People v. Wittenmyer

601 N.E.2d 735, 151 Ill. 2d 175, 176 Ill. Dec. 37, 1992 Ill. LEXIS 133
CourtIllinois Supreme Court
DecidedOctober 1, 1992
Docket72593
StatusPublished
Cited by108 cases

This text of 601 N.E.2d 735 (People v. Wittenmyer) is published on Counsel Stack Legal Research, covering Illinois Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Wittenmyer, 601 N.E.2d 735, 151 Ill. 2d 175, 176 Ill. Dec. 37, 1992 Ill. LEXIS 133 (Ill. 1992).

Opinion

JUSTICE CLARK

delivered the opinion of the court:

Following a bench trial in the circuit court of Bureau County, defendant, James E. Wittenmyer, was convicted of three counts of aggravated criminal sexual abuse (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 16) and one count of aggravated criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 14). Defendant was sentenced to concurrent five-year terms for each of the three aggravated criminal sexual abuse convictions, and to seven years’ imprisonment for the aggravated criminal sexual assault conviction, which was to run consecutively to defendant’s other convictions.

The appellate court affirmed defendant’s convictions, but found that the circuit court erred in imposing a consecutive sentence for defendant’s aggravated criminal sexual assault conviction. Consequently, the appellate court modified the judgment of the circuit court: vacating defendant’s consecutive sentence for aggravated criminal sexual assault and ordering that it be served concurrently to defendant’s sexual abuse convictions. (216 Ill. App. 3d 1042.) We granted the State’s petition for leave to appeal (134 Ill. 2d R. 315). In addition, defendant has requested cross-relief (134 Ill. 2d R. 315(g)), arguing that there was insufficient evidence to support a conviction on any of the four counts, and that defendant was denied a fair trial by the introduction of out-of-court statements and the intentional destruction of discoverable notes of interviews.

Testimony at trial revealed that in October 1988, Judy L. and her four children, G.L., D.L., Angela, and Louis, moved to La Moille, Illinois. They lived approximately four blocks from Judy’s mother and step-father, Joanne Wittenmyer and defendant. Subsequently, in late June 1989, Judy suffered a mental breakdown and attempted suicide. She was hospitalized for a week, and then went to New Jersey to live with her brother for a month. During the time Judy was hospitalized and living in New Jersey, her four children lived with Joanne and defendant. In the summer of 1989, D.L. was 10 and her brother G.L. was 13.

Judy testified that one week after she returned from New Jersey, on August 7, 1989, D.L. told her that defendant had been sexually abusing her. Two weeks later, on Labor Day weekend, Judy explained to G.L. that defendant had been sexually abusing D.L. and that the family had to move to La Salle. At this time, G.L. began to cry and told Judy that defendant had also been sexually abusing him.

D.L. testified that in the last incident of abuse, which occurred in late July or early August, defendant accompanied D.L. to her mother’s house to retrieve a pair of biking shorts. While D.L. and defendant were in the basement looking for the shorts, defendant “leaned” D.L. against a cabinet, and got down on his knees. D.L. testified that defendant lifted her shirt and bra and rubbed and sucked her breasts. Then, defendant put his hand down her pants and rubbed her vagina. After a minute, defendant attempted to insert his finger into her vagina. D.L. testified that she felt pain and she could feel defendant “pushing up, like up and down and everything.” According to D.L., defendant inserted his finger approximately to the first knuckle. This incident of abuse served as the basis for two of the counts of aggravated criminal sexual abuse, and the one count of aggravated criminal sexual assault.

D.L. also testified that defendant had sexually abused her on five to six prior occasions at her mother’s house. Each time, D.L. had been sent to retrieve the biking shorts, which belonged to her aunt Jaimie, and defendant accompanied her to the house. In addition, D.L. testified that defendant had sexually abused her one time at defendant’s house.

On cross-examination, D.L. reaffirmed that this last incident of abuse occurred prior to her mother’s returning from New Jersey. Previously, in September 1989, D.L. had told the investigators that this last incident of abuse occurred after Judy returned from New Jersey. Moreover, D.L. admitted that when she first spoke with the investigators back on September 4, 1989, she told them that she was not sure whether defendant had inserted his finger during the last incident of abuse. But, she explained that she thought the investigators’ question referred to the insertion of defendant’s whole finger.

G.L. testified to an incident in early August 1989, while he was living with his grandmother and defendant. According to G.L., one evening he was alone in the living room watching television. Defendant arrived home from work at approximately 10:30 p.m., and after taking a shower, joined G.L. on the couch. At this time, G.L. testified that defendant pulled out his penis and asked G.L. to give it “a rub.” G.L. rubbed defendant’s penis for approximately 45 seconds, at which time defendant went to the bathroom. This incident, which had happened on two prior occasions, served as the basis for the third count of aggravated criminal sexual abuse.

G.L. also testified to other instances of abuse. Specifically, G.L. stated that defendant had G.L. • masturbate him in defendant’s car while they drove to Mendota, Illinois. G.L. estimated that the total instances of sexual abuse during the summer of 1989 numbered 10 to 15. G.L. testified that he never told anyone about this sexual abuse because he was afraid “everyone would be mad at him.” G.L. finally told his mother, Judy, after Judy told G.L. that defendant had been sexually abusing his sister, D.L.

On cross-examination, G.L. admitted that he had told the investigators back in September 1989 that he had been sexually abused at his mother’s house on five to six prior occasions. On approximately two to three of these times, G.L. and defendant had gone to his mother’s house to repair a broken water pipe or faucet.

Detective Brett Taylor testified that on September 6, 1989, he interviewed defendant’s wife, Joanne, and that she admitted that defendant and G.L. had been alone in defendant’s car on “numerous” occasions. Detective Taylor also testified to a conversation he had with Jaimie Wittenmyer, defendant’s and Joanne’s daughter, in which she told him that defendant and D.L. had gone alone to Judy’s house on “four occasions or maybe more” to look for the biking shorts.

Detective Taylor also testified to three interviews with D.L. occurring on September 4, 1989, September 15, 1989, and February 22, 1990. D.L.’s out-of-court statements made during these three interviews were admitted pursuant to section 115 — 10 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10). Taylor testified in detail about D.L.’s statements at each interview, and that D.L.’s statements were consistent throughout. Regarding the September 4 interview, Taylor testified that D.L. described six incidents in which defendant sexually abused her at Judy’s house while they were looking for Jaimie’s biking shorts. Four of these incidents occurred in the basement, while two occurred in the kitchen. In terms of whether defendant’s finger penetrated D.L.’s vagina during the last incident of abuse, Taylor testified that D.L. stated “[defendant] tried to put a finger into her vagina and she knew this because it hurt.”

Regarding the September 15 interview, Taylor testified that D.L.

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Cite This Page — Counsel Stack

Bluebook (online)
601 N.E.2d 735, 151 Ill. 2d 175, 176 Ill. Dec. 37, 1992 Ill. LEXIS 133, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-wittenmyer-ill-1992.