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04/29/88 the People of the State of v. Sherleen Rodriguez

April 29, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

SHERLEEN RODRIGUEZ, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

523 N.E.2d 185, 169 Ill. App. 3d 131, 119 Ill. Dec. 717 1988.IL.639

Appeal from the Circuit Court of Lake County; the Hon. Fred A. Geiger, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE LINDBERG delivered the opinion of the court. WOODWARD and UNVERZAGT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINDBERG

Defendant, Sherleen Rodriguez, appeals from her conviction of child abduction (Ill. Rev. Stat. 1985, ch. 38, par. 10-5(b)(1)). After a jury trial, defendant was found guilty of violating a court order by concealing her daughter from her former husband, the custodial parent, Jose Rodriguez. The court sentenced defendant to three years' imprisonment. On appeal, defendant contends that the State failed to prove beyond a reasonable doubt that she acted with the intent to violate a valid court order, that she concealed her daughter, Leticia, and that a valid court order existed.

According to Jose's testimony, he married the defendant in 1974, and they were divorced in 1976. The trial court awarded defendant custody of Leticia, who was born in 1975, ordered Jose to pay $25-per-week child support, and provided Jose with visitation rights. When Jose attempted to visit Leticia, defendant's second husband beat him. In July 1977, Jose told the defendant that he would try to get custody of Leticia. On February 16, 1978, the court entered an order awarding Jose custody. Defendant communicated with Jose by mail and telephone after she received the court order. Defendant refused to disclose where she and the child were residing. During one conversation, Jose informed defendant that he obtained a court order awarding him custody of Leticia. Defendant responded, "You will never get her anyway."

Jose did not know where defendant was living and had not seen her or Leticia until 1981. In 1981, Jose arrived at Helen Hanni's home and discovered defendant and Leticia visiting. After that encounter, Hanni arranged for Jose to visit Leticia three times in 1982.

On March 31, 1982, Jose filed a habeas corpus petition for the return of his daughter, relying on the previous custody order. Defendant responded by moving to vacate the custody order based on her assertion that the notice of defendant's petition for visitation was not sent to her residence in Texas. Defendant claimed that Jose knew her whereabouts but failed to give her notice of the hearing. Jose testified that defendant went to court on one scheduled day for resolution of the habeas corpus petition and shouted at his current wife, Dina. Defendant never returned to court, and the court never ruled on Jose's petition or defendant's motion to vacate.

Jose also testified that defendant telephoned him on July 23, 1982, requesting him to "get off her back." Jose related to the defendant that he had custody of Leticia, but defendant told him that he would never see her again. Defendant claimed that the order was invalid since she was in Texas at the time the order was issued. Further, defendant indicated that she would hide Leticia by constantly moving. If Jose attempted to see Leticia, defendant threatened to "blow his brains out."

An attorney in Portland, Oregon, requested Jose to retrieve Leticia as her mother was in jail. Jose brought Leticia to live with him and Dina until February 17, 1983, when defendant took Leticia away from him.

Dina testified that Leticia walked to school on February 17, 1983, but did not return home at 2:30 p.m. Defendant telephoned Dina that afternoon stating, "I am Lettie's mom and I take Lettie because she is my baby." Twenty minutes later, defendant telephoned again and proceeded to call Dina names.

Officers Fermaint and Woolbright located Leticia on April 28, 1986, and arrested the defendant. While Officer Fermaint advised the defendant of her rights, defendant used vulgar language describing Jose. Defendant told the officer that she had arranged with Leticia that if they were separated, Leticia would run away from Jose and call her so she could get her. Additionally, defendant stated that Jose had no legitimate right to Leticia even though she knew a court order awarded Jose custody because she had not appeared in court. Defendant indicated that she was served with documents while she was living in the State of Washington which stated that Jose had custody of Leticia. Jose came to Washington and brought Leticia to his home in North Chicago. About one month later, defendant went to North Chicago and noticed Leticia walking to school, so she took Leticia and left the city. After the arrest, defendant informed the officer that Leticia, instead of keeping her appointment with a counselor, telephoned defendant for defendant to get her.

Mario Perez, an attorney, testified that he represented Jose in a custody matter and in a support action against him brought by the Department of Public Aid. Perez learned that defendant initially had custody of her daughter, but in 1977, Jose petitioned the court because he was not getting the visitation rights pursuant to a prior order. According to Perez, he sent a notice of motion to defendant and her attorney of record that on December 12, 1977, Judge Kaufman was going to hear arguments on Jose's petition for a rule to show cause why defendant should not be held in contempt of court, for permission to take Leticia to Mexico in 1978 for one month, for an injunction against defendant enjoining her from removing Leticia from the court's jurisdiction, and for such other relief as the court deemed appropriate. Without further notice, the court continued the matter for hearing until January 9, 1978. Jose retained another attorney, Steve Carmick. On January 12, 1978, the court entered an ...


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