{
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  "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MERLE SEPHUS, Defendant-Appellant",
  "name_abbreviation": "People v. Sephus",
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  "casebody": {
    "judges": [],
    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MERLE SEPHUS, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "JUSTICE WEBBER\ndelivered the opinion of the court:\nAfter a jury trial defendant was found guilty of two counts of aggravated criminal sexual abuse in violation of section 12 \u2014 16(c)(1) of the Criminal Code of 1961 (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 12 \u2014 16(c)(1)). He was sentenced to two concurrent terms of three years\u2019 imprisonment. Defendant appeals his conviction. We affirm.\nDefendant was charged with aggravated criminal sexual assault, two counts of aggravated criminal sexual abuse, and residential burglary based on an incident which occurred on August 7, 1985. Defendant, a man in his mid-fifties, entered the home of an acquaintance, John Taylor, ostensibly to watch the Taylor family\u2019s four children while both parents were away. The testimony at trial differed as to whether defendant was given permission to enter the home or merely asked to make sure the children were not playing outside as he walked by. The residential burglary claim draws its basis from this dispute. We need not consider it, however, as the jury found defendant not guilty of that charge. While in the house, defendant allegedly fondled the breasts and genitals of the eldest Taylor girl, 12 years old. The girl escaped defendant\u2019s grasp and ran out of the house just as a family friend, Vicky Smith, was driving by. The girl waved the car to a halt and explained, at least to a certain degree, what had occurred. Vicky and the young girl then went to the home of the regular baby sitter, Linda Smith (no relation). All three then returned to the Taylor home, where Vicky Smith confronted defendant. Linda Smith phoned Beverly Taylor, the children\u2019s mother, who was taking nursing classes. Beverly went home and then took her daughter to Blessing Hospital. On the way she asked her daughter what had happened. At trial, over defendant\u2019s objection, Beverly was allowed to testify as to what her daughter told her. The complainant told her mother that defendant had \u201cbothered\u201d her; defendant had been messing with her \u201cprivates.\u201d Beverly explained that she taught her children to call the male and female genitals the \u201cprivates.\u201d\nAt trial the complainant and a younger sister, age 11, were found competent to testify. They gave a detailed account of what occurred while defendant was in their house. At the instruction conference the State moved to amend the information by dismissing the charge of aggravated criminal sexual assault. The motion was granted. The jury found defendant guilty of two counts of aggravated criminal sexual abuse.\nDefendant raises two arguments on appeal: (1) the trial court erred in admitting Beverly\u2019s hearsay testimony as to what the complainant told her; and (2) section 12 \u2014 12 et seq. of the Criminal Code of 1961 (Ill. Rev. Stat. 1984 Supp., ch. 38, par. 12 \u2014 12 et seq.) violates due process and should be declared void.\nThe trial court admitted the testimony of Mrs. Taylor as to what her daughter had told her during the ride to the hospital. The court ruled the testimony was admissible under the \u201cspontaneous declaration\u201d exception to the hearsay rule. On appeal defendant argues the trial court erred in so ruling. The State basically agrees but argues there is no error as the testimony was properly admissible under the corroborative-complaint provision of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 115 \u2014 10). The trial court had earlier rejected this ground.\nThe conversation between complainant and her mother occurred at least one hour after the incident occurred. Complainant gave some description of what occurred to Vicky Smith as she fled to Smith for help. In the short span of time thereafter, Vicky Smith picked up Linda Smith at the latter\u2019s house; both of them confronted defendant at the Taylor home; Beverly Taylor was summoned from school; and on the way to the hospital, complainant gave a description of what happened to her mother. No one paid close attention to time, and the best estimate finds the conversation between mother and daughter taking place about an hour after the incident. It would have been better to argue the statements made to Vicky Smith were admissible under the spontaneous-declaration exception. Vicky Smith did not testify at trial, however. Complainant\u2019s statements to her mother arguably took place too long after the incident to be considered spontaneous. (See People v. Jackson (1956), 9 Ill. 2d 484, 138 N.E.2d 528.) In addition, complainant had discussed, at least in part, the incident with Vicky Smith, thereby destroying the spontaneity of any statement to her mother. See People v. Robinson (1978), 73 Ill. 2d 192, 383 N.E.2d 164.\nAlthough we have concluded that the testimony of Beverly concerning the statement to her by the complainant was not admissible under the spontaneous-declaration exception to the hearsay rule, we are also of the opinion that the trial court properly rejected the testimony under section 115 \u2014 10 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 115 \u2014 10), which provides:\n\u201cIn a prosecution for a sexual act perpetrated upon a child under the age of 13, including but not limited to prosecutions for violations of Sections 12 \u2014 13 through 12 \u2014 16 of the Criminal Code of 1961, the following evidence shall be admitted as an exception to the hearsay rule:\n(1) testimony by such child that he or she complained of such act to another; and\n(2) testimony by the person to whom the child complained that such complaint was made in order to corroborate the child\u2019s testimony.\u201d\nThe plain meaning of the statute is that the test is two-pronged: first, there must be testimony of the complainant to the witness and, second, the testimony of the witness to whom the complaint was made must be corroborative in nature. In the absence of the statute either one would constitute inadmissible hearsay. Further, the testimony of the complainant is a necessary predicate for the testimony of the witness. We note that the statute does not mandate any particular sequence or time frame for the statements \u2014 only that both must be in the record.\nIn the instant case the trial court ruled, and our examination of the record confirms, that the complainant did not unequivocally testify concerning any statement to her mother. Rather, the conversations with the mother related to the admonitions to the complainant to tell the truth at trial. Thus, the first prong of the statutory test was not met.\nNevertheless, while the admission of this testimony was erroneous, we believe that the error was harmless. The guilt of the defendant was overwhelmingly established, and we cannot perceive how the admission of Beverly\u2019s testimony about any statement to her by the complainant could have affected the jury\u2019s determination.\nDefendant\u2019s second argument is that the new statutes dealing with sexual offenses are unconstitutionally vague and result in a denial of due process. Defendant points to three particular provisions: (1) the definition of \u201cforce\u201d in section 12 \u2014 12(d) of the Criminal Code of 1961 (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 12 \u2014 12(d)), (2) the provision upgrading criminal sexual assault to aggravated criminal sexual assault on the basis of a displayed weapon (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 12 \u2014 14(a)(1)), and (3) the definitions of \u201csexual conduct\u201d and \u201csexual penetration\u201d in section 12 \u2014 12 (Ill. Rev. Stat. 1984 Supp., ch. 38, pars. 12 \u2014 12(e), (f)).\nWe may quickly dispose of the arguments based on the first two provisions cited above. The instant case does not deal with a sexual offense where the use of force or a displayed weapon was at issue. It is well established that a defendant may not challenge the constitutionality of a statutory provision which does not affect him unless the allegedly unconstitutional provision is so pervasive as to render the entire act void. (People v. Palkes (1972), 52 Ill. 2d 472, 288 N.E.2d 469; People v. Bombacino (1972), 51 Ill. 2d 17, 280 N.E.2d 697.) We find no glaring constitutional errors in the provisions dealing with force or display of a weapon. Even were we to find error in these two provisions, the entire act would not be declared void. The legislature included a severability clause, which was codified:\n\u201cSection 3. Section 28.1 is added to \u2018AN ACT to create the offenses of criminal sexual assault, aggravated criminal sexual assault, criminal sexual abuse, and aggravated criminal sexual abuse and repealing various offenses and amending various Acts in relation thereto\u2019, Public Act 83 \u2014 1067, certified January 5,1984, the added Section to read as follows:\nSec. 28.1. If any provision of this Act or application thereof to any person or circumstance is held invalid, such invalidity does not affect other provisions or applications of this Act which can be given effect without the invalid application or provision, and to this end the provisions of this Act are sever-able.\u201d (Emphasis in original.) Pub. Act 83 \u2014 1117; 1984 Ill. Laws 172; see also Ill. Ann. Stat. ch. 38, par. 12 \u2014 12, at 220-21 (Smith-Hurd Supp. 1986).\nThe final constitutional challenge pertains directly to defendant. Defendant was initially charged with one count of aggravated criminal sexual assault as well as the two counts of aggravated criminal sexual abuse with which he was convicted. Aggravated criminal sexual assault is the offense of criminal sexual assault committed with an aggravating circumstance, as outlined in the statute. (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 12 \u2014 14.) Aggravated criminal sexual abuse bears the same relationship to criminal sexual abuse. (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 12 \u2014 16.) The basis of criminal sexual assault is the act of sexual penetration, which is defined as follows:\n\u201c \u2018Sexual penetration\u2019 means any contact, however slight, between the sex organ of one person and the sex organ, mouth or anus of another person, or any intrusion, however slight, of any part of the body of one person or of any animal or object into the sex organ or anus of another person, including but not limited to cunnilingus, fellatio or anal penetration. Evidence of emission of semen is not required to prove sexual penetration.\u201d (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 12 \u2014 12(f).)\nThe basis of criminal sexual abuse is sexual conduct, defined as follows:\n\u201c \u2018Sexual conduct\u2019 means any intentional or knowing touching or fondling by the victim or the accused, either directly or through clothing, of the sex organs, anus or breast of the victim or the accused, or any part of the body of a child under 13 years of age, for the purpose of sexual gratification or arousal of the victim or the accused.\u201d (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 12 \u2014 12(e).)\nThe State moved to have the charge of aggravated criminal sexual assault dismissed at the jury instruction conference, which motion was granted.\nDefendant argues the definitions of \u201csexual conduct\u201d and \u201csexual penetration\u201d are ill-defined and the meanings are interchangeable. The result is that the prosecutor\u2019s discretion determines whether one is charged with aggravated criminal sexual abuse, which carries a sentence of 3 to 7 years (Ill. Rev. Stat. 1985, ch. 38, pars. 12 \u2014 16(e), 1005 \u2014 8\u20141(5)), or aggravated criminal sexual assault, which carries a sentence of 6 to 30 years (Ill. Rev. Stat. 1985, ch. 38, pars. 12 \u2014 14(c), 1005 \u2014 8\u20141(3)). Thus, defendant argues, prosecutors may abuse the statutes through arbitrary and discriminatory application.\nThis question has been raised recently in several cases. In People v. Hope (1986), 142 Ill. App. 3d 171, 491 N.E.2d 785, the defendant challenged the enlarged wording of the definition of \u201csexual penetration.\u201d The court noted the definition was enlarged by the legislature and held the legislature has the authority to change the ordinary and popular meaning of words in a statute. In effect, the court held that enlarging the definition of \u201csexual penetration\u201d to include certain types of sexual contact was constitutional.\nMore recently, in People v. Server (1986), 148 Ill. App. 3d 888, we upheld the constitutionality of the statutes defining \u201csexual penetration\u201d and \u201csexual conduct\u201d against similar arguments that the broadened definitions permit arbitrary enforcement by the State. In so doing, we reiterated the principle that there is no denial of due process when a defendant can be prosecuted for two separate offenses with two different penalties based upon the same conduct. (People v. McCollough (1974), 57 Ill. 2d 440, 313 N.E.2d 462; People v. Paden (1984), 123 Ill. App. 3d 514, 462 N.E.2d 989.) It is not a violation of due process for the State\u2019s Attorney to possess a certain amount of discretion. The State\u2019s Attorney, as a representative of the People, is vested with discretion to evaluate the evidence and other pertinent factors in determining which offense properly can be, and should be, charged. (People v. McCollough (1974), 57 Ill. 2d 440, 313 N.E.2d 462; People v. Paden (1984), 123 Ill. App. 3d 514, 462 N.E.2d 989.) We have been presented with no argument in the case before us to change our opinion.\nFor the foregoing reasons, the order and sentence of the circuit court of Adams County is affirmed.\nAffirmed.\nMcCULLOUGH, PM., and SPITZ, J., concur.",
        "type": "majority",
        "author": "JUSTICE WEBBER"
      }
    ],
    "attorneys": [
      "Daniel D. Yuhas and Allen H. Andrews, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.",
      "Thomas K. Leeper, State\u2019s Attorney, of Quincy (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MERLE SEPHUS, Defendant-Appellant.\nFourth District\nNo. 4\u201486\u20140067\nOpinion filed November 5, 1986.\nRehearing denied December 15, 1986.\nDaniel D. Yuhas and Allen H. Andrews, both of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nThomas K. Leeper, State\u2019s Attorney, of Quincy (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People."
  },
  "file_name": "0272-01",
  "first_page_order": 294,
  "last_page_order": 300
}