People v. Berry

FOURT, J.

—Donald Paul Berry appeals from a judgment of conviction, pursuant to a jury verdict, of three counts of committing lewd and lascivious acts upon the body of a child (Pen. Code, § 288). Appellant was denied probation and sentenced to state prison on each count.

The record reffects the testimony of two little girls as prosecution witnesses. Carrie Jorgenson, a six-year-old first grade pupil, was frequently taken to the Berry home by her mother during 1964 and early 1965 to be cared for by appellant’s wife, Millie. Customarily Millie cared for several children, in addition to her own family, while their mothers went to work.

Carrie testified that when she was left at the Berry home on Sundays, Millie took the older children to Sunday school and Carrie was left alone with “Don” and the younger children. Frequently on these Sunday mornings appellant would take Carrie into the bathroom or the Berry children’s bedroom. Carrie and he would remove their clothing, and appellant would have Carrie lie on a rug which he placed upon the floor. Then appellant would kneel over her and insert his “thing” and “stuff would come out.” On one occasion he placed his ‘‘thing” in her mouth and at times she also played with his “thing.” She did not disclose these events to anyone for a

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long while, although Don’s "thing” hurt her, because he asked her to keep it a secret.

Janene Marie Forester, another child who had been cared for in the Berry home while her mother worked, was nine years old. She testified that she spent June 10 and 11, 1965, at appellant’s house and on one of those days, while she and appellant were alone in the living room, he pulled up her skirt, knelt down and kissed her on the outside of her panties near the elastic band. On another occasion, appellant asked her to get him a beer from the garage, then followed her and there knelt down and kissed her on the mouth, inserting his tongue. He also rubbed his private parts against her. Although he told her to "keep it a secret,” she told her mother about these events a couple of days later.

Carrie’s mother did not learn about appellant’s conduct with her daughter until some time later. Several times during each month from April through July of 1964 Carrie complained of inflammation in the vaginal area and her mother frequently examined her or applied medication. The inflammation would disappear upon medication only to recur, and her mother was unable to determine the cause. Finally, on the night of June 4, 1965, Carrie while taking a bath admitted to her mother that appellant had engaged in sexual conduct with her. Coincidentally, and upon reminiscence, Carrie’s mother recognized that Carrie "hurt” every Sunday night when she came home from appellant’s home. Carrie’s mother recalled specifically that she had left her daughter at the Berry home only one Sunday during February of 1965 and on that day, February 7,1965, Carrie had been inflamed and hurting.