People v. Myles

2020 IL App (4th) 180652

184 N.E.3d 1037

452 Ill.Dec. 56

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

v.Dennis MYLES, Defendant-Appellant.

NO. 4-18-0652

Appellate Court of Illinois, Fourth District.

Filed December 21, 2020

James E. Chadd, Catherine K. Hart, and Amy J. Kemp, of State Appellate Defender's Office, of Springfield, for appellant.

Randy Yedinak, State's Attorney, of Pontiac (Patrick Delfino, David J. Robinson, and Allison Paige Brooks, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

JUSTICE HOLDER WHITE delivered the judgment of the court with opinion.

¶ 1 In May 2017, the State charged defendant, Dennis Myles, with three counts of aggravated criminal sexual abuse. In March 2018, the trial court found defendant guilty beyond a reasonable doubt of all three charges. In September 2018, the court sentenced defendant to 36 months' probation and a term of 180 days' imprisonment.

¶ 2 Defendant appeals, arguing (1) he received ineffective assistance of counsel where counsel stipulated to the admission of recordings of El. C.'s and Em. C.'s statements at the Children's Advocacy Center (CAC) and (2) his constitutional right to be present at all critical stages of his trial was violated when the trial court privately viewed the recordings. For the following reasons, we affirm the trial court's judgment.

¶ 3 I. BACKGROUND

¶ 4 In May 2017, the State charged defendant with three counts of aggravated criminal sexual abuse, a Class 2 felony ( 720 ILCS 5/11-1.60(c)(1)(i), (g) (West 2016)). The charges alleged defendant was 17 years of age or older and committed an act of sexual conduct with El. C. and Em. C., who were under 13 years of age, in that defendant knowingly rubbed his hand on or about El. C.'s vagina (count I), Em. C.'s vagina (count II), and Em. C.'s breasts (count III).

¶ 5 A. Motion in Limine

¶ 6 In October 2017, the State filed a motion in limine to admit hearsay evidence pursuant to section 115-10 of the Code of Criminal Procedure of 1963 (Code) ( 725 ILCS 5/115-10 (West 2016) ). Specifically, the State sought to present hearsay evidence in the form of out-of-court statements the minors made to their mother, J.C., and recorded statements the minors made to Jo Sipes at the Livingston County CAC. Prior to trial, the State informed the court it had a stipulation to present to the court regarding the recorded statements made at the CAC. Defense counsel indicated he agreed to the stipulation. The parties filed a written stipulation that Jo Sipes was "an experienced and certified forensic interviewer" and had "been trained in forming questions in a manner which does not elicit a certain response." Further, Sipes would testify the recordings of the forensic interviews she conducted accurately depicted the interviews and were complete recordings with no errors. Finally, the stipulation stated the recordings of the interviews "are admissible under 725 ILCS 5/115-10 if the requirements of 725 ILCS 5/115-10(2) are met."

¶ 7 B. Bench Trial

¶ 8 In November 2017, defendant's bench trial began. Over the course of three nonconsecutive days, the court heard the following evidence.

¶ 9 1. Em. C.

¶ 10 Em. C. testified she was nine years old and in the fourth grade. Em. C. identified defendant as her "Grandpa Dennis." According to Em. C., the previous year defendant would watch her and her younger sister El. C. "a couple times a month" while her mother worked. At the beginning of the 2016 school year, there was an incident with defendant that made Em. C. uncomfortable. Em. C. testified she was at home with defendant and El. C. Em. C. and defendant were sitting on the couch watching television, and Em. C. asked defendant to scratch her back. Em. C. testified defendant began scratching her back under her shirt and then moved his hands forward until he was scratching her "ninnies." Em. C. testified she referred to her breasts as "ninnies." Em. C. testified she also sometimes referred to her breasts as "mosquito bites" because of something funny El. C. once said. According to Em. C., defendant tickled her "ninnies" with both hands for about one minute.

¶ 11 Em. C. testified a second incident occurred approximately two weeks later, again while she and defendant sat on the couch watching television. Em. C. stated, "I was kind of laying with my feet up; and he was sitting next to me; and he sort of like moved his hand over my private." Em. C. testified she referred to her vagina as her "private." According to Em. C., defendant cupped his hand over her vagina and held his hand there for approximately five minutes. Em. C. testified she did not tell anyone about the incidents right away because she was scared. Em. C. usually referred to her vagina as her "froggy," but she used "private" while testifying because she was embarrassed.

¶ 12 Toward the end of third grade, Em. C.'s mother asked her if anybody had ever touched her in a way that made her uncomfortable. Em. C. told her mother about the two incidents with defendant. Em. C. talked about the incidents with her mother before Sipes interviewed her. All her mother told her was "to say the truth."

¶ 13 2. El. C.

¶ 14 El. C. testified she was five years old and attended kindergarten. According to El. C., when her mother worked, various people would babysit her and Em. C. El. C. stated there was an incident with defendant that made her uncomfortable. El. C. stated she, Em. C., and defendant sat on the couch watching the movie "Minions." According to El. C., defendant sat between the two girls. El. C. testified she was watching the movie and defendant began rubbing her "private spot," meaning her vagina. Defendant rubbed El. C.'s vagina over her clothes in a circle with one hand. El. C. testified defendant did not rub her stomach.

¶ 15 El. C. testified she did not remember what time of year the incident occurred, but she thought it happened between Christmas and Easter. El. C. testified defendant never put his arm around her shoulders while they watched television. El. C. never asked defendant to tuck her into bed at night. According to El. C., she told her mother about the incident the following morning.

¶ 16 3. CAC Interviews

¶ 17 Following Em. C.'s and El. C.'s testimony, the State moved to admit the video recorded interviews at CAC. The trial court asked if it should review the recordings before the next hearing, and the State indicated the court should do so. The court asked if there was any objection to that, and defense counsel responded, "No, Your Honor."

¶ 18 At the time of the recorded interview, El. C. was four years old. Following general questions about El. C.'s family and school, Sipes asked, "Do you know what you're here to talk about today?" El. C. responded affirmatively, and Sipes said, "Tell me what you're here to talk about." El. C. responded, "One day, my grandpa, he was rubbing my private." El. C. indicated her grandfather used his hand on top of her clothes. El. C. said the incident occurred on the couch at her house while her mother was at work. El. C. sat in between defendant and Em. C.

¶ 19 Sipes asked El. C. to describe "how Grandpa did that," and El. C. responded, "He just did it." El. C. marked a diagram when Sipes asked her to show "private part" on a picture. Although El. C. could not remember what day the incident occurred, she agreed she was four years old when the incident occurred. El. C. said her grandfather used one hand and his other hand was on the couch. El. C. stated she told him to please stop and he stopped when she got up. El. C. told her mother about the incident the following morning.

¶ 20 At the time of the recorded interview, Em. C. was nine years old. After some general questions about family and hobbies, Em. C. acknowledged she was not in trouble and mentioned talking with her mother. Sipes asked what Em. C.'s mother said about the interview. Em. C. responded that she needed to tell the truth and say everything that she told her mother. Em. C. denied being uncomfortable. Sipes asked Em. C. to tell her "what happened."

¶ 21 Em. C. said she asked her grandfather to scratch her back while they were sitting on the couch. Em. C. described how her grandfather moved forward to scratch her chest under her shirt. Sipes asked Em. C. what she called that part of her body, and Em. C. responded "mosquito bites" because they were little. Sipes asked if her grandfather was "scratching, or something different," and Em. C. responded the scratching turned into rubbing. Em. C. then asked if she could go outside and left. Sipes asked Em. C. what her grandfather's name was, and Em. C. said, "Grandpa Dennis."

¶ 22 Sipes asked if her grandfather had touched Em. C. anywhere else on her body, and Em. C. motioned toward her vaginal area. Em. C. stated defendant touched her over her clothes and that was the first incident. Em. C. estimated the incident occurred near the beginning of her third grade school year. Sipes asked if both incidents occurred last year, and Em. C. responded affirmatively. Sipes asked about the touching of her "mosquito bites" and Em. C. said that happened first because it was hotter outside. Em. C. later stated the touching of her "froggy" was the first incident. Em. C. said defendant touched her vagina with one hand in a scratching or rubbing motion. Em. C. explained she told her mother about the incidents because her mother asked if anyone touched her.

¶ 23 4. J.C.

¶ 24 J.C. testified defendant was her stepfather. According to J.C., she worked evenings and some days at a restaurant. A few times a month, defendant would watch her daughters while J.C. worked. In April 2017, J.C. and El. C. were sitting on the couch watching television. J.C. sat with her arm wrapped around El. C., and El. C. rubbed J.C.'s leg. J.C. testified El. C. was an affectionate child and J.C. wore soft pajama pants that El. C. liked. According to J.C., El. C. rubbed "closer and closer and touched [J.C.] in between [her] legs in [her] private...