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People v. Marchese

OCTOBER 24, 1975.

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

v.

RANDALL J. MARCHESE, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Du Page County; the Hon. ALFRED E. WOODWARD, Judge, presiding.

MR. JUSTICE HALLETT DELIVERED THE OPINION OF THE COURT:

The defendant was charged with rape and indecent liberties with a child, based on the same act. After a trial by jury, he was found guilty of indecent liberties with a child but not guilty of rape and was sentenced to 4 to 12 years' imprisonment. On appeal, he raises 14 issues, none of which warrant a reversal. We therefore affirm the judgment.

The defendant was indicted for the offense of rape in that he did knowingly have sexual intercourse with the victim by force and against her will, and for the offense of indecent liberties with a child in that he did knowingly have sexual intercourse with the victim, who was under the age of 16. Both offenses charged in the indictment were based upon the same act of sexual intercourse.

At the trial, which commenced on October 29, 1973, the first witness was Charles R. Turcotte, Jr., a chemist for the Du Page County Sheriff's Office, who testified that he received certain items of clothing from Officer Dalbey. He also testified that, upon analysis, human blood was found on the inside zipper of a pair of men's pants, which later were identified as worn by the defendant. Analysis of a pair of blue jean cut-off pants, worn by the victim, disclosed a blood stain in the crotch area.

The next witness, the mother of the victim, testified that on July 9, 1972, the date the offense occurred, her daughter was 14 years of age. She also testified that, in her opinion, her daughter looked only 14 years old at the time of the offense. On cross-examination, the witness stated that the victim associated with persons between the ages of 14 and 18.

Next, the victim testified that on the afternoon of July 9, 1972, she was walking along Route 59, and a yellow and black Mustang pulled up and stopped near her. The driver was the defendant and another man was with him. They offered her a ride and she got into the car. They first drove to Crystal Lake where the defendant picked up some clothes. They then stopped at an apartment and one Sharon Fuller and her son joined them, and they all drove to a house in Downers Grove. The defendant then asked the victim to help him carry his clothes into the house, which she did. Although she told him that she didn't want a beer, he gave her one anyway and she drank part of it. As she was sitting in a chair, the defendant said, "You're going to get laid," ordered her into the bedroom, and refused to let her leave. After she entered the bedroom, the defendant ordered her to take off her clothes and, when she refused, began taking them off, assisted by Sharon Fuller, who also disrobed herself. The defendant then had sexual intercourse with the victim, being on her for some 10 or 15 minutes, during which he slugged her in the face when she continued to resist. When the defendant and Sharon Fuller were in another room, the victim escaped, clad in a man's black suit, which was an exhibit. She ran to a car leaving an adjoining driveway and told the driver that she had been raped and he took her to the Downers Grove Police Station, where she related the incident, identified the location of the house and identified the defendant.

The next witness, Michael McDaniels, who had driven the victim to the Downers Grove Police Station, testified that the victim had run from a nearby house toward his car and said, "Please help me, I've been raped." The witness testified that the victim was upset and crying.

The State then called the mother of the defendant as a witness and she testified that the defendant was 30 years old at the time the offense was committed. The defendant's mother was later called as a witness for the defense.

David Dalbey of the Downers Grove Police Department testified that he was present when the victim entered the station and said that she had been raped. He observed that she was visibly upset and had some marks on her face.

Hartmut Steinmeyer, one of the arresting officers, testified that, at the time of the arrest, he informed the defendant of his in custodial rights and that the defendant indicated that he understood them. He also testified that the defendant did not make a statement at that time.

Officer Compton, one of the officers who executed a search warrant of the premises, described the clothing of the victim found therein. He further testified that, in his opinion, the victim appeared to be 13 or 14 years old.

The testimony of Nikki Gentile, a passenger in the car of Michael McDaniels, essentially corroborated the testimony of Mr. McDaniels. He further testified that the victim appeared disoriented and that, in his opinion, the victim appeared to be older than 14 years of age.

Dr. Frisina, the physician who examined the victim shortly after the incident occurred, testified that the victim's hymen had been ruptured and that she complained of tenderness in the area of her face.

The medical technician at the hospital where Dr. Frisina examined the victim, testified that the slides given to him by Dr. Frisina indicated the presence of sperm.

The defense called Lieutenant Robert Muir of the Downers Grove Police Department, who testified that after observing the victim for a period of time, he was of the opinion that she was "a juvenile, a very young girl," although his initial impression had been that she appeared older than 14 years of age.

Anthony Marchese, the defendant's brother, who was 14 years old at the time the incident occurred, testified that he had observed the victim in his brother's car parked in the driveway of his home and had invited her into his home. In his opinion, the victim appeared to be 17 to 19 years old.

LaVerne Marchese, mother of the defendant, testified that on July 9, 1972, she observed the victim sitting in the back seat of the defendant's automobile, which was parked in the driveway of the Marchese home. She testified that at that time she believed that the victim was at least 18 years old.

The jury found the defendant not guilty of rape but guilty of indecent liberties with a child and the court sentenced the defendant to a term of 4 to 12 years' imprisonment.

On appeal, the defendant contends, inter alia, that he was not proven guilty beyond a reasonable doubt. He says that substantial evidence was presented that he reasonably believed the victim to be 16 years of age or older. Further, he argues that the reasonable belief of the defendant is an affirmative defense to the offense of indecent liberties with a child, which must be negated by the State and that the State failed to do so. Therefore, he contends that the State failed to prove him guilty beyond a reasonable doubt.

• 1 Having reviewed the entire record, we conclude that the State satisfied its burden of proof. The State was not required to produce rebuttal witnesses to testify that the victim appeared to be under 16 years of age. Rather, the in-court presence of the victim herself was sufficient to rebut the affirmative defense of the defendant's reasonable belief. The jury had the opportunity to observe the victim and to determine the reasonableness of the defendant's belief based on their own observations. Furthermore, the victim's mother and Officers Compton and Muir did testify that she appeared to be well under 16.

Moreover, the jury was instructed thoroughly on this matter by the trial judge. The pertinent instructions which were given to the jury follow.

"It is a defense to the charge of indecent liberties with a child that, at the time of the commission of the act charged, the defendant reasonably believed that the ...


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