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The People of the State v. Thomas A. Brown

February 11, 2013

THE PEOPLE OF THE STATE PLAINTIFF-APPELLEE,
v.
THOMAS A. BROWN, DEFENDANT-APPELLANT.



Appeal from the Circuit Court OF ILLINOIS, of McHenry County. No. 09-CF-609 Honorable Sharon L. Prather, Judge, Presiding.

The opinion of the court was delivered by: Justice Birkett

JUSTICE BIRKETT delivered the judgment of the court, with opinion. Justices McLaren and Jorgensen concurred in the judgment and opinion.

OPINION

¶ 1 Following a jury trial, defendant, Thomas A. Brown, was convicted of involuntary manslaughter (720 ILCS 5/9-3(a) (West 2008)) and aggravated criminal sexual assault (720 ILCS 5/12-14(a)(2) (West 2008)) (predicated upon criminal sexual assault (720 ILCS 5/12-13(a)(2) (West 2008)). He was sentenced to consecutive imprisonment terms of 5 years and 18 years, respectively. On appeal, defendant contends that the State failed to prove him guilty beyond a reasonable doubt of aggravated criminal sexual assault. For the reasons that follow, we affirm.

¶ 2 I. BACKGROUND

¶ 3 Defendant was charged by indictment with four counts of first-degree murder and one count of aggravated criminal sexual assault in connection with the June 9, 2009, beating death of V.W. In counts I and II the State alleged that defendant committed first-degree murder by knowing that his "acts created a strong probability of death or great bodily harm," in violation of section 9-1(a)(2) of the Criminal Code of 1961 (Code) (720 ILCS 5/9-1(a)(2) (West 2008)). The counts were identical, except that count II added an allegation that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty, in violation of section 5-5-3.2(b)(2) of the Unified Code of Corrections. 730 ILCS 5/5-5-3.2(b)(2) (West 2008).

¶ 4 In counts III and IV the State charged defendant with first-degree murder in that he caused the death of V.W. during the commission of a forcible felony, aggravated criminal sexual assault (720 ILCS 5/12-14(a)(1) (West 2008)), in violation of section 9-1(a)(3) of the Code. 720 ILCS 5/9-1(a)(3) (West 2008). Counts III and IV were also identical, except that in count IV the State again alleged the "exceptionally brutal or heinous" aggravating factor, under section 5-5-3.2(b)(2) of the Unified Code of Corrections. 730 ILCS 5/5-5-3.2(b)(2) (West 2008). In count V, which is the subject of this appeal, the State alleged that defendant committed aggravated criminal sexual assault in violation of section 12-14(a)(2) of the Code in that he, "while committing a criminal sexual assault, *** knowingly placed his penis in the vagina of V.W. knowing that V.W. could not give consent and during the act caused bodily harm to V.W."

¶ 5 On the day of trial the State nol-prossed counts III and IV. Defendant withdrew his defense of self-defense as to the first-degree murder charges and requested an instruction on the lesser offense of involuntary manslaughter, which was given without objection. Because defendant challenges the sufficiency of the evidence against him, a detailed summary of the evidence presented at trial is necessary.

¶ 6 The record reflects that defendant lived alone in a house he rented in Wonder Lake, Illinois. On the morning of June 9, 2009, at around 6 a.m., police and paramedics responded to a 911 call placed by defendant. Once they arrived at his home, defendant directed emergency personnel to a bedroom, where they found the victim, V.W., lying on the floor covered by a blanket. V.W. had been badly beaten about the head and body and was naked from the waist down. She was not breathing and she had no pulse. There was vomit present beside her and on the bed next to her. The bed was wet, indicating that V.W. had urinated. Efforts to revive V.W. were unsuccessful. There was no electrical activity found in her heart.

¶ 7 V.W.'s estranged husband, K.W., testified that he met V.W. while visiting the Philippines in 2001. The couple married in 2002 and had a son who was six years old at the time of the trial. K.W. and V.W. lived with their son in West Allis, Wisconsin, until May 2009, when V.W. filed for divorce and moved out of the marital home to live with defendant in Wonder Lake. V.W. would continue to visit the home so she could see her son. K.W. testified that he learned V.W. had a relationship with defendant and that he met defendant once when V.W. and defendant traveled to Wisconsin to visit V.W.'s son and take him to a sporting event.

¶ 8 K.W. testified that on June 8, 2009, V.W. visited her son in Wisconsin. After the visit, she left around 12:30 p.m. in a red Ford Focus. About 30 minutes later, K.W. received a telephone call from defendant, who was looking for V.W. K.W. told defendant that V.W. had already left. When defendant asked him where V.W. had gone, K.W. told defendant that he did not know her whereabouts.

¶ 9 Later that day V.W. returned to K.W.'s home and asked if she could come in to use the restroom. K.W. told her "no" but went outside to speak to V.W. for about five minutes. V.W. wanted to see her son again, but K.W. told her that the child was sleeping. According to K.W., V.W. did not exhibit any signs of using drugs or alcohol. She also had no injuries and did not complain of being hurt.

¶ 10 V.W. left K.W.'s home, and about 10:30 p.m. defendant called K.W. again. K.W. said that during the conversation defendant referred to V.W. as a "filthy whore" or "Asian slut." K.W. thought that defendant had been drinking, but he could understand defendant's speech. During the conversation defendant used "swear words" to describe V.W. On cross-examination, K.W. said that V.W. had been unfaithful to him and that she was doing the same thing to defendant. K.W. also said that when defendant called at 10:30 p.m., he told K.W. that he hoped V.W. did not come back to his home. V.W. did not tell K.W. where she was going when she left his house the second time that day.

¶ 11 The first police officer to speak to defendant was Deputy Calilyn Kelly of the McHenry County sheriff's office, who arrived at defendant's home in response to the 911 call. Kelly testified that when she arrived at defendant's home he was standing in the bedroom talking on his cell phone as paramedics worked on V.W. Kelly described defendant as very upset and speaking frantically. Defendant accompanied Kelly to the kitchen. Kelly asked defendant what had occurred and why defendant called 911. Defendant told Kelly that he awoke at 5:30 a.m. and went to the kitchen and had a beer. Defendant told Kelly that he then went back into the bedroom to wake V.W. Defendant said that he observed a thick drool coming down from V.W.'s nose and mouth. Defendant told Kelly that V.W. was unresponsive. He said he poked and shook V.W. a little bit and then called 911. Other officers arrived and Kelly's conversation with defendant ended.

¶ 12 Deputy Michael Urgo testified that he arrived at defendant's home at approximately 6:10 a.m. on July 9, 2009. He was in the kitchen with Kelly and Deputy Christopher Marvel, also of the McHenry County sheriff's office. Defendant was drinking a beer and speaking to the deputies. Urgo took over the interview. Defendant told Urgo that V.W. was his girlfriend. He said that, the day before, V.W. mentioned that she was going to visit her ex-husband or soon-to-be ex-husband and her son in Wisconsin. Defendant told Urgo that he expected V.W. to be back by 5:30 p.m. and that at 2:30 p.m. he placed a call to V.W.'s ex-husband, who told defendant that V.W. had been at his home but had been gone for awhile. Defendant said that V.W. did not return home until hours later and that he did not want her in his home any longer. Defendant said that he had locked her out of the residence. After V.W. returned, a verbal argument started through an open window. Defendant let V.W. inside, where the argument continued and eventually turned physical. When the physical argument subsided, he and V.W. had intercourse and then went to bed. Defendant said that he woke up to let the dog out. After he returned to the bedroom he noticed vomit and that V.W. was unresponsive, so he called the police.

¶ 13 Urgo next interviewed defendant's neighbor, Henry Mertz. Mertz testified that around 5:45 a.m. that morning he saw defendant leave his home, enter V.W.'s red vehicle, and leave the area. Mertz stated that the emergency vehicles arrived at defendant's home 10 to 20 minutes after defendant left and that by that time the red vehicle was back and parked in defendant's driveway. After speaking to Mertz, Urgo interviewed defendant again. Defendant told Urgo that when he woke up he found V.W. unresponsive. He then left the residence and went to get cigarettes. When he returned he again found V.W. unresponsive.

¶ 14 Marvel testified that he was one of the first responders to defendant's residence. Defendant was in the kitchen when Marvel arrived. Marvel and defendant were alone in the kitchen when the two had a conversation. Defendant told Marvel that, when he woke up, his girlfriend was lying "down next to him and she had puke coming from her mouth, so he contacted the police department." Marvel then drove defendant to the McHenry County sheriff's office where he was interviewed on video by detectives. Upon entry into the interview room, defendant was advised by Detective Andrew Zinke that the room was equipped with video and audio equipment. Defendant told the detectives that he thought "someone gave her drugs or something." Defendant would go on to make this claim for the next 71/2 hours, during which he reviewed the events of the previous night. He told the detectives that "she didn't look fucking right when she came in." Defendant explained that he had known V.W. since the day before Easter and that he met her through an online dating service. Defendant told the police that V.W. had been out with someone and that "you need to research the records that someone gave her drugs or something." Again, defendant said that V.W. did not look right when she came in. He said he had never seen her like that before. Defendant said that he asked V.W. if she had taken anything and she said "no." Defendant said that V.W. told him that he was too good for her. Defendant then laughed and said, "you know what that means when a woman says that." Zinke then said, "that means they're cheating on ya . . ." to which defendant responded "Uh. I don't know if she did that. I know she was still talking online to guys and so forth but, you know."

¶ 15 Defendant told the police to look at the phone bill. Zinke assured defendant that that would be done. Zinke then asked defendant where V.W.'s cell phone was. In response, defendant said, "[o]h, hers? Fucking . . . she threw it on the ground. I picked it up and I fucking broke it in fucking half." Zinke then asked defendant where the phone's SIM card was and defendant said that it was sitting right in front of her purse on the coffee table. Defendant gave his verbal and written consent to search his home.

¶ 16 Defendant was asked to describe the events of the day before, starting in the morning. Defendant said he went to the gas station in the morning. V.W. was going to visit her son. V.W. was driving right behind him. He called her on her cell phone and asked her if she would like coffee. She said yes, and defendant went inside the station and got her coffee. He came out as she pulled into the station. Defendant noticed that one of V.W.'s tires was low. She drove to the shop where defendant worked and he filled the tire. Defendant asked V.W. to call him when she arrived in Wisconsin. According to defendant, he talked to V.W. around 12:30 p.m., and he called back around 2:30 p.m. but got V.W.'s voice mail. He said he just kept hitting redial over and over again and got her voice mail each time. Defendant then said "I knew there was a man of interest out there 'cause she moved out last weekend. She was on some dating line. I said fuck it, oh well, just like last week." Defendant explained that he was at work when a neighbor called and told him "you're old lady is moving out." Defendant then said "I think this-the guy she wants to go see gave her something." Defendant said that he spoke to V.W.'s husband and told him that V.W. had left a couple of items at his house. Defendant said that V.W. came to his house at 10:30 p.m. and that she had called him before she arrived. Defendant said that he did not want V.W. at his house and that she was weird. He was upstairs in his house when she arrived. After he came downstairs and let her in she started slapping him. Defendant asked V.W. if "the guy" had slipped her anything. He explained that he was referring to a man named Scott whom V.W. had met online. Defendant said that Scott's number would be on V.W.'s phone records. Defendant said that the previous week he told V.W. to "get the fuck out." Defendant apologized to V.W.'s ex-husband "for having her move back over there, you know-for the episode last week." Defendant then asked if there was any information about V.W. Zinke told defendant that they did not have any information at that time. Defendant said he met V.W. online the day before Easter and she moved in with him a few weeks later. Defendant described their early relationship as "fucking beautiful." He said he had never seen V.W. act weird before. He said she had been an "angel" and did not smoke or drink.

¶ 17 Defendant said that V.W. was not distraught when she arrived but that "it was like, actually a rage." He said that after he let her in he told her "grab your couple of things and go." He said that then they started arguing and "the next thing you know, I'm slapping, fucking-it's just like I don't know how many times I threw my fucking arms or whatever, same shit-different fucking week." The video showed defendant display for the police how he hit V.W. with his hands open. Defendant explained that he and V.W. had engaged in a physical altercation once before. Defendant said that V.W.'s face was "puffy" when she arrived. Defendant asked V.W. if she had taken something. He said she denied taking anything and that this "just added-fueled the fire." Zinke then asked defendant how he and V.W. calmed things down after their "little altercation." Defendant responded by saying that they calmed down by "making love." Zinke then said, "[o]kay, but I mean, is it just like-obviously something was said" and defendant replied, "[n]o, it's fuck you, I love you, wh-I don't want the other guy, shit like that." The detective then said "so, it de-escalates and then you guys go back to the bedroom." Defendant responded "yeah." Defendant said he went to bed "by about midnight, 1:30 and I fell asleep and the dog jumped on the bed and she's not allowed on the bed." He said that the dog woke him up and he went into the kitchen to let the dog out. He said he usually kept cigarettes by the back door because V.W. hated smoke. He was out of cigarettes, though, so he jumped into V.W.'s car, drove to the gas station, grabbed a pack of cigarettes, and went back home. As he walked in the bedroom he saw that drool came out of V.W.'s mouth and her nose was plugged up with "chunks." Defendant said he grabbed V.W. and started shaking her and dragged her off the bed and called 911. Defendant then asked to use the restroom. A detective told defendant that he would try to get news about V.W. Defendant said "I hope so. I don't know, man-she was just fucking cold when I touched her."

¶ 18 Defendant was told that there were detectives at his house and that they could not find the SIM card for V.W.'s phone. Defendant said that the card was on the coffee table in front of V.W.'s purse. Defendant returned to the subject of someone slipping V.W. drugs because she would never do drugs. Defendant said he wanted to know what was going on and that he wanted to go to the hospital. He agreed to provide a set of fingerprints for elimination purposes and provide a DNA sample.

¶ 19 It was pointed out to defendant that his hand was swollen. Defendant said he injured his hand the night before when he punched a piece of wooden wall trim. The police then falsely informed defendant that, although V.W. was in serious condition, she was "alive and kicking." During breaks in the interview, the video recorder continued to run. During two of these breaks defendant called his father using his cell phone. During the second phone conversation defendant told his father the following:

"God. Hey, they just told me she's okay. I. Fuck. I was doing CPR on her, waiting for the paramedics-she had fucking -- she was chocking on fucking vomit-every time I blew-every time I fucking blew in her fucking mouth, there was fucking vomit-shit kept coming out-I was pumping-I don't know-she was out all night. I don't know.

No-no. I don't know. Actually, I told her not to come back to the house and uh, I called her. I even called her ex-husband and he's like I don't want her over here. Then she tried opening the windows in the basement and shit and finally I went downstairs and we got in a fucking heated argument and both of us were slapping each other and the dog jumped on the bed and woke me up and when [V.W.] is there the dog is not allowed on the bed because of the hair and I went and took her to go let her out and fucking, my cigarettes are usually sitting right there on the little-there is a little nitch [sic] by the door. There were no cigarettes and my pants were in the living room so I threw my pants on and I let the dog out and went and grabbed a pack of smokes and fucking came back, walked in the bedroom and there she was this slurry shit on the fucking pillow coming out of her mouth and I looked and there's chunks in her nose and looking at her there's nothing and fucking grabbed her and she's fucking cold. And I shook the fuck out of her and started fucking slapping her and fucking-breathing in her mouth-every time I breathed in her mouth, all this puke would come out and she doesn't drink but I swear to God she was on something last night. I don't know where she ate. I don't know what she had, nothing. When I was there, they kept going towards the room and the sheriff wouldn't let me in the door. I saw them going-you know doing CPR and they did the suction cup thing and they told me to go sit in the kitchen. The next thing you know, they took her away and I haven't heard nothing since until just now.

You at work. Fuck. I'm at the sheriff's office. They want to keep me here for, I don't-they said I have to wait. All they're doing is an investigation at the house. Well, I'm stuck in this room here. I know that she uh-she was still on that fucking dating thing and she went and met a guy tonight. She came back all delirious and shit. Honestly, I think the guy fucking drugged her or something 'cause I've never seen this girl and it's only been two months, I've never seen her, nothing like this whatsoever-nothing.

So, like I said, Dad, I had no fucking response, I was freaking the fuck out and every time I fucking breathing [sic] inside her fucking, puke would come out her fucking nose and mouth and oh, God-pumping on her fucking chest and-what town you in? Okay-all right-bye. God-fuck-fuck-God-holy fuck, thank you-God. Holy shit, thank you."

¶ 20 After defendant's second phone call to his father, Detective Jacob Keltner told defendant that he wanted to talk about the physical altercation but first wanted to read defendant his Miranda rights. After being read his rights, defendant signed a waiver. Keltner asked defendant to be as specific as possible as to what took place after V.W. got home. Defendant said that V.W. "parked like hiding the car on the street." He said V.W. then tried to get into the house. He yelled out the window at her and she yelled back at him to let her in. Defendant said he came downstairs, unlocked the storm door, and let her in. Defendant repeated a version similar to that he had provided earlier in the recorded interview. He said that V.W. brought up "this other guy." He said he told V.W. on the phone before she arrived not to come back to his house, because she had moved out the previous week. When she arrived at his house defendant kept telling her to leave, but she was not acting like herself. V.W. nudged him and then started "swatting" him and he "swatted" her back. He said that "right upstairs" he punched a piece of oak on the wall a few times. Defendant said he then went out on the porch to have a cigarette and he asked V.W. to "fucking leave." Defendant then said, "the argument went on and on and the next thing you know, we're in the bedroom, having sex." Defendant denied using his fist on V.W. and said that he had only slapped her. He said V.W. tried to strike him but he blocked it. Defendant was asked where he hit V.W. and he said that he hit her on her hands. According to defendant, the physical altercation lasted 30 to 45 minutes. V.W. was ranting and raving about the guy she had been with, and V.W. told him that she might "screw the other guy next week." Defendant denied using any weapons and again said that the injury to his hand was from pounding "the fucking wall hard." The police photographed defendant's hand as well as marks on his arms and a scratch on his left shoulder.

¶ 21 Defendant said that before he found out about V.W.'s new man they had planned to move to Lake Geneva and that he had signed a lease. He said that after V.W. visited her son she was supposed to come home. After he was unable to reach her he called her ex-husband, who told him that she had left the ex-husband's house. Defendant spoke to V.W. while she was on her way home and she was "being all fucking cocky and shit and telling me how this guy was great-she's going to go back an [sic] see him and sleep with him next weekend and I'm like you know-whatever." Defendant assumed that V.W. had been with Scott. Defendant said that he was "upset" with V.W. and had been upset since last week. Defendant was then asked, "[u]pset, pissed 'cause you're breaking up?" and he responded, "[y]eah, and she knew it, too. She's trying to get back together with me and she's like, you're not the same-that's because she fucking crushed me."

¶ 22 Defendant told the police that the physical altercation started after he closed the door and proceeded up the stairs. He was asked, "[h]ow does that de-escalate to where you guys are having sex in the bed?" and he said, "[m]akeup sex, I don't know." The detective told defendant that his story where V.W. comes downstairs, she is very happy about this new guy and is being cocky to defendant, but then she decides to have sex with him was a "far stretch." In response, defendant said, "[w]ell, it happened last week too, you know." Defendant said that the previous week's argument did not include "all the slapping and shit" and that, after discussing V.W.'s new guy, she lay in bed with defendant and told him that she could not be without him. Defendant was asked if V.W. had told him the previous night that she could not be without him, and he said that he did not think so. He said, "[i]t all happened so fast, you know, and then at one point we're fucking hugging and we're fighting and we're hugging and I don't know, it was a bunch of fucking chaos-it really was."

ΒΆ 23 Defendant said that before ending up in the bedroom with V.W. he went outside on the deck to smoke a cigarette and drink a beer. He said that V.W. came outside and that things had calmed down. He said that they went back into the kitchen and things did not get heated again. Defendant was asked if he then went to the bedroom, and he said that he got undressed in the living room instead. He told V.W. that he had to go to bed because he had to get up to go to work. They then made their ...


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