{ "id": 4260518, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENNETH L. HESTAND, Defendant-Appellant", "name_abbreviation": "People v. Hestand", "decision_date": "2005-11-04", "docket_number": "No. 4\u201403\u20140801", "first_page": "272", "last_page": "284", "citations": [ { "type": "official", "cite": "362 Ill. App. 3d 272" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "658 N.E.2d 445", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "pin_cites": [ { "page": "448", "parenthetical": "concurrent sentences were void when consecutive sentences are mandatory and appellate court had authority to correct error at any time" } ], "opinion_index": 0 }, { "cite": "168 Ill. 2d 107", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 307263 ], "year": 1995, "pin_cites": [ { "page": "112-13", "parenthetical": "concurrent sentences were void when consecutive sentences are mandatory and appellate court had authority to correct error at any time" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/168/0107-01" ] }, { "cite": "784 N.E.2d 792", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "pin_cites": [ { "page": "795" } ], "opinion_index": 0 }, { "cite": "203 Ill. 2d 111", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 799374 ], "year": 2003, "pin_cites": [ { "page": "115" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/203/0111-01" ] }, { "cite": "802 N.E.2d 333", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "pin_cites": [ { "page": "340" } ], "opinion_index": 0 }, { "cite": "345 Ill. App. 3d 305", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3738977 ], "year": 2003, "pin_cites": [ { "page": "313" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/345/0305-01" ] }, { "cite": "368 N.E.2d 882", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "pin_cites": [ { "page": "883" } ], "opinion_index": 0 }, { "cite": "68 Ill. 2d 149", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5809665 ], "year": 1977, "pin_cites": [ { "page": "153" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/68/0149-01" ] }, { "cite": "737 N.E.2d 626", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "page": "629" } ], "opinion_index": 0 }, { "cite": "193 Ill. 2d 203", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 963673 ], "year": 2000, "pin_cites": [ { "page": "209" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/193/0203-01" ] }, { "cite": "745 N.E.2d 673", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "pin_cites": [ { "page": "681" } ], "opinion_index": 0 }, { "cite": "319 Ill. App. 3d 520", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1527729 ], "year": 2001, "pin_cites": [ { "page": "529" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/319/0520-01" ] }, { "cite": "808 N.E.2d 1159", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2004, "pin_cites": [ { "page": "1168" } ], "opinion_index": 0 }, { "cite": "347 Ill. App. 3d 1044", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3950176 ], "year": 2004, "pin_cites": [ { "page": "1056" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/347/1044-01" ] }, { "cite": "501 U.S. 808", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1108176 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "825" }, { "page": "735" }, { "page": "2608" } ], "opinion_index": 0, "case_paths": [ "/us/501/0808-01" ] }, { "cite": "791 N.E.2d 702", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "705", "parenthetical": "even though trial court erred in admitting impact statement from victim's mother, section 9 precluded relief on appeal" }, { "page": "705" } ], "opinion_index": 0 }, { "cite": "339 Ill. App. 3d 712", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2469818 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "715", "parenthetical": "even though trial court erred in admitting impact statement from victim's mother, section 9 precluded relief on appeal" }, { "page": "715" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/339/0712-01" ] }, { "cite": "2001 Ill. Laws 2698", "category": "laws:leg_session", "reporter": "Ill. Laws", "opinion_index": 0 }, { "cite": "751 N.E.2d 1104", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 2001, "pin_cites": [ { "page": "1107" }, { "page": "1107" }, { "page": "1109" } ], "opinion_index": 0 }, { "cite": "196 Ill. 2d 225", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 351230 ], "weight": 3, "year": 2001, "pin_cites": [ { "page": "229" }, { "page": "230" }, { "page": "233" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/196/0225-01" ] }, { "cite": "622 N.E.2d 58", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 6, "year": 1993, "pin_cites": [ { "page": "59" }, { "page": "59" }, { "page": "59" }, { "page": "60" }, { "page": "60" } ], "opinion_index": 0 }, { "cite": "251 Ill. App. 3d 345", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2961869 ], "weight": 6, "year": 1993, "pin_cites": [ { "page": "346" }, { "page": "347" }, { "page": "347" }, { "page": "347" }, { "page": "347" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/251/0345-01" ] }, { "cite": "647 N.E.2d 946", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "pin_cites": [ { "page": "953" } ], "opinion_index": 0 }, { "cite": "164 Ill. 2d 279", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 476988 ], "year": 1995, "pin_cites": [ { "page": "293" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/164/0279-01" ] }, { "cite": "813 N.E.2d 181", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2004, "pin_cites": [ { "page": "193" } ], "opinion_index": 0 }, { "cite": "211 Ill. 2d 368", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 8451541 ], "year": 2004, "pin_cites": [ { "page": "387" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/211/0368-01" ] }, { "cite": "806 N.E.2d 1233", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2004, "pin_cites": [ { "page": "1245", "parenthetical": "the defendant's failure to raise a timely objection at trial and in a posttrial motion forfeits issue on appeal" } ], "opinion_index": 0 }, { "cite": "346 Ill. App. 3d 1121", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3832570 ], "year": 2004, "pin_cites": [ { "page": "1137", "parenthetical": "the defendant's failure to raise a timely objection at trial and in a posttrial motion forfeits issue on appeal" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/346/1121-01" ] }, { "cite": "821 N.E.2d 1176", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2004, "pin_cites": [ { "page": "1181" } ], "opinion_index": 0 }, { "cite": "213 Ill. 2d 509", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 8449100 ], "year": 2004, "pin_cites": [ { "page": "517" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/213/0509-01" ] }, { "cite": "808 N.E.2d 939", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2004, "pin_cites": [ { "page": "947" } ], "opinion_index": 0 }, { "cite": "209 Ill. 2d 194", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5461336 ], "year": 2004, "pin_cites": [ { "page": "209" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/209/0194-01" ] }, { "cite": "752 N.E.2d 410", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "pin_cites": [ { "page": "425" } ], "opinion_index": 0 }, { "cite": "196 Ill. 2d 236", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 351233 ], "year": 2001, "pin_cites": [ { "page": "259" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/196/0236-01" ] }, { "cite": "780 N.E.2d 669", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "pin_cites": [ { "page": "685" } ], "opinion_index": 0 }, { "cite": "202 Ill. 2d 189", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1442057 ], "year": 2002, "pin_cites": [ { "page": "217" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/202/0189-01" ] }, { "cite": "724 N.E.2d 572", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "page": "580" } ], "opinion_index": 0 }, { "cite": "311 Ill. App. 3d 374", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 415309 ], "year": 2000, "pin_cites": [ { "page": "384" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/311/0374-01" ] }, { "cite": "788 N.E.2d 1117", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "1121" } ], "opinion_index": 0 }, { "cite": "203 Ill. 2d 335", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 799372 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "342" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/203/0335-01" ] }, { "cite": "363 N.E.2d 838", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1977, "pin_cites": [ { "page": "844" } ], "opinion_index": 0 }, { "cite": "66 Ill. 2d 551", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5463653 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "566" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/66/0551-01" ] }, { "cite": "368 U.S. 157", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6169499 ], "weight": 3, "year": 1961, "pin_cites": [ { "page": "164" }, { "page": "214" }, { "page": "251" } ], "opinion_index": 0, "case_paths": [ "/us/368/0157-01" ] }, { "cite": "394 U.S. 111", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168803 ], "weight": 3, "year": 1969, "pin_cites": [ { "page": "112" }, { "page": "136" }, { "page": "947" } ], "opinion_index": 0, "case_paths": [ "/us/394/0111-01" ] }, { "cite": "701 N.E.2d 1097", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "1099" }, { "page": "1099" } ], "opinion_index": 0 }, { "cite": "183 Ill. 2d 425", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 209985 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "429-30" }, { "page": "430" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/183/0425-01" ] }, { "cite": "759 N.E.2d 83", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "pin_cites": [ { "page": "95", "parenthetical": "Cook, J., dissenting" } ], "opinion_index": 1 }, { "cite": "325 Ill. App. 3d 624", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 569728 ], "year": 2001, "pin_cites": [ { "page": "638", "parenthetical": "Cook, J., dissenting" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/325/0624-01" ] }, { "cite": "636 N.E.2d 114", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 1 }, { "cite": "263 Ill. App. 3d 435", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5369443 ], "year": 1994, "opinion_index": 1, "case_paths": [ "/ill-app-3d/263/0435-01" ] }, { "cite": "688 N.E.2d 57", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "65-66" }, { "page": "66" } ], "opinion_index": 1 }, { "cite": "179 Ill. 2d 55", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 801363 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "73-74" }, { "page": "74" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/179/0055-01" ] }, { "cite": "708 N.E.2d 1114", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "pin_cites": [ { "page": "1121", "parenthetical": "\"we find no justification for disturbing any statutorily sound sentence imposed against any defendant under the void truth-in-sentencing law\"" } ], "opinion_index": 1 }, { "cite": "186 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 243853 ], "year": 1999, "pin_cites": [ { "page": "17", "parenthetical": "\"we find no justification for disturbing any statutorily sound sentence imposed against any defendant under the void truth-in-sentencing law\"" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/186/0001-01" ] }, { "cite": "657 N.E.2d 1005", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "1008", "parenthetical": "improper chilling effect on appeal" }, { "page": "1007-08" } ], "opinion_index": 1 }, { "cite": "167 Ill. 2d 439", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 222762 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "447", "parenthetical": "improper chilling effect on appeal" }, { "page": "445" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/167/0439-01" ] }, { "cite": "395 U.S. 711", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1772134 ], "weight": 3, "year": 1969, "pin_cites": [ { "page": "725" }, { "page": "669" }, { "page": "2080" } ], "opinion_index": 1, "case_paths": [ "/us/395/0711-01" ] } ], "analysis": { "cardinality": 1206, "char_count": 28979, "ocr_confidence": 0.775, "pagerank": { "raw": 1.6154464703034273e-07, "percentile": 0.6863521772891006 }, "sha256": "da7a992a7b9aad09972f6f67bc4f18fdfa75ad97d8e074c3688391e4db466d33", "simhash": "1:20bed48e37470016", "word_count": 4910 }, "last_updated": "2023-07-14T16:28:25.526171+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. KENNETH L. HESTAND, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE TURNER\ndelivered the opinion of the court:\nIn May 2001, the State charged defendant, Kenneth L. Hestand, with two counts of criminal sexual assault and two counts of aggravated criminal sexual abuse. In July 2003, a jury found defendant guilty on three counts. In August 2003, the trial court imposed a 15-year prison sentence on the criminal-sexual-assault conviction and concurrent 7-year terms on the aggravated-criminal-sexual-abuse convictions.\nOn appeal, defendant argues (1) his aggravated-criminal-sexual-abuse conviction for fondling the victim\u2019s vagina must be vacated pursuant to the one-act, one-crime rule, (2) he was denied a fair trial when a witness read defendant\u2019s statement to police to the jury, and (3) the trial court improperly considered multiple victim-impact statements and imposed an excessive sentence. We affirm in part, vacate in part, and remand with directions.\nI. BACKGROUND\nIn May 2001, the State charged defendant with two counts of criminal sexual assault (720 ILCS 5/12 \u2014 13(a)(1), (a)(2) (West 2000)), alleging he committed an act of sexual penetration with T.H. in that by the use of force he placed his penis in her vagina (count I) and knowing that T.H. was unable to give knowing consent he committed an act of sexual penetration by placing his penis in her vagina (count II). The State also charged defendant with two counts of aggravated criminal sexual abuse (720 ILCS 5/12 \u2014 16(c)(l)(ii) (West 2000)), alleging defendant, over the age of 17, committed an act of sexual conduct with T.H., at least 13 years of age but under 17 years of age, in that he knowingly and by the use of force fondled T.H.\u2019s vagina for the purpose of his sexual arousal (count III) and knowingly and by the use of force fondled T.H.\u2019s breast for the purpose of his sexual arousal (count IV). Defendant pleaded not guilty.\nIn July 2003, defendant\u2019s jury trial commenced. T.H. testified she knew defendant through Delores Marrow, the sister of her guardian\u2019s husband. On May 12, 2001, T.H. was asleep on the couch when defendant knocked on the door and asked for Marrow. Defendant then asked about the best place to eat, and T.H. made a suggestion but declined an invitation to go with him. After defendant left, T.H. went back to sleep. Later, T.H. walked to a festival in Greenup. Defendant drove up and asked T.H. where the best place to go fishing was. T.H. tried to give him directions and later told him she would show him if he bought her a pack of cigarettes. T.H. entered the van and they headed west. Defendant had her \u201cduck\u201d whenever he passed certain apartments, but T.H. did not find that unusual. They eventually ended up \u201cunderneath the bridge\u201d and both exited the van. After pointing out a fishing spot, defendant told T.H. she was beautiful and that when she turned 18 he would take her away and marry her. T.H. was shocked and turned around to walk back to the van. Defendant then grabbed her arm and pulled her toward him. He then started hugging and kissing her. T.H. pulled away and started running. She tried to run up the hill but changed directions and tried to go to the van.\nT.H. testified defendant unlocked the van and she got in the front seat. Defendant started to fondle her breasts. He then pulled down her pants and underwear. Defendant undid his pants and said, \u201c \u2018See what you did?\u2019 \u201d T.H. glanced down and noticed \u201chis penis was hard.\u201d Defendant told her to touch his penis, but she refused. He then grabbed her hand, put it on his penis, and \u201cstarted moving [her] hand back and forth.\u201d She then jerked her hand away. Thereafter, defendant placed his penis in her vagina \u201cfor a couple of minutes.\u201d T.H. attempted to fight and tried to pull up her pants. Defendant kept pulling her pants down and said she would never see her family again. T.H. told him she was going to tell, and he said, \u201c \u2018Oh, well\u2019 \u201d and told her not to shave her vagina. T.H. stated she never saw defendant ejaculate and he had trouble maintaining an erection. Thereafter, defendant drove to Dairy Queen to eat and to the gas station for cigarettes. Defendant gave her one pack and said for the second one she had to give him a \u201cblow job.\u201d T.H. refused, and defendant dropped her off at the municipal building. T.H. could not find her friends and started looking for a police officer.\nSpecial Agent A1 Duncan of the Illinois State Police testified he interviewed T.H. and defendant. Agent Duncan stated T.H. was \u201cupset,\u201d \u201ccrying,\u201d and \u201cnervous.\u201d After T.H. stated defendant grabbed her arm, Agent Duncan noticed a bruise on her inside right biceps area. Defendant told him he took T.H. to Dairy Queen for something to eat and then dropped her off near the police station in Greenup. Defendant denied being at the bridge area. When Duncan told defendant tire tracks matching his van had been found near the area, defendant said he may have been out there the previous week. After Duncan said it had rained since then, defendant said he may have been out there earlier that day but he could not remember for sure. Defendant denied having sex with T.H. and stated it was difficult for him to achieve an erection because he had prostate problems. Duncan told him T.H. was at the hospital and an analysis could determine if they engaged in sex. Duncan testified he misinformed defendant as to the tire tracks, the rain, and the analysis at the hospital \u201cas it was an interrogation technique to try to elicit truthful information from a person.\u201d\nDefendant wanted to know whether T.H. stated the sex was consensual, and Duncan said she claimed defendant raped her. Defendant then stated the sex was consensual. Defendant told Duncan he was unable to maintain an erection, he did not get any satisfaction out of it, and \u201che did the best he could in his sexual performance but that he could not get, in his words, a [\u2018]hard on[\u2019] and did not ejaculate.\u201d Defendant then agreed to write a voluntary statement. Duncan read the statement to the jury:\n\u201cI, K.L. Hestand, had sex with [T.H.]. And she started it. She wanted it. Asked for it. So we went to a place she knowed [sic], and it was on a river. We had sex in the passenger seat of the vehicle. She say I\u2019m no good because I could not get [\u2018]hard on.[\u2019] And I did try the best I could. I did not get any satisfaction out of it.\u201d\nBill Cline, the Greenup chief of police, testified he found T.H. sitting on the sidewalk crying. He verified her age as being 16 and later took her to find the suspect and his vehicle. Cline then asked defendant, age 65, to come down to the police department to clear up the alleged accusation.\nDelores Marrow testified as a defense witness. She stated she had an intimate relationship with defendant. In May 2001, defendant had been treated for a blood clot in his leg. Marrow testified defendant was impotent \u201csometimes but not always.\u201d\nDefendant testified he would often take T.H. to the store to buy food and cigarettes because her family did not have any money. On May 12, 2001, defendant went to T.H.\u2019s house to see if Marrow was there. Later, T.H. came down to Marrow\u2019s trailer and asked defendant to buy her food and drop her off at home. Defendant bought her a pack of cigarettes and dropped her off at police headquarters. Later, defendant went to the police station after being contacted by the police. Defendant testified he never told Agent Duncan he had sex with T.H. although \u201cshe would try to hit on\u201d him. Defendant stated he had prostate problems and he had not \u201chad sex in a long time on account of it.\u201d Defendant denied having sex with T.H. He also stated he did not fondle her vagina or breasts because she \u201clooks nasty\u201d and he did not like \u201cnasty women.\u201d Defendant testified his written statement was untrue and he wrote it because Agent Duncan said that would \u201c \u2018be the end of it.\u2019 \u201d On cross-examination, defendant stated he confessed to something he did not do because he \u201cwas sick,\u201d he did not have his medicine, and the police officer was lying to him.\nAfter redirect examination, the State informed the jury that defendant had been convicted of child molestation in Indiana in 1981. Following closing arguments, the jury found defendant guilty of criminal sexual assault (count I) and aggravated criminal sexual abuse (counts III and IV).\nIn August 2003, the trial court conducted defendant\u2019s sentencing hearing. The court considered the evidence in aggravation and mitigation and gave the appropriate weight to the unsworn victim-impact statements from the victim and her foster mother. The court sentenced defendant to 15 years in prison on count I and concurrent 7-year terms on counts III and IV This appeal followed.\nII. ANALYSIS\nA. One-Act, One-Crime Rule\nDefendant argues his conviction for aggravated criminal sexual abuse (count III) must be vacated under the one-act, one-crime rule because it was based on the same physical act as his criminal-sexual-assault conviction. The State argues two offenses were carved from two separate acts. We agree with the State.\nInitially, we note defendant did not raise this issue in a posttrial motion. Thus, defendant has forfeited this issue on appeal. People v. Smith, 183 Ill. 2d 425, 429-30, 701 N.E.2d 1097, 1099 (1998). However, even though defendant has forfeited his claim of error, \u201cplain errors affecting substantial rights may be reviewed on appeal.\u201d Smith, 183 Ill. 2d at 430, 701 N.E.2d at 1099. As it is a denial of due process to convict a defendant on a charge without evidence to support that conviction (Gregory v. City of Chicago, 394 U.S. 111, 112, 22 L. Ed. 2d 134, 136, 89 S. Ct. 946, 947 (1969), citing Garner v. Louisiana, 368 U.S. 157, 164, 7 L. Ed. 2d 207, 214, 82 S. Ct. 248, 251 (1961)), we will review defendant\u2019s claim of error.\nDefendant\u2019s argument relies primarily on the one-act, one-crime jurisprudence set forth by our supreme court in People v. King, 66 Ill. 2d 551, 363 N.E.2d 838 (1977), and People v. Crespo, 203 Ill. 2d 335, 788 N.E.2d 1117 (2001). In reviewing the one-act, one-crime rule, this court has stated, in part, as follows:\n\u201c[T]he King doctrine provides that a defendant\u2019s conduct cannot result in multiple convictions if the convictions are based on precisely the same physical act and any of the offenses are included offenses.\u201d People v. White, 311 Ill. App. 3d 374, 384, 724 N.E.2d 572, 580 (2000), citing King, 66 Ill. 2d at 566, 363 N.E.2d at 844.\nIn the case sub judice, defendant argues his convictions in counts I and III were based on the single act of penetrating T.H.\u2019s vagina. In Crespo, 203 Ill. 2d at 342, 788 N.E.2d at 1121, the supreme court examined the charging instruments and the way the State presented the case in closing arguments. Here, the charging instruments differentiated the offenses charged. Count I charged defendant with criminal sexual assault, alleging he committed an act of sexual penetration by placing his penis in T.H.\u2019s vagina. Count III charged defendant with aggravated criminal sexual abuse, alleging he committed an act of sexual conduct by fondling T.H.\u2019s vagina for the purpose of his sexual arousal. Further, during closing arguments, the State argued defendant committed an act of sexual penetration with his penis and touched her vagina. Penetration and fondling are two separate acts. Thus, defendant has not set forth any error of the one-act, one-crime rule under King and Crespo.\nIn his reply brief, defendant agrees penetration and fondling are two separate acts. However, he now raises the argument the State failed to present evidence proving he fondled T.H.\u2019s vagina, thereby requiring reversal of his conviction for aggravated criminal sexual abuse. With this argument, we agree.\nWhen reviewing a challenge to the sufficiency of the evidence in a criminal case, the relevant inquiry is whether, when viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Pollock, 202 Ill. 2d 189, 217, 780 N.E.2d 669, 685 (2002). The trier of fact has the responsibility to determine the credibility of witnesses and the weight given to their testimony, to resolve conflicts in the evidence, and to draw reasonable inferences from that evidence. People v. Ortiz, 196 Ill. 2d 236, 259, 752 N.E.2d 410, 425 (2001). A court of review will not overturn the verdict of the fact finder \u201cunless the evidence is so unreasonable, improbable[,] or unsatisfactory that it raises a reasonable doubt of defendant\u2019s guilt.\u201d People v. Evans, 209 Ill. 2d 194, 209, 808 N.E.2d 939, 947 (2004).\nIn this case, T.H. testified defendant fondled her breasts when they were in the van. He then pulled down her pants and underwear. Defendant undid his pants and put T.H.\u2019s hand on his penis. After T.H. \u201cjerked\u201d her hand away, defendant penetrated her vagina with his penis. T.H. attempted to fight and pull up her pants, but defendant kept pulling them down. No evidence was presented that defendant used his hand in fondling T.H.\u2019s vagina. During closing statements, the State argued \u201cobviously if [defendant] was *** committing an act of sexual penetration, he was also touching her there in the vaginal region.\u201d On appeal, the State contends defendant fondled T.H.\u2019s vagina when he removed her clothing and penetrated her vagina with his penis.\nWe find the State has failed to show defendant committed an act of sexual conduct by fondling T.H.\u2019s vagina. T.H.\u2019s testimony that defendant removed her pants and underwear did not indicate he touched or fondled her vagina. No testimony was elicited that defendant\u2019s hands came near T.H.\u2019s vaginal region. Further, the evidence indicating defendant\u2019s penis came into contact with T.H.\u2019s vagina established an act of sexual penetration. Such evidence did not establish an act of fondling by defendant. As the evidence failed to prove defendant guilty beyond a reasonable doubt of count III, defendant\u2019s conviction for aggravated criminal sexual abuse must be vacated.\nB. Defendant\u2019s Police Statement\nDefendant argues he was denied a fair trial when Agent Duncan read the entirety of defendant\u2019s statement to police to the jury. We disagree.\nOur supreme court has held that for an issue to be preserved for review on appeal, a defendant must offer an objection at trial and include that issue in a written posttrial motion. People v. Breedlove, 213 Ill. 2d 509, 517, 821 N.E.2d 1176, 1181 (2004); see also People v. Durgan, 346 Ill. App. 3d 1121, 1137, 806 N.E.2d 1233, 1245 (2004) (the defendant\u2019s failure to raise a timely objection at trial and in a posttrial motion forfeits issue on appeal). In this case, defendant did not raise the issue regarding the reading of his police statement in a posttrial motion. Defendant has therefore forfeited this issue on appeal unless plain error has occurred. \u201cThe plain[-]error rule allows a reviewing court to consider a trial error not properly preserved when \u2018(1) the evidence in a criminal case is closely balanced or (2) where the error is so fundamental and of such magnitude that the accused was denied a right to a fair trial.\u2019 \u201d People v. Harvey, 211 Ill. 2d 368, 387, 813 N.E.2d 181, 193 (2004), quoting People v. Byron, 164 Ill. 2d 279, 293, 647 N.E.2d 946, 953 (1995). Here, the evidence was not closely balanced, and the admission of the evidence in question did not deny defendant fundamental fairness.\nEven if the plain-error rule did apply, we would find no error on the merits. The case relied upon by defendant, People v. Ammons, 251 Ill. App. 3d 345, 622 N.E.2d 58 (1993), is readily distinguishable. In that case, the defendant argued for reversal of his first-degree-murder conviction because the State replayed an audiotape of his statement to police during rebuttal closing argument. Ammons, 251 Ill. App. 3d at 346, 622 N.E.2d at 59. The tape had been played to the jury during a detective\u2019s testimony, and the defendant\u2019s testimony was similar to the statement he gave to police. Ammons, 251 Ill. App. 3d at 347, 622 N.E.2d at 59. The defendant objected to replaying the taped statement during rebuttal and claimed on appeal it overemphasized the State\u2019s critical piece of evidence. Ammons, 251 Ill. App. 3d at 347, 622 N.E.2d at 59.\nOn appeal, the Third District noted reading from the trial transcript during closing arguments is improper. Ammons, 251 Ill. App. 3d at 347, 622 N.E.2d at 60. In reversing the defendant\u2019s conviction, the appellate court found he had been severely prejudiced because allowing the replay of his taped statement during rebuttal \u201cdramatically overemphasized its credibility.\u201d Ammons, 251 Ill. App. 3d at 347, 622 N.E.2d at 60.\nIn this case, the State did not attempt to introduce any tapes of defendant\u2019s statements to the police. No tape was played to the jury nor was one played during closing arguments. Instead, Agent Duncan read defendant\u2019s one-page, handwritten statement to the jury. Such testimony was necessary considering defendant\u2019s nearly illegible handwriting. Further, Duncan\u2019s reading of the statement did not overemphasize the evidence or deprive defendant of a fair trial. Thus, we find no error in Duncan\u2019s testimony.\nC. Defendant\u2019s Sentence\nDefendant argues his sentence was excessive in light of his age and medical condition and the trial court\u2019s improper consideration of multiple victim-impact statements. We disagree.\nSection 6 of the Rights of Crime Victims and Witnesses Act (Act) (725 ILCS 120/6 (West 2000)) provides the victims of violent crimes with the right to present a victim-impact statement. An offense involving sexual conduct or sexual penetration constitutes a violent crime. 725 ILCS 120/3(c) (West 2000). In People v. Richardson, 196 Ill. 2d 225, 229, 751 N.E.2d 1104, 1107 (2001), the supreme court found the Act allowed for the presentation of only one victim-impact statement at sentencing. We note the statute has since been amended (Pub. Act 92 \u2014 412, \u00a7 5, eff. January 1, 2002 (2001 Ill. Laws 2698, 2698)), allowing for impact statements from the victim and the victim\u2019s parent or guardian, among others. See 725 ILCS 120/6 (West 2002). Even though the supreme court found error in the trial court\u2019s consideration of three victim-impact statements, the court stated article I, section 8.1(d), of the Illinois Constitution (Ill. Const. 1970, art. I, \u00a7 8.1(d)) precluded appellate relief on the ground that more than one victim-impact statement had been considered at sentencing. Richardson, 196 Ill. 2d at 230, 751 N.E.2d at 1107. Section 9 of the Act also states \u201c[n]othing in this Act shall create a basis for vacating a conviction or a ground for appellate relief in any criminal case\u201d (725 ILCS 120/9 (West 2000)). Thus, defendant is not entitled to relief. See People v. Harth, 339 Ill. App. 3d 712, 715, 791 N.E.2d 702, 705 (2003) (even though trial court erred in admitting impact statement from victim\u2019s mother, section 9 precluded relief on appeal).\nFurther, the admission of Lisa Devall\u2019s statement did not amount to a due-process violation. \u201cDue process bars the introduction of evidence that is so unduly prejudicial that it renders the sentencing hearing fundamentally unfair.\u201d Harth, 339 Ill. App. 3d at 715, 791 N.E.2d at 705, citing Payne v. Tennessee, 501 U.S. 808, 825, 115 L. Ed. 2d 720, 735, 111 S. Ct. 2597, 2608 (1991), and Richardson, 196 Ill. 2d at 233, 751 N.E.2d at 1109. Here, the trial court considered the evidence in aggravation and mitigation. As to the victim-impact statements, the court noted they were unsworn and gave the \u201cappropriate weight to unsworn testimony at a sentencing hearing of a serious nature.\u201d The court then focused on defendant\u2019s criminal history, his character, the element of deterrence, and his health problems and age. Defendant exaggerates the court\u2019s reliance on the statements, and we find no violation of due process.\nMoreover, we find the trial court\u2019s sentence was not excessive. A trial court has broad discretion in imposing a sentence. People v. Patterson, 347 Ill. App. 3d 1044, 1056, 808 N.E.2d 1159, 1168 (2004). \u201cIn determining an appropriate sentence, a defendant\u2019s history, character, and rehabilitative potential, along with the seriousness of the offense, the need to protect society, and the need for deterrence and punishment, must be equally weighed.\u201d People v. Hernandez, 319 Ill. App. 3d 520, 529, 745 N.E.2d 673, 681 (2001).\nOn review, a trial court\u2019s sentencing decision is entitled to great deference \u201cbecause the trial court is generally in a better position than the reviewing court to determine the appropriate sentence.\u201d People v. Stacey, 193 Ill. 2d 203, 209, 737 N.E.2d 626, 629 (2000). Thus, a trial court\u2019s decision as to the appropriate sentence will not be overturned absent an abuse of discretion. People v. Perruquet, 68 Ill. 2d 149, 153, 368 N.E.2d 882, 883 (1977); People v. Rathbone, 345 Ill. App. 3d 305, 313, 802 N.E.2d 333, 340 (2003).\nIn this case, a jury found defendant guilty of criminal sexual assault and aggravated criminal sexual abuse. Criminal sexual assault is a Class 1 felony (720 ILCS 5/12 \u2014 13(b)(1) (West 2000)) and carries a sentence of imprisonment of not less than 4 years and not more than 15 years (730 ILCS 5/5 \u2014 8\u20141(a)(4) (West 2000)). Aggravated criminal sexual abuse is a Class 2 felony (720 ILCS 5/12 \u2014 16(g) (West 2000)) and carries a sentence of imprisonment of not less than three years and not more than seven years (730 ILCS 5/5 \u2014 8\u20141(a)(5) (West 2000)). As the trial court\u2019s 15-year sentence for criminal sexual assault fell within the Class 1 felony sentencing range and its 7-year sentence for aggravated criminal sexual abuse fell within the Class 2 felony sentencing range, we will not disturb sentences within the permissible range absent an abuse of discretion.\nHere, the trial court focused on defendant\u2019s criminal history, including two prior sex-related felony offenses in Indiana. The court noted the need to deter others and found defendant demonstrated an inability or unwillingness to conform his conduct to the law. The court considered defendant\u2019s health problems and age but did not \u201clend a lot of weight to the fact that he would not be a threat to the community simply because of his health problems and his age.\u201d As the aggravating factors outweighed the evidence in mitigation, we find no abuse of discretion in the court\u2019s sentence.\nAlthough we have concluded the trial court did not abuse its discretion in sentencing defendant to the stated number of years for each count, we do find error with the court\u2019s imposition of concurrent sentences in this case. Section 5 \u2014 8\u20144(a) of the Unified Code of Corrections (730 ILCS 5/5 \u2014 8\u20144(a) (West 2000)) provides that consecutive sentences must be imposed when one of the offenses was a triggering offense. People v. Harris, 203 Ill. 2d 111, 115, 784 N.E.2d 792, 795 (2003). Criminal sexual assault is one of the listed triggering offenses requiring mandatory consecutive sentences. 730 ILCS 5/5 \u2014 8\u2014 4(a) (ii) (West 2000). Thus, the sentences imposed on counts I and IV must be consecutive. Defendant\u2019s concurrent sentences are void, and we must remand the cause for resentencing. See People v. Arna, 168 Ill. 2d 107, 112-13, 658 N.E.2d 445, 448 (1995) (concurrent sentences were void when consecutive sentences are mandatory and appellate court had authority to correct error at any time). Therefore, we vacate the concurrent sentences imposed and direct the trial court to conduct a new sentencing hearing and determine the appropriate sentences to be imposed consecutively as to the remaining two counts.\nIII. CONCLUSION\nFor the reasons stated, we affirm in part, vacate in part, and remand with directions.\nAffirmed in part and vacated in part; cause remanded with directions.\nAPPLETON, J., concurs.", "type": "majority", "author": "JUSTICE TURNER" }, { "text": "PRESIDING JUSTICE COOK,\nspecially concurring in part and dissenting in part:\nI agree the evidence was not sufficient to sustain a conviction on count III.\nIt is troublesome that we would find that one of defendant\u2019s convictions was not supported by any evidence but remand with the observation that defendant\u2019s total 15-year sentence could be increased to a total of 22 years. The State generally does not have the right to appeal or cross-appeal in a criminal case. See 188 Ill. 2d R. 604(a)(1). A reviewing court does not have the power to increase the punishment imposed by the trial court. See 134 Ill. 2d R. 615(b). Where a conviction has been set aside on direct appeal the court shall not impose a new sentence that is more severe than the prior sentence. 730 ILCS 5/5 \u2014 5\u20144 (West 2000). Section 5 \u2014 5\u20144 sets out requirements of due process. See North Carolina v. Pearce, 395 U.S. 711, 725, 23 L. Ed. 2d 656, 669, 89 S. Ct. 2072, 2080 (1969); People v. Kilpatrick, 167 Ill. 2d 439, 447, 657 N.E.2d 1005, 1008 (1995) (improper chilling effect on appeal).\nI can understand how a sentence of 3 years for a Class 1 felony, which carries a sentence of not less than 4 years and not more than 15 years, would be void. In this case, however, a total sentence of 15 years is not void. Even if a consecutive sentence had been imposed on all three offenses here, the trial court could have sentenced defendant to 10 years (4 plus 3 plus 3). The 15-year sentence was well within the power of the trial court. See People v. Reedy, 186 Ill. 2d 1, 17, 708 N.E.2d 1114, 1121 (1999) (\u201cwe find no justification for disturbing any statutorily sound sentence imposed against any defendant under the void truth-in-sentencing law\u201d).\nThe supreme court has stated that sentences imposed in violation of the mandatory consecutive sentences requirement are void, and there is no valid sentence to increase on remand. People v. Garcia, 179 Ill. 2d 55, 73-74, 688 N.E.2d 57, 65-66 (1997). Garcia, however, did not involve a case where sentences had actually been increased after remand and did not overrule or even address Kilpatrick. Garcia recognized that due process may be violated where a defendant can show actual vindictiveness on the part of the sentencing judge. Garcia, 179 Ill. 2d at 74, 688 N.E.2d at 66. It may be understandable for a trial court to increase the total sentence if that is simply the result of imposing consecutive minimum sentences. But why would a trial court increase the total sentence if it did not have to?\nThe argument that a void sentence may be corrected at any time seems to work only one way. We often reject a defendant\u2019s claim that he has not received the mandatory day-for-day sentence credit, or the mandatory $5-a-day sentence credit, on the basis that he has not filed the proper appeal. See, e.g., People v. Turner, No. 4\u201402\u20140336 (May 5, 2004) (unpublished summary order under Supreme Court Rule 23) (conceded sentence credit may not be allowed on postconviction petition). If a void sentence can be corrected at any time, we should consider those issues.\nSince section 5 \u2014 8\u20144 was amended to require mandatory consecutive sentences, there have been problems. Where a defendant is convicted of three counts of criminal sexual assault (720 ILCS 5/12\u2014 13(a)(3) (West 2000)), and the trial court feels a sentence of 12 years is appropriate, the trial court must be careful. If the trial court sentences defendant to four years on each count, mistakenly believing that the sentences are consecutive, the trial court may discover that it is limited to a sentence of four years. See People v. Todd, 263 Ill. App. 3d 435, 636 N.E.2d 114 (1994), abrogated by Kilpatrick, 167 Ill. 2d at 445, 657 N.E.2d at 1007-08. In a case where consecutive sentences are appropriate but one of the counts is reversed on appeal, the trial court may be limited to a sentence of 8 years, even though it believed each count warranted a sentence of 12 years.\nIn the converse situation, where the trial court believes the sentences are concurrent and imposes a 12-year sentence on each count, a subsequent finding that the sentences must be consecutive may impose pressure on the court to impose a 36-year sentence it never intended. The requirement for detailed calculation provides uncertainty and may result in a sentence not originally intended by the trial court. The problem is made worse by the fact that a prosecutor can charge a single criminal sexual assault as several offenses with mandatory consecutive sentences, by charging each touching as a separate act. See People v. Anderson, 325 Ill. App. 3d 624, 638, 759 N.E.2d 83, 95 (2001) (Cook, J., dissenting).", "type": "concurring-in-part-and-dissenting-in-part", "author": "PRESIDING JUSTICE COOK," } ], "attorneys": [ "Daniel M. Kirwan and Paige Clark Strawn, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.", "Barry Schaefer, State\u2019s Attorney, of Toledo (Norbert J. Goetten, Robert J. Biderman, and James C. Majors, 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. KENNETH L. HESTAND, Defendant-Appellant.\nFourth District\nNo. 4\u201403\u20140801\nOpinion filed November 4, 2005.\nCOOK, P.J., specially concurring in part and dissenting in part.\nDaniel M. Kirwan and Paige Clark Strawn, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.\nBarry Schaefer, State\u2019s Attorney, of Toledo (Norbert J. Goetten, Robert J. Biderman, and James C. Majors, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0272-01", "first_page_order": 290, "last_page_order": 302 }