Appeal from the Circuit Court of Winnebago County; the Hon.
Harris H. Agnew, Judge, presiding.
PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
Following a jury trial, Bradley Witte was convicted of rape (Ill. Rev. Stat. 1981, ch. 38, par. 11-1) and sentenced to six years' imprisonment. He appeals, contending that he was not proved guilty beyond a reasonable doubt. Alternatively, he contends that he was denied his right to an impartial jury and that evidentiary rulings deprived him of a fair trial.
The complaining witness, Cornelia Davis, was 26 and had been acquainted with the defendant, who was 27, for a little more than a year at the time of the incident. She testified that they lived in adjoining apartment complexes on the second floor, and had dated for about two weeks at the end of June and beginning of July 1980. They had been "intimate" previously, the last time being in the fall of 1980. The defendant had terminated the relationship which, Davis said, upset her.
On Friday, May 22, 1981, the complainant went unaccompanied to a bar at approximately 10 p.m. and stayed until closing time, at about 12:30 a.m. She drank four "doubles" consisting of vodka and grapefruit juice at the bar and became intoxicated. She asked around if there was a party after closing time and met defendant, who said that he did not know of any party but that she could come over to his apartment for a while. She gave him a "short" hug and a "peck" on the cheek because they were friends. She bought a six-pack of beer and they went to defendant's apartment.
In defendant's apartment she and the defendant sat on the couch after defendant turned on some music. He started to kiss her but she pushed him away. There was "minor" struggling which broke off when she went to the bathroom. She then went to leave, and was outside the defendant's apartment about to close the door behind her when the defendant, who had been outside relieving himself, "pushed" her back inside and told her to sit down. He forced his body onto hers, by which she meant that he was rubbing his genitals against her body. Both were then fully clothed. She struggled and screamed, at which point defendant started to hurt her by tightening his grip on her wrists. She struck defendant on his head with her fist, defendant got "very angry," flipped her over and got on top with his hands on her throat, strangling her. She pushed but could not breathe. Defendant released her throat, but started hitting her on her chest and across her face with the back of his hand, but not with his full force. He said he loved her, then said that he couldn't stand her. She was afraid the defendant would choke her again, and "was actually scared that he was going to kill" her; and "to get out of it" she went into his bedroom with him. The defendant never demanded intercourse; inside the bedroom she disrobed. She testified that they then had intercourse without her consent. Although defendant at first refused to let her go until she "begged," afterward she went into the bathroom, cried, and after a while, heard the defendant snore. She dressed quickly, leaving behind her shoes in the living room, and went to her apartment, which was one or two minutes away, where she stayed "a while." Five to ten minutes after she got to her apartment, she phoned Scott Drake, who lived upstairs with Terri Hart, and told Drake that she had been raped. Drake and Hart went downstairs to her apartment where they stayed with her the rest of the night. When they arrived, the complainant was crying, shaking violently, sometimes screaming, near shock and hysterical. She repeated that she had been raped by defendant and that she wanted to hurt him for what he had done to her. She told Hart that defendant was yelling at her "about taking speed," which she denied having taken for "months back." Hart said that the complainant could not understand defendant's accusation since he said he had taken speed earlier that day, which the complainant thought was unusual for him. She stopped the complainant from returning to the defendant's apartment with a knife. Drake called the police approximately 2 1/2 hours after arriving.
On cross-examination she denied they fought partly because defendant accused her of taking speed. She admitted that she said on June 12 that she didn't think that she had grounds for rape, but she thought this was because she had had intercourse with defendant before that night.
An investigating officer testified that on arriving at defendant's apartment early that morning, defendant's living room was in disarray, with a planter tipped over and dirt scattered on the carpet, and a coffee table out of position. He had some difficulty waking defendant, who appeared intoxicated.
The examining physician, Dr. Bertrund, testified that there were "significant marks" about the victim's neck, and bruises on the wrist and one knee. There was additional testimony that stains found on her jeans could have been blood, but the test was inconclusive.
The defendant did not testify.
The defendant urges that the testimony of the complainant confirms that the sexual intercourse was with her consent and that the evidence does not prove rape beyond a reasonable doubt.
• 1, 2 Where a rape conviction turns on the complainant's testimony, it must be clear and convincing, or corroborated by other evidence. (People v. Wilcox (1975), 33 Ill. App.3d 432, 436.) When the victim retains the power to resist, voluntary submission, however reluctant, constitutes consent. (People v. Rossililli (1962), 24 Ill.2d 341, 347; People v. Jones (1975), 28 Ill. App.3d 896, 899.) No definite standard fixes the amount of resistance which the complainant must offer (People v. McCann (1979), 76 Ill. App.3d 184, 186), and resistance is unnecessary where it would be futile or endanger the victim, or where she is overcome by superior strength or paralyzed by fear. (People v. Clarke (1971), 50 Ill.2d 104, 109; People v. Smith (1965), 32 Ill.2d 88, 92.) The reviewing court will not set aside a verdict of rape unless the evidence is so palpably contrary to the finding or so unreasonably improbable or unsatisfactory that there is a reasonable doubt as to the guilt of the accused. People v. Reese (1973), 54 Ill.2d 51, 57-58; People v. Wilcox (1975), 33 Ill. App.3d 432, 436.
In this case complainant's testimony clearly shows resistance. While on the couch she pushed defendant away; she tried to leave defendant's apartment but was pushed back inside by defendant; she struggled and screamed when defendant's genitals came in contact with her; she struck his head with her fist, but he was on top and choked her, then struck her across the face with the back of his hand. True she did "elect" to go into defendant's bedroom where she disrobed, but this was only after defendant had choked her and she said she was afraid defendant would actually kill her. In this view, further resistance would have endangered her safety.
Defendant finds "dangerous parallels" between the case at bar and People v. DeFrates (1965), 33 Ill.2d 190, 195-96, where the supreme court reversed a rape conviction for insufficient corroboration of force by defendant and against the victim's will. Here by contrast, there was corroborating medical testimony indicating "significant" marks on her neck, and bruises on her wrist and on one knee. She said she was bleeding from two knuckles on her left hand, and stains found on her jeans were consistent with blood. The investigating officer on arrival found the defendant's living room in disarray. Neighbors testified that she was crying, shaking violently, and near shock when they arrived at the complainant's apartment. Significantly unlike the defendant in DeFrates, defendant here concedes that there was violence. DeFrates thus is distinguishable on the basis of medical testimony and corroborating circumstances. Also, the defendant in DeFrates directly testified as to the victim's consent, whereas here defendant chose not to testify; therefore, the complainant's testimony in this case was not directly controverted.
• 3, 4 Where, as here, the victim has resisted but further resistance could endanger her safety, the fact that the complainant went into the bedroom and removed her own clothes without being asked and did not continue to resist does not establish voluntary submission in view of the prior show of force. (People v. Houck (1977), 50 Ill. App.3d 274, 283; People v. Jones (1975), 28 Ill. App.3d 896, 900.) *fn1 The defendant's assertion that she had the physical power to resist in the bedroom is unsupported. The fact that she asked defendant "why didn't you tell me before that you liked me?" when he said he loved her, before going to his bedroom without a verbal threat, appears adequately explained by her testimony, which the jury apparently believed, that she was scared that defendant would kill her. (Cf. People v. Jones (1975), 28 Ill. App.3d 896, 898-900 (victim who said "let's get on with it," and first suggested that defendant take off his pants did not consent to intercourse where she explained that she "got really scared" and thought defendant would change his mind if she frightened him).) That there was a prior consensual relationship must be taken into account (People v. Mangiaracina (1981), 98 Ill. App.3d 606, 610; see also Ill. Rev. Stat. 1981, ch. 38, par. 115-7) but did not give defendant the license to force sexual acts which defendant testified on this occasion were against her consent. (People v. Wilcox (1975), 33 Ill. App.3d 432, 436.) Finally, the fact that the complainant let herself out of defendant's apartment after intercourse while defendant slept is consistent with rape, contrary to defendant's assertion, since it would amount to escape at first opportunity. (People v. Secret (1978), 72 Ill.2d 371, 378.) Her prompt complaint shortly thereafter was further corroboration of her testimony. People v. Edmond (1979), 76 Ill. App.3d 540, 546.
• 5 Where the act of sexual intercourse is not questioned, as here, the accused inherently is vulnerable to conviction on the basis of facts, known only to the complainant and the accused, which if accorded a slightly different interpretation could establish either guilt or innocence. (People v. Faulisi (1962), 25 Ill.2d 457, 461; People v. Porter (1973), 13 Ill. App.3d 893, 898.) For this reason the testimony of the complainant is required to be clear and convincing or independently corroborated. The complainant's testimony was here independently corroborated by circumstances indicating that a struggle took place in defendant's apartment, and her testimony, which the defendant could not directly controvert, was neither incredible nor improbable, but clear and convincing. In this view, defendant was proven guilty of rape beyond a reasonable doubt over his contention that the victim consented. *fn2
• 6 In seeking a new trial, the defendant claims that the trial court erred in admitting the testimony of her statements to others that she had been raped and the testimony of these other witnesses as to her claim. The defendant argues that the victim's complaint of rape occurred only after there had been time for reflection and thus that it should not have been admitted over his objection at trial as an exception to the hearsay rule. He also argues that the ...