APPEAL from the Circuit Court of Cook County; the Hon. WARREN
D. WOLFSON, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Defendant, James L. Thompson, was charged with rape, two counts of indecent liberties with a child (deviate sexual conduct and sexual intercourse), aggravated kidnapping, and unlawful restraint for his actions with respect to a 12-year-old girl. In a bench trial, defendant was found guilty of rape and one count of indecent liberties with a child (sexual intercourse) and was sentenced to concurrent terms of four to six years on each count. On appeal defendant contends that the evidence is insufficient to support either conviction, that the trial court erred in allowing the recall of a witness, and that he may not be convicted of rape and indecent liberties where both offenses arose from the same conduct. We affirm in part and reverse and vacate in part. The pertinent facts follow.
The minor victim testified that on February 9, 1975, the date of the occurrence, she was 12 years old. She had been visiting two of her cousins at their house that day, and at approximately 8 p.m. one of her cousins called a cab so that she could go home. The three children went downstairs to wait and the cab came a few minutes later. The cab was tan with a black top, and was not a usual cab, rather appearing to be "an everyday car." Defendant was identified by the witness as the man driving the cab.
The minor entered the cab, sitting in the front passenger's seat, and her cousins gave the defendant her home address. The defendant then drove around the block and asked the witness to find out what cab company her cousins had called. She entered the house, returning with her cousins, who told defendant the name of the cab company and then again gave him the address of the minor's destination. Defendant then drove away, stopping once to buy cigarettes, and stopping again to get matches.
After driving for half an hour, defendant stopped the car in an area which had factories, houses, and a railroad, approximately three blocks from the minor's house. The witness stated that defendant then turned off the motor, reached over to the lock on the passenger's door, and pulled her by her legs until she was down on the seat. Her head was on the door and her feet and legs were up by the steering wheel. The minor was screaming and hollering during this time. Defendant pulled open her coat, causing buttons to pop off, and put his hand over her mouth and told her to shut up. He then pulled off her shoes and pulled one leg out of her pantyhose and panties. Defendant licked her vagina and put his tongue in her mouth.
The minor testified that after this defendant then told her, in cruder language, to insert his penis into her vagina. She obeyed, and defendant then got on top of her and proceeded to have sexual intercourse with her. Defendant declared that he was going to bust the witness' "cherry" and asked her, again in cruder terms, if she had ever had intercourse before. She replied no and they argued over the truth of her response. He then got up and told the minor to get dressed. Defendant warned her not to tell the police or he would take her to his apartment and "screw" her.
After they both got dressed, defendant put his arm around the witness and told her he was sorry. He started crying and then told the witness "to give him [her] tongue and then he was biting it and everything and he was kissing [her]." The witness wiped away his tears and asked defendant if he had any family, to which he responded that nobody cared about him. Defendant asked her for some paper on which he wrote his name and phone number at work, which he gave to the witness. Defendant mentioned Valentine's Day to her and asked her to call him at work.
Defendant then proceeded to drive the minor home. Upon arrival the witness told defendant she would go get some money to pay him, and he told her she did not have to pay. She responded "Yes, they might suspect something," and ran into the house. Her brother, Kenny, 14 years old, was at the door and she told him to pay the driver. The witness then went to the back of the house to the bathroom, where her brother, Kevin, 17 years old, was taking a bath. On the way she removed her coat. The witness testified that about five minutes elapsed between her arrival home and her entry into the bathroom, but stated that she had gone directly to the bathroom. She told Kevin she had been raped.
The minor also testified that on the date of the occurrence she was five feet tall and weighed 90 pounds. She never opened the door to get out of the car, never mentioned she wanted to leave, and no one prevented her from exiting the car. The witness first stated that she had previously testified at an earlier hearing that an oral sex act had been committed and could not recall if she had told this to police on the date of the occurrence. The State later stipulated that she had not mentioned oral sex either to the police or at the preliminary hearing.
The witness identified panties and pantyhose as being the ones she wore on the night of the occurrence. It was stipulated later that she would have testified that the panties had no reddish-brown stain in the crotch area when she put them on, but that they did when she got home. There was an additional stipulation that a microanalyst, if called, would have testified that the vaginal smears showed human spermatozoa, and the stains on the panties were of human blood.
The minor victim's brother Kenneth next testified for the State that on February 9, 1975, at about 9 p.m., he was at home watching television when his sister arrived. She came in and told him to pay the cab driver. He said she made no complaints to him and that he did not observe anything unusual about her appearance. Kenny went out and paid the cab driver, whom he identified as being the defendant.
The victim's brother Kevin testified that at 9 p.m. on the night of the occurrence he was home taking a bath. His sister entered the bathroom and told him she had been raped. Kevin put on a robe and went to the door, but Kenny told him that the cab driver had already left. Kevin testified that when his sister entered the bathroom "she was crying and shaking and her hair was all over her head and her clothes were * * * not neatly on her."
The minor victim was then recalled as a witness. She testified that, after they had arrived at her house, she told defendant she wanted him to be paid "[s]o he wouldn't hurt my brother, so he wouldn't be suspicious." Over defense counsel's objection she then testified that she wiped defendant's tears away that night "[s]o he wouldn't hurt me and I was playing along with him." Finally, she indicated over defense counsel's objection that another reason why she had wanted defendant to be paid was so her brother could see him. However, she admitted that she only told Kenny to pay the cab driver and not to be sure to look at him.
Officer James Griffin of the Chicago Police Department testified that on February 9, 1975, he and his partner, Officer James Sesso, received a call at about 10:30 p.m. to go to the emergency room at St. Anne's Hospital. Upon arrival he saw the minor victim in a green hospital gown, in an "emotional condition" with "tears coming from her eyes." He conversed briefly with her and received from her a piece of paper with some telephone numbers on it. Officer Griffin checked out the telephone numbers and then went to the 5000 block of West Van Buren where he spoke with Jerry Jenkins, who operated a cab service. Thereafter, accompanied by other police personnel, they proceeded to the 5200 block of West Van Buren. Officer Griffin observed a black-over-bronze Buick parked on the street which was stipulated to as being defendant's car. Jenkins led the police upstairs to defendant's apartment. Officer Griffin was admitted to the apartment by defendant's wife, and found the defendant in bed. Defendant dressed and accompanied the officers to the police station, where he was later picked out of a lineup by the minor victim and her brother Kenny.
Officer James Sesso testified that he spoke with defendant at the police station in the early morning hours of February 10, 1975. Defendant told him that he understood his rights and then related to Officer Sesso the events of the evening. He stated that he had picked up a fare the previous evening who appeared to be a girl of 17 or 18 years of age. She had put her arm around him during the trip and was kissing him, so he pulled over and they had intercourse. He then drove her home and told her not to pay him, but she insisted so that "it wouldn't look suspicious. "The girl entered her home and a short time later a young male Negro came out and paid defendant $2. Officer Sesso also observed the minor victim when she ...