APPEAL from the Circuit Court of Macon County; the Hon. DONALD
W. MORTHLAND, Judge, presiding.
MR. JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
In this consolidated appeal, we are concerned with the following convictions of defendant Charles Hamilton and the concurrent sentences of imprisonment imposed thereon: 30 years each for rape and deviate sexual assault; extended terms of 60 years each for rape and deviate sexual assault; 15 years for attempt rape; 7 years for each of three convictions for burglary; and 5 years for each of two convictions of aggravated battery. These convictions were entered in three trials in the circuit court of Macon County and the sentences imposed in a joint sentencing hearing.
First, in a jury trial held January 17, 1979, in Macon County case No. 78-CF-527 (our case No. 15538), defendant was convicted of the attempt rape and aggravated battery of a young woman which occurred October 3, 1978, on a stairway in the city parking garage in downtown Decatur. Defendant does not contest the sufficiency of the evidence of which those convictions were based.
Then, in a jury trial on March 21, 1979, in Macon County case No. 79-CF-86 (our case No. 15537), defendant was convicted of the burglary of a Decatur day-care center and the rape and deviate sexual assault of a teacher there. Evidence was presented that at about 10:30 p.m. on January 29, 1979, defendant gained admittance to the center on the pretext that he had come to pick up a child for its mother. Once inside, defendant grabbed the teacher and led her into the bathroom where he forced her to perform fellatio and engage in sexual intercourse.
At trial, the complaining witness identified defendant as the man who attacked her and also identified a coat owned by defendant as definitely the one worn by her attacker. She further testified that a stocking cap shown to be owned by defendant was the same type of cap worn by the man who attacked her. Defendant testified that he had been at his girlfriend's house from around 11 a.m. until about 11:45 p.m. on January 29, 1979. This was corroborated in full by the testimony of his girlfriend and in part by that of her mother and sister.
Defendant contends that he was not proved guilty beyond a reasonable doubt because his identification by the complaining witness was not clear and convincing and did not overcome his alibi defense. He argues that her identification of him at trial was weakened (1) by discrepancies between her description of the clothing worn by her attacker and the coat and cap she identified at trial, (2) by her failure to give police a physical description of her attacker, and (3) because she positively identified defendant only after viewing two sets of pictures (a different picture of defendant appeared in each set) and seeing defendant in a lineup. Earlier, she had selected another man's photo from a set of pictures as having facial features similar to her attacker, but later after seeing the man in a lineup concluded he was not the culprit.
1-3 None of these arguments requires us to rule as a matter of law that her identification of defendant at trial was insufficient to overcome his alibi defense. Any discrepancies in her description of the clothing were minor. Her inability to describe any particular physical feature of her attacker does not destroy the credibility of her identification (see People v. McCall (1963), 29 Ill.2d 292, 194 N.E.2d 222). Her hesitation in positively identifying defendant does not necessarily show an inability to do so but might as likely show a desire not to identify the wrong man. All of these things were matters for the jury to consider in determining the credibility of this witness, but did not require an acquittal. People v. Harrison (1978), 57 Ill. App.3d 9, 372 N.E.2d 915.
Next, with respect to the March 21 trial, defendant contends that the court abused its discretion when it allowed the State to impeach him with his January 17, 1979, convictions for attempt rape and aggravated battery. He argues that the probative value of those convictions was slight because they did not directly bear on dishonesty, whereas their prejudicial effect was great due to their similarity to the offense for which he was being tried.
4 Although the members of this court are not unanimously in agreement that the doctrine of People v. Montgomery (1971), 47 Ill.2d 510, 268 N.E.2d 695, permits impeachment of a defendant in a criminal case by evidence of his timely previous commission of a felony not directly related to dishonesty, a majority of each panel passing upon the question has always so held. (People v. Warfel (1979), 67 Ill. App.3d 620, 385 N.E.2d 175; People v. Guthrie (1978), 60 Ill. App.3d 293, 376 N.E.2d 425; People v. Wright (1977), 51 Ill. App.3d 461, 366 N.E.2d 1058.) The similarity between the offenses for which the defendant was convicted and that for which he was on trial undoubtedly prejudiced him because of the likelihood that the jury would not limit their consideration to the issue of the defendant's veracity. On the other hand, Montgomery indicated that the more recent the conviction, the greater value it has for impeachment. Here the convictions were recent. The trial judge balanced the impeachment value of the convictions against the prejudice to the defendant. We do not deem that a breach of the requirements of Montgomery resulted from the admission of the evidence.
In a bench trial held April 20, 1979, in Macon County case No. 78-CF-527 (our case No. 15538), defendant was convicted of rape, deviate sexual assault, aggravated battery and two counts of burglary. These offenses occurred May 19, 1978, in the same city parking garage in downtown Decatur involved in the charges discussed earlier. With respect to these convictions, the State concedes that one of the burglary convictions should be reversed.
Defendant also contends that the aggravated battery conviction should be reversed because it was based on the same acts as the rape and deviate sexual assault. Multiple convictions are improper (1) where the offenses arise from the same physical act, or (2) if from multiple acts, where some of the offenses are, by definition, included offenses of others. (People v. King (1977), 66 Ill.2d 551, 363 N.E.2d 838.) The information here charged defendant with aggravated battery in that he committed a battery while in a public place of accommodation (Ill. Rev. Stat. 1977, ch. 38, par. 12-4(b)(8)), but did not specify the conduct which constituted the alleged battery. Evidence was presented that prior to the rape and deviate sexual assault and in a different area of the garage, defendant reached around the complaining witness and placed his hand over her mouth. This conduct could certainly be considered a battery (Ill. Rev. Stat. 1977, ch. 38, par. 12-3). The conviction of aggravated battery need not have been based on the same physical acts as the rape and deviate sexual assault convictions. Nor would the aggravated battery be an included offense of the others because the charge required proof of an additional element, that it occurred in a public place of accommodation.
Convictions from all three trials were consolidated for sentencing hearing. Defendant raises two issues with respect to the sentences imposed: (1) whether imposition of extended-term sentences for his April 20 convictions for rape and deviate sexual assault was proper, and (2) whether the trial court erred in imposing the maximum possible sentence for each conviction.
Section 5-8-2 of the Unified Code of Corrections provides, in part:
"Extended Term. (a) A judge shall not sentence an offender to a term of imprisonment in excess of the maximum sentence authorized by Section 5-8-1 for the class of the most serious offense of which the offender was convicted unless the factors in aggravation set forth in paragraph (b) of Section 5-5-3.2 were found to be present. Where the judge ...