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People v. Conerty

May 18, 1998

THE PEOPLE OF THE STATE OF ILLINOIS PLAINTIFF-APPELLEE,
v.
BRIAN P. CONERTY, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Macon County No. 96CF940 Honorable John L. Davis, judge Presiding.

The opinion of the court was delivered by: Justice McCULLOUGH

Following a bench trial, defendant was convicted of one count of aggravated criminal sexual assault (720 ILCS 5/12-14(a)(4) (West 1994)) and one count of home invasion (720 ILCS 5/12-11 (West 1994)). He was sentenced to consecutive 10-year terms of imprisonment for each count. Defendant appeals, alleging (1) he was not proved guilty beyond a reasonable doubt; (2) the court erred in not admitting evidence respecting the shoe size of the footprints found at the scene of the crime; and (3) the court erred in imposing a consecutive sentence for home invasion because it constitutes an included offense of aggravated criminal sexual assault.

The victim testified that she had purchased and moved into the residence at 1431 West Decatur Street on June 30, 1994. During the early morning hours of July 29, 1994, she awoke to see the shape of a man standing at the foot of her bed. She described him as at least 6 feet tall, broad shouldered and muscular, like a football player. His hair was relatively short because she could see his neck, and although she could not see his face, she got the impression he was Caucasian. The attacker turned her facedown on the bed, lay on top of her, and penetrated her vagina with his finger. He told her he would not hurt her if she was quiet and that he had a gun. After the attacker left, the victim called the police.

When the police arrived, they determined the man had entered the house through an open kitchen window. A screen that had been in the window was lying on the ground. It had two slits cut into the bottom corners to enable fingers to reach inside and latch the screen. At defendant's trial in August 1997, a right and a left thumbprint lifted from the outer bottom edge of the screen were identified as belonging to the defendant.

The victim testified that she could not identify the defendant as the person who was in her house on July 29, 1994, but that she had viewed a lineup and identified the defendant as having the same build, size, and hair consistency as the man whose silhouette she saw the night of the offense. She identified the defendant as the person she had picked out of the lineup.

Tina Lemna testified that she and her husband had lived in the house at 1431 West Decatur Street from December 1990 until nine months before its sale on June 30, 1994. Lemna stated that she had never seen the defendant before and could think of no reason why he would have been at her house when she lived there.

Jeff McGlasson testified that he had known the defendant for approximately 10 years. Although he had never lived at 1431 West Decatur Street, he had frequently visited his friend, Scott Harrison, who had lived there about seven years earlier. McGlasson testified that the defendant lived a few houses down the street from Harrison's residence and could have been at the house when Harrison owned it, but he had no specific memory of the defendant ever being there.

David Dickerson, an officer with the Decatur police department, testified that after he had received a match on the fingerprints in the case, he had interviewed the defendant in August 1996. The defendant was 6 feet 1 inch tall and 220 pounds at the time of the interview. When informed that his fingerprints had been found at the scene, the defendant stated that he had been in the house when his friend Jeff McGlasson lived there three or four years earlier. The defendant denied that he had ever stood outside the kitchen window or been around the window at all. The defendant had no explanation for the presence of his fingerprints on the outside of the kitchen screen. The defendant did not know Tim or Tina Lemna or Scott Harrison.

The State also presented the testimony of Officer Frank Hubbard, Greg Spain, Roger Ryan, David Dickerson, and a Macon County jail correctional officer.

Officer Greg Spain testified for the defendant. He stated that he had attempted to lift electrostatic shoe impressions from the scene and had found one on the counter and two on the linoleum floor. All the impressions were very light. Each of the prints bore a "Nike" impression and one of the prints from the floor measured approximately 10 inches in length. Officer Spain stated that he was not a shoe print comparison expert and the Nike brand was popular. He did not know whether each of the three prints was made from the same shoe.

The defendant also called Brian Raupp, who had been a shoe salesman for 17 years. Raupp stated that a 10-inch foot equated to a size 8 shoe. After measuring defendant's foot, Raupp determined that defendant wore a size 13 shoe, which would be about 11 3/4 inches long, although that measurement would depend upon the construction of the shoe. Raupp admitted that he was not an expert in the identification of shoe prints and that there were hundreds of models of Nike brand shoes.

Defendant's father testified he had lived at 1475 West Decatur Street for 27 years. For most of that time defendant lived with him, except from 1992 to July 1, 1994, when defendant had been discharged from the Navy. He had bought the defendant two pair of size 12 "Etonic" tennis shoes.

Laura Harrison testified that she had formerly lived at 1431 West Decatur Street from 1985 to 1990. She said Jeff McGlasson had been a frequent visitor but she did not know the defendant and had never before seen him.

Defendant then testified that he had never molested the victim or owned a pair of Nike shoes. He said he wore a size 13 shoe. He stated that when he was home on leave from the Navy he went to the house at 1431 ...


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