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03/17/88 the People of the State of v. Bertha Flores

March 17, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

BERTHA FLORES, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

522 N.E.2d 708, 168 Ill. App. 3d 284, 119 Ill. Dec. 46 1988.IL.377

Appeal from the Circuit Court of Cook County; the Hon. Fred G. Suria, Judge, presiding.

APPELLATE Judges:

JUSTICE McMORROW delivered the opinion of the court. JOHNSON and LINN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCMORROW

Following a bench trial, defendant Bertha Flores was convicted of aggravated battery of a child (Ill. Rev. Stat. 1985, ch. 38, par. 12-4.3) and sentenced to four years' imprisonment. Defendant argues on appeal that: (1) her conviction must be reversed because the State failed to prove her guilty beyond a reasonable doubt and did not show that she was 18 years old or older, (2) she is entitled to a new trial because the preclusion of a material defense witness abridged her sixth amendment right to compulsory process or constituted an abuse of discretion, and (3) she is entitled to a new sentencing hearing because the trial court sentenced her based on improper considerations. We affirm.

Background

On July 8, 1984, while defendant was bathing her six-week-old daughter, Cecelia Flores (Cecelia), the child was severely burned, on over 40% of her body, on her upper thighs, arms, chest, abdomen, sides, and back. She suffered life-threatening partial deep thickness burns (formerly referred to as second degree burns) over approximately 30% of her body.

Defendant testified that she put Cecelia in the kitchen sink to bathe her. She supported Cecelia with her left hand and bathed Cecelia with her right hand. There was one faucet in the sink and no plug, stopper, or anything to keep the water in the sink. The water flowed from the faucet into the sink and down the drain except for a "little bit" of water that accumulated in the drain.

Defendant's testimony indicated that Cecelia was held under the faucet so the "stream hit in the chest" or the shoulder. The water was almost always hitting Cecelia. As defendant was shampooing Cecelia, about halfway through the bath, she heard a noise like air inside the faucet. The water pressure surged for almost a minute, then resumed normal flow. Defendant felt no change in the water's temperature. She explained she did not feel the water's temperature because while the water was hitting the baby's chest, her left hand was supporting the child from behind and her right hand was bathing the child. When she felt the water falling on the baby's chest, defendant stated it "didn't feel too hot [but] possibly for the baby it was too hot." Defendant testified that Cecelia was crying a little more than usual, but she always cried "violently" and moved her hands during her bath. The difference "wasn't too great." However, as defendant began to dry Cecelia, she noticed the skin on her daughter's arm "was pulling." Defendant called to Jose Flores (Jose), Cecelia's father, and told him Cecelia had been burned. Cecelia's skin was "inflating and blowing up" not only on her arm but on her chest. Jose took defendant and Cecelia to Columbus Hospital.

After the staff of Columbus Hospital gave Cecelia preliminary treatment, they transferred her to the burn unit at Wyler's Children's Hospital. Before transferring Cecelia, Dr. Sumidhra Kommareddy spoke with defendant for 30 to 45 minutes through an interpreter. Defendant stated to Dr. Kommareddy that she put Cecelia into a "bathtub [that] was full of hot water." Defendant claimed she did not know the water was too hot and that as soon as she realized it she immediately pulled Cecelia out of the water. Dr. Kommareddy concluded that defendant's account of Cecelia's bath was inconsistent with the distribution of Cecelia's burns. If Cecelia had been immersed in a bathtub of hot water, she would have burned not only her stomach and chest but her hands and legs as well.

Dr. Kommareddy admitted that she did not understand or speak Spanish and had to speak with defendant through an interpreter. According to defendant, the interpreter spoke a different type of Spanish than she spoke and translated haltingly, stopping often to think while interpreting. Defendant denied using the word "bathtub." She asserted that the interpreter misunderstood her statement about where she bathed Cecelia and translated it inaccurately.

At Wyler's Children's Hospital, Dr. Lawrence Gottlieb, co-director of Wyler's Burn Unit, supervised Cecelia's treatment. Dr. Gottlieb stated that Cecelia's injury was "consistent" with a scald burn. He explained that water heated to 150 degrees could inflict burns such as Cecelia's in one second, while water heated to 120 degrees would inflict such burns in one to two minutes. A hot bath would not have burned a child on the chest and stomach without also burning her legs, according to Dr. Gottlieb. Therefore, he concluded it was "impossible" for Cecelia's burns to have been caused by immersion in a hot bath. Dr. Gottlieb testified that Cecelia's burns were most likely the result of water falling onto her.

Although Cecelia's back was "clearly burned" on both sides, there was a patch of unburned skin on her back running diagonally from her upper right shoulder to her lower left back. Dr. Gottlieb thought that could indicate an arm holding the child. However, because there were burns above and below the unburned skin, he concluded that "without question" the arm would "have been burned or hot at least." While it is "plausible" that someone could have held Cecelia from behind as the water was scalding her and not receive any injuries, that person would have had to feel the change in temperature, according to Dr. ...


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