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May 31, 1994



As Corrected August 5, 1994. Petition for Leave to Appeal Denied October 6, 1994.

Scariano, DiVITO, Hartman

The opinion of the court was delivered by: Scariano

JUSTICE SCARIANO delivered the opinion of the court:

Defendant Ramon Zarate was charged by information with two counts of home invasion (Ill. Rev. Stat. 1989, ch. 38, par. 12-11(a)(1), (2), now codified at 720 ILCS 5/12-11(a)(1), (2) (West 1993)) one count of armed violence (Ill. Rev. Stat. 1989, ch. 38, par. 33A-2, now codified at 720 ILCS 5/33A-2 (West 1993)) one count of residential burglary (Ill. Rev. Stat. 1989, ch. 38, par. 19-3, now codified at 720 ILCS 5/19-3 (West 1993)), and one count of aggravated unlawful restraint (Ill. Rev. Stat. 1989, ch. 38, par. 10-3.1(a), now codified at 720 ILCS 5/10-3.1(a) (West 1993)) in connection with an attack on Christin Ernst. He appeals from his home invasion and armed violence convictions.

At defendant's bench trial, Ernst testified that on February 5, 1992, at about 6:35 a.m., she was assaulted by an intruder while she showered in her twenty-first floor apartment in the Parkshore Apartments at 195 North Harbor Drive in the City of Chicago. Ernst was standing with her back to the shower head, washing her hair with her eyes closed, when she felt someone grab her right arm. The tub's clear plastic shower curtain was partially open, and, when she opened her eyes, she was able to see a man standing outside the tub with a white plastic bag over his head holding a knife in his right hand. The man held what Ernst described as a diver's knife with a blade approximately six inches in length. Ernst sought to grab the man's right hand and struggled with him until she slipped and fell, hitting the tub nozzle in such a way as to cause the water to flow from that source rather than from the shower head. The man then reached over her and stabbed her in the leg; they continued struggling for another minute or two until he got up and ran out of the bathroom, leaving the plastic bag.

Ernst testified that during their approximately five-minute encounter, the man's face was about 10-to-12 inches from hers and that she could see the side of his head, his straight black hair, his eyes, and the upper part of his nose through the large eyeholes in the bag. He was wearing a Parkshore maintenance uniform, consisting of dark blue pants and a white short-sleeved shirt with patches on either side of the chest. He was somewhat overweight and his shirt fit snugly. Ernst recognized her assailant as defendant, a Parkshore maintenance man, whom she had seen approximately thirty times before in the building.

After her attacker left, Ernst closed the bathroom door and began screaming. She then turned off the water so she could listen for his movements in case he was still in her apartment. When she believed that he was gone, she wrapped a towel around herself and went out into the hall, banging on apartment doors until her neighbor in apartment 2101, Mark Glennon, opened his door and took her in. He called the police and periodically opened his door to check for their arrival. At one point when Glennon opened his door, Ernst looked out, and saw defendant with a security guard in the hallway; she immediately screamed at defendant, "That's him! That's him! Keep him away from me!"

Within a few minutes, the police arrived, and Ernst was taken to Northwestern Hospital. She required eight stitches in her knee where she had been stabbed. She also suffered bruises and a bump on the back of her head as a result of the attack.

On cross-examination, Ernst stated that during the six months she resided in the building, maintenance men periodically had entered her apartment in her absence to make repairs; she insisted, however, that she saw and recognized her attacker. She further stated that defendant was pulled down when she fell, but that he was not pulled into the tub which had "very little" water in it because it had been draining out as she showered. She conceded that there were two or three maintenance men who, like defendant, were Hispanic. On re-direct examination, she contended that none of the other Hispanic maintenance men resembled defendant.

Glennon testified that when Ernst entered his apartment, she told him that she recognized her attacker, stating that "it was one of the maintenance guys." He also corroborated Ernst's testimony regarding her identification of defendant as he walked down the hall with the security guard.

Alejandro Negron, a Parkshore doorman and security guard, testified that at about 6:30 a.m. on February 5, 1992, he received a call from a tenant who had heard screaming which she believed came from the twenty-fourth floor. He radioed defendant, who was on-duty at the time, and told him to investigate. About one minute later, he received a call from another tenant who had heard screaming that she thought came from the twenty-second floor. Negron again radioed defendant and told him to check the twenty-second floor. A few minutes later, defendant came to the lobby and reported that he had found nothing. Negron and defendant then went together to the twenty-fourth floor and checked that floor and each of three lower floors, descending on the staircase. When they reached the twenty-first floor, Glennon called to them that the victim was in his apartment. Ernst looked out and identified defendant as her attacker.

Negron testified that monitors were positioned at his desk in the lobby of the building and that he had not noticed anyone unusual entering or exiting the building that morning. He also stated that defendant did not resemble the other two Hispanic maintenance men who worked at Parkshore.

On cross-examination, Negron recalled that when defendant came down to the lobby, he looked neat and had a calm demeanor. Defendant asked Negron to call his boss, Joe Cacic, after Ernst accused him of attacking her.

Officer Frank Bresnahan testified that he and his partner were called to the Parkshore at about 7 a.m. on February 5, 1992. He met with defendant and noticed that he had some small blood stains on his shirt. At Bresnahan's request, defendant changed shirts and gaveBresnahan his uniform shirt. Bresnahan noticed that defendant's uniform shirt was tight on him. On cross-examination, Bresnahan recalled that defendant did not look wet and that a search of the area failed to uncover a weapon.

Detective William Mosher, who was assigned to investigate the assault on Ernst, testified that he and his partner interviewed defendant at about 11 a.m. after informing him of his Miranda rights. Mosher noticed scratches on defendant's left cheek and when he inquired of defendant how he got them, he stated that he could not remember. Mosher also noticed an approximately two-inch cut extending from the top of ...

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