{ "id": 3317980, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONOVAN THINGVOLD, Defendant-Appellant", "name_abbreviation": "People v. Thingvold", "decision_date": "1978-12-21", "docket_number": "Nos. 77-470, 77-564 cons.", "first_page": "1002", "last_page": "1007", "citations": [ { "type": "official", "cite": "66 Ill. App. 3d 1002" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "352 N.E.2d 68", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "40 Ill. App. 3d 503", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2965548 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/40/0503-01" ] }, { "cite": "177 N.E.2d 120", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "122" } ], "opinion_index": 0 }, { "cite": "22 Ill. 2d 601", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2790543 ], "weight": 2, "pin_cites": [ { "page": "603-04" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/22/0601-01" ] }, { "cite": "294 N.E.2d 113", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "10 Ill. App. 3d 408", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5392518 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/10/0408-01" ] }, { "cite": "131 N.E. 149", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "298 Ill. 52", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5031549 ], "opinion_index": 0, "case_paths": [ "/ill/298/0052-01" ] }, { "cite": "150 N.E. 631", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1921, "opinion_index": 0 }, { "cite": "320 Ill. 233", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5161911 ], "year": 1921, "opinion_index": 0, "case_paths": [ "/ill/320/0233-01" ] }, { "cite": "115 N.E.2d 297", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1926, "pin_cites": [ { "page": "300" } ], "opinion_index": 0 }, { "cite": "1 Ill. 2d 90", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5315332 ], "weight": 2, "year": 1926, "pin_cites": [ { "page": "96" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/1/0090-01" ] } ], "analysis": { "cardinality": 610, "char_count": 11232, "ocr_confidence": 0.89, "pagerank": { "raw": 1.1891274237969057e-07, "percentile": 0.5909417884980939 }, "sha256": "750660c0d32ce2a8adee5e9faedabcd3fcaf00a8042485640393c875b43959c9", "simhash": "1:323d0229a2d09bed", "word_count": 1860 }, "last_updated": "2023-07-14T21:04:20.946597+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. DONOVAN THINGVOLD, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE WOODWARD\ndelivered the opinion of the court:\nFollowing a jury trial, defendant, Donovan Thingvold was found guilty of indecent liberties with a child and was sentenced to 10 to 20 years imprisonment. He appeals.\nRachael McFadden and Mildred Simms were seated in an automobile, parked approximately 20 to 30 feet from the Brooke Road Methodist Church; Mrs. McFadden was seated in the driver\u2019s seat while Mrs. Simms occupied the front passenger seat. Both women observed the defendant sitting in a stairwell at the church talking to the victim who was sitting on the railing of the stairwell. The victim was an eight-year-old girl, who due to mental retardation had a mental age of approximately five years. According to the two women, defendant lifted the victim onto his lap, so that her legs straddled him below his waist; he then kissed the victim several times. Next defendant laid the victim on her back, sideways across his lap. From their positions, the witnesses could only observe the back of defendant\u2019s upper left arm; at that time defendant\u2019s left arm was moving in a rapid rubbing or punching motion. In addition, Mrs. Simms testified that defendant laid his hand and rubbed on the victim\u2019s dress, below her waist and above her knees. The two women then drove to a nearby house and called police.\nRockford Police Officer John Versetti testified that he and his partner, Officer Brian Halsted, were dispatched to the Brooke Road Methodist Church. Upon arriving at the church, Versetti observed defendant walking out of a nearby laundromat with the victim. He stopped defendant and took him back to the squad car. After talking with the witnesses, Versetti brought defendant to the police station.\nRockford Police Detective Jessie Otwell testified that he interviewed defendant in the detective bureau of the Rockford Police Department. After defendant was advised of his rights, he agreed to make a statement. In the statement, defendant admitted being with the victim but stated that she had followed him, kissed him and sat down on his lap. He denied having sexual intercourse with her or masturbating or removing any of her clothes. He admitted being with the victim three or four times prior to the occurrence in question but denied ever having intercourse with her. He stated that he usually meets her in the park and that they kiss and he then buys her candy or pop or whatever she wants. Over defendant\u2019s objection, Detective Otwell testified that defendant admitted to having a \u201cproblem,\u201d admitted picking up girls in the park in the past, having spent eight years at Menard Correctional Center for a previous sexual incident and being treated at Singer Mental Health Center.\nAt the close of the State\u2019s case, defendant moved for a directed verdict, which motion was denied. The State and defendant then stipulated that: (1) defendant was over 17 years of age; (2) that the report of the Illinois Crime Bureau would show that there were no sperm found in any slides taken of the victim\u2019s vaginal area and no bruises or blood; and (3) that there was no evidence of any sperm on any of the defendant\u2019s or the victim\u2019s clothes. Defendant then renewed his motion for a directed verdict, which again was denied.\nOn appeal, defendant contends first that the State failed to prove him guilty beyond a reasonable doubt. The information in this case charged that defendant \u201ccommitted the offense of Indecent Liberties with a Child, in that he, with intent to arouse his sexual desires, lewdly fondled or touched the private parts of the victim.\u201d Defendant argues that the State failed to prove each material allegations contained in the information, namely, that the State failed to prove that defendant did in fact fondle or touch the private parts of the victim, and that nothing in the testimony of the two occurrence witnesses, Mrs. McFadden and Mrs. Simms, or in the statement of the defendant indicates that defendant did any of the acts charged in the information.\nDefendant appears to suggest that while the evidence may support the finding that he is guilty of conduct which would be a crime under the indecent liberties statute (Ill. Rev. Stat., 1975, ch. 38, par. 11 \u2014 4), it is not the conduct charged in the information. However, reviewing the testimony introduced at trial, we can not accept defendant\u2019s argument. While defendant\u2019s statement related only to the act of kissing between the victim and the defendant, both occurrence witnesses testified that while the victim lay sideways across defendant\u2019s lap, defendant\u2019s left arm was moving in a rapid rubbing or punching motion. Further, Mrs. Simms testified that the rubbing occurred on the victim\u2019s dress, below her waist and above her knees. Neither contact with a sex part nor actual physical injury to the child is essential to support a charge under the statute. People v. Kirilenko (1953), 1 Ill. 2d 90,115 N.E.2d 297; see also People v. Gilmore (1926), 320 Ill. 233,150 N.E. 631; People v. Johnson (1921), 298 Ill. 52,131 N.E. 149.\nFurther, defendant argues that the acts which were proved in this case to have been committed by him could not, consistent with due process, constitute the crime of indecent liberties with a child, and that any attempt to apply the Illinois statute to defendant\u2019s conduct here would be unconstitutional. He urges that all he is shown to have done was to have kissed the victim and punched or rubbed her dress somewhere between her knees and her waist; that there is no evidence suggesting that he removed either his own or the victim\u2019s clothing.\nIn People v. Polk (1973), 10 Ill. App. 3d 408, 294 N.E.2d 113, this court held the indecent liberties with a child statute constitutional, stating that any person of ordinary intelligence has fair notice of what conduct is proscribed by the statute. The gist of the offense is an act or acts on the part of the defendant coupled with the requisite mental state, namely, intent to arouse the sexual desires of either the child or person or both. In People v. Kirilenko, defendant\u2019s actions consisted of physically laying the child on a bed and kissing her twice. The court there stated:\n\u201cWhile neither act of itself would normally be considered immoral, indecent or improper, we believe that under the facts and circumstances of this case it becomes conduct which is sufficient to establish the corpus delicti and sustain the charge under the statute.\u201d (1 Ill. 2d 90, 96, 115 N.E.2d 297, 300.)\nLikewise here, by themselves, defendant\u2019s actions do not necessarily constitute the offense here charged. However, given the circumstances under which defendant was observed kissing and rubbing the victim on her dress, there was sufficient proof that defendant\u2019s acts were done with the requisite intent. Therefore, the application of the indecent liberties statute to the defendant\u2019s conduct here is neither a denial of due process nor violative of the Illinois Constitution.\nThe second issue raised on appeal is whether the trial court erred in failing to excise from defendant\u2019s statement to Detective Otwell which was admitted at trial, references to other incidences with young girls and his confinement to Menard for eight years for molesting a young girl. Prior to trial defendant made a motion in limine to have all references to acts with other young girls or to his prior criminal record excised from the statement before it was presented to the jury, and to prevent any testimony with regard to those portions of the statement. The trial court deleted a portion of the statement which indicated defendant had intercourse with a six-year-old girl in Wisconsin; it denied the remainder of the motion on the ground that the evidence showed a common scheme or purpose. At trial, during the testimony of Detective Otwell, the unexcised portions of the defendant\u2019s statement were brought out, to which defendant made timely objections. In addition, during closing argument, the prosecutor stated:\n\u201cYou know what he is doing out there. You know what he has in his mind. You know why he is there. You heard his other remarks how he likes women, he likes older women but he likes young girls, how he has been doing that to other girls in the park, how he has been kissing her, he denies touching her, how he has had this problem. # ft\nThere was no objection by the defendant to this statement.\nIn People v. Gregory (1961), 22 Ill. 2d 601, 177 N.E.2d 120, our supreme court stated:\n\u201cUnder our concepts of a fair and impartial criminal trial, it is elementary that a defendant, no matter how reprehensible his crime or how black his history of past misdeeds, is entitled to have his guilt or innocence determined solely with reference to the crime with which he is charged. Accordingly, it is well settled that evidence of other offenses unrelated to the crime for which a defendant is on trial is incompetent. And where such irrelevant material is contained in an otherwise competent statement or confession, it must be deleted before the statement or confession is read to the jury, unless to do so would seriously impair its evidentiary value.\u201d 22 Ill. 2d 601, 603-04, 177 N.E.2d 120, 122.\nThe State takes the position that while evidence of similar indecent liberties offenses with other children is improper, such evidence was only a minimal portion of defendant\u2019s statement, related in court by Detective Otwell. Further, that given the overwhelming evidence against defendant contained in the testimony of the occurrence witnesses, any error in the admission of the statement was harmless beyond a reasonable doubt.\nWe are of the opinion that the trial court erred when it refused to excise the portions of defendant\u2019s statement relating to prior incidents with other children. The trial court admitted the prior incidences on the theory that it showed a common scheme or design on the defendant\u2019s part; the record, however, fails to reveal sufficient evidence of similarity between these prior incidences and the one in the case before us. Further, there is no apparent justification for the admission of evidence of defendant\u2019s confinement at Menard and Singer. Lastly, we do not condone the reference of the prosecutor to defendant\u2019s prior activities, as quoted above.\nNevertheless, we have examined the record with great care and conclude that the error committed here is not reversible error. When all the competent evidence is considered and weighed there exists no reasonable probability that the jury would have acquitted the defendant had the evidence and remarks complained of been excluded. People v. Trejo (1976), 40 Ill. App. 3d 503, 352 N.E.2d 68.\nFor the foregoing reasons, we affirm the judgment of the circuit court of Winnebago County.\nAffirmed.\nSEIDENFELD, P. J., and GUILD, J., concur.", "type": "majority", "author": "Mr. JUSTICE WOODWARD" } ], "attorneys": [ "Mary Robinson and Mark J. Heyrman, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.", "Daniel D. Doyle, State\u2019s Attorney, of Rockford (Phyllis J. Perko and William L. Browers, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONOVAN THINGVOLD, Defendant-Appellant.\nSecond District\nNos. 77-470, 77-564 cons.\nOpinion filed December 21, 1978.\nMary Robinson and Mark J. Heyrman, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.\nDaniel D. Doyle, State\u2019s Attorney, of Rockford (Phyllis J. Perko and William L. Browers, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." }, "file_name": "1002-01", "first_page_order": 1024, "last_page_order": 1029 }