People v. Revelo ( 1996 )

                             No. 2--95--1263

_________________________________________________________________

                                 IN THE

                       APPELLATE COURT OF ILLINOIS

                             SECOND DISTRICT

_________________________________________________________________

THE PEOPLE OF THE STATE       )  Appeal from the Circuit

OF ILLINOIS,                  )  Court of Lake County.

                             )

    Plaintiff-Appellee,      )  No. 95--CF--121

                             )

v.                            )

                             )

JORGE REVELO,                 )  Honorable

                             )  John R. Goshgarian,

    Defendant-Appellant.     )  Judge, Presiding.

_________________________________________________________________

    JUSTICE HUTCHINSON delivered the opinion of the court:

    Defendant, Jorge Revelo, appeals from the trial court's orders

denying his various post-trial motions.  Defendant was charged by

indictment with three counts of aggravated criminal sexual assault.

See 720 ILCS 5/12--13(a)(1), 12--14(a)(2) (West 1994).  Following

a jury trial, defendant was found not guilty on counts I and III of

aggravated sexual assault; he was found guilty on count II (placing

his mouth on the complainant's vagina).  The trial court sentenced

defendant to a seven-year term of imprisonment.

    On appeal, defendant contends: (1) he was denied his right to

a public trial because the trial court excluded the members of his

family from the courtroom during the testimony of the complainant,

A.S.; (2) his conviction was supported by insufficient evidence

that he used force against A.S. or that A.S. suffered bodily harm;

(3) the trial court abused its discretion in denying defendant's

motion to suppress a statement he made after the police told him a

test had revealed the presence of his sperm within A.S.'s vagina,

where the police had not yet obtained the test results; and (4) the

trial court erred by preventing defense counsel from introducing

evidence that the interrogating police officer obtained two signed

statements from defendant before informing him of the charges

against him.  We reverse and remand.

    Defendant and A.S. had known one another since their childhood

in Mundelein, Illinois.  Although the two were never romantically

involved, they were friends.  Similarly, A.S.'s and defendant's

families were friendly and often socialized together.  After A.S.'s

family moved to Round Lake, Illinois, she and defendant saw each

other less frequently.  A.S. was 16 years old in December 1994.

    On December 17, 1994, defendant, A.S., her friend Melissa

McGowan, and two of defendant's friends went out for the evening.

A.S. testified that before leaving McGowan took an "over-the-

counter cold remedy" called Nyquil.  The plan for the evening was

to attend what A.S. described as a "quinceanera, a cotillion."  By

the time the five youths arrived, the quinceanera was over.

Eventually the group decided to eat at an all-night restaurant.

According to A.S., they ordered shakes and shared a "basket of

fries and barbecued chicken wings."  After eating, the group left

the restaurant.  It was approximately 12:30 a.m. on December 18,

1994.

    Because of the hour, defendant offered to allow McGowan and

A.S. to spend the night at his parents' home.  A.S. and McGowan

were to sleep in the basement living room on a "pull-out" sleeper

sofa.  A.S. and McGowan accepted the offer.  Defendant's friends

dropped off A.S., McGowan, and defendant.  The three sat in the

living room and started watching a movie.

    Defendant, A.S., and McGowan drank alcoholic beverages.  A.S.

stated defendant asked if she would like something to drink.

However, defendant testified that A.S. volunteered, "Man, I want to

get smashed."  According to defendant, McGowan initially stated she

did not wish to drink.  Defendant and A.S. went upstairs to the

kitchen.  A.S. testified that while in the kitchen defendant asked

her if she had ever cheated on her boyfriend, Chuck.  Defendant

attempted to kiss A.S.  A.S. stated that she pushed defendant away

and he relented.  Defendant testified he and A.S. each drank three

shots of whiskey; A.S. stated she drank two half shots.  Upon

returning downstairs, the two learned McGowan had changed her mind

and now wished to have a drink.  The three returned to the kitchen

and McGowan drank three shots of whiskey.  Defendant testified he

and A.S. had "at least one more shot each"; A.S. stated that

defendant alone had another shot of whiskey.  Once downstairs, A.S.

asked for and received a pair of defendant's shorts to wear.  After

putting on the shorts, A.S. and McGowan went to sleep on the

sleeper sofa.

    At this point, the accounts of defendant and A.S. diverge; we

relate A.S.'s testimony first.  A.S. was lying between defendant

and McGowan.  A.S. stated she awoke to find defendant rubbing her

hands.  A.S. testified she did not give him permission to do so.

A.S. pulled her hand away, turned away from defendant, and "scooted

over by" the sleeping McGowan.  A.S. testified that defendant then

"started to put his hands up my shorts."  He then began rubbing

A.S.'s vagina.  A.S. testified she did not give defendant

permission to do so and "told him to stop."  A.S. tried to push

defendant away.  In response, defendant put his finger inside

A.S.'s vagina.  Again, A.S. testified she had not given him

permission to do so.  A.S. stated defendant's action "hurt."  She

placed her foot on defendant's hand and tried, albeit

unsuccessfully, to push his arm down.  A.S. stated she told

defendant to stop "[t]hree or four times."

    Defendant then stopped, stood up, and kneeled by the sleeper

sofa.  A.S. testified that as defendant stood up she "scooted up by

[McGowan's] head."  A.S. stated she tried to wake McGowan by

calling her by name and "pushing her in the head."  McGowan did not

awaken.

    While attempting to wake McGowan, A.S. felt defendant grab her

by the ankles and pull her towards him.  As defendant pulled, A.S.

fell backwards, striking her head on a pole forming part of the

frame of the sleeper sofa.  A.S. testified that as defendant tried

to pull down her shorts and undergarment she attempted to pull them

up.  Moving A.S.'s hands away, defendant removed her shorts and

undergarment.  A.S. was lying on her back.  Grabbing her ankles

again, defendant pushed A.S.'s legs forward.  Her knees came to

rest on either side of her head.  Defendant pinned A.S. on the

sleeper sofa by placing his shoulders against the back of A.S.'s

knees and holding her legs.  A.S. testified that being placed in

this position hurt.  Although she pushed against defendant's head,

forehead, and shoulders, A.S. could not free herself.  Defendant

inserted his tongue into A.S.'s vagina.  A.S. testified she did not

give him permission to do so.

    After defendant released her, A.S. again attempted to wake

McGowan.  A.S. testified that she "started poking [McGowan] and

moving her."  McGowan raised her head.  A.S. shook McGowan.

McGowan's eyes appeared "glassy and she looked like she wasn't

there."  After a "couple of seconds," McGowan's head fell back onto

the pillow.  A.S. was crying.

    A.S. also testified defendant penetrated her vagina with his

penis.  However, defendant was found not guilty of the count of

aggravated criminal sexual assault premised on this allegation.

Hence, we need not set forth this testimony in detail.  We do note

A.S. testified that when defendant finally stopped he stated, " 'Oh

my God, what am I doing?' "

    Defendant's remembrance differed sharply.  He testified that

as he was lying on the sleeper sofa he accidently touched A.S.'s

leg.  He started rubbing her leg and back.  According to defendant,

he and A.S. held hands for approximately two or three minutes and

"just basically looked at each other."  Defendant reached inside

A.S.'s shorts with his hand.  He testified A.S. did not respond in

any way during this period of time.

    Defendant began rubbing A.S.'s vagina.  He testified that "she

was like moaning.  *** She said, 'No, I can't because of Chuck.' "

In response to A.S.'s statement, defendant ceased rubbing A.S.

    According to defendant, A.S. initiated further contact.  He

testified she placed her left leg on top of his right leg.

Defendant resumed rubbing A.S.'s left leg and, eventually, her

vagina.  He stated A.S. began "moaning" again.  Defendant testified

A.S. repeated that " 'I can't because of Chuck.' "  Defendant

continued.  He removed A.S.'s shorts and underwear and performed

oral sex on A.S.  Defendant stated A.S. moaned throughout but said

nothing.

    Afterwards, according to both A.S. and defendant, A.S.

retreated into a corner of the basement living room and started to

cry.  McGowan awoke.  She went to A.S.'s side.  With McGowan's

assistance, A.S. dressed in the downstairs rest room.  A short time

later, defendant drove McGowan and A.S. to Chuck's home.  A.S.

testified that both before and during the drive to her boyfriend's

home defendant repeatedly apologized to her; defendant remembered

making a single apology.

    Defendant's brother, Rafael Revelo, testified that he returned

home at approximately 4 a.m. on December 18, 1994.  Rafael Revelo

stated he observed defendant, McGowan, and A.S. lying on the

sleeper sofa.  Rafael believed the three were asleep.

    Several witnesses testified to events occurring in A.S.'s home

on the evening of December 18, 1994.  On that evening defendant--

accompanied by two of his brothers, Gerardo Revelo and Carlos

Revelo, along with their father, Alfredo Revelo--visited A.S.'s

home.  A.S. testified defendant stated "he just touched me."  A.S.

then accused defendant of being a liar.  She testified they both

started to cry and A.S. left the room.  Alfredo Revelo testified

that defendant stated he did not touch A.S.  On cross-examination,

the father testified he asked defendant if he had penetrated A.S.

and that defendant had replied, "no."  Gerardo Revelo testified

that during the meeting at A.S.'s home "[i]t was dead silence."  He

testified defendant "didn't say anything.  He just sat there."

    A.S. was examined by Carol Newman, M.D., on the morning of

December 19, 1994.  Doctor Newman testified that she discovered the

back of A.S.'s head was tender to the touch.  The tender area

corresponded to the portion of A.S.'s head that struck the frame of

the sleeper sofa.  A form prepared by the doctor indicated A.S.'s

vagina had been penetrated with a penis; it also stated there had

been no digital or "oral copulation of genitals."

    Tamara Burr, a registered nurse, assisted during Doctor

Newman's examination.  Nurse Burr testified that the back of A.S.'s

head was red.  The nurse also testified that she did not ask A.S.

any questions about oral sex.  However, on cross-examination, Nurse

Burr stated she did ask A.S. whether there had been "any oral or

rectal penetration."  A.S. answered, " 'no.' "  On redirect, the

nurse revealed that A.S.'s mother had been present when A.S. denied

the occurrence of oral penetration.  A.S. retracted her denial

after her mother left the examining room.

      A.S. described herself as being 5 feet 1 inch tall and

weighing between 98 and 103 pounds.  She also stated defendant is

taller and heavier than she.

    On January 13, 1995, Detective Richard Chiarello of the Round

Lake Beach police department questioned defendant in an interview

room at the police department.  Chiarello testified he had a

warrant issued for defendant's arrest.  Chiarello visited

defendant's home and asked defendant to come to the police station

and answer some questions.  Defendant agreed.  Chiarello opined

that defendant "was very calm and cooperative."  The detective

testified defendant was not served with the arrest warrant until

after he made the written statements.

    Defendant and Chiarello remembered the commencement of the

interview differently.  The detective testified he began the

interview by reading defendant the Miranda warnings (see Miranda v.

Arizona, 384 U.S. 436, 467-74, 16 L. Ed. 2d 694, 719-23, 86 S. Ct.

1602, 1624-28 (1966)) from a "preprinted form."  After reading

defendant the warnings, Chiarello asked defendant, " '[h]aving

these rights in mind, do you wish to speak with me?' "  According

to Chiarello, defendant responded that he would.  Conversely,

defendant testified Chiarello's first action upon entering the

interview room was to ask, " 'You know why you're here, don't

you?' "  " 'Yes, I think so,' " defendant replied.  Following some

conversation establishing that defendant knew A.S., defendant was

handed a document entitled "Miranda Warnings."  (Emphasis added.)

Defendant testified he did not recall at what point in time he

first saw the document.  According to defendant, Chiarello read

this document out loud.  Again, according to defendant, Chiarello

instructed defendant to sign the document.  Defendant signed the

document.

    Chiarello testified to the circumstances surrounding the

interview.  He stated defendant never said he did not wish to speak

to the detective.  Defendant never asked to speak to an attorney.

Chiarello stated he made no promises to defendant.  The detective

testified he neither forced nor coerced defendant in any way.

Chiarello stated he never raised his voice to defendant.  According

to the detective, defendant was calm, cooperative, and comfortable

during the interview.  However, Chiarello stated defendant began to

cry after giving his first written statement.

    Defendant also related the circumstances of the interview.  He

stated he was nervous, scared, and his legs were shaking.

Defendant testified he "had no idea what to do."  He stated he was

in the interview room 15 minutes before saying anything concerning

the events of December 18, 1994.  After defendant spoke with

Chiarello for approximately 30 to 45 minutes, the detective asked

defendant to make a written statement.  He agreed.  As defendant

composed the first statement, Chiarello left to get defendant

lunch.

    Chiarello attempted to obtain a second written statement.

Defendant completed his first written statement.  Chiarello left

the interview room to read the statement.  In the statement,

defendant admitted only to putting his finger in A.S.'s vagina.

Chiarello returned.  In alluding to the results of a sexual assault

kit that had been performed on A.S., the detective stated, " 'Why

would it be that your semen would be found in [A.S.'s] vagina if

you only put your finger in her vagina?' "  Defendant largely

corroborated Chiarello's testimony on this point.  Defendant

testified the detective told him "a rape kit was done on [A.S.] ***

and he said, 'Why would it say--that your semen was in the vaginal

swab of [A.S.]?' "  Both defendant and Chiarello agree that the

detective asked defendant to give a second written statement in

light of the inconsistencies between the "results" of the sexual

assault kit and the first statement.

    Chiarello admitted that, when he commented on the possible

presence of defendant's semen in A.S.'s vagina, the detective did

not know the results of the sexual assault kit.  A hospital

laboratory report revealed that A.S.'s genital culture contained no

trichomonads (i.e., flagellated protozoans) and, a fortiori, no

sperm.

    Defendant gave a second written statement.  In this statement

he admitted "touch[ing] [A.S's] vagina with my mouth."  Defendant

also stated A.S. repeatedly said "no" and asked him to stop.

Defendant did not believe he penetrated A.S.'s vagina; he did admit

to placing his penis on top of her vagina.

    Before trial, defendant filed a document setting forth his

potential witnesses.  The document listed, inter alia, defendant's

father and his brothers Rolando, "Jerry" (whose given name is

Gerardo), and Carlos.

    Prior to A.S.'s trial testimony, the State moved to exclude

all persons other than defendant, his counsel, and a victim

counselor.  Defense counsel immediately objected.  He argued that

defendant's mother, father, and brothers had a direct interest in

the cause.  Therefore, defense counsel asserted, they could not be

excluded.  See 725 ILCS Ann. 5/115--11 (Smith-Hurd Supp. 1996)

(stating that parties who, in the trial court's opinion, have a

direct interest may not be excluded when a minor victim of a sexual

crime testifies).  The trial court granted the State's motion.  The

media were permitted to remain.  However, the court failed to find

expressly whether defendant's mother, father, and brothers

possessed a direct interest in the cause.

    Defendant's first contention is that he was denied his right

to a public trial because the trial court excluded the members of

his family from the courtroom during the testimony of A.S.  The

Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/100--1 et

seq. (West 1994)) addresses a trial court's authority to close a

criminal trial during a minor complainant's testimony.  Section

115--11 of the Code provides that "where the alleged victim of the

offense is a minor under 18 years of age, the court may exclude

from the proceedings while the victim is testifying, all persons,

who, in the opinion of the court, do not have a direct interest in

the case, except the media."  (Emphasis added.)  725 ILCS Ann.

5/115--11 (Smith-Hurd Supp. 1996).  The threshold question raised

by the present case is whether a section 115--11 closure must

comport with both the section itself as well as the United States

Supreme Court's limitations on the closing of judicial proceedings.

See, e.g., Waller v. Georgia, 467 U.S. 39, 81 L. Ed. 2d 31, 104 S.

Ct. 2210 (1984).

    The Illinois Supreme Court recently held that a trial judge

acting pursuant to section 115--11 need only satisfy the

requirements of the section.  People v. Falaster, 173 Ill. 2d 220,

228 (1996).  The court interpreted the phrase "except the media" as

requiring a court acting pursuant to the section to permit the

media to attend the victim's testimony.  Because the media was

"allowed full and uninhibited access to the proceedings[,] *** none

of the evils of closed trials [were] implicated in the present

case."  Falaster, 173 Ill. 2d at 228.  We note that the trial court

in Falaster "did not impose any restrictions on the media."

(Emphasis added.)  Falaster, 173 Ill. 2d at 228.  Therefore, if a

trial court excludes the media--or, indeed, if any nontraditional

restrictions are placed on the media's ability to report on a

criminal proceeding--section 115--11 is insufficient to sanction

the trial court's ruling; in such a situation, courts must comply

with the limitations enunciated by the United States Supreme Court.

    We turn then to the requirements of section 115--11.  First,

notwithstanding the trial court's opinion, the media and its

representatives must be permitted to attend, document, and report

the proceeding.  Second, section 115--11 permits a trial court to

exclude all persons determined by the court to lack a direct

interest in the outcome of the proceeding.  Thus, "those persons

who do have a direct interest in the case, such as a defendant's

immediate family, may not be excluded."  (Emphasis in original.)

People v. Benson, 251 Ill. App. 3d 144, 149 (1993).  In Benson, the

court stated a trial court acting pursuant to section 115--11 may

"properly exclude*** only those spectators whose connection to the

case on trial is tenuous or whose presence simply reflects their

curiosity about the *** proceedings."  Benson, 251 Ill. App. 3d at

149.  We adopt this definition.  To Benson we add the following: a

spectator whose curiosity is based on the nature of the proceedings

themselves likely has no direct interest; however, a direct

interest is more likely to exist if a spectator's interest is

predicated on a relationship with the defendant predating the

commencement of the proceedings.

    In the present case, the trial court failed to follow the

requirements of section 115--11.  As in Falaster, the media were

permitted to attend fully.  Therefore, no danger of a closed trial

existed.  However, the trial court failed to make an express

finding concerning the interest of defendant's parents and

siblings.  Under the facts established by this record, it would be

Orwellian to describe as tenuous the connection between these

parents or these siblings and the criminal trial of the defendant.

We will not do so.  Additionally, defendant's parents and siblings

were not "simply curious" because of the nature of the criminal

trial; they were present out of an interest--and likely a concern--

for defendant that long predated the beginning of this cause.  To

the extent the trial court's ruling excluding defendant's parents

and siblings can be interpreted as an implicit finding that they

did not have a direct interest in defendant's trial, we hold this

to be an abuse of discretion.  See People v. Garrett, 264 Ill. App.

3d 1089, 1094 (1994).

    Notwithstanding any error in the application of section 115--

11, the trial court had the inherent authority to exclude

defendant's father, Alfredo Revelo, and his brothers, Gerardo,

Rafael, and Carlos Revelo.  It is well settled that a trial court,

acting within its discretion, may grant a motion to exclude

witnesses from the courtroom.  People v. Taylor, 244 Ill. App. 3d

460, 467 (1993), citing People v. Scott, 38 Ill. 2d 302, 306

(1967); see also In re C.P., 141 Ill. App. 3d 1018, 1022 (1986).

A trial court does not impinge upon a defendant's right to a public

trial when exercising this long-recognized power.  People v.

Jenkins, 10 Ill. App. 3d 588, 590 (1973).

    We hold that the trial court could have properly excluded

Alfredo, Gerardo, Rafael, and Carlos Revelo for the purpose of

preserving the integrity of the judicial process.  Alfredo,

Gerardo, and Carlos Revelo, along with A.S., all witnessed and

potentially could have testified to the events that occurred in

A.S.'s home on the evening of December 18, 1994; additionally,

Rafael Revelo testified that he observed defendant asleep on the

sleeper sofa with McGowan and A.S.  Consequently, it was

appropriate for the trial court to exclude these four members of

defendant's immediate family who were present during events at

issue in the proceeding.  See People v. Byer, 75 Ill. App. 3d 658,

668-69 (1979) (stating purpose of exclusion "is to allow the trier

of fact to compare individual and independent accounts of the facts

of the case"); People v. Boles, 52 Ill. App. 3d 707, 709 (1977)

(stating purpose of rule is to prevent witnesses from tailoring

their testimony to previously introduced evidence); see also 75 Am.

Jur. 2d Trials §241 (1991).  Although the trial court did not rely

on its inherent authority to exclude witnesses, this is an

appropriate ground on which to affirm the portion of the court's

order excluding Alfredo, Gerardo, Rafael, and Carlos Revelo.  See

Messenger v. Edgar, 157 Ill. 2d 162, 177 (1993); Pavey Envelope &

Tag Corp. v. Diamond Envelope Corp., 271 Ill. App. 3d 808, 816

(1995) (stating that trial court's ruling may be affirmed on any

basis supported by record beyond grounds asserted by trial court,

even if asserted grounds were erroneous).

    Our opinion should not be read as an avenue to exclude

directly interested immediate family members in all section 115--11

situations.  On the contrary, our decision applies only to

situations in which members of a defendant's immediate family and

the complainant both observe or take part in the same events

bearing on the disposition of the cause.  Absent this fact, the

trial court could not have excluded  Alfredo, Gerardo, Rafael, or

Carlos Revelo pursuant to section 115--11.

    Indeed, the boundaries of our section 115--11 holding were

reached and violated in the present case.  Neither defendant's

mother nor his other siblings, Lucy Maria Revelo or Rolando Revelo,

took part in or testified to events bearing on the disposition of

this cause.  Therefore, the court's inherent authority to exclude

witnesses did not justify the exclusion of defendant's remaining

immediate family.  Under section 115--11, but not the United States

or Illinois Constitutions (see Falaster, 173 Ill. 2d at 227

(accepting proposition that media serves as a proxy for the public,

and, therefore, constitutional right to a public trial is preserved

if media are allowed to attend)), defendant's remaining immediate

family members have the right to attend A.S.'s testimony (see

Garrett, 264 Ill. App. 3d at 1093-94; Benson, 251 Ill. App. 3d at

149).  We find that this is the clear and unequivocal intent of

section 115--11.  Having already held it would be an abuse of

discretion to find that defendant's parents and siblings lacked a

direct interest in the proceedings against defendant, we turn to

the question of prejudice.

    We hold that a defendant need not prove specific prejudice

when a trial court excludes persons with a direct interest in the

proceeding.  As a practical matter, it is hard to envision what

would constitute prejudice in the wake of a section 115--11

violation.  It would be difficult, if not impossible, to require a

defendant to prove, or the State to disprove, prejudice.  However,

if section 115--11 is to confer anything beyond a meaningless right

without a remedy, defendants must conclusively be presumed to be

prejudiced by a section 115--11 violation.  We so hold.  This

holding is bolstered by the practice of presuming prejudice when

the constitutional guarantee of a public trial is violated.  E.g.,

People v. Willis, 274 Ill. App. 3d 551, 554 (1995); Taylor, 244

Ill. App. 3d at 468.  We see no reason why a different practice

should apply under section 115--11.

    Our opinion does not confer on defendant's mother, Lucy Maria,

or Rolando an absolute right to be present during A.S.'s testimony.

On remand, the members of defendant's immediate family who did not

take part in or testify to events bearing on the disposition of

this cause may only be excluded during A.S.'s testimony if the

trial court expressly finds there is a significant likelihood that

such family members would relate the substance or tone of A.S.'s

testimony to those members of the Revelo family who could be called

as witnesses.  The trial court must support such a finding with

definite and articulable reasons why defendant's mother, Lucy

Maria, or Rolando are more likely than any other immediate family

member to act as a conduit between A.S.'s testimony and the other

members of the Revelo family. Cf. C.P., 141 Ill. App. 3d at 1022

(because it is within the discretion of a trial court to instruct

witnesses not to communicate their completed testimony to other

witnesses waiting to be called, it necessarily follows that similar

restrictions or even exclusion of third parties are appropriate

where the trial court reasonably believes that they will improperly

communicate testimony to witnesses waiting to be called).  Simply

because defendant's mother, Lucy Maria, and Rolando are closely

related to defendant is insufficient.  The existence of this type

of relationship is the raison d'être for the right conferred by

section 115--11.  Therefore, it would be absurd for the nature of

the relationship to be the basis for denying the right.  We turn to

defendant's remaining contentions because they may recur in the

event of a retrial.

[The following material is nonpublishable under Supreme Court Rule

23.]

    Defendant's second contention is that his conviction was not

supported by sufficient evidence that he used force against A.S. or

that A.S. suffered bodily harm.  In assessing whether the evidence

against a defendant is sufficient to prove guilt beyond a

reasonable doubt, a reviewing court must determine " '[w]hether,

after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.' "

People v. Collins, 278 Ill. App. 3d 515, 519 (1996), quoting

Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99

S. Ct. 2781, 2789 (1979).  Insufficient evidence does not justify

setting aside a conviction unless the proof is so improbable or

unsatisfactory that a reasonable doubt about the defendant's guilt

exist.  People v. Carini, 254 Ill. App. 3d 1, 9 (1993), citing

People v. Furby, 138 Ill. 2d 434, 455 (1990).

    We find the record contains sufficient evidence that defendant

used force against A.S.  The credibility of a witness and the

weight given to her testimony are determinations entrusted

exclusively to the discretion of the fact finder.  See, e.g.,

People v. Rivera, 166 Ill. 2d 279, 291 (1995).  Such determinations

may not be set aside unless no rational finder of fact could have

found beyond a reasonable doubt the essential elements of the

offense.  People v. Peeples, 155 Ill. 2d 422, 487 (1993).  A.S.'s

testimony is replete with references to her attempts to stop

defendant's advances.  She broke contact and moved away from

defendant when she awoke to find he was holding her hand.  A.S.

attempted to remove defendant's finger from her vagina by using her

leg as a lever.  She also tried to push against defendant after he

pinned her to the sleeper sofa.  A.S. testified defendant grabbed

her by the ankles and pulled her down the sleeper sofa.

Additionally, A.S. testified she repeatedly told defendant to stop.

In light of this testimony and the preceding standard of review, we

must reject defendant's assertion that A.S.'s testimony was

"completely unbelievable."  Based upon A.S.'s testimony, a rational

fact finder could have found beyond a reasonable doubt that

defendant used force against A.S.  See People v. Eastland, 257 Ill.

App. 3d 394, 402 (1993), citing People v. Shott, 145 Ill. 2d 188,

202-03 (1991) (standing for proposition that a sex crime conviction

may be sustained without corroboration of victim's testimony); see

also 720 ILCS 5/12--12(d)(2) (West 1994) (stating that "force"

refers to accused overcoming victim by using superior "strength or

size, physical restraint or physical confinement").

    We also find the record contains sufficient evidence that A.S.

suffered bodily harm.  Both A.S. and defendant testified that A.S.

struck her head when defendant grabbed her ankles and pulled her

down.  A.S. complained to Doctor Newman of a soreness located in

the area of her head that struck the frame of the sleeper sofa.

The doctor noted this area was tender to the touch.  Additionally,

Nurse Burr testified this area of A.S.'s head was red.  We reject

defendant's contention that the bruising and tenderness of the back

of A.S.'s head "is not the type of harm contemplated by the

legislature" in determining whether a complainant suffered bodily

harm.  In the context of aggravated sexual assault, the term

"bodily harm" is defined in the same manner as under the battery

statute.  People v. Jones, 273 Ill. App. 3d 377, 384 (1995), citing

People v. Haywood, 118 Ill. 2d 263, 277 (1987).  The Illinois

Supreme Court has defined bodily harm as " 'some sort of physical

pain or damage to the body, like lacerations, bruises or abrasions,

whether temporary or permanent.' "  Jones, 273 Ill. App. 3d at 384,

quoting People v. Mays, 91 Ill. 2d 251, 256 (1982).  Utilizing this

definition, a rational fact finder could have determined beyond a

reasonable doubt that A.S. suffered bodily harm by virtue of either

the pain in the back of her head or the associated redness.

    Defendant's third contention is that the trial court abused

its discretion in denying defendant's motion to suppress a

statement he made after the police deceptively inferred that a test

had revealed the presence of his sperm within A.S.'s vagina, where

the police had not yet obtained the test results.  Essentially,

defendant argues that Chiarello's conduct rendered his second

statement involuntary.  We disagree.

    If a confession is obtained involuntarily, it is inadmissible.

E.g., People v. Melock, 149 Ill. 2d 423, 447 (1992).  A statement

constituting a confession is voluntary if it is " 'made freely,

voluntarily and without compulsion or inducement of any sort, or

whether the defendant's will was overcome at the time he

confessed.' "  Melock, 149 Ill. 2d at 447, quoting People v. Clark,

114 Ill. 2d 450, 457 (1986).  We examine the totality of the

circumstances when making a voluntariness determination.  Melock,

149 Ill. 2d at 447.  A trial court's finding of voluntariness will

not be disturbed unless against the manifest weight of the

evidence, and a trial court's ruling on a motion to suppress will

not be overturned unless manifestly erroneous.  People v. Miller,

173 Ill. 2d 167, 181 (1996).

    Both defendant and Chiarello concur that Miranda warnings were

given.  Although defendant asserts he was instructed to sign the

Miranda waiver by Chiarello, the detective's testimony contradicts

this assertion.  The trial court was entitled to credit Chiarello's

version.  It is uncontroverted defendant signed the waiver;

additionally, Chiarello testified defendant verbally acknowledged

his understanding of the Miranda warnings.  Defendant and Chiarello

depicted defendant's mental state differently.  Defendant testified

he was shaking, nervous, and scared; conversely, Chiarello

described defendant as calm, cooperative, and comfortable during

the interview.  Again, it was permissible for the trial court to

believe Chiarello rather than defendant.  The detective admitted

defendant started to cry after giving the first statement.

However, neither witness asserted defendant requested the presence

of an attorney.  Therefore, we hold that the trial court's finding

of voluntariness was supported by the manifest weight of the

evidence.

    Chiarello's use of the phantom results from the sexual assault

kit does not alter our holding.  Police deception is but one factor

to be considered when reviewing a ruling on a motion to suppress

based on voluntariness.  People v. Martin, 102 Ill. 2d 412, 426-27

(1984); People v. MacFarland, 228 Ill. App. 3d 107, 117 (1992); see

also 1 W. LaFave & J. Israel, Criminal Procedure §6.2, at 446-67

(1984) (stating as a general matter, courts do not find that,

without additional circumstances calling into question the

voluntariness of confessions, acts of police trickery render

confessions involuntary).  In light of defendant and Chiarello's

conflicting testimony; the relatively brief length of the

interrogation; the lack of any allegation that Chiarello directed

force, coercion, or hostility towards defendant, we hold that the

trial court's denial of defendant's motion to suppress was not

manifestly erroneous.

    Defendant's fourth contention is that the trial court abused

its discretion by preventing defense counsel from introducing

evidence that Chiarello obtained the statements before informing

defendant of the charges against him.  We disagree.  It is true

that after a trial court determines a confession is voluntary and

admissible, a defendant still has the right to present the jury

with evidence affecting the credibility and weight to be given the

confession.  People v. Gilliam, 172 Ill. 2d 484, 512-13 (1996).

However, this right does not alter the precept that a ruling on the

admission of evidence is entrusted to the trial court's discretion

and shall not be disturbed absent an abuse of that discretion.

Gilliam, 172 Ill. 2d at 513.  We may not have ruled as did the

trial court on this issue; however, mere disagreement is an

improper basis for reversing a trial court on a question of

evidence admissibility.

[The preceding material is nonpublishable under Supreme Court Rule

23.]

    For the foregoing reasons, the judgment of the circuit court

of Lake County is reversed, and the cause is remanded.

    Reversed and remanded.

    McLAREN, P.J., and DOYLE, J., concur.