APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR
DUNNE, Judge, presiding.
MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
After a bench trial defendant was found guilty of rape, indecent liberties with a child, and attempt deviate sexual conduct and sentenced to concurrent terms of 6 to 18 years on the charge of rape and 6 to 14 years on each of the charges of indecent liberties with a child and attempt deviate sexual conduct.
On appeal defendant contends:
"1. the three concurrent sentences for offenses arising from the same conduct were improper,
2. the prosecutor's conduct prevented defendant from receiving a fair and impartial trial, and
3. the trial court abused its discretion in allowing the prosecution to recall a material witness after the witness had been extensively examined on direct and cross-examination."
Defendant had been visiting the older sister of the complaining witness, Claudia Gilliam, aged ten, and when he left about 10:00 P.M. he told Claudia that he would take her for some ribs. He returned at approximately 12:15 A.M. and Claudia went with him to a rib place about one block from her house and, after she had bought the ribs with money given to her by the defendant, he suggested they go to his apartment for some pop. There he refused to allow her to watch television and told her to come into the bedroom which she did and it was her testimony that, while she was sitting on a bed, defendant pulled down her panties and put his hand into her privates. Then he pulled down his pants and put his penis into her privates. Because she was yelling, he beat her about the face, bit her jaw, held his hand over her mouth and said he would kill her. After withdrawing his penis, he rolled over and laid on his back and then told her to commit an act of oral copulation. When she refused, he pulled her head down with both of his hands to his penis. Shaking and scared she refused again to comply and he then put his clothes on and drove her home. When she arrived home she told her sisters, one of whom called the police.
On cross-examination, Claudia testified that she didn't know the address of the building where she was raped, but that she could describe it and take someone to it.
Before resting its case in chief, the State made a motion that Claudia Gilliam be recalled, informing the court that during a lunch recess, Claudia, accompanied by the two prosecuting attorneys and other members of the State's Attorney's Office, was taken on a tour of the general area where the offenses occurred and was able to identify the two buildings to which she was taken by defendant. The court allowed this motion limiting Claudia's testimony to the identification by the introduction of photographs of the buildings.
Since defendant does not challenge the sufficiency of the evidence presented to prove his guilt, we find it unnecessary to set out any further evidence.
• 1 Defendant first questions whether the three concurrent sentences for crimes arising from the same conduct were proper. The State has conceded and we agree that the conviction and sentence for the offense of indecent liberties with a child *fn1 be reversed because it resulted from the same conduct, has the same elements, and involved the same victim as the rape offense and therefore defendant may not be sentenced on both, either concurrently or consecutively. Ill. Rev. Stat. 1971, ch. 38, par. 1-7(m). See also People v. Miller, 7 Ill. App.3d 878, 289 N.E.2d 23; People v. Thomas, 130 Ill. App.2d 1107, 266 N.E.2d 721.
With regard to the question as to whether the convictions for rape and attempt deviate sexual conduct *fn2 resulted from the same conduct, the Thomas case cited by defendant is significant. There, defendant was charged with two offenses of indecent liberties, an offense of rape, and an offense of deviate sexual assault and the court, in a fact situation similar to the case here, affirmed the convictions for rape and deviate sexual assault as arising from separate acts and reversed the convictions for indecent liberties because they were necessarily included in the other two offenses. In People v. Oldsby, 119 Ill. App.2d 412, 256 N.E.2d 27, the defendant was indicted on two counts for the offenses of attempted rape and deviate sexual assault and the court held that the acts involved in those crimes were separate and distinct and that the accused was properly convicted on each charge. See also, People v. Moore, 51 Ill.2d 79, 281 N.E.2d 294, where separate sentences were sustained for four offenses including rape and deviate sexual assault with the court stating at p. 87:
"Finally defendant contends that because all of the charges arose out of one transaction, involving one victim, it was improper to impose more than one sentence. Each of the offenses of rape, robbery and burglary, although committed in the course of the same transaction, involves conduct clearly divisible from the conduct which constitutes the other offenses. With respect to the ...