APPEAL from the Circuit Court of Vermilion County; the Hon.
FRANK J. MEYER, Judge, presiding.
MR. JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
Defendant Robert Eugene Hayn was charged by indictment in the Circuit Court of Vermilion County with the offense of rape. A jury found him guilty and, after entering judgment on the verdict, the court sentenced him to a term of imprisonment of 4 years to 4 years and 1 day. Defendant appeals from the judgment and sentence. We affirm.
At trial defendant and Karl Fottler, called as a witness by defendant, admitted that they had intercourse with the prosecutrix on the evening of July 23, 1972. At that time, she was 18 years old and they were both about one year older. Both men contend that she consented. A principal issue in the case is whether the evidence was sufficient for the jury to have determined that the State proved beyond a reasonable doubt that the intercourse occurred by force and against the will of prosecutrix. A related issue involves the admissibility of the testimony of a State's witness, a girl friend of the complainant, concerning statements made to her by complainant shortly after the intercourse.
On the evening of July 23, 1972, defendant and Fottler drove in a van to the Village of Homer in Champaign County. Upon arrival they drove to a ballpark where they saw prosecutrix. The three had met several weeks before and Fottler had dated her once. At their invitation she got into the van to accompany them to get some beer. They drove north to Ogden and Penfield in Champaign County, where they obtained some beer, and then east to Armstrong in Vermilion County. There they stopped and defendant went inside a house to purchase a gun. The evidence is disputed as to subsequent events.
Prosecutrix testified that while defendant was out of the van, she and Fottler were sitting in front. He began kissing her and pushed her against the motor. She then got out of the vehicle and started walking down the road. Fottler followed her out, ran after her and caught up to her. The two walked around a corner together and as they were walking, defendant drove up in the van. She and Fottler got into the vehicle, he in back and she in front. Defendant then drove off. Fottler asked her to come back with him and took her hand and pulled her back. She conceded that he did not grasp her strongly and that this particular act left no bruises. She stated that she ended up on her back, however. Fottler then got on top of her and kissed her. She tried to push him off and asked defendant for help. Defendant refused saying that she was a "big girl now."
Fottler began to undo her belt, she hit him on the back with her fists and he hit her across the face and then put an arm across her neck. She had become scared and didn't hit anymore but put her knees up to try to stop him. Fottler pushed her legs apart and put his hand on her crotch. She screamed, whereupon defendant stopped the vehicle and came to Fottler's assistance, taking her shoes off while Fottler lay on top of her. Defendant then helped Fottler pull her pants off and held her ankles with his hands. As she struggled, they picked her up and threw her on the mattress. Fottler held an arm across her neck and then inserted his penis in her vagina.
She further testified that when Fottler eventually got off of her, Hayn entered by the side door, pushed her back, held her by the wrists and also had intercourse with her. She cried while this was going on. When defendant was through, Fottler came back, pushed her down, held her by her hair and had further intercourse with her. She stated that she was then too tired to make any resistance. After this act was completed, Fottler apologized saying that he was drunk and didn't know what he was doing. He told her to put her clothes on and asked to see her the next night. She admitted that she said she would but said she did so because she was scared. The van then arrived at Homer and stopped at the Checker gas station.
The testimony of defendant and Fottler was generally consistent and was to the effect that complainant willingly submitted to both of them. They testified that she got in back of the van with Fottler and made no objection to his advances. Fottler testified that he originally got off of her because he was unable to get an erection. Both men testified that she then asked defendant to get into the back of the van with her and that he then had intercourse with her without her resistance or objection. They both also testified that Fottler had intercourse with her after Hayn was through.
A girl friend of prosecutrix testified that she saw the van stopped at the Checker gas station at about 10:30 p.m. that evening. She asked defendant where prosecutrix was and he answered that she was in the back of the van. As the girl friend entered the van, prosecutrix grabbed her arm and they got out. Prosecutrix was crying and her sailor tie was torn. She had difficulty walking and the girl friend had to help her into the station restroom. When they got into the restroom, the door was locked and the girl friend asked prosecutrix what had happened. Over defendant's objection, the girl friend was permitted to testify that prosecutrix said that she had been raped and when asked who did it, prosecutrix said, "both of them." Further conversation then ensued about what other people might think of the episode and whether pregnancy might result from the intercourse. The girl friend noticed that prosecutrix's zipper was broken and that she had tar on her back. Evidence had been introduced to show that there was tar on the floor of the back of the van. The prosecutrix's testimony concerning the occurrence at the station was consistent with that of the girl friend. The two girls, Fottler, and defendant all testified that defendant came to the restroom door and tried to talk to the girls but was told to go away.
The girls left the restroom after defendant and Fottler had driven off. The station operator noted that complainant had been crying, had a red and wet face and crumpled clothes and that her back looked like she had been thrown down. He further stated that she appeared to have been beaten. At his request, the girls were driven by another man to the girl friend's home. This man also noted that the prosecutrix's hair was disheveled and her clothes wrinkled. He asked what had happened but one of the girls told him, "never mind." The prosecutrix later went from the girl friend's house to her own home. Her parents' testimony was that on her arrival she was crying and hysterical, held her throat and said that it hurt. They also testified that her hair was disheveled, her arms and shirt tarred and her blouse wringing wet with sweat.
Dr. Martin Koeck testified that he had examined prosecutrix at a hospital on July 23, 1972. She had puffiness around the central area of the face, significant swelling in the vaginal area, and the beginning of a black and blue state. There was some body fluid at the opening of the hymen and a small blood clot. There was no tear or cut in the hymen. Her upper arms and neck were red and the lower arms were red and there was the beginning of a bruise around the left elbow. The vulva was swelled to twice its size. He said that this was not normal after intercourse. There was scratches or scrapes on her back and redness on the upper thigh. By the next morning her back showed a great deal of black and blue. On the third day, she had difficulty in walking and complained of pain in her ankles. At the time of discharge, she still had considerable black and blue in the vaginal area and a great deal of swelling. On cross-examination the doctor stated that the swelling could be an aftermath of prolonged tight contact. The parties stipulated that sperm were present.
In support of defendant's contention that the evidence was insufficient to show that the intercourse with prosecutrix was by force and against her will, he relies heavily on the case of People v. Taylor, 48 Ill.2d 91, 268 N.E.2d 865. There, the victim had met the complainant in a parking lot. She testified that he told her that he had a gun and wanted her to get into his car. Because of the fear of the gun, she got in and at his command sat on the floor with her head on the front seat. They then drove around awhile discussing philosophy and love. She admitted that they stopped at a stop sign but she did not get out. Eventually they stopped on a dirt road and he told her to take her clothes off. She got out and started to run but he chased and caught her. Upon his threat to rip off her clothes, she took them off unassisted. They then had intercourse. She admitted to making no resistance but said she didn't know how to resist. He then drove her near her home where they kissed goodbye. Defendant testified that she consented. The court held the evidence to be insufficient to support a verdict of guilty.
Several other cases where the evidence was similarly held to be insufficient are also cited by defendant. In People v. Bain, 5 Ill. App.3d 632, 283 N.E.2d 701, the alleged rape occurred while the parties were on a date. The victim could not remember whether she took her clothes off voluntarily, admitted that she didn't kick or scream, smoked a cigarette with the defendant after the act, indicated to the defendant that she was willing to stay longer when he asked if she was ready to leave and upon her return home made no timely complaint of being raped to her roommate. In People v. Kepler, 76 Ill. App.2d 135, 221 N.E.2d 801, complainant testified that she was raped by force in the front seat of a car. After the act, she made a date with the alleged assailant for the next night. She made prompt complaint of the alleged rape but, although the act took place in the confines of the front seat, she was not scratched or bruised and her clothes were not torn. In People v. Sparling, 83 Ill. App.2d 104, 226 N.E.2d 54, the alleged assailant and victim had dated for about a month. While parked on a country road, they had intercourse. The only evidence of force by the man or resistance by the woman was her testimony that "I just tried to stop him and he wouldn't." (83 Ill. App.2d 104, 106, 226 N.E.2d 54, 55.) Others gave the parties a ride home from where they were parked and the girl made no complaint. Later she fainted and was found to have a severe vaginal injury.
In People v. Taylor, 48 Ill.2d 91, 98, 268 N.E.2d 865, 868, the court stated that to sustain a conviction for rape where the victim has "use of her facilities and physical powers," the evidence must "show such resistance" on the part of the alleged victim "as will demonstrate that the act was against her will." In the instant case, prosecutrix testified that she hit Fottler and doubled up her legs. She further stated that she was in fear and screamed. Unlike in Taylor and Sparling, she said that her clothes were forcibly removed. Unlike in Bain and Sparling she made prompt complaint. Most importantly, the injuries she received here were far more severe than any of those received in cases cited by defendant except the unusual Sparling case. The testimony of Dr. Koeck fully ...