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10/07/87 the People of the State of v. Bobby James Dupree

October 7, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

BOBBY JAMES DUPREE, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

514 N.E.2d 583, 161 Ill. App. 3d 951, 112 Ill. Dec. 920

Appeal from the Circuit Court of Winnebago County; the Hon. John E. Sype, Judge, presiding. 1987.IL.1513

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN

Defendant, Bobby James DuPree, was convicted of aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12-14(a)(1)), and aggravated battery (Ill. Rev. Stat. 1985, ch. 38, par. 12-4(b)(1)), following a jury trial in Winnebago County. On appeal, defendant raises four issues for review: (1) whether he was proved guilty beyond a reasonable doubt; (2) whether the warrantless search of his automobile was unconstitutional; (3) whether the trial court erred in refusing to delete a portion of the jury instruction defining sexual penetration; and (4) whether the criminal sexual assault law is unconstitutional. We affirm.

On July 23, 1985, a two-count information was filed charging defendant with aggravated criminal sexual assault and aggravated battery. The aggravated criminal sexual assault count alleged that on July 7, 1985, the defendant committed an act of sexual penetration by the use of force upon Geraldine Hawthorne with the use of a dangerous weapon, namely, a knife. The aggravated battery count alleged defendant on the same day committed a battery upon and caused bodily harm to Geraldine Hawthorne while using a deadly weapon, namely, a brick.

Prior to trial, defendant filed, inter alia, a motion to suppress certain physical evidence obtained during a warrantless search of defendant's automobile. The court denied the motion.

At trial, the complainant, Geraldine Hawthorne, testified that on July 6, 1985, she and her friend, Marita Warren, arrived at the J & B Tap (Tap) in Rockford at approximately 11:30 p.m. and remained there until the Tap closed at 2 a.m. the next day. The complainant consumed six drinks of brandy and water while at the Tap. When the Tap closed, complainant and Warren proceeded next door to a restaurant. A black male, identified by complainant as defendant, sat down at their table and began a conversation with Warren. Complainant had not seen defendant before. Sometime later, complainant walked out of the restaurant to get some fresh air. Defendant followed her. Once outside, complainant prepared to smoke a cigarette. Because she did not have any matches, complainant asked defendant for a match for her cigarette. Defendant responded he had one in his car. Complainant followed defendant to the car and entered the passenger side at his invitation. Hawthorne carried a purse with her when she entered defendant's car. The purse contained her keys, identification, and makeup. She identified a lipstick and eyebrow pencil as belonging to her. As she waited for a light, defendant started the car and drove off. After telling her not to say anything, and while still driving, defendant reached under the seat and produced a knife. Holding the knife to complainant's neck, defendant told her that if she tried to scream or escape from the car he would kill her.

The defendant drove to a secluded area, stopped the car, and ordered complainant to lie down on the car seat. Defendant then pulled down his trousers and removed complainant's slacks and pantyhose. He then inserted his penis into complainant's vagina for approximately five minutes. Complainant was not sure if defendant ejaculated. At some point, defendant had placed the knife underneath the driver's seat, within arm's reach of complainant. Using her left hand, complainant reached for the knife and slowly removed it from its steel-lined case. She then feigned hugging the assailant, transferred the knife to her right hand, and held it to his back. Complainant told defendant to get off her and exit the car. Defendant did so and pulled on his pants. Complainant then exited the car. As she was attempting to retrieve her pants from the car, defendant struck her in the forehead with a brick. Complainant, with the knife in hand, then ran off pursued by defendant. She threw the knife under a fence surrounding a house and put her pants on. The complainant tapped on a window in an effort to attract attention inside the house. This failing, she ran home. Shortly thereafter, she telephoned the police.

Officer Mark Washburn testified he arrived at complainant's house at 4:15 a.m. on July 7. He observed complainant in a confused state, with a wound to the forehead. Washburn also noticed a strong odor of alcohol on Hawthorne's breath and that her eyes were glassy. Complainant told Washburn she had been sexually assaulted. She added that although she was able to get the knife away from her assailant during the attack, the assailant regained the knife and stabbed her in the head. Complainant then insisted they return to the scene and search for the knife. After an unsuccessful 30-minute search, Washburn accompanied complainant to a hospital for treatment.

Detective DeLawrence Garrett testified that on July 8, complainant, without reservation, identified defendant from a photographic lineup. Thereafter, Garrett obtained a warrant for defendant's arrest and proceeded to the defendant's girlfriend's residence in Rockford in order to execute the warrant. When he arrived at the residence, Garrett observed an automobile in front of the residence which he later identified as defendant's. After sitting outside the residence for 15 to 20 minutes, Garrett called for assistance, then exited his car and talked to Mrs. Clay. He then proceeded into the residence and found defendant in one of the bedrooms. Garrett brought defendant outside and arrested him. The defendant's automobile was towed to the police station and was later searched, without a warrant, by Garrett and Officer John Germano. A tube of lipstick, an eyebrow pencil and several combs were seized from the glove compartment of the car. On cross-examination, Garrett agreed defendant provided him with the names of persons who could account for his whereabouts at the time complainant was allegedly assaulted.

For the defense, emergency room nurse Leora Ames testified that in the early morning hours of July 7, she assisted a doctor at Rockford Memorial Hospital in administering to complainant tests contained in a standard sexual assault kit. Included were hair combings, vaginal and oral swabs and slides, and blood samples. The blood test was taken at approximately 9 a.m. During her stay at the hospital, complainant told Ames she had been to a party with a girlfriend and had decided to go outside and get some fresh air. A gentleman friend was talking with her girlfriend when she left. The complainant went outside, and a man was standing there; he offered to light her cigarette, but his lighter did not work, so he suggested that she get in his car to use the lighter. She did, and he drove off. The man parked the car and told her to take her clothes off. She declined, and he then produced a knife, held it to her throat and proceeded to sexually assault her. While the sexual assault was in progress, the man put the knife under the front seat; the complainant picked up the knife and realized she could have stabbed him but did not. He then realized she had the knife, and he picked up a brick or "something" that was under the seat and hit complainant in the forehead. She then exited the car and retrieved her jeans, which the assailant had thrown out of the car. She then ran to a nearby house and pounded on the door. When no one answered, complainant ran home and telephoned the police. Nurse Ames further testified complainant stated she had been sexually assaulted both orally and vaginally.

Mrs. Emma Clay, the mother of defendant's girlfriend, Angela Clay, testified that on July 7, at approximately 2 a.m., she was in her kitchen preparing and cleaning ribs for Sunday dinner. Mrs. Clay stated that Angela and defendant arrived home at approximately 2:30 a.m. They were accompanied by Angela's sister, Barbara Clay. Angela and defendant went into the living room to watch television, and they were still there when Mrs. Clay went to bed at approximately 3 a.m. Robert Graham, Mrs. Clay's brother, testified he arrived at the Clay house on July 7, at approximately 1 a.m. At approximately 2:30 a.m., while watching television with his nephew in the basement, Graham heard the defendant enter the house accompanied by Angela and Barbara Clay. Defendant visited with Graham for 5 or 10 minutes in the basement and then went upstairs.

Angela Clay testified that, between 10:15 p.m. and 1 a.m. on the night in question, she and defendant were in and around defendant's car located in a parking lot across the street from the Tap. At approximately 1 a.m. they went to a liquor store, purchased a quart of beer and a small bottle of wine and returned to the same parking spot. As they sat in the car, Barbara Clay came out of the Tap and asked them for a ride. When the Tap closed, Angela and defendant took Barbara, Curtis Box and Debbie Buriss to Box's Barbecue restaurant. The group then dropped off Box ...


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