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People v. Hicks

ORIGINAL OPINION FILED JANUARY 11, 1983.

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

v.

JAMES HICKS, JR., DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Will County; the Hon. Robert R. Buchar, Judge, presiding.

PRESIDING JUSTICE BARRY DELIVERED THE OPINION OF THE COURT: Rehearing denied March 2, 1983.

Defendant appeals from convictions and sentences imposed by the circuit court of Will County upon jury verdicts finding him guilty of rape, devious sexual assault and heinous battery. (Ill. Rev. Stat. 1979, ch. 38, pars. 11-1, 11-3, 12-4.1.) At the time of the offenses defendant was 15 years old. The case was transferred from the juvenile division to the adult division after a hearing conducted pursuant to section 2-7(3) of the Juvenile Court Act. Ill. Rev. Stat. 1979, ch. 37, par. 702-7(3).

In the afternoon of March 19, 1981, nine-year-old Erica Smith was home alone practicing her violin. She was hungry, so she put a couple of hot dogs and water in a "Corning Ware" pan on the stove to cook. Erica returned to her violin and then heard a knock on the apartment door. When there was no response to her inquiry about who was there, Erica opened the door a few inches and observed the defendant.

The defendant first asked if Erica's parents were home and then whether she had brothers and sisters. Erica said "no" to both questions. Then the defendant pushed the door open, took a steak knife and scraped it across Erica's neck, and pushed her into her bedroom. There, he made her pull down her pants and tried to force his penis into her vagina. It wouldn't fit, so he put it in her mouth.

Erica's next recollection was awakening on her parents' bed in pain and her sweater wet. Erica phoned the police and tried to reach her mother at work. Her mother showed up in a few minutes and Erica was taken to the hospital.

The hot dogs and pan were found on the floor of Erica's room near the bed. Erica's body was severely burned, primarily on her chest, abdomen and upper right arm. Her right breast bud was destroyed by burning. Her face and eyes were swollen and bruised, as were the insides of her mouth and throat. Swelling and irritation also were noted in the genitalia area.

The defendant was apprehended by the police on April 1 and subsequently formally charged by indictment on July 22, 1981. The indictment was in six counts — home invasion, deviate sexual assault (two counts), rape, heinous battery and armed violence.

The defendant's two-week trial, including jury selection, began on October 14, 1981. One count of deviate sexual assault and the armed violence charge were dismissed with prejudice on the State's motion at the close of its case-in-chief for lack of supporting evidence. At the close of all evidence and arguments of counsel, the jury deliberated and returned verdicts of guilty on each of the four remaining counts.

Convictions were entered accordingly. The State then moved to nolle prosequi the home invasion count for failure to allege in the charging instrument "that the defendant had acted without authority." The motion was granted and the court proceeded to a sentencing hearing on the remaining convictions. Upon consideration of testimony, psychologists' reports and the recommendations of counsel, the court imposed prison sentences of 20 years each for heinous battery, deviate sexual assault and rape, the latter two sentences to be served consecutively with each other and concurrently with the sentence for heinous battery.

On appeal, the defendant raises two issues: (1) whether boiling water is a "caustic substance" as that expression is used in the heinous battery statute; and (2) whether the trial court erred in failing to express its opinion at the sentencing hearing that consecutive sentences were necessary for the protection of the public.

• 1 The sole evidence of the cause of Erica Smith's severe body burns was the fact that the pan of hot dogs, which Erica had earlier placed in water on the stove to cook, was found with only the hot dogs remaining beside her bed, and Erica's sweater was wet when she awoke after the incident. Clearly, the inference was that boiling hot dog water had been poured on the little girl's body.

Erica's physician testified that in his professional opinion boiling water is a caustic substance and such could have caused her burn injuries. The defendant contends that whether or not boiling water is a caustic substance is not an appropriate issue for which expert opinion is admissible. Rather, it is a question of law to be determined by the court by applying rules of statutory construction. We agree.

In the absence of evidence to the contrary, words used in a statute are to be given their ordinary and popularly understood meanings. (Winks v. Board of Education (1979), 78 Ill.2d 128, 398 N.E.2d 823.) The word "caustic" is defined in Webster's Third New International Dictionary as "capable of destroying the texture of anything or eating away its substance by chemical action: CORROSIVE." Webster's Third New International Dictionary 356 (1971).

The properties of water cannot be said to fit within the dictionary definition of "caustic." While certainly water is capable of burning by thermal — as opposed to chemical — action when heated to the boiling point, this is true as well of a wide range of noncaustic substances which require a certain amount of ...


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