APPEAL from the Circuit Court of Cook County; the Hon. FRED
G. SURIA, JR., Judge, presiding.
MR. PRESIDING JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
This appeal presents the classical issue in many rape cases, consent vs. force. Following a jury trial, the defendant was found guilty of rape (Ill. Rev. Stat. 1973, ch. 38, par. 11-1) and deviate sexual assault (Ill. Rev. Stat. 1973, ch. 38, par. 11-3) but not guilty of aggravated kidnapping. Defendant was sentenced to not less than 7 nor more than 21 years. The critical issue is whether the evidence established defendant's guilt beyond a reasonable doubt.
On January 8, 1975, the complainant arrived at a Chicago lounge about 9 p.m. About one hour later defendant arrived. Because of an encounter with the defendant at the same lounge on January 4, 1975, complainant was scared and attempted to reach her husband by telephone. Unable to reach her husband and without money, she called her sister-in-law and thereafter called for a cab. Sometime later a cab arrived, but because the driver was drunk, complainant did not take the cab. Later she went outside to hail a cab, when the defendant grabbed her, telling the cab driver to leave. A struggle ensued when defendant hit complainant in the jaw, knocking her down. The defendant then pulled the complainant to his nearby apartment.
According to complainant, upon her refusing defendant's order to take off her clothes, the defendant grabbed her blouse, bra, slacks, and panties. The complainant then took off her clothes, the defendant his, and thereafter the defendant forced the complainant to have intercourse, submit to an act of cunnilingus, and to perform an act of fellatio. Sometime later, upon defendant falling asleep, complainant got up, put on some clothing, and left. She then proceeded directly to a nearby police station where, about 7 a.m. on January 8, 1975, she talked with Chicago policewoman Denise Roberts.
Officer Roberts testified that the complainant, very agitated, nervous and upset, was wearing a pair of yellow slacks, very dirty, with the zipper not in too good condition, and a yellow blouse that had two buttons on the front which she held closed. The complainant told Roberts that she had been at the defendant's apartment from around 1:30 a.m. to 7 a.m., and that she had been forced to perform sexual acts, including oral copulation.
Although the complainant could not remember the address of the defendant's apartment, she led the police to the location. When defendant answered the door for the police, he was advised of his rights and told he was under arrest for rape. When told who the complainant was, the defendant said, "I got a little rough with her last night and she might be mad." To an investigating police officer, the defendant, who is 6'5", 270 lbs., stated the complainant willingly went to the defendant's apartment and willingly had intercourse with him that night, claimed that she was his girl friend and that he had bought her a dress, and stated he previously had intercourse with her on about five occasions.
The complainant was examined at a nearby hospital. It was stipulated by the parties at trial that the doctor who examined the complainant at about 10:50 a.m. on January 8, 1975, noted the presence of sperm in the vagina and a small amount of swelling in the pelvic region. The complainant testified that the doctor examined her jaw and then gave her something to rinse out her mouth. Although the complainant testified the defendant hit her more than five times during the night in her head, there is no medical evidence of such.
The owner-bartender of the lounge testified that the complainant and defendant left the lounge about six seconds apart about 1:30 a.m. Fifteen minutes later they were standing on the street about three doors down from the lounge.
The defendant did not testify. However, the defendant presented the following evidence. The owner-bartender of the lounge testified that on at least seven occasions he saw the complainant and defendant in the lounge together; that they did not come in together; that they acted like any other two persons would ordinarily act; and that he had never seen them argue. He further testified that on one occasion he saw complainant in front of his lounge chasing her husband with a bottle, and he tried to break it up; that complainant and defendant left together that night because they left six seconds apart and the door never closed between them; and he never saw complainant make a telephone call on the night in question.
A lady patron of the lounge, who had known the defendant for about one year and one-half, testified that approximately a month or a month and one-half before the date in question, she saw complainant and defendant together; that they double dated one night; that she saw them dancing a few times; and that she and her friend brought them home from the dance in the same car about 1:30 a.m., and they were kissing in the back seat. The complainant testified she met the defendant through a girl friend and had known him for about a month and one-half.
Another female witness testified that she was at a boutique about a month before the incident and saw defendant buy the complainant a dress; that the witness used to work in a cleaners store in the building in which defendant lived and the defendant would stop and talk. The complainant denied that defendant ever purchased a dress for her.
The overriding issue here is the resolution of the question whether the evidence is so unsatisfactory, improbable, or implausible so as to raise a reasonable doubt of the defendant's guilt, thereby requiring the reviewing court to substitute its judgment for that of the jury. People v. Reese (1973), 54 Ill.2d 51, 58, 294 N.E.2d 288.
There is no question that during the approximately five hours the complainant and defendant were at the latter's apartment the morning of January 8, 1975, they had intercourse. The complainant testified that she was forced to go to the apartment and forced to engage in the acts of intercourse and fellatio, and that an act of cunnilingus was performed. On the other hand, it is the defendant's contention, as told to an investigating police officer, that the complainant willingly engaged in the act of intercourse. There is no evidence to dispute the acts of fellatio and cunnilingus.
To establish the unsatisfactory, improbable, and implausible quality of the State's case, the defendant contends that: (1) the complainant lied when she stated she did not go to the washroom while at the police station; (2) she lied about her blouse being torn on the street; (3) she contradicted her previous story when she denied, on the witness stand, that defendant was bothering her in the lounge; (4) she described the alleged assault one way at the police station and another way on the witness stand; her story about being battered by the defendant was contradicted by the physical evidence; (5) she contradicted her previous story when she stated in court that defendant had ripped and torn her clothes off; (6) the only witness vouched for by both sides contradicted her story on six points; and (7) the complainant's testimony concerning her association with the defendant was contradicted by two witnesses.
• 1 Each of the enumerated points involves conflicts in the testimony. Under such circumstances it becomes a question of the weight, if any, to give to particular evidence and the credibility of the witnesses. Under our system of jurisprudence, these issues are for the jury's determination. Our supreme court has clearly held in People v. Novotny (1968), 41 Ill.2d 401, 411-12, 244 N.E.2d 182, and numerous other cases, that evidence sufficient to establish guilt beyond a reasonable doubt, if believed by the trier of fact, is sufficient to sustain the conviction. It also held that when a trier of fact renders a decision based upon credible and substantial evidence, a reviewing court may not assume the role of the trier of fact in assessing the weight of the evidence. The principles enunciated in the Novotny decision is still the law in Illinois. See People v. Todorovic (1st Dist. 1977), 53 Ill. App.3d 1, 368 N.E.2d 471.
The record in this case indicates that the complainant's testimony was thoroughly and exhaustively cross-examined by defendant's competent and experienced trial counsel. The slacks and blouse worn by the complainant on the date in question were admitted into evidence, were the subject of considerable argument by the attorneys, and were taken to the jury room during their deliberations. The jury also heard the testimony as state witnesses of the complainant's husband and sister-in-law, the owner-bartender of the lounge, and two Chicago police persons. The defendant also called the owner-bartender of the lounge and two witnesses whose testimony indicated that the complainant and defendant were on a friendly basis prior to the events of January 8, 1975. All of these witnesses, including the complainant, were subjected to very thorough cross-examination. The final arguments covered every point raised by the defendant in his list of seven issues specified earlier in this opinion. Thus every issue now raised on appeal was competently and exhaustively argued to the jury.
The jury was charged by the trial court in the instructions that it was the sole judge of the credibility of the witnesses and of the weight to be given to this testimony: it was advised that "a male person of the age of fourteen years or older who has sexual intercourse with a female, not his wife, by force and against her will, commits the crime of rape"; and that "by force and against her will" means "that under the circumstances, the female did not voluntarily consent to sexual intercourse." Thus the jury by its verdict, after considering the testimony and evidence, believed the complainant's testimony that the act of sexual intercourse was by force, against her will, and that she "did not voluntarily consent to it." The same is true of the charge of deviate sexual conduct, namely the jury concluded that the defendant, by force or threat of force, compelled the complainant to perform or submit to acts of deviate sexual conduct.
So now the question is whether there is credible and substantial evidence to support the jury's verdict. There is no dispute that the complainant and defendant had intercourse on January 8, 1975, and that on that date they were not man and wife. The complainant testified that she had an encounter with the defendant on January 4, 1975 she had known him for about one month and considered him a friend when defendant forced her to go to his apartment and told her "* * * he wanted some pussy." When defendant discovered she was in her menstrual period, the defendant said, "there will be another time" and ...