People v. Kelly

JUSTICE HEIPLE, concurring in part and dissenting in part:

The defendant, Wayne Thomas Kelly, was charged with two counts of aggravated criminal sexual assault against five-year-old Amy Sims and her seven-year-old cousin, Sara Sims. Following a jury trial, the defendant was convicted of one count of aggravated criminal sexual assault against Sara and was convicted of aggravated criminal sexual abuse against both girls. I agree with the majority that the jury’s verdict finding the defendant guilty of aggravated sexual abuse of both victims should be upheld. I do not agree, however, with that portion of the majority opinion which found that there was insufficient proof of penetration to support a conviction for the offense of aggravated criminal sexual assault.

Sexual penetration is statutorily defined as “any intrusion, however slight *** of any *** object into the sex organ or anus of another.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 12(f).) The question of whether penetration has occurred is one for the jury to determine after examining the evidence presented at trial. (People v. Morgan (1986), 149 Ill. App. 3d 733 .) A reviewing court should not set aside a guilty verdict unless the evidence is so palpably contrary to the finding or so unreasonable, improbable, or unsatisfactory as to leave a reasonable doubt about the accused’s guilt. People v. Yates (1983), 98 Ill. 2d 502 .

In the instant case, Sharon Sims, Sara’s aunt, testified that when she was giving Sara a bath she noticed that Sara’s vaginal area was very red and raw. Sharon further testified that when she asked Sara how the defendant had hurt her, Sara responded “he had poked her with his finger too.” Sara, with the aid of anatomically correct dolls, testified at trial that the defendant had touched her “naughty place” while she was lying down with her panties off and that it felt “bad.” Dr. Ozaki then testified that the evidence supported a finding that Sara’s vagina had been penetrated.

This testimony reveals that the jury verdict cannot be considered unreasonable or improbable. The jury could have concluded that if the defendant had “poked” Sara’s vaginal area with his finger until it hurt that this would constitute penetration under the statute.

Nevertheless, the majority maintains that the testimony of Sharon was improper to the extent that it added the element of penetration which was not specifically testified to by Sara. Merely because Sara did not recite the magic words that defendant placed his fingers “into” her vagina, however, is no reason to discount Sharon’s testimony. Section 115 — 10 (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 10) provides in relevant part:

“(a) In a prosecution for a sexual act perpetrated upon a child under the age of 13, 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: * * *

(2) testimony of an out of court statement made by such child describing any complaint of such act or matter of detail pertaining to any act which is an element of an offense which is the subject of a prosecution for a sexual act perpetrated upon a child.” (Emphasis added.)

The statute simply does not state that the child must first specifically testify in court to the element of penetration before Sharon can be allowed to testify to Sara’s out-of-court statement which referred to the defendant “poking” Sara’s vagina. Sara’s statement to Sharon described a detail of the defendant’s sexual misconduct which related to the element of penetration. Thus, Sharon’s testimony was proper under the statute. Consequently, I would uphold the jury verdict in its entirety and affirm the defendant’s conviction for the offense of aggravated criminal sexual assault.