People v. Gaither

582 N.E.2d 735, 221 Ill. App. 3d 629, 164 Ill. Dec. 172, 1991 Ill. App. LEXIS 2049
CourtAppellate Court of Illinois
DecidedDecember 4, 1991
Docket5-89-0783
StatusPublished
Cited by6 cases

This text of 582 N.E.2d 735 (People v. Gaither) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Gaither, 582 N.E.2d 735, 221 Ill. App. 3d 629, 164 Ill. Dec. 172, 1991 Ill. App. LEXIS 2049 (Ill. Ct. App. 1991).

Opinion

JUSTICE GOLDENHERSH

delivered the opinion of the court:

After a jury trial, defendant, William Joe Gaither, was found guilty of battery in violation of section 12 — 3(a)(1) of the Criminal Code of 1961 (the Code) (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 3(a)(1)) and was sentenced to 364 days in the county jail. In this cause defendant raises the following contentions: (1) that he was not proven guilty of battery beyond a reasonable doubt, (2) that the trial court erred in admitting evidence regarding other acts of abuse, and (3) that the penalty provided for the offense of battery as applied to this case violates the constitutional assurances of proportionate penalties and due process. We affirm.

Defendant was charged with aggravated battery of a child in violation of section 12 — 4.3(a) of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 4.3(a)). The charge alleged that on March 8 or 9, 1989, defendant “lifted Kelly Gomes upside down by the leg thereby breaking both bones in the lower leg (right) of Kelly Gomes.” The case went to trial on September 20 through 22, 1989. At that time, the following evidence was adduced.

The victim, Kelly Gomes, was born on August 4, 1988. Kelly’s mother is Dustie Gomes. Dustie Gomes and defendant, who was not Kelly’s natural father, were living together at 926 West Elm Street, Olney, on March 8 and 9. During questioning by the Olney police department, defendant told Officer Rich Chaplin that Kelly came before him as far as Dustie was concerned. However, defendant told Officer Chaplin that this did not bother him. Defendant also told Officer Chaplin that he never mistreated Kelly. Defendant was also questioned by Officer Fyffe. According to Officer Fyffe’s testimony, defendant initially denied that he abused Kelly, but upon further questioning, defendant admitted that he hurt Kelly because he was angry at Kelly. He told Officer Fyffe that Kelly was not his child, but that he cared for Kelly’s mother. During this questioning, defendant initially denied ever holding Kelly suspended by his foot or feet, but later admitted to suspending Kelly in the air by his feet. Defendant stated that while doing this he had supported Kelly’s head and had jerked him up and down in order to play with him. Defendant also advised Officer Fyffe that on April 20, he had picked Kelly up by the skin on his neck without supporting his body. Defendant admitted to Officer Fyffe that he had put his hand over Kelly’s mouth and had pinched Kelly’s nose, thereby cutting off the infant’s air supply. Later, defendant denied he had ever shut off Kelly’s air supply.

Sheila Linxwiler and her son, Eric Degroot, also lived at 926 West Elm with defendant, Dustie Gomes, and Kelly Gomes. The two had moved into the home on March 7, 1989. Sheila Linxwiler testified that a few days after she moved in, she saw defendant dangling Kelly by his right ankle. Sheila Linxwiler was sitting at the kitchen table with Eric and Dustie. She heard Kelly crying, and when she looked up, she saw defendant dangling Kelly by his right ankle. She also saw defendant give Kelly four or five quick jerks by the ankle. Ms. Linxwiler described Kelly’s cry on this occasion as an “alarming” cry and as a “shriek.” She stated that Kelly cried for approximately 10 to 15 minutes after this incident. She also testified that during the five weeks she lived at 926 West Elm, she saw defendant mistreat Kelly on other occasions. Specifically, she described at least two incidents after the dangling incident wherein she saw defendant set Kelly on either a table or on the sink and poke Kelly in the chest with his index finger. When questioned about why she failed to tell a worker for the Department of Children and Family Services (DCFS), Brad Leckey, who visited the house in late March, about any of these incidents, Sheila Linxwiler testified that she was trying to protect Dustie Gomes. She did not want DCFS to take Kelly away from Dustie.

Eric Degroot, who was 16 years old at the time of trial, moved into 926 West Elm on March 7, 1989, along with his mother, Sheila Linxwiler. He also stated that one or two days after they moved to this location, he saw defendant holding Kelly by his right leg and shaking or jerking him. Eric stated that he saw defendant shake Kelly up and down approximately 10 times, which caused Kelly to cry for a “couple” of minutes. Eric testified about other times when he saw defendant mistreat Kelly. Eric stated that he saw defendant “flip” the baby in the face hard enough to make the baby cry. On the 19th or 20th of April he heard Kelly crying, and upon checking to see why Kelly was crying, he witnessed defendant holding Kelly by the skin around his throat and shaking him. Kelly’s head was going back and forth, and the infant was screaming. Sometime in April, Eric saw defendant put his hand over Kelly’s nose and mouth long enough to make Kelly gasp for air, approximately 5 to 10 seconds. He saw defendant do this about four or five times. In March, Eric saw defendant put a three- or four-inch-long syringe filled with a liquid, which at the time defendant described as “piss,” into Kelly’s mouth and push it down his throat. Eric admitted that he did not tell Brad Leckey from DCFS about these incidents even though Leckey questioned him concerning incidents of abuse. After Eric’s direct examination, defendant made a motion for mistrial, arguing that the probative value of the testimony concerning defendant’s forcing urine down Kelly’s throat did not outweigh the prejudice of this testimony. Defendant’s motion for mistrial was denied.

Sherry Brauer of DCFS testified about her interviews conducted on April 20 and 21, 1989, with those living at 926 West Elm. During her interviews, Ms. Brauer became concerned about Kelly’s condition and took him to the emergency room. She noticed a swelling of his right extremity. On April 21, 1989, Kelly was admitted to the hospital and examined first by Dr. Rodriguez, the emergency room physician.

Dr. Rodriguez found Kelly to be withdrawn and unresponsive to stimulation. He noticed some bruises on Kelly’s face and an abrasion or some discharge on the left side of Kelly’s neck. Dr. Rodriguez ordered X rays of Kelly’s lower extremities. The X rays showed the presence of a “green-stick” fracture on both the right tibia and right fibula located approximately one centimeter from the ankle joint. A green-stick fracture occurs in children because their bones are not yet completely developed and do not snap like the bones of an adult. Green stick refers to a piece of young wood that does not snap but rather bends and leaves a crease where the stress has been applied.

Dr. David Benson, a pediatrician, also treated Kelly. Dr. Benson noticed that both of Kelly’s ankles were swollen. He confirmed a green-stick fracture, but he stated that the fracture would not be expected to come from a trauma occurring as much as six weeks earlier but rather was the result of a more recent trauma. Dr. Peter Weber, an orthopedic surgeon, reviewed Kelly’s X rays. He confirmed a green-stick fracture of the distal tibia and probably fibula. Dr. Weber opined that this injury could have been the result of Kelly having been held upside down by his ankle and jerked. In Dr. Benson’s opinion, the fracture occurred within one week of the time the X ray was taken.

Several witnesses testified for the defense. Dustie Gomes testified concerning the incident in question.

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Bluebook (online)
582 N.E.2d 735, 221 Ill. App. 3d 629, 164 Ill. Dec. 172, 1991 Ill. App. LEXIS 2049, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-gaither-illappct-1991.