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People v. Salas

OPINION FILED NOVEMBER 8, 1985.

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

v.

FELIPE SALAS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lake County; the Hon. Fred A. Geiger, Judge, presiding.

JUSTICE SCHNAKE DELIVERED THE OPINION OF THE COURT:

Defendant, Felipe Salas, was charged in a six-count information with committing various sexual offenses against A.M., the 11-year-old daughter on one of his girlfriends. The State elected to proceed first on count V which charged defendant with committing aggravated indecent liberties with a child. (Ill. Rev. Stat. 1983, ch. 38, par. 11-4.1(a)) on March 22, 1984. That charge proceeded to a bench trial at which defendant was found guilty of the lesser included offense of indecent liberties with a child. (Ill. Rev. Stat. 1983, ch. 38, par. 11-4(a)(1).) The court entered judgment on the finding. The State then elected to try counts IV, VI, and III, which involved an incident that allegedly occurred on July 27, 1983. Count IV charged rape (Ill. Rev. Stat. 1983, ch. 38, par. 11-1); count VI charged armed violence (Ill. Rev. Stat. 1983, ch. 38, par. 33A-2) based on the predicate felony of indecent liberties with a child; and count III, as amended, charged indecent liberties with a child (Ill. Rev. Stat. 1981, ch. 38, par. 11-4(a)(1)). These charges proceeded to a jury trial at which defendant was found guilty as charged. Judgment was entered on the verdicts. The court thereafter vacated the judgment on count III. The State did not proceed on count I or II. Defendant received three concurrent sentences of imprisonment: 60 years each on the rape and armed violence charges tried by the jury, and 15 years on the charge of indecent liberties tried by the court. Defendant appeals, challenging only the judgments on the rape and armed violence charges. No challenge is made to his conviction of indecent liberties, or his 15-year sentence of imprisonment therefor.

With respect to the judgments on the rape and armed violence charges, defendant has raised numerous contentions of error. We do not find it necessary to address each of those contentions, however, because we conclude that we must reverse the judgments and remand the charges for a new trial based on the erroneous admission into evidence of the details of a complaint A.M. made to the police.

Because defendant has not challenged his conviction of indecent liberties resulting from the bench trial or his 15-year sentence of imprisonment therefor, the facts of that case will not be set out in detail. Basically, the evidence showed that on March 22, 1984, A.M. had sexual intercourse with defendant after he offered to pay her $10.

The evidence presented at the jury trial can be briefly stated. The State called two witnesses: A.M., and investigator Patrick Pender of the Mundelein police department. The defense presented no evidence.

A.M. testified that on July 27, 1983, she was living in Vernon Hills in the basement of a townhouse, with her mother, her 18-year-old brother, Gill, and defendant's 2 1/2-year-old son, Felipe, Jr. Defendant lived there once in a while.

In order to get to the basement apartment, one had to go through the kitchen on the first floor and then down a stairway. When A.M. was asked about the sleeping arrangements in the apartment, she testified that she and Gill slept in the first room, and that most of the time her mother slept with her. A.M. said that the back room was defendant's room, and that he and Felipe, Jr., slept there.

On the night involved here she watched television and then went to sleep. When she went to sleep, defendant and Felipe, Jr., were in the apartment. Her mother had gone to work, and Gill was at a friend's house.

According to A.M., sometime after she fell asleep, defendant woke her up by shaking her. She was wearing pajamas, and he was wearing shorts. He said, "Let's have sex." She said no. Defendant then went to the kitchen and got a knife. He put it up to her neck and said, "You better have sex with me, or I am going to kill you." She was scared so she took off her pajamas. He took off his shorts. He then shoved her onto his bed. Then he got some rope and tied each of her hands separately to the posts of the bed. He then took off his socks and used them to tie each of her feet separately to the bed-posts. A.M. testified that defendant then had sexual intercourse with her for about two or three minutes. She said he put his penis about two inches into her vagina, and that it hurt a little.

A.M. stated that defendant stopped having sex with her when they heard Gill enter the townhouse upstairs. Defendant got up and untied her hands and feet. He told her, "If you tell anybody, I am going to kill you."

A.M. identified a photograph of a knife as exactly like the one defendant used to threaten her. There was a set of knives like that at her house. She was not sure whether the knife shown in the photograph was the same one that defendant used.

Finally, A.M. testified that on March 24, 1984, she told inspectors Pender and Kalodimos "what had happened on July 27th, 1983."

On cross-examination, A.M. testified that while she was being raped, she did not cry out for help although she probably cried a little. She said that Elicia Hernandez, Marguerita Batista, and someone else called Lupe lived upstairs. A.M. said she could not remember whether they were home that night. She testified that throughout the entire incident the knife remained in defendant's hand.

A.M. testified that from the time she and defendant first heard Gill upstairs until the time he entered the basement apartment a minute or two elapsed. When they first heard Gill, her arms and legs were tied to the bed. Her arms were tied with a bow knot. She did not know with what kind of knot her ...


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