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March 12, 1996



The Honorable Justice Scariano delivered the opinion of the court: Hartman, P.j., and Divito, J., concur.

The opinion of the court was delivered by: Scariano

JUSTICE SCARIANO delivered the opinion of the court:

On March 13, 1994, the complainant in this rape case, M.O., a thirty year old teacher, went to watch the South Side Irish Parade with her sisters Aileen and Fiona, and her cousin Noelle. Because it was cold and rainy, they left the parade and went to Ken's Guest House, a nearby tavern. M.O. consumed one soda and one and a half beers. Around 3:30 p.m. they left Ken's and waited in line to go into Keegan's Pub.

Michael Callahan, who was married to a cousin of M.O., was working Keegan's door that day. He testified that prior to M.O.'s arrival, he noticed twenty-five year old Eric Carlson ("defendant"), who was drinking pints of cider (an alcoholic beverage), and who had his shirt off, showing some patrons his tatoos. According to Callahan, defendant "was very hyper". Although defendant admitted he had tatoos on his biceps, legs, and calf, he denied taking his shirt off at the bar.

Fiona left the bar because she was not feeling well. After an hour or two at Keegan's, M.O. met defendant and they engaged in small talk while getting drinks at the bar. Some time after M.O. returned to her sister and cousin with the drinks, she noticed defendant standing about twelve feet away. After exchanging looks, he "nodded" his glass and she approached him. He told her he was a police officer; however, he neglected to tell her that he had just been suspended. After about forty-five minutes to an hour of talking and joking, M.O. kissed defendant. At this point, M.O. had consumed two beers at Keegan's. She claimed that she was not affected by the alcohol and "was in a very good state of mind." After M.O. and defendant decided to go next door to a bar called Cork and Carry, she went back to where her sister and cousin were standing and told them she was going next door and would return; Aileen and Noelle promised to wait for her.

When M.O. and defendant went outside, they noticed that Cork and Carry was closing, and that the line was too long to go back into Keegan's, so they began walking and talking. Defendant claimed they kissed and, "she rubbed my crotch" through his clothes. At some point, defendant suggested that he get his car so that they could go to another bar. Because it was still cold and rainy, she waited for him to pick her up in a bar called Bucko's.

Ten to twenty minutes later, he returned driving a 1994 black Chevy Camaro. When she got in the car, they kissed. Then, defendant drove the car around the corner and put it in park. M.O. testified that the lighting conditions were "fully dark" and the street lights were on. "And then," according to M.O., "everything went crazy." She remembered the seat reclining and her "flying back in the seat." At trial, defendant claimed he did not recline the seat and did not know who caused it to do so. M.O. stated, "I remember him putting his hands in my pants." "I was begging him to stop. I was pleading. I was asking him, please, I don't want this." According to M.O., he made no verbal response, but just kept "pawing" her in places she did not want to be pawed.

Then, according to M.O., "the next thing I knew my pants were being pulled down. And he stuck his fingers in my vagina." M.O. claimed that at this point, defendant was positioned "over" her. She said, "He was over me", and "I mean, his whole body over on my side. But he was over me." On cross-examination, when asked whether she cooperated in taking off her pants, she testified that she did not cooperate, but instead, "laid there like a dead fish." When asked by defense counsel why she did not try to get out of the car, she stated, "I was frozen. I didn't know what to do. I was frozen. I couldn't move. I was terrified." M.O. testified that after he pulled her pants down, "I was begging him to stop. I kept saying please, no, this can't be happening to me. I don't want this to happen. I really don't." M.O. said that in response to her pleading, defendant told her she had a "beautiful pussy". Defendant, on the other hand, testified that she made no indication that she did not want him to perform oral sex, and that she, in fact, took her pants off.

When he finished performing oral sex, she thought it was over and that she could get up. However, when she opened her eyes to get up, she testified that she found that he was "bracing himself against the door [with his left hand]. And he was fiddling with his penis. Putting a condom on [with his right hand]." According to M.O., after she saw this, "I just begged and I begged and I begged and I said no, no, no, this can't be happening. No, I don't want this to happen. This isn't what I want." Then, "he rammed his penis in me. The pain was so bad. I never experienced pain like that before in my entire life. I just kept begging him, stop, please, this hurts."

When he finished having intercourse with her, she claimed she "curled up into a ball" and hugged her knees to her chest and cried. She said that defendant asked her if she was all right. In contrast, defendant alleged that after they were finished, she said, "I didn't know it would be this good." She remembered that she may or may not have told him that she wanted to go home, and the car started to move. She stayed where she was because, as she testified, her "body couldn't move"; and when she felt the car move she got up to get dressed, because she "knew that when he was driving he wouldn't come near [her] again."

When the car pulled up in front of Keegan's, she got out and, although she did not remember going through the door there, she remembered being inside. She did not recall saying anything to defendant when she got out of the car. According to Callahan, who was still working the door, he saw M.O. return to Keegan's between 7 and 8 p.m.. He noticed that she looked different than she did earlier that day because her sweater was "wrinkled, [and] very ragged". She appeared untidy and her hair was tossed. Callahan testified that M.O. had been crying and her eyes were red, her make-up had run, and her cheeks were streaked. He asked her if she was "ok", but she appeared disoriented and walked past him straight for Aileen without giving any indication that she knew him.

Although M.O. did not remember having a conversation with her, Aileen testified that she was "rambling" and "not making sense"; that she looked disheveled, and seemed to be crying, and that her make-up was streaked. Aileen noted that M.O. had a "wild-eyed appearance", looked "vacantly", and was looking around like a "scared animal". M.O. went to the bathroom and saw Noelle, but she did not remember talking to her. Noelle testified that she "looked upset" as if she were "on the verge of tears". She asked M.O. if the "guy" had turned out to be a "jerk" and M.O. nodded her head and looked away as if she were going to start crying. She went into the bathroom ahead of Noelle who was also waiting in line to use it. Once inside the bathroom, M.O. lost her balance. When she came out, Noelle noted that she was crying and "wild-eyed". According to Noelle, "she just sort of brushed past me as if I wasn't there." When M.O. returned to Aileen from the bathroom, she was rambling and unfocused. After Aileen grabbed her by the shoulder, she told Aileen, "he hurt me" and "he raped me". When Noelle returned, Aileen told her that M.O. had been raped, and they decided to go to the hospital.

M.O.'s brother picked up M.O., Aileen, and Noelle from the bar and drove them to Christ Hospital. Aileen and Noelle testified that during the car ride, M.O. was "hysterical". According to Noelle, she was, "sobbing ...

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