{ "id": 3291891, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JAMES E. WITTENMYER, Appellee", "name_abbreviation": "People v. Wittenmyer", "decision_date": "1992-10-01", "docket_number": "No. 72593", "first_page": "175", "last_page": "197", "citations": [ { "type": "official", "cite": "151 Ill. 2d 175" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "101 Ill. 2d 309", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3161103 ], "pin_cites": [ { "page": "313" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/101/0309-01" ] }, { "cite": "132 Ill. 2d 86", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5588813 ], "year": 1984, "pin_cites": [ { "page": "97" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/132/0086-01" ] }, { "cite": "139 Ill. 2d 206", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5574264 ], "year": 1989, "pin_cites": [ { "page": "214" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/139/0206-01" ] }, { "cite": "129 Ill. 2d 458", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5567120 ], "pin_cites": [ { "page": "474" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/129/0458-01" ] }, { "cite": "443 U.S. 307", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6182418 ], "weight": 3, "pin_cites": [ { "page": "319" }, { "page": "573" }, { "page": "2789" } ], "opinion_index": 0, "case_paths": [ "/us/443/0307-01" ] }, { "cite": "106 Ill. 2d 237", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3138930 ], "weight": 3, "pin_cites": [ { "page": "261" }, { "page": "261" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/106/0237-01" ] }, { "cite": "145 Ill. 2d 188", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5596168 ], "weight": 4, "year": 1985, "pin_cites": [ { "page": "203" }, { "page": "206" }, { "page": "206", "parenthetical": "\"[T]he jury is charged with the responsibility of weighing the credibility of witnesses and resolving any conflicts and inconsistencies in their testimony\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/145/0188-01" ] }, { "cite": "25 Ill. 2d 327", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5350937 ], "opinion_index": 0, "case_paths": [ "/ill-2d/25/0327-01" ] }, { "cite": "190 Ill. App. 3d 981", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2521758 ], "pin_cites": [ { "page": "990-91" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/190/0981-01" ] }, { "cite": "79 Ill. 2d 103", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3070111 ], "pin_cites": [ { "page": "120" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/79/0103-01" ] }, { "cite": "121 Ill. App. 3d 938", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3560911 ], "weight": 6, "pin_cites": [ { "page": "948" }, { "page": "948" }, { "page": "948" }, { "page": "948" }, { "page": "948" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/121/0938-01" ] }, { "cite": "497 U.S. 805", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6219632 ], "weight": 3, "pin_cites": [ { "page": "818" }, { "page": "654" }, { "page": "3148" } ], "opinion_index": 0, "case_paths": [ "/us/497/0805-01" ] }, { "cite": "216 Ill. App. 3d 1042", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5289695 ], "weight": 4, "pin_cites": [ { "page": "1046" }, { "page": "1047" }, { "page": "1047-48" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/216/1042-01" ] } ], "analysis": { "cardinality": 1116, "char_count": 36428, "ocr_confidence": 0.772, "pagerank": { "raw": 8.625591369429357e-07, "percentile": 0.9770471174188148 }, "sha256": "46884f81a8ef24b110e3a73f36adb1be49d9f87a7b1c70598a97759dd7648a52", "simhash": "1:ad663c04eabca15f", "word_count": 5978 }, "last_updated": "2023-07-14T18:57:31.068393+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JAMES E. WITTENMYER, Appellee." ], "opinions": [ { "text": "JUSTICE CLARK\ndelivered the opinion of the court:\nFollowing a bench trial in the circuit court of Bureau County, defendant, James E. Wittenmyer, was convicted of three counts of aggravated criminal sexual abuse (Ill. Rev. Stat. 1989, ch. 38, par. 12 \u2014 16) and one count of aggravated criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12 \u2014 14). Defendant was sentenced to concurrent five-year terms for each of the three aggravated criminal sexual abuse convictions, and to seven years\u2019 imprisonment for the aggravated criminal sexual assault conviction, which was to run consecutively to defendant\u2019s other convictions.\nThe appellate court affirmed defendant\u2019s convictions, but found that the circuit court erred in imposing a consecutive sentence for defendant\u2019s aggravated criminal sexual assault conviction. Consequently, the appellate court modified the judgment of the circuit court: vacating defendant\u2019s consecutive sentence for aggravated criminal sexual assault and ordering that it be served concurrently to defendant\u2019s sexual abuse convictions. (216 Ill. App. 3d 1042.) We granted the State\u2019s petition for leave to appeal (134 Ill. 2d R. 315). In addition, defendant has requested cross-relief (134 Ill. 2d R. 315(g)), arguing that there was insufficient evidence to support a conviction on any of the four counts, and that defendant was denied a fair trial by the introduction of out-of-court statements and the intentional destruction of discoverable notes of interviews.\nTestimony at trial revealed that in October 1988, Judy L. and her four children, G.L., D.L., Angela, and Louis, moved to La Moille, Illinois. They lived approximately four blocks from Judy\u2019s mother and step-father, Joanne Wittenmyer and defendant. Subsequently, in late June 1989, Judy suffered a mental breakdown and attempted suicide. She was hospitalized for a week, and then went to New Jersey to live with her brother for a month. During the time Judy was hospitalized and living in New Jersey, her four children lived with Joanne and defendant. In the summer of 1989, D.L. was 10 and her brother G.L. was 13.\nJudy testified that one week after she returned from New Jersey, on August 7, 1989, D.L. told her that defendant had been sexually abusing her. Two weeks later, on Labor Day weekend, Judy explained to G.L. that defendant had been sexually abusing D.L. and that the family had to move to La Salle. At this time, G.L. began to cry and told Judy that defendant had also been sexually abusing him.\nD.L. testified that in the last incident of abuse, which occurred in late July or early August, defendant accompanied D.L. to her mother\u2019s house to retrieve a pair of biking shorts. While D.L. and defendant were in the basement looking for the shorts, defendant \u201cleaned\u201d D.L. against a cabinet, and got down on his knees. D.L. testified that defendant lifted her shirt and bra and rubbed and sucked her breasts. Then, defendant put his hand down her pants and rubbed her vagina. After a minute, defendant attempted to insert his finger into her vagina. D.L. testified that she felt pain and she could feel defendant \u201cpushing up, like up and down and everything.\u201d According to D.L., defendant inserted his finger approximately to the first knuckle. This incident of abuse served as the basis for two of the counts of aggravated criminal sexual abuse, and the one count of aggravated criminal sexual assault.\nD.L. also testified that defendant had sexually abused her on five to six prior occasions at her mother\u2019s house. Each time, D.L. had been sent to retrieve the biking shorts, which belonged to her aunt Jaimie, and defendant accompanied her to the house. In addition, D.L. testified that defendant had sexually abused her one time at defendant\u2019s house.\nOn cross-examination, D.L. reaffirmed that this last incident of abuse occurred prior to her mother\u2019s returning from New Jersey. Previously, in September 1989, D.L. had told the investigators that this last incident of abuse occurred after Judy returned from New Jersey. Moreover, D.L. admitted that when she first spoke with the investigators back on September 4, 1989, she told them that she was not sure whether defendant had inserted his finger during the last incident of abuse. But, she explained that she thought the investigators\u2019 question referred to the insertion of defendant\u2019s whole finger.\nG.L. testified to an incident in early August 1989, while he was living with his grandmother and defendant. According to G.L., one evening he was alone in the living room watching television. Defendant arrived home from work at approximately 10:30 p.m., and after taking a shower, joined G.L. on the couch. At this time, G.L. testified that defendant pulled out his penis and asked G.L. to give it \u201ca rub.\u201d G.L. rubbed defendant\u2019s penis for approximately 45 seconds, at which time defendant went to the bathroom. This incident, which had happened on two prior occasions, served as the basis for the third count of aggravated criminal sexual abuse.\nG.L. also testified to other instances of abuse. Specifically, G.L. stated that defendant had G.L. \u2022 masturbate him in defendant\u2019s car while they drove to Mendota, Illinois. G.L. estimated that the total instances of sexual abuse during the summer of 1989 numbered 10 to 15. G.L. testified that he never told anyone about this sexual abuse because he was afraid \u201ceveryone would be mad at him.\u201d G.L. finally told his mother, Judy, after Judy told G.L. that defendant had been sexually abusing his sister, D.L.\nOn cross-examination, G.L. admitted that he had told the investigators back in September 1989 that he had been sexually abused at his mother\u2019s house on five to six prior occasions. On approximately two to three of these times, G.L. and defendant had gone to his mother\u2019s house to repair a broken water pipe or faucet.\nDetective Brett Taylor testified that on September 6, 1989, he interviewed defendant\u2019s wife, Joanne, and that she admitted that defendant and G.L. had been alone in defendant\u2019s car on \u201cnumerous\u201d occasions. Detective Taylor also testified to a conversation he had with Jaimie Wittenmyer, defendant\u2019s and Joanne\u2019s daughter, in which she told him that defendant and D.L. had gone alone to Judy\u2019s house on \u201cfour occasions or maybe more\u201d to look for the biking shorts.\nDetective Taylor also testified to three interviews with D.L. occurring on September 4, 1989, September 15, 1989, and February 22, 1990. D.L.\u2019s out-of-court statements made during these three interviews were admitted pursuant to section 115 \u2014 10 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 115 \u2014 10). Taylor testified in detail about D.L.\u2019s statements at each interview, and that D.L.\u2019s statements were consistent throughout. Regarding the September 4 interview, Taylor testified that D.L. described six incidents in which defendant sexually abused her at Judy\u2019s house while they were looking for Jaimie\u2019s biking shorts. Four of these incidents occurred in the basement, while two occurred in the kitchen. In terms of whether defendant\u2019s finger penetrated D.L.\u2019s vagina during the last incident of abuse, Taylor testified that D.L. stated \u201c[defendant] tried to put a finger into her vagina and she knew this because it hurt.\u201d\nRegarding the September 15 interview, Taylor testified that D.L. did not know the interview had been scheduled and that he did not refresh her recollection about her statements from the September 4 interview. Taylor testified that D.L.\u2019s statements during this second interview were consistent with those of the September 4 interview. D.L. again stated that there were six incidents of sexual abuse at her mother\u2019s house while she and defendant looked for the biking shorts.\nRegarding the February 22 interview, D.L. recounted the six instances of abuse at her mother\u2019s house and also \u201cclarified\u201d whether defendant inserted his finger into her vagina. Taylor testified that D.L. stated that, in the prior interviews, she was under the impression that the investigators were asking if defendant\u2019s entire finger had been inserted into her vagina. D.L. stated that defendant\u2019s finger did not fully go into her vagina, but \u201cup to the first knuckle.\u201d\nOn cross-examination, Taylor admitted that in his police report from the September 4 interview, he wrote that \u201c[D.L.] did not know if the finger actually went into her vagina but stated that it hurt.\u201d However, Taylor testified that D.L. stated that defendant \u201ctried to insert the finger, but she was not sure.\u201d In addition, Taylor admitted that although he testified on direct that during the September 15 interview D.L. stated that defendant tried to insert his finger and that it hurt, Taylor failed to put that in his report. Taylor maintained that D.L. did discuss this during the September 15 interview, but he forgot to include it in his report. Taylor also admitted that D.L. stated for the first time during the February 22 interview that defendant\u2019s finger was inserted into her, and that D.L. stated that the finger was \u201cpushing in and out.\u201d\nFollowing Taylor\u2019s testimony, the State rested, and defense counsel called several witnesses. Sharon Pontellis, Judy\u2019s sister, testified that on the Saturday of Labor Day weekend, 1989, she, her husband Thomas, and their daughter Rachel went to defendant\u2019s house in La Moille. Defendant and Joanne had left for a family reunion in Indiana. Sharon stated that when they arrived at approximately 9:30 p.m., Judy came over to defendant\u2019s house and told her that \u201cshe knew for a fact\u201d that defendant had been molesting at least four of the kids\u2014 G.L., D.L., Rachel, and Jaimie. Sharon testified that she did not believe Judy because she is a \u201cliar.\u201d Sharon also testified that on the following day, she called everyone together to have an \u201copen discussion.\u201d Sharon stated G.L. refused to talk, but D.L. said that defendant had \u201cmessed with\u201d Rachel in the basement and then sent her upstairs. According to D.L., Rachel said \u201cIt\u2019s your turn, [D.L.],\u201d and sent D.L. downstairs. At this point, Rachel said D.L. was a liar.\nThomas Pontellis testified that he spoke with G.L. and D.L. on the Sunday of Labor Day Weekend 1989 concerning the sexual abuse. Pontellis stated that G.L. told him that defendant had G.L. rub his \u201cprivate parts\u201d two or three times while they were alone in the car. Further, G.L. stated that this abuse never occurred in the house, only in the car. Pontellis testified that D.L. told him that defendant \u201cwould rub her on her private parts\u201d in an upstairs bedroom and the basement of defendant\u2019s house. Pontellis stated that on one occasion in the summer of 1989, he, G.L. and defendant went to Judy\u2019s house to repair a broken pipe or faucet. Pontellis testified that the repairs took approximately one hour, and nothing unusual happened.\nPontellis also testified to a conversation which was held around the kitchen table on Sunday of Labor Day weekend. Pontellis, his wife Sharon, Judy, D.L., G.L., Jaimie Wittenmyer and Pontellis\u2019 daughter Rachel were present. According to Pontellis, when he asked D.L. where the abuse took place, D.L. pointed to a basement and an upstairs bedroom in defendant\u2019s house. D.L. then told Pontellis that his daughter Rachel was also being abused. D.L. explained that while defendant and Rachel were in the basement, defendant abused her. D.L. stated that Rachel then came upstairs and told D.L. to go down to the basement. Rachel responded, stating, \u201cHow dare you say that, [D.L.], we\u2019re all over here all the time playing with you, if there is any abuse being done to you, I should have known about it.\u201d\nNancy Martinez, Judy\u2019s sister, testified to the character of Judy, G.L. and D.L. Martinez stated that Judy\u2019s reputation in the community is that she is dishonest, untrustworthy, and unreliable. Martinez testified that G.L. likes to lie and will invent things in order to be the center of attention. Lastly, Martinez said that D.L. has a reputation for dishonesty, and that she would not believe D.L.\u2019s testimony under oath.\nDefendant testified, denying that he sexually abused D.L. and G.L. In addition, defendant stated that when Judy\u2019s former husband, Raul, would physically beat her, he would regularly drive to Joliet to offer his assistance and protection. When Judy left Raul and moved to La Moille with her four children, defendant assisted and rented a truck for Judy. Defendant also stated that after Judy attempted suicide, defendant purchased a round-trip airline ticket for Judy to visit her brother in New Jersey. When Judy returned from New Jersey, defendant stated that she requested that defendant give her $1,000 so that she could move back to New Jersey to open a business with her brother. Defendant stated that Judy wanted defendant and his wife, Joanne, to care for Judy\u2019s children when she returned to New Jersey. Defendant stated that he did not give Judy the $1,000.\nRegarding the sexual abuse allegations, defendant stated that Joanne would usually wake up the children, and he would do it only \u201con extreme rare occasions.\u201d Defendant testified that he was alone with G.L. in the car \u201cseveral times,\u201d but he denied asking G.L. to fondle him. Moreover, defendant stated that he went over to Judy\u2019s to repair a broken water pipe on only one occasion, and G.L. and Tom Pontellis accompanied him. Defendant also admitted that he went to Judy\u2019s house on one occasion to retrieve the biking shorts, but he stated both D.L. and G.L. accompanied him.\nOn cross-examination, defendant admitted that Judy and her children\u2019s financial condition is considerably worse now, after making the sexual abuse allegations, than it was during the summer of 1989 when defendant provided them financial assistance. Also, defendant stated that during the summer of 1989, he never went into his daughter Jaimie\u2019s, D.L.\u2019s or G.L.\u2019s bedrooms.\nLastly, Conrad Knuth, an attorney, testified that he was retained by Judy in August 1988 at defendant\u2019s suggestion. Knuth stated that one year later, on August 11, 1989, he had a telephone conversation with Judy concerning her desire to give up rights to marital property. A week later, on August 18, 1989, Knuth had another telephone conversation with Judy in which she expressed her desire to relinquish control of her children to defendant.\nThe trial judge found defendant guilty of the two counts of aggravated criminal sexual abuse and the one count of aggravated sexual assault pertaining to D.L., and of the one count of aggravated criminal sexual abuse pertaining to G.L. The trial judge acknowledged that although there were some inconsistencies brought out by the prior statements of G.L. and D.L., these inconsistencies were not \u201cmajor.\u201d Specifically, the trial judge stated:\n\u201c[B]ecause I do not wish to deprive any person of life, liberty and property without a fair hearing, [I] searched the following evidence to determine whether I could find a reasonable doubt to disbelieve those children. Frankly, I failed to do it. I found none.\n* * *\nI am also pretty convinced that children may be able to be taught easily to lie, more easily than adults, but they cannot be taught to do it well. And the testimony here was virtually not shaken. \u2019 \u2019\nThe appellate court affirmed defendant\u2019s convictions, but found that the circuit court erred in imposing a consecutive sentence for defendant\u2019s aggravated criminal sexual assault conviction. As we noted earlier, the State appealed this modification of the sentence. Defendant has also requested cross-relief, and we will discuss those issues first.\nInitially, defendant argues that he was denied a fair trial because Detective Taylor was allowed to testify at trial regarding out-of-court statements D.L. made to him and other investigators. As we noted earlier, Detective Taylor testified that he and other investigators interviewed D.L. regarding these sexual abuse allegations on September 4, 1989, September 15, 1989, and February 22, 1990. At trial, Detective Taylor testified in detail about D.L.\u2019s statements at each interview. D.L.\u2019s out-of-court statements were admitted pursuant to section 115 \u2014 10 of the Code of Criminal Procedure (Ill. Rev. Stat. 1989, ch. 38, par. 115 \u2014 10). Defendant maintains that the use of D.L.\u2019s out-of-court statements in this case \u201cexpose[d] the danger of misuse of the rule.\u201d Specifically, defendant complains that there was no attempt to record D.L.\u2019s statements during these interviews through the use of a court reporter, video camera or tape recorder; nor was a representative of the defendant allowed to be present for the interviews.\nSection 115 \u2014 10 provides that in the prosecution of a sexual offense committed on a child under age 13, the testimony of an out-of-court statement made by the child pertaining to the sexual offense may be admissible as an exception to the hearsay rule. (Ill. Rev. Stat. 1989, ch. 38, par. 115 \u2014 10(a)(2).) Under section 115 \u2014 10, such testimony is admissible if:\n\u201c(1) The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and\n(2) The child either:\n(A) Testifies at the proceeding; or\n(B) Is unavailable as a witness and there is corroborating evidence of the act which is the subject of the statement.\u201d Ill. Rev. Stat. 1989, ch. 38, pars. 115\u2014 10(b)(1), (b)(2).\nIn this case, an evidentiary hearing was held in which Detective Taylor testified to the time, content, and circumstances of D.L.\u2019s statements during the three interviews. The trial judge, after listening to Taylor\u2019s testimony, concluded that the time, content and circumstances of the statements provided sufficient safeguards of reliability. In particular, the trial judge noted that nonleading questions were asked and the answers received were basically in D.L.\u2019s own words. Further, the trial court noted that there was nothing to indicate the interviews were threatening or coercive in nature.\nWe agree with the trial court and appellate court that the statutory requirements of section 115 \u2014 10 were met and that D.L.\u2019s statements during these interviews were admissible. Defendant\u2019s assertions that procedural safeguards, such as recording or videotaping, should have been used and that a representative of defendant should have been present for the interviews are meritless. As the State notes, defendant has not cited any authority to support his assertions, and in fact, the Supreme Court has rejected the adoption of such procedural safeguards (see Idaho v. Wright (1990), 497 U.S. 805, 818, 111 L. Ed. 2d 638, 654, 110 S. Ct. 3139, 3148).\nDefendant also claims he was denied a fair trial because Detective Taylor \u201cintentionally\u201d destroyed his handwritten notes of the three interviews with D.L. Defendant relies on Supreme Court Rule 412(a)(1), which requires the State to disclose to defense counsel \u201cmemoranda containing substantially verbatim reports of [witnesses\u2019] oral statements.\u201d (134 Ill. 2d R. 412(a)(1).) Although Detective Taylor did transcribe his notes into official reports, defendant argues that these handwritten notes might have been invaluable to his defense, particularly with regard to the aggravated criminal sexual assault charge in which defendant was accused of slight digital penetration of D.L.\u2019s vagina. Defendant maintains that since it was not until the third interview, on February 22, 1990, that D.L. described actual penetration, the handwritten notes might have shed some light on D.L.\u2019s apparent change in story.\nThe State maintains that Detective Taylor acted in conformity with the discovery rules because he reduced the contents of his handwritten notes to official reports, which were then provided to defense counsel. The State relies primarily on People v. Howard (1984), 121 Ill. App. 3d 938. In Howard, after interviewing the defendant on separate occasions, an investigator and an assistant State\u2019s Attorney destroyed their handwritten notes of the defendant\u2019s oral statements. The investigator destroyed his notes after determining the substance of the defendant\u2019s statements was contained in a police report, whereas the assistant State\u2019s Attorney destroyed her notes after noting in a memo to her superior that the substance of the defendant\u2019s statements was contained in a written statement signed by the defendant. Defense counsel was provided the police report and the defendant\u2019s written statement during discovery. Howard, 121 Ill. App. 3d at 948.\nIn holding that the State did not violate Supreme Court Rule 412, the appellate court stated that the purpose of discovery \u201cis to prevent the production of surprise evidence or testimony which would serve to prejudice defendant\u2019s case.\u201d (Howard, 121 Ill. App. 3d at 948.) Because the substance of the handwritten notes was contained in the police report and the defendant\u2019s written statement, \u201cthe destruction of the notes did not and, indeed, could not have resulted in the type of surprise testimony which the discovery rules were designed to prevent.\u201d (Howard, 121 Ill. App. 3d at 948.) Consequently, \u201cby ensuring that the substance of their notes were documented elsewhere before destroying them, the investigator and assistant State\u2019s Attorney acted in conformance with the discovery rules.\u201d Howard, 121 Ill. App. 3d at 948.\nAlthough Detective Taylor\u2019s notes would have been discoverable under Rule 412(a)(i) had they not been destroyed, we find defendant has suffered no prejudice. \u201cNoncompliance with discovery requirements does not require reversal absent a showing of prejudice.\u201d (People v. Greer (1980), 79 Ill. 2d 103, 120.) At the evidentiary hearing for the admissibility of D.L.\u2019s three interviews, Detective Taylor stated that he typed up the reports directly off his handwritten notes, and that he was as thorough as possible. Thus, as in Howard, the destruction of Taylor\u2019s notes did not result in the type of surprise testimony which the discovery rules were designed to prevent. See Howard, 121 Ill. App. 3d at 948; People v. Miller (1989), 190 Ill. App. 3d 981, 990-91 (stating that \u201cwe believe that when the substance of a statement is contained in a police report that has been previously furnished to the defense pursuant to discovery, the purpose of the rule has been satisfied and no prejudice results from the withholding of another memorandum of the same statement\u201d).\nNext, defendant argues that there was insufficient credible evidence to support any of his four convictions, particularly his conviction for aggravated criminal sexual assault. Defendant maintains that the State\u2019s entire case depended on the credibility of D.L. and G.L., whose testimony defendant claims was impeached and contradicted by credible witnesses. Moreover, defendant claims that D.L. and G.L. were \u201cunder the influence of an unstable mother who felt defendant had let her down and was angry with him.\u201d Defendant asserts that, as in all cases involving allegations of sexual abuse of children, the victim\u2019s testimony must be clear and convincing or must be corroborated, citing People v. Kolden (1962), 25 Ill. 2d 327.\nInitially, we note that the sex-offense standard of review articulated by defendant, that a victim\u2019s testimony must be clear and convincing or substantially corroborated, has been rejected by this court. In People v. Schott (1991), 145 Ill. 2d 188, this court held that the reasonable doubt test articulated in People v. Collins (1985), 106 Ill. 2d 237, should govern an appellant\u2019s claim of evidentiary insufficiency in sex-offense cases. According to Collins, criminal convictions are not to be overturned on review unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant\u2019s guilt. The specific test to be employed on review \u201c \u2018 \u201cis whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.\u201d \u2019 \u201d (Emphasis in original.) Schott, 145 Ill. 2d at 203, quoting Collins, 106 Ill. 2d at 261, quoting Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.\nIn this case, we agree with the appellate court that there was sufficient credible evidence to support defendant\u2019s four convictions. As the appellate court stated, \u201c[a] review of the record shows that the basic facts related by D.L. and G.L. concerning the two incidents of abuse serving as the basis for the indictments against the defendant remained consistent.\u201d (216 Ill. App. 3d at 1046.) In finding defendant guilty, the trial judge, as the fact finder, was unequivocal that he believed the testimony of D.L. and G.L. and rejected the testimony of defense witnesses. The trial judge\u2019s remarks in denying the defendant\u2019s motion for a new trial further reflected his view of the credibility of the witnesses:\n\u201cI don\u2019t think anything new has been presented here. I see that [defense counsel] is trying to emphasize here certain points in the testimony. And in all due respect, he should do that, it\u2019s his job. But I heard this evidence and when we got to the issue of the credibility of the two complaining witnesses, the evidence concerning their untruthfulness was placed before this court through family members which the court [sic] to be more untruthful by far, that is, less credibility. In fact, I made the statement that with the possible exception of Tom Pontellis and his wife, I really don\u2019t believe much of anybody that testified for the defense. Now it\u2019s a question of credibility and that\u2019s the credibility issue that I ruled on and that\u2019s the decision I made ***.\u201d (Emphasis added.)\nThe credibility of the witnesses and the weight to be given their testimony is exclusively within the province of the trier of fact. (People v. Boclair (1989), 129 Ill. 2d 458, 474.) That determination is entitled to great deference, and when the sufficiency of the evidence is challenged, we will not retry the defendant. (Schott, 145 Ill. 2d at 206.) Here, the trial judge assessed the credibility of the witnesses, and resolved any conflicts or inconsistencies in their testimony. Thus, we find that the evidence was not so improbable or unsatisfactory that it created a reasonable doubt of the defendant\u2019s guilt.\nWith regard to defendant\u2019s conviction for aggravated criminal sexual assault, defendant argues that the evidence was insufficient to establish penetration as required by the statute. (See Ill. Rev. Stat. 1989, ch. 38, par. 12 \u2014 14.) Defendant maintains that although D.L. testified at trial to slight digital penetration of her vagina, her earlier statements to Detective Taylor impeached her testimony and created a reasonable doubt as to the element of penetration. We disagree, and find that when the evidence is viewed in the light most favorable to the prosecution, the trial judge could have found the essential element of penetration. See Collins, 106 Ill. 2d at 261.\nAlthough D.L. did not definitively state that defendant\u2019s finger penetrated her vagina until the third interview, on February 22, 1990, her prior statements to Detective Taylor in the September 4 and September 15 interviews did not contradict her trial testimony. Rather, as D.L. herself testified at trial, they reflected her confusion about whether the investigators were asking if defendant\u2019s whole finger had been inserted into her vagina. Detective Taylor\u2019s official report from the first interview, on September 4, 1989, indicated that defendant attempted to insert his finger in D.L.\u2019s vagina, and that D.L. felt pain. D.L. stated that she was not sure if defendant\u2019s finger actually penetrated. Regarding Taylor\u2019s official report for the September 15 interview, no mention is made of whether defendant inserted or attempted to insert his finger. Detective Taylor, however, testified at trial that D.L. did state that defendant tried to insert his finger and that she said it hurt.\nAt trial, D.L. testified that defendant put his hand on her vagina and began rubbing. D.L. stated that after a minute, defendant put his finger into her vagina, and that she knew this because \u201cit hurt and [she] could feel it.\u201d D.L. testified that defendant \u201cwas pushing up, like up and down and everything.\u201d Based on what she could feel, D.L. indicated that defendant inserted his finger up to approximately the first knuckle. On cross-examination, defense counsel questioned D.L. about her interview on September 4, 1989, with Detective Taylor and the other investigators.\n\u201cQ. [Defense Counsel]: When you first talked to the investigators back that first time, September 4, 1989, that was that Labor Day week-end when they came out to your house, did you tell them then that your grandfather had put a finger in you?\nA. I told them that I wasn\u2019t sure if he did, but I told them he was rubbing me and everything and I thought he did but I wasn\u2019t sure because, well, I told them no, I told them that I wasn\u2019t sure because it did hurt and everything and I wasn\u2019t\u2014\nQ. You told them no but you weren\u2019t sure.\nA. Yes because I really thought they meant the whole finger and everything and plus, and I told them it did hurt, plus I told them it did hurt.\nQ. You told them it hurt?\nA. Yes.\nQ. But you didn\u2019t know if a finger was put into you?\nA. Yes, the whole finger.\nQ. Did you know on that day if the finger was put into you?\nA. I knew but I thought they meant the whole finger so\u2014\nQ. You knew or you didn\u2019t know?\nA. Well, I kind of did because I thought they meant the whole finger and everything and then I just, like this much of the finger, and I thought they meant the whole finger, so I just told them that.\u201d\nD.L.\u2019s explanation on cross-examination makes clear that she initially thought the investigators were asking if defendant\u2019s entire finger had been inserted in her vagina. In her February 22, 1990, interview, D.L. explained her confusion and clarified that defendant inserted his finger into her vagina approximately to the first knuckle. The trial judge found D.L.\u2019s explanation credible, and we will not reverse that decision. See Schott, 145 Ill. 2d at 206 (\u201c[T]he jury is charged with the responsibility of weighing the credibility of witnesses and resolving any conflicts and inconsistencies in their testimony\u201d).\nLastly, we address the State\u2019s argument that the appellate court erred in vacating defendant\u2019s consecutive sentence for his aggravated criminal sexual assault conviction. Defendant was convicted of the two counts of aggravated criminal sexual abuse and the one count of aggravated criminal sexual assault pertaining to D.L., and the one count of aggravated criminal sexual abuse pertaining to G.L. Defendant was sentenced to concurrent terms for each of the three aggravated criminal sexual abuse convictions, and to seven years\u2019 imprisonment for the aggravated criminal sexual assault conviction, which was to run consecutively to defendant\u2019s other convictions.\nSection 5 \u2014 8\u20144(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005 \u2014 8\u20144(a)) provides in pertinent part:\n\u201cThe court shall not impose consecutive sentences for offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective, unless, one of the offenses for which defendant was convicted was a Class X or Class 1 felony and the defendant inflicted severe bodily injury, or where the defendant was convicted of a violation of Section 12 \u2014 IS or 12 \u2014 14 of the Criminal Code of 1961, in which event the court shall enter sentences to run consecutively.\" (Emphasis added.) Ill. Rev. Stat. 1989, ch. 38, par. 1005-8-4(a).\nThe appellate court interpreted this section to require both a conviction for a Class X or Class 1 felony plus an additional conviction for a violation of section 12 \u2014 13 or 12 \u2014 14 of the Criminal Code of 1961 before a consecutive sentence can be imposed. (216 Ill. App. 3d at 1047.) In this case, the appellate court held that \u201c[a] single conviction for violation of section 12 \u2014 14, which is a Class X felony, cannot serve as the basis for consecutive sentences when the defendant has no other convictions of violations of section 12 \u2014 13 or 12 \u2014 14, and has not been convicted of any other Class X or Class 1 felony.\u201d 216 Ill. App. 3d at 1047-48.\nThe appellate court\u2019s interpretation of this section indicates to us that it misread the plain language of the statute. According to the rules of statutory construction, \u201c \u2018[w]here the statutory language is clear and unambiguous, a court must enforce the law as enacted without considering other aids of construction.\u2019 \u201d (People v. Drakeford (1990), 139 Ill. 2d 206, 214, quoting People v. Ferguson (1989), 132 Ill. 2d 86, 97.) Further, the intent of the legislature can be best determined by the plain and ordinary meaning of the statutory language. People v. Pettit (1984), 101 Ill. 2d 309, 313.\nAfter carefully reviewing the plain language of this section, we believe that the legislature has provided for two exceptions to the general rule that a trial court shall not impose consecutive sentences for offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective. First, if one of the offenses for which defendant was convicted was a Class X or Class 1 felony and the defendant inflicted severe bodily injury, the legislature has mandated that the trial court impose consecutive sentences. Second, if the defendant was convicted of a violation of section 12 \u2014 13 or 12 \u2014 14 of the Criminal Code, the legislature has mandated that the trial court must impose consecutive sentences. See Ill. Rev. Stat. 1989, ch. 38, par. 1005 \u2014 8\u2014 4(a).\nOur interpretation, as opposed to the appellate court\u2019s, is supported by the legislative history of section 5 \u2014 8\u20144(a). Initially, in 1973, section 5 \u2014 8\u20144(a) provided that consecutive sentences could not be imposed for \u201coffenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective.\u201d (Ill. Rev. Stat. 1973, ch. 38, par. 1005 \u2014 8\u20144(a).) Subsequently, in 1978, the following italicized language was added to section 5 \u2014 8\u20144(a): \u201cunless, one of the offenses for which defendant was convicted was a Class X or Class 1 felony and the defendant inflicted severe bodily injury, in which event the court may enter sentences to run consecutively.\u201d (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 38, par. 1005 \u2014 8\u20144(a).) Then, effective July 1, 1988, the legislature amended section 5 \u2014 8\u20144(a) to its present form, adding the language \u201cor where the defendant was convicted of a violation of Section 12 \u2014 13 or 12 \u2014 14 of the Criminal Code of 1961, in which event the court shall enter sentences to run consecutively.\u201d Ill. Rev. Stat. 1989, ch. 38, par. 1005 \u2014 8\u20144(a).\nThis legislative history clearly indicates to us that the legislature intended to have two separate and distinct exceptions to the general rule that the court shall not enter consecutive sentences for offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective \u2014 one, if the defendant was convicted of a Class X or Class 1 felony and inflicted severe bodily injury, or two, if the defendant was convicted of a violation of section 12 \u2014 13 or 12 \u2014 14 of the Criminal Code.\nApplying our interpretation of the plain language in section 5 \u2014 8\u20144(a), we find that the trial court correctly sentenced defendant to a consecutive term of seven years for his conviction of aggravated criminal sexual assault under section 12 \u2014 14 of the Criminal Code.\nFor the reasons stated, the judgment of the appellate court is affirmed in part and reversed in part, and the judgment of the circuit court is affirmed.\nAppellate court affirmed in part and reversed in part; circuit court affirmed.", "type": "majority", "author": "JUSTICE CLARK" } ], "attorneys": [ "Roland Burris, Attorney General, of Springfield, and Marc R Bernabei, State\u2019s Attorney, of Princeton (Kenneth R. Boyle, Norbert J. Goetten, John X. Breslin and Gary F. Gnidovec, of the Office of the State\u2019s Attorneys Appellate Prosecutor, of Ottawa, of counsel), for the People.", "Paul Bradley, of Chicago, for appellee." ], "corrections": "", "head_matter": "(No. 72593.\nTHE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JAMES E. WITTENMYER, Appellee.\nOpinion filed October 1, 1992.\nRoland Burris, Attorney General, of Springfield, and Marc R Bernabei, State\u2019s Attorney, of Princeton (Kenneth R. Boyle, Norbert J. Goetten, John X. Breslin and Gary F. Gnidovec, of the Office of the State\u2019s Attorneys Appellate Prosecutor, of Ottawa, of counsel), for the People.\nPaul Bradley, of Chicago, for appellee." }, "file_name": "0175-01", "first_page_order": 187, "last_page_order": 209 }