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September 25, 1996


Appeal from the Circuit Court of Lee County. No. 93--CF--205. Honorable Thomas E. Hornsby, Judge, Presiding. This Opinion Substituted on Denial of Rehearing for Withdrawn Opinion of August 12, 1996, Previously

Released for Publication October 25, 1996.

The Honorable Justice Thomas delivered the opinion of the court: Inglis and Bowman, JJ., concur.

The opinion of the court was delivered by: Thomas

JUSTICE THOMAS delivered the opinion of the court:

A jury convicted the defendant, Ronald Scott Gapski, of one count of criminal sexual assault and one count of unlawful possession of a weapon by a felon. The trial court sentenced the defendant to concurrent terms of imprisonment of 30 years for criminal sexual assault and 10 years for unlawful possession of a weapon by a felon. The defendant appeals.

The 16-year-old victim, A.D., testified at the defendant's trial that she, along with several other of her siblings or half-siblings, 18-year-old J.D., 14-year-old J.G., 14-year-old C.D., and 10-year-old C.G., went to the defendant's house to spend the night on October 1, 1993. The defendant is her biological father. Upon arriving at the house, the defendant convinced A.D. to drink several cans of beer and a couple of shots of vodka. At that time, C.G. was present and she also drank some beer. A.D. eventually became sick and had to use the bathroom. As she sat on the toilet, the defendant came in and A.D. ordered him to get out. Thereafter, A.D. lay down on a bed in a first-floor bedroom and fell asleep. During the middle of the night, she was awakened when a man came into her bedroom and pulled her pants and underpants down and inserted his penis into her vagina. Because she was sick, scared, and having trouble breathing, she did not move. When the man finished, he zipped his pants and buckled his belt. Seconds after the man got off of her, a light was turned on in the room and the defendant was standing at the door. The defendant twice asked A.D. if she was alright; when she did not respond, he left the room.

A.D. further testified about an incident between her and the defendant which occurred a few years prior to the October 1, 1993, incident. She stated that the defendant had placed his hand around her vaginal area. She rolled over to avoid him and did not tell anyone of the incident because she was scared.

C.D. testified that everyone was drinking beer on the night in question. He noted that A.D. became sick and went to the bathroom, whereupon the defendant followed her and was eventually ordered to leave. C.D. noted that during the night he passed the bedroom A.D. was sleeping in and he heard the defendant moaning. He noted that he had heard the defendant moan before when alone in his bedroom with his wife. C.D. further testified that several weeks later the defendant's household received a call from the Department of Children and Family Services (DCFS). Shortly after the call, the defendant went to the garage to retrieve some bullets, loaded his gun, and stated that J.D. called the DCFS and he was going to shoot him.

J.D. testified that everyone was drinking on the night in question. He noted that the defendant provided beer and poured shots. He recalled that A.D. went to the bathroom and the defendant followed her in and then was ordered to get out. J.D. further testified that on November 1, 1993, he drank beer at the defendant's house and had a conversation with him. At that time, the defendant admitted that he had sexually assaulted A.D.

C.G. testified that she did not drink any beer on the night of October 1, 1993. She noted that the defendant and A.D. drank beer. She stated that A.D. became sick and during the night she began screaming that she was fat and ugly and hated her mother. At that point, the defendant attempted to calm A.D. That night C.G. slept in the living room on the love seat, and the defendant slept nearby on the couch. Around 6 a.m., she noticed that A.D. walked upstairs.

J.G. testified that during the evening of October 1, 1993, she saw A.D. take a beer from the refrigerator. She also testified that she only saw the defendant with beer. She stated that at some point A.D. screamed that she was fat and ugly. Around 1 or 2 a.m., she heard A.D. scream again and noted that the defendant and J.D. went into the bedroom. When A.D. fell asleep, J.D. and the defendant left the bedroom. The defendant and C.G. then went to sleep in the living room. J.G. then went upstairs to watch television with C.D. About 10 minutes later, J.D. came upstairs and she, J.D. and C.D. slept upstairs. Around 6 a.m., A.D. also came upstairs to sleep.

The 34-year-old defendant testified that on the evening of October 1, 1993, he drank beer in his garage but did not see A.D. or C.G. drink any as they conversed. Later, the defendant left the house and bought a quart of beer, which he drank as he drove around. When he returned to the house, he saw A.D. drinking a beer. He told her that he did not want her drinking, but since it was almost empty, he let her finish it. Later, the defendant opened a bottle of vodka and poured a shot for himself. According to the defendant, A.D. grabbed the shot and drank it. He then told her not to do it again. He proceeded to pour another shot and A.D. drank that one also. After that, A.D. did not drink anymore alcohol, but she began to act drunk about 20 minutes later. A.D. eventually became sick, and, when she began to lie down in the bathroom, he and J.D. carried her into the first-floor bedroom. C.G. and C.D. were also there. At that point, A.D. started screaming about her mother. The defendant attempted to comfort her. He noted that he was never in the bedroom alone with A.D. When A.D. finally fell asleep, he went to the living room and slept on the couch next to C.G.

The defendant further testified that around 3 a.m., he awoke and C.G. told him to tell A.D. to be quiet so she could sleep. He then went to the bedroom where A.D. had been sleeping. The room was gutted for remodeling and open to view. He flipped the light switch on and opened the door. At that point, he saw A.D. banging on the wall. He asked her what her problem was, and she replied that she did not know. He told her to be quiet, turned off the light, and then returned to the couch. He denied that he had removed A.D.'s clothes or had had sexual intercourse with her. He next saw A.D. when she came down the stairs and asked to use the shower.

On appeal, the defendant first contends that he was denied the effective assistance of counsel. Specifically, he contends that his trial counsel was ineffective in: (1) failing to move to sever the count of unlawful possession of a weapon by a felon from the count of criminal sexual assault, thereby allowing the jury considering the sexual assault count to hear of the defendant's 1977 burglary conviction; (2) failing to seek to bar evidence of the defendant's 1986 Wisconsin conviction of second degree sexual assault; (3) failing to object to A.D.'s testimony that the defendant had sexually assaulted her on a prior occasion; (4) erroneously informing prospective jurors during voir dire that the defendant had been to prison; (5) failing to object ...

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