People v. Hestand

838 N.E.2d 318, 362 Ill. App. 3d 272, 297 Ill. Dec. 831, 2005 Ill. App. LEXIS 1105
CourtAppellate Court of Illinois
DecidedNovember 4, 2005
Docket4-03-0801
StatusPublished
Cited by60 cases

This text of 838 N.E.2d 318 (People v. Hestand) 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. Hestand, 838 N.E.2d 318, 362 Ill. App. 3d 272, 297 Ill. Dec. 831, 2005 Ill. App. LEXIS 1105 (Ill. Ct. App. 2005).

Opinions

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 two counts of aggravated criminal sexual abuse. In July 2003, a jury found defendant guilty on three counts. In August 2003, the trial court imposed a 15-year prison sentence on the criminal-sexual-assault conviction and concurrent 7-year terms on the aggravated-criminal-sexual-abuse convictions.

On appeal, defendant argues (1) his aggravated-criminal-sexual-abuse conviction for fondling the victim’s vagina must be vacated pursuant to the one-act, one-crime rule, (2) he was denied a fair trial when a witness read defendant’s statement to police to the jury, and (3) the trial court improperly considered multiple victim-impact statements and imposed an excessive sentence. We affirm in part, vacate in part, and remand with directions.

I. BACKGROUND

In May 2001, the State charged defendant with two counts of criminal sexual assault (720 ILCS 5/12 — 13(a)(1), (a)(2) (West 2000)), alleging he committed an act of sexual penetration with T.H. in that by the use of force he placed his penis in her vagina (count I) and knowing that T.H. was unable to give knowing consent he committed an act of sexual penetration by placing his penis in her vagina (count II). The State also charged defendant with two counts of aggravated criminal sexual abuse (720 ILCS 5/12 — 16(c)(l)(ii) (West 2000)), alleging defendant, over the age of 17, committed an act of sexual conduct with T.H., at least 13 years of age but under 17 years of age, in that he knowingly and by the use of force fondled T.H.’s vagina for the purpose of his sexual arousal (count III) and knowingly and by the use of force fondled 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 sister of her guardian’s husband. On May 12, 2001, T.H. was asleep on the couch when defendant knocked on the door and asked for Marrow. Defendant then asked about the best place to eat, and T.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 asked T.H. where the best place to go fishing was. T.H. tried to give him directions and later told him she would show him if he bought her a pack of cigarettes. T.H. entered the van and they headed west. Defendant had her “duck” whenever he passed certain apartments, but T.H. did not find that unusual. They eventually ended up “underneath the bridge” and both exited the van. After pointing out a fishing spot, defendant told T.H. she was beautiful and that when she turned 18 he would take her away and marry her. T.H. was shocked and turned around to walk back to the van. Defendant then grabbed her arm and pulled her toward him. He then started hugging and kissing her. T.H. pulled away and started running. She tried to run up the hill but changed directions and tried to go to the van.

T.H. testified defendant unlocked the van and she got in the front seat. Defendant started to fondle her breasts. He then pulled down her pants and underwear. Defendant undid his pants and said, “ ‘See what you did?’ ” T.H. glanced down and noticed “his penis was hard.” Defendant told her to touch his penis, but she refused. He then grabbed her hand, put it on his penis, and “started moving [her] hand back and forth.” She then jerked her hand away. Thereafter, defendant placed his penis in her vagina “for a couple of minutes.” T.H. attempted to fight and tried to pull up her pants. Defendant kept pulling her pants down and said she would never see her family again. T.H. told him she was going to tell, and he said, “ ‘Oh, well’ ” and told her not to shave her vagina. T.H. stated she never saw defendant ejaculate and he had trouble maintaining an erection. Thereafter, defendant drove to Dairy Queen to eat and to the gas station for cigarettes. Defendant gave her one pack and said for the second one she had to give him a “blow job.” T.H. refused, and defendant dropped her off at the municipal building. T.H. could not find her friends and started looking for a police officer.

Special Agent A1 Duncan of the Illinois State Police testified he interviewed T.H. and defendant. Agent Duncan stated T.H. was “upset,” “crying,” and “nervous.” After T.H. stated defendant grabbed her arm, Agent Duncan noticed a bruise on her inside right biceps area. Defendant told him he took T.H. to Dairy Queen for something to eat and then dropped her off near the police station in Greenup. Defendant denied being at the bridge area. When Duncan told defendant tire tracks matching his van had been found near the area, defendant said he may have been out there the previous week. After Duncan said it had rained since then, defendant said he may have been out there earlier that day but he could not remember for sure. Defendant denied having sex with T.H. and stated it was difficult for him to achieve an erection because he had prostate problems. Duncan told him T.H. was at the hospital and an analysis could determine if they engaged in sex. Duncan testified he misinformed defendant as to the tire tracks, the rain, and the analysis at the hospital “as it was an interrogation technique to try to elicit truthful information from a person.”

Defendant wanted to know whether T.H. stated the sex was consensual, and Duncan said she claimed defendant raped her. Defendant then stated the sex was consensual. Defendant told Duncan he was unable to maintain an erection, he did not get any satisfaction out of it, and “he did the best he could in his sexual performance but that he could not get, in his words, a [‘]hard on[’] and did not ejaculate.” Defendant then agreed to write a voluntary statement. Duncan read the statement to the jury:

“I, K.L. Hestand, had sex with [T.H.]. And she started it. She wanted it. Asked for it. So we went to a place she knowed [sic], and it was on a river. We had sex in the passenger seat of the vehicle. She say I’m no good because I could not get [‘]hard on.[’] And I did try the best I could. I did not get any satisfaction out of it.”

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

Delores Marrow testified as a defense witness. She stated she had an intimate relationship with defendant. In May 2001, defendant had been treated for a blood clot in his leg. Marrow testified defendant was impotent “sometimes but not always.”

Defendant testified he would often take T.H. to the store to buy food and cigarettes because her family did not have any money. On May 12, 2001, defendant went to T.H.’s house to see if Marrow was there. Later, T.H. came down to Marrow’s trailer and asked defendant to buy her food and drop her off at home. Defendant bought her a pack of cigarettes and dropped her off at police headquarters. Later, defendant went to the police station after being contacted by the police.

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Cite This Page — Counsel Stack

Bluebook (online)
838 N.E.2d 318, 362 Ill. App. 3d 272, 297 Ill. Dec. 831, 2005 Ill. App. LEXIS 1105, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-hestand-illappct-2005.