APPEAL from the Circuit Court of Cook County; the Hon. MATTHEW
J. MORAN, Judge, presiding.
MR. JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:
David Rodriquez (hereinafter called "defendant"), was charged with indecent liberties with a child, deviate sexual assault and rape. The jury returned verdicts of guilty as to indecent liberties with a child and deviate sexual assault. They were unable to reach a verdict on the charge of rape and a mistrial was declared as to that count. The defendant was sentenced to the penitentiary for not less than six nor more than 15 years.
The issues presented for review are whether the defendant was proven guilty beyond a reasonable doubt and whether the defendant was improperly convicted because of inconsistent jury findings.
According to the prosecutrix, Maria Montejano Sandoval, on October 11, 1973, she was raped and deviately assaulted. She and her friend, Wanda Torres, left her home at 2104 South California, Chicago, Illinois, at about 8:30 in the evening. They walked toward Harrison High School. They remained sitting near the high school for awhile and then left to pick up another friend, Wanda Flores, who lived at 24th and Francisco. Returning with the third girl, they sat near a statue on Marshall Boulevard and 24th Street.
The area around the statue is a place where people usually congregate; however, there was no one else there at that time and the girls left. They walked and sat down near a car close to Francisco Avenue, a dead-end street.
While they were sitting near a house across the street from the high school, Dippy Dan, whom Maria Sandoval, the prosecutrix, had seen before, came up, talked with Wanda Flores, left and returned with three friends. Wanda introduced the three as Crazy Rubin (Rubin Garnika), Tarzan and Angel. The young people sat and talked for a few minutes. After the conversation, Sandoval and Crazy Rubin got up and walked about five houses down the street from where they had been sitting.
After the complainant and Rubin had walked the short distance of above five houses, Rubin pushed her into a gangway, but she did not fall. Once in the gangway, the two of them talked, after which she allowed him to hug and kiss her. Within five minutes Wanda Torres came to about three feet from the gangway and said to Sandoval, "Let's go home." Sandoval replied, "In one moment." Wanda Torres then turned and walked away. Sandoval did not ask her to wait.
After a few more minutes of kissing, Rubin said he wanted to have sex with Sandoval and she replied she was not that type of girl. They argued, she said he offered her money which she refused and he showed her what she believed to be an I.D. card for the Northwestern Railroad. After the conversation, Sandoval said she was forced to the ground and Rubin put his penis in her vagina.
The complainant said while she was on the ground seven other individuals entered the gangway. She identified the defendant as one of the group and said he came over to her and pulled down her pants which she had previously pulled up. She further stated he then placed his penis in her mouth and holding her head with his hands made her go up and down. This was followed by anal penetration and then intercourse. The others in the gangway watched and laughed. Finally, a third man then put his penis into her mouth, anus, and vagina. After the third man finished, they let her go and she walked out of the gangway, whereupon the others also left.
The prosecutrix first testified the defendant was the second one to have sex with her. She later stated he was not, and then again said he was. On cross-examination, she agreed at the grand jury proceedings in this cause she had said the defendant was the third one to have sex with her.
After Sandoval left the gangway she walked toward Harrison High School, saw two police officers and told them she had been raped. They pursued the individuals but were unable to apprehend them, so they returned and took her to St. Anne's Hospital. She talked to the officers at the hospital, told them what happened and gave them the names she knew. She was examined and released.
On cross-examination, Sandoval admitted she did not tell the police or the examining doctor, both of whom she saw immediately after the incident, of the oral and anal acts of her assailants. In fact, she did not tell anyone of these acts until July of 1975, about nine months after the incident.
The prosecutrix was 15 years old at the time of the occurrence, and was 18 years old, married, and a mother at the time of the trial.
Officer Shenberger testified the complainant was upset and crying during their conversation at the hospital. She told him of going into the gangway, of being threatened and of being raped by three individuals. She did not say any of them had ...