People v. Brown

• Decision Date: 11 February 2013
• Docket Number: Docket No. 2–11–0303.
• Citation: 985 N.E.2d 582,2013 IL App (2d) 110303,368 Ill.Dec. 775
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Thomas A. BROWN, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2013 IL App (2d) 110303

985 N.E.2d 582

368 Ill.Dec. 775

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Thomas A. BROWN, Defendant–Appellant.

Docket No. 2–11–0303.

Appellate Court of Illinois, Second District.

Feb. 11, 2013.

Thomas A. Lilien and Jaime L. Montgomery, both of State Appellate Defender's Office, of Elgin, for appellant.

Louis A. Bianchi, State's Attorney, of Woodstock (Lawrence M. Bauer and Edward R. Psenicka, both of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

Justice BIRKETT delivered the judgment of the court, with opinion.

[368 Ill.Dec. 776]¶ 1 Following a jury trial, defendant, Thomas A. Brown, was convicted of involuntary manslaughter (720 ILCS 5/9–3(a) (West 2008)) and aggravated criminal sexual assault (720 ILCS 5/12–14(a)(2) (West 2008)) (predicated upon criminal sexual assault) (720 ILCS 5/12–13(a)(2) (West 2008)). He was sentenced to consecutive imprisonment terms of 5 years and 18 years, respectively. On appeal, defendant contends that the State failed to prove him guilty beyond a reasonable doubt of aggravated criminal sexual assault. For the reasons that follow, we affirm.

¶ 2 I. BACKGROUND

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

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

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

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

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

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

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

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

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

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

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

¶ 14 Marvel testified that he was one of the first responders to defendant's residence. Defendant was in the kitchen when Marvel arrived. Marvel and defendant were alone in the kitchen when the two had a conversation. Defendant told Marvel that, when he woke up, his girlfriend was lying “down next to him and she had puke coming from her mouth, so he contacted the police department.” Marvel then drove defendant to the McHenry County sheriff's office where he was interviewed on video by detectives. Upon entry into the interview room, defendant was advised by Detective Andrew Zinke that the room was equipped with video and audio equipment. Defendant told the detectives that he thought “someone gave her drugs or something.” Defendant would go on to make this claim for the next 7 1/2 hours, during which he reviewed the events of the previous night. He told the detectives that “she didn't look fucking right when she came in.” Defendant explained that he had known V.W. since the day before Easter and that he met her through an online...