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People v. Strait

OPINION FILED JULY 7, 1983.

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

v.

MYRON B. STRAIT, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Winnebago County; the Hon. Robert C. Gill, Judge, presiding.

JUSTICE VAN DEUSEN DELIVERED THE OPINION OF THE COURT:

After a bench trial, defendant, Myron B. Strait, a 34-year-old male, was convicted and sentenced for the offense of rape (Ill. Rev. Stat. 1979, ch. 38, par. 11-1) of his six-year-old stepdaughter. The court also found defendant guilty of indecent liberties with a child (Ill. Rev. Stat. 1979, ch. 38, par. 11-4(b)) but did not enter a judgment of conviction on that finding. Defendant appeals.

I

Defendant first contends that the convictions for rape and indecent liberties with a child must be reversed because the critical issues of penetration and identification were not proven beyond a reasonable doubt.

We first note that the trial court did not enter a judgment of conviction on its finding that defendant was guilty of indecent liberties with a child. Therefore, no issue with reference to the offense of indecent liberties is properly before us on appeal.

There was clear and convincing testimony by the victim's eight-year-old brother that established that their stepfather, after giving wine to both children, inserted his penis into the vagina of his six-year-old stepdaughter. While defendant contends that the brother's testimony was impeached, an examination of the record does not bear out this contention. In addition, the evidence disclosed considerable bleeding on the part of the victim and established a laceration in her vagina, which was sufficiently serious to cause her doctors to have her transferred to Children's Hospital in Chicago for repair surgery. Tests taken at the hospital disclosed the blood alcohol content of the six-year-old victim to be 257 milligrams per deciliter.

• 1-3 The credibility of the witnesses and the weight to be given their testimony rest with the trial judge (People v. Brownson (1982), 103 Ill. App.3d 476, 480, citing People v. Akis (1976), 63 Ill.2d 296). This court will not reverse the finding of the trial judge unless the evidence is so unsatisfactory, unreasonable, or improbable as to create a reasonable doubt of defendant's guilt. (People v. Edmond (1979), 76 Ill. App.3d 540, 545, citing People v. Reaves (1962), 24 Ill.2d 380.) The evidence substantiates the judgment of the trial court on both issues of penetration and identification.

II

Defendant also contends that there was insufficient evidence of force to establish the offense of rape.

• 4 People v. Riley (1967), 84 Ill. App.2d 296, is dispositive of this issue. Force is inherent in any act of intercourse with a six-year-old girl and a child of that age is conclusively presumed to be unable to legally consent to an act of carnal knowledge. 84 Ill. App.2d 296, 300.

Defendant contends that Riley is in direct conflict with People v. Mueller (1973), 54 Ill.2d 189, where our supreme court reversed a conviction for deviate sexual assault upon a seven-year-old girl holding that proof of actual force or threat of force was required. The Mueller decision was based upon language of section 11-3(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1967, ch. 38, par. 11-3(a)), which contains the requirement "by force or threat of force." In reaching its conclusion, the supreme court in Mueller relied heavily upon the committee's comments accompanying that section and which were particularly applicable to that section.

That decision has no application to the offense of rape, section 11-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 11-1). That statute defines rape and states that "(a) * * * Intercourse by force and against her will includes, but is not limited to, any intercourse which occurs in the following situations: (1) Where the female is unconscious; or (2) Where the female is so mentally deranged or deficient that she cannot give consent to intercourse." It is frivolous to suggest that a child of six, particularly with a blood alcohol content of 257 milligrams per deciliter, is not so mentally deficient that she cannot consent to intercourse.

III

• 5 Defendant's next contention is that the trial court abused its discretion in sentencing the defendant when it considered as evidence in aggravation numerous ...


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