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11/08/89 the People of the State of v. Lavern Heidelberg

November 8, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

LAVERN HEIDELBERG, DEFENDANT-APPELLANT

DEFENDANT WAS CONVICTED IN A BENCH TRIAL OF CRIMINALLY SEXUALLY ASSAULTING HIS STEPDAUGHTER, LEVITA, IN VIOLATION OF SECTION 12-13(A)(3) OF THE CRIMINAL CODE OF 1961 (ILL. RE

v.

STAT. 1987, CH. 38, PAR. 12-13(A)(3)).



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

546 N.E.2d 1139, 190 Ill. App. 3d 743, 138 Ill. Dec. 84 1989.IL.1753

Appeal from the Circuit Court of St. Clair County; the Hon. Lloyd A. Karmeier, Judge, presiding.

APPELLATE Judges:

JUSTICE HOWERTON delivered the opinion of the court. HARRISON and GOLDENHERSH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HOWERTON

LeVita testified that she had sexual intercourse with defendant in mid-June 1987. She also testified that she had had sexual contact with defendant since she was nine years old and sexual intercourse with him on a regular basis since she was 11. She testified that defendant had promised not to "mess with" LeVita's younger sister as long as LeVita told no one about their sexual relationship., Defendant confessed, and his signed written statement was admitted into evidence. The statement said in part:

"Mr. Heidelberg stated that he did have sex with his step daughter LaVitta [ sic ] age 16. . . . He stated that he was in the bed and that she came in and layed [ sic ] on the floor next to the bed. The Juvenile then took off her cloth [ sic ] and got in the bed with him. Mr. Heidelberg stated that he became weak and had sex with her.", Defendant, sentenced to nine years in the Department of Corrections, appeals. We affirm.

Defendant first argues that the criminal sexual assault statute is unconstitutional because criminal sexual assault, which is punished as a Class 1 felony, requires no mental state while the less culpable offense of criminal sexual abuse, which is punished as a Class A misdemeanor, requires an intentional or knowing touching done for purposes of sexual gratification or arousal. (See Ill. Rev. Stat. 1987, ch. 38, pars. 12-12(e), (f).) In support of his argument, defendant relies on People v. Wick (1985), 107 Ill. 2d 62, 65, 481 N.E.2d 676, 678, wherein the supreme court of Illinois found that the aggravated arson statute was constitutionally infirm because aggravated arson, which is punished as a Class X felony, required a "lesser degree of malice or unlawful purpose" than simple arson, which is punished as a Class 2 felony.

Defendant's argument, however, has been fully discussed and rejected by the Illinois Supreme Court. (People v. Terrell (1989), 132 Ill. 2d 178.) Accordingly, we follow the analysis in Terrell and hold that a mental state of either intent or knowledge will be implied for offenses involving sexual penetration and that the statute, therefore, does not punish innocent conduct or set up an unconstitutional anomaly between the lesser and greater offenses. People v. Terrell (1989), 132 Ill. 2d 178, 210.

Defendant next argues that the circuit court erred in admitting hearsay from Roberta Heidelberg, LeVita's mother and defendant's wife, and from Dr. Susan Heney, LeVita's examining physician, as to what LeVita told them about sex between defendant and her.

Roberta's testimony is examined first. The record is:

"Q. Did you happen to have a conversation with your daughter LeVita about her acts that happened between your husband and her?

MR. TRENTMAN: Your Honor, I'm going to object to the form of the question, where he's asking -- in essence he's asking the ...


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