Appeal from the Circuit Court of Cook County; the Hon. Jack
Welfeld, Judge, presiding.
JUSTICE WHITE DELIVERED THE OPINION OF THE COURT:
Robert Fleagle was charged by indictment with rape, attempted rape, deviate sexual assault and attempted murder. The rape charge was dismissed by the State before trial. The attempted murder charge was dismissed by the trial court upon a motion for directed finding. After a bench trial, the trial judge made these findings:
"I find the defendant guilty of attempt rape and attempt deviate sexual assault. There will be a judgment on the attempt rape. Finding for no judgment on the second count."
The order sentencing defendant to 30 months' probation recites that the defendant had been adjudged guilty of both attempted rape and attempted deviate sexual assault. Defendant's notice of appeal, however, is only from a conviction of attempted rape and the sentence of probation. The parties have addressed this record as an appeal from convictions of both attempted rape and attempted deviate sexual assault. We will do the same.
Defendant argues on appeal that: (1) he was not proved guilty beyond a reasonable doubt of attempted rape and attempted deviate sexual assault; (2) he was deprived of due process of law because the judge predetermined the case after the complaining witness' direct testimony; (3) the trial court abused its discretion by excluding relevant testimony establishing that defendant did not have the physical strength to attack the complainant; and (4) he is deaf, and the trial court deprived him of his right to be present at his trial and of his right to confrontation of witnesses by making inadequate provisions for his comprehension of the proceedings against him.
Fleagle is a 32-year-old man who has been gradually losing his hearing after a bout of meningitis. Complainant testified that she thought that he was totally deaf. She was a friend of his wife's and had known defendant for about a year prior to the incident in question. On June 11, 1982, at approximately 2 a.m., complainant returned home from Mugsy's Pub and while fully clothed fell asleep on a couch. Sometime after 3 a.m. she was awakened by a knocking sound. She got up and saw defendant at the door. She admitted him to her apartment and wrote a note asking him why he was there. Defendant wrote back that the buses had stopped running to Summit, where he lived, and that he could not get a ride; he asked if he could stay at complainant's apartment. Complainant consented, provided that he slept on the floor. She gave him some bedding and went back to sleep on the couch.
The next thing complainant remembered was being unable to breathe. She realized that she was being smothered by a pillow. She saw defendant standing over her with one leg on her stomach and the other on the floor. Defendant struggled with her and choked her until she became unconscious. When complainant awoke, she was on her back with her dress up and her panties gone. Defendant was undressed and was kneeling between her legs. At this point, defendant choked her again; he then pulled complainant toward his erect penis.
Complainant testified further that she struggled and screamed to her neighbor for help. She managed to escape and ran out of her apartment, screaming that she had been raped. This part of complainant's testimony was corroborated by her neighbors and a police officer.
Subsequently, complainant was taken to the emergency room of McNeal Memorial Hospital and was treated by Nurse Doris Morris and Dr. Paul Volkman. Nurse Morris testified that complainant had scratch marks on her neck, her clothing was ripped and she was emotionally upset.
Fleagle testified that complainant was affectionate toward him and invited him to her house while they were in the Playground Lounge on the afternoon of June 10, 1982. This portion of Fleagle's testimony was corroborated by two witnesses, a friend and the owner of the lounge. Fleagle stated that neither he nor complainant took off their clothes while he was at her home. He denied that he exposed his genitalia to complainant and denied that he attempted to have sexual relations with her. He testified that any sexual contact that took place that morning was instigated by complainant.
Defendant first argues that he was not proved guilty beyond a reasonable doubt of attempted rape and attempted deviate sexual assault, because the testimony of the complainant was inconsistent, incredible and impeached by other witnesses. We do not agree.
Defendant points to various inconsistencies in the complainant's testimony, particularly in regard to where she was during the 12 hours before the incident; how many drinks she had while at the Playground Lounge; whether Ladawn Brown understood the complainant's cries that she had been raped and whether she told the police that she was attacked in the bedroom or in the living room. Most of the inconsistencies refer to collateral matters relating to how the incident occurred and are not probative of whether the defendant committed the crimes. See People v. Triplett (1981), 99 Ill. App.3d 1077, 1085-86, 425 N.E.2d 1236; People v. Tribett (1981), 98 Ill. App.3d 663, 679, 424 N.E.2d 688.
• 1-3 The issue here is essentially a question of credibility, with the complaining witness relating one version of events and the defense witnesses portraying a completely different picture. Since the inconsistencies are minor, they affect only complainant's credibility and the weight given her testimony. It is well settled that in a bench trial, the credibility of witnesses and the relative weight to be given their respective testimony are for the determination of the trier of fact. (People v. Williams (1976), 44 Ill. App.3d 143, 358 N.E.2d 58.) Indeed, it is not the duty or privilege of a reviewing court to substitute its judgment as to the credibility of witnesses. That duty is for the trier of fact, who heard the evidence presented and observed the demeanor of the witnesses. (People v. Novotny (1969), 41 Ill.2d 401, 244 N.E.2d 182.) A reviewing court will not reverse a criminal conviction unless the evidence is so unreasonable, improbable or unsatisfactory as to raise a reasonable doubt of defendant's guilt. (People v. Watson (1982), 106 Ill. App.3d 315, 436 N.E.2d 7.) In our view, the testimony was not so unreasonable or improbable as to raise a reasonable doubt of defendant's guilt. For a reversal, defendant must show substantial evidence that will raise a reasonable doubt.
• 4 Defendant also contends that, although complainant's testimony may be sufficient to support his conviction for attempted deviate sexual assault, it is not sufficient to support his conviction for attempted rape. He claims that there is no testimony indicating that he ever made an overt move toward the genital area of complainant. However, we point out that complainant awoke to find that her skirt and slip had been pulled to her waist, her blouse was open and defendant was nude, kneeling between her legs. This evidence was sufficient for the court to find that defendant had the intent to commit rape and had taken a substantial step toward the commission of that offense. (See Ill. Rev. Stat. 1981, ch. 38, par. 8-4(a).) The fact that the assailant's intent was not verbalized and that ...