People v. Mpulamasaka
| Decision Date | 06 January 2016 |
| Docket Number | No. 2-13-0703,2-13-0703 |
| Citation | 2016 IL App (2d) 130703 |
| Parties | THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. NSONI MPULAMASAKA, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Appeal from the Circuit Court of Lake County.
Honorable Daniel B. Shanes, Judge, Presiding.
OPINION
¶ 1 Following a jury trial, defendant, Nsoni Mpulamasaka, was convicted of aggravated criminal sexual assault in violation of section 12-14(a)(2) of the Criminal Code of 1961 (720 ILCS 5/12-14(a)(2) (West 2010)). The trial court denied defendant's motion for judgment notwithstanding the verdict or a new trial. Subsequently, defendant was sentenced to 12 years in the Illinois Department of Corrections. On appeal, defendant argues that: (1) he was not proven guilty beyond a reasonable doubt, because the State failed to prove force and failed to disprove his defense of consent by the victim; (2) the State committed prosecutorial misconduct during closing argument; and (3) his 12-year sentence was excessive. For the following reasons, we reverse.
¶ 3 In the early morning hours of June 16, 2011, defendant was involved in a sexual encounter with S.B. inside of S.B.'s parked vehicle, which was in the lot of a Denny's restaurant in Highland Park, Illinois. Defendant was arrested later that day and charged by complaint with criminal sexual assault. In the complaint, the State alleged that defendant committed an act of sexual penetration (penis in vagina) with S.B. by the use of force. 720 ILCS 5/12-13(a)(1) (West 2010). On July 6, 2011, a grand jury returned an indictment alleging in count I that defendant committed the offense of aggravated criminal sexual assault in that, while committing the offense of criminal sexual assault by the use of force, defendant caused injury to S.B. 720 ILCS 5/12-14(a)(2) (West 2010). Count II of the indictment alleged criminal sexual assault by the use of force. 720 ILCS 5/12-13(a)(1) (West 2010).
¶ 4 On August 2, 2011, defense counsel informed the trial court that he had not received still photographs and video taken inside the Denny's restaurant, which he asserted were exculpatory. On August 24, 2011, the grand jury added another count to the indictment. Count III alleged that defendant committed criminal sexual assault against S.B. in that he knew that she was "unable to give knowing consent." 720 ILCS 5/12-13(a)(2) (West 2010).
¶ 5 On November 23, 2011, defense counsel informed the court that the State had not produced any expert reports or evaluations regarding the allegation in count III that S.B. was unable to give knowing consent. In response, the State said that it had tendered discovery regarding S.B.'s intellectual disability. The trial was then delayed for a variety of reasons. On November 19, 2012, the State, now represented by two assistant State's Attorneys (ASAs) whowere new to the case, requested a continuance to determine whether it would retain an expert to evaluate S.B. Defense counsel stated, "[w]e have said since the beginning that *** it was consensual." On November 30, 2012, the State informed the court that it was not going to have an expert evaluate S.B.
¶ 6 The case proceeded to trial on January 28, 2013. Prior to trial, the State moved in limine to permit Dr. Linda Holt, S.B.'s treating physician, to testify to her opinion that the injury S.B. suffered to her vagina during intercourse with defendant was the result of a "forced rape." Defense counsel argued that such an opinion should not be permitted, because such an injury was also consistent with consensual sex. Defense counsel conceded that the physician should be allowed to testify that the injury was the result of blunt force trauma, but not that it was from "forced rape" or "sexual assault." The trial court took the motion under advisement.
¶ 7 At trial, S.B.'s mother, Margie B., testified that S.B. attended special education classes throughout grade school, high school, and college. After attending two years of college at National Lewis University, S.B. worked at a Gap clothing store for 15 years. S.B. owned a black Honda CRV, which Margie bought for her.
¶ 8 Margie testified that in June 2011 S.B. lived in Evanston with S.B.'s husband. On Wednesday, June 15, 2011, S.B. visited Margie at her home in Highland Park. S.B. left Margie's home about 8 p.m. to go to The Lantern, a bar in Lake Forest, to sing karaoke and hang out with her friends. Around 5:30 a.m. the next morning, Margie received a phone call from Evanston Hospital informing her that S.B. had been hurt. Margie drove to the hospital and saw S.B. in the emergency room, where S.B. was "crying heavily."
¶ 9 At the time of trial, S.B. was working at a Garden Fresh Market and was living with Margie and her husband. On cross-examination, Margie testified that the Highland Park policestation is a couple of minutes from the Denny's restaurant and that the Highland Park hospital is closer to the Denny's than the police station is.
¶ 10 S.B. testified that she was 41 years old and was divorced from her ex-husband after 10 years of marriage. On the night of June 15, 2011, S.B. ate dinner at her mother's house and then drove to The Lantern to sing karaoke and hang out with her friends Julie Olnas, Beth Ann Groce, Shawn McFarland, Pete Singleton, and Olga Tychina. S.B. met defendant for the first time at The Lantern that evening. Although she usually drank alcohol with her friends at The Lantern, that night she drank only water. When the karaoke ended at 1 a.m., S.B. drove to the Denny's to meet with "Beth, Julie, Jasmine and Boogie." She parked her car in the Denny's parking lot. When S.B. arrived, Julie, Beth, and Jasmine were already at the restaurant. The group went inside and sat down at a table. S.B. identified the State's exhibit 30, a photograph that showed the group eating breakfast while seated at a table. Defendant is seated next to S.B.
¶ 11 S.B. said that, after eating, she paid for her meal and went to the parking lot, where she saw her friends going to their cars. S.B. went to her car and got in on the driver's side. Defendant got into the front passenger seat. Then, S.B. testified:
¶ 12 S.B. identified a photograph of the backseat of her car. Once in the backseat, S.B. testified, she was thinking, "[w]hy am I back here in the back of my car?" S.B. said that defendant got into the backseat on the driver's side; she explained that she must have left the door unlocked. She then testified as follows:
¶ 13 S.B. explained that she used her hands to try to get defendant off of her but he would not get off of her. She testified that when she said "inside me" she meant he put his penis in her vagina. At some point defendant stopped, and that was when she saw blood on defendant's penis. Defendant used his shirt to wipe the blood off and then exited the car. Before leaving, defendant said, "[d]on't tell anybody." After defendant left, she drove to her mother's house in Highland Park, which was her usual routine on Wednesdays. Once she arrived home she went tobed. Her mother and father were home sleeping but she did not wake them. S.B. said, "I didn't want to upset my mother." She tried to get to sleep but could not do so, because her vagina was hurting. She noticed blood coming out of her vagina. She then drove herself to Evanston Hospital. On the way to the hospital, she stopped at the Winnetka police department but it was closed. Once at the hospital S.B. was admitted. Her clothes were taken and she signed a consent form for an operation. After undergoing surgery, S.B. spoke to a police officer about what happened. S.B. identified various exhibits, including a photograph of defendant and her at Denny's as well as the pants and underwear that she was wearing the night of the encounter with defendant.
¶ 14 On cross-examination, S.B. said she grew up in Highland Park and knew where the Highland Park police station was located but she did not go there on the night in question. Over the State's objection, S.B. admitted that when she got to Evanston Hospital she told hospital personnel that she had "spontaneously bled." In addition to signing the consent form for an operation, S.B. also signed a consent form for a transfusion. S.B. was then asked:
¶ 15 S.B. said that she and defendant sat next to each other throughout the meal at Denny's. She was then asked:
¶ 16 S.B. admitted that her earlier testimony that she paid for her meal was inaccurate. She then identified a series of photographs that had been taken at The Lantern and at Denny's by a member of...
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