Appeal from the Appellate Court for the Third District; heard
in that court on appeal from the Circuit Court of Will County,
the Hon. Robert E. Buchar, Judge, presiding.
JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:
The charges involved in this criminal case originated with the filing of a delinquency petition in the circuit court of Will County against 15-year-old James Hicks, Jr. The matter was subsequently transferred to the adult division for prosecution of Hicks as an adult (Ill. Rev. Stat. 1979, ch. 37, par. 702-7(3)), and he was indicted on various charges including deviate-sexual assault, rape and heinous battery. He was found guilty of these offenses in a jury trial and later sentenced to a term of 20 years' imprisonment for rape, a consecutive 20-year term on the deviate-sexual-assault conviction, and a concurrent 20-year term for the heinous battery. On appeal, the appellate court reduced the heinous-battery conviction to aggravated battery and remanded the cause to the circuit court for resentencing on that offense. In all other respects the appellate court affirmed. (112 Ill. App.3d 303.) We allowed the petitions of both the State and the defendant for leave to appeal.
The State argues that the appellate court erred in reducing the defendant's conviction of heinous battery to aggravated battery. The defendant urges affirmance of this reduction to aggravated battery, but claims that such reduction requires remand for resentencing on all convictions, not merely the conviction which has been reduced. The defendant also claims that the trial court erred in imposing consecutive sentences because the trial court did not specifically find, nor does the record show, that such a sentence was necessary to protect the public as is required by the applicable sentencing statute.
The facts are not disputed in this court. During the afternoon of March 19, 1981, the nine-year-old victim (Erica) was alone in her family's apartment practicing her violin. She became hungry and placed hot dogs in a pan of water, putting the pan on the stove. While the pan was heating, Erica heard a knock at the apartment door. She answered the door and found standing there an individual whom she later identified as the defendant.
After Erica, in response to defendant's questions, disclosed that she was alone, the defendant entered the apartment. He located a knife which he used to repeatedly scrape across her neck. He then forced her into her bedroom, where he made her remove her pants. After unsuccessfully attempting to force his penis into her vagina, the defendant forced his penis into Erica's mouth. Her next recollection was awakening on her parents' bed in pain, with her sweater wet. The pan in which she was cooking the hot dogs was in her room on the floor near the bed. The hot dogs remained in the otherwise empty pan.
The medical testimony established that Erica had been beaten about the face, bruised and repeatedly cut about the throat, and that a blunt object had been thrust into her mouth, throat and pubic area. Her body had been severely burned, primarily on her chest, abdomen and upper right arm. The burns destroyed Erica's right breast bud, and perhaps the left one, also, and required substantial debridement and skin grafting. The result has been considerable permanent discoloration, scarring and disfigurement. The burns had been caused by a liquid substance, and the clear inference from the evidence was that boiling water from the pan being used to cook the hot dogs had been poured over Erica's upper body.
The appellate court held that as a matter of law these facts do not constitute heinous battery as defined in the applicable statute. The pertinent section provides:
"A person who, in committing a battery, knowingly causes severe and permanent disability or disfigurement by means of a caustic substance commits heinous battery." (Ill. Rev. Stat. 1979, ch. 38, par. 12-4.1(a).)
There is no dispute that a battery was committed which resulted in severe and permanent disability and disfigurement. The question is whether boiling water as here involved constitutes a "caustic" substance within the meaning of the statute.
We note, initially, that this issue was not specifically presented by the defendant in the trial court. While the sufficiency of the evidence was generally raised in defendant's post-trial motion, that motion did not advise the trial court of the contention now made. To the contrary, at no time during the trial did defendant question the applicability of the heinous-battery statute to these facts. Erica's primary treating physician testified without objection that her burns had been caused by a caustic substance and that in his professional opinion boiling water is a caustic substance. Instead of the issue now raised, the defense focused upon the identity of the assailant.
It is well established that issues not raised in the trial court are generally considered waived on appeal. (See, e.g., People v. Garcia (1983), 97 Ill.2d 58, 86; People v. Holloway (1981), 86 Ill.2d 78, 91.) In analogous circumstances, this court has refused to accept a defendant's contention that a weapon was not a machine gun as defined by a criminal statute when it had been treated as such throughout the trial proceedings. (People v. McMahon (1934), 359 Ill. 97, 98-99.) Consequently, we would be justified in finding that this issue has been waived. However, because the waiver issue was not urged by the State in the appellate court, and because the issue may involve an essential element of the prosecution, we address it on the merits. See 73 Ill.2d R. 615(a); People v. Walker (1955), 7 Ill.2d 158 (the State's failure to prove an essential element can be raised for first time on appeal).
The offense of heinous battery was created relatively recently in conjunction with the enactment of substantial revisions of the criminal laws of Illinois, commonly referred to as Class X legislation. We have thoroughly reviewed the legislative history of this enactment and have found no guidance to assist us in our determination of whether boiling water is intended to qualify as a caustic substance under the terms of this statute.
We find the best indication of the breadth of the statute to be the definition of the word "caustic" itself. Where the terms of a statute are not defined by the legislature, courts> will assume that they were intended to have their ordinary and popularly understood meanings, unless doing so would defeat the perceived legislative intent. (See, e.g., People v. Fink (1982), 91 Ill.2d 237, ...