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People v. Hope

OPINION FILED MARCH 27, 1986.

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

v.

DELANEY HOPE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Will County; the Hon. Michael A. Orenic, Judge, presiding.

JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

Delaney Hope, the defendant, was by indictment charged with the offenses of attempted murder, aggravated criminal sexual assault and armed violence. After trial by jury he was convicted of the offenses and sentenced to concurrent terms of 30 years' imprisonment.

During the trial of the defendant, evidence established that JoLynda Reyes and her husband returned to their Crest Hill apartment in Joliet at about 10:30 p.m. on October 26, 1984. Mrs. Reyes took the family's laundry to the laundry room which was located in the apartment complex. She made several trips to and from the laundry room and her apartment. On her last trip to the laundry room, she noticed a small yellow Chevy truck parked outside the complex, and on a nearby washer she noticed a small piece of paper upon which were the words "Dr. Chinnici Saturday 10:15 A.M." While she was folding her laundry, a black man, the defendant, entered the room. He quickly positioned himself back of Mrs. Reyes, put a knife to her neck, threatened to kill her, and forced her to the floor. The defendant then closed the door, unscrewed the light bulb, undid his clothes and removed Mrs. Reyes' clothing. In street talk he instructed Mrs. Reyes to rub his penis on her "sex organ" and then attempted to insert his penis in her. Defendant concedes that the insertion, if any, was very slight. The defendant then redid his clothes and ordered Mrs. Reyes to get up from the floor. Along with Mrs. Reyes, he left the laundry room and proceeded towards the outside of the building. When they paused on a landing, Mrs. Reyes removed defendant's hand from her mouth and began screaming. The defendant then stabbed Mrs. Reyes a number of times. The husband of Mrs. Reyes, upon hearing her screams, came to her aid and arrived in time to see a man run out of the building and drive off in a small yellow truck.

Mrs. Reyes was taken to the emergency room of a hospital. Mrs. Reyes indicated to hospital personnel that her assailant had been unsuccessful in raping her; however, she had been repeatedly stabbed and there was concern that one stab wound may have penetrated her abdomen. This fear proved to be groundless, and Mrs. Reyes survived and apparently physically recovered from her wounds.

Through fingerprint identification, a police lineup, the yellow truck, the note regarding an appointment with Dr. Chinnici and other investigatory procedures the defendant was apprehended, indicted, tried by a jury, found guilty and sentenced as we have heretofore set forth.

Further reference to the evidence presented to the trial court and the procedural history of this case will be set forth as the same becomes pertinent to the determination of the issues raised in this appeal.

• 1 The defendant first argues that his conviction for aggravated criminal sexual assault should be reversed since the sex assault law of which the defendant's offense is a part is so unreasonable in its definitions and applications as to violate the due process clauses of the United States and Illinois constitutions. The State counters this argument by claiming that the defendant has waived the right to challenge the constitutionality of the aggravated criminal sexual assault statute.

This court has adhered to the established rule that in order to challenge the constitutionality of a statute the defendant must raise the issue in the trial court. (People v. Kerker (1984), 121 Ill. App.3d 1072, 460 N.E.2d 771.) It has also been held by this court that specific objections waive all grounds not specified and presented to the trial court. A defendant cannot raise on appeal in a post-trial motion a question which was not properly presented to the trial court. People v. Bitner (1980), 89 Ill. App.3d 1106, 412 N.E.2d 721.

In the instant case, the defendant filed a motion to dismiss the two counts of the indictment which alleged that the defendant committed the offense of aggravated criminal sexual assault. In this motion the defendant claimed that "sex organ" was not defined in the statute and without such a definition it was impossible to determine what constituted "penetration." It was also argued in support of the motion that without such a definition it would be impossible to determine when "contact" occurred pursuant to the aggravated criminal assault statute. The trial judge denied defendant's motion by referring to a dictionary definition of "sex organ" as including the external genitalia.

During a conference on jury instructions, the defendant objected to the instruction defining "penetration." Counsel for defendant argued that the statutory definition was so vague as to deny "due process" of law in that the legislature had defined "penetration" as "contact," which is contrary to the common and ordinary meaning of the term.

The foregoing constituted the only objections to the aggravated criminal sexual assault statute. Each objection was specific as to the definitions or lack of definitions of a term included in the statute. In his post-trial motion, the defendant attacks the constitutionality of the criminal sexual assault law of 1984 and particularly the aggravated criminal sexual assault provision (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 12-14), which sets forth a number of aggravating circumstances which create the crime of aggravated criminal sexual assault. In his post-trial motion, the defendant reiterates his claim that the definition of "penetration" in the statute is unconstitutionally vague but then launches into a new attack on the statute by arguing that although under the new law aggravated criminal sexual assault is punished as a Class X felony, it has a lesser mens rea than criminal sexual abuse (Ill. Rev. Stat., 1984 Supp., ch. 38, pars. 12-15, 12-16), which is punished as a misdemeanor.

The provisions of the criminal sexual assault law of 1984 will undoubtedly be tested as to their constitutionality, but in the instant case there has been preserved for review by this court only the question as to whether the definition of the word "penetration" as found in section 12-12(f) of the Criminal Code of 1961 (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 12-12(f)), is so vague as to deny due process of law.

The provision of the new act which defines penetration reads as follows:

"(f) `Sexual penetration' means any contact, however, slight, between the sex organ of one person and the sex organ, mouth or anus of another person, or any intrusion, however slight, of any part of the body of one person or of any animal or object into the sex organ or anus of another person, including but not limited to cunnilingus, fellatio or anal penetration. Evidence of emission of ...


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