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10/18/89 the People of the State of v. Alvin Hanserd

October 18, 1989





545 N.E.2d 1037, 189 Ill. App. 3d 924, 137 Ill. Dec. 276 1989.IL.1641

Appeal from the Circuit Court of Winnebago County; the Hon. Harris H. Agnew, Judge, presiding.


JUSTICE WOODWARD delivered the opinion of the court. UNVERZAGT, P.J., and DUNN, J., concur.


Defendant, Alvin Hanserd, was convicted of criminal sexual assault under section 12-13(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 12-13(a)(1)), after a bench trial before the circuit court in Winnebago County. Defendant was sentenced to an extended prison term of 20 years. The extended term was imposed because the trial Judge found the victim to be physically handicapped for the purposes of section 5-5-3.2(b)(3)(iii) of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005-5-3.2(b)(3)(iii) (superseded by Pub. Act 85-691, § 2, eff. January 1, 1988)). We note here that the defendant elected to be sentenced under the version of the statute in effect at the time of the commission of the offense, namely, September 11, 1986. In what appears to be a case of first impression, the question on appeal is whether the trial court's imposition of an extended sentence was improper.

At the trial, the victim and defendant testified to different versions of the facts. According to the victim she had been awakened by the defendant's telephone call late on the night of September 10 or in the early morning on September 11, 1986. The defendant had previously worked with the owner of the house, Robert Rockwood, in an early morning newspaper-distribution business, and he had met the victim through this employment a couple of times when he would pick up his paycheck. The victim was engaged to Mr. Rockwood's son, Johnathan. She told defendant not to come to the house. After the telephone conversation, she went back to bed, but she did not lock the door to the house. Early in the morning, she heard a noise, got out of bed, saw the defendant's car, and was startled when defendant walked through the living room door. The victim testified that defendant hugged her and pushed her down on the couch, but she protested and said, "Get off of me." He took off her pants, although she tried to push him off her. The sexual assault then occurred.

Testifying on his own behalf, defendant denied forcing any sexual acts upon the victim. He stated that she willingly took part in all sexual acts that occurred between them.

Other evidence adduced at trial indicated that the victim was born deaf and attended the Illinois School for the Deaf for seven years. At the time of the commission of the crime in question she was almost 20 years old and was hearing impaired, but she had the ability to speak with her own voice. In 1986 she had surgery on her mouth which had given her trouble in speaking coherently. It was stipulated into the record that the victim had scored a 76 on the Weschler Adult Intelligence Scale, that her intelligence level was "borderline," being the highest of five levels of subaverage intelligence, and that she was described as educably mentally retarded. Goodwill Industries felt that she had inadequate social skills to sustain employment with it.

During the trial, the victim testified through the use of two interpreters. The first interpreter translated questions posed into sign language. The second interpreter translated the sign language into the idiomatic and conceptual sign language that the victim could understand. The victim would then respond in her sign language, which was then translated by the second interpreter, and then into English by the first interpreter. The State argued that it was virtually impossible to translate exactly word for word from spoken English into sign language, and thus, two interpreters were needed. (See People v. Vandiver (1984), 127 Ill. App. 3d 63, 68.) However, when asked, the victim gave her responses in spoken English. Spoken responses were used when she repeated the words she had told the defendant on the night of the incident and when she affirmed her ability to speak. In addition, the court did not allow leading questions because she had shown no inability to answer questions despite her limited hearing and mentality. The defense waived its objection to the use of the interpreters when the State stipulated that the victim had some speech capabilities and some communication skills.

After the close of the evidence, the court found the defendant guilty. At the sentencing hearing, January 11, 1988, the court asked for the State's position on section 5--5--3.2(b)(3)(iii) regarding a "person handicapped at the time of the offense." The State moved for the imposition of an extended-term sentence. Further, the State alleged that it was "conceivable" that, had the victim possessed normal hearing, she could have heard the defendant earlier and locked the house door before he could have entered and thus, she was impaired from avoiding or preventing the offense.

The court did not comment on this speculation. In finding an extended sentence appropriate, the court below stated:

"The Court has listened closely to the arguments concerning extended term eligibility and would find that based upon the victim's suffering a permanent speech and hearing disability and a permanent intelligence disability -- she was found to be borderline intelligence, educably retarded -- the Court would, then, find the victim has suffered permanent and disabling physical characteristics.

The victim was physically handicapped at the time of the offense within the meaning of the statute. That the defendant is eligible for extended term sentencing for the particular offense involved. I would make these comments towards the extended term; a girl with a hearing disability, speech disability, an intelligence ...

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