People v. Kemblowski

592 N.E.2d 282, 227 Ill. App. 3d 758, 169 Ill. Dec. 795, 1992 Ill. App. LEXIS 438
CourtAppellate Court of Illinois
DecidedMarch 26, 1992
Docket1-90-2911
StatusPublished
Cited by3 cases

This text of 592 N.E.2d 282 (People v. Kemblowski) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Kemblowski, 592 N.E.2d 282, 227 Ill. App. 3d 758, 169 Ill. Dec. 795, 1992 Ill. App. LEXIS 438 (Ill. Ct. App. 1992).

Opinion

PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

Following a jury trial, the defendant Daniel Kemblowski was convicted of aggravated criminal sexual assault and sentenced to a prison term of 20 years. He contends on appeal that he was not proved guilty beyond a reasonable doubt. He also contends that he was prejudiced by the introduction of evidence that should have been excluded pursuant to the Illinois rape shield statute (Ill. Rev. Stat. 1985, ch. 38, par. 115 — 7(a)), that he was improperly impeached with evidence of a subsequently reversed conviction and that he is entitled to a new sentencing hearing.

The 14-year-old complainant testified that she and a group of her friends left school at 2 p.m. on June 3, 1986, and went to a forest preserve located at 107th Street and LaGrange Road in Hickory Hills. They began drinking beer; the complainant drank less than one can. She then went home, changed her clothes and returned to the forest preserve at 5:45 p.m.

While the complainant was sitting at a picnic table talking to her friends, the defendant walked over to them and offered them whiskey. He was dressed in blue jeans, black leather boots, a Harley-Davidson T-shirt and a black leather vest. He had a beard and a mustache and tattoos on his arm and left ear lobe. Although she initially refused, the defendant persuaded the complainant to take a sip of whiskey. When the group ran out of beer, the defendant volunteered to go to a liquor store for more. He said he needed someone to ride with him on his motorcycle to carry the beer. The defendant asked one of the complainant’s friends, who declined, then asked the complainant. She agreed and the two drove to a nearby liquor store where the defendant purchased beer and cigarettes.

On the way back, the defendant turned off into a different section of the forest preserve at 103rd Street and LaGrange Road. When the complainant protested that she wanted to return to her friends, the defendant said he was thirsty and wanted to have a beer. The defendant drove into an open trail, parked the motorcycle and began to drink a can of beer. When the complainant said that she had to get back to her friends, the defendant responded, “All right” and poured the beer onto the ground. The complainant testified that at that point, the defendant grabbed her, threw her to the ground and asked if she was a virgin. She responded affirmatively. The defendant did not object to this testimony. According to the complainant, the defendant took out a knife, held it to her neck and forced her to perform acts of oral and vaginal intercourse. As the defendant took off the complainant’s shirt, it ripped under both arms. After the sexual acts were completed, the defendant wiped his penis on the complainant’s shirt and told her to get dressed. As she did so, she grabbed a rock, struck the defendant on the head and ran out of the woods onto the highway. There she flagged down a motorist and told him that she had been raped.

Dennis Zaruszak, the motorist, testified that he was driving northbound on LaGrange Road when he saw a young girl run out of the woods waving her arms. He stopped and she entered the car. She was breathing heavily, appeared to be very upset and looked like she had just gotten dressed. She asked him to get her out of there and told him that she had just been raped. He drove her to the Hickory Hills police station.

Officer Emmett O’Neill spoke with the complainant at the police station. He testified that she was crying and breathing very rapidly. Her eyes were red, her clothing was torn and dirty and her hair was messed. After the complainant’s mother arrived, the complainant was taken to Christ Hospital.

Dr. Barbara McCreary testified that she examined the complainant and found multiple fresh scratches on her back and arms, multiple bruises on her chest and abdomen and skin discoloration on her neck and both cheeks due to trauma. Dr. McCreary also testified that the complainant’s hymen was disrupted. The defendant did not object to this testimony.

On June 6, 1986, the police arrested the defendant and recovered a knife from his person.

The 30-year-old defendant testified that on the day of the incident he went to the forest preserve and met a group of people who were drinking. After some time, he and a woman named April went to another part of the forest preserve and engaged in sexual intercourse. When the defendant returned to the group, he saw the complainant sitting at a picnic table with her friends. She smiled at him, so he took a bottle of whiskey and went to talk to her. They drank the whiskey and smoked a marijuana cigarette. The defendant offered to take the complainant for a ride on his motorcycle. She told him to wait while she went home and changed clothes.

When the complainant returned, she and the defendant rode on his motorcycle to a liquor store where the defendant bought beer and cigarettes. They drove to another area of the woods, where they engaged in sexual intercourse. According to the defendant, the complainant consented to have sex with him but became argumentative afterward. They continued to argue during the ride back until the defendant told the complainant to get off of the motorcycle and walk.

After the defendant testified, the State informed the jury that in 1983 the defendant was convicted of a felony in Illinois and received an 18-month period of conditional discharge; in 1984 he was convicted of a felony in Florida and received a prison term of one year and one day; and in 1987 he was convicted of another felony in Illinois and received a 10-year sentence. The jury was instructed that it could consider the prior convictions in determining the defendant’s credibility.

In closing argument, the prosecutor referred to the complainant’s testimony that the defendant “asked if she was a virgin and she told him, ‘Yes, I am.’ ” The defendant did not object to this argument.

During the sentencing hearing, the trial court considered the defendant’s 1987 conviction for aggravated criminal sexual assault in sentencing the defendant to a 20-year term. The 1987 conviction was subsequently reversed and remanded by this court in People v. Kemblowski (1990), 201 Ill. App. 3d 824, 559 N.E.2d 247.

The defendant first contends that he was not proved guilty beyond a reasonable doubt. Essentially, he contends that the complainant’s testimony that the sexual activity occurred without her consent was incredible.

In People v. Schott (1991), 145 Ill. 2d 188, 203, 582 N.E.2d 690, the Illinois Supreme Court held that review of all criminal convictions, including sex offenses, is governed by the reasonable doubt test articulated in People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267, cert, denied (1985), 474 U.S. 935, 88 L. Ed. 2d 274, 106 S. Ct. 267. According to Collins, criminal convictions will not be reversed for insufficient evidence unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt.

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People v. Carlson
663 N.E.2d 32 (Appellate Court of Illinois, 1996)
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633 N.E.2d 160 (Appellate Court of Illinois, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
592 N.E.2d 282, 227 Ill. App. 3d 758, 169 Ill. Dec. 795, 1992 Ill. App. LEXIS 438, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-kemblowski-illappct-1992.