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01/16/98 PEOPLE STATE ILLINOIS v. GARY D. ELAM

January 16, 1998

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
GARY D. ELAM, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Pope County. No. 94-CF-10. Honorable Donald Lowery, Judge, presiding.

As Revised January 21, 1998.

Honorable Richard P. Goldenhersh, J., Honorable Charles W. Chapman, J., and Honorable Gordon E. Maag, J., Concur. Justice Goldenhersh delivered the opinion of the court.

The opinion of the court was delivered by: Goldenhersh

The Honorable Justice GOLDENHERSH delivered the opinion of the court:

Following a bench trial, defendant, Gary D. Elam, was found guilty but mentally ill of home invasion, attempted kidnaping, and aggravated criminal sexual assault. Defendant was sentenced to the Illinois Department of Corrections for a term of 20 years' incarceration for home invasion, to be served concurrently with a term of 15 years' incarceration for attempted kidnaping, and these terms were ordered to be served consecutively to a term of 20 years' incarceration for aggravated criminal sexual assault. Defendant appeals, contending that (1) trial counsel was ineffective in presenting the defense of guilty but mentally ill and (2) consecutive terms of imprisonment totaling 40 years were excessive in light of defendant's criminal and mental histories and rehabilitation potential. We affirm.

I

On May 23, 1994, defendant was charged by amended information with committing a home invasion in violation of section 12-11(a)(1) of the Criminal Code of 1961 (720 ILCS 5/12-11(a)(1) (West 1992)), armed violence (720 ILCS 5/33A-2 (West 1992)), aggravated criminal sexual assault (720 ILCS 5/12-14(a)(1) (West 1992)), residential burglary (720 ILCS 5/19-3(a) (West 1992)), attempted kidnaping (720 ILCS 5/8-4(a) (West 1992)), and battery (720 ILCS 5/12-3(a)(2) (West 1992)).

The event giving rise to these charges occurred on April 29, 1994, when defendant unlawfully entered the home of the victim, displayed a knife, and sexually assaulted her.

The victim testified that on April 29, 1994, she returned home after 7 a.m., having worked a night shift at a nursing home. Upon returning home, the victim bathed, set her alarm clock, and went to bed attired in some underpants. She fell asleep. Some time later, someone entered her home. The victim thought it was her mother, who was coming to pick up some keys. The victim later discovered that it was defendant who had entered her home. The victim testified that she had never seen defendant prior to the day of the incident. Defendant wore jeans, a T-shirt, a bandanna, and a belt with a brown case for a knife.

Defendant tried to pull the bedsheet down, but the victim held on to the sheet, asking defendant what he wanted. He informed the victim that he would not hurt her if she were calm but if she fought him, he would kill her. At that point, defendant began hitting the victim and pulled the sheet down. Defendant straddled the victim while still hitting her. The victim testified that she heard the sound of a snap being released and saw defendant lay down a knife. The victim opined that it was a hunting knife about 12 inches long. The victim stated that defendant laid the knife down as he knelt to kiss her breast. The victim pushed a pillow or a part of the bedspread over the knife.

Subsequently, the victim's vision became blurred from defendant's blows to her head, so she stopped fighting and defendant removed her underpants. The victim told defendant she was menstruating. Defendant removed the tampon. The victim again began to struggle with defendant as he pulled her off the bed, turned her sideways on the bed, and unzipped his pants. Defendant tried to insert his penis into the victim's vagina. When his penis made contact with her vagina, she scratched him and started fighting with defendant. Defendant fought with the victim on the bed and then got up and told the victim that she was going with him for a couple of days. Defendant threw a pair of jeans and a sweatshirt at the victim, and she put them on. Defendant allowed the victim to wash her face and, restraining her by the neck and waist, led her through the trailer to the outside steps. As they stepped outside, the victim asked defendant to permit her to go back in to get her purse. Upon her return, the victim broke free from defendant and swung her purse at him. Defendant grabbed the victim around the waist, lifting her up as he attempted to force her into the car. The victim kept kicking the car door shut. Defendant then took the victim back inside the trailer and began hitting her, telling her he had warned her of what would happen if she fought back.

At that point, the victim's mother came to the trailer. The victim's mother testified that she heard her daughter screaming and crying. She saw defendant on top of the victim, choking and hitting her. The victim was struggling to break free from defendant. The victim's mother tried to grab defendant's arms, attempting to separate the victim from defendant. Defendant shoved the victim's mother and told her to get out because it was none of her business. The victim's mother and the victim continued to struggle with defendant. The victim eventually broke free. Defendant fled from the residence and left in his car. the victim's mother described the car as a greenish-gray sedan with an antenna for a radio or CB. The victim's mother tried to read the license plate number on defendant's car and called the Pope County Sheriff.

Bobby Hahn, a neighbor, observed a bluish-gray Chevrolet Cavalier car leaving the victim's driveway on the morning of the attack. Hahn was able to see the driver as the man backed out of the driveway. At trial, Hahn identified defendant as that man.

Illinois State Police Trooper Terry Rochford investigated the April 29, 1994, incident at the victim's residence. Rochford interviewed the victim and recovered physical evidence at the scene, which included a brown electrical cord, a tampon, a knife, a bandanna, a pillowcase, sheets, and a comforter. Forensic reports indicated that one red ...


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