*1 insulation, installing we affirm engaged only activity in the summary judgment. the trial ruling granting court’s Affirmed. CAHILL, JJ.,
HOFFMAN and concur. ILLINOIS, THE Plaintiff-Appellee, PEOPLE OF THE STATE OF v. BRIAN MONTEFOLKA, Defendant-Appellant. (6th Division)
First District No. 1 — 95—2714 Opinion filed March 1997.
THEIS, J., concurring part dissenting part. in and in Conti, Gregory Conti, A. Adamski and Karen both of Adamski & Chicago, appellant. for (Renee Devine, Goldfarb, Attorney, Chicago
Richard A. State’s James McGinnis, Fitzgerald, Attorneys, counsel), E. and Sheila Assistant State’s People. for the opinion
PRESIDING JUSTICE GREIMAN of the delivered the court: (defendant) by jury
Brian Montefolka home was convicted invasion, burglary attempted aggravated residential and criminal sexual assault. years’ imprisonment Defendant was sentenced invasion, years for burglary, years home residential and for attempted aggravated assault, criminal sexual be served concur- (1) rently. raising appeals, post- Defendant issues as to whether: (2) "showup” unfairly have suggestive; crime was State should (3) count; home was been allowed to amend the invasion defendant (4) doubt; guilty beyond a reasonable the trial proven offenses (United refusing court in instruction States erred defendant’s Telfaire (D.C. (5) 1972)); F.2d 552 Cir. and the State’s com- Telfaire, 469 during closing argument For the reasons that improper. ments follow, were part. part
we affirm in and reverse victim, (Bush), years is 49 Suzanne Bush testified she Forest, age ap- On September and lives in Oak Illinois. a.m., proximately sleeping upstairs in her bedroom 4:30 Bush dog’s whining her and by when she awakened went downstairs downstairs, nightshirt in a she observed dressed and underwear. Once her petting dog. Although her interior of home defendant light clearly in the from lighted, Bush was able to see defendant neighboring homes. doing her asked who he was and what he was
Bush defendant he responded He identified as Bill Johnson and house. himself try anything, think and that if did not did not she home she would not hurt her. screaming front ignored this and ran to the admonition door, caught placed her in a
door. Defendant her at the headlock dragged living Defendant threw her to her the neck into room. struggle "inches” from and a ensued. Defendant’s face was floor her own. her
During struggle, told Bush to take off under- defendant fought, struggle, the more she the more wear. Bush continued but again choking her and told hurt her. Defendant continued again and the two take off her underwear. Bush refused struggle. continued to conversation, ask-
Finally, engage Bush was able Defendant ing why how he had broken into home. him family had money for his entered responded that he needed cigarettes Bush could smell alcohol through unlocked window. if he leave if she asked defendant would on defendant’s breath. She gave be- money. "yes” and Bush him gave him some Defendant said not to promised kitchen counter. Bush tween from the $10 $60 door, locking it front police and walked defendant call the *4 - upon his exit. house, where the neighbor’s to a then and crossed
Bush dressed a police as to the Bush described defendant police were summoned. tall, with dark pounds male, feet inches possibly Hispanic, 5 sideburns, hair, wearing a dark "White and and light a mustache T-shirt, jacket, cap Sox” brown baseball on leather backwards and jeans. blue later,
Approximately police minutes drove to a her house Forest, away located a they they few blocks Oak where believed party had located Bush’s assailant. There was a at the and the house police brought eight guests out male and walked each around the squad car, car. Before squad defendant reached the Bush identified longer wearing him jacket and noted that he was no his leather baseball cap. Bush stated that defendant’s "was in her face imbedded mind” and would be there for the rest of her life. process-
Bush returned to her the police, began house with who ing prints the scene for pictures other evidence. Bush identified injuries, including arm, of her der, neck, bruises on and shoul- knees ear, by leg. cross-examination, blood elbow and On manner, testified that defendant did not touch her in a sexual did not take off any of his clothing, display weapon. own and did not a
Shirley Matthay (Matthay), neighbor, that, Bush’s testified September 1993, she was dog awakened at 4 a.m. next Looking window, door. out red, her bedroom she observed a dark two- parked habit, door car front her house. Matthay As was her went flashlight outside with a and took down the plate car’s license Matthay number — UH 2900. police then walked to the station and reported "suspicious” returned, Matthay When vehicle. the car gone.
The Oak Forest police computer ran a check on the license number and that Mustang registered discovered Domingo Montefolka, defendant’s Officers dispatched father. were the Mon- tefolka Village residence located in the of Oak Forest. Quinn
Officers and Badoni arrived at the Montefolka residence and, Quinn vehicle, as exited his Ridge- a car observed turn onto Avenue, stop street, land pull in the middle up and then front of the house. The Mustang vehicle was red Ford with license number plate UH 2900.
Quinn approached driver, defendant, identified later as the him they investigating informed were some criminal activ- ity possibly occurred earlier and that his car De- involved. evening fendant party told officers that he had been at a all had loaned his car to Brian half approximately Wilson one hour. Quinn Hispanic described defendant as a with a light male mustache appeared weighed sideburns and dark hair who short and about pounds. wearing Defendant black Sox” T-shirt "White Quinn written on the jacket front. did observe leather baseball cap.
204 Quinn separately and Badoni and defendant each drove
Officers the he gave party the as location of address which defendant the had attended. Defendant walked to the house ahead officers. door, into Quinn opened that rushed Officer testified defendant said, night are I been here all no cops the house and "The here. have Following I this They got shit did earlier.” matter what. me some outburst, custody. placed and him officers handcuffed defendant defendant,
Quinn was the identification and observed present for along eight guests, procession around party other male walk immediately was car in which Bush seated. Bush identified squad defendant as her assailant. had party and testified that defendant
Daniel Hession hosted minutes, midnight, approximately been at his home for around been because he was "loud and obnoxious.” but had asked leave again hour two and was party returned to the or later Defendant wearing jeans was and a brown leather asked to leave. Defendant jacket. and "Mirandized” placed was under arrest
Defendant Investigator Shaughnessy approximately September 6:30 a.m. on 12, Shaughnessy "did anything” told that he not do 1993. Defendant Shaugh- only get cigarettes at around 2 a.m. party and had left the latent nessy fingerprints comparison defendant’s with the took other forensic fingerprint lifts had taken from the scene. The Bush’s identifying was in terms of defendant as evidence inconclusive attacker. guilty
Following closing arguments, was found home defendant assault, invasion, aggravated and residen- attempted criminal sexual initially robbery. argues burglary, guilty not Defendant tial denying suppress his evidence that the trial court erred motion unfairly identification, unnecessary and showup was of his where suggestive. exigent need was no
Specifically, contends that there defendant highly sugges- showup procedure employed and that the for the "pos- participant no was short because other tive showup sibly The State maintains the immediate Hispanic.” looking suspect for a within were necessary police because invasion, as- burglary attempted sexual minutes of home to determine whether promptly to act police required sault. The were they needed to continue or whether perpetrator was the unnecessarily sug- Also, showup the form of their search. reliability. high degree of gestive and had a denying trial court’s decision whether the We must determine manifestly evidence suppress identification motion (1995). Smith, We App. note People erroneous. Ill. 3d that, preliminarily although the trial court character defendant and "hybrid,” placing ize the de procedure showup identification as group similarly aged closely in a more fendant males resembles decision, however, lineup. purposes For of our this distinction is im material, "hybrid” will analysis. and we review the trial court’s showup proper.
An
of a
can
immediate
near
scene
crime
be
89;
Smith,
Manion,
App.
People
3d at
In the ample facts demonstrate that Bush had opportunity variety angles. to view defendant a from of Defendant facing times,” was "at all including from such distances as nine engaged inches. Bush in extended conversation with defendant and enough cigarettes close to detect beer and on his She breath. ac companied him into the kitchen and him walked to the front door. description
Bush’s the police highly was consistent and ac- curate, the crime and showup place took within of an hour each other, and Bush eight identified defendant out of of group without hesitation, stating forget later that she would never his face. Bush’s inherently identification was reliable and the trial court was correct deny defendant’s to suppress motion identification evidence. argues Defendant next by allowing trial court erred against State to the home amend invasion count An defendant. individual commits the offense of home invasion when authority knowingly dwelling
"without he or she enters the place of another when he or or she knows has reason to know that persons present or knowingly one more is or he she or enters the dwelling place dwelling place of another and remains such until she he or knows or has reason to or know that one more persons present is
such The [ijntentionally [***] original grand dwelling place.” 720 ILCS causes any injury indictment 5/12 — any person alleged that defendant 11(a)(2)(West 1992). or persons within "knowingly S. he entered 16026 guilty home invasion because Illinois, Forest, dwelling place Su Long, County, Oak Cook more B., had reason know that one or zanne when he knew or any person or intentionally harm to persons present are causes 4, 1994, dwelling place.” May year On over one within persons such trial, sought to amend the home the State leave prior to charge alternative manner in which defendant invasion to reflect the court, objection, al trial defense committed the The over offense. knew phrase "when Brian Montefolka lowed the State to strike the adding persons present,” or more are or had reason to know that one Long place the "and remained in 16026 S. until phrase in its present.” persons knew or to know that one more had reason part committed a formal manner in which the offense is is pursuant to section 111—5 that can be amended the indictment Coleman, 49 Ill. 2d People 1992). Criminal Procedure. the Code of (West Further, (1971); defendant cannot 725 ILCS 5/111 —5 year before since the amendment came surprise prejudice, claim trial. home proven guilty argues next that he not
Defendant aggravated invasion, criminal burglary attempted residential inquiry The relevant beyond assault reasonable doubt. whether, light favor viewing the evidence most appeal upon is fact found rational trier of could have prosecution, able beyond a reasonable doubt. elements of the crime the essential Young, 128 Ill. 2d sufficiency of the home invasion challenges Defendant form, alleging that defendant did pre-amendment count in its *7 be the knowing someone to home. Since the Bush residence enter allege remained amended to that defendant properly count was undeni realizing present, after Bush was the home so, summarily rejected. argument is ably did this burglary challenge to the residential is So too defendant’s is the State burglary, residential charge. for To sustain conviction resi the Bush unlawfully entered that defendant required prove to felony theft therein. commit either with the intent dence (1990). case, de present In the App. 3d 686 People Monigan, Ill. com with intent burglary indicted for residential fendant was property from robbery when he takes A commits robbery. person mit imminent force. use or threat of presence by of another person (West 1992). 1(a) 720 ILCS 5/18 — entry undisputed
It into Bush’s home was is defendant’s home, by why unlawful. When asked he was family.” replied money that "he needed for his Defendant assaulted Viewing Bush and left with in cash. this evidence between $10 $60 light prosecution, ain favorable to the the State has met its burden (1992) (intent proof. People Hopkins, App. of See 229 Ill. evidence). by can be proved circumstantial challenge Of more merit is to his conviction at tempted aggravated A person criminal sexual assault. crim commits "commits penetration by inal sexual assault if he an act of sexual 13(a)(1)(West 1992). use of force or threat of force.” ILCS 5/12 — aggravated The offense is where defendant bodily caused harm to the during victim or when it was committed course commis or attempted any felony by sion commission of the accused. 720 ILCS (a)(4) (West 1992). 14(a)(2), An attempted individual commits 5/12 — aggravated when, criminal sexual assault with the intent to commit assault, sexual he does act that step constitutes a substantial to added.) ward the (Emphasis commission sexual assault. 720 ILCS of 4(a) (West 1992). 5/8 — To attempted assault, sustain conviction for proof of specific essential; intent to commit the offense of sexual assault is however, may such intent be inferred from the of circumstances Beason, assault. A 3d 305 defendant can not be convicted attempted aggravated criminal sexual assault absent evidence he had taken a step comple substantial toward Webster, tion the forced act of penetration. People v. 3d 119 reviewing
After principles, specific basic we return to the facts of the case at bar. Bush found defendant on the first floor exchange words, home and only nightshirt after clad in a underwear, open ran escape. the front door and Defendant fol lowed her to the following testimony door. The was elicited on direct examination:
"Q. you What did do? A. I hysterically started run and scream toward the front ***I get open door twisted lock and tried to and he door top then, by fighting was on of me and we were at the front door. Q. you say top you, you When what do mean? *** get my fighting trying A. He was with me he was hand away thing from the And I door. the next knew he had me in a dragged by my headlock and he me into room small the front doorway couch and he had me to side in a headlock *** my my just kept his hand around neck head we *** fighting. *8 Suzanne, your feet? Q. you remain on did my No, ground. had me knees out had me on the He A. he fighting ground and he me I was on the from underneath fighting, told me take off struggling and he to with me and my underwear. dining you your in the room—or in
Q. he had on knees When living you? to was he in relation room where *** right facing my me. He was me. We He of A. —the screaming kept crying and fighting struggling and I kept Please, hurting you’re me. And hysterically, please don’t hurt me. get away, the more he fought I struggled, I the more the more my tighter around neck chok- put he his arms hurt me and more he told me fought And for a while then ing me like that. we again. my to take off underwear again, Q. you your take underwear off And when he told you say? what did kept fighting no, just way. no And we I him there was
A. told enough to able to finally I calmed down be fighting. And then just sob.” cross-examination, following colloquy occurred:
On you you? over
"Q. top kneel on of and straddle Did he ever top on and he he had his knees type like that where A. Some me. around you? kneeling top of your with him on Q. you on back Were flat No,A. sir. eight struggle minutes while this
Q. During seven to this entire clothing? your person any of going this tear on did No,A. sir. clothing Q. rip any of off? your Did he ***
No,A. sir. lay top you? Q. attempt to Did he No,A. sir. parts your caress or fondle
Q. attempt Did touch or he body?
No,A. sir. Ma’am, his clothes off?
Q. did he start to take *** No, sir. A. any way?
Q. expose Did himself he No,A. sir.” relating to at- to the testimony presented all This is State, in its initially observe assault. We tempted sexual claiming that defen- testimony, court, misrepresents this brief this his knees on her with and straddled ground to the "threw her dant demanding continually hers, "while her down” pinning top her underwear.” she take off only overtly aspects were his defendant’s conduct requests
two that Bush remove her underwear. He made no overt act genitals, clothing, toward did not use force remove nor did acknowledges touch, expose himself. Bush that defendant did not any part body. Certainly, caress or fondle of her defendant was in *9 position, go asking literally, simply further than her to remove her However, underwear. the issue is whether defendant’s conduct con- stituted a step aggravated substantial toward the commission of sexual reprehensible, assault. While defendant’s conduct is precedent suggests that he did not. case,
In a factually
People Rayfield,
similar
Similarly, Pitts, in People (1980), App. 89 Ill. 3d 145 the court jury reversed a attempted aggravated conviction on sexual assault her, where an inmate a prison guard, assaulted female straddled her, threatened to kill felt pawed pants her breasts and at her before gyrating upon her orgasm. until he In experienced reversing conviction, defendant’s the Pitts court found defendant did not make step a substantial toward penetration because he made no overt "genital move toward the victim’s area” expose and did not Pitts, himself. App. bar, 3d at Unlike 147. the case at the Pitts defendant made overt sexual complainant movements toward initially attempted to disrobe her. supreme
Our
conviction,
finding
court
reversed
similar
driving
will,
defendant’s
of
acts
victim to a
area against
remote
her,
kissing
announcing his intention to have sexual
intercourse
her, covering her
chasing
through
mouth and
a field did not
Bush,
attempted rape.
amount to
People v.
disrobed age time, his years penis [own] under 17 at the stimulated but orgasm, the said to masturbate him to requested [D.R] erection and defendant; gratification and that purpose for the of the sexual ” years than 175 Ill. 2d at [D.R].’ said defendant was at least 5 older 129. majority
The found: consideration, agree appellate with the court "After careful we exposure, request act when added to the for sexual that this step conduct, was to constitute a substantial notwith sufficient standing actual contact between defendant and the lack 1008-09, Brewer, citing People v. victim. 276 Ill. 3d at the evidence at trial 3d 189 We therefore believe Ill. guilty sufficient for the to conclude that defendant ***.” 134. beyond a reasonable doubt at readily distinguishable from in Jones is conduct issue Here, made no at- present case. defendant’s conduct Thus, "an act of himself or Bush. we do not have tempt to disrobe only have request with "a sexual conduct.” We exposure” coupled request that Bush remove her underwear. cases, conduct, of the above-cited Defendant’s within the context *10 step toward commission of appear qualify to as substantial does cases Rayfield, similar to since both quite sexual Our case is assault. assault, wearing physical victims entry, unlawful involved vagina or for nightshirt, to see the victim’s nightgown requests / underwear, by and followed conversation to remove her victim nonthreatening ways. relatively parting distinguish attempts Rayfield; to The well-intentioned dissent neglects Rayfield to that the however, doing, in author mention so the frightened "hold” the that he be allowed to required her victim, and then carried kill her if she screamed threatened subsequently put her before he down toward the bedroom 298-99. App. 171 Ill. 3d at Rayfield, with her on the couch. conversed calm, nonthreatening the defendant made Rayfield that The notion unique is a threatening to kill her suggestion moments after sexual of the defendant’s conduct. characterization that, Rayfield, in the defendant neglects observe The dissent boyfriend her him that repeatedly advised only after the victim left is more curious App. Ill. at 299. Even expected. Rayfield, 171 3d was did not demand Rayfield defendant that the the dissent’s conclusion inquire the victim how It is reasonable to victim disrobe. that the vagina” without to "see her the defendant expected to allow do not totality Rayfield circumstances disrobing. of the partially the instant case. vary from those of reasonably Moreover, finding culpable seem to be cases defendant’s conduct physical based far more overt and violent sexual and related acts. (1993) Sutton, People (punching, choking See 3d 172 App. v. threatening pulling pants victim while her off and handicapped own); Kleba, attempting People to remove his Ill. 3d (acts (1982) knocking ground, the complainant her, repeatedly threatening holding to kill her in an neck immobiliz ing dragging alley, ordering arm-lock and her her to remove into ankles, jeans her over clasp underwear and then bend whereupon fondling began vagina, constituted a substantial offense). step toward commission of the by cases, appears Limited the thrust these it that defendant’s conduct, light prosecution, even that most not a favors step substantial toward an act of penetration. We find that de- proven guilty fendant was not beyond of the offense a reasonable finding doubt. We observe that our will not affect defendant’s sentence, aggravated since the attempted sexual assault term is 10-year invasion, concurrent with the term for home and we see no reason to resentencing. remand for argue
Defendant continues to
trial
court erred in
declining to submit
Telfaire,
defendant’s
instruction. In
Telfaire
suggested
United States
of Appeals
Court
use
several instruc
prevent
tions to
danger
of mistaken identification as a threat
justice.
However,
Telfaire,
Lastly, following remarks, defendant claims the made prosecution closing argument, improper: were gentlemen
"Ladies jury, apologize, I must because you hearing closing argument, know now after we have been *11 you today myself discovered. You now know as sit there that and Attorney just Assistant State’s Byrne every Tom and about police member of Oak department Forest Suzanne Shirley every Matthay conspired in witness this room convict Brian Montefolka. conspiracy history
You now most know the incredible in the County Cook has been in concocted order to convict this individ- 1993, together 12, got all September we ual. You now know on said, pick in Oak Forest and who should we out and sat around guess picked. we charge with these crimes. And who the air to defendant, in this case. The Brian Montefolka. That’s defense *** conspiracy, this is a that’s That defense is ludicrous. Because defense, embarrassing, humiliating.” that making closing argu are wide latitude in Prosecutors afforded ments, falls allow certain remarks within the and the decision to Brooks, People 246 Ill. 3d of the trial court. sound discretion (1993). any 777, discussing rea In the evidence and addition therefrom, prosecutor may respond to comments inferences sonable response. such a by provoke invite made defense counsel Brooks, 3d 788. arguably remarks, though were inappropriate, prosecutor’s
The argument con- implying earlier invited defense counsel’s Specifically, defense counsel to convict defendant. spiracy existed that fo- testimony fabricated or embellished and suggested that away” simply missing. Defense "explained rensic evidence was so, objects of his also, to the characterization rightfully counsel *** *** embarrassing humiliating.” defense as "ludicrous a crimi only will warrant reversal of closing remarks Improper prejudice result in substantial nal conviction where such remarks Smith, Ill. 2d Substantial People v. the defendant. in factor” constitute "material prejudice occurs where remarks may opposite have result reached the conviction such that McCall, App. made. had remarks not been case, remarks were present prosecutor’s In decision, find error to jury’s and we material factor not a be harmless. above, affirm defendant’s convictions forth we
For the reasons set his convic- burglary and reverse residential for home invasion and assault. criminal sexual attempted aggravated tion for part. part Affirmed in and reversed ZWICK, J., concurs. dissenting in THEIS, part concurring specially
JUSTICE part: that the State majority’s determination must dissent from
I conduct doubt that defendant’s beyond a reasonable prove failed assault. the act of sexual step toward was a substantial we must review standard of accurately states the majority
213
of
challenge
sufficiency
to the
the evidence.
apply
drawn
the evidence are well within the
Because inferences
from
province
jury,
judgment
not
our
for the
of
we must
substitute
regard
credibility. People
jury’s
weight
with
to the
of the evidence or
Jordan,
301,
inap
v.
App.
282 Ill.
3d
The sexual assault criminalizes the act of forc penetration. ible sexual The penetra broadness of the term "sexual highlights tion” the incompatibility the attempted rape of cases 13(a)(1)(West 1992). the instant case. See 720 ILCS While the 5/12 — neglects majority to set forth the penetration,” term "sexual culpable of scope conduct is critical the appropriate of resolution this case. Sexual penetration means: contact,
"[A]ny slight, organ however sex between the of one person organ, and the sex person, mouth or anus of another or intrusion, any any slight, part body person however of of one *** any or object organ into the sex or anus another ***.” added.) 12(f)(West 1992). (Emphasis 720 ILCS 5/12 — statutory "[T]he require definition does not physical penetration but merely requires Moore, 747, 773, People contact.” 3d 537, (1990), denied, 557 567, N.E.2d 555 appeal 133 Ill. 2d 561 N.E.2d (1990), denied, 1031, 701 cert. L. U.S. 112 Ed. 2d 111 S. Ct. (1991).Therefore, Pitts, unlike we need find evidence engage Rather, intended in sexual intercourse. reversal of defendant’s inappropriate conviction is if rational (1) trier of fact could infer that the defendant intended to: contact (2) organ sex mouth; victim’s with organ "any his sex or make "any intrusion” part body” organ. [his] into the sex victim’s 12(0 (West 1992). 720 ILCS 5/12 — statute, major spite
In of the broadness the sexual assault upon province ity trespasses and reverses defendant’s majority heavily upon Rayfield, relies conviction. (1988), reversal, noting N.E.2d 253 both Ill. assault, entry, suggestions, physical cases involved unlawful conversation, departure. defendant’s nonviolent The critical case, however, Rayfield and the instant involves distinction between surrounding suggestion. the circumstances the sexual struggle, to calm as- Rayfield, In after the victim was able engaged in The two sat on the victim’s couch and conversa- sailant. leave, apartment he left the got up tion. The but before *13 refused vagina. victim if he could see her The victim asked the comply to with attempt made no force the victim the assailant significance upon the request. Rayfield his Of is the court’s reliance disrobe, only he did not demand fact that not did the assailant not attempt expose ei- The lack an that the victim disrobe either. sup- suggestion, tends coupled with a nonviolent sexual party, ther was a reasonable doubt as to port the conclusion that there court’s committing step toward whether the assailant took substantial criminal sexual assault. knocked the victim to the
Conversely, the
in this case
defendant
beg-
struggled,
She
her to take off her underwear.
floor and ordered
victim, repeating
The defendant choked the
ging him not to hurt her.
fight him.
again refused and continued to
his demand to disrobe. She
struggle,
the defendant to take
During
persuaded
the
the victim
in
the
Rayfield,
the assailant
defendant
money and leave. Unlike
disrobe,
coupled
contemporaneous
with
a demand
which
made
jury’s conclusion that the defendant
support
These facts
violence.
in
It is irrel-
organ
manner.
the victim’s sex
some
intended
contact
disrobe,
penetra-
as the act of sexual
defendant did not
evant that the
being
contingent upon
exposed.
tion is not
Supreme
solace in the Illinois
majority
I
can find little
believe
Jones,
In
People v.
While agree coupled I cannot this violent attack appeal, sues raised unreasonable, improb- is the demand disrobe evidence "so able, so unsatisfactory” justify jury’s as to reversal of the verdict. GIUDICE, Petitioner, In re MARRIAGE OF MICHELLE DEL and GERARD (Gerard GIUDICE, Jr., Respondent Giudice, al., DEL Third-Party R. Del et Cullerton, Defendants-Appellees; Terry Terry Brown, al., Cullerton et a/k/a Third-Party Defendants; al., Judgment John C. Santee et
Creditors-Appellants). (6th Division) First District No. 1 — 95—3568 Opinion filed March 1997.