People v. Kirkpatrick

1

2024 IL App (5th) 200055-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANDREW S. KIRKPATRICK, Defendant-Appellant

No. 5-20-0055

Court of Appeals of Illinois, Fifth District

December 5, 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 Perry County. No. 16-CF-73 Honorable James W. Campanella, Judge, presiding.

JUSTICE VAUGHAN delivered the judgment of the court. Justice Barberis concurred in the judgment. Justice Cates specially concurred.

ORDER

VAUGHAN JUSTICE

¶ 1 Held: The State proved defendant guilty of predatory criminal sexual assault of a child and we decline to address the second issue on appeal for failure to comply with Ill. S.Ct. R. 341(h)(7) (eff. Oct. 1, 2020).

¶ 2 Defendant, Andrew S. Kirkpatrick, appeals from his seven predatory criminal sexual assault of a child (720 ILCS 5/11-1.40(a)(1) (West 2016)) convictions. On appeal, he challenges the conviction on count III, asserting the State failed to prove the charge beyond a reasonable doubt. Defendant also filed a supplemental brief, asserting the jury instructions and closing arguments constituted plain error. For the reasons below, we affirm.

¶ 3 I. BACKGROUND

¶ 4 After defendant's wife, Heather Kirkpatrick, discovered her daughter, A.G., and defendant in their backyard pool with both of their swimsuit bottoms off on June 5, 2016, defendant was charged with two counts of predatory criminal sexual assault of a child (id.). Count I alleged defendant placed his penis in or onto the vagina of Jane Doe, who was under the age of 13. Count II alleged defendant placed his hand or finger in or onto the vagina of Jane Doe, who was under the age of 13.

¶ 5 On September 26, 2018, the State filed an amended information charging seven counts of predatory criminal sexual assault of a child (id.). The first three counts concerned defendant's actions with A.G.-a child under the age of 13-on June 5, 2016, and alleged that defendant knowingly touched A.G.'s vagina with his penis (count I), touched her vagina with his finger (count II), and touched her anus with his finger (count III), for the purpose of sexual gratification. The next two counts alleged that between January 1, 2016, and June 4, 2016, defendant knowingly touched A.G.'s vagina with his finger (count IV) and placed his penis in A.G.'s hand (count V), for the purpose of sexual gratification. Count VI alleged between January 1, 2016, and June 4, 2016, defendant touched A.G.'s vagina with a sex toy. Count VII alleged, between January 1, 2016, and June 4, 2016, defendant penetrated A.G.'s mouth with his penis.

¶ 6 Defendant's trial began on November 18, 2019. The State first called Heather to testify. Heather stated that A.G. was her daughter and defendant was her ex-husband. Defendant and she also had a son together. Defendant and she got married in 2014.

¶ 7 Heather testified that on June 5, 2016, she, A.G defendant, and their son lived in Du Quoin, Illinois. At that point, they had lived there for about a year and a half. On June 5, 2016, Heather had family over for a barbecue. People were grilling outside, and the children were swimming in a blow-up pool. The pool was 5 feet wide by 10 feet long and roughly a foot and a half deep. A.G. was seven years old at that time.

¶ 8 Around 4:30 p.m., Heather's family left the barbeque, and only defendant and her children remained. About 10 minutes after her family left, Heather went inside the house to the living room. Sometime after, defendant brought their son in and stated that the son was getting tired. Defendant handed their son to Heather and stated he was going to go back outside to play with A.G. because they were having fun. Around 5:30 p.m., her son ran through the house, went into the kitchen, climbed up on the table, and hit on the back window yelling for defendant. When Heather went to check on her son, she looked out the window to see what he was looking at and saw defendant in the pool.

¶ 9 Heather testified that she had a clear view of the pool from the window, explaining that because the house was at a higher elevation than the pool, she could see into the pool. She stated that defendant was sitting in the pool and A.G. was "kind of catty-cornered over the top of him, like her hands were between his legs. Kind of catty-cornered and she was on all fours, and she had no swimsuit bottoms on." Heather confirmed that A.G. had been wearing swimsuit bottoms before. Heather testified that A.G.'s bare butt was facing her, and defendant had his right hand between her legs and his right thumb was pushed against her left butt cheek. She could not see exactly what defendant was touching but knew "it was really close."

¶ 10 At that time, Heather knew she needed to get A.G. out of the pool, so she ran out of the back door and yelled for A.G. to come to her. A.G. ran to Heather, crying and saying that defendant took her swimsuit bottoms off and would not give them back to her. Heather stated that when A.G. exited the pool she turned and grabbed her swimsuit bottoms from the right side of defendant. Heather then screamed at defendant to stand up to see if he had an erection. After the fourth or fifth time of her demanding he stand, defendant refused to stand up and said that his swimsuit bottoms fell off. Heather stated that defendant had his swimsuit bottoms on all day, and they never fell down. Heather then grabbed her children to leave. Defendant ran up to her on the front porch as she was leaving and said, "it's not what it looks like." Heather then left to go to her brother's home.

¶ 11 On the way to her brother's home, Heather asked A.G. if defendant had done this before and A.G. said he had multiple times. Heather's mother was at her brother's home and advised Heather that they should take A.G. to the hospital. Heather and her mother took A.G. to Marshall Browning Hospital, and Heather's son stayed with her brother. Heather stated that A.G. was still wearing her wet swimsuit. Heather testified that she had not yet called the police because she was concerned about A.G. and wanted to first make sure she was okay. The hospital called the police to inform them of the incident. The hospital also informed Heather that A.G. would need to be transferred to St. Louis for a proper examination. A.G. was transferred to Cardinal Glennon Hospital in St. Louis, Missouri.

¶ 12 After a day or two, Heather took A.G. to be interviewed at the Child Advocacy Center (CAC). Heather confirmed that she was not in the interview, never saw the interview, and did not know what was said at the interview. Within a day or two of the pool incident, Heather moved out of the home she shared with defendant and did not have any further contact with him. On June 23, 2016, Heather took A.G. to a follow-up at Cardinal Glennon and Dr. Shaw examined A.G.

¶ 13 Heather testified that police asked her if she and defendant had sex toys, specifically a purple sex toy. Heather said she did have a purple sex toy that she and defendant used before, and it was located in the top dresser drawer in her room. Heather stated that, to her knowledge, A.G. would not have any knowledge about this sex toy.

¶ 14 Heather stated that A.G. never had trouble wiping herself after she used the restroom and defendant never told Heather that A.G. needed help wiping. Heather further stated that A.G. had some urinary tract infections but those were not due to improper wiping. Around the time of the pool incident, Heather worked 60-70 hours a week, Monday through Saturday, from 3 p.m. to 11 p.m. Defendant watched the children while Heather worked, and to her knowledge, no one else was at their home.

¶ 15 On cross-examination, Heather testified that her son would have been two years old at the time of the incident. Defense counsel asked how Heather knew A.G. did not go into her room and look in the drawer that contained the sex toys. Heather replied, "Because she wasn't allowed in our room." Heather agreed that A.G. did not always do what she was supposed to do and could have gone into their room when Heather was at work.

¶ 16 Dr. Shaw testified that she evaluated A.G. on June 23, 2016, during a follow-up visit from an emergency room visit on June 6, 2016. At the evaluation, A.G. stated that she was worried she might be pregnant. A.G. stated that defendant touched her mouth, chest, "front private, and her back crack" with his private area. A.G. did not remember ever bleeding but remembered feeling sore and red and that it sometimes hurt to pee. Dr. Shaw examined the child's body with a focus on the child's genital and anal area. She conducted an external examination, using her hands to see into the genital and anal area using a magnifying lens.

¶ 17 Dr. Shaw stated that she did not observe any suggestion that there was a visible infection and no visual indication of any current or healed injury. Dr. Shaw testified that finding no visible injury was consistent with A.G.'s description of what happened. She explained that national research studies showed that most children who had someone place their finger or penis into their mouth, hands, chest, front private, or back private did not have an infection, were not pregnant, and did not have any visible signs of injury.

¶ 18 On cross-examination, Dr. Shaw stated that external signs of penetration in a child's vagina depended on the child's age and weight, the sexual maturity of the child and if there was true penetration. She explained "there is a difference between penetration of the vaginal area, the vaginal vestibule and into the vagina where a tampon goes or where a baby is delivered from." Dr. Shaw...