No. 2--95--1263
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit
OF ILLINOIS, ) Court of Lake County.
)
Plaintiff-Appellee, ) No. 95--CF--121
)
v. )
)
JORGE REVELO, ) Honorable
) John R. Goshgarian,
Defendant-Appellant. ) Judge, Presiding.
_________________________________________________________________
JUSTICE HUTCHINSON delivered the opinion of the court:
Defendant, Jorge Revelo, appeals from the trial court's orders
denying his various post-trial motions. Defendant was charged by
indictment with three counts of aggravated criminal sexual assault.
See 720 ILCS 5/12--13(a)(1), 12--14(a)(2) (West 1994). Following
a jury trial, defendant was found not guilty on counts I and III of
aggravated sexual assault; he was found guilty on count II (placing
his mouth on the complainant's vagina). The trial court sentenced
defendant to a seven-year term of imprisonment.
On appeal, defendant contends: (1) he was denied his right to
a public trial because the trial court excluded the members of his
family from the courtroom during the testimony of the complainant,
A.S.; (2) his conviction was supported by insufficient evidence
that he used force against A.S. or that A.S. suffered bodily harm;
(3) the trial court abused its discretion in denying defendant's
motion to suppress a statement he made after the police told him a
test had revealed the presence of his sperm within A.S.'s vagina,
where the police had not yet obtained the test results; and (4) the
trial court erred by preventing defense counsel from introducing
evidence that the interrogating police officer obtained two signed
statements from defendant before informing him of the charges
against him. We reverse and remand.
Defendant and A.S. had known one another since their childhood
in Mundelein, Illinois. Although the two were never romantically
involved, they were friends. Similarly, A.S.'s and defendant's
families were friendly and often socialized together. After A.S.'s
family moved to Round Lake, Illinois, she and defendant saw each
other less frequently. A.S. was 16 years old in December 1994.
On December 17, 1994, defendant, A.S., her friend Melissa
McGowan, and two of defendant's friends went out for the evening.
A.S. testified that before leaving McGowan took an "over-the-
counter cold remedy" called Nyquil. The plan for the evening was
to attend what A.S. described as a "quinceanera, a cotillion." By
the time the five youths arrived, the quinceanera was over.
Eventually the group decided to eat at an all-night restaurant.
According to A.S., they ordered shakes and shared a "basket of
fries and barbecued chicken wings." After eating, the group left
the restaurant. It was approximately 12:30 a.m. on December 18,
1994.
Because of the hour, defendant offered to allow McGowan and
A.S. to spend the night at his parents' home. A.S. and McGowan
were to sleep in the basement living room on a "pull-out" sleeper
sofa. A.S. and McGowan accepted the offer. Defendant's friends
dropped off A.S., McGowan, and defendant. The three sat in the
living room and started watching a movie.
Defendant, A.S., and McGowan drank alcoholic beverages. A.S.
stated defendant asked if she would like something to drink.
However, defendant testified that A.S. volunteered, "Man, I want to
get smashed." According to defendant, McGowan initially stated she
did not wish to drink. Defendant and A.S. went upstairs to the
kitchen. A.S. testified that while in the kitchen defendant asked
her if she had ever cheated on her boyfriend, Chuck. Defendant
attempted to kiss A.S. A.S. stated that she pushed defendant away
and he relented. Defendant testified he and A.S. each drank three
shots of whiskey; A.S. stated she drank two half shots. Upon
returning downstairs, the two learned McGowan had changed her mind
and now wished to have a drink. The three returned to the kitchen
and McGowan drank three shots of whiskey. Defendant testified he
and A.S. had "at least one more shot each"; A.S. stated that
defendant alone had another shot of whiskey. Once downstairs, A.S.
asked for and received a pair of defendant's shorts to wear. After
putting on the shorts, A.S. and McGowan went to sleep on the
sleeper sofa.
At this point, the accounts of defendant and A.S. diverge; we
relate A.S.'s testimony first. A.S. was lying between defendant
and McGowan. A.S. stated she awoke to find defendant rubbing her
hands. A.S. testified she did not give him permission to do so.
A.S. pulled her hand away, turned away from defendant, and "scooted
over by" the sleeping McGowan. A.S. testified that defendant then
"started to put his hands up my shorts." He then began rubbing
A.S.'s vagina. A.S. testified she did not give defendant
permission to do so and "told him to stop." A.S. tried to push
defendant away. In response, defendant put his finger inside
A.S.'s vagina. Again, A.S. testified she had not given him
permission to do so. A.S. stated defendant's action "hurt." She
placed her foot on defendant's hand and tried, albeit
unsuccessfully, to push his arm down. A.S. stated she told
defendant to stop "[t]hree or four times."
Defendant then stopped, stood up, and kneeled by the sleeper
sofa. A.S. testified that as defendant stood up she "scooted up by
[McGowan's] head." A.S. stated she tried to wake McGowan by
calling her by name and "pushing her in the head." McGowan did not
awaken.
While attempting to wake McGowan, A.S. felt defendant grab her
by the ankles and pull her towards him. As defendant pulled, A.S.
fell backwards, striking her head on a pole forming part of the
frame of the sleeper sofa. A.S. testified that as defendant tried
to pull down her shorts and undergarment she attempted to pull them
up. Moving A.S.'s hands away, defendant removed her shorts and
undergarment. A.S. was lying on her back. Grabbing her ankles
again, defendant pushed A.S.'s legs forward. Her knees came to
rest on either side of her head. Defendant pinned A.S. on the
sleeper sofa by placing his shoulders against the back of A.S.'s
knees and holding her legs. A.S. testified that being placed in
this position hurt. Although she pushed against defendant's head,
forehead, and shoulders, A.S. could not free herself. Defendant
inserted his tongue into A.S.'s vagina. A.S. testified she did not
give him permission to do so.
After defendant released her, A.S. again attempted to wake
McGowan. A.S. testified that she "started poking [McGowan] and
moving her." McGowan raised her head. A.S. shook McGowan.
McGowan's eyes appeared "glassy and she looked like she wasn't
there." After a "couple of seconds," McGowan's head fell back onto
the pillow. A.S. was crying.
A.S. also testified defendant penetrated her vagina with his
penis. However, defendant was found not guilty of the count of
aggravated criminal sexual assault premised on this allegation.
Hence, we need not set forth this testimony in detail. We do note
A.S. testified that when defendant finally stopped he stated, " 'Oh
my God, what am I doing?' "
Defendant's remembrance differed sharply. He testified that
as he was lying on the sleeper sofa he accidently touched A.S.'s
leg. He started rubbing her leg and back. According to defendant,
he and A.S. held hands for approximately two or three minutes and
"just basically looked at each other." Defendant reached inside
A.S.'s shorts with his hand. He testified A.S. did not respond in
any way during this period of time.
Defendant began rubbing A.S.'s vagina. He testified that "she
was like moaning. *** She said, 'No, I can't because of Chuck.' "
In response to A.S.'s statement, defendant ceased rubbing A.S.
According to defendant, A.S. initiated further contact. He
testified she placed her left leg on top of his right leg.
Defendant resumed rubbing A.S.'s left leg and, eventually, her
vagina. He stated A.S. began "moaning" again. Defendant testified
A.S. repeated that " 'I can't because of Chuck.' " Defendant
continued. He removed A.S.'s shorts and underwear and performed
oral sex on A.S. Defendant stated A.S. moaned throughout but said
nothing.
Afterwards, according to both A.S. and defendant, A.S.
retreated into a corner of the basement living room and started to
cry. McGowan awoke. She went to A.S.'s side. With McGowan's
assistance, A.S. dressed in the downstairs rest room. A short time
later, defendant drove McGowan and A.S. to Chuck's home. A.S.
testified that both before and during the drive to her boyfriend's
home defendant repeatedly apologized to her; defendant remembered
making a single apology.
Defendant's brother, Rafael Revelo, testified that he returned
home at approximately 4 a.m. on December 18, 1994. Rafael Revelo
stated he observed defendant, McGowan, and A.S. lying on the
sleeper sofa. Rafael believed the three were asleep.
Several witnesses testified to events occurring in A.S.'s home
on the evening of December 18, 1994. On that evening defendant--
accompanied by two of his brothers, Gerardo Revelo and Carlos
Revelo, along with their father, Alfredo Revelo--visited A.S.'s
home. A.S. testified defendant stated "he just touched me." A.S.
then accused defendant of being a liar. She testified they both
started to cry and A.S. left the room. Alfredo Revelo testified
that defendant stated he did not touch A.S. On cross-examination,
the father testified he asked defendant if he had penetrated A.S.
and that defendant had replied, "no." Gerardo Revelo testified
that during the meeting at A.S.'s home "[i]t was dead silence." He
testified defendant "didn't say anything. He just sat there."
A.S. was examined by Carol Newman, M.D., on the morning of
December 19, 1994. Doctor Newman testified that she discovered the
back of A.S.'s head was tender to the touch. The tender area
corresponded to the portion of A.S.'s head that struck the frame of
the sleeper sofa. A form prepared by the doctor indicated A.S.'s
vagina had been penetrated with a penis; it also stated there had
been no digital or "oral copulation of genitals."
Tamara Burr, a registered nurse, assisted during Doctor
Newman's examination. Nurse Burr testified that the back of A.S.'s
head was red. The nurse also testified that she did not ask A.S.
any questions about oral sex. However, on cross-examination, Nurse
Burr stated she did ask A.S. whether there had been "any oral or
rectal penetration." A.S. answered, " 'no.' " On redirect, the
nurse revealed that A.S.'s mother had been present when A.S. denied
the occurrence of oral penetration. A.S. retracted her denial
after her mother left the examining room.
A.S. described herself as being 5 feet 1 inch tall and
weighing between 98 and 103 pounds. She also stated defendant is
taller and heavier than she.
On January 13, 1995, Detective Richard Chiarello of the Round
Lake Beach police department questioned defendant in an interview
room at the police department. Chiarello testified he had a
warrant issued for defendant's arrest. Chiarello visited
defendant's home and asked defendant to come to the police station
and answer some questions. Defendant agreed. Chiarello opined
that defendant "was very calm and cooperative." The detective
testified defendant was not served with the arrest warrant until
after he made the written statements.
Defendant and Chiarello remembered the commencement of the
interview differently. The detective testified he began the
interview by reading defendant the Miranda warnings (see Miranda v.
Arizona, 384 U.S. 436, 467-74, 16 L. Ed. 2d 694, 719-23, 86 S. Ct.
1602, 1624-28 (1966)) from a "preprinted form." After reading
defendant the warnings, Chiarello asked defendant, " '[h]aving
these rights in mind, do you wish to speak with me?' " According
to Chiarello, defendant responded that he would. Conversely,
defendant testified Chiarello's first action upon entering the
interview room was to ask, " 'You know why you're here, don't
you?' " " 'Yes, I think so,' " defendant replied. Following some
conversation establishing that defendant knew A.S., defendant was
handed a document entitled "Miranda Warnings." (Emphasis added.)
Defendant testified he did not recall at what point in time he
first saw the document. According to defendant, Chiarello read
this document out loud. Again, according to defendant, Chiarello
instructed defendant to sign the document. Defendant signed the
document.
Chiarello testified to the circumstances surrounding the
interview. He stated defendant never said he did not wish to speak
to the detective. Defendant never asked to speak to an attorney.
Chiarello stated he made no promises to defendant. The detective
testified he neither forced nor coerced defendant in any way.
Chiarello stated he never raised his voice to defendant. According
to the detective, defendant was calm, cooperative, and comfortable
during the interview. However, Chiarello stated defendant began to
cry after giving his first written statement.
Defendant also related the circumstances of the interview. He
stated he was nervous, scared, and his legs were shaking.
Defendant testified he "had no idea what to do." He stated he was
in the interview room 15 minutes before saying anything concerning
the events of December 18, 1994. After defendant spoke with
Chiarello for approximately 30 to 45 minutes, the detective asked
defendant to make a written statement. He agreed. As defendant
composed the first statement, Chiarello left to get defendant
lunch.
Chiarello attempted to obtain a second written statement.
Defendant completed his first written statement. Chiarello left
the interview room to read the statement. In the statement,
defendant admitted only to putting his finger in A.S.'s vagina.
Chiarello returned. In alluding to the results of a sexual assault
kit that had been performed on A.S., the detective stated, " 'Why
would it be that your semen would be found in [A.S.'s] vagina if
you only put your finger in her vagina?' " Defendant largely
corroborated Chiarello's testimony on this point. Defendant
testified the detective told him "a rape kit was done on [A.S.] ***
and he said, 'Why would it say--that your semen was in the vaginal
swab of [A.S.]?' " Both defendant and Chiarello agree that the
detective asked defendant to give a second written statement in
light of the inconsistencies between the "results" of the sexual
assault kit and the first statement.
Chiarello admitted that, when he commented on the possible
presence of defendant's semen in A.S.'s vagina, the detective did
not know the results of the sexual assault kit. A hospital
laboratory report revealed that A.S.'s genital culture contained no
trichomonads (i.e., flagellated protozoans) and, a fortiori, no
sperm.
Defendant gave a second written statement. In this statement
he admitted "touch[ing] [A.S's] vagina with my mouth." Defendant
also stated A.S. repeatedly said "no" and asked him to stop.
Defendant did not believe he penetrated A.S.'s vagina; he did admit
to placing his penis on top of her vagina.
Before trial, defendant filed a document setting forth his
potential witnesses. The document listed, inter alia, defendant's
father and his brothers Rolando, "Jerry" (whose given name is
Gerardo), and Carlos.
Prior to A.S.'s trial testimony, the State moved to exclude
all persons other than defendant, his counsel, and a victim
counselor. Defense counsel immediately objected. He argued that
defendant's mother, father, and brothers had a direct interest in
the cause. Therefore, defense counsel asserted, they could not be
excluded. See 725 ILCS Ann. 5/115--11 (Smith-Hurd Supp. 1996)
(stating that parties who, in the trial court's opinion, have a
direct interest may not be excluded when a minor victim of a sexual
crime testifies). The trial court granted the State's motion. The
media were permitted to remain. However, the court failed to find
expressly whether defendant's mother, father, and brothers
possessed a direct interest in the cause.
Defendant's first contention is that he was denied his right
to a public trial because the trial court excluded the members of
his family from the courtroom during the testimony of A.S. The
Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/100--1 et
seq. (West 1994)) addresses a trial court's authority to close a
criminal trial during a minor complainant's testimony. Section
115--11 of the Code provides that "where the alleged victim of the
offense is a minor under 18 years of age, the court may exclude
from the proceedings while the victim is testifying, all persons,
who, in the opinion of the court, do not have a direct interest in
the case, except the media." (Emphasis added.) 725 ILCS Ann.
5/115--11 (Smith-Hurd Supp. 1996). The threshold question raised
by the present case is whether a section 115--11 closure must
comport with both the section itself as well as the United States
Supreme Court's limitations on the closing of judicial proceedings.
See, e.g., Waller v. Georgia, 467 U.S. 39, 81 L. Ed. 2d 31, 104 S.
Ct. 2210 (1984).
The Illinois Supreme Court recently held that a trial judge
acting pursuant to section 115--11 need only satisfy the
requirements of the section. People v. Falaster, 173 Ill. 2d 220,
228 (1996). The court interpreted the phrase "except the media" as
requiring a court acting pursuant to the section to permit the
media to attend the victim's testimony. Because the media was
"allowed full and uninhibited access to the proceedings[,] *** none
of the evils of closed trials [were] implicated in the present
case." Falaster, 173 Ill. 2d at 228. We note that the trial court
in Falaster "did not impose any restrictions on the media."
(Emphasis added.) Falaster, 173 Ill. 2d at 228. Therefore, if a
trial court excludes the media--or, indeed, if any nontraditional
restrictions are placed on the media's ability to report on a
criminal proceeding--section 115--11 is insufficient to sanction
the trial court's ruling; in such a situation, courts must comply
with the limitations enunciated by the United States Supreme Court.
We turn then to the requirements of section 115--11. First,
notwithstanding the trial court's opinion, the media and its
representatives must be permitted to attend, document, and report
the proceeding. Second, section 115--11 permits a trial court to
exclude all persons determined by the court to lack a direct
interest in the outcome of the proceeding. Thus, "those persons
who do have a direct interest in the case, such as a defendant's
immediate family, may not be excluded." (Emphasis in original.)
People v. Benson, 251 Ill. App. 3d 144, 149 (1993). In Benson, the
court stated a trial court acting pursuant to section 115--11 may
"properly exclude*** only those spectators whose connection to the
case on trial is tenuous or whose presence simply reflects their
curiosity about the *** proceedings." Benson, 251 Ill. App. 3d at
149. We adopt this definition. To Benson we add the following: a
spectator whose curiosity is based on the nature of the proceedings
themselves likely has no direct interest; however, a direct
interest is more likely to exist if a spectator's interest is
predicated on a relationship with the defendant predating the
commencement of the proceedings.
In the present case, the trial court failed to follow the
requirements of section 115--11. As in Falaster, the media were
permitted to attend fully. Therefore, no danger of a closed trial
existed. However, the trial court failed to make an express
finding concerning the interest of defendant's parents and
siblings. Under the facts established by this record, it would be
Orwellian to describe as tenuous the connection between these
parents or these siblings and the criminal trial of the defendant.
We will not do so. Additionally, defendant's parents and siblings
were not "simply curious" because of the nature of the criminal
trial; they were present out of an interest--and likely a concern--
for defendant that long predated the beginning of this cause. To
the extent the trial court's ruling excluding defendant's parents
and siblings can be interpreted as an implicit finding that they
did not have a direct interest in defendant's trial, we hold this
to be an abuse of discretion. See People v. Garrett, 264 Ill. App.
3d 1089, 1094 (1994).
Notwithstanding any error in the application of section 115--
11, the trial court had the inherent authority to exclude
defendant's father, Alfredo Revelo, and his brothers, Gerardo,
Rafael, and Carlos Revelo. It is well settled that a trial court,
acting within its discretion, may grant a motion to exclude
witnesses from the courtroom. People v. Taylor, 244 Ill. App. 3d
460, 467 (1993), citing People v. Scott, 38 Ill. 2d 302, 306
(1967); see also In re C.P., 141 Ill. App. 3d 1018, 1022 (1986).
A trial court does not impinge upon a defendant's right to a public
trial when exercising this long-recognized power. People v.
Jenkins, 10 Ill. App. 3d 588, 590 (1973).
We hold that the trial court could have properly excluded
Alfredo, Gerardo, Rafael, and Carlos Revelo for the purpose of
preserving the integrity of the judicial process. Alfredo,
Gerardo, and Carlos Revelo, along with A.S., all witnessed and
potentially could have testified to the events that occurred in
A.S.'s home on the evening of December 18, 1994; additionally,
Rafael Revelo testified that he observed defendant asleep on the
sleeper sofa with McGowan and A.S. Consequently, it was
appropriate for the trial court to exclude these four members of
defendant's immediate family who were present during events at
issue in the proceeding. See People v. Byer, 75 Ill. App. 3d 658,
668-69 (1979) (stating purpose of exclusion "is to allow the trier
of fact to compare individual and independent accounts of the facts
of the case"); People v. Boles, 52 Ill. App. 3d 707, 709 (1977)
(stating purpose of rule is to prevent witnesses from tailoring
their testimony to previously introduced evidence); see also 75 Am.
Jur. 2d Trials §241 (1991). Although the trial court did not rely
on its inherent authority to exclude witnesses, this is an
appropriate ground on which to affirm the portion of the court's
order excluding Alfredo, Gerardo, Rafael, and Carlos Revelo. See
Messenger v. Edgar, 157 Ill. 2d 162, 177 (1993); Pavey Envelope &
Tag Corp. v. Diamond Envelope Corp., 271 Ill. App. 3d 808, 816
(1995) (stating that trial court's ruling may be affirmed on any
basis supported by record beyond grounds asserted by trial court,
even if asserted grounds were erroneous).
Our opinion should not be read as an avenue to exclude
directly interested immediate family members in all section 115--11
situations. On the contrary, our decision applies only to
situations in which members of a defendant's immediate family and
the complainant both observe or take part in the same events
bearing on the disposition of the cause. Absent this fact, the
trial court could not have excluded Alfredo, Gerardo, Rafael, or
Carlos Revelo pursuant to section 115--11.
Indeed, the boundaries of our section 115--11 holding were
reached and violated in the present case. Neither defendant's
mother nor his other siblings, Lucy Maria Revelo or Rolando Revelo,
took part in or testified to events bearing on the disposition of
this cause. Therefore, the court's inherent authority to exclude
witnesses did not justify the exclusion of defendant's remaining
immediate family. Under section 115--11, but not the United States
or Illinois Constitutions (see Falaster, 173 Ill. 2d at 227
(accepting proposition that media serves as a proxy for the public,
and, therefore, constitutional right to a public trial is preserved
if media are allowed to attend)), defendant's remaining immediate
family members have the right to attend A.S.'s testimony (see
Garrett, 264 Ill. App. 3d at 1093-94; Benson, 251 Ill. App. 3d at
149). We find that this is the clear and unequivocal intent of
section 115--11. Having already held it would be an abuse of
discretion to find that defendant's parents and siblings lacked a
direct interest in the proceedings against defendant, we turn to
the question of prejudice.
We hold that a defendant need not prove specific prejudice
when a trial court excludes persons with a direct interest in the
proceeding. As a practical matter, it is hard to envision what
would constitute prejudice in the wake of a section 115--11
violation. It would be difficult, if not impossible, to require a
defendant to prove, or the State to disprove, prejudice. However,
if section 115--11 is to confer anything beyond a meaningless right
without a remedy, defendants must conclusively be presumed to be
prejudiced by a section 115--11 violation. We so hold. This
holding is bolstered by the practice of presuming prejudice when
the constitutional guarantee of a public trial is violated. E.g.,
People v. Willis, 274 Ill. App. 3d 551, 554 (1995); Taylor, 244
Ill. App. 3d at 468. We see no reason why a different practice
should apply under section 115--11.
Our opinion does not confer on defendant's mother, Lucy Maria,
or Rolando an absolute right to be present during A.S.'s testimony.
On remand, the members of defendant's immediate family who did not
take part in or testify to events bearing on the disposition of
this cause may only be excluded during A.S.'s testimony if the
trial court expressly finds there is a significant likelihood that
such family members would relate the substance or tone of A.S.'s
testimony to those members of the Revelo family who could be called
as witnesses. The trial court must support such a finding with
definite and articulable reasons why defendant's mother, Lucy
Maria, or Rolando are more likely than any other immediate family
member to act as a conduit between A.S.'s testimony and the other
members of the Revelo family. Cf. C.P., 141 Ill. App. 3d at 1022
(because it is within the discretion of a trial court to instruct
witnesses not to communicate their completed testimony to other
witnesses waiting to be called, it necessarily follows that similar
restrictions or even exclusion of third parties are appropriate
where the trial court reasonably believes that they will improperly
communicate testimony to witnesses waiting to be called). Simply
because defendant's mother, Lucy Maria, and Rolando are closely
related to defendant is insufficient. The existence of this type
of relationship is the raison d'être for the right conferred by
section 115--11. Therefore, it would be absurd for the nature of
the relationship to be the basis for denying the right. We turn to
defendant's remaining contentions because they may recur in the
event of a retrial.
[The following material is nonpublishable under Supreme Court Rule
23.]
Defendant's second contention is that his conviction was not
supported by sufficient evidence that he used force against A.S. or
that A.S. suffered bodily harm. In assessing whether the evidence
against a defendant is sufficient to prove guilt beyond a
reasonable doubt, a reviewing court must determine " '[w]hether,
after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.' "
People v. Collins, 278 Ill. App. 3d 515, 519 (1996), quoting
Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99
S. Ct. 2781, 2789 (1979). Insufficient evidence does not justify
setting aside a conviction unless the proof is so improbable or
unsatisfactory that a reasonable doubt about the defendant's guilt
exist. People v. Carini, 254 Ill. App. 3d 1, 9 (1993), citing
People v. Furby, 138 Ill. 2d 434, 455 (1990).
We find the record contains sufficient evidence that defendant
used force against A.S. The credibility of a witness and the
weight given to her testimony are determinations entrusted
exclusively to the discretion of the fact finder. See, e.g.,
People v. Rivera, 166 Ill. 2d 279, 291 (1995). Such determinations
may not be set aside unless no rational finder of fact could have
found beyond a reasonable doubt the essential elements of the
offense. People v. Peeples, 155 Ill. 2d 422, 487 (1993). A.S.'s
testimony is replete with references to her attempts to stop
defendant's advances. She broke contact and moved away from
defendant when she awoke to find he was holding her hand. A.S.
attempted to remove defendant's finger from her vagina by using her
leg as a lever. She also tried to push against defendant after he
pinned her to the sleeper sofa. A.S. testified defendant grabbed
her by the ankles and pulled her down the sleeper sofa.
Additionally, A.S. testified she repeatedly told defendant to stop.
In light of this testimony and the preceding standard of review, we
must reject defendant's assertion that A.S.'s testimony was
"completely unbelievable." Based upon A.S.'s testimony, a rational
fact finder could have found beyond a reasonable doubt that
defendant used force against A.S. See People v. Eastland, 257 Ill.
App. 3d 394, 402 (1993), citing People v. Shott, 145 Ill. 2d 188,
202-03 (1991) (standing for proposition that a sex crime conviction
may be sustained without corroboration of victim's testimony); see
also 720 ILCS 5/12--12(d)(2) (West 1994) (stating that "force"
refers to accused overcoming victim by using superior "strength or
size, physical restraint or physical confinement").
We also find the record contains sufficient evidence that A.S.
suffered bodily harm. Both A.S. and defendant testified that A.S.
struck her head when defendant grabbed her ankles and pulled her
down. A.S. complained to Doctor Newman of a soreness located in
the area of her head that struck the frame of the sleeper sofa.
The doctor noted this area was tender to the touch. Additionally,
Nurse Burr testified this area of A.S.'s head was red. We reject
defendant's contention that the bruising and tenderness of the back
of A.S.'s head "is not the type of harm contemplated by the
legislature" in determining whether a complainant suffered bodily
harm. In the context of aggravated sexual assault, the term
"bodily harm" is defined in the same manner as under the battery
statute. People v. Jones, 273 Ill. App. 3d 377, 384 (1995), citing
People v. Haywood, 118 Ill. 2d 263, 277 (1987). The Illinois
Supreme Court has defined bodily harm as " 'some sort of physical
pain or damage to the body, like lacerations, bruises or abrasions,
whether temporary or permanent.' " Jones, 273 Ill. App. 3d at 384,
quoting People v. Mays, 91 Ill. 2d 251, 256 (1982). Utilizing this
definition, a rational fact finder could have determined beyond a
reasonable doubt that A.S. suffered bodily harm by virtue of either
the pain in the back of her head or the associated redness.
Defendant's third contention is that the trial court abused
its discretion in denying defendant's motion to suppress a
statement he made after the police deceptively inferred that a test
had revealed the presence of his sperm within A.S.'s vagina, where
the police had not yet obtained the test results. Essentially,
defendant argues that Chiarello's conduct rendered his second
statement involuntary. We disagree.
If a confession is obtained involuntarily, it is inadmissible.
E.g., People v. Melock, 149 Ill. 2d 423, 447 (1992). A statement
constituting a confession is voluntary if it is " 'made freely,
voluntarily and without compulsion or inducement of any sort, or
whether the defendant's will was overcome at the time he
confessed.' " Melock, 149 Ill. 2d at 447, quoting People v. Clark,
114 Ill. 2d 450, 457 (1986). We examine the totality of the
circumstances when making a voluntariness determination. Melock,
149 Ill. 2d at 447. A trial court's finding of voluntariness will
not be disturbed unless against the manifest weight of the
evidence, and a trial court's ruling on a motion to suppress will
not be overturned unless manifestly erroneous. People v. Miller,
173 Ill. 2d 167, 181 (1996).
Both defendant and Chiarello concur that Miranda warnings were
given. Although defendant asserts he was instructed to sign the
Miranda waiver by Chiarello, the detective's testimony contradicts
this assertion. The trial court was entitled to credit Chiarello's
version. It is uncontroverted defendant signed the waiver;
additionally, Chiarello testified defendant verbally acknowledged
his understanding of the Miranda warnings. Defendant and Chiarello
depicted defendant's mental state differently. Defendant testified
he was shaking, nervous, and scared; conversely, Chiarello
described defendant as calm, cooperative, and comfortable during
the interview. Again, it was permissible for the trial court to
believe Chiarello rather than defendant. The detective admitted
defendant started to cry after giving the first statement.
However, neither witness asserted defendant requested the presence
of an attorney. Therefore, we hold that the trial court's finding
of voluntariness was supported by the manifest weight of the
evidence.
Chiarello's use of the phantom results from the sexual assault
kit does not alter our holding. Police deception is but one factor
to be considered when reviewing a ruling on a motion to suppress
based on voluntariness. People v. Martin, 102 Ill. 2d 412, 426-27
(1984); People v. MacFarland, 228 Ill. App. 3d 107, 117 (1992); see
also 1 W. LaFave & J. Israel, Criminal Procedure §6.2, at 446-67
(1984) (stating as a general matter, courts do not find that,
without additional circumstances calling into question the
voluntariness of confessions, acts of police trickery render
confessions involuntary). In light of defendant and Chiarello's
conflicting testimony; the relatively brief length of the
interrogation; the lack of any allegation that Chiarello directed
force, coercion, or hostility towards defendant, we hold that the
trial court's denial of defendant's motion to suppress was not
manifestly erroneous.
Defendant's fourth contention is that the trial court abused
its discretion by preventing defense counsel from introducing
evidence that Chiarello obtained the statements before informing
defendant of the charges against him. We disagree. It is true
that after a trial court determines a confession is voluntary and
admissible, a defendant still has the right to present the jury
with evidence affecting the credibility and weight to be given the
confession. People v. Gilliam, 172 Ill. 2d 484, 512-13 (1996).
However, this right does not alter the precept that a ruling on the
admission of evidence is entrusted to the trial court's discretion
and shall not be disturbed absent an abuse of that discretion.
Gilliam, 172 Ill. 2d at 513. We may not have ruled as did the
trial court on this issue; however, mere disagreement is an
improper basis for reversing a trial court on a question of
evidence admissibility.
[The preceding material is nonpublishable under Supreme Court Rule
23.]
For the foregoing reasons, the judgment of the circuit court
of Lake County is reversed, and the cause is remanded.
Reversed and remanded.
McLAREN, P.J., and DOYLE, J., concur.