APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
547 N.E.2d 608, 191 Ill. App. 3d 269, 138 Ill. Dec. 441 1989.IL.1760
Appeal from the Circuit Court of Vermilion County; the Hon. John P. O'Rourke, Judge, presiding.
PRESIDING JUSTICE McCULLOUGH delivered the opinion of the court. SPITZ and GREEN, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH
After a jury trial, defendant was convicted of criminal sexual assault. (Ill. Rev. Stat. 1985, ch. 38, par. 12-13(a)(1).) Subsequently, the trial court sentenced him to seven years' imprisonment. Defendant appeals, arguing: (1) the trial court erred in refusing to instruct the jury on criminal sexual abuse (Ill. Rev. Stat. 1985, ch. 38, par. 12-15(b)(1)); (2) the trial court erred in failing to appoint different counsel to represent defendant during the post-trial motion proceeding; and (3) failure to include a mental state for criminal sexual assault in the jury instructions constituted reversible error.
Complainant testified that on July 25, 1987, she was 15 years old and living in Danville with her father, brother, and grandmother. She met defendant about a month before the incident. She had been to his house on two previous occasions. She had spent the night at defendant's house the day before the assault, returning to her home at 6:15 a.m. She and defendant had planned to go to a movie on July 25, 1987, but complainant overslept. At about 11:55 p.m., complainant, who was near her home, saw defendant's mother in a vehicle. Defendant's mother stopped and asked if complainant were coming over to her home. She told complainant defendant was in the vehicle behind her vehicle. Complainant stated she talked to defendant and went with defendant and his passengers to defendant's home. Complainant and defendant sat in the living room for 5 to 10 minutes and talked. Defendant then asked if she would go upstairs to his bedroom and talk. She went up to his room, where she and defendant kissed. She asked defendant to get her a drink of water, which he did. After defendant returned, he placed a dresser in front of the door. Complainant did not say anything about the dresser, and she and defendant continued kissing. She moved away from defendant and stood up. Defendant asked what time she had to be home. After she responded, he indicated they would engage in intercourse before she left. After complainant refused, defendant started removing her clothing. A struggle ensued, during which she hit and kicked defendant. Defendant held her hands together and removed her pants. When she refused to turn over, he grabbed her neck, and turned her over. She could not breathe and told him to stop. Defendant removed her panties and had vaginal intercourse with her. Complainant was screaming. Defendant's brother came upstairs and partially pushed the dresser away from the door. Defendant put his hand over complainant's nose and mouth and told his brother to shut the door.
After defendant left the bedroom, complainant tried to find her clothing but only found her jeans, shoes, and top. Eric, defendant's brother, came up to the room again but complainant was screaming so he left. Complainant asked defendant to take her home when she went downstairs. Defendant pushed her away from the door. He told her she could not leave until she stopped crying. Eventually, defendant dropped her off near her aunt's house. She told her brother, a cousin, and her father what had happened. Complainant stated her vaginal area was swollen; however, she did not notice any bruises on her neck.
A nurse at the hospital testified she did not observe any physical trauma to complainant's neck. Detective Larry Rollins stated he noticed redness on complainant's neck., DEFENDANT
Defendant stated that he was 19 years old on July 25 and 26, 1987. He and complainant had never planned to go to the movies. She usually came to his house to watch television. She had been at his house three times prior to the incident. On July 25, 1987, at 11:55 p.m., he drove to complainant's house and asked her to come to his house. No one was in the car with him, and his mother was not nearby. Defendant stated he and complainant talked in the living room for 15 to 20 minutes. He then asked her to come upstairs and engage in sexual intercourse. She agreed. While in the bedroom, they began kissing. Defendant asked complainant to remove her clothing. She agreed to do so and asked defendant to get her a drink of water. When he returned, she was undressed. He moved the dresser in front of the door to insure privacy. They engaged in intercourse.
Defendant further stated his brother came in and called complainant some names. Defendant told his brother to leave them alone and followed him out of the room. Defendant stated he did not choke complainant and she did not kick him. At approximately 1 a.m., he took her home. Defendant admitted he left Danville two days after the incident. He returned to Minnesota, where he was on probation for assault and theft. A warrant had issued ...