No. 2--07--0699 Filed: 10-24-08

______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court

OF ILLINOIS, ) of Lee County.

)

Plaintiff-Appellee, )

)

v. ) No. 07--CF--38

)

CHRISTOPHER E. LETCHER, ) Honorable

) John E. Payne,

Defendant-Appellant. ) Judge, Presiding.

______________________________________________________________________________

JUSTICE BURKE delivered the opinion of the court:

Defendant, Christopher E. Letcher, appeals his conviction of eight counts of predatory

criminal sexual assault of a child (720 ILCS 5/12--14.1(a)(1) (West 2006)). He contends that there

was insufficient evidence of the number of incidents and their dates to convict him on all counts.

We determine that there was sufficient evidence on six of the eight counts. Accordingly, we affirm

defendant's convictions on six counts and reverse his convictions on two counts.

I. BACKGROUND

On May 3, 2007, defendant was charged by information with 14 counts of predatory criminal

sexual assault of a child. On July 31, 2007, a bench trial was held, and defendant was found guilty

of eight counts. Six of those counts alleged that defendant knowingly committed an act of sexual

penetration against his daughter, K.J.L., by placing his penis in her vagina "on or about" the
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following dates: August 2005, January 2006, February 2006, April 2006, May 2006, and September

2006. One count alleged that defendant committed an act of sexual penetration by placing his penis

on K.J.L.'s mouth on or about December 2006, and another alleged that he placed his tongue on her

vagina, also on or about December 2006. Defendant did not object to the amount of specificity in

the information.

At trial, Brad Sibley, a police detective, testified that on January 21, 2007, he interviewed

defendant in connection with the allegations. Sibley told defendant that K.J.L. reported an

"inappropriate relationship" between defendant and herself. Defendant responded that he did not

have intercourse with K.J.L. but stated that, in approximately January 2006, he touched her breasts

and vaginal area over her clothing. Defendant stated that K.J.L. initiated the sexual contact.

Defendant also admitted to similar touching over K.J.L.'s clothing in February 2006. Defendant told

Sibley that on a third occasion he touched K.J.L.'s breasts under her clothing and rubbed her vaginal

area under her clothing, but over her underwear.

Defendant also admitted a fourth incident that occurred in approximately September 2006,

stating that K.J.L. kissed his penis for a few seconds. According to Sibley, defendant then said that

the fourth incident progressed from there and that he kissed or licked K.J.L.'s vaginal area. Sibley

told defendant that K.J.L. had disclosed something similar, but she had indicated that it occurred in

December 2006. Defendant conceded that that time frame was possible. When defendant was told

that K.J.L. also reported that they had intercourse, defendant adamantly denied it.

In order to establish a time frame for when the offenses occurred, K.J.L. and her mother

testified to K.J.L.'s age, where she lived, and the friends she played with. For example, in August

2005, the family was living in what was referred to as the "old house," and K.J.L. played with her
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friends Z. and M. In August 2006, the family moved to the "new house," where K.J.L. played with

her friend A.

K.J.L. testified that beginning in 2005, when she was six and living at the old house where

she played with Z. and M., defendant "used his private parts on me." She clarified that the term

"private parts" referred to his penis. K.J.L. stated that "he used them on my bottom and my vagina"

and that "he pushed them in and out." She later stated that defendant used his hands "in my vagina,

bottom, and breast." K.J.L. testified that defendant would remove her clothes and that he "captured"

her and "trapped" her on the bed when she tried to run away. The incidents took place in defendant's

bedroom when K.J.L.'s mother was not home. When asked how many times defendant did these

things, but without specifying penile penetration, K.J.L. responded, "too many times to remember"

and that it was "a lot" of times.

K.J.L. testified that after they moved to the new house, where she played with her friend A.,

defendant again touched her in ways she did not want to be touched and that he "used the same

technique he did at the old house." When asked to clarify what happened in the new house, she

stated that "[h]e used his penis on my bottom again, his penis on my vagina again, he used his hands

on my boobs again, my hands on my vagina again, and my hands on my butt again." When asked

how many times he did this, she answered, "too many times to remember."

When asked to remember the last time "he did this to you," K.J.L. said that it was two days

before Christmas and stated: "He used his penis on my butt--butt again, he used his penis on my

vagina again, he used his hands on my bottom again." K.J.L. stated that he also tried to put his penis

in her mouth about six times, that she shut her mouth tight, and that he put his penis on her lips.

K.J.L. was then asked if defendant ever placed his mouth anywhere on her body. She answered "yes"
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and stated that defendant put his mouth on "my butt, my vagina, and my boobs *** too many times

to remember."

After a break in the testimony, K.J.L. was asked to clarify how many times the events

concerning her "behind," "breasts," and "vagina" occurred. K.J.L. said that it was like watching Star

Wars "for the rest of your life and keep rewinding it *** and keep watching it *** [a]nd not doing

anything but watch it." After another break in the testimony, the following colloquy occurred

between the State and K.J.L.:

"Q. *** Why are you angry with [defendant]?

A. Because he touched me in unavailable places that he wasn't supposed to.

***

Q. And so you're mad that your father touched you in these ways?

A. Yes.

Q. But you wouldn't lie about this, would you?

A. No, I would never lie about it.

Q: Because it's important to tell the truth?

A. Yes.

Q. And when we're talking about that it happened so many times that you can't

remember, did it--it happened all--a lot, didn't it?

A. (Indicates affirmatively.)

Q. Can you even guess as to how many times it happened?

***

A. No.
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***

Q. But you can count up to five, right?

A. (Indicates affirmatively.)

Q. Yeah. You're in third grade so you should easily be able to count up to five. Did

it happen more than five times?

A. Yes."

The court found defendant not guilty on six counts that alleged that defendant placed his

finger inside K.J.L.'s vagina on various dates. The court then found him guilty on the remaining

eight counts. The court sentenced defendant to 20 years in prison on each count, with the sentences

to run consecutively. Defendant's motion to reconsider the sentence was denied. Defendant appeals.

II. ANALYSIS

Defendant contends that there was insufficient evidence to convict him on all eight counts.

He argues both that the evidence about the dates of the acts was too vague to support his convictions

and that the State failed to show that the number of acts he was convicted of occurred.

The State observes that defendant did not file a motion for a bill of particulars. He also did

not raise issues about the State's evidence in a posttrial motion. But defendant does not argue on

appeal that the charges were not detailed enough to allow him to formulate a defense, and it is well

established that a defendant may challenge the sufficiency of the evidence for the first time on

appeal. People v. Zizzo, 301 Ill. App. 3d 481, 486 (1998).

The standard of review on a challenge to the sufficiency of the evidence is whether, after

viewing the evidence in the light most favorable to the State, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt. Zizzo, 301 Ill. App. 3d at
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486. "Our task is not to retry the accused, and we will not substitute our judgment for that of the

trier of fact with respect to the witnesses' credibility, the weight to be given to the evidence, or the

reasonable inferences to be drawn from the evidence." Zizzo, 301 Ill. App. 3d at 486. "We will not

reverse a conviction unless the evidence is so unreasonable, improbable, or unsatisfactory as to

justify a reasonable doubt of the accused's guilt." Zizzo, 301 Ill. App. 3d at 486. Although a

different standard of review was applied to sex offense cases previously and in other districts, we

no longer require the State to demonstrate that the victim's testimony was clear and convincing or

substantially corroborated to prove guilt beyond a reasonable doubt. See In re A.J.H., 210 Ill. App.

3d 65, 70-71 (1991).

Section 12--14.1(a)(1) of the Criminal Code of 1961 provides:

"(a) The accused commits predatory criminal sexual assault of a child if:

(1) the accused was 17 years of age or over and commits an act of sexual

penetration with a victim who was under 13 years of age when the act was

committed[.]" 720 ILCS 5/12--14.1(a)(1) (West 2006).

The Code defines "sexual penetration" as:

"[A]ny contact, however slight, between the sex organ or anus of one person by an

object, the sex organ, mouth or anus of another person, or any intrusion, however slight, of

any part of the body of one person or of any animal or object into the sex organ or anus of

another person, including but not limited to cunnilingus, fellatio or anal penetration.

Evidence of emission of semen is not required to prove sexual penetration." 720 ILCS

5/12--12(f) (West 2006).
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Defendant first argues that the evidence was insufficient to convict himon all counts, because

the State did not show that the offenses occurred on the specific dates alleged. We disagree.

The date of the crime is not an essential element of the offense when the statute of limitations

is not questioned. See People v. Escobedo, 151 Ill. App. 3d 69, 85 (1986). In Escobedo, the

defendant was charged with two counts of indecent liberties with a child (Ill. Rev. Stat. 1983, ch. 38,

pars.11--4(a)(2), (a)(3)). A bill of particulars identified two specific dates and stated that the first

incident involved " 'oral copulation' " while the second was an act of " 'lewd fondling.' " Escobedo,

151 Ill. App. 3d at 74. At trial, the victim, K.S., was unable to state the exact dates of the incidents,

but she had previously said that there were four to seven incidents. She also placed the incidents in

the month alleged in the bill of particulars and gave a detailed account of the events. At times, the

victim's testimony about other items was contradictory or inconsistent. Escobedo, 151 Ill. App. 3d

at 75-76.

The First District applied the more stringent and no longer applicable standard of review,

requiring substantially corroborated clear and convincing evidence. Escobedo, 151 Ill. App. 3d at

81. Nevertheless, the court concluded that there was sufficient evidence to convict, noting that

discrepancies in the victim's testimony about other items or about the dates of the offenses did not

detract from the reasonableness of her statements regarding the defendant's indecent acts. Escobedo,

151 Ill. App 3d at 82. The court stated:

"For example, defendant points out that K.S. could not specify with certainty the

dates, or days of the week, of the offenses. We do not attach particular significance to her

inability to do so. During the cross-examination of K.S.'s father, defendant elicited the fact

that K.S. had testified at the preliminary hearing to being molested by defendant on four to
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seven occasions, including the two incidents with which defendant was charged. Because

of the apparent ongoing nature of the offenses, we believe that it is not unreasonable that the

minor complainant would not be able to pinpoint the exact dates of the two incidents forming

the basis of defendant's prosecution. The weight to be given to K.S.'s testimony in view of

her inability to state the dates of the offenses with precision was for the jury to determine."

Escobedo, 151 Ill. App. 3d at 82.

Thus, the court determined that the defendant was proved guilty beyond a reasonable doubt. See also

People v. Foley, 206 Ill. App. 3d 709, 715 (1990) ("The inability to remember exact dates and times

merely affects the weight to be given the testimony and, taken alone, does not create reasonable

doubt"); State v. Hayes, 81 Wash. App. 425, 432, 914 P.2d 788, 793 (1996) (the date is not a

material element of the crime, and language "on or about" is sufficient to admit proof of the act at

any time within the statute of limitations, so long as there is no alibi defense).

Here, the statute of limitations is not at issue, and defendant did not assert an alibi defense.

Thus, the lack of testimony about the specific dates of the offenses does not entitle him to have any

of his convictions reversed. However, the question remains whether K.J.L.'s testimony that various

incidents happened "too many times to remember" and "more than five times," without pointing to

a specific number of incidents, was sufficient to convict defendant on all counts.

There is very little case law in Illinois addressing when generic evidence about the number

of offenses in a sexual abuse case may be sufficient to prove guilt beyond a reasonable doubt on all

counts. Both parties rely on Escobedo, but there the victim gave a clear number of incidents that

exceeded the number of counts charged, and she placed the incidents in the approximate time frame

of the dates provided in the charges. Here, K.J.L.'s testimony was not so specific. As one court in
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another jurisdiction explained, the issue raises several competing concerns when there are allegedly

repeated instances of misconduct by a resident of the victim's home:

" 'The so-called "resident child molester" is a person who lives with his victim or has

continuous access to him or her. In such cases, the victim typically testifies to

repeated acts of molestation occurring over a substantial period of time but, lacking

any meaningful point of reference, is unable to furnish many specific details, dates

or distinguishing characteristics as to individual acts or assaults.' [Citation.]

The difficulty presented in such cases is clear. On the one hand, prosecutions based on such

nonspecific or generic testimony are claimed to deprive the defendant of due process by

preventing him from effectively defending against such charges, and by precluding a

unanimous jury verdict as to each count in the indictment. [Citation.] On the other hand,

'testimony describing a series of essentiallyindistinguishable acts of molestation is frequently

the only testimony forthcoming from the victim. To hold that such testimony, however

credible and substantial, is inadequate to support molestation charges would anomalously

favor the offender who subjects his victim to repeated or continuous assaults.' " United

States v. Hawpetoss, 388 F. Supp. 2d 952, 960 (E.D. Wis. 2005), quoting People v. Jones,

51 Cal. 3d 294, 300, 792 P.2d 643, 645, 270 Cal. Rptr. 611, 613 (1990).

In Jones, a commonly cited case on the issue, the defendant was convicted of six counts of

lewd conduct for incidents with one of his adopted children. The victim testified that the defendant

molested him about one month after he moved in and once or twice each month during the two-year

period that he lived with the defendant. He stated that incidents of oral copulation happened in five

different locations, but he was unable to state specific dates or further details. He also stated that he
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was molested in a similar fashion four to six times during camping trips and once over a Memorial

Day weekend. Finally, he stated that he was molested 8 or 10 times in the bathroom or shower.

Jones, 51 Cal. 3d at 302, 792 P.2d at 646-47, 270 Cal. Rptr. at 614-15. The California Court of

Appeal held that there was insufficient evidence to support the six convictions, and the California

Supreme Court reversed. Jones, 51 Cal. 3d at 322, 792 P.2d at 659, 270 Cal. Rptr. at 627.

The court stated:

"It must be remembered that even generic testimony (e.g., an act of intercourse 'once a month

for three years') outlines a series of specific, albeit undifferentiated, incidents each of which

amounts to a separate offense, and each of which could support a separate criminal sanction.

(Of course, prosecutors should exercise discretion in limiting the number of separate counts

charged. No valid purpose would be served by charging hundreds or thousands of separate

counts of molestation, when even one count may result in a substantial punishment.)

* * *

*** [I]n determining the sufficiency of generic testimony, we must focus on factors

other than the youth of the victim/witness. Does the victim's failure to specify precise date,

time, place or circumstance render generic testimony insufficient? Clearly not. As many of

the cases make clear, the particular details surrounding a child molestation charge are not

elements of the offense and are unnecessary to sustain a conviction. [Citations.]

The victim, of course, must describe the kind of act or acts committed with sufficient

specificity, both to assure that unlawful conduct indeed has occurred and to differentiate

between the various types of proscribed conduct (e.g., lewd conduct, intercourse, oral

copulation or sodomy). Moreover, the victim must describe the number of acts committed
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with sufficient certainty to support each of the counts alleged in the information or

indictment (e.g., 'twice a month' or 'every time we went camping'). Finally, the victim must

be able to describe the general time period in which these acts occurred (e.g., 'the summer

before my fourth grade,' or 'during each Sunday morning after he came to live with us') to

assure the acts were committed within the applicable limitation period. Additional details

regarding the time, place or circumstance of the various assaults may assist in assessing the

credibility or substantiality of the victim's testimony, but are not essential to sustain a

conviction." (Emphasis in original.) Jones, 51 Cal. 3d at 314-16, 792 P.2d at 654-56, 270

Cal. Rptr. at 622-24.

Because the victim testified about frequent molestations at five different locations during the time

period specified in the charges, and because there was no statute of limitations issue, the court

determined that the evidence was sufficient to convict.

Similarly, in Rose v. State, 123 Nev. 24, 163 P.3d 408 (2007), the defendant was convicted

of 20 counts of sexual assault on a minor. The victim, who spent nearly every weekend at the

defendant's home for several years, testified that the incidents happened every time she spent the

night at the defendant's home and that the defendant touched her vagina with his finger more than

10 times and touched it with his tongue more than 10 times. The court affirmed, holding that the

victim did not have to specify exact numbers as long as there were " 'some reliable indicia that the

number of charged acts actually occurred.' " Rose, 123 Nev. at ___, 163 P.3d at 414, quoting

LaPierre v. State, 108 Nev. 528, 531, 836 P.2d 56, 58 (1992). The court distinguished the case from

one in which the evidence was insufficient because the victim once stated that incidents happened

more than 10 times, but later stated that she was not sure how many times they occurred or why she
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previously stated more than 10 times. Rose, 123 Nev. at ___, 163 P.3d at 414-15, citing LaPierre,

108 Nev. at 530-31, 836 P.2d at 57; see also Hayes, 81 Wash. App. at 437-38, 914 P.2d at 796

(applying Jones and finding sufficient evidence); Hawpetoss, 388 F. Supp. 2d at 960, 963 (victim

testimony that misconduct occurred as often as three times per week over a five-year period

sufficient to convict on four counts); cf. People v. Smith, 205 Mich. App. 69, 72-73, 517 N.W.2d

255, 257 (1994) (victim's testimony referring to " 'pictures' " in the plural, but describing only one

occasion during which photographs were taken, insufficient to convict on four counts of child sexual

abuse).

Here, K.J.L. testified about the types of abuse, i.e., penile penetration, oral penetration, digital

penetration, and fondling; and she provided details about the abuse, such as where it occurred and

what happened when she said "no" or tried to run away. She also provided a general time frame for

the abuse by describing where she was living when each incident occurred. But K.J.L. did not testify

that each type of abuse occurred a specific number of times in any given period so as to show that

more incidents occurred than were charged, a distinguishing factor in Escobedo, Jones, and Rose.

Instead, K.J.L.'s testimony that the offenses happened too many times to remember was too generic

to show a specific number of offenses. This, however, does not mean that there was insufficient

evidence on all of the counts. Our review of the record reveals sufficient evidence to support six of

the eight counts.

In regard to the two counts alleging incidents of oral penetration in December 2006, K.J.L.

testified that defendant placed his penis on her mouth and placed his tongue on her vagina. Sibley

also testified about defendant's admission to those counts. Thus, there was evidence specific to each

of those counts and sufficient evidence to convict defendant on those counts.
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The remaining six counts, alleging penile penetration, are more problematic. We observe

that the counts alleged only that defendant placed his penis in K.J.L.'s vagina, but the elements of

the offense are concerned only with "penetration" and do not draw a distinction between anal and

vaginal penetration. See 720 ILCS 5/12--12(f) (West 2006). Thus, we consider specific evidence

of either type of penetration sufficient to support the counts. See People v. Nathan, 282 Ill. App. 3d

608, 611 (1996) (when the essential elements of an offense are properly charged but the manner in

which the offense is committed is incorrectly alleged, the error is merely formal). (There was also

testimony specific to counts of digital penetration, but, because the trial court specifically found

defendant not guilty on those counts, we consider only the evidence as it relates to the counts

alleging penile penetration. See generally People v. Pender, 154 Ill. App. 3d 978, 980-81 (1987).)

We determine that four counts of penile penetration were supported by sufficient evidence.

K.J.L. testified about two specific incidents of penile penetration that occurred at the old

house, stating that defendant used his private parts on her "bottom" and her vagina and pushed them

in and out. K.J.L.'s testimony indicates that she was referring to her anus when she used the term

"bottom." After that, she testified generally that sexual abuse happened "too many times to

remember" at the old house, but, because she did not specifically state whether she was referring to

penile penetration or other forms of sexual contact, we cannot say that there was sufficient evidence

of more than two counts of penile penetration occurring at the old house.

In regard to the new house, K.J.L. specifically testified that defendant again used his private

parts on her bottom and her vagina in the same manner that he did at the old house, thus providing

sufficient evidence of two more counts. But like the testimony about incidents at the old house, the

testimony that defendant did those acts and other acts not involving penile penetration "too many
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times to remember" was insufficient to show the number of additional, if any, instances of penile

penetration at the new house.

Although K.J.L. also made reference to instances of penile penetration in December 2006,

the record is not sufficiently clear to determine that these were not the same events that she testified

about when she stated generally that defendant used his private parts on her bottom and vagina at

the new house. We recognize that one could infer that these were two additional incidents of

misconduct, but ultimately we conclude that the evidence was not specific enough to support that

inference beyond a reasonable doubt.

The State argues that K.J.L.'s testimony that incidents happened more than five times was

sufficient to prove six counts of penile penetration. But the record does not show that K.J.L. was

referring solely to those counts when the question was asked. Before K.J.L. was asked if incidents

occurred more than five times, she made a general reference to "touching" in "unavailable places,"

including her breasts, and there were no specific questions about penetration. Thus, we cannot say

that K.J.L.'s testimony that incidents occurred more than five times was sufficient to prove the six

specific counts of penile penetration. Accordingly, there was insufficient evidence to convict

defendant on the remaining two counts.

III. CONCLUSION

There was sufficient evidence to convict defendant on six of the eight counts. Accordingly,

we affirm defendant's convictions and sentences on six counts (the two alleging oral penetration and

four alleging penile penetration), and we reverse his convictions on the remaining two counts.

Affirmed in part and reversed in part.

McLAREN and BOWMAN, JJ., concur.