Appeal from the Circuit Court of Cook County; the Hon. Roger
J. Kiley, Jr., Judge, presiding.
PRESIDING JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 26, 1983.
Defendant, George Margiolas, was charged in a one-count indictment with the offense of rape. (Ill. Rev. Stat. 1979, ch. 38, par. 11-1.) Following a bench trial, defendant was found guilty of the lesser included offense of misdemeanor battery based on contact of an insulting or provoking nature. (Ill. Rev. Stat. 1979, ch. 38, par. 12-3(a)(2).) The sentence imposed was that of one-year probation, with the special condition that defendant spend 90 days in the Cook County Work Release Center.
Two grounds for reversal are presented by defendant: first, that misdemeanor battery based on an insulting or provoking contact is not a lesser included offense of rape; and second, that the evidence failed to show beyond a reasonable doubt that he committed a simple battery on the complainant.
On November 14, 1981, at approximately 11:30 p.m., complainant drove alone to a restaurant where defendant was employed as a cook. Upon her arrival, complainant, believing the restaurant to be open, entered and asked defendant for a sandwich. Defendant refused, stating that they were closed for the night; however, due to complainant's persistence, defendant offered her a piece of cheese which she refused to eat. Complainant then indicated a desire to leave the premises, at which point defendant took hold of her arm and escorted her toward an exit located in a rear bedroom of the building.
Once in this bedroom, defendant attempted to unbutton complainant's blouse, telling her "Come on, baby. Give me some." Despite complainant's verbal objection "Don't do that!" accompanied by her attempt to stop him by grabbing his hand, defendant continued to fumble with her blouse until it was unbuttoned halfway. Using his hand, defendant forced complainant to sit on a bed, and then proceeded to pull down her pants and underpants. While defendant unzipped his trousers, complainant laid back on the bed and told him, "Just don't hurt me." Defendant then got on top of complainant and had sexual intercourse with her.
Immediately following the act of intercourse, defendant ran into another room. Complainant repeatedly called for him, but he did not respond. She thereupon left the building through a door located directly next to the bed. This door had been ajar approximately two inches during the entire incident. Complainant drove home and then, after talking with her two daughters, notified the authorities at approximately 1 a.m. and thereafter was taken to St. Bernard's Hospital where she was treated and released.
On November 27, 1981, complainant identified defendant in a police lineup as the man who had nonconsensual sexual intercourse with her on the night of November 14, 1981. Defendant was subsequently charged in a one-count indictment with having committed the offense of rape.
At trial, the court granted defendant's motion for a directed finding as to the rape charge due to the lack of evidence of resistance, as well as the lack of evidence of "futility for fear." The lower court then ordered the trial to proceed as to the lesser included offense of battery based on contact of an insulting or provoking nature. The defense, however, decided to rest at this point. The court thus entered a finding of guilty predicated on the fact that, though there was no manifestation of resistance on part of complainant so as to indicate use of force by defendant, the evidence clearly showed that complainant "absolutely had no interest * * * in Mr. Margiolas or his advances." It is from this conviction which defendant now appeals.
• 1, 2 Defendant initially contends that, as a general proposition, simple battery based on contact of an insulting or provoking nature is not a lesser-included offense of rape. We disagree.
In order to sustain a conviction for a lesser offense on an indictment charging only a greater offense, every element of the lesser must be included in the greater. People v. King (1966), 34 Ill.2d 199, 200, 215 N.E.2d 223; see also People v. Smith (1980), 78 Ill.2d 298, 306, 399 N.E.2d 1289.
The trial court in the present case granted defendant's motion for a directed finding as to the rape charge since the facts failed to demonstrate evidence of resistance or futility for fear. However, defendant was subsequently convicted of misdemeanor battery under section 12-3(a)(2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 12-3(a)(2)), which provides that: "A person commits battery if he intentionally or knowingly without legal justification and by any means, * * * makes physical contact of an insulting or provoking nature with an individual."
In support of defendant's argument that battery based on an insulting or provoking contact is not a lesser included offense of rape, he relies heavily on People v. Mays (1982), 91 Ill.2d 251, 437 N.E.2d 633. This reliance, however, is misplaced since the Mays court held only that battery based on bodily harm is not a lesser included offense of rape. (91 Ill.2d 251, 256.) Furthermore, we note that the Mays court specifically stated that it was not ...