People v. Ortiz

• Decision Date: 18 May 1987
• Docket Number: No. 2-86-0166,2-86-0166
• Parties: , 108 Ill.Dec. 329 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Matias ORTIZ, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 490

508 N.E.2d 490

155 Ill.App.3d 786, 108 Ill.Dec. 329

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Matias ORTIZ, Defendant-Appellant.

No. 2-86-0166.

Appellate Court of Illinois,

Second District.

May 18, 1987.

Rehearing Denied June 16, 1987.

G. Joseph Weller, Paul J. Glaser, Office of State Appellate Defender, Elgin, for defendant-appellant.

James E. Ryan, States Atty., Wheaton, William L. Browers, Cynthia N. Schneider, States Attys., Appellate Service Com'n, Elgin, for plaintiff-appellee.

Justice NASH delivered the opinion of the court:

After a jury trial defendant, Matias Ortiz, was convicted of aggravated criminal sexual assault (Ill.Rev.Stat.1985, ch. 38, par. 12-14(b)(1)) and sentenced to a term of 25 years imprisonment. He appeals, contending (1) the aggravated criminal sexual assault statute is unconstitutional; (2) the jury was not properly instructed; (3) the admission of evidence relating to defendant's prior conviction was error; and (4) that he was denied effective assistance of counsel in trial.

On August 30, 1985, Jenna, who was 8 1/2 years old, stayed overnight at the home of her friends, Tina and Trisha Van Hoose, and slept on a mattress on the floor of a bedroom. Defendant, who was Trisha's father and the fiancee of Joyce Van Hoose, entered the bedroom at 5 a.m. and, according to Jenna, molested her.

Defendant was subsequently charged with two counts of aggravated criminal sexual assault and, at trial, Jenna testified that he came into the bedroom and knelt next to her mattress, then lifted her nightgown and hurt her by inserting his finger inside her vagina and anus. She kicked at him, and defendant left the room after which Jenna went to the living room where Joyce Van Hoose (Tina and Trish's mother) was sleeping and informed her of the incident. Jenna stated no one had ever touched her in that way before. On cross-examination, she testified that defendant did not hold her down on the mattress and no blood or other fluid emerged after the incident. Jenna did not tell her mother about the attack until several hours after she returned home the next day, and her mother did not examine her.

Janice Cagle, Jenna's mother, testified that after she learned of the incident, she called a social worker, Linda Sutton, who took Jenna to the police station. Cagle stated that, to her knowledge, Jenna's hymen had not been broken prior to this incident.

Dr. Paul Cole, an emergency room physician at Central DuPage Hospital, examined Jenna several days later on September 4, 1985. He testified that her hymen had a small tear which was large enough to admit the tip of a finger. Although such tears always result in bleeding, there was no evidence of bruises, scratches or bleeding at that time. Dr. Cole stated that scratches and bruises may fully heal within four or five days. He further testified that the hymen of an 8-year-old girl has more blood flowing through it than that of an older woman and there was no evidence of blood in Jenna's urinary tract, which was not unusual if the tear had occurred four or five days prior to his examination.

David Day, an officer with the Carol Stream police department, testified that defendant told him that he was intoxicated and had suffered a blackout on the evening of August 30, 1985. On cross examination by defendant's counsel, Day stated he had been a prison guard and was aware that defendant had recently been in prison. When defendant denied sexually assaulting Jenna, saying he "wasn't that kind of person," Day told defendant that he had information that defendant had pleaded guilty in a similar situation five years before to charges involving his daughter. On redirect examination by the State, Day testified that defendant had engaged in an incestuous relationship with his daughter for four years, until she was 13 years old, and that in September 1980, defendant's daughter and estranged wife reported him to the police, and defendant was arrested for aggravated incest. Defendant was convicted and was subsequently paroled from the State penitentiary in January 1985. On further examination by defendant's counsel, officer Day testified that, according to the police reports, defendant said he had pleaded guilty at that time so that his family would not have to go through a trial.

Defendant testified in trial on his own behalf that he was intoxicated on August 30, 1985, and went to the apartment of Joyce Van Hoose, his fiancee, at approximately 1:30 a.m. Later that morning, he awoke to use the bathroom and mistakenly opened the door to the girls' bedroom. He walked in, stumbled over the mattress on the floor, and fell on top of Jenna. He stated Jenna seemed scared, and he apologized to her and left the room. He denied inserting his finger into her vagina or anus. Defendant further testified that on September 5, 1985, Detective Day had come by to speak with him and the officer appeared to be frightened of defendant and hated him. Defendant told Officer Day that Jenna's allegations were lies, but Day claimed that a doctor had found scratches and other evidence on Jenna. On cross-examination, defendant testified that Day believed defendant had molested Jenna because defendant had been convicted of a similar charge involving his daughter in 1980.

Anita Beal, a nurse, testified that Jenna told her during the September 4 examination that the man who had touched her had grabbed her and thrown her onto a bed.

Joyce Van Hoose testified that Jenna indicated she had merely been touched "up front and on the side of her right hip" and did not say that defendant had inserted his finger in her or had hurt her. Joyce Van Hoose stated that she was unable to find any blood or other discharge on Jenna's nightgown or mattress. On cross-examination, she stated that she had seen defendant lying facedown on the mattress with his hand touching Jenna's hair earlier in the evening.

In rebuttal, over defendant's objection, the trial court admitted in evidence a certified copy of defendant's prior conviction for the offense of indecent liberties with a child.

The jury found defendant not guilty of anal penetration but guilty of aggravated criminal sexual assault by vaginal penetration and he was sentenced to a term of 25 years imprisonment. This appeal followed.

Defendant first contends that the aggravated criminal sexual assault statute (Ill.Rev.Stat.1985, ch. 38, par. 12-14) and its related provisions are so unreasonable as to violate due process. Defendant was convicted under subsection (b)(1) of the statute, which provides,

"The accused commits aggravated criminal sexual assault 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 * * *."

(Ill.Rev.Stat.1985, ch. 38, par. 12-14(b)(1)).

Defendant argues that "sexual penetration," which by definition includes "any contact, however slight" (Ill.Rev.Stat.1985, ch. 38, par. 12-12(f)), is indistinguishable from "sexual conduct," which is defined as "touching or fondling" (Ill.Rev.Stat.1985, ch. 38, par. 12-12(e)), although an act of sexual penetration is a more serious offense and carries a higher penalty.

Defendant's constitutional arguments were not raised in the trial court and may be considered waived on appeal. (People v. Arnold (1984), 104 Ill.2d 209, 217, 83 Ill.Dec. 561, 470 N.E.2d 981; People v. Hartfield (1985), 137 Ill.App.3d 679, 690, 92 Ill.Dec. 281, 484 N.E.2d 1136, appeal denied.) However, we decline to apply the waiver rule since the issue raises a substantial question of constitutionality which, if sustained, would void the statute under which defendant was convicted. See People v. Moorhead (1984), 128 Ill.App.3d 137, 139, 83 Ill.Dec. 405, 470 N.E.2d 531; People v. McNeal (1983), 120 Ill.App.3d 625, 627, 76 Ill.Dec. 230, 458 N.E.2d 630, appeal denied.

This court considered the constitutionality of this statute in People v. Burmeister (1986), 147 Ill.App.3d 218, 222-23, 100 Ill.Dec. 850, 497 N.E.2d 1212, appeal denied, and determined that it did not fail to constitutionally distinguish the lesser offense from the greater offense. The court noted that the definition of sexual penetration requires that the offending contact be between the sex organ of one person and the sex organ, mouth or anus of another person, while the touching or fondling of the sex organs, anus, or breast of the victim included in the term sexual conduct may be done with the hands or other part of the accused. This court concluded that a significant distinction existed between the two definitions in that an act of sexual penetration would "generally be a greater affront to the personal dignity of the victim" than would an act of sexual conduct (147 Ill.App.3d 218, 223, 100 Ill.Dec. 850, 497 N.E.2d 1212), and that the alleged similarity of the terms did not cause the statute to be an unreasonable exercise of the State's police power. For these same reasons, we find that the statutory definitions are not so unreasonably similar as to violate due process. (See also People v. Server (1986), 148 Ill.App.3d 888, 902, 102 Ill.Dec. 239, 499 N.E.2d 1019 (fact that defendant's conduct could be construed as either sexual conduct or sexual penetration under the statutory definitions did not constitute a denial of due process); People v. Hope (1986), 142 Ill.App.3d 171, 175, 96 Ill.Dec. 506, 491 N.E.2d 785,appeal denied (definition of sexual penetration as "any contact, however slight" was not violative of due process, though contrary to the common meaning of penetration); People v. Hengl (1986), 144 Ill.App.3d 405, 408, 98 Ill.Dec. 815, 494 N.E.2d 937, appeal denied (criminal sexual assault statutes did not violate due process by failing to provide a reasonable distinction for the aggravating factor)).

Defendant also contends that the statutory provisions are unconstitutional because sexual penetration, which is...