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People v. Ware

May 22, 2001

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
MARVIN WARE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County No. 98 CR 24643 The Honorable William P. Prendergast, Judge Presiding.

The opinion of the court was delivered by: Justice Cousins

Not Released For Publication

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
MARVIN WARE, DEFENDANT-APPELLANT.

Appeal from the Circuit Court of Cook County No. 98 CR 24643 The Honorable William P. Prendergast, Judge Presiding.

The opinion of the court was delivered by: Justice Cousins

Following a bench trial, defendant Marvin Ware was convicted of aggravated criminal sexual assault and was sentenced to natural life in prison. On appeal, defendant argues that: (1) he was denied a fair trial when the trial court improperly admitted prior consistent statements; (2) his convictions should be reduced to criminal sexual assault; and (3) his natural life sentence was based on an unconstitutional statute under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).

 BACKGROUND

Defendant was indicted on 10 counts, 3 of which were nol-prossed by the State before trial. The remaining counts included: two counts of aggravated criminal sexual assault, one count of criminal sexual assault, two counts of kidnaping, one count of aggravated criminal sexual abuse, and one count of unlawful restraint.

At the bench trial, C.K. testified that on August 19, 1998, around 5 p.m., she was on her way from work. She decided to stop by Bruegger's Bagel Baker, where she had previously worked, to visit former co-workers. She entered through the front of the store and saw one former co-worker at the register helping customers. C.K. also saw the defendant putting a new bag on the garbage can. C.K. and defendant had previously worked together about five times. After saying "hi" to them both, C.K. began talking to defendant about her new job. As they talked, C.K. began walking down a long hallway toward the back door with defendant following behind her. She walked past the women's washroom and said that she was going home. As C.K. stood in front of the men's washroom, the defendant grabbed her arm and pulled her into the men's washroom.

C.K. stated that she was surprised and shocked. Defendant turned off the lights in the bathroom, locked the door, and pinned C.K. against the wall with her arms behind her back. C.K. tried to say "no" and "stop" but defendant had his tongue in her mouth or covered her mouth with his hand. C.K. tried to push defendant off with her body but failed.

Defendant fondled C.K.'s breasts from outside of her clothing. Defendant said, "Don't worry, I'm not going to come in you." At this point, C.K. stated that she believed that she "was being raped." Defendant unbuckled C.K.'s pants and pulled her pants and underwear down to her knees. He then unzipped his own pants and pulled out his penis. C.K. felt defendant insert his penis inside her vagina and move back and forth. After a couple of minutes, defendant suddenly pulled back and said, "Oh, shit." Defendant had ejaculated a little bit on the floor, so he turned on the light, grabbed some toilet paper and finished ejaculating into the toilet paper.

Defendant then exited the bathroom. C.K. pulled up her pants and also left the bathroom. She saw the defendant standing with his back to her holding a mop bucket in his hand. C.K. left out the back door and went home. C.K. told a houseguest that something was wrong and to call her mother. C.K.'s mother came home and took C.K. upstairs. C.K. told her mother that she had been raped. Her mother would not let C.K. shower or change clothes and took her to the emergency room. At the hospital, C.K. completed a sexual assault kit. She testified that she had not had sex with anyone within 72 hours of the incident and was not sure whether defendant had ejaculated inside of her.

Nurse Delores Armstrong testified that she tended to C.K. on August 19, 1998. The physical exam revealed no vaginal trauma. Armstrong indicated it was not unusual that no vaginal trauma occurred during the rape. The vaginal and oral swabs from the sexual assault kit contained no evidence of semen. Examination by the Illinois State Police found semen on the crotch area of C.K.'s panties, though no sperm was detected and no DNA other than C.K.'s was found.

Sergeant Bruce Higgins of the Chicago police department interviewed C.K. at the hospital. He stated that C.K. appeared visibly shaken and upset and had to stop a couple of times as she threw up in a waste paper basket. She identified the perpetrator as a former co-worker and indicated his first name. Higgins then proceeded to the men's bathroom of the bagel store. He testified that it was spotless, as though it had just been cleaned. The garbage can was empty and the floors were clean. Higgins checked the women's washroom and found the sink and toilet to be functioning. The police checked nine bags of garbage and recovered a large wad of toilet paper which was analyzed and found to contain no evidence of semen. Higgins obtained defendant's name and address and proceeded to his residence.

Defendant was arrested on August 20, 1998, around 1:30 a.m. Higgins interviewed defendant later that day. Defendant told Higgins that he first noticed C.K. in the bagel store when he opened the men's washroom door to clean it. Defendant said to C.K., "You know, why don't you use the women's washroom and get out of here?" He left her to do some other cleaning and when he came back, he found C.K. still inside the men's washroom. He yelled at her to leave and C.K. exited through the back door. When Higgins asked defendant why C.K. was in the men's washroom, defendant stated that he did not know. Following the interview, C.K. picked defendant out of a lineup at the police station.

C.K.'s mother, Dickalon Kehrein, testified that she received a call from her houseguest on August 19, 1998, around 6 p.m. Ms. Kehrein went home immediately and found C.K. crying in the living room. She observed that C.K.'s face was red, her eyes were puffy and she was shaking. Ms. Kehrein testified that C.K. told her that she had been raped on her way home from work. Ms. Kehrein stated that C.K. said it occurred at Bruegger's Bagels where she used to work and that her attacker was a former co-worker named Marvin. Ms. Kehrein then told C.K. that she should not shower and took her to the hospital.

Defendant was found guilty of two counts of aggravated criminal sexual assault predicated on unlawful restraint and kidnaping. The court indicated that while the defendant was also guilty of the other charges against him, they merged into these two counts. At the sentencing hearing, the State introduced evidence of defendant's prior conviction for aggravated ...


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