{ "id": 2534242, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GEORGE PINTA, Defendant-Appellant", "name_abbreviation": "People v. Pinta", "decision_date": "1991-04-02", "docket_number": "No. 2-90-0255", "first_page": "1071", "last_page": "1078", "citations": [ { "type": "official", "cite": "210 Ill. App. 3d 1071" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "205 Ill. App. 3d 1067", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2565597 ], "pin_cites": [ { "page": "1071" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/205/1067-01" ] }, { "cite": "15 Ill. App. 3d 445", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2459972 ], "pin_cites": [ { "page": "446" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/15/0445-01" ] }, { "cite": "199 Ill. App. 3d 603", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2468434 ], "year": 1973, "pin_cites": [ { "page": "607" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/199/0603-01" ] }, { "cite": "123 Ill. App. 3d 788", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5677661 ], "pin_cites": [ { "page": "794" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/123/0788-01" ] }, { "cite": "88 Ill. 2d 541", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3083052 ], "year": 1984, "pin_cites": [ { "page": "544" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/88/0541-01" ] }, { "cite": "201 Ill. App. 3d 166", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2594646 ], "pin_cites": [ { "page": "185" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/201/0166-01" ] }, { "cite": "210 Ill. App. 3d 65", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2533784 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "70-71" }, { "page": "71-72" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/210/0065-01" ] }, { "cite": "106 Ill. 2d 237", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3138930 ], "year": 1991, "pin_cites": [ { "page": "261" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/106/0237-01" ] }, { "cite": "183 Ill. App. 3d 241", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2630056 ], "year": 1985, "pin_cites": [ { "page": "251" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/183/0241-01" ] }, { "cite": "30 Ill. 2d 143", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2829084 ], "year": 1989, "pin_cites": [ { "page": "146" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/30/0143-01" ] }, { "cite": "141 Ill. 2d 84", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3238507 ], "pin_cites": [ { "page": "104" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/141/0084-01" ] }, { "cite": "122 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550081 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "187" }, { "page": "186-87" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0176-01" ] } ], "analysis": { "cardinality": 777, "char_count": 17833, "ocr_confidence": 0.726, "pagerank": { "raw": 1.741658890989259e-07, "percentile": 0.7071201834547111 }, "sha256": "d16ae634eced5e09177224f92f88614a4aab42ccd88a38eb6304c9d77ace05f1", "simhash": "1:b3c37fae7a2d1d43", "word_count": 2981 }, "last_updated": "2023-07-14T22:48:57.765044+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. GEORGE PINTA, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE INGLIS\ndelivered the opinion of the court:\nDefendant, George Pinta, appeals his two convictions of battery under section 12 \u2014 3(aX2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 12 \u2014 3(aX2)) and raises two issues on appeal. The first issue is whether the trial court properly applied section 115 \u2014 10 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 115 \u2014 10(aX2)) in a prosecution for battery when it allowed the hearsay testimony of defendant\u2019s ex-wife regarding alleged sexual contact between defendant and the victims, his daughters. The second issue is whether defendant was proved guilty beyond a reasonable doubt of knowingly committing the offense of battery by touching the victims\u2019 groins when the alleged contact occurred during a tickling session initiated by the victims.\nDefendant\u2019s ex-wife, Donna Hames, was the first witness called at the bench trial and testified over defendant\u2019s objection. Hames testified that while she and defendant were married, they had two daughters, J.P., age 8, and K.P., age 10. In March 1984, the couples\u2019 marriage was dissolved. Hames was granted legal custody of the children, and defendant had visitation rights every other weekend, alternate holidays, and Wednesday evenings. Defendant had the children on the weekend of November 26, 1989, and on the following Wednesday evening, the daughters were scheduled to visit defendant again.\nFollowing an objection by defendant and legal arguments regarding the applicability of section 115 \u2014 10 of the Code, the court permitted Hames to testify further. Hames testified that K.P. told her that she did not want to go with defendant because he scares her and touches her in her privates. When Hames asked her how he does that, K.P. explained that defendant starts off by tickling her and her sister and then tickles them under the arms and grabs their breasts. K.P. told Hames that at other times defendant had tickled their legs and touched their privates. Hames testified that K.P. told her that defendant does this to them a lot and, specifically, that he did it the weekend of November 26, 1989. J.P. also told Hames that defendant had touched her in the same spots. J.P. reported that during that weekend, defendant had held her tightly between her legs and would not let go. J.P. said that he did the same thing to K.P. The girls were fully clothed at the time of the alleged incident. After they told their mother this information, defendant arrived, and the girls went with him to the library.\nOn cross-examination, Hames admitted that, although her marriage had been dissolved in 1984, she and defendant were back in court in 1985 to litigate child support and visitation rights. In 1989, defendant had filed a petition alleging that Hames had interfered with his visitation rights, and a judge warned her that he could enter sanctions, including a change in custody, for her interference of withholding the Wednesday visitations.\nThe State next examined J.P., age eight, with leading questions. She answered \u201c[n]o\u201d to the questions of whether her mother had told her what to say in court and whether she was making anything up. J.P. testified that on November 26, she and her sister were playing at their father\u2019s house. At one time, defendant squeezed them between their legs by the knees. She asked him to stop squeezing, but he would not. Finally defendant let go, and J.P. went to the washroom because she could hardly breathe. J.P. testified that defendant had not been tickling her that day. The day defendant had been tickling her, she said, \u201c[h]e tickled me under the arm and I think he accidentally got my chest.\u201d She was wearing clothes while she was tickled.\nThe prosecutor then gave J.P. a dressed, anatomically correct doll. She used the doll to show where defendant had tickled her. The prosecutor asked that the record reflect that the witness had indicated the breast portion of the doll. The court disagreed and stated for the record that she indicated under the armpit. J.P. then said defendant had touched her in another part, \u201cRight by where I go to the washroom,\u201d and indicated the groin area of the doll, according to the prosecutor and the court. J.P. then demonstrated defendant\u2019s hand movements, which was reflected in the record as a \u201cgrabbing motion.\u201d J.P. did not say anything to defendant about how she felt, although she felt \u201cgross.\u201d\nOn cross-examination, J.P. stated that she and her sister often wrestled with their father, jumped on him, and tickled him. On the day in question, she and K.P. had jumped on him together, wrestled with him, and rolled all over. They were tickling him when he tickled them. After a while, they got tired and later went next door to play with a neighbor girl.\nK.P., the next witness, responded that neither the prosecutor nor her mother had told her what to say in court. She testified that on November 26, 1989, she and J.P. were at defendant\u2019s house with defendant and his girlfriend, Karen. K.P., J.P. and defendant were watching television and then were playing on the floor, laughing, wrestling and tickling each other. K.P. used the doll to show where defendant tickled her. Over defendant\u2019s objection, the court let the record reflect that K.P. had indicated the crotch of the doll. She then explained that defendant had moved his hand while touching her between the legs, and she made an indication in court. K.P. testified that defendant tickled her and J.P. under the arm and the breast area. K.P. stated that she did not say anything to her father because she was scared of him. The court allowed K.E to testify that defendant had touched her in those private parts on previous occasions.\nOn cross-examination, K.P. testified that on November 26, 1989, they were watching football on television. She stated that she and her sister often wrestled with their father just for fun. They would jump on him, wrestle, tickle and laugh. On redirect examination, K.P. stated that immediately after the tickling, J.P. had run to the bedroom because defendant had thrown her down in a scissor lock.\nKaren Szilkowski had been defendant\u2019s girlfriend for two years. She testified that on November 26, 1989, she stood in the entranceway to the living room watching defendant and his two daughters. Defendant was watching the Bears football game on the television. K.P. came into the room and jumped on him and started tickling, as Karen had often seen her do. Defendant laughed and tickled back. Karen saw defendant\u2019s hands; he tickled the girl\u2019s rib-cage area and the outsides of her legs but nowhere else. J.P. then jumped in and started tickling both K.P. and defendant. Karen saw defendant touch J.P. on her back, her rib cage and the lower, outside part of her legs. Karen watched for two or three minutes, but missed seeing the end of their playing. Karen stated that the girls were laughing.\nDefendant testified on his own behalf. He claimed that he was sitting on the floor watching the football game when K.P. came into the room and started wrestling with him as she had done many times. J.P. then jumped into the play. The three tickled each other all over and laughed. The girls were fully clothed during the incident. Defendant testified that when K.P. jumped on him, he threw her off, and she rolled on the floor. Defendant then tickled her feet, and when J.P. jumped on him, he threw her off too. Defendant stated that one girl would be back on him as soon as he threw the other one off. Defendant testified that he tickled J.P. under the arms, under the neck and on the inner thigh by the knee where the girls were ticklish. Defendant stated that the three of them played for about five minutes and were laughing when they ended. The girls left the room and subsequently played with the neighbor. Defendant testified that the girls never said anything about the tickling, were not crying, and appeared normal and relaxed. They hugged and kissed defendant good-bye that evening. Defendant denied that he had tickled or even touched the girls in the groin area.\nThe trial court found defendant guilty of two charges of battery for knowingly making physical contact of an insulting nature with his daughters. Although defendant had argued that his ex-wife, Hames, had put the girls up to testifying against him, the trial court concluded that there was no substantial evidence that the children\u2019s testimony was in any way suggested, altered or manufactured. The court stated that it decided the cause based upon the credibility of the witnesses. The court found that the children\u2019s testimony, based on their demeanor, articulation and manner, was compelling and that the ex-wife\u2019s bitterness had not tainted their testimony. While J.P. stated that defendant had accidentally touched her chest, the court remarked that the manner in which she demonstrated the manipulation of the doll was convincing beyond a reasonable doubt. Defendant appeals.\nThe first issue before this court is whether the trial court erred in permitting Donna Hames to repeat the hearsay statements of the girls under the exception of section 115 \u2014 10 of the Code. That section provides in part:\n\u201c(a) In 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 of an out of court statement made by such child that he or she complained of such act to another; and\n(2) testimony of an out of court statement made by such child describing any complaint of such act or matter or detail pertaining to any act which is an element of an offense which is the subject of a prosecution for a sexual act perpetrated upon a child.\u201d (Ill. Rev. Stat. 1989, ch. 38, par. 115\u201410.)\nDefendant contends that section 115 \u2014 10 is not applicable to the offense of battery because the sexual contact is not an element of the offense.\nThe State argues that defendant has waived this issue because he failed to raise it in a post-trial motion. (People v. Enoch (1988), 122 Ill. 2d 176, 187.) Alternately, the State argues that the statute was properly applied in the battery prosecutions. Finally, the State argues that any such error was harmless because the girls themselves provided clear testimony against defendant. See People v. Holveck (1990), 141 Ill. 2d 84, 104.\nAlthough the issue was thoroughly argued before the trial court, the law in this State requires a post-trial motion for the trial court to have an opportunity to correct any mistakes; hence, the issue is waived in the case at bar due to defendant\u2019s failure to file a post-trial motion. (Enoch, 122 Ill. 2d at 186-87.) Even if the issue is not waived, we believe the trial court properly overruled defendant\u2019s objection to Hames\u2019 testimony. Section 115 \u2014 10 applies to a prosecution for any sexual act, including but not limited to those offenses where sexual conduct is an element of the offense. (Ill. Rev. Stat. 1989, ch. 38, pars. 12\u201413, 12\u201414, 12\u201415, 12\u201416.) Battery, as charged in this cause, requires a contact of an insulting nature. (Ill. Rev. Stat. 1989, ch. 38, par. 12\u2014 3(a)(2).) We believe that sexual contact which is nonconsensual or with a child is of an insulting nature, and thus these charges of battery involve a prosecution for a sexual act. For the exception to the hearsay rule to be applied, the statute also requires that the act be an element of the offense which is the subject of the prosecution. An insulting contact is an element of the batteries with which defendant was charged. Battery does not require that the insulting contact be sexual, but only that the act be insulting. We believe that section 115 \u2014 10 is broad enough to include the instant offenses. Hames testified to the girls\u2019 statements describing an act which was an element of battery; the hearsay consisted of the girls describing the act of an insulting nature. Therefore, defendant\u2019s objection to Hames\u2019 testimony was properly overruled based on section 115 \u2014 10.\nFinally, the result of the testimony was harmless because the testimony of the girls was by itself clear and convincing without Hames\u2019 corroboration. Moreover, defendant\u2019s case was partially strengthened by Hames\u2019 testimony. Defendant maintained that the prosecution was initiated by his vindictive ex-wife, who would try all means to deny him his rights to visitation. Without her testimony in support of the prosecution, defendant\u2019s theory of the case was weaker. Thus, any prejudice suffered by defendant on account of the overruling of his objection was slight.\nDefendant also alleges he was not proved guilty beyond a reasonable doubt because there was no evidence that he knowingly committed the offense of battery. Accusations of sexual misconduct are \u201ceasily made, hard to be proved, and harder to be defended.\u201d (People v. Nunes (1964), 30 Ill. 2d 143, 146; People v. Douglas (1989), 183 Ill. App. 3d 241, 251.) However, a reviewing court will not reverse the trial court\u2019s judgment unless the proof is so unsatisfactory, improbable or implausible as to justify a reasonable doubt regarding the defendant\u2019s guilt. People v. Collins (1985), 106 Ill. 2d 237, 261; see In re A.J.H. (1991), 210 Ill. App. 3d 65, 70-71; People v. Roy (1990), 201 Ill. App. 3d 166, 185.\nDefendant contends that no evidence was presented which could prove the essential elements of the charging instrument. (People v. Rothermel (1982), 88 Ill. 2d 541, 544; People v. Austin (1984), 123 Ill. App. 3d 788, 794.) Specifically, the information charged in count I that \u201csaid defendant without legal justification knowingly made physical contact of an insulting nature with [K.P.] in that he touched [K.P.] in the groin with his hand.\u201d Count II alleged identical language concerning J.P. Defendant contends that the element of knowledge was not proved beyond a reasonable doubt. (People v. Miller (1990), 199 Ill. App. 3d 603, 607; People v. Barrington (1973), 15 Ill. App. 3d 445, 446.) Defendant maintains that the prosecution did not prove that he acted with a conscious awareness that his conduct, wrestling and tickling, would be practically certain to cause contact of an insulting nature.\nDefendant quotes the definition of \u201cknowledge\u201d:\n\u201cA person knows, or acts knowingly or with knowledge of:\n(a) The nature or attendant circumstances of his conduct, described by the statute defining the offense, when he is consciously aware that his conduct is of such nature or that such circumstances exist. Knowledge of a material fact includes awareness of the substantial probability that such fact exists.\n(b) The result of his conduct, described by the statute defining the offense, when he is consciously aware that such result is practically certain to be caused by his conduct.\nConduct performed knowingly or with knowledge is performed wilfully, within the meaning of a statute using the latter term, unless the statute clearly requires another meaning.\u201d (Ill. Rev. Stat. 1989, ch. 38, par. 4\u20145.)\nDefendant contends that there is no evidence showing that he was consciously aware that his conduct was practically certain to cause conduct of an insulting nature. Defendant argues that his lack of the wrongful mental state may be inferred from the fact that the roughhousing, wrestling and tickling were initiated by the children.\nKnowledge is ordinarily proved by circumstantial evidence, rather than by direct proof, and the State must present sufficient evidence from which an inference of knowledge can be made, as the inference must be based on established facts and not pyramided on an intervening inference. (People v. Quiver (1990), 205 Ill. App. 3d 1067, 1071.) Without proof of the mental state, a conviction cannot be sustained. (A.J.H., 210 Ill. App. 3d at 71-72.) We note that while J.P. did use the word \u201caccidentally\u201d in her testimony, she was referring to defendant\u2019s brushing over her chest, and defendant in the case at bar was charged with touching the child\u2019s groin.\nWe believe that the trial court could draw an inference of knowledge from the manner in which the children held their hands over the crotch of the doll during their testimony. While the record cannot reflect with accuracy the manipulation of the doll, the record does suggest that the trial judge had a clear, objective view of the demonstration. The trial judge disagreed with both counsel concerning where the children were indicating while testifying with the doll. The manner in which the children were holding their hands could show that the hands remained on the crotch and that the fingers were grabbing rather than tickling in a glancing or brushing movement or that the hand passed over the groin accidentally. The fact that defendant kept his hand there or changed his finger movement from rotating to grabbing reasonably implies that he consciously knew he was making the contact which is insulting. Defendant did not contest that ordinarily a purposely placed hand on the crotch is insulting. Thus, the record does support a finding that a reasonable trier of fact could have found defendant guilty, and we must, therefore, affirm the conviction.\nFor the above reasons, the order of the trial court is affirmed.\nAffirmed.\nWOODWARD and UNVERZAGT, JJ., concur.", "type": "majority", "author": "JUSTICE INGLIS" } ], "attorneys": [ "Peter B. Nolte, of Sreenan & Cain, P.C., of Rockford, for appellant.", "Michael J. Waller, State\u2019s Attorney, of Waukegan (William L. Browers, Cynthia N. Schneider, and Martin P. Moltz, 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. GEORGE PINTA, Defendant-Appellant.\nSecond District\nNo. 2 \u2014 90\u20140255\nOpinion filed April 2, 1991.\nPeter B. Nolte, of Sreenan & Cain, P.C., of Rockford, for appellant.\nMichael J. Waller, State\u2019s Attorney, of Waukegan (William L. Browers, Cynthia N. Schneider, and Martin P. Moltz, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "1071-01", "first_page_order": 1093, "last_page_order": 1100 }