters asserted. Hersey testified that J.O. did not want to bathe alone. J.O. told Hersey that (1) J.O. and defendant had a secret, (2) defendant would show her his private parts, (3) defendant would put his tongue in her mouth, and (4) J.O. wanted defendant to stop. Hersey relayed this information to J.O.’s mother later that evening.

¶ 11 The State's last witness was Shane Miller, a detective sergeant for the Lee County Sheriff's Office. Miller testified that J.O.’s mother informed him that J.O. made certain accusations. During the course of the investigation, Miller learned defendant's address.

¶ 12 Defendant's wife, Deborah Johnson, testified for the defense. She testified that J.O. and J.O.’s brother stayed overnight at Johnson's and defendant's home from March 23 to March 27, 2020. Johnson testified that J.O. had one bath during that visit, on March 23. According to Johnson, while she bathed the children, defendant was in the living room watching television. Johnson testified that she did not leave the children in defendant's supervision during the March 2020 visit. On cross-examination, Johnson denied telling her son, Nicholas O., that she wished she had checked on J.O. herself rather than having defendant do so.

¶ 13 Defendant testified on his own behalf. His testimony was similar to Johnson's. Defendant remembered watching television while Johnson bathed the children. He denied sexually assaulting J.O.

¶ 14 Nicholas O. testified for the State in rebuttal. According to Nicholas, on August 9 or 10, 2020, he had a phone conversation with his mother, Johnson, about the events of March 2020. According to Nicholas, Johnson told him she was in the kitchen making dinner and she asked defendant to check on the kids in the bathtub. In surrebuttal, Johnson denied making that statement to Nicholas.

¶ 15 The trial court found defendant guilty of all three charges. In addressing J.O.’s failure to disclose defendant's conduct during her initial interview at Shining Star, the court made the following comments that defendant argues on appeal were improper:

"Having raised five children myself, I understand how children talk; how they tell stories and at what different ages their communication skills develop. The mere fact that [J.O.] didn't make a disclosure in the first video does not mean that something didn't happen. It means that [J.O.] herself was not comfortable telling the story at

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