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June 24, 1996


Appeal from the Circuit Court of Kane County. No. 92-CF-1999. Honorable Melvin E. Dunn, Judge, Presiding.

Released for Publication July 23, 1996.

The Honorable Justice Colwell delivered the opinion of the court: Bowman and Rathje, JJ., concur.

The opinion of the court was delivered by: Colwell

The Honorable Justice COLWELL delivered the opinion of the court:

Defendant, Kenneth A. Fisher, appeals his conviction of criminal sexual assault for committing an act of sexual penetration with a person whom he knew to be unable to give knowing consent. 720 ILCS 5/12--13(2) (West 1992). Fisher was found guilty following a jury trial in which it was found that Fisher had sexual relations with a 15-year-old girl who was rendered unconscious after she consumed a large quantity of alcohol. Fisher contends on appeal that (1) he was not proved guilty beyond a reasonable doubt, in that he produced rebuttal evidence which he claims shows that the victim was not unconscious and that she willingly participated in the sex act; (2) the trial court erred in instructing the jury that the definition of consent is a "freely given agreement" because that definition implies that mere impairment of the victim's faculties will suffice to show lack of ability to consent; and (3) the trial court erred in precluding itself from the proper exercise of its discretion by advising the jury before it deliberated that no requests by the jury for transcripts of testimony by the trial witnesses would be honored. We affirm.

The following facts were adduced at trial. The complainant, S.G., was spending the evening of November 28, 1992, at the home of a friend named Megan. Also present were friends named Cari and Heather. S.G., who weighs about 125 pounds, testified that she consumed approximately 15 cans of beer between 7 p.m. and midnight. Cari and Megan also were drinking beer; she was not sure if Heather drank any alcohol that evening. Around midnight, a cousin of Cari's named John called and invited the four girls to the home of John and Cari's uncle, the defendant. The four girls left Megan's home and drove to the defendant's house, arriving around 12:30 a.m. S.G. said she had another can of beer in the car along the way. Already present at the defendant's house were the defendant, another cousin named Jamie, John, and a boy named Bud. All of those present, except the defendant, ranged in age from 15 to 17; the defendant was 33 years old.

For the first hour or so after the girls' arrival, the entire group watched television in the living room, where all except Heather continued to drink beer. S.G. testified that she drank two or three more cans of beer. She said she did not remember speaking with the defendant. At some point, Megan, Cari, John, and Bud went upstairs. S.G. testified that she "didn't want to be around anybody" and "I just wanted to fall asleep," so she went to the kitchen and lay down on a "bench," which was described as being a portion of a booth surrounding the kitchen table. She was fully clothed when she lay down.

Some time later, S.G. said she awoke to discover that the defendant was having sexual intercourse with her. She noticed that her shirt was pushed up, her bra was unhooked, and her "pants were around one of my ankles." She testified that she told the defendant to "stop" and "I told him to get off me." She said the defendant did not stop and did not get off of her. S.G. said she did not yell because "I was confused" and "it didn't hit [me] like [sic ] what was happening." She testified that at that point "I fell asleep or I passed out again." The next thing she remembered was that Heather had come into the room and was "yelling" at the defendant. At that point the defendant got up and S.G. dressed herself and Heather took S.G. out to the car while she went to get the other two girls in order to leave. She said her friends then took her to the police station because "I wanted to tell them what happened." Police officials summoned an ambulance, and S.G. was taken to the hospital. S.G. testified on direct examination that at no time did she ever give the defendant permission to remove any of her clothing or to engage in sexual intercourse with her. She said she did not remove her pants herself.

On cross-examination, S.G. admitted that when the girls left Megan's house, she was able to walk to the car without help, was able to get inside the defendant's house without any assistance, that no one forced her to go inside, that the defendant sat next to her on the couch in the living when she first arrived, that she rose several times to retrieve more beer for herself from the defendant's refrigerator, and that she watched television in the living room with Jamie, Heather, and the defendant for approximately one-half hour after the other four people went upstairs. She then went into the kitchen under her own power, but did not remember the defendant coming into the room or remember having a conversation with him. She did not yell for help when she discovered him having intercourse with her, despite the fact that Heather was just a few feet away in the living room, because "I don't think it came in my mind." She stated that, after the act, she was able to get up from the floor where she had fallen off of the bench and to dress herself as she was handed pieces of her clothing by her friends.

Megan testified that S.G. had about twenty cans of beer at Megan's house before the girls went to the defendant's house. Megan described S.G. as acting "confused" and said she "couldn't really talk in full sentences." She could not "look directly at anybody" while still at Megan's house. Upon arrival at the defendant's home, S.G. "kept saying she just wanted to leave."

Megan testified that, after she had been upstairs with John for some time, Heather came upstairs and said, "he won't stop fucking her" and that Heather appeared very upset. Megan said she went downstairs and entered the kitchen in time to see the defendant "getting up" and that S.G. was lying on a bench. The defendant was in the process of pulling up his underwear as she entered. S.G. was lying flat on the bench and her head was "past the end" of the bench and was "hanging backwards." S.G. was crying, was wearing only a T-shirt, and "kept saying she wanted to leave." She described S.G. as "very drunk and very upset." Megan testified that later, as she waited for Cari to come downstairs so that they could leave, she heard the defendant say, "Am I going to go to jail for this?" On cross-examination, Megan conceded that when she was interviewed by a police officer the next day, she may not have told him that Heather had said "he won't stop fucking her" but may have instead told the officer that Heather had said "he won't stop having sex with her," although she could not remember precisely.

Heather testified she was the only one who did not drink any alcohol that evening. She described S.G. as "swaying" and "kind of bumping into me" as they prepared to leave Megan's house for the defendant's house. She said that, while the whole group was watching television, the defendant repeatedly complimented S.G. on her appearance and that S.G. seemed uncomfortable with his advances. S.G. would try to move away from the defendant and "just move kind of closer to Megan." After Cari, Megan, John, and Bud went upstairs, S.G. left the room and indicated she wanted to leave the house. Heather reminded S.G. that neither S.G. nor Heather possessed a driver's license and that they would have to wait for Cari and Megan. Heather told S.G. to just come and sit down with her in the kitchen, which S.G. then did. Heather testified that, after they talked for a short time, S.G. laid down on the bench and fell asleep. The defendant came in and asked Heather if she wanted to move S.G. upstairs. Heather declined, and the defendant then placed a blanket over S.G. Heather then returned to the living room and fell asleep on the couch. She was awakened by music. She sat up on the couch and called to the defendant in the kitchen, asking whether the music needed to be so loud, and he replied to the effect of "it's not bothering anybody." Heather then fell asleep again and was awakened a second time by "heavy breathing and banging on the wall." She went into the kitchen and found S.G. naked except for her T-shirt and socks and with her head "flopping backwards" off the end of the bench. S.G.'s eyes were "rolling back in her head." The defendant was "on top of" S.G. under the blanket, but Heather could see that he was not wearing a shirt. The defendant was moving "up and down." S.G. made no sound. Heather asked the defendant what he was doing, to which he replied to the effect of "she wants it." Heather lifted S.G.'s head and asked if she was all right, to which S.G. gave a groggy, unintelligible reply.

Heather returned to the living room because she did not know what to do, and she thought the situation "wasn't right." She told Jamie that his uncle (the defendant) was "in there fucking" S.G. Jamie asked the defendant what was going on, and the defendant replied "she wants it." Jamie then turned over on the couch and went back to sleep. Heather summoned Cari, Megan, John, and Bud from upstairs, again telling them "he won't stop fucking her." Megan, John, and Bud went to the kitchen with Heather. By now, S.G. was awake and crying. Heather helped S.G. get dressed by handing her items of her clothing from the floor. Heather took S.G. outside to the car, while Megan went to get Cari so that they could leave. When Megan and Cari did not immediately appear, Heather went back inside to find them. As the four were finally in the car to leave, Heather asked S.G. if she wanted to go to the police, and S.G. nodded. The four then proceeded to the police station.

On cross-examination, Heather admitted that she did not see exactly what transpired between the defendant and S.G. while Heather slept in the living room and ...

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