{ "id": 2521512, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LAVERN HEIDELBERG, Defendant-Appellant", "name_abbreviation": "People v. Heidelberg", "decision_date": "1989-11-08", "docket_number": "No. 5\u201488\u20140475", "first_page": "743", "last_page": "747", "citations": [ { "type": "official", "cite": "190 Ill. App. 3d 743" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "488 N.E.2d 261", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "109 Ill. 2d 369", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3125562 ], "opinion_index": 0, "case_paths": [ "/ill-2d/109/0369-01" ] }, { "cite": "188 Ill. App. 3d 971", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2688797 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/188/0971-01" ] }, { "cite": "538 N.E.2d 1255", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "183 Ill. App. 3d 149", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2629898 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/183/0149-01" ] }, { "cite": "538 N.E.2d 1335", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1346" } ], "opinion_index": 0 }, { "cite": "183 Ill. App. 3d 241", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2630056 ], "pin_cites": [ { "page": "257" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/183/0241-01" ] }, { "cite": "132 Ill. 2d 178", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5589174 ], "weight": 2, "pin_cites": [ { "page": "210" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/132/0178-01" ] }, { "cite": "481 N.E.2d 676", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "678" } ], "opinion_index": 0 }, { "cite": "107 Ill. 2d 62", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3134711 ], "pin_cites": [ { "page": "65" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/107/0062-01" ] } ], "analysis": { "cardinality": 510, "char_count": 8441, "ocr_confidence": 0.765, "pagerank": { "raw": 4.621887471290392e-08, "percentile": 0.28921705473948484 }, "sha256": "718359a0d424f1a37b2d70ce0a9d67a1ea5e87a042b71202d821dff4b4208048", "simhash": "1:3a7e90dd79a28091", "word_count": 1387 }, "last_updated": "2023-07-14T21:35:40.569733+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LAVERN HEIDELBERG, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE HOWERTON\ndelivered the opinion of the court:\nDefendant was convicted in a bench trial of criminally sexually assaulting his stepdaughter, LeVita, in violation of section 12\u2014 13(a)(3) of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 12 \u2014 13(a)(3)).\nLeVita 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 \u201cmess with\u201d LeVita\u2019s younger sister as long as LeVita told no one about their sexual relationship.\nDefendant confessed, and his signed written statement was admitted into evidence. The statement said in part:\n\u201cMr. 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.\u201d\nDefendant, sentenced to nine years in the Department of Corrections, appeals. We affirm.\nDefendant 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 \u2014 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 \u201clesser degree of malice or unlawful purpose\u201d than simple arson, which is punished as a Class 2 felony.\nDefendant\u2019s 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.\nDefendant next argues that the circuit court erred in admitting hearsay from Roberta Heidelberg, LeVita\u2019s mother and defendant\u2019s wife, and from Dr. Susan Heney, LeVita\u2019s examining physician, as to what LeVita told them about sex between defendant and her.\nRoberta\u2019s testimony is examined first. The record is:\n\u201cQ. Did you happen to have a conversation with your daughter LeVita about her acts that happened between your husband and her?\nMR. TRENTMAN: Your Honor, I\u2019m going to object to the form of the question, where he\u2019s asking \u2014 in essence he\u2019s asking the content of that hearsay conversation.\nMR. HATCH: I\u2019m not asking for the content. I\u2019m just asking if she had a conversation.\nTHE COURT: Overruled. You may answer.\u201d\nThe State seems to believe that because the question is styled as one asking only if there was a conversation, the hearsay rule is avoided. That belief is erroneous. Roberta answered by saying she had talked with LeVita; as soon as she said she had, the State\u2019s Attorney then asked if she confronted defendant with those allegations; she said she had, and defendant had made an admission. So, the operative words were: conversation with LeVita concerning those acts; conversation with defendant about those allegations; and defendant made an admission that he had had sex with LeVita. In this context, the question taken with the answers show that the State intended this testimony as an assertion. (See Fed. R. Evid. 801(a).) In this context, what LeVita told her mother was not veiled with even a \u201csee through\u201d cloak. What she told her mother, although unspoken, thundered to the judge, gathering volume as his imagination was set in motion. That the judge took it as an assertion is clear, because he found that \u201cthere is corroboration of the testimony of the complaining witness in the form of the statements made by the victim to her mother.\u201d Therefore, we treat the question as one that called for a hearsay answer, and we treat it as if what was suggested, subliminally and powerfully, had been spoken, that is, as if Roberta had testified that LeVita told her she had been having sex with defendant.\nLeVita told her mother, Roberta, that she had been having sex with defendant; she told Roberta this one month after the sex act. Roberta testified to what LeVita had told her. Defendant argues the testimony was hearsay, not qualifying as either a spontaneous declaration or prompt complaint of rape, because enough time had passed between the act and LeVita\u2019s declaration that a court could not find absence of motive to fabricate.\nDefendant ignores three points.\nFirst, Roberta went on to testify that she immediately confronted defendant. Her testimony is so salient, so startling, that it most assuredly deserves reproduction here. She said:\n\u201cQ. Okay. And after you had that conversation with your daughter, did you have a conversation with the defendant about those allegations?\nA. Yes.\nQ. Okay. What did your husband say when you confronted him?\nA. When I confronted him, he told me that [he] hadn\u2019t been messing with my youngest daughter because he was too busy messing with my oldest daughter.\u201d\nLeVita is the oldest daughter.\nRoberta was turned over to defendant for cross-examination.\nThe very first, the very first, question to her on cross was:\n\u201cQ. Mrs. Heidelberg, to the best of your recollection, those were his exact words?\u201d\nShe answered, \u201cYes.\u201d\nDefendant not only failed to object to Roberta\u2019s testifying to LeVita\u2019s declaration to her, but cross-examined on it. Where a defendant fails to object to testimony and elicits the same or similar testimony on cross-examination, any error in admitting the testimony is waived. People v. Douglas (1989), 183 Ill. App. 3d 241, 257, 538 N.E.2d 1335, 1346.\nFurthermore, there is nothing in defendant\u2019s post-trial motion regarding Roberta Heidelberg\u2019s testimony. Therefore, it is waived. People v. Volkmar (1989), 183 Ill. App. 3d 149, 538 N.E.2d 1255.\nSecond, had there been error in admitting Roberta\u2019s testimony relating LeVita\u2019s declaration to her, it is harmless in light of defendant\u2019s admission of guilt to Roberta.\nThird, defendant ignores his own written, signed confession; that confession, in this case, renders harmless the admission of hearsay. See People v. Cooper (1989), 188 Ill. App. 3d 971.\nAs to defendant\u2019s complaint that Dr. Heney was allowed to testify to hearsay, we here reproduce the record. Dr. Heney testified on direct:\n\u201cQ. Okay. Now going back then to LeVita Williams on September 21st of last year, what was the purpose of your examination, physical examination?\nA. She presented to the sexual abuse clinic with the Division of Family Services worker. She complained \u2014 her immediate complaint was that she had been sexually abused over a long period of time by her stepfather, beginning at about age 9 or 10.\nMR. TRENTMAN: Your Honor, I\u2019ll object to this as being hearsay.\nMR. HATCH: I\u2019ll try to steer away from what the child told her.\nTHE COURT: Okay.\u201d\nThe defendant\u2019s objection was neither sustained nor overruled and no further comment was made concerning the content of LeVita\u2019s complaint. Defendant failed to include the issue of improper corroborating testimony in his post-trial motion. The issue is waived. People v. Volkmar (1989), 183 Ill. App. 3d 149, 538 N.E.2d 1255; People v. Friesland (1985), 109 Ill. 2d 369, 488 N.E.2d 261.\nThe circuit court is affirmed.\nAffirmed.\nHARRISON and GOLDENHERSH, JJ., concur.", "type": "majority", "author": "JUSTICE HOWERTON" } ], "attorneys": [ "Daniel M. Kirwan and Michelle A. Zalisko, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.", "John Baricevic, State\u2019s Attorney, of Belleville (Kenneth R. Boyle, Stephen E. Norris, and Ellen Eder Irish, 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. LAVERN HEIDELBERG, Defendant-Appellant.\nFifth District\nNo. 5\u201488\u20140475\nOpinion filed November 8, 1989.\nDaniel M. Kirwan and Michelle A. Zalisko, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.\nJohn Baricevic, State\u2019s Attorney, of Belleville (Kenneth R. Boyle, Stephen E. Norris, and Ellen Eder Irish, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0743-01", "first_page_order": 765, "last_page_order": 769 }