{
  "id": 5282531,
  "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID W. PHILLIPS, Defendant-Appellant",
  "name_abbreviation": "People v. Phillips",
  "decision_date": "1991-08-14",
  "docket_number": "No. 3-90-0655",
  "first_page": "370",
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  "last_updated": "2023-07-14T18:40:18.082759+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID W. PHILLIPS, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "JUSTICE BARRY\ndelivered the opinion of the court:\nA jury convicted the defendant, David W. Phillips, of aggravated kidnapping and aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, pars. 10 \u2014 2, 12 \u2014 14). After a hearing, he was sentenced to concurrent extended terms of 25 and 40 years, respectively. He appealed the sentences, and we reduced the extended-term sentence for aggravated kidnapping to a 15-year nonextended term of imprisonment and affirmed the 40-year term.\nPhillips subsequently filed a post-conviction petition based on People v. Ferguson (1989), 132 Ill. 2d 86, 547 N.E.2d 429, which held that a factor implicit in an offense, such as the age of the victim, cannot be used as an aggravating factor in sentencing. The petition was allowed and a new sentencing hearing was held, following which the trial court imposed an extended-term sentence of 36 years for the aggravated criminal sexual assault. Phillips now appeals this sentence.\nPhillips first contends that the extended-term sentence was not warranted because he did not act in an exceptionally brutal and heinous manner as the trial court found. We disagree.\nA summary of the evidence introduced at trial and at the first sentencing hearing can be found in our opinion issued in the first appeal. (People v. Phillips (1987), 159 Ill. App. 3d 483, 511 N.E.2d 1193.) A brief review of that evidence follows.\nPhillips, an acquaintance of the victim\u2019s mother, went to the victim\u2019s home around midnight on the evening in question. After speaking with the mother on the front porch for a short time, he asked to use the bathroom. Phillips entered the residence and removed the sleeping 21/2-year-old victim from the couch, exiting out the back door. He returned to the home, spoke with the mother for a few moments, and left. About 5 to 10 minutes later, the mother discovered her daughter was missing and called the police. Volunteers were gathered, and a massive search for the victim ensued. Phillips, who had driven away with the victim in his car, disrobed and anally raped the 2xk-year-old child. He then deposited her near a road at 3 a.m. and sped away. The victim was naked and crying.\nAn examination revealed redness around the vaginal and anal areas. The inner portion of the anal area was grossly enlarged and seminal material was obtained from a rectal swab. The day following the incident, the victim would not eat, play, or smile. She complained of pain and would not sit in her bath. The resentencing court was aware of the above-noted evidence.\nA reviewing court considering the appropriateness of a sentence must give great weight to the judgment of the trial court and should not alter the sentence imposed unless the court abused its discretion. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) The trial court may consider the nature and circumstances of the offense, including the nature and extent of each element of the offense as committed by the defendant. People v. Saldivar (1986), 113 Ill. 2d 256, 497 N.E.2d 1138.\nThe resentencing court did not abuse its discretion in finding that Phillips acted in a brutal and heinous manner. Phillips abducted a very young child from her mother\u2019s home in the middle of the night. Not only did he remove her clothes and sexually assault her, he left her naked by the side of a road at 3 a.m.\nAdditionally, we note that \u201cany contact, however slight, between the sex organ of one person and the sex organ, mouth or anus of another person\u201d constitutes sexual penetration for purposes of the instant offense. (Ill. Rev. Stat. 1989, ch. 38, par. 12 \u2014 12(f).) Clearly, the evidence of the victim\u2019s grossly enlarged anus and the seminal fluid that was found established that this was much more than slight contact. Indeed, this was contact of the most abhorrent kind with a very young child. In this case, the court\u2019s finding of brutal and heinous conduct to justify the imposition of an extended-term sentence upon Phillips was warranted. Therefore, the trial court did not err in imposing a 36-year extended term in the instant case.\nPhillips also contends that the resentencing court erred by considering the victim\u2019s age as an aggravating factor when the victim\u2019s age was an element of the offense. We find Phillips\u2019 contention without merit.\nAll the trial court\u2019s remarks were made in the context of deciding whether an extended-term sentence should be imposed. A careful reading of the record reveals that the court clearly stated that it was not considering the victim\u2019s age in determining whether to impose an extended term. Therefore, the trial court did not err in this regard.\nFurthermore, it is well settled that a defendant cannot complain on appeal of an alleged error which was invited or acquiesced in by him below. (People v. Gutierrez (1987), 156 Ill. App. 3d 555, 509 N.E.2d 787.) Again, a thorough reading of the record reveals that the trial court\u2019s remarks concerning the victim\u2019s age were in response to defense counsel\u2019s argument at resentencing. Therefore, since defense counsel invited the court\u2019s remarks, the defendant should not now be heard to complain.\nFinally, we note that in resentencing Phillips the court noted that his conduct made him eligible for an extended-term sentence and found that the conduct supported the original 40-year sentence. The court then considered in mitigation Phillips\u2019 progress in prison and his drug and alcohol therapy, and reduced the initial sentence by four years to a 36-year extended term. Considering all these circumstances, we cannot say that the trial court abused its discretion in re-sentencing Phillips.\nThe judgment of the circuit court of Tazewell County is affirmed.\nAffirmed.\nSTOUDER, P.J., and McCUSKEY, J., concur.",
        "type": "majority",
        "author": "JUSTICE BARRY"
      }
    ],
    "attorneys": [
      "Robert Agostinelli, of State Appellate Defender\u2019s Office, of Ottawa, for appellant.",
      "Erik I. Blanc, State\u2019s Attorney, of Pekin (Judith Z. Kelly, 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. DAVID W. PHILLIPS, Defendant-Appellant.\nThird District\nNo. 3 \u2014 90\u20140655\nOpinion filed August 14, 1991.\nRobert Agostinelli, of State Appellate Defender\u2019s Office, of Ottawa, for appellant.\nErik I. Blanc, State\u2019s Attorney, of Pekin (Judith Z. Kelly, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People."
  },
  "file_name": "0370-01",
  "first_page_order": 392,
  "last_page_order": 395
}