Appeal from the Circuit Court of Cook County; the Hon. ALVIN
J. KVISTAD, Judge, presiding. Reversed in part and affirmed in
MR. JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT. Rehearing denied February 5, 1970.
Defendant, Vernon Henderson, was charged with three separate counts of an indictment for attempted rape, rape and indecent liberties. Following a waiver of jury trial, the defendant was found guilty by the trial court for the offenses of rape and indecent liberties. He was sentenced to serve three to eight years for each offense, the sentences to run concurrently. Defendant asserts several issues on appeal:
(1) That the evidence was insufficient to prove his guilt beyond a reasonable doubt;
(2) That the court erred in considering improper evidence;
(3) That the sentence was excessive; and
(4) That the conviction for the lesser offense must be reversed because the charge arose from the same conduct.
With regard to the last issue noted, the State has argued that defendant's failure to raise this issue in his original brief precluded defendant from raising the question in his reply brief, all in violation of Supreme Court Rule 341(g) (Ill Rev Stats 1967, c 110A, § 341). Despite the fact that this issue was first raised in defendant's reply brief, the rule is well established that in the interest of justice, a reviewing court may consider all questions which appear to be plain error or affect substantial rights of a party. Ill Rev Stats 1967, c 110A, § 615; Hux v. Raben, 38 Ill.2d 223, 230 N.E.2d 831 (1967); People v. Van Hyning, 72 Ill. App.2d 168, 219 N.E.2d 268 (1966). Accordingly, we will consider all of the defendant's contentions as properly before this court.
The evidence discloses that on the evening of January 3, 1967, the prosecutrix, Sheila Fleming, was in the company of the defendant, Vernon Henderson. She was thirteen years old and a student, living with her mother and sisters at 7894 South Park, Chicago. She left her home with a friend, Renee Abernathy, and the defendant whom Sheila had known for about five years. They proceeded to the defendant's home at 7714 South Drexel, Chicago. A short time later, defendant and Sheila drove to a restaurant in the neighborhood where the prosecutrix ate and defendant had one or two bottles of beer. Defendant mentioned some films he wanted Sheila to see and they left the restaurant with defendant driving to a building at 79th or 80th and Anthony Street, where he entered and came out with some films wrapped in newspaper. Defendant then drove the prosecutrix back to his home. After she protested that she did not want to see the films, he grabbed her and took her to the basement. Defendant made three separate trips to the first floor of the home to get a projector, some beer and a can opener. Prosecutrix accompanied him on these trips because she was held by him.
Defendant then assembled the projector and showed a film that depicted sexual relations. Prosecutrix continually said she did not want to view the films and began crying. After the film was shown, the defendant placed his hand on her vagina and then removed her panties. Sometime during the showing of another film, the defendant disrobed except for an undershirt and placed himself on top of the prosecutrix. When Sheila began to cry, the defendant struck her in the head with his fist and said he might harm her more seriously. According to Sheila, the defendant than penetrated her vagina with his penis, but did not ejaculate. Later defendant demanded that Sheila partially disrobe and he placed his hands upon her vagina and breasts, once again putting his body on top of her. The defendant then lost consciousness and Sheila extricated herself from underneath his body. The prosecutrix testified that she moved a knife that had been on a nearby table and then dressed, leaving defendant's home by the back door. The prosecutrix identified a film projector, three reels of film, a pair of her panties and a pair of defendant's undershorts which were all recovered by the police from the basement of defendant's home. Upon leaving the premises Sheila encountered a police patrol car and complained of having been raped. This occurred at 4 o' clock in the morning of January 4, 1967. She was taken to her home, then to a hospital and later to a police station where she gave a statement to the police. On cross-examination the prosecutrix stated that while defendant was making advances to her he had placed his mouth on her vagina, prior to having relations with her.
A friend of the prosecutrix, Renee Abernathy, stated that she had accompanied defendant to his home along with Sheila on the night in question. She testified that she left defendant's home when he appeared nude in the living room. The State next presented the testimony of Police Officer Ryan, who testified as to his encounter with Sheila and the subsequent arrest of the defendant with the recovery of certain articles in defendant's basement.
The defense, through testimony of the defendant's wife, attempted to show that the prosecutrix had left defendant's home around 10 o'clock in the evening of January 3, 1967. Defendant's wife also stated that her husband went downstairs at 4 o'clock in the morning of the next day, because of noises she had heard; that she later followed defendant to the basement where she found him asleep on the couch and removed his clothes in an attempt to put on his pajamas and cover him with a blanket. The defendant testified that he had taken the prosecutrix to dinner on January 3, 1967; denied picking up any film that evening; that he brought Sheila back to his home and that he laid across his bed some time before 10 o'clock that evening and was not awakened until 4 o'clock the next morning by his wife. Defendant denied all of the events that were related by the prosecutrix as to the occurrences in his basement.
Doctor Price who had examined the prosecutrix on January 4, 1967, when she was brought to Billings Hospital for a medical examination because of the alleged rape, testified for the defense. He stated that no contusions or abrasions appeared in the vaginal area of the prosecutrix and that no spermatozoa was present. The doctor's medical report was then received into evidence and made a part of the record. On cross-examination, the doctor stated that despite his findings, the prosecutrix could have possibly had sexual intercourse without completion of the act. The defense also produced the testimony of Youree Jones to the effect that she had visited defendant's home at 10 o'clock in the evening, where she observed defendant lying on his bed while his wife was present in the living room on the first floor and saw an unidentified boy and girl in the basement of the home. However, this witness maintained that her observations took place on January 4, 1967, which was the day after the prosecutrix was supposedly present in defendant's home.
Defendant contends that the evidence was insufficient to prove his guilt beyond a reasonable doubt. He argues that the evidence as to the use of force was inadequate in light of the prosecutrix's own testimony so that there was insufficient proof of the crime of rape. Defendant also asserts that the medical testimony of the examining physician conclusively proves that no act of sexual intercourse was perpetrated upon the prosecutrix. The State argues that the complaining witness' testimony was clear and adequately substantiated by other evidence.
[3-6] We are mindful of the rule that reviewing courts must carefully examine the evidence in rape cases, People v. Faulisi, 25 Ill.2d 457, 185 N.E.2d 211 (1962), and that no definite standard for the degree of force necessary to constitute rape has been established. People v. Jackson, 103 Ill. App.2d 209, 243 N.E.2d 551 (1968). In this case, the record discloses that defendant was 5 feet, 10 inches tall and weighed 220 pounds while the prosecutrix was 5 feet, 2 inches tall and weighed 113 pounds. This disparity in size should be considered as a possible proof of force since the futility of resisting in the face of such odds could reasonably be assumed. However, in the instant case several factors militate against a finding that force was used to accomplish sexual intercourse. The medical report showed that no bruises appeared on Sheila's face although she testified that defendant had struck her twice, with one blow described as a hard one; and that Sheila's vagina easily admitted one finger and that with her cooperation could admit two fingers. The prosecutrix stated she was only restrained by defendant when he held her arm as they moved around his home; that despite three trips to the first floor of the defendant's house, she did not cry for help, even though she stated that on one trip to defendant's bedroom, she observed defendant's wife asleep in that room, but did not cry out; and the knife that was supposedly present and was used to influence ...