APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
L. SAMUELS, Judge, presiding.
MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
At the conclusion of a jury trial in the circuit court of Cook County, defendant David Sanchez was found guilty of rape (Ill. Rev. Stat. 1979, ch. 38, par. 11-1) and of indecent liberties with a child (Ill. Rev. Stat. 1979, ch. 38, par. 11-4). Judgment against defendant was entered on both offenses, but he was sentenced only for rape to a term of 10 to 30 years.
On appeal, defendant contends: (1) he was not proven guilty beyond a reasonable doubt; (2) the trial court committed reversible error by preventing him from testifying about his efforts to prevent his deportation to Mexico; (3) the trial court committed reversible error by inquiring into the numerical division of the jury after the jury had reported it was deadlocked; and (4) his sentence is excessive. Defendant also contends his conviction for taking indecent liberties with a child must be vacated because it was based on the same act as his rape conviction. The State has joined defendant in this contention and requests that we vacate the indecent liberties conviction and modify the judgment accordingly. See People v. Lilly (1974), 56 Ill.2d 493, 309 N.E.2d 1.
We vacate the indecent liberties conviction. We affirm the rape conviction and the sentence imposed for that offense.
The incident occurred in the afternoon of November 13, 1977. The victim was a 10-year-old who lived with her mother and six brothers and sisters in a home in Chicago Heights. At the time of the incident, the mother and some of the children had been out of town for two weeks but were due to return that day. During this two-week interval, defendant and his wife were staying at the home to care for the remaining children. Defendant's infant child was also staying at the home. Defendant and the victim's mother were long-time friends.
From the evidence presented at trial, the following was shown to have occurred.
At approximately 2 p.m. on the day of the incident, the only persons in the home were defendant, defendant's infant child, and the victim. The victim was in the living room watching television. The infant was asleep on the couch. Defendant was asleep on a bed in the only bedroom.
The victim decided to carry the sleeping infant to one of the beds in the bedroom. Upon doing so, defendant awoke and asked the victim to get him a glass of water. She did as requested and upon returning, she was grabbed by defendant and thrown onto a bed. Defendant removed his underwear, the only thing he was wearing, and then proceeded to lift the victim's dress above her waist and pulled off her underwear. The defendant pounced on top of the victim and went "up and down" on top of her and she felt something "cold and hard" inside her. The victim cried out and kicked at defendant to no avail.
While this was going on, the victim's mother returned from her trip. She came into the home and saw the bedroom door closed. She swung the door open and saw defendant on top of the victim. Defendant got up and the victim ran crying to her mother. The mother instructed the victim to get dressed and go out and wait in the car. The victim did as instructed. The mother immediately telephoned the police. The police arrived in less than a minute. They arrested defendant, who was getting dressed when they arrived.