APPELLATE COURT OF ILLINOIS, THIRD DISTRICT
541 N.E.2d 797, 185 Ill. App. 3d 597, 133 Ill. Dec. 586 1989.IL.1078
Appeal from the Circuit Court of La Salle County; the Hon. Fred P. Wagner, Judge, presiding.
JUSTICE SCOTT delivered the opinion of the court. WOMBACHER, P.J., and BARRY, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCOTT
Defendant was charged by indictment with residential burglary and attempted criminal sexual assault. Following a jury trial, he was convicted and sentenced to concurrent terms of imprisonment of four years. No questions are raised on the indictment.
The charges against defendant essentially alleged that, on June 14, 1987, he unlawfully entered the home of Lori King (Lori) with the intent to commit the offense of criminal sexual assault, and that once inside he performed a substantial step toward committing the offense in that he entered Lori's bedroom and by the use of force fondled her and unzipped his pants.
It is undisputed that defendant was in Lori's home without authority at the time in question. At issue, however, was whether defendant had the requisite intent to commit the charged offenses. Lori's testimony, her pretrial statement to the police, and defendant's testimony provided the bulk of the evidence presented at trial.
Lori testified that on June 13, 1987, she went to bed at approximately 11:30 p.m. wearing a T-shirt and underwear. She had one daughter and both slept in separate upstairs bedrooms. Lori's husband, Don King, was not at home because they had separated a few days earlier. Lori stated she was awakened in the early morning when a man put his hand over her mouth, while holding her down onto her bed. The man told her, if she screamed or tried to look at him, he was going to hurt her. Lori stopped struggling and told the intruder not to hurt her. The man then told Lori he was drunk and needed someone to comfort him and make love with, because he and his wife had separated. The man fondled her breasts and vagina, and put his hand back over her mouth when she started to struggle. After Lori told the man that she had been raped before, he stopped fondling her and they talked for about 20 minutes.
Lori stated the man eventually began to fondle her again and he unzipped his pants. A short time thereafter, Lori's daughter walked into the room. The intruder identified the young girl by name and Lori asked how the man knew her daughter's name. He replied that he always saw them walking. The daughter then got into bed with them. Lori also stated that the man told her he knew her husband would not be coming home because they were separated. Apparently, some more conversation then took place, and the man promised the young girl that he would buy her a swing set and a swimming pool.
Lori further stated the man was talking to her as if he wanted her for a girl friend and told her he was unable to just walk up to her and start kissing her. He stated he knew what he was doing was not the way to have her and apologized. He then said he was going to trust her and let her see him and it was then that Lori saw the man was the defendant. At this point, defendant had been in her room for about one hour.
Defendant said that he left Lori's house at around 5:10 a.m. He asked Lori if they could keep the incident between the two of them. Defendant called Lori a few times over the next several days and apologized.
After the defense rested, the State called Officer Eugene Lowery (Lowery) as a rebuttal witness. Lowery testified that he interviewed defendant, in June 1987, about the incident in question. After defendant waived his rights, he made a 17-minute tape-recorded statement. After Lowery identified the tape, the State moved to have it played for the jury as an admission. Defendant, however, objected to its use as substantive evidence because it was improper rebuttal. The court agreed with defense counsel and held that the tape could be used solely for impeachment purposes and then only if a proper foundation had been laid for each statement by way of confronting defendant with the statement. The State then questioned Lowery, over defendant's continuing objections, about defendant's pretrial statement.
At closing arguments, defense counsel objected to certain comments by the prosecutor, moved for a mistrial during the arguments and included a detailed post-trial motion concerning the prosecutor's comments. The jury was instructed on the charged crimes -- attempt and residential burglary -- as well as the lesser ...