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01/13/89 the People of the State of v. Santiago Sandoval

January 13, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

SANTIAGO SANDOVAL, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

533 N.E.2d 980, 178 Ill. App. 3d 669, 127 Ill. Dec. 898 1989.IL.25

Appeal from the Circuit Court of Lake County; the Hon. Jack Hoogasian, Judge, presiding.

APPELLATE Judges:

JUSTICE NASH delivered the opinion of the court. WOODWARD, J., concurs. JUSTICE REINHARD, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH

After trial by jury defendant, Santiago Sandoval, was found guilty of two counts of criminal sexual assault (penis in anus, penis in mouth) (Ill. Rev. Stat. 1985, ch. 38, par. 12-13(a)(1)) and battery (Ill. Rev. Stat. 1985, ch. 38, par. 12-3) as a lesser-included offense; he was found not guilty by the jury of aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12-14(a)(2)) and unlawful restraint (Ill. Rev. Stat. 1985, ch. 38, par. 10-3(a)). Defendant was sentenced to 15 years' imprisonment and he appeals, contending: (1) he was not proved guilty beyond a reasonable doubt; (2) erroneous and prejudicial evidentiary rulings in trial require reversal; (3) the verdicts of the jury were logically and legally inconsistent; and (4) the sentence was excessive as defendant had no prior criminal record except for minor traffic offenses.

The evidence at trial disclosed that the complainant and defendant met during the summer of 1986 and lived together in a Waukegan apartment for about three months, together with complainant's two-year-old son from a former marriage. The complainant testified defendant would become violent if she refused to have sexual relations with him and that on several occasions he inflicted physical abuse on her. She and her child eventually moved out in October 1986.

Subsequently, she started to see defendant again and for two months everything was fine. On New Year's Eve, the couple went out for the evening, first to see his sister-in-law in a Waukegan hospital, who had a baby; defendant's family was there too. They then went to a friend's home in Waukegan to a party and left there at 10:30 p.m. to go to Cagney's bar in Kenosha. The complainant testified that defendant learned at Cagney's that she had recently been out with a man named Tony, but had lied to defendant about it. He accused her of sleeping with Tony, which she denied. Defendant calmed down after a while, and they shared a bottle of champagne before leaving the bar to drive to defendant's apartment.

The complainant further testified that in his apartment they sat on the couch together and defendant again accused her of having sexual relations with the other man. As he became angry, she started to leave and he took her arm and told her to sit down on the couch. Complainant stated she was scared as defendant became increasingly angry and emotional. He said he was going to have sex with her one last time and pushed her to the floor, getting on top of her. He then pushed her into the bedroom and, as she suspected defendant sought anal sex, the complainant begged him not to do it that way because she had told him before that it hurt and she didn't like it that way. She testified that she had had anal sex with defendant on two prior occasions and, in response to a question by the assistant State's Attorney, stated she had never had anal sex with any other person.

According to the complainant, a struggle followed on the bed in which defendant hit her repeatedly on the back of her head, causing a bruise on her ear and a lump on her head. He penetrated her anus with his penis and thereafter told her to perform oral sex upon him. She refused, but acquiesced when he reached into a closet and she believed defendant might have a gun. This was followed by another sequence of anal and then oral sex. The next day she could not sit.

When the complainant noticed defendant had nothing in his hand, she got up from the bed upon which they were lying and ran out the apartment door to the floor above where she pounded on an apartment door. She told the man who answered that she had been raped and asked to use the telephone; complainant called the police and said she had been raped.

In his testimony at trial, defendant's version of the events that night was substantially different than was the complainant's. He stated they had had anal sex a dozen times prior to the incident in question and that she had never expressed displeasure and sometimes initiated it. On New Year's Eve, after they arrived at his apartment, the complainant started apologizing for seeing another man. He told her that he wanted nothing more to do with her, but she became aggressive sexually and he slapped her with the back of his hand to keep her away. Eventually, they left the couch and went into the bedroom and disrobed and the complainant initiated sexual activity, including anal and oral sex. Defendant testified he was not receiving any satisfaction and he told her their relationship was over and he couldn't trust her. When defendant directed her to dress and leave his apartment, she threatened him and stormed out. Defendant denied threatening complainant in any way and stated he had never owned a gun or had one in his apartment.

In addition to the testimony of these parties at trial, evidence was offered to impeach both defendant and complainant, character evidence relating to defendant was admitted, as was some physical evidence.

We note initially that defendant has waived consideration of the reasonable doubt and inconsistent verdict issues for failure to comply with Supreme Court Rule 341(e)(7) (107 Ill. 2d R. 341(e)(7)). That rule requires, inter alia, that argument in an appellant's brief shall contain his contentions and the reasons therefor, with citation of the authorities relied on. It provides further that points not argued are waived. (107 Ill. 2d R. 341(e)(7).) While defendant does argue facts he considers relate to the reasonable doubt question, he offers no supporting authority. Defendant's argument directed to the inconsistent verdict issue consists of the statement that, "If defendant was not guilty of Unlawful Restraint, he logically could not be guilty of Criminal Sexual Assault." He offers no citation of authority in support of this argument. We ...


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