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People v. Herr

OPINION FILED AUGUST 22, 1980.

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

v.

DOROTHY JO HERR, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Winnebago County; the Hon. JOHN S. GHENT, Judge, presiding.

MR. JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:

The defendant was convicted of aggravated battery (Ill. Rev. Stat. 1979, ch. 38, par. 12-4(a)) and cruelty to children (Ill. Rev. Stat. 1979, ch. 23, par. 2368). She was sentenced to the Department of Corrections for concurrent terms of two years for aggravated battery and one year for cruelty to children. The defendant raises two issues on appeal: whether the State failed to prove beyond a reasonable doubt that she intentionally or knowingly committed aggravated battery, and whether her conviction for cruelty to children must be vacated because it is a lesser included offense of aggravated battery.

On January 28, 1979, defendant's two-year-old son, Thomas Herr, was taken to a hospital in Rockford, Illinois, suffering from second degree burns on his buttocks and linear bruises on his lower extremities. The examining physician testified that 11 percent of the body was covered with second degree burns and that the injury was probably caused by contact with a hot liquid. The child was hospitalized for three weeks.

The only evidence of the circumstances surrounding these injuries was provided by the defendant's pretrial statement and in-court testimony. Defendant indicated in a written statement that on January 27, she spanked her son with a "king-switch" to "try and teach him not to go potty in his clothes." She stated that Thomas continued to wet his pants several times that day and that she then took the following action:

"So I picked Thomas up with his wet clothes on, which was a shirt, long pants and socks and set him in the snow. I set Thomas in the snow for about five minutes and he was crying. I then brought him into the house. When I took Thomas's wet clothes off, I saw that his but [sic] was red from the snow. Before I set Thomas in the snow I got a pan and put cold and hot water in the pan and set the pan in the front room. I then put my hand into the water and the water felt warm to me. I then took all the wet clothes off of Thomas and set him in the water. He then began to cry and kick so I kept telling him no to potty in your clothes. The water in the pan only cover [sic] Thomas's but [sic] and leg to his knee. When I first put Thomas into the water I saw steam coming from the water. I left Thomas in the water for about 15 minutes, because I was trying to teach him to not to potty on himself.

Then after I took him out of the water, I put him on some dry clothes and put him to bed."

Defendant testified at trial that the water was only "lukewarm" and that she did not intend to hurt Thomas or even punish him, but only to give him a bath.

After hearing arguments of counsel, the trial judge rendered his verdict stating as follows:

"In any trial, much depends upon the judging of the witnesses' credibility. I have read the statement given by Mrs. Herr. The statement is quite inconsistent with her testimony on the stand and I find that her testimony on the stand is not particularly credible.

We have charged here Aggravated Battery and, first, I think the statute says that a person commits a battery on another when he or she knowingly or intentionally, without legal justification causes bodily harm. There isn't any question in my mind that Mrs. Herr knowingly, intentionally placed this child in a tub of — or bowl of hot water.

Now, I'm sure she didn't say to herself, I'm going to give this kid second degree burns if it's the last thing I do. I think she should have realized the natural and probable consequences of her act, that this child would be burned, bodily harm.

And to get to Aggravated Battery, there has to be great bodily harm. The pictures I saw of the burns on the child's buttock, the fact the child spent three weeks in the hospital, indicate to me that there was great bodily harm.

I think there isn't any question under the circumstances that she's guilty of Aggravated Battery and, of course, Cruelty to Children. I think she did injure this child's health and it was all unnecessary. It was all willful, not with great anger maybe, but certainly was willful. She didn't say I put it in hot water but I didn't intend to. I think the natural consequences of her act must follow. Therefore, I think she's guilty of the charge of Cruelty to Children to a child; namely, Thomas Herr."

Defendant first contends that her convictions for aggravated battery and cruelty to children must be reversed because the trial judge failed to apply the correct state of mind standard. We agree the judge's statement reflects an incorrect standard, but we believe the evidence is sufficient to prove beyond a reasonable doubt that defendant acted with the requisite mental state and therefore affirm the conviction for aggravated ...


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