{ "id": 2527836, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEROY ROLLINS, Defendant-Appellant", "name_abbreviation": "People v. Rollins", "decision_date": "1991-04-02", "docket_number": "No. 2\u201489\u20140543", "first_page": "86", "last_page": "92", "citations": [ { "type": "official", "cite": "211 Ill. App. 3d 86" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "122 N.E.2d 573", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "577-78" } ], "opinion_index": 0 }, { "cite": "4 Ill. 2d 224", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2701536 ], "weight": 2, "pin_cites": [ { "page": "231-32" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/4/0224-01" ] }, { "cite": "440 N.E.2d 1248", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "1253" }, { "page": "1252-53" } ], "opinion_index": 0 }, { "cite": "91 Ill. 2d 536", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3091828 ], "weight": 3, "pin_cites": [ { "page": "547" }, { "page": "544-47" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/91/0536-01" ] }, { "cite": "441 U.S. 786", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1780385 ], "weight": 3, "pin_cites": [ { "page": "789" }, { "page": "643" }, { "page": "2090" } ], "opinion_index": 0, "case_paths": [ "/us/441/0786-01" ] }, { "cite": "564 N.E.2d 1232", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "pin_cites": [ { "page": "1236-37" }, { "page": "1237" }, { "page": "1237-39" } ], "opinion_index": 0 }, { "cite": "139 Ill. 2d 476", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5574231 ], "weight": 3, "pin_cites": [ { "page": "486" }, { "page": "486" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/139/0476-01" ] }, { "cite": "537 N.E.2d 1080", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "182 Ill. App. 3d 313", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2618791 ], "weight": 3, "pin_cites": [ { "page": "317" }, { "page": "319" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/182/0313-01" ] }, { "cite": "520 N.E.2d 55", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "59" } ], "opinion_index": 0 }, { "cite": "166 Ill. App. 3d 242", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5071274 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "248" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/166/0242-01" ] }, { "cite": "515 N.E.2d 45", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "50" } ], "opinion_index": 0 }, { "cite": "118 Ill. 2d 263", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3188213 ], "weight": 3, "pin_cites": [ { "page": "274" }, { "page": "274" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/118/0263-01" ] }, { "cite": "357 N.E.2d 487", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "65 Ill. 2d 132", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5435255 ], "pin_cites": [ { "page": "137" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/65/0132-01" ] } ], "analysis": { "cardinality": 558, "char_count": 13294, "ocr_confidence": 0.727, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.08180090808383036 }, "sha256": "f8a696660411ef455fedc230624a9d28851e676a07aa7909d5989ef3b04fbb81", "simhash": "1:99735149a7fedec5", "word_count": 2255 }, "last_updated": "2023-07-14T14:56:54.383547+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEROY ROLLINS, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE REINHARD\ndelivered the opinion of the court:\nFollowing a jury trial in the circuit court of Kane County, defendant, Leroy Rollins, was found guilty of criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12\u201413(a)) and was sentenced to a 15-year term of imprisonment.\nOn appeal, defendant contends that the circuit court committed grave error when it failed specifically to instruct the jury that the State was required to prove beyond a reasonable doubt that the complaining witness did not consent to the act of sexual penetration.\nIn view of the single issue raised, it is only necessary to summarize briefly the evidence at trial.\nThe complainant testified that, while he was incarcerated in cell-block 163 of the Kane County jail on pending charges, defendant forced him to engage in an act of anal penetration against his will. Another inmate verified the threat of force by defendant, although he did not witness the act.\nDefendant\u2019s version was that the complainant willingly engaged in the sexual act. A sheriff\u2019s deputy investigating the incident testified that defendant at first denied any sexual contact with the complainant but the next day admitted the sexual act, claiming it was performed with the complainant\u2019s initiation and consent.\nDefendant argues on appeal that, because his defense was that the sexual act was performed with the complainant\u2019s encouragement and consent, the jury should have been specifically instructed that the State bore the burden to prove beyond a reasonable doubt that the complainant never consented to the act. Although acknowledging that he did not object to the omission of this element in the State\u2019s tendered issues instruction, he contends that this omission is grave error that requires reversal pursuant to Supreme Court Rule 451(c) (134 Ill. 2d R. 451(c)); see also People v. Parks (1976), 65 Ill. 2d 132, 137, 357 N.E.2d 487.\nThe jury was given, without objection, the following instructions: \u201cTo sustain the charge of Criminal Sexual Assault, the State must prove the following propositions:\nFirst: That the Defendant committed an act of sexual penetration upon [the complainant], and,\nSecond: That the act was committed by the use of force or threat of force.\nIf you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.\nIf you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.\nIt is a defense to the offense of Criminal Sexual Assault that [the complainant] consented.\nThe word \u2018consent\u2019 means a freely given agreement to the act of sexual penetration in question. Lack of verbal or physical resistance or submission by the victim resulting from the use of force by the Defendant shall not constitute consent.\n\u2022I* 4*\nThe term \u2018force or threat of force\u2019 means the use of force or violence, or the threat of force or violence, including but not limited to when the accused threatens to use force or violence on the victim, and the victim under the circumstances reasonably believed that the accused had the ability to execute that threat.\u201d\nWhen this case was tried before the jury in February 1989, the Illinois Pattern Jury Instructions, Criminal (2d ed. Supp. 1987) (hereinafter IPI Criminal 2d (Supp. 1987)) did not list as an element of the offense of criminal sexual assault that the State prove that the victim did not consent to the act of sexual penetration. (See IPI Criminal 2d No. 11.32 (Supp. 1987).) However, the committee note to IPI Criminal 2d No. 11.32 (Supp. 1987) did recommend that, when proof of force or threat of force is an element of the offense and the defense of consent is raised by the evidence, the jury should be given an instruction that the State must prove the victim did not consent to the act of sexual penetration. IPI Criminal 2d No. 11.32 (Supp. 1987), committee note; see also People v. Haywood (1987), 118 Ill. 2d 263, 274, 515 N.E.2d 45.\nThe State concedes that under IPI Criminal 2d No. 11.32 (Supp. 1987), the court should have included in the instruction on the State\u2019s burden of proof the element that the victim did not consent to the act of sexual penetration. It argues, however, that the issue is waived by the failure of defendant to object at the conference on instructions and to offer an alternative instruction to the court. The State further contends that the grave error exception to the waiver rule is inapplicable under the circumstances here because the case was not close nor was defendant denied a fair trial by omission of this part of the instruction. In particular, the State maintains the instructions taken as a whole and the statements and arguments to the jury by counsel for both parties informed the jury that the State had the burden to prove the victim did not consent to the sexual act.\nThe same issue presented here arose in the context of trials for the offense of aggravated criminal sexual assault in People v. Coleman (1987), 166 Ill. App. 3d 242, 520 N.E.2d 55, and People v. Roberts (1989), 182 Ill. App. 3d 313, 537 N.E.2d 1080, with contrary holdings. In Coleman, the court held that the failure to instruct the jury on the State\u2019s burden to prove lack of consent beyond a reasonable doubt was grave error requiring reversal even though the jury was instructed that consent was a defense. (Coleman, 166 Ill. App. 3d at 248, 520 N.E.2d at 59.) In Roberts, however, the court held that nonconsent is properly proved by inference when the State proves \u201cforce or threat of force\u201d which was set forth in the jury instructions as an element of the offense to be proved by the State. (Roberts, 182 Ill. App. 3d at 317, 557 N.E.2d at 1083.) Accordingly, the court found that the failure to instruct the jury that the State had the burden to prove lack of consent was not grave error and, further, that even were it to be error, any error would be harmless beyond a reasonable doubt. Roberts, 182 Ill. App. 3d at 319, 557 N.E.2d at 1084.\nFor the reasons that follow, we are persuaded that the holding in Roberts, which examines all the circumstances, including all the instructions to the jury, the statements of counsel, and the weight of the evidence, is the proper approach, rather than Coleman, which appears to adopt a per se rule of grave error when the jury is not specifically instructed in an issues instruction that the State has the burden to prove nonconsent.\nIn People v. Haywood (1987), 118 Ill. 2d 263, 515 N.E.2d 45, our supreme court stated that force and consent are opposites in the context of the offense of criminal sexual assault and that to prove the element of force is implicitly to show nonconsent. (Haywood, 118 Ill. 2d at 274, 515 N.E.2d at 50.) In People v. Layhew (1990), 139 Ill. 2d 476, 564 N.E.2d 1232, the supreme court held, in circumstances analogous to the case at bar, that the failure to instruct the jury specifically of the presumption of defendant\u2019s innocence and that the State had the burden of proving defendant guilty beyond a reasonable doubt in order to protect defendant\u2019s right to a fair trial, although error, does not automatically result in a finding of a violation of the right to a fair trial requiring reversal. (Layhew, 139 Ill. 2d at 486, 564 N.E.2d at 1236-37.) The court held that a reviewing court must determine whether the defendant received a fair trial in light of all the circumstances, including all the instructions to the jury, the arguments of counsel, and whether the weight of the evidence was overwhelming. (Layhew, 139 Ill. 2d at 486, 564 N.E.2d at 1237, citing Kentucky v. Whorton (1979), 441 U.S. 786, 789, 60 L. Ed. 2d 640, 643, 99 S. Ct. 2088, 2090.) Although conceding that the evidence in the case before it was short of overwhelming, the court concluded the omission of the basic burden of proof instruction was not reversible error because the jury was properly informed that the State carried the burden of proof beyond a reasonable doubt, the trial judge during voir dire repeatedly invoked the presumption of innocence and the standard of proof beyond a reasonable doubt, and defendant\u2019s attorney repeatedly stressed the State\u2019s burden of proof throughout the trial and that certain of the instructions that the jury did receive referred to the standard of proof beyond a reasonable doubt. Layhew, 189 Ill. 2d at 489-92, 564 N.E.2d at 1237-39.\nWe note, too, that in People v. Huckstead (1982), 91 Ill. 2d 536, 440 N.E.2d 1248, another analogous case, the supreme court refused to reverse the defendant\u2019s conviction of murder even though the trial court had failed to instruct the jury that, in order to convict the defendant of murder, the State was required to prove beyond a reasonable doubt that the defendant was not justified in the use of force. (Huckstead, 91 Ill. 2d at 547, 440 N.E.2d at 1253.) The trial court did instruct the jury that the justifiable use of force would be a defense to murder. The supreme court held that, where the jury was instructed generally on the State\u2019s burden of proof and specifically on the defense of justification, both sides emphasized in closing argument that the State had the burden of proving that the defendant was not justified in the force he used, and the evidence was not very close, there was no grave error. Huckstead, 91 Ill. 2d at 544-47, 440 N.E.2d at 1252-53.\nDefendant relies, in part, on People v. Fryman (1954), 4 Ill. 2d 224, 122 N.E.2d 573, in which the supreme court reversed a rape conviction because the trial court refused a defense instruction that would have informed the jury that the State was required to prove beyond a reasonable doubt that the complaining witness did not consent to the act of sexual intercourse. (Fryman, 4 Ill. 2d at 231-32, 122 N.E.2d at 577-78.) In light of the more recent decisions in Layhew and Huckstead, we do not find Fryman controlling. In any event, Fryman is distinguishable from Layhew and Huckstead, as in Fry-man the issue was preserved for review, no instruction on. or definition of consent (beyond that implicit in the instruction that the State must prove that intercourse took place \u201cforcibly and against her will\u201d) was tendered, and the facts were very closely balanced.\nIn the present case, the jury was instructed as to the State\u2019s burden of proof on the elements of criminal sexual assault, namely, sexual penetration (not in dispute here) and the accomplishment of that penetration by force or the use of force. (See Ill. Rev. Stat. 1987, ch. 38, par. 12\u201413(a)(1).) The jury was also instructed that consent was a defense and given definitions for the terms \u201cconsent\u201d and \u201cforce or threat of force.\u201d Although the trial court erred when it did not specifically instruct the jury that the State must disprove the consent defense, that error does not reasonably appear to have had any effect on defendant\u2019s right to a fair trial looking at all the circumstances at trial.\nIt is clear that the force issue and the consent issue were indeed two sides of the same coin. Both the prosecutor and defendant\u2019s attorney endorsed this formulation during voir dire, in opening statements, and in their final arguments to the jury. For example, in his closing argument the prosecutor stated that the second of the two issues that the State was required to prove was \u201cthat the act was committed by the use of force or the threat of force. In a nutshell, this is the issue of consent. *** [Cjonsent is a defense. Consent means that there was no force or threat of force.\u201d He argued further that the jury should read the instructions on force and consent together because they were \u201creally two sides of the same coin.\u201d\nWhile the evidence against defendant in this case is not overwhelming, it is sufficient to sustain defendant\u2019s conviction. The complainant\u2019s testimony was sufficient to withstand defendant\u2019s contrary version of the events and was corroborated, in part, by another inmate\u2019s testimony. Defendant\u2019s credibility was impeached by his statement made to an investigating deputy sheriff whom defendant told at first that he did not engage in the sexual acts and by introduction into evidence of prior convictions to affect his believability.\nBased on the foregoing, we conclude that the failure specifically to instruct the jury in written form that the State has the burden to prove beyond a reasonable doubt that the complainant did not consent to the act of sexual penetration did not deprive defendant of a fair trial, and, accordingly, such omission was harmless beyond a reasonable doubt under the circumstances.\nThe judgment of the circuit court of Kane County is affirmed.\nAffirmed.\nDUNN and UNVERZAGT, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE REINHARD" } ], "attorneys": [ "G. Joseph Weller and Paul J. Glaser, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.", "Gary V. Johnson, State\u2019s Attorney, of Geneva (Kevin T. Busch, Assistant State\u2019s Attorney, and William L. Browers and Gregory L. Slovacek, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEROY ROLLINS, Defendant-Appellant.\nSecond District\nNo. 2\u201489\u20140543\nOpinion filed April 2, 1991.\nG. Joseph Weller and Paul J. Glaser, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.\nGary V. Johnson, State\u2019s Attorney, of Geneva (Kevin T. Busch, Assistant State\u2019s Attorney, and William L. Browers and Gregory L. Slovacek, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0086-01", "first_page_order": 108, "last_page_order": 114 }