APPEAL from the Circuit Court of Kane County; the Hon. JAMES
E. BOYLE, Judge, presiding.
MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
In a jury trial the defendant was found guilty of the offense of rape and was sentenced to 10-20 years in the Department of Corrections.
In this appeal the defendant has raised three issues: (1) was the evidence adduced sufficient to prove beyond a reasonable doubt that the intercourse occurred against the will of the complaining witness; (2) was it proper to introduce the alleged details of the rape complaint; (3) whether the trial court erred in refusing to modify Illinois Pattern Jury Instructions, Criminal, No. 26.01 (hereinafter IPI Criminal) by the supplement of Standard 5.4 suggested by the ABA Standards Relating To Trial By Jury.
The complaining witness was 19 years of age at the time of the incident. She worked the second shift on September 30, 1976, returned from work at approximately 12:30 a.m. and went to sleep about 2 a.m. During the night she was awakened by a man holding her down at the shoulders. She resisted, screamed, and the man then pressed an object against her ear and threatened her. He also hit her behind the ear approximately 5 times and the victim found lumps there two days later. The man then performed an act of cunnilingus on her while he held what appeared to be a screwdriver against her hip. Penetration was finally achieved at approximately 5 to 5:30 a.m. The complainant testified that as the man turned the lighted clock-radio down she was able to see his face. He told her to look the other way, but she continued to look at him, and aided by the early morning light, discovered that she knew who he was. When the man left the complaining witness immediately went to the apartment of her neighbor, Mrs. Rivera, and complained that she had been raped. She went there because she did not have a phone to call the police. This was within 10 minutes or so after the man had left her apartment. The police were then called.
When the police arrived the witness was upset, emotional, crying and obviously jumpy when talking to the police officer. She told the officer that she had been raped and that the man who had raped her had blond hair and lived next door to the Rivera's apartment, but that she did not know his name.
A Sergeant Heine testified that he went to the defendant's apartment shortly after 5:30 in the morning, woke him up, and advised him that the complaining witness said that he had raped her. The defendant then stated: "* * * why that pig, I would never touch her." The defendant was then arrested. As the police were bringing the defendant down the stairs the complaining witness recognized him, and stated: "That's him. That's him. That's the man. There's no doubt in my mind."
Detective Mull testified that later that morning the defendant was given his Miranda warnings, made a statement and denied having intercourse with the complaining witness. He stated that he went home to his apartment at about 2:40 a.m. and went to bed. However, at the time of his statement the defendant asked Detective Mull whether the witness had any bruises on her. In answer to a question relative to this at trial, the defendant stated: "I was concerned if I was being charged with Rape if she had any marks on her at all."
Three days after his arrest, on October 4, the defendant told Deputy Sheriff Thiel that he had sex with this girl in Elgin and the agreement was for some money. He also told Thiel that he did not think the sex was any good so he took back the money and left.
The defendant testified in his own behalf and stated that on the night in question he had been out drinking in various bars after he had had an argument with his wife. He said that upon his return home the complaining witness called to him to come to her apartment. He then went on to testify that she wanted to borrow $40; that he gave her the $40; that he had sexual intercourse with her which she did not resist and that he then picked up the money, laughed and left. He further testified that she called him a name and stated that he would regret this. He decided to tell the truth about 4 o'clock on the afternoon of October 1 but didn't tell Deputy Thiel until three days later.
1 The defendant argues first that the evidence was insufficient to prove, beyond a reasonable doubt, that the intercourse which occurred was against the complainant's will. We do not agree. The complainant testified that she screamed, attempted to fight the defendant off, and that he used a screwdriver in the attack upon her. The defendant testified that she voluntarily consented to the intercourse in return for a loan of $40. The discrepancy in the defendant's story is obvious. Upon two occasions after his arrest he stated that he did not have intercourse with the complainant but finally admitted it in his third statement. Without going into the details of the testimony of the parties, and the witnesses to whom the complaining witness made her complaint, it is obvious that the jury chose to believe the complaining witness from the evidence adduced rather than the conflicting statements of the defendant. It has been so frequently stated that this court will not substitute its judgment for that of the jury in such a situation that no citation is necessary.
The second argument is that it was error to allow testimony as to the details of the complaints made by the victim shortly after the rape occurred. The first testimony pointed to by the defendant was the complaining witness' statement to Mrs. Rivera. In answer to a question as to whether the complaining witness gave a description of the alleged rapist, Mrs. Rivera stated:
"Yes, that was later on when I asked when my husband was outside, I asked her, you know, what the person looked like. And she gave me the description."
That is the substance of the details of the complaint objected to by the defendant. This statement was made a few minutes after the rape occurred. The defendant also argues that it was improper for Sergeant Heine to testify that:
"She told me that she knew who the offender was. She knew who had raped her. * * * I proceeded to ask her who it was and she said that it was the man that lived in the upper ...