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03/03/94 PEOPLE STATE ILLINOIS v. GEROME NORFLEET

March 3, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
GEROME NORFLEET, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE JOHN J. MORAN, JUDGE PRESIDING.

As Corrected October 19, 1994.

Hoffman, Cahill, Johnson

The opinion of the court was delivered by: Hoffman

JUSTICE HOFFMAN delivered the opinion of the court:

A jury found defendant, Gerome Norfleet, guilty of four counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12-14), following an incident involving complainant, D.L. The trial court sentenced him to 4 consecutive prison terms of 25 years each. He appeals from his conviction and sentence, contending that (1) he was deprived of a fair trial because the jury was not given an issue instruction for the affirmative defense of consent and because the trial court tendered non-IPI verdict forms and a non-IPI concluding instruction which misallocated the burden of proof and confused and mislead the jury; (2) prosecutorial closing remarks constituted reversible error; (3) the trial court erred in failing to properly consider the jury's request to read portions of a trial transcript during deliberations; (4) the State failed to prove the requisite bodily injury to D.L. to properly elevate this to an aggravated offense; (5) the verdict forms indicate uncertainty as to whether the jury actually found him guilty of two separate acts of anal penetration; (6) the case of People v. Segara (1988), 126 Ill. 2d 70, 533 N.E.2d 802, 127 Ill. Dec. 720, was not intended to apply to the revised enactment of section 5-8-4(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005-8-4(a)), which mandates consecutive sentences for each act of sexual assault; and (7) his 100-year sentence contravenes the Illinois Constitution and was an abuse of discretion.

The indictment charged defendant with, inter alia, four counts of aggravated sexual assault under section 12-14 of the Criminal Code of 1961 ("Code") (Ill. Rev. Stat. 1989, ch. 38, par. 12-14), based upon the following individual acts against D.L.: (1) vaginal penetration with the use of a deadly weapon; (2) oral penetration with the use of a deadly weapon; (3) anal penetration using a deadly weapon; and (4) anal penetration resulting in bodily harm.

At trial, D.L. testified as follows. About 10:30 on the night of May 19, 1990, she was walking home from a restaurant when she encountered defendant, who initially walked past her but then suddenly turned and held a gun to her back. Defendant threatened to kill D.L. if she screamed and then told her to turn around and keep walking. He lead her down several alleys and eventually pushed her through a gangway and into an unlit basement. After ordering D.L. to remove her clothes, defendant forced her to perform fellatio on him while he held the gun to her chest. He then engaged in anal intercourse with her while she bent over the edge of a table, after which he forced her to perform another act of fellatio. Defendant then ordered D.L. to turn around and he again anally assaulted her, after which he forced her to lay down on the basement floor and perform a third act of fellatio. After then engaging in vaginal intercourse with her, defendant stood up, warning her not to scream or he would kill her. D.L. was crying and very upset. Defendant subsequently retrieved D.L.'s clothing, emptied the contents of her pockets and walked outside, taking her identification.

D.L. testified that she then exited the building and went to the home of a friend who lived in the area. After a while, the friend and his girl friend helped D.L. walk to a police car parked nearby. D.L. informed the police about the occurrence and was subsequently taken to the hospital. D.L. testified that she sustained torn anal tissue and bleeding as a result of the occurrence.

D.L. later accompanied the police to the area where the incident occurred and was present when they located defendant's wallet on the basement floor. In July 1990, D.L. identified defendant as her assailant in a lineup.

Police officer Carl Silvestrini testified that at approximately 11:20 or 11:30 that night, he was parked in his police vehicle when D.L. approached with two other individuals who were holding her as she walked. D.L. was crying and her clothing was disheveled. Officer Raymond Dexter testified that he responded to a call subsequently made by Silvestrini, and upon arriving at the scene, saw D.L. lying down in the back of the police vehicle. Dexter testified that D.L. was crying continuously and appeared to be in a lot of pain, and as he subsequently took her to the hospital, she was bending forward and unable to walk properly.

Investigating officer Steven Stratton was at the hospital after the occurrence and testified that D.L. was crying, seemed to be in pain, and had a hard time sitting straight. He further indicated that later that night, D.L. directed police to the building where the incident occurred. On the basement floor, they recovered a man's brown wallet containing a picture identification, which D.L. told them depicted the man who attacked her.

Doctor Radhika Kakarala examined D.L. on the night of the occurrence and found that she had external hemorrhoids and rectal tenderness. This diagnosis was confirmed by a gynecologist. Kakarala testified that D.L. related that she had been sexually assaulted at gunpoint orally, vaginally, and rectally, and that she had experienced some rectal bleeding. Kakarala indicated, however, that her own examination revealed no bleeding or damage apart from the hemorrhoids. On cross-examination Kakarala stated that, although she was unaware of any relationship between anal intercourse and hemorrhoids, such intercourse could cause preexisting hemorrhoids to become tender or bleed. Kakarala did not observe any scratches, scars, or bruises anywhere else on D.L.'s body.

Defendant testified that on the night of the occurrence, he left a friend's house at approximately 10 p.m. and proceeded to a certain area to find a "date." He encountered D.L., and the two conversed about engaging in sex for money. Defendant testified that he had previously consumed a couple of beers and also believed that D.L. had been drinking and appeared "high." Defendant denied having a gun at any point during the night.

Defendant testified that he and D.L. agreed on a price of $20 for oral, anal, and vaginal sex. Unable to afford a hotel, they searched for a private place to have their "date" and decided on the basement of an abandoned building. Defendant denied that he ever threatened D.L. or forced her into going anywhere.

Defendant testified that after he gave D.L. the $20, she disrobed and they engaged in oral, vaginal and anal sex. At some point defendant, who did not remove his pants, noticed D.L. going through his pocket for his wallet and inquired what she was doing. He subsequently noticed that some money he kept in his pocket outside of his wallet was missing, and confronted D.L. about it. Defendant testified that he succeeded in recovering this money from D.L., along with the $20 he had given her. Later that night when he was at home, he noticed that his wallet was missing. Defendant denied ever forcing D.L. to have sex with him and stated that she was always free to leave. Defendant indicated that he had never seen D.L. before, and that it was she who suggested that they engage in intercourse for the $20 price.

In rebuttal, a fifth officer, Dorothy Price, testified that she was working with Dexter that night, and she stood next to D.L. on the street for about 10 minutes before she was taken to the hospital. Price did not believe D.L. to have been under the influence of alcohol.

Following closing arguments, the jury found defendant guilty of all four counts of aggravated sexual assault. The court sentenced him to four terms of 25 years' imprisonment, to be served consecutively under section 5-8-4(a) of the Unified Code of Corrections. The instant appeal followed.

Defendant's initial arguments on appeal concern the jury instructions in this case. He first maintains that he was effectively denied his constitutional right to present his theory of defense to the jury (see People v. Manion (1977), 67 Ill. 2d 564, 367 N.E.2d 1313, 10 Ill. Dec. 547), because the court failed to give Illinois Pattern Instruction number 11.41, which states that consent is a defense to a sexual assault charge. Illinois Pattern Instructions ("IPI"), Criminal, No. 11.41, (2d ed. 1989).

All parties are entitled to have the jury instructed regarding their theory of the case where the evidence warrants such instruction. ( People v. Lyda (1989), 190 Ill. App. 3d 540, 544, 546 N.E.2d 29, 137 Ill. Dec. 405.) The record here indicates, however, that defendant did not tender this instruction at trial and that he failed to specifically object to its omission both at trial and in his post-trial motion; therefore, he has waived the issue for review. ( People v. Shields (1991), 143 Ill. 2d 435, 446, 575 N.E.2d 538, 159 Ill. Dec. 40; People v. Huckstead (1982), 91 Ill. 2d 536, 440 N.E.2d 1248, 65 Ill. Dec. 232.) Unless a party makes his desired jury instructions clearly known to the trial court, he may not assert the court's failure to give them as a basis for reversal. 134 Ill. 2d R. 366(b)(2)(i); Huckstead, 91 Ill. 2d at 543.

We note that, in a motion to supplement the record with allegedly missing portions of the instructions conference, defense counsel argued that she had orally tendered the consent instruction and that the trial court had refused to give it, but that the court reporter had failed to record the colloquy. Following a hearing on the motion to supplement, the trial court rejected this argument and found that the instruction had never been tendered. We similarly conclude that, apart from defense counsel's own assertions, there is no support for this position in the record. Accordingly, we will not disturb the trial court's finding.

Defendant urges that we address this issue as plain error because the evidence in this case was closely balanced. The plain error doctrine applies only where necessary to correct "serious inJustices" ( People v. Young (1989), 128 Ill. 2d 1, 46, 538 N.E.2d 453, 131 Ill. Dec. 78), or more specifically, "where the question of guilt is close and the evidence in question might have significantly affected the outcome of the case", or where the error is so substantial that it impacts on the fairness and impartiality of the trial. ( People v. Sanders (1983), 99 Ill. 2d 262, 273, 457 N.E.2d 1241, 75 Ill. Dec. 682; People v. Roberts (1979), 75 Ill. 2d 1, 14, 387 N.E.2d 331, 25 Ill. Dec. 675.) This is not such a case.

In addition to being appropriately instructed on the presumption of innocence and the State's burden of proof, the jury in this case received the following instructions:

"To sustain the charge of aggravated criminal sexual assault, the State must prove the ...


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