People v. Bever

2019 IL App (3d) 170681

124 N.E.3d 1163

429 Ill.Dec. 653

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Johnathon R. BEVER, Defendant-Appellant.

Appeal No. 3-17-0681

Appellate Court of Illinois, Third District.

Opinion filed March 18, 2019

PRESIDING JUSTICE SCHMIDT delivered the judgment of the court, with opinion.

¶ 1 Defendant, Johnathon R. Bever, argues that plain error occurred when the judge considered matters outside the record—namely, his son's Army experiences—in determining defendant's guilt. We affirm.

¶ 2 I. BACKGROUND

¶ 3 The State charged defendant with criminal sexual assault ( 720 ILCS 5/12-13(a)(2) (West 2008) ) in that he placed his penis in the vagina of K.R. while knowing that K.R. was unable to give knowing consent.

¶ 4 The matter proceeded to a bench trial in Rock Island County circuit court. K.R. testified that she attended a party at Adam Struve's house on the evening of July 12, 2008, and the early morning hours of July 13, 2008. K.R. drank alcohol at the party and became intoxicated. There were parts of the party that K.R. did not remember, and she assumed that she passed out or blacked out during those times. K.R. did not recall talking with defendant, dancing with anyone, or flirting with anyone.

¶ 5 K.R. remembered waking up in the basement on a mattress in a dark room. She did not know how she got there. She was not wearing clothing, but she did not remember taking her clothes off. K.R. saw two bright lights "like from a cell phone or something like that." K.R. heard the voices of two or three people in the room. She did not know who they were. A man was on top of K.R. having sexual intercourse with her. She heard someone else say to remove her tampon, and then someone removed it. The man on top of her continued having sexual intercourse with her. Someone tried to place his penis into her mouth, and she pushed it away. K.R. did not recall saying no. She said that she was "out of it" and did not know what to do.

¶ 6 Eventually, K.R. heard her friend, Veronica Morse, yelling her name. K.R. yelled back. Veronica came downstairs and turned the light on. The men ran out of the room. K.R. sat on the mattress and cried. Angie Kight, another friend of K.R., found K.R.'s clothes, and K.R. got dressed. K.R. told her friends she had sexual intercourse and did not know how it happened. K.R. left the party and spent the night at Morse's house. The next day, K.R. went to the hospital, where a nurse examined her. K.R. also spoke with a police officer at the hospital.

¶ 7 Morse testified that she was at Struve's party with K.R. Morse saw K.R. flirt with defendant and sit on his lap. K.R. seemed intoxicated but coherent at that time. After they had been at the party for approximately 90 minutes, Morse could not find K.R. Other people at the party told Morse that K.R. was in the basement. Morse went downstairs. As she was walking down the stairs, Anthony Nache and Nate Warden ran up the stairs. Morse found K.R. crying in a room in the basement. K.R. was partially undressed. K.R. said that two people had video recorded her having sexual intercourse with another man. One of the men removed her tampon. Morse did not remember K.R. saying that she had sexual intercourse against her will, but K.R. was "freaking out," and "she seemed like she was in that state where they did it against her will." Morse helped K.R. put her clothes on. Morse then went upstairs and told Struve what K.R. had told her. Morse and K.R. left the party.

¶ 8 Kight testified that she was at the party with Morse and K.R. Kight believed that K.R. drank "more [alcohol] than she could handle" at the party. Kight saw K.R. talking to defendant and dancing with Nache. At one point, Morse told Kight that K.R. was downstairs claiming someone had raped her. Kight went downstairs. Kight asked K.R. if someone forced her to have sexual intercourse, and K.R. said no. K.R. said that she had sexual intercourse with someone, heard voices, and then saw a light. K.R. thought the light might have been from a cell phone and that someone might have recorded her. K.R. did not know for sure what happened. K.R. was crying, and she seemed confused. Kight went upstairs and talked to Warden, Nache, and defendant. Kight checked the cameras on their cell phones to see if they had any photographs of K.R., but they did not. Defendant told Kight that he had sexual intercourse with K.R. but he did not force her. Defendant said that K.R. said she wanted to have sexual intercourse with him.

¶ 9 Justin Kapinus testified that he was a federal agent with the United States Army Criminal Investigation command. Kapinus received a request for assistance from the Moline Police Department to interview defendant, who was a private in the Army at the time, regarding a sexual assault. Kapinus met with defendant at an interview room on the installation where defendant was undergoing basic training, which was located in Fort Sill, Oklahoma. Someone from defendant's unit transported defendant to Kapinus's office building. Defendant would not have been given a choice as to whether he went to Kapinus's building. During the interview, Kapinus spent approximately one hour building a rapport with defendant. Kapinus then presented defendant with a form discussing defendant's Miranda rights (see Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ). Kapinus discussed the form with defendant. Defendant said he understood the form and signed it at 4:28 p.m. Defendant wrote his initials next to the date and time on the form. The court admitted the form into evidence.

¶ 10 Kapinus said that when he would interview people, they would not "memorialize the interview on a sworn statement" until they had "come to an agreement that there's nothing else to discuss." At that point, Kapinus would ask the individual to write in his or her own words what he or she had discussed with Kapinus. Kapinus would then "proceed with questions and answers that clarify what has maybe been left out or may be up for question." Kapinus followed that procedure in this case. That is, Kapinus spoke with defendant for a period of time, and defendant then wrote a statement.

¶ 11 The court admitted defendant's statement into evidence. Kapinus testified that defendant typed the statement himself except for a "Q and A" portion of the statement, which Kapinus typed. The part of the statement defendant typed stated:

"On the morning of July 13 at approximately two o'clock am [I] was met by a girl that I had talked to for a short time earlier in the night. She told me that she needed to find a quite [sic ] place to lie down. We were both inebriated her more so than me. I brought her down stairs to a room formerly occupied by my friend who had just recently moved out of the house at which this took place. All of the lights in the room were out. It was my going away party and there was a lot of pressure on me to have sex before I left for basic training. After laying the girl down I laid down and fell asleep for about 5 min[utes]. I woke up and saw an opportunity which I regrettably took. I started to kiss her when two men entered the room and didn't help the situation with encouragement about how I was being a man and how this was a good thing. I placed my hand down her shorts and shortly there after [sic ] felt another hand on the back of mine. It turned out to be one of the other people in the room. As that went on she mumbled that she wanted me to stop but in the state of mind that I was in I did not think anything of it, however she did say it two more times. I then heard behind me * * * that I should start having sex with her. At this point I took off her shorts and someone else removed her shirt and underwear. I then began to have sex with her. As I was having sex with her I heard some one [sic ] say to take her tampon out. To this I also paid no attention. Soon after I was told to stop by the other person and he took the tampon out. This should have told me that she did not know what was going on but I continued to have sex with her. After about three more minutes I saw one of the other two people move her head and stick his penis in her mouth. I know this because the room was illuminated by a cell phone. Her eyes were closed but I didn't think anything about it at that time, this was however another sign that she was not conscious and consenting. The cell phone went out but he continued to do this for approximately three minutes. Another five or six minutes went by and I finally realized what I was actually doing. I heard a voice from behind me say welcome to the unit and then I knew that I had to stop. I exited the room and did not look back. I was upstairs for about ten minutes when I heard one of the girls' friends' [sic ] begin to yell at the other two who were in the room with me, who were then upstairs at the time. I then realized the entire severity of my actions on top of the pain I felt from my conscience. * * *. I am incredibly sorry about what has been done and want to state that this is not the type of person that I am. I was affected by alcohol and made a horrible decision. If I could take back the past month of my life in order to prevent this situation I would do it in a heart beat."

¶ 12 In the "Q and A" portion of the statement, defendant said that Nache and Warden were also in the room during the incident.¹ Defendant believed the girl had consumed alcohol because "[h]er eyes were low, she had a hard time standing up, and she slurred her speech." Defendant said that the girl used him to hold herself up as they walked downstairs. Defendant said that the girl said to stop after he put his finger in her vagina and she was asleep when he inserted his penis into her vagina. Defendant said that no one held the girl down because she was incapacitated and they did not need to. Kapinus testified that defendant said that K.R. had told him to stop twice when he was digitally penetrating her and...