APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
L. CURRY, Judge, presiding.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
Following a jury trial defendant was found guilty of rape and sentenced to serve a term of 6 to 15 years. On appeal, he presents the following issues for review: (1) whether he was proved guilty beyond a reasonable doubt; (2) whether he was denied a fair trial by certain evidentiary rulings; (3) whether prosecutorial misconduct denied him a fair trial; (4) whether he was denied due process of law by the State's suppression of exculpatory evidence; (5) whether the trial court committed reversible error by refusing to give a battery instruction; and (6) whether his sentence was excessive.
It appears that complainant, Lucy Fitzpatrick, left work at 11:30 p.m. and began to drive home. Sometime before midnight her vehicle stalled due to an overheated radiator. She accepted an offer of assistance from defendant and, in his vehicle, they proceeded westward along Route 72 in search of an open gas station to obtain water for her automobile's steaming radiator. Finding none, after a 20- to 40-minute search, defendant drove to a trailer court located next to a forest preserve along Route 72 where he obtained plastic containers which he filled with water from a nearby stream. Although their testimony conflicts concerning the routes taken to the trailer park and whether Lucy expressed a desire either to telephone her husband or to be driven home, they were in accord that up to the time defendant had filled the bottles, his behavior toward her was courteous and that he appeared conscientious in his efforts to assist her. Further, they are in agreement that an act of sexual intercourse occurred in defendant's car after he returned with the water; however, their testimony is substantially divergent regarding the circumstances surrounding this act.
Complainant testified that after placing the water containers in the back seat, defendant reached for her hand. When she recoiled and stated that she would rather walk, he announced that he would seduce her. In attempting to exit the car, she unlocked the passenger door 10 times, but defendant reset the lock on each occasion. She was then pulled into a horizontal position with her head toward the steering wheel. Meanwhile, she pleaded with him to let her go, reminding him that she was married. Defendant cupped her mouth, stifling any screams, and clenched his fist as if to hit her when she tried to bite him. He then threatened to use a knife, stating he would hurt her as he had someone else; but he did not produce a knife. When she tried to push him away, he began choking her with both hands and then put one hand over her mouth as he used the other to pull down her panties and pantyhose to her ankles. He lowered his own pants to his knees and began manipulating her vagina with his finger. He then penetrated her vagina with his penis and said, "I am Bad Jerry." When she continued her struggle, he got angry and returned to the driver's seat, stating that she would not get away with such actions. He began to exit the park, using one hand on the steering wheel and the other alternately to hold her left arm and to lock the passenger door each time she attempted to escape. When defendant had to use both hands to execute a U-turn, she jumped from the moving car. In so doing, she fell and her purse dropped on the road.
Defendant, on the other hand, testified that when he returned to the automobile she was sitting in a slouched position in the seat, with her legs propped up in such a way that "he could see everything she had, just about." He suggested that they copulate and, when she agreed, he assisted her in disrobing and they made love for 20 minutes. After they had dressed, he drove out of the trailer park and, when he stopped to make a U-turn, she got out of the car, fell down, and then began to run. He estimated that they had been together for about an hour prior to the time of the intercourse.
It was complainant's testimony that after escaping from the car she ran screaming to the trailer park and knocked on the doors of several trailers before gaining any attention. In the fourth trailer, Ronald Finley turned on the lights and opened the door to her. She inquired whether there was a lady in the house and, once assured that a woman was present, she entered the trailer. She asked to use the telephone and insisted that Finley not touch her and also that he leave the door open. Finley testified that her hair was messed up, she appeared shaken, and he had difficulty in making sense of her conversation. She telephoned her husband at home to no avail and then called his place of business where she spoke to David Brunner, a co-worker of her husband.
When Brunner testified, he said that he had difficulty understanding her but he did ascertain that she had trouble with her car and offered to drive her home. When he arrived at the trailer some 15 minutes later, she first came to him but then, without explanation, backed away. He noticed that she had been crying and that she spoke incoherently about her purse. She, Finley and Brunner entered the latter's car intending to find her car and push it off the road. As they passed the spot where her purse had fallen, Brunner saw articles scattered on the road and reached for her hand, but she demanded that he not touch her as she had just been raped. Finley corroborated the circumstances surrounding this exclamation, but he quoted her as saying, "I think I have been raped." They did not stop to pick up the purse or its contents but drove directly to a nearby restaurant, where Brunner telephoned the police.
Defendant testified that after complainant left his car, he had to leave the scene to clear the way for another motorist. He did, however, return to the park but could not find her. When he arrived home, he told his wife that he had assisted a woman motorist and that she had jumped out of his car.
After Brunner's phone call, several police vehicles, an ambulance, and complainant's husband soon arrived at the restaurant. The latter and one of the officers testified to her shaken and excited condition at this time. She told the police that she did not wish to be taken to the closest hospital which was her place of employment, because of the embarrassment. A police sergeant purportedly directed that she be transported to a more distant hospital.
At the hospital, she first examined herself and observed some bleeding from the vagina. A doctor who had examined her testified that he observed redness of her neck, knuckles, and the skin close to the vagina. He also found a two to three millimeter laceration located three centimeters inside of the vagina, which could have been caused by severe pressure such as that produced by forcibly inserting a penis into the vagina. Although he did not notice any bleeding, the doctor said that the laceration was recent in origin and that any blood may have disappeared through the passage of time or could have been wiped away. He also discovered a brownish-yellowish secretion which, in his opinion, could have included old blood cells meaning cells which were more than an hour or so old. Notwithstanding the fact that her blood pressure was within the normal range for her age and that she appeared alert and coherent, the doctor prescribed valium to help relax her. On cross-examination, he referred to the marks on her neck as bruises. Complainant, her husband, and Investigator Smith had simply described them as red marks or red compressions.
The investigation eventually centered around defendant and, four days later, he was asked to come to the police station where complainant identified him, after which he was charged with rape and read his constitutional rights. It was the testimony of Investigator Smith and defendant that he told the officer then that he could not have committed the offense, because he was in Michigan. He admitted that he did not tell the police at that time that he had consensual intercourse with complainant.
• 1 We will first consider a contention of the State that our review is limited to the issues specified in defendant's oral motion for a new trial. An oral motion preserves all errors for review unless the State objects and requests that the grounds be specified as in a written motion. (People v. Biers (1976), 41 Ill. App.3d 576, 353 N.E.2d 389.) The State relies upon People v. Parker (1970), 129 Ill. App.2d 43, 262 N.E.2d 751, which in dictum stated that a request for the specification of grounds in an oral motion will delimit the issues preserved for review to those actually enumerated. We think that such reliance is misplaced where, as here, the statement of the prosecutor purportedly requiring specificity in the motion does not in fact do so. The record discloses that he waived the requirement of a written motion, reserving the right to present arguments as to purported grounds for new trial. Defendant then stated four grounds for review, but the prosecutor said nothing. In the absence of some notice to defendant that the State was requesting the specificity of grounds required in a written motion, we do not believe the issues on review should be restricted. Thus, our review will not be limited by the parameters of the oral motion for a new trial.
• 2 We turn then to defendant's first contention that the trial court erred in failing to direct a verdict in his favor at the close of all the evidence. He argues that the State failed to prove the existence of the essential element of force and, in any event, that he was not proved guilty beyond a reasonable doubt. It is his position that the act of intercourse was not accomplished against complainant's will and that the evidence supports a reasonable belief that her struggles were not seriously intended and also because, when questioned as to whether intercourse was consensual, she replied, "No. Yes, forced." We disagree. The facts and circumstances in each case must be considered in determining whether defendant intentionally had intercourse with complainant against her will (see People v. Triplett (1970), 46 Ill.2d 109, 263 N.E.2d 24; People v. Moore (1966), 77 Ill. App.2d 62, 222 N.E.2d 142), or whether complainant voluntarily submitted to the act of intercourse (People v. Lee (1968), 96 Ill. App.2d 105, 238 N.E.2d 63). That the act was accomplished against a complainant's will may be established by evidence of the accused's use of force (People v. Perez (1952), 412 Ill. 425, 107 N.E.2d 749) as well as by resistance on the part of the complainant (People v. Sims (1972), 5 Ill. App.3d 727, 283 N.E.2d 906). 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 in weighing the evidence of force (Perez; Sims), and there is no requirement that the woman resist where it would have been futile or where the result may have been serious physical harm (Lee; Sims).
• 3 In the instant case, complainant's testimony describes a struggle between a five foot, 105 pound woman and a man of approximately six feet in height who weighed 170 to 175 pounds in a dark trailer park which was adjacent to a forest preserve. She testified that defendant pulled her toward him and repeatedly reset the car door's lock frustrating her initial attempts at escape; that he held her down on the seat; that he choked her; that he threatened her with a clenched fist; that he claimed to have a knife; and that he assured her he would not hesitate to hurt her as he had done to another. Regarding her resistance, she further testified to numerous attempts at escape, to pushing defendant away with her hands and knuckles, to kicking him, to attempts to scream and bite him, to tightening her muscles at the time of penetration, and to her actual escape by jumping from a moving vehicle while he momentarily left her unattended. A doctor testified to the reddened condition of her neck, knuckles, and the skin in the area of the vagina as well as to the swollen condition of the lips of the vagina and a laceration located within the vagina. Her husband and Investigator Smith also observed the red marks on her neck, and her husband also testified to the redness of her knuckles. He and Smith confirmed that Lucy's purse and its contents were scattered upon the roadway at the location where ...