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12/30/96 PEOPLE STATE ILLINOIS v. JORGE REVELO

December 30, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JORGE REVELO, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lake County. No. 95--CF--121. Honorable John R. Goshgarian, Judge, Presiding.

Released for Publication March 12, 1997.

The Honorable Justice Hutchinson delivered the opinion of the court: McLAREN, P.j., and Doyle, J., concur.

The opinion of the court was delivered by: Hutchinson

JUSTICE HUTCHINSON delivered the opinion of the court:

Defendant, Jorge Revelo, appeals from the trial court's orders denying his various post-trial motions. Defendant was charged by indictment with three counts of aggravated criminal sexual assault. See 720 ILCS 5/12--13(a)(1), 12--14(a)(2) (West 1994). Following a jury trial, defendant was found not guilty on counts I and III of aggravated sexual assault; he was found guilty on count II (placing his mouth on the complainant's vagina). The trial court sentenced defendant to a seven-year term of imprisonment.

On appeal, defendant contends: (1) he was denied his right to a public trial because the trial court excluded the members of his family from the courtroom during the testimony of the complainant, A.S.; (2) his conviction was supported by insufficient evidence that he used force against A.S. or that A.S. suffered bodily harm; (3) the trial court abused its discretion in denying defendant's motion to suppress a statement he made after the police told him a test had revealed the presence of his sperm within A.S.'s vagina, where the police had not yet obtained the test results; and (4) the trial court erred by preventing defense counsel from introducing evidence that the interrogating police officer obtained two signed statements from defendant before informing him of the charges against him. We reverse and remand.

Defendant and A.S. had known one another since their childhood in Mundelein, Illinois. Although the two were never romantically involved, they were friends. Similarly, A.S.'s and defendant's families were friendly and often socialized together. After A.S.'s family moved to Round Lake, Illinois, she and defendant saw each other less frequently. A.S. was 16 years old in December 1994.

On December 17, 1994, defendant, A.S., her friend Melissa McGowan, and two of defendant's friends went out for the evening. A.S. testified that before leaving McGowan took an "over-the-counter cold remedy" called Nyquil. The plan for the evening was to attend what A.S. described as a "quinceanera, a cotillion." By the time the five youths arrived, the quinceanera was over. Eventually the group decided to eat at an all-night restaurant. According to A.S., they ordered shakes and shared a "basket of fries and barbecued chicken wings." After eating, the group left the restaurant. It was approximately 12:30 a.m. on December 18, 1994.

Because of the hour, defendant offered to allow McGowan and A.S. to spend the night at his parents' home. A.S. and McGowan were to sleep in the basement living room on a "pull-out" sleeper sofa. A.S. and McGowan accepted the offer. Defendant's friends dropped off A.S., McGowan, and defendant. The three sat in the living room and started watching a movie.

Defendant, A.S., and McGowan drank alcoholic beverages. A.S. stated defendant asked if she would like something to drink. However, defendant testified that A.S. volunteered, "Man, I want to get smashed." According to defendant, McGowan initially stated she did not wish to drink. Defendant and A.S. went upstairs to the kitchen. A.S. testified that while in the kitchen defendant asked her if she had ever cheated on her boyfriend, Chuck. Defendant attempted to kiss A.S. A.S. stated that she pushed defendant away and he relented. Defendant testified he and A.S. each drank three shots of whiskey; A.S. stated she drank two half shots. Upon returning downstairs, the two learned McGowan had changed her mind and now wished to have a drink. The three returned to the kitchen and McGowan drank three shots of whiskey. Defendant testified he and A.S. had "at least one more shot each"; A.S. stated that defendant alone had another shot of whiskey. Once downstairs, A.S. asked for and received a pair of defendant's shorts to wear. After putting on the shorts, A.S. and McGowan went to sleep on the sleeper sofa.

At this point, the accounts of defendant and A.S. diverge; we relate A.S.'s testimony first. A.S. was lying between defendant and McGowan. A.S. stated she awoke to find defendant rubbing her hands. A.S. testified she did not give him permission to do so. A.S. pulled her hand away, turned away from defendant, and "scooted over by" the sleeping McGowan. A.S. testified that defendant then "started to put his hands up my shorts." He then began rubbing A.S.'s vagina. A.S. testified she did not give defendant permission to do so and "told him to stop." A.S. tried to push defendant away. In response, defendant put his finger inside A.S.'s vagina. Again, A.S. testified she had not given him permission to do so. A.S. stated defendant's action "hurt." She placed her foot on defendant's hand and tried, albeit unsuccessfully, to push his arm down. A.S. stated she told defendant to stop "three or four times."

Defendant then stopped, stood up, and kneeled by the sleeper sofa. A.S. testified that as defendant stood up she "scooted up by [McGowan's] head." A.S. stated she tried to wake McGowan by calling her by name and "pushing her in the head." McGowan did not awaken.

While attempting to wake McGowan, A.S. felt defendant grab her by the ankles and pull her towards him. As defendant pulled, A.S. fell backwards, striking her head on a pole forming part of the frame of the sleeper sofa. A.S. testified that as defendant tried to pull down her shorts and undergarment she attempted to pull them up. Moving A.S.'s hands away, defendant removed her shorts and undergarment. A.S. was lying on her back. Grabbing her ankles again, defendant pushed A.S.'s legs forward. Her knees came to rest on either side of her head. Defendant pinned A.S. on the sleeper sofa by placing his shoulders against the back of A.S.'s knees and holding her legs. A.S. testified that being placed in this position hurt. Although she pushed against defendant's head, forehead, and shoulders, A.S. could not free herself. Defendant inserted his tongue into A.S.'s vagina. A.S. testified she did not give him permission to do so.

After defendant released her, A.S. again attempted to wake McGowan. A.S. testified that she "started poking [McGowan] and moving her." McGowan raised her head. A.S. shook McGowan. McGowan's eyes appeared "glassy and she looked like she wasn't there." After a "couple of ...


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