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03/08/95 PEOPLE STATE ILLINOIS v. RICHARD J.

March 8, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
RICHARD J. WHITTEN, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Shelby County. No. 91-CF-32. Honorable E.C. Eberspacher, III, Judge, presiding.

The Honorable Justice Lewis delivered the opinion of the court: Chapman and Goldenhersh, JJ., concur.

The opinion of the court was delivered by: Lewis

JUSTICE LEWIS delivered the opinion of the court:

Defendant, Richard J. Whitten, appeals from his conviction for criminal sexual assault. Following a jury trial, the court sentenced defendant to four years' incarceration. On appeal, defendant raises the following issues: (1) that the State failed to prove that the victim was unable to give knowing consent, (2) that one of his convictions for criminal sexual assault must be vacated under the "one act, one crime" rule, (3) that the court erred in precluding defendant from examining complainant about her knowledge of sexual matters by erroneously applying the rape shield law, (4) that the court erred in allowing a State witness to give her expert opinion on complainant's ability to knowingly consent to sexual intercourse, since there was no basis for her opinion, (5) that the court erred in not granting a mistrial because the serologist's testimony was irrelevant and prejudicial to defendant, (6) that the cumulative errors deprived defendant of a fair trial, and (7) that the court erred in ordering that the remainder of defendant's bail bond be used to reimburse the costs for appointed counsel, where defendant was not present at the hearing and the record indicates that the bond was borrowed from defendant's friends. We affirm in part and vacate in part for the reasons set forth below.

The pertinent facts are as follows: Complainant, a 32-year-old developmentally disabled female with an intelligence quotient (IQ) of 54 and a functional level of nine years and nine months, testified that on the evening of June 30, 1991, defendant entered her apartment by using a pass key. Complainant was in a community living arrangement (CLA) program at the Cornerstone Apartments (the Apartments), a residential living program for developmentally disabled adults. Defendant, a 56-year-old male, was an employee of a community integrated living arrangement (CILA) program, another residential living program at the Apartments. Defendant had worked at the Apartments for approximately a year before this incident occurred.

About 9:15 p.m. on June 30, 1991, after entering complainant's apartment uninvited, defendant took complainant to her bedroom and "had sex" with her against her will. Complainant did not protest, cry out, or physically resist defendant. Complainant reported defendant's actions to the staff at the Apartments the following morning, July 1, 1991.

Complainant was taken to the emergency room at the hospital, where Dr. Siroy performed a rape test on her. The results of these tests revealed that complainant had semen inside her vagina. William Frank, a serologist, testified that his analysis of the semen disclosed that it could have come from any male, given that complainant was a secretor and defendant and she had the same blood type.

The State presented the testimony of other witnesses who established complainant's functioning level and her ability to understand and her knowledge of sexual matters. The State's evidence also revealed that only defendant and another employee, Delores Martin, were on duty at the time the offense occurred.

Defendant testified in his own behalf. He basically denied that he committed the act of sexual penetration, and he stated that he had medical problems which would prevent his performing sexually in the manner described by complainant. Defendant's testimony and the testimony of his witness, Carol Lilly, were contradicted by the State's witnesses.

The jury found defendant guilty of two counts of criminal sexual assault. The court entered judgment on the verdict. Defendant filed a posttrial motion, which was heard at his sentencing hearing.

On appeal, defendant first contends that he was not proven guilty beyond a reasonable doubt, as the State failed to prove that complainant was unable to give knowing consent and failed to prove that any force was used or threatened to accomplish sexual penetration. Defendant claims that only complainant and Roseanne Helton (Helton), a case coordination unit coordinator who has complainant on her case load, provided the evidence that established that complainant was unable to consent and that this evidence was insufficient. With regard to the use of force, defendant argues that the State's evidence revealed that defendant took complainant by the hand and led her to the bed, re-arranged her clothing and sexually penetrated her, without struggle or protest by complainant. Further, defendant did not threaten complainant. Defendant contends that this evidence does not establish the use of force necessary to prove him guilty beyond a reasonable doubt of that count of criminal sexual assault. We disagree as to both arguments.

We first address defendant's claim that the evidence failed to establish that complainant was unable to knowingly consent to sexual intercourse. When reviewing the sufficiency of the evidence of a conviction, the standard for review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. ( People v. Bowen (1993), 241 Ill. App. 3d 608, 609 N.E.2d 346, 182 Ill. Dec. 43.) In applying this standard, a court of review cannot substitute its assessment of the evidence and the inferences to be drawn from it for that of the trier of fact. ( Bowen, 241 Ill. App. 3d 608, 609 N.E.2d 346, 182 Ill. Dec. 43.) Because much of defendant's argument concerns the credibility of the witnesses, we must also keep in mind the principle that it is the trier of fact who determines the witnesses' credibility, and we cannot substitute our judgment of credibility for that of the trier of fact. ( Bowen, 241 Ill. App. 3d 608, 609 N.E.2d 346, 182 Ill. Dec. 43.) We find that the evidence was sufficient for a rational trier of fact to find defendant guilty of criminal sexual assault and that complainant was unable to give knowing consent to the act of sexual intercourse.

Complainant's testimony revealed that she did not consent to sexual intercourse with defendant. She testified that defendant did not ask her permission, and in fact, he did not say a word to her. Complainant stated that she did not give him permission to have sex with her and that she did not want to have sex with defendant. Complainant admitted that she did not cry out when defendant violated her. However, a victim's failure to cry out or to escape at the earliest opportunity is not determinative of whether the victim consented to sexual intercourse. ( Bowen, 241 Ill. App. 3d 608, 609 N.E.2d 346, 182 Ill. Dec. 43.) Similarly, although complainant did not fight or struggle with defendant, this fact is not evidence that she consented to the sexual act. Bowen, 241 Ill. App. 3d 608, 609 N.E.2d 346, 182 Ill. Dec. 43.

Complainant testified that she had not received any sex education. Additionally, Helton testified that complainant had an IQ of 54 and was mildly mentally retarded, but that she functioned at the 9-year-9-month-old level. While complainant cooked some meals for herself and could go shopping and received money for her work at the rehabilitation center, the evidence presented at trial created the inference that she had never lived alone. Helton had known complainant for about 12 years and had counseled her regularly regarding her problems in dealing with other people. Helton also testified that, in her opinion, complainant would not understand the long-term ramifications ...


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