People v. Wheeler

• Decision Date: 02 August 1990
• Docket Number: No. 4-89-0350,4-89-0350
• Parties: , 146 Ill.Dec. 795 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. David A. WHEELER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 758

558 N.E.2d 758

200 Ill.App.3d 301, 146 Ill.Dec. 795

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. David A. WHEELER, Defendant-Appellant.

No. 4-89-0350.

Appellate Court of Illinois Fourth District.

Aug. 2, 1990.

Daniel D. Yuhas, Deputy Defender, Office of State Appellate Defender, Springfield, John J. Hanlon, Asst. Defender, for defendant-appellant.

Charles G. Reynard, State's Atty., McLean County Law & Justice Center, Bloomington, Kenneth R. Boyle, Director, State's Attys. Appellate Prosecutor, Springfield, Robert J. Biderman, Deputy Director, Gwendolyn W. Klingler, Staff Atty., for plaintiff-appellee.

Justice GREEN delivered the opinion of the court:

On January 27, 1989, following a jury trial in the circuit court of McLean County, defendant David A. Wheeler was convicted of criminal sexual assault for forcibly engaging in anal intercourse with his girlfriend. He was acquitted of aggravated criminal sexual assault. He was subsequently sentenced to a term of four years' imprisonment.

On appeal, defendant maintains (1) he was not proved guilty beyond a reasonable doubt of criminal sexual assault where he had a long-term, consensual sexual relationship with the victim, and her testimony was not corroborated; (2) the court erred in denying his motion in limine to bar reference to a handgun allegedly displayed during the incident; (3) the trial court erred in allowing the admission of evidence of a paternity suit, which the victim brought against defendant; and (4) the trial court erred in refusing defendant's tendered jury instructions on the defense of consent. We affirm.

The undisputed evidence at trial indicated (1) defendant and complainant S.M. were both 24 years old and had known each other for 11 years; (2) they had dated intermittently for nine years and had had a sexual relationship for approximately eight years; (3) the complainant and defendant had a three-year-old daughter, who lived with complainant; (4) although defendant and complainant had never lived together, for several years prior to this incident, defendant had a key to S.M.'s apartment, visited his daughter daily, and spent every Saturday night with S.M., during which time they would engage in sexual activities; (5) on Saturday, June 18, 1988, S.M. invited defendant to a family barbecue; (6) when they returned to S.M.'s apartment at midnight, S.M. put her daughter to bed and took a bath; and (7) after she finished bathing, she and defendant had consensual, vaginal intercourse on the kitchen table, but defendant did not ejaculate.

S.M. testified that after they had vaginal intercourse, defendant indicated he wanted to have anal intercourse with her and she refused. S.M. testified that defendant pulled a gun from his pants pocket, placed the gun in front of her, and warned her to be quiet so she would not awaken their daughter. She then described defendant's several attempts to have anal intercourse, the ensuing argument they had, and defendant's ultimately successful, forcible penetration of her anus. S.M. said she experienced considerable pain and bleeding, and she vomited, but afterward, defendant was very apologetic and told her "[n]obody [would] ever have to know about this."

S.M. testified that she did not ask defendant to leave and did not call the police, because she was scared. She said she acquiesced when he later attempted to have vaginal intercourse again, because she "just didn't care" anymore. She indicated she acted as if everything were normal, and the next morning had the daughter give defendant a Father's Day present, because she just wanted to "get him out of there." She then took defendant to his house, took her daughter to her grandparent's house, and had her grandfather take her to the hospital. She said she was examined by a doctor and a nurse after 11 a.m., and she described the examination of her rectum as very painful. She said the doctor was unable to fully examine her, because she was too sore. She said that after she left the hospital, she went to the police station and filed a complaint. She indicated she missed three days of work after the incident and later moved from her apartment. She said she had not spoken with defendant since the date of the incident.

On cross-examination, S.M. admitted she did not know if her carpet or the blanket she was wearing were stained with blood, although she did know that there was blood on her and defendant, on the linoleum bathroom floor, in the toilet, on defendant's clothing, and on the underwear she wore to the hospital. She said no police officer photographed her or her carpet, and she did not know what had happened to the blanket, defendant's clothing, or her underwear. The State also supported its case with the testimony of Dr. Phillip Mitchell and nurse Henkel, who examined S.M. in the hospital emergency room, and Kevin Zeeb, an Illinois State Police forensic lab scientist.

Defendant presented Clyde Cheek, who was defendant's supervisor at the Kroger grocery store where he worked, and Doug Price, a friend of both defendant and S.M. Cheek testified that defendant was honest, hard-working, dependable, dedicated, and had a very good reputation for peaceful and law-abiding conduct. Price testified that he was with defendant on June 18, 1988, that he and defendant had a few beers before S.M. arrived to pick him up, and that defendant did not appear to have a gun with him at that time. He said he was aware, however, that defendant owned a gun.

Defendant then testified (1) he had been employed by the Kroger Company since May 1986; (2) his 10-year relationship with S.M. was a "loving relationship," which had become serious in the previous 4 or 5 years; (3) approximately one week prior to this incident, he and S.M. argued about their daughter, and he told S.M. the only reason he was still seeing her was because of the child; (4) on June 18, 1988, after they returned to S.M.'s apartment from the barbecue, they engaged in various consensual sexual activities, none of which included anal intercourse; (5) he never saw S.M. bleed from the rectal area, nor did he see her cry or become upset; and (6) the next morning, he received a card and gift from S.M. and the child, and S.M. took him home. He said he did not bring a gun to the apartment, and he did not place one near her as alleged.

S.M. testified in rebuttal that, contrary to defendant's assertions, he did not live with her, and he had frequently carried a gun after he had been in a car accident a month prior to the alleged assault.

Defendant argues the conviction cannot stand, because S.M.'s testimony was not "clear and convincing," and it was not corroborated by other facts and circumstances in evidence. (People v. Jackson (1989), 178 Ill.App.3d 785, 793, 127 Ill.Dec. 914, 919, 533 N.E.2d 996, 1001.) Defendant maintains that if an anal penetration was had, it was with the consent of S.M. Defendant notes that their previous long-term sexual relationship, as well as S.M.'s conduct during the day after the alleged offense, are inconsistent with her having been sexually assaulted against her will.

Defendant further argues the evidence did not support her claim of forcible anal intercourse. He notes she claimed he was "ranting and raving," she was crying and begging him to stop, and that he dragged her from the bathroom. Yet neither their daughter, who was sleeping 20 feet away, nor any neighbor in the small apartment complex heard anything. Defendant further notes S.M.'s conduct after the alleged assault was extremely suspect. He notes she admittedly told him she loved him, offered no resistance to a later attempt at vaginal intercourse, and did not call anyone, get into her car, or make any attempt to leave. In addition, he notes the next morning, she gave him a Father's Day present and told him she loved him before driving him home. Defendant claims this post-incident conduct was inconsistent with the concept of forced assault.

Moreover, defendant argues the medical testimony did not suggest a forcible anal assault.

Susan Henkel testified that S.M. told her she had been forcibly assaulted by anal intercourse, and she was concerned about permanent damage to her rectum. She said (1) she assisted in the collection of evidence via the sexual assault evidence-collection kit; (2) she observed "a little bit of bruising" in the rectal area; (3) she believed S.M. was uncomfortable, embarrassed and "shook up"; (4) the sexual assault medical-report form she had used to ask questions of S.M. indicated S.M. had responded negatively to questions regarding whether she had vomited or changed her clothes after the attack; (5) her emergency room notes indicated that S.M. had not said anything about bleeding, although Henkel said such information would be very important; and (6) the notes reflected that S.M.'s status upon discharge was "good."

Dr. Phillip Mitchell testified at trial that he had examined and treated S.M. on July 19 in the hospital emergency room at about 2:30 p.m. He said she had a contusion or bruise in her outer anal area, and he was unable to do an internal rectal examination because of the tenderness. He said he did not observe any tears in the skin near the rectum, and the bleeding could have come from internal causes, such as hemorrhoids. He indicated the trauma was consistent with the insertion of "some kind of object" through the anus. He said, however, that there was no other indication of a recent struggle of any kind. He testified that he and a nurse collected vaginal, rectal, and oral swabs and smears of bodily fluids by inserting a Q-tip inside the various cavities. He said he believed it was possible for semen to transfer from the vagina to the anal area because of gravity, but the semen would not penetrate the anus.

Kevin Zeeb testified for the State that he had examined the various swabs and smears...