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The People of the State of Illinois v. Elwyn Vaughan Thomas

August 10, 2011

THE PEOPLE OF THE STATE OF ILLINOIS,
PLAINTIFF-APPELLEE,
v.
ELWYN VAUGHAN THOMAS,
DEFENDANT-APPELLANT.



Appeal from Circuit Court of Woodford County No. 06CF117 Honorable John B. Huschen, Judge Presiding.

PRESIDING JUSTICE KNECHT delivered the judgment of the court, with opinion.

Justices Steigmann and Pope concurred in the judgment and opinion.

OPINION

¶ 1 Defendant, Elwyn V. Thomas, appeals his May 2009conviction by jury for criminal sexual assault (720 ILCS 5/12--13(a)(4) (West 2006)). In July 2009, the trial court sentenced defendant to five years in prison. Defendant argues the trial court erroneously took judicial notice of and read to the jury the following facts: he failed to appear for his final pretrial hearing in November 2006, a warrant was issued for his arrest, and he was arrested in California in January 2009 trying to enter the country from Mexico and extradited to Illinois. We affirm.

¶ 2 I. BACKGROUND

¶ 3 In August 2006, defendant was charged with the August 13, 2006, aggravated criminal sexual abuse of J.P., his stepdaughter, by digital penetration of her vagina, a Class 2 felony (720 ILCS 5/12--16(d) (West 2006)). In November 2006, defendant failed to appear for the final pretrial hearing, and the trial court issued a warrant for his arrest.

¶ 4 In January 2009, the United States Department of Justice arrested defendant as he attempted to enter California from Mexico. He was extradited to Woodford County in April 2009. In May 2009, the State indicted defendant on additional charges: two charges of criminal sexual assault, Class 1 felonies (720 ILCS 5/12--13(a)(4), (a)(3) (West 2006)), based on the same August 13, 2006, digital penetration of J.P.

¶ 5 That same month, a jury trial was held. J.P., born June 21, 1992, testified she believed defendant was 31 years old in August 2006. Defendant, who was from Wales, was her stepfather. J.P.'s mother married defendant when J.P. was 11. J.P.'s mother was dying of lung cancer and taking medication on the date of the charged events. J.P.'s mother died on August 23, 2006, 10 days after the crimes allegedly occurred.

¶ 6 J.P. testified, on the evening of August 12, 2006, she was at home playing on the computer. Defendant's friend, Aaron McCarty, was at the house in another room. At some point, defendant entered the room where J.P. was on the computer and told her to go to bed or "socialize." J.P. turned off the computer and went into the "bar room" where defendant and McCarty were playing pool and drinking. At some point, J.P.'s brother arrived. Defendant had J.P. try some different kinds of alcohol. She believed she drank Bacardi Silver as well as two types of Mad Dog 20/20. J.P. did not like the drinks.

¶ 7 Around midnight, they stopped playing pool and began playing a card game, 21. The person whose cards were closest to 21 would take a double shot of Mad Dog. J.P. believed she won seven times; her brother won twice. They played the game less than an hour.

¶ 8 After playing the game, J.P. attempted to play pool with McCarty and defendant.

She could not stand without help. She began feeling fuzzy and could not speak properly. At that time, J.P. was around 4 feet10 inches or 4 feet 11 inches tall and weighed less than 100 pounds. McCarty tried to hold her up while she played pool.

¶ 9 J.P. testified at some point in the night her clothing was wet. There was a swimming pool at her house, but she did not remember getting into it. She went upstairs and changed into her pajamas. After changing into her pajamas, she went downstairs. She believed she fell because she was on the floor between the barroom and her mother's room. Defendant brought her a pillow, and McCarty began rubbing her back, under her shirt. At some point, McCarty undid J.P.'s bra and continued rubbing her back. This lasted approximately five minutes. J.P. did not see defendant during this time.

¶ 10 Defendant asked J.P. if she liked the back rub. J.P. did not respond. McCarty and defendant walked out of the room. J.P. stood up and felt dizzy. She walked out the front door onto the porch, where McCarty and defendant were. Defendant stood on the porch; McCarty was standing two steps down. J.P. stood between them. McCarty then put his hand up J.P.'s shirt and under her bra. Defendant then put his hand down the back of J.P.'s pants and her underwear and put his fingers inside J.P.'s vagina. While touching J.P., defendant and McCarty continued talking.

¶ 11 After the men stopped, J.P. went to her room, but she did not remember walking there. She laid in her bed with the light on and facing the wall. She was not feeling well. She felt confused. At some point, defendant entered her room. J.P. vomited. She laid back down and faced the wall. Defendant "got on [her] bed behind" J.P. and started whispering, "[P]lease say yes, [J.P.] [P]lease say yes." Defendant said this to J.P. at least 10 times. Defendant left the room. J.P. then called 9-1-1.

ΒΆ 12 On cross-examination, J.P. testified defendant acted as a parent figure in the house and set and enforced rules. J.P. testified "[h]e used to smack my butt and stuff." J.P. did not have a good relationship with defendant before this event, and she admitted she hated him. On redirect examination, J.P. asserted she was not making up these ...


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