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07/26/89 the People of the State of v. Donald Wyatt

July 26, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

DONALD WYATT, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

542 N.E.2d 872, 186 Ill. App. 3d 772, 134 Ill. Dec. 526 1989.IL.1147

Appeal from the Circuit Court of Cook County; the Hon. Robert Cahill, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE FREEMAN delivered the opinion of the court. WHITE and CERDA, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN

Defendant, Don F. Wyatt, *fn1 appeals from a sentence entered against him after he was charged with and pleaded guilty to aggravated criminal sexual abuse. On appeal defendant contends that the trial court improperly considered the victim's age in aggravation of the sentence and improperly refused to consider in mitigation that defendant was beaten and raped in jail, and that the four-year sentence is excessive.

For the reasons stated below, we affirm the judgment of the circuit court.

Defendant was charged by information with one count of aggravated criminal sexual abuse upon a victim under 13 years of age. (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 12-16(c)(1).) Defendant entered a plea of guilty and waived his right to a jury or bench trial. The parties stipulated that the State would prove defendant guilty beyond a reasonable doubt. The parties also stipulated that defendant was 43 years old on the date of the incident. Further, the parties stipulated that the sworn testimony of the victim, her parents, investigating police officers, and medical personnel would show the following.

The victim would testify that on November 26, 1984, around 4:30 p.m. in Streamwood, Illinois, she went to the residence of defendant, her next-door neighbor. The victim, six years old, and her younger sister entered defendant's home. The sister went into the kitchen. The victim walked into the hallway and upon defendant's request entered the bedroom. Defendant asked the victim to get onto the bed and lie down, which she did. Defendant lifted her skirt and pulled down her tights and underpants. Defendant told her that "it should be wet, not dry" and placed his mouth on the victim's vaginal area. Defendant then fondled the victim's vaginal area with his fingers. The victim's sister entered the bedroom, and defendant told her to stay out and close the door. Defendant then inserted his finger into the victim's vagina and the victim told him, "Stop. It hurts." Defendant removed his finger and helped the victim pull up her underpants and tights. Defendant then left the bedroom and told the victim not to tell anyone of the incident.

Streamwood police investigator Edward Burke would testify that he spoke to defendant in the presence of Officer Zinkel on November 27, 1984. After being advised of his Miranda rights, defendant stated that between 4 and 4:30 p.m. on November 26, 1984, he asked the victim and her sister to come into his home. While in the living room, the victim was sitting on his lap, and he began rubbing her belly "like he always does" and then placed his hand under her dress and underwear and rubbed her vaginal area. Defendant then followed the victim into the bedroom, where she stated, "It is dry, and it should be wet." When the victim got up on the bed and lay down, she pulled down her tights and underwear. When asked why he did not stop her from doing so, defendant stated, "I really don't know," and began to cry. Defendant also stated, "I know I have a problem." He stated that he did not touch the victim with his hand or mouth while in the bedroom.

Streamwood police personnel and the victim's mother would testify that the victim was taken to the hospital late in the evening of November 27, 1984, where she was examined by Dr. Bartush and Nurse Cheryl Bogdanowski. Bartush and Bogdanowski would testify that the victim complained of sexual assault. Bartush's examination revealed a mild bruising of the inner area of the vaginal area, for which the victim was treated.

After the stipulated testimony was admitted, a sentencing hearing was held. The State first called witnesses in aggravation of the offense. Police officer Kathleen Zinkel testified that she spoke with the victim in the victim's home on November 27, 1984, in the presence of the victim's mother, Detective Burke, and an assistant State's Attorney. The victim told Zinkel that the day before, defendant invited her and her sister to come into his home. It was common for defendant to invite the children over. Her sister went into the kitchen while the victim sat on defendant's lap in the living room. Defendant rubbed her stomach and vaginal area with his hand. Defendant then asked her to follow him into the bedroom and get on the bed. The victim's report of the incident in the bedroom is substantially the same as set forth above as the victim's stipulated testimony. After the incident in the bedroom, the girls walked outside and defendant called them back and said that if their mother asked about what occurred, to tell her that defendant walked in on the victim while she was going to the bathroom. Zinkel also stated that the victim demonstrated what happened by using anatomically correct dolls supplied by the police. On cross-examination, Zinkel stated that while defendant was interviewed at his home and at the police station, he offered no violence and was cooperative. Defendant also cried at one point and stated that he needed help.

The victim's mother testified that on November 26, 1984, her husband had left on a business trip. Around 6 p.m., she was making dinner. The victim was exceptionally quiet. Defendant rang the doorbell, came in and asked if he could see the Christmas lights in the front window and asked how they were put up. The victim said nothing when defendant entered the house. Defendant took a quick look at the lights and left. The victim's mother stated that defendant seemed very surprised to see the mother. The mother put her children to bed after dinner and got into her own bed, where her youngest daughter also lay down. The daughter asked, "m I supposed to be wet?" The mother asked her to explain, and the girl stated that an incident had occurred between defendant and the victim. The mother approached the victim and questioned her regarding the incident. The mother called the police and also took the victim to the hospital.

The mother stated that defendant had moved in next door to her family four or five months earlier. Relations between the families prior to the incident were friendly, and it was not uncommon for the children to visit defendant's home. Since the incident, the victim has had nightmares in which wolves were trying to get her. The victim would constantly watch defendant's home and would hide from him. Prior to the incident, the victim had not complained of nightmares. Also since the incident, the victim's teachers informed the mother that the victim would stare into space. The parents had a ...


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