APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
J. COLLINS, Judge, presiding.
MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:
After a jury trial, Albert Carroll and Albert Merino (defendants) were found guilty of rape (Ill. Rev. Stat. 1969, ch. 38, par. 11-1(a)), deviate sexual assault (par. 11-3), and aggravated kidnapping (par. 10-2). They were each sentenced to 15 to 30 years on each of these charges, to run concurrently. They appeal.
Defendants contend that the State failed to prove beyond a reasonable doubt that the acts were accomplished by force or threats of force; the State commented upon the failure of defendants to testify; defendants should not have been convicted of both rape and aggravated kidnapping; defendants were penalized for exercising their right to jury trial and their sentences should be reduced.
The complaining witness, a student at a junior college, was born in Poland. At the time of the occurrence she had been in this country for approximately 8 years. About 9 p.m. on September 23, 1971, she was walking home alone from a dancing school. An automobile stopped near her path. Carroll was driving. Merino was a passenger. There were two other male passengers. She testified that one of the men offered her a ride and she declined. One of the passengers, Michael Briseno, left the automobile and started to walk next to her. In response to his questions she told him her name, that she came from Poland and that she was going to school. He told her that his name was "John." He asked if she would like to go out over the weekend but she stated that she worked at her mother's tavern. She told him approximately where the tavern was.
Briseno then left her and went back to the car. She continued walking for about two blocks. The car followed. Then all four of the men left the car. Another passenger, Frank Matous, "grabbed" her and pulled her to a gangway between two buildings. She tried to pull away but tripped. Briseno came up and pulled her from her other side. She did not scream. Matous had his hand over her mouth. Briseno told her that if she kept still she would not get hurt. All of them walked to the automobile. She did not scream and no one struck her before or after getting into the car. Matous pushed her and told her to get in, which she did. He sat on her right side with Briseno at her left. Carroll drove and Merino sat beside him. She asked where she was being taken. She was told, "Don't worry; you will be all right." As the car was moving, Matous started making advances toward her and pulled her to him. She stated that, "There was a struggle." She tried to move away from Matous but he pulled her back. As the car proceeded, she was blindfolded by one of the men.
The car stopped at what seemed like a gas station. She saw a liquor store across the street. Briseno, Carroll and Merino got out of the car. She did not scream, attempt to get out of the car or try to attract the attention of anyone. The car windows were all closed. The three men returned with paper bags containing bottles of wine. They drank and offered her some but she refused. The car continued on and finally stopped. Defendants took a blanket out of the trunk. Three of them got out and left her with Matous. Briseno said the place would not do and they all got into the car and drove off again. During this time no one exhibited a weapon to her. She was then blindfolded again. In due course, the car stopped before a garage. The doors were opened and the car entered. Matous pulled her out of the car by her hand. Briseno and Carroll put a mattress on the floor and took out the same blanket. Briseno told her to undress. She refused and moved away. Briseno said, "Well, you have no choice." He and Matous started to pull off her sweater. She said, "All right. Just leave me alone" and then took her clothes off.
She testified that she was first raped by Matous. She asked him to help her escape but he said there was nothing he could do. She testified that after a struggle he had intercourse with her and he forced her to perform a deviate sexual act. Matous left and Briseno came over. She testified that he pulled and pushed her and was rough. She tried to resist but did not strike any of the men. She cried for most of the time and screamed when Briseno was rough with her. She was also told that she would not get hurt if she behaved. All of the four men, including defendants, had intercourse with her in turn and forced her to perform deviate sexual acts. Matous, Briseno and Carroll all repeated each of these acts. She then got up and dressed. She was again blindfolded and entered the car. They drove for about 45 minutes. She was able to remove the blindfold and noted where the car was going. She asked them to let her out. Briseno told her that she was not to call the police because the group knew all about her and had her "I.D.'s." She had been carrying a large bag with her identification and money. The car stopped in an alley and she left. She ran into a yard and hid there for 10 minutes, "hoping that they go away."
She walked to a nearby tavern some 2 blocks from her residence. She sat in a corner there and cried for about 10 minutes. A bartender spoke to her but she did not tell him she had been raped. She then ran to her apartment. She had lived there for a year. She did not know any of the neighbors. She washed, douched, set her alarm and went to bed. She had no bruises, marks or scratches on her body. Next morning she felt weak but she went to school. She had a brief conversation with one of her teachers. This teacher, an associate professor of psychology at Wright Junior College, testified that he first saw her early in the afternoon. She was at her locker, teary faced and sobbing. He took her to his office where they spoke for a few minutes. She spoke softly and hesitantly while she sobbed. He then took her to the counseling department. He participated in the conversation there for a few minutes and left.
The complaining witness further testified that she made an appointment to see a doctor. He gave her some pills to calm her. She then called the police at about 5 p.m. and went to police headquarters. An artist drew sketches of all four men as she described them. On October 20, almost 1 month after the incident, she identified Matous and Briseno in a lineup and then went with an officer to the garage.
A police officer testified that on October 19, 1971, he stopped close to a vehicle with three male occupants. One of them, seated closest to the officer, fit the description in one of the sketches. It developed that two occupants of the car were Briseno and Matous. The automobile, driven by defendant Carroll at the time of the alleged crime, subsequently identified from a photograph by the complaining witness, was found by the police at Carroll's residence. Another police officer testified that a search of the interior of the car disclosed a burlap-type blanket. Another officer obtained a key to the garage in question from Briseno and found that this key opened the small access door in the larger garage door. No further evidence was heard at trial.
• 1 The initial argument raised by defendants is directed at the issue of whether the acts in question were accomplished by force or threats of imminent force. To substantiate a charge of forcible rape, the law requires the State to prove beyond a reasonable doubt that the act was committed by force and against the will of the victim. (See Ill. Rev. Stat. 1975, ch. 38, par. 11-1(a).) Defendants urge that no weapon was used against the complaining witness; there is no evidence that any one of the four participants struck her or even exhibited a weapon; there is no evidence that the complaining witness ever attempted to escape from the automobile or that she ever screamed to attract attention from other motorists or pedestrians and it is undenied that the complaining witness had no bruises or injury.
• 2 As against these matters, however, it must be remembered that the complaining witness was confronted by four mature young men. She was first seized and pulled into the gangway. She was then pulled into the automobile and shortly thereafter she was blindfolded. She was told that if she kept still she would not get hurt. At several points the complainant struggled but, fortunately for her physical safety, she did not at any time attempt a physical encounter with the four men. The fact that they drank wine in her presence would serve as an additional deterrent to such conduct by her. The very fact that defendants blindfolded her after performance of the acts is a cogent demonstration of the lack of consent.
The cases teach us that it is not possible to formulate a definite standard for determining the amount of resistance required to evidence lack of consent. "Such a determination must be made from the facts and circumstances of each case." (People v. Montgomery (1974), 19 Ill. App.3d 206, 210, 311 N.E.2d 361.) Each case, therefore, must be judged upon the evidence presented. The real issue is "the futility of the complainant's resistance under the circumstances." People v. Murphy (1970), 124 Ill. App.2d 71, 75, 260 N.E.2d 386, citing People v. Smith (1965), 32 Ill.2d 88, 92, 203 N.E.2d 879.
The physical abduction of this one girl by four men is an important factor. It has been held that, "In weighing the evidence of force, it is proper to consider the disparity in size and strength of the parties and the place and conditions under which the act took place." People v. Browder (1974), 21 Ill. App.3d 223, 228, 315 ...