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People v. Testa

OPINION FILED JUNE 7, 1983.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

THOMAS A. TESTA, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. William Cousins, Jr., Judge, presiding.

PRESIDING JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

Following a bench trial, defendant, Thomas A. Testa, was found guilty of attempt (rape). (Ill. Rev. Stat. 1981, ch. 38, par. 8-4(a).) The following post-trial defense motions were denied: (1) in arrest of judgment; (2) for a directed finding; (3) for a new trial; and (4) for a modification of the finding of guilt and a request for a finding of guilty but mentally ill. Defendant was sentenced to 15 years' imprisonment.

The appeal presents the following issues: (1) whether the information charging defendant with attempt (rape) was fatally defective and therefore void; (2) whether the sufficiency of the information may be challenged for the first time by a post-trial motion; (3) whether defendant was proved guilty of attempt (rape) beyond a reasonable doubt; (4) whether the trial court abused its discretion by sentencing defendant to the maximum term of 15 years; and (5) whether the trial court erred when it denied defendant's motion to modify the finding of guilt and refused to grant a hearing pursuant to section 5-2-6 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005-2-6), treating defendant as being guilty but mentally ill.

The facts elicited at trial show that on January 9, 1980, the 19-year-old victim *fn1 was returning to her apartment in Chicago, Illinois, after visiting her mother. She was being dropped off at her apartment building by a friend when she noticed another car pull into the parking lot and a man get out. The man, later identified as defendant, held the door to the apartment building as the victim passed and began a conversation with her as they entered the elevator. She pushed the elevator button for the second floor, and defendant indicated that he wanted the second floor. She exited on the second floor and was approaching her apartment door when grabbed from behind by defendant. Defendant spun her around and grabbed her by the throat, preventing her from screaming. She said: "He told me if I didn't do what he said, he would kill me, and he told me to shut up." She was told to lie on her back, which she did while defendant continued to hold her by the throat. Defendant unzipped her pants and ordered her to remove her pants and underwear from her right leg. Defendant began to lower his pants and got on top of her. Although she did not see defendant's genitals, she could feel his skin against her.

As defendant made several attempts to kiss her, she managed to use a chemical defense spray on defendant which she carried in a leather pouch attached to her key chain. After being sprayed with the chemical, defendant got up and ran down the hall and out the stairway door. She could see that defendant's pants were down to a point just above his knees. She went into her apartment and contacted a neighbor and the building security guards. Using a description of defendant and his car provided by the victim, the security guards apprehended defendant in the building parking lot and held him until police arrived. She identified defendant as the attacker when the Chicago police arrived. Defendant was then arrested.

The information charging defendant with the crime stated:

"* * * on January 9, 1980 in Cook County, Illinois Thomas A. Testa a male person of the age of fourteen years and upwards committed the offense of attempt in that he, with the intent to commit the offense of rape attempted to compel one [name omitted] a female not the wife of said Thomas A. Testa to submit to an act of sexual intercourse by force and against her will, in violation of chapter 38, section 8-4 Illinois Revised Statutes * * *."

At the close of the State's case in chief, defendant moved for a directed finding, arguing that the State failed to meet its burden of proof. The motion for a directed finding was denied. Defendant offered no defense. The trial court found defendant guilty of attempt (rape) and entered judgment on that finding.

Prior to sentencing, defendant filed a motion in arrest of judgment which challenged the sufficiency of the charging instrument, a motion for a new trial and a motion to modify the finding of guilt. Following argument, the motions were denied and defendant was sentenced to 15 years' imprisonment.

I

Initially, defendant contends, as he did in his motion in arrest of judgment, that the information lacked the specificity necessary to charge him with attempt (rape) and was therefore fatally defective. It is well established in Illinois that where the sufficiency of a charge is attacked in a motion in arrest of judgment, the standard for determining whether the information is deficient is whether the elements of the offense are set out in the information as required by section 111-3(a) of the Code of Criminal Procedure of 1963. (Ill. Rev. Stat. 1981, ch. 38, par. 111-3(a); People v. Simmons (1982), 93 Ill.2d 94, 99, 442 N.E.2d 891, citing People v. Lutz (1978), 73 Ill.2d 204, 211, 383 N.E.2d 171.) Section 111-3(a) demands that the charging instrument be in writing, stating the name of the offense and the relevant statutory provisions violated; setting forth the nature and elements of the offense and the date and county in which the offense occurred, and naming the accused if known or a reasonably certain description. (See People v. Phelan (1981), 99 Ill. App.3d 925, 929, 426 N.E.2d 925.) "Section 111-3 is designed to inform the accused of the nature of the offense with which he is charged so that he may prepare a defense and to assure that the charged offense may serve as a bar to subsequent prosecution arising out of the same conduct." (People v. Simmons (1982), 93 Ill.2d 94, 99-100.) An information which charges an offense in the language of the statute "is deemed sufficient when the words of the statute so far particularize the offense that by their use alone an accused is apprised with reasonable certainty of the precise offense with which he or she is charged." People v. Dickerson (1975), 61 Ill.2d 580, 582, 338 N.E.2d 184, quoting People v. Patrick (1967), 38 Ill.2d 255, 258, 230 N.E.2d 843.

• 1 Defendant relies upon our decision in People v. Mack (1974), 24 Ill. App.3d 455, 321 N.E.2d 446. Mack is distinguishable due to its peculiar facts. The charging instrument in Mack was hand-written and was filed in court the day defendant was brought to trial. The charging instrument read as follows:

"`[T]hat Leonard J. Mack has, on Sept. 22, 1968 at 5502 South Everette, Chi. Ill. committed the offense of Attempt-rape in that on September 22, 1968 the defendant gained entrance to the victim's apartment. The defendant then awakened the victim * * * who was asleep in her bed. He held a knife in his hand and told the victim that he wanted to suck her titties. He then got into the bed with the victim, holding the knife to her throat. He then fondled the victim. During this period of time the victim was able to dissuade the offender from having relations with her. Before leaving the apt. the defendant took from the victim $10.00 U.S.C. On Oct. 9, 1968 the defendant returned. The complainant called the police and the offender was arrested while fleeing from her apartment. In violation of Chapter 38 Section 8-4 Illinois Revised Statute and Against the Peace and Dignity of The People of the State of Illinois.'" (24 Ill. App.3d 455, 458.)

That hand-written charging instrument clearly failed to meet the requirements of section 111-3. It was upon this ...


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