Find Laws Find Lawyers Free Legal Forms USA State Laws
Laws-info.com » Cases » Illinois » 4th District Appellate » 2005 » People v. Hestand
People v. Hestand
State: Illinois
Court: 4th District Appellate
Docket No: 4-03-0801 Rel
Case Date: 11/04/2005

NO. 4-03-0801

IN THE APPELLATE COURT

 
OF ILLINOIS

 
FOURTH DISTRICT



THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee,

v.

KENNETH L. HESTAND,

Defendant-Appellant.

)
)
)
)
)
)
)
)
)
Appeal from
Circuit Court of
Cumberland County

No. 01CF34

Honorable
David W. Lewis,
Judge Presiding.


 

JUSTICE TURNER delivered the opinion of the court:

In May 2001, the State charged defendant, Kenneth L.Hestand, with two counts of criminal sexual assault and twocounts of aggravated criminal sexual abuse. In July 2003, a juryfound defendant guilty on three counts. In August 2003, thetrial court imposed a 15-year prison sentence on the criminal-sexual-assault conviction and concurrent 7-year terms on theaggravated-criminal-sexual-abuse convictions.

On appeal, defendant argues (1) his aggravated-criminal-sexual-abuse conviction for fondling the victim's vaginamust be vacated pursuant to the one-act, one-crime rule, (2) hewas denied a fair trial when a witness read defendant's statementto police to the jury, and (3) the trial court improperly considered multiple victim-impact statements and imposed an excessivesentence. We affirm in part, vacate in part, and remand withdirections.

I. BACKGROUND

In May 2001, the State charged defendant with twocounts of criminal sexual assault (720 ILCS 5/12-13(a)(1), (a)(2)(West 2000)), alleging he committed an act of sexual penetrationwith T.H. in that by the use of force he placed his penis in hervagina (count I) and knowing that T.H. was unable to give knowingconsent he committed an act of sexual penetration by placing hispenis in her vagina (count II). The State also charged defendantwith two counts of aggravated criminal sexual abuse (720 ILCS5/12-16(c)(1)(ii) (West 2000)), alleging defendant, over the ageof 17, committed an act of sexual conduct with T.H., at least 13years of age but under 17 years of age, in that he knowingly andby the use of force fondled T.H.'s vagina for the purpose of hissexual arousal (count III) and knowingly and by the use of forcefondled T.H.'s breast for the purpose of his sexual arousal(count IV). Defendant pleaded not guilty.

In July 2003, defendant's jury trial commenced. T.H.testified she knew defendant through Delores Marrow, the sisterof her guardian's husband. On May 12, 2001, T.H. was asleep onthe couch when defendant knocked on the door and asked forMarrow. Defendant then asked about the best place to eat, andT.H. made a suggestion but declined an invitation to go with him. After defendant left, T.H. went back to sleep. Later, T.H.walked to a festival in Greenup. Defendant drove up and askedT.H. where the best place to go fishing was. T.H. tried to givehim directions and later told him she would show him if he boughther a pack of cigarettes. T.H. entered the van and they headedwest. Defendant had her "duck" whenever he passed certainapartments, but T.H. did not find that unusual. They eventuallyended up "underneath the bridge" and both exited the van. Afterpointing out a fishing spot, defendant told T.H. she was beautiful and that when she turned 18 he would take her away and marryher. T.H. was shocked and turned around to walk back to the van. Defendant then grabbed her arm and pulled her toward him. Hethen started hugging and kissing her. T.H. pulled away andstarted running. She tried to run up the hill but changeddirections and tried to go to the van.

T.H. testified defendant unlocked the van and she gotin the front seat. Defendant started to fondle her breasts. Hethen pulled down her pants and underwear. Defendant undid hispants and said, "'See what you did?'" T.H. glanced down andnoticed "his penis was hard." Defendant told her to touch hispenis, but she refused. He then grabbed her hand, put it on hispenis, and "started moving [her] hand back and forth." She thenjerked her hand away. Thereafter, defendant placed his penis inher vagina "for a couple of minutes." T.H. attempted to fightand tried to pull up her pants. Defendant kept pulling her pantsdown and said she would never see her family again. T.H. toldhim she was going to tell, and he said, "'Oh, well'" and told hernot to shave her vagina. T.H. stated she never saw defendantejaculate and he had trouble maintaining an erection. Thereafter, defendant drove to Dairy Queen to eat and to the gas stationfor cigarettes. Defendant gave her one pack and said for thesecond one she had to give him a "blow job." T.H. refused, anddefendant dropped her off at the municipal building. T.H. couldnot find her friends and started looking for a police officer.

Special Agent Al Duncan of the Illinois State Policetestified he interviewed T.H. and defendant. Agent Duncan statedT.H. was "upset," "crying," and "nervous." After T.H. stateddefendant grabbed her arm, Agent Duncan noticed a bruise on herinside right biceps area. Defendant told him he took T.H. toDairy Queen for something to eat and then dropped her off nearthe police station in Greenup. Defendant denied being at thebridge area. When Duncan told defendant tire tracks matching hisvan had been found near the area, defendant said he may have beenout there the previous week. After Duncan said it had rainedsince then, defendant said he may have been out there earlierthat day but he could not remember for sure. Defendant deniedhaving sex with T.H. and stated it was difficult for him toachieve an erection because he had prostate problems. Duncantold him T.H. was at the hospital and an analysis could determineif they engaged in sex. Duncan testified he misinformed defendant as to the tire tracks, the rain, and the analysis at thehospital "as it was an interrogation technique to try to elicittruthful information from a person."

Defendant wanted to know whether T.H. stated the sexwas consensual, and Duncan said she claimed defendant raped her. Defendant then stated the sex was consensual. Defendant toldDuncan he was unable to maintain an erection, he did not get anysatisfaction out of it, and "he did the best he could in hissexual performance but that he could not get, in his words, a[']hard on['] and did not ejaculate." Defendant then agreed towrite a voluntary statement. Duncan read the statement to thejury:

"I, K.L. Hestand, had sex with [T.H.].And she started it. She wanted it. Askedfor it. So we went to a place she knowed[sic], and it was on a river. We had sex inthe passenger seat of the vehicle. She sayI'm no good because I could not get [']hardon.['] And I did try the best I could. Idid not get any satisfaction out of it."

Bill Cline, the Greenup chief of police, testified hefound T.H. sitting on the sidewalk crying. He verified her ageas being 16 and later took her to find the suspect and hisvehicle. Cline then asked defendant, age 65, to come down to thepolice department to clear up the alleged accusation.

Dolores Marrow testified as a defense witness. Shestated she had an intimate relationship with defendant. In May2001, defendant had been treated for a blood clot in his leg. Marrow testified defendant was impotent "sometimes but notalways."

Defendant testified he would often take T.H. to thestore to buy food and cigarettes because her family did not haveany money. On May 12, 2001, defendant went to T.H.'s house tosee if Marrow was there. Later, T.H. came down to Marrow'strailer and asked defendant to buy her food and drop her off athome. Defendant bought her a pack of cigarettes and dropped heroff at police headquarters. Later, defendant went to the policestation after being contacted by the police. Defendant testifiedhe never told Agent Duncan he had sex with T.H. although "shewould try to hit on" him. Defendant stated he had prostateproblems and he had not "had sex in a long time on account ofit." Defendant denied having sex with T.H. He also stated hedid not fondle her vagina or breasts because she "looks nasty"and he did not like "nasty women." Defendant testified hiswritten statement was untrue and he wrote it because Agent Duncansaid that would "'be the end of it.'" On cross-examination,defendant stated he confessed to something he did not do becausehe "was sick," he did not have his medicine, and the policeofficer was lying to him.

After redirect examination, the State informed the jurythat defendant had been convicted of child molestation in Indianain 1981. Following closing arguments, the jury found defendantguilty of criminal sexual assault (count I) and aggravatedcriminal sexual abuse (counts III and IV).

In August 2003, the trial court conducted defendant'ssentencing hearing. The court considered the evidence in aggravation and mitigation and gave the appropriate weight to theunsworn victim-impact statements from the victim and her fostermother. The court sentenced defendant to 15 years in prison oncount I and concurrent 7-year terms on counts III and IV. Thisappeal followed.

II. ANALYSIS

A. One-Act, One-Crime Rule

Defendant argues his conviction for aggravated criminalsexual abuse (count III) must be vacated under the one-act, one-crime rule because it was based on the same physical act as hiscriminal-sexual-assault conviction. The State argues two offenses were carved from two separate acts. We agree with theState.

Initially, we note defendant did not raise this issuein a posttrial motion. Thus, defendant has forfeited this issueon appeal. People v. Smith, 183 Ill. 2d 425, 429-30, 701 N.E.2d1097, 1099 (1998). However, even though defendant has forfeitedhis claim of error, "plain errors affecting substantial rightsmay be reviewed on appeal." Smith, 183 Ill. 2d at 430, 701N.E.2d at 1099. As it is a denial of due process to convict adefendant on a charge without evidence to support that conviction(Gregory v. City of Chicago, 394 U.S. 111, 112, 22 L. Ed. 2d 134,136, 89 S. Ct. 946, 947 (1969), citing Garner v. Louisiana, 368U.S. 157, 164, 7 L. Ed. 2d 207, 214, 82 S. Ct. 248, 251-52(1961)), we will review defendant's claim of error.

Defendant's argument relies primarily on the one-act,one-crime jurisprudence set forth by our supreme court in Peoplev. King, 66 Ill. 2d 551, 363 N.E.2d 838 (1977), and People v.Crespo, 203 Ill. 2d 335, 788 N.E.2d 1117 (2001). In reviewingthe one-act, one-crime rule, this court has stated, in part, asfollows:

"[T]he King doctrine provides that adefendant's conduct cannot result in multipleconvictions if the convictions are based onprecisely the same physical act and any ofthe offenses are included offenses." Peoplev. White, 311 Ill. App. 3d 374, 384, 724N.E.2d 572, 580 (2000), citing King, 66 Ill.2d at 566, 363 N.E.2d at 844.

In the case sub judice, defendant argues his convictions in counts I and III were based on the single act of penetrating T.H.'s vagina. In Crespo, 203 Ill. 2d at 342, 788 N.E.2dat 1121, the supreme court examined the charging instruments andthe way the State presented the case in closing arguments. Here,the charging instruments differentiated the offenses charged. Count I charged defendant with criminal sexual assault, alleginghe committed an act of sexual penetration by placing his penis inT.H.'s vagina. Count III charged defendant with aggravatedcriminal sexual abuse, alleging he committed an act of sexualconduct by fondling T.H.'s vagina for the purpose of his sexualarousal. Further, during closing arguments, the State argueddefendant committed an act of sexual penetration with his penisand touched her vagina. Penetration and fondling are two separate acts. Thus, defendant has not set forth any error of theone-act, one-crime rule under King and Crespo.

In his reply brief, defendant agrees penetration andfondling are two separate acts. However, he now raises theargument the State failed to present evidence proving he fondledT.H.'s vagina, thereby requiring reversal of his conviction foraggravated criminal sexual abuse. With this argument, we agree.

When reviewing a challenge to the sufficiency of theevidence in a criminal case, the relevant inquiry is whether,when viewing the evidence in the light most favorable to theprosecution, any rational trier of fact could have found theessential elements of the crime beyond a reasonable doubt. People v. Pollock, 202 Ill. 2d 189, 217, 780 N.E.2d 669, 685(2002). The trier of fact has the responsibility to determinethe credibility of witnesses and the weight given to theirtestimony, to resolve conflicts in the evidence, and to drawreasonable inferences from that evidence. People v. Ortiz, 196Ill. 2d 236, 259, 752 N.E.2d 410, 425 (2001). A court of reviewwill not overturn the verdict of the fact finder "unless theevidence is so unreasonable, improbable[,] or unsatisfactory thatit raises a reasonable doubt of defendant's guilt." People v.Evans, 209 Ill. 2d 194, 209, 808 N.E.2d 939, 947 (2004).

In this case, T.H. testified defendant fondled herbreasts when they were in the van. He then pulled down her pantsand underwear. Defendant undid his pants and put T.H.'s hand onhis penis. After T.H. "jerked" her hand away, defendant penetrated her vagina with his penis. T.H. attempted to fight andpull up her pants, but defendant kept pulling them down. Noevidence was presented that defendant used his hand in fondlingT.H.'s vagina. During closing statements, the State argued"obviously if [defendant] was *** committing an act of sexualpenetration, he was also touching her there in the vaginalregion." On appeal, the State contends defendant fondled T.H.'svagina when he removed her clothing and penetrated her vaginawith his penis.

We find the State has failed to show defendant committed an act of sexual conduct by fondling T.H.'s vagina. T.H.'stestimony that defendant removed her pants and underwear did notindicate he touched or fondled her vagina. No testimony waselicited that defendant's hands came near T.H.'s vaginal region. Further, the evidence indicating defendant's penis came intocontact with T.H.'s vagina established an act of sexual penetration. Such evidence did not establish an act of fondling bydefendant. As the evidence failed to prove defendant guiltybeyond a reasonable doubt of count III, defendant's convictionfor aggravated criminal sexual abuse must be vacated.

B. Defendant's Police Statement

Defendant argues he was denied a fair trial when AgentDuncan read the entirety of defendant's statement to police tothe jury. We disagree.

Our supreme court has held that for an issue to bepreserved for review on appeal, a defendant must offer an objection at trial and include that issue in a written posttrialmotion. People v. Breedlove, 213 Ill. 2d 509, 517, 821 N.E.2d1176, 1181 (2004); see also People v. Durgan, 346 Ill. App. 3d1121, 1137, 806 N.E.2d 1233, 1245 (2004) (the defendant's failureto raise a timely objection at trial and in a posttrial motionforfeits issue on appeal). In this case, defendant did not raisethe issue regarding the reading of his police statement in aposttrial motion. Defendant has therefore forfeited this issueon appeal unless plain error has occurred. "The plain[-]errorrule allows a reviewing court to consider a trial error notproperly preserved when '(1) the evidence in a criminal case isclosely balanced or (2) where the error is so fundamental and ofsuch magnitude that the accused was denied a right to a fairtrial.'" People v. Harvey, 211 Ill. 2d 368, 387, 813 N.E.2d 181,193 (2004), quoting People v. Byron, 164 Ill. 2d 279, 293, 647N.E.2d 946, 953 (1995). Here, the evidence was not closelybalanced, and the admission of the evidence in question did notdeny defendant fundamental fairness.

Even if the plain-error rule did apply, we would findno error on the merits. The case relied upon by defendant,People v. Ammons, 251 Ill. App. 3d 345, 622 N.E.2d 58 (1993), isreadily distinguishable. In that case, the defendant argued forreversal of his first-degree-murder conviction because the Statereplayed an audiotape of his statement to police during rebuttalclosing argument. Ammons, 251 Ill. App. 3d at 346, 622 N.E.2d at59. The tape had been played to the jury during a detective'stestimony, and the defendant's testimony was similar to thestatement he gave to police. Ammons, 251 Ill. App. 3d at 347,622 N.E.2d at 59. The defendant objected to replaying the tapedstatement during rebuttal and claimed on appeal it overemphasizedthe State's critical piece of evidence. Ammons, 251 Ill. App. 3dat 347, 622 N.E.2d at 59.

On appeal, the Third District noted reading from thetrial transcript during closing arguments is improper. Ammons,251 Ill. App. 3d at 347, 622 N.E.2d at 60. In reversing thedefendant's conviction, the appellate court found he had beenseverely prejudiced because allowing the replay of his tapedstatement during rebuttal "dramatically overemphasized itscredibility." Ammons, 251 Ill. App. 3d at 347, 622 N.E.2d at 60.

In this case, the State did not attempt to introduceany tapes of defendant's statements to the police. No tape wasplayed to the jury nor was one played during closing arguments. Instead, Agent Duncan read defendant's one-page, handwrittenstatement to the jury. Such testimony was necessary consideringdefendant's nearly illegible handwriting. Further, Duncan'sreading of the statement did not overemphasize the evidence ordeprive defendant of a fair trial. Thus, we find no error inDuncan's testimony.

C. Defendant's Sentence

Defendant argues his sentence was excessive in light ofhis age and medical condition and the trial court's improperconsideration of multiple victim-impact statements. We disagree.

Section 6 of the Rights of Crime Victims and WitnessesAct (Act) (725 ILCS 120/6 (West 2000)) provides the victims ofviolent crimes with the right to present a victim-impact statement. An offense involving sexual conduct or sexual penetrationconstitutes a violent crime. 725 ILCS 120/3(c) (West 2000). InPeople v. Richardson, 196 Ill. 2d 225, 229, 751 N.E.2d 1104, 1107(2001), the supreme court found the Act allowed for the presentation of only one victim-impact statement at sentencing. We notethe statute has since been amended (Pub. Act 92-412,

Illinois Law

Illinois State Laws
Illinois Tax
Illinois Court
Illinois Labor Laws
    > Minimum Wage in Illinois
Illinois Agencies
    > Illinois DMV

Comments

Tips