APPEAL from the Circuit Court of Tazewell County; the Hon.
IVAN L. YONTZ, Judge, presiding.
MR. JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 8, 1981.
The defendant, Walter Davis, was charged by indictment with two counts of deviate sexual assault (Ill. Rev. Stat. 1979, ch. 38, par. 11-3(a)) and one count of indecent liberties with a child (Ill. Rev. Stat. 1979, ch. 38, par. 11-4(a)(3)). Following a trial by jury in the circuit court of Tazewell County, the defendant was convicted on all three counts. He was subsequently sentenced to the Department of Corrections to serve concurrent eight-year terms on each of the deviate sexual assault counts, and a four-year term on the indecent liberties count. The four-year term was also to be served concurrently. It is from his convictions as well as the sentences imposed that the defendant appeals.
The resolution of the various issues raised by the defendant on appeal necessitates a somewhat detailed recitation of the facts of this case. Michelle Allen, whose sexual molestation formed the basis of the defendant's indecent liberties conviction, was the first witness to testify for the State. Her testimony was substantially as follows.
On the evening of September 15, 1979, Michelle (age 12), her twin sister Tammy, and Chuck Helfers (age 16) went to the house of Joe Davis in Pekin, Illinois, where Helfers was to baby-sit for Davis' two children. When they arrived at the Davis home at approximately 9:30, no one was home. Subsequently, Joe Davis, his ex-wife Nancy, and the defendant arrived. Nancy is the older sister of Chuck Helfers. The defendant and Joe Davis are brothers. They were followed shortly by a man named Rick and his wife, Lynn.
During the evening, about midnight, the defendant, Helfers, and the Allen sisters left the Davis house for a pizza. When they returned, Joe Davis and his former wife had retired for the night and were sleeping in one of the two bedrooms located on the main floor of the house. The Davis' two children were sleeping in the second bedroom. Rick was sleeping in the attic on a mattress provided by Nancy Davis.
After eating the pizza, everyone still awake decided to go to bed. Lynn went upstairs to sleep with her husband. Michelle, with the defendant's help, placed a mattress on the dining room floor on which she, Tammy, and Helfers would sleep. This mattress was located directly behind a sofa which faced the living room. The defendant decided to sleep on the floor in the space between the mattress and the back of the sofa. Because the mattress was too small for three people, Michelle eventually decided to sleep on the couch. The time was approximately 1:30 a.m.
During the night, Michelle was awakened by someone lying next to her on the couch trying to pull her pants down. Although she could not see her assailant's face, she noticed that he was wearing blue jeans and a plaid long-sleeved wool shirt. Her assailant was unable to pull her pants completely off. However, he did manage to place his hand inside her pants and underwear and insert a finger into her anus. At this time Michelle took the assailant's hands out of her pants, told him to get off the couch, and as he did, kicked him. Immediately, the assailant got off the couch, and lay on the floor.
About five minutes later, she heard the same person who had assaulted her get off the floor, and open the door of a refrigerator that was located in the dining room. She sat up, and although she could not see his face in the light of the refrigerator, she did see the back of his head and recognized him as the defendant. The shirt and pants the defendant was wearing were the same as those worn by her attacker. She also noticed from a clock located on top of the refrigerator that the time was 3 a.m.
Michelle testified that some time later she heard some rubbing noises similar to the noise made by rubbing a hand across carpeting coming from behind the couch. These rubbing noises lasted only a short time. An hour or so later, she fell asleep, and awoke at approximately 8 a.m. When she awoke, the defendant was gone. She did not mention the incident to anyone until she told her sister about it later that day.
Chuck Helfers was the next prosecution witness. His testimony regarding the events of September 15, 1979, varied from Michelle's in a number of aspects. He stated that Joe and Nancy Davis had three children, not two (as Michelle testified), and also stated that the defendant slept not between the mattress and couch, but on the floor near the television set (which was placed near the front door). He further testified that throughout the evening the defendant was wearing blue jeans and a white T-shirt. In addition, according to Helfers, several of the people at the Davis house the night of September 15 smoked marijuana, although neither he nor the Allen sisters did.
The majority of Helfers' testimony related to the deviate sexual assault upon him. At approximately 3:30 a.m. Helfers felt someone rubbing his back. This person then rolled Helfers over, pulled down his pants and underwear, and fondled Helfers' penis. After several minutes, Helfers was turned over onto his stomach, and the assailant placed his penis in Helfers' anus. Although Helfers did not see his assailant's face, out of the corner of his eye he caught a glimpse of the person's hair and recognized it as belonging to the defendant. According to Helfers, the defendant subsequently ejaculated on his (Helfers') underwear, but there was no physical evidence to corroborate this testimony. After ejaculating, the defendant rolled Helfers over onto his back again and placed Helfers' penis in his mouth. During this entire 15-minute attack, Helfers did not cry out, scream or physically resist the defendant by pushing him off or striking him. Helfers testified that he did try to roll away from the defendant several times but admitted that his movements facilitated the removal of his pants and underwear. He stated that during the assault he pretended to be asleep and was afraid to do anything else at that time. Tammy Allen, who was on the mattress several inches away, did not awaken during the attack.
About 20 minutes after the assault, Helfers got up, checked the Davis children, and bathed. When he came out of the bathroom, the defendant was lying on the floor in front of the television set. Helfers sat in a chair until the defendant left the house at approximately 6 a.m. He did not tell anyone, including his parents, about the attack until that evening of September 16.
The final witness for the prosecution was Joseph Davis, the defendant's brother. He testified that the evening of September 16 he received telephone calls from both the mother of the Allen twins and Chuck Helfers' father informing him of the incidents that allegedly took place the previous night. The next morning Joe Davis confronted the defendant with these allegations. According to Joe Davis, the defendant was initially incredulous, but then began to cry and stated that he did not remember anything except touching the clothing of one of the twins. Subsequently, the defendant was notified that the police were looking for him, and turned himself in.
During the course of cross-examination, Joe Davis described his brother as being 28 years of age, approximately 5'8" in height, ...