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People v. Burch

SEPTEMBER 25, 1974.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

ROBERT C. BURCH, JR., DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Kane County; the Hon. JOHN S. PETERSEN, Judge, presiding.

MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:

Defendant was convicted in a jury trial of the offenses of rape, conspiracy and aggravated battery. He was sentenced to 4-15 years for rape, 1-5 years for aggravated battery, and 1-5 years for conspiracy, all to run concurrently.

He appeals, contending that he was not proven guilty beyond a reasonable doubt; that various errors in the admission of testimony, in closing argument and in the giving of an Allen type instruction prevented a fair trial; and that he may not be convicted of both rape and the conspiracy to commit that rape.

We have recently reviewed the case of an indicted co-defendant, William Casner, who was separately tried. (See People v. Casner (1974), 20 Ill. App.3d 107.) The testimony of the prosecutrix and corroborating witnesses at this trial is essentially the same as in the Casner record and as stated in our opinion in Casner, and we will not repeat it here. In the trial below this defendant testified that he did not have intercourse with the prosecutrix; that only Casner got into the back seat with her, and that while Casner may have had sexual intercourse based on what the defendant heard in the car, no forcible intercourse even by Casner took place.

• 1 From our review of this record we conclude that the evidence is sufficient to sustain the conviction. The prosecutrix's testimony was clear and convincing and was maintained in all substantial aspects under vigorous cross-examination. The forcible rape was corroborated by the testimony of a physician, photographic evidence and the testimony of the baby sitter who saw the victim immediately after the alleged offenses. Defendant's explanation at trial to explain the prosecutrix's injuries was inherently unbelievable and inadequate. On the whole record there was ample evidence to support the jury's finding of guilt beyond a reasonable doubt.

We next consider defendant's argument that trial errors were prejudicial.

Defendant contends first that reversible error was committed because the court on its own motion did not prohibit testimony that co-defendant Casner was convicted in a separate trial for the same offenses. Defendant claims that the prejudice of such testimony was accentuated by the prosecutor's reference to Casner's conviction in closing argument. Defendant argues that a judgment of conviction of a co-defendant in a severed trial is not competent proof on the issue of guilt in his own trial. The State responds that while the statement of the rule is generally true, it does not apply to a case in which there are accountability and conspiracy issues as here.

While defendant was testifying on his own behalf he was asked by his counsel if he knew where Casner was at the time of defendant's trial, to which the defendant replied:

"A. Yes, I do. He is in the State Penitentiary.

Q. For what?

A. For exactly what he did.

Q. To [the prosecutrix]?

A. Yes."

In closing argument the State's Attorney referred to this questioning and asked whether it did not prove that the complaining witness's story had been proven out if the co-defendant was in jail. The prosecutor also told the jury that they would receive an instruction involving accountability for another's acts and that the jury should find defendant accountable even if ...


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