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06/21/96 PEOPLE STATE ILLINOIS v. KELVIN C. GARRETT

June 21, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
KELVIN C. GARRETT, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Jackson County. No. 94-CF-50. Honorable E. Dan Kimmel, Judge, presiding.

Presiding Justice Hopkins delivered the opinion of the court: Kuehn, J., and Goldenhersh, J., concur.

The opinion of the court was delivered by: Hopkins

PRESIDING JUSTICE HOPKINS delivered the opinion of the court:

Defendant, Kelvin C. Garrett, appeals his convictions, following a jury trial, for one count of home invasion and three counts of criminal sexual assault. On appeal, he raises four issues: (1) that he was not proven guilty of the offense of home invasion beyond a reasonable doubt, as there was no proof of bodily harm and the proof of psychological harm was inadequate; (2) that his two convictions for criminal sexual assault based upon penetration of A.W.'s vagina by his penis and by his mouth, respectively, must be vacated as these convictions arose from the same physical act underlying the injury element of the home invasion conviction; (3) that his conviction for criminal sexual assault based upon anal penetration must be reversed as the State failed to prove that an act of penetration occurred; and (4) that he was denied a fair trial when the trial court admitted evidence of another crime, which had no probative value and which was highly prejudicial. We affirm in part and reverse in part for the reasons set forth below.

I. FACTS

A.W. testified that on Sunday, March 14, 1993, she was a student at Southern Illinois University in Carbondale (SIU-C), and she lived in a trailer in the university Heights Trailer Park. At about 12:15 a.m. that morning, she arrived home and locked the front door of the trailer behind her. Although she had a roommate, she was alone as it was spring break and her roommate was in New York. She turned a light on in the living room, which she was going to leave on all night. She went to bed about 12:30 a.m. and fell asleep quickly since she was tired.

The next thing she was aware of was someone trying to wake her up. When she awoke, the light was out and someone was standing before her wearing a white mask, which had two holes for eyes and one hole for a mouth. From the area of these holes, the skin she saw appeared not to be white skin as it was very, very dark. She screamed and the man placed his hand over her mouth and told her not to move or say anything or he would kill her.

The man had A.W. place her pillow over her eyes. He pulled the blanket down and removed her pants. He did not remove her top. Just then, the telephone rang and the man became nervous and asked who would be calling her. A.W. testified that the voice was definitely a black dialect.

The man performed oral sex on A.W., and when he finished, he told her again not to move and to keep the pillow over her head. She stated that the man took his mask off to perform oral sex, as she could feel his skin and hair. His hair was very short and coarse and felt like a black person's hair. A.W. believed that the man then left the room, for she heard a light switch, and when the man returned to her bedroom, he had her lotion with him, which she recognized from the smell. Upon returning, the man turned her over onto her stomach and rubbed lotion on her buttocks and anus. She cried and asked him "not to do it." The man then penetrated her vagina with his penis. A.W. described the penetration as very painful, and she said that it was very forceful and aggressive, almost violent. The man ejaculated inside her, got up, and once again told her not to move. The man went to the bathroom, A.W. heard the water run, and then he returned with a wet cloth and cleaned her off. During this time, the man told her that he knew who she was, knew her name, knew the neighborhood, and knew where she lived, and that she should not try to call the police or he would come back and kill her. He also told her that he had a ride coming to pick him up, but it would not be there for about 15 minutes and not to move.

After about 10 minutes, A.W. removed the pillow from her head and looked to see if the man was still present. She got out of bed, put her pants on, turned on a light and walked around the trailer, and then went to the bathroom. When she came out, she noticed that the chain lock on the back door was swinging, which was unusual as the door was always locked.

A.W. called her ex-boyfriend, who she knew had been trying to call her, and had him come and get her and take her to the hospital. At the hospital, evidence of her assault was collected.

Although A.W. did not see a weapon, she assumed the man had one since he threatened to kill her. She also testified that the man never asked for money or jewelry or any other property. He did not fondle her or kiss her prior to the assault. She did not give the man authority to enter her trailer that night. She stated that she was unable to identify the man who assaulted her.

Since the assault, A.W. has had nightmares about rape. She will not go out at night alone. She missed work for about three weeks. She now sees a counselor and is on the medication Trazodone, which her psychiatrist prescribed for her to help her sleep.

Kathy Cheek-Schumacher testified that she is a registered nurse, and that on March 14, 1993, she was on duty when A.W. came to the emergency room. A.W. was tearful, tremulous, and very upset. A.W. said she had been sexually assaulted, so Cheek-Schumacher, along with Dr. Rush, completed a sexual assault kit by taking vaginal and oral swabs. Because A.W. indicated there was no anal intercourse, rectal swabs were not taken. Cheek-Schumacher turned this kit over to Detective Dave Youngberg of the Carbondale Police Department

Doug Brinkley, a police officer for the City of Carbondale, testified that at approximately 1:37 a.m. on March 14, 1993, he performed a traffic stop on defendant. Defendant was driving a brown Oldsmobile. Brinkley could not recall why he stopped defendant, but he remembered that a citation was issued to defendant for no insurance. The traffic stop occurred about a mile and a half from A.W.'s residence.

The trial court instructed the jury that they were about to hear testimony about another offense, and that the evidence was to be received on the issue of defendant's "identification, intent, motive, design and knowledge" and could only be considered by them for this purpose. The jury was also instructed that it was up to the jury to determine whether defendant was involved in the offense and, if so, what weight it should be given.

T.B. testified that at about 2:30 a.m., on Sunday, August 16, 1992, she and one of her roommates returned to their apartment after an evening of socializing. SIU-C was not in session at the time, as it was after summer school and prior to the beginning of the fall semester. Her roommate left the apartment to go find her driver's license, which she had lost on their walk home. T.B. fell asleep on the couch with the light on. The next thing she knew, she awoke and the light was off, and there was a black man on top of her with his hand over her mouth. He said that if she said anything, he would kill her.

The man took her shorts off but left her top on. He performed oral sex on her for about five or 10 minutes, then got on top of her and placed his penis inside of her. Although it was her period, the man did not remove her tampon. He ejaculated and then got off her. He kissed her forehead and told her to turn over, which she did. The man went to the doorway, stood there a minute, and then left. T.B. thought the man had a red bandanna on his head. When her roommate returned a couple of minutes later, the police were called.

T.B. never saw a weapon, but she testified that the man had his hand in a fist behind her back, so she did not know if he was holding a weapon or not. The man never asked for money or jewelry. He did not fondle or kiss her prior to the sex act. Because the ...


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