People v. Wittenmyer

576 N.E.2d 528, 216 Ill. App. 3d 1042, 159 Ill. Dec. 859, 1991 Ill. App. LEXIS 1288
CourtAppellate Court of Illinois
DecidedJuly 26, 1991
DocketNo. 3—90—0693
StatusPublished
Cited by2 cases

This text of 576 N.E.2d 528 (People v. Wittenmyer) 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. Wittenmyer, 576 N.E.2d 528, 216 Ill. App. 3d 1042, 159 Ill. Dec. 859, 1991 Ill. App. LEXIS 1288 (Ill. Ct. App. 1991).

Opinion

PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

Following a bench trial, the defendant, James E. Wittenmyer, was found guilty 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). The trial court sentenced the defendant to concurrent five-year terms of imprisonment on each abuse conviction, and to seven years in prison on the assault conviction. The sentence on the assault conviction was to run consecutive to the other three sentences. The defendant appeals and we affirm as modified.

The record showed that in the summer of 1989, D.L., age 10, and her brother G.L., age 13, spent most of the summer residing with their grandmother and the defendant, the children’s step-grandfather. The children’s mother, Judy Lopez, had separated from their father and moved to La Moille, where her mother and the defendant lived. In late June 1989, Judy Lopez attempted suicide and was hospitalized. On advice of her doctors, she spent a month in New Jersey with her brother and his family. D.L., G.L. and their younger brother and sister lived with their grandparents.

D.L. testified that in the last incident of alleged abuse, she had been sent to her mother’s home to retrieve a pair of biking shorts. The defendant accompanied her to the house, which the record showed was only a few blocks from the grandparent’s home. She testified that when she and the defendant were in the basement looking for the shorts, the defendant backed her up against a cabinet. The defendant got down on his knees and lifted D.L.’s shirt and bra. She testified that he rubbed and sucked her breasts. The defendant then put his hands down D.L.’s pants and rubbed her vagina. He then started to insert his finger in her vagina. She stated that she knew this was occurring, because she felt pain and she could feel him push “up and down.” She testified that he inserted his finger as far as the first knuckle. This incident served as the basis for two of the counts of aggravated criminal sexual abuse and the aggravated criminal sexual assault charge.

G.L. testified that while living in his grandparent’s home, he was sexually abused on a number of occasions by the defendant. Concerning the incident constituting grounds for the third count of aggravated criminal sexual abuse, G.L. testified that one evening he was alone in his grandparents’ living room watching television. The defendant returned home from work around 10:30 p.m. After the defendant took a shower, he joined G.L., who was lying on the couch in the living room. G.L. testified that the defendant sat down next to him on the couch. According to G.L., the defendant pulled out his penis and asked G.L. to give him “a rub.” G.L. rubbed the defendant’s penis between 45 seconds and a minute.

Because D.L. was under the age of 13 at the time of the alleged abuse, the State was allowed to submit testimony concerning D.L.’s out-of-court statements, pursuant to section 115 — 10 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10). Detective Brett Taylor testified to three interviews with D.L. occurring on September 4, 1989, September 15, 1989, and February 22, 1990. Prior to trial, a hearing had been held at which the trial court determined that the circumstances surrounding the statements provided sufficient safeguards of reliability.

Taylor testified in detail about what D.L. said at each interview. Taylor testified that D.L.’s story concerning the incident was basically the same in each interview. However, the insertion of the finger was not mentioned until the last interview on February 22, 1990. As D.L. testified at trial, Taylor stated that D.L. expressed confusion at the last interview and told the investigators that in the earlier interviews she was under the impression that they were asking her whether the entire finger had been placed in her vagina. In his September 4, 1989, report Taylor stated that D.L. did not know if the finger actually went into her vagina. The September 15, 1989, report made no mention of any attempt to insert the finger or that D.L. felt any pain. However, Taylor testified that D.L. did discuss this during the September 15 interview, but that he forgot to mention it in his written report.

The testimony of the State’s witnesses and their cross-examination also brought out numerous other alleged incidents in which the defendant sexually abused D.L. and G.L..

The defendant testified and denied that he ever sexually abused the children. He testified that the time he went with D.L. to look for the biking shorts, G,L, went with them.

Other family members also testified concerning the events surrounding the alleged abuse, and the character of the children and their mother. For example, Tom Pontellis talked with the children on the Sunday of Labor Day weekend 1989 about the alleged abuse. Pontellis testified that G.L. told him that the defendant had G.L. rub the defendant’s penis two or three times while they were alone in the car. D.L. told Pontellis that the defendant rubbed “her private parts” in an upstairs bedroom and in the basement of the defendant’s home.

The trial court found that although there were inconsistencies in the children’s stories, the trial court found their testimony to be “virtually not shaken.” The trial court found the defendant guilty on all four counts.

On appeal, the defendant contends there was insufficient credible evidence to support his conviction on any of the counts. The defendant points to the inconsistencies in the children’s testimony concerning the number of incidents, the location of the alleged abuse, and a number of other discrepancies in the testimony of the witnesses. The defendant contends in particular that he was not proven guilty of aggravated criminal sexual assault beyond a reasonable doubt. He cites the fact that D.L. did not indicate that the defendant’s finger penetrated her vagina until the third interview with authorities on February 22,1990.

When presented with a challenge to the sufficiency of the evidence, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) The credibility of the witnesses and the weight to be given their testimony is exclusively within the province of the trier of fact. (People v. Hudson (1990), 198 Ill. App. 3d 915, 556 N.E.2d 640.) Further, minor inconsistencies in the testimony do not, of themselves, create a reasonable doubt. People v. Brisbon (1985), 106 Ill. 2d 342, 478 N.E.2d 402.

A review of the record shows that the basic facts related by D.L. and G.L. concerning the two incidents of abuse serving as the basis for the indictments against the defendant remained consistent. Although this court might have reached a different determination based on the evidence, we will not substitute our judgment for that of the trier of fact.

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Related

People v. Wittenmyer
601 N.E.2d 735 (Illinois Supreme Court, 1992)
People v. Bell
600 N.E.2d 902 (Appellate Court of Illinois, 1992)

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Bluebook (online)
576 N.E.2d 528, 216 Ill. App. 3d 1042, 159 Ill. Dec. 859, 1991 Ill. App. LEXIS 1288, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-wittenmyer-illappct-1991.