People v. Allen

599 N.E.2d 1278, 233 Ill. App. 3d 948, 175 Ill. Dec. 264, 1992 Ill. App. LEXIS 1363
Procedural entryThis page is a short order in People v. Allen. Read the opinion of the Court — 220 Ill. App. 3d 772
Appellate Court of Illinois·Decided August 26, 1992·No. No. 3—91—0213·Published

Opinions

JUSTICE HAASE

delivered the opinion of the court:

The defendant, Donald Allen, appeals his conviction for criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12—13). The issues on appeal concern the following: whether the trial court properly suppressed a remark made by the victim several months before the offense; whether the prosecutor committed error in closing argument; and whether the defendant was improperly convicted of two counts of criminal sexual assault. We find no error and affirm.

The record shows that the defendant was initially charged with two counts of criminal sexual assault. Count I alleged that the defendant had performed sexual intercourse with Linda Morris by the use of force, and count II alleged that he had performed sexual intercourse with Linda Morris by the threat of force.

Prior to trial, the defendant filed a motion seeking to admit evidence that before the offense, Morris agreed to have sex with the defendant and Todd Mathena. At the hearing on the motion, Mathena testified that in early March of 1990, he and the defendant had a conversation with Morris. Mathena asked Morris if she would have sex with him and the defendant. Morris first refused, but she later agreed to do so. They did not, however, have sex at that time.

The trial court denied the motion, finding that the evidence was too remote and immaterial to be admissible.

At trial, Morris testified that she and the defendant had been friends before the offense. On the evening of July 14, 1990, she saw the defendant walking by her parents’ apartment. The two then walked back to her apartment, where they talked. She noted that he appeared to be drunk. Around 8 or 8:30 p.m., he passed out on her couch. A few hours later, Todd Mathena came over. After he and Morris talked for a while, they walked to a liquor store and bought beer. They returned around midnight and drank some of the beer. When the defendant awoke, he talked and drank with them for about an hour.

Mathena decided to leave around 1:30 or 2 a.m. Morris kissed him and asked him to spend the night, but he refused. After he left, the defendant grabbed Morris from behind. She pulled away from him, but he grabbed her hair, picked her up, and carried her into the bedroom. He then threw her on the bed and kissed her. Morris screamed and bit him on the shoulder, but he grabbed her by the throat with one hand, made a fist with the other, and threatened to kill her if she did not shut up. After he removed her clothes and performed oral sex on her, he forced her to have intercourse.

Following intercourse, Morris told him that she had to go to the bathroom. She then grabbed her clothes and purse and ran out of the apartment. The defendant yelled at her to come back, but she ignored him and ran to the apartment of a friend, Tina Brooks. When she told Brooks what had happened, Brooks called Mathena and the police. After the police arrived, Morris was taken to the hospital.

Tina Brooks’ testimony generally corroborated Morris’ testimony about what had occurred at Brooks’ apartment. Specifically, Brooks said that Morris was very upset when she arrived at her apartment. Morris then told her that she had been sexually assaulted.

Doctor George Roodhouse testified that he examined Morris following the attack. Morris told him that she had been sexually assaulted. The only injury he saw was a small bruise on her left shoulder.

Officer Robert McMahon testified that he spoke to Morris following the incident. Afterwards, he went to Morris’ apartment, where he found the defendant sleeping on her bed. He then arrested him.

Officer John Royal testified that he and Officer Robert Canavit questioned the defendant following the incident. The defendant admitted having intercourse with Morris but denied raping her. Officer Canavit then photographed what appeared to be a bite mark on the defendant’s shoulder. The trial judge allowed the photograph into evidence. The defendant explained the mark to Royal by saying that Morris had bit him during intercourse. He also said that he had performed oral sex on Morris.

After the State rested, the defendant testified that he spent most of July 14 drinking beer and playing pool with his friends. That evening, he met Morris outside her parents’ apartment. Morris had beer on her breath. At her invitation, he went over to her apartment. While there, he drank one or two beers. He and Morris then kissed on the couch until he fell asleep.

When the defendant awoke, he saw Mathena drinking beer with Morris. He joined them and drank another beer. After Mathena left, Morris sat down by the defendant and began kissing him and rubbing his genitals. The two then went into the bedroom, where Morris performed oral sex on him. Afterwards, they had intercourse. During this time, Morris sucked on his shoulder. When they finished, the defendant put his clothes on and fell asleep on the bed.

The defendant further testified that he later spoke to Officers Canavit and Royal about the incident. He told them that he did not perform oral sex on Morris. At trial, he again stated that he did not perform oral sex on her.

Timothy Widger testified that he lived in the apartment next to Morris’. That evening, he watched television from 10 p.m. until 2:30 a.m. During that time, he did not hear any unusual sounds from Morris’ apartment.

Todd Mathena testified that he had known Morris for six or seven years. He also knew some of her friends, associates, and neighbors. In his opinion, she had a reputation for being untruthful.

Opal Norris also testified that Morris had a reputation for being untruthful. Norris admitted that she was a friend and former neighbor of the defendant’s mother.

Officer Robert Canavit testified in rebuttal that he and Officer Royal questioned the defendant on July 15. The defendant admitted that he had had intercourse with Morris, but he denied raping her. He also said that they had performed oral sex on each other. According to Canavit, neither the defendant nor Opal Norris had good reputations for truthfulness in their neighborhoods.

During his initial closing argument, the prosecutor stated:

“Finally, I would ask you to consider the motive that the two witnesses who were in the apartment that night might have to fabricate. Does Linda Morris have any motive to not tell the truth? Do you think she would have gone through all of this, the emergency room procedures. *** The defendant, he’s on trial. That’s his motive.”

During his rebuttal argument, the prosecutor stated:

“Now, the defendant testified in this courtroom that he never performed oral sex on Linda Morris. Detective Royal and Detective Canavit testified that when they talked to the defendant at the county jail he told them that he performed oral sex on Linda Morris, and as I recall the defendant’s testimony he denied that he ever told that to the police. Now, if you are going to accept what the defendant has to say about this case, not only are you going to have to find that Linda Morris is a liar, but you are going to have to find that Robert Canavit and John Royal are liars.”

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People v. Allen, 599 N.E.2d 1278, 233 Ill. App. 3d 948, 175 Ill. Dec. 264, 1992 Ill. App. LEXIS 1363 (Ill. Ct. App. 1992).

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