{ "id": 2881976, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SILVIA NEGRETE, Defendant-Appellant", "name_abbreviation": "People v. Negrete", "decision_date": "1994-02-03", "docket_number": "No. 1-92-0046", "first_page": "27", "last_page": "32", "citations": [ { "type": "official", "cite": "258 Ill. App. 3d 27" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "386 N.E.2d 1160", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "69 Ill. App. 3d 18", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3241387 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/69/0018-01" ] }, { "cite": "412 N.E.2d 541", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "82 Ill. 2d 268", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5476013 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ill-2d/82/0268-01" ] }, { "cite": "338 N.E.2d 168", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "61 Ill. 2d 583", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2965815 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-2d/61/0583-01" ] }, { "cite": "538 N.E.2d 834", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "182 Ill. App. 3d 949", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2618925 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/182/0949-01" ] }, { "cite": "595 N.E.2d 1148", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "230 Ill. App. 3d 1093", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5212111 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/ill-app-3d/230/1093-01" ] }, { "cite": "582 N.E.2d 1370", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "222 Ill. App. 3d 188", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5261607 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/ill-app-3d/222/0188-01" ] }, { "cite": "386 So. 2d 46", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9547221 ], "opinion_index": 0, "case_paths": [ "/so2d/386/0046-01" ] }, { "cite": "13 Kan. App. 2d 257", "category": "reporters:state", "reporter": "Kan. App. 2d", "case_ids": [ 355359 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/kan-app-2d/13/0257-01" ] }, { "cite": "8 Cal. App. 4th 362", "category": "reporters:state", "reporter": "Cal. App. 4th", "case_ids": [ 2320584 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/cal-app-4th/8/0362-01" ] }, { "cite": "10 Cal. Rptr. 2d 263", "category": "reporters:state", "reporter": "Cal. Rptr. 2d", "year": 1989, "opinion_index": 0 }, { "cite": "410 U.S. 113", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11957048 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/410/0113-01" ] }, { "cite": "477 N.E.2d 525", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "132 Ill. App. 3d 339", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3443434 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/ill-app-3d/132/0339-01" ] }, { "cite": "252 Ill. App. 3d 419", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2967673 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/252/0419-01" ] }, { "cite": "368 N.E.2d 926", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "53 Ill. App. 3d 424", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3390486 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/53/0424-01" ] }, { "cite": "456 N.E.2d 721", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "119 Ill. App. 3d 615", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3629158 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/119/0615-01" ] }, { "cite": "601 N.E.2d 735", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "151 Ill. 2d 175", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3291891 ], "opinion_index": 0, "case_paths": [ "/ill-2d/151/0175-01" ] }, { "cite": "600 N.E.2d 457", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "234 Ill. App. 3d 328", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5188494 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/234/0328-01" ] }, { "cite": "443 U.S. 307", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6182418 ], "weight": 3, "year": 1992, "pin_cites": [ { "page": "318-19" }, { "page": "573" }, { "page": "2788" } ], "opinion_index": 0, "case_paths": [ "/us/443/0307-01" ] } ], "analysis": { "cardinality": 744, "char_count": 12358, "ocr_confidence": 0.768, "pagerank": { "raw": 5.953886103131602e-08, "percentile": 0.3709330157858624 }, "sha256": "7e2ae4f5aa44b77c9119a15a06a441cc01582dd00e1b05479d4b69c0d0891184", "simhash": "1:3814358afb1efc47", "word_count": 2063 }, "last_updated": "2023-07-14T22:48:59.357066+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. SILVIA NEGRETE, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE CAHILL\ndelivered the opinion of the court:\nThe State charged defendant Silvia Negrete with attempted murder, aggravated battery, heinous battery, and cruelty to children for the scalding of her 17-month-old son. After a bench trial, she was convicted of heinous battery and sentenced to 45 years in prison. We affirm the conviction, but remand for a new sentencing hearing.\nOn May 16, 1990, defendant called an ambulance to her home, claiming that her son Luis was accidentally burned by hot water while receiving a bath in the kitchen sink. Although defendant told doctors Luis had been left alone in a sink with lukewarm water running, several doctors suggested that Luis\u2019 burns were the result of child abuse. Eventually, defendant was arrested and charged. Defendant waived her right to a jury trial.\nDemetra Soter, a board-certified pediatrician, testified at trial that she examined Luis while he was in the intensive care burn unit. Luis suffered second and third degree burns over 60% of his body, including his chest, genitals, back, and one leg. He was also emaciated and roughly the weight of a six-month-old child. Dr. Soter concluded from Luis\u2019 appearance that he was malnourished, essentially suffering from starvation. She also stated that when she first saw Luis in the intensive care unit, he was not expected to survive.\nDr. Soter testified extensively about the nature of Luis\u2019 burns. The pain caused by these burns was characterized as \"terrible,\u201d \"excruciating,\u201d and \"incredible.\u201d She testified that even children several months old will make an effort to escape from very hot water. The typical accidental hot water burn includes edges of burned area which are wavy as well as numerous splash marks: evidence of attempts to avoid the hot water. She emphasized that on Luis\u2019 body, however, there were clear, straight lines of demarcation between burned and unburned skin. She also noted virtually no evidence of burns caused by water splashing onto Luis\u2019 body.\nDr. Soter also testified that Luis\u2019 level of mental and physical development observed in the hospital was inconsistent with the possibility that Luis turned on the hot water himself while in the sink. Observation of Luis revealed that he was unaware of or unable to turn a spigot on a toy sink.\nDr. Soter concluded to a reasonable degree of medical certainty that Luis\u2019 burns were caused by someone holding him in a lateral position under a nonforceful flow of extremely hot water. Dr. Soter also testified that Luis\u2019 burns will result in permanent scarring across 60% of his body. The burning of Luis\u2019 genital region also may result in permanent damage to his reproductive capacity.\nThe State called Dr. Marrilee Brandt, the resident on call the night Luis was admitted to the hospital. Dr. Brandt testified about the medical procedures used when Luis was admitted. She made an extensive analysis of Luis\u2019 burns. Dr. Brandt corroborated the testimony of Dr. Soter, concluding to a 98% certainty that his burns were not the result of an accident.\nThe defense presented the testimony of Angelica Negrete, defendant\u2019s sister. She stated that defendant was. not known to be cruel to her children and was a good mother. She denied telling investigators that defendant tried to smother her children with pillows. She admitted accusing defendant on the day of the incident of deliberately scalding Luis. Angelica claimed, however, that this remark was a lie motivated by anger over an argument earlier in the day with the defendant.\nOn cross-examination, Angelica admitted telling investigators that when defendant was pregnant with Luis, defendant discussed an abortion with her and their mother. She also admitted telling investigators that defendant tried to smother Luis with a pillow because defendant did not want him. She explained that she was lying to the investigators when she made this statement because she was still angry from the argument with defendant.\nDefendant testified that on the day of the incident she was caring for Luis and his sister Gina, as well as her sister Angelica\u2019s two children. She decided to give Luis a bath. She put him in the sink and turned the water on. Both the hot and cold taps were open, resulting in a lukewarm flow. After leaving to get a towel, she decided to make the bed while the sink filled. After approximately six minutes, she heard Luis screaming and returned to the kitchen. Luis\u2019 skin was red and the water appeared to be very hot. She removed him from the sink and placed him on a bed. Later, she called an ambulance. She testified that she believed Luis was strong enough to turn off the cold water or to open the hot water tap completely. She also stated that she believed Luis was capable of crawling out of the sink. She told both the police and the doctors that the incident was an accident.\nAfter closing argument, the court found defendant guilty of heinous battery under section 12 \u2014 4.1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 12 \u2014 4.1). After a hearing, the court found two statutory aggravating factors and sentenced defendant to an extended term of 45 years\u2019 imprisonment. Defendant appealed.\nDefendant first argues that the evidence did not show beyond a reasonable doubt that she intentionally or knowingly caused her son\u2019s injuries. We will not find a verdict to be against the manifest weight of the evidence unless no rational trier of fact, after viewing the evidence in the light most favorable to the prosecution, could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia (1979), 443 U.S. 307, 318-19, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2788; People v. Sullivan (1992), 234 Ill. App. 3d 328, 600 N.E.2d 457.\nWe find the evidence here adequate to prove the defendant guilty beyond a reasonable doubt. Two medical experts agreed that it would be almost impossible for Luis\u2019 injuries to be self-inflicted. Together, these experts had examined thousands of burn victims with both accidental and intentional injuries. Their conclusions were reached after considering not only Luis\u2019 burns, but his general physical condition, his level of physical and mental development, and defendant\u2019s explanation of the injuries.\nDefendant offered no medical expert with a contrary opinion. The testimony of defendant\u2019s sister, corroborating defendant\u2019s testimony that the incident was an accident, was impeached by her pretrial statements. The trier of fact is the sole judge of the witnesses\u2019 credibility. (People v. Wittenmyer (1992), 151 Ill. 2d 175, 601 N.E.2d 735.) The court stated that it was \"absolutely clear on the basis of the evidence that has been received in this case that the injuries sustained were not self-inflicted.\u201d In light of the physical and circumstantial evidence, we find no error in the trial court\u2019s determination of guilt.\nDefendant next argues that the trial court improperly considered an allegation in a Department of Children and Family Services (DCFS) report that she made inconsistent statements about the circumstances in which her son was burned. Defendant contends the discussion of the report was hearsay. The DCFS report was not admitted into evidence and was not included in the record on appeal. Dr. Soter testified on direct examination that defendant\u2019s version of the events was inconsistent with the physical evidence. On cross-examination, defense counsel asked Dr. Soter if she had read \"the statement of Silvia Negrete concerning her version of how this happened.\u201d On re-direct, the prosecutor asked Dr. Soter if she \"also read the DCFS report\u201d in which defendant gave inconsistent explanations of the events. Defense counsel objected, and the court denied the objection.\nIt appears from the record that defense counsel later admitted that his reference to Negrete\u2019s statement was to one contained in the DCFS report, although this admission was not definitive. A defendant who introduces evidence, even though it may be improper, cannot complain about its admission. (People v. Jones (1983), 119 Ill. App. 3d 615, 456 N.E.2d 721.) Even if the statement referred to by defense counsel was not a statement included in the DCFS report, we find that defense counsel \"opened the door\u201d to an analysis of defendant\u2019s version of the events by discussing her statement. A defendant cannot complain of an admission of evidence which was invited by the defendant\u2019s own trial tactics. People v. Davis (1977), 53 Ill. App. 3d 424, 368 N.E.2d 926.\nDefendant finally argues that the judge improperly sentenced her, at least in part, to prevent her from becoming pregnant again. She argues that her sentence of 45 years should be reduced to the statutory minimum of six years or, in the alternative, that we remand her case for resentencing before a different judge. The State responds that defendant waived this point when she failed to object at sentencing or in a motion for reconsideration. Even if not waived, the State contends the record reveals the judge considered proper factors in support of an extended term and that the mere mention of other factors does not warrant remand.\nWe are not persuaded by the waiver argument. Although defendant did not object at sentencing or move to reconsider, we may address the issue if substantial rights are affected. (134 Ill. 2d R. 615(a).) Incarceration to prevent pregnancy clearly affects a substantial right.\nHeinous battery is a Class X felony. A sentence of not less than 6 nor more than 30 years is allowed. (Ill. Rev. Stat. 1989, ch. 38, pars. 12 \u2014 4.1(b), 1005 \u2014 8\u20141(a)(3).) A judge may impose an extended term of not less than 30 nor more than 60 years if any of the factors in aggravation set forth in section 5 \u2014 5\u20143.2(b) are found. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 \u2014 8\u20142(a)(2).) The judge found two in this case: the offense was accompanied by \"exceptionally brutal or heinous behavior indicative of wanton cruelty\u201d and the victim was under 12 years of age. (Ill. Rev. Stat. 1989, ch. 38, pars. 1005 \u2014 5\u20143.2(b)(2), (b)(4)(i).) So the sentence of 45 years was within the statutory range.\nBut the trial judge went beyond these findings. He also stated: \"And also, I believe it\u2019s a legitimate concern and a legitimate basis for removing Silvia Negrete from society as a whole to a situation where she will not become pregnant probably again. I think that\u2019s important. She has already demonstrated how she treats her young.\u201d\nA sentence imposed to deter pregnancy is improper. (People v. Bedenkop (1993), 252 Ill. App. 3d 419.) A woman\u2019s right to procreate is protected by the Federal Constitution. (People v. McCumber (1985), 132 Ill. App. 3d 339, 477 N.E.2d 525; Roe v. Wade (1973), 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705.) Although certain rights guaranteed by the constitution are lost upon conviction of a felony and by imprisonment, courts have rejected prevention of pregnancy as a justification for imposing a term of imprisonment. (Bedenkop, 252 Ill. App. 3d 419; People v. Zaring (1992), 10 Cal. Rptr. 2d 263, 8 Cal. App. 4th 362; State v. Mosburg (1989), 13 Kan. App. 2d 257, 768 P.2d 313; Wiggins v. State (Fla. App. 1980), 386 So. 2d 46.) We have found no contrary authority.\nWhere the trial judge considers an improper factor in sentencing, the case should be remanded for a new sentencing hearing. See, e.g., People v. Bennett (1991), 222 Ill. App. 3d 188, 582 N.E.2d 1370; People v. Wardell (1992), 230 Ill. App. 3d 1093, 595 N.E.2d 1148; People v. Sorice (1989), 182 Ill. App. 3d 949, 538 N.E.2d 834.\nWe affirm defendant\u2019s conviction, but remand for a new sentencing hearing before a different judge. People v. Bolyard (1975), 61 Ill. 2d 583, 338 N.E.2d 168, rev\u2019d on other grounds People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541; People v. Brooks (1979), 69 Ill. App. 3d 18, 386 N.E.2d 1160.\nAffirmed in part; reversed in part and remanded.\nJOHNSON and HOFFMAN, JJ\u201e concur.", "type": "majority", "author": "PRESIDING JUSTICE CAHILL" } ], "attorneys": [ "Rita A. Fry, Public Defender, of Chicago (Hugh Stevens, Assistant Public Defender, of counsel), for appellant.", "Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb and Judith M. Pietrucha, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SILVIA NEGRETE, Defendant-Appellant.\nFirst District (4th Division)\nNo. 1 \u2014 92\u20140046\nOpinion filed February 3, 1994.\nRita A. Fry, Public Defender, of Chicago (Hugh Stevens, Assistant Public Defender, of counsel), for appellant.\nJack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb and Judith M. Pietrucha, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0027-01", "first_page_order": 47, "last_page_order": 52 }