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People v. Morgan

OPINION FILED NOVEMBER 24, 1986.

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

v.

KENNETH LEE MORGAN, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Macon County; the Hon. Rodney A. Scott, Judge, presiding.

PRESIDING JUSTICE MCCULLOUGH DELIVERED THE OPINION OF THE COURT:

On January 30, 1986, the defendant, Kenneth Lee Morgan, was convicted by a jury of criminal sexual assault. (Ill. Rev. Stat. 1985, ch. 38, par. 12-13(a)(1).) An information dated November 6, 1985, charged the defendant with the commission of an act of sexual penetration in that he pushed a table leg into the anus of the victim. At trial, however, the State proved the defendant guilty of criminal sexual assault upon a theory of accountability in that he sat upon the victim so that another individual could insert the table leg into the victim's anus. On March 7, 1986, the defendant was sentenced to the Department of Corrections for a term of four years. We affirm.

The defendant asserts three grounds which warrant reversal upon appeal: first, that the testimony of the complaining witness was neither clear and convincing, nor substantially corroborated so as to prove him guilty beyond a reasonable doubt; second, that the State failed to establish that the defendant possessed the requisite intent to be convicted for criminal sexual assault upon a theory of accountability; and, third, that the State improperly withheld evidence of a medical examination of the victim which was referred to at the sentencing hearing by the victim's mother.

At trial the complainant, the victim, testified that he was 15 years old and resided in the same apartment building as the defendant. The victim stated that early in November he had run away from home and had asked Chris Eubanks, the defendant's roommate, if he might stay at their apartment. The victim spent the night in the apartment with the defendant and Eubanks. The next morning, at approximately 8 a.m., Calvin Fakes and Keefer Jones came to the apartment.

The victim stated that Fakes, Jones, Eubanks, and the defendant began acting strange. He stated that they were talking about a theft in which Fakes and Jones had been involved. Shortly thereafter, the victim and the defendant became involved in a wrestling struggle during which the defendant told the victim "he was going to stick a stick down his rear end." Both Eubanks and Fakes later became involved in the wrestling match. The defendant then threw the victim on his stomach and sat on his back, pinning the victim to the floor.

While the victim was sitting on his back, someone applied vaseline to the victim's anal area. The victim stated that he then saw Keefer Jones get a stick and put it in his anus. The victim testified that the stick did go inside his rectal area. The victim further testified that he continued to tell the defendant and Jones to get off of him during this entire episode.

The victim stated that he spoke with the police on the date the incident occurred. On cross-examination the victim admitted that he had told Officer Rutherford that there was no penetration of his rectum. The victim, however, was unclear as to the exact meaning of the term "penetration," asking defense counsel, "What do you mean by penetration?"

Next, the State called Calvin Fakes, who stated that he was a friend of the defendant and present at the time of the incident. Fakes corroborated the fact that the defendant and the victim were wrestling on the floor. He further stated that Jones later became involved in the struggle during which Jones pulled down the victim's pants and "started to stick the table or couch leg in his butt." Fakes testified that the defendant was sitting on the victim during the incident but that he had his back to Jones. He further indicated that the victim did not make any noise during the incident.

The State's final witness, Officer Patrick McElroy, testified that he had interviewed the defendant on November 8, 1985, regarding a complaint filed by the victim. McElroy stated that the defendant acknowledged the wrestling match but told him that he was not responsible for sticking anything up the victim's rectum. The defendant told McElroy that Jones had pulled a leg off a love seat, applied vaseline, and stuck it up the victim's anus. McElroy related that initially defendant denied that the victim had struggled or screamed, but later admitted to a struggle when McElroy told him that Fakes, Jones, and the victim had stated that a struggle had in fact ensued.

The defense called Officer Rutherford, who testified that he interviewed the victim regarding the incident. Rutherford stated that the victim told him that there had been no actual penetration of his rectum and that the couch leg had come close to going into his butt but never did. Rutherford, however, further stated that the victim appeared shy and embarrassed during the interview. Rutherford indicated that the victim hesitated before answering each question and did not look him in the eye. Rutherford stated that he got the impression that the victim did not wish to discuss this matter with another man.

The defendant, Kenny Morgan, testified that he did sit on the victim's back but that he did not see Jones stick anything in the victim's anal area. The defendant admitted that he was no more than 6 inches to 1 foot away from Jones when the incident occurred, but that because of the particular wrestling hold he was utilizing, he never had any idea what happened behind him. He stated that the victim was struggling and screaming but that he never turned around to face Jones to see what was going on.

The State, in rebuttal, called the victim, who testified that the defendant was sitting on his back and the defendant's hands were in front of him. The victim further testified that the entire episode lasted approximately five to six minutes.

Prior to imposing sentence, the court allowed the victim's mother to testify as evidence of aggravating factors, regarding the effects of this incident upon her son. She indicated that her son had been examined by an emergency-room physician after the incident. She testified she had taken her son to the hospital after the police suggested she do so. Subsequent to this testimony, the defense counsel filed a supplemental motion for a new trial alleging discovery violations with respect to the medical examination of the victim. The court denied this motion. The court then cited several mitigating factors and imposed a minimum sentence of four years.

Defendant's initial contention upon appeal is that the testimony of the complaining witness was neither clear and convincing nor substantially corroborated so as to prove the defendant guilty beyond a reasonable doubt. The defendant hinges this argument upon the fact that there was some discrepancy in the victim's ...


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