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03/05/98 PEOPLE STATE ILLINOIS v. LONNIE RAY KINNEY

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
LONNIE RAY KINNEY, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Champaign County No. 95CF1332 Honorable John R. DeLaMar, judge Presiding.

The opinion of the court was delivered by: Justice Cook delivered the opinion of the court:

Defendant Lonnie Ray Kinney was charged with three counts of aggravated criminal sexual assault for allegedly committing three acts of forcible sexual intercourse against A.B. in the early hours of August 26, 1995. 720 ILCS 5/12-14(a)(2) (West 1994). Defendant admitted having sex with A.B. at that time but denied using force. The central issue at trial was whether A.B. consented to having sex with defendant.

A.B. testified she met defendant at the Edsel bar in Champaign on the night of August 25, 1995, and had a few drinks with him. From there, A.B. and defendant decided to go for a ride in defendant's car. They drove to Hessel Park, parked the car, and walked through the park. The two sat down on a picnic table and talked. Defendant kissed A.B., but she pushed him away and said she had to get back to her friends. She told defendant she was married and did not cheat on her husband. Defendant insisted that A.B. not go, and when she turned away he grabbed the right side of her dress, ripping it. Defendant pushed A.B. back onto the picnic table, pulled down her dress and bra, and began squeezing her breasts. Defendant was kissing A.B. and pulled off her panties and hose. Defendant placed his fingers in A.B.'s vagina and anus, "telling me to shut up because I was trying to push him off of me." Defendant penetrated her vagina, her anus, and then her vagina again. During the vaginal penetration, A.B. tried to push defendant off her, unsuccessfully, because defendant is 6 feet 3 inches or 6 feet 4 inches and weighs about 260 pounds. The anal penetration hurt so much that A.B. was screaming for defendant to stop. A.B. testified her dress was torn, her anus was bleeding badly, and she had pains in her abdominal area, bruises on her breasts, and a scrape on her face from when defendant held her head down on the picnic table. A.B. got back into the car with defendant and he drove her back to the Edsel. She testified that she got back in the car with defendant because her purse was in the car and she was afraid if she tried to run or get away, defendant would pursue her and hurt her again. Defendant dropped A.B. off by the dumpsters at the Edsel at about 12:50 a.m. She went back inside the Edsel and found her friend, Martha. Martha testified A.B.'s hair looked a mess, she had been crying, her dress was torn, and she had a red mark on her cheek. A.B. did not tell Martha or anyone about the rape until the next morning when she told Martha over the telephone. Two days later, A.B. called the "Rape Crisis Hot Line." She underwent a physical examination that evening, which revealed bruises on her breasts, a swollen and reddened labia, and two small tears on her rectum that were consistent with anal intercourse.

Defendant denied raping A.B. He claimed they drove to the park and walked to the picnic table. At the picnic table, A.B. performed oral sex on defendant. After that, defendant contends they had consensual vaginal intercourse. A.B. then performed oral sex on defendant again. After they were finished, they dressed and got back into defendant's car. Defendant drove A.B. to her car at the Mobile Super Pantry and dropped her off. Before she left, defendant got her phone number and kissed her good-bye.

When first questioned by police, defendant denied knowing A.B. or ever having sexual contact with anyone in Hessel Park. However, defendant later admitted to police that he knew A.B. and said he had consensual sex with her at Hessel Park. Defendant testified that he denied everything at first because he was in shock and nervous from being charged with such serious allegations.

Among the instructions given by the court were the following:

(1) The definitional instruction of "criminal sexual assault" provided:

"A person commits the offense of cri- minal sexual assault when he commits an act of sexual penetration upon the victim by the use of force or threat of force."

See Illinois Pattern Jury Instructions, Criminal, No. 11.55 (3d ed., 1992) (hereinafter IPI Criminal 3d).

(2) The instruction on the consent defense provided: "It is a defense to the charge of aggra- vated criminal sexual assault that [A.B.] consented."

See IPI Criminal 3d No. 11.63.

(3) The definitional instruction of "consent" provided:

"The word 'consent' means a freely given agreement to the act of sexual penetration in question. Lack of verbal or physical re- sistance or submission by the victim resulting from the use of force or threat of ...


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