People v. Bowen
Annotate this Case
NO. 4-96-0275
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Adams County
ANDREW P. BOWEN, ) No. 95CF200
Defendant-Appellant. )
) Honorable
) Mark A. Schuering,
) Judge Presiding.
_________________________________________________________________
JUSTICE GARMAN delivered the opinion of the court:
Defendant Andrew P. Bowen was charged in the circuit
court of Adams County with one count of aggravated criminal sexual
assault (720 ILCS 5/12-14(b)(1) (West 1994)). He was accused of
placing his penis in the mouth of then three-year-old D.M.P. while
he was baby-sitting her sometime during the month of May 1992.
Following a bench trial, defendant was convicted and subsequently
sentenced to nine years' imprisonment. He now appeals, arguing (1)
he was not proved guilty beyond a reasonable doubt, (2) the trial
court erred in admitting into evidence D.M.P.'s videotaped
interview with police despite the fact she testified at trial, and
(3) he is entitled to $5-per-day credit against his fine for time
spent in jail awaiting sentencing.
A hearing was held pursuant to section 115-10 of the Code
of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-10 (West
1994)), during which three persons to whom D.M.P. had made
statements testified. One of those, Robert Copley, a police
officer for the City of Quincy, conducted a videotaped interview
with D.M.P. The State sought to introduce the videotape recording
through Copley's testimony. Defense counsel objected on the basis
that a child could not possibly remember what happened to her when
she was three years old. The trial court granted the State's
request, finding that the minor was unavailable because of
limitations demonstrated during an in camera examination. The
court also found that the time, content, and circumstances of the
videotaped statement provided sufficient safeguards of reliability.
The court noted the minor's statements were corroborated by other
evidence, including volunteered statements and crying hysterically
when she believed defendant was going to be baby-sitting for her
after the alleged incident occurred.
At the February 1996 trial, D.M.P. testified that she is
seven years of age and currently resides in a foster home. She
knew a person named Andy who baby-sat for her at Vonnie Tucker's
house before she was in kindergarten. She does not recall what
Andy looked like. He made her "suck his private part." He told
her not to tell her mother. Her brother, Donny, and Derrick,
Tucker's son, were there. She and Andy were in the front room of
the house, and Derrick and Donny were in Derrick's room. Andy also
put his private part in her private part. She does not recall
whether Andy baby-sat for her after that incident. She remembers
talking to Terri Allen about what happened and she told her the
truth. She does not remember talking to police officer Rob Copley.
She did not tell Donny about the incident.
On cross-examination, D.M.P. testified that she recalls
telling Allen that no one put anything in her "butt." The incident
did not happen in a bathroom or in any room where there was a
shower. She did talk to Copley about the incident. She also
talked to "Cathy" about it.
Laura Richmiller, family support worker for Bridgeway
Family Services (Bridgeway), testified that Bridgeway does contract
work for the Illinois Department of Children and Family Services
(DCFS). She transports D.M.P. and Donny to counseling appointments
and supervises their visits. On March 29, 1995, she was taking
Donny to a counseling appointment and, afterward, he and D.M.P.
were to visit their mother. They were driving to the visit and the
children were arguing in the car. Donny said, "So, [D.M.P.], you
licked Andy Bow's lizard." D.M.P. said, "So. He made me do it."
Richmiller reported this conversation the following day.
On cross-examination, Richmiller stated that Donny was
eight years of age at the time of this conversation and D.M.P. was
six.
Mary, D.M.P.'s mother, testified that Donny and D.M.P.
have been in foster care since January 27, 1995. They lived with
her prior to that time. Mary identified defendant as Andy Bowen.
Her children called him "Andy Bow." Defendant baby-sat for her
children on three occasions during the time she attended parenting
classes, in either May or June 1992. He baby-sat twice at Tucker's
house and once at another person's house. She stopped having
defendant baby-sit because D.M.P. threw a "fit" one night when she
asked him to baby-sit. D.M.P was crying and hysterical, but
stopped when she realized the baby-sitting arrangements did not
work out and defendant was not going to baby-sit that night. Mary
decided not to ask defendant to baby-sit anymore because of
D.M.P.'s reaction. Approximately one month later, D.M.P. told Mary
while they were at a house in Warsaw that "Andy Bow made her kiss
his pee pee." D.M.P. started crying and did not say any more.
Mary did not report the incident.
Mary testified that she talked to Copley and told him
these incidents would have happened when D.M.P. was three years
old. She denied telling Copley that D.M.P. made the statement only
one week after the incident. At a prior hearing, she testified the
incident could have happened as late as July 1992.
Copley testified that on March 31, 1995, he interviewed
D.M.P. Terri Allen, investigator for DCFS, was also present. He
first interviewed her at the foster home and then again at the
police station, where her interview was videotaped. The State's
Attorney offered into evidence a videotape of the interview and
asked that it be played for the court. The court admitted the
videotape into evidence over defense counsel's objection for the
same reasons the court had given at the section 115-10 hearing.
Counsel also argued the videotape was cumulative to D.M.P.'s trial
testimony and that he did not have an opportunity to cross-examine
her at the time of her statement. The court also noted that the
fact D.M.P. had testified at trial was not a bar to the admission
of the tape. The tape was then played but not transcribed by the
court reporter.
On further direct examination, Copley testified the only
major difference between what D.M.P. told him at the foster home
and during the videotape interview was that at the foster home she
said something came out of defendant's "area." She said she did
not know what color it was except that it was not the color of her
hair (which is blond). In the videotape, she said nothing came
out. Copley put together a photographic array that included
defendant's picture and showed it to D.M.P.'s mother. She picked
the photo of defendant and said he was the person who had baby-sat
for her children. Copley located defendant, read him his Miranda
rights, and interviewed him on April 11, 1995. Defendant said he
baby-sat for D.M.P. and Donny and that he had not seen them for
about three years. He admitted baby-sitting at Tucker's house. At
first, defendant denied touching any of the children in a sexual
manner. When told it was alleged he had put his penis in D.M.P.'s
mouth and in her vagina or "butt," defendant said he could not
remember this happening. When asked if he could honestly say he
had never put his penis in D.M.P.'s mouth, defendant said he could
not honestly say that. Defendant was present at the police station
on April 22, 1995, for a second interview. He was again read his
Miranda rights. That interview was tape-recorded and the tape
admitted into evidence and played for the court, but not tran-
scribed. However, the tape is part of the record on appeal. In
the taped interview, defendant said he baby-sat for D.M.P. and
Donny at Tucker's house. It could have been in May 1992. On one
occasion, defendant got out of the shower and D.M.P. grabbed his
erect penis and put it in her mouth. On another occasion, D.M.P.
slid up and down on his lap. At that time, his penis was erect.
Defendant said he stopped D.M.P. because he knew it was wrong. He
did not ejaculate either time.
On cross-examination, Copley testified that, in the first
interview at the foster home, D.M.P. said that no one had put
anything in her "butt." Later in that interview, she stated that
defendant had put his penis in it. At the first interview, D.M.P.
could not recall whose house she was at when the incident happened.
In the taped interview, she could not recall where the incident
occurred until Copley asked her who "Aunt Vonnie" was and, then,
D.M.P. stated she was at Tucker's house when it happened. Copley
said D.M.P. told him that her mother was working at the time. He
showed D.M.P. the photographic array, and she could not pick out
defendant's picture. She did not mention that the baby-sitter had
a scar on his lip and talks funny; Copley is aware these are
characteristics of defendant. Mary told Copley that defendant
baby-sat two Tuesday nights in a row and, on the third Tuesday
night, D.M.P. "threw a fit." Mary also said that one week later
D.M.P. told her defendant had shown her his "pee pee." Copley
acknowledged that at no time during either interview did D.M.P.
mention that defendant told her not to tell her mother what
happened. It is his understanding that D.M.P. told her brother
about the incident, based upon the conversation in Richmiller's
car.
On redirect examiniation, Copley testified that D.M.P.
initially did not remember some things but, as the interview
progressed, she began to remember and changed her story.
Theresa Sprinkle testified for defendant that during May
1992 she worked at the same place as Tucker. They were both
bartenders. She worked every Tuesday and Thursday from 5 p.m. to
1 a.m. Tucker did not work Tuesdays and Thursdays.
Tucker testified that during May 1992 she worked the day
shift on Monday, Tuesday, Thursday, and Saturday. She finished
work each day at 5 p.m. Defendant baby-sat for her at times, but
never on Tuesday or Thursday evenings. She played darts on
Wednesday evening and that is when he would baby-sit. After she
was married in March 1992, defendant did not baby-sit for her
children or Mary's children in her home.
On cross-examination, Tucker said that the last time
defendant would have baby-sat at her house was in January 1992.
She insisted she was home each Tuesday evening in May 1992. She
then admitted she does not remember exactly what she did on any
given night during that month, but she was not working. She
admitted she sometimes went out on nights other than Wednesday and
had a baby-sitter on those nights. If defendant baby-sat, he did
it at his home after she was married.
After the conclusion of all the evidence, the trial court
found defendant guilty of the charged offense. Following denial of
defendant's post-trial motion and a sentencing hearing, the court
sentenced defendant to nine years' imprisonment and imposed a
sexual assault fine of $100 and restitution of $1,144.97.
Defendant was granted 57 days' credit against his sentence for time
spent in jail awaiting sentence. Finally, the court certified
defendant as a child sex offender.
Defendant first argues on appeal that the proof was
insufficient to convict him. A criminal conviction will not be set
aside unless the evidence is so improbable or unsatisfactory that
it creates a reasonable doubt of the defendant's guilt. People v.
Collins, 106 Ill. 2d 237, 261, 478 N.E.2d 267, 276 (1985). When
presented with a challenge to the sufficiency of the evidence, a
reviewing court will sustain a criminal conviction if "'after
viewing the evidence in the light most favorable to the prosecu-
tion, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.'" (Emphasis in
original.) Collins, 106 Ill. 2d at 261, 478 N.E.2d at 277, quoting
Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789 (1979).
Defendant notes that D.M.P. was only three years of age
at the time of the alleged incident and could not accurately
remember when or where it occurred. He notes the discrepancies in
her interviews with police and the differences between what she
said in the interviews and in her trial testimony. At first, for
instance, she could not remember where the incident had occurred,
then later stated it took place in the front room of Tucker's
house. She also said she did not tell her brother about the
incident, but defendant points to the conversation in Richmiller's
car as evidence that he knew of it. She said at trial that
defendant told her not to tell her mother. However, she said
nothing about this in her interviews. In addition, D.M.P. could
not identify defendant as the man who had molested her. Defendant
also points to the differences between D.M.P.'s version of the
offense and his own statements. Defendant further argues the
evidence does not establish that he baby-sat for D.M.P. in May
1992. He points to the testimony of Tucker and Sprinkle that he
believes refutes the State's claim that the offense was committed
sometime in May 1992.
The credibility of the witnesses and the weight to be
given their testimony are matters within the exclusive province of
the trier of fact. A reviewing court may not substitute its
judgment for that of the jury or trial court in such matters.
People v. Manion, 67 Ill. 2d 564, 578, 367 N.E.2d 1313, 1320
(1977); People v. Ellis, 74 Ill. 2d 489, 496, 384 N.E.2d 331, 334
(1978). Defendant essentially asks us to reweigh the evidence and
determine the credibility of the witnesses. However, this is not
our province as a reviewing court. We do not find the discrepan-
cies between D.M.P.'s testimony and the statements in her police
interviews to be so great as to discredit her testimony as a matter
of law. Any discrepancies affected only the weight to be given her
testimony by the trial court; they did not destroy her credibility.
Contrary to defendant's assertion, the testimony of Tucker and
Sprinkle did not establish as a matter of law that the offense
could not have taken place in May 1992. The evidence was conflict-
ing, and the trial court was required to weigh the evidence and
determine the credibility of the witnesses. These were matters for
the trial court to resolve. In addition, defendant made a
statement in which he stated that he could not remember placing his
penis in D.M.P.'s vagina or "butt," but admitted he could not
"honestly say" that he never inserted his penis in D.M.P.'s mouth.
He then stated that his penis had been in her mouth but only
because she placed it there. The trial court, as trier of fact,
was free to accept defendant's statement that his penis was in
D.M.P.'s mouth but reject his story as to how it got there. We
further note that defendant himself stated the incident could have
happened in May 1992. Based upon the record, we cannot conclude
that no reasonable trier of fact could have found defendant guilty
beyond a reasonable doubt.
Defendant next argues that the trial court committed
reversible error when it admitted into evidence the videotaped
interview of D.M.P. by Copley after D.M.P. had already testified.
He argues that section 115-10 of the Code does not allow for the
admission of such evidence. Section 115-10 of the Code provides in
pertinent part:
"Certain hearsay exceptions.
(a) In a prosecution for a physical or
sexual act perpetrated upon or against a child
under the age of 13, or a person who was an
institutionalized severely or profoundly
mentally retarded person as defined in Section
2-10.1 of the Criminal Code of 1961 at the
time the act was committed, including but not
limited to prosecutions for violations of
Sections 12-13 through 12-16 of the Criminal
Code of 1961 ***, the following evidence shall
be admitted as an exception to the hearsay
rule:
(1) testimony by such child or
institutionalized severely or pro-
foundly mentally retarded person, of
an out of court statement made by
such child or institutionalized se-
verely or profoundly mentally re-
tarded person, that he or she com-
plained of such act to another; and
(2) testimony of an out of
court statement made by such child
or institutionalized severely or
profoundly mentally retarded person,
describing any complaint of such act
or matter or detail pertaining to
any act which is an element of an
offense which is the subject of a
prosecution for a sexual or physical
act perpetrated upon or against a
child or institutionalized severely
or profoundly mentally retarded
person.
(b) Such testimony shall only be admitted
if:
(1) The court finds in a hear-
ing conducted outside the presence
of the jury that the time, content,
and circumstances of the statement
provide sufficient safeguards of
reliability; and
(2) The child or institutional-
ized severely or profoundly mentally
retarded person either:
(A) testifies at the
proceeding; or
(B) is unavailable
as a witness and there is
corroborative evidence of
the act which is the sub-
ject of the statement."
725 ILCS 5/115-10(a),(b)
(West 1994).
The State argues that defendant has waived this argument,
noting that at the section 115-10 hearing, defense counsel objected
to the admission of the videotape only on the basis that a child
could not possibly remember what happened when she was three years
of age. At trial, counsel objected to the videotape on the basis
that the evidence was cumulative to D.M.P.'s trial testimony and he
did not have the opportunity to cross-examine her when her
statement was given. He made no objection on the basis that
section 115-10 of the Code does not permit the introduction into
evidence of a videotaped interview of a child. A specific
objection waives all grounds not asserted. People v. Williams, 97 Ill. 2d 252, 288, 454 N.E.2d 220, 237 (1983). Further, defendant
did not include any claim of error in regard to the videotape in
his post-trial motion. Failure to raise an issue in a post-trial
motion results in waiver of that issue on appeal. People v. Berry,
99 Ill. 2d 499, 503, 460 N.E.2d 742, 744 (1984); People v. Pruden,
110 Ill. App. 3d 250, 256, 442 N.E.2d 284, 289 (1982). Despite
waiver, however, we will address the merits of defendant's
argument.
The issue of admission at trial of videotaped testimony
of a child complainant pursuant to section 115-10 of the Code has
not previously been addressed by this court. However, we have had
occasion to consider the admission of an audiotape of a statement
of a child complainant. In People v. Peck, 285 Ill. App. 3d 14,
674 N.E.2d 440 (1996), defendant was convicted of aggravated
criminal sexual assault of his two young daughters. The trial
court conducted a section 115-10 hearing, at which it determined
that hearsay statements by the girls and an audiotape of a
statement by one of the girls were admissible. All the statements,
including the audiotape, were admitted at defendant's jury trial.
On appeal, defendant challenged admission of the statements. This
court held the hearsay statements were erroneously admitted. As to
the audiotape, the court found some statements on the tape were
improper hearsay and that the tape should not have been admitted
for this reason. However, in considering issues in the case that
would likely arise on remand, we expressed the opinion that the
audiotape of the statement could be admitted at trial pursuant to
section 115-10 of the Code, provided it is otherwise admissible
under that section and a proper foundation is laid for its
admission. In construing section 115-10 of the Code to allow use
of audiotapes of statements, we noted that while a court must give
effect to the plain meaning of a statute, it must also consider the
reason and necessity for the law, as well as the objective the
legislature sought to accomplish. We concluded that the reasonable
meaning of the statute, as well as the goals sought to be accom-
plished in facilitating prosecutions for child sexual abuse,
indicated that an audiotape of a statement could be used if
properly admitted pursuant to section 115-10 of the Code. We noted
that allowing jurors to hear an audiotape of a statement was essen-
tially the same as allowing a third person to testify verbatim
regarding statements made by the child. We also commented that an
audiotape possesses more probative value than the testimony of a
third person because the jury can hear the child's tone of voice
and pauses or hesitation. We acknowledged that the Second District
Appellate Court in People v. Mitchell, 225 Ill. App. 3d 708, 717,
588 N.E.2d 1247, 1253 (1992), held that a videotaped statement of
a child victim was inadmissible at trial under section 115-10 of
the Code. However, we noted this decision was not binding upon us
and we declined to follow it. Peck, 285 Ill. App. 3d at 20, 674 N.E.2d at 444-45.
Defendant urges us to reexamine Peck and hold that a
videotaped statement of a child complainant is not admissible at
trial under section 115-10 of the Code. He argues the videotape
lacks any procedural safeguards, such as contemporaneous cross-
examination. He notes it is unrealistic to expect his counsel to
be able to cross-examine the child about a statement that was given
several months prior to trial. He points out that statements given
by D.M.P. on the videotape were not sworn testimony and complains
that Copley asked leading questions. He also argues the videotaped
testimony allowed the State to present its evidence twice.
Defendant relies upon People v. Bastien, 129 Ill. 2d 64, 80, 541 N.E.2d 670, 677 (1989), in which our supreme court held
unconstitutional section 106A-2 of the Code (Ill. Rev. Stat. 1987,
ch. 38, par. 106A-2), which authorized admission at trial of a
child's videotaped testimony in a sexual abuse case, provided the
child was available at trial for cross-examination. The statute
did not allow for contemporaneous cross-examination of the child by
the defendant. The court held this procedure deprived defendant of
his constitutional right to confrontation.
Defendant here notes that we distinguished the Bastien
case in Peck by pointing out that there was no procedure in that
case for determining that the circumstances of the child victim s
videotaped testimony contained sufficient safeguards of reliabili-
ty. He insists this was not a major factor in Bastien, noting that
the supreme court found little justification to rely upon the
weaker version of the child s testimony when the child must testify
again at trial. The statute at issue in Bastien granted discretion
to the trial court in admitting the videotaped testimony, but set
no standards for the exercise of that discretion. In contrast,
section 115-10 of the Code contains specific requirements to be met
to ensure the child victim s statement is reliable. The videotaped
statement in the instant case was not testimony in the same sense
as was the testimony of the child victim in Bastien. There,
attorneys were present, as well as the court and the defendant.
The videotaping took place in a true courtroom setting. Although
the defendant s attorney was not permitted to ask questions, the
defendant was required to be present at the videotaping. Yet, the
child would be required to go through the same procedure again at
trial, except that he or she would then be subject to cross-
examination. This procedure was truly redundant and, as the
supreme court noted, served no real purpose when the child was
required to testify at the trial. In the instant case, D.M.P. was
not questioned on videotape by the prosecutor; she was interviewed
by a police officer. Under the provisions of section 115-10 of the
Code, that same police officer could have testified verbatim at
trial as to statements made by D.M.P. in the interview. We see no
reasoned distinction between a videotape of a child's statements
and a third person testifying verbatim to those same statements.
The latter procedure is expressly permitted under section 115-10 of
the Code. As we indicated concerning the audiotape in Peck, a
videotape would be more useful in assisting the fact finder in
determining whether the child was being truthful, rather than
simply hearing someone else testify as to what the child said. We
therefore conclude the videotape procedure used here was permissi-
ble under section 115-10 of the Code.
Defendant s final argument is that he is entitled to a
credit against his fine of $5 per day for each day of incarceration
prior to his commitment to the Department of Corrections. He
acknowledges that he did not request the credit at the time of
sentencing. In People v. Toolate, 274 Ill. App. 3d 408, 654 N.E.2d 605 (1995), defendant sought the credit but had not requested it at
sentencing. This court noted the statute granting the credit (725
ILCS 5/110-14 (West 1992)) was amended in 1994 to eliminate the
requirement that the circuit clerk notify a defendant in writing of
his right to request the credit. Pub. Act 88-287, eff. January 1,
1994 (1995 Ill. Laws 2472, 2474), amending 725 ILCS 5/110-14 (West
1992). Thus, the court reasoned, the normal rules of waiver apply
and it was held that the defendant had waived the issue for appeal.
However, our supreme court has very recently abrogated
Toolate and held that a defendant may apply for the credit on
appeal as well as in the trial court. People v. Woodard, 175 Ill. 2d 435, 457-58, 677 N.E.2d 935, 946 (1997). Thus, defendant is
entitled to the credit.
We, therefore, affirm defendant s conviction and sentence
and remand to the trial court for the purpose of amending the order
of judgment and sentence to reflect the proper amount of credit
against defendant s fine.
Affirmed and remanded.
McCULLOUGH and KNECHT, JJ., concur.
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Adams County
ANDREW P. BOWEN, ) No. 95CF200
Defendant-Appellant. )
) Honorable
) Mark A. Schuering,
) Judge Presiding.
_________________________________________________________________
JUSTICE GARMAN delivered the opinion of the court:
Defendant Andrew P. Bowen was charged in the circuit
court of Adams County with one count of aggravated criminal sexual
assault (720 ILCS 5/12-14(b)(1) (West 1994)). He was accused of
placing his penis in the mouth of then three-year-old D.M.P. while
he was baby-sitting her sometime during the month of May 1992.
Following a bench trial, defendant was convicted and subsequently
sentenced to nine years' imprisonment. He now appeals, arguing (1)
he was not proved guilty beyond a reasonable doubt, (2) the trial
court erred in admitting into evidence D.M.P.'s videotaped
interview with police despite the fact she testified at trial, and
(3) he is entitled to $5-per-day credit against his fine for time
spent in jail awaiting sentencing.
A hearing was held pursuant to section 115-10 of the Code
of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-10 (West
1994)), during which three persons to whom D.M.P. had made
statements testified. One of those, Robert Copley, a police
officer for the City of Quincy, conducted a videotaped interview
with D.M.P. The State sought to introduce the videotape recording
through Copley's testimony. Defense counsel objected on the basis
that a child could not possibly remember what happened to her when
she was three years old. The trial court granted the State's
request, finding that the minor was unavailable because of
limitations demonstrated during an in camera examination. The
court also found that the time, content, and circumstances of the
videotaped statement provided sufficient safeguards of reliability.
The court noted the minor's statements were corroborated by other
evidence, including volunteered statements and crying hysterically
when she believed defendant was going to be baby-sitting for her
after the alleged incident occurred.
At the February 1996 trial, D.M.P. testified that she is
seven years of age and currently resides in a foster home. She
knew a person named Andy who baby-sat for her at Vonnie Tucker's
house before she was in kindergarten. She does not recall what
Andy looked like. He made her "suck his private part." He told
her not to tell her mother. Her brother, Donny, and Derrick,
Tucker's son, were there. She and Andy were in the front room of
the house, and Derrick and Donny were in Derrick's room. Andy also
put his private part in her private part. She does not recall
whether Andy baby-sat for her after that incident. She remembers
talking to Terri Allen about what happened and she told her the
truth. She does not remember talking to police officer Rob Copley.
She did not tell Donny about the incident.
On cross-examination, D.M.P. testified that she recalls
telling Allen that no one put anything in her "butt." The incident
did not happen in a bathroom or in any room where there was a
shower. She did talk to Copley about the incident. She also
talked to "Cathy" about it.
Laura Richmiller, family support worker for Bridgeway
Family Services (Bridgeway), testified that Bridgeway does contract
work for the Illinois Department of Children and Family Services
(DCFS). She transports D.M.P. and Donny to counseling appointments
and supervises their visits. On March 29, 1995, she was taking
Donny to a counseling appointment and, afterward, he and D.M.P.
were to visit their mother. They were driving to the visit and the
children were arguing in the car. Donny said, "So, [D.M.P.], you
licked Andy Bow's lizard." D.M.P. said, "So. He made me do it."
Richmiller reported this conversation the following day.
On cross-examination, Richmiller stated that Donny was
eight years of age at the time of this conversation and D.M.P. was
six.
Mary, D.M.P.'s mother, testified that Donny and D.M.P.
have been in foster care since January 27, 1995. They lived with
her prior to that time. Mary identified defendant as Andy Bowen.
Her children called him "Andy Bow." Defendant baby-sat for her
children on three occasions during the time she attended parenting
classes, in either May or June 1992. He baby-sat twice at Tucker's
house and once at another person's house. She stopped having
defendant baby-sit because D.M.P. threw a "fit" one night when she
asked him to baby-sit. D.M.P was crying and hysterical, but
stopped when she realized the baby-sitting arrangements did not
work out and defendant was not going to baby-sit that night. Mary
decided not to ask defendant to baby-sit anymore because of
D.M.P.'s reaction. Approximately one month later, D.M.P. told Mary
while they were at a house in Warsaw that "Andy Bow made her kiss
his pee pee." D.M.P. started crying and did not say any more.
Mary did not report the incident.
Mary testified that she talked to Copley and told him
these incidents would have happened when D.M.P. was three years
old. She denied telling Copley that D.M.P. made the statement only
one week after the incident. At a prior hearing, she testified the
incident could have happened as late as July 1992.
Copley testified that on March 31, 1995, he interviewed
D.M.P. Terri Allen, investigator for DCFS, was also present. He
first interviewed her at the foster home and then again at the
police station, where her interview was videotaped. The State's
Attorney offered into evidence a videotape of the interview and
asked that it be played for the court. The court admitted the
videotape into evidence over defense counsel's objection for the
same reasons the court had given at the section 115-10 hearing.
Counsel also argued the videotape was cumulative to D.M.P.'s trial
testimony and that he did not have an opportunity to cross-examine
her at the time of her statement. The court also noted that the
fact D.M.P. had testified at trial was not a bar to the admission
of the tape. The tape was then played but not transcribed by the
court reporter.
On further direct examination, Copley testified the only
major difference between what D.M.P. told him at the foster home
and during the videotape interview was that at the foster home she
said something came out of defendant's "area." She said she did
not know what color it was except that it was not the color of her
hair (which is blond). In the videotape, she said nothing came
out. Copley put together a photographic array that included
defendant's picture and showed it to D.M.P.'s mother. She picked
the photo of defendant and said he was the person who had baby-sat
for her children. Copley located defendant, read him his Miranda
rights, and interviewed him on April 11, 1995. Defendant said he
baby-sat for D.M.P. and Donny and that he had not seen them for
about three years. He admitted baby-sitting at Tucker's house. At
first, defendant denied touching any of the children in a sexual
manner. When told it was alleged he had put his penis in D.M.P.'s
mouth and in her vagina or "butt," defendant said he could not
remember this happening. When asked if he could honestly say he
had never put his penis in D.M.P.'s mouth, defendant said he could
not honestly say that. Defendant was present at the police station
on April 22, 1995, for a second interview. He was again read his
Miranda rights. That interview was tape-recorded and the tape
admitted into evidence and played for the court, but not tran-
scribed. However, the tape is part of the record on appeal. In
the taped interview, defendant said he baby-sat for D.M.P. and
Donny at Tucker's house. It could have been in May 1992. On one
occasion, defendant got out of the shower and D.M.P. grabbed his
erect penis and put it in her mouth. On another occasion, D.M.P.
slid up and down on his lap. At that time, his penis was erect.
Defendant said he stopped D.M.P. because he knew it was wrong. He
did not ejaculate either time.
On cross-examination, Copley testified that, in the first
interview at the foster home, D.M.P. said that no one had put
anything in her "butt." Later in that interview, she stated that
defendant had put his penis in it. At the first interview, D.M.P.
could not recall whose house she was at when the incident happened.
In the taped interview, she could not recall where the incident
occurred until Copley asked her who "Aunt Vonnie" was and, then,
D.M.P. stated she was at Tucker's house when it happened. Copley
said D.M.P. told him that her mother was working at the time. He
showed D.M.P. the photographic array, and she could not pick out
defendant's picture. She did not mention that the baby-sitter had
a scar on his lip and talks funny; Copley is aware these are
characteristics of defendant. Mary told Copley that defendant
baby-sat two Tuesday nights in a row and, on the third Tuesday
night, D.M.P. "threw a fit." Mary also said that one week later
D.M.P. told her defendant had shown her his "pee pee." Copley
acknowledged that at no time during either interview did D.M.P.
mention that defendant told her not to tell her mother what
happened. It is his understanding that D.M.P. told her brother
about the incident, based upon the conversation in Richmiller's
car.
On redirect examiniation, Copley testified that D.M.P.
initially did not remember some things but, as the interview
progressed, she began to remember and changed her story.
Theresa Sprinkle testified for defendant that during May
1992 she worked at the same place as Tucker. They were both
bartenders. She worked every Tuesday and Thursday from 5 p.m. to
1 a.m. Tucker did not work Tuesdays and Thursdays.
Tucker testified that during May 1992 she worked the day
shift on Monday, Tuesday, Thursday, and Saturday. She finished
work each day at 5 p.m. Defendant baby-sat for her at times, but
never on Tuesday or Thursday evenings. She played darts on
Wednesday evening and that is when he would baby-sit. After she
was married in March 1992, defendant did not baby-sit for her
children or Mary's children in her home.
On cross-examination, Tucker said that the last time
defendant would have baby-sat at her house was in January 1992.
She insisted she was home each Tuesday evening in May 1992. She
then admitted she does not remember exactly what she did on any
given night during that month, but she was not working. She
admitted she sometimes went out on nights other than Wednesday and
had a baby-sitter on those nights. If defendant baby-sat, he did
it at his home after she was married.
After the conclusion of all the evidence, the trial court
found defendant guilty of the charged offense. Following denial of
defendant's post-trial motion and a sentencing hearing, the court
sentenced defendant to nine years' imprisonment and imposed a
sexual assault fine of $100 and restitution of $1,144.97.
Defendant was granted 57 days' credit against his sentence for time
spent in jail awaiting sentence. Finally, the court certified
defendant as a child sex offender.
Defendant first argues on appeal that the proof was
insufficient to convict him. A criminal conviction will not be set
aside unless the evidence is so improbable or unsatisfactory that
it creates a reasonable doubt of the defendant's guilt. People v.
Collins, 106 Ill. 2d 237, 261, 478 N.E.2d 267, 276 (1985). When
presented with a challenge to the sufficiency of the evidence, a
reviewing court will sustain a criminal conviction if "'after
viewing the evidence in the light most favorable to the prosecu-
tion, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.'" (Emphasis in
original.) Collins, 106 Ill. 2d at 261, 478 N.E.2d at 277, quoting
Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789 (1979).
Defendant notes that D.M.P. was only three years of age
at the time of the alleged incident and could not accurately
remember when or where it occurred. He notes the discrepancies in
her interviews with police and the differences between what she
said in the interviews and in her trial testimony. At first, for
instance, she could not remember where the incident had occurred,
then later stated it took place in the front room of Tucker's
house. She also said she did not tell her brother about the
incident, but defendant points to the conversation in Richmiller's
car as evidence that he knew of it. She said at trial that
defendant told her not to tell her mother. However, she said
nothing about this in her interviews. In addition, D.M.P. could
not identify defendant as the man who had molested her. Defendant
also points to the differences between D.M.P.'s version of the
offense and his own statements. Defendant further argues the
evidence does not establish that he baby-sat for D.M.P. in May
1992. He points to the testimony of Tucker and Sprinkle that he
believes refutes the State's claim that the offense was committed
sometime in May 1992.
The credibility of the witnesses and the weight to be
given their testimony are matters within the exclusive province of
the trier of fact. A reviewing court may not substitute its
judgment for that of the jury or trial court in such matters.
People v. Manion, 67 Ill. 2d 564, 578, 367 N.E.2d 1313, 1320
(1977); People v. Ellis, 74 Ill. 2d 489, 496, 384 N.E.2d 331, 334
(1978). Defendant essentially asks us to reweigh the evidence and
determine the credibility of the witnesses. However, this is not
our province as a reviewing court. We do not find the discrepan-
cies between D.M.P.'s testimony and the statements in her police
interviews to be so great as to discredit her testimony as a matter
of law. Any discrepancies affected only the weight to be given her
testimony by the trial court; they did not destroy her credibility.
Contrary to defendant's assertion, the testimony of Tucker and
Sprinkle did not establish as a matter of law that the offense
could not have taken place in May 1992. The evidence was conflict-
ing, and the trial court was required to weigh the evidence and
determine the credibility of the witnesses. These were matters for
the trial court to resolve. In addition, defendant made a
statement in which he stated that he could not remember placing his
penis in D.M.P.'s vagina or "butt," but admitted he could not
"honestly say" that he never inserted his penis in D.M.P.'s mouth.
He then stated that his penis had been in her mouth but only
because she placed it there. The trial court, as trier of fact,
was free to accept defendant's statement that his penis was in
D.M.P.'s mouth but reject his story as to how it got there. We
further note that defendant himself stated the incident could have
happened in May 1992. Based upon the record, we cannot conclude
that no reasonable trier of fact could have found defendant guilty
beyond a reasonable doubt.
Defendant next argues that the trial court committed
reversible error when it admitted into evidence the videotaped
interview of D.M.P. by Copley after D.M.P. had already testified.
He argues that section 115-10 of the Code does not allow for the
admission of such evidence. Section 115-10 of the Code provides in
pertinent part:
"Certain hearsay exceptions.
(a) In a prosecution for a physical or
sexual act perpetrated upon or against a child
under the age of 13, or a person who was an
institutionalized severely or profoundly
mentally retarded person as defined in Section
2-10.1 of the Criminal Code of 1961 at the
time the act was committed, including but not
limited to prosecutions for violations of
Sections 12-13 through 12-16 of the Criminal
Code of 1961 ***, the following evidence shall
be admitted as an exception to the hearsay
rule:
(1) testimony by such child or
institutionalized severely or pro-
foundly mentally retarded person, of
an out of court statement made by
such child or institutionalized se-
verely or profoundly mentally re-
tarded person, that he or she com-
plained of such act to another; and
(2) testimony of an out of
court statement made by such child
or institutionalized severely or
profoundly mentally retarded person,
describing any complaint of such act
or matter or detail pertaining to
any act which is an element of an
offense which is the subject of a
prosecution for a sexual or physical
act perpetrated upon or against a
child or institutionalized severely
or profoundly mentally retarded
person.
(b) Such testimony shall only be admitted
if:
(1) The court finds in a hear-
ing conducted outside the presence
of the jury that the time, content,
and circumstances of the statement
provide sufficient safeguards of
reliability; and
(2) The child or institutional-
ized severely or profoundly mentally
retarded person either:
(A) testifies at the
proceeding; or
(B) is unavailable
as a witness and there is
corroborative evidence of
the act which is the sub-
ject of the statement."
725 ILCS 5/115-10(a),(b)
(West 1994).
The State argues that defendant has waived this argument,
noting that at the section 115-10 hearing, defense counsel objected
to the admission of the videotape only on the basis that a child
could not possibly remember what happened when she was three years
of age. At trial, counsel objected to the videotape on the basis
that the evidence was cumulative to D.M.P.'s trial testimony and he
did not have the opportunity to cross-examine her when her
statement was given. He made no objection on the basis that
section 115-10 of the Code does not permit the introduction into
evidence of a videotaped interview of a child. A specific
objection waives all grounds not asserted. People v. Williams, 97 Ill. 2d 252, 288, 454 N.E.2d 220, 237 (1983). Further, defendant
did not include any claim of error in regard to the videotape in
his post-trial motion. Failure to raise an issue in a post-trial
motion results in waiver of that issue on appeal. People v. Berry,
99 Ill. 2d 499, 503, 460 N.E.2d 742, 744 (1984); People v. Pruden,
110 Ill. App. 3d 250, 256, 442 N.E.2d 284, 289 (1982). Despite
waiver, however, we will address the merits of defendant's
argument.
The issue of admission at trial of videotaped testimony
of a child complainant pursuant to section 115-10 of the Code has
not previously been addressed by this court. However, we have had
occasion to consider the admission of an audiotape of a statement
of a child complainant. In People v. Peck, 285 Ill. App. 3d 14,
674 N.E.2d 440 (1996), defendant was convicted of aggravated
criminal sexual assault of his two young daughters. The trial
court conducted a section 115-10 hearing, at which it determined
that hearsay statements by the girls and an audiotape of a
statement by one of the girls were admissible. All the statements,
including the audiotape, were admitted at defendant's jury trial.
On appeal, defendant challenged admission of the statements. This
court held the hearsay statements were erroneously admitted. As to
the audiotape, the court found some statements on the tape were
improper hearsay and that the tape should not have been admitted
for this reason. However, in considering issues in the case that
would likely arise on remand, we expressed the opinion that the
audiotape of the statement could be admitted at trial pursuant to
section 115-10 of the Code, provided it is otherwise admissible
under that section and a proper foundation is laid for its
admission. In construing section 115-10 of the Code to allow use
of audiotapes of statements, we noted that while a court must give
effect to the plain meaning of a statute, it must also consider the
reason and necessity for the law, as well as the objective the
legislature sought to accomplish. We concluded that the reasonable
meaning of the statute, as well as the goals sought to be accom-
plished in facilitating prosecutions for child sexual abuse,
indicated that an audiotape of a statement could be used if
properly admitted pursuant to section 115-10 of the Code. We noted
that allowing jurors to hear an audiotape of a statement was essen-
tially the same as allowing a third person to testify verbatim
regarding statements made by the child. We also commented that an
audiotape possesses more probative value than the testimony of a
third person because the jury can hear the child's tone of voice
and pauses or hesitation. We acknowledged that the Second District
Appellate Court in People v. Mitchell, 225 Ill. App. 3d 708, 717,
588 N.E.2d 1247, 1253 (1992), held that a videotaped statement of
a child victim was inadmissible at trial under section 115-10 of
the Code. However, we noted this decision was not binding upon us
and we declined to follow it. Peck, 285 Ill. App. 3d at 20, 674 N.E.2d at 444-45.
Defendant urges us to reexamine Peck and hold that a
videotaped statement of a child complainant is not admissible at
trial under section 115-10 of the Code. He argues the videotape
lacks any procedural safeguards, such as contemporaneous cross-
examination. He notes it is unrealistic to expect his counsel to
be able to cross-examine the child about a statement that was given
several months prior to trial. He points out that statements given
by D.M.P. on the videotape were not sworn testimony and complains
that Copley asked leading questions. He also argues the videotaped
testimony allowed the State to present its evidence twice.
Defendant relies upon People v. Bastien, 129 Ill. 2d 64, 80, 541 N.E.2d 670, 677 (1989), in which our supreme court held
unconstitutional section 106A-2 of the Code (Ill. Rev. Stat. 1987,
ch. 38, par. 106A-2), which authorized admission at trial of a
child's videotaped testimony in a sexual abuse case, provided the
child was available at trial for cross-examination. The statute
did not allow for contemporaneous cross-examination of the child by
the defendant. The court held this procedure deprived defendant of
his constitutional right to confrontation.
Defendant here notes that we distinguished the Bastien
case in Peck by pointing out that there was no procedure in that
case for determining that the circumstances of the child victim s
videotaped testimony contained sufficient safeguards of reliabili-
ty. He insists this was not a major factor in Bastien, noting that
the supreme court found little justification to rely upon the
weaker version of the child s testimony when the child must testify
again at trial. The statute at issue in Bastien granted discretion
to the trial court in admitting the videotaped testimony, but set
no standards for the exercise of that discretion. In contrast,
section 115-10 of the Code contains specific requirements to be met
to ensure the child victim s statement is reliable. The videotaped
statement in the instant case was not testimony in the same sense
as was the testimony of the child victim in Bastien. There,
attorneys were present, as well as the court and the defendant.
The videotaping took place in a true courtroom setting. Although
the defendant s attorney was not permitted to ask questions, the
defendant was required to be present at the videotaping. Yet, the
child would be required to go through the same procedure again at
trial, except that he or she would then be subject to cross-
examination. This procedure was truly redundant and, as the
supreme court noted, served no real purpose when the child was
required to testify at the trial. In the instant case, D.M.P. was
not questioned on videotape by the prosecutor; she was interviewed
by a police officer. Under the provisions of section 115-10 of the
Code, that same police officer could have testified verbatim at
trial as to statements made by D.M.P. in the interview. We see no
reasoned distinction between a videotape of a child's statements
and a third person testifying verbatim to those same statements.
The latter procedure is expressly permitted under section 115-10 of
the Code. As we indicated concerning the audiotape in Peck, a
videotape would be more useful in assisting the fact finder in
determining whether the child was being truthful, rather than
simply hearing someone else testify as to what the child said. We
therefore conclude the videotape procedure used here was permissi-
ble under section 115-10 of the Code.
Defendant s final argument is that he is entitled to a
credit against his fine of $5 per day for each day of incarceration
prior to his commitment to the Department of Corrections. He
acknowledges that he did not request the credit at the time of
sentencing. In People v. Toolate, 274 Ill. App. 3d 408, 654 N.E.2d 605 (1995), defendant sought the credit but had not requested it at
sentencing. This court noted the statute granting the credit (725
ILCS 5/110-14 (West 1992)) was amended in 1994 to eliminate the
requirement that the circuit clerk notify a defendant in writing of
his right to request the credit. Pub. Act 88-287, eff. January 1,
1994 (1995 Ill. Laws 2472, 2474), amending 725 ILCS 5/110-14 (West
1992). Thus, the court reasoned, the normal rules of waiver apply
and it was held that the defendant had waived the issue for appeal.
However, our supreme court has very recently abrogated
Toolate and held that a defendant may apply for the credit on
appeal as well as in the trial court. People v. Woodard, 175 Ill. 2d 435, 457-58, 677 N.E.2d 935, 946 (1997). Thus, defendant is
entitled to the credit.
We, therefore, affirm defendant s conviction and sentence
and remand to the trial court for the purpose of amending the order
of judgment and sentence to reflect the proper amount of credit
against defendant s fine.
Affirmed and remanded.
McCULLOUGH and KNECHT, JJ., concur.
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