Appeal from the Circuit Court of Cook County. Honorable Loretta Hall Morgan, Judge Presiding.
As Corrected November 2, 1994. Petition for Leave to Appeal Allowed February 1, 1995.
AUTHOR: CERDA; RIZZI; GREIMAN
JUSTICE CERDA delivered the opinion of the court:
Following a jury trial, defendant, Edward Rodriguez, was convicted of aggravated criminal sexual assault (Ill. Rev. Stat. 1991, ch. 38, par. 12-14(a)(1) (now codified as 720 ILCS 5/12-14 (a)(1) (West 1992))), home invasion (Ill. Rev. Stat. 1991, ch. 38, par. 12-11(a)(1) (now codified as 720 ILCS 5/12-11(a)(1) (West 1992))), and intimidation (Ill. Rev. Stat. 1991, ch. 38, par. 19-3(a)(1) (now codified as 720 ILCS 5/19-3(a)(1) (West 1992))). He was sentenced to 35 years' imprisonment for the aggravated criminal sexual assault and 35 years' imprisonment for the home invasion to run consecutively. He was also sentenced to five years' imprisonment for intimidation to be served concurrently.
On appeal, defendant asserts that (1) the admission of hearsay statements showing that he had a propensity to commit sex crimes was reversible error; (2) the admission of other crimes evidence violated the rules of discovery; (3) the admission of hearsay statements by the State's investigator was prejudicial; (4) the trial court erred in barring testimony about the victim's description of the gun to police; and (5) defendant's conviction for home invasion should be vacated because it was a lesser included offense of, and was based on the same physical acts as, the aggravated criminal sexual assault. We affirm in part and vacate in part.
The victim, B.L., testified that she was 13 years old on February 20, 1991, when she spent the night at the home of her best friend, Salina Rodriguez, who is defendant's daughter. That night, defendant touched B.L.'s breasts and buttocks. He was later arrested and given a March 1991 court date.
On February 28, 1991, B.L. went to sleep at 9 p.m. She was alone in her bedroom. During the night, she heard her bedroom door open and close. B.L. stated that she saw defendant, who was standing in front of her bed, staring at her. B.L. turned her head toward the wall and put the covers over her head, but defendant sat on the bed and pulled back the covers. As he touched B.L.'s back and breast, she cried and told him to leave her alone, but he told her to shut up. He touched her stomach and breasts, then rubbed her thighs and vagina. B.L. slapped his hand away, but defendant took out a black gun with a brown handle and pointed it at her face. He then took off her underwear and put his finger inside her vagina.
At that point, defendant got up and unbuttoned his shirt and pants. He then proceeded to insert his penis inside B.L. When his penis was halfway into her vagina, he took it out and masturbated, then put B.L.'s hand on his penis. When she pulled it away, defendant took out his gun and rubbed it across her stomach to her leg. He then took her hand and made her rub his penis. Again, defendant put his penis inside B.L., then took it out, kissed her breast and vagina, and stuck his tongue into her vagina.
Defendant told B.L. that he would kill her or get someone to kill her if she went to court or said anything against him. Defendant pointed out how easy it was for him to get into her apartment. Defendant also said that he would hurt her and kill her family when he got out of prison.
According to B.L., she heard her mother, who gets up around 5:30 or 6 a.m., walking around. Defendant told B.L. to shut up, then pulled the blanket over his head and got between B.L. and the wall. When B.L.'s mother came in and told her "to get up and get the curling iron," defendant rubbed his penis against B.L.'s buttocks and pointed the gun in her back. B.L. told defendant that her mother would come in again if she did not get up, so B.L. got up, put on a T-shirt and underwear, and went into the bathroom, where she signalled to her mother. B.L., who was crying and shaking, told her mother that defendant was in the bedroom, had a gun, and had raped her.
Because there was no telephone in the apartment, B.L.'s mother went outside to call the police. As she went out the side door, B.L. saw defendant leaving through the back door. She called to her mother, telling her that defendant was leaving and had a gun. When her mother returned, they waited for the police. When the police did not arrive, B.L. and her mother went to the police station. They took the police officers to defendant's home, then B.L. was taken to Mercy Hospital.
On cross-examination, B.L. denied that Tim Baugh, a friend, was with her on February 27 or 28, 1991. B.L. stated that she did not scream during the attack because she was afraid that defendant would hurt her or her family. B.L. said that there were Newport cigarettes left in her room after the attack, but that both defendant and Baugh smoked Newports.
In addition, B.L. explained that the reason she and Salina went to the police station on February 20, 1991, was that Salina came to her home and said that defendant had molested her. She denied that she and Salina planned to have defendant arrested so that Salina could go out more often.
Alice Lietz, B.L.'s mother, testified that on February 23, 1991, she was awakened from her sleep when she felt someone in her home. She saw a man staring at her from the doorway. Lietz asked the man what he was doing in her home, but he just stared. Then, he went into the kitchen, took something off the table, and went out the back door. After he left, Lietz noticed that the back door had been pried open.
Lietz reported the incident to the police. She described the man as being in his late 30's, 5 feet 4 inches tall, and weighing 130 to 140 pounds. He had dark hair and a moustache and was wearing a grey coat and dark pants. Lietz had never seen the person before, although she now knew that it was defendant. On February 28, 1991, Lietz got up at 5:30 a.m. When she could not find her curling iron, she went into B.L.'s bedroom to ask her to get it. B.L. was completely covered, seemed nervous, and would not get out of bed. After Lietz returned to the kitchen to pour a cup of coffee, B.L. came out of the bedroom and went into the bathroom. When she motioned to Lietz, she was shaking and crying. She told Lietz that defendant was in her bedroom and had a gun.
As Lietz took B.L. into her own bedroom, she passed B.L.'s bedroom and saw the blanket moving. Lietz woke up her son and told him to stay with B.L. Lietz got dressed and went to call the police. After she went out the side door, B.L. shouted that defendant was going out the back door. Lietz went around the building and saw defendant walking down the stairs. Lietz yelled to defendant that she knew who he was. According to Lietz, the man she saw leaving her home on February 28, 1991, was the same man who was in her apartment on February 23, 1991.
After calling the police, Lietz returned home. After waiting for 10 minutes, she and B.L. went to the police station. The police officers took them to defendant's home, where they identified him. Then, B.L. was taken to the hospital.
Chicago police officer Daniel Lukensmeyer testified that on February 28, 1991, at 7 a.m., he spoke with B.L., who was whimpering and holding onto her mother. After B.L. told him that she had been sexually assaulted by defendant, Officer Lukensmeyer went to defendant's home with B.L. and her mother.
Victoria Gonzalez, defendant's common law wife, answered the door and directed the police officers to the living room where defendant was sitting on the couch. After defendant was placed under arrest and advised of his Miranda rights, his apartment was searched for a gun, but none was found. When Lukensmeyer walked ...