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10/02/87 the People of the State of v. Lawrence D. Olsen

October 2, 1987





514 N.E.2d 233, 161 Ill. App. 3d 945, 112 Ill. Dec. 767

Appeal from the Circuit Court of Lake County; the Hon. Lawrence D. Inglis, Judge, presiding. 1987.IL.1480


JUSTICE NASH delivered the opinion of the court. DUNN and HOPF, JJ. concur.


After trial by jury defendant, Lawrence D. Olsen, was convicted of two counts of aggravated criminal sexual assault, two counts of aggravated battery, and one count of armed violence arising from an incident on August 16, 1985. Concurrent extended terms of imprisonment of 50 years were imposed for each aggravated sexual assault conviction, 10 years for each aggravated battery conviction, and 14 years for the armed violence conviction. Defendant appeals, contending that: (1) the criminal sexual assault statutes (Ill. Rev. Stat. 1985, ch. 38, pars. 12-12 through 12-18) are unconstitutionally overbroad and vague; (2) the trial court erred in allowing a State's witness to demonstrate the martial arts technique for using numchucks; (3) only one of defendant's multiple convictions can stand as they all arise from the same physical act; (4) the trial court erred in imposing extended-term sentences on both the convictions for aggravated battery and for armed violence; and (5) the 50-year extended-term sentence imposed for aggravated criminal sexual assault is excessive.

At trial, police officer Michael Behan testified that at 1:30 a.m. on August 16, 1985, he was called to the scene of a reported battery in Fox Lake, Illinois, where he found Valerie Brey lying on the floor of her apartment, unclothed and covered with blood. Behan and another officer arrested the defendant at his home one block away shortly thereafter, and, in a search of defendant's residence, the police recovered blood-stained blue jeans and underwear, and two pairs of numchucks, one of which had blood on it.

Dr. Frank Micek, the emergency room physician, testified that he treated the victim at the hospital, at which time she was semiconscious. Dr. Micek diagnosed her as having severe head and facial trauma, including a blow-out fracture of the right eye. He concluded that she had been severely beaten with a blunt object and surgery was performed to close the lacerations on the victim's scalp and forehead. A vaginal examination was performed, and mucous, blood and hair samples were taken.

Valerie Brey testified that she was divorced and lived in the apartment with her two sons. On the night in question her boyfriend, Dennis McGarry, came over and she fixed him supper, after which they drank beer and watched television. At about 11:05 p.m. Ruth Bray, the children's baby-sitter, arrived accompanied by the defendant. McGarry drove Ruth home, leaving the defendant alone with Valerie. When he returned 10 to 15 minutes later, the three drank beer and talked for another 45 to 60 minutes. When the defendant said that he wanted to talk to Valerie about Ruth, McGarry and Valerie quarreled, and McGarry left.

Valerie testified that at this point defendant suggested that they have sexual intercourse, to which Valerie responded, "Are you crazy?" Defendant then produced a pair of numchucks and struck eight to nine blows to Valerie's head, hand and shoulders. She testified that she believed defendant would kill her unless she allowed him to do whatever he wanted; she then submitted and defendant dropped the numchucks and had sexual intercourse with her on the floor. When defendant completed the act he asked Valerie to help him find his numchucks. She again asked if he thought she was crazy, whereupon defendant repeatedly kicked the left side of her face. Defendant then left the apartment and Valerie passed out. In testifying, she described the numchucks used by the defendant and identified a pair of numchucks produced in trial as being similar to those she had described.

Ruth Bray, 14 years old, testified that she was defendant's girlfriend and had been with him for approximately two hours on the night in question, during which time the defendant was drinking beer.

Police officer Robert Luerssen identified a pair of numchucks which were recovered from the defendant's bedroom. He testified that on one occasion while on patrol during the summer of 1985, he observed the defendant practicing with a set of numchucks outside his home. Police sergeant Edward Garretson identified a second pair of numchucks recovered from the defendant's basement.

Joe Mendez testified that he performs and teaches the martial arts and possesses a second degree black belt; he stated that he was familiar with the manner in which numchucks are intended to be used. Over defendant's objection, Mendez was permitted to demonstrate the use of numchucks to the jury.

Defendant testified that he had been at Valerie Bray's apartment on the night in question but did not strike her or have sexual intercourse with her. He acknowledged that he owned two pairs of numchucks and stated that although he ...

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