{ "id": 4268948, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KELLY J. DENBO, Defendant-Appellant", "name_abbreviation": "People v. Denbo", "decision_date": "2007-04-19", "docket_number": "No. 4\u201405\u20140516", "first_page": "994", "last_page": "1010", "citations": [ { "type": "official", "cite": "372 Ill. App. 3d 994" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "582 N.E.2d 690", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "pin_cites": [ { "page": "697" } ], "opinion_index": 0 }, { "cite": "145 Ill. 2d 188", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5596168 ], "year": 1991, "pin_cites": [ { "page": "203" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/145/0188-01" ] }, { "cite": "663 N.E.2d 32", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "pin_cites": [ { "page": "36" } ], "opinion_index": 0 }, { "cite": "278 Ill. App. 3d 515", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1156817 ], "year": 1996, "pin_cites": [ { "page": "520" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/278/0515-01" ] }, { "cite": "25 N. Ill. U. L. Rev. 151", "category": "journals:journal", "reporter": "N. Ill. U. L. Rev.", "year": 2004, "pin_cites": [ { "page": "164-65" } ], "opinion_index": 0 }, { "cite": "496 A.2d 1067", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 11322122 ], "year": 1985, "pin_cites": [ { "page": "1070" } ], "opinion_index": 0, "case_paths": [ "/a2d/496/1067-01" ] }, { "cite": "34 Stetson L. Rev. 729", "category": "journals:journal", "reporter": "Stetson L. Rev.", "year": 2005, "pin_cites": [ { "page": "757" } ], "opinion_index": 0 }, { "cite": "117 Harv. L. Rev. 2341", "category": "journals:journal", "reporter": "Harv. L. Rev.", "year": 2004, "pin_cites": [ { "page": "2363" } ], "opinion_index": 0 }, { "cite": "29 Vt. L. Rev. 215", "category": "journals:journal", "reporter": "Vt. L. Rev.", "year": 2004, "pin_cites": [ { "page": "248" } ], "opinion_index": 0 }, { "cite": "26 Whittier L. Rev. 225", "category": "journals:journal", "reporter": "Whittier L. Rev.", "year": 2004, "pin_cites": [ { "page": "252" } ], "opinion_index": 0 }, { "cite": "128 Cal. Rptr. 2d 783", "category": "reporters:state", "reporter": "Cal. Rptr. 2d", "weight": 7, "year": 2003, "pin_cites": [ { "page": "789-90", "parenthetical": "Brown, J., dissenting" }, { "page": "786" }, { "page": "786" }, { "page": "786" }, { "page": "786" }, { "page": "786" }, { "page": "786" } ], "opinion_index": 0 }, { "cite": "60 P.3d 183", "category": "reporters:state_regional", "reporter": "P.3d", "weight": 7, "year": 2003, "pin_cites": [ { "page": "188", "parenthetical": "Brown, J., dissenting" }, { "page": "185" }, { "page": "185" }, { "page": "185" }, { "page": "185" }, { "page": "185" }, { "page": "185" } ], "opinion_index": 0 }, { "cite": "29 Cal. 4th 756", "category": "reporters:state", "reporter": "Cal. 4th", "case_ids": [ 777245 ], "weight": 7, "year": 2003, "pin_cites": [ { "page": "764", "parenthetical": "Brown, J., dissenting" }, { "page": "760" }, { "page": "759" }, { "page": "759" }, { "page": "760" }, { "page": "760" }, { "page": "760" } ], "opinion_index": 0, "case_paths": [ "/cal-4th/29/0756-01" ] }, { "cite": "2003 Ill. Laws 2872", "category": "laws:leg_session", "reporter": "Ill. Laws", "opinion_index": 0 }, { "cite": "537 N.E.2d 1080", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "1083" }, { "page": "1084", "parenthetical": "characterizing consent as a defense but not as an affirmative defense" } ], "opinion_index": 0 }, { "cite": "182 Ill. App. 3d 313", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2618791 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "317" }, { "page": "318" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/182/0313-01" ] }, { "cite": "691 N.E.2d 867", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1998, "pin_cites": [ { "page": "870-71" }, { "page": "870-71" }, { "page": "871" }, { "page": "871", "parenthetical": "Knecht, J., specially concurring" } ], "opinion_index": 0 }, { "cite": "294 Ill. App. 3d 903", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 35397 ], "weight": 4, "year": 1998, "pin_cites": [ { "page": "908" }, { "page": "908" }, { "page": "908" }, { "page": "909-10" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/294/0903-01" ] }, { "cite": "515 N.E.2d 45", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 7, "year": 1987, "pin_cites": [ { "page": "50-51" }, { "page": "50" }, { "page": "50" }, { "page": "50" }, { "page": "50" }, { "page": "50" }, { "page": "50-51" } ], "opinion_index": 0 }, { "cite": "118 Ill. 2d 263", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3188213 ], "weight": 7, "year": 1987, "pin_cites": [ { "page": "274-75" }, { "page": "274" }, { "page": "274" }, { "page": "274" }, { "page": "274" }, { "page": "274" }, { "page": "274-75" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/118/0263-01" ] }, { "cite": "759 N.E.2d 83", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "92" }, { "page": "92" } ], "opinion_index": 1 }, { "cite": "325 Ill. 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KELLY J. DENBO, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE APPLETON\ndelivered the opinion of the court:\nA jury found defendant, Kelly J. Denbo, guilty of aggravated criminal sexual assault (720 ILCS 5/12 \u2014 14(a)(2) (West 2004)) in that she persisted in an act of vaginal penetration after the victim withdrew her consent. The trial court sentenced defendant to imprisonment for seven years. She appeals on the ground of insufficiency of the evidence, arguing that the State failed to prove the victim\u2019s withdrawal of consent or her own use of force.\nDefendant put her hand into RH.\u2019s vagina during otherwise consensual sexual relations. R.H. pushed defendant twice \u2014 harder the second time \u2014 intending to signify that she no longer consented to the sexual penetration. Defendant removed her hand from R.H.\u2019s vagina on the second push. Looking at the evidence in a light most favorable to the prosecution, we conclude that no rational trier of fact could find, beyond a reasonable doubt, that the first push objectively communicated to defendant a withdrawal of consent. The State failed to prove the element of force. Therefore we reverse the trial court\u2019s judgment.\nI. BACKGROUND\nThe information charged that on September 27, 2004, defendant committed aggravated criminal sexual assault (720 ILCS 5/12\u2014 14(a)(2) (West 2004)) \u201cin that[,] by the use of force[,] [s]he placed her fist into the vagina of [R.H.] and, in doing so, *** caused bodily harm, vaginal trauma, to *** [R.H.].\u201d\nAt trial on April 20, 2005, the State called R.H., the adult complainant, as its first witness. Because she was extremely hard of hearing, practically deaf, she testified through an interpreter. R.H. first met defendant in June 2004 at a nursing home, where they both worked. They developed a romantic relationship. On September 27, 2004, they both had the day off and spent it together, taking defendant\u2019s one-year-old nephew and three-year-old niece to McDonald\u2019s, Rockome Gardens, and a video store. Afterward, R.H. stayed for a cookout at defendant\u2019s house in Tuscola. Defendant drank beer while grilling the steaks, but R.H. abstained from alcohol that evening. After supper, R.H. went to defendant\u2019s bedroom \u201cand just kept waiting and waiting and waiting\u201d while defendant talked on the telephone. \u201c[Ojkay,\u201d R.H. thought. \u201c[She] waited a little longer[ ] and *** thought [that defendant] was going to give the kids a bath.\u201d Eventually, she told defendant she was \u201cgo[ing] to the store [to] get a diet [C]oke and would be right back.\u201d Defendant appeared to be \u201cout of it\u201d: \u201cshe was very slow to respond and *** slurred her words.\u201d Upon returning from the store, R.H. noticed the lights were off in the bedroom \u2014 they were on when she left \u2014 and three candles were burning. She did not see defendant. R.H. lay down, clothed, on defendant\u2019s bed. Defendant entered the bedroom. \u201cShe had a robe on,\u201d R.H. testified, \u201cand like a ballet outfit or something. I really don\u2019t know. I was kind of hum.\u201d\nHere is what happened next, according to R.H.:\n\u201cWell, I was [lying] on the bed[,] and she was on me \u2014 kind of straddled me[ \u2014 ]and kissing my facet,] and then she pulled me forward. She grabbed both my arms[,] and then she took off my top and my bra[,] and all of that was within \u2014 say[,] a short period of time. Then she shoved me, and she was rough. I thought, [H]um. I had no clue as to what was going on, and then she took my shorts off and my underwear off.\nQ. What happened next?\nA. Well, then she went right through my vagina. I didn\u2019t scream. I didn\u2019t do anything. I knew the kids were asleep. Knew the kids were asleep [,] and she kept pushing me.\nQ. What did you do to her?\nA. And it continued[,] and then the second time I tried to push her away[,] and it was hard enough. I was able to get up. I went to the bathroom[,] and I was bleeding.\nQ. Let\u2019s back up a little bit. You indicated you were [lying] on the bed. How was Kelly on you?\nA. Kelly was kneeling on top of me and had my legs spread apart so she was in between my legs.\nQ. You said she \u2018went through\u2019 you. Explain what was used to go through you?\nA. Right there, her hand. (Indicating)\nQ. Where did she place her hand?\nA. Went through the pelvic area. I tried to push her back, but she continued!,] and she just kept continuing, and then I pushed her again, and then I went to the bathroom, and I was bleeding. I came back out and was looking for her!,] and she was outside at that point and crying.\nQ. You went to the bathroom and noticed you were bleeding?\nA. Yes.\nQ. Where was the bleeding from?\nA. Well, the reason I was bleeding is because she hurt me. She used her hand to go direct[ly] through my vagina, yes, my vagina.\nQ. When was the next time you saw the [defendant?\nA. Well, I went to the bathroom \u2014 I went into the bathroom!,] and I came back out and was talking to her!,] and I asked her at that point why she did it. She said she didn\u2019t know why she hurt me. I continued to ask her. I stayed at Kelly\u2019s because I needed an answer from her as to why she hurt me.\u201d\nBecause R.H. was deaf, she and defendant often communicated with one another in writing. R.H. offered \u2014 and the trial court admitted into evidence, over defendant\u2019s foundational objection \u2014 eight handwritten letters R.H. had received from defendant. According to R.H., defendant wrote People\u2019s exhibit No. 1 on September 27, 2004, shortly after the incident. It says: \u201cI will let you know tomorrow night. Is [illegible] us. Okay[?] I love you. I\u2019m taking a shower.\u201d\nR.H. testified she received People\u2019s exhibit No. 2 on September 28, 2004. That letter reads as follows:\n\u201cI know that no amount of apologies [is] going to be okay. I am sorry that that happened. Okay[?] I can\u2019t believe that I could do what someone did to me. It makes me fucking sick to my stomachf,] and I am sorry. I am worried. I do want you to be okay. I should have said something sooner. I\u2019ve done wrongf,] and it will never be forgiven or forgotten. I am truly sorry[,] though. Be careful. I don\u2019t want to lose you. That\u2019s not what I want. I scared you, yes. I can apologize forever for that. There [is] no amount of apologies I can give you. Yes, you are to[o] good for me. I love you[,] and I hurt you. This is something that can\u2019t be forgiven. I\u2019m so sorry. I never meant for this to happen. We probably need some time apart for awhile. I need to straighten out my scary side. Med[ication]s or something. I don\u2019t want to break up. Maybe I need to get rid of [the] scary side of me. I know I have one. We need time apart\u2014 okay[?] I\u2019m sorry it had to end this way. I will not quit [because] I love my residents. I am sorry I hurt you last night. I don\u2019t want to hurt anyone else that way again[,] [including] you. I\u2019m sorry. I swear to you that I did not hear you say no. I am not the kind of person that does this. I care that I hurt you. I\u2019m sorry you\u2019re shocked. I\u2019m sorry I did this. I\u2019m just sorry. Okay[?] I knew you can\u2019t take me back. That\u2019s understandable. There [is] no amount of sorrys I can give you. Pm sorry. Please let me know if you\u2019re going to send me to jail or tell work. Okay[?] So I can quit and go elsewhere. I am sorry about what happened.\u201d (Emphasis in original.)\nR.H. testified that defendant sent her the remaining letters in October 2004 through an intermediary at work. People\u2019s exhibit No. 3 reads as follows:\n\u201cI do love you and care for you. I\u2019m very worried about you. I know you said not to. I\u2019ll do it anyway. My feelings about what I\u2019ve done are mixed. I should die for what I\u2019ve done. I feel like I should not be with you because of this. I want to be with you. But after what I\u2019ve done[,] I feel horrible, sick. I don\u2019t feel like I deserve you. We need time[,] okay[?] I\u2019m going to have to feel right about myself before I can go on with you[,] okay[?] Please understand. I do want you[,] okay[?] I just need time to fix myself.\u201d\nPeople\u2019s exhibit No. 4 appears to consist of three letters. Here is the first one:\n\u201cI did read your note. I do get mean sometimes, when I\u2019m drinking. Not always[,] though. And I\u2019m sorry that I hurt you when I do. I do realize that I\u2019ve done it[,] and I\u2019m sorry. It makes me feel like shit when I do[,] and no amount of apologizing can make up for it. I only hope I can change and give you the life and love you want[,] because I want it with you. I love you. Very much. I\u2019ll try to show it better. I\u2019m learning[.] I\u2019m thinking that I love you and I don\u2019t want to hurt you anymore. I do have a temper. It comes out quick[ly]. I\u2019ll learn to deal with it[,] okay[?] I love you. I don\u2019t want to lose you[,] okay[?] Right now I\u2019m by myself on [the] west hall[,] and it\u2019s a lot of work right now. I\u2019m sorry I\u2019m late writing you. I\u2019ll do my hardest to please you forever. You are my only true love. I will always love you. Let me know if you are coming over tonight.\u201d\nThe second letter in People\u2019s exhibit No. 4 reads as follows:\n\u201cI know it seems like I don\u2019t care. But I do. It just so happens that I am under a great deal of stress. The kids, my parents, brother. My job. I have blood in my bowels because I am under too much stress. Then I broke a blood vessel in my eye. It[\u2019]s been a very stressful week. Also I hurt you. That[\u2019]s just making it all the more stressful. I do care. But I\u2019m at my stress point right now. I do love you. But I asked [for] time away to sort out my life. I need to unstress myself. I[\u2019]m getting to the point of saying fuck it to life and go[ing] away. But I know I can\u2019t. I just need time[,] okay[?] Not forever. I\u2019m sorry I haven\u2019t been nice. I\u2019m just stressed out. A lot of crap is piling on me[,] and I\u2019m sorry for taking it out on you. [The] [r]eason I touched you like that down [there] is I thought you would be okay with that kind of lovemaking. I was way to[o] rough. I[\u2019]m never like that[,] okay[?] I should have asked you about it. I was to[o] rough when I should have been gentle with you[,] and I take full responsibility for what I\u2019ve done. Now all you can do is give me time and space. I love you[,] okay[?]\u201d\nIn the third letter in People\u2019s exhibit No. 4, defendant said:\n\u201cI am so sorry I hurt you that way. I can\u2019t believe I was capable of doing that to anyone. What exactly do they have to do to fix you[?] I am responsible for this. I feel the need to be killed in some horrible way right now. I feel that I don\u2019t need to be forgiven, ever. I am very sorry this happened. We do need time because I need to fix my temper, drinking. Basically, myself. I am truly sorry that I did this. I love you and did not want to hurt you. Please believe me when I say it wasn\u2019t intentional. I am sorry. I know we need to talk. We will. I need time to sort out what you just told me. I am sorry.\u201d\nPeople\u2019s exhibit No. 5 says: \u201cI really do hope you[\u2019]r[e] not upset with me. I want you on Sunday and Monday. Is that okay[?] I won\u2019t go if you[\u2019]r[e] going to be upset. I love you and wanna a few days with you. But I promised my cousins. Don\u2019t be angry.\u201d\nThe final letter, People\u2019s exhibit No. 6, says: \u201cFirst of all[,] I know in my heart I did not rape you. I did[,] however!,] make you bleed!,] and for that I\u2019m sorry.\u201d\nThe prosecutor asked R.H. the following:\n\u201cQ. Was this touching without your consent?\n* * *\nA. No, no[,] I did not consent to that. I did not consent to that.\u201d On cross-examination, defense counsel asked R.H.:\n\u201cQ. You said earlier, I think, that Kelly was kneeling on the bed[,] on top of you?\nA. I had my legs spread apart!,] and she was in between them, between my legs.\nQ. You said she removed your top and your bra?\nA. Yes.\nQ. Did you try to stop her from doing that?\nA. No.\nQ. And you said she removed your pants and underwear?\nA. Yes, yes!,] that is correct.\nQ. Did you try to stop her from doing that?\nA. No.\nQ. I think you said!,] in your direct testimony!,] that then Kelly \u25a1went!\u2019] \u2014 and your words were! ] [\u2018]right through my vagina!\u2019]?\nA. That is correct.\nQ. Could you explain what you mean by that!,] exactly?\nA. Well, the hand itself went right through my privates. I tried to push her back, but she continued!,] and then I pushed her again!,] and then I was able to get up and go to the bathroom!,] and that is when I noticed I was bleeding.\u201d\nR.H. admitted spending the rest of the night with defendant in her bed. She admitted having sex with defendant on three occasions before the incident. These sexual encounters were all in defendant\u2019s bedroom. After September 27, 2004, R.H. visited defendant\u2019s house one time. It was defendant\u2019s idea that she come over, but when she saw that defendant had been drinking, she went home.\nOn redirect examination, the prosecutor asked R.H. why she did not immediately leave the premises after defendant pushed her hand through her vagina. R.H. answered: \u201cBecause I wanted to know why she had hurt me[,] and I had no clue. I never *** could understand why.\u201d The trial adjourned for the day.\nOn April 21, 2005, the State called a Tuscola police officer, Richard A. Lamb, as its next witness. He testified he interviewed R.H. on November 9, 2004. The interview was originally scheduled to occur two weeks earlier, but he had to cancel that appointment because of difficulty finding an interpreter. \u201c[D]ue to the time frame,\u201d the letters (People\u2019s exhibit Nos. 1 through 6) were the only physical evidence the police collected in the case.\nThe State then called Marlene Kremer, a family practice physician from Sarah Bush Lincoln Health Center in Mattoon. She testified that on September 30, 2004, she received a message at her office requesting that she telephone RH.\u2019s roommate, Donna Goad. \u201cThe message said that [R.H.] had been raped and was very upset and she needed an appointment.\u201d Kremer returned the telephone call and scheduled an appointment for that same day. R.H. arrived at the office with Goad, looking \u201cvery anxious and upset.\u201d The prosecutor asked Kremer:\n\u201cQ. How did she describe that she had been injured?\nA. She said that three days before, her long[ ]time girlfriend had \u2014 was intoxicated[ ] and had forced her to have \u2014 using some type of an object, which I do not know what the object was, had repeatedly thrust this object into her vagina. Then she was able to fight her off and left.\u201d\nThe wall of R.H.\u2019s vagina \u201cwas very abraded. It was kind of like a rug burn. There were no obvious lacerations. There was no ble\u00e9ding at the time of this exam, but it was just very abraded, irritated\u201d \u2014 as if the vagina had suffered from \u201c[ejxcessive friction.\u201d Kremer would have expected R.H.\u2019s vagina to look like this if R.H.\u2019s girlfriend had done what R.H. said. It was possible that the vagina bled at the time of the injury.\nThe prosecutor asked Kremer whether posttraumatic stress syndrome was \u201caccepted as a behavioral condition that [could] result from sexual assault\u201d and whether she had \u201cdealt with\u201d this condition in the course of her profession. To both questions, Kremer answered yes. The prosecutor asked her to describe the \u201cmodel characteristics\u201d of the syndrome. Kremer answered:\n\u201cIt\u2019s a person who has either witnessed or been a victim of a severely traumatic event, where they felt very hopeless, helpless\u2014 had no control and[,] subsequent to that[,] *** they have either [sic] flashback recollections. They avoid situations or things that make them recall that event. They have changes in their behavior, either [sic] difficulty sleeping, you know, more irritable, those type[s] of behaviors.\u201d\nKremer continued treating R.H. after September 30, 2004 \u2014 who, in fact, was her patient before then. Kremer saw her again on October 22, 2004. At that time, she diagnosed posttraumatic stress disorder. R.H. was \u201chaving crying spells. She was still able to go to work[ ] but was otherwise not doing much of anything else.\u201d She saw R.H. again on November 12, 2004, and found her to be still suffering from the disorder. She saw no symptoms of the disorder before September 30, 2004.\nThe State rested, and defendant moved for a directed verdict on the ground that the State had failed to prove \u201cthe use of force or threat of force.\u201d See 720 ILCS 5/12 \u2014 14(a), 12 \u2014 13(a)(1) (West 2004). Defense counsel argued: \u201cAll of the evidence points to the fact that this was a voluntary interaction. It occurred in Ms. Denbo\u2019s home, in her bedroom, on her bed, where the alleged victim came in and la[y] down and voluntarily *** allowed Ms. Denbo to undress her *** and then engaged in a sexual act that she didn\u2019t object to.\u201d The prosecutor responded that because R.H. objectively showed her lack of consent by pushing defendant and defendant nevertheless continued to ram her hand into R.H.\u2019s vagina, the State had proved the element of force. The trial court denied the motion for a directed verdict.\nDefendant called her mother, Nancy Denbo, as her first witness. Denbo testified she lived in a small two-bedroom house on Overton Street in Tuscola. In the summer of 2004, R.H. began visiting defendant at Denbo\u2019s house two or three times a week. On September 27, 2004, Denbo worked from 2 to 10 p.m. at the nursing home. After coming home between 10:30 and 10:45 p.m., she took a shower and watched television with her husband, her son, her grandchildren, defendant, and R.H. Nothing unusual happened that evening after she got home; she was aware of no disturbance. Because \u201cthe kids\u201d (apparently, defendant\u2019s nephew and niece) typically \u201cg[o]t up pretty early,\u201d Denbo probably rose between 7 and 7:30 a.m. on September 28, 2004. R.H. was still in the house, and nothing seemed amiss. After breakfast, Denbo and R.H. \u201cdrank coffee out in the carport\u201d for a couple of hours while the children played outside. R.H. left between 11 and 11:30 a.m. because Denbo had to go in and start getting ready for work. After September 27, 2004, R.H. came over twice for dinner and even stayed overnight sometime in October 2004.\nDefendant called Goad as her next witness. She testified she lived in Atwood with her son and R.H. For the past four years, Goad had been a dietary supervisor at the nursing home. She was R.H.\u2019s boss. Goad was only casually acquainted with defendant; she knew that defendant worked at the nursing home and had a relationship with R.H. The evening of September 28, 2004, Goad saw R.H. at home and noticed nothing unusual about her behavior at that time. On September 29, 2004, R.H. came to work an hour early to speak with Goad. R.H. did not finish her shift that day; \u201cshe *** said that she was bleeding.\u201d She also missed work on September 30, 2004, because \u201cshe was still having problems and she wasn\u2019t going to be able to work.\u201d Goad explained to her the nursing home\u2019s policy: \u201cif you miss two days because of illness, *** you have to go to the doctor.\u201d Therefore, on September 30, 2004, Goad accompanied R.H. to the doctor\u2019s office. A week or two later, at R.H.\u2019s request, Goad set up an appointment for her with a counselor.\nThe defense next called Mary Burton, who testified that she lived in Tuscola, across the street from defendant. She had seen R.H. visiting at defendant\u2019s residence during the summer of 2004, when they were dating. R.H. was there \u201c[u]p to four or five times a week, given their schedule at work.\u201d R.H. typically arrived in her white \u201cmini-truck.\u201d\nDefendant then took the stand. She testified that she lived with her mother, brother, nephew, and niece in Tuscola. She met R.H. around the end of May 2004, and by the end of June 2004, they were lovers. From June until October 2004, R.H. visited defendant\u2019s house three or four times a week and usually stayed overnight. On September 27, 2004, R.H. came over for a cookout. Defendant had two beers that evening but did not become intoxicated. After dinner, she and defendant watched a couple of movies with the children. Defendant then bathed and dressed the children and handed them over to her brother\u2019s care so that she could be alone with R.H. Defendant took a shower around 9 or 9:30 p.m., and while R.H. was at the store, she set the scene in the bedroom: lit the candles, put on some music, and turned off the lights. Upon returning, R.H. lay on the bed. Defendant entered the bedroom, wearing a robe and a silky negligee \u2014 \u201ca white!,] strange teddy thing.\u201d She lay down next to R.H. and talked with her for a few minutes. (R.H. could understand her if she raised her voice.) Then they \u201cstarted getting intimate,\u201d \u201ckissing and touching.\u201d Defendant helped R.H. remove her top and bra and then her shorts and boxer underwear.\nDefendant testified:\n\u201cWe were having \u2014 I was giving her oral sex[,] and I was!,] I guess!,] down in that area, and I began to digitally!,] with two fingers, insert them into her vagina!,] and we had sex relations that way.\nQ. Okay. Now!,] at that point!,] what did [R.H.] do, if anything?\nA. Well, I guess she was enjoying it. She didn\u2019t tell me to stop. She didn\u2019t push me away.\nQ. During this time, up to this point, had she said anything to you?\nA. Not that I can recall.\nQ. What happened next[,] then?\nA. I guess she was done, and my head was still in that particular area, so she nudged my shoulder. And I didn\u2019t hear her the first time, because music was on and my head was in an uncompromising [sic] position.\nQ. Okay.\nA. But she nudged my shoulder[,] and I looked up[J and she said she was finished[,] and I said okay, and at that time she went to the bathroom.\nQ. Okay.\nA. She came back and said she was bleeding a little. She said she was hurting[,] and I apologized. I didn\u2019t know that I might have hurt her a little bit digitally, doing that to her.\nQ. How did she appear to you then?\nA. She was a little scared about the bleeding. She was bleeding a little bit. I do admit that. But she was okay. We talked, and then we wound up going to bed not too long after [ward].\nQ. Did she, during the time you were having sexual relations together, did she ever scream or cry out, or anything?\nA. No, not that I can recall.\nQ. And did she stay there the night with you?\nA. Yes.\nQ. And slept there with you in your bed?\nA. Yes.\u201d\nR.H. was still in bed with defendant the next morning when the children leaped onto the bed and awaked them. After defendant made breakfast for the children and got them dressed, she and R.H. went outside with defendant\u2019s mother and drank coffee.\nAccording to defendant, R.H. spent the night at defendant\u2019s house on two occasions after September 27, 2004. Her relationship with R.H. deteriorated, and defendant broke it off about the second week in October 2004. Defendant disagreed that all of the letters in People\u2019s exhibit Nos. 1 through 6 pertained to the incident of September 27, 2004. According to her, some of the letters predated the incident. She claimed to have written People\u2019s exhibit Nos. 1, 2, and 5 during the summer of 2004 (before September). She claimed to have written People\u2019s exhibit No. 3 at work around September 30, 2004, and People\u2019s exhibit Nos. 4 and 6 right after September 27, 2004. Defendant denied forcibly having sex with R.H.\nOn cross-examination, defendant testified that when she gave oral sex to R.H. in the bedroom on September 27, 2004, R.H. had an orgasm. Defendant denied using force when digitally penetrating her, although she remarked that \u201cfingernails [could] scrape.\u201d Defendant rested.\nIn its case in rebuttal, the prosecutor presented People\u2019s exhibit No. 7, a record of defendant\u2019s conviction in Georgia for deposit account fraud. The State also recalled R.H., who denied that defendant performed oral sex on her the night of September 27, 2004, and denied having an orgasm when defendant digitally penetrated her that night. According to R.H., she visited defendant\u2019s house once after September 27, 2004: on October 1 or 2, 2004. Defendant telephoned her, and R.H. came over and stayed with the children for about 10 minutes, until she perceived that defendant had been drinking, whereupon she left. R.H. denied spending the night at defendant\u2019s house anytime after September 27, 2004. The State rested, and the jury found defendant guilty of aggravated criminal sexual assault.\nOn May 25, 2005, the trial court sentenced defendant to 7 years\u2019 imprisonment, with credit for 66 days, followed by 3 years of mandatory supervised release.\nThis appeal followed.\nII. ANALYSIS\nThe State charged defendant with aggravated criminal sexual assault within the meaning of section 12 \u2014 14(a)(2) of the Criminal Code of 1961 (Code) (720 ILCS 5/12 \u2014 14(a)(2) (West 2004)). That section provides as follows:\n\u201c(a) The accused commits aggravated criminal sexual assault if he or she commits criminal sexual assault and any of the following aggravating circumstances existed during *** the commission of the offense:\n(2) the accused caused bodily harm *** to the victim ***.\u201d 720 ILCS 5/12 \u2014 14(a)(2) (West 2004).\nThus, to commit aggravated criminal sexual assault, one must commit criminal sexual assault. According to the information, defendant committed criminal sexual assault within the meaning of section 12 \u2014 13(a)(1) of the Code (720 ILCS 5/12 \u2014 13(a)(1) (West 2004)). That section provides as follows:\n\u201c(a) The accused commits criminal sexual assault if he or she:\n(1) commits an act of sexual penetration by the use of force or threat of force[.]\u201d 720 ILCS 5/12 \u2014 13(a)(1) (West 2004).\n\u201cSexual penetration\u201d includes \u201cany intrusion, however slight, of any part of the body of one person *** into the sex organ *** of another person.\u201d 720 ILCS 5/12 \u2014 12(f) (West 2004). Section 12 \u2014 12(d) defines \u201cforce or threat of force\u201d as follows:\n\u201c(d) \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 the following situations:\n(1) when the accused threatens to use force or violence on the victim or on any other person, and the victim under the circumstances reasonably believed that the accused had the ability to execute that threat; or\n(2) when the accused has overcome the victim by use of superior strength or size, physical restraint[,) or physical confinement.\u201d 720 ILCS 5/12 \u2014 12(d) (West 2004).\n\u201cForce,\u201d within the meaning of sections 12 \u2014 12(d) and 12\u2014 13(a)(1) of the Code, does not mean the force inherent to all sexual penetration \u2014 for example, the exertion of the hand in the act of pushing into the vagina \u2014 but physical compulsion, or a threat of physical compulsion, that causes the victim to submit to the sexual penetration against his or her will. People v. Haywood, 118 Ill. 2d 263, 274-75, 515 N.E.2d 45, 50-51 (1987); People v. Kinney, 294 Ill. App. 3d 903, 908, 691 N.E.2d 867, 870-71 (1998).\nIn its case in chief, the State has the burden of proving the element of force beyond a reasonable doubt. Haywood, 118 Ill. 2d at 274, 515 N.E.2d at 50. By proving force, the State necessarily proves non-consent, for \u201cif *** one was forced to perform an act, it follows that [one\u2019s] act was nonconsensual; and if one freely consents to the performance of an act upon oneself, clearly [one] has not been forced.\u201d Haywood, 118 Ill. 2d at 274, 515 N.E.2d at 50; see also People v. Roberts, 182 Ill. App. 3d 313, 317, 537 N.E.2d 1080, 1083 (1989). The defendant may raise the defense of consent to rebut the State\u2019s evidence of force. Haywood, 118 Ill. 2d at 274, 515 N.E.2d at 50; 720 ILCS 5/12 \u2014 17(a) (West 2004); see also Roberts, 182 Ill. App. 3d at 318, 537 N.E.2d at 1084 (characterizing consent as a defense but not as an affirmative defense). Section 12 \u2014 17(a) of the Code provides as follows:\n\u201c(a) It shall be a defense to any offense under [s]ection 12 \u2014 13 through 12 \u2014 16 of this Code [(720 ILCS 5/12 \u2014 13 through 12 \u2014 16 (West 2004))] where force or threat of force is an element of the offense that the victim consented. \u2018Consent\u2019 means a freely given agreement to the act of sexual penetration or sexual conduct in question. Lack of verbal or physical resistance or submission by the victim resulting from the use of force or threat of force by the accused shall not constitute consent. The manner of dress of the victim at the time of the offense shall not constitute consent.\u201d 720 ILCS 5/12 \u2014 17(a) (West 2004).\nIf the defendant raises the defense of consent, \u201cthe State has a burden of proof beyond reasonable doubt on the issue of consent as well as on the issue of force.\u201d Haywood, 118 Ill. 2d at 274, 515 N.E.2d at 50.\nIn its brief, the State concedes that R.H. \u201cimplicitly consented to some sort of penetration by allowing defendant to undress her, to spread her legs apart, and to position herself between [R.H.\u2019s] legs.\u201d We agree with that concession. When defendant sexually penetrated R.H. by inserting her fingers or hand into R.H.\u2019s vagina, she did so with R.H.\u2019s consent \u2014 and, therefore, not by \u201cforce,\u201d as that term is defined in section 12 \u2014 12(d) of the Code (720 ILCS 5/12 \u2014 12(d) (West 2004)). One may infer that in performing the act of penetration, defendant was \u2014 as she admitted in one of her letters \u2014 \u201cto[o] rough when [she] should have been gentle.\u201d Nevertheless, R.H. consented to the penetration itself; therefore, defendant did not accomplish the penetration by overcoming R.H.\u2019s will with force or the threat of force.\nThe State contends this is a case of postpenetration aggravated criminal sexual assault. On July 25, 2003, the General Assembly passed Public Act 93 \u2014 389 (Pub. Act 93 \u2014 389, \u00a75, eff. July 25, 2003 (2003 Ill. Laws 2872, 2872-73)), adding subsection (c) to section 12 \u2014 17 of the Code (720 ILCS 5/12 \u2014 17 (West 2004)). Section 12 \u2014 17 is entitled \u201cDefenses,\u201d and (as we have discussed) subsection (a) provides that consent is a defense to criminal sexual assault and to other sex crimes in which force or the threat of force is an element. 720 ILCS 5/12\u2014 17(a) (West 2004). Subsection (c) limits or clarifies the defense in subsection (a) by making the consent effective only up to the withdrawal of consent: \u201cA person who initially consents to sexual penetration or sexual conduct is not deemed to have consented to any sexual penetration or sexual conduct that occurs after he or she withdraws consent during the course of that sexual penetration or sexual conduct.\u201d 720 ILCS 5/12 \u2014 17(c) (West 2004).\nIn the minds of some commentators, the concept of withdrawal of consent makes the element of force problematic. In re John Z., 29 Cal. 4th 756, 764, 60 P.3d 183, 188, 128 Cal. Rptr. 2d 783, 789-90 (2003) (Brown, J., dissenting); N. Walsh, The Collusion of Consent, Force, and Mens Rea in Withdrawal of Consent Rape Cases: The Failure of In re John Z., 26 Whittier L. Rev. 225, 252 (2004); J. Emlen, A Critical Exercise in Effectuating \u201cNo Means No\u201d Rape Law, 29 Vt. L. Rev. 215, 248 (2004); Note, Acquaintance Rape and Degrees of Consent: \u201cNo\u201d Means \u201cNo,\u201d But What Does \u201cYes\u201d Meant, 117 Harv. L. Rev. 2341, 2363 (2004). If, initially, A sexually penetrates B with B\u2019s consent (and, therefore, without force) but merely remains inside of B after B says, \u201cStop, I don\u2019t want to do this any longer,\u201d where is the force? \u201cTo prove the element of force is implicitly to show nonconsent\u201d (Haywood, 118 Ill. 2d at 274, 515 N.E.2d at 50); but, in a case of post-penetration criminal sexual assault, it is unclear that proving the withdrawal of consent implicitly proves force. One writer has drawn a distinction between \u2018 \u2018 [p] ostpenetration rape [as] a doctrine of unwanted sex\u201d and \u201cprepenetration rape [as] a doctrine of forced sex.\u201d 117 Harv. L. Rev. at 2363. Another writer argues: \u201c[0]nce the victim unequivocally revokes consent, the force required to accomplish continued penetration is sufficient to complete the crime.\u201d A. Davis, Clarifying the Issue of Consent: The Evolution of Post-Penetration Rape Law, 34 Stetson L. Rev. 729, 757 (2005). The question is whether mere persistence in sexual penetration, after the withdrawal of consent, can serve as a \u201cproxy\u201d for force (117 Harv. L. Rev. at 2363), considering that \u201cforce\u201d must be something more than the force inherent to sexual penetration (Haywood, 118 Ill. 2d at 274-75, 515 N.E.2d at 50-51; Kinney, 294 Ill. App. 3d at 908, 691 N.E.2d at 870-71). See State v. Robinson, 496 A.2d 1067, 1070 (Me. 1985) (\u201cWe emphasize that the ongoing intercourse, initiated[,] we here assume[,] with the prosecutrix\u2019s consent, did not become rape merely because she revoked her consent. It became rape if and when the prosecutrix thereafter submitted to [the] defendant\u2019s sexual assault only because \u2018[force or the threat of force made her] unable to physically repel the [defendant] or [too frightened to do so]\u2019 \u201d).\nPerhaps, as a practical matter, this question will seldom arise because if B wishes to have sex no longer, B will surely disengage if he or she is able to do so, and if, by his or her physical posture, A prevents B from disengaging \u2014 for example, by continuing to lie on top of B (John Z., 29 Cal. 4th at 760, 60 P.3d at 185, 128 Cal. Rptr. 2d at 786) \u2014 A thereby forces B to continue with the sexual penetration. In John Z., 29 Cal. 4th at 759, 60 P.3d at 185, 128 Cal. Rptr. 2d at 786, for example, the California decision that inspired section 12 \u2014 17(c) (720 ILCS 5/12 \u2014 17(c) (West 2004)) (T. Bohn, Yes, Then No, Means No.Current Issues, Trends, and Problems in Post-Penetration Rape, 25 N. Ill. U. L. Rev. 151, 164-65 (2004)), the defendant constrained the victim to continue with sexual penetration, when she was on top of him, by grabbing her hips and pulling her back down when she tried to pull away. Then he rolled her over so he was on top of her. John Z., 29 Cal. 4th at 759, 60 P.3d at 185, 128 Cal. Rptr. 2d at 786. \u201c \u2018No,\u2019 \u201d she said, \u201c T need to go home,\u2019 \u201d but he persisted in sexual intercourse for another minute or minute and a half, all the while asking for more time. John Z., 29 Cal. 4th at 760, 60 P.3d at 185, 128 Cal. Rptr. 2d at 786. The victim testified: \u201c \u2018[H]e just stayed inside of me and kept like basically forcing it on me.\u2019 \u201d John Z., 29 Cal. 4th at 760, 60 P.3d at 185, 128 Cal. Rptr. 2d at 786. In affirming the conviction, the Supreme Court of California held: \u201c[T]he offense of forcible rape occurs when, during apparently consensual intercourse, the victim expresses an objection and attempts to stop the act and the defendant forcibly continues despite the objection.\u201d (Emphasis added.) John Z., 29 Cal. 4th at 760, 60 P.3d at 185, 128 Cal. Rptr. 2d at 786. She no doubt felt \u201cforced\u201d in both positions \u2014 not only when the defendant grabbed her hips and pulled her down but also when he was on top of her. One can, in a manner of speaking, passively force someone to continue with the sex act by using one\u2019s own bodily inertia to prevent the partner from disengaging. This would be force beyond that inherent to the sex act itself.\nOne may reasonably infer that R.H. pushed defendant because disengagement was, for her, physically impossible until defendant withdrew. Defendant withdrew when R.H. pushed her a second time. If an aggravated criminal sexual assault happened at all, it happened during the very short duration between the first and second push, when defendant, by not moving, prevented R.H. from immediately disengaging. Even though, subjectively, R.H. no longer consented, her withdrawal of consent was ineffective until she communicated it to defendant in some objective manner (see People v. Carlson, 278 Ill. App. 3d 515, 520, 663 N.E.2d 32, 36 (1996)) so that a reasonable person in defendant\u2019s circumstances would have understood that R.H. no longer consented (see Kinney, 294 Ill. App. 3d at 908, 691 N.E.2d at 871). Defendant used force on R.H. only if the first push operated as an objective withdrawal of consent.\nLooking at the evidence in a light most favorable to the State, we conclude that no rational trier of fact could find, beyond a reasonable doubt, that a reasonable person, in defendant\u2019s circumstances, would have understood that initial push as a withdrawal of consent. See People v. Schott, 145 Ill. 2d 188, 203, 582 N.E.2d 690, 697 (1991). According to a letter from defendant that the State presented at trial, R.H. was capable of talking (\u201cI swear to you that I did not hear you say no\u201d). R.H.\u2019s excuse was that she did not want to wake the children by screaming. Even if one credited that excuse, it would not solve the problem of an uncommunicated withdrawal of consent. R.H. could have said no \u2014 and, evidently, defendant expected her to say no, or at least say something, if she wanted defendant to stop the sexual penetration. This expectation seems reasonable. R.H. did not say no or stop. Instead, she pushed defendant. The problem is, people push one another during sexual congress. We do not mean to suggest that a push can never signify nonconsent or a withdrawal of consent. In fact, the second push here was clearly made with enough force to both be distinguished from a caress and to effectively communicate the withdrawal of consent. \u201c \u2018Force\u2019 and \u2018consent\u2019 simply do not have static meanings. The significance of various factors \u2014 a cry for help, level of resistance, attempt to escape \u2014 depend[s] on the circumstances of each case.\u201d Kinney, 294 Ill. App. 3d at 909-10, 691 N.E.2d at 871 (Knecht, J., specially concurring). Under the circumstances of this case, a single push to the shoulders, without more, cannot serve as an objective communication of RH.\u2019s withdrawal of consent.\nIII. CONCLUSION\nFor the foregoing reasons, we reverse the trial court\u2019s judgment.\nReversed.\nMcCullough, j., concurs.", "type": "majority", "author": "JUSTICE APPLETON" }, { "text": "JUSTICE TURNER,\ndissenting:\nI respectfully dissent.\nWhen a defendant challenges the sufficiency of the evidence, the reviewing court does not retry the defendant. People v. Janik, 127 Ill. 2d 390, 401-02, 537 N.E.2d 756, 761 (1989). The jury possessed the responsibility to choose between competing versions of fact, assess the witnesses\u2019 credibility, draw inferences from the evidence, and decide whether the evidence as a whole ultimately proved defendant to be guilty of the charged offense beyond a reasonable doubt. See Janik, 127 Ill. 2d at 401, 537 N.E.2d at 761; People v. Anderson, 325 Ill. App. 3d 624, 634, 759 N.E.2d 83, 92 (2001). To avoid intruding upon the jury\u2019s prerogative as the finder of fact, we are to use a deferential standard of review. See Janik, 127 Ill. 2d at 401, 537 N.E.2d at 761. Thus, looking at all the evidence in a light most favorable to the prosecution, we address whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Anderson, 325 Ill. App. 3d at 634, 759 N.E.2d at 92.\nA rational trier of fact could have found (1) the first push sufficiently informed defendant of R.H.\u2019s withdrawal of consent and (2) defendant did not immediately disengage. It is a reasonable conclusion defendant wrote all of the letters following the September 27, 2004, incident. In these letters, she confesses wrongdoing, deplores the \u201cscary side\u201d of herself, admits that she \u201cget[s] mean sometimes,\u201d and asks R.H. if she is going to \u201csend [her] to jail.\u201d The jury could have reasonably inferred defendant knew, from the start, at the very moment of penetration, she was being \u201cway to[o] rough\u201d and that when R.H. first pushed her (signifying her withdrawal of consent), defendant already knew she did not consent to this violent manner of penetration. Because someone had once done the same thing to defendant (as she revealed in People\u2019s exhibit No. 2), defendant knew she was inflicting excruciating pain upon R.H. and that the first push meant \u201cStop!\u201d Nevertheless, she continued ramming her hand into R.H.\u2019s vagina until R.H. succeeded in pushing her away. Looking at the evidence in a light most favorable to the prosecution, I conclude a rational trier of fact could have found the elements of aggravated criminal sexual assault beyond a reasonable doubt.", "type": "dissent", "author": "JUSTICE TURNER," } ], "attorneys": [ "Daniel D. Yuhas and Janieen R. Tarrance (argued), both of State Appellate Defender\u2019s Office, of Springfield, for appellant.", "Kevin E Nolan, State\u2019s Attorney, of Tuscola (Norbert J. Goetten, Robert J. Biderman, and Denise M. Ambrose (argued), all 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. KELLY J. DENBO, Defendant-Appellant.\nFourth District\nNo. 4\u201405\u20140516\nArgued January 24, 2007.\nOpinion filed April 19, 2007.\nDaniel D. Yuhas and Janieen R. Tarrance (argued), both of State Appellate Defender\u2019s Office, of Springfield, for appellant.\nKevin E Nolan, State\u2019s Attorney, of Tuscola (Norbert J. Goetten, Robert J. Biderman, and Denise M. Ambrose (argued), all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0994-01", "first_page_order": 1010, "last_page_order": 1026 }