People v. DeWeese

FIRST DIVISION
July 20, 1998

No. 1-96-4366

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee,

v.

JOHN DEWEESE,

Defendant-Appellant.)
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)Appeal from the
Circuit Court of
Cook County

Honorable
Thomas F. Carmody,
Judge Presiding.
 JUSTICE O'BRIEN delivered the opinion of the court:
Defendant, John DeWeese, was charged with three counts of
aggravated criminal sexual assault against his almost five year old
daughter, D. After a bench trial, the court found defendant guilty
of aggravated criminal sexual abuse and sentenced him to six years
in prison. Defendant appeals, contending (1) the trial court erred
in convicting of him of aggravated criminal sexual abuse, which was
not charged in the indictment nor was it a lesser included offense
of aggravated criminal sexual assault; (2) the trial court abused
its discretion in determining that D. was competent to testify; and
(3) the mittimus must be corrected so that it accurately reflects
the trial court's judgment. We affirm defendant's conviction and
amend the mittimus to conform to the judgment entered by the trial
court.
At trial, Julia Porreca testified she is the grandmother of D.
On August 1, 1995, Porreca was at her daughter's house, watching
television with D. Porreca noticed that D. was "lying on her
stomach with her hands clenched in front of her, and she was moving
her pelvis, *** motioning like up and down like in the sexual act."

Porreca asked D. what she was doing, and D. told her she was
"doing exercise." Porreca asked her who told her about this
exercise, and D. responded "daddy." Porreca asked D. whether her
daddy had said anything else to her, and D. stated "in and out."
Porreca asked "in and out where?" and D. said "down there" and
pointed to her private parts.
Porreca testified that D. then took her by the hand and led
her into the bedroom, where D. picked up a bottle and said "This is
the bottle that he used." Porreca asked D. how her daddy had used
the bottle, and D. said "it burned and it hurt." Porreca asked D.
whether she had told her mommy about this, and D. said "no."
Porreca asked D. why she had not confided in her mommy, and D.
responded that her daddy told her "he would throw her out the
window and that he had a bullet for her."
Julie DeWeese testified she has two daughters, R., and D., and
that defendant is her ex-husband and D.'s father. Julie testified
that on August 1, 1995, she left her house at around 9 or 10 a.m.
Julie's mom (Porreca) babysat while she was away. When Julie
returned home in the afternoon, Porreca told her about D.'s
allegations against defendant.
Julie testified she spoke with D. the next day, August 2, in
the bathroom. Julie asked D. about the "exercises" and D. told her
"these are the exercises I do with daddy." Julie asked "for what?"
D. responded "for in and out," and then she placed a finger from
her right hand in between two fingers on her left hand. Julie
testified that she then asked D. whether her daddy touched her
"anywhere he wasn't supposed to." D. said "yes," and stated that
he touched her on the neck, chest, stomach, buttocks and
"chiconnes." Julie testified that "chiconnes" was a family word
meaning "vagina."
Julie asked D. what happened when her daddy touched her chest.
D. refused to answer, and Julie assured her that she was safe and
that nobody would hurt her. D. shook her head and said, "No, no.
It's sick. It's sick." After about a minute, D. said, "He would
take things and shove them up my hole and it would burn, mommy, and
he told me to put my legs together."
Julie asked D. why she never told her about this before. D.
responded that her daddy threatened to shoot her and throw her out
the window if she talked to Julie.
Julie asked D. to describe the items he put in her vagina, and
D. led her into the bedroom and pointed to cologne bottles. Julie
asked D. to describe what daddy did with the cologne bottles, and
D. said he would "shove them up her hole," that it burned, and that
he would then "take a curtain and wipe it." D. told Julie that her
daddy used the bottles on her when Julie was out of the house,
usually when Julie picked R. up from school or visited a neighbor.
Julie took D. to Loyola Hospital on August 3, 1995, where
Doctor Beltran examined her vagina and rectum. D. was upset
throughout the examination, screaming that "it burned."
Julie testified that for about a year prior to her August 2
conversation with D., Julie had noticed that D.'s vaginal area was
red, and that she suffered from vaginal irritation. Julie did not
mention this redness to Julie's doctor because she (Julie)
attributed the irritation to factors such as D. having strong urine
or failing to wipe herself properly after urination.
The parties stipulated that Doctor Fran Skulavich would
testify that D. visited her eight times in 1995, and during those
visits the doctor treated D. for a stomach ache, headache, cough,
low grade fever, and pharyngitis. Doctor Skulavich never conducted
a vaginal exam on D.
The State called D., who was six years of age at the time of
trial and had earlier been found competent to testify. The State
questioned D. about the cologne bottles. At first, D. stated she
"forgot" what happened. However, D. later testified that her
father had put the bottles up her "chiconnes." On cross-
examination, D. agreed that her allegations against her father were
"just a story." On redirect examination, D. testified she was
telling the truth about what her daddy did with the bottles.
Defendant testified on his own behalf and denied sexually
assaulting D. and denied placing cologne bottles in her vagina.
Following closing arguments, the trial court acquitted
defendant of aggravated criminal sexual assault, but convicted him
of aggravated criminal sexual abuse. The court later sentenced
defendant to six years in prison. Defendant filed this timely
appeal.
First, defendant argues that the trial court erred in
convicting him of a crime, aggravated criminal sexual abuse, which
was not charged in the indictment.
A defendant cannot be convicted of an offense with which he
has not been charged. People v. Novak, 163 Ill. 2d 93, 105 (1994).
However, a defendant may be convicted of an offense not expressly
included in the charging instrument if the offense is a lesser
included offense of the crime charged. Novak, 163 Ill. 2d at 105.
The trial court determined that aggravated criminal sexual
abuse is a lesser included offense of aggravated criminal sexual
assault. Defendant contends the trial court erred in that
determination and cites in support People v. Novak. Novak was
charged and convicted of aggravated criminal sexual assault.
Novak, 163 Ill. 2d at 97. On appeal, he argued that the trial
court erred by refusing his tendered jury instruction on the lesser
included offense of aggravated criminal sexual abuse. Novak, 163 Ill. 2d at 105. The supreme court held that in determining whether
a particular offense is included in a charged offense, the proper
approach is to examine the charging instrument. Novak, 163 Ill. 2d
at 112-13. Under this charging instrument approach, an offense is
identified as a lesser included offense if the charging instrument
contains a "broad foundation" or "main outline" of the lesser
offense. Novak, 163 Ill. 2d at 107.
Novak was indicted as follows:
"Chester M. Novak committed the offense of
aggravated criminal sexual assault in that he was
seventeen years of age or over and committed an act
of sexual penetration upon [the victim], to wit:
contact between Chester M. Novak's penis and [the
victim's] mouth and [the victim] was under thirteen
years when the act of sexual penetration was
committed ***." Novak, 163 Ill. 2d at 114.
Our supreme court held that the indictment against Novak did
not describe the foundation or main outline of aggravated criminal
sexual abuse. Novak, 163 Ill. 2d at 114. A defendant commits
aggravated criminal sexual abuse if he "was 17 years of age or over
and (i) commits an act of sexual conduct with a victim who was
under 13 years of age when the act was committed." 720 ILCS 5/12-
16(c)(1)(West 1996). Sexual conduct means, in relevant part, "any
intentional or knowing touching or fondling by *** the accused,
either directly or through clothing, of *** any part of the body of
a child under 13 years of age, for the purpose of sexual
gratification or arousal." 720 ILCS 5/12-12(e)(West 1996).
The supreme court noted that the indictment did not describe
any touching or fondling of the victim's body parts for the purpose
of sexual gratification or arousal. Novak, 163 Ill. 2d at 114.
Accordingly, the court held that the indictment did not describe
aggravated criminal sexual abuse. Novak, 163 Ill. 2d at 115.
In the present case, the three counts of the indictment
charging defendant with aggravated criminal sexual assault are as
follows:
"He, committed an act of sexual penetration, upon
[D.], to wit: contact between numerous cologne
bottles, [defendant's] finger and [D.'s] vagina by
the threat of force, and caused bodily harm to [D.]
***."

"He was seventeen years of age or over and
committed an act of sexual penetration upon [D.],
to wit: contact between numerous cologne bottles,
[defendant's] finger and [D.'s] vagina and [D.] was
under thirteen years of age when the act of sexual
penetration was committed ***."

"He, committed an act of sexual penetration, upon
[D.], to wit: contact between numerous cologne
bottles, [defendant's] finger and [D.'s] vagina and
he knew that [D.] was unable to understand the
nature of the act, and caused bodily harm to [D.]
***."

Defendant argues that, as in Novak, the indictment does not
describe the foundation or main outline of aggravated criminal
sexual abuse, because it contains no language describing any
touching or fondling of the victim for purposes of sexual
gratification or arousal.
However, two recent supreme court cases, People v. DiLorenzo,
169 Ill. 2d 318 (1996), and People v. Hamilton, 179 Ill. 2d 319
(1997), cast doubt on whether such language is required.
In DiLorenzo, defendant was charged with aggravated criminal
sexual abuse in that "he, who was 17 years of age or older,
knowingly committed an act of sexual conduct with [the victim] who
was under 13 years of age when the act was committed." DiLorenzo,
169 Ill. 2d at 322. The trial court found him guilty and sentenced
him to 14 years in prison. DiLorenzo, 169 Ill. 2d at 320.
On appeal, DiLorenzo argued that the indictment was fatally
defective because it did not include a material element of the
offense, specifically, that the sexual conduct was for the purpose
of sexual gratification. DiLorenzo, 169 Ill. 2d at 322. The
supreme court rejected his argument, noting that the indictment
apprised DiLorenzo of the precise offense charged with enough
specificity to prepare his defense. DiLorenzo, 169 Ill. 2d at 323-
25.
In People v. Hamilton, defendant was convicted of residential
burglary and sentenced to 18 years in prison. Hamilton, 179 Ill. 2d at 320-21. On appeal, he argued that the trial court erred by
refusing his tendered instructions on the lesser included offense
of theft. Hamilton, 179 Ill. 2d at 322-23. The majority of the
appellate court analyzed the charging instrument and determined
that it did not set out the broad foundation of theft because it
did not mention all the statutory elements of theft. Hamilton, 179 Ill. 2d at 325. Our supreme court, though, held that "to warrant
instructions on a lesser offense under the charging instrument
approach, it is not necessary for the charging instrument to
expressly allege all the elements of the lesser offense.
[Citation.] This court has readily found necessary statutory
elements to be 'implicitly' contained in a charging instrument."
Hamilton, 179 Ill. 2d at 325. The supreme court determined that
the charging instrument sufficiently identified theft as a lesser
included offense of residential burglary. Hamilton, 179 Ill. 2d at
325.
Under the analysis employed in DiLorenzo and Hamilton,
aggravated criminal sexual abuse can be found as a lesser offense
of aggravated criminal sexual assault, even where the indictment
omits language describing defendant's touching or fondling of the
victim for purposes of sexual gratification or arousal. The focus
is whether said language is implicitly contained in the charging
instrument, and whether the indictment as a whole sets forth the
main outline or broad foundation of aggravated criminal sexual
abuse.
The indictment here alleges contact between defendant's
finger, numerous cologne bottles, and D.'s vagina. Such language
is sufficient to establish defendant's touching of D.'s body. The
indictment further alleges that defendant used the threat of force
to initiate said contact with D.'s vagina. The "threat of force"
language and the area of D.'s body touched by defendant implicitly
connotes that defendant touched D.'s vagina, not by mistake,
inadvertence, or for medical reasons, but instead for the purpose
of his sexual gratification or arousal. The indictment also
explicitly states that defendant was over 17 years of age and that
D. was under 13 years of age. Thus, the indictment contains the
main outline or broad foundation of aggravated criminal sexual
abuse, specifically, that defendant was over 17 years of age and
engaged in sexual conduct with D., who was under 13 years of age.
Accordingly, under the charging instrument approach, the trial
court correctly determined that in this case aggravated criminal
sexual abuse was a lesser included offense of aggravated criminal
sexual assault.
Next, we examine the evidence at trial to determine whether
the trier of fact could rationally find defendant guilty of the
lesser included offense and acquit him of the greater offense. See
Novak, 163 Ill. 2d at 108.
We begin by examining whether the trial court could rationally
acquit defendant of the greater offense, aggravated criminal sexual
assault, which requires proof of sexual penetration, defined as
"any intrusion, however slight, of any part of the body of one
person *** into the sex organ *** of another person." 720 ILCS
5/12-12(f)(West 1996). At trial, D.'s mother and grandmother
testified that D. told them that defendant had shoved cologne
bottles up her vagina. However, no medical evidence was presented
to support said charges, and defendant took the stand and denied
D.'s accusations. Further, D. initially testified that she "forgot"
what had happened with the bottles. The trial court could
rationally determine from said evidence that the State did not
prove defendant committed an act of sexual penetration, and, thus,
that he was not guilty of aggravated criminal sexual assault.
Next, we examine whether the trier of fact could rationally
find defendant guilty of aggravated criminal sexual abuse, that is,
that he was 17 years of age or older and committed an act of sexual
conduct with a victim under 13 years of age. See 720 ILCS 5/12-
16(c)(1)(West 1996). Sexual conduct is defined as "any intentional
or knowing touching or fondling by *** the accused, either directly
or through clothing, of the sex organs, anus or breast of the
victim *** or any part of the body of a child under 13 years of
age, for the purpose of sexual gratification or arousal." 720 ILCS
5/12-12(e)(West 1996).
At trial, the evidence established that defendant was over 17
years of age and that D. was under 13 years of age. Moreover, D.'s
mother, Julie, testified that D. told her that defendant had
touched her neck, chest, stomach, buttocks, and vagina, and that
defendant had threatened to shoot D. if she told her mommy about
how he touched her. D.'s grandmother also testified that D.
pointed to her vagina when questioned about the "exercises" her
father did with her. The trial court could rationally find from
said testimony that defendant touched D.'s sex organs and other
parts of her body for the purpose of his sexual gratification or
arousal. Accordingly, we affirm defendant's conviction for
aggravated criminal sexual abuse.
Next, defendant argues the trial court erred in determining
that D. was competent to testify. In determining the competency of
a witness to testify, the trial court considers four criteria: (1)
the ability of the witness to receive correct impressions from her
senses; (2) the ability to recollect these impressions; (3) the
ability to understand questions and express answers; and (4) the
ability to appreciate the moral duty to tell the truth. People v.
Puhl, 211 Ill. App. 3d 457, 466 (1991). The trial court's
determination will not be disturbed unless the court abused its
discretion or manifestly misapprehended some legal principle.
Puhl, 211 Ill. App. 3d at 466.
At the competency hearing, D. spelled her full name and told
the court her age, her birthday, her street address, and the names
of the people with whom she lives. D. also related her sister's
name and age, her dog's name, the grade she was in at school, and
the name of her school. When the assistant State's Attorney asked
her the difference between a truth and a lie, D. responded that
"the truth is you tell it like it is. A lie is you say something
that isn't true." D. also stated that a lie is "a bad thing," and
that a lie "get[s] [her] in trouble" and causes mommy to "ground[]
[her]."
The trial court determined that D. was competent to testify
based upon "her ability to know who she was, where she was, where
she goes to school, what grade she was in, her ability to
understand all of the questions that really were asked of her." We
find no abuse of discretion.
Defendant argues, though, that D.'s testimony at trial
indicates that she was incompetent to testify. In particular,
defendant points to D.'s initial inability to explain why she was
in court or to identify the subject about which she was to testify.
Defendant also argues that D. "did not testify that her father
[had] sexually molested her until the prosecutor overtly suggested
to [D.], during direct examination, that she had been molested by
her father."
However, a child need not give perfect answers to questions
asked during a competency hearing or at trial to be deemed a
competent witness. People v. Mitchell, 215 Ill. App. 3d 849, 857
(1991). Once the court determines that the minor is competent to
testify, any confusion or contradiction in her later testimony only
goes to credibility as a witness, not her competency to testify.
Mitchell, 215 Ill. App. 3d at 857. Thus, contrary to defendant's
argument, the complained-of trial testimony goes to D.'s
credibility, not her competency. Further, an examination of D. s
trial testimony indicates that once she got over her initial
reluctance to testify, she answered the questions posed to her and
gave testimony consistent with that of her mother and grandmother.
Thus, D.'s trial testimony ultimately corroborated the trial
court's determination that she was competent to testify. We find
no abuse of discretion.
Finally, defendant contends, and the State agrees, that the
mittimus must be corrected to reflect the offense of which
defendant was convicted. The trial court convicted defendant of
aggravated criminal sexual abuse. However, the mittimus reflects
that defendant was convicted of aggravated criminal sexual assault.
Pursuant to Supreme Court Rule 615(b)(1) (134 Ill. 2d R.
615(b)(1)), we correct the mittimus so that it reflects defendant's
conviction for aggravated criminal sexual abuse.
For the foregoing reasons, we affirm defendant's conviction
for aggravated criminal sexual abuse and correct the mittimus.
Affirmed and mittimus corrected.
BUCKLEY, P.J., and O. FROSSARD, J., concur.