APPEAL from the Circuit Court of Macon County; the Hon. JOHN
D. SHONKWILER, Judge, presiding.
MR. PRESIDING JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
After a bench trial in the Circuit Court of Macon County defendant James A. O'Neal was convicted of rape and sentenced to imprisonment in the penitentiary for 14 to 40 years. On appeal defendant contends that (1) the trial court erred in finding the complaining witness competent to testify, (2) the evidence was insufficient to prove that the complaining witness was so mentally deficient that she could not effectively consent to sexual intercourse, (3) the evidence was insufficient to prove penetration, and (4) the sentence was excessive.
The rape was alleged to have occurred on January 23, 1976. The record shows that at the time of the alleged offense the complaining witness Lorraine Cotton was 16 years old, lived with her parents, and attended a school for the mentally retarded. Her right foot had been amputated as the result of a birth defect, and she wore a prosthesis on that leg. Her left hand was deformed and she was unable to use it to any degree at all. She also had a speech impediment.
Lorraine's sister Marie Cotton testified for the State that she and her two small children were also living with her parents on January 23, 1976. That evening Marie went to a nearby store for a few minutes leaving Lorraine at home alone with Marie's children and a 5-year-old nephew. Marie was gone for only about 10 or 15 minutes. When she returned she found the children watching television. Her nephew told her that Lorraine was in the bathroom so Marie went to look for her. The bathroom door was open and Marie saw Lorraine on her knees on the floor and defendant standing beside her with his pants unzipped. Defendant told Marie that Lorraine had asked him to help her to the bathroom. Marie had seen defendant before at a tavern but she had never seen him at her parents' house before. She asked defendant to leave and he did. She walked out to his car with him and observed the number on the license plates.
On cross-examination Marie stated that she did not hear any commotion or outcry when she returned home from the store. Defendant did not threaten her in any way. He told her he had come to the house to see her father. On redirect she stated that she had been unable to tell if Lorraine was wearing panties when she found her in the bathroom.
Rosalee Cotton, Lorraine's mother, was called as a prosecution witness and testified that she had gone to church that evening. Her husband was in the hospital then. When Mrs. Cotton arrived at the church someone met her at the door and she went back home. When she arrived home she saw Lorraine but did not observe the condition of her clothing until later after the police told her to bring it in for examination. Then she noticed that Lorraine was not wearing panties. Mrs. Cotton knew Lorraine had been wearing panties earlier that day because she had helped Lorraine dress.
On cross-examination Mrs. Cotton testified that she took Lorraine to the hospital within an hour or so after she returned home from the church. She took Lorraine's clothing, including panties which she found in the bathroom, to the police. She did not wash any of the clothing before taking it to the police. She knew defendant; he worked with her husband and had come to their house to visit him before.
Melvin Patterson, another prosecution witness, testified that he had known defendant for many years and that on the evening of January 23, 1976, defendant had come to Patterson's house and talked to him. Mary Elizabeth Hill and Irene Boston were also present during the conversation. Defendant told them he had been caught with a girl. He did not say exactly what happened but said that "it was good and that a man didn't mind going to jail for something good." He said he thought a girl was grown at the age of 16 if she had a child. He also said he wanted to go and finish the job. Defendant repeated these statements several times. Mary Elizabeth Hill and Irene Boston also testified concerning the conversation and their testimony was substantially the same as Patterson's. Mrs. Hill, however, also recalled defendant saying that he had taken the girl to a cafe, bought her a cheeseburger, and given her $20 and that he had been caught with the girl in the bathroom.
Two police officers called by the State testified that they interviewed defendant after his arrest on the day after the alleged occurrence. After being advised of his rights, defendant told them that after leaving work on January 23, he went to a nearby tavern and then to Springfield where he spent the night with two women. He denied being at the Cotton home that evening. He told them he knew Lorraine's father but had not been to his house in quite some time. One of the officers also recalled that defendant was in his car with two women when he was arrested and had told the police "I can get the women I need because I have money. I don't need to mess around with girls or force myself on anyone."
Lorraine was also called as a witness by the State. She stated that she was 16 years old and went to Sunnyside School. In answer to questions requiring a yes or no answer, she stated that she understood that she had made a promise to tell the truth and that if she did not tell the truth she would get into trouble. She stated that she had told a lie once and had not gotten into trouble for it but that she understood that she would be in trouble if she told a lie in court. At that point the prosecutor stated that he felt the witness had been sufficiently qualified to testify. Defense counsel objected on the ground that the State had not made a sufficient showing of competency but declined an opportunity to question Lorraine. The court then found Lorraine competent to testify.
Lorraine then testified concerning the occurrence. Her answers were difficult to hear or understand. She indicated that she remembered being in the bathroom of her house with a man a few months earlier. The man pulled her pants down and put his "thing" between her legs. Then her sister walked in. She stated that her private parts are on her "bottom" and that when the man placed his "thing" between her legs he pushed on his stomach and her stomach and his "thing" was in her "bottom."
On cross-examination Lorraine said she knew Dr. Sunderland and had talked to him but did not recall discussing the occurrence in the bathroom with him. She did not tell the doctor that the man only touched her with his "thing." She also stated that the man got off her when her sister came in and that her pants were in the bathroom. She knew "a little" about sex but didn't know where babies come from. She knew what pregnant means but didn't know how people become pregnant. She knew that sex was wrong and that if she had sex with someone she could have a baby. Her mother told her what happens when you have sex with someone. She stated that she remembered a little but not all, of what happened. She didn't know what an oath means but knew what it was to tell the truth. The prosecutor and her mother had talked to her about the occurrence. She did not know how long a minute was. She was going to school and knew how to read a little, count, and add numbers together. She knew that the President was Mr. Ford. She did not know the man in the bathroom. He had a coat on and took his pants half way off. She had never had sex with anyone before.
When Lorraine finished testifying, defense counsel moved to strike her testimony on the basis that the witness was incompetent. The motion was denied and her testimony was allowed to stand.
Dr. Dale Sunderland testified for the prosecution that he was a psychiatrist practicing in Decatur. He conducted a psychiatric evaluation of Lorraine Cotton on March 10, 1976. He gave Lorraine a "copy draw test," which indicated definite organic brain disease. He also had her do some simple arithmetic problems and found she could add on her fingers but not much beyond that. She did not know her birthday, and even after being told, she was not sure she could remember it. She knew that the President was Mr. Ford but thought that the Governor of Illinois was Mr. Lincoln. She was unable to read such words as "draw a circle," "draw a cube," or "draw a clock showing the time of 5:20." She told him she could read something in some of the books at school. He thought her mental age was approximately 5 ...