Appeal from the Appellate Court for the Third District; heard
in that court on appeal from the Circuit Court of Rock Island
County, the Hon. Robert J. Horberg, Judge, presiding.
JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:
The defendant, Robert Lee Mays, was charged by information with rape. After a trial by jury, he was convicted and sentenced to 10 years in prison by the circuit court of Rock Island County.
On appeal, the defendant made two arguments: first, that the trial court erred in refusing his tendered jury instruction for the offense of battery, and second, that because the tape recorder used to record proceedings failed to operate during closing arguments he was effectively denied his right to appellate review on the issues arising from those arguments. In a split decision, the appellate court agreed with the defendant's first argument. (93 Ill. App.3d 352.) Holding that battery is an included offense of rape, which therefore must be instructed upon, it reversed the defendant's conviction and remanded the cause for a new trial. For reasons set forth below, we now reverse the appellate court and reinstate the judgment entered against the defendant by the circuit court.
The complaining witness testified that on the evening of July 5, 1978, she and a neighbor went in separate cars to a neighborhood tavern in Moline. There they met another friend and sat at the bar conversing and drinking. During the evening, she got up to go to the ladies' room, and when she returned she noticed the defendant speaking for a moment to her companions.
When her friends left at approximately 12:30 a.m., she remained at the bar to finish her drink. The defendant came up to the bar and sat with her. She had never seen him before that day, but assumed from what she had observed earlier that he was a friend of her neighbor. The two of them talked for a half an hour. When at 1 a.m. the manager announced the bar was closing, she got up to leave, and the defendant followed her outside, asking for a ride down the street to a nearby tavern which kept later hours. She agreed.
According to the complaining witness, when the two arrived in the parking lot of the second tavern, the defendant grabbed her car keys. When she tried to escape, he beat her until she was unconscious. She testified that when she regained consciousness, the defendant pulled off her clothes and raped her. He then ran from the car.
The defendant's story differed from the complaining witness'. He testified that he had known the complaining witness for some time. On the night of July 5, 1978, he saw her at the tavern and offered to buy drugs for her. He told the jury that he did not really intend to buy any drugs for her. He was only deceiving her and planning to take her money.
At his request, she drove him to a nearby tavern where, he told her, he could get the drugs. Before he would get them for her, however, he told her he needed to see her money. She gave him the money, and he counted about $190 to $200. When he attempted to leave the car with the money, she became suspicious and demanded it back. The defendant testified he then grabbed the complaining witness by the neck and hit her with the back of his hand. He fled with her money, but denied ever having raped her.
The defendant's major contention of error concerns the court's refusal of the instruction for battery he tendered. The refused instruction read, "A person commits the crime of battery who by any means knowingly or intentionally causes bodily harm to another person." No instruction for the type of battery defined as physical contact of an insulting or provoking nature (Ill. Rev. Stat. 1977, ch. 38, par. 12-3(a)(2)) was requested, and we do not decide whether had such an instruction been tendered in this case it would have been properly rejected. The defendant argues that battery is an included offense of the rape he was charged with, and that he was therefore entitled to an instruction on it.
Because the arguments of both parties turn on the concept of "included offense," our first task is to define this term. The Criminal Code of 1961 states in pertinent part, "`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.) The concept is employed in determining whether a party is entitled to an instruction for a crime other than the one charged. (See, e.g., People v. Cramer (1981), 85 Ill.2d 92; People v. Smalley (1976), 43 Ill. App.3d 600.) The definition of "included offense" does not indicate which of the following is determinative in deciding if a particular offense is an included offense of another: the abstract statutory definition of the greater crime; the greater crime as it is alleged in the indictment or other charging document; or the greater crime as its necessary elements are proved at trial. In People v. Cramer this court recently approved the use of the second test, while at the same time pointing out that the first test was seldom used and expressing no opinion on the propriety of the third test. Under the facts of this case, however, we reach the same result no matter which test is applied.
Applying the first test, we find that the Criminal Code of 1961 defines rape:
(a) A male person of the age of 14 years and upwards who has sexual intercourse with a female, not his wife, by force and against her will, commits rape. Intercourse by force and against her will includes, but is not limited to, ...