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05/06/94 PEOPLE STATE ILLINOIS v. JOSEPH WEISS

May 6, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JOSEPH WEISS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Themis N. Karnezis, Judge Presiding.

Rehearing Allowed May 3, 1994. As Corrected August 4, 1994. Second Correction October 6, 1994.

Cousins, Jr., Murray, Gordon

The opinion of the court was delivered by: Cousins

JUSTICE COUSINS, JR. delivered the opinion of the court:

Following a bench trial in the circuit court of Cook County defendant was found guilty of four separate counts of criminal sexual assault (Ill. Rev. Stat. 1991, ch. 38, par. 12-13(a)(2), now 720 ILCS 5/12-13(a)(2)(West 1992)), and sentenced to an extended-term of 20 years' imprisonment and a consecutive term of 15 years. On appeal, defendant contends that (1) the State failed to prove he had knowledge of the victim's inability to understand the nature of the act or to give knowing consent and (2) the sentence should be reduced. For the reasons which follow, we affirm the convictions of two counts of criminal sexual assault, order vacatur of two counts of criminal sexual assault, vacate the sentence and reverse and remand for resentencing with directions.

BACKGROUND

The record shows that defendant was charged in a multi-count indictment with aggravated criminal assault and criminal sexual assault. The trial court found that the evidence did not establish that the sexual assaults were committed in an aggravated manner, but thereafter found defendant guilty of criminal sexual assault under section 12-13(a)(2) of the Criminal Code. (Ill. Rev. Stat. 1991, ch. 38, par. 12-13(a)(2), now 720 ILCS 5/12-13(a)(2)(West 1992)). Underthat section, criminal sexual assault occurs where one: "commits an act of sexual penetration and the accused knew that the victim was unable to understand the nature of the act or was unable to give knowing consent."

In this case, the victim was a 34-year-old man, who, according to the expert testimony provided by the State, was mentally retarded and functioning at the level of a four-year old child. This testimony particularly revealed that victim was suffering from chronic disorganized schizophrenia and psychogenic polydipsia (an uncontrollable desire to consume liquids, especially water).

The record further shows that the incident giving rise to the charges against defendant occurred in the Winston Manor Nursing Home on the northside of Chicago. The home was described as a residential nursing facility which served both physically and mentally disabled persons. At the time of the offense, the victim lived on the second floor which was reserved for severely mentally retarded patients. Defendant, who was recovering from broken legs and was in a wheelchair, resided on the fourth floor which was reserved for those capable of independent living.

At trial, the State called the victim, L.C., as its first witness. He recalled living at the home and testified that he knew defendant. He would not, however, identify him at trial. He also stated that when he was living at the home "nothing happened," but acknowledged that he had told other people that something did happen. When asked to relate the conversation he had with the prosecutor concerning that incident, L.C. stated that he did not want to tell the Judge about it and did not want to talk about it. L.C. then asked the court about the mask on his face. When the court told L.C. that he did not have a mask on his face, L.C. stated that he believed that he did, and no further questioning was attempted by either side.

Hubert Richardson testified that he was in the dining room of the facility about 11:30 p.m. on November 1, 1991, playing cards with S.R. White and Dominic Scudiero. He stated that defendant was also in the room at that time and was sitting on the opposite side drinking with Emma Shaw and Charles McClellan. At one point Richardson saw L.C., who was naked, run from behind the fish tank in the room. When defendant called him and L.C. went back to defendant, White left to seek help from the nursing staff. On cross-examination, Richardson stated that about five minutes before that, L.C. was clothed and he had approached the table where Richardson was playing cards and asked for a cigarette.

S.R. White testified that he was a resident in the facility inquestion and was also in the dining room when this episode took place. He had left the card game to get a package of cigarettes from his room on the third floor, and when he returned he saw L.C. walking around naked. After making this observation he went to the second floor to alert the nurses.

Helen Halley, a certified nurse's aid working at Winston Manor on the night in question, testified that she knew L.C., whom she described as "somewhat like a child," and was present when White came to the nurse's station and talked to her and Mary Ousley. After that conversation, the two women descended the stairway and entered the dining room. Halley testified that she observed L.C. nude and sitting in defendant's lap; defendant was holding L.C. around the waist, rocking him up and down on top of him.

When she and Ousley entered the room defendant pushed L.C. off of his lap. At that point she saw defendant's erect penis sticking out of his pants. When defendant was confronted with the situation, he said something like "Oh, shit" and "L.C. wanted this to happen, he was begging for cigarettes." In her mind, defendant was angry. L.C. on the other hand appeared frightened and was trembling. On cross-examination, she testified that L.C. talked to her, but that his conversation did not make much sense.

Halley also testified for the defense. She acknowledged that L.C. had asked her for cigarettes, but stated that he had not made any sexual comments or overtures to her, although she had heard him say things of this nature to Ousley. She also observed that when L.C. was in the dining room, he would pace back and forth and attempt to talk with other residents. On cross-examination Halley explained that L.C.'s conversation related to questions about food and activity in the room, but that his communication skills were not good and that he had difficulty conversing with people. She also explained that while the facility was divided into separate residential floor for the physically and mentally disabled, that all residents shared a common area. The second floor housed those with mental problems.

Dominic Scudiero testified that he lived on the fourth floor of Winston Manor and between 10:30 and midnight on the night in question, he was in the dining room playing cards with White and Richardson. Defendant, McClellan and Shaw were also in the room drinking. L.C. entered the room and asked him and those at his table for a cigarette. They refused to give him any because the facility forbade giving him anything to smoke or drink. After that, L.C. walked over to defendant and asked him for a cigarette. Defendant said "I will give you a cigarette if you take off all your clothes." L.C. then took off his clothes and defendant and the other two people athis table laughed. When L.C. asked if he could put his clothes on and indicating his fear, defendant told him not to worry because nothing would happen.

At this point Scudiero walked over to defendant and asked him why he would not let L.C. put his clothes on. Defendant responded that it was a joke, that they were only playing with him and that no one would get hurt. Scudiero then went back to his table and again heard L.C. ask if he could put his clothes on and telling defendant that he was afraid. Defendant said "Well, if you give me a blow job, I'll give you a pack of cigarettes." He then saw L.C.'s head go down into defendant's crotch and defendant unbuttoned his pants. He also saw defendant place his hands on top of L.C.'s head and L.C. moved up and down.

Scudiero then summoned the nurses on the second floor, and the three of them went down to the dining room. When they entered Ousley yelled at defendant and asked him what was going on. Defendant pushed L.C. off of his lap, and Scudiero observed that L.C. was totally naked, that defendant's penis was erect and that his pants were unbuttoned and zipped down. When defendant started to zip up his pants, he said "I don't care. I don't give a shit. I been there before." Meanwhile L.C. went over and stood by the piano where he cried and shook badly; Scudiero found him obviously upset about the incident. On cross-examination Scudiero stated that the rule about not giving L.C. any liquid or cigarettes was related to a medical condition which caused convulsions. He also stated that he was so upset by defendant's behavior with L.C. that he fetched the nurses.

Mary Ousley testified that she worked at Winston Manor as a certified nurse's assistant and described the layout of the facility in the manner stated by the other witnesses. She also related her familiarity with defendant and L.C., and explained that the limits on L.C.'s liquid intake and smoking of cigarettes was derived from ...


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