{
  "id": 2594522,
  "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL KEMBLOWSKI, Defendant-Appellant",
  "name_abbreviation": "People v. Kemblowski",
  "decision_date": "1990-08-02",
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  "last_updated": "2023-07-14T22:48:55.467533+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [],
    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL KEMBLOWSKI, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "PRESIDING JUSTICE McMORROW\ndelivered the opinion of the court:\nFollowing a jury trial, defendant Daniel W. Kemblowski was convicted of four counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12 \u2014 14(a)) and sentenced to concurrent terms of 10 years\u2019 imprisonment for each offense. On appeal, he argues that his convictions should be reversed because the State\u2019s evidence was insufficient to prove him guilty beyond a reasonable doubt. Defendant also asserts that he should receive a new trial because the State was erroneously permitted to introduce evidence that complainant is a lesbian, her marriage has never been consummated, and her husband is a homosexual, all of which should have been excluded pursuant to the Illinois rape shield statute. (Ill. Rev. Stat. 1985, ch. 38, par. 115 \u2014 7(a).) Defendant also argues that two counts of aggravated criminal sexual assault should be vacated, since the record reveals only two acts of sexual conduct occurred.\nWe conclude that the Illinois rape shield statute prohibits the State\u2019s introduction of evidence regarding the complainant\u2019s lesbianism and the failure to sexually consummate her marriage, and because we determine that the admission of this evidence prejudiced defendant at trial, we reverse and remand.\nDefendant was convicted for having committed aggravated criminal sexual assault upon S.W. on May 30, 1986. Both the complainant and defendant testified at trial, their versions of the events preceding the assault shared many similarities, and the defendant\u2019s defense at trial was that S.W. had consented to engaging in sexual relations with him. Thus, the instant cause presents what is commonly referred to as an accusation of \u201cdate rape.\u201d See People v. Sandoval (1990), 135 Ill. 2d 159, 552 N.E.2d 726.\nThe encounter between S.W. and defendant began at a tavern in East Dundee, Illinois. They had never met before and struck up a conversation. Defendant mentioned to S.W. that he had recently arrived in Illinois from Florida and that he was staying at a particular apartment complex in Keeneyville. After having several drinks together, defendant offered to take S.W. on a ride on his Harley Davidson. S.W. asked a few of the bar patrons, one of whom she had met on a prior occasion and all of whom she had seen in defendant\u2019s company earlier in the evening, if defendant was \u201ccool.\u201d These individuals told her that he was, and S.W. therefore agreed to take a ride on defendant\u2019s motorcycle. S.W. testified at trial that she told defendant she wanted to return to her car, also parked outside the bar, after going on the motorcycle ride.\nDefendant and S.W. went on the motorcycle ride, and then stopped at another tavern known to be frequented by motorcycle bikers. At this second bar, defendant and S.W. had several drinks together and both ingested some cocaine bought by defendant. While in the bar, S.W. met another biker who took her on a short ride on his Harley Davidson. She testified at trial that she never told the police, after the incident, that she had ingested cocaine or ridden with the second biker while at the tavern.\nDefendant and S.W. left this second bar after approximately an hour, and defendant drove to a nearby forest preserve. S.W. testified at trial that she thought defendant was returning to the tavern, where they met, so that she could return to her car. She also testified that defendant told her the reason for stopping at the forest preserve was because he was having problems with his motorcycle. S.W. stated at trial that she became frightened and repeatedly told defendant she wanted to leave, but that defendant told her not to become concerned. S.W. testified that defendant drove the motorcycle to a pavilion in the forest preserve, where he informed S.W. of his intention to engage in various sexual acts with her.\nS.W. stated that she repeatedly told defendant \u201cno, no *** let\u2019s get out of here *** you don\u2019t understand,\u201d when defendant initially informed her of his intentions. She testified, over defendant\u2019s objection, that by these remarks she meant that she was \u201cgay.\u201d She stated that defendant then repeatedly hit her on the head and face, and threatened her with violence at knifepoint to commit the various sexual acts demanded of her by defendant. S.W. testified that after the alleged assaults, defendant apologized for his behavior, told S.W. to get dressed, suggested that she clean herself at a nearby water pump, and drove S.W. back to her parked car. He then immediately drove away.\nS.W. testified at trial that she followed defendant in order to obtain his license plate number. She then drove home, telephoned a friend, and told the friend that she had been raped. Police were notified, and S.W. was taken to a nearby hospital. S.W. later identified defendant as her assailant in a photo array and in a police station lineup. The medical physician who examined S.W. after the incident testified inter alia that S.W. had bruises on her right temple, left cheek, left side of the forehead, and abrasions to the pelvis, one knee, and shoulder. He stated that these injuries were consistent with S.W. having been struck more than three times, and that in his experience, the injuries were not common to consensual sexual intercourse. He also stated that the injuries were consistent with a fall, although not a fall from a moving motorcycle.\nS.W. testified at trial that she has never \u201csexually consummated\u201d her marriage. At the conclusion of the State\u2019s case in chief, although the defendant stipulated that S.W.\u2019s husband was a homosexual, he objected to the admission of the stipulated fact into evidence. The court admitted the evidence of S.W.\u2019s husband\u2019s homosexuality over the objection of defendant.\nDefendant testified at trial that S.W.\u2019s involvement in sexual relations with him was consensual. He explained that her physical injuries resulted when the motorcycle, which weighed approximately 800 pounds, fell over while both defendant and S.W. were seated thereon and the motorcycle was not moving. Defendant stated that once they had righted the motorcycle and had gotten back on the motorcycle, S.W. again caused the vehicle to fall in the opposite direction. Defendant testified that he blamed S.W. for the falls, and \u201cslapped\u201d her a few times on the face after he had pulled her from the motorcycle. Defendant indicated on photographs taken of the motorcycle the places where the vehicle had been damaged as a result of these falls. He also explained that S.W. had become angry at the forest preserve when she learned that defendant had not bought more cocaine for their use after engaging in sexual intercourse.\nBased upon this evidence, the jury found defendant guilty of four counts of aggravated criminal sexual assault, and the court sentenced defendant to four concurrent terms of 10 years\u2019 imprisonment. Defendant\u2019s timely appeal followed.\nThe defendant argues that the State\u2019s evidence was insufficient to prove him guilty beyond a reasonable doubt of the charges of aggravated criminal sexual assault. We have closely reviewed the evidence and find sufficient evidence to sustain the jury\u2019s findings of guilt. In contrast to People v. Wright (1986), 147 Ill. App. 3d 302, 497 N.E.2d 1261, and People v. Jackson (1989), 178 Ill. App. 3d 785, 533 N.E.2d 996, the testimony of the complaining witness in the case at bar did not verge on the incredible, nor did her testimony contain serious or glaring inconsistencies.\nDefendant also asserts that the trial court committed reversible error when it permitted the State, over defendant\u2019s objection, to present evidence that S.W. is a lesbian, that she has never sexually consummated her marriage, and that her husband is a homosexual. At the time of defendant\u2019s trial, the Illinois rape shield statute, in pertinent part, provided:\n\u201ca. In prosecutions for aggravated criminal sexual assault, *** the prior sexual activity or the reputation of the alleged victim is inadmissible except as evidence concerning the past sexual conduct of the alleged victim with the accused.\u201d Ill. Rev. Stat. 1985, ch. 38, par. 115-7(a).\nIn People v. Sandoval (1990), 135 Ill. 2d 159, 552 N.E.2d 726, the Illinois Supreme Court stated that the language of the rape shield statute \u201cis clear and unambiguous; it leaves no room for introduction of reputation or specific act evidence from any party in the action\u201d and that \u201ca review of the legislative history supports a construction which prohibits anyone from introducing evidence of the victim\u2019s sexual history unless it relates to the relationship between the victim and the accused.\u201d (Emphasis in original.) (135 Ill. 2d at 171.) In light of Sandoval, the evidence regarding S.W.\u2019s sexual preferences and her failure to consummate her marriage with her homosexual husband should have been excluded in accordance with the Illinois rape shield statute.\nThe State contends that this evidence was properly admitted because it pertained to S.W.\u2019s \u201cstatus\u201d rather than to her past sexual activities with men other than defendant. The State refers us to no reported Illinois decision that draws the distinction between sexual \u201cstatus\u201d and sexual \u201cactivities\u201d as suggested by the State herein. We also note that the Illinois Supreme Court in Sandoval made no exception to the rape shield statute by virtue of the complaining witness having a \u201csexual status\u201d as urged by the State on appeal. We decline to adopt the State\u2019s position that a complaining witness\u2019 admission to being a lesbian should be characterized as a type of sexual \u201cstatus,\u201d since this admission, by definition, pertains to the witness\u2019 sexual activities with another of the same gender. Consequently, we hold that the rape shield statute in aggravated sexual assault cases precludes admission of evidence that the victim was a lesbian, that a marriage was not sexually consummated, or that a spouse is homosexual.\nWe also conclude that the erroneous admission of this evidence was prejudicial to defendant and necessitates a new trial of defendant\u2019s guilt. The pivotal issue at trial was whether S.W. consented to sexual relations with defendant during the incident in question. Resolution of the credibility of S.W. and defendant with respect to this issue was the central responsibility of the jury upon its deliberation of defendant\u2019s guilt (see, e.g., People v. Sales (1986), 151 Ill. App. 3d 226, 502 N.E.2d 1221), and S.W\u2019s avowed preference for sexual activities with women necessarily affected the jury\u2019s assessment of whether S.W. agreed to sexual activities with defendant. The testimony of S.W. and defendant was substantially similar in many important respects, except with regard to whether S.W. consented to intimate relations with defendant. Also, the injuries suffered by S.W. did not overwhelmingly prove that S.W. did not consent to the sexual acts. Consequently, we cannot say that the erroneous admission of this evidence did not prejudice defendant\u2019s defense at trial.\nIn view of this disposition, we need not and do not address defendant\u2019s challenge to the sentences he received.\nFor the reasons stated, the judgment of the circuit court of Cook County is reversed and the cause remanded for a new trial.\nReversed and remanded.\nJIGANTI and JOHNSON, JJ., concur.",
        "type": "majority",
        "author": "PRESIDING JUSTICE McMORROW"
      }
    ],
    "attorneys": [
      "Randolph N. Stone, Public Defender, of Chicago (Z. Peter Tokatlian, Assistant Public Defender, of counsel), for appellant.",
      "Cecil A. Partee, State\u2019s Attorney, of Chicago (Inge Fryklund, James Fitzgerald, and Jeanne A. Morrow, Assistant State\u2019s Attorneys, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL KEMBLOWSKI, Defendant-Appellant.\nFirst District (4th Division)\nNo. 1-87-3094\nOpinion filed August 2, 1990.\nRandolph N. Stone, Public Defender, of Chicago (Z. Peter Tokatlian, Assistant Public Defender, of counsel), for appellant.\nCecil A. Partee, State\u2019s Attorney, of Chicago (Inge Fryklund, James Fitzgerald, and Jeanne A. Morrow, Assistant State\u2019s Attorneys, of counsel), for the People."
  },
  "file_name": "0824-01",
  "first_page_order": 844,
  "last_page_order": 850
}