APPEAL from the Circuit Court of Cook County; the Hon. DWIGHT
McKAY, Judge, presiding.
MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
After a bench trial, defendant Robert Sprouse was convicted of attempt rape and indecent liberties with a child (lewd fondling) and was sentenced to a term of 12 years' imprisonment. Defendant appeals, contending that (1) he was not proven guilty beyond a reasonable doubt because complainant's testimony was incredible, was not clear and convincing and was not sufficiently corroborated; (2) he did not receive adequate representation by counsel; (3) he was denied his right to a fair trial when the trial court committed certain alleged errors; and (4) pursuant to section 5-6-1(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005-6-1(a)), the trial court abused its discretion by denying him probation.
The complainant testified that on June 24, 1979, because complainant's mother was at that time hospitalized, she was staying with Anna Santana, in Calumet City, Illinois. She spent the night of June 24, 1979, with Santana's neighbor, Deborah Dial. Dial's uncle, defendant Robert Sprouse, was also staying at Dial's home. On the night of June 24, 1979, complainant slept fully clothed on the floor in Dial's mother's room. Dial also slept in that room. Complainant woke up on June 25, 1979, at about 9 a.m. Dial was still sleeping. Complainant went into the front room, sat on a couch and watched television. No one else was home. Defendant came into the house at about 9:15 a.m., carrying a bag containing whiskey and beer. Defendant sat in a chair in the front room and told complainant to put the whiskey and beer away. Complainant put them both in the refrigerator and returned to the couch in the front room. Defendant came over to complainant, sat next to her on the couch and then grabbed her feet and put her on his lap. Defendant next carried complainant into a second bedroom, put her on the bed and sat beside her. Complainant testified that during this time she was screaming and hollering. Defendant responded, "Shut up or else I'll kill you."
Defendant told her to unbutton her jeans. When she did not do so, defendant unbuttoned them. Defendant then put his hand inside her underwear and attempted to insert his finger into her vagina. Complainant heard someone come into the house and she started hollering. Defendant looked into the living room and kicked the bedroom door shut with his foot.
Defendant then told complainant to take off her pants. When she did not do so, defendant pulled her jeans and underwear down to her feet. Complainant testified that she was screaming and hollering during the time defendant was pulling off her pants. She stopped after defendant told her to "Shut up." Defendant then unzipped his own pants and got on top of complainant, who was on her back. Defendant stuck his penis near complainant's vagina and was "humping" for 10 to 20 minutes. Defendant then rolled over. Complainant jumped up, pulled her pants on, zipped them up and ran out the door. She ran into the kitchen for a drink of water because she was "hot and sweaty." Complainant then ran through the dining room into the front room, where Candice Shipley was sitting on the couch. Complainant was crying. Shipley asked complainant what happened and complainant pointed to the bedroom where defendant was. Complainant then ran out of the house and went to Anna Santana's house. Complainant ran to Santana and hugged her. The police arrived at Santana's home and complainant was taken to St. Margaret's Hospital, where she was examined.
During cross-examination, complainant stated she was 11 years old at the time this incident occurred and weighed 80 pounds. Defendant had been living in Dial's house for about a week or so prior to the incident. Complainant had slept at Dial's house on several previous occasions. Defendant had been there on two or three of these occasions. Complainant and defendant had "horseplayed" more than twice. Defendant had pinched her cheek. These incidents of "horseplay" had occurred when Dial and some of her friends were present. The door to Dial's bedroom remained open after complainant left the room to watch television.
Complainant stated that she did not know what the term "masturbation" meant. Complainant stated that she did know what "playing with oneself" meant. Complainant stated she had not "played with herself" on the morning of the incident. She also stated that she had not engaged in sporting activities, ridden a bike or had any accidents on the morning of the incident. She had not injured herself on the end of the couch.
Defendant had slept that night on the couch in the front room. Complainant did not know when he went to sleep. He was gone when she got up in the morning.
Anna Santana testified that she was taking care of complainant on June 24, 1979, because complainant's mother was in the hospital. Complainant spent the night of June 24, 1979, at Dial's home after receiving Santana's permission to do so. At approximately 11:30 a.m. on June 25, 1979, complainant ran into Santana's home crying and hugged Santana. Complainant was hysterical. Complainant stated to Santana, "Bobby raped me." Candice Shipley then telephoned Santana from the Dial home. Shipley was concerned about complainant because complainant had run out of the bedroom and out of the Dial house crying. After speaking with Shipley, Santana continued her attempts to calm complainant. Santana then telephoned Dial and asked if defendant was there. Santana said to Dial, "What's going on? [Complainant] just said that Bobby raped her." Following this conversation, Santana called the police. Complainant was still crying. Santana and a detective took complainant to St. Margaret's Hospital.
During cross-examination, Santana stated she lived next door to Dial and that their houses were about 20 feet apart. Complainant was bruised on her arms and neck. Complainant told Santana that defendant had come in "drunk" while she was watching cartoons. Santana stated that prior to the incident complainant had not complained that she had hurt her vaginal area. Santana stated that complainant did not engage in sports.
Deborah Dial testified that complainant spent the night of June 24, 1979, at Dial's house. She stated that defendant was her uncle. At approximately 11:30 a.m. on June 25, 1979, Shipley woke Dial. Shipley appeared to be "shaken up" and was "stuttering," "get up, get up." Dial got out of bed and saw defendant lying on the bed in the other bedroom, which was unusual because defendant was never in that bedroom. Defendant's pants were undone. Dial told defendant to leave. He refused. Dial telephoned Santana and later received a call from Santana. The police eventually arrived at the Dial home and arrested defendant. When the police arrived, an officer instructed defendant to zip up his pants.
The bedroom Dial slept in that night was about 30 feet from the bedroom that defendant was in that morning. Dial's bedroom door was open while she slept.
Dr. Jagdish Muzumdar testified that he examined complainant at approximately 12:30 p.m. on June 25, 1979, at St. Margaret's Hospital. The doctor noted that complainant had a bruise on her left vulva. It was Dr. Muzumdar's opinion that it was possible that that bruise was caused by the thrusting of an erect male penis on the outer lip of her vagina or by a man's finger manipulating her vaginal area. The doctor characterized complainant's case as a sexual assault. The doctor testified that complainant told him she had three similar sexual assaults in the last one year. Complainant had told the doctor that on one occasion somebody had tried to put a hand down her pants and another time someone had tried to show her his penis. With regard to these previous assaults, Dr. Muzumdar testified that complainant really did not understand what she was talking about. However, the doctor testified that complainant was "emotionally very stable." Dr. Muzumdar stated that complainant was given a penicillin injection and probencie to prevent any likelihood of a gonorrhea infection.
On recross examination, defendant's attorney asked, "Doctor, when you were asked a hypothetical question by the State's Attorney and you said this bruise could possibly been caused by an erect male penis, it could be caused by something else, couldn't it?" The prosecutor's objection that the question was beyond the scope of redirect examination was sustained. Defense counsel did not make an offer of proof or explain why this question was an important one.
Defendant Robert Sprouse testified that he had a few beers on the night of June 24, 1979, going into the morning of June 25, 1979. When he woke up on June 25, 1979, complainant was asleep on Dial's bedroom floor. He walked to Dempsey's tavern and had a beer. He bought a six-pack of beer and a half pint of liquor and returned to Dial's home. Complainant was asleep in the front room with her legs up. Defendant got a beer and sat drinking it on the couch. He then went to the bathroom and after getting another beer went into the bedroom and lay down. At this time complainant was still asleep. Defendant turned his back to the bedroom door and complainant came into the room. Complainant reached into his shirt pocket, as she had done before, to try to get a cigarette. "Just to fool with her," defendant pulled complainant across the bed while she was "kicking and stuff." Complainant said, "Bobby, let me up" and she left the room. Defendant lay down and slept until Dial woke him screaming, "Get out of bed, Bobby. [Complainant] said you raped her." Defendant got another beer and sat down on the couch trying to calm Dial.
Defendant described the "horseplay" he had engaged in with complainant. She would try to grab cigarettes out of his shirt pocket. Defendant stated that "the way [he] looked at it [he] didn't" attempt to have sexual intercourse with complainant and he did not attempt to fondle her. When asked if he attempted "to play with her vaginal area," defendant responded, "[I]f it was tipped, it was accidentally" because she had her clothes on. Defendant stated that he did not ask her to take off her clothes and denied that he ever stated he would hit her. Complainant never screamed, but had laughed when they were in the bed.
During cross-examination, defendant stated he did not touch complainant's vaginal area. He touched her arm when she reached across him and he responded by pulling her on top of him. Complainant became angry when Sprouse was holding her. He let her up the very second she asked him to. Defendant stated it was at least midnight when he went to sleep on the couch. The state's attorney asked defendant if he remembered telling the police that it was 4 a.m. when he went to sleep on the couch and defendant responded that he did not remember telling the police that. The state's attorney then asked defendant if he remembered first telling the police that complainant came by him when he was on the couch and later changed his story to say she came by him when he was in the bedroom. Defendant responded that he never did tell the police that complainant came by him while he was in the living room.
Defendant stated that complainant was mad when she left the bedroom. Defendant stated that when he was in the bedroom he was able to see Shipley on the couch in the front room through the open door. He also stated that when complainant was in the bedroom with him, the door was not closed. Defendant stated that his pants were unbuttoned and unzipped when Dial woke him.
The court found defendant guilty of attempt rape and indecent liberties with a child. At the hearing in aggravation and mitigation, the state's attorney reviewed the facts constituting the offenses for which defendant was convicted. The state's attorney urged the court to consider defendant's history of criminal conduct, which included convictions for breaking and entering, theft, transportation of stolen property and certain misdemeanors. The state's attorney noted that defendant was eligible for probation, but recommended a term of 12 years' imprisonment.
The defense attorney argued in mitigation that defendant had no past history of the type of conduct which now served as the basis for the indecent liberties with a child (lewd fondling) or attempt rape convictions and requested that defendant be granted probation.
Defendant stated that he was not guilty of any sexual offenses against complainant.
The court found that defendant was not probational due to his past record, his geographic proximity to complainant, the seriousness of the crime and ...