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People v. Dorff





APPEAL from the Circuit Court of La Salle County; the Hon. WILLIAM P. DENNY, Judge, presiding.


Rehearing denied December 4, 1979.

On September 10, 1977, defendant was charged by information with rape, aggravated battery and attempt murder. After a jury trial in the Circuit Court of La Salle County, defendant was found guilty of rape and aggravated battery, but was acquitted on the attempt charge. Defendant was sentenced to concurrent terms of 8 to 24 years on the rape conviction and 3 to 9 years on the aggravated battery conviction.

Because of the nature of the issues presented on review, we can omit a detailed account of the facts comprising the crimes charged. The evidence was sufficient to establish that on September 7, 1977, defendant picked up Cindy Steele at a Princeton truck stop and drove her to a secluded rural area where he raped her twice, beat her with his fists, kicked her in the head with his steel-toed shoes and choked her to unconsciousness. Defendant admitted having sex with the victim, but claimed it was with her consent.

Prior to trial the State made a motion in limine to preclude defendant from introducing any evidence of the victim's prior sexual activity or reputation for chastity. The motion was granted based on section 115-7(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1978 Supp., ch. 38, par. 115-7(a)), which provides:

"In prosecutions for rape or deviate sexual assault, the prior sexual activity or the reputation of the alleged victim is inadmissible except as evidence concerning the past sexual conduct of the alleged victim with the accused."

Section 115-7 was enacted and became effective on January 4, 1978, after the crime in question was alleged to have occurred, but before the trial of the case commenced. Defendant's first contention on appeal is that application of the statute to the instant case violated the ex post facto provisions of the United States and Illinois constitutions. We do not agree.

It is clear that prior to enactment of section 115-7, evidence of a rape victim's reputation for chastity was admissible if the defendant raised the defense of consent. (People v. Allen (1919), 289 Ill. 218, 124 N.E. 329; People v. Fink (1978), 59 Ill. App.3d 51, 374 N.E.2d 1311.) Section 115-7 changed the law in this regard and prohibited admission of reputation evidence which would have been admissible at the time the rape in this case occurred.

"It is settled, by decisions of this court so well known that their citation may be dispensed with, that any statute which punishes as a crime an act previously committed, which was innocent when done, which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto." (Beazell v. Ohio (1925), 269 U.S. 167, 169-70, 70 L.Ed. 216, 217, 46 S.Ct. 68.)

However, not every alteration of the law existing at the time the offense occurred is barred as ex post facto.

"[A]lterations which do not increase the punishment nor change the ingredients of the offense or the ultimate facts necessary to establish guilt, but, leaving untouched the nature of the crime and the amount or degree of proof essential to conviction, only removes existing restrictions upon the competency of certain classes of persons as witnesses, relate to modes of procedure only, in which no one can be said to have a vested right, and which the State, upon grounds of public policy, may regulate at pleasure. Such regulations of the mode in which the facts constituting guilt may be placed before the jury, can be made applicable to prosecutions or trials thereafter had, without reference to the date of the commission of the offense charged." Hopt v. Utah (1884), 110 U.S. 575, 590, 28 L.Ed. 262, 269, 4 S.Ct. 922; People v. Anderson (1973), 53 Ill.2d 437, 292 N.E.2d 364.

By a motion to add authority, defendant has cited two Illinois cases and the statutory construction act (Ill. Rev. Stat. 1977, ch. 131, par. 4), which provides that no new law shall be construed to repeal, or affect in any way, a former law as to any right accrued under the former law, save only that the proceedings after the new law takes effect shall conform to the laws in force at the time of such proceedings. In People v. Anderson, one of the cases defendant cited, the supreme court held that the defendant had no "accrued right" to be discharged under the 120-day "speedy trial" statute until after the 120-day period had expired, and therefore the new 160-day limitation period, which took effect while she was waiting trial, was properly applied to deny her discharge. In discussing the constitutional prohibition against ex post facto laws, Justice Schaefer, speaking for the court, stated:

"The new provision did not make criminal an act that was innocent when done; it did not increase the punishment for a previously committed offense; and it did not alter the legal rules of evidence in order to convict the defendant. Nor did the new provision deprive the defendant of any substantive right or defense available to her at the time of the offense." (53 Ill.2d 437, 441, 292 N.E.2d 364, 366.)

The above statement was quoted with approval by this court in People v. Myers (1977), 44 Ill. App.3d 860, 866, 359 N.E.2d 197, 200. Although both Anderson and Myers imply that an alteration of "the legal rules of evidence in order to convict" cannot be applied retroactively, we construe that phrase to refer to a substantive change in the evidence needed to convict for the particular ...

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