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No. 3-02-0754

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2004

JUSTICE McDADE delivered the opinion of the court:

Following a jury trial, defendant Andrew Lamon was convictedof aggravated criminal sexual assault (720 ILCS 5/12-14(a)(2)(West 2002)) and unlawful possession of a controlled substancewith intent to deliver. 720 ILCS 570/401 (West 2002). He wassentenced to an extended term of 30 years' imprisonment for theaggravated criminal sexual assault conviction and a term of 5years on the unlawful possession offense, sentences to runconcurrently. Defendant does not challenge his drug convictionbut raises three issues on appeal relating to his sexual assaultconviction: (1) whether the evidence adduced at trial wassufficient to prove his guilt beyond a reasonable doubt; (2) whether he was denied a fair trial because the jury had beenimproperly influenced by an allegedly prejudicial newspaperarticle; and (3) whether he was denied his right to a fair trialby the State's alleged knowing use of the victim's allegedlyperjured testimony. We affirm.

FACTS

The victim, testified for the State that she and defendanthad been in a long-term intimate relationship which had ended inSeptember of 2001. On January 6, 2002, the night in question,defendant paid a "surprise" visit to her residence at about 5p.m. She testified that she and her children finished dinner at6:30 p.m. and then she went upstairs to her bedroom wheredefendant had been waiting.

She testified that once upstairs, defendant grabbed her byher hair and called her a "whore." He accused her of "cheating"and demanded to know the identity of her lover. Defendant thenplaced her daughter in another room and closed the bedroom door.The victim further testified that defendant forced her to lie onher back on the bedroom floor where he stood over her andurinated on her. Next, he told her to take her clothes off. Shecomplied. Defendant subsequently tied her wrists with anelectrical cord, placed a sock in her mouth, and taped her mouthshut. Defendant told her: "You better not scream and make thekids come to the door." If the victim did not comply, she "wouldnot live to see the next day." A beating ensued in whichdefendant struck the victim several times with a wire coathanger. She testified that after the beating, she was forced toperform oral sex on defendant. Defendant also raped her anallyuntil he ejaculated. She stated that shortly after the assault,"[defendant] laid down. Then he got back up and he untied me, andhe told me to lay in the bed and not to move." According to thevictim, the whole incident only lasted 20 minutes.

The victim recounted that she remained in bed with defendantfor approximately four hours. While defendant was sound asleep,she drove to a Peoria police station where she was interviewed byseveral police officers.

She talked to Officer Katherine Baer while she was at thepolice station. Baer observed the victim in an agitated state,with a cut above her eye and bruises on her wrist. Officer BradHutchinson was present at the interview. He also testified at thetrial. He noticed that the victim looked very upset. He opinedthat the injuries on her wrists were consistent with "being tiedup." The pictures of the victim taken soon after the incidentalso show bruised areas around her breast and right shoulder.

After the preliminary interview, Officers Baer and Buchananand the victim all returned to the house to investigate herallegations. Upon arriving at the residence, the officers went tothe upper floor and found defendant sitting in his bed. Theofficers searched the bedroom and found items similar to thosedescribed by the victim as having been in the room in which theattack occurred.

Officer Buchanan testified that he arrested defendant andtook him to a police vehicle. At that moment, defendant told him:"That bitch is selling heroin and she has some in my coat rightnow." Defendant then described a dark trench coat inside thevictim's closet. After securing defendant inside the vehicle,Buchanan and other officers reentered the bedroom and checked thecoat. Upon searching the pockets of the coat, Buchanan discoveredheroin.

Officer Richard Ledbetter testified that he spoke withdefendant at the police station in the early morning hours ofJanuary 7, 2002. Defendant told him that he understood his rightsand then related to Officer Ledbetter his version of the events.

He admitted that he had lost his temper and had hit the victimduring an argument. Officer Ledbetter asked defendant if the sexwas consensual and was told by defendant, "[s]he liked her sexrough and she did not resist being tied up."

The victim was taken to an emergency room later thatmorning. Sally Gniepentrog, an emergency room nurse, testifiedthat she treated the woman in the emergency room on the morningof January 7. The victim told her that she had been raped.Gniepentrog gathered evidence for a sexual assault kit. Accordingto Gniepentrog, defendant's sperm was found on an anal swab takenfrom the victim. She also had bruising to her body, includingaround her left breast and on her right wrist.

On January 19, 2002, in a notarized letter to theprosecutor, the victim recanted the allegations against defendantand instead claimed the sex was consensual. In the letter, sheexplained that she made up the story because "[w]e had anargument *** and things got out of hand." Her letter concludedthat "[t]he things that I said and written about in my statementwas done in an angry state." In her direct testimony, the victimexplained: "I had typed [the recantation letter], because[defendant] took $700.00 from me and he said he'd give me mymoney back."

The State presented additional testimony on this subject. According to Mr. Michael Hirsh, an investigator for the PeoriaCounty State's Attorney's office, the victim wrote the letter ofrecantation due to continued pressure from defendant. She toldHirsh that defendant continued to call her from jail in order toforce a recantation letter to be written, and that "she would dojust about anything to have [those] phone calls stopped."

On cross-examination, the victim stated that the sexualassault lasted approximately an hour. She admitted that duringher initial interview with the police, she did not say thatdefendant had sexually assaulted her or raped her. She toldOfficer Baer that she had been sexually assaulted only after thepolice had discovered heroin in defendant's trench coat. Shefurther testified that her recantation resulted from pressureexerted on her by defendant and his brother-in-law.

Defendant testified on his own behalf and he told a storythat was different in significant ways from the victim's. Hefirst stated that the victim was his common law wife. Twochildren were born to this "marriage." Defendant also related tothe jury that he "had cheated on [the victim] with FeliciaSmith," a heroin addict. He further claimed that the victim andher cousin "beat Smith with a bat." He admitted that hisrelationship with the victim was "really shaky," but they "werebasically trying to reconcile and get it stricken [sic] back towhere it was." Defendant's testimony substantially corroboratedthe nature of his physical attack on the victim. He denied,however, that the attack occurred before the sexual assault. Defendant testified that he had sex with her on the night inquestion, but it was consensual--he did not rape her. Defendantinsisted he and the victim fell asleep after sex and got into anargument about her infidelities after they awoke. He thenadmitted the following:

"I hit [her], I urinated on [her], and I hit her withthe clothes hanger, put a sock in her mouth, put tapearound her mouth. I asked [her] about the relationshipthat she was having. She just wouldn't tell me. Thatwas more pertinent than anything on this earth for me,not because of some jealousy as it was portrayed here,it's a hell of a lot more than that." During the trial--on the day before closing arguments--anarticle appeared on the local state page of the Peoria JournalStar which reported:

"Lamon, who also testified Wednesday, never deniedbeating or urinating on the woman. At issue is whetherLamon raped her. He claims the two had consensual sexbefore the beatings. The woman testified Lamon rapedher.

It matters because Lamon isn't charged inconnection with the beating. Instead, he faces thecharge of aggravated criminal sexual assault or, inlayman's terms, rape.

Prosecutors must prove the beating and the sexoccurred roughly the same time in order to get aconviction on the sexual assault charge." (AndyKravetz, Peoria Woman, Age 30, Testifies In SexualAssault Trial, PEORIA J. STAR, July 11, 2002, at B2.)

Defendant alleged that several jurors had been exposed tothis article and asked the court to question the jury. Oninterrogation two jurors admitted reading the article. JurorMangers informed the court that he had read the article but thatnothing in it would influence his decision. The second juror whoadmitted to seeing the article also assured the court that hewould not allow it to influence his decision. The judge asked nofollow-up questions of any of the jurors, nor did he read thearticle before allowing the trial to proceed.

During closing arguments, defense counsel asserted that theevidence of drug possession established the victim's motive tofabricate the sexual assault story, characterizing it as apreemptive move to avoid impending drug and assault charges. Healso argued that the evidence was sufficient to establish thatthe victim's jealousy of defendant's relationship with his lovermotivated the victim to claim that sex with him had been forced.Defense counsel sought to buttress these assertions by restatingthat the victim had engaged in behavior seemingly inconsistentwith a sexual assault, such as her initial reluctance inreporting the crime. The jury rejected these theories and founddefendant guilty of aggravated criminal sexual assault. Defendantfiled his timely appeal.

ANALYSIS

I. Reasonable Doubt

In his first assignment of error, defendant claims theevidence was insufficient to support the verdict rendered by thejury. Specifically, defendant claims inconsistencies in thevictim's testimony negated her credibility. We disagree.

When considering a challenge to the sufficiency of theevidence, it is not the function of this court to retry thedefendant. People v. Collins, 106 Ill. 2d 237, 478 N.E.2d 267(1985). The trier of fact was responsible for determining thewitnesses' credibility, weighing their testimony, and drawingreasonable inferences from the evidence. People v. Bailey, 311Ill. App. 3d 265, 724 N.E.2d 1032 (2000). We may not substituteour judgment for that of the trier of fact on questions involvingevidentiary weight, witness credibility, or resolution ofconflicting testimony. People v. Campbell, 146 Ill. 2d 363, 586N.E.2d 1261 (1992). The relevant question on review is whether,after viewing the evidence in a light most favorable to theprosecution, any rational trier of fact could have found theelements of the crime proven beyond a reasonable doubt. Collins,106 Ill. 2d 237, 478 N.E.2d 267. We will reverse the defendant'sconvictions only if the evidence is so improbable orunsatisfactory that it creates a reasonable doubt of his guilt.People v. Brackett, 288 Ill. App. 3d 12, 679 N.E.2d 1285 (1997).

The aggravated criminal sexual assault statute, under whichthe defendant was found guilty, provides:

"(a) [t]he accused commits aggravated criminal sexualassault if he or she commits criminal sexual assaultand any of the following aggravating circumstancesexisted during *** the commission of the offense:

* * *

(2) the accused caused bodily harm *** to thevictim." 720 ILCS 5/12-14(a)(2) (West 2002). A defendant commits criminal sexual assault if he or she "commitsan act of sexual penetration by the use of force or threat offorce." 720 ILCS 5/12-13(a)(1) (West 2002). Bodily harm may beshown by the actual injury, such as bruises, or may be inferredby the trier of fact based upon common knowledge. People v.Lopez, 222 Ill. App. 3d 872, 584 N.E.2d 462 (1991).

In the instant case, the evidence as a whole, viewed in thelight most favorable to the prosecution, sufficiently describeddefendant's conduct during the commission of the offense. Thevictim remembered the events of the evening and the incident inboth a chronological order and a coherent manner. Her testimonyrevealed that defendant first bound her wrists with an electricalcord. He also taped her mouth shut and told her not to scream.She was then beaten with a wire coat hanger. As a result of thebeating, she suffered multiple bruises on her wrists and cuts onface and breasts. Finally, defendant forced her to orallycopulate him, and eventually raped her anally.

Although there were no independent eyewitnesses to theevents that night, the victim's testimony was sufficientlycorroborated by witnesses to subsequent actions and by physicalevidence. Several police officers noticed bruises on her body.They related that she was very upset and seemed to have beencrying. Medical testimony also established that she had freshbruises on her breast and wrist and a scratch mark on her neck.Although each of these injuries can occur during consensualintercourse, the constellation of the injuries is consistent withher claim that the sex that morning or previous evening was notconsensual.

Defendant maintains that the victim's trial testimony was"more fantasy than fact." He asserts that there were numerousflaws and inconsistencies in her testimony concerning the timeand sequence of the events in question. One such inconsistencydefendant relies upon is her testimony that her emergency roomexamination took 20 minutes. Defendant points out that theattending nurse testified the examination lasted two hours. Hereasons: "If [the victim] could not even recall how long it tookfor the examination, what could the jury possibly believe of therest of her testimony?" The victim also testified on directexamination that the sexual assault lasted approximately 20minutes, yet her subsequent testimony on cross-examinationrevealed that the whole incident lasted about an hour. Defendantfurther claims that the fact that she remained in bed with himfor more than four hours before reporting the incident to thepolice casts serious doubt on her credibility.

Undoubtedly, these inconsistencies and "flaws" affected thevictim's credibility. They were, however, presented in thepresence of the jury and could be weighed by the jurors inevaluating the relative credibility of the participants. Webelieve these inconsistencies, which were brought out indefendant's cross-examination of the victim, were relativelyminor and bore only upon the weight to be afforded her testimony.They do not call into question the identity of the attacker orwhether she was in fact brutally beaten. While the recantationletter and the victim's later repudiation of it bear on the issueof whether there was a sexual assault at all, the evidence thatshe could not remember the exact duration of the assault or thelength of her medical examination simply does not add, on thefacts of this case, anything to the question of whether defendantforced her to have sexual intercourse with him as alleged.Therefore, we do not find that these inconsistencies so detractfrom the victim's testimony that the jury could not find hercredible on the critical issues or that reversal of defendant'sconviction would be required.

Defendant next suggests that the victim falsely accused himof sexually assaulting her to avoid drug and assault charges.

As in many sex offense cases, the outcome here restedprimarily upon the credibility of the victim and the defendant.By finding defendant guilty, the jury presumably was satisfiedthat the victim was a credible witness and deserving of belief.The jurors were not only able to listen to her live presentation,but they were also able to observe her manner and demeanor whiletestifying. Evidence of the alleged drug-related motive wasbefore the jury when she and defendant testified, but the jurychose to believe her version over the testimony given bydefendant. We do not find that choice to be improbable orunreasonable.

Defendant alternatively argues that aggravated criminalsexual assault was not proved because the victim's testimonycould not establish beyond a reasonable doubt that her physicalinjuries, which make a sexual assault an aggravated sexualassault, occurred during the sexual assault and not after. Heclaims in order for him to be convicted of aggravated criminalsexual assault, the State must prove that bodily harm wascontemporaneous to the criminal sexual assault. People v. Potts,224 Ill. App. 3d 938, 586 N.E.2d 1376 (1992).

This court considered the same argument in People v. Colley,188 Ill. App. 3d 817, 544 N.E.2d 812 (1989), in which we affirmeda conviction of aggravated criminal sexual assault. In Colley,the defendant cut the victim's neck and chin with a pocketknifesoon after completion of the sexual assault. On appeal, hemaintained that he could not be convicted of aggravated criminalsexual assault because the stabbing occurred too long after thesexual assault to be considered part of the same course ofconduct. In rejecting the defendant's argument, this court foundthat "the stab wounds occurred sufficiently close in time to thesexual acts that they can be said to have been committed duringthe course of the sexual assault." Colley, 188 Ill. App. 3d at820. This court also refused to "draw a bright line between theending of the sexual acts and the bodily harm occurringafterward, as that would defeat the statutory purpose ofprotecting victims from sex offenders." Colley, 188 Ill. App. 3dat 820.

Similarly, in this case, we will not draw a bright line thatwould require the State to establish the precise sequence ofevents in order to prove the aggravated sexual assault upon thevictim. What is significant is not the order in which the forcedintercourse and assault occurred, but that defendant sexuallyassaulted the victim and the infliction of the bodily injuryoccurred during or as a part of the commission of that forciblerape. During his trial, defendant had already argued that he andthe victim had consensual sex and that he hit her a substantialtime after the sex. The jury chose to believe the testimony ofthe State's witnesses was more credible than that of defendant.In light of the narrow scope of review we are compelled to apply,we must conclude that a rational trier of fact could have founddefendant guilty.

II. Prejudicial Newspaper Article

Defendant further asserts that he was denied a fair trialbecause the jury was improperly influenced by a prejudicialnewspaper article. In addition, he claims that the trial courtfailed to thoroughly examine the jurors regarding possibleprejudice.

The State argues that this issue is waived because defendantfailed to object to the court's inquiry at trial. Defendantmaintains, however, that the plain error rule applies because theevidence was closely balanced, citing Supreme Court Rule 615(a)in support of his contention. 134 Ill.2d R. 615(a).

Ordinarily, a defendant must object to an error at trial andinclude the objection in a posttrial motion in order to preservethe issue for review on appeal. People v. Enoch, 122 Ill. 2d 176,186, 522 N.E.2d 1124 (1988). The plain error rule may be invokedin criminal cases when a defendant has not properly preserved anerror for review, where the evidence is closely balanced, orwhere the error adversely affected the defendant's right to afair trial. People v. Carlson, 79 Ill. 2d 564, 404 N.E.2d 233(1980).

Here, the evidence can reasonably be considered closelybalanced. Although there was physical evidence linking defendantto a sex act and to a beating, his conviction rested primarily ona determination that the two acts were roughly contemporaneous--adetermination that rested almost entirely on the perceivedcredibility of the defendant and the victim. Because we find theevidence to be closely balanced, we will address the issue ofallegedly prejudicial publicity during trial on its merits.

"A fair trial requires the participation of impartialjurors." People v. Rogers, 135 Ill. App. 3d 608, 625, 482 N.E.2d639 (1985); citing People v. Jones, 105 Ill. 2d 342, 475 N.E.2d832 (1985). In Illinois, not every situation in which extraneousor unauthorized information reaches the jury results inprejudicial error. People v. Collins, 71 Ill. App. 3d 815, 390N.E.2d 463 (1979). When a defendant alleges that he or she wasdenied a fair trial by virtue of a newspaper article, thedefendant must prove that: (1) the newspaper article wasprejudicial, (2) a juror was exposed to the prejudicial article,and (3) the juror's decision was influenced by the article.People v. Malmenato, 14 Ill. 2d 52, 150 N.E.2d 806 (1958).

Generally, the determination of whether extraneous materialreceived by a juror during the course of the trial is prejudicialis to be made by the trial court. Rogers, 135 Ill. App. 3d at 625("If it is alleged that the jury has been improperly influencedby allegedly prejudicial materials like a newspaper article, thetrial court must determine whether such material prejudiced thedefendant"). The determination rests within the sound discretionof the trial court. Rogers, 135 Ill. App. 3d at 625. Inexercising that discretion, a trial judge should not only rely onwhat the jurors say on interrogation, but also upon the nature ofthe publicity, its content and its potential for prejudice.People v. Barrow, 133 Ill. 2d 226, 549 N.E.2d 240 (1989). Thecourt's determination will not be set aside absent an abuse ofthat discretion. Rogers, 135 Ill. App. 3d at 625, citing Peoplev. Hryciuk, 5 Ill. 2d 176, 125 N.E.2d 61 (1954).

It was improper for the court not to admonish the jury toavoid exposure to publicity about the trial; it was improper forthe jurors to read the article; and it was improper for the courtto reach its decision without even reviewing the article inquestion. We believe that the trial court, when faced with thefact that some of the jurors had read an article bearing directlyon the trial, erred procedurally in failing to properly assessand support its determination that the article was notprejudicial. The court apparently relied solely on the jurors'assurances that the article would not influence their judgment. Defendant also argues that those assurances should not have beenconclusive. We agree.

Nonetheless, in our opinion, defendant has failed to showprejudice and the error of the trial court is harmless. See 134Ill.2d R. 615 (a) ("Any error, defect, irregularity, or variancewhich does not affect substantial rights shall be disregarded").In considering defendant's posttrial motion for reconsideration,the trial court belatedly but correctly determined that thearticle in question contained only information of which thejurors were already aware through trial evidence and testimony. The article stated, also correctly, that defendant was chargedwith aggravated sexual assault and that the State "must prove thebeating and sex occurred roughly the same time in order to get aconviction on the sexual assault charge." (Andy Kravetz, PeoriaWoman, Age 30, Testifies In Sexual Assault Trial, PEORIA J. STAR,July 11, 2002, at B2.)

Because we believe that the absence of prejudicial contentof the article rendered the trial court's decision to moveforward with the trial without dismissing the affected jurorsharmless, we do not reach defendant's challenge to the court'sreliance on the personal assurances of those jurors. III. Victim's Perjured Testimony

Finally, defendant argues that the victim's testimonyexplaining her reasons for writing the recantation letterconstitutes perjury, and therefore he was denied a fair trial.The State counters that it did not use perjured testimony, andthe perjury allegation is not supported by the record. Anydiscrepancy between the victim's direct examination testimony andher testimony on cross-examination was merely an inconsistency.

It is well established that the State's knowing use ofperjured testimony to obtain a criminal conviction violates dueprocess of law. People v. Olinger, 176 Ill. 2d 326, 680 N.E.2d321 (1997). A conviction obtained through the knowing use ofperjured testimony must be set aside. Olinger, 176 Ill. 2d at345. Where the State allows false testimony to go uncorrected,the same principles apply. Olinger, 176 Ill. 2d at 345.

Our supreme court has held that in such cases, a '"strictstandard of materiality'" applies, and the reviewing court mustoverturn the conviction "'if there is any reasonable likelihoodthat the false testimony could have affected the judgment of thejury.'" People v. Lucas, 203 Ill. 2d 410, 787 N.E.2d 113 (2002),citing People v. Coleman, 183 Ill. 2d 366, 392, 701 N.E.2d 1063(1998). "This standard is equivalent to the harmless errorstandards ***." Olinger, 176 Ill. 2d at 349.

We agree with the State that defendant's allegations areconclusory. There is no proof that the victim lied at the trial,only that there were some inconsistencies between her directtestimony and that elicited during crossexamination. The merefact of inconsistency does not constitute proof that the directtestimony she gave at the trial was false. People v. Amos, 204Ill. App. 3d 75, 85, 561 N.E.2d 1347 (1990). Much less does itsupport the charge that the prosecutor knew of perjured testimonybut nevertheless willfully and intentionally used it.

We also find that the notarized recantation letter ismaterial only to the extent that it reflects that the victim hadchanged her story, but this fact does not undermine thecredibility of her trial testimony repudiating the letter. Infact, the victim's retraction fits the classic pattern of therecanting witness in a sex case. The victim and Hirsh bothtestified that her recantation resulted from pressure exerted onher by defendant and his brother-in-law. Despite numerousinconsistencies in her trial testimony, she did not recant theessence of her allegation, that defendant sexually assaulted her.

CONCLUSION

For the reasons stated, we affirm defendant's conviction andthe sentence imposed.

SLATER and BARRY, JJ., concur.