2019 IL App (1st) 152211-U FIFTH DIVISION March 29, 2019 No. 1-15-2211 NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 12 CR 7560 ) THOMAS BROWN, ) Honorable ) John Joseph Hynes, Defendant-Appellant. ) Judge Presiding. ______________________________________________________________________________ JUSTICE LAMPKIN delivered the judgment of the court. Presiding Justice Rochford and Justice Hoffman concurred in the judgment. ORDER ¶ 1 Held: We reverse the judgment of the circuit court of Cook County and remand for a new trial. The trial court abused its discretion when in a criminal sexual assault prosecution it excluded evidence of defendant’s and the alleged victim’s past sexual relations under the rape shield statute where defendant presented a consent defense because: (1) defendant timely raised the issue; (2) with respect to each past sexual encounter, defendant presented reasonably specific information as to date and place; (3) the evidence was relevant to defendant’s consent defense; and (4) the probative value of the evidence outweighed the danger of unfair prejudice. ¶ 2 I. BACKGROUND ¶ 3 The State charged, defendant Thomas Brown, with home invasion and criminal sexual assault stemming from a sexual encounter between defendant and the alleged victim, R.R. on 1-15-2211 March 19, 2012. Defendant filed an answer in which he raised the defense of consent. Following a jury trial, the circuit court of Cook County convicted defendant and sentenced him to consecutive sentences of six years’ imprisonment for home invasion and five years for criminal sexual assault. Defendant was also required to register for life under the Illinois Sex Offender Registration Act (SORA).1 ¶ 4 A. Proceedings Prior to Opening Statements ¶ 5 On the first day of trial, prior to voir dire, various pretrial motions were addressed by the trial court including the State’s motion in limine. Among other things, the State’s motion in limine sought to prohibit defendant from eliciting testimony or argument regarding the prior sexual activities of R.R. In response, defendant argued that he should be permitted to introduce two instances of prior sexual activity between R.R. and defendant based on his assertion of an affirmative defense of consent. During argument, defendant offered that he would testify that he and R.R. engaged in sexual activity in October 2010 at JC’s Hotel in Countryside and in April 2011 at the Dam Woods forest preserve. ¶ 6 The trial court reviewed section 5/115-7 of the Illinois Code of Criminal Procedure of 1963 (the Code), commonly referred to as “the rape shield statute”; and ruled that (1) defendant did not give timely notice of his intention to introduce this evidence; (2) that the date, time, and place offered by defendant was “sketchy at best”; and (3) that the two encounters were too remote in time to be relevant to the issues in defendant’s case and thus were not admissible. ¶ 7 The following day, prior to opening statements, this issue was again raised. Defense counsel stated that defendant would testify that in April 2011 R.R. engaged in oral sex with 1 In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this appeal has been resolved without oral argument upon the entry of a separate written order. - 2 - 1-15-2211 defendant at Hawthorn Dam Woods and in October 2010 he and R.R. had sexual intercourse at JC Motel in Countryside, Illinois. ¶ 8 The trial court stated that he “weighed the probative value and prejudicial effect” and found “that the prejudicial effect outweighs the probative value” ruling that defendant was prohibited from testifying to his prior sexual activity with R.R. on the basis that the sexual activity was too remote in time and for the other reasons set forth on the record in his ruling the previous day. ¶ 9 B. R.R.’s Trial Testimony ¶ 10 R.R. positively indentified defendant in court. She testified that she socialized with defendant and in March 2012 they were friends, acquaintances, and associates. R.R. further qualified this stating that she and defendant were not really “friends, friends” but they all just knew each other. Prior to March 19, 2012, R.R. had no problems with defendant. She testified that she was forty-four years old, four feet eleven inches tall, and weighed eighty-six pounds on March 19, 2012. At the time, R.R. was living at the 4300 block of Harlem in Stickney, Illinois with David Parthin, a roommate and friend. On March 19, 2012, at approximately 4 p.m., R.R. went grocery shopping at the Aldi near Pershing and Harlem. While there she ran into James Dolezal who told her there were people at the woods and invited her to go and have a few beers. R.R. purchased her groceries and went with Dolezal directly to the Dam Woods forest preserve (the Dam) without making any stops. When she arrived at the Dam, R.R. took her groceries out of the car. She testified that defendant, who she had known for ten years, was there along with a man and another woman both of whom she was familiar with. Everyone was drinking and laughing. She testified that she made some sandwiches with her groceries. R.R. had two beers while at the Dam. She testified that she and defendant were not hugging and kissing at the woods. - 3 - 1-15-2211 ¶ 11 Sometime after 5 p.m. R.R. accepted a ride home from defendant. She testified that when leaving the woods she was not intoxicated, stumbling, or having trouble with her balance. She put her groceries into defendant’s vehicle and defendant drove her directly to her apartment. She had no trouble opening her apartment door with her key. Defendant came inside R.R.’s apartment and they had a beer, her third, which she did not finish. Defendant finished his beer, used the restroom, and left R.R.’s apartment. ¶ 12 After defendant left, R.R. was in the apartment alone and locked the screen door, the deadbolt, and the bottom lock of the apartment door as she normally does. R.R. began cleaning up the kitchen and putting her groceries away. She did not expect defendant to return. A few minutes later, she heard someone screaming at the front door “[o]pen the fucking door, bitch.” She did not open the door because she was scared and did not know what was going on. The screaming, yelling, and banging on the door continued and she could hear the door being pried open. At some point it stopped and R.R. thought everything was fine and continued putting her groceries away. Then she heard the door being pried open, the wood around it cracking, and saw the door fly open. ¶ 13 Defendant came into the apartment and grabbed R.R. by placing one hand over her mouth and the other on her wrist. Defendant threw R.R. into the front room. Defendant removed his hand from R.R.’s mouth and grabbed both her arms and threw her down on the couch. R.R. was on her back and defendant was on top of her. He pinned her down and forced her arms up next to her head. Defendant forced R.R.’s shorts completely off of her and pulled up her shirt exposing her chest. Defendant asked R.R. to put a condom on him. R.R. refused. R.R. did not want to have sex with defendant. Defendant put on a condom, but R.R. kept her eyes closed trying to block everything out and did not see him do this. Defendant then got completely on top of R.R. and forced his penis into her vagina. After defendant got off R.R., she jumped up, - 4 - 1-15-2211 grabbed her shorts and other stuff that was on the floor, and told defendant she had to use the bathroom. Before R.R. entered the bathroom defendant responded “thanks a fucking lot.” R.R. waited in the bathroom because she was scared and did not know what to do. She heard defendant slam the door and walked out to make sure everything was okay. R.R. was upset and began throwing everything all over the kitchen table and floor in an effort to find her phone in order to call the police. Approximately 33 minutes after defendant left, R.R. found her phone and called the police, who arrived minutes later. ¶ 14 R.R. spoke to Stickney Detective Corporal Cruz Ortiz, the responding officer, about what had occurred. She went by ambulance to the MacNeal Hospital emergency room where she spoke to nurses and a doctor and underwent a physical exam which included her genitalia after which she experienced discomfort in her vagina. At 8 p.m. she met again with detective Ortiz who was accompanied by Stickney Detective Sergeant Richard Jaczak and identified defendant in a photo line-up. R.R. was released from the hospital that night and returned home to her apartment. ¶ 15 The following day, March 20, 2012, while cleaning up the mess in her apartment, she discovered a hammer inside the door of her apartment which she turned over to the police. On March 21, 2012, R.R. went to the Stickney Police Department and identified defendant in an in- person line-up and met with detectives Jaczak and Ortiz to answer some questions.