People v. Osborn
| Decision Date | 26 September 1977 |
| Docket Number | No. 76-542,76-542 |
| Citation | 368 N.E.2d 608,11 Ill.Dec. 57,53 Ill.App.3d 312 |
| Parties | , 11 Ill.Dec. 57 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Mark L. OSBORN, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Serpico, Novelle, Dvorak, Navigato & Hett, Ltd., Chicago (Robert A. Novelle, Chicago, of counsel), for defendant-appellant.
Bernard Carey, State's Atty., County of Cook, Chicago (Laurence J. Bolon, James S. Veldman and William F. Ward, Jr., Asst. State's Attys., of counsel), for plaintiff-appellee.
After a bench trial, Mark L. Osborn (defendant), was found guilty of rape (Ill.Rev.Stat. 1975, ch. 38, par. 11-1) and two acts of deviate sexual assault (par. 11-3). He was sentenced to 5 to 15 years on the rape conviction. He appeals.
In this court, defendant contends that the court erred in admitting hearsay outcry evidence and in considering evidence of other crimes or criminal acts disassociated with the charges for which defendant was tried; the evidence was insufficient to prove defendant guilty beyond a reasonable doubt and the court considered improper evidence in sentencing the defendant.
The complainant testified that on December 2, 1974, she made a telephone call in response to a help wanted advertisement in the Chicago Tribune. She recorded her name and phone number on the telephone answering machine. On December 15, the witness received a return telephone call from a man who identified himself as Doctor Mark Osborn of the National Institute of Behavior Counseling. During this call a job interview was scheduled. Three days later the witness met defendant in the prearranged location, a Chicago apartment with appearance similar to an office. A 15 minute interview was ended with no decision about the job. Defendant later told the witness that he lived in the apartment.
The witness testified that on January 11, 1975, defendant called and invited her to a hockey game. She refused. On January 17, defendant again called. He said he wanted to finish discussing the job interview. He invited her to attend a basketball game with him and another couple. She told him that she was going to a party at a friend's home. They agreed to go to the party and also to the game the following evening.
The witness further testified that she and defendant went to the party at the apartment of her friends David and Nickey Krause. After defendant's friends, Howard McArthur and a woman named Nancy, arrived at the party, the two couples went to a basketball game. They returned to the party where they stayed until about 12:30 a.m. After the two couples left the party, defendant remarked that it was a cold night and asked the witness whether he could come up to her apartment for coffee and she agreed.
The witness fixed a hot drink for defendant and they conversed for a short time. Defendant then said, "I usually go to bed with everybody I go out with." The witness testified that she responded, "I don't." Defendant also said, "(I)f I don't go to bed with a woman I don't call her again." The complainant answered, "(T)hat's fine with me, you don't have to call me again." After further conversation, at defendant's request the witness brought him a beer, which he preferred over the tomato juice she had also offered.
Defendant said he planned to leave but first had to use the washroom. The witness testified defendant then walked down a hall where the bathroom was located directly to the left of the kitchen. The witness did not see him enter the bathroom and he returned 8 to 10 minutes later. Defendant sat next to her on the couch and said, "I don't want to alarm you but I'm going to have sex with you." He grabbed and squeezed her throat and pushed her back onto the couch. Defendant lay on top of the witness and held a knife at her throat. She testified she recognized the knife as a steak knife from her kitchen drawer. She tried to scream but was unable to do so.
Defendant ordered the witness to undress while he counted up to five. He got up and stood next to the couch. She did nothing but told him, Defendant told her, "(I)f you go to anybody or you say anything I'll come back here and get you." He squeezed her throat harder than he had the first time. When the witness tried to push him away, defendant continued to hold the knife at her throat. She testified further that defendant said, "you don't believe I'm going to use this knife * * * " and then ran the knife blade across her thumb, piercing her skin. When defendant again ordered her to undress, she complied and he also removed his clothes.
The complainant related that defendant refused her request for permission to leave the room to remove a sanitary device she wore because of her menstrual period. She removed the device in the living room upon defendant's order. The witness was crying and asking defendant to "get out" and to "please leave me alone." She testified that defendant then pushed her onto the couch and forced her mouth into contact with his penis for 5 seconds. He then placed his mouth on her vagina for about a minute. The witness was crying and sobbing. Defendant lay on top of her, forced her legs apart and engaged in three acts of intercourse during the next half hour. She testified that during this time she cried and held her hands over her face.
After the final act of intercourse, the witness told defendant to get out and he permitted her to put on clothing. Defendant remained in the apartment for 45 minutes. The complainant related, during this time defendant warned her that "nobody better find out about this." He left the apartment at about 4 a.m.
The witness testified that she stayed on the couch, wrapped in blankets until she arose at about 10 the next morning. At that time, she telephoned the Rape Crisis Line and to the person who answered she said that she "wanted to report a rape." She did not speak to a member of the organization which operated the crisis line. About 1 minute later, she telephoned her friend Nickey Krause and told her she had been raped. She also said that she was "afraid to be in the apartment because Osborn had threatened to come back." About an hour later, the witness also called her mother. That night she slept at the Krause apartment.
During cross-examination, the complainant testified that she met defendant on January 18 because she was interested in the job but that she and defendant did not discuss employment that evening. When she and defendant were sitting on the couch after the witness had brought him a hot drink, defendant put his arm around her and did not remove it when told to do so. He then touched her breast and was "getting friendly" with her.
That evening, she stated during cross-examination, she did not see defendant in her kitchen. When he returned from the bathroom she did not see his hands. The kitchen is 6 to 7 feet further down the hall from the bathroom. She also testified that she took a shower soon after defendant left her apartment. She did not speak to the police until the Saturday following the incident and she did not go to a hospital until two weeks later when she obtained a venereal disease test. She testified that she did not tell her mother about the rape during their phone conversation on January 19.
David Krause testified that during the party at his apartment on January 18, he saw the complainant remove her arm from defendant's hand and shrug his hands from her shoulders. He also related that he and his wife went to the complainant's apartment the afternoon of January 19 and took her back to their apartment where she stayed overnight. When they arrived at the complainant's apartment that afternoon, she was pale and white and had circles under her eyes. The witness did not see her hand at that time. Nickey Krause corroborated the fact that she had received a telephone call from the complainant on the morning of January 19.
Linda Barnes testified for the State that on January 16, 1975, she called defendant in response to a help wanted newspaper ad. One hour later, at 11 p.m., defendant came to her apartment and left materials which she was to collate and staple for a fee of $15. She testified that when defendant did not pick up the materials on January 19 as they had agreed, she tried to contact him several times by phone.
On January 23, the witness told defendant by telephone that she needed the money for her services and told him to come to her apartment that evening. She testified, defendant arrived at the apartment about 10:30 or 11 p.m. The witness, her husband and another couple were present. They watched vacation movies and two films defendant had brought. The witness described these two films as "pornographic." When the other couple left, defendant began to fall asleep. At the witness' suggestion, defendant stayed the night in the guest room.
Mrs. Barnes further testified that the next morning, after her husband had left, defendant stood in her bedroom doorway and "asked if he could get in bed with me." She answered "No" and defendant said "he wanted to ball me." She again refused. The witness went into the kitchen followed by defendant. He made out a check for her work, they talked briefly and defendant gathered his belongings to leave. She testified that while they were standing in the foyer, defendant grabbed her by the throat, said "we were going to bed together," and backed her into the bedroom while holding her throat. He tore her robe partially open. When the witness told defendant to understand that "it was a rape," he pushed her onto the bed and left.
On cross-examination, she stated that an attempt rape charge against defendant based on the incident in her apartment had resulted in a finding of no probable cause at the preliminary hearing. She also testified that she had invited...
To continue reading
Request your trial
-
People v. Kimbrough
...People v. Wernowsky (1985), 106 Ill.2d 49, 53, 87 Ill.Dec. 484, 486, 477 N.E.2d 231, 233.2 But cf. People v. Osborn (1977), 53 Ill.App.3d 312, 322-23, 11 Ill.Dec. 57, 65, 368 N.E.2d 608, 616 (stating that the rule is that "acquittal of the prior offense does not necessarily render evidence ......
-
People v. Burgin, 77-1886
...34 Ill.App.3d 167, 170, 340 N.E.2d 235, 238, quoting McCormick, Evidence § 190, at 449 (2d ed. 1972). In People v. Osborn (1977), 53 Ill.App.3d 312, 320, 11 Ill.Dec. 57, 368 N.E.2d 608, this court approached the same issue by analyzing three recent decisions. (People v. Therriault (1976), 4......
-
People v. Walls
... ... Contrary to defendant's suggestion, the similarities in this case are striking and the evidence of the Staton attack was properly admitted to show a common scheme or design and modus operandi. People v. Gonzales (1978), 60 Ill.App.3d 980, 992, 17 Ill.Dec. 901, 377 N.E.2d 91; People v. Osborn (1977), 53 Ill.App.3d 312, 323, 11 Ill.Dec. 57, 368 N.E.2d 608, cert. denied (1978), 439 U.S. 837, 99 S.Ct. 122, 58 L.Ed.2d 134; People v. Middleton (1976), 38 Ill.App.3d 984, 990, 350 N.E.2d 223 ... Defendant cites People v. Connors (1980), 82 Ill.App.3d 312, 37 Ill.Dec. 771, ... ...
-
People v. Tate
...385 N.E.2d 1001, 1004; People v. King (1978), 61 Ill.App.3d 49, 54, 18 Ill.Dec. 371, 377 N.E.2d 856; People v. Osborn (1977), 53 Ill.App.3d 312, 321, 11 Ill.Dec. 57, 368 N.E.2d 608. Defendant cites People v. McDonald (1975), 62 Ill.2d 448, 343 N.E.2d 489, and Commonwealth v. Keizer (1979), ......