APPEAL from the Circuit Court of McDonough County; the Hon.
U.S. COLLINS, Judge, presiding.
MR. JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
Rehearing denied August 15, 1979.
Defendant James F. O'Brien appeals from a conviction in the Circuit Court of McDonough County of the offense of attempt deviate sexual assault. (Ill. Rev. Stat. 1977, ch. 38, pars. 8-4(a), 11-3(a).) After conviction in the jury trial, the court sentenced the defendant to a five-year term of probation and ordered him to pay a fine of $5,000. Two issues are raised by the defense on this appeal: (1) whether the defendant was proven guilty beyond a reasonable doubt and (2) whether the court abused its discretion when it refused to give an instruction tendered by the defense.
The record discloses that at trial only two persons testified, the complainant and the defendant. The complainant, John Hawkes, a Western Illinois University student, testified that on the night previous to the assault he was studying in his dormitory room for an exam the next morning. During the night some other students came into his room, and among them was the defendant James O'Brien, who was known to Hawkes and who also lived in the dormitory. Hawkes testified that he and O'Brien were studying late into the night. The others left. Hawkes fell asleep around 6 a.m. but awoke around 6:45 a.m. to see the defendant standing over him. Hawkes said that the defendant then offered to perform fellatio with Hawkes. Although Hawkes said he at first thought it was a joke, O'Brien insisted he was serious. He told Hawkes that he had better do what he was told. Hawkes said O'Brien then put his forearm on Hawkes' throat, and while Hawkes was still lying in bed, yanked down Hawkes' pants to his knees, and began fondling him. Hawkes testified that with the forearm on his throat he had difficulty breathing. He said he struggled to get loose, but he was unsuccessful, and that O'Brien did not heed his requests to stop. Hawkes did manage to turn over onto his stomach. At this juncture he said O'Brien informed Hawkes that he could go either way, and then proceded, after pulling his own gym shorts down, to mount Hawkes' backside. There was apparently no penetration, but O'Brien did ejaculate on Hawkes' back. Hawkes said O'Brien then told Hawkes not to say anything and left. Hawkes went to the bathroom at the dorm, washed his face and came back to his room. He waited almost a half hour to shower because O'Brien was in the shower area. After showering, Hawkes had breakfast and went to his 8 a.m. final exam in American literature. Immediately after the final, he went to talk with his resident counselor about the morning sexual assault by O'Brien. An appointment with the head counselor was arranged for the afternoon as well, and after that meeting, Hawkes also met with a member of the office of public safety. A criminal information was subsequently filed.
The defendant James O'Brien took the stand in his own behalf. O'Brien stated that he and Hawkes both fell asleep in Hawkes' dorm room and that he awoke at about 7 a.m. He stated that Hawkes was still asleep and that he left the room and went to his own room across the hall. He denied any contact with Hawkes at all on the morning of the alleged assault. This was the sum of the entire testimony offered during the jury trial.
At the instruction conference, the defense tendered an instruction which stated:
"The uncorroborated testimony of a complaining witness must be clear and convincing."
The trial judge denied the instruction. Closing argument to the jury and jury instructions were completed. The jury returned a verdict of guilty of attempt deviate sexual assault. The defendant appeals from the conviction.
1, 2 The first argument by the defense is that the defendant was not proven guilty beyond a reasonable doubt. In support of this it is argued that there exist inconsistencies in the complainant's testimony and that there was no evidence of the use of sufficient force. The record shows that Hawkes' testimony was that force was used. We agree with the defense that the standards to be applied are similar to those in rape cases. Where the only evidence of the commission of an act is the complainant's testimony, then that testimony must be corroborated, or it must be clear and convincing. (People v. Secret (1978), 72 Ill.2d 371, 376, 381 N.E.2d 285.) The supreme court, in Secret, also noted the well-established rule "that it is primarily the function of the trier of fact to pass upon the credibility of witnesses and the weight of the evidence." (People v. Secret, 72 Ill.2d 371, 376.) It must also be shown that the act involved force, against the will of the complaining witness.
"And while useless or foolhardy acts of resistance are not necessary, if the [complainant] has use of [his] faculties and physical powers, the evidence must show such resistance as will demonstrate that the act was against [his] will." People v. DeFrates (1965), 33 Ill.2d 190, 194-95, 210 N.E.2d 467.
Hawkes' testimony was clear and apparently believed by the jury. There was nothing shown as to any possible reason Hawkes might have had to fabricate such story and it is not the type of story one ordinarily wishes to spread around a campus. As to the lack of bruises or torn garments, the force of a forearm across the neck, especially when applied to someone just awakening and lying supine on a bed, would be sufficient to adequately immobilize a victim and lessen his ability to resist. Hawkes testified that because of the pressure being applied to his throat he was having difficulty breathing. Even then he did manage to struggle and to turn over onto his stomach. O'Brien had warned him to do as he was told, and this threat, coupled with the forearm on the throat, explains any failure of the victim to cry out. Nor do we find inconsistency in the fact that, after the assault, Hawkes showered, ate and then went to his final exam. He had not been physically injured in the attack and may very well not have known how to proceed. There was also O'Brien's implied threat in telling Hawkes not to tell anyone. We note, too, that immediately after taking the exam he contacted his residence advisor at the dormitory and informed him of the incident. Further complaint was also made the same day to the head counselor and the office of public safety. We conclude that under all the circumstances, the nature and timing of the attack, the threat not to tell anyone, and the existence of the final exam, that the relatively minor lapse of time between the attack and initial complaint is amply explained.
3 Reliance by the defense upon People v. DeFrates (1965), 33 Ill.2d 190, 210 N.E.2d 467, and People v. Symons (1961), 23 Ill.2d 126, 177 N.E.2d 185, given the facts in the instant case, is misplaced. In DeFrates (involving rape), where intercourse was admitted, and the sole question was force and the lack of resistance, there was substantial evidence of voluntariness in the record. There is none here. In Symons (another rape case), the failure to make a complaint for over 14 hours, without any good excuse, was the significant factor in reversing a rape conviction. In the instant case, there was prompt complaint and any delay was understandable in light of all the circumstances. As stated earlier, it is primarily the function of the finder of fact to determine credibility and to weigh the evidence. Here, the jury was adequately instructed on the reasonable doubt standard, which was heavily stressed by defense counsel in closing argument and there was sufficient evidence to support the jury finding of guilt beyond a reasonable doubt.
4 As to the second issue, the question of the jury instruction stating that the testimony of a sole complaining witness in a sex attack case must be clear and convincing, we find no reversible error. The jury was instructed on the standard to be applied to the evidence presented to them. Illinois Pattern Jury Instructions, Criminal, No. 6.07 (1968) (hereinafter cited as IPI Criminal), which details the elements of the offense and states that each element must be proven beyond a reasonable doubt, was given to the jury. IPI Criminal No. 2.03, which states that the defendant is presumed innocent and that the State must prove him guilty beyond a reasonable doubt, was given to the jury. Also given was IPI Criminal No. 1.02, which informs the jury that in assessing credibility, they can consider the manner of the witnesses while testifying, their interest, their bias, prejudice and reasonableness of their testimony. We find that the instructions adequately covered the jury's responsibilities with respect to assessing credibility and weighing the evidence. The denied instruction, a non-IPI instruction, would have unduly drawn attention to particular evidence. (People v. Sledge (1966), 71 Ill. App.2d 285, 218 N.E.2d 845.) We find that for the foregoing reasons, the trial court acted within proper scope of its discretion when it refused to give the non-IPI instruction tendered by the defense.
For the reasons stated, therefore, since we find no reversible error, the judgment of the Circuit Court of ...