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05/18/87 the People of the State of v. Matias Ortiz

May 18, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

MATIAS ORTIZ, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

508 N.E.2d 490, 155 Ill. App. 3d 786, 108 Ill. Dec. 329 1987.IL.645

Appeal from the Circuit Court of Du Page County; the Hon. Edward W. Kowal, Judge, presiding.

APPELLATE Judges:

JUSTICE NASH delivered the opinion of the court. DUNN and HOPF, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH

After a jury trial defendant, Matias Ortiz, was convicted of aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12-14(b)(1)) and sentenced to a term of 25 years' imprisonment. He appeals, contending (1) the aggravated criminal sexual assault statute is unconstitutional; (2) the jury was not properly instructed; (3) the admission of evidence relating to defendant's prior conviction was error; and (4) that he was denied effective assistance of counsel in trial.

On August 30, 1985, Jenna, who was 8 1/2 years old, stayed overnight at the home of her friends, Tina and Trisha Van Hoose, and slept on a mattress on the floor of a bedroom. Defendant, who was Trisha's father and the fiance of Joyce Van Hoose, entered the bedroom at 5 a.m. and, according to Jenna, molested her.

Defendant was subsequently charged with two counts of aggravated criminal sexual assault and, at trial, Jenna testified that he came into the bedroom and knelt next to her mattress, then lifted her nightgown and hurt her by inserting his finger inside her vagina and anus. She kicked at him, and defendant left the room, after which Jenna went to the living room where Joyce Van Hoose (Tina and Trisha's mother) was sleeping and informed her of the incident. Jenna stated no one had ever touched her in that way before. On cross-examination, she testified that defendant did not hold her down on the mattress and no blood or other fluid emerged after the incident. Jenna did not tell her mother about the attack until several hours after she returned home the next day, and her mother did not examine her.

Janice Cagle, Jenna's mother, testified that after she learned of the incident, she called a social worker, Linda Sutton, who took Jenna to the police station. Cagle stated that, to her knowledge, Jenna's hymen had not been broken prior to this incident.

Dr. Paul Cole, an emergency room physician at Central Du Page Hospital, examined Jenna several days later on September 4, 1985. He testified that her hymen had a small tear which was large enough to admit the tip of a finger. Although such tears always result in bleeding, there was no evidence of bruises, scratches, or bleeding at that time. Dr. Cole stated that scratches and bruises may fully heal within four or five days. He further testified that the hymen of an 8-year-old girl has more blood flowing through it than that of an older woman and there was no evidence of blood in Jenna's urinary tract, which was not unusual if the tear had occurred four or five days prior to his examination.

David Day, an officer with the Carol Stream police department, testified that defendant told him that he was intoxicated and had suffered a blackout on the evening of August 30, 1985. On cross-examination by defendant's counsel, Day stated he had been a prison guard and was aware that defendant had recently been in prison. When defendant denied sexually assaulting Jenna, saying he "wasn't that kind of person," Day told defendant that he had information that defendant had pleaded guilty in a similar situation five years before to charges involving his daughter. On redirect examination by the State, Day testified that defendant had engaged in an incestuous relationship with his daughter for four years, until she was 13 years old, and that in September 1980, defendant's daughter and estranged wife reported him to the police, and defendant was arrested for aggravated incest. Defendant was convicted and was subsequently paroled from the State penitentiary in January 1985. On further examination by defendant's counsel, Officer Day testified that, according to the police reports, defendant said he had pleaded guilty at that time so that his family would not have to go through a trial.

Defendant testified in trial on his own behalf that he was intoxicated on August 30, 1985, and went to the apartment of Joyce Van Hoose, his fiancee, at approximately 1:30 a.m. Later that morning, he awoke to use the bathroom and mistakenly opened the door to the girls' bedroom. He walked in, stumbled over the mattress on the floor, and fell on top of Jenna. He stated Jenna seemed scared, and he apologized to her and left the room. He denied inserting his finger into her vagina or anus. Defendant further testified that on September 5, 1985, Detective Day had come by to speak with him and the officer appeared to be frightened of defendant and hated him. Defendant told Officer Day that Jenna's allegations were lies, but Day claimed that a doctor had found scratches and other evidence on Jenna. On cross-examination, defendant testified that Day believed defendant had molested Jenna because defendant had been convicted of a similar charge involving his daughter in 1980.

Anita Beal, a nurse, testified that Jenna told her during the September 4 examination that the man who had touched her had grabbed her and thrown her onto a bed.

Joyce Van Hoose testified that Jenna indicated she had merely been touched "up front and on the side of her right hip" and did not say that defendant had inserted his finger in her or had hurt her. Joyce Van Hoose stated that she was unable to find any blood or other discharge on Jenna's nightgown or mattress. On cross-examination, she stated that she had seen ...


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