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People v. Long

OPINION FILED DECEMBER 22, 1977.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

DONALD LEE LONG, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Champaign County; the Hon. CREED D. TUCKER, Judge, presiding.

MR. PRESIDING JUSTICE REARDON DELIVERED THE OPINION OF THE COURT:

On April 26, 1977, a Champaign County jury found the defendant, Donald Lee Long, guilty of 17 counts of indecent liberties with a child and 17 counts of aggravated incest, violations of sections 11-4 and 11-10 of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, pars. 11-4, 11-10). The court entered judgment on the verdicts and sentenced defendant to concurrent 8- to 24-year terms of imprisonment for the indecent liberties offenses with credit granted for the 281 days that defendant had already served in the county jail. On motion of the State, the aggravated incest judgments were purportedly vacated on June 15, 1977, even though a timely notice of appeal had been filed on June 8, 1977.

On August 23, 1976, Officer J.D. Reynolds, Jr., of the Rantoul Police Department received a complaint from Mrs. Linda Pitchers concerning the pregnancy of Lori Lee Schwanderman. Mrs. Pitchers was the baby-sitter for Miss Schwanderman who was the defendant's 14-year-old stepdaughter. During the course of his investigation, Reynolds contacted the State Department of Children and Family Services which arranged for Miss Schwanderman's placement in a foster home.

The defendant was arrested on August 27, 1976, and the Champaign County grand jury returned a 37-count indictment against him on October 29, 1976. Counts I and III charged that the defendant committed the offenses of aggravated incest and indecent liberties by having engaged in an act of sexual intercourse with Miss Schwanderman on March 1, 1976. Counts II and IV charged that he committed the offenses of aggravated incest and indecent liberties by having engaged in an act of sexual intercourse with Miss Schwanderman on January 2, 1976. Counts V, VI, and VII charged that defendant committed three offenses of aggravated incest by engaging in sexual intercourse with his natural daughter, Loreda Warren, sometime between September 1, 1975, and March 1, 1976. The even-numbered counts from VIII through XXXVI charged defendant with 15 aggravated incest offenses by engaging in monthly acts of sexual intercourse with Miss Schwanderman during the period from October 1974 through December 1975. The odd-numbered counts from IX through XXXVII charged defendant with 15 indecent liberties offenses by engaging in monthly acts of sexual intercourse with Miss Schwanderman during the period from October 1974 through December 1975.

After accepting the court's appointment of counsel and after pleading not guilty to all counts of the indictment, the defendant filed a motion for a bill of particulars alleging that he was unable to adequately prepare his alibi defense because imprecise dates had been listed for all but two of the 37 counts of the indictment. In granting the motion, the court stated: "With respect to Count 1, Count 2, Count 3 and Count 4, the motion is granted and the [P]eople are to furnish the places, time hour of day, and the date within reasonable certainty. On counts 5, 6 and 7, the people are to specify the month, week day of the month the place and any event to a reasonable degree of certainty. With respect to Counts 8 through 37, the people are to specify the wee[k] and month or any event and the place within a reasonable degree of certainty." The State responded in its bill of particulars by saying that the act alleged in counts I and III occurred approximately one week prior to defendant's hospitalization for a heart ailment on March 7, 1976, although the victim was unable to recall the precise date. The offense was alleged to have occurred in defendant's bedroom in the family trailer at Klein or Cline Acres Trailer Park, Rantoul, Illinois, at approximately 7 or 8 p.m. The act charged in counts II and IV was alleged to have occurred at the same location around 7 or 8 p.m. on January 2, 1976. The three acts charged in counts V, VI, and VII, were alleged to have been committed with Loreda Warren a few days prior to Thanksgiving, 1975, during February 1976, and on a third date between late October 1975 and early March 1976. Each of these three acts occurred at approximately 10 or 11 p.m. in the bedroom occupied by Miss Schwanderman and Mrs. Warren in the family trailer at Klein or Cline Acres Trailer Park. The acts charged in counts VII through XXXVII were particularized in the following manner: "All the acts of intercourse alleged in Counts VII-XXXVII occurred in the family home. From October 1974 until late October 1975 the family home was a trailer in Shulls [sic] Trailer Court, Rantoul, Illinois. After late October 1975, the family home was in a trailer at Klein Acres Trailer Park, Rantoul, Illinois. At Shulls [sic] Trailer Park the acts of sexual intercourse occurred at least once every month and probably as often as every two weeks. They took place in either Donald Lee Long's bedroom, Lori Lee Schwanderman's bedroom, or the bathroom. Most of the incidents occurred sometime during the evening hours but on several occasions the act of sexual intercourse would take place in the early morning hours in Lori Schwanderman's bedroom. At Klein Acres the act of sexual intercourse took place at least once each month in either the master bedroom of Donald Lee Long or in Lori Lee Schwanderman's bedroom, those incidents occurring during the evening hours. The only specific incident that Lori Schwanderman is able to recall is that an act of sexual intercourse occurred during the early morning hours on the day during the spring of 1975 that she took a trip to Six Flags. No member of the family has been able to pinpoint the date of that trip. Otherwise Lori Schwanderman is unable to pinpoint the dates of the occurrences alleged in Counts VIII-XXXVII. She can only state with great certainty that her step-father, Donald Lee [L]ong engaged in an act of sexual intercourse at least once during each of the months October 1974-December 1975 and that during most of this period these acts of intercourse took place more than once each month."

The cause was called for trial on April 20, 1977, and prior to selection of the jury, the defense presented motions to dismiss and to sever counts V through VII which involved defendant's alleged activity with Loreda Warren. The State filed a motion in limine seeking to exclude evidence relating to Miss Schwanderman's reputation for unchastity and relating to her sexual activity with anyone other than the defendant. While it denied the motions to dismiss, the court granted the motion to sever counts V through VII and the motion in limine.

The prosecutrix, 15 1/2-year-old Lori Lee Schwanderman, testified that she has resided with the defendant since he and her mother were married approximately eight years ago. Over defendant's objection, the witness stated that she has participated in an ongoing sexual relationship with the defendant since she was approximately 9 or 10 years old and living with the family in Fisher, Illinois. From approximately October 1971 to October 1974, when the family resided at the Malloy Trailer Court, the witness stated that she and the defendant engaged in weekly acts of intercourse either during the evening hours when her mother was at work or in the morning when her mother was asleep. When the family moved to the Schull Mobile Home Park in October 1974, the acts of intercourse continued at biweekly intervals. The witness testified that her boyfriend frequently visited her at home during 1975 and that he often stayed overnight with her at the trailer. At some time when the "weather was cold," the defendant expelled the boyfriend from the trailer and told him never to return. The witness recalled that on May 20, 1975, she went to the Six Flags Amusement Park in St. Louis with a group of Girl Scouts. Prior to driving her to the group's bus that morning, the defendant engaged in another act of intercourse with the witness. In October 1975, the family moved to the Cline or Klein Acres Trailer Park where the acts of intercourse continued at approximately monthly intervals. On one occasion, the witness and defendant were discovered by the witness' half brother Wilbur and stepsister Loreda in defendant's bedroom. Loreda corroborated the witness' testimony by saying that after she entered the room, defendant sat on the edge of the bed with his belt unbuckled while Miss Schwanderman squatted in a closet with her slacks pulled down to her knees. On another occasion, Loreda observed a man lying on top of Miss Schwanderman in the bedroom Loreda shared with her. Although Loreda could not see the man's face, she did see the defendant emerge from the bedroom a few moments after she burst in upon the couple. After defendant left the room, Loreda walked in and pulled the covers from the bed, exposing Miss Schwanderman whose nightgown was pulled up to her waist.

Miss Schwanderman testified that defendant had intercourse with her again on January 2, 1976, when her three brothers were home and on another occasion approximately one week prior to defendant's hospitalization on March 7, 1976.

On December 18, 1976, Miss Schwanderman gave birth to a child. She stated that during 1976, she engaged in sexual intercourse only with the defendant.

Miss Schwanderman testified that the defendant was home approximately two days out of every week. She stated that she told her mother of her acts of intercourse with the defendant and his father; however, her mother did not believe her. She stated that the defendant threatened to put her in a school if she told anyone and that, after she became pregnant, he threatened to kill her if she revealed the paternity of her child.

After the State rested, the defendant put on an alibi defense to establish that the defendant took elaborate precautions to avoid Miss Schwanderman's allegations. Defendant's parents, sister, and niece testified that he spent nearly every moment that his wife was working with them either playing cards or working on cars. Both the defendant and his father denied having intercourse with Miss Schwanderman. Other defense witnesses testified that Miss Schwanderman's reputation for truth and veracity in the community was bad. Still other witnesses testified that they attended an evening housewarming party at the Long trailer on January 2, 1975, and that neither Miss Schwanderman nor her half brothers were present on that occasion.

After defendant was found guilty of 17 counts of indecent liberties and 17 counts of aggravated incest, a sentencing hearing was conducted by the court. At that hearing, Loreda Warren testified that she engaged in acts of intercourse with the defendant on three occasions between Thanksgiving, 1975, and February 1976, and other acts of sexual intercourse between 1969 and 1972. A Champaign County probation officer, Lester Mulvaney, testified concerning a presentence report in which he recommended that the defendant not be sentenced to probation. Finally, the prosecutrix testified in aggravation and the defendant testified in mitigation, again denying his guilt. Sentence was then imposed by the court.

On appeal, we are faced with essentially nine issues: (1) Whether defendant has waived the formal defect caused by the miscitation of section 11-4 in the odd-numbered counts from IX to XXXVII in the indictment; (2) whether counts VIII through XXXVII are void for stating imprecise dates of the offenses, thereby preventing defendant from preparing an adequate defense; (3) whether defendant was prejudiced by the introduction of evidence tending to prove that he committed crimes that were not specified in the indictment; (4) whether the trial court abused its discretion in refusing to admit evidence concerning defendant's motives in avoiding the prosecutrix; (5) whether the trial court abused its discretion in refusing to admit evidence concerning the bias of Linda Pitchers, a State witness; (6) whether defendant's guilt was proved beyond a reasonable doubt; (7) whether the trial court abused its discretion in permitting Loreda Warren to testify at the sentencing hearing concerning her sexual activities with the defendant; (8) whether the trial court abused its discretion by imposing an excessive sentence; and (9) whether the trial court had power to vacate the aggravated incest convictions after a notice of appeal had been filed.

Among other things, an indictment must be in writing and must cite the statutory provision alleged to be violated. (Section 111-3 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. 111-3).) It is clear, however, that an indictment shall not be dismissed and may be amended at any time to correct a formal defect including any miswriting. (Section 111-5(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. 111-5(a)); People v. Foster (1975), 32 Ill. App.3d 1009, 1011-12, 337 N.E.2d 90 (section 111-5's list of formal defects is not exclusive).) In People v. Dismore (1975), 33 Ill. App.3d 495, 498-99, 342 N.E.2d 151, 154, the court held that citation of a repealed section of the Criminal Code which had been reworded and incorporated in another legislative enactment was a formal defect that did not require reversal of a conviction. In People v. Parr (1970), 130 Ill. App.2d 212, 219-20, 264 N.E.2d 850, citation to the incorrect chapter and ...


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