People v. Stengel

• Decision Date: 08 March 1991
• Docket Number: No. 1-89-1900,1-89-1900
• Citation: 570 N.E.2d 391,155 Ill.Dec. 878,211 Ill.App.3d 337
• Parties: , 155 Ill.Dec. 878 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Mark STENGEL, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 391

570 N.E.2d 391

211 Ill.App.3d 337, 155 Ill.Dec. 878

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Mark STENGEL, Defendant-Appellant.

No. 1-89-1900.

Appellate Court of Illinois First District, Fifth Division.

March 8, 1991.

Rehearing Denied April 5, 1991.

Michael D. Monico, Barry A. Spevack, Monico, Pavich & Spevack, Marvin Bloom, Chicago, for defendant-appellant.

John M. O'Malley, State's Atty., County of Cook (Renee Goldfarb, Joseph Brent, Mary Brigid Kenney, Asst. State's Attys., of counsel), Chicago, for plaintiff-appellee.

Justice MURRAY delivered the opinion of the court.

After a bench trial, defendant, Mark Stengel (Stengel), was convicted of criminal sexual assault. (Ill.Rev.Stat.1985, ch. 38, par. 12-13(a)(1).) The trial court found that Stengel committed an act of sexual penetration upon C.B. between Stengel's penis and C.B.'s vagina by use of force and threat of force in violation of chapter 38, paragraph 12-13(a)(1) of the Illinois Revised Statutes as amended. (Ill.Rev.Stat.1985, ch. 38, par. 12-13(a)(1).) Defendant was sentenced to serve four years in the Illinois Department of Corrections. Defendant appeals the judgment of conviction.

The crime at issue is commonly referred to in dictionaries, legal textbooks, statutes, novels and even poems as rape. The fact that Stengel's penis penetrated C.B.'s vagina is not at issue. Stengel claims the penetration was consensual. The State and C.B. claim it was not.

Stengel raises the following issues for review: (1) whether the defendant was proven guilty beyond a reasonable doubt; (2) whether the trial court unduly restricted defendant's cross-examination of C.B. denying him a fair trial; and (3) whether the trial judge should have recused himself.

The facts as to how Stengel and C.B. met appear undisputed. C.B. worked as a cocktail waitress at a restaurant/bar in Des Plaines, Illinois. In late November 1986, Stengel, a 25 year old vice-president of a tool company, met C.B. in the bar where she worked. C.B. waited on Stengel and his friend Dr. Apollo Solecki.

Stengel returned to the bar on several occasions alone. Each time he sat in C.B.'s station and engaged in small talk with her. The first several times Stengel had a drink at the bar he paid for the drinks with cash. However, the third time he returned to the bar Stengel used a credit card to pay his bill. The credit card included the initials "M.D." following Stengel's name, creating the false impression that he was a doctor. On at least one occasion Stengel left a $10 tip for one drink.

Eventually C.B. and Stengel agreed to meet for lunch on December 5, 1986. Stengel gave C.B. his phone number and in turn C.B. wrote out her phone number and directions to her apartment on a napkin.

Many of the remaining facts are disputed.

At trial Stengel testified on his own behalf. Stengel testified that on December 5, 1986, he drove to C.B.'s apartment. Stengel believed he arrived at C.B.'s apartment around noon. He brought a bottle of champagne with him as a present. C.B. invited him into her apartment. C.B. rinsed off some glasses for the champagne and they toasted one another. The two talked in the living room for about an hour. According to Stengel, it was during this conversation that C.B. first revealed that she did not have a driver's license as a result of a drunk driving conviction.

Stengel drove C.B. to the Fountain Blue restaurant. Stengel took the partially finished champagne bottle with him so that C.B.'s boyfriend would not discover it. Along the way to the restaurant, while waiting at a red light to make a left turn, Stengel placed the champagne bottle, which he had been balancing on his lap, on a median strip near Golf Road and Oakton Community College.

During the drive, Stengel made two calls on his cellular phone. The second call was to Dr. Solecki. Stengel purposely left on the speaker for the inception of the conversation so that C.B. might hear Dr. Solecki's habit of addressing Stengel as "doctor."

Once at the restaurant, Stengel ordered two glasses of wine. He believes they both finished their entire glass of wine. Throughout lunch the two engaged in conversation, Stengel stating, falsely, that he worked at St. Mary's and St. Francis' hospitals and C.B. deprecating her boyfriend as a "hamburger flipper" at a fast-food restaurant who was going nowhere. Stengel ordered two pieces of cheesecake to go for dessert.

When they left the restaurant Stengel drove to a place called Wally's. They arrived at Wally's about 2:30 p.m. Stengel introduced C.B. to Pete Buhelos, the owner of Wally's. Stengel jokingly said to Pete that he would one day marry C.B.

Once back at C.B.'s apartment, C.B. willingly invited Stengel in. Stengel and C.B. sat down on the couch and talked. C.B. eventually produced some cocaine which they shared. C.B. and Stengel began fondling, petting and grabbing at one another. These acts culminated in sexual intercourse. Stengel maintains that the sexual intercourse was totally consensual.

After sexual intercourse, Stengel and C.B. talked in bed. Stengel commented about a Tom Cruise poster hanging in the bedroom. C.B. responded that the Hustler magazines sitting on the living room table were her boyfriend's way of getting even with her for the poster hanging in the bedroom. C.B. inquired as to a follow-up date. Stengel kept putting her off. Finally, Stengel disclosed that he had a serious girlfriend and he was not a doctor.

C.B.'s version of the events of December 5, 1986, is very different from Stengel's. C.B. testified that during a conversation at the bar she worked at she told Stengel that her driver's license had been revoked for drunk driving. Stengel responded by saying that his brother was an attorney and could help her regain her license. Stengel offered to discuss, over lunch, the possibility of his brother helping C.B. C.B. did not have money to pay an attorney and thought Stengel was doing a favor for her.

C.B. wrote her phone number and address on a napkin and gave it to Stengel. At the time C.B. was living with her boyfriend Jeff. C.B. did not tell Jeff that she planned to meet Stengel that day. C.B. considered the lunch a business luncheon. She did not consider the lunch to be a romantic or social date. C.B. testified that Stengel knew she had a boyfriend. She had pointed her boyfriend out to Stengel one night when he had come into the bar she worked at.

Stengel arrived at C.B.'s apartment approximately 20 minutes late. The two visited in the living room of C.B.'s apartment for five to ten minutes. C.B. denies that Stengel had brought a bottle of champagne. C.B. and Stengel left the apartment and drove to the Fountain Blue restaurant for lunch. Stengel made two phone calls on his cellular phone while en route to the restaurant. One call was to Dr. Solecki.

Once at the restaurant Stengel ordered two glasses of wine. Stengel drank his glass of wine, while C.B. only had a few sips of hers. Stengel told C.B. that his brother was a well known attorney, his brother could definitely help her, and that defendant would definitely discuss the matter with his brother. C.B. never got the brother's name. She alleges she is bad with names and never would have remembered it anyway. At trial C.B. stated "It was more like he was a friend, and he was doing me a favor, and I didn't doubt him at that point."

When they left the restaurant C.B. told Stengel that she started work at 4:00 p.m. After Stengel and C.B. left the restaurant, Stengel drove to a hot dog stand so that he could introduce C.B. to the owner, Pete. Stengel introduced C.B. and made a comment about C.B. being a "sweetie." Stengel didn't touch C.B. and C.B. didn't touch Stengel. Stengel and C.B. left Wally's to return to C.B.'s apartment. During the ride home Stengel told C.B. to move over from the passenger seat and sit next to him. C.B. claims that Stengel grew irritated when she refused to move over. C.B. did not want Stengel to come upstairs, however, after Stengel's insistence that he needed to use the bathroom she agreed to let him in.

Once inside Stengel emerged from the bathroom and grabbed C.B. C.B. started to scream when he grabbed her. C.B. told Stengel to let her go and leave. Stengel threw C.B. on the bed and pinned her with his body. C.B. was 5' 4"'' tall and weighed 105 pounds. Stengel was 6' 1"' tall and weighed 190 pounds. C.B. struggled unsuccessfully to get away. Stengel ripped down C.B.'s nylons, leaving the nylons on one leg. In one motion Stengel pulled down C.B.'s elastic waisted skirt and elastic waisted slip. Stengel unzipped his pants. He inserted his penis in C.B.'s vagina for approximately 30 seconds.

During the struggle C.B. received two superficial scratches on her face and a swollen lip. C.B. felt Stengel's watch against her face. Stengel bit her lip trying to insert his tongue in her mouth. When Stengel released C.B. she jumped off the bed. She still had on her sweater, bra and one shoe. She tried to cover the rest of her body with her skirt. Stengel apologized and said he did not mean it. He asked for a hug and C.B. obeyed. He told her to take a shower and apologized again. Stengel left C.B.'s apartment.

At this time C.B.'s underwear and nylons were on the floor. C.B. was in shock. She went into the bathroom and wiped her vagina with a Kleenex. When asked if she remembered touching herself with anything else, C.B. responded, "Maybe my underwear, I'm not sure."

C.B. was crying. She looked out the window to make sure Stengel left. She saw him go out of the apartment building and watched him get in his car and pick up the phone. The phone rang but she did not answer it. Not knowing what to do C.B. took a shower. She didn't really wash herself, but rather stood in the shower crying. When she got out of the shower she called her boyfriend, Jeff. A few moments later Stengel called and apologized.

Jeff came home and asked what had...