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People v. Schuning

OPINION FILED JULY 19, 1984.

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

v.

TIMOTHY M. SCHUNING, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Du Page County; the Hon. William E. Black, Judge, presiding.

JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:

In a jury trial, the defendant, Timothy M. Schuning, was found guilty of the offenses of rape (Ill. Rev. Stat. 1981, ch. 38, par. 11-1(a)) and unlawful restraint (Ill. Rev. Stat. 1981, ch. 38, par. 10-3(a)). The trial court entered a judgment of conviction with respect to the rape charge only, and subsequently sentenced the defendant to a seven-year term of imprisonment.

Defendant raises two issues on appeal: (1) whether the State failed to prove beyond a reasonable doubt that he committed the offense of rape; and (2) whether the trial court committed reversible error when it allowed the State to inform the jury, as impeachment evidence, that the defendant had been convicted of misdemeanor retail theft, for which he had received court supervision, and of criminal trespass to a motor vehicle.

At trial, Kathleen B., the complainant, testified that she had known the defendant for 2 1/2 years prior to the occurrence of the incident in question and that they were friends. They had the same friends and saw each other often. She admitted that she had previously engaged in a single act of sexual intercourse with the defendant in October 1981, in the basement of his parents' home in Lombard. She stated, in addition, that she had been at the defendant's residence many times before, which was located in the basement of his parents' home, and had stayed overnight in the house numerous times when the defendant's parents were not home. On those occasions the defendant and his brother and sometimes others were present in the home, but she spent those nights alone.

Late in the evening on October 6, 1982, the complainant telephoned the defendant to inquire how he was. When she learned he was not at home, she requested that the defendant return her call. According to the complainant, the defendant returned her call a short while later and invited her to his house. Because she did not want to walk in the dark, the defendant met her halfway.

They went to the basement of defendant's home, where they sat on a couch and talked, watched television, and drank a few beers. Eventually, the defendant began to tickle her, and she asked him to leave her alone. When the defendant continued to tickle her, she pulled back and told him to stop it. Then the defendant pushed her shoulders down and got on top of her. She struggled to free herself by trying to push the defendant away from her. At this point the defendant was sitting on her stomach, and his arms were holding down her shoulders. After the complainant told the defendant to leave her alone, he bit her on the right cheek. Then he told her to be quiet or else he would bite through her face.

The complainant related further that the defendant, who was still sitting on her stomach, turned his back toward her and began to undo her pants. She began to fight him, told him to leave her alone, and removed a comb from his pocket, using it to scratch him in the lower back. She told the defendant to leave her alone and to stop. After the defendant removed her pants and underpants, he turned around and got back on top of her. She was unable to get up. The defendant began to pinch the top of her breasts as he was lying on her. She placed her hands between her legs so the defendant could not do anything and told him again to leave her alone. The defendant bit her on the other cheek and told her to remove her hand. The defendant again bit her in the face, which hurt her. She did nothing because she was scared. Then the defendant had intercourse with her for a few minutes, during which time she tried to get away, and told the defendant to leave her alone.

The complainant dressed in a hurry, ran from the basement and immediately walked five or six blocks to the home of Dennis Phelps, a friend of hers. The complainant, who was crying, asked Phelps to help her. After Phelps calmed her down and asked her what had happened, she told him she had been raped. Then Phelps took her to the police station.

The complainant stated that she was not free of defendant's control until after sexual intercourse had occurred, because he held her down throughout the ordeal. Also, she related that she did not scream because the defendant told her he would bite through her cheek if she yelled. She stated she did not scream because she was afraid the defendant would hurt her. The complainant testified that the defendant may have told her that his parents were asleep upstairs, but she did not know whether she should believe him. She did not see anyone in the house, including the defendant's parents. In addition, she stated that she was wearing earrings at the time of this incident and that she lost an earring clasp during the struggle. She related, also, that she had marks on her face, bruises on her body, and a scrape on her knee as a result of the present occurrence.

Dennis Phelps testified that the complainant knocked on his basement window at approximately 1:30 a.m. on October 7, 1982. She was crying a lot and would not talk at first. Phelps finally calmed her down, and the first thing the complainant said to him was "he raped me." He asked her if she wanted to go to the police station, and she did not want to do so at first. However, a short while later the witness took Kathleen to the police station. Phelps stated that Kathleen told him that she had been bitten, and Phelps noticed that the left side of her face was quite red.

Police officer Barbara Durnil, who transported the complaining witness to the hospital, observed circular marks in the cheek area on both sides of Kathleen's face. The witness related that when she first viewed the complainant, Kathleen did not appear to be hysterical. Kathleen told her about the incident. Kathleen informed Officer Durnil that family members were in the upstairs area of the Schuning home and that the defendant had told her his family was asleep upstairs.

Barbara Svestka, a nurse who worked in the emergency room of Good Samaritan Hospital in Downers Grove, observed the complainant shortly after the alleged rape occurred. At that time Kathleen, who appeared quiet, told her she had been raped in a basement. The witness noticed circular or oval marks in the form of a mouth on both of the complainant's cheeks and an abrasion on the right knee. There was no bruising of the skin or bleeding in the cheek area.

Dan Cuny, also a police officer, spoke with Kathleen at the hospital after the nurse had examined her. He described Kathleen as visibly shaken and upset when he interviewed her. The officer observed what appeared to be bite marks on Kathleen's cheeks and an abrasion or scratch on her right knee; the skin on the cheeks was not broken or bleeding. In addition, he related that the complainant showed him bruises which she had in the chest area. Kathleen told him what happened in the basement of the Schuning home, and he thought the complainant informed him that the defendant's parents were asleep upstairs during the incident in question.

During the afternoon of October 7, Officers Cuny and Frank Partipilo visited the Schuning home to execute a search warrant and arrest warrant for defendant. After entering the home, the police officers began to go down the steps to the basement. There they announced that they were police officers and told the defendant to come out. They received no response. Officer Partipilo testified that he then found the defendant hiding behind a basement door. In addition, Cuny related that he ...


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