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People v. Barbour

OPINION FILED MAY 25, 1982.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

ASHTON R. BARBOUR, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. THEODORE M. SWAIN, Judge, presiding.

PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

Following a bench trial, defendant was convicted of rape and deviate sexual assault. Defendant was sentenced to seven years' imprisonment on the rape conviction; the trial court did not impose sentence on the deviate sexual assault conviction. Defendant appeals.

Defendant is an attorney and was employed, at the time of the incident in question, as an assistant public defender in Cook County. The complainant is a 23-year-old speech therapist. The parties met when defendant introduced himself to the complainant on a downtown Chicago street. A few phone calls followed and the complainant agreed to a dinner date with defendant.

On the evening of July 13, 1980, defendant picked up the complainant at her home on the south side of Chicago and the pair drove to a restaurant in Evanston. The complainant had one drink with dinner; defendant had three drinks. After dinner, they drove to a lagoon on the campus of Northwestern University. On the way to the campus, defendant stopped at a liquor store and bought a bottle of wine. The complainant testified that she suggested that defendant not buy the wine. The pair proceeded to the Northwestern lagoon, where they sat on the grass and conversed. Defendant drank some of the wine he had purchased; the complainant had only a sip.

After about an hour, defendant tried to kiss the complainant. She pulled away and said, "Let's go home." At about 11 p.m., the parties returned to defendant's car — a 1979 Toyota Celica coupe — and headed for the south side. Defendant stopped the car several times on the return trip. The first stop was in Evanston, where defendant pulled to the curb and resumed the conversation. After a short time, defendant began driving again. He stopped briefly near La Rabida Hospital on the south side. Defendant next stopped at a gas station where he used the men's room. A few blocks later, defendant again pulled to the curb. By this time, they were in the complainant's neighborhood. Defendant again tried to kiss the complainant and the complainant again resisted. She opened the car door and began to exit, telling defendant she would walk home, a distance of several blocks. The complainant testified that defendant responded, "Don't be a fool," and said he would drive her home. The complainant put her foot back in the car and closed the door.

Defendant then drove a short distance and pulled into an alley. When the complainant asked why he was stopping in the alley, defendant responded, "I like you. I like your background. I think you are beautiful. And you are irresistible. And I want some of your pussy." The complainant said, "No. Oh, no," and tried to open the car door. Defendant reached over and grabbed the complainant's arm. After several demands that she disrobe, defendant began forcibly removing her clothing. During this struggle, defendant moved a lever and dropped the complainant's seat back to the fully reclined position.

When his initial attempts to undress the complainant proved unsuccessful, defendant forced her to perform oral copulation. He did this by holding her by the hair and forcing her head onto his exposed penis while prying open her jaw with his hand. Defendant thereafter pushed the complainant back on the reclined seat and succeeded in removing her clothing, which consisted of a pullover blouse, a bra, a skirt, slip, and panties. Defendant got on top of the complainant, forced her legs apart, and performed an act of sexual intercourse. Complainant testified that she struggled and protested vocally throughout this episode.

After the intercourse, defendant returned to his side of the car. The complainant said, "I want to go home," and defendant indicated that he would take her home. The complainant put on her blouse and skirt as defendant drove to a nearby gas station. There, defendant put gas in the car while the complainant collected her clothing and other items. The complainant testified that she considered reporting the rape to the gas station attendant but decided not to when she saw him conversing with defendant.

Defendant asked the complainant if she had to go to the bathroom but she declined, saying she preferred to wait until she got home. Complainant did not leave the car while at the gas station. Defendant then drove out of the station, went a short distance and turned into another alley. Complainant protested, saying she thought defendant was going to take her home. She also stated she had to go to the bathroom. Defendant allowed her to relieve herself. He escorted her from the car and, maintaining constant physical contact, watched as she relieved herself behind the car. He then led her back to the car, where he again forcibly removed her skirt. After failing in an attempt to remove the complainant's blouse, defendant again grabbed the hair on her head and forced her head down on his penis. When he had completed this oral-genital contact, he pushed the complainant back onto the passenger seat and, when she continued to cry and plead, clapped his hand over her mouth. He then pulled her blouse off, forced her legs apart and performed a second act of sexual intercourse.

The car was parked at this time in an alley behind 7527 South Jeffrey. Curtis Hardaway III, a resident at that address, testified that he was awake at 2:30 a.m. on the morning of July 14 and heard what he thought was a baby crying in the alley. He also heard a female voice say, "Somebody help me." Curtis called the police and awakened his parents, Curtis and Yvonne Hardaway. Curtis' father, Curtis Hardaway, Jr., went on the back porch and called out, "What is going on?" or "Is everything all right?" He then walked toward the car he saw in the alley. Yvonne Hardaway followed.

After Curtis Hardaway called out from the back porch, defendant tried to start the car. The complainant opened the car door and attempted to exit. Defendant reached over and pulled the door shut while the complainant's right foot was outside of the car. After a brief struggle, the complainant withdrew her foot and defendant closed the door. Defendant again attempted to start the car. While he was thus distracted, the complainant clambered out the window on the passenger side of the car. Mr. Hardaway testified that the car was just beginning to move when the complainant jumped out. The car moved a few feet before the engine died. Nude, the complainant ran toward Mr. and Mrs. Hardaway. Yvonne Hardaway testified, "I asked her did he rape her. She said, `Yes.' And I asked her, did she know him? She said, `I thought I knew him.'"

The complainant asked Mr. Hardaway to get her clothing from the driver of the car. Hardaway went to the side of the car and took some articles of clothing from defendant. Mr. Hardaway noted that the passenger seat was in the fully reclined position and the driver's seat was partially reclined. After defendant failed in his attempts to start the car, he got out of the car, nude from the waist down. According to Mr. Hardaway, defendant "slugged around" for two or three minutes before putting his pants on. The police arrived a few minutes later.

The complainant was taken to South Shore Hospital and examined by Dr. Dedra Young. Dr. Young's report, admitted by stipulation, recited that the complainant denied physical injury and appeared to be "in a state of non-distress and alert." The complainant testified that she didn't report her ankle injury at the hospital because she was "still shook up, shocked." Edward Stern, an assistant State's Attorney assigned to the felony review unit, interviewed the complainant in the early morning on July 14. He testified that her ankle was bruised and swollen.

Defendant also testified. Needless to say, his account of the events in the two alleys differs from that of the complainant. Defendant stated that, in the first alley, the parties kissed and caressed and the complainant removed her own clothing and voluntarily engaged in sexual intercourse. After completing the act, defendant noticed that the complainant was crying. She said, "I didn't want it to happen this soon." Defendant then drove to a gas station and, after buying gas, drove into a second alley. Defendant there told the complainant, "I'd really like to make love to you again." Defendant testified that the complainant voluntarily removed her clothing for the second time, but began crying before the two could undertake any sexual activity. The complainant told defendant that he didn't ...


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