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11/05/87 the People of the State of v. Roy W. Pluskis

November 5, 1987





515 N.E.2d 480, 162 Ill. App. 3d 449, 113 Ill. Dec. 671 1987.IL.1645

Appeal from the Circuit Court of Vermilion County; the Hon. Robert J. Steigmann, Judge, presiding.


JUSTICE GREEN delivered the opinion of the court. SPITZ, P.J., and McCULLOUGH, J., concur.


On November 19, 1986, following a jury trial in the circuit court of Vermilion County, defendant, Roy W. Pluskis, was convicted of two counts of aggravated criminal sexual assault against two of his daughters. He was subsequently sentenced to consecutive terms of 20 and 30 years' imprisonment with credit for 334 days previously served. On appeal, defendant maintains (1) the trial court erred in allowing two physicians, under the physician-patient exception to the hearsay rule, to repeat statements made by the complainants identifying their assailant; (2) the 30-year sentence was unduly disparate to the 20-year sentence where there was no evidence to differentiate the nature and circumstances of the offenses; and (3) the trial court erred in denying defendant sentence credit on both sentences for time spent in jail prior to conviction. We affirm.

At trial, defendant's daughters, who were then six and eight years of age, each testified (1) defendant had placed his finger and his penis into her vagina on more than one occasion, while they lived in "the green house"; and (2) she had reported defendant's conduct to Carol Server, a probation officer assigned to monitor the custody of the children. The older girl indicated that a seven-year-old female cousin had also placed her fingers in both girls' vaginas on more than one occasion. The children's foster parents testified (1) custody of the children was transferred to them in 1981; (2) custody was transferred to defendant and Adrienne Pluskis, the children's natural parents, in June 1985; (3) the children were living with defendant and Adrienne in a green-colored house in Danville in July 1985; and (4) the foster parents regained custody of the children in October 1985.

Carol Server indicated at trial that she saw the children in July 1985, while they were living in "the green house" and did not see them again until October of that year when she transported them from Kentucky to Champaign. In response to the State's questioning, she indicated that the children did not tell her about anything that happened between them and defendant.

Dr. Kathleen Buetow testified at trial that she had examined the two girls on October 7, 1985, for "school physicals." She said that both girls had vaginitis, chronically infected vaginal tracts, "markedly" abnormal discharge and torn hymenal rings. She said that they each had a "significantly" wider than normal introitus, or opening to the vagina. She testified that following her examination, she concluded that both girls had been sexually abused and that "someone" had placed an object, wider than a finger, into their vaginas sometime between two weeks and six months prior to the examination. Dr. Buetow further testified that prior to conducting the physical examination, she had obtained an oral history from the children. Over defense objection, she testified that the children indicated to her that they had been touched in the vaginal area by defendant.

Dr. Ronald Howard testified that he examined the children in Kentucky on September 20, 1985, at the request of a social worker. He said that both girls had vaginitis and in both cases the hymenal ring was torn and broken. He concluded that the children were suffering from vaginal trauma that could be related to sexual abuse. Howard was further allowed to testify, over defendant's hearsay objection, that he had taken an oral history from the younger child, and she told him that her father "put his finger in her bottom," and that of her older sister and her younger sister. She later told him she did not mean her rectum. The older sister confirmed what the younger one had said.

Adrienne Pluskis, the children's natural mother, testified that, although she had never observed defendant touch the girls in the vaginal area with either his penis or his fingers, she noticed defendant in bed with the older child "rocking [from] side to side" in the manner he preferred to have sexual intercourse with Adrienne. She further stated that the children sometimes made complaints that defendant played "too rough," and she had seen him on several occasions with his hands underneath their nightgowns. Mrs. Pluskis testified that she had been convicted of a felony and had been granted immunity from prosecution on the charges relating to the sexual abuse of her children. She also said that she had an agreement with the foster parents that she could visit the children as long as defendant remained in jail.

Defendant testified in his own behalf and denied involvement in the offenses charged. He said he often played with the girls and tickled them, but he never touched them in the vaginal area. Defendant admitted he had previously been convicted of a felony; however, the jury was not informed that the conviction related to the abduction of his children.

Defendant maintains on appeal that the statements made by the children to the physicians identifying defendant as their assailant was inadmissible hearsay. The trial court allowed the testimony on the basis that the statements pertained directly to the children's medical condition and treatment and were admissible under People v. Gant (1974), 58 Ill. 2d 178, 186, 317 N.E.2d 564, 569.

The court in Gant allowed statements of a presently existing bodily condition made by a patient to a doctor, because of the likelihood that such statements were made in order to receive the most effective treatment. The statements were deemed reliable, because the effectiveness of the treatment depended on the accuracy of the information provided. (People v. Gant (1974), 58 Ill. 2d 178, 186, 317 N.E.2d 564, 569.) That court also indicated that the exception to the hearsay rule permitted a physician to testify to statements made by the patient, including statements concerning ...

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