People v. Lamonica

2021 IL App (2d) 200136

197 N.E.3d 1218

459 Ill.Dec. 326

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

v.Anthony LAMONICA, Defendant-Appellant.

No. 2-20-0136

Appellate Court of Illinois, Second District.

Filed July 26, 2021

Michael D. Monico and Barry A. Spevack, of Monico & Spevack, of Chicago, for appellant.

Eric F. Rinehart, State's Attorney, of Waukegan (Patrick Delfino, Edward R. Psenicka, and Adam Trejo, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

JUSTICE McLAREN delivered the judgment of the court, with opinion.

¶ 1 After a jury trial, defendant, Anthony Lamonica, was found guilty of aggravated criminal sexual assault ( 720 ILCS 5/11-1.30(a)(2) (West 2016)) of L.L. The trial court sentenced defendant to 12 years’ imprisonment. On appeal, defendant argues that (1) the evidence was not sufficient to prove his guilt beyond a reasonable doubt, (2) the trial court erred by allowing the State to introduce evidence of another alleged offense, (3) the trial court erred by failing to answer the jury's question properly, and (4) defendant received ineffective assistance of counsel.¹ For the following reasons, we reverse.

¶ 2 I. BACKGROUND

¶ 3 A. Charges

¶ 4 The State charged defendant with aggravated criminal sexual assault (id. ). The indictment alleged that on or about April 17, 2018, defendant, "[b]y the use of force, knowingly committed an act of sexual penetration of the Victim L.L., in that the said defendant placed his penis in the sex organ of Victim L.L., and in doing so caused bodily harm to Victim L.L."

¶ 5 B. Trial

¶ 6 The jury trial was held on September 24 through 26, 2019. L.L. testified as follows. In the fall of 2017, L.L. and defendant met on a dating app. L.L. was 30 years old at the time, and defendant's dating profile indicated that he was 35 years old. L.L. and defendant agreed to meet at a restaurant in Lincolnshire. When they met in the restaurant parking lot, defendant immediately grabbed and hugged L.L. "really hard." L.L. testified that "it was really uncomfortable [and it was] not normal." She "had to kind of push back [and] was like, whoa. Chill out." L.L. knew that defendant was a doctor, and defendant told her that he was a doctor. Defendant encouraged L.L. "to drink a lot" though he knew that L.L. was on medication that would interact with drinking. Throughout the date, defendant made L.L. feel "real uncomfortable." Defendant kept trying to hug and hold L.L. L.L. testified that she thought "this is really weird." L.L. also thought it was weird when, after dinner, defendant suggested they walk to his car so he could drive L.L. to her car, which was parked closer to the restaurant's entrance. L.L. told defendant, "no, like my car is right here," she "said, good night," and the date was over. Defendant contacted L.L. shortly after their date, and L.L. believed that defendant wanted to go out again. They argued about or discussed how she "was uncomfortable." They had no further contact in 2017.

¶ 7 L.L. also testified that, after the first date, defendant sent her five or six messages on the dating app, which L.L. ignored. When defendant sent L.L. another message, in April 2018, she replied and they exchanged phone numbers. During a phone call, L.L. told defendant what made her feel uncomfortable on their first date, and he "seemed very receptive" and apologetic. L.L. agreed to go on another date with defendant on April 17, 2018, at Cooper's Hawk in Wheeling, which L.L. described as a nice restaurant known for its wine tastings. Defendant offered to pick L.L. up and drive her to the restaurant so she would be free to drink, but L.L. insisted on driving herself and told him that she was not going to drink that much. L.L. also told defendant that he was not "coming back to [her] house."

¶ 8 L.L. met defendant in the Cooper's Hawk parking lot. Once inside the restaurant, defendant suggested that they do a wine tasting. L.L. learned that, contrary to his app profile, defendant was 40 years old and not 35. She accused him of lying, which defendant denied. Before they were seated for dinner, L.L. ordered a wine tasting and drank it. L.L. explained that a wine tasting is about two and one-half glasses of wine. Defendant ordered a bottle of wine for the table and a second bottle when they finished the first bottle. L.L. drank two or more glasses from the first bottle of wine. L.L. testified that defendant "had maybe two or three glasses of the bottles, and I was drinking the majority of it." During dinner, L.L. was very drunk. She did not remember finishing her meal. After dinner, L.L. felt like she was "blacking out" and like she had "probably been drugged or something." She and defendant "were making out in the booth *** kissing a lot, like French kissing all over each other." L.L. testified, "that's nothing I would ever do." L.L. had not intended to drink so much but she was going through stressful personal issues at the time, she felt safe because she was with a doctor, and Cooper's Hawk was her favorite restaurant. At the time, L.L. lived alone with her two dogs in a second-floor apartment.

¶ 9 L.L. drove herself home even though she "wasn't okay to drive." Defendant wanted to drive her home, but she was "scared" to get into a car with defendant so she said no. Defendant called L.L. while she was driving, screaming at her and telling her she was driving erratically. "He was really concerned with me driving." L.L. invited defendant back to her apartment and at one point she might have told him "we would get physical, or we would have sex." L.L. explained, "it is kind of understood when you invite somebody back—you know, you're adults[,] that is probably going to happen. *** If I'm inviting somebody back, I mean, that could happen. *** But, there's no guarantee." L.L. texted her friends in a group chat that she "invited [defendant] over to f*** *** and [she] invited [defendant] over to have sex." L.L. explained, "[w]hen I was describing this to my friends I was taking on the responsibility I invited him back. I mean, we're all adults here. We know what happens when you invite someone back. *** I'm not dumb. I know it is probably going to happen."

¶ 10 L.L. testified that she did not remember what happened when they got to her apartment. But she testified that she went outside with her dogs and fell down. L.L. believed that, after returning to her apartment, she put the dogs in their cages, although she did not remember. The next thing L.L. remembered was being naked with defendant on top of her and he was "trying to like finger [her]." She did not remember how she became unclothed. L.L. testified that defendant "was trying to put his finger inside [her] vagina like rubbing [her] clit." Defendant's manner was forceful and aggressive. Defendant's finger hurt L.L. because she was not "wet." So L.L. indicated with her hands near her vagina that defendant should stop. She told defendant that it hurt. She pushed back a little. According to L.L., defendant said, "shh, no, you're fine." Defendant asked L.L. for lubricant, and she told him that she did not have any. L.L. testified, "then, you know, to make it not hurt, and, you know, I just put his d*** in my mouth probably like two or three times up and down just to get it wet." It was not to pleasure defendant but to "make it not hurt."

¶ 11 L.L. testified that, the next thing she knew, she was flipped over and defendant began having intercourse with her "doggy-style," a position in which L.L. was "on all fours." L.L. testified that she did not remember who initiated that position but in her "head [defendant] initiated it." Defendant's penis was "inside" L.L.’s vagina, it hurt "really bad," and she started "bawling." L.L. testified that she thought, "oh, my God, he is raping you." She was scared and did not think she could say no. "It felt like he had a knife down there." L.L. did not say anything to defendant at the time. She did not tell defendant to stop or get off of her, but she did tell him that it hurt. Eventually, L.L. "crawled over to the other side of the bed," flipped over on her back, and confronted defendant. L.L. testified,

"I was like, why are you doing this? Like I do not understand. Why are you hurting me? I am willing to have sex with you. What is going on? Like why are you hurting me? And there was some back and forth, and he was getting upset. You know, he was like I'm not hurting you. I was like, yeah, you are."

¶ 12 L.L. also testified,

"he starts moving about, and I get sort of worried. He seems like he is getting really upset, and then, you know, we are kind of going back and forth. So, he starts saying he's a doctor. I know your anatomy. You are fine. I am not hurting you. I said, yes, you are. You are hurting me. And then, you know, he is getting really frustrated. Then all of a sudden like I see a vein in his neck pop. Like my instincts went like oh, my God, he is like—it was like when someone gets ready to fight or flight. I was like, oh, my God[,] if I do not lay down and shut up, he is going to start hitting me." (Emphasis added.)

L.L. thought, "he is going to hit me or do something violent if I don't." L.L. "said okay. And I laid back down. [Defendant] kept going. *** [He] kept putting his penis in my vagina." L.L. "said, stop. It hurts. And [defendant] said, no, your [sic ] fine. And I wasn't fine." The penetration was forceful and violent. It was "rough, hard, fast and not like a good rough, hard, or fast." L.L. also testified, "It just felt like he was using a knife. *** It was so painful and like not normal at all." L.L. thought to herself, "you are drunk[, he] is a lot bigger than [me, and y]ou can't defend yourself." L.L. also thought, "just take it because I was afraid to do anything else, but then my body hurt so bad, and the pain was so bad that my body just like instinctively reacted. I shoved him as hard as I could off of me."

¶ 13 L.L. testified that defendant never...