People v. Denbo
| Decision Date | 19 April 2007 |
| Docket Number | No. 4-05-0516.,4-05-0516. |
| Citation | 372 Ill. App.3d 994,868 N.E.2d 347 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Kelly J. DENBO, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
A jury found defendant, Kelly J. Denbo, guilty of aggravated criminal sexual assault (720 ILCS 5/12-14(a)(2) (West 2004)) in that she persisted in an act of vaginal penetration after the victim withdrew her consent. The trial court sentenced defendant to imprisonment for seven years. She appeals on the ground of insufficiency of the evidence, arguing that the State failed to prove the victim's withdrawal of consent or her own use of force.
Defendant put her hand into R.H.'s vagina during otherwise consensual sexual relations. R.H. pushed defendant twice— harder the second time—intending to signify that she no longer consented to the sexual penetration. Defendant removed her hand from R.H.'s vagina on the second push. Looking at the evidence in a light most favorable to the prosecution, we conclude that no rational trier of fact could find, beyond a reasonable doubt, that the first push objectively communicated to defendant a withdrawal of consent. The State failed to prove the element of force. Therefore we reverse the trial court's judgment.
The information charged that on September 27, 2004, defendant committed aggravated criminal sexual assault (720 ILCS 5/12-14(a)(2) (West 2004)) "in that[,] by the use of force[,][s]he placed her fist into the vagina of [R.H.] and, in doing so, * * * caused bodily harm, vaginal trauma, to * * * [R.H.]."
At trial on April 20, 2005, the State called R.H., the adult complainant, as its first witness. Because she was extremely hard of hearing, practically deaf, she testified through an interpreter. R.H. first met defendant in June 2004 at a nursing home, where they both worked. They developed a romantic relationship. On September 27, 2004, they both had the day off and spent it together, taking defendant's one-year-old nephew and three-year-old niece to McDonald's, Rockome Gardens, and a video store. Afterward, R.H. stayed for a cookout at defendant's house in Tuscola. Defendant drank beer while grilling the steaks, but R.H. abstained from alcohol that evening. After supper, R.H. went to defendant's bedroom "and just kept waiting and waiting and waiting" while defendant talked on the telephone. "[O]kay," R.H. thought. "[She] waited a little longer[ ] and * * * thought [that defendant] was going to give the kids a bath." Eventually, she told defendant she was "go[ing] to the store [to] get a diet [C]oke and would be right back." Defendant appeared to be "out of it": "she was very slow to respond and * * * slurred her words." Upon returning from the store, R.H. noticed the lights were off in the bedroom—they were on when she left—and three candles were burning. She did not see defendant. R.H. lay down, clothed, on defendant's bed. Defendant entered the bedroom. "She had a robe on," R.H. testified,
Here is what happened next, according to R.H.:
"Well, I was [lying] on the bed[,] and she was on me—kind of straddled me[—]and kissing my face[,] and then she pulled me forward. She grabbed both my arms[,] and then she took off my top and my bra[,] and all of that was within—say[,] a short period of time. Then she shoved me, and she was rough. I thought, [H]um. I had no clue as to what was going on, and then she took my shorts off and my underwear off.
Q. What happened next?
A. Well, then she went right through my vagina. I didn't scream. I didn't do anything. I knew the kids were asleep. Knew the kids were asleep[,] and she kept pushing me.
Q. What did you do to her?
A. And it continued[,] and then the second time I tried to push her away[,] and it was hard enough. I was able to get up. I went to the bathroom[,] and I was bleeding.
Q. Let's back up a little bit. You indicated you were [lying] on the bed. How was Kelly on you?
A. Kelly was kneeling on top of me and had my legs spread apart so she was in between my legs.
Q. You said she `went through' you. Explain what was used to go through you?
A. Right there, her hand. (Indicating)
Q. Where did she place her hand?
A. Went through the pelvic area. I tried to push her back, but she continued[,] and she just kept continuing, and then I pushed her again, and then I went to the bathroom, and I was bleeding. I came back out and was looking for her[,] and she was outside at that point and crying.
Q. You went to the bathroom and noticed you were bleeding?
A. Yes.
Q. Where was the bleeding from?
A. Well, the reason I was bleeding is because she hurt me. She used her hand to go direct[ly] through my vagina, yes, my vagina.
Q. When was the next time you saw the [d]efendant?
A. Well, I went to the bathroom—I went into the bathroom[,] and I came back out and was talking to her[,] and I asked her at that point why she did it. She said she didn't know why she hurt me. I continued to ask her. I stayed at Kelly's because I needed an answer from her as to why she hurt me."
Because R.H. was deaf, she and defendant often communicated with one another in writing. R.H. offered—and the trial court admitted into evidence, over defendant's foundational objection—eight handwritten letters R.H. had received from defendant. According to R.H., defendant wrote People's exhibit No. 1 on September 27, 2004, shortly after the incident. It says:
R.H. testified she received People's exhibit No. 2 on September 28, 2004. That letter reads as follows:
(Emphasis in original.)
R.H. testified that defendant sent her the remaining letters in October 2004 through an intermediary at work. People's exhibit No. 3 reads as follows:
People's exhibit No. 4 appears to consist of three letters. Here is the first one:
The second letter in People's exhibit No. 4 reads as follows:
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