Appeal from Circuit Court of Macon County- No. 00CF571 Honorable Timothy J. Steadman, Judge Presiding.
The opinion of the court was delivered by: Justice Myerscough
In August 2000, a jury convicted defendant, Andrew L. Anderson, of three counts of aggravated criminal sexual assault. 720 ILCS 5/12-14(a)(2) (West 2000). In October 2000, the trial court sentenced defendant to three consecutive 15-year prison terms. In November 2000, defendant filed a motion to reconsider which the trial court denied after hearing. Defendant appeals, arguing that (1) the trial court erred in granting the State's motion in limine; (2) the evidence failed to show defendant guilty beyond a reasonable doubt of three separate acts of aggravated criminal sexual assault; (3) reversible error occurred when Officer Hubbard testified that defendant came to mind after he was given a description of the suspect; (4) the trial court erred in failing to give Illinois Pattern Jury Instruction, Criminal, No. 2.02 (4th ed. 2000) (hereinafter IPI Criminal 4th) prior to the jury commencing deliberations; (5) the trial court abused its discretion in sentencing defendant; and (6)(a) section 5-8-4(a) of the Unified Code of Corrections (Unified Code) (730 ILCS 5/5-8-4(a) (West 2000)) violates the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, §11), and (b) the issue that triggered the mandatory consecutive sentences pursuant to section 5-8- 4(a) of the Unified Code should have been submitted to the trier of fact and proved beyond a reasonable doubt. We affirm.
In April 2000, the State charged defendant, by information, with home invasion (count 1) (720 ILCS 5/12-11 (West 2000) (effective until June 1, 2001)) and three counts of aggravated criminal sexual assault(counts II through IV)(720 ILCS 5/12-14(a)(2) (West 2000)). In relevant part, the State alleged that defendant by the use of force (1) placed his penis against the victim's (a) vagina (count II), (b) anus (count III), and (3) placed his fingers in the victim's vagina (count IV). In June 2000, defendant indicated that he would use the defense of voluntary intoxication and that he might call Dr. Georgia Cuddeback as an expert witness. Cuddeback stated in a letter that it was her opinion that defendant was unable to form the specific intent to perform the alleged offense because of the beer and cocaine defendant consumed on the night of the incident.
In August 2000, the State moved to dismiss the home invasion count (count I) and filed a motion in limine seeking to prohibit the defense from introducing any evidence concerning the defense of voluntary intoxication. The State argued that aggravated criminal sexual assault was a general intent crime, and the affirmative defense of voluntary intoxication was not available for general intent crimes. After hearing argument, the trial court granted the State's motion. The trial court then conducted a two-day jury trial.
L.J., the victim, testified that she was married to a pastor with the First General Baptist Church and lived at 1505 West Decatur. On the night of the incident, she was home alone and went to bed at approximately 11:30 p.m. She fell asleep and was semi-awakened by two flashes of a lighter in the doorway of her bedroom. She did not fully wake up because she assumed it was her husband returning home from work.
A man came over to the bed and lay down on the other side. The man rolled over next to her and began rubbing her body all over--rubbing up and down her legs and under her shirt. At that point, she realized it was not her husband. She told the man that he had the wrong house and told him to get out of the house. The defendant then got on top of her. She was able to see the man and identified defendant as this man.
While defendant was on top of her, she grabbed the cordless phone from the nightstand. Defendant tried to kiss her. She turned away, and he began to lick her face and ears and kiss her neck. She tried to use the phone, but defendant took and threw the phone on the floor. She then tried to knee him in the groin. He held her legs down with his legs, and she tried to break his nose. She knocked off his glasses so she could poke out his eyes. He was holding her down and trying to pull down her sweatpants. She tried to wiggle out from under him to get to the phone on the floor. He pulled her on top of him, turned her over on top of him, held onto her, and tried to undo his pants. He unbuckled his pants. The two struggled and fell to the floor. He kept trying to pull down her pants. He pulled her pants down to her knees and tried to guide his penis into her vagina. She testified that he had his penis on her vagina. She told him that she had acquired immunodeficiency syndrome (AIDS), that no one would have anything to do with her, and she could not believe he was doing this.
She testified that these statements stopped him. He then started inserting his fingers into her vagina and "was going down like he was going to perform oral sex on me." At that point she finally got the phone, turned it on, and began singing to him "Jesus Loves Me." She testified that she began singing "because I didn't know what else to do, because I thought it was *** going to happen. I thought that he was going *** to rape me."
He stopped, asked her what she was doing, and saw that she had the phone. He took the phone and threw it under the bed. She then asked if they could get back on the bed. He pulled her up on the bed, which enabled her to pull up her sweatpants. She yelled, "Fire! Help! There's a fire!" Defendant started hitting the victim and told her to shut up. He hit her on the face and told her not to yell again. She yelled again, and he hit her again. He tried to pull down her sweatpants again and became angry and frustrated. Defendant then took her and turned her over onto her stomach. As he turned her over, he pulled her sweatpants and underwear off and threw them off the bed. He kept his hand under her and pulled her up by the buttocks so that she was on her knees and attempted to insert his penis into her anus. She felt him touch her anus with his penis. At that time, her husband arrived home.
She testified that defendant did not have an erection, but that his penis did come into contact with her vagina and anus. She admitted that she spoke with Michael Beck, a detective with the Decatur police department (department), the following day and told Beck that defendant was "rubbing his penis on [her] bottom." She testified, though, that when she used the term "bottom", she was referring to her anus.
The victim's husband testified that when he returned home, he heard noises upstairs. He ran upstairs and struggled with the intruder. During the struggle, the intruder repeatedly stated that he had the wrong house. The victim's husband told defendant to leave. He identified defendant as the intruder.
Steve Hagemeyer, a police officer with the Department, testified that he responded and went to the victim's house and spoke with the victim and her husband. He testified that the victim had swelling on her forehead, on the left side of her face, and a cut on her hand.
Frank Hubbard, a detective with the Department, testified that he has been with the department for 10 1/2 years and assigned to the detective division for 4 1/2 years. He testified that he was working on the night of the incident when he was informed of a sexual assault in the 1500 block of West Decatur. Hubbard testified that he lives in the west end and was familiar with several individuals from that area. When given a description of the suspect, Hubbard immediately thought of defendant.
The defense objected and, outside the presence of the jury, moved for a mistrial. The defense argued that because Hubbard was a police officer and indicated that he knew the defendant, Hubbard, in essence, suggested to the jury that defendant had prior contacts with law enforcement, which was highly prejudicial to defendant. The State argued that simply because an officer might know someone by description does not imply that person has a criminal background. The trial court denied the motion, stating:
"[o]nly thing the witness indicated thus far was that he resides in this particular area of Decatur, that he was familiar with others who reside in the area, that he received this description, and he believed that the defendant fits that description.
There was no indication whatsoever that this knowledge was acquired by way of his employment as a police officer, but rather as a resident of the west end of Decatur."
The jury returned and Hubbard continued to testify. He testified that he went to defendant's home, where he found him.
Beck testified that he interviewed the victim at the hospital. He observed that she had swelling to the left side of her face and swelling behind her left ear. She had a slight cut to the right side of her head and two lacerations to her right hand, one that required seven stitches.
Beck testified further that he also interviewed defendant. Defendant told Beck that he entered the victim's home believing no one lived there. He went upstairs, entered the bedroom, and saw a woman lying on the bed. He got in bed with the woman and began kissing her and fondling her breasts. He believed that he had sexual intercourse with her; however, he did not ejaculate. He believed he performed the sex act "doggy style." In addition, defendant gave a written statement indicating that he went to a sports bar and drank approximately 15 beers. He left the bar, bought "some crack, and smoked that." He also stated:
"I went inside the house and went upstairs. There was a girl laying [sic] on the bed, and I got into bed with her. We started fighting. I tried to have sex with her. I think I had sexual intercourse with her.
*** [G]irl's *** husband came home. We started fighting. I got up and went home. I know this situation is all my fault. She had nothing to do with it. I hope I didn't hurt her or her husband. This was one of these nights you wish you could have back, and something like this never happened."
On cross-examination, Beck admitted that defendant never stated that he had inserted any of his fingers into the victim's vagina or his penis in her anus. On redirect, Beck testified that he did not specifically ask defendant those questions.
The State rested. Defendant moved for a directed verdict, which the trial court denied. Defendant then took the stand and testified. His testimony was generally similar to his written statement. Defendant testified that he placed his penis against the victim's vagina. He attempted to place it in her vagina, but he did not have an erection. He denied that he placed any of his fingers in her vagina and denied penile contact with her anus. The defense rested and moved for a directed verdict at the close of all the evidence, which the trial court denied.
The trial court conducted an instructions conference. The parties gave closing arguments, and the trial court read the jury instructions. The jury went to the jury room to deliberate. After approximately 10 minutes, the trial court pointed out that IPI Criminal 4th No. 2.02 had not been given, which reads:
"The charge against the defendant in this case is contained in a document called the information. This document is the formal method of charging the defendant and placing the defendant on trial. It is not any evidence against the defendant."
Defense counsel moved for a mistrial. The trial court denied the motion, noting that the jury had been in the jury room for only about 10 minutes and had not yet received any written copies of the jury instructions or exhibits. The trial court called the jury back to the courtroom. The court explained ...