Appeal from the Circuit Court of Jackson County; the Hon.
Richard E. Richman, Judge, presiding.
JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
Defendant, Joel F. Warren, was charged by information with two counts of deviate sexual assault. Following a bench trial, defendant was convicted on both counts and was sentenced to a term of six years in prison.
On appeal, defendant contends that the State did not prove him guilty of deviate sexual assault beyond a reasonable doubt. Specifically, defendant argues that the State failed to prove that the acts complained of were committed by force or threat of force or against the will of the complainant. Defendant further contends that he was denied due process of law when the court convicted him on the basis of an improper standard of guilt.
At the time of the incident, defendant, Joel Warren, was 30 years of age and was a student at Southern Illinois University. Complainant was 32 years of age and worked as a volunteer at Synergy, an organization located in Carbondale, Illinois.
Complainant testified that on the afternoon of July 1, 1980, she rode her bicycle to Horstman's Point, which overlooks the Carbondale City Reservoir in Carbondale. While complainant was standing alone at Horstman's Point, defendant approached her and initiated and engaged in a conversation with her. Although complainant did not know defendant, she responded to his conversation which was general in nature.
Complainant started to walk away from the lake in the direction of her bicycle which was at the top of the hill. While she walked up the hill, defendant continued talking as he walked alongside of her. Complainant testified that when she got on her bicycle defendant placed his hand on her shoulder. At this time, complainant stated, "No, I have to go now," to which defendant responded, "This will only take a minute. My girlfriend doesn't meet my needs." Defendant also told her that "I don't want to hurt you."
According to complainant, defendant then lifted her off the ground and carried her into a wooded area adjacent to the reservoir. Upon entering the woods, defendant placed complainant on the ground and told her to put her head on his backpack. Defendant then told her to take her pants down which she did part way. Defendant pulled her pants completely off and placed them underneath her. He then proceeded to pull up complainant's tank top shirt and began kissing her breasts and vaginal area. After he finished kissing complainant, defendant sat up and unzipped his pants and complainant performed an act of fellatio upon him.
At the completion of this second act, defendant gave complainant an article of clothing to wipe her mouth. Complainant then dressed and defendant picked her up again and carried her back to her bicycle. Defendant testified that complainant asked him, "Is that all?" to which he answered, "Yes."
Complainant got on her bicycle and rode to Synergy, where she spoke to a volunteer worker who referred her to the Women's Center in Carbondale. At the Women's Center, she spoke with Mary Kay Bachman, with whom she went to the Carbondale Police Department. Complainant related the incident to Officer William Kilquist, who testified that complainant appeared to be very upset. Officer Kilquist further testified that no formal report was prepared at the request of complainant.
On February 15, 1981, complainant saw defendant while she was jogging and reported him to the police as the man with whom she had sexual relations. Defendant was arrested at his home later that day by Officers Hunziker and Hawk of the Southern Illinois Police Department and charged with deviate sexual assault.
At the outset, we note that there are no significant inconsistencies in the testimony of the two parties. Instead, we are faced with facts which are susceptible of more than one reading. Defendant admits that he performed the acts upon which the deviate sex charges are based. He contends, however, that the acts complained of were performed without force or threat of force.
• 1 Reviewing courts> are especially charged with the duty of carefully examining the evidence in rape or deviate sexual assault cases and it is the duty of the reviewing court to reverse the judgment unless the evidence is sufficient to remove all reasonable doubt of defendant's guilt and create an abiding conviction that he is guilty of the crime charged. (People v. Anderson (1974), 20 Ill. App.3d 840, 847, 314 N.E.2d 651, 656.) The ultimate issue presented for review in the instant case is whether the State satisfactorily proved that the acts complained of were committed by force or threat of force as required to constitute deviate sexual assault.
• 2, 3 To sustain a conviction for deviate sexual assault, there must be evidence that defendant, by force or threat, compelled another to perform or submit to any act of deviate sexual conduct. (People v. Cornes (1980), 80 Ill. App.3d 166, 172, 399 N.E.2d 1346, 1350.) There is, however, no definite standard which fixes the amount of force which is required to sustain the charge of rape or deviate sexual assault. Each case must be examined on the basis of its own particular facts. People v. Smith (1965), 32 Ill.2d 88, 203 N.E.2d 879.
• 4 In the present case, the State contends that defendant coerced complainant into engaging in deviate sexual acts by threatening to use physical force. The State maintains that this threat was conveyed by defendant's statement that "I don't want to hurt you," the implication being that he would hurt her if she did not comply. Although this interpretation has some merit, we do not believe that it is the most reasonable conclusion drawn from the facts. Defendant did not make the above statement while brandishing a weapon or applying physical force, a circumstance which would support the State's ...