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06/22/87 the People of the State of v. Jerry Gutierrez

June 22, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

JERRY GUTIERREZ, DEFENDANT-APPELLANT

FOLLOWING A JURY TRIAL, THE DEFENDANT, JERRY GUTIERREZ, WAS CONVICTED OF TWO COUNTS OF AGGRAVATED CRIMINAL SEXUAL ASSAULT (ILL. RE

v.

STAT. 1985, CH. 38, PARS. 12-14(A)(2), 12-14(B)(2)), AND SENTENCED TO TWO CONCURRENT 10-YEAR TERMS OF IMPRISONMENT.



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

509 N.E.2d 787, 156 Ill. App. 3d 555, 109 Ill. Dec. 126 1987.IL.868

Appeal from the Circuit Court of Will County; the Hon. Angelo F. Pistilli, Judge, presiding.

APPELLATE Judges:

JUSTICE SCOTT delivered the opinion of the court. BARRY, P.J., and HEIPLE, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCOTT

The evidence at trial established the following. Twelve-year-old Laura Oviedo had been hospitalized for behavioral problems, drug use and lying. On July 13, 1985, she had permission to go home. At 10:30 a.m. that day, she accompanied her cousins to their house. They watched television for 15 minutes, returned to Laura's for permission to attend a baseball game and then went back to her cousins' home. At approximately 11:30 a.m., Laura rode a bicycle to the Martinez grocery. As Laura approached the grocery, she saw her acquaintance, the 15 year-old defendant, across the street. He informed her that her brother awaited her in the alley. They walked across a vacant lot to the alley where the defendant approached her and pushed her down. Her head struck a rock as she fell to the ground on her back. The taller, heavier defendant pinned her arms and punched her stomach when she struggled. Laura saw the defendant pull down his shorts and felt him pull her shorts aside and insert his penis into her vagina. She felt pain, as she had never previously had intercourse.

Despite her shock and fear, Laura poked the defendant in his eye and escaped to her bicycle. Laura rode a short distance, but when she saw the defendant following her, she became afraid and stopped near a tavern. After she tripped over a brick, the defendant found her and threatened her life with a broken beer bottle. Laura kicked him and again ran to her bicycle. She rode several blocks but then fell off her bicycle. Her mother Margarita, who had been searching for Laura, arrived momentarily and took Laura to her aunt's to await an ambulance.

Dr. Janice Smith treated Laura in the Silver Cross Hospital emergency room. Dr. Smith found that Laura's cervix was bloody and the posterior portion of her hymen was stretched, bruised, swollen and bleeding. Laura also had a pubic hair in the deepest ridges of her bloody vaginal vault. Her left breast was freshly bruised. Her right thigh was scratched. Her underwear and aqua shorts were heavily bloodstained. The back of her white top was soiled. A head hair consistent with the defendant's was found on Laura's clothes. Dr. Smith opined that something had forcibly penetrated Laura's vagina within the past six hours. No seminal fluid was detected on Laura's vaginal swab but a trace amount was discovered on her rectal swab.

Because she feared the defendant, Laura lied to a nurse and three police officers about what had happened and accused another of committing the offense. She, however, subsequently identified the defendant as the offender from photographs.

The defendant admitted to Detective Terry Mazur that he knew Laura's age when he forcibly, sexually assaulted her but accused her of bruising his neck with a "hickey." The defendant later contradicted that statement and at trial testified that Laura had visited him at his home on the morning of the offense, lured him into his basement, and given him a "hickey." The defendant denied having intercourse with Laura and explained that he had been coerced to untruthfully confess.

Various witnesses verified that a young girl on a bicycle visited the defendant on the morning of the offense. Domingo Contreras and the defendant's mother, Carmen Hernandez, stated that that girl was not wearing the shorts taken from Laura in the hospital. Both Carmen and the defendant's sister, however, thought the girl could have been Laura. Carmen and the defendant's sister-in-law both noticed later that day that the defendant had a "hickey."

Initially, we address the defendant's argument that one of his two convictions based on the same physical act should be vacated. The State agrees and elects to retain the conviction based on bodily harm.

In count I, the defendant was charged with aggravated criminal sexual assault for knowingly causing Laura bodily harm on July 13, 1985, in violation of section 12-14(a)(2) of the Criminal Code of 1961 (the Code) (Ill. Rev. Stat. 1985, ch. 38, par. 12-14(a)(2)). Count II charged the same offense in violation of section 12-14(b)(2) of the Code because the defendant was under 17 years of age and Laura's age was between 9 and 13. Ill. Rev. Stat. 1985, ch. 38, par. 12-14(b)(2).

A defendant is prejudiced if more than one offense is carved from the same physical act. (People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838.) The record establishes that only one act of sexual penetration occurred. We find that only one conviction may stand and, therefore, vacate the defendant's count II conviction and affirm the defendant's count I conviction for aggravated criminal ...


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