APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION
519 N.E.2d 1102, 166 Ill. App. 3d 491, 116 Ill. Dec. 887 1988.IL.201
Appeal from the Circuit Court of Cook County; the Hon. John W. Crilly, Judge, presiding.
JUSTICE LINN delivered the opinion of the court. McMORROW and JOHNSON, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINN
After a bench trial in the circuit court of Cook County, the trial court entered a verdict of guilty but mentally ill against defendant, Harold Fosdick, for the following crimes against his daughter: rape (Ill. Rev. Stat. 1983, ch. 38, par. 11-1), indecent liberties with a child (Ill. Rev. Stat. 1983, ch. 38, par. 11-4(a)(1)), aggravated incest (Ill. Rev. Stat. 1983, ch. 38, par. 11-10(a)(1)), sexual abuse of a child by a family member (Ill. Rev. Stat. 1983, ch. 38, par. 11-11.1(a)(2)), and child pornography (Ill. Rev. Stat. 1983, ch. 38, par. 11-20.1(a)(1)(i)).
Defendant was convicted also of the following crimes against his son: deviate sexual assault (Ill. Rev. Stat. 1983, ch. 38, par. 11-3), indecent liberties with a child, aggravated incest, and sexual abuse of a child by a family member. The trial court sentenced defendant to concurrent prison terms ranging from 5 to 25 years for all of his convictions.
On appeal, defendant contends that (1) the trial court should have dismissed the indictments because a previous prosecution adjudicated a factual issue in his favor that was necessary for a conviction in the instant case, (2) the State failed to prove the element of force or threat of force required for a conviction, (3) he was criminally insane at the time of the offenses, and (4) the trial court erred in sentencing him on multiple convictions arising from a single act.
We affirm in part and vacate in part.
On February 20, 1984, defendant was charged by criminal complaint in the circuit court of McHenry County with substantially the same offenses as in the instant case, in addition to aggravated battery against his son. These offenses occurred in McHenry, Illinois, on December 31, 1983, January 1, 1984, and January 22, 1984. On June 8, 1984, the trial court found that defendant was unfit to stand trial. (Ill. Rev. Stat. 1983, ch. 38, par. 104-23(b).) On August 23, 1984, the trial court held a discharge hearing (Ill. Rev. Stat. 1983, ch. 38, par. 104-25), in which defense counsel and the prosecutor stipulated as to the various depraved acts of intercourse and oral and anal sodomy that defendant committed against his daughter and son. Defense counsel and the prosecutor stipulated also as to psychiatric testimony concluding that defendant was criminally insane for the years 1983 and 1984.
At the close of the hearing, the trial court found defendant not guilty by reason of insanity. (Ill. Rev. Stat. 1983, ch. 38, par. 104-25(c).) The trial court thereafter ordered defendant to the Department of Mental Health and Developmental Disabilities as an inpatient. (Ill. Rev. Stat. 1983, ch. 38, par. 1005-2-4(a).) The record further shows that defendant was admitted to a mental health facility on September 5, 1984.
In the instant case, a Cook County grand jury indicted defendant on February 23, 1984. The offenses of which defendant was accused occurred on December 2, 1983, February 6, 1984, and February 7, 1984. The Cook County circuit court found defendant fit to stand trial, which began on October 29, 1985. The State's case was essentially that on the dates listed in the indictments, defendant committed various depraved acts of intercourse and oral and anal sodomy against his daughter and son. The indictments accused defendant also of photographing his daughter and another having intercourse. Witnesses for the State were defendant's ex-wife, both victims, an acquaintance of defendant's, and two youth officers of the Chicago police department.
Defendant's case was essentially that he was criminally insane for all of the years 1983 and 1984, including the three dates listed in the indictments. Defense witnesses were the two psychiatrists who testified at defendant's discharge hearing in McHenry County. Each psychiatrist reaffirmed his Conclusion that defendant was criminally insane during the dates listed in the indictments. In rebuttal, the State presented ...