People v. McIntosh, 5-97-1001.

CourtUnited States Appellate Court of Illinois
Citation305 Ill. App.3d 462,238 Ill.Dec. 789,712 N.E.2d 893
Docket NumberNo. 5-97-1001.,5-97-1001.
PartiesThe PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Mark E. McINTOSH, Defendant-Appellant.
Decision Date01 June 1999

712 N.E.2d 893
305 Ill.
App.3d 462
238 Ill.Dec.

The PEOPLE of the State of Illinois, Plaintiff-Appellee,
Mark E. McINTOSH, Defendant-Appellant

No. 5-97-1001.

Appellate Court of Illinois, Fifth District.

June 1, 1999.

Rehearing Denied June 25, 1999.

712 N.E.2d 895
Daniel M. Kirwan, Deputy Defender, E. Joyce Randolph, Assistant Defender, Office of the State Appellate Defender, Mount Vernon, for Appellant

Mike Rowland, State's Atty., Benton, Norbert J. Goetten, Director, Stephen E. Norris, Deputy Director, Kevin Sweeney, Staff Atty., Office of the State's Attys. Appellate Prosecutor, Mount Vernon, for Appellee.

Justice HOPKINS delivered the opinion of the court:

Defendant appeals from his April 10, 1996, convictions of home invasion (720 ILCS 5/12-11 (West 1996)) and criminal sexual assault (720 ILCS 5/12-13 (West 1996)). The trial court sentenced defendant to 10 years' imprisonment on each offense, the sentences to be served consecutively. Additionally, the trial court stated that as a part of defendant's sentence, he was to serve at least 85% of the sentence for criminal sexual assault prior to release, pursuant to the Illinois truth-in-sentencing requirements. See 730 ILCS 5/3-6-3(a)(2) (West 1996) (as amended by Public Act 89-404, effective August 20, 1995). This court dismissed defendant's first appeal and remanded the case back to the trial court for a hearing on defendant's motion for new trial or reduction of sentence. The trial court denied that motion on October 16, 1997.

In this appeal, defendant argues that (1) he was not proven guilty beyond a reasonable doubt of criminal sexual assault, (2) he was denied the effective assistance of counsel because his attorney failed to file a motion for discharge for a violation of the speedy-trial statute (725 ILCS 5/103-5 (West 1996)) and because trial defense counsel failed to offer jury instructions on the lesser offense of criminal sexual abuse, (3) his conviction of criminal sexual assault must be vacated as a lesser-included offense of the charge of home invasion, and (4) he is entitled to credit for good time on his sentence of imprisonment. We affirm the convictions and sentence of imprisonment, but we modify the portion of defendant's sentence entered under the truth-in-sentencing provisions.


On October 27, 1995, defendant was indicted for aggravated criminal sexual assault

712 N.E.2d 896
(720 ILCS 5/12-14 (West 1994)) and home invasion. The indictment for home invasion charged that defendant, not being a peace officer, "knowingly, and without authority, entered the dwelling of [the victim, hereinafter referred to as L.G.] * * * knowing [L.G.] to be present within that dwelling and intentionally caused injury to [L.G.] in that he sexually assaulted [L.G.] * * *." On November 1, 1995, the case was set for arraignment, but defense counsel requested that the arraignment be continued in order for him to do research concerning the indictment

On November 15, 1995, the State filed a motion for special discovery, requesting, inter alia, blood samples from defendant. The matter was heard on November 22, 1995. The court orally granted the State's request and admonished the State to draft the order as soon as possible, since the trial judge would be out of town the following two weeks. The order granting the State's motion was entered on December 13, 1995.

On January 17, 1996, defendant's attorney filed a motion to withdraw as counsel, which was denied the next day with defendant's acquiescence. On January 31, 1996, defendant filed six motions, which were decided on March 15, 1996. Defendant admits in his brief that 46 days of delay are chargeable to him based upon his filing of the above-described motions.

On February 2, 1996, the State filed a motion to continue the case, which was originally set for jury trial on February 6, 1996. The State requested an additional 60 days to obtain the laboratory analysis of defendant's blood samples. In the motion, the State alleged that it exercised due diligence in submitting the blood samples to the State crime lab for DNA analysis. On February 5, 1996, the trial court granted the State's motion for continuance for 60 days.

The jury was selected on April 2, 1996, and the case proceeded to trial on April 4, 1996. Both defendant and the State agree that 171 days passed between defendant's arrest and his trial.

At trial, the following relevant evidence was adduced: L.G. testified that during the evening hours of October 12, 1995, she was with a friend, Roberta Frye, at a tavern in Benton, Illinois. At about 7:30 p.m., L.G. noticed defendant come into the tavern. L.G. and defendant had dated about 10 years earlier, and they had lived together at various times in the early to mid-1980s. L.G. testified that since then, she had not had any contact with defendant other than occasionally seeing him around Benton. Defendant's testimony about their prior relationship was essentially the same as L.G.'s; however, defendant testified that he and L.G. had a one-night consensual sexual encounter in October 1989.

L.G. testified that defendant sat at the table with L.G., Roberta, and another friend, although no one invited him to sit there. Defendant testified that he was invited to sit with the group. L.G. believed that defendant had been drinking before she saw him. L.G. drank alcohol at the tavern, but Roberta did not. Defendant was also drinking while at the tavern. L.G. and Roberta left the tavern about 9:30 that night. Defendant testified, and L.G. denied, that L.G. gave him a hug and a kiss before she left the tavern and that she invited him to visit her at home later that evening. Roberta and L.G. stayed at L.G.'s trailer for a while before Roberta left to go home. Roberta corroborated L.G.'s testimony about the events that occurred before Roberta left L.G.'s residence.

After Roberta left, L.G. took her dog outside. According to L.G.'s testimony, when she was reentering her trailer, defendant grabbed her from behind, put a knife to her face, and told her that he was tired of how L.G. refused to talk to him when he saw her. L.G. testified that she could not see the knife clearly and could not describe it. Defendant came into the trailer behind L.G., but L.G. did not invite him inside. L.G. described defendant as angry, and she testified that he frightened her. Inside the residence, defendant held onto L.G.'s clothing and continued to hold the knife up to her face. L.G. told defendant to let her go.

The next thing L.G. remembered was lying face down on her bed in her bedroom. She was naked and defendant was on top of her tying her hands behind her with something that felt like a sock. L.G. testified that her feet were also tied. Although she could not see defendant, she could tell that he was

712 N.E.2d 897
naked and had an erection. L.G. testified that defendant tried to, but could not, insert his penis all the way into her vagina, although his genitals came into contact with her genitals. L.G. testified that when defendant lay on top of her, he threatened to cut her face. Defendant then got up from the bed. L.G. testified that when she asked defendant why he always did this to her, he laughed and answered, "because I can."

Defendant then allowed L.G. to go to the bathroom, evidently untying her hands and feet. While she was in the bathroom, defendant left. After waiting a few minutes, L.G. came out of the bathroom and called Roberta. Roberta called the police, and shortly thereafter, two police officers arrived at L.G.'s trailer.

Benton police officer Kenny Cochrum testified that at about 11:20 p.m. on October 12, 1995, he responded to a call regarding a sexual assault at L.G.'s residence. When Cochrum arrived, L.G. answered the door. Cochrum described L.G. as crying and "traumatized." L.G. told Cochrum that defendant raped her and beat her. Cochrum noticed red marks, about ¾ of an inch wide, on L.G.'s wrists. Cochrum described the interior of L.G.'s trailer as "in total disarray." Cochrum surmised that the disorder was the result of a struggle, because the adjacent kitchen area was neat and clean. Cochrum transported L.G. to the Franklin Hospital and returned to the scene.

After Cochrum returned to L.G.'s residence, he was met by two crime-scene investigators from the Carbondale Crime Lab— John Lewis and Scott Rice. Lewis testified that he photographed the interior of the trailer, which he felt showed signs of a struggle, due to the number of items that appeared to have been knocked to the floor. Lewis collected L.G.'s clothing from her bedroom, hair and fiber samples, and an empty package of Basic Brands cigarettes. Both L.G. and Roberta testified that they did not smoke that brand of cigarette. Defendant's fingerprints were found on the package, and defendant admitted that he brought the package into the trailer with him.

Forensic scientist Suzanne Kidd testified that she compared pubic hairs recovered from L.G.'s residence to pubic hairs taken from defendant, L.G., and L.G.'s boyfriend, Scott Aud. Kidd testified that pubic hairs found in L.G.'s living room and bedroom were consistent with those of defendant but inconsistent with those of L.G. or Aud. Kidd also examined L.G.'s clothing. Kidd testified that the zipper on the jeans was broken, the seam next to the zipper was torn, and the shirt and the panties were torn.

Defendant testified that L.G. invited him to the trailer before she left the bar. Defendant testified that after he arrived at the trailer, he smoked his last cigarette while he and L.G. talked. According to defendant, he and L.G. then went to her bedroom, and they each took off their clothes. Defendant denied that he did anything without L.G.'s consent. Defendant testified that when L.G. went to the bathroom, that kind of "spoiled" the mood, they started arguing, and he left. Defendant admitted that he gave a statement to the police claiming that he had not been to...

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