APPEAL from the Circuit Court of Clinton County; the Hon.
FRANK G. SCHNIEDERJOHN, Judge, presiding.
MR. JUSTICE HARRISON DELIVERED THE OPINION OF THE COURT:
Appellant Larry L. Luigs appeals from a decision rendered in the Fourth Judicial Circuit of Clinton County, Illinois on October 5, 1979. He was convicted and sentenced to 15 years imprisonment for the crime of rape, to be served concurrently with a 10-year term for indecent liberties with a child. (Ill. Rev. Stat. 1979, ch. 38, pars. 11-1 and 11-4(a)(3).) The State proceeded against 40-year-old Luigs on the accountability theory. (Ill. Rev. Stat. 1979, ch. 38, par. 5-1.) His co-assailant Gary Polley was tried separately. (Cause No. 79-486.) Luigs cites several errors on appeal. We affirm the trial court's decision.
The record establishes that on May 10, 1979, the 12-year-old victim saw the defendants Larry Luigs and Gary Polley in the street outside her home. Recognizing them as fellow residents of the Deerwood Trailer Park in Centralia, she engaged in conversation with them. At Polley's request, she accompanied them into a wooded area near the trailer park. When the men's intentions became clear, the girl stated her desire to return home. Instead, the defendants forced the girl to the ground, where Luigs cut off her clothing. He held the knife to her throat and masturbated, while Polley kissed and fondled her breasts. Polley then had sexual intercourse with her. The victim testified that she screamed several times during the course of the attack. This was corroborated by members of the Harting family who lived nearby and with whom she sought refuge.
• 1 Appellant assigns several points of error for our review. First, we will address his venue challenge. As the court stated in People v. Massarella (1980), 80 Ill. App.3d 552, 561, 400 N.E.2d 436:
"Venue, like other facts necessary to prove the commission of an offense, may be established by circumstantial evidence."
Testimony in the record locating the scene of the crime by street address or by reference to other outstanding landmarks is sufficient circumstantial evidence to establish venue. (People v. Pride (1959), 16 Ill.2d 82, 87-89, 156 N.E.2d 551.) In the past, this court has taken judicial notice of the location of county boundary lines in order to determine that venue was established. (People v. Stoafer (1959), 112 Ill. App.2d 198, 302-04, 251 N.E.2d 108.) Having reviewed the record and found sufficient evidence, we hereby take judicial notice of the fact that Harting Drive lies in the city of Centralia, that Harting Drive is located a short distance from Deerwood Trailer Park, and that the entire area in question is situated within the county of Clinton in Illinois.
• 2 Next, appellant charges that the trial court erred in denying his motion to dismiss the count of rape. He maintains that the doctrine of nonmutual collateral estoppel prevents his being convicted under an accountability theory for the offense of rape when, in a separate trial, his co-defendant was convicted of attempt to commit rape. We can dispense with appellant's charge by consulting the statute which expressly authorizes such a conviction. Section 5-3 of the Illinois Criminal Code (Ill. Rev. Stat. 1979, ch. 38, par. 5-3) provides:
"A person who is legally accountable for the conduct of another which is an element of an offense may be convicted upon proof that the offense was committed and that he was so accountable, although the other person claimed to have committed the offense has not been prosecuted or convicted, or has been convicted of a different offense or degree of offense, or is not amenable to justice, or has been acquitted."
The Illinois courts> have consistently applied section 5-3. See People v. Ruiz, where the court held that the defendant's conviction for murder could stand even though his co-defendant had pleaded guilty to involuntary manslaughter in a prior proceeding. People v. Ruiz (1979), 78 Ill. App.3d 326, 396 N.E.2d 1314; see People v. Kijowski (1978), 61 Ill. App.3d 809, 377 N.E.2d 1324.
Appellant challenges the application of section 5-3 on constitutional grounds. These same constitutional concerns are addressed in the recent Supreme Court case, United States v. Standefer (1980), 447 U.S. 10, 64 L.Ed.2d 689, 100 S.Ct. 1999. In Standefer the court construed 18 U.S.C. § 2 (1976), the Federal statute similar to section 5-3, which authorizes prosecution of an aider or abettor after the principal has been acquitted. Pointing out that at least 34 States have statutes effectively identical to 18 U.S.C. § 2, the court adhered to the rationale behind those statutes. It agreed that all participants in a crime are "principals", that they must be tried and sentenced accordingly, and that "the fate of the other participants is irrelevant." (Standefer, 447 U.S. 10, 20, 64 L.Ed.2d 689, 698, 100 S.Ct. 1999, 2006.) The court effectively rejected the application of the nonmutual collateral estoppel theory. It explained that, although the double jeopardy clause of the fifth amendment was designed to prevent citizens from being tried twice for the same crime, the clause could not insure constitutional protection for a defendant who had never actually been put in jeopardy.
The Indiana Court of Appeals, Third District, disposed of this issue in similar fashion. (Williams v. State (Ind. App. 1980), 406 N.E.2d 263.) The defendant Williams drove the car from which his co-assailant allegedly fired several fatal shots. He challenged his conviction for reckless homicide on the grounds that his co-assailant was acquitted of murder charges in a previous trial. Williams argued that, since his participation amounted to that of an accessory, "even-handed justice" precluded his prosecution and conviction of the crime for which his principal had been exonerated. (Williams, 406 N.E.2d 263, 264.) The Indiana court, relying on Standefer and on Indiana's equivalent of section 5-3, held that Williams' conviction was not barred by the acquittal of his co-defendant. The doctrines of collateral estoppel and double jeopardy are safeguards which only apply where the same defendant might be tried twice for the same crime. The court reminded Williams that he had been tried only once. Applying this same logic, we hold therefore that the trial court did not err in denying appellant's motion to dismiss the count of rape.
Further, as emphasized in Standefer, criminal cases present different policy considerations than civil cases. The Supreme Court quoted from the court of appeals opinion which it was affirming:
"The public interest in the accuracy and justice of criminal results is greater than the concern for judicial economy professed in civil cases and we are thus inclined to reject, at least as a general matter, a rule that would spread the effect of an erroneous acquittal to all those who participated in a particular criminal transaction." 447 U.S. 10, 25, 64 L.Ed.2d 689, 701, 100 S.Ct. 1999, 2008.
These public policy concerns provide even greater justification for our denying appellant's second assignment of error.
• 3 Next appellant contends that the State failed to prove beyond a reasonable doubt that sexual intercourse occurred. Sexual intercourse is defined as "any penetration of the female sex organ by the male sex organ." (Ill. Rev. Stat. 1979, ch. 38, par. 11-1(b).) Appellant claims that the evidence does not support a finding that such penetration took place. The State maintains that this determination, a question of fact for the ...