Appeal from the Circuit Court of Winnebago County. No. 99-CF-1736 Honorable Kathryn E. Zenoff, Judge, Presiding.
The opinion of the court was delivered by: Justice McLAREN
Released for publication August 29, 2002
Defendant, James K. Santos, appeals his conviction of the offense of aggravated criminal sexual abuse in that he, over 17 years of age, penetrated the vagina of the victim, T.K., at least age 13 but less than 17 years old, with his penis, and he was at least 5 years older than the victim. 720 ILCS 5/12-16(c) (West 1998). We reverse and remand.
The charges against defendant arise from an incident that occurred during the early morning hours of May 9, 1999. At this time, defendant is alleged to have penetrated the vagina of T.K., who was between the ages of 13 and 17, while he was over 17 years of age and at least 5 years older than T.K. In his defense, defendant asserted that, while having sexual intercourse with T.K., she told him for the first time that she was 16 years old, at which time he immediately ceased the sexual activity.
Prior to trial, defendant filed a motion in limine seeking permission to cross-examine the victim regarding inconsistent statements she made during the investigation. The motion asserted that T.K. submitted to a rape kit and denied to hospital personnel any sexual activity within 72 hours of the alleged assault. After it was determined that seminal fluid and pubic hair were found in T.K.'s underwear, she admitted to police that she had had a sexual encounter with a third party within 72 hours of the alleged assault. Defendant sought to introduce evidence of T.K.'s contradictory statements to impugn her credibility. In response, the State filed a motion in limine to prohibit defendant from making any reference to T.K.'s past sexual activity or reputation pursuant to the rape shield statute. 725 ILCS 5/115--7(a) (West 1998).
The trial court ruled that the rape shield statute prohibited the admission of the evidence proposed by defendant. Defendant was prohibited from cross-examining the victim concerning the inconsistent statements she made to hospital personnel and the police.
The State's main witness was the victim, T.K. On May 9, 1999, she was 16 years old. On May 8, 1999, she purchased a fifth or a half-gallon of vodka and arrived at the home of Jason Ganus at 7 or 8 p.m. T.K. consumed vodka and orange juice with friends for one or two hours. The group left the Ganus home when Jason's parents intervened.
T.K. and a female friend walked to the home of Angie Enna, a 25-year-old woman who lived in a housing complex known as the Fairgrounds. There were several other persons present, including defendant. T.K. accompanied defendant to a liquor store, where they obtained more alcohol.
The group returned to the party and consumed more alcohol. When defendant asked T.K. her age, she stated that she was 16. T.K. and defendant drove around Rockford for four or five hours in defendant's car. They pulled into a driveway of a home in a residential area and began to kiss. T.K. informed defendant that she wanted to go back to the party because she did not feel well. Defendant and T.K. began to drive around in defendant's car, and defendant pulled into a parking lot.
Defendant began to kiss T.K. When T.K. stated that she did not want to kiss, defendant grabbed her shoulder and "yanked" her from the passenger seat into the backseat. Defendant grabbed her arms and tried to kiss her. When she protested, defendant said that he thought she "wanted this" and pulled her pants down.
T.K. screamed as defendant removed her pants and underwear. He thrust his fingers inside of her vagina. He removed his own pants and attempted to place his penis inside her vagina. When defendant placed his penis into T.K.'s vagina, she pushed him off her. They returned to the front seat, got dressed, and drove to an Amoco gas station, where T.K. threw up. Defendant washed his car, and he and T.K. returned to the party at the Fairgrounds. T.K. did not report the attack to anyone at the Amoco station, call for help, or attempt to flee the scene.
T.K. was examined in the Rockford Memorial Hospital emergency room by Chrislyn Senneff, R.N., and Dr. Aldred. Nurse Senneff observed an abrasion to T.K.'s cheek that appeared to be new and an abrasion to her buttocks. She did not note any vaginal lacerations. T.K. told nurse Senneff that defendant penetrated her rectum with his fingers.
America Smith testified that she was "hanging out" at the Fairgrounds party. When America and her boyfriend, Joe Ferguson, went to a gas station at midnight, T.K. was sitting in defendant's car listening to the radio. At approximately 5 a.m., America was awakened when T.K. and defendant returned to the party. T.K. was crying. T.K. told America and a friend, Tiffany Reaves, that she had been raped.
Rockford police officer Rose Mary Mathews testified that she was called to the Rockford Memorial emergency room on May 9, 1999, regarding a sexual assault. Mathews took photographs of a scratch on T.K.'s jaw.
Officer Walter Felton of the Rockford police department testified that he spoke to defendant on May 18, 1999. Defendant told Officer Felton that T.K. informed him she was 18 years old on the night in question. While they were engaged in sexual intercourse, T.K. told ...