People v. Barnes

2021 IL App (2d) 190792-U

Opinion

2021 IL App (2d) 190792-U No. 2-19-0792 Order filed September 14, 2021

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent by except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ____________________________________________________________________________

PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) of Du Page County. Plaintiff-Appellee, ) ) v. ) No. 19-CF-260 ) MONROE A. BARNES, ) Honorable ) George J. Bakalis, Defendant-Appellant. ) Judge, Presiding. _____________________________________________________________________________

JUSTICE HUDSON delivered the judgment of the court. Justices McLaren and Zenoff concurred in the judgment.

ORDER ¶1 Held: The trial court erred in holding that lack of consent was sufficient to prove use of force in prosecution for criminal sexual assault and aggravated criminal sexual assault.

¶2 I. INTRODUCTION

¶3 Following a bench trial in the circuit court of Du Page County, defendant, Monroe A.

Barnes, was convicted of aggravated criminal sexual assault and sentenced to seven years’

imprisonment. He now appeals, arguing that he was denied due process when the trial court

applied an incorrect legal standard in assessing the evidence and also contending that the State 2021 IL App (2d) 190792-U

failed to prove one of the elements of that offense. For the reasons that follow, we reverse and

remand.

¶4 II. BACKGROUND

¶5 Defendant was charged with three counts: (1) aggravated criminal sexual assault based on

his allegedly causing harm to K.B. while committing criminal sexual assault; (2) aggravated

criminal sexual assault based on his allegedly causing K.B. to ingest heroin while committing

aggravated criminal sexual assault; and (3) criminal sexual assault based on his committing an act

of sexual penetration by use of force. The trial court found defendant guilty on the first and third

counts, and it determined that the third count merged into the first count. At trial, the following

evidence was presented.

¶6 The State first called K.B. K.B. testified that she was born in March 1997. At the time of

the trial, she was employed as a paramedic. In 2013, K.B. was 16 years old and attended high

school. She had been having issues with drugs and alcohol since she was 11 or 12 years old. She

used alcohol and marijuana frequently. She began experimenting with other drugs. She started

using heroin when she was about 15 or 16 years old. She was placed in an alternative school that

had a substance-abuse program. Her parents knew she used drugs, but were not aware that she

used heroin. K.B. was employed at a McDonald’s, where she had begun working when she turned

16. She was using a wide assortment of drugs on a daily basis to avoid withdrawal symptoms.

During the two months leading up to November 2013, K.B. was using one or two bags of heroin

per day.

¶7 On November 13, 2013, she was scheduled to work at McDonald’s in the afternoon. On

that day, she awoke and went to Walgreen’s. She had not yet used any heroin, and she was seeking

to purchase some. K.B. testified that she was wearing sweatpants and a sweatshirt. She intended

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to purchase heroin from defendant. Defendant called himself “Money.” K.B. had met him about

two weeks earlier at McDonald’s. Defendant initially approached her about selling her marijuana,

and they exchanged phone numbers. On November 13, 2013, she contacted defendant for the first

time about buying drugs. She had money to purchase heroin. They arranged for defendant to pick

her up at Walgreen’s. Defendant arrived in a black or dark gray sedan. K.B. got into defendant’s

car, and they discussed her purchasing heroin. Defendant had a gun on his person. They were

going to drive to a house where K.B. could purchase heroin. They drove to an apartment building

and parked in the garage.

¶8 K.B. testified that they entered an apartment, where a white male was present. K.B. sat on

the couch. Defendant “set a line for [her] to do of heroin” on the kitchen table. They had not

discussed payment, and K.B. assumed that the line was a “taste.” She ingested the heroin, and she

“felt kind of like in a daze.” She “nod[ded] off” and when she “came to” she was on the couch.

Only defendant and the white male were present. Defendant was in the kitchen doing something

with a blender, and the white male was ingesting heroin at the dining room table.

¶9 Defendant “pulled” K.B. to the dining room table. She stated: “It felt aggressive, but again,

I was in a daze. So I was like a literal rag doll, I mean, it was hard for me to even walk at this

point.” Defendant had her by the arm, and she “felt like she was being thrown across the room.”

She had told defendant that she could not consume any more. Defendant pushed K.B. down on

the table. His hand was on her upper back or neck. K.B. ingested some heroin, which she

described as a “large amount.” She consumed “about two large lines on top of [her] normal

amount.” She “nodded off again.” K.B. stated that she then became nauseous and “stumbled to

the bathroom.” K.B. testified that she was standing in the bathroom alone, “[h]unched over the

sink,” and defendant came in and closed the door. Defendant pulled K.B.’s pants down, and she

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pulled them back up. He pulled them down again. He penetrated her with his finger. K.B. “was

bent over and [defendant] put his penis inside of [her] vagina.” K.B. was crying. Defendant also

“penetrated [her] anus.” It was painful. Defendant ejaculated and left the room. K.B. “nodded

off,” and the next thing she recalled was leaving the apartment.

¶ 10 When she awoke, K.B. stated that she had to go to work. She had ingested too much heroin

and was unable to walk. Defendant carried her to his car and took her to a Jewel store that was

across the parking lot from the McDonald’s where she worked. Defendant walked her into the

Jewel. She was unable to get out of the car without assistance. She identified a photograph

showing her and defendant entering the Jewel. She went into the bathroom to change into her

work uniform. She did not recall defendant kissing her by the bathroom. Inside the bathroom, she

experienced a “[c]omplete blackout.” She got changed and was able to walk to the McDonald’s,

though she did not “really remember the walk, but [she] remembered getting there.” When she

arrived, her boss realized something was wrong and called K.B.’s mother. Her mother arrived,

and the next thing K.B. recalled was being at the ICU. A sexual assault examination was

performed.

¶ 11 A few days after leaving the hospital she met with Naperville police officers. She did not

tell the police everything that happened. She told them that she was taken to the apartment by her

“drug supplier,” whose name was Santiago. She stated that her drug supplier had drugged her by

giving her a root beer with something in it. She testified that she otherwise accurately described

what transpired in the apartment (as is set forth above in her earlier testimony). However, she

merely stated that the man who assaulted her was a black male and that no one else was present in

the apartment. She stated that she did not know the black man. She explained that she did this

because she was afraid of defendant. She was also afraid of her family finding out about her heroin

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use. She told the police that she did not wish to pursue the matter. Since November 13, 2013,

K.B. has never used heroin.

¶ 12 In 2018, the Naperville police contacted K.B.’s mother. The police stated that they had

received a positive result on a DNA test from the evidence recovered when K.B. had the sexual

assault examination in 2013. K.B. went to the Naperville police station for a second interview and

spoke with Detective Paul Elliot. At this time, K.B. told the police that defendant had picked her

up and brought her to the apartment where she was assaulted. She informed the police that what

she told them in 2013 about Santiago was not true. She lied because she was afraid of defendant.

¶ 13 On November 13, 2013, K.B. had used a cell phone to contact defendant. She brought the

phone to the apartment with her that day. She never saw the phone again after leaving the

apartment. She never agreed to have sex with defendant.

¶ 14 On cross-examination, K.B. stated that she recalled telling defendant that she was 17 years

old. She acknowledged that at the time of the incident, she was a drug addict. She only snorted

heroin and never injected it. A bag of heroin contained about two lines, and she was using one or

two bags each day. For the week or two preceding the incident, she was using two bags per day.

She was also using marijuana and alcohol at this time but typically did not mix other drugs with

heroin. She also sometimes took pills such as Klonopin and Oxycontin. She started using drugs

at age 12, and she testified that she had tried “just about every drug” except meth. She was once

admitted to the hospital with a blood-alcohol content of .43. She acknowledged having been “in

and out of rehabs, various rehabs, [and] behavioral schools through [her] high school years right

up to 16.”

¶ 15 K.B. testified that she did not recall what time she had to work at McDonald’s on November

13, 2013. She also did not recall what time she in fact arrived at the Jewel store near her work.

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She did not remember much about the time she spent in the hospital. She did not recall speaking

with medical staff or giving a statement to Dr. Rangala, who performed the sexual assault

examination. She did, however, recall the examination. She admitted that what she told the police

about Santiago was a lie. She denied seeing a woman named Amber or a child in the apartment.

However, she acknowledged telling the police that she had. She explained, “I think I just made up

a reality in my head.” She called it an “impulse lie” and agreed that she was an “impulsive liar”

back then. She stated that she had brought money to buy heroin to the apartment, but did not recall

how much.

¶ 16 During her first interview with the police in 2013, she did not tell them that she had been

assaulted anally. She agreed that, in 2019, she told the prosecutors that she could not recall whether

defendant held a gun to her head. She recalled that during the 2013 interview, the police told her

that they did not believe what she was saying and that she became upset.

¶ 17 K.B. agreed that she often changed into her work uniform using the bathroom at

McDonald’s. There was no reason for her to go to Jewel to change. At the time of the incident,

she had known defendant for two weeks to a month. She had not purchased drugs of any sort from

defendant prior to November 13, 2013. Prior to meeting defendant at Walgreen’s, she went inside

and stole Mucinex and cough medicine. She took a syringe from her brother’s room, which she

intended to use for heroin, but she had never ingested it in any way other than snorting it. She

later added that she did not intend to use the syringe that day. K.B. denied asking a woman named

Amber to “do a threesome.” She then stated that she did not recall if a child was present in the

apartment. K.B. stated that she voluntarily ingested a line or two of heroin in the apartment. She

never paid anyone for the heroin. She did not recall giving defendant any money. After the

incident, she asked defendant to drive her to Jewel. Defendant drove her there and walked in with

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her. She did not recall going into the bathroom, though she did remember arriving in the parking

lot. She did not recall defendant threatening her. She reviewed a surveillance tape from Jewel,

where she and defendant walked into Jewel. She denied kissing defendant. K.B. spent about two

hours on the floor of a stall in the bathroom.

¶ 18 On redirect-examination, K.B. stated that prior to defendant, Santiago was her only

supplier of heroin. She never used a syringe to inject heroin. On recross-examination, she stated

that she did not recall taking any heroin with her when she left the apartment. She stated that she

did not recall the white male being present after the incident in the bathroom, but clarified that she

may simply have not remembered him due to blacking out.

¶ 19 The State next called Charles Baker, who stated that he was a background investigator for

the Naperville Police Department. On November 14, 2013, during the early afternoon, he

responded to Edward Hospital regarding a reported sexual assault. He was accompanied by

Detective Elliot. Other officers were already present. He learned that K.B. had arrived the

previous day. He spoke with medical personnel and K.B.’s mother. K.B.’s mother had obtained

K.B.’s cell phone records from November 13, 2013, and gave them to Baker. There were

numerous calls between K.B.’s cell phone and a phone with the number (312) 931-0286 that took

place in the morning up to about 1 p.m. Baker learned that K.B.’s mother had transported K.B.

from K.B.’s place of employment to the hospital and that K.B. had been at a Jewel store shortly

before going to work. Another officer, Officer Krzos, obtained a surveillance video recording

from the Jewel. The recording was played for the trial court. At about 2:45 p.m., it shows a dark

sedan in the parking lot. Defendant and K.B. enter the store. Defendant leaves when K.B. enters

the bathroom. At approximately 4:47 p.m., the recording shows K.B. exiting the bathroom.

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¶ 20 On November 18, 2013, Baker and Elliot met with K.B. at the Naperville Police

Department. On November 20, 2013, Baker contacted K.B.’s cell phone carrier to see if they could

“ping” her phone. The carrier was able to identify two locations where the phone was that day.

One was near the apartment where K.B. went on November 13, 2013. Baker also obtained records

for the phone with the number (312) 931-0286. Defendant’s name was associated with that phone

account. In March 2014, the case was closed as inactive, as K.B. did not wish to pursue it.

¶ 21 On cross-examination, Baker testified that the police’s attempts to locate K.B.’s underwear

were unsuccessful. A syringe was recovered from K.B.’s purse. Baker agreed that defendant and

K.B. kiss on the surveillance recording. During an interview with K.B. after she had gotten out of

the hospital, Baker confronted her with inconsistencies in her story. K.B. became upset and stated

she did not wish to pursue the matter further. During his interview with K.B., she never stated that

she had been anally assaulted or that defendant had a gun.

¶ 22 On redirect-examination, Baker stated that the police did not start looking for K.B.’s

underwear until the day after the incident. During his interview of K.B., Baker showed her a still

photograph made from the surveillance recording. K.B. indicated that the man she was with in the

photograph was the man that had assaulted her.

¶ 23 Detective Paul Elliot of the Naperville Police Department next testified for the State. He

was involved in the initial investigation of this case with Baker. On November 8, 2018, he received

a report from the Du Page County crime laboratory that identified defendant as a suspect. He

contacted K.B.’s mother. The next day, he spoke with K.B. via telephone. K.B. agreed to meet

with him. They met on November 13, 2018. Jenna Trombino, a victim’s advocate, was also

present. K.B. showed them where the incident had occurred, though she did not know the exact

apartment unit. Defendant’s girlfriend, Amber Czerwinski, had an apartment in the area.

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¶ 24 Elliot learned that defendant was being held in the Lake County jail. On January 4, 2019,

he and Detective Reed traveled to Lake County to interview defendant. A video recording was

made of the interview and played for the trial court. Defendant was shown a still photograph taken

from the surveillance video, and he repeatedly denied having a sexual relationship with the girl in

the photograph (i.e., K.B.).

¶ 25 On cross-examination, Elliot agreed that K.B. intended to go to work after she changed

clothes at Jewel. He further agreed that some over-the-counter medicine was recovered from

K.B.’s purse at the hospital, including “Dramamine, Mucinex, some red capsule, Coricidin chest

and cough congestion medicine.” A syringe was also recovered from K.B.’s purse. Elliot testified

that he contacted K.B. after receiving the results of a DNA report. During the 2018 interview,

K.B. admitted lying in 2013. Elliot testified that K.B. told him that initially, when she went into

the apartment, “she snorted several lines of heroin consensually and then passed out.” Elliot stated

that she did not say “one or two.” She did, however, state that “when she woke up * * * he grabbed

her, [and] put a gun against her head.”

¶ 26 Elliot agreed that, in 2018, he did not question K.B. further about the details of the sexual

assault. He explained that this was because he “didn’t want to victimize her again” and they “had

her disclosure initially.” The following exchange then occurred between Elliot and defense

counsel:

“Q. Well, Detective, you agree at this time she told you, yeah, I lied about a lot of

stuff –

A. Uh-huh.

Q. -- and you didn't think to be more accurate and thorough, that we’re going to go

through everything including whether this assault even occurred?

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A. It’s not to be more accurate, it’s just – I know the events that she disclosed earlier

were traumatic. I didn’t want her to have to go through that again because that was already

documented.

Q. And you think that’s a fair investigation?

A. Yes.”

Elliot acknowledged that he did not learn that K.B. was stating that she had been digitally

penetrated and anally penetrated until he underwent trial preparation. It was at this time that he

also learned that K.B. was unsure whether defendant “had a gun or not.” Elliot also testified that

defendant advised him that he was in a relationship with a woman named Amber, with whom he

had a child.

¶ 27 On redirect-examination, Elliot stated that he never actually handled K.B.’s purse. What

he knew about its contents came from reviewing reports. He clarified that when the presence of a

gun was discussed with K.B., she never stated that defendant did not have a gun; rather, she was

not “clear on the details of how the gun was used.”

¶ 28 The State then called Dr. Sangita Rangala. She testified that she is an attending physician

in the emergency department at Edward Hospital. On November 14, 2013, Rangala treated K.B.

at the Edward Hospital Care Center. On the previous day, K.B. had been “brought in by ambulance

for an altered mental state.” She “presented in a state of lethargy,” with “pinpoint pupils and

slurred speech.” Her blood pressure was “very low,” and “there was worry about a heroin

overdose.” Her oxygen level was below the range for a healthy person, and she was unable “to

blow off enough carbon dioxide to keep her blood pH normal.” Rangala added, “[A]ll of those

point to some sort of [opiate or] narcotic overdose.” Rangala characterized K.B.’s heroin

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consumption as being “significant enough that it was life-threatening.” K.B. “did not return to a

normalized mental state until the following day on November 14, 2013.”

¶ 29 Because a sexual assault was reported, Rangala conducted a sexual assault examination.

K.B. reported genital pain, and Rangala noted tenderness behind the jaw and across the chest. K.B.

stated that she had not engaged in any sexual activity in the preceding 72 hours. During the anal-

genital portion of the examination, Rangala observed “abrasions and ecchymoses to the hymen.”

She added, “Ecchymoses are discolorations associated with bruises.” These injuries were fresh;

Rangala noted no signs of healing. She observed no trauma to K.B.’s anus, but explained that this

is not unusual. Rangala opined, “[T]he hymenal findings of abrasion and ecchymosis were

definitive findings of sexual assault.” In the report she authored, Rangala characterized her

findings as “definitive evidence of sexual assault.” Rangala’s report also states that K.B.’s family

“had requested to obtain a rape kit, as the patient does not remember events leading to altered

mental status.”

¶ 30 On cross-examination, Rangala acknowledged that she had been told initially that K.B. had

not used drugs during the four months preceding the incident. She agreed that the mere fact that

there were abrasions to a patient’s hymen did not “mean that the person had nonconsensual sex.”

She further agreed that the existence of trauma does not “equal[] lack of consent.” However, she

only found trauma in about two percent of children that had been sexually abused. Rangala did

not find any other bruising, marks, or scratches to other parts of K.B.’s body. Rangala

acknowledged that it was possible that semen ejaculated during vaginal intercourse could “go from

the vaginal area to the anal area.” Rangala testified that she conducted a thorough physical

examination and did not observe any “track marks” or needle marks. The hospital records state

that K.B.’s drugs of choice were heroin and cocaine.

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¶ 31 On redirect-examination, Rangala testified that K.B.’s injuries occurred less than 24 hours

prior to her examination, as she observed no signs of healing. However, she did acknowledge that

it was possible that it occurred earlier. Medical records indicate that the family did not request

that a rape kit be performed until 9:41 p.m. on November 13, 2013. Rangala believed that the

examination was performed “as close as possible to when the concern was noted.” She explained

that “a patient has to be alert enough to know what we’re doing to be able to consent to what we’re

doing.” She agreed that “the optimal time in this case would have been after [K.B.] had completed

a NARCAN drip and recovered normal mental status.”

¶ 32 Rangala testified that while hymenal abrasions do not necessarily indicate lack of consent,

they are “consistent with forced sexual trauma.” Regarding K.B.’s mental state at the time she

was brought to the emergency room, Rangala explained:

“From the description of the emergency medicine physician and the hospitalist, her mental

state was altered, altered to the point that she was not able to maintain her blood pressure,

altered to the point that she was not able to breath enough to maintain oxygen levels, altered

enough that she was not trusted to get up and use a bedside commode or have enough

control to use a bedpan and therefore needed a Foley [catheter], altered enough that she

would get multiple doses of NARCAN, and then the NARCAN drip, which had to be

titrated up in dosage.”

She added, “This is a significant altering of mental status.”

¶ 33 On cross-examination, Rangala agreed that though hymenal abrasions would be consistent

with forced sexual intercourse, they can also be consistent with consensual sexual intercourse.

¶ 34 The trial court conducted a brief examination of Rangala. She stated that when she used

the term “force,” she meant “with some degree of pressure.”

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¶ 35 Defendant then testified on his own behalf. Defendant stated that he knew Amber

Czerwinski, Michael Pease, and K.B. He first met K.B. about a week prior to November 13, 2013.

He met her at the McDonald’s where she worked. Defendant was a customer. Subsequent to

meeting her, they had conversations on the telephone concerning her purchasing heroin or

marijuana. Defendant told her that he could not provide her with heroin, but he knew someone

that could, namely Pease. Defendant set up a meeting between K.B. and Pease on November 13,

2013. K.B. asked defendant if he could drive her to meet Pease. Defendant agreed. He drove

Czerwinski’s car. He and Czerwinski had gone over to Pease’s home earlier, and defendant left

from there to pick up K.B. Defendant testified that he did not have a gun with him.

¶ 36 K.B. appeared “antsy” and “excited” when she got into the car. They drove to Pease’s

apartment. They went inside, and defendant introduced K.B. to Pease and Czerwinski. Pease

called K.B. to the kitchen and “brought the heroin out.” Defendant was not involved in the heroin

transaction. Pease and K.B. both consumed heroin. K.B. came out of the kitchen and went to the

living area. She sat on the couch; Czerwinski was also sitting on the couch. Pease and K.B. went

back into the kitchen area to discuss the transaction. They returned to the living room. K.B. again

sat on the couch. A few moments later, Czerwinski “got upset and went to the bedroom.” Pease

and K.B. went into the bathroom. Defendant followed them into the bathroom. K.B. and Pease

were exchanging heroin for money.

¶ 37 Pease and K.B. returned to the living room. Czerwinski remained in the bedroom initially

and came out later. K.B. returned to the bathroom. K.B. was not having any difficulty

communicating. She seemed friendly and flirtatious. K.B. returned to the bathroom. A few

minutes later, she called defendant to the bathroom. Czerwinski was in the bedroom at this time.

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Defendant entered the bathroom. He testified that K.B. “began to unbuckle [his] pants, and she

initiated oral sex on [him].” Defendant continued:

“After that I got to the point where, you know, like, okay, so I pulled back, I started kissing

on her, you know. I was under her shirt, and I was licking on her chest area. I worked my

way down, performed slight oral on her before turning her around, and she bent over and

we began intercourse.”

K.B. never told defendant to stop, and instead stated, “fuck me.” Defendant stated that he engaged

in intercourse in several positions. After they finished, defendant reminded K.B. that it was

“almost time for [her] to go to work.”

¶ 38 Defendant left the bathroom. He told Czerwinski that he was going to take K.B. to work.

K.B. came out of the bathroom, and they left. Defendant told K.B. that he thought she was going

to get ready for work in the bathroom. K.B. replied that she would do so at Jewel. Defendant

stated that K.B. had two packets of heroin with her. Defendant parked the car at the Jewel and

walked K.B. into the store. She “wrapped her arm around” defendant’s arm. They walked straight

to the bathroom, defendant gave K.B. a kiss, and he said goodbye. K.B. did not appear to have

any difficulty walking when they entered the Jewel store. Defendant then returned to the apartment

to pick up Czerwinski, and they went home.

¶ 39 About five years later, defendant was in the Lake County jail. Two Naperville detectives

came to speak with him. During this interview, defendant denied having “any physical contact”

with K.B. He explained that he was afraid because he “ didn’t know what could have came [sic]

from the situation.” He added that he did not think anything “sexual would have been an issue

because it was consensual.” He thought it might have had something to do with “the fact that [he]

was trying to buy her marijuana.”

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¶ 40 On cross-examination, defendant acknowledged lying to the police on a prior occasion,

which resulted in a charge of forgery. He stated that when interviewed in 2018, he did not recall

K.B., but subsequently, he remembered her during the course of the proceedings before the trial

court. He agreed that he lied when he told police in 2018 that he had met K.B. in the Jewel parking

lot. He did not recall what vehicle he was driving on November 13, 2013, until he was shown a

picture of it. In 2018, when shown a picture of him and K.B. walking into the Jewel, defendant

could not recall K.B.’s name. Defendant initially told officers that he did not pick up K.B. and

drive her anywhere. The State pointed out numerous inconsistencies in statements defendant made

to the police.

¶ 41 Czerwinski had resided in the same apartment complex as Pease a year before the incident.

Czerwinski was not attempting to purchase heroin from Pease on November 13, 2013. Defendant

and Czerwinski were in an “on again, off again relationship.” She was the mother of defendant’s

children.

¶ 42 On March 4, 2019, defendant called Czerwinski and told her that he planned on beating

the case “by her not showing up.” He acknowledged being aware that K.B. had consumed heroin

prior to the time they purportedly had sexual intercourse in the bathroom.

¶ 43 On redirect-examination, defendant stated that when the police interviewed him, they never

asked if he engaged in consensual sex with K.B. Had they, defendant would have responded

affirmatively. When the police first showed him a picture of K.B. on January 18, 2018, he did not

recognize her. This is why his “story changed over a period of time.” On recross-examination, he

acknowledged that he never volunteered to the police that he had had consensual sex with K.B.

¶ 44 Defendant then called Amber Czerwinski. Czerwinski testified that defendant is the father

of her children. At the time of the trial, they were “not together.” She recalled the events of

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November 13, 2013, “briefly.” She and defendant went to Pease’s home. Czerwinski testified

that they took her car and that she drove. She was unaware of any drug transactions that might

transpire. While there, defendant received a phone call from a female. Defendant asked if he

could pick her up because “he was hooking her up with [Pease].” Czerwinski assumed that this

referred to a dating relationship; however, when K.B. “got there, it was something else.” Pease

and K.B. went to the kitchen. Czerwinski saw Pease “pull[] out some heroin.” This upset

Czerwinski, as she does not want to be around heroin. Defendant and Czerwinski argued about

this, and Czerwinski then went to a bedroom. A short while later, Czerwinski returned to the living

area. Defendant and K.B. were sitting on the couch “quite close together.” K.B. “turned to

[Czerwinski] and asked [her] to have a three-some with them [sic] two.” Czerwinski stated that

she “got very upset and went back into the room.” From the bedroom, Czerwinski texted defendant

and said she wanted to leave. Shortly thereafter, she saw defendant leaving with K.B. Defendant

said he was taking K.B. home. As K.B. was leaving, Czerwinski did not note anything out of the

ordinary about her. She was not staggering or slurring her speech. After defendant returned to the

apartment, he and Czerwinski went home.

¶ 45 Czerwinski did not see a gun in her car or Pease’s apartment that day. Defendant was not

in possession of a gun that day. In fact, she had never seen defendant with either heroin or a gun.

Czerwinski did not recall any children being at Pease’s apartment on November 13, 2013.

¶ 46 On cross-examination, Czerwinski stated that she and defendant had three children.

Defendant provides financial support for the children. Czerwinski and defendant dated for 12

years. Czerwinski and defendant spoke over the telephone while defendant was in the Du Page

County jail. He told her that he loved her, and she told him the same thing. They spoke on a near-

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daily basis. She had visited defendant in jail on two or three occasions. Czerwinski stated that she

does not wish anything bad to happen to defendant.

¶ 47 Czerwinski testified that she knew Pease to be a drug dealer prior to November 13, 2013.

However, she acknowledged that she did not ask to leave when the heroin was first pulled out and

that she remained in the apartment while defendant took K.B. to work despite its presence. While

she was in the bedroom, she never heard noises coming from the bathroom.

¶ 48 The State called John McAnally in rebuttal. McAnally testified that he is an investigator

for the Du Page County State’s Attorney’s office. On June 18, 2019, McAnally called Czerwinski

from in front of the condominium. A female answered. He identified himself and asked to speak

with Czerwinski. The female stated that Czerwinski was not available at that time. He left his

name, title, and phone number for a call back. McAnally went to Czerwinski’s place of

employment. He approached the receptionist and asked if Czerwinski was there. The receptionist

left and a short time later Czerwinski came to the lobby to meet McAnally. McAnally stated that

he wanted to speak with her about this case. Czerwinski responded that she was embarrassed that

McAnally was contacting her at work and that she would not speak with him. McAnally asserted

that he had tried calling, and Czerwinski stated that she would also not talk to him by phone while

she was at work. McAnally then chastised her for lying. McAnally said he would call after work;

Czerwinski stated that she would not speak with him. Czerwinski never contacted him after that.

On cross-examination,, McAnally stated that he understood that Czerwinski was under no

obligation to speak with him. On redirect-examination, McAnally stated that he thought the female

that answered the phone was lying when she said Czerwinski was not available.

¶ 49 The trial court found defendant guilty of aggravated criminal sexual assault based on his

allegedly causing harm to K.B. while committing criminal sexual assault (Count 1) and criminal

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sexual assault based on his committing an act of sexual penetration by use of force (Count 3). It

determined that the third count merged into the first count. It also acquitted defendant of

aggravated criminal sexual assault based on his allegedly causing K.B. to ingest heroin (Count 2).

¶ 50 The trial court issued a memorandum opinion setting forth its findings. It began its analysis

by noting the problematic nature of the evidence:

“The evidence presented by both the state and the defense was in many ways

contradictory. Within each side’s evidence as testified to there was testimony which the

court considers to be untrue.

The court has been required to sift through the evidence presented to distinguish

what really occurred in this case and to extract the truth from not only the contradictory

evidence but acknowledged falsehoods from both parties. What is true beyond a

reasonable doubt is the defendant engaged in sexual penetration of the complainant as

evidenced by DNA testing. Defendant now contends that this was a consensual act. The

complainant denies ever consenting to the sexual act.”

It then set forth the evidence that had been presented (which we discuss above).

¶ 51 It noted, in particular, that “[b]y her own admission [K.B.] was a severe drug user.” The

trial court pointed out inconsistencies in her testimony. For example, it observed that while she

initially stated that no one was present in the apartment when they arrived other than a white male,

she also told police she recalled a child being present. Similarly, she equivocated on whether she

saw defendant put two lines of heroin on the table. The trial court stated, “Throughout her

testimony, complainant had difficulty recalling many details of the event or what occurred

immediately thereafter.” When interviewed by the police the next day, the trial court stated, K.B.

“made up a story about by whom and what means she got to the apartment and did not tell the

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police of the involvement of the defendant or that the defendant had committed the acts in

question.” Five years later, DNA “showed defendant to be the person involved in this.” K.B.

“now told the police a different version of events from her 2013 interview.”

¶ 52 Regarding defendant, the trial court observed that he first denied knowing K.B. or having

had any contact with her. At trial, however, he “claimed to have a vivid recollection of the events

in question.”

¶ 53 The trial court found that K.B. “is mistaken about the events surrounding her heroin use at

the apartment.” It continued, “Whether [K.B] is lying about being forced to consume additional

heroin or whether her memory is obscured by her drug use, the court cannot determine.” It found

that K.B. first consumed heroin that day as “a test to verify that the substance was, in fact, heroin.”

The trial court noted that K.B. testified that she had brought money with her and that no money

was found on her when she was taken to the hospital. It inferred that “she purchased the lines she

now claims were forced upon her.” It did find K.B. credible “as to the charges themselves.”

¶ 54 The trial court then turned to the “crucial question” of consent. It first stated, “It is clear

to the court that however complainant consumed the amount of heroin which she did, she was

highly intoxicated on drugs as evidenced by her two-hour blackout in the Jewel bathroom.” It then

found that K.B. “was unable to voluntarily consent to sexual contact due to her highly drugged

condition.” The trial court further found the fact that defendant initially denied having any contact

with K.B. indicative of lack of consent, “If consent was truly what he believed was involved, this

would have been the opportunity to so claim.” The trial court also found Czerwinski to lack

credibility and stated that it “believe[d] she was not even present at the location.” The court

discounted K.B. allowing defendant to drive her to Jewel or to kiss her as the result of either her

fear of defendant or because she “was so drugged and unable to think clearly.” In support of the

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latter, the trial court observed, “This severe drugged condition again is shown by her

unconsciousness for two hours in the Jewel bathroom.” Regarding the use of force, the trial court

made the following finding:

“The court finds the defendant guilty of count 1 in that having nonconsensual sexual

contact with the complainant he caused bodily harm by bruising and laceration to her

hymen. The use of force as to that count is the nonconsensual nature of the act. In People

v. Haywood, 118 Ill. 2d 263, the Illinois Supreme Court found that non-consent to be [sic]

the equivalent of force.”

Finally, in denying defendant’s motion to reconsider, the trial court stated, “The only question in

my mind was was it consensual or was it not consensual.” Defendant now appeals.

¶ 55 III. ANALYSIS

¶ 56 Defendant raises a number of arguments that flow from a central premise: whether his

conviction can stand where the trial court did not find that he used force in the commission of the

offenses at issue here. First, he contends his due process rights were violated because he was

convicted despite the fact that the State did not establish force, an element of the offenses. Second,

he argues he was denied due process because the factfinder, here the trial court, applied a legally

erroneous standard of proof in that it omitted an element of the offense. Third, he asserts that he

was not proven guilty beyond a reasonable doubt. We find defendant’s second argument well

taken and we therefore need not consider his first argument. We are not persuaded by his third

argument.

¶ 57 Before proceeding further, we note that the State contends that defendant forfeited this

issue. We have little difficulty concluding that this error amounted to plain error under the second

prong of that test. Plain error may occur when “ (1) the evidence is close, regardless of the

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seriousness of the error, or (2) the error is serious, regardless of the closeness of the evidence.”

People v. Herron, 215 Ill. 2d 167, 187 (2005). While defendant contends both prongs apply here,

we will focus on the second one. Defendant is arguing that the trial court erred in finding evidence

of lack of consent established that he used force. In People v. Fonder, 2013 IL App (3d) 120178,

¶ 25, the court held, “The failure to inform the jury of the elements of the crime charged is so grave

and fundamental that the waiver rule should not apply.” In People v. Ogunsola, 87 Ill. 2d 216,

222 (1981) (quoting People v. Lewis, 112 Ill. App. 2d 1, 11 (1969)), the supreme court stated, “ It

is of the essence of a fair trial that ‘the jury not be permitted to deliberate a defendant’s guilt or

innocence of the crime charged without being told the essential characteristics of that crime.’ ”

The error alleged by defendant in this case implicates similar concerns regarding the trier of fact

not considering the evidence using the appropriate legal standard. Nelson, 2020 IL App (1st)

151960, ¶ 133 (“The trial court’s misunderstanding of an element at a bench trial is essentially the

same as a jury instruction that omits or incorrectly defines an element; in either instance, the result

of the error is that the trier of fact was misinformed about the State’s burden of proof.”). The

essence of defendant’s argument is that by mistakenly equating lack of consent with the use or

threat of force, the trial court failed to consider the evidence in light of the “essential

characteristics” of the offenses with which defendant was charged. We now turn to the merits of

defendant’s arguments.

¶ 58 Due process does indeed require that the trier of fact understand and apply the proper law.

See People v. Peebles, 125 Ill. App. 3d 213, 216-17 (1984). It is generally presumed that the trial

court understood the law and correctly applied it. People v. Nelson, 2020 IL App (1st) 151960, ¶

88. The presumption may be rebutted where the record affirmatively shows otherwise. People v.

Hernandez, 2012 IL App (1st) 092841, ¶ 41. The First District has observed, “This presumption

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is seldom overcome, but on a few occasions, we have ordered a new trial where it was clear that

the court, sitting as the trier of fact, misunderstood some aspect of the burden of proof.” Nelson,

2020 IL App (1st) 151960, ¶ 89.

¶ 59 The Criminal Code of 2012 (Code) defines criminal sexual assault, in pertinent part, as

follows:

“(a) A person commits criminal sexual assault if that person commits an act of sexual

penetration and:

(1) uses force or threat of force;

(2) knows that the victim is unable to understand the nature of the act or is unable

to give knowing consent;

(3) is a family member of the victim, and the victim is under 18 years of age; or

(4) is 17 years of age or over and holds a position of trust, authority, or supervision

in relation to the victim, and the victim is at least 13 years of age but under 18 years

of age.” 720 ILCS 5/11.20 (West 2012).

Aggravated criminal sexual assault is defined as criminal sexual assault committed with any of a

number of aggravating factors, including that “the person causes bodily harm to the victim.” 720

ILCS 5/11.30 (West 2012). Lack of consent is not an element of these offenses. See People v.

Roberts, 182 Ill. App. 3d 313, 318 (1989). Rather, consent is a defense that must be raised by a

defendant. People v. Denbo, 372 Ill. App. 3d 994, 1005 (2007). A defendant raises this defense

by presenting sufficient evidence to support the defense; the quantum of evidence has been

characterized as “slight” or “some.” People v. Mpulamasaka, 2016 IL App (2d) 130703, ¶ 71. If

a defendant successfully raises this defense, the burden is on the State to show lack of consent

beyond a reasonable doubt. Denbo, 372 Ill. App. 3d at 1005.

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¶ 60 In this case, the trial court found that K.B. lacked the capacity to consent, stating K.B. “was

unable to voluntarily consent to sexual contact due to her highly drugged condition.” We must

point out that defendant was not charged under section 11-1.20(a)(2) of the Code, which makes it

an offense where: “A person commits criminal sexual assault if that person commits an act of

sexual penetration and *** knows the victim is unable to understand the nature of the act or is

unable to give knowing consent.” 720 ILCS 5/11-1.20 (West 2012). The trial court then held that

force was used based solely on this lack of consent; that is, it found that the use of force was

inherent in the fact that a victim had not consented to the act.

¶ 61 We note that under established precedent, “[a] conviction for criminal sexual assault cannot

be sustained by merely establishing that the victim did not consent.” People v. Alexander, 2014

IL App (1st) 112207, ¶ 52. The Code defines “force or threat of force” as including, but not being

limited to the following:

“(1) when the accused threatens to use force or violence on the victim or on any other

person, and the victim under the circumstances reasonably believes that the accused has

the ability to execute that threat; or (2) when the accused overcomes the victim by use of

superior strength or size, physical restraint, or physical confinement.” 720 ILCS 5/11.01

(West 2012).

In Mpulamasaka, 2017 IL App (2d) 130703, ¶ 74, this court expounded on the use of force:

“The element of force refers to actions of the defendant that physically compel the victim

to submit to the act of sexual penetration. ‘Force’ within the meaning of [section 11-0.1

of the Code (720 ILCS 5/11.01 (West 2012))] requires something more than the force

inherent in the sexual penetration itself. [Citation.] A conviction of criminal sexual assault

cannot be sustained by establishing merely that the victim did not consent. [Citation.]

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Force is the essence of the crime of rape. [Citation.] Force can be established by evidence

that the defendant used his bodily inertia to prevent the victim from disengaging.

[Citation.] Physical resistance or demonstrative protestations are not necessary to

demonstrate that a victim was forced to have sexual intercourse, and the absence thereof

does not establish consent if the victim was threatened or in fear of being harmed.

[Citations.]”

In United States v. Johnson, 743 F.3d 196, 202-03 (7th Cir. 2014), the Seventh Circuit succinctly

stated, “Illinois does not, however, have a statute that criminalizes sexual intercourse with another

adult without the other’s consent, without more.”

¶ 62 The trial court in this case cited People v. Haywood, 118 Ill. 2d 263 (1987), in holding that

lack of consent equated with the use of force, asserting: “The use of force as to that count is the

nonconsensual nature of the act.” The trial court went on to state that “[i]n People v. Haywood,

118 Ill. 2d 263, the Illinois Supreme Court found that non-consent to be [sic] the equivalent of

force.” Curiously, in Mpulamasaka, 2016 IL App (2d) 130703, ¶ 74 (citing Haywood, 118 Ill. 2d

at 274), this court cited Haywood for the opposite proposition: “A conviction of criminal sexual

assault cannot be sustained by establishing merely that the victim did not consent.” Thus, we must

examine Haywood more closely.

¶ 63 In Haywood, a group of defendants argued that the statute defining criminal sexual assault

(Ill. Rev. Stat. 1985, ch. 38, par. 12-13 (now codified at 720 ILCS 5/11-1.20 (West 2012))) was

unconstitutionally vague in that the term “force” could be construed so broadly as to “mean simply

any force, i.e., simply the physical act involved in the act of sexual penetration, whether with

consent or not.” Haywood, 118 Ill. 2d at 273. The statute had recently been enacted to replace

repealed statutes defining rape and deviate sexual assault. Id. at 271. The supreme court held that

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the legislature intended to retain the definition of force from the repealed statutes. Id. at 273. The

former statutes contained limitations indicating that “the act was committed ‘against the will’ of

the victim, as in the rape statute, or that the victim was ‘compelled’ to submit to the act in question,

as in the deviate sexual assault statute.” Id. The supreme court found such a limitation inherent

in the term “force”:

“Although the definition of criminal sexual assault under section 12–13(a)(1) does

not refer to either compulsion or consent, this does not mean that consent of the victim is

irrelevant in determining whether there was an offense. In common understanding, if it is

said that one was forced to perform an act, it follows that the person’s act was

nonconsensual; and if one freely consents to the performance of an act upon oneself, clearly

that person has not been forced. Thus, although the prosecution is not required to prove

nonconsent formally, it is obvious that if the prosecution shows that there was an act of

sexual penetration by force, that evidence demonstrates that the act was nonconsensual.

To prove the element of force is implicitly to show nonconsent. Too, if force is established

it would be redundant to require a separate showing of nonconsent as part of the

prosecution’s case in chief.” Id. at 274.

Thus, Haywood stands for the proposition that proof of use of force is also proof of lack of consent.

The question remains as to whether it stands for the opposite as well—that is, does proof of lack

of consent also prove use of force?

¶ 64 In reviewing the Haywood decision, we note that such a proposition would have been

extraneous to the issue before the supreme court in that case. As noted, the court was considering

the definition of the term “force”; it was not addressing the meaning of the term “consent.”

Elevating lack of consent to “force” would have done nothing to show that the term “force” was

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not vague; indeed, it may have made it more vague. Additionally, it would have been inconsistent

with the legislative definition of “force,” which defines force in physical terms: “overcomes the

victim by use of superior strength or size, physical restraint, or physical confinement.” 720 ILCS

5/11.01 (West 2012).

¶ 65 Perhaps more importantly, we note that allowing lack of consent to satisfy the element of

force would render portions of section 11-1.20 of the Code (720 ILCS 5/11-1.20 (West 2012))

meaningless. In pertinent part, the statute makes it a crime to commit an act of sexual penetration

where (1) the offender uses or threatens force or (2) the offender “knows that the victim is unable

to understand the nature of the act or is unable to give knowing consent.” If lack of consent is

deemed to be force, subsection (2) serves no purpose. The State could simply prove nonconsent

and convict a defendant under subsection (1). It is axiomatic that a court must construe a “statute

to avoid rendering any part of it meaningless or superfluous.” People v. Marshall, 242 Ill. 2d 285,

292 (2011). Accordingly, based on the established precedent noted above, we are compelled to

hold that simply proving lack of consent is insufficient to establish that a defendant used force in

accordance with section 11-1.20(a)(1) of the Code (720 ILCS 5/11-1.20(a)(1) (West 2012)).

¶ 66 We turn now to the facts of this case. Regarding K.B.’s testimony, the trial court noted

that K.B. was a “severe drug user” and that there were numerous inconsistencies in her testimony.

It added that K.B. “had difficulty recalling many details of the event or what occurred immediately

thereafter.” Moreover, when interviewed by the police on the day after the incident, K.B.

fabricated many parts of her story. The trial court expressly rejected K.B.’s testimony that

defendant physically forced her to ingest heroin, stating it could not tell whether she was “lying

about being forced to consume additional heroin or whether her memory [was] obscured by her

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drug use.” However, the trial court did state that it found K.B. “credible as to the charges

themselves.”

¶ 67 Nevertheless, the trial court did not base its finding regarding the use or threat of force on

K.B.’s testimony about the offense. Instead of citing K.B.’s testimony regarding what occurred in

the bathroom, the trial court held: “The use of force as to that count is the nonconsensual nature of

the act.” The court then went on to state that “[i]n People v. Haywood, 118 Ill. 2d 263, the Illinois

Supreme Court found that non-consent to be [sic] the equivalent of force.” However, as explained

above, Haywood does not stand for this proposition. Moreover, existing precedent in Illinois

establishes that “A conviction of criminal sexual assault cannot be sustained by establishing merely

that the victim did not consent.” Mpulamasaka, 2017 IL App (2d) 130703, ¶ 74; see also

Alexander, 2014 IL App (1st) 112207, ¶ 52; Johnson, 743 F.3d 196, 202-03. Accordingly, the trial

court’s finding regarding force was based on a misinterpretation of the Haywood decision.

Properly applying existing precedent would have required the trial court to assess whether K.B.’s

testimony about what occurred in the bathroom was sufficient to establish force. Indeed, due

process required that it do so. See Hernandez, 2012 IL App (1st) 092841, ¶ 64.

¶ 68 We find Nelson, 2020 IL App (1st) 151960, to be of considerable guidance here. In that

case, the defendant raised a defense of supervening cause to a charge of murder. The defendant

argued that the State had failed to disprove the existence of a supervening cause. The State bore

the burden of doing so. Id. ¶ 73. The reviewing court noted that the trial court made no mention

of the State’s burden despite making extensive findings. Id. ¶ 85. The trial court made an

ambiguous statement indicating it believed that but-for causation between the defendant’s actions

and the victim’s subsequent death would be sufficient to sustain the defendant’s conviction

regardless of the existence of a supervening cause. Id. ¶¶ 94-96. The Nelson court explained that

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this was not the law. Id. ¶¶ 96-100. The court concluded, “The trial court thus erred by failing to

consider whether the State had proven, beyond a reasonable doubt, the absence of a supervening

cause in [the victim’s] death.” Id. ¶ 104.

¶ 69 Such is the case here. The trial court in announcing its ruling did not mention the use of

force except in the context of it being inherent in the lack of consent. This led to the trial court

failing to address K.B.’s testimony regarding what transpired in the bathroom. While it is true that

a trial court is not required to expressly address every issue in its findings, here it made affirmative

statements indicating that it did not consider a crucial element when it based its use of force finding

solely on lack of consent and failed to mention K.B.’s testimony pertinent to this issue in its

entirety. See Hernandez, 2012 IL App (1st) 092841, ¶ 52 (“But our analysis is not based on the

trial court’s silence nor the absence of an explicit finding; we base our conclusion on the

affirmative matter showing that the trial court’s interpretation of the statute differed from that

which we pronounce today.”). The Hernandez court continued, “Moreover, we believe that the

reason the record contains no finding [regarding the] defendant’s knowledge *** is because the

trial court concluded that this element of knowledge was not required and agreed with the State

that it need not be proved.” Id. A similar error occurred in this case.

¶ 70 Moreover, we cannot find this error harmless. The omission of an error may be deemed

harmless where the evidence regarding that element is overwhelming. Id. ¶ 67. The evidence is

not overwhelming here. The only inculpatory evidence concerning what transpired in the

bathroom was K.B.’s testimony. The trial court also specifically rejected her testimony regarding

being forced to consume heroin immediately before the events in the bathroom due to her either

lying or being unable to recall because of her drug use.

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¶ 71 However, we also cannot say that the evidence was so lacking that the State did not prove

its case beyond a reasonable doubt under the appropriate standard of review. While it does not

appear that the trial court determined the weight to which K.B.’s testimony regarding what

transpired in the bathroom would have been entitled, when we assess the sufficiency of the

evidence, we are required to consider all of the evidence in the light most favorable to the State.

People v. Arndt, 351 Ill. App. 3d 505, 512 (2004). We then consider whether any rational trier of

fact could find the essential elements of the crime beyond a reasonable doubt. Id. Doing so here,

we determine that, viewing the evidence in the light most favorable to the State and crediting

K.B.’s testimony about the events in the bathroom, a rational trier of fact could have found all the

elements of both crimes of which defendant stands convicted proven beyond a reasonable doubt,

including that defendant used force. Additionally, for this reason, double jeopardy also does not

preclude retrial. People v. Drake, 2019 IL 123734, ¶ 21.

¶ 72 In sum, the trial court erred in concluding that the State proved the use or threat of force

by simply establishing a lack of consent. Under such circumstances, defendant’s conviction cannot

stand.

¶ 73 IV. CONCLUSION

¶ 74 In light of the foregoing, the judgment of the circuit court of Du Page County finding

defendant guilty of criminal sexual assault and aggravated criminal sexual assault is reversed. As

double jeopardy does not bar a new trial, this cause is remanded.

¶ 75 Reversed and remanded.

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