APPEAL from the Circuit Court of Rock Island County; the Hon.
ROBERT J. HORBERG, Judge, presiding.
MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant, Robert Lee Mays, was found guilty of rape. Defendant was charged by information with rape in that he was alleged to have had forcible sexual intercourse with Vicki Dahlstrom, a female who was not his wife, on July 6, 1978. At trial Dahlstrom testified that she had met Mays for the first time in a bar on the evening of July 5, 1978. When the bar closed at 1 a.m., she agreed to give him a ride to another bar a few blocks away. Dahlstrom testified that when they pulled into the parking lot of the bar, defendant grabbed the car keys, beat her, and raped her.
Defendant testified that while he and Dahlstrom had been at the first bar they had talked about his obtaining some "dope" for her. Defendant testified he had had no intention of getting her any "dope" but was conning her, intending to simply take her money. He stated that when they got to the parking lot of the second bar, Dahlstrom stated she wanted the drugs. She gave defendant about $200. She then said she wanted the money back, and he hit her. He also testified that he had known her prior to the incident.
Other witnesses also testified for the State and the defense. After both sides had rested, a jury instructions conference was held. The defense tendered an instruction for battery, arguing that battery was a lesser-included offense of rape. The State objected to the instruction, contending it was not a lesser-included offense. The trial court sustained the objection and refused to instruct the jury on the offense of battery.
After the conclusion of the jury instructions conference, the cause proceeded to closing arguments by counsel. Stenographic note taking of the closing arguments was waived by counsel in lieu of a tape recording of these arguments. However, the tape recorder malfunctioned and no record of the closing arguments exists.
On appeal, defendant raises two issues: (1) whether or not the court's refusal to issue the tendered battery instruction was reversible error; and (2) whether the record on appeal is insufficient for an adequate review of defendant's allegations of prosecutorial misconduct during closing argument.
We hold that the failure to give the tendered battery instruction is reversible error. In People v. Pettus (1980), 84 Ill. App.3d 390, 405 N.E.2d 489, the court held that battery is a lesser included offense of attempt (rape), stating that the charge of attempt (rape) includes acts sufficient to sustain a charge of battery. By proof of the greater offense, the lesser is necessarily established. Attempt (rape) is a lesser included offense of rape. Since battery is a lesser included offense of attempt (rape), then it must of necessity be a lesser included offense of rape.
In People v. Houck (1977), 50 Ill. App.3d 274, 365 N.E.2d 576, the court held that "[a]s an abstract principle, battery may be viewed as a lesser included offense of rape * * *." The basis for this statement is found in the definitions of battery and included offense. The Illinois Criminal Code of 1961 defines battery as:
"(a) A person commits battery if he intentionally or knowingly without legal justification and by any means, (1) causes bodily harm to an individual or (2) makes physical contact of an insulting or provoking nature with an individual." (Ill. Rev. Stat. 1977, ch. 38, par. 12-3.)
Included offense is defined as:
"`Included offense' means an offense which (a) Is established by proof of the same or less than all of the facts or a less culpable mental state (or both), than that which is required to establish the commission of the offense charged, * * *." (Ill. Rev. Stat. 1977, ch. 38, par. 2-9.)
As is readily seen, the same facts that will establish rape will of necessity establish battery.
In Houck the court held the defendant's theory of defense precluded the possibility of battery as a lesser-included offense. There the defendant admitted having had intercourse with the complainant but had raised the defense of consent. Thus, under the defendant's theory, if the complainant had consented, then defendant was not guilty of battery either.
That is not the situation in the case at bar. In the case at bar, defendant did not admit to having had intercourse with the complainant but instead claimed to only have hit her. This situation is directly analogous to the situation in People v. Smalley (1976), 43 Ill. App.3d 600, 357 N.E.2d 93. In Smalley the defendant was charged with raping the complainant after having intimidated her. The defendant contended that although he had intimidated her, he had not had intercourse with her. The defendant was found not guilty of rape and guilty of intimidation as a lesser-included offense. On appeal, the court held that where the defendant is charged with having achieved rape by intimidation, then the crime of intimidation is a lesser included offense. By analogy, in the instant case, ...