
NO. 4-96-0448



IN THE APPELLATE COURT



OF ILLINOIS



FOURTH DISTRICT



THE PEOPLE OF THE STATE OF ILLINOIS,	)	Appeal from

Plaintiff-Appellee,			)	Circuit Court of

v.						)	Champaign County

LONNIE RAY KINNEY,					)	No. 95CF1332

Defendant-Appellant.		)

)	Honorable

)	John R. DeLaMar,

)	Judge Presiding.

_________________________________________________________________







JUSTICE COOK delivered the opinion of the court:



Defendant Lonnie Ray Kinney was charged with three counts of aggravated criminal sexual assault for allegedly committing three acts of forcible sexual intercourse against A.B. in the early hours of August 26, 1995.  720 ILCS 5/12-14(a)(2) (West 1994).  Defendant admitted having sex with A.B. at that time but denied using force.  The central issue at trial was whether A.B. consented to having sex with defendant.

A.B. testified she met defendant at the Edsel bar in Champaign on the night of August 25, 1995, and had a few drinks with him.  From there, A.B. and defendant decided to go for a ride in defendant's car.  They drove to Hessel Park, parked the car, and walked through the park.  The two sat down on a picnic table and talked.  Defen­dant kissed A.B., but she pushed him away and said she had to get back to her friends.  She told defendant she was married and did not cheat on her husband.  Defendant insisted that A.B. not go, and when she turned away he grabbed

the right side of her dress, ripping it.  Defen­dant pushed A.B. back onto the picnic table, pulled down her dress and bra, and began squeezing her breasts.  Defen­dant was kissing A.B. and pulled off her panties and hose.  Defen­dant placed his fingers in A.B.'s vagina and anus, "telling me to shut up because I was trying to push him off of me."  Defen­dant pene­trat­ed her vagina, her anus, and then her vagina again.  During the vaginal penetra­tion, A.B. tried to push defen­dant off her, unsuc­cessful­ly, because defendant is 6 feet 3 inches or 6 feet 4 inches and weighs about 260 pounds.  The anal penetration hurt so much that A.B. was scream­ing for defendant to stop.  A.B. testi­fied her dress was torn, her anus was bleeding badly, and she had pains in her abdominal area, bruises on her breasts, and a scrape on her face from when defendant held her head down on the picnic table.  		A.B. got back into the car with defendant and he drove her back to the Edsel.  She testified that she got back in the car with defendant because her purse was in the car and she was afraid if she tried to run or get away, defendant would pursue her and hurt her again.  Defen­dant dropped A.B. off by the dumpsters at the Edsel at about 12:50 a.m.  She went back inside the Edsel and found her friend, Martha.  Martha testi­fied A.B.'s hair looked a mess, she had been crying, her dress was torn, and she had a red mark on her cheek.  A.B. did not tell Martha or anyone about the rape until the next morning when she told Martha over the tele­phone.  Two days later, A.B. called the "Rape Crisis Hot Line."  She underwent a physi­cal examination that evening, which revealed bruises on her breasts, a swollen and reddened labia, and two small tears on her rectum that were consistent with anal inter­course.

Defendant denied raping A.B.  He claimed they drove to the park and walked to the picnic table.  At the picnic table, A.B. performed oral sex on defendant.  After that, defen­dant contends they had consensual vaginal intercourse.  A.B. then per­formed oral sex on defendant again.  After they were finished, they dressed and got back into defendant's car.  Defendant drove A.B. to her car at the Mobile Super Pantry and dropped her off.  Before she left, defendant got her phone number and kissed her good-bye.

When first questioned by police, defendant denied knowing A.B. or ever having sexual contact with anyone in Hessel Park.  However, defendant later admitted to police that he knew A.B. and said he had consensual sex with her at Hessel Park.  Defen­dant testified that he denied everything at first because he was in shock and nervous from being charged with such serious allega­tions.

Among the instructions given by the court were the following:

(1) The definitional instruction of "crimi­nal sexual as­sault" provided: 

"A person commits the offense of cri-

minal sexual assault when he commits an act 

of sexual penetra­tion upon the victim by the 

use of force or threat of force."

See Illinois Pattern Jury Instructions, Criminal, No. 11.55 (3d ed., 1992) (hereinafter IPI Criminal 3d).  

(2) The instruction on the consent defense provided:

"It is a defense to the charge of aggra-

vated criminal sexual assault that [A.B.]

consented."  

See IPI Criminal 3d No. 11.63.  

(3) The definitional instruction of "con­sent" provided:

"The word 'consent' means a freely given 

agreement to the act of sexual penetration 

in ques­tion.  Lack of verbal or physical re-

sistance or submis­sion by the victim result­ing 

from the use of force or threat of force by 

the defen­dant shall not consti­tute consent."  

See IPI Criminal 3d No. 11.63A (taken from 720 ILCS 5/12-17(a) (West 1994)).

(4) The definitional instruction on "force or threat of force" provided:

"The term 'force or threat of force' 

means the use of force or violence or the 

threat of force or violence includ­ing, but 

not limited to when the accused has overcome 

the victim by use of superior strength or 			

superior size."  

See IPI Criminal 3d No. 11.65 (taken from 720 ILCS 5/12-12(d) (West 1994)).    

(5) The issues instruction on aggra­vat­ed crimi­nal sexual assault--aggrava­tion by circum­stanc­es provided:

"To sustain the charge of aggravated 

criminal sexual assault, the State must prove 

the following proposi­tions:

First
 
Proposition
:  That the defendant 

committed an act of sexual penetration upon 

[A.B.]; and 

Second
 
Proposition
:  That the act was 

committed by the use of force or threat of 

force, and that [A.B.] did not consent to 

the act of sexual penetra­tion; and 

Third
 
Proposition
:  That the defendant 

caused bodily harm to [A.B.]."

See IPI Criminal 3d No. 11.58.

The jury found defendant guilty of aggravated criminal sexual assault for counts II and III and not guilty of aggra­vated criminal sexual assault on count I (vaginal intercourse).  Per-haps the jury decided the activity was consen­su­al up to the point of anal intercourse.  Defen­dant was sen­tenced to consec­u­tive seven-year prison terms.  Defen­dant ap­peals, con­tend­ing the trial court committed plain error by failing to properly respond to the jury's request for a defini­tion of the term "force" as used in the jury instruc­tions.  We affirm.

Initially, the State argues defendant has waived this issue on appeal because he did not object to the trial court's response to the jury's request or submit a written alter­native definition to give the jury.  Gener­al­ly, a defen­dant waives defects in jury in­struc­tions, as well as in­structions to jury ques­tions, when he fails to make a timely objection.  
People v. Kittinger
, 261 Ill. App. 3d 1033, 1038, 633 N.E.2d 1368, 1371 (1994).  		

Clearly, defendant has waived the issue on ap­peal.  Accord­ing to the record, defendant not only failed to object to the trial court's response, but specifically agreed to it.  When a defen­dant acquiesces in the circuit court's answer to the jury's question, the defendant cannot later com­plain that the circuit court abused its discretion.  
People v. Reid
, 136 Ill. 2d 27, 38, 554 N.E.2d 174, 179 (1990).  Also, defendant never submit­ted an alter­na­tive instruc­tion on the defini­tion of "force" and failed to raise the issue in a posttrial motion.  When jurors raise a ques­tion during delib­er­a­tions, counsel should submit, in writing, the specific response counsel wants the court to give the jury.  
Van Winkle v. Owens-Corning Fiberglas Corp.
, 291 Ill. App. 3d 165, 173, 683 N.E.2d 985, 991 (1997).  We will review issues raised for the first time on appeal only if the record reflects plain error.  
People v. Fetter
, 227 Ill. App. 3d 1003, 1007, 591 N.E.2d 474, 476 (1992).  Plain error exists when an error de­prives the defendant of a fair and impar­tial trial or any sub­stantial error occurs in cases where the evidence is closely balanced.  
People v. Schmidt
, 168 Ill. App. 3d 873, 878, 522 N.E.2d 1317, 1320 (1988).  Failure to instruct the jury in a way that allows it to consider a viable defense is deemed plain error.  
People v. Lee
, 229 Ill. App. 3d 254, 258-59, 593 N.E.2d 800, 803 (1992).

Even if we review this issue under the doctrine of plain error, we must affirm.  When a jury is con­fused about a ques­tion of law, the trial court has a duty to provide clarifi­cation, even though the jury was initially proper­ly instructed.  
People v. Childs
, 159 Ill. 2d 217, 229, 636 N.E.2d 534, 539 (1994).  However, a trial judge may decline to answer a jury's question when the instruc­tions are readily understandable, further in­structions would mislead the jurors, jurors raise questions of fact, or an answer or explana­tion by the court would likely direct a verdict.  
Reid
, 136 Ill. 2d at 39, 554 N.E.2d at 179-80.  A trial court's decision to answer or refrain from answer­ing a question from the jury will not be disturbed absent an abuse of discre­tion.  See generally 
Reid
, 136 Ill. 2d at 38-39, 554 N.E.2d at 179 (referencing the abuse of discretion stan­dard).  

IPI Criminal 3d No. 11.65C, the definition of "force or threat of force," is subject to criticism.  First of all, the defini­tion is circu­lar:  "'force or threat of force' means the use of force or violence or the threat of force or violence."  IPI Criminal 3d No. 11.65C.  Second­, the definition is one-sided.  It does not really attempt to define what "force" is; instead, it sets out a particu­lar situa­tion that is required to fall within the definition of "force or threat of force," that situation being "when the accused has over­come the victim by use of superi­or strength or superior size" (see IPI Criminal 3d No. 11.65C).  
Cf
. Illinois Pattern Jury In­struc­tions, Civil (2d ed., 1971) (herein­after Civil IPI), fore­word, at VII (court should fairly state law, rather than use neu­tralized partisan instruc­tions, "sound­ing first like plain­tiff's counsel and then in the next sentence like defense coun­sel").  The Civil IPI also states that instruc­tions should not single out a partic­ular item of evidence for comment.   	

What does it mean that "the accused has overcome the victim by use of superior strength or superior size"?  IPI Criminal 3d No. 11.65C; 720 ILCS 5/12-12(d) (West 1996).  If a man asks a woman to have sex, and she says "yes," or she says noth­ing, in either case because he is bigger than she is and she is afraid of him, is there a criminal sexual assault?  It could be argued that superi­or size by itself is not enough, that the accused must exhibit some threat of violence for a victim to be "over­come."  The defini­tion says, however, that "force" means "the threat of force 
or
 vio­lence."  (Empha­sis added.)  IPI Criminal 3d No. 11.65C.  Of course, if the accused's conduct would convey a threat of harm to a reason­able person, that would constitute the use of force, but if there is no such conduct is mere size enough to justify the victim's failure to make even "verbal *** resis­tance"?  IPI Criminal 3d No. 11.63A; 720 ILCS 5/12-17(a) (West 1994).  

The word "force" is subject to a number of definitions.  One definition, along the lines of the laws of physics, is that force is "strength or energy exerted or brought to bear: cause of motion or change."  Merriam Webster's Collegiate Dictionary 455 (10th ed. 1996) (defini­tion 1a, noun form).  A separate defini­tion is "vio­lence, compul­sion, or con­straint exerted upon or against a person or thing."  Merriam Webster's Collegiate Dictio­nary 455 (10th ed. 1996) (defini­tion 3, noun form).  Every act of sexual intercourse in­volves force in the sense of energy or motion, but it cannot be said that every act of sexual inter­course involves force that will unlawfully "overcome" the other partic­i­pant or "victim."  

The jury's request was a legitimate one and the trial court should have made some attempt to provide assistance.  The trial court could have told the jury that the physical effort inherent in every act of sexual intercourse is not the "force" referred to in the instructions.  The trial court could have told the jury that superi­or size is not enough, that there must have been some conduct on the part of the accused from which a reason­able person would have felt threat­ened.  The trial court could have told the jury that there was consent if a reasonable person in defendant's position would have believed he had the victim's approv­al to engage in sexual intercourse.  

Nevertheless, it is impossible to find that defen­dant was harmed by the failure to give any additional instruc­tion.  Surely the jury did not believe that "force" meant the physical effort inher­ent in every act of sexual intercourse.  It appears the jury was concerned with the defini­tion as to count I, where the State presented little evidence as to the victim's response.  From the evidence presented, the victim appar­ent­ly did not say any­thing during that act, and her resis­tance mainly consisted of attempts to push defendant away, resis­tance which the victim conceded defendant may not even have noticed because of his size.  The jury resolved that count in defendant's favor.  There were no such concerns with the second count.  As to that count, the victim testified that defendant grabbed her by the hair to turn her over, and she was screaming throughout the incident.  After finding that the second act was accomplished by force and without consent, the jury would logi­cally have conclud­ed the third act also was accomplished by force and without consent.  "[A] person of common intel­li­gence and experi­ence can distin­guish, without difficul­ty, between sexual acts accomplished by force *** and, for exam­ple, sexual activity between consenting adults."  
People v. Haywood
, 118 Ill. 2d 263, 274, 515 N.E.2d 45, 50 (1987); 
People v. Bowen
, 241 Ill. App. 3d 608, 617, 609 N.E.2d 346, 355 (1993).

Defen­dant waived the issue on appeal and has not demon­strated plain error or that he was de­prived of a fair trial by the trial court's response. 

Accordingly, we affirm the judgment of the circuit court of Champaign County.

Affirmed.

GREEN, J., concurs.

KNECHT, J., specially concurs.

JUSTICE KNECHT, specially concurring:

I agree with the result, and I believe the majority raises an arguable question about the definitional instruction on force or threat of force.  IPI Criminal 3d No. 11.65.  I special­ly concur to suggest the majority may have chosen the wrong case to raise the question and may mislead trial courts.

We can only speculate why the jury asked for a more detailed definition of "force."  It is possible a further expla­na­tion of force and use of force may have resulted in defendant's convic­tion on an additional count of aggravated criminal sexual as­sault.  Instead of being prejudiced, the defendant may have been advantaged by the trial court's failure to provide addition­al explanation.

The key point here is defendant acquiesced in the trial court's standard reply--resolve the case using the instructions given.  The defendant should have prepared a specific written response he wanted the court to give the jury.  See 
Van Winkle v. Owens-Corning Fiberglas Corp.
, 291 Ill. App. 3d 165, 173-74, 683 N.E.2d 985, 991-92 (1997).  He did not and agreed with the trial court's re­ply.

If we had a specific written response from defendant we could then begin to meaningfully examine whether an appropriate and helpful reply could have been given.  Without such a proposed response, we should not theorize about what the trial judge could have said.  "Force" and "consent" simply do not have static mean­ings.  The significance of various factors--a cry for help, level of resistance, attempt to escape--depend on the circum­stances of each case.  
Bowen
, 241 Ill. App. 3d at 620, 609 N.E.2d at 356.

The statutory provisions defining force and consent, upon which the jury instructions are based, are not unconstitu­tionally vague.  
Haywood
, 118 Ill. 2d at 270, 515 N.E.2d at 48; 
Bow­en
, 241 Ill. App. 3d at 616-17, 609 N.E.2d at 354.  Perhaps the defini­tions could be clearer and more de­tailed.  Even without that greater detail, a person of ordinary intelli­gence should under­stand when consent has been freely given and when lack of resis­tance is actually the result of force.  
Haywood
, 118 Ill. 2d at 274, 515 N.E.2d at 50; 
Bow­en
, 241 Ill. App. 3d at 617, 609 N.E.2d at 355.

The issue is a sensitive one, because a discussion of consent and force is often viewed as impliedly questioning the victim's conduct.  The question of consent as a defense has caused the greatest difficulty in sex crimes because it focuses scrutiny on the victim's behavior, as well as the accused's, and brings into consideration a whole catalogue of assumptions, myths, and folk wisdom about sexual behavior and the differences in how men and women communicate.

When the majority asks rhetorically whether the mere size of the accused absent other conduct is enough to justify a victim's failure to make even verbal resistance, the question suggests victims have made such a claim.  I am not aware of any reported case where the victim contended the accused's size 
alone
 caused the victim to submit without any resistance, verbal or otherwise.  Superior size with 
no
 
other
 attendant circumstances would not be enough.

In this case, defendant used his superior size to pin the victim to a picnic table.  Thus, his large body was used to overpower the victim.  A.B. testified the defendant prevented her from leaving the park when she tried to do so.  A 260-pound man who rips your dress, squeezes your breasts, pushes you back onto a picnic table and tells you to shut up in response to your ef­forts to shove him off, then digitally penetrates your vagina and anus and then penetrates your vagina with his penis, then sodomizes you and then again penetrates you with his penis while you are scream­ing and strug­gling to push him off, would know he is taking what he wants by force and not engaging in what both par­ties desire be­cause of a freely given agreement.

There is a distinction between real consent and mere submis­sion.  We should all know the difference, and if we do not, it is incumbent on us to learn.

  

