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March 31, 1994



Murray, Gordon, Cousins, Jr.

The opinion of the court was delivered by: Murray

PRESIDING JUSTICE MURRAY delivered the opinion of the court:

Defendant, Kevin Zernel (Zernel), was charged in a 20-count indictment with aggravated criminal sexual assault, criminal sexual assault, armed violence and aggravated criminal sexual abuse. The charges stemmed from an incident involving a young woman, D.B., which took place on April 15, 1990, in defendant's Berwyn, Illinois residence. Prior to trial the State nolle prossed all but seven of the charges and, in a jury trial which commenced October 16, 1991, Zernel was tried on six counts of aggravated criminal sexual assault and one count of unlawful restraint. The jury found Zernel guilty on three counts of aggravated criminal sexual assault and not guilty of all other counts. The three convictions were merged and Zernel was sentenced on December 19, 1991, to 28 years' imprisonment on the merged convictions. Zernel filed a post-trial motion for new trial, which was denied, and he then filed a notice of appeal. *fn1

On appeal, Zernel contends that he was not proved guilty beyond a reasonable doubt because the verdict returned by the jury was legally inconsistent. Zernel also charges the prosecutor with misconduct and questions the propriety of an instruction given to the jury on aggravated criminal sexual assault. Zernel asks this court to reverse his convictions or, in the alternative, to remand for a new trial. For reasons that follow, we affirm Zernel's conviction and sentence.

At trial the following evidence was presented:

D.B. testified that about 8 p.m. on the evening of April 14, 1990, she went to Slip Shotz, a Berwyn tavern, with a friend, Al Elarde (Elarde). While at this establishment she met Zernel, who apparently had been previously acquainted with Elarde. About 10:30 p.m., D.B., Elarde and Zernel left Slip Shotz together to go to Papa T's for pizza. After Zernel ordered pizza, Elarde asked D.B. if she would drive Zernel to his residence a few blocks away so that Zernel could get $20 and return to Papa T's. Elarde stated that Zernel owed the $20 to him from a previous loan. Based upon assurances from Elarde thatZernel was a "nice guy," D.B. agreed to drive Zernel to his Berwyn apartment.

When they arrived at his apartment, Zernel persuaded D.B. to come inside. Zernel told D.B. that he lived with his mother and that she would enjoy her company. Also, he indicated that his mother would not let him leave again if D.B. didn't come inside with him. Based upon these representations, D.B. consented to accompany Zernel to his apartment. Inside the apartment D.B. met Zernel's mother, who was elderly and appeared confused. D.B. described the mother's conversation as rambling and her manner as nervous. D.B. attempted to converse with her while waiting for Zernel, who now said he couldn't leave because he was waiting for some telephone calls.

After speaking with Zernel's mother for about 20 minutes, D.B. asked Zernel for the $20 so she could leave. In response, Zernel told his mother to go to bed. His mother immediately left the room and then went into a room at the back of the apartment. Zernel then entered his bedroom, which was located just off the kitchen area. From inside his bedroom, Zernel called to D.B., who was preparing to leave. As she stepped through the doorway to his bedroom he grabbed her from behind and held a knife to her throat.

While still holding D.B. in a neckhold, Zernel closed the door to the bedroom. He then released her into the room and told her that she was his hostage and that he would kill her unless she did what he told her to do. According to D.B's testimony, Zernel did not strike her, but frequently grabbed her by the hair to direct her to the location that he wanted. Zernel boasted that he could kill her with his bare hands if he wanted. He also told her that he had a gun, while displaying a dark object that D.B. believed could have been a gun, and told D.B. that he would shoot her in the back if she ran. Finally, Zernel threatened to kill her and come after her family if she did not do as he said.

Subsequently, based upon the threats to her own life and to the lives of her family, D.B. complied when Zernel ordered her to disrobe and submit to various sexual assaults. The sex acts themselves need not be recounted here since they do not impact on the points raised in this appeal. Suffice it to say that D.B.'s testimony amply supported the the sexual assault elements of the crimes charged.

After Zernel had gratified himself, he permitted D.B. to dress and leave the apartment, once again threatening to kill her if she told the police. It was about 4:30 a.m. when D.B. drove home, having been in Zernel's apartment for more than four hours. At home, D.B., who was described as hysterical and sobbing, immediately woke her sister and told her what had happened. Although D.B. was frightenedbecause of the threats Zernel had made, she finally agreed to go to the hospital and to report the incident to the police.

The Berwyn police, upon being notified of the incident by D.B., began an investigation. Using D.B.'s directions to Zernel's apartment, Berwyn police officer Roger Montoro located Zernel and arrested him. A line up was conducted on the evening of April 15, 1990, at which time D.B. identified Zernel as her attacker.

Officer Volanti, an evidence technician for the Berwyn police, testified that he received certain pieces of evidence, including D.B.'s clothing, Zernel's clothing, and a Vitulo kit for D.B., that he packaged, processed and then delivered to the evidence lab. He also photographed Zernel after his arrest and went to the Zernel apartment, where he gathered more items of evidence, including the bedspread and sheet from Zernel's bed. Volanti testified that he recovered two knives taken from the countertop in the kitchen of Zernel's apartment, but that no knives or ...

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